63392 Federal Register / Vol. 88, No. 177 / Thursday, September 14, 2023 / Proposed Rules 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Part 84 

RIN 0945–AA15 

Discrimination on the Basis of 

Disability in Health and Human Service 

Programs or Activities 

AGENCY: Office for Civil Rights (OCR), 

Office of the Secretary, HHS. 

ACTION: Proposed rule. 

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 proposes to update and 

amend its section 504 regulation. The 

proposed rule would add new 

provisions that clarify existing 

requirements under section 504 

prohibiting recipients of financial 

assistance from the Department 

(recipients) from discriminating on the 

basis of disability in their programs and 

activities, including in health care, child 

welfare, and other human services. The 

proposed rule includes new 

requirements prohibiting discrimination 

in the areas of medical treatment; the 

use of value assessments; web, mobile, 

and kiosk accessibility; and 

requirements for accessible medical 

equipment, so that persons with 

disabilities have an opportunity to 

participate in or benefit from health care 

programs and activities that is equal to 

the opportunity afforded others. It also 

adds a section on child welfare to 

expand on and clarify the obligation to 

provide nondiscriminatory child 

welfare services. The proposed rule 

would also update the definition of 

disability and other provisions to ensure 

consistency with statutory amendments 

to the Rehabilitation Act, enactment of 

the Americans with Disabilities Act and 

the Americans with Disabilities 

Amendments Act of 2008, the 

Affordable Care Act, as well as Supreme 

Court and other significant court cases. 

It also further clarifies the obligation to 

provide services in the most integrated 

setting. Finally, the proposed rule 

would make other clarifying edits, 

including updating outdated 

terminology and references. 

DATES: 

Comments: Submit comments on or 

before November 13, 2023. 

Meeting: Pursuant to Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, the 

Department of Health and Human 

Services’ Tribal Consultation Policy, 

and the Department’s Plan for 

Implementing Executive Order 13175, 

the Office for Civil Rights solicits input 

by tribal officials as we develop the 

implementing regulations for section 

504 of the Rehabilitation Act of 1973 at 

45 CFR part 84. The Tribal consultation 

meeting will be held on October 6, 2023 

from 2 p.m. to 4 p.m. Eastern Time. 

ADDRESSES: 

Meeting: To participate in the Tribal 

consultation, you must register in 

advance at https://www.zoomgov.com/ 

meeting/register/vJIsceGqpzsjEwi

5AQ8pvdIholm7Xp4hwLs. 

Comments: You may submit 

comments to this proposed rule, 

identified by RIN 0945–AA15, by any of 

the following methods. Please do not 

submit duplicate comments. 

Federal eRulemaking Portal. You may 

submit electronic comments at http://

www.regulations.gov by searching for 

the Docket ID number HHS–OCR–2023– 

0013. Follow the instructions at http:// 

www.regulations.gov online for 

submitting comments through this 

method. 

Regular, Express, or Overnight Mail: 

You may mail comments to U.S. 

Department of Health and Human 

Services, Office for Civil Rights, 

Attention: Disability NPRM, RIN 0945– 

AA15, Hubert H. Humphrey Building, 

Room 509F, 200 Independence Avenue 

SW, Washington, DC 20201. 

All comments sent by the methods 

and received or officially postmarked by 

the due date specified above will be 

posted without change to content to 

http://www.regulations.gov, including 

any personal information provided, and 

such posting may occur before or after 

the closing of the comment period. 

We will consider all comments 

received or officially postmarked by the 

date and time specified in the DATES

section above, but, because of the large 

number of public comments we 

normally receive on Federal Register 

documents, we are not able to provide 

individual acknowledgements of 

receipt. 

Please allow sufficient time for mailed 

comments to be timely received in the 

event of delivery or security delays. 

Electronic comments with attachments 

should be in Microsoft Word or Portable 

Document Format (PDF). 

Please note that comments submitted 

by fax or email, and those submitted or 

postmarked after the comment period, 

will not be accepted. 

Docket: For complete access to 

background documents or posted 

comments, go to http:// 

www.regulations.gov and search for 

Docket ID number HHS–OCR–2023– 

0013. 

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 504@

hhs.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

A. Purpose and Relevant Law 

B. Summary of the Proposed Rule 

II. Reasons for the Proposed Rulemaking 

III. Nondiscrimination in Programs and 

Activities 

A. New Provisions Addressing 

Discrimination on the Basis of Disability 

Under Section 504 

Medical Treatment (§ 84.56) 

Value Assessment Methods (§ 84.57) 

Children, Parents, Caregivers, Foster 

Parents, and Prospective Parents in the 

Child Welfare System (§ 84.60) 

Subpart I: Web, Mobile, and Kiosk 

Accessibility (§§ 80.82–80.88) 

Subpart J: Accessible Medical Equipment 

(§§ 84.90–84.94) 

B. Revised Provisions Addressing 

Discrimination and Ensuring 

Consistency With Statutory Changes, 

Supreme Court, and Other Case Law 

Purpose and Broad Coverage (§ 84.1): 

Revisions to Subpart A 

Application (§ 84.2): Revisions to Subpart 

A 

Relationship to Other Laws (§ 84.3): 

Revisions to Subpart A 

Definition of Disability (§ 84.4): Revisions 

to Subpart A 

Notice (§ 84.8): Revisions to Subpart A 

Definitions (§ 84.10): Revisions to Subpart 

A 

Employment Practices (§ 84.16): Revisions 

to Subpart B 

Program Accessibility (§§ 84.21–84.23): 

Revisions to Subpart C 

Childcare, Preschool, Elementary and 

Secondary, and Adult Education 

(§§ 84.31, 84.38): Revisions to Subpart D 

Health, Welfare, and Social Services 

(§§ 84.51–84.55): Revisions to Subpart F 

Subpart G: General Requirements 

General Prohibitions Against 

Discrimination (§ 84.68) 

Illegal Use of Drugs (§ 84.69) 

Maintenance of Accessible Features 

(§ 84.70) 

Retaliation or Coercion (§ 84.71) 

Personal Services and Devices (§ 84.72) 

Service Animals (§ 84.73) 

Mobility Devices (§ 84.74) 

Direct Threat (§ 84.75) 

Integration (§ 84.76) 

Subpart H: Communications (§§ 84.77– 

84.81) 

Subpart K: Procedures (§ 84.98) 

IV. Executive Order 12866 and Related 

Executive Orders on Regulatory Review 

Regulatory Impact Analysis Summary 

Regulatory Flexibility Act—Initial Small 

Entity Analysis 


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Federal Register / Vol. 88, No. 177 / Thursday, September 14, 2023 / Proposed Rules 63393 

1The statutory text of section 504 explains that 

‘‘program or activity’’ means ‘‘all of the operations 

of’’ an agency. 29 U.S.C. 794(b)(1)(A). The term 

‘‘programs and activities’’ is therefore intended to 

cover the same types of operations that are covered 

under title II of the Americans with Disabilities Act 

(ADA). 

2 29 U.S.C. 794. 

3 Id. 

4 42 U.S.C. 12132 (‘‘. . . no qualified individual 

with a disability shall, by reason of such disability, 

be excluded from participation in or be denied the 

benefits of services, programs, or activities of a 

public entity, or be subjected to discrimination by 

any such entity’’). The ADA regulations generally 

designate HHS as the agency with responsibility for 

investigating complaints of discrimination in 

‘‘programs, services, and regulatory activities 

relating to the provision of health care and social 

services.’’ 28 CFR 35.190(b)(3). With respect to 

employment, the standards contained in title I of 

the ADA apply to determinations of employment 

discrimination under section 504. Title I of the 

ADA provides, ‘‘No covered entity shall 

discriminate against a qualified individual on the 

basis of disability in regard to job application 

procedures, the hiring, advancement, or discharge 

of employees, employee compensation, job training, 

and other terms, conditions, and privileges of 

employment.’’ 42 U.S.C. 12112. Title II entities are 

also obligated to fulfill the ADA’s title I 

requirements in their capacity as employers, which 

are distinct from their obligations under this rule. 

5 42 U.S.C. 18116. 

6 In its Notice of Proposed Rulemaking on 

regulations implementing Section 1557 of the 

Affordable Care Act, 45 CFR pt. 92, the Department 

has proposed to revise its interpretation that 

‘‘Federal financial assistance’’ does not include 

Medicare Part B, and to make conforming necessary 

amendments to the appendices of regulations 

implementing both Title VI of the Civil Rights Act 

and section 504. 87 FR 47824, 47828 (Aug. 4, 2022). 

Those proposed changes are not separately 

addressed in this rule. 

7 In 1980, Congress reorganized HEW into several 

Federal agencies including the Department of 

Health and Human Services and the Department of 

Education. The existing section 504 regulations of 

HEW continued in place with HHS. 

8 45 CFR pt. 85. 

9The 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. 

Executive Order 13132: Federalism 

Paperwork Reduction Act 

National Technology Transfer and 

Advancement Act of 1995 

Executive Order 12250 on Leadership and 

Coordination of Nondiscrimination Laws 

V. Effective Date 

VI. Request for Comment 

I. Background 

A. Purpose and Relevant Law 

Section 504 prohibits discrimination 

on the basis of disability in programs 

and activities 1 that receive Federal 

financial assistance as well as in 

programs and activities conducted by 

any Federal agency.2 Section 504 

provides: 

No otherwise qualified individual with a 

disability in the United States, as defined in 

Section 705(20) of this title, shall, solely by 

reason of her or his disability, be excluded 

from the participation in, be denied the 

benefits of, or be subjected to discrimination 

under any program or activity receiving 

Federal financial assistance or under any 

program or activity conducted by any 

Executive agency or by the United States Post 

Office.3

The Office for Civil Rights (OCR) in 

HHS enforces section 504 as well as two 

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.4 OCR also enforces section 

1557 (section 1557) of the Patient 

Protection and Affordable Care Act 

(ACA),5 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 contract 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.6

Congress passed the Rehabilitation 

Act in 1973, and what was then the U.S. 

Department of Health, Education, and 

Welfare (HEW) issued regulations to 

implement section 504 in 1977.7 In the 

more than 40 years since, 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), the ACA, and 

Supreme Court and other significant 

court cases. It is crucial that section 504 

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 that 

clarity, the Department proposes 

amendments to its existing section 504 

regulation on nondiscrimination 

obligations for recipients of Federal 

financial assistance (part 84). 

In addition, since section 504 also 

covers programs and activities 

conducted by the Department, the 

Department intends to publish a 

separate rulemaking to update its 

existing federally conducted regulation, 

which has not been amended since it 

was enacted in 1998 (part 85).8

B. Summary of the Proposed Rule 

The Department proposes to amend 

its existing regulation implementing 

section 504 for federally assisted 

programs and activities to address the 

obligations of recipients of Federal 

financial assistance to comply with 

section 504 across a variety of contexts. 

The proposed rule clarifies the 

application of section 504 to several 

areas not explicitly addressed through 

the existing regulation, including 

medical treatment decisions; the use of 

value assessments; web, mobile, and 

kiosk accessibility; and accessible 

medical equipment. The proposed rule 

also expands on and clarifies the 

requirements in the current regulation 

applicable to federally funded child 

welfare programs and activities. 

In addition, the Department proposes 

to update pertinent provisions 

throughout the rule to promote 

consistency with title II of the ADA and 

the corresponding U.S. Department of 

Justice (DOJ) ADA regulations. The 

proposed rule will add the following 

new sections to the section 504 

regulations that track the ADA 

regulations: definition of ‘‘disability,’’ 

notice, maintenance of accessible 

features, retaliation and coercion, 

personal devices and services, service 

animals, mobility devices, and 

communications. The proposed rule 

also contains the following sections that 

are similar to the ADA regulations: 

purpose and broad coverage, 

definitions, general prohibitions against 

discrimination, program accessibility, 

illegal use of drugs, direct threat, and 

integration. The proposed rule will also 

provide more detailed standards on the 

obligation to provide programs and 

activities in the most integrated setting 

appropriate and will make nonsubstantive clarifying edits, including 

updating outdated terminology and 

references and omitting obsolete 

regulatory sections. 

Section 504 and the ADA are 

generally understood by courts to 

impose similar requirements. Moreover, 

the vast majority of recipients have been 

covered by either title II of the ADA 

(State and local government entities) or 

title III of the ADA (certain private 

entities) since 1991. Therefore, the rule 

proposes to adopt ADA language in 

appropriate circumstances. Doing so 

will allow for greater public 

understanding and ease of compliance 

by regulated entities. 

II. Reasons for the Proposed 

Rulemaking 

The Department is issuing this 

proposed rule to address discrimination 

on the basis of disability by recipients 

of HHS financial assistance.9 The 


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10Amendments 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. 

11See, e.g., Elizabeth A. Courtney-Long et al., 

Socioeconomic Factors at the Intersection of Race 

and Ethnicity Influencing Health Risks for People 

with Disabilities, 4 J. of Racial and Ethnic Health 

Disparities 213 (2017), https://doi.org/10.1007/ 

s40615-016-0220-5; Susan Havercamp et al., 

National Health Surveillance of Adults with 

Disabilities, Adults with Intellectual and 

Developmental Disabilities, and Adults with No 

Disabilities, 8 Disability & Health J. 165 (2015), 

https://doi.org/10.1016/j.dhjo.2014.11.002; Lisa I. 

Iezzoni et al., Have Almost Fifty Years of Disability 

Civil Rights Laws Achieved Equitable Care?, 41 

Health Affairs 1371 (2022), https://doi.org/10.1377/ 

hlthaff.2022.00413; Tara Lagu et al., ‘I Am Not The 

Doctor For You’: Physicians’ Attitudes About Caring 

For People With Disabilities, 41 Health Affairs 1387 

(2022), https://doi.org/10.1377/hlthaff.2022.00475; 

Monika Mitra et al., (2022) Advancing Health 

Equity and Reducing Health Disparities for People 

with Disabilities in the United States, 41 Health 

Affairs 1379 (2022), https://doi.org/10.1377/ 

hlthaff.2022.00499. Nat’l Council on Disability, 

Health Equity Framework for People With 

Disabilities (2022), https://www.ncd.gov/sites/ 

default/files/NCD_Health_Equity_Framework.pdf; 

Nat’l Council on Disability, The Current State of 

Health Care for People with Disabilities (2009). 

12See, e.g., Nat’l Council on Disability, Bioethics 

and Disability Report Series (2019), https://ncd.gov/ 

publications/2019/bioethics-report-series; Tara Lagu 

et al., The Axes of Access—Improving Care Quality 

for Patients with Disabilities, 370 New Eng. J. Med. 

1847 (May 2014); Tara Lagu et al., Ensuring Access 

to Health Care for Patients with Disabilities, 175 

JAMA Internal Med. 157 (Dec. 2014); Tim Gilmer, 

Equal Health Care: If Not Now, When?, New 

Mobility (July 2013), http://www.newmobility.com/ 

equal-health-care-if-not-now-when; Gloria L. Krahn 

et al., Persons with Disabilities as an Unrecognized 

Health Disparity Population, 105 Am. J. of Pub. 

Health (Suppl 2) S198 (S198–S206) (2015); Kristi L. 

Kirschner et al., Structural Impairments that Limit 

Access to Health Care for Patients with Disabilities, 

297 JAMA 1121 (2007). 

13Nat’l Council on Disability, Assisted Suicide: A 

Disability Perspective (Mar. 24, 1997), https://

ncd.gov/publications/1997/03241997. 

14See, e.g., Laura VanPuymbrouck, et al., Explicit 

and Implicit Disability Attitudes of Healthcare 

Providers, Rehabilitation Psych., 65(2) 2020, at 101– 

112; Stefanie Ames et al., Perceived DisabilityBased Discrimination in Health Care for Children 

With Medical Complexity, Pediatrics, 152(1) 2023, 

https://doi.org/10.1542/peds.2022-060975. 

15See Tara Lagu et al., ‘I Am not the Doctor For 

You’: Physicians’ Attitudes about Caring for People 

with Disabilities, 41 Health Affairs 1387 (2022), 

https://doi.org/10.1377/hlthaff.2022.00475; Laura 

VanPuymbrouck et al., Explicit and Implicit 

Disability Attitudes of Healthcare Providers, 

Rehabilitation Psych., 65(2) 2020, at 101–112, 

https://doi.org/10.1037/rep0000317. 

16Lisa I. Iezzoni et al., Physicians’ Perceptions of 

People with Disability and their Health Care, 40 

Health Aff. 297 (Feb. 2021), https://pubmed.ncbi.

nlm.nih.gov/33523739/ (citing GL Albrecht et al., 

The Disability Paradox: High Quality of Life Against 

All Odds, 48 Soc. Sci. Med., 977 (1999)). 

17See, e.g., Lesley v. Chie, 250 F.3d 47, 55 (1st 

Cir. 1985) (Physician’s decision could be 

‘‘discriminatory on its face, because it rested on 

stereotypes of the disabled rather than an 

individualized inquiry into the patient’s 

condition’’). 

18Nat’l Council on Disability, Rocking the Cradle: 

Ensuring the Rights of Parents with Disabilities and 

their Children (2012), https://www.ncd.gov/sites/ 

default/files/Documents/NCD_Parenting_508_0.pdf. 

proposed regulation offers clear and 

specific requirements to help recipients 

and beneficiaries better understand their 

rights and responsibilities under section 

504. In the years since HEW first 

promulgated its section 504 regulation, 

it has rarely been amended, with the 

most recent amendment occurring in 

2005.10 The proposed rule addresses 

developments in statutory and case law 

regarding disability discrimination. To 

promote voluntary compliance with the 

law, we provide further clarity and 

elaboration to the legal standards. 

Furthermore, the proposed rule is 

consistent with the goals and objectives 

of several recent Executive Orders that 

address equitable access to benefits and 

services for underserved populations. 

As detailed below, people with 

disabilities have historically been 

underserved by, denied equitable access 

to, or excluded from health programs 

and activities. Executive Order 14035 

(Advancing Diversity, Equity, Inclusion, 

and Accessibility Across the Federal 

Government) and Executive Order 

13985 (Advancing Racial Equity and 

Support for Underserved Communities 

Through the Federal Government) 

explicitly describe people with 

disabilities as an underserved 

community and priority population for 

Federal policy intervention. The 

rulemaking is also consistent with 

Executive Order 14009 (Strengthening 

Medicaid and the Affordable Care Act), 

which requires agencies with authorities 

and responsibilities related to Medicaid 

and the ACA to review existing 

regulations to ensure they promote 

equitable access to high-quality health 

care accessible and affordable for every 

American, including reviewing policies 

or practices that may undermine 

protections for people with pre-existing 

conditions, including complications 

related to COVID–19, under the ACA. 

Finally, this rulemaking is consistent 

with Executive Order 14070 (Continuing 

to Strengthen Americans’ Access to 

Affordable, Quality Health Coverage), 

which directs the Department to 

examine policies or practices that 

strengthen benefits and improve access 

to health care providers. 

People with disabilities are often 

excluded from health programs and 

activities and denied an equal 

opportunity to participate in and benefit 

from quality health care.11 That 

discrimination contributes to significant 

health disparities and poorer health 

outcomes than persons with disabilities 

would experience absent the 

discrimination.12

The National Council on Disability 

(NCD), an independent Federal agency, 

has observed that ‘‘[o]ne of the 

hallmarks of societal attitudes toward 

disabilities has been a tendency of 

people without disabilities to 

overestimate the negative aspects and 

underestimate the positive features of 

the lives of those who have 

disabilities.’’ 13 Research in the field of 

health care supports this assertion.14

One recent study demonstrates that 

large proportions of practicing U.S. 

physicians appear to hold biased or 

stigmatized perceptions of people with 

disabilities.15 The study found that 

many physicians perceive that people 

with disabilities experience a lower 

quality of life because of their 

disabilities—even though most 

individuals with disabilities report that 

they experience an excellent or good 

quality of life. Furthermore, only 40.7% 

of physicians surveyed were confident 

of their ability to provide the same 

quality of care to patients with 

disabilities and only 56.5% strongly 

agreed that they welcome patients with 

disabilities into their practices.16

Flawed perceptions, stereotypes, and 

biases about individuals with 

disabilities can lead to prohibited 

discrimination.17

These issues are not limited to health 

care. For example, the NCD 2012 report, 

‘‘Rocking the Cradle: Ensuring the 

Rights of Parents with Disabilities and 

Their Children,’’ included research and 

accounts of parents who had been 

treated unfairly because of their 

disabilities, documenting persistent and 

systemic discrimination against parents 

with disabilities whose children were 

involved with the child welfare 

system.18 The Department is issuing this 

proposed regulation to offer clear and 

specific requirements to help recipients 

better understand their obligations 

under the law and to help individuals 

with disabilities better understand their 

rights. The Department believes this 

added clarity and transparency will 

support recipients in providing 

programs and activities free of 

discrimination on the basis of disability. 

This preamble will address first the 

new provisions being added to the 

existing section 504 rule (Section III(A) 

in the Table of Contents above)— 

medical treatment; value assessment; 

child welfare; web, mobile, and kiosk 

accessibility; and accessible medical 

equipment—and then will address the 

updated provisions (Section III(B) in the 

Table of Contents). However, the text of 

the rule itself does not start with the 


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19See, e.g., Donlon v. Hillsborough Cnty., No. 18– 

cv–549–LM, 2019 WL 2062436 (D.N.H. May 9, 

2019) (granting Plaintiff’s motion under the ADA to 

amend her complaint alleging that she was denied 

medical treatment and emergency care because she 

had been stereotyped based on her mental illness. 

The court said that ‘‘[t]he facts alleged raise a 

plausible inference of such unreasonable care that 

would imply pretext for a discriminatory motive.’’); 

Pesce v. Coppinger, 355 F. Supp. 3d 35, 47 (D. 

Mass. 2018) (granting Plaintiff’s motion under the 

ADA for a preliminary injunction because the 

failure of the correctional facility to provide 

methadone for opioid addiction ‘‘is either ‘arbitrary 

or capricious as to imply that it was a pretext for 

some ‘discriminatory motive’ or ‘discriminatory on 

its face,’ ’’ (citing Kiman v. N.H. Dep’t of Corr., 151 

F.3d 274, 285 (1st Cir. 2006); Sumes v. Andres, 938 

F. Supp. 9, 12 (D.D.C. 1996) (finding that there was 

no bona fide medical reason for a physician’s 

refusal to treat the plaintiff, the court held that the 

ADA and section 504 had been violated because the 

denial of treatment was based on deafness); Howe 

v. Hull, 874 F. Supp. 779, 788–89 (N.D. Ohio 1994) 

(denying Defendant’s motion for summary 

judgment under the ADA because the refusal of the 

hospital to admit the plaintiff for treatment was 

based on her HIV status). 

20Letter from Nat’l Council on Disability to Roger 

Severino, Dir., U.S. Dep’t of Health & Hum. Servs., 

Off. for Civil Rts., (March 18, 2020), https://ncd.gov/ 

publications/2020/ncd-covid-19-letter-hhs-ocr. 

21While this proposed section 504 regulation 

relates specifically to disability discrimination, 

other categories of discrimination, including 

discrimination on the basis of race, color, national 

origin, sex (including pregnancy, sexual orientation, 

and gender identity), and age, also impact the 

health care system. Many of these forms of 

discrimination intersect with disability 

discrimination, contributing to and at times 

exacerbating the nature and extent of the harms 

people with disabilities experience. In addition, 

many communities of color experience higher rates 

of disability and health risks in the U.S. See, e.g., 

Centers for Disease Control and Prevention, Adults 

with Disabilities: Ethnicity and Race, https://

www.cdc.gov/ncbddd/disabilityandhealth/ 

materials/infographic-disabilities-ethnicityrace.html (last visited Oct. 1, 2022). 

22See, e.g., Nat’l Council on Disability, Bioethics 

and Disability Report Series (2019), https://ncd.gov/ 

publications/2019/bioethics-report-series; Tara Lagu 

et al., The Axes of Access—Improving Care Quality 

for Patients with Disabilities, 370 N. Engl. J. Med. 

1847 (May 2014); Tara Lagu et al., Ensuring Access 

to Health Care for Patients with Disabilities, 175 

JAMA Internal Med. 157 (Feb. 2015); Tim Gilmer, 

Equal Health Care: If Not Now, When?, New 

Mobility (July 1, 2013), http://

www.newmobility.com/equal-health-care-if-notnow-when; Gloria L. Krahn et al., Persons with 

Disabilities as an Unrecognized Health Disparity 

Population, 105 Am. J. of Public Health S198 

(2015); Kristi L. Kirschner et al., Structural 

Impairments that Limit Access to Health Care for 

Patients with Disabilities, 297 JAMA 1121 (Mar. 

2007). 

23See, e.g., Elham Mahmoudi et al., Disparities in 

Access to Health Care Among Adults with Physical 

Disabilities: Analysis of a Representative National 

Sample for a Ten-Year Period, 8 Disability & Health 

J. 182 (Apr. 2015), https://doi.org/10.1016/

j.dhjo.2014.08.007; Stephen P. Gulley et al., 

Disability in Two Health Care Systems: Access, 

Quality, Satisfaction, and Physician Contacts 

among Working-Age Canadians and Americans 

with Disabilities, 1 Disability & Health J. 196 (Oct. 

2008). 

24Ctrs. for Disease Control & Prevention, 

Disability Inclusion, https://www.cdc.gov/ncbddd/

disabilityandhealth/disability-inclusion.html; 

Valerie Forman-Hoffman et al., Disability Status, 

Mortality, and Leading Causes of Death in the 

United States Community Population, 53(4) 

Medical Care 346 (Apr. 2015), https://pubmed.ncbi.

nlm.nih.gov/25719432; Williams, M. et al., 

Exploring Health Disparities Among Individuals 

with Disabilities within the United States, Am. Pub. 

Health Ass’n. (Oct. 2020), https://apha.confex.com/ 

apha/2020/meetingapp.cgi/Paper/473208; Nat’l 

Council on Disability, Health Equity Framework for 

People with Disabilities (2022), https://ncd.gov/ 

sites/default/files/NCD_Health_Equity_

Framework.pdf. 

25See, e.g., Andrea Fiorillo & Norman Sartorius, 

Mortality Dap and Physical Comorbidity of People 

with Severe mental Disorders: The Public Health 

Scandal Ann. Gen. Psychiatry 20, 52 (2021). https:// 

doi.org/10.1186/s12991-021-00374-y; Steve Brown 

et al., Twenty Five Year Mortality of a Community 

Cohort with Schizophrenia, Br. J. Psychiatry (2010), 

https://www.ncbi.nlm.nih.gov/pmc/articles/ 

PMC4560167/. 

26 Joseph Firth et al., The Lancet Psychiatry 

Commission: A Blueprint for Protecting Physical 

Health in People with Mental Illness, The Lancet 

Psychiatry, Vol. 6, 675–712 (2019), https://doi.org/ 

10.1016/S2215-0366(19)30132-4. 

new provisions but, instead, follows in 

numerical order. This explanation is 

being provided so that a reader can 

understand how the order of this 

preamble corresponds to the text of the 

regulation. 

Throughout this NPRM, the terms 

‘‘individual with a disability,’’ ‘‘people 

with disabilities,’’ and ‘‘person with a 

disability’’ are used interchangeably. No 

substantive difference is intended. 

III. Nondiscrimination in Programs and 

Activities 

A. New Provisions Addressing 

Discrimination on the Basis of Disability 

Under Section 504 § 84.56 Medical 

Treatment 

The Department funds a wide array of 

programs and activities in which 

recipients make decisions regarding 

medical treatment. Medical literature, 

government agency reports, and court 

decisions demonstrate that individuals 

with disabilities face discrimination at 

every stage of the medical treatment 

process. Biases and stereotypes about 

the impact of disability affect decisions 

in different contexts, including 

diagnoses, day-to-day treatment 

decisions, emergency care decisions, 

and the allocation of scarce medical 

resources in health crises.19 Recent 

experiences during the COVID–19 

public health emergency further 

illustrate the harms that discrimination 

can pose. In March 2020 NCD observed 

that ‘‘discrimination by medical 

practitioners who, through ignorance of 

the law or due to the belief that people 

with disabilities are less valuable, and 

therefore less deserving of medical care, 

than those who are not’’ resulted in 

‘‘people with chronic illnesses and 

other disabilities [being] left behind, 

denied resources to survive, and as a 

result, suffer[ing] great losses of life.’’ 20

We propose to clarify the general 

prohibition on discrimination against 

qualified individuals with disabilities in 

the medical treatment context and 

elaborate on specific prohibitions in this 

context. ‘‘Medical treatment’’ is used in 

this section 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, rehabilitative, or 

palliative. It includes the use of a wide 

range of regimens for both physical and 

mental conditions, interventions, or 

procedures, such as surgery; the 

prescribing, dispensing, or management 

of medications; exercise; physical 

therapy; rehabilitation services; and the 

provision of durable medical 

equipment. 

Throughout this section, the terms 

‘‘provider’’ and ‘‘medical professional’’ 

are sometimes used in place of 

‘‘recipient,’’ which is defined in § 84.10. 

Discrimination Against People With 

Disabilities in Medical Treatment 

Although section 504 has prohibited 

discrimination in any program or 

activity receiving Federal financial 

assistance since it was enacted, 

discrimination continues to underpin 

health inequities faced by people with 

disabilities.21 People with disabilities 

have reduced access to medical 

treatment, a reality that leads to 

significant health disparities and poorer 

health outcomes.22 People with 

disabilities are significantly more likely 

than people without disabilities to have 

unmet medical, dental, and prescription 

needs.23 Unmet health care needs 

contribute to various indicators of 

health inequity: for example, 

individuals with disabilities in the 

United States have a shorter average life 

expectancy than people without 

disabilities and are three times as likely 

to have heart disease, stroke, diabetes, 

or cancer than adults without 

disabilities.24 People with certain types 

of serious mental illness have a 

significantly shorter life expectancy 

than the general population,25 and 

people with mental illness have an 

increased risk of physical disease, as 

well as reduced access to adequate 

health care.26 Pregnant people with 

disabilities receive poorer maternity 

care, experience higher incidents of 

pregnancy and birth-related 

complications, and are eleven times 

more likely to experience maternal 


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27See, e.g., Jessica L. Gleason et al., Risk of 

Adverse Maternal Outcomes in Pregnant Women 

with Disabilities, JAMA Network Open (2021), 

https://jamanetwork.com/journals/ 

jamanetworkopen/fullarticle/2787181; Willi HornerJohnson et al., Perinatal Health Risks and Outcomes 

Among US Women with Self-Reported Disability, 41 

Health Aff. 2011 (Sep. 2022), https://doi.org/ 

10.1377/hlthaff.2022.00497. 

28Lisa Iezzoni et al., Associations Between 

Disability and Breast or Cervical Cancers, 

Accounting for Screening Disparities, Medical Care 

139 (2021), https://www.ncbi.nlm.nih.gov/pmc/ 

articles/PMC7855335/; see also, C. Brook Steele et 

al., Prevalence of Cancer Screening Among Adults 

with Disabilities, United States, 2013. Preventing 

Chronic Disease (2017), http://dx.doi.org/10.5888/ 

pcd14.160312. 

29M.A. Nosek et al., Breast and Cervical Cancer 

Screening Among Women with Physical 

Disabilities, 78 Archives of Physical Medicine and 

Rehabilitation, S39 (1997), https://doi.org/10.1016/ 

s0003-9993(97)90220-3; See also, Lisa Iezzoni, 

Cancer Detection, Diagnosis, and Treatment for 

Adults with Disabilities, 23 Lancet E164 (Apr. 

2022), https://doi.org/10.1016/S1470- 

2045(22)00018-3. 

30Nat’l Council on Disability, The Impact of 

COVID–19 on People with Disabilities, 87 (2021), 

https://ncd.gov/sites/default/files/NCD_COVID-19_

Progress_Report_508.pdf. 

31Akobirshoev et al., Delayed Medical Care and 

Unmet Care Needs Due to the COVID–19 Pandemic 

among Adults with Disabilities in the US, 41 Health 

Aff. 1505 (Oct. 2022), https://doi.org/10.1377/ 

hlthaff.2022.00509. 

32Nat’l Acad. of Sciences, Engineering, & Med., 

People Living with Disabilities: Health Equity, 

Health Disparities, and Health Literacy: 

Proceedings of a Workshop (2018), https://doi.org/ 

10.17226/24741. 

33Lisa I. Iezzoni et al., Physicians’ Perceptions of 

People with Disability and Their Health Care, 40 

Health Aff. 297 (Feb. 2021), https://pubmed.

ncbi.nlm.nih.gov/33523739/. 

34 Id. at 300. 

35 Id. 

36 Id. at 301. 

37Lisa I. Iezzoni et al., US Physicians’ Knowledge 

about the Americans with Disabilities Act and 

Accommodation of Patients with Disability, 41 

Health Aff. 96 (Jan. 2022), https://pubmed.ncbi.

nlm.nih.gov/34982624/. 

38 Id. at 100–101. 

39Tara Lagu et al., ‘I Am Not the Doctor For You’: 

Physicians’ Attitudes about Caring for People with 

Disabilities, 41 Health Aff. 96 (Jan. 2022), https:// 

doi.org/10.1377/hlthaff.2022.00475. 

40Nat’l Council on Disability, Medical Futility 

and Disability Bias (2019), https://ncd.gov/sites/ 

default/files/NCD_Medical_Futility_Report_508.pdf; 

see also, Mary Crossley, Ending-Life Decisions: 

Some Disability Perspectives, 33 Ga. St. U. L. Rev. 

900 (2017). 

41Lisa I. Iezzoni et al., Physicians’ Perceptions of 

People with Disability and their Health Care, 40 

Health Aff. 297 (Feb. 2021), https://pubmed.ncbi.

nlm.nih.gov/33523739/ (citing GL Albrecht et al, 

The Disability Paradox: High Quality of life against 

all odds, 48 Soc. Sci. Med. 977 (1999)). 

42Nat’l Council on Disability, Assisted Suicide: A 

Disability Perspective (1997), https://ncd.gov/ 

publications/1997/03241997. 

43See, e.g., Tara Lagu et al., ‘I am Not the Doctor 

For You:’ Physicians’ Attitudes About Caring for 

People with Disabilities, supra note 39 (‘‘Many 

physicians also expressed explicit bias toward 

people with disabilities and described strategies for 

discharging them from their practices. Physicians 

raised concerns about the expense of providing 

physical and communication accommodations, 

including insufficient reimbursement for 

physicians’ efforts and competing demands for staff 

time and other practice resources. Many 

participants described caring for very few patients 

who need accommodations, with little 

acknowledgment that the barriers to obtaining care 

and inability to track or respond to accommodation 

needs could lead to an underidentification of the 

number of people with disabilities who seek care.’’). 

death than people without disabilities.27

People with physical disabilities are less 

likely to receive mammograms, Pap 

smears, or other recommended routine 

preventive screenings.28 People with 

disabilities are also more likely to have 

risk factors associated with cancer than 

people without disabilities.29 During the 

first year of the COVID–19 pandemic, 

one-third of the individuals who died in 

the United States were living in 

congregate settings, often to receive 

necessary services and supports—the 

majority of whom were individuals with 

disabilities.30 Adults with disabilities 

were also considerably more likely than 

their peers without disabilities to either 

delay care or not get needed medical 

care for health issues other than 

COVID–19.31

Although many factors contribute to 

these health inequities, discriminatory 

medical decisions—often driven by 

stereotypes about disability—are a key 

factor. The National Academies of 

Sciences, Engineering, and Medicine 

report that provider assumptions about 

people with disabilities limit health and 

health care for people with disabilities, 

noting that health care providers assume 

that people with disabilities ‘‘differ in 

significant, meaningful, and somewhat 

undefined ways from other people[;] 

that people with disabilities have a 

lower level of cognitive ability, 

independence, and interest in 

improving and maintaining current 

function; [and] that the quality of life for 

a disabled person is severely 

compromised, [which] limits the type, 

scope, and aggressiveness of considered 

treatment options.’’ 32

These assumptions have been 

documented in many programs and 

activities that frequently receive HHS 

funding. For example, a 2021 study 

entitled ‘‘Physicians’ Perceptions of 

People with Disability and Their Health 

Care’’ found that large proportions of 

practicing U.S. physicians appeared to 

hold biased or stigmatized perceptions 

of people with disabilities, such as 

perceiving worse quality of life for 

people with disabilities.33 The study 

showed that, for example, 82% of 

doctors thought people with disabilities 

had a lower quality of life than people 

without disabilities,34 only 40% felt 

confident in their ability to provide the 

same level to care to patients with 

disabilities as those without 

disabilities,35 and only 56% strongly 

agreed that they welcomed patients with 

disabilities into their practice.36 A 

related study released in January 2022 

also made clear that many physicians 

are uncertain about their legal 

responsibilities resulting from laws 

prohibiting discrimination on the basis 

of disability or how to ensure the 

provision of equitable care to patients 

with disabilities.37 For example, more 

than 71% of physicians surveyed 

provided incorrect answers about who 

makes decisions about reasonable 

accommodations for patients with a 

disability.38 Another study published in 

October 2022 found that some providers 

seek ways to avoid treating patients 

with disabilities and to discharge them 

from their practice.39 These medical 

provider attitudes do not reflect the high 

quality of life reported by many people 

with disabilities. In 2019, NCD 

observed, ‘‘most report a high quality of 

life and level of happiness, especially 

when they have access to the health care 

services and supports that they need to 

equally participate in and contribute to 

their communities.’’ 40 Most individuals 

with disabilities report an excellent or 

good quality of life.41 As NCD noted 

previously, ‘‘[. . .] negative predictions 

of life quality have little to do with the 

actual life experiences of people with 

disabilities. People with disabilities 

commonly report more satisfaction with 

their lives than others might have 

expected. Though they commonly 

encounter obstacles, prejudice, and 

discrimination, most people with 

disabilities manage to derive satisfaction 

and pleasure from their lives.’’ 42

Stereotypes about the value and 

quality of the lives of people with 

disabilities have led to discriminatory 

medical decisions in both the provision 

and denial of medical treatment.43 The 

general pattern of discrimination against 

people with disabilities in medical 

treatment decisions extends across the 

array of contexts in which recipients 

make those decisions. 

Below is a discussion of several of the 

most significant contexts in which this 

pattern of discrimination has come to 

the Department’s attention, including in 

the areas of organ transplantation, 

denial of life-sustaining care, crisis 

standards of care, participation in 

clinical research, and other forms of 

medical treatment for people with 

disabilities, including forced 

sterilization. Following that is a 

subsection-by-subsection analysis of 

this proposed section. 


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44Sec. 372, Public Law 98–507; 42 U.S.C. 274. 

45 42 U.S.C. 1320b–8; sec. 371(b)(3)(C) and sec. 

1138(b) of the Public Health Service Act (42 U.S.C. 

273(b)(3)(C)). 

46Nat’l Council on Disability, Organ Transplants 

Discrimination against People with Disabilities: Part 

of the Bioethics and Disability Series (2019), 

https://ncd.gov/sites/default/files/NCD_Organ_

Transplant_508.pdf. 

47Nat’l Council on Disability, Health Equity 

Framework for People with Disabilities (2022), 

https://ncd.gov/sites/default/files/NCD_Health_

Equity_Framework.pdf. 

48Nat’l Council on Disability, Organ Transplants 

Discrimination against People with Disabilities: Part 

of the Bioethics and Disability Series, 38–40 (2019), 

https://ncd.gov/sites/default/files/NCD_Organ_

Transplant_508.pdf. 

49See, e.g., Bussoletti v. Univ. of Pitt. Med. Ctr. 

(07–068765); Walker v. Univ. Cal. San Diego Med. 

Ctr. (08–80649); Parsons v. Cnty of Santa Clara, 

Santa Clara Valley Med. Ctr. (07–69439); Paladino 

v. Union City Renal Ctr. (06–44878); Beaton v. 

Sutter Mem’l Hosp. (03–11505); Eggemeyer v. Ill. 

Dep’t of Human Serv. Randolph Cnty. Office (03– 

004371); HIV/AIDS Legal Servs Alliance v. Health 

Plan P of Cal. (09–02–3296); Lewis v. Willis 

Knighton Med. Ctr. (03–12129), on file with OCR. 

In at least one of the above complaints, OCR 

recommended that the covered entity evaluate its 

transplant listing policies after discovering that the 

covered entity’s policy listed ‘‘severe mental 

retardation’’ as a contraindication for transplant. 

50See Disability Rts. of N.C. v. Univ. of N.C. 

Hosp., (19–318735), https://www.hhs.gov/about/ 

news/2019/02/12/ocr-resolves-disability-complaintindividual-who-was-denied-opportunity-hearttransplant-list.html (No violation was found but a 

voluntary resolution agreement was entered into 

with the facility). 

51Letter from Matt Valliere et al., to Roger 

Severino, Dir., U.S. Dep’t of Health & Hum. Servs., 

Off. for Civil Rts., (May 6, 2019). The letter is on 

file with OCR. 

52Letter from Thirty (30) Members of Congress to 

Jocelyn Samuels, former Dir., U.S. Dep’t of Health 

& Hum. Servs., Off. for Civil Rts., (Oct. 12, 2016), 

on file with OCR. 

53Nat’l Down Syndrome Soc’y, 

Nondiscrimination in Organ Transplantation Laws 

& Toolkit (2022), https://www.ndss.org/programs/ 

ndss-legislative-agenda/healthcare-research/ 

nondiscrimination-in-organ-transplantation-lawstoolkit/. 

54Nat’l Council on Disability, Organ Transplant 

Discrimination Against People With Disabilities 53– 

54 (2019), https://ncd.gov/sites/default/files/NCD_

Organ_Transplant_508.pdf; See also Isabella 

Newburg, Note, The Heart of the Discrimination 

Problem: Insufficient State Protection for People 

with Intellectual and Developmental Disabilities in 

the Organ Transplant Process, 107 Ia. L. Rev. 877, 

894 (2022). 

Organ Transplantation 

The Department plays a significant 

role in organ transplantation in the U.S. 

Within the Department, the Health 

Resources & Services Administration 

(HRSA) exercises oversight of solid 

organ transplantation according to a 

statutory and regulatory framework. The 

National Organ Transplant Act of 1984, 

as amended (NOTA) authorized the 

establishment of the Organ Procurement 

and Transplantation Network (OPTN) to 

allocate donor organs to individuals 

waiting for an organ transplant.44 Under 

NOTA, the Secretary of Health and 

Human Services (Secretary) contracts 

with a non-profit entity to operate the 

OPTN, which currently is the United 

Network for Organ Sharing (UNOS). 

Additionally, the Centers for Medicare & 

Medicaid Services (CMS) makes 

payment for organ procurement costs 

under the Medicare and Medicaid 

programs to organ procurement 

organizations (OPOs) that meet safety 

requirements. Under Federal law, CMS 

is charged with certifying OPOs that 

must meet the OPO Conditions for 

Coverage in the regulations at 42 CFR 

486.301 through 486.360, which include 

outcome and process measures.45 OPOs 

are non-profit organizations responsible 

for the procurement of organs for 

transplantation. CMS also certifies that 

transplant programs, located within 

hospitals with Medicare provider 

agreements, perform transplantation 

procedures from living and deceased 

donors. Transplant programs must 

comply with the Medicare transplant 

program conditions of participation 

(CoPs) regulations at 42 CFR 482.68 

through 482.104, and with the hospital 

CoPs at §§ 482.1 through 482.58. 

NCD published a 2019 report, ‘‘Organ 

Transplant Discrimination Against 

People with Disabilities,’’ describing 

how people with disabilities who are 

otherwise qualified candidates for an 

organ transplant are excluded at many 

phases of the transplant process because 

of health care providers’ inaccurate 

assumptions about quality of life, 

lifespan, and post-transplant 

compliance.46 In February 2022, NCD 

issued a ‘‘Health Equity Framework for 

People with Disabilities’’ and 

recommended that HHS regulate this 

area.47 The NCD organ transplant report 

states that discrimination occurs even 

though disabilities unrelated to a 

person’s need for an organ transplant 

generally have little or no impact on the 

likelihood that the transplant will be 

successful, and that, if a person with a 

disability receives adequate support, 

their disability should have very limited 

impact on their ability to adhere to a 

post-transplant care regimen.48

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.49 For 

example, in 2019, OCR resolved a case 

alleging discrimination against an 

individual with autism spectrum 

disorder, in which the complainant 

alleged the University of North Carolina 

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 directly 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.50

The Department has heard from a 

number of stakeholders urging action on 

this issue. On May 6, 2019, 17 major 

organizations that serve and advocate 

for individuals with disabilities sent a 

letter asking OCR to issue a regulation 

and guidance that addresses 

discriminatory practices in organ 

transplantation.51 On October 12, 2016, 

a bipartisan group of 30 members of 

Congress sent a letter to OCR urging it 

to issue guidance on discrimination 

against individuals with disabilities, 

particularly individuals with 

intellectual and developmental 

disabilities, in organ transplantation.52

The letter cited data documenting 

consideration of disability status in 

organ transplantation. The Department 

agrees that action remains needed. 

Moreover, while 34 states have passed 

State laws protecting the rights of 

people with disabilities to access organ 

transplantation, 16 States and the 

District of Columbia lack legislation 

addressing this issue.53 And even where 

State laws do address this issue, it is 

unclear whether those laws are 

adequately enforced. Additionally, 

according to a 2019 NCD report, 

transplant centers in states that have 

passed antidiscrimination legislation 

continue to publicly post discriminatory 

criteria for organ transplantation, 

suggesting that some State law 

requirements are not well-known or 

enforced.54

Research has documented the 

persistence of organ transplantation 

policies that discriminate against 

individuals with disabilities, 


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55Nat’l Council on Disability, Organ Transplant 

Discrimination Against People With Disabilities, 30 

(2019), https://ncd.gov/sites/default/files/NCD_

Organ_Transplant_508.pdf (‘‘Disability 

discrimination persists in the evaluation process 

because, in spite of evidence to the contrary, many 

physicians still view HIV and AIDS, as well as 

intellectual, developmental, or psychiatric 

disabilities, as relative or absolute contraindications 

to transplant.’’). 

56Aaron Wightman et al., Consideration of 

Children with Intellectual Disability as Candidates 

for Solid Organ Transplantation—A Practice in 

Evolution, Pediatric Transplantation 22, no. 1 (Feb. 

2018), citing Richards CT et al., Use of 

Neurodevelopmental Delay in Pediatric Solid Organ 

Transplant Listing Decisions: Inconsistencies in 

Standards across Major Pediatric Transplant 

Centers. Pediatric Transplantation no. 13, 843–85 

(2009). 

57See, e.g., E. Samuel-Jones et al., Cardiac 

Transplantation in Adult Patients with Mental 

Retardation: Do Outcomes Support Consensus 

Guidelines, 53 Psychomatics 133 (2012) 

(concluding people with intellectual disabilities can 

receive long-term benefit from heart transplantation 

when they have the support necessary to ensure 

adherence to post-transplant regimens); Marilee 

Martens et al., Organ Transplantation, Organ 

Donation and Mental Retardation, Pediatric 

Transplantation. 2006 Sept.;10(6):658–64 (reviewed 

the literature on accessibility and outcomes of organ 

transplantation in individuals with intellectual 

disability and on the prevalence of organ donation 

in this population. The one- and three-year patient 

survival rates were 100% and 90%, respectively). 

58Marilee A. Martens et al., Organ 

Transplantation, Organ Donation, and Mental 

Retardation, 10 Pediatric Transplantation 658 

(2006). 

59Am. Soc’y of Transplant Surgeons, Statement 

Concerning Eligibility for Solid Organ Transplant 

Candidacy (Feb. 12, 2021), https://asts.org/aboutasts/position-statements#.Ysxi0LfMKUk. 60See, e.g., Sara Reardon, Push Is On for States 

to Ban Organ Transplant Discrimination, Kaiser 

Health News (Mar. 8, 2021), https://khn.org/news/ 

article/organ-transplant-discrimination-disabilitiesstate-legislation/; Sunshine Bodey, My Son Has 

Autism. Discrimination Almost Cost Him His Life, 

Wash. Post (Aug. 30, 2017), https://

www.washingtonpost.com/opinions/my-son-hasautism-discrimination-almost-cost-him-his-life/ 

2017/08/30/b899dc58-88e8-11e7-961d2f373b3977ee_story.html; Lenny Berstein, People 

with Autism, Intellectual Disabilities Fight Bias in 

Transplants, Wash. Post (Mar. 4, 2017), https://

www.washingtonpost.com/national/health-science/ 

people-with-autism-intellectual-disabilities-fightbias-in-transplants/2017/03/04/756ff5b8-feb2-11e6- 

8f41-ea6ed597e4ca_story.html?utm_

term=.144fbd126817. 

61 Kim Painter, Disabled NJ Girl Thrives, Inspires 

After Transplant, USA Today (Oct. 5, 2013), https:// 

www.usatoday.com/story/news/nation/2013/10/05/ 

disabled-transplant-amelia-rivera/2917989/. 

62 David Shapiro, Disabled Woman Dies While 

Awaiting Second Chance at Transplant, NPR (June 

13, 2012), https://www.npr.org/sections/healthshots/2012/06/13/154914089/disabled-woman-dieswhile-awaiting-second-chance-at-kidney-transplant. 

63Michael Roppolo, They Say Their Children Are 

Being Denied Transplants Because of Their 

Disabilities. A New Federal Law May Help Change 

That., CBS News, (Feb. 28, 2022), https://

www.cbsnews.com/news/organ-transplantsdiscrimination-disability-rights. 

64Medical futility sometimes goes under other 

names such as ‘‘nonbeneficial treatment.’’ 

65Nat‘l Council on Disability, Medical Futility 

and Disability Bias: Part of the Bioethics and 

Disability Series (Nov. 2019), https://ncd.gov/sites/ 

default/files/NCD_Medical_Futility_Report_508.pdf. 

66See LJ Schneiderman et al., Medical Futility: Its 

Meaning and Ethical Implications, 112 Ann. Intern. 

particularly against individuals with 

intellectual and developmental 

disabilities, psychiatric disabilities, and 

HIV.55 A 2009 study reported that 85% 

of pediatric transplant centers 

considered neurodevelopmental status 

in evaluation, and 71% considered 

subnormal IQ a relative or absolute 

contraindication to transplant.56

Programs continue to list these 

conditions as reasons for denying 

transplants, despite evidence that, for 

example, individuals with intellectual 

or developmental disabilities who have 

received organ transplants have rates of 

successful outcomes and medical 

adherence comparable to those of the 

general population.57 A literature 

review published in ‘‘Pediatric 

Transplantation’’ found scant scientific 

data to support the idea that having an 

intellectual or developmental disability 

would pose a heightened risk of poorer 

outcomes following a transplant.58

In a policy statement, the American 

Society of Transplant Surgeons 

recommends ‘‘that no patient will be 

discriminated against or precluded from 

transplant listing solely due to the 

presence of a disability or handicap, 

whether physical or psychological . . . 

This [transplant] decision would be 

made due to the clinical risk benefit 

analysis for the specific patient, and not 

on any external factors.’’ The Society 

further indicates support for ‘‘efforts to 

identify and eliminate any Transplant 

Center processes or practices that allow 

discrimination.’’ 59

Media reports have also documented 

denials of organ transplants based on 

disability.60 For example, in 2013, the 

news widely covered the initial denial 

of a kidney transplant to a three-yearold girl by Children’s Hospital of 

Philadelphia because she had WolfHirschhorn syndrome, which delays 

growth and causes intellectual and 

developmental disabilities.61 In 2006, 

Oklahoma University Medical Center 

denied a young woman placement on a 

waiting list for a kidney transplant 

based on her diagnosis of Mild 

Intellectual Disability.62 In February 

2022, CBS News covered families’ 

allegations that hospitals denied 

transplant eligibility for children with 

Down syndrome and other 

developmental disabilities.63 In 

addition, the general obligation to make 

reasonable modifications for qualified 

individuals with disabilities under 

proposed § 84.68(b)(7) applies to organ 

transplantation. For example, transplant 

programs receiving Federal financial 

assistance must allow individuals to 

meet the requirement that they can 

manage postoperative care needs with a 

reasonable modification, such as the 

assistance of a formal or informal 

support system. These types of supports 

may include, for example, support from 

family or friends, paid services, longterm services and supports, and other 

forms of assistance. 

The continuing evidence of 

discrimination against individuals with 

disabilities in organ transplantation 

demonstrates the need for a rule 

specifically discussing the application 

of section 504’s requirements in the 

medical treatment context. 

Life-Sustaining Treatment 

People with disabilities face 

significant discrimination in access to 

life-sustaining care. These 

discriminatory judgments arise when 

clinicians seek to end the continued 

provision of life-sustaining care that is 

still actively sought by a person with a 

disability or their authorized 

representative. This proposed rule uses 

the term ‘‘life-sustaining care’’ here 

broadly, to encompass both critical care 

treatment and life-saving or lifeextending care provided outside the 

context of an acute medical crisis. 

Discrimination is particularly salient in 

the context of medical futility 

determinations, when hospitals and 

providers decide to discontinue or deny 

medical treatment based on the 

judgment that the treatment would do 

little or nothing to benefit the patient.64

Section 504 does not prohibit giving 

medical providers discretion to make 

medical futility judgments; it does 

require that medical futility judgments 

be made on a nondiscriminatory basis. 

There is ample evidence that 

perceptions about patients with 

disabilities’ quality of life often affects 

judgments related to patient benefit and 

leads to the discriminatory denial of 

life-sustaining care. The result can be 

premature death for patients with 

disabilities. 

NCD published a report in 2019 

examining the issue of medical futility 

determinations and disability bias, 

discussing decisions by health care 

providers to withhold or withdraw lifesustaining care for individuals with 

disabilities that are driven by subjective 

quality of life judgments.65 Clinical 

literature documents how futility 

determinations can be used to deny care 

to people with disabilities based on 

their use of assistive technology, 

ongoing support needs, and other 

factors that do not prevent a treatment 

from being effective in saving or 

extending life.66 As discussed above, 


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Med. 949 (1990) (indicating the use of assistive 

technology, ongoing support needs, etc. in futility 

determinations). See also Maryam Aghabaray et al., 

Medical Futility and its Challenges: a Review Study, 

9 J. Med. Ethics & History of Med. 11 (2016), 

https://www.ncbi.nlm.nih.gov/pmc/articles/ 

PMC5203684/ (clarifying the continued use of these 

standards in the present day). 

67Lisa I. Iezzoni et al., Physicians’ Perceptions of 

People with Disability and Their Health Care, 40 

Health Aff. 297 (Feb. 2021), https://pubmed.ncbi.

nlm.nih.gov/33523739/, citing GL Albrecht et al., 

The Disability Paradox: High Quality of Life Against 

All Odds, 48 Soc. Sci. Med. 977 (1999). 

68L. Morata, An Evolutionary Concept Analysis of 

Futility in Health Care, 74 J. Advanced Nursing 

1289 (June 2018). 

69 Id. 

70L.J. Schneiderman et al., Medical Futility, 118 

Handbook of Clinical Neurology 167 (Jan. 2013); 

Morata L., supra note 68. 

71R. Sibbald, et al., Perceptions of ‘‘Futile Care’’ 

Among Caregivers in Intensive Care Units, 177 

CMAJ 1201 (Nov. 2007); Mu ̈ller R, Kaiser S. et al., 

Perceptions of Medical Futility in Clinical Practice– 

a Qualitative Systematic Review, 48 J. Critical Care 

78 (Dec. 2018). 

72 Gary Albrecht et al., The Disability Paradox: 

High Quality of Life Against All Odds, 48 Soc. Sci. 

Med. 977 (Apr. 1999); Sonia Frick et al., Medical 

Futility: Predicting Outcome of Intensive Care Unit 

Patients by Nurses and Doctors—a Prospective 

Comparative Study, 456 Critical Care Med. (Feb. 

2003); Lisbeth ;rtenblad et al., Users’ Experiences 

With Home Mechanical Ventilation: A Review of 

Qualitative Studies, Respiratory Care 1157 (Sep. 

2019); Peter A. Ubel et al., Whose Quality of Life? 

A Commentary Exploring Discrepancies Between 

Health State Evaluations of Patients and the 

General Public, Quality of Life Research, 599 (Sept. 

2003). 

73 J.R. Curtis et al., Use of the Medical Futility 

Rationale in Do-Not-Attempt-Resuscitation Orders, 

273 JAMA 124, 125 (1995). 

74 Id. See also Gary Albrecht et al., The Disability 

Paradox: High Quality of Life Against All Odds, 48 

Soc Sci Med. 977 (Apr. 1999). 

75Maryam Aghabaray et al., Medical Futility and 

its Challenges: A Review Study, 9 J. of Med. Ethics 

and History of Med. 11 (2016), https://www.ncbi.

nlm.nih.gov/pmc/articles/PMC5203684/. 

76Nat’l Council on Disability, Medical Futility 

and Disability Bias, Part of the Bioethics and 

Disability Series (2019), https://ncd.gov/sites/ 

default/files/NCD_Medical_Futility_Report_508.pdf; 

Maryam Aghabaray et al., Medical Futility and its 

Challenges: A Review Study, 9 J. Med. Ethics & 

History of Med. 11 (2016), https://www.ncbi.

nlm.nih.gov/pmc/articles/PMC5203684/; Dominic J. 

Wilkinson et al., Knowing When to Stop: Futility in 

the Intensive Care Unit, 2 Current Op. in 

Anesthesiology 24 (2011), https://www.ncbi.

nlm.nih.gov/pmc/articles/PMC3252683/ 

(recognizing that judgments concerning qualitative 

futility led to cessation of care in intensive care 

units). 

77 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 Am. J. 

Respiratory & Critical Care Med. 1318 (June 2015). 

recent research has documented that a 

large proportion of practicing 

physicians in the United States hold 

biased perceptions of people with 

disabilities, in particular perceiving 

people with disabilities as having worse 

quality of life (in contrast to the selfperception of many people with 

disabilities themselves).67 Such 

perceptions of the quality of life of 

people with disabilities can play a role 

in the discriminatory use of futility 

determinations to deny medically 

effective care. 

Of particular concern are 

determinations by providers that an 

intervention should not be provided if 

it ‘‘fails to return or sustain an 

acceptable quality of life’’ for a patient 

in the judgment of the provider, even if 

the patient or their authorized 

representative would consider such an 

outcome acceptable.68 For example, the 

idea that if treatment ‘‘cannot end 

dependence on intensive medical care, 

the treatment should be considered 

futile,’’ 69 may discriminate against 

people whose disabilities create 

continuing support needs. Similarly, 

some sources have defined futility in 

terms of an inability to exit a hospital 

or institutional long-term care setting 70

or a patient’s reliance on others for 

activities of daily living.71 When these 

definitions are used to deny care to 

people with disabilities, they are likely 

to be discriminatory. 

Physicians discriminate on the basis 

of disability when they act based on 

judgments that a patient’s life is not 

worth living because they have a 

disability that substantially limits their 

major life activities and bodily 

functions, e.g., they may need assistance 

with the activities of daily living. 

Denying a medical treatment on that 

basis if the treatment would be provided 

to a similarly situated patient without a 

disability is discrimination on the basis 

of disability. As discussed earlier in this 

section, 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.72

One study of the application of 

medical futility determinations found 

that mobility status, and particularly a 

patient’s immobility (defined as being 

‘‘bed-bound or only able to move from 

bed to chair’’), played a significant role 

in providers’ determinations of 

qualitative futility—that is, 

determinations that an intervention will 

not return or sustain an acceptable 

quality of life—suggesting that 

physicians may be more likely to 

determine that a patient’s likely 

outcome is unacceptably poor and 

should thus be considered medically 

futile if the patient has a mobility 

impairment.73 In the same study, onethird of the determinations of futility 

based on perceptions of a patient’s 

quality of life were made without a 

discussion with the patient about their 

perception of their quality of life, a 

significant problem given that patients 

frequently report substantially different 

perceptions of their own quality of life 

than their physicians assume.74 A 2016 

review found that futility 

determinations continue to be used by 

physicians and that such judgments 

often take into account clinician 

perceptions of patient quality of life, 

including dependence on life-sustaining 

equipment, devices, and medications.75

This clinical literature supports the 

view that qualitative futility judgments 

are used to deny access to lifesustaining care against the wishes of the 

patient or their authorized 

representative based on clinician 

judgments that the life of a given patient 

with a disability is not worth living.76

In 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,’’ 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.’’ 77

Disability and civil rights 

organizations have expressed serious 

concern regarding disability 

discrimination in medical futility 

decisions and other areas regarding 

denial of life-sustaining care. In a July 

10, 2018, letter from 22 disability 

organizations to OCR and to HHS’ 

Administration for Community Living 

(ACL), the writers noted that sometimes 

medical determinations of futility are 

motivated by inappropriate 

consideration of cost or value judgments 

regarding the quality of life of 

individuals with disabilities seeking 

life-saving medical treatment rather 


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78Letter from 22 organizations to U.S. Dep’t of 

Health & Hum. Servs., Off. for Civil Rts and Admin. 

for Cmty. Living (July 10, 2018), on file with OCR. 

79Letter from Matt Valliere et al., on behalf of 17 

organizations, to U.S. Dep’t of Health & Hum. 

Servs., Off. for Civil Rts (May 6, 2019), on file with 

OCR. 

80See Memorandum from Ronald Newman et al., 

American Civil Liberties Union, to U.S. Dep’t of 

Health & Hum. Servs., Off. for Civil Rts. (Sep. 3, 

2019), on file with OCR. 

81See, e.g. Letter from Nat’l Council on Disability 

to U.S. Dep’t of Health & Hum. Servs., Off. for Civil 

Rts., (Dec. 11, 2019) (HHS on assisted suicide, 

medical futility and QALYs reports), https://

ncd.gov/publications/2019/ncd-letter-hhs-3- 

bioethics-reports; Letter from Nat’l Council on 

Disability to U.S. Dep’t of Health & Hum. Servs., 

Off. for Civil Rts., (Mar. 18, 2020) (addressing 

COVID–19, https://ncd.gov/publications/2020/ncdcovid-19-letter-hhs-ocr; Letter from Consortium of 

Citizens with Disabilities to Sec’y Azar, U.S. Dep’t 

of Health & Hum. Servs. & Roger Severino, Director, 

OCR, (Mar. 20, 2020) (addressing COVID–19 and 

disability discrimination), https://www.c-c-d.org/ 

fichiers/Letter-re-COVID-19-and-DisabilityDiscrimination-final.pdf; Letter from 27 Members of 

the House and five Senators to Alex Azar, Sec’y, 

U.S. Dep’t of Health & Hum. Servs. & Bill Barr, Att’y 

Gen., U.S. Dep’t of Justice, (Mar. 25, 2020) (urging 

HHS, AG to Protect Disability Community), https:// 

chrissmith.house.gov/uploadedfiles/2020-03-25_

bipartisan_bicameral_letter_to_hhs_and_doj_-_

covid-19_and_disability_discrimination.pdf; Letter 

from eight senators to Sec’y. Azar, Admin. Verma, 

and Dir. Severino U.S. Dep’t of Health & Hum. 

Servs (Apr. 10, 2020) (related to Rationing of Care) 

https://www.warren.senate.gov/imo/media/doc/

2020.04.09%20Letter%20to%20HHS%20OCR%

20re%20Rationing%20of%20Care.pdf; Letter from 

eight senators to Sec’y. Azar, Admin. Verma, and 

Dir. Severino U.S. Dep’t of Health & Hum. Servs 

(Apr. 10, 2020) (related to Rationing of Care) 

https://www.warren.senate.gov/imo/media/doc/

2020.04.09%20Letter%20to%20HHS%

20OCR%20re%20Rationing%20of%20Care.pdf; 

Press Release, Am. Assoc. People with Disabilities, 

Over 400 Organizations Urge Department of Health 

and Human Services to Issue Guidance to Prohibit 

Discrimination during Medical Rationing (Apr. 17, 

2020), https://www.aapd.com/press-releases/civilrights-letter-covid-medical-rationing/

?fbclid=IwAR0uKHogSaq8zknb--gVKL9- 

oplHXyX1a1lGpyx306WHpr0ZQWoxSk2C1oM; 

Letter from Autistic Self Advocacy Network, 

DREDF, Epilepsy Foundation, Justice in Aging and 

The Arc of the United State to Melanie Fontes 

Rainer, Acting Dir., OCR and Samuel Bagenstos, 

General Counsel, U.S. Dep’t of Health & Hum. 

Servs. (Aug. 18, 2022), on file with OCR. Over 400 

Organizations Urge Department of Health and 

Human Services to Issue Guidance to Prohibit 

Discrimination during Medical Rationing (Apr. 17, 

2020), https://www.aapd.com/press-releases/civilrights-letter-covid-medical-rationing/

?fbclid=IwAR0uKHogSaq8zknb--gVKL9- 

oplHXyX1a1lGpyx306WHpr0ZQWoxSk2C1oM; 

Letter from Autistic Self Advocacy Network, 

DREDF, Epilepsy Foundation, Justice in Aging & 

The Arc of the United State to Melanie Fontes 

Rainer, Acting Dir., OCR & Samuel Bagenstos, Gen. 

Counsel, U.S. Dep’t of Health & Hum. Servs. (Aug. 

18, 2022), on file with OCR. 

82On March 25, 2020, a bipartisan bicameral 

Congressional coalition sent then-Secretary Azar 

and then-Attorney General Barr a letter asking HHS 

to notify states of their civil rights obligations as 

they review and develop their crisis standards of 

care. Lankford, Gillibrand Lead Bipartisan, 

Bicameral Call to Protect Civil Rights for People 

with Disabilities Amidst COVID–19 Pandemic, 

lankford.senate.gov (Mar. 25, 2020). This call 

followed an earlier letter to OCR by the National 

Council on Disability asking for similar guidance. 

Letter from Nat’l Council on Disability to U.S. Dep’t 

of Health & Hum. Servs., Off. for Civil Rts. (Mar. 

18, 2020), https://www.ncd.gov/publications/2020/ 

ncd-covid-19-letter-hhs-ocr. Since the NCD letter, a 

variety of national organizations representing 

broad-based constituents have reached out to OCR 

with similar requests, including the Consortium on 

Citizens with Disabilities, Cystic Fibrosis Research, 

Inc., the Disability Rights Education and Defense 

Fund, the National Disability Rights Network, 

National Right to Life, and others. 

83See U.S. Dep’t of Health & Hum. Servs., Off. for 

Civil Rts. OCR Resolves Complaint with Tennessee 

After it Revises its Triage Plans to Protect Against 

Disability Discrimination (Jun. 26, 2020), https://

www.hhs.gov/about/news/2020/06/26/ocr-resolvescomplaint-tennessee-after-it-revises-its-triage-plansprotect-against-disability.html. 

84See U.S. Dep’t of Health & Hum. Servs., Off. for 

Civil Rts., OCR Resolves Complaint with Utah After 

it Revised Crisis Standards of Care to Protect 

Against Age and Disability Discrimination (Aug. 20, 

2020), https://www.hhs.gov/about/news/2020/08/ 

20/ocr-resolves-complaint-with-utah-after-revisedcrisis-standards-of-care-to-protect-against-agedisability-discrimination.html. 

85See U.S. Dep’t of Health & Hum. Servs., Off. for 

Civil Rts., OCR Provides Technical Assistance to 

Ensure Crisis Standards of Care Protect Against Age 

and Disability Discrimination (Jan. 14, 2021), 

https://www.hhs.gov/about/news/2021/01/14/ocrprovides-technical-assistance-ensure-crisisstandards-of-care-protect-against-age-disabilitydiscrimination.html. 

86See id. 

87See U.S. Dep’t of Health & Hum. Servs., Off. for 

Civil Rts., OCR Provides Technical Assistance to 

the State of Arizona to Ensure Crisis Standards of 

Care Protect Against Age and Disability 

Discrimination (May 25, 2021), https://

www.hhs.gov/about/news/2021/05/25/ocr-providestechnical-assistance-state-arizona-ensure-crisisstandards-care-protect-against-age-disabilitydiscrimination.html. 

88U.S. Dep’t of Health & Hum. 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/index.html. 

than an assessment of the individual’s 

ability to benefit from treatment.78

On May 6, 2019, a coalition of 17 

leading organizations that advocate for 

or serve individuals with disabilities 

wrote to OCR, raising selected disability 

discrimination issues.79 They pointed to 

‘‘so-called ‘futile care’ laws and policies, 

which allow doctors to deny lifesustaining treatment to individuals with 

disabilities who want and need it.’’ On 

September 3, 2019, the American Civil 

Liberties Union wrote a letter to OCR 

highlighting that medical futility 

determinations are an area of concern 

for discrimination against individuals 

with disabilities.80 OCR has also heard 

from stakeholders that discrimination in 

medical futility determinations and 

biased provider counseling remain 

sources of concern for people with 

disabilities and may result in the denial 

of medically effective life-sustaining 

treatment against the wishes of patients 

with disabilities and their authorized 

representatives.81

Crisis Standards of Care 

When an emergency or crisis has a 

substantial effect on usual health care 

operations and the level of care that is 

possible to deliver, hospitals and health 

systems may adopt crisis standards of 

care. These policies may authorize or 

recommend prioritization of scarce 

resources through means not used 

outside of crisis conditions. OCR 

received numerous complaints against 

states alleging disability discrimination 

relating to crisis standards of care 

during the early months of the COVID– 

19 public health emergency. Federal 

agencies, advocates, the media, 

members of the public, and other 

stakeholders also raised general 

concerns about the potential for 

discrimination on the basis of disability 

in the application of these standards.82

OCR resolved a number of civil rights 

complaints and provided technical 

assistance to recipients, including 

complaints against Tennessee,83 Utah,84

North Carolina,85 several regional 

consortia of hospital systems within 

Texas,86 and Arizona,87 among others, 

regarding application of their triage and 

ventilator allocation guidelines to 

individuals with disabilities. In 

February 2022, OCR released a guidance 

document entitled ‘‘Frequently Asked 

Questions for Providers during the 

COVID–19 Public Health Emergency: 

Federal Civil Rights Protections for 

Individuals with Disabilities under 

Section 504 and Section 1557.’’ The 

document includes a section on crisis 

standards of care.88 The guidance was 

intended to assist states and providers 

seeking to comply with applicable civil 

rights laws during the COVID–19 public 

health emergency. That guidance was 

specific to the circumstances of the 

COVID–19 pandemic. The Department 

proposes to address in this proposed 

regulation the application of section 504 

to the allocation of scarce medical 

treatments or other resources more 

generally. 

The COVID–19 public health 

emergency has illustrated the 

importance of regulating in this area, 

including within the context of crisis 

standards of care. For example, many 

crisis standards of care protocols issued 

prior to and during the COVID–19 

public health emergency included 

categorical exclusions of people with 

disabilities from access to critical care 

despite their possessing the potential to 

benefit from treatment. Recipients may 

not categorically exclude individuals 

with disabilities or groups of 

individuals with disabilities from 

critical care provided that treatment is 


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89Ari Ne’eman et al., The Treatment of Disability 

under Crisis Standards of Care: an Empirical and 

Normative Analysis of Change over Time during 

COVID–19, 45 J. Health Polit. Policy Law 831 

(2021), https://doi.org/10.1215/03616878-9156005. 

90U.S. Dep’t of Health & Hum. 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/index.html. 

91Nat’l Acad. of Science, Engineering & Med., 

Improving Representation in Clinical Trials and 

Research: Building Research Equity for Women and 

Underrepresented Groups, The Nat’l Acad. Press 

(2022), https://doi.org/10.17226/26479. 

92Willyanne 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. 

93U.S. Dep’t of Health & Hum. 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/index.html. 

94See id. at Question 7. 

95 Id. 

not futile for said individuals. 

Judgments of futility may not be based 

on criteria otherwise prohibited in this 

section or elsewhere in section 504.89

Similarly, many crisis standards of care 

protocols included other forms of 

discrimination on the basis of disability 

that did not involve categorical 

exclusions, such as prioritizing 

resources on the basis of patients’ 

anticipated life-expectancy long after 

their acute care episode. OCR has 

previously clarified that a patient’s 

likelihood of survival long after hospital 

discharge is unlikely to be related to the 

need to make allocation decisions about 

scarce resources on a temporary basis or 

the effectiveness of the medical 

interventions being allocated, and thus 

should not be used as a prioritization 

criterion in crisis standards of care 

protocols.90

Participation in Clinical Research 

Clinical research participation can 

offer considerable benefit to both the 

individuals participating within it 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. Longstanding 

literature, including a recent report from 

the National Academies of Science, 

Engineering and Medicine, has 

highlighted the problem of the systemic 

exclusion of women, people of color, 

and other marginalized groups from 

clinical research.91 Such exclusions 

harm those who are denied the direct 

benefits of research participation. They 

also threaten 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 also face 

systemic and unnecessary exclusion 

from clinical research.92 Although study 

exclusions can be justifiable based on 

the nature of the clinical research being 

conducted, exclusions 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. They also may be the 

result of overly broad exclusion 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 

exclusion 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. 

Similarly, overly broad exclusion 

criteria 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 with persons who are 

deaf, have vision loss, or otherwise need 

alternative forms of communication. 

Nondiscriminatory Criteria 

Section 84.4(b)(4), while being revised 

in the amendment segment of this 

proposed rule, results in the text being 

redesignated as § 84.68(b)(3), prohibits 

the use of discriminatory methods of 

administration, criteria, and protocols, 

including discrimination in the 

allocation of scarce resources. Resources 

necessary for medical treatment are 

sometimes scarce for a variety of 

reasons. A therapeutic agent or vaccine 

may be newly developed, and 

production may not yet have caught up 

to the level of demand for it. More 

generally, supply chain issues may 

prevent drugs, devices, and equipment 

from getting to places where they are 

needed. And, as was evidenced in the 

response to COVID–19, medical 

emergencies may overtax hospitals and 

the larger health care system. In 

circumstances like these, recipients may 

find it necessary to create a protocol or 

methodology for allocating those 

treatments and resources. 

This section does not require 

hospitals or the broader health care 

system to allocate resources in any 

specific way; it just prohibits them from 

using criteria that subject individuals 

with disabilities to discrimination on 

the basis of disability. For example, as 

OCR has previously indicated in 

guidance,93 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. 

Similarly, if recipients deny a patient 

with disabilities access to resources 

because of forecasts that the person may 

not live as long as an individual without 

a disability after treatment, this may 

also discriminate against persons with 

disabilities.94 The further in the future 

a provider looks to establish a patient 

survival prediction, the less likely that 

prediction will be related to the medical 

effectiveness of the resources being 

rationed during the temporary shortage, 

and doing so may screen out people 

with disabilities without being 

necessary to operate a program of 

critical care.95

Certain criteria for allocating scarce 

medical treatments may discriminate 

against people with disabilities even if 

they rely on predictions of short-term 

mortality. For example, 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 


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96Am. 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/5cf7d27396

d7760001307a44/t/5ecfb6fff13530766aeae51a/

1590671105171/Ventilator+-+Policy+Statement+w

+Addendum.pdf. 

97U.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/index.html. 

98See Bragdon v. Abbott, 524 U.S. 624 (1998). 

HIV is contained in the list of physical or mental 

impairments in the ADA regulations and it 

substantially limits major life activities because it 

affects the immune system and the reproductive 

system. 35 CFR 35.108. Similarly, under the section 

504 regulations that mirror the ADA language, HIV 

will virtually always be found to be an impairment 

that substantially limits a major life activity. HIV 

infection typically leads to a determination of 

disability. In addition, the patient in this example 

would be protected under the ‘‘regarded as’’ 

provision based on the recipient’s action and 

justification. 

99 29 U.S.C. 794(b). 

100 524 U.S. 206 (1998). 

101 Id. at 212 (internal quotation marks omitted). 

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 shortterm mortality. As a result, the use of 

the SOFA with patients with such 

underlying disabilities may lead to an 

unduly pessimistic prediction of shortterm 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.’’ 96

Similar impacts may exist for other 

types of disabilities and other 

prognostic scoring tools, measures, 

diagnostic instruments, and 

methodologies for assessment or the 

allocation of scarce medical resources. 

The general requirement that 

recipients must provide reasonable 

modifications when necessary to avoid 

discrimination that appears in proposed 

§ 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 assess the inability of a person with 

cerebral palsy to articulate words, but it 

would be discriminatory to use that 

determination to indicate an actual 

mortality risk that is not implied by that 

disability. Similarly, some crisis 

standards of care protocol have used 

‘‘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. However, 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.97

§ 84.56(a) Discrimination Prohibited 

Proposed § 84.56(a) confirms the basic 

requirement that 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. Section 84.56(a) makes specific 

the general prohibition of disabilitybased discrimination proposed in 

§ 84.68(a), as well as the general 

prohibition that applies to health, 

welfare, and other social services in 

§ 84.52(a), and underscores that those 

prohibitions broadly apply to medical 

treatment decisions made by recipients. 

For example, a patient with HIV seeks 

surgery for an orthopedic condition. A 

recipient refuses to provide treatment 

because of a belief that individuals with 

HIV are responsible for their condition 

and should thus not receive costly 

medical resources. This rationale is 

discriminatory on the basis of disability 

in this context.98 Similarly, this 

paragraph would cover situations where 

a recipient declines to treat a person 

with certain disabilities, including 

psychiatric, intellectual, and 

developmental disabilities because the 

treating professional is uncomfortable 

providing care based on stereotypical 

beliefs about persons with that 

disability, or where the recipient 

declines to treat persons with a 

substance use disorder based on a belief 

that these persons are less likely to 

comply with treatment protocols. 

Scope of Discrimination Prohibited 

The text of section 504 is clear and 

broad. Section 504 prohibits 

discrimination on the basis of disability 

in programs or activities receiving 

Federal financial assistance. Section 

504’s ‘‘program or activity’’ language 

provides no basis for excluding some 

activities in which recipients engage— 

such as medical treatment—from the 

statute’s facially broad coverage. A 

recipient’s failure to provide treatment 

to an individual with disabilities who 

meets all qualifications for the medical 

treatment results in a denial of health 

care to a person with disabilities and, 

barring any applicable limitation, 

constitutes discrimination in violation 

of section 504. 

The intended breadth of section 504 

is reflected in the Civil Rights 

Restoration Act (CRRA), which made 

clear that section 504 applies to ‘‘all the 

operations of an entity that receives 

Federal financial assistance.’’ 99 As 

amended by the CRRA, section 504’s 

‘‘program or activity’’ language provides 

no basis for excluding some actions in 

which recipients engage—such as 

medical treatment—from the statute’s 

facially broad coverage. In addition, in 

interpreting the ADA, which is modeled 

on section 504—the Supreme Court has 

recognized the law’s broad coverage in 

accordance with its language. In 

particular, in Pennsylvania Department 

of Corrections v. Yeskey, the Supreme 

Court refused to carve prison conditions 

cases out of title II’s coverage.100 When 

the state argued that prison conditions 

were significantly different than the 

circumstances that Congress sought to 

address in the statute, the Court 

responded, ‘‘the fact that a statute can 

be applied in situations not expressly 

anticipated by Congress does not 

demonstrate ambiguity. It demonstrates 

breadth.’’ 101


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102 476 U.S. 610, 624 (1986). 

103 524 U.S. 624, 649 (1998). 

104 729 F.2d 144 (2d Cir. 1984). 

105 Id. at 156. The lower court cases following 

University Hospital have relied on University 

Hospital’s reasoning: ‘‘Where the handicapping 

condition is related to the conditions to be treated, 

it will rarely, if ever, be possible to say . . . that 

a particular decision was ‘discriminatory.’ ’’ Univ. 

Hosp. at 157. In Johnson v. Thompson, one of 

University Hospital’s progeny, the court, addressing 

potential medical interventions for a newborn 

infant with Spina Bifida, noted that situations exist 

where individuals with disabilities could be 

considered ‘‘otherwise qualified’’ even under 

University Hospital’s view of ‘‘otherwise qualified.’’ 

Johnson v. Thompson, 971 F.2d 1487,1493 (10th 

Cir. 1992). 

106See, e.g., Schiavo ex rel. Schindler v. Schiavo, 

403 F.3d 1289, 1294 (11th Cir. 2005) (‘‘The Rehab 

Act, like the ADA, was never intended to apply to 

decisions involving . . . medical treatment.’’). 

107United States v. Univ. Hosp., 729 F.3d at 157 

(‘‘Where the [disabling] condition is related to the 

condition(s) to be treated, it will rarely, if ever, be 

possible to say with certainty that a particular 

decision was ‘discriminatory’.’’). 

108See Cushing v. Moore, 970 F.2d 1103, 1109 (2d 

Cir. 1992) (‘‘[A]s we have observed in the past, we 

must be careful in applying § 504’s ‘otherwise 

qualified’ language to programs where a patient’s 

[disability] gives rise to the need for the services in 

question.’’); Johnson by Johnson v. Thompson, 971 

F.2d 1487, 1494 n. 3 (10th Cir. 1992) (following 

University Hospital but recognizing that section 504 

might be violated where ‘‘the [disability] that forms 

the basis of the section 504 discrimination bears no 

relation to the medical treatment sought but 

denied’’); Schiavo ex rel. Schindler v. Schiavo, 403 

F.3d 1289, 1294 (11th Cir. 2005) (following 

University Hospital and Johnson based on the 

conclusion that the plaintiff sought treatment to 

alleviate the very condition that constituted a 

disability). 

109See, e.g., Lesley v. Chie, 250 F. 3d 47, 55 (1st 

Cir. 2001) (finding that, for example, ‘‘a plaintiff 

may argue that her physician’s decision was so 

unreasonable—in the sense of being arbitrary and 

capricious—as to imply that it was pretext for some 

discriminatory motive . . .’’). 

110 Id.; see also Glanz v. Vernick, 756 F. Supp. 

632, 638 (D. Mass. 1991) (‘‘A strict rule of deference 

would enable doctors to offer merely pretextual 

medical opinions to cover up discriminatory 

decisions.’’). 

Indeed, the Supreme Court has itself 

applied both section 504 and the ADA 

to medical treatment decisions. In 

Bowen v. American Hospital 

Association, seven justices considered 

on the merits the argument that section 

504 prohibited the withholding of 

medical care; the plurality found no 

violation of section 504 on the 

particular facts of that case because the 

lack of consent for treatment made the 

infants at issue not ‘‘otherwise 

qualified.’’ 102 And in Bragdon v. 

Abbott, the Court held that title III of the 

ADA applied to a dentist’s refusal to fill 

the cavity of a patient with HIV, and 

that the dentist could defeat the lawsuit 

only if he could show that treating the 

patient presented ‘‘significant health 

and safety risks’’ based ‘‘on medical or 

other objective evidence.’’ 103

Some lower Federal courts have 

questioned the manner and reach of 

section 504 as applied to medical 

treatment decisions. In United States v. 

