Comments on the Department of Health and Human Services Section 504 Notice of Proposed Rulemaking (November 9, 2023)

November 9, 2023

Molly Burgdorf
Section Chief, Policy Division
United States Department of Health and Human Services
Office for Civil Rights
200 Independence Avenue, SW
Washington, DC 20201

RE: RIN 0945-AA15

Dear Chief Burgdorf:

The National Federation of the Blind appreciates the opportunity to comment on the notice of proposed rulemaking (NPRM) regarding Discrimination on the Basis of Disability in Health and Human Service Programs or Activities. While we are pleased to see the Department of Health and Human Services (HHS) publish the NPRM, and are generally agreeable to the broader aspects of the proposed rule, there are specific parts of the proposed rule which give us serious cause for concern. We specifically refer to the seven exceptions for the accessibility of web content and mobile apps that a recipient of Federal financial assistance makes available to the public. We were vehemently opposed to these same exceptions when they were introduced in the ADA Title II NPRM published by the Department of Justice on August 4, 2023, and we remain vehemently opposed to them here. We believe this proposed rule published by HHS could have been an opportunity to advance digital accessibility for Americans with disabilities, but instead it treads in the same misguided, inappropriate, and egregious footsteps as the proposed Department of Justice rule did just a few short months ago. 

First and foremost, while we have specific concerns regarding each of the seven exceptions proposed in § 84.85 of the NPRM, which we will address below, we also have an overarching concern with the introduction of any new exceptions to accessibility standards. The current legal defenses of undue burden and fundamental alteration are sufficient. Both of these longstanding exceptions are well recognized by both Americans with disabilities and by the United States legal system. They are also acknowledged in this NPRM, yet the Department deemed it appropriate to introduce seven new classes of exception for recipients to use in order to avoid making their web and mobile app content accessible. The introduction of these new exceptions is inappropriate and unnecessary. Therefore, as we said in our comments to the Department of Justice on the recently released Title II website and mobile app NPRM containing these same seven exceptions, we oppose any rule that may be published containing any of these exceptions. 

While it may arguably be an undue burden in some circumstances to make pre-existing content accessible, the relevance of this defense is being rapidly mitigated through the advancement of technology. For new content, we are living in an era where digital accessibility is already relatively easy to attain, and it is only getting easier. Therefore, the assumption of burden, and thus the exceptions, should not be applied to new content developed and posted after the regulation. The regulation already gives recipients two or three years, depending on size, to come into compliance. This is more than enough time for recipients to develop processes and procedures to ensure new content is accessible. Providing accessibility for new web and mobile content is neither burdensome nor costly, and recipients should not be able to avoid providing accessibility for new content unless they can demonstrate that doing so would actually constitute an undue burden or fundamental alteration. 

The proposed exceptions go far beyond the current undue burden and fundamental alteration defenses and, therefore, substantively decrease the obligations of existing law. Whereas the undue burden defense depends on both the resources of the recipient and the difficulty and expense of accessibility, the proposed exceptions exempt broad swaths of new and existing content, regardless of how easy the content is to make accessible and regardless of the resources available to do so. These existing defenses of undue burden and fundamental alteration are sufficient. Some existing content may properly be subject to an exception because it may arguably be presumed that it will be burdensome in most instances. However, new content should never be presumed to be burdensome to make accessible in the absence of some unusual constraint on the resources of the recipient. The recipient is in the best position to determine what those constraints are, to document them, and to respond to any assertion of liability. People with disabilities should not lose access to important government information, including new content by larger recipients, simply because some smaller recipients may, for reasons unique to them, have difficulty complying. Those recipients already have a defense available.

Nor is there any basis for departing from the undue burden and fundamental alteration defenses or for creating new defenses. The existing defenses have been workable for state and local government entities for over three decades. Therefore, we must urge the Department to limit its exceptions to existing content where accessibility would constitute an undue burden or fundamental alteration. Those exceptions should be based on the difficulty of achieving accessibility (which is greater for preexisting content and negligible for new content) and the resources available to the recipients (which is already addressed by the larger period for compliance given to smaller recipients in the proposed rule).

The broader aspects of the NPRM that we are agreeable to are the rights of parents with disabilities outlined in § 84.60, the requirement for recipient kiosks to be accessible outlined in § 84.83, the compliance timeline for small (less than fifteen employees) and large (fifteen or more employees) recipients, and the establishment of the Web Content Accessibility Guidelines (WCAG) 2.1 AA as the accessibility standard. 

