Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance, 40066-40195 [2024-09237]

Agencies

• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 89, Number 91 (Thursday, May 9, 2024)]
[Rules and Regulations]
[Pages 40066-40195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09237]



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Vol. 89

Thursday,

No. 91

May 9, 2024

Part IV





Department of Health and Human Services





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45 CFR Part 84





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

Federal Register / Vol. 89 , No. 91 / Thursday, May 9, 2024 / Rules 
and Regulations

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 84

RIN 0945-AA15


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

AGENCY: U.S. Department of Health and Human Services.

ACTION: Final rule.

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SUMMARY: 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.

DATES: 
    Effective date: This rule is effective July 8, 2024.
    Incorporation by reference: 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.

FOR FURTHER INFORMATION CONTACT: 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 [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Overview of the Final Rule
III. Response to Public Comments on the Proposed Rule
IV. Executive Order 12866 and Related Executive Orders on Regulatory 
Review

I. Background

    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.\1\
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    \1\ 29 U.S.C. 794.
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    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.\2\ 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.\3\
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    \2\ 42 U.S.C. 12132.
    \3\ 42 U.S.C. 18116.
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    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.\4\ 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.
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    \4\ 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 Bowen v. Amer. Hosp. Ass'n, 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).
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    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).\5\
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    \5\ 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 Federal 
Register. OCR subsequently received letters urging HHS to address 
the issues in the RFI.
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II. Overview of the Final Rule

    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: https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-A/part-84.

III. Response to Public Comments on the Proposed Rule

    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.

Subpart A--General Provisions

    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, Sec. Sec.  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.
Purpose and Broad Coverage (Sec.  84.1)
    Proposed Sec.  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 Sec.  84.1(b) stated that the definition of ``disability'' 
shall be construed broadly in favor of expansive coverage to the 
maximum extent

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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 Sec.  84.1 are set forth 
below.
    Comment: 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.
    Response: The Department appreciates the commenters' input.
Summary of Regulatory Changes
    We are finalizing Sec.  84.1 as proposed with no modifications.
Application (Sec.  84.2)
    Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  84.2 are 
set forth below.
    Comments: The Department received several comments asking for 
clarification of the types of entities covered by section 504. Many 
mentioned specific entities and asked whether they are covered. Others 
requested that the Department provide a list of all covered entities.
    Response: Most of these commenters were essentially asking for a 
more detailed explanation of what constitutes ``Federal financial 
assistance,'' the prerequisite to section 504 coverage, than what 
appeared in the proposed rule's definition. The Department's 
interpretation of Federal financial assistance and the types of 
entities covered by this rule can be found in the discussion of Federal 
financial assistance contained at Sec.  84.10, the definitions section 
of the rule.
Summary of Regulatory Changes
    For the reasons set forth above and considering comments received, 
we are finalizing Sec.  84.2 as proposed with no modifications.
Relationship to Other Laws (Sec.  84.3)
    Proposed Sec.  84.3 provided an explanation of the relationship of 
the proposed regulation to existing laws. The section provided that 
this part does not invalidate or limit remedies, rights, and procedures 
of any other Federal law, State, or local law that provides greater or 
equal protection for the rights of individuals with disabilities and 
individuals associated with them.
    The comments and our responses to Sec.  84.3 are set forth below.
    Comments: The Department received many comments, including from 
multiple disability rights organizations, concerning the relationship 
of this regulation to other laws. Several commenters mentioned the 
importance of ensuring that laws providing more protection such as the 
ADA are not affected by this regulation. One commenter remarked that 
the principle encompassed in this section is fundamental to maintaining 
a comprehensive support system for individuals with disabilities as it 
recognizes that laws are layered and work together. Another commenter 
urged the Department to adopt this section to ensure that any new 
Federal requirements offer a floor, but not a ceiling, for the 
protection of disability rights. Many organizations representing 
individuals with disabilities asked the Department to clarify how this 
regulation interacts with section 1557.
    Another commenter asked about the relationship of section 504 to 
State laws and whether Federal law always supersedes State law.
    Response: The Department appreciates commenters' support for this 
provision. In developing this regulation, we have been closely 
coordinating within the Department on the section 1557 rule, and we 
will continue this close coordination on the impact of the 504 rule and 
its relationship to other applicable laws, including section 1557, in 
the future. We will consider developing guidance and technical 
assistance as needed on these topics in the future.
    As for whether Federal laws always supersede State laws, we note 
that standard principles of preemption apply under section 504.
Summary of Regulatory Changes
    For the above reasons and considering comments received, we are 
finalizing Sec.  84.3 as proposed with no modifications.
Disability (Sec.  84.4)
    Proposed Sec.  84.4 provided a detailed definition of disability 
implementing the ADAAA, which amended section 504 to adopt the ADAAA 
definition of disability. The proposed rule largely incorporated the 
definition contained in the ADA title II regulation and was intended to 
ensure consistency between the ADA and section 504. The only 
differences between the definition of disability in Sec.  84.4 and the 
definition of disability in the ADA title II regulation were updates in 
terminology and the addition of long COVID, a condition that did not 
exist when the ADA regulation was published, to the list of physical 
and mental impairments.
    Proposed Sec.  84.4(a)(1) stated that, with respect to an 
individual, disability means a physical or mental impairment that 
substantially limits one or more of the major life activities of such 
individual; a record of such an impairment; or being regarded as having 
such an impairment. Proposed Sec.  84.4(a)(2) stated that the 
definition of disability shall be construed broadly in favor of 
expansive coverage to the maximum extent permitted by the terms of 
section 504.
    Proposed Sec.  84.4 provided detailed definitions of the terms used 
in Sec.  84.4(a)(1). It defined physical or mental impairment (Sec.  
84.4(b)), major life activities (Sec.  84.4(c)), substantially limits 
(Sec.  84.4(d)), has a record of such an impairment (Sec.  84.4(e)), is 
regarded as having such an impairment (Sec.  84.4(f)), and it included 
a list of conditions excluded from the definition (Sec.  84.4(g)). At 
Sec.  84.4(d)(2), it provided a list of predictable assessments, 
circumstances where the inherent natures of the specific impairments 
will, as a factual matter, virtually always be found to impose a 
substantial limitation on a major life activity, and for which the 
necessary individualized assessment should be particularly simple and 
straightforward (e.g., deafness substantially limits hearing).

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    At proposed Sec.  84.4(b)(2), the rule included long COVID as a 
physical or mental impairment. This inclusion follows guidance issued 
on July 26, 2021, from the Department of Justice (DOJ) and HHS on how 
long COVID can be a disability under the ADA, section 504, and section 
1557.\6\
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    \6\ See U.S. Dep't of Health & Human Servs., U.S. Dep't of 
Justice, Guidance on ``Long COVID'' as a Disability Under the ADA, 
section 504, and section 1557 (July 26, 2021), https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/.
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    When the Department proposed section 84.4(g), it addressed 
exclusions from section 504 coverage by taking language directly from 
the text of the Rehabilitation Act.\7\ Section 84.4(g) now states that 
the term ``disability'' does not include the terms set forth at 29 
U.S.C. 705(20)(F). That statutory text excludes gender identity 
disorders not resulting from physical impairments from the definition 
of disability. The Department noted in the preamble of the proposed 
rule that an individual with gender dysphoria may have a disability 
under section 504 and that restrictions that prevent, limit, or 
interfere with otherwise qualified individuals' access to care due to 
their gender dysphoria, gender dysphoria diagnosis, or perception of 
gender dysphoria, may violate section 504.
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    \7\ 29 U.S.C. 705(20)(F).
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    The comments and our responses to Sec.  84.4 are set forth below.
    Comments: Commenters expressed strong support for the Department's 
revised definition of disability, for complying with the ADAAA, and for 
ensuring consistency with the Department of Justice's ADA regulatory 
definition of disability. Commenters also expressed approval for the 
specific inclusion of long COVID as a physical or mental impairment.
    Response: Accordingly, the Department has retained the approach and 
language of its proposed rule in this final rule and has retained the 
inclusion of long COVID as a physical or mental impairment.
Physical and Mental Impairments (Sec.  84.4(b))
    Comments: Although expressing support for the Department's 
expansion of its definition of disability, a number of commenters 
suggested adding specific conditions to the text of Sec.  84.4(b). 
These commenters suggested specifically including in the regulatory 
text a number of conditions as impairments, including, for example: 
obesity, hepatitis B, hepatitis C, endometriosis, developmental 
disabilities, intersex variations, and chemical and electromagnetic 
hypersensitivities (including allergies to fragrances). One commenter 
noted that ``autism'' was not included in the list of impairments, but 
that Autism Spectrum Disorder was included in Sec.  84.4(d)(2)(iii)(E). 
The comments included descriptions of the discrimination faced by 
persons with these conditions and how inclusion in the Department's 
section 504 regulation would provide a vehicle for their active 
participation in programs and activities funded by the Department.
    Response: The Department notes that the list of disorders and 
conditions in Sec.  84.4(b) is non-exhaustive and illustrative. The 
preamble to the DOJ's title II ADA regulation explains why there was no 
attempt to set forth a comprehensive list of physical and mental 
impairments. That preamble states ``[i]t is not possible to include a 
list of all the specific conditions, contagious and noncontagious 
diseases, or infections that would constitute physical or mental 
impairments because of the difficulty of ensuring the comprehensiveness 
of such a list, particularly in light of the fact that other conditions 
or disorders may be identified in the future.'' \8\ The Department 
shares this view. Failure to include any specific disorder or condition 
does not mean that that condition is not a physical or mental 
impairment under section 504 or the rule. No negative implications 
should be drawn from the omission of any specific impairment in the 
list of impairments in Sec.  84.4(b). In fact, the Department notes 
that its rule of construction for the definition of disability is that 
the definition of disability is to be construed broadly in favor of 
expansive coverage to the maximum extent permitted by the terms of 
section 504.
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    \8\ 28 CFR part 35, appendix B.
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    As a result, the Department has decided not to add any further 
specific disorders or conditions to the regulatory text of Sec.  
84.4(b). This approach has the added benefit of ensuring a consistent 
interpretation of this important statutory term that is shared by both 
section 504 and both titles II and III of the ADA and avoids any 
confusion that might result from having related Federal disability 
rights regulations with different language for the same term.
    The Department wishes to make clear, however, that the conditions 
proffered by commenters may constitute a physical or mental impairment 
as that term is used in section 504. For example, obesity, without any 
accompanying comorbidities, may be included in the phrase ``any 
physiological disorder or condition'' and thus constitute a physical 
impairment for higher-weight individuals. Similarly, intersex 
variations may result from physical conditions that are structured or 
function differently from most of the population and affect the 
endocrine, reproductive, and/or genitourinary systems of an individual, 
or may be evidenced by anatomical loss affecting one or more of the 
body's systems, and thus be included within the phrase ``any 
physiological disorder or condition.'' The Department received comments 
asking that we add other, specific conditions to the list of physical 
and mental impairments. While many conditions may constitute a physical 
or mental impairment as that term is used in section 504, it is not 
necessary for the Department to add these conditions to the rule as the 
Department's list is not an exhaustive list.
    Of course, being included as a physical or mental impairment does 
not mean that a particular individual has a disability covered by 
section 504. To be covered by section 504 and Department's final rule, 
the impairment must then substantially limit one or more of the 
person's major life activities. In addition, section 504 coverage could 
be established for a particular individual if that person has a record 
of the impairment that substantially limited one of more of their major 
life activities; or if they were subjected to a prohibited action 
because of an actual or perceived physical or mental impairment, 
whether or not that impairment substantially limits, or is perceived to 
substantially limit, a major life activity.
Gender Dysphoria
    Comments: The preamble of the Department's NPRM included in its 
analysis of Sec.  84.4(g), Exclusions, a discussion of section 504's 
exclusion of gender identity disorders not resulting from physical 
impairments, and a recent Fourth Circuit case, Williams v. Kincaid,\9\ 
concluding that gender dysphoria can be a disability under section 504 
and the ADA. In the NPRM, the Department agreed with the Fourth 
Circuit's recent holding that gender dysphoria may constitute a 
disability under section 504 and that restrictions that prevent, limit, 
or interfere with otherwise qualified individuals' access to care due 
to their gender dysphoria, gender dysphoria diagnosis, or

[[Page 40069]]

perception of gender dysphoria may violate section 504.
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    \9\ Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022, cert. 
denied, 600 U.S. __ (June 30, 2023) (No. 22-633).
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    The inclusion of this discussion in the preamble elicited a robust 
discussion from commenters. Comments from civil rights and patient 
advocacy organizations representing persons with disabilities supported 
the concept of coverage of gender dysphoria in the section 504 rule but 
sought changes that would strengthen the Department's inclusion of 
gender dysphoria by including specific regulatory text (e.g., by making 
clear that gender dysphoria is not included within the scope of gender 
identity disorders) and by expanding and clarifying protections.
    Commenters representing certain religious organizations and some 
State officials, among others, objected to the Department's conclusion 
that gender dysphoria can be a disability covered under section 504. 
The comments asserted that the Kincaid decision is only one court 
decision, that the dissent in the case was more compelling, and that 
the Department has ignored contrary court decisions.\10\ These 
commenters stated that the Department's view could adversely impact 
them because section 504 does not have an exemption for religious 
entities. In the alternative, the commenters sought significantly more 
detail regarding what actions will be prohibited or required by 
inclusion of the language.
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    \10\ See, e.g., Duncan v. Jack Henry & Assocs., Inc., 617 F. 
Supp. 3d 1011, 1055-57 (W.D. Mo. 2022); Lange v. Houston Cnty., 608 
F. Supp. 3d 1340, 1362 (M.D. Ga. 2022); Doe v. Northrop Grumman Sys. 
Corp., 418 F. Supp. 3d 921 (N.D. Ala. 2019); Parker v. Strawser 
Constr. Inc., 307 F. Supp. 3d 744, 754-55 (S.D. Ohio 2018); Gulley-
Fernandez v. Wis. Dep't of Corr., 2015 WL 7777997, at *3 (E.D. Wis. 
Dec. 1, 2015); but see Doe v. Mass. Dep't of Corr., 2018 WL 2994403 
(D. Mass. Jun. 14, 2018); Blatt v. Cabela's Retail, Inc., 2017 WL 
2178123 (E.D. Pa. May 18, 2017); Guthrie v. Noel, 2023 WL 8115928, 
at *13 (M.D. Pa. Sept. 11, 2023).
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    Response: As noted above, the Department's section 504 NPRM 
preamble noted that gender dysphoria may constitute a disability under 
section 504 and that restrictions that prevent, limit, or interfere 
with otherwise qualified individuals' access to care due to their 
gender dysphoria, gender dysphoria diagnosis, or perception of gender 
dysphoria may violate section 504.
    In the Williams case, the only Federal appellate court to consider 
the issue of coverage for gender dysphoria under section 504 and the 
ADA concluded that the language excluding gender identity disorders 
from coverage did not encompass gender dysphoria. The Fourth Circuit 
reversed and remanded the district court's dismissal of the case, 
holding that the plaintiff ``has plausibly alleged that gender 
dysphoria does not fall within section 504's and the ADA's exclusion 
for ``gender identity disorders not resulting from physical 
impairments.'' \11\ The court noted that the term ``gender dysphoria'' 
was not used in section 504 or the ADA nor in the then current version 
of the Diagnostic and Statistical Manual of Mental Disorders (DSM). In 
2013, the phrase was changed in the DSM from ``gender identity 
disorder'' to ``gender dysphoria,'' a revision that the court said was 
not just semantic but reflected a shift in medical understanding. The 
court reasoned that gender dysphoria is not included in the scope of 
the exclusion for ``gender identity disorders,'' but that even if 
gender dysphoria were such a disorder, plaintiff's complaint ``amply 
supports [the] inference'' that her gender dysphoria ``result[s] from a 
physical impairment.'' \12\
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    \11\ Id. at 780.
    \12\ Id. at 773-74 (citing 42 U.S.C. 12211(b)); see also id. at 
770-72.
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    Recognizing ``Congress' express instruction that courts construe 
the ADA in favor of maximum protection for those with disabilities,'' 
\13\ the court said that it saw ``no legitimate reason why Congress 
would intend to exclude from the ADA's protections transgender people 
who suffer from gender dysphoria.'' \14\ The Department agrees with the 
court's holding that restrictions that prevent, limit, or interfere 
with otherwise qualified individuals' access to care due to their 
gender dysphoria, gender dysphoria diagnosis, or perception of gender 
dysphoria may violate section 504.\15\
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    \13\ Id. at 769-70.
    \14\ Id. at 773.
    \15\ The Department's interpretation is also consistent with the 
position taken by the Department of Justice's Civil Rights Division 
on the proper interpretation of ``gender identity disorders'' under 
the ADA and section 504. See Statement of Interest, Doe v. Ga. Dep't 
of Corr., No. 23-5578 (N.D. Ga. Jan. 8, 2024), ECF No. 69.
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    The Department will approach gender dysphoria as it would any other 
disorder or condition. If a disorder or condition affects one or more 
body systems, or is a mental or psychological disorder, it may be 
considered a physical or mental impairment. The existing section 504 
rule includes the following as body systems: ``neurological, 
musculoskeletal, special sense organs, respiratory (including speech 
organs), cardiovascular, reproductive, digestive, genitourinary, 
immune, circulatory, hemic, lymphatic, skin, and endocrine.'' The issue 
before the Department then is whether gender dysphoria is a condition 
that can affect any bodily system or is a mental or psychological 
condition. Such an inquiry is necessarily a fact-based, individualized 
determination but the Department agrees with the Fourth Circuit that 
gender dysphoria can satisfy this standard. A determination in an 
individual situation that gender dysphoria is a physical or mental 
impairment is, of course, not the end of the question. It must then be 
determined whether the impairment substantially limits any major life 
activity. Depending on that analysis, gender dysphoria may rise to the 
level of a disability under section 504 and would provide protection 
against discrimination in programs or activities funded by HHS that is 
prohibited by section 504.
    As to the lower court cases that held that gender dysphoria is 
included within the definition of gender identity disorders, the 
Department believes that the conclusion the Fourth Circuit reached in 
the Williams case and the view expressed in the United States' 
Statement of Interest in Doe v. Georgia Department of Corrections 
reflect the more compelling reading of the statute. That interpretation 
is that, when Congress enacted the ADA in 1990, ``gender identity 
disorders'' referred to a person's mere identification with a different 
gender than the sex they were assigned at birth, a condition that is 
not a disability. Gender dysphoria, by contrast, may be a disability, 
one that is characterized by clinically significant distress or 
impairment in social, occupational, or other important areas of 
functioning; thus gender dysphoria does not fall with the statutory 
exclusions for gender identity disorders.\16\
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    \16\ See also Am. Psychiatric Ass'n, Diagnostic and Statistical 
Manual of Mental Disorders (5th ed. text rev. 2022), https://perma.cc/U4KQ-HA98.
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    As to concerns about religious freedom and conscience, the section 
504 rule does not contain provisions on those issues. However, the 
Department does have other statutes and regulations that apply 
protections in these areas. For example, in January 2024, the 
Department finalized a rule clarifying the Department's enforcement of 
the Federal health care conscience statutes, including that OCR 
receives and handles complaints regarding these statutes.\17\ The 
Department will comply with all applicable law. We decline to make 
changes to this rule.
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    \17\ 89 FR 2078 (Jan. 11, 2024).
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Major Life Activities (Sec.  84.4(c))
    Comments: In the Department's NPRM, proposed Sec.  84.4(c) 
significantly expanded the range of major life

[[Page 40070]]

activities in the current rule in response to the ADAAA and DOJ's ADA 
rules, specifically including major bodily functions and providing an 
expanded non-exhaustive list of examples of major life activities. It 
also indicated that ``major'' should be interpreted in a more expansive 
fashion than previously. Commenters supported the Department's approach 
to defining and interpreting the term ``major life activities,'' but 
suggested that the Department should add to the list. One commenter 
suggested that the major life activity of ``caring for oneself'' was 
too narrow in scope and that should be expanded to address caring for 
other family members, taking care of pets or service animals, and 
caring for guests or visitors to the home, noting that caring for 
others, no matter what the relationship, is a common major life 
activity. Another commenter suggested including recognition of mental 
health and cognitive abilities in this section.
    Response: The Department appreciates these comments but has 
determined it is not necessary to add these or any other new terms to 
the list of major life activities in Sec.  84.4(c). This list is, by 
its own terms, not exhaustive and thus other activities can certainly 
be considered major life activities. The Department also wants to avoid 
any confusion that may be caused by including terms in this regulatory 
language that are different than those found in the parallel sections 
defining disability under the ADA and titles II and III of the ADA 
regulations of DOJ and under title I of the ADA and the regulations of 
the Equal Employment Opportunity Commission (EEOC).
    As for the coverage of mental health issues, the Department notes 
the inclusion of learning, concentrating, and thinking as major life 
activities in Sec.  84.4(c)(1)(i) and the operation of neurological 
systems as a major bodily function in Sec.  84.4(c)(1)(ii). Further, 
because mental health and cognitive capability are central to 
functioning and well-being, impairment in either may significantly 
impact major life activities such as working, sleeping, and caring for 
oneself or others.
Predictable Assessments
    Comments: Commenters noted that the list of examples in Sec.  
84.4(d)(2)(iii), when referring to the Human Immunodeficiency Virus 
(HIV) infection, did not include the phrase ``whether symptomatic or 
asymptomatic'' even though that phrase was included in the list of 
physical or mental impairments in Sec.  84.4(b)(2) and requested that 
the phrase be added in the final rule.
    Response: The Department agrees with the commenters that persons 
who have HIV are substantially limited in their immune function, 
whether or not they present with symptoms of the disease. Section 
84.4(d)(2)(iii)(J) of this rule includes HIV, and the provision of 
predictable assessments presumptively covers persons who have HIV, 
whether or not they are symptomatic. The Department also recognizes the 
need to have its regulatory provision here be consistent with the ADA's 
parallel regulation on the definition of disability, which does not 
include the phrase ``whether symptomatic or asymptomatic'' in the 
provision on predictable assessments. As a result, the Department will 
not add this phrase to the paragraph on predictable assessments to 
avoid any confusion that may result from having Federal regulations 
with different terminology on the same issue.
Outdated and Offensive Terminology
    Comments: Commenters were uniformly supportive of changing the 
terminology in the Department's existing section 504 rule from the use 
of ``handicap'' and ``handicapped individual'' to ``disability'' and 
``individual with a disability.'' One comment noted that this change 
from ``handicap'' to ``disability'' was more than just terminology and 
that it reflected issues overlaid with stereotypes, patronizing 
attitudes, and other emotional connotations. Commenters were also 
uniformly supportive of changing the terminology in the list of 
physical and mental impairments in Sec.  84.4(b)(2), and throughout the 
rule, from ``drug user'' to ``individual with a substance use 
disorder'' and ``alcoholic'' to ``individual with an alcohol use 
disorder.'' Some commenters, however, objected to use of the phrase 
``emotional or mental illness'' because it carries significant stigma, 
and suggested the use of more neutral terminology, such as ``person 
with a mental health condition.'' Other commenters objected to the 
terminology used in Sec.  84.4(g) on exclusions from coverage and 
suggested that the section be removed in its entirety.
    Response: The Department is aware that some of the terms used in 
its regulation have come to be understood, in common parlance, as 
having negative connotations or being pejorative.
    The terms that the Department proposed in the regulatory provision 
on exclusions, Sec.  84.4(g), are taken verbatim from the 
Rehabilitation Act at 29 U.S.C. 705(20)(F). Those terms had specific 
meanings when Congress added them to the statute decades ago and the 
Department is bound by these statutory exclusions. However, the 
Department appreciates that the terminology used in this section of the 
statute is now considered offensive to many communities. As such, we 
are revising the final section at Sec.  84.4(g) to cite to the relevant 
statutory text. This is a non-substantive change; the Department is 
still bound by the statutory exclusions cited at Sec.  84.4(g).
    With regard to the use of the terms ``emotional or mental illness'' 
in Sec.  84.4(b)(1)(ii) and ``emotional illness'' in Sec.  84.4(b)(2), 
the Department is substituting the neutral term ``mental health 
condition.'' Both the terms ``emotional or mental illness'' and 
``emotional illness'' are used in the definition of impairments 
contained in the definition of ``disability'' in Sec.  84.4(b). These 
terms are found in the ADA titles II and III regulations as well as in 
the EEOC regulations for title I of the ADA. Because these terms are 
regulatory, not statutory, the Department believes it appropriate in 
these circumstances to change the language to address usage concerns. 
The term ``mental health condition'' is neutral terminology that may 
help to reduce the negative connotations for people experiencing mental 
health conditions. The Department itself now uses the phrase ``mental 
health condition'' instead of emotional or mental illness in other 
contexts. The Department intends no difference in meaning with this new 
term and it will be interpreted consistently with the terms ``emotional 
or mental illness'' or ``emotional illness'' in the parallel ADA titles 
II and III regulations.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.4 as proposed with three 
modifications. First, we are replacing the phrase ``emotional or mental 
illness'' with ``mental health condition'' in Sec.  84.4(b)(1)(ii). 
Second, we are replacing the phrase ``emotional illness'' with ``mental 
health condition'' in Sec.  84.4(b)(2). Third, we are replacing a list 
of terms at Sec.  84.4(g) with a citation to the relevant passage of 
the statute that enumerates exclusions.
Notice (Sec.  84.8)
    Proposed Sec.  84.8 required recipients to make available to 
employees, applicants, participants, beneficiaries, and other 
interested persons information about this part and its applicability to 
the recipient's programs and activities, and to make the information 
available to them in such

[[Page 40071]]

manner as the head of the agency or their designee finds necessary to 
apprise such persons of the protections against discrimination assured 
them by section 504 and this part.
    The comments and our responses regarding Sec.  84.8 are set forth 
below.
    Comment: A commenter asked whether a statement on a website about 
both the ADA and section 504 is enough and whether this notice 
requirement is different from the current requirements. Another 
commenter asked whether recipients are required to prominently post the 
notice and provide information about filing a complaint.
    Response: This notice requirement is identical to the notice 
requirement in the ADA title II regulations. Recipients are required to 
disseminate sufficient information to applicants, participants, 
beneficiaries, and other interested persons to inform them of the 
rights and protections afforded by section 504 and this regulation. 
Methods of providing this information include, for example, the 
publication of information in handbooks, manuals, and pamphlets that 
are distributed to the public, including online material, to describe a 
recipient's programs and activities; the display of informative posters 
in service centers or other public places; or the broadcast of 
information by television or radio. In providing the notice, the 
recipient must comply with the requirements for effective communication 
in Sec.  84.77. The preamble to that section, along with the preamble 
from the NPRM, gives guidance on how to effectively communicate with 
individuals with disabilities.
    In response to the question of whether the existing notice 
requirements in Sec.  84.8 are different than those in this final rule, 
the biggest difference is that the existing regulations only apply to 
recipients with fifteen or more employees. In addition, the existing 
notice provisions provide more detailed requirements than are contained 
in this final rule. For example, the existing notice section requires 
an identification of the responsible employee designated pursuant to 
Sec.  84.7(a). It also sets forth requirements for when the notice must 
be published, methods of publishing, and the types of documents that 
must contain the notice requirement.
    There is another notice provision at Sec.  84.52(b) in subpart F, 
Health, Welfare, and Social Services, which we are retaining. That 
section states that a recipient that provides notice concerning 
benefits or services or written material concerning waivers of rights 
or consent to treatment shall take such steps as are necessary to 
ensure that qualified individuals with disabilities, including those 
with impaired sensory or speaking skills, are not denied effective 
notice because of their disability.
    Section 84.7, Designation of responsible employee and adoption of 
grievance procedures, is retained in the final rule. Section 84.7(a) 
requires that recipients with fifteen or more employees designate at 
least one person to coordinate their efforts to comply with this part. 
Section 84.7(b) requires those recipients to adopt grievance procedures 
that incorporate due process standards and that provide for the prompt 
and equitable resolution of complaints. Although not required, we 
recommend that notices contain information about the coordinator and 
about the grievance procedures.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.8 as proposed with no 
modifications.
Definitions (Sec.  84.10)
    In Sec.  84.10 of the proposed rule, we set out proposed 
definitions of various terms. The comments and our responses are set 
forth below. Unless otherwise indicated, the definitions are retained 
as proposed.
Auxiliary Aids and Services
    Discussion of this term can be found at Sec.  84.77.
Archived Web Content
    The proposed rule defined ``archived web content'' as ``web content 
that is maintained exclusively for reference, research, or 
recordkeeping, is not altered or updated after the date of archiving, 
and is organized and stored in a dedicated area or areas clearly 
identified as being archived.''
    Comment: Some commenters requested clarity on the definition of 
archived web content. Some of these commenters stated that the word 
``maintain'' could have multiple meanings, such as simply continuing 
possession or engaging in repair and upkeep.
    Response: The Department added a new part to the definition to help 
clarify the scope of content covered by the definition and associated 
exception. The new part of the definition, the first part, specifies 
that archived web content is limited to three types of historic 
content: web content that was created before the date the recipient is 
required to comply with subpart I; web content that reproduces paper 
documents created before the date the recipient is required to comply 
with subpart I; and web content that reproduces the contents of other 
physical media created before the date the recipient is required to 
comply with subpart I.
    In addition to adding a new first part to the definition of 
archived web content, the Department made one further change to the 
definition from the NPRM. In the NPRM, what is now the second part of 
the definition pertained to web content that is ``maintained'' 
exclusively for reference, research, or recordkeeping. In the final 
rule, the word ``maintained'' is replaced with ``retained.'' The 
revised language is not intended to change or limit the coverage of the 
definition. Rather, the Department recognizes that the word 
``maintain'' can have multiple meanings relevant to this rule. In some 
circumstances, ``maintain'' may mean ``to continue in possession'' of 
property, whereas in other circumstances it might mean ``to engage in 
general repair and upkeep'' of property.\18\ In contrast, the third 
part of the definition states that archived web content must not be 
altered or updated after the date of archiving. Such alterations or 
updates could be construed as repair or upkeep, but that is not what 
the Department intended to convey with its use of the word 
``maintained'' in this provision. To avoid confusion about whether a 
recipient can alter or update web content after it is archived, the 
Department instead uses the word ``retained,'' which has a definition 
synonymous with the Department's intended use of ``maintain'' in the 
NPRM.\19\
---------------------------------------------------------------------------

    \18\ Maintain, Black's Law Dictionary (11th ed. 2019).
    \19\ See Retain, Black's Law Dictionary (11th ed. 2019) (``To 
hold in possession or under control; to keep and not lose, part 
with, or dismiss.'').
---------------------------------------------------------------------------

    Additional discussion of this term can be found at Sec.  84.85(a).
Companion
    The proposed rule defined a ``companion'' as ``a family member, 
friend, or associate of an individual seeking access to a program or 
activity of a recipient, who, along with such individual, is an 
appropriate person with whom the recipient should communicate.'' The 
same definition is contained in the general section of the 
communications subpart at Sec.  84.77(a)(2).
    Comments: Representatives from many disability rights organizations 
commented that the definition needs greater clarity. They said that it 
is critical that recipients confirm the companion's role and, as 
appropriate, obtain consent from the individual with a disability that 
they want the

[[Page 40072]]

companion to participate in their care. Some commenters noted that this 
concern is discussed somewhat in the communications section, but they 
suggested that it be made clear that these standards apply in all 
situations.
    A disability rights organization asked that we clarify that the 
determination as to who is an appropriate companion must rest with the 
individual with a disability (or their designated decision-maker 
pursuant to State law) and not with the recipient. They expressed the 
view that that this is critically important because to not do so might 
violate privacy laws and may also undermine the autonomy of people with 
disabilities. They requested that the clarification language be added 
to the text of the regulation.
    Another disability rights organization similarly requested changes 
to the regulatory text. They objected to the use of the term 
``companion,'' which they believed is based on the stereotype that 
treats all individuals with disabilities as eternal children who must 
have a companion to communicate with recipients. They also objected to 
the term because it implies that the companion is communicating with 
the recipient independently rather than revoicing or repeating what the 
person with disabilities wants to be expressed and understood. 
According to the organization, this perpetuates an endemic and 
unhealthy form of disability-based discrimination expressed in all 
facets of society, but especially in health care. Commenters suggested 
replacement of the term ``companion'' with the term ``communication 
intermediary'' or an equivalent term that more accurately describes the 
role. Their suggested definition for the new term is a person who 
assists an individual with a disability to effectively communicate, to 
be understood, and to understand others. The role of this person is to 
relay information. Recipients must communicate with the individual with 
a disability directly and respectfully, and they may not use the 
presence of the other person as a reason to evade that obligation.
    Response: We decline to revise the regulatory text, which is the 
same that appears in the ADA title II regulations at 28 CFR 
35.160(a)(2). While we appreciate commenters' concerns, the definition 
makes clear that the companion must be ``an appropriate person with 
whom the public entity should communicate.'' Consistent with the title 
II regulation, this means the companion must be ``someone with whom the 
public entity normally would or should communicate'' in the situation 
at hand.\20\ This requirement ensures that companions with disabilities 
receive effective communication even if the person that the companion 
accompanies is not an individual with a disability. As to the commenter 
who wanted a change in the word ``companion'' and provided language to 
describe the duties of that person, we do not believe that revisions in 
the text are needed, and it is beyond the scope of the Department's 
responsibility as the person with a disability will determine the 
appropriate duties for their companion. Accordingly, we decline to 
revise the definition of companion.
---------------------------------------------------------------------------

    \20\ 28 CFR part 35, appendix A at 668 (2023).
---------------------------------------------------------------------------

Conventional Electronic Documents
    Discussion of this term can be found in subpart I. The Department 
is deleting ``database file formats'' from the definition.
Current Illegal Use of Drugs
    The proposed rule said that ``current illegal use of drugs'' means 
illegal use of drugs that occurred recently enough to justify a 
reasonable belief that a person's drug use is current or that 
continuing use is a real and ongoing problem. This definition is 
identical to the one in the ADA title II regulations.
    Comments: The Department received many comments on this definition. 
They uniformly had the same concern about the meaning of ``current.'' 
Many commenters said that the definition, which comes from ADA 
regulations, is antiquated and does not take into account the 
importance of understanding that for people with substance use 
disorders, recurrence of use is common and it does not mean the 
treatment is not or will not be successful. Instead, in many cases it 
may mean that the current treatment plan is not working and should be 
revisited and revised. Commenters maintained that without an expansive 
and nuanced consideration of the non-linear nature of treatment and 
recovery, including possible recurrent use, protections for people with 
substance use disorders (SUD) are incomplete and inappropriately 
distinguished from other forms of disability.
    Response: The Department appreciates all commenters' feedback. The 
Department acknowledges commenters' concerns. However, the phrase 
``illegal use of drugs'' is used in both the ADA and the Rehabilitation 
Act. Congress' intended meaning for the phrase is clear. As explained 
in the preamble to the title II ADA regulations, the definition of 
``current illegal use of drugs'' is based on the report of an ADA 
Conference Committee, H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 64 
(1990). That Report says that ``current illegal use of drugs'' is use 
``that occurred recently enough to justify a reasonable belief that a 
person's drug use is current or that continuing use is a real and 
ongoing problem.'' Both the ADA and the Rehabilitation Act define 
``individual with a disability'' as not including an individual who is 
currently engaging in the illegal use of drugs when a covered entity or 
recipient acts on the basis of such use.
    We therefore decline to revise the definition of ``current illegal 
use of drugs.''
Direct Threat
    The proposed rule said that ``direct threat'' means a significant 
risk to the health or safety of others that cannot be eliminated by a 
modification of policies, practices, or procedures, or by the provision 
of auxiliary aids or services. With respect to employment, the term is 
as defined by the Equal Opportunity Commission's regulation 
implementing title I of the Americans with Disabilities Act of 1990, at 
29 CFR 1630.2(r) (https://www.ecfr.gov/current/title-29/section-1630.2#p-1630.2(r)).
    Comment: The Department received comments from many disability 
rights organizations recommending revisions to the term ``direct 
threat'' as defined by the EEOC pursuant to its authority under title I 
of the ADA. In addition, they objected to the statement in the proposed 
rule's preamble that a person who poses a direct threat is not 
``qualified.''
    Many commenters said that whether an individual is qualified is a 
threshold question for a person with a disability to establish, whereas 
whether an individual poses a direct threat is an affirmative defense 
for a recipient to establish. They recommended that we apply the direct 
threat analysis as set out in the ADA title II regulations and they 
provided a sentence that they would like inserted in the preamble.
    Response: We appreciate the commenters' feedback. We note, however, 
that the Department has no authority to change the definition in EEOC 
regulations promulgated under title I of the ADA.
    The definition of ``direct threat'' set forth in proposed paragraph 
(1) was added to be consistent with the ADA title II regulation and 
with the Supreme Court case of School Board of Nassau County v. 
Arline.\21\ As to the request that we insert the commenters'

[[Page 40073]]

suggested language into the commentary, we reiterate the statement in 
the NPRM preamble, which also mirrors appendix B to the ADA title II 
regulation, that ``[a]lthough persons with disabilities are generally 
entitled to the protection of this part, a person who poses a 
significant risk to others constituting a direct threat will not be 
`qualified' if reasonable modifications to the recipient's policies, 
practices, or procedures will not eliminate that risk.'' It is 
important that the interpretation of ``direct threat'' in paragraph (1) 
of this rule and its interpretation in the ADA title II regulations be 
consistent. Accordingly, we decline to revise the definition of 
``direct threat.''
---------------------------------------------------------------------------

    \21\ 480 U.S. 273 (1987).
---------------------------------------------------------------------------

Facility
    The proposed rule defined ``facility'' as ``all or any portion of 
buildings, structures, sites, complexes, rolling stock or other 
conveyances, roads, walks, passageways, parking lots, or other real or 
personal property, including the site where the building, property, 
structure, or equipment is located.''
    Comment: A commenter representing persons with disabilities 
suggested adding language to address drive-through services. The 
comment notes that courts have resisted accessibility requirements for 
drive-through services and that drive-throughs are an important point 
of access for obtaining prescription medication and were a first line 
of service at the start of the COVID pandemic. The comment recommended 
including ``product or service dispersing facilities and drive-
throughs'' in the list of items that constitute a facility.
    Response: The Department believes it is not necessary to include 
any new regulatory text because the facility housing drive-through 
services is already included within the expansive text of the existing 
language. Facility includes buildings, structures, passageways, and 
equipment, which will cover all the areas that constitute the drive-
through facility. In addition, if offered, drive-through services are a 
part of the recipient's program or activity and all the provisions of 
the section 504 rule will apply to this service, ensuring that persons 
with disabilities have access to this service.
    We have retained the proposed definition of ``facility.''
Federal Financial Assistance
    The proposed rule provided a detailed definition of ``Federal 
financial assistance'' as any grant, cooperative agreement, loan, 
contract (other than a direct Federal procurement contract or contract 
of insurance or guaranty), subgrant, contract under a grant or any 
other arrangement by which the Department provides or otherwise makes 
available assistance in the form of funds, services of Federal 
personnel, real or personal property or any interest in or use of such 
property, or any other thing of value by way of grant, loan, contract, 
or cooperative agreement. This definition is consistent with the 
definition in the existing regulation, with addition of ``direct 
Federal'' so that it reads ``(other than a direct Federal procurement 
contract or a contract of insurance or guaranty)''. No substantive 
change is intended from the existing definition.
    Comment: Several commenters asked that the Department make clear 
that tax-exempt status is not ``Federal financial assistance'' and thus 
does not trigger the application of section 504. They noted that 
several recent cases brought under title IX have held that tax-exempt 
status is ``Federal financial assistance.'' \22\ They also state that 
most other cases that have addressed whether tax-exempt status 
constitutes Federal financial assistance for purposes of statutes 
triggered by the receipt of such aid have held that tax-exempt status 
is not Federal financial assistance and thus does not trigger coverage 
of the statute in question.
---------------------------------------------------------------------------

    \22\ See E.H. v. Valley Christian Acad., 616 F.Supp.3d 1040 
(C.D. Cal. 2022); Buettner-Hartsoe v. Baltimore Lutheran High Sch. 
Ass'n, No. RDB-20-3132, 2022 WL 2869041 (D. Md. Jul. 21, 2022) E.H. 
v. Valley Christian Acad., 616 F.Supp.3d 1040 (C.D. Cal. 2022).
---------------------------------------------------------------------------

    Response: Generally, tax benefits, tax exemptions, tax deductions, 
and most tax credits are not included in the statutory or regulatory 
definitions of Federal financial assistance.\23\ While a few courts 
have held that tax-exempt status can constitute Federal financial 
assistance, most courts that have considered the issue have concluded 
that typical tax benefits are not Federal financial assistance because 
they are not contractual in nature.\24\ Accordingly, this Department 
generally does not consider tax exempt status to constitute Federal 
financial assistance. However, the definition of ``Federal financial 
assistance'' makes clear that Federal financial assistance that the 
Department plays a role in providing or administering is considered 
Federal financial assistance under this rule.
---------------------------------------------------------------------------

    \23\ See, e.g., 42 U.S.C. 2000d-1; 28 CFR. 42.102(c); 31 CFR 
28.105. See also U.S. Dep't of Justice, Title VI Legal Manual, sec. 
V.C.
    \24\ See, e.g., Paralyzed Veterans of Am. v. Civil Aeronautics 
Bd., 752 F.2d 694, 708-09 (DC Cir. 1985); Johnny's Icehouse, Inc. v. 
Amateur Hockey Ass'n of Ill., 134 F. Supp. 2d 965, 971-72 (N.D. Ill. 
2001); Chaplin v. Consol. Edison Co., 628 F. Supp. 143, 145-46 
(S.D.N.Y. 1986); Bachman v. Am. Soc'y of Clinical Pathologists, 577 
F. Supp. 1257, 1264-65 (D.N.J. 1983).
---------------------------------------------------------------------------

    Comment: A commenter asked the Department to confirm that the 
definition of Federal financial assistance in this rule does not limit 
the scope of its proposed revision of regulations implementing section 
1557. If finalized as proposed, the section 1557 regulations would, 
consistent with the ACA, define ``Federal financial assistance'' to 
include grants, loans, and other types of assistance from HHS, as well 
as credits, subsidies and contracts of insurance in accordance with the 
text of section 1557.\25\
---------------------------------------------------------------------------

    \25\ See ``Nondiscrimination in Health Programs and 
Activities,'' 87 FR 47824, 47912 (Aug. 4, 2022).
---------------------------------------------------------------------------

    Response: Section 1557 is a separate statute from section 504 and 
its regulation contains a more expansive definition of Federal 
financial assistance than section 504 does.\26\ The definition of 
Federal financial assistance in this regulation does not constrain or 
otherwise limit the definition of Federal financial assistance under 
the Department's section 1557 regulations.
---------------------------------------------------------------------------

    \26\ Id. The existing 1557 regulation at 45 CFR 92.3(a)(1) 
(2020) also includes including credits, subsidies, or contracts of 
insurance provided by the Department.
---------------------------------------------------------------------------

    Comment: One commenter asked that the Department provide guidance 
on whether section 504 requirements apply to State Medicaid programs 
and managed care plans with which State agencies contract to administer 
Medicaid services to beneficiaries.
    Response: When HHS provides Federal financial assistance, including 
grants, to an entity, section 504 obligations attach with the receipt 
of the funds. In essence this relationship is in the form of a contract 
between the Federal Government and the recipient, by which the 
recipient states that it will not discriminate on the basis of 
disability in its operation of its programs or activities as a 
condition of the receipt of Federal funds.\27\ When the recipient 
contracts out responsibilities under the grant program or disburses the 
funds to other subgrantees that will also operate the program or 
activity, these statutory and contractual obligations pass down to the 
subgrantee or subcontractor.
---------------------------------------------------------------------------

    \27\ See 45 CFR 84.5 (``An applicant for Federal financial 
assistance to which this part applies shall submit an assurance, . . 
. that the program or activity will be operated in compliance with 
this part.'')

---------------------------------------------------------------------------

[[Page 40074]]

    In the case of the Department's Medicaid program, State Medicaid 
programs receive Federal funds and are therefore covered by section 
504.\28\ When the State Medicaid agency provides Medicaid funds to 
managed care plans to manage and operate specific Medicaid programs or 
activities, those managed care plans are also subject to section 504.
---------------------------------------------------------------------------

    \28\ See, e.g., U.S. v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 
1042 (5th Cir. 1984) (holding that ``Medicare and Medicaid are 
federal financial assistance for the purpose of Section 504''), 
cert. denied, 469 U.S. 1189 (1985).
---------------------------------------------------------------------------

    We have retained the proposed definition of ``Federal financial 
assistance.''
Foster Care
    Comment: Commenters asked us to include the phrase ``either 
directly or through contracts, agreements, or other arrangements with 
another agency or entity'' to describe the covered recipients of 
Federal financial assistance who provide foster care.
    Response: The language ``recipient of Federal financial assistance 
made directly or through contracts, agreements, or other arrangements'' 
is included in the child welfare section, Sec.  84.60(b), to describe 
covered entities.
    We decline to revise the definition of ``foster care.''
Individual With a Disability
    The proposed rule said that an individual with a disability means a 
person who has a disability but the term does not include an individual 
who is currently engaging in the illegal use of drugs, when a recipient 
acts ``on the basis of such use.''
Kiosk
    Discussion of this term can be found at subpart I.
Most Integrated Setting
    Discussion of this term can be found in Integration (Sec.  84.76).
Mobile Applications
    The Department did not receive comments on the definition of this 
term and is finalizing it without modifications.
Other Power-Driven Mobility Device
    Discussion of this term can be found in Mobility Devices (Sec.  
84.74).
Parents
    Discussion of this term can be found in Child Welfare (Sec.  
84.60).
Qualified Individual With a Disability
    Comment: One group of commenters representing persons with 
disabilities asked that the Department clarify that paragraph (3) in 
the definition of qualified individual with a disability refers to both 
public and private recipients.
    Response: That paragraph refers to childcare, preschool, 
elementary, secondary, or adult educational services and it encompasses 
both public and private entities that are recipients from HHS. The 
Department has revised paragraph (4) addressing postsecondary and 
career and technical education services to be consistent with the 
Department of Education regulations.
    We decline to revise the definition of ``qualified individual with 
a disability.''
Qualified Interpreter
    Comment: Some commenters requested that the Department change the 
definition of ``qualified interpreter'' to more closely align with the 
definition of qualified interpreter for individuals with limited 
English proficiency proposed by the Department in its recent NPRM for 
section 1557.\29\
---------------------------------------------------------------------------

    \29\ 87 FR 47824 (Aug. 4, 2022).
---------------------------------------------------------------------------

    Response: The Department believes that the proposed definition of 
qualified interpreter in this rulemaking accurately describes the 
requirements of a qualified interpreter for people with disabilities. 
Additionally, this definition is added for consistency with title II of 
the ADA. For the many reasons explained in the NPRM, the Department 
believes there is and should be consistency between the relevant 
provisions of section 504 and title II of the ADA. Many recipients 
under section 504 are also covered entities under the ADA and the 
Department does not wish to cause confusion or adopt different 
standards in those circumstances. Both recipients and individuals with 
disabilities benefit from establishing consistent regulations.
    We acknowledge that many recipients under section 504 are also 
covered entities under the Department's recent final rule under section 
1557. Recipients must meet their obligations under both laws. If an 
interpreter does not adhere to generally accepted interpreter ethics 
principles, including client confidentiality, as they are required to 
do under section 1557, such an interpreter may not be a qualified 
interpreter for purposes of section 504. A failure to adhere to ethics 
principles may compromise the interpreter's impartiality and could also 
prevent a recipient from providing communication that is as effective 
as the recipient's communication with others (who, in the medical 
context, are generally entitled to confidential communication). 
Similarly, an interpreter that does not demonstrate proficiency in 
communicating in, and understanding, (1) both English and any non-
English languages necessary to communicate effectively with an 
individual with a disability, such as American Sign Language, or (2) 
another communication modality (such as cued-language transliterators 
or oral transliteration), is likely not a qualified interpreter under 
section 504 because they are unlikely to be able to interpret 
effectively and accurately, both receptively and expressively. In order 
to interpret effectively, as they are required to do under section 504, 
qualified interpreters should be able to interpret without changes, 
omissions, or additions and while preserving the tone, sentiment, and 
emotional level of the original statement. We decline to revise the 
definition of ``qualified interpreter.''
Section 508 Standards
    Discussion of this term can be found in subpart I.
Service Animal
    Discussion of this term can be found at Service animals (Sec.  
84.73).
State
    The definition of ``State'' has been revised to more closely track 
the definitions section of the Rehabilitation Act, 29 U.S.C. 705(34). 
This is a not a substantive change.
WCAG 2.1
    Discussion of this term can be found at subpart I.
User Agent
    The Department has added a definition for ``user agent.'' The 
definition exactly matches the definition of user agent in WCAG 
2.1.\30\ WCAG 2.1 includes an accompanying illustration, which 
clarifies that the definition of user agent means ``[w]eb browsers, 
media players, plug-ins, and other programs--including assistive 
technologies--that help in retrieving, rendering, and interacting [w]eb 
content.'' \31\
---------------------------------------------------------------------------

    \30\ See W3C, Web Content Accessibility Guidelines 2.1 (June 5, 
2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. Copyright (copyright) 2023 W3C[supreg]. As 
discussed below, WCAG 2.1 was updated in 2023, but this rule 
requires conformance to the 2018 version. The Permalink used for 
WCAG 2.1 throughout this rule shows the 2018 version of WCAG 2.1 as 
it appeared on W3C's website at the time the NPRM was published.
    \31\ Id.
---------------------------------------------------------------------------

    The Department added this definition to the final rule to ensure 
clarity of the term ``user agent'' now that the term appears in the 
definition of ``web

[[Page 40075]]

content.'' As discussed further at subpart I, the Department has more 
closely aligned the definition of ``web content'' in the final rule 
with the definition in WCAG 2.1. Because this change introduced the 
term ``user agent'' into the Department's section 504 regulation for 
recipients of Federal financial assistance, and the Department does not 
believe this is a commonly understood term, the Department has added 
the definition of ``user agent'' provided in WCAG 2.1 to the final 
rule.
    Additional discussion of this term can be found at subpart I.
Web Content
    Discussion of this term can be found at subpart I. The Department 
is editing this definition to more closely align with the definition 
included in WCAG 2.1.
Wheelchair
    Discussion of this term can be found in Mobility Devices (Sec.  
84.74).
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing this section with six changes. First, we 
are revising the definition of ``archived web content''; second, we are 
revising the definition of ``conventional electronic documents''; 
third, we are revising the term ``most integrated setting''; fourth we 
are adding a definition of ``Section 508 Standards''; fifth, we are 
adding a definition of ``user agent''; and sixth, we are revising the 
definition of ``web content.''

Subpart B--Employment Practices

    This subpart addresses the section 504 requirements in the area of 
employment.
Discrimination Prohibited (Sec.  84.16)
    Proposed Sec.  84.16(a) prohibited discrimination on the basis of 
disability in employment under any program or activity receiving 
Federal financial assistance from the Department.
    Proposed Sec.  84.16(b) stated that the standards used to determine 
whether there has been discrimination in this context shall be the 
standards applied under title I of the ADA as they relate to 
employment, and, as such sections relate to employment, the provisions 
of sections 501 through 504 and 511 of the ADA as implemented in the 
EEOC's regulation at 29 CFR part 1630.
    The comments and our responses regarding subpart B are set forth 
below.
    Comment: Many organizations representing individuals with 
disabilities supported clarifying employment obligations and aligning 
the employment section of the rule with title I of the ADA. They noted 
that individuals with disabilities are more likely than individuals 
without disabilities to work in low paying jobs. Several commenters 
said that workforces should include individuals with disabilities in 
health care facilities, schools, and social work agencies to help 
parents and caregivers navigate the systems. They stated that a robust 
and disability aware workforce is needed to realize an equitable and 
nondiscriminatory health care system. Several individuals described 
their personal experiences of discrimination in the workplace.
    Response: The Department appreciates the commenters' feedback on 
the prohibitions against discrimination in employment and of the 
requirement that the employment standards be aligned with title I of 
the ADA. We agree that it is important for workforces to include 
individuals with disabilities.
    The Department notes that individuals who have experienced 
discrimination in the workplace may file complaints with OCR, though 
certain cases of employment discrimination may not be within OCR's 
statutory jurisdiction and may result in a case referral to the 
appropriate agency. As such, any person who believes they or another 
party has been discriminated against on the basis of race, color, 
national origin, sex, age, or disability, can visit the OCR complaint 
portal to file a complaint online at ocrportal.hhs.gov/ocr/smartscreen/main.jsf. We also accept complaints by email at [email protected] 
and by mail at Centralized Case Management Operations, U.S. Department 
of Health and Human Services, 200 Independence Avenue SW, Room 509F, 
HHS Building, Washington, DC 20201.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.16 as proposed with no 
modifications.

Subpart C--Program Accessibility

    Subpart C addresses program accessibility. It provides standards 
for new construction and alterations and applies the concept of program 
access for programs or activities carried out in new as well as 
previously existing facilities, even when those facilities are not 
directly controlled by the recipient.
Discrimination Prohibited (Sec.  84.21)
    Section 84.21 proposed to require that, except as provided in Sec.  
84.22, no qualified individual with a disability shall, because a 
recipient's facilities are inaccessible to or unusable by individuals 
with disabilities, be excluded from participation in, or be denied the 
benefits of the programs or activities of a recipient, or be subjected 
to discrimination by any recipient.
Existing Facilities (Sec.  84.22)
    Section 84.22 currently provides that a recipient shall operate its 
program or activity so that when viewed in its entirety, it is readily 
accessible to individuals with disabilities, but does not require a 
recipient to make each of its existing facilities accessible to and 
usable by individuals with disabilities. Access to a program may be 
achieved by a number of means, including reassignment of services to 
already accessible facilities, redesign of equipment, delivery of 
services at alternate accessible sites, and structural changes.
    We proposed in Sec.  84.22(a)(2) to include language from the ADA 
title II regulation and from the section 504 regulations for federally 
conducted programs. It provides that, in meeting the program 
accessibility requirement, a recipient is not required to take any 
action that would result in a fundamental alteration in the program or 
activity or in undue financial and administrative burdens. The 
provision further states that the decision that compliance would result 
in such alterations or burdens must be made by the head of the 
recipient or their designee and must be accompanied by a written 
statement of the reasons for reaching that conclusion. The provision 
also states that if an action would result in such an alteration or 
such burdens, the recipient shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that individuals with disabilities receive the benefits or 
services provided by the recipient. We proposed to retain Sec.  
84.22(c). It provides that if a recipient with fewer than fifteen 
employees that provides health, welfare, or other social services 
finds, after consulting with a persons with a disability who is seeking 
services, that there is no method of providing physical access to its 
facilities other than making a significant alteration to its existing 
facilities, the recipient may, as an alternative, refer the person with 
a disability to other providers of the services that the person seeks 
that are accessible.
New Construction and Alterations (Sec.  84.23)
    Section 84.23(a) currently requires each facility (or part of a 
facility)

[[Page 40076]]

constructed by, on behalf of, or for the use of a recipient, when such 
construction was begun after June 3, 1977, to be designed and 
constructed in such a manner that the facility (or part of a facility) 
is readily accessible to and usable by individuals with disabilities.
    Section 84.23(b) similarly currently requires that alterations to a 
recipient's facility after June 3, 1977, that affect or could affect 
the usability of the facility or part of the facility, shall, to the 
maximum extent feasible, be altered in such a manner that the altered 
portion is readily accessible and usable by individuals with 
disabilities.
    In the NPRM, Sec.  84.23(c) proposed language that lays out 
accessibility standards and compliance dates for recipients that are 
public entities. Section 84.23(d) lays out accessibility standards and 
compliance dates for recipients that are private entities. The 
Department's proposal seeks to use the Standards currently used in the 
ADA: the 2010 ADA Standards for Accessible Design (2010 Standards).
    Section 84.23(c) and (d) proposed to provide a series of compliance 
dates for all physical construction or alterations. Under this 
proposal:
    If construction commences on or after one year from the publication 
date of the final rule, the construction must comply with the 2010 
Standards.
    If construction commences on or after the effective date of the 
rule, but before one year from the publication date of the final rule, 
the construction must comply either with the Uniform Federal 
Accessibility Standards (UFAS) or the 2010 Standards.
    If construction commences on or after January 18, 1991, but before 
the effective date of the final rule, the construction will be deemed 
to be in compliance if it meets UFAS.
    If construction commences after June 3, 1977, but before January 
18, 1991, then the construction will be deemed to be in compliance if 
it meets ANSI, the American National Standard Institute's 
Specifications for Making Buildings and Facilities Accessible to, and 
Usable by, the Physically Handicapped (ANSI A117.1-1961 (R1971)).
    In Sec.  84.23(e), we proposed to provide that newly constructed or 
altered facilities that do not comply with the section 504 
accessibility standards that were in place at the time of construction 
shall be made accessible in accordance with the 2010 Standards. In 
addition, if the construction occurred on or after January 18, 1991, 
and before the date one year from publication date of this rule in 
final form the recipient has the option of using UFAS or the 2010 
Standards as the accessibility standard.
    In Sec.  84.22(g) of the NPRM, we proposed to follow the lead 
established by DOJ in its ADA regulations and establish a safe harbor 
for specific building elements. It clarifies that, if a recipient in 
the past had constructed or altered an element in accordance with the 
specifications of the accessibility code in effect at the time of 
construction by HHS's section 504 rule (e.g., the specifications of 
UFAS or ANSI), such recipient is not required to retrofit that element 
to reflect incremental changes in this rule's accessibility standards. 
In these circumstances, the recipient would be entitled to a safe 
harbor for the already compliant elements until those elements are 
altered.
    The comments and our responses regarding subpart C are set forth 
below.
    Comments: Commenters were supportive of the Department's proposal 
to retain the basic construct of its existing section 504 rule, 
including strict compliance standards for new construction and 
alterations and a program accessibility approach for programs carried 
out in existing facilities. Many commenters, particularly individuals 
with disabilities, expressed dismay that physical barriers continue to 
exist so many years after the enactment of section 504, pointed out how 
these barriers limit or deny access to health care, and strongly urged 
the Department to take effective and vigorous action to enforce the 
regulations that are being developed. Other commenters raised concerns 
about specific issues in the Department's individual regulatory 
sections and suggested alternative text and interpretations.
    Response: The Department thanks those individuals who took the time 
to share their experiences and concerns with the Department. These 
comments provided support for the Department's decision to address 
problems that persons with disabilities face in getting access to 
health care and human services, particularly with respect to medical 
treatment, accessible medical equipment, participation in child welfare 
programs, and access to websites and kiosks. The Department remains 
committed to maintaining its active enforcement program and notes that 
persons who believe that they have been discriminated against in the 
receipt of health care and social services may choose to file 
complaints with the Department and the Department will review and 
investigate complaints and work to achieve compliance with section 504 
in those instances where the investigation reveals that discrimination 
has occurred. The Department will respond to the additional points 
raised by commenters in the individual sections that follow.
Scope of Accessibility
    Comments: Several commenters expressed concern that the 
Department's approach to program accessibility did not address a range 
of other important access concerns. One commenter noted that access was 
more than just building and that persons with environmental illness and 
other invisible disabilities are denied access because of barriers 
created by gases from carpeting and the use of air fresheners in 
buildings. Another commenter included in its list of barriers that the 
Department should be addressing the use of inaccessible shuttle 
services offered by or for hospitals and operational concerns, such as 
storage of items on wheelchair ramps, blocked doorways, or the use of 
narrow or constricting rope lines.
    Response: The Department notes that subpart C on Program 
Accessibility is just one section 504 requirement and other provisions 
in the rule address other aspects of accessibility. For example, the 
list of general prohibitions against discrimination found at Sec. Sec.  
84.68, particularly Sec.  84.68(b)(7) on reasonable modifications, and 
84.70 on maintenance of accessible features, address the accessibility 
concerns raised by these commenters.
Program Accessibility
    Comments: Disability rights organizations expressed concern with 
the Department's continued use of the program accessibility concept for 
existing facilities. One organization recommended deletion of the 
approach because of changes in the health care industry, i.e., the 
propensity for horizontal and vertical consolidation where hospitals 
merge, acquire smaller provider practices and specialty clinics, and 
are in turn acquired by larger regional and nation health care 
entities. The comment asserts that allowing accessible features in only 
some of these facilities under the guise of overall program access will 
deny persons with disabilities patient choice, care continuity, and 
stakeholder consultation. Other commenters, including organizations 
representing doctors and health care providers, expressed support for 
the use of program accessibility and the flexibility that it provides 
to small providers and approved of the Department's inclusion of the 
use of the defenses of fundamental alteration and undue financial and 
administrative burdens.
    Others recommended that the Department maintain a high standard for 
these defenses, allowing persons

[[Page 40077]]

with disabilities the opportunity to participate in and benefit from 
health care services and programs. They also suggested that the rule 
should include a prompt time frame for the decision by a recipient of 
the use of these defenses so that an individual is not delayed access 
because they must wait for a written decision. Another disability 
rights organization expressed concern that the expanded use of 
telemedicine, while necessary and important, should not replace regular 
in-person visits in lieu of making the recipient's facilities 
accessible.
    Response: The program accessibility requirement has been a 
significant feature of the Department's section 504 regulation since 
1977 and is, in fact, a part of other Federal section 504 regulations, 
both for federally assisted and federally conducted rules.\32\ The 
Department notes that the program accessibility requirement is derived 
from the language of section 504 itself, which prohibits discrimination 
under any ``program or activity.'' The Department's regulation here is 
also consistent with guidance from DOJ under E.O. 12250. DOJ's section 
504 coordination regulation, which sets forth guidelines for Federal 
agencies to follow in issuing section 504 rules, includes language on 
program accessibility.\33\ That provision serves as a foundation for 
the Department's section on program accessibility. Accordingly, the 
Department will continue with the concept of program accessibility as 
the basis for its treatment of how section 504 applies to existing 
facilities in its final rule. The Department notes, however, that it 
will continue to interpret the program accessibility concept broadly, 
ensuring that persons with disabilities have access to appropriate 
health care offered by recipients.
---------------------------------------------------------------------------

    \32\ See, e.g., 34 CFR 104.21 and 104.22 (Education); 24 CFR 
8.20, 8.21, and 8.2 (HUD); 29 CFR 32.26 and 32.27 (Labor).
    \33\ Pursuant to E.O. 12250, DOJ coordinates implementation of 
section 504. 28 CFR part 41. The program accessibility requirements 
can be found at 28 CFR 41.56 and 41.57.
---------------------------------------------------------------------------

    Section 84.22(a)(2) of the Department's proposed rule states that, 
in meeting the program accessibility requirement, a recipient is not 
required to take any action that would result in a fundamental 
alteration in the nature of its program or activity or in undue 
financial and administrative burdens. This paragraph does not establish 
an absolute defense; it does not relieve a recipient of all obligations 
to individuals with disabilities. Although a recipient is not required 
to take actions that would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and 
administrative burdens, it nevertheless must take any other steps 
necessary to ensure that individuals with disabilities receive the 
benefits or services it provides.
    It is the Department's view that this paragraph already sets a high 
bar and that compliance would in most cases not result in undue 
financial and administrative burdens for a recipient. In determining 
whether financial and administrative burdens are undue, all recipient 
resources available for use in the funding and operation of the program 
or activity should be considered. The burden of proving that compliance 
would fundamentally alter the nature of a program or activity or would 
result in undue financial and administrative burdens rests with the 
recipient. The decision that compliance would result in such alteration 
or burdens must be made by the head of the recipient or their designee 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. The Department recognizes the difficulty of 
identifying the official responsible for this determination, given the 
variety of organizational forms that may be taken by recipients and 
their components. The intention of this paragraph is to require this 
determination to be made by a high level official, no lower than a 
Department head, having budgetary authority and responsibility for 
making spending decisions. The Department recognizes that its 
regulatory language does not contain any language about the timing of 
the decision that an action is a fundamental alteration or would cause 
an undue burden. Given the wide range of sizes and types of the 
Department's recipients, the Department believes that setting any 
specific timetable would be inappropriate. Of course, any person who 
believes that they or any specific class of persons has been injured by 
the recipient's decision or failure to make a decision may file a 
complaint under the compliance procedures established by Sec.  84.98 of 
this part, which incorporates procedural provisions applicable to the 
Department's title VI of the Civil Rights Act of 1964 regulations.
    As to the comment concerning telehealth, the Department notes its 
discussion on this subject below at subpart H, Communications. The use 
of telehealth is an important advance in the provision of health care, 
but it is not the appropriate response for all situations and an in-
office visit remains an important tool in the recipient's arsenal of 
health care solutions. Thus, telehealth in and of itself is not a 
solution to the existence of a health care provider's inaccessible 
facilities.
Small Providers (Sec.  84.22(c))
    Comments: The Department received numerous comments on this 
paragraph. Disability rights organizations expressed concern about the 
Department's continued inclusion of a provision allowing a recipient 
with fewer than fifteen employees to refer a patient to alternative 
providers when the recipient finds, after consultation with a person 
with a disability seeking its services, that there is no method of 
complying with the program accessibility requirement other than making 
a significant alteration in its existing facilities. Some commenters 
suggested that this provision be deleted. Other commenters stated that 
if a recipient must use an alternative to making its services 
accessible, the recipient must take all steps necessary to provide the 
services in the most integrated setting, and give due consideration to 
the individual's preference after an individualized assessment of the 
person's needs, and provide accessible transportation at no cost to the 
patient. Organizations representing health care providers expressed 
support for the alternative referral provision, noting that it helps 
avoid circumstances in which complying with the rule's requirements 
would present an insurmountable burden for small practices and 
negatively impact a practice's resources for delivering care to all 
patients.
    Response: The Department is retaining this provision in the final 
rule. It is necessary to keep this provision in the final rule because 
it implements section 504(c) of the Rehabilitation Act. Section 504(c), 
which Congress added to the statute in 1988, states that ``[s]mall 
providers'' ``are not required by [section 504(a)] to make significant 
structural alterations to their existing facilities for the purpose of 
assuring program accessibility'' where ``alternative means of providing 
the services are available.'' \34\ The Department believes that this 
provision provides flexibility for the many very small providers that 
the Department funds. One comment suggested reducing the scope of the 
alternative referral to a smaller number of employees, perhaps five or 
fewer employees. The Department considered this proposal, but believes 
that changing this number here, when the fifteen or fewer number has 
been consistently used by the Department for its section 504 regulation 
since its inception, would likely cause confusion. In

[[Page 40078]]

addition, the Department notes that, in fact, a significant percentage 
of the firms providing health care services (which includes doctors, 
dentists, and other health care providers) have fewer than five 
employees (52%) and an additional 20.4% have between five and nine 
employees.\35\ The Department also notes that the consequences feared 
by organizations representing persons with disabilities, i.e., that 
doctors' offices in large numbers would use this alternative referral 
provision to avoid making their offices accessible, has not been 
historically proven true, even though this provision has been in the 
Department's regulation since 1977.
---------------------------------------------------------------------------

    \34\ 29 U.S.C. 794(c).
    \35\ U.S. Census Bureau, Stat. of U.S. Bus. (2019), https://www.census.gov/programssurveys/susb.html.
---------------------------------------------------------------------------

Accessibility Standard
    Comments: Comments from organizations representing persons with 
disabilities and a leader in the field of accessibility standards 
strongly recommended not using the ADA Accessibility Standards as the 
accessibility design standards in the final rule. They noted that the 
2010 ADA Standards for Accessible Design is based on the U.S. Access 
Board's (Access Board) 2004 Accessibility Guidelines and is already 
out-of-date. They propose using the most current standard that exists 
because the standard in the Department's rule will likely apply into 
future decades. These groups recommend the use of the International 
Building Code (IBC) 2021 Chapter 11 and the International Code Council 
(ICC)/ANSI A117.1 in its entirety. They expressed the view that this 
approach will provide greater overall accessibility for people with 
disabilities and a higher level of buildings and facilities 
accessibility than the 2010 Standards. They also state that ICC/ANSI's 
A117.1 standards are the most current standards, have been developed by 
the private sector, and are already in use by many State and local 
jurisdictions. They state that these standards provide greater overall 
accessibility to people with disabilities and that the Department's 
proposed standards are based on knowledge and anthropometrics from 19 
years ago (when the wheelchairs in use were smaller than those often 
used today). In addition, many individual commenters related stories of 
difficulties in accessing accessible health care and suggested that 
whatever standards that the Department is using should address a wide 
range of concerns (e.g., having an accessible front entrance to a 
health care facility, or locating accessible room in hospitals close to 
nursing stations and making their use convenient for the nursing 
staff).
    Response: While there are definite advantages to updating the 
accessibility design standards in the final section 504 rule to the 
most current standards, the Department believes that having different 
standards for building accessibility for the ADA and section 504 would 
create confusion and uncertainty for our recipients, most of whom would 
be then subjected to two different standards for making their 
facilities accessible. The Department is also aware that not all 
jurisdictions in the United States have adopted the ICC/ANSI 117.1 
requirements and adopting them in this rule would have significant cost 
implications for those recipients in jurisdictions that have not yet 
adopted the new ICC/ANSI standards. Further, the Department is aware 
that the IBC is in the process of an even further update of these 
standards that will address an important building block issue, the use 
of a wider turning radius for larger wheelchairs.
    Most importantly, however, the Federal Government already has in 
place a process for updating its accessibility standards and the 
Department believes that it should follow the existing procedure in 
place. That process includes review of accessibility guidelines by the 
Access Board, the agency in the Federal executive branch with the 
necessary architectural expertise to determine the appropriate 
accessibility guidelines, after conferring with all necessary 
stakeholders through its own notice-and-comment process. Once the 
Access Board updates its accessibility guidelines, Federal agencies 
that enforce the ADA and section 504 (and other Federal laws requiring 
accessible facilities) can move forward to adopt new, updated 
accessibility standards, for both their federally assisted and 
federally conducted programs. This process ensures that the Federal 
Government will speak with one voice on the issue of accessible 
building design.
    The Department recognizes that its standards development process 
can be a lengthy one and that the Federal process is slower and less 
dynamic than the process followed by the private sector. The private 
code process allows State and local jurisdictions to determine when, 
whether, and in what detail they will adopt the IBC's most current 
standards. Under the ADA and section 504, the Federal Government 
requires the development of its standards through its notice-and-
comment process, a process that allows a full consideration of the 
issue of costs and the needs for the latest approaches in accessible 
design.
    Accordingly, the Department will retain its use of the 2010 ADA 
Standards for Accessible Design in its final section 504 rule. The 
Department, as a member of the Access Board, will bring these concerns 
to the full Board and will work toward an update of the Board's 
Accessibility Guidelines.

Subpart D--Childcare, Preschool, Elementary and Secondary, and Adult 
Education

    Subpart D addresses requirements for childcare, preschool, 
elementary and secondary, and adult education. It retains with slight 
revisions the application section and the section dealing specifically 
with those types of recipients. Other sections dealing with elementary 
and secondary education are reserved.
Application of This Subpart (Sec.  84.31)
    Section 84.31 of the NPRM proposed to require the subpart to apply 
to childcare, preschool, elementary and secondary, and adult education 
programs or activities that receive direct or indirect Federal 
financial assistance and to recipients that operate, or that receive 
Federal financial assistance for the operation of, such programs or 
activities. The Department notes that childcare vouchers or 
certificates are considered indirect Federal financial assistance and, 
for the purposes of applying the Child Care and Development Block Grant 
(CCDBG) regulations, are assistance to the parent. Section 504 applies 
to both direct and indirect Federal financial assistance, including 
vouchers. This subpart reaffirms that section 504 applies to child care 
providers, but it does not change the conditions that apply to 
recipients of indirect Federal financial assistance under any other 
statute, such as the statute establishing the CCDBG program. For 
example, faith-based child care providers that receive vouchers or 
certificates through the Child Care and Development Fund (CCDF) are not 
barred by that statute from providing religious programming and 
materials, though section 504 applies to them. OCR will work with the 
Administration for Children and Families to provide additional guidance 
and implementation assistance to child care providers receiving Federal 
financial assistance.

[[Page 40079]]

Childcare, Preschool, Elementary and Secondary, and Adult Education 
(Sec.  84.38)
    Section 84.38 proposed to prohibit these types of recipients, on 
the basis of disability, from excluding qualified individuals with 
disabilities and requires recipients to consider the needs of such 
persons in determining the aids, benefits, or services to be provided.
    The comments and our responses regarding subpart D are set forth 
below.
    Comment: Several commenters expressed support for the inclusion of 
the term ``childcare'' in the new regulation, which uses currently 
accepted terms and reduces unintended stigma related to references to 
parents and children with disabilities by removing outdated phrases 
such as ``handicapped.''
    Response: The Department appreciates commenters' support and 
believes using current terms plays an important role in inclusive and 
accessible childcare programs.
    Comment: Several commenters requested clarification that the age 
range covered under Sec.  84.38 of subpart D begins at birth and 
recommended this be made explicit in the final regulation.
    Response: The Department appreciates this comment. A ``qualified 
individual,'' as defined under section 504, can be of any age, 
including from birth. Therefore, the Department declines to add further 
text in the regulation.
    Comment: Many commenters emphasized that childcare providers are 
currently unaware of their obligations under section 504 and the ADA. 
Commenters requested additional guidance from OCR and the 
Administration for Children and Families (ACF) in how these providers 
can meet their obligations, including assurance of availability of 
supports, training opportunities, and resources including in plain 
language and multiple languages. Additionally, some commenters asked 
for guidance on how this rule should be read in concert with the 
Department of Education's (ED's) section 504 rule in educational 
settings. Lastly, commenters asked for clarification on how 
disciplinary policies and practices will be applied in a 
nondiscriminatory manner.
    Response: The Department collaborates closely with our Federal 
partners on section 504, including DOJ and ED. In collaboration with 
ED, HHS recently updated a joint Policy Statement on Inclusion of 
Children with Disabilities in Early Childhood Programs, which discusses 
the legal foundation for inclusion and opportunities to improve 
inclusion in early childhood programs.\36\ As explained in the NPRM, 
the Department believes there is and should be consistency between the 
relevant provisions of section 504 and title II of the ADA and its 
regulation \37\ as well as ED's section 504 regulations.\38\ We 
encourage recipients to consult DOJ's guidance titled ``Commonly Asked 
Questions About Child Care Centers and the Americans with Disabilities 
Act,'' first issued in 1997 and updated in 2020, that describes 
providers' obligations under title III.\39\ In addition to consistency 
in the relevant provisions, title II of the ADA and section 504 
generally are interpreted consistently, as detailed in the NPRM.
---------------------------------------------------------------------------

    \36\ U.S. Dep't of Health & Human Servs., U.S. Dep't of Ed., 
Policy Statement on Inclusion of Children with Disabilities in Early 
Childhood Programs (updated November 2023). The guidance notes that 
`` `early childhood programs' refer to those that provide early care 
and education to children birth through age five, including but not 
limited to childcare centers, family childcare, Early Head Start, 
Head Start, home visiting programs, and public and private pre-
kindergarten in-school and community-based settings.'' Id. at 1.
    \37\ See 28 CFR part 35.
    \38\ See 45 CFR 84.4(b)(2) and 34 CFR 104.4(b)(2).
    \39\ U.S. Dep't of Justice, Commonly Asked Questions About 
Childcare Centers and the Americans with Disabilities Act (2020), 
https://www.ada.gov/childqanda.htm.
_____________________________________-

    Recipients should also be aware of the wealth of materials 
available free of charge from the HHS-funded ADA National Network at 
www.adata.org, including specific information about the provision of 
childcare services.\40\ DOJ also provides guidance and resources at 
www.ada.gov.
---------------------------------------------------------------------------

    \40\ The ADA National Network receives funding from HHS to 
provide information, guidance and training on how to implement the 
Americans with Disabilities Act (ADA).
---------------------------------------------------------------------------

    HHS in coordination with ED, will work with childcare providers to 
provide guidance and technical assistance on implementation. Both 
Departments understand that providers will need information and 
technical assistance to understand their obligations to individuals 
with disabilities.
    Comment: Several commenters expressed concern over discrimination 
in childcare settings and asked that OCR provide additional guidance 
regarding the criteria used to determine whether a modification is a 
``fundamental alteration'' to a program or activity or an ``undue 
financial and administrative burden'' for the purpose of 
responsibilities under section 504. For example, several commenters 
stated that modification requests for children with diabetes in 
childcare settings frequently result in denial or exclusion. Commenters 
asked for a non-exhaustive list of diabetes-related examples of what 
reasonable modifications in childcare settings may include.
    Response: We appreciate the commenters' request for additional 
guidance on reasonable modifications. As throughout this regulation, 
which modifications are reasonable and necessary to avoid 
discrimination depends on the specific circumstances. Examples of 
common reasonable modifications for a child with diabetes may include 
providing or assisting with blood glucose checks, insulin 
administration, counting carbohydrates, and taking action in response 
to low and high blood glucose levels. DOJ's guidance titled ``Commonly 
Asked Questions About Child Care Centers and the Americans with 
Disabilities Act,'' provides relevant examples of reasonable 
modifications under the ADA which also apply under section 504, such as 
the use of service animals, assistance with diapering and toileting, 
and assistance with orthotic devices.\41\ These scenarios are 
illustrative examples of what reasonable modifications a covered entity 
may be required to make to ensure a child with a disability can 
participate in its programs. The Department will note the request for 
more examples of reasonable modifications in our continuing education 
and technical assistance efforts, including the issuance of possible 
further guidance.
---------------------------------------------------------------------------

    \41\ U.S. Dep't of Justice, Commonly Asked Questions About 
Childcare Centers and the Americans with Disabilities Act (2020), 
https://www.ada.gov/childqanda.htm; and see U.S. Dep't of Educ., 
Section 504 Protections for Students with Diabetes (2024), https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-diabetes-202402.pdf.
---------------------------------------------------------------------------

Summary of Regulatory Changes
    In light of the discussion above and considering the comments 
received, we are finalizing subpart D as proposed with no 
modifications.

Subpart E--Postsecondary Education

    Subpart E addresses postsecondary education. The Department funds 
many health-related schools that are covered by this part including 
schools of medicine, dentistry, and nursing. This subpart is identical 
to the postsecondary education provisions in the existing section 504 
regulations and in the ED regulations at 34 CFR 104.41 through 104.47. 
This subpart contains the following sections: Application, Admissions 
and Recruitment, Treatment of Students, Academic Adjustments, Housing, 
Financial and Employment Assistance to Students, and Nonacademic 
Services.

[[Page 40080]]

    The comments and our responses regarding subpart E are set forth 
below.
    Comment: Many commenters, including disability rights 
organizations, said that access to postsecondary education, adult 
education, and technical programs is critical for diversifying the 
medical field. Several stated that disability should be included in the 
curricula of all medical, nursing, and other health care professional 
schools. One commenter urged HHS to take any actions that it can to 
combat discrimination against individuals with disabilities at every 
level of education, especially with regard to students and 
practitioners in the fields of biomedical and behavioral research, 
medicine, and allied health and human services. They asserted that this 
is one of the most effective steps that can be taken to eradicate a 
leading cause of the most egregious and endemic forms of disability-
based discrimination in the U.S. today.
    Several other individuals similarly complained about the difficulty 
in obtaining modifications and urged that the burden be alleviated. One 
commenter said that recipients consistently require more than just a 
clinical diagnosis of disability. He noted that obtaining other 
documents is sometimes very difficult, especially for individuals who 
live in rural areas.
    Response: We thank commenters for their feedback. We agree with 
those who commented on the importance of providing individuals with 
disabilities equal access to educational programs and activities. We 
also agree that disability should be addressed in the curricula of 
postsecondary education programs. The Department currently has a 
Medical School Curriculum Initiative in partnership with the 
Association of American Medical Colleges.\42\
---------------------------------------------------------------------------

    \42\ For more information on this initiative, see U.S. Dep't of 
Health & Human Servs, Off. for Civil Rts, Medical School Curriculum 
Initiative in partnership with the Association of American Medical 
Colleges, https://www.hhs.gov/civil-rights/for-individuals/special-topics/health-disparities/medical-school-curriculum-initiative/.
---------------------------------------------------------------------------

    In addition, the Department has authority to enforce the provisions 
in subpart E which ensure that individuals receive equal access to 
postsecondary educational programs. We are committed to vigorous 
enforcement of those regulations. The Department notes that it proposes 
in this final rule to promulgate Sec.  84.68(b)(7), which will be 
particularly important for educational institutions as it will require 
the provision of reasonable modifications to policies, practices, and 
procedures when such modifications are necessary to avoid 
discrimination on the basis of disability, unless the recipient can 
demonstrate that making the modifications would fundamentally alter the 
nature of the program or activity. Postsecondary educational 
institutions must also comply with requirements specific to them 
contained in Sec.  84.44, Academic Adjustments. That section requires 
postsecondary educational institutions to make modifications to 
academic requirements if necessary to ensure nondiscrimination on the 
basis of disability. Modifications may include changes in the length of 
time permitted for completion of degree requirements, substitution of 
specific courses required for the completion of degree requirements, 
and adaptation of the manner in which specific courses are conducted.
    In response to the concern that recipients consistently require 
more than just a clinical diagnosis of disability, we note that Sec.  
84.4(d)(1)(vii) says that determining whether an impairment 
substantially limits a major life activity usually will require no 
scientific, medical, or statistical evidence. The preamble to that 
provision in the ADA title II regulations states that ``in most cases, 
presentation of such evidence shall not be necessary.'' \43\ 
Individuals who believe they have been unfairly denied reasonable 
modifications and/or academic adjustments can file complaints with OCR. 
The procedures for filing complaints are explained in Sec.  84.98.
---------------------------------------------------------------------------

    \43\ 35 CFR part 84, appendix C.
---------------------------------------------------------------------------

Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing subpart E as proposed with no 
modifications.

Subpart F--Health, Welfare, and Social Services

    This subpart sets forth the requirements that apply to health, 
welfare, and social service providers.
Substance and Alcohol Use Disorders (Sec.  84.53)
    Proposed Sec.  84.53 retained the section of the existing 
regulation with non-substantive terminology updates. The proposed 
version stated that a recipient to which this subpart applies that 
operates a general hospital or outpatient facility may not discriminate 
in admission or treatment against an individual with a substance or 
alcohol use disorder or individual with an alcohol use disorder who is 
suffering from a medical condition, because of the person's drug or 
alcohol use disorder.
    We invited comment as to whether the application of this section 
should extend beyond hospitals (including inpatient, long-term 
hospitals, and psychiatric hospitals) and outpatient facilities. If so, 
what types of treatment programs, providers, or other facilities should 
be included in this section?
    The comments and our responses regarding Sec.  84.53 are set forth 
below.
    Comment: Multiple commenters, including many disability rights 
organizations, responded to our request for comment. The commenters 
were uniformly supportive of the extension of coverage of this section 
beyond hospitals and outpatient facilities. A few listed specific 
health care facilities that should be included but most said that 
coverage should be extended to ``all health care facilities.''
    Several commenters questioned how the prohibitions in Sec.  84.53 
are different from the prohibitions against discrimination in the 
medical treatment section, Sec.  84.56. Another commenter was not clear 
as to why we said that this section must be read in conjunction with 
the illegal drugs provision at Sec.  84.69(b). A few commenters pointed 
out a technical error in the text of the proposed rule where insertion 
of the phrase ``or individual with an alcohol or substance use 
disorder'' makes the sentence confusing.
    Response: We thank commenters for their feedback and agree with 
their unanimous recommendation that we expand the application of the 
section to all health care providers.
    There are many settings where individuals seek and receive care 
other than hospitals and outpatient facilities. These include 
rehabilitation centers, assisted living and residential care 
facilities, day treatment programs, home health care services, 
telehealth platforms, and specialty clinics. The current opioid crisis 
and increase in substance use disorders underscores the necessity for 
nondiscriminatory access to a wide range of health care facilities.
    The Department believes that health care treatment should be as 
inclusive as possible and should not be limited to hospitals and 
outpatient facilities. Any health care facility receiving Federal 
financial assistance from the Department may not discriminate in 
admission or treatment against an individual with an alcohol or 
substance use disorder who has a medical condition because of that 
alcohol or substance use disorder. In response to a commenter's 
question about how this section is different than the nondiscrimination 
provisions in the

[[Page 40081]]

medical treatment section, we note that this section provides specific 
protections for individuals with substance and alcohol use disorders 
but that the general prohibitions against discrimination contained in 
the medical treatment section at Sec.  84.56 also apply to that 
situation.
    With regard to the relationship of this section to the provisions 
about illegal use of drugs contained in Sec.  84.69, we note that Sec.  
84.69(a) states that ``[e]xcept as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against individuals 
based on their current illegal use of drugs.'' The exception in 
paragraph (b) states that ``a recipient shall not exclude an individual 
on the basis of that individual's illegal use of drugs from the 
benefits of programs and activities providing health services. . . .'' 
(emphasis added). The situation described in Sec.  84.53 fits into that 
exception since it addresses individuals who are seeking health care 
services. Accordingly, recipients cannot deny health services on the 
basis of the current illegal use of drugs if the individual is 
otherwise entitled to such services.
    We note that Sec. Sec.  84.69 and 84.53 differ in two key ways. 
First, Sec.  84.53 protects people with both substance use and alcohol 
use disorders while Sec.  84.69 only addresses individuals engaging in 
illegal use of drugs. Second, Sec.  84.69(b) prohibits exclusion of 
individuals currently engaging in illegal use of drugs from health 
services and services provided under the Rehabilitation Act while Sec.  
84.53 does not address the illegal drugs issue. However, as noted 
above, both regulations prohibit the exclusion of individuals currently 
engaging in illegal use of drugs from health services although this is 
not specifically stated in Sec.  84.53.
    Please see the preamble discussion to Sec.  84.69, Illegal Use of 
Drugs, for an explanation of how the ADA sections and Rehabilitation 
Act sections on illegal drugs differ.
    We agree with the commenters' suggestion that the text be clarified 
by deleting the phrase ``or individual with alcohol use disorder.'' In 
addition, we are making two technical changes--replacing the word 
``drug'' with the word ``substance'' and replacing the phrase ``who is 
suffering from a medical condition'' to ``who has a medical 
condition.''
Summary of Regulatory Changes
    For the reasons set forth above and considering comments received, 
we are finalizing Sec.  84.53 as proposed with several modifications. 
We are replacing the phrase ``operates a general hospital or outpatient 
facility'' with the phrase ``operates a health care facility.'' In 
addition, we are deleting the phrase ``or individual with an alcohol 
use disorder'' the second time it is used, replacing the word ``drug'' 
with the word ``substance, and replacing the phrase ``suffering from a 
medical condition'' to ``has a medical condition.'' The section now 
says that ``[a] recipient . . . who operates a health care facility may 
not discriminate in admission or treatment against an individual with a 
substance or alcohol use disorder who has a medical condition, because 
of the person's substance or alcohol use disorder.''
Education of Institutionalized Persons (Sec.  84.54)
    Proposed Sec.  84.54 was retained from the existing section 504 
regulations with one revision. The existing regulation stated that 
recipients must ensure that qualified individuals with disabilities are 
provided an appropriate education as defined in Sec.  84.33(b). That 
section set forth the requirements for a free appropriate public 
education. However, the proposed rule did not contain a Sec.  84.33(b) 
as that section had been removed. Accordingly, we proposed to revise 
Sec.  84.54 so that it refers instead to the ED section 504 regulations 
at 34 CFR 104.33(b). The comments and our responses regarding Sec.  
84.54 are set forth below.
    Comment: Several disability rights organizations expressed concerns 
about the reference to 34 CFR 104.33(b), ED's section 504 regulation, 
since that Department has indicated their intent to amend their section 
504 regulations. Their comments do not explain their concern; they 
simply suggest that the rule not reference a regulation that will be 
amended. The commenters proposed alternative language setting forth 
requirements for an appropriate education. They also suggested that the 
preamble state that this section is to be interpreted consistent with 
the requirements of ED's section 504 regulations and the ADA title II 
regulations.
    Response: We appreciate the commenters' suggestions but decline to 
revise the text of the regulation. We note that recipients must comply 
with the current version of 34 CFR 104.33(b). If amendments to 34 CFR 
104.33(b) are finalized, in whole or in part, following the effective 
date of this regulation, then recipients must follow the amended 
version in force at that time. The cross-reference to the ED regulation 
does not change that requirement. We agree with recipients' assertion 
that recipients must comply with both the ED and the ADA title II 
regulations.
Summary of Regulatory Changes
    For the reasons set forth above, we are finalizing Sec.  84.54 as 
proposed without modifications.
Medical Treatment (Sec.  84.56)
    Proposed Sec.  84.56(a) proposed a general prohibition against 
discrimination to be read in conjunction with the general prohibitions 
contained in proposed Sec.  84.68.
    Proposed Sec.  84.56(b)(1) provided a non-exhaustive list of 
examples of conduct that would violate the section. It stated that a 
recipient may not deny or limit medical treatment to a qualified 
individual with a disability when the denial is based on (i) bias or 
stereotypes; (ii) judgments that an individual will be a burden on 
others due to their disability; or (iii) a belief that the life of a 
person with a disability has lesser value than the life of a person 
without a disability, or that life with a disability is not worth 
living.
    In Sec.  84.56(b)(2), we proposed to provide that where an 
individual with a disability seeks or consents to treatment for a 
separately diagnosable symptom or medical condition, a recipient may 
not deny or limit clinically appropriate treatment if it would be 
offered to a similarly situated individual without an underlying 
disability.
    The Department invited comment on the best way of articulating 
distinctions between underlying disabilities and separately diagnosable 
symptoms or medical conditions.
    We proposed in Sec.  84.56(b)(3) to provide that a recipient may 
not provide medical treatment to an individual with a disability where 
it would not provide the same treatment to an individual without a 
disability unless the disability impacts the effectiveness, or ease of 
administration of the treatment itself, or has a medical effect on the 
condition to which the treatment is directed.
    The Department invited comment on other examples of the 
discriminatory provision of medical treatment. Proposed Sec.  84.56(c) 
articulated a rule of construction setting forth a series of principles 
guiding how proposed Sec.  84.56 should be interpreted. We proposed in 
Sec.  84.56(c)(1)(i) to provide that nothing in this section requires 
the provision of medical treatment where the recipient has a 
legitimate, nondiscriminatory reason for denying or limiting that 
service or where the disability renders the individual not qualified 
for the treatment.

