The Section 1557 regulations do not require conformance to a specific standard such as the Web Content Accessibility Guidelines (WCAG) 2.0 AA requirements. HHS contemplated doing so in the creation of the regulation but “OCR has decided not to adopt specific accessibility standards at this time” (81 FR 31426). While the HHS does not require conformance to a particular set of standards, the office “strongly encourages covered entities that offer health programs and activities through electronic and information technology to consider such standards [WCAG 2.0 and Section 508] as they take steps to ensure that those programs and activities comply with requirements of this regulation” (81 FR 31426)
Declining to state a particular technical standard for conformance but still strongly encouraging its use is similar to the approach in rulemaking of the U.S. Federal Communication Commission (FCC) under the 21st Century Communications and Video Accessibility Act (CVAA). Under that act, the FCC was barred from defining a specific technical requirement but did indicate that conformance to a relevant technical standard would likely provide a high degree of accessibility. In the same vein, HHS indicates that conformance with those standards is likely a needed requirement for meeting the requirements of the regulation. SSB’s experience with companies implementing digital accessibility requirements would wholly bear this out. Conformance to a well-recognized digital accessibility technical standard—almost always WCAG 2.0 AA—is strongly correlated with actual accessibility as well as providing a strong degree of defensibility to the implementing organization.
Finally, the OCR does state that “Due to the increasing importance of electronic and information technology in health care and health insurance coverage, OCR will continue to closely monitor this area, including developments in the standards developed by the Department of Justice and the Access Board” (81 FR 31426). Clearly OCR views this as an open issue and should the need for an explicit reference to an implementing technical standard grow the issue can be revisited. More likely, given the already overlapping coverage between Section 1557 and other civil rights requirements, it is likely that other more developed rulemakings in digital accessibility that cite specific technical standards will supersede the implicit requirements of Section 1557.
While the regulation and rulemaking text declines to specify a technical standard, the regulation and rulemaking text does clearly require that the system be functionally usable by people with disabilities to conform. This is further clarified by OCR directly: “a covered entity’s electronic and information technology must be functional as necessary to ensure that an individual with a disability has equal access to a covered entity’s health program and activity” (81 FR 31427). In SSB’s view, this requires that systems be able to demonstrate both technical conformance and a minimum level of functional use by people with disabilities to safely be deemed compliant. This aligns with our long standing interpretation of similar requirements in other accessibility standards and regulations. This does, however, remove any concept of “safe harbor” associated with pure technical conformance of a system with a digital accessibility development standard.
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