University Hospital, the Second Circuit 

considered the application of section 

504 to infants born with multiple birth 

defects.104 The court stated that the 

law’s term ‘‘otherwise qualified’’ could 

not ordinarily be applied ‘‘in the 

comparatively fluid context of medical 

treatment decisions without distorting 

its plain meaning.’’ 105 Some courts have 

read this language as broadly suggesting 

that section 504 does not apply to 

medical treatment decisions. 106 But 

that is not the fairest reading of 

University Hospital. The Second Circuit 

there principally relied on the argument 

that it will often be difficult to identify 

discrimination when an individual 

challenges a covered entity’s treatment 

of the underlying disability itself.107

The lower court cases following 

University Hospital seem to draw the 

same line.108

Consistent with what we believe to be 

the correct reading of the statute and the 

case law, we propose in this rule to 

draw a distinction between 

circumstances where individuals are 

seeking treatment for the underlying 

disability and those in which 

individuals are seeking treatment for a 

separately diagnosable condition or 

symptom. Compare proposed 

§ 84.56(b)(1) (providing specific, albeit 

non-exhaustive, circumstances in which 

forbidden discrimination exists whether 

or not the individual seeks treatment for 

a condition or symptom that is 

separately diagnosable from the 

underlying disability) with proposed 

§ 84.56(b)(2) (providing a broader 

general rule of nondiscrimination for 

cases in which a recipient uses the 

underlying disability as the basis for 

discriminating against an individual 

who seeks treatment for a separately 

diagnosable symptom or medical 

condition). 

As discussed below, with respect to 

separately diagnosable conditions, the 

proposed rule does not require that the 

condition 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. 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. 

In circumstances in which an 

individual is seeking treatment for a 

condition that is not ‘‘separately 

diagnosable’’ under proposed 

§ 84.56(b)(2), the rule’s application is 

relatively narrow but nonetheless is 

critical to prevent prohibited 

discrimination. Consistent with 

proposed § 84.56(c)(1)(ii), the rule 

would not apply if the refusal to treat is 

in 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 rule, 

however, specifies in proposed 

§ 84.56(c)(1)(ii) that providers do not 

make legitimate medical judgments 

when they base decisions on the criteria 

contained in § 84.56(b)(1)(i)–(iii): ‘‘[b]ias 

or stereotypes about a patient’s 

disability,’’ ‘‘[j]udgments that the 

individual will be a burden on others,’’ 

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.’’ 

The recognition of the need to defer 

to reasonable medical judgment but to 

prohibit biased decision-making is 

consistent with University Hospital and 

other lower court cases. Even assuming 

those cases were correctly decided on 

their facts, none of them suggest that 

bias is permissible under section 504 

simply because there is a relationship 

between a sought-after medical 

treatment and an underlying 

disability.109 In such circumstances, the 

rule ensures that medical judgment is in 

fact being exercised with respect to the 

person with a disability’s qualification 

for that treatment. Lower courts have 

applied section 504 to medical 

treatment decisions consistent with this 

approach.110

Proposed § 84.56(b) elaborates on the 

basic requirement in § 84.56(a) by 

providing a non-exhaustive set of 

examples of conduct that would violate 

that requirement. 

§ 84.56(b)(1) Denial of Medical 

Treatment 

Proposed § 84.56(b)(1) addresses 

denial of treatment. It makes explicit 

that a recipient is prohibited from 

denying or limiting medical treatment to 

a qualified individual with a disability 


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111 469 U.S. 287, 301 (1985). 

112 480 U.S. 273, 284 (1987). 

when the denial is based on (i) bias or 

stereotypes about a patient’s disability; 

(ii) judgments that an 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 a lesser value than that of 

a person without a disability, or that life 

with a disability is not worth living. 

This paragraph reflects a straightforward 

application of the prohibition on 

discriminating against qualified 

individuals with disabilities on the 

basis of a disability. Denying, limiting, 

or withholding treatment for any of the 

prohibited reasons is discrimination on 

the basis of disability because the 

decision is driven by the recipient’s 

perception of disability rather than by 

consideration of effectiveness of the 

treatment or other legitimate reasons. 

As defined in the proposed rule at 

§ 84.10, a ‘‘qualified individual with a 

disability’’ is ‘‘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.’’ Proposed § 84.56(b)(1) 

clarifies that bias, stereotypes, 

judgments about burden on others, and 

beliefs that disabled lives have lesser 

value or worth or are not worth living 

are not permissible ‘‘essential’’ 

eligibility requirements for medical 

treatment. As noted by the Supreme 

Court in Alexander v. Choate, to treat 

such discriminatory factors as 

‘‘qualifications’’ under section 504 

would impermissibly allow the 

‘‘benefit’’ at issue to ‘‘be defined in a 

way that effectively denies qualified 

individuals [with disabilities] the 

meaningful access to which they are 

entitled.’’ 111

In School Board of Nassau County v. 

Arline, the Supreme Court said that in 

section 504, ‘‘Congress acknowledged 

that society’s accumulated myths and 

fears about disability and disease are as 

[disabling] as are the physical 

limitations that flow from actual 

impairment.’’ 112 The impermissible 

factors set forth in the proposed rule 

exemplify the harmful impact of the 

myths, fears, and stereotypes that 

Congress targeted in the statute. As 

discussed above, there is significant 

evidence that assessments of the impact 

of a disability on quality of life may lead 

a provider to make medical decisions 

that reflect myths, fears, and 

stereotypes, and tend to screen out 

individuals with disabilities or classes 

of individuals with disabilities from 

fully and equally enjoying the benefits 

of medical treatment. 

Proposed paragraph 84.56(b)(1)(i) 

confirms the prohibition against 

denying or limiting medical treatment 

based on bias or stereotypes. For 

example, refusing to provide a person 

with an Opioid Use Disorder (OUD) a 

referral for Medications for Opioid Use 

Disorder (MOUD) due to a provider’s 

belief that persons with OUD will not 

adhere to treatment protocols would be 

prohibited under this paragraph. 

Proposed paragraph (b)(1)(ii) prohibits 

denying or limiting medical treatment 

based on judgments that an individual 

will be a burden on others due to their 

disability, including but not limited to 

caregivers, family, or society. For 

example, § 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. 

Proposed paragraph (b)(1)(iii) 

prohibits 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. For example, 

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 longterm 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 lifesustaining 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. 

For example, a patient with 

Alzheimer’s disease covered as a 

disability under section 504 has 

developed pneumonia and is in need of 

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 such support, 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. 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 proposed § 84.56(b)(1)(iii). If 

the physician also denied the ventilator 

support because of a perception that it 

would be a burden for his husband to 

care for the patient, the physician would 

also have violated § 84.56(b)(1)(ii). 

As another example, 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 


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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 

§ 84.56(b)(1)(iii). 

The Department notes that this 

provision does not require clinicians or 

other health care providers to offer 

medical treatment that is outside their 

scope of practice. That a treatment is 

outside the typical scope of practice of 

a given provider is a legitimate 

nondiscriminatory reason for the denial 

or limitation of treatment. However, if 

the 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 this 

paragraph. 

§ 84.56(b)(2) Denial of Treatment for a 

Separate Symptom or Condition 

Proposed § 84.56(b)(2) addresses 

situations where a person with a 

disability seeks or consents to treatment 

for a separately diagnosable symptom or 

medical condition, whether or not the 

symptom or condition is itself a 

disability or is causally connected to the 

disability that is the basis for coverage 

under section 504. (In this proposed 

rule, we use the phrase ‘‘underlying 

disability’’ to refer to a disability that 

triggers coverage under section 504 and 

that is different than the separately 

diagnosable symptom or medical 

condition for which the patient seeks 

treatment.) Often individuals with a 

disability will seek treatment for a 

separately diagnosable symptom or 

medical condition. For example, 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. The section makes 

clear 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, including based 

on predictions about the long-term 

impact of the underlying disability on 

the individual’s life expectancy. 

Violations of § 84.56(b)(1)(iii) may 

also violate § 84.56(b)(2). For example, 

as described above in the discussion of 

§ 84.56(b)(1)(iii), a recipient who denies 

a ventilator to a patient with severe 

Alzheimer’s disease who has 

pneumonia because of a belief that the 

patient’s life is not worth living based 

on their disability has violated 

§ 84.56(b)(1)(iii) if the ventilator would 

have been offered to a similarly situated 

individual without an underlying 

disability, in this case, Alzheimer’s 

disease. In addition, the recipient has 

also violated § 84.56(b)(2) because of the 

denial of treatment of a separate 

condition. 

As another example described above 

in the discussion of § 84.56(b)(1)(iii), a 

recipient who withholds antibiotics and 

other medical care from a teenage boy 

with intellectual and developmental 

disabilities because of a belief that the 

boy’s life has a lesser value than the life 

of a person without a disability violates 

§ 84.56(b)(1)(iii) when the antibiotics 

and medical care would have been 

offered to a similarly situated individual 

without an underlying disability . In 

this situation, § 84.56(b)(2) has also been 

violated because of the failure to treat a 

separate condition. 

For purposes of proposed paragraph 

(b)(2), it does not matter whether the 

symptom or condition for which the 

individual is seeking treatment is also a 

disability under section 504. Heart 

conditions, COVID–19, and depression 

could all meet the statute’s definition of 

disability in appropriate circumstances, 

but people who experience 

discriminatory treatment for these 

conditions based on an underlying 

disability are entitled to the protections 

of this paragraph. 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. 

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 of a judgment 

regarding the disability of Down 

syndrome, or a refusal to treat 

depression because of a patient’s 

underlying spinal cord injury, will 

violate this paragraph if it is made on 

the basis of the prohibited grounds. 

• Medical Treatment Question 1: We 

recognize that the line between 

disabilities may in some cases be more 

difficult to draw than in these examples, 

and we welcome comment on the best 

way of articulating the relevant 

distinctions. 

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. The crucial point is that where 

a qualified individual or their 

authorized representative seeks or 

consents to treatment for a separately 

diagnosable symptom or condition, a 

recipient may not deny or limit that 

treatment if it would offer that treatment 

to a similarly situated person without 

the underlying disability. In each of 

these cases, the recipient will have 

discriminated against a qualified 

individual with a disability on the basis 

of disability in violation of proposed 

§ 84.56(b)(2). 

These obligations must be interpreted 

in light of the rule of construction in 

proposed § 84.56(c) on professional 

medical judgment, which 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, 

under this rule of construction, 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. 

§ 84.56(b)(3) Provision of Medical 

Treatment 

Proposed § 84.56(b)(3) addresses 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— 

proposed § 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 

violated proposed § 84.56(b)(3) if the 

provider prescribes contraception for 

her other patients without disabilities. 

However, proposed § 84.56(b)(3) does 

not prohibit a recipient from providing 


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113Buck v. Bell, 274 U.S. 200, 207 (1927). 

114Linda Villarosa, ‘‘The Long Shadow of 

Eugenics in America,’’ N.Y. Times (Jun. 8, 2022). 

115 Id. 

116Nat’l Women Law Ctr., Forced Sterilization of 

Disabled People in the United States, 56 (Jan. 2022), 

https://nwlc.org/wp-content/uploads/2022/01/

%C6%92.NWLC_SterilizationReport_2021.pdf and 

the related Appendix, https://nwlc.org/wp-content/ 

uploads/2022/01/%C6%92.NWLC_

SterilizationReport_2022_Appendix.pdf 

(referencing laws and court decisions in California, 

Connecticut, Delaware, Georgia, Idaho, Indiana, 

Maine, Maryland, New Jersey, New York, North 

Dakota, South Carolina, and Vermont). 

117 Id. at 32. 

118This provision would not prohibit medical 

treatment where a person with a disability seeks or 

consents to sterilization. 

services or equipment to an individual 

with an underlying disability 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 not violate 

§ 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. 

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 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 

directly inhibit the utility of the 

generally more effective drug, the 

individual would not be qualified for 

that treatment under this part. 

The Department proposes this 

provision in part to address 

discriminatory conduct based on the 

belief that persons with disabilities are 

entitled to less bodily autonomy than 

nondisabled persons—a belief that 

underpins the history of forced 

sterilization provided as ‘‘medical 

treatment’’ for individuals with 

intellectual, mental health, and 

developmental disabilities. In the 

twentieth century, over thirty states 

allowed and funded involuntary 

sterilization of disabled women and 

men with disabilities. In 1927, the 

Supreme Court sanctioned such 

sterilization programs in Buck v. Bell, 

ruling that ‘‘society can prevent those 

who are manifestly unfit from 

continuing their kind . . . Three 

generations of imbeciles are 

enough.’’ 113 States continued to use 

Federal funds for forced sterilizations of 

institutionalized individuals until 1978, 

when HEW published regulations 

requiring the ‘‘institutionalized’’ 

individual’s informed consent to the 

procedure. 

Yet, many individuals who were 

subjected to such involuntary 

sterilizations experienced and continue 

to experience trauma and grief because 

of these State-sanctioned practices. In 

June 2022, the New York Times ran a 

story about the lingering trauma for 

three Black sisters with disabilities who 

were sterilized in 1973 without their or 

their parents’ informed consent because 

clinic workers judged them 

‘‘intellectually inferior.’’ 114 Three 

states—Virginia, North Carolina, and 

California—offer compensation to 

victims of State-sanctioned programs.115

While State-run sterilization programs 

have ended, involuntary sterilization 

continues today. According to a 2021 

report, fourteen states allow a judge to 

order the sterilization of a person with 

a disability who is not under 

guardianship.116 Although specific 

cases are difficult to identify due to the 

secrecy surrounding the procedure, the 

Department believes that this is an 

important area in which to regulate in 

order to protect the rights of persons 

with disabilities.117 The proposed rule 

would bar recipients from performing 

sterilization on the basis of disability to 

an individual with a disability where 

they would not provide the same 

treatment to an individual without a 

disability, unless it has a medical effect 

on the condition to which the treatment 

is directed.118

• Medical Treatment Question 2: The 

Department seeks comment on other 

examples of the discriminatory 

provision of medical treatment to 

people with disabilities. 

§ 84.56(c) Construction 

Proposed § 84.56(c) sets forth a series 

of principles guiding how § 84.56 

should be interpreted. 

§ 84.56(c)(1) Professional Judgment in 

Treatment 

Proposed § 84.56(c)(1) specifically 

addresses professional judgment in 

treatment and its relationship to the 

proposed nondiscrimination provisions 

regarding medical treatment. Paragraph 

(c)(1)(i) provides 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, it would not 

violate § 84.56(c)(1)(i) if a recipient 

declines to provide chemotherapy to a 

patient with a disability based on a 

judgment that it would not extend the 

patient’s life or mitigate the symptoms 

of the patient’s cancer. Similarly, a 

provider who refuses to perform 

cardiopulmonary resuscitation on a 

patient with signs of irreversible death 

or a clinician who refuses to administer 

antifungals as a treatment for a heart 

attack would not be in violation of this 

section where such interventions would 

not accomplish the intended goal of 

treatment. Nor would a recipient be in 

violation of this section if it determined 

that a patient with a disability would be 

exceedingly unlikely to survive cardiac 

surgery and thus judged that it would 

not be medically appropriate to provide 

such treatment. 

Similarly, a recipient would not be in 

violation of this section if it determined 

that 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. For 

example, should a recipient determine 

that the use of an older medication has 

a lower risk of side effects because of 

interactions with a patient’s disability as 

compared to a newer medication that is 

now commonly prescribed, using the 

older medication would not constitute 

an impermissible limitation on access to 

medical treatment. These examples, 

which are based on individualized, factspecific inquiries, are legitimate 

nondiscriminatory reasons for denying 

or limiting treatment and remain within 

the appropriate province of medical 

judgment. 

We note that proposed § 84.68(b)(8) 

permits the imposition of eligibility 

criteria that screen out people with 

disabilities from receiving the benefit of 

medical care only when they are shown 

to be necessary for the provision of this 

aid, benefit, or service. The rule does 

nothing to disturb the ability of 

physicians to exercise their professional 

judgment based on the current medical 

knowledge or the best available 

objective evidence that a treatment is or 

is not clinically appropriate. 

Paragraph (c)(1)(ii) states that 

circumstances in which the denial of 

treatment is permitted include those in 

which the recipient typically declines to 

provide the treatment to any individual, 

and those in which the recipient 


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119 476 U.S. 610, 630 (1986). 

120 Id. 

121See id. 

122 Id. at 626 n.11 (plurality opinion) (quoting the 

district court’s injunction). 

123 Id. 

124See id. 

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 

regulatory text makes clear that the 

criteria prohibited in paragraphs 

(b)(1)(i)–(iii) are not legitimate 

nondiscriminatory reasons 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. Recipients may not judge 

clinical appropriateness 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 

provider’s 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. 

A provider might also decline to 

provide a service to any individual if it 

is outside their scope of practice. For 

example, an orthopedic surgeon might 

decline to provide a treatment to 

children, including children with 

disabilities, if pediatric surgery is not 

within her scope of service. However, 

the provider could not refuse to offer 

pediatric referrals for children with 

disabilities when it typically refers 

children without disabilities to 

appropriate care. 

As another example, assume that a 

recipient decides to deny a person with 

an intellectual disability who uses 

mechanical ventilation access to soughtafter life-saving care on the grounds that 

they believe the presence of a cognitive 

disability and a need for breathing 

support together render the patient’s 

quality of life so poor as to render 

continued life of no benefit to them and 

not worth living (despite the patient 

themself or their authorized 

representative seeking life-saving 

treatment). This is not a permissible 

basis for determining that a disability 

has rendered an individual with a 

disability unqualified for treatment. Nor 

is this a legitimate nondiscriminatory 

reason for denying or limiting a health 

service on the basis of disability, as the 

denial is motivated by the provider’s 

belief that a person with a disability has 

lesser value than a person without a 

disability and that life with a disability 

is not worth living, both of which are 

prohibited under paragraph (b)(1)(iii). 

In contrast, a recipient could deny 

medical treatment to a person with a 

disability on the grounds that it is not 

clinically appropriate if it poses 

substantial added risk to the patient that 

cannot be ameliorated. For example, for 

a person with a disability at much 

higher risk of death from a potential 

surgery, a recipient’s decision not to 

provide such a surgical intervention in 

light of that heightened mortality risk 

would be a legitimate, 

nondiscriminatory reason to deny the 

surgery in question even if it was sought 

by a patient with a disability. 

Similarly, if a recipient declines to 

provide a treatment on the grounds that 

existing evidence only supports its 

medical effectiveness for a particular 

subpopulation that the patient with a 

disability seeking treatment is not a part 

of, this might be a legitimate 

nondiscriminatory reason for denying 

access to the treatment under some 

circumstances, provided the recipient 

generally denies such or similar 

treatments to patient populations for 

whom the evidentiary basis is similarly 

lacking or inconclusive. However, if a 

recipient generally provides such or 

similar treatments even in the presence 

of a similar evidentiary record for their 

effectiveness (or lack of effectiveness), 

denying such treatments to a patient 

with a disability on those grounds may 

not be a legitimate nondiscriminatory 

reason. 

The Department notes that many 

types of treatment, such as 

pharmacological interventions, are often 

studied on populations that are not 

completely representative of the general 

patient population, but these treatments 

nonetheless are routinely prescribed to 

patient populations with conditions 

excluded from participation in the 

clinical trial without further research. In 

those circumstances, it would not 

necessarily be a legitimate 

nondiscriminatory reason to deny a 

patient with a disability access to a 

broadly prescribed heart medication 

simply because patients with her 

disability were excluded from the 

clinical trial that established the 

medication’s effectiveness. However, 

should a recipient believe based on 

current medical knowledge or the best 

available objective evidence that the 

heart medication is likely to be 

ineffective, have dangerous side effects, 

or otherwise be harmful to patients with 

that disability, this would constitute a 

legitimate nondiscriminatory reason to 

deny access. Physicians have substantial 

discretion to assess mixed or 

inconclusive evidence regarding 

effectiveness according to their own 

judgment. 

• Medical Treatment Question 3: The 

Department seeks comment, including 

from health care professionals and 

people with disabilities, on the 

examples described in this section, 

whether additional examples are 

needed, and on the appropriate balance 

between prohibiting discriminatory 

conduct and ensuring legitimate 

professional judgments. 

§ 84.56(c)(2) Consent 

Proposed § 84.56(c)(2) addresses 

consent. Section 84.56(c)(2)(i) makes 

clear that this section does not require 

a recipient to provide medical treatment 

to an individual where the individual, 

or the person legally authorized to make 

medical decisions on behalf of that 

individual, does not consent to that 

treatment. This subsection thus adopts 

the plurality’s holding in Bowen v. 

American Hospital Association that the 

denial of treatment to an individual 

because of a lack of consent to treatment 

‘‘cannot violate § 504.’’ 119 (The 

Department conceded that point during 

the Bowen litigation.120) In such a case, 

the Bowen plurality said, the lack of 

consent means that the individual is not 

‘‘qualified’’ for treatment—because 

treatment without consent violates 

deep-rooted common-law principles 

endorsed in every State—and the denial 

of treatment would be based on the lack 

of consent, not on disability.121

Another issue arising from the Bowen 

litigation is the extent to which the 

Department is able to issue regulations 

concerning newborn infants. The 

district court in Bowen had ‘‘declared 

invalid and enjoined ‘[a]ny other 

actions’ of the Secretary ‘to regulate 

treatment involving impaired newborn 

infants taken under authority of Section 

504, including currently pending 

investigation and other enforcement 

actions.’ ’’ 122 But the Bowen plurality 

specifically rejected any reading of that 

injunction as barring ‘‘all possible 

regulatory and investigative activity that 

might involve the provision of health 

care to handicapped infants.’’ 123

Instead, the four-justice plurality read 

the injunction as limited to cases in 

which the Department sought to require 

medical treatment despite a lack of 

parental consent.124 Indeed, the 

plurality specifically concluded ‘‘that 

‘handicapped individual’ as used in 

§ 504 includes an infant who is born 

with a congenital defect,’’ and that the 

statute protects qualified infants against 

disability-based discrimination in 


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125 Id. at 624. 

126 Id. at 650 (White, J., dissenting). 

127See id. at 656 (‘‘Where a decision regarding 

medical treatment for a handicapped newborn 

properly falls within the statutory provision, it 

should be subject to the constraints set forth in 

§ 504. Consequently, I would reverse the judgment 

below.’’). 

128Chief Justice Burger concurred in the result 

without opinion, and therefore expressed no view 

on the issue, and Justice Rehnquist took no part in 

the decision. 

129 29 U.S.C. 794(b). 

130 Joseph Shapiro, ‘‘As Hospitals Fear Being 

Overwhelmed by COVID–19, Do the Disabled Get 

the Same Access?’’, Nat’l Pub. Radio (Dec. 14, 2020) 

https://www.npr.org/2020/12/14/945056176/ashospitals-fear-being-overwhelmed-by-covid-19-dothe-disabled-get-the-same-acc. 

131 Id. 

132Lauren Drake, New Oregon Law Bars 

Discrimination Against People with Disabilities 

During Pandemic, Or. Pub. Broadcasting (Jul. 11, 

2020), https://www.opb.org/news/article/law-barsdisability-discrimination-covid-19/. 

133Nat’l Disability Rts. Network, Devaluing 

People with Disabilities: Medical Procedures that 

Violate Civil Rights (May 2012), https://

www.ndrn.org/wp-content/uploads/2012/05/ 

Devaluing-People-with-Disabilities.pdf. 

134 Id. at 17. 

135Nat’l Council on Disability, Medical Futility 

and Disability Bias, 27 (Nov. 20, 2019), https://

ncd.gov/sites/default/files/NCD_Medical_Futility_

Report_508.pdf. 

136 Id. 

medical services.125 The three Bowen 

dissenters rejected the plurality’s 

narrow reading of the injunction; they 

believed that the district court did in 

fact bar the Department from ‘‘issu[ing] 

any regulations whatsoever that dealt 

with infants’ medical care.’’ 126 But they 

concluded that such a broad injunction 

was not consistent with the law.127 In 

short, of the seven justices who 

addressed the issue in Bowen, not one 

endorsed an injunction that would 

entirely bar the Secretary from 

regulating medical discrimination 

against disabled newborns.128

Accordingly, the Department does not 

believe that the Bowen injunction, as 

affirmed by the Supreme Court, requires 

us to carve newborns out of this rule. 

The Department does, however, follow 

the Bowen plurality in declining to 

require a recipient to provide medical 

treatment to an individual where the 

individual, or the person legally 

authorized to make medical decisions 

on behalf of that individual, does not 

consent to that treatment in situations 

where consent would typically be 

required regardless of whether the 

individual had a covered disability. 

Denial of treatment is not the only 

way a recipient can discriminate on the 

basis of disability in its covered 

programs or activities. When it enacted 

the Civil Rights Restoration Act two 

years after Bowen, Congress explicitly 

provided that section 504 applies to ‘‘all 

of the operations of’’ a covered program 

or activity.129 The operations of covered 

health care providers are not typically 

limited to providing treatments. They 

also include the provision of advice and 

the process of providing information to 

comply with informed-consent 

requirements established by state law 

and otherwise. Proposed paragraph 

(c)(2)(ii) makes clear that discrimination 

in obtaining informed consent is 

prohibited independently of whether 

that discrimination is followed by a 

decision to withhold treatment—or 

whether such a subsequent decision to 

withhold treatment is itself 

discriminatory. For example, a covered 

hospital may not repeatedly request that 

a patient with a disability (or the 

patient’s legally authorized 

representative) consent to a do-notresuscitate order, where it would not 

make such repeated requests of a 

similarly situated nondisabled patient. 

In addition, 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. 

Numerous reports have demonstrated 

the existence of this sort of biased 

treatment. The case of Sarah 

McSweeney, documented as part of a 

National Public Radio (NPR) 

investigation into multiple reports of 

individuals with disabilities pressured 

to agree to the withdrawing or 

withholding of life-sustaining care, 

offers one example of potential 

discrimination in access to lifesustaining care.130 Ms. McSweeney was 

a 45-year-old woman with multiple 

disabilities who was admitted to the 

hospital due to concerns that she may 

have contracted COVID–19. Shortly 

after arriving, her guardian received a 

call from the hospital questioning why 

her Physician Orders for Life-Sustaining 

Treatment (POLST) form indicated that 

Ms. McSweeney should receive lifesustaining treatment if she required it. 

Over the next several weeks, media 

reports indicate that hospital personnel 

pressured Ms. McSweeney’s guardian to 

consent to the withdrawal or 

withholding of life-sustaining care, 

often expressing skepticism that a 

person whose disabilities precluded 

mobility and speech could be 

considered to have quality of life. 

Ultimately, Ms. McSweeney died of 

sepsis due to aspiration pneumonia, a 

typically treatable condition, although 

her guardians repeatedly pushed for full 

care measures that the doctors declined 

to administer.131

In some cases, patients with 

disabilities with routine illnesses or 

their authorized representatives are 

pressured by their physicians to agree to 

not be resuscitated, against their desires 

and wishes,132 with potentially deadly 

consequences. For example, a 2012 

report from the National Disability 

Rights Network documented instances 

of providers steering individuals with 

disabilities or their family members to 

agree to decline life-sustaining care or 

consent to the withdrawal of lifesustaining care.133 In one instance, 

family members reported that the 

patient’s doctor informed them that 

their relative—a 72-year-old patient 

with a developmental disability—would 

have poor quality of life based on their 

disability and, as a result, life-sustaining 

treatment should no longer be used. 134

Though they initially consented to the 

withdrawal of treatment, the family 

eventually withdrew that consent, 

though they experienced pressure from 

the clinician when attempting to restore 

treatment and nutrition. 

In its report, Medical Futility and 

Disability Bias, NCD discusses the 

example of Terrie Lincoln who, at age 

19, was in an automobile accident that 

severed her spinal cord and caused her 

to become quadriplegic.135 The report 

describes that when Terrie ‘‘was in the 

hospital just following her accident, 

Terrie’s doctors repeatedly tried to 

influence her family to ‘pull the plug,’ 

stating that Terrie was a ‘vegetable’ and, 

even if she were to regain 

consciousness, would have no quality of 

life.’’ 136 When Terrie did regain 

consciousness, she was pressured by her 

doctors to forego additional medical 

treatment that would extend her life due 

to judgments that life with the disability 

of quadriplegia was not worth living. 

This would be a violation of the 

proposed regulation under both 

84.56(b)(1) and (c)(2)(ii). Terrie 

persisted, later coming off the ventilator, 

earning degrees in social work and 

public administration, and becoming a 

disability rights advocate and mother. It 

is the Department’s intent for the 

proposed § 84.56(c)(2)(ii) to apply both 

to instances in which a recipient seeks 

consent to withdraw care in situations 

where the withdrawal of care would not 

be sought from a person without a 

disability (such as to deny routine care 

for a treatable medical condition for 

which the patient has given no 

indication that they wish to decline 

treatment) and situations where the 

manner in which consent is sought is 

discriminatory in nature (such as by 


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137This requirement with regard to the provision 

of information is not a new standard and is 

consistent with similar requirements in the medical 

ethics context. See, e.g., Am. Med. Ass’n., Code of 

Med. Ethics, Chap. 2: Opp. on Consent, 

Communication and Decision Making (2019), 

https://www.ama-assn.org/system/files/2019-06/ 

code-of-medical-ethics-chapter-2.pdf. 

138Letter from Louis Sullivan, Sec’y, U.S. Dep’t 

of Health and Human Servs., to Barbara Roberts, 

Governor, State of Or. (Aug. 3,1992), reprinted in 

1992 CCH Medicare-Medicaid Guide New Devs. 

40,406A, HHS Papers Explaining Rejection of 

Oregon Medicaid Waiver, HHS News Release, 

Secretarial Letter, and Analysis (Aug. 3, 1992) (the 

waiver was later approved after significant 

modification). 

139 Id. 

140 42 U.S.C. 1320e–1(c)(1). In addition, recent 

legislation has been introduced in the House of 

Representatives to ban the use of QALYs outright 

in federally funded health programs. See Protecting 

Health Care for All Patients Act of 2023, H.R. 485, 

118th Congress (2023) (Report No. 118–65, Part I). 

141 42 U.S.C. 1320e–1(e). 

142See NCIL Resolution Opposing the Use of 

QALYs (Quality-Adjusted Life Years), Not Dead Yet, 

http://notdeadyet.org/ncil-resolution-opposing-theuse-of-qalys-quality-adjusted-life-years (last visited 

May 22, 2023) (Not Dead Yet and the Autistic SelfAdvocacy Network joined in the resolution); see 

also Not Dead Yet, NCIL Membership Adopts 

Resolution Opposing Health Insurers’ Use of 

QALYs (2020), https://notdeadyet.org/2020/08/ncilmembership-adopts-resolution-opposing-healthinsurers-use-of-qalys.html; Disability Rts. Educ. and 

Def. Fund (DREDF), Pharmaceutical Analyses Based 

on the QALY Violate Disability Nondiscrimination 

Law (Sept. 21, 2021), https://dredf.org/2021/09/23/ 

pharmaceutical-analyses-based-on-the-qaly-violatedisability-nondiscrimination-law/ (‘‘[T]he QALY 

relies on a set of discriminatory assumptions that 

devalue life with a disability, disadvantaging 

people with disabilities seeking to access care based 

on subjective assessments of quality of life.’’); Lives 

Worth Living: Addressing the Fentanyl Crisis, 

Protecting Critical Lifelines, and Combatting 

Discrimination Against Those with Disabilities: 

Hearing on H.R. 467, H.R. 498, H.R. 501, and H.R. 

485 Before the Subcomm. on Health of the H. 

Comm. on Energy and Commerce, 118th Cong. 

(2023) (statement of Kandi Pickard, President & 

CEO, Nat’l Down Syndrome Society), https://

d1dth6e84htgma.cloudfront.net/Witness_

Testimony_Pickard_HE_02_01_2023_

065c903370.pdf?updated_at=2023-01- 

30T21:38:38.787Z (speaking on her support of 

Protecting Health Care for All Patients Act, H.R. 

485, 118th Cong. (2023)). As discussed elsewhere in 

this preamble section, value assessment methods 

that may be discriminatory when used to determine 

people with disabilities’ access to goods and 

services may not be discriminatory in another 

context (i.e., their use purely for academic 

research). Some general statements about QALY, 

such as the one quoted in this footnote, do not 

distinguish between various types of QALY 

calculations or uses of the concept. 

143See 45 CFR 84.52(a). 

144See, e.g., Disability Rts. Educ. & Def. Fund 

(DREDF), Pharmaceutical Analyses Based on the 

QALY Violate Disability Nondiscrimination Law 

(2021), https://dredf.org/wp-content/uploads/2021/ 

09/ICER-Analyses-Based-on-the-QALY-ViolateDisability-Nondiscrimination-Law-9-17-2021.pdf. 

pressuring patients with a disability or 

their authorized representatives to agree 

to provide consent to decline or 

withdraw treatment or to agree to a 

particular advanced care planning 

decision authorizing such declining or 

withdrawal in the future). 

§ 84.56(c)(3) Providing Information 

Proposed § 84.56(c)(3) addresses the 

information exchange between the 

recipient and the patient with a 

disability concerning the provision of 

information and potential courses of 

treatment and their implications, 

including the option of foregoing 

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 

regarding the implications of different 

courses of treatment based on current 

medical knowledge or the best available 

objective evidence.137 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, as proposed 

§ 84.56(c)(2)(ii) indicates, the recipient 

is prohibited from discriminating on the 

basis of disability in seeking consent for 

the decision to treat or to forego 

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 proposed 

§ 84.56(b)(1)(i)–(iii). 

The Department realizes that 

providing regulatory requirements 

concerning medical treatment requires 

careful consideration. 

• Medical Treatment Question 4: The 

Department seeks comment from all 

stakeholders on the risks and benefits of 

the proposed regulatory choices that the 

Department has put forth in this section. 

• Medical Treatment Question 5: The 

Department also seeks comment on 

whether the term ‘‘medical treatment’’ 

adequately encompasses the range of 

services that should be covered under 

this nondiscrimination provision. 

§ 84.57 Value Assessment Methods 

The proposed rule seeks to address 

discrimination on the basis of disability 

in the use of value assessment methods. 

The Department has been aware of 

potential disability discrimination in 

value assessment for some time. For 

example, in 1992, the Department 

declined to authorize a demonstration 

program in Oregon that relied on the use 

of the Quality Adjusted Life Year 

(QALY), one specific methodology of 

value assessment whose application in 

Oregon (and common application 

elsewhere in the present day) 

discounted the value of life extension 

on the basis of disability, to determine 

whether certain treatments for people 

living with certain disabilities would be 

covered. The Department cited concerns 

of discrimination in value assessment 

methods in its response, stating that 

‘‘Oregon’s plan in substantial part 

values the life of an individual with a 

disability less than the life of an 

individual without a disability. This 

premise is discriminatory and 

inconsistent with the Americans with 

Disabilities Act.’’ 138 The Department 

further noted that this discrimination 

and inconsistency stemmed, in part, 

from the approach that ‘‘quantifies 

stereotypic assumptions about persons 

with disabilities.’’ 139 In 2010, Congress 

prohibited the use of the QALY in 

Medicare 140 and within the Patient 

Centered Outcomes Research Institute 

created by the ACA.141 Many disability 

rights advocates have expressed 

concerns about disability discrimination 

in value assessment methods.142

Despite this prior history, value 

assessment methods have been 

increasingly used by recipients to 

determine the cost-effectiveness of 

goods and services. These 

determinations can inform price 

negotiations, value-based purchasing 

arrangements that link provider 

payment to performance and outcomes, 

and other things that affect the degree to 

which individuals can access aids, 

benefits, or services, as well as the terms 

or conditions under which they can 

access them. 

Not all methods of value assessment 

or their uses are discriminatory. Many 

value assessment methods can play an 

important role in cost containment and 

quality improvement efforts. However, 

the Department is concerned that some 

value assessment frameworks that have 

been adopted by recipients may 

discriminate on the basis of disability, 

in violation of existing prohibitions 

against such discrimination in health 

services.143 In this rulemaking, the 

Department seeks to explicitly apply 

these obligations to the use of value 

assessment methods and provide 

relevant information for recipients on 

their application. The Department has 

focused on methods that discount the 

value of life extension for people with 

disabilities in this proposed rule, as the 

vast majority of documentation of 

disability discrimination concerns in 

value assessment have focused on the 

discounting of life extension.144

Where value assessments use methods 

for calculating value that place a lower 

value on life extension for a group of 

individuals based on disability and 

where such methods are then used to 


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145Kurtzke Expanded Disability Status Scale 

(EDSS), Nat’l Multiple Sclerosis Soc’y, http://

www.nationalmssociety.org/nationalmssociety/ 

media/msnationalfiles/brochures/10-2-3-29-edss_

form.pdf (last visited May 22, 2023). 

146 Inst. for Clinical & Econ. Rev., Siponimod for 

the Treatment of Secondary Progressive Multiple 

Sclerosis: Effectiveness and Value, Final Evidence 

Report, p. 52 (2019), https://icer.org/wp-content/ 

uploads/2020/10/ICER_MS_Final_Evidence_

Report_062019.pdf (citing Annie Hawton & Colin 

Green, Health Utilities for Multiple Sclerosis, 19 

Value Health 460–468 (2016)). 

147Michael S. Schechter et al., Inhaled 

Aztreonam Versus Inhaled Tobramycin in Cystic 

Fibrosis: An Economic Valuation. 12 Annals of the 

Am. Thoracic Soc’y 1030–38 (2015); Inst. for 

Clinical & Econ. Rev., Modular Treatments for 

Cystic Fibrosis: Effectiveness and Value: Final 

Evidence Report and Meeting Summary, p. 66 

(2020), https://icer.org/wp-content/uploads/2020/ 

08/ICER_CF_Final_Report_092320.pdf. 

148Nat’l Council on Disability, Quality-Adjusted 

Life Years and the Devaluation of Life with 

Disability, p. 39 (2019), https://ncd.gov/sites/ 

default/files/NCD_Quality_Adjusted_Life_Report_

508.pdf. The NCD Report stated: ‘‘By favoring those 

with no functional impairments, the protocols 

implicitly endorse the belief that the lives of 

individuals without disabilities are more valuable 

than that of their unfortunate counterparts’’ (citing 

Wendy Hensel et al., Playing God: The Legality of 

Plans Denying Scarce Resources to People with 

Disabilities in Public Health Emergencies, 63 Fla. L. 

Rev. 755 (2011)). Note that the discussion of QALY 

in the NCD report applies to uses of QALY 

associated with life extension, not to other uses of 

value assessment that assess effects of a health care 

intervention on quality of life without discounting 

the value of life-extension. The concern articulated 

in the report does not apply to the latter use case. 

149Nat’l Council on Disability, Quality-Adjusted 

Life Years and the Devaluation of Life with 

Disability, 13–14 (2019), https://ncd.gov/sites/ 

default/files/NCD_Quality_Adjusted_Life_Report_

508.pdf. 

150N.Y. State Dep’t of Health, N.Y. State 

Medicaid Drug Utilization Review (DUR) Board 

Meeting Summary (Apr. 26, 2018), https://

www.health.ny.gov/health_care/medicaid/program/ 

dur/meetings/2018/04/summary_durb.pdf. 

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, a recipient using 

such value assessment methods for 

these purposes is in violation of section 

504. For example, a recipient that uses 

a value assessment method that assigns 

a greater value to extending the life of 

people without disabilities than to 

extending the life of people with 

disabilities to determine whether a 

particular drug will be subject to 

additional utilization management 

controls or placed on a higher tier of a 

formulary would likely violate section 

504. The recipient is using a value 

assessment that assigns a greater value 

to extending the life of people without 

disabilities with respect to the eligibility 

or referral for, or provision or 

withdrawal of an aid, benefit, or 

service—in this instance, to determine 

the terms or conditions under which 

they are made available. 

An analysis from the Institute for 

Clinical and Economic Review (ICER)— 

whose work is often used to inform 

decision-making by recipients—valued 

a year of life of a person with multiple 

sclerosis with a score of eight on the 

Expanded Disability Status Scale 

(describing an individual who relies 

entirely on a wheelchair for mobility but 

is nonetheless able to be out of bed for 

much of the day 145) at 0.0211, 

representing approximately a 98% 

reduction in value relative to a year of 

life for a healthy, nondisabled 

person.146 Similarly, another report 

from ICER valued a year of life with 

cystic fibrosis with a ppFEV1 (percent 

predicted forced expiratory volume in 

one second, an established measure of 

lung function for cystic fibrosis) 

between 20–29% at 0.653, representing 

a 34.7% reduction in value relative to a 

year of life for a healthy, nondisabled 

individual.147 When a recipient uses 

these life extension valuations with 

respect to 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, it ascribes a 

lower value to extending the lives of 

people with specific disabilities relative 

to extending those without disabilities 

or with other disabilities. 

This remains the case even if the 

value of extending the lives of people 

with disabilities is compared to a less 

discounted population rather than a 

hypothetical non-disabled, healthy 

adult. For example, a value assessment 

calculation using a general population 

average utility of 0.816 for life extension 

for persons without cystic fibrosis and 

a utility of 0.653 for life extension for 

persons with cystic fibrosis would still 

assign lower value to extending the lives 

of persons with cystic fibrosis relative to 

persons without. The outcome remains 

the same even if the general population 

was also receiving a less severe discount 

to the value of life extension. 

Recipients often rely on value 

assessments to make decisions regarding 

coverage, cost, and other decisions with 

serious implications for access for 

individuals with disabilities. Relying on 

a measure that discounts the value of 

extending the lives of people with 

disabilities relative to people without 

disabilities raises serious concerns in 

light of the consequences for access for 

individuals with disabilities. It is 

important that recipients do not engage 

in discriminatory uses of value 

assessment methods. 

In its report, ‘‘Quality-Adjusted Life 

Years and the Devaluation of Life with 

Disability,’’ NCD discussed the way that 

the QALY places a lower value on 

extending the lives of individuals with 

disabilities and chronic illnesses.148

NCD notes that a variety of alternative 

nondiscriminatory methods exist, and 

provided examples. The Department 

declines to endorse any specific method 

in this rulemaking. NCD noted that 

many payers, including those who 

receive Federal financial assistance such 

as State Medicaid agencies, have made 

use of or planned to make use of value 

assessments in a discriminatory fashion 

in order to evaluate particular health 

care interventions.149 For example, in 

April 2018, one State’s Medicaid Drug 

Utilization Review Board made use of a 

$150,000 per QALY threshold for 

valuing a treatment for cystic fibrosis, 

calculated based on an analysis that 

assigned a lower value to extending the 

lives of persons with cystic fibrosis than 

persons without cystic fibrosis.150

For the reasons discussed above, the 

Department proposes to add § 84.57 on 

value assessment methods, indicating 

that 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. The proposed provision does 

not identify the use of any specific 

method of value assessment but instead 

prohibits 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 note that the discriminatory use of 

a measure by a recipient constitutes a 

violation of this provision, not 

necessarily that the measure itself does. 

The use of such a measure in a 

discriminatory fashion could come 

about through a variety of mechanisms, 

including, but not limited to: (1) the use 

of a threshold that uses such a measure 

(such as a cost-per-QALY threshold) for 

purposes of determining coverage or the 

imposition of additional terms or 

conditions for availability of a 

intervention, (2) the use of such a 

measure for ranking interventions 

relative to each other within or between 

disease categories, or (3) otherwise 

making use of such analyses to inform 

reimbursement or utilization 


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151Nat’l Council on Disability, Rocking the 

Cradle: Ensuring the Rights of Parents with 

Disabilities and Their Children (Sept. 27, 2012), 

www.ncd.gov/publications/2012/Sep272012/. 152 Id. at 77–78. 

153 Id. at 94. 

154 Id. at 89. 

155See 42 U.S.C. 671(a)(15)(D)(i). States are not 

required to provide assistance or services to prevent 

removal or reunify children when the parent has 

subjected a child to aggravated circumstances as 

defined by State law. 

156Nat’l Council on Disability, supra note 152 at 

91. See also Traci LaLiberte et al., Child Protection 

Services and Parents with Intellectual and 

Developmental Disabilities, 30 J. Appl. Res 

Intellectual Disability, 30: 521–532 (2017), https:// 

pubmed.ncbi.nlm.nih.gov/28000335/. 

157 Id. at 94. 

management decisions even if they are 

not by themselves dispositive. In 

contrast, the proposed provision would 

permit the use of such measures that 

were not 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; for example, in 

academic research. Accordingly, 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. However, a 

recipient who makes use of such 

academic research for purposes of 

determining eligibility, referral for, or 

provision or withdrawal of an aid, 

benefit, or service may still violate 

section 504 if the use of the 

methodology employed within the 

research product is discriminatory when 

applied in the new context. 

Similarly, elements of value 

assessment methods that are 

discriminatory in some contexts—such 

as for valuing life extension—may not 

be discriminatory in other contexts. For 

example, the use of utility weights for 

valuing quality of life improvements can 

be used in a way that is not 

discriminatory, even if the use of the 

same utility weights to discount life 

extension would be discriminatory, if 

used to restrict or limit access by people 

with disabilities. For example, if 

recipients use a measure of value that 

does not discount the value of life 

extension on the basis of disability but 

does use utility weights for valuing 

quality of life improvements from a 

treatment in a way that is not 

discriminatory, such use of utility 

weights for assessing quality of life 

improvements likely would not violate 

this provision. However, using a 

measure that does discount lifeextension to restrict or limit access 

could violate the proposed provision. 

• Value Assessment Methods 

Question 1: The Department seeks 

comment on how value assessment tools 

and methods may provide unequal 

opportunities to individuals with 

disabilities. 

• Value Assessment Methods 

Question 2: The Department seeks 

comment on other types of disability 

discrimination in value assessment not 

already specifically addressed within 

the proposed rulemaking. 

• Value Assessment Methods 

Question 3: The proposed value 

assessment provision applies 

specifically to contexts in which 

eligibility, referral for, or provision or 

withdrawal of an aid, benefit, or service 

is being determined. The preamble 

discussion of the provision clarifies that 

the provision would not apply to 

academic research alone. However, the 

Department seeks comment on the 

extent to which, despite this intended 

specificity, the provision would have a 

chilling effect on academic research. 

§ 84.60 Children, Parents, Caregivers, 

Foster Parents, and Prospective Parents 

With Disabilities in the Child Welfare 

System 

Children, parents, caregivers, foster 

parents, and prospective parents with 

disabilities may encounter a wide range 

of discriminatory barriers when 

accessing critical child welfare 

programs and services that are designed 

to protect children and strengthen 

families. These barriers arise in a variety 

of contexts, including parent-child 

reunification services; policies or 

practices that discourage and/or 

prohibit parents from receiving 

assistance with childcare 

responsibilities from professional and 

natural supports; and safety and risk 

assessment policies that conflate 

disability with parental unfitness. 

Federally funded child welfare 

programs and activities are covered 

social service programs under section 

504. As such, the children with 

disabilities served by the child welfare 

system, as well as parents, caregivers, 

foster parents, and prospective parents 

with disabilities, are within the class of 

individuals with disabilities to whom 

section 504 protections extend. The 

Department proposes to add a new 

§ 84.60 to the section 504 regulation that 

will more clearly apply the 

nondiscrimination requirements of 

section 504, which are consistent with 

and reflect the requirements of the ADA, 

to child welfare programs and activities. 

Additionally, the proposed section adds 

specific regulatory provisions that 

illustrate the types of child welfare 

actions that are prohibited 

discrimination under section 504. 

A 2012 NCD report, ‘‘Rocking the 

Cradle: Ensuring the Rights of Parents 

with Disabilities and Their 

Children,’’ 151 found that parents with 

disabilities involved in the child welfare 

system have experienced 

disproportionately higher rates of child 

removals than nondisabled parents 152

and are often presumed to be unfit 

because of their disabilities.153 Parents 

with disabilities have also been 

inappropriately referred to ‘‘one size fits 

all’’ reunification services.154 Some 

jurisdictions, where State law has 

explicitly allowed courts to consider 

whether the presence of a disability 

makes a parent unable to discharge their 

responsibilities, have denied disabled 

parents access to reunification services. 

For example, as of 2015, 33 states’ 

statutes expressly included a parent’s 

disability as an aggravated 

circumstance 155 that allows a court to 

bypass the reunification process by 

deeming that the disability makes the 

parent unlikely to benefit from 

reunification services.156 While most 

State laws do not allow for an automatic 

disqualification based on disability, the 

inclusion of disability as an aggravating 

circumstance invites unfounded 

presumptions by the courts and 

administering State agencies that 

disability in and of itself, can be 

disqualifying. 

NCD’s report provided case studies 

where children were removed from 

parents based on the presumption of 

unfitness due to parental disability. The 

report includes ten case studies of 

parents with disabilities with firsthand 

experience with the child welfare 

system. The studies provide examples of 

discriminatory barriers and bias parents 

with disabilities encounter at key 

decision points in the child welfare 

system, including reporting for abuse 

and neglect, safety and risk assessments, 

case opening, and permanency decision. 

One study described the experience of 

a couple who were presumed to be unfit 

to care for their two-day-old daughter 

because both parents were blind. The 

concerns centered on the parents’ visual 

impairments, the mother’s unsuccessful 

first attempts at breastfeeding, and the 

parents’ lack of specialized parenting 

training. The infant was held in state 

custody for 57 days until a court 

dismissed the child protective action 

against the parents.157

Another case study described the 

experience of a mother with intellectual 

disabilities who lived in supported 


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158 Id. at 97. 

159 Id. at 97. 

160 Id. at 132 (citing David McConnell et al., 

Stereotypes, Parents with Intellectual Disability and 

Child Protection, 24 J. Soc. Welfare & Fam. L. 3, 297 

(2002)). 

161 Id. 

162 Id. at 133 (citing Teresa Ostler, Assessment of 

Parenting Competency in Mothers with Mental 

Illness, Univ. of Chicago (2008)). 

163Ella Callow et al., Judicial Reliance on 

Parental IQ in Appellate-Level Child Welfare Cases 

Involving Parents with Intellectual and 

Developmental Disabilities, 30 J. Appl. Res. 

Intellectual Disabilities 553, 555–56 (2017). 

164 ‘‘RESOLVED, That the American Bar 

Association urges all federal, state, territorial, and 

tribal governments to enact legislation and 

implement public policy providing that custody, 

visitation, and access shall not be denied or 

restricted, nor shall a child be removed or parental 

rights be terminated, based on a parent’s disability, 

absent a showing—supported by clear and 

convincing evidence—that the disability is causally 

related to a harm or an imminent risk of harm to 

the child that cannot be alleviated with appropriate 

services, supports, and other reasonable 

modifications . . . FURTHER RESOLVED, That the 

American Bar Association urges all federal, state, 

territorial, and tribal governments to enact 

legislation and implement public policy providing 

that a prospective parent’s disability shall not be a 

bar to adoption or foster care when the adoption or 

foster care placement is determined to be in the best 

interest of the child.’’ Am. Bar Ass’n, ABA Policy 

Resolution 114: Disabled Parents and Custody, 

Visitation, and Termination of Parental Rights, 

(Feb. 6, 2017), https://www.americanbar.org/ 

content/dam/aba/administrative/commissiondisability-rights/114.pdf. 

165Heller Sch. for Soc. Pol’y and Mgmt., Brandeis 

U., NRCPD, Map of Current State Legislation 

Supporting Parents with Disabilities, https://heller.

brandeis.edu/parents-with-disabilities/map/ 

index.html (last updated (Oct. 9, 2020).), https://

heller.brandeis.edu/parents-with-disabilities/map/ 

index.html). 

166Nat’l Council on Disability, supra note 152 at 

18. 

167The Adoption and Foster Care Analysis and 

Reporting System (AFCARS) collects case-level 

information on all children in foster care and those 

who have been adopted with Title IV–E agency 

involvement. See U.S. Dep’t of Health & Hum. 

Servs., Admin. for Children & Families, AFCARS 

Report # 28 (Nov. 19, 2021), https://

www.acf.hhs.gov/cb/report/afcars-report-28. 

housing with her five-year-old daughter 

and received ongoing parent-child 

intervention services. As a result of 

Intelligence Quotient (IQ) testing, social 

workers convinced the mother to allow 

visits between her daughter and her 

estranged nondisabled father, despite 

the mother’s reluctance.158 Social 

workers insisted that visits with the 

father continue even after the mother 

reported that her daughter was afraid of 

the father and had suddenly started 

wetting herself. The visits terminated 

after a police investigation and medical 

examination substantiated allegations of 

sexual abuse by the father, though the 

social workers still questioned the 

mother’s parenting ability.159 The 

experience of this mother and daughter 

is an example of how negative 

assumptions about IQ as an indicator of 

parenting skills served as a basis to 

question the mother’s ability to safely 

care for and protect her daughter. 

In examining the use of IQ scores to 

determine a parent’s capacity or fitness 

to safely care for a child, NCD found 

that, particularly for parents with 

intellectual disabilities, reliance on the 

tests results in high rates of removal and 

loss of child custody. These tests 

continue to be administered for the 

purpose of child custody planning 

despite the research evidence 

demonstrating that parental IQ is a poor 

predictor of parenting competence.160

When norm-referenced assessments are 

used, (e.g., measures or assessments that 

compare a person’s knowledge or skills 

to the knowledge or skills of a group 

considered to be normal), the parenting 

practices and behaviors of parents with 

intellectual disability are ‘‘judged 

subnormal and inadequate rather than 

simply different.’’ 161 IQ tests are some 

of the best-known examples of such 

norm-referenced assessments. NCD also 

found that ‘‘sole reliance on the IQ, 

resulting in diagnosis of intellectual 

disability, leads to states having ‘bypass’ 

statutes,’ ’’ where child removals may 

occur simply on a categorical or 

diagnostic basis, without any 

individualized assessment or 

observation of parenting.162 Similar to 

the NCD report, a 2017 review of 

appellate court cases that culminated in 

termination of parental rights where 

parents had intellectual and 

developmental disabilities found a 

continued uncritical reliance on 

parental IQ to assess parental fitness. 

The study found: 

[In] a majority of US cases involving a 

parent with intellectual and developmental 

disabilities, appealing a termination of their 

parental rights, parental IQ or intellectual 

functioning range often was considered and 

relied upon by the court in upholding the 

decision. The rate of reversal was far lower 

than the dependency and general civil bench 

trial rates of reversal. It is worrying that 

while every decision was reasoned 

differently, and all cases had multiple issues, 

the courts consistently considered parental 

IQ, rarely reviewed evaluation methods and 

results and frequently made statements that 

reflected a view of parental IQ as static, fixed 

and necessarily undermining of parenting 

capacity and ability to learn.163

Support for protecting the rights of 

parents, caregivers, foster parents, and 

prospective parents with disabilities 

involved in the child welfare system 

continues to gain momentum. In 2017, 

the American Bar Association adopted a 

resolution urging Federal, State, 

territorial, and tribal governments to 

enact legislation and implement policies 

limiting the circumstances when a 

parent’s disability could be a basis for 

the denial of parental access to their 

child or termination of parental rights, 

or when a prospective parent’s 

disability could be a bar in adoption and 

foster care.164 Seventeen states have 

enacted laws prohibiting the use of 

parental disability as a basis for denial 

or restriction of parenting 

responsibilities.165

OCR has received over 300 

complaints alleging disability 

discrimination in child welfare services 

and activities within the last six years. 

The complaints allege discrimination in 

a wide range of child welfare services 

that are subject to nondiscrimination 

requirements including: child 

protection investigations; child and 

family assessments; case plan 

development; parent-child visitation; 

child placement decision-making; 

provision of community-based services; 

foster and adoptive parent assessments; 

and determinations to terminate parentchild reunification efforts. OCR’s 

investigations have revealed that some 

child welfare entities have implemented 

policies, practices, and procedures that 

contribute to unnecessary removals of 

children from parents with disabilities 

and create barriers to parent-child 

reunification, permanency planning, 

and other critical child welfare services. 

Additionally, as discussed later in this 

section, OCR has investigated 

complaints of discrimination against 

children with disabilities in the child 

welfare system. As a result of these 

investigations, child welfare entities and 

OCR have worked t together to establish 

Voluntary Resolution Agreements 

(VRA), some of which are discussed in 

greater detail below, required child 

welfare agencies to create, revise, 

establish, and implement policies, 

practices, and procedures to prohibit 

discrimination against parents with 

disabilities and ensure that the full 

range of agency programs are accessible 

to parents with physical and mental 

disabilities as required by section 504 

and title II. These complaints and VRAs 

are consistent with the 2012 NCD report 

finding that the ‘‘child welfare system is 

ill-equipped to support parents with 

disabilities and their families.’’ 166

According to data submitted to the 

Administration for Children and 

Families (ACF) through its Adoption 

and Foster Care Analysis and Reporting 

System (AFCARS) as reported in 

November 2021, more than 216,838 

children entered the U.S. foster care 

system due at least in part to safety 

concerns related to parental fitness 

during 2020.167 Thirteen percent, or 


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168Sharon DeZelar et al., Use of Parent Disability 

as a Removal Reason for Children in Foster Care in 

the U.S., 86 Children & Youth Services Rev. 128– 

134 (2018). 169E. Lightfoot, et al., Child well-being in 

Minnesota—Policy strategies for Improving Child 

Welfare Services for Parents With Disabilities and 

their Children (Child Welfare Policy Brief No. 10), 

Ctr. for Advanced Studies in Child Welfare, Univ. 

Minn. (Winter 2016). 

170 Id. 

171U.S. Dep’t Health & Hum. 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 (last visited Aug. 

17, 2022). 

172See U.S. Dep’t of Health & Hum. Servs., 

Opioid Use Disorder and Civil Rights Video and 

Webinar Series, https://ncsacw.samhsa.gov/topics/ 

medication-assisted-treatment.aspx (last visited 

June 22, 2022). 

173See U.S. Dep’t of Health & Hum. Servs., 

Voluntary Resolution Agreement between the U.S. 

Dep’t of Health & Hum. Servs., Off. for Civil Rts. 

and Oregon Dep’t of Human Serv. (Nov. 20, 2019), 

https://www.hhs.gov/sites/default/files/odhsvra.pdf. 

174U.S. Dep’t of Health & Hum. Servs., Off. for 

Civil Rts., Georgia Enters into Agreement to Ensure 

Equal Access for Individuals with Disabilities to 

Foster and Adoption Programs and Services (Jan. 

11, 2016), https://www.hhs.gov/civil-rights/forproviders/compliance-enforcement/agreements/ 

georgia-dcfs-bulletin/index.html. 

175 Id. 

28,771 children, were removed from a 

parent or caregiver based, in part, on 

‘‘Caretaker Inability to Cope Due to 

Illness or Other Reasons’’ as one of the 

circumstances associated with child’s 

removal. The AFCARS regulation 

defines ‘‘caretaker inability to cope due 

to illness or other reasons’’ as a ‘‘a 

physical or emotional illness, or 

disabling condition adversely affecting 

the caretaker’s ability to care for the 

child.’’ AFCARS submissions in 2020 

on the ‘‘Caretaker Inability to Cope’’ outof-home case data element demonstrate 

that a caretaker’s physical illness, 

emotional illness, or disabling condition 

continues to be a factor in child 

removals. Reporting on this data 

element from 2015–2020 shows that 

title IV–E agencies removed fourteen 

percent of children who entered the 

U.S. foster care system due in part to 

safety concerns related to a caretaker’s 

physical illness, emotional illness, or 

disabling condition, i.e., concerns 

labeled ‘‘Caretaker Inability to Cope.’’ 

As noted by research published in 

Children and Youth Services Review, in 

the 2012 AFCARS data, parental 

disability was the only parental 

characteristic based on a parent’s 

physical or mental attributes categorized 

in State child welfare policies or in 

Federal data collection tools as a 

consideration when determining 

whether to remove a child from their 

home or to terminate parental rights.168

In the AFCARS data, ‘‘caretaker 

inability to cope is the only removal 

reason that is a parental characteristic 

based on a physical or mental condition 

rather than a changeable behavior.’’ 169

The data elements reviewed remained 

in place through 2020. 

The University of Minnesota, Center 

for Advanced Studies in Child Welfare 

noted in its child welfare policy brief on 

the use of parental disability as a 

consideration in removing children and 

termination of parental rights (TPR), 

that having parental disability listed as 

a removal reason or as grounds for TPR 

‘‘can lead those involved in the system 

to believe that parental disabilities lead 

to abuse, rather than focusing on how to 

appropriately provide services.’’ 170

In 2015, in response to increased 

disability-related child welfare 

complaints and calls from entities such 

as NCD for the Federal Government to 

take immediate action to protect the 

rights of individuals with disabilities, 

OCR, ACF, and DOJ jointly published 

‘‘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.’’ 171 The technical 

assistance document provides important 

information to assist child welfare 

agencies and courts in meeting their 

obligations under Federal disability 

rights laws to provide equal access to 

child welfare services and activities in 

a nondiscriminatory manner. HHS also 

published an online video training 

series to educate child welfare 

practitioners about the application of 

Federal disability rights laws to child 

welfare programs and activities. The 

series provides an overview of Federal 

disability rights laws, discusses 

protections that apply to some 

individuals in recovery, and promotes 

awareness of Medication Assisted 

Treatment and Medications for Opioid 

Use Disorder (MOUD) as an effective 

approach to the treatment of substance 

use disorders.172

Despite HHS efforts to raise awareness 

of Federal disability rights protections, 

OCR continues to receive new 

complaints about discrimination against 

individuals with disabilities in the child 

welfare system. These cases involve, for 

example, the removal of children from 

parents with intellectual disabilities. In 

the section that follows, we discuss 

complaints where child welfare 

agencies allegedly made custody 

decisions based on stereotypes of 

disability, failed to offer reasonable 

modifications in the parental evaluation 

process, and failed to recognize the need 

for modifications on the basis of 

disability as required by section 504. 

The creation of revised policies and 

procedures by each of these agencies 

shows that the many child welfare 

agencies’ current policies do not reflect 

the longstanding antidiscrimination 

requirements of section 504. This 

rulemaking seeks to clarify child welfare 

agency obligations and alleviate the 

need to correct agency policies through 

enforcement actions. 

Reasonable Modifications for Parents 

With Disabilities in the Child Welfare 

System 

In a recent case, OCR investigated 

allegations involving a State child 

welfare agency’s removal of two infant 

children from a mother and father with 

intellectual disabilities. The parents 

alleged that the State agency acted based 

in significant part on their IQ scores. 

OCR’s investigation raised concerns that 

the agency subjected parents with 

intellectual disabilities to unlawful 

treatment when it removed the children 

from their custody, refused to reunify 

them with their children, limited their 

visitation rights, and failed to provide 

them with appropriate reunification 

services. In response to that 

investigation, the state agency agreed to 

update those policies to clarify that it 

will not make decisions about whether 

a participant with a disability represents 

a threat to the safety of a child on the 

basis of stereotypes or generalizations 

about persons with disabilities, or on a 

participant’s diagnosis or intelligence 

measure (e.g., IQ score) alone. The 

agency also agreed that, as part of its 

assessment process, participants with 

actual or suspected disabilities can be 

referred to appropriate medical, mental 

health, or other professionals to obtain 

specific necessary information (such as 

reasonable modifications).173

In another case, an OCR investigation 

revealed that a State denied a 

prospective parent with chronic fatigue 

syndrome and other disabilities the 

opportunity to become a foster parent. 

OCR determined that the child welfare 

agency failed to make an individualized 

assessment of the applicant’s ability to 

be a foster/adoptive parent and 

improperly used disability as a criterion 

to make placement decisions.174 OCR 

also found that the agency failed to 

consider whether support services 

offered to other foster/adoptive parents 

would have allowed the applicant to 

participate in the program if they were 

made available.175 In response to OCR’s 


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176See U.S. Dep’t of Health & Hum. Servs., 

Settlement Agreement between the U.S. Dep’t of 

Health & Hum. Servs., Off. for Civil Rtss and the 

GA Dep’t of Human Res. (Dec. 15, 2015), https:// 

www.hhs.gov/sites/default/files/dfcs-revisedsettlement-agreement.pdf. 

177See U.S. Dep’t of Health & Hum. Servs., 

Voluntary Resolution Agreement between the U.S. 

Dep’t of Health & Hum. Servs., Off. for Civil Rts. 

and the W.V. Dep’t of Health & Hum. Servs, Bureau 

for Child. & Families (Apr. 22, 2020), https://

www.hhs.gov/sites/default/files/ocr-agreementwith-wv-dhhr.pdf. 

178U.S. Dep’t of Health & Hum. Servs., U.S. Dept 

of Justice, Letter from the U.S. Dep’t of Justice, Civil 

Rts. Division and U.S. Dep’t of Health & Hum. 

Servs., Off. for Civil Rts. to the M.A. Dep’t of 

Children and Families (Jan. 29, 2015), https://

www.hhs.gov/sites/default/files/mass_lof.pdf. 

179See U.S. Dep’t of Health & Hum. Servs., U.S. 

Dep’t of Justice, Settlement between the U.S. 

Departments of Justice and U.S. Dep’t of Health & 

Hum. Servs. and Massachusetts Department of 

Children and Families (Nov. 19, 2020), 19, 2020), 

https://archive.ada.gov/mdcf_sa.html. 

180U.S. Dep’t of Health & Hum. Servs., Off. for 

Civil Rts., HHS OCR Provides Technical Assistance 

to Ensure New Jersey Department of Children and 

Families Protect Parents with Disabilities from 

Discrimination (Nov. 13, 2020), https://public3.

pagefreezer.com/content/HHS.gov/31-12- 

2020T08:51/https://www.hhs.gov/about/news/2020/ 

11/13/hhs-ocr-provides-technical-assistanceensure-new-jersey-department-children-familiesprotect-parents-disabilities-fromdiscrimination.html. 

181Cesaire ex rel. E.B. v. Tony, No. 20–CV–61169 

(S.D. Fla. Feb. 1, 2021). 

findings, the State agency agreed to 

develop and implement standard 

operating procedures for documenting 

and assessing foster care and adoption 

program applicants and participants 

with disabilities. The agency also agreed 

to implement a process for maintaining 

a record of administration and results of 

assessments and to provide annual 

training to staff involved in assessing 

and/or supporting foster care and 

adoption program applicants and 

participants.176

OCR also investigated a complaint 

filed by an aunt and uncle who alleged 

that a State child welfare agency denied 

their request for emergency custody and 

placement of their young niece and 

nephew based on the uncle’s being in 

recovery from Opioid Use Disorder 

(OUD), and his long-term use of 

physician-prescribed Suboxone as a 

medication for opioid use disorder 

(MOUD). The investigation indicated 

that the uncle had not tested positive for 

illegal use of drugs during his treatment 

and the aunt expected to be the 

children’s primary caregiver as her 

husband worked full-time. OCR’s 

investigation identified systemic 

deficiencies regarding the agency’s 

implementation of its policies, 

practices, and procedures to ensure the 

civil rights of individuals with 

disabilities, including individuals in 

recovery from OUD, in the State child 

welfare system. To address these 

concerns, the State agency agreed to 

update its policies to clarify that section 

504 and title II of the ADA protect 

qualified individuals with substance use 

disorder from unlawful discrimination. 

The updated policies reflect that MOUD 

is not the illegal use of drugs and that 

an individual’s prescribed use of MOUD 

does not mean that the individual is 

substituting one addiction for another. 

The agency also agreed to develop and 

provide mandatory annual training for 

its staff on the requirements of Federal 

civil rights laws and working with 

people with disabilities, including 

individuals in recovery from substance 

use disorder.177

After a joint investigation, OCR and 

DOJ found that a State child welfare 

agency seeking to terminate parental 

rights of a mother with a developmental 

disability violated title II of the ADA 

and section 504 by denying the mother 

supports and services provided to 

nondisabled parents and denying the 

mother reasonable modifications to 

accommodate her disability.178 The 

mother and her infant were reunified 

two years after the infant’s removal from 

the hospital. HHS and DOJ reached an 

agreement with the State agency to take 

specific actions to resolve violations of 

section 504 and title II. Among other 

actions, the agency agreed to revise its 

child welfare policies that cite disability 

or any specific disability, impairment, 

medical condition, intelligence measure 

(e.g., IQ score), or diagnosis to remove 

from the policies the mere fact of such 

disability, impairment, condition, 

intelligence measure, or diagnosis as a 

basis for removal of custody (legal, 

physical, or otherwise). The agency 

agreed the new policies would reflect 

key requirements under the ADA and 

section 504—that individuals with 

disabilities must be treated on a case-bycase basis consistent with facts and 

objective evidence and that they may 

not be treated on the basis of 

generalizations or stereotypes. The 

agency agreed to provide notice to 

individuals involved in the child 

welfare system of the process to make a 

request for reasonable modifications and 

auxiliary aids and services.179

Similarly, OCR investigated a 

complaint alleging a State agency failed 

to provide modified support services 

and modifications necessary for a young 

mother with an intellectual disability to 

have an effective and meaningful 

opportunity to reunite with her young 

child. The investigation led to 

significant technical assistance to the 

agency. The State agency revised its 

nondiscrimination policies, issued an 

administrative order committing the 

agency to inclusivity and reasonable 

modifications in the provision of child 

welfare services, and implemented new 

disability rights training for agency 

staff.180

A recent settlement of a Federal 

lawsuit brought against a State agency 

which alleged violations of the ADA 

and section 504 demonstrates the 

agency’s failure to provide required 

modifications. The plaintiff, a mother 

with physical disabilities, alleged her 

newborn son was removed from the 

hospital, four days after his birth, based 

on discriminatory assumptions about 

the parenting abilities of people with 

disabilities. The State agency and the 

parent entered into a settlement 

agreement, which requires that the State 

agency implement policy changes to 

protect the rights of people with 

disabilities from discrimination, to 

ensure (1) that an individual assessment 

of a parent’s disability is obtained prior 

to referring the family for services; (2) 

that the provision of any ‘‘reasonable 

modification’’ needed by a parent with 

a disability is made in order that the 

disabled parent can participate in 

recommended programs and/or services, 

and (3) that the agency will develop and 

implement training to address 

stereotypes about people with 

disabilities.181

The Department’s enforcement 

actions related to disability 

discrimination, as well as Federal 

litigation involving child welfare 

entities under section 504, demonstrate 

the need for rulemaking to clarify child 

welfare entities’ nondiscrimination 

obligations under the Rehabilitation 

Act. The numerous and diverse range of 

issues raised in complaints received by 

OCR show that covered child welfare 

entities need specific articulation of 

their longstanding obligations under 

section 504. 

Most Integrated Settings in Foster Care 

Child welfare agencies must place 

qualified individuals with disabilities in 

the most integrated setting appropriate 

to the needs of the child, consistent 

with the requirements of existing 

§ 84.4(b)(2) and proposed § 84.68(d), 

which is identical to 28 CFR 35.130(d) 

in the ADA title II regulations, and 

proposed § 84.76. The integration 

mandate is discussed in depth in the 

preamble discussion of § 84.76. 

Pursuant to these requirements, a 

recipient may not engage in the 

unnecessary or unjustified segregation 

of children with disabilities, such as 

default placement in institutional or 

other congregate care, and it must work 


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182U.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/pressrelease/file/1558151/download. 

183Carrie 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. 

Children & Youth Servs. Rev. 9 (2014), http://

dx.doi.org/10.1016/j.childyouth.2013.11.027. 

184Based on research finding that family homes 

improve outcomes for children in foster care, 

Federal funding policy recognizes that that 

congregate care placements should be used only 

when the child’s care needs cannot be adequately 

addressed in a less restrictive environment. See 

Bipartisan Budget Act of 2018, Public Law 115–123, 

Sec. 50742. Federal funding for congregate care, as 

a placement setting, may be used only under 

limited circumstances, when a qualified 

professional determines that the needs of the child 

cannot currently be met in a family foster home, 

and that a residential treatment program offers the 

appropriate level of care for the child in the least 

restrictive environment The Family First Prevention 

Services Act (FFPSA), part of the Bipartisan Budget 

Act of 2018, imposed restrictions, implemented in 

October 2019, on the use of title IV–E 

reimbursement for congregate care placements 

experienced by children and older youth. 

185See B.K v. Faust, et al., No.1 cv–15–00185 (D. 

Az. Oct.13, 2020), https://www.childrensrights.org/ 

wp-content/uploads/2020/10/District-of-ArizonaCourt-Order-101320.pdf and Tinsley v. Faust, No.1 

cv–15–00185 Final Approval Order, (D. Az. Feb. 12, 

2021). 

186U.S. Dep’t of Justice, Justice Department Finds 

Maine in Violation of ADA For OverInstitutionalization of Children with Disabilities 

(June 22, 2022), https://www.justice.gov/opa/pr/ 

justice-department-finds-maine-violation-ada-overinstitutionalization-children-disabilities. 

187U.S. Dep’t of Justice, Letter of Findings re: 

United States’ Investigation of the West Virginia 

Children’s Mental Health System Pursuant to the 

Americans with Disabilities Act (June 1, 2015) 

https://www.justice.gov/sites/default/files/crt/ 

legacy/2015/06/01/wv-ada_findings_6-1-15.pdf. 

188U.S. Dep’t of Justice, Department of Justice 

Reaches Agreement to Resolve Americans With 

Disabilities Act Investigation of West Virginia’s 

Children’s Mental Health System (May 14, 2019), 

https://www.justice.gov/opa/pr/department-justicereaches-agreement-resolve-americans-disabilitiesact-investigation-west. 

189 Golbert v. Walker, No. 18 C 8176 (N.D. Ill. Dec. 

13, 2018). 

190 Golbert v. Walker, No. 18 C 8176, 24, Order 

Denying Motion to Dismiss (N.D. Ill. Mar. 18, 2021). 

191A.R. v. State of Or., No. 3:16–cv–01895, 

Amended Complaint (D. Or. Sept. 30, 2016). 

to facilitate family foster home 

placements consistent with this 

requirement. 

Title IV–E agencies accept billions of 

dollars from HHS to provide safe foster 

care placements for children and youth 

who cannot remain in their homes. As 

a condition of receiving these funds, 

child welfare entities must comply with 

Federal child welfare law and disability 

rights laws that require agencies to place 

foster children and youth in the least 

restrictive and most family-like setting 

appropriate to their needs. Congregate 

care should never be considered the 

most appropriate long-term placement 

for children, regardless of their level of 

disability. This stance is reflected in the 

Federal enforcement of the integration 

mandate. After investigating one 

children’s mental health system, DOJ 

found that ‘‘[w]ith 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.’’ 182 This DOJ finding cited, 

and is consistent with, research in the 

field.183 Yet, despite the recognition that 

congregate care should not be a default 

placement for children,184 many 

children and older foster care youth 

continue to face potentially 

discriminatory barriers to placements in 

family-like foster home settings that can 

meet their needs. For example, class 

action lawsuits have been filed in 

several jurisdictions challenging the 

practice of denying foster children, 

including those with disabilities, 

placement in the most integrated setting 

appropriate to children’s needs and of 

placing them in inappropriate settings 

such as hotels and refurbished juvenile 

detention centers. In these cases, other 

State entities, such as Medicaid agencies 

and other human service or health 

agencies, may also provide support 

services to ensure children can be 

adequately supported in a family foster 

care home. To meet the integration 

mandate for foster children’s services, 

State agencies must often coordinate 

different supports and services to 

support community placements. 

In 2015, a class action was brought on 

behalf of children under the care and 

custody of the Arizona Department of 

Child Safety that alleged the State 

agency failed, in part, to ensure that 

foster children with disabilities receive 

behavioral health services and 

placements in family-like foster homes. 

The February 2021 Settlement 

Agreement requires that the State 

agency make considerable 

improvements in providing behavioral 

health and other necessary services to 

children in foster care.185

In a recent case in Maine, DOJ found 

that the State of Maine violated the title 

II integration mandate by unnecessarily 

segregating children with mental health 

and developmental disabilities in 

psychiatric hospitals, residential 

treatment facilities, and a State-operated 

juvenile detention facility.186 The State 

failed to provide services in communitybased settings appropriate to children’s 

needs, in part due to lengthy service 

waitlists, provider shortages, and underresourced crisis centers. DOJ also issued 

a Letter of Findings to West Virginia in 

2015, notifying the state that it violated 

the integration mandate by segregating 

children with mental health conditions 

in residential treatment facilities.187 A 

settlement agreement was reached in 

2019 to expand and improve in-home 

and community-based mental health 

services throughout the state to better 

meet children’s needs.188

In other lawsuits, plaintiffs’ claims 

have not yet been fully adjudicated. 

However, the allegations supporting the 

claims suggest that there may be a need 

for regulation in this area. For example, 

there have been other lawsuits relating 

to the treatment of children with 

disabilities under State care. In Illinois, 

the Cook County Public Guardian was 

sued on behalf of children with 

disabilities under the care and custody 

of the Illinois Department of Children 

and Family Services.189 The lawsuit 

alleges that, between 2015 and 2017, 

more than 800 foster children with 

disabilities were unnecessarily held in 

psychiatric hospitals. According to the 

lawsuit, eighty percent of the more than 

800 children were held for ten days or 

more beyond the time they should have 

been discharged. More than 40% were 

confined for a month or longer; 15% 

had to wait two months or longer. The 

lawsuit further alleges that the Illinois 

child welfare agency is aware of the 

problems yet has failed to ensure that 

these children are discharged to familylike foster homes or other communitybased therapeutic settings. In March 

2021, the court ruled that the plaintiffs 

had pled actionable discrimination 

under section 504 and the ADA.190

In Oregon, two separate class actions 

were filed on behalf of children with 

disabilities under the care and custody 

of Oregon Department of Human 

Services. The first lawsuit alleged the 

State agency systematically placed 

foster children with mental health 

disabilities in hotel rooms or offices and 

denied children with disabilities family 

foster homes and other communitybased therapeutic placements. The 

lawsuit also alleged the children are 

disproportionately denied, by reason of 

their disability, the opportunity to 

benefit from a State program to provide 

safe, nurturing homes for children and 

from the mental health services offered 

by the child welfare agency.191 A 

second lawsuit was filed in 2019 

alleging children in Oregon’s foster care 

system, including a sub-class of 

children who have emotional, 

intellectual, psychological, and physical 


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192Wyatt B. v. Brown, 6:19–cv–00556, Complaint 

(D. Or. Apr. 16, 2019). 

193Wyatt B. v. Brown, 6:19–cv–00556 (D. Or. 

Sept. 27, 2021) (denying in part Defendants’ motion 

to dismiss). 

194 D.S. v. Wash. Dep’t of Children, Youth & 

Families, No. 2:21–cv–00113 (W.D. Wash. Apr. 12, 

2021); AA v. Buckner, No. 2:21CV367 (M.D. Ala 

Oct. 29, 2021). 

195Timothy B. v. N.C. Dep’t of Health and Human 

Srvs., Complaint, No. 1:22–cv1046 (M.D. N.C. Dec. 

6, 2022). 

disabilities, were denied appropriate 

family home and therapeutic 

placements.192 Children with 

disabilities represent 50% of children 

currently in Oregon’s foster care system. 

The lawsuit alleges Oregon sends foster 

children to out-of-state congregate care 

and other restrictive institutions 

including repurposed juvenile detention 

facilities, instead of placing them in 

family foster homes and therapeutic 

community-based settings within the 

State. The suit further alleges that foster 

children with disabilities are also 

denied community-based placements 

and services to ensure access to the least 

restrictive settings. Similar to the first 

lawsuit, this class action alleges 

children are placed in homeless shelters 

and minimally refurbished juvenile 

delinquent institutions, and it alleges 

children are held in hospitals beyond 

the time when hospitalization is 

medically necessary. In September 

2021, the district court ruled the 

plaintiffs’ allegations sufficient to state 

a claim for disability discrimination 

under the integration mandate.193

In 2021, lawsuits were filed by 

advocates on behalf of foster children 

and youth with disabilities in the 

custody of the Washington State 

Department of Children, Youth and 

Families (DCYF) and the Alabama 

Department of Human Resources. The 

Washington complaint alleges that the 

State agency denies foster children with 

behavioral and developmental 

disabilities appropriate services, 

supports, and stable placements in 

family-like settings. The action further 

alleges that foster children with 

disabilities experience multiple, shortterm emergency placements in motels, 

one-night stay foster care homes, and 

DCYF offices. It also alleges that some 

foster children are segregated with other 

youth with behavioral and 

developmental disabilities in congregate 

care settings or are sent to out-of-state 

institutions away from their families 

and communities.194

The Alabama lawsuit alleges that the 

State child welfare agency discriminates 

against youth with mental impairments 

by unnecessarily segregating them in 

restrictive, institutional psychiatric 

facilities. The complaint alleges that a 

foster youth with a ‘‘mental 

impairment’’ was held unnecessarily in 

a psychiatric residential treatment 

facility because the State agency failed 

to locate a community-based placement 

with appropriate supports and services. 

Though the State child welfare agency 

determined the foster youth was eligible 

for community-based placement, 

according to the complaint, she 

remained in a restricted and segregated 

placement for more than a year due to 

the agency’s failure to develop an 

adequate system of community support 

and recruit and train foster families. The 

complaint asserts that children placed 

in institutional settings are less likely to 

achieve permanency, experience poor 

child welfare outcomes, and are more 

likely to age out of foster care without 

appropriate community-based care to 

facilitate a successful transition to 

adulthood. 

In 2022, a class action complaint was 

filed by advocates on behalf of foster 

children with disabilities in the custody 

of the North Carolina Department of 

Health and Human Services (DHHS). 

The complaint alleges DHHS 

unnecessarily segregates foster children 

with disabilities from their home 

communities and routinely isolates 

them in restrictive, and often clinically 

inappropriate, institutional settings, 

such as psychiatric residential treatment 

facilities (PRTF).195 The complaint 

further alleges that the children of color 

disproportionately bear the burden of 

unnecessary and segregated 

confinement in PRTFs. According to the 

complaint, some of the named plaintiffs 

receive heavy cocktails of mind-altering 

psychotropic medications, are subject to 

physical restraints, and have suffered 

bullying by PRTF staff. 

• Child Welfare Question 1: The 

Department seeks comment on 

additional examples of the application 

of the most integrated setting 

requirement to child welfare programs 

and welcomes comments on any 

additional points for consideration 

regarding integration of children with 

disabilities in child welfare contexts. 

Discrimination Prohibited in Child 

Welfare Services 

Proposed § 84.60(a) states that no 

qualified individual with a disability 

may be excluded from participation in, 

be denied the benefits of, or otherwise 

be subjected to discrimination under 

any child welfare program or activity. 

This section is consistent with the 

general nondiscrimination provisions 

contained at § 84.68(a), as well as the 

general nondiscrimination provisions 

applicable to health, welfare, and social 

services programs at § 84.52(a), and 

applies them directly to child welfare 

entities who are recipients of Federal 

funding. This proposed provision does 

not enlarge the existing protections of 

section 504, but the foregoing 

discussion, as well as OCR’s own 

outreach initiatives to child welfare 

advocates and recipients, strongly 

indicate that child welfare entities who 

are recipients of Federal funding are not 

all aware of their responsibilities under 

the statute. This section is meant to 

ensure that individuals with disabilities 

served by child welfare programs are 

afforded full and equal opportunities to 

access and benefit from child welfare 

programs and activities as required by 

section 504. 