[[Page 40082]]

    Proposed Sec.  84.56(c)(1)(ii) identified the circumstances when a 
recipient typically declines to provide treatment and proposed that the 
criteria in paragraphs (b)(1)(i) through (iii) would not be legitimate 
nondiscriminatory reasons for denying or limiting medical treatment and 
could not be a basis for determining that an individual is not 
qualified for treatment or that a treatment is not clinically 
appropriate.
    The Department invited comment on the examples described in this 
section, whether additional examples were needed and on the appropriate 
balance between prohibiting discriminatory conduct and ensuring 
legitimate professional judgments.
    Proposed Sec.  84.56(c)(2) addressed the role of consent in 
evaluating obligations under Sec.  84.56. We proposed in Sec.  
84.56(c)(2)(i) to make clear that nothing in the section requires a 
recipient to provide medical treatment to an individual where the 
individual does not consent to the treatment. We proposed in Sec.  
84.56(c)(2)(ii) to provide that nothing in the section allows a 
recipient to discriminate against a qualified individual with a 
disability in seeking to obtain consent.
    We proposed in Sec.  84.56(c)(3) to provide that nothing in the 
section precludes a recipient from providing an individual with a 
disability with information regarding the implications of different 
courses of treatment based on current medical knowledge or the best 
available objective evidence.
    The comments and our responses regarding Sec.  84.56 are set forth 
below.
    Comments: Commenters expressed broad support for the medical 
treatment section, with many expressing particular support for the 
general prohibition against discrimination. Many people with 
disabilities shared experiences regarding the inappropriate denial of 
medical treatment, while many provider organizations expressed 
appreciation for the regulatory clarity and respect for professional 
judgment in the proposed provision.
    Response: The Department appreciates the broad support for this 
section. We also thank all of the commenters who took the time to share 
their experiences with us.
    Comments: Many commenters indicated that further guidance, public 
education, and technical assistance activities will be necessary to 
promote compliance and awareness of the obligations of the new medical 
treatment section. Examples include issuing supporting Frequently Asked 
Questions, guidance for health care providers and others on the use of 
supported decision-making and other reasonable modifications to support 
accessibility and nondiscrimination, guidance on what is and is not a 
legitimate, nondiscriminatory reason for denying or limiting a service, 
expectations for documentation of legitimate nondiscriminatory reasons, 
guidance on how the prohibition on discrimination in medical treatment 
interacts with other sections of the regulation, and other topics.
    Response: The Department agrees that further efforts may be 
necessary to promote awareness of and compliance with the medical 
treatment sections of this rulemaking. The Department will consider a 
variety of options for such activities after the issuance of the final 
rule, including sub-regulatory guidance and technical assistance.
Definition of Medical Treatment
    Comments: Multiple commenters suggested the final rule should 
include a definition of medical treatment. Many suggested changes to 
the description of medical treatment included in the NPRM. Some 
commenters suggested the Department include additional types of health 
conditions to the description of medical treatment, specifically 
suggesting additions such as intellectual, developmental, or behavioral 
health conditions to the language ``physical and mental health 
conditions'' in the proposed rule. Several commenters asked the 
Department to clarify if habilitative services would be covered medical 
treatment. Other commenters requested we use a new term entirely that 
they believed would better encompass the breadth of treatment, like 
``treatment options,'' ``health care services,'' ``comprehensive 
medical care,'' ``medical services,'' or ``goods, benefits, or 
services.'' Another commenter requested that we clarify that the term 
is inclusive of services delivered in the context of clinical research.
    Response: The Department has elected not to define the term 
``medical treatment'' in the regulation, but instead uses the term in a 
generic, nonspecific manner. As stated in the preamble to the proposed 
rule, ``medical treatment'' is intended to be broad and inclusive. The 
Department interprets medical treatment to encompass habilitative 
services and services delivered as part of clinical research. The term 
physical or mental health condition in the description of medical 
treatment in the proposed rule is sufficiently broad to encompass the 
additional, suggested language referenced by the commenters, including 
intellectual, developmental, or behavioral health conditions, etc. We 
will retain the approach in the proposed rule, giving ``medical 
treatment'' its plain meaning, and reiterating that it is intended to 
be broad and inclusive.
Notice
    Comments: Several commenters requested that the Department require 
all forms of medical treatment to include a notice of requirements 
under section 504 to familiarize people with disabilities receiving 
medical treatment from recipients with recipient obligations and 
patient rights pursuant to them.
    Response: We decline to make this change. Section 84.8, Notice, 
requires all recipients to make available to beneficiaries and other 
interested persons information about the provisions of section 504 and 
its applicability to the programs or activities of the recipient. 
Recipients must take such steps as necessary to apprise individuals of 
the protections against discrimination assured them by section 504 and 
this part, however we decline at this time to regulate how and when 
recipients are required to do that.
Best and Promising Practices
    Comments: Several commenters recommended best practices for 
addressing disability discrimination, including competency-based 
trainings on disability; a mechanism for allowing individuals with 
disabilities to appeal medical treatment denials or limitations; a 
structured process for requesting a second opinion/professional 
consultation; and the availability of a specially trained, independent 
review board--with a composition that includes people with a wide range 
of disabilities--to consider patient appeals of medical treatment 
decisions and report publicly on the outcome of those decisions.
    Response: While these ideas are potentially promising practices for 
assisting persons with disabilities as they seek health care, the 
Department believes it is unnecessary to include these requirements at 
this time to ensure compliance with section 504's nondiscrimination 
requirement. Recipients may consider them as potential options within a 
holistic strategy of providing health care to persons with 
disabilities.
Utilization Management Practices
    Comment: A medical organization asked the Department to respond to 
an example under which ``a drug that slows the progression of visual 
impairment is clinically appropriate only if a patient has a minimum 
level of visual acuity remaining based on the enrolled populations in 
the drug's

[[Page 40083]]

clinical trials,'' leading ``a Medicare Part D plan [to] place a prior 
authorization requirement that the patient have that minimum level of 
visual acuity for the drug to be covered by the plan.'' They ask the 
Department whether such a prior authorization that would only cover the 
drug for those with the minimum level of visual acuity would be viewed 
as discriminatory under section 504.
    Response: As indicated elsewhere within the preamble, prior 
authorization and other utilization management activities are covered 
by section 504 and Sec.  84.56. However, determining whether a 
particular prior authorization or other utilization management decision 
by a health plan may violate section 504 is a fact-specific inquiry 
that we do not address in this final rule.
Interaction With Medicare
    Comment: A medical organization noted their obligation under 
Medicare Parts A and B and Medicare Advantage to allow coverage only 
for items and services that are ``reasonable and necessary for the 
diagnosis or treatment of illness or injury or to improve the 
functioning of a malformed body member'' as well as their obligation 
under Medicare Part D to require that a drug be for a ``medically 
accepted indication.'' They also ask that the Department include 
specific regulatory language in the final rule deeming the application 
of coverage restrictions in Federal health programs to meet the 
proposed rule's standard for being nondiscriminatory and, therefore, 
permissible.
    Response: As the Department discusses elsewhere with respect to the 
interaction of section 504's integration mandate and Medicaid law, 
obligations under civil rights laws and program statutes, such as for 
Medicare, are separate and distinct. Recipients are not required to 
fundamentally alter their programs or activities to comply with section 
504. However, recipients may be obligated to make reasonable 
modifications to programs or services in order to comply with section 
504 even if they are fully in compliance with applicable program 
statutes in Federal health programs. As such, the Department has 
elected not to modify the regulatory text.
Scope of Sec.  84.56
    Comment: One commenter requested that we make clear that the 
general prohibitions on discrimination in proposed Sec.  84.68 continue 
to apply in the context of medical treatment notwithstanding proposed 
Sec.  84.56's more specific provisions on discrimination in medical 
treatment.
    Response: The general prohibition against discrimination in 
proposed Sec.  84.68 continues to apply in the context of medical 
treatment. While Sec.  84.56 articulates more specific prohibitions, 
this does not preclude the application of Sec.  84.68's more general 
requirements to medical treatment or any of the other areas in which 
the Department has included more specific regulatory provisions, nor 
should the omission of a specific regulatory provision on a particular 
topic be construed to suggest that the general prohibition against 
discrimination does not apply in that context.
    Comments: Several commenters suggested modifying Sec.  84.56(a) to 
clarify that its prohibition on discrimination encompasses offering, 
failing to offer, or denying a treatment.
    Response: The Department agrees that Sec.  84.56(a)'s prohibition 
on discrimination on the basis of disability can encompass instances 
where a recipient offers, fails to offer, or denies a treatment. Other 
provisions within the rule which provide further detail on the 
prohibitions within Sec.  84.56(a) explicitly indicate this, such as 
Sec.  84.56(b). We believe these prohibitions are covered by the rule 
already, and thus decline to change the regulatory text.
    Comments: Several commenters asked the Department to clarify how 
Sec.  84.56 applies to payers, including Medicaid managed care plans, 
Medicare Advantage plans, and other health systems payers receiving 
Federal financial assistance.
    Response: Section 84.56 applies to all medical treatment provided 
by recipients receiving funds from HHS. The application of Sec.  84.56 
in such instances will depend on the specific facts and institutional 
context of each case.
    Comments: Many commenters asked the Department to specifically 
clarify other forms of medical treatment that Sec.  84.56 would apply 
to, including assisted reproductive technology treatment, suicide 
prevention services, mental health services, and others.
    Response: As indicated previously, the Department intends Sec.  
84.56 to apply in a broad and inclusive fashion to a wide array of 
medical treatment services, including assisted reproductive technology 
treatment, suicide prevention services, mental health services, and 
others. ``Medical treatment'' is used in Sec.  84.56 in a generic, 
nonspecific manner; it is intended to be broad and inclusive. It refers 
to the management and care of a patient to identify, address, treat, or 
ameliorate a physical or mental health condition, injury, disorder, or 
symptom, whether or not the condition constitutes a disability and 
whether the medical approach is preventive, curative, habilitative, 
rehabilitative, or palliative. Although it is not possible to provide 
an exhaustive list of such services, recipients should interpret the 
term medical treatment in the broad and inclusive fashion intended by 
the Department.
    Comments: Some commenters requested the Department clarify that 
Sec.  84.56 applies both to patients with disabilities that predate the 
provision of medical treatment in which discrimination occurs, and 
patients whose prognosis during that episode of medical treatment 
includes disability.
    Response: As discussed elsewhere in this rulemaking, the definition 
of disability under section 504 is intended to be interpreted in a 
broad and inclusive fashion. The definition of disability includes 
people with disabilities whose disability predates the provision of 
medical treatment in which discrimination occurs. As far as the 
question of patients whose prognosis during the episode of medical 
treatment includes disability, people with physical or mental 
impairments that substantially limit a major life activity, including a 
major bodily function, qualify as people with disabilities. As 
indicated elsewhere within the rule, ``major life activities'' includes 
not only activities such as caring for oneself, seeing, hearing, and 
walking, but also includes the operation of a major bodily function 
such as the functions of the immune system, normal cell growth, and 
reproductive systems. Where a person's prognosis is the result of 
impairments in a major bodily function, they would be considered a 
person with a disability under section 504. We note also that section 
504 protects persons who are ``regarded as'' having such an impairment. 
In cases of illness or injury so severe that a person needs a 
ventilator and tube feeding, or where a person is regaining 
consciousness after brain injury, as raised in comments received on 
this issue, although it will be a fact-specific inquiry, the 
individuals in these scenarios would almost certainly be covered under 
the definition of disability and by the protections from discrimination 
on the basis of disability under section 504, including Sec.  84.56.
    Comments: Several commenters asked the Department to clarify the 
application of Sec.  84.56 to newborn infants.
    Response: As indicated within the NPRM, the Department considers

[[Page 40084]]

section 504, including Sec.  84.56, to apply to newborn infants. This 
includes the prohibitions against the denial of medical treatment under 
Sec.  84.56(b)(1) and (2), and the prohibitions on the discriminatory 
provision of medical treatment under Sec.  84.56(b)(3).
    Comment: One commenter objected based on its understanding that the 
Department's proposed rule would not apply to decisions to withhold 
treatment from infants with disabilities in which the disabling 
condition is related to the condition to be treated, noting that Sec.  
84.56(b)(2) addresses treatment for a separately diagnosable condition 
or symptom and not for the underlying disability. The comment concerned 
infants with disability conditions such as meningomyelocele, 
hydrocephaly, microcephaly, or other anatomical anomalies. The comment 
noted that failure to treat these conditions represents discrimination 
against a child with a disability.
    Response: The Department believes that this comment misconstrues 
the section 504 rule. The Department intends that this rule will 
generally apply to the provision of medical treatment for infants, 
including those seeking treatment for separately diagnosable symptoms 
or conditions related to their underlying disability, when medical 
treatment is provided to other similarly situated children. For 
example, an infant with microcephaly may experience seizures. This 
would constitute a separately diagnosable symptom or condition for 
which treatment would be subject to the protections of Sec.  
84.56(b)(2) despite the fact that the seizures are a symptom of the 
infant's microcephaly. As the Department's NPRM made clear, with 
respect to separately diagnosable conditions, the rule will not require 
that the condition be entirely unrelated to the underlying disability. 
``Nor does it matter for these purposes whether the condition for which 
the individual is seeking treatment is in some sense causally related 
to the underlying disability if the decision to refuse treatment would 
not be made as to similarly situated individuals without the 
disability.'' 88 FR 63405. In addition, Sec.  84.56(b)(1) prohibits 
denying or limiting medical treatment to a qualified individual with a 
disability based on bias or stereotypes about that patient's 
disability, judgments that the individual will be a burden on others 
due to their disability, or a belief that the life of a person with a 
disability has a lesser value than the life of a person without a 
disability or that life with a disability is not worth living. Under 
such circumstances, the discrimination described by the commenter would 
also be covered under Sec.  84.56(b)(1) even if the condition for which 
the patient sought treatment was not a separately diagnosable symptom 
or condition from their underlying disability.
Medical Futility
    The Department proposed Sec.  84.56(b)(1)(iii) to prohibit 
recipients from denying or limiting medical treatment based on the 
provider's belief that the life of a person with a disability has a 
lesser value than a person without a disability, or that life with a 
disability is not worth living.
    Comments: The Department received a broad array of comments from 
disability organizations, civil rights organizations, and other 
stakeholders supporting this approach. We received stories from people 
with disabilities describing their own experiences or those of friends 
regarding the denial of life-sustaining treatment and the difficulties 
involved in accessing it after such denials. We also received similar 
stories from providers. For example, one provider association described 
a 25-year-old patient with a developmental disability who had been 
referred to an inpatient hospice unit after becoming poorly responsive 
with brain imaging demonstrating a shunt and severe abnormalities. 
After the provider learned from a family member of a recent sudden 
change in the patient's behavior, the patient received a second 
opinion, leading to the shunt being surgically revised, the patient's 
condition improving, and her enjoying her life for many more years. In 
the words of this commenter, the patient's ``referral to hospice 
without sufficient exploration of other treatment options was 
inappropriate and may have been driven by a mistaken clinical 
assumption regarding her baseline quality of life.''
    Response: The Department will retain the provision as proposed. We 
respond to specific questions regarding the application of this 
requirement throughout this section.
    Comments: Several commenters requested that the Department provide 
an example of the application of Sec.  84.56(b)(1)(iii) to people with 
intellectual disabilities.
    Response: The Department provided such an example within the NPRM. 
We noted an illustrative example in which a teenage boy with 
intellectual and developmental disabilities develops periodic treatable 
respiratory infections and pneumonia due to a chronic condition. 
Judging his quality of life to be poor due to cognitive and 
communication disabilities, his provider decides to withhold 
antibiotics and other medical care when the boy becomes ill. Instead, 
his provider--who is a recipient of Federal financial assistance--
refers the boy to hospice care and declines to provide life-sustaining 
treatment. The provider makes this decision not because she anticipates 
that care would be ineffective, but because she determines that such 
care would be effective at prolonging the patient's life and that the 
patient's life would not be worth living on the basis of the patient's 
disability. Because the provider has withheld life-sustaining care 
based on the judgment that the patient's life as an individual with a 
disability is not worth living, the boy is a qualified individual who 
has experienced discrimination on the basis of disability in violation 
of Sec.  84.56(b)(1)(iii).
    Comment: A commenter asked for additional clarity regarding the 
permissibility of not offering treatment where doing so ``does not 
align with the patient's wishes, does not take into account their 
overall prognosis, does not consider whether the risks would outweigh 
the benefits, or creates a situation where the treatment could cause 
more harm than good.''
    Response: The commenter raised multiple potential rationales for 
denying treatment, each of which has different legal implications under 
Sec.  84.56 and section 504 more generally. As the Department indicates 
in Sec.  84.56(c)(2), ``Nothing in this section requires a recipient to 
provide medical treatment to an individual where the individual, or 
their authorized representative, does not consent to that treatment.'' 
As such, recipients will not be required to provide treatment that does 
not align with a patient's expressed wishes or advanced directive.
    The permissibility of denial of treatment based on other potential 
rationales raised by the commenter are context- and fact-dependent. We 
indicate in Sec.  84.56(c)(1)(i) that nothing in this section requires 
the provision of medical treatment where the recipient has a 
legitimate, nondiscriminatory reason for denying or limiting that 
service or where the disability renders the individual not qualified 
for the treatment. Where a patient's prognosis affects whether 
treatment is likely to be effective, it may be permissible to consider 
prognosis in determining whether a treatment should be provided. 
Similarly, where a treatment is likely to have substantial side effects 
that may outweigh the likely benefits to the patient, it may be 
permissible to take these into account in determining whether a 
treatment should be provided

[[Page 40085]]

as these risks are relevant to whether a treatment is medically 
effective. However, consideration of a patient's prognosis may not 
include a judgment that the life of a person with a disability is not 
worth living or will be a burden on others due to their disability, as 
these are prohibited criteria under Sec.  84.56(b)(1)(i) through (iii). 
In short, while recipients may take into account potential harms to the 
patient, those harms may not include or be based on a belief that the 
patient would be better off dead than alive due to their disability.
    Comments: In the NPRM, the Department provided an example involving 
a patient with Alzheimer's disease, covered as a disability under 
section 504, who has developed pneumonia and needs a ventilator to 
provide assistance breathing. His husband has requested that physicians 
start the patient on a ventilator, consistent with what the patient's 
husband believes would be his spouse's wishes. The attending physician, 
who is a recipient of Federal financial assistance from HHS and works 
in a hospital that is also a recipient, tells the patient and his 
husband that the patient should not receive a ventilator, given the 
poor quality of life the physician believes the patient experiences 
because the latter has Alzheimer's disease. This situation occurs even 
though the attending physician normally would start ventilator support 
for a patient with pneumonia who needs assistance breathing. The 
physician believes that the patient's Alzheimer's disease renders the 
continuation of the patient's life to have no benefit, and therefore 
the physician declines to put the patient on the ventilator. We 
indicated that under these circumstances the physician has denied life-
sustaining care for the patient based on judgments that the patient's 
quality of life renders continued life with a disability not worth 
living and has failed to provide care that he would have provided to an 
individual without a disability. In denying access to ventilator 
support, the doctor has violated Sec.  84.56(b)(1)(iii).
    We received multiple comments specific to this example. Most 
commenters, particularly those representing aging and disability 
advocacy organizations, praised its inclusion, noting that it addressed 
an important issue facing both people with Alzheimer's and those with 
other cognitive disabilities, and requesting that it be incorporated 
within the final rule. A minority of commenters expressed concern with 
the use of Alzheimer's disease and suggested the Department consider 
the use of another diagnosis or specify that only ``early and mild'' 
Alzheimer's is covered in the circumstances described by the 
illustrative example.
    Response: The example describes the denial of medical treatment due 
to the provider's belief that the patient has such poor quality of life 
due to their disability that life-sustaining treatment would not be of 
benefit to them. This is a denial of treatment based on a belief that 
life with the patient's disability is not worth living, a prohibited 
basis for a denial of medical treatment under Sec.  84.56(b)(1)(iii) 
and not a legitimate nondiscriminatory reason to deny treatment, as 
specified under Sec.  84.56(c)(1)(ii). The example also indicates that 
this occurs even though the attending physician normally would start 
ventilator support for a patient with pneumonia who needs assistance 
breathing. We note that if the physician reasonably determines based on 
current medical knowledge or the best available objective evidence that 
such medical treatment is not clinically appropriate for the patient 
due to their Alzheimer's disease, this would not constitute prohibited 
discrimination. However, such a determination cannot--consistent with 
Sec.  84.56(c)(1)(ii)--be based on a judgment that the patient's life 
is not worth living due to their Alzheimer's disease.
    We note that the prohibition against denying treatment due to a 
judgment that the patient's quality of life would be so low as to make 
their life not worth living does not mean that a physician cannot 
communicate this concern to the patient or their authorized 
representative to inform their decision-making, provided the physician 
does not discriminate on the basis of disability in the manner in which 
they seek permission to withdraw or encourage the declining of life-
sustaining treatment (such as through pressuring the patient or their 
representative). This was why we specified in this example that the 
patient's authorized representative had sought medical treatment for 
the patient with Alzheimer's disease and that this treatment would have 
been provided to a similarly situated person without Alzheimer's 
disease.
    Comment: Organizations representing older adults and people with 
disabilities asked the Department to interpret the permissible 
application of medical futility narrowly and indicated that recipients 
must explicitly take into account disability accommodations when making 
determinations of medical futility. They also ask the Department to 
include examples of the consideration of reasonable modifications when 
making decisions regarding medical futility.
    Response: In the NPRM, the Department noted a 2015 policy statement 
from the American Thoracic Society, the American Association for 
Critical Care Nurses, the American College of Chest Physicians, the 
European Society for Intensive Care Medicine, and the Society of 
Critical Care Medicine entitled ``Responding to Requests for 
Potentially Inappropriate Treatments in Intensive Care Units.'' In the 
statement, the term medical futility was defined more narrowly, 
referring only to ``treatments that have no chance of achieving the 
intended physiologic goal.'' The policy statement contrasts this narrow 
definition of futility with broader definitions that include futility 
based on quality-of-life judgments, stating that ``broader definitions 
of futility are problematic because they often hinge on controversial 
value judgments about quality of life or require a degree of prognostic 
certainty that is often not attainable.'' \44\
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    \44\ G.T. Bosslet et al., An official ATS/AACN/ACCP/ESICM/SCCM 
Policy Statement: Responding to Requests for Potentially 
Inappropriate Treatments in Intensive Care Units, 191 a.m. J. 
Respiratory & Critical Care Med. 1318 (June 2015).
---------------------------------------------------------------------------

    The Department considers the former description of medical 
futility--``treatments that have no chance of achieving the intended 
physiologic goal''--to represent a permissible instance of the denial 
of treatment under Sec.  84.56 as a person with a disability for whom a 
treatment will not achieve the intended physiologic goal is not a 
qualified individual with a disability. In contrast, the denial of 
treatment due to ``value judgments about quality of life'' would likely 
constitute a prohibited denial of treatment under Sec.  
84.56(b)(1)(iii). Where futility is applied based on ``a degree of 
prognostic certainty that is often not attainable,'' whether this would 
constitute a prohibited denial of treatment would depend on if the 
level of prognostic certainty is less rigorous than that which would be 
applied to a similarly situated patient without a disability.
    The Department agrees with the commenter that recipients must take 
into account reasonable modifications required under section 504 when 
evaluating whether a given patient with a disability meets this 
standard. For example, some clinical protocols have made use of 
``therapeutic trials'' involving the provision of mechanical 
ventilation for a set period of time to evaluate the effectiveness of 
ventilator treatment for a particular patient, under which patients 
must meet a set

[[Page 40086]]

threshold or trajectory for continued treatment to be deemed non-
futile. However, as the Department previously noted within the NPRM, 
patients with particular types of disabilities may take longer to 
respond to treatment, and the test period may need to be longer to 
accurately evaluate the effectiveness of mechanical ventilation for 
these patients. In this situation, a recipient may need to allow an 
individual with a disability some additional time on a ventilator to 
assess likely clinical improvement, unless doing so would constitute a 
fundamental alteration of the ventilator trial.
    Comments: Several commenters asked the Department to clarify that 
the ongoing need for assistive technology, attendant care, or other 
physical assistance with activities of daily living, mechanical 
ventilation, supervision, or other disability support needs does not 
constitute sufficient reason to deny a qualified individual with a 
disability access to medical treatment. They also seek clarification 
that the fact that a person with a disability will not recover to their 
pre-treatment baseline is not sufficient basis to deny medical 
treatment that would succeed at prolonging a patient's life.
    Response: The Department agrees. A recipient generally may not deny 
medical treatment to a qualified individual with a disability, 
including via a medical futility determination, simply because the 
patient will require ongoing support during or after receiving medical 
treatment. As indicated in the NPRM, people with disabilities 
frequently report having a good quality of life notwithstanding their 
need for assistance in many of the areas cited in the literature as a 
basis for a futility determination, such as mechanical ventilation, the 
use of assistive technology, the need for ongoing physical assistance 
with activities of daily living, mobility impairments, cognitive 
disability, and other similar factors. Similarly, the fact that a 
patient with a disability may not recover to their pre-treatment 
baseline is generally not sufficient basis to justify denying of 
medical treatment, including via a medical futility determination.
    The Department noted in the NPRM that determinations that an 
individual with a disability's life is not worth living because of 
dependence on others for support or need for mechanical ventilation, 
intensive care nursing, tracheotomy, or other ongoing medical care rest 
on judgments that do not properly relate to the individual's 
qualification for medical treatment under section 504. Qualification 
for the service of life-sustaining treatment must be based on whether 
the treatment would be effective for the medical condition it would be 
treating, not broader societal judgments as to the relative value of a 
person's life due to their disability or whether life with a disability 
is worth living.
    Many people with disabilities require these kinds of supports, 
often on a long-term basis, to survive and thrive. With such supports, 
individuals with disabilities can and do live many years, enjoying 
meaningful social, family, and professional relationships. By denying 
patients with disabilities the opportunity to make their own decisions 
regarding whether to receive or continue medically effective life-
sustaining care, recipients override patient autonomy in favor of their 
own beliefs regarding the value of the lives of individuals with 
disabilities who are dependent on others or on medical equipment or 
technology.
Crisis Standards of Care
    Comments: The Department received a broad array of comments on the 
application of Sec.  84.56 to crisis standards of care.
    Many comments asked the Department to confirm the application of 
section 504 and Sec.  84.56 to crisis circumstances, provide additional 
examples of crisis standards of care obligations within the preamble or 
regulatory text, and respond to inquiries regarding the application of 
Sec.  84.56 to these contexts.
    Response: The Department confirms that section 504 and Sec.  84.56 
apply during the planning, development, activation, and implementation 
of crisis standards of care.
    Comments: Many commenters noted that during the COVID-19 public 
health emergency many State crisis standards of care plans included 
both categorical exclusions from crisis care on the basis of specific 
disabilities and other instances of unfavorable treatment against 
people with specific disabilities (such as relative de-prioritization 
for scarce critical care resources). These commenters asked the 
Department to clarify the obligations of section 504 with respect to 
categorical exclusions and other instances of unfavorable treatment on 
the basis of specific disability diagnoses (such as cancer, cystic 
fibrosis, dementia, or intellectual disability) or on the basis of 
functional impairments (such as difficulty with activities of daily 
living).
    Response: As indicated under Sec.  84.56(b)(2), when a qualified 
individual with a disability seeks or consents to treatment for a 
separately diagnosable symptom or medical condition (whether or not 
that symptom or condition is a disability under this part or is 
causally connected to the individual's underlying disability), a 
recipient may not deny or limit clinically appropriate treatment if it 
would be offered to a similarly situated individual without an 
underlying disability. When a crisis standards of care plan indicates 
that patients with specific disabilities will be categorically 
excluded, given lower priority, or otherwise will receive unfavorable 
treatment when seeking access to critical care resources, this may be a 
denial of treatment for a separately diagnosable symptom or medical 
condition that would be provided to a similarly situated individual 
without an underlying disability. If the patient with a disability is 
qualified to receive such treatment, this may constitute a violation of 
Sec.  84.56(b)(2). This analysis applies both to unfavorable treatment 
on the basis of specific diagnoses and on the basis of functional 
impairments that constitute disabilities under section 504.
    We discuss here some relevant considerations regarding 
qualification to receive treatment in the crisis standards of care 
context. Categorical exclusions on the basis of disability in crisis 
standards of care are prohibited when treatment would not be futile for 
all individuals with that type of disability i.e., that the treatment 
has no chance to achieve the intended physiologic goal for all persons 
with that particular type of disability. For example, a hospital is 
generally prohibited from having a categorical exclusion denying 
ventilator treatment to individuals with Down syndrome because 
ventilator treatment is not futile for all persons with Down syndrome. 
Deprioritization of people with disabilities compared to people without 
disabilities and other instances of unfavorable treatment can also 
constitute violations of Sec.  84.56, if the disability receiving 
unfavorable treatment does not impact short-term mortality. A patient's 
disability should not form the basis for decisions regarding the 
allocation of scarce treatment for a separate medical condition or 
symptom, unless that underlying condition is so severe that it would 
prevent the treatment sought from being effective or prevent the 
patient from surviving until discharge from the hospital or shortly 
thereafter.
    We note that there are instances where Sec.  84.56 prohibits 
discriminatory treatment in crisis standards of care even where a 
patient is not seeking treatment for a separate symptom or condition 
but instead seeks treatment for their own underlying disability. For 
instance, Sec.  84.56(b)(1) clarifies that

[[Page 40087]]

unfavorable treatment, including categorical exclusions and 
deprioritization, based on bias or stereotypes about a patient's 
disability; judgments that the individual will be a burden on others 
due to their disability, including, but not limited to caregivers, 
family, or society; or a belief that the life of a person with a 
disability has lesser value than the life of a person without a 
disability, or that life with a disability is not worth living are 
violations of Sec.  84.56 regardless of what type of medical treatment 
the patient is seeking.
    Comments: Many commenters asked the Department to discuss the 
application of section 504 and Sec.  84.56 to instances of denial of 
medical treatment on the basis of judgments of long-term life-
expectancy as a result of a patient's disability, a common feature of 
many crisis standards of care plans.
    Response: As the Department has previously indicated in its 
February 2022 guidance, recipients may not deny or give lower priority 
to patients with disabilities because of a judgment that their long-
term life expectancy may be lower than an individual without a 
disability after treatment.\45\ Section 504 prohibits recipients, 
including those implementing crisis standards of care, from imposing or 
applying eligibility criteria that screen out or tend to screen out 
individuals with disabilities, or any class of individuals with 
disabilities, from fully and equally enjoying a program or activity, 
unless such criteria can be shown to be necessary for the provision of 
the program or activity being offered.\46\ In the context of crisis 
standards of care implementation, which is designed to address resource 
shortages in a temporary emergency, a patient's likelihood of survival 
long after hospital discharge, which may depend upon many factors and 
may be difficult to predict, is unlikely to be related to the need to 
make allocation decisions about scarce resources on a temporary 
basis.\47\ The further in the future a provider forecasts, the less 
likely survival has to do with the effectiveness of the medical 
intervention in the context of the public health emergency 
necessitating crisis standards of care. Judgments about long-term life 
expectancy are inherently uncertain and may screen out or tend to 
screen out individuals with disabilities from access to care without 
being necessary for the safe provision of the health care being 
offered. Given these concerns about long-term life expectancy 
calculations in the crisis standard of care context, denying or 
providing lower priority for access to scarce critical care resources 
based on a patient's disability impacting their long-term life 
expectancy when such critical care resources would be provided to a 
patient without such a disability may also constitute a violation of 
Sec.  84.56(b)(2), insofar as it would represent a denial of medical 
treatment for a separate symptom or condition that would be provided to 
a similarly situated person without a disability. This may also violate 
other provisions of the section 504 regulation, including the general 
prohibitions against discrimination in Sec.  84.68 and the broad 
prohibition against discrimination in medical treatment in Sec.  
84.56(a).
---------------------------------------------------------------------------

    \45\ U.S. Dep't of Health & Human Servs., Off. for Civil Rts., 
FAQs for Healthcare Providers during the COVID-19 Public Health 
Emergency: Federal Civil Rights Protections for Individuals with 
Disabilities under section 504 and Section 1557 (Feb. 4, 2022), 
https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/disabilty-faqs/.
    \46\ See Sec.  84.68(b)(8); 28 CFR 35.130(b)(8) (DOJ title II 
regulation).
    \47\ See U.S. Dep't of Health & Human Servs., Off. for Civil 
Rts., FAQs for Healthcare Providers during the COVID-19 Public 
Health Emergency: Federal Civil Rights Protections for Individuals 
with Disabilities under section 504 and Section 1557 (Feb. 4, 2022), 
https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/disabilty-faqs/ at question 7.
---------------------------------------------------------------------------

    Comments: Several commenters urged the Department to clarify that 
crisis standards of care protocols that deny, limit, or give lower 
priority to people with disabilities in accessing critical care 
resources based on anticipated resource utilization could constitute a 
violation of section 504 and Sec.  84.56.
    Response: The Department agrees that such denials, limitations, or 
lower priority for people with disabilities than other persons for 
critical care resources based on resource-utilization can constitute a 
violation of section 504 and Sec.  84.56. As discussed in the NPRM, 
practices or protocols in which recipients deny medical resources based 
on the projected length or scope of resources needed, and thus deny 
care to certain individuals with a disability because they are 
concerned that treating a patient with a disability may require more of 
a particular resource than treating individuals without a disability, 
may discriminate against persons with disabilities.\48\
---------------------------------------------------------------------------

    \48\ 88 FR 63401.
---------------------------------------------------------------------------

    Comments: Several commenters asked the Department to clarify that 
reasonable modifications may be required to assessment tools used to 
prioritize patients for access to critical care under crisis standards 
of care and to provide examples of such modifications.
    Response: The Department has carefully considered the comments 
received and as discussed in the NPRM, recipients may be required to 
make reasonable modifications to prognostic scoring tools used to 
prioritize critical care resources under crisis standards of care, just 
as this obligation exists outside of crisis standards of care contexts. 
For instance, throughout the COVID-19 pandemic, many States and 
hospitals indicated they planned to make use of the Sequential Organ 
Failure Assessment (SOFA) to make judgments about short-term life 
expectancy in the event that crisis standards of care were activated. 
The SOFA is a composite instrument, incorporating scores from multiple 
other instruments into a composite score that has been used within 
crisis standards of care allocation to predict short-term life 
expectancy. Among the component instruments of the SOFA is the Glasgow 
Coma Scale (GCS). Application of the GCS, a tool designed to measure 
the severity of acute brain injuries, may not yield a valid result 
(i.e., it may not correspond to actual mortality risk) when applied to 
patients with underlying disabilities that impact speech or motor 
movement issues. The GCS assigns a more severe score to patients who 
cannot articulate intelligible words or who cannot obey commands for 
movement. However, many disabilities result in these same attributes--
such as autism and cerebral palsy--but do not contribute to short-term 
mortality. As a result, the use of the SOFA with patients with such 
underlying disabilities may lead to an unduly pessimistic prediction of 
short-term survival, giving such patients lower priority in accessing 
scarce critical care resources.
    As the American Academy of Developmental Medicine and Dentistry 
(AADMD) notes, ``in the field of developmental medicine, there are 
patients who, at their natural baseline often cannot hear a command, 
move their limbs or communicate verbally. Given the combination of 
characteristics inherent in the population of people with intellectual 
and developmental disabilities, it would be possible to use `objective' 
data surrounding the SOFA score to predict a significantly higher 
mortality risk than is really the case.'' \49\ Similar impacts may 
exist for other types of disabilities and other prognostic scoring 
tools, measures, diagnostic instruments, and

[[Page 40088]]

methodologies for assessment or the allocation of scarce medical 
resources.
---------------------------------------------------------------------------

    \49\ Am. Acad. of Dev. Med. & Dentistry, People with 
Intellectual and Developmental Disabilities and the Allocation of 
Ventilators During the COVID-19 Pandemic (Apr. 2020), https://static1.squarespace.com/static/5cf7d27396d7760001307a44/t/5ecfb6fff13530766aeae51a/1590671105171/Ventilator+-+Policy+Statement+w+Addendum.pdf.
---------------------------------------------------------------------------

    The general requirement that recipients provide reasonable 
modifications when necessary to avoid discrimination that appears in 
proposed Sec.  84.68(b)(7) applies in circumstances of scarce 
resources, just as it does elsewhere. Section 504 might, for example, 
require reasonable modifications in the administration of assessment 
tools such as the SOFA and the GCS (which may be used within a larger 
scoring rubric for the allocation of scarce resources) to ensure that 
the tools measure accurately what they are intended to measure in 
people with disabilities. For example, a scoring tool may typically 
assess the inability of a person to articulate words, but it would 
likely be discriminatory to use that determination to indicate an 
actual mortality risk when assessing a person with cerebral palsy 
because that person's pre-existing speech impairments do not imply 
mortality risk in the context of the acute care episode the person is 
seeking care for. We also note that, in general, mortality risk 
screening should be linked to the event that led to the acute care 
episode rather than an individual's pre-existing disability.
Organ Transplantation
    In the NPRM, the Department noted that organ transplant 
discrimination against people with disabilities remains an ongoing 
problem. OCR's investigative experience confirms ongoing concerns about 
discrimination at various points in the transplant process. Medical 
providers and transplant programs continue to refuse to evaluate 
patients with disabilities who are otherwise qualified for transplant 
eligibility and fail to place qualified patients on transplant waiting 
lists because of exclusions and limitations for certain disabilities 
that are not supported by objective evidence or that do not take into 
account reasonable modifications in assessing an individual's ability 
to manage postoperative care needs and other aspects of 
transplantation. For example, in 2019, OCR resolved a case alleging 
discrimination against an individual with Autism Spectrum Disorder, in 
which the complainant alleged that a medical center deemed the patient 
ineligible to be considered for evaluation for placement on a heart 
transplant wait list because of the individual's diagnosis of Autism 
Spectrum Disorder and anticipated difficulties managing postoperative 
care. OCR worked with the recipient to enter a voluntary resolution 
agreement and the medical facility agreed to reevaluate the 
individual's eligibility for placement on the waiting list and consider 
the services and supports the individual could access to manage 
postoperative care.
    Comments: Many commenters praised the Department for addressing 
discrimination against people with disabilities in organ 
transplantation and urged the Department to clarify that section 504 
and Sec.  84.56 apply to the broad scope of the organ transplantation 
process, including the provision of information that transplantation 
was an option, referral to a transplant center, evaluation by the 
transplant center for clinical eligibility for transplantation, 
evaluation for ability to manage post-operative care needs, 
prioritization for access to organ transplants, and other aspects of 
organ transplantation. They also asked the Department to include 
additional information and examples regarding the application of Sec.  
84.56 to organ transplant discrimination and to respond to specific 
inquiries.
    Response: The Department agrees that organ transplant 
discrimination against people with disabilities remains an ongoing 
problem and that section 504 and Sec.  84.56 apply throughout the organ 
transplantation process, including the provision of information, 
referrals, evaluation, eligibility, prioritization and other aspects of 
the transplantation process. We respond to inquiries and provide 
further information on the application of Sec.  84.56, including 
illustrative examples, throughout this subsection.
    Comments: Many commenters highlighted discrimination against people 
with disabilities, particularly people with developmental disabilities, 
seeking access to organ transplantation on the grounds that they would 
not be able to manage their post-operative care needs. These commenters 
asked the Department to indicate that evaluation for suitability of 
transplantation must be done taking into account modifications the 
patient with a disability may use to manage their post-operative care 
regimen, including both formal and informal supports. A commenter also 
asked the Department to indicate that denying a person with a 
developmental disability, such as intellectual disability or autism, 
access to organ transplantation because the recipient believes the 
person with a disability would not be able to maintain the strict 
regimen necessary to avoid organ rejection would constitute a violation 
of Sec.  84.56(b)(1), which prohibits denial of medical treatment based 
on biases or stereotypes on the basis of a person's disability. Another 
commenter described a patient with a disability being denied access to 
transplantation due to concerns on the part of the transplant center 
that their supporter also had a disability and would not be able to 
provide the patient with adequate assistance after their operation due 
to the supporter's disability.
    Response: The Department agrees that denying a person with a 
developmental disability access to organ transplantation because the 
recipient believes the person with a disability would not be able to 
manage their post-operative care needs may violate Sec.  84.56(b) if 
this assessment did not take into account modifications the patient may 
make use of, such as reliance on formal and informal care and other 
supports. Such a denial could constitute a violation of Sec.  
84.56(b)(1), if motivated based on biases or stereotypes about the 
patient's disability. However, even where this denial is not the result 
of biases or stereotypes regarding a patient's disability, it may be 
prohibited by other provisions of this rule. For example, a transplant 
center that conducts an individualized evaluation of a patient with a 
developmental disability and concludes they would be unable to manage 
their post-operative care needs independently may not have done so as a 
result of biases or stereotypes. However, by not considering within 
their evaluation the patient's ability to manage their post-operative 
care needs with support from family, service-providers or others in the 
patient's circle of support, a recipient may violate Sec.  84.68(b)(7), 
which requires reasonable modifications to policies, practices and 
procedures for people with disabilities, and Sec.  84.56(b)(2), as 
evaluating whether a person with a disability is qualified to receive a 
transplant and/or similarly situated to a person without a disability 
who would receive an organ transplantation must be done taking into 
account the reasonable modifications the patient with a disability may 
utilize in order to meet qualification standards.
Clinical Research
    Clinical research participation can offer considerable benefit to 
both the individuals participating and society at large. In addition to 
the intangible benefits of advancing scientific discovery and 
contributing to the development of potential medical interventions, 
those participating in clinical research are often able to obtain 
access to diagnostic, preventative, or therapeutic interventions and 
treatments that would not otherwise be available to them. The 
unnecessary exclusion of people with disabilities from clinical 
research harms those who

[[Page 40089]]

are denied the direct benefits of research participation. It also 
threatens the generalizability of research findings and potentially the 
reach of subsequent medical innovations for those groups who are 
excluded.
    Recent research has documented that people with disabilities face 
systemic and unnecessary exclusion from clinical research.\50\ Although 
study exclusions and other restrictions in eligibility criteria can be 
justifiable in appropriate cases based on the nature of the clinical 
research being conducted, they can also be the result of a failure to 
take into account the availability of reasonable modifications to a 
study protocol that might permit the participation of people with 
disabilities. It also may be the result of overly narrow eligibility 
criteria rooted in stereotypes, bias, or misunderstandings of the 
capabilities of people with specific disabilities. Investigators may 
have valid reasons for excluding people whose disabilities are 
medically incompatible with the study being conducted. When evaluating 
potential study participants on an individualized basis, clinical 
judgment may be necessary on the part of the investigator to assess the 
appropriateness of study participation. However, it is important that 
study eligibility criteria be written in a way that does not 
unnecessarily screen out people with disabilities whose research 
participation would not alter the intended purpose of the program of 
clinical research being undertaken.
---------------------------------------------------------------------------

    \50\ Willyanne DeCormier Plosky et al., Excluding People with 
Disabilities from Clinical Research: Eligibility Criteria Lack 
Clarity and Justification, 41 Health Aff. 10 (Jan. 2022). https://doi.org/10.1377/hlthaff.2022.00520; Katie McDonald et al., 
Eligibility Criteria in NIH-funded Clinical Trials: Can Adults with 
Intellectual Disability Get In? 15 Disability & Health (2022), 
https://doi.org/10.1016/j.dhjo.2022.101368.
---------------------------------------------------------------------------

    Similarly, overly narrow eligibility criteria that unnecessarily 
screen out people with disabilities may be motivated by concerns 
regarding the ability of potential study participants with disabilities 
to perform research-related tasks that can be reasonably modified, such 
as filling out tests or responding to instructions from research 
personnel, or by the failure to take into account the recipient's 
obligation to provide for effective communication or make reasonable 
modifications for people with disabilities.
    Many commenters appreciated the specific application of section 
504, including Sec.  84.56, to clinical research activities in the 
proposed rule, and asked the Department to provide further examples and 
respond to queries regarding the application of section 504, including 
but not limited to Sec.  84.56, to clinical research. Some commenters 
provided specific examples of discrimination on the basis of disability 
in clinical trials, including on the basis of leukemia, multiple 
sclerosis, HIV, obesity, muscular dystrophy and other neuromuscular 
diseases as well as other diagnoses. Many examples focused on the 
negative consequences of being denied access to clinical research on 
those people with disabilities turned away.
    Other commenters focused on the adverse implications on society as 
a whole of excluding people with disabilities from clinical research. 
For instance, some commenters noted the impact of clinical research in 
value assessment activities that inform payer activities regarding 
utilization management and the coverage of particular medical 
interventions for specific patient populations. (We further discuss the 
intersection of clinical trial exclusions on the basis of disability 
and utilization management decisions by payers elsewhere within this 
subsection.) Others noted that the exclusion of people with 
disabilities from clinical research may contribute to a lack of 
information on differences in the efficacy, effectiveness, and side 
effects profiles of medical interventions being studied.
    Response: As indicated elsewhere in this section, the Department 
considers Sec.  84.56 to apply to clinical research activities of 
recipients. The provision of Sec.  84.56 that is most likely to be 
relevant to clinical research is Sec.  84.56(b)(2), which prohibits 
denying or limiting treatment for a separately diagnosable symptom or 
medical condition if it would be offered to a similarly situated 
individual without an underlying disability. In addition, section 504 
regulations include other provisions that apply to clinical research 
activities. For example, Sec.  84.68(b)(8) prohibits imposing or 
applying eligibility criteria that screen out or tend to screen out 
individuals with disabilities or classes of individuals with 
disabilities from ``fully and equally'' enjoying any program or 
activity, unless the criteria can be shown to be necessary for the 
provision of the program or activity being offered. However, the 
Department notes that application of each of these provisions is fact-
dependent. As the Department noted within the NPRM, the use of 
eligibility criteria that screen out or tend to screen out people with 
disabilities from clinical research can constitute a violation of this 
provision.
    For example, assume that a researcher employed by an entity 
receiving Federal financial assistance develops a protocol for use in 
clinical research evaluating a new intervention for diabetes care. The 
researcher articulates inclusion and exclusion criteria for the study 
and includes a requirement that study participants must not have a 
visual impairment, based on the determination that patients with 
diabetes-related visual impairments would be medically contraindicated 
from making use of the intervention. Potential study participants with 
any form of visual impairment are excluded, even if their blindness is 
not indicative of a stage of diabetes disease progression that would 
preclude treatment effectiveness. Prohibiting a qualified individual 
with a disability from participating in a clinical research program 
based on a broad-based categorical judgments related to a disability 
likely violates section 504, where such categorical exclusion criteria 
are not necessary for the implementation of the study, as doing so 
screens out individuals with disabilities from participating in a 
program of clinical research and is not necessary for the operation of 
the research program. In contrast, a researcher in similar 
circumstances who excludes only patients with diabetes-related visual 
impairments that are likely to impact eligibility for the study because 
of the clinical appropriateness of receiving the treatment being 
studied is not likely to be unnecessarily screening out individuals 
with disabilities, as excluded patients are only those who are 
medically contraindicated for the treatment. In addition, the 
obligation articulated in Sec.  84.68(b)(7) to make reasonable 
modifications to policies, practices, or procedures when necessary to 
avoid discrimination unless the modification would fundamentally alter 
the nature of the program or activity at issue also applies to clinical 
research.
    In some instances, excluding people with disabilities from clinical 
research may implicate further provisions of the section 504 
regulations. For example, a researcher who prohibits patients with 
cognitive disabilities from participating in a research study regarding 
cancer treatment based on a belief that they would not be able to 
provide informed consent could violate Sec.  84.56(b)(1)(i), as it 
constitutes a denial of medical treatment to a qualified individual 
with a disability based on stereotypes regarding a patient's 
disability, Sec.  84.56(b)(2), as it constitutes a denial of treatment 
for a separate symptom or condition that would be offered to a 
similarly situated person without a disability, and Sec.  84.68(b)(7) 
as concerns about informed consent could be

[[Page 40090]]

addressed through a reasonable modification permitting the prospective 
study participant with an intellectual disability to use supported 
decision-making by bringing a friend or family member to help study 
staff explain the study risks and benefits to them.
    Comments: One comment from an academic research center focused on 
clinical trials requested the Department replace the phrase ``exclusion 
criteria'' for ``eligibility criteria'' as the exclusion of people with 
disabilities from clinical research may take place both through 
explicit exclusion criteria and through overly narrow inclusion 
criteria or other components of a study protocol that result in the 
unnecessary exclusion of people with disabilities. They ask the 
Department to clarify that the obligations of section 504 apply to the 
broad scope of a study protocol and clinical research activities, not 
just exclusion criteria. Another commenter noted that people with 
disabilities are often excluded from clinical trials due to the use of 
clinical end points that are consistent with prior research studies but 
not necessary for the program of clinical research currently being 
undertaken.
    Response: The Department agrees that the unjustified exclusion of 
people with disabilities from clinical research can take place through 
explicit exclusion criteria, overly narrow inclusion criteria, and 
through other aspects of a study protocol or clinical research 
activities that unnecessarily screen out people with disabilities. We 
have revised the preamble language throughout to clarify this point and 
include other information on potential ways in which section 504 
applies to clinical research.
    Comment: Another commenter requested that the Department require 
organizations conducting clinical research and the Food and Drug 
Administration (FDA) show the exclusion of individuals with 
disabilities within the study population is necessary for the success 
of the study and not simply a continuation of a previous practice 
chosen for simplicity.
    Response: As indicated above, section 504 regulations require 
eligibility criteria to not screen out or tend to screen out people 
with disabilities from a clinical research program unless the criteria 
can be shown to be necessary for the provision of the program or 
activity being offered. Section 84.56 operationalizes this through 
multiple specific prohibitions, which we have articulated above. If 
recipients specifically exclude populations of persons with 
disabilities from their clinical research, they should articulate clear 
rationales for those populations of people with disabilities who are 
excluded to ensure that such exclusions are necessary for the provision 
of the program or activity of clinical research being conducted.
    Comment: A commenter described a scenario in which a patient was 
denied access to a clinical trial for a mental health treatment they 
were otherwise qualified for because the program required periodic 
imaging and the imaging equipment affiliated with the program had a low 
weight capacity that could not accommodate the patient's obesity. They 
sought and were denied a reasonable modification of using other imaging 
equipment available to the medical center that was not typically 
utilized in the clinical trial. They asked how section 504 would apply 
to this situation.
    Response: Whether the scenario described by the commenter 
constitutes a violation of section 504 is fact-dependent.\51\ Sections 
of the rule that would need to be considered would include Sec.  
84.56(b)(2), as the patient was seeking treatment for a separate 
medical symptom or condition and was denied it when it would have been 
provided to a similarly situated patient without a disability, and 
Sec.  84.68(b)(7), which requires reasonable modifications for people 
with disabilities. Recipients conducting clinical trials have an 
obligation to make reasonable modifications for people with 
disabilities, including using available accessible equipment elsewhere 
within a facility, unless they would constitute a fundamental 
alteration of the program or activity being offered. As indicated 
within the NPRM, the exclusion of people with disabilities from 
clinical research may also constitute a violation of Sec.  84.68(b)(8), 
which prohibits imposing or applying eligibility criteria that screen 
out or tend to screen out individuals with disabilities or classes of 
individuals with disabilities from ``fully and equally'' enjoying any 
program or activity, unless the criteria can be shown to be necessary 
for the provision of the program or activity being offered.
---------------------------------------------------------------------------

    \51\ We encourage any person who believes they or another party 
has been discriminated against on the basis of race, color, national 
origin, sex, age, or disability, to visit the OCR complaint portal 
to file a complaint online at: https://www.hhs.gov/civil-rights/filing-a-complaint/.
---------------------------------------------------------------------------

    Comment: Some commenters asked the Department to clarify that 
unnecessarily excluding people with disabilities from clinical research 
not related to their disability may constitute discrimination.
    Response: The Department agrees that section 504 applies to 
clinical research both relating to a patient's disability and not 
related to a patient's disability.
    Comment: Several commenters asked OCR to consider issuing sub-
regulatory guidance in collaboration with other parts of the Federal 
Government, including the National Institutes of Health and the FDA, 
regarding the application of section 504 to clinical research 
activities.
    Response: The Department will consider issuing guidance and 
providing technical assistance regarding the application of section 504 
to clinical research in the future.
Examples Regarding Sec.  84.56(b)(1)
    Many commenters requested the Department add additional prohibited 
rationales for discrimination to the regulatory text of Sec.  
84.56(b)(1), which provides a non-exhaustive list of prohibited 
rationales for denying or limiting medical treatment to a qualified 
individual with a disability and applies broadly (regardless of whether 
a patient is seeking treatment for their underlying disability or for a 
separate symptom or condition). The Department responds to these 
requests and for other clarifications regarding the application of 
Sec.  84.56(b)(1) in this subsection.
    Comment: One commenter requested that the Department add to Sec.  
84.56(b)(1) language prohibiting denying or limiting medical treatment 
to a qualified individual with a disability based on a belief that 
providing care for a patient with a disability would constitute a 
suboptimal use of recipient resources, unless the same judgment would 
be made about a patient who did not have a disability.
    Response: The Department agrees that a denial or limitation of 
treatment based on a belief that providing care for a patient with a 
disability would constitute a suboptimal use of recipient resources, 
where the same judgment would not be made about a similarly situated 
patient who did not have a disability, would likely be prohibited 
discrimination under Sec.  84.56. However, the Department believes that 
this conduct is already addressed under Sec.  84.56(a) and other 
sections of Sec.  84.56. Where the treatment being sought is for a 
separate medical symptom or condition, it is prohibited under Sec.  
84.56(b)(2). Such action would likely also be prohibited under Sec.  
84.56(b)(1)(iii), which prohibits discrimination based on a belief that 
the life of a person with a disability has lesser value than the life 
of a person without a disability, or that life with a disability is not 
worth living.

[[Page 40091]]

    Comment: Several commenters requested that the Department clarify 
that Sec.  84.56(b)(1)(i) extends to the denial or limitation of 
medical treatment based on biases and stereotypes regarding particular 
medical treatments for a disability because such biases and stereotypes 
originate with beliefs about a patient's disability.
    Response: The Department agrees that biases and stereotypes 
regarding particular medical treatments can constitute biases and 
stereotypes regarding the disability of the patients that receive them. 
For example, biases and stereotypes regarding antiretroviral therapy 
may constitute discrimination against persons with HIV. Similarly, 
biases and stereotypes regarding Medication Assisted Treatment for 
Opioid Use Disorders could constitute discrimination against persons 
with Opioid Use Disorders.
    Comment: Several commenters requested that the Department add to 
the regulatory text of Sec.  84.56(b)(1) language prohibiting denying 
or limiting medical treatment to a qualified individual with a 
disability based on whether a patient has an advance directive.
    Response: Where a recipient denies medical treatment to persons 
with disabilities because they do not have an advance directive, but 
does not do so for persons without disabilities who do not have an 
advance directive, such a denial or limitation would likely violate the 
general prohibition on discrimination on the basis of disability in 
Sec.  84.56(a) and may also constitute prohibited discrimination under 
Sec.  84.56(c)(2)(ii), which prohibits discrimination against a 
qualified individual with a disability on the basis of disability in 
seeking to obtain consent from an individual or their authorized 
representative for the recipient to provide, withhold, or withdraw 
treatment. We made this point explicitly in several examples in the 
NPRM, where we indicated that a covered hospital may not repeatedly 
request that a patient with a disability (or the patient's legally 
authorized representative) consent to a do-not-resuscitate order, where 
it would not make such repeated requests of a similarly situated 
nondisabled patient. In addition, we noted that a recipient may not 
condition access to treatment on a patient with a disability or their 
authorized representative agreeing to a particular advanced care 
planning decision when they would not implement or enforce such a 
requirement on a similarly situated nondisabled patient. As such, we 
believe the circumstances described by the commenter are already 
prohibited by the regulation and have elected not to modify the 
regulatory text of Sec.  84.56(b)(1).
    Comment: Several commenters asked the Department to clarify that 
prohibited discrimination under Sec.  84.56(b)(1)(i) could emerge both 
from biases and stereotypes regarding a single disability diagnosis 
possessed by the patient or from the interaction of multiple diagnoses 
and perceived complexity of these diagnoses.
    Response: The Department agrees that the phrase ``a patient's 
disability'' under Sec.  84.56(b)(1)(i) describes both biases and 
stereotypes about a single disability diagnosis as well as biases and 
stereotypes about multiple disabilities.
    Comment: Several commenters requested the Department include 
examples of denials or limitations due to fears about one's own health 
due to the treatment of the person with the disability as instances of 
prohibited discrimination under Sec.  84.56(b)(1).
    Response: The Department agrees that unfounded fears about one's 
own health due to the treatment of the person with the disability are 
already prohibited as biases or stereotypes about a patient's 
disability under Sec.  84.56(b)(1)(i). Where such fears have a 
reasonable basis in fact, a recipient would only be permitted to deny 
or limit access to a program or service they offer if they meet the 
threshold for a direct threat articulated under Sec.  84.75 (see that 
section for a more detailed discussion).
    Comment: Several commenters requested the Department clarify that a 
refusal to provide a referral on the basis of disability status, 
including based on the factors articulated in Sec.  84.56(b)(1), could 
constitute prohibited discrimination under Sec.  84.56.
    Response: The Department agrees that a refusal to provide a 
referral to a qualified individual with a disability could constitute 
prohibited discrimination, as such a refusal would be a limitation on 
the medical treatment provided to a qualified individual with a 
disability. The Department previously noted within the NPRM that when a 
provider would typically provide a referral to another provider for 
whom a given treatment is within their scope of practice, a refusal to 
provide such a referral on the basis of disability would likely 
constitute a violation of Sec.  84.56.
    Comment: Several commenters asked the Department to use the term 
``individual'' rather than ``patient'' to clarify the broad application 
of Sec.  84.56, as certain things that the Department has clarified are 
considered medical treatment under Sec.  84.56 generally do not involve 
referring to consumers of services as ``patients.''
    Response: While the Department has elected to retain the current 
regulatory text, we clarify here that the term ``patient'' is intended 
to be interpreted broadly to refer to any individual with a disability 
that seeks to access services included under the definition of medical 
treatment. We use the term ``patient'' and ``individual'' 
interchangeably throughout the final rule.
    Comment: Several commenters requested that the Department clarify 
that the application of Sec.  84.56(b)(1)(iii), which prohibits denying 
or limiting medical treatment to a qualified individual with a 
disability when the denial is based on ``a belief that the life of a 
person with a disability has lesser value than the life of a person 
without a disability, or that life with a disability is not worth 
living,'' includes denials or limitations based on assumptions about a 
person with a disability's quality of life, as that terminology is more 
commonly used by health care providers.
    Response: The Department agrees that treatment denials or 
limitations to qualified individuals with disabilities based on a 
provider's belief that a person with a disability's quality of life is 
such that their life is not worth living due to their disability would 
constitute a violation of Sec.  84.56(b)(1)(iii). We do note, however, 
that people with disabilities retain their right to decline treatment 
for any reason and recipients that do not provide treatment declined by 
the person with a disability are not in violation of this section, 
provided that the acquisition of consent to decline such treatment was 
not acquired in a discriminatory fashion (as we discuss in Sec.  
84.56(c)(2)(ii)).
    Comment: A commenter requested the Department clarify that Sec.  
84.56(b)(1) includes an additional instance of prohibited 
discrimination in the regulatory text, stating that discrimination is 
also prohibited on the basis of a belief that the extra accommodation, 
expense, or time required for treatment related to the individual's 
disability is not justified.
    Response: The example cited by the commenter is covered by the 
existing regulatory text, as Sec.  84.56(b)(1)(ii) clarifies that 
discrimination on the basis of judgments that an individual will be a 
burden on others due to their disability, including, but not limited to 
caregivers, family, or society are prohibited under section 504. 
Denying an extra accommodation, expense, or time required for treatment 
related to a person's disability because of the belief that the 
individual will be a burden to society would be covered as an instance

[[Page 40092]]

of discrimination based on a judgment that an individual will be a 
burden on others due to their disability, as the additional 
accommodation, expense, or time required for treatment related to a 
person's disability constitutes an example of burden on others.
    For example, a recipient that denies surgery to a person with a 
mobility disability that would typically be provided to a person 
without a mobility disability based on a belief that the additional 
expense required to accommodate a person with such a disability in 
ongoing medical treatment after their surgery would constitute a burden 
on the medical system as a whole would likely be in violation of Sec.  
84.56(b)(1)(ii). Similarly, the Department has previously indicated 
within the NPRM that Sec.  84.56(b)(1)(ii) would be violated if an 
individual with a disability needed a medically indicated surgical 
procedure but it was denied because of a recipient's judgment that the 
postoperative care the patient would need after the surgery because of 
the patient's disability would be an unfair burden on the individual's 
caregivers, family, or society.
    Comment: Several commenters requested that the Department clarify 
that denials or limitations of medical treatment that are seemingly 
based on nondiscriminatory rationales, but where evidence demonstrates 
they are actually motivated by discriminatory rationales, are 
prohibited under Sec.  84.56.
    Response: Proving the discriminatory intent of a recipient where a 
recipient offers a nondiscriminatory rationale is a fact-dependent 
proposition and requires nuanced judgment. Where a recipient offers a 
nondiscriminatory rationale for denying medical treatment, but that 
rationale is inconsistent with the evidence in the specific case, it 
may constitute discrimination under Sec.  84.56.
    Comment: Many commenters asked the Department to clarify that the 
prohibitions listed under Sec.  84.56(b), including Sec.  84.56(b)(1), 
are not exhaustive and that other instances of prohibited 
discrimination are encompassed under Sec.  84.56(a).
    Response: The Department agrees that the prohibitions listed under 
Sec.  84.56(b), including Sec.  84.56(b)(1), are not exhaustive and 
that other instances of prohibited discrimination are encompassed under 
Sec.  84.56(a).
Separately Diagnosable Symptom or Medical Condition
    As indicated within the NPRM, in order to align with what we 
believe to be the correct reading of the statute and the case law, the 
Department adopted distinct standards for circumstances under which a 
qualified person with a disability is denied medical treatment for the 
disability that triggers coverage under section 504 (referred to as an 
``underlying disability'') or for a separately diagnosable symptom or 
condition for which the patient seeks treatment. As the general 
prohibition against discrimination against people with disabilities 
seeking medical treatment in Sec.  84.56(a) applies broadly to both 
such instances, we provide specific examples of some of the instances 
of prohibited discrimination that do not require a separately 
diagnosable symptom or condition in Sec.  84.56(b)(1), including biases 
or stereotypes about a patient's disability, judgments that the 
individual will be a burden on others due to their disability, and a 
belief that the life of a person with a disability has lesser value or 
that life with a disability is not worth living. While this is not an 
exhaustive list, we believe it provides a useful illustration of the 
types of discrimination that are prohibited regardless of whether a 
person with a disability is seeking medical treatment for the 
underlying disability that triggers coverage under section 504 or for a 
separately diagnosable symptom or condition.
    In Sec.  84.56(b)(2), the Department prohibits denying or limiting 
clinically appropriate treatment for a separately diagnosable symptom 
or medical condition (whether or not that symptom or condition is a 
disability under this part or is causally connected to the individual's 
underlying disability) if it would be offered to a similarly situated 
individual without an underlying disability. Examples of circumstances 
in which such denials could occur include when a person with Down 
syndrome might seek a heart transplant to address a heart condition; a 
person with spinal muscular atrophy might seek treatment for a severe 
case of COVID-19; or a person with a spinal cord injury might seek 
treatment for depression with suicidal ideation.
    Instances of discrimination against people with disabilities in 
medical treatment contexts may violate multiple paragraphs of Sec.  
84.56, including paragraphs (b)(1) and (2). For example, should a 
recipient deny a referral for a medically indicated heart transplant to 
a patient with a mental health condition because of a biased belief 
that persons with mental health disabilities represent a danger to 
society and should thus not be permitted to access scarce medical 
resources, this would likely constitute a violation of both provisions. 
Because the recipient has denied access to medically indicated 
treatment based on biases or stereotypes about a patient's disability, 
they have likely violated Sec.  84.56(b)(1), and because this treatment 
was for a separately diagnosable symptom or medical condition and would 
have been provided to a similarly situated person without 
schizophrenia, it likely constitutes a violation of Sec.  84.56(b)(2).
    The Department solicited comments on the distinction between a 
separately diagnosable symptom or condition and the underlying 
disability, noting that this line may be more difficult to draw than in 
these examples, and welcomed comment on the best way to clarify this 
distinction. Commenters expressed a variety of perspectives on this 
distinction.
    Some commenters questioned the choice to have two provisions both 
relating to the denial of medical treatment, suggesting that doing so 
could create unnecessary challenges for recipients and people with 
disabilities. Some commenters argued that attempts to distinguish 
between treatment for an underlying disability as opposed to for a 
separate condition is not the best or appropriate means of eliminating 
discrimination because a symptom or condition may not always be readily 
distinguishable from the underlying condition, particularly for persons 
with complex medical conditions that interact with each other and who 
are receiving medical treatment that is responsive to multiple 
different diagnoses, symptoms, or conditions. They suggested that the 
Department either avoid making this distinction or clarify it through 
future sub-regulatory guidance. Similarly, some commenters pointed out 
that separately diagnosable symptoms or medical conditions are not 
always readily distinguishable from underlying conditions. They 
expressed concern that disentangling different diagnoses from one 
another is at times impossible and often inadvisable, as the 
distinction between different diagnoses is often blurred in the 
clinical context and within the experiences of people with 
disabilities. Some felt that having two standards could lead to 
confusion and perhaps unnecessary litigation. Other commenters felt 
that the distinction made by the Department was appropriate and 
workable in order to both comply with applicable case law and protect 
people with disabilities from discrimination on the basis of disability 
in medical treatment. These commenters indicated that they did not 
believe that further efforts to distinguish between or define the 
different circumstances articulated between paragraphs (b)(1) and (2) 
of Sec.  84.56 were necessary or useful.

[[Page 40093]]

    Independent of their views on the distinction drawn by the 
Department in Sec.  84.56(b)(2), many commenters provided examples of 
situations where individuals with underlying disabilities were denied 
treatment for separately diagnosable symptoms or conditions. They 
described denials of all types of treatment to individuals with mental 
health disorders, noting that some drug and alcohol treatment centers 
have a blanket policy of denying admission to individuals with mental 
health disabilities as well as to individuals with developmental 
disabilities. They also pointed to mental health facilities that 
routinely deny treatment to individuals with substance use disorders. 
Other examples included denial of routine eye exams, colonoscopies, 
braces and other dental services, mental health treatment, and surgical 
services to individuals with developmental disabilities, including 
intellectual disability and autistic persons. One individual described 
the failure of physicians to perform hip dysplasia surgery on her 
brother who had Down syndrome. Another described her child being 
refused treatment for a broken bone because he had cerebral palsy. 
Others described the denial of preventative screening for sexually 
transmitted diseases, the failure to provide information on 
reproductive health options, and the failure to provide care for life 
threatening diseases on the basis of disability.
    Response: After careful consideration, the Department has elected 
to maintain the distinction between paragraphs (b)(1) and (2) Sec.  
84.56, recognizing that applicable case law is most appropriately 
interpreted as requiring a different legal standard for circumstances 
where a person with a disability is seeking treatment for their 
underlying disability as compared to when they seek treatment for a 
separately diagnosable symptom or condition.\52\
---------------------------------------------------------------------------

    \52\ The NPRM included a discussion of the case law concerning 
medical treatment decisions when the medical treatment may have been 
associated with the patient's disabling condition. See 88 FR 63403 
(Sept. 14, 2023).
---------------------------------------------------------------------------

    The Department notes and appreciates the concerns raised by 
commenters who argue that distinguishing between an underlying 
disability and a separate symptom or medical condition may be very 
difficult for persons with complex medical conditions that interact 
with each other and who are receiving medical treatment that is 
responsive to multiple different diagnoses, symptoms or conditions. As 
such, we wish to clarify that the definition of a separately 
diagnosable symptom or condition should be interpreted in a broad and 
inclusive fashion. Patients who are receiving medical treatment that is 
at least in part due to a separately diagnosable symptom or condition 
qualify for the protections of Sec.  84.56(b)(2), even if their medical 
treatment is also responsive to their underlying disability. For 
instance, a patient with both opioid use disorder and depression who 
seeks mental health treatment may seek counseling from a provider that 
will take into account both of these diagnoses. Should the provider 
discriminate against this patient as a result of their diagnosis of 
opioid use disorder, this would implicate the protections of Sec.  
84.56(b)(2) as depression constitutes a separately diagnosable symptom 
or condition, despite the fact that the treatment sought would likely 
have taken into account and sought to treat both of the patient's 
diagnoses.
    We reiterate that this provision does not require the separately 
diagnosable symptom or medical condition to be entirely unrelated to 
the underlying disability; it is instead intended to reach 
circumstances in which the condition for which medical treatment is 
sought is sufficiently distinct from the underlying disability such 
that the person with the disability can be considered similarly 
situated to a person without the disability for treatment purposes. For 
example, that a separately diagnosable heart condition is related to an 
underlying disability in some manner is irrelevant under the proposed 
rule if the underlying disability makes no difference to the clinically 
appropriate treatment for the heart condition. This approach is 
consistent with the mandate that persons with disabilities be accorded 
equal treatment under section 504. Similarly, a symptom or condition 
that arises from a common underlying biological mechanism as a 
patient's underlying disability, such as Kaposi's sarcoma in a person 
with AIDS, is a separately diagnosable symptom or condition for the 
purposes of this section. As we indicated within the NPRM, it does not 
matter for these purposes whether the condition for which the 
individual is seeking treatment is in some sense causally related to 
the underlying disability if the decision to refuse treatment would not 
be made as to similarly situated individuals without the disability. 
Individuals with Down syndrome are more likely to experience heart 
conditions, and a spinal cord injury may be the event that triggers an 
individual's depression. But a refusal to treat a heart condition 
because the patient has the underlying disability of Down syndrome, or 
a refusal to treat depression because of a patient's underlying spinal 
cord injury, will likely violate this paragraph if treatment would be 
provided to a similarly situated person without an underlying 
disability.
    We note also that it does not matter whether the symptom or 
condition for which the individual is seeking treatment is also a 
disability under section 504. Individuals with heart conditions, COVID-
19, and depression could all meet the definition of an individual with 
a disability on the basis of these conditions in appropriate 
circumstances, but it is people who experience discriminatory treatment 
for these conditions based on an underlying disability who are entitled 
to the protections of Sec.  84.56(b)(2).
    Comment: Some commenters expressed that the prohibition against 
denying a person with a disability treatment for a separate symptom or 
condition does not adequately consider the complexity of caring for 
someone living with disability who also has multiple chronic conditions 
or from tailoring treatment plans to align to the patient's wishes in 
the interests of avoiding unnecessary suffering. One commenter put 
forward the example of someone who has diabetes, kidney disease, AFib, 
and osteoarthritis that has led to their using a walker or other 
assistive device who suffers from kidney failure. They indicate their 
view that ``the appropriate first step would be to engage in 
discussions about what matters to the individual and their overall 
prognosis based on the totality of their disease burden. In instances 
where they lack capacity and there is no proxy, the case should be 
referred to an Ethics Committee or other decision-making body as 
organized by the health system where the patient is receiving care.'' 
Another commenter also expressed concern regarding patients who are 
incapacitated and lack advance directives. A pharmaceutical industry 
group requested that the Department provide additional guidance as to 
the definition of ``similarly situated'' in Sec.  84.56(b)(2). They ask 
that the Department clarify if an individual would be considered 
``similarly situated'' to another individual with the same symptom or 
condition if treatment for that symptom or condition is not clinically 
appropriate for individuals with a certain disability or a symptom or 
condition that is causally connected to that disability.
    Response: Determining whether a denial of treatment would 
constitute a violation of Sec.  84.56(b)(2) is a fact

[[Page 40094]]

specific, individualized inquiry. Section 84.56(c)(1) indicates that 
nothing in this section requires the provision of medical treatment 
where the recipient has a legitimate, nondiscriminatory reason for 
denying or limiting that service or where the disability renders the 
individual not qualified for the treatment. For example, a recipient 
may take into account a patient's underlying disability to deny a 
medical treatment based on their judgment that the treatment would not 
be effective at accomplishing its intended effect or because an 
alternative course of treatment to the one that would typically be 
provided to patients without disabilities would be more likely to be 
successful in light of a patient's disability. However, this section 
also makes clear that the criteria articulated in Sec.  84.56(b)(1), 
including a judgment that a patient's life with a disability is not 
worth living, is not a legitimate nondiscriminatory reason for denying 
or limiting treatment and cannot render a person with a disability not 
qualified for treatment.
    As discussed elsewhere within this section, determinations that an 
individual with a disability's life is not worth living because of the 
need for ongoing support rest on judgments that do not properly relate 
to the individual's qualification for medical treatment under section 
504. Similarly, an individual cannot be deemed not similarly situated 
because they require ongoing support during or after treatment that 
another individual does not need. Qualification for the service of 
life-sustaining treatment must be based on whether the treatment would 
be effective for the medical condition it would be treating, not 
broader societal judgments as to the relative value of a person's life 
due to their disability or whether life with a disability is worth 
living. In the example cited by the commenter, while the patient or 
their authorized representative may make a decision to decline 
treatment, a decision by the recipient--including where such a decision 
is made via an Ethics Committee--to deny medically indicated treatment 
based on the patient's disabilities of diabetes, kidney disease, AFib, 
and osteoarthritis or their use of assistive technology would likely 
constitute discrimination on the basis of disability if it was 
motivated based on a belief that continued life would not be of benefit 
to the patient due to their disabilities (i.e., that life with their 
disability is not worth living).
    In contrast, should a decision be made to deny treatment due to a 
patient's expressed wishes or those of their authorized representative, 
this would likely not constitute discrimination, provided that the 
recipient has not discriminated on the basis of disability in seeking 
consent to decline further treatment. Similarly, a decision to deny 
treatment because it would not be medically effective at prolonging the 
patient's life would not be in violation of this section, even if it 
was sought after by the patient or their authorized representative, as 
a patient for whom a treatment would not be medically effective is not 
similarly situated to a patient for whom a treatment would be medically 
effective.
    Comments: Many commenters raised the issue of diagnostic 
overshadowing, in which physicians and other health care professionals 
attribute medical problems to a patient's underlying disability when 
they actually relate to a separate medical condition, resulting in 
underdiagnosis and a failure to diagnose or appropriately treat the 
separate condition. They ask the Department to clarify that diagnostic 
overshadowing can constitute a violation of Sec.  84.56(b)(2) or other 
parts of Sec.  84.56 when recipients depart from the standard of care 
by attributing all problems or symptoms of a patient with a disability 
to one diagnosis.
    Response: Departures from the standard of care by attributing all 
problems or symptoms experienced by a patient with a disability to a 
single diagnosis could constitute discrimination under Sec.  
84.56(b)(2) under some circumstances. In the event that such diagnostic 
overshadowing is the result of biases and stereotypes, it could also 
violate Sec.  84.56(b)(1)(i). Determining whether any individual 
instance rises to the level of discrimination is fact-dependent and 
will depend on the specific circumstances of a provider's behavior and 
the information available to them.
    Comments: Many commenters described medical care providers, in 
particular mental health treatment providers, who refuse to serve 
patients with disabilities with comorbidities. They offer as an example 
drug and alcohol treatment centers that deny services to individuals 
with mental illness and mental illness providers that refuse to serve 
those with a history of drug or alcohol use disorders. The commenters 
ask for clarification if this might constitute discrimination under 
Sec.  84.56(b)(2).
    Response: A blanket prohibition on serving persons with co-
occurring disabilities may constitute a violation of Sec.  84.56(b)(2). 
Recipients should generally seek to ascertain whether patients with co-
occurring disabilities are qualified for the purposes of the program or 
service in question through an individualized determination. 
Determining whether any specific policy or denial rises to the level of 
discrimination is fact-dependent and will depend on the specific 
circumstances of a provider's policies and behavior.
Provision of Medical Treatment
    Section 84.56(b)(3) proposed to address the discriminatory 
provision of medical treatment. It states that if a medical 
professional provides an individual with a disability different 
treatment than the professional would provide an individual without a 
disability seeking assistance with the same condition--and there is 
nothing about the disability that impairs the effectiveness, or ease of 
administration of the treatment itself or has a medical effect on the 
condition to which the treatment is directed--then Sec.  84.56(b)(3) 
has been violated. For example, if a woman with an intellectual 
disability seeks a prescription for contraception but her provider, due 
to a belief that any children she may have are likely to have an 
intellectual disability, offers only surgical sterilization, the 
recipient has likely violated Sec.  84.56(b)(3) if the provider 
prescribes contraception for her other patients without disabilities. 
However, Sec.  84.56(b)(3) does not prohibit a recipient from providing 
an individual with an underlying disability services or equipment that 
are different than that provided to others with the same condition when 
necessary to provide an effective service or treatment to the 
individual with a disability. Where, for example, an individual 
recovering from a foot or leg injury or surgery has an anatomical loss 
of an arm and is unable to use crutches as a result, it would likely 
not violate Sec.  84.56(b)(3) to recommend or prescribe a knee scooter 
to the patient even though the recipient recommends crutches to most 
patients in this situation.
    Similarly, where an underlying disability would interfere with the 
efficacy of a particular treatment, a recipient could provide a person 
with that disability a different treatment than it would provide to 
similarly situated nondisabled individuals. For example, an underlying 
health condition that itself is a disability might require an 
individual to take a medication that is contraindicated with a 
particularly effective antiviral drug. If that individual contracts 
COVID-19, it would likely not violate this section for a recipient to 
offer a different treatment than the contraindicated antiviral drug, 
even if it is generally less effective. Because the underlying 
disability would

[[Page 40095]]

directly inhibit the utility of the generally more effective drug, the 
individual would likely not be qualified for that treatment under this 
part.
    Comments: A group of commenters representing persons with 
disabilities and various civil rights groups said that our example of 
involuntary sterilization is too narrow. They suggested that the 
Department make clear that the prohibition in Sec.  84.56(b)(3) extends 
to any procedures whose expected and actual effect is sterilization. 
They recommended including situations where individuals with 
disabilities are pressured to use contraceptives, particularly long-
acting forms, that they do not want. A significant number of commenters 
said that individuals with disabilities must be offered comprehensive 
and non-coercive contraceptive counseling about all contraceptive 
options, consistent with that which is offered to individuals without 
disabilities. These commenters recommended that individuals with 
disabilities also be offered comprehensive and non-coercive access to 
assistive reproductive technology and other fertility treatments. Many 
commenters said that individuals with disabilities must be able to 
decide if when or how to become parents.
    Multiple commenters raised questions regarding the application of 
Sec.  84.56 to reproductive health services. Many commenters described 
experiences of discrimination in accessing reproductive health care, 
both through the denial of treatment and through the provision of or 
pressure to accept inappropriate or unwanted treatment on the basis of 
disability. Many commenters indicated greater difficulty getting access 
to screening for sexually transmitted infections, mammograms, and other 
necessary preventative health screenings relating to reproductive 
health as a result of their disabilities. Other commenters reported 
pressure to accept sterilization or abortion as a result of their 
disabilities.
    Response: The Department agrees that the listed examples could 
constitute violations of Sec.  84.56(b)(3). For instance, requiring a 
patient with an intellectual disability to accept long-acting 
contraception, sterilization, or abortion as a result of their 
disability would likely constitute a violation of Sec.  84.56(b)(3), if 
such a requirement would not be imposed on patients without 
disabilities. The Department notes that the discriminatory denial of 
these same treatments on the basis of a patient's disability could 
constitute a denial of Sec.  84.56(b)(2), reinforcing the importance of 
understanding the preferences of patients with disabilities and being 
responsive to them, consistent with established norms for patient care 
for patients without disabilities. As discussed elsewhere, the 
Department's investigations of specific complaints regarding violations 
of Sec.  84.56 will be fact-dependent.
    We agree that Sec.  84.56(b)(3) would likely be violated when a 
procedure has an expected and actual effect of sterilization and the 
circumstances otherwise fit the language of paragraph (b)(3). This 
could include pressuring individuals to use unwanted contraception, 
particularly long-acting forms of contraception, which would also 
likely represent a violation of the broad based prohibition against 
discrimination articulated in Sec.  84.56(a).
    Failure to provide comprehensive information about and access to 
all forms of contraception and failure to provide comprehensive 
information and access to assistive reproduction technology and other 
treatments related to infertility to qualified persons with 
disabilities by a recipient that provides such treatment would likely 
violate Sec.  84.56(a) or (b)(2) if the recipient provides or would 
provide the same information and access to an individual without a 
disability. Denial or limitation of treatment or accompanying 
comprehensive information (which we consider to be part of the broad 
service of medical treatment) based on disability by a recipient that 
provides such treatment would likely constitute a violation of the 
general nondiscrimination in medical treatment requirement in Sec.  
84.56(a) as well as Sec.  84.56(b)(2) which prohibits denials or 
limitations of treatment for a symptom or condition such as infertility 
that is separately diagnosable from the underlying disability 
motivating different treatment. For example, should a patient with an 
intellectual disability not be informed of the availability of 
infertility treatment when such information would be provided to a 
patient without an intellectual disability seeking treatment for 
infertility, this may constitute a violation of these provisions. We 
note that some of the described actions may also be a violation of the 
prohibition against sex discrimination contained in section 1557.\53\
---------------------------------------------------------------------------

    \53\ 42 U.S.C. 18116(a) (prohibiting discrimination on the basis 
of sex, among other grounds, in health programs or activities that 
receive Federal financial assistance, programs or activities 
administered by an Executive Agency or any entity established under 
title I of the Affordable Care Act).
---------------------------------------------------------------------------

    We note that there may be instances where medical interventions 
which have the effect of sterilization may be medically necessary. 
Under such circumstances, the provision of a medical intervention that 
has the effect of sterilization to a person with a disability could 
nonetheless constitute a violation of this section if the patient with 
a disability has not provided informed consent to the procedure, as 
informed consent requirements would be applied and abided by for 
similarly situated patients without disabilities.
Other Laws
    Comments: Several commenters asked that we state clearly that 
Federal laws and regulations supersede State laws including those 
allowing forced sterilization. They asked that the Department affirm 
that State laws such as those do not provide a defense to a recipient 
who has otherwise violated this provision or any other part of section 
504.
    Response: The Department agrees that compliance with State law does 
not necessarily provide a defense to a recipient that has violated 
Sec.  84.56 or any other part of section 504. With regard to the 
commenters who asked us to state that Federal laws always supersede 
State laws, including those that sanction forced sterilization, we note 
that section 504, as implemented in Sec.  84.3, Relationship to Other 
Laws, applies standard principles of preemption. Any analysis of a 
conflict between Sec.  84.56, the medical treatment section of this 
regulation, and State laws permitting sterilization will depend on an 
analysis of the specific State law. It is not therefore possible to 
make a blanket statement describing circumstances in which section 504 
would preempt State law.
Examples of Discriminatory Treatment
    Comments: Another example of discriminatory treatment offered by 
many disability rights organizations is the overprescribing of anti-
psychotic medication to individuals with developmental disabilities for 
purposes of chemical restraint rather than because of a well-supported 
reason to believe the medication is likely to have a therapeutic effect 
on mental health. Other disability organizations offered the example of 
the inappropriate provision of involuntary mental health treatment as a 
potential instance of the discriminatory provision of treatment.
    Some commenters offered as an example of a violation of Sec.  
84.56(b)(3) the use of aversive interventions, such as electric 
stimulation devices (ESD) for behavior modification. They noted that 
this intervention is not imposed on people without disabilities and 
would be considered illegal and unethical. Other commenters pointed to

[[Page 40096]]

unnecessary surgery being performed on people with disabilities.
    Response: The Department agrees that the examples described above 
could constitute discriminatory provision of medical treatment under 
Sec.  84.56(b)(3). For instance, the use of an intervention that seeks 
to modify behavior through the application of pain or other noxious 
stimuli, if not applied to people without disabilities, would likely 
violate Sec.  84.56(b)(3), as it likely represents an instance of, on 
the basis of disability, providing medical treatment to an individual 
with a disability where a recipient would not provide the same 
treatment to an individual without a disability and where the 
disability does not impact the effectiveness, ease of administration, 
or have a medical effect on the condition to which the treatment is 
administered. As discussed elsewhere, the Department's investigations 
of specific complaints regarding violations of Sec.  84.56 will be 
fact-dependent.
Informed Consent
    Comments: Several commenters emphasized the importance of obtaining 
informed consent to any of these treatments, particularly those 
described above, from individuals with disabilities. They asked that we 
emphasize that consent procedures are always subject to a section 504 
nondiscrimination analysis. Many said that requirements for informed 
consent could be improved if the reasonable modifications requirements 
are cross-referenced in this section.
    Response: The Department notes that informed consent is essential. 
Cross-referencing the reasonable modification provision in particular 
sections is not necessary as it is a general requirement and already 
applies to all medical treatments and would apply to the informed 
consent process.
Individualized Judgment
    Comments: Multiple commenters requested the Department specifically 
clarify that individualized judgment, rather than categorical judgments 
solely on the basis of a diagnosis, is necessary in evaluating whether 
a patient with a disability is qualified for a particular medical 
treatment. A request for clarifying the role of individualized judgment 
was made by both professional associations, which requested the 
Department ensure that clinical expertise and professional judgment was 
permitted to be used in individualized recommendations to patients, and 
organizations representing people with disabilities, which indicated 
that individualized judgment should be used in determining whether a 
person with a disability is not qualified for treatment.
    Response: The Department agrees that it is important for providers 
to use individualized judgment when evaluating whether a person with a 
disability is qualified to receive a particular medical treatment and 
when communicating with people with disabilities about the implications 
of the different treatment options available to them. While we have not 
modified the regulatory text, we agree that individualized assessment 
will generally be required when evaluating whether a disability renders 
an individual not qualified for treatment or whether another legitimate 
nondiscriminatory reason exists to deny a particular treatment to a 
person with a disability. Categorical judgments based on the presence 
of a specific diagnosis that do not entail an individualized assessment 
may violate Sec.  84.56.
    However, recipients are nonetheless permitted to consider the 
standard of care and applicable medical evidence in forming their 
judgments of whether treatment is necessary or appropriate for 
individual patients. In the vast majority of circumstances, where 
medically indicated care depends on the specific clinical circumstances 
of the patient seeking treatment, recipients must engage in an 
individualized inquiry when determining eligibility for treatment. For 
example, a recipient that engages in a categorical judgment that all 
patients with a prior history of substance use disorders are not 
qualified to receive medications for pain management would likely 
discriminate against persons with a record of a substance use disorder 
under Sec.  84.56(b)(1)(i) if their denial with respect to a specific 
patient was based on such a categorical judgment rather than 
individualized assessment of the specific patient seeking pain 
management. Such a categorical judgment would not be protected under 
the professional judgment in treatment provision in Sec.  84.56(c).
Other Issues Raised by Commenters
    Comment: Some commenters asked the Department to carefully review 
the regulatory text to ensure that the language was as clear as 
possible to a broader audience.
    Response: In response to this feedback, the Department has made 
non-substantive edits to Sec.  84.56(c)(1)(ii) to improve clarity of 
language. Revised paragraph (c)(1)(ii) provides circumstances when 
medical treatment is not required, including when a recipient has a 
legitimate, nondiscriminatory reason for denying or limiting service or 
where the disability renders the individual not qualified for the 
treatment. We do not believe this changes the substantive meaning of 
the section from the NPRM, but have made the change in order to improve 
clarity of language.
    Comment: Some commenters asked the Department to clarify that the 
criteria in Sec.  84.56(b)(1)(i) through (iii) are not an exhaustive 
list of the circumstances that would be considered discriminatory 
reasons for denying or limiting medical treatment or determining that 
an individual is not qualified for treatment.
    Response: As the Department previously indicated within the NPRM, 
the list of criteria in Sec.  84.56(b)(1)(i) through (iii) is not an 
exhaustive list.
    Comment: One provider group asked the Department to indicate 
whether the decision to place a feeding tube in an individual with 
advanced dementia instead of hand feeding could include considering the 
individual's prognosis and whether the potential benefit of a feeding 
tube outweighs the harms.
    Response: Whether providing or denying any type of medical 
treatment to patients with disabilities when the provider would not do 
the same for patients without disabilities is discriminatory depends on 
the facts and context of the specific case and is beyond the ability of 
the Department to address in the abstract. Factors that may be relevant 
in the feeding tube decision, include: the wishes of a patient or their 
authorized representative, the inability of a patient to express their 
preference in the absence of an authorized representative, and a 
recipient's choice to avoid the use of physical restraints and/or the 
denial of the gratification of tasting preferred foods. In contrast, 
should the recipient opt to decline to place a feeding tube because 
they believe that continued life would not be of benefit to the patient 
with advanced dementia, this could violate Sec.  84.56(b)(1)(iii) and 
(b)(2).
    Comment: A commenter expressed concern with language under Sec.  
84.56(c)(1)(ii) indicating that a recipient is not obligated to provide 
a service if the recipient reasonably determines based on current 
medical knowledge or the best available objective evidence that such 
medical treatment is not clinically appropriate for a particular 
individual. They express concern that the phrase ``best available 
objective evidence'' may be too subjective, as ``even experts may 
differ on the exact rank of certain information in a clinical evidence 
hierarchy or even

[[Page 40097]]

on the hierarchy itself.'' They ask that the Department modify this 
language to instead indicate that ``a preponderance of evidence support 
the determination regarding what is or is not clinically appropriate.''
    Response: After consideration, the Department has elected to 
maintain the current regulatory text. While experts may differ on the 
relative strength of clinical evidence, it is incumbent upon each 
recipient to make use of the best available objective evidence within 
the context of their discipline, recognizing that in many instances a 
mixed clinical literature will result in different clinicians arriving 
at different decisions. Differences among experts or between studies 
may be relevant to whether a particular medical treatment decision is 
discriminatory. In such instances, the Department will consider whether 
a recipient's actions are consistent with the existing evidence base.
    Comment: A medical organization requested that the Department 
clarify that if the clinical literature shows that the therapy is less 
effective for individuals with a characteristic or marker associated 
with a certain disability and as a result is not recommended for such 
individuals under clinical guidelines, it would not be discriminatory 
to limit coverage to those individuals who do not have the 
characteristic or marker.
    Response: Information on efficacy and effectiveness in the clinical 
literature is relevant in assessing whether the provision of a drug or 
decision not to provide to a person with a disability is 
discriminatory. The specific application of Sec.  84.56 may depend on a 
variety of factors, such as the relative strength of the evidence in 
the clinical literature, whether the evidence indicates a drug is 
ineffective for a particular subpopulation of patients with 
disabilities or merely less effective, and the standards the recipient 
applies for the provision of medical treatment to patients without the 
disability in question.
    Comments: Several commenters asked the Department to modify Sec.  
84.56(c)(1)(ii) to clarify that the criteria in Sec.  84.56(b)(1)(i) 
through (iii) may not be used as the basis for determining that an 
alternative course of treatment would be more likely to be successful.
    Response: The Department has indicated that the criteria in Sec.  
84.56(b)(1)(i) through (iii) may not be used to determine that a 
treatment is not clinically appropriate for a particular individual. 
The determination of clinical appropriateness includes whether a 
treatment would be more likely to be successful than other treatments, 
and thus the circumstances described by the commenters is already 
incorporated in the existing text. We have elected not to modify the 
regulatory text.
Delays in Care Due to Difficulty in Locating an Interpreter
    Comment: One commenter specifically asked the Department to clarify 
that delays or rescheduling of care due to a recipient's inability to 
locate a Certified Deaf Interpreter would not constitute a violation of 
Sec.  84.56.
    Response: The Department cannot provide categorical responses to 
issues that are dependent on facts. Relevant facts may include whether 
the patient's medical care is promptly rescheduled, the impact of the 
delay on the patient's receipt of effective medical care, whether the 
recipient's methods of administration (including rate of pay to 
interpreters) may be causing an unnecessary delay in accessing a 
Certified Deaf Interpreter, and whether the patient has received the 
option of receiving care using another means of effective communication 
that meets their needs.
    Comment: A commenter requested that the Department replace the 
phrase ``where the disability renders the individual not qualified for 
treatment'' with the phrase ``when a patient's disability may pose a 
legitimate medical contraindication for the treatment under 
consideration.''
    Response: The reference to whether a person with a disability is 
``qualified'' for treatment reflects the statutory language of section 
504. As a result, we will maintain the regulatory text as proposed.
    Comments: Several commenters asked the Department to clarify that 
recipients may not mischaracterize the services that they ordinarily 
provide in their scope of practice to evade anti-discrimination 
protections. A commenter also asked us to clarify that a recipient may 
be required to provide a service that it does not ordinarily offer as a 
reasonable modification for a qualified individual with a disability.
    Response: The Department agrees that recipients may not manipulate 
their scope of practice as a pretext for discrimination against people 
with disabilities. For example, recipients may not define their scope 
of practice to preclude the provision of medical treatment offered to 
other patients to patients with disabilities. For example, an OB-GYN 
who indicates that their scope of practice excludes the provision of 
mammograms to women with Down syndrome, as they do not have requisite 
expertise in developmental disability, would likely be in violation of 
Sec.  84.56. In addition, the OB-GYN may be obligated to make 
reasonable modifications consistent with Sec.  84.68(b)(7) for a 
patient with Down syndrome in order to make a mammogram accessible, 
including providing additional time to explain the procedure, manage 
sensory sensitivities, or communicate with a designated supporter for 
purposes of supported decision-making.
    Similarly, recipients who define their scope of practice to exclude 
the provision of medical services associated with a specific disability 
that are typically offered by comparable colleagues may be in violation 
of Sec.  84.56. For example, a pharmacist who indicates that the 
filling of prescriptions for antiretroviral therapy for patients with 
HIV is outside their scope of practice when similar pharmacies do fill 
such prescriptions and there is no nondiscriminatory rationale for why 
filling such prescriptions would be outside their area of expertise and 
ability would likely be in violation of Sec.  84.56.
Consent
    Comments: Commenters asked the Department to provide additional 
examples regarding how discussions about limiting treatment would and 
would not be consistent with Sec.  84.56(c)(3). One commenter 
specifically raised older adults with multiple chronic conditions who 
are on multiple drugs, some of which may interact in ways that harm the 
person, noting that review of the patient's medications will often 
result in discontinuation of certain drugs and/or changing drugs in 
order to cause less harm. Another commenter raised an example under 
which a child is born with genetic condition resulting in cognitive 
impairment and a provider erroneously informs the family that patients 
with that condition never live to adulthood in order to convince them 
to withhold life-sustaining treatment, motivated by a belief that 
persons with cognitive impairment constitute a burden to others.
    Response: Section 84.56(c)(3) addresses the information exchange 
between the recipient and the patient with a disability concerning 
potential courses of treatment and their implications, including the 
option of forgoing treatment. This provision indicates that nothing in 
this section precludes a provider from providing an individual with a 
disability or their authorized representative with information on the 
implications of different courses of treatment based on

[[Page 40098]]

current medical knowledge or the best available objective evidence. The 
Department interprets this as including the provider's own experiences 
with treatment options for any particular medical intervention. The 
ability of a person with a disability or their authorized 
representative to understand the available options and to make an 
informed decision about the medical treatment depends in part on the 
expertise and candor of the treating professionals. However, the 
Department intends that the result of reading Sec.  84.56(a) and 
(c)(2)(ii) together is that the recipient is prohibited from 
discriminating on the basis of disability in seeking consent for the 
decision to treat or to forgo treatment by, for example, unduly 
pressuring a person with a disability or their authorized 
representative to conform to the treating professional's position or by 
relying on the prohibited factors listed in Sec.  84.56(b)(1)(i) 
through (iii). Consistent with the request of the commenters, we offer 
several illustrative examples below of circumstances where a recipient 
would likely be in compliance with or in violation of Sec.  84.56, 
taking into account Sec.  84.56(c)(3) and its interaction with Sec.  
84.56(c)(2)(ii).
    A person with Type II Diabetes is diagnosed with Chronic 
Obstructive Pulmonary Disease. Their physician notes that medications 
for each of these conditions frequently interact, and discusses with 
the patient the need to change the drugs they are currently taking or 
offer different drugs than would typically be provided for their new 
diagnosis, in order to avoid unintended side effects or other 
complications from drug interactions. Such discussion is generally 
consistent with Sec.  84.56(c)(3). Similarly, discontinuing, changing, 
or offering different medications to such a patient in order to address 
side effects or complications from drug interactions would generally 
not present any conflict with other parts of Sec.  84.56.
    A person with advanced dementia is diagnosed with cancer. Their 
physician reviews their expected prognosis and concludes that 
chemotherapy would only extend their life for a brief period and would 
come with significant unpleasant side effects. They discuss with the 
patient or their authorized representative the implications of 
different courses of treatment, including whether treating the cancer 
is inconsistent with their preferences in light of anticipated 
complications. This is generally consistent with Sec.  84.56(c)(3). In 
addition, the physician informing the patient of anticipated side 
effects from treatment and the patient choosing to decline further 
life-sustaining treatment based on the patient's belief that extending 
their life would not be of benefit to them is generally not in 
violation of Sec.  84.56(c)(2)(ii).
    In contrast, when a physician pressures the patient or their 
authorized representative to choose to decline life-sustaining 
treatment as a result of the patient's disability, such behavior is 
likely inconsistent with Sec.  84.56(c)(2)(ii). If this is motivated by 
a belief that life with the patient's disability is not worth living or 
a belief that the patient's medical costs will be a burden on society, 
this would likely be a violation of Sec.  84.56(b)(1).
    Comments: Many organizations representing individuals with 
disabilities commented on Sec.  84.56(c)(3). Some commenters noted 
that, as written, the paragraph focuses on the actions of the recipient 
when it says that nothing prohibits a recipient from providing 
information about all treatment options. One commenter suggested that 
the paragraph be rewritten to focus on the right of individuals with 
disabilities to obtain complete information about treatment options. 
Almost all of the comments received by the Department discussed this 
right of individuals with disabilities to obtain complete information 
about treatment options.
    A significant number of commenters said that without an open and 
candid discussion of all options, an individual is not able to give 
informed consent to treatments. Many noted that sometimes all options 
are not discussed because the provider has made assumptions about which 
options they think are best and, accordingly, they only provide 
information about those options. A professional medical organization 
stressed the importance of making patients aware of all possible 
options including risks and potential complications. After making 
individuals aware of all possible options and the risks associated with 
each, the provider and the individual with disabilities should jointly 
come to a decision about which course of treatment will yield the best 
outcome. Another organization said that it is crucial that the provider 
be aware of what matters most to patients; patients deserve to know 
whether a treatment provides clear and important benefits and is 
aligned with their care preferences.
    Commenters were broadly in agreement about the importance of 
permitting reasonable modifications that will enable an individual with 
disabilities to understand and indicate consent or disagreement with 
what is being discussed, including allowing a supporter to help the 
individual make reasoned decisions in an accessible way through 
supported decision-making. Some commenters mentioned the importance of 
using plain, accessible language and, when not urgent, giving the 
individual time to discuss and think about the options without 
pressure. Sometimes a more in-depth discussion may be required than 
would be given to an individual without a disability and some mentioned 
that longer discussions may require breaks.
    Many people with disabilities discussed experiencing discrimination 
as a result of their use of or request for reasonable modifications, 
including the use of accessible telehealth and medical devices, access 
to certified interpreters for the Deaf, the use of Augmentative and 
Alternative Communication (AAC) technology, the use of supported 
decision-making, and other reasonable modifications as well as 
auxiliary aids and services.
    Response: We appreciate the commenters' feedback. This provision, 
when read in conjunction with the remainder of the section, focuses not 
only on what information a recipient can provide but also on what the 
provider must provide. We agree with commenters who stressed the 
importance of providing all treatment options to individuals with 
disabilities.
    The failure to offer information about all options could be a 
result of the provider's own assumptions about which option is the 
best. When providers do not offer complete information because they 
have made an assumption based on bias, a judgment that an individual 
with a disability will be a burden on others, or that an individual 
with disability's life has a lesser value than that of an individual 
without a disability, they have likely violated Sec.  84.56(b)(1). Such 
withholding of information in order to obtain consent to decline 
treatment would also likely violate Sec.  84.56(c)(2)(ii), as would the 
withholding of information on the basis of disability for other 
rationales.
    Section 84.68(b)(7) requires recipients to make reasonable 
modifications to policies, practices, and procedures when necessary to 
avoid discrimination unless the recipient can demonstrate that making 
the modifications would result in a fundamental alteration in the 
program or activity. Multiple commenters requested that we discuss 
supported decision-making in the medical treatment section and not just 
in the reasonable modifications section. We are including this 
discussion here, as requested, because the importance of permitting 
supported decision-makers

