Nondiscrimination on the Basis of Disability by State and Local Governments and Places of Public Accommodation; Equipment and Furniture, 43452-43460 [2010-18331]

Agencies

• Department of Justice

[Federal Register Volume 75, Number 142 (Monday, July 26, 2010)]
[Proposed Rules]
[Pages 43452-43460]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18331]


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DEPARTMENT OF JUSTICE

28 CFR Parts 35 and 36

[CRT Docket No. 113]
RIN 1190-AA64


Nondiscrimination on the Basis of Disability by State and Local 
Governments and Places of Public Accommodation; Equipment and Furniture

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Advance Notice of Proposed Rulemaking.

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SUMMARY: The Department of Justice (Department) is considering possible 
changes to requirements under titles II and III of the Americans with 
Disabilities Act (ADA) to ensure that equipment and furniture used in 
programs and services provided by public entities and public 
accommodations are accessible to individuals with disabilities. In this 
Advance Notice of Proposed Rulemaking (ANPRM), the Department is 
seeking public input on issues relating to possible revisions of ADA 
regulations to ensure the accessibility of equipment and furniture in 
such programs and services and also is seeking background information 
for the regulatory assessment that the Department may need to prepare 
if it revises its regulations.

DATES: The Department invites written comments from members of the 
public. Written comments must be postmarked and electronic comments 
must be submitted on or before January 24, 2011. Commenters should be 
aware that the electronic Federal Docket Management System will not 
accept comments after Midnight Eastern Time on the last day of the 
comment period.

ADDRESSES: You may submit comments, identified by RIN 1190-AA64 (or 
Docket ID No. 113), by any one of the following methods:
     Federal eRulemaking Web site: www.regulations.gov. Follow 
the Web site instructions for submitting comments.
     Regular U.S. mail: Disability Rights Section, Civil Rights 
Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-
0885.
     Overnight, courier, or hand delivery: Disability Rights 
Section, Civil Rights Division, U.S. Department of Justice, 1425 New 
York Avenue, NW., Suite 4039, Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Sarah DeCosse, Attorney Advisor, 
Disability Rights Section, Civil Rights

[[Page 43453]]

Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY). 
This is not a toll-free number. Information may also be obtained from 
the Department's toll-free ADA Information Line at (800) 514-0301 
(voice) or (800) 514-0383 (TTY).
    You may obtain copies of this ANPRM in large print or Braille or on 
audiotape or computer disk by calling the ADA Information Line at (800) 
514-0301 (voice) and (800) 514-0383 (TTY). This ANPRM is also available 
on the ADA Home Page at https://www.ada.gov.

SUPPLEMENTARY INFORMATION: 

I. Electronic Submission of Comments and Posting of Public Comments

    You may submit electronic comments to: https://www.regulations.gov. 
When submitting comments electronically, you must include CRT Docket 
No. 113 in the subject box, and you must include your full name and 
address. Electronic files should avoid the use of special characters or 
any form of encryption and should be free of any defects or viruses.
    Please note that all comments received are considered part of the 
public record and made available for public inspection online at https://www.regulations.gov. Submission postings will include any personal 
identifying information (such as your name, address, etc.) included in 
the text of your comment. If you include personal identifying 
information (such as your name, address, etc.) in the text your 
comment, but do not want it to be posted online, you must include the 
phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of 
your comment. You must also include all the personal identifying 
information you want redacted along with this phrase. Similarly, if you 
submit confidential business information as part of your comment but do 
not want it posted online, you must include the phrase ``CONFIDENTIAL 
BUSINESS INFORMATION'' in the first paragraph of your comment. You must 
also prominently identify confidential business information to be 
redacted within the comment. If a comment has so much confidential 
business information that it cannot be effectively redacted, all or 
part of that comment may not be posted on: https://www.regulations.gov.
    Comments on this ANPRM will also be made available for public 
viewing by appointment at the Disability Rights Section, located at 
1425 New York Avenue, NW., Suite 4039, Washington, DC 20005, during 
normal business hours. To arrange an appointment to review the 
comments, please contact the ADA Information Line at (800) 514-0301 
(voice) or (800) 514-0383 (TTY).
    The reason that the Civil Rights Division is requesting electronic 
comments before midnight Eastern Time on the day the comment period 
closes is because the inter-agency Regulations.gov/Federal Docket 
Management System (FDMS) which receives electronic comments terminates 
the public's ability to submit comments at midnight on the day the 
comment period closes. Commenters in time zones other than Eastern may 
want to take this fact into account so that their electronic comments 
can be received. The constraints imposed by the Regulations.gov/FDMS 
system do not apply to U.S. postal comments, which will be considered 
as timely filed if they are postmarked before midnight on the day the 
comment period closes.

II. Public Hearing

    The Department will hold at least one public hearing to solicit 
comments on the issues presented in this notice. The Department plans 
to hold the public hearing during the 180-day public comment period. 
The date, time, and location of the public hearing will be announced to 
the public in the Federal Register and on the Department's ADA Home 
Page: https://www.ada.gov.

III. Proposed Action/Summary

    The Department is seeking information to assist it in determining 
if it should propose specific accessibility requirements for non-fixed 
equipment and furniture, including medical equipment, exercise 
equipment, accessible golf cars, accessible beds, and electronic and 
information technology, by entities subject to title II or title III of 
the ADA.