Proposed § 84.60(a)(2)(i) states that 

discrimination includes decisions based 

on speculation, stereotypes, or 

generalizations about a parent, 

caregiver, foster parent, or prospective 

parent. Section 84.60(a)(2)(ii) prohibits 

such discriminatory decisions about a 

child with a disability. 

The term ‘‘parents’’ is defined in 

proposed § 84.10 as biological or 

adoptive parents or legal guardians, as 

determined by applicable State law. The 

definition is consistent with 42 U.S.C. 

675(2) in title IV–E of the Social 

Security Act, the statute governing 

Federal payments for foster care, 

adoption assistance, and prevention 

services. The term ‘‘caregivers’’ as used 

in this section includes relatives and 

other kinship caregivers who provide 

for the physical, emotional, and social 

needs of the child. The term ‘‘foster 

parents’’ means individuals who 

provide a temporary home and support 

for children in foster care as defined in 

45 CFR 1355.20. This category may 

include relatives or nonrelatives that are 

licensed or approved to provide care for 

foster children. The term ‘‘companion’’ 

as defined in § 84.10 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. The term ‘‘prospective 

parents’’ as defined in § 84.10 means 

individuals who are seeking to become 

foster or adoptive parents. 

The term ‘‘qualified person with a 

disability’’ or ‘‘qualified individual with 

a disability’’ means a person with a 

disability who meets the essential 

eligibility requirements of the child 

welfare program or activity, with or 

without the provision of reasonable 

modifications, the provision of 

appropriate auxiliary aids and services, 

or the removal of architectural, 


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196See U.S. Dep’t of Health & Hum. 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 (Aug. 2015). https://

www.ada.gov/doj_hhs_ta/child_welfare_tahttps://

www.hhs.gov/sites/default/files/disability.pdf. 

communication, or transportation 

barriers. ‘‘Program or activity,’’ as 

defined in § 84.10, means all of the 

operations of any entity, any part of 

which is extended Federal financial 

assistance. In the context of child 

welfare, ‘‘all operations’’ includes but is 

not limited to, child protective services 

investigations and child removals; 

safety and risk assessments; in-home 

skill-based services; case planning and 

service planning; community-based 

services including mental health and 

substance use disorder programs; 

visitation; reunification; out of home 

placements and agency placement 

decisions (e.g., foster care, kinship care, 

and adoption); services to help current 

and former foster care youths transition 

into adulthood and achieve selfsufficiency; and guardianship. A child 

welfare entity’s participation in 

dependency hearings, child placements, 

and agency placement decisions and 

proceedings to terminate parental rights 

are also ‘‘operations’’ within the 

definition of program or activity in 

§ 84.10. 

Proposed paragraph (b) of § 84.60 

articulates prohibitions included under 

paragraph (a) and outlines the types of 

child welfare actions that are prohibited 

when they occur based on the fact that 

a qualified individual who is a parent, 

caregiver, foster parent, or prospective 

parent has a disability, including the 

denial of custody, control, or visitation 

related to a child; termination of 

parental rights; and the denial of access 

to adoption or foster care services;. This 

list is not exhaustive, but rather, 

illustrative. 

• Child Welfare Question 2: The 

Department invites comment on this list 

of prohibited activities in the child 

welfare context, especially on whether 

commenters believe it is complete. 

Proposed paragraph (b)(1) of § 84.60 

addresses the denial of custody or 

control of children from qualified 

parents with disabilities. This paragraph 

prohibits child welfare programs from 

petitioning for the removal of a child 

from a parent because of speculation, 

stereotypes, or generalizations about a 

parent’s disability. 

Proposed paragraph (b)(2) of § 84.60 

requires that recipients ensure that 

qualified parents with disabilities are 

not denied the opportunity to preserve 

their families that is equal to the 

opportunity that recipients offer to 

parents without disabilities. Child 

welfare programs or activities may not 

limit access to reunification services for 

parents with disabilities or provide 

reunification services to parents with 

disabilities that are inaccessible. 

Proposed paragraph (b)(3) of § 84.60 

addresses the termination of parental 

rights or legal guardianship of a 

qualified parent or legal guardian with 

a disability. Much like paragraph (b)(1), 

it means that a child welfare entity may 

not file a petition to terminate a parent’s 

legal rights over a child because of 

speculation, stereotypes, or 

generalizations surrounding the parent’s 

disability. 

Proposed paragraph (b)(4) of § 84.60 

affirms the right of a qualified caregiver, 

foster parent, companion, or prospective 

parent with a disability to be given an 

opportunity to participate in or benefit 

from child welfare programs and 

activities. Child welfare programs must 

ensure that they provide equal 

opportunities for caregivers, foster 

parents, companions, or prospective 

parents with disabilities to benefit from 

those programs, including by providing 

auxiliary aids and services and 

reasonable modifications. 

Pressuring a qualified individual with 

a disability not to seek, apply, or 

participate in Federally funded child 

welfare aids, benefits, or services may 

also result in a denial of the opportunity 

to participate in or benefit from child 

welfare programs and activities under 

proposed paragraph (b)(4) of § 84.60. For 

example, child welfare entities may not 

inappropriately pressure parents with 

disabilities towards voluntary 

relinquishment of parental rights or 

improperly influence a parent’s decision 

to participate in visitation and 

reunification activities on the basis of 

the parent’s disability. Another example 

of prohibited conduct under paragraph 

(b)(4) is using criteria that discriminate 

on the basis of disability. This includes 

the use of discriminatory screening 

processes or requirements for service. 

Proposed paragraph (c) of § 84.60 

requires recipients to establish 

procedures for referring qualified 

parents who, because of disability, need 

or are believed to need modified or 

adaptive services (e.g., individualized 

parenting training) or reasonable 

modifications and to ensure that tests, 

assessments, and other evaluation 

materials are tailored to assess specific 

areas of disability-related needs. For 

purposes of this paragraph, the term 

‘‘service provider’’ refers to individual 

providers or agencies who evaluate 

families to determine their need for 

behavioral health, parenting skills, and 

other services to address safety concerns 

and strengthen a parent’s protective 

capacity. This paragraph requires that 

when referring a parent with an actual 

or suspected disability for parent 

evaluations, recipients ensure that 

service providers use tests and 

assessment materials that are tailored 

and adapted to assess parenting 

capability and functioning. For 

example, service providers may assess a 

parent, caregiver, foster parent, or 

prospective parent’s capabilities, 

functioning, and ability to care for a 

child by potentially drawing from a 

wealth of sources. When assessing 

parenting capabilities, the service 

provider should use methods that are 

adapted where necessary to address the 

parent’s disability and that broadly 

evaluate an individual’s strengths, 

needs, and abilities based on objective 

evidence, including direct observation, 

interviews, and medical and social 

history. For example, this requirement 

would prevent the use of a single 

general IQ score to evaluate the 

parenting capabilities of an individual 

with an intellectual disability. 

• Child Welfare Question 3: The 

Department seeks 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 assessment. 

Section 504 requires that these 

assessments consider the strengths and 

needs of a parent, caregiver, foster 

parent, or prospective parent with a 

disability and not base decisions on 

preconceived notions resulting from 

generalizations and stereotypes about 

individuals with disabilities. It prohibits 

child welfare agencies from making 

decisions about foster parents and 

prospective foster parents that are based 

on assumptions or generalizations about 

people with disabilities. Disabilities 

rarely manifest in the exact same way 

from person to person, and decisions 

about a parent, caregiver, foster parent, 

or prospective parent’s ability to care for 

a child, must be based on facts regarding 

each individual.196

In some circumstances, the risk of 

harm to a child may warrant removal, 

denial of reunification, denial of 

visitation, or termination of parental 

rights. Risk of harm to a child may be 

analyzed through section 504’s 

provision addressing ‘‘direct threat.’’ 

Proposed § 84.75 states that recipients 

are not required to provide benefits or 

services to individuals with disabilities 

if those individuals pose a direct threat 

to others. In determining whether an 


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197See, e.g., 45 CFR 92.104; 45 CFR 84.4, 

redesignated as 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. 198 29 U.S.C. 794. 

199U.S. Dep’t of Health & Hum. Servs., Off. for 

Civil Rts., Guidance and Resources for Electronic 

Information Technology: Ensuring Equal Access to 

All Health Services and Benefits Provided through 

Electronic Means (Dec. 21, 2016), https://

www.hhs.gov/sites/default/files/ocr-guidanceelectronic-information-technology.pdf. 200The guidance document used the term 

‘‘electronic and information technology (EIT),’’ 

which has since been effectively replaced with the 

term ‘‘information and communication technology 

(ICT).’’ 201U.S. Dep’t of Health & Hum. Servs., Off. for 

Civil Rts., Guidance and Resources for Electronic 

Information Technology: Ensuring Equal Access to 

All Health Services and Benefits Provided through 

Electronic Means (Dec. 21, 2016), https://

www.hhs.gov/sites/default/files/ocr-guidanceelectronic-information-technology.pdf. 

202 81 FR 31376 (May 18, 2016). 

203Web Content Accessibility Guidelines (WCAG) 

are developed by the World Wide Web Consortium 

process in cooperation with individuals and 

organizations around the world, with a goal of 

providing a single shared standard for web content 

accessibility that meets the needs of individuals, 

organizations, and governments internationally. See 

Web Content Accessibility Guidelines (WCAG) 

Overview, W3C: Web Accessibility Initiative Mar. 

18, 2022), https://www.w3.org/WAI/standardsguidelines/wcag/ 

204 81 FR 31376, 31426 (May 18, 2016). 

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 

actually 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. 

The Department believes that the 

proposed regulation furthers the best 

interests of the children involved in 

child-welfare matters governed by this 

section. Basing decisions to remove 

children from their parents or 

caretakers, to terminate their parents’ 

rights, or to limit visitation on 

stereotypes, assumptions, and 

unsubstantiated beliefs is not in 

children’s best interests. We therefore 

believe that the proposed rule both 

implements the plain requirements of 

section 504 and advances the best 

interests of children and their 

caretakers. 

Subpart I—Web, Mobile, and Kiosk 

Accessibility 

Introduction 

Web content and mobile applications 

provide increasingly crucial gateways to 

health and human service programs and 

activities. Inaccessible technology can 

cause severe harm, from denials of 

cancer screenings to limitations in 

reunification services for parents and 

children. Current Federal laws and 

regulations require the accessibility of 

all programs and activities of recipients 

of Federal financial assistance, 

including those provided through web 

content, mobile applications, and 

kiosks.197 Despite these requirements, 

the Department has received numerous 

complaints alleging that people with 

disabilities continue to face barriers to 

access, including inaccessible recipient 

websites and mobile applications, in 

addition to kiosks. To help ensure 

access for individuals with disabilities 

and provide additional clarity to 

recipients, the Department proposes to 

require specific standards for accessible 

recipient web content and mobile 

applications, as well as general 

accessibility for kiosks used in 

recipients’ programs and activities, in 

this subpart. 

History of Web Interpretation Under 

Section 504 

Section 504 provides that individuals 

with disabilities shall not, solely by 

reason of such disability, be excluded 

from participation in or be denied the 

benefits of programs or activities of a 

recipient, or be subjected to 

discrimination by any such entity.198

Many recipients now regularly offer 

many of their programs and activities 

through web content and mobile apps, 

and the Department describes in detail 

some of the ways in which recipients 

have done so later in this section. To 

ensure equal access to such programs 

and activities, the Department is 

undertaking this rulemaking to provide 

recipients with more specific 

information about how to meet their 

nondiscrimination obligations. 

As with many other civil rights 

statutes, section 504’s requirements are 

broad and its implementing regulations 

do not include specific standards for 

every obligation under the statute. This 

has been the case in the context of web 

and mobile app content accessibility 

under section 504. Because the 

Department has not adopted specific 

technical requirements for web content 

through rulemaking, recipients have not 

had specific direction on how to comply 

with section 504’s general requirements 

of nondiscrimination and effective 

communication. However, recipients 

must still comply with these section 504 

obligations with respect to their 

websites and mobile apps, including 

before this rule’s effective date. 

As the use of technology has become 

more prevalent in health programs and 

activities, the Department has 

articulated its position about the ways 

that Federal civil rights laws that 

prohibit discrimination on the basis of 

disability require accessibility for 

individuals with disabilities. In 

December of 2016, the Department 

issued a guidance document titled 

‘‘Guidance and Resources for Electronic 

Information Technology: Ensuring Equal 

Access to All Health Services and 

Benefits Provided through Electronic 

Means.’’ 199 This guidance document 

recognized that health care providers 

increasingly rely on information and 

communication technology (ICT),200

including kiosks and websites, to 

provide health programs and activities, 

and that a failure to ensure that the 

services covered health care entities 

provide through ICT are accessible to 

people with disabilities may constitute 

discrimination under Federal civil 

rights laws.201

Section 1557 of the Affordable Care Act 

In 2016, when the Department first 

issued its implementing regulation for 

section 1557 of the ACA, it required 

covered entities to ensure that their 

health programs or activities provided 

through electronic and information 

technology, including web content, 

mobile applications, and kiosks, were 

accessible to individuals with 

disabilities, unless doing so would 

result in a fundamental alteration in the 

nature of the health programs or 

activities or undue financial and 

administrative burdens.202 The 

Department also noted that while it 

would not adopt specific accessibility 

standards for electronic and information 

technology at the time, it would be 

‘‘difficult to ensure compliance with 

accessibility requirements without 

adherence to standards such as the Web 

Content Accessibility Guidelines 

(WCAG) 203 2.0 AA standards or the 

Section 508 standards,’’ and strongly 

encouraged recipients to use such 

standards.204 While the Department 

released an updated implementing 

regulation for section 1557 in 2020, the 


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205 45 CFR 92.104. 

206 42 U.S.C. 12132. 

207See e.g., H. Rep. 101–485 (II) at 84 (May 15, 

1990). 

208See, e.g., 42 U.S.C. 12201(a). 

209See H. Rep. 101–485 (II) at 84 (May 15, 1990). 

210See Letter from Tom Harkin, U.S. Senator, to 

Deval L. Patrick, Assistant Attorney General, Civil 

Rights Division, Department of Justice, to Tom 

Harkin, U.S. Senator (Sept. 9, 1996). 

211See 42 U.S.C. 12132. 

212See U.S. Dep’t of Just., Guidance on Web 

Accessibility and the ADA, ADA.gov (March 18, 

2022), https://www.ada.gov/resources/webguidance/ [https://perma.cc/WH9E-VTCY]; 

Settlement Agreement Between the United States of 

America and the Champaign-Urbana Mass Transit 

District Under the Americans with Disabilities Act 

(Dec. 14, 2021), https://www.ada.gov/champaignurbana_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. 17, 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/louisianatech.htm [https://perma.cc/78ES-4FQR]. 

213U.S. Dep’t of Just., Accessibility of State and 

Local Government websites to People with 

Disabilities, ADA.gov (June 2003), https://

www.ada.gov/websites2.htm [https://perma.cc/ 

Z3X5-NJ64]. 

214 Id. 

215 75 FR 43460 (July 26, 2010). 

216See Department of Justice—Fall 2015 

Statement of Regulatory Priorities, http://

www.reginfo.gov/public/jsp/eAgenda/ 

StaticContent/201510/Statement_1100.html 

[https://perma.cc/YF2L-FTSK]. 

217Nondiscrimination on the Basis of Disability; 

Accessibility of Web Information and Services of 

State and Local Government Entities, 81 FR 28658 

(May 9, 2016). 

218Nondiscrimination on the Basis of Disability; 

Notice of Withdrawal of Four Previously 

Announced Rulemaking Actions, 82 FR 60932 (Dec. 

26, 2017). 

219See Letter for Charles E. Grassley, U.S. 

Senator, from Stephen E. Boyd, Assistant Attorney 

General, Civil Rights Division, Department of 

Justice (Oct. 11, 2018), https://

www.grassley.senate.gov/imo/media/doc/2018-10- 

11%20DOJ%20to%20Grassley%20- 

Continued 

existing regulation still requires that 

covered entities, many of whom are 

recipients and subject to the 

requirements of section 504, ensure that 

their health programs or activities 

provided through ICT are accessible to 

individuals with disabilities, unless 

doing so would result in a fundamental 

alteration in the nature of the programs 

or activities or undue financial and 

administrative burdens.205

DOJ’s Previous Web AccessibilityRelated Rulemaking Efforts Under the 

ADA 

Title II of the ADA provides that 

individuals with disabilities shall not, 

by reason of such disability, be 

excluded from participation in or be 

denied the benefits of the services, 

programs or activities of a State or local 

government entity, or be subjected to 

discrimination by any such entity.206

Title II is modeled on section 504 of the 

Rehabilitation Act.207

Title II of the ADA and section 504 

are generally understood to impose 

similar requirements, given the similar 

language employed in the ADA and the 

Rehabilitation Act.208 The legislative 

history of the ADA makes clear that title 

II of the ADA was intended to extend 

the requirements of section 504 to apply 

to all state and local governments, 

regardless of whether they receive 

Federal funding, demonstrating 

Congress’s intent that title II and section 

504 be interpreted consistently.209

DOJ first articulated its interpretation 

that the ADA applies to websites of 

covered entities in 1996.210 Under title 

II, this includes ensuring that 

individuals with disabilities are not, by 

reason of such disability, excluded from 

participation in or denied the benefits of 

the services, programs and activities 

offered by state and local government 

entities, including those offered via the 

web, such as education services, voting, 

town meetings, vaccine registration, tax 

filing systems, and applications for 

benefits.211 DOJ has since reiterated this 

interpretation in a variety of online 

contexts.212 Title II of the ADA also 

applies when public entities use mobile 

apps to offer their services, programs, 

and activities. 

In June 2003, DOJ published a 

document titled ‘‘Accessibility of State 

and Local Government websites to 

People with Disabilities,’’ 213 which 

provides tips for State and local 

government entities on ways they can 

make their websites accessible so that 

they can better ensure that people with 

disabilities have equal access to the 

services, programs, and activities that 

are provided through those websites. 

Similar to the Department’s 2016 

Guidance, the DOJ guidance noted that 

‘‘an agency with an inaccessible website 

may also meet its legal obligations by 

providing an alternative accessible way 

for citizens to use the programs or 

services, such as a staffed telephone 

information line,’’ while also 

acknowledging that this is unlikely to 

provide an equal degree of access.214

DOJ previously pursued rulemaking 

efforts regarding website accessibility 

under title II. On July 26, 2010, DOJ’s 

advance notice of proposed rulemaking 

(ANPRM) titled ‘‘Accessibility of Web 

Information and Services of State and 

Local Government Entities and Public 

Accommodations’’ was published in the 

Federal Register.215 The ANPRM 

announced that DOJ was considering 

revising the regulations implementing 

titles II and III of the ADA to establish 

specific requirements for state and local 

government entities and public 

accommodations to make their websites 

accessible to individuals with 

disabilities. In the ANPRM, DOJ sought 

information regarding what standards, if 

any, it should adopt for web 

accessibility; whether DOJ should adopt 

coverage limitations for certain entities, 

like small businesses; and what 

resources and services are available to 

make existing websites accessible to 

individuals with disabilities. DOJ also 

requested comments on the costs of 

making websites accessible; whether 

there were effective and reasonable 

alternatives to make websites accessible 

that DOJ should consider permitting; 

and when any web accessibility 

requirements adopted by DOJ should 

become effective. DOJ received 

approximately 400 public comments 

addressing issues germane to both titles 

II and III in response to that ANPRM. 

DOJ later announced that it decided to 

pursue separate rulemakings addressing 

website accessibility under titles II and 

III.216

On May 9, 2016, DOJ followed up on 

its 2010 ANPRM with a detailed 

Supplemental ANPRM that was 

published in the Federal Register. The 

Supplemental ANPRM solicited public 

comment about a variety of issues 

regarding establishing technical 

standards for web access under title 

II.217 DOJ received more than 200 public 

comments in response to the title II 

Supplemental ANPRM. 

On December 26, 2017, DOJ published 

a Notice in the Federal Register 

withdrawing four rulemaking actions, 

including the titles II and III web 

rulemakings, stating that it was 

evaluating whether promulgating 

specific web accessibility standards 

through regulations was necessary and 

appropriate to ensure compliance with 

the ADA.218 DOJ has also previously 

stated that it would continue to review 

its entire regulatory landscape and 

associated agenda, pursuant to the 

regulatory reform provisions of 

Executive Order 13771 and Executive 

Order 13777.219 Those Executive Orders 


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%20ADA%20website%20Accessibility.pdf [https://

perma.cc/8JHS-FK2Q]. 

220U.S. Dep’t of Just., Guidance on Web 

Accessibility and the ADA, ADA.gov (March 18, 

2022), https://www.ada.gov/resources/webguidance/ [https://perma.cc/874V-JK5Z] (last 

visited Aug. 8, 2022). 

221 88 FR 51948 (Aug. 4, 2023), to be codified at 

28 CFR part 35. 

222The HHS Office for Civil Rights released 

guidance on April 13, 2021, reminding recipients 

that vaccine scheduling and registration provided 

online must be accessible to individuals with 

disabilities. This was based in part on complaints 

OCR received alleging that recipients were 

requiring individuals to register for vaccine 

appointments using inaccessible websites. See U.S. 

Dep’t of Health & Hum. Servs., Off. for Civil Rts., 

Guidance on Federal Legal Standards Prohibiting 

Disability Discrimination in COVID–19 Vaccination 

Programs (Apr. 13, 2021), https://www.hhs.gov/ 

sites/default/files/federal-legal-standardsprohibiting-disability-discrimination-covid-19- 

vaccination.pdf. 

223See also John Hopkins Univ. Disability Health 

Res. Ctr., Vaccine website Accessibility Tables (May 

19, 2021), https://disabilityhealth.jhu.edu/

vaccinedashboard/webaccess/ (Dashboard that 

tracked accessibility of state websites with vaccine 

information). 

224According to CDC Health Center Program 

Data, approximately 43% of providers were capable 

of providing telehealth in 2019 while 

approximately 95% of providers reported using 

telehealth during the COVID–19 pandemic. U.S. 

Dep’t of Health & Hum. Servs., Ctrs. for Disease 

Control, Trends in Use of Telehealth Among Health 

Centers During the COVID–19 Pandemic—United 

States, June 26-November 26, 2020 (Feb. 19, 2021), 

https://www.cdc.gov/mmwr/volumes/70/wr/ 

mm7007a3.htm. 

225See, e.g., Letter from Am. Ass’n of People with 

Disabilities et al., to the Department (Feb. 24, 2022), 

https://autisticadvocacy.org/wp-content/uploads/ 

2022/02/HHS_Disability-Advocates-Memo02.24.22.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); Kathleen Bogart et al., 

Healthcare Access, Satisfaction, and Health-related 

Quality of Life Among Children and Adults with 

Rare Diseases, 17 Orphanet J. of Rare Diseases 196 

(May 12, 2022); JF Scherr et al., Utilizing Telehealth 

to Create a Clinical Model of Care for Patients with 

Batten Disease and other Rare Diseases, 

Therapeutic Advances in Rare Disease (Aug. 18, 

2021). 

were revoked by Executive Order 13992 

in early 2021. In March 2022, DOJ 

released guidance addressing web 

accessibility for people with 

disabilities.220 This technical assistance 

expanded on DOJ’s previous ADA 

guidance by providing practical tips and 

resources for making websites accessible 

for both title II and title III entities. It 

also reiterated DOJ’s longstanding 

interpretation that the ADA applies to 

all services, programs, and activities of 

covered entities, including when they 

are offered via the web. 

The guidance did not include 24/7 

staffed telephone lines as an alternative 

to accessible websites as was included 

in both the Department’s 2016 Guidance 

on Electronic and Information 

Technology and in DOJ’s 2003 guidance. 

Given the way the modern web has 

developed, the Department no longer 

believes that 24/7 staffed telephone 

lines can realistically provide equal 

access to people with disabilities. 

Websites—and often mobile apps— 

allow the public to get information or 

request a service within just a few 

minutes. Getting the same information 

or requesting the same service using a 

staffed telephone line takes more steps 

and may result in wait times or 

difficulty getting the information. 

For example, a health care provider’s 

website may allow members of the 

public to quickly review large quantities 

of information, like information about 

how to schedule an appointment, a 

certain specialty service, or health tips 

during a public health emergency. 

Members of the public can then use 

recipient websites to promptly act on 

that information by, for example, 

scheduling an appointment, attending a 

virtual telehealth appointment, or 

requesting a prescription refill through 

a virtual portal. A member of the public 

could not realistically accomplish these 

tasks efficiently over the phone. 

Additionally, a person with a disability 

who cannot use an inaccessible online 

new patient form might have to call to 

request assistance with filling out either 

online or mailed forms, which could 

involve significant delay and may 

require providing private information 

such as banking details or Social 

Security numbers over the phone 

without the benefit of certain security 

features available for online 

transactions. Finally, calling a staffed 

telephone line lacks the privacy of 

looking up information on a website. A 

caller needing public safety resources, 

for example, might be unable to access 

a private location to ask for help on the 

phone, whereas an accessible website 

would allow users to privately locate 

resources. For these reasons, the 

Department does not believe that a 

staffed telephone line—even if it is 

offered 24/7—provides equal access in 

the way that an accessible website can. 

DOJ is now reengaging in efforts to 

promulgate regulations establishing 

technical standards for web accessibility 

for public entities and has begun 

distinct rulemaking to address web 

access under title II of the ADA.221

Need for Department Action 

Use of Web Content by Recipients 

Recipients regularly use the web to 

disseminate information and offer 

programs and activities to the public. 

Health care providers frequently 

advertise their services, post health 

related information, and offer methods 

to schedule appointments through 

websites. Additionally, applications for 

many benefits are available through 

social service websites. 

People also rely on recipients’ 

websites to engage in health and human 

service programs and activities, 

particularly when more individuals 

prefer or need to stay at home following 

the COVID–19 pandemic. The 

Department believes that although many 

public health measures addressing the 

COVID–19 pandemic are no longer in 

place, there have been durable changes 

to recipient operations and public 

preferences that necessitate greater 

access to online programs and activities. 

Health care provider websites and 

applications are important platforms for 

centralizing relevant health information 

for patients, scheduling appointments 

and procedures, accessing patient 

information, and providing contact 

information. During the COVID–19 

Public Health Emergency, websites and 

applications were often used as the only 

means to schedule COVID testing and 

vaccination appointments, making it 

crucial for those appointment web pages 

and their navigation paths to be 

accessible to individuals with 

disabilities.222 The Department received 

numerous complaints alleging that 

vaccination websites were not 

compatible with screen-reader software, 

did not allow individuals unable to use 

a computer mouse to select necessary 

boxes, and generally did not allow for 

individuals with disabilities to schedule 

vaccine appointments despite being 

eligible for vaccines.223 Additionally, 

the Department is aware of allegations 

that electronic health records, including 

those available through patient portals 

on provider websites and applications, 

such as text-based reports describing xrays and MRI results, are not readable 

with a screen reader, making them 

inaccessible to some individuals with 

vision disabilities. 

Telehealth has been increasing in 

popularity, availability, and reliability 

among providers and patients, with the 

COVID–19 pandemic coinciding with a 

marked increase in telehealth capacity 

and use.224 The ability to access 

telehealth through a variety of devices, 

including laptops, smart phones, and 

tablets, wherever a high-speed internet 

connection is available, has expanded 

health care opportunities for rural 

communities, individuals at increased 

risk of negative outcomes from 

infectious diseases, individuals without 

reliable forms of transportation, and 

individuals needing to access specialists 

in rare diseases, among others.225


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226See Nat’l Council on Disability, 2021 Progress 

Report: The Impact of COVID–19 on People with 

Disabilities (Oct. 29, 2021), https://ncd.gov/sites/ 

default/files/NCD_COVID-19_Progress_Report_

508.pdf (urging the Department to require that 

telehealth providers ensure their platforms are 

compatible with screen-readers and allow for thirdparty interpreters.). 

227See U.S. Dep’t of Health & Hum. Servs., Off. 

for Civil Rts., U.S. Dep’t of Justice, Civil Rights 

Division, Guidance on Nondiscrimination in 

Telehealth: Federal Protections to Ensure 

Accessibility to People with Disabilities and 

Limited English Proficient Persons (July 29, 2022), 

https://www.hhs.gov/sites/default/files/guidanceon-nondiscrimination-in-telehealth.pdf. 

228See Colleen McClain, Emily A. Vogels, 

Andrew Perrin, Stella Sechopoulos, and Lee Rainie, 

The internet and the Pandemic, Pew Research 

Center (Sep. 1, 2021), https://www.pewresearch.org/ 

internet/2021/09/01/the-internet-and-thepandemic/ [https://perma.cc/4WVA-FQ9P]. 

229See Kerry Dobransky and Eszter Hargittai, 

Piercing the Pandemic Social Bubble: Disability and 

Social Media Use About COVID–19, American 

Behavioral Scientist (Mar. 29, 2021), https://doi.org/ 

10.1177/00027642211003146. 

230See McClain, Vogels, Perrin, Sechopoulos, The 

Internet and the Pandemic, at 3. 

231See Hannah Eichner, The Time is Now to 

Vaccinate High-Risk People with Disabilities, 

National Health Law Program (Mar. 15, 2021), 

https://healthlaw.org/the-time-is-now-to-vaccinatehigh-risk-people-with-disabilities/ [https://

perma.cc/8CM8-9UC4]. 

232See U.S. Dep’t of Health and Hum. Servs., 

Centers for Disease Control and Prevention, 

Underlying Medical Conditions Associated with 

Higher Risk for Severe COVID–19: Information for 

Healthcare Professionals (Feb. 9. 2023), https://

www.cdc.gov/coronavirus/2019-ncov/hcp/clinicalcare/underlyingconditions.html. 

233See People with Disabilities, Centers for 

Disease Control and Prevention, https://

www.cdc.gov/ncbddd/humandevelopment/covid19/people-with-disabilities.html?CDC_AA_

refVal=https%3A%2F%2Fwww.cdc.gov%

2Fcoronavirus%2F2019-ncov%2Fneed-extraprecautions%2Fpeople-with-disabilities.html 

[https://perma.cc/WZ7U-2EQE] (last visited, Aug. 2, 

2022). 

234See 2021 Progress Report: The Impact of 

COVID–19 on People with Disabilities, National 

Council on Disability (Oct. 29, 2021), https://

ncd.gov/progressreport/2021/2021-progress-report 

[https://perma.cc/96L7-XMKZ]. 

235Mona Bushnell, What Is the Difference 

Between an App and a Mobile website?, Business 

News Daily (Nov. 19, 2021), https://

www.businessnewsdaily.com/6783-mobile-websitevs-mobile-app.html [https://perma.cc/9LKC-GUEM] 

https://www.businessnewsdaily.com/6783-mobilewebsite-vs-mobile-app.html (last visited Aug. 8, 

2022). 

236 Id. 

Unfortunately, these increased 

opportunities have also exposed 

accessibility shortcomings in the web 

content and applications used by some 

recipients to provide telehealth. 

Individuals with hearing disabilities 

may require real-time captioning.226

Individuals with vision disabilities may 

require online portals to be accessible 

using assistive technology such as 

screen readers. 

The Department is aware of numerous 

allegations that existing telehealth 

platforms are not accessible to 

individuals with disabilities, resulting 

in ineffective services. Even if the 

United States returns to pre-pandemic 

levels of in-person health care visits, 

telehealth will remain an integral part of 

health care and give a lifeline to 

individuals in rural communities and 

others who cannot access timely inperson health care or choose not to visit 

in person. Recently, the Department 

released joint guidance with DOJ on 

ensuring the accessibility of 

telehealth.227 The guidance document 

lists specific Federal nondiscrimination 

laws that apply to telehealth and 

includes examples of the protections for 

individuals with disabilities. 

Similar to its use in health programs 

and activities, web content has become 

a common method to disseminate 

information on and deliver human 

service programs and activities. If an 

individual with a disability is unable to 

access web content that a recipient uses 

for its programs or activities, they may 

be denied access to critical benefits they 

are entitled to receive. For example, a 

human service program that requires 

applicants to fill out an online 

application for benefits that is 

incompatible with screen readers, voice 

dictation, or hands-free devices will 

likely deny certain individuals with 

disabilities an equal opportunity to 

apply for those benefits. Even situations 

where application forms are also 

available in other formats, such as paper 

copies at a single physical location, may 

still result in unequal access and a delay 

in benefits if online forms are 

inaccessible. 

As noted previously, access to the 

web has become increasingly important 

as a result of the COVID–19 pandemic, 

which shut down workplaces, schools, 

and in-person services, and has forced 

millions of Americans to stay home for 

extended periods.228 In response, the 

American public has turned to the web 

for work, activities, and learning.229 In 

fact, a study conducted in April 2021 

found that 90 percent of adults say the 

web ‘‘has been at least important to 

them personally during the pandemic.’’ 

Fifty-eight percent say it has been 

essential.230

Currently, a large number of 

Americans interact with recipients 

remotely and many recipients provide 

vital information and services for the 

general public online. Access to webbased information and services, while 

important for everyone during the 

pandemic, took on heightened 

importance for people with disabilities, 

many of whom face a greater risk of 

COVID–19 exposure, serious illness, 

and death.231

According to the CDC, some people 

with disabilities ‘‘might be more likely 

to get infected or have severe illness 

because of underlying medical 

conditions, congregate living settings, or 

systemic health and social inequities.232

All people with serious underlying 

chronic medical conditions like chronic 

lung disease, a serious heart condition, 

or a weakened immune system seem to 

be more likely to get severely ill from 

COVID–19.’’ 233 A report by the National 

Council on Disability indicated that 

COVID–19 has a disproportionately 

negative impact on people with 

disabilities’ access to healthcare, 

education, and employment, among 

other areas, making remote access to 

these opportunities via the web even 

more important.234

Individuals with disabilities can often 

be denied equal access to programs and 

activities because many recipients’ web 

content is not fully accessible. Thus, 

there is a digital divide between the 

ability of people with certain types of 

disabilities and people without those 

disabilities to access the programs and 

activities of recipients. 

The Department is also proposing that 

recipients make their mobile apps 

accessible under proposed § 84.84, 

because recipients also use mobile apps 

to offer their programs and activities to 

the public. As discussed in the 

proposed definition, a mobile app is a 

software application that is downloaded 

and designed to run on mobile devices 

such as smartphones and tablets. Mobile 

apps are distinct from a website that can 

be accessed by a mobile device because, 

in part, mobile apps are not directly 

accessible on the web—they are often 

downloaded on a mobile device.235 A 

mobile website, on the other hand, is a 

website that can be accessed by a mobile 

device similarly to how it can be 

accessed on a desktop computer.236

Recipients use mobile apps to provide 

services and reach the public in various 

ways. For example, some recipients use 

mobile apps as a method to access a 

patient portal and engage in a number 

of activities related to that patient, such 

as scheduling appointments, messaging 

physicians, and requesting medical 

records. 

Although many individuals access 

web content, including telehealth 

platforms, on desktop computers and 

laptops, many others rely on mobile 

applications used on mobile devices 

such as smart phones and tablets. As of 

2021, 15% of American adults relied on 

smartphones for internet access, i.e., 

owned a smartphone but did not have 


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237Mobile Fact Sheet, Pew Research Center (Apr. 

7, 2021), https://www.pewresearch.org/internet/ 

fact-sheet/mobile/. 

238See Large-Scale Analysis Finds Many Mobile 

Apps Are Inaccessible, University of Wisconsin 

CREATE, https://create.uw.edu/initiatives/largescale-analysis-finds-many-mobile-apps-areinaccessible/ [https://perma.cc/442K-SBCG] (last 

visited Aug. 8, 2022). 239 Id. 240See Chase DiBenedetto, 4 ways mobile apps 

could be a lot more accessible, Mashable (Dec. 19, 

2021), https://mashable.com/article/mobile-appsaccessibility-fixes [https://perma.cc/WC6M-2EUL]. 

241See, e.g., W3C®, Easy Checks—A First Review 

of Web Accessibility, (updated Jan. 31, 2023), 

https://www.w3.org/WAI/test-evaluate/preliminary/ 

[https://perma.cc/N4DZ-3ZB8]. 

242W3C®, Tables Tutorial (updated Feb. 16, 

2023), https://www.w3.org/WAI/tutorials/tables/ 

[https://perma.cc/FMG2-33C4]. 

243W3C®, Images Tutorial (Feb. 08, 2022), 

https://www.w3.org/WAI/tutorials/images/ [https://

perma.cc/G6TL-W7ZC]. 

a traditional home broadband service.237

Specific issues that arise when 

individuals with disabilities attempt to 

access web content on mobile devices 

include but are not limited to: actions 

(such as resizing) that require specific 

manual operations, cancellation 

functions that cannot be terminated, and 

orientation requirements. Any standards 

to ensure accessibility of web content 

and mobile applications must consider 

how that web content will be viewed 

and used on mobile devices. 

The Department is aware that some 

recipients, including doctors’ offices, 

hospitals, and social service offices, use 

kiosks or similar self-service transaction 

machines for members of the public to 

perform a number of tasks including 

checking in for appointments, providing 

information for the receipt of services, 

procuring services, measuring vitals, 

and performing other services without 

interacting directly with recipient staff. 

While these kiosks may be convenient 

in certain instances, they may also be 

inaccessible to individuals with certain 

disabilities, especially when they were 

not designed with the needs of 

individuals with disabilities in mind. 

The use of inaccessible kiosks that 

result in delays checking in, privacy 

concerns, and even the complete 

inability of people with disabilities to 

check in for their appointments results 

in avoidable lack of access to health and 

human services. 

The Department is also aware that 

some recipients, including health care 

providers, regularly use mobile devices 

and applications to coordinate check-in 

procedures, gather information, and 

communicate between patients, 

providers, and third parties, such as 

pharmacies and other clinicians. In 

some instances, recipients have begun 

to provide mobile devices, such as iOS 

or Android tablets, in waiting rooms so 

that individuals may fill out forms or 

questionnaires prior to an appointment, 

or during the process of interacting with 

the recipient, while others provide the 

tablets for check-in and other 

informational purposes. Much like with 

kiosks, the use of mobile devices for 

check-in and other purposes may 

present barriers to services if they are 

not accessible to individuals with 

disabilities. 

Barriers to Web, Mobile App, and Kiosk 

Accessibility 

Millions of individuals in the United 

States have disabilities that can affect 

their use of the web and mobile apps. 

Many of these individuals use assistive 

technology to enable them to navigate 

websites or access information 

contained on those sites. For example, 

individuals who are unable to use their 

hands may use speech recognition 

software to navigate a website, while 

individuals who are blind may rely on 

a screen reader to convert the visual 

information on a website into speech. 

Many websites and mobile apps fail to 

incorporate or activate features that 

enable users with certain types of 

disabilities to access all of the 

information or elements on the website 

or app. For instance, individuals who 

are deaf may be unable to access 

information in web videos and other 

multimedia presentations that do not 

have captions. Individuals with low 

vision may be unable to read websites 

or mobile apps that do not allow text to 

be resized or do not provide enough 

contrast. Individuals with limited 

manual dexterity or vision disabilities 

who use assistive technology that 

enables them to interact with websites 

may be unable to access sites that do not 

support keyboard alternatives for mouse 

commands. These same individuals, 

along with individuals with cognitive 

and vision disabilities, often experience 

difficulty using portions of websites that 

require timed responses from users but 

do not give users the opportunity to 

indicate that they need more time to 

respond. 

Individuals who are blind or have low 

vision often face significant barriers 

attempting to access websites and 

mobile apps. For example, a study from 

the University of Washington analyzed 

approximately 10,000 mobile apps and 

found that many are highly inaccessible 

to people with disabilities.238 The study 

found that 23 percent of the mobile apps 

reviewed did not provide content 

description of images for most of their 

image-based buttons. As a result, the 

functionality of those buttons is not 

accessible for people who use screen 

readers.239 Additionally, other mobile 

apps may be inaccessible if they do not 

allow text resizing, which can provide 

larger text for persons with vision 

disabilities.240

Furthermore, many websites provide 

information visually, without features 

that allow screen readers or other 

assistive technology to retrieve 

information on the website so it can be 

presented in an accessible manner. A 

common barrier to website accessibility 

is an image or photograph without 

corresponding text describing the image. 

A screen reader or similar assistive 

technology cannot ‘‘read’’ an image 

without corresponding text, leaving 

individuals who are blind with no way 

of independently knowing what 

information the image conveys (e.g., a 

simple icon or a detailed graph). 

Similarly, if websites lack navigational 

headings or links that facilitate 

navigation using a screen reader it will 

be difficult or impossible for a someone 

using a screen reader to understand.241

Additionally, these websites may fail to 

present tables in a way that allows the 

information in the table to be 

interpreted or accessed by someone who 

is using a screen reader.242

Web-based forms, which are an 

essential part of accessing certain health 

and human services, are often 

inaccessible to individuals with 

disabilities who use screen readers. For 

example, field elements on forms, 

which are the empty boxes on forms 

that hold specific pieces of information, 

such as a last name or telephone 

number, may lack clear labels that can 

be read by assistive technology. 

Inaccessible form fields make it difficult 

for persons using screen readers to fill 

out online forms, pay fees, submit 

inquiries, or otherwise participate in 

recipient programs or activities using a 

website. Some recipients use 

inaccessible third-party websites to 

accept online payments, while others 

request patients check in through their 

own inaccessible websites. These 

barriers greatly impede the ability of 

individuals with disabilities to access 

the programs and activities offered by 

recipients on the web. In many 

instances, removing certain website 

barriers is neither difficult nor 

especially costly. For example, the 

addition of invisible attributes known as 

alternative (alt) text or alt tags to an 

image helps orient an individual using 

a screen reader and allows them to gain 

access to the information on the 

website. This can be done without any 

specialized equipment.243 Similarly, 

adding headings, which facilitate page 


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244See, 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 Just. (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 Just. (Mar. 23, 

2022), https://www.c-c-d.org/fichiers/CCD-WebAccessibility-Letter-to-DOJ-03232022.pdf [https://

perma.cc/Q7YB-UNKV]. 

245National 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). 

246Amanda 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-healthinformation-access-understanding-and-use. 

247See, 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.). 

248See, 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.’’). 

249See, e.g., Settlement Agreement Under the 

Americans With Disabilities Act Between the 

United States of America and Rite Aid Corporation 

(Nov. 1, 2021), https://www.justice.gov/opa/pr/ 

justice-department-secures-agreement-rite-aidcorporation-make-its-online-covid-19-vaccine; 

Settlement Agreement Under the Americans With 

Disabilities Act Between the United States of 

America and Hy-Vee, Inc. (Dec. 1, 2021), https://

www.justice.gov/crt/case-document/file/1493151/ 

download; Settlement Agreement Between the 

United States of America and the ChampaignUrbana Mass Transit District Under the Americans 

with Disabilities Act (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/9AMQGPP3]; Consent Decree, Dudley v. Miami Univ. (Oct. 

Continued 

navigation for those using screen 

readers, can often be done easily as 

well. 

Beyond web and mobile content, 

kiosks may contain a host of barriers 

that limit accessibility. The Department 

has received information from 

individuals with physical disabilities 

who have experienced difficulty 

reaching the controls on kiosks, or 

operating controls that require tight 

grasping, pinching, or twisting. 

Individuals with hearing loss may not 

be able to operate a kiosk effectively if 

audio commands or information are not 

provided in an alternative format. The 

Department is aware of the barriers 

created by inaccessible kiosks, 

particularly in health care, so the 

proposed rule includes a provision 

specifically addressing recipients’ 

existing obligations with respect to 

kiosks. Of course, the existing general 

nondiscrimination provision in § 84.4 

(which this NPRM proposes to 

redesignate as § 84.68) continues to 

apply to all HHS-funded programs and 

activities, including those provided via 

technology. 

Voluntary Compliance With Technical 

Standards for Web Accessibility Has 

Been Insufficient in Providing Access 

The web has changed significantly 

and its use has become far more 

prevalent since Congress enacted the 

Rehabilitation Act in 1973 and the ADA 

in 1990. Neither of the laws specifically 

addressed recipients’ or public entities’ 

use of websites, mobile apps, or kiosks 

to provide their programs and activities. 

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 (ICANN), the 

Internet Society (ISOC) publishes 

computer security policies and 

procedures for websites, and the World 

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 Web Content 

Accessibility Guidelines (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 and its Federal 

partners to take regulatory action to 

ensure web and mobile app 

accessibility.244 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.245

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 

compliant with Web Content 

Accessibility Guidelines (WCAG) 2.1.246

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.247

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.248 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.249


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17, 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 American 

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 

American, 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/louisianatech.htm [https://perma.cc/78ES-4FQR]. 

250 In re Alaska Dep’t. of Educ. and Early Dev., 

OCR Reference No. 10161093 (U.S. Dep’t of Educ. 

Dec. 11, 2017) (resolution agreement), https://

www2.ed.gov/about/offices/list/ocr/docs/ 

investigations/more/10161093-b.pdf [https://

perma.cc/DUS4-HVZJ]. 

251See Voluntary Compliance Agreement 

Between the U.S. Department of Housing and Urban 

Development and the City of Los Angeles, 

California, (Aug. 2, 2019), https://www.hud.gov/ 

sites/dfiles/Main/documents/HUD-City-of-LosAngeles-VCA.pdf [https://perma.cc/X5RN-AJ5K]. 

252W3C®, Web Content Accessibility Guidelines 

2.1 (June 5, 2018), https://www.w3.org/TR/ 

WCAG21/ [https://perma.cc/UB8A-GG2F]. 

253See Statement of Interest of the United States 

of America in Vargas v. Quest Diagnostics Clinical 

Laboratories, Inc. et al., No. 2:19–cv–08108 (C.D. 

Cal. filed Sept. 20, 2021). 

254 45 CFR 84.22(b). 

Moreover, other Federal agencies have 

also taken enforcement action against 

public entities regarding the lack of 

accessible websites for people with 

disabilities. In December 2017, for 

example, the U.S. Department of 

Education entered into a resolution 

agreement with the Alaska Department 

of Education and Early Development for 

violating Federal statutes, including 

section 504 and title II of the ADA, by 

denying people with disabilities an 

equal opportunity to participate in 

Alaska Department of Education and 

Early Development’s services, programs, 

and activities, due to website 

inaccessibility.250 Similarly, the U.S. 

Department of Housing and Urban 

Development took action against the 

City of Los Angeles, and its subrecipient 

housing providers, to ensure that it 

maintained an accessible housing 

website concerning housing 

opportunities.251

The Department believes that 

adopting technical standards for web 

and mobile app accessibility will 

provide 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 and 

mobile app accessibility will also 

provide individuals with disabilities 

with consistent and predictable access 

to the websites and mobile apps of 

recipients. 

Section-by-Section Analysis 

This section details the Department’s 

proposed changes to the section 504 

regulation, including the reasoning 

behind the proposals, and poses 

questions for public comment. 

Definitions 

The Department proposes to add to 

§ 84.10, the Definitions section, the 

following terms applicable to this 

subpart: ‘‘Archived web content,’’ 

‘‘Conventional electronic documents,’’ 

‘‘Kiosks,’’ ‘‘Mobile applications (apps),’’ 

‘‘WCAG 2.1,’’ and ‘‘Web content.’’ Each 

term is explained in the preamble 

discussion for § 84.10. 

The Department poses questions for 

feedback about its proposed approach. 

Comments on all aspects of this 

proposed rule, including these proposed 

definitions, are invited. Please provide 

as much detail as possible and any 

applicable data, suggested alternative 

approaches or requirements, arguments, 

explanations, and examples in your 

responses to the following questions. 

• 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 § 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.’’ 252

The Department is proposing to create 

a new subpart to its section 504 

regulation. Subpart I will address the 

accessibility of recipients’ web content, 

mobile apps, and kiosks. 

§ 84.82 Application 

This proposed section states that this 

subpart applies to all programs or 

activities that receive Federal financial 

assistance from the Department. 

§ 84.83 Accessibility of Kiosks 

This section provides general 

nondiscrimination requirements for 

programs or activities that recipients 

provide through or with the use of 

kiosks. It provides that 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 

or with the use of kiosks. 

The Department proposes this section 

in light of the increasingly common use 

of kiosks in health care settings for 

purposes of checking in patients, 

gathering information from them, and 

taking vital signs. The Department is not 

proposing specific technical 

requirements for kiosks, but proposes to 

include general language recognizing 

that section 504 prohibits recipients 

from discriminating on the basis of 

disability in their programs or activities 

provided through kiosks because of the 

inaccessibility of those devices. This 

language also aligns with DOJ’s view 

that the ADA’s protections apply when 

a covered entity uses kiosks to deliver 

its programs, services, or activities.253

The Department believes the inclusion 

of this language is important to ensure 

that recipients are aware of their 

existing obligations to ensure that their 

programs and activities provided 

through kiosks are nondiscriminatory. 

Recipients that use kiosks may make 

their programs accessible 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.254 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 workaround procedures must afford persons 

with disabilities the same access, the 

same convenience, and the same 

confidentiality that the kiosk system 

provides. 

In instances where kiosks are closed 

functionality devices that do not rely on 

web content or mobile apps, the 

proposed technical standards in § 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. 


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255U.S. Access Board, Self Service Transaction 

Machines, https://www.access-board.gov/sstms/. 

256U.S. Off. of Mgmt. & Budget, Off. of 

Information & Reg. Affs, Accessibility Guidelines 

for Self-Service Transaction Machines, https://

www.reginfo.gov/public/do/eAgendaViewRule?

pubId=202304&RIN=3014-AA44 (last visited Aug. 

8, 2023). 

257W3C®, About Us, https://www.w3.org/about/ 

[https://perma.cc/TQ2W-T377]. 258W3C®, Web Content Accessibility Guidelines 

2.0 (Dec., 2008), http://www.w3.org/TR/2008/RECWCAG20-20081211/[https://perma.cc/L2NH-VLCR]. 

259W3C®, Web Accessibility Guidelines 2.0 

Approved as ISO/IEC International Standard (Oct. 

15, 2012), https://www.w3.org/press-releases/2012/ 

wcag2pas/ [https://perma.cc/JQ39-HGKQ]. 

260W3C®, Web Content Accessibility Guidelines 

2.1 (June 2018), https://www.w3.org/TR/WCAG21/ 

[https://perma.cc/UB8A-GG2F]. Additionally, in 

May 2021, WAI published a working draft for 

WCAG 2.2, which has yet to be finalized. W3C®, 

Web Content Accessibility Guidelines 2.2 (May 21, 

2021), https://www.w3.org/TR/WCAG22/ [https://

perma.cc/M4G8-Z2GY]. The WAI also published a 

working draft of WCAG 3.0 in December 2021. 

W3C®, Web Content Accessibility Guidelines 3.0 

(Dec. 7, 2021), https://www.w3.org/TR/wcag-3.0/ 

[https://perma.cc/7FPQ-EEJ7]. 

261See W3C®, Web Content Accessibility 

Guidelines 2.1 (June 5, 2018), https://www.w3.org/ 

TR/WCAG21/ [https://perma.cc/UB8A-GG2F]. 

262See W3C®, Web Content Accessibility 

Guidelines 2.1, WCAG 2 Layers of Guidance (June 

5, 2018), https://www.w3.org/TR/WCAG21/#wcag-2- 

layers-of-guidance [https://perma.cc/5PDG-ZTJE] 

(emphasis added). 

263W3C®, What’s New in WCAG 2.1 (Aug. 13, 

2020), https://www.w3.org/WAI/standardsguidelines/wcag/new-in-21/ [https://perma.cc/ 

W8HK-Z5QK]. 

264 Id. 

265 Id. 

266See id. 

267See W3C®, Web Content Accessibility 

Guidelines 2.1, Reflow (June 5, 2018), https://

www.w3.org/TR/WCAG21/#reflow [https://

perma.cc/YRP5-M599]. 

This may require the recipient to 

provide reasonable modifications to 

policies, practices, or procedures, as 

required by § 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. 

The Department is aware that the U.S. 

Access Board is working on a 

rulemaking to amend the ADA 

Accessibility Guidelines to address the 

accessibility of fixed self-service 

transaction machines, self-service 

kiosks, information transaction 

machines, and point-of-sale devices. 

The Access Board issued an advance 

notice of proposed rulemaking on these 

issues in September 2022 and heard 

from more than 70 commenters.255 The 

Board is now in the process of 

developing a notice of proposed 

rulemaking, which may be issued by 

December 2023.256 Once these 

guidelines are final, to be enforceable, 

DOJ and the U.S. Department of 

Transportation would have to adopt 

them, via separate rulemakings, before 

they would become enforceable 

standards for devices and equipment 

covered by the ADA. Similarly, HHS 

will consider adopting these guidelines 

under section 504 once they are 

finalized. 

§ 84.84 Requirements for Web and 

Mobile Accessibility 

General 

Proposed § 84.84 sets forth specific 

requirements for the accessibility of web 

content and mobile apps of recipients. 

Proposed § 84.84(a) requires a recipient 

to ‘‘ensure the following are readily 

accessible to and usable by individuals 

with disabilities: (1) web content that a 

recipient makes available to members of 

the public or uses to offer programs or 

activities to members of the public; and 

(2) mobile apps that a recipient makes 

available to members of the public or 

uses to offer programs and activities to 

members of the public.’’ As detailed 

below, the remainder of proposed 

§ 84.84 sets forth the specific standards 

that recipients are required to meet to 

make their web content and mobile apps 

accessible and the proposed timelines 

for compliance. 

On August 4, 2023, DOJ published an 

NPRM in the Federal Register, 88 FR 

51948, addressing the accessibility of 

websites and mobile applications for 

entities covered by title II of the ADA. 

The Department has closely coordinated 

this subpart with DOJ and much of this 

Department’s preamble and its 

regulatory text are the same as the 

language in the DOJ NPRM. The 

Department will continue to work 

closely with DOJ as each agency reviews 

comments in response to their 

individual NPRMs and develops their 

rules in final form. 

Background on Accessibility Standards 

for Websites and Web Content 

Since 1994, the World Wide Web 

Consortium (W3C®) has been the 

principal international organization 

involved in developing protocols and 

guidelines for the web.257 The W3C®

develops a variety of voluntary 

technical standards and guidelines, 

including ones relating to privacy, 

internationalization of technology, and, 

relevant to this rulemaking, 

accessibility. The Web Accessibility 

Initiative (WAI) of theW3C® has 

developed voluntary guidelines for web 

accessibility, known as the Web Content 

Accessibility Guidelines (WCAG), to 

help web developers create web content 

that is accessible to individuals with 

disabilities. 

The first version of WCAG, WCAG 

1.0, was published in 1999. WCAG 2.0 

was published in December 2008.258

WCAG 2.0 was approved as an 

international standard by the 

International Organization for 

Standardization (ISO) and the 

International Electrotechnical 

Commission (IEC) in October 2012.259

WCAG 2.1, the most recent and updated 

recommendation of WCAG, was 

published in June 2018.260

WCAG 2.1 contains four principles 

that provide the foundation for web 

accessibility: perceivable, operable, 

understandable, and robust.261 Testable 

success criteria (i.e., requirements for 

web accessibility that are measurable) 

are provided ‘‘to be used where 

requirements and conformance testing 

are necessary such as in design 

specification, purchasing, regulation 

and contractual agreements.’’ 262 Thus, 

WCAG 2.1 contemplates establishing 

testable success criteria that could be 

used in regulatory efforts such as this 

one. 

Proposed WCAG Version 

The Department is proposing to adopt 

WCAG 2.1 as the technical standard for 

web and mobile app accessibility under 

section 504. WCAG 2.1 represents the 

most recent and updated published 

recommendation of WCAG. WCAG 2.1 

incorporates and builds upon WCAG 

2.0—meaning that WCAG 2.1 includes 

all of the WCAG 2.0 success criteria, in 

addition to success criteria that were 

developed under WCAG 2.1.263

Specifically, WCAG 2.1 added 12 Level 

A and AA success criteria to the 38 

success criteria contained in WCAG 2.0 

AA.264 The additional criteria provide 

important accessibility benefits, 

especially for people with low vision, 

manual dexterity disabilities, and 

cognitive and learning disabilities.265

The additional criteria are intended to 

improve accessibility for mobile web 

content and mobile apps.266 The 

Department anticipates that WCAG 2.1 

is familiar to web developers as it 

comprises WCAG 2.0’s requirements— 

which have been in existence since 

2008—and 12 new Level A and AA 

requirements that have been in 

existence since 2018. 

The Department expects that adopting 

WCAG 2.1 as the technical standard will 

have benefits that are important to 

ensuring access for people with 

disabilities to recipients’ programs and 

activities. For example, WCAG 2.1 

requires that text be formatted so that it 

is easier to read when magnified.267


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268 Id. 

269See W3C®, Web Content Accessibility 

Guidelines 2.1, Orientation (June 5, 2018), https:// 

www.w3.org/TR/WCAG21/#orientation [https://

perma.cc/FC3E-FRYK]. 

270 Id. 

271See id. 

272See W3C®, Web Content Accessibility 

Guidelines 2.1, Motion Actuation (June 5, 2018), 

https://www.w3.org/TR/WCAG21/#motionactuation [https://perma.cc/6S93-VX58]. 

273 Id. 

274 General Services Administration Digital 

Analytics Program, https://analytics.usa.gov/ 

[https://perma.cc/2YZP-KCMG] (last visited Aug. 8, 

2022). 

275W3C®, WCAG 2.0 Overview (June 30, 2022), 

https://www.w3.org/WAI/standards-guidelines/ 

wcag/ [https://perma.cc/L7NX-8XW3]. 

276W3C®, Understanding WCAG 2.1 (July 7, 

2022), https://www.w3.org/WAI/WCAG21/ 

Understanding/intro [https://perma.cc/4TZQUSCJ]. 

277See, e.g., Settlement Agreement with CVS 

Pharmacy, Inc. (Apr. 11, 2022), https://

archive.ada.gov/cvs_sa.pdf [https://perma.cc/ 

H5KZdocuments/attachments/2021/12/14/ 

champaign-urbana_sa.pdf [https://perma.cc/66XYQGA8]; Settlement Agreement with Hy-Vee, Inc. 

(Dec. 1, 2021) https://archive.ada.gov/hy-vee_sa.pdf 

[https://perma.cc/GFY6-BJNE]; Settlement 

Agreement with Rite Aid Corp. (Nov. 1, 2021), 

https://archive.ada.gov/rite_aid_sa.pdf [https://

perma.cc/4HBF-RBK2].-4VVF]; Settlement 

Agreement with Meijer, Inc. (Feb. 2, 2022), https:// 

archive.ada.gov/meijer_sa.pdf [https://perma.cc/ 

5FGD-FK42]; Settlement Agreement with The 

Kroger Co. (Jan. 28, 2022), https://archive.ada.gov/ 

kroger_co_sa.pdf [https://perma.cc/6ASX-U7FQ]; 

Settlement Agreement with Champaign-Urbana 

Mass Transit Dist. (Dec. 14, 2021), https://

www.justice.gov/d9/case-. 

278 36 CFR 1194, app. A. 

279See Information and Communication 

Technology (‘‘ICT’’) Standards and Guidelines, 82 

FR 5790, 5791 (Jan. 18, 2017); W3C®, Web Content 

Accessibility Guidelines 2.1 (June 5, 2018), https:// 

www.w3.org/TR/WCAG21/ [https://perma.cc/UB8AGG2F]. 

280See e.g., Exploring WCAG 2.1 for Australian 

government services, Australian Government Digital 

Transformation Agency (Aug. 22, 2018), https://

www.dta.gov.au/blogs/exploring-wcag-21- 

australian-government-services. 

281Web Accessibility, European Commission (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 Telecommunications 

Standards Institute, 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/5TEZ9GC6]. 

282See 14 CFR 382. 

This is important, for example, for 

people with low vision who use 

magnifying tools. Without the 

formatting that WCAG 2.1 requires, a 

person magnifying the text might find 

reading the text disorienting because 

they could have to scroll horizontally on 

every line.268

WCAG 2.1 also has new success 

criteria addressing the accessibility of 

mobile apps or web content viewed on 

a mobile device. For example, WCAG 

2.1 Success Criterion 1.3.4 requires that 

page orientation (i.e., portrait or 

landscape) not be restricted to just one 

orientation unless a specific display 

orientation is essential.269 This feature 

is important, for example, for someone 

who uses a wheelchair with a tablet 

attached to it such that the tablet cannot 

be rotated.270 If content only works in 

one orientation (i.e., portrait or 

landscape) it will not always work for 

this individual depending on how the 

tablet is oriented and could render that 

content or app unusable for the 

person.271 Another WCAG 2.1 success 

criterion requires, in part, that if a 

device can be operated by motion—for 

example, shaking the device to undo 

typing—that there be an option to turn 

off that motion sensitivity.272 This could 

be important, for example, for someone 

who has tremors so that they do not 

accidentally undo their typing.273

Such accessibility features are critical 

for people with disabilities to have 

equal access to recipients’ programs and 

activities. This is particularly true given 

that using mobile devices to access 

government services is commonplace. 

For example, in August 2022, about 54 

percent of visits to Federal Government 

websites over the previous 90 days were 

from mobile devices.274 In addition, 

WCAG 2.1’s incorporation of mobilerelated criteria is important because of 

recipients’ increasing use of mobile 

apps in offering their programs and 

activities via mobile apps. As discussed 

in more detail later, recipients are using 

mobile apps to offer a range of critical 

services. 

Because WCAG 2.1 is the most recent 

recommended version of WCAG and 

generally familiar to web professionals, 

the Department expects it is wellpositioned to continue to be relevant 

even as technology inevitably evolves. 

In fact, the W3C® advises using WCAG 

2.1 over WCAG 2.0 when possible 

because WCAG 2.1 incorporates more 

forward-looking accessibility needs.275

The WCAG standards were designed to 

be ‘‘technology neutral.’’ This means 

that they are designed to be broadly 

applicable to current and future 

technologies.276 Thus, WCAG 2.1 also 

allows web and mobile app developers 

flexibility and potential for innovation. 

The Department also expects that 

recipients are likely already familiar 

with WCAG 2.1 or will be able to 

become familiar quickly. This is because 

WCAG 2.1 has been available since 

2018, and it builds upon WCAG 2.0, 

which has been in existence since 2008 

and has been established for years as a 

benchmark for accessibility. In other 

words, the Department expects that web 

developers and professionals who work 

for or with recipients are likely to be 

familiar with WCAG 2.1, and if they are 

not already familiar with WCAG 2.1, the 

Department expects that they are at least 

likely to be familiar with WCAG 2.0 and 

will be able to become acquainted 

quickly with WCAG 2.1’s 12 additional 

Level A and AA success criteria. The 

Department also believes that resources 

exist to help recipients implement or 

understand how to implement not only 

WCAG 2.0 Level AA, but also WCAG 

2.1 Level AA. Additionally, recipients 

will have two or three years to come 

into compliance with a final rule, which 

should also provide sufficient time to 

get acquainted with and implement 

WCAG 2.1. 

According to the Department’s 

research, WCAG 2.1 is also being 

increasingly used by members of the 

public and recipients. In fact, DOJ 

recently included WCAG 2.1 in several 

settlement agreements with covered 

entities addressing inaccessible 

websites.277

In evaluating what technical standard 

to propose, the Department also 

considered WCAG 2.0. In addition, the 

Department considered the standards 

set forth under section 508 of the 

Rehabilitation Act, which governs the 

accessibility of the Federal 

Government’s web content and is 

harmonized with WCAG 2.0.278 In 2017, 

when the United States Access Board 

adopted WCAG 2.0 as the technical 

standard for the Federal Government’s 

web content under section 508, WCAG 

2.1 had not been finalized.279 The 

Department ultimately decided to 

propose WCAG 2.1 as the appropriate 

standard. A number of countries that 

have adopted WCAG 2.0 as their 

standard are now making efforts to 

move or have moved to WCAG 2.1.280

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 Level 

AA success criteria.281 And although 

WCAG 2.0 is the standard adopted by 

the Department of Transportation in its 

rule implementing the Air Carrier 

Access Act, which covers airlines’ 

websites and kiosks,282 that rule—like 

the section 508 rule—was promulgated 

before WCAG 2.1 was published. 

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. 

According to the Department’s research, 

approximately 48 States either use or 

strive to use a WCAG 2.0 standard or 


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283W3C®, Web Content Accessibility Guidelines 

2.2 (July 20, 2023), https://www.w3.org/TR/ 

WCAG22/. 284See, e.g., W3C®, Web Content Accessibility 

Guidelines 2.2 (May 17, 2023), https://www.w3.org/ 

TR/WCAG22/ [https://perma.cc/SXA7-RF32]. 285W3C®, What’s New in WCAG 2.2 Draft (May 

17, 2023), https://www.w3.org/WAI/standardsguidelines/wcag/new-in-22/ [https://perma.cc/ 

Y67R-SFSE]. 

286 Id. 

287 Id. 

288W3C®, Web Content Accessibility Guidelines 

(WCAG) 2 Level A Conformance (July 13, 2020), 

https://www.w3.org/WAI/WCAG2A-Conformance 

[https://perma.cc/KT74-JNHG]. 289 Id. 290 Id. 291See W3C®, Understanding Conformance, 

Understanding Requirement 1 (last updated Aug. 

19, 2022), https://www.w3.org/WAI/WCAG21/ 

Understanding/conformance [https://perma.cc/ 

9ZG9-G5N8]. 

292See W3C®, Web Accessibility Laws & Policies 

(Mar. 21, 2018), https://www.w3.org/WAI/policies/ 

[https://perma.cc/5EBY-3WX4]. 

293See Information and Communication 

Technology (‘‘ICT’’) Standards and Guidelines, 82 

FR 5790, 5791 (Jan. 18, 2017). 

294See W3C®, Conformance Requirements, Web 

Content Accessibility Guidelines (WCAG) 2.1 (June 

5, 2018), https://www.w3.org/TR/WCAG21/#cc1 

[https://perma.cc/ZL6N-VQX4]. WCAG 2.1 also 

states that a Level AA conforming alternate version 

may be provided. The Department has adopted a 

slightly different approach to conforming alternate 

versions, which is discussed below. 

greater for at least some of their state 

web content. It appears that at least four 

of these States—Louisiana, Maryland, 

Nebraska, and Washington—already 

either use WCAG 2.1 or strive to use 

WCAG 2.1 for at least some of their web 

content. 

WCAG 2.1 represents the most up-todate recommendation and is generally 

familiar to web professionals. It offers 

important accessibility benefits for 

people with disabilities that affect 

manual dexterity, adds some criteria to 

reduce barriers for those with low vision 

and cognitive disabilities, and expands 

coverage of mobile content. Given that 

recipients will have two or three years 

to comply, the Department views WCAG 

2.1 as the appropriate technical 

standard to propose at this time. 

The Department is aware that a 

working draft for WCAG 2.2 was 

published in May 2021 with a newer 

draft published in July of 2023.283

Several subsequent drafts have also 

been published.284 All of the WCAG 2.0 

and WCAG 2.1 success criteria except 

for one are included in WCAG 2.2.285

But WCAG 2.2 also includes six 

additional Level A and AA success 

criteria beyond those included in 

WCAG 2.1.286 Like WCAG 2.1, WCAG 

2.2 offers benefits for individuals with 

low vision, limited manual dexterity, 

and cognitive disabilities. For example, 

Success Criterion 3.3.8, which is a new 

criterion under the working draft of 

WCAG 2.2, improves access for people 

with cognitive disabilities by limiting 

the use of cognitive function tests, like 

solving puzzles, in authentication 

processes.287 Because WCAG 2.2 has not 

yet been finalized and is subject to 

change, and web professionals have had 

less time to become familiar with the 

additional success criteria that have 

been incorporated into the working draft 

of WCAG 2.2, the Department does not 

believe it is appropriate to adopt WCAG 

2.2 as the technical standard at this 

time. 

The Department is seeking feedback 

from the public about its proposal to use 

WCAG 2.1 as the standard under this 

rule and its assumptions underlying this 

decision. Please provide as much detail 

as possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to 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? 

Proposed WCAG Conformance Level 

For a web page to conform to WCAG 

2.1, the web page must satisfy the 

success criteria under one of three levels 

of conformance: A, AA, or AAA. The 

three levels of conformance indicate a 

measure of accessibility and feasibility. 

Level A, which is the minimum level of 

accessibility, contains criteria that 

provide basic web accessibility and are 

the least difficult to achieve for web 

developers.288 Level AA, which is the 

intermediate level of accessibility, 

includes all of the Level A criteria and 

contains enhanced criteria that provide 

more comprehensive web accessibility 

and yet, are still achievable for most 

web developers.289 Level AAA, which is 

the highest level of conformance, 

includes all of the Level A and Level 

AA criteria and contains additional 

criteria that can provide a more 

enriched user experience, but are the 

most difficult to achieve for web 

developers.290 The W3C® does not 

recommend that Level AAA 

conformance be required as a general 

policy for entire websites because it is 

not possible to satisfy all Level AAA 

criteria for some content.291

Based on review of previous public 

feedback and independent research, the 

Department believes that WCAG 2.1 

Level AA is an appropriate conformance 

level because it includes criteria that 

provide web accessibility to individuals 

with disabilities—including those with 

visual, auditory, physical, speech, 

cognitive, and neurological 

disabilities—and yet is feasible for 

recipients’ web developers to 

implement. In addition, Level AA 

conformance is widely used, making it 

more likely that web developers are 

already familiar with its requirements. 

While many of the entities that conform 

to Level AA do so under WCAG 2.0, not 

2.1, this still suggests a widespread 

familiarity with most of the Level AA 

success criteria, given that 38 of the 50 

Level A and AA success criteria in 

WCAG 2.1 are also included in WCAG 

2.0. The Department believes that Level 

A conformance alone is not appropriate 

for recipients because it does not 

include criteria for providing web 

accessibility that the Department 

understands are critical, such as 

minimum level of color contrast so that 

items like text boxes or icons are easier 

to see, which is important for people 

with vision disabilities. Also, while 

Level AAA conformance provides a 

richer user experience, it is the most 

difficult to achieve for many entities. 

Therefore, the Department is proposing 

Level AA conformance for public 

feedback as to whether it strikes the 

right balance between accessibility for 

individuals with disabilities and 

achievability for recipients. 

Adopting a WCAG 2.1 Level AA 

conformance level would make the ADA 

requirements consistent with a standard 

that has been widely accepted 

internationally. Many nations have 

selected Level AA conformance as their 

standard for web accessibility.292 The 

web content of Federal agencies that are 

governed by section 508 also need to 

comply with Level AA.293

In its proposed regulatory text in 

§ 84.84(b)(1) and (2), the Department 

provides that recipients must ‘‘comply 

with Level A and Level AA success 

criteria and conformance requirements 

specified in WCAG 2.1.’’ WCAG 2.1 

provides that for ‘‘Level AA 

conformance, the web page [must] 

satisf[y] all the Level A and Level AA 

Success Criteria. . . .’’ 294 However, 

individual success criteria in WCAG 2.1 

are labeled only as Level A or Level AA. 

Therefore, a person reviewing 

individual requirements in WCAG 2.1 

may not understand that both Level A 

and Level AA success criteria must be 


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295See Federal Social Media Accessibility Toolkit 

Hackpad, Digital.gov (June 21, 2022), https://

digital.gov/resources/federal-social-mediaaccessibility-toolkit-hackpad/ [https://perma.cc/ 

DJ8X-UCHA]. 

met in order to attain Level AA. 

Accordingly, the Department has made 

explicit in its proposed regulation that 

both Level A and Level AA success 

criteria and conformance requirements 

must be met in order to comply with the 

proposed web accessibility 

requirements. 

Conformance Level for Small Recipients 

The Department considered proposing 

another population threshold of very 

small recipients that would be subject to 

a lower conformance level or WCAG 

version, to reduce the burden of 

compliance on those recipients. 

However, the Department decided 

against this proposal due to a variety of 

factors. First, this would make for 

inconsistent levels of WCAG 

conformance across recipients, and a 

universal standard for consistency in 

implementation would promote 

predictability. A universal level of 

conformance would reduce confusion 

about which standard applies, and it 

would create a basic level of compliance 

for all recipients to follow. It would also 

allow for people with disabilities to 

know what they can expect when 

navigating a recipient’s website; for 

example, it will be helpful for people 

with disabilities to know that they can 

expect to be able to navigate a 

recipient’s website independently using 

their assistive technology. Finally, for 

the reasons discussed above, the 

Department believes that WCAG 2.1 

Level AA contains criteria that are 

critical to accessing programs and 

activities of recipients, which may not 

be included under a lower standard. 

However, the Department recognizes 

that small recipients—those with fewer 

than fifteen employees—might initially 

face more technical and resource 

challenges in complying than larger 

recipients. Therefore, as discussed 

below, the Department has decided to 

propose different compliance dates 

according to a recipient’s size to reduce 

burdens on small recipients. 

Possible Alternative Standards for 

Compliance 

The Department considered proposing 

to adopt the section 508 standards for 

ICT, but decided not to take this 

approach. The section 508 standards are 

harmonized with WCAG 2.0 for web 

content and certain other ICT, and for 

the reasons discussed above, the 

Department believes WCAG 2.1—which 

had not been finalized at the time the 

section 508 standards were 

promulgated—is the more appropriate 

recommendation for this proposed rule. 

Moreover, by adopting WCAG on its 

own rather than adopting it through the 

section 508 standards, the Department 

can then tailor the rules to recipients as 

it does in this proposed rule. 

The Department also considered 

adopting performance standards instead 

of specific technical standards for 

accessibility of web content. 

Performance standards establish general 

expectations or goals for web 

accessibility and allow for compliance 

via a variety of unspecified methods. 

Performance standards could provide 

greater flexibility in ensuring 

accessibility as web technologies 

change. However, based on what the 

Department has heard previously from 

the public and its own knowledge of 

this area, the Department understands 

that performance standards might be too 

vague and subjective and could prove 

insufficient in providing consistent and 

testable requirements for web 

accessibility. Additionally, the 

Department expects that performance 

standards would likely not result in 

predictability for either recipients or 

people with disabilities in the way that 

a more specific technical standard 

would. Further, similar to a 

performance standard, WCAG has been 

designed to allow for flexibility and 

innovation in the evolving web 

environment. The Department 

recognizes the importance of adopting a 

standard for web accessibility that 

provides not only specific and testable 

requirements, but also sufficient 

flexibility to develop accessibility 

solutions for new web technologies. The 

Department believes that WCAG 

achieves this balance because it 

provides flexibility similar to a 

performance standard, but it also 

provides more clarity, consistency, 

predictability, and objectivity. Using 

WCAG also enables recipients to know 

precisely what is expected of them 

under section 504, which may be of 

particular benefit to jurisdictions with 

less technological experience. This will 

assist recipients in targeting 

accessibility errors, which may reduce 

costs they would incur without clear 

expectations. 

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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? 

Recipients’ Use of Social Media 

Platforms 

Recipients are increasingly using 

social media platforms to provide 

information and communicate with the 

public about their programs and 

activities in lieu of or in addition to 

engaging the public on their own 

websites. The Department is using the 

term ‘‘social media platforms’’ to refer to 

websites or mobile apps of third parties 

whose primary purpose is to enable 

users to create and share content in 

order to participate in social networking 

(i.e., the creation and maintenance of 

personal and business relationships 

online through websites and mobile 

apps like Facebook, Instagram, Twitter, 

and LinkedIn). 

The Department is proposing to 

require that web content that recipients 

make available to members of the public 

or use to offer programs and activities to 

members of the public be accessible 

within the meaning of proposed § 84.84. 

This requirement would apply 

regardless of whether that web content 

is located on the recipient’s own 

website, or elsewhere on the web. It 

therefore covers web content that a 

recipient offers via a social media 

platform. Even where a social media 

platform is not fully accessible, a 

recipient can generally take actions to 

ensure that the web content that it posts 

is accessible and in conformance with 

WCAG 2.1.295 The Department 

understands that social media platforms 

often make available certain 

accessibility features like the ability to 

add captions or alt text. It is, however, 

the recipients’ responsibility to use 

these features when they make web 

content available on social media sites. 

For example, if a recipient posts an 

image to a social media site 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. 


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296W3C®, What’s New in WCAG 2.1 (Aug. 13, 

2020), https://www.w3.org/WAI/standardsguidelines/wcag/new-in-21/ [https://perma.cc/ 

W8HK-Z5QK]. 

297See 82 FR 5790, 5815 (Jan. 18, 2017). 

298W3C®, What’s New in WCAG 2.1 (Aug. 13, 

2020), https://www.w3.org/WAI/standardsguidelines/wcag/new-in-21/ [https://perma.cc/ 

W8HK-Z5QK]. 

299W3C®, Web Content Accessibility Guidelines 

2.1 (June 5, 2018), https://www.w3.org/TR/ 

WCAG21/ [https://perma.cc/UB8A-GG2F]. 

300 36 CFR part 1194, app. C (sections 502.1, 

502.2.2, 503.2, 503.4.1, and 503.4.2). 

301Section 504 commonly differentiates between 

small and large recipients by measuring whether a 

recipient employs fifteen or more employees, and 

the Department will use that standard to determine 

whether a recipient is large or small for the purpose 

of this section. See, e.g., 45 CFR 84.9 (defining 

recipients with fewer than fifteen employees as 

‘‘small recipients’’ and discussing administrative 

requirements). 

At this time, the Department is not 

proposing any regulatory text specific to 

the web content that recipients offer the 

public via social media platforms 

because content posted on social media 

platforms will be treated the same as 

any other content recipients post on the 

web. However, the Department is 

considering creating an exception from 

coverage under the rule for social media 

posts if they were posted before the 

effective date of the rule. This exception 

would recognize that making 

preexisting social media content 

accessible may be impossible at this 

time or result in a significant burden. 

Many recipients have posted social 

media content for several years, often 

numbering thousands of posts, which 

may not all be accessible. The benefits 

of making all preexisting social media 

posts accessible might also be limited as 

these posts are intended to provide 

current updates on platforms that are 

frequently refreshed with new 

information. The Department is 

considering this exception in 

recognition of the fact that for many 

recipients their resources may be better 

spent ensuring that current web content 

is accessible, rather than reviewing all 

preexisting social media content for 

compliance or possibly deleting their 

previous posts. The Department is 

looking for input on whether this 

approach would make sense and 

whether any limitations to this 

approach are necessary, such as 

providing that the exception does not 

apply when preexisting social media 

content is currently used to offer a 

program or activity, or possibly limiting 

this exception when the public requests 

certain social media content to be made 

accessible. 

The Department is also weighing 

whether recipients’ preexisting videos 

posted to social media platforms such as 

YouTube should be excepted from 

coverage due to these same concerns or 

otherwise be treated differently. 

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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? 

Mobile Applications 

The Department is proposing to adopt 

the same technical standard for mobile 

app accessibility as it is for web 

content—WCAG 2.1 Level AA. As 

discussed earlier, WCAG 2.1 was 

published in June 2018 and was 

developed, in part, to address mobile 

accessibility.296

The Department considered applying 

WCAG 2.0 Level AA to mobile apps, 

which is a similar approach to the 

requirements in the final rule 

promulgated by the United States 

Access Board in its update to the section 

508 Standards.297 WCAG 2.1 was not 

finalized when the Access Board 

adopted the section 508 Standards. 

When WCAG 2.0 was originally drafted 

in 2008, mobile apps were not as widely 

used or developed. Further, the 

technology has grown considerably 

since that time. Accordingly, WCAG 2.1 

provides 12 additional Level A and AA 

success criteria not included in WCAG 

2.0 to ensure, among other things, that 

mobile apps are more accessible to 

individuals with disabilities using 

mobile devices.298 For example, WCAG 

2.1 includes Success Criterion 1.4.12, 

which ensures that text spacing (e.g., 

letter spacing, line spacing, word 

spacing) meets certain requirements to 

ensure accessibility; Success Criterion 

2.5.4, which enables the user to disable 

motion actuation (e.g., disable the 

ability to activate a device’s function by 

shaking it) to prevent such things as 

accidental deletion of text; and Success 

Criterion 1.3.5, which allows a user to 

input information such as a name or 

address automatically.299

The Access Board’s section 508 

Standards include additional 

requirements applicable to mobile apps 

that are not in WCAG 2.1, and the 

Department is requesting feedback on 

whether to adopt those requirements as 

well. For example, the Section 508 

Standards apply the following 

requirements not found in WCAG 2.1 to 

mobile apps: interoperability 

requirements to ensure that a mobile 

app does not disrupt a device’s assistive 

technology for persons with disabilities 

(e.g., screen readers for persons who are 

blind or have low vision); requirements 

for mobile apps to follow preferences on 

a user’s phone such as settings for color, 

contrast, and font size; and 

requirements for caption controls and 

audio description controls that enable 

users to adjust caption and audio 

control functions.300

Adopting WCAG 2.1 Level AA for 

mobile apps will help ensure this rule’s 

accessibility standards for mobile apps 

are consistent with this rule’s 

accessibility standards for web content. 

We seek comments on this approach 

below. Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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? 

Requirements by Recipient Size 

Section 84.84(b) sets forth the 

proposed specific standard with which 

the web content and mobile apps that 

recipients make available to member of 

the public or use to offer programs and 

activities to members of the public must 

comply, and also proposes time frames 

for compliance. The proposed 

requirements of § 84.84(b) are generally 

delineated by the size of the recipient. 

Section 84.84(b)(1): Larger Recipients 

Section 84.84(b)(1) sets forth the 

proposed web and mobile app 

accessibility requirements for recipients 

with fifteen or more employees. The 

requirements of § 84.84(b)(1) are meant 

to apply to larger recipients.301 Under 

the Department’s proposal, the number 

of employees is used to determine a 


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302See 75 FR 43460, 43467 (July 26, 2010). 

recipient’s compliance time frame. Each 

recipient should be able to easily 

determine whether it has fifteen or more 

employees. 

Proposed § 84.84(b)(1) requires that a 

recipient with fifteen or more 

employees shall ensure that the web 

content and mobile apps it makes 

available to members of the public or 

uses to offer programs or activities to 

members of the public, comply with 

Level A and Level AA success criteria 

and conformance requirements 

specified in WCAG 2.1. Recipients 

subject to § 84.84(b)(1) have two years 

after the publication of a final rule to 

make their web content and mobile apps 

accessible, unless they can demonstrate 

that compliance with § 84.84(b)(1) 

would result in a fundamental alteration 

in the nature of a program or activity or 

undue financial and administrative 

burdens. The limitations on a recipient’s 

obligation to comply with the proposed 

requirements are discussed in more 

detail below. 

