Nondiscrimination on the Basis of Disability; Accessibility of Medical Diagnostic Equipment of State and Local Government Entities, 2183-2195 [2024-00553]

Agencies

• Department of Justice

[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Proposed Rules]
[Pages 2183-2195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00553]


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DEPARTMENT OF JUSTICE

28 CFR Part 35

[Docket Number CRT 143 AG Order No. 5852-2024]
RIN 1190-AA78


Nondiscrimination on the Basis of Disability; Accessibility of 
Medical Diagnostic Equipment of State and Local Government Entities

AGENCY: Civil Rights Division, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice (``Department'') is proposing to 
revise the regulations implementing title II of the Americans with 
Disabilities Act (``ADA'') to establish specific requirements, 
including the adoption of specific technical standards and scoping 
requirements, for making accessible to the public the services, 
programs, and activities offered by State and local governments through 
their Medical Diagnostic Equipment (``MDE'').

DATES: All comments must be submitted on or before February 12, 2024. 
Commenters should be aware that the electronic Federal Docket 
Management System (``FDMS'') will accept comments submitted prior to 
midnight Eastern Time on the last day of the comment period. Comments 
received after the close of the comment period are highly disfavored 
and will be marked ``late.'' The Department is not required to consider 
late comments.

ADDRESSES: You may submit comments, identified by RIN 1190-AA78, by any 
one of the following methods:
     Federal eRulemaking website: https://www.regulations.gov. 
Follow the website's instructions for submitting comments.
     Overnight, courier, or hand delivery: Disability Rights 
Section, Civil Rights Division, U.S. Department of Justice, 150 M St. 
NE, 9th Floor, Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Rebecca B. Bond, Chief, Disability 
Rights Section, Civil Rights Division, U.S. Department of Justice, at 
(202) 307-0663 (voice or TTY). This is not a toll-free number. 
Information may also be obtained from the Department's toll-free ADA 
Information Line at (800) 514-0301 (voice) or (833) 610-1264 (TTY). You 
may obtain copies of this notice of proposed rulemaking (``NPRM'') in 
an alternative format by calling the ADA Information Line at (800) 514-
0301 (voice) or (833) 610-1264 (TTY). A link to this NPRM is also 
available on https://www.ada.gov.

Electronic Submission of Comments and Posting of Public Comments

    Interested persons are invited to participate in this rulemaking by 
submitting written comments on all aspects of this rule via one of the 
methods and by the deadline stated above. When submitting comments, 
please include ``RIN 1190-AA78'' in the subject field. The Department 
also invites comments that relate to the economic, environmental, or 
federalism effects that might result from this rule. Comments that will 
provide the most assistance to the Department in developing this rule 
will reference a specific portion of the rule or respond to a specific 
question, explain the reason for any recommended change, and include 
data, information, or authority that support such recommended change.
    Please note that all comments received are considered part of the 
public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifiable 
information (``PII'') (such as your name and address). Interested 
persons are not required to submit their PII in order to comment on 
this rule. However, any PII that is submitted is subject to being 
posted to the publicly accessible https://www.regulations.gov site 
without redaction.
    Confidential business information clearly identified as such in the 
first paragraph of the comment will not be placed in the public docket 
file.
    The Department may withhold from public viewing information 
provided in comments that it determines may impact the privacy of an 
individual or is offensive. For additional information, please read the 
Privacy Act notice that is available via the link in the footer of 
https://www.regulations.gov. To inspect the agency's public docket file 
in person, you must make an appointment with the agency. Please see the 
FOR FURTHER INFORMATION CONTACT paragraph above for agency contact 
information.

SUPPLEMENTARY INFORMATION 

I. Executive Summary

    In this NPRM, the Department is proposing to revise its title II 
ADA regulations, 28 CFR part 35, to adopt the standards for accessible 
MDE issued by the Architectural and Transportation Barriers Compliance 
Board (``Access Board''), 36 CFR part 1195, app. (``MDE Standards''). 
The Access Board issued the MDE Standards under section 510 of the 
Rehabilitation Act, 29 U.S.C. 794f. The Department is proposing to 
adopt specific technical standards and scoping requirements under the 
ADA to ensure that MDE used by public entities to offer services, 
programs, and activities at places such as hospitals and other health 
care facilities is accessible to individuals with disabilities. MDE 
includes things like medical examination tables, weight scales, dental 
chairs, and radiological diagnostic equipment. Without accessible MDE, 
individuals with disabilities may not be afforded an equal opportunity 
to receive medical care, including routine examinations, which could 
have serious implications for their health. A lack of accessible MDE 
may also undermine the quality of care received by individuals with 
disabilities, ``leading to delayed and incomplete care, missed 
diagnoses, exacerbation of the original disability, and increases in 
the likelihood of the development of secondary conditions.'' \1\ For 
instance, patients

[[Page 2184]]

with disabilities have had to forgo Pap smears because they could not 
safely transfer from their wheelchairs to a fixed-height exam table.\2\ 
Similarly, inaccessible mammography machines have contributed to low 
breast cancer screening rates for patients with disabilities.\3\
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    \1\ Nat'l Council on Disability, Enforceable Accessible Medical 
Equipment Standards: A Necessary Means to Address the Health Care 
Needs of People with Mobility Disabilities 7 (May 20, 2021), https://ncd.gov/sites/default/files/Documents/NCD_Medical_Equipment_Report_508.pdf (``NCD Report'') [https://perma.cc/6W4U-TVEX].
    \2\ See id. at 17.
    \3\ See id. at 18.
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    Section 510 requires the Access Board to promulgate regulatory 
standards setting forth minimum technical criteria for MDE used in 
physicians' offices, clinics, emergency rooms, hospitals, and other 
medical settings.\4\ Under the statute, the standards must ensure that 
such equipment is accessible to, and usable by, individuals with 
accessibility needs, which include people with disabilities, and must 
allow independent entry to, use of, and exit from the equipment by such 
individuals to the maximum extent possible. Section 510 does not give 
the Access Board authority to enforce these standards.\5\ Compliance 
with the standards is mandatory only if an enforcing authority adopts 
the standards as mandatory for entities subject to its jurisdiction.\6\ 
In this NPRM, the Department proposes to adopt the MDE Standards under 
title II of the ADA.
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    \4\ 29 U.S.C. 794f(a).
    \5\ See id. at 794f.
    \6\ See 36 CFR 1195.1 (``Other agencies, referred to as an 
enforcing authority in the standards, may adopt the standards as 
mandatory requirements for entities subject to their 
jurisdiction.''); 36 CFR pt. 1195, app., sec. M102.1 (stating that 
enforcing authorities may include the Department of Justice).
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II. Background