IV. Background

A. Statutory and Rulemaking History

    On July 26, 1990, President George H.W. Bush signed into law the 
ADA, a comprehensive civil rights law prohibiting discrimination on the 
basis of disability. The ADA broadly protects the rights of individuals 
with disabilities in employment, access to State and local government 
services, places of public accommodation, transportation, and other 
important areas of American life. The ADA also requires newly designed 
and constructed or altered State and local government facilities, 
public accommodations, and commercial facilities to be readily 
accessible to and usable by individuals with disabilities. 42 U.S.C. 
12101 et seq. Section 204 (a) of title II and section 306(b) of title 
III direct the Attorney General to promulgate regulations to carry out 
the provisions of titles II and III, other than certain provisions 
dealing specifically with transportation. 42 U.S.C. 12134; 42 U.S.C. 
12186(b).
    Title II applies to State and local government entities, and, in 
Subtitle A, protects qualified individuals with disabilities from 
discrimination on the basis of disability in services, programs, and 
activities provided by State and local government entities. Title II 
extends the prohibition on discrimination established by section 504 of 
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 
504), to all activities of State and local governments regardless of 
whether these entities receive Federal financial assistance. 42 U.S.C. 
12131-65.
    Title III prohibits discrimination on the basis of disability in 
the activities of places of public accommodation (private entities 
whose operations affect commerce and that fall into one of twelve 
categories listed in the ADA, such as restaurants, movie theaters, 
schools, day care facilities, recreational facilities, and doctors' 
offices) and requires newly constructed or altered places of public 
accommodation--as well as commercial facilities (privately owned, 
nonresidential facilities such as factories, warehouses, or office 
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.
    On July 26, 1991, the Department issued its final rules 
implementing title II and title III, which are codified at 28 CFR part 
35 (title II) and part 36 (title III). Appendix A of the title III 
regulation, at 28 CFR part 36, contains the ADA Standards for 
Accessible Design (1991 Standards). These Standards resulted from the 
Department's incorporation into the rule of the 1991 ADA Accessibility 
Guidelines (1991 ADAAG) promulgated by the U.S. Architectural and 
Transportation Barriers Compliance Board (Access Board). The Department 
is a member of the Access Board and participates in its development of 
accessibility guidelines. On September 30, 2004, the Department 
published an advance notice of proposed rulemaking (2004 ANPRM) to 
begin the process of updating the 1991 regulations and to adopt revised 
ADA Standards based on the relevant parts of the Access Board's 2004 
ADA/Architectural Barriers Act (ABA) Accessibility Guidelines. 69 FR 
44084. The Department issued Notices of Proposed Rulemaking (NPRMs) to 
revise the title II and title III regulations and these incorporated 
the 2004 ADA/ABA Accessibility Guidelines into the revised ADA 
Standards. 73 FR 34466

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(June 17, 2008). The NPRMs addressed the issues raised in the comments 
to the ANPRM and sought additional comment.
    The 2004 ANPRM asked for public comment on a range of issues not 
specifically addressed in the ADA regulations, including coverage of 
movable or portable equipment and furniture. 59 FR 58768. Although the 
Department received public comments in response to the ANPRM supporting 
its regulation of equipment and furniture, when the Department issued 
its 2008 NPRM, it announced its decision not to address equipment at 
that time. 73 FR 34466, 34474-75 (June 17, 2008). Instead, the 
Department continued its approach of requiring accessible equipment and 
furniture on a case-by-case basis. Under the regulatory provisions 
governing reasonable modifications of policies, practices, or 
procedures, program accessibility, effective communication, and barrier 
removal, the Department has continued its long-standing practice of 
requiring accessible equipment and furniture.
    The Department received numerous comments urging it to issue 
equipment and furniture regulations. Based on these comments and for 
the reasons detailed below, the Department has decided to begin the 
process of soliciting comments and suggestions with respect to what an 
NPRM regarding equipment and furniture should contain.