The Department is aware that 

members of the public have differing 

views on an appropriate time frame for 

requiring compliance with technical 

web accessibility standards. Individuals 

with disabilities or disability advocacy 

organizations tended to prefer a shorter 

time frame, often arguing that web 

accessibility has long been required by 

section 504 and that extending the 

deadline for compliance rewards 

recipients that have not made efforts to 

make their websites accessible. Some 

recipients have asked for more time to 

comply. Some recipients have been 

particularly concerned about shorter 

compliance deadlines, often citing 

budgets and staffing as major 

limitations. In the past, some recipients 

stated that they lacked qualified 

personnel to implement the web 

accessibility requirements of WCAG 2.0, 

which was relatively new at the time. 

Those recipients asserted that in 

addition to needing time to implement 

the changes to their websites, they also 

needed time to train staff or contract 

with professionals who are proficient in 

developing accessible websites. 

Considering all these factors, the 

Department is proposing a two-year 

implementation time frame for 

recipients with 15 or more employees. 

Regulated entities and the community of 

web developers have had over a decade 

to familiarize themselves with WCAG 

2.0, which was published in 2008 and 

serves as the foundation for WCAG 2.1, 

and five years to familiarize themselves 

with the additional 12 success criteria of 

WCAG 2.1. Though the Department is 

now proposing requiring recipients to 

conform with WCAG 2.1 instead of 

WCAG 2.0, the Department believes the 

time allowed to come into compliance 

is appropriate. As discussed above, 

WCAG 2.1 Level AA only adds 12 Level 

A and AA success criteria that were not 

included in WCAG 2.0. The Department 

believes these additional success criteria 

will not significantly increase the time 

or resources that it will take for a 

recipient to come into compliance with 

the proposed rule, beyond what would 

have already been required to conform 

with WCAG 2.0, though the Department 

seeks the public’s input on this belief. 

The Department therefore believes this 

proposal balances the resource 

challenges reported by recipients with 

the interests of individuals with 

disabilities in accessing the multitude of 

programs and activities that recipients 

now offer via the web and mobile apps. 

Section 84.84(b)(2): Small Recipients 

The Department is also aware that 

some recipients believe there should be 

different compliance requirements or a 

different compliance date for small 

recipients in order to take into account 

the impact on small entities as required 

by the Regulatory Flexibility Act of 1980 

and Executive Order 13272.302 Many 

disability organizations and individuals 

have opposed having a different 

timetable or accessibility requirements 

for smaller recipients, stating that many 

small recipients have smaller websites 

with fewer web pages, which would 

make compliance easier. The 

Department is also aware that other 

members of the public oppose different 

timetables or accessibility requirements 

for smaller recipients. These 

commenters note that small recipients 

are protected from excessive burdens 

deriving from rigorous compliance dates 

or stringent accessibility standards by 

the ADA’s ‘‘undue burdens’’ compliance 

limitations. It is also the Department’s 

understanding that many web 

accessibility professionals may operate 

online and could be available to assist 

recipients with compliance regardless of 

their location. 

Many of those expressing concerns 

about compliance dates, including web 

developers, have stated that compliance 

in incremental levels would help 

recipients allocate resources—both 

financial and personnel—to bring their 

websites into compliance. The 

Department is aware that many small 

recipients do not have a dedicated web 

developer or staff. The Department is 

also aware that when these small 

recipients develop or maintain their 

own websites, they often do so with 

staff who have only a cursory 

knowledge of web design and use 

manufactured web templates or 

software, which may create inaccessible 

web pages. Some small recipients have 

expressed concern that even when they 

do use outside help, there is likely to be 

a shortage of professionals who are 

proficient in web accessibility and can 

assist all recipients in bringing their 

websites into compliance. 

In light of these concerns, 

§ 84.84(b)(2) sets forth the Department’s 

proposed web and mobile app 

accessibility requirements for small 

recipients. Specifically, proposed 

§ 84.84(b)(2) covers those recipients 

with fewer than fifteen employees. 

Section 84.84(b)(2) would require these 

recipients to ensure that the web 

content and mobile apps they make 

available to the public or use to offer 

programs and activities to members of 

the public comply with Level A and 

Level AA success criteria and 

conformance requirements specified in 

WCAG 2.1, unless they can demonstrate 

that compliance would result in a 

fundamental alteration in the nature of 

a program or activity or undue financial 

and administrative burdens. This is the 

same substantive standard that applies 

to larger recipients. However, the 

Department is proposing to give these 

small recipients additional time to bring 

their web content and mobile apps into 

compliance with § 84.84(b)(2). 

Specifically, small recipients covered by 

§ 84.84(b)(2) will have three years after 

the publication of a final rule to make 

their web content and mobile apps 

compliant with the Department’s 

proposed requirements. The Department 

believes this longer phase-in period 

would be prudent to allow small 

recipients to properly allocate their 

personnel and financial resources in 

order to bring their web content and 

mobile apps into compliance with the 

Department’s proposed requirements. 

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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 


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303See W3C®, Captions (Live), Understanding 

WCAG 2.0: A Guide to Understanding and 

Implementing WCAG 2.0, http://www.w3.org/TR/ 

UNDERSTANDING-WCAG20/media-equiv-realtime-captions.html [https://perma.cc/NV74-U77R] 

(last visited Aug. 10, 2022) (emphasis in original). 

304See W3C®, Canada (last updated Feb. 9, 2017), 

https://www.w3.org/WAI/policies/canada/ [https://

perma.cc/W2DS-FAE9]. 

305See id. 

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? 

Limitations 

The proposed rule sets forth the 

limitations on recipients’ obligations to 

comply with the specific requirements 

of this proposed rule. For example, 

where it would impose an undue 

financial and administrative burden to 

conform with WCAG 2.1 (or part of 

WCAG 2.1), recipients would not be 

required to remove their web content 

and mobile apps, forfeit their web 

presence, or otherwise undertake 

changes that would be unduly 

burdensome. Further, as proposed in 

§ 84.84(b), the web and mobile app 

accessibility requirements would not 

require any recipient to take actions that 

would result in a fundamental alteration 

in the nature of a program or activity. 

In circumstances where officials of a 

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 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 required to 

comply with proposed § 84.84(b) 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 burdens but would 

nevertheless ensure that, to the 

maximum extent possible, individuals 

with disabilities receive the benefits or 

services provided by the recipient. For 

more information, see the discussion 

below regarding limitations on 

obligations under proposed § 84.85. 

Entities Covered by Both Section 504 

and Title II of the ADA 

Compliance with this regulation does 

not necessarily ensure compliance with 

other statutes and their implementing 

regulations. For example, the 

Department is aware that DOJ is 

pursuing rulemaking regarding web and 

mobile application standards under title 

II of the ADA, and that some recipients 

under section 504 are also public 

entities covered by title II of the ADA. 

Because this regulation does not affect 

recipients’ obligations under other laws, 

recipients who are subject to both 

section 504 and title II of the ADA must 

comply with both regulations. 

• 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? 

Captions for Live-Audio Content 

WCAG 2.1 Level AA Success 

Criterion 1.2.4 requires synchronized 

captions for live-audio content. The 

intent of this success criterion is to 

‘‘enable people who are deaf or hard of 

hearing to watch real-time 

presentations. Captions provide the part 

of the content available via the audio 

track. Captions not only include 

dialogue, but also identify who is 

speaking and notate sound effects and 

other significant audio.’’ 303 Modern live 

captioning often can be created with the 

assistance of technology, such as by 

assigning captioners through Zoom or 

other conferencing software, which 

integrates captioning with live meetings. 

The Department proposes to apply the 

same compliance date to all of the 

WCAG 2.1 Level AA success criteria, 

including live-audio captioning 

requirements. As noted above, this 

would allow for three years after 

publication of the final rule for small 

recipients to comply, and two years for 

large recipients. The Department 

believes this approach is appropriate for 

several reasons. First, the Department 

understands that technology utilizing 

live-audio captioning has developed in 

recent years and continues to develop. 

In addition, the COVID–19 pandemic 

moved a significant number of formerly 

in-person appointments, meetings, 

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 to participate fully 

in health and human service programs 

and activities. And while the 

Department believes that the two and 

three-year periods described above 

afford a sufficient amount of time for 

recipients to allocate resources towards 

live-audio captioning, recipients have 

the option to demonstrate that 

compliance with any success criterion 

would result in a fundamental alteration 

in the nature of a program or activity or 

undue financial and administrative 

burdens. 

While at least one country that has 

adopted WCAG 2.0 Level AA as its 

standard for web accessibility has 

exempted entities from having to 

comply with the live-audio captioning 

requirements,304 the Department does 

not believe this approach is appropriate 

or necessary under the current 

circumstances, given the current state of 

live-audio captioning technology and 

the critical need for live-audio 

captioning for people with certain types 

of disabilities to participate more fully 

in civic life. Further, the Department 

believes that the state of live-audio 

captioning technology has advanced 

since 2016 when Canada made the 

decision to exempt entities from the 

live-audio captioning requirements.305

However, the Department is interested 

in learning more about compliance 

capabilities. Accordingly, the 

Department poses several questions for 

commenters about the development of 

live-audio captioning technology and 

the Department’s proposed requirement. 

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• Web Accessibility Question 15: 

Should the Department consider a 

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? 


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306See, e.g., 28 CFR 35.130(b)(7); 28 CFR 

35.160(b)(2); 45 CFR 84.4, now appearing in 84.68. 

§ 84.85 Exceptions 

This rule would require recipients to 

make their web content and mobile apps 

accessible. However, the Department 

believes it may be appropriate in some 

situations for certain content to be 

excepted from compliance with the 

technical requirements of this proposed 

rule. The Department is aware of a range 

of views on this issue, including that a 

section 504 regulation should not 

include any exceptions because the 

compliance limitations for undue 

financial and administrative burdens 

would protect recipients from any 

unrealistic requirements. On the other 

hand, the Department has also heard 

that exceptions are necessary to avoid 

substantial burdens on recipients. The 

Department also expects that such 

exceptions may help recipients avoid 

uncertainty about whether they need to 

ensure accessibility in situations where 

it might be extremely difficult. After 

consideration of the public’s views and 

after its independent assessment, the 

Department is proposing the following 

exceptions and poses questions for 

public feedback. The Department is 

interested in feedback about whether 

these proposed exceptions would 

relieve the burden on public entities, 

and also how these proposed exceptions 

would impact people with disabilities. 

The Department is proposing 

exceptions from coverage—subject to 

certain limitations—for the following 

seven categories of web content: (1) 

archived web content; (2) preexisting 

conventional electronic documents; (3) 

web content posted by third parties on 

a recipient’s website; (4) third-party web 

content linked from a recipient’s 

website; (5) course content on a 

recipient’s password-protected or 

otherwise secured website for admitted 

students enrolled in a specific course 

offered by a public postsecondary 

institution; (6) class or course content 

on a recipient’s password-protected or 

otherwise secured website for students 

enrolled, or parents of students 

enrolled, in a specific class or course at 

an elementary or secondary school; and 

(7) conventional electronic documents 

that are about a specific individual, 

their property, or their account and that 

are password-protected or otherwise 

secured. Additionally, there are certain 

limitations to these exceptions— 

situations in which the otherwise 

excepted content still must be made 

accessible. This proposed rule’s 

exceptions as well as the limitations on 

those exceptions are explained below. 

Archived Web Content 

Recipients’ websites can often include 

a significant amount of archived web 

content, which may contain information 

that is outdated, superfluous, or 

replicated elsewhere. The Department’s 

impression is that generally, this 

historic information is of interest to only 

a small segment of the general 

population. Still, the information may 

be of interest to some members of the 

public, including some individuals with 

disabilities, who are conducting 

research or are otherwise interested in 

these historic documents. The 

Department is aware and concerned, 

however, that recipients would need to 

expend considerable resources to 

retroactively make accessible the large 

quantity of historic or otherwise 

outdated information available on 

recipients’ websites. Thus, proposed 

§ 84.85(a) provides an exception from 

the web access requirements of § 84.84 

for web content that meets the 

definition of ‘‘archived web content’’ in 

§ 84.10. As mentioned previously, 

§ 84.10 defines ‘‘archived web content’’ 

as ‘‘web content that (1) is maintained 

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.’’ The archived web 

content exception allows recipients to 

keep and maintain historic web content, 

while utilizing their resources to make 

accessible the many up-to-date materials 

that people need to currently access 

public services or to participate in civic 

life. 

The Department notes that under this 

exception, recipients may not 

circumvent their accessibility 

obligations by merely labeling their web 

content as ‘‘archived’’ or by refusing to 

make accessible any content that is old. 

The exception focuses narrowly on 

content that satisfies all three of the 

criteria necessary to qualify as 

‘‘archived web content,’’ namely 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. If any one 

of those criteria is not met, the content 

does not qualify as ‘‘archived web 

content.’’ For example, if a recipient 

maintains content for any purpose other 

than reference, research, or 

recordkeeping—such as for purposes of 

offering a current program or activity— 

then that content would not fall within 

the exception, even if a recipient labeled 

it as ‘‘archived.’’ Similarly, a recipient 

would not be able to circumvent its 

accessibility obligations by rapidly 

moving newly posted content that is 

maintained for a purpose other than 

reference, research, or recordkeeping, or 

that the recipient continues to update, 

from a non-archived section of its 

website to an archived section. 

Though the Department proposes that 

archived web content be excepted from 

coverage under this rule, if an 

individual with a disability requests 

that certain archived web content be 

made accessible, recipients generally 

have an existing obligation to make 

these materials accessible in a timely 

manner and free of charge.306

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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? 

Preexisting Conventional Electronic 

Documents 

As discussed in the section-by-section 

analysis for § 84.5 above, the 

Department is proposing to add a 

definition for ‘‘conventional electronic 

documents.’’ Specifically, the proposed 

definition provides that the term 

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, spreadsheet file formats, and 

database file formats.’’ This list of 

conventional electronic documents is 

intended to be an exhaustive list of file 

formats, rather than an open-ended list. 

Proposed § 84.85(b) provides that 

‘‘conventional electronic documents 

created by or for a recipient that are 

available on a recipient’s website or 

mobile app before the date the recipient 

is required to comply with this rule’’ do 

not have to comply with the web 

accessibility requirements of § 84.84, 

‘‘unless such documents are currently 


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used by members of the public to apply 

for, gain access to, or participate in a 

recipient’s programs or activities.’’ 

The Department is aware that many 

websites of recipients contain 

conventional electronic documents. The 

Department expects that many of these 

conventional electronic documents are 

in PDF format, but many conventional 

electronic documents are formatted as 

word processor files (e.g., Microsoft 

Word files), presentation files (e.g., 

Apple Keynote or Microsoft PowerPoint 

files), spreadsheet files (e.g., Microsoft 

Excel files), and database files (e.g., 

FileMaker Pro or Microsoft Access files). 

Because of the presence of 

conventional electronic documents on 

recipient websites and mobile apps, and 

because of the difficulty of remediating 

some complex types of information and 

data to make them accessible after-thefact, the Department believes recipients 

should generally focus their personnel 

and financial resources on developing 

new conventional electronic documents 

that are accessible and remediating 

existing conventional electronic 

documents that are currently used by 

members of the public to access the 

recipient’s programs or activities. For 

example, if before the date a recipient is 

required to comply with this rule, the 

recipient’s website contains a series of 

out-of-date PDF reports on local 

COVID–19 statistics, those reports need 

not conform with WCAG 2.1. Similarly, 

if a recipient maintains decades’ worth 

of influenza infection reports in 

conventional electronic documents on 

the same web page as its current 

influenza infection report, the historic 

reports that were posted before the date 

the recipient was required to comply 

with this rule generally do not need to 

comply with WCAG 2.1. As the 

recipient posts new reports going 

forward, however, those reports must be 

accessible under WCAG 2.1. This 

approach is expected to reduce the 

burdens on recipients. 

This exception is subject to a 

limitation: it does not apply to any 

existing documents that are currently 

used by members of the public to apply 

for, access, or participate in the 

recipient’s programs or activities. In 

referencing ‘‘documents that are 

currently used,’’ the Department intends 

to cover documents that are used by 

members of the public at any given 

point in the future, not just at the 

moment in time when this rule is 

published. This limitation includes 

documents that provide instructions or 

guidance. For example, 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. 

The Department notes that a recipient 

may not rely on this ‘‘preexisting 

conventional electronic documents’’ 

exception to circumvent its accessibility 

obligations by, for example, converting 

all of its web content to conventional 

electronic document formats and 

posting those documents before the date 

the recipient must comply with this 

rule. As noted above, any documents 

that are currently used by members of 

the public to access the recipient’s 

programs or activities would need to be 

accessible as defined under this rule, 

even if those documents were posted 

before the date the recipient was 

required to comply with the rule. And 

if a recipient updates a conventional 

electronic document after the date the 

recipient must comply with this rule, 

that document would no longer qualify 

as ‘‘preexisting,’’ and would thus need 

to be made accessible as defined under 

this rule. 

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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? 

Third-Party Web Content 

Recipients’ websites can include or 

link to many different types of thirdparty content (i.e., content that is 

created by someone other than the 

recipient). For example, many 

recipients’ websites contain third-party 

web content like maps, calendars, 

weather forecasts, news feeds, 

scheduling tools, reservations systems, 

or payment systems. Third-party web 

content may also be posted by members 

of the public on a recipient’s online 

message board or other sections of their 

website that allow public comment. In 

addition to third-party content that is 

posted on the recipient’s own website, 

recipients frequently provide links to 

third-party content (i.e., links on the 

recipient’s website to content that has 

been posted on another website that 

does not belong to the recipient), 

including links to outside resources and 

information. 

The Department has heard a variety of 

views regarding whether or not 

recipients should be responsible for 

ensuring that third-party content on 

their websites and linked third-party 

content are accessible. Some maintain 

that recipients cannot be held 

accountable for third-party content on 

their websites, and without such an 

exception, recipients may have to 

remove the content altogether. Others 

have suggested that recipients should 

not be responsible for third-party 

content and linked content unless that 

content is necessary for individuals to 

access recipients’ programs or activities. 

The Department has also previously 

heard the view, however, that recipients 

should be responsible for third-party 

content because an entity’s reliance on 

inaccessible third-party content can 

prevent people with disabilities from 

having equal access to the recipient’s 

own programs and activities. 

Furthermore, boundaries between web 

content generated by a recipient and a 

third party are often difficult to discern. 

At this time, the Department is 

proposing the following two limited 

exceptions related to third-party content 

in § 84.85(c)–(d) and is posing questions 

for public comment: 

Section 84.85(c): Web Content Posted by 

a Third Party on a Recipient’s Website 

Proposed § 84.85(c) provides an 

exception to the web accessibility 

requirements of § 84.84 for ‘‘web 

content posted by a third party that is 

available on a recipient’s website.’’ 

The Department is proposing this 

exception in recognition of the fact that 

individuals other than a recipient’s 

agents sometimes post content on a 

recipient’s website. 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 

unregulated, 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 

or no control over the content posted. In 

some cases, a recipient’s website may 

include posts from third parties dating 

back many years, which are likely of 


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307 45 CFR 84.4, now appearing in 84.68, 84.52; 

28 CFR 35.130, 35.160. 

308See 45 CFR 84.4, now appearing in 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). 

309See 28 CFR 35.130(b)(1); see also 45 CFR 

84.4(b)(1), redesignated as 84.68(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). 

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 unrelated to a recipient’s programs 

and activities, there may be only limited 

benefit to requiring recipients to make 

this content accessible. Accordingly, the 

Department believes it is appropriate to 

create an exception for this content from 

complying with the technical standard 

articulated in this rule. However, while 

this exception applies to web content 

posted by third parties, it does not apply 

to the tools or platforms used to post 

third-party content on a recipient’s 

website such as message boards—these 

tools and platforms are subject to the 

rule’s technical standard. 

This exception applies to, among 

other third-party content, documents 

filed by third parties in administrative, 

judicial, and other legal proceedings 

that are available on a recipient’s 

website. This example helps to illustrate 

why the Department believes this 

exception is necessary. Many recipients 

have either implemented or are in the 

process of developing an automated 

process for electronic filing of 

documents in administrative, judicial, 

or legal proceedings in order to improve 

efficiency in the collection and 

management of these documents. Courts 

and other recipients receive high 

volumes of filings in these sorts of 

proceedings each year. The majority of 

these documents are submitted by third 

parties—such as a private attorney in a 

legal case or other members of the 

public—and often include appendices, 

exhibits, or other similar supplementary 

materials that may be difficult to make 

accessible. 

However, the Department notes that 

recipients have existing obligations 

under section 504 and title II of the 

ADA to ensure the accessibility of their 

programs and activities.307 Accordingly, 

for example, if a person with a disability 

is a party to a case and requests access 

to inaccessible filings submitted by a 

third party in a judicial proceeding that 

are available on a State court’s website, 

the court may need to timely provide 

those filings in an accessible format. 

Similarly, recipients may need to 

provide reasonable modifications to 

ensure that people with disabilities have 

access to their programs and activities. 

For example, if a hearing had been 

scheduled in the proceeding referenced 

above, the court might need to postpone 

the hearing if it did not provide the 

filings in an accessible format to the 

requestor in sufficient time for the 

requestor to review the documents 

before the scheduled hearing. 

Sometimes a recipient itself chooses 

to post content created by a third party 

on its website. This exception does not 

apply to content posted by the recipient 

itself, 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 by an outside technology 

company. To the extent a recipient 

chooses to rely on third-party content 

on its website, it must select third-party 

content that meets the requirements of 

§ 84.84. 

Moreover, a recipient may not 

delegate away its obligations under 

section 504.308 Accordingly, if a 

recipient relies on a contractor or 

another third party to post content on 

the entity’s behalf, the recipient retains 

responsibility for ensuring the 

accessibility of that content. 

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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? 

Section 84.85(d): Third-Party Content 

Linked From a Recipient’s Website 

Proposed § 84.85(d) provides that a 

recipient is not responsible for the 

accessibility of third-party web content 

linked from the recipient’s website 

‘‘unless the recipient uses the thirdparty web content to allow members of 

the public to participate in or benefit 

from the recipient’s programs or 

activities.’’ Many recipients’ websites 

include links to other websites that 

contain information or resources in the 

community offered by third parties that 

are not affiliated with the recipient. 

Clicking on one of these links will take 

an individual away from the recipient’s 

website to the website of a third party. 

Typically, the recipient has no control 

over or responsibility for the web 

content or the operation of the third 

party’s website. Accordingly, the 

recipient has no obligation to make the 

content on a third party’s website 

accessible. For example, if for purely 

informational or reference purposes, a 

university posts a series of links to 

restaurants and tourist attractions in the 

surrounding area, the recipient is not 

responsible for ensuring the websites of 

those restaurants and tourist attractions 

are accessible. 

Proposed § 84.85(d) generally allows 

recipients to provide relevant links to 

third-party web content that may be 

helpful without making them 

responsible for the third party’s web 

content. However, because the 

Department’s section 504 regulation 

prohibits discrimination in the 

provision of any aid, benefit, or service 

provided by recipients directly or 

through contractual, licensing, or other 

arrangements, if the recipient uses the 

linked third-party web content to allow 

members of the public to participate in 

or benefit from the recipient’s programs 

or activities, then the recipient must 

ensure it links only to third-party web 

content that complies with the web 

accessibility requirements of § 84.84. 

This approach is consistent with 

recipients’ obligation to make all of their 

programs or activities accessible to the 

public, including those they provide 

through third parties.309 For example, a 

recipient that links to online payment 

processing websites offered by third 

parties to accept the payment of fees 

must ensure that the third-party web 

content it links to in order for members 

of the public to pay for the recipient’s 

programs or activities complies with the 

web accessibility requirements of 

§ 84.84. In other words, if a recipient 

links to a website for a third-party 

payment service that the recipient 

allows the public to use to pay fees, the 

recipient would be using that thirdparty website to allow members of the 

public to participate in its program, and 

the linked third-party website would 


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310 In this document, we refer to web content that 

is created by someone other than a public entity as 

‘‘third-party web content.’’ We note that we do not 

use ‘‘third-party’’ to describe mobile apps here to 

avoid confusion. It is our understanding that the 

term ‘‘third-party mobile app’’ appears to have a 

different meaning in the technology industry and 

some understand ‘‘a third-party app’’ as an 

application that is provided by a vendor other than 

the manufacturer of the device or operating system 

provider. See Alice Musyoka, Third-Party Apps, 

Webopedia (Aug. 4, 2022) https://

www.webopedia.com/definitions/third-party-apps/ 

[https://perma.cc/SBW3-RRGN]. See Rene ́e Lynn 

Midrack, What is a Third Party App?, Lifewire 

(updated Sept. 12, 2021), https://www.lifewire.com/ 

what-is-a-third-party-app-4154068 [https://

perma.cc/F7X7-6K59]. 

311See What You Can Do With MyChart, https:// 

www.mychart.org/Features (last visited June 27, 

2023). 

need to comply with this rule. 

Otherwise, the recipient’s program 

would not be equally accessible to 

people with disabilities. Similarly, if a 

recipient links to a third-party website 

that processes applications for benefits 

or requests to sign up to participate in 

classes or attend programs the recipient 

offers, the recipient is using the third 

party’s linked web content to allow 

members of the public to participate in 

the recipient’s programs or activities, 

and the recipient must thus ensure that 

it links to only third-party web content 

that complies with the requirements of 

§ 84.84. 

The Department believes this 

approach strikes the appropriate balance 

between acknowledging that recipients 

may not have the ability to make third 

parties’ websites accessible and 

recognizing that recipients do have the 

ability to choose to use only third-party 

content that is accessible when that 

content is used to allow members of the 

public to participate in or benefit from 

the recipient’s programs or activities. 

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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 

entities’ 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? 

External Mobile Apps 

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 entity’s 

programs or activities. We will refer to 

these mobile apps as ‘‘external mobile 

apps.’’ 310 One example of an external 

mobile app is the ‘‘MyChart’’ app, a 

private company’s website and app that 

some recipients use to allow patients to 

view their medications, test results, 

appointments, and bills, and interact 

with their health care providers.311

At this time, the Department is not 

proposing to create an exception for 

recipients’ use of external mobile apps 

(e.g., mobile apps operated by a third 

party) from proposed § 84.84. We expect 

that recipients are using these mobile 

apps mostly to provide access to the 

entities’ programs and activities, such 

that excepting them would not be 

appropriate. 

Accordingly, the Department is 

seeking comment and additional 

information on external mobile apps 

that recipients use to offer their 

programs and activities. Please provide 

as much detail as possible and any 

applicable data, suggested alternative 

approaches or requirements, arguments, 

explanations, and examples in your 

responses to the following questions. 

• 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 § 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? 

Password-Protected Class or Course 

Content of Educational Institutions 

Proposed § 84.85(e) and (f) provide 

exceptions for educational institutions’ 

password-protected class or course 

content where there is no student with 

a disability enrolled in the class or 

course (or, in the elementary and 

secondary school context, where there is 

no student enrolled in the class or 

course who has a parent with a 

disability) who needs the passwordprotected content to be made accessible. 

Educational institutions, like many 

other recipients, use their websites to 

provide a variety of programs and 

activities to members of the public. 

Many of the programs and activities on 

these websites are available to anyone. 

The content on these websites can 

include such general information as the 

academic calendar, enrollment process, 

admission requirements, school lunch 

menus, school policies and procedures, 

and contact information. Under the 

proposed regulation, all such programs 

or activities available to the public on 

the websites of public educational 

institutions must comply with the 

requirements of § 84.84 unless the 

content is subject to a proposed 

exception. 

In addition to the information 

available to the general public on the 

websites of educational institutions, the 

websites of many schools, colleges, and 

universities also make certain programs 

and activities available to a discrete and 

targeted audience of individuals (e.g., 

students taking particular classes or 

courses or, in the elementary or 

secondary school context, parents of 

students enrolled in a particular class or 

course). This information is often 

provided using a Learning Management 

System (LMS) or similar platform that 

can provide secure online access and 

allow the exchange of educational and 

administrative information in real time. 

LMSs allow educational institutions and 

their faculty and staff to exchange and 

share information with students and 

parents about courses and students’ 

progress. For example, faculty and staff 

can create and collect assignments, post 

grades, provide real-time feedback, and 

share subject-specific media, 

documents, and other resources to 

supplement and enrich the curriculum. 

Parents can track their children’s 

attendance, assignments, grades, and 

upcoming class events. To access the 

information available on these 

platforms, students (and parents in the 

elementary and secondary school 

context) generally must obtain a 

password, login credentials, or some 

equivalent from the educational 

institution. The discrete population that 

has access to this content may not 

always include a person with a 

disability. For example, a student who 

is blind may not have enrolled in a 

psychology course, or a parent who is 

deaf may not have a child enrolled in 

a particular ninth-grade world history 

class. 

The Department’s regulatory proposal 

would require that the LMS platforms 

that recipient elementary and secondary 

schools, colleges, and universities use 

comply with § 84.84. However, subject 

to limitations, the Department is 

proposing an exception for passwordprotected class or course content. Thus, 

while the LMS platform would need to 

be accessible, class or course content 

(such as syllabi and assigned readings) 

posted on the password-protected LMS 


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312The Department notes that the term ‘‘parent’’ 

as used throughout proposed § 84.85(f) is intended 

to include biological, adoptive, step-, or foster 

parents, legal guardians, or other individuals 

recognized under Federal and state law as having 

parental rights. 

platform would not need to be, except 

in specified circumstances. Specifically, 

the content available on passwordprotected websites for specific classes or 

courses would generally be excepted 

from the requirements of proposed 

§ 84.84 unless a student is enrolled in 

that particular class or course and the 

student (or the parent 312 in the 

elementary and secondary school 

context) would be unable, because of a 

disability, to access the content posted 

on the password-protected website for 

that class or course. Thus, once a 

student with a disability (or a student in 

an elementary or secondary school with 

a parent with a disability) is enrolled in 

a particular class or course, the content 

available on the password-protected 

website for the specific class or course 

would need to be made accessible in 

accordance with certain compliance 

dates discussed below. This may 

include scenarios in which a student 

with a disability (or, in the elementary 

and secondary school context, a student 

whose parent has a disability) 

preregisters, enrolls, or transfers into a 

class or course or acquires a disability 

during the term, or when a school 

otherwise identifies a student in a class 

or course (or their parent in the 

elementary and secondary school 

context) as having a disability. The 

educational institution would generally 

be required to make the course content 

for that class or course fully compliant 

with all WCAG 2.1 Level AA success 

criteria, not merely the criteria related to 

that student or parent’s disability. This 

will ensure that course content becomes 

more accessible to all students over 

time. In addition, the Department 

expects that it will be more 

straightforward and cost-effective for 

recipients to comply with WCAG 2.1 

Level AA as a whole, rather than 

attempting to identify and isolate the 

WCAG 2.1 success criteria that relate to 

a specific student, and then repeating 

that process for a subsequent student 

with a different disability. 

The Department proposes this 

exception for class and course content 

based on its understanding that it would 

be burdensome to require educational 

institutions to make all of the 

documents, videos, and other content 

that many instructors upload and assign 

via LMS websites accessible. For 

instance, instructors may scan hardcopy documents and then upload them 

to LMS sites as conventional electronic 

documents. In some instances, these 

documents comprise multiple chapters 

from books and may be hundreds of 

pages long. Similarly, instructors may 

upload videos or other multimedia 

content for students to review. The 

Department believes that making all of 

this content accessible when students 

with disabilities (or their parents in the 

elementary and secondary context) are 

not enrolled in the course may be 

onerous for educational institutions, but 

the Department also understands that it 

is critical for students and parents with 

disabilities to have access to needed 

course content. 

The Department believes its proposal 

provides a balanced approach by 

ensuring access to students with 

disabilities (or, in primary and 

secondary education settings, parents 

with disabilities) enrolled in the 

educational institution, while 

recognizing that there are large amounts 

of class or course content that may not 

immediately need to be accessed by 

individuals with disabilities because 

they have not enrolled in a particular 

class or course. 

By way of analogy and as an example, 

under the Department’s existing section 

504 regulations, educational institutions 

are not required to proactively provide 

accessible course handouts to all 

students in a course, but they are 

required to do so for a student with a 

disability who needs them to access the 

course content. The Department 

envisions the requirements proposed 

here as an online analogue: while 

educational institutions are not required 

to proactively make all passwordprotected course handouts accessible, 

for example, once an institution knows 

that a student with a disability is 

enrolled in a course and, accordingly, 

needs the content to be made accessible, 

the institution must do so. The 

institution must also comply with its 

obligations to provide accessible course 

content under all other applicable laws, 

including the IDEA. 

The Department appreciates that some 

educational institutions may find it 

preferable or more effective to make all 

class or course content accessible from 

the outset without waiting for a student 

with a disability (or, in the elementary 

and secondary school context, a student 

with a parent with a disability) to enroll 

in a particular class or course, and 

nothing in this rule would prevent 

educational institutions from taking that 

approach. Even if educational 

institutions do not take this approach, 

the Department expects that those 

institutions will likely need to take 

steps in advance so that they are 

prepared to make all class or course 

content for a particular course 

accessible within the required time 

frames discussed below when there is 

an enrolled student with a disability (or, 

in the elementary and secondary school 

context, an enrolled student with a 

parent with a disability) who needs 

access to that content. 

Because the nature, operation, and 

structure of elementary and secondary 

schools are different from those of 

public colleges and universities, the 

proposed regulation sets forth separate 

requirements for the two types of 

institutions. 

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following question. 

• 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? 

Postsecondary Institutions: PasswordProtected Web Content 

In proposed § 84.85(e), the 

Department is considering an exception 

to the requirements proposed in § 84.84 

for public postsecondary institutions, 

subject to two limitations. This 

exception would provide that ‘‘course 

content available on a recipient’s 

password-protected or otherwise 

secured website for admitted students 

enrolled in a specific course offered by 

a public postsecondary institution’’ 

would not need to comply with the web 

accessibility requirements of § 84.84 

unless one of the two limitations 

described below applies. As used in this 

context, ‘‘admitted students’’ refers to 

students who have applied to, been 

accepted by, and are enrolled in a 

particular educational institution. These 

students include both matriculated 

students (i.e., students seeking a degree) 

and non-matriculated students (i.e., 

continuing education students or nondegree-seeking students). As noted 

above, this exception applies only to 

password-protected or otherwise 

secured content. Content may be 

otherwise secured if it requires some 

process of authentication or login to 

access the content. 

The exception is not intended to 

apply to password-protected content for 

classes or courses that are made 

available to the general public, or a 

subset thereof, without enrolling at a 

particular educational institution. Such 

classes or courses generally only require 


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limited, if any, registration to 

participate. These types of classes or 

courses may sometimes be referred to as 

Massive Open Online Courses (MOOCs). 

Because access to the content on these 

password-protected websites is not 

limited to a discrete student population 

within an educational institution, but is 

instead widely available to the general 

public—sometimes without limits as to 

enrollment—any individual, including 

one with a disability, may enroll or 

participate at almost any time. Under 

these circumstances, the recipient must 

make such class or course content 

accessible from the outset of the class or 

course regardless of whether a student 

with a disability is known to be 

participating. The Department is 

interested in the public’s feedback on 

this exception, and in particular the 

impact it may have on recipients’ 

continued use of MOOCs. 

The phrase ‘‘enrolled in a specific 

course’’ as used in § 84.85(f) limits the 

exception to password-protected web 

content for a particular course, at a 

particular time, during a particular term. 

For example, if a university offers a 20th 

Century Irish Literature course at 10 

a.m. that meets on Mondays, 

Wednesdays, and Fridays for the fall 

semester of the 2029–2030 academic 

year, the exception would apply to the 

password-protected web content for that 

course, subject to the limitations 

discussed below. 

The proposed exception in § 84.85(e) 

would not apply to non-course content 

on the recipient’s password-protected 

website that is generally available to all 

admitted students. For example, content 

available on the recipient’s passwordprotected website that is available to all 

admitted students, such as forms for 

registering for class, applications for 

meal plans or housing, academic 

calendars, and announcements 

generally made available to all students 

enrolled in the postsecondary 

institution would all be required to 

comply with § 84.84. In addition, if a 

postsecondary institution makes course 

content for specific courses available to 

all admitted students on a passwordprotected website, regardless of whether 

students had enrolled in that specific 

course, the exception would not apply, 

even if such content was only made 

available for a limited time, such as 

within a set time frame for course 

shopping. 

Sections 84.85(e)(1)–(2): Limitations to 

the Exception for Password-Protected 

Web Content for Specific Courses 

As noted previously, there are two 

important limitations to the general 

exception for course content on 

password-protected websites of 

postsecondary institutions in proposed 

§ 84.85(e); both limitations apply to 

situations in which an admitted student 

with a disability is enrolled in a 

particular course at a postsecondary 

institution and the student, because of 

a disability, would be unable to access 

the content on the password-protected 

website for the specific course. The 

phrase ‘‘the student, because of a 

disability, would be unable to access’’ is 

meant to make clear that these 

limitations are not triggered merely by 

the enrollment of a student with a 

disability, but instead they are triggered 

by the enrollment of a student whose 

disability would make them unable to 

access the content on the passwordprotected course website. These 

limitations would also be triggered by 

the development or identification of 

such a disability while a student is 

enrolled, or the realization that a 

student’s disability makes them unable 

to access the course content during the 

time that they are enrolled. The phrase 

‘‘unable to access’’ does not necessarily 

mean a student has no access at all. 

Instead, the phrase ‘‘unable to access’’ is 

intended to cover situations in which a 

student’s disability would limit or 

prevent their ability to equally access 

the relevant content. 

The provisions set forth in the 

limitations to the exception are 

consistent with longstanding obligations 

of recipients under section 504 and title 

II of the ADA. Recipients are already 

required to make appropriate reasonable 

modifications and ensure effective 

communication, including by providing 

the necessary auxiliary aids and services 

to students with disabilities. It is the 

educational institution, not the student, 

that is responsible for ensuring that it is 

meeting these obligations. Such 

institutions, therefore, should be 

proactive in addressing the access needs 

of admitted students with disabilities, 

including those who would be unable to 

access inaccessible course content on 

the web. This also means that when an 

institution knows that a student with a 

disability is unable to access 

inaccessible content, the institution 

should not expect or require that the 

student first attempt to access the 

information and be unable to do so 

before the institution’s obligation to 

make the content accessible arises. 

Correspondingly, when an institution 

has notice that such a student is 

enrolled in a course, all of the content 

available on the password-protected 

website for that course must be made 

accessible in compliance with the 

accessibility requirements of proposed 

§ 84.84. The difference between the two 

limitations to the exception to § 84.85(e) 

is the date that triggers compliance. The 

triggering event is based on when the 

institution knew, or should have 

known, that such a student with a 

disability would be enrolled in a 

specific course and would be unable to 

access the content available on the 

password-protected website. 

The application of the limitation in 

proposed § 84.85(e)(1) and (2), 

discussed in detail below, is contingent 

upon the institution having notice both 

that a student with a disability is 

enrolled in a specific course and that 

the student cannot access the course 

content because of their disability. Once 

an institution is on notice that a student 

with a disability is enrolled in a specific 

course and that the student’s disability 

would render the student unable to 

access the content available on the 

password-protected website for the 

specific course, the password-protected 

web content for that course must be 

made accessible within the time frames 

set forth in proposed § 84.85(e)(1) and 

(2), which are described in greater detail 

below. 

The first proposed limitation to the 

exception for postsecondary 

institutions, proposed § 84.85(e)(1), 

would require that ‘‘if a recipient is on 

notice that an admitted student with a 

disability is pre-registered in a specific 

course offered by a postsecondary 

institution and that the student, because 

of a disability, would be unable to 

access the content available on the 

recipient’s password-protected or 

otherwise secured website for the 

specific course,’’ then ‘‘all content 

available on the recipient’s passwordprotected or otherwise secured website 

for the specific course must comply 

with the requirements of § 84.84 by the 

date the academic term begins for that 

course offering. New content added 

throughout the term for the course must 

also comply with the requirements of 

§ 84.84 at the time it is added to the 

website.’’ Students may register for 

classes and make accessibility requests 

ahead of the start of the term—often 

during the previous term. The 

institution therefore knows, or should 

know, that a student with a disability 

has registered for a particular course or 

notified the school that content must be 

made accessible for a particular course. 

This provision would ensure that 

students with disabilities have timely 

access to and equal opportunity to 

benefit from content available on a 

password-protected website for their 

particular courses. 

The second proposed limitation to the 

exception for postsecondary 

institutions, § 84.85(e)(2), applies to 


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situations in which ‘‘a recipient is on 

notice that an admitted student with a 

disability is enrolled in a specific course 

offered by a postsecondary institution 

after the start of the academic term, and 

the student, because of a disability, 

would be unable to access the content 

available on the recipient’s passwordprotected or otherwise secured website 

for the specific course.’’ In this instance, 

unlike § 84.85(e)(1), the postsecondary 

institution is not on notice until after 

the start of the academic term that a 

student is enrolled in a particular course 

and that the student, because of a 

disability, would be unable to access the 

content on the password-protected 

course website. In such circumstances, 

all content available on the recipient’s 

password-protected website for the 

specific course must comply with the 

requirements of § 84.84 within five 

business days of such notice. This 

second limitation would apply to 

situations in which students have not 

pre-registered in a class, such as when 

students enroll in a class during the 

add/drop period, or where waitlisted or 

transfer students enroll in a class at the 

start of, or during, the academic term. 

This second limitation to the exception 

for postsecondary institutions would 

also apply to situations in which the 

institution was not on notice that the 

enrolled student had a disability and 

would be unable to access online course 

content until after the academic term 

began—because, for example, the 

student newly enrolled at the institution 

or was recently diagnosed with a 

disability. 

In proposing the five-day remediation 

requirement in this limitation, the 

Department is attempting to strike the 

appropriate balance between providing 

postsecondary institutions with a 

reasonable opportunity to make the 

content on the password-protected or 

otherwise secured website accessible 

and providing individuals with 

disabilities full and timely access to this 

information that has been made 

available to all other students in the 

course. The Department believes five 

days provides a reasonable opportunity 

to make the relevant content accessible 

in most cases, subject to the general 

limitations under proposed § 84.88. 

However, the Department is interested 

in the public’s feedback and data on 

whether this remediation requirement 

provides a reasonable opportunity to 

make the relevant content accessible, 

and whether a shorter or longer period 

would be more appropriate in most 

cases. 

If, for example, a college offers a 

specific fall semester course, a student 

with a disability pre-registers for it and, 

because of disability, that student would 

be unable to access the content available 

on the password-protected website for 

that course, all content available on the 

institution’s password-protected website 

for that specific course must comply 

with the requirements of § 84.84 by the 

date the academic semester begins for 

the fall semester (according to the first 

limitation). If, instead, that same student 

does not enroll in that particular course 

until two days after the start of the fall 

semester, all content available on the 

institution’s password-protected or 

otherwise secured website for that 

specific course must comply with the 

requirements of § 84.84 within five 

business days of notice that a student 

with a disability is enrolled in that 

particular course and, because of 

disability, would be unable to access the 

content (according to the second 

limitation). 

The exception applies to course 

content such as conventional electronic 

documents, multimedia content, or 

other course material ‘‘available’’ on a 

recipient’s password-protected or 

otherwise secured website. As such, the 

two limitations apply when that content 

is made ‘‘available’’ to students with 

disabilities enrolled in a specific course 

who are unable to access course content. 

Although a professor may load all of 

their course content on the passwordprotected website at one time, they may 

also stagger the release of particular 

content to their students at various 

points in time during the term. It is 

when this content is made available to 

students that it must be made accessible 

in compliance with proposed § 84.84. 

The two limitations to the exception 

for password-protected course content 

state that the limitations apply 

whenever ‘‘the student, because of a 

disability, would be unable to access the 

content available on the recipient’s 

password-protected website for the 

specific course.’’ Pursuant to 

longstanding obligations of recipients 

under section 504, the postsecondary 

institution must continue to take other 

steps necessary to timely make 

inaccessible course content accessible to 

an admitted student with a disability 

during the five-day period proposed in 

the second limitation, unless doing so 

would result in a fundamental alteration 

or undue financial and administrative 

burdens. This could include timely 

providing alternative formats, a reader, 

or a notetaker for the student with a 

disability, or providing other auxiliary 

aids and services that enable the student 

with a disability to participate in and 

benefit from the programs and activities 

of the recipient while the recipient is 

making the course content on the 

password-protected website accessible. 

Once the obligation is triggered to 

make password-protected web content 

accessible for a specific course, the 

obligation is ongoing for the duration of 

the course (i.e., the obligation is not 

limited to course content available at 

the beginning of the term). Rather, all 

web content newly added throughout 

the remainder of the student’s 

enrollment in the course must also be 

accessible at the time it is made 

available to students. Furthermore, once 

a postsecondary institution makes 

conventional electronic documents, 

multimedia content, or other course 

material accessible in accordance with 

the requirements of § 84.85(e)(1) or (2), 

the institution must maintain the 

accessibility of that specific content as 

long as that content is available to 

students on the password-protected 

course website, in compliance with the 

general accessibility requirement set 

forth in proposed § 84.84. However, new 

content added later, when there is no 

longer a student with a disability who 

is unable to access inaccessible web 

content enrolled in that specific course, 

would not need to be made accessible 

because that course-specific web 

content would once again be subject to 

the exception, unless and until another 

student with a disability is enrolled in 

that course. 

With regard to third-party content 

linked to from a password-protected or 

otherwise secured website for a specific 

course, the exception and limitations set 

forth in proposed § 84.85(d) apply to 

this content, even when a limitation 

under proposed § 84.85(e)(1) or (2) has 

been triggered requiring all the content 

available to students on a passwordprotected website for a specific course 

to be accessible. Accordingly, thirdparty web content to which a recipient 

provides links for informational or 

resource purposes is not required to be 

accessible; however, if the 

postsecondary institution uses the thirdparty web content to allow members of 

the public to participate in or benefit 

from the institution’s programs or 

activities, then the postsecondary 

institution must ensure it links to thirdparty web content that complies with 

the web accessibility requirements of 

§ 84.84. For example, if a postsecondary 

institution requires students to use a 

third-party website it links to on its 

password-protected course website to 

complete coursework, then the thirdparty web content must be accessible. 

The Department believes that this 

approach strikes a proper balance of 

providing necessary and timely access 

to course content, while not imposing 


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313The Department notes that the term ‘‘parent’’ 

as used throughout § 84.85(f) is intended to include 

biological, adoptive, step, or foster parents; legal 

guardians; or other individuals recognized under 

Federal or State law as having parental rights. 

burdens where web content is currently 

only utilized by a population of 

students without relevant disabilities, 

but it welcomes public feedback on 

whether alternative approaches might 

strike a more appropriate balance. 

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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 passwordprotected course content? 

• Web Accessibility Question 33: The 

proposed exception and its limitations 

are confined to content on a passwordprotected 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 passwordprotected 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 § 84.85(e) and (e)(1)–(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? 

Elementary and Secondary Schools: 

Password-Protected Web Content 

In proposed § 84.85(f), the Department 

is considering an exception to the 

requirements proposed in § 84.84 for 

elementary and secondary schools that 

would provide, subject to four 

limitations, that ‘‘class- or course 

content available on a recipient’s 

password-protected or otherwise 

secured website for students enrolled, or 

parents of students enrolled, in a 

specific class or course at an elementary 

or secondary school’’ would not need to 

comply with the web accessibility 

requirements of § 84.84. 

Because parents of students in 

elementary and secondary schools have 

greater rights, roles, and responsibilities 

with regard to their children and their 

children’s education than in the 

postsecondary education setting, and 

because these parents typically interact 

with such schools much more often and 

in much greater depth and detail, 

parents are expressly included in both 

the general exception for passwordprotected web content in § 84.85(f) and 

its limitations.313 Parents use passwordprotected websites to access progress 

reports and grades, track homework and 

long-term project assignments, and 

interact regularly with their children’s 

teachers and administrators. 

Proposed exception § 84.85(f) 

provides that ‘‘class or course content 

available on a recipient’s passwordprotected or otherwise secured website 

for students enrolled, or parents of 

students enrolled, in a specific class or 

course offered by an elementary or 

secondary school’’ does not need to 

comply with the accessibility 

requirements of § 84.84 unless and until 

a student is enrolled in that particular 

class or course and either the student or 

the parent would be unable, because of 

a disability, to access the content 

available on the password-protected 

website. As used in this context, 

‘‘enrolled . . . in a specific class or 

course’’ limits the exception to 

password-protected class or course 

content for a particular class or course 

during a particular academic term. For 

example, content on a passwordprotected website for students, and 

parents of students, in a specific fifthgrade class would not need to be made 

accessible unless a student enrolled, or 

the parent of a student enrolled, in the 

class that term would be unable, 

because of a disability, to access the 

content on the password-protected 

website. 

The proposed exception in § 84.85(f) 

is not intended to apply to passwordprotected content that is available to all 

students or their parents in an 

elementary or secondary school. 

Content on password-protected websites 

that is not limited to students enrolled, 

or parents of students enrolled, in a 

specific class or course, but instead is 

available to all students or their parents 

at the elementary or secondary school is 

not subject to the exception. For 

example, a school calendar available on 

a password-protected website to which 

all students or parents at a particular 

elementary school are given a password 

would not be subject to the exception 

for password-protected web content for 

a specific class or course. It would, 

therefore, need to comply with the 

requirements of proposed § 84.84. 

Section 84.85(f)(1)–(4): Limitations to 

the Exception for Password-Protected 

Class or Course Content 

There are four critical limitations to 

the general exception in § 84.85(f) for 

elementary and secondary schools’ class 

or course content. These limitations are 

identical to those discussed above in the 

postsecondary context, except that they 

arise not only when a school is on 

notice that a student with a disability is 

enrolled in a particular class or course 

and cannot access content on the class 

or course’s password-protected website 

because of their disability, but also 

when the same situation arises for a 

parent with a disability. The discussion 

above of the limitations in the 

postsecondary context applies with 

equal force here. A shorter discussion of 

the limitations in the elementary and 

secondary context follows. However, the 

Department acknowledges that there are 

existing legal frameworks specific to the 

public elementary and secondary 

education context which are described 

further in this section. 

The first limitation, in proposed 

§ 84.85(f)(1), addresses situations in 

which the recipient is on notice before 

the beginning of the academic term that 


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314See 45 CFR 84.4, now appearing in 84.68. 

315See 20 U.S.C. 1412; 34 CFR 104.32–104.33. 

a student with a disability is preregistered in a specific class or course 

offered by an elementary or secondary 

school, and the student, because of a 

disability, would be unable to access the 

content available on the recipient’s 

password-protected or otherwise 

secured website for the specific class or 

course. In such circumstances, all 

content available on the recipient’s 

password-protected website for the 

specific class or course must comply 

with the requirements of § 84.84 by the 

date the term begins for that class or 

course. New content added throughout 

the term for the class or course must 

also comply with the requirements of 

proposed § 84.84 at the time it is added 

to the website. 

Similarly, the second limitation, 

proposed § 84.85(f)(2), addresses 

situations in which the pre-registered 

student’s parent has a disability. Section 

84.85(f)(2) applies when the recipient is 

on notice that a student is pre-registered 

in an elementary or secondary school’s 

class or course, and that the student’s 

parent needs the content to be 

accessible because of a disability that 

inhibits access to the content available 

on the password-protected website for 

the specific class or course. In such 

circumstances, all content available on 

the recipient’s password-protected 

website for the specific class or course 

must comply with the requirements of 

§ 84.84 by the date the school term 

begins for that class or course. New 

content added throughout the term for 

the class or course must also comply 

with the requirements of proposed 

§ 84.84 at the time it is added to the 

website. 

The third and fourth limitations to the 

exception for class or course content on 

password-protected websites for 

particular classes or courses at 

elementary and secondary schools are 

similar to the first and second 

limitations, but have different triggering 

events. These limitations apply to 

situations in which a student is enrolled 

in an elementary or secondary school’s 

class or course after the term begins, or 

when a school is otherwise not on 

notice until after the term begins that 

there is a student or parent with a 

disability who is unable to access class 

or course content because of their 

disability. The third limitation, in 

proposed § 84.85(f)(3) would apply once 

a recipient is on notice that ‘‘a student 

with a disability is enrolled in an 

elementary or secondary school’s class 

or course after the term begins, and the 

student, because of a disability, would 

be unable to access the content available 

on the recipient’s password-protected or 

otherwise secured website for the 

specific class or course.’’ In such 

circumstances, all content available on 

the recipient’s password-protected or 

otherwise secured website for the 

specific class or course must comply 

with the requirements of § 84.84 within 

five business days of such notice. New 

content added throughout the term for 

the class or course must also comply 

with the requirements of proposed 

§ 84.84 at the time it is added to the 

website. 

Proposed § 84.85(f)(4), the fourth 

limitation, applies the same triggering 

event as in § 84.85(f)(3) to situations in 

which the student’s parent has a 

disability. Proposed § 84.85(f)(4) would 

apply once a recipient is on notice that 

a student is enrolled in an elementary 

or secondary school’s class or course 

after the term begins, and that the 

student’s parent needs the content to be 

accessible because of a disability that 

would inhibit access to the content 

available on the recipient’s passwordprotected website for the specific class 

or course. In such circumstances, all 

content available on the recipient’s 

password-protected or otherwise 

secured website for the specific class or 

course must comply with the 

requirements of § 84.84 within five 

business days of such notice. New 

content added throughout the term for 

the class or course must also comply 

with the requirements of proposed 

§ 84.84 at the time it is added to the 

website. 

The procedures for enrollment in the 

elementary or secondary school context 

likely vary from the postsecondary 

context. Unlike in postsecondary 

institutions, elementary and secondary 

schools generally have more autonomy 

and authority regarding student 

placement in a particular class or 

course. The student or parent generally 

does not control placement in a 

particular class or course. To the extent 

a parent or student has such autonomy 

or authority, the application of the 

limitations in § 84.85(f)(1) through (4) is 

contingent on whether the elementary 

or secondary school knows, or should 

know, that a student with a disability is 

enrolled, or a parent with a disability 

has a child enrolled, in a particular class 

or course, and that the student or parent 

would be unable to access the class or 

course content because of their 

disability. 

Regardless of what process a school 

follows for notification of enrollment, 

accessibility obligations for passwordprotected class or course content come 

into effect once a school is on notice 

that materials need to be made 

accessible under these provisions. For 

example, some schools that allow 

students to self-select the class or course 

in which they enroll may require 

students with disabilities to notify their 

guidance counselor or the special 

education coordinator each time they 

have enrolled in a class or course. With 

respect to parents, some schools may 

have a form that parents fill out as part 

of the process for enrolling a student in 

a school, or in a particular class or 

course in that school, indicating that 

they (the parent) are an individual with 

a disability who, because of their 

disability, needs auxiliary aids or 

services. Other schools may publicize 

the schools’ responsibility to make class 

or course content accessible to parents 

with disabilities and explain the process 

for informing the school that they 

cannot access inaccessible websites. 

Under this rule, regardless of the 

process a school follows, once the 

elementary or secondary school is on 

notice, the password-protected class or 

course content for that class or course 

must be made accessible within the time 

frames set forth in § 84.85(f)(1) through 

(4). We note that section 504 would 

prohibit limiting assignment of students 

with disabilities only to classes for 

which the content has already been 

made accessible.314

The Department emphasizes that in 

the public elementary and secondary 

school context a variety of Federal laws 

include robust protections for students 

with disabilities, and this rule is 

intended to build on, but not to 

supplant those protections for students 

with disabilities. Public schools that 

receive Federal financial assistance 

already must ensure they comply with 

obligations under other statutes such as 

the IDEA and section 504 of the 

Rehabilitation Act, including the 

Department of Education’s regulations 

implementing those statutes. The IDEA 

and section 504 already include 

affirmative obligations that covered 

schools work to identify children with 

disabilities, regardless of whether the 

schools receive notice from a parent that 

a student has a disability, and provide 

a Free Appropriate Public Education 

(FAPE).315 The Department 

acknowledges that educational entities 

likely already employ procedures under 

those frameworks to identify children 

with disabilities and assess their 

educational needs. Under the IDEA and 

section 504, schools have obligations to 

identify students with the relevant 

disabilities that would trigger the 

limitations in proposed § 84.85(f)(1) 

through (4). The proposed rule would 

add to and would not supplant the 


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already robust framework for identifying 

children with disabilities and making 

materials accessible. The language used 

in the educational exceptions and their 

limitations is not intended to replace or 

conflict with those existing procedures. 

In other words, regardless of the means 

by which schools identify students with 

the relevant disabilities here, including 

procedures developed to comply with 

the IDEA and section 504 regulations, 

once a school is on notice that either the 

student or the parent has a disability 

and requires access because of that 

disability, the limitation is triggered. 

Further, schools should not alter their 

existing practices to wait for notice 

because of this rule—this rule does not 

modify existing requirements that 

schools must follow under other statutes 

such as the IDEA. 

Federal and state laws may have a 

process for students who are newly 

enrolled in a school and those who are 

returning to have their educational 

program or plan reviewed and revised 

annually. This generally would include 

a determination of the special 

education, related services, 

supplementary aids and services, 

program modifications, and supports 

from school personnel that the student 

needs. However, once the school is on 

notice that the student has a disability 

and requires access because of the 

disability, those processes and 

procedures cannot be used to delay or 

avoid compliance with the time frames 

set forth in § 84.85(f)(1) through (4). For 

example, if a school knows that a 

student who is blind is enrolled at the 

school for the first time over the 

summer, the school is then on notice 

that, in accordance with § 84.85(f)(1), 

the content on the school’s passwordprotected website for the class to which 

the school assigns the student must be 

accessible in compliance with the 

requirements of § 84.84 by the date the 

term begins, regardless of the time 

frames for evaluation or the review or 

development of an Individualized 

Education Program or section 504 plan. 

As in the postsecondary context, the 

Department believes that these 

exceptions and limitations strike a 

proper balance of providing necessary 

and timely access to class or course 

content, while not imposing burdens 

where class or course content is 

currently only utilized by a population 

of students and parents without relevant 

disabilities, but it welcomes public 

feedback on whether alternative 

approaches might strike a more 

appropriate balance. 

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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 passwordprotected 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 § 84.85(f) and (f)(1)– 

(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? 

Individualized, Password-Protected 

Documents 

In proposed § 84.85(g), the 

Department is considering an exception 

to the accessibility requirements of 

§ 84.84 for web-based ‘‘conventional 

electronic documents that are: (1) about 

a specific individual, their property, or 

their account; and (2) passwordprotected or otherwise secured.’’ 

Many recipients use the web to 

provide access to digital versions of 

documents for their customers, 

constituents, and other members of the 

public. For example, many hospitals 

offer a virtual platform where health 

care providers can send digital versions 

of test results and scanned documents to 

their patients. The Department 

anticipates that a recipient could have 

many such documents. The Department 

also anticipates that making 

conventional electronic documents 

accessible in this context may be 

difficult for recipients, and that in many 

instances, the individuals who are 

entitled to view a particular 

individualized document will not need 

an accessible version. However, some 

recipients might be able to make some 

types of documents accessible relatively 

easily after they make the template they 

use to generate these individualized 

documents accessible. To help better 

understand whether these assumptions 

are accurate, the Department asks 

questions for public comment below 

about what kinds of individualized, 

conventional electronic documents 

recipients make available, how 

recipients make these documents 

available to individuals, and what 

experiences individuals have had in 

accessing these documents. 

This proposed exception is expected 

to reduce the burdens on recipients. The 

Department expects that making such 

documents accessible for every 

individual, regardless of whether they 

need such access, could be too 

burdensome and would not deliver the 

same benefit to the public as a whole as 

if the recipient were to focus on making 

other types of web content accessible. 

The Department expects that it would 

generally be more impactful for 

recipients to focus resources on making 

documents accessible for those 


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316See proposed 45 CFR 84.77(b)(2); 28 CFR 

35.160(b)(2). 

317See proposed 45 CFR 84.68(b)(7). 

318See proposed 45 CFR 84.77; ADA 

Requirements: Effective Communication, U.S. Dep’t 

of Just. (updated Feb. 28, 2020), https://

www.ada.gov/effective-comm.htm [https://

perma.cc/W9YR-VPBP]. 

319See W3C®, Web Content Accessibility 

Guidelines 2.1 (June 5, 2018), https://www.w3.org/ 

TR/WCAG21/#cc1 [https://perma.cc/ZL6N-VQX4]. 

320See W3C®, Web Content Accessibility 

Guidelines 2.1, Conforming Alternate Version (June 

5, 2018), https://www.w3.org/TR/WCAG21/#dfnconforming-alternate-version [https://perma.cc/ 

5NJ6-UZPV]. 

321See W3C®, Understanding WCAG 2.0 (Oct. 7, 

2016), https://www.w3.org/TR/UNDERSTANDINGWCAG20/conformance.html#uc-conforming-altversions-head [https://perma.cc/DV5L-RJUG]. 

individuals who actually need the 

documents to be accessible. It is the 

Department’s understanding that 

making conventional electronic 

documents accessible is generally a 

more time and resource intensive 

process than making other types of web 

content accessible. As discussed below, 

recipients must still provide accessible 

versions of individualized, passwordprotected conventional electronic 

documents in a timely manner when 

those documents pertain to individuals 

with disabilities. This approach is 

consistent with the broader section 504 

regulatory framework. For example, 

hospitals are not required to provide 

accessible bills to all customers. Instead, 

hospitals need only provide accessible 

bills to those customers who need them 

because of a disability. 

This exception is limited to 

‘‘conventional electronic documents’’ as 

defined in § 84.10. This exception 

would, therefore, not apply in a case 

where a recipient makes individualized 

information available in formats other 

than a conventional electronic 

document. For example, if a hospital 

makes individualized bills available on 

a password-protected web platform as 

HTML content (rather than a PDF), that 

content would not be subject to this 

exception. Such bills, therefore, would 

need to be made accessible in 

accordance with proposed § 84.84. On 

the other hand, if a recipient makes 

individualized bills available on a 

password-protected web platform in 

PDF form, that content would be 

excepted from the accessibility 

requirements of § 84.84, subject to the 

limitation discussed in further detail 

below. 

This exception also only applies 

when the content is individualized for 

a specific person or their property or 

account. Examples of individualized 

documents include medical records or 

notes about a specific patient or receipts 

for purchases. Content that is broadly 

applicable or otherwise for the general 

public (i.e., not individualized) is not 

subject to this exception. For instance, 

a PDF notice that explains an upcoming 

rate increase for all utility customers 

and is not addressed to a specific 

customer would not be subject to this 

exception. Such a general notice would 

not be subject to this exception even if 

it were attached to or sent with an 

individualized letter, like a bill, that is 

addressed to a specific customer. 

Finally, this exception applies only to 

password-protected or otherwise 

secured content. Content may be 

otherwise secured if it requires 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 excepted. 

This proposed exception for 

individualized, password-protected 

conventional electronic documents has 

certain limitations. While the exception 

is meant to alleviate the burden on 

recipients of making all individualized, 

password-protected or otherwise 

secured conventional electronic 

documents generally accessible, people 

with disabilities must still be able to 

access information from documents that 

pertain to them. An accessible version 

of these documents must be provided in 

a timely manner.316 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.317 For example, 

if a person with a disability requests 

access to an inaccessible bill from a 

county hospital, the hospital may need 

to extend the payment deadline and 

waive any late fees if the hospital does 

not provide the bill in an accessible 

format in sufficient time for the person 

to review the bill before payment is due. 

As in other situations involving a 

recipient’s effective communication 

obligations—for example, when 

providing an American Sign Language 

interpreter—this exception and its 

accompanying limitation would also 

apply to the companion of the person 

receiving the recipient’s services in 

appropriate circumstances.318

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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? 

§ 84.86 Conforming Alternate Versions 

Generally, to meet the WCAG 2.1 

standard, a web page must satisfy one of 

the defined levels of conformance—in 

the case of this proposed rule, Level 

AA.319 However, WCAG 2.1 allows for 

the creation of a ‘‘conforming alternate 

version,’’ a separate web page that 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.320

The ostensible 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. 

Having direct access to an accessible 

web page provides the best user 

experience for many individuals with 

disabilities, and it may be difficult for 

recipients to reliably maintain 

conforming alternate versions, which 

must be kept up-to-date. Accordingly, 

the W3C® explains that providing a 

conforming alternate version of a web 

page is intended to be a ‘‘fallback option 

for conformance to WCAG and the 

preferred method of conformance is to 

make all content directly accessible.’’ 321

However, WCAG 2.1 does not explicitly 

limit the circumstances under which a 

recipient may choose to create a 

conforming alternate version of a web 


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322See, e.g., 45 CFR 84.4(b)(2)(requiring that 

recipients administer programs and activities in 

‘‘the most integrated setting appropriate’’); 

proposed 45 CFR 84.68(d). 

323See W3C®, Understanding WCAG 2.0 (Oct. 7, 

2016), https://www.w3.org/TR/UNDERSTANDINGWCAG20/conformance.html#uc-conforming-altversions-head [https://perma.cc/DV5L-RJUG]. 

324See proposed § 84.88. 

325See proposed § 84.88(a). 

326See 28 CFR pt. 36, app. D, at 1000 (1991); 36 

CFR pt. 1191, app. B at 329. 

page instead of making the web page 

directly accessible. 

The Department is concerned that 

WCAG 2.1 can be interpreted to permit 

the development of two separate 

websites—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 page. 

This segregated approach is concerning 

and appears inconsistent with section 

504’s core principles of inclusion and 

integration.322 The Department is also 

concerned that the creation of separate 

websites for individuals with 

disabilities may, in practice, result in 

unequal access to information and 

functionality. However, as the W3C®

explains, certain limited circumstances 

may warrant the use of conforming 

alternate versions of web pages. For 

example, a conforming alternate version 

of a web page may be necessary when 

a new, emerging technology is used on 

a web page, but the technology is not yet 

capable of being made accessible, or 

when a website owner is legally 

prohibited from modifying the web 

content.323

Due to the concerns about user 

experience, segregation of users with 

disabilities, unequal access to 

information, and maintenance burdens 

discussed above, the Department is 

proposing to adopt a slightly different 

approach to ‘‘conforming alternate 

versions’’ than that provided under 

WCAG 2.1. Instead of permitting entities 

to adopt ‘‘conforming alternate 

versions’’ whenever they believe this is 

appropriate, proposed § 84.86 makes it 

clear that use of conforming alternate 

versions of websites and web content to 

comply with the Department’s proposed 

requirements in § 84.84 is permissible 

only where it is not possible to make 

websites and 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 is 

protected by copyright). 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. For 

example, a conforming alternate version 

would not be permissible due to 

technical limitations just because a 

recipient’s web developer lacked the 

knowledge or training needed to make 

content accessible. By contrast, the 

recipient could use a conforming 

alternate version if its website 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, such as lacking the right to 

alter the content or needing to maintain 

the content as it existed at a particular 

time due to pending litigation. 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. However, proposed 

§ 84.86 does not prohibit recipients from 

providing alternate versions of web 

pages in addition to their accessible 

main web page to possibly provide users 

with certain types of disabilities a better 

experience. 

In addition to allowing conforming 

alternate versions to be used where it is 

not possible to make websites and web 

content directly accessible due to 

technical or legal limitations, this 

proposed rulemaking also incorporates 

general limitations if recipients can 

demonstrate that full compliance with 

§ 84.84 would result in a fundamental 

alteration in the nature of a program or 

activity or undue financial and 

administrative burdens.324 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.325 One way in which 

recipients could fulfill their obligation 

to provide the benefits or services to the 

maximum extent possible, in the rare 

instance when they can demonstrate 

that full compliance would result in a 

fundamental alteration or undue 

burdens, is through creating conforming 

alternate versions. 

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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 recipient’s programs and activities? 

§ 84.87 Equivalent Facilitation 

Proposed § 84.87 provides that 

nothing prevents a recipient from using 

designs, methods, or techniques as 

alternatives to those prescribed in the 

proposed 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.326 However, for purposes of 

proposed subpart I, the reason for 

allowing for equivalent facilitation is to 

encourage flexibility and innovation by 

recipients while still ensuring equal or 

greater access to web and mobile 

content. Especially in light of the rapid 

pace at which technology changes, this 

proposed provision is intended to 

clarify that recipients can use methods 

or techniques that provide equal or 

greater accessibility than this proposed 

rule would require. For example, if a 

recipient wanted to conform its website 

or mobile app to WCAG 2.1 Level 

AAA—which includes all the Level AA 

requirements plus some additional 

requirements for even greater 

accessibility—this provision makes 

clear that the recipient would be in 

compliance with this rule. A recipient 

could also choose to comply with this 

rule by conforming its website to WCAG 

2.2 or WCAG 3.0, so long as the version 

and conformance level of those 

guidelines that the recipient selects 

includes all of the WCAG 2.1 Level AA 

requirements. The Department believes 

that this proposed provision offers 

needed flexibility for entities 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. 

§ 84.88 Duties 

Section 84.88 sets forth the general 

limitations on the obligations under 

subpart I. Proposed § 84.88(a) provides 

that in meeting the accessibility 

requirements set out in this subpart, a 

recipient is not required to take any 

action that would result in a 


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327 28 CFR 35.150(a)(3), 35.164. 

328See similar determination by the Department 

of Justice. 28 CFR pt. 35, app. B, at 708 (2022). 

329See id. 330See, e.g., proposed 45 CFR 84.22(a)(2). 

fundamental alteration in the nature of 

its programs or activities or undue 

financial and administrative burdens. 

These proposed limitations on a 

recipient’s duty to comply with the 

proposed regulatory provisions mirror 

the fundamental alteration and undue 

burdens compliance limitations 

proposed in this rulemaking in 

§ 84.22(a)(2) (program accessibility), 

§ 84.81 (effective communication), 

§ 84.92(e) (accessible medical 

equipment), and the fundamental 

alteration compliance limitation in 

§ 84.68(b)(7)(i) (reasonable 

modifications in policies, practices, or 

procedures). These fundamental 

alteration and undue burdens 

compliance limitations are also 

currently provided in the title II 

regulation in 28 CFR 35.150(a)(3) 

(program accessibility) and 35.164 

(effective communication), and the 

fundamental alteration compliance 

limitation is currently provided in the 

title II regulation in 28 CFR 35.130(b)(7) 

(reasonable modifications in policies, 

practices, or procedures). 

Generally, the Department believes 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, 

though the Department seeks the 

public’s input on this view. Moreover, 

like the fundamental alteration and 

undue burdens limitations in the title II 

regulation referenced above, proposed 

§ 84.88(a) does not relieve a recipient of 

all obligations to individuals with 

disabilities. Although a recipient under 

this proposed rule is not required to 

take actions that would result in a 

fundamental alteration in the nature of 

a program or activity or 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 full Level AA 

compliance would result in a 

fundamental alteration or undue 

financial and administrative burdens. 

However, this same 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 compliance with 

some of the WCAG 2.1 Level A or Level 

AA success criteria. 

It is the Department’s view that most 

entities that choose to assert a claim that 

full compliance with the proposed web 

or mobile app accessibility requirements 

would result in undue financial and 

administrative burdens will be able to 

attain at least partial compliance. The 

Department believes that there are many 

steps a recipient can take to comply 

with WCAG 2.1 that should not result 

in an undue financial and 

administrative burdens, depending on 

the particular circumstances. 

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 proposed § 84.88 

would fundamentally alter the nature of 

a program or activity or would result in 

undue financial and administrative 

burdens rests with the recipient. The 

Department of Justice first promulgated 

this language in its title II regulation in 

1991 and has consistently maintained 

that the decision that compliance would 

result in a fundamental alteration or 

impose undue burdens must be made by 

the head of the recipient or their 

designee, and must be memorialized 

with a written statement of the reasons 

for reaching that conclusion.327 The 

Department is adopting this language in 

its proposed section 504 rule to 

maintain consistency between the ADA 

and section 504 and to maintain 

continuity for its recipients, most of 

whom are also covered by the ADA. The 

Department recognizes the difficulty 

recipients have in identifying the 

official responsible for this 

determination, given the variety of 

organizational structures within 

recipients and their components.328

Thus, the Department intends to follow 

the approach that the determination 

must be made by a high level official, 

no lower than a major component head, 

that has been designated by the head of 

the recipient and has budgetary 

authority and responsibility for making 

spending decisions.329 Where a 

recipient cannot bring web content or a 

mobile app into compliance without a 

fundamental alteration or undue 

burdens, it must take other steps to 

ensure that individuals with disabilities 

receive the benefits or services provided 

by the recipient to the maximum extent 

possible. 

Once a recipient has complied with 

the web or mobile app accessibility 

requirements set forth in subpart I, it is 

not required to make further 

modifications to its web or mobile app 

content to accommodate an individual 

who is still unable to access, or does not 

have equal access to, the web or mobile 

app content due to their disability. 

Compliance with these web and mobile 

accessibility requirements does not 

remove covered entities’ obligations as 

employers, with respect to job 

applicants and employees, 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. The Department 

realizes that the proposed 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. 

Fully complying with the web and 

mobile app accessibility requirements 

set forth in subpart I means that a 

recipient is not required to make any 

further modifications to its web or 

mobile app content. However, 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 still 

has an obligation 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 undue 

financial and administrative burdens.330

Thus, just because a recipient is in full 

compliance with this rule’s web or 

mobile app accessibility standard does 

not mean it has met all of its obligations 

under section 504 or other applicable 

laws. Even though no further changes to 

a recipient’s web or mobile app content 

are required by section 504, a recipient 


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331See 45 CFR 84.4, redesignated as 84.68; 

proposed 84.68(b)(7); proposed 84.77. 

332See W3C®, Developing an Accessibility 

Statement (Mar. 11, 2021), https://www.w3.org/ 

WAI/planning/statements/ [https://perma.cc/ 

85WU-JTJ6]. 

333 36 CFR 1194.1; id. part 1194, app. A (E205.4). 

334 14 CFR 382.43(c)(1). 

335 Id. 

336 14 CFR 382.43(c)(2). 

337Fla. Stat. 282.603 (2023). 

338 30 Ill. Comp. Stat. 587 (2023); Illinois 

Information Technology Accessibility Act (Mar. 18, 

2022), https://www.dhs.state.il.us/page.aspx?item=

32765. 

339Commonwealth of Massachusetts, Enterprise 

Information Technology Accessibility Policy (July 

28, 2021), https://www.mass.gov/policy-advisory/ 

enterprise-information-technology-accessibilitypolicy [https://perma.cc/8293-HXUA]. 

340Fla. Stat. § 282.603 (2021); Illinois Information 

Technology Accessibility Act (Mar. 18, 2022), 

https://www.dhs.state.il.us/page.aspx?item=32765; 

Web Accessibility Standards (Jan. 20, 2005), https:// 

www.mass.gov/guides/web-accessibility-standards 

[https://perma.cc/MTG3-94PR]. 

341Cal. Gov’t Code 11546.7. 

342 Department of Rehabilitation, Website 

Accessibility Requirements and Assessment 

Checklists, https://www.dor.ca.gov/Home/

WebRequirementsAndAssessmentChecklists 

[https://perma.cc/JAS9-Q343]. 

343Minnesota IT Services, Guidelines for 

Accessibility and Usability of Information 

Continued 

must still take other steps necessary to 

ensure that an individual with a 

disability who, on the basis of disability, 

is unable to access or does not have 

equal access to the program or activity 

provided by the recipient through its 

web content or mobile app can obtain 

access through other effective means. 

The recipient must still satisfy its 

general obligations to provide effective 

communication, reasonable 

modifications, and an equal opportunity 

to participate in or benefit from the 

entity’s services using methods other 

than its website or mobile app.331 Of 

course, a recipient may also choose to 

further modify its web or mobile app 

content to make that content more 

accessible or usable than this subpart 

requires. 

The recipient must determine on a 

case-by-case basis how best to 

accommodate those individuals who 

cannot access the program or activity 

provided through the recipient’s fully 

compliant web content or mobile app. A 

recipient should refer to 45 CFR 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 

participate in, and enjoy the benefits of, 

the recipient’s program or activity. A 

recipient should refer to 45 CFR 

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. The 

Department therefore strongly 

recommends that the recipient provide 

notice to the public on how an 

individual who cannot use the web 

content or mobile app because of a 

disability can request other means of 

effective communication or reasonable 

modifications in order to access the 

recipient’s programs or activities that 

are being provided through the web 

content or mobile app. The Department 

also strongly recommends that the 

recipient provide an accessibility 

statement that tells the public about 

how to bring web or mobile app 

accessibility problems to the recipient’s 

attention, and that recipients consider 

developing and implementing a 

procedure for reviewing and addressing 

any such issues raised. For example, 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 or mobile app 

content or to request assistance.332

Providing this information will help 

recipients to ensure that they are 

satisfying their obligations to provide 

equal access, effective communication, 

and reasonable modifications. 

Measuring Compliance 

As discussed above, the Department is 

proposing to adopt specific standards 

for recipients to use to ensure that their 

web content and mobile apps are 

accessible to individuals with 

disabilities. Proposed § 84.84 requires 

recipients to ensure that any web 

content and mobile apps that they make 

available to members of the public or 

use to offer programs and activities to 

members of the public are readily 

accessible to and usable by individuals 

with disabilities. Proposed § 84.84(b) 

sets forth the specific technical 

requirements in WCAG 2.1 Level AA 

with which recipients must conform 

unless compliance results in a 

fundamental alteration in the nature of 

a program or activity or undue financial 

and administrative burdens. Now that 

the Department is proposing requiring 

recipients to conform with a specific 

technical standard for web accessibility, 

it seeks to craft a framework for 

determining when a recipient has 

complied with that standard. The 

framework will ensure the full and 

equal access to which individuals with 

disabilities are entitled, while setting 

forth obligations that will be achievable 

for recipients. 

1. Existing Approaches To Defining and 

Measuring Compliance 

a. Federal Approaches 

The Department is aware of two 

Federal agencies that have implemented 

requirements for complying with 

technical standards for web 

accessibility. Each agency has taken a 

different approach to defining what it 

means to comply with its regulation. As 

discussed above, for Federal agency 

websites covered by Section 508, the 

Access Board requires conformance 

with WCAG 2.0 Level A and Level 

AA.333 In contrast, in its regulation on 

accessibility of air carrier websites, the 

Department of Transportation took a 

tiered approach that did not require all 

web content to conform to a technical 

standard before the first compliance 

date.334 Instead, the Department of 

Transportation required those web 

pages associated with ‘‘core air travel 

services and information’’ to conform to 

a technical standard first, while other 

types of content could come into 

conformance later.335 The Department 

of Transportation also required air 

carriers to consult with members of the 

disability community to test, and obtain 

feedback about, the usability of their 

websites.336

b. State Governments’ Approaches 

Within the United States, different 

public entities have taken different 

approaches to measuring compliance 

with a technical standard under State 

laws. For example, Florida,337

Illinois,338 and Massachusetts 339

require conformance, without specifying 

how compliance will be measured or 

how recipients can demonstrate 

compliance with this requirement.340

California requires the director of each 

State agency to certify compliance with 

technical standards and post a 

certification form on the agency’s 

website.341 California also provides 

assessment checklists for its agencies 

and guidelines for sampling and testing, 

including recommending that agencies 

use analytics data to conduct thorough 

testing on frequently used pages.342

Minnesota requires compliance with a 

technical standard, provides 

accessibility courses and other 

resources, and notes the importance of 

both automated and manual testing; it 

also states that ‘‘[f]ew systems are 

completely accessible,’’ and that ‘‘[t]he 

goal is continuous improvement.’’ 343


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Technology Standard (Apr. 17, 2018), https://

mn.gov/mnit/assets/accessibility-guidelines-2018_

tcm38-336072.pdf [https://perma.cc/Q9P5-NGMT]. 

344 1 Tex. Admin. Code 206.50, 213.21. 

345Texas Department of Information Resources, 

EIR Accessibility Tools & Training, https://

dir.texas.gov/electronic-information-resources-eiraccessibility/eir-accessibility-tools-training [https://

perma.cc/A5LC-ZTST]. 

346See W3C®, Web Content Accessibility 

Guidelines 2.1 (June 5, 2018), http://www.w3.org/ 

TR/WCAG21/[https://perma.cc/UB8A-GG2F]. 

347See W3C®, Web Content Accessibility 

Guidelines 2.1, Use of Color (June 5, 2018), https:// 

www.w3.org/TR/WCAG21/#use-of-color [https://

perma.cc/R3VC-WZMY]; id. at Keyboard Accessible 

http://www.w3.org/TR/WCAG21/#keyboardaccessible [https://perma.cc/5A3C-9KK2]. 

Texas law requires state agencies to, 

among other steps, comply with a 

technical standard, 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.344 Texas has also 

developed an automated accessibility 

scanning tool and offers courses on web 

accessibility.345

c. Other Approaches To Defining and 

Measuring Compliance 

The Department understands that 

businesses open to the public, which are 

subject to title III of the ADA, have 

taken different approaches to web 

accessibility. These approaches may 

include collecting feedback from users 

with disabilities about inaccessible 

websites or mobile apps, or relying on 

external consultants to conduct periodic 

testing and remediation. Other 

businesses may have developed detailed 

internal policies and practices that 

require comprehensive automated and 

manual testing, including testing by 

people with disabilities, on a regular 

basis throughout their digital content 

development and quality control 

processes. Some businesses have also 

developed policies that include 

timelines for remediation of any 

accessibility barriers; these policies may 

establish different remediation time 

frames for different types of barriers. 

2. Challenges of Defining and Measuring 

Compliance With This Rule 

The Department recognizes that it 

must move forward with care, weighing 

the interests of all stakeholders, so that 

as accessibility for individuals with 

disabilities is improved, innovation in 

the use of the web or mobile apps by 

public entities is not hampered. The 

Department appreciates that the 

dynamic nature of web content and 

mobile apps presents unique challenges 

in measuring compliance. For example, 

as discussed further below, this type of 

content can change frequently and 

assessment of conformance can be 

complex or subjective. Therefore, the 

Department is seeking public input on 

issues concerning how compliance 

should be measured, which the 

Department plans to address in its final 

rule. 

The Department is concerned that the 

type of compliance measures it 

currently uses in the ADA and other 

portions of section 504, such as the one 

used to assess compliance with the ADA 

Standards, may not be practical in the 

web or mobile app context. Specifying 

what it means to comply with a 

technical standard for web accessibility 

is unlike the physical accessibility 

required by the UFAS or the 2010 ADA 

Design Standards. While section 504 

physical accessibility standards can be 

objectively and reliably assessed with 

one set of tools, different automated 

testing tools may provide different 

assessments of the same website’s 

accessibility. For example, using 

different web browsers with different 

testing tools or assistive technology can 

yield different results. Assessments of a 

website’s or mobile app’s accessibility 

may change frequently over time as the 

web content or mobile apps change. 

Automated testing tools also may report 

purported accessibility errors 

inaccurately. For example, an 

automated testing tool may report an 

error because an image lacks alt text, but 

WCAG does not require such alternative 

text if the content is purely decoration 

or used for formatting.346 These tools 

may also provide an incomplete 

assessment of a website’s accessibility 

because automated tools cannot assess 

conformance with certain WCAG 

success criteria, such as whether color 

is being used as the only visual means 

of conveying information or whether all 

functionality of the content is operable 

through a keyboard interface.347

Furthermore, the Department 

understands that a person’s experiences 

of web or mobile app accessibility may 

vary depending on what assistive 

technology or other types of hardware or 

software they are using. Accordingly, 

the Department is considering what the 

appropriate measure for determining 

compliance with the web and mobile 

app accessibility requirements should 

be. 

