The Department of Health and Human Services (HHS) just issued a new Section 504 regulation that will have a huge impact of health care providers around the country. Back in September, I blogged about the draft regulations created by HHS. Then, on Monday, I mentioned that the final HHS regulations were issued, but left it to others to discuss its impact. A lot of people haven't really talked about the real impact of this rule on web and digital accessibility so I thought it was important to discuss how earth-shattering it really is.
What Does the Regulation Cover?
Even if you knew about the new HHS regulation, you would be excused in missing the WCAG requirements. It's a HUGE update (link to Federal Register and link to downloaded copy). The regulation is 130 pages of very small text (the advance copy was a shocking 436 pages of normal size text!). This is a bit deceiving, however, because the first 117 pages are background analysis.. Nonetheless, even at 13 pages, the actual text of the regulation is quite long. Fortunately, HHS issued a one-page fact sheet that neatly summarizes the rules requirements. In a nutshell, the new regulation covers everything from medical equipment to child welfare programs-- and different ways in which these programs can create barriers for people with disabilities. It also brings HHS regulations in line with all of the 2010 updates to the ADA regulations-- including diverse topics like "other power-driven mobility devices" and miniature horses as service animals (sort of).
What Does it Say about Web Accessibility?
This blog, of course, focuses mostly on digital accessibility. This part is tiny but hugely important and is contained in a new Subpart I of HHS's regulation. In the attached copy, it only goes from page 128 to 129. But rather than make you hunt around, I've copied the full text of the regulation below. If you look over the text of Subpart I below and get a feeling a déjà vu, you should-- it's exactly the same requirements as the DOJ Title II regulation!
While I think the HHS regulation is great and will have a huge impact on improving life for people with disabilities, it has one enormous problem-- the exception for individualized, password-protected documents! This was my biggest complaint about the new DOJ Title II web regulation. In fact, the exact scenario that I described in that blog is coming home to roost in the HHS regulation. Specifically, here's what I said back on April 8,
The final rule keeps several exemptions from the NPRM but none of them frosts me more than the exemption for individualized, password-protected electronic documents. Why? Because most of these documents exist in a system of records and make sense only in context to other (inaccessible) documents in that system of records. What do I mean by that? Well, imagine that you a blind user and you are looking at your lab results for your cholesterol values. While knowing the latest value is important, it's even more important to know what the trend of those values are-- that is, looking at how your current value compares to six months ago. The insulting part is that DOJ recognized this need and described it as part of their rulemaking analysis, ultimately concluding that it was too burdensome to require public entities to make such documents accessible.
And that nightmare scenario is exactly what happened in the HHS regulation! To reiterate the impact here. Tons of health providers and hospitals use systems like Epic or MyChart for their patient health records. These systems are all password protected for compliance with the Health Insurance Portability and Accountability Act (HIPAA). So this means that every electronic document in that system doesn't have to be accessible.
This problem is also a huge miss and reveals that the DOJ attorneys who created the Title II web regulation didn't understand either WCAG or how PDF documents are created. When automated systems create medical records, they don't create original documents. Instead, they insert data into existing forms. I'm just a lawyer and not exactly an expert on PDF accessibility, but even I know that these documents can automatically be made accessible if the template is accessible. Some medical records are complex, such as the ECG readout (that looked like a series of squiggles) I recently had in my medical records. WCAG and PDF/UA don't require a detailed description of the impact of that squiggle, however (just the alt text "ECG readout" would have worked) and a templated PDF would have made the relevant part-- the doctor's analysis of the ECG-- accessible.
To their credit, HHS didn't have much wiggle room here. Title II of the ADA is based on Section 504 and it makes a lot of sense for Section 504 and Title II requirements to be harmonized. So when DOJ kept this exemption in its Title II regulation, HHS didn't have a lot of choice but keep it in its Section 504 regulation. But I also get the sense that the team at HHS wasn't completely thrilled with DOJ's direction because they hardly discussed this exception at all.
Why is this Rule Enormously Important?
Putting aside the huge elephant in the room (the exception for password-protected, individualized electronic documents), the HHS rule is amazing because of the breadth of its impact. The scope of the regulation goes far beyond those entities who get a grant from the Department of Health and Human Services. Instead, the following entities are covered by this rule:
- Any hospital, health care provider, or other entity that care for anyone who participates in Medicare or Medicaid;
- Medicare Advantage Plans (e.g., HMOs and PPOs) (recipients under Medicare Part C)
- Prescription Drug Plan sponsors and Medicare Advantage Drug Plans (recipients under Medicare Part D)
- Human or social service agencies
- Insurers who are participating in the Marketplaces and receiving premium tax credits.
