Disclaimer
The information presented in any of the Demand Our Access podcast
episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.
Introduction
In this episode I will be covering the lawsuit threatening Section 504 of the Rehabilitation Act of 1973 (Section 504).
Sharing my Feelings
Usually, I try to avoid my personal feelings when I discuss the law as a part of Demand Our Access. In preparing this episode, I had an impossible time fully separating my feelings of anger and hurt from the material I’m presenting. Given the reality that if the states are successful all of us with disabilities will have significantly fewer civil rights, I’m hoping you can understand why some of my feelings and opinions have made their way into this material.
Before discussing Section 504 I will briefly describe the next episode and provide my contact information.
The Next Episode
The next live episode of the Demand Our Access podcast will take place on Saturday, March 15. In that episode, I will continue my revisited look at Title II of the Americans with Disabilities Act.
Questions and Comments
As always, I’m interested in hearing from you. Please provide any feedback by completing the contact form on the Demand Our Access website or by emailing me at Jonathan@DemandOurAccess.com.
The Threat to Section 504
Briefly Describing Section 504
So we all understand the potential magnitude of this lawsuit, I want to briefly describe Section 504’s history and what it covers.
As mentioned earlier, Section 504 is a section of the Rehabilitation Act of 1973, which was signed into law by President Richard Nixon. The regulations implementing Section 504 were not published by the Department of Health and Human Services until 1977, after the protests addressed in the documentary Crip Camp.
Simply put, Section 504 applies to programs of the federal government and programs receiving money from the federal government. This means that Section 504 currently provides legal protections to those of us with disabilities in all public programs offered by the federal government and all programs receiving any funding from the federal government.
For more information about Section 504, check out the episode titled Section 504 of the Rehabilitation Act of 1973.
Texas v. Becerra
On September 26, 2024, a group of 17 states led by Texas filed suit against the Department of Health and Human Services (HHS) in the Northern District of Texas. The currently named defendant in the suit is Xavior Becerra (the secretary of HHS during the Biden administration).
This is why the lawsuit is currently referred to as Texas v. Becerra. Note, the link to the complaint filed by the 17 states posted to the Demand Our Access website when this episode of the podcast
is posted goes to a reasonably accessible PDF on the Texas attorney general’s website.
Participating States
The 17 states participating in the lawsuit are as follows:
- Alabama
- Alaska
- Arkansas
- Florida
- Georgia
- Indiana
- Iowa
- Kansas
- Louisiana
- Missouri
- Montana
- Nebraska
- South Carolina
- South Dakota
- Texas
- Utah
- West Virginia
Things to Know About the Lawsuit
To, hopefully, not get too technical, I want to briefly cover the seven major aspects of the complaint filed by the 17 states. After briefly highlighting the important aspects of the complaint, I will delve into more specifics about some of them.
I have organized the list of seven things you currently need to know about the lawsuit in a way that, I hope, addresses questions in an order most of you may be thinking about them:
- In a status report filed with the court on February 19, the Department of Justice, which has not yet said how it will participate in the lawsuit, and the 17 states asked for a pause in the cases timeline.
- Despite previous reporting, all 17 states that initially joined the lawsuit are still participating.
- The lawsuit seeks to have Section 504 declared unconstitutional.
- The lawsuit wants the rules developed by the Biden administration to further codify how Section 504 applies to health care providers dismissed.
- A lot of the complaint mentions how the HHS rules will affect Medicaid.
- The complaint seeks to limit the so-called integration of those of us with disabilities into community programs.
- Much of the language in the complaint focuses on HHS’s determination that gender dysphoria is covered under Section 504 and that people with gender dysphporia are protected by Section 504.
The Unconstitutionality of Section 504
Since this is not an episode about constitutional law, I’m not going to dive deeply into constitutional arguments. Here, my goal is to provide a basic amount of education around the argument being made by the states that Section 504 is unconstitutional.
Here are things to know about the argument that Section 504 is unconstitutional:
- The state’s argument is based around the Constitution’s Spending Clause.
- The Spending Clause grants Congress permission to raise and spend money for the nation’s defense and general welfare.
- There are three primary arguments being advanced by the states for why Section 504 violates the Spending Clause:
- Section 504 fails to provide unambiguous conditions for states receiving federal funds
- Section 504’s broad application imposes conditions on federal funding unrelated to the original purpose of the funds
- Section 504 is coercive, as it compels states to choose between complying with its extensive requirements or forfeiting all federal funding
I can’t leave a discussion of the state’s argument that Section 504 is unconstitutional without highlighting the jeopardy our community faces from the second of the three arguments.