A. Statutory and Rulemaking Overview

    Title II of the ADA protects qualified persons with disabilities 
from discrimination on the basis of disability in services, programs, 
and activities provided by State and local government entities. 42 
U.S.C. 12132.
    The ADA authorizes the Attorney General to promulgate regulations 
to carry out the provisions of title II, with the exception of certain 
discrete transportation provisions.\7\ The ADA also authorizes the 
Attorney General to promulgate regulations to carry out the provisions 
of title III, which focuses on public accommodations.\8\ In 1991, the 
Department issued its final rules implementing titles II and III, which 
were codified at 28 CFR part 35 (title II) and part 36 (title III) and 
adopted the ADA Standards for Accessible Design.\9\
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    \7\ 42 U.S.C. 12134.
    \8\ Id. 12186(b).
    \9\ 56 FR 35694 (July 26, 1991); 56 FR 35544 (July 26, 1991).
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    In 2004, the Department published an advance notice of proposed 
rulemaking (``2004 ANPRM'') to begin the process of updating the 1991 
regulations and to adopt revised ADA Standards based on the relevant 
parts of the Access Board's 2004 ADA/Architectural Barriers Act 
Accessibility Guidelines (``2004 ADA/ABA Guidelines'').\10\ The 2004 
ANPRM asked for public comment on a range of issues not specifically 
addressed in the ADA regulations, including coverage of movable or 
portable equipment and furniture.\11\ The Department subsequently 
issued an NPRM in 2008.\12\ Although public comments in response to the 
ANPRM had supported the promulgation of specific accessibility 
standards for equipment and furniture, the Department's 2008 NPRM 
announced its decision not to address equipment and furniture at that 
time.\13\ Instead, the Department continued its approach of requiring 
covered entities to provide accessible equipment and furniture as 
needed to comply with the ADA's general nondiscrimination requirements 
under the Department's existing regulations.
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    \10\ 69 FR 58768 (Sept. 30, 2004); see also 69 FR 44084 (July 
23, 2004).
    \11\ 69 FR at 58774-75.
    \12\ 73 FR 34466 (June 17, 2008).
    \13\ Id. at 34474-75.
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    On July 26, 2010, the Department announced its plan to issue final 
rules updating its title II and III regulations and adopting standards 
consistent with 2004 ADA/ABA Guidelines and the requirements contained 
in 28 CFR 35.151, naming them the 2010 ADA Standards for Accessible 
Design (``2010 ADA Standards'').\14\ On that same day, the Department 
issued an ANPRM to consider possible changes to requirements under the 
ADA to ensure that equipment and furniture, including MDE, used in 
services, programs, and activities provided by State and local 
governments and public accommodations, are accessible to people with 
disabilities.\15\ The Department subsequently bifurcated the rulemaking 
considered in the 2010 ANPRM with the intent to address the 
accessibility requirements for MDE in a separate rulemaking.\16\ 
However, in December 2017, the Department withdrew the 2010 ANPRM to 
reevaluate whether the imposition of specific regulatory standards for 
the accessibility of non-fixed equipment and furniture was necessary 
and appropriate.\17\
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    \14\ See U.S. Dep't of Just., Justice Department's 2010 ADA 
Standards for Accessible Design Go into Effect (Mar. 15, 2012), 
https://www.justice.gov/opa/pr/justice-department-s-2010-ada-standards-accessible-design-go-effect [https://perma.cc/52UB-WRR4]. 
These final rules were published on September 15, 2010. See 75 FR 
56164 (Sept. 15, 2010); 75 FR 56236 (Sept. 15, 2010).
    \15\ 75 FR 43452 (July 26, 2010).
    \16\ See, Off. of Mgmt. & Budget, Off. of Info. and Regul. 
Affs., Unified Agenda of Federal Regulatory and Deregulatory Actions 
(Fall 2011), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201110&RIN=1190-AA66 [https://perma.cc/D6TE-RUHR].
    \17\ 82 FR 60932 (Dec. 26, 2017).
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    In 2021, the Department indicated its plan to issue an ANPRM on 
possible revisions to its ADA regulations to ensure the accessibility 
of equipment and furniture in public entities' and public 
accommodations' programs and services.\18\ Subsequently, in 2022, the 
Department decided to bifurcate this rulemaking and announced that it 
planned to publish a separate ANPRM that solely addresses the 
accessibility of MDE under both title II and title III.\19\ The 
Department has since decided to proceed with its MDE rulemaking under 
title II through an NPRM, rather than first issuing an ANPRM. The 
Department has received complaints indicating that more specific 
technical guidance would help give covered entities and individuals 
with disabilities more clarity about existing obligations and rights 
concerning the accessibility of MDE under title II.
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    \18\ See Off. of Mgmt. & Budget, Off. of Info. and Regul. Affs., 
Unified Agenda of Federal Regulatory and Deregulatory Actions (Fall 
2021), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1190-AA76 [https://perma.cc/D6TE-RUHR].
    \19\ See Off. of Mgmt. & Budget, Off. of Info. and Regul. Affs., 
Unified Agenda of Federal Regulatory and Deregulatory Actions 
(Spring 2022), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202204&RIN=1190-AA78 [https://perma.cc/8BJ3-RYYY] (explaining that ``[t]he Department previously announced that 
it intends to issue an ANPRM, titled Nondiscrimination on the Basis 
of Disability by State and Local Governments and Places of Public 
Accommodation; Equipment and Furniture (RIN 1190-AA76) addressing 
possible revisions to its ADA regulations to ensure the 
accessibility of equipment and furniture generally. However, the 
Department has decided to publish a separate ANPRM that solely 
addresses the accessibility of medical diagnostic equipment (MDE) 
under titles II and III of the ADA, given the specialized nature of 
MDE.'').
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    The Department is coordinating its publication of this proposed 
rule with the Department of Health and Human Services (``HHS''), which 
issued an NPRM under section 504 of the Rehabilitation Act of 1973, 29 
U.S.C. 794, that addresses the accessibility of MDE for recipients of 
Federal financial assistance.\20\ Title II is modeled on

[[Page 2185]]

section 504,\21\ and title II and section 504 are generally understood 
to impose similar requirements, given the similar language employed in 
the ADA and the Rehabilitation Act.\22\ The legislative history of the 
ADA makes clear that title II was intended to extend the requirements 
of section 504 to apply to all State and local governments, regardless 
of whether they receive Federal funding, demonstrating Congress's 
intent that title II and section 504 be interpreted consistently.\23\
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    \20\ 88 FR 63392 (Sept. 14, 2023).
    \21\ See, e.g., H.R. Rep. No. 101-485(II), at 84 (1990).
    \22\ See, e.g., 42 U.S.C. 12201(a).
    \23\ See H. Rep. No. 101-485(II), at 84 (1990).
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    The legislative history of the Rehabilitation Act Amendments of 
1992 \24\ states that the revisions to the Rehabilitation Act's 
findings, purpose, and policy provisions are ``a reaffirmation of the 
precepts of the Americans with Disabilities Act,'' \25\ and that these 
principles are intended to guide the Rehabilitation Act's policies, 
practices, and procedures.\26\ Further, courts interpret the ADA and 
section 504 consistently.\27\ Thus, the Department believes there is 
and should be parity between the relevant provisions of title II and 
section 504.
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    \24\ Public Law 102-569 (1992).
    \25\ S. Rep. No. 102-357, at 14 (1992).
    \26\ See id.; see also H.R. Rep. No. 102-822, at 81 (1992).
    \27\ See, e.g., Smith v. Harris Cnty., 956 F.3d 311, 317 (5th 
Cir. 2020); K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 
F.3d 1088, 1098 (9th Cir. 2013).
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    Given the relationship between title II and section 504 and 
congressional intent that the two disability rights laws be interpreted 
consistently, both Departments are proceeding with rulemakings that 
provide the same requirements, one for public entities subject to title 
II of the ADA and the other for recipients of Federal financial 
assistance from HHS.
    The Department will continue to consider the remaining issues 
concerning MDE under title III as well as equipment and furniture under 
both titles, although those issues are not the subjects of rulemaking 
at this time.

B. Legal Foundation for Accessible MDE

    This NPRM applies to health care services, programs, and activities 
that public entities offer through or with the use of MDE. Title II of 
the ADA prohibits discrimination on the basis of disability in all 
services, programs, and activities offered by public entities.\28\ 
Through this mandate and the Department's implementing regulations, the 
ADA requires public entities to provide accessible equipment and 
furniture as necessary to comply with title II's reasonable 
modification, effective communication, and program accessibility 
requirements. However, the Department has never adopted specific 
technical standards that address what constitutes accessible MDE.
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    \28\ 42 U.S.C. 12132.
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    Under title II, public entities must provide reasonable 
modifications when necessary to avoid discrimination on the basis of 
disability unless those modifications would fundamentally alter the 
nature of the public entity's service, program, or activity.\29\ Title 
II entities also must ensure that communications with individuals with 
disabilities are as effective as communications with others, including 
through the provision of appropriate auxiliary aids and services.\30\ 
These auxiliary aids include the ``[a]cquisition or modification of 
equipment or devices.'' \31\
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    \29\ 28 CFR 35.130(b)(7)(i).
    \30\ See 28 CFR 35.160.
    \31\ 28 CFR 35.104; see also 36 CFR pt. 1195, app., sec. M306.1 
(setting forth technical standards for MDE that communicates 
instructions or other information to the patient).
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    Under the program accessibility requirement of title II, no 
qualified individual with a disability shall, because a public entity's 
facilities are inaccessible to or unusable by individuals with 
disabilities, be excluded from participation in, or be denied the 
benefits of the services, programs, or activities of a public entity, 
or be subjected to discrimination by any public entity.\32\ A public 
entity must operate each service, program, or activity so that, when 
viewed in its entirety, the service, program, or activity is readily 
accessible to and usable by persons with disabilities, subject to a 
defense of fundamental alteration or undue burden.\33\ A public entity 
may comply with the program accessibility requirement through such 
means as redesign or acquisition of equipment.\34\
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    \32\ Id. 35.149.
    \33\ Id. 35.150(a).
    \34\ Id. 35.150(b)(1).
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C. Overview of Access Board's MDE Standards