B. Legal Foundation for Equipment and Furniture Coverage

    The ADA prohibits discrimination on the basis of disability in all 
services, programs, and activities offered by public entities and in 
the operation of privately owned places of public accommodation. The 
provision of accessible equipment and furniture has always been 
required by the ADA and the Department's implementing regulations under 
the program accessibility, reasonable modification, auxiliary aids and 
services, and barrier removal requirements. Each of the types of 
equipment and furniture discussed in this ANPRM is subject to coverage 
under both title II and title III of the ADA.
    Title II of the ADA applies to services, programs, or activities of 
public entities within the meaning of 42 U.S.C. 12133(1)(A). The 
program accessibility requirement of Title II mandates public entities 
to 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 individuals with disabilities, subject to a defense of 
fundamental alteration or undue burden. 28 CFR 35.150(a). Section 
35.150(b) specifies that such entities may meet their obligation to 
make each program accessible to individuals with disabilities through 
the ``redesign of equipment.'' If an entity invokes a fundamental 
alteration defense, the entity nonetheless must take other steps that 
would not fundamentally alter the nature of the services provided. For 
example, the provision of a height adjustable examination table in a 
doctor's office may meet the requirement for program accessibility. 
However, if the provision of an adjustable examination table in a 
doctor's office would fundamentally alter the nature of the services 
provided, based on a fact specific inquiry, then the use instead of a 
nonadjustable examining table of suitable height, might afford an 
individual with a disability an equal opportunity to participate in the 
services, programs, and activities offered by that entity.
    Title II entities also must ensure that communications with 
individuals with disabilities are as effective as communications with 
others and provide appropriate auxiliary aids and services where 
necessary to ensure that individuals with disabilities have an equal 
opportunity to participate in and benefit from a service, program, or 
activity. 28 CFR 35.160. These auxiliary aids include the 
``[a]cquisition or modification of equipment or devices.'' 28 CFR 
35.104. In addition, equipment and personal property, such as 
furniture, is specifically included in the definition of ``facility'' 
in title II. 28 CFR 35.104. There is an identical definition of 
``facility'' in the regulation implementing title III. 28 CFR 36.104.
    Title III of the ADA applies to persons who own, lease or lease to, 
or operate places of public accommodation, such as doctors' offices, 
hospitals, nursing homes, hotels and motels, shopping centers, 
specified public transportation terminals, recreational facilities, 
such as health clubs or golf courses, restaurants, movie theaters, 
schools, and day care facilities. 42 U.S.C. 12182(a). Public 
accommodations discriminate against individuals with disabilities when 
they enact discriminatory policies or practices, or fail to remove 
barriers or make requested reasonable modifications in order to 
accommodate an individual's disability, unless barrier removal is not 
readily achievable or a modification would fundamentally alter the 
nature of the business. See 28 CFR 36.304 (barrier removal) and 
36.302(a) (reasonable modification). If barrier removal is not readily 
achievable, then an alternative means must be provided if that 
alternative means is readily achievable. For example, a standard-
height, nonadjustable examining table constitutes an architectural 
barrier to persons with certain mobility impairments. Therefore, an 
adjustable table must be provided if it is readily achievable. If it is 
not readily achievable to obtain such a table, then an alternative, 
such as a nonadjustable lower height table, must be provided if that 
alternative is readily achievable.
    Public accommodations also must ensure that no individuals with 
disabilities are excluded, denied services, segregated or otherwise 
treated differently from other individuals because of the absence of 
auxiliary aids and services, unless taking such steps would 
fundamentally alter the nature of the goods, services, facilities, 
privileges, advantages, or accommodations being offered or result in an 
undue burden. 28 CFR 36.303(a). The preamble to the Department's 1991 
regulation clarified the manner in which equipment and furniture are 
covered by the title III regulation. 28 CFR part 36, app. B, at 733 
(Proposed Section 36.309 Purchase of Furniture and Equipment). Some 
types of equipment and furniture are covered specifically by the 
Department's adoption of the 1991 ADAAG as the ADA Standards for 
Accessible Design. Equipment and furniture may also be covered by other 
regulatory provisions including reasonable modifications, 28 CFR 
36.302; auxiliary aids, 28 CFR 36.303; and barrier removal, 28 CFR 
36.304.
    While some types of fixed equipment and furniture are explicitly 
covered by the 1991 Standards, there are no specific provisions in the 
regulations governing the accessibility of equipment and furniture that 
are not fixed. See 28 CFR pt. 36, app. A. (Automatic Teller Machines 
(ATMs) and Fixed or Built-in Seating or Tables). A fixed item is 
something that is built into the facility, for example, through 
plumbing. In contrast, an item that is not fixed is not attached to the 
facility. In order to ensure that not only fixed equipment and 
furniture be accessible, the Department seeks to provide specific 
regulatory guidance for the accessibility of equipment and furniture 
that are not fixed. Whether a type of equipment or furniture is fixed 
or not is generally not relevant from the perspective of the user. For 
example, an ATM or vending machine that is fixed is used for the same 
purpose and in the same manner as an equivalent ATM or vending machine 
that is not fixed. To the extent that ADA standards apply requirements 
for fixed equipment and furniture, the Department will look to those 
standards

[[Page 43455]]

for guidance on accessibility standards for equipment and furniture 
that are not fixed.
    With regard to making electronic or information technology 
equipment and furniture accessible to individuals with disabilities, 
including individuals who are blind or have low vision, Section 508 of 
the Rehabilitation Act of 1973, which applies to federal agencies, 
provides guidance for the public on how to make electronic and 
information technology accessible. See, e.g., 29 U.S.C. 794d.
    The Department's experience in the twenty years since the ADA was 
enacted has given it a better understanding of the barriers posed by 
inaccessible equipment and furniture and the solutions provided by 
accessible equipment and furniture. Accessible equipment and furniture 
is often critical to an entity's ability to provide a person with a 
disability equal access to its services. Changes in technology have 
resulted in the development and improved availability of accessible 
equipment and furniture that benefit individuals with disabilities. Use 
of the Internet, video interpreting services, screen readers, and text 
messaging, are just a few examples of technologies that were rare or 
nonexistent twenty years ago, but are now widely used by individuals 
with disabilities. New technologies have led to accessible equipment 
and furniture ranging from accessible medical exam tables for 
individuals who use wheelchairs to ``talking'' ATMs and interactive 
kiosks, which can be used independently and while preserving privacy 
through the use of headphones by individuals who are blind or have low 
vision. Consequently, it is easier now to specify appropriate 
accessibility standards for such equipment and furniture, as the Access 
Board has done for several types of fixed equipment and furniture, 
including ATMs, washing machines, dryers, tables, benches, and vending 
machines. See sections 903, 902, 707, 611, and 228 of the ADA/ABA 
Accessibility Guidelines.
    For all of these reasons, the Department believes that providing 
specific requirements for accessible equipment and furniture is 
consistent with the mandates of the ADA and necessary and appropriate 
at this time.

V. Request for Public Comments

    The Department seeks input from the public and from those in the 
disability community, representatives of Federal, State, or local 
governments, public safety organizations, and industry professionals. 
The Department invites comments on types and features of equipment and 
furniture that will effectively provide equal opportunity to access all 
services and programs covered by titles II and III of the ADA, on 
scoping (which refers to the amount of equipment or furniture that 
should be provided in different types of facilities in order to meet 
the needs of individuals with disabilities needing access to those 
facilities), on events or time frames that should trigger the 
replacement or modification of inaccessible equipment or furniture with 
accessible equipment or furniture, and on the costs and benefits of 
accessible equipment and furniture. In your responses to the questions 
presented below, please refer to each question by number. Please 
provide any additional information that you believe will be helpful.

