[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Proposed Rules]
[Pages 2183-2195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00553]
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DEPARTMENT OF JUSTICE
28 CFR Part 35
[Docket Number CRT 143 AG Order No. 5852-2024]
RIN 1190-AA78
Nondiscrimination on the Basis of Disability; Accessibility of
Medical Diagnostic Equipment of State and Local Government Entities
AGENCY: Civil Rights Division, Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Justice (``Department'') is proposing to
revise the regulations implementing title II of the Americans with
Disabilities Act (``ADA'') to establish specific requirements,
including the adoption of specific technical standards and scoping
requirements, for making accessible to the public the services,
programs, and activities offered by State and local governments through
their Medical Diagnostic Equipment (``MDE'').
DATES: All comments must be submitted on or before February 12, 2024.
Commenters should be aware that the electronic Federal Docket
Management System (``FDMS'') will accept comments submitted prior to
midnight Eastern Time on the last day of the comment period. Comments
received after the close of the comment period are highly disfavored
and will be marked ``late.'' The Department is not required to consider
late comments.
ADDRESSES: You may submit comments, identified by RIN 1190-AA78, by any
one of the following methods:
Federal eRulemaking website: https://www.regulations.gov.
Follow the website's instructions for submitting comments.
Overnight, courier, or hand delivery: Disability Rights
Section, Civil Rights Division, U.S. Department of Justice, 150 M St.
NE, 9th Floor, Washington, DC 20002.
FOR FURTHER INFORMATION CONTACT: Rebecca B. Bond, Chief, Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, at
(202) 307-0663 (voice or TTY). This is not a toll-free number.
Information may also be obtained from the Department's toll-free ADA
Information Line at (800) 514-0301 (voice) or (833) 610-1264 (TTY). You
may obtain copies of this notice of proposed rulemaking (``NPRM'') in
an alternative format by calling the ADA Information Line at (800) 514-
0301 (voice) or (833) 610-1264 (TTY). A link to this NPRM is also
available on https://www.ada.gov.
Electronic Submission of Comments and Posting of Public Comments
Interested persons are invited to participate in this rulemaking by
submitting written comments on all aspects of this rule via one of the
methods and by the deadline stated above. When submitting comments,
please include ``RIN 1190-AA78'' in the subject field. The Department
also invites comments that relate to the economic, environmental, or
federalism effects that might result from this rule. Comments that will
provide the most assistance to the Department in developing this rule
will reference a specific portion of the rule or respond to a specific
question, explain the reason for any recommended change, and include
data, information, or authority that support such recommended change.
Please note that all comments received are considered part of the
public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifiable
information (``PII'') (such as your name and address). Interested
persons are not required to submit their PII in order to comment on
this rule. However, any PII that is submitted is subject to being
posted to the publicly accessible https://www.regulations.gov site
without redaction.
Confidential business information clearly identified as such in the
first paragraph of the comment will not be placed in the public docket
file.
The Department may withhold from public viewing information
provided in comments that it determines may impact the privacy of an
individual or is offensive. For additional information, please read the
Privacy Act notice that is available via the link in the footer of
https://www.regulations.gov. To inspect the agency's public docket file
in person, you must make an appointment with the agency. Please see the
FOR FURTHER INFORMATION CONTACT paragraph above for agency contact
information.
SUPPLEMENTARY INFORMATION
I. Executive Summary
In this NPRM, the Department is proposing to revise its title II
ADA regulations, 28 CFR part 35, to adopt the standards for accessible
MDE issued by the Architectural and Transportation Barriers Compliance
Board (``Access Board''), 36 CFR part 1195, app. (``MDE Standards'').
The Access Board issued the MDE Standards under section 510 of the
Rehabilitation Act, 29 U.S.C. 794f. The Department is proposing to
adopt specific technical standards and scoping requirements under the
ADA to ensure that MDE used by public entities to offer services,
programs, and activities at places such as hospitals and other health
care facilities is accessible to individuals with disabilities. MDE
includes things like medical examination tables, weight scales, dental
chairs, and radiological diagnostic equipment. Without accessible MDE,
individuals with disabilities may not be afforded an equal opportunity
to receive medical care, including routine examinations, which could
have serious implications for their health. A lack of accessible MDE
may also undermine the quality of care received by individuals with
disabilities, ``leading to delayed and incomplete care, missed
diagnoses, exacerbation of the original disability, and increases in
the likelihood of the development of secondary conditions.'' \1\ For
instance, patients
[[Page 2184]]
with disabilities have had to forgo Pap smears because they could not
safely transfer from their wheelchairs to a fixed-height exam table.\2\
Similarly, inaccessible mammography machines have contributed to low
breast cancer screening rates for patients with disabilities.\3\
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\1\ Nat'l Council on Disability, Enforceable Accessible Medical
Equipment Standards: A Necessary Means to Address the Health Care
Needs of People with Mobility Disabilities 7 (May 20, 2021), https://ncd.gov/sites/default/files/Documents/NCD_Medical_Equipment_Report_508.pdf (``NCD Report'') [https://perma.cc/6W4U-TVEX].
\2\ See id. at 17.
\3\ See id. at 18.
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Section 510 requires the Access Board to promulgate regulatory
standards setting forth minimum technical criteria for MDE used in
physicians' offices, clinics, emergency rooms, hospitals, and other
medical settings.\4\ Under the statute, the standards must ensure that
such equipment is accessible to, and usable by, individuals with
accessibility needs, which include people with disabilities, and must
allow independent entry to, use of, and exit from the equipment by such
individuals to the maximum extent possible. Section 510 does not give
the Access Board authority to enforce these standards.\5\ Compliance
with the standards is mandatory only if an enforcing authority adopts
the standards as mandatory for entities subject to its jurisdiction.\6\
In this NPRM, the Department proposes to adopt the MDE Standards under
title II of the ADA.
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\4\ 29 U.S.C. 794f(a).
\5\ See id. at 794f.
\6\ See 36 CFR 1195.1 (``Other agencies, referred to as an
enforcing authority in the standards, may adopt the standards as
mandatory requirements for entities subject to their
jurisdiction.''); 36 CFR pt. 1195, app., sec. M102.1 (stating that
enforcing authorities may include the Department of Justice).
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II. Background
A. Statutory and Rulemaking Overview
Title II of the ADA protects qualified persons with disabilities
from discrimination on the basis of disability in services, programs,
and activities provided by State and local government entities. 42
U.S.C. 12132.
The ADA authorizes the Attorney General to promulgate regulations
to carry out the provisions of title II, with the exception of certain
discrete transportation provisions.\7\ The ADA also authorizes the
Attorney General to promulgate regulations to carry out the provisions
of title III, which focuses on public accommodations.\8\ In 1991, the
Department issued its final rules implementing titles II and III, which
were codified at 28 CFR part 35 (title II) and part 36 (title III) and
adopted the ADA Standards for Accessible Design.\9\
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\7\ 42 U.S.C. 12134.
\8\ Id. 12186(b).
\9\ 56 FR 35694 (July 26, 1991); 56 FR 35544 (July 26, 1991).
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In 2004, the Department published an advance notice of proposed
rulemaking (``2004 ANPRM'') to begin the process of updating the 1991
regulations and to adopt revised ADA Standards based on the relevant
parts of the Access Board's 2004 ADA/Architectural Barriers Act
Accessibility Guidelines (``2004 ADA/ABA Guidelines'').\10\ The 2004
ANPRM asked for public comment on a range of issues not specifically
addressed in the ADA regulations, including coverage of movable or
portable equipment and furniture.\11\ The Department subsequently
issued an NPRM in 2008.\12\ Although public comments in response to the
ANPRM had supported the promulgation of specific accessibility
standards for equipment and furniture, the Department's 2008 NPRM
announced its decision not to address equipment and furniture at that
time.\13\ Instead, the Department continued its approach of requiring
covered entities to provide accessible equipment and furniture as
needed to comply with the ADA's general nondiscrimination requirements
under the Department's existing regulations.
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\10\ 69 FR 58768 (Sept. 30, 2004); see also 69 FR 44084 (July
23, 2004).
\11\ 69 FR at 58774-75.
\12\ 73 FR 34466 (June 17, 2008).
\13\ Id. at 34474-75.
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On July 26, 2010, the Department announced its plan to issue final
rules updating its title II and III regulations and adopting standards
consistent with 2004 ADA/ABA Guidelines and the requirements contained
in 28 CFR 35.151, naming them the 2010 ADA Standards for Accessible
Design (``2010 ADA Standards'').\14\ On that same day, the Department
issued an ANPRM to consider possible changes to requirements under the
ADA to ensure that equipment and furniture, including MDE, used in
services, programs, and activities provided by State and local
governments and public accommodations, are accessible to people with
disabilities.\15\ The Department subsequently bifurcated the rulemaking
considered in the 2010 ANPRM with the intent to address the
accessibility requirements for MDE in a separate rulemaking.\16\
However, in December 2017, the Department withdrew the 2010 ANPRM to
reevaluate whether the imposition of specific regulatory standards for
the accessibility of non-fixed equipment and furniture was necessary
and appropriate.\17\
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\14\ See U.S. Dep't of Just., Justice Department's 2010 ADA
Standards for Accessible Design Go into Effect (Mar. 15, 2012),
https://www.justice.gov/opa/pr/justice-department-s-2010-ada-standards-accessible-design-go-effect [https://perma.cc/52UB-WRR4].
These final rules were published on September 15, 2010. See 75 FR
56164 (Sept. 15, 2010); 75 FR 56236 (Sept. 15, 2010).
\15\ 75 FR 43452 (July 26, 2010).
\16\ See, Off. of Mgmt. & Budget, Off. of Info. and Regul.