This is huge-- basically, it covers every health care provider, every health insurance company, and every social service agency!
Section 504 Covers So Much More than People Think
Section 504 covers SO MUCH MORE of the public and private sector than most people realize. For instance, every college or university that accepts students using student loans is covered by the Department of Education's Section 504 regulation. They also don't create nearly as much controversy as laws like the ADA, which are sometimes criticized as being "unfunded mandates." After all, if an entity objects to what the funding agency requires, they don't have to accept federal financial assistance. Even the current Supreme Court has little trouble finding that the Federal government can attach significant strings to federal financial assistance.
When Do They Have to Do It?
As noted, organizations that receive federal financial assistance from HHS need to make their websites and mobile applications comply with WCAG 2.1 A/AA. The exact deadline for getting this done comes down to the publication date (yesterday) in the Federal Register and is based on the size of the organization:
- May 10, 2026 for organizations with 15 or more employees.
- May 10, 2027 for organizations with less than 15 employees.
This is explained in Section 84.84(b) of the regulation.
What Does the Full Regulation for Web Accessibility Say?
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 Effect of noncompliance that has a minimal impact on access.
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 provides or makes available, directly or through contractual, licensing, or other arrangements; and
(2) Mobile apps that a recipient provides or makes available, directly or through contractual, licensing, or other arrangements.
(b) Requirements.
(1) Beginning May 11, 2026, a recipient with fifteen or more employees shall ensure that the web content and mobile apps that the recipient provides or makes available, directly or through contractual, licensing, or other arrangements, 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 in undue financial and administrative burdens.
(2) Beginning May 10, 2027, a recipient with fewer than fifteen employees shall ensure that the web content and mobile apps that the recipient provides or makes available, directly or through contractual, licensing, or other arrangements, 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 in 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 material approved for incorporation by reference (IBR) is available for inspection at HHS and at the National Archives and Records Administration (“NARA”). Contact HHS, OCR at: Office for Civil Rights, U.S. Department of Health and Human Services, 200 Independence Ave., SW, Room 509F, HHH Building, Washington, D.C. 20201; phone: (202) 545-4884; email: 504@hhs.gov. For information on the availability of this material at NARA, visit www.archives.gov/federalregister/cfr/ibr-locations 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/ and https://perma.cc/UB8A-GG2F.
§ 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 that are available as part of a recipient’s web content or mobile apps before the date the recipient is required to comply with § 84.84, unless such documents are currently used to apply for, gain access to, or participate in the recipient’s programs or activities.
(c) Content posted by a third party. Content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the recipient.
(d) Individualized, password-protected documents or otherwise secured conventional electronic documents. Conventional electronic documents that are:
(1) About a specific individual, their property, or their account; and
(2) Password-protected or otherwise secured.
(e) Preexisting social media posts. A recipient’s social media posts that were posted before the date the recipient is required to comply with § 84.84.
§ 84.86 Conforming alternate versions.
(a) A recipient may use conforming alternate versions of web content, as defined by WCAG 2.1, to comply with § 84.84 only where it is not possible to make 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 material approved for incorporation by reference is available for inspection at HHS and at NARA. Contact HHS, OCR at: Office for Civil Rights, U.S. Department of Health and Human Services, 200 Independence Ave., SW, Room 509F, HHH Building, Washington, D.C. 20201; phone: (202) 545-4884; email: 504@hhs.gov. For information on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations 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/ and 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 compliance with the requirements of § 84.84 would result in a fundamental alteration in the nature of a program or activity or in 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 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 Effect of noncompliance that has a minimal impact on access. A recipient that is not in full compliance with the requirements of § 84.84(b) will be deemed to have met the requirements of § 84.84 in the limited circumstance in which the recipient can demonstrate that the noncompliance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the recipient’s web content or mobile app to do any of the following in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use:
(a) Access the same information as individuals without disabilities;
(b) Engage in the same interactions as individuals without disabilities;
(c) Conduct the same transactions as individuals without disabilities; and
(d) Otherwise participate in or benefit from the same programs and activities as individuals without disabilities.
Disclaimer
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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