    In implementing the mandate set forth in section 510 of the 
Rehabilitation Act to promulgate technical standards for accessible 
MDE, the Access Board received input from various stakeholders through 
a multi-year deliberative process and published the MDE Standards on 
January 9, 2017.\35\ The Access Board divides the MDE Standards into 
four separate technical criteria based on how the equipment is used by 
the patient: (1) supine, prone, or side-lying position; (2) seated 
position; (3) seated in a wheelchair; and (4) standing position.\36\ 
For each category of use, the MDE Standards provide for independent 
entry to, use of, and exit from the equipment by patients with 
disabilities to the maximum extent possible.
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    \35\ 82 FR 2810 (Jan. 9, 2017).
    \36\ 36 CFR pt. 1195, app., sec. M301-04.
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    The technical requirements for MDE used by patients in the supine, 
prone, or side-lying position (such as examination tables) and MDE used 
by patients in the seated position (such as examination chairs) focus 
on ensuring that the patient can transfer from a mobility device onto 
the MDE.\37\ The other two categories set forth the necessary technical 
requirements to allow the patient to use the MDE while seated in their 
wheelchair (such as during a mammogram) or while standing (such as on a 
weight scale), respectively.\38\ The MDE Standards also include 
technical criteria for supports, including for transfer, standing, leg, 
head, and back supports; instructions or other information communicated 
to patients through the equipment; and operable parts used by 
patients.\39\
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    \37\ See id. sec. M301-02.
    \38\ See id. sec. M303-04.
    \39\ See id. sec. M305-07.
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    The Access Board's MDE Standards currently contain a temporary 
standard governing the minimum low height requirement for transfers 
from diagnostic equipment used by patients in a supine, prone, side-
lying, or seated position.\40\ Specifically, the temporary standard 
provides for a minimum low transfer height requirement of 17 inches to 
19 inches. The temporary nature of this standard was due to 
insufficient data on the extent to which, and how many, individuals 
would benefit from a transfer height lower than 19 inches. While this 
temporary standard is in effect, any low transfer height between 17 and 
19 inches will meet the MDE Standards. Under a sunset provision, as 
extended, this low height range remains in effect only until January 
10, 2025.\41\
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    \40\ See id. sec. M301.2.1, 302.2.1.
    \41\ See id. sec. M301.2.2, 302.2.2; 87 FR 6037 (Feb. 3, 2022).
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    On May 23, 2023, the Access Board issued an NPRM that proposes 
removing the sunset provisions in the Board's existing MDE Standards 
related to the low height specifications for transfer surfaces, and 
replacing them with final specifications for the low transfer height of 
medical diagnostic equipment used in the supine, prone, side-lying, and 
seated positions.\42\ Following an extension, the comment period for 
that

[[Page 2186]]

NPRM closed on August 31, 2023.\43\ After the Access Board analyzes the 
comments that it receives, the Board will issue a final, updated 
minimum low transfer height standard. After this new standard is 
adopted, the Department will consider issuing a supplemental rulemaking 
under title II proposing to adopt the updated standards.
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    \42\ 88 FR 33056 (May 23, 2023).
    \43\ 88 FR 50096 (Aug. 1, 2023).
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D. Need for the Adoption of MDE Standards

    The accessibility of MDE is essential to providing equal access to 
medical care to people with disabilities. In developing this proposed 
subpart, the Department considered the well-documented barriers that 
individuals with disabilities face when accessing MDE, as well as the 
benefits for people with disabilities and health care workers alike of 
using accessible MDE.\44\ The accessibility or inaccessibility of MDE 
impacts a substantial population--according to an estimate by the 
Centers for Disease Control and Prevention, approximately 61 million 
adults live with a disability in the U.S., and 13.7 percent of those 
individuals have a mobility disability with serious difficulty walking 
or climbing stairs.\45\ According to a 2022 estimate by the U.S. Census 
Bureau, over 44 million people with disabilities live outside of 
institutional settings in the United States, and the most common 
category of disability is mobility or ambulatory impairment.\46\
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    \44\ Nat'l Council on Disability, The Current State of Health 
Care for People with Disabilities (Sept. 30, 2009), https://files.eric.ed.gov/fulltext/ED507726.pdf [https://perma.cc/5FR5-DZU6]; see, e.g., Dep't of Health & Human Servs., Administration for 
Community Living, Wheelchair-Accessible Medical Diagnostic 
Equipment: Cutting Edge Technology, Cost-Effective for Health Care 
Providers, and Consumer-Friendly (July 26, 2019), https://acl.gov/sites/default/files/Aging%20and%20Disability%20in%20America/MDE%20Fact%20Sheet%20Final.docx [https://perma.cc/GW83-62WW].
    \45\ U.S. Dep't of Health & Human Servs., Ctrs. for Disease 
Control & Prevention, Disability Impacts All of Us, https://www.cdc.gov/ncbddd/disabilityandhealth/documents/disabilities_impacts_all_of_us.pdf [https://perma.cc/AX9E-9WU3].
    \46\ U.S. Census Bureau, American Community Survey, Disability 
Characteristics, https://data.census.gov/cedsci/table?t=Disability&tid=ACSST1Y2019.S1810 [https://perma.cc/KX82-VMYD].
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    While not all individuals with a mobility disability with serious 
difficulty walking or climbing stairs or individuals with mobility or 
ambulatory impairments will require accessible MDE, or benefit from it 
to the same extent, significant portions of these populations will 
benefit from accessible MDE. Further, a number of studies and reports 
have shown that individuals with disabilities may be less likely to get 
routine or preventative medical care than people without disabilities 
because of barriers to accessing appropriate care through MDE.\47\ In 
one case, a patient with a disability remained in his wheelchair for 
the entirety of his annual physical exam, which consisted of his doctor 
listening to his heart and lungs underneath his clothing, looking 
inside his ears and throat, and then stating, ``I assume everything 
below the waist is fine.'' \48\ In another case, a patient with a 
disability could be transferred to a standard exam table, but extra 
staff was needed to keep her from falling off the table since it did 
not have any side rails. As a result of this and a number of other 
frightening experiences, the patient avoided going to the doctor unless 
she was very ill.\49\ Multiple studies have found that individuals with 
certain disabilities face barriers to accessing MDE and are often 
denied accessible MDE by their health care providers.\50\ Accessible 
MDE is thus often critical to a public entity's ability to provide a 
person with a disability equal access to, and opportunities to benefit 
from, its health care services, programs, and activities.
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    \47\ See, e.g., Anna Marrocco & Helene J. Krouse, Obstacles to 
Preventive Care for Individuals with Disability: Implications for 
Nurse Practitioners, 29 J. Am. Ass'n of Nurse Pract. 282, 289 (May 
2017); U.S. Dep't of Health & Human Servs., Office of the Surgeon 
Gen., The Surgeon General's Call to Action to Improve the Health and 
Wellness of Persons with Disabilities (2005), https://www.ncbi.nlm.nih.gov/books/NBK44667/ [https://perma.cc/77DZ-WRM9]; 
NCD Report at 14.
    \48\ NCD Report at 15.
    \49\ Id. at 16-17.
    \50\ See Anne Ordway et al., Health Care Access and the 
Americans with Disabilities Act: A Mixed Methods Study, 14 
Disability and Health J. 1, 2, 5 (2021) (stating that of 562 people 
with disabilities surveyed, 27 percent had difficulty accessing exam 
tables); see also Jennifer L. Wong et al., Identification of Targets 
for Improving Access to Care in Persons with Long Term Physical 
Disabilities, 12 Disability and Health J. 366, 369 (2019) (stating 
that of the 462 people who needed a height-adjustable examination 
table, 56 percent received it).
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    In the over 30 years since the ADA was enacted, the Department, in 
implementing and enforcing the ADA, has gained a better understanding 
of the ongoing barriers posed by inaccessible MDE and the solutions 
provided by accessible MDE. The Department has received numerous 
complaints from patients with disabilities whose health care providers 
have forgone the most basic of care--from performing a full body 
examination to obtaining an accurate weight before administering 
anesthesia--because of the lack of accessible MDE. In recognition of 
the importance of accessible health care, the Department launched the 
Barrier-Free Health Care Initiative, which, among other goals, sought 
to advance physical access to medical care for people with 
disabilities. As part of this initiative, the Department has entered 
into numerous settlement agreements with health care providers that 
have required the providers to purchase accessible MDE, including 
patient lifts and examination and treatment equipment, for their 
facilities.\51\ These settlement agreements, and a description of the 
Barrier-Free Health Care Initiative, are available to the public at 
https://www.ada.gov/barrierfreehealthcare.htm[https://perma.cc/9TT7-BCRN].
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    \51\ See, e.g., Settlement Agreement between the United States 
and Charlotte Radiology, P.A. (Aug. 13, 2018), https://archive.ada.gov/charlotte_radiology_sa.html [https://perma.cc/ZC5W-LV3M]; Settlement Agreement between the United States and Tufts 
Medical Center (Feb. 28, 2020), https://archive.ada.gov/tufts_medical_ctr_sa.html [https://perma.cc/YQG3-ZDZC].
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    The Department has also consistently provided information to 
covered entities on how they can make their health care services, 
programs, and activities accessible to individuals with mobility 
disabilities. For example, the Department and the Department of Health 
and Human Services jointly issued a technical assistance document on 
medical care for people with mobility disabilities, addressing how 
accessible MDE can be critical to ensure that people with disabilities 
receive medical services equal to those received by people without 
disabilities.\52\ In particular, the document explains that the 
``[a]vailability of accessible medical equipment is an important part 
of providing accessible medical care, and doctors and other providers 
must ensure that medical equipment is not a barrier to individuals with 
disabilities.'' \53\ The guidance also provides examples of accessible 
medical equipment, including adjustable-height exam tables and chairs, 
wheelchair-accessible scales, adjustable-height radiologic equipment, 
portable floor and overhead track lifts, gurneys, and stretchers, and 
it discusses how people with mobility disabilities use this equipment.
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    \52\ See U.S. Dep't of Just., Civ. Rts. Div., Access to Medical 
Care for Individuals with Mobility Disabilities, https://www.ada.gov/resources/medical-care-mobility/ [https://perma.cc/UH8Y-NZWL] (June 26, 2020).
    \53\ Id.
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    The Department recognizes that in addition to its efforts to 
enforce and provide technical assistance on the ADA to ensure that 
people with disabilities have equal access to medical care, providing 
enforceable technical standards will help ensure clarity to

