What Happened?
Just a quick heads-up. Yesterday, the U.S. District Court for the Northern District of Texas vacated the Department of Health and Human Services (HHS) Section 504 regulation’s “integrated setting” requirement nationwide in Texas v. Kennedy, No. 5:24-CV-225-H (N.D. Tex.). Neither the Department of Justice (DOJ) nor HHS defended the provisions. We flagged the rule's exposure back in RED ALERT: The HHS Section 504 Rule Is in Danger. The court left the other provisions (including the digital accessibility requirements) untouched… for now.
It may seem odd that this case, which initially focused on gender dysphoria, somehow shifted to a case about integrated settings, but as other portions of the case dropped away, that was the last surviving claim. DOJ’s legal opinion in June 2026 made clear that they don’t support the integrated settings requirements and gave the government its reason to switch sides and let the rule fall.
The ADA May be Safer than I Thought
This is also a good moment to correct something from an earlier post, The Coming Assault on Disability Rights. When I wrote my earlier post, I failed to look up DOJ’s 1990 Section 504 regulation. When Congress wrote the ADA in 1990, it did not hand DOJ a blank check to create its Title II regulation. Instead, it told DOJ to make the Title II regulation “consistent with regulations and analysis [of the Section 504 regulations],” 42 USC § 12134(b).
Well, guess what? It turns out that the 1990 regulation already included an integrated settings requirement in section 42.503(d) of that regulation (see page 470 of the 1990 regulation). In fact, the requirement that services be delivered in the most integrated setting appropriate had been part of the agency’s Section 504 regulation since 1978. The requirement predated the ADA in Section 504 and Congress said it wanted consistency between the Title II and Section 504 regulations. For the same reason, I also think that any of the other provisions in the 1990 Section 504 regulation that made its way into the ADA Title II regulation (like new construction, auxiliary aids and services, and any of the other proactive elements) are also safe. It’s strange to think that the Title II regulations may be safer than Section 504 regulations when Title II is based on Section 504.
OLC Memo Now Looks Even More Ridiculous
I think this is a slam dunk against OLC’s memo questioning the integrated settings requirement in the ADA. While the OLC memo would have you believe that DOJ conjured up the integration requirement out of thin air, this argument is disingenuous at best. Title II's integration requirement simply carried over from the agency’s Section 504 regulation, where it had been in place for 12 years.
What About the Web Regulation?
What about ADA Title II regulations that were not part of the 1990 Section 504 regulations? Of course, this includes the Title II web accessibility rule. While these may be on slightly shakier ground, I think that, as long as they are “consistent” with the Section 504 regulation and analysis, they should be relatively safe even after Loper Bright (see June 2024 Legal Update). For instance, ensuring that web content is readable and usable by people with disabilities is certainly consistent with the DOJ’s preexisting Section 504 requirement to provide auxiliary aids to qualified individuals with disabilities. After Loper Bright, however, the safer protection is to write the core requirements into the statutes instead of relying on agency regulations.
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.
Want to See More Content Like This?
Want the latest blog posts, videos, white papers, and announcements? Sign up for our mailing list and stay in the loop!
We're Here to Help When You're Ready
Take a deep breath. Then feel free to reach out to our team when you're ready to discuss your accessibility needs.
0 comments on “HHS’s Section 504 Integrated Setting Regulation is Gone”