August 27, 2019
Director, Office for Civil Rights
U.S. Department of Health and Human Services
Hubert H. Humphrey Building, Room 509F
200 Independence Avenue SW
Washington, DC 20201
RE: Advisory Letter in Response to Section 1557 Notice of Proposed Rulemaking: HHS-OCR-2019-000
Dear Mr. Severino:
The National Council on Disability (NCD) is an independent federal agency charged with advising the President, Congress, and other federal agencies on disability policy to advance the goals of the ADA: equal opportunity, full participation, independent living, and economic self-sufficiency for people with disabilities. On behalf of NCD, I write to detail our concerns about the proposed revisions to the Section 1557 Regulation (Section 1557) that would weaken protections for people with disabilities and have a harmful effect on the provision of effective healthcare for millions of people with disabilities.
Section 1557 is vital to addressing the long history of pervasive programmatic, physical, and attitudinal barriers in the health care context which have contributed to the significantly poorer health outcomes experienced by people with disabilities. Its provisions are critical because people with disabilities continue to encounter discrimination in accessing health care and discrimination in the manner that it is provided, including inaccessible medical offices, inaccessible medical equipment, and lack of effective auxiliary aids and services for those with sensory disabilities. In order to continue to protect the civil rights of people with disabilities in health care, it is vital that Section 1557’s regulations remain intact.
NCD is particularly concerned with the proposed changes to the following provisions:
Effective Communication for Individuals with Disabilities (45 CFR § 92.202)
Section 92.202(b) requires covered entities to provide appropriate auxiliary aids and services to persons with impaired sensory, manual, or speaking skills, where necessary to afford such persons an equal opportunity to benefit from the service in question. OCR seeks comment on whether to propose an exemption from the requirement for covered entities with fewer than 15 employees.
NCD opposes such an exemption because it will effectively release the majority of physicians’ offices from their obligation to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in health programs and activities. A recent study found that most physicians still work in small practices, with 57.8% working in practices of 10 or fewer physicians and 37.9% working in practices with fewer than 5 physicians. According to the proposed rule, HHS concluded that almost all practicing physicians in the United States are reached by Section 1557. Taking the study results together with the HHS conclusion – 95.7% of physicians work in small practices and would not have to provide auxiliary aids and services should this exemption be provided. This would be devastating to people with sensory disabilities.
For some patients with sensory disabilities, the only way to effectively communicate is with the use of auxiliary aids and services. Section 92.202 ensures that people with communication disabilities who rely on such aids and services have an equal opportunity to understand what their healthcare provider is communicating and to be able to ask and receive answers about their health in an effective manner just like any other patient. The proposed exemption would impose a serious barrier to accessing healthcare for people with sensory disabilities who require such aids and services: they would no longer be able to effectively communicate with their provider, they would not be able to choose from a full spectrum of providers based on proximity or specialty, would be burdened with locating providers who would provide such aids, and relegated to using only larger providers who might be farther away or lack the expertise they need. This would particularly impact those in rural or semi-rural areas where physicians and specialists typically have smaller practices and they are in shorter supply.
Moreover, the exemption is not necessary. Section 92.202(a) provides a manner by which any covered entity may avoid the obligation to provide auxiliary aids and services if it can demonstrate that doing so would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. HHS has recognized that Congress favors a case-by-case approach for determining a public accommodation's obligation to provide auxiliary aids rather than a broad exemption for small providers.
HHS previously reasoned that it would not include this exemption in the Section 1557 Regulation because requiring all entities, regardless of size, to provide auxiliary aids and services furthers consistency among disability discrimination laws and the goal of improving access to healthcare and requiring all entities to provide auxiliary aids and services would result in enhanced services for people with disabilities. NCD urges HHS to stand by this reasoning.
NCD also recommends that HHS clarify that the list of auxiliary aids and services in proposed § 92.102(b)(1) is not exhaustive, maintain the term “Qualified” before “Interpreters” in proposed § 92.102(b)(1)(i) and before “Readers” in proposed
§ 92.102(b)(1)(ii), incorporate the definition of “Qualified readers” found at 28 CFR
§ 35.104 and ensure that the requirement to provide services “free of charge and in a timely manner” in proposed § 92.102(b)(2) is applied to all “auxiliary aids and services,” not just “interpreter services.”
Accessibility Standards for Buildings and Facilities (45 CFR § 92.203)
This provision requires that new construction or alteration of buildings or facilities must comply with the 2010 ADA Standards for Accessible Design by January 18, 2018, with certain exceptions. OCR seeks comment on the appropriateness of applying the 2010 ADA Standards’ definition of “public building or facility” to all entities covered under Section 1557, specifically with respect to (a) benefits to people with disabilities and (b) burdens on private entities related to multistory building elevators and text telephone (“TTY”) requirements.
