Health and Human Services Issues Rule to Prevent Disability Discrimination

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The U.S. Department of Health and Human Services (HHS) is issuing a new update to Section 504 regulation to require that web content and mobile applications adhere to Web Content Accessibility Guidelines (WCAG) 2.1. To do that, its Civil Rights (OCR), finalized a rule that prohibits discrimination based on disability. A final rule is the formal publication of a new regulation, amendment, or removing a regulation.

This rule — titled Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance — advances equity and bolsters protections for people with disabilities under Section 504. This important Final Rule is HHS’s latest move to advance equity and support for underserved communities through the federal government.

There’s more information in Ken Nakata’s post on HHS Requires WCAG 2.1 Compliance.

Hello, everyone. This is Thomas Logan from Equal Entry, here with Ken Nakata of Converge Accessibility. In this episode of A11yInsights, we’re talking about the U. S. Department of Health and Human Services. And its updates to its Section 504 regulation. Ken, kick us off. What’s this all about?

Health and Human Services (HHS) Section 504 Update

Ken Nakata: Well, Thomas, the regulation is an update, as you said under Section 504 regulations. So the way it works is the Section 504 is a law that was passed in 1973, and it affects federally funded programs, as well as the activities of federal agencies. And it prohibits organizations that are either federally funded or that are federal agencies from discriminating against people with disabilities.

And over the years, the decades since 1973, agencies have continually updated their regulations to keep with the times and to broaden the rights for people with disabilities. And HHS has always had it 504 regulations, but they’d gotten pretty old and substantial changes had been made under the ADA as well as other Section 504 regulations.

And then there’s the Title II regulations that just came out. So there’s a lot has changed. And so HHS just updated it all at once and made a big sweeping change to their regulation.

Thomas Logan: I understand that HHS is a federal agency, but who’s affected under this law?

Ken Nakata: It is so much more broad than most people think.

It’s not like the People are getting checks from the Department of Health and Human Services directly, but the way in which federal funding works is that it does affect things in a much broader way. So, it basically covers every healthcare provider in the United States. It also pretty much affects every prescription drug plan, every health insurance plan, every social service entity.

The reason why it affects hospitals and health doctors and healthcare providers is because if you have patients who are paying with Medicare or Medicaid, which is basically a federal government insurance plan. Then, that’s considered federal funding because those are federal dollars.

So, all of a sudden that everybody who sees patients that are over 65 that are Medicare patients are suddenly covered by this rule and similarly healthcare insurance companies and drug plans, and HMOs and other organizations that I mentioned, they also receive funding in that indirect way.

But that indirect way just has such far-reaching effects and can cover so many different types of entities.

What Healthcare Will Need to Do

Thomas Logan: What are they going to have to do? under this law once it takes effect?

Ken Nakata: They’re going to have to do a lot of things.

They’re going to have to do basically everything that’s in the Title II regulation, even though they’re not government entities and the Title II regulations, were updated in 2010 to include a lot of other things. Like for instance, there were changes to the regulation to expand what’s meant by a service animal.

So before 2010, there was a lot of uncertainty about what was a service animal. Then in 2010, the Title II regulation said that it was limited to dogs but they also expanded it to miniature horses. And so the reason why is because horses live a lot longer than dogs do.

And so they pulled that requirement into the HHS regulation. They also included what’s called other power-driven mobility devices. And they clarified a lot of different things that were lingering in the Title II regulation, brought it into 504. But the biggest one for us is that they just pulled in the new web and mobile portion of the Title II regulation.

And so now that all applies to healthcare providers and hospitals and all those other entities that I mentioned before.

Thomas Logan: That will be the Web Content Accessibility Guidelines 2.1 AA?

Ken Nakata: Yes. A and AA. Yep!

Thomas Logan: Yes, that’s going to be a big new requirement for them to get started on implementing because I’m sure many of those systems far from WCAG 2.1 AA.

Ken Nakata: Exactly. I think that’s right. So every patient portal that patients use with their doctors or hospitals, all that stuff has to be accessible. All of the patient portals for insurance plans or if you’re going into express scripts, for instance, to get your prescriptions refilled. All that stuff suddenly has to be accessible.

What’s Not Affected by the HHS Update?

Thomas Logan: And how about what’s not affected? So I know you’ve been researching this rule for quite a while and you have some opinions of some of the things that aren’t effective. So what isn’t going to be captured by this law?

Ken Nakata: Unfortunately, they also pulled in all of the exceptions that were in the Title II web rule, and that includes things like content posted by third parties, or archived web content, or pre-existing stuff.

But the big one and the one that bugs me is what’s called, “Individualized password-protected documents.” Because this means that anything that’s password protected or behind something that’s password protected, and it’s an electronic document, it doesn’t have to be made accessible.

And so that includes, for instance, if you go into your patient portal and you put in your username and password, and there is a PDF that is your blood value tests or a lab result test. That PDF doesn’t have to be made accessible.

Thomas Logan: That seems like a huge oversight given healthcare, all of those documents are going to be password protected because it’s sensitive health information.

Ken Nakata: Exactly. All of that stuff has to be password-protected because of HIPAA.

Customers Need to Demand Accessible Systems

Thomas Logan: Let’s see how that plays out. We actually talked about a big healthcare company on this podcast earlier. Epic Systems is one of the two largest healthcare technology providers for the software that’s run in hospitals.

And we noted in that review that there’s still quite a lot of accessibility issues with that software, even though it has so many huge contracts around the United States. But I guess this is going to change all of that. They’re going to have to be accessible now.

Ken Nakata: Exactly. Well, they’re not going to be directly liable, but every one of their customers are.

And so it’s absolutely essential that they make it accessible. Their clients are absolutely going to demand it.

Thomas Logan: And there are other healthcare systems, right? So the same way that this should work in all industries. If one of the healthcare technologies makes a really accessible system, they should win the contracts and the systems that aren’t accessible shouldn’t be purchased because they’re not accessible.

Ken Nakata: Right, because if you are a buyer, because you’re, say, a hospital that’s buying one of these things, you’re naturally going to be concerned that you’re going to get sued unless that thing is WCAG compliant or WCAG 2.1 A and AA conformant. And so that’s suddenly become, a business need of yours when you’re buying a system.

Thomas Logan: Yeah, but hopefully these organizations can pull the information together and probably a lot of the software is purchased in many different local areas and states. So hopefully they can share some of the information about the accessibility and that should influence those companies to fix the accessibility issues more quickly as well.

But what do you all think? We’d love to hear from you. Let’s continue the conversation. Do you think this is going to make a big change in the industry, having this new law in the books from HHS and seeing this go into healthcare? Please add comments and we’ll be happy to respond. Thank you so much for your time and we will see you in our next episode.

Thomas Logan
Owner | NYC, USA
Founder | Accessibility Consultant | Global Speaker | ADA WCAG Section 508 | A11y | Accessibility VR & A11yNYC Organizer

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