A. Medical Equipment and Furniture

    Without accessible medical examination tables, dental chairs, 
radiological diagnostic equipment, scales, and rehabilitation 
equipment, individuals with disabilities do not have an equal 
opportunity to receive medical care. Individuals with disabilities may 
be less likely to get routine preventative medical care than people 
without disabilities because of barriers to accessing that care. The 
Department has entered into settlement agreements with several medical 
care providers that have required the medical care provider to purchase 
accessible equipment and furniture for its facilities, including at 
least one accessible examination table in each medical department and 
additional accessible examination tables, radiologic equipment, scales, 
beds, and lifting devices, as needed. These settlement agreements are 
available to the public at https://www.ada.gov. The Department has also 
issued technical assistance on this issue. See Access to Medical Care 
for Individuals with Mobility Disabilities, on May 17, 2010.
    The health care reform law, the Patient Protection and Affordable 
Care Act, added a new Section 510 to the Rehabilitation Act of 1973. 
Section 510 directs the Access Board to promulgate regulatory standards 
setting forth the minimum technical criteria for medical diagnostic 
equipment used in (or in conjunction with) physician's offices, 
clinics, emergency rooms, hospitals, and other medical settings. The 
standards shall ensure that such equipment is accessible to, and usable 
by, individuals with accessibility needs, and shall allow independent 
entry to, use of, and exit from the equipment or furniture by such 
individuals to the maximum extent possible. The Access Board has 
announced that it will draft new design standards for medical 
diagnostic equipment to satisfy this requirement. As an Access Board 
member, the Department will work closely with the Board in the 
development of these design standards. The Department will not issue a 
final rule on medical equipment until the Access Board has completed 
its medical diagnostic equipment standards. When the standards are 
completed, the Department will have the option to adopt them for ADA 
implementation and, if it does so, will, at that time, develop specific 
scoping requirements to establish the required number of accessible 
diagnostic elements for specific facility types. In addition, the 
Department may propose regulations to ensure the accessibility of 
medical equipment that is used for treatment, rehabilitative or other 
purposes.
i. Medical Examination and Treatment Tables and Chairs
    Healthcare providers use examination and treatment tables and 
chairs for many different types of medical and dental examinations and 
treatments. Examples of specialty areas using examination or treatment 
tables or chairs include ophthalmology, optometry, podiatry, oncology, 
physical therapy, chiropractic, rehabilitation medicine, urology, and 
obstetrics and gynecology. If a person with a disability cannot get 
onto an examination table or chair and is thus not examined (as occurs, 
for example, with some women with disabilities who cannot access ob-gyn 
tables) or is examined in a wheelchair, any examination that does occur 
likely will be less thorough than it would have been on an examination 
table, and the medical provider may miss important medical information.
    The Department has received complaints and learned in the course of 
its enforcement efforts that medical and dental examination tables and 
chairs often are too high to be accessible, lack stabilization 
elements, and do not have adequate clear floor space nearby to permit 
access. Although Section 510 of the Rehabilitation Act does not 
specifically address tables and chairs used solely for treatment 
purposes, the Department anticipates that such treatment equipment 
would be subject to similar accessibility requirements, such as 
adjustable heights.
ii. Accessible Scales
    Medical providers often do not weigh individuals who use 
wheelchairs because they do not have an accessible scale, even though 
that information is a routine part of medical examinations and is 
important to the patient's health

[[Page 43456]]

