Federal Agencies Should Not Follow DOJ’s Lead Right Now

I want to focus on just one exception in the HHS NPRM rule. Section 84.85(g) states that,

The requirements of § 84.84 do not apply to the following.... (g) Individualized, password-protected documents. Conventional electronic documents that are: (1) About a specific individual, their property, or their account; and (2) Password-protected or otherwise secured.

This exception would cover any document in a patent record system because every health care system is secure in order to meet HIPAA requirements. In my post about the DOJ rule, I questioned whether DOJ was really proposing that one's patient records don't have to be accessible. I considered inaccessible patient records as the worst case scenario because nothing is more vital than one's health and people with disabilities are particularly susceptible to increased health risks.

Well, apparently both DOJ and HHS find this worst case scenario acceptable. While DOJ did note the effective communication requirement still applies and that "these documents would generally still need to be provided in an accessible format if a person with a disability requests them," I can't see this happening in the vast majority of real world situations. Instead, people with disabilities will just call their doctor for an explanation of their medical condition because they will be unwilling to wait for several weeks while the electronic documents are being made accessible.

The proposed approach creates a number of headaches for patients with disabilities. First, it robs them of their independence because it forces them to request accessible versions of their health records every time that there is an update to those records. Second, because there is no obligation for health care providers to maintain the accessible versions of its records, it puts the burden of maintaining health records on the patient. Third, it creates no incentives for records management systems or patient records to ever become accessible in the first place-- and this means that the first two problems will only get compounded over time.

When HHS published its NPRM, it gave hardly any analysis for why it was adopting such a crazy rule. Instead, it simply stated,

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.