[[Page 40099]]

to allow individuals with disabilities the means to make an informed 
decision about the best course of treatment is relevant to Sec.  
84.56(c)(2) as well as Sec.  84.68(b)(7). Permitting individuals with 
disabilities to have a supported decision-maker with them to help 
facilitate effective communication and/or to help them decide on the 
best course of treatment can be crucial in ensuring that individuals 
with disabilities are able to give informed consent to medical 
treatments. Allowing a supported decision-maker may require other 
reasonable modifications such as changing visitor policies. More 
detailed information about supported decision-making as a reasonable 
modification can be found in the preamble to Sec.  84.68(b)(7).
    We also agree with commenters' suggestions of other types of 
reasonable modifications and other forms of effective communication 
that might be required, for example, by putting certain materials in 
plain language, presenting information in a way that it can be 
understood, permitting people with disabilities to bring a trusted 
friend or family member into discussions as a supporter, and allowing 
breaks in long discussions.
    Comments: In light of the clarification under Sec.  84.56(c)(2)(i) 
that nothing in this section requires a recipient to provide medical 
treatment to an individual where the individual, or their authorized 
representative, does not consent to that treatment, some commenters 
sought additional clarification on the scope of authority of an 
authorized representative, in particular whether recipients may have an 
obligation to seek additional clarification or review of those 
decisions when they would do so for a similarly situated patient 
without a disability. One commenter asked the Department to clarify 
that nothing in the regulation should preclude Federal or State law 
from limiting the power of an authorized representative, including a 
parent, to refuse life sustaining care for an individual.
    Response: With respect to distinguishing between decisions made by 
a patient's legally authorized representative and decisions made by the 
patient themselves or distinguishing between authorized representatives 
designated by the patient and those that were not so designated, 
recipient obligations are generally to not treat patients with 
disabilities differently from patients without disabilities in this 
regard. For instance, if recipients would seek additional clarification 
or ethics review in response to a request from an authorized 
representative to decline life-sustaining or otherwise medically 
indicated treatment to a person without a specific disability, then 
they are generally obligated to undertake the same steps for a 
similarly situated person with a disability under Sec.  84.56. In 
contrast, if they would not seek additional clarification or review 
when a proxy made such a decision for a person without a disability, 
Sec.  84.56 does not generally require them to do so for a person with 
a disability. Although some forms of authorized representation, such as 
guardianship or conservatorship, are typically applied only to people 
with disabilities, multiple comparators exist for authorized 
representatives that are also applied to people without disabilities. 
For example, patients without disabilities often designate medical 
proxies or powers of attorney for health care decision-making. 
Similarly, parents often make decisions on behalf of minor children 
with and without disabilities. These may allow for an appropriate 
comparison for the treatment of proxy decision-making, including under 
circumstances where the expressed wishes of the patient seem to differ 
from that of the proxy or where the treatment decision in question is 
medically contraindicated.
    In general, the Department agrees that the regulation does not 
preclude Federal or State law from limiting the power of an authorized 
representative, including with respect to decisions regarding refusing 
life-sustaining care. As noted previously in the preamble, section 504, 
as implemented in Sec.  84.3, Relationship to other laws, applies 
standard principles of preemption.
    Comment: A commenter requested the Department clarify that informed 
decision-making may appropriately result in patients electing hospice 
care.
    Response: The Department agrees with the commenter that informed 
decision-making may appropriately result in patients electing a wide 
array of services and care, including hospice care. Such decision-
making on the part of the patient is generally not a violation of Sec.  
84.56.
    Comment: A commenter representing educators for the deaf indicated 
that some children's hospitals have a practice of requiring parents or 
guardians of deaf and hard of hearing children to commit during the 
evaluation process for a cochlear implant that they will not use sign 
language nor enroll their children in schools for the deaf, even if 
they currently use sign language and are enrolled at schools for the 
deaf at present. While they agree that the determination of clinical 
eligibility for a cochlear implant is best left to surgeons, they ask 
the Department to clarify that this would constitute prohibited 
discrimination under Sec.  84.56 if patients are denied access to 
medically indicated treatment due to their refusal to commit to such 
terms.
    Response: As indicated elsewhere, discrimination against patients 
with disabilities due to their use of a particular treatment or service 
associated with their disability can constitute discrimination on the 
basis of disability. As a determination that discrimination has 
occurred is generally fact-specific, the Department would need to 
review the facts of a specific case to evaluate this question. However, 
we agree that a categorical requirement that patients with disabilities 
will be denied access to (or be led to believe they will be denied 
access to) medically indicated treatment if they do not commit to avoid 
use of assistive technology, reasonable modifications, or educational 
interventions associated with their disability could constitute a 
violation of Sec.  84.56 if such a requirement was not medically 
indicated in order to receive the sought after treatment.
    Comment: One commenter asked the Department to clarify that delays 
due to the engagement of an authorized representative would not 
constitute a violation of Sec.  84.56. They describe a situation where 
a patient requires informed consent from an authorized representative 
to receive care, but the health care provider cannot reach the 
authorized representative to get informed consent in a timely manner.
    Response: The Department agrees that delays due to the engagement 
of an authorized representative would generally not constitute a 
violation of Sec.  84.56, provided that the patient requires a 
representative in order to provide informed consent and that this 
judgment is not made based on a categorical belief that all patients 
with a specific kind of disability (e.g., serious mental illness or a 
cognitive disability) require a representative in order to provide 
informed consent. We also note that there are circumstances where 
physicians would typically not wait for an authorized representative to 
make decisions for persons without disabilities who cannot provide 
informed consent (e.g., minor children or patients who are 
incapacitated on a short-term basis without a disability), such as for 
the provision of immediately required life-saving or life-sustaining 
treatment. Under such circumstances, the recipient must generally treat 
the patient with a disability with no more delay than they would apply 
to a

[[Page 40100]]

similarly situated patient without a disability.
    Comments: Multiple commenters asked the Department to speak to the 
intersection of disability with other types of discrimination.
    Response: The Department acknowledges that disability 
discrimination frequently co-occurs with other types of discrimination 
and that the result of these different forms of discrimination can 
intersect, resulting in discrimination that is unique to the 
intersection of bases of discrimination. Section 504 prohibits 
discrimination on the basis of disability and, in addition to 
disability discrimination, OCR has been delegated authority under laws 
that prohibit discrimination on the basis of race, color, national 
origin, sex, and age. The Department agrees that simultaneous 
discrimination on multiple prohibited bases (including but not limited 
to intersectional discrimination) is important to account for. Section 
1557, which OCR enforces, prohibits such simultaneous discrimination.
    We continue to consider effective ways to address these issues 
within the existing statutory authorities delegated to OCR. For 
instance, OCR's proposed rulemaking on section 1557 would require 
covered entities to comply with uniform policies and procedures that 
apply across all prohibited bases of discrimination, rather than 
different procedural requirements depending on the alleged basis of 
discrimination. This accounts for claims of discrimination that are 
alleged to have occurred based on multiple protected bases 
discrimination and provides for more consistency regardless of whether 
an allegation of discrimination is based on race, color, national 
origin, sex, age, or disability--or some combination thereof.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.56 as proposed with one 
modification. We are changing Sec.  84.56(c)(1)(ii) so that the first 
sentence provides that circumstances in which the recipient has a 
legitimate, nondiscriminatory reason for denying or limiting a service 
or where the disability renders the individual not qualified for the 
treatment may include circumstances in which the recipient typically 
declines to provide the treatment to any individual, or reasonably 
determines based on current medical knowledge or the best available 
objective evidence that such medical treatment is not clinically 
appropriate for a particular individual.
Value Assessment (Sec.  84.57)
    Proposed Sec.  84.57 addressed the application of section 504 to 
value assessment. It stated that a recipient may not use any measure, 
assessment, or tool that discounts the value of life extension on the 
basis of disability to deny or afford an unequal opportunity to 
qualified individuals with disabilities with respect to any aid, 
benefit, or service, including the terms or conditions under which they 
are made.
    The Department sought comment on how value assessment tools and 
methods may provide unequal opportunities to individuals with 
disabilities and on other types of disability discrimination in value 
assessment not already specifically addressed with the proposed 
rulemaking. We also sought comment on whether the provision would have 
a chilling effect on academic research.
    The comments and our responses regarding Sec.  84.57 are set forth 
below.
    Comment: Many commenters, including entities engaged in value 
assessment, expressed broad support for the Department's proposal to 
include a provision relating to disability discrimination in value 
assessment. One comment from a prominent organization engaged in value 
assessment activities referred to the Department's proposed regulatory 
text as ``very precise and appropriate'' and indicated support for the 
provision in its current form.
    Response: The Department appreciates comments on our proposed 
approach to addressing disability discrimination in value assessment, 
including comments that the proposed rule appropriately prohibits 
discriminatory uses of value assessment and permits the use of value 
assessment in a nondiscriminatory fashion.
    Comment: Many commenters asked the Department to consider expanding 
the scope of Sec.  84.57 to prohibit discounting the value of quality 
of life, in addition to life extension, on the basis of disability. 
Other commenters specifically asked the Department not to expand the 
provision in this way and requested the Department maintain the 
regulatory text proposed within the NPRM.
    Response: While the Department has addressed disability 
discrimination on the basis of perceptions of quality of life in other 
aspects of the regulation, Sec.  84.57 applies only to value assessment 
methods that discount the value of life extension on the basis of 
disability. As discussed in the NPRM, elements of value assessment 
methods that may violate Sec.  84.57 in some contexts--such as for 
valuing life extension--may not violate it in other contexts. We have 
decided against adding a prohibition on measures that discount the 
value of quality of life on the basis of disability in Sec.  84.57 
because, within the context of value assessment, the use of measures 
that determine the value of a treatment based on the magnitude of 
quality of life changes are often beneficial to persons with 
disabilities. Such measures create a mechanism through which the 
relative degree of quality of life improvements a treatment provides 
compared to other similar treatments can be incorporated into a pricing 
strategy. However, we reiterate that the use of measures that also 
discount the value of life-extension on the basis of disability to deny 
or afford an unequal opportunity to qualified individuals with 
disabilities with respect to any aid, benefit, or service, including 
the terms or conditions under which they are made available, would be 
prohibited. This remains the case even if the additional value assigned 
to a treatment due to quality of life improvements fully offsets any 
penalty assigned from discounting the value of life-extension. We also 
note that discounting the value of quality of life on the basis of 
disability for purposes of denying or limiting medical treatment to a 
qualified individual with a disability would likely violate Sec.  
84.56.
    Other aspects of this rule may also be relevant when evaluating 
recipient value assessment activities. These include Sec.  84.56, which 
prohibits discrimination on the basis of biases or stereotypes about a 
patient's disability, judgments that the individual will be a burden on 
others due to their disability, and a belief that the life of a person 
with a disability has lesser value or that life with a disability is 
not worth living. The Department will continue to monitor disability 
discrimination concerns in value assessment activities as the field 
develops.
    Comment: Some commenters requested that the Department specifically 
clarify that the Department does not intend to prohibit 
nondiscriminatory uses of value assessment.
    Response: As indicated in the NPRM, the rule does not prohibit 
nondiscriminatory uses of value assessment.
    Comment: Many commenters asked the Department to indicate that 
certain specific methods of value assessment were permitted under Sec.  
84.57, while other commenters asked the Department to indicate that the 
same or similar methods were prohibited under Sec.  84.57.
    Response: As the Department indicated within the NPRM, we have

[[Page 40101]]

elected not to identify the use of any specific method of value 
assessment, but instead to prohibit measures that discount the value of 
life extension on the basis of disability when used to deny or provide 
an unequal opportunity for a qualified person with a disability to 
participate in or benefit from an aid, benefit, or service. We have 
done so because the determination that a specific value assessment 
method will be prohibited depends on the specific context and purpose 
for which that method is utilized. For example, some methods that are 
impermissible for purposes of reimbursement or utilization management 
decisions are still permitted for purposes of academic research.
    The use of a measure that does not discount the value of life 
extension on the basis of disability likely does not violate Sec.  
84.57. The Department notes, however, that composite measures that use 
methods that discount the value of life extension on the basis of 
disability as one component of a larger summary measure or pricing 
strategy could, depending on the particular facts of a specific case, 
be prohibited for use in determining eligibility or referral for, or 
provision or withdrawal of any aid, benefit, or service, including the 
terms or conditions under which they are made available if the 
component that discounts the value of life extension contributes to the 
price set by the measure or any decision to determine eligibility, 
referral for, or provision or withdrawal of an aid, benefit or service. 
This is true even where other components of the summary measure or 
pricing strategy do not discount the value of life extension.
    Comment: A commenter requested the Department prohibit all ``cost-
per-generic-health metric'' methods of value assessment, encompassing a 
broad range of methodologies not prohibited under the current language 
of Sec.  84.57.
    Response: The Department declines to make this change. A 
prohibition as broad as the one proposed by the commenter would 
encompass alternative methods of value assessment that do not 
discriminate on the basis of disability under the Department's current 
understanding of section 504. We have elected to limit Sec.  84.57 to 
measures that discount the value of life extension on the basis of 
disability when used to deny or provide an unequal opportunity for a 
qualified person with a disability to participate in or benefit from an 
aid, benefit, or service.
    Comment: Some commenters asked the Department to align the language 
of Sec.  84.57 with the text of section 1182 of the Affordable Care 
Act, which prohibits ``the use of a dollars-per-quality-adjusted-life-
year (or similar measure that discounts the value of a life because of 
an individual's disability)'' from being used to determine coverage, 
reimbursement, or incentive programs in certain program or activities.
    Response: The Department has elected not to modify the regulatory 
text. The Department interprets recipient obligations under the current 
language of Sec.  84.57 to be broader than section 1182 of the 
Affordable Care Act, because it prohibits practices prohibited by 
section 1182 (where they are used to deny or afford an unequal 
opportunity to qualified individuals with disabilities with respect to 
the eligibility or referral for, or provision or withdrawal of an aid, 
benefit, or service) and prohibits other instances of discriminatory 
value assessment. As we have indicated elsewhere, section 504 is a 
civil rights statute rather than a program statute, and thus is not 
required to align precisely with requirements in program statutes. We 
decline to modify the regulatory text to use the same language as in 
section 1182.
    Comment: Some commenters asked the Department to clarify that a 
recipient engaged in value assessment activities that is in compliance 
with Sec.  84.57 might still violate other requirements under section 
504 in such activities. For example, one State Attorney General asked 
the Department to explicitly indicate that Sec.  84.57 is not exclusive 
and does not preclude the application of other provisions of section 
504 to value assessment activities. In the absence of such 
clarification from the Department, the commenter raised concerns that 
Sec.  84.57 might inadvertently foreclose claims against recipients who 
use discriminatory algorithms or artificial intelligence tools that 
discriminate against people with disabilities.
    Response: The Department agrees that compliance with Sec.  84.57--
which prohibits only the use of value assessment methods that discount 
the value of life extension on the basis of disability to deny or 
afford an unequal opportunity to qualified individuals with 
disabilities with respect to the eligibility or referral for, or 
provision or withdrawal of any aid, benefit, or service--does not mean 
that a recipient has not violated other provisions of the section 504 
rule.
    Comment: Several commenters asked the Department to indicate 
whether the use of specific value assessment methods to develop health 
care policies, including drug formularies and utilization management 
strategies, could be discriminatory under Sec.  84.57.
    Response: The use of value assessment methods for developing health 
care policies, including drug formularies and utilization management 
strategies, could be discriminatory under Sec.  84.57 if the method 
used discounts the value of life extension on the basis of disability 
and is used to determine eligibility or referral for, or provision or 
withdrawal of any aid, benefit, or service. This could include, for 
example, the use of value assessment methods for formulary 
construction, design, development, or refinement as well as other 
utilization management strategies of recipients.
    Comment: Several comments asked the Department to provide 
additional clarity on the application of Sec.  84.57 to academic 
research. One commentor asked the Department to specifically clarify 
that academic research, including research that references quality-
adjusted life years (QALYs), can be used to inform multi-factor 
Medicaid agency decision making. Other commenters asked the Department 
to provide additional clarity with respect to how academic research may 
be used for purposes of value assessment.
    Response: Within the NPRM, the Department explicitly indicated that 
it is the discriminatory use of a measure by a recipient that violates 
of Sec.  84.57. The use of a methodology that is discriminatory when 
applied to determine eligibility, referral for, or provision or 
withdrawal of an aid, benefit, or service would not be discriminatory 
if used in academic research to assess the relative effect of different 
policy changes or medical innovations on national or global population 
health.
    However, a recipient who makes use of academic research to 
determine eligibility, referral for, or provision or withdrawal of an 
aid, benefit, or service may violate section 504 if the use of the 
method in the research product is discriminatory when applied in the 
new context. A value assessment output used by a recipient that is 
derived from a method that discounts the value of life extension on the 
basis of disability is not made permissible because the recipient is 
using a research product, when it would not be permissible for the 
recipient to make use of that method directly.
    As to the use of academic research in Medicaid agency decision-
making, as discussed in the NPRM, the Department does not intend to 
reference any further specific value assessment methods as prohibited 
or permitted under Sec.  84.57, as this determination will be the 
result

[[Page 40102]]

of the specific context and purpose for which a value assessment method 
is utilized. However, recipients may make use of prices or other 
outputs from value assessment methods that do not discount the value of 
life-extension on the basis of disability within academic research. 
This remains the case even where that academic research also includes 
prices or other outputs determined via methods that do discount the 
value of life extension on the basis of disability, provided that the 
recipient is only making use of outputs that come from value assessment 
methods that do not discount the value of life extension on the basis 
of disability.
    For example, consider a State Medicaid agency seeking to determine 
appropriate pricing for a new drug for purposes of negotiating drug 
prices with a manufacturer and subsequently making decisions regarding 
utilization management. In doing so, they refer to academic research 
that calculates multiple potential pricing options for that drug, using 
multiple different value assessment methods for purposes of comparing 
pricing under different methods. Some of these methods discount the 
value of life extension on the basis of disability, whereas others do 
not. The State Medicaid agency would generally not violate Sec.  84.57 
if it uses pricing from methods that do not discount the value of life 
extension on the basis of disability to inform their negotiations with 
a manufacturer. In contrast, should the State Medicaid agency use 
prices or other outputs from a value assessment method that does 
discount the value of life extension on the basis of disability 
presented within the same academic research, this could violate Sec.  
84.57.
    Comment: One commenter expressed concern that the Department's 
explanation of Sec.  84.57 in the NPRM was inconsistent with language 
in Sec.  84.56(b)(2) prohibiting discrimination only in instances where 
an individual experiences discrimination on the basis of an underlying 
disability distinct from the separately diagnosable symptom or medical 
condition they are seeking treatment from. They asked the Department to 
clarify its discussion of Sec.  84.57 to align it with Sec.  
84.56(b)(2).
    Response: This comment misunderstands the scope of section 504 and 
the referenced provisions. These are different provisions with 
different applications. The distinction between persons seeking 
treatment for their own underlying disability and persons seeking 
treatment for a separately diagnosable symptom or medical condition is 
made only with respect to the broad-based prohibition in Sec.  
84.56(b)(2) indicating that a recipient may not deny or limit 
clinically appropriate treatment if it would be offered to a similarly 
situated individual without an underlying disability. The medical 
treatment provision is not limited to that one part.
    For example, even within Sec.  84.56, the Department indicates that 
discrimination based on biases or stereotypes about a patient's 
disability, judgments that the individual will be a burden on others 
due to their disability, or a belief that the life of a person with a 
disability has lesser value or that life with a disability is not worth 
living is prohibited regardless of whether treatment is sought for a 
separately diagnosable medical condition or symptom or for a patient's 
underlying disability. These obligations apply to recipient activities 
without regard to whether the potential discrimination in the use of a 
value assessment method is on the basis of an underlying disability or 
separately diagnosable symptom or medical condition. Similarly, other 
provisions implementing section 504--such as Sec.  84.57--are also not 
subject to this limitation.
    Comment: One commenter argued that the use of the QALYs and other 
methods of value assessment that frequently entail discounting the 
value of life extension on the basis of disability are not 
discriminatory because they are ``only one step'' in a process of 
decision-making, noting that policymakers also take into account other 
factors in their ultimate decision-making.
    Response: Although recipients may make use of multiple factors to 
influence their decision-making, the use of a measure of value that 
assigns lower value to extending the lives of people with disabilities 
to determine eligibility, referral, or provision or withdrawal of an 
aid, benefit, or service can be nonetheless discriminatory.
    Comment: One commenter requested that the Department not take a 
stance on utility weight generation. They specifically asked that we 
not require the use of direct patient utilities. They noted that 
concerns that value assessment ``quantifies stereotypic assumptions 
about persons with disabilities'' relate ``less to the application of 
cost-per-QALY analyses, and more to the underlying elicitation approach 
used to generate utility weights called time-trade-off exercises.'' The 
commenter argued that there is value in ``both general population 
preferences and patient preferences'' in generating utility weights and 
that relying exclusively on patient preferences might serve to 
undervalue treatments as compared to using utility weights from the 
general population.
    Response: The Department agrees that it would not be appropriate to 
require the use of direct patient utilities. Methods of utility weight 
generation are subject to section 504 when they are used in a way that 
discriminates. They are subject to Sec.  84.57 and other provisions 
within the rule, such as Sec.  84.56's prohibition of discrimination 
based on biases or stereotypes about a patient's disability, among 
others. However, the Department does not take a position on specific 
methods of utility weight generation at this time.
    Comment: One commenter asked the Department to modify the language 
reading ``value of life extension'' to ``value of treatments that 
extend life.'' They indicate that this would better reflect their view 
that ``the objective of value assessment is not to value the life of 
individuals, rather, estimate the value of treatments that may extend 
life.''
    Response: We decline to make this change, as the proposed text 
``value of treatments that extend life'' would substantially alter the 
meaning of the regulation, prohibiting a far broader scope of value 
assessment activities than the current text. Furthermore, we believe 
that the current language accurately describes the discriminatory uses 
of value assessment prohibited by this provision.
    Comment: One commenter asked the Department to avoid banning the 
QALY in academic research, expressing concern for unintended 
consequences of such a step.
    Response: Section 84.57 does not prohibit the use of any value 
assessment method, including the QALY, in academic research. As 
mentioned in the NPRM, the use of a methodology that is discriminatory 
when applied to determine eligibility, referral for, or provision or 
withdrawal of an aid, benefit, or service would not be discriminatory 
if used in academic research to assess the relative contribution of 
different policy changes or medical innovations on national or global 
population health. In addition, we reiterate that the discriminatory 
use of a measure by a recipient violates this provision, but other uses 
may not. Nor does the rule outright ban the use of specific measures 
such as QALYs.
    Comment: Some commenters argued that the use of the QALY and other 
similar measures that discount the value of life extension on the basis 
of disability for purposes of resource allocation is not discriminatory 
because it yields a higher valuation for a given health care 
intervention than a cost-per-

[[Page 40103]]

life-year calculation would, as the latter does not take into account 
quality of life improvements. They also reference other value 
assessment methods that may, under certain circumstances, assign lower 
valuations than a cost-per-QALY framework. The commenters argue that 
because the QALY delivers a higher valuation than non-QALY methods 
under these circumstances it cannot be discriminatory to make use of it 
even where it discounts the value of life-extension on the basis of 
disability, as it assigns a higher valuation to quality of life 
improvements than the alternative methods they reference.
    Response: The Department disagrees. It is true that for 
interventions that improve quality of life, a cost-per-QALY valuation 
will likely be higher than a cost-per-life-year valuation, because a 
cost-per-life-year approach assigns no value to quality of life 
improvements. We note the availability of other value assessment 
methods. However, compliance with Sec.  84.57 does not require the use 
of a cost-per-life-year valuation, an approach that is relatively 
uncommon when evaluating interventions that improve patient quality of 
life. The use of other alternative value assessment methods may yield 
different results.
    In addition, the discriminatory nature of assigning less value to 
extending the lives of people with disabilities remains the case even 
where other factors in a value assessment system result in a higher 
valuation. In short, discounting the value of life-extension on the 
basis of disability to deny or afford an unequal opportunity to 
qualified individuals with disabilities is prohibited even if other 
aspects of a system of value assessment favor people with disabilities 
(though a recipient could incorporate such favorable treatment into an 
approach that does not discount life-extension on the basis of 
disability for such purposes). Favorable treatment in one component of 
a program of value assessment does not permit discriminatory treatment 
in another context. Finally, we note that the Department does not take 
a position on which alternative measure of value assessment recipients 
should use.
    Comment: The Department requested comment on how value assessment 
tools and methods may provide unequal opportunities to individuals with 
disabilities. Numerous commenters indicated that value assessment 
methods could limit people with disabilities' access to health care 
goods and services, including pharmaceutical interventions, and 
expressed concern that the use of the QALY unfairly limited access to 
emerging pharmaceutical interventions that could extend the lives of 
people with disabilities.
    Response: While the nondiscriminatory use of value assessment is an 
important tool for health care cost containment, the Department agrees 
that discriminatory usages of value assessment harm people with 
disabilities and provide unequal opportunities.
    Comment: The Department requested comment on other types of 
disability discrimination in value assessment not already specifically 
addressed within the proposed rulemaking. In addition to the proposals 
already discussed, some commenters urged the Department to consider 
disability discrimination in clinical algorithms, automated decision-
making and artificial intelligence. This was also raised in comments 
regarding Sec.  84.56.
    Response: The Department agrees that disability discrimination 
resulting from the use of algorithms, automated decision-making, and 
artificial intelligence is a serious issue. Section 504 prohibits a 
recipient from discriminating on the basis of disability. This 
encompasses discrimination through a recipient's use of algorithms, 
automated decision-making, and artificial intelligence. For example, 
during the COVID-19 public health emergency, OCR discovered that Crisis 
Standards of Care plans that States and hospital systems used to 
allocate scarce resources relied on clinical algorithms to determine 
the allocation of scarce critical care resources. Many of these 
algorithms discriminated against people with disabilities and older 
individuals by categorically excluding patients with certain types of 
disabilities or by considering other factors that can be discriminatory 
based on disability or age, such as long-term survival prospects or 
anticipated intensity of resource utilization. OCR worked extensively 
with several States during the public health emergency to help them 
revise their Crisis Standards of Care plans to remove discriminatory 
bias \54\ and issued guidance on that issue.\55\ We note that other 
Federal agencies have also identified that disability discrimination 
through the use of algorithms and artificial intelligence violates 
existing Federal civil rights laws.\56\ The Department is particularly 
interested in monitoring disability discrimination through the use of 
these tools in the context of child welfare, medical treatment, long-
term services and supports, and alternative payment models. Section 504 
already prohibits disability discrimination in these and other 
activities through recipients' use of clinical algorithms, automated 
decision-making, and artificial intelligence. A more tailored 
application of the framework outlined here to algorithms, automated 
decision-making, and artificial intelligence requires further 
information gathering.
---------------------------------------------------------------------------

    \54\ U.S. Dep't of Health & Human Servs., Off. for Civil Rts., 
Civil Rights and COVID-19, https://www.hhs.gov/civil-rights/for-
providers/civil-rights-covid19/
index.html#:~:text=NON%2DDISCRIMINATION%20IN%20CRISIS%20STANDARDS%20O
F%20CARE (last reviewed May 11, 2023).
    \55\ U.S. Dep't of Health & Human Servs., Off. for Civil Rts., 
FAQs for Healthcare Providers During the COVID-19 Public Health 
Emergency: Federal Civil Rights Protections for Individuals with 
Disabilities under Section 504 and Section 1557, https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/disabilty-faqs/#footnote3_2brd1au; Press release, Dep't of 
Health & Human Servs., Off. for Civil Rts., HHS Issues New Guidance 
for Health Care Providers on Civil Rights Protections for People 
with Disabilities (Feb. 4, 2022), https://www.hhs.gov/about/news/2022/02/04/hhs-issues-new-guidance-health-care-providers-civil-rights-protections-people-disabilities.html.
    \56\ See, e.g., U.S. Dep't of Justice, Algorithms, Artificial 
Intelligence, and Disability Discrimination in Hiring (2022), 
https://www.ada.gov/resources/ai-guidance/; U.S. Equal Emp't 
Opportunity Comm'n, EEOC-NVTA-2022-2, The Americans with 
Disabilities Act and the Use of Software, Algorithms, and Artificial 
Intelligence to Assess Job Applicants and Employees (2022), https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence.
---------------------------------------------------------------------------

    As we discussed earlier in the preamble, Sec. Sec.  84.56 and 84.57 
are not exhaustive with respect to recipient obligations regarding 
medical treatment and value assessment, respectively. A recipient's 
compliance with Sec. Sec.  84.56 and 84.57 does not preclude liability 
for violations of other sections.
    OCR has taken additional and will consider further actions to 
clarify recipients' obligations under Federal civil rights laws 
regarding the use of algorithms, automated decision-making, and 
artificial intelligence. For example, the Department's section 1557 
final rule on Nondiscrimination in Health Programs and Activities 
prohibits a covered entity from discriminating on the basis of race, 
color, national origin, sex, age, or disability in its health programs 
or activities through the use of patient care decision support tools, 
which include algorithms, automated and non-automated tools, and 
artificial intelligence used to support clinical decision-making.
    The Department is interested in the public's views regarding 
disability discrimination that occurs through the use of algorithms, 
automated decision-making, and artificial intelligence. We are also 
interested in the public's views on whether OCR should issue guidance

[[Page 40104]]

or consider future rulemaking related to the application of section 504 
to disability discrimination that results from the use of algorithms, 
automated decision-making, and artificial intelligence. Anyone 
interested in sharing views or comments on these issues should do so by 
sending the information by letter to the Office for Civil Rights at 
U.S. Department of Health and Human Services, Office for Civil Rights, 
Attention: Disability Information, RIN 0945-AA15, Hubert H. Humphrey 
Building, Room 509F, 200 Independence Avenue SW, Washington, DC 20201 
or by email to the Office for Civil Rights at [email protected].
    Comment: The Department sought comment on the extent to which, 
despite indicating that Sec.  84.57 would not apply to academic 
research alone, the provision would have a chilling effect on academic 
research. The majority of commenters indicated their belief that, 
rather than chill academic research, Sec.  84.57 would spur an 
expansion in research making use of nondiscriminatory alternatives to 
the QALY and research further developing and refining such alternative 
measures. In contrast, a commenter expressed concern that prohibiting 
methods of value assessment that discount the value of life extension 
on the basis of disability would chill academic research as researchers 
would be less likely to invest time and resources into generating 
research findings that cannot inform decision-making.
    Response: The Department agrees that the proposed provision may 
spur an expansion in research making use of nondiscriminatory methods 
of value assessment and research further developing and refining such 
alternative measures. While we recognize that researchers may orient 
their time and resources into generating research findings using 
nondiscriminatory methods that can inform health care resource 
allocation and decision-making and away from discriminatory methods 
that cannot be used for such purposes, we see this as a possible 
positive feature of this regulatory provision. Given the existence of 
nondiscriminatory options and the Department's carefully targeted 
approach to addressing disability discrimination in value assessment, 
we do not believe this represents a chilling of academic research into 
value assessment as a whole.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.57 as proposed with no 
modifications.
Children, Parents, Caregivers, Foster Parents, and Prospective Parents 
in the Child Welfare System (Sec.  84.60)
    The Department proposed in Sec.  84.60 to address the wide range of 
discriminatory barriers that individuals with disabilities face when 
accessing child welfare systems. These included a failure to provide 
reasonable modifications as required of all recipients in proposed 
Sec.  84.68(b)(7). It also included the failure to place children in 
the most integrated setting appropriate to the needs of the child as 
required by existing Sec.  84.4(b)(2), proposed Sec.  84.68(d), and the 
specific integration requirements contained in proposed Sec.  84.76. 
The preamble provided examples of the violation of the most integrated 
setting requirement in the child welfare setting.
    The Department sought comment on additional examples of the 
application of the most integrated setting requirement to child welfare 
programs and welcomed comment on any additional points for 
consideration regarding integration of children with disabilities in 
child welfare contexts.
    Proposed Sec.  84.60(a)(1) prohibited exclusion of qualified 
individuals with disabilities in the child welfare system.
    Proposed Sec.  84.60(a)(2) provided that prohibited actions include 
discrimination based on speculation, stereotypes, or generalizations 
about whether parents and others with disabilities listed in the 
heading of the section can safely care for a child and decisions based 
on speculation, stereotypes, or generalizations about an individual 
with a disability.
    Proposed Sec.  84.60(b) set forth a non-exhaustive list of 
additional prohibitions.
    The Department requested comment on the list of prohibited 
activities, especially on whether commenters believe it is complete.
    Proposed Sec.  84.60(c) would require recipients to establish 
referral procedures for individuals who need or are believed to need 
adapted services or reasonable modifications, and to ensure that tests, 
assessments, and other evaluation materials, are tailored to assess 
specific areas of disability-related needs.
    The Department sought comment on how agencies would implement these 
referral procedures, ensure that service providers use the methods 
described, and prohibit the use of IQ alone as the basis for a 
parenting evaluation.
    The comments and responses regarding Sec.  84.60 are set forth 
below.
General
    Comment: Many commenters enthusiastically supported the revisions 
to the child welfare section, echoing the Department's explanation in 
the NPRM that children, parents, caregivers, foster parents, and 
prospective parents with disabilities encounter a wide range of 
discriminatory barriers when accessing critical child welfare programs 
and services. Some commenters submitted stories of discrimination 
against foster parents and caregivers with disabilities who could 
provide safe and proper care to a child, such as a prospective adoptive 
parent being denied solely on the basis of having spinal muscular 
atrophy, which required the prospective mother to use a wheelchair.
    Response: The Department believes the experiences shared with the 
Department through public comments underscore the importance of 
eliminating discrimination in child welfare services.
    Comment: Several commenters asked the Department to include 
explicit reference to other child welfare statutes, such as title IV-E 
of the Social Security Act of 1935 (Pub. L. 96-272, 94 Stat 500), the 
Family First Prevention Services Act (Pub. L. 115-123, 132 Stat 64), 
and the Indian Child Welfare Act (Pub. L. 95-608, 92 Stat 3069). 
Commenters asked that the Department elaborate on how section 504 
interacts with the requirements of these laws.
    Response: Compliance with section 504 is consistent with the 
Federal child welfare statutes, but the Department declines to 
incorporate their requirements by reference because those other laws 
are beyond the scope of this rulemaking. We note that Sec.  84.3 makes 
clear that part 84 ``does not invalidate or limit the remedies, rights, 
and procedures of any other Federal laws, or State or local laws 
(including State common law) that provide greater or equal protection 
for the rights of individuals with disabilities, or individuals 
associated with them.'' We will continue to work with our sister 
agencies within HHS as questions or comments arise regarding various 
child welfare statutes and regulations, including section 504, and will 
provide guidance and technical assistance as appropriate.
Application of This Section
    Comment: Several commenters requested that the term ``youth'' or 
``young people'' be added wherever child or children is used to avoid 
unintentionally excluding individuals over the age of 18 who are 
receiving child welfare services. Commenters

[[Page 40105]]

recommended that the word ``youth'' be used to replace the word 
``child'' or ``children,'' or that ``child'' be defined as ``an 
individual under age 18 and young people aged 18 and over who are 
eligible for child welfare services pursuant to 42 U.S.C.A. 675 (8).''
    Response: ``Qualified individual with a disability'' in paragraph 
(a) includes individuals of all ages eligible for child welfare 
services, including individuals over the age of 18. The age of 
eligibility for State child welfare services is determined by State 
law, and may include youth up to age 21.\57\ These individuals are 
covered under the existing language, and the proposed addition 
suggested by commenters could potentially create confusion, and could 
erroneously imply that these individuals were not already covered.
---------------------------------------------------------------------------

    \57\ 42 U.S.C. 675 (8) (allowing States to extend services to 
individuals up to age 21).
---------------------------------------------------------------------------

    Comment: Several commenters asked that we elaborate on the 
different legal forms of parentage in the rule's definition of 
``parent,'' and referenced different legal structures such as including 
Voluntary Acknowledgements of Parentage (VAPs), court orders, marital 
presumptions, being an intended parent to a child born through assisted 
reproduction, and functional parenthood (such as de facto parentage).
    Response: The Department appreciates commenters' feedback and notes 
that there are varied ways parents receive legal recognition under 
State law. However, our current definition of ``parents,'' as 
``biological or adoptive parents or legal guardians as determined by 
applicable State law,'' encompasses the different ways individuals may 
be recognized by State law as parents.
    Comment: Many commenters asked that the child welfare section 
explicitly reference other sections of the rule, such as the 
requirements for reasonable modifications and effective communication. 
For example, several commenters asked that the Department specify that 
parenting classes and their written materials, any forms or assessments 
parents are required to fill out, and any information provided to 
parents, must all be accessible to individuals with disabilities.
    Response: The Department affirms that subparts A, B, C, Sec. Sec.  
84.51, 84.52, and 84.54 of subpart F, and subparts G, H, and K apply to 
all child welfare recipients. The child welfare-specific regulatory 
language in Sec.  84.60 does not narrow or limit recipients' existing 
and long-standing obligations under section 504 or the ADA. Rather, 
specific provisions in this section address several aspects of 
discrimination that are common in child welfare programs and services. 
Where an individual with a disability faces discrimination not 
addressed by these specific provisions, then the broader equal access, 
equal opportunity, reasonable modifications, and non-discrimination 
provisions of the regulation, along with the accompanying defenses, 
shall continue to apply.
    Comment: Some commenters asked the Department to add discrimination 
based on substance use disorder to the list of prohibited activities. 
Commenters cited that parents and prospective parents, foster parents, 
and other caregivers in recovery from addiction are often discriminated 
against for using medications for opioid use disorder (MOUD).
    Response: The Department recognizes that discrimination against 
parents and prospective caregivers in recovery from opioid use disorder 
and in recovery from other substance use disorders (SUD) is 
widespread.\58\ For example, in August 2023 the OCR settled an 
investigation resolving a complaint against a county-operated child 
welfare agency that denied an individual the opportunity to apply to be 
a foster parent because she receives medication for the treatment of 
substance use disorder and not based on an analysis of her ability to 
be an effective foster parent, a violation of her rights under section 
504. The Department has previously issued guidance related to MOUD and, 
as noted in the NPRM's preamble, continues to enforce cases of 
discrimination against individuals prescribed MOUD.\59\ With limited 
exceptions, the ADA and section 504 do not protect individuals engaged 
in the current illegal use of drugs, including if an entity takes 
action against them because of that illegal drug use.\60\
---------------------------------------------------------------------------

    \58\ See e.g., U.S. Dep't of Health & Human Servs., Off. for 
Civil Rts., HHS Office for Civil Rights Secures Agreement with 
Commonwealth of Pennsylvania to Advance the Rights of People in 
Recovery and Involved in Child Welfare Services (Aug. 8, 2023), 
https://www.hhs.gov/about/news/2023/08/08/hhs-office-civil-rights-secures-agreement-commonwealth-pennsylvania-advance-rights-people-recovery-involved-child-welfare-services.html.
    \59\ U.S. Dep't Health & Human Servs., U.S. Dep't of Justice, 
Protecting the Rights of Parents and Prospective Parents with 
Disabilities: Technical Assistance for State and Local Child Welfare 
Agencies and Courts under Title II of the Americans with 
Disabilities Act and section 504 of the Rehabilitation Act (2015), 
https://www.hhs.gov/sites/default/files/disability.pdf.
    \60\ 42 U.S.C. 12210 (ADA); 29 U.S.C. 705(20)(C) (section 504).
---------------------------------------------------------------------------

Discriminatory Actions Prohibited (Sec.  84.60(a))
    Comment: Several commenters emphasized the importance of avoiding 
``speculation, stereotypes, or generalizations'' in assessing whether a 
parent's disability poses a direct threat to the child. Commenters also 
asked that direct threat be added to the language of this section.
    Response: This section does not use the language ``direct threat,'' 
because it covers a broader category of decisions where a covered 
entity may determine that a parent, caregiver, foster parent, or 
prospective parent, because of a disability, cannot safely care for a 
child. These decisions may include but are not limited to, whether a 
parent poses a direct threat to the child. However, the Department 
emphasizes while child welfare agencies may make determinations to 
disqualify a parent or child from services on grounds that they may 
pose a direct threat to others, such determinations are subject to 
Sec.  84.75. Child welfare agencies and providers are required by law 
to ensure the safety of children in the child welfare system, and a key 
priority of child welfare agencies is the wellbeing of children. The 
determination of whether a caregiver can provide for a child's safety 
and wellbeing must be based on facts regarding each individual and not 
based on stereotypes about people with disabilities. In determining 
whether an individual poses a direct threat, a recipient must make an 
individualized assessment based on reasonable judgment from current 
medical knowledge or the best available objective evidence to ascertain 
the nature, duration, and severity of the risk to the child; the 
probability that the potential injury to the child will occur; and 
whether reasonable modifications of policies, practices, or procedures 
will mitigate the risk. Where a parent with a disability poses a 
significant risk to the child's health and safety, recipients would be 
permitted to delay or deny reunification or delay or deny visitation 
with a parent.
Child Welfare Question 1 Regarding ``Most Integrated Setting''
    Comment: The Department sought comment on additional examples of 
the application of the most integrated setting requirement to child 
welfare programs and welcomed comment on any additional points for 
consideration regarding integration of children with disabilities in 
child welfare contexts. In response, numerous commenters noted that the 
most integrated setting for children is the family home with in-home 
supports and services. Commenters noted that child welfare settings 
exist on a continuum of integration, with the most integrated setting 
for a child being receiving

[[Page 40106]]

services at home with their parents, followed by properly supported 
kinship placements, then foster care in a family setting, including 
when appropriate therapeutic foster care. Commenters noted that 
congregate care is the least integrated setting, yet it is often the 
default placement for children with disabilities, particularly 
disabilities related to mental and behavioral health. Many commenters 
urged that congregate care placements are only nondiscriminatory when 
the covered entity has made reasonable modifications to services and 
supports that could enable children to remain together in the family 
home. Several commenters asked that we include specific language in the 
regulatory text describing the criteria for congregate care placements.
    Many commenters also noted that ensuring families can remain 
together at home potentially requires the coordination of multiple 
covered entities and associated services, including long-term services 
and supports, home modifications and assistive technology, employment 
supports and services, community-based mental health services and 
community resources or supports for people with substance use 
disorders. A commenter asked the Department to emphasize the harms of 
certain placements, such as out-of-state placements.
    Response: While the Department declines to distinguish explicitly 
between different congregate care settings or list mandatory criteria 
for congregate care placements, we reiterate that all children with 
disabilities in foster care are entitled to receive services in the 
most integrated setting appropriate to their needs,\61\ and congregate 
care is virtually never the most appropriate long-term setting for 
children.\62\ We agree with commenters that the most integrated setting 
appropriate for children with disabilities is almost always the family 
home or a family foster care setting.\63\ Recipients should consider 
and facilitate the full range of services and supports a family may be 
eligible for to keep parents and children together.
---------------------------------------------------------------------------

    \61\ See, e.g., G.K. by Cooper v. Sununu, No. 21-cv-4-PB, 2021 
WL 4122517 (D.N.H. Sept. 9, 2021), allowing a class action to 
proceed on claims filed by or on behalf of children in foster care 
alleging violations of the ADA and section 504 based on a State's 
failure to provide alternatives to congregate care for children with 
disabilities. Id. at *10 (``Unless [the State] could prevail on a 
fundamental-alteration defense, the State must administer its foster 
care services in a manner that enables plaintiffs to live in . . . 
integrated settings.'').
    \62\ See, e.g., U.S. Dep't of Health & Human Servs., Admin. for 
Child. & Fam., Children's Bureau, Reducing the Use of Congregate 
Care, https://www.childwelfare.gov/topics/permanency/reducing-use-congregate-care/ (``Congregate care settings, such as group homes 
and residential facilities, are not a substitute for family and 
should only be used on a time-limited basis when youth require 
services that are unavailable in a less restrictive environment to 
address psychological or behavioral needs.''); U.S. Dep't of Health 
& Human Servs., Admin. for Child. & Fam., Children's Bureau, A 
National Look at the Use of Congregate Care in Child Welfare, (May 
13, 2015) https://www.acf.hhs.gov/sites/default/files/documents/cb/cbcongregatecare_brief.pdf (``[T]here is consensus across multiple 
stakeholders that most children and youth, but especially young 
children, are best served in a family setting. Stays in congregate 
care should be based on the specialized behavioral and mental health 
needs or clinical disabilities of children. It should be used only 
for as long as is needed to stabilize the child or youth so they can 
return to a family-like setting.'').
    \63\ See, e.g., Sandra Friedman et al., Out-of-Home Placement 
for Children and Adolescents With Disabilities--Addendum: Care 
Options for Children and Adolescents With Disabilities and Medical 
Complexity. 138:6 Pediatrics: Official Journal of the American 
Academy of Pediatrics (2016), https://publications.aap.org/pediatrics/article/138/6/e20163216/52567/Out-of-Home-Placement-for-Children-and-Adolescents?autologincheck=redirected (``Children and 
adolescents with significant intellectual and developmental 
disabilities and complex medical problems require safe and 
comprehensive care to meet their medical and psychosocial needs. 
Ideally, such children and youth should be cared for by their 
families in their home environments. When this type of arrangement 
is not possible, there should be exploration of appropriate, 
alternative noncongregate community-based settings especially 
alternative family homes.); Carrie W. Rishel et al., Preventing the 
Residential Placement of Young Children: A Multidisciplinary 
Investigation of Challenges and Opportunities in a Rural State, 37 
W. Va. Univ. Child. & Youth Servs. Rev. 9 (2014), https://dx.doi.org/10.1016/j.childyouth.2013.11.027. The United States has taken the 
position that even children with intensive behavioral needs have 
better outcomes in family settings. See U.S. Dep't of Justice, 
Investigation of the State of Alaska's Behavioral Health System for 
Children (Dec. 15, 2022), https://www.justice.gov/opa/press-release/file/1558151/download (``With access to timely and appropriate 
services, even children with intensive behavioral health needs and a 
history of congregate facility placement are able to return to or 
remain in family homes where they are more likely to have improved 
clinical and functional outcomes, better school attendance and 
performance, and increased behavioral and emotional strengths 
compared to children receiving care in institutions.'').
---------------------------------------------------------------------------

    Lastly, while this rule's provisions do affirm the child welfare 
system's requirements when it interacts with people with disabilities 
under section 504, the Department's position is that children should 
not be required to enter or remain in the child welfare system solely 
to receive disability-related services and supports. The Department 
notes that child welfare services may have limits based on legal 
requirements in judicial proceedings for child welfare system 
involvement. In the event that long term supports are needed outside of 
foster care, the Department encourages transition planning to assist 
with continuity of supports and services.
Child Welfare Question 2 Regarding Additional Prohibitions
    Comment: The Department requested comment on the list of prohibited 
activities in Sec.  84.60(b), especially on whether commenters believe 
it is complete. Commenters offered specific examples of denial, 
termination, or abridgment of specific services, such as family 
preservation services, that should be prohibited. These are often 
short-term services designed to help families cope with significant 
stresses or problems that interfere with their ability to nurture their 
children. The goal of family preservation services is to maintain 
children with their families and may be distinct from reunification 
services. Several commenters asked that mandatory custody 
relinquishment, a policy in some jurisdictions where parents are 
required to relinquish custody of their child with disabilities so that 
the child may receive services, be added to the list of prohibited 
activities. Several commenters recommended that the language in Sec.  
84.60(b) include all child welfare services. Additionally, multiple 
commenters recommended that paragraph (b)(3) mirror the language of 
Sec.  84.68(b)(1)(iii) in the general prohibitions against 
discrimination section.
    Response: The Department appreciates commenters' identification of 
potential prohibited activities. While paragraph (b) lists additional 
prohibited activities, the list is not intended to be exhaustive. All 
child welfare recipients must comply with Sec.  84.68, which prohibits 
discrimination in all of a recipients' programs and activities 
including aids, benefits, and services provided by the recipient.
    In consideration of comments received, we have added ``any and all 
services provided by a child welfare agency, including but not limited 
to . . .'' to paragraph (b)(2) to underscore that no service may 
discriminate on the basis of disability. We have also added ``family 
preservation services'' to the paragraph, recognizing that these 
services help families avoid separation through loss of custody or 
foster care placement.
    The Department noted in the NPRM that the practice of requiring 
parents to relinquish custody of a child with a disability, so that the 
child may receive disability-related services, is common in some 
jurisdictions. For example, a child welfare agency may require parents 
to relinquish custody so that a minor with a mental illness may receive 
intensive behavioral health supports in a group home, without any 
showing of abuse or

[[Page 40107]]

neglect by the parent required to forfeit parental rights. Requiring a 
child to be removed from the family home, on the basis of the child's 
disability, in order to receive services is discrimination under 
section 504. To clarify the discriminatory nature of this practice, we 
have added a prohibition against it in paragraph (b)(5).
Parenting Evaluation Procedures (Sec.  84.60(c))
    Comments: Several commenters asked for the elimination of the use 
of IQ scores in parental skills evaluation on the basis that IQ may 
also be discriminatory in the context of intellectual disability. 
Additionally, commenters suggested that the language regarding tests 
and assessments in paragraph (c) clarify that no test or assessment 
should be the sole metric by which to evaluate parenting capabilities. 
Further, commenters urged that we clarify that parental evaluations 
should center on assessing parenting capabilities rather than solely 
assessing or diagnosing parental disabilities.
    Response: While the Department declines to prohibit the use of IQ 
testing, we reiterate that parenting evaluations shall not be based 
solely on a single general intelligence quotient or measure of the 
person's disability, rather than their parenting ability. Recognizing 
the critical role of parental evaluation in many child welfare 
services, we have added language to clarify that evaluations and risk 
assessments must be tailored to assess parenting capabilities and 
support needs, rather than solely evaluating a parent's disability. For 
greater clarity about the application of nondiscrimination requirements 
to parenting evaluations, we have revised the text of the section as 
described in the summary of regulatory changes for this section.
    Comment: Many commenters urged parental assessments to consider the 
availability of natural supports, such as friends and family, who can 
help a parent with child-rearing responsibilities. Many other 
commenters cited the importance of considering other supports, such as 
personal assistants, assistive technology, and parent education 
programs, in assessing parental capabilities.
    Response: The Department agrees with commenters that a 
nondiscriminatory assessment of parenting capabilities may need to 
consider natural and paid supports as reasonable modifications that may 
be used in meeting evaluation criteria. For all recipients, the 
determination of whether parents are ``qualified'' must be consistent 
with the definition of ``qualified individual with a disability'' in 
Sec.  84.10 which states that an individual with a disability may meet 
the essential eligibility requirements for programs or services with or 
without reasonable modifications.
    Comment: Other commenters noted that functional parenting 
evaluations should be designed with input from parents with 
disabilities, who are familiar with the supports and adaptations that 
can help a parent succeed.
    Response: The Department supports this suggestion of a potential 
best practice for child welfare recipients but declines to include it 
in the regulation in order to give recipients flexibility in how 
effective functional parenting evaluations are designed. We will 
consider future guidance on how child welfare recipients can 
incorporate the input and perspective of individuals with disabilities 
in their policies and procedures.
Algorithms
    Comment: We received many comments about discrimination in 
algorithms used by child welfare services. Several commenters 
highlighted that the algorithms have the potential to discriminate on 
the basis of disability and other protected classes, and that 
algorithms can be discriminatory on their face or by producing 
unlawfully biased products or outcomes.
    Response: The Department recognizes this rapidly evolving area of 
concern. As noted earlier above, section 504 prohibits a recipient from 
discriminating on the basis of disability, and this encompasses 
discrimination through a recipient's use of algorithms. This protection 
would also extend to a child welfare agency's use of algorithmic 
decision-making tools. We continue to collect information and will 
consider developing additional guidance, consistent with Executive 
Orders related to algorithms and artificial intelligence.\64\ We also 
requested information from the public on this issue above.
---------------------------------------------------------------------------

    \64\ See, e.g., E.O. 14110, Safe, Secure, and Trustworthy 
Development and Use of Artificial Intelligence, 88 FR 75191 (Nov. 1, 
2023).
---------------------------------------------------------------------------

Training
    Comment: Several commenters asked that the rule mandate training 
related to reasonable modifications, effective communications, and/or 
disability culture for child welfare staff and foster families. 
Commenters requested training from the Department for child welfare 
agencies on how to implement policies and practices in compliance with 
this section.
    Response: Due to the administrative challenge of mandating a single 
set of training requirements for all recipients, and because doing so 
is beyond the scope of this rulemaking, we decline to impose specific 
training requirements and instead leave the details of the specific 
administrative procedures for ensuring recipient staff's compliance 
with this section to the discretion of the recipient. However, the 
Department acknowledges that training on compliance with section 504 
and best practices to eliminate barriers for disabled parents and 
children may help agencies comply with the provisions in this final 
rule. The Department remains committed to providing technical 
assistance and education and will consider developing additional 
guidance as needed, in coordination with ACF.
Summary of Regulatory Changes
    For the reasons set forth above and considering comments received, 
we are finalizing Sec.  84.60 with the following changes: First, we are 
revising paragraph (b)(2) to clarify that all services offered or 
provided by the child welfare entity are covered. An additional example 
of ``family preservation'' is added as well as the clarifying phrase, 
``any and all services provided by a child welfare agency, including 
but not limited to. . . .'' The paragraph now reads: ``Deny a qualified 
parent with a disability an opportunity to participate in or benefit 
from any and all services provided by a child welfare agency, including 
but not limited to, family preservation and reunification services 
equal to that afforded to persons without disabilities.'' Second, we 
are adding a new paragraph (b)(5) to clarify that recipients may not 
require, on the basis of a child's disability, custody relinquishment, 
voluntary placement, or other forfeiture of parental rights in order 
for the child to receive services. The new paragraph reads: ``Require 
children, on the basis on the disability, to be placed outside the 
family home through custody relinquishment, voluntary placement, or 
other forfeiture of parental rights in order to receive necessary 
services.''
    Third, we are revising paragraph (c) to clarify that evaluations 
and risk assessments must be tailored to assess parenting capabilities 
and support needs, rather than the disability itself. The new paragraph 
provides that a recipient to which the subpart applies shall establish 
procedures for referring to qualified professionals for evaluation

[[Page 40108]]

those individuals, who, because of disability, need or are believed to 
need adapted services or reasonable modifications. A recipient shall 
also ensure that tests, assessments, and other evaluation tools and 
materials used for the purpose of assessing or evaluating parenting 
ability are based in evidence or research, are conducted by a qualified 
professional and are tailored to assess actual parenting ability and 
specific areas of disability-related needs. Parenting evaluations must 
be fully accessible to people with disabilities and shall not be based 
on a single general intelligence quotient or measure of the person's 
disability, rather than their parenting ability. Assessments of parents 
or children must be individualized and based on the best available 
objective evidence.

Subpart G--General Requirements

    Subpart G contains general prohibitions and eight specific sections 
on various topics.
General Prohibitions Against Discrimination (Sec.  84.68)
    Proposed Sec.  84.68 retained several of the general prohibitions 
in the existing rule and added many provisions for consistency with the 
ADA title II regulations. Comments received on provisions contained in 
Sec.  84.68 are set forth below.
General Prohibitions (Sec.  84.68(a))
    Comment: Many commenters supported inclusion of this section to 
ensure that the section 504 regulations will be enforced in a fair and 
transparent manner. Others asked us to make clear that all of these 
prohibitions apply to the medical treatment section.
    Response: We appreciate commenters' support for this provision. In 
fact, the general prohibitions in this section apply throughout the 
rule and we have added a statement to that effect specifically in the 
medical treatment section.
Meaning of Solely (Sec.  84.68(a))
    In its section 504 NPRM, the Department proposed to add ``solely'' 
in the language stating section 504's general prohibition against 
discrimination at Sec.  84.68(a). That word is not included in the 
parallel provision of the Department's existing section 504 rule at 
Sec.  84.4(a). The Department noted that this addition was a technical 
change to make the regulation's language consistent with the general 
nondiscrimination language of the statute, and that the language does 
not exclude the forms of discrimination delineated throughout the rule.
    Comments: A number of commenters, including disability rights and 
civil rights legal organizations, a State Attorney General's office, 
and a member of Congress, expressed concern with the Department's 
proposed approach. Some asked that, because the word ``solely'' in 
section 504 has become a battleground in court cases that threaten to 
limit disability rights protections, HHS should provide additional 
regulatory language and guidance to reflect case law, statutory 
purpose, and congressional action, and to clarify that ``solely'' does 
not limit prohibited conduct to intentional discrimination. Commenters 
noted that the Department's preamble language is helpful but suggested 
that the Department should include regulatory text to ensure that its 
interpretation has the full force and effect of law. Some commenters 
referenced a brief filed by the United States in the Supreme Court \65\ 
and, using that brief as a template, suggested that the Department 
should state that ``solely on the basis of disability'' refers to a 
causal relationship between the discrimination alleged and the 
disability, and includes discrimination that results from ``benign 
neglect,'' indifference, and unintentional disparate-impact 
discrimination.
---------------------------------------------------------------------------

    \65\ U.S. Dep't of Justice, Brief for the United States as 
Amicus Curiae, CVS Pharmacy, Inc. v. Doe, No. 20-1374 (U.S. Oct. 28, 
2021).
---------------------------------------------------------------------------

    Response: The Department agrees that the addition of the word 
``solely'' in Sec.  84.68(a) should not limit section 504 to 
intentional discrimination claims, and the Department did not intend to 
impose such a limitation in the proposed rule. The Department 
understands commenters' concern that making that change in the manner 
intended by the Department without including language in the regulatory 
text itself invites confusion and possible misinterpretation. We want 
to ensure the addition of the word ``solely'' does not alter the 
Department's 46-year history of interpretation of the reach of its 
section 504 rule.
    There is considerable support for the view that section 504 is not 
limited to intentional discrimination. Almost forty years ago, the 
Supreme Court ``assume[d] without deciding'' that section 504 prohibits 
both intentional discrimination based on disability, as well as actions 
that have a discriminatory impact on people with disabilities, 
notwithstanding a lack of invidious intent.\66\ The Court in Alexander 
v. Choate looked to the statements by members of Congress at the time 
of section 504's enactment and the experience of Federal agencies that 
found that some types of discrimination against people with 
disabilities, like those resulting from architectural barriers, were 
``primarily the result of apathetic attitudes rather than affirmative 
animus.'' \67\ The Court noted that ``[i]n addition, much of the 
conduct that Congress sought to alter in passing the Rehabilitation Act 
would be difficult if not impossible to reach were the Act construed to 
proscribe only conduct fueled by a discriminatory intent.'' \68\ In the 
years following Choate, the Circuits have uniformly agreed that the 
failure to reasonably accommodate the disability of an otherwise 
qualified individual is a form of discrimination prohibited by section 
504,\69\ and a majority of those courts have also applied or expressed 
support for a disparate impact theory as well.\70\
---------------------------------------------------------------------------

    \66\ Alexander v. Choate, 469 U.S. 287, 295 (1985) 
(``Discrimination against the handicapped was perceived by Congress 
to be most often the product, not of invidious animus, but rather of 
thoughtlessness and indifference--of benign neglect.'').
    \67\ Id. at 296.
    \68\ Id. at 296-97.
    \69\ See, e.g., Wynne v. Tufts Univ. Sch. of Med., 932 F.2d 19, 
23-26 (1st Cir. 1991); Henrietta D. v. Bloomberg, 331 F.3d 261, 276-
77 (2d Cir. 2003); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 
306 (3d Cir. 1999); Basta v. Novant Health Incorp., 56 F.4th 307, 
315 (4th Cir. 2022); J.W. v. Paley, 81 F.4th 440, 450 (5th Cir. 
2023); Doe v. BlueCross BlueShield of Tenn., Inc., 926 F.3d 235, 243 
(6th Cir. 2019); Washington v. Indiana High Sch. Athletic Ass'n, 
Inc., 181 F.3d 840, 847 (7th Cir. 1999); Mershon v. St. Louis Univ., 
442 F.3d 1069, 1076-77 (8th Cir. 2006); A.G. v. Paradise Valley 
Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016); 
Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City, 685 
F.3d 917, 919 (10th Cir. 2012) (Gorsuch, J.); L.E. by and through 
Cavorley v. Superintendent of Cobb Cty. Sch. Dist., 55 F.4th 1296, 
1301 (11th Cir. 2022); Chenari v. George Washington Univ., 847 F.3d 
740, 746-47 (D.C. Cir. 2017).
    \70\ See, e.g., Ruskai v. Pistole, 775 F.3d 61, 78-79 (1st Cir. 
2014); Nathanson v. Medical Coll. of Pa., 926 F.2d 1368, 1384 (3d 
Cir. 1991); Brennan v. Stewart, 834 F.2d 1248, 1261-1262 (5th Cir. 
1988); McWright v. Alexander, 982 F.2d 222, 228-229 (7th Cir. 1992); 
Mark H. v. Lemahieu, 513 F.3d 922, 936-937 (9th Cir. 2008); Robinson 
v. Kansas, 295 F.3d 1183, 1187 (10th Cir. 2002), cert. denied, 539 
U.S. 926 (2003); American Council of the Blind v. Paulson, 525 F.3d 
1256, 1268-1269 (D.C. Cir. 2008). But see Doe v. BlueCross 
BlueShield of Tenn., Inc., 926 F.3d 235, 241 (6th Cir. 2019).
---------------------------------------------------------------------------

    The Department also finds support for this approach in the recent 
position of the United States its amicus brief in the Supreme Court in 
CVS Pharmacy, Inc. v. Doe.\71\ That brief notes that the language in 
section 504 is written in the passive voice and makes no reference to 
any specific actor and accordingly no reference to any actor's intent. 
Thus, the use of ``solely'' ``is most naturally read to focus on the 
causal link between the

[[Page 40109]]

plaintiff's disability and particular undesired effects, rather than on 
the motives or intent of the defendant.'' \72\
---------------------------------------------------------------------------

    \71\ U.S. Dep't of Justice, Brief for the United States as 
Amicus Curiae, CVS Pharmacy, Inc. v. Doe, No. 20-1374 (U.S. Oct. 28, 
2021).
    \72\ Id. at 6-7.
---------------------------------------------------------------------------

    In determining the Department's interpretation of the meaning of 
``solely,'' the Department looks to the types of discriminatory 
practices that have been part of the Department's section 504 
regulation since 1977, including intentional discrimination, as well as 
practices that have discriminatory effects. Thus, the section 504 
regulation would cover the denial of health care services to a patient 
who uses a wheelchair and is unable to reach their doctor's office 
because it is only accessible by stairs, or a person who is deaf who is 
unable to communicate his symptoms to emergency room personnel at the 
county hospital because of the absence of sign language interpreters.
    The Department finds compelling the position taken by the United 
States in its CVS amicus brief which focused on the causal link between 
the plaintiff's disability and nature of the alleged discriminatory 
practice, ``rather than on the motives or intent of the defendant.'' 
\73\ The United States provided the following explanation in its brief 
in CVS Pharmacy, Inc. v. Doe:
---------------------------------------------------------------------------

    \73\ Id.

    If a pharmacy requires customers to fill out a paper form to 
obtain in-network prices for a drug, a blind customer who is 
otherwise eligible for in-network prices but is unable to complete 
the form is ``being denied the benefit solely by reason of her 
disability.'' The causal link that the statute requires is a link 
between the customer's disability and her lack of access to program 
benefits. That causal connection can exist, and can reliably be 
established, even if the pharmacy adopted the paper-form requirement 
for reasons unrelated to its exclusionary effect on blind 
persons.\74\
---------------------------------------------------------------------------

    \74\ Id. at 14.

    The Department shares this view as to the meaning of ``solely'' in 
the section 504 regulation. In light of this explanation of our 
interpretation of the word ``solely,'' as discussed in the NPRM, we 
find it unnecessary to make any changes in the regulatory text.
Specific Prohibitions
    Proposed Sec.  84.68(b)(1)(i) through (vii) listed a series of 
prohibitions that apply to recipients directly or through contractual, 
licensing, or other arrangements. Discussed below are comments that we 
received on the provisions in this section.
Contractual Arrangements (Sec.  84.68(b)(1)(i))
    This section states that a recipient, in providing any aid, 
benefit, or service, may not, directly or through contractual, 
licensing, or other arrangement, on the basis of disability, deny a 
qualified individual with a disability the opportunity to participate 
in or benefit from the aid, benefit, or service.
    Comment: Several commenters asked about the applicability of 
section 504 when a recipient contracts out certain activities to 
another entity and the activities of that other entity are not in 
compliance with section 504. Some requested that we make it clear that 
recipients cannot contract away their obligations when overseeing large 
programs such as Medicaid. Others asked us to clarify that recipients 
have affirmative responsibilities to ensure nondiscrimination by 
agencies with whom they contract.
    Response: We proposed in Sec.  84.68(b)(1) to make clear that when 
a recipient contracts out activities, that recipient remains 
responsible for ensuring that the entity with whom it contracts 
complies with section 504. The size of that entity is irrelevant; the 
requirements are the same. For more information about Federal financial 
assistance and contracts, please see the discussion of Federal 
financial assistance in Sec.  84.10, the Definitions section.
Significant Assistance (Sec.  84.68(b)(1)(v))
    We proposed in this section to provide that a recipient may not aid 
or perpetuate discrimination by providing significant assistance to an 
entity that discriminates on the basis of disability in providing any 
aid, benefit, or service to beneficiaries of the recipient's program.
    Comment: A commenter noted that many recipients of Federal 
financial assistance from the Department provide significant financial 
support to entities that engage in unlawful disability-based 
discrimination. The commenter requested additional guidance on the 
recipient's obligations in this instance.
    Response: Section 84.68(b)(1)(v) makes clear that recipients retain 
responsibility for ensuring that entities to which they provide 
significant assistance comply with section 504.
Methods of Administration (Sec.  84.68(b)(3))
    This section provides that a recipient may not, directly or through 
contractual or other arrangements, utilize criteria or methods of 
administration (1) that have the effect of subjecting qualified 
individuals with disabilities to discrimination on the basis of 
disability or (2) that have the purpose or effect of defeating or 
substantially impairing accomplishment of the objectives of the program 
or activity with respect to individuals with disabilities or (3) that 
perpetuate the discrimination of another recipient if both recipients 
are subject to common administrative control or are agencies of the 
same State.
    Comments: Many commenters strongly supported this section. One 
commenter noted the importance of this prohibition as applied to 
clinical trial participants who should be provided with continuing care 
and, where possible, to continued access to study products. That 
commenter said that methods of allocation of those products and scarce 
resources should be subject to this provision. Another commenter said 
that they strongly support Sec.  84.68(b)(3) because it emphasizes the 
prohibition of discriminatory methods in the allocation of scarce 
medical resources. An organizational commenter said that this 
provision, along with the reasonable modifications section in Sec.  
84.68(b)(7), represent commendable steps toward safeguarding the rights 
of individuals in allocating resources. Another commenter mentioned 
that this regulation should prohibit the provision of separate gowns 
and visiting procedures for individuals with substance use disorders.
    Comment: We appreciate the commenters' support and agree with the 
importance of applying the prohibition against methods of 
administration that discriminate in the clinical studies field as well 
as throughout this rule. With regard to the organizational commenter 
who suggested that there not be separate gowns and visiting procedures 
for individuals with substance use disorders, the Department declines 
to make that change because under certain circumstances, using 
different gowns or visiting procedures may not constitute 
discrimination. However, we note that pursuant to Sec.  84.68(b)(7), 
recipients must make reasonable modifications in policies, practices, 
or procedures when necessary to avoid discrimination on the basis of 
disability, unless the recipient can demonstrate that making the 
modifications would fundamentally alter the nature of the program or 
activity.
Licensing and Certification (Sec.  84.68(b)(6))
    This section states that a recipient may not administer a licensing 
or certification program in a manner that subjects qualified 
individuals with disabilities to discrimination on the basis of 
disability, nor may a recipient establish requirements for the programs 
or activities of licensees or certified entities that subject qualified 
individuals with disabilities to

[[Page 40110]]

discrimination on the basis of disability, although the programs or 
activities that are licensed or certified by the recipient are not, by 
themselves, covered by this part.
    Comment: A commenter said that many health care licensing entities 
discriminate against individuals who use prescribed medicines to treat 
SUD.
    Response: Individuals must generally be permitted to take licensing 
or certification exams if they are qualified as defined in Sec.  84.10. 
That section defines a qualified individual with a disability as an 
individual who, with or without reasonable modifications, removal of 
barriers, or provision of auxiliary aids and services, meets the 
essential eligibility requirements to take the exam. In the event of 
noncompliance, individuals can file complaints with the Department if 
they see discrimination occurring even if they have not personally 
experienced discrimination. Procedures for filing complaints are set 
forth in Sec.  84.98.
Reasonable Modifications (Sec.  84.68(b)(7))
    Section 84.68(b)(7) states that recipients must make reasonable 
modifications in policies, practices, or procedures when such 
modifications are necessary to avoid discrimination on the basis of 
disability, unless the recipient can demonstrate that making the 
modifications would fundamentally alter the nature of the program or 
activity.
    Most of the comments that we received on this section fall into one 
of two categories: masks and other infection mitigation measures and 
supported decision-making. We discuss each topic separately.
Masks and Other Infection Mitigation Measures
    Comment: We received many comments on this issue. Multiple 
commenters said that the discontinuation of some measures used to 
prevent COVID-19 discriminates against those individuals with 
disabilities who are particularly vulnerable to severe disease. Many 
commenters only discussed masks and many commenters requested that the 
Department provide clear guidance as to what is required with regard to 
masks and other infection mitigation measures. Various commenters 
described the response received when they asked health care staff to 
wear masks, including having their requests denied, and being met with 
shaming. The Department also received a few comments from individuals 
with hearing impairments who said that the masks discriminated against 
them because they prevented lip reading.
    Multiple commenters argued that the failure to provide mitigation 
measures constitutes a violation of Sec.  84.56, which prohibits 
discrimination in medical treatment. Several commenters suggested 
possible reasonable modifications, including allowing individuals at 
risk of infection to wait in their cars for appointments, providing 
separate waiting rooms and separate entrances, scheduling appointments 
before or after hours or as the first appointment of the day, providing 
alternate spaces to wait for appointments, and using telehealth where 
appropriate.
    Response: We appreciate the many commenters who shared their 
experiences. Regarding infection mitigation measures in general, 
individuals may be able to obtain reasonable modifications to policies, 
practices, and procedures such as those mentioned above if such 
modifications are necessary to avoid discrimination on the basis of 
disability, unless the recipient can demonstrate that the modifications 
would fundamentally alter the nature of the program or activity.
Supported Decision-making
    Comments: The Department received many comments, mostly from 
disability rights organizations, that were appreciative and supportive 
of the preamble discussion of the reasonable modification of supported 
decision-making. Commenters pointed out that individuals with 
disabilities are routinely subjected to overly restrictive 
guardianships where someone appointed by a judge makes decisions on 
behalf of the individual with a disability. Many noted that supported 
decision-making allows the individual with disabilities to understand, 
make, and communicate their preferences and choices in consultation 
with their supporter. Others described supported decision-making as a 
powerful tool that allows for self-determination. One commenter 
mentioned that the implementation of supported decision-making 
processes does not pose an undue obstacle for recipients but, rather, 
it increases a person's ability to participate through informed choice.
    Several commenters asked that supported decision-making be 
mentioned in the preamble to the medical treatment section and 
throughout the preamble, particularly as it relates to consent, while 
others requested that it be included in the text of the regulation.
    One organization requested that the Department develop training 
materials so that supported decision-making is more accessible and 
affordable for recipients. They suggested that the training materials 
address privacy issues and the different ways that a recipient can 
recognize a supported decision-maker as the personal representative or 
otherwise authorized third party who can directly receive information. 
They also suggested development of a template for use by recipients.
    Response: We appreciate the uniformly positive input that we 
received on the reasonable modification of supported decision-making. 
The Department has explained how the concept of supported decision-
making may apply to medical treatment in the discussion of medical 
treatment and in other places as appropriate. The preamble to Sec.  
84.56(c), the consent paragraph in the medical treatment section, 
discusses examples of how supported decision-making applies to medical 
treatment decisions, noting that it can be crucial in ensuring that 
individuals with disabilities are giving informed consent. Although we 
generally agree with the points made by the commenters in support of 
supported decision-making, we decline to add mention of this reasonable 
modification in the regulatory text of the consent provision. We note 
that the reasonable modification provision is in subpart G, General 
Requirements and, as such, already applies to the consent provision. It 
would be duplicative to add another reference to the reasonable 
modification concept in other provisions of the final rule. 
Accordingly, we are finalizing Sec.  84.68(b)(7) as proposed without 
modifications.
Summary of Regulatory Changes
    For the reasons set forth above and considering comments received, 
we are finalizing Sec.  84.68 as proposed with no modifications.
Illegal Use of Drugs (Sec.  84.69)
    In Sec.  84.69(a)(1), we proposed to state that except as provided 
in paragraph (b), this part does not prohibit discrimination based on 
current illegal use of drugs.
    In Sec.  84.69(a)(2), we proposed to prohibit discrimination based 
on illegal use of drugs against an individual who is not engaging in 
current illegal use of drugs and who has successfully completed a 
supervised drug rehabilitation program or has otherwise been 
rehabilitated successfully; is participating in a supervised 
rehabilitation program; or is erroneously regarded as engaging in such 
use.

[[Page 40111]]

    In Sec.  84.69(b), we proposed to prohibit a recipient from 
excluding an individual based on illegal use of drugs from the benefit 
of programs and activities providing health services and services 
provided under subchapters I, II, and III of the Rehabilitation Act, 
which includes, among other things, vocational rehabilitation programs. 
This provision comes directly from the statute, 29 U.S.C. 705(20)(C). 
This provision differs from a similar provision in the ADA title II 
statute and regulations, which prohibit denial of health services or 
services provided in connection with drug rehabilitation, at 42 U.S.C. 
12210(C) and 28 CFR 35.131(b).
    Proposed Sec.  84.69(c)(1) addressed drug testing. It proposed to 
make clear that this part does not prohibit a recipient from adopting 
or administering reasonable policies or procedures including drug 
testing designed to ensure that an individual who formerly engaged in 
illegal use of drugs is not now engaging in illegal use of drugs.
    In Sec.  84.69(c)(2), we proposed to provide that nothing in this 
section shall be construed to encourage, prohibit, restrict, or 
authorize the conduct of testing for the illegal use of drugs.
    The comments and our responses regarding Sec.  84.69 are set forth 
below.
    Comment: Many commenters had concerns about this proposed section. 
As discussed under the definition of ``illegal use of drugs'' in Sec.  
84.10, they said that the regulation's definition of ``current'' 
represents an outdated view of substance use disorder. Similarly, they 
believe that the definition of a ``supervised drug rehabilitation 
program'' in Sec.  84.69(a)(2) has changed over the years. They urged 
that the term be interpreted broadly to include treatment for a 
substance use disorder received under the supervision of a medical 
provider or licensed professional. They noted that since the 
Rehabilitation Act was enacted in 1973, treatment for individuals with 
SUD has changed radically and no longer comports with how many 
individuals receive their treatment. Treatment is often provided in 
primary care, psychology, and other clinical practices as well as, 
increasingly, online. Some of these are not stand-alone drug 
rehabilitation programs, and many involve continuation of treatment on 
an outpatient basis. Commenters asked that we make explicit that the 
term ``supervised rehabilitation program'' means any setting where SUD 
treatment is received under the supervision of a medical provider or 
other licensed professional. Some suggested that the term be defined in 
the regulation. Others recommended that the preamble make it clear that 
the term is to be read broadly and inclusively, reflecting modern day 
SUD treatment.
    Response: Congress has not amended 29 U.S.C. 705(20)(C)(ii), on 
which the current regulatory text is closely modelled. Because the 
Department remains bound by the current statutory text, we decline to 
revise the regulatory language. Although the Department agrees that 
treatment for SUD has evolved since the enactment of the Rehabilitation 
Act, we agree with commenters that the best reading of the statutory 
terms ``supervised drug rehabilitation program'' and ``supervised 
rehabilitation program'' generally encompass these modern day 
treatments of substance use disorders.
    Comment: Many commenters expressed concerns about Sec.  
84.69(b)(2). That section states that a drug rehabilitation program may 
deny participation to individuals who engage in current illegal use of 
drugs while they are in the program. As with the meaning of 
``supervised rehabilitation program'' and ``current'' illegal use of 
drugs, they believe this section is similarly outdated and does not 
comport with modern understanding of drug treatment and recovery. 
Several commenters noted the irony that the provision allows health 
care providers to deny treatment to an individual because they are 
experiencing symptoms of the very disease for which they are seeking 
help. Some commenters suggested that before denying entrance to a 
program, recipients should be required to make an individualized 
determination about whether participation in the program is warranted.
    Response: Section 504 provides that the term ``individual with a 
disability'' ``does not include an individual who is currently engaging 
in illegal use of drugs, when a covered entity acts on the basis of 
such use.'' \75\ We have retained this language, consistent with the 
statutory language.
---------------------------------------------------------------------------

    \75\ 29 U.S.C. 705(20)(C).
---------------------------------------------------------------------------

    Comment: Several commenters expressed concerns about discriminatory 
treatment of individuals with SUD, whether the substances are legal or 
illegal, who are being denied myriad health services. Many provided 
examples of individuals who were excluded from, for example, nursing 
homes and emergency rooms at hospitals because of SUD as well as 
denials of life-saving surgery and organ transplantation. Others said 
that mental health centers sometimes have blanket policies of denying 
treatment to all individuals with SUD.
    Response: A denial of treatment to individuals with SUD would 
violate the medical treatment requirement, Sec.  84.56(b)(1), if it is 
based on biases or stereotypes or any of the other prohibited bases 
listed in that paragraph. It would also violate Sec.  84.56(b)(2), 
denial of treatment for a symptom or condition separate from an 
underlying disability, if a recipient is refusing to provide admission 
or treatment because of the underlying disability as an individual with 
SUD. If the denial of treatment was based on or motivated by the fact 
that the individual is currently engaged in illegal use of drugs, it 
would violate Sec.  84.69(b), which provides that an individual 
currently engaged in illegal use of drugs shall not be excluded from 
the benefits of health services on the basis of their illegal use of 
drugs if he or she is otherwise entitled to such services.
    However, that section must be read in conjunction with Sec.  84.53 
which provides in this final rule that recipients who operate any type 
of health care facility may not discriminate in admission or treatment 
against an individual with a substance or alcohol use disorder. This 
prohibition applies to all individuals with SUD, whether engaged in 
illegal use of drugs or not. See Sec.  84.69(b), prohibiting the denial 
of health services and services provided under the Rehabilitation Act 
and discussion of Sec.  84.53 for more information about that section.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.69 as proposed with no 
modifications.
Maintenance of Accessible Features (Sec.  84.70)
    This proposed section tracks the ADA title II and title III 
regulations on maintenance of accessible features.
    Proposed Sec.  84.70(a) required that recipients maintain in 
operable working condition those features of facilities and equipment 
that are required to be readily accessible to and usable by persons 
with disabilities by section 504 or this part.
    Proposed Sec.  84.70(b) stated that the section does not prohibit 
isolated or temporary interruptions in service or access due to 
maintenance or repairs.
    Proposed Sec.  84.70(c) stated that if the 2010 Standards reduce 
the technical requirements or the number of required accessible 
elements below the number required by UFAS, the technical requirements 
or the number of accessible elements in a facility subject to this part 
may be reduced in

[[Page 40112]]

accordance with the requirements of the 2010 Standards.
    The comments and our responses regarding Sec.  84.70 are set forth 
below.
    Comment: We received many comments, including from several 
organizations representing individuals with disabilities, requesting 
that this section be revised to encompass all accessibility features 
and disability modifications, including auxiliary aids and services. 
Commenters also requested a statement in the regulation that repeated 
mechanical failures for any reason constitutes a violation of section 
504.
    One commenter expressed concerns that the rule appears to focus 
only on mechanical failures. The commenter urged us to emphasize that 
the maintenance requirement applies not only to mechanical failures but 
also to interruptions in service or access caused by weather events 
such as fires, floods, and excessive heat.
    Still another commenter said that the regulation should address 
recipients' responsibilities to continue to provide access to services 
while interruptions persist. The commenter suggested that language be 
added to the text of the regulation to clarify that whenever a 
temporary interruption might deny individuals with disabilities' access 
to programs and activities, the recipient must provide advance notice 
of the temporary interruption and must also provide reasonable 
modifications to individuals with disabilities until the maintenance or 
repairs are resolved.
    Response: The Department appreciates all the commenters' feedback. 
However, we respectfully disagree with the commenters who suggested 
that the maintenance requirement be extended to include auxiliary aids 
and services. Requirements concerning auxiliary aids are contained in 
Sec.  84.77(b) of the communications subpart. That section requires 
that recipients provide auxiliary aids and services where necessary to 
afford an equal opportunity to participate in a program or activity. A 
recipient would likely be in violation of that section if it were to 
fail to provide an appropriate auxiliary aid or service or if it were 
to provide one that was not in working order. Accordingly, it is not 
necessary to add a reference to auxiliary aids and services in Sec.  
84.70.
    Comment: Some commenters requested a statement in the rule that 
repeated mechanical failures for any reason violate section 504.
    Response: Section 84.70(b) states that isolated or temporary 
interruptions in access or service would not be considered violations 
of this part. Implicit in that statement is that repeated interruptions 
could still violate the requirements of this part. Allowing 
obstructions or ``out of service'' equipment to persist beyond a 
reasonable period of time would violate this part, as would repeated 
mechanical failures due to improper or inadequate maintenance.
    In response to the concern that the regulation is focused on 
mechanical failures and does not recognize other causes for temporary 
interruptions such as those that are weather-related, we note that the 
preamble to the proposed rule makes clear that the requirement goes 
beyond mechanical failures. The preamble gives the following examples 
of situations that would violate the rule and that do not involve 
mechanical failures: storing excess furniture or supplies in the 
larger, accessible toilet stall; putting potted plants in front of 
elevator buttons; and placing ploughed snow in an accessible parking 
spot.
    With regard to the commenter who asked that the rule require 
advance notice of temporary interruptions and provision of reasonable 
modifications in such instances, we agree that reasonable modifications 
can be requested in the event of temporary interruptions. Section 
84.68(b)(7) requires that recipients provide reasonable modifications 
whenever necessary to provide an equal opportunity to benefit from its 
programs or activities unless the recipient can demonstrate that making 
the modifications would result in a fundamental alteration of the 
program or activity. For example, an individual with a mobility 
disability arrives at a building for a meeting with someone whose 
office is on the fifth floor and discovers that the one accessible 
elevator is out of service. A reasonable modification might be for the 
person on the fifth floor to come downstairs and meet the individual 
somewhere on the ground floor or in a nearby building. Providing notice 
of a temporary interruption whenever possible is a best practice, but 
not a requirement of section 504. For example, if a recipient knows 
that an elevator will not be working during a certain time in the 
future, it would be a good practice to put up a sign to that effect. 
However, there may be times when advance notice is not possible such as 
when an individual with a disability attempts to use a wheelchair lift 
and a mechanical problem is discovered. In the event the recipient 
knows in advance that there will be a temporary interruption in 
service, is aware that an individual with a disability is scheduled to 
come to the building, and has that person's contact information, it 
would be helpful for the recipient to notify that individual in 
advance. However, we decline to revise the rule to require such notice 
since it is not always possible to do.
Summary of Regulatory Changes
    For the reasons set forth above we are finalizing Sec.  84.70 as 
proposed with no modifications.
Retaliation or Coercion (Sec.  84.71)
    This section is identical to the retaliation provision in the ADA 
title II regulations. Section 84.71(a) proposed to prohibit a recipient 
from discriminating against any individual because that individual has 
opposed any act or practice made unlawful by this part, or because that 
individual made a charge, testified, assisted, or participated in any 
manner in an investigation, proceeding, or hearing under section 504 or 
this part.
    Section 84.71(b) proposed to prohibit a recipient from coercing, 
intimidating, threatening, or interfering with any individual in the 
exercise or enjoyment of, or on account of their having exercised or 
enjoyed, or on account of their having aided or encouraged any other 
individual in the exercise or enjoyment of any right granted or 
protected by section 504.
    This provision protects not only individuals who allege a violation 
of section 504 or this part, but also any individuals who support or 
assist them. This section applies to all investigations or proceedings 
initiated under section 504 or this part without regard to the ultimate 
resolution of the underlying allegations. The proposed regulation had 
another prohibition against intimidatory or retaliatory acts. Section 
84.98 adopts the procedures of title VI of the Civil Rights Act of 
1964. Section 80.7 of the title VI regulations (45 CFR 80.7) contains a 
provision that is similar to Sec.  84.71(a) but includes a mandate that 
the identity of complaints be kept confidential except to the extent 
necessary to carry out the purposes of this part.
    The comments and our responses to them regarding Sec.  84.71 are 
set forth below.
    Comment: We received supportive comments on this section. One 
disability rights organization said that retaliation should be 
prohibited in the strongest terms possible because it is very common 
and very difficult to prove. Several individuals described their 
experiences with retaliation when their complaints about alleged 
discrimination were ignored.
    Response: We appreciate the commenters' support of the section and

[[Page 40113]]

agree that protection against retaliation is crucial. We note that the 
final rule retains in subpart K the adoption of title VI procedures. As 
noted above, those procedures include another prohibition against 
retaliation.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.71 as proposed without 
modification.
Personal Services and Devices (Sec.  84.72)
    Proposed Sec.  84.72 was identical to the provision in the ADA 
title II regulations, 28 CFR 35.135. It stated that this rule does not 
require recipients to provide individuals with disabilities with 
personal devices, such as wheelchairs; individually prescribed devices 
such as prescription eyeglasses or hearing aids; readers for personal 
use of study; or services of a personal nature, including assistance in 
eating, toileting, or dressing. The NPRM also noted that where personal 
services are customarily provided as part of a recipient's programs or 
activities, then these personal services should also be provided to 
persons with disabilities.\76\
---------------------------------------------------------------------------

    \76\ 88 FR 63478.
---------------------------------------------------------------------------

    The comments and our responses to them regarding Sec.  84.72 are 
set forth below.
    Comment: Several commenters expressed concern that this provision 
was written so broadly that it would interfere with the requirements in 
other parts of the proposed rule, including the requirement to provide 
reasonable assistance to persons using accessible medical equipment, 
for example, including helping a person who uses a wheelchair to 
transfer from their wheelchair to the exam table or diagnostic chair, 
as well as the variety of obligations to provide auxiliary aids. An 
organization representing persons who need communication tools and 
supports noted that devices used for communication are often not 
treated as covered auxiliary aids or services but as personal devices 
and, as a result, are not provided to persons with communication needs 
who require them to receive, for example, health care not as effective 
as that provided to others. This comment suggested adding regulatory 
text that, where personal devices and services are customarily provided 
as part of a recipient's program or activities, then these personal 
devices and services should also be provided to persons with 
disabilities.
    Response: The Department is aware that many programs funded by the 
Department include, as a regular feature of the program, the provision 
of personal care services. Hospitals, nursing homes, child welfare 
services, and home and community-based services (HCBS), by their very 
nature, routinely provide assistance in eating, dressing, and 
toileting, the type of personal care services specifically not required 
by this provision. The Department reiterates its statement from the 
NPRM that where personal devices and services are customarily provided 
as part of a recipient's program or activities, then these personal 
devices and services should also be provided to persons with 
disabilities. However, it is important to preserve parity with the ADA 
regulations given Congress's intent that the ADA and section 504 be 
interpreted consistently and to reduce confusion for both recipients 
and individuals with disabilities. Therefore, the Department declines 
to add this statement to the regulatory text but emphasizes that this 
provision should not be interpreted as a blanket allowance for 
recipients to deny personal devices and services to individuals with 
disabilities that the recipient would customarily provide to 
individuals without disabilities as part of its programs and 
activities. The supplementary information accompanying DOJ's title III 
ADA regulation includes this interpretation as well.\77\
---------------------------------------------------------------------------

    \77\ 28 CFR part 36, appendix C (1991) (addressing Sec.  36.306) 
(``Of course, if personal services are customarily provided to the 
customers or clients of a public accommodation, e.g., in a hospital 
or senior citizen center, then these personal services should also 
be provided to persons with disabilities . . .'').
---------------------------------------------------------------------------

    Comment: Another commenter on Sec.  84.72 noted that the rule 
should be changed to make clear that recipients cannot require persons 
with disabilities to be separated from their own personal devices and 
to then function without their devices, for example, prohibiting 
persons who use wheelchairs from being told that they cannot take their 
own wheelchairs with them when being transported to the hospital.
    Response: The Department does not believe it is necessary to add 
regulatory text to address this situation, but notes that there are 
circumstances in which recipients are prohibited from separating 
persons with disabilities from their personal devices that they need to 
function. For example, an ambulance company that receives Federal funds 
from HHS is called to the scene of an automobile accident and is going 
to take a person with a disability who uses a wheelchair to the 
emergency room of a hospital. The ambulance service, a recipient 
subject to the general prohibitions against excluding individuals with 
disabilities in Sec.  84.68, generally cannot pick up the person and 
leave the wheelchair, an expensive piece of accessible personal 
equipment, behind at the scene of the accident and expect the person 
with the disability to recover their wheelchair. The Department 
recognizes that there may be room or other limitations in the ambulance 
itself, but that does not relieve the ambulance service of any 
responsibility to assist in returning the wheelchair to the person with 
a disability, which may be needed at the site where the person with the 
disability is being transported. As a recipient, the ambulance service 
is subject to all of the general prohibitions in Sec.  84.68 which 
states that individuals with disabilities may not be excluded from 
participation in or be denied the benefits of their programs or 
activities. In situations like this, the ambulance company can have a 
policy or agreement in place to deal with the transport of a wheelchair 
that might not fit into the ambulance itself.
    Similarly, in situations where a person with a speech disability 
enters a hospital or a nursing home with their personal communication 
device that they use because they cannot rely on speech alone to be 
heard and understood by others, the recipient hospital or nursing home 
must not separate the person from their device, which would deprive the 
person with a disability of the ability to communicate with others. The 
Department notes that DOJ has followed a similar policy in addressing 
concerns where, for example, police may make an arrest of a wheelchair 
user and must transport both the person and their accessibility 
equipment to the police station.
Summary of Regulatory Changes
    For the reasons set forth above and considering comments received, 
we are finalizing Sec.  84.72 as proposed with no modifications.
Service Animals (Sec.  84.73)
    Proposed Sec.  84.73 addressed service animals and tracks the ADA 
title II regulations.\78\ Proposed Sec.  84.73(a) stated that generally 
recipients shall modify its policies, practices, or procedures to 
permit the use of a service animal by an individual with a disability. 
The rule, in proposed Sec.  84.10, defined a service animal as any dog 
that is individually trained to do work or perform tasks for the 
benefits of an individual with a disability.
---------------------------------------------------------------------------

    \78\ 28 CFR 35.136.
---------------------------------------------------------------------------

    Proposed Sec.  84.73(b) contained detailed requirements for 
recipients and

[[Page 40114]]

handlers of service animals, including when a recipient may ask an 
individual with a disability to remove the service animal from the 
premises (Sec.  84.73(b)), that the service animal shall be under the 
control of its handler (Sec.  84.73(d)), that the recipient is not 
responsible for the care and supervision of a service animal (Sec.  
84.73(e)), that the recipient shall not ask about the nature or extent 
of a person's disability, but may ask if the animal is required because 
of a disability and what work or task the animal has been trained to 
perform (Sec.  84.73(f)), that individuals with disabilities shall be 
permitted to be accompanied by their service animals in all areas of 
the recipient's facilities where members of the public go (Sec.  
84.73(g)), and that recipients are not allowed to require an individual 
with a disability to pay a surcharge (Sec.  84.73(h)). Proposed Sec.  
84.73(i) stated that a recipient shall make reasonable modifications in 
policies, practices, or procedures to permit the use of a miniature 
horse by an individual with a disability and it provided assessment 
factors to determine whether reasonable modifications can be made to 
allow a miniature horse into a specific facility.
    The comments and our responses regarding Sec.  84.73 are set forth 
below.
    General comment: The comments that the Department received on Sec.  
84.73 were uniformly supportive. Commenters noted that DOJ's ADA 
regulations were crafted through years of experience and a duly 
compassionate outlook and that having the same service animal 
regulation for section 504 as for title II of the ADA will provide 
necessary clarity for persons who work with service animals and health 
care and social service providers that receive Federal funding.
    Comment: Some commenters recommended adding the example of 
``carrying an individual's speech-generating device'' as an example of 
the type of work or service that a service animal could be trained to 
do.
    Response: The Department agrees that service animals may be used to 
assist persons with communication disabilities and that recipients 
should be made aware of this possibility so that they do not 
unnecessarily inquire of persons with communication disabilities about 
the nature of the work that the service animal performs for the person. 
However, the Department is not adding language to the regulatory text, 
because adding phrases here that are not found in DOJ's ADA regulations 
on service animals may cause confusion.
    Comment: The Department received several comments on the use of 
service animals in health care settings. An entity that operates a 
hotline providing guidance to service animal handlers and to recipients 
noted that over 70% of their callers addressed access challenges in 
health care facilities due to the presence of service dogs.
    Response: The Centers for Disease Control and Prevention (CDC) 
notes there is no evidence that suggests that animals pose a more 
significant risk of transmitting infection than people; therefore, 
service animals should not be excluded from such areas unless a 
patient's situation or a particular animal poses risk that cannot be 
mitigated through reasonable measures.\79\ Thus, the Department notes 
that under the final rule, a health care facility generally must permit 
a person with a disability to be accompanied by a service animal in all 
areas of the facility in which that person would otherwise be allowed. 
There are some exceptions, however. Consistent with case law and CDC 
guidance, it is generally appropriate to exclude a service animal from 
limited-access areas that employ general infection-control measures, 
such as operating rooms and burn units. Usually, a service animal may 
accompany its handler to such areas as admissions and discharge 
offices, the emergency room, inpatient and outpatient rooms, examining 
and diagnostic rooms, clinics, rehabilitation therapy areas, the 
cafeteria and vending areas, the pharmacy, restrooms, and all other 
areas of the facility where health care personnel, patients, and 
visitors are permitted without added precaution.
---------------------------------------------------------------------------

    \79\ Ctrs. for Disease Control & Prevention, Environmental 
Infection Control Guidelines, Animals in Health-Care Facilities 
(Nov. 5, 2015). https://www.cdc.gov/infectioncontrol/guidelines/environmental/background/animals.html.
---------------------------------------------------------------------------

    Comment: Several commenters asked for clarification on issues 
related to the phrase ``under the control of its handler.'' Commenters 
stated that this clarification should help prevent discrimination 
against minors and persons with severe disabilities who are sometimes 
viewed as incapable of acting as the handler of their own service dog 
due to age or false assumptions and stereotypes about their disability. 
Other commenters expressed concern about handlers who are not able to 
physically control their service dog. Commenters noted that people with 
mental and communication disabilities are increasingly using service 
dogs and their handlers may not be able to issue verbal commands but 
can control their service dog through gestures and nonverbal means.
    Response: The Department agrees that the handler of a service 
animal is most often an individual with a disability. The Department's 
rule at Sec.  84.73(d) notes that one way for an individual with a 
disability to exercise control over their service animal is by ``voice 
control, signals, or other effective means.'' This language encompasses 
gestures and nonverbal means of controlling a service dog.
    Comment: Some commenters noted that some court decisions have 
applied the concept of reasonable modification to Sec.  84.73(e), which 
states that the recipient is not responsible for the care and 
supervision of a service animal. The comments seek clarification that 
providing some assistance to a person with a disability while they 
handle or care for their service dog may be required as a reasonable 
modification as long as it does not rise to the level of a fundamental 
alteration and is consistent with the type of assistance provided to 
other people with or without disabilities.
    Response: The Department notes that DOJ in its ``Frequently Asked 
Questions about Service Animals and the ADA,'' states that the handler 
is responsible for caring for and supervising the service animal, which 
includes toileting, feeding, and grooming.\80\ However, a school or 
similar entity operating in the K-12 context may be required to provide 
some assistance, which is short of care or supervision, to enable an 
individual with a disability to handle their service animal.\81\
---------------------------------------------------------------------------

    \80\ U.S. Dep't of Justice, Frequently Asked Questions about 
Service Animals and the ADA (2020), Question 9, https://www.ada.gov/resources/service-animals-faqs/.
    \81\ U.S. Dep't of Justice, Frequently Asked Questions about 
Service Animals and the ADA (2020), Question 27, https://www.ada.gov/resources/service-animals-faqs/.
---------------------------------------------------------------------------

    Recipients are not obligated to supervise or otherwise care for a 
service animal. This guidance specifically addresses patients in 
hospital care who have service animals with them in their hospital 
room. It states that, if the patient is not able to care for the 
service animal, the patient can make arrangements for a family member 
or friend to come to the hospital to provide these services, as it is 
always preferable that the service animal and its handler not be 
separated.\82\ In addition, the CDC has stated that care of the service 
animal remains the obligation of the person with the disability, not 
the health care staff.\83\
---------------------------------------------------------------------------

    \82\ U.S. Dep't of Justice, Frequently Asked Questions about 
Service Animals and the ADA (2020), Question 15, https://www.ada.gov/resources/service-animals-faqs/.
    \83\ See Ctrs. for Disease Control & Prevention, Environmental 
Infection Control Guidelines, Animals in Health-Care Facilities 
(Nov.5, 2015) https://www.cdc.gov/infectioncontrol/guidelines/environmental/background/animals.html.