Affs., Unified Agenda of Federal Regulatory and Deregulatory Actions
(Fall 2011), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201110&RIN=1190-AA66 [https://perma.cc/D6TE-RUHR].
\17\ 82 FR 60932 (Dec. 26, 2017).
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In 2021, the Department indicated its plan to issue an ANPRM on
possible revisions to its ADA regulations to ensure the accessibility
of equipment and furniture in public entities' and public
accommodations' programs and services.\18\ Subsequently, in 2022, the
Department decided to bifurcate this rulemaking and announced that it
planned to publish a separate ANPRM that solely addresses the
accessibility of MDE under both title II and title III.\19\ The
Department has since decided to proceed with its MDE rulemaking under
title II through an NPRM, rather than first issuing an ANPRM. The
Department has received complaints indicating that more specific
technical guidance would help give covered entities and individuals
with disabilities more clarity about existing obligations and rights
concerning the accessibility of MDE under title II.
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\18\ See Off. of Mgmt. & Budget, Off. of Info. and Regul. Affs.,
Unified Agenda of Federal Regulatory and Deregulatory Actions (Fall
2021), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1190-AA76 [https://perma.cc/D6TE-RUHR].
\19\ See Off. of Mgmt. & Budget, Off. of Info. and Regul. Affs.,
Unified Agenda of Federal Regulatory and Deregulatory Actions
(Spring 2022), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202204&RIN=1190-AA78 [https://perma.cc/8BJ3-RYYY] (explaining that ``[t]he Department previously announced that
it intends to issue an ANPRM, titled Nondiscrimination on the Basis
of Disability by State and Local Governments and Places of Public
Accommodation; Equipment and Furniture (RIN 1190-AA76) addressing
possible revisions to its ADA regulations to ensure the
accessibility of equipment and furniture generally. However, the
Department has decided to publish a separate ANPRM that solely
addresses the accessibility of medical diagnostic equipment (MDE)
under titles II and III of the ADA, given the specialized nature of
MDE.'').
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The Department is coordinating its publication of this proposed
rule with the Department of Health and Human Services (``HHS''), which
issued an NPRM under section 504 of the Rehabilitation Act of 1973, 29
U.S.C. 794, that addresses the accessibility of MDE for recipients of
Federal financial assistance.\20\ Title II is modeled on
[[Page 2185]]
section 504,\21\ and title II and section 504 are generally understood
to impose similar requirements, given the similar language employed in
the ADA and the Rehabilitation Act.\22\ The legislative history of the
ADA makes clear that title II was intended to extend the requirements
of section 504 to apply to all State and local governments, regardless
of whether they receive Federal funding, demonstrating Congress's
intent that title II and section 504 be interpreted consistently.\23\
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\20\ 88 FR 63392 (Sept. 14, 2023).
\21\ See, e.g., H.R. Rep. No. 101-485(II), at 84 (1990).
\22\ See, e.g., 42 U.S.C. 12201(a).
\23\ See H. Rep. No. 101-485(II), at 84 (1990).
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The legislative history of the Rehabilitation Act Amendments of
1992 \24\ states that the revisions to the Rehabilitation Act's
findings, purpose, and policy provisions are ``a reaffirmation of the
precepts of the Americans with Disabilities Act,'' \25\ and that these
principles are intended to guide the Rehabilitation Act's policies,
practices, and procedures.\26\ Further, courts interpret the ADA and
section 504 consistently.\27\ Thus, the Department believes there is
and should be parity between the relevant provisions of title II and
section 504.
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\24\ Public Law 102-569 (1992).
\25\ S. Rep. No. 102-357, at 14 (1992).
\26\ See id.; see also H.R. Rep. No. 102-822, at 81 (1992).
\27\ See, e.g., Smith v. Harris Cnty., 956 F.3d 311, 317 (5th
Cir. 2020); K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725
F.3d 1088, 1098 (9th Cir. 2013).
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Given the relationship between title II and section 504 and
congressional intent that the two disability rights laws be interpreted
consistently, both Departments are proceeding with rulemakings that
provide the same requirements, one for public entities subject to title
II of the ADA and the other for recipients of Federal financial
assistance from HHS.
The Department will continue to consider the remaining issues
concerning MDE under title III as well as equipment and furniture under
both titles, although those issues are not the subjects of rulemaking
at this time.
B. Legal Foundation for Accessible MDE
This NPRM applies to health care services, programs, and activities
that public entities offer through or with the use of MDE. Title II of
the ADA prohibits discrimination on the basis of disability in all
services, programs, and activities offered by public entities.\28\
Through this mandate and the Department's implementing regulations, the
ADA requires public entities to provide accessible equipment and
furniture as necessary to comply with title II's reasonable
modification, effective communication, and program accessibility
requirements. However, the Department has never adopted specific
technical standards that address what constitutes accessible MDE.
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\28\ 42 U.S.C. 12132.
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Under title II, public entities must provide reasonable
modifications when necessary to avoid discrimination on the basis of
disability unless those modifications would fundamentally alter the
nature of the public entity's service, program, or activity.\29\ Title
II entities also must ensure that communications with individuals with
disabilities are as effective as communications with others, including
through the provision of appropriate auxiliary aids and services.\30\
These auxiliary aids include the ``[a]cquisition or modification of
equipment or devices.'' \31\
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\29\ 28 CFR 35.130(b)(7)(i).
\30\ See 28 CFR 35.160.
\31\ 28 CFR 35.104; see also 36 CFR pt. 1195, app., sec. M306.1
(setting forth technical standards for MDE that communicates
instructions or other information to the patient).
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Under the program accessibility requirement of title II, no
qualified individual with a disability shall, because a public entity's
facilities are inaccessible to or unusable by individuals with
disabilities, be excluded from participation in, or be denied the
benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any public entity.\32\ A public
entity must operate each service, program, or activity so that, when
viewed in its entirety, the service, program, or activity is readily
accessible to and usable by persons with disabilities, subject to a
defense of fundamental alteration or undue burden.\33\ A public entity
may comply with the program accessibility requirement through such
means as redesign or acquisition of equipment.\34\
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\32\ Id. 35.149.
\33\ Id. 35.150(a).
\34\ Id. 35.150(b)(1).
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C. Overview of Access Board's MDE Standards
In implementing the mandate set forth in section 510 of the
Rehabilitation Act to promulgate technical standards for accessible
MDE, the Access Board received input from various stakeholders through
a multi-year deliberative process and published the MDE Standards on
January 9, 2017.\35\ The Access Board divides the MDE Standards into
four separate technical criteria based on how the equipment is used by
the patient: (1) supine, prone, or side-lying position; (2) seated
position; (3) seated in a wheelchair; and (4) standing position.\36\
For each category of use, the MDE Standards provide for independent
entry to, use of, and exit from the equipment by patients with
disabilities to the maximum extent possible.
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\35\ 82 FR 2810 (Jan. 9, 2017).
\36\ 36 CFR pt. 1195, app., sec. M301-04.
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The technical requirements for MDE used by patients in the supine,
prone, or side-lying position (such as examination tables) and MDE used
by patients in the seated position (such as examination chairs) focus
on ensuring that the patient can transfer from a mobility device onto
the MDE.\37\ The other two categories set forth the necessary technical
requirements to allow the patient to use the MDE while seated in their
wheelchair (such as during a mammogram) or while standing (such as on a
weight scale), respectively.\38\ The MDE Standards also include
technical criteria for supports, including for transfer, standing, leg,
head, and back supports; instructions or other information communicated
to patients through the equipment; and operable parts used by
patients.\39\
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\37\ See id. sec. M301-02.
\38\ See id. sec. M303-04.
\39\ See id. sec. M305-07.
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The Access Board's MDE Standards currently contain a temporary
standard governing the minimum low height requirement for transfers
from diagnostic equipment used by patients in a supine, prone, side-
lying, or seated position.\40\ Specifically, the temporary standard
provides for a minimum low transfer height requirement of 17 inches to
19 inches. The temporary nature of this standard was due to
insufficient data on the extent to which, and how many, individuals
would benefit from a transfer height lower than 19 inches. While this
temporary standard is in effect, any low transfer height between 17 and
19 inches will meet the MDE Standards. Under a sunset provision, as
extended, this low height range remains in effect only until January
10, 2025.\41\
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\40\ See id. sec. M301.2.1, 302.2.1.
\41\ See id. sec. M301.2.2, 302.2.2; 87 FR 6037 (Feb. 3, 2022).
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On May 23, 2023, the Access Board issued an NPRM that proposes
removing the sunset provisions in the Board's existing MDE Standards
related to the low height specifications for transfer surfaces, and
replacing them with final specifications for the low transfer height of
medical diagnostic equipment used in the supine, prone, side-lying, and
seated positions.\42\ Following an extension, the comment period for
that
[[Page 2186]]
NPRM closed on August 31, 2023.\43\ After the Access Board analyzes the
comments that it receives, the Board will issue a final, updated
minimum low transfer height standard. After this new standard is
adopted, the Department will consider issuing a supplemental rulemaking
under title II proposing to adopt the updated standards.
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\42\ 88 FR 33056 (May 23, 2023).
\43\ 88 FR 50096 (Aug. 1, 2023).
