[Federal Register Volume 89, Number 154 (Friday, August 9, 2024)]
[Rules and Regulations]
[Pages 65180-65200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16889]
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DEPARTMENT OF JUSTICE
28 CFR Part 35
[CRT Docket No. 143; AG Order No. 5982-2024]
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: Final rule.
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SUMMARY: The Department of Justice (``Department'') issues this final
rule revising the regulation implementing title II of the Americans
with Disabilities Act (``ADA''). The rule establishes requirements,
including the adoption of specific technical standards and scoping
requirements, for making accessible to the public the services,
programs, and activities that State and local governments offer through
their Medical Diagnostic Equipment (``MDE'').
DATES: This rule is effective October 8, 2024.
FOR FURTHER INFORMATION CONTACT: Rebecca B. Bond, Chief, Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, at
(202) 307-0663 (voice). 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 TTY) or (833) 610-1264 (TTY). You may
obtain copies of this rule in an alternative format by calling the ADA
Information Line at (800) 514-0301 (voice) or (833) 610-1264 (TTY).
This rule is also available on www.ada.gov.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
Title II of the ADA provides that no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs,
or activities of a public entity (also referred to as a ``State or
local government entity'').\1\ In this final rule, the Department is
revising its title II ADA regulation, 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 (revised as of July 1, 2017) (``MDE Standards'' or
``Standards for Accessible MDE'').\2\
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\1\ 42 U.S.C. 12132. The Department uses the phrases ``State and
local government entities'' and ``public entities'' interchangeably
throughout this rule to refer to ``public entit[ies]'' as defined in
42 U.S.C. 12131(1) that are covered under part A of title II of the
ADA.
\2\ As discussed in the explanation of Sec. 35.104 in the
appendix to this rule, the Department is declining to adopt two
sunset provisions in the January 9, 2017, version of the Access
Board's MDE Standards codified on July 1, 2017, because, if the
Department included those two provisions, part of the Department's
rule would lack effect upon publication. Other than those two
provisions, the Department is adopting the January 9, 2017, version
of the Access Board's MDE Standards, as reflected at 36 CFR part
1195 (revised as of July 1, 2017), in full.
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MDE includes equipment like medical examination tables, weight
scales, dental chairs, and radiological diagnostic equipment such as
mammography machines. Without accessible MDE, individuals with
disabilities may not be afforded an equal opportunity to receive
medical care,
[[Page 65181]]
including routine examinations, which could have serious implications
for their health. A lack of accessible MDE may also undermine the
quality of care that individuals with disabilities receive, delay the
provision of medical care, exacerbate existing medical conditions, and
increase the likelihood of developing secondary medical conditions.\3\
For instance, patients with disabilities have had to forgo Pap smears
because they could not safely transfer from their wheelchairs to fixed-
height examination tables.\4\ Similarly, inaccessible mammography
machines have contributed to low breast cancer screening rates for
patients with disabilities.\5\
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\3\ 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) (``NCD
Report''), https://www.ncd.gov/assets/uploads/reports/ncd_medical_equipment_report_508.pdf [https://perma.cc/6W4U-TVEX].
\4\ See id. at 17.
\5\ See id. at 18.
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The Access Board issued the MDE Standards under section 510 of the
Rehabilitation Act of 1973, 29 U.S.C. 794f (``section 510''). The MDE
Standards set forth minimum technical criteria for MDE used in
physicians' offices, clinics, emergency rooms, hospitals, and other
medical settings to ensure that such equipment is accessible to and
usable by individuals with accessibility needs, including people with
disabilities.\6\ By issuing this rule, the Department is adding a new
subpart I to the title II ADA regulation that adopts the MDE Standards
and makes them enforceable under title II of the ADA. This will ensure
that MDE used by public entities to offer services, programs, and
activities at places such as hospitals and health care clinics is
accessible to individuals with disabilities.
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\6\ 29 U.S.C. 794f(a).
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This rule generally requires all MDE that public entities purchase,
lease, or otherwise acquire more than 60 days after this final rule is
published to meet the MDE Standards, unless and until the rule's
scoping requirements are met. The scoping requirements state that where
public entities' services, programs, and activities use MDE, at least
10 percent of the total number of units, but no fewer than 1 unit, of
each type of equipment in use must meet the MDE Standards. The scoping
requirements further state that 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 1 unit, of each type of
equipment in use must meet the MDE Standards. The rule allows public
entities to use designs, products, or technologies as alternatives to
those prescribed by the MDE Standards, as long as the alternatives
provide substantially equivalent or greater accessibility and usability
than the MDE Standards require. Facilities with multiple departments,
clinics, or specialties must disperse their accessible MDE
proportionately. The rule also requires public entities that use
examination tables or weight scales to acquire at least one accessible
unit of each such category of equipment within two years after this
final rule is published.
In addition to adopting the MDE Standards and establishing the
requirements described in the preceding paragraph, the rule clarifies
that a public entity may not deny services that it would otherwise
provide to a patient with a disability, or otherwise discriminate
against patients with disabilities, because the public entity's MDE is
not readily accessible to or usable by individuals with disabilities.
The rule also clarifies that public entities' services, programs, and
activities offered through or with the use of MDE must be, in their
entirety, readily accessible to and usable by individuals with
disabilities. Public entities are not necessarily required to make
every unit of MDE accessible to and usable by individuals with
disabilities. For example, they may be able to make their services,
programs, and activities, in their entirety, readily accessible to and
usable by individuals with disabilities by acquiring accessible MDE,
delivering services at alternate accessible locations, or conducting
home visits. Finally, the rule requires public entities to ensure that
their staff can successfully operate accessible MDE, assist with
transfers and positioning of individuals with disabilities, and carry
out the rule's requirements for existing MDE.
There are limitations on public entities' obligations under this
rule. As with the current ADA regulation,\7\ this rule does not require
public entities to take any action that would constitute a fundamental
alteration of the service, program, or activity being offered or cause
undue financial and administrative burdens. Public entities are also
not required to take any action that would alter their equipment's
diagnostically required structural or operational characteristics and
prevent the equipment from being used for its intended diagnostic
purpose.
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\7\ See, e.g., 28 CFR 35.150(a)(3).
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More information about what this rule requires is provided in the
appendix.
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.\8\
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\8\ 42 U.S.C. 12132.
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The ADA authorizes the Attorney General to promulgate regulations
to carry out the provisions of title II, with the exception of certain
matters within the scope of the authority of the Secretary of
Transportation.\9\ The ADA also authorizes the Attorney General to
promulgate regulations to carry out the provisions of title III, which
focuses on public accommodations.\10\ 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 which adopted the
Americans with Disabilities Act Accessibility Guidelines for Buildings
and Facilities (``ADA Standards for Accessible Design'').\11\
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\9\ Id. section 12134. Sections 229(a) and 244 of the ADA direct
the Secretary of Transportation to issue regulations implementing
part B of title II, except for section 223. See 42 U.S.C. 12149,
12164.
\10\ Id. section 12186(b).
\11\ 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 (``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'').\12\ The 2004
ANPRM asked for public comment on a range of issues not specifically
addressed in the 1991 ADA regulation, including coverage of movable or
portable equipment and furniture.\12\ The Department subsequently
issued a notice of proposed rulemaking (``NPRM'') in 2008.\13\ 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.\14\ Instead, the Department continued its
approach of requiring covered entities to provide accessible equipment
and furniture as
[[Page 65182]]
needed to comply with the ADA's general nondiscrimination requirements
under the Department's existing regulations.\15\
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\12\ 69 FR 58774-75.
\13\ 73 FR 34466 (June 17, 2008).
\14\ Id. at 34474-75.
\15\ Id.
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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'').\16\ 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.\17\ 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.\18\
However, in December 2017, the Department withdrew the 2010 ANPRM to
reevaluate whether the imposition of specific regulatory standards for
the accessibility of nonfixed equipment and furniture was necessary and
appropriate.\19\
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\16\ See Press Release, 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).
\17\ 75 FR 43452 (July 26, 2010).
\18\ See Off. of Mgmt. & Budget, Off. of Info. & 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].
\19\ 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 regulation to ensure the accessibility of
equipment and furniture in public entities' and public accommodations'
programs and services.\20\ Subsequently, in 2022, the Department
decided to bifurcate that rulemaking and announced that it planned to
publish a separate ANPRM that solely addressed the accessibility of MDE
under both title II and title III.\21\ The Department ultimately
proceeded with its MDE rulemaking under title II through an NPRM,
rather than first issuing an ANPRM.
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\20\ See Off. of Mgmt. & Budget, Off. of Info. & 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].
\21\ See Off. of Mgmt. & Budget, Off. of Info. & 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].
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In the NPRM, published on January 12, 2024, the Department proposed
to revise its title II regulation to adopt the Access Board's technical
standards and to establish scoping requirements to make accessible to
the public the services, programs, and activities that State and local
governments offer through their MDE.\22\ The Department also published
a fact sheet describing the NPRM's proposed requirements in plain
language to help ensure that members of the public understood the rule
and had an opportunity to provide feedback.\23\ The public comment
period closed on February 12, 2024. The Department received
approximately 200 comments from members of the public, including
individuals with disabilities and their family members, public
entities, disability advocacy groups, members of the medical community,
industry groups, and others. The Department also received two letters
from Members of Congress, which addressed issues discussed in many of
the other comments submitted on this rulemaking.\24\
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\22\ 89 FR 2183 (Jan. 12, 2024).
\23\ U.S. Dep't of Just., Civ. Rts. Div., Fact Sheet: Notice of
Proposed Rulemaking on Accessibility of Medical Diagnostic
Equipment, https://www.ada.gov/resources/2024-01-10-mde-nprm/
[https://perma.cc/R69R-4QBW].
\24\ Sen. Robert P. Casey, Jr., et al., Comment Letter on
Proposed Rule Regarding Nondiscrimination on the Basis of
Disability: Accessibility of Med. Diagnostic Equip. of State & Loc.
Gov't Entities (Mar. 25, 2024), https://www.regulations.gov/comment/DOJ-CRT-2024-0001-0196 [https://perma.cc/QB8A-LW5G]; Rep. Ayanna
Pressley, et al., Comment Letter on Proposed Rule Regarding
Nondiscrimination on the Basis of Disability: Accessibility of Med.
Diagnostic Equip. of State & Loc. Gov't Entities (Apr. 2, 2024),
https://www.regulations.gov/comment/DOJ-CRT-2024-0001-0197 [https://perma.cc/39MU-PXA5].
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The Department is coordinating its publication of this rule with
the Department of Health and Human Services (``HHS''). In September
2023, HHS issued an NPRM that addressed the requirements for
accessibility of MDE for recipients of Federal financial assistance
under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794
(``section 504'').\25\ HHS issued its final section 504 rule on May 9,
2024.\26\
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\25\ 88 FR 63392 (Sept. 14, 2023).
\26\ 89 FR 40066 (May 9, 2024).
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Title II is modeled on section 504,\27\ 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.\28\
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.\29\ The legislative history of the
Rehabilitation Act Amendments of 1992 \30\ provides that the revisions
to the Rehabilitation Act's findings, purpose, and policy provisions
are a confirmation of the principles of the ADA,\31\ and that these
principles are intended to guide the Rehabilitation Act's policies,
practices, and procedures.\32\ Further, courts interpret the ADA and
section 504 consistently.\33\ Thus, the Department believes there is
and should be parity between the relevant provisions of title II and
section 504.
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\27\ See, e.g., H.R. Rep. No. 101-485, pt. 2, at 84 (1990).
\28\ See, e.g., 42 U.S.C. 12201(a).
\29\ See H.R. Rep. No. 101-485, pt. 2, at 84 (1990).
\30\ Public Law 102-569, 106 Stat. 4344.
\31\ S. Rep. No. 102-357, at 14 (1992).
\32\ See id.; see also H.R. Rep. No. 102-822, at 81 (1992).
\33\ 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 the
congressional intent that the two disability rights laws be interpreted
consistently, the Department's rule, which applies to public entities
subject to title II of the ADA, imposes virtually the same requirements
as HHS's rule, which applies to recipients of Federal financial
assistance subject to section 504. The Department will continue to
consider issues concerning MDE under title III as well as equipment and
furniture other than MDE under both titles, although those issues are
not the subjects of rulemaking at this time.
B. Legal Foundation for Accessible MDE
This final rule 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.\34\ As a result of this mandate and the Department's
implementing regulation, public entities must provide accessible
equipment and furniture as necessary to comply with title II's
reasonable modification, effective communication, and program
accessibility requirements.
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\34\ 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.\35\ 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.\36\
These auxiliary aids include the ``[a]cquisition or modification of
equipment or devices.'' \37\
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\35\ 28 CFR 35.130(b)(7)(i).
\36\ See id. Sec. 35.160.
\37\ Id. Sec. 35.104; see also 82 FR 2848 (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.\38\ 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 the
fundamental alteration or undue burdens limitations.\39\ A public
entity may comply with the program accessibility requirement through
such means as redesign or acquisition of equipment.\40\
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\38\ 28 CFR 35.149.
\39\ Id. Sec. 35.150(a).
\40\ Id. Sec. 35.150(b)(1).
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As with many other statutes, the ADA's requirements are broad and
its implementing regulations do not include specific standards for
every obligation under the statute. This has been the case in the
context of the accessibility of MDE under the ADA. While public
entities were already required to comply with the ADA with respect to
MDE even before this rulemaking, the Department had not adopted
technical standards specifying what constitutes accessible MDE.
C. Overview of the Access Board's MDE Standards
Section 510 of the Rehabilitation Act 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.\41\ Under the statute, the
standards must ensure that such equipment is accessible to and usable
by individuals with accessibility needs, including people with
disabilities.
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\41\ 29 U.S.C. 794f(a).
