Update: HHS OCR announced a one-year extension of the compliance deadline for its mobile application and web content accessibility requirements under Section 504 of the Rehabilitation Act of 1973. The new deadline is May 11, 2027, for recipients of HHS funding with 15 or more employees and May 10, 2028, for recipients with fewer than 15 employees. While this extension provides more time to implement necessary changes and meet accessibility standards, it also underscores the importance of ensuring that all required measures are fully in place by the revised timeline, as further delays are unlikely.

Covered entities should continue advancing their compliance efforts without interruption, particularly given that required changes (especially where third-party vendors are involved) can be complex, resource intensive, and require significant lead time to implement. We recommend using this additional time to address any remaining accessibility gaps well in advance of the deadlines. 

A US Department of Health and Human Services (HHS) Section 504 final rule imposes a May 2026 deadline on covered healthcare companies. Never before has a rule required all recipients of federal financial assistance – including private healthcare providers – to comply with digital accessibility standards for websites, mobile apps, and kiosks.

By creating a legal framework that was not previously available in the public accommodation context, this rule places heightened scrutiny on healthcare companies. As a result, noncompliance is likely to lead to greater litigation exposure and increased business risks.

Background

To promote access to healthcare for individuals with disabilities, HHS, through its Office for Civil Rights (OCR), published a final rule on May 9, 2024, creating various digital accessibility requirements under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 (ADA). HHS implemented these new requirements because it determined that many healthcare-related services are provided through websites and mobile applications that are not accessible to individuals with disabilities. Examples of these accessibility issues include images, graphics, and maps that cannot be read or understood by blind patients using screen readers, as well as videos that lack captions for individuals who are deaf or hard of hearing.

HHS’s 2024 rule applies digital accessibility standards to all facilities, programs, and activities that receive federal funds or financial assistance, or that are conducted by a federal agency. Federal financial assistance for entities receiving funds from HHS includes credits, subsidies, and insurance contracts, such as Medicare Parts A, C and D; Medicaid; Children’s Health Insurance Program; Temporary Assistance for Needy Families; HeadStart; Supplemental Nutrition Assistance Program; child welfare programs; and clinical research. Therefore, this rule will affect a wide range of healthcare facilities and entities that benefit from these programs, including hospitals, health clinics, dental and vision providers, long-term care facilities, and mental health treatment centers.

Website/mobile app accessibility and exceptions

The rule’s accessibility requirements apply to a healthcare company’s website and mobile applications, including those operated by third parties on the company’s behalf (e.g., electronic medical record vendors). Third-party tools, such as appointment schedulers, patient registration platforms, bill pay portals, and telehealth platforms must also comply with these requirements.

However, certain types of content are exempt from these requirements. The exceptions include:

• Archived web content.
• Preexisting conventional electronic documents.
• Content posted by a third party acting independently (i.e., not under any contractual, licensing, or other arrangement with the healthcare company).
• Individualized password-protected documents.
• Preexisting social media posts.

Although these exceptions may appear broad at first glance, their scope is limited in certain respects. For example, the exception for “archived web content” does not include older web content that remains in use for reasons other than reference, research, or recordkeeping; such content that is still widely and consistently used must comply with the rule’s accessibility requirements. Similarly, the exception for “preexisting conventional electronic documents” does not include any documents currently used to apply for, access, or participate in a company’s programs or activities.

If content falls under an applicable exception, a company may still be required under existing Section 504 obligations to make that content accessible if the company receives a specific request from an individual with a disability. An entity will not be deemed as violating the rule if it can demonstrate that noncompliance has only a minimal impact on the ability of an individual with a disability to access content in a manner that provides substantially equivalent timeliness, confidentiality, independence, and ease of use.

Making websites and mobile apps accessible through the provision of auxiliary aids and services constitutes providing an accommodation under the ADA. Accordingly, the requirement to do so may be subject to the ADA’s fundamental alteration and undue burden defenses.

Technical standard (WCAG 2.1)

To ensure website and mobile accessibility, the rule applies a widely used and recognized technical standard based on the Web Content Accessibility Guidelines (WCAG). Websites and mobile apps must comply with WCAG 2.1 Levels A and AA (WCAG 2.1 AA), which include extensive and highly technical criteria.

Companies may also conform with the rule’s requirements by complying with WCAG 2.2 AA or AAA standards (which became an official standard in October 2023) or by adopting an alternative standard that results in substantially equivalent or greater accessibility than WCAG 2.1 AA, which has now become the legal floor under this rule.

Kiosk accessibility requirements

The rule imposes accessibility requirements for healthcare programs and activities provided through kiosks. Kiosks are defined as self-service transaction machines designed for independent use by patients or program participants. Common examples include devices patients use on their own to check in, access services, or record vital signs.