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D. Need for the Adoption of MDE Standards
The accessibility of MDE is essential to providing equal access to
medical care to people with disabilities. In developing this proposed
subpart, the Department considered the well-documented barriers that
individuals with disabilities face when accessing MDE, as well as the
benefits for people with disabilities and health care workers alike of
using accessible MDE.\44\ The accessibility or inaccessibility of MDE
impacts a substantial population--according to an estimate by the
Centers for Disease Control and Prevention, approximately 61 million
adults live with a disability in the U.S., and 13.7 percent of those
individuals have a mobility disability with serious difficulty walking
or climbing stairs.\45\ According to a 2022 estimate by the U.S. Census
Bureau, over 44 million people with disabilities live outside of
institutional settings in the United States, and the most common
category of disability is mobility or ambulatory impairment.\46\
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\44\ Nat'l Council on Disability, The Current State of Health
Care for People with Disabilities (Sept. 30, 2009), https://files.eric.ed.gov/fulltext/ED507726.pdf [https://perma.cc/5FR5-DZU6]; see, e.g., Dep't of Health & Human Servs., Administration for
Community Living, Wheelchair-Accessible Medical Diagnostic
Equipment: Cutting Edge Technology, Cost-Effective for Health Care
Providers, and Consumer-Friendly (July 26, 2019), https://acl.gov/sites/default/files/Aging%20and%20Disability%20in%20America/MDE%20Fact%20Sheet%20Final.docx [https://perma.cc/GW83-62WW].
\45\ U.S. Dep't of Health & Human Servs., Ctrs. for Disease
Control & Prevention, Disability Impacts All of Us, https://www.cdc.gov/ncbddd/disabilityandhealth/documents/disabilities_impacts_all_of_us.pdf [https://perma.cc/AX9E-9WU3].
\46\ U.S. Census Bureau, American Community Survey, Disability
Characteristics, https://data.census.gov/cedsci/table?t=Disability&tid=ACSST1Y2019.S1810 [https://perma.cc/KX82-VMYD].
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While not all individuals with a mobility disability with serious
difficulty walking or climbing stairs or individuals with mobility or
ambulatory impairments will require accessible MDE, or benefit from it
to the same extent, significant portions of these populations will
benefit from accessible MDE. Further, a number of studies and reports
have shown that individuals with disabilities may be less likely to get
routine or preventative medical care than people without disabilities
because of barriers to accessing appropriate care through MDE.\47\ In
one case, a patient with a disability remained in his wheelchair for
the entirety of his annual physical exam, which consisted of his doctor
listening to his heart and lungs underneath his clothing, looking
inside his ears and throat, and then stating, ``I assume everything
below the waist is fine.'' \48\ In another case, a patient with a
disability could be transferred to a standard exam table, but extra
staff was needed to keep her from falling off the table since it did
not have any side rails. As a result of this and a number of other
frightening experiences, the patient avoided going to the doctor unless
she was very ill.\49\ Multiple studies have found that individuals with
certain disabilities face barriers to accessing MDE and are often
denied accessible MDE by their health care providers.\50\ Accessible
MDE is thus often critical to a public entity's ability to provide a
person with a disability equal access to, and opportunities to benefit
from, its health care services, programs, and activities.
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\47\ See, e.g., Anna Marrocco & Helene J. Krouse, Obstacles to
Preventive Care for Individuals with Disability: Implications for
Nurse Practitioners, 29 J. Am. Ass'n of Nurse Pract. 282, 289 (May
2017); U.S. Dep't of Health & Human Servs., Office of the Surgeon
Gen., The Surgeon General's Call to Action to Improve the Health and
Wellness of Persons with Disabilities (2005), https://www.ncbi.nlm.nih.gov/books/NBK44667/ [https://perma.cc/77DZ-WRM9];
NCD Report at 14.
\48\ NCD Report at 15.
\49\ Id. at 16-17.
\50\ See Anne Ordway et al., Health Care Access and the
Americans with Disabilities Act: A Mixed Methods Study, 14
Disability and Health J. 1, 2, 5 (2021) (stating that of 562 people
with disabilities surveyed, 27 percent had difficulty accessing exam
tables); see also Jennifer L. Wong et al., Identification of Targets
for Improving Access to Care in Persons with Long Term Physical
Disabilities, 12 Disability and Health J. 366, 369 (2019) (stating
that of the 462 people who needed a height-adjustable examination
table, 56 percent received it).
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In the over 30 years since the ADA was enacted, the Department, in
implementing and enforcing the ADA, has gained a better understanding
of the ongoing barriers posed by inaccessible MDE and the solutions
provided by accessible MDE. The Department has received numerous
complaints from patients with disabilities whose health care providers
have forgone the most basic of care--from performing a full body
examination to obtaining an accurate weight before administering
anesthesia--because of the lack of accessible MDE. In recognition of
the importance of accessible health care, the Department launched the
Barrier-Free Health Care Initiative, which, among other goals, sought
to advance physical access to medical care for people with
disabilities. As part of this initiative, the Department has entered
into numerous settlement agreements with health care providers that
have required the providers to purchase accessible MDE, including
patient lifts and examination and treatment equipment, for their
facilities.\51\ These settlement agreements, and a description of the
Barrier-Free Health Care Initiative, are available to the public at
https://www.ada.gov/barrierfreehealthcare.htm[https://perma.cc/9TT7-BCRN].
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\51\ See, e.g., Settlement Agreement between the United States
and Charlotte Radiology, P.A. (Aug. 13, 2018), https://archive.ada.gov/charlotte_radiology_sa.html [https://perma.cc/ZC5W-LV3M]; Settlement Agreement between the United States and Tufts
Medical Center (Feb. 28, 2020), https://archive.ada.gov/tufts_medical_ctr_sa.html [https://perma.cc/YQG3-ZDZC].
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The Department has also consistently provided information to
covered entities on how they can make their health care services,
programs, and activities accessible to individuals with mobility
disabilities. For example, the Department and the Department of Health
and Human Services jointly issued a technical assistance document on
medical care for people with mobility disabilities, addressing how
accessible MDE can be critical to ensure that people with disabilities
receive medical services equal to those received by people without
disabilities.\52\ In particular, the document explains that the
``[a]vailability of accessible medical equipment is an important part
of providing accessible medical care, and doctors and other providers
must ensure that medical equipment is not a barrier to individuals with
disabilities.'' \53\ The guidance also provides examples of accessible
medical equipment, including adjustable-height exam tables and chairs,
wheelchair-accessible scales, adjustable-height radiologic equipment,
portable floor and overhead track lifts, gurneys, and stretchers, and
it discusses how people with mobility disabilities use this equipment.
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\52\ See U.S. Dep't of Just., Civ. Rts. Div., Access to Medical
Care for Individuals with Mobility Disabilities, https://www.ada.gov/resources/medical-care-mobility/ [https://perma.cc/UH8Y-NZWL] (June 26, 2020).
\53\ Id.
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The Department recognizes that in addition to its efforts to
enforce and provide technical assistance on the ADA to ensure that
people with disabilities have equal access to medical care, providing
enforceable technical standards will help ensure clarity to
[[Page 2187]]
public entities on how to fulfill their existing obligations under
title II in their health care services, programs, and activities. The
COVID-19 pandemic had a devastating and disproportionate impact on
people with disabilities and underscored how dire the consequences may
be for those who lack adequate access to medical care and treatment. As
the National Council on Disability (NCD) Report on accessible medical
equipment standards notes, significant health care disparities for
persons with disabilities are due in part to the lack of physical
access to MDE, and ``[e]nsuring physical access to care through
accessible MDE is necessary to equitably provide medical care for all
people, and the need continues to grow.'' \54\ As a result of its
findings, NCD called upon the Department to revise its ADA regulations
to formally adopt the MDE Standards.\55\
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\54\ NCD Report at 14.
\55\ Id. at 52.
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Accordingly, the Department is proposing changes to its ADA
regulations that can help ensure that vital health care services,
programs, and activities are equally available to individuals with
disabilities. Specifically, the Department is considering adopting and
incorporating into its title II ADA regulations the specific technical
requirements for accessible MDE that are set forth in the Access
Board's MDE Standards.
III. Section-by-Section Analysis
This section details the Department's proposed changes to the title
II ADA regulations, including the reasoning behind the proposals, and
poses questions for public comment.
Sec. 35.104 Definitions
The Department proposes to revise 28 CFR 35.104 to add definitions
for the terms ``medical diagnostic equipment'' and ``Standards for
Accessible Medical Diagnostic Equipment.''
Medical Diagnostic Equipment
The Department proposes that the term ``medical diagnostic
equipment'' be defined consistently with the MDE Standards, as
``[e]quipment used in, or in conjunction with, medical settings by
health care providers for diagnostic purposes.'' This definition
includes the examples in 29 U.S.C. 794f, which states that the MDE
Standards shall ``set[ ] forth the minimum technical criteria for
medical diagnostic equipment used in (or in conjunction with)
physician's offices, clinics, emergency rooms, hospitals, and other
medical settings,'' and ``shall apply to equipment that includes
examination tables, examination chairs (including chairs used for eye
examinations or procedures, and dental examinations or procedures),
weight scales, mammography equipment, x-ray machines, and other
radiological equipment commonly used for diagnostic purposes by health
professionals.'' These examples are illustrative of types of MDE but
are not exhaustive.
Standards for Accessible Medical Diagnostic Equipment
The Department proposes that the term ``Standards for Accessible
Medical Diagnostic Equipment'' means the standards at 36 CFR part 1195,
promulgated by the Access Board under section 510 of the Rehabilitation
Act of 1973, as amended, found in the Appendix to 36 CFR part 1195.
Sec. 35.210 Requirements for Medical Diagnostic Equipment
This section provides general accessibility requirements for
services, programs, and activities that public entities provide through
or with the use of MDE. Public entities must ensure that their
services, programs, and activities offered through or with the use of
MDE are accessible to individuals with disabilities.