Application of the 2010 ADA Standards
It is necessary and appropriate to apply the 2010 ADA Standard’s definition of “public building or facility” to all health programs and activities that receive federal financial assistance under Section 1557 and hold them to the higher ADA Title II standards. Covered Entities under Section 1557 are health programs and activities that either receive Federal financial assistance from HHS or are conducted directly by HHS. As recipients of Federal financial assistance, they should all be held to the higher Title II standards as a condition of their receipt of that assistance. The suggestion that a health program or activity receiving Federal financial assistance would be held to a lesser standard for accessibility and therefore limit access by people with disabilities is unacceptable.
Multistory Building Elevators
Section 206.2.3 of the 2010 ADA Standards provides, in relevant part, that “in private buildings or facilities that are less than three stories or that have less than 3000 square feet per story, an accessible route shall not be required to connect stories provided that the building or facility is not . . . the professional office of a health care provider . . ..” Certainly, the reason for not allowing health care providers to avail themselves to this exemption was the understanding that accessible locations are crucial to patients. Providing this exemption to healthcare providers will result in increased barriers to healthcare all over the country and will significantly impair the ability of people with mobility disabilities to get necessary care. The burden on people with disabilities and entire communities will be far greater than on healthcare providers who have been aware of the requirement regarding accessibility tied to the receipt of federal funds for decades. NCD strongly urges HHS not to allow this exemption for covered entities.
NCD also opposes lowering the private entity TTY standard. Section 217.4.3 of the 2010 ADA Standards provides, in relevant part, that “where at least one public pay telephone is provided in a public building, at least one public TTY shall be provided in the building” and “where four or more public pay telephones are provided in a private building, at least one public TTY shall be provided in the building.” It is inexpensive for covered entities to provide a TTY and the benefits of a TTY for people with hearing disabilities are significant. NCD recommends that HHS retain the current standard for private health care entities. Although the Standards are outdated - NCD recommends that HHS retain the current standard. TTYs continue to be frequently relied upon in rural areas, and no other technology connects a caller with a hearing disability as directly and as securely to 911 during an emergency.
Accessibility of Information and Communication Technology for Individuals with Disabilities (45 CFR § 92.204)
This section requires covered entities to ensure that their health programs or activities provided through electronic and information technology are accessible to individuals with disabilities, unless doing so would result in undue financial and administrative burdens or a fundamental alteration in the nature of the health programs or activities. HHS requests comment on whether it should cross-reference Section 508 of the Rehabilitation Act and its applicable implementing regulation in proposed § 92.104.
NCD supports this proposed change. Cross-referencing Section 508 and its regulation will help ensure that the Section 1557 Regulation remains current as the Section 508 regulation is amended and will provide consistency across the two laws.
NCD also wishes to raise a concern about the proposed change to the definition of “information and communication technology” (ICT) in proposed section 92.104(c). HHS proposes to incorporate the definition of ICT from the U.S. Access Board regulations but has removed the phrase “are not limited to”  from the list of examples in the definition. This would limit the types of ICT recognized under Section 1557 and would not allow new technologies to be recognized as they emerge. NCD believes this is problematic and recommends that HHS retain the phrase.
Requirement to Make Reasonable Modifications (45 CFR § 92.205)
This section requires covered entities to make reasonable modifications to policies, practices, or procedures when necessary, to avoid discrimination on the basis of disability, except if the modification would fundamentally alter the nature of the health program or activity. HHS seeks comment on whether this provision should be retained or substituted with language conforming to the Department of Justice’s Section 504 coordinating regulations which state that covered entities “shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified” individual with a disability. HHS also seeks comment whether to include an exemption for “undue hardship.”
NCD strongly recommends that HHS retain the current provision on “reasonable modification.” The provision conforms to other nondiscrimination regulations that apply to state and local governments and public accommodations, including hospitals and medical providers, and it is also consistent with other regulations applicable to covered entities. The 1557 Regulation applies the definition of “reasonable modification” from Title II of the ADA, which is regarded as the appropriate standard for recipients of federal financial assistance. Moreover, the concept of “reasonable modification” is not burdensome. It has long applied to a broad swath of entities, whether public or private, and it is therefore clear and familiar to most entities covered under Section 1557. There is no reason to change this language.
NCD also opposes an exemption for “undue hardship.” The fact that any requested modification to policies, practices, or procedures must be “reasonable” protects covered entities from undue hardship.
Definition of Covered Entity
NCD disagrees with the proposal to narrow the definition of a “covered entity.” Congress made clear in Section 1557 that if one part of an entity receives Federal financial assistance, the entire entity is covered. Congress also made clear that Section 1557 addressed discrimination in health insurance: Section 1557 prohibits disability-based discrimination in “any health program or activity, any part of which is receiving Federal financial assistance, including . . . contracts of insurance . . ..” Health insurers have a significant role in the provision of health care, including controlling access to health care services. NCD strongly recommends retaining the current definition of covered entity.
Notice of Nondiscrimination
HHS’ proposes to repeal the requirement that covered entities provide a notice, with each significant communication to individuals, informing them that they provide auxiliary aids and services for people with disabilities, including qualified interpreters and information in alternate formats; how to obtain auxiliary aids and services; and that the entity does not discriminate on the basis of race, color, national origin, sex, age or disability. HHS points out in the proposed rule that “repealing the notice of nondiscrimination requirement may result in additional societal costs, such as decreased utilization of auxiliary aids and services by individuals with disabilities due to their reduced awareness of such services.”