[[Page 2187]]

public entities on how to fulfill their existing obligations under 
title II in their health care services, programs, and activities. The 
COVID-19 pandemic had a devastating and disproportionate impact on 
people with disabilities and underscored how dire the consequences may 
be for those who lack adequate access to medical care and treatment. As 
the National Council on Disability (NCD) Report on accessible medical 
equipment standards notes, significant health care disparities for 
persons with disabilities are due in part to the lack of physical 
access to MDE, and ``[e]nsuring physical access to care through 
accessible MDE is necessary to equitably provide medical care for all 
people, and the need continues to grow.'' \54\ As a result of its 
findings, NCD called upon the Department to revise its ADA regulations 
to formally adopt the MDE Standards.\55\
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    \54\ NCD Report at 14.
    \55\ Id. at 52.
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    Accordingly, the Department is proposing changes to its ADA 
regulations that can help ensure that vital health care services, 
programs, and activities are equally available to individuals with 
disabilities. Specifically, the Department is considering adopting and 
incorporating into its title II ADA regulations the specific technical 
requirements for accessible MDE that are set forth in the Access 
Board's MDE Standards.

III. Section-by-Section Analysis

    This section details the Department's proposed changes to the title 
II ADA regulations, including the reasoning behind the proposals, and 
poses questions for public comment.

Sec.  35.104 Definitions

    The Department proposes to revise 28 CFR 35.104 to add definitions 
for the terms ``medical diagnostic equipment'' and ``Standards for 
Accessible Medical Diagnostic Equipment.''
Medical Diagnostic Equipment
    The Department proposes that the term ``medical diagnostic 
equipment'' be defined consistently with the MDE Standards, as 
``[e]quipment used in, or in conjunction with, medical settings by 
health care providers for diagnostic purposes.'' This definition 
includes the examples in 29 U.S.C. 794f, which states that the MDE 
Standards shall ``set[ ] forth the minimum technical criteria for 
medical diagnostic equipment used in (or in conjunction with) 
physician's offices, clinics, emergency rooms, hospitals, and other 
medical settings,'' and ``shall apply to equipment that includes 
examination tables, examination chairs (including chairs used for eye 
examinations or procedures, and dental examinations or procedures), 
weight scales, mammography equipment, x-ray machines, and other 
radiological equipment commonly used for diagnostic purposes by health 
professionals.'' These examples are illustrative of types of MDE but 
are not exhaustive.
Standards for Accessible Medical Diagnostic Equipment
    The Department proposes that the term ``Standards for Accessible 
Medical Diagnostic Equipment'' means the standards at 36 CFR part 1195, 
promulgated by the Access Board under section 510 of the Rehabilitation 
Act of 1973, as amended, found in the Appendix to 36 CFR part 1195.

Sec.  35.210 Requirements for Medical Diagnostic Equipment

    This section provides general accessibility requirements for 
services, programs, and activities that public entities provide through 
or with the use of MDE. Public entities must ensure that their 
services, programs, and activities offered through or with the use of 
MDE are accessible to individuals with disabilities.
    Under this general provision (barring an applicable limitation or 
defense), a public entity that provides health care cannot deny 
services that it would otherwise provide to a patient with a disability 
because the provider lacks accessible MDE. A health care provider also 
cannot require a patient with a disability to bring someone along with 
them to help during an exam. A patient may choose to bring another 
person such as a friend, family member, or personal care aide to an 
appointment, but regardless, the health care provider may need to 
provide reasonable assistance to enable the patient to receive medical 
care.\56\ Such assistance may include helping a person who uses a 
wheelchair to transfer from their wheelchair to the exam table or 
diagnostic chair.\57\ The health care provider cannot require the 
person accompanying the patient to assist.
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    \56\ See 28 CFR 35.130(b)(7).
    \57\ See U.S. Dep't of Just., Civ. Rts. Div., Access to Medical 
Care for Individuals with Mobility Disabilities, https://www.ada.gov/resources/medical-care-mobility/ [https://perma.cc/UH8Y-NZWL] (June 26, 2020).
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Sec.  35.211 Newly Purchased, Leased, or Otherwise Acquired Medical 
Diagnostic Equipment

    For MDE that public entities purchase, lease, or otherwise acquire 
more than 60 days after the publication of the final rule in the 
Federal Register, the Department proposes to adopt an approach that 
draws on the approach that the existing title II regulations applied to 
new construction and alterations of buildings and facilities.\58\ The 
Department would require that all MDE that a public entity purchases, 
leases, or otherwise acquires after the rule's effective date must be 
accessible, unless and until the proposed rule's scoping requirements, 
set forth in more detail in Sec.  35.211(b), are satisfied.
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    \58\ See generally 28 CFR 35.151.
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     Issue 1: The Department seeks public comment on whether 60 
days would be an appropriate amount of time for these requirements, 
and, if 60 days would not be an appropriate amount of time, what the 
appropriate amount of time would be.
    As in the fixed or built-in environment, this rule is proposing 
that the accessibility of MDE will be governed by a specific set of 
design standards promulgated by the Access Board that sets forth 
technical requirements for accessibility. So long as a public entity 
has the amount of accessible MDE set forth in the scoping requirements 
in Sec.  35.211(b), the public entity is not required to continue to 
obtain accessible MDE when it purchases, leases, or otherwise acquires 
MDE after the effective date. However, a public entity may choose to 
acquire additional accessible MDE after it satisfies the scoping 
requirements.
Sec.  35.211(a) Requirements for Newly Purchased, Leased, or Otherwise 
Acquired Medical Diagnostic Equipment
    Paragraph (a) would adopt the Access Board's MDE Standards as the 
standard governing whether MDE is accessible and establish one of the 
proposed rule's key requirements: that subject to applicable 
limitations and defenses, all MDE that public entities purchase, lease, 
or otherwise acquire after the effective date must meet the MDE 
Standards unless and until the public entity already has a sufficient 
amount of accessible MDE to satisfy the scoping requirements of the 
proposed rule.
    As explained above in more detail, the MDE Standards include 
technical criteria for equipment that is used when patients are either 
(1) in a supine, prone, or side-lying position; (2) in a seated