The National Federation of the Blind and its members have frequently encountered discrimination in child welfare and adoption systems across the country and we frequently challenge such discrimination. Blind parents are often subjected to unfounded negative assumptions by child welfare agencies and medical professionals about their ability to parent, resulting in unnecessary, burdensome, and harmful investigations as well as devastating removals of children from their parents’ care. Child welfare agencies and medical professionals need to understand that blindness does not limit a person’s ability to be a good parent, as has been demonstrated by blind parents through the ages. These agencies and professionals must be called upon to check their own assumptions and educate themselves about blind parents before initiating disruptive and harmful actions against families. In addition, the NFB has found deep-seated discriminatory attitudes in the foster care and adoption systems across the country. Just last year, we were called upon to intervene when a foster care agency refused to allow a blind prospective parent to foster a child because of assumptions about her blindness. Again, foster and adoptive children should have access to the full diversity of the prospective parent community, not just those without disabilities. In addition to the ingrained prejudices blind parents and caregivers face in these systems, they are often denied reasonable accommodations to assessments, tests, and evaluations – requiring them to meet impossible vision-based standards when, with accommodations, they could demonstrate their parenting skills. Finally, blind parents and caregivers are often denied access to services that would improve their parenting skills – even when nondisabled parents would be given supportive services. It is essential that blind parents have access to tailored supportive services to improve their parenting when necessary to allow reunification or placement of children. The prohibitions set forth in § 84.60 regarding discrimination against parents with disabilities or parents of children with disabilities are strong, and we applaud them. Under this section, discrimination includes “decisions based on speculation, stereotypes, or generalizations,” and recipients are required to arrange necessary referrals and reasonable accommodations tailored to disability-related needs. We at the National Federation of the Blind know the negative impact of stereotypes and low expectations, and we appreciate that the Department recognizes the harmful effects that false assumptions and generalizations can have. 

We believe § 84.56 should be strengthened to require non-visual accessibility of medical devices that are meant for patient use (“home use medical devices”) that receive Federal financial assistance at any stage of development and to require prescribers of such medical devices to prescribe accessible versions of such devices when needed by the blind patient. This provision is consistent with the general nondiscrimination provisions contained at § 84.56(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 developers and providers of medical devices who are recipients of Federal funding. Research is clear that the inaccessibility of home medical devices results in poorer health outcomes across the board. Although we understand that many developers of medical programs, services, activities, and products are not Federally funded and so are not subject to the terms set out in this proposal, we acknowledge that the vast majority of the entities who do receive Federal funds for the development and implementation of such goods and services are not currently following Section 504 in practice. The result is that those programs, services, activities, and products that are in part Federally funded are simply neither developed nor implemented with accessibility in mind, further resulting in countless cases of disabled people being unable to effectively or independently manage their healthcare.

Additionally, we applaud the requirement that recipient kiosks be accessible, as outlined in § 84.83. The language used in this section is clear, concise, and not subject to the seven exceptions set forth in § 84.85, which are described below. However, we request that this section be strengthened to require that kiosks enable individuals with disabilities to access the same information as, to engage in the same interactions as, to communicate and to be understood as effectively as, and to enjoy the same services as are offered to, other individuals with the same privacy, same independence, and same ease of use as individuals without disabilities. This standard is achievable for kiosks, as is demonstrated by the fact that the Air Carrier Access Act, Section 508 of the Rehabilitation Act, and courts under the Americans with Disabilities Act have required airline, government, and public accommodation kiosks to be accessible for years. Allowing recipients of federal funding to relegate blind patrons to waiting in line for staff assistance when every other customer can independently and privately use a kiosk is exactly the second-class service Section 504 was designed to eliminate. It should be made clear that the presumptive means of compliance with this requirement is compliance with WCAG 2.1 AA. None of the exceptions for web content have any relevance to kiosks so should not be incorporated into this requirement.

Regarding the adoption of WCAG 2.1 AA as the accessibility standard, we are pleased with this requirement. WCAG 2.1 AA is the current industry standard for digital accessibility, therefore it is reasonable and appropriate for the Department to establish it as the required accessibility standard for kiosks, web content, and mobile applications. We would like to make one suggestion, which is to require recipients to continue to meet WCAG standards as they evolve beyond version 2.1 AA. For example, now that WCAG 2.2 has been published we would support its inclusion as the current accessibility standard. Technology changes from day to day. It would make sense for recipients to change with it in order to meet the standard of what is deemed accessible both now and in the future.

Outlined below are the seven exceptions to accessibility of recipient web content and mobile apps, as set forth in § 84.85, as well as our specific objections to them. As stated above, we would oppose any rule that may be published containing any of these exceptions.

Exception 1: Archived Web Content

The National Federation of the Blind urges that this exception for recipient web content and mobile apps be eliminated.

While we agree with the implication of the NPRM that the resources of entities should be focused on making content accessible moving forward, entities already have the existing exceptions of undue burden and fundamental alteration, as indicated numerous times in the proposed rule. The current defenses, unlike the proposed exception, would not permit newly created content to be archived inaccessibly.

Exception 2: Preexisting Conventional Electronic Documents

The National Federation of the Blind urges that this exception for recipient web content and mobile apps be eliminated.