Healthcare companies that use kiosks must avoid discrimination on the basis of disability in connection with participation in, or benefits provided through, kiosk-based programs and activities. To comply with these new requirements, healthcare companies can either use kiosks that are accessible to individuals with disabilities or implement alternative procedures to provide access without the use of a kiosk for those unable to use kiosks because of inaccessible features. Any alternative procedures must afford individuals with disabilities the same level of access, confidentiality, and convenience as those who use a kiosk. The rule’s fact sheet provides an illustrative example whereby a company with an inaccessible kiosk may need to offer direct assistance with registration at the front desk as an alternative accommodation for individuals with disabilities.

Timeframe for compliance

Healthcare companies must comply with the rule’s accessibility standards in accordance with the following timeframe:

• Small companies (fewer than 15 employees) must comply by May 10, 2027.
• Larger companies (15 or more employees) must comply by May 11, 2026.

Risks of noncompliance

Failure to comply with the rule may result in serious penalties such as loss of federal funding. OCR can investigate complaints and enforce compliance, conduct a compliance review without a complaint, or refer any complaint of noncompliance to the US Department of Justice to secure compliance with the rule through any other legally authorized means.

In addition to regulatory enforcement, the ADA creates opportunities for plaintiff lawyers to pursue individual claims against healthcare companies whose websites or mobile apps fail to comply with these accessibility standards. In the past year, plaintiffs have filed thousands of lawsuits in federal and state courts, claiming that private businesses have failed to comply with Title III of the ADA (which applies to places of public accommodation), even though no rules had set forth digital accessibility requirements for these private businesses. Trolling plaintiff attorneys can easily use website scanning technologies that identify lack of compliance with WCAG standards, thereby creating a significant litigation risk for healthcare companies that do not comply with the rule.

The rule may also create business risk for healthcare companies. For healthcare companies engaged in government contracts, noncompliance could hinder their ability to secure new contracts or disrupt the maintenance of existing ones.

Best practices

In light of this far-reaching rule and the growing trend of website accessibility litigation, healthcare companies should consider adopting the following best practices:

• Conduct an accessibility audit and identify any noncompliance with WCAG 2.1 AA standards across the company’s website, mobile apps, and patient portals.
• Regularly test website functionality against WCAG criteria using scanning technologies frequently used by plaintiff lawyers, such as WAVE or PowerMapper.
• Collaborate with internal/external technical teams to implement accessibility features and make any required changes.
• Train personnel on accessibility requirements and WCAG standards and incorporate accessibility workflows into the company’s content management system and quality assurance processes.
• Ensure that appropriate contractual arrangements are in place with vendors and that they are aware of the rule’s accessibility standards.
• Develop and publish an accessibility policy outlining the company’s accessibility practices.
• Assess and frequently reevaluate digital and kiosk accessibility practices and ensure any alternative procedures for kiosks afford equal access, convenience, and confidentiality for persons with disabilities.

For more information, please contact the authors or your regular McDermott Will & Schulte lawyer.

Over the past two months, the second Trump administration has shifted federal policies and priorities regarding abortion, in vitro fertilization (IVF), contraception, and other reproductive-health-related matters – and it is expected to continue to do so. In addition to the federal policy agenda, many developments related to reproductive health likely will continue to occur at the state level. The Dobbs decision shifted policymaking in these areas toward the states, and lawmakers and advocates have expressed their intentions to either adhere to or protect against the new administration’s policies and agenda items. This article discusses some of the major recent trends in women’s health and reproductive health, and what is likely to come next under the new administration.

The Trump Administration Will Continue to Weaken Biden-Era Policies That Protect Reproductive Health

The Hyde Amendment

During its first month, the second Trump administration signed several executive orders (EOs) and otherwise signaled its approach to certain reproductive health measures that were previously in place. For instance, in the first week of his presidency, US President Donald Trump signed an EO entitled “Enforcing the Hyde Amendment,” which called for an end to federal funding for elective abortions and revoked two previous EOs that permitted such funding. The EO charged the Office of Management and Budget with providing guidance around implementing the mandate. While the EO was not a surprise, it referred to the Hyde Amendment and “similar laws,” leaving some ambiguity in its scope and the way in which it will be implemented in practice (e.g., it could be used to target federal funds for abortion and perhaps related services by other federal agencies, such as the US Departments of Defense, Justice, and State). In response to this EO, federal agencies could revoke Biden-era policies and reinstate or expand upon Trump administrative policies. Such efforts may include recission of Biden-era regulations that authorized travel for reproductive-health-related needs for servicemembers and their families and permitted abortion services through the US Department of Veterans Affairs.