and medical care. Patient weight can serve as a health indicator for 
many conditions, including depression, diabetes, cancer, cardiovascular 
disease, high blood pressure, and pregnancy. Correct patient weight is 
crucial to correctly prescribing medicine. Scales should be accessible 
to individuals who use wheelchairs or have other mobility disabilities 
that would impede the use of step-on scales.
    Several different types of scales offer different means of 
accommodating patients with mobility disabilities while also affording 
flexibility to medical providers. Wheelchair scales are currently 
available as stand-alone devices or as equipment that is integrated 
into other medical equipment. Stand-alone wheelchair scales include 
wall-mounted stationary (folding or not folding), platform (in ground), 
and portable platform (folding or not folding).
iii. Radiological Diagnostic Equipment
    Some types of radiological diagnostic equipment, such as Magnetic 
Resonance Imaging (MRI), Positron Emission Tomography (PET), and X-
rays, including Computerized Axial Tomography (CAT) scans and 
mammography, are difficult to access for individuals with disabilities 
because of the height, shape, or configuration of the equipment. The 
Department has reached settlements with medical offices and hospitals 
providing diagnostic services because patients with mobility 
disabilities could not access medical diagnostic equipment. Some 
individuals with disabilities had difficulty transferring from 
wheelchairs onto scanning tables and were denied staff assistance or 
not provided access to medical equipment and furniture, such as gurneys 
or lifts, to facilitate the transfer to the diagnostic equipment and 
furniture. Different types of diagnostic equipment and furniture pose 
different challenges. For example, MRIs typically require individuals 
with disabilities to climb onto an MRI table and remain on the table 
while it is moved into and out of a scanning tube, a process that can 
take one to two hours. Mammograms may be inaccessible to individuals 
with mobility disabilities who cannot stand for the duration of the 
examination.
iv. Lifts
    Medical providers may need lifts to transfer some patients with 
mobility disabilities safely to examination or treatment tables or 
chairs or to gurneys or hospital beds. The kind of assistance needed 
will depend on a patient's disability. Using lifts may provide more 
security for a patient than being lifted by medical staff and may 
reduce the risk of injury to medical staff. Concerns about lifting 
injuries have given rise to proposed legislation at the federal and 
state levels designed to increase safety for patients and medical 
staff. See, e.g., Nurse and Health Care Worker Protection Act of 2009 
(S. 1788); Recognizing the Need for Safe Patient Handling and Movement 
(H. Res. 510). There are several different types of patient lifts 
available now on the market, including free-standing, ceiling-mounted, 
and sling lifts. The use of lifts by medical and dental providers may 
improve accessibility to medical and dental examination and treatments.
v. Infusion Pumps
    Infusion pumps infuse fluids such as chemotherapy drugs, pain 
medications, or nutrients into the circulatory system in a controlled 
manner. Several kinds of infusion pumps, including Patient Controlled 
Analgesia pumps, are available. Problems can arise with infusion pumps 
when there are errors in dosing rate or fluid volume. Infusion pumps 
often rely on patients controlling settings on difficult-to-reach 
buttons or flat screens that may not be accessible to individuals with 
disabilities. Integrated alarms may not be audible to individuals with 
hearing disabilities.
vi. Rehabilitation Equipment
    Medical providers offering rehabilitative services must make those 
services equally available to individuals with disabilities. 
Rehabilitation and exercise equipment and furniture, including balance 
equipment, cardiopulmonary equipment, exercise pulleys and stretching 
equipment, resistance equipment, and general exercise equipment, should 
be available to individuals with disabilities requiring such 
rehabilitative treatment on an equal basis with other patients. For 
example, individuals with hearing impairments or blindness or low 
vision might require equipment or furniture to permit their full 
participation in cardiopulmonary rehabilitative services.
vii. Ancillary Equipment
    Ancillary equipment is equipment used with other medical equipment, 
such as examination tables or chairs or MRIs, and adapted to or 
adjustable for use by individuals with disabilities. Ancillary 
equipment includes items such as positioning straps or cushions; 
protective padding; adjustable, padded leg supports for gynecological 
examinations; and additional supports, rails, or bars needed to ensure 
the safety and comfort of patients with disabilities. Sliding boards or 
sheets and gait belts may assist in transfers of patients with 
disabilities to and from examination or treatment tables and chairs. 
Individuals with mobility disabilities may require air mattresses and 
cushions, stools, or other pressure relief equipment to aid in the 
avoidance or treatment of pressure sores. Accessible call buttons and 
telephones can address communication difficulties for patients with 
mobility or other types of disabilities.
viii. Hospital Beds and Gurneys
    Hospital beds and gurneys can be inaccessible to individuals with 
mobility disabilities. Medical care and long-term care facilities do 
not always provide accessible beds in the patient and resident sleeping 
rooms required to be accessible. In order to permit transfers by 
individuals with mobility disabilities, including those using 
wheelchairs, accessible height-adjustable beds would allow persons 
using wheelchairs and other mobility devices to transfer in and out of 
bed as independently as possible. Gurneys used to transport patients 
from place to place in a medical facility or used in certain diagnostic 
procedures may need to meet the same height requirements. Hospital bed 
control devices, for raising and lowering the bed and for other 
functions, as well as call buttons, also should be accessible to 
patients with disabilities.
ix. Medical Equipment Questions
    To assist the Department to develop appropriate requirements for 
medical equipment and furniture, we are seeking information that will 
inform the rulemaking process. With respect to medical equipment, for 
each type of medical equipment it would be helpful to know details 
about the accessible features and if particular types of equipment with 
accessible features are currently available. The Department is seeking 
the following information:
    Question 1. The Department is considering adopting the Access 
Board's standards for medical diagnostic equipment. What other types of 
medical equipment and furniture should the Department include in its 
proposed regulation? What modifications to other types of medical 
equipment and furniture, including equipment and furniture used for 
treatment or other non-diagnostic purposes, such as hospital beds, 
should be included in the Department's proposed regulations?
    Question 2. The Access Board is expected to promulgate design 
standards for medical and dental diagnostic tables and chairs. Are 
there tables or chairs used for medical, dental, ophthalmology, or 
optometry

[[Page 43457]]

treatments, which are not typically used for diagnostic purposes, that 
would pose unique accessibility challenges? What modified features 
would make these tables or chairs accessible? What features would 
enhance patient stability and facilitate correct positioning?
    Question 3. What types of lifts are the safest, most efficient, and 
most cost effective in transferring patients with disabilities in 
different medical or dental settings? Should the use of lifts or staff 
to lift patients be considered a substitute for providing independent 
access to medical equipment?
    Question 4. If a hospital or medical provider uses staff to lift 
patients onto and off of medical equipment and furniture, should it be 
excused from the requirement of having lifts in any or all situations? 
What types of training programs are available to provide information to 
staff on lifting and transferring patients with disabilities? Are there 
any particular situations where lifting by staff should not be allowed?
    Question 5. What features, such as low bed heights, can best 
enhance the accessibility of hospital beds and gurneys? Are these 
features available on products currently available?
    Question 6. What technologies are currently available to increase 
the accessibility of infusion pumps? What types of infusion pumps are 
partially or fully operated by patients in the normal course of 
treatment?
    Question 7. What are the greatest difficulties facing individuals 
with disabilities in accessing rehabilitative and exercise equipment 
and furniture in a therapeutic setting? What equipment and furniture 
most effectively permits accessibility for different types of 
rehabilitative needs? Can different types of equipment meet different 
access needs of, for example, people with low-vision who need access to 
visual displays on equipment? Are there differences between exercise 
equipment in therapeutic settings and exercise equipment in non-
therapeutic settings (e.g., gym or fitness center)? What exercise 
equipment or machines are available to meet the needs of individuals 
with mobility impairments?
    Question 8. What types of ancillary equipment are most effective in 
different types of medical or dental examination or treatment settings?
    Question 9. Is there a need for separate standards for bariatric 
medical equipment and furniture in the Department's equipment and 
furniture regulation? If so, what equipment and furniture are necessary 
to address the needs of patients with disabilities who are obese?
x. Scoping and Triggering Events for Medical Equipment and Furniture
    If the Department proposes a rule recommending regulations 
requiring accessible medical equipment and furniture, it should provide 
guidance on the appropriate amount of different types of medical 
equipment and furniture that must be accessible. In making this 
determination, the Department might consider the size of a medical 
practice or the patient population and other factors. For example, in a 
doctor's office with two exam rooms, one accessible examination table 
might be a reasonable number of accessible examination tables. However, 
in a hospital with multiple medical departments, a reasonable number 
might include at least one accessible examination table in each 
department. Radiologic and other diagnostic equipment is highly 
specialized and a reasonable number of accessible diagnostic equipment 
in a radiology department might be one of each type of diagnostic 
equipment.
    The Department is considering proposing that entities have eighteen 
months from the date of the publication of a rule to come into 
compliance with medical equipment and furniture requirements. The 
timeframes for replacing different types of medical equipment and 
furniture may vary widely. The very high cost of some radiological and 
diagnostic equipment, such as MRI machines and CAT scans, which often 
leads medical providers to lease rather than buy them, might require a 
later effective date.
    Question 10. What are the key criteria for scoping in different 
types of medical settings? What are appropriate scoping requirements 
for each of the types of medical equipment and furniture discussed 
above?
    Question 11. How could medical providers time replacement or 
modification of equipment and furniture to ensure that individuals with 
disabilities receive equal access to healthcare without undue delay? 
What types of triggering events are appropriate for different types of 
medical equipment and furniture? Should the Department require the 
purchase rather than the replacement of some accessible equipment and 
furniture at a certain point? Should the replacement of inaccessible 
medical equipment or furniture be triggered only by the end of the 
useful life of the equipment or furniture?