There is simply no basis for exempting newly created electronic documents and, even for existing content, the electronic document file formats that are covered by this exception are far too broad and, in general, are easily made accessible. There is no reason why any of the document types listed in the NPRM should not be required to be accessible. If this exception remains, recipients may deny that descriptive and informative conventional electronic documents are used to access programs, services, or activities, and therefore, decline to make them accessible. Given the existing exemptions for undue burden and fundamental alteration, this newly proposed exception is unnecessary at best, and actively harmful at worst. 

Exception 3: Web Content Posted by a Third Party

The National Federation of the Blind urges that this exception for recipient web content and mobile apps be eliminated.

While we understand that it may be difficult for recipients to control some content posted by a third party on the recipient’s website, most third-party content should still be required to be accessible. Recipients certainly have the option not to include new third-party content in their websites or apps unless the content is made accessible. To not require accessibility in this area would deprive citizens with disabilities of their right to be informed in matters that may be posted on public message boards hosted on the recipient’s website. 

Exception 4: Linked Third-Party Web Content

The National Federation of the Blind urges that this exception for recipient web content and mobile apps be eliminated.

Federal financial assistance recipients frequently rely on links to third-party web content to provide both information about and access to certain services. If these links, all of which are accessed through the recipient’s own website, are not required to be accessible, important information will be inaccessible to people with disabilities. 

Exception 5: Postsecondary Institutions: Password-protected Class or Course Content

The National Federation of the Blind urges that this exception for recipient web content and mobile apps be eliminated. 

This exception, and the similar exception for password-protected course content at elementary or secondary schools, are unequivocally the most egregious of the new exceptions offered by the proposed rule. Many colleges and universities already have policies requiring new digital content to be accessible from the beginning, subject only to the existing defenses of undue burden and fundamental alteration. This is because they have learned from past experience that trying to comply with their effective communication obligations after the fact on an ad hoc basis is costly and simply does not work. This exception would exclude blind and print disabled students from postsecondary education and undermine expectations by both students and public postsecondary institutions about what accessibility requires. This exception is simply unnecessary and unacceptable for new content. Further, the compliance delays proposed by the NPRM eliminate any need for this exception for pre-existing content, which will be outdated by the time the regulation comes into effect. 

Exception 6: Elementary and Secondary Schools: Password-protected Class or Course Content

The National Federation of the Blind urges that this exception for recipient web content and mobile apps be eliminated.

As with the previous exception, this exception for password-protected content at public elementary or secondary schools is wholly inappropriate and unnecessary. Public elementary and secondary schools are already complying, for the most part, with the existing rules regarding accessibility. This proposed exception will exclude blind and print disabled students from elementary and postsecondary education, and it will set accessible education for students with disabilities back by decades. This and the previous exception are, in no uncertain terms, a step in the wrong direction in the public education of American students with disabilities. 

Additionally, this proposed exception will exclude blind parents and guardians of children enrolled in public elementary and secondary schools from meaningfully participating in their children’s educations – effectively stripping them of their right to parent. A major benefit to the creation of password-protected websites in the public school environment is permitting and encouraging parents to be active participants in their children’s education while preserving student and family privacy. These sites facilitate communication with educators, allow parents to understand what and how their children are learning, and alert parents to potential concerns in the areas of attendance, behavior, and academic performance. Additionally, in recent years, these sites have become important tools to share with parents any warnings from staff about the health, safety, and welfare of students in public school buildings, from infections to allergies to violence. 
This proposed exception also negatively affects blind educators. Public schools use password-protected sites to enable their educators and other staff members to perform their jobs. However, because of the inaccessible websites their employers require them to use, many blind educators are being forced to leave teaching altogether. 
If left in the final rule, this proposed exception will unnecessarily result in blind children, blind parents, and blind educators being excluded from participation in and being denied the benefits of services, programs, and activities of a public entity.

Exception 7: Individualized, Password-protected Documents

The National Federation of the Blind urges that this exception for recipient web content and mobile apps be eliminated. 

In accordance with current law, many of the documents, such as electronic health records, covered by this exception are already made accessible by recipients. The introduction of this exception by the proposed rule would encourage those same recipients to utilize this easy way out of making patient records accessible. This exception would be a step backward for people with disabilities. Just when patients are beginning to have access to their health records to inform their medical decisions, this exception would reverse course and allow those easy formats to be inaccessible, denying patients with disabilities equal access to their own health care.

The National Federation of the Blind again appreciates the opportunity to comment on the HHS proposed rule, and we look forward to a more accessible future going forward. However, despite the certain positive accessibility requirements in this proposed rule, we must be in opposition to any rule, regardless of which Federal agency from which it originates, containing any of the seven exceptions outlined above. If there are any further questions, or if we can be of assistance in any way, please do not hesitate to contact us. 

Mark A. Riccobono, President
National Federation of the Blind