---------------------------------------------------------------------------

[[Page 40115]]

    Comment: Several commenters noted that the use of miniature horses 
as a form of reasonable modification of policy has worked well with ADA 
title II rules and should be added to the Department's section 504 
rule. A trade organization noted that, while miniature horses can serve 
persons with disabilities, they are legally recognized as livestock and 
should be included as a separate entity from service animals. A legal 
rights advocacy organization stated that miniature horses may work best 
for higher weight or tall individuals, and stated the importance of 
including obesity as covered by section 504, as that would help ensure 
that higher weight individuals will be determined to be persons with 
disabilities and entitled to reasonable modification.
    Response: The Department agrees that miniature horses, under Sec.  
84.73(i), are not included in the definition of service animal, which 
is limited to dogs, and that they are legally recognized as livestock. 
However, the regulatory text makes it clear that a recipient must make 
reasonable modifications in policies, practices, or procedures to 
permit use of a miniature horse by an individual with a disability if 
the animal has been individually trained to do work or perform tasks 
for the benefit of the individual with a disability. In the discussion 
of the definition of disability above at Sec.  84.4, the Department 
noted that obesity could be considered a physical or mental impairment 
and that, if it substantially limited one or more of a person's major 
life activities, would qualify as a disability. In this case, a 
qualifying higher weight individual may be able to avail themselves of 
the use of miniature horses as a form of reasonable modification of 
polices, practices, or procedures.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.73 as proposed with no 
modifications.
Mobility Devices (Sec.  84.74)
    This section in the section 504 NPRM was identical to the ADA title 
II regulation.\84\ Proposed Sec.  84.74(a) provided that recipients 
shall permit individuals with mobility disabilities to use wheelchairs 
and manually-powered mobility aids, such as walkers, crutches, canes, 
braces, or other similar devices designed for use by individuals with 
mobility disabilities in any areas open to pedestrian use.
---------------------------------------------------------------------------

    \84\ 28 CFR 35.137.
---------------------------------------------------------------------------

    Section 84.74(b) proposed to require a recipient to make reasonable 
modifications in its policies, practices, or procedures to permit the 
use of other power-driven mobility devices by individuals with mobility 
disabilities, unless a recipient can demonstrate that the class of 
other power-driven mobility devices cannot be operated in accordance 
with legitimate safety requirements. The rule, in proposed Sec.  84.10, 
defined other power-driven mobility device to mean any mobility device 
powered by batteries, fuel, or other engines--whether or not designed 
primarily for use by individuals with mobilities disabilities--that is 
used by individuals with mobility disabilities for the purpose of 
locomotion.
    Proposed Sec.  84.74(b)(2) listed the factors that recipients would 
be required to consider in determining whether to permit other power-
driven mobility devices on their premises, including the type, size, 
weight, dimensions, and speed of the device; the volume of pedestrian 
traffic; the facility's design; whether the facility is indoors or 
outdoors; the availability of storage space if requested; and whether 
the use of the device creates a substantial risk of serious harm to the 
environment or natural and cultural resources.
    Proposed Sec.  84.74(c)(1) would prohibit a recipient from asking 
an individual using a wheelchair or other power-driven mobility device 
questions about the nature and extent of the individual's disability. 
Proposed Sec.  84.74(c)(2) would permit a recipient to ask a person 
using an other power-driven mobility device to provide a credible 
assurance that the mobility device is required because of the person's 
disability, including a valid, State-issued parking placard or other 
State-issued proof of disability, or in lieu of such documents, a 
verbal representation, not contradicted by observable fact, that the 
other power-driven mobility device is being used for a mobility 
disability.
    The comments and our responses to them regarding Sec.  84.74 and 
related terms are set forth below.
    Comment: Commenters were generally appreciative of the Department's 
decision to adopt the approach taken by DOJ on mobility devices in 
Sec.  84.74. Some commenters expressed concern that the phrase ``other 
power-driven mobility devices'' in Sec.  84.74(b) could be interpreted 
to include scooters and power chairs commonly used by persons with 
disabilities, so they recommended that the Department clarify that 
higher capacity wheelchairs and scooters are covered in Sec.  84.74(a), 
and not in Sec.  84.74(b). A commenter providing health care made the 
case that the Department should exempt health care facilities from 
having to admit devices like Segways[supreg], golf carts, and other 
motorized devices because allowing them into the facility will put 
patients in harm's way. One commenter noted that some recipients, 
including nursing homes, use blanket bans of power wheelchairs to 
exclude individuals with disabilities from programs and services.
    Response: The Department notes that proposed Sec.  84.74(a) 
specifically concerns ``wheelchairs'' and that the definition of 
``wheelchair'' in Sec.  84.10 includes a ``power-driven device designed 
primarily for use by an individual with a mobility disability for the 
main purpose of indoor, or of both indoor and outdoor locomotion.'' 
This definition includes scooters and power wheelchairs that are 
specifically designed for the use of persons with mobility 
disabilities. It contrasts with the definition of other power-driven 
mobility devices, which are not necessarily designed primarily for the 
use of persons with mobility disabilities. This definition of other 
power-driven mobility devices encompasses golf carts and electronic 
personal assistance mobility devices such as the Segway[supreg]. Thus, 
Sec.  84.74(a) includes scooter and power wheelchairs designed for the 
use of persons with mobility disabilities, and Sec.  84.74(b) includes 
golf carts, Segways[supreg], and other similar motorized devices that 
have not been primarily designed for persons with mobility 
disabilities.
    The Department believes that the processes established by Sec.  
84.74 will allow hospitals and other recipients to make reasonable and 
reasoned decisions about whether and how to allow other power-driven 
mobility devices into their facilities. Section 84.74(b)(1) provides 
that recipients shall make reasonable modifications in its policies, 
practices, or procedures to permit the use of other power-driven 
mobility devices by individuals with mobility disabilities, unless the 
recipient can demonstrate that the class of such devices cannot be 
operated in accordance with legitimate safety requirements. Section 
84.74(b)(2) provides a list of assessment factors that recipients can 
use to consider in making determinations concerning whether and how the 
recipient will allow different types or classes of other power-driven 
mobility devices into its facilities. The Department believes that this 
process will allow hospitals and others to develop and issue policies 
that balance the need for patient safety with the needs of persons with 
disabilities who

[[Page 40116]]

use other power-driven mobility devices in their facilities.
    For example, using these assessment factors, a county hospital may 
decide that it can allow electronic personal assistance mobility 
devices (EPAMDs), which are other power-driven mobility devices under 
proposed Sec.  84.10 in any areas open to pedestrian use, including the 
cafeteria and general patient rooms, but not in other specified areas 
of the hospital (e.g., the emergency room or other areas with high 
traffic and cramped quarters), as long as operators do not operate the 
device faster than pedestrians are walking. A recipient might also 
decide, using the assessment factors, that due to air quality concerns, 
for example, gas-powered devices would not be allowed in the hospital's 
indoor facilities; or that certain classes of devices, such as golf 
carts, could not be allowed for safety reasons, because the facility's 
corridors or aisles are not wide enough to accommodate those vehicles 
and are heavily trafficked. Because Sec.  84.74 establishes a procedure 
and sets forth appropriate assessment standards for recipients, the 
Department does not view it as necessary to exempt health care 
facilities from the requirements of this section in its final rule. In 
addition, the Department notes that health care facilities, both public 
and private, have already been subject to this same provision since 
2010 under DOJ's ADA regulations for titles II and III.
    As to the comment on blanket bans on the use of motorized 
wheelchairs in nursing homes, the Department notes that such bans may 
violate section 504. The Department's final rule requires recipients to 
allow the use of wheelchairs, including power-driven ones, and contains 
several disability-related provisions that require a recipient to 
tailor its approach based on the specific circumstances rather than 
apply blanket bans. For example, recipients need not allow an 
individual to participate in or benefit from the programs or activities 
of that recipient if it concludes, after an individualized assessment, 
that the individual poses a ``direct threat'' as set forth in Sec.  
84.75. Similarly, ``a recipient may impose legitimate safety 
requirements necessary for the safe operation of its programs or 
activities'' in Sec.  84.68(h). However, the recipient must ensure that 
``its safety requirements are based on actual risks, not on mere 
speculation, stereotypes, or generalizations about individuals with 
disabilities.'' In addition, Sec.  84.68(b)(8) provides that a 
``recipient shall not impose or apply eligibility criteria that screen 
out or tend to screen out an individual with a disability or any class 
of individuals with disabilities from fully and equally enjoying any 
program or activity, unless such criteria can be shown to be necessary 
for the provision of the program or activity being offered.''
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.74 as proposed with no 
modifications.
Direct Threat (Sec.  84.75)
    Proposed Sec.  84.75(a) stated that nothing in this part requires a 
recipient to permit an individual to participate in or benefit from 
programs or activities when that individual poses a direct threat.
    Proposed Sec.  84.75(b) stated that except as provided in paragraph 
(c), in determining whether an individual poses a direct threat, a 
recipient must make an individualized assessment, based on reasonable 
judgment that relies on current medical knowledge or on the best 
available objective evidence, to ascertain: the nature, duration, and 
severity of the risk; the probability that the potential injury will 
actually occur; and whether reasonable modifications of policies, 
practices, or procedures or the provision of auxiliary aids or services 
will mitigate the risk.
    Proposed Sec.  84.75(c) provided that in the area of employment, 
the individualized assessment must be made according to the ADA title I 
regulations of the Equal Employment Opportunity Commission.
    The comments and our responses regarding Sec.  84.75 are set forth 
below.
    Comments: The Department received many comments, including from 
multiple organizations representing individuals with disabilities, 
stating that the direct threat defense has been misunderstood, 
overused, and misconstrued and has been used to justify blanket bans on 
wheelchairs, power wheelchairs, and other mobility assistive devices 
based on generalizations and stereotypes. The commenters asked that we 
clarify that the direct threat analysis should be focused on the 
individual and requires a fact-specific, individualized assessment.
    Response: As set forth in the definition of direct threat in Sec.  
84.10, the standard to apply when determining whether a situation poses 
a direct threat is whether it is a significant risk to the health and 
safety of others that cannot be eliminated by a modification of 
policies, practices, and procedures, or by the provision of auxiliary 
aids and services. In determining whether that standard has been met, 
the Department affirms the notion that the determination is a factual 
one that requires an individualized assessment and that it cannot be 
used to impose blanket bans on, for example, mobility devices without 
consideration of the appropriate factors.
    Comment: An organization representing an association of State 
government agencies highlighted the potential unintended consequences 
of the direct threat text. They focused on a subgroup of individuals 
with disabilities who have impulsive and explosive behaviors that can 
sometimes result in injury to themselves or others. The commenter noted 
that in these types of situations, many States have developed small 
community service settings for those individuals rather than providing 
services in more restrictive settings such as State institutions. The 
commenters were afraid that if the Department were to keep the direct 
threat language as in the proposed rule, individuals who need 
extraordinary measures will be permanently assigned to institutional 
care. They suggested the addition of a paragraph in the text indicating 
that if all reasonable modifications have been made to mitigate the 
risk and the probability of potential injury still exists, the 
recipient must structure the program with sufficient staff well trained 
to disarm and defend against the threatening behavior.
    Response: The Department thanks the commenters for their thoughtful 
suggestions for additions to the direct threat text. Section 
84.68(b)(7) contains the Department's reasonable modifications 
requirement. That section requires recipients to provide reasonable 
modifications to policies, practices, and procedures when such 
modifications are necessary to avoid discrimination on the basis of 
disability, unless the recipient can demonstrate that making the 
modifications would fundamentally alter the nature of the program or 
activity. And Sec.  84.76 contains the Department's integration 
requirement. These regulations require ``reasonable'' modifications but 
commenters want the mandate to include ``extraordinary'' modifications. 
The Department is unable to change the direct threat text to require 
more of recipients than is required by the reasonable modifications and 
integration provisions. Recipients can certainly decide to provide more 
than is required by section 504 to serve particular individuals but we 
cannot mandate that they do so. Accordingly, we decline to change the 
regulatory text.

[[Page 40117]]

Summary of Regulatory Changes
    For the reasons set forth above and considering comments received, 
we are retaining Sec.  84.75 as proposed with no modifications.
Integration (Sec.  84.76)
    Proposed Sec.  84.76 expanded upon the integration mandate in the 
existing section 504 regulations at Sec.  84.4(b)(2) and the 
integration requirement in proposed Sec.  84.68(d).
    Proposed Sec.  84.76(a) addressed the application of the section.
    Proposed Sec.  84.76(b) prohibited administering a program or 
activity in a manner that results in unnecessary segregation of 
individuals with disabilities.
    Proposed Sec.  84.76(c) defined a segregated setting as one where 
individuals with disabilities are unnecessarily separated from people 
without disabilities. Such settings are populated exclusively or 
primarily with individuals with disabilities, and may be characterized 
by regimentation in daily activities; lack of privacy or autonomy; or 
policies limiting visitors or limiting individuals' ability to engage 
freely in community activities and to manage their own activities of 
daily living.
    The Department invited comment on whether the definition of 
``segregated setting'' should be expanded.
    Proposed Sec.  84.76(d) provided a non-exhaustive list of specific 
prohibitions.
    Proposed Sec.  84.76(e) stated that a recipient may establish a 
defense to the application of this section if it can demonstrate that a 
requested modification would fundamentally alter the nature of its 
program or activity.
    The Department invited comment on what may constitute a fundamental 
alteration for recipients who are not public entities, for example, an 
individual skilled nursing facility responsible for identifying and 
preparing individuals who can and want to be discharged to available 
community-based services.
    The comments and our responses regarding Sec.  84.76 are set forth 
below.
General
    Comments: Most commenters enthusiastically supported the 
clarification of integration requirements in this section. We received 
supportive comments from individuals, advocacy organizations, State 
government and provider associations, and managed care plans, among 
others. Commenters emphasized the importance of integrated services to 
ensure individuals with disabilities can live, work, and engage in the 
community like people without disabilities.
    Response: The Department appreciates support for this section and 
intends for the new provisions to clarify the existing requirements of 
covered entities.
    Comments: Several commenters, including parents of adult children 
with disabilities and parent advocacy organizations, expressed concerns 
related to the legitimacy of the integration provision and shared the 
opinion that institutional settings are the only appropriate option for 
some individuals with disabilities. Further, these commenters alleged 
that failure to ensure the availability of institutional placements is 
discrimination against individuals with disabilities.
    Response: While this section elaborates on the prior rule's 
language requiring programs and services to be administered in the most 
integrated setting, the additions are intended to codify longstanding 
case law and Federal guidance with respect to the obligations of 
covered entities to serve individuals with disabilities in the most 
integrated setting appropriate to their needs.\85\ The Department 
recognizes several commenters' opposition to the integration mandate. 
We note that contrary to some parent advocacy groups' position, the 
integration mandate in section 504 or title II does not require 
recipients or public entities to offer services, programs, or 
activities in institutional settings.\86\ We reiterate this section 
clarifies existing obligations under Federal law to help recipients 
deliver services in the most integrated setting appropriate to a 
person's needs.
---------------------------------------------------------------------------

    \85\ See, e.g., Olmstead v. L.C., 527 U.S. 581 (1999); U.S. 
Dep't of Justice, Statement of the Department of Justice on 
Enforcement of the Integration Mandate of Title II of the Americans 
with Disabilities Act and Olmstead v. L.C. (2020), https://www.ada.gov/olmstead/q&a_olmstead.htm.
    \86\ See e.g., Richard C. ex rel. Kathy B. v. Houstoun, 196 FRD. 
288, 292 (W.D. Pa. 1999) (``[I]t does not logically follow that 
institutionalization is required if any one of the three Olmstead 
criteria is not met.''); Ball v. Kasich, 520 F. Supp. 3d 979, 984-85 
(S.D. Ohio 2021) (``These courts find that failure to provide 
facility-based services does not constitute discrimination under the 
ADA or Rehabilitation Act.'' citing D.T. v. Armstrong, 2017 U.S. 
Dist. LEXIS 91725 *20-21, 2017 WL 2590137 *7-8 (D. Idaho 2017), 
Sciarrillo v. Christie, 2013 U.S. Dist. LEXIS 175178, 2013 WL 
6586569, * 4 (D. N.J. Dec. 13, 2013) (citing Richard S. v. Dep't of 
Developmental Servs. of the State of Cal., 2000 U.S. Dist. LEXIS 
22750, 2000 WL 35944246, *3 (C.D. Cal. Mar. 27, 2000)); Richard C. 
ex rel. Kathy B. v. Houstoun, 196 FRD. 288, 292 (W.D. Pa. 1999); 
Ill. League of Advocates for the Developmentally, Disabled v. Quinn, 
2013 U.S. Dist. LEXIS 86637, 2013 WL 3168758, *5 (N.D. Ill. June 20, 
2013)).
---------------------------------------------------------------------------

    Comment: A commenter suggested that the Department's integration 
mandate discriminates against those persons with severe or multiple 
disabilities who may need the services of institutional settings. 
Another commenter representing State government stated that the 
proposed rule violates the constitutional principle of separation of 
powers.
    Response: The Department does not agree that its integration 
requirement in Sec.  84.76(b) discriminates against persons with severe 
disabilities. That section requires providing a person with a 
disability with the most integrated setting ``appropriate to the needs 
of a qualified persons with a disability.'' This language by its own 
terms recognizes the possibility that there may be situations where an 
appropriate placement may be in an institutional setting.
    As to the comment on the separation of powers, the Department 
disagrees with the comment's assertion that its regulation removes 
political judgment from the hand of the States or supplants States' 
authority or discretion in this area. The Department is following the 
precedent set in the Olmstead decision. The regulation recognizes that, 
when States already have programs in place providing services to 
persons with disabilities, those programs must comply with two Federal 
civil rights requirements: section 504's and the ADA's requirement not 
to operate programs or activities in a manner that discriminates on the 
basis of disability. For reasons discussed elsewhere in our responses 
to comments about Sec.  84.76 (d) (discussion of the ``at serious 
risk'' standard and the U.S. v. Mississippi decision) and the 
discussion of Executive Order 13132 and federalism, the rule's 
integration mandate, including the prohibition on failure to provide 
community-based services that results in ``serious risk of 
institutionalization,'' does not exceed statutory authority under 
section 504 and the ADA and therefore does not implicate separation of 
powers concerns by improperly intruding on State policymaking 
discretion.
    Further, the rule requires only ``reasonable modifications,'' and 
codifies the ``fundamental alteration'' limitation, two additional 
features that respect the role of federalism.
Application (Sec.  84.76(a))
    Comments: Several commenters asked the Department to clarify 
whether this section applies to specific programs, such as day programs 
for individuals with dementia or programs for individuals with mental 
illness. Additionally, some commenters asked for elaboration on how 
this applies to programs funded through Medicare Advantage. These 
commenters argued

[[Page 40118]]

that the failure to provide Medicaid and Medicare beneficiaries with 
needed services, including mental health services, treatments, and 
equipment, quickly leads to decreased health and function that can put 
both Medicaid and Medicare enrollees at serious risk of unnecessary 
institutionalization.
    Response: The integration requirements apply to all programs or 
activities that receive Federal financial assistance from the 
Department without exception. The rule clarifies recipients' existing 
obligations under section 504 and does not create new obligations 
regarding integration. For example, managed care organizations and 
Medicare Advantage entities are obligated to provide services in the 
most integrated setting if doing so does not fundamentally alter the 
program or service. Similarly, hospital systems receiving Federal 
financial assistance from the Department must ensure their discharge 
planning processes facilitate HCBS when appropriate, rather than 
defaulting to coordinating placements for congregate care facilities.
    We note that the ``most integrated setting'' depends on what is 
appropriate for the individual with a disability.
    Comments: Several commenters highlighted the importance of the 
availability of key resources like accessible, affordable housing; 
transportation; and assistive technology, that individuals with 
disabilities need to engage fully in the community. Shortages in these 
programs and services create barriers to community integration. 
Commenters encouraged the Department to include access to these 
services in the rule.
    Response: The Department agrees that many federally funded services 
are necessary to help eliminate barriers to community living and 
engagement. We note that this rule's coverage extends only to 
recipients of Federal financial assistance through this Department, and 
does not reach many transportation, housing, education, or other 
programs that do not receive HHS funds. However, we collaborate 
frequently with our Federal partners who do fund these services and 
have issued joint guidance about how these programs support community 
integration for disabilities.\87\ We will consider additional joint 
guidance to advance coordination as appropriate.
---------------------------------------------------------------------------

    \87\ See e.g., U.S. Dep't of Health & Human Servs. & U.S. Dep't 
of Housing & Urban Dev., Fact Sheet: Advancing Community Living 
Through Coordination Between Housing and Voluntary Community 
Services (Dec. 8, 2021), https://acl.gov/sites/default/files/ada/HHS-HUD_HousingFactSheetpdf.pdf.
---------------------------------------------------------------------------

Applicability of the Integration Requirement in a Public Health 
Emergency
    Comments: Several commenters noted that Public Health Emergencies 
and natural disasters are critical junctures where people with 
disabilities are institutionalized. They cited the National Council on 
Disability (NCD) report, ``Preserving Our Freedom: Ending 
Institutionalization of People with Disabilities During and After 
Disasters,'' which found that people with disabilities are often 
transferred to nursing facilities or segregated shelters during 
emergencies, without proper assessment, transition planning or 
discharge planning.\88\ Commenters highlighted that, during the COVID-
19 pandemic, people were often placed in congregate care settings with 
extreme levels of uncontrolled infection and resulting high mortality 
rates.
---------------------------------------------------------------------------

    \88\ Nat`l Council on Disability, Preserving Our Freedom: Ending 
Institutionalization of People with Disabilities During and After 
Disasters, (May 24, 2019), https://ncd.gov/publications/2019/preserving-our-freedom.
---------------------------------------------------------------------------

    Response: The Department has consistently stated that section 504 
and other civil rights obligations apply during a public health 
emergency.\89\ Further, even if a practice is allowed through an 
administrative policy such as a Public Health emergency waiver, such a 
waiver does not obviate the covered entity's responsibility to meet 
their obligations under section 504.
---------------------------------------------------------------------------

    \89\ See U.S. Dep't of Health & Human Servs., Off. for Civil 
Rts., FAQs for Healthcare Providers during the COVID-19 Public 
Health Emergency: Federal Civil Rights Protections for Individuals 
with Disabilities under Section 504 and Section 1557 (Feb. 4, 2022), 
https://www.hhs.gov/civil-rights/for-providers/civilrights-covid19/disabilty-faqs/; U.S. Dep't of Health & Human Servs., Off. 
for Civil Rts., Bulletin: Civil Rights, HIPAA, and the Coronavirus 
Disease 2019 (COVID-19) (Mar. 28, 2020), https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf.
---------------------------------------------------------------------------

Obligations under the Medicare Program
    Comments: Several commenters noted that the integration mandate has 
substantial implications for the Medicare program and requested that 
the Department clarify obligations of recipients operating Medicare-
financed programs under section 504's integration mandate, including 
with respect to home health and other Medicare benefits.
    Response: The Department agrees that section 504's integration 
mandate applies to Medicare programs, including Medicare Advantage 
plans, Medicare Part D plans, and other entities that receive Medicare 
funding (such as the Program of All-inclusive Care for the Elderly 
(PACE) programs or health plans operating under the Centers for 
Medicare & Medicaid Services' (CMS's) dual eligible demonstrations).
Discriminatory Action Prohibited (Sec.  84.76(b))
    Comments: Several commenters found the phrasing ``unnecessary 
segregation,'' in Sec.  84.76 (b), to be an extraneous and potentially 
confusing term. They expressed concern that the addition of the term 
may lead to the assumption that there is a second standard distinct 
from ``most integrated setting appropriate to the needs of a qualified 
person with a disability,'' that determines whether segregation is 
unnecessary. Other commenters objected to the proposed phrase, stating 
that segregation of people with disabilities is never necessary.
    Response: Recipients have a longstanding, affirmative obligation 
under the integration requirement of section 504 to administer a 
program or activity ``in the most integrated setting appropriate to the 
needs of a qualified person with a disability.'' \90\ Failing to do so 
may violate section 504. We appreciate comments that the second 
sentence may confuse recipients about the applicable standard. To 
clarify the requirements, we are deleting the second sentence. In doing 
so, the Department intends only to clarify the requirement of this 
section and does not mean to narrow the obligation to provide services 
in the most integrated setting appropriate to the needs of the 
individual with a disability.
---------------------------------------------------------------------------

    \90\ 45 CFR 84.4(b)(2).
---------------------------------------------------------------------------

Responses to Integration Question 1
    Comments: In the discussion in the preamble of the proposed 
definition of ``most integrated setting,'' we solicited comments on 
whether the definition should be expanded. Many commenters from 
disability advocacy organizations suggested a definition: ``The most 
integrated setting is a setting that enables people with disabilities 
to live as much as possible like people without disabilities.'' 
Commenters said this definition was supported in a 2014 disability 
coalition statement ``Community Integration for People with 
Disabilities.'' \91\ Commenters also suggested that this definition 
avoids imposing concrete secondary standards distinct from the ``most 
integrated setting,'' such as determining what is ``mainstream 
society.'' Some commenters also found the phrase

[[Page 40119]]

``mainstream society'' to be pejorative or biased against groups not 
identified as ``mainstream.''
---------------------------------------------------------------------------

    \91\ ADAPT et al., Community Integration for People with 
Disabilities: Key Principles (2014), https://www.bazelon.org/wp-content/uploads/2017/10/Key-Principles.pdf (stating that 
``individuals with disabilities should have the opportunity to live 
like people without disabilities.'').
---------------------------------------------------------------------------

    Comments: Many commenters supported the importance of the 
individual's right to choose how and when they engage in the broader 
community. Some also emphasized the importance of informed choice, that 
an individual receives adequate information about available and 
programs and resources available to support services in the community.
    Response: We appreciate the commenters' thoughtful responses to our 
request for comment on whether the definition of ``most integrated 
setting'' should be expanded, and we note disability advocacy groups' 
preference for a more streamlined definition. We have modified the 
NPRM's definition of ``most integrated setting'' to align more closely 
with the description of ``most integrated setting'' in title II 
Olmstead guidance.\92\ To mirror the guidance, we are adding the clause 
``these settings provide opportunities to live, work, and receive 
services in the greater community, like individuals without 
disabilities,'' to the definition published in the NPRM.
---------------------------------------------------------------------------

    \92\ U.S. Dep't of Justice, Statement of the Department of 
Justice on Enforcement of the Integration Mandate of Title II of the 
Americans with Disabilities Act and Olmstead v. L.C. (2020), https://www.ada.gov/olmstead/q&a_olmstead.htm (last visited Feb. 21, 2024).
---------------------------------------------------------------------------

Segregated Settings (Sec.  84.76(c))
    Comments: Several commenters objected to the use of the word 
``unnecessarily'' in the rule's proposed language: ``A segregated 
setting is one in which people with disabilities are unnecessarily 
separated from people without disabilities,'' on the basis that 
segregation is inherently stigmatizing and thus never necessary. Many 
commenters emphasized that segregated settings are defined by a lack of 
informed, individual choice or autonomy for participants in how and 
when they interact with the broader community. These characteristics 
can be present even in settings such as group homes physically located 
in integrated communities.\93\
---------------------------------------------------------------------------

    \93\ See, e.g., Pashby v. Delia, 709 F.3d 307, 323 (4th Cir. 
2013) (finding adult care homes institutional in nature and that the 
``goals often fall short of reality'' of the facilities); H.A. by 
L.A. v. Hochul, 2022 WL 357213, at *6 (W.D.N.Y. 2022) (finding that 
engagement in community living activities misses the point that 
their schedules are circumscribed due to limited caregiver 
availability); Murphy v. Harpstead, 421 F. Supp. 3d 695, 716 (D. 
Minn. 2019) (community integration issues found when plaintiffs 
showed isolation, limited choice, and lesser quality of life in 
group homes than independent housing).
---------------------------------------------------------------------------

    Many commenters suggested a paragraph describing segregated 
settings that provides features of segregated settings but is not a 
definitive list, in a style mirroring that of DOJ's Olmstead 
guidance.\94\ Several commenters suggested that the definition include 
``practices'' as well as ``policies,'' as the relevant restrictions or 
limitations on individual autonomy are not limited to those in formally 
adopted policies but also include those reflected in the setting's 
practices.
---------------------------------------------------------------------------

    \94\ U.S. Dep't of Justice, Statement of the Department of 
Justice on Enforcement of the Integration Mandate of Title II of the 
Americans with Disabilities Act and Olmstead v. L.C. (2020).
---------------------------------------------------------------------------

    Response: We appreciate the robust comments on segregated settings. 
We agree that the list of qualities of segregated settings should be 
inclusive of examples, rather than defined by any one characteristic. 
We also agree that a covered entity's practices, in addition to its 
policies, can result in segregation. Accordingly, we revised Sec.  
84.76(c) by deleting the first sentence of the section. Paragraph (c) 
now provides that segregated settings include, but are not limited to, 
congregate settings populated exclusively or primarily with individuals 
with disabilities, and may be characterized by regimentation in daily 
activities, a lack of privacy or autonomy, or policies or practices 
limiting visitors or limiting individuals' ability to engage freely in 
community activities and to manage their own activities of daily 
living.
Relationship to Medicaid Statutes and Funding
    Comments: Several commenters expressed concern that the integration 
mandate is perceived to conflict with the title XIX of the Social 
Security Act requirements. Title XIX requires Medicaid services be 
funded through an approved waiver or State plan program when the State 
elects to provide those services in the community instead of the 
mandatorily funded long-term care facilities, a requirement sometimes 
referred to as Medicaid's ``institutional bias.'' Other commenters 
raised concern about the need for increased Medicaid funding and 
rebalancing available Medicaid funds to prioritize community-based 
services. Some commenters asked that the definition of segregated 
settings mirror the CMS HCBS settings rule,\95\ which sets the 
requirements for HCBS settings funded by Medicaid waivers. The Settings 
Rule lists several qualities of home and community-based settings, 
centered on rights of privacy, dignity and respect, and freedom from 
coercion and restraint, as well as promoting independence in making 
life choices, including but not limited to, daily activities, physical 
environment, and with whom to interact.
---------------------------------------------------------------------------

    \95\ Ctrs. for Medicare & Medicaid Servs., Medicaid Program; 
State Plan Home and Community-Based Services, 5-Year Period for 
Waivers, Provider Payment Reassignment, and Home and Community-Based 
Setting Requirements for Community First Choice and Home and 
Community-Based Services (HCBS) Waivers, 79 FR 2948 (Jan. 16, 2014).
---------------------------------------------------------------------------

    Response: As noted in the preamble to the NPRM, the civil rights 
obligations created by section 504 are separate and distinct from the 
requirements of Medicaid and the Social Security Act.\96\ Compliance 
with Medicaid requirements does not necessarily mean a recipient has 
met the obligations of section 504. Further, implementation of title 
XIX or other Federal statutes is beyond the authority of this 
regulation to address.
---------------------------------------------------------------------------

    \96\ See, e.g., U.S. Dep't of Health & Human Servs., Ctrs. for 
Medicare & Medicaid Servs, Instructions, Technical Guidance and 
Review Criteria: Application for a Sec.  1915(c) Home and Community 
Based-Waiver, 15 (2019), https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-documents/instructions_technicalguide_v3.6_226.pdf (``Although this is 
guidance with respect to the Medicaid program, we note that states 
have obligations pursuant to the Americans with Disabilities Act, 
section 504 of the Rehabilitation Act, and the Supreme Court's 
Olmstead decision interpreting the integration regulations of those 
statutes. Approval of any Medicaid Waiver action does not in any way 
address the State's independent obligations under the Americans with 
Disabilities Act or the Supreme Court's Olmstead decision.'').
---------------------------------------------------------------------------

    Acknowledging comments desiring the same framework of ``integrated 
setting'' as the HCBS settings rule, we note that, while the HCBS 
settings rule can help States fulfill their obligations under section 
504, a State's obligations under section 504 are independent of a 
State's compliance with the HCBS settings rule.\97\
---------------------------------------------------------------------------

    \97\ U.S. Dep't of Health & Human Servs., Ctrs. for Medicare & 
Medicaid Servs, Letter to State Medicaid Directors (Olmstead Update 
#4) (Jan. 10, 2001) (``. . . because Medicaid HCBS waivers affect 
the ability of States to use Medicaid to fulfill their obligations 
under the ADA and other statues, we have included these answers as 
an Olmstead/ADA update.'') See, e.g., 88 FR 63486; and U.S. Dep't of 
Health & Human Servs., Ctrs. for Medicare & Medicaid Servs, 
Instructions, Technical Guidance and Review Criteria: Application 
for a Sec.  1915(c) Home and Community Based-Waiver, 15 (2019), 
https://www.hhs.gov/guidance/sites/default/files/hhsguidance-documents/instructions_technicalguide_v3.6_66.pdf (``Although this 
is guidance with respect to the Medicaid program, we note that 
states have obligations pursuant to the Americans with Disabilities 
Act, section 504 of the Rehabilitation Act, and the Supreme Court's 
Olmstead decision interpreting the integration regulations of those 
statutes. Approval of any Medicaid Waiver action does not in any way 
address the State's independent obligations under the Americans with 
Disabilities Act or the Supreme Court's Olmstead decision.'').
---------------------------------------------------------------------------

    Additionally, the Department appreciates commenters' feedback about 
the need for increased HCBS funding and rebalancing available Medicaid

[[Page 40120]]

funds to prioritize community-based services. However, these concerns 
are beyond the scope of the Department's rulemaking under section 504.
Specific Prohibitions (Sec.  84.76(d))
    Comments: State officials objected to the proposed rule's inclusion 
in the list of specific prohibitions ``[f]ailure to provide community-
based services that results in . . . serious risk of 
institutionalization'' (Sec.  84.76(d)(4)). These commenters cited the 
Fifth Circuit's decision in United States v. Mississippi, 82 F.4th 387 
(5th Cir. 2023), to support their position. Commenters also took issue 
with the reference to DOJ's Olmstead guidance in the proposed rule's 
discussion of integration requirements. Several courts of appeals have 
found DOJ's Olmstead guidance to reflect the best reading of the 
statute and the then-applicable regulations,\98\ whereas the Fifth 
Circuit declined to follow the guidance on the facts before it.\99\
---------------------------------------------------------------------------

    \98\ See, e.g., Steimel v. Wernert, 823 F.3d 902, 911 (7th Cir. 
2016); Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016); Pashby v. 
Delia, 709 F.3d 307, 322 (4th Cir. 2013).
    \99\ United States v. Miss., 82 F.4th 387, 393-394 (5th Cir. 
2023).
---------------------------------------------------------------------------

    Response: Based on the Supreme Court's decision in Olmstead,\100\ 
decades of consensus in circuit courts, and the unambiguous 
requirements of existing title II and section 504 regulations, the 
Department affirms its decision to codify the ``at serious risk of 
institutionalization'' principle set forth in case law and guidance.
---------------------------------------------------------------------------

    \100\ Olmstead v. L.C., 527 U.S. 581 (1999).
---------------------------------------------------------------------------

    In the more than twenty years since Olmstead, courts have 
repeatedly held that individuals may bring nondiscrimination claims 
under section 504 and the ADA by showing a covered entity's actions 
place them at serious risk of unnecessary institutionalization. As 
noted in Fisher v. Oklahoma, the integration mandate's ``protections 
would be meaningless if plaintiffs were required to segregate 
themselves by entering an institution before they could challenge an 
allegedly discriminatory law or policy that threatens to force them 
into segregated isolation.'' \101\ To this point, the title II and 
section 504 regulations create an unambiguous, affirmative obligation 
to avoid discrimination through unjustified isolation, as discussed 
below.
---------------------------------------------------------------------------

    \101\ Fisher v. Okla. Health Care Auth, 335 F.3d at 1181.
---------------------------------------------------------------------------

    Thus, the overwhelming weight of authority supports robust 
protection for individuals at serious risk of unnecessary 
institutionalization. Of the seven circuits to consider the issue, the 
Fifth Circuit stands apart as the only one to question the long-
standing application of ``serious risk'' in Olmstead cases.\102\ 
Further, the Fifth Circuit did not reach the question of whether the 
other six circuits erred in their interpretations, noting that it 
``need not say'' that the decisions of the other six circuits were 
``wrong.'' \103\ And even the Fifth Circuit did not definitively reject 
Olmstead's application to ``at risk'' cases in all circumstances. '' 
\104\ The other circuits' at-risk decisions, by contrast, involved 
circumstances in which class-wide risks of institutionalization were 
``susceptible of quantification and, indeed, generalization.'' \105\ 
Despite some broadly worded dicta, the Fifth Circuit's liability 
holding in Mississippi ultimately rests on what the court saw as the 
breadth of the claim in that case.'' \106\ The court favored a narrow 
reading in part because of the doctrine of ripeness.\107\ That 
doctrine, which reflects Article III limitations on judicial power, is 
not relevant to the proper scope of the Department's regulations. That 
holding does not compel us to reject the longstanding principle, 
adopted by six other circuits, that a policy or practice that places 
individuals at serious risk of unnecessary institutionalization 
violates the integration mandate in appropriate cases.
---------------------------------------------------------------------------

    \102\ See Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016); 
Pashby v. Delia, 709 F.3d 307, 322 (4th Cir. 2013); Waskul v. 
Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 460-461 (6th Cir. 
2020); Steimel v. Wernert, 823 F.3d 902, 914 (7th Cir. 2016); Fisher 
v. Okla. Health Care Auth., 335 F.3d 1175, 1181-82 (10th Cir. 2003).
    \103\ U.S. v. Miss., 82 F.4th at 396.
    \104\ Id. at 392, 396.
    \105\ Id. at 396.
    \106\ Id. at 398.
    \107\ Id. at 397 (quoting Waskul v. Washtenaw Cnty. Cmty. Mental 
Health, 979 F.3d 426, 470 (6th Cir. 2020) (Readler, J. concurring in 
part and dissenting in part)).
---------------------------------------------------------------------------

    The title II and section 504 regulations create an unambiguous, 
affirmative obligation to avoid discrimination through unjustified 
isolation. As legislatively authorized regulations, both carry the 
``force and effect of law.'' \108\ 28 CFR 35.130(d) requires that a 
``public entity shall administer services, programs, and activities in 
the most integrated setting appropriate to the needs of qualified 
individuals with disabilities.'' The Department has long interpreted 
section 504 to impose the same requirement on recipients of Federal 
funding in 45 CFR 84.4(b)(2). Further, the regulation interpreting the 
reasonable modification component of title II, which is located at 28 
CFR 35.130(b)(7)(i), requires public entities to ``avoid 
discrimination.'' Courts have held this creates a duty to address the 
risk of prohibited harm.\109\ The proposed section 504 regulation, 45 
CFR 84.68(d), adopts the same language, codifying the longstanding 
obligation under section 504. Mitigating serious risk of 
institutionalization is necessary to avoid discrimination in the form 
of unjustified isolation. In addition, it would still be appropriate 
for courts to grant injunctive relief to those at serious risk in order 
to prevent the unnecessary institutionalization prohibited by law. The 
potential scope of a judicial remedy only further highlights why it is 
appropriate for the Department to interpret section 504 to require 
recipients to avoid unnecessary institutionalization.\110\
---------------------------------------------------------------------------

    \108\ See, e.g., Ramsay v. Nat'l Bd. of Med. Examiners, 968 F.3d 
251, 257 n.6 (3d Cir. 2020) (``The ADA authorizes DOJ to issue 
regulations implementing the public accommodations provisions of the 
ADA. Such regulations have the force and effect of law.'') (Internal 
quotation omitted).
    \109\ See, e.g., Wisconsin Cmty. Servs., Inc. v. City of 
Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006) (``By requiring 
measures that are `necessary to avoid discrimination on the basis of 
disability,' 28 CFR 35.130(b)(7), the regulation clearly 
contemplates that prophylactic steps must be taken to avoid 
discrimination.'').
    \110\ See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 
633 (1953) (explaining that ``[t]he purpose of an injunction is to 
prevent future violations'' and that such relief is appropriate 
where there is a ``cognizable danger of recurrent violation.'').
---------------------------------------------------------------------------

    Comments: Several commenters asked us to elaborate on the meaning 
of ``at serious risk,'' noting that courts have evaluated the risk of 
institutionalization for both probability of institutionalization and 
timing, to conclude that individuals at risk are likely to be 
institutionalized in the foreseeable future.
    Response: We agree with commenters that the determination of 
``serious risk'' is a fact-based inquiry, which is why the courts of 
appeals to have considered the question have provided only general 
guidance on determining risk rather than an exhaustive test.\111\ 
Likewise, the Department declines to codify

[[Page 40121]]

parameters of the inquiry into ``serious risk.''
---------------------------------------------------------------------------

    \111\ For example, in Davis v. Shah, 821 F.3d 231, 262-63 (2d 
Cir. 2016), the court quoted DOJ: ``a plaintiff ``need not wait 
until the harm of institutionalization or segregation occurs or is 
imminent'' to bring a claim under the ADA. Plaintiff establishes a 
``sufficient risk of institutionalization to make out an Olmstead 
violation if a public entity's failure to provide community services 
. . . will likely cause a decline in health, safety, or welfare that 
would lead to the individual's eventual placement in an 
institution.'' See also, Waskul v. Washtenaw Cnty. Cmty. Mental 
Health, 979 F.3d 426, 462 (6th Cir. 2020) finding ``declines in 
health, safety, or welfare'' as to sufficient to show plaintiffs 
were at serious risk of institutionalization.
---------------------------------------------------------------------------

    Comment: Several commenters argued the Department failed to 
adequately estimate the costs of integration provision as proposed in 
the Regulatory Impact Analysis, citing the Unfunded Mandates Reform Act 
(UMRA). Further, some State officials worried about the impact of the 
integration provision, specifically the ``at serious risk'' on States. 
Some commenters also asked that that the integration provision's 
implementation be delayed in order for States to plan for additional 
costs.
    Response: The final integration provision codifies existing 
responsibilities for recipients, as explained in our responses to 
comments about Sec.  84.76(d). Due to the existing nature of 
recipients' obligations, and the same preexisting obligations under 
title II for public entities, the final rule's integration provision 
places no additional costs on recipients. For the reasons discussed in 
that section, we find the ``at serious risk'' principle to be a well-
established, central tenet of the integration requirement and part of 
enforcement of statutory rights that prohibit discrimination on the 
basis of disability. The rule is thus exempted from and not subject to 
the UMRA, from which Federal regulations that enforce statutory rights 
that prohibit discrimination on the basis of disability are 
exempted.\112\
---------------------------------------------------------------------------

    \112\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------

Fundamental Alteration (Sec.  84.76(e))
    Comments: In response to our request for comment on what may 
constitute a fundamental alteration for recipients who are not public 
entities, various commenters proposed that the creation or offering of 
a new service would be a fundamental alteration for non-public 
entities. Several commenters raised questions about what services a 
covered entity must provide to comply with this section, and whether 
entities, particularly private providers, would be required to create 
new services to support individuals in more integrated settings.
    Response: We note that a recipient is not required to create 
``new'' programs to assist people with disabilities, nor is it required 
to provide a particular standard of care or level of benefits. However, 
recipients must comply with section 504's nondiscrimination 
requirements--including the integration requirement--for the services 
they in fact provide. When a covered entity chooses to provide a 
service, it must do so in a nondiscriminatory fashion by ensuring 
access to that service in the most integrated setting appropriate to 
the needs of the qualified individual.\113\
---------------------------------------------------------------------------

    \113\ See Olmstead v. L.C., 527 U.S. at 603; see also 
Radaszewski v. Maram, 383 F.3d 599, 609 (7th Cir. 2004) (citing 
Olmstead v. L.C., 527 U.S. at 603 n. 14, for the principle ``that 
States must adhere to the ADA's nondiscrimination requirement with 
regard to the services they in fact provide'') (``While `a State is 
not obligated to create new services,' it `may violate Title II when 
it refuses to provide an existing benefit to a disabled person that 
would enable that individual to live in a more community-integrated 
setting.' '').
---------------------------------------------------------------------------

    Recipients may be required to offer services in an integrated 
setting that they have only been offering in segregated settings; that 
is generally not offering a ``new service,'' but instead is ensuring 
the service is offered in integrated settings and not just in 
segregated settings.\114\ However, the expansion of a service to 
different settings or offering a substantially similar service may be a 
fundamental alteration. To the extent that a benefit, including an 
optional benefit, is already provided in institutions or other 
segregated settings as part of the recipient's program, the same or a 
substantially similar \115\ benefit must be offered in an integrated 
setting in a manner that does not incentivize institutional or other 
segregated services over community services, unless extending the 
benefit would constitute a fundamental alteration of the program.
---------------------------------------------------------------------------

    \114\ See U.S. Dep't of Justice, Civil Rights Div., Statement of 
the Department of Justice on Enforcement of the Integration Mandate 
of Title II of the Americans with Disabilities Act and Olmstead v. 
L.C., Question 8 (June 22, 2011), https://archive.ada.gov/olmstead/q&a_olmstead.htm (stating that (p)ublic entities cannot avoid their 
obligations under the ADA and Olmstead by characterizing as a ``new 
service'' services that they currently offer only in institutional 
settings.). See also Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 
2003) (``Here, the precise issue is not whether the state must 
provide the long term care services sought by Mr. Townsend and the 
class members--the state is already providing these services--but in 
what location these services will be provided.'').
    \115\ A substantially similar service is one that is similar in 
substance to the institutional service, even if the service ``might 
vary in format depending on whether it is provided . . . in an 
institution or a community-based setting.'' Radaszewski ex. rel. 
Radaszewski v. Maram, 383 F.3d 599, 610 (7th Cir. 2004).
---------------------------------------------------------------------------

    For example, if a managed care plan offers a Medicaid-funded 
respite care benefit through the temporary placement of an individual 
with a disability in an institutional setting, such as a nursing home 
or Intermediate Care Facility,\116\ but does not offer a comparable 
respite benefit available in an individual with a disability's home, 
that would likely be prohibited discrimination under the rule, unless 
the plan could prove that adding a home-based benefit would be a 
fundamental alteration. Similarly, a hospital system that facilitates 
discharge planning to skilled nursing facilities but does not 
facilitate discharge planning for people with disabilities who wish to 
receive nursing services in their own home may constitute 
``[a]dministering a program or activity that results in unnecessary 
segregation,'' which would violate Sec.  84.76(b) of the final rule. 
This approach is consistent with the existing integration requirement 
under current case law, section 504, and title II of the ADA.\117\
---------------------------------------------------------------------------

    \116\ Please note, these are facilities that require an 
individual to meet eligibility requirements for a certain level of 
care for admission.
    \117\ See, e.g., U.S. Dep't of Justice, Statement of the 
Department of Justice on Enforcement of the Integration Mandate of 
Title II of the Americans with Disabilities Act and Olmstead v. 
L.C., Question 8 (2020), https://www.ada.gov/olmstead/q&a_olmstead.htm; Steimel v. Wernert, 823 F.3d 902, 914 (7th Cir. 
2016).
---------------------------------------------------------------------------

    Because what constitutes a ``fundamental alteration'' is fact-
specific, the Department has not modified the proposed regulatory text.
    Comments: Several commenters asked that the Department address the 
``workforce crisis'' as a basis for a fundamental alteration defense. 
Commenters wrote that national workforce shortages among nursing staff 
and direct care workers create challenges for public and private 
providers. In addition, commenters noted that State budgetary decisions 
constrain public and private providers in their ability to offer 
services, recruit and retain staff, and otherwise provide services to 
all eligible individuals with disabilities, noting that available funds 
and reimbursement rates may be beyond the control of individual 
providers or networks. Commenters also asked that OCR make explicit 
that a determination of whether something constitutes a fundamental 
alteration is fact and context-specific. Some commenters asked for an 
explanation of how an ``effectively working'' Olmstead plan could show 
that a requested modification would require fundamental alteration of 
the covered entity's existing programs or services.
    Response: States and other recipients cannot dismiss their 
obligation to provide community services on the basis that services may 
require changes to the recipients' methods of administration. 
Reimbursement rates, direct workforce pay rates, and network adequacy 
are ``methods of administration'' under Sec.  84.68(b)(3) as well as 
``planning, service system design, funding, or service implementation 
practices'' under Sec.  84.76(d)(4). A recipient might be in violation 
of this section if it adopts reimbursement practices or other

[[Page 40122]]

methods of administration that result in individuals with disabilities 
only being able to receive residential, employment, day habilitation, 
or other necessary support services in segregated settings.\118\
---------------------------------------------------------------------------

    \118\ Public entities may raise a fundamental alteration defense 
by showing that they have developed, and are implementing, a 
comprehensive, effectively working Olmstead plan. To avail 
themselves of such a defense, the entity's plan must have specific 
and reasonable timeframes and measurable goals for which the public 
entity may be held accountable, and the plan must have demonstrated 
success in actually moving individuals to integrated settings in 
accordance with the plan. See, e.g., Brown v. District of Columbia, 
928 F.3d 1070, 1084 (D.C. Cir. 2019); Frederick L. v. Dep't of Pub. 
Welfare, 422 F.3d 151, 157 (3d Cir. 2005); Jensen v. Minn. Dep't of 
Human Servs., 138 F. Supp. 3d 1068, 1072 (D. Minn. 2015).
---------------------------------------------------------------------------

    We restate that fundamental alteration is a fact-specific inquiry 
and that increased cost alone is not necessarily a fundamental 
alteration.\119\ Further, we note that cost and reimbursement decisions 
may be made by multiple entities, including State agencies, managed 
care plans, and private providers. As the Department noted in the 
proposed rule for section 1557, 87 FR 47873, recipients taking on 
financial risk for the delivery of HHS-funded services should 
scrutinize their capitation, reimbursement, quality measurement, and 
incentive structures to ensure that they do not result in the 
unjustified segregation of individuals with disabilities or place 
individuals with disabilities at serious risk of institutionalization 
or segregation. Under circumstances where responsibility for segregated 
and integrated services is shared across multiple entities, for 
example, under a managed care contract, both the State Medicaid agency 
and the contracted entity have obligations under this provision if they 
are both recipients of Federal financial assistance.
---------------------------------------------------------------------------

    \119\ Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1183 
(10th Cir. 2003).
---------------------------------------------------------------------------

    This shared responsibility means, for example, that recipients 
cannot assert that a staffing shortage, in and of itself, demonstrates 
that provision of services would be a fundamental alteration. If the 
recipient can address staffing shortages through pay rates, recruitment 
and retention incentives, flexible scheduling such as split shifts, or 
other actions, it may be required to do so as a reasonable 
modification.\120\
---------------------------------------------------------------------------

    \120\ See United States v. Fla., No. 12-CV-60460, 2023 WL 
4546188, at *59 (S.D. Fla. July 14, 2023) (requiring Florida to 
increase private duty nursing services for medically fragile 
children and requiring the State to address the shortage of nurses 
``by requiring that managed care plans raise PDN reimbursement 
rates, ensuring that the managed care plans comply with network 
adequacy standards, or utilizing any other tool at its disposal.'') 
(under appeal in United States v. Florida, No. 23-12331 (11th Cir.)
---------------------------------------------------------------------------

    The availability of the fundamental alteration defense is clear as 
drafted and so we decline to change the language in the regulation 
text. In this final rule, we clarify a program is not required to 
provide coverage for a service in the most integrated setting 
appropriate to an individual's needs if it would fundamentally alter 
the program to do so.
Technical Assistance
    Comments: Several commenters requested the Department provide 
technical assistance addressing the differences between compliance with 
Medicaid and adherence to civil rights laws, with practical examples 
and best practices. Other commenters suggested that the Department 
provide additional guidance to recipients on how the integration 
provision applies to transitions in care and effective community-based 
supports for those discharged from hospitals, skilled nursing 
facilities, and other institutional settings. Additionally, a few 
commenters recommended the Department offer technical assistance on how 
this regulation will address unfair practices in system design and 
funding.
    Response: We appreciate the comments requesting clarification 
through sub-regulatory guidance. We will consider future guidance after 
this rule has been finalized and remain committed to our continued 
partnership with DOJ and CMS in developing shared guidance on civil 
rights requirements.
Summary of Regulatory Changes
    For the reasons set forth above and considering comments received, 
we are revising Sec.  84.76(b) and (c). Paragraph (b) requires a 
recipient to administer a program or activity in the most integrated 
setting appropriate to the needs of a qualified person with a 
disability. Paragraph (c) discusses integrated settings as settings 
that include (but are not limited to) congregate settings that are 
populated exclusively or primarily with individuals with disabilities, 
and may be characterized by regimentation in daily activities, lack of 
privacy or autonomy, or policies or practices limiting visitors or 
limiting individuals' ability to engage freely in community activities 
and to manage their own activities of daily living.
Subpart H--Communications
    Proposed subpart H addressed requirements related to providing 
effective communication for individuals with disabilities. The 
Department requested comment on the importance of providing information 
in plain language for individuals with cognitive, developmental, 
intellectual, or neurological disabilities. Additionally, the 
Department requested comment on whether plain language is appropriately 
considered a reasonable modification that an individual must request, 
or if it should be considered an auxiliary aid or service.
    The proposed requirements of this subpart are nearly identical to 
the requirements of subpart E, Communications, in the ADA title II 
regulations.\121\
---------------------------------------------------------------------------

    \121\ 28 CFR 35.160 through 35.164.
---------------------------------------------------------------------------

General (Sec.  84.77)
    Proposed Sec.  84.77(a)(1) required recipients to take appropriate 
steps to ensure that communications with individuals with disabilities, 
and companions with disabilities, are as effective as communications 
with individuals without disabilities.
    Proposed Sec.  84.77(1)(2) defined ``companion.''
    Proposed Sec.  84.77(b)(1) required recipients to provide 
appropriate auxiliary aids and services to individuals with 
disabilities where necessary to afford those individuals an equal 
opportunity to benefit from the recipient's program or activity. 
Proposed Sec.  84.77(b)(2) provided criteria for determining which 
auxiliary aid is appropriate. It stated that in order for auxiliary 
aids to be effective, they must be provided in accessible formats, in a 
timely manner, and in such a way as to protect the privacy and 
independence of the individual with a disability.
    Proposed Sec.  84.77(c) provided specifics regarding interpreters. 
It stated that recipients cannot require an individual with a 
disability to bring another individual to interpret. Nor can a 
recipient rely on an adult accompanying an individual with a disability 
to interpret or facilitate communication except in an emergency or when 
an individual with a disability specifically requests that the adult 
interpret, the adult agrees, and reliance on the adult is appropriate. 
Minor children cannot interpret except in an emergency when there is an 
imminent threat and no interpreter is available.
    Proposed Sec.  84.77(d) set forth specific standards that a 
recipient must meet if it chooses to provide qualified interpreters via 
video remote interpreting services.
    The comments and our responses regarding Sec.  84.77 are set forth 
below.

[[Page 40123]]

    Comment: Almost all of the commenters supported ensuring that 
recipients communicate effectively with people with disabilities. 
Disability rights organizations, recipient organizations, and 
individuals acknowledged that in the absence of appropriate auxiliary 
aids and services, people with disabilities are denied access to 
recipient programs and activities, including health care.
    Response: The Department agrees that effective communication with 
people with disabilities is a critical right that benefits members of 
the public and recipients. The provision of sign language interpreters, 
Braille documents, and other appropriate auxiliary aids and services 
helps people with disabilities fully participate in and enjoy the 
benefits of recipient programs and activities from which they would 
otherwise be excluded on the basis of their disability. The importance 
of effective communication cannot be overstated in the context of 
health and human services, which is why the Department proposed the 
updates in subpart H of this rulemaking.
    Comment: Many commenters described the importance of effective 
communication and provided firsthand accounts of instances where they 
were unable to receive health care because recipients did not provide 
them with auxiliary aids or services or reasonable modifications. For 
example, commenters relayed instances where American Sign Language 
interpreters were not provided even after a patient request, 
information was not provided in plain language for people with 
intellectual disabilities, and staff denied patients appropriate 
auxiliary aids and services due to appointment time constraints. Many 
of these commenters also discussed the importance of providing 
effective communication for companions.
    Response: Unfortunately, the Department is aware of many instances 
where people with disabilities were discriminated against because 
recipients denied them effective communication. The Department has 
investigated and resolved many such instances and is aware that other 
Federal agencies have done likewise.\122\ The Department and other 
Federal agencies have issued numerous guidance documents to attempt to 
further educate recipients on their effective communication 
responsibilities.\123\ The Department added subpart H to the proposed 
rule because despite existing communication requirements for people 
with disabilities, it is apparent that some recipients are not 
providing effective communication to people with disabilities.
---------------------------------------------------------------------------

    \122\ See e.g., U.S. Dep't of Health & Human Servs., Off. for 
Civil Rights, HHS Office for Civil Rights Takes Action to Ensure 
Effective Communication for Those Who Are Deaf or Hard of Hearing 
(Nov. 9, 2022), https://www.hhs.gov/about/news/2022/11/09/hhs-office-for-civil-rights-takes-action-to-ensure-effective-communication-for-those-who-are-deaf-or-hard-of-hearing.html; U.S. 
Dep't of Justice, Justice Department Secures Agreement with Hospital 
to Ensure Effective Communication with Deaf Patients and Companions 
(Jan. 4, 2022), https://www.justice.gov/opa/pr/justice-department-secures-agreement-hospital-ensure-effective-communication-deaf-patients.
    \123\ See U.S. Dep't of Health & Human Servs., Off. for Civil 
Rights, Disability Resources for Effective Communication, https://www.hhs.gov/civil-rights/for-individuals/special-topics/hospitals-effective-communication/disability-resources-effective-communication/.
---------------------------------------------------------------------------

    Comment: The majority of the commenters voiced support for 
requiring that all recipients, regardless of employee size, provide 
appropriate auxiliary aids and services to people with disabilities. 
Previously, Sec.  84.52(d)(2) only required recipients with fewer than 
fifteen employees to provide auxiliary aids and services when the 
Director of OCR required those recipients to do so. Commenters stated 
that advancements in technology have made auxiliary aids and services 
affordable and attainable for recipients regardless of their size, 
eliminating the need for any exception. Those commenters also stated 
that the absence of appropriate auxiliary aids and services among small 
health care practices leads to disproportionate harm to patients with 
disabilities who are denied health care. One commenter requested that 
the Department maintain an exception for recipients with fewer than 
fifteen employees due to concerns that providing appropriate auxiliary 
aids and services would be too costly for small recipients.
    Response: The Department agrees with the majority of commenters 
that effective communication is critical for people with disabilities, 
and that harm from a denial of effective communication for a person 
with a disability is the same regardless of the size of a recipient. 
Additionally, the Department expects that auxiliary aids and services 
are affordable and attainable for many recipients. All recipients, 
regardless of size, are not required, in providing effective 
communication, to take any action that the recipient can demonstrate 
would result in a fundamental alteration to the program or activity or 
pose undue financial and administrative burdens. In addition, the vast 
majority of recipients of Federal financial assistance from the 
Department are already required by either title II or title III of the 
ADA to provide auxiliary aids or services in order to ensure effective 
communication. Further, on December 19, 2000, the Department issued a 
notice in the Federal Register that it was exercising its authority 
under Sec.  84.52(d)(2) to require recipients with fewer than fifteen 
employees to provide auxiliary aids to individuals with disabilities 
where the provision of such aids would not significantly impair the 
ability of the recipient to provide its benefits or services.\124\ 
Accordingly, recipients with fewer than fifteen employees have been on 
notice since December of 2000 that the Department interprets section 
504 to require all recipients, regardless of size, to provide 
appropriate auxiliary aids and services. The Department is 
incorporating this obligation to provide appropriate auxiliary aids and 
services in the final rule.
---------------------------------------------------------------------------

    \124\ 65 FR 79368 (Dec. 19, 2000).
---------------------------------------------------------------------------

Plain Language
    Comment: Many individuals and organizations submitted comments on 
the importance of providing plain language in health and human service 
programs and activities. Many commenters stated that plain language is 
a necessity that benefits all individuals, regardless of whether they 
have a disability. Some commenters stated that other groups, including 
individuals with limited English proficiency and people with lower 
education levels, would also benefit from the increased use of plain 
language. Through plain language, people with disabilities will have a 
better understanding of the services they are eligible for and may even 
be able to avoid unnecessary outcomes such as guardianships or the 
removal of children. Some commenters stated that plain language alone 
will not ensure effective communication for all people with 
disabilities and asked the Department to also require that recipients 
provide information through other means, such as audio or visual 
versions of certain standard language.
    Response: The Department agrees that plain language may benefit 
individuals seeking to access a recipient's programs and activities, 
including individuals with disabilities. The Department also agrees 
that plain language alone will not be sufficient to ensure effective 
communication for people with disabilities in all circumstances, 
including for some people with intellectual or developmental 
disabilities. This Communications subpart provides detailed measures 
that

[[Page 40124]]

should be taken to ensure effective communication for individuals with 
disabilities.
    Comment: Many commenters recommended that the Department emphasize 
that plain language is a reasonable modification that can be made 
available to people with disabilities upon request when necessary to 
avoid discrimination. These commenters reasoned that while plain 
language may be vitally important for people with certain disabilities 
to understand important health or human service information, it will 
not be necessary or even beneficial in every circumstance. 
Alternatively, many commenters recommended that the Department specify 
that plain language is an auxiliary aid that a recipient must provide, 
when appropriate, to ensure effective communication for people with 
disabilities. One commenter stated that plain language should only be a 
recommended best practice and should not be an auxiliary aid or 
reasonable modification under this rulemaking because of the cost for 
recipients. One commenter recommended requiring specific standards to 
define plain language. Finally, some commenters requested additional 
technical assistance and guidance from the Department on what 
constitutes plain language and what recipients are required to provide 
to people with disabilities.
    Response: As noted in the preamble to the NPRM, and consistent with 
title II of the ADA, providing information in plain language under some 
circumstances may be a reasonable modification a recipient may have to 
provide to avoid discrimination. It may also be a strategy recipients 
could use to improve their communications with people with 
disabilities. The Department appreciates the range of comments on this 
important issue and recognizes there are benefits and limitations to 
both methods of characterization.
    Because of the wide range of situations in which the need for plain 
language could arise, the Department wants to preserve flexibility for 
both individuals with disabilities and recipients while limiting 
burdens. The Department notes that the effective communication 
provision of Sec.  84.77(a)(1) requires recipients to take steps to 
ensure that their communications with individuals with disabilities are 
``as effective as'' communications with others. In addition, reasonable 
modifications in Sec.  84.68(b)(7)(i) are required when necessary to 
avoid discrimination on the basis of disability. Whether plain language 
is a reasonable modification in any given case will depend on 
particular facts, including the cost to the recipient of providing 
plain language materials or information. Because plain language may 
already be required by other provisions, including Sec.  
84.68(b)(7)(i), the Department declines to adopt any additional 
regulatory text on plain language. Accordingly, the Department will 
retain the current language in the preamble to the proposed rule that 
states plain language may be a reasonable modification to help ensure 
effective communication for people with disabilities.
Augmentative and Alternative Communication
    Comment: Several commenters discussed augmentative and alternative 
communication (AAC) devices and voiced support for their inclusion in 
the rulemaking. Most of those commenters agreed that AAC may be an 
auxiliary aid or service to ensure effective communication for people 
with certain disabilities. Some also stated the Department should alter 
the definition of auxiliary aids and services to explicitly include 
AAC. Similarly, some commenters thought that the Department should 
provide a comprehensive definition of AAC in the rulemaking. One 
commenter stated a belief that the rulemaking should require recipients 
to provide training on the use of AAC devices for people with 
disabilities. One commenter stated that AAC may be a reasonable 
modification to provide effective communication.
    Response: The Department appreciates the support for inclusion of 
language on AAC in the rulemaking and agrees that AAC may be an 
effective method for people with certain disabilities to communicate 
with recipients. The preamble to this section in the proposed rule 
noted that the definition for auxiliary aids and services is open-ended 
and allows for AAC as an appropriate auxiliary aid or service when 
necessary to ensure effective communication for people with 
disabilities. Because of this definition for auxiliary aids and 
services, it is not necessary at this time to edit the definition of 
auxiliary aids and services to explicitly include AAC, or to provide an 
extensive definition of AAC. The definition of auxiliary aids and 
services is purposefully drafted to ensure that it is inclusive of 
unnamed services and actions that provide effective communication. 
Whether training on the use of AAC devices would be a reasonable 
modification to policies, practices, or procedures, as required by this 
rulemaking, depends on specific facts.
    Comment: One commenter recommended specific minor edits to the 
language of subpart H to make communication requirements more expansive 
and clarify how they apply to people with a variety of disabilities. 
Similarly, some commenters requested additional examples be added to 
the list of auxiliary aids and services, additional standards for 
measuring effective communication, and additional general requirements 
for communication with people with disabilities.
    Response: The Department appreciates the recommendations from 
commenters concerning additional edits to effective communication 
requirements and the definition of auxiliary aids and services. We 
acknowledge the recommendations for additions to the language of the 
regulatory text for additional instances that would amount to effective 
communication or provide clarity that certain auxiliary aids and 
services are covered by the rulemaking, but we decline to incorporate 
the suggested changes. The current definition of auxiliary aids and 
services already adequately covers the recommendations from the 
commenters. The definition of ``auxiliary aids and services'' in the 
definitions section at Sec.  84.10 contains a phrase that says that 
auxiliary aids and services include ``other similar services and 
actions.'' The current definition allows for additional auxiliary aids 
not contained in the preceding lists. We will retain the proposed 
language, which aligns with the communication requirements of the 
regulations under title II of the ADA.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.77 as proposed with no 
modifications.
Telecommunications (Sec.  84.78)
    Proposed Sec.  84.78 set forth the requirements that a recipient 
must meet when it communicates with applicants and beneficiaries by 
telephone or an automated-attendant system. Proposed Sec.  84.78(a) 
stated that when a recipient communicates by telephone, text telephones 
(TTYs) or equally effective telecommunications systems shall be used to 
communicate with individuals who are deaf or hard of hearing or have 
speech impairments.
    Proposed Sec.  84.78(b) stated that when an automated-attendant 
system is used, that system must provide effective real-time 
communication with individuals using auxiliary aids and services.

[[Page 40125]]

    Proposed Sec.  84.78(c) stated that a recipient shall respond to 
telephone calls from a telecommunications relay service established 
under title IV of the ADA in the same manner that it responds to other 
telephone calls.
    Comment: An organization that represents individuals with 
disabilities said that they appreciated the requirement in Sec.  
84.78(b) that when a recipient uses an automated-attendant system, 
real-time communication must be provided. However, they asked us to 
underscore that when using such a system, individuals must be able to 
opt out of the system and speak with a live representative.
    Response: The Department appreciates the commenters' feedback. In 
order to be consistent with the title II ADA regulations, we decline to 
add any requirements to this section. However, we strongly urge 
recipients to have a way to communicate with a live person when using 
automated-attendant systems.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.78 as proposed with no 
modifications.
Telephone Emergency Services (Sec.  84.79)
    Proposed Sec.  84.79 stated that telephone emergency services must 
provide direct access to individuals who use TTYs and computer modems.
    Comment: The Department received some comments supportive of this 
section. One commenter suggested that, in addition to 911, the section 
should refer to 988 which is the national suicide and crisis hotline.
    Response: The Department appreciates the commenter's suggestion. 
However, there are other hotlines funded by the Department that also 
could potentially be listed by name in addition to the regulatory 
reference to telephone emergency services. Any such list could quickly 
become outdated and could cause confusion if inconsistent with the 
analogous provision of the regulation implementing title II of the ADA. 
Rather than list every hotline, the Department will keep the section as 
written.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.79 as proposed with no 
modifications.
Information and Signage (Sec.  84.80)
    Proposed Sec.  84.80(a) stated that recipients must ensure that 
interested persons including those with impaired vision or hearing can 
obtain information as to existence and location of accessible services, 
activities, and facilities. Section 84.80(b) stated that recipients 
must provide signage at all inaccessible entrances directing users to 
an accessible entrance or to a location where they can obtain 
information about accessible facilities. The international symbol for 
accessibility must be used at each accessible entrance of a facility.
    Comments: The Department received a few comments on this section. 
One commenter asked that the section include a reference to individuals 
with language disorders such as aphasia. Another commenter asked 
whether the information and signage requirements apply to recipients' 
facilities that are not open to the public. The commenter noted the 
challenges of securing in-person Certified Deaf Interpreters and 
problems with relying on TTY State-operated phone lines.
    Response: With regard to the request that we add language disorders 
to the text of the section, we note that coverage is not limited to 
individuals with impaired vision or hearing. The section requires that 
recipients ensure that all interested persons, including those with 
impaired vision or hearing, can obtain the information. We decline to 
add the requested language since the section already covers individuals 
with language disorders.
    In response to the commenter's question about where signage must be 
placed, the requirement applies to all inaccessible entrances to each 
of a recipient's facilities. The Department recognizes the challenges 
that may be involved in complying with the regulations and notes that 
Sec.  84.81 sets forth the duties of recipients when an action would 
result in a fundamental alteration or undue financial and 
administrative burdens.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.80 as proposed with no 
modifications.
Duties (Sec.  84.81)
    Proposed Sec.  84.81 stated that subpart H does not require 
recipients to take an action that would result in a fundamental 
alteration in the nature of a program or activity or undue financial 
and administrative burdens. It sets forth details about how that 
determination is to be made.
    The comments and our responses regarding Sec.  84.81 are set forth 
below.
    Comment: Many recipient organizations voiced their support for the 
proposed exceptions concerning fundamental alteration or undue 
administrative and financial burdens. Recipient organizations noted 
that some small providers may find it difficult to pay for auxiliary 
aids and services and may rely on the exceptions. Many recipient 
organizations also requested that the Department provide additional 
guidance on instances where providing auxiliary aids or services would 
result in a fundamental alteration or undue burden. Some recipient 
organizations also requested that the Department provide additional 
funding or establish resource centers to provide auxiliary aids or 
services on behalf of recipients.
    Response: As the commenters note, under proposed Sec.  84.81, 
recipients would not be required to provide specific auxiliary aids or 
services, or take a specific action to ensure effective communication, 
if doing so would result in a fundamental alteration in the nature of a 
program or activity or in undue financial and administrative burdens. 
However, a recipient would still be required to take any other action 
that would not result in such an alteration or such burdens while 
providing effective communication to the maximum extent possible. For 
example, even if one type of auxiliary aid or service requested by the 
person with a disability would result in a fundamental alteration of 
the program or activity in question, if another appropriate auxiliary 
aid or service exists that would assist effective communication without 
fundamentally altering the program or activity, the recipient is 
required to offer that other auxiliary aid or service.
    Effective communication, including provision of auxiliary aids and 
services, has been required for decades by the original section 504 
implementing regulation, titles II and III of the ADA, and more 
recently the implementing regulation for section 1557 of the ACA, and 
numerous guidance documents on the topic already exist.\125\ The 
Department remains committed to providing technical assistance and 
education to help recipients understand their legal obligations and so 
that individuals understand their rights.
---------------------------------------------------------------------------

    \125\ See U.S. Dep't of Justice, ADA Requirements: Effective 
Communication (Feb. 28, 2020), https://www.ada.gov/resources/effective-communication/#auxiliary-aids-and-services; U.S. Dep't of 
Health & Human Servs., Off. for Civil Rights, Disability Resources 
for Effective Communication, https://www.hhs.gov/civil-rights/for-individuals/special-topics/hospitals-effective-communication/disability-resources-effective-communication/.

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[[Page 40126]]

Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.81 as proposed without 
modifications.

Subpart I--Web, Mobile, and Kiosk Accessibility \126\
---------------------------------------------------------------------------

    \126\ The Department of Justice recently promulgated new 
regulations implementing title II of the ADA to establish specific 
requirements, including the adoption of specific technical 
standards, for making accessible the web content and mobile apps 
that public entities provide or make available. See regulation to be 
codified at 28 CFR part 35, subpart H. The Department has made every 
effort to align its regulations on the accessibility standards in 
subpart I with DOJ's regulations, to maximize consistency in the 
obligations for web and mobile apps for recipients covered under 
section 504 and public entities covered under title II. Please refer 
to DOJ's rule, including Appendix D to the regulation implementing 
title II, for additional guidance related to this subpart.
---------------------------------------------------------------------------

    Proposed subpart I addressed requirements related to providing 
accessible web content, mobile applications, and kiosks.
    The Department proposed to add six definitions relevant to this 
subpart to the Definitions section in the newly redesignated Sec.  
84.10. We invited comment on the following questions regarding the 
definitions:
     Web Accessibility Question 1: The Department's definition 
of ``conventional electronic documents'' consists of an exhaustive list 
of specific file types. Should the Department instead craft a more 
flexible definition that generally describes the types of documents 
that are covered or otherwise change the proposed definition, such as 
by including other file types (e.g., images or movies), or removing 
some of the listed file types?
     Web Accessibility Question 2: The Department requests 
comment on whether a definition of ``kiosks'' is necessary, and if so, 
requests comment on the Department's proposed definition in Sec.  84.10 
and any suggested revisions to it.
     Web Accessibility Question 3: Are there refinements to the 
definition of ``web content'' the Department should consider? Consider, 
for example, WCAG 2.1's definition of ``web content'' as ``information 
and sensory experience to be communicated to the user by means of a 
user agent, including code or markup that defines the content's 
structure, presentation, and interactions.'' \127\
---------------------------------------------------------------------------

    \127\ W3C[supreg], Web Content Accessibility Guidelines 2.1 
(June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and 
https://perma.cc/UB8A-GG2F.
---------------------------------------------------------------------------

    The comments and responses regarding the definitions are set forth 
below.
    Comment: Many commenters stated that the proposed definition of 
``conventional electronic documents'' should be non-exhaustive to allow 
for broader application, such as other video, audio, image, 
spreadsheet, data files, and new content that has not yet been 
developed. Some commenters objected to the possibility of an open-ended 
definition and prefer the proposed definition the Department provided 
because they are concerned that allowing too much flexibility will lead 
to confusion among recipients and the general public as to what is 
covered.
    Some commenters opposed the inclusion of ``database file formats'' 
in the definition of conventional electronic documents because database 
files and some spreadsheet files may include data that are not 
primarily intended to be human-readable. The commenters stated that in 
many cases such content is intended to be opened and analyzed with 
other special software tools and that data that is not primarily 
intended to be human-readable is equally accessible for individuals 
with disabilities and individuals without disabilities.
    Response: The Department declines to change its approach to 
defining conventional electronic documents. The Department expects that 
a more flexible definition would result in less predictability for both 
recipients and individuals with disabilities, especially because the 
Department does not currently have sufficient information about how 
technology will develop in the future. The Department seeks to avoid 
such uncertainty because the definition of conventional electronic 
documents sets the scope of two exceptions, Sec.  84.85(b) and (d). The 
Department carefully balanced benefits for individuals with 
disabilities with the challenges recipients face in making their web 
content and mobile apps accessible in compliance with this final rule 
when crafting these exceptions, and the Department does not want to 
inadvertently expand or narrow the exceptions with a less predictable 
definition of conventional electronic documents.
    Based on the comments received, the Department has decided to 
delete database file formats from the definition of conventional 
electronic documents. Database files may be less commonly available 
through recipients' web content and mobile apps than other types of 
documents. To the extent that such files are provided or made available 
by recipients, the Department understands that they would not be 
readable by either individuals with disabilities or individuals without 
disabilities if they only contain data that are not primarily intended 
to be human-readable. Therefore, there would be limited accessibility 
concerns, if any, that fall within the scope of the rule associated 
with documents that contain data that are not primarily intended to be 
human-readable. Accordingly, the Department believes it could be 
confusing to include database file formats in the definition. However, 
the Department notes that while there may be limited accessibility 
concerns, if any, related to database files containing data that are 
not primarily intended to be human-readable, recipients may utilize 
these data to create outputs for web content or mobile apps, such as 
tables, charts, or graphs posted on a web page, and those outputs would 
be covered by the rule unless they fall into another exception.
    The Department declines to make additional changes to the list of 
file formats included in the definition of conventional electronic 
documents. After reviewing the range of different views expressed by 
commenters, the Department believes the current list strikes the 
appropriate balance between ensuring access for people with 
disabilities and feasibility for recipients so that they can comply 
with this rule. The list included in the definition is also aligned 
with the Department's intention to cover documents that recipients 
commonly make available in either an electronic form or that would have 
been traditionally available as physical printed output. If recipients 
provide and make available files in formats not included in the 
definition, the Department notes that those other files may qualify for 
the exception in Sec.  84.85(a) if they meet the definition for 
archived web content, or the exception in Sec.  84.85(e) for certain 
preexisting social media posts if they are covered by that exception's 
description. To the extent those other files are not covered by one of 
the exceptions in Sec.  84.85, the Department also notes that 
recipients would not be required to make changes to those files that 
would result in a fundamental alteration in the nature of a program or 
activity, or impose undue financial and administrative burdens, 
consistent with Sec.  84.88.
    Comment: Regarding the definition of ``kiosks,'' many commenters 
stated that they support a broad definition of kiosks that goes beyond 
the Department's proposed definition. Specifically, some commenters 
stated that anything with a user interface in a health care setting 
should be considered a kiosk. Other commenters proposed including a 
variety of physical devices that provide

[[Page 40127]]

a variety of services through both closed and open functionality.
    Response: The comments received covered a wide range of responses 
on definitions for kiosks. We note that the Access Board is currently 
engaged in the early stages of rulemaking around self-service 
transaction machines and self-service kiosks.\128\ In part because of 
the wide range of responses that generally do not agree on a single 
definition, the Department does not believe it is appropriate to make 
changes to the definition of kiosks in this rulemaking. A broader 
definition of kiosks runs the risk of overclassifying devices used in a 
health or human services setting as a kiosk, while identifying specific 
types of physical devices could leave out devices that otherwise 
perform all of the functions normally attributed to kiosks. Because of 
the range of comments received, and because the Access Board is 
currently working towards addressing this issue in its own rulemaking, 
the Department will finalize its definition of kiosks in this rule 
without change from the proposed rule. Once the Access Board has 
finalized its rulemaking, the Department may consider addressing any 
additional issues raised with the Access Board's guidelines.
---------------------------------------------------------------------------

    \128\ 87 FR 57662 (Sept. 21, 2022).
---------------------------------------------------------------------------

    Comment: Regarding the definition of ``web content,'' some 
commenters opined that the definition should more closely align with 
the definition included in WCAG 2.1, especially since the proposed rule 
would include WCAG 2.1. Some of those commenters stated that a 
different definition would cause confusion among technical experts.
    One commenter expressed approval of the proposed definition while 
another requested general clarification of what is covered and what 
specific content will have to be accessible under the proposed rule.
    Response: The Department appreciates the comments and has decided 
to alter the definition of web content to more closely align with the 
definition in WCAG 2.1. The Department's definition in the NPRM was 
based on the WCAG 2.1 definition but was slightly less technical and 
intended to be more easily understood by the public generally. The 
Department decided to align the definition of ``web content'' with the 
definition in WCAG 2.1 in the final rule to avoid confusion, ensure 
consistency in application of WCAG 2.1, and assist technical experts in 
implementing this rule. Consistent with the suggestion of commenters, 
the Department believes this approach minimizes possible inadvertent 
conflicts between the type of content covered by the Department's 
regulatory text and the content covered by WCAG 2.1. Accordingly, the 
Department will use the WCAG 2.1 definition but also include the 
specific examples in a second sentence. This second sentence may be 
particularly useful for members of the public without a technical 
background.
    Beyond the definition provided, as well as the preamble language 
explaining the definition, the Department remains committed to 
providing technical assistance and guidance to recipients so that they 
are able to fully comply with this rule. We also note that there is a 
period for recipients to become familiar with the web content 
compliance obligations before they come into effect, which will be two 
or three years depending on the size of the recipient.
    The Department also added a definition for ``user agent.'' The 
definition exactly matches the definition of user agent in WCAG 
2.1.\129\ WCAG 2.1 includes an accompanying illustration, which 
clarifies that the definition of user agent means ``[w]eb browsers, 
media players, plug-ins, and other programs--including assistive 
technologies--that help in retrieving, rendering, and interacting with 
web content.'' \130\
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    \129\ See W3C, Web Content Accessibility Guidelines 2.1 (June 5, 
2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ [https://perma.cc/R6KE-BX3U].
    \130\ Id.
---------------------------------------------------------------------------

    The Department added this definition to the final rule to ensure 
clarity of the term ``user agent,'' which appears in the definition of 
``web content'' requested by commenters and now adopted by the 
Department. As discussed, the Department has more closely aligned the 
definition of ``web content'' in the final rule with the definition in 
WCAG 2.1. Because this change introduced the term ``user agent'' into 
the section 504 regulation, and the Department does not believe this is 
a commonly understood term, the Department has added the definition of 
``user agent'' provided in WCAG 2.1 to the final rule. The Department 
also believes adding this definition in the final rule is consistent 
with the suggestions of commenters who proposed aligning the definition 
of ``web content'' with the definition in WCAG 2.1.
    Accordingly, we are finalizing the definition of ``kiosks'' with no 
modifications, editing ``conventional electronic documents'' and ``web 
content,'' and adding the definition of ``user agent,'' in Sec.  84.10. 
As further discussed in the preamble to subpart A and Sec.  84.85(a), 
we are also revising the definition of ``archived web content.''
Application (Sec.  84.82)
    Proposed Sec.  84.82 stated that this subpart applies to all 
programs and activities that receive Federal financial assistance from 
the Department.
    The Department is finalizing Sec.  84.82 as proposed.
Accessibility of Kiosks (Sec.  84.83)
    Proposed Sec.  84.83 articulated a general nondiscrimination 
requirement for programs and activities provided through kiosks.
    The comments and our responses regarding Sec.  84.83 are set forth 
below.
    Comment: Many commenters expressed support for the inclusion of 
kiosks in the proposed rule, noting that kiosks have become more 
prevalent in health care settings and that often these kiosks are not 
accessible for people with disabilities. Many of these same commenters 
stated that the Department should require specific accessibility 
standards for kiosks beyond the general accessibility requirement 
proposed. Some commenters proposed specific functional standards that 
they believe are important for kiosk accessibility. Some commenters 
expressed approval of allowing for recipients to provide alternate 
methods for people with disabilities to access the programs and 
activities typically offered through kiosks, such as personnel to check 
in patients in a waiting area.
    Response: The expanded use of kiosks, especially in medical 
settings, has allowed for recipients to automate portions of their 
programs and activities, but recipients must take into account the 
needs of people with disabilities in order to comply with civil rights 
laws, including section 504. Current Federal laws and regulations 
require the accessibility of all programs and activities of recipients 
of Federal financial assistance, including those provided through 
kiosks.\131\ However, the Department believes it is necessary to 
include a general nondiscrimination provision specific to kiosks in 
this rulemaking because of how prevalent they have become and because 
if they

[[Page 40128]]

are not designed with people with disabilities in mind they may serve 
as barriers to recipient programs and activities. Accordingly, the 
Department is finalizing a provision highlighting the application of 
general nondiscrimination requirements to recipients that use kiosks in 
their programs and activities.
---------------------------------------------------------------------------

    \131\ See, e.g., 45 CFR 92.104; 45 CFR 84.4, redesignated as 
Sec.  84.68. Note that compliance with these web and mobile 
accessibility requirements does not remove covered entities' 
obligations under title I of the ADA to not discriminate against 
qualified individuals on the basis of disability in regard to job 
application procedures; the hiring, advancement, or discharge of 
employees; employee compensation; job training; or other terms, 
conditions, and privileges of employment. These obligations include 
making reasonable accommodation to the known physical or mental 
limitations of applicants or employees, absent undue hardship.
---------------------------------------------------------------------------

    While there is support among commenters for the rulemaking to 
impose measurable accessibility standards for kiosks, similar to those 
required of web content, mobile applications, and medical diagnostic 
equipment (MDE) in this rulemaking, the Department does not believe 
that is feasible at this time. While WCAG 2.1 and the Access Board's 
MDE Standards were both created after years of research, input, and 
testing, no comparable standard currently exists for kiosks, except to 
the extent that kiosks rely on web content or mobile apps as defined in 
Sec.  84.10. The Access Board submitted an advanced notice of proposed 
rulemaking that sought public comment on requirements for self-service 
transaction machines, but that rulemaking has not been finalized.\132\
---------------------------------------------------------------------------

    \132\ 87 FR 57662 (Sept. 21, 2022).
---------------------------------------------------------------------------

    Recipients that use kiosks must make their programs accessible to 
persons with disabilities and may do so by instituting procedures that 
would allow persons with disabilities who cannot use kiosks because of 
their inaccessible features to access the program without using 
kiosks.\133\ For example, a clinic or a social services office may 
allow persons with disabilities to go directly to the personnel at the 
main desk to register for necessary services. Such work-around 
procedures must afford persons with disabilities the same access, the 
same convenience, and the same confidentiality that the kiosk system 
provides.
---------------------------------------------------------------------------

    \133\ 45 CFR 84.22(b).
---------------------------------------------------------------------------

    In instances where kiosks are closed functionality devices that do 
not rely on web content or mobile apps, the proposed technical 
standards in Sec.  84.84 will not apply. Under these circumstances, 
recipients are still obligated to ensure that individuals with 
disabilities are not excluded from participation in, denied the 
benefits of, or otherwise subjected to discrimination in any program or 
activity of the recipient, including the information exchange that 
would occur at the kiosk. This may require the recipient to provide 
reasonable modifications to policies, practices, or procedures, as 
required by Sec.  84.68(b)(7), and take appropriate steps to ensure 
effective communication, including through the provision of appropriate 
auxiliary aids and services, which include accessible electronic and 
information technology, as required by subpart H.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.83 as proposed without 
modifications.
Requirements for Web and Mobile Accessibility (Sec.  84.84)
    Proposed Sec.  84.84(a) stated that recipients must ensure their 
web content and mobile applications made available to members of the 
public or used to offer programs or activities to members of the public 
must be readily accessible to and usable by individuals with 
disabilities.
    Proposed Sec.  84.84(b) required that recipients ensure their web 
content and mobile applications made available to members of the public 
or used to offer programs or activities to members of the public comply 
with the success criteria and conformance requirements of WCAG 2.1 
Level A and Level AA within two or three years of the publication of 
this rule, depending on whether the recipient has fifteen or more 
employees, or fewer than fifteen employees, respectively. The section 
incorporated WCAG 2.1 by reference.
    We invited comment on the following questions:
     Web Accessibility Question 4: Are there technical 
standards or performance standards other than WCAG 2.1 that the 
Department should consider? For example, if WCAG 2.2 is finalized 
before the Department issues a final rule, should the Department 
consider adopting that standard? If so, what is a reasonable time frame 
for recipient conformance with WCAG 2.2 and why? Is there any other 
standard that the Department should consider, especially in light of 
the rapid pace at which technology changes?
     Web Accessibility Question 5: What compliance costs and 
challenges might small recipients face in conforming with this rule? 
How accessible are small recipients' current web content and mobile 
apps? Do small recipients have internal staff to modify their web 
content and mobile apps, or do they use outside consulting staff to 
modify and maintain their web content and mobile apps? If small 
recipients have recently, for example in the past three years, modified 
their web content and mobile apps to make them accessible, what costs 
were associated with those changes?
     Web Accessibility Question 6: Should the Department adopt 
a different WCAG version or conformance level for small recipients or a 
subset of small recipients?
     Web Accessibility Question 7: How do recipients use social 
media platforms and how do members of the public use content made 
available by recipients on social media platforms? What kinds of 
barriers do people with disabilities encounter when attempting to 
access recipients' services via social media platforms?
     Web Accessibility Question 8: How do recipients use mobile 
apps to make information and services available to the public? What 
kinds of barriers do people with disabilities encounter when attempting 
to access recipients' programs and activities via mobile apps? Are 
there any accessibility features unique to mobile apps that the 
Department should be aware of?
     Web Accessibility Question 9: Is WCAG 2.1 Level AA the 
appropriate accessibility standard for mobile apps? Should the 
Department instead adopt another accessibility standard or alternatives 
for mobile apps, such as the requirements from section 508 discussed 
above?
     Web Accessibility Question 10: How will the proposed 
compliance date affect small recipients? Are there technical or budget 
constraints that small recipients would face in complying with this 
rule, such that a longer phase-in period is appropriate?
     Web Accessibility Question 11: How will the proposed 
compliance date affect people with disabilities, particularly in rural 
areas?
     Web Accessibility Question 12: How should the Department 
define ``small recipient''? Should categories of small recipients other 
than those already delineated in this proposed rule be subject to a 
different WCAG 2.1 conformance level or compliance date?
     Web Accessibility Question 13: Should the Department 
consider factors other than the number of employees, such as annual 
budget, when establishing different or tiered compliance requirements? 
If so, what should those factors be, why are they more appropriate than 
the number of employees, and how should they be used to determine 
regulatory requirements?
     Web Accessibility Question 14: Should the Department 
consider other methods to ensure that a recipient that is also a public 
entity under title II of the ADA has a single compliance period to come 
into conformance with WCAG 2.1 AA? If so, what should those methods be?
     Web Accessibility Question 15: Should the Department 
consider a

[[Page 40129]]

different compliance date for the captioning of live-audio content in 
synchronized media or exclude some recipients from the requirement? If 
so, when should compliance with this success criterion be required and 
why? Should there be a different compliance date for different types or 
sizes of recipients?
     Web Accessibility Question 16: What types of live-audio 
content do small recipients post? What has been the cost for providing 
live-audio captioning?
    The comments and our responses regarding Sec.  84.84 are set forth 
below.
    Comment: Some commenters expressed concern that, as written, the 
rule would not apply to third party vendors that recipients contract 
with to create and maintain web content or mobile apps. Commenters 
noted that many recipients rely on third parties to create or update 
their web content and mobile apps, and that any rulemaking that does 
not clearly address those third parties would risk causing confusion 
and noncompliance.
    Response: As the Department made clear in the preamble of the 
proposed rule, its intent is that websites operated on behalf of a 
recipient by a third party be covered by the rule. Based on the 
comments it received, the Department has determined that it should edit 
Sec. Sec.  84.84(a)(1) and (2) and (b)(1) and (2) and 84.85(c) to make 
clear that the general requirements for web content and mobile app 
accessibility apply when a recipient, ``directly or through 
contractual, licensing, or other arrangements,'' provides or makes 
available web content or mobile apps. These edits will dispel any doubt 
that recipients cannot delegate away their obligations under section 
504.
    The phrase ``directly or through contractual, licensing, or other 
arrangements'' comes from existing regulatory language in section 504. 
The section on general prohibitions against discrimination in the 
existing section 504 regulation says that ``[a] recipient, in providing 
any aid, benefit, or service, may not, directly or through contractual, 
licensing, or other arrangements, on the basis of disability'' engage 
in various forms of discrimination.\134\ The Department intentionally 
used the same phrasing in this rule to indicate that where recipients 
act through third parties using contractual, licensing, or other 
arrangements, they are not relieved of their obligations under this 
subpart.
---------------------------------------------------------------------------

    \134\ 45 CFR 84.4(b)(1) and (4).
---------------------------------------------------------------------------

    Further, the Department notes that the phrase ``provides or makes 
available'' in Sec.  84.84 is not intended to mean that Sec.  84.84 
only applies where the recipient created or owns the web content or 
mobile app. The plain meaning of ``make available'' includes situations 
where a recipient relies on a third party to operate or furnish 
content. Section 84.84 means that recipients provide or make available 
web content and mobile apps even where recipients do not design or own 
the web content or mobile app, if there is a contractual, licensing, or 
other arrangement through which the recipient uses the web content or 
mobile app to provide a program or activity.
    The Department made another minor revision to Sec.  84.84(a)(1) and 
(2). In the NPRM, Sec.  84.84(a)(1) and (2) applied to web content and 
mobile apps that a recipient ``makes available to members of the public 
or uses to offer programs or activities to members of the public.'' 
\135\ In the final rule, the Department revised Sec.  84.84(a)(1) and 
(2) to apply to web content and mobile apps that a recipient ``provides 
or makes available.'' The Department also made corresponding revisions 
to the language of Sec.  84.84(b)(1) and (2). The Department notes that 
the revised language does not change or limit the coverage of the final 
rule as compared to the NPRM. Rather, this change ensures consistency 
between the regulations implementing section 504 and title II of the 
ADA, respectively, and the broad coverage that both regulatory 
frameworks provide. The Department's section 504 regulation, at Sec.  
84.2, applies to all programs or activities of recipients; the title II 
regulation, at 28 CFR 35.102, states that the regulation applies to all 
services, programs, and activities ``provided or made available'' by 
covered entities. The Department therefore employs the ``provided or 
made available'' language in the final rule to avoid introducing 
confusion as to scope of coverage for recipients covered by both 
frameworks and maintain consistency between section 504 and title II.
---------------------------------------------------------------------------

    \135\ 88 FR 63392, 63509 (Sept. 14, 2023).
---------------------------------------------------------------------------

    Comment: Almost all of the comments on subpart I supported the 
general concept of requiring that the web content, mobile applications, 
and kiosks used by recipients be accessible to people with 
disabilities. Commenters noted the importance of web content, mobile 
applications, and kiosks in the delivery of health care, including 
their expanded importance during the COVID-19 Public Health Emergency, 
and pointed out specific instances where the only way to access a 
recipient's programs and activities was through web content, mobile 
applications, and kiosks. Commenters also stated that there are severe 
consequences when recipients do not provide accessible web content, 
mobile applications, and kiosks, including barriers to access to 
necessary health care, poor health outcomes, and even death for people 
with disabilities. Many commenters noted that some current web content, 
mobile applications, and kiosks are not designed with accessibility in 
mind, meaning that people with certain disabilities are unable to use 
them. Many commenters also expressed their agreement with the concept 
of a set standard to provide recipients and individuals certainty when 
determining whether web content, mobile applications, and kiosks are 
accessible under the law.
    Response: The Department appreciates the comments and agrees that 
ensuring web content, mobile applications, and kiosks that recipients 
provide or make available are accessible to people with disabilities is 
necessary to avoid discrimination, health disparities, and poor 
outcomes. Recipients are increasingly using technology as part of their 
programs and activities, and unless that technology is accessible, 
people with disabilities will be left behind. The Department believes 
that adopting technical standards for web content and mobile app 
accessibility provides clarity to recipients regarding how to make 
accessible the programs and activities they offer via the web and 
mobile apps. Adopting specific technical standards for web content and 
mobile app accessibility also provides individuals with disabilities 
with consistent and predictable access to the web content and mobile 
apps of recipients. Web content, mobile apps, and kiosks already play a 
large role in the health and human services programs and activities 
offered by recipients, and that role will likely continue to grow in 
the future. This rulemaking is necessary given these realities.
    Comment: A minority of commenters expressed displeasure with 
certain aspects of proposed subpart I, including a concern that any new 
requirements for web content, mobile app, and kiosk accessibility would 
result in financial burdens that would cause small clinics to shut 
down. One commenter also expressed opposition to preamble language that 
stated a phone line operated 24 hours a day, 7 days a week, would not 
be an acceptable alternative to providing accessible web content, 
mobile applications, and kiosks.
    Response: The Department appreciates the concerns of these