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In implementing the mandate set forth in section 510 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.\42\ The January 9,
2017, revisions were codified on July 1, 2017.\43\ The Access Board
divides the MDE Standards into four separate technical criteria based
on how the equipment is used by the patient: (1) in the supine, prone,
or side-lying position; (2) in the seated position; (3) seated in a
wheelchair; and (4) in the standing position.\44\ 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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\42\ 82 FR 2810. For further detail on the Access Board's
extensive deliberative process, see generally Architectural and
Transportation Barriers Compliance Board, Rulemaking Docket: Medical
Diagnostic Equipment Accessibility Standards, https://www.regulations.gov/docket/ATBCB-2012-0003/document [https://perma.cc/5GZF-8TAZ].
\43\ 36 CFR part 1195 (revised as of July 1, 2017).
\44\ Id. part 1195, appendix, sections M301-04 (revised as of
July 1, 2017).
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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.\45\ 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.\46\ 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.\47\
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\45\ See id. sections M301-02.
\46\ See id. sections M303-04.
\47\ See id. sections M305-07.
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The January 9, 2017, version of the Access Board's MDE Standards
contained a temporary standard governing the minimum low height
requirement for transfers from diagnostic equipment used by patients in
the supine, prone, side-lying, or seated position.\48\ Specifically,
the temporary standard provided 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. Under this standard, any low transfer height between 17 inches
and 19 inches meets the MDE Standards. The January 9, 2017, version of
the Access Board's MDE Standards included a sunset provision which
stated that the 17-inch to 19-inch low transfer height range would
remain in effect only until January 10, 2022.\49\
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\48\ See id. sections M301.2.1, 302.2.1.
\49\ See id.
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On May 23, 2023, the Access Board issued an NPRM that proposed
replacing the temporary 17-inch to 19-inch low transfer height range
with a permanent 17-inch low transfer height standard.\50\ On July 25,
2024, the Access Board published a final rule replacing the temporary
17-inch to 19-inch low transfer height range with a permanent 17-inch
low transfer height standard. The Department will consider issuing a
supplemental rulemaking under title II proposing to adopt the Access
Board's updated standard.
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\50\ 88 FR 33056 (May 23, 2023).
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D. Need for the Adoption of MDE Standards
While section 510 directs the Access Board to develop standards for
accessible MDE, it does not give the Access Board authority to enforce
those standards.\51\ Compliance with the MDE Standards is mandatory
only if an enforcing authority adopts them as mandatory for entities
subject to its jurisdiction.\52\ By issuing this rule, the Department
adopts the MDE Standards under title II of the ADA.
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\51\ 29 U.S.C. 794f.
\52\ See 36 CFR 1195.1 (stating that other agencies, referred to
as enforcing authorities, may adopt the standards as mandatory
requirements for entities subject to their jurisdiction); 36 CFR
part 1195, appendix, section M101.3 (revised as of July 1, 2017)
(stating that enforcing authorities may include the Department of
Justice).
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The accessibility of MDE is essential to providing equal access to
medical care to people with disabilities. In developing this 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.\53\ The
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accessibility or inaccessibility of MDE impacts a substantial
population--according to an estimate by the Centers for Disease Control
and Prevention, as of 2023, approximately 61 million adults lived with
a disability in the United States, and 13.7 percent of those
individuals had a mobility disability with serious difficulty walking
or climbing stairs.\54\
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\53\ 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., U.S. Dep't of Health & Human Servs., Admin. for
Community Living, Wheelchair-Accessible Medical Diagnostic
Equipment: Cutting Edge Technology, Cost-Effective for Health Care
Providers, and Consumer-Friendly, https://acl.gov/sites/default/files/Aging%20and%20Disability%20in%20America/MDE%20Fact%20Sheet%20Final.docx [https://perma.cc/GW83-62WW].
\54\ U.S. Dep't of Health & Human Servs., Ctrs. for Disease
Control & Prevention, Disability Impacts All of Us, https://perma.cc/AX9E-9WU3. The Department also acknowledges that in
addition to disability impacting a substantial portion of the
population, disability discrimination frequently co-occurs with
other types of discrimination.
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While not all individuals with a mobility disability will require
accessible MDE or benefit from it to the same extent, significant
portions of this population 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 that involves MDE.\55\ In one example, a patient with
a disability remained in his wheelchair for the entirety of his annual
physical examination, 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.'' \56\ In another example, a patient with a disability reported
that even if she could be transferred to a standard examination table,
extra staff was needed to keep her from falling off the table because
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.\57\
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\55\ 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) https://pubmed.ncbi.nlm.nih.gov/28266148/ [https://perma.cc/5UBX-WEFE]; 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.
\56\ NCD Report at 15.
\57\ Id. at 16-17.
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Many individuals who submitted comments on the Department's NPRM
agreed that there is a need for a regulation on the accessibility of
MDE. Comments from individuals with disabilities and from caregivers
included anecdotes describing inadequate care and humiliations that
individuals with disabilities had experienced due to a lack of
accessible MDE. A young person who uses a wheelchair due to a spinal
cord injury wrote that she developed cancer shortly after her injury
but that doctors stopped part of her cancer treatment because of a lack
of accessible equipment to measure her bone density. Other commenters
described having to go to veterinarians' offices to use their larger
footprint weight scales, a situation that one commenter described as
ridiculous and challenging. In addition to commenters personally
impacted by the rulemaking, State and local government entities,
medical associations, academic institutions, and disability rights
advocacy groups expressed strong support for the rulemaking.
In addition to the comments submitted on the NPRM, many of which
described the effect of inaccessible MDE, 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.\58\ 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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\58\ 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
examination 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 & Health J. 366,
369 (2019) (stating that of the 462 people who needed a height-
adjustable examination table, 56 percent received it).
---------------------------------------------------------------------------
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
did not provide the most basic forms 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
examination and treatment equipment, for their facilities.\59\ These
settlement agreements, and a description of the Barrier-Free Health
Care Initiative, are available to the public at www.ada.gov/barrierfreehealthcare.htm [https://perma.cc/9TT7-BCRN].
---------------------------------------------------------------------------
\59\ 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].
---------------------------------------------------------------------------
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 disabilities.
For example, the Department and HHS jointly issued a technical
assistance document on medical care for people with mobility
disabilities, addressing how accessible MDE can be critical to ensuring
that people with disabilities receive medical services equal to those
received by people without disabilities.\60\ In particular, the
document explains that the availability of accessible medical equipment
is an important part of providing accessible medical care, and that
health care providers must ensure that medical equipment is not a
barrier to individuals with disabilities.\61\ The guidance also
provides examples of accessible medical equipment, including
adjustable-height examination 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.
---------------------------------------------------------------------------
\60\ 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/resources/medical-care-mobility/ [https://perma.cc/UH8Y-NZWL].
\61\ 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 helps ensure clarity to 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
[[Page 65185]]
may be for those who lack adequate access to medical care and
treatment. As a 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 ensuring access to health care services
through accessible MDE is necessary to provide equitable medical
care.\62\ As a result of its findings, NCD called upon the Department
to revise its ADA regulation to formally adopt the MDE Standards.\63\
---------------------------------------------------------------------------
\62\ NCD Report at 14.
\63\ Id. at 52.
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By issuing this final rule, the Department is revising its ADA
regulation to help ensure that vital health care services, programs,
and activities are equally available to individuals with disabilities.
Specifically, the Department is adopting and incorporating into its
title II ADA regulation the specific technical requirements for
accessible MDE that are set forth in the Access Board's MDE
Standards.\64\
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\64\ As explained in the section-by-section analysis of Sec.
35.104 in the appendix to this rule, the Department is declining to
adopt the two sunset provisions in the January 9, 2017, version of
the Access Board's MDE Standards. Other than those two provisions,
the Department is adopting the January 9, 2017, version of the
Access Board's MDE Standards, as contained in 82 FR 2845 through
2848, in full.
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III. Regulatory Process Matters
The Department has examined the likely economic and other effects
of this rule addressing the accessibility of MDE under applicable
Executive orders,\65\ Federal administrative statutes (e.g., the
Regulatory Flexibility Act,\66\ Paperwork Reduction Act,\67\ and
Unfunded Mandates Reform Act \68\), and other regulatory guidance.\69\
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\65\ See E.O. 13563, 76 FR 3821 (Jan. 18, 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).
\66\ Regulatory Flexibility Act of 1980 (``RFA''), as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996, 5
U.S.C. 601 et seq.
\67\ Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
\68\ Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.
\69\ See Office of Mgmt. & Budget, Circular A-4 (Sept. 17, 2003)
(superseded by Office of Mgmt. & Budget, Circular A-4 (Nov. 9,
2023)).
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As discussed previously, the purpose of this rule is to revise the
regulation implementing title II of the ADA in order to ensure that the
services, programs, and activities offered by State and local
government entities through or with the use of MDE are accessible to
people with disabilities. The Department is adopting specific technical
standards and scoping requirements related to the accessibility of MDE.
This rule is necessary to help public entities understand how to ensure
that people with disabilities have equal access to the services,
programs, and activities public entities provide through or with the
use of MDE.
The Department has carefully crafted this final rule to better
ensure compliance with the protections of title II of the ADA, while at
the same time doing so in an economically efficient manner. After
reviewing the Department's assessment of the likely costs of this
regulation, the Office of Management and Budget (``OMB'') has
determined that it is a significant regulatory action within the
meaning of Executive Order 12866, as amended. As such, the Department
has undertaken a Final Regulatory Impact Analysis (``FRIA'') pursuant
to Executive Orders 12866 and 14094. The Department has also undertaken
a Final Regulatory Flexibility Analysis (``FRFA'') as specified in
section 603(a) of the RFA. The results of these analyses are summarized
below. In addition, the Department has determined that this rule
complies with the requirements of the National Technology Transfer and
Advancement Act of 1995 (``NTTAA''), Public Law 104-113, sec. 12(d),
110 Stat. 783, and with the Department's plain language policies.
Lastly, the Department does not believe that this regulation will have
any impact--significant or otherwise--relative to the federalism
principles outlined in Executive Order 13132, the Paperwork Reduction
Act, or the Unfunded Mandates Reform Act.
A. Final Regulatory Impact Analysis (``FRIA'') Summary and Final
Regulatory Flexibility Analysis (``FRFA'') Summary
1. FRIA Summary
The Department prepared a FRIA for this rulemaking. The Department
contracted with Eastern Research Group Inc. (``ERG'') to prepare this
economic assessment. This summary of the FRIA provides an overview of
the Department's final economic analysis and key findings. The full
FRIA will be made available at www.ada.gov/assets/pdfs/mde-fria.pdf.
The Department estimates that this title II ADA regulation will
affect 6,911 public entities.\70\ The Department quantifies incremental
costs that affected entities may incur in (1) purchasing or leasing
accessible MDE and (2) ensuring qualified staff. The Department also
quantifies incremental benefits that people with mobility disabilities
may enjoy due to higher shares of accessible MDE, which may yield
improved health outcomes. In addition, the Department discusses other
benefits flowing from the final rule that cannot be quantified due to
lack of data or other methodological reasons.
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\70\ The estimate of 6,911 public entities comes from HHS and
the Centers for Medicare & Medicaid Services, based on information
in the U.S. Census Bureau's 2019 Statistics of U.S. Businesses
Annual Data Table by Establishment Industry, U.S. & States, 6-digit
NAICS. See Table 2 of the FRIA for more information.
---------------------------------------------------------------------------
Table 1 summarizes findings of the economic impact analysis of the
likely incremental monetized costs and benefits of the final 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
Final Rule Over a 10-Year Period
[In millions of 2023 dollars]
------------------------------------------------------------------------
Discount rate Discount rate
Quantity (3 percent) (7 percent)
------------------------------------------------------------------------
Monetized Incremental Costs............. $40.3 $40.7
Monetized Incremental Benefits.......... 9.0 5.3
------------------------------------------------------------------------
Regarding costs, the Department finds that the final rule would
result in annualized costs over a 10-year period of $40.3 million or
$40.7 million, corresponding to a 3 or 7 percent discount rate.\71\
These costs include
[[Page 65186]]
incremental costs that affected entities may incur in purchasing or
leasing accessible MDE and ensuring qualified staff. All values are
presented in 2023 dollars, as 2024 data were not yet available at the
time this analysis was performed.
---------------------------------------------------------------------------
\71\ See Table 11 of the FRIA for derivation of this estimate.
---------------------------------------------------------------------------
Regarding benefits, the FRIA finds that the final rule would result
in annualized benefits over a 10-year period of $9.0 million at a 3
percent discount rate or $5.3 million at a 7 percent discount rate.
Monetized benefits are based on an assessment of reduced mortality and
morbidity risks from cancer diagnoses for individuals with mobility
disabilities.
In addition to providing a monetized benefit estimate, the FRIA
discusses potentially enormous unquantified benefits under the rule.
The Department expects that the rule will result in myriad benefits for
individuals with mobility disabilities flowing from greater access to
health care, such as the benefits of accurate drug dosing for persons
with disabilities who will now be able to be weighed and given proper
drug regimens due to accessible weight scales. Other unquantified
benefits include increased equality, dignity, and the prevention of
frustration, embarrassment, and harms to self-esteem.
As further discussed in section 2.d of the FRIA, all public
entities in the health care sector likely 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 noted above, title II and section
504 impose parallel requirements, and courts have interpreted them to
be consistent. Maintaining that consistency, this rule under title II
imposes virtually the same obligations on public entities as HHS's rule
imposes under section 504. If this rule did not adopt the MDE Standards
and otherwise parallel the requirements set forth in HHS's section 504
rule, courts might interpret title II to impose obligations on public
entities that differ from those under section 504, resulting in
confusion, uncertainty, duplication, litigation, and increased
compliance costs for the many entities covered by both statutes. The
adoption of this rule under title II, which parallels the MDE
provisions of HHS's section 504 rule, avoids these pitfalls.
2. FRFA Summary
The Department examined the impact of the rule on small entities as
required by the RFA. In the NPRM, the Department certified that the
proposed rule would not have a significant economic impact on a
substantial number of small entities.\72\ The Department sought public
comment on this certification and its underlying analysis, including
the costs to small entities. A few commenters stated that the costs of
complying with this rule would be much higher than the Department
estimated, particularly for small entities. However, these comments
made only general statements and provided no data to adjust the costs.