The Comstock Act

Although we have not seen activity in this respect to date, the new administration will likely rescind the Comstock Act Memo, which was published by the US Department of Justice (DOJ) Office of Legal Counsel. This memo was issued in December 2022 by the Biden administration following the Dobbs decision. The Comstock Act is a federal criminal statute enacted in 1873 that prohibits interstate mailing of obscene writings and any “article or thing designed, adapted, or intended for producing abortion.” Violations of the Comstock Act are subject to fines or imprisonment. The Comstock Act Memo sets forth the opinion of the DOJ Office of Legal Counsel that the Comstock Act does not prohibit mailing abortion-inducing medication unless the sender explicitly intends for it to be used unlawfully. If the new administration revokes this memo or attempts to apply the Comstock Act to the mailing of abortion-inducing medication (and, perhaps, any abortion-inducing implements, which could have even wider-reaching implications) regardless of intent, it could become very difficult for patients to obtain abortion-inducing medication. Such actions also could lead to complications related to the provision of such medications via the mail (and potentially in person, depending on the attempted interpretation). At the time of publication, the DOJ website still included the Comstock Act Memo, noting that 18 U.S.C. § 1461 does not prohibit the mailing of abortion-inducing medication when the sender does not intend for the recipient to use the drugs unlawfully.

The 2024 HIPAA Final Rule on Access to Reproductive Health Records and Related State Activity

In 2024, the US Department of Health and Human Services Office for Civil Rights (OCR) published a Health Insurance Portability and Accountability Act (HIPAA) final rule to support reproductive healthcare privacy (2024 final rule). The 2024 final rule prohibits a covered entity or business associate from disclosing protected health information (PHI) for conducting an investigation into or imposing liability on any person for seeking, obtaining, providing, or facilitating reproductive healthcare where the reproductive healthcare is lawful. The 2024 final rule also prohibits disclosure of PHI to identify any person for the purpose of conducting an investigation or imposing liability. The enforcement mechanism of the 2024 final rule includes an attestation component under which a requesting party must certify that the use of the PHI is not prohibited when requested for health oversight activities, judicial or administrative proceedings, law enforcement purposes, or disclosures to coroners and medical examiners under 42 C.F.R. § 164.512. The Trump administration likely will not enforce (and may reverse) protections around reproductive health data under the 2024 final rule, which would leave a bigger gap for the states to potentially fill, as evidenced by the EO regarding enforcement of the Hyde Amendment and rollback of other Biden-era reproductive health protections.

In response to increased scrutiny of reproductive healthcare, several states have enacted laws protecting healthcare providers, patients, and others involved in providing or receiving reproductive healthcare. Although these laws vary from state to state, they generally prohibit disclosure of data and other information related to reproductive healthcare that was lawfully obtained by a patient and provided by a healthcare provider. These laws can provide a certain level of comfort to providers that provide care to patients who travel across state lines to receive care that may be unavailable to them in their home state but is accessible and lawfully provided in another state. States that do not have such laws may seek to enact similar protections under the new administration as federal protections become less certain, particularly if the layer of protection afforded by the 2024 final rule is revoked or otherwise diminished.

Abortion Policy Will Continue to Be Largely Dictated By States and May Expand Into New Areas of Focus

Following the Dobbs decision, many states quickly took action to enshrine abortion protections in their laws and constitutions. Some states, such as Michigan, moved to overturn old, unenforced abortion bans on their books. Michigan further implemented laws, executive actions, and eventually a ballot measure to amend its state constitution. This trend has continued; in the November 2024 presidential election, seven states passed ballot measures to protect abortion access. However, the 2024 election also marked the first three abortion protection ballot referendums that failed to pass. Voters in South Dakota and Nebraska rejected proposed constitutional amendments, and a measure in Florida received only 57% of the vote where a 60% majority was required.

In the years since Dobbs, new laws and court cases have largely sorted the states into two categories: states that are more protective and states that are more restrictive regarding abortion. However, the law remains unsettled in a few states, such as Georgia and Wisconsin, where pending court cases, legislative action, and gubernatorial executive action may result in different outcomes. In the 2024 election, Missouri voters passed a ballot initiative to overturn the state’s strict ban on abortion and enshrine reproductive rights in the state constitution, effectively switching the state from more restrictive to more protective. More constitutional ballot measures could come in states such as Pennsylvania, New Mexico, Virginia, and New Hampshire, where abortion rights are currently supported under state law but not enshrined in state constitutions. Abortion advocates may also focus on Iowa, South Carolina, and Florida, where recent court decisions have largely settled the law, but further litigation is possible. Restrictive states also continue to legislate additional restrictions on access to abortion.