[[Page 2188]]

position; (3) in a wheelchair; or (4) in a standing position. They also 
contain standards for supports, communication, and operable parts. In 
addition, the MDE Standards also contain requirements for equipment to 
be compatible with patient lifts where a patient would transfer under 
positions (1) and (2) above.
    Consistent with the language in 29 U.S.C. 794f(b), MDE covered 
under this subpart includes examination tables, examination chairs 
(including chairs used for eye examinations or procedures, and dental 
examinations or procedures), weight scales, mammography equipment, x-
ray machines, and other radiological equipment commonly used for 
diagnostic purposes by health professionals. This section covers 
medical equipment used by health professionals for diagnostic purposes 
even if it is also used for treatment purposes.
    Given the many barriers to health care that people with 
disabilities encounter due to inaccessible MDE, adopting the MDE 
Standards will give many people with disabilities an equal opportunity 
to participate in and benefit from health care services, programs, and 
activities.
Sec.  35.211(b) Scoping
    Paragraph (b) proposes scoping requirements for accessible MDE. 
Accessibility standards generally contain scoping requirements (how 
many accessible features are needed) and technical requirements (what 
makes a particular feature accessible). For example, the 2010 ADA 
Standards provide scoping requirements for how many toilet compartments 
in a particular toilet room must be accessible and provide technical 
requirements on what makes these toilet compartments accessible.\59\ 
The MDE Standards issued by the Access Board contain technical 
requirements, but they do not specify scoping requirements. Rather, the 
MDE Standards state that ``[t]he enforcing authority shall specify the 
number and type of diagnostic equipment that are required to comply 
with the MDE Standards.'' \60\ For the technical requirements to be 
implemented and enforced effectively, it is necessary for the 
Department to provide scoping requirements to specify how much 
accessible MDE is needed for a public entity's health care service, 
program, or activity to comply with the ADA.
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    \59\ See 36 CFR pt. 1191, app. B, sec. 213.3.1.
    \60\ 36 CFR pt. 1195, app., sec. M201.
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    The scoping requirements that the Department proposes are based on 
the requirements that the 2010 ADA Standards establish for accessible 
patient sleeping rooms and parking in hospitals, rehabilitation 
facilities, psychiatric facilities, detoxification facilities, and 
outpatient physical therapy facilities.\61\ Because public entities 
must comply with title II of the ADA, many public entities are likely 
already familiar with these standards.
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    \61\ See 36 CFR pt. 1191, app. B, secs. 208.2.2, 223.2.1, 
223.2.2.
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    According to the 2010 ADA Standards, licensed medical care 
facilities and licensed long-term care facilities where the period of 
stay exceeds 24 hours shall provide accessible patient or resident 
sleeping rooms and disperse them proportionately by type of medical 
specialty.\62\ Where sleeping rooms are altered or added, the sleeping 
rooms being altered or added shall be made accessible until the minimum 
number of accessible sleeping rooms is provided.\63\ Hospitals, 
rehabilitation facilities, psychiatric facilities, and detoxification 
facilities that do not specialize in treating conditions that affect 
mobility shall have at least 10 percent of their patient sleeping 
rooms, but no fewer than one, provide specific accessibility features 
for patients with mobility disabilities.\64\ Hospitals, rehabilitation 
facilities, psychiatric facilities, and detoxification facilities that 
specialize in treating conditions that affect mobility must have 100 
percent of their patient sleeping rooms provide specific accessibility 
features for patients with mobility disabilities.\65\ In addition, at 
least 20 percent of patient and visitor parking spaces at outpatient 
physical therapy facilities and rehabilitation facilities specialized 
in treating conditions that affect mobility must be accessible.\66\
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    \62\ See 28 CFR 35.151(h); 36 CFR pt. 1191, app. B, sec. 223.1.
    \63\ See 36 CFR pt. 1191, app. B, sec. 223.1.1.
    \64\ See id. sec. 223.2.1.
    \65\ See id. sec. 223.2.2.
    \66\ See id. sec. 208.2.2.
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     Issue 2: The Department seeks public comment on whether 
and how to apply the existing scoping requirements for patient or 
resident sleeping rooms or parking spaces in certain medical facilities 
to MDE and on whether there are meaningful differences between patient 
or resident sleeping rooms, accessible parking, and MDE that the 
Department should consider when finalizing the scoping requirements.
     Issue 3: The Department seeks public comment on whether 
different scoping requirements should apply to different types of MDE 
(e.g., requiring a higher percentage of accessible exam tables and 
scales than accessible x-ray machines).
    Proposed paragraphs (b)(1) to (3) lay out scoping requirements for 
this section. Paragraph (b)(1) provides the general requirement for 
physician's offices, clinics, emergency rooms, hospitals, outpatient 
facilities, multi-use facilities, and other medical services, programs, 
and activities that do not specialize in treating conditions that 
affect mobility. When these entities use MDE to provide services, 
programs, or activities, they must ensure that at least 10 percent, but 
no fewer than one unit, of each type of equipment complies with the MDE 
Standards. For example, a medical practice with 20 examination chairs 
would be required to have two examination chairs (10 percent of the 
total) that comply with the MDE Standards. In a medical practice with 
five examination chairs, the practice would be required to have one 
examination chair that complies with the MDE Standards (because every 
entity covered by this provision must have no fewer than one unit of 
each type of equipment that is accessible). If a dental practice has 
one x-ray machine, that x-ray machine would be required to be 
accessible.
    Proposed paragraph (b)(2) provides the scoping requirement for 
rehabilitation facilities that specialize in treating conditions that 
affect mobility; outpatient physical therapy facilities; and other 
medical services, programs, and activities that specialize in treating 
conditions that affect mobility. This paragraph requires that at least 
20 percent of each type of MDE used in these types of services, 
programs, and activities, but no fewer than one unit of each type of 
MDE, must comply with the MDE Standards. Because these facilities 
specialize in treating patients who are likely to need accessible MDE, 
it is reasonable for them to have more accessible MDE than is required 
for the health care providers covered by paragraph (b)(1), who do not 
have the same specialization. The Department considered whether to 
require 100 percent of MDE in these programs to be accessible, like 
section 223.2.2 of the 2010 ADA Standards for Accessible Design, which 
requires that 100 percent of patient sleeping rooms in similar 
facilities provide specific accessibility features for patients with 
mobility disabilities. However, the Department is instead proposing a 
scoping requirement analogous to section 208.2.2 of the 2010 ADA 
Standards, which requires 20 percent of visitor and patient parking 
spaces at such facilities to be accessible. The time-limited use of MDE 
is more analogous to the use of