Commenters provided no specific information that would call into
question the validity of the data and methods used to calculate costs
both for government entities in general and small government entities
in particular.
---------------------------------------------------------------------------
\72\ See 89 FR 2193.
---------------------------------------------------------------------------
The Department has prepared a FRFA to comply with its obligations
under the RFA. The FRFA will be published along with the Department's
FRIA, and it will be made available to the public at www.ada.gov/assets/pdfs/mde-fria.pdf. The FRFA describes and estimates the number
of small entities to which this rule applies and estimates the economic
impacts on small entities. The FRFA examines which industry groups
would be financially impacted the most by this rule. The FRFA also
explains the assumptions on which it is based and explains the criteria
used to assess what constitute ``significant economic impacts'' and ``a
substantial number'' of small entities. Based on this analysis, the
Attorney General has again reviewed this regulation in accordance with
the RFA, 5 U.S.C. 605(b), and certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
B. Executive Order 13132: Federalism
Executive Order 13132 requires executive branch agencies to
consider whether a rule will have federalism implications.\73\ 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 rule is
likely to have federalism implications, it must consult with State and
local government officials about how to minimize or eliminate those
effects.
---------------------------------------------------------------------------
\73\ 64 FR 43255 (Aug. 4, 1999).
---------------------------------------------------------------------------
Title II of the ADA covers State and local government services,
programs, and activities, and therefore clearly has some federalism
implications. State and local governments have been subject to the ADA
since 1991, and the many State and local government entities that
receive Federal financial assistance have also been required to comply
with the requirements of section 504. Hence, neither the ADA nor the
title II regulation is novel for State and local governments.
In crafting this regulation, the Department has been mindful of its
obligation to meet the objectives of the ADA while also minimizing
conflicts between State law and Federal interests, consistent with
section 4(c) of Executive Order 13132. The Department sought public
comment in the NPRM on the potential federalism implications of this
rule, including whether the 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. The Department received no comments from
State or local governments on this issue.
The Department clarifies that, consistent with 42 U.S.C. 12201(b),
this rule preempts 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 rule does not invalidate
or limit the remedies, rights, or procedures of any State laws that
provide greater or equal protection for the rights of individuals with
disabilities. Moreover, the Department's provision on equivalent
facilitation at Sec. 35.211(d) provides that nothing in these
requirements prevents the use of designs, products, or technologies as
alternatives to those prescribed by the MDE Standards, provided they
result in substantially equivalent or greater accessibility and
usability of the health care service, program, or activity.
Accordingly, for example, if a State law required public entities in
that State to comply with a different standard than the MDE Standards,
nothing in this rule would prevent a public entity from complying with
the different standard if the use of that standard resulted in
substantially equivalent or greater accessibility and usability of the
public entity's health care service, program, or activity.
Responsibility for demonstrating equivalent facilitation rests with the
public entity.
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
[[Page 65187]]
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.\74\ 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.\75\
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\74\ Public Law 104-113, sec. 12(d)(1); see also Office of Mgmt.
& Budget, Circular A-119 (Jan 27, 2016), https://www.whitehouse.gov/wp-content/uploads/2020/07/revised_circular_a-119_as_of_1_22.pdf
[https://perma.cc/A5LP-X3DB].
\75\ Public Law 104-113, sec. 12(d)(2).
---------------------------------------------------------------------------
The Department is adopting the MDE Standards issued by the Access
Board as the accessibility standard to apply to the services, programs,
and activities that State and local governments offer using MDE.\76\ As
discussed in section II.C, the MDE Standards were adopted by the Access
Board, an independent Federal agency that includes public members and
holds regular public meetings, in 2017 after a five-year review period.
The review 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. These standards were developed as required by section 510,
as amended, and were developed in consultation with the Food and Drug
Administration. 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 the MDE
Standards for this rule.
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\76\ As explained in the analysis and response to public
comments regarding Sec. 35.104 in the appendix to this rule, the
Department is not adopting the sunset provisions at M301.2.2 and
M302.2.2.
---------------------------------------------------------------------------
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) 610-1264 (TTY) that the public is
welcome to call to get assistance understanding anything in this rule.
In addition, the ADA.gov website provides information in plain language
about the ADA and the Department's ADA rules, including this final
rule.
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.\77\ This final rule does
not contain any collections of information as defined by the PRA.
---------------------------------------------------------------------------
\77\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------
F. Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995 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.'' \78\ Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.
---------------------------------------------------------------------------
\78\ 2 U.S.C. 1503(2).
---------------------------------------------------------------------------
G. Congressional Review Act
This regulation is not a major rule as defined by the Congressional
Review Act, 5 U.S.C. 801 et seq.
List of Subjects for 28 CFR Part 35
Administrative practice and procedure, Buildings and facilities,
Civil rights, Individuals with disabilities, State and local
requirements.
By the authority vested in me as Attorney General by law, including
5 U.S.C. 301; 28 U.S.C. 509, 510; sections 201 and 204 of the Americans
with Disabilities Act, Public Law 101-336, as amended, and section 506
of the ADA Amendments Act of 2008, Public Law 110-325, and for the
reasons set forth in appendix E to 28 CFR part 35, chapter I of title
28 of the Code of Federal Regulations is 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 definitions of ``Medical diagnostic
equipment'' and ``Standards for Accessible Medical Diagnostic
Equipment'' in alphabetical order to read as follows:
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 promulgated by the
Architectural and Transportation Barriers Compliance Board under
section 510 of the Rehabilitation Act of 1973, as amended, found at 36
CFR part 1195 (revised as of July 1, 2017), with the exception of
M301.2.2 and M302.2.2.
* * * * *
0
3. Add 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.
[[Page 65188]]
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 (including via lease renewals), or otherwise acquire
after October 8, 2024, 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 August 9, 2024, 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 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 this section 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) of this section 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 (f) 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 (a) 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 this paragraph (a) 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 this paragraph (a) would result in a fundamental alteration under
paragraph (a)(2) of this section if it demonstrates that compliance
with this paragraph (a) 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
[[Page 65189]]
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]
0
4. Add appendix E to part 35 to read as follows:
Appendix E to Part 35--Guidance to Revisions to ADA Title II Regulation
on Accessibility of Medical Diagnostic Equipment of State and Local
Government Entities
Note: This appendix contains guidance providing a section-by-
section analysis of the revisions to this part published on August
9, 2024.
Section-by-Section Analysis and Response to Public Comments
This appendix provides a detailed description of the
Department's changes to this part (the title II regulation), the
reasoning behind those changes, and responses to significant public
comments received in connection with the rulemaking. The Department
made changes to subpart A of this part and added subpart I to this
part. The section-by-section analysis addresses the changes in the
order they appear in the title II regulation.
Subpart A--General
Section 35.104 Definitions
The Department is revising Sec. 35.104 to add definitions for
the terms ``medical diagnostic equipment'' and ``Standards for
Accessible Medical Diagnostic Equipment.''
Medical Diagnostic Equipment
The Department is defining the term ``medical diagnostic
equipment,'' consistent 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 requires the MDE Standards to set
forth the minimum technical criteria for medical diagnostic
equipment used in (or in conjunction with) physicians' offices,
clinics, emergency rooms, hospitals, and other medical settings, and
also requires the MDE Standards to 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
some types of MDE but are not exhaustive. The Department received
one comment recommending that the Department specifically require
that diagnostic equipment used by optometrists and ophthalmologists
be accessible. The regulatory text explains that MDE includes
examination chairs used for eye examinations or procedures, but the
Department cannot and need not provide an exhaustive list of all
medical specialties whose equipment is covered by subpart I of this
part. Equipment is covered by subpart I if health care providers use
it in, or in conjunction with, medical settings for diagnostic
purposes.
The Department received several comments requesting
clarification on whether the definition of ``medical diagnostic
equipment'' applies to equipment used outside of a medical facility,
such as in home settings, mobile health clinics, or through
telehealth appointments or remote diagnostic assessments. Some
commenters recommend that the Department explicitly state that the
definition of ``medical diagnostic equipment'' extends to equipment
used in such settings.
MDE is ``[e]quipment used in, or in conjunction with, medical
settings by health care providers for diagnostic purposes,'' and the
obligations set forth in subpart I of this part apply to
``service[s], program[s], or activit[ies] offered through or with
the use of MDE,'' subject to the limitations described in subpart I.
Whether a public entity needs to ensure that a specific piece of
equipment used in the provision of health care services, programs,
or activities in home or other settings complies with the MDE
Standards would depend on the particular factual circumstances in
question.
Standards for Accessible Medical Diagnostic Equipment
The Department is defining the term ``Standards for Accessible
Medical Diagnostic Equipment'' in accordance with the standards
promulgated by the Access Board on January 9, 2017, under section
510 of the Rehabilitation Act of 1973, as amended, and codified on
July 1, 2017, found at 36 CFR part 1195 (revised as of July 1,
2017). That is the version of the Access Board's MDE Standards that
was in effect when the Department issued its notice of proposed
rulemaking (NPRM).\1\ The Department is not, however, adopting two
provisions that were included in the January 9, 2017, version of the
Access Board's standards, M301.2.2 and M302.2.2 (``the sunset
provisions''). The sunset provisions stated that the 17-inch to 19-
inch low transfer height range set forth in M301.2.1 and M302.2.1
would cease to have effect on January 10, 2022.\2\ Accordingly, if
the definition of the MDE Standards that the Department is adopting
did not exclude the sunset provisions, there would be no enforceable
minimum low transfer height standard, since this final rule is being
promulgated after January 10, 2022. By adopting the January 9, 2017,
version of the MDE Standards that was codified on July 1, 2017, but
excluding the sunset provisions, the Department is adopting and
making enforceable the 17-inch to 19-inch low transfer height range
set forth in M301.2.1 and M302.2.1 of the January 9, 2017, version
of the MDE Standards. Under the final rule, public entities
acquiring accessible MDE have the option of acquiring MDE that
lowers to between 17 inches and 19 inches. However, under Sec.
35.212(a), public entities are required to operate their services,
programs, and activities that use MDE so that they are readily
accessible to and usable by individuals with disabilities,
regardless of whether the entities' MDE lowers to 17 inches or 19
inches.
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\1\ Although HHS's final rule addressing the accessibility of
medical diagnostic equipment under section 504 contains a different
citation in its definition of the term Standards for Accessible
Medical Diagnostic Equipment, see 89 FR 40184, that difference is
the result of citation formatting conventions of the Office of the
Federal Register. There is no substantive difference between the
definition of the term Standards for Accessible Medical Diagnostic
Equipment adopted in HHS's final rule and the definition of that
term adopted in DOJ's final rule.
\2\ 36 CFR part 1195, appendix, section M301.2.2 (stating that
M301.2.1 and M302.2.1 would cease to have effect on January 10,
2022).
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Several commenters submitted comments on the low transfer height
requirement. One commenter recommended that the Department make the
temporary low transfer height range a permanent requirement. Some
commenters expressed concern about the feasibility of complying with
a 17-inch low transfer height standard, and several other commenters
said the Department should adopt a 17-inch low transfer height
standard in anticipation of the Access Board finalizing a 17-inch
standard. As noted in the previous paragraph, the Department is
adopting the 17-inch to 19-inch low transfer height range, without
adopting the sunset provisions. The Department believes it is
appropriate to adopt the MDE Standards promulgated by the Access
Board, which were the product of a multi-year deliberative process.
As to the comments supporting or opposing a 17-inch low transfer
height standard, the Access Board had not yet issued a final rule
establishing a 17-inch low transfer height standard when the
Department issued its NPRM. Therefore, it would have been premature
for the Department to have sought public comment on or proposed
adopting the 17-inch standard in the NPRM, and the Department
declines to adopt and make enforceable such a standard in the final
rule without public comment. As noted in section II.C of the
preamble to the final rule, however, since the Access Board has now
issued a final rule updating the low transfer height standard, the
Department will consider issuing a supplemental rulemaking under
title II proposing to adopt it, and the Department will solicit
comments on the updated standard as part of any such rulemaking.
Some commenters urged the Department to work with the Access
Board to account for the needs of particular disability groups more
explicitly. Commenters asked that the Department consider more
specifically the needs of individuals with nonmobility disabilities,
people with respiratory disabilities, people who are blind or have
other sensory disabilities, higher weight people, and people with
intellectual disabilities. The MDE Standards account for the needs
of individuals with nonmobility
[[Page 65190]]
disabilities to some extent,\3\ and any new standards to account for
additional disabilities or factors that the Access Board did not
incorporate into the MDE Standards should be developed by the Access
Board, which has authority to promulgate such standards under
section 510. The Department notes that the Access Board received
comments recommending that the MDE Standards address ``individuals
with autism, Alzheimer's, sensory disabilities, cognitive
disabilities, and bariatric patients,'' and noted that while it
could not accommodate those comments in this round of rulemaking, it
committed to ``address[ing] other barriers in future updates to the
MDE Standards.'' \4\ Therefore, while the Department appreciates
commenters' viewpoints, it declines to update this part to account
for additional disabilities or factors at this time.
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\3\ See, e.g., 36 CFR part 1195, appendix (revised as of July 1,
2017) (discussing, in M306, requirements for communication necessary
for performance of a diagnostic procedure).
\4\ Id. at 2812.
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The Department also received many comments from diverse
stakeholders on whether the Department should apply the Access
Board's MDE Standards to medical equipment that is not used for
diagnostic purposes. Many commenters supported applying the MDE
Standards to nondiagnostic medical equipment, especially equipment
used for therapeutic or treatment purposes. Other commenters urged
the Department not to expand the requirements beyond MDE at this
time. Some commenters also stated that the Department lacks
technical expertise to unilaterally impose technical standards on a
broad range of nondiagnostic medical equipment. One commenter
recommended that if the Department adopts enforceable standards
regarding the accessibility of nondiagnostic medical equipment, the
Department should first explain its proposed approach in detail to
allow for additional public input on the types of nondiagnostic
medical equipment to which those standards would apply.