[[Page 40130]]

commenters and has taken steps to reduce burdens on small recipients. 
Under Sec.  84.84(b)(2) of the final rule, small recipients, like all 
other recipients, need to conform to WCAG 2.1 Level AA,\136\ but small 
recipients have three years, instead of the two years provided to 
larger recipients, to come into compliance. In addition, small 
recipients (like all recipients) can rely on the five exceptions set 
forth in Sec.  84.85, in addition to the other mechanisms that are 
designed to make it feasible for all recipients to comply with the 
rule, as set forth in Sec. Sec.  84.86, 84.87, 84.88, and 84.89. 
Recipients are not required to take action that would constitute a 
fundamental alteration in the nature of a program or activity or an 
undue financial or administrative burden. As discussed in the 
NPRM,\137\ and consistent with DOJ's 2022 guidance on web accessibility 
\138\ and DOJ's recent proposed title II rulemaking, 
``Nondiscrimination on the Basis of Disability; Accessibility of Web 
Information and Services of State and Local Government Entities,'' 
\139\ the Department does not believe that a phone line, even if it is 
staffed 24 hours a day, can realistically provide equal opportunity to 
people with disabilities. Websites--and often mobile apps--allow 
members of the public to get information or request a service within 
just a few minutes, and often to do so independently. Getting the same 
information or requesting the same service using a staffed phone line 
takes more steps and may result in wait times or difficulty getting the 
information. In addition, a staffed telephone line may not be 
accessible to someone who is deafblind, or who may have combinations of 
other disabilities, such as a coordination issue impacting typing; and 
an audio processing disability impacting comprehension over the phone. 
However, such individuals may be able to use web content and mobile 
apps that are accessible.
---------------------------------------------------------------------------

    \136\ The Web Accessibility Initiative published some revisions 
to WCAG 2.1 on September 21, 2023. See W3C, Web Content 
Accessibility Guidelines (WCAG) 2.1 (Sept. 21, 2023), https://www.w3.org/TR/WCAG21/ [https://perma.cc/4VF7-NF5F]. However, this 
rule requires conformance to the version of WCAG 2.1 that was 
published in 2018. W3C, Web Content Accessibility Guidelines 2.1 
(June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and 
https://perma.cc/UB8A-GG2F. The Department believes that recipients 
have not had sufficient time to become familiar with the 2023 
version. Recipients also may not have had an adequate opportunity to 
comment on whether the Department should adopt the 2023 version, 
which was published after the NPRM was published. One recent 
revision to WCAG 2.1 relates to Success Criterion 4.1.1, which 
addresses parsing. W3C has described Success Criterion 4.1.1 as 
``obsolete'' and stated that it ``is no longer needed for 
accessibility.'' W3C, WCAG 2 FAQ, https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/24FK-V8LS] (Oct. 
5, 2023). According to the 2023 version of WCAG, Success Criterion 
4.1.1 ``should be considered as always satisfied for any content 
using HTML or XML.'' W3C, Web Content Accessibility Guidelines 
(WCAG) 2.1 (Sept. 21, 2023), https://www.w3.org/TR/WCAG21/ [https://perma.cc/4VF7-NF5F]. The Department believes that either adopting 
this note from the 2023 version of WCAG or not requiring conformance 
to Success Criterion 4.1.1 is likely to create significant 
confusion. And although Success Criterion 4.1.1 has been removed 
from WCAG 2.2, W3C, WCAG 2 FAQ, https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/45DS-RRYS] (Oct. 
5, 2023), the Department has decided not to adopt WCAG 2.2 for the 
reasons described herein. Therefore, conformance to Success 
Criterion 4.1.1 is still required by this rule. Recipients that do 
not conform to Success Criterion 4.1.1 would nonetheless be able to 
rely on Sec.  84.89 to satisfy their obligations under this rule if 
the failure to conform to Success Criterion 4.1.1 would not affect 
the ability of individuals with disabilities to use the recipient's 
web content or mobile app in the manner described in that section. 
The Department expects that this provision will help recipients 
avoid any unnecessary burden that might be imposed by Success 
Criterion 4.1.1.
    \137\ 88 FR 63392, 63420 (Sept. 14, 2023).
    \138\ U.S. Dep't of Justice, Guidance on Web Accessibility and 
the ADA, ADA.gov (March 18, 2022), https://www.ada.gov/resources/web-guidance/ [https://perma.cc/WH9E-VTCY] (this guidance did not 
include 24/7 staffed telephone lines as alternatives to accessible 
websites).
    \139\ 88 FR 51948, 51953 (Aug. 4, 2023) (stating that DOJ ``no 
longer believes 24/7 staffed telephone lines can realistically 
provide equal access to people with disabilities.'').
---------------------------------------------------------------------------

    While existing civil rights laws, including the ADA and section 
1557, already require that many of the recipients covered by section 
504 make their web content, mobile apps, and kiosks accessible to 
people with disabilities, the Department believes, and the majority of 
commenters agree, that a regulation with a set standard is the most 
effective method to ensure that recipients are fulfilling their civil 
rights obligations.
    Comment: Many commenters noted that in October of 2023, W3C issued 
WCAG 2.2 and requested that the Department use WCAG 2.2 instead of WCAG 
2.1 as the accessibility standard for web content and mobile apps in 
this rulemaking. Those commenters stated that WCAG 2.2 includes new 
success criteria and builds off of WCAG 2.1, providing additional 
accessibility for people with disabilities without undermining key 
provisions from WCAG 2.1. Some commenters stated that the appropriate 
standards for this rulemaking are those set forth under the regulations 
for section 508 of the Rehabilitation Act \140\ since it applies to all 
information and communication technology (ICT) rather than just web 
content. Some commenters also want the Department to impose additional 
standards for specific file types, such as PDF/UA1 for pdfs. Some 
commenters requested that the Department establish an evolving standard 
that automatically upgrades to the most recently released WCAG version, 
reasoning that both technology and standards to make that technology 
accessible are constantly changing. One commenter stated that they hope 
the Department will adopt whatever standard DOJ adopts in its title II 
web content rulemaking to make compliance with multiple standards 
easier for recipients that are covered by both rulemakings (89 FR 
31320, April 24, 2024). Some commenters requested that there be no 
standard for compliance and recipients would simply be encouraged to 
conform to WCAG and make sure that their web content and mobile 
applications are generally accessible.
---------------------------------------------------------------------------

    \140\ 36 CFR part 1194, appendix A.
---------------------------------------------------------------------------

    Response: The Department appreciates the range of responses 
received and recognizes that there are various possible technical 
standards for this rulemaking. The Department has determined that WCAG 
2.1 Level AA \141\ is the most appropriate standard for this 
rulemaking. As some commenters noted, WCAG 2.1 Level AA is a widely 
used and accepted industry standard for accessibility, and requiring 
conformance to WCAG 2.1 Level AA would result in a significant step 
forward in ensuring access for people with disabilities. In addition, 
because WCAG 2.1 Level AA was published in 2018, web developers and 
recipients have had time to familiarize themselves with it. The WCAG 
standards were designed to be ``technology neutral.'' \142\ This means 
that they are designed to be broadly applicable to current and future 
web technologies.\143\ Thus, WCAG 2.1 also allows web and mobile app 
developers flexibility and potential for innovation. WCAG 2.1 Level AA 
also includes success criteria addressing the accessibility of mobile 
apps or web content viewed on a mobile device.
---------------------------------------------------------------------------

    \141\ Conformance to Level AA requires satisfying the success 
criteria labeled Level A as well as those labeled Level AA, in 
addition to satisfying the relevant conformance requirements.
    \142\ W3C, Introduction to Understanding WCAG (June 20, 2023), 
https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
    \143\ See W3C, Understanding Techniques for WCAG Success 
Criteria (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL].
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    WCAG 2.2 was released on October 5, 2023, and adds six additional 
Level A and AA success criteria beyond those included in WCAG 2.1 while 
removing

[[Page 40131]]

the success criteria for parsing.\144\ The Department recognizes that 
WCAG 2.2 is a newer standard, but in crafting this final rule the 
Department sought to balance benefits for individuals with disabilities 
with feasibility for recipients making their content accessible in 
compliance with this rule. The Department believes there will be fewer 
resources and less guidance available to web professionals and 
recipients on the new success criteria in WCAG 2.2. Given the benefits 
of WCAG 2.2 highlighted by commenters, some recipients might choose to 
implement WCAG 2.2 to provide an even more accessible experience for 
individuals with disabilities and to increase customer service 
satisfaction. The Department notes that this rule provides for 
equivalent facilitation in Sec.  84.87, meaning recipients could choose 
to comply with this rule by conforming their web content to WCAG 2.2 
Level AA because WCAG 2.2 Level AA provides substantially equivalent or 
greater accessibility and usability to WCAG 2.1 Level AA. This would be 
sufficient to meet the standard for equivalent facilitation in Sec.  
84.87, which is discussed in more detail later.
---------------------------------------------------------------------------

    \144\ W3C[supreg], Web Content Accessibility Guidelines 2.2 
(Oct. 5, 2023), https://www.w3.org/TR/WCAG22/.
---------------------------------------------------------------------------

    For several legal reasons, the Department is unable to adopt an 
evolving standard that continuously updates to the newest version of 
WCAG. First, the Department is incorporating WCAG 2.1 Level AA by 
reference into this rule and must abide by the Office of the Federal 
Register's regulation regarding incorporation by reference.\145\ This 
regulation states that ``[i]ncorporation by reference of a publication 
is limited to the edition of the publication that is approved [by the 
Office of the Federal Register]. Future amendments or revisions of the 
publication are not included.'' \146\ Accordingly, the Department only 
incorporates a particular version of the technical standard and does 
not state that future versions of WCAG would be automatically 
incorporated into the rule. In addition, the Department has concerns 
about regulating to a future standard of WCAG that has yet to be 
created, of which the Department has no knowledge, and for which 
compatibility with section 504 and recipients' content is uncertain. 
The Department believes that adopting WCAG 2.1 as the technical 
standard for this final rule is more appropriate than adopting WCAG 
2.0. WCAG 2.1 provides for important accessibility features that are 
not included in WCAG 2.0, and an increasing number of governmental 
entities are using WCAG 2.1. A number of countries that have adopted 
WCAG 2.0 as their standard are now making efforts to move or have moved 
to WCAG 2.1.\147\ In countries that are part of the European Union, 
public sector websites and mobile apps generally must meet a technical 
standard that requires conformance with the WCAG 2.1 success 
criteria.\148\ And WCAG 2.0 is likely to become outdated or less 
relevant more quickly than WCAG 2.1. As discussed above, WCAG 2.2 was 
recently published and includes even more success criteria for 
accessibility.
---------------------------------------------------------------------------

    \145\ See 1 CFR 51.1(f).
    \146\ Id.
    \147\ See, e.g., Exploring WCAG 2.1 for Australian government 
services, Austl. Gov't Digital Transformation Agency (Aug. 22, 
2018), https://www.dta.gov.au/blogs/exploring-wcag-21-australian-government-services. A Perma archive link was unavailable for this 
citation; W3C, Denmark (Danmark) (updated Mar. 15, 2023), https://www.w3.org/WAI/policies/denmark/#bekendtg%C3%B8relse-om-afgivelse-af-tilg%C3%A6ngelighedserkl%C3%A6ring-for-offentlige-organers-websteder-og-mobilapplikationer [https://perma.cc/K8BM-4QN8]; see 
also W3C, Web Accessibility Laws & Policies (updated Dec. 2023), 
https://www.w3.org/WAI/policies/ [https://perma.cc/6SU3-3VR3].
    \148\ Web Accessibility, European Comm'n (updated July 13, 
2022), https://digital-strategy.ec.europa.eu/en/policies/web-accessibility [https://perma.cc/LSG9-XW7L]; Accessibility 
Requirements for ICT Products and Services, European Telecomm. 
Standards Inst., 45-51, 64-78 (Mar. 2021), https://www.etsi.org/deliver/etsi_en/301500_301599/301549/03.02.01_60/en_301549v030201p.pdf [https://perma.cc/5TEZ-9GC6].
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    The Department expects that the wide usage of WCAG 2.0 lays a solid 
foundation for recipients to become familiar with and implement WCAG 
2.1's additional Level A and AA criteria. The Department understands 
that dozens of States either use or strive to use WCAG 2.0 or greater--
either on its own or by way of implementing the section 508 technical 
standards--for at least some of their web content. It appears that at 
least ten States--Alaska, Delaware, Georgia, Louisiana, Massachusetts, 
Oregon, Pennsylvania, South Dakota, Utah, and Washington--already 
either use WCAG 2.1 or strive to use WCAG 2.1 for at least some of 
their web content. Given that WCAG 2.1 is a more recent standard than 
WCAG 2.0, adds some important criteria for accessibility, and has been 
in existence for long enough for web developers and recipients to get 
acquainted with it, the Department views it as more appropriate for 
adoption in this final rule than WCAG 2.0. In addition, even to the 
extent recipients are not already acquainted with WCAG 2.1, those 
recipients will have two or three years to come into compliance with a 
final rule, which should also provide sufficient time to become 
familiar with and implement WCAG 2.1. The Department also declines to 
adopt the Access Board's section 508 standards, which are harmonized 
with WCAG 2.0, for the same reasons it declines to adopt WCAG 2.0.
    The Department has coordinated with DOJ and their rulemaking 
revising the regulation implementing title II of the ADA to establish 
specific requirements, including the adoption of specific technical 
standards, for making accessible the services, programs, and activities 
offered by State and local government entities to the public through 
the web and mobile apps, to eliminate or minimize instances where 
recipients that are also public entities under title II will be held to 
different standards. The goal of the Department is to issue clear and 
comprehensive rulemaking that requires accessibility for people with 
disabilities without causing unnecessary confusion among recipients.
    The Department declines to adopt additional technical standards 
related to documents-. As discussed, the WCAG standards were designed 
to be ``technology neutral'' \149\ and are designed to be broadly 
applicable to current and future web technologies. The Department is 
concerned that adopting multiple technical standards related to 
different types of web content and content in mobile apps could lead to 
confusion. However, the Department notes that this rule allows for 
equivalent facilitation in Sec.  84.87, meaning that recipients could 
still choose to comply with additional standards or guidance related to 
documents to the extent that the standard or technique used provides 
substantially equivalent or greater accessibility and usability.
---------------------------------------------------------------------------

    \149\ W3C, Introduction to Understanding WCAG (June 20, 2023), 
https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
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    Finally, the Department does not intend to simply recommend that 
recipients make their web content and mobile apps accessible without 
requiring specific standards and methods of enforcement. As discussed 
in the NPRM, a variety of voluntary standards and structures have been 
developed for the web through nonprofit organizations using 
multinational collaborative efforts. For example, domain names are 
issued and administered through the internet Corporation for Assigned 
Names and Numbers, the internet Society publishes computer security 
policies and procedures for websites, and the World

[[Page 40132]]

Wide Web Consortium (``W3C'') develops a variety of technical standards 
and guidelines ranging from issues related to mobile devices and 
privacy to internationalization of technology. In the area of 
accessibility, the Web Accessibility Initiative (``WAI'') of the W3C 
created the WCAG.
    Many organizations, however, have indicated that voluntary 
compliance with these accessibility guidelines has not resulted in 
equal access for people with disabilities; accordingly, they have urged 
the Department to take regulatory action to ensure web content and 
mobile app accessibility.\150\ The National Council on Disability, an 
independent Federal agency that advises the President, Congress, and 
other agencies about programs, policies, practices, and procedures 
affecting people with disabilities, has similarly emphasized the need 
for regulatory action on this issue.\151\
---------------------------------------------------------------------------

    \150\ See, e.g., Letter from Am. Ass'n of People with 
Disabilities et al. to the Department (Feb. 24, 2022), https://www.aapd.com/wp-content/uploads/2022/03/HHS_Disability-Advocates-Memo-02.24.22.pdf (noting that increased use of telehealth has led 
to some accessibility challenges for individuals with disabilities 
and requesting that the Department provide clear guidance on 
telehealth accessibility requirements); Letter from American Council 
of the Blind et al. to U.S. Dep't of Justice. (Feb. 28, 2022), 
https://acb.org/accessibility-standards-joint-letter-2-28-22 
[https://perma.cc/R77M-VPH9] (citing research showing persistent 
barriers in digital accessibility); Letter from Consortium for 
Citizens with Disabilities to U.S. Dep't of Justice. (Mar. 23, 
2022), https://www.c-c-d.org/fichiers/CCD-Web-Accessibility-Letter-to-DOJ-03232022.pdf [https://perma.cc/Q7YB-UNKV].
    \151\ National Council on Disability, The Need for Federal 
Legislation and Regulation Prohibiting Telecommunications and 
Information Services Discrimination (Dec. 19, 2006), https://www.ncd.gov/publications/2006/Dec282006 [ https://perma.cc/7HW5-NF7P] (discussing how competitive market forces have not proven 
sufficient to provide individuals with disabilities access to 
telecommunications and information services); see also, e.g., 
National Council on Disability, National Disability Policy: A 
Progress Report (Oct. 7, 2016), https://ncd.gov/progressreport/2016/progress-report-october-2016 [ https://perma.cc/J82G-6UU8] (urging 
the Department to adopt a web accessibility regulation).
---------------------------------------------------------------------------

    Recent research documents the digital inaccessibility of the 
websites of more than 100 top hospitals across the United States, 
finding that only 4.9 percent are fully compliant with Web Content 
Accessibility Guidelines (WCAG) 2.1.\152\ While WCAG 2.1 has been 
available to the general public, including web professionals, for over 
five years, and many of the success criteria it incorporates were 
available a decade prior in WCAG 2.0, it is likely that some recipients 
have not fully conformed with WCAG 2.1 AA in the absence of rulemaking 
requiring conformance. In general, as technology continues to advance, 
the methods for ensuring programs and activities are as effective for 
people with disabilities as those provided to others may need to 
change, as well.\153\
---------------------------------------------------------------------------

    \152\ Amanda Krupa et al., American Health Information 
Management Association (AHIMA) Foundation, The Critical Role of Web 
Accessibility in Health Information Access, Understanding, and Use 
(2022), https://mathematica.org/publications/the-critical-role-of-web-accessibility-in-health-information-access-understanding-and-use.
    \153\ See, e.g., Enyart v. Nat'l Conference, 630 F. 3d 1153, 
1163 (9th Cir. 2011) (an ADA title II case, in which the defendant 
refused to permit the plaintiff to take the Bar exam using a 
computer equipped with the assistive technology software JAWS and 
ZoomText. The court held that the software must be permitted, 
stating that ``assistive technology is not frozen in time: as 
technology advances, testing accommodations should as well.''); See 
also California Council of the Blind v. Cnty of Alameda, 985 F. 
Supp. 2d 1229, 1241 (N.D. Cal. 2013) (the plaintiffs alleged a 
violation of section 504 and the ADA because of defendant's failure 
to provide electronic voting machines with electronic ballots 
including an audio ballot feature that can read aloud instructions 
and voting options. In denying the defendant's motion to dismiss, 
the court noted that ``while the Social Security Administration's 
practice of reading notices to blind individual was once sufficient, 
reading letters over the phone no longer constituted meaningful 
access because `great strides have been made in computer-aided 
assistance for the blind . . .' ''); Argenyi v. Creighton Univ., 703 
F. 3d 441 (8th Cir. 2013) (the court held that the University's 
failure to provide a system which transcribes spoken words into text 
on a computer screen violated section 504 and the ADA.).
---------------------------------------------------------------------------

    Despite the availability of voluntary web and mobile app 
accessibility standards; the Department's position that programs and 
activities of recipients, including those available on websites, must 
be accessible; and case law supporting that position, individuals with 
disabilities continue to struggle to obtain access to the websites of 
recipients.\154\ In addition to the Department's guidance and 
enforcement, DOJ has brought enforcement actions to address web access, 
resulting in a significant number of settlement agreements with state 
and local government entities as well as public entities.\155\
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    \154\ See, e.g., Meyer v. Walthall, 528 F. Supp. 3d 928, 959 
(S.D. Ind. 2021) (``[T]he Court finds that Defendants' websites 
constitute services or activities within the purview of Title II and 
section 504, requiring Defendants to provide effective access to 
qualified individuals with a disability.''); Price v. City of Ocala, 
Fla., 375 F. Supp. 3d 1264, 1271 (M.D. Fla. 2019) (``Title II 
undoubtedly applies to websites . . . .''); Payan v. Los Angeles 
Cmty. Coll. Dist., No. 2:17-CV-01697-SVW-SK, 2019 WL 9047062, at *12 
(C.D. Cal. Apr. 23, 2019) (``[T]he ability to sign up for classes on 
the website and to view important enrollment information is itself a 
`service' warranting protection under Title II and section 504.''); 
Eason v. New York State Bd. of Elections, No. 16-CV-4292 (KBF), 2017 
WL 6514837 (S.D.N.Y. Dec. 20, 2017) (stating, in a case involving a 
State's website, that ``section 504 of the Rehabilitation Act and 
Title II of the Americans with Disabilities Act . . . ,long ago 
provided that the disabled are entitled to meaningful access to a 
recipient's programs and services. Just as buildings have 
architecture that can prevent meaningful access, so too can 
software.''); Hindel v. Husted, No. 2:15-CV-3061, 2017 WL 432839, at 
*5 (S.D. Ohio Feb. 1, 2017) (``The Court finds that Plaintiffs have 
sufficiently established that Secretary Husted's website violates 
Title II of the ADA because it is not formatted in a way that is 
accessible to all individuals, especially blind individuals like the 
Individual Plaintiffs whose screen access software cannot be used on 
the website.'').
    \155\ See, e.g., Settlement Agreement Between the United States 
of America and the Champaign-Urbana Mass Transit District (Dec. 14, 
2021), https://www.ada.gov/champaign-urbana_sa.pdf [https://perma.cc/VZU2-E6FZ]; Consent Decree, United States v. The Regents of 
the Univ. of Cal. (Nov. 20, 2022), https://www.justice.gov/opa/press-release/file/1553291/download [https://perma.cc/9AMQ-GPP3]; 
Consent Decree, Dudley v. Miami Univ. (Oct. 13, 2016), https://www.ada.gov/miami_university_cd.html [https://perma.cc/T3FX-G7RZ]; 
Settlement Agreement Between the United States of America and the 
City and County of Denver, Colorado Under the Americans with 
Disabilities Act (Jan. 8, 2018), https://www.ada.gov/denver_pca/denver_sa.html [https://perma.cc/U7VE-MBSG]; Settlement Agreement 
Between the United States of America and Nueces County, Texas Under 
the Americans with Disabilities Act (effective Jan. 30, 2015), 
https://www.ada.gov/nueces_co_tx_pca/nueces_co_tx_sa.html [https://perma.cc/TX66-WQY7]; Settlement Agreement Between the United States 
of America, Louisiana Tech University, and the Board of Supervisors 
for the University of Louisiana System Under the Americans with 
Disabilities Act (July 22, 2013), https://www.ada.gov/louisiana-tech.htm [https://perma.cc/78ES-4FQR].
---------------------------------------------------------------------------

    The Department believes that adopting technical standards for web 
content and mobile app accessibility provides clarity to recipients 
regarding how to make the programs and activities they offer the public 
via the web and mobile apps accessible. Adopting specific technical 
standards for web content and mobile app accessibility also provides 
individuals with disabilities with consistent and predictable access to 
the websites and mobile apps of recipients.
    Comment: Many commenters expressed their beliefs that the proposed 
time periods for compliance, two years for larger recipients and three 
years for smaller recipients, were too far in the future and should be 
shortened. These commenters expressed concern that the time recipients 
would spend making their web and mobile content accessible would be 
time that people with disabilities will not have access to their 
programs and activities, including necessary health care. 
Alternatively, some commenters stated they believed that the time 
periods for compliance should be extended to allow recipients, some of 
whom are small and have limited resources, additional time to come into 
compliance and ensure their web content and mobile apps comply with 
WCAG 2.1. These commenters stated that some small health care providers 
may decide to not accept funding from the Department, or go out of 
business altogether, if they are

[[Page 40133]]

required to come into compliance within three years. Some commenters 
believe that the proposed time period for compliance is adequate and 
strikes the appropriate balance between providing recipients adequate 
time and ensuring people with disabilities do not have to wait too long 
for services.
    Some commenters expressed confusion as to whether the proposed rule 
as drafted only meant that recipients had a one-time obligation to 
update their web content and mobile apps for WCAG 2.1 AA conformance at 
two years or three years, depending on their size.
    Response: Much like determining the appropriate compliance 
standard, the Department recognizes that commenters have a spectrum of 
opinions on whether the proposed dates for compliance are too soon or 
too far in the future. The Department worked closely with its Federal 
partners to determine appropriate compliance timeframes. After 
carefully weighing the arguments that the compliance dates should be 
kept the same, shortened, or lengthened, the Department has decided 
that the compliance dates in the final rule--two years for large 
recipients and three years for small recipients--strike the appropriate 
balance between the various interests at stake.
    Shortening the compliance dates would likely result in increased 
costs and practical difficulties for recipients, especially small 
recipients. Lengthening the compliance dates would prolong the 
exclusion of many people with disabilities from recipients' web content 
and mobile apps. Additionally, any change in compliance dates runs the 
risk of introducing inconsistency with other rulemakings \156\ where 
recipients that are also covered by those rulemakings would be subject 
to different compliance dates. The Department believes that the balance 
struck in the compliance timeframe proposed in the NPRM was 
appropriate, and that there are no overriding reasons to shorten or 
lengthen these dates given the important and competing considerations 
involved by stakeholders.
---------------------------------------------------------------------------

    \156\ See, e.g., 88 FR 51948 (Aug. 4, 2023).
---------------------------------------------------------------------------

    Regarding whether the proposed rule only required recipients to 
make their web content and mobile apps accessible once, the Department 
wishes to clarify that under this rule, recipients have an ongoing 
obligation to ensure that their web content and mobile apps comply with 
this rule's requirements, which would include content that is newly 
added or created after the compliance date. The compliance date is the 
first time that recipients need to be in compliance with the rule's 
requirements; it is not the last. Accordingly, after the compliance 
date, recipients will continue to need to ensure that all web content 
and mobile apps they provide or make available comply with the 
technical standard, except to the extent another provision of this rule 
permits otherwise. To make this point more clearly, the Department 
revised the language of Sec.  84.84(b)(1) and (2), respectively, to 
state that a recipient needs to comply with this rule ``[b]eginning May 
11, 2026'' and ``[b]eginning May 10, 2027,'' depending on the size of 
the recipient.
    Comment: The Department received conflicting comments concerning 
the costs and challenges that small recipients will face in order to 
comply with the proposed rule. Some commenters believe that recipients 
with fewer than fifteen employees have budgets that will be 
significantly constrained by requirements to make the web content and 
mobile apps they use compliant with WCAG 2.1 in any amount of time. 
Some commenters also believe that because of their size, small 
recipients are less sophisticated and less aware of their obligations 
under Federal civil rights laws, and therefore should not be held to 
standards imposed on larger recipients. Alternatively, other commenters 
state that small recipients do not face insurmountable costs because 
advances in technology and the services offered to make web content 
accessible have made compliance much more attainable for even the 
smallest recipient.
    Response: The Department believes that the final rule strikes the 
appropriate balance by requiring small recipients to comply with the 
same technical standard as larger recipients while giving small 
recipients additional time to do so. The Department believes this 
longer compliance time frame is prudent in recognition of the 
additional challenges that small recipients may face in complying, such 
as limited budgets, lack of technical expertise, and lack of personnel. 
The Department believes that providing an extra year for small 
recipients to conform to this section will give those recipients 
sufficient time to properly allocate their personnel and financial 
resources to make their web content and mobile apps comply with WCAG 
2.1 Level AA, without providing so much additional time that people 
with disabilities have a reduced level of access to their resources for 
an extended period.
    The Department appreciates the concerns of commenters and urges 
recipients to review the Regulatory Impact Analysis for the 
Department's full discussion of the costs and benefits of the proposed 
rulemaking. Small recipients in particular are much less likely to 
create their own web content and mobile apps and are more likely to 
contract with outside parties. Small recipients are also more likely to 
have smaller amounts of web content and mobile apps that would have to 
be compliant. Recipients will have the choice to remediate existing web 
content and mobile apps, or to create new accessible web content and 
mobile apps and may also decide whether to make changes themselves or 
contract with a third-party to make changes. Regarding sophistication 
and understanding of accessibility requirements, the Department is 
committed to issuing guidance and technical assistance for recipients 
on how to comply with accessibility requirements, in addition to 
existing guidance on WCAG 2.1. Finally, a recipient may be able to show 
that full compliance with subpart I would result in a fundamental 
alteration or undue burdens as described in Sec.  84.88.
    Comment: Many commenters believe that all recipients, regardless of 
size, should be held to the same accessibility standard. Specifically, 
they believe that any deviation in accessibility standards between 
small and large recipients would lead to unacceptable differences in 
levels of care to the detriment of patients with disabilities, 
especially those in rural areas. Those commenters also stated that 
small recipients should either have to come into compliance within the 
proposed three years or at an earlier date. Some commenters supported 
more lenient standards for small recipients because they believed 
achieving full accessibility under WCAG 2.1 would be too difficult for 
the smallest recipients. One commenter stated that the accessibility 
standard should be the same regardless of recipient size, but small 
providers should have more than three years to come into compliance. 
One commenter recommended a principles-based approach where small 
recipients would be required to take steps to make their web content 
and mobile apps accessible, but there would be no standard or method 
for testing their accessibility. One commenter believed there should be 
a permanent exemption for small recipients and that they should not be 
held to any standards for web content and mobile app accessibility. 
Finally, some commenters requested additional guidance for small 
recipients so that they could comply with the Department's proposed 
standards.

[[Page 40134]]

    Response: The Department appreciates the range of responses on 
standards for small recipients. The Department agrees that requiring 
more lenient standards for small recipients would lead to differences 
in the accessibility and effectiveness of health and human service 
programs and activities. Given the importance of small recipients in 
the delivery of health care, such gaps are incompatible with the 
Department's statutory mandate; a wholesale exception would therefore 
be inappropriate. Such an exception would mean that an individual with 
a disability who lives in a small, rural area, might not have the same 
level of access to a recipient's web-based programs and activities as 
an individual with a disability in a larger, urban area. This would 
significantly undermine consistency and predictability in web 
accessibility. It would also be particularly problematic given the 
interconnected nature of many different websites. Furthermore, an 
exception for small recipients would reduce the benefits of the rule 
for those entities.
    Requiring small recipients to comply with the same technical 
standards as all other recipients ensures consistent levels of 
accessibility for recipients of all sizes in the long term, which will 
promote predictability and reduce confusion about which standard 
applies. It will allow for individuals with disabilities to know what 
they can expect when navigating a recipient's web content; for example, 
it will be helpful for individuals with disabilities to know that they 
can expect to be able to navigate any recipient's web content 
independently using their assistive technology. It also ensures that 
individuals with disabilities who reside in rural areas that are mainly 
serviced by smaller recipients have comparable access to their 
counterparts in urban areas that are serviced by a range of smaller and 
larger recipients, which is critical given the transportation and other 
barriers that people in rural areas may face.\157\
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    \157\ See, e.g., NORC Walsh Ctr. for Rural Health Analysis & 
Rural Health Info. Hub, Access to Care for Rural People with 
Disabilities Toolkit, (Dec. 2016), https://www.ruralhealthinfo.org/toolkits/disabilities.pdf [https://perma.cc/YX4E-QWEE] (noting 
geographic, transportation, and service barriers to care in rural 
areas); U.S. Dep't of Health & Hum. Servs., Health Rsch. & Servs. 
Admin., Strengthening the Rural Health Workforce to Improve Health 
Outcomes in Rural Communities, 13-14 (Apr. 2022), https://www.hrsa.gov/sites/default/files/hrsa/advisory-committees/graduate-medical-edu/reports/cogme-april-2022-report.pdf (stating that the 
healthcare workforce in rural communities is overall short staffed 
with fewer hospitals and critical care physicians than urban areas); 
About Rural Healthcare, NHRA, https://www.ruralhealth.us/about-nrha/about-rural-health-care (last visited Mar. 19, 2024) (stating that 
family physicians comprise only 15% of U.S. outpatient physician 
workforce but provide 42% of care in rural areas).
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    The Department notes that under appropriate circumstances, small 
recipients may also rely on the exceptions, flexibilities, and other 
mechanisms described in Sec. Sec.  84.85, 84.86, 84.87, 84.88, and 
84.89 below, which the Department believes should help make compliance 
feasible for those recipients. Recipients are not required to take 
action that would constitute a fundamental alteration in the nature of 
a program or activity, or impose an undue financial or administrative 
burden.
    Finally, the Department remains committed to making guidance 
documents and technical assistance available to the general public so 
that recipients are aware of their obligations and how to comply with 
them.
New Social Media Exception
    Comment: Many of the comments on recipient use of social media and 
how it should be addressed in this rulemaking stated that recipients 
use social media for a wide variety of purposes, including purposes 
central to the programs and activities they provide. Recipients may 
post important announcements, scheduling information, informational 
videos, or other general information that is of high importance to the 
public. Many comments proposed specific technical requirements to 
ensure that social media posts from recipients are accessible, 
including plain language, alternative text for images, and audio 
descriptions and captions for videos. Some commenters stated that 
social media posts made before the implementation date for this 
rulemaking should not be required to be accessible unless they contain 
important information related to recipient programs or activities or 
the content of the posts is changed. Some commenters stated that older 
social media posts should be made accessible upon request or if a 
recipient posts significant important content on a certain social media 
platform, like YouTube. Some commenters stated that no preexisting 
social media posts should be required to be accessible due to the 
burden on recipients and the forward-looking nature of the proposed 
rule. Many commenters expressed concern that social media posts from 
recipients should not be deemed to violate this proposed rule if the 
social media platform itself is responsible for the violation.
    Response: The Department is including an exception for preexisting 
social media posts in the final rule because making preexisting social 
media posts accessible may be impossible or result in a significant 
burden. The benefits of making all preexisting social media posts 
accessible will likely be limited as these posts are generally intended 
to provide then-current updates on platforms that are frequently 
refreshed with new information. The Department believes recipients' 
limited resources are better spent ensuring that current web content 
and content in mobile apps are accessible, rather than reviewing all 
preexisting social media posts for compliance or possibly deleting 
recipients' previous posts if remediation is impossible. As other 
commenters recommended, the Department believes this final rule should 
be more forward looking when determining which social media posts 
should be accessible.
    The Department emphasizes that even if preexisting social media 
posts do not have to conform to the technical standard, recipients 
still need to ensure that their programs and activities offered using 
web content and mobile apps are accessible to people with disabilities 
on a case-by-case basis in accordance with their other obligations 
under section 504.
    Based on these comments, the Department will include a new 
exception at Sec.  84.85(e) that will state the requirements of Sec.  
84.84 do not apply to a recipient's social media posts that were posted 
before the date the recipient is required to comply with this rule.
    The Department's final rule requires that web content and mobile 
apps that recipients provide or make available, directly or through 
contractual, licensing, or other arrangements, be made accessible 
within the meaning of Sec.  84.84. This requirement applies regardless 
of whether that content is located on the recipient's own website or 
mobile app or elsewhere on the web or mobile apps. It therefore covers 
web content or content in a mobile app that a recipient makes available 
via a social media platform.
    Many social media platforms that are widely used by members of the 
public are available to members of the public separate and apart from 
any arrangements with recipients to provide a program or activity. As a 
result, this rule does not require recipients to ensure that such 
platforms themselves conform to WCAG 2.1 Level AA. However, because the 
posts that recipients disseminate through those platforms are provided 
or made

[[Page 40135]]

available by the recipients, they must conform to WCAG 2.1 Level AA. 
The Department understands that social media platforms often make 
available certain accessibility features like the ability to add 
captions or alt text. It is the recipient's responsibility to use these 
features when it makes web content available on social media platforms. 
For example, if a recipient posts an image to a social media platform 
that allows users to post alt text, the recipient needs to ensure that 
appropriate alt text accompanies that image so that screen reader users 
can access the information.
    Comment: Many of the comments on recipients' use of mobile 
applications and how it should be addressed in this rulemaking stated 
that recipients use mobile apps for a wide range of services that are 
central to their programs and activities. For example, some recipients 
use mobile apps as the main method for making appointments, paying 
bills, and even communicating with the recipient. None of the 
commenters argued against addressing mobile applications in this 
rulemaking. Some commenters stated that WCAG 2.1 applies to mobile apps 
in addition to web content and the Department is correct in proposing 
to use the same standard for both. Some commenters recommended a 
different standard for mobile apps, like section 508 of the 
Rehabilitation Act, WCAG 2.2, or WCAG 2.0.
    Response: The Department agrees that the same technical standard 
for accessibility should apply to both web content and mobile apps. The 
Department believes that applying the same technical standard to both 
web content and mobile apps will reduce confusion by ensuring 
consistent requirements and user experiences across web and mobile 
platforms.
    One of the reasons the Department proposed WCAG 2.1 AA as the 
standard for web content and mobile apps is that the WCAG standards 
were designed to be ``technology neutral.'' \158\ This means that they 
are designed to be broadly applicable to current and future web 
technologies,\159\ which will help ensure accessibility for mobile 
apps. Although the Section 508 Standards include some additional 
requirements like interoperability that are not required by WCAG,\160\ 
WCAG 2.1 Level AA includes specific success criteria related to mobile 
app accessibility. These success criteria address challenges such as 
touch target size, orientation, and motion actuation, among 
others.\161\ Therefore, the Department believes that WCAG 2.1 Level AA 
is a robust framework for mobile app accessibility.
---------------------------------------------------------------------------

    \158\ W3C, Introduction to Understanding WCAG (June 20, 2023), 
https://www.w3.org/WAI/WCAG21/Understanding/intro [https://perma.cc/XB3Y-QKVU].
    \159\ See W3C, Understanding Techniques for WCAG Success 
Criteria (June 20, 2023), https://www.w3.org/WAI/WCAG21/Understanding/understanding-techniques [https://perma.cc/AMT4-XAAL].
    \160\ See 36 CFR 1194.1; 36 CFR part 1194, appendix C, ch. 5.
    \161\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1 (June 
5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and 
https://perma.cc/UB8A-GG2F (success criteria 2.5.5, 1.3.4, & 2.5.4).
---------------------------------------------------------------------------

    Comment: Most of the comments on how the proposed compliance dates 
will affect individuals with disabilities noted that the longer that 
individuals with disabilities are forced to wait for accessible web 
content and mobile apps, the worse health outcomes they will face. Some 
commenters noted that retrofitting existing web content is always more 
difficult than creating accessible content, so recipients should begin 
making new web content accessible as soon as possible.
    Response: The Department agrees that creating accessible content 
from the start, rather than trying to remediate after the fact, is 
generally an easier undertaking for recipients and results in lower 
costs and burdens over time. While recipients must begin complying with 
the rule on the applicable compliance date, the Department expects that 
recipients will need to prepare for compliance during the two or three 
years before the compliance date. In addition, recipients still have an 
obligation to meet all of section 504's existing requirements--both 
before and after the date they must initially come into compliance with 
this rule.
    Comment: There were limited comments concerning how to define small 
recipients under the proposed rulemaking. Some commenters agreed that 
fifteen was the appropriate employee cut off for small recipients. Some 
commenters stated that there should be no distinction between small and 
large recipients because patients require the same level of care 
regardless of the size of a provider. Some commenters requested that 
instead of using the section 504 definition of small recipient that 
includes recipients with fewer than fifteen employees, the Department 
use the definition from the 2015 Medicare Access and CHIP 
Reauthorization Act which includes practices with fifteen or fewer 
professionals, effectively making more recipients small recipients, as 
the commenters characterized the requested change.
    Response: Since its publication over four decades ago, the 
Department's implementing regulation for section 504 of the 
Rehabilitation Act has recognized that there are practical differences 
between recipients with fewer than fifteen employees and recipients 
with fifteen or more employees. As a result, the Department limited the 
obligations of recipients with fewer than fifteen employees in certain 
areas. Maintaining this definition will significantly reduce the 
administrative complexity of enforcing this regulation and will improve 
predictability for recipients. The Department will not alter the 
definition of small recipient under a civil rights regulation to more 
closely align with a public law focused on physician payments.
    Comment: Commenters agreed with the Department's proposed method 
for compliance for recipients that are also public entities covered by 
title II of the ADA.
    Response: The Department agrees that its proposed method is 
appropriate. In instances where a recipient is also a public entity 
covered by title II of the ADA, the recipient will be required to 
comply with both this rulemaking and all title II regulations, 
including DOJ's rule establishing specific requirements, including the 
adoption of specific technical standards, for making accessible the 
services, programs, or activities offered by State and local government 
entities to the public through the web and mobile apps, and the 
associated compliance dates specified in that rulemaking.
    Comment: Most commenters agreed that there should not be a separate 
standard or greater time period for captioning live audio. Many 
commenters agree that two or three years is adequate time to ensure 
captioning for live audio, especially given the current advances in 
automated captioning technology. One commenter asked whether captioning 
requirements would require captions in multiple different languages 
beyond English.
    Response: As proposed in the NPRM, the final rule applies the same 
compliance date to all of the WCAG 2.1 Level AA success criteria, 
including live-audio captioning requirements. As stated in Sec.  
84.84(b), this provides three years after publication of the final rule 
for small recipients to comply, and two years for large recipients. The 
final rule takes this approach for several reasons. First, the 
Department understands that live-audio captioning technology has 
developed in recent years and continues to develop. Additionally, the 
COVID-19 pandemic moved a significant number of formerly in-person 
meetings,

[[Page 40136]]

activities, and other gatherings to online settings, many of which 
incorporated live-audio captioning. As a result of these developments, 
live-audio captioning has become even more critical for individuals 
with certain types of disabilities. Further, the Department believes 
that requiring conformance with all success criteria by the same date 
(according to recipient size) will address the need for both clarity 
for recipients and predictability for individuals with disabilities.
    This rulemaking is separate from other civil rights laws and 
regulations that prohibit discrimination based on race, color, or 
national origin and require meaningful access for individuals with 
limited English proficiency. Additional information on section 1557, 
which requires that certain health programs and activities take 
reasonable steps to provide meaningful access to individuals with 
limited English proficiency, can be found on the OCR website.
    Comment: Some commenters noted that recipients post a variety of 
live audio content, including news blasts.
    Response: The Department appreciates the responses.
Summary of Regulatory Changes
    While the Department believes that the comments concerning Sec.  
84.84 were overall positive and recognized the intent of the proposed 
rule, there is also concern that more clarity can be provided to define 
the scope of coverage. Accordingly, the Department will modify the text 
of Sec.  84.84(a)(1) and (2) and (b)(1) and (2) to clarify that this 
rulemaking applies to web content and mobile apps that a recipient 
provides, either ``directly or through contractual, licensing, or other 
arrangements.'' This approach is consistent with the NPRM, which 
clarified that throughout this rule, a recipient's `website' is 
intended to include not only the websites hosted by the recipient, but 
also websites operated on behalf of a recipient by a third party. The 
Department also received comments in other sections emphasizing the 
importance of such a distinction and believes it is a fundamental part 
of this rule that should be emphasized.
    The Department will also modify the regulatory text of Sec.  84.84 
to remove the words ``members of the public,'' which is more similar to 
the language in the application section of title II of the ADA but is 
not intended to change or limit the coverage of the final section 504 
rule.
    The Department will also edit the language at Sec.  84.84(b)(1) and 
(2) to clarify that recipients have an ongoing obligation, not a one-
time obligation, to make their web content and mobile apps accessible 
beginning two or three years after the publication of this final rule.
Exceptions (Sec.  84.85)
    Proposed Sec.  84.85 contained a number of exceptions to the 
requirements of Sec.  84.84 including archived web content (Sec.  
84.85(a)), preexisting conventional electronic documents (Sec.  
84.85(b)), web content posted by a third party (Sec.  84.85(c)), linked 
third-party web content (Sec.  84.85(d)), password-protected course 
content for elementary, secondary, and postsecondary institutions 
(Sec.  84.85(e), (f)), and individualized password-protected documents 
(Sec.  84.85(g)).
    The Department emphasizes that, even if certain content does not 
have to conform to the technical standard of this rulemaking, 
recipients still need to ensure that their programs and activities 
offered using web content and mobile apps are accessible to people with 
disabilities on a case-by-case basis in accordance with other 
obligations under this rulemaking. These obligations include making 
reasonable modifications to avoid discrimination on the basis of 
disability, ensuring that communications with people with disabilities 
are as effective as communications with people without disabilities, 
and providing people with disabilities an equal opportunity to 
participate in or benefit from the recipient's programs or 
activities.\162\
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    \162\ See 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77.
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    The Department sought comment on the following questions pertaining 
to archived web content (Sec.  85.85(a)):
     Web Accessibility Question 17: How do recipients manage 
content that is maintained for reference, research, or recordkeeping?
     Web Accessibility Question 18: What would the impact of 
this exception be on people with disabilities?
     Web Accessibility Question 19: Are there alternatives to 
this exception that the Department should consider, or additional 
limitations that should be placed on this exception? How would 
foreseeable advances in technology affect the need for this exception?
    The comments and our responses on Sec.  84.85(a) are set forth 
below.
    Comment: One commenter stated that its content is stored in 
accordance with State administrative rules and made available to the 
public based on open records laws. Several commenters sought clarity on 
the definition of ``archived web content.'' Some commenters provided 
their understanding of what constitutes archived web content, and 
offered suggestions for updating the Department's proposed definition. 
One comment stated that archiving content includes taking stock of all 
the material on a website, then the website may be overhauled in such a 
way that archived relationships or content types are no longer visible. 
Some commenters requested an edit to the proposed definition of 
``archived content'' to remove the term ``exclusively'' as it limits 
archived web content to content maintained for reference, research or 
recordkeeping and the commenters did not want to limit the exception to 
specific types of content.
    Response: The Department appreciates the comments about the 
archived web content definition and exception. Specifically, some 
commenters offered recommendations to broaden the definition of 
archived web content, which would increase the total web content 
covered by the proposed exception, while other comments recommended 
limiting the definition of archived web content, which would decrease 
the total web content covered by the proposed exception. In the 
proposed rule, ``archived web content'' was defined as ``web content 
that (1) is retained exclusively for reference, research, or 
recordkeeping; (2) is not altered or updated after the date of 
archiving; and (3) is organized and stored in a dedicated area or areas 
clearly identified as being archived.'' \163\
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    \163\ 88 FR 63392, 63509 (Sept. 14, 2023).
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    The Department made several revisions to the definition of archived 
web content from the NPRM. To clarify the scope of content covered by 
the definition and associated exception, the Department added a new 
first part to the definition. That new part specifies that archived web 
content is limited to three types of historic content: web content that 
was created before the date the recipient is required to comply with 
subpart I; web content that reproduces paper documents created before 
the date the recipient is required to comply with subpart I; and web 
content that reproduces the contents of other physical media created 
before the date the recipient is required to comply with subpart I.
    Web content that was created before the date a recipient is 
required to comply with subpart I satisfies the first part of the 
definition. In determining the date web content was created, the 
Department does not intend to prohibit recipients from making minor 
adjustments to web content that was initially created before the 
relevant

[[Page 40137]]

compliance dates specified in Sec.  84.84(b), such as by redacting 
personally identifying information from web content as necessary before 
it is posted to an archive, even if the adjustments are made after the 
compliance date. In contrast, if a recipient makes substantial changes 
to web content after the date the recipient is required to comply with 
the rule, such as by adding, updating, or rearranging content before it 
is posted to an archive, the content would likely no longer meet the 
first part of the definition. If the recipient later alters or updates 
the content after it is posted in an archive, the content would not 
meet the third part of the definition of archived web content and it 
would generally need to conform to WCAG 2.1 Level AA.
    Web content that reproduces paper documents or that reproduces the 
contents of other physical media would also satisfy the first part of 
the definition if the paper documents or the contents of the other 
physical media were created before the date the recipient is required 
to comply with this rule. Paper documents include various records that 
may have been printed, typed, handwritten, drawn, painted, or otherwise 
marked on paper. Videotapes, audiotapes, film negatives, CD-ROMs, and 
DVDs are examples of physical media. The Department anticipates that 
recipients may identify or discover historic paper documents or 
historic content contained on physical media that they wish to post in 
an online archive following the time they are required to comply with 
this rule. For example, a research hospital might move to a new 
building after the date it is required to comply with this rule and 
discover a box in storage that contains hundreds of paper files and 
photo negatives from 1975 related to a research study the hospital 
conducted at that time. If the hospital reproduced the documents and 
photos from the film negatives as web content, such as by scanning the 
documents and film negatives and saving the scans as PDF documents that 
are made available online, the resulting PDF documents would meet the 
first part of the definition of archived web content because the 
underlying paper documents and photos were created in 1975. The 
Department reiterates that it does not intend to prohibit recipients 
from making minor adjustments to web content before posting it to an 
archive, such as by redacting personally identifying information from 
paper documents. Therefore, the hospital could likely redact personally 
identifying information about participants in the research study from 
the scanned PDFs as necessary before posting them to its online 
archive. But, if the hospital were to make substantial edits to PDFs, 
such as by adding, updating, or rearranging content before posting the 
PDFs to its archive, the PDFs would likely not meet the first part of 
the definition of archived web content because, depending on the 
circumstances, they may no longer be a reproduction of the historic 
content. In addition, if the hospital later altered or updated the PDFs 
after they were posted in an archive, the content would not meet the 
third part of the definition of archived web content and it would 
generally need to conform to WCAG 2.1 Level AA.
    The Department believes the first part of the definition sets an 
appropriate time-based limitation on the scope of content covered by 
the definition and exception that is consistent with the Department's 
stated intent in the NPRM. In the NPRM, the Department explained that 
the definition of archived web content and the associated exception 
were intended to cover historic content that is outdated or 
superfluous.\164\ The definition in the final rule, which is based on 
whether the relevant content was created before the date a recipient is 
required to comply with subpart I, is now more aligned with, and better 
situated to implement, the Department's intent to cover historic 
content. The Department believes it is appropriate to include a time-
based limitation in the definition, rather than add new criteria 
stating that content must be historic, outdated, or superfluous, 
because it is more straight forward to differentiate content based on 
the date the content was created. Therefore, there will be greater 
predictability for individuals with disabilities and recipients as to 
which content is covered by the exception.
---------------------------------------------------------------------------

    \164\ 88 FR 63392, 63464 (Sept. 14, 2023).
---------------------------------------------------------------------------

    The Department declines to establish time-based limitations for 
when content may be posted to an archive or to otherwise set an 
expiration date for the exception. As discussed below, the Department 
recognizes that many recipients will need to carefully consider the 
design and structure of their web content before dedicating a certain 
area or areas for archived content, and that, thereafter, it will take 
time for recipients to identify all content that meets the definition 
of archived web content and post it in the newly created archived area 
or areas. The archived web content exception thus provides recipients 
flexibility as to when they will archive web content so long as the web 
content was created before the date the recipient was required to 
comply with subpart I or the web content reproduces such paper 
documents or the contents of other physical media created before the 
date the recipient was required to comply with subpart I. In addition, 
the Department does not believe it is necessary to establish a waiting 
period before newly created web content can be posted in an archive. 
New content created after the date a recipient is required to comply 
with this rule will generally not meet the first part of the definition 
of ``archived web content.'' In the limited circumstances in which 
newly created web content could meet the first part of the definition 
because it reproduces paper documents or the contents of other physical 
media created before the date the recipient is required to comply with 
this rule, the Department believes the scope of content covered by the 
exception is sufficiently limited by the second part of the definition: 
whether the content is retained exclusively for reference, research, or 
recordkeeping.
    After considering all the comments, the Department declines to 
change what is now the second part of the definition of archived web 
content. Given the wide variety of web content that recipients provide 
or make available, the Department does not believe it is advisable to 
try to use additional, more specific language in the definition about 
what types of content are covered. Whether web content is retained 
exclusively for reference, research, or recordkeeping will depend on 
the facts of the particular situation. The Department notes that if a 
recipient posts web content that identifies the current policies or 
procedures of the recipient, or posts web content containing or 
interpreting applicable laws or regulations related to the recipient, 
that web content is unlikely to be covered by the exception. This is 
because the content is notifying members of the public about their 
ongoing rights and responsibilities. It therefore is not, as the 
definition requires, being used exclusively for reference, research, or 
recordkeeping.
    Also, the Department's revised definition of archived web content, 
and specifically the new first part of the definition, make clear that 
the definition only pertains to certain content created before the date 
the recipient is required to comply with this rule. Therefore, new 
content such as agendas, meeting minutes, and other documents related 
to meetings that take place after the recipient is required to comply 
with this

[[Page 40138]]

rule would likely not meet all parts of the definition of archived web 
content.
    In addition to adding a new first part to the definition of 
archived web content, the Department made one further change to the 
definition from the NPRM. In the NPRM, what is now the second part of 
the definition pertained to web content that is ``maintained'' 
exclusively for reference, research, or recordkeeping. In the final 
rule, the word ``maintained'' is replaced with ``retained.'' The 
revised language is not intended to change or limit the coverage of the 
definition. Rather, the Department recognizes that the word 
``maintain'' can have multiple meanings relevant to this rule. In some 
circumstances, ``maintain'' may mean ``to continue in possession'' of 
property, whereas in other circumstances it might mean ``to engage in 
general repair and upkeep'' of property.\165\
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    \165\ Maintain, Black's Law Dictionary (11th ed. 2019).
---------------------------------------------------------------------------

    Additionally, the Department will retain the word ``exclusively'' 
in the definition of archived web content. The Department is concerned 
that removing the word ``exclusively'' would result in less 
predictability for both recipients and individuals with disabilities 
about the scope of content covered by the definition. In addition, if 
the Department were to remove the word ``exclusively,'' the exception 
for archived web content might cover important older web content that 
is still used for reasons other than reference, research, or 
recordkeeping. The purpose of the exception for archived web content is 
to help recipients focus their resources on making accessible the most 
important materials that people use most widely and consistently, 
rather than historic or outdated web content that is only used for 
reference, research, or recordkeeping.
    Comment: Many commenters opposed the proposed archived web content 
exception because they believe it would result in people with 
disabilities being denied access in perpetuity to historical 
information. Several commenters noted that access to archived public 
documents is key to the public's right to know, petition, and engage in 
the American democratic process. These commenters said that these legal 
rights, such as access to public meeting information, should not be 
abridged on the basis of disability or any other exclusionary reason. 
Other commenters stated that if recipients do not respond to requests 
for accessible electronic documents in a timely manner, important 
information falls under this exception, and any essential documents 
should not be included in this exception. In addition, commenters said 
that individuals with disabilities may not know what content they are 
looking for to make such request for accessible versions. Several 
commenters stated there will be a negative impact on students, 
researchers, and other professionals with disabilities who frequently 
require access to archived content for their studies and livelihoods. 
One commenter supported the exception, saying that recipients should be 
encouraged to accommodate people with disabilities so they can access 
content when requested.
    Response: The Department understands the concerns raised by 
commenters about the burdens that people with disabilities may face 
because archived web content is not required to conform to WCAG 2.1 
Level AA. The Department emphasizes that even if certain content does 
not have to conform to the technical standard, recipients still need to 
ensure that their programs and activities offered using web content are 
accessible to people with disabilities on a case-by-case basis in 
accordance with their other obligations under section 504. These 
obligations include making reasonable modifications to avoid 
discrimination on the basis of disability, ensuring that communications 
with people with disabilities are as effective as communications with 
people without disabilities, and providing people with disabilities an 
equal opportunity to participate in or benefit from the recipient's 
programs or activities.\166\
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    \166\ See 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77.
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    The Department emphasizes that web content that is not archived, 
but instead notifies users about the existence of archived web content 
and provides users access to archived web content, generally must still 
conform to WCAG 2.1 Level AA. Therefore, the Department anticipates 
that members of the public will have information about what content is 
contained in an archive. For example, a recipient's archive may include 
a list of links to download archived documents. Under WCAG 2.1 Success 
Criterion 2.4.4, a recipient would generally have to provide sufficient 
information in the text of the link alone, or in the text of the link 
together with the link's programmatically determined link context, so 
users could understand the purpose of each link and determine whether 
they want to access a given document in the archive.\167\
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    \167\ See W3C, Web Content Accessibility Guidelines 2.1, Link 
Purpose (In Context) (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.
---------------------------------------------------------------------------

    The Department continues to believe that the exception 
appropriately encourages recipients to utilize their resources to make 
accessible the critical up-to-date materials that are most consistently 
used to access recipients' programs or activities. The Department 
believes the exception provides a measure of clarity and certainty for 
recipients about what is required of archived web content. Therefore, 
resources that might otherwise be spent making accessible large 
quantities of historic or otherwise outdated information available on 
some recipients' websites are freed up to focus on important current 
and future web content that is widely and frequently used by members of 
the public. However, the Department emphasizes that the exception is 
not without bounds. As discussed above, archived web content must meet 
all four parts of the archived web content definition in order to 
qualify for the exception. Content must meet the time-based criteria 
specified in the first part of the definition. The Department believes 
the addition of the first part of the definition will lead to greater 
predictability about the application of the exception for individuals 
with disabilities and recipients. In addition, web content that is used 
for something other than reference, research, or recordkeeping is not 
covered by the exception.
    Comment: Many commenters pointed out that recipients already have 
the option to claim fundamental alteration or undue burdens limitations 
for the subpart. If a recipient cannot argue that making archived 
documents accessible would result in a fundamental alteration or undue 
burden, then they should provide access to archived documents via a 
schedule that prioritizes conversion based on the needs of their 
constituents. Some commenters suggested that priority should be based 
on which records are accessed more often, or those that are more 
chronologically recent. Some commenters mentioned that the burden of 
proving fundamental alteration or undue burden is on the recipient and 
the Department should provide clear guidelines on how to satisfy such 
defenses. One commenter asked about the consequences for noncompliance 
and encouraged the Department to give recipients ample time and 
opportunity to correct issues.
    Several commenters pointed out that the status quo is that 
accessible documents are not provided in a timely

[[Page 40139]]

manner upon request, and requested that if the Department does end up 
allowing the exception for archived documents, then the Department 
should define ``timely manner'' to no longer than a few business days. 
Commenters said the Department should also require that recipients post 
processes and timelines for accessing inaccessible archived documents.
    Some commenters requested that any documents archived after the 
effective date of this rule be kept in an accessible format.
    One commenter said the Department should distinguish between 
archives that are themselves programs of a recipient (e.g., special 
digital collections and recordkeeping) versus any information that was 
originally web content and that may be archived solely for reference 
(e.g., old calendar events or time-oriented resources kept on an 
archives section of the website). This commenter stated that when an 
archive is itself a program, it should be required to be accessible.
    Response: The Department's aim in setting forth exceptions was to 
make sure that individuals with disabilities have ready access to 
recipients' web content and mobile apps, especially those that are 
current, commonly used, or otherwise widely needed, while also ensuring 
that practical compliance with this rule is feasible and sustainable 
for recipients. The exceptions help to ensure that compliance with this 
final rule is feasible by enabling recipients to focus their resources 
on making frequently used or high impact content WCAG 2.1 Level AA 
compliant first. The Department was mindful of the pragmatic concern 
that should the final rule require actions that are likely to result in 
fundamental alterations or undue burdens for large numbers of 
recipients or large swaths of their content, the rule could in practice 
lead to fewer improvements for accessibility across the board as 
recipients encountered these limitations. The Department believes that 
such a rule could result in recipients prioritizing accessibility of 
content that is ``easy'' to make accessible, rather than content that 
is essential, despite the spirit and letter of the rule. The Department 
believes that clarifying that recipients do not need to focus resources 
on certain content helps ensure that recipients can focus their 
resources on the large volume of content not covered by exceptions, as 
that content is likely more frequently used or up to date.
    As discussed above, the Department has decided to keep the archived 
web content exception in the final rule. After reviewing the range of 
different views expressed by commenters, the Department continues to 
believe that the exception appropriately encourages recipients to 
utilize their resources to make accessible the critical up-to-date 
materials that are most consistently used to access recipients' 
programs or activities. The Department believes the exception provides 
a measure of clarity and certainty for recipients about what is 
required of archived web content. Therefore, resources that might 
otherwise be spent making accessible large quantities of historic or 
otherwise outdated information available on some recipients' websites 
are freed up to focus on important current and future web content that 
is widely and frequently used by members of the public.
    The Department also declines to treat differently recipients whose 
primary function is to provide or make available what a commenter 
perceived as archived web content. The Department reiterates that 
whether archived web content is retained exclusively for reference, 
research, or recordkeeping depends on the particular facts and 
circumstances. The Department believes the exception and definition of 
archived web content together provide a workable framework for 
determining whether all types of recipients properly designate web 
content as archived.
    The Department declines to require recipients to adopt procedures 
and timelines for how individuals with disabilities could request 
access to inaccessible archived web content covered by the exception. 
The Department reiterates that, even if content is covered by this 
exception, recipients still need to ensure that their programs and 
activities offered using web content are accessible to people with 
disabilities on a case-by-case basis in accordance with their other 
obligations under section 504. These obligations include making 
reasonable modifications to avoid discrimination on the basis of 
disability, ensuring that communications with people with disabilities 
are as effective as communications with people without disabilities, 
and providing people with disabilities an equal opportunity to 
participate in or benefit from the recipient's programs or 
activities.\168\
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    \168\ See 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77.
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Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.85(a) as proposed with no 
modifications and editing the definition of ``archived web content'' in 
Sec.  84.10 by adding the following at paragraph (1): ``was created 
before the date the recipient is required to comply with Sec.  84.84, 
reproduces paper documents created before the date the recipient is 
required to comply with Sec.  84.84, or reproduces the contents of 
other physical media created before the date the recipient is required 
to comply with Sec.  84.84.'' The provision designated as paragraph (1) 
in the NPRM will be redesignated as paragraph (2) and the word 
``maintained'' will be replaced with ``is retained under.'' In 
addition, the provisions labelled paragraphs (2) and (3) in the NPRM 
will be redesignated as paragraphs (3) and (4), respectively.
    The Department sought comment on the following questions pertaining 
to preexisting conventional electronic documents (Sec.  84.85(b)):
     Web Accessibility Question 20: Where do recipients make 
conventional electronic documents available to the public? Do 
recipients post conventional electronic documents anywhere else on the 
web besides their own websites?
     Web Accessibility Question 21: Would this ``preexisting 
conventional electronic documents'' exception reach content that is not 
already excepted under the proposed archived web content exception? If 
so, what kinds of additional content would it reach?
     Web Accessibility Question 22: What would the impact of 
this exception be on people with disabilities? Are there alternatives 
to this exception that the Department should consider, or additional 
limitations that should be placed on this exception? How would 
foreseeable advances in technology affect the need for this exception?
    The comments and our responses on Sec.  84.85(b) are set forth 
below.
    Comment: Some commenters stated that preexisting conventional 
documents can easily be made accessible, such as by using .doc formats 
as opposed to .pdf or saving a .pdf in a more accessible manner. Some 
commenters wanted to broaden this exception to cover preexisting 
multimedia content and documents produced by government entities. Those 
commenters reasoned that documents provided by government entities may 
have statutory limitations that prevent changes and recipients would 
have no control over or ability to change the content of such 
documents. Another commenter appreciated the exception because they 
believe that without the exception recipients would be forced to delete 
a significant amount of helpful content from their websites. This 
commenter urged HHS to except content posted on platforms such as 
YouTube from coverage.

[[Page 40140]]

    Commenters listed types of conventional electronic documents made 
available to the public such as PDF, brochures, announcements, and 
slides shows on websites, cloud drives, file sharing sites, and cloud 
document platforms. Commenters said recipients use social media which 
allows the posting of links, which can include links to the recipient's 
own website. Conventional electronic documents can be attached to the 
social media post themselves in limited circumstances. One commenter 
recommended changing the wording of exception to include documents that 
have been posted to sites other than the recipient's website (such as 
cloud drives and social media).
    A State governor said the exception is too broad and proposed 
limiting the exception to archived documents that are no longer in 
regular and ongoing use to avoid excessive inaccessible legacy content.
    Response: The Department does not intend to broaden this proposed 
exception at this time, because the exception at Sec.  84.85(a) covers 
archived web content, the definition of which is not limited to 
documents.\169\ Web content that recipients provide or make available 
must conform to WCAG 2.1 Level AA unless covered by an exception. That 
includes videos that a recipient creates.
---------------------------------------------------------------------------

    \169\ See Sec.  84.10.
---------------------------------------------------------------------------

    The Department appreciates commenters' discussions of the types of 
conventional documents that recipients use and how to make them 
accessible. Preexisting conventional electronic documents are covered 
by this exception unless they are currently used to apply for, gain 
access to, or participate in a recipient's programs or activities.
    The Department continues to believe that the exception provides an 
important measure of clarity and certainty for recipients as they 
initially consider how to address all the various conventional 
electronic documents provided and made available through their web 
content and mobile apps. The exception will allow recipients to 
primarily focus their resources on developing new conventional 
electronic documents that are accessible as defined under this rule and 
remediating preexisting conventional electronic documents that are 
currently used to apply for, gain access to, or participate in their 
programs or activities. In contrast, recipients will not have to expend 
their resources on identifying, cataloguing, and remediating 
preexisting conventional electronic documents that are not currently 
used to apply for, gain access to, or participate in the recipients' 
programs or activities.
    The Department modified the language of this exception from the 
NPRM in ways that are relevant to the comment about the location of the 
conventional electronic documents, including social media sites and 
cloud drives. In the NPRM, the Department specified that the exception 
applied to conventional electronic documents ``created by or for a 
recipient'' that are available ``on a recipient's website or mobile 
app.'' The Department believes the language ``created by or for a 
recipient'' is no longer necessary in the regulatory text of the 
exception itself because the Department updated the language of Sec.  
84.84 to clarify the overall scope of content generally covered by the 
rule. In particular, and, as explained above, to make clear that 
recipients cannot delegate away their accessibility responsibilities, 
the text of Sec.  84.84(a)(1) and (2) now states that the rule applies 
to all web content and mobile apps that a recipient provides or makes 
available either ``directly, or through contractual, licensing, or 
other arrangements.'' Section 84.85(b), which is an exception to the 
requirements of Sec.  84.84, is therefore limited by the new language 
added to the general section.
    In addition, the Department removed the phrase ``members of the 
public'' from the language of the exception in the proposed rule for 
consistency with the edits to Sec.  84.84 of the section 504 regulation 
and title II of the ADA, as described above.
    Comment: Several commenters pointed out that there may be a need 
for documents that fall under this exception because, while they are 
not used to apply for, gain access to, or participate in a recipient's 
programs or activities, they are important for understanding the 
recipient's programs, activities, and services. One commenter noted 
that ``apply for, gain access to, or participate in a recipient's 
services, programs, or activities'' may not be consistently interpreted 
among recipients, and that documents with information about 
understanding the recipient's overall programs and activities, 
research-related documents, directives on health care payment, coding, 
or coverage can govern medical decisions long after they are published. 
Commenters noted that disputes related to health care claims can take 
years to solve, making existing documents relevant for such claims. 
Commenters noted that even if updated, new documents may not replace 
older versions in all circumstances, and partial revisions to existing 
documents make it necessary for both versions to be accessible for 
comparison.
    One commenter stated that the Department adequately addressed 
concerns about whether supporting information for conventional 
documents will be accessible with the statement ``a recipient must not 
only make a new patient form accessible, but it must also make 
accessible other materials that may be needed to complete the form, 
understand the process, or otherwise take part in the program.''
    Response: Whether a conventional electronic document is currently 
used to apply for, gain access to, or participate in a recipient's 
programs or activities is a fact-specific analysis. For example, one 
commenter questioned whether a document containing a recipient's 
directives on health care payments would be covered by the exception if 
the document did not otherwise discuss a particular program or 
activity. The Department anticipates that the exception would likely 
not cover such a document because the document is likely used as 
instructions for making payments to the recipient as part of the 
recipient's program and activity of collecting payments for health 
services it provides. The Department provides additional information 
about how the exception applies to documents that provide instructions 
or guidance below. Another example is an informational document 
containing a recipient hospital's description of the accessibility 
features available throughout its hospital building. The Department 
anticipates that the exception would likely not cover such a document. 
One of the recipient's programs and activities is maintaining its 
building, including the building's accessibility features. An 
individual with a disability who accesses the document to understand 
the hospital's accessibility features before going to the hospital to 
visit a relative receiving treatment there would be currently using the 
document to gain access to the hospital's building.
    Additionally, the Department notes that preexisting documents are 
also not covered by the exception if they provide instructions or 
guidance related to other documents that are directly used to apply 
for, gain access to, or participate in the recipient's programs or 
activities. Therefore, in addition to making a preexisting PDF 
application for benefits conform with WCAG 2.1 Level AA, a recipient 
would also have to make other preexisting documents conform with WCAG 
2.1 Level AA if they may be needed to obtain the benefits, complete the 
application, understand the process, or otherwise take part in the 
program, such as application instructions,

[[Page 40141]]

manuals, and guides, such as ``Questions and Answers'' documents.
    The Department recognizes that there may be some overlap between 
the content covered by the archived web content exception and the 
exception for preexisting conventional electronic documents. The 
Department notes that if web content is covered by the archived web 
content exception, it does not need to conform to WCAG 2.1 Level AA to 
comply with this rule, even if the content fails to qualify for another 
exception, such as the preexisting conventional electronic document 
exception. For example, after the date a recipient college is required 
to comply with this rule, its health clinic website may still include 
PDF documents containing the schedules from academic year 2017-2018 
that were posted in non-archived areas of the website in the summer of 
2017. Those PDFs may be covered by the preexisting conventional 
electronic documents exception because they were available on the 
college's health clinic website prior to the date it was required to 
comply with this rule, unless they are currently used to apply for, 
gain access to, or participate in a recipient's programs or activities, 
in which case, as discussed in this rule, they would generally need to 
conform to WCAG 2.1 Level AA. However, if the college moved the PDFs to 
an archived area of its health clinic site and the PDFs satisfied all 
parts of the definition of archived web content, the documents would 
not need to conform to WCAG 2.1 Level AA, regardless of how the 
preexisting conventional electronic document exception might otherwise 
have applied, because the content would fall within the archived web 
content exception.
    Also, because the exception only applies to preexisting 
conventional electronic documents, it would not cover documents that 
are open for editing if they are changed or revised after the date a 
recipient is required to comply with this rule. For example, a school 
may maintain an editable word processing file, such as a Google Docs 
file, that lists the dates on which the school held school board 
meetings. The school may post a link to the document on its website so 
members of the public can view the document online in a web browser, 
and it may update the contents of the document over time after 
additional meetings take place. If the document was posted to the 
school's website prior to the date it was required to comply with the 
rule, it would be a preexisting conventional electronic document unless 
the school added new dates to the document after the date it was 
required to comply with this rule. If the school made such additions to 
the document, the document would no longer be preexisting. 
Nevertheless, there are some circumstances where conventional 
electronic documents may be covered by the exception even if copies of 
the documents can be edited after the date the recipient is required to 
comply with this rule. For example, a recipient may post a Microsoft 
Word version of a flyer on its website prior to the date it is required 
to comply with this rule. A member of the public could technically 
download and edit that Word document after the date the recipient is 
required to comply with the rule, but their edits would not impact the 
``official'' posted version. Therefore, the official version would 
still qualify as preexisting under the exception. Similarly, PDF files 
that include fillable form fields (e.g., areas for a user to input 
their name and address) may also be covered by the exception so long as 
members of the public do not edit the content contained in the official 
posted version of the document. However, as discussed below, the 
exception does not apply to documents that are currently used to apply 
for, gain access to, or participate in a recipient's programs or 
activities. The Department notes that whether a PDF document is 
fillable may be relevant in considering whether the document is 
currently used to apply for, gain access to, or participate in a 
recipient's programs or activities. For example, a PDF form that must 
be filled out and submitted when submitting medical information to a 
health provider is currently used to apply for, gain access to, or 
participate in a recipient's programs or activities, and therefore 
would not be subject to the exception for preexisting conventional 
electronic documents.
    Comment: Commenters mentioned several populations that would be 
affected, including participants in adult education programs that may 
need to use another recipient's document for tools, skills and programs 
for future employment training; citizens who will be unable to petition 
the government for redress of grievances due to inaccessible meeting 
presentation documents; and researchers who will not have access to 
research publications, public health reports, and reports about 
community health needs.
    Several commenters pointed out that people with disabilities must 
disclose their disability in requests for accessible versions of 
preexisting conventional electronic documents and wait for the 
recipient to remediate the document. One commenter said that a 
recipient's time is better spent on making sure new conventional 
electronic documents are accessible rather than historical data.
    Several commenters pointed out that small recipients will have an 
additional three years to publish inaccessible materials, many of which 
will not be archived for several years. These commenters believed that 
these timeframes could be interpreted by these recipients to mean that 
those documents do not need to be made accessible.
    One commenter stated that documents that meet the preexisting 
conventional document exception but are no longer applicable to a 
current program or activity should be archived. The commenter wrote 
that the remaining documents included under this exception should be 
limited, if any. Another commenter said that documents that recipients 
provide are often ``living'' documents, meaning they will be edited 
often, but not archived for several years. A different commenter 
expressed appreciation of the Department's clarification that if a 
recipient updates an otherwise covered document after the effective 
date of this rule, it is no longer considered preexisting.
    One commenter noted that there are already advances in technology 
that allow for modification of preexisting conventional electronic 
documents.
    Response: The Department understands the concerns raised by 
commenters about the potential burdens that individuals with 
disabilities may face because some conventional electronic documents 
covered by the exception are not accessible. The Department emphasizes 
that even if certain content does not have to conform to the technical 
standard, recipients still need to ensure that their programs and 
activities offered using web content are accessible to people with 
disabilities on a case-by-case basis in accordance with their other 
obligations under section 504. These obligations include making 
reasonable modifications to avoid discrimination on the basis of 
disability, ensuring that communications with people with disabilities 
are as effective as communications with people without disabilities, 
and providing people with disabilities an equal opportunity to 
participate in or benefit from the recipient's programs or 
activities.\170\
---------------------------------------------------------------------------

    \170\ See 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77.
---------------------------------------------------------------------------

    The Department agrees that recipients may choose to archive their 
existing conventional electronic documents if they meet the definition 
of archived web content in Sec.  84.10. The Department also agrees that 
if a recipient changes or

[[Page 40142]]

revises a preexisting document following the date it is required to 
comply with the rule, the document would no longer be ``preexisting'' 
for the purposes of the exception.
Summary of Regulatory Changes
    For the reasons set forth above, the comments received, and other 
changes throughout this rulemaking, the Department is making limited 
modifications to Sec.  84.85(b). As discussed above, the Department is 
eliminating the phrase ``created by or for a recipient'' because such 
situations are now addressed by the ``directly or through contractual, 
licensing, or other arrangements'' language inserted into Sec.  
84.84(a) and (b). The Department is also replacing ``on a recipient's 
website or mobile app'' with ``as part of a recipient's web content or 
mobile apps'' to ensure consistency with other parts of the regulatory 
text by referring to ``web content'' rather than ``websites.'' In 
addition, the Department removed the phrase ``members of the public'' 
from the language of the exception for consistency with the edits to 
Sec.  84.84 of the section 504 regulation and title II of the ADA.
    The Department sought comment on the following questions pertaining 
to web content posted by a third party (Sec.  84.85(c)):
     Web Accessibility Question 23: What types of third-party 
web content can be found on websites of recipients? How would 
foreseeable advances in technology affect the need for creating an 
exception for this content? To what extent is this content posted by 
the recipients themselves, as opposed to third parties? To what extent 
do recipients delegate to third parties to post on their behalf? What 
degree of control do recipients have over content posted by third 
parties, and what steps can recipients take to make sure this content 
is accessible?
     Web Accessibility Question 24: What would the impact of 
this exception be on people with disabilities?
    The comments and our responses on Sec.  84.85(c) are set forth 
below.
    Comment: Commenters stated that social media profiles of recipients 
allow for public comments from news about emergencies like disasters or 
shooters and can be more current than the local news coverage. 
Commenters describe social media as spaces used to complain about 
community conditions, get advice, and get organized. Commenters also 
stated that social media is used to understand new programs, health 
policy, public comments, and public contracts. Some commenters found 
that tools for accessibility provided on social media platforms may not 
be sufficient for accessibility. Another commenter recommended 
requiring training on how to use these third-party accessibility 
features and that such trainings should be documented.
    Commenters mentioned situations, other than through social media, 
where web content is posted by a third party on a recipient's website 
such as when recipients post forums for public comments, promote 
individuals' rights to petition the government for redress of 
grievances, solicit real-time feedback during public meetings, or seek 
bids for contracts on third-party platforms. Other commenters mentioned 
teachers assigning work through a class message board that may require 
students to reply with video, essay, wiki page or other work. Another 
commenter mentioned scheduling tools, maps, calendars, and payment 
systems. One commenter said that third-party content could be uploaded 
to a case docket and the inaccessibility of such posting could deny the 
individual the right to a fair hearing as well as equal employment in 
the legal profession.
    Some commenters said that if this exception is eliminated, 
recipients can take steps to make sure content is accessible by 
changing settings, setting rules, and prompting users to include alt 
text.
    A few commenters said they are not able to control third-party 
content and supported this exception. Those commenters said it's up to 
the third-party to make content accessible. Some commenters said 
recipients often receive materials from third parties, including legal 
documents like signed contracts, that could be materially altered if 
the recipient makes them accessible. One commenter said that enforcing 
accessibility may force recipients to remove resources otherwise 
helpful to their enrollees such as population health management 
programs. Another commenter agreed with the exception but thought that 
the recipient should be able to provide an accessible system for the 
general structure and that text-only postings should be easy to make 
accessible and recommend that this level of accessibility be required.
    One commenter requested clarification on (1) criteria for how 
recipients can distinguish among third-party content that may or may 
not allow members of the public to participate in or benefit from the 
recipient's programs or activities; and (2) whether the technical 
standard requirements would apply to third-party materials that are 
linked within a recipient's website such as other websites or non-text 
content. Some commenters voiced concerns with the challenge of meeting 
requirements in the proposed time frame as they have already procured 
most of their software for development. One commenter recommended that 
OCR conduct additional outreach and educational activities to software 
and other vendors to ensure that they know about technology 
accessibility standards.
    Some other commenters requested that the Department edit part of 
the exception because while third-party content can be located on the 
recipient's website, it may not always be ``posted'' by the third-party 
entity.
    Response: The Department appreciates the responses, particularly 
those that identified situations where a third party may post content 
on a recipient's website. The final rule includes this exception in 
recognition of the fact that individuals other than a recipient's 
agents sometimes post content on a recipient's web content and mobile 
apps. For example, members of the public may sometimes post on a 
recipient's online message boards, wikis, social media, or other web 
forums, many of which are unmonitored, interactive spaces designed to 
promote the sharing of information and ideas. Members of the public may 
post frequently, at all hours of the day or night, and a recipient may 
have little to no control over the content that the third party posted. 
In some cases, a recipient's website may include posts from third 
parties dating back many years, which are likely of limited, if any, 
relevance today. Because recipients often lack control over this third-
party content, it may be challenging (or impossible) for them to make 
it accessible. Moreover, because this third-party content may be 
outdated or less frequently accessed than other content, there may be 
only limited benefit to requiring recipients to make this content 
accessible. An example would be a recipient website that includes a 
comment section that allows members of the public to post reviews or 
responses.
    Based on the comments received, the Department believes there may 
be confusion, especially among recipients, as to what content would be 
excepted. The exception in Sec.  84.85(c) does not apply to content 
posted by the recipient itself, or posted on behalf of the recipient 
due to contractual, licensing, or other arrangements, even if the 
content was originally created by a third party. For example, many 
recipients post third-party content on their websites, such as 
calendars, scheduling tools, maps, reservations systems, and payment 
systems that were developed

[[Page 40143]]

by an outside technology company. Sometimes a third party might even 
build a recipient's website template on the recipient's behalf. To the 
extent a recipient chooses to rely on third-party content on its 
website in these ways, it must select third-party content that meets 
the requirements of Sec.  84.84. This is because a recipient may not 
delegate away its obligations under section 504.\171\ If a recipient 
relies on a contractor or another third party to post content on the 
recipient's behalf, the recipient retains responsibility for ensuring 
the accessibility of that content.
---------------------------------------------------------------------------

    \171\ See 45 CFR 84.4, redesignated as Sec.  84.68(b)(1) 
(prohibiting discrimination directly or through a contractual, 
licensing, or other arrangement that would provide an aid, benefit, 
or service to a qualified individual with a disability that is not 
equal to that afforded others).
---------------------------------------------------------------------------

    The Department has added language to the third-party posted 
exception in the final rule to make clear that the exception does not 
apply where a third party is posting on behalf of the recipient. The 
language provides that the exception does not apply if ``the third 
party is posting due to contractual, licensing, or other arrangements 
with the recipient.'' The Department added this language to make clear 
that the exception only applies where the third-party posted content is 
independent from the actions of the recipient--that is, where there is 
no arrangement under which the third party is acting on behalf of the 
recipient. If such an arrangement exists, the third-party content is 
not covered by the exception and must be made accessible in accordance 
with this rule. This point is also made clear in language the 
Department added to the general requirements of Sec.  84.84, which 
provides that recipient shall ensure web content and mobile apps that 
the recipients provide or make available, ``directly or through 
contractual, licensing, or other arrangements,'' are readily accessible 
to and usable by individuals with disabilities. The Department decided 
to add the same clarification to the exception for third-party posted 
content because this is the only exception in the final rule that 
applies solely based upon the identity of the poster (whereas the other 
exceptions identify the type of content at issue), and the Department 
believes clarity about the meaning of ``third party'' in the context of 
this exception is critical to avoid the exception being interpreted 
overly broadly. The Department believes this clarification is justified 
by the concerns raised by commenters.
    The majority of the comments received addressed instances in which 
a State or local government may receive third party posts on public 
forum matters from members of the public, not instances where health 
and human service providers receive third party posts on their own 
websites. Many of the comments also focused on the social media posts 
of recipients that may receive third party comments over which the 
recipients have no control.
    The Department is committed to providing guidance on this 
rulemaking once finalized as appropriate.
    Comment: Many commenters disagreed with this exception. These 
commenters said that people would lose access to time-sensitive 
information, employment opportunities, educational content, and robust 
opportunities to participate in public feedback sessions. They also 
said that people with disabilities would not be able to participate in 
discussions of shared grievances and concerns about their communities 
that will lead to lack of ability to seek redress for those grievances. 
One commenter said that ADA covered entities may be less mindful of 
their ADA obligations if they are under no pressure from recipients to 
make certain content accessible. A different commenter remarked on the 
web accessibility standard differences between ADA title III entities 
posting on section 504 third-party pages, saying that because title III 
does not have specific web accessibility standards, third-party pages 
are less likely to make their content accessible if the section 504 
entity doesn't pressure them to do so.
    Several commenters expressed support for this exception. One 
commenter thought it was unreasonable to ask the recipient to police 
third-party content. One commenter was not sure how to pose a solution 
to inaccessible third-party content being posted, but thought that 
posting accessibility guidelines on their websites for third parties to 
use could be feasible. Another commenter thought that lack of access to 
third-party content was merely an annoyance to people with disabilities 
that could potentially become problematic if the recipient relies on 
the public to provide their customer support.
    Response: After reviewing the comments, the Department emphasizes 
at the outset the narrowness of this exception--any third-party content 
that is posted due to contractual, licensing, or other arrangements 
with the recipient would not be covered by this exception. The 
Department sometimes refers to the content covered by this exception as 
``independent'' or ``unaffiliated'' content to emphasize that this 
exception only applies to content that the recipient has not 
contracted, licensed, or otherwise arranged with the third party to 
post. This exception would generally apply, for example, where the 
recipient enables comments from members of the public on its social 
media page and third-party individuals independently comment on that 
post.
    The Department recognizes that the inclusion of this exception 
means web content posted by third parties may not consistently be 
accessible by default. The Department emphasizes that even if certain 
content does not have to conform with the technical standard, 
recipients still need to ensure that their programs and activities 
offered using web content and mobile apps are accessible to people with 
disabilities on a case-by-case basis in accordance with their existing 
obligations under section 504. These obligations include making 
reasonable modifications to avoid discrimination on the basis of 
disability, ensuring that communications with people with disabilities 
are as effective as communications with people without disabilities, 
and providing people with disabilities an equal opportunity to 
participate in or benefit from the recipient's programs or 
activities.\172\
---------------------------------------------------------------------------

    \172\ See 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77.
---------------------------------------------------------------------------

    Additionally, the Department wishes to clarify that while the 
exception for third-party posted content applies to that content which 
is posted by an independent third party, the exception does not apply 
to the authoring tools and embedded content provided by the recipient, 
directly or through contractual, licensing, or other arrangements. 
Because of this, authoring tools, embedded content, and other similar 
functions provided by the recipient that facilitate third-party 
postings are not covered by this exception and must be made accessible 
in accordance with the rule. Further, recipients should consider the 
ways in which they can facilitate accessible output of third-party 
content through authoring tools and guidance.
    With respect to comments pertaining to title III of the ADA, the 
Department emphasizes that this proposed rulemaking only addresses 
recipients' obligations under section 504.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.85(c) with limited modifications 
to clarify that the exception does not apply where a third party is 
posting on behalf of the recipient due to contractual, licensing, or 
other arrangements. This point is also made clear in the general 
requirements

[[Page 40144]]

of Sec.  84.84, which provides that recipients shall ensure web content 
and mobile apps that the recipients, ``directly or through contractual, 
licensing, or other arrangements'' provide or make available are 
readily accessible to and usable by individuals with disabilities.
    The Department sought comment on the following questions pertaining 
to linked third-party web content (Sec.  84.85(d)):
     Web Accessibility Question 25: Do recipients link to 
third-party web content to allow members of the public to participate 
in or benefit from the recipients' programs or activities? If so, to 
what extent does the third-party web content that recipients use for 
that purpose conform with WCAG 2.1 Level AA?
     Web Accessibility Question 26: What would the impact of 
this exception be on people with disabilities, and how would 
foreseeable advances in technology affect the need for this exception?
     Web Accessibility Question 27: What types of external 
mobile apps, if any, do recipients use to provide access to their 
programs and activities to members of the public, and how accessible 
are these apps? While the Department has not proposed an exception to 
the requirements proposed in Sec.  84.84 for recipients' use of 
external mobile apps, should the Department propose such an exception? 
If so, should this exception expire after a certain time, and how would 
this exception impact persons with disabilities?
    The comments and our responses on Sec.  84.85(d) are set forth 
below.
    Comment: Many commenters opposed this exception. Several commenters 
believed it was important that third parties share some of the 
responsibility for making their content accessible. Commenters provided 
examples of recipients linking to third-party web content such as a 
public health department providing up to date information about a 
shortage of a certain medication and identifying which pharmacies still 
have a supply. Some commenters said that recipients should only link 
content that is accessible on their own website.
    Several commenters were in favor of this exception. One commenter 
believed that enforcing accessibility may force recipients to remove 
resources otherwise helpful to their enrollees such as a population 
health management program tailored to certain enrollees.
    Response: After consideration of the comments received, the 
Department believes that inclusion of this exception is unnecessary, 
would result in confusion, and that removing the exception more 
consistently aligns with the language of section 504 and the 
Department's intent in proposing the exception in the NPRM. The 
Department believes that the proper analysis is whether a recipient has 
``directly, or through contractual, licensing, or other arrangements,'' 
provided or made available the third-party content. This means that, 
for example, when a recipient posts links to third-party web content on 
the recipient's website, the links located on the recipient's website 
and the organization of the recipient's website must comply with Sec.  
84.84. Further, when a recipient links to third-party web content that 
is provided by the recipient, directly or through contractual, 
licensing, or other arrangements, the recipient is also responsible for 
ensuring the accessibility of that linked content. However, when 
recipients link to third-party websites, unless the recipient has a 
contractual, licensing, or other arrangement with the website to 
provide or make available content, those third-party websites are not 
covered by section 504, because they are not programs or activities 
provided or made available by recipients, and thus recipients are not 
responsible for the accessibility of that content. By deleting this 
exception, the Department will maintain its original intent without 
unnecessary confusion for recipients or members of the public.
    Rather than conduct a separate analysis under the proposed 
exception in the NPRM, the Department believes the simpler and more 
legally consistent approach is for recipients to assess whether the 
linked third-party content reflects content that is covered under this 
rule to determine their responsibility to ensure the accessibility of 
that content. If that content is covered, it must be made accessible in 
accordance with the requirements of Sec.  84.84. However, if the 
content is not provided or made available by a recipient, directly or 
through contractual, licensing, or other arrangements, even though the 
recipient linked to that content, the recipient would not be 
responsible for making that content accessible. The recipient would 
still need to ensure the links themselves are accessible, but not the 
unaffiliated linked third-party content.
    Comment: Commenters who opposed this exception expressed the view 
that if the Department moves forward with this exception, it will 
undermine recipients' attempts to bring their vendors and partners into 
compliance. One commenter said that only posting accessible third-party 
content will reduce the chance of adverse impact on people with 
disabilities. This commenter believes that the provider writing the 
third-party content will benefit financially from such linkage and that 
this is a negotiating aspect for accessibility. Several commenters said 
that contracts with third parties should include accessibility 
requirements.
    One commenter proposed that if the linked content is important to 
understanding or providing context to users of the recipient's website, 
an alternate method of access should be provided. For example, the 
commenter suggested using a statement like ``Please follow this link 
for relevant context or contact our customer support line if you need 
help understanding this information.''
    Response: The Department reiterates that rather than conduct a 
separate analysis under the proposed exception in the NPRM, the simpler 
and more legally consistent approach is for recipients to assess 
whether the linked third-party content reflects content that is covered 
under this rule to determine their responsibility to ensure the 
accessibility of that content. If that content is covered, it must be 
made accessible in accordance with the requirements of Sec.  84.84. 
However, if the content is not provided or made available by a 
recipient, directly or through contractual, licensing, or other 
arrangements, even though the recipient linked to that content, the 
recipient would not be responsible for making that content accessible. 
The recipient would still need to ensure the links themselves are 
accessible, but not the unaffiliated linked third-party content. 
Whether third-party linked content is covered by the requirements of 
Sec.  84.84 depends on the facts and circumstances. In instances where 
linked third-party content provides instructions or guidance related to 
the recipient's programs and activities, the linked third-party content 
is likely subject to the requirements of Sec.  84.84.
    Comment: Most commenters thanked HHS for not including an exception 
for mobile apps. Commenters mentioned situations where external mobile 
apps would provide access to programs and activities, including but not 
limited to: telehealth, patient communication, appointment booking, 
bill payment, test results, medication information, tracking transit 
vehicles like non-emergency medical transportation, e-books, event 
announcements, tickets, food service ordering, media, and 
entertainment.
    One commenter said the accessibility requirements should be 
included in the

[[Page 40145]]

contracts between recipients and third-party app developers. Another 
stated that content created should also follow accessibility standards 
in apps. Another commenter said that people who are deaf, deafblind, 
deafdisabled, late-deafened, and hard of hearing are often unable to 
seek telehealth medical advice due to the inability of the conferencing 
platform to support sign language interpretation, video relay service, 
or captioning.
    One commenter encouraged HHS to include an exception for external 
mobile apps.
    Response: The Department appreciates the comments. As discussed 
above, the Department has removed the linked third-party web content 
exception from the final rule altogether.
    The Department recognizes that many recipients use mobile apps that 
are developed, owned, and operated by third parties, such as private 
companies, to allow the public to access the recipient's programs and 
activities. This part of the analysis refers to mobile apps that are 
developed, owned, and operated by third parties as ``external mobile 
apps.'' In the final rule, external mobile apps are subject to Sec.  
84.84 in the same way as mobile apps that are developed, owned, and 
operated by a recipient. Accordingly, if a recipient, directly or 
through contractual, licensing, or other arrangements, provides or 
makes available an external mobile app, that mobile app must comply 
with Sec.  84.84 unless it is subject to one of the exceptions outlined 
in Sec.  84.85.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are deleting proposed Sec.  84.85(d).
    Proposed Sec.  84.85(e) contained an exception for password-
protected class or course content used by postsecondary institutions 
with limitations based on when the recipient knew or should have known 
that a student with a disability is preregistered for a course or has 
enrolled in a course after the start of the academic term and will be 
unable to access the password-protected class or course content due to 
disability.
    The Department invited comment on the following questions 
pertaining to password-protected class or course content:
     Web Accessibility Question 28: Are there particular issues 
relating to the accessibility of digital books and textbooks that the 
Department should consider in finalizing this rule? Are there 
particular issues that the Department should consider regarding the 
impact of this rule on libraries?
     Web Accessibility Question 29: How difficult would it be 
for postsecondary institutions to comply with this rule in the absence 
of this exception?
     Web Accessibility Question 30: What would the impact of 
this exception be on people with disabilities?
     Web Accessibility Question 31: How do postsecondary 
institutions communicate general information and course-specific 
information to their students?
     Web Accessibility Question 32: Do postsecondary 
institutions commonly provide parents access to password-protected 
course content?
     Web Accessibility Question 33: The proposed exception and 
its limitations are confined to content on a password-protected or 
otherwise secured website for students enrolled in a specific course. 
Do postsecondary institutions combine and make available content for 
particular groups of students (e.g., newly admitted students or 
graduating seniors) using a single password-protected website and, if 
so, should such content be included in the exception?
     Web Accessibility Question 34: On average, how much 
content and what type of content do password-protected course websites 
of postsecondary institutions contain? Is there content posted by 
students or parents? Should content posted by students or parents be 
required to be accessible and, if so, how long would it take a 
postsecondary institution to make it accessible?
     Web Accessibility Question 35: How long would it take to 
make course content available on a recipient's password-protected or 
otherwise secured website for a particular course accessible, and does 
this vary based on the type of course? Do students need access to 
course content before the first day of class? How much delay in 
accessing online course content can a student reasonably overcome in 
order to have an equal opportunity to succeed in a course, and does the 
answer change depending on the point in the academic term that the 
delay occurs?
     Web Accessibility Question 36: To what extent do 
educational institutions use or offer students mobile apps to enable 
access to password-protected course content? Should the Department 
apply the same exceptions and limitations to the exceptions under 
proposed Sec.  84.85(e) introductory text and (e)(1) and (2), 
respectively, to mobile apps?
     Web Accessibility Question 37: Should the Department 
consider an alternative approach, such as requiring that all newly 
posted course content be made accessible on an expedited time frame, 
while adopting a later compliance date for remediating existing 
content?
    The comments and our responses on Sec.  84.85(e) are set forth 
below.
    Comment: Several commenters mentioned that DOJ and ED provided 
guidance in early 2010 which led most public colleges and universities 
to develop universally designed courses using a framework that outlines 
methods of designing courses to make them accessible for all students, 
including students with disabilities. Commenters stated that Federal 
agencies have also funded technical assistance resources for colleges 
and universities; such resources have included information about how to 
implement coordinated systems for the timely provision of accessible 
materials and technologies and some of these resources touch on 
improving access capabilities to Science, Technology, Engineering, Math 
(STEM) materials.
    Many commenters commented on how difficult it is for a college to 
wait until a student enrolls in a course and then have to retroactively 
attempt to fix inaccessible courses. Others mentioned that several 
colleges and universities already have policies requiring that new 
digital content be made accessible subject only to fundamental 
alteration and undue burden limitations. One commenter stated that 
simple courses may take five days to remediate while more complex 
courses with visual materials, audio materials, or other inaccessible 
documents will take significantly longer. This commenter added that if 
more than one course needs to be remediated, then the five-day period 
will no longer be feasible for simple courses. One commenter said that 
remediating a textbook can take the same amount of time as designing a 
new course. That same commenter mentioned that large videos can take a 
lot of time to caption and provide audio content on, even when 
outsourcing. One commenter mentioned that planning and coordination of 
the conversion of accessible content can take two to three hours per 
course.
    Another commenter mentioned that students may need access to the 
course prior to the official start of the semester. Several commenters 
talked about the impact of a student dropping and then adding a course 
during the beginning of the semester.
    One commenter asked who the responsible party is when a high school 
student enrolls in college courses in situations of dual enrollment.
    One commenter mentioned that when requirements for captioned 
television shows were first mandated, similar