Under this general provision (barring an applicable limitation or
defense), a public entity that provides health care cannot deny
services that it would otherwise provide to a patient with a disability
because the provider lacks accessible MDE. A health care provider also
cannot require a patient with a disability to bring someone along with
them to help during an exam. A patient may choose to bring another
person such as a friend, family member, or personal care aide to an
appointment, but regardless, the health care provider may need to
provide reasonable assistance to enable the patient to receive medical
care.\56\ Such assistance may include helping a person who uses a
wheelchair to transfer from their wheelchair to the exam table or
diagnostic chair.\57\ The health care provider cannot require the
person accompanying the patient to assist.
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\56\ See 28 CFR 35.130(b)(7).
\57\ See U.S. Dep't of Just., Civ. Rts. Div., Access to Medical
Care for Individuals with Mobility Disabilities, https://www.ada.gov/resources/medical-care-mobility/ [https://perma.cc/UH8Y-NZWL] (June 26, 2020).
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Sec. 35.211 Newly Purchased, Leased, or Otherwise Acquired Medical
Diagnostic Equipment
For MDE that public entities purchase, lease, or otherwise acquire
more than 60 days after the publication of the final rule in the
Federal Register, the Department proposes to adopt an approach that
draws on the approach that the existing title II regulations applied to
new construction and alterations of buildings and facilities.\58\ The
Department would require that all MDE that a public entity purchases,
leases, or otherwise acquires after the rule's effective date must be
accessible, unless and until the proposed rule's scoping requirements,
set forth in more detail in Sec. 35.211(b), are satisfied.
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\58\ See generally 28 CFR 35.151.
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Issue 1: The Department seeks public comment on whether 60
days would be an appropriate amount of time for these requirements,
and, if 60 days would not be an appropriate amount of time, what the
appropriate amount of time would be.
As in the fixed or built-in environment, this rule is proposing
that the accessibility of MDE will be governed by a specific set of
design standards promulgated by the Access Board that sets forth
technical requirements for accessibility. So long as a public entity
has the amount of accessible MDE set forth in the scoping requirements
in Sec. 35.211(b), the public entity is not required to continue to
obtain accessible MDE when it purchases, leases, or otherwise acquires
MDE after the effective date. However, a public entity may choose to
acquire additional accessible MDE after it satisfies the scoping
requirements.
Sec. 35.211(a) Requirements for Newly Purchased, Leased, or Otherwise
Acquired Medical Diagnostic Equipment
Paragraph (a) would adopt the Access Board's MDE Standards as the
standard governing whether MDE is accessible and establish one of the
proposed rule's key requirements: that subject to applicable
limitations and defenses, all MDE that public entities purchase, lease,
or otherwise acquire after the effective date must meet the MDE
Standards unless and until the public entity already has a sufficient
amount of accessible MDE to satisfy the scoping requirements of the
proposed rule.
As explained above in more detail, the MDE Standards include
technical criteria for equipment that is used when patients are either
(1) in a supine, prone, or side-lying position; (2) in a seated
[[Page 2188]]
position; (3) in a wheelchair; or (4) in a standing position. They also
contain standards for supports, communication, and operable parts. In
addition, the MDE Standards also contain requirements for equipment to
be compatible with patient lifts where a patient would transfer under
positions (1) and (2) above.
Consistent with the language in 29 U.S.C. 794f(b), MDE covered
under this subpart includes examination tables, examination chairs
(including chairs used for eye examinations or procedures, and dental
examinations or procedures), weight scales, mammography equipment, x-
ray machines, and other radiological equipment commonly used for
diagnostic purposes by health professionals. This section covers
medical equipment used by health professionals for diagnostic purposes
even if it is also used for treatment purposes.
Given the many barriers to health care that people with
disabilities encounter due to inaccessible MDE, adopting the MDE
Standards will give many people with disabilities an equal opportunity
to participate in and benefit from health care services, programs, and
activities.
Sec. 35.211(b) Scoping
Paragraph (b) proposes scoping requirements for accessible MDE.
Accessibility standards generally contain scoping requirements (how
many accessible features are needed) and technical requirements (what
makes a particular feature accessible). For example, the 2010 ADA
Standards provide scoping requirements for how many toilet compartments
in a particular toilet room must be accessible and provide technical
requirements on what makes these toilet compartments accessible.\59\
The MDE Standards issued by the Access Board contain technical
requirements, but they do not specify scoping requirements. Rather, the
MDE Standards state that ``[t]he enforcing authority shall specify the
number and type of diagnostic equipment that are required to comply
with the MDE Standards.'' \60\ For the technical requirements to be
implemented and enforced effectively, it is necessary for the
Department to provide scoping requirements to specify how much
accessible MDE is needed for a public entity's health care service,
program, or activity to comply with the ADA.
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\59\ See 36 CFR pt. 1191, app. B, sec. 213.3.1.
\60\ 36 CFR pt. 1195, app., sec. M201.
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The scoping requirements that the Department proposes are based on
the requirements that the 2010 ADA Standards establish for accessible
patient sleeping rooms and parking in hospitals, rehabilitation
facilities, psychiatric facilities, detoxification facilities, and
outpatient physical therapy facilities.\61\ Because public entities
must comply with title II of the ADA, many public entities are likely
already familiar with these standards.
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\61\ See 36 CFR pt. 1191, app. B, secs. 208.2.2, 223.2.1,
223.2.2.
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According to the 2010 ADA Standards, licensed medical care
facilities and licensed long-term care facilities where the period of
stay exceeds 24 hours shall provide accessible patient or resident
sleeping rooms and disperse them proportionately by type of medical
specialty.\62\ Where sleeping rooms are altered or added, the sleeping
rooms being altered or added shall be made accessible until the minimum
number of accessible sleeping rooms is provided.\63\ Hospitals,
rehabilitation facilities, psychiatric facilities, and detoxification
facilities that do not specialize in treating conditions that affect
mobility shall have at least 10 percent of their patient sleeping
rooms, but no fewer than one, provide specific accessibility features
for patients with mobility disabilities.\64\ Hospitals, rehabilitation
facilities, psychiatric facilities, and detoxification facilities that
specialize in treating conditions that affect mobility must have 100
percent of their patient sleeping rooms provide specific accessibility
features for patients with mobility disabilities.\65\ In addition, at
least 20 percent of patient and visitor parking spaces at outpatient
physical therapy facilities and rehabilitation facilities specialized
in treating conditions that affect mobility must be accessible.\66\
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\62\ See 28 CFR 35.151(h); 36 CFR pt. 1191, app. B, sec. 223.1.
\63\ See 36 CFR pt. 1191, app. B, sec. 223.1.1.
\64\ See id. sec. 223.2.1.
\65\ See id. sec. 223.2.2.
\66\ See id. sec. 208.2.2.
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Issue 2: The Department seeks public comment on whether
and how to apply the existing scoping requirements for patient or
resident sleeping rooms or parking spaces in certain medical facilities
to MDE and on whether there are meaningful differences between patient
or resident sleeping rooms, accessible parking, and MDE that the
Department should consider when finalizing the scoping requirements.
Issue 3: The Department seeks public comment on whether
different scoping requirements should apply to different types of MDE
(e.g., requiring a higher percentage of accessible exam tables and
scales than accessible x-ray machines).
Proposed paragraphs (b)(1) to (3) lay out scoping requirements for
this section. Paragraph (b)(1) provides the general requirement for
physician's offices, clinics, emergency rooms, hospitals, outpatient
facilities, multi-use facilities, and other medical services, programs,
and activities that do not specialize in treating conditions that
affect mobility. When these entities use MDE to provide services,
programs, or activities, they must ensure that at least 10 percent, but
no fewer than one unit, of each type of equipment complies with the MDE
Standards. For example, a medical practice with 20 examination chairs
would be required to have two examination chairs (10 percent of the
total) that comply with the MDE Standards. In a medical practice with
five examination chairs, the practice would be required to have one
examination chair that complies with the MDE Standards (because every
entity covered by this provision must have no fewer than one unit of
each type of equipment that is accessible). If a dental practice has
one x-ray machine, that x-ray machine would be required to be
accessible.
Proposed paragraph (b)(2) provides the scoping requirement for
rehabilitation facilities that specialize in treating conditions that
affect mobility; outpatient physical therapy facilities; and other
medical services, programs, and activities that specialize in treating
conditions that affect mobility. This paragraph requires that at least
20 percent of each type of MDE used in these types of services,
programs, and activities, but no fewer than one unit of each type of
MDE, must comply with the MDE Standards. Because these facilities
specialize in treating patients who are likely to need accessible MDE,
it is reasonable for them to have more accessible MDE than is required
for the health care providers covered by paragraph (b)(1), who do not
have the same specialization. The Department considered whether to
require 100 percent of MDE in these programs to be accessible, like
section 223.2.2 of the 2010 ADA Standards for Accessible Design, which
requires that 100 percent of patient sleeping rooms in similar
facilities provide specific accessibility features for patients with
mobility disabilities. However, the Department is instead proposing a
scoping requirement analogous to section 208.2.2 of the 2010 ADA
Standards, which requires 20 percent of visitor and patient parking
spaces at such facilities to be accessible. The time-limited use of MDE
is more analogous to the use of
[[Page 2189]]
parking spaces at a rehabilitation facility than to the use of sleeping
rooms. As with parking spaces, several different patients with mobility
disabilities could use the same piece of MDE in a day, while patients
generally occupy a sleeping room for all or a significant part of the
day. Thus, the Department's proposed rule draws on the 2010 ADA
Standards' scoping requirements by requiring at least 20 percent (but
no fewer than one unit) of each type of equipment in use in facilities
that specialize in treating conditions that affect mobility to meet the
MDE Standards, and requiring at least 10 percent (but no fewer than one
unit) of each type of equipment in use in other facilities to meet the
MDE Standards.