The second argument being advanced for the unconstitutionality of Section 504 is the most important. By arguing that applying Section 504 to programs that are not specifically designed to cover those of us with disabilities, the states are trying to ensure that, even if they can’t convince the courts to deem Section 504 unconstitutional, they may be able to restrict its application to only those programs specifically designed for those of us with disabilities. If they were to win this point, only programs, like rehabilitation services, would continue being covered by Section 504. Programs including Medicaid and public education would no longer be covered by Section 504.
The Biden Administration’s Rules on Health Care Providers and Accessibility
On May ninth, 2024, HHS’s Office of Civil Rights announced new rules designed to make health care more accessible to those of us with disabilities. Three of the more important provisions of the updated rules are as follows:
- Child welfare agencies cannot remove children from the custody of disabled parents without an individualized determination that the child is not safe in the parent(s) custody.
- Within certain limitations, the websites and mobile apps of health care providers must be accessible.
- Equipment used in the provision of health care services is to be accessible to people with disabilities.
If the 17 states win their case, the updated rules will be removed resulting in parents facing the loss of their children because of discrimination, people not being able to access accessible digital content, and people not having important medical exams and procedures because medical equipment is not accessible to them.
Medicaid
The states are arguing against the strengthened integration rules because of the ways they will affect Medicaid. In the simplest terms, the states are arguing against home-based health care services to be provided to people with disabilities who rely on Medicaid for their
health care. In their complaint, the states actually argue that Medicaid was constructed to favor institutionalization.
While there, sadly, may be truth in that argument, the provision of integrated health care services has been strong since the 1990s. In 1999, the Supreme Court in a case called Olmstead, supported the idea that services should be provided in the most integrated setting possible, with those certain limitations. So, plaintiffs are not only trying to have Section 504 declared unconstitutional, but they are trying to overturn nearly 26 years of Supreme Court rulings supporting the idea that services should be provided to those of us with disabilities in the most integrated setting possible.
Integration
Under the rules codified by Biden’s HHS in May of 2024, the government strengthened the integration provision under Section 504 as it applies to health care by indicating that recipients of federal money, including states, are required to provide services in settings that enable individuals with disabilities to interact with non-disabled persons to the fullest extent possible. The regulation explicitly prohibits actions that result in unnecessary segregation or pose a serious risk of such segregation. Examples of prohibited actions include policies that limit access to integrated settings, offering greater benefits in segregated environments, imposing more restrictive rules in integrated settings, or failing to provide community-based services, which could lead to institutionalization or a significant risk thereof.
There are two main arguments being made by the states against the strengthened integration rules:
- The states argue that requiring states to administer programs in the “most integrated setting appropriate” imposes obligations beyond what Congress intended in the original statute.
- The integration mandate infringes upon states’ rights. By compelling states to modify their programs and services to align with federal integration standards, the plaintiffs claim this mandate disrupts the balance of power between federal and state governments as outlined in the Constitution.
The two arguments being advanced by the states in opposition to strengthened integration rules are really troubling. If the courts strike down the notion that those of us with disabilities should be served in the most integrated setting possible, where is the end on that reversal? Would it just be limited to health care settings? Or will all provisions, like those guaranteeing disabled children the ability to be integrated in mainstream classrooms, also be eventually repealed?
Gender Dysphoria
Gender dysphoria is a psychological condition recognized in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR),
published by the American Psychiatric Association. It refers to significant distress or impairment caused by a mismatch between an individual’s gender identity (their internal sense of being male, female, or another gender) and their sex assigned at birth.
Obviously, a discussion of gender dysphoria is not at all related to what we are discussing here. I need to mention gender dysphoria here because of the sad reality that the 17 states are using HHS’s decision to consider gender dysphoria a disability as a justification to invalidate most of the civil rights those of us with disabilities have had for more than half a century. While I don’t doubt that the representatives of the 17 states disagree with the determination that gender dysphoria is a disability, I am personally offended by the idea that state governments are using gender dysphoria to rally support for the idea that Section 504 should be declared unconstitutional.
If you disagree with my argument that gender dysphoria is being used here to fire up the public and distract them from the real motivations of the states, don’t forget they could have sued to simply overturn the determination that gender dysphoria is a disability. They could have sued to overturn the rules announced by HHS in May of 2024. Instead of taking one of those more conservative approaches, the 17 states chose to try to have Section 504 declared unconstitutional and to get the courts to reverse themselves on the idea that those of us with disabilities should be fully integrated into society.
Following the Lawsuit
If you are interested in getting updates on the lawsuit, I encourage you to visit the page dedicated to it authored by the Disability Rights Education and Defense Fund (DREDF).
Conclusion
Thank you for listening to this episode of the Demand Our Access podcast. I very much appreciate your support.
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