[[Page 40146]]

concerns were expressed about the difficulty of coming into compliance 
with new regulations, but now captioned television is part of the 
industry norm.
    Some commenters supported the exception.
    Response: Having reviewed the public comments, the Department 
believes it is appropriate, as many commenters suggested, not to 
include the previously proposed course content exceptions in the final 
rule. For many of the reasons noted by commenters, the Department 
concludes that the proposed exceptions would not meaningfully ease the 
burden on educational institutions and would significantly exacerbate 
educational inequities for students with disabilities. The Department 
concludes that the proposed exceptions would have led to an 
unsustainable and infeasible framework for recipients to make course 
content accessible, which would not have resulted in reliable access to 
course content for students with disabilities. As many commenters 
noted, it would have been extremely burdensome and sometimes even 
impossible for educational institutions to comply consistently with the 
rapid remediation timeframes set forth in the limitations to the 
proposed exceptions in the NPRM, which would likely have led to 
widespread delays in access to course content for students with 
disabilities. While extending the remediation timeframes might have 
made it more feasible for educational institutions to comply under some 
circumstances, this extension would have commensurately delayed access 
for students with disabilities, which would have been harmful for the 
many reasons noted by commenters. The Department believes that it is 
more efficient and effective for educational institutions to use the 
two- or three-year compliance timeframe to prepare to make course 
content accessible proactively, instead of having to scramble to 
remediate content reactively.
    Accordingly, under the final rule, password-protected course 
content will be treated like any other content and will generally need 
to conform to WCAG 2.1 Level AA. To the extent that it is burdensome 
for recipients to make all of their content, including course content, 
accessible, the Department believes the rule contains a series of 
mechanisms that are designed to make it feasible for these institutions 
to comply, including the delayed compliance dates discussed in Sec.  
84.84, the other exceptions discussed in Sec.  84.85, the provisions 
relating to conforming alternate versions and equivalent facilitation 
discussed in Sec. Sec.  84.86 and 84.87, the fundamental alteration and 
undue burdens limitations discussed in Sec.  84.88, and the approach to 
measuring compliance with the rule discussed in Sec.  84.89.
    Comment: Many commenters said this exception would reduce a person 
with a disability's opportunity to change courses, exclude them from 
education, and give them fewer opportunities to succeed than their 
peers. Several commenters mentioned that this exception would put a 
student with a disability five days behind their peers and that for a 
January or summer-term course, a five-day delay could be a third of the 
course. Commenters also mentioned that due to the delays in graduation, 
students faced loss of earning from being unable to enter the workforce 
which was a cost that taxpayers took on through vocational 
rehabilitation funds, Federal student loans, and Pell grants.
    Some of the commenters mentioned a case where two blind students 
were excluded from an educational program because of inaccessible 
classroom materials, textbooks, websites, and educational applications. 
These commenters pointed out that the two students could not 
independently enroll in courses, nor could they use library databases, 
and were forced to either drop classes or accept a lower grade.
    A commenter discussed instances where most of the classes in a law 
school were not made accessible, but in one class where they were 
accessible, it took six to eight weeks for a student to receive them. 
This student had to extend her studies and the cost was split between 
the student and the State's vocational rehabilitation program.
    Some commenters pointed to the DOJ's May 19, 2023, Dear Colleague 
Letter on Online Accessibility at Postsecondary Institutions, saying 
that postsecondary institutions are already required to make all course 
materials accessible under the ADA.
    Response: The Department appreciates the comments and notes the 
important concerns for students with disabilities when postsecondary 
institutions do not make their courses accessible or do not provide 
accessible materials in a timely manner. As discussed, the Department 
has decided not to include proposed Sec.  84.85(e) in the final rule.
    The comments on this issue illustrate the challenges associated 
with setting remediation timeframes in this context. If the Department 
were to shorten the remediation timeframes, it would make it even 
harder for educational institutions to comply, and commenters have 
already indicated that the previously proposed remediation timeframes 
would not be workable for those institutions. If the Department were to 
lengthen the remediation timeframes, it would further exacerbate the 
inequities for students with disabilities that were articulated by 
commenters. The Department believes the better approach is to not 
include the course content exceptions in the final rule to avoid the 
need for educational institutions to make content accessible on an 
expedited timeframe on the back end, and to instead require recipients 
to treat course content like any other content covered by this rule.
    Comment: Commenters mentioned a wide variety of communication 
vehicles including emails, website postings, social media, mobile apps, 
phone video calls, live orientation events, in-class announcements, and 
learning management systems, that postsecondary institutions use to 
communicate information to their students.
    Response: The Department appreciates these comments and notes that 
the definitions of ``web content'' and ``mobile apps'' describe the 
content that is covered under this rule.
    Comment: Concerning whether postsecondary institutions provide 
parents with access to course content, one commenter mentioned the 
Family Educational Rights and Privacy Act which gives students the 
ability to allow parents and guardians limited access to student 
information including mid-semester and final grades. The commenter was 
concerned about access for parents with disabilities given permission 
under this law to view such content.
    Response: The Department appreciates these comments. As noted 
above, the Department will not adopt this proposed exception.
    Comment: On whether postsecondary institutions combine and make 
available content for particular groups, several commenters mentioned 
the learning management systems for general groups of students and said 
that password-protected websites should be required to meet WCAG 
guidelines.
    Response: The Department appreciates these comments and notes that 
this final rule will not adopt the previously proposed exceptions for 
password-protected course content. Password-protected course content 
will therefore need to be accessible, in accordance with this final 
rule.
    Comment: On how much and what content password-protected course 
websites contain, commenters listed electronic textbooks, slide decks, 
PDFs and digital articles, shared documents,

[[Page 40147]]

video and audio recordings, announcements, message boards, discussion 
boards, blogs, spreadsheets, assignments, tables and graphs, 
interactive labs, links to education sites, and interactive websites.
    Response: The Department appreciates these comments and notes that 
the breadth of content that postsecondary institutions offer to 
students is one of the reasons that the Department will not include 
this proposed exception in the final rule.
    Comment: One commenter stated that courses will likely take more 
than five days to remediate, especially if they rely on electronic 
textbooks and large videos.
    Another commenter mentioned that students may need access to the 
course prior to the official start of the semester. Several commenters 
talked about the impact of a student dropping and then adding a course 
during the beginning of the semester.
    One commenter asked who the responsible party is when a high school 
student enrolls in college courses in situations of dual enrollment.
    Response: The Department appreciates these comments and, for the 
reasons already discussed, this rule will not adopt the previously 
proposed course content exceptions that included this five-day 
remediation period.
    Comment: Some commenters supported applying the exceptions proposed 
at Sec.  84.85(e) introductory text and (e)(1) and (2) to mobile apps. 
Other commenters disagreed saying that there should be no exceptions 
and that there are already federally funded resources and technical 
assistance that support the acquisition of software and applications 
that are accessible and interactive with assistive technology.
    Response: The Department appreciates these comments. For the 
reasons previously noted, the final rule does not include the exception 
previously proposed at Sec.  84.85(e).
    Comment: On alternatives for this exception, including making newly 
posted course content accessible on an expedited time frame, commenters 
stated that priority should be given to entry-level courses, high 
enrollment courses, courses of the majors that students with 
disabilities are currently enrolled in, and courses with high drop, 
withdrawal and failing grade rates. Others mentioned being proactive 
about providing accessibility training to students and employees.
    One commenter encouraged HHS to hold third-party vendors 
accountable for creating accessible products and suggested funding 
staff positions for course compliance reviews and remediation work. One 
commenter said that postsecondary institutions should be required to 
make student-provided visual and audio content accessible to students 
with disabilities.
    Response: The Department appreciates these comments. For the 
reasons discussed, the Department is not including the proposed 
exception in the final rule and will not adopt the alternative 
approaches suggested. Also, the Department notes that the definitions 
of ``web content'' and ``mobile apps'' as well as the rule's exceptions 
and limitations describe the content that is covered under this rule.
    Comment: Many commenters said that digital books and textbooks 
should be accessible to people with disabilities. Several commenters 
specifically said that digital books and textbooks should conform to 
WCAG 2.2 accessibility standards, and that e-readers, learning 
management systems, and other technology that delivers digital books 
and textbooks must also be accessible.
    Many commenters wanted HHS to clarify that while schools or 
libraries may ultimately be responsible for providing access to digital 
books and textbooks, the third-party publishers play a significant role 
in the accessibility of textbooks and digital books. Some commenters 
indicated that if all libraries and schools required publishers to 
deliver accessible versions, then this would reduce the work that goes 
into converting them into accessible formats, often done by scanning 
pages and saving as PDF files. These commenters also said that schools 
and libraries are currently put into positions of having to procure, 
create, or break digital rights management protections to provide 
accessible textbooks and digital books.
    One commenter mentioned a study that found that out of a random 
sampling of 355 Open Educational Resource materials, only two passed an 
accessibility test, and that the accessibility barriers were either 
caused by the author or creator or the authoring software and 
publishing tools.
    One commenter mentioned additional challenges with STEM materials 
as they have complex equations, graphics, maps, and spatial educational 
materials and alt text may not be sufficient to convey the concept of 
these items.
    Commenters suggested when a course is updated to use a new textbook 
(or a new edition of an existing textbook), the Department should 
require a recipient to select the most accessible option that meets the 
instructional goals. Commenters said educational institutions should be 
responsible for providing accessible alternatives to assigned homework 
and readings if the textbook is not accessible. These commenters 
remarked that educational institutions should report to students 
whether a textbook is accessible or not when the course is advertised, 
since this materially impacts the likelihood of timely access to the 
textbook. Commenters said that advertising this information about the 
accessibility status of a textbook also helps make the faculty members 
more aware for future decision making.
    Response: The Department appreciates these comments and also 
recognizes the importance of the accessibility of digital textbooks for 
students regardless of disability status, and notes that the majority 
of commenters expressed concern with the possibility of lowered 
standards for the accessibility of digital textbooks. After weighing 
all the comments, the Department believes the most prudent approach is 
to treat digital textbooks, including EPUBs (electronic publications), 
the same as all other educational course materials, which are subject 
to this rule's accessibility requirements. The Department believes that 
treating digital textbooks, including EPUBs, in any other way would 
lead to the same problems with respect to the proposed exceptions for 
password-protected class or course content. For example, if the 
Department created a similar exception for digital textbooks, it could 
result in courses being partially accessible and partially inaccessible 
for certain time periods while books are remediated to meet the needs 
of an individual with a disability, which could be confusing for both 
educational institutions and students with disabilities. Furthermore, 
it would be virtually impossible to set forth a remediation timeframe 
that would provide educational institutions sufficient time to make 
digital textbooks accessible without putting students with disabilities 
too far behind their peers. Accordingly, the Department did not make 
any changes to the rule to specifically address digital textbooks. The 
Department notes that if there are circumstances where certain aspects 
of digital textbooks cannot conform to WCAG 2.1 Level AA without 
changing the meaning of the content, recipients may assess whether the 
fundamental alteration or undue financial or administrative burdens 
limitations apply, as provided in Sec.  84.88. However, if an action 
required to comply with Sec.  84.88 would result in such an alteration 
or such burdens, a recipient must take any other action that would not 
result in such an alteration or such

[[Page 40148]]

burdens but would nevertheless ensure that, to the maximum extent 
possible, individuals with disabilities receive the benefits or 
services provided by the recipient.
    The Department also recognizes that WCAG 2.2 is a newer standard 
but, as discussed, the Department is adopting WCAG 2.1 Level AA to 
balance benefits for individuals with disabilities with feasibility for 
recipients making their content accessible in compliance with this 
rule. In addition, the Department believes that digital textbooks 
should be subject to the same standards as other web content and mobile 
apps to reduce confusion and ensure a uniform experience and 
expectations for users with disabilities.
    The Department also recognizes the importance of the accessibility 
of digital books for students regardless of disability status, and 
notes that the majority of commenters expressed concern with the 
possibility of lowered standards for the accessibility of digital 
books. The Department agrees that third-party publishers will play an 
important role in making digital books accessible and appreciates the 
concerns expressed by commenters that educational institutions may have 
limited power to require third-party vendors to make content 
accessible. The Department believes that the delayed compliance dates 
in this rulemaking will help recipients establish contracts with third-
party vendors with sufficient lead time to enable the production of 
materials that are accessible upon being created. In addition, if this 
rulemaking incentivizes publishers to produce accessible content, that 
decision may enable hundreds of educational institutions subject to 
this rule to obtain accessible content. The Department also expects 
that as a result of this rulemaking, there will be an increase in 
demand for accessible content from third-party vendors, and therefore a 
likely increase in the number of third-party vendors that are equipped 
to provide accessible content.
    The Department also appreciates the suggestion of requiring an 
advertisement of whether a course's digital books are accessible, but 
believes that a more appropriate solution, based mainly on the 
overwhelming support for accessible digital books, would simply be to 
require all such content to be accessible.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, the Department has decided not to include proposed Sec.  
84.85(e) in the final rule.
    Proposed Sec.  84.85(f) contained an exception for password-
protected class or course content used by elementary and secondary 
schools with limitations based on when the recipient knew or should 
have known that a student is preregistered for a course or has enrolled 
in a course after the start of the academic term, and the student or 
their parent will be unable to access the password-protected class or 
course content due to disability. The Department invited comment on the 
following questions pertaining to elementary and secondary schools:
     Web Accessibility Question 38: How difficult would it be 
for elementary and secondary schools to comply with this rule in the 
absence of this exception?
     Web Accessibility Question 39: What would the impact of 
this exception be on people with disabilities?
     Web Accessibility Question 40: How do elementary and 
secondary schools communicate general information and class- or course-
specific information to students and parents?
     Web Accessibility Question 41: The proposed exception and 
its limitations are confined to content on a password-protected or 
otherwise secured website for students enrolled, or parents of students 
enrolled, in a specific class or course. Do elementary or secondary 
schools combine and make available content for all students in a 
particular grade or certain classes (e.g., all 10th graders in a school 
taking chemistry in the same semester) using a single password-
protected website and, if so, should such content be included in the 
exception?
     Web Accessibility Question 42: Do elementary and secondary 
schools have a system allowing a parent with a disability to provide 
notice of their need for accessible course content?
     Web Accessibility Question 43: On average, how much 
content and what type of content do password-protected course websites 
of elementary or secondary schools contain? Is there content posted by 
students or parents? Should content posted by students or parents be 
required to be accessible and, if so, how long would it take an 
elementary or secondary school to make it accessible?
     Web Accessibility Question 44: How long would it take to 
make class- or course content available on a recipient's password-
protected or otherwise secured website for the particular class or 
course accessible, and does this vary based on the type of course? Do 
parents and students need access to class or course content before the 
first day of class? How much delay in accessing online course content 
can a student reasonably overcome in order to have an equal opportunity 
to succeed in a course, and does the answer change depending on the 
point in the academic term that the delay occurs?
     Web Accessibility Question 45: To what extent do 
elementary or secondary schools use or offer students or parents mobile 
apps to enable access to password-protected course content? Should the 
Department apply the same exceptions and limitations to the exceptions 
under Sec.  84.85(f) introductory text and (f)(1) through (4), 
respectively, to mobile apps?
     Web Accessibility Question 46: Should the Department 
consider an alternative approach, such as requiring that all newly 
posted course content be made accessible on an expedited time frame, 
while adopting a later compliance date for remediating existing 
content?
    The comments and our responses on Sec.  84.85(f) are set forth 
below.
    Comment: Several commenters disagreed with implementing the 
exception for password-protected class or course content. Commenters 
said that this exception conflicts with ED's recommendations to States 
and school districts regarding the best ways to exemplify conditions 
and services for creating and sustaining a Statewide, high-quality 
accessible, educational materials (AEM) provision system that is also 
designed to meet statutory requirements under the Individuals with 
Disabilities Education Act (IDEA) and to assure students have access to 
the requisite assistive technology to access AEM. Commenters said if 
the exception remains, virtually every student with a relevant 
disability would be discriminated against in violation of both Federal 
and State statutes.
    A couple of commenters mentioned that there have been legal actions 
that have resulted in schools directing significant financial and human 
power to accessibility. Commenters stated that by not including the 
exception and requiring accessibility of password-protected class or 
course content, the burden of making materials accessible would be 
taken off of teachers, who are already overburdened, and instead 
require action and investment from schools and districts.
    Some commenters urged HHS to not sanction recipients that purchase 
inaccessible content and platforms. Several other commenters agreed 
with this exception.
    Response: The Department appreciates these comments and recognizes 
that many commenters believe this proposed exception would have a 
negative impact on the education of elementary and secondary students 
with disabilities. For all of the reasons

[[Page 40149]]

commenters have provided, in addition to the reasons discussed above 
regarding the Department's decision not to adopt Sec.  84.85(e), the 
Department will not include this proposed exception in the final rule.
    With respect to schools and districts redirecting funding and 
resources towards accessibility, the Department acknowledges that, 
while this rulemaking may unburden teachers from having to ensure 
accessibility, it would also impose costs on recipients. Full estimates 
of costs can be found in the accompanying RIA. While recipients will 
likely incur costs to comply with this final rule, the RIA indicates 
that in comparing annualized costs and benefits of this rule, the 
monetized benefits to society outweigh the costs. In addition, the 
Department reminds recipients that they are already required to ensure 
that their programs and activities, including the programs and 
activities of educational institutions, are accessible to people with 
disabilities.\173\
---------------------------------------------------------------------------

    \173\ See 45 CFR 84.4, redesignated as Sec.  84.68.
---------------------------------------------------------------------------

    Comment: Several commenters stated that all technology used to 
deliver instruction in the classroom should be accessible to all 
individuals with disabilities from kiosks, websites, and applications; 
to third-party websites or apps used for class content; and to any form 
of information and communication technology, including virtual reality 
(VR).
    Commenters mentioned that accessibility challenges were evident 
during the COVID-19 public health emergency, and that students and 
adults with disabilities experienced significant barriers to education, 
including not being able to access instruction because schools claimed 
they did not have the capacity to make inaccessible online curriculum 
programs and related digital materials accessible. Commenters noted 
that when digital devices (e.g., laptops and tablets) and materials 
(print, digital, audio, video, etc.) were provided for remote use in K-
16 settings in particular, many were not accessible or interoperable 
(compatible) with the assistive technology used by the student, 
preventing equal access and opportunity to make the same academic 
progress as students without disabilities.
    Some commenters said that five days to remediate is often 
unreasonable because schools may not have control over third-party 
platforms, and even if the school could meet the five-day deadline, it 
still puts the child with a disability at a disadvantage behind their 
peers. Some commenters mentioned an online science experiment without 
audio information that required that the student connect pieces by 
using finger gestures. One commenter provided an example where a 
student with a disability was given an exemption for that activity but 
missed out on the learning opportunity. Another example was given of a 
popular online mathematics curriculum which stated that third graders 
will encounter more than 300 math skills over the course of 47 lessons. 
A student could miss two or three lessons and 15 to 30 skills in a 
five-day period. Another commenter mentioned a situation where a school 
district had to buy a $12,000 textbook in Braille. While the other 
students were online playing games, the student with a disability was 
reading a textbook and was not included in the learning. The teacher 
also had to spend time figuring out how to align the textbook and 
online learning.
    Some commenters said this exception leaves parents with 
disabilities out of meaningful participation in their child's education 
and makes it difficult for teachers with disabilities to stay employed.
    Commenters pointed out that Federal law requires that students 
exhaust all remedies under the IDEA before pursuing an ADA complaint. 
These commenters stated that the proposed exception would only further 
delay student access to course materials in a timely way.
    Response: The Department appreciates these comments and 
acknowledges the concerns about accessibility challenges during the 
COVID-19 pandemic, the proposed 5-day remediation period, and concerns 
about parents with disabilities not being able to participate in their 
child's education. The education of children in elementary and 
secondary settings is of vital importance and the Department does not 
intend to limit the educational opportunities, development, and future 
career potential for students with disabilities. Because, in part, of 
the issues raised in the comments above, as well as the reasons 
discussed earlier, the Department will not include this proposed 
exception in the final rule. The Department also appreciates the 
comments about the burden on teachers to provide accessible content and 
align the content with their lesson plans. The Department believes that 
rulemaking in this area will encourage schools and districts to create 
or acquire accessible content, removing this burden from teachers and 
spurring vendors to improve the accessibility of their offerings. With 
respect to the different technologies that recipients use to provide 
education, the Department again notes the definitions of ``web 
content'' and ``mobile apps'' describe the content that is covered 
under this rule.
    Comment: On how elementary and secondary schools communicate with 
students and parents, commenters listed several methods including 
through emails, posts on school district websites, and posts on social 
media websites.
    Response: The Department appreciates these comments and notes that 
the definitions of ``web content'' and ``mobile apps'' describe the 
content that is covered under this rule.
    Comment: Some commenters remarked that content on a password-
protected website should not be a part of this exception. They stated 
that content could be hosted by a third party such as a textbook 
publisher. These commenters said that when third parties ensure their 
content is accessible, it reduces the work that teachers have to do as 
the content is grouped by type of course.
    Response: The Department appreciates these comments. While section 
504 applies to recipients of Departmental financial assistance, 
recipients will have to ensure that any web content or mobile apps they 
provide or make available, directly or through contractual, licensing, 
or other arrangements, is accessible. This approach is consistent with 
the existing framework under section 504.\174\ Under this framework, 
recipients have obligations in other section 504 contexts where they 
choose to contract, license, or otherwise arrange with third parties to 
provide programs or activities.
---------------------------------------------------------------------------

    \174\ See 45 CFR 84.4(b)(1), redesignated Sec.  84.68(b)(1).
---------------------------------------------------------------------------

    Comment: A few commenters said that most schools do not have a 
system for parents to notify the school of a need for access and that 
most do not provide access to their course content. Another commenter 
recommended that the Department require schools to inquire with parents 
about accessibility needs for both them and their students during the 
registration process. One commenter mentioned that special education 
services for students are not meant for parents with disabilities and 
that teachers and staff are usually the ones adapting materials for 
students.
    Response: The Department appreciates these comments. In part 
because of issues with parents and students requesting accessible web 
content and mobile apps and elementary and secondary institutions 
providing that accessible web content and mobile apps, the Department 
does

[[Page 40150]]

not intend to keep this proposed exception in the final rule.
    Comment: One commenter said that password-protected course websites 
may merely contain supplemental information or all the information that 
the student needs to participate in class, and everything in-between. 
Another commenter listed types of documents that may be on a password-
protected course website, including commercially produced curriculum, 
commercially produced e-books, teacher-created materials, materials 
purchased or otherwise obtained by the teacher from an external source, 
PDFs of passages from old books, and student-created materials.
    Some commenters mentioned that content could be posted by third 
parties such as other students doing group work. One commenter said 
content posted by students or parents should also be required to be 
accessible.
    One commenter suggested teaching children in 5th grade or above 
about how to make their own content accessible. This commenter argued 
that this could be a life skill that would be useful for future 
employment opportunities, otherwise, the school would have to remediate 
content posted by students.
    One commenter asked the Department whether course content that can 
be accessed through a PIN authentication or the user's personal email 
login information would be considered password-protected course content 
under the NPRM.
    Response: The Department appreciates these comments on the range of 
password-protected content on elementary and secondary websites. In 
part because of the wide range of content on password-protected course 
websites and its importance, the Department will not be including this 
exception in the final rule. Again, the Department notes that the 
definitions of ``web content'' and ``mobile apps'' describe the content 
that is covered, subject to the rule's exceptions and limitations.
    Comment: Several commenters said that course content should be 
accessible on or before the first day of class for students and 
parents. One commenter mentioned that teachers sometimes require course 
work over the summer which means the content would need to be 
accessible earlier. One commenter said any delays should be minimal and 
offset by modifications in the meantime. Commentors pointed out that 
delays caused unnecessary stress and reduce learning outcomes.
    One commenter stated that schools will take as long as the 
Department gives them to make the content accessible regardless of how 
long it actually takes them. The commenter stated that schools are 
juggling competing priorities, so if the Department makes this a 
priority, schools will follow.
    Response: The Department understands these concerns and 
acknowledges there may be situations where providing remediated course 
content in five days would neither be possible or preferrable for the 
recipient, student, or parent. For the reasons already discussed, this 
final rule will not be adopting this exception.
    Comment: Some commenters want the Department to adopt the same 
exceptions and limitations to the exceptions under Sec.  84.85(f)(1) 
through (4) to mobile apps. Many commenters disagreed with applying the 
exception to mobile apps to enable access to password-protected course 
content for parents and students. Several commenters mentioned that a 
large majority of digital interfaces used by schools have associated 
mobile apps which need to be accessible for students and parents with 
disabilities and can be interoperable with assistive technology.
    One commenter mentioned that students as young as kindergarten use 
mobile devices to access course materials, complete course work, and 
communicate with teachers. Another commenter said that schools even 
require mobile app use for course work in some instances.
    Response: The Department appreciates these comments. The Department 
recognizes the importance and growing ubiquity of mobile apps in a 
variety of areas, including elementary and secondary education. For the 
reasons previously noted, the final rule does not include the exception 
previously proposed at Sec.  84.85(e).
    Comment: On whether the Department should consider an alternate 
approach to this exception, such as requiring all newly posted course 
content to be made accessible on an expedited time frame, one commenter 
said priority can be given to newly posted course content and existing 
required reading with the goal that the rest of the content come into 
compliance as well. Another commenter thought the Department should not 
extend the 2-to-3-year implementation period. Instead, the commenter 
said that schools should create a plan for remediation on the fastest 
possible timeline with the option to apply fundamental alteration and 
undue burdens limitations if appropriate and necessary.
    One commenter mentioned that school curriculums for K-12 are often 
purchased on either a district or State level every three-to-five 
years. While such planning gives teachers less autonomy over their 
curriculums, by purchasing curriculums on a district or State level, 
accessibility concerns have drastically reduced. The same commenter 
recommended that institutions prioritize their proactive accessibility 
efforts along three dimensions: (1) classes that are required for 
graduation or promotion to the next grade, (2) district-level 
curriculum and educational technology adoption, and (3) courses that 
move at an accelerated pace (e.g., honors, advanced placement).
    Response: The Department appreciates these comments. While some 
commenters suggested requiring recipients to follow specific procedures 
to comply with this rule, the variety of proposals the Department 
received from commenters indicates the harm from being overly 
prescriptive in how educational institutions comply with the rule. The 
final rule provides educational institutions with the flexibility to 
determine how best to bring their content into compliance within the 
two or three years they have to begin complying with this rule.
    Some commenters suggested that the Department should require all 
new course content to be made accessible more quickly, while providing 
a longer time period for recipients to remediate existing course 
content. There were a range of proposals from commenters about how this 
could be implemented. Some commenters suggested that the Department 
could set up a prioritization structure for existing content, requiring 
educational institutions to prioritize the accessibility of, for 
example, content for required courses; content for district-level 
courses; and content for honors-level courses.
    The Department does not believe these approaches would be feasible. 
Treating new course content differently than existing course content 
could result in particular courses being partially accessible and 
partially inaccessible, which could be confusing for both educational 
institutions and students, and make it challenging for students with 
disabilities to have full and timely access to their courses. Moreover, 
even under this hybrid approach, the Department would presumably need 
to retain remediation timeframes for recipients to meet upon receiving 
a request to make existing course content accessible. For the reasons 
discussed above, it would be virtually impossible to set forth a 
remediation timeframe that would

[[Page 40151]]

provide educational institutions sufficient time to make content 
accessible without putting students with disabilities too far behind 
their peers. In addition, given the wide variation in types of courses 
and educational institution structures, it would be difficult to set a 
prioritization structure for existing content that would be workable 
across all such institutions.
    The Department believes the better approach is to not include the 
course content exceptions in the final rule to avoid the need for 
educational institutions to make content accessible on an expedited 
timeframe on the back end, and to instead require recipients to treat 
course content like any other content covered by this rule.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, the Department has decided not to include proposed Sec.  
84.85(f) in the final rule.
    Proposed Sec.  84.85(g) contained an exception for individualized, 
password-protected documents. The Department invited comment on 
following questions regarding this exception:
     Web Accessibility Question 47: What kinds of 
individualized, conventional electronic documents do recipients make 
available and how are they made available (e.g., on websites or mobile 
apps)? How difficult would it be to make such documents accessible? How 
do people with disabilities currently access such documents?
     Web Accessibility Question 48: Do recipients have an 
adequate system for receiving notification that an individual with a 
disability requires access to an individualized, password-protected 
conventional electronic document? What kinds of burdens do these 
notification systems place on individuals with disabilities and how 
easy are these systems to access? Should the Department consider 
requiring a particular system for notification or a particular process 
or timeline that recipients must follow when they are on notice that an 
individual with a disability requires access to such a document?
     Web Accessibility Question 49: What would the impact of 
this exception be on people with disabilities?
     Web Accessibility Question 50: Which provisions of this 
rule, including any exceptions (e.g., individualized, password-
protected conventional electronic documents; content posted by a third 
party), should apply to mobile apps?
    The comments and our responses regarding Sec.  84.85(g) are set 
forth below.
    Comment: Commenters provided many examples of individualized, 
password-protected conventional electronic documents, including, but 
not limited to: test results, clinical summaries, post-operative care 
instructions, current and past bills, determination letters, patient 
health summaries, patient letters, questionnaires, results and reports, 
appointments, past visits, immunization records, explanation of 
benefits, receipts, diagnoses, imaging results, and treatment plans.
    Some commenters supported the individualized, password-protected 
conventional electronic document exception. Several others wanted the 
exception eliminated, saying that many documents are already being made 
accessible in accordance with public law, such as electronic health 
records. These commenters also mentioned that making such documents 
accessible can be done without much difficulty; one commenter said that 
this is achievable through automated generation of accessible PDFs from 
HTML with layouts that are not overly complex. Many commenters pointed 
to the fundamental alteration and undue burdens limitations already 
available to recipients. Commenters believed this exception was 
disincentivizing recipients making content accessible.
    One commenter asked the Department for guidance on how to best 
support providing accommodations to the public for PDF documents and 
whether they would need to make any workflow undertaken by a patient 
after authenticating such as when a patient uses a patient portal to 
schedule an appointment with their provider.
    Response: After reviewing the comments, the Department has decided 
to retain this exception in the final rule. The Department continues to 
believe that recipients often provide or make available a large volume 
of individualized, password-protected or otherwise secured conventional 
electronic documents, many of which do not pertain to individuals with 
disabilities, and it may be difficult to make all such documents 
accessible. Therefore, the Department believes it is sensible to permit 
entities to focus their resources on ensuring accessibility for the 
specific individuals who need accessible versions of those documents. 
If, as many commenters suggested, it is in fact more efficient and less 
expensive for some recipients to make all such documents accessible by 
using a template, there is nothing in the rule that prevents recipients 
from taking that approach.
    The Department notes that this exception applies only to password-
protected or otherwise secured content. Content may be otherwise 
secured if it requires a member of the public to use some process of 
authentication or login to access the content. Unless subject to 
another exception, conventional electronic documents that are on a 
recipient's general, public web platform would not be covered by the 
exception.
    The Department recognizes that there may be some overlap between 
the content covered by this exception and the exception for certain 
preexisting conventional electronic documents, Sec.  84.85(b). The 
Department notes that if web content is covered by the exception for 
individualized, password-protected or otherwise secured conventional 
electronic documents, it does not need to conform to WCAG 2.1 Level AA 
to comply with this rule, even if the content fails to qualify for 
another exception, such as the preexisting conventional electronic 
document exception. For example, a recipient might retain on its 
website an individualized, password-protected unpaid medical bill in a 
PDF format that was posted before the date the entity was required to 
comply with this rule. Because the PDF would fall within the exception 
for individualized, password-protected or otherwise secured 
conventional electronic documents, the documents would not need to 
conform to WCAG 2.1 Level AA, regardless of how the preexisting 
conventional electronic documents exception might otherwise have 
applied.
    The Department understands the concerns raised by commenters about 
the potential burdens that people with disabilities may face if 
individualized password-protected or otherwise secured documents are 
not all made accessible at the time they are created and about the 
potential negative consequences for people with disabilities who do not 
have timely access to the documents that pertain to them. The 
Department reiterates that, even when documents are covered by this 
exception, the existing section 504 obligations require recipients to 
furnish appropriate auxiliary aids and services where necessary to 
ensure an individual with a disability has, for example, an equal 
opportunity to enjoy the benefits of a service.\175\ Such auxiliary 
aids and services could include, for example, providing PDFs that are 
accessible. In order for such an auxiliary aid or service to ensure 
effective communication, it must be provided in a timely manner, and in 
such a way as to protect the

[[Page 40152]]

privacy and independence of the individual with a disability. Whether a 
particular solution provides effective communication depends on 
circumstances in the interaction, including the nature, length, 
complexity, and context of the communication, per Sec.  84.77(b)(2). 
For example, the presence of an emergency situation or a situation 
where information is otherwise urgently needed would impact what it 
would mean for a recipient to ensure it is meeting its effective 
communication obligations. Recipients can help to facilitate effective 
communication by providing individuals with disabilities with notice 
about how to request accessible versions of their individualized 
documents.
---------------------------------------------------------------------------

    \175\ See 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77.
---------------------------------------------------------------------------

    Moreover, while individualized, password-protected or otherwise 
secured conventional electronic documents are subject to this 
exception, any public-facing, web- or mobile app-based system or 
platform that a recipient uses to provide or make available those 
documents or to allow the public to make accessibility requests, must 
itself be accessible as defined in Sec.  84.84 if it is not covered by 
another exception. The recipient would need to ensure that that 
platform complies with Sec.  84.84. In addition, web content and 
content in mobile apps that does not take the form of individualized, 
password-protected or otherwise secured conventional electronic 
documents but instead notifies users about the existence of such 
documents must still conform to WCAG 2.1 Level AA unless it is covered 
by another exception. For example, a hospital's health records portal 
may include a list of links to download individualized, password-
protected PDF medical records. Under WCAG 2.1 Success Criterion 2.4.4, 
a recipient would generally have to provide sufficient information in 
the text of the link alone, or in the text of the link together with 
the link's programmatically determined link context, so that a user 
could understand the purpose of each link and determine whether they 
want to access a given document.
    The Department also reiterates that a recipient might also need to 
make reasonable modifications to ensure that a person with a disability 
has equal access to its programs or activities. For example, if a 
covered medical provider has a policy under which administrative 
support staff are in charge of uploading PDF versions of X-ray images 
into patients' individualized accounts after medical appointments, but 
the provider knows that a particular patient is blind, the provider may 
need to modify its policy to ensure that a staffer with the necessary 
expertise provides an accessible version of the information the patient 
needs from the X-ray. Also, at this time, the Department declines to 
provide guidance on PDF documents, but may provide future guidance, 
where appropriate.
    The Department also understands that some of these documents, 
especially documents without complex layouts, may be made accessible 
relatively easily, including through automated generation. Even with 
the proposed exception, many recipients may decide that they will 
change their templates for individualized password-protected or 
otherwise secured conventional electronic documents to make them all 
accessible in order to avoid modifying individual documents after the 
fact for people with disabilities.
    Comment: Many commenters said that the time that recipients spend 
on building a notification system would be better spent on making 
documents accessible from the start. Otherwise, commenters said that 
recipients generally do not provide a clear means of notification. One 
commenter wanted more robust requirements and enforcement. Several 
commenters suggested making methods of contact in easy-to-access 
location such as on a download index page, front page of a portal and 
throughout the online system in an accessible manner.
    One State said it did not have ways for individuals to request 
access to documents on their main State web pages, but individual units 
and programs sometimes have an email for general questions and 
comments.
    Commenters want HHS to establish timelines for providing accessible 
individualized, password-protected conventional electronic documents if 
this exception is implemented. Examples that commenters provided 
included same day for post-operative instructions and quickly for 
bills. One commenter recommended a maximum of five business days for 
remediation as delays in getting access to individualized, password-
protected conventional electronic document can be inequitable or cause 
harm.
    Several commenters mentioned that once such a request is made for 
an accessible individualized, password-protected conventional 
electronic document, then the recipient should apply that request to 
all documents and notices sent to the requester with a disability going 
forward.
    Response: The Department appreciates the comments including those 
on notification systems and making all individualized password-
protected or otherwise secured conventional electronic documents 
accessible from the start as well as methods of contact. The 
Department, however, believes it is more appropriate to give recipients 
flexibility in how they provide or make available individualized, 
password-protected or otherwise secured conventional electronic 
documents, so long as those recipients ensure that individuals with 
disabilities have timely access to the information contained in those 
documents in an accessible format that protects the privacy and 
independence of the individual with a disability.
    Moreover, the Department does not believe it is workable to 
prescribe a set number of days under which a recipient must make these 
documents accessible since the content and quantity of individualized, 
password-protected or otherwise secured documents may vary widely, from 
a one-page medical bill to thousands of pages of medical records. The 
range of possible timeframes that commenters suggested, coupled with 
the comments the Department received on the remediation timeframes that 
were associated with the previously proposed course content exceptions, 
helps to illustrate the challenges associated with selecting a specific 
number of days for recipients to remediate content.
    The Department also notes that where, for example, a recipient is 
on notice that an individual with a disability needs accessible 
versions of an individualized, password-protected PDF medical bill, 
that recipient is generally required to continue to provide information 
from that medical bill in an accessible format in the future; the 
recipient generally may not require the individual with a disability to 
make repeated requests for accessibility.
    The Department reiterates that, even when documents are covered by 
this exception, other section 504 obligations require recipients to 
furnish appropriate auxiliary aids and services where necessary to 
ensure an individual with a disability has, for example, an equal 
opportunity to enjoy the benefits of a service.\176\ Whether a 
particular solution provides effective communication depends on 
circumstances in the interaction, including the nature, length, 
complexity, and context of the communication.\177\
---------------------------------------------------------------------------

    \176\ 45 CFR 84.77(b)(1).
    \177\ 45 CFR 84.77(b)(2).
---------------------------------------------------------------------------

    Comment: Several commenters said that the impact of an exception 
for individualized, password-protected documents on people with 
disabilities would be having to rely on companions

[[Page 40153]]

or strangers to read their documents, attempting to request accessible 
formats, or pursuing legal action. If the recipient posts contact 
information on their websites, many commenters pointed out that the 
onus is still on the individual with a disability to make the requests 
for accessible individualized, password-protected conventional 
electronic documents. Commenters mentioned these requests take time, 
and a patient with a disability who has just had surgery, for example, 
may not have the energy to make requests for accessible post-operative 
instructions. Additionally, commenters said that people with 
disabilities will continue to have difficulty with independence when 
paying their bills, receiving communications from their doctors, 
reviewing and using school transcripts, reading job offer letters or 
notices related to a contract, accessing their medical records and 
other personal information.
    Some commenters believe that if the Department moves forward with 
this exception, then recipients are disincentivized from prioritizing 
accessibility.
    Response: While the Department agrees that people with disabilities 
will sometimes need access to password-protected or otherwise secured 
conventional electronic documents on a rapid timeline, particularly 
when they have important health implications, the Department disagrees 
that this proposed exception signals to recipients that the Department 
is disincentivizing accessibility. Recipients are still required to 
ensure that they provide accessible versions of documents to people 
with disabilities who request them.
    As discussed, the Department believes that recipients often provide 
or make available a large volume of individualized, password-protected 
or otherwise secured conventional electronic documents, many of which 
do not pertain to individuals with disabilities, and it may be 
difficult to make all such documents accessible. Therefore, the 
Department believes it is sensible to permit recipients to focus their 
resources on ensuring accessibility for the specific individuals who 
need accessible versions of those documents.
    The Department intends to strike the appropriate balance between 
accessibility and for people with disabilities and practicality for 
recipients.
    Comment: On whether any of the exceptions discussed should apply to 
mobile apps, several commenters said that they believe the Department 
should adopt the same rules for web content and mobile apps since many 
people use mobile phones almost exclusively.
    Response: The Department agrees that the exceptions should apply to 
both web content and mobile apps to the extent both web content and 
mobile apps are used in the contexts covered by the exceptions.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.85(g) (redesignated as Sec.  
84.85(d) due to deletions of preceding paragraphs) with the addition of 
``or otherwise secured conventional electronic'' to the heading of the 
exception, for consistency with the text of the exception itself. This 
modification does not change the meaning or substance of the exception 
as proposed in the NPRM.
Conforming Alternate Versions (Sec.  84.86)
    Proposed Sec.  84.86 stated that recipients may use conforming 
alternate versions of web content instead of making their web content 
accessible only if it is not possible to make their web content 
directly accessible due to technical or legal limitations.
    The Department invited comment on the following:
     Web Accessibility Question 51: Would allowing conforming 
alternate versions due to technical or legal limitations result in 
individuals with disabilities receiving unequal access to a recipients' 
programs and activities?
    The comments and our responses regarding Sec.  84.86 are set forth 
below.
    Comment: Many commenters agreed that conforming alternate versions 
of web content should only be allowed in instances where it is 
impossible to make the web content in question compliant with WCAG 2.1 
Level AA due to technical or legal limitations. They argued that 
requiring a separate website or alternative method for people with 
disabilities is inherently unequal and recipients should avoid such 
situations unless absolutely necessary. They also noted that 
historically, separate websites for people with disabilities have not 
provided the same access and functionality. Some commenters stated that 
recipients should be allowed to create conforming alternate version of 
web content regardless of technical or legal limitations because it 
provides more flexibility for recipients. Some of those commenters 
argued that WCAG 2.1 allows for conforming alternate versions and 
stated a belief that a separate website would allow for greater 
attention to detail and operability for people with disabilities.
    Response: We appreciate the comments regarding the Department's 
approach to ``conforming alternate versions.'' Under WCAG, a 
``conforming alternate version'' is a separate web page that, among 
other things, is accessible, up-to-date, contains the same information 
and functionality as the inaccessible web page, and can be reached via 
a conforming page or an accessibility-supported mechanism.\178\ 
Conforming alternate versions are allowable under WCAG. For reasons 
explained below, the Department believes it is important to put 
guardrails on when recipients may use conforming alternate versions 
under this rule. This final rule, therefore, specifies that the use of 
conforming alternate versions is permitted only in limited, defined 
circumstances, which represents a slight departure from WCAG 2.1. 
Section 84.86 states that a recipient may use conforming alternate 
versions of web content to comply with Sec.  84.84 only where it is not 
possible to make web content directly accessible due to technical or 
legal limitations.
---------------------------------------------------------------------------

    \178\ See W3C, Web Content Accessibility Guidelines 2.1, 
Conforming Alternate Version (June 5, 2018), https://www.w3.org/TR/WCAG21/#dfn-conforming-alternate-version [https://perma.cc/5NJ6-UZPV].
---------------------------------------------------------------------------

    Generally, to conform to WCAG 2.1, a web page must be directly 
accessible in that it satisfies the success criteria for one of the 
defined levels of conformance--in the case of this final rule, Level 
AA.\179\ However, as noted above, WCAG 2.1 also allows for the creation 
of a ``conforming alternate version.'' The purpose of a ``conforming 
alternate version'' is to provide individuals with relevant 
disabilities access to the information and functionality provided to 
individuals without relevant disabilities, albeit via a separate 
vehicle. The Department believes that having direct access to 
accessible web content provides the best user experience for many 
individuals with disabilities, and it may be difficult to reliably 
maintain conforming alternate versions, which must be kept up to date. 
W3C explains that providing a conforming alternate version is intended 
to be a ``fallback option for conformance to WCAG and the preferred 
method of conformance is to make all content directly accessible.'' 
\180\ However, WCAG 2.1 does not explicitly limit the circumstances 
under which a

[[Page 40154]]

recipient may choose to create a conforming alternate version of a web 
page instead of making the web page directly accessible.
---------------------------------------------------------------------------

    \179\ See W3C, Web Content Accessibility Guidelines 2.1 (June 5, 
2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.
    \180\ See W3C, Understanding Conformance (last updated June 20, 
2023), https://www.w3.org/WAI/WCAG21/Understanding/conformance 
[https://perma.cc/QSG6-QCBL].
---------------------------------------------------------------------------

    The Department is concerned that WCAG 2.1 can be interpreted to 
permit the development of two separate versions of a recipient's web 
content--one for individuals with relevant disabilities and another for 
individuals without relevant disabilities--even when doing so is 
unnecessary and when users with disabilities would have a better 
experience using the main web content that is accessible. Such an 
approach would result in segregated access for individuals with 
disabilities and be inconsistent with how section 504's core principles 
of inclusion and integration have been historically interpreted.\181\ 
The Department is also concerned that the frequent or unbounded 
creation of separate web content for individuals with disabilities may, 
in practice, result in unequal access to information and functionality. 
For example, and as discussed later in this section, the Department is 
concerned that an inaccessible conforming alternate version may provide 
information that is outdated or conflicting due to the maintenance 
burden of keeping the information updated and consistent with the main 
web content. As another example, use of a conforming alternate version 
may provide a fragmented, separate, or less interactive experience for 
people with disabilities because recipients may assume that interactive 
features are not financially worthwhile or otherwise necessary to 
incorporate in conforming alternate versions. Ultimately, as discussed 
later in this section, the Department believes there are particular 
risks associated with permitting the creation of conforming alternate 
versions where not necessitated by the presence of technical or legal 
limitations.
---------------------------------------------------------------------------

    \181\ Redesignated, with minor revisions, at 45 CFR 84.68(d).
---------------------------------------------------------------------------

    Due to the concerns about user experience, segregation of users 
with disabilities, unequal access to information, and maintenance 
burdens discussed above, the Department is adopting a slightly 
different approach to conforming alternate versions than that provided 
under WCAG 2.1. Instead of permitting recipient to adopt conforming 
alternate versions whenever they believe it is appropriate, Sec.  84.86 
states that a recipient may use conforming alternate versions of web 
content to comply with Sec.  84.84 only where it is not possible to 
make web content directly accessible due to technical limitations 
(e.g., technology is not yet capable of being made accessible) or legal 
limitations (e.g., web content that cannot be changed due to legal 
reasons). The Department believes conforming alternate versions should 
be used rarely--when it is truly not possible to make the content 
accessible for reasons beyond the recipient's control. However, Sec.  
84.86 does not prohibit recipients from providing alternate versions of 
web pages in addition to their WCAG 2.1 Level AA compliant main web 
page to possibly provide users with certain types of disabilities a 
better experience.
    Having reviewed public comments and considered this issue 
carefully, the Department believes the rule strikes the right balance 
to permit conforming alternate versions, but only where it is not 
possible to make web content directly accessible due to technical or 
legal limitations. The Department believes that this approach ensures 
that generally, people with disabilities will have direct access to the 
same web content that is accessed by people without disabilities, but 
it also preserves flexibility for recipients in situations where, due 
to a technical or legal limitation, it is impossible to make web 
content directly accessible. The Department also believes that this 
approach will help avoid the concerns noted above with respect to 
segregation of people with disabilities by defining only specific 
scenarios when the use of conforming alternate versions is appropriate.
    The determination of when conforming alternate versions are needed 
or permitted varies depending on the facts. For example, a conforming 
alternate version would not be permissible just because a recipient's 
web developer lacked the knowledge or training needed to make content 
accessible; that would not be a technical limitation within the meaning 
of Sec.  84.86. By contrast, the recipient could use a conforming 
alternate version if its web content included a new type of technology 
that it is not yet possible to make accessible, such as a specific kind 
of immersive virtual reality environment. Similarly, a recipient would 
not be permitted to claim a legal limitation because its general 
counsel failed to approve contracts for a web developer with 
accessibility experience. Instead, a legal limitation would apply when 
the inaccessible content itself could not be modified for legal reasons 
specific to that content. The Department believes this approach is 
appropriate because it ensures that, whenever possible, people with 
disabilities have access to the same web content that is available to 
people without disabilities.
    The Department would also like to clarify the interaction between 
the allowance of conforming alternate versions under Sec.  84.86 and 
the general limitations provided in Sec.  84.88. These two provisions 
are applicable in separate circumstances. If there is a technical or 
legal limitation that prevents a recipient from complying with Sec.  
84.84 for certain content, Sec.  84.86 is applicable. The recipient can 
create a conforming alternate version for that content, and, under 
Sec.  84.86, that recipient will be in compliance with this final rule. 
Separately, if a fundamental alteration or undue financial and 
administrative burdens prevent a recipient from complying with Sec.  
84.84 for certain content, Sec.  84.88 is applicable. As set forth in 
Sec.  84.88, the recipient must still ``take any other action that 
would not result in such an alteration or such burdens but would 
nevertheless ensure that individuals with disabilities receive the 
benefits or services provided by the recipient to the maximum extent 
possible.'' A recipient's legitimate claim of fundamental alteration or 
undue burdens does not constitute a legal limitation under Sec.  84.86 
for which a conforming alternate version automatically suffices to 
comply with the rule. Rather, the recipient must ensure access ``to the 
maximum extent possible'' under the specific facts and circumstances of 
the situation. Under the specific facts a recipient is facing, the 
recipient's best option to ensure maximum access may be an alternate 
version of its content, but the recipient also may be required to do 
something more or something different. Because the language of Sec.  
84.88 already allows for alternate versions if appropriate for the 
facts of recipient's fundamental alteration or undue burdens, the 
Department does not see a need to expand the language of Sec.  84.86 to 
address commenters' concerns.
    The Department also wishes to clarify the relationship between 
Sec. Sec.  84.86 and 84.89, which are analyzed independently of each 
other. Section 84.86 provides that a recipient may use conforming 
alternate versions of web content, as defined by WCAG 2.1, to comply 
with Sec.  84.84 only where it is not possible to make web content 
directly accessible due to technical or legal limitations. Accordingly, 
if a recipient does not make its web content directly accessible and 
instead provides a conforming alternate version when not required by 
technical or legal limitations, the recipient may not use that 
conforming alternate version to

[[Page 40155]]

comply with its obligations under the rule, either by relying on Sec.  
84.86 or by invoking Sec.  84.89.
Summary of Regulatory Changes
    The Department will make a slight edit to Sec.  84.86 to replace 
``websites and web content'' with ``web content.'' Upon further review, 
the Department determined that ``web content'' is more in line with the 
rest of the rule and would limit potential confusion among sections, 
including Sec.  84.84. This change will not alter the meaning of Sec.  
84.86.
Equivalent Facilitation (Sec.  84.87)
    Proposed Sec.  84.87 stated that recipients may use alternative 
methods to those described in this subpart when the alternative method 
results in substantially equivalent or greater accessibility and 
usability of the web content or mobile app.
    Section 84.87 provides that nothing prevents a recipient from using 
designs, methods, or techniques as alternatives to those prescribed in 
the regulation, provided that such alternatives result in substantially 
equivalent or greater accessibility and usability. The 1991 and 2010 
ADA Standards for Accessible Design both contain an equivalent 
facilitation provision.\182\ The reason for allowing for equivalent 
facilitation in this subpart is to encourage flexibility and innovation 
by recipients while still ensuring equal or greater access to web 
content and mobile apps. Especially in light of the rapid pace at which 
technology changes, this provision is intended to clarify that 
recipients can use methods or techniques that provide equal or greater 
accessibility than this rule would require. For example, if a recipient 
wanted to conform its web content or mobile app to a future web and 
mobile app accessibility standard that expands accessibility 
requirements beyond WCAG 2.1 Level AA, this provision makes clear that 
the recipient would be in compliance with this rule. Recipients could 
also choose to comply with this rule by conforming their web content to 
WCAG 2.2 Level AA \183\ because WCAG 2.2 Level AA provides 
substantially equivalent or greater accessibility and usability to WCAG 
2.1 Level AA; in particular, WCAG 2.2 Level AA includes additional 
success criteria not found in WCAG 2.1 Level AA and every success 
criterion in WCAG 2.1 Level AA, with the exception of one success 
criterion that is obsolete.\184\
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    \182\ See 28 CFR part 36, appendix D at 1000 (1991); 36 CFR part 
1191, appendix B at 329.
    \183\ W3C, WCAG 2 Overview, https://www.w3.org/WAI/standards-guidelines/wcag/ [https://perma.cc/RQS2-P7JC] (Oct. 5, 2023).
    \184\ W3C, What's New in WCAG 2.2 Draft, https://www.w3.org/WAI/standards-guidelines/wcag/new-in-22/ [https://perma.cc/GDM3-A6SE] 
(Oct. 5, 2023).
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    Similarly, a recipient could comply with this rule by conforming 
its web content and mobile apps to WCAG 2.1 Level AAA,\185\ which is 
the same version of WCAG and includes all the WCAG 2.1 Level AA 
requirements, but includes additional requirements not found in WCAG 
2.1 Level AA for even greater accessibility. For example, WCAG 2.1 
Level AAA includes Success Criterion 2.4.10 \186\ for section headings 
used to organize content and Success Criterion 3.1.4 \187\ that 
includes a mechanism for identifying the expanded form or meaning of 
abbreviations, among others. The Department believes that this 
provision offers needed flexibility for recipients to provide usability 
and accessibility that meet or exceed what this rule would require as 
technology continues to develop. The responsibility for demonstrating 
equivalent facilitation rests with the recipient.
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    \185\ W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Sec.  5.2 Conformance Requirements (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs [https://perma.cc/XV2E-ESM8].
    \186\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 2.4.10 Section Headings (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs:~:text=Success%20Criterion%202.4.10,Criterion%204.1.2 [https://perma.cc/9BNS-8LWK].
    \187\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 3.1.4 Abbreviations (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#conformance-reqs:~:text=Success%20Criterion%203.1.4,abbreviations%20is%20availabl
e [https://perma.cc/ZK6C-9RHD].
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Summary of Regulatory Changes
    The Department is finalizing Sec.  84.87 as proposed with a single 
minor modification to add a missing comma.
Duties (Sec.  84.88)
    Proposed Sec.  84.88 stated that if compliance with Sec.  84.84 
would result in a fundamental alteration in the nature of a program or 
activity or undue financial and administrative burdens, the recipient 
is only required to comply with Sec.  84.84 to the extent it does not 
result in a fundamental alteration or undue financial and 
administrative burdens. It also stated that a recipient has the burden 
of proving that compliance with Sec.  84.84 would result in such 
alteration or burdens, and the decision that compliance would result in 
such alteration or burdens must be made by the head of a recipient or 
their designee after considering all resources available for use in the 
funding and operation of the program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. In addition, it stated that a recipient shall take any 
other action that would not result in such an alteration or such 
burdens but would nevertheless ensure that individuals with 
disabilities receive the benefits or services provided by the recipient 
to the maximum extent possible.
    The comments and our responses regarding Sec.  84.88 are set forth 
below.
    Comment: Many commenters expressed appreciation for proposed Sec.  
84.88 and opposed any measures that would constitute a fundamental 
alteration or undue burden. Some commenters asked for additional 
guidance on what would constitute a fundamental alteration or undue 
burden.
    Response: The Department appreciates these comments. In determining 
whether an action would result in undue financial and administrative 
burdens, all of a recipient's resources available for use in the 
funding and operation of the program or activity should be considered. 
The burden of proving that compliance with the requirements of Sec.  
84.84 would fundamentally alter the nature of program or activity, or 
would result in undue financial and administrative burdens, rests with 
the recipient. These limitations on a recipient's duty to comply with 
the regulatory provisions mirror the fundamental alteration and undue 
burdens compliance limitations under the ADA title II regulation,\188\ 
and are consistent with how the limitations already operate in many 
contexts under section 504. These limitations are thus familiar to many 
recipients.
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    \188\ See 28 CFR 35.150(a)(3), 35.164, 35.130(b)(7).
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    The Department believes, in general, it would not constitute a 
fundamental alteration of a recipient's programs or activities to 
modify web content or mobile apps to make them accessible within the 
meaning of this final rule. However, this is a fact-specific inquiry, 
and the Department provides some examples later in this section of when 
a recipient may be able to claim a fundamental alteration. Moreover, 
like the fundamental alteration or undue burdens limitations in the 
title II regulation and elsewhere in this final rule, Sec.  84.88 does 
not relieve a recipient of all obligations to individuals with 
disabilities. Although a recipient under this rule is not required to 
take actions that would result in a fundamental

[[Page 40156]]

alteration in the nature of a program or activity, or in undue 
financial and administrative burdens, it nevertheless must comply with 
the requirements of this subpart to the extent that compliance does not 
result in a fundamental alteration or undue financial and 
administrative burdens. For instance, a recipient might determine that 
complying with all of the success criteria under WCAG 2.1 Level AA 
would result in a fundamental alteration or undue financial and 
administrative burdens. However, the recipient must then determine 
whether it can take any other action that would not result in such an 
alteration or such burdens, but would nevertheless ensure that 
individuals with disabilities receive the benefits or services provided 
by the recipient to the maximum extent possible. To the extent that the 
recipient can, it must do so. This may include the recipient bringing 
its web content into conformance to some of the WCAG 2.1 Level A or 
Level AA success criteria.
    Whether the undue burdens limitation applies is a fact-specific 
assessment that involves considering a variety of factors. For example, 
some recipients have minimal operating budgets measured in the 
thousands or tens of thousands of dollars. If such a recipient had an 
archive section of its website with a large volume of older and 
historical material (such as old photographs), the recipient would have 
an obligation under the existing section 504 regulation to ensure that 
its programs and activities offered using web content and mobile apps 
are accessible to individuals with disabilities. However, it might be 
an undue burden for the recipient to make all those materials fully 
accessible in a short period of time in response to a request by an 
individual with a disability.\189\ Whether the undue burdens limitation 
applies, however, would depend, among other things, on how large the 
recipient's operating budget is and how much it would cost to make the 
materials in question accessible. Whether the limitation applies will 
also vary over time. Increases in the recipient's budget, or changes in 
technology that reduce the cost of making the historical materials 
accessible, may make the limitation inapplicable. Lastly, even where it 
would impose an undue burden on the recipient to make its historical 
materials accessible within a certain time frame, the recipient would 
still need to take any other action that would not result in such a 
burden but would nevertheless ensure that individuals with disabilities 
receive the benefits or services provided by the recipient to the 
maximum extent possible.
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    \189\ See proposed 45 CFR 84.68(b)(1)(ii), (b)(7), 84.77, 84.81.
---------------------------------------------------------------------------

    Application of the fundamental alteration limitation is similarly 
fact specific. For example, a recipient might hold an art contest in 
which students submit alternative covers for their favorite books and 
students view and vote on the submissions on the recipient's website. 
It would likely be a fundamental alteration to require the recipient to 
modify each piece of artwork so that any text drawn on the alternative 
covers, such as the title of the book or the author's name, satisfies 
the color contrast requirements in the technical standard. Even so, the 
recipient would still be required to take any other action that would 
not result in such an alteration but would nevertheless ensure that 
individuals with disabilities could participate in the contest to the 
maximum extent possible.
    Because each assessment of whether the fundamental alteration or 
undue burdens limitations applies will vary depending on the recipient, 
the time of the assessment, and various other facts and circumstances, 
the Department declines to adopt any rebuttable presumptions about when 
the fundamental alteration or undue burdens limitations would apply.
    Complying with the web and mobile app accessibility requirements 
set forth in Sec. Sec.  84.84 to 84.89 means that a recipient of 
Federal financial assistance from the Department is not required by 
this section 504 rule to make any further modifications to the web 
content or content in mobile apps that it makes available to the 
public. However, it is important to note that compliance with 
Sec. Sec.  84.84 through 84.89 will not relieve recipients of their 
distinct employment-related obligations under section 504, which 
applies the employment standards set forth in title I of the ADA, as 
described in Sec.  84.16. The Department realizes that this rule is not 
going to meet the needs of and provide access to every individual with 
a disability, but believes that setting a consistent and enforceable 
web accessibility standard that meets the needs of a majority of 
individuals with disabilities will provide greater predictability for 
recipients, as well as added assurance of accessibility for individuals 
with disabilities.
    This approach is consistent with the approach that the Department 
of Justice has taken in the context of physical accessibility under 
title II. In that context, a covered entity is not required to exceed 
the applicable design requirements of the ADA Standards even if certain 
wheelchairs or other power-driven mobility devices require a greater 
degree of accessibility than the ADA Standards provide.\190\ The entity 
may still be required, however, to make other modifications to how it 
provides a program, service, or activity, where necessary to provide 
access for a specific individual. For example, where an individual with 
a disability cannot physically access a program provided in a building 
that complies with the ADA Standards, the covered entity does not need 
to make physical alterations to the building but may need to take other 
steps to ensure that the individual has an equal opportunity to 
participate in and benefit from that program.
---------------------------------------------------------------------------

    \190\ See 28 CFR part 35, appendix A at 626 (2022).
---------------------------------------------------------------------------

    Similarly, just because a recipient is in compliance with this 
rule's web content or mobile app accessibility standard does not mean 
it has met all of its obligations under section 504 or other applicable 
laws--it means only that it is not required to make further changes to 
the web content or content in mobile apps that it makes available. If 
an individual with a disability, on the basis of disability, cannot 
access or does not have equal access to a program or activity through a 
recipient's web content or mobile app that conforms to WCAG 2.1 Level 
AA, the recipient is still obligated under Sec.  84.84(a) to provide 
the individual an alternative method of access to that program or 
activity unless the recipient can demonstrate that alternative methods 
of access would result in a fundamental alteration in the nature of a 
program or activity or in undue financial and administrative burdens. 
The recipient also must still satisfy its general obligations to 
provide effective communication, reasonable modifications, and an equal 
opportunity to participate in or benefit from the recipient's programs 
or activities.
    The recipient must determine on a case-by-case basis how best to 
meet the needs of those individuals who cannot access a program or 
activity that the recipient provides through web content or mobile apps 
that comply with all of the requirements under WCAG 2.1 Level AA. A 
recipient should refer to 45 CFR 84.68(b)(1)(ii) to determine its 
obligations to provide individuals with disabilities an equal 
opportunity to participate in and enjoy the benefits of the recipient's 
programs or activities. A recipient should refer to Sec.  84.77 
(effective communication) to determine its obligations to provide 
individuals with disabilities with the appropriate auxiliary aids and 
services necessary to afford them an equal opportunity to

[[Page 40157]]

participate in, and enjoy the benefits of, the recipient's programs or 
activities. A recipient should refer to Sec.  84.68(b)(7) (reasonable 
modifications) to determine its obligations to provide reasonable 
modifications in policies, practices, or procedures to avoid 
discrimination on the basis of disability. It is helpful to provide 
individuals with disabilities with information about how to obtain the 
modifications or auxiliary aids and services they may need. For 
example, while not required in this final rule, a recipient is 
encouraged to provide an email address, accessible link, accessible web 
page, or other accessible means of contacting the recipient to provide 
information about issues individuals with disabilities may encounter 
accessing web content or mobile apps or to request assistance. 
Providing this information will help recipients to ensure that they are 
satisfying their obligations to provide equal access, effective 
communication, and reasonable modifications.
    The Department also clarifies that a recipient's requirement to 
comply with general equal access, effective communication, and 
reasonable modification obligations remains in place for content that 
fits under one of the exceptions under Sec.  84.85. For example, in the 
appropriate circumstances, a recipient may be obligated to add captions 
to a video that falls within the archived content exception and provide 
the captioned video file to the individual with a disability who needs 
access to the video, or edit an individualized password-protected PDF 
to be usable with a screen reader and provide it via a secure method to 
the individual with a disability. Of course, a recipient may also 
choose to further modify the web content or content in mobile apps it 
makes available to make that content more accessible or usable than 
Sec. Sec.  84.84 to 84.89 require. In the context of the above 
examples, for instance, the Department believes it will often be most 
economical and logical for a recipient to post the captioned video, 
once modified, as part of web content made available to the public; or 
to modify the individualized PDF template so that it is used for all 
members of the public going forward.
Summary of Regulatory Changes
    The Department's final rule removes the word ``full'' in Sec.  
84.88 so that the text reads ``compliance'' rather than ``full 
compliance.'' The Department made this change because Sec.  84.84(b)(1) 
and (2) clarify that compliance with this final rule includes complying 
with the success criteria and conformance requirements under Level A 
and Level AA specified in WCAG 2.1. This minor revision does not affect 
the meaning of Sec.  84.88, but rather removes an extraneous word to 
avoid redundancy and confusion.
Measuring Compliance
    In the NPRM, the Department considered four possible approaches to 
defining and measuring compliance, which involved linking noncompliance 
with a technical standard to: (a) a numerical percentage; (b) 
situations that impact the ability to have equal access to the website 
or mobile app; (c) the use of robust policies and practices for 
accessibility feedback, testing, and remediation; or (d) organizational 
maturity.\191\ The Department also invited comment on the following 
questions regarding measuring compliance:
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    \191\ 88 FR 63392, 63447-49 (Sept. 14, 2023).
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     Web Accessibility Question 52: What should be considered 
sufficient evidence to support an allegation of noncompliance with a 
technical standard for purposes of enforcement action? For example, if 
a website or mobile app is noncompliant according to one testing 
methodology, or using one configuration of assistive technology, 
hardware, and software, is that sufficient?
     Web Accessibility Question 53: In evaluating compliance, 
do you think a recipient's policies and practices related to web and 
mobile app accessibility (e.g., accessibility feedback, testing, 
remediation) should be considered and, if so, how?
     Web Accessibility Question 54: If you think a recipient's 
policies and practices for receiving feedback on web and mobile app 
accessibility should be considered in assessing compliance, what 
specific policies and practices for feedback would be effective? What 
specific testing policies and practices would be effective? What 
specific testing policies and practices would be effective?
     Web Accessibility Question 55: Should a recipient be 
considered in compliance with this part if the recipient remediates web 
and mobile app accessibility errors within a certain period of time 
after the recipient learns of nonconformance through accessibility 
testing or feedback? If so, what time frame for remediation is 
reasonable?
     Web Accessibility Question 56: Should compliance with this 
rule be assessed differently for web content that existed on the 
recipient's website on the compliance date than for web content that is 
added after the compliance date?
     Web Accessibility Question 57: In evaluating compliance, 
do you think a recipient's organizational maturity related to web and 
mobile app accessibility should be considered and, if so, how? For 
example, what categories of accessibility should be measured? Would 
such an approach be useful for recipients?
     Web Accessibility Question 58: Should the Department 
consider limiting recipients' compliance obligations if nonconformance 
with a technical standard does not prevent a person with disabilities 
from accessing the programs and activities offered on the recipient's 
website or mobile app?
     Web Accessibility Question 59: When assessing compliance, 
should all instances of nonconformance be treated equally? Should 
nonconformance with certain WCAG 2.1 success criteria, or 
nonconformance in more frequently accessed content or more important 
core content, be given more weight when determining whether a website 
or mobile app meets a particular threshold for compliance?
     Web Accessibility Question 60: How should the Department 
address isolated or temporary noncompliance \192\ with a technical 
standard and under what circumstances should noncompliance be 
considered isolated or temporary? How should the Department address 
noncompliance that is a result of technical difficulties, maintenance, 
updates, or repairs?
---------------------------------------------------------------------------

    \192\ See 28 CFR 35.133(b).
---------------------------------------------------------------------------

     Web Accessibility Question 61: Are there any local, State, 
Federal, international, or other laws or policies that provide a 
framework for measuring, evaluating, defining, or demonstrating 
compliance with web or mobile app accessibility requirements that the 
Department should consider adopting?
    The provision at Sec.  84.89, adopted in the final rule and 
discussed in the summary of regulatory changes, adopts approach (b), 
``situations that impact the ability to have equal access to the 
website or mobile app,'' from the NPRM, with a few changes.
    Comment: Many commenters provided their opinions on what will be 
necessary to measure compliance with the proposed standard adopted in 
Sec.  84.84. Almost all commenters recognized that it would be nearly 
impossible for recipients to conform to WCAG 2.1 Level AA across 100% 
of web content and mobile apps, and recognized that there must be a 
more nuanced method for measuring compliance. Most commenters also

[[Page 40158]]

supported a consistent standard that could be applied across the range 
of recipients. One commenter stated that because the Department intends 
to apply a nuanced approach to measuring compliance, any of these 
methods for measuring compliance will be too difficult to enforce and, 
therefore, the Department should not adopt any of the proposed 
approaches to measuring compliance with the requirements of Sec.  
84.84.
    Response: The Department agrees that any method for measuring 
compliance must be consistently applied across all recipients. The 
Department is also persuaded that requiring 100 percent conformance to 
WCAG 2.1 Level AA would not be the most prudent approach, and that a 
recipient's compliance obligations can be limited under some narrow 
circumstances without undermining the rule's objective of ensuring 
equal access to web content and mobile apps. The Department believes 
its approach should emphasize actual access, be consistent with 
existing legal frameworks, and is supported by a wide range of 
commenters.
    First, digital content changes much more frequently than physical 
buildings--another area covered by set accessibility standards--do. 
Every modification to web content or a mobile app could lead to some 
risk of falling out of perfect conformance to WCAG 2.1 Level AA. 
Recipients will need to address this risk much more frequently under 
this subpart than they do under physical access requirements, because 
web content and mobile apps are updated much more often than buildings 
are. By their very nature, web content and mobile apps can easily be 
updated often, while most buildings are designed to last for years, if 
not decades, without extensive updates.
    As such, recipients trying to comply with their obligations under 
this rule will need to evaluate their compliance more frequently than 
they evaluate the accessibility of their buildings. But regular 
consideration of how any change that they make to their web content or 
mobile app will affect conformance to WCAG 2.1 Level AA and the 
resulting iterative updates may still allow minor nonconformances to 
escape notice. Given these realities attending web content and mobile 
apps the Department believes that it is likely to be more difficult for 
recipients to maintain perfect conformance to the technical standard 
set forth in this rule than it is to comply with physical access 
standards. Commenters agreed that maintaining perfect conformance to 
the technical standard would be difficult.
    Web content and content in mobile apps are also more likely to be 
interconnected, such that updates to some content may affect the 
conformance of other content in unexpected ways, including in ways that 
may lead to technical nonconformance without affecting the user 
experience for individuals with disabilities. Thus, to maintain perfect 
conformance, it would not necessarily be sufficient for recipients to 
confirm the conformance of their new content; they would also need to 
ensure that any updates do not affect the conformance of existing 
content. The same kind of challenge is unlikely to occur in physical 
spaces.
    Second, some commenters raised concerns about the litigation risk 
that requiring perfect conformance to WCAG 2.1 Level AA would pose. 
Commenters feared being subjected to a flood of legal claims based on 
any failure to conform to the technical standard, however minor, and 
regardless of the impact--or lack thereof--the nonconformance has on 
accessibility. Commenters agreed with the Department's suggestion that 
due to the dynamic, complex, and interconnected nature of web content 
and mobile apps, a recipient's web content and mobile apps may be more 
likely to be out of conformance to WCAG 2.1 Level AA than its buildings 
are to be out of compliance with the ADA Standards, leading to 
increased legal risk. Some commenters even stated that 100 percent 
conformance to WCAG 2.1 Level AA would be unattainable or impossible to 
maintain. Commenters also agreed with the Department's understanding 
that the prevalence of automated web accessibility testing could enable 
any individual to find evidence of nonconformance to WCAG 2.1 Level AA 
even where that individual has not experienced any impact on access and 
the nonconformance would not affect others' access, with the result 
that identifying instances of merely technical nonconformance to WCAG 
2.1 Level AA is likely much easier than identifying merely technical 
noncompliance with the ADA Standards. Based on the comments it 
received, the Department believes that if it does not implement a 
tailored approach to compliance under this rule, the burden of 
litigation under this subpart could become particularly challenging for 
recipients, enforcement agencies, and the courts. Though many comments 
about litigation risk came from recipients, commenters from some 
disability advocacy organizations agreed that the rule should not 
encourage litigation about issues that do not affect a person with a 
disability's ability to equally use and benefit from a website or 
mobile app, and that liability should be limited.
    The Department does not agree that allowing minor deviations from 
the technical standard that have minimal impact on access would be too 
complicated and untenable. Simply because this approach may require 
more steps to assess compliance than checking whether a website has 
satisfied 100% of the WCAG 2.1 Level AA success criteria does not mean 
this approach is not worthwhile or feasible. As discussed further, the 
Department believes that the final version of Sec.  84.89 is tenable 
and will help ensure the full and equal access to which individuals 
with disabilities are entitled while allowing some flexibility for 
recipients if nonconformance with WCAG 2.1 Level AA is so minimal as to 
not affect use of the recipient's web content or mobile app.
    Comment: Commenters advanced a variety of opinions on what is 
sufficient evidence of noncompliance with the proposed technical 
standard. Many commenters stated that any enforcement method should not 
solely rely on automated software used to check compliance with web 
content, but if automated checkers are used, any violations should be 
confirmed by a human being. Automated checkers may result in false 
positives or minor variations that do not affect access, leading to a 
flood of legal actions. Some commenters stated that a determination of 
noncompliance should only be made when there is a deviation from WCAG 
2.1 Level AA and the deviation negatively impacts the ability of a 
person with a disability to use the web content in question. Some 
commenters stated that a deviation from WCAG 2.1 Level AA should only 
be a violation if the deviation is inherent to the web content itself, 
is widely prevalent, or there is no evidence of institutional 
development in response to the deviation. One commenter summed up their 
opinion by stating ``the true measure of compliance is whether a person 
with a disability who needs access to a service can actually access it 
or not.''
    Response: The Department agrees that the method for measuring 
compliance must take into consideration whether the deviation from the 
WCAG 2.1 Level AA success criteria impacts an individual with a 
disability's access to the web content in question.
    Comment: Comments on whether a numerical percentage should be used 
to measure compliance agreed that such a

[[Page 40159]]

measure of compliance would be arbitrary and not ensure that people 
with disabilities are able to access web content. Some commenters 
stated that it would be difficult, if not impossible, for larger 
recipients to ensure 100% technical compliance at all times.
    Response: The Department considered requiring a certain numerical 
percentage of conformance with the technical standard and declines to 
take this approach. The Department concluded that approach would be 
unlikely to ensure access. Even if only a very small percentage of 
content does not conform with the technical standard, that could still 
block an individual with a disability from accessing a program or 
activity. For example, even if there was only one instance of 
nonconformance, that single error could prevent an individual with a 
disability from submitting an application for benefits. As such, the 
Department continues to believe that a percentage-based approach would 
not be sufficient to advance this rule's objective to ensure equal 
access to recipients' web content and mobile apps.
    Comment: Some commenters expressed the view that a recipient's 
policies and practices should be considered when determining compliance 
with subpart I. Some of these commenters stated that policies for 
receiving feedback, automated and manual testing, and remediation along 
a set schedule should all be taken into account. Other commenters 
stated that actual conformance to WCAG 2.1 Level AA, not whether a 
recipient has policies in place, should determine compliance, but 
policies could be used when determining enforcement or remediation 
requirements following a violation. Some commenters thought that 
policies should require automated testing, some thought policies should 
require manual testing, and still others thought policies should 
require both.
    Response: The Department appreciates the comments on recipient 
policies and practices concerning web and mobile accessibility. The 
Department declines to adopt a policy-based approach because there is 
not a sufficient rationale that would justify adopting any specific set 
of accessibility policies in this generally applicable rule. There was 
no consensus among commenters about what policies would be sufficient, 
and most commenters did not articulate a specific basis supporting why 
their preferred policies were more appropriate than any other policies. 
In the absence of more specific rationales or a clearer consensus among 
commenters or experts in the field about what policies would be 
sufficient, the Department does not believe it is appropriate to 
prescribe what specific accessibility testing and remediation policies 
all recipients must adopt to comply with their obligations under this 
rule. Based on the information available to the Department at this 
time, the Department's adoption of any such specific policies would be 
unsupported by sufficient evidence that these policies will ensure 
accessibility, which could cause significant harm. It would allow 
recipients to comply with their legal obligations under this rule based 
on policies alone, even though those policies may fail to provide equal 
access to online programs or activities.
    The Department also declines to adopt a policy-based approach that 
would rely on the type of general, flexible policies, in which the 
sufficiency of recipients' policies would vary depending on the factual 
circumstances. The Department does not believe that such an approach 
would give individuals with disabilities sufficient certainty about 
what policies and access they could expect. Such an approach would also 
fail to give recipients sufficient certainty about how they should meet 
their legal obligations under this rule. If it adopted a flexible 
approach, the Department might not advance the current state of the 
law, because every recipient could choose any accessibility testing and 
remediation policies it believed would be sufficient to meet its 
general obligations, without conforming to the technical standard or 
ensuring access.
    The Department agrees that while it may be useful to know a 
recipient's policies and practices when investigating alleged 
violations of this subpart, the ultimate goal is accessibility as 
defined by the subpart. The Office for Civil Rights (OCR) is 
responsible for investigating allegations that recipients have violated 
section 504 and typically reviews recipients' policies and procedures 
as part of an investigation. OCR will review policies, such as policies 
that address feedback, testing, and timely remediation, when 
determining resolutions of violations or instances where recipients 
agree to come into voluntary compliance.
    Although the final rule does not specifically require manual 
testing by people with disabilities, because requiring such testing 
could pose logistical or other hurdles, the Department recommends that 
recipients seek and incorporate feedback from people with disabilities 
on their web content and mobile apps. Doing so will help ensure that 
everyone has access to critical government services.
    Comment: Commenters were divided on whether a recipient should be 
deemed to be compliant with subpart I if it remediates errors within a 
set time period. Some commenters stated that the compliance date for 
WCAG 2.1 Level AA is when the rule goes into effect for the recipient 
and that any question of remediation is appropriately addressed in the 
enforcement process. Some commenters support allowing for remediation 
in a set time period, ranging from three days to months. Some 
commenters endorsed shorter remediation time periods for recipients 
with multiple violations or deviations from WCAG 2.1 AA.
    Response: The Department agrees that the date for recipient web 
content and mobile applications to comply with WCAG 2.1 Level AA is 
stated in the proposed rule as either two or three years after the 
final rule's publication date depending on the size of the recipient. 
However, the Department is not adopting a framework where a recipient 
has a certain period of time to remediate inaccessibility issues before 
the recipient could be considered out of compliance with the rule. The 
Department believes that adopting this approach would undermine a core 
premise of the rule, which is that web content and mobile apps will 
generally be accessible by default. Under section 504, individuals with 
disabilities cannot be, by reason of such disability, excluded from 
participation in or denied the benefits of recipients' programs or 
activities, including those offered via the web and mobile apps.\193\ 
Accordingly, it is important for individuals with disabilities to have 
access to the same platforms as their neighbors and friends at the same 
time, and the commenters' proposal would not achieve that objective. 
With this rule, the Department is ensuring that people with 
disabilities generally will not have to request access to recipients' 
web content and content in mobile apps, nor will they typically need to 
wait to obtain that access. Given recipients' existing obligations 
under section 504, recipients should already be on notice of their 
general obligations. If they are not, this rule unquestionably puts 
them on notice.
---------------------------------------------------------------------------

    \193\ 29 U.S.C. 794(a).
---------------------------------------------------------------------------

    Comment: Most of the commenters opposed different compliance 
measures for new versus preexisting content. Almost all stated that 
policing content based on its publication date would be too complicated 
and that the proposed compliance dates of two or three years are 
sufficient for all content.

[[Page 40160]]

    Response: The Department agrees that the two- or three-year 
compliance periods are sufficient for recipients to make their existing 
web content and mobile apps accessible while preparing to make new web 
content and mobile apps accessible, especially given the exception for 
archived web content under Sec.  84.85(a).
    Comment: Most of the comments on organizational maturity as a 
method for measuring compliance took the position that it should not be 
used. Specifically, those commenters stated that there is no direct 
correlation between a recipient's organizational maturity and its 
future compliance to WCAG 2.1 AA. One commenter stated that some 
organizations deemed ``mature'' post inaccessible content while some 
organizations not deemed ``mature'' post accessible content. Some 
commenters voiced general support for using organizational maturity as 
it would be a relatively simple method for the Department to enforce. 
Some commenters also expressed misunderstandings concerning 
organizational maturity, which suggests that an organizational maturity 
model would be confusing to the public if adopted.
    Response: There are many ways to measure organizational maturity, 
and it is not clear to the Department that one organizational maturity 
model is more appropriate or more effective than any other. The 
Department therefore declines to adopt an organizational maturity 
approach in this final rule because any organizational maturity model 
for compliance with web accessibility that the Department could develop 
or incorporate would not have sufficient justification based on the 
facts available to the Department at this time. As with the policy-
based approach discussed above, if the Department were to allow 
recipients to define their own organizational maturity approach instead 
of adopting one specific model, this would not provide sufficient 
predictability or certainty for people with disabilities or recipients.
    Also, like the policy-based approach discussed above, if the 
Department were to adopt an organizational maturity approach that was 
not sufficiently rigorous, recipients would be able to comply this rule 
without providing equal access. This would undermine the purpose of the 
rulemaking.
    Comment: Many of the commenters agreed that the Department should 
limit compliance obligations if deviation from a specific WCAG 2.1 AA 
success criteria does not limit access of a person with a disability. 
Specifically, some commenters stated that a recipient should not be 
deemed in violation of subpart I if people with disabilities are able 
to access their web content and mobile apps. Some commenters stated 
that the Department should prioritize the usability of the web content 
and actual functional barriers instead of focusing only on technical 
violations of WCAG 2.1 Level AA. Many commenters supported a functional 
definition of accessibility that would effectively allow for minor 
deviations from the technical standard as long as they do not impact 
the ability of people with disabilities to access and benefit from the 
web content in question. Some commenters specified that the ability to 
access and benefit from the web content in question also requires 
consideration of the timeliness, privacy, and independence in accessing 
the web content. This method would also result in the possibility that 
recipients could be in violation of subpart I if any aspect of their 
program or activity provided through web content is inaccessible to a 
person with a disability, even if the recipient is fully compliant with 
WCAG 2.1 AA. Some commenters stated that all information posted on a 
recipient's web content is important so all information, regardless of 
whether it limits access to a recipient's program or activity, should 
be accessible. Some commenters oppose this method of measuring 
compliance because they believe it would be too difficult to enforce.
    Response: The Department has considered these comments and believes 
a recipient should be able to meet its requirements under this rule 
even if the recipient's web content or mobile app does not perfectly 
conform to the technical standard set forth in Sec.  84.84.
    Accordingly, this final rule adopts Sec.  84.89, which describes a 
particular, limited circumstance in which a recipient ``will be deemed 
to have met'' the requirements of Sec.  84.84 even though the 
recipient's web content or mobile app does not perfectly conform to the 
technical standard set forth in Sec.  84.84(b). Section 84.89 will 
apply if the recipient can demonstrate that, although it was 
technically out of conformance to WCAG 2.1 Level AA, (i.e., fails to 
exactly satisfy a success criterion or conformance requirement), the 
nonconformance has a minimal impact on access for individuals with 
disabilities, as defined in the regulatory text. If a recipient can 
make this showing, it will be deemed to have met its obligations under 
Sec.  84.84 despite its nonconformance to WCAG 2.1 Level AA.
    Section 84.89 does not alter a recipient's general obligations 
under this rule, nor is it intended as a blanket justification for a 
recipient to avoid conforming to WCAG 2.1 Level AA from the outset. 
Rather, Sec.  84.89 is intended to apply in rare circumstances and will 
require a detailed analysis of the specific facts surrounding the 
impact of each alleged instance of nonconformance. The Department does 
not expect or intend that Sec.  84.89 will excuse most nonconformance 
to the technical standard. Under Sec.  84.84(b), a recipient must 
typically ensure that the web content and mobile apps it ``provides or 
makes available, directly or through contractual, licensing, or other 
arrangements, comply with Level A and Level AA success criteria and 
conformance requirements specified in WCAG 2.1.'' This remains 
generally true. However, Sec.  84.89 allows for some minor deviations 
from WCAG 2.1 Level AA if specific conditions are met. This will 
provide a recipient that discovers that it is out of compliance with 
this rule with another means to avoid the potential liability that 
could result. Recipients that maintain conformance to WCAG 2.1 Level AA 
will not have to rely on Sec.  84.89 to be deemed compliant with this 
rule, and full conformance to WCAG 2.1 Level AA is the only definitive 
way to guarantee that outcome. However, if a recipient falls out of 
conformance in a minimal way or such nonconformance is alleged, a 
recipient may be able to use Sec.  84.89 to demonstrate that it has 
satisfied its legal obligations. Section 84.89 also does not alter 
existing enforcement mechanisms. Individuals can file complaints, and 
agencies can conduct investigations and compliance reviews, related to 
this rule the same way they would for any other requirement under 
section 504.
    As the text of the provision indicates, the burden of demonstrating 
applicability of Sec.  84.89 is on the recipient. The provision will 
only apply ``in the limited circumstance in which the recipient can 
demonstrate'' that all of the criteria described in Sec.  84.89 are 
satisfied. This section requires the recipient to show that its 
nonconformance to WCAG 2.1 Level AA ``has such a minimal impact on 
access that it would not affect the ability of individuals with 
disabilities to use the recipient's web content or mobile app'' to do 
one of the activities enumerated in paragraphs (a) through (d) of Sec.  
84.89 in the manner described in Sec.  84.89. If the nonconformance has 
affected an individual in the ways outlined in Sec.  84.89 (further 
described below), the recipient will not be able to rely on this

[[Page 40161]]

provision. Further, as ``demonstrate'' indicates, the recipient must 
provide evidence that all of the criteria described in Sec.  84.89 are 
satisfied in order to substantiate its reliance on this provision. 
While Sec.  84.89 does not require a particular type of evidence, a 
recipient needs to show that, as the text states, its nonconformance 
``would not affect'' the experience of individuals with disabilities as 
outlined below. Therefore, it would not be sufficient for a recipient 
to show only that it has not received any complaints regarding the 
nonconformance; nor would it likely be enough if the recipient only 
pointed to a few particular individuals with disabilities who were 
unaffected by the nonconformance. The recipient must show that the 
nonconformance is of a nature that would not affect people whose 
disabilities are pertinent to the nonconformance at issue, just as the 
analysis under other parts of section 504 regulations depends on the 
barrier at issue and the access needs of individuals with disabilities 
pertinent to that barrier.\194\ For example, people with hearing or 
auditory processing disabilities, among others, have disabilities 
pertinent to captioning requirements.
---------------------------------------------------------------------------

    \194\ Cf., e.g., 45 CFR 84.68(b)(1)(iv), (b)(8), 84.77.
---------------------------------------------------------------------------

    With respect to the particular criteria that a recipient must 
satisfy, Sec.  84.89 describes both what people with disabilities must 
be able to use the recipient's web content or mobile apps to do and the 
manner in which people with disabilities must be able to do it. 
Nonconformance to WCAG 2.1 Level AA must not ``affect the ability of 
individuals with disabilities to use the recipient's web content or 
mobile app . . . in a manner that provides substantially equivalent 
timeliness, privacy, independence, and ease of use'' compared to 
individuals without disabilities. Timeliness, privacy, independence, 
and ease of use are underscored throughout the ADA framework, as well 
as elsewhere in this rule under section 504, as key components of 
ensuring equal opportunity for individuals with disabilities to 
participate in or benefit from a recipient's programs and activities, 
and ``ease of use'' is intended to broadly encompass other aspects of a 
user's experience with web content or mobile apps. To successfully rely 
on Sec.  84.89, it would not be sufficient for a recipient to 
demonstrate merely that its nonconformance would not completely block 
people with disabilities from using web content or a mobile app as 
described in Sec.  84.89(a) through (d). That is, the term ``would not 
affect'' should not be read in isolation from the rest of Sec.  84.89 
to suggest that a recipient only needs to show that a particular 
objective can be achieved. Rather, a recipient must also demonstrate 
that, even though the web content or mobile app does not conform to the 
technical standard, the user experience for individuals with 
disabilities is substantially equivalent to the experience of 
individuals without disabilities.
    For example, if a recipient's online health questionnaire does not 
conform to WCAG 2.1 Level AA, a person with a manual dexterity 
disability may need to spend significantly more time to fill out a 
health questionnaire online than someone without a disability. This 
person might also need to seek assistance from someone who does not 
have a disability, provide personal information to someone else, or 
endure a much more cumbersome and frustrating process than a user 
without a disability. Even if this person with a disability was 
ultimately able to fill out the form online, Sec.  84.89 would not 
apply because, under these circumstances, their ability to use the web 
content ``in a manner that provides substantially equivalent 
timeliness, privacy, independence, and ease of use'' would be affected. 
Analysis under this provision is likely to be a fact-intensive 
analysis. Of course, a recipient is not responsible for every factor 
that might make a task more time-consuming or difficult for a person 
with a disability. However, a recipient is responsible for the impact 
of its nonconformance to the technical standard set forth in this rule. 
The recipient must show that its nonconformance would not affect the 
ability of individuals with pertinent disabilities to use the web 
content or mobile app in a manner that provides substantially 
equivalent timeliness, privacy, independence, and ease of use.
    Paragraphs (a) through (d) of Sec.  84.89 describe what people with 
disabilities must be able to use the recipient's web content or mobile 
apps to do ``in a manner that [is] substantially equivalent [as to] 
timeliness, privacy, independence, and ease of use.'' First, under 
Sec.  84.89(a), individuals with disabilities must be able to 
``[a]ccess the same information as individuals without disabilities.'' 
This means that people with disabilities can access all the same 
information using the web content or mobile app that users without 
disabilities are able to access. For example, Sec.  84.89(a) would not 
be satisfied if certain web content could not be accessed using a 
keyboard because the content was coded in a way that caused the 
keyboard to skip over some content. In this example, an individual who 
relies on a screen reader would not be able to access the same 
information as an individual without a disability because all of the 
information could not be selected with their keyboard so that it would 
be read aloud by their screen reader. However, Sec.  84.89(a) might be 
satisfied if the color contrast ratio for some sections of text is 
4.45:1 instead of 4.5:1 as required by WCAG 2.1 Success Criterion 
1.4.3.\195\ Similarly, this provision might apply, for example, if the 
spacing between English words is only 0.15 times the font size instead 
of 0.16 times as required by WCAG 2.1 Success Criterion 1.4.12.\196\ 
Such slight deviations from the specified requirements are unlikely to 
affect the ability of, for example, most people with vision 
disabilities to access information that they would be able to access if 
the content fully conformed with the technical standard. However, the 
recipient must always demonstrate that this element is met with respect 
to the specific facts of the nonconformance at issue.
---------------------------------------------------------------------------

    \195\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 1.4.3 Contrast (Minimum) (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#contrast-minimum [https://perma.cc/4XS3-AX7W].
    \196\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 1.4.12 Text Spacing (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#text-spacing [https://perma.cc/B4A5-843F].
---------------------------------------------------------------------------

    Second, Sec.  84.89(b) states that individuals with disabilities 
must be able to ``[e]ngage in the same interactions as individuals 
without disabilities.'' This means that people with disabilities can 
interact with the web content or mobile app in all of the same ways 
that people without disabilities can. For example, Sec.  84.89(b) would 
not be satisfied if people with disabilities could not interact with 
all of the different components of the web content or mobile app, such 
as chat functionality, messaging, calculators, calendars, and search 
functions. However, Sec.  84.89(b) might be satisfied if the time limit 
for an interaction, such as a chat response, expires at exactly 20 
hours, even though Success Criterion 2.2.1,\197\ which generally 
requires certain safeguards to prevent time limits from expiring, has 
an exception that only applies if the time limit is longer than 20 
hours. People with certain types of disabilities, such as cognitive 
disabilities, may need more time than people without disabilities to 
engage in interactions. A slight deviation in

[[Page 40162]]

timing, especially when the time limit is long and the intended 
interaction is brief, is unlikely to affect the ability of people with 
these types of disabilities to engage in interactions. Still, the 
recipient must always demonstrate that this element is met with respect 
to the specific facts of the nonconformance at issue.
---------------------------------------------------------------------------

    \197\ See W3C, Web Content Accessibility Guidelines (WCAG) 2.1, 
Success Criterion 2.2.1 Timing Adjustable (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#timing-adjustable [https://perma.cc/V3XZ-KJDG].
---------------------------------------------------------------------------

    Third, pursuant to Sec.  84.89(c), individuals with disabilities 
must be able to ``[c]onduct the same transactions as individuals 
without disabilities.'' This means that people with disabilities can 
complete all of the same transactions on the web content or mobile app 
that people without disabilities can. For example, Sec.  84.89(c) would 
not be satisfied if people with disabilities could not submit a form or 
process their payment. However, Sec.  84.89(c) would likely be 
satisfied if web content does not conform to Success Criterion 4.1.1 
about parsing. This Success Criterion requires that information is 
coded properly so that technology like browsers and screen readers can 
accurately interpret the content and, for instance, deliver that 
content to a user correctly so that they can complete a transaction, or 
avoid crashing in the middle of the transaction.\198\ However, 
according to W3C, this Success Criterion is no longer needed to ensure 
accessibility because of improvements in browsers and assistive 
technology.\199\ Thus, although conformance to this Success Criterion 
is required by WCAG 2.1 Level AA, a failure to conform to this Success 
Criterion is unlikely to affect the ability of people with disabilities 
to conduct transactions. However, the recipient must always demonstrate 
that this element is met with respect to the specific facts of the 
nonconformance at issue.
---------------------------------------------------------------------------

    \198\ W3C, Understanding SC 4.1.1: Parsing (Level A), https://www.w3.org/WAI/WCAG21/Understanding/parsing.html [https://perma.cc/5Z8Q-GW5E] (June 20, 2023).
    \199\ W3C, WCAG 2 FAQ (Oct. 5, 2023), https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/7Q9H-JVSZ]. W3C, WCAG 2 FAQ (Oct. 5, 2023), https://www.w3.org/WAI/standards-guidelines/wcag/faq/#parsing411 [https://perma.cc/7Q9H-JVSZ].
---------------------------------------------------------------------------

    Fourth, Sec.  84.89(d) requires that individuals with disabilities 
must be able to ``[o]therwise participate in or benefit from the same 
programs and activities as individuals without disabilities.'' Section 
84.89(d) is intended to address anything else within the scope of 
section 504 (i.e., any program or activity that cannot fairly be 
characterized as accessing information, engaging in an interaction, or 
conducting a transaction) for which someone who does not have a 
disability could use the recipient's web content or mobile app. Section 
84.89(d) should be construed broadly to ensure that the ability of 
individuals with disabilities to access or use any part of the 
recipient's web content or mobile app that individuals without 
disabilities are able to access or use is not affected by 
nonconformance to the technical standard.
    The Department believes this framework is generally consistent with 
the framework of title II of the ADA, with which many recipients will 
be familiar, as well as the approach reflected in the Department's 
revisions and additions in Sec. Sec.  84.68 and 84.77 of this final 
rule to ensure consistency between section 504 and title II of the ADA. 
Title II similarly requires covered entities to provide equal 
opportunity to participate in or benefit from services; \200\ equal 
opportunity to obtain the same result; \201\ full and equal enjoyment 
of services, programs, and activities; \202\ and communications with 
people with disabilities that are as effective as communications with 
others, which includes consideration of timeliness, privacy, and 
independence.\203\
---------------------------------------------------------------------------

    \200\ 28 CFR 35.130(b)(1)(ii), 35.160(b)(1).
    \201\ 28 CFR 35.130(b)(1)(iii).
    \202\ 28 CFR 35.130(b)(8).
    \203\ 28 CFR 35.160.
---------------------------------------------------------------------------

    The regulatory language codified in Sec.  84.89 is very similar to 
language discussed in the NPRM's preamble.\204\ However, the Department 
believes it is helpful to explain differences between that discussion 
in the NPRM and this final rule. The Department has only made three 
substantive changes to the NPRM's relevant language.
---------------------------------------------------------------------------

