The Biden administration issued a new proposed rule targeting the discrimination patients with disabilities may face when seeking care from a government-funded healthcare program or activity. Unveiled by the Department of Health and Human Services’ Office for Civil Rights (OCR), the proposed rule updates the 46-year-old anti-discrimination requirements of Section 504, which was implemented following the Rehabilitation Act of 1973. “Today’s rule is long overdue and a major step forward in the fight to ensure that people with disabilities are not excluded from or discriminated against in health care and social services across the United States,” OCR Director Melanie Fontes Rainer said in a release.
Proposed Changes
Under the proposed rule, recipients of federal financial assistance would be prohibited from directly or indirectly using measures, assessments, or tools that discount the value of life extension on the basis of disability that would be used to limit access or deny aids, benefits, or services. HHS does not specify the use of a specific value assessment in its proposal. As an example, HHS notes that a recipient using a value assessment method which ascribes a greater value to extending the life of individuals without disabilities than to those with disabilities when determining whether a certain drug will be placed on a higher formulary tier or be subject to additional utilization management controls would likely violate the law.
The Department is requesting stakeholder feedback on this proposal. Specifically, the public is invited to provide comments on: (1) how value assessments might provide unequal opportunities to people with disabilities; (2) additional forms of disability discrimination in value assessment not addressed by the proposed rule; and (3) whether, despite the exclusion of academic research within the rule, the proposed changes might negatively impact academic research.
HHS also knows within the proposed rule that despite prohibitions of discrimination within any program receiving federal financial assistance, instances of discrimination still persist. To alleviate this concern, the proposed rule places prohibitions on certain practices within the medical treatment context. In one example, OCR is proposing to expand on a guidance document to address the relationship between the law and the allocation of scarce medical treatments or other resources beyond the scope of the public health emergency. HHS also looks at issues in the organ transplant space and standards for accessible medical diagnostic equipment.
The proposed rule would also add new sections in regulation to ensure consistency with the Americans with Disability Act and other relevant court decisions. For example, the proposed rule includes a requirement that programs receiving federal financial assistance permit the use of trained service animals with certain outlined exceptions. Another requirement that facilities must ensure that equipment required to be used by individuals with disabilities is properly maintained. In another area, the proposed rule codifies that programs receiving federal financial assistance may only refuse to include individuals with disabilities in programs if they present a direct threat.