Issue 4: Because more patients with disabilities may need
accessible MDE than need accessible parking, the Department seeks
public comment on whether the Department's suggested scoping
requirement of 20 percent is sufficient to meet the needs of persons
with disabilities.
Issue 5: The Department seeks public comment on any
burdens that this proposed requirement or a higher scoping requirement
might impose on public entities.
Paragraph (b)(3) addresses facilities or programs with multiple
departments, clinics, or specialties. The current title II ADA
regulation requires medical care facilities that do not specialize in
the treatment of conditions that affect mobility to disperse the
accessible patient sleeping rooms in a manner that is proportionate by
type of medical specialty.\67\ The proposed rule includes an analogous
dispersion requirement. In any facility or program that has multiple
departments, clinics, or specialties, where a service, program, or
activity utilizes MDE, the accessible MDE required by paragraphs (b)(1)
and (2) shall be dispersed proportionately across departments, clinics,
or specialties. For example, a hospital that is required to have five
accessible x-ray machines cannot place all the accessible x-ray
machines in the orthopedics department and none in the emergency
department. People with disabilities must have an opportunity to
benefit from each type of medical care provided by the public entity
that is equal to the opportunity provided to people without
disabilities.\68\ The proposed rule would not require public entities
to acquire additional MDE, beyond the amount specified in proposed
paragraphs (b)(1) and (2), to ensure that accessible MDE is available
in every department, clinic, and specialty. The Department believes
that this approach is consistent with many provisions of the 2010 ADA
Standards.\69\ Additionally, the Department believes that if the rule
were to require full dispersion across every department, clinic and
specialty, it could be difficult to determine whether the scoping
requirements have been satisfied. For example, a clinic may be part of
a department and also part of a specialty (or include providers with
multiple specialties), so calculating the percentages of accessible MDE
that each department, clinic, or specialty has could become complex.
However, the Department also recognizes that it is critically important
for people with disabilities to have access to all types of medical
care. Therefore, public entities would still be required to ensure that
all of their services, programs, and activities are accessible to and
usable by individuals with disabilities, regardless of whether a
specific department, clinic, or specialty would be required to acquire
accessible MDE under proposed paragraph (b)(3).
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\67\ 28 CFR 35.151(h). A similar dispersion requirement was not
necessary for medical care facilities that specialize in the
treatment of conditions that affect mobility, because 100 percent of
patient sleeping rooms in those facilities are required to be
accessible. See 36 CFR pt. 1191, app. B, sec. 223.2.2.
\68\ See 28 CFR 35.130(b)(ii), 35.150(a).
\69\ See, e.g., 36 CFR pt. 1191, app. B, secs. 221.2.3, 224.5,
225.3.1, 235.2.1. According to these sections, when the required
number of accessible elements has been provided, further dispersion
is not required.
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Issue 6: The Department seeks public comment on whether
the proposed approach to dispersion of accessible MDE is sufficient to
meet the needs of individuals with disabilities, including the need to
receive different types of specialized medical care.
Issue 7: The Department seeks public comment on whether
additional requirements should be added to ensure dispersion (e.g.,
requiring at least one accessible exam table and scale in each
department, clinic, or specialty, or requiring each department, clinic,
and specialty to have a certain percentage of accessible MDE).
Issue 8: The Department seeks information regarding:
(a) The extent to which accessible MDE can be moved or otherwise
shared between clinics or departments.
(b) The burdens that the rule's proposed approach to dispersion or
additional dispersion requirements may impose on public entities.
(c) The burdens that the rule's proposed approach to dispersion may
impose on people with disabilities e.g., increased wait times if
accessible MDE needs to be located and moved; embarrassment,
frustration, or impairment of treatment that may result if a patient
must go to a different part of a hospital or clinic to use accessible
MDE).
Issue 9: The Department seeks public comment on whether
higher, lower, or different scoping requirements than those proposed
should be established.
Issue 10: The Department seeks public comment on the
burden that the proposed scoping requirements would impose on public
entities.
Sec. 35.211(c) Requirements for Examination Tables and Weight Scales
Paragraph (c) sets forth specific requirements for examination
tables and weight scales. Proposed paragraph (c)(1) would require
public entities that use at least one examination table in their
service, program, or activity to purchase, lease, or otherwise acquire,
within two years after the publication of this part in final form, at
least one examination table that meets the requirements of the
Standards for Accessible MDE, unless the entity already has one in
place. Similarly, proposed paragraph (c)(2) requires public entities
that use at least one weight scale in their service, program, or
activity, to purchase, lease, or otherwise acquire, within two years
after the publication of this part in final form, at least one weight
scale that meets the requirements of the Standards for Accessible MDE,
unless the entity already has one in place. This requirement is subject
to the other requirements and limitations set forth in Sec. 35.211.
Thus, this section does not require a public entity to acquire an
accessible examination table and an accessible weight scale if doing so
would result in a fundamental alteration in the nature of the service,
program, or activity or in undue financial and administrative burdens,
per Sec. 35.211(e) and (f). In addition, public entities may use
designs, products, or technologies as alternatives to those prescribed
by the MDE Standards if the criteria set forth in Sec. 35.211(d) are
satisfied.
Issue 11: The Department seeks public comment on the
potential impact of the requirements in paragraph (c) on people with
disabilities and public entities, including the impact on the
availability of accessible MDE that will be available for purchase and
lease. The Department also seeks public comment on whether two years
would be an appropriate amount of time for such a requirement and, if
two years would not be an appropriate amount of time, what the
appropriate amount of time would be.
[[Page 2190]]
Sec. 35.211(d) Equivalent Facilitation
Paragraph (d) specifies that a public entity may use designs,
products, or technologies as alternatives to those prescribed by the
MDE Standards, for example, to incorporate innovations in
accessibility. However, this exception applies only where the public
entity provides substantially equivalent or greater accessibility and
usability than the MDE Standards require. It does not permit a public
entity to use an innovation that reduces access below what the MDE
Standards would provide. The responsibility for demonstrating
equivalent facilitation rests with the public entity.
Sec. 35.211(e) Fundamental Alteration and Undue Burden
Paragraph (e) addresses the fundamental alteration and undue
financial and administrative burden defenses. While the proposed rule
generally requires public entities to adhere to the MDE Standards when
newly purchasing, leasing, or otherwise acquiring equipment, it does
not require public entities to take steps that would result in a
fundamental alteration in the nature of their services, programs, or
activities or in an undue financial or administrative burden. These
proposed limitations mirror the existing title II regulation at 28 CFR
35.150(a)(3). If a particular action would result in a fundamental
alteration or undue burden, the public entity would be obligated to
take other action that would not result in such an alteration or such
burdens but would nevertheless ensure that individuals with
disabilities receive the benefits or services the public entity
provides.
Sec. 35.211(f) Diagnostically Required Structural or Operational
Characteristics
Paragraph (f) incorporates what the Access Board's MDE Standards
refer to as a General Exception.\70\ The paragraph states that, where a
public entity can demonstrate that compliance with the MDE Standards
would alter diagnostically required structural or operational
characteristics of the equipment, preventing the use of the equipment
for its intended diagnostic purpose, compliance with the Standards
would result in a fundamental alteration and therefore would not be
required. The Department expects that this provision will apply only in
rare circumstances.
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\70\ 36 CFR pt. 1195, app., sec. M201.2.
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In such circumstances, the public entity would still be required to
take other action that would not result in such an alteration or such
burdens but would nevertheless ensure that individuals with
disabilities could receive the services, programs, or activities the
public entity provides. For example, the Department has been informed
that certain positron emission tomography (``PET'') machines cannot
meet the MDE Standards' technical requirements for accessibility and
still serve their diagnostic function. If this is so, then public
entities would not be required to make those PET machines fully
accessible, but they would be required to take other action that would
enable individuals with disabilities to access PET machines in some
other way without fundamentally altering the nature of the service,
program, or activity, or imposing an undue financial or administrative
burden. Such actions may include assisting patients who use wheelchairs
with transferring so that they can receive a PET scan.
Issue 12: The Department seeks public comment on whether
the proposed exception set forth in Sec. 35.211(f) is needed.
Sec. 35.212 Existing Medical Diagnostic Equipment
In addition to the requirements for newly purchased, leased, or
otherwise acquired MDE, proposed Sec. 35.212 requires that public
entities address access barriers resulting from a lack of accessible
MDE in their existing inventory of equipment. Here the proposed rule
adopts an approach analogous to the concept of program accessibility in
the existing regulation implementing title II of the ADA.\71\ Under
this approach, public entities may make their services, programs, and
activities available to individuals with disabilities without extensive
retrofitting of their existing buildings and facilities that predate
the regulations, by offering access to those programs through
alternative methods. The Department intends to adopt a similar approach
with MDE to provide flexibility to public entities, address financial
concerns about acquiring new MDE, and at the same time ensure that
individuals with disabilities will have access to public entities'
health care services, programs, and activities.
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\71\ 28 CFR 35.150.
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Proposed Sec. 35.212 requires that each service, program, or
activity of a public entity, when viewed in its entirety, be readily
accessible to and usable by individuals with disabilities. Section
35.212(a)(1) makes clear, however, that a public entity is not required
to make each piece of its existing MDE accessible. Like Sec.
35.211(e), Sec. 35.212(a)(2) incorporates the concepts of fundamental
alteration and undue financial and administrative burden. These
provisions do not excuse a public entity from addressing the
accessibility of the program. If a particular action would result in a
fundamental alteration or undue burden, the public entity would still
be obligated to ensure that individuals with disabilities are able to
receive the public entity's benefits and services.