While the Department understands 

the challenges that full conformance 

with WCAG 2.1 Level AA at all times 

may pose for some recipients, the 

Department also appreciates the serious 

impact that a failure to conform with 

WCAG 2.1 Level AA can have on people 

with disabilities. For example, if a 

person who has limited manual 

dexterity and uses keyboard navigation 

is trying to apply for public benefits, 

and the ‘‘submit’’ button on the form is 

not operable using the keyboard, that 

person will not be able to apply for 

benefits independently for benefits 

online, even if the rest of the website is 

fully accessible. A person who is blind 

and uses a screen reader may not be able 

to make an appointment at a county 

health clinic if an element of the clinic’s 

appointment calendar is not coded 

properly. Nearly all of a recipient’s web 

content could conform with the WCAG 

2.1 Level AA success criteria, but one 

instance of nonconformance could still 

prevent someone from accessing 

services on the website. People with 

disabilities must be able to access the 

many important government programs 

and activities that are offered through 

web content and mobile apps on equal 

terms, without sacrificing their privacy, 

dignity, or independence. The 

Department’s concern about the many 

barriers to full and equal participation 

in civic life that inaccessible web 

content can pose for people with 

disabilities is an important motivating 

factor behind the Department’s decision 

to propose requiring compliance with a 

technical standard. By clarifying what 

compliance with a technical standard 

means, the Department seeks to enhance 

the impact this requirement will have 

on the daily lives of people with 

disabilities by helping recipients to 

understand their obligations, thereby 

increasing compliance. 

The Department believes that a more 

nuanced definition of compliance might 

be appropriate because some instances 

of nonconformance with WCAG success 

criteria may not impede access to the 

programs or activities offered through a 

public entity’s web content or mobile 

app. For example, if the contrast 

between the text and background colors 

used for application instructions 

deviates by a few hundredths from the 

color contrast ratio required by WCAG 

2.1 Level AA, most people with low 

vision will likely still be able to access 

those instructions without difficulty. 

However, the web content would be out 

of conformance with WCAG 2.1 Level 

AA. If the Department does not establish 

a more detailed compliance framework, 

a person with a disability would have a 

valid basis for filing a complaint with 

the Department or in Federal court 

about the scenario. This could expose 

recipients to extensive litigation risk, 

while potentially generating more 

complaints than the Department or the 


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courts have capacity to resolve, and 

without improving access for people 

with disabilities. 

Some may argue that the same risk of 

allegedly unjustified enforcement action 

also exists for some provisions of 

section 504. Yet, the Department 

believes that a recipient’s website may 

be more likely to be out of full 

conformance with WCAG 2.1 Level AA 

than its buildings are to be out of 

compliance with the design standards 

required by Federal law, like UFAS or 

the 2010 ADA Standards. Sustained, 

perfect conformance with WCAG 2.1 

Level AA may be more difficult to 

achieve on a website that is updated 

several times a week and includes 

thousands of pages of content than 

compliance with the ADA Standards is 

in a town hall that is renovated once a 

decade. The Department also believes 

that slight deviations from WCAG 2.1 

Level AA may be more likely to occur 

without having a detrimental impact on 

access than is the case with the ADA 

Standards. Additionally, it may be 

easier for an aggrieved individual to 

find evidence of nonconformance with 

WCAG 2.1 Level AA than 

noncompliance with the ADA 

Standards, given the availability of 

many free testing tools and the fact that 

public entities’ websites can be accessed 

from almost anywhere. The Department 

welcomes public comment on the 

accuracy of all of these assumptions, as 

well as about whether it is appropriate 

to consider the impact of 

nonconformance with a technical 

standard when evaluating compliance 

with the proposed rule. 

3. Possible Approaches To Defining and 

Measuring Compliance With This Rule 

The Department is considering a 

range of different approaches to 

measuring compliance with this 

proposed rule. These approaches 

involve linking noncompliance with a 

technical standard to: 

(a) A numerical percentage of 

compliance with a technical standard; 

(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. 

Numerical Percentage 

The Department is considering 

whether to require a numerical 

percentage of conformance with a 

technical standard, which could be 100 

percent or less. This percentage could 

be a simple numerical calculation based 

on the number of instances of 

nonconformance across a website or 

mobile app, or the percentage could be 

calculated by weighting different 

instances of nonconformance 

differently. Weighting could be based on 

factors like the importance of the 

content; the frequency with which the 

content is accessed; the severity of the 

impact of nonconformance on a person’s 

ability to access the services, programs, 

or activities provided on the website; or 

some other formula. 

However, the Department does not 

believe that a percentage-based 

approach would achieve the purposes of 

this rule or be feasible to implement. 

First, a percentage-based approach 

seems unlikely to ensure access for 

people with disabilities. Even if the 

Department were to require that 95 

percent or 99 percent of an entity’s web 

content or mobile apps conform with 

WCAG 2.1 (or that all content or apps 

conform to 95 percent or 99 percent of 

the WCAG 2.1 success criteria), the 

relatively small percentage that does not 

conform could still block an individual 

with a disability from accessing a 

program or activity. 

A percentage-based standard is also 

likely to be difficult to implement. If the 

Department adopts a specific formula 

for calculating whether a certain 

percentage-based compliance threshold 

has been met, it could be challenging for 

members of the public and recipients to 

determine whether web content and 

mobile apps comply with this rule. 

Calculations required to evaluate 

compliance could become complex, 

particularly if the Department were to 

adopt a weighted or tiered approach that 

requires certain types of core content to 

be fully accessible, while allowing a 

lower percentage of accessibility for less 

important or less frequently accessed 

content. People with disabilities who 

are unable to use inaccessible parts of a 

website or mobile app may have 

particular difficulty calculating a 

compliance percentage, because it could 

be difficult, if not impossible, for them 

to correctly evaluate the percentage of a 

website or mobile app that is 

inaccessible if they do not have full 

access to the entire website or app. For 

these reasons, the Department currently 

is not inclined to adopt a percentagebased approach to measuring 

compliance, though we welcome public 

comment on ways that such an 

approach could be implemented 

successfully. 

Finding Noncompliance Where 

Nonconformance With a Standard 

Impacts the Ability To Have Equal 

Access 

Another possible approach would be 

to limit an entity’s compliance 

obligations where nonconformance with 

a technical standard does not impact a 

person’s ability to have equal access to 

programs or activities offered on a 

recipient’s website or mobile app. For 

example, the Department could specify 

that nonconformance with WCAG 2.1 

Level AA does not constitute 

noncompliance with this part if that 

nonconformance does not prevent a 

person with a disability from accessing 

or acquiring the same information, 

engaging in the same interactions, 

performing the same transactions, and 

enjoying the same programs and 

activities that the recipient offers 

visitors to its website without relevant 

disabilities, with substantially 

equivalent ease of use. This approach 

would provide equal access to people 

with disabilities, while limiting the 

conformance obligations of recipients 

where technical nonconformance with 

WCAG 2.1 Level AA does not affect 

access. If a recipient’s compliance were 

to be challenged, in order to prevail, the 

recipient would need to demonstrate 

that, even though it was technically out 

of conformance with one or more of the 

WCAG 2.1 Level AA success criteria, 

the nonconformance had such a 

minimal impact that this provision 

applies, and the recipient has therefore 

met its obligations under the ADA 

despite nonconformance with WCAG 

2.1. 

The Department believes that this 

approach would have a limited impact 

on the experience of people with 

disabilities who are trying to use web 

content or mobile apps for two reasons. 

First, by its own terms, the provision 

would require a recipient to 

demonstrate that any nonconformance 

did not have a meaningful effect. 

Second, it is possible that few recipients 

will choose to rely on such a provision, 

because they would prefer to avoid 

assuming the risk inherent in this 

approach to compliance. A recipient 

may find it easier to conform to WCAG 

2.1 Level AA in full so that it can 

depend on that clearly defined standard, 

instead of attempting to determine 

whether any nonconformance could be 

excused under this provision. 

Nonetheless, the Department believes 

some recipients may find such a 

provision useful because it would 

prevent them from facing the prospect 

of failing to comply with the ADA based 

on a minor technical error. The 


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348See 29 U.S.C. 794d(a)(1)(A). 

349 28 CFR 35.130(b)(ii). 

350See Level Access, The Digital Accessibility 

Maturity Model: Introduction to DAMM, https://

www.levelaccess.com/the-digital-accessibilitymaturity-model-introduction-to-damm/, [https://

perma.cc/6K38-FJZU]. 351See W3C®, W3C Accessibility Maturity Model, 

About the W3C Accessibility Maturity Model (Sept. 

6, 2022), https://www.w3.org/TR/maturity-model/ 

[https://perma.cc/NB29-BDRN]. 352See W3C®, W3C Accessibility Maturity Model, 

Ratings for Evaluation (Sept. 6, 2022), https://

www.w3.org/TR/maturity-model/ [https://perma.cc/ 

W7DA-HM9Z]. 

Department seeks public comment on 

all of these assumptions. 

The Department also believes such an 

approach may be logically consistent 

with the general nondiscrimination 

principles of Section 508, which require 

comparable access to information and 

data,348 and of the ADA’s implementing 

regulation, which require an equal 

opportunity to participate in and benefit 

from services.349 The Department has 

heard support from the public for 

ensuring that people with disabilities 

have equal access to the same 

information and services as people 

without disabilities, with equivalent 

ease of use. The Department is therefore 

evaluating ways that it can incorporate 

this crucial principle into a final rule, 

while simultaneously ensuring that the 

compliance obligations imposed by the 

final rule will be attainable for public 

entities in practice. 

Accessibility Feedback, Testing, and 

Remediation 

Another approach the Department is 

considering is whether a recipient could 

demonstrate compliance with this part 

by affirmatively establishing and 

following certain robust policies and 

practices for accessibility feedback, 

testing, and remediation. The 

Department has not made any 

determinations about what policies and 

practices, if any, would be sufficient to 

demonstrate compliance, and the 

Department is seeking public comment 

on this issue. However, for illustrative 

purposes only, and to enable the public 

to better understand the general 

approach the Department is considering, 

assume that a recipient proactively 

tested its existing web and mobile app 

content for conformance with WCAG 

2.1 Level AA using automated testing on 

a regular basis (e.g., every 30 days), 

conducted user testing on a regular basis 

(e.g., every 90 days), and tested any new 

web and mobile app content for 

conformance with WCAG 2.1 Level AA 

before that content was posted on its 

website or added to its mobile app. This 

recipient also remediated any 

nonconformance found in its existing 

web and mobile app content soon after 

the test (e.g., within two weeks). A 

recipient that took these (or similar) 

steps on its own initiative could be 

deemed to have complied with its 

obligations under the section 504, even 

if a person with a disability encountered 

an access barrier or a particular 

automated testing report indicated 

nonconformance with WCAG 2.1 Level 

AA. The recipient would be able to rely 

on its existing, effectively working web 

and mobile app content accessibility 

testing and remediation program to 

demonstrate compliance with section 

504. In a final rule, the Department 

could specify that nonconformance with 

WCAG 2.1 Level AA does not constitute 

noncompliance with this part if a 

recipient has established certain 

policies for testing the accessibility of 

web and mobile app content and 

remediating inaccessible content, and 

the entity can demonstrate that it 

follows those policies. 

This approach would enable a 

recipient to remain in compliance with 

section 504 even if its website or mobile 

app is not in perfect conformance with 

WCAG 2.1 Level AA at all times, if the 

entity is addressing any 

nonconformance within a reasonable 

period of time. A new policy that a 

recipient established in response to a 

particular complaint, or a policy that an 

entity could not demonstrate that it has 

a practice of following, would not 

satisfy such a provision. The 

Department could craft requirements for 

such policies in many different ways, 

including by requiring more prompt 

remediation for nonconformance with a 

technical standard that has a more 

serious impact on access to programs 

and activities; providing more detail 

about what testing is sufficient (e.g., 

both automated testing and manual 

testing, testing by users with certain 

types of disabilities); setting shorter or 

longer time frames for how often testing 

should occur; setting shorter or longer 

time frames for remediation; or 

establishing any number of additional 

criteria. 

Organizational Maturity 

The Department is also considering 

whether a recipient should be permitted 

to demonstrate compliance with this 

rule by showing organizational 

maturity—that the organization has a 

sufficiently robust program for web and 

mobile app accessibility. Organizational 

maturity models provide a framework 

for measuring how developed an 

organization’s programs, policies, and 

practices are—either as a whole or on 

certain topics (e.g., cybersecurity, user 

experience, project management, 

accessibility). The authors of one 

accessibility maturity model observe 

that it can be difficult to know what a 

successful digital accessibility program 

looks like, and they suggest that 

maturity models can help assess the 

proficiency of accessibility programs 

and a program’s capacity to succeed.350

Whereas accessibility conformance 

testing evaluates the accessibility of a 

particular website or mobile app at a 

specific point in time, organizational 

maturity evaluates whether a recipient 

has developed the infrastructure needed 

to produce accessible websites and 

mobile apps consistently.351 For 

example, some outcomes that an 

organization at the highest level of 

accessibility maturity might 

demonstrate include integrating 

accessibility criteria into all 

procurement and contracting decisions, 

leveraging employees with disabilities 

to audit accessibility, and periodically 

evaluating the workforce to identify 

gaps in accessibility knowledge and 

training.352

A focus on organizational maturity 

would enable a recipient to demonstrate 

compliance with section 504 even if its 

website or mobile app is not in perfect 

conformance with WCAG 2.1 Level AA 

at all times, so long as the recipient can 

demonstrate sufficient maturity of its 

digital accessibility program, which 

would indicate its ability to quickly 

remedy any issues of nonconformance 

identified. The Department could define 

requirements for organizational maturity 

in many different ways, including by 

adopting an existing organizational 

maturity model in full, otherwise 

relying on existing organizational 

maturity models, establishing different 

categories of organizational maturity 

(e.g., training, testing, feedback), or 

establishing different criteria for 

measuring organizational maturity 

levels in each category. The Department 

could also require a recipient to have 

maintained a certain level of 

organizational maturity across a certain 

number of categories for a specified 

period of time, or require a recipient to 

have improved its organizational 

maturity by a certain amount in a 

specified period of time. 

The Department has several concerns 

about whether allowing recipients to 

demonstrate compliance with this rule 

through their organizational maturity 

will achieve the goals of this 

rulemaking. First, this approach may 

not provide sufficient accessibility for 

individuals with disabilities. It is not 

clear that when recipients make their 

accessibility programs more robust, that 


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353Level Access, Digital Accessibility Maturity 

Model (DAAM) Archives, https://

www.levelaccess.com/category/damm/, [https://

perma.cc/Z683-X9H5]. 

354Level Access, The Digital Accessibility 

Maturity Model: Dimension #7—Testing and 

Validation, https://www.levelaccess.com/thedigital-accessibility-maturity-model-dimension-7- 

testing-and-validation/, [https://perma.cc/VU93- 

3NH4]. 

355See 28 CFR 35.133(b). 

356See, e.g., Nat‘l Council on Disability, 

Enforceable Accessible Medical Equipment 

Standards: A Necessary Means to Address the 

Health Care Needs of People with Mobility 

Disabilities (2021), https://ncd.gov/sites/default/ 

files/Documents/NCD_Medical_Equipment_Report_

508.pdf; Nat‘l Council on Disability, 2021 Progress 

Report: The Impact of Covid on People with 

Disabilities (2021), https://ncd.gov/sites/default/ 

files/NCD_COVID-19_Progress_Report_508.pdf 

(‘‘the lack of accessible examination and medical 

equipment in medical care means that people with 

disabilities, specifically people with mobility 

disabilities, receive substandard primary care 

compared to people without disabilities.’’). NCD 

also contacted OCR directly with these concerns. 

See, e.g., Advisory Letter from Nat‘l Council on 

Disability to U.S. Dep’t of Health & Hum. Servs 

(Aug. 27, 2019) (responding to Section 1557 Notice 

of Proposed Rulemaking, https://ncd.gov/ 

publications/2019/advisory-letter-1557 (‘‘NCD is 

extremely concerned about the significant barriers 

to health care posed by the common lack of 

accessible medical diagnostic equipment (AMDE) in 

Continued 

will necessarily result in websites and 

mobile apps that consistently conform 

to WCAG 2.1 Level AA. If the 

Department permits a lower level of 

organizational maturity (e.g., level 4 out 

of 5) or requires the highest level of 

maturity in only some categories (e.g., 

level 5 in training), this challenge may 

be particularly acute. Second, this 

approach may not provide sufficient 

predictability or certainty for recipients. 

Organizational maturity criteria may 

prove subjective and difficult to 

measure, so disputes about a recipient’s 

assessments of its own maturity may 

arise. Third, an organizational maturity 

model may be too complex for the 

Department to define or for recipients to 

implement. Some existing models 

include as many as ten categories of 

accessibility, with five levels of 

maturity, and more than ten criteria for 

some levels.353 Some of these criteria 

are also highly technical and may not be 

feasible for some recipients to 

understand or satisfy (e.g., testing 

artifacts are actively updated and 

disseminated based on lessons learned 

from each group; accessibility testing 

artifacts required by teams are actively 

updated and maintained for form and 

ease of use).354 Of course, a recipient 

that does not want to use an 

organizational maturity model would 

not need to do so; it could meet its 

obligations under the rule by 

conforming with WCAG 2.1 Level AA. 

But it is unclear whether this approach 

will benefit either people with 

disabilities or recipients. We seek public 

comment on whether the Department 

should adopt an approach to 

compliance that includes organizational 

maturity, and how such an approach 

could be implemented successfully. 

The Department seeks public 

comment on how compliance with the 

web and mobile app accessibility 

requirements should be assessed or 

measured, including comments on these 

approaches to measuring compliance 

and any alternative approaches it 

should consider. 

Please provide as much detail as 

possible and any applicable data, 

suggested alternative approaches or 

requirements, arguments, explanations, 

and examples in your responses to the 

following questions. 

• 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 355 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? 

• 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? 

Subpart J—Accessible Medical 

Equipment 

Background 

The Department is proposing adding 

a new subpart J to the existing section 

504 regulation to address the lack of 

accessible medical equipment for 

people with disabilities. Disability 

advocates have long sought adoption of 

Federal accessibility standards for 

medical equipment—a step that will 

help endure nondiscriminatory access 

to critical, and potentially lifesaving, 

care for people with disabilities. In 

addition, regulated entities would 

benefit from specific technical guidance 

on how to fulfill their obligations and 

make their programs accessible. NCD 

has issued multiple reports 

recommending that HHS adopt the U.S. 

Access Board’s Standards for Accessible 

Medical Diagnostic Equipment (MDE 

Standards).356


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most health care settings. As HHS is aware, lack of 

AMDE contributes to a lack of preventive care that 

is necessary for early diagnosis of diseases and has 

been linked to poor health outcomes, poorer quality 

of life, and shorter length of life for people with 

disabilities. When a person cannot be properly 

examined because he cannot transfer onto an exam 

table or a diagnostic machine, non-diagnosis and 

misdiagnosis are likely. Disease and illness that 

may be treatable if caught early may become worse 

or incurable, resulting in high human and economic 

costs.’’). 

357See, e.g., OCR Complaint 01–21–421198 

(Complainant alleged that there was no method to 

receive an x-ray from the covered entity as their xray machine was not sufficiently adjustable to 

accommodate her in her wheelchair, nor was there 

a method to transfer her from her wheelchair to the 

x-ray machine. After investigation the complaint 

was closed with corrective action by the covered 

entity including asking for necessary 

accommodations during scheduling, training staff 

on transfers, and acquiring a Hoyer lift for 

transfers); OCR Complaint 02–18–302905 

(Complainant alleged that she told covered entity 

she would require accessible equipment or a Hoyer 

lift to transfer for her OBGYN exam. Despite her 

request, there was no lift or accessible equipment 

present at her appointment. The complaint was 

resolved through the early complaint resolution 

process and corrective action.); OCR Complaint 01– 

16–248000 (Complainant alleged that covered entity 

told her she would have to bring her own means 

of transfer to appointments. Covered entity 

subsequently acquired a lift, trained employees on 

its use, and updated its nondiscrimination 

training.). 

358U.S. Dep’t of Justice, Justice Department 

Settles with Tufts Medical Center to Better Ensure 

Equal Access for Individuals with Disabilities (Feb. 

28, 2020), https://www.justice.gov/opa/pr/justicedepartment-settles-tufts-medical-center-betterensure-equal-access-individuals; U.S. Dep’t of 

Justice, Justice Department Reaches ADA 

Settlement with Beth Israel Deaconess Medical 

Center (Oct. 22, 2009), https://www.justice.gov/opa/ 

pr/justice-department-reaches-ada-settlement-bethisrael-deaconess-medical-center; U.S. Dep’t of 

Justice, Washington Hospital Center Agreement 

Fact Sheet (Nov. 2, 2005), https://www.ada.gov/ 

whcfactsheet.htm, https://archive.ada.gov/whc.htm; 

U.S. Dep’t of Justice, Settlement Agreement 

between U.S. and Valley Radiologists Medical 

Group (Nov. 2, 2005), Settlement Agreement 

between the United States of America and Valley 

Radiologists Medical Group, Inc. (Nov. 2, 

2005)Settlement Agreement between the United 

States of America and Valley Radiologists Medical 

Group, Inc. (Nov. 2, 2005) https://archive.ada.gov/ 

vri.htm. 

359Examples include, from the 2013 Request for 

Information, U.S. Dept. of Health and Human Serv., 

78 FR 46558, the comments from the Disability 

Rights Education and Defense Fund, available at 

https://www.regulations.gov/comment/HHS-OCR2013-0007-0152; Letter from Nat’l Council on 

Disability, to Alex Azar, Sec’y U.S. Dep’t of Health 

& Hum. Servs., Off. for Civil Rts. (July 31, 2020)(on 

need for accessible medical equipment rule), 

https://ncd.gov/publications/2020/ncd-letter-hhssecretary-azar-accessible-medical-equipment-rule; 

Lankford, Colleagues Press HHS to Prevent 

Discrimination of Individuals with Disabilities in 

Health Care, Lankford.senate.gov (May 26, 2021), 

https://www.lankford.senate.gov/news/pressreleases/lankford-colleagues-press-hhs-to-preventdiscrimination-of-individuals-with-disabilities-inhealth-care, https://www.lankford.senate.gov/news/ 

press-releases/lankford-colleagues-press-hhs-toprevent-discrimination-of-individuals-withdisabilities-in-health-care; Letter from Autistic Self 

Advocacy Network et al., to Xavier Beccera, Sec’y, 

U.S. Dept. of Health and Human Servs. (Aug. 18, 

2022) (urging the Department to provide clear 

standards for medical exam and diagnostic 

equipment); Letter from American Association of 

People with Disabilities et al., to Xavier Beccera, 

Sec’y, U.S. Dept. of Health and Human Servs. (Feb. 

24, 2022) (requesting that the Department issue 

medical diagnostic equipment standards) at https:// 

www.aapd.com/wp-content/uploads/2022/03/HHS_

Disability-Advocates-Memo-02.24.22.pdf. 

360 29 U.S.C. 794f. 

361 75 FR 43452 (July 26, 2010). 

362 75 FR 43452, 43455 (July 26, 2010). 

363 82 FR 60932 (Dec. 26, 2017). 

364Nondiscrimination on the Basis of Disability 

by State and Local Government, Public 

Accommodations, and Commercial Facilities: 

Medical Diagnostic Equipment, RIN 1190–AA78, 

https://www.reginfo.gov/public/do/

eAgendaViewRule?pubId=202210&RIN=1190-AA78 

(last visited April. 2, 2023). 

365 36 CFR 1195. 

366 85 FR 37160 (June 19, 2020). 

367 87 FR 47824, 47909 (Aug. 4, 2022). 

368See 42 U.S.C. 18116(a). 

OCR has recognized, in its 

enforcement, that section 504 requires 

covered medical practices to be 

accessible to persons with disabilities, 

including by utilizing accessible 

equipment.357 OCR has investigated and 

resolved complaints of alleged 

discrimination resulting from the lack of 

accessible medical equipment. In 

addition, DOJ has investigated 

complaints involving the lack of 

accessible medical equipment and 

entered into numerous agreements with 

hospitals requiring the purchase, lease, 

or acquisition of accessible medical 

equipment.358 And for years, the 

Department has received comments and 

letters, including public comments on 

versions of the Section 1557 rule, 

detailing the harm that people with 

disabilities face from the lack of 

accessible medical equipment and the 

expectation that the Department would 

address these barriers using its 

regulatory authority.359

The ACA added Section 510 to the 

Rehabilitation Act, directing the Access 

Board, in consultation with the Food 

and Drug Administration, to promulgate 

regulatory standards setting forth the 

minimum technical criteria for medical 

diagnostic equipment (MDE) used in (or 

in conjunction with) physicians’ offices, 

clinics, emergency rooms, hospitals, and 

other medical settings.360 These 

standards were needed to ensure that 

such equipment would be accessible to, 

and usable by, individuals with 

disabilities with accessibility needs, and 

allow independent entry to, use of, and 

exit from the equipment by such 

individuals to the maximum extent 

possible. However, the MDE Standards 

are not enforceable requirements for 

health care providers or equipment 

manufacturers until they are adopted by 

a Federal regulatory agency. In 2010, 

DOJ issued an Advance Notice of 

Proposed Rulemaking (ANPRM) on 

‘‘Nondiscrimination on the Basis of 

Disability by State and Local 

Governments and Places of Public 

Accommodation,’’ 361 that identified the 

need for accessible medical equipment 

and furniture: 

Without accessible medical examination 

tables, dental chairs, radiological diagnostic 

equipment, scales, and rehabilitation 

equipment, individuals with disabilities do 

not have an equal opportunity to receive 

medical care. Individuals with disabilities 

may be less likely to get routine preventative 

medical care than people without disabilities 

because of barriers to accessing that care.362

The ANPRM said that DOJ may 

propose regulations to ensure the 

accessibility of medical equipment that 

is used for treatment, rehabilitative, or 

other purposes. However, DOJ later 

formally withdrew the ANPRM.363 In 

the Fall 2022 Unified Regulatory 

Agenda, DOJ restated its intent to 

publish an NPRM under title II of the 

ADA covering accessibility of MDE.364

In 2015, HHS issued an NPRM on 

Nondiscrimination in Health Programs 

and Activities under Section 1557 of the 

ACA prohibiting discrimination on 

various bases, including disability, in 

certain health programs and activities. 

In the NPRM, the Department stated that 

once the Access Board standards were 

promulgated, OCR ‘‘intends to issue 

regulations or policies that require 

covered entities to conform to those 

standards.’’ In 2017, the Access Board 

published the final rule on Standards 

for Accessible Medical Diagnostic 

Equipment.365 However, when the 

Department issued a final rule on 

Section 1557 in 2020, the Department 

did not include the MDE Standards.366

Similarly, the Department’s 2022 

Section 1557 NPRM does not require 

adherence to the MDE Standards, but 

requests comment on the MDE 

Standards.367 The Department has 

determined that action on this issue is 

overdue and, as a result, is proposing 

this new subpart to the section 504 

regulation. While some entities covered 

under Section 1557 may not be covered 

under section 504, and vice versa, 

‘‘health programs or activities’’ under 

Section 1557 that are also ‘‘programs or 

activities’’ under section 504 receiving 

Federal financial assistance would be 

covered by this proposed subpart.368

The Department is coordinating its 

publication of this proposed rule with 

DOJ, which is concurrently publishing a 

proposed rule addressing the 

accessibility of medical diagnostic 

equipment under title II of the ADA. 

Given the relationship between section 

504 and title II and Congressional intent 


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369 82 FR 2810 (Jan. 9, 2017). 

370See 87 6037 (Feb. 3, 2022). 

371 88 FR 33056–33063 (May 23, 2023). 

372 88 FR 50096 (Aug. 1, 2023). 

373Nat’l Council on Disability, The Current State 

of Health Care for People with Disabilities (2009), 

https://www.ncd.gov/publications/2009/ 

Sept302009 (last accessed Aug. 17, 2022). See, e.g., 

Dep’t of Health & Human Servs., Administration for 

Community Living, Wheelchair-Accessible Medical 

Diagnostic Equipment: Cutting Edge Technology, 

Cost-Effective for Health Care Providers, and 

Consumer-Friendly (2020), https://

health.maryland.gov/bhm/DHIP/Documents/ 

Medical%20Diagnostic%20Equipment%

20Fact%20Sheet%20Final.pdf (last accessed Aug. 

17, 2022). 

374U.S. Dep’t of Health & Human Servs., Ctrs. for 

Disease Control, Disability Impacts All of Us, 

https://www.cdc.gov/ncbddd/disabilityandhealth/ 

infographic-disability-impacts-all.html (last visited 

Oct. 25, 2022). 

375U.S. Census Bureau, American Community 

Survey, Disability Characteristics, https://

data.census.gov/cedsci/table?t=Disability&tid=

ACSST1Y2019.S1810 (last visited Dec. 27, 2021). 376See, e.g., Anna Marrocco and Helene J Krouse, 

‘‘Obstacles to preventive care for individuals with 

disability: Implications for nurse practitioners,’’ J. 

Am. Ass’n of Nurse Pract. 2017 May;29(5):282–293 

(2017) at 289; U.S. Dep’t of Health & Human Servs., 

Off. of the Surgeon Gen., ‘‘The Surgeon General’s 

Call To Action To Improve the Health and Wellness 

of Persons with Disabilities,’’ (2005), available at 

https://www.ncbi.nlm.nih.gov/books/NBK44667/ 

(last visited Dec. 2, 2021); NCD Report at 14. 

377Nat’l Council on Disability Enforceable 

Accessible Medical Equipment Standards at 15 

(2021), https://ncd.gov/sites/default/files/ 

Documents/NCD_Medical_Equipment_Report_

508.pdf. 378 Id. at 16–17. 379See A. Ordway et al., ‘‘Health Care Access and 

the Americans with Disabilities Act: A Mixed 

Methods Study,’’ 14 Disability and Health J. (2021) 

(Stating that of 536 people with disabilities 

surveyed, 25% had difficulty accessing exam 

tables). See also J. L. Wong et al., ‘‘Identification of 

Targets for Improving Access to Care in Persons 

with Long Term Physical Disabilities,’’ 12 Disability 

and Health J. 366 (2019) (stating that of the 462 

people who needed a height-adjustable examination 

table, 56% received it). 

that the two disability rights laws 

generally be interpreted consistently, 

both Departments are proceeding with 

rulemakings that provide the same 

requirements, one for recipients of 

Federal financial assistance from HHS 

and the other for public entities subject 

to title II of the ADA. 

Overview of Access Board’s MDE 

Standards 

In implementing the mandate set forth 

in § 510 of the Rehabilitation Act to 

promulgate technical standards for 

accessible MDE, the Access Board 

received input from various 

stakeholders through a multi-year 

deliberative process and published the 

MDE Standards on January 9, 2017.369

The Access Board divides the MDE 

Standards into four separate technical 

criteria based on how the equipment is 

used by the patient: (1) supine, prone, 

or side lying position; (2) seated 

position; (3) seated in a wheelchair; and 

(4) standing position. For each category 

of use, the MDE Standards provide for 

independent entry to, use of, and exit 

from the equipment by patients with 

disabilities to the maximum extent 

possible. 

The technical requirements for MDE 

used by patients in the supine, prone, or 

side-lying position (such as examination 

tables) and MDE used by patients in the 

seated position (such as examination 

chairs) focus on ensuring that the 

patient can transfer from a mobility 

device onto the MDE. The other two 

categories set forth the necessary 

technical requirements to allow the 

patient to use the MDE while seated in 

their wheelchair (such as during a 

mammogram) or while standing (such as 

on a weight scale), respectively. The 

MDE Standards also include technical 

criteria for supports, including for 

transfer, standing, leg, head and back 

supports; instructions or other 

information communicated to patients 

through the equipment; and operable 

parts used by patients. 

The Access Board’s MDE Standards 

currently contain a temporary standard 

governing the minimum low height 

requirement for transfers from 

diagnostic equipment used by patients 

in a supine, prone, side-lying, or seated 

position. Specifically, the temporary 

standard provides for a minimum low 

transfer height requirement of 17 inches 

to 19 inches. The temporary nature of 

this standard was due to insufficient 

data on the extent to which, and how 

many, individuals would benefit from a 

transfer height lower than 19 inches. 

While this temporary standard is in 

effect, any low transfer height between 

17 and 19 inches will meet the MDE 

Standards. Under a sunset provision, as 

extended, this low height range remains 

in effect only until January 10, 2025.370

On May 23, 2023, the Access Board 

issued an NPRM that proposes removing 

the sunset provisions in the Board’s 

existing MDE Standards related to the 

low-height specifications for transfer 

surfaces, and replacing them with final 

specifications for the low transfer height 

of medical diagnostic equipment used 

in the supine, prone, side-lying, and 

seated positions.371 Comments on this 

NPRM will be received until August 31, 

2023.372 After the Access Board 

analyzes the comments that it receives, 

the Board will issue a final, updated 

minimum low transfer height standard. 

After this new standard is adopted, the 

Department will consider issuing a 

supplemental rulemaking under section 

504 to adopt the updated Standards. 

Need for the Adoption of MDE 

Standards 

The accessibility of MDE is essential 

to providing equal access to medical 

care to people with disabilities. In 

developing this proposed subpart, the 

Department considered the welldocumented barriers individuals with 

disabilities face when accessing MDE, as 

well as the benefits for people with 

disabilities and health care workers 

alike of using accessible MDE.373 The 

accessibility or inaccessibility of MDE 

impacts a substantial population— 

approximately 61 million adults live 

with a disability in the U.S., and 13.7% 

of those individuals have a mobility 

disability with serious difficulty 

walking or climbing stairs.374 According 

to the U.S. Census Bureau, as of 2019, 

of the over 41 million people with 

disabilities in the U.S. living outside of 

institutional settings, mobility or 

ambulatory impairment is estimated to 

be the most common category of 

disability.375 While not all individuals 

with a mobility disability with serious 

difficulty walking or climbing stairs, or 

individuals with mobility or ambulatory 

impairments will require accessible 

MDE, or benefit from it to the same 

extent, significant portions of these 

populations will benefit from accessible 

MDE. Further, a number of studies and 

reports have shown that individuals 

with disabilities may be less likely to get 

routine or preventative medical care 

than people without disabilities because 

of barriers to accessing appropriate care 

through MDE.376 In one case, a patient 

with a disability remained in his 

wheelchair for the entirety of his annual 

physical exam, which consisted of his 

doctor listening to his heart and lungs 

underneath his clothing, looking inside 

his ears and throat, and then stating, ‘‘I 

assume everything below the waist is 

fine.’’ 377 In another case, a patient with 

a disability could be transferred to a 

standard exam table, but extra staff was 

needed to keep her from falling off the 

table since it did not have any side rails. 

As a result of this and a number of other 

frightening experiences, the patient 

avoided going to the doctor unless she 

was very ill.378 Multiple studies have 

been conducted that found individuals 

with certain disabilities face barriers to 

accessing MDE and are often denied 

accessible MDE by their health care 

providers.379 Accessible MDE is thus 

often critical to an entity’s ability to 

provide a person with a disability equal 

access to, and opportunities to benefit 

from, its health care programs and 

activities. 

The Department has also consistently 

provided information to covered entities 


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380See ‘‘Access to Medical Care for Individuals 

with Mobility Disabilities,’’ May 17, 2010, available 

at https://www.ada.gov/medcare_mobility_ta/ 

medcare_ta.htm (last visited Dec. 2, 2021). 381 Id. 382See, e.g., U.S. Dep’t of Just. & U.S. Dep’t of 

Health & Human Servs., Access to Medical Care for 

Individuals with Mobility Disabilities (July 22, 

2010), available at https://www.ada.gov/medcare_

mobility_ta/medcare_ta.htm. 383NCD Report at 14. 384 Id. at 52. 

385See U.S. Dep’t of Just. & U.S. Dep’t of Health 

& Human Servs., Access to Medical Care for 

Individuals with Mobility Disabilities (July 22, 

2010), available at https://www.ada.gov/medcare_

mobility_ta/medcare_ta.htm. 

on how they can make their health care 

programs and activities accessible to 

individuals with mobility disabilities. 

For example, the Department and DOJ 

jointly issued a technical assistance 

document on medical care for people 

with mobility disabilities, addressing 

how accessible MDE can be critical to 

ensure that people with disabilities 

receive medical services equal to those 

received by people without 

disabilities.380 In particular, the 

document explains that the ‘‘availability 

of accessible medical equipment is an 

important part of providing accessible 

medical care, and doctors and other 

providers must ensure that medical 

equipment is not a barrier to individuals 

with disabilities.’’ 381 The guidance also 

provides examples of accessible medical 

equipment, including adjustable-height 

exam tables and chairs, wheelchairaccessible scales, adjustable-height 

radiologic equipment, portable floor and 

overhead track lifts, gurneys, and 

stretchers, and discusses how people 

with mobility disabilities use this 

equipment. 

The Department recognizes that in 

addition to its efforts to ensure that 

people with disabilities have equal 

access to medical care, including 

through technical assistance,382

providing enforceable technical 

standards will help ensure clarity to 

recipients on how to fulfill their existing 

obligations under title II and section 504 

in their health care programs and 

activities. As discussed in the preamble 

to § 84.56, Medical treatment, the 

COVID–19 pandemic has had a 

devastating and disproportionate impact 

on people with disabilities and has 

underscored how dire the consequences 

may be for those who lack adequate 

access to medical care and treatment. As 

the NCD Report notes, significant health 

care disparities for persons with 

disabilities are due in part to the lack of 

physical access to MDE, and ‘‘[e]nsuring 

physical access to care through 

accessible MDE is necessary to equitably 

provide medical care for all people, and 

the need continues to grow.’’ 383 As a 

result of its findings, NCD called upon 

DOJ to revise its ADA regulations to 

require health care providers to formally 

adopt the MDE Standards.384

Accordingly, the Department is 

proposing changes to its section 504 

regulations that can help ensure that 

vital health care programs and activities 

are equally available to individuals with 

disabilities. Specifically, the 

Department is considering adopting and 

incorporating into its section 504 

regulation the specific technical 

requirements for accessible MDE that 

are set forth in the Access Board’s MDE 

Standards. 

Section-by-Section Analysis 

This analysis discusses the 

Department’s proposed changes to the 

section 504 regulation, including the 

reasoning behind the proposals, and 

poses questions for public comment. 

§ 84.90 Application 

This section states that the subpart 

applies to recipients of Federal financial 

assistance from the Department. 

§ 84.91 Requirements for Medical 

Diagnostic Equipment 

This section provides general 

accessibility requirements for programs 

and activities that recipients provide 

through or with the use of MDE. 

Recipients must ensure that their 

programs and activities offered through 

or with the use of MDE are accessible to 

individuals with disabilities. 

Under this general provision (barring 

an applicable limitation or defense), a 

recipient cannot deny services that it 

would otherwise provide to a patient 

with a disability because the recipient 

lacks accessible MDE. A recipient also 

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.385 The recipient 

cannot require the person 

accompanying the patient to assist. 

§ 84.92 Newly Purchased, Leased, or 

Otherwise Acquired Medical Diagnostic 

Equipment 

For MDE that recipients purchase, 

lease, or otherwise acquire after the 

effective date of this proposed rule (60 

days after its publication in the Federal 

Register), the proposed rule adopts an 

approach that draws on the approach 

that the existing section 504 regulations 

apply to new construction and 

alterations of buildings and facilities. 

The Department would require that all 

MDE that a recipient purchases, leases, 

or otherwise acquires after the rule’s 

effective date must be accessible, unless 

and until the proposed rule’s scoping 

requirements, set forth in more detail in 

§ 84.92(b), are satisfied. As in the fixed 

or built-in environment, this rule is 

proposing that the accessibility of MDE 

will be governed by a specific set of 

design standards promulgated by the 

Access Board that set forth technical 

requirements for accessibility. So long 

as a recipient has the amount of 

accessible MDE set forth in the scoping 

requirements in § 84.92(b), the recipient 

is not required to continue to obtain 

accessible MDE when it purchases, 

leases, or otherwise acquires MDE after 

the effective date. However, a recipient 

may choose to acquire additional 

accessible MDE after it satisfies the 

scoping requirements. 

§ 84.92(a) Requirements for Newly 

Purchased, Leased, or Otherwise 

Acquired Medical Diagnostic 

Equipment 

Paragraph (a) adopts the Access 

Board’s MDE Standards as the standard 

governing whether MDE is accessible 

and establishes one of the proposed 

rule’s key requirements: that subject to 

applicable limitations and defenses, all 

MDE that recipients purchase, lease, or 

otherwise acquire after the effective date 

must meet the MDE Standards unless 

and until the recipient already has a 

sufficient amount of accessible MDE to 

satisfy the scoping requirements of the 

proposed rule. 

As explained above in more detail, 

the MDE Standards include technical 

criteria for equipment that is used when 

patients are either 1) in a supine, prone, 

or side-lying position; 2) in a seated 

position; 3) in a wheelchair; or 4) in a 

standing position. They also contain 

standards for supports, communication, 

and operable parts. In addition, the 

MDE Standards also contain 

requirements for equipment to be 

compatible with patient lifts where a 

patient would transfer under positions 

(1) and (2) above. 

Consistent with the language in 29 

U.S.C. 794f(b), MDE covered under this 

subpart includes examination tables, 

examination chairs (including chairs 

used for eye examinations or 

procedures, and dental examinations or 

procedures), weight scales, 

mammography equipment, x-ray 

machines, and other radiological 


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386See 36 CFR pt. 1191, app. B sec. 213.3.1. 

387 82 FR 2810, 2846 (Jan. 9, 2017). 

388See 36 CFR pt. 1191, app. B secs. 208.2.2, 

223.2.1, 223.2.2. 

389Recipients that are public entities are subject 

to the requirements of title II of the ADA; recipients 

that are private entities engaged in providing health 

care or social services, among other entities, are 

subject to the requirements of title III of the ADA. 

390See 28 CFR 35.151(h); 36 CFR pt. 1191, app. 

B sec. 223.1. 

391See 36 CFR pt. 1191, app. B sec. 223.1. 

392See 36 CFR pt. 1191, app. B sec. 223.2.1. 

393See 36 CFR pt. 1191, app. B sec. 223.2.2. 

394See 36 CFR pt. 1191, app. B sec. 208.2.2. 

equipment commonly used for 

diagnostic purposes by health 

professionals. This section covers 

medical equipment used by health 

professionals for diagnostic purposes 

even if it is also used for treatment 

purposes. 

Given the many barriers to health care 

that people with disabilities encounter 

due to inaccessible MDE, adopting the 

MDE Standards will give many people 

with disabilities an equal opportunity to 

participate in and benefit from health 

care programs and activities. 

§ 84.92(b) Scoping 

Paragraph (b) proposes scoping 

requirements for accessible MDE. 

Accessibility standards generally 

contain scoping requirements (how 

many accessible features are needed) 

and technical requirements (what makes 

a particular feature accessible). For 

example, the 2010 ADA Standards for 

Accessible Design (2010 ADA 

Standards) provide scoping 

requirements for how many toilet 

compartments in a particular toilet room 

must be accessible and provide 

technical requirements on what makes 

these toilet compartments accessible.386

The MDE Standards issued by the 

Access Board contain technical 

requirements, but they do not specify 

scoping requirements. Rather, the MDE 

Standards state that ‘‘[t]he enforcing 

authority shall specify the number and 

type of diagnostic equipment that are 

required to comply with the MDE 

Standards.’’ 387 For the technical 

requirements to be implemented and 

enforced effectively, it is necessary for 

the Department to provide scoping 

requirements to specify how much 

accessible MDE is needed for a 

recipient’s program or activity to 

comply with section 504. 

The scoping requirements that the 

Department proposes are based on the 

requirements the 2010 ADA Standards 

establish for accessible patient sleeping 

rooms and parking in hospitals, 

rehabilitation facilities, psychiatric 

facilities, detoxification facilities, and 

outpatient physical therapy facilities.388

Because many recipients must comply 

with titles II and III of the ADA,389

many recipients are likely already 

familiar with these standards. 

According to the 2010 ADA 

Standards, licensed medical care 

facilities and licensed long-term care 

facilities where the period of stay 

exceeds 24 hours shall provide 

accessible patient or resident sleeping 

rooms and disperse them 

proportionately by type of medical 

specialty.390 Where sleeping rooms are 

altered or added, the sleeping rooms 

being altered or added shall be made 

accessible until the minimum number of 

accessible sleeping rooms is 

provided.391 Hospitals, rehabilitation 

facilities, psychiatric facilities, and 

detoxification facilities that do not 

specialize in treating conditions that 

affect mobility shall have at least 10 

percent of their patient sleeping rooms, 

but no fewer than one, provide specific 

accessibility features for patients with 

mobility disabilities.392 Hospitals, 

rehabilitation facilities, psychiatric 

facilities, and detoxification facilities 

that specialize in treating conditions 

that affect mobility must have 100 

percent of their patient sleeping rooms 

provide specific accessibility features 

for patients with mobility disabilities.393

In addition, at least 20 percent of patient 

and visitor parking spaces at outpatient 

physical therapy facilities and 

rehabilitation facilities specialized in 

treating conditions that affect mobility 

must be accessible.394

• 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. 

Proposed paragraphs (b)(1)–(3) lay out 

scoping requirements for this section. 

Paragraph (b)(1) provides the general 

requirement for physician’s offices, 

clinics, emergency rooms, hospitals, 

outpatient facilities, multi-use facilities, 

and other medical programs and 

activities that do not specialize in 

treating conditions that affect mobility. 

When these entities use MDE to provide 

programs or activities, they must ensure 

that at least 10 percent, but no fewer 

than one unit, of each type of equipment 

complies with the MDE Standards. For 

example, a medical practice with 20 

examination chairs would be required to 

have two examination chairs (10 percent 

of the total) that comply with the MDE 

Standards. In a medical practice with 

five examination chairs, the practice 

would be required to have one 

examination chair that complies with 

the MDE Standards (because every 

covered entity must have no fewer than 

one unit of each type of equipment that 

is accessible). If a dental practice has 

one x-ray machine, that x-ray machine 

would be required to be accessible. 

Proposed paragraph (b)(2) provides the 

scoping requirement for rehabilitation 

facilities that specialize in treating 

conditions that affect mobility, 

outpatient physical therapy facilities, 

and other medical programs and 

activities that specialize in treating 

conditions that affect mobility. This 

paragraph requires that at least 20 

percent of each type of MDE used in 

these types of programs and activities, 

but no fewer than one unit of each type 

of MDE, must comply with the MDE 

Standards. Because these facilities 

specialize in treating patients who are 

likely to need accessible MDE, it is 

reasonable for them to have more 

accessible MDE than is required for the 

health care providers covered by 

paragraph (b)(1), who do not have the 

same specialization. The Department 

considered whether to require 100 

percent of MDE in these programs to be 

accessible, like ec. 223.2.2 of the 2010 

ADA Standards for Accessible Design, 

which requires that 100 percent of 

patient sleeping rooms in similar 

facilities provide specific accessibility 

features for patients with mobility 

disabilities. However, the Department is 

instead proposing a scoping 

requirement analogous to sec. 208.2.2 of 

the 2010 ADA Standards, which 

requires 20 percent of visitor and 

patient parking spaces at such facilities 

to be accessible. The time-limited use of 

MDE is more analogous to the use of 

parking spaces at a rehabilitation facility 

than to the use of sleeping rooms. As 

with parking spaces, several different 

patients with mobility disabilities could 

use the same piece of MDE in a day, 

while patients generally occupy a 

sleeping room for all or a significant 

part of the day. Thus, the Department’s 

proposed rule draws on the 2010 ADA 

Standards’ scoping requirements by 

requiring at least 20 percent (but no 

fewer than one unit) of each type of 


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395 28 CFR 35.151(h). A similar dispersion 

requirement was not necessary for medical care 

facilities that specialize in the treatment of 

conditions that affect mobility, because 100 percent 

of patient sleeping rooms in those facilities are 

required to be accessible. See 36 CFR pt. 1191, app. 

B sec. 223.2.2. 

396See 28 CFR 35.130(b)(ii); 35.150(a). 

397See, e.g., 36 CFR pt. 1191, app. B secs. 221.2.2, 

224.5, 225.3.1, 235.2.1. According to these sections, 

when the required number of accessible elements 

has been provided, further dispersion is not 

required. 

equipment in use in facilities that 

specialize in treating conditions that 

affect mobility to meet the MDE 

Standards, and requiring at least 10 

percent (but no fewer than one unit) of 

each type of equipment in use in other 

facilities to meet the MDE Standards. 

• 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. 

Paragraph (b)(3) addresses facilities or 

programs with multiple departments, 

clinics, or specialties. The current ADA 

title II regulation requires medical care 

facilities that do not specialize in the 

treatment of conditions that affect 

mobility to disperse the accessible 

patient sleeping rooms in a manner that 

is proportionate by type of medical 

specialty.395 The proposed rule includes 

an analogous dispersion requirement. In 

any facility or program that has multiple 

departments, clinics, or specialties, 

where a program or activity utilizes 

MDE, the accessible MDE required by 

paragraphs (b)(1) and (2) shall be 

dispersed proportionately across 

departments, clinics, or specialties. For 

example, a hospital that is required to 

have five accessible x-ray machines 

cannot place all the accessible x-ray 

machines in the orthopedics department 

and none in the emergency department. 

People with disabilities must have an 

opportunity to benefit from each type of 

medical care provided by the recipient 

that is equal to the opportunity 

provided to people without 

disabilities.396 The proposed rule would 

not require recipients to acquire 

additional MDE, beyond the amount 

specified in proposed paragraphs (b)(1) 

and (2), to ensure that accessible MDE 

is available in every department, clinic, 

and specialty. The Department believes 

that this approach is consistent with 

many provisions of the 2010 ADA 

Standards.397 Additionally, the 

Department believes that if the rule 

were to require full dispersion across 

every department, clinic, and specialty, 

it could be difficult to determine 

whether the scoping requirements have 

been satisfied. For example, a clinic 

may be part of a department and also 

part of a specialty (or include providers 

with multiple specialties), so calculating 

the percentages of accessible MDE each 

department, clinic, or specialty has 

could become complex. However, the 

Department also recognizes that it is 

critically important for people with 

disabilities to have access to all types of 

medical care. Therefore, covered entities 

would still be required to ensure that all 

of their programs and activities are 

accessible to and usable by individuals 

with disabilities, regardless of whether 

a specific department, clinic, or 

specialty would be required to acquire 

accessible MDE under proposed 

paragraph (b)(3). 

• 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: 

Æ The extent to which accessible MDE 

can be moved or otherwise shared 

between clinics or departments. 

Æ The burdens that the rule’s 

proposed approach to dispersion or 

additional dispersion requirements may 

impose on recipients. 

Æ 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). 

84.92(c) Requirements for Examination 

Tables and Weight Scales 

Paragraph (c) sets forth specific 

requirements for examination tables and 

weight scales. Proposed paragraph (c)(1) 

would require recipients that use at 

least one examination table in their 

program or activity to purchase, lease, 

or otherwise acquire, within two years 

after the publication of this part in final 

form, at least one examination table that 

meets the requirements of the MDE 

Standards, unless the entity already has 

one in place. Similarly, proposed 

paragraph (c)(2) requires recipients that 

use at least one weight scale in their 

program or activity to purchase, lease, 

or otherwise acquire, within two years 

after the publication of this part in final 

form, at least one weight scale that 

meets the requirements of the MDE 

Standards, unless the entity already has 

one in place. This requirement is subject 

to the other requirements and 

limitations set forth in § 84.92. Thus, 

this section does not require a recipient 

to acquire an accessible examination 

table and an accessible weight scale if 

doing so would result in a fundamental 

alteration in the nature of the program 

or activity or undue financial and 

administrative burdens, per § 84.92(e) 

and (f). In addition, recipients may use 

designs, products, or technologies as 

alternatives to those prescribed by the 

MDE Standards if the criteria set forth 

in § 84.92(d) are satisfied. 

The Department notes that it is 

proposing to retain § 84.22(c) in the 

Existing Facilities section of its current 

section 504 rule, which applies to small 

health, welfare, or other social service 

providers. Under this provision, when a 

recipient with fewer than fifteen 

employees finds, after consultation with 

an individual with disabilities seeking 

its services, that there is no method of 

complying with these requirements 

other than making a significant 

alteration in its existing facilities, it may 

refer the patient with a disability who 

seeks health care services to other 

providers of those services that are 

accessible. The Department is 

considering applying the framework of 

that provision to this subpart. The 

recipient in question must ensure that 

the other medical practice is taking 

patients and that the practice is 

accessible. It should also be within a 

reasonable distance of the referring 

provider. The Department seeks 

comment on the advisability and equity 

implications of retaining this provision 

and applying it to the obligation to 

acquire accessible MDE under this 

proposed rule. The Department also 

seeks any suggestions for addressing its 

scope, including what should constitute 

a ‘‘reasonable distance’’ to a referred 

provider. 

• MDE Question 8: The Department 

seeks public comment on the potential 

impact of the requirement of paragraph 


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(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. 

§ 84.92(d) Equivalent Facilitation 

Paragraph (d) specifies that a recipient 

may use designs, products, or 

technologies as alternatives to those 

prescribed by the MDE Standards, for 

example, to incorporate innovations in 

accessibility. However, this exception 

applies only where the recipient 

provides substantially equivalent or 

greater accessibility and usability than 

the MDE Standards require. It does not 

permit a recipient to use an innovation 

that reduces access below what the MDE 

Standards would provide. The 

responsibility for demonstrating 

equivalent facilitation rests with the 

recipient. 

§ 84.92(e) Fundamental Alteration and 

Undue Burdens 

Paragraph (e) addresses the 

fundamental alteration and undue 

financial and administrative burdens 

defenses. While the proposed rule 

generally requires recipients to adhere 

to the MDE Standards when newly 

purchasing, leasing, or otherwise 

acquiring equipment, it does not require 

recipients to take steps that would result 

in a fundamental alteration in the nature 

of their programs or activities or undue 

financial or administrative burdens. 

These proposed limitations mirror the 

existing ADA title II regulation at 28 

CFR 35.150(a)(3). If a particular action 

would result in a fundamental alteration 

or undue burdens, the recipient would 

be obligated to take 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 the 

recipient provides. 

§ 84.92(f) Diagnostically Required 

Structural or Operational Characteristics 

Paragraph (f) incorporates what the 

Access Board’s MDE Standards refer to 

as a General Exception. The paragraph 

states that, where a recipient can 

demonstrate that compliance with the 

MDE Standards would alter 

diagnostically required structural or 

operational characteristics of the 

equipment, preventing the use of the 

equipment for its intended diagnostic 

purpose, compliance with the Standards 

would result in a fundamental alteration 

and therefore would not be required. 

The Department expects that this 

provision will apply only in rare 

circumstances. 

In such circumstances, the recipient 

would still be required to take other 

action that would not result in such an 

alteration or such burdens but would 

nevertheless ensure that individuals 

with disabilities could receive the 

programs or activities the recipient 

provides. For example, the Department 

has been informed that certain positron 

emission tomography (PET) machines 

cannot meet the MDE Standards’ 

technical requirements for accessibility 

and still serve their diagnostic function. 

If this is so, then recipients would not 

be required to make those PET machines 

fully accessible, but they would be 

required to take other action that would 

enable individuals with disabilities to 

access PET machines in some other way 

without fundamentally altering the 

nature of the program or activity or 

imposing an undue financial or 

administrative burdens. Such actions 

may include assisting patients who use 

wheelchairs with transferring so that 

they can receive a PET scan. 

§ 84.93 Existing Medical Diagnostic 

Equipment 

In addition to the requirements for 

newly purchased, leased, or otherwise 

acquired MDE, proposed § 84.93 

requires that recipients address access 

barriers resulting from a lack of 

accessible MDE in their existing 

inventory of equipment. Here the 

proposed rule adopts an approach 

analogous to the concept of program 

accessibility in the existing regulation at 

§ 84.22. Under this approach, recipients 

may make their programs and activities 

available to individuals with disabilities 

without extensive retrofitting of their 

existing buildings and facilities that 

predate the regulations, by offering 

access to those programs through 

alternative methods. The Department 

intends to adopt a similar approach 

with MDE to provide flexibility to 

recipients, address financial concerns 

about acquiring new MDE, and at the 

same time ensure that individuals with 

disabilities will have access to the 

programs and activities of the recipient. 

Proposed § 84.93 requires that each 

program or activity of a recipient, when 

viewed in its entirety, be readily 

accessible to and usable by individuals 

with disabilities. Section 84.93(a)(1) 

makes clear, however, that a recipient is 

not required to make each piece of its 

existing MDE accessible. Like § 84.92(e), 

§ 84.93(a)(2) incorporates the concepts 

of fundamental alteration and undue 

financial and administrative burdens. 

These provisions do not excuse a 

recipient from addressing the 

accessibility of the program. If a 

particular action would result in a 

fundamental alteration or undue 

burdens, the recipient would still be 

obligated to ensure that individuals 

with disabilities are able to receive the 

recipient’s benefits and services. 

§ 84.93(b) Methods 

Paragraph (b) sets forth various 

methods by which recipients can make 

their programs and activities readily 

accessible to and usable by individuals 

with disabilities when the requirements 

in proposed § 84.92 have not been 

triggered by the new acquisition of 

MDE. Of course, the purchase, lease, or 

other acquisition of accessible MDE may 

often be the most effective way to 

achieve program accessibility. However, 

except as stated in proposed § 84.92, a 

recipient is not required to purchase, 

lease, or acquire accessible MDE if other 

methods are effective in achieving 

compliance with this subpart. 

For example, if doctors at a medical 

practice have staff privileges at a local 

hospital that has accessible MDE, the 

medical practice may be able to achieve 

program accessibility by ensuring that 

the doctors see these patients at the 

hospital, rather than at the local office, 

so long as the person with a disability 

is afforded an opportunity to participate 

in or benefit from the program or 

activity equal to that afforded to others. 

Similarly, if a medical practice has 

offices in several different locations, and 

one of the locations has accessible MDE, 

the medical practice may be able to 

achieve program accessibility by serving 

the patient who needs accessible MDE 

at that location. However, such an 

arrangement would not provide an 

equal opportunity to participate in or 

benefit from the program or activity if it 

was, for example, significantly less 

convenient for the patient, or if the visit 

to a different location resulted in higher 

costs for the patient. 

• 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. 

Similarly, if the scoping requirements 

set forth in § 84.92(b) would require a 

recipient’s medical practice to have 

three height-adjustable exam tables and 

an accessible weight scale, but the 

practice’s existing equipment includes 

only one accessible exam table and one 


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398See U.S. Dep’t of Just. & U.S. Dep’t of Health 

& Human Servs., Access to Medical Care for 

Individuals with Mobility Disabilities (July 22, 

2010), available at https://www.ada.gov/medcare_

mobility_ta/medcare_ta.htm. 

399Ancillary equipment may include equipment 

such as cushions, bolsters, straps, sliding boards, or 

other items used to facilitate transfers and to help 

position patients. 

400See U.S. Access Board, Medical Diagnostic 

Equipment Accessibility Standards Advisory 

Committee, Advancing Equal Access to Diagnostic 

Services: Recommendations on Standards for the 

Design of Medical Diagnostic Equipment for Adults 

with Disabilities (Dec. 6, 2013). 

accessible scale, then until the practice 

must comply with § 84.92, the practice 

could ensure that its services are readily 

accessible to and usable by people with 

disabilities by establishing operating 

procedures such that, when a patient 

with a mobility disability schedules an 

appointment, the accessible MDE can be 

reserved for the patient’s visit. In some 

cases, a recipient may be able to make 

its services readily accessible to and 

usable by individuals with disabilities 

by using a patient lift or a trained lift 

team, especially in instances in which a 

patient cannot or chooses not to 

independently transfer to the MDE in 

question.398

If the means by which a recipient 

carries out its obligation under 

§ 84.93(a) to make its program or 

activity readily accessible to and usable 

by individuals with disabilities is by 

purchasing, leasing, or otherwise 

acquiring accessible MDE, the 

requirements for newly purchased, 

leased, or otherwise acquired MDE set 

forth in § 84.92 apply. 

The Department is also aware that 

there may be initial supply issues for 

accessible MDE, particularly if a large 

number of recipients seek to purchase 

accessible MDE at the same time. The 

Department does note that the 

fundamental alteration and undue 

financial and administrative burdens 

limitations may apply if supply chain 

issues hamper the ability of recipients to 

purchase, lease, or otherwise acquire 

accessible MDE. 

The proposed rule’s requirements 

apply regardless of whether recipients 

are using MDE that is leased, purchased, 

or acquired through other means. The 

Department is aware that some 

recipients may lease MDE, rather than 

purchasing it outright. The 

Department’s existing section 504 

regulation, at 45 CFR 84.4(b)(4), 

redesignated as § 84.68(b)(4), provides 

that a recipient may not, directly or 

through contractual or other 

arrangements, use criteria or methods of 

administration that subject qualified 

persons with disabilities to 

discrimination on the basis of disability. 

The Department’s existing section 504 

regulation, at 45 CFR 84.4(b)(1)(i)–(ii), 

redesignated as § 84.68(b)(1)(i)–(ii), also 

prohibits a recipient from, directly or 

through contractual or other 

arrangements, denying a qualified 

individual with a disability the 

opportunity to participate in or benefit 

from a service, or affording a qualified 

individual with a disability an 

opportunity to participate in or benefit 

from a service that is not equal to the 

opportunity afforded others. Under 

these longstanding regulatory 

provisions, the manner in which a 

recipient acquires its equipment does 

not alter the entity’s obligation to 

provide an accessible program or 

activity. The proposed rule’s 

requirements also apply if the recipient 

contracts with a third party to provide 

medical programs, services, or activities. 

• 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 and 

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. 

Medical Equipment Used for Treatment, 

Not Diagnostic, Purposes 

Many types of medical equipment 

other than MDE are used in the 

provision of health care. The 

accessibility, or lack thereof, of these 

types of equipment can determine 

whether people with disabilities have 

an equal opportunity to participate in 

and benefit from health programs and 

activities. This non-diagnostic medical 

equipment may be used in federally 

assisted programs and includes, for 

example, devices intended to be used 

for therapeutic or rehabilitative care 

such as treatment tables and chairs for 

oncology, obstetrics, physical therapy, 

and rehabilitation medicines; lifts; 

infusion pumps used for dispensing 

chemotherapy drugs, pain medications, 

or nutrients into the circulatory system; 

dialysis chairs used while a patient’s 

blood is pumped between a patient and 

a dialyzer; other tables or chairs 

designed for highly specialized 

procedures; general exercise and 

rehabilitation equipment used while 

seated or standing; and ancillary 

equipment 399 needed to ensure the 

safety and comfort of patients in the use 

of medical equipment.400 Although the 

MDE Standards do not address nondiagnostic medical equipment, certain 

types of other medical equipment that 

are not diagnostic in purpose may still 

fall into the technical criteria categories 

set out by the MDE Standards 

(equipment used in (1) supine, prone, or 

side lying position, (2) seated position, 

(3) while seated in a wheelchair, and (4) 

standing position; certain technical 

requirements concerning methods of 

communication and operable parts). As 

noted above, equipment used for both 

diagnostic purposes and other purposes 

is MDE if it otherwise meets the 

definition of MDE. 

The Department is considering adding 

a provision establishing that when the 

MDE Standards contain technical 

standards that can be applied to a 

particular piece of non-diagnostic 

medical equipment, the requirements 

set forth in §§ 84.91–84.94 apply to the 

non-diagnostic medical equipment at 

issue. Although MDE Standards were 

promulgated by the Access Board in 

response to a statutory mandate to 

provide standards specific to diagnostic 

equipment, recipients have an 

obligation under section 504 to provide 

equal opportunity to benefit from 

medical care of all types, including 

through the use of equipment that does 

not satisfy the definition of MDE. The 

Department seeks comment on whether 

to apply the Access Board’s MDE 

Standards to non-diagnostic 

equipment—for example, because the 

relevant characteristics of some types of 

non-diagnostic equipment may be 

sufficiently similar to MDE to warrant 

applying the same standards—and if 

there is adequate justification for 

applying the MDE Standards’ technical 

specifications to non-diagnostic 

equipment, which non-diagnostic 

equipment should be covered. For 

example, infusion chairs used only to 

dispense chemotherapy drugs are not 

used for diagnostic purposes and 

therefore would not fall under the 

definition of MDE. But if the MDE 

Standards contained technical standards 

that could be applied to infusion chairs, 

the requirements set forth in §§ 84.91– 

84.94 could apply to such equipment. 

The Department seeks public comment 

on whether this rule should apply to 

medical equipment that is not used for 

diagnostic purposes, and if so, in what 

situations it should apply. 


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401See 29 U.S.C. 705(10). 

402See 29 U.S.C. 705(10), (20)(C). 

403Compare 42 U.S.C. 12210 (ADA) with 29 

U.S.C. 705(20)(C) (Rehabilitation Act). 

404See, e.g., Berardelli v. Allied Servs. Inst. of 

Rehab. Med., 900 F.3d 104, 117, 120 (3d Cir. 2018) 

(concluding that courts ‘‘constru[e] the provisions 

of [both statutes] in light of their close similarity of 

language and purpose,’’ and ‘‘generally apply the 

same standard for determination of liability’’ to 

both ‘‘in recognition that the scope of protection 

afforded under both statutes, i.e., the general 

prohibition[ ] against discrimination, is materially 

the same,’’ and holding ‘‘that the service animal 

regulations, although technically interpreting the 

ADA, are no less relevant to the interpretation of 

the RA’’) (cleaned up); Argenyi v. Creighton Univ., 

703 F.3d 441, 448 (8th Cir. 2013) (stating, in a 

communications access case, that ‘‘[s]ince the ADA 

and the Rehabilitation Act are similar in 

substance,’’ we treat the case law interpreting them 

as interchangeable.’’) (cleaned up); Zukle v. Regents 

of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 

1999) (‘‘There is no significant difference in 

analysis of the rights and obligations created by the 

ADA and the Rehabilitation Act.’’) See also, 

Abrahams v. MTA Long Island Bus., 644 F. 3d 110, 

115 (2d Cir. 2011) (‘‘Because the ADA and the 

Rehabilitation Act impose nearly identical 

requirements, we focus on the ADA but our analysis 

applies to the Rehabilitation Act as well.’’); Weixel 

v. Bd. of Educ., 287 F. 3d 138, 146 n. 6 (2d Cir. 

2002) (‘‘. . . the reach and requirements of both 

statutes are precisely the same. . . .’’); Rodriguez v. 

City of N.Y., 197 F. 3d 611, 618 (2d Cir. 1999) 

(‘‘Because section 504 of the Rehabilitation Act and 

the ADA impose identical requirements, we 

consider these claims in tandem.’’); Theriault v. 

Flynn, 162 F. 3d 46, 48 n. 3 (1st Cir. 1998) (‘‘Title 

II of the ADA was expressly modeled after section 

504 of the Rehabilitation Act, and is to be 

interpreted consistently with that provision.’’); Doe 

v. Univ. of Md. Med. Sys. Corp., 50 F. 3d 1261, 1265 

n. 9 (4th Cir. 1995) (‘‘Because the language of the 

two statutes is substantially the same, we apply the 

same analysis to both.’’); Collings v. Longview Fibre 

Co., 63 F. 3d 828, 832 n. 3 (9th Cir. 1995) (‘‘The 

legislative history of the ADA indicates that 

Congress intended judicial interpretation of the 

Rehabilitation Act be incorporated by reference 

when interpreting the ADA.’’). 

405 In addition, the legislative history of the 1992 

amendments to the Rehabilitation Act reveals 

congressional intent that the policies, practices, and 

procedures of the ADA should guide all titles of the 

Rehabilitation Act. S. Rept. 102–357, at 14 (Aug. 3, 

1992); H.R. Rep. 102–822, at 81 (Aug. 10, 1992). 

406See, e.g., Schl. Bd. of Nassau Cnty. v. Arline, 

480 U.S. 273 (1987); Alexander v. Choate, 469 U.S. 

287 (1985); Southeastern Cmty. Coll. v. Davis, 442 

U.S. 397 (1979). 

407 42 U.S.C. 12132. 

408See, e.g., H. Rept. 101–485(II) at 84 (May 15, 

1990). 

409See, e.g., 42 U.S.C. 12201(a). 

• MDE Question 14: If this rule were 

to apply to medical equipment that is 

not used for diagnostic purposes, 

Æ ‘‘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?’’ 

Æ Are there particular types of nondiagnostic medical equipment that 

should or should not be covered? 

§ 84.94 Qualified Staff 

The proposed rule requires recipients 

to ensure that 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 with 

respect to existing MDE. This will 

enable recipients to carry out their 

obligation to make the programs and 

activities that they offer through or with 

the use of MDE readily accessible to and 

usable by individuals with disabilities. 

The Department believes recipients 

must have, at all times when services 

are provided to the public, appropriate 

and knowledgeable personnel who can 

operate MDE in a manner that ensures 

services are available and timely 

provided. 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. 

• 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. 

III. Nondiscrimination in Programs and 

Activities 

B. Revised Provisions Addressing 

Discrimination and Ensuring 

Consistency With Statutory Changes 

and Significant Court Decisions 

The Department seeks to revise its 

existing section 504 regulation for 

federally assisted programs to 

incorporate statutory amendments to the 

Rehabilitation Act, the enactment of the 

ADA and the ADAAA, the Affordable 

Care Act, and Supreme Court and other 

significant court cases. The regulations 

also need to be revised to update 

outdated terminology and regulatory 

provisions. 

The ADA revised the Rehabilitation 

Act to include definitions of the terms 

‘‘drugs’’ and ‘‘illegal use of drugs,’’ 

directing that these terms be interpreted 

consistent with the principles of the 

Controlled Substances Act, 21 U.S.C. 

801 et seq.401 Both the ADA and the 

Rehabilitation Act expressly exclude 

from coverage an individual who is 

currently engaging in the illegal use of 

drugs,402 although the exclusions in the 

Rehabilitation Act differ in some ways 

from those in the ADA.403 The 

Rehabilitation Act Amendments of 1992 

changed the term ‘‘handicapped 

person’’ to ‘‘individual with a 

disability’’ and provided that the 

standards contained in title I of the ADA 

apply to determinations of employment 

discrimination under section 504. More 

recently, the ADAAA revised the 

meaning and interpretation of the 

definition of ‘‘disability’’ under section 

504 to ensure that the term is 

interpreted consistently with the 

expanded definition of ‘‘disability’’ 

codified in the ADA and in section 

504’s statutory language. 

To ensure consistency with the ADA, 

the proposed rule contains the following 

provisions that mirror the ADA 

provisions: definition of ‘‘disability,’’ 

notice, maintenance of accessible 

features, retaliation or coercion, 

personal devices and services, service 

animals, mobility devices, and 

communications. Provisions that are 

similar to the ADA include purpose and 

broad coverage, definitions, general 

prohibitions against discrimination, 

program accessibility, illegal drugs, 

direct threat, and integration. Courts 

have generally interpreted section 504 

consistently with title II of the ADA.404

For this reason, and because applying 

the same standard under both statutes 

promotes compliance and eases the 

burden on recipients of the 

Department’s financial assistance, we 

propose to align the provisions of this 

rule with ADA requirements absent 

some specific statutory language or 

strong policy reason to take a divergent 

path.405

In addition, there have been 

significant U.S. Supreme Court 

decisions interpreting section 504 

requirements relating to the ‘‘direct 

threat’’ limitation and to the obligation 

to provide ‘‘reasonable modifications’’ 

unless those modifications can be 

shown to pose a fundamental alteration 

to the program or activity.406 The 

proposed regulation incorporates the 

‘‘direct threat’’ principle in § 84.75 and 

the ‘‘reasonable modifications’’ 

principle in § 84.68(b)(7). 

Relationship Between Section 504 and 

the ADA 

Title II of the ADA prohibits 

discrimination on the basis of disability 

by public entities (i.e., State and local 

governments and their agencies),407 and 

is modeled on section 504 of the 

Rehabilitation Act.408 Title II of the 

ADA and section 504 are generally 

understood to impose similar 

requirements, given the similar language 

employed in the ADA and the 

Rehabilitation Act.409 The legislative 

history of the ADA makes clear that title 


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410See H. Rep. 101–485(II) at 84 (May 15, 1990). 

411 29 U.S.C. 701(a)(3)(F), as amended. 

412S. Rep. 102–357, at 14 (Aug. 3, 1992). 

413See id.; see also H.R. Rep. 102–822, at 81 (Aug. 

10, 1992). 

414See supra note 243. 

415Where HHS has made changes to this section 

504 regulation to correspond to provisions in the 

Department of Justice’s title II regulation, HHS 

encourages individuals to look to the corresponding 

title II guidance and section-by-section analysis for 

guidance on how to interpret these provisions. See 

28 CFR part 35, app. A, B, C. 

416See 29 U.S.C. 705(20)(B); ADA Amendments 

Act of 2008, Public Law 110–325 section 7(2) 

(2008). 

417See ADAAA section 2(a)(6), (b)(2)–(5) (2008). 

418ADAAA section 4(a) (2008). 

419 480 U.S. 273 (1987). 

420ADAAA section 7 (2008). 

421 42 U.S.C. 12102(4)(A). 

II of the ADA was intended to extend 

the requirements of section 504 to apply 

to all State and local governments, 

regardless of whether they receive 

Federal funding, demonstrating 

Congress’s intent that title II and section 

504 be interpreted consistently.410

The Rehabilitation Act Amendments 

of 1992 revised the Rehabilitation Act’s 

findings, purpose, and policy provisions 

to incorporate language acknowledging 

the discriminatory barriers faced by 

persons with disabilities, and 

recognizing that persons with 

disabilities have the right to ‘‘enjoy full 

inclusion and integration in the 

economic, political, social, cultural and 

educational mainstream of American 

society.’’ 411 The legislative history to 

the Rehabilitation Act Amendments of 

1992 states that the purpose and policy 

statement is ‘‘a reaffirmation of the 

precepts of the Americans with 

Disabilities Act,’’ 412 and that these 

principles are intended to guide the 

Rehabilitation Act’s policies, practices, 

and procedures.413 Further, courts 

interpret these statutes consistently.414

Thus, the Department believes there is 

and should be parity between the 

relevant provisions of section 504 and 

title II of the ADA. Because the 

Department is amending its existing, 

longstanding regulation and not simply 

issuing a new regulation, it is necessary 

to incorporate its revisions in several 

subparts of the existing rule.415 The 

added or revised provisions are: 

Purpose and broad coverage (§ 84.1): 

Revisions to Subpart A 

Application (§ 84.2): Revisions to Subpart A 

Relationship to other laws (§ 84.3): Revisions 

to Subpart A 

Definition of disability (§ 84.4): Revisions to 

Subpart A 

Notice (§ 84.8): Revisions to Subpart A 

Definitions (§ 84.10): Revisions to Subpart A 

Employment (§ 84.16): Revisions to Subpart 

B 

Program Accessibility (§§ 84.21–84.23): 

Revisions to Subpart C 

Childcare, Preschool, Elementary and 

Secondary, and Adult Education (§§ 84.31, 

84.38): Revisions to Subpart D 

Health, Welfare, and Social Services 

(§§ 84.51–84.55): Revisions to Subpart F 

Subpart G: General Requirements (§§ 84.68– 

84.76)): New subpart 

General prohibitions against discrimination 

(§ 84.68) 

Illegal use of drugs (§ 84.69) 

Maintenance of accessible features (§ 84.70) 

Retaliation and coercion (§ 84.71) 

Personal devices and services (§ 84.72) 

Service animals (§ 84.73) 

Mobility devices (§ 84.74) 

Direct threat (§ 84.75) 

Integration (§ 84.76) 

Subpart H: Communications (§§ 84.77– 

84.81): New subpart 

Subpart K: Procedures (§ 84.98) 

Proposed Section 504 Regulations and 

Existing Requirements 

Recipients of Federal financial 

assistance from HHS that are also State 

and local governments (subject to title II 

of the ADA) and those that are places of 

public accommodation (subject to title 

III of the ADA) have been obligated to 

comply with the ADA title II and title 

III regulations since 1991 when those 

regulations were promulgated. Most 

entities covered by section 504 that are 

not covered by title II are covered by 

title III. Accordingly, in most instances, 

this proposed section 504 regulation is 

not imposing new requirements on 

recipients. Rather, in such instances, it 

is aligning section 504 requirements 

with existing ADA requirements to 

which many entities have been subject 

since 1991. 

The sections of the proposed 

regulation that track the ADA title II 

and/or III regulations are: definition of 

‘‘disability,’’ notice, general prohibitions 

against discrimination, maintenance of 

accessible features, retaliation and 

coercion, personal devices and services, 

service animals, mobility devices, and 

communications. The following sections 

are similar to the ADA title II and/or 

title III regulations: purpose and broad 

coverage, definitions, program 

accessibility, illegal use of drugs, direct 

threat, and integration. 

Terminology 

When the Department’s section 504 

regulation was issued in 1977, it 

followed the terminology of the statute, 

using the word ‘‘handicap’’ and the 

phrase ‘‘handicapped person.’’ 

However, the Rehabilitation Act 

Amendments of 1992 changed the term 

‘‘handicapped person’’ to ‘‘individual 

with a disability.’’ The Department’s 

proposed revisions incorporate these 

terminology changes into its rules. The 

revisions also include use of the phrase 

‘‘qualified individual with a disability’’ 

rather than the phrase ‘‘qualified 

handicapped person.’’ The terminology 

changes also include substitution of the 

phrase ‘‘individual with a substance use 

disorder’’ for ‘‘drug addict’’ and 

‘‘individual with an alcohol use 

disorder’’ for ‘‘alcoholic.’’ In making 

these changes as well as other similar 

ones, the Department is merely updating 

terminology and intends no substantive 

change to its interpretation of section 

504 and its implementing regulation. 

§ 84.1 Purpose and Broad Coverage: 

Revision to Subpart A 

Proposed § 84.1(a) states that 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 programs and activities receiving 

Federal financial assistance. 

Proposed § 84.1(b) states that the 

definition of ‘‘disability’’ in this part 

shall be construed broadly in favor of 

expansive coverage. This is consistent 

with the ADAAA’s purpose of 

reinstating a broad scope of protection 

under the ADA and ensuring that the 

Rehabilitation Act was interpreted 

consistently by including a conforming 

amendment for section 504. The 

ADAAA amended the definition of 

disability provisions of the ADA and 

applied the same new definitional 

provisions to section 504.416 Congress 

passed the ADAAA to overturn 

Supreme Court decisions that had too 

narrowly interpreted the ADA’s 

definition of disability.417 Those narrow 

interpretations resulted in the denial of 

the ADA’s protection for many 

individuals with impairments who 

Congress intended to cover under the 

law. The ADAAA provides clear 

direction about what ‘‘disability’’ means 

under the ADA and how it should be 

interpreted so that covered individuals 

seeking the protection of the ADA can 

establish that they have a disability.418

Section 84.4 sets forth the definition of 

the term. The ADAAA codified the 

broad view of disability adopted by the 

Supreme Court in the section 504 case, 

School Board of Nassau County v. 

Arline.419 To ensure consistency in 

defining disability, the ADAAA 

includes a conforming amendment for 

section 504’s definition of disability to 

have the ‘‘same meaning’’ as the ADA 

definition.420

In the ADAAA, Congress made clear 

that it intended the definition of 

disability to be construed very 

broadly.421 The primary object of 

attention, Congress said, should be 

‘‘whether entities covered under the 


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422 Id. at section 2. 

423 42 U.S.C. 12101; 28 CFR 35.101(b) and 35.108. 

424See 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/civilContinued 

ADA have complied with their 

obligations’’ and whether 

discrimination has occurred, not 

whether the individual meets the 

definition of ‘‘individual with a 

disability.’’ 422 According to both the 

ADAAA purpose provisions and the 

ADA regulations, this question of 

whether an individual meets the 

definition of disability should not 

demand extensive analysis.423

§ 84.2 Application: Revisions to 

Subpart A 

Paragraph (a) states that this part 

applies to the recipient’s programs or 

activities that involve individuals in the 

United States. It does not apply to the 

recipient’s programs and activities 

outside of the United States that do not 

involve individuals with disabilities in 

the United States. 

Paragraph (b) states that the section 

504 requirements do not apply to 

ultimate beneficiaries of any program or 

activity receiving Federal financial 

assistance. An ultimate beneficiary is a 

person who is entitled to benefits from, 

or otherwise participates in, a program 

or activity. 

In paragraph (c), the Department 

proposes language addressing the issue 

of severability. The provision states that, 

if any provision at 45 CFR part 84 is 

held to be invalid or unenforceable by 

its terms, or as applied to any person or 

circumstance, it shall be construed to 

give maximum effect to the provision 

permitted by law, unless such holding 

shall be one of utter invalidity or 

unenforceability, in which case 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. The Department seeks to 

ensure that, if a specific regulatory 

provision in this rule is found to be 

invalid or unenforceable, the remaining 

provisions of the rule will remain in 

effect. 

§ 84.3 Relationship to Other Laws: 

Revisions to Subpart A 

This section states that this part does 

not invalidate or limit remedies, rights, 

and procedures of other laws that 

provide greater or equal protection for 

the rights of individuals with 

disabilities or those associated with 

them, such as the ACA and the Fair 

Housing Act. The section is 

substantially similar to the 

corresponding section in the ADA 

regulations at 28 CFR 35.103(b). 

§ 84.4 Definition of Disability: 

Revisions to Subpart A 

One of the main purposes of the 

ADAAA was to ensure that the term 

‘‘disability’’—in both the ADA and the 

Rehabilitation Act—would be construed 

broadly in favor of expansive coverage 

to the maximum extent possible. The 

ADAAA revised the meaning and 

interpretation of the definition of 

‘‘disability’’ under section 504 to ensure 

that the term is interpreted consistently 

with the ADAAA, Public Law 110–325 

(2008), and applied the same 

definitional provisions to section 504, 

id. section 7(2). In this section, the 

Department incorporates the definition 

contained in the ADA title II regulations 

at 28 CFR 35.108, with modifications 

when the terminology about a particular 

disability mentioned in the regulation 

has changed, including capitalizing 

certain impairments; substituting 

‘‘autism spectrum disorder’’ for 

‘‘autism’’; substituting ‘‘substance use 

disorder’’ for ‘‘drug addiction’’; and 

substituting ‘‘alcohol use disorder’’ for 

‘‘alcoholism.’’ In addition, long COVID, 

a condition that did not exist when the 

ADA regulations were published, has 

been added to the list of physical and 

mental impairments. 