[[Page 2189]]

parking spaces at a rehabilitation facility than to the use of sleeping 
rooms. As with parking spaces, several different patients with mobility 
disabilities could use the same piece of MDE in a day, while patients 
generally occupy a sleeping room for all or a significant part of the 
day. Thus, the Department's proposed rule draws on the 2010 ADA 
Standards' scoping requirements by requiring at least 20 percent (but 
no fewer than one unit) of each type of equipment in use in facilities 
that specialize in treating conditions that affect mobility to meet the 
MDE Standards, and requiring at least 10 percent (but no fewer than one 
unit) of each type of equipment in use in other facilities to meet the 
MDE Standards.
     Issue 4: Because more patients with disabilities may need 
accessible MDE than need accessible parking, the Department seeks 
public comment on whether the Department's suggested scoping 
requirement of 20 percent is sufficient to meet the needs of persons 
with disabilities.
     Issue 5: The Department seeks public comment on any 
burdens that this proposed requirement or a higher scoping requirement 
might impose on public entities.
    Paragraph (b)(3) addresses facilities or programs with multiple 
departments, clinics, or specialties. The current title II ADA 
regulation requires medical care facilities that do not specialize in 
the treatment of conditions that affect mobility to disperse the 
accessible patient sleeping rooms in a manner that is proportionate by 
type of medical specialty.\67\ The proposed rule includes an analogous 
dispersion requirement. In any facility or program that has multiple 
departments, clinics, or specialties, where a service, program, or 
activity utilizes MDE, the accessible MDE required by paragraphs (b)(1) 
and (2) shall be dispersed proportionately across departments, clinics, 
or specialties. For example, a hospital that is required to have five 
accessible x-ray machines cannot place all the accessible x-ray 
machines in the orthopedics department and none in the emergency 
department. People with disabilities must have an opportunity to 
benefit from each type of medical care provided by the public entity 
that is equal to the opportunity provided to people without 
disabilities.\68\ The proposed rule would not require public entities 
to acquire additional MDE, beyond the amount specified in proposed 
paragraphs (b)(1) and (2), to ensure that accessible MDE is available 
in every department, clinic, and specialty. The Department believes 
that this approach is consistent with many provisions of the 2010 ADA 
Standards.\69\ Additionally, the Department believes that if the rule 
were to require full dispersion across every department, clinic and 
specialty, it could be difficult to determine whether the scoping 
requirements have been satisfied. For example, a clinic may be part of 
a department and also part of a specialty (or include providers with 
multiple specialties), so calculating the percentages of accessible MDE 
that each department, clinic, or specialty has could become complex. 
However, the Department also recognizes that it is critically important 
for people with disabilities to have access to all types of medical 
care. Therefore, public entities would still be required to ensure that 
all of their services, programs, and activities are accessible to and 
usable by individuals with disabilities, regardless of whether a 
specific department, clinic, or specialty would be required to acquire 
accessible MDE under proposed paragraph (b)(3).
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    \67\ 28 CFR 35.151(h). A similar dispersion requirement was not 
necessary for medical care facilities that specialize in the 
treatment of conditions that affect mobility, because 100 percent of 
patient sleeping rooms in those facilities are required to be 
accessible. See 36 CFR pt. 1191, app. B, sec. 223.2.2.
    \68\ See 28 CFR 35.130(b)(ii), 35.150(a).
    \69\ See, e.g., 36 CFR pt. 1191, app. B, secs. 221.2.3, 224.5, 
225.3.1, 235.2.1. According to these sections, when the required 
number of accessible elements has been provided, further dispersion 
is not required.
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     Issue 6: The Department seeks public comment on whether 
the proposed approach to dispersion of accessible MDE is sufficient to 
meet the needs of individuals with disabilities, including the need to 
receive different types of specialized medical care.
     Issue 7: The Department seeks public comment on whether 
additional requirements should be added to ensure dispersion (e.g., 
requiring at least one accessible exam table and scale in each 
department, clinic, or specialty, or requiring each department, clinic, 
and specialty to have a certain percentage of accessible MDE).
     Issue 8: The Department seeks information regarding:
    (a) The extent to which accessible MDE can be moved or otherwise 
shared between clinics or departments.
    (b) The burdens that the rule's proposed approach to dispersion or 
additional dispersion requirements may impose on public entities.
    (c) The burdens that the rule's proposed approach to dispersion may 
impose on people with disabilities e.g., increased wait times if 
accessible MDE needs to be located and moved; embarrassment, 
frustration, or impairment of treatment that may result if a patient 
must go to a different part of a hospital or clinic to use accessible 
MDE).
     Issue 9: The Department seeks public comment on whether 
higher, lower, or different scoping requirements than those proposed 
should be established.
     Issue 10: The Department seeks public comment on the 
burden that the proposed scoping requirements would impose on public 
entities.
Sec.  35.211(c) Requirements for Examination Tables and Weight Scales
    Paragraph (c) sets forth specific requirements for examination 
tables and weight scales. Proposed paragraph (c)(1) would require 
public entities that use at least one examination table in their 
service, program, or activity to purchase, lease, or otherwise acquire, 
within two years after the publication of this part in final form, at 
least one examination table that meets the requirements of the 
Standards for Accessible MDE, unless the entity already has one in 
place. Similarly, proposed paragraph (c)(2) requires public entities 
that use at least one weight scale in their service, program, or 
activity, to purchase, lease, or otherwise acquire, within two years 
after the publication of this part in final form, at least one weight 
scale that meets the requirements of the Standards for Accessible MDE, 
unless the entity already has one in place. This requirement is subject 
to the other requirements and limitations set forth in Sec.  35.211. 
Thus, this section does not require a public entity to acquire an 
accessible examination table and an accessible weight scale if doing so 
would result in a fundamental alteration in the nature of the service, 
program, or activity or in undue financial and administrative burdens, 
per Sec.  35.211(e) and (f). In addition, public entities may use 
designs, products, or technologies as alternatives to those prescribed 
by the MDE Standards if the criteria set forth in Sec.  35.211(d) are 
satisfied.
     Issue 11: The Department seeks public comment on the 
potential impact of the requirements in paragraph (c) on people with 
disabilities and public entities, including the impact on the 
availability of accessible MDE that will be available for purchase and 
lease. The Department also seeks public comment on whether two years 
would be an appropriate amount of time for such a requirement and, if 
two years would not be an appropriate amount of time, what the 
appropriate amount of time would be.

[[Page 2190]]

Sec.  35.211(d) Equivalent Facilitation
    Paragraph (d) specifies that a public entity may use designs, 
products, or technologies as alternatives to those prescribed by the 
MDE Standards, for example, to incorporate innovations in 
accessibility. However, this exception applies only where the public 
entity provides substantially equivalent or greater accessibility and 
usability than the MDE Standards require. It does not permit a public 
entity to use an innovation that reduces access below what the MDE 
Standards would provide. The responsibility for demonstrating 
equivalent facilitation rests with the public entity.
Sec.  35.211(e) Fundamental Alteration and Undue Burden
    Paragraph (e) addresses the fundamental alteration and undue 
financial and administrative burden defenses. While the proposed rule 
generally requires public entities to adhere to the MDE Standards when 
newly purchasing, leasing, or otherwise acquiring equipment, it does 
not require public entities to take steps that would result in a 
fundamental alteration in the nature of their services, programs, or 
activities or in an undue financial or administrative burden. These 
proposed limitations mirror the existing title II regulation at 28 CFR 
35.150(a)(3). If a particular action would result in a fundamental 
alteration or undue burden, the public entity would be obligated to 
take other action that would not result in such an alteration or such 
burdens but would nevertheless ensure that individuals with 
disabilities receive the benefits or services the public entity 
provides.
Sec.  35.211(f) Diagnostically Required Structural or Operational 
Characteristics
    Paragraph (f) incorporates what the Access Board's MDE Standards 
refer to as a General Exception.\70\ The paragraph states that, where a 
public entity can demonstrate that compliance with the MDE Standards 
would alter diagnostically required structural or operational 
characteristics of the equipment, preventing the use of the equipment 
for its intended diagnostic purpose, compliance with the Standards 
would result in a fundamental alteration and therefore would not be 
required. The Department expects that this provision will apply only in 
rare circumstances.
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    \70\ 36 CFR pt. 1195, app., sec. M201.2.
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    In such circumstances, the public entity would still be required to 
take other action that would not result in such an alteration or such 
burdens but would nevertheless ensure that individuals with 
disabilities could receive the services, programs, or activities the 
public entity provides. For example, the Department has been informed 
that certain positron emission tomography (``PET'') machines cannot 
meet the MDE Standards' technical requirements for accessibility and 
still serve their diagnostic function. If this is so, then public 
entities would not be required to make those PET machines fully 
accessible, but they would be required to take other action that would 
enable individuals with disabilities to access PET machines in some 
other way without fundamentally altering the nature of the service, 
program, or activity, or imposing an undue financial or administrative 
burden. Such actions may include assisting patients who use wheelchairs 
with transferring so that they can receive a PET scan.
     Issue 12: The Department seeks public comment on whether 
the proposed exception set forth in Sec.  35.211(f) is needed.