Sec. 35.212(b) Methods
Paragraph (b) sets forth various methods by which public entities
can make their services, programs, and activities readily accessible to
and usable by individuals with disabilities when the requirements in
proposed Sec. 35.211 have not been triggered by the new acquisition of
MDE. Of course, the purchase, lease, or other acquisition of accessible
MDE may often be the most effective way to achieve program
accessibility. However, except as stated in proposed Sec. 35.211, a
public entity is not required to purchase, lease, or acquire accessible
MDE if other methods are effective in achieving compliance with this
subpart.
For example, if doctors at a medical practice have staff privileges
at a local hospital that has accessible MDE, the medical practice may
be able to achieve program accessibility by ensuring that the doctors
see a person with a disability who needs accessible MDE at the
hospital, rather than at the local office, so long as the person with a
disability is afforded an opportunity to participate in or benefit from
the service, program, or activity equal to that afforded to others.
Similarly, if a medical practice has offices in several different
locations, and one of the locations has accessible MDE, the medical
practice may be able to achieve program accessibility by serving the
patient who needs accessible MDE at that location. However, such an
arrangement would not provide an equal opportunity to participate in or
benefit from the service, program, or activity if it was, for example,
significantly less convenient for the patient or if the visit to a
different location resulted in higher costs for the patient.
Similarly, if the scoping requirements set forth in Sec. 35.211(b)
would require a public entity's medical practice to have three height-
adjustable exam tables and an accessible weight scale, but the
practice's existing equipment includes only one accessible exam table
and one accessible scale, then until the practice must comply with
Sec. 35.211, the practice could ensure that its services are readily
accessible to and usable by people with
[[Page 2191]]
disabilities by establishing operating procedures such that, when a
patient with a mobility disability schedules an appointment, the
accessible MDE can be reserved for the patient's visit. In some cases,
a public entity may be able to make its services readily accessible to
and usable by individuals with disabilities by using a patient lift or
a trained lift team, especially in instances in which a patient cannot
or chooses not to independently transfer to the MDE in question.\72\
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\72\ See U.S. Dep't of Just., Civ. Rts. Div., Access to Medical
Care for Individuals with Mobility Disabilities (June 26, 2020),
https://www.ada.gov/medcare_mobility_ta/medcare_ta.htm [https://perma.cc/UH8Y-NZWL].
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If the means by which a public entity carries out its obligation
under Sec. 35.212(a) to make its service, program, or activity readily
accessible to and usable by individuals with disabilities is by
purchasing, leasing, or otherwise acquiring accessible MDE, the
requirements for newly purchased, leased, or otherwise acquired MDE set
forth in Sec. 35.211 would apply.
Issue 13: The Department seeks information about other
ways that public entities can make their services, programs, and
activities readily accessible to and usable by individuals with
disabilities when proposed Sec. 35.211 does not apply.
The Department is also aware that there may be initial supply
issues for accessible MDE, particularly if a large number of public
entities seek to purchase accessible MDE at the same time. The
Department notes that the fundamental alteration and undue financial
and administrative burden limitations may apply if supply chain issues
hamper the ability of public entities to purchase, lease, or otherwise
acquire accessible MDE.
The proposed rule's requirements apply regardless of whether public
entities are using MDE that is leased, purchased, or acquired through
other means. The Department is aware that some public entities may
lease MDE, rather than purchasing it outright. The Department's
existing title II regulation, at 28 CFR 35.130(b)(3), provides that a
public entity may not, directly or through contractual or other
arrangements, use criteria or methods of administration that subject
qualified persons with disabilities to discrimination on the basis of
disability. The Department's existing title II regulation, at 28 CFR
35.130(b)(1)(i)-(ii), also prohibits a public entity from, directly or
through contractual or other arrangements, denying a qualified
individual with a disability the opportunity to participate in or
benefit from a service or affording a qualified individual with a
disability an opportunity to participate in or benefit from a service
that is not equal to the opportunity afforded others. Under these
longstanding regulatory provisions, the manner in which a public entity
acquires its equipment does not alter the entity's obligation to
provide an accessible program, service, or activity. The proposed
rule's requirements also apply if the public entity contracts with a
third party to provide medical programs, services, or activities.
Issue 14: The Department seeks information regarding
public entities' leasing practices, including how many and what types
of public entities use leasing, rather than purchasing, to acquire MDE;
under what circumstances public entities lease equipment; whether
leasing is limited to certain types of equipment (e.g., costlier and
more technologically complex types of equipment); and the typical
length of public entities' MDE lease agreements.
Issue 15: The Department seeks information regarding
whether there is a price differential for MDE lease agreements for
accessible equipment.
Issue 16: The Department seeks information regarding any
methods that public entities use to acquire MDE other than purchasing
or leasing.
Medical Equipment Used for Treatment, not Diagnostic, Purposes
Many types of medical equipment other than MDE are used in the
provision of health care. The accessibility, or lack thereof, of these
types of equipment can determine whether people with disabilities have
an equal opportunity to participate in and benefit from health
services, programs, and activities. This non-diagnostic medical
equipment may be used by public entities and includes, for example,
devices intended to be used for therapeutic or rehabilitative care such
as treatment tables and chairs for oncology, obstetrics, physical
therapy, and rehabilitation medicines; lifts; infusion pumps used for
dispensing chemotherapy drugs, pain medications, or nutrients into the
circulatory system; dialysis chairs used while a patient's blood is
pumped between a patient and a dialyzer; other tables or chairs
designed for highly specialized procedures; general exercise and
rehabilitation equipment used while seated or standing; and ancillary
equipment \73\ needed to ensure the safety and comfort of patients in
the use of medical equipment.\74\ Although the MDE Standards do not
address non-diagnostic medical equipment, certain types of other
medical equipment that are not diagnostic in purpose may still fall
into the technical criteria categories set out by the MDE Standards
(equipment used in (1) supine, prone, or side-lying position, (2)
seated position, (3) while seated in a wheelchair, and (4) standing
position; certain technical requirements concerning methods of
communication and operable parts). As noted above, equipment used for
both diagnostic purposes and other purposes is MDE if it otherwise
meets the definition of MDE.
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\73\ Ancillary equipment may include equipment such as cushions,
bolsters, straps, sliding boards, or other items used to facilitate
transfers and to help position patients.
\74\ See U.S. Access Board, Medical Diagnostic Equipment
Accessibility Standards Advisory Committee, Advancing Equal Access
to Diagnostic Services: Recommendations on Standards for the Design
of Medical Diagnostic Equipment for Adults with Disabilities (Dec.
6, 2013), https://www.access-board.gov/advisory-committee-reports/mde/mde-report/ [https://perma.cc/L2WC-S89L].
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The Department is considering adding a provision establishing that
when the MDE Standards contain technical standards that can be applied
to a particular piece of non-diagnostic medical equipment, the
requirements set forth in Sec. Sec. 35.210 through 35.213 apply to the
non-diagnostic medical equipment at issue. Although the MDE Standards
were promulgated by the Access Board in response to a statutory mandate
to provide standards specific to diagnostic equipment, public entities
have an obligation under title II to provide equal opportunity to
benefit from medical care of all types, including through the use of
equipment that does not satisfy the definition of MDE. The Department
seeks comment on whether to apply the Access Board's MDE Standards to
non-diagnostic equipment--for example, because the relevant
characteristics of some types of non-diagnostic equipment may be
sufficiently similar to MDE to warrant applying the same standards--and
if there is adequate justification for applying the MDE Standards'
technical specifications to non-diagnostic equipment, which non-
diagnostic equipment should be covered. For example, infusion chairs
used only to dispense chemotherapy drugs are not used for diagnostic
purposes and therefore would not fall under the definition of MDE. But
if the MDE Standards contained technical standards that could be
applied to infusion chairs, the requirements set forth in Sec. Sec.
35.210 through 35.213 could apply to such equipment. The Department
seeks public comment on whether this rule should apply to medical
equipment that
[[Page 2192]]
is not used for diagnostic purposes, and if so, in what situations it
should apply.
Issue 17: If this rule were to apply to medical equipment
that is not used for diagnostic purposes:
[cir] Should the technical standards set forth in the Standards for
Accessible Medical Diagnostic Equipment be applied to non-diagnostic
medical equipment, and if so, in what situations should those technical
standards apply to non-diagnostic medical equipment?
[cir] Are there particular types of non-diagnostic medical
equipment that should or should not be covered?
Sec. 35.213 Qualified Staff
The proposed rule requires public entities to ensure that their
staff are able to successfully operate accessible MDE, assist with
transfers and positioning of individuals with disabilities, and carry
out the program access obligation with respect to existing MDE. This
will enable public entities to carry out their obligation to make the
programs, services, and activities that they offer through or with the
use of MDE readily accessible to and usable by individuals with
disabilities. The Department believes that public entities must have,
at all times when services are provided to the public, appropriate and
knowledgeable personnel who can operate MDE in a manner that ensures
services are available and timely provided. Often, the most effective
way for public entities to ensure that their staff are able to
successfully operate accessible MDE is to provide staff training on the
use of MDE.
Issue 18: The Department seeks public comment on this
proposal, as well as any specific information on:
[cir] The effectiveness of programs used by public entities in the
past to ensure that their staff is qualified;
[cir] Any information on the costs associated with such programs;
and
[cir] Whether there are any barriers to complying with this
proposed requirement, and if so, how they may be addressed.