B. Exercise Equipment and Furniture

    Individuals with disabilities have expressed concerns over the 
years about an inability to use exercise equipment and furniture in 
health clubs, hotel fitness centers, public recreation centers, public 
elementary, secondary, and postsecondary institutions, and other 
establishments that offer exercise facilities. The 1991 Standards 
contained no scoping or technical requirements relating to exercise 
facilities. The Department may propose additional regulations to 
enhance the accessibility and usability of exercise equipment by 
individuals with disabilities.
    Question 12. What types of accessible exercise equipment and 
furniture are available on the commercial market? What types of 
equipment and furniture are already accessible to individuals with 
disabilities? Is independently operable equipment and furniture 
available for individuals who are blind or who have low vision, or who 
have manual dexterity issues.
    Question 13. Should the Department require covered entities to 
provide accessible exercise equipment and furniture ? How much of each 
type of equipment and furniture should be provided? Should the 
requirements for accessible equipment and furniture be the same for 
small and large exercise facilities, and if not, how should they 
differ?

C. Accessible Golf Cars

    The Department is considering issuing regulations specific to golf 
cars and may propose requiring golf courses that provide golf cars, 
when replacing or acquiring additional standard golf cars, to provide 
accessible golf cars for use by individuals with disabilities.
    An accessible golf car means a device that is designed and 
manufactured to be driven on all areas of a golf course, is 
independently usable by individuals with mobility disabilities, has a 
hand operated brake and accelerator, carries golf clubs in an 
accessible location, and has a seat that both swivels and rises to put 
the golfer in a standing or semi-standing position. The 1991 regulation 
contained no language specifically referencing accessible golf cars. 
Although the 2004 ANPRM raised the possibility of requiring that golf 
courses make at least one specialized golf car available for the use of 
individuals with disabilities, the Department stated in the 2008 NPRM 
that it was not going to propose a specific requirement at that time. 
The Department of Defense has required the use of single-rider 
accessible golf cars in federally-owned golf courses pursuant to 
Section 664 of the John Warner National Defense Authorization Act for 
Fiscal Year 2007 (Pub. L. 109-364).

[[Page 43458]]

    Question 14. What is the most effective means of addressing the 
needs of golfers with mobility disabilities? Are golf cars currently 
available that are readily adaptable for the addition of hand controls 
and swivel seats? If so, are those cars suitable for driving on greens? 
To what extent are accessible golf cars of all types stable, 
lightweight, and moderately priced?
    Question 15. What are appropriate scoping requirements for 
accessible golf cars? Should the criteria used to determine scoping 
stem from factors including the number of golf course patrons, the 
number of golfing holes (e.g. nine, 18, or 27) at the facility, the 
number of inaccessible golf cars in use, or other criteria? Should each 
18-hole course be required to provide a certain number of accessible 
golf cars?

D. Beds in Accessible Guest Rooms and Sleeping Rooms

    The Department is considering regulating the accessibility of beds 
in accessible guest rooms and sleeping rooms, such as dormitories in 
educational institutions and social service establishments. Many 
individuals with disabilities have urged the Department to regulate the 
height of beds, particularly in accessible hotel guest rooms, and to 
require that such beds have clearance under the bed to accommodate a 
mechanical lift. In recent years, hotels have provided higher beds, 
using thicker mattresses that make it difficult or impossible for many 
individuals who use wheelchairs to transfer onto the beds. Some of 
these mattresses have pillow tops that raise the height of the bed by 
several inches and then, once the individual has transferred to it, 
compress and reduce the height of the bed. Thus, a bed with a pillow 
top that is low enough to transfer to from a wheelchair may be too low, 
once it is compressed, to transfer safely back to the wheelchair. In 
addition, many hotel beds use a solid-sided platform base for beds with 
no clearance underneath, which prevents the use of a portable lift to 
transfer an individual onto the bed.
    Question 16. Should the Department develop a general standard that 
specifies requirements for beds wherever accessible sleeping 
accommodations are required? What are appropriate bed heights to ensure 
accessibility by individuals with mobility disabilities and should 
there be requirements for mattresses to ensure that the height of the 
mattress, even when compressed by the weight of a person sitting or 
laying down on it, remains within a certain range? Are there existing 
standards that the Department should look to for developing standards 
for beds in accessible rooms? What is the optimal clearance needed 
under a bed to accommodate a mechanical lift? Should any such 
requirements apply to all accessible guestrooms or sleeping rooms or 
only to a percentage of them? What time line should the Department 
establish for requiring accessible beds in accessible guest rooms and 
sleeping rooms and should such a time line be phased in?