The Department agrees that any extension of the MDE Standards to
nondiagnostic medical equipment, or the adoption of any new
standards for nondiagnostic medical equipment, should be informed by
the Access Board's extensive knowledge and technical acumen, as well
as by additional public input. If, in the future, the Department
adopts enforceable technical standards concerning the accessibility
of nondiagnostic medical equipment, it will consult with the Access
Board and other Federal partners and make clear to covered entities
what types of equipment will be required to meet those standards.
But because the Access Board has not developed specific technical
standards regarding the accessibility of nondiagnostic medical
equipment, and given the need to provide public entities with
clarity about the scope of any standards the Department is adopting,
the Department declines to adopt enforceable technical standards for
nondiagnostic medical equipment or otherwise extend the Access
Board's standards at this time.
The Access Board's standards apply only to equipment that is
used in, or in conjunction with, medical settings by health care
providers for diagnostic purposes. As noted in the NPRM, equipment
used for both diagnostic purposes and other purposes (such as
therapeutic or treatment purposes) is MDE if it otherwise meets this
definition, and must therefore meet the requirements for accessible
MDE set forth in subpart I of this part. The Department will
continue to consider whether to conduct further rulemaking in the
future.
Several commenters emphasized the importance of accessibility in
the provision of health care services that use medical equipment,
whether that equipment is used for diagnostic purposes or not. The
Department clarifies that public entities are already obligated to
ensure that their services, programs, and activities do not exclude
or discriminate against individuals with disabilities and are
readily accessible to and usable by individuals with
disabilities.\5\ This obligation encompasses the provision of health
care services by public entities, whether those services use MDE or
not.
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\5\ See, e.g., Sec. Sec. 35.130 and 35.150.
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Subpart I--Accessible Medical Diagnostic Equipment
The Department is creating a new subpart in its title II
regulation. Subpart I of this part addresses the accessibility of
public entities' medical diagnostic equipment.
Section 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 provider
also cannot require a patient with a disability to bring someone
along with them to help during an examination if similar
requirements are not imposed on patients without disabilities. A
patient may choose to bring another person such as a friend, family
member, or personal care aide to an appointment, but regardless, the
provider may need to provide reasonable assistance to enable the
patient to receive medical care.\6\ Such assistance may include, for
example, helping a person who uses a wheelchair to transfer from
their wheelchair to the examination table or diagnostic chair.\7\
The provider cannot require the person accompanying the patient to
assist.
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\6\ See id. Sec. 35.130(b)(7).
\7\ 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/resources/medical-care-mobility/ [https://perma.cc/UH8Y-NZWL].
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Individuals and groups, including disability advocacy
organizations, individuals with disabilities and their family
members, health care providers and associations, and manufacturers
of medical equipment, submitted comments on the Department's
proposed rule. Overwhelmingly, the commenters expressed strong
support for adopting the MDE Standards and requiring public entities
to ensure that their services, programs, and activities offered
through or with the use of MDE are accessible to individuals with
disabilities.
Many commenters described the importance of accessible MDE and
provided firsthand accounts of instances when they or their family
members were unable to receive health care or received substandard
health care because providers lacked accessible examination tables,
weight scales, or radiological or other diagnostic equipment.
Several commenters recounted instances when they or their family
members were unable to receive preventative health care services
such as mammograms, prostate examinations, or dental examinations.
Other commenters noted that they could not have their weight checked
regularly because of the lack of accessible weight scales, resulting
in health care risks such as a failure to provide the amount of
medication required. Some commenters described entities'
expectations that individuals with mobility disabilities would be
accompanied by companions to physically transfer them onto MDE.
Disability advocacy groups also shared representative accounts
submitted by their members, documenting the harms experienced by
people with disabilities due to health care providers' lack of
accessible MDE.
The Department agrees with commenters that accessible MDE is
vital for health equity, person-centered care, and access to medical
care for patients with disabilities. As discussed in the NPRM,
research has documented that the scarcity of accessible MDE
constitutes a significant barrier to access to care for patients
with disabilities, resulting in a failure to provide adequate
preventative health care and diagnostic examinations.\8\
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\8\ 89 FR 2186.
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As explained in more detail in the NPRM, the Department is aware
of many instances in which people with disabilities were denied
access to needed care, were subjected to demeaning situations, or
received substandard care because health care providers lacked
accessible MDE.\9\ The Department has taken action to enforce the
ADA as it applies to the provision of health care services.\10\
However, the lack of technical standards for accessible MDE before
the Access Board issued the MDE Standards in 2017, and the fact
that, until now, the MDE Standards were not enforceable under title
II, mean that these circumstances remain all too prevalent. Section
35.210 will help clarify public entities' nondiscrimination
obligations as
[[Page 65191]]
they pertain to services, programs, and activities that use MDE.
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\9\ Id.
\10\ 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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Section 35.211 Newly Purchased, Leased, or Otherwise Acquired
Medical Diagnostic Equipment
For MDE that public entities purchase, lease, or otherwise
acquire after October 8, 2024, which is 60 days after the
publication of the final rule in the Federal Register, the
Department is adopting an approach that draws on the approach that
the existing title II regulation applies to new construction and
alterations of buildings and facilities.\11\ Section 35.211(a)
requires that all MDE that a public entity purchases, leases, or
otherwise acquires more than 60 days after publication must be
accessible, unless and until the scoping requirements set forth in
more detail in Sec. 35.211(b) are satisfied.
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\11\ See generally Sec. 35.151.
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As in the fixed or built environment, the accessibility of MDE
is 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, the public
entity is not required to continue to obtain accessible MDE when it
purchases, leases, or otherwise acquires MDE after the final rule's
effective date. However, a public entity may choose to acquire
additional accessible MDE even after it satisfies the scoping
requirements.
Section 35.211(a) Requirements for Newly Purchased, Leased, or
Otherwise Acquired Medical Diagnostic Equipment
Paragraph (a) adopts the January 9, 2017, version of the Access
Board's MDE Standards that was codified on July 1, 2017 (with the
exception of the Access Board's sunset provisions, as explained in
the section-by-section analysis of the definition of the term
``Standards for Accessible Medical Diagnostic Equipment'' in Sec.
35.104), as the standard governing whether MDE is accessible, and
establishes one of the key requirements of subpart I of this part:
that subject to applicable limitations and defenses, all MDE that
public entities purchase, lease, or otherwise acquire more than 60
days after the publication of the final rule must meet the MDE
Standards unless and until the public entity already has a
sufficient amount of accessible MDE to satisfy the scoping
requirements in Sec. 35.211(b).
As explained in more detail in section II.C of the preamble to
the final rule (``Overview of Access Board's MDE Standards''), the
MDE Standards include technical criteria for equipment that is used
when patients are (1) in a supine, prone, or side-lying position;
(2) in a seated 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 contain
requirements for equipment to be compatible with patient lifts where
a patient would transfer under positions (1) and (2).
Consistent with the language in 29 U.S.C. 794f(b), MDE covered
under subpart I of this part 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. As noted in the section-by-section analysis of Sec.
35.104, subpart I of this part 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 public entities'
health care services, programs, and activities.
In the NPRM, the Department sought comment on whether 60 days is
an appropriate amount of time for these requirements to take effect.
A number of commenters said 60 days is the right amount of time,
including one commenter who recommended no more than 60 days and
another who recommended no less than 60 days. However, a few
commenters thought 60 days would not be enough time to comply with
these requirements. Those commenters expressed concern that it could
be difficult for public entities to obtain accessible MDE and carry
out this section's requirements within 60 days, and that a 60-day
requirement would be too burdensome for small or under-resourced
public entities in particular. One commenter said 60 days is the
right amount of time for MDE that does not require construction, but
that a longer timeframe should apply to MDE that necessitates
construction in the room in which the MDE will be located, such as
magnetic resonance imaging (``MRI'') scanners. One commenter
recommended 180 days, not 60 days, to give public entities time to
carry out this section's requirements, and asked the Department to
clarify whether public entities will be expected to comply with the
scoping requirements set forth in Sec. 35.211(b) upon the effective
date of the final rule or later. The commenter recommended that
public entities be given at least two years from the final rule's
publication date to achieve compliance with the scoping
requirements.
The Department agrees with the majority of commenters who
commented on this issue and concludes that 60 days is the
appropriate amount of time for the requirements set forth in Sec.
35.211(a) to take effect because it strikes an appropriate balance
between the immediate and urgent health care needs of individuals
with disabilities and the constraints facing public entities.
Therefore, all MDE that public entities acquire more than 60 days
after publication shall meet the MDE Standards, unless and until the
scoping requirements in Sec. 35.211(b) are met. In response to the
commenters who are concerned that a 60-day time period will be too
burdensome, the Department notes that public entities are not
required to take steps that would result in an undue burden or a
fundamental alteration, as set forth in more detail in Sec.
35.211(e). The Department also notes that public entities have been
on notice since the NPRM was issued in January 2024 that the
Department was considering imposing this requirement, giving them
time to prepare to carry out the requirements of subpart I of this
part.
The Department also clarifies that, once it takes effect 60 days
after publication, Sec. 35.211(a) will only require MDE to meet the
MDE Standards if it is acquired after the effective date (subject to
the scoping requirements and the other requirements and limitations
of subpart I of this part). That means, for example, that if a
public entity does not acquire any MDE until 180 days after
publication, the MDE that the entity acquires 180 days after
publication will be required to meet the MDE Standards (assuming the
entity has not already met the scoping requirements and no
limitations apply), but the entity's existing MDE will not be
required to meet the MDE Standards. In other words, although the
timeframe set forth in Sec. 35.211(a) is 60 days after publication,
the question of when a particular public entity's MDE will be
required to meet the MDE Standards will depend on when the entity
acquires MDE after publication, which could be more than 60 days
after publication. This reinforces the Department's conclusion that
60 days is the appropriate amount of time for Sec. 35.211(a) to
take effect.
The Department also clarifies that to ``purchase, lease, or
otherwise acquire'' MDE more than 60 days after publication means to
acquire MDE by any means. A few commenters requested that the
Department make clear that leases include lease renewals, and that
acquisitions include acquisitions in any form, including, but not
limited to, acquisitions via gifts or loans, as well as both
temporary and permanent acquisitions. To avoid any confusion, the
Department is clarifying in the Sec. 35.211(a) regulatory text that
the term ``lease'' includes the renewal of existing leases. The
Department's intent is that the term ``lease'' includes lease
renewals, and it is modifying the Sec. 35.211(a) regulatory text to
avoid any confusion. The Department also agrees with commenters that
to ``purchase, lease, or otherwise acquire'' MDE in the context of
subpart I of this part means to acquire MDE through any means,
including, but not limited to, acquisitions via donations or loans,
as well as both temporary and permanent acquisitions. This intent is
reflected by the term ``otherwise acquire'' in the regulatory text.
Section 35.211(b) Scoping
Section 35.211(b) establishes 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.\12\ The MDE Standards issued by the
Access Board
[[Page 65192]]
contain technical requirements, but they do not specify scoping
requirements. Rather, they state that ``[t]he enforcing authority
shall specify the number and type of diagnostic equipment that are
required to comply with the MDE Standards.'' \13\ 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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\12\ See 36 CFR part 1191, appendix B, section 213.3.1.
\13\ 36 CFR part 1195, appendix, section M201 (revised as of
July 1, 2017).
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Paragraphs (b)(1) through (3) of Sec. 35.211 lay out scoping
requirements for this section. The scoping requirements that the
Department is establishing 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.\14\ 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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\14\ See 36 CFR part 1191, appendix B, sections 208.2.2,
223.2.1, 223.2.2.
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The Department drew on the following approaches from the 2010
ADA Standards in formulating the scoping requirements for the final
rule. 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.\15\ 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.\16\ 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
sleeping room, provide specific accessibility features for patients
with mobility disabilities.\17\ 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.\18\
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.\19\ Several of these approaches are reflected in
the scoping requirements adopted in paragraph (b) of Sec. 35.211
for MDE.
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\15\ See Sec. 35.151(h); 36 CFR part 1191, appendix B, section
223.1.
\16\ See 36 CFR part 1191, appendix B, section 223.1.1.
\17\ See id. section 223.2.1.
\18\ See id. section 223.2.2.
\19\ See id. section 208.2.2.
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Paragraph (b)(1) of Sec. 35.211 provides the general
requirement for physicians' 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 must have 2 examination chairs
(10 percent of the total) that comply with the MDE Standards. In a
medical practice with five examination chairs, the practice must
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 must be
accessible. However, these requirements do not apply until an entity
newly acquires MDE, as explained in the section-by-section analysis
of Sec. 35.211(a).
Paragraph (b)(2) of Sec. 35.211 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 be required 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. As with paragraph
(b)(1), the scoping requirements of paragraph (b)(2) do not apply
until an entity newly acquires MDE.
The Department received many comments on the scoping percentages
in Sec. 35.211(b)(1) and (2). Many commenters acknowledged the need
to provide accessible MDE and supported the inclusion of scoping
requirements. Some commenters expressed concern that the scoping
requirements could have a profound financial and operational impact
on small hospitals, potentially leading to reduced availability of
essential diagnostic services in rural and underserved areas;
expressed concern about the amount of accessible MDE currently
available on the market; or requested more time to acquire MDE that
meets the MDE Standards and resources to help health care providers
comply. Many other commenters, including disability advocates and
disability rights organizations, voiced concerns that the scoping
provisions are too low to meet demand among people with mobility
disabilities. Without a requirement that a larger percentage of MDE
or 100 percent of MDE be accessible, they asserted that patients
with disabilities will have fewer scheduling options or longer wait
times than nondisabled patients. One commenter also stated that it
would be simpler and clearer to require all newly acquired MDE to be
accessible. Another commenter noted that while it would be ideal for
all MDE to be accessible, this would place an undue burden on health
care providers, and the needs of individuals with disabilities can
be fully addressed if health care providers have some accessible MDE
and engage in proper planning to prevent delays and denials in the
delivery of health care services.