Sec.  35.212 Existing Medical Diagnostic Equipment

    In addition to the requirements for newly purchased, leased, or 
otherwise acquired MDE, proposed Sec.  35.212 requires that public 
entities address access barriers resulting from a lack of accessible 
MDE in their existing inventory of equipment. Here the proposed rule 
adopts an approach analogous to the concept of program accessibility in 
the existing regulation implementing title II of the ADA.\71\ Under 
this approach, public entities may make their services, programs, and 
activities available to individuals with disabilities without extensive 
retrofitting of their existing buildings and facilities that predate 
the regulations, by offering access to those programs through 
alternative methods. The Department intends to adopt a similar approach 
with MDE to provide flexibility to public entities, address financial 
concerns about acquiring new MDE, and at the same time ensure that 
individuals with disabilities will have access to public entities' 
health care services, programs, and activities.
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    \71\ 28 CFR 35.150.
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    Proposed Sec.  35.212 requires that each service, program, or 
activity of a public entity, when viewed in its entirety, be readily 
accessible to and usable by individuals with disabilities. Section 
35.212(a)(1) makes clear, however, that a public entity is not required 
to make each piece of its existing MDE accessible. Like Sec.  
35.211(e), Sec.  35.212(a)(2) incorporates the concepts of fundamental 
alteration and undue financial and administrative burden. These 
provisions do not excuse a public entity from addressing the 
accessibility of the program. If a particular action would result in a 
fundamental alteration or undue burden, the public entity would still 
be obligated to ensure that individuals with disabilities are able to 
receive the public entity's benefits and services.
Sec.  35.212(b) Methods
    Paragraph (b) sets forth various methods by which public entities 
can make their services, programs, and activities readily accessible to 
and usable by individuals with disabilities when the requirements in 
proposed Sec.  35.211 have not been triggered by the new acquisition of 
MDE. Of course, the purchase, lease, or other acquisition of accessible 
MDE may often be the most effective way to achieve program 
accessibility. However, except as stated in proposed Sec.  35.211, a 
public entity is not required to purchase, lease, or acquire accessible 
MDE if other methods are effective in achieving compliance with this 
subpart.
    For example, if doctors at a medical practice have staff privileges 
at a local hospital that has accessible MDE, the medical practice may 
be able to achieve program accessibility by ensuring that the doctors 
see a person with a disability who needs accessible MDE at the 
hospital, rather than at the local office, so long as the person with a 
disability is afforded an opportunity to participate in or benefit from 
the service, program, or activity equal to that afforded to others. 
Similarly, if a medical practice has offices in several different 
locations, and one of the locations has accessible MDE, the medical 
practice may be able to achieve program accessibility by serving the 
patient who needs accessible MDE at that location. However, such an 
arrangement would not provide an equal opportunity to participate in or 
benefit from the service, program, or activity if it was, for example, 
significantly less convenient for the patient or if the visit to a 
different location resulted in higher costs for the patient.
    Similarly, if the scoping requirements set forth in Sec.  35.211(b) 
would require a public entity's medical practice to have three height-
adjustable exam tables and an accessible weight scale, but the 
practice's existing equipment includes only one accessible exam table 
and one accessible scale, then until the practice must comply with 
Sec.  35.211, the practice could ensure that its services are readily 
accessible to and usable by people with

[[Page 2191]]

disabilities by establishing operating procedures such that, when a 
patient with a mobility disability schedules an appointment, the 
accessible MDE can be reserved for the patient's visit. In some cases, 
a public entity may be able to make its services readily accessible to 
and usable by individuals with disabilities by using a patient lift or 
a trained lift team, especially in instances in which a patient cannot 
or chooses not to independently transfer to the MDE in question.\72\
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    \72\ See U.S. Dep't of Just., Civ. Rts. Div., Access to Medical 
Care for Individuals with Mobility Disabilities (June 26, 2020), 
https://www.ada.gov/medcare_mobility_ta/medcare_ta.htm [https://perma.cc/UH8Y-NZWL].
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    If the means by which a public entity carries out its obligation 
under Sec.  35.212(a) to make its service, program, or activity readily 
accessible to and usable by individuals with disabilities is by 
purchasing, leasing, or otherwise acquiring accessible MDE, the 
requirements for newly purchased, leased, or otherwise acquired MDE set 
forth in Sec.  35.211 would apply.
     Issue 13: The Department seeks information about other 
ways that public entities can make their services, programs, and 
activities readily accessible to and usable by individuals with 
disabilities when proposed Sec.  35.211 does not apply.
    The Department is also aware that there may be initial supply 
issues for accessible MDE, particularly if a large number of public 
entities seek to purchase accessible MDE at the same time. The 
Department notes that the fundamental alteration and undue financial 
and administrative burden limitations may apply if supply chain issues 
hamper the ability of public entities to purchase, lease, or otherwise 
acquire accessible MDE.
    The proposed rule's requirements apply regardless of whether public 
entities are using MDE that is leased, purchased, or acquired through 
other means. The Department is aware that some public entities may 
lease MDE, rather than purchasing it outright. The Department's 
existing title II regulation, at 28 CFR 35.130(b)(3), provides that a 
public entity may not, directly or through contractual or other 
arrangements, use criteria or methods of administration that subject 
qualified persons with disabilities to discrimination on the basis of 
disability. The Department's existing title II regulation, at 28 CFR 
35.130(b)(1)(i)-(ii), also prohibits a public entity from, directly or 
through contractual or other arrangements, denying a qualified 
individual with a disability the opportunity to participate in or 
benefit from a service or affording a qualified individual with a 
disability an opportunity to participate in or benefit from a service 
that is not equal to the opportunity afforded others. Under these 
longstanding regulatory provisions, the manner in which a public entity 
acquires its equipment does not alter the entity's obligation to 
provide an accessible program, service, or activity. The proposed 
rule's requirements also apply if the public entity contracts with a 
third party to provide medical programs, services, or activities.
     Issue 14: The Department seeks information regarding 
public entities' leasing practices, including how many and what types 
of public entities use leasing, rather than purchasing, to acquire MDE; 
under what circumstances public entities lease equipment; whether 
leasing is limited to certain types of equipment (e.g., costlier and 
more technologically complex types of equipment); and the typical 
length of public entities' MDE lease agreements.
     Issue 15: The Department seeks information regarding 
whether there is a price differential for MDE lease agreements for 
accessible equipment.
     Issue 16: The Department seeks information regarding any 
methods that public entities use to acquire MDE other than purchasing 
or leasing.
Medical Equipment Used for Treatment, not Diagnostic, Purposes
    Many types of medical equipment other than MDE are used in the 
provision of health care. The accessibility, or lack thereof, of these 
types of equipment can determine whether people with disabilities have 
an equal opportunity to participate in and benefit from health 
services, programs, and activities. This non-diagnostic medical 
equipment may be used by public entities and includes, for example, 
devices intended to be used for therapeutic or rehabilitative care such 
as treatment tables and chairs for oncology, obstetrics, physical 
therapy, and rehabilitation medicines; lifts; infusion pumps used for 
dispensing chemotherapy drugs, pain medications, or nutrients into the 
circulatory system; dialysis chairs used while a patient's blood is 
pumped between a patient and a dialyzer; other tables or chairs 
designed for highly specialized procedures; general exercise and 
rehabilitation equipment used while seated or standing; and ancillary 
equipment \73\ needed to ensure the safety and comfort of patients in 
the use of medical equipment.\74\ Although the MDE Standards do not 
address non-diagnostic medical equipment, certain types of other 
medical equipment that are not diagnostic in purpose may still fall 
into the technical criteria categories set out by the MDE Standards 
(equipment used in (1) supine, prone, or side-lying position, (2) 
seated position, (3) while seated in a wheelchair, and (4) standing 
position; certain technical requirements concerning methods of 
communication and operable parts). As noted above, equipment used for 
both diagnostic purposes and other purposes is MDE if it otherwise 
meets the definition of MDE.
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    \73\ Ancillary equipment may include equipment such as cushions, 
bolsters, straps, sliding boards, or other items used to facilitate 
transfers and to help position patients.
    \74\ See U.S. Access Board, Medical Diagnostic Equipment 
Accessibility Standards Advisory Committee, Advancing Equal Access 
to Diagnostic Services: Recommendations on Standards for the Design 
of Medical Diagnostic Equipment for Adults with Disabilities (Dec. 
6, 2013), https://www.access-board.gov/advisory-committee-reports/mde/mde-report/ [https://perma.cc/L2WC-S89L].
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    The Department is considering adding a provision establishing that 
when the MDE Standards contain technical standards that can be applied 
to a particular piece of non-diagnostic medical equipment, the 
requirements set forth in Sec. Sec.  35.210 through 35.213 apply to the 
non-diagnostic medical equipment at issue. Although the MDE Standards 
were promulgated by the Access Board in response to a statutory mandate 
to provide standards specific to diagnostic equipment, public entities 
have an obligation under title II to provide equal opportunity to 
benefit from medical care of all types, including through the use of 
equipment that does not satisfy the definition of MDE. The Department 
seeks comment on whether to apply the Access Board's MDE Standards to 
non-diagnostic equipment--for example, because the relevant 
characteristics of some types of non-diagnostic equipment may be 
sufficiently similar to MDE to warrant applying the same standards--and 
if there is adequate justification for applying the MDE Standards' 
technical specifications to non-diagnostic equipment, which non-
diagnostic equipment should be covered. For example, infusion chairs 
used only to dispense chemotherapy drugs are not used for diagnostic 
purposes and therefore would not fall under the definition of MDE. But 
if the MDE Standards contained technical standards that could be 
applied to infusion chairs, the requirements set forth in Sec. Sec.  
35.210 through 35.213 could apply to such equipment. The Department 
seeks public comment on whether this rule should apply to medical 
equipment that