This proposed regulation recodifies 

many of the sections in the existing rule. 

Section 84.4 in the existing rule 

contains the general prohibitions. Those 

general prohibitions now appear in 

Subpart G, General Requirements, 

§ 84.68. Proposed § 84.4 contains the 

definition of ‘‘disability.’’ Similar 

redesignations in the numbering of 

sections occur throughout the proposed 

regulation. 

Section 84.4(a)—Disability 

Proposed § 84.4(a)(1) states that, with 

respect to an individual, disability 

means ‘‘(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.’’ 

Proposed § 84.4(a)(2)(i) states 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. 

Proposed § 84.4(a)(2)(ii) provides that 

an individual can establish coverage 

using any of the three prongs, the 

‘‘actual disability’’ in the first prong, the 

‘‘record of’’ in the second prong, or the 

‘‘regarded as’’ in the third prong. The 

use of the word ‘‘actual disability’’ is a 

shorthand for the first prong and is not 

meant to suggest that individuals 

covered under the first prong have any 

more rights than those covered by the 

second or third prongs, with the 

exception that the ADAAA revised the 

ADA to expressly state that an 

individual who meets the definition of 

‘‘disability’’ solely under the ‘‘regarded 

as’’ prong is not entitled to reasonable 

modifications of policies, practices, or 

procedures. See 42 U.S.C. 12201(h)). 

Proposed § 84.4(a)(2)(iii) indicates 

that consideration of coverage under the 

first two prongs will generally be 

unnecessary except when there has been 

a request for reasonable modifications. 

Accordingly, absent a claim of a failure 

to provide reasonable modifications, 

typically it is not necessary to rely on 

the ‘‘actual disability’’ or ‘‘record of’’ 

disability prongs. Instead, in such cases, 

coverage can be evaluated exclusively 

under the ‘‘regarded as’’ prong, which 

does not require a showing of an 

impairment that substantially limits a 

major life activity or a record of such an 

impairment. However, individuals can 

proceed under the first or second prongs 

if they choose. 

Section 84.4(b)—Physical or Mental 

Impairment 

Proposed § 84.4(b)(1) provides an 

illustrative and non-exhaustive list of 

examples of physiological disorders or 

conditions, cosmetic disfigurement, or 

anatomical loss affecting one or more 

body systems that may be affected by a 

physical impairment. It also provides an 

illustrative list of mental or 

psychological disorders. Section 

84.4(b)(2) contains a non-exhaustive list 

of examples of physical or mental 

impairments. The preamble to the ADA 

title II regulations explains why there 

was no attempt made to set forth a 

comprehensive list of physical and 

mental impairments. The preamble 

states that ‘‘[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.’’ 28 CFR part 

35, app. B. This proposed section adopts 

that reasoning. 

On July 26, 2021, DOJ and HHS 

issued guidance on how ‘‘long COVID’’ 

can be a disability under the ADA, 

section 504, and Section 1557.424 The 


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425As the CDC has described, ‘‘Long COVID can 

last weeks, months, or years after COVID–19 illness 

. . .’’ See Long COVID or Post-COVID Conditions, 

Centers for Disease Control and Prevention, https:// 

www.cdc.gov/coronavirus/2019-ncov/long-termeffects/index.html#:∼:text=For%

20some%20people%2C%20Long%20COVID,

over%20different%20lengths%20of%20time (last 

updated Dec. 16, 2022). 426 534 U.S. 184 (2002). 

427 57 F. Supp. 2d 448, 453 (S.D. Tex. 1999). 

428Pimental v. Dartmouth-Hitchcock Clinic, 236 

F. Supp. 2d 177, 182–83 (D.N.H. 2002). 

guidance notes that some people 

continue to experience symptoms that 

can last months after first being infected 

with COVID–19 or may have new or 

recurring symptoms at a later time.425

This can happen even if the initial 

illness was mild. This condition, ‘‘long 

COVID,’’ can meet the definition of 

‘‘disability’’ if it, or one of the 

conditions that results from it, satisfies 

one of the three prongs of the disability 

definition. 

The guidance states that long COVID 

is a physiological condition affecting 

one or more body systems and is a 

physical or mental impairment. For 

example, some people experience lung 

damage, heart damage, kidney damage, 

neurological damage, damage to the 

circulatory system resulting in poor 

blood flow, and/or mental health 

symptoms. It, or its symptoms, can 

substantially limit one or more life 

activities. For example, a person with 

lung damage that causes shortness of 

breath, fatigue, and related effects is 

substantially limited in respiratory 

function, among other major life 

activities. The inclusion of long COVID 

as a physical or mental impairment 

aligns with DOJ’s interpretation under 

the ADA. 

Section 84.4(b)(3) states that sexual 

orientation is not included in the 

definition of physical or mental 

impairment. The Rehabilitation Act at 

29 U.S.C. 705(20)(E) contains a specific 

exclusion of individuals on the basis of 

homosexuality or bisexuality. It states 

that the term ‘‘impairment’’ does not 

include homosexuality or bisexuality. 

Therefore, the term ‘‘individual with a 

disability’’ does not include individuals 

who are homosexual or bisexual. The 

ADA likewise states that homosexuality 

and bisexuality are not impairments 

and, as such, are not disabilities. 42 

U.S.C. 12211(a). The title II regulations 

incorporate this exclusion in 28 CFR 

35.108(b)(3). 

Section 84.4(c)—Major Life Activities 

The ADAAA significantly expanded 

the range of major life activities by 

directing that ‘‘major’’ be interpreted in 

a more expansive fashion than 

previously. It specified that major life 

activities include major bodily 

functions, and provided non-exhaustive 

lists of examples of major life activities. 

Proposed § 84.4(c) incorporates the title 

II regulation at 28 CFR 35.108(c). ‘‘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. 

Proposed § 84.2(c)(1)(i) and (ii) list 

examples of major life activities. The 

absence of a particular life activity or 

bodily function from the lists should not 

create a negative implication as to 

whether an activity or function is a 

major life activity. 

Proposed § 84.4(c)(2) sets forth two 

specific principles applicable to major 

life activities. Proposed § 84.4(c)(2)(i) 

states that the term ‘‘major’’ should not 

be interpreted strictly. Proposed 

§ 84.4(c)(ii) states that whether an 

activity is a ‘‘major life activity’’ is not 

determined by reference to whether it is 

of ‘‘central’’ importance to daily life. 

This language is included to align with 

the incorporation of the ADAAA in the 

ADA regulations and the ADAAA’s 

rejection of standards articulated in 

Toyota Motor Manufacturing, Kentucky, 

Inc. v. Williams that (1) strictly 

interpreted the terms ‘‘substantially’’ 

and ‘‘major’’ in the definition of 

‘‘disability’’ to create a demanding 

standard for qualifying as disabled 

under the ADA, and that (2) required an 

individual to have an impairment that 

prevents or severely restricts the 

individual from doing activities that are 

of central importance to most people’s 

daily lives.426

Section 84.4(d)—Substantially Limits 

Proposed § 84.4(d)(1) sets forth nine 

rules of construction clarifying how to 

interpret the meaning of ‘‘substantially 

limits’’ when determining whether an 

individual’s impairment substantially 

limits a major life activity. The language 

in these provisions reflects the rules of 

construction that Congress provided in 

the ADAAA. 

Proposed § 84.4(d)(1)(i) states that the 

term ‘‘substantially limits’’ should be 

construed broadly in favor of expansive 

coverage to the maximum extent 

permitted by section 504. This is not 

meant to be a demanding standard. 

Proposed § 84.4(d)(1)(ii) states that the 

primary object of attention should be 

whether entities have complied with 

their obligations and whether 

discrimination occurred, not the extent 

to which the impairment substantially 

limits a major life activity. Thus, the 

threshold issue of whether an 

impairment substantially limits a major 

life activity should not demand 

extensive analysis. 

Proposed § 84.4(d)(1)(iii) indicates 

that an impairment that substantially 

limits just one major life activity is 

sufficient to be considered a 

substantially limiting impairment. For 

example, an individual seeking to 

establish coverage need not show a 

substantial limit in the ability to learn 

if that individual is substantially limited 

in another major life activity, such as 

walking or the functioning of the 

nervous or endocrine systems. The 

proposed section also is intended to 

clarify that where the major life activity 

is something that may include a range 

of different activities (such as manual 

tasks), the ability to perform some of 

those tasks does not preclude a finding 

that the person is substantially limited 

in the major life activity. For example, 

an individual with cerebral palsy could 

have the capacity to perform certain 

manual tasks and be unable to perform 

others. Such an individual still has a 

substantial limitation in the ability to 

carry out the ‘‘major life activity’’ of 

performing manual tasks. 

Proposed § 84.4(d)(1)(iv) states that an 

impairment that is episodic or in 

remission is a disability if it would 

substantially limit a major life activity 

when active. This section is intended to 

reject the reasoning of court decisions 

concluding that certain individuals with 

certain conditions—such as epilepsy or 

post-traumatic stress disorder—were not 

protected by the ADA because their 

conditions were episodic or 

intermittent. 

The legislative history provides that 

‘‘[t]his . . . rule of construction thus 

rejects the reasoning of the courts in 

cases like Todd v. Academy Corp., 

where the court found that the 

plaintiff’s epilepsy, which resulted in 

short seizures during which the plaintiff 

was unable to speak and experienced 

tremors, was not sufficiently limiting, at 

least in part because those seizures 

occurred episodically.427 It similarly 

rejects the results reached in cases [such 

as Pimental v. Dartmouth-Hitchcock 

Clinic,] where the courts have 

discounted the impact of an impairment 

[such as cancer] that may be in 

remission as too short-lived to be 

substantially limiting.428 It is thus 

expected that individuals with 

impairments that are episodic or in 

remission (e.g., epilepsy, post-traumatic 

stress disorder, multiple sclerosis, 

cancer) will be able to establish 


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429H.R. Rep. No. 110–730, pt. 2, at 19–20 (2008) 

(House Committee on the Judiciary). 

430See Public Law 110–325, sec. 2(b)(4)–(5); see 

also 154 Cong. Rec. S8841 (daily ed. Sept. 16, 2008) 

(Statement of the Managers) (‘‘This bill lowers the 

standard for determining whether an impairment 

constitute[s] a disability and reaffirms the intent of 

Congress that the definition of disability in the ADA 

is to be interpreted broadly and inclusively.’’). 

coverage if, when active, the 

impairment or the manner in which it 

manifests (e.g., seizures) substantially 

limits a major life activity.’’ 429 This 

language incorporates the ADAAA’s 

rejection of court decisions finding that 

individuals with certain conditions 

such as epilepsy or post-traumatic stress 

disorder were not protected because 

their conditions were episodic or in 

remission. 

Proposed § 84.4(d)(1)(v) states that 

determinations as to whether an 

impairment substantially limits a major 

life activity should be based on a 

comparison to most people in the 

general population. The impairment 

does not need to prevent, or 

significantly or severely restrict an 

individual from performing a major life 

activity to be considered substantially 

limiting. For example, an individual 

with the physical impairment of carpal 

tunnel syndrome can demonstrate that 

the impairment substantially limits the 

major life activity of writing even if the 

impairment does not prevent or severely 

restrict the individual from writing. 

However, not every impairment will 

constitute a disability within the 

meaning of this section. 

Proposed § 84.4(d)(1)(vi) states that 

determination as to whether an 

impairment substantially limits a major 

life activity requires an individualized 

assessment. Additionally, the paragraph 

requires that, in making this assessment, 

the term ‘‘substantially limits’’ shall be 

interpreted and applied to require a 

standard of functional limitation that is 

lower than that the standard applied 

prior to the ADAAA. These rules of 

construction reflect Congress’s concern 

that prior to the adoption of the 

ADAAA, courts were using too high a 

standard to determine whether an 

impairment substantially limited a 

major life activity.430

Proposed § 84.4(d)(1)(vii) states that 

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 does not usually require 

scientific, medical, or statistical 

evidence. This section seeks to prevent 

an overbroad, burdensome, and 

generally unnecessary requirement on 

individuals seeking accommodations or 

modifications. Other types of evidence 

that are less onerous to collect, such as 

statements or affidavits of affected 

individuals, school records, or 

determinations of disability status under 

other statutes should, in most cases, be 

considered adequate to establish that an 

impairment is substantially limiting. 

However, nothing in this paragraph is 

intended to prohibit or limit the 

presentation of scientific, medical, or 

statistical evidence where appropriate. 

Proposed § 84.4(d)(1)(viii) prohibits 

any consideration of the ameliorative 

effects of mitigating measures when 

determining whether an individual’s 

impairment substantially limits a major 

life activity, except for the ameliorative 

effects of ordinary eyeglasses or contact 

lenses. The determination as to whether 

an individual’s impairment 

substantially limits a major life activity 

is unaffected by an individual’s choice 

to forego mitigating measures. For 

individuals who do not use a mitigating 

measure (including, for example, 

medication or auxiliary aids and 

services that might alleviate the effects 

of an impairment), the availability of 

such measures has no bearing on 

whether the impairment substantially 

limits a major life activity. 

Proposed § 84.4(d)(1)(ix) states that 

the six-month ‘‘transitory’’ part of the 

‘‘transitory and minor’’ exception in 

§ 84.4(f)(2), the ‘‘regarded as’’ prong of 

the definition, does not apply to the 

‘‘actual disability’’ or ‘‘record of’’ prongs 

of the definition. 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. Whether an impairment is 

both ‘‘transitory and minor’’ is a 

question of fact that is dependent upon 

individual circumstances. 

Proposed § 84.4(d)(2), Predictable 

assessments, states that the rules of 

construction in this section are intended 

to provide a generous and expansive 

application of the prohibition on 

discrimination. Specific rules of 

construction are contained in 

subsections discussing the definition of 

‘‘disability,’’ § 84.4(a)(2); ‘‘major life 

activities,’’ § 84.4(c)(2); and 

‘‘substantially limits,’’ § 84.4(d)(1). 

Proposed § 84.4(d)(2)(ii) states that the 

individualized assessment of some 

types of impairments will, in virtually 

all cases, result in a determination of 

coverage under the first prong of the 

definition (‘‘actual disability’’) or the 

second prong (‘‘record of’’). Therefore, 

with respect to these types of 

impairments, the necessary 

individualized assessment should be 

particularly simple and straightforward 

and should not demand extensive 

analysis. 

Proposed § 84.4(d)(2)(iii) contains a 

non-exhaustive list of eleven types of 

impairments and the major life activity 

limited by those impairments. The list 

illustrates impairments that virtually 

always will result in a substantial 

limitation of one or more major life 

activities. It is consistent with the Equal 

Employment Opportunity Commission’s 

(EEOC) predictable assessment list at 29 

CFR 1630.2(g)(3)(iii), except that this 

section adds traumatic brain injury to 

the list. The section is intended to 

provide clear, strong, consistent, 

enforceable standards. 

The absence of any particular 

impairment from the list of examples of 

predictable assessments does not 

indicate that the impairment should be 

subject to undue scrutiny. Also, the 

listed impairments may substantially 

limit additional major life activities not 

explicitly mentioned. 

Proposed § 84.4(d)(3), Condition, 

manner, or duration, provides guidance 

on determining whether an individual is 

substantially limited in a major life 

activity. The determination is intended 

to be an appropriate threshold issue but 

not an onerous burden. However, 

individuals can still offer evidence 

needed to establish that their 

impairment is substantially limiting if 

they so desire. While condition, 

manner, and duration are not required 

factors that must be considered, to the 

extent that such factors may be useful or 

relevant, some or all of the factors may 

be considered. However, evidence 

relating to each of these factors often 

will not be necessary to establish 

coverage. 

Proposed § 84.4(d)(3)(i) states that it 

may be useful 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. 

Proposed § 84.4(d)(3)(ii) sets forth 

examples of the types of evidence that 

might demonstrate condition, manner, 

or duration limitations, including the 

way that an impairment affects the 

operation of a major bodily function, the 

difficulty or effort required to perform a 

major life activity, the pain experienced 

when performing a major life activity, 

and the length of time it takes to 

perform a major life activity. The 

section clarifies that the nonameliorative effects of mitigating 

measures may be taken into account to 


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demonstrate the impact of an 

impairment on a major life activity. 

These non-ameliorative effects could 

include negative side effects of 

medicine, burdens associated with 

following a particular treatment 

regimen, and complications arising from 

surgery. 

An impairment may substantially 

limit the ‘‘condition’’ or ‘‘manner’’ in 

which a major life activity can be 

performed in a number of ways. For 

example, it may refer to how the 

individual performs a major life activity, 

e.g., the condition or manner under 

which a person with an amputated hand 

performs manual tasks will likely be 

more cumbersome than the way that 

most people in the general population 

would perform the same tasks. The 

terms may also describe how 

performance of a major life activity 

affects an individual with an 

impairment. For example, an individual 

whose impairment causes more pain or 

fatigue than most people would 

experience when performing that major 

life activity may be substantially 

limited. The condition or manner under 

which someone with coronary artery 

disease performs the major life activity 

of walking would be substantially 

limited if the individual experiences 

shortness of breath and fatigue when 

walking distances that most people 

could walk without experiencing such 

effects. 

Condition or manner may refer to the 

extent to which a major life activity, 

including a major bodily function, can 

be performed. In some cases, the 

condition or manner under which a 

major bodily function can be performed 

may be substantially limited when the 

impairment causes the operation of a 

bodily function to over-produce or 

under-produce in a harmful fashion. For 

example, the pancreas, which is part of 

the endocrine system, of a person with 

type 1 diabetes does not produce 

sufficient insulin. For that reason, 

compared to most people in the general 

population, the impairment of diabetes 

substantially limits the major bodily 

functions of endocrine function and 

digestion. 

‘‘Duration’’ refers to the length of time 

an individual can perform a major life 

activity or the length of time it takes an 

individual to perform a major life 

activity, as compared to most people in 

the general population. For example, a 

person whose back or leg impairment 

precludes them from standing for more 

than two hours without significant pain 

would be substantially limited in 

standing, because most people can stand 

for more than two hours without 

significant pain. Some impairments, 

such as Attention-Deficit/Hyperactivity 

Disorder (ADHD) may have two 

different types of impact on duration 

considerations. ADHD frequently affects 

both an ability to sustain focus for an 

extended period of time and the speed 

with which someone can process 

information. Each of these durationrelated concerns could demonstrate that 

someone with ADHD, as compared to 

most people in the general population, 

takes longer to complete major life 

activities such as reading, writing, 

concentrating, or learning. 

Proposed § 84.4(d)(3)(iii) states that in 

determining whether an individual has 

a disability under the ‘‘actual disability’’ 

or ‘‘record of’’ prongs, the focus should 

be 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 

of the major life activities of reading, 

writing, speaking, or learning because of 

the additional time or effort that he or 

she must spend to read, speak, write, or 

learn compared to most people in the 

general population. 

Proposed § 84.4(d)(3)(iv) clarifies that 

analysis of condition, manner, or 

duration will not always be necessary, 

particularly with respect to certain 

impairments that can easily be found to 

substantially limit a major life activity 

such as those included in the list of 

impairments contained in 

§ 84.4(d)(2)(iii). However, should an 

individual seeking coverage under the 

first or second prong wish to offer 

evidence establishing that their 

impairment is substantially limiting, 

they should be permitted to do so. 

Proposed § 84.4(d)(1)(viii) described 

earlier makes clear that ameliorative 

effects of mitigating measures must not 

be considered when determining 

whether an impairment substantially 

limits a major life activity except that 

the ameliorative effects of ordinary 

eyeglasses or contact lenses must be 

considered. Proposed § 84.4(d)(4) 

provides a non-exclusive list of 

mitigating measures that may not be 

considered. As in § 84.4(d)(1)(viii), this 

section reiterates the exception for 

eyeglasses or contact lenses, stating that 

mitigating measures include ‘‘lowvision devices,’’ defined as devices that 

magnify, enhance, or otherwise augment 

a visual image, but not including 

ordinary eyeglasses or contact lenses. 

The absence of any particular measure 

from this list should not convey a 

negative implication as to whether it is 

a mitigating measure. 

Section 84.4(e)—Has a Record of Such 

an Impairment 

Proposed § 84.4(e)(1) states that an 

individual meets the second prong of 

the definition of disability, the ‘‘record 

of’’ prong, 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. An example of the first 

group (those who have a history of an 

impairment) is a person with a history 

of mental or emotional illness or cancer 

who is denied entry to a program based 

on their record of disability. An 

example of the second group (those who 

have been misclassified as having an 

impairment) is an individual who does 

not have an intellectual or 

developmental disability, but has been 

misclassified as having that disability. 

There could be a violation of § 84.4(e)(1) 

if a recipient acts based on a ‘‘record of’’ 

disability. Proposed § 84.4(e)(2) states 

that whether an individual meets this 

prong shall be construed broadly to the 

maximum extent permitted by section 

504. The determination should not 

demand extensive analysis. 

There are many types of records that 

could potentially contain information 

demonstrating a record of an 

impairment, including but not limited 

to, education, medical, or employment 

records. However, past history need not 

be reflected in a specific document. Any 

evidence that an individual has a past 

history of an impairment that 

substantially limited a major life activity 

is all that is needed to establish 

coverage under this prong. An 

individual can meet this prong even if 

the recipient does not specifically know 

about the relevant record. However, the 

individual with a ‘‘record of’’ a 

substantially limiting impairment must 

prove that the recipient discriminated 

on the basis of the record of a disability. 

Individuals who are covered under 

the ‘‘record of’’ prong may be covered 

under the first prong of the definition of 

‘‘disability’’ as well. This is because an 

individual with an impairment that is 

episodic or in remission can be 

protected under the first prong if the 

impairment would be substantially 

limiting when active. For example, a 

person with cancer that is in remission 

is covered under the first ‘‘actual 

disability’’ prong because he has an 

impairment that would substantially 

limit normal cell growth when active. 

He also is covered under the ‘‘record of’’ 

prong because of his history of having 

had an impairment that substantially 

limited normal cell growth. 

Proposed § 84.4(e)(3) provides that an 

individual who falls within this prong 


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431 480 U. S. 273 (1987). 

432 Id. at 283. 

433 527 U.S. 471, 489 (1999). 

434 42 U.S.C. 12102(3)(A). 

435See H.R. Rep. No. 110–730, pt. 2, at 18 (2008). 436 42 U.S.C. 12211. 

may be entitled reasonable 

modifications. For example, a student 

with a record of an impairment that 

previously was substantially limiting, 

but no longer substantially limits a 

major life activity, may need permission 

to miss a class or have a schedule 

change as a reasonable modification that 

would permit him or her to attend 

follow-up or monitoring appointments 

from a health care provider. 

Section 84.4(f)—Is Regarded as Having 

Such an Impairment 

The third prong of the definition of 

disability, ‘‘regarded as having such an 

impairment,’’ was included in the ADA 

specifically to protect individuals who 

might not meet the first two prongs of 

the definition but were subject to 

adverse decisions based upon 

unfounded concerns, mistaken beliefs, 

fears, myths, or prejudices about 

persons with disabilities. 42 U.S.C. 

12102(3). The third prong was later 

amended by the ADAAA. Consistent 

with this amended version, proposed 

§ 84.4(f)(1) states that an individual is 

regarded as having 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. 

The rationale for this prong was 

articulated by the Supreme Court in a 

case involving section 504, School 

Board of Nassau County v. Arline.431

The Court noted that although an 

individual may have an impairment that 

does not diminish their physical or 

mental capabilities, it could 

‘‘nevertheless substantially limit that 

person’s ability to work as a result of the 

negative reactions of others to the 

impairment.’’ 432 Thus, individuals 

seeking section 504 protection under 

this third prong only had to show that 

some action prohibited by the statute 

was taken because of an actual or 

perceived impairment. At the time of 

the Arline decision, there was no 

requirement that the individual 

demonstrate that they, in fact had or 

were perceived to have, an impairment 

that substantially limited a major life 

activity. For example, if a childcare 

center refused to admit a child with 

burn scars because of the presence of 

those scars, then the childcare center 

regarded the child as an individual with 

a disability, regardless of whether the 

child’s scars substantially limited a 

major life activity. 

In Sutton v. United Air Lines, Inc., the 

Supreme Court significantly narrowed 

application of this prong, holding that 

individuals who asserted coverage 

under the ‘‘regarded as’’ prong had to 

establish either that the covered entity 

mistakenly believed that the individual 

had a physical or mental impairment 

that substantially limited a major life 

activity, or that the covered entity 

mistakenly believed that ‘‘an actual, 

nonlimiting impairment substantially 

limit[ed] a major life activity’’ when in 

fact the impairment was not so 

limiting.433 Congress expressly rejected 

this standard in the ADAAA by 

amending the ADA to clarify that it is 

sufficient for an individual to establish 

that the covered entity regarded him or 

her as having an impairment, regardless 

of whether the individual actually has 

the impairment or whether the 

impairment constitutes a disability 

under the Act.434 This amendment 

restores Congress’s intent to allow 

individuals to establish coverage under 

the ‘‘regarded as’’ prong by showing that 

they were treated adversely because of 

an actual or perceived impairment 

without having to establish the covered 

entity’s beliefs concerning the severity 

of the impairment.435

This clarification of the ‘‘regarded as’’ 

prong by the ADAAA responded 

primarily to narrow interpretations of 

the ADA but ensured that the same 

amendments were made to 504 since the 

definitions were intended to be the 

same. 

Thus, it is not necessary for an 

individual to demonstrate that a 

recipient perceived him as substantially 

limited in the ability to perform a major 

life activity to meet the ‘‘regarded as’’ 

requirements. Nor is it necessary to 

demonstrate that the impairment relied 

on by a recipient is (in the case of an 

actual impairment) or would be (in the 

case of a perceived impairment) 

substantially limiting for an individual 

to be ‘‘regarded as having such an 

impairment.’’ In short, to be covered 

under this prong, an individual is not 

subject to any functional test. The 

concepts of ‘‘major life activities’’ and 

‘‘substantial limitation’’ are not relevant 

in evaluating whether an individual 

meets this prong. 

Proposed § 84.4(f)(2) states that an 

individual is not ‘‘regarded as’’ having 

an impairment if the recipient 

demonstrates that the impairment is, 

objectively, both ‘‘transitory’’ and 

‘‘minor.’’ It is not enough for a recipient 

to simply demonstrate that it 

subjectively believed that the 

impairment was transitory and minor; 

rather, the recipient must demonstrate 

that it 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. This section makes clear 

that the ‘‘transitory and minor’’ 

exception to a claim under this prong is 

a defense to a claim of discrimination 

and not part of the individual’s prima 

facie case. For example, an individual 

with a minor back injury could be 

‘‘regarded as’’ an individual with a 

disability if the back impairment lasted 

or was anticipated to last more than six 

months. 

The relevant inquiry is whether the 

actual or perceived impairment is 

objectively ‘‘transitory and minor,’’ not 

whether the recipient claims it 

subjectively believed the impairment 

was transitory or minor. Moreover, as an 

exception to the general rule for broad 

coverage under the ‘‘regarded as’’ prong, 

this limitation on coverage should be 

construed narrowly. For example, a 

school that expelled a student whom it 

believes has Bipolar Disorder cannot 

take advantage of this exception by 

asserting that it believed the student’s 

impairment was transitory and minor, 

because Bipolar Disorder is not 

objectively transitory and minor. It is 

important to note that the six-month 

‘‘transitory’’ part of the ‘‘transitory and 

minor’’ exception does not apply to the 

‘‘actual disability’’ or ‘‘record of’’ prongs 

of the disability definition. 

Proposed § 84.4(f)(3) provides that an 

individual who is ‘‘regarded as’’ having 

an impairment does not establish 

liability based on that showing alone. 

Instead, the individual must prove that 

the recipient discriminated on the basis 

of disability within the meaning of 

section 504. This provision was 

intended to make clear that to establish 

liability, an individual must establish 

coverage as a person with a disability, 

as well as establish that they had been 

subjected to an action prohibited by 

section 504. 

Section 84.4(g)—Exclusions 

Proposed § 84.4(g), is taken directly 

from the Rehabilitation Act, 29 U.S.C. 

705(20)(F), and is consistent with 

similar exclusions contained in the 

ADA.436 The section states that the term 

‘‘disability’’ does not include: 


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437Williams v. Kincaid, 45 F. 4th 759 (4th Cir. 

2022), cert. denied, 600 U.S. l(U.S. June 30, 

2023)(No. 22–633). 

438 Id. at 780. 

439 Id. at 769. 

440 Id. at 773–774 (citing 42 U.S.C. 12211(b)); see 

also id. at 770–772. 

441 Id. at 769–70. 

442 Id. at 773. 

(1) transvestism, transsexualism, 

pedophilia, exhibitionism, voyeurism, 

gender identity disorders not resulting 

from physical impairments, or other 

sexual behavior disorders; 

(2) compulsive gambling, 

kleptomania, or pyromania; or 

(3) psychoactive substance use 

disorders resulting from current illegal 

use of drugs. 

The issue of gender identity disorders 

was recently addressed by the Fourth 

Circuit in Williams v. Kincaid, a case 

brought under both section 504 and the 

ADA.437

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.’’ 438 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. Under the court’s 

reasoning, gender dysphoria is not 

included in the scope of ‘‘gender 

identity disorder’’ and is thus not 

excluded from coverage under the ADA 

or section 504.439 Alternatively, the 

court held that even if gender dysphoria 

were a gender identity disorder, the 

exclusion would not apply in this case 

because the plaintiff’s complaint 

‘‘amply supports [the] inference[]’’ that 

her gender dysphoria ‘‘result[s] from a 

physical impairment.’’.440

Recognizing ‘‘Congress’ express 

instruction that courts construe the 

ADA in favor of maximum protection 

for those with disabilities,’’ 441 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.’’ 442 The Department agrees 

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. 

§ 84.10 Definitions: Revisions to 

Subpart A 

Proposed § 84.10 contains the 

definitions. These definitions are 

revised to correspond to the ADA title 

II regulations, to delete terminology that 

is obsolete, to revise or add certain 

terms to incorporate statutory changes 

to the Rehabilitation Act, to add terms 

used in new sections specific to the 

Department, and to make other minor 

edits. 

To ensure consistency of terminology 

between section 504 and title II of the 

ADA and include additional terms that 

are needed in the proposed rule, the 

Department is proposing to add 

definitions of the following terms: 

‘‘2004 ADA Accessibility Guidelines 

(ADAAG),’’ ‘‘2010 Standards,’’ ‘‘ADA,’’ 

‘‘Architectural Barriers Act,’’ ‘‘Archived 

web content,’’ ‘‘Auxiliary Aids and 

Services,’’ ‘‘Companion,’’ ‘‘Conventional 

electronic documents,’’ ‘‘Current illegal 

use of drugs,’’ ‘‘Direct threat,’’ 

‘‘Disability,’’ ‘‘Drug,’’ ‘‘Existing facility,’’ 

‘‘Foster care, ’’ ‘‘Illegal use of drugs,’’ 

‘‘Individual with a disability,’’ 

‘‘Kiosks,’’ ‘‘Medical diagnostic 

equipment,’’ ‘‘Mobile applications 

(apps),’’ ‘‘Most integrated setting,’’ 

‘‘Other power-driven mobility device,’’ 

‘‘Parents,’’ ‘‘Prospective parents,’’ 

‘‘Qualified individual with a disability,’’ 

‘‘Qualified interpreter,’’ ‘‘Qualified 

reader,’’ ‘‘Service animal,’’ ‘‘Standards 

for Accessible Medical Diagnostic 

Equipment,’’ ‘‘State,’’ ‘‘Ultimate 

beneficiary,’’ ‘‘Video remote interpreting 

(VRI) services,’’ ‘‘WCAG 2.1,’’ ‘‘Web 

content,’’ and ‘‘Wheelchair.’’ 

Terms added without change from the 

title II ADA regulations are: ‘‘2004 ADA 

Accessibility Guidelines,’’ ‘‘2010 

Standards,’’ ‘‘Auxiliary aids and 

services,’’ ‘‘Current illegal use of drugs,’’ 

‘‘Direct threat,’’ ‘‘Disability,’’ ‘‘Drug,’’ 

‘‘Existing facility,’’ ‘‘Facility,’’ ‘‘Illegal 

use of drugs,’’ ‘‘Individual with a 

disability,’’ ‘‘Other power-driven 

mobility device,’’ ‘‘Qualified individual 

with a disability,’’ ‘‘Qualified 

interpreter,’’ ‘‘Qualified reader,’’ 

‘‘section 504,’’ ‘‘Service animal,’’ 

‘‘State,’’ ‘‘Video Remote Interpreting 

(VRI),’’ and ‘‘Wheelchair.’’ 

Terms added without change from the 

Department of Justice title II NPRM, 

‘‘Nondiscrimination on the Basis of 

Disability: Accessibility of Web 

Information and Services of State and 

Local Government Entities’’ are: 

‘‘Archived web content,’’ ‘‘Conventional 

electronic documents,’’ ‘‘Mobile 

applications (apps),’’ ‘‘WCAG 2.1,’’ and 

‘‘Web content.’’ 

The Department proposes to remove 

‘‘The Act,’’ ‘‘Education of the 

Handicapped Act,’’ ‘‘Handicap,’’ 

‘‘Handicapped person,’’ and ‘‘Qualified 

handicapped person.’’ The Department 

proposes to retain and make minor 

revisions to the following terms: 

‘‘Applicant for assistance,’’ (changed to 

‘‘Applicant’’), ‘‘Federal financial 

assistance,’’ ‘‘Program or activity,’’ and 

‘‘section 504.’’ 

The definition of ‘‘Federal financial 

assistance’’ in the existing rule states 

that Federal financial assistance means 

‘‘any grant, cooperative agreement, loan, 

contract (other than a procurement 

contract or a contract of insurance or 

guaranty) . . . .’’ The proposed revision 

adds ‘‘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. 

Finally, the Department proposes to 

retain with no revisions the terms 

‘‘Recipient,’’ ‘‘Director,’’ and 

‘‘Department.’’ 

New definitions of note are discussed 

below. 

‘‘Archived Web Content’’ 

The Department proposes to add a 

definition for ‘‘archived web content’’ to 

proposed § 84.10. The proposed 

definition defines ‘‘archived web 

content’’ as ‘‘web content that (1) is 

maintained 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.’’ 

The definition is meant to capture web 

content that, while outdated or 

superfluous, is maintained unaltered in 

a dedicated area on a recipient’s website 

for historical, reference, or other similar 

purposes, and the term is used in the 

proposed exceptions set forth in § 84.85. 

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. For 

example, recipients sometimes use 

vendors to create and host their web 

content. Such content would also be 

covered by this rule. 

‘‘Auxiliary Aids and Services’’ 

This section, added to be consistent 

with the title II regulations, sets forth a 

non-exhaustive list of auxiliary aids and 

services that reflect the latest technology 

and devices available in some places 

that may provide effective 


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443The voice, text, and video-based 

communications included in the definition for 

auxiliary aids and services include 

Telecommunication Relay Services (such as 

internet Protocol Relay Services) and Video Relay 

Services. 444 480 U.S. 273 (1987). 

445 28 CFR pt. 35, app. B (1991) (addressing 

§ 35.139). 

446 Id. 

447 Id. 

communication in some situations.443

The Department does not intend to 

require that every recipient provide 

every device or all new technology at all 

times as long as the communication that 

is provided is as effective as 

communication with others. 

‘‘Companion’’ 

This phrase, added to be consistent 

with the title II regulations, 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’’ 

The Department proposes to add a 

definition for ‘‘conventional electronic 

documents.’’ The proposal defines 

‘‘conventional electronic documents’’ as 

‘‘web content or content in mobile apps 

that is in the following electronic file 

formats: portable document formats 

(PDFs), word processor file formats, 

presentation file formats, spreadsheet 

file formats, and database file formats.’’ 

The definition thus provides an 

exhaustive list of electronic file formats 

that constitute conventional electronic 

documents. Examples of conventional 

electronic documents include: Adobe 

PDF files (i.e., portable document 

formats), Microsoft Word files (i.e., 

word processor files), Apple Keynote or 

Microsoft PowerPoint files (i.e., 

presentation files), Microsoft Excel files 

(i.e., spreadsheet files), and FileMaker 

Pro or Microsoft Access files (i.e., 

database files). 

The term ‘‘conventional electronic 

documents’’ is intended to describe 

those documents created or saved as an 

electronic file that are commonly 

available on recipients’ websites and 

mobile apps in either an electronic form 

or as printed output. The term is 

intended to capture documents where 

the version posted by the recipient is 

not open for editing by the public. For 

example, if a recipient maintains a 

Word version of a flyer on its website, 

that would be a conventional electronic 

document. A third party could 

technically download and edit that 

Word document, but their edits would 

not impact the ‘‘official’’ posted version. 

Similarly, a Google Docs file that does 

not allow others to edit or add 

comments in the posted document 

would be a conventional electronic 

document. The term ‘‘conventional 

electronic documents’’ is used in 

proposed § 84.85(b) to provide an 

exception for certain electronic 

documents created by or for a recipient 

that are available on a recipient’s 

website before the compliance date of 

this rule and in proposed § 84.85(g) to 

provide an exception for certain 

individualized, password-protected 

documents, and is addressed in more 

detail in the discussion regarding 

proposed § 84.85(b) and (g). 

• Definitions (conventional electronic 

documents) 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 feasible 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? 

‘‘Current Illegal Use of Drugs’’ 

This phrase, added to be consistent 

with the title II regulations, means 

illegal use of drugs that occurred 

recently enough to justify a reasonable 

belief that the person’s drug use is 

current or that continuing use is a real 

and ongoing problem. 

‘‘Direct Threat’’ 

The definition of ‘‘direct threat’’ 

under section 504 was added to be 

consistent with the title II regulations 

and with the Supreme Court case of 

School Board of Nassau County v. 

Arline,444 which states that a ‘‘direct 

threat’’ is 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. 

In Arline, a case interpreting section 

504, the Supreme Court recognized that 

there is a need to balance the interests 

of people with disabilities against 

legitimate concerns for public safety. 

Although 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. 

The determination that a person poses 

a direct threat to the health or safety of 

others may not be based on 

generalizations or stereotypes about the 

effects of a particular disability.445 It 

must be based on an individualized 

assessment, based on reasonable 

judgment that relies on current medical 

evidence or on the best available 

objective evidence, to determine: 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 will mitigate 

the risk.446 This is the test established 

by the Supreme Court in Arline. Such 

an inquiry is essential if the law is to 

achieve its goal of protecting disabled 

individuals from discrimination based 

on prejudice, stereotypes, or unfounded 

fear, while giving appropriate weight to 

legitimate concerns, such as the need to 

avoid exposing others to significant 

health and safety risks. Making this 

assessment will not usually require the 

services of a physician. Sources for 

medical knowledge include guidance 

from public health authorities, such as 

the U.S. Public Health Service, the 

Centers for Disease Control and 

Prevention (CDC), and the National 

Institutes of Health, including the 

National Institute of Mental Health.447

Specific provisions concerning 

‘‘direct threat’’ are derived from the 

ADA title II regulations and are 

contained in the proposed Direct threat 

section at § 84.75. 

‘‘Disability’’ 

The ADAAA was passed to revise the 

meaning and interpretation of the 

definition of ‘‘disability’’ and to ensure 

that the definition is broadly construed 

and applied without extensive analysis. 

The definition of ‘‘disability’’ can be 

found at § 84.4. With respect to 

employment, the definition of 

‘‘disability’’ is found at the regulations 

of the EEOC at 29 CFR 1630.2. 

‘‘Foster Care’’ 

The term 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 

preadoptive 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 


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448 29 U.S.C. 794f. 

449 28 CFR pt. 35 app. B, 690 (2015) (addressing 

§ 35.130(d)). 

450U.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. 12, 2023). 451 42 U.S.C. 675. 

subsidy payments are being made prior 

to the finalization of an adoption, or 

whether there is Federal matching of 

any payments that are made. Foster care 

providers include individuals and 

institutions. The proposed rule makes 

clear where the language applies 

specifically to foster parents. The 

proposed definition is consistent with 

the definition of ‘‘foster care’’ in the 

Department’s title IV–E foster care 

program regulations at 45 CFR 1355.20. 

‘‘Illegal Use of Drugs’’ 

The term, added for consistency with 

title II of the ADA, 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 et seq.). The term 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. Specific 

provisions are contained in the Illegal 

use of drugs section at § 84.69. 

The definitions section includes 

‘‘drug,’’ which means a controlled 

substance, as defined in schedules I 

through V of section 202 of the 

Controlled Substances Act (21 U.S.C. 

812 et seq.). Also defined is ‘‘current 

illegal use of drugs’’ which means the 

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. 

‘‘Kiosks’’ 

The Department proposes to add a 

definition of ‘‘kiosks.’’ Kiosks are selfservice transaction machines made 

available by recipients at set physical 

locations for the independent use of 

patients or program participants in 

health or human service programs or 

activities. The devices usually 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 requested 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. These devices may 

rely on web content or mobile apps or 

may be closed functionality devices, i.e., 

devices that do not rely on web content 

or mobile apps. 

• Definitions (kiosks) 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 § 84.10 and any suggested revisions 

to it. 

‘‘Medical Diagnostic Equipment’’ 

The term ‘‘medical diagnostic 

equipment’’ (MDE) comes from Section 

510 of the Rehabilitation Act and means 

equipment used in, or in conjunction 

with, medical settings by health care 

providers for diagnostic purposes.448 It 

includes, for example, examination 

tables, examination chairs (including 

those used for eye examinations or 

procedures and for dental examinations 

or procedures), weight scales, 

mammography equipment, x-ray 

machines, and other radiological 

equipment commonly used for 

diagnostic purposes by health care 

professionals. 

‘‘Mobile Applications (Apps)’’ 

Mobile apps are software applications 

that are downloaded and designed to 

run on mobile devices such as 

smartphones and tablets. For the 

purposes of this part, mobile apps 

include, for example, native apps built 

for a particular platform (e.g., Apple 

iOS, Google Android, among others) or 

device and hybrid apps using web 

components inside native apps. 

‘‘Most Integrated Setting’’ 

The most integrated setting is 

described in Appendix B to the 

regulation implementing title II of the 

ADA as ‘‘a setting that enables 

individuals with disabilities to interact 

with nondisabled persons to the fullest 

extent possible.’’ 449 As further 

described in DOJ’s ‘‘Guidance on 

Enforcement of the Integration Mandate 

of Title II of the Americans with 

Disabilities Act and Olmstead v. L.C.,’’ 

integrated settings provide individuals 

with disabilities the opportunity to 

interact with non-disabled persons to 

the fullest extent possible; 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.450 The Department proposes 

to adopt this language as its definition 

for ‘‘most integrated setting.’’ 

• Definitions (most integrated setting) 

Question 3: The Department requests 

comment on the need to include 

additional language in the definition of 

‘‘most integrated setting.’’ 

‘‘Other Power-Driven Mobility Device’’ 

The term ‘‘other power-driven 

mobility device’’ (OPDMD) is a term of 

art coined by DOJ in its regulations 

implementing the ADA at 28 CFR 

35.104. It covers 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. Common 

OPDMD’s include golf carts, electronic 

personal assistance mobility devices 

such as the Segway®, or other mobility 

devices designed to operate in areas 

without defined pedestrian routes but 

that is not a wheelchair within the 

meaning of this section. 

‘‘Parents’’ 

The terms ‘‘parents’’ means biological 

or adoptive parents or legal guardians as 

determined by applicable State law. For 

purposes of this section, ‘‘prospective 

parents’’ means individuals who are 

seeking to become foster or adoptive 

parents. The proposed definition is 

based on the definition of ‘‘parents’’ in 

the Social Security Act title IV–E.451

‘‘Qualified Individual With a Disability’’ 

The Department proposes to replace 

the term and definition of ‘‘qualified 

handicapped person’’ with the term 

‘‘qualified individual with a disability’’ 

and the corresponding definition drawn 

from title II of the ADA. The 

introduction of the definition from the 

Department’s title II regulation will 

ensure consistency with title II of the 

ADA. Paragraph (1) states that except as 

provided in paragraph (2), a ‘‘qualified 

individual with a disability’’ is 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 the 

recipient. 

Paragraph (2) provides the definition 

of qualified individual with a disability 

in the employment context. The 

language tracks the corresponding EEOC 

provision at 29 CFR 1630.2(m) because 

the meaning of ‘‘qualified’’ is different 

in an employment context as compared 

to a nonemployment context. The 

employment portion of the definition 


lotter on DSK11XQN23PROD with PROPOSALS2
Federal Register / Vol. 88, No. 177 / Thursday, September 14, 2023 / Proposed Rules 63467 

452See W3C®, Web Content Accessibility 

Guidelines 2.1 (June 5, 2018), https://www.w3.org/ 

TR/WCAG21/ [https://perma.cc/UB8A-GG2F]. 

incorporates the EEOC definition of 

‘‘qualified,’’ thereby implementing the 

employment standards of title I of the 

ADA in accordance with section 503(b) 

of the Rehabilitation Act Amendments 

of 1992, at 29 U.S.C. 791(f). 

Paragraph (3) sets forth the definition 

with respect to childcare, preschool, 

elementary and secondary, and adult 

educational services. The definition in 

§ 84.3 of the existing regulations limits 

the definition to public preschool, 

elementary, secondary, or adult 

education services. That rule makes a 

distinction between requirements for 

recipients that operate public 

elementary and secondary education 

programs and activities (§ 84.32 and 

84.33) and recipients who provide 

private education (§ 84.39). The 

proposed rule is not retaining those 

provisions and makes no distinction 

between public and private programs or 

activities. Accordingly, the reference to 

‘‘public’’ is deleted from this definition. 

It should be noted that the application 

section at § 84.31, which is being 

retained with the addition of 

‘‘childcare,’’ states that the subpart 

applies to all preschool, elementary and 

secondary, and adult education and 

does not limit the coverage to public 

programs and activities. The 

requirement that the entity be public is 

contained only in the sections dealing 

specifically with recipients who operate 

elementary and secondary programs, 

sections that are not retained in the 

proposed rule. 

Paragraph (4) provides the definition 

with respect to postsecondary 

education. 

‘‘Qualified Interpreter’’ 

This definition is added for 

consistency with title II of the ADA. A 

qualified interpreter must be able to 

interpret effectively, accurately, and 

impartially. Qualified interpreters 

include sign language interpreters, oral 

transliterators, and cued-language 

transliterators. 

This list of interpreters is illustrative. 

Different situations require different 

types of interpreters. For example, an 

oral interpreter who has special skill 

and training to mouth a speaker’s words 

silently for individuals who are deaf or 

hard of hearing may be necessary for an 

individual who was raised orally and 

taught to read lips or was diagnosed 

with hearing loss later in life and does 

not know sign language. An individual 

who is deaf or hard of hearing may need 

an oral interpreter if the speaker’s voice 

is unclear, if there is a quick-paced 

exchange of communications (e.g., in a 

meeting), or when the speaker does not 

directly face the individual who is deaf 

or hard of hearing. A cued-speech 

interpreter functions in the same 

manner as an oral interpreter except that 

they use a hand code or cue to represent 

each speech sound. The guiding 

criterion is that the recipient must 

provide appropriate auxiliary aids and 

services to ensure effective 

communication. 

In addition to sign language 

interpreters, the illustrative list in the 

definition includes ‘‘cued-language 

transliterators’’ and ‘‘oral 

transliterators.’’ A cued-language 

transliterator is an interpreter who has 

special skill and training in the use of 

the Cued Speech system of handshapes 

and placements, along with non-manual 

information, such as facial expression 

and body language, to show auditory 

information visually, including speech 

and environmental sounds. An oral 

transliterator is an interpreter who has 

special skill and training to mouth a 

speaker’s words silently for individuals 

who are deaf or hard of hearing. 

‘‘Qualified Reader’’ 

This definition is added for 

consistency with the ADA. A qualified 

reader is a person who is able to read 

effectively, accurately, and impartially 

using any necessary specialized 

vocabulary. Failure to provide a 

qualified reader to an individual with a 

disability may constitute a violation of 

the requirement to provide appropriate 

auxiliary aids and services. 

To be ‘‘qualified,’’ a reader must be 

skilled in reading the language and 

subject matters and must be able to be 

easily understood by the individual 

with a disability. For example, if a 

reader is reading aloud the questions for 

a college microbiology examination, that 

reader, to be qualified, must know the 

proper pronunciation of scientific 

terminology used in the text, and must 

be sufficiently articulate to be easily 

understood by the individual with a 

disability for whom he or she is reading. 

‘‘Service Animal’’ 

This definition was added for 

consistency with the ADA. Service 

animals, which are limited to dogs, 

must be individually trained to do work 

or perform tasks for the benefit of an 

individual with a disability. The work 

and tasks must be directly related to the 

individual’s disability. This includes 

alerting individuals who are deaf or 

hard of hearing to the presence of 

people or sounds and providing nonviolent protection or rescue work. The 

phrase ‘‘non-violent protection’’ is used 

to exclude so-called ‘‘attack dogs’’ or 

dogs with traditional ‘‘protection 

training’’ as service animals. The crimedeterrent effect of a dog’s presence, by 

itself, does not qualify as work or tasks 

for purposes of the definition. 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 the definition. 

‘‘Standards for Accessible Medical 

Diagnostic Equipment’’ 

The Department proposes that the 

term ‘‘Standards for Accessible Medical 

Diagnostic Equipment’’ means the 

standards at 36 CFR part 1195, 

promulgated by the Architectural and 

Transportation Barriers Compliance 

Board (Access Board) under section 510 

of the Rehabilitation Act of 1973, as 

amended, found in the Appendix to 36 

CFR part 1195. 

‘‘Video Remote Interpreting Service 

(VRI)’’ 

This definition was added for 

consistency with the ADA. Video 

remote interpreting services are a means 

of providing interpreting services for 

persons who are deaf or hard of hearing 

that use video conference technology 

over dedicated lines or wireless 

technologies offering high-speed, widebandwidth video connection that 

delivers high-quality video images. 

‘‘WCAG 2.1’’ 

The Department proposes to add a 

definition of ‘‘WCAG 2.1.’’ The term 

‘‘WCAG 2.1’’ refers to the 2018 version 

of the voluntary guidelines for web 

accessibility, known as the Web Content 

Accessibility Guidelines 2.1 (WCAG). 

The W3C®, the principal international 

organization involved in developing 

standards for the web, published WCAG 

2.1 in June 2018, and it is available at 

https://www.w3.org/TR/WCAG21/.452

WCAG 2.1 is discussed in more detail 

in proposed § 84.84. 

‘‘Web Content’’ 

The Department proposes to add a 

definition for ‘‘web content’’ that is 

based on the WCAG 2.1 definition but 

is slightly less technical and intended to 

be more easily understood by the public 

generally. The Department’s proposal 

defines ‘‘web content’’ as ‘‘information 

or sensory experience—including the 

encoding that defines the content’s 

structure, presentation, and 

interactions—that is communicated to 

the user by a web browser or other 

software. Examples of web content 

include text, images, sounds, videos, 

controls, animations, and conventional 


lotter on DSK11XQN23PROD with PROPOSALS2
63468 Federal Register / Vol. 88, No. 177 / Thursday, September 14, 2023 / Proposed Rules 

453See W3C®, Web Content Accessibility 

Guidelines 2.1 (June 5, 2018), https://www.w3.org/ 

TR/WCAG21/#glossary [https://perma.cc/YB57- 

ZB8C]. 

454 29 U.S.C. 794(d). See also 29 CFR pt. 1630 

(Regulations to Implement the Equal Opportunity 

Provisions of the ADA); 29 CFR pt. 1640 

(Procedures for Coordinating the Investigation of 

Complaints or Charges of Employment 

Discrimination Based on Disability Subject to the 

Americans with Disabilities Act and section 504 of 

the Rehabilitation Act of 1973. 

electronic documents.’’ WCAG 2.1 

defines 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.’’ 453

The definition of ‘‘web content’’ 

attempts to describe the different types 

of information and experiences 

available on the web. The Department’s 

NPRM proposes to cover the 

accessibility of recipients’ web content 

available on public entities’ websites 

and web pages regardless of whether the 

web content is viewed on desktop 

computers, laptops, smartphones, or 

other devices. 

The definition of ‘‘web content’’ also 

includes the encoding used to create the 

structure, presentation, or interactions 

of the information or experiences on 

web pages that range in complexity 

from, for example, pages with only 

textual information to pages where users 

can complete transactions. Examples of 

languages used to create web pages 

include Hypertext Markup Language 

(HTML), Cascading Style Sheets (CSS), 

Python, SQL, PHP, and JavaScript. 

• Definitions (web content) Question 

4: 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.’’ 

‘‘Wheelchair’’ 

The proposed rule adopts the 

definition of wheelchair used by the 

DOJ in its ADA rules. It defines 

wheelchair as 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. 

Sections Retained 

This proposed rule is retaining 

existing sections on (1) Assurances 

(§ 84.5); (2) Remedial action, voluntary 

action, and self-evaluation (§ 84.6); and 

(3) Designation of responsible employee 

and adoption of grievance procedures 

(§ 84.7). The Notice section (§ 84.8) has 

been revised to be consistent with the 

title II regulations. It states that a 

recipient must make available to all 

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 his or her designee finds necessary to 

apprise such persons of the protections 

against discrimination assured them by 

section 504 and this part. 

It is also retaining Administrative 

requirements for small recipients, 

§ 84.9. That section states that recipients 

with fewer than 15 employees need not 

comply with the Designation of 

responsible employee and adoption of 

grievance procedures section or the 

Notice section unless the Director 

determines that compliance is 

appropriate because of a finding of a 

violation or a finding that such 

compliance will not significantly impair 

the ability of the recipient to provide 

benefits or services. 

Employment Practices: Revisions to 

Subpart B 

Proposed § 84.16 lists the general 

prohibitions in employment practices. 

This proposed rule replaces the existing 

employment section at § 84.11. 

Paragraph (a) states that no qualified 

individual with a disability shall be 

subjected to discrimination on the basis 

of disability. The Rehabilitation Act 

Amendments of 1992, Public Law 102– 

569 (Oct. 29,1992), amended title V of 

the Rehabilitation Act to apply the 

employment standards set forth in title 

I of the ADA to employment 

discrimination under section 504.454

Paragraph (b) implements this 

requirement. It states that the standards 

to be used in determining whether the 

section has been violated shall be the 

standards applied under title I of the 

ADA of 1990 and sections 501 through 

504 and 511 of the ADA, as amended 

(codified at 42 U.S.C. 12201–12204, 

12210), as implemented in the EEOC’s 

regulation at 29 CFR part 1630. This 

employment section recognizes the 

potential for jurisdictional overlap that 

exists with respect to laws prohibiting 

discrimination in employment. The 

EEOC enforces title I of the ADA and, 

under E.O. 12067, has the responsibility 

for coordinating and leading the Federal 

Government’s efforts to eradicate 

workplace discrimination. The 

Department of Labor enforces section 

503 of the Rehabilitation Act; and at 

least 25 Federal agencies that provide 

financial assistance are responsible for 

enforcing section 504 in their programs. 

Section 107 of the ADA requires that 

coordination mechanisms be developed 

in connection with the administrative 

enforcement of complaints alleging 

discrimination under title I and 

complaints alleging discrimination in 

employment in violation of the 

Rehabilitation Act. This provision 

ensures that Federal investigations of 

title II and section 504 complaints will 

be coordinated on a government-wide 

basis. 

Program Accessibility: Revisions to 

Subpart C 

Section 84.21 states that except as 

provided in § 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. This 

subpart addresses accessibility to the 

built environment with two approaches: 

(1) providing standards for new 

construction and alterations, and (2) 

applying 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. 

For example, where a recipient hospital 

contracts out certain health care 

activities to another entity, and those 

activities are inaccessible, then the 

recipient hospital may have 

impermissibly denied qualified 

individuals with disabilities the benefits 

of the programs and activities and 

subjected those individuals to 

discrimination. 

The Department’s existing rule at 

§ 84.22, which is retained in part in the 

proposed rule, states that a recipient is 

not required to make each of its existing 

facilities accessible if its program as a 

whole is accessible. 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, if 

necessary, structural changes. 

Section 84.22(a)(2), which mirrors the 

ADA title II regulation and the section 

504 regulations for federally conducted 

programs, 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 


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455Appendix A to 41 CFR 101–19.6 (July 1, 2002 

ed.), 49 FR 31528, app. A (Aug. 7, 1984). 

456For private entities subject to title III of the 

Americans with Disabilities Act, any facility 

designed and constructed for first occupancy after 

January 26, 1993, would be required to meet the 

accessibility requirements of DOJ’s 1991 

Accessibility Standards. 28 CFR 36.401. For such 

facilities for which the start of physical 

construction or alterations occurred on or after 

March 15, 2012, the facility would be required to 

meet DOJ’s 2010 Accessibility Standards. 28 CFR 

36.406(a). 

For public entities subject to title II of the 

Americans with Disabilities Act, any facility, where 

construction was commenced after January 26, 

1992, would be required to meet the accessibility 

requirements of either UFAS or the DOJ’s 1991 

Accessibility Standards, excluding the elevator 

exemption. 28 CFR 35.151(a). For such facilities 

where the physical construction commenced on or 

after March 15, 2012, the facility would be required 

to meet the accessibility requirements of DOJ’s 2010 

Accessibility Standards. 28 CFR 35.151(c). 

or activity or undue financial and 

administrative burdens. A similar 

limitation is provided in § 84.22 

(Existing facilities), § 84.81 

(Communications), § 84.88 (Web, 

mobile, and kiosk accessibility), and 

§ 84.93 (Accessible medical equipment.) 

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 undue financial and 

administrative burdens, it nevertheless 

must take any other steps necessary to 

ensure that individuals with disabilities 

receive the benefits or services provided 

by the recipient. 

It is the Department’s view that 

compliance with § 84.22(a), like 

compliance with the corresponding 

provisions of the ADA title II regulation 

and the section 504 regulations for 

federally conducted programs, would in 

most cases not result in undue financial 

and administrative burdens on 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 with § 84.22(a) 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 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 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 that the determination 

must be made by a high level official or 

senior leader who has budgetary 

authority and responsibility for making 

spending decisions. 

Section 84.22 (b), methods, is 

identical to the title II provision at 28 

CFR 35.150 (b) and, with minor 

changes, the existing section 504 

regulation at § 84.22(b). Any differences 

between this proposed section and the 

existing section are intended to be nonsubstantive. The proposed rule retains 

provisions based in the existing rule 

relating to small health, welfare, or 

other social services providers 

(§ 84.22(c)); time period for compliance 

(§ 84.22(d)); transition plan (§ 84.22(e)); 

and notice (§ 84.22(f)). 

The requirements for new 

construction and alterations, set forth in 

§ 84.23, are more stringent than § 84.22, 

which contains the requirements for 

existing facilities. Section 84.23(a)), 

Design and construction, requires each 

facility or part of a facility constructed 

by, on behalf of, or for the use of a 

recipient to be designed and constructed 

in such a manner that the facility or part 

of the facility is ‘‘readily accessible to 

and usable by’’ individuals with 

disabilities, if the construction was 

commenced after June 3, 1977. 

Section 84.23(b), Alterations, states 

that each facility or part of a facility 

constructed by, on behalf of, or for the 

use of a recipient 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 a 

manner that the altered portion is 

readily accessible and usable by 

individuals with disabilities, if the 

alteration was commenced after June 3, 

1977. 

Section 84.23(c) addresses 

accessibility standards and compliance 

dates for recipients that are public 

entities. The term ‘‘public entities’’ is 

derived from DOJ’s ADA title II 

regulation and is incorporated in 

subsection (c)(1) and means 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). Section 

84.23(d) addresses accessibility 

standards and compliance dates for 

recipients that are private entities. The 

term ‘‘private entities’’ is derived from 

DOJ’s ADA title III regulation and is 

incorporated in subsection (d)(1) and 

means any person or entity other than 

a public entity. 

Section 84.23(c)(1) states that as of 

January 18, 1991, design, construction, 

or alteration of buildings in 

conformance with sections 3–8 of the 

Uniform Federal Accessibility 

Standards (UFAS) 455 shall be deemed to 

comply with the requirements of 

§ 84.23(a). When the Department first 

issued its section 504 rule in 1977, it 

included a different standard, the ANSI 

(American National Standard Institute’s 

Specifications for Making Buildings and 

Facilities Accessible to, and Usable by, 

the Physically Handicapped), known as 

ANSI A117.1–1961(R1971). This 

standard covered facilities built or 

altered during the time period from June 

3, 1977 until January 18, 1991. In 1990, 

the Department changed its standard to 

sections 3–8 of the Uniform Federal 

Accessibility Standards (‘‘UFAS’’) and 

applied the standard to all facilities 

constructed by recipients of HHS 

funding after January 18, 1991. 

In its regulations implementing the 

ADA, DOJ adopted more up-to-date and 

comprehensive accessibility standards, 

first the 1991 ADA Accessibility 

Guidelines (ADAAG) Standards and 

then the 2010 ADAAG Standards. For 

example, the 2010 Standards contain 

requirements for children’s facilities, 

standards for a series of recreation 

facilities, higher requirements for the 

number of accessible entrances, and 

more detailed provisions on accessible 

toilet facilities. In addition, these 

Standards are written in a different 

format that follows the approach of 

private accessibility standards that are 

commonly used in state and local 

building codes. Under title II of the 

ADA, these Standards apply to all 

public entities; under title III of the 

ADA, these Standards apply to a wide 

range of private entities, including 

hospitals, the offices of health care 

providers, pharmacies, childcare 

centers, senior citizen centers, homeless 

shelters, food banks, adoption agencies, 

or other social service center 

establishments. Therefore, these 

Standards have applied to many 

recipients of HHS funding for many 

years.456

In this rule, the Department seeks to 

use the Standards currently used in the 

ADA: the 2010 Standards. The 2010 

Standards for Accessible Design consist 

of the 2004 ADAAG and the 

requirements contained in 28 CFR 

35.151. To avoid making this regulation 

overly cumbersome, the Department 

incorporates the components of the 

2010 Standards (that is, the 2004 


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457 45 CFR 84.21–22. 

458See id. 

ADAAG and 28 CFR part 151, as 

defined in § 84.10 of this rule) by 

reference. Sections (c) and (d) clarify the 

considerations for choosing between 

UFAS and the 2010 Standards for new 

construction and alterations. Unlike the 

Department’s previous provision for 

new construction in § 84.23, which used 

a ‘‘deeming’’ approach, § 84.23(c)(5) and 

(d)(5) of the amended rule, which will 

apply to physical construction or 

alterations that commence on or after 

one year from the publication date of 

the final rule in the Federal Register, 

will require recipients to comply with 

the 2010 Standards. Section 84.23(c)(2) 

and (3) and (d)(2) and (3) of the 

amended rule, which will apply to 

physical construction and alterations 

that commenced before the rule’s 

effective date, will still use the 

‘‘deeming’’ approach. Section 

84.23(c)(4) and (d)(4) of the amended 

rule, which will apply to physical 

construction or alterations that 

commence (or, in certain situations set 

forth in Section (d)(4), construction or 

alterations that are permitted) on or after 

the effective date of the final rule and 

before the date one year from the 

publication date of the final rule in the 

Federal Register, will require recipients 

to comply either with UFAS or the 2010 

Standards. This will make the 

Department’s approach under section 

504 parallel to the approach under the 

ADA. Similar to its approach in the 

existing section 504 regulation, the 

Department will allow recipients that 

are public entities to depart from 

particular technical and scoping 

requirements by the use of other 

methods where those methods provide 

equivalent or greater access to and 

usability of the building or facility. 

One of the major advantages of using 

the 2010 Accessibility Standards rather 

than UFAS is that the 2010 Standards 

have been harmonized with private 

sector codes that form the basis for 

many State and local building codes. In 

addressing building accessibility, HHS 

recipients must now comply with local 

and State building codes as well as 

UFAS—distinct bodies of regulation 

that in many instances impose 

overlapping and sometimes inconsistent 

requirements. Because the 2010 

Standards were designed to harmonize 

with other accessibility codes, HHS 

recipients will face less confusion and 

difficulty in determining how to 

undertake alterations to existing 

facilities or to construct new facilities. 

In addition, the 2010 Standards are 

much more complete, providing specific 

requirements for certain types of 

facilities, including medical care 

facilities and social service care 

establishments, and providing specific 

guidance on the types of features in 

buildings, such as standards for toilet 

rooms, assembly areas, and accessible 

routes both within a facility and from 

outside features like parking areas and 

public transportation stops. The new 

Standards also include technical 

requirements based on children’s 

dimensions and anthropometrics. 

The Department proposes that this 

new Standard will take effect on the 

effective date of this rule, which is 60 

days after the publication date in the 

Federal Register. 

To address how recipients of Federal 

financial assistance from the 

Department should address construction 

standards for projects that are being 

built during a variety of time periods, 

the proposed rule offers a detailed 

blueprint on how construction should 

proceed. The series of scenarios detailed 

in § 84.23(c) follow the approach used 

by the DOJ in its 2010 regulation 

implementing the ADA at 28 CFR 

35.151(c). 

For example, proposed § 84.23(c)(3) 

states that physical construction or 

alterations that commence after January 

18, 1991, but before the effective date of 

the final rule, will be deemed in 

compliance with the new construction 

obligation if the recipient’s construction 

meets the requirements of UFAS. Under 

proposed § 84.23(c)(4), if the 

construction commences after the 

effective date of the final rule but before 

one year from that publication date, the 

recipient will be in compliance if it 

follows either UFAS or the 2010 

Standards. (However, if the recipient is 

also covered by the ADA, it will be 

required by the ADA and the proposed 

regulation to follow the 2010 

Standards.) All new construction and 

alterations projects that start physical 

construction one year from the 

publication date in the Federal Register, 

i.e., this date for which the last 

application for a building permit is 

certified as complete, must follow the 

2010 Standards. This approach is 

necessary because of the delays that 

often occur in the construction process 

between the design process and the 

permitting and actual construction 

process. 

Program Accessibility and the ‘‘Safe 

Harbor’’ Under § 84.22(g) 

The adoption of a new standard for 

accessible buildings and facilities 

necessitates a change to the 

Department’s existing regulation for 

existing facilities. The ‘‘program 

accessibility’’ requirement in 

regulations implementing section 504 

requires that each program or activity, 

when viewed in its entirety, be readily 

accessible to and usable by individuals 

with disabilities.457 Section 504 requires 

recipients’ programs and activities to be 

accessible in their entirety, and 

recipients generally have flexibility in 

how to address accessibility issues or 

barriers as long as program access is 

achieved. Program access does not 

necessarily require a recipient to make 

each of its existing facilities accessible 

to and usable by individuals with 

disabilities, and recipients are not 

required to make structural changes to 

existing facilities where other methods 

are effective in achieving program 

access.458 Recipients do, however, have 

program access considerations that are 

independent of, but may coexist with, 

requirements imposed by new 

construction or alteration requirements 

in those same facilities. 

Where a recipient opts to alter 

existing facilities to comply with its 

program access requirements, the 

recipient must look to the accessibility 

requirements in § 84.23(c). Under the 

Department’s rule, these alterations will 

be required to comply with the 2010 

Standards. The 2010 Standards 

introduce technical and scoping 

specifications for many elements not 

covered by UFAS, the Department’s 

existing standard. In existing facilities, 

these supplemental requirements need 

to be taken into account by a recipient 

in ensuring program access. Also 

included in the 2010 Standards are 

revised technical and scoping 

requirements for a number of elements 

that were addressed in earlier standards. 

These revised requirements reflect 

incremental changes that were added 

either because of additional study by the 

Access Board or to harmonize Federal 

access requirements with those of 

private model codes. 

Although the program accessibility 

standard offers recipients a level of 

discretion in determining how to 

achieve program access, in the NPRM, 

the Department proposes to follow the 

lead established by DOJ in its ADA 

regulations and include an addition to 

the existing facilities requirements, a 

new paragraph, § 84.22(g), entitled ‘‘Safe 

harbor,’’ to clarify that if a recipient has 

constructed or altered elements in 

accordance with the specifications of 

UFAS (or for facilities constructed or 

altered under ANSI), such recipient is 

not, solely because of the Department’s 

proposed use of the 2010 Standards, 

required to retrofit such elements to 

reflect incremental changes in the 


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459See, e.g., Grove City Coll. v. Bell, 465 U.S. 555 

(1988) (addressing Title IX, the Supreme Court held 

that the method by which the assistance reached 

the entity operating a program or service was not 

determinative of whether the assistance was Federal 

financial assistance under the Spending Clause civil 

rights statutes. The Court held that Basic 

Educational Opportunity Grants were Federal 

financial assistance to a college, even though the 

grants were dispersed to students, who in turn used 

those funds for education-related expenses). 

460Because childcare providers are covered by 

both titles II and III of the ADA, the obligations of 

this proposed regulation will be coextensive with 

the existing disability rights obligations for most 

childcare entities, except for those private childcare 

entities that are controlled and operated by a 

religious entity and are exempt from coverage by 

the ADA. 

461Ctr. for Am. Progress, The Child Care Crisis 

Disproportionately Affects Children With 

Disabilities, (Jan. 29, 2020), https://

www.americanprogress.org/article/child-care-crisisdisproportionately-affects-children-disabilities/. 

462 Id. 

463 Id. 

464U.S. Dep’t of Health & Hum. Servs., U.S. Dep’t 

of Ed., Policy Statement on Inclusion of Children 

with Disabilities in Early Childhood Programs 

(Sept. 14, 2015), https://www2.ed.gov/policy/ 

speced/guid/earlylearning/joint-statement-fulltext.pdf. 

465U.S. Dep’t of Justice, Commonly Asked 

Questions About Child Care Centers and the 

Americans with Disabilities Act (2020), https://

www.ada.gov/childqanda.htm (last accessed Feb. 

15, 2023). 

proposed standards. In these 

circumstances, the recipient would be 

entitled to a safe harbor for the already 

compliant elements until those elements 

are altered. The safe harbor does not 

negate a recipient’s new construction or 

alteration obligations; it must comply 

with the new construction or alteration 

requirements in effect at the time of the 

construction or alteration. With respect 

to existing facilities designed and 

constructed after the effective date of 

the first section 504 regulation, but 

before the recipients were required to 

comply with the 2010 Standards 

(between June 3, 1977 and one year 

from the publication date of this NPRM 

in final in the Federal Register), the rule 

is that any elements in these facilities 

that were not constructed in 

conformance with accessibility 

requirements are in violation of section 

504 and must be brought into 

compliance. See proposed § 84.23(a), 

(c)(5), and (d)(5). Similarly, if elements 

in existing facilities were altered during 

this time period, and those alterations 

were not made in conformance with the 

alteration requirements in effect at the 

time, then those alteration violations 

must be corrected. See proposed 

§ 84.23(b), (c)(5), and (d)(5). 

Section 84.23(g) states that nothing in 

this section relieves recipients whose 

facilities are covered by the 

Architectural Barriers Act from their 

responsibility of complying with that 

Act. 

Section 84.23(h) sets forth 

requirements with regard to mechanical 

rooms. 

Childcare, Preschool, Elementary and 

Secondary, and Adult Education: 

Revisions to Subpart D 

The proposed rule clarifies two 

sections from the existing regulation: 

§ 84.31, Application, and § 84.38, 

Preschool and adult education. The 

existing application section states that it 

applies to adult education among other 

things, but childcare is not mentioned. 

However, the existing § 84.38 refers both 

to day care (which was intended to 

include childcare) and adult education. 

We propose to add childcare to § 84.31, 

the application section, since the 

regulation was intended to broadly 

reach any form of childcare, whether or 

not it would be considered ‘‘day care.’’ 

We also propose to change the heading 

of § 84.38 to ‘‘Childcare, preschool, and 

adult education’’ to reflect the text of 

the section. In addition, we propose to 

add Child Care and Adult Education to 

the subpart heading to reflect what is 

contained in the two sections we are 

retaining. Other sections in the existing 

regulation concerning elementary and 

secondary education are reserved. 

HHS administers the largest Federal 

funding source for childcare through the 

Child Care and Development Fund 

(CCDF) and provides significant Federal 

financial assistance to early childhood 

education through Early Head Start, 

Head Start, and the Preschool 

Development Birth through Five (PDG 

B–5) programs. 

Although ‘‘day care’’ is included in 

the existing § 84.38, in recent years, 

there has been national attention to the 

lack of availability and accessibility of 

inclusive childcare and preschool for 

children with disabilities. Section 504 

follows the precedent set by other civil 

rights laws based on the receipt of 

Federal funds, most prominently, Title 

VI of the Civil Rights Act of 1964, and 

Title IX of the Education Amendments 

of 1972. Thus, section 504 applies to 

recipients of Federal funding, including 

public or private preschools, childcare 

centers, family childcare homes, and 

other entities that receive Federal funds 

including through a grant, loan, 

contract, or voucher.459

The proposed regulation clarifies 

existing obligations for childcare 

providers under subpart D of section 

504 (childcare, preschool, elementary 

and secondary, and adult education.) 

Childcare providers must also comply 

with obligations in subpart A (general), 

B (employment), C (program 

accessibility), F (health, welfare, and 

social services), G (general 

requirements), H (communications), and 

I (web and mobile accessibility), 

subparts that apply to all recipients. The 

Department is aware that some 

childcare providers that receive 

financial assistance from HHS may not 

be familiar with these obligations.460

• Child Care, Preschool, Elementary 

and Secondary, and Adult Education 

Question 1: The Department wants to 

better understand potential impacts of 

the proposed rule on these recipients 

and requests comment on the 

application of the proposed rule to 

childcare providers and any potential 

barriers to compliance. 

Upon finalizing this regulation, the 

Department would provide additional 

guidance to childcare providers to 

ensure that they understand the 

requirements of these provisions. 

In January 2020, the Center for 

American Progress (CAP) issued a 

report, ‘‘The Child Care Crisis 

Disproportionately Affects Children 

With Disabilities.’’ Analyzing the 2016 

Early Childhood Program Participation 

Survey and a combined sample of the 

2016–2018 National Survey of 

Children’s Health, as well as family 

interviews, CAP found that ‘‘compared 

with parents of nondisabled children, a 

larger proportion of parents with 

disabled children experience at least 

some difficulty finding care (34 percent 

vs. 25 percent).’’ 461 These parents face 

many barriers to care, ‘‘including a lack 

of available slots, scheduling challenges, 

and concerns about quality.’’ 462

‘‘Compared with parents of nondisabled 

children, parents of young children with 

disabilities are three times more likely 

to experience job disruptions because of 

problems with childcare.’’ 463

In 2015, the Department and the 

Department of Education issued a joint 

‘‘Policy Statement on Inclusion of 

Children With Disabilities in Early 

Childhood Programs’’ that cited the 

ADA and section 504 as part of the legal 

foundation for inclusion.464 The 

Department stated that ‘‘all young 

children with disabilities should have 

access to inclusive high-quality early 

childhood programs, where they are 

provided with individualized and 

appropriate support in meeting high 

expectations.’’ In 1997, DOJ issued 

guidance titled ’’Commonly Asked 

Questions About Child Care Centers and 

the Americans with Disabilities Act,’’ 465

which set forth requirements for 

childcare services, programs, and 

activities covered by title II of the ADA 

and privately-run childcare centers 

covered by title III of the ADA. The 


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466 Id. 467Throughout the regulation, brackets are used 

to indicate substitution of an obsolete word or 

phrase, unless they are being used in a direct 

quotation. 

468 45 CFR part 84, app. A (addressing § 84.53). 

469 476 U.S. 610 (1986), (aff’g Am. Hosp. Ass’n v. 

Heckler, 585 F. Supp. 541 (S.D.N.Y. 1984). 

guidance provides that, barring an 

applicable limitation, childcare centers 

must make reasonable modifications to 

their policies, practices, and procedures 

to integrate children, parents, and 

guardians with disabilities into their 

programs unless their presence would 

pose a direct threat to the health or 

safety of others or require a fundamental 

alteration of the program. In addition, 

centers must make reasonable 

modifications to their policies and 

practices to integrate children, parents, 

and guardians with disabilities into 

their programs unless doing so would 

constitute a fundamental alteration. 

Centers must generally make their 

facilities accessible to persons with 

disabilities. Existing facilities are 

subject to the readily achievable 

standard for barrier removal, while 

newly constructed facilities and any 

altered portions of existing facilities 

must be fully accessible. 

In past years, OCR has received 

several complaints about discrimination 

on the basis of disability in childcare 

services. For example, OCR investigated 

a complaint filed by the parent of a 

child with autism spectrum disorder 

who was denied an opportunity to 

participate in the childcare program 

based on the child’s disability. The 

childcare center committed to a 

corrective action plan aimed at 

remedying its discriminatory policy, 

including a requirement to provide staff 

training and to implement a grievance 

procedure. In another complaint, a child 

with a disability was denied enrollment 

in a childcare program because he 

needed assistance with toileting. 

Following the complaint, the program 

revised its policies. Diapering, 

medication assistance, and the need for 

one-on-one support are common reasons 

children with disabilities are denied 

enrollment. These complaints 

demonstrate that some covered 

childcare entities lack awareness of 

their obligations to comply with section 

504. By explicitly including ‘‘childcare’’ 

providers in the regulatory language, the 

Department clarifies obligations for 

these recipients. 

Recipients generally are subject to all 

the general and specific prohibitions 

against discrimination contained at 

proposed § 84.68 as well as the specific 

prohibition applicable to childcare and 

early education programs in § 84.38. 

Accordingly, recipients must provide 

auxiliary aids and services; make 

reasonable modifications to their 

policies, practices, and procedures; and 

integrate children, parents, and 

guardians with disabilities into their 

programs. The question of what is a 

‘‘reasonable modification’’ will depend 

on a number of factors including the 

size of the entity, the types of services 

provided at the center, and staffing 

demands. For example, as explained in 

DOJ’s ‘‘Commonly Asked Questions 

About Child Care Centers and the 

Americans with Disabilities Act’’ 

guidance document, ‘‘[c]enters that 

provide personal services such as 

diapering or toileting assistance for 

young children must reasonably modify 

their policies and provide diapering 

services for older children who need it 

due to a disability. Generally speaking, 

centers that diaper infants should diaper 

older children with disabilities when 

they would not have to leave other 

children unattended to do so.’’ 

However, if the program never provides 

toileting assistance to any child, the 

program is not required to do so for a 

child with a disability.466

The Department is retaining current 

subpart E, Postsecondary Education. 

Health, Welfare, and Social Services: 

Revisions to Subpart F 

The Department proposes to retain 

§ 84.51, Application, as well as the 

general prohibitions in § 84.52(a) and 

the notice requirement in § 84.52(b). It 

is deleting paragraph (c), concerning 

emergency treatment of [individuals 

who are deaf or hard of hearing] and 

paragraph (d) concerning auxiliary aids, 

and is substituting in their place 

proposed new subpart H, §§ 84.77– 

84.81, Communications.467 That subpart 

provides detailed requirements for 

communications and is not limited to 

requirements with regard to auxiliary 

aids. 

The Department also proposes to 

retain § 84.53, which states that a 

recipient that operates a general hospital 

or outpatient facility may not 

discriminate in admission or treatment 

against an individual with a [substance 

use disorder] who is suffering from a 

medical condition, because of the 

person’s [substance use disorder]. The 

Appendix states that the section was 

included ‘‘pursuant to section 407, 

Public Law 92–255, the Drug Abuse 

Office and Treatment Act of 1972 (21 

U.S.C. 1174), as amended, and section 

321, Public Law 901–616, the 

Comprehensive Alcohol Abuse and 

Alcoholism Prevention, Treatment, and 

Rehabilitation Act of 1970 (42 U.S.C. 

4581), as amended, and section 321, 

Public Law 93–282.’’ It notes that the 

section prohibits discrimination against 

[individuals with substance use 

disorders] not just by hospitals as in 

section 407 of the Drug Abuse Office 

and Treatment Act but it also includes 

outpatient facilities ‘‘because of the 

broader application of section 504.’’ 468

• Health, Welfare, and Social 

Services Question 1: The Department 

seeks comment on whether the 

application of the 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? 

This section should be read in 

conjunction with § 84.69, Illegal use of 

drugs. 

The Department proposes to retain 

§ 84.54, Education of institutionalized 

persons, which provides that 

individuals with disabilities who are 

institutionalized must be provided with 

an appropriate education. The existing 

regulation states that the appropriate 

education must be consistent with 

§ 84.33(b), a section not retained in this 

rule. In its place, the proposed rule 

references the section 504 regulations of 

the Department of Education, 34 CFR 

104.33(b). 

The Department is also retaining 

paragraphs (a) and (f) of § 84.55, 

Procedures relating to health care for 

[infants with disabilities]. Paragraphs 

(b)–(e) are not retained because they are 

subject to an injunction prohibiting 

their enforcement. In Bowen v. 

American Hospital Association, the 

Supreme Court upheld the action of the 

United States District Court declaring 

invalid and enjoining enforcement of 

those provisions.469

Paragraph (a) encourages, but does not 

require, that recipients that provide 

health care services to infants establish 

an Infant Care Review Committee (ICRC) 

to assist the provider in delivering 

health care services to infants. The 

committee would assist in the 

development of standards, policies, and 

procedures for providing treatment to 

infants with disabilities and in making 

decisions concerning medically 

beneficial treatment in specific cases. 

The ICRC should be composed of 

individuals representing a broad range 

of perspectives and should include a 

practicing physician, a representative of 

a disability organization, a practicing 

nurse, and other individuals. A 

suggested model ICRC is set forth in 

paragraph (f). 


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470 28 CFR 35.130–139. 471 56 FR 35702 (July 26, 1991). 

472 53 FR 25603 (July 8, 1988). 

473This proposed provision reflects existing case 

law. See, e.g., Ramsay v. Nat’l. Bd. Of Med. 

Examiners, 968 F.3d 251, 254 (3d Cir. 2020) 

(affirming the lower court’s preliminary injunction 

requiring reasonable accommodations for a medical 

exam board licensing exam under section 504 and 

the ADA). See also Singh v. Prasifka, No. B302113 

(Cal. Ct. Of App. Oct. 22, 2021) (finding that the 

failure to provide reasonable accommodations for a 

medical exam required to become a physician 

violated section 504 and the ADA). 

474 35 CFR 130(b)(7). 

Subpart G—General Requirements 

To accommodate provisions needed 

to update the Department’s section 504 

regulation to be consistent with the 

ADA and to incorporate these 

provisions in the Department’s existing 

section 504 regulatory framework, the 

Department is proposing to add a new 

subpart G—General Requirements. This 

new subpart will house the provisions 

dealing with general prohibitions 

against discrimination, the illegal use of 

drugs, the maintenance of accessible 

features, retaliation and coercion, 

personal devices or services, service 

animals, mobility devices, and direct 

threat. In addition, it will address 

integration. 

§ 84.68 General Prohibitions Against 

Discrimination 

The Department proposes several 

changes to ensure consistency between 

section 504 and the ADA by revising 

and adding several paragraphs to the 

general existing prohibitions contained 

in § 84.4, Discrimination prohibited. 