Many of the commenters who viewed the scoping requirements as
too low objected to modeling the scoping requirements 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. Those commenters cited
factors such as the prevalence of disability; the belief that
accessible MDE is more in demand than accessible parking spaces; and
the fact that, unlike accessible parking spaces, accessible MDE can
also be used by nondisabled individuals. Some commenters suggested
instead modeling the scoping requirements on the ``replacement
rule'' that applies to transportation services under title II, which
requires that all newly purchased and leased vehicles be readily
accessible to and usable by people with disabilities.\20\ Other
commenters suggested different approaches, such as imposing higher
scoping requirements for MDE that is used to provide preventive
services outlined by the U.S. Preventive Services Task Force, or
imposing higher scoping requirements for MDE that is used more
frequently.
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\20\ See 49 CFR part 37, subpart D.
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While several commenters opposed having different scoping
requirements in Sec. 35.211(b)(1) and (2), others supported the
approach of imposing a higher scoping requirement in Sec.
35.211(b)(2) (for facilities that specialize in treating conditions
that affect mobility) than in Sec. 35.211(b)(1) (for other
facilities). Other commenters noted the importance of considering
the department and type of facility in formulating the scoping
requirements.
The Department appreciates all of the comments on the scoping
requirements in Sec. 35.211(b). The Department acknowledges the
concerns of commenters who believe health care providers might have
difficulty complying with the scoping requirements, as well as the
countervailing concerns of commenters seeking more stringent scoping
requirements. As discussed in section III.A.2 of the preamble to the
final rule, the Department certifies that the final rule will not
have a significant impact on a substantial number of small entities.
While the Department appreciates that the final rule may result in
increased demand for accessible MDE, commenters did not submit data
to suggest that the market cannot bear the additional demand. In any
case, if equipment that meets the MDE Standards is unavailable, the
fundamental alteration or undue burdens limitations may apply, as
explained in Sec. 35.211(e).
The Department recognizes that there are many potential models
on which it could base its scoping requirements and
[[Page 65193]]
acknowledges that the needs underlying the accessible parking model
are not perfectly aligned with the needs underpinning accessible
MDE. However, the Department continues to believe that the use of
MDE is analogous to the use of parking spaces at rehabilitation
facilities because, as with parking spaces, several different
patients with mobility disabilities can use the same piece of MDE in
a day.
As explained in the NPRM, 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, which requires that 100
percent of patient sleeping rooms in similar facilities provide
specific accessibility features for patients with mobility
disabilities. The Department concluded that the time-limited use of
MDE is more analogous to the use of parking spaces at a
rehabilitation facility than to the use of sleeping rooms because,
unlike MDE, sleeping rooms are generally occupied for all or a
significant part of the day. Thus, Sec. 35.211(b) draws on the 2010
ADA Standards' scoping requirements by requiring, in Sec.
35.211(b)(1), 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, in Sec. 35.211(b)(2), 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. Imposing higher scoping
requirements for facilities that specialize in the treatment of
conditions that affect mobility has proven to be a workable
framework in the context of the 2010 ADA Standards' scoping
requirements, and the Department believes this will also be a
helpful framework for the MDE scoping requirements.
In view of demands on provider entities,\21\ the Department will
not increase the scoping requirements beyond 10 percent for Sec.
35.211(b)(1) and 20 percent for Sec. 35.211(b)(2) at this time. The
Department does not agree with several commenters who opined that
the use of MDE is analogous to the use of vehicles covered by the
ADA title II transportation accessibility requirements. MDE often
cannot be retrofitted to be accessible with the same ease or cost
ratio as transportation retrofits. For example, inaccessible weight
scales typically do not have large platforms that are required for
wheelchair access. Inaccessible examination tables are usually fixed
height ``box'' tables with static bases, and possibly drawers, that
cannot easily be replaced with adjustable mechanisms.\22\ The
Department therefore declines to adopt an approach akin to the
``replacement rule'' that applies in the title II transportation
accessibility context, which would require that 100 percent of newly
acquired MDE be accessible.\23\ And although one commenter suggested
relying on the U.S. Preventive Services Task Force recommendations,
the Department does not believe that these recommendations would
serve as a useful basis for the scoping requirements in Sec.
35.211(b). The U.S. Preventive Services Task Force makes evidence-
based recommendations on clinical preventive services and health
promotion in primary care settings,\24\ but those recommendations
are not primarily about the use of MDE and therefore do not serve as
a useful model for scoping requirements related to MDE.
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\21\ See FRIA at 69-70 (considering the costs of increasing the
scoping requirements in Sec. 35.211(b)(1) and (2) to 20 percent and
40 percent respectively, as well as the costs of requiring that 100
percent of newly acquired MDE meet the MDE Standards and concluding
that those alternative potential scoping requirements could more
than double the annualized costs of the final rule).
\22\ ADA Nat'l Network, Accessible Medical Examination Tables
and Chairs (2017), https://adata.org/factsheet/accessible-medical-examination-tables-and-chairs [https://perma.cc/Y6MR-9QGL].
\23\ See 49 CFR part 37, subpart D.
\24\ See U.S. Preventive Services Task Force, About the USPSTF,
https://www.uspreventiveservicestaskforce.org/uspstf/about-uspstf
[https://perma.cc/FTL2-TLXX].
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The Department also does not believe it is necessary to impose
higher scoping requirements for MDE that is used more frequently
than other types of MDE, as some commenters suggested. Providers are
likely to have more units of the types of MDE that are used more
frequently, and the more units of MDE a provider has, the more units
will need to be accessible according to the scoping requirements.
The Department therefore will not increase the scoping
requirements set forth in Sec. 35.211(b) at this time or eliminate
the distinction between the general scoping requirements in Sec.
35.211(b)(1) and the scoping requirements for facilities that
specialize in treating conditions that affect mobility in Sec.
35.211(b)(2). The Department notes that, because paragraph (b)
requires that at least one unit of each type of MDE in use meet the
MDE Standards irrespective of the percentage requirements, some
smaller health care providers will be required to have a proportion
of accessible MDE that exceeds 10 percent for paragraph (b)(1) or 20
percent for paragraph (b)(2). For example, barring an applicable
limitation or defense, a provider with two dental chairs will be
required to have at least one dental chair that meets the MDE
Standards, which is 50 percent of the provider's total.
The Department also clarifies that the scoping requirements set
forth in Sec. 35.211(b) must be read in conjunction with the
requirements set forth elsewhere in subpart I of this part. Section
35.210 prohibits public entities from excluding, denying benefits
to, or otherwise discriminating against people with disabilities in
services, programs, or activities that use MDE, and Sec. 35.212
requires that each service, program, or activity that uses MDE be
readily accessible to and usable by people with disabilities in its
entirety, independent of the scoping requirements for newly acquired
MDE set forth in Sec. 35.211(b). That means, for example, that
denying a physical examination to a patient with a disability
because of the lack of accessible MDE may violate the
nondiscrimination obligation set forth in Sec. 35.210, even if the
scoping requirements set forth in Sec. 35.211(b)(1) and (2) have
not yet been triggered by the new acquisition of MDE. As another
example, if, even after a provider complies with the scoping
requirements set forth in Sec. 35.211(b)(1) and (2), patients with
disabilities have significantly fewer scheduling options than
nondisabled patients, that could implicate the obligation in Sec.
35.212 to make public entities' services, programs, and activities
readily accessible to and usable by individuals with disabilities.
Public entities may determine that the most effective way to carry
out the obligations set forth in Sec. Sec. 35.210 and 35.212 will
be to acquire additional accessible MDE beyond the scoping
requirements set forth in Sec. 35.211(b)(1) and (2).
Finally, one commenter requested clarification on whether the
required number of units of accessible MDE should be rounded up or
down if application of the scoping percentages does not yield a
whole number. If application of the scoping percentages yields a
number less than one, the number will need to be rounded up to one
because Sec. 35.211(b)(1) and (2) require that no fewer than one
unit of each type of equipment in use meet the MDE Standards. If
application of the scoping percentages yields a number greater than
one, the standard mathematics rule on rounding decimals to whole
numbers applies to the scoping requirements in Sec. 35.211(b)(1)
and (2).\25\
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\25\ That is, numbers that end in a digit less than five are
rounded down to the nearest whole number, and numbers that end in a
digit greater than or equal to five are rounded up to the nearest
whole number. For example, if a program that did not specialize in
treating conditions that affect mobility used four units of MDE,
then it would be required to have at least one unit of accessible
MDE because, even though 0.4 units (10 percent of four) would be
rounded down to zero, the final rule requires that each service,
program, or activity have at least one unit of accessible MDE. If
there were 12 units of MDE in use, the program would be required to
have one unit of accessible MDE because 1.2 (10 percent of 12) is
rounded down to one. If there were 15 units of MDE in use, the
program would be required to have two units of accessible MDE
because 1.5 (10 percent of 15) is rounded up to two.
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Section 35.211(b)(3) addresses facilities or programs with
multiple departments, clinics, or specialties. 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. This
dispersion requirement is analogous to the existing title II ADA
regulation that requires dispersion of accessible sleeping rooms in
medical care facilities that do not specialize in the treatment of
conditions that affect mobility.\26\
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\26\ See Sec. 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 all patient
sleeping rooms in those facilities are required to be accessible.
See 36 CFR part 1191, appendix B, section 223.2.2.
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[[Page 65194]]
Section 35.211(b)(3) does not require that accessible MDE be
dispersed with exact mathematical proportionality, which at times
would be impossible. Section 35.211(b)(3) also does not require
public entities to acquire additional MDE, beyond the amount
specified in paragraphs (b)(1) and (2), to ensure that accessible
MDE is available in every department, clinic, and specialty. This
approach is consistent with many provisions of the 2010 ADA
Standards.\27\ Additionally, if Sec. 35.211(b)(3) were to require
full dispersion across every department, clinic, and specialty, it
could create inconsistency or confusion between the dispersion and
scoping requirements. For example, if a health care program that
operated out of three clinics was required to have two units of
accessible MDE according to the scoping provisions, then if
paragraph (b)(3) required public entities to disperse their
accessible MDE across every department, clinic, and specialty, the
entity could meet the scoping requirements but would nonetheless
violate the dispersion requirements because the two units of
accessible MDE that the scoping provision required would not be
enough to fully disperse across all three clinics. If paragraph
(b)(3) required public entities to disperse fully across every
department, clinic, and specialty, it could also be difficult to
determine whether more precise dispersion requirements had been met.
For example, a clinic may be part of a department and also part of a
specialty (or include providers with multiple specialties), so
determining whether accessible MDE was dispersed with precision
across each department, clinic, and specialty could become complex.
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\27\ See, e.g., 36 CFR part 1191, appendix B, sections 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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Even if a public entity's facility or program with multiple
departments, clinics, or specialties will not be able to disperse
its accessible MDE with mathematical precision across every
department, clinic, and specialty, public entities must still afford
people with disabilities an opportunity to benefit from each type of
medical care that is equal to the opportunity provided to people
without disabilities.\28\ The Department recognizes that it is
critically important for people with disabilities to have access to
all types of medical care. Therefore, public entities are still
required to ensure that all of their services, programs, and
activities are accessible to and usable by individuals with
disabilities, regardless of whether the dispersion provision in
paragraph (b)(3) requires a specific department, clinic, or
specialty to have accessible MDE.
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\28\ See Sec. Sec. 35.130(b)(1)(ii) and 35.150(a).
---------------------------------------------------------------------------
The Department appreciates the comments it received on its
proposed dispersion requirements. Though some commenters supported
the Department's proposed approach to dispersion, many commenters
did not believe the dispersion requirements were sufficient to meet
the needs of individuals with disabilities. These commenters felt
that additional requirements should be added to ensure adequate
dispersion. Commenters proposed a range of different requirements,
including requirements for each department or specialty; for every
floor and building; for each facility; for every subpart of a larger
entity that has the capacity to manage its own booking system; and
for a particular geographic radius. Some commenters also proposed
that each department, clinic, or specialty be required to have one
or two examination tables and weight scales. One commenter supported
a flexible approach to dispersion, whereby accessible MDE would be
made available where it is needed.
For the reasons discussed in the section-by-section analysis of
Sec. 35.211(b), the Department continues to believe that the
approach to dispersion set forth in Sec. 35.211(b)(3) is
appropriate and consistent with existing law. In light of the
demands that increased dispersion requirements would impose on
public entities, the Department is not expanding the dispersion
requirements at this time. However, the Department emphasizes that
compliance with the dispersion requirement does not excuse public
entities from complying with their nondiscrimination obligations
under the existing title II regulation or Sec. Sec. 35.210 and
35.212.
The National Council on Disability, an independent Federal
agency charged with advising the President, Congress, and other
Federal agencies on policies, programs, practices, and procedures
that affect people with disabilities, stated that the Department
should require that as a facility or program acquires accessible
MDE, it should ensure that at least one accessible examination table
and one weight scale are located in every department, clinic, or
specialty. The Department declines to adopt this suggestion so that
public entities will retain the flexibility to determine how they
will comply with the dispersion requirements in Sec. 35.211(b)(3),
in light of each public entity's particular circumstances. Though
the text of Sec. 35.211(b)(3) requires public entities to disperse,
in a proportionate manner, the accessible MDE required by paragraphs
(b)(1) and (2), the Department encourages public entities to
disperse all of their accessible MDE proportionately, where they
have more accessible MDE than paragraphs (b)(1) and (2) require.
Other commenters proposed that the Department require the
dispersion of equipment or personnel other than MDE, such as
wheelchairs that can be used around MRI scanners and patient lifts
or transfer teams, as well as the dispersion of MDE based on weight
or size capacity. The Department declines to adopt requirements for
the other types of dispersion proposed by these commenters at this
time. In this rulemaking, the Department is adopting the January 9,
2017, version of the MDE Standards promulgated by the Access Board
\29\ (with the exception of the sunset provisions, as explained in
the section-by-section analysis of Sec. 35.104) and making those
standards enforceable. The MDE Standards do not include requirements
for wheelchairs, equipment with greater weight or size capacity,
patient lifts, or transfer teams. The Department will relay the
commenters' views to the Access Board for consideration if the
Access Board revises the MDE Standards on this subject in the
future.
---------------------------------------------------------------------------
\29\ 36 CFR part 1195 (revised as of July 1, 2017).
