[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

[[Page 65184]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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)).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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].
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \11\ See generally Sec.  35.151.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \14\ See 36 CFR part 1191, appendix B, sections 208.2.2, 
223.2.1, 223.2.2.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \20\ See 49 CFR part 37, subpart D.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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].
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.

---------------------------------------------------------------------------

[[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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \30\ See, e.g., Sec. Sec.  35.130(b)(1)(ii) and (f) and 
35.150(a).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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].
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
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    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.
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    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