The general prohibitions are now 

contained in § 84.68, General 

prohibitions against discrimination. 

These proposed regulations are 

intended to be interpreted in the same 

manner as the corresponding ADA 

regulatory provisions.470

The Department is adopting these 

changes in order to preserve parity with 

the ADA regulations given Congress’s 

intent that the ADA and section 504 be 

interpreted consistently. Both recipients 

and individuals with disabilities benefit 

from establishing consistent regulations. 

The preamble to the general 

prohibitions section contained at 28 

CFR 35.130 of the title II ADA 

regulations explains that ‘‘[t]he general 

prohibitions against discrimination in 

the rule are generally based on the 

prohibitions in existing regulations 

implementing section 504 and, 

therefore, are already familiar to State 

and local entities covered by section 

504. In addition, [this regulation] 

includes a number of provisions derived 

from title III of the Act that are implicit 

to a certain degree in the requirements 

of regulations implementing section 

504.’’ 471

Existing § 84.4(a), the general 

prohibition against discrimination, is 

now contained in § 84.68(a). The 

Department has inserted the word 

‘‘solely’’ in the text of this provision to 

be consistent with the statute because 

this regulatory language tracks the 

general nondiscrimination statement of 

the statute. This change is a technical 

amendment and is not intended to alter 

the Department’s 46-year history of 

interpretation or alter the decades-long 

reach of the Department’s regulations 

under this rule. As used in this part, 

solely on the basis of disability is 

consistent with, and does not exclude, 

the forms of discrimination delineated 

throughout the rule. 

Paragraphs (b)(1)(i) to (vii) list 

prohibited actions that apply directly to 

recipients as well as those with whom 

it is connected through contractual, 

licensing, or other arrangements. 

Paragraph (b)(1)(i) states that a 

recipient may not deny a qualified 

individual with a disability the 

opportunity to participate in or benefit 

from an aid, benefit, or service. 

Paragraph (b)(1)(ii) states that a 

recipient may not afford an opportunity 

that is not equal to or as effective as that 

given to individuals without 

disabilities. 

Paragraph (b)(1)(iii) states that a 

recipient may not 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 of or 

to reach the same level of achievement 

as that provided to others. 

Paragraphs (b)(1)(iv) states that a 

recipient may not provide different or 

separate aids, benefits, or services 

unless necessary to be as effective as 

provided to others. 

Paragraph (b)(1)(v) states that a 

recipient may not provide significant 

assistance to an entity that discriminates 

on the basis of disability. 

Paragraph (b)(1)(vi) states that a 

recipient may not deny the opportunity 

to be a member of a planning or 

advisory board. 

Paragraph (b)(1)(vii) states that a 

recipient may not otherwise limit an 

individual with disabilities in the 

enjoyment of any right, privilege, 

advantage, or opportunity enjoyed by 

others. 

Paragraph (b)(2) states that 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. 

Paragraph (b)(3) states 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 or (2) that have the 

purpose or effect of defeating or 

substantially impairing accomplishment 

of the objectives of the program or 

activity 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. 

Paragraph (b)(4) prohibits the same 

actions when determining the site or 

location of a facility although, as in the 

title II regulations, the third type of 

discrimination above is not included. 

Proposed§ 84.68(b)(5) states that the 

regulation applies to recipients’ 

selection of procurement contractors 

and includes proposed language 

prohibiting the use of criteria that 

would subject qualified individuals 

with disabilities to discrimination on 

the basis of disability This provision is 

contained in the Department’s section 

504 regulations for federally conducted 

programs at 45 CFR 85.21(b)(5), which 

were issued in 1988.472

Proposed § 84.68(b)(6) includes 

language prohibiting a recipient from 

administering a licensing or certification 

program in a manner that subjects 

qualified individuals with disabilities to 

discrimination on the basis of disability 

and from establishing requirements for 

the programs or activities of licensees 

that subject qualified individuals with 

disabilities to discrimination on the 

basis of disability.473 It makes clear that 

the programs or activities of entities that 

are licensed or certified by the recipient 

are not, themselves, covered by the 

proposed regulation. This provision is 

also contained in the Department’s 

section 504 regulations for federally 

conducted programs at 45 CFR 

85.21(b)(6). 

The Department proposes to add a 

new paragraph, § 84.68(b)(7), which 

reflects section 504’s longstanding 

obligation that a recipient 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. 

The ‘‘reasonable modification’’ 

provision is the same as that in the ADA 

title II regulations.474 Despite a body of 

case law and history of agency practice, 

the Department’s existing section 504 


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475See 45 CFR 84.12 (employment) and 84.44 

(education). 

476 442 U.S. 397 (1979). 

477 469 U.S. 287, 301 (1985). 

478See e.g., U.S. Dep’t of Health & Hum. Servs., 

Voluntary Resolution Agreement between the U.S. 

Dep’t of Health & Hum. Servs., Off.for Civil Rts. and 

Citizens Med. Ctr. (Aug. 23, 2011), https://

www.hhs.gov/sites/default/files/ocr/civilrights/ 

activities/agreements/cmcsettlementagmt.pdf (OCR 

entered into a settlement agreement with CMC, after 

finding violations of section 504 and the ADA, 

when it rejected a child with autism for enrollment 

in a program based on its concern that the child 

would need one-on-one care as a reasonable 

modification.); U.S. Dep’t of Health & Hum. Servs., 

Voluntary Resolution Agreement between the U.S. 

Dep’t of Health & Hum. Servs., Off. for Civil Rts. 

and R.I. Dep’t Children, Youth, & Families (Mar. 30, 

2022) https://www.hhs.gov/civil-rights/forproviders/compliance-enforcement/agreements/vrari-dcyf/index.html (requiring the State agency to 

fulfill its obligations under title II of the ADA and 

section 504 to provide reasonable modifications and 

auxiliary aids and services in a timely manner). 

479Courts have held that both the ADA and 

section 504 create ‘‘an affirmative obligation to 

make ‘reasonable modifications to rules, policies, or 

practices, the removal of architectural, 

communication, or transportation barriers, or the 

provision of auxiliary aids and services’ to enable 

disabled persons to receive services or participate 

in programs or activities,’’ Constantine v. Rectors & 

Visitors of George Mason Univ., 411 F.3d 474, 488 

(4th Cir. 2005) (discussing title II) (quoting 42 

U.S.C. 12131(2)). See also, e.g., Pierce v. Dist.of 

Columbia, 128 F. Supp. 3d 250, 266 (D.D.C. 2015) 

(‘‘[T]he express prohibitions against disabilitybased discrimination in section 504 and Title II 

include an affirmative obligation to make benefits, 

services, and programs accessible to disabled 

people.’’ (emphasis in original)); Berardelli v. Allied 

Servs. Inst. of Rehab. Med., 900 F.3d 104, 115 (3d 

Cir. 2018) (discussing the Rehabilitation Act’s 

affirmative obligation ‘‘to make reasonable 

accommodations or reasonable modifications’’). 

480Nat’l Council on Disability, Beyond 

Guardianship: Toward Alternatives that Promote 

Greater Self-Determination for People with 

Disabilities, 130–31 (2018), https://ncd.gov/sites/ 

default/files/NCD_Guardianship_Report_

Accessible.pdf. 

481Uniform Guardianship, Conservatorship, and 

Other Protective Arrangements Act (UGCOPAA) 

§ 102(31) (UNIF. L. COMM’N 2017). UGCOPAA is 

intended as a ‘‘comprehensive guardianship statute 

for the twenty-first century,’’ completed by the 

Uniform Law Association, endorsed by the National 

Guardianship Association, approved by the 

regulation has lacked a specific 

provision implementing this 

requirement outside of the employment 

and education context.475 Consistent 

with this case law and agency practice, 

as well as with the ADA title II 

regulations, the Department is 

proposing to include a provision setting 

forth the requirement for recipients of 

Federal financial assistance from the 

Department at § 84.68(b)(7). 

To distinguish this requirement in the 

employment versus the nonemployment context and to conform the 

Department’s section 504 regulation to 

the ADA title II regulation, the 

regulation uses the term ‘‘reasonable 

modifications’’ when referring to the 

requirement to modify policies, 

procedures, and practices outside the 

employment context and ‘‘reasonable 

accommodations’’ when referring to its 

use in the employment context. 

Although the reasonable modification 

concept is not contained in the 

Department’s existing section 504 

regulations, two major Supreme Court 

cases make clear that the statute 

imposes a reasonable modification 

requirement. Since those cases, the 

Department has consistently required 

the provision of reasonable 

modifications of 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 health service or 

program. 

The obligation to modify policies, 

practices, or procedures was first 

enunciated by the Supreme Court in 

Southeastern Community College v. 

Davis, which held that, while section 

504 prohibits the exclusion of an 

otherwise qualified individual with a 

disability from participation in a 

federally funded program solely by 

reason of the individual’s disability, that 

person is not protected by section 504 

if, in order to meet essential eligibility 

standards, the person needs program or 

policy modifications that would 

fundamentally alter the nature of the 

recipient’s program.476 Subsequently, in 

Alexander v. Choate, which addressed a 

section 504 challenge to a State policy 

reducing the annual number of days of 

inpatient hospital care covered by the 

State’s Medicaid program, the Court 

explained that recipients must provide 

‘‘meaningful access’’ to programs for 

individuals with disabilities, and noted 

that ‘‘to assure meaningful access, 

reasonable accommodations in the 

grantee’s program or benefit may have to 

be made.’’ 477 Since those cases, the 

Department has consistently required 

the provision of reasonable 

modifications of 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 health service or 

program.478 Similarly, over the past 

decades, in keeping with these U.S. 

Supreme Court decisions, Federal courts 

and Federal agencies have regularly 

acknowledged agencies’ affirmative 

obligation to ensure that recipients 

provide individuals with disabilities 

reasonable modifications in programs 

and activities unless the recipient can 

demonstrate that making these 

modifications would fundamentally 

alter the program or activity.479

Proposed § 84.68(b)(7) only addresses 

fundamental alterations but does not 

mention undue financial and 

administrative burdens, which is a 

limitation applied to other sections of 

the rule. The Department does not 

propose an express limitation for undue 

financial and administrative burdens in 

this reasonable modifications provision 

because it believes this explicit 

limitation is unnecessary since the 

‘‘reasonableness’’ limitation 

circumscribes the scope of the 

underlying obligation. The Department 

believes this approach is appropriate in 

this section because the degree to which 

a modification would create a financial 

or administrative burden could bear on 

whether the modification is 

‘‘reasonable.’’ By contrast, other 

obligations in this proposed rule— 

§ 84.22 (Existing facilities); § 84.81, 

(Communications) § 84.88 (Web, mobile, 

and kiosk accessibility); and § 84.92(e), 

Accessible medical equipment—are 

framed in categorical terms. An explicit 

undue burdens limitation applies to 

those provisions because no 

‘‘reasonableness’’ limitation is included. 

This approach is consistent with the 

Department’s understanding of the 

Supreme Court precedent on limitations 

discussed above. 

Reasonable modifications may 

include, but are not limited to, 

permitting the use of supported 

decision-making or a third-party 

support, where needed by a person with 

a disability. Supported decision-making 

is an approach used to assist individuals 

with disabilities in making decisions in 

an informed and accessible way, 

through the provision of personcentered decision-making that focuses 

on the wants and needs of the 

individual receiving support. 

Supported decision-making allows an 

individual with a disability to 

collaborate with trusted sources and 

make their own decisions without the 

need for a substitute decision-maker. 

Supported decision-making reinforces 

an individual’s autonomy in decisionmaking, involves the individual in the 

decision-making process, and 

recognizes that in some instances 

assistance may be needed.480 It is the 

role of the supporter to help the 

individual with a disability understand 

the range of options and the 

implications of each, leaving the 

ultimate decision to the individual with 

a disability. 

As defined in the Uniform 

Guardianship, Conservatorship and 

Other Protective Arrangements Act,481


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American Bar Association, and enacted or partially 

enacted in a number of states. 

482Nat’l Council on Disability, Beyond 

Guardianship: Toward Alternatives that Promote 

Greater Self-Determination for People with 

Disabilities, 131 (2018), https://ncd.gov/sites/ 

default/files/NCD_Guardianship_Report_

Accessible.pdf. 

483Benjamin C. Silverman et al., Supported 

Decision-Making Can Advance Clinical Research 

Participation for People with Disabilities, 28 Nature 

Med. 2250 (2022), https://doi.org/10.1038/s41591- 

022-02035-3. 

484ADAAA section 6(h) (2008); 42 U.S.C. 

12201(h). 485 56 FR 35705 (July 26, 1991). 

supported decision-making means 

assistance from one or more persons of 

an individual’s choosing in 

understanding the nature and 

consequences of potential personal and 

financial decisions, including healthrelated decisions, which enables the 

individual to make the decisions, and in 

communicating a decision once made, 

consistent with the individual’s wishes. 

NCD has recognized the potential 

autonomy benefits of supported 

decision-making.482 In health care, 

supported decision-making may mean 

supports and services from friends, 

family members, and professionals that 

help an adult with a disability make 

their own decisions, including 

assistance monitoring health; obtaining, 

scheduling, and coordinating service; 

understanding information and options; 

making decisions; and communicating 

those decisions to others. 

The supporter’s role may include 

helping an individual to understand the 

range of possible treatment options and 

their implications, placing that 

information in terms they can 

understand, and helping the individual 

apply their own values to the decision. 

In research contexts, supported 

decision-making may include a 

supporter providing such assistance in 

the informed consent process.483

As an example of a reasonable 

modification in supported decisionmaking, a health care provider may 

need to modify their policy on 

disclosing information to third parties 

about a medical procedure, if the 

individual with a disability needs their 

supporter to help understand their 

treatment options. A human service 

provider who normally does not share 

benefit applicant information with third 

parties may need to make additional 

copies of information about an 

individual with a disability’s benefits 

eligibility to share with their supporter 

so the supporter can help explain the 

options available. 

In the context of human services, 

supported decision-making may be used 

to assist an individual with a disability 

who requires decision-making support 

to make decisions regarding different 

options, choose whether or not to 

continue a particular course of serviceprovision, and otherwise express their 

will and preference with the assistance 

of a supporter to ensure that the 

individual fully understands the range 

of options available and the 

implications of each. Once the 

individual has made a decision, the 

supporter can help to translate, explain, 

or substantiate that position to medical 

professionals, human services systems, 

or other relevant entities. In some 

instances, however, the use of 

supported decision-making will not 

require any modification at all. For 

example, a person with a disability may 

decide to obtain support for a decision 

by consulting with others ahead of time, 

but be in a position to communicate a 

decision to a provider without any 

reasonable modifications. 

When Congress enacted the ADAAA, 

it expressly provided that a covered 

entity need not provide a reasonable 

modification to policies, practices, or 

procedures to an individual who meets 

the definition of disability solely under 

the ‘‘regarded as’’ prong.484 Consistent 

with Congress’ intent that section 504 

and the ADA impose similar 

requirements and be interpreted 

consistently, the Department proposes 

to adopt this limitation to reasonable 

modifications at § 84.68(b)(7)(ii) to 

ensure parity between section 504 and 

title II of the ADA. The Department 

notes, however, that while individuals 

who meet the definition of disability 

only under the ‘‘regarded as’’ prong are 

not entitled to reasonable modifications, 

they are still protected from 

discrimination under the general 

prohibitions against discrimination. 

Proposed § 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. This provision concerning 

eligibility criteria is contained in the 

current regulation at § 84.13(a) but there 

it is only applicable in the employment 

context. 

The title II ADA regulations at 

§ 35.130(b)(8) expanded the application 

of the provision to all covered services, 

programs, and activities. In the 

preamble to the title II ADA regulation, 

DOJ explained that this language comes 

directly from the HHS section 504 

regulation at 45 CFR 84.13, Employment 

criteria.485 Proposed § 84.68(b)(8) tracks 

that ADA 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. In 

doing so, 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 who have 

diabetes-related visual impairments 

would be medically contraindicated 

from making use of the intervention. In 

this case, potential study participants 

with any form of visual impairment are 

excluded. A determination as to 

whether a qualified individual with a 

disability is eligible to participate in a 

clinical research program made based 

on broad-based categorical judgments 

related to their disability but unrelated 

to the study screens out individuals 

with disabilities from participating in 

the research study without being 

necessary for the operation of the 

research program. In contrast, a 

researcher in similar circumstances who 

excludes only patients with diabetesrelated visual impairments from the 

study is not likely to be unnecessarily 

screening out individuals with 

disabilities, as these patients are 

medically contraindicated while 

patients with other forms of visual 

impairment may not be. 

Proposed § 84.68(c) states that nothing 

in the part prohibits a recipient from 

providing benefits, services, or 

advantages beyond those required by 

this part. This paragraph maintains the 

longstanding approach of the 

Department, as reflected in § 84.4(c) of 

the Department’s existing section 504 

regulations, as well as DOJ’s 

longstanding approach in its title II 

regulation. In its title II preamble, DOJ 

explained the rationale for this 

provision, noting that the ADA 

provision is derived from existing 

section 504 regulations. Those 

regulations permit programs conducted 

pursuant to Federal statute or Executive 

order that are designed to benefit only 

individuals with disabilities or a given 

class of individuals with disabilities to 

be limited to those with disabilities. 

In explaining the revisions to the 

section in the ADA regulations, the title 

II preamble states that ‘‘section 504 

ensures that federally assisted programs 

are made available to all individuals, 

without regard to disabilities, unless the 

Federal program under which the 

assistance is provided is specifically 


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486 28 CFR part 35, app. A (addressing 84.130(c)). 

487 Id. 

488 45 CFR part 84, app. A (addressing 

§ 84.130(f)). 

489 768 F. 3d 1135, 1142 (11th Cir. 2014). 

490See e.g., Loeffler v. Staten Island Univ. Hosp., 

582 F.3d 268, 279 (2d Cir. 2009) (permitting 

associational discrimination claim under section 

504); Addiction Specialists v. Twp. of Hampton, 

411 F. 3d 399, 405 (3d Cir. 2005) (‘‘. . . the broad 

language of the . . . [Rehabilitation Act] evidences 

a Congressional intent to confer standing on entities 

like ASI to bring discrimination claims based on 

their association with disabled individuals.’’); 

Durand v. Fairview Health Servs., 902 F.3d 836, 844 

(8th Cir. 2018) (recognizing associational standing 

under ADA and RA as discussed in Loeffler and 

McCullum). Despite several circuit court holdings, 

case law is not unanimous in recognizing 

associational claims under section 504. In Todd v. 

Carstarphen, 236 F. Supp. 3d 1311, 1341–42 (N.D. 

Ga. 2017), the court distinguished associational 

claims under title II and title III, finding no 

associational standing under title II and requiring 

the Rehabilitation Act associational claims to be 

analyzed in parallel with the relevant ADA title. 

That case did acknowledge that it was in tension 

with existing case law outside of its circuit. See id. 

at 1342 n.59. 

491 480 U.S. 273 (1987). 

492 Id. at 284. 

493 28 CFR 35.108(b)(2). 

494 45 CFR part 84, app. A (addressing § 84.3). 

limited to individuals with disabilities 

or a particular class of individuals with 

disabilities.’’ 486 The preamble explains 

that although based on existing section 

504 regulations, the provision has been 

revised so that it no longer contains the 

requirement that the covered program or 

activity be conducted pursuant to a 

Federal statute or Executive order 

designed to benefit only individuals 

with disabilities. Instead, covered 

entities ‘‘may provide special benefits, 

beyond those required by the 

nondiscrimination requirements of this 

part, that are limited to individuals with 

disabilities or a particular class of 

individuals with disabilities, without 

thereby incurring additional obligations 

to persons without disabilities or to 

other classes of individuals with 

disabilities.’’ 487

Proposed § 84.68(d) states that a 

recipient shall administer programs and 

activities in the most integrated setting 

appropriate to the needs of qualified 

individuals with disabilities. This 

provision is discussed in detail in 

proposed § 84.76. 

Proposed § 84.68(e)(1) states that 

nothing requires an individual with a 

disability to accept a modification, aid, 

service, opportunity, or benefit if the 

individual chooses not to so accept. As 

noted above in the discussion of 

§ 84.68(b)(7), the concept of reasonable 

modifications is derived from section 

504 case law. 

Proposed § 84.68(e)(2) states that 

nothing in section 504 authorizes the 

representative or guardian of an 

individual with a disability to decline 

food, water, medical treatment, or 

medical services for that individual. 

Proposed § 84.68(f) includes language 

that would prohibit a recipient from 

placing a surcharge on a particular 

individual with a disability or any 

group of individuals with disabilities to 

defray the costs of measures that are 

required by section 504 or this 

regulation to ensure nondiscriminatory 

treatment. In explaining the related 

ADA provision, DOJ stated in the 

preamble to the title II ADA regulations 

that the origin of the provision came 

from its section 504 regulation which 

stated that the imposition of the cost of 

courtroom interpreter services is 

impermissible under section 504.488

This provision is an extension of that 

established section 504 principle. 

Proposed § 84.68(g) prohibits 

discrimination against an individual or 

an entity because of the known 

disability of an individual with whom 

the individual or the entity is known to 

have a relationship or association. In 

McCullum v. Orlando Regional 

Healthcare System, Inc., the court said 

that ‘‘[i]t is widely accepted that under 

both the [Rehabilitation Act] and the 

ADA, non-disabled individuals have 

standing to bring claims when they are 

injured because of their association with 

a disabled person.’’ 489 Many circuit 

courts that have analyzed section 504 

for associational discrimination have 

agreed with this interpretation.490 This 

interpretation accords with the 

Department’s longstanding approach to 

this issue under section 504. 

Proposed § 84.68(h) allows recipients 

to impose legitimate safety requirements 

that are necessary for the safe operation 

of their programs or activities as long as 

the safety requirements are based on 

actual risks, not on mere speculation, 

stereotypes, or generalizations about 

individuals with disabilities. This 

concept is derived from School Board of 

Nassau County, Florida v. Arline,491 a 

section 504 case that held that 

individuals with disabilities cannot be 

excluded from programs based on 

concerns that they pose a risk to others 

unless the recipient can provide current, 

objective evidence regarding the nature, 

severity, and duration of the risk and 

the likelihood that the risk will occur. 

The basic purpose of section 504 is to 

ensure that individuals with disabilities 

are not ‘‘denied jobs or other benefits 

because of the prejudiced attitudes or 

ignorance of others.’’ 492

Proposed § 84.68(i) states that this 

rule does not provide a basis for a claim 

that an individual without a disability is 

subject to discrimination because of a 

lack of disability, including any claim 

that an individual with a disability was 

granted a reasonable modification that 

was denied to an individual without a 

disability. 

§ 84.69 Illegal Use of Drugs 

Proposed § 84.4 adopts the ADA’s 

definition of disability. That definition 

states that a ‘‘physical or mental 

impairment’’ includes drug addiction 

and alcoholism.493 Although the 

existing section 504 regulation at 

§ 84.3(j)(2)(i) does not include drug 

addiction and alcoholism as physical or 

mental impairments, the interpretive 

guidance states that alcoholism and 

drug addiction are ‘‘physical or mental 

impairments’’ within the meaning of the 

Rehabilitation Act. Therefore, an 

individual with alcoholism or drug 

addiction is included within section 

504’s definition of an individual with a 

disability if the impairment 

substantially limits one or more of their 

major life activities.494 Accordingly, 

while the definition of ‘‘disability’’ in 

this proposed rule adopts the ADA’s 

definition, which states that physical or 

mental impairments include drug 

addiction and alcoholism, the inclusion 

of these impairments is consistent with 

HHS’s longstanding interpretation of its 

Rehabilitation Act regulation. An 

individual with a substance or alcohol 

use disorder is a protected individual 

with a disability if their impairment 

substantially limits one of their major 

life activities. 

However, proposed § 84.69 generally 

excludes from protection individuals 

engaged in the current illegal use of 

drugs if a recipient takes action against 

them based on that current illegal drug 

use, except as specified in proposed 

§ 84.69(b). The ADA amended the 

Rehabilitation Act to exclude 

individuals currently engaging in the 

illegal use of drugs from section 504 

coverage when a covered entity acts on 

the basis of such use. 

Proposed § 84.69(a)(1) states that, 

except as provided in paragraph (b), this 

part does not prohibit discrimination 

based on an individual’s current illegal 

use of drugs. Consistent with the 

language in section 705(10) of the 

Rehabilitation Act, the proposed section 

distinguishes between illegal use of 

drugs and the legal use of substances, 

whether or not those substances are 

‘‘controlled substances,’’ as defined in 

the Controlled Substances Act (21 

U.S.C. 812). Some controlled substances 

are prescription drugs that have 

legitimate medical uses. Proposed 

§ 84.69 does not affect use of controlled 

substances pursuant to a valid 


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495 42 U.S.C. 12114. 

496 29 U.S.C. 705 (20)(C)(iii). 497 45 CFR part 84, app. A (addressing § 84.3). 

prescription under supervision by a 

licensed health care professional, or 

other use that is authorized by the 

Controlled Substances Act or any other 

provision of Federal law. It does apply 

to illegal use of those substances, as 

well as to illegal use of controlled 

substances that are not prescription 

drugs. The key question is whether the 

individual’s use of the substance is 

illegal, not whether the substance has 

recognized legal uses. Alcohol is not a 

controlled substance, so use of alcohol 

is not addressed by this section 

(although persons with alcohol use 

disorders are individuals with 

disabilities, subject to the protections of 

the statute). 

A distinction is made between the use 

of a substance and the status of being 

addicted to that substance. Section 84.4, 

the definition of disability, includes 

substance use disorder in the list of 

physical impairments. Since the 

addiction substantially limits major life 

activities, addicts are individuals with 

disabilities protected by the Act. In 

other words, an individual with a 

substance use disorder cannot use the 

fact of their substance use as a defense 

to an action based on illegal use of 

drugs. This distinction is not artificial. 

Congress intended to deny protection to 

people who engage in the illegal use of 

drugs, whether or not they are 

individuals with substance use 

disorders, but to provide protection to 

individuals with substance use 

disorders as long as they are not 

currently using drugs. 

Another distinction is the difficult 

one between current use and former use. 

As defined in proposed § 84.10 and 28 

CFR 35.104 of the ADA title II 

regulations, ‘‘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.’’ Proposed 

§ 84.69(a)(2) describes the 

circumstances in which recipients are 

prohibited from discriminating against 

an individual who is not engaging in 

current illegal use of drugs. Paragraph 

(a)(2)(i) specifies that such an individual 

who has successfully completed a 

supervised drug rehabilitation program 

or has otherwise been rehabilitated 

successfully is protected. Paragraph 

(a)(2)(ii) clarifies that such an individual 

who is currently participating in a 

supervised rehabilitation program is 

protected. Paragraph (a)(2)(iii) provides 

that such an individual who is 

erroneously regarded as engaging in 

current illegal use of drugs is protected. 

Paragraph (b)(1) provides an 

exception to the exclusion of current 

illegal users of drugs from the 

protections of section 504. It prohibits 

exclusion of an individual from the 

benefits of programs or activities 

providing health services and services 

provided under the Rehabilitation Act 

subchapters I (Vocational Rehabilitation 

Services), II (Research and Training), 

and III (Professional Development and 

Special Projects and Demonstrations) on 

the basis of that individual’s current 

illegal use of drugs if the individual is 

otherwise entitled to such services. 

The exception is different in some 

respects than the one contained in the 

ADA. The ADA prohibits the denial of 

health and drug rehabilitation services 

to an individual on the basis of that 

individual’s current illegal use of drugs 

if the individual is otherwise entitled to 

such services.495 However, while 

section 504, like the ADA, prohibits the 

denial of health and drug rehabilitation 

services to such an individual, on the 

basis of that individual’s current illegal 

use of drugs if the individual is 

otherwise entitled to such services, 

section 504 prohibits the denial of other 

services as well, including vocational 

rehabilitation services provided under 

subchapter I of the Rehabilitation 

Act.496 Thus, if an individual who is 

currently using illegal drugs approaches 

a recipient requesting health or drug 

rehabilitation services, the recipient 

must provide those services if the 

individual is otherwise entitled to such 

services. Failure to do so would violate 

the ADA and would also violate section 

504. 

However, assume that the individual 

who is currently using illegal drugs is 

not seeking health or drug rehabilitation 

services but, instead, is seeking 

vocational rehabilitation services and is 

otherwise entitled to these services, and 

a recipient denies those vocational 

rehabilitation services on the basis of 

the individual’s current illegal use of 

drugs. In this situation, proposed 

§ 84.69(b) has been violated because 

vocational rehabilitation services are 

provided under subchapter I of the 

Rehabilitation Act. However, the ADA 

has not been violated because, in the 

ADA, the exception that mandates 

treatment even for current users of 

illegal drugs applies only to health and 

drug rehabilitation services. Although 

§ 84.69(a), the general prohibitions 

paragraph, is added to align with the 

ADA title II regulations, the statutory 

language of the ADA is different than 

the statutory language of the 

Rehabilitation Act with regard to 

required provision of services to current 

illegal drug users. Accordingly, 

proposed § 84.69(b) reflects that 

difference. 

A recipient may not refuse treatment 

to an individual in need of the services 

it provides on the grounds that the 

individual is illegally using drugs, but it 

is not required by this section to provide 

services that it does not ordinarily 

provide. For example, a health care 

facility that specializes in a particular 

type of treatment, such as care of burn 

victims, is not required to provide drug 

rehabilitation services, but it cannot 

refuse to treat an individual’s burns on 

the grounds that the individual is 

illegally using drugs. This is a 

longstanding position of the Department 

under section 504. Appendix A to the 

existing rule makes clear that denying 

treatment to an individual with a 

[substance use disorder] who is 

otherwise entitled to such treatment for 

unrelated conditions is prohibited.497

Paragraph (b)(2) provides that a drug 

rehabilitation or treatment program may 

deny participation to individuals who 

engage in illegal use of drugs while they 

are in the program. 

Paragraph (c)(1) addresses testing for 

illegal use of drugs. This paragraph is 

derived from the Rehabilitation Act at 

29 U.S.C. 705(20)(C), and similar 

language in the title II regulations, 

which allows recipients to ‘‘adopt or 

administer 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. This 

paragraph does not authorize inquiries, 

tests, or other procedures that would 

disclose use of substances that are not 

controlled substances or are taken under 

supervision by a licensed health care 

professional, or other uses authorized by 

the Controlled Substances Act or other 

provisions of Federal law, because such 

uses are not included in the definition 

of ‘‘illegal use of drugs.’’ 

Paragraph (c)(2) states that the section 

is not to be ‘‘construed to encourage, 

prohibit, restrict, or authorize the 

conducting of testing for the illegal use 

of drugs.’’ 

§ 84.70 Maintenance of Accessible 

Features 

This provision provides that a 

recipient must maintain in operable 

working condition those features of 

facilities and equipment that are 

required to be readily accessible to and 

usable by individuals with disabilities. 

The failure to maintain accessible 

features can deny equal opportunities, 


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498See, e.g., Frame v. City of Arlington, 657 F.3d 

215, 223–24 (5th Cir. 2011) (en banc) (’’ The ADA 

and the Rehabilitation Act generally are interpreted 

in pari materia.’’); Liberty Res. v. City of Phila., Civ. 

Action 9–3846, *2 n.4 (E.D. Pa. Oct. 27, 2021) (‘‘The 

court will consider the Rehabilitation Act claims 

together with the ADA claims because the 

substantive standards for determining liability are 

the same.’’ (quotation marks and citation omitted)). 

It further held that ‘‘[p]ractical reasons also demand 

this result: while a street resurfacing is a discrete 

act, the failure to maintain a curb ramp is not’’). 

499 900 F. 3d 104 (3d Cir. 2019). 

500 Id. at 120. 

501See, e.g., C.G. v. Saucon Valley Sch. Dist., 571 

F.Supp.3d 430, 443–44 (E.D. Pa. Nov. 18, 2021) 

(‘‘C.G. has shown a substantial likelihood of success 

on the merits because there is a substantial 

likelihood that George qualifies as a service animal 

because he has been trained to perform tasks that 

related to one or more of C.G.’s disabilities.’’); E.F. 

v. Napoleon Cty. Sch., No. 12–15507, 15, 32 (E.D. 

Mich. Sept. 25, 2019) (finding that section 504 and 

the ADA ‘‘are quite similar in purpose and scope, 

such that the analysis of a title II ADA claim 

roughly parallels one brought under Section 504 of 

the Rehabilitation Act.’’ The court further stated 

that ‘‘. . . E.F. has the right to request a service dog 

as an accommodation for her disability.’’); Alboniga 

v. Sch. Bd. of Broward Cty., 87 F. Supp. 3d 1319, 

1345 (S.D. Fla. 2015) (‘‘Defendant is permanently 

enjoined to provide the minor plaintiff A.M. 

reasonable accommodation in assisting him with 

use of his service animal. . . .’’); Hurley v. Loma 

Linda Univ. Med. Ctr., No. CV12–5688 DSF, 15, 18 

(C.D. Cal. Feb. 12, 2014) (noting that Casey 

repeatedly asking Hurley for documentation 

providing that her dog was indeed a service animal 

‘‘clearly violated the ADA’’ and ‘‘[b]ecause Hurley 

was subjected to disability discrimination under the 

ADA, she was also subjected to discrimination 

under Section 504.’’ Id. at 18). 

502For example, one OCR complaint alleged that 

the recipient refused to allow a service animal 

when an individual was visiting his son in the 

hospital. Other complaints have alleged that service 

animals have been barred from accompanying 

individuals in hospital emergency rooms and 

specialty clinics. 

and thus discriminate against 

individuals with disabilities, as surely 

as the failure to construct those 

accessible features in the first place. The 

ADA and the Rehabilitation Act 

generally are interpreted using the same 

legal standards and, accordingly, the 

ADA analysis applies with full force to 

the Rehabilitation Act.498 Failure of a 

recipient to ensure that accessible routes 

are properly maintained and free of 

obstructions, or failure to arrange 

prompt repair of inoperable elevators or 

other equipment intended to provide 

access would also violate this part. 

Similarly, storing excess furniture or 

supplies in the larger, accessible toilet 

stall, putting potted plants in front of 

the elevator buttons in the building 

lobby, or, in northern climates, placing 

the ploughed snow in the accessible 

spaces in the hospital parking lot could 

make these facilities and the programs 

they support inaccessible to persons 

with disabilities. 

This provision also addresses the 

situation where the 2010 Standards 

reduce either the technical requirements 

or the number of required accessible 

elements below that required by UFAS. 

In such a case, the recipient may choose 

to reduce the technical requirements or 

the number of accessible elements in a 

covered facility in accordance with the 

requirements of the 2010 Standards. 

This paragraph is intended to clarify 

that temporary obstructions or isolated 

instances of mechanical failure would 

not be considered violations of section 

504. However, 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. 

§ 84.71 Retaliation or Coercion 

Proposed § 84.71(a) provides that a 

recipient shall not discriminate against 

an individual because that individual 

has opposed any act or practice made 

unlawful by this part, or because that 

individual has made a charge, testified, 

assisted, or participated in any manner 

in an investigation, proceeding, or 

hearing under section 504 or this part. 

Proposed § 84.71(b) provides that a 

recipient shall not coerce, intimidate, 

threaten, or interfere with any 

individual in the exercise of his or her 

rights under this part or because that 

individual aided or encouraged any 

other individual in the exercise or 

enjoyment of any right granted or 

protected by section 504 or this part. 

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. 

§ 84.72 Personal Devices and Services 

Proposed § 84.72, Personal devices 

and services, states that the provision of 

personal devices and services is not 

required by the section 504 regulation. 

The existing section addressing personal 

devices and services is contained in 

§ 84.44(d)(2), the communications 

section in Subpart D, Postsecondary 

Education, which is retained in the 

proposed rule. Section § 84.72 

supplements that section. A wide range 

of the programs funded by the 

Department incorporate the provision of 

personal care services. For example, 

hospitals, nursing homes, child welfare 

services, and home and communitybased care by their very nature include 

the provision of personal care devices 

and services. Where personal services 

are customarily provided as part of 

recipient’s programs or activities, then 

these personal services should also be 

provided to persons with disabilities. 

§ 84.73 Service Animals 

The Department proposes to add a 

new ‘‘service animals’’ section to its 

regulation, which tracks the title II 

regulations. This new regulation is 

consistent with the recognition by the 

Third Circuit in Berardelli v. Allied 

Services Institute of Rehabilitation 

Medicine 499 that the ADA’s ‘‘service 

animal regulations, although technically 

interpreting the ADA, are no less 

relevant to the interpretation of the RA 

[Rehabilitation Act].’’ 500 There are 

many similar service animal cases that 

were brought both under section 504 

and the ADA.501 Throughout the years, 

OCR has processed numerous 

complaints alleging that exclusions of 

service animals violated section 504, 

including instances where service 

animals were denied entry to hospitals, 

specialist clinics, and emergency 

departments.502 OCR has provided 

technical assistance to many recipients 

concerning service animal issues. 

As defined in proposed § 84.10, a 

service animal is ‘‘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 

psychiatric and neurological disabilities 

by preventing or interrupting impulsive 

or destructive 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.’’ 

The definition limits service animals 

to dogs. No other species of animals is 


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503U.S. Dep’t of Justice, ADA Requirements: 

Service Animals (2010), www.ada.gov/resources/ 

service-animals-2010-requirements. 

504U.S. Dep’t of Justice, Frequently Asked 

Questions about Service Animals and the ADA 

(2015), https://archive.ada.gov/regs2010/service_

animal_qa.html. 

included. Limiting the species 

recognized as service animals provides 

greater predictability to recipients and 

provides added assurance of access for 

individuals with disabilities who use 

dogs as service animals. 

The proposed definition states that a 

service animal must be ‘‘individually 

trained to do work or perform tasks for 

the benefit of an individual with a 

disability.’’ The work or tasks must be 

directly related to the individual’s 

disability. The definition provides an 

illustrative and non-exhaustive list of 

examples of work or tasks. These 

include alerting individuals who are 

deaf or hard of hearing to the presence 

of people or sounds and providing nonviolent protection or rescue work. The 

phrase ‘‘non-violent protection’’ is used 

to exclude so-called ‘‘attack dogs’’ or 

dogs with traditional ‘‘protection 

training’’ as service animals. The 

proposed regulation also notes that the 

crime-deterrent effect of a dog’s 

presence, by itself, does not qualify as 

work or tasks for purposes of the service 

animal definition. 

The proposed definition states that 

‘‘the provision of emotional support, 

well-being, comfort, or companionship 

do not constitute work or tasks for 

purposes of this definition.’’ Unless the 

dog is individually trained to do 

something that qualifies as work or a 

task, the animal is a pet or support 

animal and does not qualify for coverage 

as a service animal. A pet or support 

animal may be able to discern that the 

individual is in distress, but it is what 

the animal is trained to do in response 

to this awareness that distinguishes a 

service animal from a pet or support 

animal. 

An example of a service animal would 

be a psychiatric service dog that can 

help some individuals with dissociative 

identity disorder remain grounded in 

time or place. This animal does work or 

performs a task that would qualify it as 

a service animal as compared to an 

untrained emotional support animal 

whose presence affects a person’s 

disability. It is the fact that the animal 

is trained to respond to the individual’s 

needs that distinguishes an animal as a 

service animal. The process must have 

two steps: recognition and response. For 

example, if a service animal senses that 

a person is about to experience an 

exacerbation of their mental health 

symptoms, and it is trained to respond, 

for example, by nudging, barking, or 

removing the individual to a safe 

location until the episode subsides, then 

the animal has performed a task or done 

work on behalf of the individual with 

the disability, as opposed to merely 

sensing an event. Other tasks performed 

by psychiatric service animals may 

include reminding the individual to 

take medicine, providing safety checks 

or room searches for persons with posttraumatic stress disorder, interrupting 

self-harming behaviors, and removing 

disoriented individuals from dangerous 

situations. The difference between an 

emotional support animal and a 

psychiatric service animal is the work or 

tasks that the animal performs. 

Proposed § 84.73(a) states that, 

generally, a recipient shall modify its 

policies, practices, or procedures to 

permit the use of a service animal by an 

individual with a disability. The section 

reflects a specific application of the 

general requirement in proposed 

§ 84.68(b)(7) that a recipient make 

reasonable modifications to its policies, 

practices, or procedures when such 

modifications are necessary to avoid 

discrimination on the basis of disability, 

unless the modifications would 

fundamentally alter the nature of the 

health service, program or activity. 

For example, assume that a recipient 

permits a service animal in a waiting 

area of a clinic where an individual 

with severe allergies to dog dander is 

sitting. As DOJ has explained in 

guidance entitled ‘‘ADA Requirements: 

Service Animals,’’ ‘‘Allergies and fear of 

dogs are not valid reasons for denying 

access or refusing service to people 

using service animals. When a person 

who is allergic to dog dander and a 

person who uses a service animal must 

spend time in the same room or facility, 

for example, in a school classroom or at 

a homeless shelter, they both should be 

accommodated by assigning them, if 

possible, to different locations within 

the room or different rooms in the 

facility.’’ 503

Although permitting the presence of a 

service animal will usually not 

constitute a fundamental alteration, 

there are some exceptions. In its 

guidance entitled ‘‘Frequently Asked 

Questions about Service Animals and 

the ADA,’’ 504 DOJ provided the 

following example: ‘‘[A]t a boarding 

school, service animals could be 

restricted from a specific area of a 

dormitory reserved specifically for 

students with allergies to dog dander.’’ 

Similarly, as applied to the health care 

context, for example, at a hospital, a 

service animal could be restricted from 

a specific area of patient rooms in a 

hospital reserved specifically for 

individuals with allergies to dog dander. 

A service animal could also be restricted 

from a class being given at a long-term 

care facility if it continually barks and 

interrupts the class as long as other 

types of noise are likewise not tolerated. 

Proposed § 84.73(b) contains two 

exceptions to the requirement that a 

recipient permit the use of service 

animals by individuals with disabilities: 

(1) if the animal is out of control and the 

animal’s handler does not take effective 

actions to control it, or (2) if the animal 

is not housebroken. 

There are occasions when service 

animals are provoked to disruptive or 

aggressive behavior by agitators or 

troublemakers, as in the case of a blind 

individual whose service dog is taunted 

or pinched. While all service animals 

are trained to ignore and overcome these 

types of incidents, misbehavior in 

response to provocation is not always 

unreasonable. In circumstances where a 

service animal misbehaves or responds 

reasonably to a provocation or injury, 

the recipient must give the handler a 

reasonable opportunity to gain control 

of the animal. Further, if the individual 

with a disability asserts that the animal 

was provoked or injured, or if the 

recipient otherwise has reason to 

suspect that provocation or injury has 

occurred, the recipient should seek to 

determine the facts and, if provocation 

or injury occurred, the recipient should 

take effective steps to prevent further 

provocation or injury, which may 

include asking the provocateur to leave 

the recipient’s facility. 

Proposed § 84.73(c) states that if a 

recipient properly excludes a service 

animal under § 84.73(b), 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. 

Proposed § 84.73(d) states that a 

service animal shall be under the 

control of its handler. It 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 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). 

Proposed § 84.73(e) states that a 

recipient is not responsible for the care 

or supervision of a service animal. 

There may be occasions when a person 

with a disability is confined to bed in 

a hospital for a period of time and may 

not be able to walk or feed the service 

animal. In such cases, if the individual 


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505U.S. Dep’t of Justice, Frequently Asked 

Questions about Service Animals and the ADA 

(2015), https://archive.ada.gov/regs2010/service_

animal_qa.html. 

506See, e.g., Meagley v. City of Little Rock, Case 

No. 4:09–cv–226–DPM, 16 (E.D. Ark. Aug. 13, 2010) 

aff’d, 639 F. 3d 384 (8th Cir. 2011). In Meagley, the 

plaintiff rented an electric scooter at a city zoo, the 

scooter slipped on a bridge, and the plaintiff 

suffered injuries. The court held that both the ADA 

and section 504 had been violated, stating that 

‘‘Meagley proved, without question, that the City 

violated her rights under both Title II of the ADA 

and section 504 of the Rehabilitation Act. The 

steep-sloped bridge where Meagley’s accident 

occurred did not comply with the ADA 

Accessibility Guidelines.’’ 

has a family member, friend, or other 

person willing to take on these 

responsibilities in the place of the 

individual with disabilities, the 

individual’s obligation to be responsible 

for the care and supervision of the 

service animal would be satisfied. 

Proposed § 84.73(f) states that a 

recipient shall not ask about the nature 

or extent of a person’s disability. In its 

guidance entitled ‘‘Frequently Asked 

Questions about Service Animals and 

the ADA,’’ 505 DOJ explained: ‘‘In 

situations where it is not obvious that 

the dog is a service animal, [a recipient] 

may ask . . . two specific questions: (1) 

[I]s the dog a service animal required 

because of a disability? and (2) [W]hat 

work or task has the dog been trained 

to perform?’’ Generally, these inquiries 

cannot be made when it is readily 

apparent that an animal is trained to do 

work or perform tasks for an individual 

with a disability. A recipient shall not 

require documentation, such as proof 

that the animal has been certified, 

trained, or licensed as a service animal. 

Proposed § 84.73(g) provides 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, participants in programs or 

activities, or invitees, as relevant, are 

allowed to go. 

Proposed § 84.73(h) provides that 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. 

Proposed § 84.73(i) addresses 

miniature horses. This provision is 

added to ensure consistency between 

this regulation and the regulation under 

title II of the ADA which has long 

recognized that use of miniature horses 

may need to be permitted as a 

reasonable modification. The section 

states 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 if the 

miniature horse has been individually 

trained to work or perform tasks for the 

benefit of the individual with a 

disability. The traditional service 

animal is a dog, which has a long 

history of guiding individuals who are 

blind or have low vision, and over time 

dogs have been trained to perform an 

even wider variety of services for 

individuals with all types of disabilities. 

Miniature horses can be a viable 

alternative to dogs for individuals with 

allergies, or for those whose religious 

beliefs preclude the use of dogs. Also, 

miniature horses have a longer life span 

and greater strength as compared to 

dogs. Specifically, miniature horses can 

provide service for more than 25 years 

while dogs can provide service for 

approximately seven years and, because 

of their strength, miniature horses can 

provide services that dogs cannot 

provide. Accordingly, use of miniature 

horses reduces the cost involved to 

retire, replace, and train replacement 

service animals. 

The miniature horse is not one 

specific breed, but may be one of several 

breeds, with distinct characteristics that 

produce animals suited to service 

animal work. They generally range in 

height from 24 inches to 34 inches and 

generally weigh between 70 and 100 

pounds. These characteristics are 

similar to those of large breed dogs. Like 

dogs, miniature horses can be trained to 

be housebroken. They are trained to 

provide a wide array of services, 

primarily guiding individuals who are 

blind or have low vision, pulling 

wheelchairs, providing stability and 

balance for individuals with disabilities 

that impair the ability to walk, and 

supplying leverage that enables a person 

with a mobility disability to get up after 

a fall. They are particularly effective for 

large stature individuals. 

The miniature horse is not included 

in the definition of service animal, 

which is limited to dogs. However, the 

proposed section 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. The recipient may take into 

account a series of assessment factors in 

determining whether to allow a 

miniature horse into a specific facility. 

These include the type, size, and weight 

of the miniature horse; whether the 

handler has sufficient control of the 

miniature horse; whether the miniature 

horse is housebroken; and whether the 

miniature horse’s presence in a specific 

facility compromises legitimate safety 

requirements that are necessary for safe 

operation. In addition, paragraphs (c)– 

(h) of this section, which are applicable 

to dogs, also apply to miniature horses. 

§ 84.74 Mobility Devices 

The title II regulations were amended 

in 2010 to include a section on mobility 

devices. In 1991 when the initial ADA 

regulations were published, there was 

no pressing need to define the terms 

‘‘wheelchair’’ or ‘‘other power-driven 

mobility device,’’ because relatively few 

individuals with disabilities were using 

nontraditional mobility devices in 1991. 

However, since the 1991 title II 

regulations and amendments to the 

ADA regulations in 2010, the choices of 

mobility devices available to 

individuals with disabilities have 

increased dramatically. The ADA 

regulation, 28 CFR 35.137, on which 

proposed § 84.74 is modeled, addresses 

the use of unique mobility devices, 

concerns about their safety, and the 

parameters for the circumstances under 

which these devices must be 

accommodated. section 504 cases have 

also addressed power-driven mobility 

devices.506 Advances in technology 

have given rise to new power-driven 

devices that are not necessarily 

designed specifically for people with 

disabilities but are being used by some 

people with disabilities for mobility. 

The term ‘‘other power-driven mobility 

devices’’ was developed in the ADA 

regulations and is adopted here to refer 

to any mobility device powered by 

batteries, fuel, or other engines, whether 

or not they are designed primarily for 

use by individuals with mobility 

disabilities, for the purpose of 

locomotion. The term ‘‘other powerdriven mobility devices’’ is defined in 

§ 84.10 of this proposed rule. Such 

devices include Segways®, golf carts, 

and other devices designed to operate in 

non-pedestrian areas. 

The Department is aware that its 

recipients have encountered the 

increased use of ‘‘other power-driven 

mobility devices,’’ such as Segways®. 

Including regulatory provisions on how 

recipients should approach allowing 

such vehicles in a variety of health care 

settings is necessary to provide access to 

persons with disabilities who use these 

devices and also to ensure the safe and 

efficient operations of the programs and 

activities. 


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507ADA Requirements: Wheelchairs, Mobility 

Aids, and Other Power-Driven Mobility Devices, 

U.S. Dep’t of Justice, Civil Rts. Div., https://

www.ada.gov/resources/opdmds/ (last updated Jan. 

2014). 

508 480 U.S. 273 (1987). 

509 Id. at 288 n.16. 

510 Id. at 287–88. 

Under this proposed regulation, 

recipients must allow individuals with 

disabilities who use these devices into 

all areas where the public is allowed to 

go, unless the recipient can demonstrate 

that the particular type of device cannot 

be accommodated because of legitimate 

safety requirements. Such safety 

requirements must be based on actual 

risks, not on speculation or stereotypes 

about a particular class of devices or 

how individuals will operate them. 

The proposed rule at § 84.74(b)(2) lists 

the factors that recipients must consider 

in determining whether to permit other 

power-driven mobility devices on their 

premises. They include the type, size, 

weight, dimensions, and speed of the 

device; the volume of pedestrian traffic 

(which may vary at different times of 

the day, week, month, or year); the 

facility’s design and operational 

characteristics, such as its square 

footage, whether it is indoors or 

outdoors, the placement of stationary 

equipment, or devices, and whether it 

has storage space for the device if 

requested by the individual; whether 

legitimate safety standards can be 

established to permit the safe operation 

of the device; and whether the use of the 

device creates a substantial risk of 

serious harm to the environment or 

natural or cultural resources or poses a 

conflict with Federal land management 

laws and regulations. 

As DOJ has set forth in a guidance 

document entitled ‘‘Wheelchairs, 

Mobility Aids, and Other Power-Driven 

Mobility Devices,’’ using these 

assessment factors, a recipient may 

decide, for example, that it can allow 

smaller electric devices like Segways®

in a facility, but cannot allow the use of 

larger electric devices like golf carts for 

safety reasons, because the facility’s 

corridors or aisles are not wide enough 

to accommodate these vehicles.507 It is 

likely that many recipients will allow 

the use of Segways® generally, although 

some may determine that it is necessary 

to restrict their use during certain hours 

or on particular days when pedestrian 

traffic is particularly dense. Large 

hospitals with multiple departments 

and specialties may also decide that 

such devices can be safely and 

appropriately allowed in certain parts of 

the facilities, but not in others. It is also 

likely that recipients will prohibit the 

use of combustion-powered devices 

from all indoor facilities and perhaps 

some outdoor facilities with heavy 

pedestrian traffic. 

Proposed § 84.74(c) addresses the 

types of questions that a recipient’s staff 

may ask of those using other powerdriven mobility devices. Recipients may 

not ask individuals using such devices 

about their disability but may ask for a 

credible assurance that the device is 

required because of a disability. If the 

person presents a valid, State-issued 

disability parking placard or card or a 

State-issued proof of disability, that 

must be accepted as credible assurance 

on its face. However, recipients cannot 

demand or require the presentation of a 

valid disability placard or card, or stateissued proof of disability, as a 

prerequisite for use of a power-driven 

mobility device, because not all persons 

with mobility disabilities have such 

means of proof. If the person does not 

have this documentation, but states 

orally that the device is being used 

because of a mobility disability, that 

also must be accepted as credible 

assurance, unless the person is observed 

doing something that contradicts the 

assurance. For example, as DOJ’s 

guidance document sets forth, if a 

person is observed running and 

jumping, that may be evidence that 

contradicts the person’s assertion of a 

mobility disability. However, the fact 

that a person with a disability is able to 

walk for a short distance does not 

necessarily contradict a verbal 

assurance—many people with mobility 

disabilities can walk but need their 

mobility device for longer distances or 

uneven terrain. This is particularly true 

for people who lack stamina, have poor 

balance, or use mobility devices because 

of respiratory, cardiac, or neurological 

disabilities. 

§ 84.75 Direct Threat 

Proposed § 84.10 defines ‘‘direct 

threat’’ as 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. 

This is similar to the definition in the 

title II ADA regulations although this 

proposed definition contains a 

subsection applicable to employment. 

Proposed § 84.75 likewise is similar to 

the direct threat provisions in the title 

II ADA regulations at 28 CFR 35.139 

but, as in the definition, it contains a 

subsection applicable to employment, 

which uses a distinct definition of direct 

threat. 

This provision of the ADA regulation 

is modeled on the section 504 Supreme 

Court case of School Board of Nassau 

County v. Arline.508 In that case, the 

Supreme Court established that 

exclusion of persons with disabilities 

from programs based on concerns that 

they pose risk to others can violate 

section 504 unless the recipient can 

provide current, objective evidence 

regarding the nature, severity, and 

duration of the risk and the likelihood 

that the risk will occur. Although 

persons with disabilities are generally 

entitled to the protection of this part, a 

person who poses a significant risk to 

others will not be ‘‘qualified,’’ if 

reasonable modifications to the 

recipient’s policies, practices, or 

procedures will not eliminate that 

risk.509

The determination that a person poses 

a direct threat to the health or safety of 

others may not be based on 

generalizations or stereotypes about the 

effects of a particular disability. It must 

be based on an individualized 

assessment, based on reasonable 

judgment that relies on current medical 

knowledge or on the best available 

objective evidence, to determine: 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 will mitigate 

the risk. This is the test established by 

the Supreme Court in Arline.510 Such an 

inquiry is essential if the law is to 

achieve its goal of protecting disabled 

individuals from discrimination based 

on prejudice, stereotypes, or unfounded 

fear, while giving appropriate weight to 

legitimate concerns, such as the need to 

avoid exposing others to significant 

health and safety risks. Making this 

assessment will not usually require the 

services of a physician. Sources for 

medical knowledge include guidance 

from public health authorities, such as 

the U.S. Public Health Service, the 

Centers for Disease Control, and the 

National Institutes of Health, including 

the National Institute of Mental Health. 

These principles have been the law 

since Arline was decided in 1987, and 

this proposed section would merely 

codify them into regulatory text. 


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511The medical treatment provisions of this rule 

involve a straightforward application of the general 

prohibitions against disability discrimination and, 

therefore, do not alter the direct threat analysis in 

any way. 

512 45 CFR 84.4(b)(2). 

513 28 CFR 35.130(d). 

514See 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., note 4 

(2020), https://www.ada.gov/olmstead/q&a_

olmstead.htm (last visited June 18, 2022); see also, 

e.g., Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 

1998) (‘‘cases interpreting either are applicable and 

interchangeable.’’); Pashby v. Delia, 709 F.3d 307, 

321 (4th Cir. 2013) (‘‘We consider their Title II and 

section 504 claims together because these 

provisions impose the same integration 

requirements.’’). See also Radaszewski ex Rel. 

Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 

2004); Frederick L. v. Dep’t of Public Welfare of 

Pennsylvania, 364 F.3d 487, 491 (3d Cir. 2004); 

Fisher v. Oklahoma Health Care Auth., 335 F.3d 

1175, 1179 n. 3 (10th Cir. 2003); Bruggeman ex Rel. 

Bruggeman v. Blagojevich, 324 F.3d 906, 912 (7th 

Cir. 2003); M.R. v. Dreyfus, 697 F.3d 706, 733 (9th 

Cir. 2012). 

515U.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. 22, 2023). 

516 527 U.S. 581 (1999). 

517Courts and the Department of Justice have 

recognized that the ‘‘appropriateness’’ of 

community-based services is not necessarily limited 

to the determination of a treating professional. 

DOJ’s Olmstead guidance states ‘‘An individual 

may rely on a variety of forms of evidence to 

establish that an integrated setting is appropriate. A 

reasonable, objective assessment by a public entity’s 

treating professional is one, but only one, such 

avenue . . . People with disabilities can also 

present their own independent evidence of the 

appropriateness of an integrated setting, including, 

for example, that individuals with similar needs are 

living, working and receiving services in integrated 

settings with appropriate supports. This evidence 

may come from their own treatment providers, from 

community-based organizations that provide 

services to people with disabilities outside of 

institutional settings, or from any other relevant 

source.’’ 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), 

Question 4 https://www.ada.gov/olmstead/q&a_

olmstead.htm (last visited Feb. 22, 2023). This 

guidance is consistent with court holdings that the 

public entity’s determination of appropriateness is 

not required for the individual with a disability to 

show that a community based setting is appropriate. 

See Frederick L. v. Dep’t of Pub. Welfare, 157 

F.Supp.2d 509, 539–40 (E.D.Pa. 2001) (denying 

defendants’ motion to dismiss Olmstead claims and 

rejecting the argument that Olmstead ‘‘require[s] a 

formal recommendation for community 

placement.’’); Disability Advocates, Inc. v. Paterson, 

653 F.Supp.2d 184, 258–59 (E.D.N.Y. 2009) 

(requiring a determination by treating professionals, 

who are contracted by the State, ‘‘would eviscerate 

the integration mandate’’ and ‘‘condemn the 

placements of [individuals with disabilities in adult 

homes] to the virtually unreviewable discretion’’ of 

the State and its contractors); Day v. DC, 894 F. 

Supp. 2d 1, 23–24 (D.D.C. 2012) (rejecting District’s 

assertion that plaintiffs must be subject to the 

District’s determination of whether or not such 

services are appropriate to meet their needs). 

518Olmstead, 527 U.S. at 607. 

519See, e.g., Guggenberger v. Minn., 198 F. Supp. 

3d 973, 1024 (D. Minn. 2016) (applying same 

analysis to title II and section 504 integration 

mandate claims). 

520 28 CFR pt. 35, app. A (2010) (addressing 

§ 35.130); see also 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 June 18, 2022). 

In the medical treatment context, 

when determining whether a recipient 

is required to treat an individual with a 

disability, the recipient must assess 

whether an individual poses a direct 

threat to the health or safety of others. 

Proposed § 84.56(b)(1) prohibits denial 

of medical treatment based on bias or 

stereotypes about a patient’s 

disability.511 A recipient cannot refuse 

to treat patients they would normally 

treat but for the patient having a 

separate disability (for which the 

recipient does not normally provide 

treatment). For example, an Ebola 

specialist who refuses to treat an Ebola 

patient—who also has HIV—on the 

basis of the patient’s HIV status cannot 

refuse to treat the patient because of an 

assessment that the individual poses a 

direct threat to physician’s health or 

safety unless there are no reasonable 

modifications that could mitigate the 

risk. 

§ 84.76 Integration 

The current section 504 regulation 

includes an ‘‘integration mandate’’ that 

requires recipients of Federal funds to 

administer programs and activities ‘‘in 

the most integrated setting appropriate 

to the . . . needs’’ of the person with a 

disability.512 The ADA title II regulation 

similarly requires a public entity to 

‘‘administer services, programs, and 

activities in the most integrated setting 

appropriate to the needs of qualified 

individuals with disabilities.’’ 513 In the 

decades since the Department’s initial 

integration mandate language was 

published in the 1977 section 504 

regulation, a substantial body of case 

law has developed with respect to 

obligations of covered entities to serve 

individuals with disabilities in the most 

integrated setting appropriate to the 

qualified person’s needs under section 

504 and title II of the ADA. The 

respective integration obligations under 

section 504 and the ADA have been 

interpreted consistently, with claims 

brought under both laws ‘‘generally 

treated identically.’’ 514 The Department 

proposes to update the section 504 

regulation consistent with cases from 

the U.S. Supreme Court and lower 

courts, as well as DOJ’s interpretation of 

the integration mandate under title II,515

adding greater specificity to the 

obligations of recipients to serve 

persons with disabilities in the most 

integrated setting appropriate. 

In Olmstead v. L.C., the Supreme 

Court established that unjustified 

isolation is a form of discrimination 

under the title II integration mandate. 

516 As the Court interpreted the law, 

public entities are required to provide 

community-based services to persons 

with disabilities when such services are 

appropriate,517 the affected persons do 

not oppose community-based treatment, 

and the placement in a community 

setting can be reasonably 

accommodated, taking into account the 

resources available to the entity and the 

needs of others who are receiving 

disability services from the entity.518

Since Olmstead, courts have interpreted 

analysis of the integration mandate of 

the ADA and section 504 

consistently.519 The proposed rule 

applies Olmstead in the context of 

section 504. The most integrated setting 

is defined in proposed § 84.10 as ‘‘a 

setting that provides individuals with 

disabilities the opportunity to interact 

with nondisabled persons to the fullest 

extent possible; is located in 

mainstream society; offers access to 

community activities and opportunities 

at times, frequencies and with persons 

of an individual’s choosing; and affords 

individuals choice in their daily life 

activities. This language is consistent 

with the description of ‘‘most integrated 

setting’’ in title II guidance.520

HHS has played a significant role in 

implementation of the Olmstead 

decision for decades. Through the 

Medicaid program, HHS is also the 

nation’s primary funder of home and 

community-based services (HCBS). OCR 

has intervened and assisted in scores of 

Olmstead complaints, many of which 

involved State agencies administering 

long-term services and supports. OCR 

has received complaints filed by or on 

behalf of a wide range of individuals, 

including individuals with physical, 

psychiatric, intellectual, and 

developmental disabilities, and 

individuals of all ages. OCR also 

coordinates with DOJ on Olmstead 

complaints, including through 

consultations, case referrals (both to and 

from DOJ) and collaboration on cases. 

As a result of OCR’s efforts, many 

individuals have transitioned from an 

institution to the community, and many 

individuals have avoided unnecessary 

institutionalization. OCR has also 

played an important role in providing 

technical assistance to states and other 

entities about the integration mandate. 

Despite this work, Olmstead issues 

continue to comprise a significant 


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521See Nat‘l Council on Disability, 2021 Progress 

Report: The Impact of COVID–19 on People with 

Disabilities, 89–91 (2021), https://ncd.gov/ 

progressreport/2021/2021-progress-report; see also, 

e.g., Scott D. Landes et al., Covid–19 Outcomes 

Among People With Intellectual and Developmental 

Disability Living in Residential Group Homes in 

New York State, 13 Disability & Health J. 13, no. 

4 (2020); Scott D. Landes et al., Covid–19 Outcomes 

Among People With Intellectual and Developmental 

Disability in California: The Importance of Type of 

Residence and Skilled Nursing Care Needs, 14 

Disability & Health J. 14, no. 2 (2021) (COVID–19 

death rates were consistently higher for people with 

IDD living in congregate residential settings (such 

as group homes) and receiving 24/7 nursing 

services.). 

522See, e.g., U.S. Dep’t of Health & Hum. 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/civilrights/for-providers/civil-rights-covid19/disabiltyfaqs/index.html. 

523See, e.g., Radaszewski ex Rel. Radaszewski v. 

Maram, 383 F. 3d 599 (7th Cir. 2004); Brantley v. 

Maxwell-Jolly, 656 F. Supp. 2d 1161 (N.D. Cal. 

2009); Vaughn v. Walthall, 968 F. 3d 814 (7th Cir. 

2020). 

524See, e.g., Pa. Protection and Advocacy, Inc. v. 

Pa. Dep’t of Pub. Welfare, 402 F. 3d 374 (3d Cir. 

2005); Martin v. Taft, 222 F. Supp. 2d 940, 981 (D. 

Ohio 2002); United States v. Miss., 400 F. Supp. 3d 

546 (S.D. Miss. 2019); Frederick L. v. Dep’t of Pub. 

Welfare of Pa. 364 F. 3d 487 (3d Cir. 2004); 

Guggenberger v. Minn, 198 F. Supp. 3d 973 (D. 

Minn. 2016). 

525See, e.g., ARC of Wash. State, Inc. v. 

Braddock, 427 F. 3d 615 (9th Cir. 2005); Ball v. 

Kasich, 244 F. Supp. 3d 662 (S.D. Ohio 2017). 

526See, e.g., Pashby v. Delia, 709 F. 3d 307 (4th 

Cir. 2013). 

527See U.S. v. R.I., 1:14–CV–00175 (D.R.I. 2014); 

U.S. v. R.I. and City of Providence, 1:13–CV–00442 

(D.R.I. 2013); Lane v. Brown (formerly Lane v. 

Kitzhaber), 166 F. Supp. 1180 (D. Or. 2016); 

Steward v. Roppe Corp, 3:18–CV–2905 (N.D. Oh. 

Nov. 12, 2020). 

528See, e.g., Townsend v. Quasim, 328 F. 3d 511 

(9th Cir. 2003) (finding covered disabilities 

included diabetic peripheral vascular disease and 

bilateral amputation); Davis v. Shah, 821 F. 3d 231 

(2d Cir. 2016) (plaintiff had multiple sclerosis, 

paraplegia, lymphedema, cellulitis, psoriatic 

arthritis, peripheral neuropathy, and transmetatarsal amputation.); U.S. v. State of Fla., 1:13– 

cv–61576, (S.D. Fla. 2013) (children with complex 

medical needs); Vaughn v. Walthall, 968 F. 3d 814 

(7th Cir. 2020) (quadriplegia); M.R. v. Dreyfus, 663 

F. 3d 1100 (9th Cir. 2011) (one plaintiff had IDD, 

daily seizures, scoliosis, cerebral palsy, 

hypothyroidism, and mood disorder; second 

plaintiff had spinal stenosis, congestive heart 

failure, emphysema, hepatitis B and C, chronic 

bacterial infections, neuropathy in both hands and 

feet, high blood pressure, depression, and bipolar 

disorder; third plaintiff had diabetes, congenital 

glaucoma, macular degeneration, and clinical 

depression); Steimel v. Wernert, 823 F. 3d 902 (7th 

Cir. 2016) (first plaintiff had cerebral palsy; second 

plaintiff had cerebral palsy and ID; third and fourth 

plaintiffs had cerebral palsy, additional plaintiffs 

had intellectual and developmental disabilities); 

Fisher v. Okla. Health Care Auth., 335 F. 3d 1175 

(10th Cir. 2003) (wheelchair user with insulindependent diabetes, hypertension, asthma, 

congestive heart failure, residual bilateral paresis, 

and deep-vein thrombosis; second plaintiff used a 

wheelchair, had cerebral palsy, and had two 

strokes; third plaintiff had difficulty walking and 

standing and had acute mixed connective tissue 

disease with seizure disorder, residual from a stroke 

and cardiac malfunction); Rogers v. Cohen, No. 

5:18–CV–193–D (E.D.N.Y. Feb. 25, 2019) (first 

plaintiff had cerebral palsy; second plaintiff had a 

rare chromosomal abnormality that caused her to be 

intellectually and physically disabled). 

portion of disability-related complaints 

received by OCR. 

Additionally, changes in the 

administration of health services and 

long-term services and supports 

necessitate rulemaking to address 

unnecessary segregation in evolving 

service models. In recent years, there 

has been a growing shift away from 

traditional fee-for-service health care 

towards alternative payment models 

and other new approaches. Many 

recipients have adopted pay-forperformance frameworks and contract 

with third-party entities, such as 

accountable care organizations, 

pharmaceutical benefit managers, and 

managed care organizations, for the 

delivery or management of services to 

individuals with disabilities. The 

growing reliance on managed care in 

State Medicaid programs and other 

changes, such as quality incentives, 

quality assurance activities, and risksharing arrangements, necessitate 

addressing unnecessary segregation in 

these emerging models in this proposed 

rule. 

The COVID–19 public health 

emergency underscored the importance 

of the integration mandate. During the 

pandemic, community services to 

people with disabilities have frequently 

been disrupted, forcing many to enter or 

remain in segregated settings that 

elevated their risk of infection and death 

and isolated them from the broader 

community.521 Such segregation is not 

made permissible by virtue of a public 

emergency. The Department notes that 

civil rights protections, including the 

integration mandate, remain applicable 

during public health emergencies, 

natural disasters, and other public 

crisis.522 While the Department is also 

proposing an integration mandate 

provision under Section 1557, that 

provision relates to benefit design in 

health insurance coverage or other 

health-related coverage. The proposed 

integration provision in this rule does 

not relate to benefit design or other 

health insurance coverage issues. The 

obligations in this proposed provision 

include many that are also articulated in 

Section 1557, but also extend to a 

broader range of programs and activities 

by recipients of Federal financial 

assistance. 

The Department proposes a new 

§ 84.76 articulating the obligations of 

recipients under section 504 to serve 

individuals with disabilities in the most 

integrated setting appropriate to their 

needs, as mandated in proposed 

§ 84.68(d). 

Application 

Proposed § 84.76(a) clarifies that the 

integration mandate applies to programs 

or activities that receive Federal 

financial assistance from the 

Department and to recipients that 

operate such programs and activities. 

Although the specific factual context 

of the Olmstead decision involved 

residential services financed through 

the Medicaid program, the integration 

mandate by its terms has always been 

applied more broadly to any 

administration of programs or activities 

by a recipient. The integration mandate 

has been applied to State and local 

government service systems that rely on 

a range of residential and nonresidential settings, including nursing 

facilities,523 publicly and privately 

operated mental health facilities,524

Intermediate Care Facilities for 

Individuals with Intellectual Disabilities 

(ICF–IIDs) 525 and board and care 

homes.526 Courts and DOJ have also 

applied Olmstead to segregated nonresidential settings such as sheltered 

employment programs.527 Segregation 

can occur in residential services, day 

and employment services, and other 

services that people with disabilities 

may receive. For example, a recipient 

State agency that provides employment 

or day habilitation services to 

individuals with disabilities only in 

congregate settings may violate section 

504. Consistent with this longstanding 

body of precedent and administrative 

pronouncements and the existing 

section 504 regulation, we propose to 

apply the requirement to administer a 

program or activity in the most 

integrated setting appropriate to the 

person’s needs to all programs and 

activities of recipients of HHS funding. 

The Department also notes that 

although the plaintiffs in Olmstead had 

intellectual and mental health 

disabilities, the integration mandate 

applies to all types of disabilities. 

Courts and Federal enforcement 

agencies have applied Olmstead in 

cases involving people with a wide 

range of disabilities, including people 

with intellectual and developmental 

disabilities, other mental disabilities, 

physical disabilities, older adults with 

disabilities, and children with complex 

medical needs.528 OCR has received 

Olmstead complaints filed by or on 

behalf of a wide range of individuals, 

including individuals with physical and 

mental disabilities. 


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529See 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; see also, e.g., Steimel v. Wernert, 823 

F.3d 902, 914 (7th Cir. 2016). 

530See 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 

1 (2020), https://www.ada.gov/olmstead/q&a_

olmstead.htm (last visited Feb. 13, 2023). 

531U.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 

1 (2020), https://www.ada.gov/olmstead/q&a_

olmstead.htm (last visited Feb. 13, 2023); See also 

Disability Advocates Inc. v. Patterson, 653 F. Supp. 

2d 184 (E.D.N.Y. 2009) (finding adult care facilities, 

although physically located in the community, were 

segregated settings because they failed to allow free 

interaction between disabled and non-disabled 

individuals). 

532Olmstead v. L.C., 527 U.S. 581 (1999). 

533 Fisher v. Oklahoma Health Care Auth., 335 

F.3d 1175 (10th Cir. 2003) (finding State’s decision 

to cease providing unlimited, medically-necessary 

prescription benefits for participants in communitybased Medicaid program while continuing to 

provide such benefits to disabled persons who had 

been institutionalized, could place participants in 

community-based program with high prescription 

drug costs and limited monthly income at high risk 

for premature entry into nursing homes). 

534See e.g., M.R. v. Dreyfus, 697 F.3d 706, 733 

(9th Cir. 2012) (finding a reduction in service hours 

for personal care assistance may pose a serious risk 

of institutionalization). 

535See 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 

1 (2020), https://www.ada.gov/olmstead/q&a_

olmstead.htm. 

536See, e.g., Pashby v. Delia, 709 F. 3d 307 (4th 

Cir. 2013) (finding stricter eligibility requirements 

for personal care services for individuals residing 

in their own homes compared to those residing in 

adult care homes violated the integration mandate). 

Discriminatory Action Prohibited 

Proposed § 84.76(b) articulates the 

integration obligation in broad terms, 

indicating that a recipient of Federal 

financial assistance shall administer a 

program or activity in the most 

integrated setting appropriate to the 

needs of a qualified person with a 

disability. Administering a program or 

activity in a manner that results in 

unnecessary segregation of persons with 

disabilities—including through the 

failure to make reasonable modifications 

to policies, practices, or procedures, as 

required in proposed § 84.68(b)(7)— 

constitutes discrimination under this 

section. 

Recipients cannot avoid their 

obligations under section 504 and 

Olmstead by characterizing as a ‘‘new 

service’’ those services that they 

currently or plan to in the future offer 

only in institutional settings. Where a 

recipient provides a service, it cannot 

discriminate against individuals with 

disabilities in the provision of that 

service, including through denial of 

access to the most integrated setting 

appropriate for their needs. Once a 

recipient chooses to provide certain 

services, it must do so in a 

nondiscriminatory fashion by ensuring 

access to such services in the most 

integrated setting appropriate to the 

needs of the qualified individual.529

Segregated Settings 

Proposed § 84.76(c) describes 

characteristics of segregated settings. In 

the context of the integration mandate, 

segregation means the unnecessary 

separation of people with disabilities 

from people without disabilities. 

Unnecessary segregation may occur in a 

variety of settings, such as board-andcare homes, sheltered workshops, and 

other congregate settings populated 

exclusively or primarily with 

individuals with disabilities. It is not 

limited to residential institutions such 

as a psychiatric hospital, an 

Intermediate Care Facility, or a nursing 

home. DOJ provides guidance that 

‘‘[s]egregated settings include, but are 

not limited to: (1) congregate settings 

populated exclusively or primarily with 

individuals with disabilities; (2) 

congregate settings characterized by 

regimentation in daily activities, lack of 

privacy or autonomy, policies limiting 

visitors, or limits on individuals’ ability 

to engage freely in community activities 

and to manage their own activities of 

daily living; or (3) settings that provide 

for daytime activities primarily with 

other individuals with disabilities.’’ 530

Such settings may be in compliance 

with applicable regulations under 

Medicaid or another payer but may 

nonetheless not meet their obligations 

under the integration requirement, as 

discussed in more detail below. 

Even in smaller, disability-specific 

congregate settings located in 

mainstream society, regimentation in 

daily activities, lack of privacy or 

autonomy, policies limiting visitors, or 

limits on individuals’ ability to engage 

freely in community activities and to 

manage their own activities of daily 

living may further isolate and segregate 

people with disabilities.531 All of these 

sorts of restrictions limit the 

opportunity for people with disabilities 

to interact as members of the 

community with nondisabled 

individuals. 

We note that these characteristics 

need not be present for a setting to be 

considered segregated. 

• Integration Question 1: In the 

discussion in the preamble of the 

proposed definition of ‘‘most integrated 

setting,’’ we solicit comments on 

whether the definition should be 

expanded. 

Examples of Discrimination on the Basis 

of Disability 

Proposed § 84.76(d) includes a nonexhaustive list of actions that may lead 

to unnecessary segregation and violate 

this section to the extent that such 

actions result in unnecessary 

segregation, or serious risk of 

unnecessary segregation, of persons 

with disabilities. These include: (1) 

establishing or applying policies and 

practices that limit or condition 

individuals with disabilities’ access to 

the most integrated setting appropriate 

to their needs; 532 (2) providing greater 

benefits or benefits under more 

favorable terms in segregated settings 

than integrated settings; 533 (3) 

establishing or applying more restrictive 

eligibility rules and requirements for 

individuals with disabilities in 

integrated settings than for individuals 

with disabilities in segregated settings; 

and (4) failure to provide communitybased services as alternatives to 

institutional services that results in 

institutionalization, placement in a 

segregated setting, or serious risk of 

institutionalization. This category 

includes, but is not limited to planning, 

service system design, funding, or 

service implementation practices that 

result in such risk. Individuals with 

disabilities need not wait until the harm 

of institutionalization or segregation 

occurs to assert their right to avoid 

unnecessary segregation.534 These 

examples are all drawn from existing 

case law and Federal agency 

guidance.535

For example, a policy that individuals 

with mental health disabilities residing 

in institutional settings have access to 

additional hours of services not made 

available to individuals with 

comparable mental health disabilities 

residing in community-based settings 

may constitute a violation of section 

504’s integration mandate if it leads to 

unnecessary institutionalization or 

serious risk of such 

institutionalization.536 As another 

example, a hospital or acute care 

provider that routinely discharges 

persons with serious health disabilities 

into nursing homes due to inadequate 

discharge planning procedures that fail 

to assess patients for home-based 

supportive services and refer them to 

community-based providers, might be in 

violation of section 504’s integration 

mandate, based on discharge practices 

that result in serious risk of unnecessary 


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537 Fisher v. Okla. Health Care Auth., 335 F.3d 

1175 (10th Cir. 2003). 

538 Id. at 1185, quoting Joint App. at 70. 

539See, e.g., Steimel v. Wernert, Nos. 15–2377, 

15–2389, 2016 WL 2731505, 8 (7th Cir. May 10, 

2016) (holding that at-risk claims were ripe because 

the State’s provided services were inadequate to 

prevent life-threatening gaps in care.)); Pashby v. 

Delia, 709 F.3d 307, 317 (4th Cir. 2013) (holding 

that at-risk claims were ripe even though plaintiffs 

had not perfected administrative appeals of service 

reductions because plaintiffs’ claim focused not on 

the outcome of their individual appeals, but on the 

state’s decision to reduce services); Guggenberger v. 

Minn. 198 F. Supp. 3d 973 (D. Minn. 2016) (holding 

that the state’s denial to young adults with 

disabilities living with parental caregivers of 

‘‘essential Waiver Services based on Defendants’ 

purported mismanagement and administration’’ 

presented a decision ripe for judicial review); U.S. 

Dep’t of Justice, Statement of Interest of the United 

States, Ball v. Kasich, 244 F. Supp 3d 662 (S.D. Oh. 

2017), https://www.ada.gov/olmstead/documents/ 

ball_kasich_soi.pdf.2017), https://archive.ada.gov/ 

olmstead/documents/ball_kasich_soi.pdf. But see 

E.B. ex rel. M.B. v. Cuomo, 16–CIV–735 (W.D. NY, 

July 11, 2020). 

540See, e.g., Guggenberger v. Minn., 198 F. Supp. 

3d 973, 1029, n. 22 (D. Minn. 2016) In 

Guggenberger, the court held that ‘‘the integration 

mandate also applies to non-institutional segregated 

settings.’’ The court concluded that the plaintiffs 

‘‘have plausibly alleged that they are not living, 

working, and receiving services’’ in ‘a setting that 

enables [them] to interact with nondisabled persons 

to the fullest extent possible,’ ’’ Id. at 1030–31, 

quoting 28 CFR pt. 35, app. B (1977) (addressing 

§ 35.130)). 

541See 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 (emphasis added) and 

Olmstead v. L.C., Note 4 (2020), https://

www.ada.gov/olmstead/q&a_olmstead.htm (last 

visited June 18, 2022). 542 In Davis v. Shah, 821 F.3d 231, 262–63 (2d 

Cir. 2016), the court adopted as its standard the DOJ 

Olmstead guidance. 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.’’ 

543See, e.g., Olmstead v. L.C., 527 U.S. 581, 605– 

06 (1999) (‘‘If . . . the State were to demonstrate 

that it had a comprehensive, effectively working 

plan for placing qualified persons with mental 

disabilities in less restrictive settings, and a waiting 

list that moved at a reasonable pace not controlled 

by the State’s endeavors to keep its institutions 

fully occupied, the reasonable modifications 

standard would be met. (emphasis added)). See also 

Makin v. Haw., 114 F.Supp.2d 1017, 1034 (D. Haw. 

1999), a case decided 11 months after Olmstead, in 

which the court found that individuals in the 

community on the waiting list for community-based 

services offered through Hawaii’s Medicaid 

program could challenge administration of program 

for violating title II integration mandate because the 

program could potentially force the plaintiffs into 

institutions; Cruz v. Dudek, No. 10–23048–CIV, 

2010 WL 4284955 (S.D. Fla. Oct. 12, 2010), report 

and recommendation adopted sub nom. Cruz v. 

Arnold, No. 10–23048–CIV, 2010 WL (finding that 

plaintiffs on waiting list for services met burden for 

a preliminary injunction based on imminent risk of 

institutionalization.); Arc of Wash. State v. 

Braddock, 427 F. 3d 615, 621 (9th Cir. 2005) 

(finding no violation of the ADA by the state of 

Washington because ‘‘there is a waiting list that 

admits new participants when slots open up.’’ The 

court further stated that ‘‘all Medicaid-eligible 

disabled persons will have an opportunity to 

participate in the program once space becomes 

available, based solely on their mental-health needs 

and position on the waiting list’’). 

544See, e.g., Steimel v. Wernert, 823 F.3d 902, 913 

(7th Cir. 2016) (holding that at-risk claims were ripe 

because the plaintiffs ‘‘have provided evidence that 

they need constant supervision and, despite their 

best efforts, the services [the state] provided . . . 

have proved inadequate to prevent life-threatening 

gaps in care.’’); Pashby v. Delia, 709 F.3d 307, 317 

(4th Cir. 2013) (holding that the state’s denial to 

young adults with disabilities living with parental 

caregivers of ‘‘essential Waiver Services based on 

Defendants’ purported mismanagement and 

administration’’ presented a decision ripe for 

judicial review. ‘‘[T]here is nothing in the plain 

language of the regulations that limits protection to 

persons who are currently institutionalized’’). 

545See Radaszewski ex rel. Radaszewski v. 

Maram, 383 F.3d 599, 611 (7th Cir. 

2004)(‘‘Although a State is not obliged to create 

entirely new services or to otherwise alter the 

substance of the care that it provides to Medicaid 

recipients in order to accommodate an individual’s 

desire to be cared for at home, the integration 

mandate may well require the State to make 

reasonable modifications to the form of existing 

services in order to adapt them to communityintegrated settings.’’). 