The majority of states can be expected to continue on their current trajectory: more protective states may continue to enact abortion protections, and more restrictive states may continue to enforce existing bans and expand prohibitions. In 2025, the focus of both protective and restrictive laws likely will continue to expand. The initial wave of post-Dobbs policymaking primarily focused on a healthcare provider’s ability to perform an abortion and a patient’s right to receive an abortion. New laws and proposals now focus on topics such as assisting others in obtaining an abortion, telehealth prescribing of abortion medications, abortion funding, abortion rights of minors, and patient data privacy.

Trump administration policies and initiatives may impact more protective states’ abilities to provide abortion services. For instance, if the Comstock Act Memo is revoked, abortion-inducing medication may become scarce or difficult to obtain through the mail, even from a provider in a protective state to a patient in another protective state. If interpreted even more broadly by the administration, the Comstock Act could serve as a catalyst for a national abortion ban, which would almost certainly face legal challenges. While the Trump administration has not yet asked Congress for a national abortion ban, the EO that Trump signed recognizing two sexes includes personhood language regarding life beginning “at conception,” signaling that additional changes may be proposed at both the federal and state policy levels regarding fetal personhood and attendant rights. Such changes would likely result in legal challenges in federal and state courts.

IVF Services Will Continue to Expand But May Face Friction With Abortion Prohibitions and Certain Trump Administration Priorities

State abortion laws have somewhat solidified following Dobbs, but many laws remain unclear as to their impact on IVF providers. Many states have abortion prohibitions that predate IVF, some of which define “unborn child” from the moment of fertilization or conception. Other laws are ambiguous but contain language that arguably protects a fetus at any stage of development. Since Dobbs, state attorneys general in Arkansas, Oklahoma, Wisconsin, and other states have indicated that they will not pursue IVF providers using state abortion bans, and the Trump administration has issued an EO calling for expanded access to IVF. However, the state-level laws remain ambiguous, and there is a risk that courts may interpret such laws to apply to embryos or otherwise impact IVF access. Moreover, the EO raising the issue of fetal personhood may create friction for efforts to expand access to IVF.

In February 2024, the Alabama Supreme Court became the first state supreme court to definitively rule that “unborn children” includes cryogenically frozen IVF embryos. The court held an IVF clinic liable under the state’s wrongful death statute after an incident in which frozen IVF embryos were destroyed. The decision initially caused several IVF providers in the state to pause services until two weeks later, when the legislature passed a specific exception to the statute for IVF providers. Even though the status quo was quickly restored, both providers and patients were significantly impacted by the period of uncertainty. In 2025 and beyond, other states could face similar test cases. In response to public support for reproductive technology, some restrictive states have proposed legislation to address, for example, the use of assistive reproductive technology and selective reduction.

At the same time, insurance coverage for IVF and other fertility treatments has expanded and will likely continue to do so in 2025. Approximately 22 states now mandate that insurance plans provide some combination of fertility benefits, fertility preservation, and coverage for a number of IVF cycles. After July 1, 2025, all large employers in California must provide insurance coverage for fertility treatments, including coverage for unlimited embryo transfers and up to three retrievals. 2025 will also bring expanded IVF coverage options for federal employee insurance plans.

The Right to Contraception Will Remain Vulnerable to State Lawmaking and Court Challenges

Although the Dobbs majority opinion states that the “decision concerns the constitutional right to abortion and no other right,” and that “nothing in [the Dobbs] opinion should be understood to cast doubt on precedents that do not concern abortion,” doubt remains as to other women’s health rights. In his concurrence in Dobbs, Justice Clarence Thomas expressed interest in revisiting prior Supreme Court of the United States decisions upholding rights other than the right to abortion, such as the right to contraception upheld in Griswold v. Connecticut.

In response to the Thomas concurrence, the federal Right to Contraception Act was introduced. The act would have enshrined a person’s statutory right to contraception and a healthcare provider’s right to provide contraception. The act passed the US House of Representatives, but the US Senate version was unable to overcome a filibuster in June 2024. Federal efforts to protect the right to contraception are unlikely to pass in the new Congress.

Although federal action is unlikely, certain states have already protected the right to contraception under state law. Approximately 15 states and the District of Columbia currently have some form of protection for the right to contraception either by statute or under the respective state’s constitution. Under the new administration, state legislative action likely will increase with respect to the right to access contraception. Certain states with restrictive abortion policies, such as South Carolina, have proposed modifications to their abortion restrictions to explicitly protect the use of contraceptives.

What Steps Should Stakeholder Consider Taking?

Any company whose services touch on reproductive health or women’s health should engage in a risk assessment of their business and the ways in which the Trump administration may affect their ability to operate without complications. Although the first two months of EOs and other actions from the administration have not drastically altered the landscape for reproductive health across the country, access to reproductive and women’s health is likely to evolve over the next four years. We are closely monitoring these developments and will continue to forecast the ways in which this could impact stakeholders in the industry.