---------------------------------------------------------------------------
Many commenters raised concerns about the burdens that the
approach to dispersion in subpart I of this part could impose on
people with disabilities. These included delays in diagnosis and
care, with the possibility of associated harm to the patient's
health or life; increased wait times; cancelled or rescheduled
appointments; a lack of expertise if patients need to receive some
care from other departments or specialties; less effective
treatment; the need for accessible, affordable transportation to
other locations where accessible MDE is available; a lack of choice
for patients with disabilities about where they will receive care; a
lack of privacy if accessible MDE is located in a shared space; and
embarrassment, humiliation, frustration, stress, and pain.
The Department reiterates that the lack of additional or more
specific dispersion requirements than those set forth in Sec.
35.211(b)(3) does not excuse public entities from complying with
their nondiscrimination obligations under the existing title II
regulation or Sec. Sec. 35.210 and 35.212. If public entities'
dispersion of accessible MDE imposes the burdens on individuals with
disabilities that some commenters described, then that situation
could result in discrimination because the public entity's MDE is
not readily accessible to and usable by persons with disabilities as
required by Sec. 35.210. Likewise, such a situation could result in
the public entity's service, program, or activity in its entirety
not being readily accessible to and usable by patients with
disabilities as required by Sec. 35.212. Public entities are
encouraged to acquire additional accessible MDE and disperse that
MDE across departments, clinics, and specialties to better meet the
needs of patients with disabilities.
One commenter proposed that the Department adopt a specific
limit on wait times to ensure that people with disabilities do not
have to wait significantly longer to access services than people
without disabilities because of the amount of accessible MDE in a
particular location or because patients need to travel to a
different location to use accessible MDE. The Department declines to
adopt a specific wait time limit because whether a particular wait
time is justifiable may depend on the circumstances, including the
overall demand for services and the wait times experienced by
patients without disabilities. However, the Department notes that if
patients with disabilities experience significantly longer wait
times than patients without disabilities seeking comparable services
at comparable times, this could violate Sec. 35.210 or Sec.
35.212.
Other commenters asked the Department to require public entities
to offer and pay for accessible transportation when patients need to
travel to other locations to use accessible MDE. The Department
declines to adopt this requirement at this time because it has
concluded that the requirements set forth elsewhere are sufficient
to address the commenters' concerns. More specifically, a
[[Page 65195]]
failure to provide accessible transportation when patients with
disabilities need to travel to other locations to use accessible
MDE, but nondisabled patients do not need to travel to other
locations to receive care, or a requirement that patients incur
additional costs to use accessible MDE, could violate Sec. 35.210
or Sec. 35.212 or more generalized nondiscrimination requirements
in the existing title II regulation.\30\
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\30\ See, e.g., Sec. Sec. 35.130(b)(1)(ii) and (f) and
35.150(a).
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Many commenters also raised concerns about the burdens that the
approach to dispersion in Sec. 35.211(b)(3) may impose on public
entities. Some commenters stated that it might be difficult or
impossible for some types of MDE to be moved, but commenters also
noted that some types of MDE might be more portable or easily
shared. A few commenters stated that there might not be sufficient
space in some existing medical facilities for accessible MDE. Other
commenters noted potential difficulties that may arise if public
entities share accessible MDE between clinics or departments. These
include delays and increased wait times; the need to identify,
locate, move, and track accessible MDE; the need to transport
patients; the need to recalibrate MDE after it is moved; unnecessary
work for staff to locate or move accessible MDE if the patient who
needed it has to reschedule; conflicts among multiple patients or
departments who need the accessible MDE; last-minute needs for
accessible MDE; and the need to determine how to provide care if
shared accessible MDE is not available. While the Department
acknowledges and appreciates the concerns raised by these
commenters, it declines to change the dispersion requirement of
paragraph (b)(3) because, for all of the reasons already stated, it
finds that the current requirement is appropriate. Further, some of
the challenges noted by these commenters might be mitigated by
exercising the flexibility public entities retain to determine how
they will meet the dispersion and nondiscrimination requirements in
subpart I of this part, so long as they satisfy the minimum scoping
requirements in Sec. 35.211(b)(1) and (2).
Commenters also stated that, to share or move accessible MDE,
patients would need to provide notice of their need for accessible
MDE when booking an appointment and opined that booking systems and
public information should clearly indicate where and when accessible
MDE is available. At this time, the Department declines to adopt
additional procedural requirements that certain information about
the availability of accessible MDE be made available or that the
need for accessible MDE be recorded as part of the booking process
because public entities should have flexibility to meet the
requirements of subpart I of this part in a manner that is
appropriate to their resources and systems. However, it may be
helpful or necessary for public entities to request information
about patients' needs and make information about accessible MDE
available to patients and staff where feasible. Doing so is likely
to better position public entities to provide care in a
nondiscriminatory manner, while enabling patients with disabilities
to make informed decisions about their care. Providing information
to staff about the availability of accessible MDE may also enable
public entities to meet their other obligations under subpart I of
this part, including the obligation in Sec. 35.213 to ensure that
their staff are able to carry out the program accessibility
obligation set forth in Sec. 35.212.
The Department recognizes there may be situations in which a
public entity's facility or program shares one piece of a particular
type of accessible MDE among all departments, clinics, or
specialties. In a small facility or program with a limited number of
departments, clinics, or specialties in the same building, that
situation may provide equal access for all patients with
disabilities who need accessible MDE. However, depending on the
circumstances, it may be necessary or advisable to have at least one
unit of accessible MDE in each department, clinic, or specialty, so
that patients with disabilities do not need to traverse between
departments, clinics, or specialties for care. The Department
recognizes the varying circumstances of different public entities
and health care settings. Whether a public entity can share
accessible MDE between departments, clinics, or specialties and
still carry out its obligations under subpart I of this part will
depend on the circumstances.
Public entities must ensure that the dispersion of their
accessible MDE does not discriminate against people with
disabilities. If a public entity requires a patient with a
disability who needs accessible MDE to use the MDE of another
department, clinic, or specialty, or to use MDE in a different
location, the public entity must ensure that the MDE and the
service, program, or activity in its entirety are readily accessible
to and usable by the patient, as required by Sec. Sec. 35.210 and
35.212. Factors to consider in determining whether this standard has
been met may include, among other things, whether the MDE is readily
available and not a significant distance from where the patient is
seeking care; whether changing locations during the patient visit
significantly increases wait times; whether the patient is required
to be undressed or partially dressed to use the MDE (if, for
example, the patient has to go to a different part of the same
building to use the accessible MDE); and whether the public entity
provides assistance in moving between locations.
A public entity may be able to take other measures to ensure
that its MDE and its services, programs, and activities in their
entirety are readily accessible to and usable by patients with
disabilities. For example, it could offer home visits that provide
equal access to care or accessible transportation to patients with
disabilities at no cost to them within a reasonable timeframe.
Section 35.211(c) Requirements for Examination Tables and Weight
Scales
Section 35.211(c) sets forth specific requirements for
examination tables and weight scales. Paragraph (c)(1) requires
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 MDE Standards, unless the entity already has
one. Similarly, 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 MDE Standards, unless the entity
already has one. This requirement is subject to the other
requirements and limitations set forth in Sec. 35.211. Thus, Sec.
35.211(c) 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, as explained in 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.
The Department received many comments in support of the
requirements set forth in Sec. 35.211(c), including comments from
public entities and individuals with disabilities. Many commenters
provided firsthand accounts of being unable to receive health care
or receiving substandard care because of a lack of accessible
examination tables or weight scales. Commenters also described
receiving incomplete physical examinations because they could not
transfer to an examination table, or forgoing routine examinations,
such as abdominal palpations and breast examinations, due to a lack
of accessible examination tables. Some noted that many medicines,
including chemotherapy and anesthesia, are dosed based on weight,
yet a lack of accessible weight scales makes it impossible for many
people with disabilities to be accurately weighed. Similarly,
disability advocacy groups shared representative accounts of harms
that people with disabilities have experienced due to the
inaccessibility of examination tables and weight scales.
Some commenters expressed concern that the requirements set
forth in Sec. 35.211(c) are insufficient. A few commenters urged
the Department to require public entities to obtain more than one
examination table or weight scale, particularly in facilities that
focus on conditions that affect mobility. Other commenters asked the
Department to require one examination table and weight scale per
department, clinic, or specialty. The Department clarifies that the
requirements in Sec. 35.211(c) must be viewed in conjunction with
the other requirements of subpart I of this part. For example,
although Sec. 35.211(c) requires public entities to obtain at least
one accessible examination table and at least one accessible weight
scale within two years, public entities may be required to obtain
more than one examination table or weight scale based on the scoping
requirements set forth in Sec. 35.211(b). In addition, public
entities are subject to the nondiscrimination and program access
obligations in Sec. Sec. 35.210 and 35.212, and the acquisition of
multiple accessible examination tables or weight
[[Page 65196]]
scales may be the most effective way to satisfy those obligations.
The Department requested public comment on the potential impact
of the requirements in Sec. 35.211(c) on people with disabilities
and public entities. Several disability advocacy groups wrote that
there are accessible weight scales on the market at varying costs,
and that covered entities can also purchase or lease refurbished
weight scales. The National Council on Disability commented that the
economic impact on public entities will be modest and will be offset
by the positive economic impact of more people being able to access
preventative care. One commenter who uses a wheelchair noted that
frequent delays during medical appointments due to a shortage of
accessible examination tables and weight scales cost her money by
preventing her from working.
Offering a different perspective, a few commenters expressed
concern that it will be too expensive or logistically burdensome for
providers to acquire the accessible MDE that Sec. 35.211(c)
requires. Some commenters suggested that the Department help
providers pay for accessible MDE, including accessible examination
tables and weight scales.
While the Department acknowledges the concerns of health care
providers that will be required to carry out the obligations set
forth in Sec. 35.211(c), giving providers two years to meet the
requirement for examination tables and weight scales, in particular,
will improve access to basic diagnostic services for individuals
with disabilities, while permitting providers to plan for the costs.
Many of the comments that the Department received that describe the
experiences of people with disabilities demonstrate the need for
this requirement and the harm that a lack of accessible examination
tables and weight scales can cause.
Regarding commenters' concerns about the cost of compliance, the
Department does not currently operate a grant program to assist
public entities in complying with the ADA. However, the Department
notes that, pursuant to Sec. 35.211(e), public entities are not
required to take any action that would result in a fundamental
alteration in the nature of a service, program, or activity, or in
undue financial and administrative burdens. Given the availability
of these limitations, the Department believes it is appropriate to
retain the requirements set forth in Sec. 35.211(c).
Regarding whether two years is an appropriate amount of time for
entities to comply with the requirements in Sec. 35.211(c),
commenters had diverse perspectives. While many commenters agreed
with the Department's choice of two years, some, including
individuals with disabilities, the National Council on Disability,
and disability advocacy groups, stated that two years is too long.
Others stated that two years is not long enough for public entities
to comply with this requirement, particularly if entities have
limited resources or if equipment is not readily available. Some
commenters suggested a phased implementation approach.
Given the health disparities and barriers to care facing
individuals with disabilities,\31\ and the importance of examination
tables and weight scales for the provision of basic health care
services, the Department does not believe an extension of the two-
year requirement or a phased implementation period for particular
types of public entities is warranted. The fundamental alteration
and undue burdens provisions account for the difficulty that some
entities might have complying with the requirements of subpart I of
this part.
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\31\ See C. Brooke Steele et al., Prevalence of Cancer Screening
Among Adults With Disabilities, United States, 2013, 14 Preventing
Chronic Disease (Jan. 2017), https://www.cdc.gov/pcd/issues/2017/16_0312.htm [https://perma.cc/T36Y-NCJM] (finding disparate access
to cancer screenings); Gloria Krahn, Persons with Disabilities as an
Unrecognized Health Disparity Population, 105 Amer. J. Pub. Health
198 (Apr. 2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4355692/ [https://perma.cc/J8E4-J63T] (finding higher prevalence
of obesity and cardiovascular diseases); see also Michael Karpman et
al., QuickTake: Even with Coverage, Many Adults Have Problems
Getting Health Care, with Problems Most Prevalent Among Adults with
Disabilities, Urban Inst. Health Pol'y Ctr. (Sept. 2015), https://apps.urban.org/features/hrms/quicktakes/Many-Adults-Have-Problems-Getting-Health-Care.html [https://perma.cc/V6GB-AEPH]; Carrie
Henning-Smith et al., Delayed and Unmet Need for Medical Care Among
Publicly Insured Adults with Disabilities, 51 Med. Care 1015 (Nov.
2013), https://pubmed.ncbi.nlm.nih.gov/24113815/ [https://perma.cc/KSY2-DGEV]; Amanda Reichard et al., Prevalence and Reasons for
Delaying and Foregoing Necessary Care by the Presence and Type of
Disability Among Working-Age Adults, 10 Disability & Health J. 39
(Jan. 2017), https://pubmed.ncbi.nlm.nih.gov/27771217/ [https://perma.cc/V7D7-LCQK]; Michelle Stransky et al., Provider Continuity
and Reasons for Not Having a Provider Among Persons With and Without
Disabilities, 12 Disability & Health J. 131 (Jan. 2019), https://pubmed.ncbi.nlm.nih.gov/30244847/ [https://perma.cc/2LSR-PEGJ];
Sarah Bauer et al., Disability and Physical and Communication-
Related Barriers to Health Care Related Services Among Florida
Residents: A Brief Report, 9 Disability & Health J. 552 (July 2016),
https://pubmed.ncbi.nlm.nih.gov/27101882/ [https://perma.cc/YH6F-22UW] (finding barriers to access to care).
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The Department also does not believe a period shorter than two
years for compliance with Sec. 35.211(c) is warranted. Although the
Department recognizes that individuals with disabilities face urgent
health care needs, the Department must also consider the ability of
entities to budget for and obtain accessible examination tables and
weight scales under a feasible timeframe. Given all of these
factors, the Department finds it appropriate to impose a two-year
timeline for complying with the requirements for examination tables
and weight scales in Sec. 35.211(c).