IV. Regulatory Process Matters
The Department has examined the likely economic and other effects
of this proposed rule addressing the accessibility of MDE under
applicable Executive Orders, Federal administrative statutes (e.g., the
Regulatory Flexibility Act, Paperwork Reduction Act, and Unfunded
Mandates Reform Act) and other regulatory guidance.\75\
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\75\ See E.O. 13563, 76 FR 3821 (Jan. 21, 2011); E.O. 13272, 67
FR 53461 (Aug. 13, 2002); E.O. 13132, 64 FR 43255 (Aug. 4, 1999);
E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by E.O. 14094,
88 FR 21879 (Apr. 6, 2023); Regulatory Flexibility Act of 1980
(RFA), as amended by the Small Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.,; Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et seq.; Unfunded Mandates
Reform Act of 1995, 2 U.S.C. 1501 et seq.; OMB Circular A-4 (Sept.
17, 2003).
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As discussed previously, the purpose of this proposed regulation is
to revise the regulations implementing title II of the ADA to establish
specific requirements, including the adoption of specific technical
standards, for making accessible the services, programs, and activities
offered by State and local governments to the public through their
medical diagnostic equipment.
The Department has carefully crafted this proposed regulation to
apply the protections of title II of the ADA in the most economically
efficient manner possible. The Office of Management and Budget (OMB),
Office of Information and Regulatory Affairs, has determined that this
regulatory action is significant. As such, the Department has
undertaken a Preliminary Regulatory Impact Analysis (PRIA) pursuant to
Executive Order 12866, as amended by Executive Order 14094. The
Department has undertaken an initial Regulatory Flexibility Analysis as
specified in Sec. 603(a) of the Regulatory Flexibility Act (RFA). The
results of both of these analyses are set forth below. Lastly, the
Department does not believe that this proposed regulation will have any
impact--significant or otherwise--relative to the Paperwork Reduction
Act, the Unfunded Mandates Reform Act, or the federalism principles
outlined in Executive Order 13132.
A. Preliminary Regulatory Impact Analysis Summary
The Department has prepared a PRIA for this rulemaking. This
summary of the PRIA provides an overview of the Department's initial
economic analysis. The full PRIA will be made available at https://www.ada.gov/assets/pdfs/mde-pria.pdf.
The Department estimates that this title II ADA proposed regulation
would affect 6,905 public entities.\76\ The Department quantifies
incremental costs that affected entities may incur in (1) purchasing or
leasing accessible MDE and (2) ensuring that qualified staff operate
MDE. The Department also quantifies incremental benefits that people
with mobility disabilities may enjoy due to higher shares of accessible
MDE, which yield improved health outcomes. In addition, the Department
discusses other benefits flowing from the proposed rule that cannot be
quantified due to lack of data or other methodological reasons.
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\76\ The estimate of 6,905 public entities comes from the
Department of Health and Human Services and the Centers for Medicare
& Medicaid Services, based on information in the U.S. Census
Bureau's 2019 SUSB Annual Data Table by Establishment Industry, U.S.
& states, 6-digit NAICS. See Table 2 of the PRIA for more
information.
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Table 1 below summarizes findings of the economic impact analysis
of the likely incremental monetized costs and benefits of the proposed
rule, on an annualized basis. All monetized costs and benefits are
estimated for a 10-year period using a discount rate of 3 or 7 percent.
Table 1--Annualized Value of Monetized Costs and Benefits Under the
Proposed Rule Over a 10-Year Period in 2022 Dollars
[Millions] \77\
------------------------------------------------------------------------
Discount Discount
rate (3 rate (7
percent) percent)
------------------------------------------------------------------------
Monetized Incremental Costs................... $38.5 $38.7
Monetized Incremental Benefits................ 7.7 4.8
------------------------------------------------------------------------
In addition to these monetized benefit estimates, the PRIA
discusses potential enormous unquantified benefits under the proposed
rule. The Department expects that the proposed rule will result in a
myriad of benefits for individuals with mobility disabilities flowing
from greater access to health care and a reduction in discriminatory
actions, such as the successful drug dosing for persons with
disabilities who will now be able to be weighed and given proper drug
regimens due to accessible weight scales, and the removal of multiple
causes of loss of self-esteem, frustration, and embarrassment.
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\77\ In addition to these specific point estimates, the
Department in the PRIA reports a full range of cost estimates of
$18.6 million to $68.6 million at a 3 percent discount rate, and a
full range of cost estimates of $18.7 million to $68.8 million at a
7 percent discount rate. The PRIA reports a full range of benefit
estimates of $5.1 million to $10.2 million at a 3 percent discount
rate, and a full range of benefit estimates of $3.2 million to $6.4
million at a 7 percent discount rate.
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As further discussed in the PRIA, there are likely no public
entities in the healthcare sector that do not receive some form of
Federal financial assistance. Therefore, all or virtually all entities
that are subject to title II of the ADA are also subject to section 504
of the Rehabilitation Act. Further, as also noted in the PRIA, title II
and section 504 impose parallel requirements, and courts have
interpreted them to be consistent. Maintaining that consistency, this
rule under title II
[[Page 2193]]
imposes virtually the same obligations on public entities as HHS's rule
imposes under section 504.
If we take as an alternative baseline the prior adoption of HHS's
section 504 rule, assuming it is finalized, public entities will incur
no additional costs to comply with title II as to accessible MDE.
Entities that comply with the section 504 rule as to MDE will
necessarily comply with the title II rule as well.
Under this alternative baseline, it also follows that the title II
rule would engender no affirmative benefits with regard to accessible
MDE. However, the title II rule could potentially avert significant
administrative or transaction costs. Absent the proposed rule setting
technical standards and scoping requirements for accessible MDE under
title II of the ADA, courts might interpret title II to impose
obligations on public entities that differ in some respects from those
under section 504. Such differences would result in confusion,
uncertainty, duplication, litigation, and increased compliance costs
for regulated entities. One advantage of adopting the title II rule is
thus avoidance of these pitfalls.
The PRIA includes both quantitative and qualitative discussions of
regulatory alternatives directed toward the same goals while imposing
lower costs. The PRIA concludes that the proposed rule maximizes net
benefits to society while also achieving the regulatory goals.
The Department has examined the impact of the proposed rule on
small entities as required by the RFA. For the purpose of this
analysis, impacted small entities are independent State and local
governmental units in the United States that serve a population less
than 50,000.\78\ Based on this definition, the Department estimates, in
the PRIA at Table 13, a total of 38,514 small governmental entities, of
which less than 7 percent have public entities that would be required
to purchase accessible MDE. The PRIA estimates the annualized costs of
the proposed rule at no more than 1 percent of the annual revenues of
small government entities. The Department thus certifies that the
proposed rule will not have a significant economic impact on a
substantial number of small entities. The PRIA contains further data
and analysis under the RFA.
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\78\ 5 U.S.C. 601(5) and Small Business Admin., A Guide for
Government Agencies: How to Comply with the Regulatory Flexibility
Act (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/06/How-to-Comply-with-the-RFA.pdf [https://perma.cc/6BFB-2QWH].
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B. Executive Order 13132: Federalism
Executive Order 13132 requires executive branch agencies to
consider whether a proposed rule will have federalism implications.
That is, the rulemaking agency must determine whether the rule is
likely to have substantial direct effects on State and local
governments, the relationship between the Federal government and the
States and localities, or the distribution of power and
responsibilities among the different levels of government. If an agency
believes that a proposed rule is likely to have federalism
implications, it must consult with State and local government officials
about how to minimize or eliminate the effects.
Title II of the ADA covers State and local government services,
programs, and activities, and, therefore, has some federalism
implications. State and local governments have been subject to the ADA
since 1991, and the majority of them have also been required to comply
with the requirements of section 504. Hence, the ADA and the title II
regulations are not novel for State and local governments. This
proposed rule will preempt State laws affecting entities subject to the
ADA only to the extent that those laws provide less protection for the
rights of individuals with disabilities. This proposed rule does not
invalidate or limit the remedies, rights and procedures of any State
laws that provide greater or equal protection for the rights of
individuals with disabilities. To minimize any potential conflicts, the
Department believes it is prudent to consult with public entities about
the potential federalism implications of the proposed title II
regulation.
The Department intends to amend the regulations in a manner that
meets the objectives of the ADA while also minimizing conflicts between
State law and Federal interests. The Department is now soliciting
comments from State and local officials and their representative
national organizations through this NPRM.
Issue 19: The Department seeks public comment on the
potential federalism implications of the proposed rule, including
whether the proposed rule may have direct effects on State and local
governments, the relationship between the Federal government and the
States, or the distribution of power and responsibilities among the
various levels of government.
C. National Technology Transfer and Advancement Act of 1995
The National Technology Transfer and Advancement Act of 1995
(NTTAA) directs that, as a general matter, all Federal agencies and
departments shall use technical standards that are developed or adopted
by voluntary consensus standards bodies, which are private, generally
nonprofit organizations that develop technical standards or
specifications using well-defined procedures that require openness,
balanced participation among affected interests and groups, fairness
and due process, and an opportunity for appeal, as a means to carry out
policy objectives or activities.\79\ In addition, the NTTAA directs
agencies to consult with voluntary, private sector, consensus standards
bodies and requires that agencies participate with such bodies in the
development of technical standards when such participation is in the
public interest and is compatible with agency and departmental
missions, authorities, priorities, and budget resources.\80\
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\79\ Public Law 104-113, sec. 12(d)(1) (15 U.S.C. 272 note).
\80\ Id. sec. 12(d)(2).
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The Department is proposing to adopt the Standards for Accessible
Medical Diagnostic Equipment issued by the Access Board to apply to the
purchase and lease of MDE by public entities. These MDE Standards were
adopted by the U.S. Access Board in 2017 after a five-year review
period that included participation by an Advisory Committee composed of
representatives from the health care industry, architects, persons with
disabilities, and organizations representing a variety of interested
stakeholders. The MDE Standards were developed after extensive notice
and comment. The development of these standards was required by section
510 of the Rehabilitation Act of 1973, as amended, and were developed
with the participation of the Food and Drug Administration. They have
gained wide recognition in the United States. The Department is unaware
of any privately developed standards created with the same wide
participation and open process. As a result, the Department believes
that it is appropriate to use these MDE Standards for this rule.