E. Beds in Nursing Homes and Other Care Facilities

    Nursing homes, assisted living facilities, and other care 
facilities may have beds that are too high or too low, which can be a 
problem for individuals with disabilities. In addition, many of these 
beds have electronic controls and switches that may not be accessible 
for individuals with mobility, dexterity, or visual or auditory 
disabilities. The Department may propose regulations to ensure the 
accessibility of beds in nursing homes and other care facilities.
    Question 17. Should the standards be different for adjustable beds, 
such as hospital beds, and for fixed height beds? Should the Department 
treat beds in nursing homes in the same manner as beds in hospitals? 
Should the Department treat beds in nursing homes or hospitals in the 
same manner as it treats beds in places of lodging? Should all 
accessible rooms have adjustable beds?

F. Electronic and Information Technology

    The Department believes that it is important for individuals with 
disabilities to have an equal opportunity to use electronic and 
information technology (EIT) equipment and furniture, such as kiosks, 
interactive transaction machines (ITMs), point-of-sale (POS) devices, 
and automated teller machines (ATMs). Individuals with disabilities who 
engage in financial or other transactions should be able to do so 
independently and not have to provide third parties with private 
financial information, such as a personal identification number (PIN). 
Equipment and furniture are covered for both physical access and 
effective communication.
    Among the available equipment and furniture that use EIT are 
kiosks, which are interactive computer terminals that provide a wide 
range of services, including information sharing, ticketing, airline 
check-in, Internet access, movie ticket sales and DVD rentals, security 
screening, bill paying, and photo developing. ITMs include POS devices, 
such as credit card payment terminals, retail store self-checkout 
stations, machines used for ordering food at quick service restaurants, 
and gas station pay-at-the-pump systems. The number of POS machines 
used by businesses and state and local programs and activities (such as 
at student unions at state colleges and universities) nationwide 
continues to increase, as does the range of transactions handled by 
these machines. With the advent of touch screen technology, customers 
are now required to enter data using a flat screen while reading 
changing visual information and instructions. Persons who cannot see 
the flat screen must rely on other people to input their information, 
including their personal identification numbers (PINs). At least one 
state (California) already requires all check-out locations with a flat 
screen POS device to have a permanently attached tactile keypad that is 
usable by individuals with visual disabilities. Cal. Fin. Code 13082 
(West 2006). While some POS devices are mounted at a height that fits 
within current reach range guidelines, the Department is aware that the 
fixed upward orientation of some of these devices can impede their 
accessibility by making it difficult for a person with a mobility 
disability to view the screen, enter a PIN, or sign an authorization.
    The Department's preamble to its 1991 regulations explained that, 
``[g]iven that Sec.  36.304's focus is on the removal of physical 
barriers, the Department believes that the obligation to provide 
communications equipment and devices * * * is more appropriately 
determined by the requirements for auxiliary aids and services under 
Sec.  36.303.'' 56 FR 35544, 35568. The 1991 Standards contained 
requirements for physical accessibility for ATMs and also required that 
``[i]nstructions and all information for use shall be made accessible 
to and independently usable by persons with vision impairments.'' 28 
CFR part 36, app A, section 4.34.5. The Department has traditionally 
taken the position that the communication-related elements of ATMs are 
auxiliary aids and services, and are not physical elements. On March 
22, 2010, the Access Board published an ANPRM seeking public comment on 
its plans to amend the 2004 ADA/ABA Accessibility Guidelines to include 
technical guidelines for self-service machines used for ticketing, 
check-in or check-out, seat selection, boarding passes, or ordering 
food in restaurants and cafeterias. See 75 FR 13457. In the ANPRM, the 
Access Board noted the proliferation of inaccessible POS machines, 
kiosks, and other self-service machines and referenced ADA

[[Page 43459]]

litigation against various public accommodations over the past ten 
years that has resulted in numerous settlement agreements and 
structured negotiations requiring the installation of tactile POS 
devices.
    Question 18. What are the challenges posed by the inaccessibility 
of EIT, including EIT kiosks, POS devices, and ITMs? Are there issues 
regarding other uses of EIT that the Department should consider 
adopting to ensure that EIT equipment is accessible?
i. EIT for Effective Communication in Accessible Rooms
    The Department's title III regulation, 28 CFR 36.303(d)(1) requires 
places of public accommodation that provide customers, patients, or 
clients the opportunity to make outgoing telephone calls on more than 
an incidental convenience basis to make TTYs available for the use of 
customers, patients, or clients who have communication disabilities. It 
has been suggested that the Department should expand the coverage of 
this section to require covered entities to provide recognize that 
there are a wide range of devices now used as communication aids by 
individuals with disabilities. Therefore, the Department seeks comments 
regarding the incorporation of EIT into this requirement as it applies 
to accessible sleeping rooms in facilities such as hospitals, nursing 
homes, hotels, or other places of lodging to permit effective 
communication by individuals with disabilities, including those who are 
deaf or hard of hearing.
    New technologies have emerged that permit the use of EIT for 
effective communication. As telecommunication technologies are 
developing, persons with disabilities are transitioning from analog or 
legacy devices to digital telecommunication devices. Among these 
devices are video phones (including web cam), text messaging pagers and 
computers, and captioned telephones. Video relay services (VRS) permit 
individuals who use sign language for communication to use a video 
remote interpreting service (VRI). The relay services are under the 
jurisdiction of the Federal Communications Commission. Text 
communications can be divided into two types: Real time, and non-real 
time. Real-time text communications refer to those that are sent and 
received on a character-by-character basis; the characters are sent 
immediately once typed and also displayed immediately to the receiving 
person. Non-real time communications rely on messaging capabilities 
where users ``type-enter-wait-read-respond-reply''--e.g., short 
messages service (SMS) texts, multimedia messaging service (MMS), 
instant messaging (IM), text chat, and e-mail.
    Question 19. What types of EIT would permit individuals with 
communication disabilities to most effectively communicate from an 
accessible hospital room, nursing home facility, guest or sleeping 
room? Should the Department regulate effective communication from such 
facilities? What are the costs associated with various types of EIT in 
such settings?
ii. Scoping and Triggering Events for EIT Equipment
    The Department is considering possible criteria for establishing 
scoping and triggering events for EIT devices and for particular 
features of such devices, such as tactile controls or voice output. 
Such criteria might include the total number of EIT devices in a 
certain facility.
    Question 20. What are appropriate scoping criteria for the 
availability of accessible EIT and triggering events for the 
replacement or refurbishing of EIT devices, including kiosks, ITMs and 
ATMs, to ensure accessibility?