The Department notes, however, that even before the two-year
requirement goes into effect, public entities are required to make
their services, programs, and activities, including those that use
MDE, accessible to people with disabilities. Even before the two-
year deadline, if an entity denies a physical examination or fails
to take an accurate weight because of a lack of an accessible
examination table or weight scale, that may implicate the
nondiscrimination obligation set forth in Sec. 35.210 and the
program access obligation set forth in Sec. 35.212, as well as the
obligations set forth in the existing title II regulation.
Some commenters, including a State entity, the National Council
on Disability, and multiple disability advocacy groups, expressed
concern that, other than examination tables and weight scales,
public entities are not required to obtain additional types of MDE
within a specified period of time. The Department imposed a two-year
requirement for examination tables and weight scales because those
two types of equipment are very common among primary care providers,
important for a range of basic diagnostic health services, and
relatively attainable compared to more expensive accessible imaging
equipment.\32\ Many people with disabilities are unable to receive
even the most basic health care services because of inaccessible
examination tables and weight scales. In view of demands on provider
entities, particularly small practices and rural facilities, the
Department will not require public entities to obtain accessible MDE
other than examination tables and weight scales within two years.
Public entities will, however, be required to ensure that other
types of MDE are accessible when they are acquired in accordance
with Sec. 35.211(a), and they will be required to comply with
Sec. Sec. 35.210 and 35.212. And as discussed elsewhere in this
appendix, the most effective way to carry out the requirements set
forth in Sec. Sec. 35.210 and 35.212 may be to acquire multiple
types of accessible MDE, not only examination tables and weight
scales.
---------------------------------------------------------------------------
\32\ See Access Board, Access Board Review of MDE Low Height and
MSRP (May 23, 2023), https://www.regulations.gov/document/ATBCB-2023-0001-0002 [https://perma.cc/WU3U-DP65] (listing available
examination table models that meet the height requirements of the
MDE Standards and their retail prices). On the affordability of
accessible examination tables and weight scales compared to imaging
equipment, see 82 FR 2829 (stating that commenters were concerned
about immediate compliance with the MDE Standards for ``more
expensive imaging equipment'' compared to other accessible MDE). See
also Block Imaging, 2024 Mammography Price Guide, https://www.blockimaging.com/bid/95356/digital-mammography-equipment-price-cost-info [https://perma.cc/2STC-34VW].
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Section 35.211(d) Equivalent Facilitation
Paragraph (d) of Sec. 35.211 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 provision applies only
where the use of the alternative designs, products, or technologies
results in substantially equivalent or greater accessibility and
usability of the health care service, program, or activity 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
require. The responsibility for demonstrating equivalent
facilitation rests with the public entity.
Several commenters wrote in support of the equivalent
facilitation provision in Sec. 35.211(d). A couple of commenters
[[Page 65197]]
suggested that the Department clarify that use of equivalent
facilitation must not result in improved access to one group of
people with disabilities at the expense of reduced access for
others. The Department agrees that this provision does not apply if
the use of an alternative design, product, or technology would make
the health care service, program, or activity less accessible or
usable for individuals with disabilities (or any group of
individuals with disabilities) than the MDE Standards require.
The same commenters also recommended that the Department require
entities to individually assess the preferences and needs of people
with disabilities and receive informed consent before using an
alternative option. The Department declines to require entities to
individually assess the preferences and needs of people with
disabilities and receive informed consent before using alternative
designs, products, or technologies. This provision is modeled on
existing language in the ADA Standards.\33\ Adopting the approach
that commenters proposed would create inconsistency between subpart
I of this part and other portions of the Department's title II
regulation,\34\ which does not include the requirements for
equivalent facilitation that commenters suggested. Further,
requiring entities to engage in that sort of assessment with current
or prospective patients could create an unworkable framework for
public entities that had already obtained products that afforded
equivalent or greater accessibility than the MDE Standards. However,
nothing in this part requires patients to receive diagnostic health
care services that they would prefer not to receive.
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\33\ 28 CFR part 36, appendix D, at 1000 (2022) (1991 ADA
Standards); 36 CFR part 1191, appendix B, at 329 (2022) (2010 ADA
Standards).
\34\ See, e.g., Sec. 35.151(c) (allowing or requiring public
entities to comply with the 1991 ADA Standards or 2010 ADA
Standards).
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Section 35.211(e) Fundamental Alteration and Undue Burdens
Paragraph (e) of Sec. 35.211 addresses the fundamental
alteration and undue financial and administrative burdens
limitations. While subpart I of this part generally requires public
entities to adhere to the MDE Standards when newly purchasing,
leasing, or otherwise acquiring MDE, 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 undue
financial and administrative burdens. These limitations mirror the
existing title II regulation at Sec. 35.150(a)(3). If a particular
action would result in a fundamental alteration or undue burdens,
the public entity is obligated to 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 the public entity provides.
Many commenters wrote in support of the fundamental alteration
and undue burdens limitations, with some noting that the approach
strikes a thoughtful balance that will promote equal access to MDE
for people with disabilities while mitigating the challenges and
costs of implementation for public entities. While some commenters
objected to the cost of complying with subpart I of this part,
others said cost and acquisition difficulties should not be an
excuse for noncompliance. A few commenters wrote that it is unlikely
that an entity will reasonably be able to rely on these limitations
at all. Some commenters wrote that people with disabilities
historically have been forced to carry the burden, and the provision
should consider the burden on people with disabilities in terms of
factors like wait times, extra costs, and the availability of
accessible providers. Some commenters asked the Department to
clarify or define certain terms, such as ``undue burden'' or
``fundamental alteration.'' One comment suggested a particular
method for making an undue burden calculation.
A few commenters recommended that the Department establish
exceptions according to a different framework. One suggested that
the Department exempt whole categories of entities, including small
practices, new practices, and practices in areas with a health
professional shortage. Others suggested that the Department extend
the compliance timeframes for certain categories of entities,
including small, rural, and ``safety-net'' entities.
The Department acknowledges commenters' concerns that the
fundamental alteration and undue burdens limitations will undermine
access for people with disabilities. However, these limitations fall
within the well-established title II framework,\35\ and it is
important for these limitations on obligations to remain consistent
with part 35 as a whole. These limitations also require a more
individualized inquiry than the categorical exceptions that some
commenters suggested and will therefore strike a better balance
between the accessibility needs of individuals with disabilities and
the potential difficulties of compliance in particular
circumstances. As noted in the preceding paragraphs, if an action
would result in a fundamental alteration or undue burdens, the
public entity must still take any other action that would ensure
that individuals with disabilities receive the benefits or services
the public entity provides.
---------------------------------------------------------------------------
\35\ See appendix B to this part.
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Because fundamental alteration and undue burdens are
longstanding limitations under the ADA,\36\ members of the public
and public entities should already be familiar with these
limitations in other contexts. The Department has provided guidance
that addresses the fundamental alteration and undue burdens
limitations, and will consider providing more in the future.\37\ The
Department's existing guidance documents provide details on
fundamental alteration and undue burdens determinations, including
language explaining that such determinations should consider all
resources available for use in the funding and operation of the
service, program, or activity.\38\ In the Department's view, this
guidance will help public entities use the fundamental alteration
and undue burdens limitations appropriately.
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\36\ See id. Sec. Sec. 35.130(b)(7), 35.150(a)(3), and 35.164.
\37\ See, e.g., U.S. Dep't of Just., ADA Update: A Primer for
State and Local Governments, ADA.gov (Feb. 28, 2020), https://www.ada.gov/resources/title-ii-primer/ [https://perma.cc/ZV66-EFWU].
\38\ Id.
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Section 35.211(f) Diagnostically Required Structural or Operational
Characteristics
Paragraph (f) of Sec. 35.211 incorporates what M201.2 of the
Access Board's MDE Standards refers to as a General Exception.\39\
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 is not required.
---------------------------------------------------------------------------
\39\ 36 CFR part 1195, appendix, section M201.2 (revised as of
July 1, 2017).
---------------------------------------------------------------------------
In the NPRM, the Department sought comment on whether the
proposed exception in Sec. 35.211(f) is needed. Multiple commenters
supported the Department's approach, describing it as ``thoughtful''
and ``balance[d].'' Other commenters disagreed with this exception
and recommended that the Department remove or amend it, stating that
the exception is unnecessary, that it will be an overused loophole,
or that it will stifle innovation.
While the Department appreciates commenters' opinions and
concerns and recognizes the importance of providing accessible MDE
to people with disabilities, the Department continues to believe
that this exception is sometimes needed to preserve the
functionality of MDE. For instance, as noted in the NPRM, the
Department is aware that certain positron emission tomography
(``PET'') machines cannot meet the MDE Standards' technical
requirements for accessibility and still serve their diagnostic
function. Commenters did not provide information that called this
into question. Rather, the Department received numerous comments,
including several comments regarding radiological diagnostic
services, stating that this exception is essential. These commenters
expressed concern that the MDE Standards are incompatible with the
safe design and use of some types of diagnostic imaging equipment.
With respect to MRI machines in particular, a disability rights
organization observed that structural attributes may prevent certain
equipment from being made accessible, and noted the importance of
providing alternatives to ensure accessibility for individuals who
use metal wheelchairs or assistive equipment.
In light of these factors, the Department will retain the
exception in Sec. 35.211(f). The Department expects, however, that
this exception will apply only in rare cases. In such circumstances,
the public entity must still take any other action that would not
result in a fundamental alteration or undue burdens but would
nevertheless ensure that individuals with disabilities receive the
services, programs, or activities the public entity provides. For
example, a PET machine that could not meet the MDE Standards and
[[Page 65198]]
still serve its diagnostic function would not be required to meet
the MDE Standards as a whole, but the public entity would still be
required to meet all other applicable provisions of the MDE
Standards, and to take any other action that would ensure that
individuals with disabilities receive the public entity's benefits
or services without fundamentally altering the nature of the
service, program, or activity, or imposing undue financial and
administrative burdens. Such actions could include, for example,
assisting patients with transferring to the scan table so that they
can receive a PET scan.
With respect to a commenter's concern that this exception will
stifle innovation, the Department appreciates both the value of
innovation and the importance of ensuring that MDE used by
individuals with disabilities can be used safely and in accordance
with its intended diagnostic purpose, given the constraints of
existing technology. The Department believes Sec. 35.211(f) strikes
an appropriate balance between these interests. Further, the reason
for allowing for equivalent facilitation in Sec. 35.211(d) is to
encourage flexibility and innovation by public entities while still
ensuring equal or greater access to MDE.
In addition to commenters who recommended that the Department
eliminate the exception in Sec. 35.211(f), some commenters
suggested changes to the regulatory text. One commenter suggested
that the regulatory text should include language from the section-
by-section analysis relating to the rare use of the provision and
assistance transferring to a PET machine. The Department declines to
incorporate these points into the regulatory text. Because the
forgoing discussion reflects the Department's expectation about the
rare applicability of this provision, and because the discussion
about PET scans is one representative example, this discussion is
more appropriately situated in this appendix than in the regulatory
text.
A few commenters asked the Department to require that, where
equipment's structural or operational characteristics implicate the
fundamental alteration limitation, covered entities must consider
all possibilities to ensure the dignity and independence of the
person with a disability. The Department declines to amend the
regulatory text to explicitly state that public entities must
consider all possibilities to ensure the dignity and independence of
people with disabilities. While the Department encourages public
entities to do so to the extent feasible, the Department believes
that the obligations set forth in the regulatory text in Sec. Sec.
35.210 and 35.212, when read together with the ADA and the general
prohibition on discrimination in its implementing regulation, are
sufficient to prevent discrimination without further changes to this
section.\40\
---------------------------------------------------------------------------
\40\ See, e.g., 42 U.S.C. 12101(a); Sec. 35.130(b).
---------------------------------------------------------------------------
Section 35.212 Existing Medical Diagnostic Equipment
In addition to the requirements for newly purchased, leased, or
otherwise acquired MDE, Sec. 35.212 requires that public entities
address access barriers resulting from a lack of accessible MDE in
their existing inventory of equipment. Here subpart I of this part
adopts an approach analogous to the concept of program accessibility
in the existing regulation implementing title II of the ADA.\41\
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 regulation, by offering access to those
programs through alternative methods. The Department adopts a
similar approach with respect to 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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\41\ See Sec. 35.150.
---------------------------------------------------------------------------
Section 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
burdens. As addressed in more detail in the discussion of these
limitations in the section-by-section analysis of Sec. 35.211(e),
the fundamental alteration and undue burdens 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 burdens, the public entity is still obligated to
take any other action that would ensure that individuals with
disabilities are able to receive the public entity's benefits and
services. As with the fundamental alteration and undue burdens
limitations, the discussion of the exception relating to
diagnostically required structural or operational characteristics
contained in the section-by-section analysis of Sec. 35.211(f)
applies equally to the Department's approach to this exception in
Sec. 35.212(a)(3).
The Department is also correcting a typographical error in Sec.
35.212(a)(3). Section 35.212(a)(3) states that an entity meets its
burden of proving that compliance with Sec. 35.212(a) would result
in a fundamental alteration under Sec. 35.212(a)(2) if it
demonstrates that compliance with Sec. 35.212(a) would alter
diagnostically required structural or operational characteristics of
the equipment and prevent the use of the equipment for its intended
diagnostic purpose. The NPRM mistakenly referred to Sec. 35.211(a)
and (c) rather than to Sec. 35.212(a).
Section 35.212(b) describes 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 set forth in 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 Sec.
35.211, a public entity is not required to purchase, lease, or
otherwise acquire accessible MDE if other methods are effective in
achieving compliance with subpart I of this part.
For instance, 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) require a public entity's medical practice to have three
accessible examination tables and an accessible weight scale, but
the practice's existing equipment includes only one accessible
examination table and one accessible scale, then until the practice
must comply with Sec. 35.211, the practice can ensure that its
services are readily accessible to and usable by people with
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.\42\
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\42\ 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/resources/medical-care-mobility/ [https://perma.cc/UH8Y-NZWL].
---------------------------------------------------------------------------
If a public entity carries out its obligation under Sec.