NCD opposes repealing this notice requirement. If the notice requirement is repealed, people with disabilities will be unlikely to know that aids and services are available, how to request them, or their right to file a complaint when they experience discrimination. This change will also make it much less likely that OCR will receive complaints from people who have experienced discrimination. This will negatively impact OCR’s efforts to ensure covered entities abide by their obligations and would allow discrimination to go unchecked. NCD strongly urges HHS to retain this requirement.
Medical Diagnostic Equipment Standards
NCD is extremely concerned about the significant barriers to health care posed by the common lack of accessible medical diagnostic equipment (AMDE) in most health care settings. As HHS is aware, lack of AMDE contributes to a lack of preventive care that is necessary for early diagnosis of diseases and has been linked to poor health outcomes, poorer quality of life, and shorter length of life for people with disabilities. When a person cannot be properly examined because he cannot transfer onto an exam table or a diagnostic machine, non-diagnosis and misdiagnosis are likely. Disease and illness that may be treatable if caught early may become worse or incurable, resulting in high human and economic costs. According to the Centers for Disease Control, chronic diseases that are avoidable through preventive care services account for 75 percent of the nation's healthcare spending and lower economic output in the US by $260 billion dollars a year.
In its Proposed Rule on Section 1557, OCR explained that it considered adding specific language on accessibility standards for medical diagnostic equipment to the Section 1557 Regulation, but that it was deferring from doing so because the U.S. Access Board was developing standards for such equipment. OCR further explained that it intended to issue regulations or policies requiring covered entities to abide by the AMDE Standards after they were promulgated.
The U.S. Access Board finalized its AMDE Standards on January 9, 2017, and NCD strongly encourages HHS to incorporate these Standards to the Section 1557 Regulation during this rulemaking. Incorporation of the AMDE Standards is a necessary action in eliminating one of the most problematic and persistent barriers to healthcare experienced by people with mobility disabilities.
In conclusion, NCD appreciates OCR’s enforcement efforts to ensure healthcare providers comply with federal disability rights laws and improve access to healthcare for people with disabilities. The proposed changes to Section 1557 discussed herein, however, are contrary to these efforts because they would impose limitations on healthcare access in a number of ways and help perpetuate discrimination in healthcare that has long prevented people with disabilities from living healthier, longer lives and burdened the nation’s economy. We urge HHS to reconsider these changes in light of this certain result and maintain the current provisions without change.
Should you wish to discuss this letter, please do not hesitate to contact Ana Torres-Davis, Attorney Advisor, at (202) 272-2004.
 Covered entity means: (1) An entity that operates a health program or activity, any part of which receives Federal financial assistance; (2) An entity established under Title I of the ACA that administers a health program or activity; and (3) The US Department of Health and Human Services. 45 CFR 92.4.
 Carol K. Cane, AM. MED. ASSOC., Policy Research Perspectives: Updated Data on Physician Practice Arrangements: Physician Ownership Drops Below 50 Percent 4–5 (2017), available at https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/pub.... The Benchmark surveys are of practicing physicians who provide a minimum of 20 hours of patient care per week in one of the 50 states or the District of Columbia and who are not employed by the federal government. According to the proposed rule at page 27878, HHS concluded that almost all practicing physicians in the United States are reached by Section 1557.
 Nondiscrimination in Health and Health Education Programs or Activities, 84 FR 27846, 27878 (June 14, 2019).
 Section 92.202(a) provides that “A covered entity shall take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in health programs and activities, in accordance with the standards found at 28 CFR 35.160 through 35.164 (Title II ADA). Where the regulatory provisions referenced in this section use the term “public entity,” the term “covered entity” shall apply in its place.” Section 35.164 provides the fundamental alteration exemption.
 See, Office for Civil Rights; Section 504 of the Rehabilitation Act of 1973; Notice of Exercise of Authority Under 45 CFR 84.52(d)(2) Regarding Recipients with Fewer Than Fifteen Employees. December 19, 2000.
 81 Fed. Reg. 31407 (May 18, 2016).
 Public Building or Facility. A building or facility or portion of a building or facility designed, constructed, or altered by, on behalf of, or for the use of a public entity subject to title II of the ADA and 28 CFR part 35 or to title II of the ADA and 49 CFR 37.41 or 37.43. https://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards.pdf
 36 CFR Part 1194, Appendix A, E103.4.
 42 U.S.C. § 18116(a).
 https://healthpayerintelligence.com/news/how-preventive-healthcare-services-reduce-spending-for-payers; https://www.cdc.gov/chronicdisease/about/costs/index.htm
 80 Fed. Reg. 54172 (Sept. 8, 2015).
 Id. at 54187.
 Id. at 54187.
 ATBCB, Standards for Accessible Medical Diagnostic Equipment: Final Rule, 82 Fed. Reg. 2810 (Jan. 9, 2017) (codified at 36 CFR Part 1195).