G. Other Types of Equipment and Furniture

    Different types of equipment and furniture can pose challenging 
accessibility problems or can serve as remedies to those problems. The 
Department welcomes public input on other types of equipment and 
furniture that warrant attention. For example, the Department is aware 
that equipment and furniture exists that may provide ready access for 
individuals with disabilities, including pool chairs that permit 
individuals who use wheelchairs to enter a pool with a sloped entrance 
without submerging their personal wheelchair and shower chairs for 
accessible hotel rooms with roll-in showers. The Department has learned 
that access to computer terminals in public libraries, which allow 
members of the public to access the Internet, often lack accessibility 
features (such as screen readers) and are in inaccessible locations. 
Another concern is access to television in hotels, hospitals, nursing 
homes, and other care facilities when certain television sets do not 
provide a way for consumers to turn closed captions on and off.
    Question 21. Are there other types of equipment or furniture that 
impede accessibility that should be specifically addressed in the 
Department's regulation? What types of accessible equipment or 
furniture would effectively address any such concerns? What scoping 
would adequately address the impediments to accessibility and what 
triggering event would be appropriate for each type of other equipment 
or furniture? Are there particularly helpful types of equipment or 
furniture that are not generally available to the public that may 
assist individuals with disabilities, such as pool or shower chairs?

VI. Regulatory Process Matters (SBREFA, Regulatory Flexibility Act, 
Executive Orders, Benefits and Costs)

    Since this proposal is an ANPRM, the Department is not required to 
conduct certain economic analyses or written assessments that otherwise 
may be required for more formal types of agency regulatory actions 
(e.g., notices of proposed rulemaking or final rules) that are deemed 
to be economically significant regulatory actions with an annual 
economic impact of $100 million or more or that are expected to have a 
significant economic effect on a substantial number of small entities 
or non-federal governmental jurisdictions (such as State, local, or 
tribal governments). See, e.g., Regulatory Flexibility Act of 1980, 5 
U.S.C. 603[not]04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002); E.O. 
12866, 58 FR 51735 (Sept. 30, 1993), as amended by E.O. 13497, 74 FR 
6113 (Jan. 30, 2009); OMB Budget Circular A-4, https://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 25, 
2010).
    One of the purposes of this ANPRM is to seek public comment from 
members of the disability community, public accommodations, and 
governmental entities on various topics relating to accessible 
equipment and furniture, including perspectives from stakeholders 
concerning the benefits and costs of revising the Department's titles 
II and III regulations to ensure the accessibility of equipment and 
furniture.
    Question 22. Do commenters have information available that can aid 
the Department in identifying existing accessible equipment and 
furniture? What are the costs of accessible equipment and furniture and 
how do these costs differ from the costs of inaccessible equipment and 
furniture? What are the normal replacement schedules for each of the 
types of equipment and furniture discussed in this ANPRM or other types 
proposed for coverage? What are the costs and benefits of different 
scoping requirements for different types of equipment and furniture? 
What are reasonable less costly or burdensome regulatory alternatives 
that would still achieve the objectives of the proposed

[[Page 43460]]

rules? What are the costs and benefits, both quantitatively and 
qualitatively, of providing individuals with disabilities an equal 
opportunity to access health care, recreational facilities, exercise 
equipment, furniture in hotels, nursing homes, and hospitals, and 
electronic information and transactions? The Department seeks specific 
cost information, including information on the costs and benefits, as 
well as anecdotal evidence of the costs and benefits of accessible 
equipment and furniture.

A. Impact on Small Entities

    Consistent with the Regulatory Flexibility Act of 1980 and 
Executive Order 13272, the Department must consider the impacts of any 
proposed rule on small entities, including small businesses, small 
nonprofit organizations, and small governmental jurisdictions. See 5 
U.S.C. 603-04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002). The 
Department will make an initial determination as to whether any rule it 
proposes is likely to have a significant economic impact on a 
substantial number of small entities, and if so, the Department will 
prepare an initial regulatory flexibility analysis analyzing the 
economic impacts on small entities and regulatory alternatives that 
reduce the regulatory burden on small entities while achieving the 
goals of the regulation. In response to this ANPRM, the Department 
encourages small entities to provide cost data on the potential 
economic impact of adopting a specific requirement for Web site 
accessibility and recommendations on less burdensome alternatives, with 
cost information.
    Question 23. The Department seeks input regarding the impact the 
measures being contemplated by the Department with regard to accessible 
equipment and furniture will have on small entities if adopted by the 
Department. The Department encourages you to include any cost data on 
the potential economic impact on small entities with your response.
    Question 24. Are there alternatives that the Department can adopt, 
which were not previously discussed, that will alleviate the burden on 
small entities? Should there be different compliance requirements or 
timetables for small entities that take into account the resources 
available to small entities or should the Department adopt an exemption 
for certain or all small entities from coverage of the rule, in whole 
or in part. Please provide as much detail as possible in your response.

    Dated: July 21, 2010.
Thomas E. Perez,
Assistant Attorney General, Civil Rights Division.
[FR Doc. 2010-18331 Filed 7-22-10; 4:15 pm]
BILLING CODE 4410-13-P