The section “Accessibility of electronic and information technology” (45 CFR § 92.204) contains the implementing regulations for Section 1557 of the Affordable Care Act.
The rule provides for broad protection for individuals with disabilities and requires covered entities to make all programs and activities provided through digital channels to be accessible. The first requirement—paragraph (a)—defines the core of the regulation which requires that “health programs or activities provided through electronic and information technology are accessible to individuals with disabilities.” Paragraph (b) reiterates that covered entities also covered under Title II of the ADA most also comply those requirements.
The definition of ‘‘disability’’ is the same as the definition of this term in the Rehabilitation Act, which, in turn, incorporates the definition of disability in the ADA. That definition was updated as part of the ADA Amendments Act (ADAAA) of 2008. This broadly defines disability as “as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability.” This definition is intentionally broad and meant to cover both currently known disabilities and those that may evolve over time.
The term ‘‘electronic and information technology’’ is defined as having the same meaning it has in the implementing regulations for Section 508 of the Rehabilitation Act. This term is currently defined in 36 CFR 1194.4. As the Section 508 standards were going through a refresh at the time of the rulemaking for Section 1557 the Office of Civil Rights (OCR) allowed this to be updated to “any term that replaces ‘‘electronic and information technology’’ at 36 CFR 1194.4.” By referencing this, OCR seeks to allow the definition for electronic and information technology to be updated and changed with the new Section 508 regulations.
It is worth noting that covered entities are prohibited from using “marketing practices or benefit designs” that discriminate on the basis of disability (45 CFR §92.207). SSB views this requirement as effectively expanding digital accessibility requirements to the marketing activities associated with plans.
In addition to the digital accessibility requirements, entities should be aware that the Section 1557 regulations, as a whole, require that covered entities “with 15 or more employees (i) have a grievance procedure and (ii) a compliance coordinator. In addition, covered entities must post notices of nondiscrimination to relevant public facing systems” (81 FR 31443).
The effective date of the rule was July 18th, 2016. As of that date, compliance is required with all of the information and communication technology requirements present in the rulemaking.
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