546See, e.g., M.R. v. Dreyfus, 663 F. 3d 1100 (9th 

Cir. 2011) (finding across-the-board service 

reductions in Medicaid personal assistance services 

posed a serious risk of institutionalization); Oster v. 

Lightbourne, No. C 09–4668 CW, 36 (N.D. Cal. Mar. 

2, 2012) (finding a twenty percent reduction in 

service hours ‘‘will compromise the health and 

well-being of . . . recipients such that they will be 

at serious risk of institutionalization’’); Steimel v. 

Wernert, 823 F. 3d 902 (7th Cir. 2016) (holding that 

a changed cap in waiver services hours, which 

dramatically curtailed plaintiffs’ ability to 

participate in community activities, violated 

integration mandate); 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 9 (2020) https://

www.ada.gov/olmstead/q&a_olmstead.htm https://

www.ada.gov/olmstead/q&a_olmstead.htm (last 

visited Feb.13, 2023). 

placement within an institution or other 

segregated setting. 

Protections from discrimination on 

the basis of disability are violated by 

policies that place individuals at serious 

risk of institutionalization or 

segregation. Fisher v. Oklahoma Health 

Care Authority, decided shortly after 

Olmstead, recognized that the 

integration mandate prohibited 

practices that place individuals at 

serious risk of institutionalization. In 

Fisher, the Tenth Circuit held that 

‘‘disabled persons . . . who stand 

imperiled with segregation’’ were not 

required to already be institutionalized 

to assert claims under Olmstead.537

Instead, the court held, they need only 

show that they were ‘‘at high risk for 

premature entry.’’ 538 In the years since 

Fisher, numerous courts have applied 

Olmstead to protect individuals at risk 

of unnecessary segregation.539 They 

have also held that the integration 

mandate extends not only to a serious 

risk of institutionalization but also to a 

serious risk of unjustified isolation.540

DOJ has promulgated guidance stating 

the ADA’s integration mandate extends 

‘‘to persons at serious risk of 

institutionalization or segregation and 

are not limited to individuals currently 

in institutional or other segregated 

settings.’’ 541 Proposed § 84.76(d)(4) 

makes clear that the same obligation 

would apply under section 504 to 

recipients of HHS funding. In Davis v. 

Shah, the Second Circuit cited the DOJ 

guidance to make clear that ‘‘a plaintiff 

‘need not wait until the harm of 

institutionalization or segregation 

occurs or is imminent’ in order to bring 

a claim. . . .’’ 542

The Department proposes to codify 

this longstanding case law and DOJ 

guidance. A recipient could place 

individuals with disabilities at serious 

risk of unnecessary segregation in a 

variety of ways. It could do so by failing 

to provide services that are necessary for 

those individuals to live, work, and 

receive services in community-based 

settings. A recipient could also create 

such a risk by cutting services or 

budgets where those cuts will likely 

cause a decline in health, safety, or 

welfare that would lead to an 

individual’s placement in an institution 

or other segregated setting. Examples 

include failing to provide services or 

alternatives other than institutional care 

to people with urgent needs who are on 

waiting lists for community services,543

or a recipient’s decision to deny or 

reduce services on which people with 

disabilities rely to live, work, and 

recreate independently in the 

community.544 While the ADA and 

section 504 do not require a recipient to 

provide services at a specified standard 

of care or tailored to an individual’s 

needs, a recipient cannot discriminate 

by providing some services only in less 

integrated settings.545

Service reductions resulting from 

budget cuts—even where permitted 

under Medicaid and other public 

program rules—may violate the 

integration mandate if they create a 

serious risk of institutionalization or 

segregation.546 In making such service 

reductions, recipients have a duty to 

take reasonable steps to avoid placing 

individuals at risk of institutionalization 

or segregation. For example, recipients 

may be required to make exceptions to 

the service reductions or to provide 

alternative services to individuals who 

would be forced into institutions as a 

result of the cuts. If providing 

alternative services, recipients must 

ensure that those services are actually 

available and that individuals can 


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547See 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 

9 (2020) https://www.ada.gov/olmstead/q&a_

olmstead.htm https://www.ada.gov/olmstead/q&a_

olmstead.htm (last visited Feb.13, 2023). 

548 42 U.S.C. 1396a. 

549See 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 

7 (2020), https://www.ada.gov/olmstead/q&a_

olmstead.htm (last visited Feb.13, 2023) citing U.S. 

Dep’t of Health & Hum. Servs., Ctrs. for Medicare 

& Medicaid Servs., Olmstead Update No. 4, 4 (Jan. 

10, 2001), https://www.cms.gov/smdl/downloads/ 

smd011001a.pdf; U.S. Dep’t of Health & Hum. 

Servs., Ctrs. for Medicare & Medicaid Servs, 

Medicaid Program: Home and Community-Based 

State Plan Services, 79 FR 3016 (Jan. 16, 2014), 

https://www.federalregister.gov/documents/2014/ 

01/16/2014-00487/medicaid-program-state-planhome-and-community-based-services-5-year-periodfor-waivers-provider (In the preamble to the final 

HCBS settings rule, CMS makes clear that ‘‘this 

regulation change does not alleviate states’ 

independent obligations under the Americans with 

Disabilities Act or the Supreme Court’s Olmstead 

decision.’’); U.S. Dep’t of Health & Hum. Servs., 

Ctrs. for Medicare & Medicaid Servs, Instructions, 

Technical Guidance and Review Criteria: 

Application for a § 1915(c) Home and Community 

Based-Waiver, 15 (2019), https://www.hhs.gov/ 

guidance/sites/default/files/hhs-guidancedocuments/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.’’). 

550 In Davis v. Shah, 821 F.3d 231, 264 (2d Cir. 

2016), the court discussed the separate obligations 

of the ADA and Medicaid Act, noting ‘‘New York’s 

conceded discretion to decide whether to provide 

coverage of orthopedic footwear and compression 

stockings under the Medicaid Act, 42 U.S.C.S. 

§ 1396 et seq., does not affect its duty to provide 

those services in a non-discriminatory manner 

under the Americans with Disabilities Act (ADA). 

A state’s duties under the ADA are wholly distinct 

from its obligations under the Medicaid Act.’’). In 

Wilborn v. Martin, 965 F. Supp. 2d 834, 847 (M.D. 

Tenn. 2013), the court noted that CMS approval is 

independent from obligations under the ADA and 

Rehabilitation Act (RA, explaining ‘‘[. . .] the ADA 

and the RA stand independent of the Medicaid 

statute and simply require consideration of an 

individual enrollee’s medical needs and the impact 

of providing such needs for similarly situated 

enrollees.’’ 

551See, e.g., U.S. Dep’t of Health & Hum. Servs., 

Ctrs. for Medicare & Medicaid Servs, Alabama 

Initial Approval (Feb. 21, 2017), https://

www.medicaid.gov/sites/default/files/2019-12/alinitial-approval_0.pdf (‘‘[i]t is important to note that 

CMS’ initial approval of an STP solely addresses 

the state’s compliance with the applicable Medicaid 

authorities. CMS’ approval does not address the 

state’s independent and separate obligations under 

the Americans with Disabilities Act, section 504 of 

the Rehabilitation Act, or the Supreme Court’s 

Olmstead decision.’’); see also U.S. Dep’t of Health 

& Hum. Servs., Ctrs. for Medicare & Medicaid Servs, 

Alaska Final Approval (Aug. 22, 2018), https://

www.medicaid.gov/sites/default/files/2019-12/akfinal-appvl_0.pdf. 

552See 28 CFR 35.130(b),(d). See also Steimel v. 

Wernert, 823 F.3d 902 (7th Cir. 2016) (finding that 

a reduction of Medicaid waiver hours, which 

results in a loss of ability to participate in the 

community and increases the risk of medical 

complications, puts plaintiffs at risk of 

institutionalization in violation of the integration 

mandate). 

553See e.g., Rodriguez v. City of New York, 197 

F.3d 611, 615–16 (2d Cir. 1999) (neither the ADA 

nor the Rehabilitation Act compels the City to offer 

safety monitoring to people with disabilities so that 

they can remain at home, where safety monitoring 

was not an existing Medicaid service offered.); 

Alexander v. Choate, 469 U.S. 287, 303 (Jan. 9, 

1985). 

554The integration mandate imposes neither a 

‘‘standard of care’’ nor ‘‘a certain level of benefits 

to individuals with disabilities.’’ Olmstead, 527 

U.S. at 603 n. 14; Amundson ex rel. Amundson v. 

Wisconsin Dep’t of Health Servs., 721 F.3d 871, 875 

(7th Cir. 2013) (holding that the ADA does not 

support ‘‘a claim of absolute entitlement’’ to 

Medicaid benefits); see also Cohon ex rel. Bass v. 

New Mexico Dep’t of Health, 646 F.3d 717, 729 

(10th Cir. 2011) (holding that ADA did not give 

plaintiff ‘‘legal entitlement’’ to specific requested 

services and that she did not state an Olmstead 

claim because she failed to allege that the program 

would lead to her unjustified isolation or premature 

institutionalization); Rodriguez v. City of New York, 

197 F.3d at 619 (noting that ‘‘Olmstead reaffirms 

that the ADA does not mandate the provision of 

new benefits.’’). 

actually secure them to avoid 

institutionalization or segregation.547

Budget cuts or other otherwise 

permissible actions may also violate 

obligations under section 504’s 

integration mandate if they result in 

more favorable access to services in 

segregated settings than in integrated 

settings. 

Civil Rights Obligations as Distinct 

From Medicaid Law and Regulations 

The Medicaid program, established in 

Title XIX of the Social Security Act, is 

a voluntary, joint Federal-State program. 

Under the program, the Federal 

Government matches a portion of 

expenses incurred by participating 

states for expenditures for Medicaid 

beneficiaries. State participation in the 

Medicaid program is not mandatory, but 

if a State chooses to participate, the 

Social Security Act requires it to comply 

with Federal statutory and regulatory 

requirements—and all states participate 

in the program.548 Among other 

functions, Medicaid is the major source 

of financing for long-term services and 

supports provided to people with 

disabilities to facilitate living 

independently in the community. The 

majority of home and community-based 

services are provided through section 

1915(c) Medicaid waivers, as well as 

through Medicaid State plan authorities 

(such as 1915(i), (j) and (k)), and section 

1115 Medicaid demonstrations. States 

have significant discretion in how they 

design these programs, including setting 

eligibility requirements and limitations 

for home and community-based waiver 

services. Unlike Medicaid State plan 

benefits, waiver enrollment can be 

capped, resulting in waiting lists when 

the number of people seeking services 

exceeds the amount of available 

funding. HHS and DOJ have made clear 

that obligations under the integration 

mandate ‘‘are independent from the 

requirements of the Medicaid 

program,’’ 549 and courts have also 

recognized this distinction.550

For example, a State might violate the 

integration mandate, but not the 

Medicaid law or implementing 

regulations, by making cuts to HCBS 

programs while at the same time 

increasing funding to institutional 

services. The section 504 proposed rule 

would not change the requirements of 

the Medicaid program in the Social 

Security Act or in Medicaid regulations, 

nor would it require CMS to assess 

compliance with section 504 as part of 

their work approving Medicaid 

proposals (i.e., Medicaid waivers, State 

plans, and demonstrations). 

CMS regularly communicates to states 

that they have separate and independent 

obligations under Medicaid and other 

civil rights laws. For example, CMS 

explicitly articulates that compliance 

with the Medicaid statute and rules is 

a separate determination and obligation 

from compliance with the ADA and 

section 504, in both its initial and final 

approval letters for State Transition 

Plans (STPs) 551 under the HCBS 

settings rule. 

A State may violate the integration 

mandate in administering its system of 

services, including approved HCBS 

services under Medicaid waivers or 

other authorities, if it does so in a 

manner that unnecessarily segregates 

people with disabilities and fails to 

make available sufficient services in 

integrated, community-based settings. 

552 Section 504 does not require states 

to create new programs to assist people 

with disabilities,553 nor does it require 

states to provide a particular standard of 

care or level of benefits.554 However, 

states must adhere to the disability 

nondiscrimination requirements— 

including the integration mandate— 

with regard to the services they in fact 


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555See Olmstead v. L.C., 527 U.S. at 603; see also 

Radaszewski v. Maram, 383 F.3d at 609 (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.’ ’’). 

556See 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 

7 (2020), https://www.ada.gov/olmstead/q&a_

olmstead.htm (last visited Feb. 13, 2023). 

557U.S. Dep’t of Health & Hum. Servs., Off. for 

Civil Rts., Guidance and Resources for Long Term 

Care Facilities: Using the Minimum Data Set to 

Facilitate Opportunities to Live in the Most 

Integrated Setting (May 20, 2016). 

558Olmstead v. L.C., 527 U.S. at 603 (1999) 

(quoting 28 CFR 35.130(b)(7)). 

559 28 CFR 35.130(b)(7)(i)(‘‘A public entity shall 

make reasonable modifications . . . unless the 

public entity can demonstrate that making the 

modification would fundamentally alter the nature 

of the service, program, or activity.’’) (emphasis 

added). See also Brown v. D.C., 928 F. 3d 1070, 

1077 (D.C. Cir. 2019) (‘‘Although the [Olmstead] 

Court did not expressly declare that the State bears 

the burden of proving the unreasonableness of a 

requested accommodation . . . we believe it does 

. . .’’); Steimel v. Wernert, 823 F. 3d 902, 914–16 

(7th Cir. 2016) (‘‘It is the state’s burden to provide 

that the proposed changes would fundamentally 

alter their programs.’’). 

560Olmstead v. L.C., 527 U.S. at 604–07. A public 

entity raising a fundamental alteration defense 

based on an Olmstead plan must show that it has 

developed a comprehensive, effectively working 

Olmstead plan and that it is implementing the plan. 

561 29 U.S.C. 701(b)(1). 

562 45 CFR part 84, app. A (addressing 

§ 84.4(b)(2)). 

563U.S. Dep’t of Health & Hum. Servs., Off. for 

Civil Rts., Guidance and Resources for Long Term 

Care Facilities: Using the Minimum Data Set to 

Facilitate Opportunities to Live in the Most 

Integrated Setting (May 20, 2016). 

564The Joint Commission on Accreditation of 

Healthcare Organizations found that 

communication failures were involved in over 70 

percent of patient safety events that result in death, 

permanent harm, or severe temporary harm. 

Katherine Dingley et al., Improving Patient Safety 

Through Provider Communication Strategy 

Enhancements, Advances in Patient Safety: New 

Directions and Alternative Approaches (Vol. 3: 

Performance & Tools) (2008), https://www.ncbi.nlm.

nih.gov/books/NBK43663/. When asked to select 

contributing factors to patient care errors, nurses 

cited communication issues with physicians as one 

Continued 

provide.555 In addition, states may be 

required to offer in an integrated setting 

services that are only offered in a 

segregated setting. Proposed 

§ 84.76(d)(2) includes as an example of 

a specific prohibition ‘‘providing greater 

benefits or benefits under more 

favorable terms in segregated settings 

than in integrated settings.’’ The type 

and level of services needed and what 

services the State provides are factspecific inquiries. 

Providing services beyond what a 

State currently provides under its 

Medicaid program may not be a 

fundamental alteration, and the ADA 

and section 504 may require states to 

provide those services, under certain 

circumstances. For example, the fact 

that a State is permitted to ‘‘cap’’ the 

number of individuals it serves in a 

particular waiver program under 

Medicaid does not exempt the State 

from serving additional people in the 

community to comply with the ADA or 

other laws.556 This same logic applies to 

recipients under section 504, who may 

be in violation of their obligations under 

section 504’s integration mandate even 

when they are in compliance with the 

requirements of other public programs, 

such as terms and conditions for 

participation for providers participating 

in Medicare, Federal requirements for 

State Medicaid agencies, and other 

requirements distinct from those of the 

integration mandate. For example, a 

long-term care facility may violate 

section 504 if the facility continues an 

individual’s inpatient placement when 

the individual could live in a more 

integrated setting and desires to do 

so.557 To comply with the integration 

mandate, inpatient facilities may be 

required to discharge patients in such 

circumstances. In the process of 

planning for such discharges, inpatient 

facilities (including hospitals) may be 

required to develop individualized 

treatment and discharge plans and 

coordinate with local community-based 

service providers to ensure that ongoing 

services, like personal care, without 

which an individual is at risk of 

institutionalization and which are 

offered in the inpatient setting, are 

available to the individual in the 

community. 

Limitations 

A recipient’s obligation under the 

integration mandate to provide services 

in the most integrated setting 

appropriate for the needs of a qualified 

individual is not unlimited. A recipient 

may be excused in instances where it 

can prove that the requested 

modification would result in a 

‘‘fundamental alteration’’ of its service, 

program, or activity.558 Proposed 

paragraph (e) provides 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. 

However, the recipient bears the burden 

of establishing that a requested 

modification to its program or activity to 

facilitate access to the most integrated 

setting would constitute a fundamental 

alteration.559 For a recipient like a State, 

a showing of a fundamental alteration 

would require showing ‘‘that, in the 

allocation of available resources, 

immediate relief for plaintiffs would be 

inequitable, given the responsibility the 

State [or local government] has taken for 

the care and treatment of a large and 

diverse population of persons [with 

disabilities].’’ 560

When section 504 was enacted in 

1973, Congress recognized the shift to 

provide services to people with 

disabilities in the community instead of 

in institutions and to integrate people 

with disabilities into society. Congress’ 

express goal was, in part, ‘‘to empower 

individuals with disabilities to 

maximize employment, economic selfsufficiency, independence, and 

inclusion and integration into 

society.’’ 561 The interpretive guidance 

to the existing regulation explains that 

the phrase ‘‘most integrated setting 

appropriate’’ was added to existing 

§ 84.4(b)(2), contained in § 84.68(d) of 

the proposed rule, to reinforce the 

concept that the provision of 

unnecessarily separate or different 

services is discriminatory.562 The only 

qualification to be covered by the HHS 

section 504 regulations is that an entity 

be a recipient of Federal financial 

assistance from HHS. Accordingly, a 

number of individual providers who are 

not public entities are covered by 

section 504. 

For example, in the 2016 ‘‘Guidance 

and Resources for Long Term Care 

Facilities,’’ the Department described 

application of section 504’s integration 

mandate to these recipients: 

Long-term care facilities receive Federal 

financial assistance by participating in 

programs such as Medicare and Medicaid. 

Section 504 prohibits discrimination based 

on disability, including the unnecessary 

segregation of persons with disabilities. 

Unjustified segregation can include 

continued placement in an inpatient facility 

when the resident could live in a more 

integrated setting. This concept was set forth 

in the Olmstead decision, which interpreted 

the same requirements in the Americans with 

Disabilities Act.563

• Integration Question 2: We seek 

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. 

Subpart H—Communications 

Communication failures in the 

context of the receipt of health and 

human services can be life-altering or 

even life-ending.564 Ensuring that 


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of the two most highly contributing factors, 

according to the National Council of State Boards 

of Nursing reports. 565For example, since 2015, OCR has received 

523 self-identified effective communication 

complaints. These numbers are based on allegations 

made by complainants in OCR’s system of record, 

not findings by OCR on the merits after 

investigations. 566Examples of these resolution agreements 

appear on OCR’s website. U.S. Dep’t of Health & 

Human Servs., Off. For Civil Rts., Recent Civil 

Rights Resolution Agreements & Compliance 

Reviews, https://www.hhs.gov/civil-rights/forproviders/compliance-enforcement/agreements/ 

index.html (last visited Feb. 13, 2023). See e.g., U.S. 

Dep’t of Health & Hum. Servs., Off. for Civil Rts., 

HHS OCR Secures Voluntary Resolution with 

CHRISTUS Trinity Mother Frances Health System 

to Strengthen its Provision of Auxiliary Aids and 

Services to Individuals Who Are Deaf or Hard of 

Hearing (Jan. 16, 2020), https://www.hhs.gov/about/ 

news/2020/01/16/hhs-ocr-secures-voluntaryresolution-with-christus-trinity.html?language=en. 

567See U.S. Dep’t of Health & Hum. Servs., Off. 

for Civil Rts., Maryland Orthopedic Practice Agrees 

to Provide Deaf 6-year-old a Qualified Interpreter 

(July 24, 2019), https://www.hhs.gov/about/news/ 

2019/07/24/maryland-orthopedic-practice-agreesprovide-deaf-6-year-old-qualifiedinterpreter.html?language=en. 568These examples are illustrative of some of the 

enforcement activities OCR has undertaken 

concerning allegations of effective communication 

discrimination. OCR periodically receives hundreds 

of complaints alleging discrimination based on 

effective communication. For examples of 

additional enforcement activities regarding effective 

communication, see U.S. Dep’t of Health & Hum. 

Servs., Off. for Civil Rts., Effective Communication 

in Hospitals—Disability; Enforcement Success 

Stories Involving Persons who are Deaf or Hard of 

Hearing, https://www.hhs.gov/civil-rights/forindividuals/special-topics/hospitals-effectivecommunication/selected-complaint-investigationsresolution-agreements/index.html. 

569See, e.g., Nicole D. Agaronnik et al., 

Communicating with Patients with Disability: 

Perspectives of Practicing Physicians, 34 J. of Gen. 

Internal Med. 34(7), 1139–45 (2019), https://doi.org/ 

10.1007/s11606-019-04911-0; see also Tyler G. 

James et al., Communication Access in Mental 

Health and Substance Use Treatment Facilities for 

Deaf American Sign Language Users, 41 Health Aff. 

1417 (Oct. 2022), https://doi.org/10.1377/ 

hlthaff.2022.00408. 

570U.S. Dep’t of Health & Hum. Servs., Ctrs. for 

Disease Control & Prevention, Disability Impacts All 

of Us (Sept. 16, 2020), www.cdc.gov/ncbddd/ 

disabilityandhealth/infographic-disability-impactsall.html. 

571 65 CFR 79368. 

572 29 U.S.C. 701(a)(3). 

communications with individuals with 

disabilities are as effective as 

communications with others (commonly 

referred to as ‘‘effective 

communication’’) helps to avoid such 

communication failures and protect the 

health of individuals with disabilities. 

Over the years, OCR has received 

numerous complaints alleging that 

recipients have failed to ensure effective 

communication to individuals with 

disabilities or failed to provide 

appropriate auxiliary aids and services 

to individuals with disabilities in both 

the health care and social services 

context.565 In many of these cases, OCR 

identified compliance concerns with 

Federal nondiscrimination laws and 

entered into agreements with recipients 

to address these concerns. 

One such example is the VRA 

between OCR and a health system, that 

OCR announced on January 16, 2020.566

In this case, OCR initiated a compliance 

review following receipt of a complaint 

that the health system’s clinic and 

hospital failed to provide adequate or 

timely American Sign Language (ASL) 

interpreter services despite multiple 

requests. This complaint, combined 

with allegations from additional 

patients, led OCR to conduct a review 

of the health system’s policies and 

procedures regarding its obligations to 

ensure effective communication under 

section 504 and section 1557. The VRA 

led to the health system strengthening 

its provision of auxiliary aids and 

services while placing additional 

emphasis on effective communication. 

Similarly, OCR reached a VRA with a 

health institute following a 2017 

complaint alleging that it failed to 

provide a qualified ASL interpreter to a 

deaf six-year-old child requiring 

physical therapy, in violation of both 

section 504 and section 1557.567 The 

complaint was one of five alleging that 

the health institute had failed to provide 

effective communication to individuals 

who are deaf or hard of hearing. As a 

result of the resolution, the health 

institute agreed to take steps to improve 

its review and assessment of sign 

language interpreters, provide staff 

training with OCR’s technical 

assistance, and submit reports to OCR 

regarding its ongoing compliance 

activities.568

Notwithstanding OCR’s extensive 

enforcement activities in this area, 

including through complaint 

resolutions, compliance reviews, and 

the provision of technical assistance, 

ineffective communication with 

individuals with disabilities remains a 

persistent and significant discrimination 

issue.569 Many of the complaints OCR 

receives involve the denial of or limited 

access to HHS-funded services for 

individuals who are deaf or hard of 

hearing or who are blind or have low 

vision. Data from the Centers for Disease 

Control and Prevention indicates that 

individuals with disabilities comprise 

more than 26 percent of adults in the 

nation, over 10% of whom have a 

hearing or vision disability.570

The Department is proposing to 

remove a limitation that currently 

appears in § 84.52(d) (a subsection being 

replaced by this Communications 

subpart, the auxiliary aids provision in 

the Health, Welfare, and other Social 

Services subpart. That subsection 

contains special rules for recipients 

with less than 15 employees. 

Section 84.52(d) directs that the 

obligation to provide auxiliary aids is 

mandatory for recipients with 15 or 

more employees, but indicates that 

Departmental officials may require 

recipients employing fewer than 15 

persons to comply with this 

requirement ‘‘when [compliance] would 

not significantly impair the ability of the 

recipient to provide its benefits or 

services.’’ The Department is proposing 

to remove this limitation for several 

reasons. First, this limitation is of 

minimal consequence because 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. Second, 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. Third, the 

Department already has the discretion 

whether to impose these obligations on 

recipients with fewer than 15 

employees, and as of December 19, 

2000, has required all 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.571 Finally, given 

that Congress specifically intended that 

the principles of the ADA guide the 

policies, practices, and procedures 

developed under the Rehabilitation Act, 

the Department believes the removal of 

this limitation better serves the purpose 

shared by both the ADA and 

Rehabilitation Act to enable individuals 

with disabilities to ‘‘enjoy full inclusion 

and integration into the economic, 

political, social, cultural, and 

educational mainstream of American 

society.’’ 572

The Department has investigated and 

resolved numerous complaints 

regarding effective communication over 

the decades by recipients with fewer 

than fifteen employees. The importance 

of ensuring that individuals with 

disabilities are able to understand and 

engage in health and human services 

programs and activities drives this 

proposed change. 

The current regulations implementing 

section 1557 require certain covered 

entities to ensure effective 

communication for individuals with 


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573See 45 CFR 92.102, requiring that health 

programs or activities receiving FFA from the 

Department, programs or activity administered by 

an Executive agency, and entities established under 

Title I of the ACA, provide appropriate auxiliary 

aids and services irrespective of size. 

574See 45 CFR 92.102. For a discussion of how 

adults with communication disabilities experience 

poorer health outcomes, see Michelle L. Stransky et 

al., Adults with Communication Disabilities 

Experience Poorer Health and Healthcare Outcomes 

Compared to Persons Without Communication 

Disabilities, 33 J. of G. Internal Med. 33(12), 2147– 

55 (2018), http://dx.doi.org/10.1007/s11606-018- 

4625-1. 

575See 85 FR 37160, 37213–215 (preamble 

addressing comments on effective communication 

provisions). 

576 85 FR 37160, 37213. 

577William F. Sullivan, Supporting Adults with 

Intellectual and Developmental Disabilities to 

Participate in Health Care Decision Making, 64 Can. 

Fam. Physician (Suppl 2): S32–S36 (Apr. 2018), 

https://www.ncbi.nlm.nih.gov/pmc/articles/ 

PMC5906782/. 

578See 28 CFR 35.160 (effective communication 

requirements for public entities); 28 CFR 

35.130(b)(7) (requirement for public entities to 

make reasonable modifications); 45 CFR 84.52(d) 

(requirement to provide auxiliary aids in health, 

welfare, and other social services); 45 CFR 92.105 

(requirement for certain health programs and 

activities to make reasonable modifications); 45 

CFR 92.102 (effective communication requirements 

for certain health programs and activities). 

579Nat’l Council on Disability, Beyond 

Guardianship: Toward Alternatives that Promote 

Greater Self-Determination (Mar. 22, 2018), https:// 

ncd.gov/sites/default/files/NCD_Guardianship_

Report_Accessible.pdf. 

disabilities.573 Because noncompliance 

in this area is so harmful to individuals 

with disabilities, OCR included 

provisions setting out specific and 

comprehensive standards relating to 

effective communication and the 

provision of auxiliary aids and services 

in the section 1557 final rule,574 which 

incorporated the effective 

communication and auxiliary aids 

provisions from the ADA title II 

regulation.575 In particular, the section 

1557 final rule recognized that effective 

communication helps ensure equal 

opportunities in the health care setting, 

leading to better health outcomes for 

individuals with disabilities.576

Likewise, this proposed section 

recognizes the important role that 

effective communication plays in 

ensuring equal opportunities in both 

health and human service programs and 

activities. 

Part of effective communication is 

ensuring that individuals with 

disabilities, including those with 

cognitive, neurological, and psychiatric 

disabilities, have the appropriate 

information necessary to make health 

care decisions. Communication between 

a person seeking medical treatment and 

their health care provider is a basic 

component of health care and in some 

circumstances leads to a formal process 

of granting of permission for treatment, 

usually referred to as informed consent. 

The information being provided may 

include information on the names and 

details of procedures or treatment that 

the health care provider recommends, 

other available alternatives, and the 

risks and benefits of the treatment and 

other options, including foregoing any 

treatment. The success of this process 

requires the person seeking treatment to 

understand the options and make an 

informed choice in determining the 

course of treatment. Research suggests 

that methods of communication, along 

with the quality of the interactions 

between the provider and the patient 

with a cognitive disability, play more 

important roles in the patient’s ability to 

make informed decisions than 

intellectual and adaptive functioning.577

The Department is concerned that some 

providers erroneously believe that 

certain patients with disabilities, 

especially those with cognitive, 

neurological, or psychiatric disabilities, 

are unable to understand discussions 

concerning their health care, and 

instead of communicating directly with 

the patient, communicate only with 

family members or companions. In 

instances where providers base these 

communication decisions on 

stereotypes or misconceptions about the 

patient’s ability to understand or make 

medical decisions, they deny the patient 

autonomy and control over their health 

care. Fundamental concepts of Federal 

disability rights laws, including rights to 

effective communication and reasonable 

modifications, require that individuals 

with disabilities, including those with 

cognitive, neurological, and psychiatric 

disabilities are afforded the information 

needed to have an equal opportunity to 

make informed health care decisions.578

Effective communication for patients 

with cognitive, neurological, and 

psychiatric disabilities may require 

auxiliary aids and services or strategies 

different from those employed with 

patients with other disabilities. For 

example, while an individual who is 

deaf or hard of hearing may require an 

ASL interpreter to effectively 

communicate with a provider, an 

individual with a cognitive disability 

may require additional time with the 

provider to ask questions and receive 

plain language answers about a specific 

health care decision. 

A specific type of auxiliary aid or 

service may be the acquisition or 

modification of equipment or devices, 

including for augmentative and 

alternative communication, and the 

provision of training and assistance to 

the individual with a disability on how 

to use them. Augmentative and 

alternative communications devices 

include, but are not limited to, speech 

generating devices, single-message 

devices, computers, tablets, 

smartphones, amplification devices, 

telecommunications devices, voice 

amplifiers, artificial phonation devices, 

picture and symbol boards, paper-based 

aids, and other equipment or devices 

used to compensate for impairments to 

speech-language production or 

comprehension, including spoken and 

written modes of communication. 

In some instances, the use of 

augmentative and alternative 

communication is necessary for 

individuals with certain disabilities that 

impair speech production and 

comprehension to access vital health 

and human services programs and 

activities. Often, the most effective way 

for recipients to ensure effective 

communication is to provide training on 

the use of this equipment. 

Section 504 also requires recipients to 

provide reasonable modifications to 

policies, practices, or procedures to 

individuals with disabilities when 

necessary to avoid discrimination 

unless the modification would 

fundamentally alter the nature of the 

program or activity at issue. Reasonable 

modifications may include 

modifications to how a provider 

communicates with or delivers 

information to a patient with a 

disability. For example, a reasonable 

modification for a patient with a mental 

disability may be to allow a third-party 

support person to join the conversation 

and allow that person to assist the 

patient in understanding their options 

and coming to an independent decision 

on how to proceed. The person with a 

disability may be in a supported 

decision-making arrangement with the 

third-party support person, but no such 

formal role is required. 

Another reasonable modification may 

be for the recipient to provide 

information in a format that is 

accessible to individuals with cognitive, 

developmental, intellectual, or 

neurological disabilities such as through 

plain language. NCD has urged the 

Department to issue guidance to 

medical professionals requesting that 

they explain procedures and draft 

documents in plain language to better 

serve patients with disabilities.579

Under some circumstances, plain 

language may be a reasonable 

modification to remove barriers between 

individuals with certain disabilities and 

the information necessary to make 

informed health and human services 

decisions. Information written in plain 

language may afford individuals with 


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580 45 CFR 92.102, 28 CFR 35.160. 

581Section 1557 also requires that certain 

recipients and State Exchanges provide appropriate 

auxiliary aids and services. 45 CFR 92.102. 

certain disabilities an equal opportunity 

to comprehend important service, 

program, or activity information. 

Sometimes, a plain language oral 

explanation, instead of a written one, 

may be a sufficient modification. 

However, in many circumstances, it 

may be a fundamental alteration of the 

nature of a recipient’s program or 

activity to require extensive technical 

documents to be produced in plain 

language. 

• Communications Question 1: The 

Department requests comment on the 

importance of providing information in 

plain language for individuals with 

cognitive, developmental, intellectual, 

or neurological disabilities. 

• Communications Question 2: 

Additionally, the Department requests 

comment on whether plain language is 

more appropriately considered a 

reasonable modification that an 

individual must request, or if it should 

be considered an auxiliary aid or 

service. 

§ 84.77 General 

The Department proposes to add a 

new subpart H to the section 504 

implementing regulations to address 

ongoing communication issues. The 

new provisions reflect the same 

requirements concerning effective 

communication adopted by the 

Department in the 2020 section 1557 

Final Rule, which are based on the 

effective communication requirements 

of title II of the ADA.580 Proposed 

§ 84.77(a)(1), requires that a recipient 

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 

in such programs or activities. Proposed 

§ 84.77(a)(2), as well as the definition 

section at § 84.10, defines 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 

proposed text at § 84.77(b)(1) requires 

that a recipient provide appropriate 

auxiliary aids and services to 

individuals with disabilities, where 

necessary to afford such individuals an 

equal opportunity to access the benefit 

or service in question. Section 

84.77(b)(2) states that the type of 

auxiliary aid or services needed will 

vary in accordance with various factors. 

That paragraph further provides that, in 

determining what types of auxiliary aids 

and services are necessary, a recipient 

shall give primary consideration to the 

request of the individual with a 

disability. In addition, it states that 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.581

Proposed § 84.77(c) states that 

recipients are not allowed to require an 

individual with a disability to bring 

another individual to interpret for them 

and provides limited exceptions where 

accompanying adults or children may 

be used to interpret or facilitate 

communication. 

Section 84.77(d) proposes 

requirements for recipients that choose 

to provide qualified interpreters via 

Video Remote Interpreting (VRI) 

services. These requirements set certain 

usability standards for the instances 

where VRI services are appropriate 

auxiliary aids and services for 

communication. 

§ 84.78 Telecommunications 

This section contains requirements for 

recipients that communicate by 

telephone with applicants and 

beneficiaries with disabilities. 

Specifically, the section would require 

recipients to use telecommunications 

systems that ensure effective 

communication. When a recipient uses 

an automated-attendant system, that 

system must provide effective real-time 

communication with individuals using 

auxiliary aids and services. In addition, 

a recipient must 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. 

§ 84.79 Telephone Emergency Services 

Proposed § 84.79 states that telephone 

emergency services, including 911 

services, shall provide direct access to 

individuals who use TTY’s and 

computer modems. 

§ 84.80 Information and Signage 

Proposed § 84.80 provides specific 

requirements for information and 

signage to ensure that interested persons 

can obtain information as to the 

existence and location of accessible 

services, activities, and facilities while 

also pointing users to accessible 

entrances. 

§ 84.81 Duties 

Proposed § 84.81 provides that, in 

meeting its communication 

requirements, 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 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 undue financial and 

administrative burdens, it nevertheless 

must take any other steps necessary to 

ensure that individuals with disabilities 

receive the benefits or services provided 

by the recipient. 

It is the Department’s view that 

compliance with the communications 

requirements in subpart H, like 

compliance with the corresponding 

provisions of the ADA title II regulation 

and the section 504 regulations for 

federally conducted programs, would in 

most cases not result in a fundamental 

alteration or undue financial and 

administrative burdens on 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 with any section in this 

subpart 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 that the determination 

must be made by a high level official or 

senior leader who has budgetary 

authority and responsibility for making 

spending decisions. 

Subpart K—Procedures 

Subpart G is redesignated as subpart 

K. Section 84.61, Procedures, is retained 

and redesignated as § 84.98. That 

section states that the procedural 

provisions applicable to Title VI of the 

Civil Rights Act of 1964 apply to this 

part. Those procedures are found at 45 

CFR 80.6 through 80.10 and part 81. 

They include a requirement that 

recipients cooperate with the 


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582 2 U.S.C. 1503(2). 

583For 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. 

584 45 CFR 85. 

Department when it seeks to obtain 

compliance with this part (45 CFR 

80.6(a)); keep records that the 

Department finds necessary to 

determine compliance (45 CFR 80.6(b)); 

permit access by the Department to 

sources of information necessary to 

determine compliance (45 CFR 80.6(c)); 

and provide information about the 

regulations to beneficiaries and 

participants (45 CFR 80.6(d)). The 

regulations also provide that the 

Department shall conduct periodic 

compliance reviews to determine 

compliance (45 CFR 80.7(a)) and will 

accept written complaints filed not 

more than 180 days from the alleged 

discrimination (45 CFR 80.7(b)). In 

addition, the Department will conduct a 

prompt investigation when any 

information indicates a possible failure 

to comply with this part. (45 CFR 

80.7(a)(c)). 

IV. Executive Order 12866 and Related 

Executive Orders on Regulatory Review 

A. Regulatory Impact Analysis 

Summary 

a. Statement of Need 

In this proposed rule, the Department 

proposes to revise its existing section 

504 regulation on nondiscrimination 

obligations for recipients of Federal 

financial assistance. 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. 

Section 504 should be updated and 

interpreted consistently with these 

developments and overlapping laws in 

order to bring the regulations into 

conformity with current law and to 

protect against discrimination on the 

basis of disability. 

b. Overall Impact 

We have examined the impacts of the 

proposed rule under Executive Order 

(E.O.) 12866, as amended by E.O. 14094; 

E.O. 13563; 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 proposed rule 

is a significant regulatory action under 

section 3(f)(1) of E.O. 12866. 

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 proposed 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 propose to 

certify that the proposed rule will not 

have a significant economic impact on 

a substantial number of small entities. 

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.’’ The current threshold 

after adjustment for inflation is $165 

million, using the most current (2021) 

Implicit Price Deflator for the Gross 

Domestic Product. This proposed 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.582

The Background and Reasons for the 

Proposed Rulemaking sections at the 

beginning of this preamble contain a 

summary of this proposed rule and 

describe the reasons it is needed. 

Below is a summary of the results and 

methodology from our Regulatory 

Impact Analysis (RIA). A complete copy 

of this RIA will be available at https:// 

www.hhs.gov/sites/default/files/sec-504- 

rehab-act-npr-ria.pdf as well the Federal 

Government’s online rulemaking portal 

(www.regulations.gov). Interested 

parties are encouraged to review the full 

RIA, and to provide data and other 

information responsive to requests for 

comment posed in the RIA, also 

included in the Request for Comment 

section in this document. 

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 1977.583 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 NPRM applies to this universe of 

recipients, updating the Department’s 

original regulation and adding new 

provisions in several areas. This section 

504 NPRM 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.584

While a majority of the estimated costs 

associated with this proposed rule 

concern health care providers, the 

proposed rule covers all recipients of 

HHS funding. 

The RIA considers the various 

proposed 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 proposed 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 proposed rule 

is expected to accrue. 


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585The 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-sizestandards. 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. 

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 for a 10-year 

time horizon using discount rates of 7 

and 3 percent. 

TABLE 1—ANNUALIZED VALUE OF MONETIZED COSTS AND BENEFITS UNDER THE PROPOSED RULE OVER A FIVE-YEAR

PERIOD

[In 2021 dollars] 

7-Percent 

discount rate 

(in millions) 

3-Percent 

discount rate 

(in millions) 

Monetized Incremental Costs 

Subpart I—Web, Mobile, and Kiosk Accessibility ................................................................................................... 1,478.0 1,422.7 

Subpart J—Accessible Medical Equipment ............................................................................................................. 352.6 347.1 

§ 84.56—Medical Treatment .................................................................................................................................... 12.4 12.1 

§ 84.57—Value Assessment Methods ..................................................................................................................... 0.1 0.1 

§ 84.60—Child Welfare ............................................................................................................................................ 0.1 0.1 

Total Monetized Incremental Costs * ................................................................................................................ 1,843.2 1,782.0 

Monetized Incremental Benefits 

Subpart I—Web, Mobile, and Kiosk Accessibility ................................................................................................... 1,736.3 1,799.6 

Subpart J—Accessible Medical Equipment ............................................................................................................. 128.1 128.1 

Total Monetized Incremental Benefits * ............................................................................................................ 1,864.3 1,927.7 

(* Note: Totals may not sum due to rounding.) 

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. 

Additional costs for provisions under 

§ 84.56—Medical Treatment, § 84.57— 

Value Assessment Methods, and 

§ 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 

requests comment on more extensive 

transition and ongoing costs. 

Concerning the proposed provisions 

to ensure consistency with the ADA, 

statutory amendments to the 

Rehabilitation Act, and Supreme Court 

and other significant court cases, the 

RIA finds that these proposed 

provisions will likely result in no 

additional costs to recipients. 

Regarding costs, the RIA finds that the 

proposed rule would result in 

annualized costs over a 5-year time 

horizon of $1,782.0 million or $1,843.2 

million, corresponding to a 3% or a 7% 

discount rate. The RIA separately 

reports a full range of cost estimates of 

about $1,615.5 million to $2,143.7 

million at a 3% discount rate, and a 

range of cost estimates of about $1,674.5 

million to $2,213.3 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. The RIA concludes that the 

proposed rule would result in total 

annualized benefits of $1,927.7 million 

at a 3% discount rate and $1,864.3 

million at a 7% discount rate. 

In addition to these quantified benefit 

estimates, the RIA includes discussions 

of potential unquantified benefits under 

the rule. Generally, the RIA anticipates 

that the proposed rule will result in a 

myriad of 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 

requests comment that would facilitate 

more thorough estimation. 

The RIA discusses both quantitatively 

and qualitatively the regulatory 

alternatives the Department has 

considered in an attempt to achieve the 

same statutory and regulatory goals 

while imposing lower costs on society. 

B. Regulatory Flexibility Act—Initial 

Small Entity Analysis 

The Department has examined the 

economic implications of this proposed 

rule as required by the Regulatory 

Flexibility Act. This analysis, as well as 

other sections in this Regulatory Impact 

Analysis, serves as the Initial Regulatory 

Flexibility Analysis, as required under 

the Regulatory Flexibility Act. 

The Department deems that a 

proposed rule has a significant 

economic impact on a substantial 

number of small entities whenever the 

rule generates a change in revenues of 

more than 3% for 5% or more of small 

recipients. 

The U.S. Small Business 

Administration (SBA) maintains a Table 

of Small Business Size Standards 

Matched to North American Industry 

Classification System Codes (NAICS).585

We have used SBA yearly revenues 

thresholds for 2019, which for 


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586The $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). 

587The $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. 

recipients ranged between $8 million 586

and $41.5 million.587

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 proposed rule are small 

businesses. 

Moreover, the fraction of total small 

firms in each NAICS that falls under the 

smallest size group (fewer than 5 

employees) is greater than 5% for all 

relevant NAICS. 

As a consequence, it is sufficient to 

investigate the impact of the proposed 

rule on the average recipient in the 

smallest size group to determine 

whether the proposed 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 experience a reduction in revenues 

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 

propose to certify that the proposed 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 revenues (in 2019 dollars) for a 

recipient belonging to the smallest size 

group—for each 6-digit NAICS 

separately—are $160,000 or more. 

Three percent of this sum is about 

$5,000, which we deem is enough to 

finance purchase of the limited set of 

inexpensive MDE the smallest entities 

typically need and training. 

The average yearly revenue for a 

Child Day Care Services firm in the 

smallest size group (fewer than five 

employees) is about $98,000. As we 

expect that recipients in this group will 

incur only Child Welfare training costs 

(less than 1 hour per year, or less than 

$60 in costs), we conclude that the 

impact of the proposed rule is less than 

3% of revenues (about $3,000 for these 

small recipients) for recipients in this 

group. 

Even among the smallest recipient 

groups within the 6-digit NAICS groups 

that private recipients belong to, the 

typical (median) yearly revenue is about 

$300,000 for podiatrists’ offices (the 

maximum is $0.5 million for general 

hospitals, the lowest is $98,000 for 

Child Day Care Services), which signals 

that in many cases the 3% revenue 

threshold is about $10,000. Costs of the 

proposed 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. 

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 these 

recipients will be able to ensure that 

their websites can be made accessible 

and kept accessible each year. The 

Department welcomes comments on the 

cost implications of subpart I for its 

recipients, particularly its small 

recipients. 

As for the second reason, we stress 

that the proposed rule includes 

exemptions meant to ease the burden on 

small firms, including exemption when 

incremental compliance costs are an 

undue financial burden, and the ability 

to meet accessibility requirements via 

alternative, inexpensive methods (like 

reassignment of services to alternate 

accessible locations or home visits for 

MDE requirements). 

C. Executive Order 13132: Federalism 

As required by Executive Order 13132 

on Federalism, the Department has 

examined the effects of provisions in the 

proposed regulation on the relationship 

between the Federal Government and 

the states. The Department has 

concluded that the proposed regulation 

has federalism implications but notes 

that State law will continue to govern 

unless displaced under standard 

principles of preemption. 

The proposed 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 proposed 

rule. The proposed 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 proposed 

Federal regulatory requirements or 

implementation specifications will 

continue to be enforceable. 

Section 3(b) of Executive Order 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 Executive Order 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 

rule making 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. 

Section 6(b) of Executive Order 13132 

includes some qualitative discussion of 

substantial direct compliance costs that 

State and local governments would 


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588 44 U.S.C. 3501 et seq. 589See 28 CFR 35.106. 

590We rely on the hourly estimate for a similar 

notice provision in the NPRM for 45 CFR 92.10. 87 

FR 47824, 47908 (Aug. 4, 2022). 

incur as a result of a proposed 

regulation. We have considered the cost 

burden that this proposed rule would 

impose on State and local government 

recipients and estimate State and local 

government annualized costs will be 

about $576.4 million per year (2021 

dollars) at a 3% discount rate and 

$600.6 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 38% of costs for all recipients, 

i.e., public and private entities 

altogether), subpart J (about 10% of 

costs for all recipients), section 84.56— 

Medical Treatment (about 10% of costs 

for all recipients), 100% of costs for 

section 84.57—Value Assessment 

Methods (only public entities— 

Medicaid agencies—bear these costs), 

and section 84.60—Child Welfare (about 

4% of costs of all recipients). 

In addition, the Department is aware 

that DOJ has issued a Preliminary 

Regulatory Impact Analysis to 

accompany its rule proposing 

requirements for public entities covered 

by title II of the ADA and that its 

requirements are consistent with this 

Department’s subpart I. 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 proposed rule, 

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. 

The Department welcomes comments 

about the potential federalism 

implications of the proposed rule and 

on the proposed rule’s effects on State 

and local governments. 

D. Paperwork Reduction Act 

This proposed 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).588 Under the PRA, agencies are 

required to submit to OMB for review 

and approval any reporting or recordkeeping requirements inherent in a 

proposed or final rule and are required 

to publish such proposed requirements 

for public comment. The PRA requires 

agencies to provide a 60-day notice in 

the Federal Register and solicit public 

comment on a proposed collection of 

information before it is submitted to 

OMB for review and approval. 

Section 3506(c)(2)(A) of the PRA 

requires that the Department solicit 

comment on the following issues: 

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. 

The PRA requires consideration of the 

time, effort, and financial resources 

necessary to meet the information 

collection requirements referenced in 

this section. 

• Paperwork Reduction Act Question 

1: The Department invites public 

comment on its assumptions as they 

relate to the PRA requirements 

summarized in this section and 

explicitly invites comment from 

potential respondents regarding the 

burden estimate we ascribe to these 

requirements, including a discussion of 

respondents’ basis for their 

computation. 

This Notice of Proposed Rulemaking 

does not modify several longstanding 

collections of information that have 

been required since 1977: § 84.5, 

(assurances); § 84.6(c) (self-evaluation); 

§ 84.7(a)(designation of responsible 

employee and adoption of grievance 

procedures; § 84.22 (e) (existing 

facilities: transition plan); and § 84.61, 

redesignated as § 84.98 (Procedures). 

The Notice of Proposed Rulemaking 

slightly modifies one longstanding 

collection of information required since 

1977 to align more closely with the 

requirement under title II of the 

ADA: 589 § 84.8 (notice). With regard to 

assurances, § 84.5, OCR has previously 

obtained PRA approval (OMB control # 

0945–0008) for this reporting 

requirement via an updated HHS Form 

690 (Consolidated Civil Rights 

Assurance Form), separate from this 

rulemaking. The requirement to sign 

and submit an assurance of compliance 

currently exists under section 504 and 

other civil rights regulations (Title VI, 

section 1557, Title IX, and the Age Act). 

Since the Department provides an 

online portal through which covered 

entities submit an attestation of 

Assurance of Compliance, the 

Department has determined that this 

requirement imposes no additional 

reporting or recordkeeping requirements 

under the PRA. 

Like the assurances section, all of the 

other sections listed above are being 

retained from the current section 504 

rule issued in 1977. Section 84.61, 

redesignated as § 84.98, states that the 

procedural provisions applicable to 

Title VI of the Civil Rights Act of 1964 

apply to this part. The provision raising 

potential PRA issues is the requirement 

that recipients maintain records that the 

Department finds necessary to 

determine compliance. However, that 

section, like all of the others listed 

above, has existed since the original 

section 504 regulations were enacted in 

1977. Accordingly, these sections 

impose no additional burden on 

recipients since they have been subject 

to this regulation since that time. 

The notice requirement outlined in 

proposed § 84.8 implicates the thirdparty disclosure provisions of the PRA 

implementing regulations, which 

compels an agency to request comment 

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 proposed § 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.590 The estimated total number 

of hours to respond is 256,763 (0.567 × 

453,084). 


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591Public Law 104–113, section 12(d)(1) (15 

U.S.C. 272 Note). 592 Id. at 12(d)(1). 

Regulation burden Number of 

recipients 

Number of 

responses 

per 

recipient 

Total 

responses 

Burden 

hours per 

response 

Total 

burden 

hours 

§ 84.8 ....................................................................................................... 453,084 1 453,084 .5667 256,763 

• Paperwork Reduction Act Question 

2: The Department invites public 

comment on burdens associated with 

the third-party disclosure requirement 

under proposed § 84.8, including a 

discussion of respondents’ basis for 

their computation. 

E. Unfunded Mandates Reform Act 

Section 4(2) of the Unfunded 

Mandates Reform Act of 1995, 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 Unfunded Mandates 

Reform Act. 

F. 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 welldefined 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.591 In addition, 

the NTTAA directs agencies to consult 

with voluntary, private sector, 

consensus standards bodies and 

requires that agencies participate with 

such bodies in the development of 

technical standards when such 

participation is in the public interest 

and is compatible with agency and 

departmental missions, authorities, 

priorities, and budget resources.592

The Department is proposing to adopt 

the Accessibility Standards for 

Accessible Medical Diagnostic 

Equipment issued by the U.S. Access 

Board to apply to the purchase and lease 

of medical equipment by recipients of 

HHS funds that provide health care 

services and programs. These Standards 

were adopted by the U.S. Access Board 

in 2017 after a five-year review period 

that included an Advisory Committee, 

composed of representatives from the 

health care industry, architects, persons 

with disabilities, and organizations 

representing a variety of interested 

stakeholders. The Standards were 

developed after extensive notice-andcomment. The development of these 

standards was required by Section 510 

of the Rehabilitation Act of 1973, as 

amended, and were developed with the 

participation of the Food and Drug 

Administration. They have gained wide 

recognition in the United States. The 

Department is unaware of any privately 

developed standards created with the 

same wide participation and open 

process. As a result, the Department 

believes that it is appropriate to use 

these Standards for its section 504 rule. 

• NTAA Question 1: The Department 

seeks public comment on these 

standards [Accessibility Standards for 

Accessible Medical Diagnostic 

Equipment] and whether there are any 

other standards for accessible medical 

diagnostic equipment that the 

Department should consider. 

The Department is proposing to adopt 

the Web Content Accessibility 

Guidelines 2.1 Level AA as the 

accessibility standard to apply to web 

content and mobile apps of recipients. 

WCAG 2.1 was developed by the W3C®, 

which has been the principal 

international organization involved in 

developing protocols and guidelines for 

the web. The W3C® develops a variety 

of technical standards and guidelines, 

including ones relating to privacy, 

internationalization of technology, and 

accessibility. Thus, the Department 

believes it is complying with the 

NTTAA in selecting WCAG 2.1 as the 

applicable accessibility standard. 

• NTTAA Question 2: The 

Department seeks public comment on 

the selection of WCAG 2.1 as the 

accessibility standard applicable to web 

content and mobile apps of recipients 

and whether there are other standards 

that the Department should consider. 

Note that this question is similar to 

the questions asked in ‘‘Web 

Accessibility Question 4.’’ 

G. Executive Order 12250 on Leadership 

and Coordination of Nondiscrimination 

Laws 

Pursuant to E.O. 12250, the Attorney 

General has the responsibility to 

‘‘review . . . proposed rules . . . of the 

Executive agencies’’ implementing 

nondiscrimination statutes such as 

section 504 ‘‘in order to identify those 

which are inadequate, unclear or 

unnecessarily inconsistent.’’ 161 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. See E.O. 

12250 (DOJ Coordination authority) at 

1–503 and E.O. 12067 (EEOC 

Coordination authority). 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 rules. 28 CFR 0.51. The 

Department will coordinate with DOJ to 

review and approve this proposed rule 

prior to publication in the Federal 

Register. 

V. Effective Date 

The Department proposes that the 

effective date be 60 days after 

publication of the Final Rule. 

VI. Request for Comment 

The Department seeks comment on all 

issues raised by the proposed 

regulation. 

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, 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 proposes to amend 45 

CFR part 84 as follows: 


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Title 45—Public Welfare 

PART 84—NONDISCRIMINATION ON 

THE BASIS OF DISABILITY IN 

PROGRAMS OR ACTIVITIES 

RECEIVING FEDERAL FINANCIAL 

ASSISTANCE 

■ 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. 

■ 2. Revise the heading for part 84 to 

read as set forth above. 

Subpart A—General Provisions 

■ 3. Revise § 84.1 to read as follows: 

§ 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 

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. 

■ 4. Revise § 84.2 to read as follows: 

§ 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. 

§ 84.10 [ Removed] 

■ 5. Remove § 84.10. 

§ 84.3 [Redesignated as § 84.10] 

■ 6. Redesignate § 84.3 as § 84.10. 

■ 7. Add new § 84.3 to read as follows: 

§ 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. 

■ 8. Revise § 84.4 to read as follows: 

§ 84.4 Disability. 

(a) Definition—(1) 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’’ or ‘‘record of’’ 

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’’ 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) Definition. (i) 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, emotional or 

mental illness, 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, emotional illness, 

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. 


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(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 

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 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’’ or 

‘‘record of’’ 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 these principles, 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 these 

principles 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 

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 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 nonameliorative 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’’ or ‘‘record of’’ 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 


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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 

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 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 this prong 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— 

(1) Transvestism, transsexualism, 

pedophilia, exhibitionism, voyeurism, 

gender identity disorders not resulting 

from physical impairments, or other 

sexual behavior disorders; 

(2) Compulsive gambling, 

kleptomania, or pyromania; or 

(3) Psychoactive substance use 

disorders resulting from current illegal 

use of drugs. 

§ 84.6 [Amended] 

■ 9. In § 84.6 remove the word(s) in the 

left column in the following table and 

add in its place the word(s) in the right 

column wherever it occurs: 

Handicap Disability 

handicapped persons ..... persons with disabilities 

■ 10. Revise § 84.8 to read as follows: 

§ 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 his or her designee finds necessary to 

apprise such persons of the protections 

against discrimination assured them by 

section 504 and this part. 

■ 11. Amend newly redesignated 

§ 84.10 as follows: 

■ a. Remove the alphabetical paragraph 

designations and arrange the definitions 

in alphabetical order; 

■ b. Add definitions in alphanumerical 

order for ‘‘2004 ADA Accessibility 

Guidelines (ADAAG)’’, ‘‘2010 

Standards’’, and ‘‘ADA’’; 

■ c. Remove the definition for 

‘‘Applicant for assistance’’ and add in 

its place a definition for ‘‘Applicant’’; 

■ d. Add definitions in alphabetical 

order for ‘‘Architectural Barriers Act’’, 

‘‘archived web content’’, and ‘‘auxiliary 

aids and services’’; 

■ e. Add definitions in alphabetical 

order for ‘‘companion’’, ‘‘conventional 

electronic devices’’, ‘‘current illegal use 

of drugs’’, ‘‘direct threat’’, ‘‘disability’’, 

and ‘‘drug’’; 

■ f. Remove the definition of 

‘‘Education of the Handicapped Act’’; 

■ g. Add a definition in alphabetical 

order for ‘‘Existing facility’’; 

■ h. Revise the definitions of ‘‘facility’’ 

and ‘‘Federal financial assistance’’; 

■ i. Add a definition in alphabetical 

order for ‘‘foster care’’; 

■ j. Remove the definitions of 

‘‘handicap’’, ‘‘handicapped person’’; 

■ k. Add definitions in alphabetical 

order for ‘‘illegal use of drugs’’ and 

‘‘individual with a disability’’, ‘‘kiosks’’, 

‘‘medical diagnostic equipment MDE’’, 

‘‘mobile applications (apps)’’, ‘‘most 

integrated setting’’, ‘‘other power-driven 

mobility device,’’ and ‘‘parents’’; 

■ l. Revise the definition of ‘‘program or 

activity’’; 

■ m. Add definitions in alphabetical 

order for ‘‘prospective parents’’, 

‘‘qualified individual with a disability’’, 

‘‘qualified interpreter’’, and ‘‘qualified 

reader’’; 


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■ n. Remove the definition of ‘‘qualified 

handicapped person’’; 

■ o. Revise the definition of ‘‘section 

504’’; 

■ p. Add definitions in alphabetical 

order for ‘‘service animal’’, ‘‘Standards 

for Accessible Medical Diagnostic 

Equipment (‘‘Standards for Accessible 

MDE’’)’’, and ‘‘State’’; 

■ q. Remove the definition of ‘‘the Act’’; 

and 

■ r. Add definitions in alphabetical 

order for ‘‘ultimate beneficiary’’, ‘‘video 

remote interpreting (VRI)’’, ‘‘WCAG 

2.1’’, ‘‘web content’’, and ‘‘wheelchair’’. 

The additions and revisions read as 

follows: 

§ 84.10 Definitions. 

2004 ADA Accessibility Guidelines 

(ADAAG) means the requirements set 

forth in appendices B and D to 36 CFR 

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 et seq. 

Archived web content means web 

content that— 

(1) Is maintained 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. 

Auxiliary aids and services include: 

(1) Qualified interpreters on-site or 

through video remote interpreting (VRI) 

services; notetakers; real-time computeraided 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; 

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, spreadsheet 

file formats, and database 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. 

* * * * * 

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 § 84.75. 

(2) With respect to employment as 

provided in § 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). 

* * * * * 

Disability means: 

(1) Except as provided in paragraph 

(2) of this definition, the definition of 

disability found at § 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; 

(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. 


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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 the 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 non-disabled persons to the fullest 

extent possible; is located in 

mainstream society; offers access to 

community activities and opportunities 

at times, frequencies and with persons 

of an individual’s choosing; and affords 

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® PT, or any mobility device 

designed to operate in areas without 

defined pedestrian routes, but that is not 

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), (3), and (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, 

a person with a disability who with or 

without reasonable modifications to 

policies, practices, or procedures, or the 

provision of auxiliary aids and services, 

meets the academic and technical 

requirements for 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. 

* * * * * 

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. 

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 


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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, wellbeing, 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 

at 36 CFR part 1195, promulgated by the 

Architectural and Transportation 

Barriers Compliance Board (Access 

Board) under section 510 of the 

Rehabilitation Act of 1973, as amended, 

in effect as of the date of promulgation 

of the final version of this rule, found 

in the appendix to 36 CFR part 1195. 

State means each of the several States, 

the District of Columbia, the 

Commonwealth of Puerto Rico, Guam, 

American Samoa, the Virgin Islands, the 

Trust Territory of the Pacific Islands, 

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 

extend. The ultimate beneficiary class 

may be the general public or some 

narrower group of persons. 

Video remote interpreting (VRI) 

service means an interpreting service 

that uses video conference technology 

over dedicated lines or wireless 

technology offering high-speed, widebandwidth video connection that 

delivers high-quality video images as 

provided in § 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/RECWCAG21-20180605/ [https://perma.cc/ 

UB8A-GG2F]. WCAG 2.1 is incorporated 

by reference elsewhere in this part (see 

§§ 84.84 and 84.86). 

Web content means information or 

sensory experience—including the 

encoding that defines the content’s 

structure, presentation, and 

interactions—that is communicated to 

the user by a web browser or other 

software. Examples of web content 

include text, images, sounds, videos, 

controls, animations, and conventional 

electronic documents. 

Wheelchair means a manuallyoperated 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). 

■ 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 

§ 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. 

§§ 84.17–84.20 [Reserved] 

Subpart C—Program Accessibility 

■ 13. Revise § 84.21 to read as follows: 

§ 84.21 Discrimination prohibited. 

Except as otherwise provided in 

§ 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. 

■ 14. Amend § 84.22 by: 

■ a. Revising paragraphs (a) and (b); 

■ b. Removing the words ‘‘handicapped 

person’’ and adding in its place the 

words ‘‘person with a disability’’ 

wherever they occur in paragraph (c); 

■ 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 

■ d. Adding paragraph (g). 

The revisions and addition read as 

follows: 

§ 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 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 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 


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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 shall, in making 

alterations to existing buildings, meet 

the accessibility requirements of § 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 [EFFECTIVE DATE OF FINAL 

RULE], and that comply with the 

corresponding technical and scoping 

specifications for those elements in the 

American National Standard 

Specification (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 101–19.6 (July 1, 2002 ed.), 49 FR 

31528, app. A (Aug. 7, 1984), for those 

facilities constructed between January 

18, 1991, and [EFFECTIVE DATE OF 

FINAL RULE] are not required to be 

modified to comply with the 

requirements set forth in the 2010 

Standards. 

■ 15. Revise § 84.23 to read as follows: 

§ 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 

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 

subsection 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 

[EFFECTIVE DATE OF FINAL RULE], 

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). 

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 

[EFFECTIVE DATE OF FINAL RULE] 

but before [DATE ONE YEAR FROM 

PUBLICATION DATE OF FINAL RULE 

IN THE FEDERAL REGISTER], 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 [DATE 

ONE YEAR FROM PUBLICATION 

DATE OF FINAL RULE IN THE 

FEDERAL REGISTER], 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 

subsection 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 shall comply with 

ANSI 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 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. 

(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 [EFFECTIVE DATE OF 

FINAL RULE], or if no permit is 

required, if the start of physical 

construction or alterations occurs on or 

after January 18, 1991, and before 

[EFFECTIVE DATE OF FINAL RULE]. 

(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 [EFFECTIVE DATE OF FINAL 

RULE], and before [DATE ONE YEAR 

FROM PUBLICATION DATE OF FINAL 

RULE IN THE FEDERAL REGISTER], or 

if no permit is required, if the start of 

physical construction or alterations 

occurs on or after [EFFECTIVE DATE 

OF FINAL RULE], and before [DATE 

ONE YEAR FROM PUBLICATION 

DATE OF FINAL RULE IN THE 

FEDERAL REGISTER]. 

(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 


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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 [DATE ONE 

YEAR FROM PUBLICATION DATE OF 

FINAL RULE IN THE FEDERAL 

REGISTER], or if no permit is required, 

if the start of physical construction or 

alterations occurs on or after [DATE 

ONE YEAR FROM PUBLICATION 

DATE OF FINAL RULE IN THE 

FEDERAL REGISTER]. 

(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 [DATE ONE 

YEAR FROM PUBLICATION DATE OF 

FINAL RULE IN THE FEDERAL 

REGISTER], and that do not comply 

with UFAS shall before [DATE ONE 

YEAR FROM PUBLICATION DATE OF 

FINAL RULE IN THE FEDERAL 

REGISTER], 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 

[DATE ONE YEAR FROM 

PUBLICATION DATE OF FINAL RULE 

IN THE FEDERAL REGISTER] and that 

do not comply with ANSI (for facilities 

constructed or altered between June 3, 

1977, and January 18, 1991) or UFAS 

(for facilities constructed or altered on 

or after January 18, 1991) shall, on or 

after [DATE ONE YEAR FROM 

PUBLICATION DATE OF FINAL RULE 

IN THE FEDERAL REGISTER], 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 that Act and any 

implementing regulations. 

(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. 

■ 16. Revise the heading of subpart D to 

read as follows: 

Subpart D—Childcare, Preschool, 

Elementary and Secondary, and Adult 

Education 

■ 17. Revise § 84.31 to read as follows: 

§ 84.31 Application of this subpart. 

Subpart D 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. 

§§ 84.32 through 84.37 [Removed and 

Reserved] 

■ 18. Remove and reserve §§ 84.32 

through 84.37. 

■ 19. Revise § 84.38 to read as follows: 

§ 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. 

§ 84.39 [Removed and Reserved] 

■ 20. Remove and reserve § 84.39. 

Subpart E—Postsecondary Education 

§ 84.42 [Amended] 

■ 21. Amend § 84.42 by: 

■ a. Removing the word ‘‘handicap’’ and 

adding in its place the word ‘‘disability’ 

in paragraphs (a) and (b)(3)(i); 

■ b. Removing the words ‘‘handicapped 

persons’’ and adding in their place the 

words ‘‘individuals with disabilities’’ in 

paragraphs (a), (b)(1), and (b)(2) 

introductory text (two times); 

■ c. Removing the words ‘‘handicapped 

person’’ and adding in their place the 

words ‘‘individual with a disability’’ in 

paragraph (b)(4); and 

■ d. Removing the word ‘‘handicapped’’ 

and adding in its place the word 

‘‘disabled’’ in paragraph (c) introductory 

text. 

§ 84.43 [Amended] 

■ 22. Amend § 84.43 by: 

■ a. Removing the words ‘‘handicapped 

student’’ and adding in its place the 

words ‘‘student with disabilities’’ in 

paragraphs (a) and (c); 

■ b. Removing the word ‘‘handicap’’ 

and adding in its place the word 

‘‘disability’’ in paragraphs (a) and (c); 

and 

■ c. Removing the words ‘‘handicapped 

persons’’ and adding in their place the 

words ‘‘individuals with disabilities’’ in 

paragraph (b). 

§ 84.44 [Amended] 

■ 23. Amend § 84.44 by: 

■ a. Removing the word ‘‘handicap’’ and 

adding in its place the word ‘‘disability’’ 

in paragraphs (a) and (c); 

■ b. Removing the word ‘‘handicapped’’ 

and adding in its place the word 

‘‘disabled’’ in its place in paragraph (a); 

■ c. Removing the words ‘‘handicapped 

students’’ and adding in their place the 

words ‘‘students with disabilities’’ in 

two places in paragraph (b); and 

■ d. Removing the words ‘‘handicapped 

student’’ and adding in its place the 

words ‘‘student with disabilities’’ in 

paragraph (d)(1). 

§ 84.45 [Amended] 

■ 24. Amend § 84.45 by: 

■ a. Removing the words 

‘‘nonhandicapped students’’ and adding 

in their place two times the words 

‘‘students without disabilities’’ in 

paragraph (a); 

■ b. Removing the words ‘‘handicapped 

students’’ and adding in their place the 

words ‘‘students with disabilities’’ in 

paragraph (a); 

■ c. Removing the words ‘‘handicapped 

students’ ’’ and adding in their place the 

words ‘‘students with disabilities’ ’’ in 

paragraph (a); and 

■ d. Removing the word ‘‘handicap’’ 

and adding in its place the word 

‘‘disability’’ in paragraph (b). 

§ 84.46 [Amended] 

■ 25. Amend § 84.46 by: 

■ a. Removing the word ‘‘handicap’’ and 

adding in its place the word ‘‘disability’’ 

wherever it occurs in paragraph (a); 

■ b. Removing the words ‘‘handicapped 

persons’’ and adding in its place the 


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words ‘‘individuals with disabilities’’ in 

two places in paragraph (a)(1); 

■ c. Removing the words 

‘‘nonhandicapped persons’’ and adding 

in their place the words ‘‘individuals 

without disabilities’’ in paragraph (a)(1). 

§ 84.47 [Amended] 

■ 26. Amend § 84.47 by: 

■ a. Removing the word ‘‘handicap’’ and 

adding in its place the word ‘‘disability’’ 

in paragraphs (a)(1) and (b); 

■ b. Removing the words ‘‘handicapped 

students’’ and adding in their place the 

words ‘‘students with disabilities’’ in 

paragraphs (a)(1) and (2) and paragraph 

(b); 

■ c. Removing the words ‘‘handicapped 

student’’ and adding in their place the 

words ‘‘student with disabilities’’ in 

paragraph (a)(2); 

■ d. Removing the words ‘‘handicapped 

persons’’ and adding in its place the 

words ‘‘individuals with disabilities’’ in 

paragraph (b); and 

■ e. Removing the words 

‘‘nonhandicapped students’’ and adding 

in their place the words ‘‘students 

without disabilities’’ in paragraph (b). 

Subpart F—Health, Welfare, and Social 

Services 

§ 84.52 [Amended] 

■ 27. Amend § 84.52 by: 

■ a. Removing the words ‘‘handicapped 

person’’ and adding in its place the 

words ‘‘individual with a disability’’ in 

paragraphs (a)(1) through (3); 

■ b. Removing the words ‘‘handicapped 

persons’’ and adding in its place the 

words ‘‘individuals with disabilities’’ in 

paragraphs (a)(2) and (4), in two places 

in paragraph (a)(5), and in paragraph (b); 

and 

■ c. Removing paragraphs (c) and (d). 

■ 28. Revise § 84.53 to read as follows: 

§ 84.53 Individuals with substance and 

alcohol use disorders. 

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. 

■ 29. Revise § 84.54 to read as follows: 

§ 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 § 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. 

§ 84.55 [Amended] 

■ 30. Amend § 84.55 by: 

■ a. Removing the words ‘‘handicapped 

infants’’ and adding in their place the 

words ‘‘infants with disabilities’’ in 

paragraph (a); and 

■ b. Removing and reserving paragraphs 

(b) through (e). 

■ 31. Add §§ 84.56 and 84.57 to read as 

follows: 

§ 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, 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) These circumstances include those 

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. 

§ 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. 


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■ 32. Add § 84.60 to read as follows: 

§ 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. 

(2) Under the prohibition set forth in 

the previous subsection, 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 reunification services 

is equal to that afforded to persons 

without disabilities; 

(3) Terminate the parental rights or 

legal guardianship of a qualified 

individual with a disability; or 

(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. 

(c) Parenting evaluation procedures. 

A recipient to which this subpart 

applies shall establish procedures for 

referring individuals who, because of 

disability, need or are believed to need 

adapted services or reasonable 

modifications, and shall ensure that 

tests, assessments, and other evaluation 

materials, are tailored to assess specific 

areas of disability-related needs, and not 

merely those which are designed to 

provide a single general intelligence 

quotient. 

§ 84.61 [Removed] 

■ 33. Remove § 84.61. 

■ 34. 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 

§ 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 

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 


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‘‘disability’’ solely under the ‘‘regarded 

as’’ prong of the definition of disability 

in this part. 

(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 service, 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. 

§ 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 paragraph (c) of this 

section shall be construed to encourage, 

prohibit, restrict, or authorize the 

conduct of testing for the illegal use of 

drugs. 

§ 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. 

§ 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. 

§ 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. 

§ 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 

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 


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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. 

§ 84.74 Mobility devices. 

(a) Use of wheelchairs and manuallypowered 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 

§ 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; 

(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; and 

(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 powerdriven mobility device. A recipient may 

ask a person using an other powerdriven 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 powerdriven 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 powerdriven 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. 

§ 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). 

§ 84.76 Integration. 

(a) Application. This provision 

applies to programs or activities that 

receive Federal financial assistance from 


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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. Administering 

a program or activity in a manner that 

results in unnecessary segregation of 

persons with disabilities constitutes 

discrimination under this section. 

(c) Segregated setting. A segregated 

setting is one in which people with 

disabilities are unnecessarily separated 

from people without disabilities. 

Segregated settings are populated 

exclusively or primarily with 

individuals with disabilities, and may 

be characterized by regimentation in 

daily activities; lack of privacy or 

autonomy; and policies 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 

individuals with disabilities in 

integrated settings than for individuals 

with disabilities in segregated settings; 

or 

(4) Failure to provide communitybased services that results in 

institutionalization or serious risk of 

institutionalization. This category 

includes, but is not limited to planning, 

service system design, funding, or 

service implementation practices that 

result in institutionalization or serious 

risk of institutionalization. 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. 

■ 35. Add subpart H 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 

§ 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 highquality 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. 

§ 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 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. 

§ 84.79 Telephone emergency services. 

Telephone emergency services, 

including 911 services, shall provide 


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direct access to individuals who use 

TTY’s and computer modems. 

§ 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. 

§ 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. 

■ 36. Add subpart I to read as follows: 

Subpart I—Web, Mobile, and Kiosk 

Accessibility 

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 [Reserved] 

Subpart I—Web, Mobile, and Kiosk 

Accessibility 

§ 84.82 Application. 

This subpart applies to all programs 

or activities that receive Federal 

financial assistance from the 

Department. 

§ 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. 

§ 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 makes 

available to members of the public or 

uses to offer programs or activities to 

members of the public; and 

(2) Mobile apps that a recipient makes 

available to members of the public or 

uses to offer programs or activities to 

members of the public. 

(b) Requirements. (1) Effective [DATE 

TWO YEARS AFTER PUBLICATION OF 

FINAL RULE IN THE FEDERAL 

REGISTER], a recipient with fifteen or 

more employees shall ensure that the 

web content and mobile apps it makes 

available to members of the public or 

uses to offer programs or activities to 

members of the public 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 undue 

financial and administrative burdens. 

(2) Effective [DATE THREE YEARS 

AFTER PUBLICATION OF FINAL RULE 

IN THE FEDERAL REGISTER], a 

recipient with fewer than fifteen 

employees shall ensure that the web 

content and mobile apps it makes 

available to members of the public or 

uses to offer programs or activities to 

members of the public 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 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 approved incorporation 

by reference (IBR) material is available 

for inspection at HHS and at the 

National Archives and Records 

Administration (NARA). Contact HHS, 

OCR at: Phone line: (202) 545–4884; 

Email: 504@hhs.gov; Mail: Office for 

Civil Rights, U.S. Department of Health 

and Human Services, 200 Independence 

Ave. SW, Room 509F, HHH Building, 

Washington, DC 20201. For information 

on the availability of this material at 

NARA, visit www.archives.gov/federalregister/cfr/ibr-locations.html or email 

fr.inspection@nara.gov. 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: contact@w3.org; website: 

www.w3.org/TR/2018/REC-WCAG21- 

20180605/ [https://perma.cc/UB8AGG2F]. 

§ 84.85 Exceptions. 

The requirements of § 84.84 do not 

apply to the following: 

(a) Archived web content. Archived 

web content as defined in § 84.10. 

(b) Preexisting conventional electronic 

documents. Conventional electronic 

documents created by or for a recipient 

that are available on a recipient’s 

website or mobile app before the date 

the recipient is required to comply with 

this rule, unless such documents are 

currently used by members of the public 

to apply for, gain access to, or 

participate in a recipient’s programs or 

activities. 

(c) Web content posted by a third 

party. Web content posted by a third 

party that is available on a recipient’s 

website. 

(d) Linked third-party web content. 

Third-party web content linked from the 

recipient’s website, unless the recipient 

uses the third-party web content to 

allow members of the public to 

participate in or benefit from the 

recipient’s programs or activities. 

(e) Postsecondary institutions: 

password-protected class or course 

content. Except as provided in 

paragraphs (e)(1) and (2) of this section, 

course content available on a recipient’s 

password-protected or otherwise 

secured website for admitted students 

enrolled in a specific course offered by 

a postsecondary institution. 

(1) This exception does not apply if a 

recipient is on notice that an admitted 

student with a disability is preregistered in a specific course offered by 

a postsecondary institution and that the 

student, because of a disability, would 


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be unable to access the content available 

on the recipient’s password-protected or 

otherwise secured website for the 

specific course. In such circumstances, 

all content available on the recipient’s 

password-protected or otherwise 

secured website for the specific course 

must comply with the requirements of 

§ 84.84 by the date the academic term 

begins for that course offering. New 

content added throughout the term for 

the course must also comply with the 

requirements of § 84.84 at the time it is 

added to the website. 

(2) This exception does not apply 

once a recipient is on notice that an 

admitted student with a disability is 

enrolled in a specific course offered by 

a postsecondary institution after the 

start of the academic term and that the 

student, because of a disability, would 

be unable to access the content available 

on the recipient’s password-protected or 

otherwise secured website for the 

specific course. In such circumstances, 

all content available on the recipient’s 

password-protected or otherwise 

secured website for the specific course 

must comply with the requirements of 

§ 84.84 within five business days of 

such notice. New content added 

throughout the term for the course must 

also comply with the requirements of 

§ 84.84 at the time it is added to the 

website. 

(f) Elementary and secondary schools: 

password-protected class or course 

content. Except as provided in 

paragraphs (f)(1) through (4) of this 

section, class or course content available 

on a recipient’s password-protected or 

otherwise secured website for students 

enrolled, or parents of students 

enrolled, in a specific class or course at 

an elementary or secondary school. 

(1) This exception does not apply if 

the recipient is on notice of the 

following: a student with a disability is 

pre-registered in a specific class or 

course offered by an elementary or 

secondary school and that the student, 

because of a disability, would be unable 

to access the content available on the 

recipient’s password-protected or 

otherwise secured website for the 

specific class or course. In such 

circumstances, all content available on 

the recipient’s password-protected or 

otherwise secured website for the 

specific class or course must comply 

with the requirements of § 84.84 by the 

date the term begins for that class or 

course. New content added throughout 

the term for the class or course must 

also comply with the requirements of 

§ 84.84 at the time it is added to the 

website. 

(2) This exception does not apply if 

the recipient is on notice of the 

following: a student is pre-registered in 

an elementary or secondary school’s 

class or course, the student’s parent has 

a disability, and the parent, because of 

a disability, would be unable to access 

the content available on the passwordprotected or otherwise secured website 

for the specific class or course. In such 

circumstances, all content available on 

the recipient’s password-protected or 

otherwise secured website for the 

specific class or course must comply 

with the requirements of § 84.84 by the 

date the term begins for that class or 

course. New content added throughout 

the term for the class or course must 

also comply with the requirements of 

§ 84.84 at the time it is added to the 

website. 

(3) This exception does not apply 

once a recipient is on notice of the 

following: a student with a disability is 

enrolled in an elementary or secondary 

school’s class or course after the term 

begins and that the student, because of 

a disability, would be unable to access 

the content available on the recipient’s 

password-protected or otherwise 

secured website for the specific class or 

course. In such circumstances, all 

content available on the recipient’s 

password-protected or otherwise 

secured website for the specific class or 

course must comply with the 

requirements of § 84.84 within five 

business days of such notice. New 

content added throughout the term for 

the class or course must also comply 

with the requirements of § 84.84 at the 

time it is added to the website. 

(4) This exception also does not apply 

once a recipient is on notice of the 

following: a student is enrolled in an 

elementary or secondary school’s class 

or course after the term begins, and the 

student’s parent has a disability, and the 

parent, because of a disability, would be 

unable to access the content available 

on the recipient’s password-protected or 

otherwise secured website for the 

specific class or course. In such 

circumstances, all content available on 

the recipient’s password-protected or 

otherwise secured website for the 

specific class or course must comply 

with the requirements of § 84.84 within 

five business days of such notice. New 

content added throughout the term for 

the class or course must also comply 

with the requirements of § 84.84 at the 

time it is added to the website. 

(g) Individualized, passwordprotected documents. Conventional 

electronic documents that are: 

(1) About a specific individual, their 

property, or their account; and 

(2) Password-protected or otherwise 

secured. 

§ 84.86 Conforming alternate versions. 

(a) A recipient may use conforming 

alternate versions of websites and web 

content, as defined by WCAG 2.1, to 

comply with § 84.84 only where it is not 

possible to make websites and 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 approved incorporation 

by reference (IBR) material is available 

for inspection at HHS and at the 

National Archives and Records 

Administration (NARA). Contact HHS, 

OCR at: Phone line: (202) 545–4884; 

Email: 504@hhs.gov; Mail: Office for 

Civil Rights, U.S. Department of Health 

and Human Services, 200 Independence 

Ave. SW, Room 509F, HHH Building, 

Washington, DC 20201. For information 

on the availability of this material at 

NARA, visit www.archives.gov/federalregister/cfr/ibr-locations.html or email 

fr.inspection@nara.gov. 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: contact@w3.org; website: 

www.w3.org/WAI/; www.w3.org/TR/ 

2018/REC–WCAG21–20180605/ [https:// 

perma.cc/UB8A-GG2F]. 

§ 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. 

§ 84.88 Duties. 

Where a recipient can demonstrate 

that full compliance with the 

requirements of § 84.84 would result in 

a fundamental alteration in the nature of 

a program or activity or undue financial 

and administrative burdens, compliance 

with § 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 § 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 


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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. 

§ 84.89 [Reserved] 

■ 37. Add subpart J 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 

§ 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. 

§ 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. 

§ 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, 

or otherwise acquire more than 60 days 

after the publication of this part in final 

form shall, 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 [EFFECTIVE DATE OF FINAL 

RULE, 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. 

(d) Equivalent facilitation. Nothing in 

these requirements 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 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. 

§ 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 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 


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63512 Federal Register / Vol. 88, No. 177 / Thursday, September 14, 2023 / Proposed Rules 

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 § 84.92(a) 

or (c) would result in a fundamental 

alteration under paragraph (a)(2) of this 

section if it demonstrates that 

compliance with § 84.92(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. 

(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. 

§ 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. 

§§ 84.95–84.97 [Reserved] 

■ 38. Add subpart K, consisting of 

§ 84.98, to read as follows: 

Subpart K—Procedures 

§ 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 §§ 80.6 through 80.10 and 45 

CFR part 81. 

Dated: August 31, 2023. 

Xavier Becerra, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2023–19149 Filed 9–7–23; 8:45 am] 

BILLING CODE P 


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