    \204\ 88 FR 63392, 63447 (Sept. 14, 2023).
---------------------------------------------------------------------------

    First, though the NPRM discussed excusing noncompliance that ``does 
not prevent'' equal access, Sec.  84.89 excuses noncompliance that 
``would not affect'' such access. The Department was concerned that the 
use of ``does not'' could have been incorrectly read to require a 
showing that a specific individual did not have substantially 
equivalent access to the web content or mobile app. In changing the 
language to ``would not,'' the Department clarifies that the threshold 
requirements for bringing a challenge to compliance under this subpart 
are the same as under any other provision of section 504. Except as 
otherwise required by existing law, a rebuttal of a recipient's 
invocation of this provision would not need to show that a specific 
individual did not have substantially equivalent access to the web 
content or mobile app. Rather, the issue would be whether the 
nonconformance is the type of barrier that would affect the ability of 
people with pertinent disabilities to access the web content or mobile 
app in a substantially equivalent manner. Certainly, the revised 
standard would encompass a barrier that actually does affect a specific 
individual's access, so this revision does not narrow the provision.
    Second, the Department originally proposed considering whether 
nonconformance ``prevent[s] a person with a disability'' from using the 
web content or mobile app, but Sec.  84.89 instead considers whether 
nonconformance would ``affect the ability of individuals with 
disabilities'' to use the web content or mobile app. This revision is 
intended to clarify what a recipient seeking to invoke this provision 
needs to demonstrate. The Department explained in the NPRM that the 
purpose of this approach was to ``provide equal access to people with 
disabilities,'' and limit violations to those that ``affect access.'' 
\205\ But even when not entirely ``prevent[ed]'' from using web content 
or mobile app, an individual with disabilities can still be denied 
equal access by impediments falling short of that standard. The 
language in the final rule more accurately reflects this reality and 
achieves the objective proposed in the NPRM. As explained above, under 
the language in the final rule it would not be sufficient for a 
recipient to show that its nonconformance would still permit people 
with disabilities to use the recipient's web content or mobile app as 
described in Sec.  84.89(a) through (d). In other words, someone would 
not need to be entirely prevented from using the web content or mobile 
app before a recipient could be considered out of compliance. Instead, 
the effect of the nonconformance must be considered. This does not mean 
that any effect on usability, however slight, is sufficient to prove a 
violation. Only nonconformance that would affect the ability of 
individuals with disabilities to do the activities in Sec.  84.89(a) 
through (d) in a way that provides substantially equivalent timeliness, 
privacy, independence, and ease of use would prevent a recipient from 
relying on this provision.
---------------------------------------------------------------------------

    \205\ Id.
---------------------------------------------------------------------------

    Third, the language proposed in the NPRM considered whether a 
person with a disability would have substantially equivalent ``ease of 
use.'' The Department believed that timeliness, privacy, and 
independence were all components that affected

[[Page 40163]]

whether ease of use was substantially equivalent. Because some 
commenters proposed explicitly specifying these factors in addition to 
``ease of use,'' the Department is persuaded that these factors warrant 
separate inclusion and emphasis as aspects of the user experience that 
must be substantially equivalent. This specificity ensures clarity for 
recipients, individuals with disabilities, Federal agencies, and courts 
about how to analyze an entity's invocation of this provision. 
Therefore, the Department has added additional language to clarify that 
timeliness, privacy, and independence are all important concepts to 
consider when evaluating whether this provision applies. If a person 
with a disability would need to take significantly more time to 
successfully navigate web content or a mobile app that does not conform 
to the technical standard because of the content or app's 
nonconformance, that person is not being provided with a substantially 
equivalent experience to that of people without disabilities. Requiring 
a person with a disability to spend substantially more time to do 
something is placing an additional burden on them that is not imposed 
on others. Privacy and independence are also crucial components that 
can affect whether a person with a disability would be prevented from 
having a substantially equivalent experience. Adding this language to 
Sec.  84.89 ensures consistency with the effective communication 
provision of section 504.\206\ The Department has included timeliness, 
privacy, and independence in this provision for clarity and to avoid 
unintentionally narrowing what should be a fact-intensive analysis. 
However, ``ease of use'' may also encompass other aspects of a user's 
experience that are not expressly specified in the regulatory text, 
such as safety risks incurred by people with disabilities as a result 
of nonconformance.\207\ ``Ease of use'' should be construed broadly to 
allow for consideration of other ways in which nonconformance would 
make the experience of users with disabilities more difficult or 
burdensome than the experience of users without disabilities in 
specific scenarios.
---------------------------------------------------------------------------

    \206\ 45 CFR 84.77.
    \207\ See, e.g., W3C, Web Content Accessibility Guidelines 
(WCAG) 2.1, Success Criterion 2.3.1. Three Flashes or Below 
Threshold (June 5, 2018), https://www.w3.org/TR/2018/REC-WCAG21-20180605/#three-flashes-or-below-threshold [https://perma.cc/A7P9-WCQY] (addressing aspects of content design that could trigger 
seizures or other physical reactions).
---------------------------------------------------------------------------

    Regarding comments that recommended a two-part method of measuring 
compliance that includes a functional definition of accessibility in 
addition to WCAG requirements, the Department is concerned about 
imposing additional requirements on recipients. A major benefit of 
requiring conformance to WCAG 2.1 Level AA is that if a recipient's web 
content and mobile apps fully conform to it, the recipient can be 
certain that they are compliant with Sec.  84.84. Adding a functional 
accessibility standard beyond WCAG would result in situations where 
even if a recipient is 100% in compliance with WCAG 2.1 AA, they may 
still be in violation of subpart I if a single person with a disability 
is unable to access some portion of their web content or mobile app. 
This lack of certainty would prove difficult for recipients and result 
in confusion throughout health and human services programs and 
activities.
    Comment: Some commenters expressed the view that not all instances 
of nonconformance to WCAG 2.1 Level AA should be treated equally. Some 
stated that there should be higher consequences based on how frequently 
accessed the content is, how egregious the violation is, and whether an 
issue is inherently more serious.
    Response: The Department will investigate all alleged violations of 
section 504, including alleged nonconformance to WCAG 2.1 Level AA. 
During the investigation process, the Department may choose to pursue 
different methods of investigation and remedies depending on the 
specifics of the alleged violation, including the impact on people with 
disabilities and the importance of the content in question.
    Comment: Some commenters stated that isolated or temporary 
instances of nonconformance to WCAG 2.1 Level AA should generally not 
be treated as violations as long as the recipient in question is not a 
repeat offender, they notify the public of the issue, they remediate 
the issue in a set period of time, and the issue itself is small.
    Response: The Department has considered all of the comments it 
received on this issue and, based on the comments and its own 
independent assessment, decided not to separately excuse a recipient's 
isolated or temporary noncompliance with Sec.  84.84(b) due to 
maintenance or repairs in the final rule. Rather, as stated in Sec.  
84.89, a recipient's legal responsibility for an isolated or temporary 
instance of nonconformance to WCAG 2.1 Level AA will depend on whether 
the isolated or temporary instance of nonconformance--as with any other 
nonconformance--would affect the ability of individuals with 
disabilities to use the recipient's web content or mobile app in a 
substantially equivalent way.
    The Department believes it is likely that the approach set forth in 
Sec.  84.89 reduces the need for a provision that would explicitly 
allow for instances of isolated or temporary noncompliance due to 
maintenance or repairs, while simultaneously limiting the negative 
impact of such a provision on individuals with disabilities. The 
Department believes this is true for two reasons.
    First, to the extent isolated or temporary noncompliance due to 
maintenance or repairs occur that affect web content or mobile apps, it 
logically follows from the requirements in Sec.  84.84 that these 
interruptions should generally result in the same impact on individuals 
with and without disabilities after the compliance date because, in 
most cases, all users would be relying on the same content, and so 
interruptions to that content would impact all users. From the 
compliance date onward, accessible web content and mobile apps and the 
web content and mobile apps used by people without disabilities should 
be one and the same (with the rare exception of conforming alternate 
versions provided for in Sec.  84.86). Therefore, the Department 
expects that isolated or temporary noncompliance due to maintenance or 
repairs generally will affect the ability of people with disabilities 
to use web content or mobile apps to the same extent it will affect the 
experience of people without disabilities. For example, if a website is 
undergoing overnight maintenance and so an online form is temporarily 
unavailable, the form would already conform to WCAG 2.1 Level AA, and 
so there would be no separate feature or form for individuals with 
disabilities that would be affected while a form for people without 
disabilities is functioning. In such a scenario, individuals with and 
without disabilities would both be unable to access web content, such 
that there would be no violation of this rule.
    Thus, the Department believes that a specific provision regarding 
isolated or temporary noncompliance due to maintenance or repairs is 
less necessary than it is for physical access. When there is 
maintenance to a feature that provides physical access, such as a 
broken elevator, access for people with disabilities is particularly 
impacted. In contrast, when there is maintenance to web content or 
mobile apps, people with and without disabilities will generally both 
be denied access, such

[[Page 40164]]

that no one is denied access on the basis of disability.
    Second, even to the extent isolated or temporary noncompliance due 
to maintenance or repairs affects only an accessibility feature, that 
noncompliance may fit the parameters laid out in Sec.  84.89 such that 
a recipient will be deemed to have complied with its obligations under 
the rule. Section 84.89 does not provide a blanket limitation that 
would excuse all isolated or temporary noncompliance due to maintenance 
or repairs, however. The provision's applicability would depend on the 
particular circumstances of the interruption and its impact on people 
with disabilities. It is possible that an interruption that only 
affects an accessibility feature will not satisfy the elements of Sec.  
84.89 and a recipient will not be deemed in compliance with Sec.  
84.84. Even one temporary or isolated instance of nonconformance could 
affect the ability of individuals with disabilities to use the web 
content with substantially equivalent ease of use, depending on the 
circumstances. As discussed above, this will necessarily be a fact-
specific analysis.
    In addition to being less necessary than in the physical access 
context, the Department also believes a specific provision regarding 
isolated or temporary interruptions due to maintenance or repairs would 
have more detrimental incentives in the digital space by discouraging 
recipients from adopting practices that would reduce or avert the 
disruptions caused by maintenance and repair that affect accessibility. 
Isolated or temporary noncompliance due to maintenance or repairs of 
features that provide physical access would be necessary regardless of 
what practices recipients put in place,\208\ and the repairs and 
maintenance to those features often cannot be done without interrupting 
access specifically for individuals with disabilities. For example, 
curb ramps will need to be repaved and elevators will need to be 
repaired because physical materials break down. In contrast, the 
Department believes that, despite the dynamic nature of web content and 
mobile apps, incorporating accessible design principles and best 
practices will generally enable recipients to anticipate and avoid many 
instances of isolated or temporary noncompliance due to maintenance or 
repairs--including many isolated or temporary instances of 
noncompliance that would have such a significant impact that they would 
affect people with disabilities' ability to use web content or mobile 
apps in a substantially equivalent way. Some of these best practices, 
such as regular accessibility testing and remediation, would likely be 
needed for recipients to comply with subpart I regardless of whether 
the Department incorporated a provision regarding isolated or temporary 
interruptions. And practices like testing content before it is made 
available will frequently allow maintenance and repairs that affect 
accessibility to occur without interrupting access, in a way that is 
often impossible in physical spaces. The Department declines to adopt a 
limitation for isolated or temporary interruptions due to maintenance 
or repairs. Such a limitation may disincentivize recipients from 
implementing processes that could prevent many interruptions from 
affecting substantially equivalent access.
---------------------------------------------------------------------------

    \208\ See 28 CFR part 35, appendix B at 705 (``It is, of course, 
impossible to guarantee that mechanical devices will never fail to 
operate.'')
---------------------------------------------------------------------------

    Comment: Commenters mentioned specific laws or policies used by 
States, including California and Texas, which require covered entities 
to post certification of their sites' accessibility and submit to 
testing by the state comptroller, respectively. Some commenters pointed 
to different technical standards instead.
    Response: The Department has considered many States' approaches to 
assessing compliance with their web accessibility laws \209\ and 
declines to adopt these laws at the Federal level. State laws like 
those in Florida, Illinois, and Massachusetts, which do not specify how 
compliance will be measured or how entities can demonstrate compliance, 
are essentially requiring 100 percent compliance with a technical 
standard. This approach is not feasible for the reasons discussed 
earlier in this section. In addition, this approach is not feasible 
because of the large number and wide variety of recipients covered by 
section 504, as compared with the relatively limited number of State 
agencies in a given State. Laws like California's, which require 
entities covered by California's law to certify or post evidence of 
compliance, would impose administrative burdens on recipients similar 
to those imposed by the international approaches discussed below. Some 
State agencies, including in California, Minnesota, and Texas, have 
developed assessment checklists, trainings, testing tools, and other 
resources. The Department may also provide further guidance about best 
practices for a recipient to meet its obligations under this rule. 
However, such resources are not substitutes for clear and achievable 
regulatory requirements. Some commenters stated that regulations should 
not be combined with best practices or guidance, and further stated 
that testing methodologies are more appropriate for guidance. The 
Department agrees and believes recipients are best suited to determine 
how they will comply with the technical standard, depending on their 
needs and resources.
---------------------------------------------------------------------------

    \209\ 88 FR 63392, 63445-46 (Sept. 14, 2023).
---------------------------------------------------------------------------

    The Department also declines to adopt a model like the one used in 
Texas, which requires State agencies to, among other steps, conduct 
tests with one or more accessibility validation tools, establish an 
accessibility policy that includes criteria for compliance monitoring 
and a plan for remediation of noncompliant items, and establish goals 
and progress measurements for accessibility.\210\ This approach is one 
way recipients may choose to ensure that they comply with this rule. 
However, as noted above when discussing the policy-based approach, the 
Department is unable to calibrate requirements that provide sufficient 
predictability and certainty for every recipient while maintaining 
sufficient flexibility. The Department declines to adopt an approach 
like Texas's for the same reasons it declined to adopt a policy-based 
approach.
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    \210\ 1 Tex. Admin. Code 206.50, 213.21; Tex. Dep't of Info. 
Res., EIR Accessibility Tools & Training, https://dir.texas.gov/electronic-information-resources-eir-accessibility/eir-accessibility-tools-training [https://perma.cc/A5LC-ZTST].
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    The Department has also determined that other specific 
international approaches to evaluating compliance with web 
accessibility laws are currently not feasible to adopt in the United 
States.\211\ The methodologies used by the European Union and Canada 
require reporting to government agencies.\212\ This would pose 
counterproductive logistical and administrative difficulties for 
recipients and the Department. The Department believes that the 
resources recipients would need to spend on data collection and 
reporting would detract from efforts to increase the accessibility of 
web content and mobile apps. New

[[Page 40165]]

Zealand's approach,\213\ which requires testing and remediation, is 
similar to the policy-based approach already discussed in this section, 
and the Department declines to adopt that approach for the reasons 
stated above. The approach taken in the United Kingdom, where a 
government agency audits websites and mobile apps, sends a report to 
the entity, and requires the entity to fix accessibility issues,\214\ 
would raise similar logistical and administrative difficulties for 
recipients and the Department. Though the Department will continue to 
investigate complaints and enforce the section 504, given constraints 
on its resources and the large number of recipients within its purview 
to investigate, the Department is unable to guarantee that it will 
conduct a specific amount of enforcement under this rule on a 
particular schedule.
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    \211\ See 88 FR 51948, 51980 (Aug. 4, 2023) (explaining existing 
methods for measuring compliance in Canada, the European Union, New 
Zealand, and the United Kingdom).
    \212\ Commission Implementing Decision (EU) 2018/1524 (Dec. 10, 
2018), https://eurlex.europa.eu/eli/dec_impl/2018/1524/oj [https://perma.cc/5M7B-SVP9]; Government of Canada, Standard on Web 
Accessibility (Aug. 1, 2011), https://www.tbssct.gc.ca/pol/doc-eng.aspx?id=23601§ion=html [https://perma.cc/ZU5D-CPQ7].
    \213\ New Zealand Government, 2017 Web Standards Self-
Assessments Report (July 2018), https://www.digital.govt.nz/dmsdocument/97-2017-web-standards-self-assessments-report/html 
[https://perma.cc/3TQ3-2L9L]; New Zealand Government, Web Standards 
Risk Assessment (Oct. 19, 2020), https://www.digital.govt.nz/standardsand-guidance/nz-government-web-standards/riskassessment/ 
[https://perma.cc/N3GJ-VK7X]; New Zealand Government, About the Web 
Accessibility Standard (Mar. 3, 2022), https://www.digital.govt.nz/standards-and-guidance/nzgovernment-web-standards/web-accessibilitystandard-1-1/about-2/ [https://perma.cc/GPR4-QJ29].
    \214\ United Kingdom, Understanding accessibility requirements 
for public sector bodies (Aug. 22, 2022), https://www.gov.uk/guidance/accessibilityrequirements-for-public-sector-websites-and-apps; United Kingdom, Public sector website and mobile application 
accessibility monitoring (Nov. 1, 2022), https://www.gov.uk/guidance/public-sector-websiteand-mobile-application-accessibility-monitoring.
---------------------------------------------------------------------------

    Given the number of recipients, the wide range in their uses of web 
content and mobile apps, and the Department's existing compliance 
activities, such arrangements would not be logistically feasible for 
section 504. Laws that require 100% conformance to WCAG are not 
feasible for section 504 for the reasons mentioned above. Laws that 
establish a single accessibility policy would not allow the hundreds of 
thousands of HHS recipients sufficient flexibility to determine how to 
ensure their web content and mobile apps comply with section 504.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are editing Sec.  84.89 to formalize a method for 
measuring compliance. Specifically, we are finalizing a method of 
measuring compliance where a recipient that is not fully in compliance 
with Sec.  84.84(b) will be deemed to have met the requirements of 
Sec.  84.84 if the recipient can demonstrate that the noncompliance has 
a minimal impact on access. Whether the noncompliance has minimal 
impact on access depends on whether the noncompliance would not affect 
the ability of individuals with disabilities to access the same 
information, engage in the same interactions, conduct the same 
transactions, and otherwise participate in or benefit from the same 
programs and activities with substantially equivalent timeliness, 
privacy, independence, and ease of use.

Accessible Medical Equipment (Subpart J)

    Subpart J addresses requirements related to providing accessible 
medical equipment for people with disabilities.
Application (Sec.  84.90)
    Proposed Sec.  84.90 stated that this subpart would apply to 
programs or activities that receive Federal Financial assistance and 
recipients that operate, or receive Federal financial assistance from 
the operation of, such programs or activities.
    We received no comments on Sec.  84.90.
Summary of Regulatory Changes
    The Department is finalizing Sec.  84.90 as proposed with no 
modifications.
Requirements for Medical Diagnostic Equipment (Sec.  84.91)
    Proposed Sec.  84.91 contained a general requirement that no 
individual with a disability shall be excluded from or denied the 
benefits of a program or activity of a recipient offered through MDE 
due to the inaccessibility of the recipient's MDE.
    The comments and our responses regarding Sec.  84.91 are set forth 
below.
    Comment: Almost all commenters supported requiring recipients to 
ensure the availability of accessible MDE for health equity and access 
to needed care for people with disabilities. A wide array of 
stakeholders including disability rights advocates and organizations, 
individuals with disabilities, civil rights, faith-based, and 
reproductive rights advocacy groups, as well as medical providers, 
researchers, State and local jurisdictions, and public health groups 
all expressed support for incorporating the Access Board's MDE 
standards into this section 504 regulation.
    Response: The Department agrees with commenters that accessible MDE 
is vital for health equity, person-centered care, and access to care 
for patients with disabilities. The support for providing accessible 
care comes from a variety of commenters and recipient groups including 
physicians, nurses, allied professions, hospital associations, medical 
suppliers, and others. As discussed in the preamble to our NPRM, 
researchers have demonstrated and documented that the scarcity of 
accessible MDE constitutes a significant barrier to access to care for 
patients with disabilities, resulting in a lack of preventative care 
and diagnostic exams, while contributing to poorer health outcomes and 
lower life expectancies. The Department hopes that implementation of 
this final rule will make a tangible difference.
    Comment: Many commenters described the importance of accessible MDE 
and provided firsthand accounts of instances where they were unable to 
receive health care or received substandard care because recipients did 
not utilize accessible exam tables, scales, radiological or other 
diagnostic equipment. Commenters recounted instances when they were 
unable to receive prostate exams, mammograms, or skin biopsies or when 
they received incomplete physical exams because they could not transfer 
to an exam table. Other commenters noted that they could not have their 
weight checked regularly because of the lack of an accessible weight 
scale resulting in an inability to document unexpected weight loss or 
to track a child's weight and growth over time. Some commenters 
described recipients' expectations that individuals with mobility 
disabilities would be accompanied by companions to physically transfer 
them onto MDE. Some disability advocacy groups shared representative 
accounts submitted by a number of people documenting the harms 
experienced by people with disabilities due to recipients who lacked 
accessible MDE.
    Response: The Department is aware of many instances where people 
with disabilities were denied access to needed care, subjected to 
demeaning situations, or received substandard care because recipients 
did not utilize accessible exam tables, weight scales, radiological, or 
other diagnostic equipment. OCR has taken action to enforce section 504 
as it applies to medical care. However, the lack of standards for 
accessible MDE before the Access Board completed its standards in early 
2017, the lack of scoping and rulemaking to make these standards 
enforceable for recipients, and modest voluntary adoption of accessible 
MDE by health care providers mean that these circumstances remain all 
too prevalent. This rulemaking and its effective date will be turning 
points in ensuring improved access to diagnostic services

[[Page 40166]]

for people with disabilities. Because many people with disabilities are 
unable to receive even basic health care services as a result of 
inaccessible exam tables and weight scales, and because many health 
care providers, including primary care physicians, use exam tables and 
weight scales and the equipment is relatively inexpensive compared to 
other accessible MDE such as imaging equipment, the Department decided 
to add a specific requirement for exam tables and weight scales at 
Sec.  84.92(c). At a minimum, recipients must acquire one accessible 
exam table, if they use exam tables, and one accessible weight scale, 
if they use weight scales, within two years. The Department decided on 
a two-year time period because it believes that is a sufficient period 
for most recipients to budget for and acquire accessible exam tables 
and weight scales. Some commenters were concerned that two years would 
be too long considering the availability and affordability of 
accessible exam tables and weight scales measured against the negative 
health outcomes experienced by people with disabilities when waiting 
for recipients to acquire accessible MDE, but the Department recognizes 
recipients will need some time to acquire accessible exam tables and 
weight scales. This requirement will help address the specific denials 
of service raised by commenters relating to the inaccessibility of exam 
tables and weight scales, and ensure that regardless of recipient size, 
as long as recipients use at least one exam table or weight scale, 
patients will have access to accessible exam tables and weight scales. 
The Department also chose to specify exam tables and weight scales 
because exam tables and weight scales that meet the MDE Standards are 
already available on the open market and are less expensive than some 
other available accessible MDE, such as imaging equipment.\215\
---------------------------------------------------------------------------

    \215\ See, e.g., 82 FR 2810, 2829 (Jan. 9, 2017) (stating that 
commenters were concerned about immediate compliance with the MDE 
Standards for ``more expensive imaging equipment'' compared to other 
accessible MDE). See also 2024 Mammography Price Guide, Block 
Imaging, https://www.blockimaging.com/bid/95356/digital-mammography-equipment-price-cost-info (last visited Feb. 20, 2024).
---------------------------------------------------------------------------

    Comment: A few medical provider groups expressed concerns about the 
extension of responsibility for these provisions to facilities not 
directly controlled by the section 504 covered recipient, giving an 
example of an emergency department boarding patients for other 
departments when inpatient beds or appropriate transfers are 
unavailable. These groups sought clarification of whether accessible 
MDE responsibilities will apply in these cases and requested a 
collaborative approach with the Department rather than being held 
accountable for decisions beyond their control, and consideration when 
complying with these requirements would result in undue burden.
    Response: Since its publication in 1977, the Department's section 
504 regulations have applied to recipients of Federal financial 
assistance from the Department. This rulemaking does not change the 
recipients covered by section 504. This rulemaking applies to each 
recipient and to the program or activity that receives such assistance. 
In the unlikely circumstance that a health care provider that receives 
financial assistance from the Department uses the facilities of a 
health care provider that does not accept financial assistance from the 
Department, the recipient is still required to comply with section 504 
and all other appropriate Federal civil rights laws. Section 
84.68(b)(1)(i) in the general prohibitions against discrimination 
section states that a recipient, in providing any aid, benefit, or 
service, may not, directly or through contractual, licensing, or other 
arrangement deny a qualified individual the opportunity to participate 
in or benefit from the aid, benefit, or service that is not equal to 
that afforded others. Paragraphs (b)(1)(ii) through (vii) list other 
types of discrimination prohibited by recipients whether directly or 
through contractual, licensing, or other arrangements.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.91 as proposed with no 
modifications.
Newly Purchased, Leased, or Otherwise Acquired Medical Diagnostic 
Equipment (Sec.  84.92)
    Proposed Sec.  84.92(a) required that all MDE that recipients 
acquire more than 60 days after final publication of this rule must 
meet the Standards for Accessible MDE until the recipient satisfies 
scoping requirements in Sec.  84.92(b). Proposed Sec.  84.92(b) 
contained specific scoping requirements for accessible MDE ranging from 
10% to 20% of all MDE based on facility specialty or purpose. We 
invited comment on the following questions:
     MDE Question 1: The Department seeks public comment on 
whether and how to apply the existing scoping requirements for patient 
or resident sleeping rooms or parking spaces in certain medical 
facilities to MDE; and on whether there are meaningful differences 
between patient or resident sleeping rooms, accessible parking, and MDE 
that the Department should consider when finalizing the scoping 
requirements.
     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.
     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.
     MDE Question 4: The Department seeks public comment on any 
burdens that this proposed requirement or a higher scoping requirement 
might impose on recipients.
     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).
     MDE Question 7: The Department seeks information 
regarding:
    [cir] The extent to which accessible MDE can be moved or otherwise 
shared between clinics or departments.
    [cir] The burdens that the rule's proposed approach to dispersion 
or additional dispersion requirements may impose on recipients.
    [cir] 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).
    We proposed in Sec.  84.92(c) to require recipients that use exam 
tables must acquire at least one accessible exam table within two years 
of the final publication of this rule. We proposed the same requirement 
for recipients that use weight scales. As noted above, we decided that 
accessible exam tables and

[[Page 40167]]

weight scales should be included in this requirement because many 
primary care health care providers use them for a range of basic 
diagnostic services. Additionally, accessible exam tables and weight 
scales are available on the open market and more affordable when 
compared to other accessible MDE, such as imaging equipment.\216\ 
Finally, we proposed a two year time period to acquire an accessible 
exam table and accessible weight scale because while that MDE is 
currently available, we understand that some recipients may need 
additional time to budget for and acquire it. We did not propose a 
longer time period because, as commenters note below, the inability to 
receive even basic health care services because of inaccessible exam 
tables and weight scales results in negative health outcomes for people 
with disabilities. We invited comment on the following questions:
---------------------------------------------------------------------------

    \216\ See U.S. Access Board, Access Board Review of MDE Low 
Height and MSRP, (May 23, 2023), https://www.regulations.gov/document/ATBCB-2023-0001-0002 (listing available exam table models 
that meet the height requirements of the MDE Standards, and their 
retail prices). Additionally, based on conversations with 
recipients, Federal partners, and advocacy organizations, and as 
supported in the comments received, accessible weight scales are 
more prevalent and affordable than accessible exam tables. On the 
affordability of accessible exam tables and weight scales compared 
to imaging equipment, see 82 FR 2810, 2829 (Jan. 9, 2017) (stating 
that commenters were concerned about immediate compliance with the 
MDE Standards for ``more expensive imaging equipment'' compared to 
other accessible MDE). See also 2024 Mammography Price Guide, Block 
Imaging, https://www.blockimaging.com/bid/95356/digital-mammography-equipment-price-cost-info (last visited Feb. 20, 2024).
---------------------------------------------------------------------------

     MDE Question 8: The Department seeks public comment on the 
potential impact of the requirement of paragraph (c) on people with 
disabilities and recipients, including the impact on the availability 
of accessible MDE for purchase and lease.
     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.
    We proposed in Sec.  84.92(d) to make clear that recipients may use 
alternative standards to those required by the Standards for Accessible 
MDE as long as the alternative standards result in substantially 
equivalent or greater accessibility and usability.
    We proposed in Sec.  84.92(e) to provide that this section would 
not require a recipient to take actions that would result in a 
fundamental alteration in the nature of a program or activity, or in 
undue financial and administrative burdens, while providing additional 
clarity on claiming these exceptions.
    We proposed in Sec.  84.92(f) to provide that recipients could 
prove that compliance with Sec.  84.92(a) or (c) would be a fundamental 
alteration if compliance would alter diagnostically required structural 
or operational characteristics of the equipment, and prevent the use of 
the equipment for its intended diagnostic purpose.
    The comments and our responses to Sec.  84.92 are set forth below.
    Comment: Most recipient organizations acknowledged the need to 
provide accessible MDE to people with disabilities and generally 
supported the accessible MDE provisions with scoping as proposed in the 
NPRM. Many recipient organizations expressed appreciation of the 
Department's measured approach and expressed support for provisions 
offering providers flexible approaches to compliance, particularly for 
small provider organizations with fewer than fifteen employees and the 
proposals at Sec.  84.22(c) for existing facilities allowing 
alternative compliance schemes. A minority of groups representing 
physician, dental, hospital and insurance providers expressed concerns 
with costs for small recipients and requested longer phase-in periods, 
extensions for small recipients if recent MDE purchases had been made, 
or in some cases, requiring all new purchases to be accessible MDE as 
opposed to requiring that practices have a minimum number or percentage 
of accessible equipment. A number of health care provider groups 
requested technical or financial assistance in support of their efforts 
to come into compliance.
    Response: The Department appreciates provider groups' recognition 
of the importance of these provisions for people with disabilities, as 
well as their support for the nuanced approach the Department is taking 
with scoping. The Department declines to extend the phase-in period, 
offer extensions for small practices which recently procured MDE, or to 
only require newly purchased equipment to be accessible at this time. 
This is because the health disparities and barriers to access-to-care 
people with disabilities are facing are urgent \217\ and extending 
phase-in periods will extend the time that they must wait for necessary 
services. Many people with disabilities have been urging the Department 
to make the MDE Standards mandatory since the Access Board issued them 
in 2017. Additionally, recipients have had considerable notice that 
these standards were under development, given that the ACA, enacted in 
2010, directed the Access Board to promulgate standards for MDE.\218\ 
Recipients were also on notice since the Access Board issued the MDE 
Standards in 2017 that enforcing agencies might make the standards 
enforceable.\219\
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    \217\ See CB Steele et al., Prevalence of Cancer Screening Among 
Adults With Disabilities, United States, 2013, 14 Preventing Chronic 
Disease (Jan. 2017), https://www.cdc.gov/pcd/issues/2017/16_0312.htm 
(finding disparate access to cancer screenings); Gloria Krahn, 
Persons with Disabilities as an Unrecognized Health Disparity 
Population, 105 Amer. J. Public Health 198 (Apr. 2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4355692/ (finding higher 
prevalence of obesity and cardiovascular diseases). See also Michael 
Karpman et al., Urban institute Health Policy Center, QuickTake: 
Even with Coverage, Many Adults Have Problems Getting Health Care, 
with Problems Most Prevalent among Adults with Disabilities, (Sept. 
2015), https://apps.urban.org/features/hrms/quicktakes/Many-Adults-
Have-Problems-Getting-Health-
Care.html#:~:text=Adults%20with%20disabilities%20were%20also,to%20get
%20to%20a%20doctor's; Henning Smith, Delayed and Unmet Need for 
Medical Care Among Publicly Insured Adults with Disabilities, 51 
Medical Care 1015, (Nov. 2013), https://pubmed.ncbi.nlm.nih.gov/24113815/; Amanda Reichard et al, Prevalence and Reasons for 
Delaying and Foregoing Necessary Care by the Presence and Type of 
Disability Among Working-age Adults, 10 Disability and Health J. 39, 
(Jan. 2017), https://pubmed.ncbi.nlm.nih.gov/27771217/; Michelle 
Stransky et al., Provider Continuity and Reasons for not Having a 
Provider Among Persons With and Without Disabilities, 12 Disability 
and Health J. 131, (Jan. 2019), https://pubmed.ncbi.nlm.nih.gov/30244847/; Sarah Bauer et al., Disability and Physical and 
Communication-related Barriers to Health Care Related Services Among 
Florida Residents: A Brief Report, 9 Disability and Health J. 552, 
(July 2016), https://pubmed.ncbi.nlm.nih.gov/27101882/ (finding 
barriers to access to care).
    \218\ Section 4203 of the Affordable Care Act, 42 U.S.C. 18001 
et seq., amending the Rehabilitation Act to add section 510, 29 
U.S.C. 794f.
    \219\ 82 FR 2810 (explaining that ``other agencies, referred to 
as enforcing authorities in the MDE Standards, may issue regulations 
or adopt policies that require health care providers subject to 
their jurisdiction to acquire accessible medical diagnostic 
equipment that complies with the MDE Standards'').
---------------------------------------------------------------------------

    Finally, with the defenses of fundamental alteration and undue 
burden, this regulation already includes a carefully calibrated balance 
of interests to account for the burden on smaller recipients.
    Comment: Many disability advocates, disability rights advocacy 
organizations, a member of Congress, and some State and local 
jurisdictions voiced concerns that the proposed scoping provisions were 
inadequate to meet demand among people with mobility disabilities. Many 
commenters dismissed using parking space percentages, which assume 
time-limited use of designated slots, as an inappropriate model for MDE 
scoping for facilities providing medical services

[[Page 40168]]

frequented by a growing population of patients with disabilities. 
Without a larger percentage or all equipment being accessible, they 
asserted that patients with disabilities will have fewer scheduling 
options than their nondisabled counterparts. Instead, some commenters 
suggested using standards now applied to transportation retrofits.
    Many commenters felt that 10% and 20% were inadequate percentages 
for accessible MDE because of demographic trends and the belief that 
accessible MDE would be considerably more in demand than parking 
spaces, especially since nondisabled drivers often drive their 
relatives with disabilities to these facilities, while those who need 
accessible MDE can only utilize the accessible equipment. Those 
commenters either proposed higher percentage thresholds for compliance, 
such as 20% and 40%, or that facilities require all newly purchased and 
leased MDE to be accessible. Some commenters also noted that the cost 
difference between accessible and inaccessible scales is negligible, so 
thresholds for scales could be instituted in a shorter time frame. An 
individual with disabilities objected to having to wait two more years 
for accessible MDE after they already waited 50 years from the adoption 
of section 504 and warned that an additional two-year waiting period 
would put the health of some people with disabilities at risk and even 
result in untimely deaths. An independent Federal agency charged with 
advising the President, Congress, and other Federal agencies on 
policies, programs, practices, and procedures that affect people with 
disabilities also objected to the two-year implementation timeline, 
recommending instead one year for exam tables and 120 days for scales. 
A commenter from the health advocacy field noted the absence of 
timelines for accessible MDE beyond scales and medical exam tables and 
requested the Department set an outer limit for compliance with these 
provisions at two years.
    While several disability commenters opposed varying percentage 
requirements for different covered entities because of the difficulties 
in identifying which specialties are most vital to people with 
disabilities, others supported higher requirements for facilities whose 
patient census includes large numbers of people with mobility 
disabilities.
    Response: The Department appreciates the concerns of commenters 
seeking more stringent scoping and recognizes that the needs for 
accessible parking are not perfectly aligned with the needs 
underpinning accessible MDE. While parking spaces and MDE are not used 
in the exact same manner and may not be used with the same consistency, 
the limited use of MDE is analogous to the use of parking spaces at a 
rehabilitation facility because, as with parking spaces, multiple 
patients with mobility disabilities could use the same piece of MDE in 
a day. Additionally, the use of MDE is not analogous to the use of 
vehicles covered by transportation regulations, which address a 
transportation system, rather than the accessibility of individual 
units of equipment, as under this rule.\220\ Weight scales and exam 
tables also typically cannot be retrofitted to be accessible with the 
same ease or cost ratio compared to acquiring accessible MDE. 
Inaccessible weight scales typically do not have large platforms that 
are required for wheelchair access. Inaccessible exam tables are 
usually fixed height ``box'' tables with static bases, and possibly 
drawers, that are not easily or cheaply replaced with adjustable 
mechanisms.\221\
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    \220\ 49 CFR part 37.
    \221\ ADA National Network, Accessible Medical Examination 
Tables and Chairs, https://adata.org/factsheet/accessible-medical-examination-tables-and-chairs (last visited March 1. 2024).
---------------------------------------------------------------------------

    Section 84.91 states that recipients may not exclude, deny benefits 
to, or otherwise discriminate against people with disabilities in 
programs or activities that use MDE. Additionally, Sec.  84.93 requires 
that each program or activity that uses MDE be readily accessible to 
and usable by people with disabilities in its entirety independent of 
the scoping requirements for newly acquired MDE set forth in Sec.  
84.92. Acquiring additional accessible MDE is one method to ensure that 
recipients do not exclude, deny benefits to, or otherwise discriminate 
against people with disabilities in programs or activities that use 
MDE, but it is not the only method. If a recipient denies a physical 
exam to a patient with a disability before the recipient is required to 
have an accessible exam table, they may still violate the other 
provisions of section 504.
    As noted above, the Department imposed specific requirements for 
exam tables and weight scales because of their ubiquity among primary 
care providers, their importance for basic diagnostic health services, 
and their relative attainability compared to more expensive accessible 
imaging equipment.\222\ We did not propose a longer time period because 
the inability to receive even basic health care services because of 
inaccessible exam tables and weight scales results in negative health 
outcomes for people with disabilities. Additionally, we did not propose 
a shorter time period because we recognize that some recipients, 
especially small recipients with fewer resources, will need sufficient 
time to budget for and acquire accessible exam tables and weight 
scales.
---------------------------------------------------------------------------

    \222\ See U.S. Access Board, Access Board Review of MDE Low 
Height and MSRP (May 23, 2023), https://www.regulations.gov/document/ATBCB-2023-0001-0002 (listing available exam table models 
that meet the height requirements of the MDE Standards, and their 
retail prices). On the affordability of accessible exam tables and 
weight scales compared to imaging equipment, see 82 FR 2810, 2829 
(Jan. 9, 2017) (stating that commenters were concerned about 
immediate compliance with the MDE Standards for ``more expensive 
imaging equipment'' compared to other accessible MDE). See also 2024 
Mammography Price Guide, Block Imaging, https://www.blockimaging.com/bid/95356/digital-mammography-equipment-price-cost-info (last visited Feb. 20, 2024).
---------------------------------------------------------------------------

    Recipients that provide services that rely on other MDE are still 
required to provide those services to patients with disabilities, but 
section 504 will not require those recipients to acquire other 
accessible MDE (unless the requirements for all newly purchased, 
leased, or otherwise acquired MDE set forth in Sec.  84.92(a) apply) if 
they are able to make their programs and activities accessible through 
other means.
    In view of demands on recipients, particularly small practices and 
rural facilities, the Department will not require all newly acquired 
MDE, beyond the requirements set forth in Sec.  84.92, to be accessible 
at this time or shorten the two-year implementation timeline. The 
utility of additional pieces of accessible MDE may be limited, given 
that multiple patients with mobility disabilities can use the same 
accessible MDE. Additionally, many recipients are small entities that 
only use a small amount of MDE. This means that regardless of whether 
the scoping requirement is 10%, 20%, or even 40%, many recipients would 
only be required to acquire one piece of accessible MDE.\223\
---------------------------------------------------------------------------

    \223\ Tables 18 and 19 of the Regulatory Impact Analysis provide 
estimates for the numbers of employees and accessible MDE that 
recipients will acquire in response to this rulemaking.
---------------------------------------------------------------------------

    While the Department will not increase the scoping requirements of 
proposed Sec.  84.92, recipients may determine that the most effective 
method to comply with the program access obligation set forth in Sec.  
84.93 will be to acquire additional accessible MDE beyond that required 
by Sec.  84.92. In addition, the nondiscrimination provisions in 
Sec. Sec.  84.68(a) and 84.91 continue to apply.
    Comment: A few commenters suggested different scoping

[[Page 40169]]

requirements to reflect the omission of higher weight patients from the 
Standards for Accessible MDE by adding higher capacity equipment.
    Response: The Department is not in a position to use scoping to 
address omissions from the MDE Standards developed by the Access Board 
as a part of this final rule.\224\ However, these comments will be 
noted and relayed to the Access Board.
---------------------------------------------------------------------------

    \224\ The Rehabilitation Act, as amended by the ACA, directed 
the Access Board to promulgate technical standards for accessible 
MDE. 29 U.S.C. 794f. The Access Board's MDE Standards are not 
binding unless they are adopted by an enforcement agency such as HHS 
or DOJ. HHS is one of the 12 Federal agencies that are on the Access 
Board. The Access Board is the agency that can update its standards 
and HHS, as a member of the Board, participates in issuing updates 
to those standards. While HHS or another enforcement agency can 
establish scoping requirements if they adopt the Access Board's 
standards, neither HHS nor any other Federal agency can amend the 
Access Board's standards on its own.
---------------------------------------------------------------------------

    Comment: Some commenters asked whether MDE or medical treatment 
equipment used in home settings is covered under this rulemaking. Some 
commenters made the assumption that such equipment was covered. 
Although some commenters supported such application as urgently needed, 
others cautioned that it could add unforeseen burden to recipients or 
even impede access to home-based care.
    Response: The obligations set forth in this rule apply to 
``program[s] or activit[ies] offered through or with the use of MDE,'' 
and are subject to the limitations set forth in the rule, including the 
undue burden limitation. Whether recipients would need to ensure that 
MDE used in the provision of health care programs or activities in home 
settings complied with the MDE Standards would depend on the particular 
factual circumstances. Regarding the comments about the application of 
this rule to medical treatment equipment, while the Department inquired 
about application of these standards to non-diagnostic equipment as a 
part of MDE Question 14 for future consideration, the MDE Standards are 
not being applied to non-diagnostic equipment at this time. Any 
extension of the MDE Standards or new standards will result from the 
work of and future standards set by the Access Board, and the 
Department will relay this information to the Access Board for future 
consideration.
    Comment: Many comments on the Department's proposed dispersion 
requirements to give larger covered entities flexibility in how they 
comply with subpart J requirements at Sec.  84.92(b)(3) stated that it 
is not logistically feasible to share MDE across medical departments. 
Many disability advocates and public health groups expressed concern 
that the proposed rule would lead to incomplete or partial 
accessibility. Without additional safeguards, these groups worry there 
would be scheduling and logistical issues for providers and patients 
alike, leading to untimely access to necessary care, and commenters 
suggested additional statutory requirements or IT infrastructure would 
be needed to coordinate availability of accessible MDE. Some groups 
noted that some MDE isn't sufficiently portable to support the flexible 
compliance scheme the Department envisioned, particularly if equipment 
is being shared beyond one floor, building, or campus. A State 
cautioned that the experience of trying to serve at-risk populations 
with scarce resources during COVID-19 could prove instructive in 
anticipating the challenges medical facilities would have providing 
accessible MDE to considerable numbers of people with mobility 
disabilities. Further, commenters stressed that strategies to achieve 
compliance that rely on patients travelling between remote campuses are 
infeasible for the many people with mobility disabilities who may lack 
ready access to transportation. Alternatively, some provider groups 
expressed appreciation for a flexible approach to problem-solving and 
meeting patients' needs.
    Response: The Department appreciates the comments on its proposed 
dispersion requirements. This provision does not require exact 
mathematical proportionality, which at times would be impossible. The 
Department agrees that there may be situations where a recipient with 
multiple departments, clinics, or specialties will not be able to 
simply disperse its accessible MDE proportionally across all 
departments, clinics, or specialties. If a recipient requires a patient 
with a disability who requires accessible MDE to use the MDE of another 
department, the recipient must ensure that the accessible MDE is 
readily accessible to and usable by the patient. Factors to consider in 
determining whether this standard has been met may include, among other 
things, whether the MDE is readily available and not a significant 
distance from where the patient is seeking care; whether changing 
locations during the patient visit significantly increases wait times; 
whether the patient is required to be undressed or partially dressed to 
use the MDE (if, for example, the patient has to go to a different part 
of the same building to use the accessible MDE); and whether the 
recipient provides assistance moving between locations. This means that 
some of the situations commenters described, including going to a 
separate campus or building to use a recipient's accessible MDE, could 
result in the recipient's program or activity not being readily 
accessible to and usable by patients with disabilities as required by 
Sec.  84.93(a). Recipients must ensure that the dispersal of their 
accessible MDE does not discriminate against people with disabilities.
    The Department also recognizes there may be situations where small 
recipients with a limited number of departments, clinics, or 
specialties in the same building may have one piece of accessible MDE 
that is shared among all departments, clinics, or specialties in a 
manner that provides access for all patients with disabilities who 
require access to the accessible MDE. The Department recommends as a 
best practice that where a recipient in a large facility with many 
departments, clinics, or specialties uses MDE, recipients have at least 
one piece of accessible MDE in each department, clinic, or specialty to 
limit instances where patients with disabilities must traverse between 
departments, clinics, or specialties for care.
    Comment: The Department received many comments with suggestions for 
alternative requirements or methods for the placement of accessible 
MDE. Many disability and public health group commenters supported the 
alternative of requiring at least one exam table and scale per 
department, as a minimum, utilizing dispersion only as an interim 
measure. One commenter requested further clarity on how rules would 
apply to facilities with multiple non-adjacent campuses. Other 
disability organizations suggested requiring facilities to provide 
accessible transportation between facilities at no cost to the patient 
if necessary to secure timely access to MDE, or providing access to MDE 
via home visits. Similarly, one public health foundation expressed 
concern the NPRM did not recognize the burden imposed on people with 
disabilities of having to travel further or wait longer to access MDE. 
By contrast, many provider groups expressed concern about the cost and 
burden of more prescriptive approaches including one exam table and 
scale for each component of a medical facility.
    Response: As noted in the Department's response above, recipients 
are encouraged to obtain at least one piece of accessible MDE for each 
department that uses that MDE. However, due to the varying sizes,

[[Page 40170]]

patient populations, and circumstances of different recipients, the 
Department recognizes that recipients in large facilities with multiple 
departments will not necessarily have to obtain at least one piece of 
accessible MDE for each of its departments.
    Situations where a recipient has multiple campuses and requires a 
patient who requires accessible MDE to go to different campuses for 
services from the same department due to the distribution of accessible 
MDE may constitute violations of Sec.  84.92(b)(3) if the recipient's 
MDE is not readily accessible to or usable by persons with 
disabilities. In such situations, however, the recipient may be able to 
take other measures to ensure that its programs and activities are 
readily accessible to and usable by the patient. For example, it could 
offer home visits that provide equal access to care or accessible 
transportation to the patient with a disability at no cost to them 
within a reasonable time frame.
    Comment: The Department received several comments urging the 
Department to amend this rule to reflect the Access Board NPRM 
proposing to revise the Accessible MDE standards by replacing the 
current 17 to 19 inch low transfer height range with a low transfer 
height of 17 inches.\225\ The Access Board issued this NPRM to revise 
the height consistent with the findings of recent NIDILRR-funded 
research that the 17-inch low transfer height better reflects the needs 
of wheelchair users for safe transfers to examination tables.\226\
---------------------------------------------------------------------------

    \225\ 88 FR 33056 (May 23, 2023).
    \226\ See, e.g., Clive D'Souza, University of Pittsburgh Dep't 
of Rehabilitation Science and Technology, Analysis of Low Wheelchair 
Seat Heights and Transfer surfaces for Medical Diagnostic Equipment 
Final Report (Jan. 2022), https://www.access-board.gov/research/human/wheelchair-seat-height/.
---------------------------------------------------------------------------

    Response: The Access Board issued an NPRM that proposed to remove 
the sunset provision allowing for a 17 to 19 inch low transfer surface 
height and replace it with a 17-inch low transfer height requirement in 
May of 2023. As of the drafting of this final rule, the Access Board 
has not yet finalized the 17-inch low transfer height. As noted in the 
NPRM, the Department will consider issuing supplemental rulemaking 
updating the low transfer height requirement once the Access Board's 
NPRM on transfer height is finalized.
    Under this rule, recipients acquiring accessible examination tables 
have the option acquiring examination tables that lower to between 17 
to 19 inches.
    As a reminder, under Sec.  84.93(a) recipients are required to 
operate their programs and activities that use MDE so that they are 
accessible to people with disabilities, regardless of whether their 
exam tables lower to 17 or 19 inches.
    Comment: A commenter encouraged the Department to work with the 
Access Board and DOJ on guidance and to consider the General Services 
Administration's framework for implementing the technology 
accessibility standards under section 508 of the Rehabilitation Act.
    Response: The Department appreciates the recommendation and is 
committed to creating guidance documents and other technical assistance 
and providing education to assist recipients with understanding and 
meeting their obligations, in addition to guidance documents on the MDE 
Standards that already exist.\227\
---------------------------------------------------------------------------

    \227\ See e.g., ADA Nat'l Network, Accessible Medical Diagnostic 
Equipment, https://adata.org/factsheet/accessible-medical-diagnostic-equipment (last visited Dec. 11, 2023).
---------------------------------------------------------------------------

Summary of Regulatory Changes
    Based on comments we received concerning methods for acquiring 
accessible MDE, discussed below in the comments and responses 
concerning Sec.  84.93, we are modifying Sec.  84.92(a) to explicitly 
recognize that lease renewals, in addition to the purchase, lease, or 
other acquisition, of MDE, will trigger the requirements of Sec.  
84.92(a). The Department's intent was always that lease renewals fall 
under the umbrella of new purchases, leases, or other methods for 
acquiring MDE under Sec.  84.92(a), but we recognize that some readers 
may be confused if lease renewals are not specifically mentioned.
Existing Medical Diagnostic Equipment (Sec.  84.93)
    We proposed in Sec.  84.93 to include clarifications regarding 
requirements for existing MDE. We proposed in Sec.  84.93(a) to clarify 
that the program or activity in its entirety must be accessible, which 
does not necessarily require a recipient to make each of its pieces of 
MDE accessible, nor does it require a recipient to take an action that 
would result in a fundamental alteration in the nature of a program or 
activity, or in undue financial and administrative burdens.
    In Sec.  84.93(a)(3) of this final rule, we are correcting a 
typographical error in the NPRM. Section 84.93(a)(3) of the final rule 
will state that a recipient meets its burden of proving that compliance 
with Sec.  84.93(a) would result in a fundamental alteration under 
Sec.  84.93(a)(2) if it demonstrates that compliance with Sec.  
84.93(a) would alter diagnostically required structural or operational 
characteristics of the equipment and prevent the use of the equipment 
for its intended diagnostic purpose. The NPRM mistakenly referred to 
Sec.  84.92(a) and (c) rather than Sec.  84.93(a).
    We proposed in Sec.  84.93(b) to state that recipients could comply 
with this section through other methods beyond the acquisition of 
accessible MDE where other methods are effective in achieving 
accessibility of the program or activity. We invited comment on the 
following questions:
     MDE Question 10: The Department seeks information about 
other methods that recipients can use to make their programs and 
activities readily accessible to and usable by individuals with 
disabilities in lieu of purchasing, leasing, or otherwise acquiring 
accessible MDE.
     MDE Question 11: The Department seeks information 
regarding recipients' leasing practices, including how many and what 
types of recipients use leasing, rather than purchasing, to acquire 
MDE; when recipients lease equipment; whether leasing is limited to 
certain types of equipment (e.g., costlier & more technologically 
complex types of equipment); and the typical length of recipients' MDE 
lease agreements.
     MDE Question 12: The Department seeks information 
regarding whether there is a price differential for MDE lease 
agreements for accessible equipment.
     MDE Question 13: The Department seeks information 
regarding any methods that recipients use to acquire MDE other than 
purchasing or leasing.
     MDE Question 14: If this rule were to apply to medical 
equipment that is not used for diagnostic purposes,
    o Should the technical standards set forth in the Standards for 
Accessible Medical Diagnostic Equipment be applied to non-diagnostic 
medical equipment, and if so, in what situations should those technical 
standards apply to non-diagnostic medical equipment? Are there 
particular types of non-diagnostic medical equipment that should or 
should not be covered?
    The comments and our responses to proposed Sec.  84.93 are set 
forth below.
    Comment: The Department received comments on leasing arrangements 
and alternatives from disability, public health, and provider groups 
and State and local jurisdictions. One public health entity advised the 
Department to conduct a comprehensive survey to better understand 
leasing practices and their utilization in diagnostic health care 
delivery. This commenter

[[Page 40171]]

mentioned that in addition to leasing new equipment, some entities will 
lease or purchase refurbished units. Other health care providers may 
receive MDE through donations, long-term borrowing, or pooling and 
sharing arrangements. One commenter said that about 70% of medical 
equipment is leased, typically on three to five year contracts but 
often with early opt-out provisions, and that leases may qualify for 
tax benefits like IRS section 179. Disability and caregiving commenters 
specifically warned that lease renewals may be used by recipients to 
circumvent compliance and urged the Department to revise regulatory 
language to clarify that lease renewals are considered ``new'' leases. 
Another disability advocacy organization noted trade-ins and rentals as 
other possible alternatives to leases.
    Response: The Department appreciates these responses. The 
Department agrees that recipients may not rely on the renewal of leases 
for existing MDE as a method to avoid acquiring accessible MDE for a 
prolonged period of time. Accordingly, the Department has edited the 
regulatory text at Sec.  84.92(a) to clarify that lease renewals will 
also trigger the requirement to acquire accessible MDE. The intent of 
the rulemaking was always to require recipients to acquire accessible 
MDE when a recipient's lease of inaccessible MDE will expire at a set 
point in the future, when a piece of MDE reaches the end of its useful 
life and the recipient replaces it, or when a recipient decides to 
acquire a new piece of MDE for any of a myriad of reasons. Failing to 
explicitly state that lease renewals are included under Sec.  84.92(a) 
may suggest that they are not covered and incentivize recipients to 
renew leases on inaccessible MDE for greater periods than they would 
have otherwise, extending the period where patients with disabilities 
do not have access to accessible MDE. Additionally, the Department 
notes that other arrangements, such as purchasing refurbished units or 
acquiring MDE through donations, long term borrowing, pooling, or 
sharing agreements will not exempt recipients from the obligations of 
Sec.  84.92. Accordingly, the Department clarifies that lease renewals, 
purchasing refurbished MDE, acquiring MDE through donations, long term 
borrowing, pooling, and sharing agreements are all considered new 
purchases, leases, or other acquisitions of MDE under Sec.  84.92 and 
its scoping standards. Additionally, the Department considers trade-in, 
rental, and other methods of acquisition of MDE as methods to 
``otherwise acquire MDE'' already covered under Sec.  84.92. The intent 
of this rulemaking is not to provide for loopholes where a recipient, 
regardless of fundamental alteration or undue burden, can avoid 
acquiring accessible MDE for long periods of time and avoid providing 
access to people with disabilities.
    Comment: The Department received many comments from diverse 
stakeholders on whether the Access Board's MDE Standards should be 
applied to medical equipment beyond MDE. While most commenters 
supported applying the MDE Standards to non-diagnostic equipment, 
especially equipment used for therapeutic or treatment purposes, some 
commenters urged the Department not to do so without further input from 
interested parties. Disability stakeholders strongly supported these 
applications and several encouraged the Department to approve standards 
for a range of medical equipment used primarily for treatment. However, 
those commenters also stated that the Department lacks technical 
expertise to impose such standards unilaterally on a broad range of 
equipment. They therefore suggested the Department coordinate with the 
Access Board, while also extending new standards to account for blind 
individuals, people with sensory disabilities, higher weight people, 
and people with intellectual disabilities. Other commenters advocated 
for the Department to set standards for equipment used in the home and 
for telehealth.
    Response: The Department agrees that any extension of the MDE 
standards to non-diagnostic equipment, or any new standards for medical 
equipment meant to account for additional disabilities, should come 
with additional input from the Access Board. The Department has been in 
frequent contact with the Access Board about this rulemaking and the 
MDE Standards, and would rely heavily on the Access Board's extensive 
knowledge and technical acumen before altering the MDE Standards or 
creating new standards. The Department also notes that proposed subpart 
I covers accessible web content and mobile apps, including telehealth 
platforms, and requires that recipients conform to the success criteria 
of WCAG 2.1 AA.
    Comment: An association representing dental support organizations 
asked the Department whether dentists could continue to treat patients 
who prefer to be treated in their wheelchairs after the effective date 
of the final rule. This association also raised the issue of the 
accessibility of exam chairs in instances where plumbing is attached to 
the chairs in ways that prevent compliance with the standards.
    Response: This rule establishes accessibility requirements that 
recipients that use MDE must comply with. It does not require patients 
to receive medical services while using accessible MDE if the recipient 
can provide the benefits of the recipient's programs or activities that 
the patient requires without the need for the patient to transfer to 
the accessible MDE, and if the patient prefers not to transfer to the 
accessible MDE.
    In instances where a recipient has decided to use inaccessible exam 
chairs with plumbing built into the chair, whether replacing one or 
more of such inaccessible MDE with accessible MDE would constitute an 
undue burden or fundamental alteration would depend entirely on the 
individual circumstances of the recipient.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, in Sec.  84.93(a)(3), we are replacing the reference to Sec.  
84.92(a) and (c) with a reference to Sec.  84.93(a), and we are 
finalizing the remainder of Sec.  84.93 as proposed with no other 
modifications.
Qualified Staff (Sec.  84.94)
    Proposed Sec.  84.94 required that a recipient ensure its staff is 
able to successfully operate accessible MDE, assist with transfers and 
positioning of individuals with disabilities, and carry out program 
access obligations for existing MDE. We invited comment on the 
following questions:
     MDE Question 15: The Department seeks general comments on 
this proposal, including any specific information on the effectiveness 
of programs used by recipients in the past to ensure that their staff 
is qualified and any information on the costs associated with such 
programs.
     MDE Question 16: The Department seeks public comment on 
whether there are any barriers to complying with this proposed 
requirement, and if so, how they may be addressed.
    The comments and our responses to proposed Sec.  84.94 are set 
forth below.
    Comment: The Department received comments on how to ensure staff 
are qualified and properly trained from diverse stakeholders. 
Disability commenters overwhelmingly supported mandatory trainings of 
recipients on the safe use of accessible MDE, accompanied by modules 
covering effective communication and person-centered care, developed in 
consultation with disability rights organizations and advocates with 
lived experience with

[[Page 40172]]

refresher trainings at regular intervals. Commenters asserted that the 
costs of these trainings would be modest, especially when compared with 
the costs of worker or patient injury resulting from untrained staff. 
One commenter asserted that proposed Sec.  84.94, as drafted in the 
NPRM, was insufficient to ensure recipients train and retrain qualified 
staff to operate accessible MDE and assist with necessary transfers and 
positioning to meet recipient program access obligations and safely 
serve clients. Many commenters agreed that health care providers must 
be trained on accessible MDE and given guidance on cultural competency 
in interactions with patients with disabilities, and urged the 
Department to provide more support and training for recipients.
    Finally, some disability commenters, citing personal or aggregated 
accounts of hospitals asking relatives or companions to lift and 
transfer patients, requested that we clarify that it is hospital staff, 
not the patient or their relatives' responsibility, to do lifting and 
transferring necessary to utilize MDE.
    Response: The Department appreciates the comments on qualified 
staff. As the NPRM notes, often the most effective way for recipients 
to ensure that their staff are able to successfully operate accessible 
MDE is to provide staff training on the use of MDE. While it may be in 
the best interest of recipients to provide training, both for the 
safety of the patient and the safety of the employee, the Department 
wishes to provide recipients with flexibility in how they ensure 
qualified staff. Appropriate training curricula and regimens for a 
small single-physician providers may differ from those required for 
large hospital systems.
    Although specific trainings are not required, it is worth noting 
that medical practices and facilities seeking technical assistance on 
these and other health care accessibility requirements can reference 
previously issued joint guidance from the Department and the Department 
of Justice, titled ``Access to Medical Care for Individuals with 
Mobility Disabilities.'' \228\ The Department will consider updating 
this guidance for consistency with this rulemaking.
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    \228\ U.S. Dep't of Health & Human Servs., U.S. Dep't of 
Justice, Access to Medical Care for Individuals with Mobility 
Disabilities (July 2010), https://www.hhs.gov/sites/default/files/ocr/civilrights/understanding/disability/adamobilityimpairmentsgudiance.pdf.
---------------------------------------------------------------------------

    Finally, the Department clarifies that, as noted in the NPRM, 
barring an applicable limitation or defense, a recipient cannot require 
a patient with a disability to bring someone along with them to help 
during an exam. A patient may choose to bring another person such as a 
friend, family member, or personal care aide to an appointment, but 
regardless, the recipient may need to provide reasonable assistance to 
enable the patient to receive medical care. Such assistance may include 
helping a person who uses a wheelchair to transfer from their 
wheelchair to the exam table or diagnostic chair.\229\ The recipient 
cannot require the person accompanying the patient to assist. We also 
remind recipients that the provision in the ACA that required the 
development of these MDE accessibility standards was designed to 
``allow independent entry to, use of, and exit from the equipment by 
such individuals to the maximum extent possible.'' \230\
---------------------------------------------------------------------------

    \229\ See id.
    \230\ 29 U.S.C. 794f.
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Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.94 as proposed with no 
modifications.

Subpart K--Procedures

    Subpart K contains the procedures for enforcement of this rule.
Procedures (Sec.  84.98)
    Proposed Sec.  84.98, stated that the procedural provisions 
applicable to title VI of the Civil Rights Act of 1964 apply to the 
part. Those procedures are found in 45 CFR 80.6 through 80.10 and 45 
CFR part 81.
    The comments and our responses regarding Sec.  84.98 are set forth 
below.
    Comment: Many commenters expressed concerns about what they viewed 
as a lack of enforcement procedures in the rule, noting that without 
``teeth,'' the regulation is not useful and will have no effect. One 
commenter urged that the rule contain a means of enforcement other than 
through filing a lawsuit.
    Response: The Department appreciates commenters' concerns about 
what they believe to be a lack of enforcement procedures in the rule. 
As noted above, Sec.  84.98 incorporates the compliance procedures of 
title VI of the Civil Rights Act of 1964 which prohibits discrimination 
on the basis of race, color, and national origin in federally funded 
programs. Many other civil rights regulations that apply to recipients 
of Federal financial assistance similarly incorporate title VI 
procedures.
    The incorporated regulations mandate that the Department conduct 
proactive periodic compliance reviews without the need for a complaint 
and also that it investigate complaints filed with it. Any person who 
believes themselves or any specific class of individuals to have been 
subjected to discrimination may file a written complaint within 180 
days from the alleged discrimination, unless the time is extended by 
the Department. The Department is required to make a prompt 
investigation whenever a compliance review, complaint, or other 
information coming to its attention indicates a possible failure to 
comply with this part. If compliance cannot be achieved through 
voluntary means, the regulations provide procedures for termination of 
Federal financial assistance following an administrative hearing. The 
Department may also refer the matter to DOJ to secure compliance 
through any other means authorized by law. These administrative 
procedures allow individuals to have their complaints investigated 
without having to file lawsuits.
    Complaints may be filed through the OCR Complaint Portal at 
ocrportal.hhs.gov/ocr/smartscreen/main.jsf. The Department also accepts 
complaints by email at [email protected] and by mail at Centralized 
Case Management Operations, U.S. Department of Health and Human 
Services, 200 Independence Ave. SW, Room 509F, Washington, DC 20201.You 
can call OCR's toll-free number at (800) 368-1019 or (800) 537-7697 
(TDD) to speak with someone who can answer your questions and guide you 
through the process.
    Comment: Observing the urgent need for enforcement, multiple 
commenters, including several disability rights organizations, 
recommended that we put in place procedures for oversight, monitoring, 
and enforcement of the regulation. Others said that there must be 
prioritization and strengthening of enforcement mechanisms. Several 
commenters stated that compliance is complaint driven and they 
cautioned against reliance on complaints alone to enforce the 
regulations. They noted the difficulty of expecting individuals to file 
complaints during a very stressful time.
    Many commenters expressed concerns that the Department does not 
have enough investigators for all the complaints. They felt that 
complaints were being ``pushed aside'' because of other priorities. 
Several commenters said that OCR needs to be adequately funded and 
staffed to fully implement and enforce the regulations. One commenter 
suggested that there be a separate division within the Department 
dedicated to investigating complaints.

[[Page 40173]]

    Response: We appreciate commenters' concerns and recognize the need 
for strong enforcement mechanisms. As noted above, the Department can 
initiate proactive compliance reviews on any matter that comes to their 
attention without the need for a complaint to be filed. The Department 
has a robust program of performing proactive agency-initiated 
compliance and an enforcement division dedicated to compliance reviews 
and complaint investigations with regional offices around the county. 
We will continue to efficiently address complaints and conduct 
compliance reviews consistent with the finite resources that we have 
available.
    Comment: We received many comments urging that the complaint 
process be reformed and streamlined. Several commenters highlighted the 
need for transparency about the complaint investigation process. A few 
commenters recommended that individuals should have more than 180 days 
to file complaints, there should be shorter time frames for responding 
by the Department, and barriers to accessing the complaint form should 
be eliminated. Many commenters suggested that resources, including 
legal assistance, be made available to help individuals in filing 
complaints. Noting that the Department encourages the use of the on-
line complaint form, many commenters expressed concerns about the 
burden that this places on individuals who may have difficulty using a 
computer and filling out forms on-line. They said that the technical 
process should not create a hardship when an individual is already 
under emotional and mental stress because of perceived discrimination.
    A number of commenters urged the Department to reduce the burden of 
filing complaints and to improve communication with individuals with 
disabilities during the filing process. Others said that we should 
provide specific guidance on how individuals and organizations can file 
complaints, how we will investigate them, and how they will be 
resolved. One commenter recommended that the regulations permit 
individuals to file complaints even if they haven't personally 
experienced discrimination.
    Response: We thank the commenters for their suggestions to improve 
the complaint process. We understand that the complaint procedure can 
be challenging, and we are always striving to simplify the process and 
to make it as transparent as possible. Staff are available to assist in 
the process; however, we cannot provide legal assistance to individuals 
filing complaints. The OCR website contains information about the 
process of filing a complaint and what to expect when a complaint is 
filed. In response to the comment about extending the 180-day time 
frame for filing complaints, we note that under the existing 
regulations the Department has discretion to extend the 180-day 
requirement. In addition, the existing regulations make it clear that 
anyone can file a complaint of discrimination.
    Comment: Many disability rights organizations and others urged the 
Department to use a cooperative rather than a punitive approach. They 
emphasized the need for the Department to work collaboratively with 
recipients to develop corrective action plans. Several asked that we 
provide recipients with resources and support to help them comply with 
the law. One commenter suggested that the Department focus on systemic 
practices while State and local recipients handle individual 
complaints. Noting that self-policing is a powerful way to promote 
enforcement, the commenter recommended that large recipients be 
required to institute internal complaint systems. Several commenters 
suggested that recipients designate someone to be responsible for 
ensuring enforcement of the regulation, accepting complaints, and 
answering questions.
    Response: We appreciate commenters' concerns and remain firmly 
committed to using a cooperative approach. Throughout the investigative 
process, OCR provides technical assistance and works closely with 
recipients to help them comply with the law. The vast majority of OCR's 
complaints are resolved in this cooperative manner and often result in 
Voluntary Resolution Agreements. The Department's current section 504 
regulation at Sec.  84.61 adopts the procedural provisions of title VI 
of the Civil Rights Act of 1964 for its section 504 regulation. The 
title VI regulation provides the legal framework for the Department's 
investigative process, including the obligation to attempt to resolve 
matters voluntarily and to assist recipients with compliance. 45 CFR 
80.6(a); 80.7(d)(1); 80.8(a).
    The existing regulations require that recipients designate an 
individual responsible for ensuring compliance and instituting a 
grievance procedure. Section 84.7(a) in the existing section 504 rule, 
which is retained in this final rule, requires recipients with 15 or 
more employees to designate an employee to coordinate efforts to comply 
with the part. Section 84.7(b) requires those recipients to adopt 
grievance procedures that provide for prompt and equitable resolution 
of complaints.
    With regard to the suggestion that the Department only handle 
statewide cases while State and local recipients handle individual 
matters, we note that the only agency with authority to enforce section 
504 and to investigate section 504 complaints against its recipients is 
the Department. However, an effective grievance procedure can allow 
internal resolution of complaints, potentially reducing the number of 
formal complaints filed with the Department.
    Comment: Multiple commenters, including several disability rights 
organizations, emphasized the urgent need for training and educational 
materials on the provisions in the rule. Many requested technical 
assistance and guidance documents to help them understand the 
requirements. Others asked for financial resources to help them comply.
    Response: We appreciate commenters' concerns and understand the 
importance of providing technical assistance and guidance to support 
compliance with this rule, and we will continue our practice of 
providing educational materials, guidance, and technical assistance 
documents on our website. Commenters' requests for providing increased 
training on the rule will be taken into consideration. The Department 
cannot provide financial assistance to recipients to ensure compliance 
with the part.
Data Collection
    Comment: A multitude of commenters, including many disability 
rights organizations, urged the Department to collect disability data. 
They recommended a provision in the rule requiring recipients to gather 
disability data that would allow for equal inclusion of people with 
disabilities in equity and quality analyses and would contain 
information as to whether and how individuals received modifications. 
Others said that there is a need for systematic, accurate, timely, and 
comprehensive collection, analysis, and public reporting of disability 
data for demographic purposes.
    Response: Section 80.6(b) of the title VI regulations, incorporated 
into this rule by Sec.  84.98, requires recipients to keep compliance 
records that must be submitted to the Department as requested including 
data showing the extent to which individuals with disabilities are 
beneficiaries of and participants in federally assisted programs. That 
section permits the Department to obtain any data it needs to determine 
compliance with this rule

[[Page 40174]]

as it performs complaint investigations and compliance reviews. 
However, obtaining data in this manner is done on a case-by-case basis 
as needed. There is no requirement that every recipient maintain and 
submit data to the Department.
    We agree that there needs to be better standards and practices in 
collecting data as this can have a positive impact in reducing 
disparities. Developing a civil rights data collection scheme can help 
to ensure that any civil rights data collection yields accurate data 
that mitigates potential negative impacts and that adequately protects 
the privacy of individuals. The Department is actively engaged with 
other agencies within the Department and throughout the Federal 
Government related to responsible data collection and recognizes the 
importance of data collection to meet its mission. The value of any 
data collection requirement will be significantly hampered by 
misalignment with the data needs of other agencies. For these reasons, 
the Department has decided to forgo the imposition of a data collection 
requirement in this rulemaking. We will continue to work with 
recipients and beneficiaries, and will consider whether an additional 
data collection requirement is needed in a future rulemaking.
Summary of Regulatory Changes
    For the reasons set forth above and considering the comments 
received, we are finalizing Sec.  84.98 as proposed without 
modification.
Section 504 Federally Conducted Rule
    This rule covers federally assisted programs. In the preamble to 
the proposed rule, we stated that since section 504 also covers 
programs and activities conducted by the Department, the Department 
intends to publish a separate rulemaking to update its federally 
conducted regulation enacted in 1998 (45 CFR part 85).
    Comments: Many commenters, including several disability rights 
organizations, applauded the Department for issuing the federally 
assisted regulation, noting that the robust improvements in the 
proposed rule are welcome and critically important. However, they 
expressed disappointment that a federally conducted NPRM was not issued 
at the same time as the federally assisted NPRM. They said that this 
delay represents a striking omission, and they strongly urged the 
Department to accelerate publication of the rulemaking so that the 
essential updates to the section 504 federally assisted regulations can 
be applied to the Department itself which has a wide range of programs 
under its purview. Another commenter noted the importance of supporting 
individuals with disabilities within the Federal Government to ensure 
equal and full participation in the Federal workforce.
    Response: The Department appreciates the comments received. We 
understand the importance of issuing a section 504 federally conducted 
rule, and we intend to do so soon. We note that the current section 504 
federally conducted regulation remains in effect.\231\
---------------------------------------------------------------------------

    \231\ 45 CFR part 85.
---------------------------------------------------------------------------

IV. Executive Order 12866 and Related Executive Orders on Regulatory 
Review

A. Regulatory Impact Analysis Summary

a. Statement of Need
    The Department is revising its existing section 504 regulation 
prohibiting discrimination on the basis of disability in programs and 
activities receiving Federal financial assistance from the Department. 
More than 40 years have passed since the Department originally issued 
regulations implementing section 504, with only limited changes in the 
decades since. During that time, major legislative and judicial 
developments have shifted the legal landscape of disability 
discrimination protections under section 504, including statutory 
amendments to the Rehabilitation Act, the enactment of the ADA and the 
ADAAA, the ACA, and Supreme Court and other significant court cases. 
HHS's section 504 regulation needed to be updated to reflect these 
developments in the law.
b. Overall Impact
    We have examined the impacts of the final rule under Executive 
Order (E.O.) 12866, as amended by E.O. 14094; E.O. 13563; the Small 
Business Regulatory Enforcement Fairness Act (also known as the 
Congressional Review Act, 5 U.S.C. 801 et seq.); the Regulatory 
Flexibility Act (5 U.S.C. 601-612); and the Unfunded Mandates Reform 
Act of 1995 (Pub. L. 104-4). E.O. 12866 and E.O. 13563 direct us to 
assess all costs and benefits of available regulatory alternatives and, 
when regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety, and other advantages; distributive impacts; 
and equity). This final rule is a significant regulatory action under 
section 3(f)(1) of E.O. 12866, as amended by E.O. 14094.
    The Regulatory Flexibility Act requires us to analyze regulatory 
options that would minimize any significant impact of a rule on small 
entities. Because the costs of the final rule are small relative to the 
revenue of recipients, including covered small entities, and because 
even the smallest affected entities would be unlikely to face a 
significant impact, we certify that the final rule will not have a 
significant economic impact on a substantial number of small 
entities.\232\
---------------------------------------------------------------------------

    \232\ See discussion in section ``Regulatory Flexibility Act--
Small Entity Analysis'' below.
---------------------------------------------------------------------------

    The Unfunded Mandates Reform Act of 1995 (section 202(a)) generally 
requires the Department to prepare a written statement, which includes 
an assessment of anticipated costs and benefits, before proposing ``any 
rule that includes any Federal mandate that may result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100,000,000 or more (adjusted annually 
for inflation) in any one year.'' This final rule is not subject to the 
Unfunded Mandates Reform Act because it falls under an exception for 
regulations that establish or enforce any statutory rights that 
prohibit discrimination on the basis of race, color, religion, sex, 
national origin, age, handicap, or disability.\233\
---------------------------------------------------------------------------

    \233\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------

    The Congressional Review Act (CRA) defines a ``major rule'' as 
``any rule that the Administrator of the Office of Information and 
Regulatory Affairs (OIRA) of the Office of Management and Budget finds 
has resulted in or is likely to result in--(A) ``an annual effect on 
the economy of $100,000,000 or more''; (B) ``a major increase in costs 
or prices for consumers, individual industries, Federal, State, or 
local government agencies, or geographic regions''; or (C) 
``significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.'' 5 U.S.C. 804(2). OMB's Office of Information and 
Regulatory Affairs has determined that this final rule does meet the 
criteria set forth in 5 U.S.C. 804(2). The Department will comply with 
the CRA's requirements to inform Congress.
    The Background and Overview sections at the beginning of this 
preamble contain a summary of this final rule and describe the reasons 
it is needed.

[[Page 40175]]

    Below is a summary of the results and methodology from our 
Regulatory Impact Analysis (RIA). A complete version of this RIA will 
be available at https://www.hhs.gov/sites/default/files/sec-504-ria-final-rule-2024.PDF.
c. Summary of Costs and Benefits
    Section 504 has applied to medical care providers that receive 
Federal financial assistance from the Department for approximately 
fifty years. The Department issued regulatory language detailing 
specific requirements for health care providers in 1977.\234\ The 
health care sector in the United States is quite broad, encompassing 
about 490,000 providers of ambulatory health care services and 3,044 
hospitals. It includes 168,459 offices of physicians; 124,384 offices 
of dentists; 141,853 offices of other health care practitioners; 7,192 
medical and diagnostic laboratories; 24,619 home health care service 
providers; and 19,625 outpatient care centers. Most of these entities 
receive Federal financial assistance. For example, the Department 
estimates that approximately 92% of doctors, 43% of dentists, and all 
hospitals receive Federal financial assistance from the Department and 
are thus subject to section 504. The Department's section 504 rule 
applies to this universe of recipients, updating the Department's 
original regulation and adding new provisions in several areas. This 
section 504 rule does not apply to health care programs and activities 
conducted by the Department. Those programs and activities are covered 
by part 85 of section 504, which covers federally conducted (as opposed 
to federally assisted) programs or activities.\235\ While a majority of 
the estimated costs associated with this rule concern health care 
providers, the rule covers all recipients of HHS funding.
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    \234\ For example, all recipients have been required to 
construct new facilities and alter existing facilities in an 
accessible manner, make changes to ensure program accessibility, 
provide alternate means of communication for persons who are blind, 
deaf, have low vision, or are hard of hearing (e.g., sign language 
interpreters, materials in Braille or on tape), and prohibited from 
denying or limiting access to their health care programs or from 
otherwise discriminating against qualified persons with a disability 
in their health care programs or activities.
    \235\ 45 CFR part 85.
---------------------------------------------------------------------------

    The RIA considers the various sections and quantifies several 
categories of costs that we anticipate recipients may incur. The RIA 
quantifies benefits people with disabilities are expected to receive 
due to higher percentages of accessible Medical Diagnostic Equipment 
(yielding improved health outcomes) at recipients' locations and 
discusses unquantified significant benefits and costs the final rule is 
expected to generate that could not be quantified or monetized (due to 
lack of data or for other methodological reasons). The RIA also 
quantifies benefits that will result from accessible web content and 
mobile applications while addressing unquantified benefits the final 
rule is expected to accrue.
    Table 1 below summarizes RIA results with respect to the likely 
incremental monetized benefits and costs, on an annualized basis. All 
monetized benefits and costs were estimated using discount rates of 7 
and 3 percent. The Final RIA results differ from Preliminary RIA 
results because some subpart I costs and benefits, which are based on 
the DOJ web accessibility RIA,\236\ have been recalculated to account 
for changes DOJ has made to its web accessibility RIA. Final RIA 
results also differ from Preliminary RIA results because the Final RIA 
results are expressed in 2022 dollars, while the Preliminary RIA 
results are expressed in 2021 dollars.
---------------------------------------------------------------------------

    \236\ U.S. Dep't of Justice, Title II Web and Mobile App Access 
FRIA 04-08-2024, https://www.ada.gov/assets/pdfs/web-fria.pdf.

   Table 1--Annualized Value of Monetized Benefits and Costs Under the
                       Final Rule, in 2022 Dollars
 [Annualized value of monetized costs and benefits under the final rule]
                            [In 2022 dollars]
------------------------------------------------------------------------
                                           7-Percent        3-Percent
                                         discount rate    discount rate
                                         (in millions)    (in millions)
------------------------------------------------------------------------
                       Monetized Incremental Costs
------------------------------------------------------------------------
Subpart I--Web, Mobile, and Kiosk                 934.7            916.9
 Accessibility........................
Subpart J--Accessible Medical                     377.4            371.6
 Equipment............................
Sec.   84.56--Medical Treatment.......             14.0             13.6
Sec.   84.57--Value Assessment Methods              0.1              0.1
Sec.   84.60--Child Welfare...........              0.1              0.1
                                       ---------------------------------
    Total Monetized Incremental Costs           1,326.1          1,302.1
     *................................
------------------------------------------------------------------------
                     Monetized Incremental Benefits
------------------------------------------------------------------------
Subpart I--Web, Mobile, and Kiosk               1,265.6          1,311.8
 Accessibility........................
Subpart J--Accessible Medical                     145.5            145.5
 Equipment............................
                                       ---------------------------------
    Total Monetized Incremental                 1,411.1          1,457.3
     Benefits *.......................
------------------------------------------------------------------------
(* Note: Totals may not sum due to rounding. The effects of this rule
  overlap with the effects of DOJ's final rule under title II of the ADA
  (89 FR 31320, April 24, 2024); see Summary Table C in the Regulatory
  Impact Analysis (RIA), which is also reproduced below, for quantified
  overlapping costs and benefits.)


[[Page 40176]]


     Summary Table C--Annualized Value of Monetized Base Costs and Benefits Excluding Those Associated With
Recipients That Are Public Entities Covered by DOJ Title II Web Accessibility Final Rule (89 FR 31320, April 24,
                                              2024) in 2022 Dollars
                                                   [Millions]
----------------------------------------------------------------------------------------------------------------
                                                 Costs, 7%        Costs, 3%       Benefits, 7%     Benefits 3%
        Subpart I costs and benefits           discount rate    discount rate    discount rate    discount rate
----------------------------------------------------------------------------------------------------------------
(1) All recipients..........................            934.7            916.9          1,265.6          1,311.8
(2) Excluding recipients that are also                  384.9            393.2             77.4             84.0
 public entities under title II.............
----------------------------------------------------------------------------------------------------------------

    Quantified incremental costs concerning accessible medical 
equipment under subpart J come from updating policies and procedures, 
acquiring accessible medical diagnostic equipment (MDE), and ensuring 
staff are qualified to successfully operate accessible MDE. Quantified 
incremental costs concerning web, mobile, and kiosk accessibility under 
subpart I come from reviewing and updating existing web content and 
mobile apps while ensuring ongoing conformance with listed standards 
for web content and mobile apps.
    Additional costs for provisions under Sec.  84.56, Medical 
treatment, Sec.  84.57, Value assessment methods, and Sec.  84.60, 
Child welfare, are calculated based on limited revisions to policies 
and procedures and training for employees on provisions that largely 
restate existing obligations and explicitly apply them to specific 
areas of health and human services. The RIA requested comment on more 
extensive transition and ongoing costs, but did not receive comments on 
those costs.
    Concerning the provisions to ensure consistency with the ADA, 
statutory amendments to the Rehabilitation Act, and Supreme Court and 
other significant court cases, the Department believes that these 
provisions will likely result in no additional costs to recipients.
    Regarding costs that can be monetized, the RIA finds that the final 
rule would result in annualized costs of $1,302.1 million or $1,326.1 
million ($778.4 million or $776.4 million, if limited to costs that do 
not overlap with DOJ's final web accessibility rule under title II of 
the ADA), corresponding to a 3% or a 7% discount rate. We separately 
report a full range of cost estimates of about $1,047.5 million to 
$1,765.6 million at a 3% discount rate, and a full range of cost 
estimates of about $1,072.9 million to $1,798.8 million at a 7% 
discount rate.
    For quantified benefits, the RIA quantifies the benefits that 
people with disabilities are expected to receive due to higher 
percentages of accessible Medical Diagnostic Equipment (yielding 
improved health outcomes) at recipients' locations and more accessible 
web content, mobile apps, and kiosks.
    Benefits from web, mobile, and kiosk accessibility and accessible 
school courses come from time savings and better education outcomes for 
both people with disabilities and people without disabilities. We 
conclude that the final rule yields subpart I benefits of $1,311.8 
million/year at a 3% discount rate or $1,265.6 million/year at a 7% 
discount rate ($84.0 million or $77.4 million, if limited to benefits 
that do not overlap with DOJ's web accessibility final rule).
    Subpart J benefits are benefits people with disabilities are 
expected to receive thanks to higher percentages of accessible MDE 
yielding improved health outcomes at recipients' locations. We conclude 
that the final rule yields $145.5 million/year in cancer-associated 
benefits. We separately report a range of quantifiable cancer-
associated benefit estimates of $97.0 million to $193.9 million per 
year.
    Total quantified benefits from subparts I and J provisions are thus 
estimated to exceed corresponding costs. Total annualized benefits are 
estimated to be $1,457.3 million at a 3% discount rate and $1,411.1 
million at a 7% discount rate ($229.4 million or $222.8 million, if 
limited to benefits that do not overlap with DOJ's web accessibility 
final rule).
    In addition to these quantified benefit estimates, the RIA includes 
discussions of potential unquantified benefits under the rule. 
Generally, the RIA anticipates that the final rule will result in 
myriad benefits for individuals with disabilities as a result of 
greater access to necessary health and human service programs and 
activities as well as limitations to discriminatory actions. 
Analogously, some costs have been quantified, while for others, the RIA 
requested comment that would facilitate more thorough estimation, and 
we received no additional information.
    The RIA discusses both quantitatively and qualitatively the 
regulatory alternatives the Department considered in an attempt to 
achieve the same statutory and regulatory goals while imposing lower 
costs on society.
Regulatory Flexibility Act--Small Entity Analysis
    The Department examined the economic implications of this final 
rule as required by the Regulatory Flexibility Act. This analysis, as 
well as other sections in the Regulatory Impact Analysis, serves as the 
Regulatory Flexibility Analysis, as required under the Regulatory 
Flexibility Act.
    The Department deems that a rule has a significant economic impact 
on a substantial number of small entities whenever the rule generates 
incremental cost representing more than 3% of revenue for 5% or more of 
small recipients.\237\
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    \237\ HHS uses as its measure of significant economic impact on 
a substantial number of small entities a change in revenues of more 
than 3% for 5% or more of affected small entities.'' 81 FR 31463 
(May 18, 2016). See also 87 FR 47906 (Aug. 4, 2022) (``The 
Department generally considers a rule to have a significant impact 
on a substantial number of small entities if it has at least a 3% 
impact on revenue on at least 5% of small entities'').
---------------------------------------------------------------------------

    The U.S. Small Business Administration (SBA) maintains a Table of 
Small Business Size Standards Matched to North American Industry 
Classification System Codes (NAICS).\238\ Because the RIA uses 2019 
counts of firms, for consistency, we have used SBA yearly revenues 
thresholds for 2019, which for recipients ranged

[[Page 40177]]

between $8 million \239\ and $41.5 million.\240\
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    \238\ The most current version became effective on October 1, 
2022. See U.S. Small Bus. Admin., Table of Size Standards, (last 
updated Oct. 1, 2022), https://www.sba.gov/document/support-table-size-standards. In our analyses, which pertain to 2019, we used the 
version effective in the 2019 calendar year. We note that CEs' 
distribution by SBA size--namely, the fraction of CEs that are small 
by SBA standards--did not change in any meaningful way in the past 
decades.
    \239\ The $8 million yearly 2019 revenue threshold applies to 
several NAICS, including 621340, Offices of Physical, Occupational 
and Speech Therapists and Audiologists, and 624410, Child Day Care 
Services. These $8 million yearly 2019 revenue thresholds have been 
increased for three NAICS: 621340, Offices of Physical, Occupational 
and Speech Therapists and Audiologists (to $11 million); 621399, 
Offices of All Other Miscellaneous Health Practitioners (to $9 
million) and 624410, Child Day Care Services (to 8.5 million).
    \240\ The $41.5 million yearly 2019 revenue threshold applies to 
Hospitals (NAICS 622), Direct Health and Medical Insurance Carriers 
(NAICS 524114) and Kidney Dialysis Centers (NAICS 621492). These 
thresholds have not changed in SBA's October 1, 2022, update. The 
$41.5 million yearly revenue threshold remains the highest value for 
recipients considered in our analyses.
---------------------------------------------------------------------------

    As reported in the RIA, 97.4% of all firms in the Health Care and 
Social Assistance sector (NAICS 62) are small. With the exception of 
Hospitals (Subsector 622), at least 9 out 10 of all recipients within 
each Health Care and Social Assistance NAICS code are small.
    Most firms--98.3%--in the Pharmacies and Drug Stores (NAICS 446110) 
group are small as well. About 60% of Direct Health and Medical 
Insurance Carriers (NAICS 524114) are small. About 60% of Colleges, 
Universities, and Professional Schools (NAICS 611310) are small. Hence, 
almost all non-government recipients (i.e., private firms) under the 
scope of the final rule are small businesses. Moreover, the fraction of 
total small firms in each NAICS code that falls in the smallest size 
group (fewer than 5 employees) is greater than 5% for all relevant 
NAICS codes. Because most non-government recipients under the scope of 
the final rule are small businesses, it is sufficient to investigate 
the impact of the final rule on the average recipient in the smallest 
size group to determine whether the final rule may generate a change in 
revenues of more than 3%. We need to determine whether the average firm 
in the smallest size group will incur incremental cost greater than 3%.
    Below we discuss the two reasons for our conclusion that firms in 
the smallest groups will not experience a 3% reduction in revenues. 
Hence, we certify that the final rule will not have a significant 
economic impact on a substantial number of small entities.
    As for the first reason, we note that, with the exception of a 
handful of HMO Medical Centers (NAICS 621491) and about 24,500 Child 
Day Care Services (NAICS 624410) firms, the yearly average revenue (in 
2022 dollars) for a recipient belonging to the smallest size group--for 
each 6-digit NAICS code considered separately--is $190,000 or more. 
Three percent of this sum is about $5,700 (2022 dollars), which, based 
on our review of data on prices for MDE as well as incremental costs 
for ensuring qualified staff, we deem is an amount sufficient to 
finance purchase of the limited set of inexpensive MDE the smallest 
entities typically need as well as to ensure qualified staff.
    Considering the smallest recipient groups among each of the 6-digit 
NAICS groups that private recipients belong to, the typical yearly 
average revenue is about $354,000. That represents the median of the 
average revenues across all relevant 6-digit NAICS codes. Podiatrists' 
offices' average yearly revenue is at the median, but general hospitals 
have the highest average yearly revenue among the relevant NAICS codes 
at $20 million, and Child Day Care Services have the lowest average 
yearly revenue among the relevant NAICS codes at $116,000. Thus, in 
many cases the 3% revenue threshold is about $10,000. Costs of the 
final rule are mostly proportional to the size of the recipient, and 
typical recipients in the smallest size group (fewer than 5 employees) 
are not expected to incur $10,000 incremental costs.\241\
---------------------------------------------------------------------------

    \241\ See full Regulatory Impact Analysis for tables and 
calculations.
---------------------------------------------------------------------------

    In addition, we estimate that the obligation to ensure that web 
content and mobile applications for the Department's recipients that 
are small providers (those with fewer than fifteen employees) will be 
less than 3% of their revenues. We note that the vast majority of the 
Department's recipients are small providers and estimate that most of 
these small providers (approximately 85.9%) have websites. The websites 
of these small providers are typically one domain with up to a few 
thousand pages and limited visitors per month. Thus, the Department 
estimates that for a cost of approximately $440 per year small 
recipients will be able to ensure that their websites can be made 
accessible and kept accessible each year.
    Comment: Some commenters expressed concern that the requirements of 
subpart I would lead to significant costs for recipients. One commenter 
in particular stated that it reviewed the price estimates of a firm 
that offers services to make web content ``ADA compliant'' and believed 
that the costs for reviewing existing web content for compliance and 
remediating web content for compliance could be more than $23,500 with 
additional monthly expenses.\242\
---------------------------------------------------------------------------

    \242\ See Skynet Technologies, How much does it cost to make a 
website ADA compliant? What are the factors that impact the cost?, 
https://www.skynettechnologies.com/blog/cost-to-make-website-ada-compliant (last visited Dec. 15, 2023).
---------------------------------------------------------------------------

    Response: In the RIA, the Department sampled several software 
companies' price lists for products and services designed to make 
websites accessible in order to estimate average compliance costs for 
recipients of various sizes. Based on that sampling, the Department 
estimates the average annual compliance costs for the 113,295 larger 
recipients to be $2,500 per year. Using that same methodology, the 
Department estimates the annual compliance costs for the 339,789 
smaller recipients (comprising offices of physicians, dentists, and 
other health practitioners) will be much lower given that the smaller 
entities' websites are expected to be less complex and include fewer 
pages. The Department's RIA estimates that the 85.9% of these smaller 
entities that have websites will spend an average of $440/year to 
ensure their pages are accessible. While there will be instances where 
a recipient incurs costs above the Department's estimated annual costs, 
those will likely be incurred by large recipients, such as hospitals 
with multiple locations, that use web content and mobile apps 
extensively and already devote significant resources to creating and 
maintaining web content and mobile apps. In rare instances where a 
small recipient has a significant online presence that would require a 
large percentage of its resources to review and remediate, the 
recipient may argue that full compliance with subpart I would amount to 
an undue burden under Sec.  84.88.
    We stress that the final rule includes exceptions meant to ease the 
burden on small firms and does not require entities to take any action 
that would result in a fundamental alteration in the nature of a 
program or activity or cause the entities to incur undue financial and 
administrative burdens.
Executive Order 13132: Federalism
    As required by E.O. 13132 on Federalism, the Department has 
examined the effects of provisions in the final regulation on the 
relationship between the Federal Government and the States. The 
Department has concluded that the final regulation has federalism 
implications but notes that State law will continue to govern unless 
displaced under standard principles of preemption.