35.212(a) to make a service, program, or activity readily accessible
to and usable by people with disabilities by purchasing, leasing, or
otherwise acquiring accessible MDE, then that newly purchased,
leased, or otherwise acquired MDE must comply with the requirements
set forth in Sec. 35.211.
Several commenters recommended that the Department include more
specificity regarding the methods by which public entities must make
their services, programs, and activities readily accessible to and
usable by individuals with disabilities. For example, one commenter
suggested that the Department establish a clear and defined test to
assess compliance with the program access obligation. Another
commenter suggested
[[Page 65199]]
that the Department establish thresholds to determine whether public
entities provide an equal opportunity to participate in or benefit
from the service, program, or activity. Citing the Department's
statement in the NPRM that allowing a patient to use accessible MDE
at an alternative location would not give a patient with a
disability an equal opportunity to participate in or benefit from
the service, program, or activity if it was significantly less
convenient or resulted in higher costs for the patient, the
commenter suggested that the Department define how inconvenient an
alternative location must be, either in terms of distance or in
terms of travel time, in order to violate Sec. 35.212(a).
The Department acknowledges these concerns and the commenters'
desire for more clearly defined parameters, but notes that the
concept of services, programs, and activities being readily
accessible to and usable by individuals with disabilities is a
longstanding requirement under title II of the ADA in other
contexts.\43\ Therefore, members of the public and State and local
governments should already be familiar with this obligation. The
Department has also provided guidance that addresses this
concept,\44\ and will consider providing more in the future. The
Department operates a toll-free ADA Information Line that the public
can call for assistance understanding the requirements of the ADA.
The question of whether a particular service, program, or activity,
in its entirety, is readily accessible to and usable by individuals
with disabilities will be an inherently fact-bound inquiry.
---------------------------------------------------------------------------
\43\ See, e.g., Sec. Sec. 35.150 and 35.151.
\44\ See, e.g., U.S. Dep't of Just., Civ. Rts. Div., ADA Update:
A Primer for State and Local Governments (Feb. 28, 2020), https://www.ada.gov/resources/title-ii-primer/ [https://perma.cc/ZV66-EFWU];
U.S. Dep't of Just., Title II Assistance Manual: Covering State and
Local Government Programs and Services, https://archive.ada.gov/taman2.html [https://perma.cc/6QNC-3RRA].
---------------------------------------------------------------------------
Some commenters recommended that the Department require public
entities to engage in an interactive process with patients and
consider patients' preferences and needs in determining how to carry
out their program access obligations. An ``interactive process'' is
a term of art that applies in the ADA title I context but not the
ADA title II context, and the Department declines to require such a
process in subpart I of this part.\45\ However, it may often be
helpful or necessary for public entities to consider patients'
preferences and needs in order to ensure that the entity's services,
programs, and activities, in their entirety, are readily accessible
to and usable by individuals with disabilities. For example, using
the scenario discussed in the preceding paragraphs, a medical
practice that lacks accessible MDE at its primary location might be
able to achieve program accessibility by serving a patient who
needed accessible MDE at an alternative location. But the practice
would first need to determine how difficult it would be for the
patient to travel to the alternative location. As explained in the
preceding paragraphs, if the alternative location was significantly
less convenient or resulted in higher costs for the patient, it
would not provide an equal opportunity to participate in or benefit
from the service, program, or activity.
---------------------------------------------------------------------------
\45\ See 29 CFR 1630.2(o)(3).
---------------------------------------------------------------------------
One commenter asked whether public entities can continue to use
existing MDE that meets some but not all of the requirements set
forth in the MDE Standards. The commenter asked whether, for
example, an entity can use an adjustable height examination table
that lowers to the minimum height but does not raise to the upper
height set forth in the MDE Standards. As Sec. 35.212(b) explains,
Sec. 35.212(a) does not require public entities to acquire MDE that
meets all of the requirements set forth in the MDE Standards if
other methods enable them to make their services, programs, and
activities, in their entirety, readily accessible to and usable by
individuals with disabilities. Using MDE that meets some but not all
of the requirements set forth in the MDE Standards may, in some
cases, be one way for public entities to carry out their program
access obligation under Sec. 35.212(a). In contrast, newly acquired
MDE must meet all of the requirements set forth in the MDE Standards
pursuant to Sec. 35.211(a), absent an applicable limitation.
Finally, one commenter recommended that the Department add a
requirement from the ADA title III regulations that ``a public
accommodation shall remove architectural barriers in existing
facilities where such removal is readily achievable, i.e., easily
accomplishable and able to be carried out without much difficulty or
expense.'' \46\ The readily achievable barrier removal standard
applies to architectural barriers, not barriers in equipment, and
importing requirements from the ADA title III regulation into
subpart I of this part could create confusion and inconsistency with
the other obligations in subpart I and with the rest of the title II
regulation. Additionally, MDE often cannot be retrofitted to be
accessible with the same ease or cost ratio as many forms of readily
achievable barrier removal, such as adding raised markings to
elevator buttons or providing paper cups at an inaccessible water
fountain. The Department therefore declines to import the readily
achievable barrier removal standard into the final rule.
---------------------------------------------------------------------------
\46\ 28 CFR 36.304(a).
---------------------------------------------------------------------------
Section 35.213 Qualified Staff
Section 35.213 requires public entities to ensure that their
staff members 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 members are able to successfully operate
accessible MDE is to provide staff training on the use of MDE, but
the final rule does not mandate that approach.
The Department received comments on this issue from a range of
stakeholders, including individuals with disabilities, disability
advocacy organizations, and health care providers. Many commenters
supported the Department's proposal. In response to the Department's
request for comments on the effectiveness of programs used to ensure
that staff are qualified, several disability advocacy organizations
noted that even when a health care provider has accessible MDE,
staff are sometimes unable to operate it. Many people with
disabilities and disability advocacy organizations also described
interactions with staff who were not able to provide assistance with
transfers or did not provide program access in other ways. These
accounts supported the need for Sec. 35.213, which explicitly
requires public entities to ensure that their staff members are able
to successfully operate accessible MDE, assist with transfers, and
ensure program access.
A disability advocacy organization proposed that the Department
revise the text of Sec. 35.213 to include personnel who are
responsible for scheduling appointments and maintaining accessible
MDE, and to require public entities to ensure that staff members are
able to maintain accessible MDE and ensure scheduling times and
reservations appropriate for patients with disabilities. The
Department believes that the current language of the general
nondiscrimination obligation set forth in Sec. 35.210 and the
program access obligation set forth in Sec. 35.212, in conjunction
with the other provisions in the title II regulation that require
equal access and maintenance of accessible features,\47\ is
sufficient to address the issues raised by the commenter. The
Department also notes that Sec. 35.213 pertains to public entities'
staff but is not limited to particular types of staff. As with the
other topics for training discussed in the section-by-section
analysis of Sec. 35.213, public entities may find that providing
their staff with the training this commenter described is often the
most effective way to meet their obligations under subpart I of this
part and other parts of the ADA. The lack of a specific requirement
to provide training to these personnel regarding these issues would
not excuse a related ADA violation.
---------------------------------------------------------------------------
\47\ See, e.g., id. Sec. Sec. 35.130 and 35.133.
---------------------------------------------------------------------------
Only one commenter opposed Sec. 35.213. This commenter stated
that requiring public entities to ensure that their staff members
are able to assist with transfers would lead to discrimination
against employees with disabilities who are not physically able to
assist with transfers. The Department notes that subpart I of this
part does not supersede or alter title I of the ADA or occupational
safety standards, or redefine the essential functions of any
particular employee's job.\48\ Qualified employees with disabilities
remain entitled to reasonable accommodations as specified in
existing law.\49\ However, an individual employee's need for
accommodations does not diminish the rights of other individuals
with disabilities to have
[[Page 65200]]
equal access to the services, programs, and activities provided by a
public entity.
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\48\ See 42 U.S.C. 12111-12117.
\49\ 42 U.S.C. 12112(b)(5); 29 CFR 1630.9.
---------------------------------------------------------------------------
Many commenters encouraged the Department to establish more
explicit and specific requirements for training. Commenters provided
a variety of suggestions for what these requirements should be,
including certification; training by the manufacturers of accessible
MDE; periodic ``refresher'' training; and training on additional
topics, such as the maintenance of accessible MDE, appointment
scheduling and booking accessible MDE, attitudinal barriers,
implicit bias, ableism, disability culture, disability history,
providing care to individuals with disabilities, transfer support
and practice, the use of lifts, plain language, effective
communication, and reasonable modifications. One commenter suggested
that the Department should withhold Federal funding if certain
training is not conducted. Many commenters stated that people with
disabilities should be involved in training so that public entities
are able to draw from individuals' lived experiences.
In response to the Department's request for comments on the
costs of programs for ensuring qualified staff, a few commenters
stated that the cost of training would be minimal, especially in
comparison to the cost of an injury to individuals with disabilities
or personnel. These commenters stated that proper training reduces
the number of injuries to individuals with disabilities and staff,
ultimately reducing costs for covered entities.
After considering all of these comments, the Department declines
to impose more specific requirements in Sec. 35.213. Training,
including training on the topics commenters suggested, will often be
the most effective way to for public entities to ensure compliance
with the entity's obligations under subpart I of this part. Training
developed in consultation with, or provided by, individuals with
disabilities may be particularly effective. And the Department
appreciates commenters' views that training may ultimately reduce
costs. However, the Department believes it is important to provide
public entities with flexibility to determine how they will comply
with the qualified staff requirement. Appropriate methods for
meeting this requirement may differ for small health care providers
as opposed to large hospital systems, for example. The Department
has therefore decided not to mandate one specific process or
curriculum that all public entities must follow to comply with Sec.
35.213.
Several commenters suggested steps the Department could take to
assist covered entities in complying with this requirement and the
other requirements set forth in subpart I of this part. Suggestions
included providing additional guidance, technical assistance,
training, and financial resources. Some commenters also suggested
that the Department collaborate with manufacturers to provide
instructions on how to use accessible MDE or encourage covered
entities to request instructions during procurement. The Department
notes that it has already provided some technical assistance.\50\ If
public entities would find it helpful to seek additional information
from MDE manufacturers or vendors, the Department encourages
entities to do so. As noted in the discussion of Sec. 35.211(c),
the Department does not currently operate a grant program to assist
public entities in complying with the ADA. The Department will,
however, continue to consider what additional guidance, technical
assistance, or training it can provide that will assist regulated
entities in complying with their obligations under subpart I of this
part.
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\50\ See, e.g., 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/resources/medical-care-mobility/ [https://perma.cc/UH8Y-NZWL].
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Public Comments on Other Issues in Response to NPRM
The Department received comments on a variety of other issues in
response to the NPRM. Several commenters recommended that the
Department prescribe specific steps that all entities must take in
order to carry out the primary requirements in subpart I of this
part, such as employing scheduling and reservation systems;
maintaining and publishing lists of accessible inventory, including
the location of such equipment; reimbursing patients for
transportation costs to accessible facilities; using certain staff-
to-patient ratios; having staff take notes on each patient's needs
and the patient's level of understanding; providing communication
access in American Sign Language and Braille; using patient lifts or
transfer teams; and offering scales and health monitoring tools for
home use to patients with transportation difficulties. Another
commenter suggested that entities subcontract with disability groups
to test MDE that the entities have purchased. Some commenters also
suggested that the Department issue guidance on various topics.
While the Department appreciates commenters' thoughtful
suggestions, the Department declines to prescribe that public
entities must take these specific steps in order to carry out the
requirements in subpart I of this part. The Department intends to
instead give public entities and members of the public clarity about
the requirements in subpart I of this part, while also giving public
entities flexibility in determining how best to carry out those
requirements based on their individual circumstances. Public
entities may find that many of the approaches recommended in the
comments summarized in the preceding paragraph will enable them to
carry out the requirements in subpart I of this part. The Department
will also consider providing additional guidance to public entities
about how to comply with subpart I of this part.
Commenters also expressed concern that people with disabilities
are not involved in decisions associated with their care, in
general. One commenter suggested that all policies about people with
disabilities should be formed in consultation with an advisory
council of people with a range of disabilities. The Department
agrees that it is important to involve people with disabilities in
decisions involving the creation and implementation of disability-
related rules and policies. Indeed, the technical standards that the
Department is adopting were created by the Access Board, a
coordinating body that includes 13 members of the public, most of
whom are required to have a disability in order to be appointed to
the Access Board.\51\ The Department has also carefully considered
comments on the NPRM from many members of the public who self-
identified as having a disability. In addition, individuals with
disabilities can file a complaint with the Department or file a
private lawsuit if a public entity fails to carry out its title II
obligations. Given the existing mechanisms to solicit feedback and
receive complaints about implementation from individuals with
disabilities, the Department declines to create an advisory council
in connection with this part.
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\51\ U.S. Access Board, About the U.S. Access Board, https://www.access-board.gov/about/ [https://perma.cc/L9N7-56YV].
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The Department also received a comment suggesting that it
regularly review and update accessibility standards to reflect
technological advancements and the evolving needs of individuals
with disabilities. Executive Order 13563 already requires the
Department to review its regulations periodically to determine
whether they should be modified, streamlined, expanded, or
repealed.\52\ Further, section 510 of the Rehabilitation Act
requires the Access Board, in consultation with the Food and Drug
Administration, to periodically review and, as appropriate, amend
the MDE standards.\53\ Therefore, a separate mechanism for reviewing
the effectiveness of this part is not necessary.
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\52\ E.O. 13563, sec. 6, 3 CFR, 2011 Comp., p. 215.
\53\ 29 U.S.C. 794f(c).
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Finally, the Department received a few comments asking that it
make the MDE Standards enforceable against title III entities. As
noted in section II.A of the preamble to the final rule (``Statutory
and Rulemaking Overview''), the Department will continue to consider
issues concerning MDE under title III. The Department will also
continue to consider further rulemaking on this topic. However,
title III entities are not the subjects of this rulemaking.
Dated: July 26, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-16889 Filed 8-8-24; 8:45 am]
BILLING CODE 4410-13-P