Issue 20: The Department seeks public comment on the
Standards for Accessible Medical Diagnostic Equipment and whether there
are any other standards for accessible medical diagnostic equipment
that the Department should consider.
[[Page 2194]]
D. Plain Language Instructions
The Department makes every effort to promote clarity and
transparency in its rulemaking. In any regulation, there is a tension
between drafting language that is simple and straightforward and
drafting language that gives full effect to issues of legal
interpretation. The Department operates a toll-free ADA Information
Line at (800) 514-0301 (voice); (800) 514-0383 (TTY) that the public is
welcome to call to get assistance understanding anything in this
proposed rule. If any commenter has suggestions for how the regulation
could be written more clearly, please contact Rebecca B. Bond, Chief,
Disability Rights Section, whose contact information is provided in the
introductory section of this proposed rule entitled, FOR FURTHER
INFORMATION CONTACT.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), no person is
required to respond to a ``collection of information'' unless the
agency has obtained a control number from OMB.\81\ This proposed rule
does not contain any collections of information as defined by the PRA.
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\81\ 44 U.S.C. 3501 et seq.
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F. Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1503(2), excludes from coverage under that Act any proposed or final
Federal regulation that ``establishes or enforces any statutory rights
that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.
List of Subjects in 28 CFR Part 35
Administrative practice and procedure, Buildings and facilities,
Civil rights, Individuals with disabilities, State and local
requirements.
V. Proposed Regulatory Text
By the authority vested in me as Attorney General by law, including
5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a of
the Americans with Disabilities Act, as amended, and for the reasons
set forth in Appendix A to 28 CFR part 35, chapter I of title 28 of the
Code of Federal Regulations is proposed to be amended as follows--
PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES
0
1. The authority citation for part 35 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134,
12131, and 12205a.
Subpart A--General
0
2. Amend Sec. 35.104 by adding the following definitions of ``medical
diagnostic equipment'' and ``Standards for Accessible Medical
Diagnostic Equipment'' in alphabetical order:
Sec. 35.104 Definitions.
* * * * *
Medical diagnostic equipment (``MDE'') means equipment used in, or
in conjunction with, medical settings by health care providers for
diagnostic purposes. MDE includes, for example, examination tables,
examination chairs (including chairs used for eye examinations or
procedures, and dental examinations or procedures), weight scales,
mammography equipment, x-ray machines, and other radiological equipment
commonly used for diagnostic purposes by health professionals.
* * * * *
Standards for Accessible Medical Diagnostic Equipment (``Standards
for Accessible MDE'') means the standards at 36 CFR part 1195,
promulgated by the Architectural and Transportation Barriers Compliance
Board under section 510 of the Rehabilitation Act of 1973, as amended,
in effect as of the date of promulgation of the final version of this
rule, found in the Appendix to 36 CFR part 1195.
* * * * *
Subpart I--Accessible Medical Diagnostic Equipment
0
3. Add new subpart I to read as follows:
Subpart I--Accessible Medical Diagnostic Equipment
Sec.
35.210 Requirements for medical diagnostic equipment.
35.211 Newly purchased, leased, or otherwise acquired medical
diagnostic equipment.
35.212 Existing medical diagnostic equipment.
35.213 Qualified staff.
35.214-35.219 [Reserved]
Sec. 35.210 Requirements for medical diagnostic equipment.
No qualified individual with a disability shall, on the basis of
disability, be excluded from participation in or be denied the benefits
of the health care services, programs, or activities of a public entity
offered through or with the use of medical diagnostic equipment (MDE),
or otherwise be subjected to discrimination by any public entity
because the public entity's MDE is not readily accessible to or usable
by persons with disabilities.
Sec. 35.211 Newly purchased, leased, or otherwise acquired medical
diagnostic equipment.
(a) Requirements for all newly purchased, leased, or otherwise
acquired medical diagnostic equipment. All MDE that public entities
purchase, lease, or otherwise acquire more than 60 days after the
publication of this part in final form shall, subject to the
requirements and limitations set forth in this section, meet the
Standards for Accessible MDE, unless and until the public entity
satisfies the scoping requirements set forth in paragraph (b) of this
section.
(b) Scoping requirements.
(1) General requirement for medical diagnostic equipment. Where a
service, program, or activity of a public entity, including physicians'
offices, clinics, emergency rooms, hospitals, outpatient facilities,
and multi-use facilities, utilizes MDE, at least 10 percent of the
total number of units, but no fewer than one unit, of each type of
equipment in use must meet the Standards for Accessible MDE.
(2) Facilities that specialize in treating conditions that affect
mobility. In rehabilitation facilities that specialize in treating
conditions that affect mobility, outpatient physical therapy
facilities, and other services, programs, or activities that specialize
in treating conditions that affect mobility, at least 20 percent, but
no fewer than one unit, of each type of equipment in use must meet the
Standards for Accessible MDE.
(3) Facilities with multiple departments. In any facility or
program with multiple departments, clinics, or specialties, where a
service, program, or activity uses MDE, the facility shall disperse the
accessible MDE required by paragraphs (b)(1) and (2) of this section in
a manner that is proportionate by department, clinic, or specialty
using MDE.
(c) Requirements for examination tables and weight scales. Within
two years after the publication of this part in final form, public
entities shall, subject to the requirements and limitations set forth
in this section, purchase, lease, or otherwise acquire the following,
unless the entity already has them in place:
(1) At least one examination table that meets the Standards for
Accessible
[[Page 2195]]
MDE, if the public entity uses at least one examination table; and
(2) At least one weight scale that meets the Standards for
Accessible MDE, if the public entity uses at least one weight scale.
(d) Equivalent facilitation. Nothing in these requirements prevents
the use of designs, products, or technologies as alternatives to those
prescribed by the Standards for Accessible MDE, provided they result in
substantially equivalent or greater accessibility and usability of the
health care service, program, or activity. The responsibility for
demonstrating equivalent facilitation rests with the public entity.
(e) Fundamental alteration and undue burdens. This section does not
require a public entity to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a service,
program, or activity, or in undue financial and administrative burdens.
In those circumstances where personnel of the public entity believe
that the proposed action would fundamentally alter the service,
program, or activity or would result in undue financial and
administrative burdens, a public entity has the burden of proving that
compliance with paragraph (a) or (c) of this section would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the head of a public
entity or their designee after considering all resources available for
use in the funding and operation of the service, program, or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action would result in such an
alteration or such burdens, a public entity shall take any other action
that would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with disabilities receive the
benefits or services provided by the public entity.
(f) Diagnostically required structural or operational
characteristics. A public entity meets its burden of proving that
compliance with paragraph (a) or (c) of this section would result in a
fundamental alteration under paragraph (e) if it demonstrates that
compliance with paragraph (a) or (c) of this section would alter
diagnostically required structural or operational characteristics of
the equipment and prevent the use of the equipment for its intended
diagnostic purpose. This paragraph does not excuse compliance with
other technical requirements where compliance with those requirements
does not prevent the use of the equipment for its diagnostic purpose.
Sec. 35.212 Existing medical diagnostic equipment.
(a) Accessibility. A public entity shall operate each service,
program, or activity offered through or with the use of MDE so that the
service, program, or activity, in its entirety, is readily accessible
to and usable by individuals with disabilities. This paragraph does
not--
(1) Necessarily require a public entity to make each of its
existing pieces of MDE accessible to and usable by individuals with
disabilities; or
(2) Require a public entity to take any action that it can
demonstrate would result in a fundamental alteration in the nature of a
service, program, or activity, or in undue financial and administrative
burdens. In those circumstances where personnel of the public entity
believe that the proposed action would fundamentally alter the service,
program, or activity or would result in undue financial and
administrative burdens, a public entity has the burden of proving that
compliance with Sec. 35.212(a) of this part would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the head of a public entity
or their designee after considering all resources available for use in
the funding and operation of the service, program, or activity, and
must be accompanied by a written statement of the reasons for reaching
that conclusion. If an action would result in such an alteration or
such burdens, a public entity shall take any other action that would
not result in such an alteration or such burdens but would nevertheless
ensure that individuals with disabilities receive the benefits or
services, programs, and activities provided by the public entity.
(3) A public entity meets its burden of proving that compliance
with Sec. 35.211(a) or (c) of this part would result in a fundamental
alteration under paragraph (a)(2) if it demonstrates that compliance
with Sec. 35.211(a) or (c) of this part would alter diagnostically
required structural or operational characteristics of the equipment and
prevent the use of the equipment for its intended diagnostic purpose.
(b) Methods. A public entity may comply with the requirements of
this section through such means as reassignment of services to
alternate accessible locations; home visits; delivery of services at
alternate accessible sites; purchase, lease, or other acquisition of
accessible MDE; or any other methods that result in making its
services, programs, or activities readily accessible to and usable by
individuals with disabilities. A public entity is not required to
purchase, lease, or otherwise acquire accessible MDE where other
methods are effective in achieving compliance with this section. In
choosing among available methods for meeting the requirements of this
section, a public entity shall give priority to those methods that
offer services, programs, and activities to qualified individuals with
disabilities in the most integrated setting appropriate.
Sec. 35.213 Qualified staff.
Public entities must ensure their staff are able to successfully
operate accessible MDE, assist with transfers and positioning of
individuals with disabilities, and carry out the program access
obligation regarding existing MDE.
Sec. Sec. 35.214-35.219 [Reserved]
Dated: January 8, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-00553 Filed 1-11-24; 8:45 am]
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