[[Page 40178]]

    The regulation attempts to balance State autonomy with the 
necessity to create a Federal benchmark that will provide a uniform 
level of nondiscrimination protection across the country. It is 
recognized that the States generally have laws that relate to 
nondiscrimination against individuals on a variety of bases. Such State 
laws continue to be enforceable, unless they prevent application of the 
final rule. The rule explicitly provides that it is not to be construed 
to supersede State or local laws that provide additional protections 
against discrimination on any basis articulated under the regulation. 
Provisions of State law relating to nondiscrimination that are ``more 
stringent'' than the Federal regulatory requirements or implementation 
specifications will continue to be enforceable. Section 3(b) of E.O. 
13132 recognizes that national action limiting the policymaking 
discretion of States will be imposed only where there is constitutional 
and statutory authority for the action and the national activity is 
appropriate considering the presence of a problem of national 
significance. Discrimination issues in relation to health care are of 
national concern by virtue of the scope of interstate health commerce.
    Section 4(a) of E.O. 13132 expressly contemplates preemption when 
there is a conflict between exercising State and Federal authority 
under a Federal statute. Section 4(b) of the Executive order authorizes 
preemption of State law in the Federal rulemaking context when ``the 
exercise of State authority directly conflicts with the exercise of 
Federal authority under the Federal statute.'' The approach in this 
regulation is consistent with these standards in the Executive order in 
superseding State authority only when such authority is inconsistent 
with standards established pursuant to the grant of Federal authority 
under the statute.
    We received comments, including from States, that the Department 
did not consult with States in violation of E.O. 13132, particularly 
with respect to the integration provision's prohibition of failure to 
provide community-based services that results in serious risk of 
institutionalization. As explained above in the preamble discussion of 
the integration provision at Sec.  84.76, application of the 
integration mandate's protection to individuals ``at serious risk of 
institutionalization'' in the absence of community-based services is a 
well-established principle adopted by six circuits following Olmstead, 
beginning in 2003 with the decision in Fisher v. Oklahoma Health Care 
Authority.\243\ Given that this rule creates no new obligations to 
State and local governments, all of which have the existing 
responsibilities clarified in this rule under section 504 and analogous 
regulatory provisions in title II, this rule does not impose any new 
preemption of State law. Moreover, although the proposed rule addresses 
circumstances not previously covered specifically in the existing rule, 
those provisions also do not create new obligations for State and local 
governments, or other recipients of Federal financial assistance, but 
instead explicate longstanding requirements in the existing section 504 
regulations that prohibit recipients from providing services to 
qualified persons with disabilities in a manner that does not provide 
equal opportunities for such persons to gain the same benefits. In 
addition, a number of State and local governments and State agencies 
participated in the process by submitting comments in response to NPRM.
---------------------------------------------------------------------------

    \243\ 335 F.3d 175 (10th Cir. 2003).
---------------------------------------------------------------------------

    Section 6(b) of E.O. 13132 includes some qualitative discussion of 
substantial direct compliance costs that State and local governments 
would incur as a result of a final regulation. We have considered the 
cost burden that this rule imposes on State and local government 
recipients and estimate State and local government annualized costs 
will be about $563.6 million per year (2022 dollars) at a 3% discount 
rate and $589.8 million at a 7% discount rate.
    These costs represent the sum of costs for compliance with all 
provisions applying to State and local governments, namely those for 
subpart I (about 40% of costs for all recipients, i.e., public and 
private entities altogether), subpart J (about 10% of costs for all 
recipients), Sec.  84.56--Medical treatment (about 10% of costs for all 
recipients), 100% of costs for Sec.  84.57--Value assessment methods 
(only public entities--Medicaid agencies--bear these costs), and Sec.  
84.60--Child welfare (about 4% of costs of all recipients).
    In addition, the Department is aware that DOJ published the final 
Regulatory Impact Analysis \244\ to accompany its rule finalizing 
requirements for public entities covered by title II of the ADA and 
that its requirements are consistent with this Department's subpart 
I.\245\ DOJ examined the costs of its proposal for all public entities 
covered by title II and stated that the rule will not be unduly 
burdensome or costly for public entities. Because this Department's 
rule is consistent with the DOJ final rule (89 FR 31320, April 24, 
2024), we believe that the DOJ analysis provides further support for 
our belief that subpart I will not be unduly burdensome or costly for 
the Department's recipients that are public entities.
---------------------------------------------------------------------------

    \245\ U.S. Dep't of Justice, Title II Web and Mobile App Access 
FRIA 04-08-2024, https://www.ada.gov/assets/pdfs/web-fria.pdf.
---------------------------------------------------------------------------

Paperwork Reduction Act
    This final rule contains information collection requirements that 
are subject to review by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995 (PRA).\246\ Under the PRA, 
agencies are required to submit to OMB for review and approval any 
reporting or record-keeping requirements inherent in a proposed or 
final rule and are required to publish such proposed requirements for 
public comment. In order to evaluate whether an information collection 
should be approved by OMB, the PRA requires that the Department 
solicits comment on the following issues:
---------------------------------------------------------------------------

    \246\ 44 U.S.C. 3501-3520.
---------------------------------------------------------------------------

    1. Whether the information collection is necessary and useful to 
carry out the proper functions of the agency;
    2. The accuracy of the agency's estimate of the information 
collection burden;
    3. The quality, utility, and clarity of the information to be 
collected; and
    4. Recommendations to minimize the information collection burden on 
the affected public, including automated collection techniques.\247\
---------------------------------------------------------------------------

    \247\ 44 U.S.C. 3506(c)(2)(A).
---------------------------------------------------------------------------

    The PRA requires consideration of the time, effort, and financial 
resources necessary to meet the information collection requirements 
referenced in this section. The Department previously published a 
notice of a proposed data collection on September 14, 2023, at 88 FR 
63392-6351, as part of an NPRM entitled ``Discrimination on the Basis 
of Disability in Health and Human Service Programs or Activities'' (RIN 
0945-AA15), to invite public comment. OCR solicited comment on the 
issues listed above and estimated the annual burden of the information 
collection request (ICR) to be 256,763 hours. The new information 
collection is evaluated under OMB Control Number 0945-0013.
    OCR did not receive comments related to the previous notice.
    The notice requirement outlined in Sec.  84.8 implicates the third-
party disclosure provisions of the PRA implementing regulations, which 
compels an agency to request comment

[[Page 40179]]

and submit for OMB review any agency regulation that requires an 
individual ``to obtain or compile information for the purpose of 
disclosure to members of the public or the public at large, through 
posting, notification, labeling or similar disclosure. . . .''
    Table 6 of the Regulatory Impact Analysis reports that there are 
about 453,084 recipients covered by this rulemaking. We estimate the 
burden for responding to the Sec.  84.8 notice requirement assuming a 
single response per recipient, and that administrative or clerical 
support personnel will spend 34 minutes (0.5667 of an hour) to respond. 
The estimated total number of hours to respond is 256,763 (0.5667 x 
453,084).
Unfunded Mandates Reform Act
    Section 4(2) of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1503(2), excludes from coverage under that Act any proposed or 
final Federal regulation that ``establishes or enforces any statutory 
rights that prohibit discrimination on the basis of race, color, 
religion, sex, national origin, age, handicap, or disability.'' 
Accordingly, this rulemaking is not subject to the provisions of the 
UMRA.
    The Department received comment from some State officials arguing 
that the integration provision in Sec.  84.76 Integration is subject to 
the UMRA. For the reasons discussed in the preamble for Sec.  84.76, 
the Department declines this interpretation and restates that the rule 
in its entirety is exempted from the UMRA as a rule that enforces 
nondiscrimination on the basis of disability.
National Technology Transfer and Advancement Act of 1995
    The National Technology Transfer and Advancement Act of 1995 
(NTTAA) directs that, as a general matter, all Federal agencies and 
departments shall use technical standards that are developed or adopted 
by voluntary consensus standards bodies, which are private, generally 
nonprofit organizations that develop technical standards or 
specifications using well-defined procedures that require openness, 
balanced participation among affected interests and groups, fairness 
and due process, and an opportunity for appeal, as a means to carry out 
policy objectives or activities.\248\
---------------------------------------------------------------------------

    \248\ Public Law 104-113, section 12(d)(1) (15 U.S.C. 272 Note).
---------------------------------------------------------------------------

    The Department sought public comment in the NPRM on the 
accessibility standards for accessible medical diagnostic equipment and 
whether there are any other standards for accessible medical diagnostic 
equipment that the Department should consider. We received no 
significant public comment in response to our question requesting 
suggestions of alternative standards to apply to MDE. We also sought 
comment on the selection of WCAG 2.1 AA to coordinate the 
implementation and enforcement by Executive agencies of section 504 of 
the Rehabilitation Act of 1973, as amended (29 U.S.C. 794). Executive 
Order 12250 at section 1-2(c), 45 FR 72995 (Nov. 2, 1980). E.O. 12250 
does not apply to the 504 provisions relating to equal employment, 
which are reviewed and coordinated by the Equal Employment Opportunity 
Commission.\249\ The Attorney General has delegated the E.O. 12250 
functions to the Assistant Attorney General for the Civil Rights 
Division for purposes of reviewing and approving proposed and final 
rules.\250\
---------------------------------------------------------------------------

    \249\ See E.O. 12250 (DOJ Coordination authority) at 1-503 and 
E.O. 12067 (EEOC Coordination authority).
    \250\ 28 CFR 0.51.
---------------------------------------------------------------------------

    The proposed rule was reviewed and approved by the Assistant 
Attorney General, and this final rule was also reviewed and approved by 
the Assistant Attorney General.
Incorporation by Reference
    Through this rule, the Department is adopting the internationally 
recognized accessibility standard for web access, WCAG 2.1, published 
in June 2018, as the technical standard for web and mobile app 
accessibility under section 504. WCAG 2.1, published by W3C WAI, 
specifies success criteria and requirements that make web content more 
accessible to all users, including individuals with disabilities. The 
Department incorporates WCAG 2.1 by reference into this rule, instead 
of restating all of its requirements verbatim. To the extent there are 
distinctions between WCAG 2.1 and the standards articulated in part 84, 
the standards articulated in part 84 prevail.
    The Department notes that when W3C publishes new versions of WCAG, 
those versions will not be automatically incorporated into this rule. 
Federal agencies do not incorporate by reference into published 
regulations future versions of standards developed by bodies like W3C. 
Federal agencies are required to identify the particular version of a 
standard incorporated by reference in a regulation.\251\ When an 
updated version of a standard is published, an agency must revise its 
regulation if it seeks to incorporate any of the new material.
---------------------------------------------------------------------------

    \251\ See, e.g., 1 CFR 51.1(f) (``Incorporation by reference of 
a publication is limited to the edition of the publication that is 
approved [by the Office of the Federal Register]. Future amendments 
or revisions of the publication are not included.'').
---------------------------------------------------------------------------

    WCAG 2.1 Level AA is reasonably available to interested parties. 
Free copies of WCAG 2.1 Level AA are available online on W3C's website 
at https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. In addition, a copy of WCAG 2.1 Level AA is also 
available for inspection by appointment at Office for Civil Rights, 
U.S. Department of Health and Human Services, 200 Independence Ave. SW, 
Room 509F, HHH Building, Washington, DC 20201.

List of Subjects in 45 CFR Part 84

    Adoption and foster care, Civil rights, Childcare, Child welfare, 
Colleges and universities, Communications, Disabled, Discrimination, 
Emergency medical services, Equal access to justice, Federal financial 
assistance, Grant programs, Grant programs--health, Grant programs--
social programs, Health, Health care, Health care access, Health 
facilities, Health programs and activities, Incorporation by reference, 
Individuals with disabilities, Integration, Long term care, Medical 
care, Medical equipment, Medical facilities, Nondiscrimination, Public 
health.

    For the reasons set forth in the preamble, the Department of Health 
and Human Services amends 45 CFR part 84 as follows:

TITLE 45--Public Welfare

PART 84--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS 
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

0
1. The authority citation for part 84 is revised to read as follows:

    Authority:  29 U.S.C. 794.
    Subpart G also issued under 21 U.S.C. 1174; 42 U.S.C. 4581.


0
2. Revise the heading for part 84 to read as set forth above.

Subpart A--General Provisions

0
3. Revise Sec.  84.1 to read as follows:


Sec.  84.1  Purpose and broad coverage.

    (a) Purpose. The purpose of this part is to implement section 504 
of the Rehabilitation Act of 1973, as amended, which prohibits 
discrimination on the basis of disability in any program or activity 
receiving Federal financial assistance.
    (b) Broad coverage. The definition of ``disability'' in this part 
shall be

[[Page 40180]]

construed broadly in favor of expansive coverage to the maximum extent 
permitted by the terms of section 504. The primary object of attention 
in cases brought under section 504 should be whether entities receiving 
Federal financial assistance have complied with their obligations and 
whether discrimination has occurred, not whether the individual meets 
the definition of ``disability.'' The question of whether an individual 
meets the definition of ``disability'' under this part should not 
demand extensive analysis.

0
4. Revise Sec.  84.2 to read as follows:


Sec.  84.2  Application.

    (a) This part applies to each recipient of Federal financial 
assistance from the Department and to the recipient's programs or 
activities that involve individuals with disabilities in the United 
States. This part does not apply to the recipient's programs or 
activities outside the United States that do not involve individuals 
with disabilities in the United States.
    (b) 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.
    (c) 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 the provision to other persons not similarly situated or 
to other dissimilar circumstances.


Sec.  84.10  [Removed]

0
5. Remove Sec.  84.10.


Sec.  84.3  [Redesignated as Sec.  84.10]

0
6. Redesignate Sec.  84.3 as Sec.  84.10.

0
7. Add new Sec.  84.3 to read as follows:


Sec.  84.3  Relationship to other laws.

    This part does not invalidate or limit the remedies, rights, and 
procedures of any other Federal laws, or State or local laws (including 
State common law) that provide greater or equal protection for the 
rights of individuals with disabilities, or individuals associated with 
them.

0
8. Revise Sec.  84.4 to read as follows:


Sec.  84.4   Disability.

    (a) Definition--(1) Disability. Disability means, with respect to 
an individual:
    (i) A physical or mental impairment that substantially limits one 
or more of the major life activities of such individual;
    (ii) A record of such an impairment; or
    (iii) Being regarded as having such an impairment as described in 
paragraph (f) of this section.
    (2) Rules of construction. (i) The definition of ``disability'' 
shall be construed broadly in favor of expansive coverage, to the 
maximum extent permitted by the terms of section 504.
    (ii) An individual may establish coverage under any one or more of 
the three prongs of the definition of ``disability'' in paragraph 
(a)(1) of this section, the ``actual disability'' prong in paragraph 
(a)(1)(i) of this section, the ``record of'' prong in paragraph 
(a)(1)(ii) of this section, or the ``regarded as'' prong in paragraph 
(a)(1)(iii) of this section.
    (iii) Where an individual is not challenging a recipient's failure 
to provide reasonable modifications, it is generally unnecessary to 
proceed under the ``actual disability'' (paragraph (a)(1)(i) of this 
section) or ``record of'' (paragraph (a)(1)(ii) of this section) 
prongs, which require a showing of an impairment that substantially 
limits a major life activity or a record of such an impairment. In 
these cases, the evaluation of coverage can be made solely under the 
``regarded as'' (this paragraph (a)(1)(iii)) prong of the definition of 
disability, which does not require a showing of an impairment that 
substantially limits a major life activity or a record of such an 
impairment. An individual may choose, however, to proceed under the 
``actual disability'' or ``record of'' prong regardless of whether the 
individual is challenging a recipient's failure to provide reasonable 
modifications.
    (b) Physical or mental impairment--(1)(i) Physical or mental 
impairment is defined as any physiological disorder or condition, 
cosmetic disfigurement, or anatomical loss affecting one or more body 
systems, such as: neurological, musculoskeletal, special sense organs, 
respiratory (including speech organs), cardiovascular, reproductive, 
digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, 
and endocrine; or
    (ii) Any mental or psychological disorder such as intellectual 
disability, organic brain syndrome, mental health condition, and 
specific learning disability.
    (2) Physical or mental impairment includes, but is not limited to, 
contagious and noncontagious diseases and conditions such as the 
following: orthopedic, visual, speech and hearing impairments, and 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, intellectual disability, mental health 
condition, dyslexia and other specific learning disabilities, Attention 
Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection 
(whether symptomatic or asymptomatic), tuberculosis, substance use 
disorder, alcohol use disorder, and long COVID.
    (3) Physical or mental impairment does not include homosexuality or 
bisexuality.
    (c) Major life activities--(1) Definition. Major life activities 
include, but are not limited to:
    (i) Caring for oneself, performing manual tasks, seeing, hearing, 
eating, sleeping, walking, standing, sitting, reaching, lifting, 
bending, speaking, breathing, learning, reading, concentrating, 
thinking, writing, communicating, interacting with others, and working; 
and
    (ii) The operation of a major bodily function, such as the 
functions of the immune system, special sense organs and skin, normal 
cell growth, and digestive, genitourinary, bowel, bladder, 
neurological, brain, respiratory, circulatory, cardiovascular, 
endocrine, hemic, lymphatic, musculoskeletal, and reproductive systems. 
The operation of a major bodily function includes the operation of an 
individual organ within a body system.
    (2) Rules of construction. (i) In determining whether an impairment 
substantially limits a major life activity, the term major shall not be 
interpreted strictly to create a demanding standard.
    (ii) Whether an activity is a major life activity is not determined 
by reference to whether it is of central importance to daily life.
    (d) Substantially limits--(1) Rules of construction. The following 
rules of construction apply when determining whether an impairment 
substantially limits an individual in a major life activity.
    (i) The term ``substantially limits'' shall be construed broadly in 
favor of expansive coverage, to the maximum extent permitted by the 
terms of section 504. ``Substantially limits'' is not meant to be a 
demanding standard.
    (ii) The primary object of attention in cases brought under section 
504 should be whether recipients have complied with their obligations 
and whether discrimination has occurred, not the extent to which an 
individual's impairment substantially limits a major life activity. 
Accordingly, the threshold issue of whether an impairment

[[Page 40181]]

substantially limits a major life activity should not demand extensive 
analysis.
    (iii) An impairment that substantially limits one major life 
activity does not need to limit other major life activities to be 
considered a substantially limiting impairment.
    (iv) An impairment that is episodic or in remission is a disability 
if it would substantially limit a major life activity when active.
    (v) An impairment is a disability within the meaning of this part 
if it substantially limits the ability of an individual to perform a 
major life activity as compared to most people in the general 
population. An impairment does not need to prevent, or significantly or 
severely restrict, the individual from performing a major life activity 
to be considered substantially limiting. Nonetheless, not every 
impairment will constitute a disability within the meaning of this 
section.
    (vi) The determination of whether an impairment substantially 
limits a major life activity requires an individualized assessment. 
However, in making this assessment, the term ``substantially limits'' 
shall be interpreted and applied to require a degree of functional 
limitation that is lower than the standard for substantially limits 
applied prior to the ADA Amendments Act of 2008 (ADAAA).
    (vii) The comparison of an individual's performance of a major life 
activity to the performance of the same major life activity by most 
people in the general population usually will not require scientific, 
medical, or statistical evidence. Nothing in this paragraph (d)(1) is 
intended, however, to prohibit or limit the presentation of scientific, 
medical, or statistical evidence in making such a comparison where 
appropriate.
    (viii) The determination of whether an impairment substantially 
limits a major life activity shall be made without regard to the 
ameliorative effects of mitigating measures. However, the ameliorative 
effects of ordinary eyeglasses or contact lenses shall be considered in 
determining whether an impairment substantially limits a major life 
activity. Ordinary eyeglasses or contact lenses are lenses that are 
intended to fully correct visual acuity or to eliminate refractive 
error.
    (ix) The six-month ``transitory'' part of the ``transitory and 
minor'' exception in paragraph (f)(2) of this section does not apply to 
the ``actual disability'' (paragraph (a)(1)(i) of this section) or 
``record of'' (paragraph (a)(1)(ii) of this section) prongs of the 
definition of ``disability.'' The effects of an impairment lasting or 
expected to last less than six months can be substantially limiting 
within the meaning of this section for establishing an actual 
disability or a record of a disability.
    (2) Predictable assessments. (i) The principles set forth in the 
rules of construction in this section are intended to provide for 
generous coverage and application of section 504's prohibition on 
discrimination through a framework that is predictable, consistent, and 
workable for all individuals and entities with rights and 
responsibilities under section 504.
    (ii) Applying the principles in this section, the individualized 
assessment of some types of impairments as set forth in paragraph 
(d)(2)(iii) of this section will, in virtually all cases, result in a 
determination of coverage under paragraph (a)(1)(i) of this section 
(the ``actual disability'' prong) or paragraph (a)(1)(ii) of this 
section (the ``record of'' prong). Given their inherent nature, these 
types of impairments will, as a factual matter, virtually always be 
found to impose a substantial limitation on a major life activity. 
Therefore, with respect to these types of impairments, the necessary 
individualized assessment should be particularly simple and 
straightforward.
    (iii) For example, applying the principles of this section it 
should easily be concluded that the types of impairments set forth in 
paragraphs (d)(2)(iii)(A) through (K) of this section will, at a 
minimum, substantially limit the major life activities indicated. The 
types of impairments described in this paragraph (d)(2) may 
substantially limit additional major life activities (including major 
bodily functions) not explicitly listed in paragraphs (d)(2)(iii)(A) 
through (K).
    (A) Deafness substantially limits hearing;
    (B) Blindness substantially limits seeing;
    (C) Intellectual disability substantially limits brain function;
    (D) Partially or completely missing limbs or mobility impairments 
requiring the use of a wheelchair substantially limit musculoskeletal 
function;
    (E) Autism Spectrum Disorder substantially limits brain function;
    (F) Cancer substantially limits normal cell growth;
    (G) Cerebral palsy substantially limits brain function;
    (H) Diabetes substantially limits endocrine function;
    (I) Epilepsy, muscular dystrophy, and multiple sclerosis each 
substantially limits neurological function;
    (J) Human Immunodeficiency Virus (HIV) infection substantially 
limits immune function; and
    (K) Major depressive disorder, bipolar disorder, post-traumatic 
stress disorder, traumatic brain injury, obsessive compulsive disorder, 
and schizophrenia each substantially limits brain function.
    (3) Condition, manner, or duration. (i) At all times taking into 
account the principles set forth in the rules of construction in this 
section, in determining whether an individual is substantially limited 
in a major life activity, it may be useful in appropriate cases to 
consider, as compared to most people in the general population, the 
conditions under which the individual performs the major life activity; 
the manner in which the individual performs the major life activity; or 
the duration of time it takes the individual to perform the major life 
activity, or for which the individual can perform the major life 
activity.
    (ii) Consideration of facts such as condition, manner, or duration 
may include, among other things, consideration of the difficulty, 
effort or time required to perform a major life activity; pain 
experienced when performing a major life activity; the length of time a 
major life activity can be performed; or the way an impairment affects 
the operation of a major bodily function. In addition, the non-
ameliorative effects of mitigating measures, such as negative side 
effects of medication or burdens associated with following a particular 
treatment regimen, may be considered when determining whether an 
individual's impairment substantially limits a major life activity.
    (iii) In determining whether an individual has a disability under 
the ``actual disability'' (paragraph (a)(1)(i) of this section) or 
``record of'' (paragraph (a)(1)(ii) of this section) prongs of the 
definition of ``disability,'' the focus is on how a major life activity 
is substantially limited, and not on what outcomes an individual can 
achieve. For example, someone with a learning disability may achieve a 
high level of academic success, but may nevertheless be substantially 
limited in one or more major life activities, including, but not 
limited to, reading, writing, speaking, or learning because of the 
additional time or effort he or she must spend to read, write, speak, 
or learn compared to most people in the general population.
    (iv) Given the rules of construction set forth in this section, it 
may often be unnecessary to conduct an analysis involving most or all 
of the facts related to condition, manner, or duration. This is 
particularly true with respect to

[[Page 40182]]

impairments such as those described in paragraph (d)(2)(iii) of this 
section, which by their inherent nature should be easily found to 
impose a substantial limitation on a major life activity, and for which 
the individualized assessment should be particularly simple and 
straightforward.
    (4) Mitigating measures. Mitigating measures include, but are not 
limited to:
    (i) Medication, medical supplies, equipment, appliances, low-vision 
devices (defined as devices that magnify, enhance, or otherwise augment 
a visual image, but not including ordinary eyeglasses or contact 
lenses), prosthetics including limbs and devices, hearing aid(s) and 
cochlear implant(s) or other implantable hearing devices, mobility 
devices, and oxygen therapy equipment and supplies;
    (ii) Use of assistive technology;
    (iii) Reasonable modifications or auxiliary aids or services as 
defined in this part;
    (iv) Learned behavioral or adaptive neurological modifications; or
    (v) Psychotherapy, behavioral therapy, or physical therapy.
    (e) Has a record of such an impairment--(1) General. An individual 
has a record of such an impairment if the individual has a history of, 
or has been misclassified as having, a mental or physical impairment 
that substantially limits one or more major life activities.
    (2) Broad construction. Whether an individual has a record of an 
impairment that substantially limited a major life activity shall be 
construed broadly to the maximum extent permitted by section 504 and 
should not demand extensive analysis. An individual will be considered 
to fall within the prong in this paragraph (e) of the definition of 
``disability'' if the individual has a history of an impairment that 
substantially limited one or more major life activities when compared 
to most people in the general population or was misclassified as having 
had such an impairment. In determining whether an impairment 
substantially limited a major life activity, the principles articulated 
in paragraph (d)(1) of this section apply.
    (3) Reasonable modification. An individual with a record of a 
substantially limiting impairment may be entitled to a reasonable 
modification if needed and related to the past disability.
    (f) Is regarded as having such an impairment. The following 
principles apply under the ``regarded'' as prong of the definition of 
``disability'' in paragraph (a)(1)(iii) of this section:
    (1) Except as set forth in paragraph (f)(2) of this section, an 
individual is ``regarded as having such an impairment'' if the 
individual is subjected to a prohibited action because of an actual or 
perceived physical or mental impairment, whether or not that impairment 
substantially limits, or is perceived to substantially limit, a major 
life activity, even if the recipient asserts, or may or does ultimately 
establish, a defense to the action prohibited by section 504.
    (2) An individual is not ``regarded as having such an impairment'' 
if the recipient demonstrates that the impairment is, objectively, both 
``transitory'' and ``minor.'' A recipient may not defeat ``regarded 
as'' coverage of an individual simply by demonstrating that it 
subjectively believed the impairment was transitory and minor; rather, 
the recipient must demonstrate that the impairment is (in the case of 
an actual impairment) or would be (in the case of a perceived 
impairment), objectively, both ``transitory'' and ``minor.'' For 
purposes of this section, ``transitory'' is defined as lasting or 
expected to last six months or less.
    (3) Establishing that an individual is ``regarded as having such an 
impairment'' does not, by itself, establish liability. Liability is 
established under section 504 only when an individual proves that a 
recipient discriminated on the basis of disability within the meaning 
of section 504.
    (g) Exclusions. The term ``disability'' does not include the terms 
set forth at 29 U.S.C. 705(20)(F).


Sec.  84.6  [Amended]

0
9. Amend Sec.  84.6 by:
0
a. Removing the word ``handicap'' and adding in its place the word 
``disability'' in paragraphs (a)(1) and (2); and
0
b. Removing the words ``handicapped persons'' and adding in their place 
the words ``persons with disabilities'' wherever they occur in 
paragraphs (a)(3), (b), and (c).

0
10. Revise Sec.  84.8 to read as follows:


Sec.  84.8  Notice.

    A recipient shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons information 
regarding the provisions of this part and its applicability to the 
programs or activities of the recipient, and make such information 
available to them in such manner as the head of the recipient or their 
designee finds necessary to apprise such persons of the protections 
against discrimination assured them by section 504 and this part.

0
11. Revise and republish newly redesignated Sec.  84.10 to read as 
follows:


Sec.  84.10  Definitions.

    As used in this part, the term:
    2004 ADA Accessibility Guidelines (ADAAG) means the requirements 
set forth in appendices B and D to 36 CFR part 1191 (2009).
    2010 Standards means the 2010 ADA Standards for Accessible Design, 
which consist of the 2004 ADAAG and the requirements contained in 28 
CFR 35.151.
    ADA means the Americans with Disabilities Act (Pub. L. 101-336, 104 
Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611), including 
changes made by the ADA Amendments Act of 2008 (Pub. L. 110-325), which 
became effective on January 1, 2009.
    Applicant means one who submits an application, request, or plan 
required to be approved by the designated Department official or by a 
primary recipient, as a condition of eligibility for Federal financial 
assistance.
    Architectural Barriers Act means the Architectural Barriers Act (42 
U.S.C. 4151-4157), including the Architectural Barriers Act 
Accessibility Standards at 41 CFR 102-76.60 through 102-76.95.
    Archived web content means web content that--
    (1) Was created before the date the recipient is required to comply 
with Sec.  84.84, reproduces paper documents created before the date 
the recipient is required to comply with Sec.  84.84, or reproduces the 
contents of other physical media created before the date the recipient 
is required to comply with Sec.  84.84;
    (2) Is retained exclusively for reference, research, or 
recordkeeping;
    (3) Is not altered or updated after the date of archiving; and
    (4) Is organized and stored in a dedicated area or areas clearly 
identified as being archived.
    Auxiliary aids and services include:
    (1) Qualified interpreters on-site or through video remote 
interpreting (VRI) services; notetakers; real-time computer-aided 
transcription services; written materials; exchange of written notes; 
telephone handset amplifiers; assistive listening devices; assistive 
listening systems; telephones compatible with hearing aids; closed 
caption decoders; open and closed captioning, including real-time 
captioning; voice, text, and video-based telecommunications products 
and systems, including text telephones (TTYs), videophones, and 
captioned telephones, or equally effective telecommunications devices;

[[Page 40183]]

videotext displays; accessible electronic and information technology; 
or other effective methods of making aurally delivered information 
available to individuals who are deaf or hard of hearing;
    (2) Qualified readers; taped texts; audio recordings; Braille 
materials and displays; screen reader software; magnification software; 
optical readers; secondary auditory programs (SAP); large print 
materials; accessible electronic and information technology; or other 
effective methods of making visually delivered materials available to 
individuals who are blind or have low vision;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    Companion means a family member, friend, or associate of an 
individual seeking access to a program or activity of a recipient, who, 
along with such individual, is an appropriate person with whom the 
recipient should communicate.
    Conventional electronic documents means web content or content in 
mobile apps that is in the following electronic file formats: portable 
document formats (PDF), word processor file formats, presentation file 
formats, and spreadsheet file formats.
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or that continuing use is a real and ongoing 
problem.
    Department means the Department of Health and Human Services.
    Direct threat means:
    (1) Except as provided in paragraph (2) of this definition, a 
significant risk to the health or safety of others that cannot be 
eliminated by a modification of policies, practices, or procedures, or 
by the provision of auxiliary aids or services as provided in Sec.  
84.75.
    (2) With respect to employment as provided in Sec.  84.12, the term 
as defined by the Equal Employment Opportunity Commission's regulation 
implementing title I of the Americans with Disabilities Act of 1990, at 
29 CFR 1630.2(r).
    Director means the Director of the Office for Civil Rights.
    Disability means:
    (1) Except as provided in paragraph (2) of this definition, the 
definition of disability found at Sec.  84.4.
    (2) With respect to employment, the definition of disability found 
at 29 CFR 1630.2.
    Drug means a controlled substance, as defined in schedules I 
through V of section 202 of the Controlled Substances Act (21 U.S.C. 
812).
    Existing facility means a facility in existence on any given date, 
without regard to whether the facility may also be considered newly 
constructed or altered under this part.
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, rolling stock or other conveyances, roads, walks, 
passageways, parking lots, or other real or personal property, 
including the site where the building, property, structure, or 
equipment is located.
    Federal financial assistance means any grant, cooperative 
agreement, loan, contract (other than a direct Federal procurement 
contract or a contract of insurance or guaranty), subgrant, contract 
under a grant or any other arrangement by which the Department provides 
or otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel;
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government; and
    (4) Any other thing of value by way of grant, loan, contract, or 
cooperative agreement.
    Foster care means 24-hour substitute care for children placed away 
from their parents or guardians and for whom the State agency has 
placement and care responsibility. This includes, but is not limited 
to, placements in foster family homes, foster homes of relatives, group 
homes, emergency shelters, residential facilities, childcare 
institutions, and pre-adoptive homes. A child is in foster care in 
accordance with this definition regardless of whether the foster care 
facility is licensed and payments are made by the State or local agency 
for the care of the child, whether adoption subsidy payments are being 
made prior to the finalization of an adoption, or whether there is 
Federal matching of any payments that are made.
    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act (21 U.S.C. 812). The term illegal use of drugs does not 
include the use of a drug taken under supervision by a licensed health 
care professional, or other uses authorized by the Controlled 
Substances Act or other provisions of Federal law.
    Individual with a disability means a person who has a disability. 
The term individual with a disability does not include an individual 
who is currently engaging in illegal use of drugs when a recipient acts 
on the basis of such use.
    Kiosks means self-service transaction machines made available by 
recipients at set physical locations for the independent use of 
patients or program participants in health and human service programs 
or activities. They often consist of a screen and an input device--
either a keyboard, touch screen, or similar device--onto which the 
program participant independently types in or otherwise enters 
information. In health and human service programs, recipients often 
make kiosks available so that patients or program participants can 
check in, provide information for the receipt of services, procure 
services, have their vital signs taken, or perform other similar 
actions.
    Medical diagnostic equipment (MDE) means equipment used in, or in 
conjunction with, medical settings by health care providers for 
diagnostic purposes. MDE includes, for example, 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.
    Mobile applications (apps) means software applications that are 
downloaded and designed to run on mobile devices, such as smartphones 
and tablets.
    Most integrated setting means a setting that provides individuals 
with disabilities the opportunity to interact with nondisabled persons 
to the fullest extent possible. These settings provide opportunities to 
live, work, and receive services in the greater community, like 
individuals without disabilities; are located in mainstream society; 
offer access to community activities and opportunities at times, 
frequencies and with persons of an individual's choosing; and afford 
individuals choice in their daily life activities.
    Other power-driven mobility device means any mobility device 
powered by batteries, fuel, or other engines--whether or not designed 
primarily for use by individuals with mobility disabilities--that is 
used by individuals with mobility disabilities for the purpose of 
locomotion, including golf cars, electronic personal assistance 
mobility devices (EPAMDs), such as the Segway[supreg] PT, or any 
mobility device designed to operate in areas without defined pedestrian 
routes, but that is not

[[Page 40184]]

a wheelchair within the meaning of this section. This definition does 
not apply to Federal wilderness areas; wheelchairs in such areas are 
defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).
    Parents means biological or adoptive parents or legal guardians, as 
determined by applicable State law.
    Program or activity means all of the operations of any entity 
described in paragraphs (1) through (4) of this definition, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other 
State or local government entity) to which the assistance is extended, 
in the case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, a 
public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of career and technical education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (1), (2), or (3) of this definition.
    Prospective parents means individuals who are seeking to become 
foster or adoptive parents.
    Qualified individual with a disability means:
    (1) Except as provided in paragraphs (2) through (4) of this 
definition, an individual with a disability who, with or without 
reasonable modifications to rules, policies, or practices, the removal 
of architectural, communication, or transportation barriers, or the 
provision of auxiliary aids and services, meets the essential 
eligibility requirements for the receipt of services or the 
participation in programs or activities provided by a recipient; and
    (2) With respect to employment, an individual with a disability who 
meets the definition of ``qualified'' in the Equal Employment 
Opportunity Commission's regulation implementing title I of the 
Americans with Disabilities Act of 1990, 29 CFR 1630.2(m).
    (3) With respect to childcare, preschool, elementary, secondary, or 
adult educational services, a person with a disability--
    (i) Of an age during which nondisabled persons are provided such 
services;
    (ii) Of any age during which it is mandatory under State law to 
provide such services to persons with a disability; or
    (iii) To whom a State is required to provide a free appropriate 
public education under the Individuals with Disabilities Education Act; 
and
    (4) With respect to postsecondary and career and technical 
education services, an individual with a disability who, with or 
without reasonable modifications to rules, policies, or practices, the 
removal of architectural, communication, or transportation barriers, or 
the provision of auxiliary aids and services, meets the essential 
eligibility requirements for the receipt of services or the 
participation in the recipient's program or activity.
    Qualified interpreter means an interpreter who, via an on-site 
appearance or through a video remote interpreting (VRI) service, is 
able to interpret effectively, accurately, and impartially, both 
receptively and expressively, using any necessary specialized 
vocabulary. Qualified interpreters include, for example, sign language 
interpreters, oral transliterators, and cued-language transliterators.
    Qualified reader means a person who is able to read effectively, 
accurately, and impartially using any necessary specialized vocabulary.
    Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of 
the assistance.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended.
    Section 508 Standards means the standards for Information and 
Communications Technologies (ICT) promulgated at 36 CFR part 1194 by 
the U.S. Access Board per section 508 of the Rehabilitation Act (29 
U.S.C. 794d as amended).
    Service animal means any dog that is individually trained to do 
work or perform tasks for the benefit of an individual with a 
disability, including a physical, sensory, psychiatric, intellectual, 
or other mental disability. Other species of animals, whether wild or 
domestic, trained or untrained, are not service animals for the 
purposes of this definition. The work or tasks performed by a service 
animal must be directly related to the individual's disability. 
Examples of work or tasks include, but are not limited to, assisting 
individuals who are blind or have low vision with navigation and other 
tasks, alerting individuals who are deaf or hard of hearing to the 
presence of people or sounds, providing non-violent protection or 
rescue work, pulling a wheelchair, assisting an individual during a 
seizure, alerting individuals to the presence of allergens, retrieving 
items such as medicine or the telephone, providing physical support and 
assistance with balance and stability to individuals with mobility 
disabilities, and helping persons with mental and neurological 
disabilities by preventing or interrupting impulsive or harmful 
behaviors. The crime deterrent effects of an animal's presence and the 
provision of emotional support, well-being, comfort, or companionship 
do not constitute work or tasks for the purposes of this definition.
    Standards for Accessible Medical Diagnostic Equipment (``Standards 
for Accessible MDE'') means the standards promulgated by the 
Architectural and Transportation Barriers Compliance Board (Access 
Board) under section 510 of the Rehabilitation Act of 1973, as amended, 
found at 36 CFR part 1195 (as of Jan. 9, 2017), with the exception of 
M301.2.2 and M302.2.2.
    State includes, in addition to each of the several States of the 
United States, the District of Columbia, the Commonwealth of Puerto 
Rico, the United States Virgin Islands, Guam, American Samoa, and the 
Commonwealth of the Northern Mariana Islands.
    Ultimate beneficiary means one among a class of persons who are 
entitled to benefit from, or otherwise participate in, a program or 
activity receiving Federal financial assistance and to whom the 
protections of this part

[[Page 40185]]

extend. The ultimate beneficiary class may be the general public or 
some narrower group of persons.
    User agent means any software that retrieves and presents web 
content for users.
    Video remote interpreting (VRI) service means an interpreting 
service that uses video conference technology over dedicated lines or 
wireless technology offering high-speed, wide-bandwidth video 
connection that delivers high-quality video images as provided in Sec.  
84.77(d).
    WCAG 2.1 means the Web Content Accessibility Guidelines (WCAG) 2.1, 
W3C Recommendation 05 June 2018, https://www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. WCAG 2.1 is incorporated by 
reference elsewhere in this part (see Sec. Sec.  84.84 and 84.86).
    Web content means the information and sensory experience to be 
communicated to the user by means of a user agent, including code or 
markup that defines the content's structure, presentation, and 
interactions. Examples of web content include text, images, sounds, 
videos, controls, animations, and conventional electronic documents.
    Wheelchair means a manually-operated or power-driven device 
designed primarily for use by an individual with a mobility disability 
for the main purpose of indoor, or of both indoor and outdoor 
locomotion. This definition does not apply to Federal wilderness areas; 
wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 
42 U.S.C. 12207(c)(2).

0
12. Revise subpart B to read as follows:
Subpart B--Employment Practices
Sec.
84.16 Discrimination prohibited.
84.17-84.20 [Reserved]

Subpart B--Employment Practices


Sec.  84.16  Discrimination prohibited.

    (a) No qualified individual with a disability shall, on the basis 
of disability, be subjected to discrimination in employment under any 
program or activity receiving Federal financial assistance from the 
Department.
    (b) The standards used to determine whether paragraph (a) of this 
section has been violated shall be the standards applied under title I 
of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12111 
et seq., and, as such sections relate to employment, the provisions of 
sections 501 through 504 and 511 of the ADA of 1990, as amended 
(codified at 42 U.S.C. 12201-12204, 12210), as implemented in the Equal 
Employment Opportunity Commission's regulation at 29 CFR part 1630.


Sec. Sec.  84.17-84.20   [Reserved]

Subpart C--Program Accessibility

0
13. Revise Sec.  84.21 to read as follows:


Sec.  84.21  Discrimination prohibited.

    Except as otherwise provided in Sec.  84.22, no qualified 
individual with a disability shall, because a recipient's facilities 
are inaccessible to or unusable by individuals with disabilities, be 
excluded from participation in, or be denied the benefits of the 
programs or activities of a recipient, or be subjected to 
discrimination by any recipient.

0
14. Amend Sec.  84.22 by:
0
a. Revising paragraphs (a) and (b);
0
b. Removing the words ``handicapped person'' and adding in their place 
the words ``person with a disability'' wherever they occur in paragraph 
(c);
0
c. Removing the words ``handicapped persons'' and adding in their place 
the words ``persons with disabilities'' wherever they occur in 
paragraphs (e) introductory text, (e)(1), and (f); and
0
d. Adding paragraph (g).
    The revisions and addition read as follows:


Sec.  84.22  Existing facilities.

    (a) General. A recipient shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with disabilities. This 
paragraph (a) does not--
    (1) Necessarily require a recipient to make each of its existing 
facilities accessible to and usable by individuals with disabilities; 
or
    (2) Require a recipient to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where a recipient's personnel believe that the proposed 
action would fundamentally alter the program or activity or would 
result in undue financial and administrative burdens, the recipient has 
the burden of proving that compliance with this paragraph (a) would 
result in such an alteration or burdens. The decision that compliance 
would result in such alteration or burdens must be made by the head of 
the recipient or their designee after considering all the recipient's 
resources available for use in the funding and operation of the program 
or activity, and must be accompanied by a written statement of the 
reasons for reaching that conclusion. If an action would result in such 
an alteration or such burdens, the recipient shall take any other 
action that would not result in such an alteration or such burdens but 
would nevertheless ensure that individuals with disabilities receive 
the benefits or services provided by the recipient.
    (b) Methods. A recipient may comply with the requirements of this 
section through such means as redesign or acquisition of equipment, 
reassignment of services to accessible buildings, assignment of aides 
to beneficiaries, home visits, delivery of services at alternate 
accessible sites, alteration of existing facilities and construction of 
new facilities, use of accessible rolling stock or other conveyances, 
or any other methods that result in making its programs or activities 
readily accessible to and usable by individuals with disabilities. A 
recipient is not required to make structural changes in existing 
facilities where other methods are effective in achieving compliance 
with this section. A recipient, in making alterations to existing 
buildings, shall meet the accessibility requirements of Sec.  84.23. In 
choosing among available methods for meeting the requirements of this 
section, a recipient shall give priority to those methods that offer 
programs and activities to qualified individuals with disabilities in 
the most integrated setting appropriate.
* * * * *
    (g) Safe harbor. Elements that have not been altered in existing 
facilities on or after July 8, 2024, and that comply with the 
corresponding technical and scoping specifications for those elements 
in the American National Standard Specification (ANSI) (ANSI A117.1-
1961(R1971)) for facilities constructed between June 3, 1977, and 
January 18, 1991) or for those elements in the Uniform Federal 
Accessibility Standards (UFAS), appendix A to 41 CFR part 101-19, 
subpart 101-19.6 (revised as of July 1, 2002), for those facilities 
constructed between January 18, 1991, and July 8, 2024, are not 
required to be modified to comply with the requirements set forth in 
the 2010 Standards.

0
15. Revise Sec.  84.23 to read as follows:


Sec.  84.23  New construction and alterations.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a recipient shall be 
designed and constructed in such manner that the facility or part of 
the facility is readily accessible to and usable by individuals

[[Page 40186]]

with disabilities, if the construction was commenced after June 3, 
1977.
    (b) Alterations. Each facility or part of a facility altered by, on 
behalf of, or for the use of a recipient in a manner that affects or 
could affect the usability of the facility or part of the facility 
shall, to the maximum extent feasible, be altered in such manner that 
the altered portion of the facility is readily accessible to and usable 
by individuals with disabilities, if the alteration was commenced after 
June 3, 1977.
    (c) Accessibility standards and compliance dates for recipients 
that are public entities. (1) The accessibility standards and 
compliance dates in this paragraph (c) apply to recipients that are 
public entities. Public entities are any State or local government; any 
department, agency, special purpose district, or other instrumentality 
of a State or States or local government; and the National Railroad 
Passenger Corporation, and any commuter authority (as defined in 
section 103(8) of the Rail Passenger Service Act). (45 U.S.C. 541)
    (2) If physical construction or alterations commenced after June 3, 
1977, but before January 18, 1991, then construction and alterations 
subject to this section shall be deemed in compliance with this section 
if they meet the requirements of the ANSI Standards (ANSI A117.1-
1961(R1971)) (ANSI). Departures from particular requirements of ANSI by 
the use of other methods are permitted when it is clearly evident that 
equivalent access to the facility or part of the facility is provided.
    (3) If physical construction or alterations commence on or after 
January 18, 1991, but before July 8, 2024, then new construction and 
alterations subject to this section shall be deemed in compliance with 
this section if they meet the requirements of the Uniform Federal 
Accessibility Standards (UFAS), appendix A to 41 CFR part 101-19, 
subpart 101-19.6 (revised as of July 1, 2002). Departures from 
particular requirements of UFAS by the use of other methods shall be 
permitted when it is clearly evident that equivalent access to the 
facility or part of the facility is thereby provided.
    (4) For physical construction or alterations that commence on or 
after July 8, 2024, but before May 9, 2025, then new construction and 
alterations subject to this section may comply with either UFAS or the 
2010 Standards. Departures from particular requirements of either 
standard by the use of other methods shall be permitted when it is 
clearly evident that equivalent access to the facility or part of the 
facility is thereby provided.
    (5) If physical construction or alterations commence on or after 
May 9, 2025, then new construction and alterations subject to this 
section shall comply with the 2010 Standards.
    (6) For the purposes of this section, ceremonial groundbreaking or 
razing of structures prior to site preparation do not commence physical 
construction or alterations.
    (d) Accessibility standards and compliance dates for recipients 
that are private entities. (1) The accessibility standards and 
compliance dates in this paragraph (d) apply to recipients that are 
private entities. Private entities are any person or entity other than 
a public entity.
    (2) New construction and alterations subject to this section where 
the date when the last application for a building permit or permit 
extension is certified to be complete by a State, county, or local 
government or, in those jurisdictions where the government does not 
certify completion of applications, if the date when the last 
application for a building permit or permit extension is received by 
the State, county, or local government between June 3, 1977, and 
January 18, 1991, or if no permit is required, if the start of physical 
construction or alterations occurs between June 3, 1977, and January 
18, 1991, shall be deemed in compliance with this section if they meet 
the requirements of ANSI. Departures from particular requirements of 
ANSI by the use of other methods are permitted when it is clearly 
evident that equivalent access to the facility or part of the facility 
is provided.
    (3) New construction and alterations subject to this section shall 
comply with UFAS if the date when the last application for a building 
permit or permit extension is certified to be complete by a State, 
county, or local government (or, in those jurisdictions where the 
government does not certify completion of applications, if the date 
when the last application for a building permit or permit extension is 
received by the State, county, or local government) is on or after 
January 18, 1991, and before July 8, 2024, or if no permit is required, 
if the start of physical construction or alterations occurs on or after 
January 18, 1991, and before July 8, 2024. Departures from particular 
requirements of UFAS by the use of other methods are permitted when it 
is clearly evident that equivalent access to the facility or part of 
the facility is provided.
    (4) New construction and alterations subject to this section shall 
comply either with UFAS or the 2010 Standards if the date when the last 
application for a building permit or permit extension is certified to 
be complete by a State, county, or local government (or, in those 
jurisdictions where the government does not certify completion of 
applications, if the date when the last application for a building 
permit or permit extension is received by the State, county, or local 
government) is on or after July 8, 2024, and before May 9, 2025, or if 
no permit is required, if the start of physical construction or 
alterations occurs on or after July 8, 2024, and before May 9, 2025. 
Departures from particular requirements of either standard by the use 
of other methods shall be permitted when it is clearly evident that 
equivalent access to the facility or part of the facility is thereby 
provided.
    (5) New construction and alterations subject to this section shall 
comply with the 2010 Standards if the date when the last application 
for a building permit or permit extension is certified to be complete 
by a State, county, or local government (or, in those jurisdictions 
where the government does not certify completion of applications, if 
the date when the last application for a building permit or permit 
extension is received by the State, county, or local government) is on 
or after May 9, 2025, or if no permit is required, if the start of 
physical construction or alterations occurs on or after May 9, 2025.
    (6) For the purposes of this section, ceremonial groundbreaking or 
razing of structures prior to site preparation do not commence physical 
construction or alterations.
    (e) Noncomplying new construction and alterations. (1) Newly 
constructed or altered facilities or elements covered by paragraph (a) 
or (b) of this section that were constructed or altered between June 3, 
1977, and January 18, 1991, and that do not comply with ANSI shall be 
made accessible in accordance with the 2010 Standards.
    (2) Newly constructed or altered facilities or elements covered by 
paragraph (a) or (b) of this section that were constructed or altered 
on or after January 18, 1991, and before May 9, 2025, and that do not 
comply with UFAS shall before May 9, 2025, be made accessible in 
accordance with either UFAS or the 2010 Standards.
    (3) Newly constructed or altered facilities or elements covered by 
paragraph (a) or (b) of this section that were constructed or altered 
before May 9, 2025, and that do not comply with ANSI (for facilities 
constructed or altered between June 3, 1977, and January 18, 1991) or 
UFAS (for facilities

[[Page 40187]]

constructed or altered on or after January 18, 1991) shall, on or after 
May 9, 2025, be made accessible in accordance with the 2010 Standards.
    (f) Public buildings or facilities requirements. New construction 
and alterations of buildings or facilities undertaken in compliance 
with the 2010 Standards will comply with the scoping and technical 
requirements for a ``public building or facility'' regardless of 
whether the recipient is a public entity as defined in 28 CFR 35.104 or 
a private entity.
    (g) Compliance with the Architectural Barriers Act of 1968. Nothing 
in this section relieves recipients whose facilities are covered by the 
Architectural Barriers Act, from their responsibility of complying with 
the requirements of the Architectural Barriers Act and its implementing 
regulations, 41 CFR 102-76.60 through 102-76.95 (General Services 
Administration); 39 CFR part 255 (U.S. Postal Service); 24 CFR part 40 
(U.S. Department of Housing and Urban Development); and the U.S. 
Department of Defense ``Policy Memorandum for Secretaries of the 
Military Departments: Access for People with Disabilities'' (October 
31, 2008).
    (h) Mechanical rooms. For purposes of this section, section 
4.1.6(1)(g) of UFAS will be interpreted to exempt from the requirements 
of UFAS only mechanical rooms and other spaces that, because of their 
intended use, will not require accessibility to the public or 
beneficiaries or result in the employment or residence therein of 
individuals with physical disabilities.

0
16. Revise the heading of subpart D to read as follows:

Subpart D--Childcare, Preschool, Elementary and Secondary, and 
Adult Education

0
17. Revise Sec.  84.31 to read as follows:


Sec.  84.31  Application of this subpart.

    This subpart applies to childcare, preschool, elementary and 
secondary, and adult education programs or activities that receive 
Federal financial assistance and to recipients that operate, or that 
receive Federal financial assistance for the operation of, such 
programs or activities.


Sec. Sec.  84.32 through 84.37   [Removed and Reserved]

0
18. Remove and reserve Sec. Sec.  84.32 through 84.37.

0
19. Revise Sec.  84.38 to read as follows:


Sec.  84.38  Childcare, preschool, elementary and secondary, and adult 
education.

    A recipient to which this subpart applies that provides childcare, 
preschool, elementary and secondary, or adult education may not, on the 
basis of disability, exclude qualified individuals with disabilities 
and shall take into account the needs of such persons in determining 
the aids, benefits, or services to be provided.


Sec.  84.39  [Removed and Reserved]

0
20. Remove and reserve Sec.  84.39.

Subpart E--Postsecondary Education


Sec.  84.42  [Amended]

0
21. Amend Sec.  84.42 by:
0
a. Removing the word ``handicap'' and adding in its place the word 
``disability'' in paragraphs (a) and (b)(3)(i);
0
b. Removing the words ``handicapped persons'' and adding in their place 
the words ``persons with disabilities'' wherever they occur in 
paragraphs (a), (b)(1), (b)(2) introductory text, and (b)(3)(iii);
0
c. Removing the words ``handicapped person'' and ``handicaps'' and 
adding in their places the words ``person with a disability'' and 
``disabilities'', respectively, in paragraph (b)(4); and
0
d. Removing the word ``handicapped'' and adding in its place the word 
``disabled'' in paragraph (c) introductory text.


Sec.  84.43  [Amended]

0
22. Amend Sec.  84.43 by:
0
a. Removing the words ``handicapped student'' and ``handicap'' and 
adding in their places the words ``student with a disability'' and 
``disability'', respectively, in paragraphs (a) and (c); and
0
b. Removing the words ``handicapped persons'' and adding in their place 
the words ``persons with disabilities'' in paragraph (b).


Sec.  84.44  [Amended]

0
23. Amend Sec.  84.44 by:
0
a. Removing the word ``handicap'' and adding in its place the word 
``disability'' in paragraphs (a) and (c);
0
b. Removing the words ``handicapped applicant or student'' and adding 
in their place the words ``applicant or student with a disability'' in 
paragraph (a);
0
c. Removing the words ``handicapped students'' and adding in their 
place the words ``students with disabilities'' wherever they occur in 
paragraph (b); and
0
d. Removing the words ``handicapped student'' and adding in their place 
the words ``student with a disability'' in paragraph (d)(1).


Sec.  84.45  [Amended]

0
24. Amend Sec.  84.45 by:
0
a. Revising paragraph (a); and
0
b. Removing the word ``handicap'' and adding in its place the word 
``disability'' in paragraph (b).
    The revision reads as follows:


Sec.  84.45  Housing.

    (a) Housing provided by the recipient. A recipient that provides 
housing to its students without disabilities shall provide comparable, 
convenient, and accessible housing to students with disabilities at the 
same cost as to others. At the end of the transition period provided 
for in subpart C of this part, such housing shall be available in 
sufficient quantity and variety so that the scope of students with 
disabilities' choice of living accommodations is, as a whole, 
comparable to that of students without disabilities.
* * * * *


Sec.  84.46  [Amended]

0
25. Amend Sec.  84.46 by:
0
a. Removing the word ``handicap'' and adding in its place the word 
``disability'' wherever it occurs in paragraph (a);
0
b. Removing the words ``handicapped persons'' and adding in their place 
the words ``persons with disabilities'' wherever they occur in 
paragraph (a)(1); and
0
c. Removing the words ``nonhandicapped persons'' and adding in their 
place the words ``persons without disabilities'' in paragraph (a)(1).


Sec.  84.47  [Amended]

0
26. Amend Sec.  84.47 by:
0
a. Removing the word ``handicap'' and adding in its place the word 
``disability'' in paragraphs (a)(1) and (b);
0
b. Removing the words ``handicapped students'' and adding in their 
place the words ``students with disabilities'' in paragraphs (a)(1) and 
(2) and (b);
0
c. Removing the words ``handicapped student'' and adding in their place 
the words ``student with a disability'' in paragraph (a)(2); and
0
d. Removing the words ``nonhandicapped students'' and ``handicapped 
persons'' and adding in their places the words ``students without 
disabilities'' and ``persons with disabilities'', respectively, in 
paragraph (b).

Subpart F--Health, Welfare, and Social Services


Sec.  84.52  [Amended]

0
27. Amend Sec.  84.52 by:
0
a. Removing the words ``handicapped person'' and adding in its place 
the

[[Page 40188]]

words ``person with a disability'' in paragraphs (a)(1) through (3);
0
b. Removing the words ``nonhandicapped persons'' and adding in their 
place the words ``persons without disabilities'' in paragraph (a)(2);
0
c. Removing the words ``handicapped persons'' and adding in their place 
the words ``persons with disabilities'' wherever they occur in 
paragraphs (a)(4) and (5) and (b);
0
d. Removing the word ``handicap'' and adding in its place the word 
``disability'' in paragraph (b); and
0
e. Removing paragraphs (c) and (d).

0
28. Revise Sec.  84.53 to read as follows:


Sec.  84.53  Individuals with substance and alcohol use disorders.

    A recipient to which this subpart applies that operates a health 
care facility may not discriminate in admission or treatment against an 
individual with a substance or alcohol use disorder who has a medical 
condition, because of the person's substance or alcohol use disorder.

0
29. Revise Sec.  84.54 to read as follows:


Sec.  84.54  Education of institutionalized persons.

    A recipient to which this subpart applies and that provides aids, 
benefits, or services to persons who are institutionalized because of 
disability shall ensure that each qualified individual with 
disabilities, as defined in Sec.  84.10, in its program or activity is 
provided an appropriate education, consistent with the Department of 
Education section 504 regulations at 34 CFR 104.33(b). Nothing in this 
section shall be interpreted as altering in any way the obligations of 
recipients under subpart D of this part.


Sec.  84.55  [Amended]

0
30. Amend Sec.  84.55 by:
0
a. Removing the words ``handicapped infants'' and adding in their place 
the words ``infants with disabilities'' in the section heading, 
paragraph (a), and paragraph (f) introductory text;
0
b. Removing the words ``handicapped infants'' and adding in their place 
the words ``infants with disabilities'' in paragraphs (f)(1)(i), 
(f)(1)(ii)(A), and (f)(1)(ii)(C);
0
c. Removing the word ``handicaps'' and adding in its place the word 
``disabilities'' in paragraph (f)(1)(ii)(C); and
0
d. Removing and reserving paragraphs (b) through (e).

0
31. Add Sec. Sec.  84.56 and 84.57 to read as follows:


Sec.  84.56  Medical treatment.

    (a) Discrimination prohibited. No qualified individual with a 
disability shall, on the basis of disability, be subjected to 
discrimination in medical treatment under any program or activity that 
receives Federal financial assistance, including in the allocation or 
withdrawal of any good, benefit, or service.
    (b) Specific prohibitions. The general prohibition in paragraph (a) 
of this section includes the following specific prohibitions:
    (1) Denial of medical treatment. A recipient may not deny or limit 
medical treatment to a qualified individual with a disability when the 
denial is based on:
    (i) Bias or stereotypes about a patient's disability;
    (ii) Judgments that the individual will be a burden on others due 
to their disability, including, but not limited to caregivers, family, 
or society; or
    (iii) A belief that the life of a person with a disability has 
lesser value than the life of a person without a disability, or that 
life with a disability is not worth living.
    (2) Denial of treatment for a separate symptom or condition. Where 
a qualified individual with a disability or their authorized 
representative seeks or consents to treatment for a separately 
diagnosable symptom or medical condition (whether or not that symptom 
or condition is a disability under this part or is causally connected 
to the individual's underlying disability), a recipient may not deny or 
limit clinically appropriate treatment if it would be offered to a 
similarly situated individual without an underlying disability.
    (3) Provision of medical treatment. A recipient may not, on the 
basis of disability, provide a medical treatment to an individual with 
a disability where it would not provide the same treatment to an 
individual without a disability, unless the disability impacts the 
effectiveness, or ease of administration of the treatment itself, or 
has a medical effect on the condition to which the treatment is 
directed.
    (c) Construction--(1) Professional judgment in treatment. (i) 
Nothing in this section requires the provision of medical treatment 
where the recipient has a legitimate, nondiscriminatory reason for 
denying or limiting that service or where the disability renders the 
individual not qualified for the treatment.
    (ii) Circumstances in which the recipient has a legitimate, 
nondiscriminatory reason for denying or limiting a service or where the 
disability renders the individual not qualified for the treatment may 
include circumstances in which the recipient typically declines to 
provide the treatment to any individual, or reasonably determines based 
on current medical knowledge or the best available objective evidence 
that such medical treatment is not clinically appropriate for a 
particular individual. The criteria in paragraphs (b)(1)(i) through 
(iii) of this section are not a legitimate nondiscriminatory reason for 
denying or limiting medical treatment and may not be a basis for a 
determination that an individual is not qualified for the treatment, or 
that a treatment is not clinically appropriate for a particular 
individual.
    (2) Consent. (i) Nothing in this section requires a recipient to 
provide medical treatment to an individual where the individual, or 
their authorized representative, does not consent to that treatment.
    (ii) Nothing in this section allows a recipient to discriminate 
against a qualified individual with a disability on the basis of 
disability in seeking to obtain consent from an individual or their 
authorized representative for the recipient to provide, withhold, or 
withdraw treatment.
    (3) Providing information. Nothing in this section precludes a 
provider from providing an individual with a disability or their 
authorized representative with information regarding the implications 
of different courses of treatment based on current medical knowledge or 
the best available objective evidence.


Sec.  84.57  Value assessment methods.

    A recipient shall not, directly or through contractual, licensing, 
or other arrangements, use any measure, assessment, or tool that 
discounts the value of life extension on the basis of disability to 
deny or afford an unequal opportunity to qualified individuals with 
disabilities with respect to the eligibility or referral for, or 
provision or withdrawal of any aid, benefit, or service, including the 
terms or conditions under which they are made available.

0
32. Add Sec.  84.60 to read as follows:


Sec.  84.60  Children, parents, caregivers, foster parents, and 
prospective parents in the child welfare system.

    (a) Discriminatory actions prohibited. (1) No qualified individual 
with a disability shall, on the basis of disability, be excluded from 
participation in, be denied the benefits of, or otherwise be subjected 
to discrimination under any child welfare program or activity that 
receives Federal financial assistance.

[[Page 40189]]

    (2) Under the prohibition set forth in paragraph (a)(1) of this 
section, discrimination includes:
    (i) Decisions based on speculation, stereotypes, or generalizations 
that a parent, caregiver, foster parent, or prospective parent, because 
of a disability, cannot safely care for a child; and
    (ii) Decisions based on speculation, stereotypes, or 
generalizations about a child with a disability.
    (b) Additional prohibitions. The prohibitions in paragraph (a) of 
this section apply to actions by a recipient of Federal financial 
assistance made directly or through contracts, agreements, or other 
arrangements, including any action to:
    (1) Deny a qualified parent with a disability custody or control 
of, or visitation to, a child;
    (2) Deny a qualified parent with a disability an opportunity to 
participate in or benefit from any and all services provided by a child 
welfare agency, including but not limited to, family preservation and 
reunification services equal to that afforded to persons without 
disabilities;
    (3) Terminate the parental rights or legal guardianship of a 
qualified individual with a disability;
    (4) Deny a qualified caregiver, foster parent, companion, or 
prospective parent with a disability the opportunity to participate in 
or benefit from child welfare programs and activities; or
    (5) Require children, on the basis on the disability, to be placed 
outside the family home through custody relinquishment, voluntary 
placement, or other forfeiture of parental rights in order to receive 
necessary services.
    (c) Parenting evaluation procedures. A recipient to which this 
subpart applies shall establish procedures for referring to qualified 
professionals for evaluation those individuals, who, because of 
disability, need or are believed to need adapted services or reasonable 
modifications. A recipient shall also ensure that tests, assessments, 
and other evaluation tools and materials used for the purpose of 
assessing or evaluating parenting ability are based in evidence or 
research, are conducted by a qualified professional and are tailored to 
assess actual parenting ability and specific areas of disability-
related needs. Parenting evaluations must be fully accessible to people 
with disabilities and shall not be based on a single general 
intelligence quotient or measure of the person's disability, rather 
than their parenting ability. Assessments of parents or children must 
be individualized and based on the best available objective evidence.

0
33. Revise subpart G to read as follows:
Subpart G--General Requirements
Sec.
84.68 General prohibitions against discrimination.
84.69 Illegal use of drugs.
84.70 Maintenance of accessible features.
84.71 Retaliation or coercion.
84.72 Personal devices and services.
84.73 Service animals.
84.74 Mobility devices.
84.75 Direct threat.
84.76 Integration.

Subpart G--General Requirements


Sec.  84.68  General prohibitions against discrimination.

    (a) No qualified individual with a disability shall, solely on the 
basis of disability, be excluded from participation in or be denied the 
benefits of the programs or activities of a recipient, or be subjected 
to discrimination by any recipient.
    (b)(1) A recipient, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of disability--
    (i) Deny a qualified individual with a disability the opportunity 
to participate in or benefit from the aid, benefit, or service.
    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others.
    (iii) Provide a qualified individual with a disability an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the benefit or to reach 
the same level of achievement as that provided to others.
    (iv) Provide different or separate aids, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aids, benefits, 
or services that are as effective as those provided to others.
    (v) Aid or perpetuate discrimination against a qualified individual 
with a disability by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of disability 
in providing any aid, benefit, or service to beneficiaries of the 
recipient's program.
    (vi) Deny a qualified individual with a disability the opportunity 
to participate as a member of planning or advisory boards.
    (vii) Otherwise limit a qualified individual with a disability in 
the enjoyment of any right, privilege, advantage, or opportunity 
enjoyed by others receiving the aid, benefit, or service.
    (2) A recipient may not deny a qualified individual with a 
disability the opportunity to participate in programs or activities 
that are not separate or different, despite the existence of 
permissibly separate or different programs or activities.
    (3) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration--
    (i) That have the effect of subjecting qualified individuals with 
disabilities to discrimination on the basis of disability;
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the recipient's program 
with respect to individuals with disabilities; or
    (iii) That perpetuate the discrimination of another recipient if 
both recipients are subject to common administrative control or are 
agencies of the same state.
    (4) A recipient may not, in determining the site or location of a 
facility, make selections--
    (i) That have the effect of excluding individuals with disabilities 
from, denying them the benefits of, or otherwise subjecting them to 
discrimination; or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to individuals with disabilities.
    (5) A recipient, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with disabilities 
to discrimination on the basis of disability.
    (6) A recipient may not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may a 
recipient establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. The programs 
or activities of entities that are licensed or certified by the 
recipient are not, themselves, covered by this part.
    (7)(i) A recipient shall make reasonable modifications in policies, 
practices, or procedures when such modifications are necessary to avoid 
discrimination on the basis of disability, unless the recipient can 
demonstrate that making the modifications would

[[Page 40190]]

fundamentally alter the nature of the program or activity.
    (ii) A recipient is not required to provide a reasonable 
modification to an individual who meets the definition of 
``disability'' solely under the ``regarded as'' prong of the definition 
of disability in Sec.  84.4(a)(1)(iii).
    (8) A recipient shall not impose or apply eligibility criteria that 
screen out or tend to screen out an individual with a disability or any 
class of individuals with disabilities from fully and equally enjoying 
any program or activity, unless such criteria can be shown to be 
necessary for the provision of the program or activity being offered.
    (c) Nothing in this part prohibits a recipient from providing 
benefits, services, or advantages to individuals with disabilities, or 
to a particular class of individuals with disabilities beyond those 
required by this part.
    (d) A recipient shall administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
individuals with disabilities.
    (e)(1) Nothing in this part shall be construed to require an 
individual with a disability to accept a modification, aid, service, 
opportunity, or benefit provided under section 504 or this part which 
such individual chooses not to accept.
    (2) Nothing in section 504 or this part authorizes the 
representative or guardian of an individual with a disability to 
decline food, water, medical treatment, or medical services for that 
individual.
    (f) A recipient may not place a surcharge on a particular 
individual with a disability or any group of individuals with 
disabilities to cover the costs of measures, such as the provision of 
auxiliary aids or program accessibility, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by section 504 or this part.
    (g) A recipient shall not exclude or otherwise deny equal programs 
or activities to an individual or entity because of the known 
disability of an individual with whom the individual or entity is known 
to have a relationship or association.
    (h) A recipient may impose legitimate safety requirements necessary 
for the safe operation of its programs or activities. However, the 
recipient must ensure that its safety requirements are based on actual 
risks, not on mere speculation, stereotypes, or generalizations about 
individuals with disabilities.
    (i) Nothing in this part shall provide the basis for a claim that 
an individual without a disability was subject to discrimination 
because of a lack of disability, including a claim that an individual 
with a disability was granted a reasonable modification that was denied 
to an individual without a disability.


Sec.  84.69  Illegal use of drugs.

    (a) General. (1) Except as provided in paragraph (b) of this 
section, this part does not prohibit discrimination against an 
individual based on that individual's current illegal use of drugs.
    (2) A recipient shall not discriminate on the basis of illegal use 
of drugs against an individual who is not engaging in current illegal 
use of drugs and who--
    (i) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (ii) Is participating in a supervised rehabilitation program; or
    (iii) Is erroneously regarded as engaging in such use.
    (b) Services provided under the Rehabilitation Act. (1) A recipient 
shall not exclude an individual on the basis of that individual's 
current illegal use of drugs from the benefits of programs and 
activities providing health services and services provided under 
subchapters I, II, and III of the Rehabilitation Act, if the individual 
is otherwise entitled to such services.
    (2) A drug rehabilitation or treatment program may deny 
participation to individuals who engage in illegal use of drugs while 
they are in the program.
    (c) Drug testing. (1) This part does not prohibit the recipient 
from adopting or administering reasonable policies or procedures, 
including but not limited to drug testing, designed to ensure that an 
individual who formerly engaged in the illegal use of drugs is not now 
engaging in current illegal use of drugs.
    (2) Nothing in this paragraph (c) shall be construed to encourage, 
prohibit, restrict, or authorize the conduct of testing for the illegal 
use of drugs.


Sec.  84.70  Maintenance of accessible features.

    (a) A recipient shall maintain in operable working condition those 
features of facilities and equipment that are required to be readily 
accessible to and usable by persons with disabilities by section 504 or 
this part.
    (b) This section does not prohibit isolated or temporary 
interruptions in service or access due to maintenance or repairs.
    (c) For a recipient, if the 2010 Standards reduce the technical 
requirements or the number of required accessible elements below the 
number required by UFAS, the technical requirements or the number of 
accessible elements in a facility subject to this part may be reduced 
in accordance with the requirements of the 2010 Standards.


Sec.  84.71  Retaliation or coercion.

    (a) A recipient shall not discriminate against any individual 
because that individual has opposed any act or practice made unlawful 
by this part, or because that individual made a charge, testified, 
assisted, or participated in any manner in an investigation, 
proceeding, or hearing under section 504 or this part.
    (b) A recipient shall not coerce, intimidate, threaten, or 
interfere with any individual in the exercise or enjoyment of, or on 
account of their having exercised or enjoyed, or on account of their 
having aided or encouraged any other individual in the exercise or 
enjoyment of any right granted or protected by section 504 or this 
part.


Sec.  84.72  Personal devices and services.

    This part does not require a recipient to provide to individuals 
with disabilities personal devices, such as wheelchairs; individually 
prescribed devices, such as prescription eyeglasses or hearing aids; 
readers for personal use or study; or services of a personal nature 
including assistance in eating, toileting, or dressing.


Sec.  84.73  Service animals.

    (a) General. Generally, a recipient shall modify its policies, 
practices, or procedures to permit the use of a service animal by an 
individual with a disability.
    (b) Exceptions. A recipient may ask an individual with a disability 
to remove a service animal from the premises if--
    (1) The animal is out of control and the animal's handler does not 
take effective action to control it; or
    (2) The animal is not housebroken.
    (c) If an animal is properly excluded. If a recipient properly 
excludes a service animal under paragraph (b) of this section, it shall 
give the individual with a disability the opportunity to participate in 
the program or activity without having the service animal on the 
premises.
    (d) Animal under handler's control. A service animal shall be under 
the control of its handler. A service animal shall have a harness, 
leash, or other tether, unless either the handler is unable because of 
a disability to use a harness, leash, or other tether, or the use of a 
harness, leash, or other tether

[[Page 40191]]

would interfere with the service animal's safe, effective performance 
of work or tasks, in which case the service animal must be otherwise 
under the handler's control (e.g., voice control, signals, or other 
effective means).
    (e) Care or supervision. A recipient is not responsible for the 
care or supervision of a service animal.
    (f) Inquiries. A recipient shall not ask about the nature or extent 
of a person's disability but may make two inquiries to determine 
whether an animal qualifies as a service animal. A recipient may ask if 
the animal is required because of a disability and what work or task 
the animal has been trained to perform. A recipient shall not require 
documentation, such as proof that the animal has been certified, 
trained, or licensed as a service animal. Generally, a recipient may 
not make these inquiries about a service animal when it is readily 
apparent that an animal is trained to do work or perform tasks for an 
individual with a disability (e.g., the dog is observed guiding an 
individual who is blind or has low vision, pulling a person's 
wheelchair, or providing assistance with stability or balance to an 
individual with an observable mobility disability).
    (g) Access to areas of the recipient. Individuals with disabilities 
shall be permitted to be accompanied by their service animals in all 
areas of the recipient's facilities where members of the public, 
participants in programs or activities, or invitees, as relevant, are 
allowed to go.
    (h) Surcharges. A recipient shall not ask or require an individual 
with a disability to pay a surcharge, even if people accompanied by 
pets are required to pay fees, or to comply with other requirements 
generally not applicable to people without pets. If a recipient 
normally charges individuals for the damage they cause, an individual 
with a disability may be charged for damage caused by their service 
animal.
    (i) Miniature horses--(1) Reasonable modifications. A recipient 
shall make reasonable modifications in policies, practices, or 
procedures to permit the use of a miniature horse by an individual with 
a disability if the miniature horse has been individually trained to do 
work or perform tasks for the benefit of the individual with a 
disability.
    (2) Assessment factors. In determining whether reasonable 
modifications in policies, practices, or procedures can be made to 
allow a miniature horse into a specific facility, a recipient shall 
consider--
    (i) The type, size, and weight of the miniature horse and whether 
the facility can accommodate these features;
    (ii) Whether the handler has sufficient control of the miniature 
horse;
    (iii) Whether the miniature horse is housebroken; and
    (iv) Whether the miniature horse's presence in a specific facility 
compromises legitimate safety requirements that are necessary for safe 
operation.
    (3) Other requirements. Paragraphs (c) through (h) of this section, 
which apply to service animals, shall also apply to miniature horses.


Sec.  84.74  Mobility devices.

    (a) Use of wheelchairs and manually-powered mobility aids. A 
recipient shall permit individuals with mobility disabilities to use 
wheelchairs and manually-powered mobility aids, such as walkers, 
crutches, canes, braces, or other similar devices designed for use by 
individuals with mobility disabilities in any areas open to pedestrian 
use.
    (b) Use of other power-driven mobility devices--(1) Requirement. A 
recipient shall make reasonable modifications in its policies, 
practices, or procedures to permit the use of other power-driven 
mobility devices by individuals with mobility disabilities, unless a 
recipient can demonstrate that the class of other power-driven mobility 
devices cannot be operated in accordance with legitimate safety 
requirements that a recipient has adopted pursuant to Sec.  84.68(h).
    (2) Assessment factors. In determining whether a particular other 
power-driven mobility device can be allowed in a specific facility as a 
reasonable modification under paragraph (b)(1) of this section, a 
recipient shall consider--
    (i) The type, size, weight, dimensions, and speed of the device;
    (ii) The facility's volume of pedestrian traffic (which may vary at 
different times of the day, week, month, or year);
    (iii) The facility's design and operational characteristics (e.g., 
whether its program or activity is conducted indoors, its square 
footage, the density and placement of stationary devices, and the 
availability of storage for the device, if requested by the user);
    (iv) Whether legitimate safety requirements can be established to 
permit the safe operation of the other power-driven mobility device in 
the specific facility; and
    (v) Whether the use of the other power-driven mobility device 
creates a substantial risk of serious harm to the immediate environment 
or natural or cultural resources, or poses a conflict with Federal land 
management laws and regulations.
    (c) Inquiry about disability--(1) Requirement. A recipient shall 
not ask an individual using a wheelchair or other power-driven mobility 
device questions about the nature and extent of the individual's 
disability.
    (2) Inquiry into use of other power-driven mobility device. A 
recipient may ask a person using an other power-driven mobility device 
to provide a credible assurance that the mobility device is required 
because of the person's disability. A recipient in permitting the use 
of an other power-driven mobility device by an individual with a 
mobility disability shall accept the presentation of a valid, State-
issued, disability parking placard or card, or other State-issued proof 
of disability as a credible assurance that the use of the other power-
driven mobility device is for the individual's mobility disability. In 
lieu of a valid, State-issued disability parking placard or card, or 
State-issued proof of disability, a recipient shall accept as a 
credible assurance a verbal representation, not contradicted by 
observable fact, that the other power-driven mobility device is being 
used for a mobility disability. A ``valid'' disability placard or card 
is one that is presented by the individual to whom it was issued and is 
otherwise in compliance with the State of issuance's requirements for 
disability placards or cards.


Sec.  84.75  Direct threat.

    (a) This part does not require a recipient to permit an individual 
to participate in or benefit from the programs or activities of that 
recipient when that individual poses a direct threat.
    (b) Except as provided in paragraph (c) of this section, in 
determining whether an individual poses a direct threat, a recipient 
must make an individualized assessment, based on reasonable judgment 
that relies on current medical knowledge or on the best available 
objective evidence, to ascertain: the nature, duration, and severity of 
the risk; the probability that the potential injury will actually 
occur; and whether reasonable modifications of policies, practices, or 
procedures or the provision of auxiliary aids or services will mitigate 
the risk.
    (c) In determining whether an individual poses a direct threat in 
employment, the recipient must make an individualized assessment 
according to the Equal Employment Opportunity Commission's regulation 
implementing title I of the Americans with Disabilities Act of 1990, at 
29 CFR 1630.2(r).

[[Page 40192]]

Sec.  84.76  Integration.

    (a) Application. This section applies to programs or activities 
that receive Federal financial assistance from the Department and to 
recipients that operate such programs or activities.
    (b) Discriminatory action prohibited. A recipient shall administer 
a program or activity in the most integrated setting appropriate to the 
needs of a qualified person with a disability.
    (c) Segregated setting. Segregated settings include but are not 
limited to congregate settings that are populated exclusively or 
primarily with individuals with disabilities and may be characterized 
by regimentation in daily activities; lack of privacy or autonomy; or 
policies or practices limiting visitors or limiting individuals' 
ability to engage freely in community activities and to manage their 
own activities of daily living.
    (d) Specific prohibitions. The general prohibition in paragraph (b) 
of this section includes but is not limited to the following specific 
prohibitions, to the extent that such action results in unnecessary 
segregation, or serious risk of such segregation, of persons with 
disabilities.
    (1) Establishing or applying policies or practices that limit or 
condition individuals with disabilities' access to the most integrated 
setting appropriate to their needs;
    (2) Providing greater benefits or benefits under more favorable 
terms in segregated settings than in integrated settings;
    (3) Establishing or applying more restrictive rules and 
requirements for qualified individuals with disabilities in integrated 
settings than for individuals with disabilities in segregated settings; 
or
    (4) Failure to provide community-based services that results in 
institutionalization or serious risk of institutionalization. This 
paragraph (d)(4) includes, but is not limited to planning, service 
system design, funding, or service implementation practices that result 
in institutionalization or serious risk of institutionalization. 
Qualified individuals with disabilities need not wait until the harm of 
institutionalization or segregation occurs to assert their right to 
avoid unnecessary segregation.
    (e) Fundamental alteration. A recipient may establish a defense to 
the application of this section if it can demonstrate that a requested 
modification would fundamentally alter the nature of its program or 
activity.

0
34. Add subpart H, consisting of Sec. Sec.  84.77 through 84.81, to 
read as follows:
Subpart H--Communications
Sec.
84.77 General.
84.78 Telecommunications.
84.79 Telephone emergency services.
84.80 Information and signage.
84.81 Duties.

Subpart H--Communications


Sec.  84.77  General.

    (a)(1) A recipient shall take appropriate steps to ensure that 
communications with applicants, participants, members of the public, 
and companions with disabilities are as effective as communications 
with others.
    (2) For purposes of this section, companion means a family member, 
friend, or associate of an individual seeking access to a program or 
activity of a recipient, who, along with such individual, is an 
appropriate person with whom the recipient should communicate.
    (b)(1) The recipient shall furnish appropriate auxiliary aids and 
services where necessary to afford qualified individuals with 
disabilities, including applicants, participants, beneficiaries, 
companions, and members of the public, an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity of a 
recipient.
    (2) The type of auxiliary aid or service necessary to ensure 
effective communication will vary in accordance with the method of 
communication used by the individual; the nature, length, and 
complexity of the communication involved; and the context in which the 
communication is taking place. In determining what types of auxiliary 
aids and services are necessary, a recipient shall give primary 
consideration to the requests of individuals with disabilities. In 
order to be effective, auxiliary aids and services must be provided in 
accessible formats, in a timely manner, and in such a way as to protect 
the privacy and independence of the individual with a disability.
    (c)(1) A recipient shall not require an individual with a 
disability to bring another individual to interpret for him or her.
    (2) A recipient shall not rely on an adult accompanying an 
individual with a disability to interpret or facilitate communication 
except--
    (i) In an emergency involving an imminent threat to the safety or 
welfare of an individual or the public where there is no interpreter 
available; or
    (ii) When the individual with a disability specifically requests 
that the accompanying adult interpret or facilitate communication, the 
accompanying adult agrees to provide such assistance, and reliance on 
that adult for such assistance is appropriate under the circumstances.
    (3) A recipient shall not rely on a minor child to interpret or 
facilitate communication, except in an emergency involving an imminent 
threat to the safety or welfare of an individual or the public when 
there is no interpreter available.
    (d) When the recipient chooses to provide qualified interpreters 
via video remote interpreting services (VRI), it shall ensure that it 
provides--
    (1) Real-time, full-motion video and audio over a dedicated high-
speed, wide-bandwidth video connection or wireless connection that 
delivers high-quality video images that do not produce lags, choppy, 
blurry, or grainy images, or irregular pauses in communication;
    (2) A sharply delineated image that is large enough to display the 
interpreter's face, arms, hands, and fingers, and the participating 
individual's face, arms, hands, and fingers, regardless of their body 
position;
    (3) A clear, audible transmission of voices; and
    (4) Adequate training to users of the technology and other involved 
individuals so that they may quickly and efficiently set up and operate 
the VRI.


Sec.  84.78  Telecommunications.

    (a) Where a recipient communicates by telephone with applicants and 
beneficiaries, text telephones (TTYs) or equally effective 
telecommunications systems shall be used to communicate with 
individuals who are deaf or hard of hearing or have speech impairments.
    (b) When a recipient uses an automated-attendant system, including, 
but not limited to, voice mail and messaging, or an interactive voice 
response system, for receiving and directing incoming telephone calls, 
that system must provide effective real-time communication with 
individuals using auxiliary aids and services, including TTYs and all 
forms of Federal Communications Commission (FCC)-approved 
telecommunications relay systems, including internet-based relay 
systems.
    (c) A recipient shall respond to telephone calls from a 
telecommunications relay service established under title IV of the ADA 
in the same manner that it responds to other telephone calls.

[[Page 40193]]

Sec.  84.79  Telephone emergency services.

    Telephone emergency services, including 911 services, shall provide 
direct access to individuals who use TTYs and computer modems.


Sec.  84.80  Information and signage.

    (a) A recipient shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (b) A recipient shall provide signage at all inaccessible entrances 
to each of its facilities, directing users to an accessible entrance or 
to a location at which they can obtain information about accessible 
facilities. The international symbol for accessibility shall be used at 
each accessible entrance of a facility.


Sec.  84.81  Duties.

    This subpart does not require a recipient to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or undue financial and administrative 
burdens. In those circumstances where a recipient's personnel believe 
that the proposed action would fundamentally alter the program or 
activity or would result in undue financial and administrative burdens, 
the recipient has the burden of proving that compliance with this 
subpart would result in such alteration or burdens. The decision that 
compliance would result in such alteration or burdens must be made by 
the head of the recipient or their designee after considering all the 
recipient's resources available for use in the funding and operation of 
the program or activity and must be accompanied by a written statement 
of reasons for reaching that conclusion. If an action required to 
comply with this part would result in such an alteration or such 
burdens, the recipient shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, individuals with 
disabilities receive the benefits or services provided by the 
recipient.

0
35. Add subpart I, consisting of Sec. Sec.  84.82 through 84.89, to 
read as follows:
Subpart I--Web, Mobile, and Kiosk Accessibility
Sec.
84.82 Application.
84.83 Accessibility of kiosks.
84.84 Requirements for web and mobile accessibility.
84.85 Exceptions.
84.86 Conforming alternate versions.
84.87 Equivalent facilitation.
84.88 Duties.
84.89 Effect of noncompliance that has a minimal impact on access.

Subpart I--Web, Mobile, and Kiosk Accessibility


Sec.  84.82  Application.

    This subpart applies to all programs or activities that receive 
Federal financial assistance from the Department.


Sec.  84.83  Accessibility of kiosks.

    No qualified individual with a disability shall, on the basis of 
disability, be excluded from participation in, be denied the benefits 
of, or otherwise be subjected to discrimination under any program or 
activity of a recipient provided through kiosks.


Sec.  84.84  Requirements for web and mobile accessibility.

    (a) General. A recipient shall ensure that the following are 
readily accessible to and usable by individuals with disabilities:
    (1) Web content that a recipient provides or makes available, 
directly or through contractual, licensing, or other arrangements; and
    (2) Mobile apps that a recipient provides or makes available, 
directly or through contractual, licensing, or other arrangements.
    (b) Requirements. (1) Beginning May 11, 2026, a recipient with 
fifteen or more employees shall ensure that the web content and mobile 
apps that the recipient provides or makes available, directly or 
through contractual, licensing, or other arrangements, comply with 
Level A and Level AA success criteria and conformance requirements 
specified in WCAG 2.1, unless the recipient can demonstrate that 
compliance with this section would result in a fundamental alteration 
in the nature of a program or activity or in undue financial and 
administrative burdens.
    (2) Beginning May 10, 2027, a recipient with fewer than fifteen 
employees shall ensure that the web content and mobile apps that the 
recipient provides or makes available, directly or through contractual, 
licensing, or other arrangements, comply with Level A and Level AA 
success criteria and conformance requirements specified in WCAG 2.1, 
unless the recipient can demonstrate that compliance with this section 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens.
    (3) WCAG 2.1 is incorporated by reference into this section with 
the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. All material approved for incorporation by 
reference (IBR) is available for inspection at HHS and at the National 
Archives and Records Administration (``NARA''). Contact HHS, OCR at: 
Office for Civil Rights, U.S. Department of Health and Human Services, 
200 Independence Ave. SW, Room 509F, HHH Building, Washington, DC 
20201; phone: (202) 545-4884; email: [email protected]. For information on 
the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email [email protected]. The 
material may be obtained from the World Wide Web Consortium (W3C) Web 
Accessibility Initiative (``WAI''), 401 Edgewater Place, Suite 600, 
Wakefield, MA 01880; phone: (339) 273-2711; email: [email protected]; 
website: www.w3.org/TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F.


Sec.  84.85  Exceptions.

    The requirements of Sec.  84.84 do not apply to the following:
    (a) Archived web content. Archived web content as defined in Sec.  
84.10.
    (b) Preexisting conventional electronic documents. Conventional 
electronic documents that are available as part of a recipient's web 
content or mobile apps before the date the recipient is required to 
comply with Sec.  84.84, unless such documents are currently used to 
apply for, gain access to, or participate in the recipient's programs 
or activities.
    (c) Content posted by a third party. Content posted by a third 
party, unless the third party is posting due to contractual, licensing, 
or other arrangements with the recipient.
    (d) Individualized, password-protected documents or otherwise 
secured conventional electronic documents. Conventional electronic 
documents that are:
    (1) About a specific individual, their property, or their account; 
and
    (2) Password-protected or otherwise secured.
    (e) Preexisting social media posts. A recipient's social media 
posts that were posted before the date the recipient is required to 
comply with Sec.  84.84.


Sec.  84.86  Conforming alternate versions.

    (a) A recipient may use conforming alternate versions of web 
content, as defined by WCAG 2.1, to comply with Sec.  84.84 only where 
it is not possible to

[[Page 40194]]

make web content directly accessible due to technical or legal 
limitations.
    (b) WCAG 2.1 is incorporated by reference into this section with 
the approval of the Director of the Federal Register under 5 U.S.C. 
552(a) and 1 CFR part 51. All material approved for incorporation by 
reference is available for inspection at HHS and at NARA. Contact HHS, 
OCR at: Office for Civil Rights, U.S. Department of Health and Human 
Services, 200 Independence Ave. SW, Room 509F, HHH Building, 
Washington, DC 20201; phone: (202) 545-4884; email: [email protected]. For 
information on the availability of this material at NARA, visit 
www.archives.gov/federal-register/cfr/ibr-locations or email 
[email protected]. The material may be obtained from the World 
Wide Web Consortium (W3C) Web Accessibility Initiative (``WAI''), 401 
Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273-2711; 
email: [email protected]; website: www.w3.org/TR/2018/REC-WCAG21-20180605/ 
and https://perma.cc/UB8A-GG2F.


Sec.  84.87  Equivalent facilitation.

    Nothing in this subpart prevents the use of designs, methods, or 
techniques as alternatives to those prescribed, provided that the 
alternative designs, methods, or techniques result in substantially 
equivalent or greater accessibility and usability of the web content or 
mobile app.


Sec.  84.88  Duties.

    Where a recipient can demonstrate that compliance with the 
requirements of Sec.  84.84 would result in a fundamental alteration in 
the nature of a program or activity or in undue financial and 
administrative burdens, compliance with Sec.  84.84 is required to the 
extent that it does not result in a fundamental alteration or undue 
financial and administrative burdens. In those circumstances where 
personnel of the recipient believe that the proposed action would 
fundamentally alter the program or activity or would result in undue 
financial and administrative burdens, a recipient has the burden of 
proving that compliance with Sec.  84.84 would result in such 
alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the head of a recipient or 
their designee after considering all resources available for use in the 
funding and operation of the program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, a recipient shall take any other action that would not result 
in such an alteration or such burdens but would nevertheless ensure 
that individuals with disabilities receive the benefits or services 
provided by the recipient to the maximum extent possible.


Sec.  84.89  Effect of noncompliance that has a minimal impact on 
access.

    A recipient that is not in full compliance with the requirements of 
Sec.  84.84(b) will be deemed to have met the requirements of Sec.  
84.84 in the limited circumstance in which the recipient can 
demonstrate that the noncompliance has such a minimal impact on access 
that it would not affect the ability of individuals with disabilities 
to use the recipient's web content or mobile app to do any of the 
following in a manner that provides substantially equivalent 
timeliness, privacy, independence, and ease of use:
    (a) Access the same information as individuals without 
disabilities;
    (b) Engage in the same interactions as individuals without 
disabilities;
    (c) Conduct the same transactions as individuals without 
disabilities; and
    (d) Otherwise participate in or benefit from the same programs and 
activities as individuals without disabilities.

0
36. Add subpart J, consisting of Sec. Sec.  84.90 through 84.97, to 
read as follows:
Subpart J--Accessible Medical Equipment
Sec.
84.90 Application.
84.91 Requirements for medical diagnostic equipment.
84.92 Newly purchased, leased, or otherwise acquired medical 
diagnostic equipment.
84.93 Existing medical diagnostic equipment.
84.94 Qualified staff.
84.95-84.97 [Reserved]

Subpart J--Accessible Medical Equipment


Sec.  84.90  Application.

    This subpart applies to programs or activities that receive Federal 
financial assistance from the Department and to recipients that 
operate, or that receive Federal financial assistance for the operation 
of, such programs or activities.


Sec.  84.91  Requirements for medical diagnostic equipment.

    No qualified individual with a disability shall, on the basis of 
disability, be excluded from participation in, be denied the benefits 
of the programs or activities of a recipient offered through or with 
the use of medical diagnostic equipment (MDE), or otherwise be 
subjected to discrimination under any program or activity that receives 
Federal financial assistance because the recipient's MDE is not readily 
accessible to or usable by persons with disabilities.


Sec.  84.92  Newly purchased, leased, or otherwise acquired medical 
diagnostic equipment.

    (a) Requirements for all newly purchased, leased, or otherwise 
acquired medical diagnostic equipment. All MDE that recipients 
purchase, lease (including via lease renewals), or otherwise acquire 
more than July 8, 2024, subject to the requirements and limitations set 
forth in this section, meet the Standards for Accessible MDE, unless 
and until the recipient satisfies the scoping requirements set forth in 
paragraph (b) of this section.
    (b) Scoping requirements--(1) General requirement for medical 
diagnostic equipment. Where a program or activity of a recipient, 
including physicians' offices, clinics, emergency rooms, hospitals, 
outpatient facilities, and multi-use facilities, utilizes MDE, at least 
10 percent of the total number of units, but no fewer than one unit, of 
each type of equipment in use must meet the Standards for Accessible 
MDE.
    (2) Facilities that specialize in treating conditions that affect 
mobility. In rehabilitation facilities that specialize in treating 
conditions that affect mobility, outpatient physical therapy 
facilities, and other programs or activities that specialize in 
treating conditions that affect mobility, at least 20 percent, but no 
fewer than one unit, of each type of equipment in use must meet the 
Standards for Accessible MDE.
    (3) Facilities with multiple departments. In any facility or 
program with multiple departments, clinics, or specialties, where a 
program or activity uses MDE, the facility shall disperse the 
accessible MDE required by paragraphs (b)(1) and (2) of this section in 
a manner that is proportionate by department, clinic, or specialty 
using MDE.
    (c) Requirements for examination tables and weight scales. Within 2 
years after July 8, 2024, recipients shall, subject to the requirements 
and limitations set forth in this section, purchase, lease, or 
otherwise acquire the following, unless the recipient already has them 
in place:
    (1) At least one examination table that meets the Standards for 
Accessible MDE, if the recipient uses at least one examination table; 
and
    (2) At least one weight scale that meets the Standards for 
Accessible MDE, if the recipient uses at least one weight scale.

[[Page 40195]]

    (d) Equivalent facilitation. Nothing in this section prevents the 
use of designs, products, or technologies as alternatives to those 
prescribed by the Standards for Accessible MDE, provided they result in 
substantially equivalent or greater accessibility and usability of the 
program or activity. The responsibility for demonstrating equivalent 
facilitation rests with the recipient.
    (e) Fundamental alteration and undue burdens. This section does not 
require a recipient to take any action that it can demonstrate would 
result in a fundamental alteration in the nature of a program or 
activity, or in undue financial and administrative burdens. In those 
circumstances where personnel of the recipient believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, a recipient 
has the burden of proving that compliance with paragraph (a) or (c) of 
this section would result in such alteration or burdens. The decision 
that compliance would result in such alteration or burdens must be made 
by the head of a recipient or their designee after considering all 
resources available for use in the funding and operation of the program 
or activity and must be accompanied by a written statement of the 
reasons for reaching that conclusion. If an action would result in such 
an alteration or such burdens, a recipient shall take any other action 
that would not result in such an alteration or such burdens but would 
nevertheless ensure that individuals with disabilities receive the 
benefits or services provided by the recipient.
    (f) Diagnostically required structural or operational 
characteristics. A recipient meets its burden of proving that 
compliance with paragraph (a) or (c) of this section would result in a 
fundamental alteration under paragraph (e) of this section if it 
demonstrates that compliance with paragraph (a) or (c) would alter 
diagnostically required structural or operational characteristics of 
the equipment, and prevent the use of the equipment for its intended 
diagnostic purpose. This paragraph (f) does not excuse compliance with 
other technical requirements where compliance with those requirements 
does not prevent the use of the equipment for its diagnostic purpose.


Sec.  84.93  Existing medical diagnostic equipment.

    (a) Accessibility. A recipient shall operate each program or 
activity offered through or with the use of MDE so that the program or 
activity, in its entirety, is readily accessible to and usable by 
individuals with disabilities. This paragraph (a) does not--
    (1) Necessarily require a recipient to make each of its existing 
pieces of medical diagnostic equipment accessible to and usable by 
individuals with disabilities; or
    (2) Require a recipient to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity, or in undue financial and administrative burdens. In those 
circumstances where personnel of the recipient believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, a recipient 
has the burden of proving that compliance with this paragraph (a) would 
result in such alteration or burdens. The decision that compliance 
would result in such alteration or burdens must be made by the head of 
the recipient or their designee after considering all resources 
available for use in the funding and operation of the program or 
activity and must be accompanied by a written statement of the reasons 
for reaching that conclusion. If an action would result in such an 
alteration or such burdens, the recipient shall take any other action 
that would not result in such an alteration or such burdens but would 
nevertheless ensure that individuals with disabilities receive the 
benefits or services provided by the recipient.
    (3) A recipient meets its burden of proving that compliance with 
this paragraph (a) would result in a fundamental alteration under 
paragraph (a)(2) of this section if it demonstrates that compliance 
with this paragraph (a) would alter diagnostically required structural 
or operational characteristics of the equipment, and prevent the use of 
the equipment for its intended diagnostic purpose.
    (b) Methods. A recipient may comply with the requirements of this 
section through such means as reassignment of services to alternate 
accessible locations, home visits, delivery of services at alternate 
accessible sites, purchase, lease, or other acquisition of accessible 
MDE, or any other methods that result in making its programs or 
activities readily accessible to and usable by individuals with 
disabilities. A recipient is not required to purchase, lease, or 
otherwise acquire accessible medical diagnostic equipment where other 
methods are effective in achieving compliance with this section. In 
choosing among available methods for meeting the requirements of this 
section, a recipient shall give priority to those methods that offer 
programs and activities to qualified individuals with disabilities in 
the most integrated setting appropriate.


Sec.  84.94  Qualified staff.

    Recipients must ensure their staff are able to successfully operate 
accessible MDE, assist with transfers and positioning of individuals 
with disabilities, and carry out the program access obligation 
regarding existing MDE.


Sec. Sec.  84.95-84.97   [Reserved]

0
37. Add subpart K, consisting of Sec.  84.98, to read as follows:

Subpart K--Procedures


Sec.  84.98   Procedures.

    The procedural provisions applicable to title VI of the Civil 
Rights Act of 1964 apply to this part. These procedures are found in 45 
CFR 80.6 through 80.10 and 45 CFR part 81.

Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2024-09237 Filed 5-1-24; 8:45 am]
BILLING CODE 4165-16-P