[[Page 2192]]

is not used for diagnostic purposes, and if so, in what situations it 
should apply.
     Issue 17: If this rule were to apply to medical equipment 
that is not used for diagnostic purposes:
    [cir] Should the technical standards set forth in the Standards for 
Accessible Medical Diagnostic Equipment be applied to non-diagnostic 
medical equipment, and if so, in what situations should those technical 
standards apply to non-diagnostic medical equipment?
    [cir] Are there particular types of non-diagnostic medical 
equipment that should or should not be covered?

Sec.  35.213 Qualified Staff

    The proposed rule requires public entities to ensure that their 
staff are able to successfully operate accessible MDE, assist with 
transfers and positioning of individuals with disabilities, and carry 
out the program access obligation with respect to existing MDE. This 
will enable public entities to carry out their obligation to make the 
programs, services, and activities that they offer through or with the 
use of MDE readily accessible to and usable by individuals with 
disabilities. The Department believes that public entities must have, 
at all times when services are provided to the public, appropriate and 
knowledgeable personnel who can operate MDE in a manner that ensures 
services are available and timely provided. Often, the most effective 
way for public entities to ensure that their staff are able to 
successfully operate accessible MDE is to provide staff training on the 
use of MDE.
     Issue 18: The Department seeks public comment on this 
proposal, as well as any specific information on:
    [cir] The effectiveness of programs used by public entities in the 
past to ensure that their staff is qualified;
    [cir] Any information on the costs associated with such programs; 
and
    [cir] Whether there are any barriers to complying with this 
proposed requirement, and if so, how they may be addressed.

IV. Regulatory Process Matters

    The Department has examined the likely economic and other effects 
of this proposed rule addressing the accessibility of MDE under 
applicable Executive Orders, Federal administrative statutes (e.g., the 
Regulatory Flexibility Act, Paperwork Reduction Act, and Unfunded 
Mandates Reform Act) and other regulatory guidance.\75\
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    \75\ See E.O. 13563, 76 FR 3821 (Jan. 21, 2011); E.O. 13272, 67 
FR 53461 (Aug. 13, 2002); E.O. 13132, 64 FR 43255 (Aug. 4, 1999); 
E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by E.O. 14094, 
88 FR 21879 (Apr. 6, 2023); Regulatory Flexibility Act of 1980 
(RFA), as amended by the Small Business Regulatory Enforcement 
Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.,; Paperwork 
Reduction Act (PRA), 44 U.S.C. 3501 et seq.; Unfunded Mandates 
Reform Act of 1995, 2 U.S.C. 1501 et seq.; OMB Circular A-4 (Sept. 
17, 2003).
---------------------------------------------------------------------------

    As discussed previously, the purpose of this proposed regulation is 
to revise the regulations implementing title II of the ADA to establish 
specific requirements, including the adoption of specific technical 
standards, for making accessible the services, programs, and activities 
offered by State and local governments to the public through their 
medical diagnostic equipment.
    The Department has carefully crafted this proposed regulation to 
apply the protections of title II of the ADA in the most economically 
efficient manner possible. The Office of Management and Budget (OMB), 
Office of Information and Regulatory Affairs, has determined that this 
regulatory action is significant. As such, the Department has 
undertaken a Preliminary Regulatory Impact Analysis (PRIA) pursuant to 
Executive Order 12866, as amended by Executive Order 14094. The 
Department has undertaken an initial Regulatory Flexibility Analysis as 
specified in Sec.  603(a) of the Regulatory Flexibility Act (RFA). The 
results of both of these analyses are set forth below. Lastly, the 
Department does not believe that this proposed regulation will have any 
impact--significant or otherwise--relative to the Paperwork Reduction 
Act, the Unfunded Mandates Reform Act, or the federalism principles 
outlined in Executive Order 13132.

A. Preliminary Regulatory Impact Analysis Summary

    The Department has prepared a PRIA for this rulemaking. This 
summary of the PRIA provides an overview of the Department's initial 
economic analysis. The full PRIA will be made available at https://www.ada.gov/assets/pdfs/mde-pria.pdf.
    The Department estimates that this title II ADA proposed regulation 
would affect 6,905 public entities.\76\ The Department quantifies 
incremental costs that affected entities may incur in (1) purchasing or 
leasing accessible MDE and (2) ensuring that qualified staff operate 
MDE. The Department also quantifies incremental benefits that people 
with mobility disabilities may enjoy due to higher shares of accessible 
MDE, which yield improved health outcomes. In addition, the Department 
discusses other benefits flowing from the proposed rule that cannot be 
quantified due to lack of data or other methodological reasons.
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    \76\ The estimate of 6,905 public entities comes from the 
Department of Health and Human Services and the Centers for Medicare 
& Medicaid Services, based on information in the U.S. Census 
Bureau's 2019 SUSB Annual Data Table by Establishment Industry, U.S. 
& states, 6-digit NAICS. See Table 2 of the PRIA for more 
information.
---------------------------------------------------------------------------

    Table 1 below summarizes findings of the economic impact analysis 
of the likely incremental monetized costs and benefits of the proposed 
rule, on an annualized basis. All monetized costs and benefits are 
estimated for a 10-year period using a discount rate of 3 or 7 percent.

   Table 1--Annualized Value of Monetized Costs and Benefits Under the
           Proposed Rule Over a 10-Year Period in 2022 Dollars
                             [Millions] \77\
------------------------------------------------------------------------
                                                  Discount     Discount
                                                  rate (3      rate (7
                                                  percent)     percent)
------------------------------------------------------------------------
Monetized Incremental Costs...................        $38.5        $38.7
Monetized Incremental Benefits................          7.7          4.8
------------------------------------------------------------------------

    In addition to these monetized benefit estimates, the PRIA 
discusses potential enormous unquantified benefits under the proposed 
rule. The Department expects that the proposed rule will result in a 
myriad of benefits for individuals with mobility disabilities flowing 
from greater access to health care and a reduction in discriminatory 
actions, such as the successful drug dosing for persons with 
disabilities who will now be able to be weighed and given proper drug 
regimens due to accessible weight scales, and the removal of multiple 
causes of loss of self-esteem, frustration, and embarrassment.
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    \77\ In addition to these specific point estimates, the 
Department in the PRIA reports a full range of cost estimates of 
$18.6 million to $68.6 million at a 3 percent discount rate, and a 
full range of cost estimates of $18.7 million to $68.8 million at a 
7 percent discount rate. The PRIA reports a full range of benefit 
estimates of $5.1 million to $10.2 million at a 3 percent discount 
rate, and a full range of benefit estimates of $3.2 million to $6.4 
million at a 7 percent discount rate.
---------------------------------------------------------------------------

    As further discussed in the PRIA, there are likely no public 
entities in the healthcare sector that do not receive some form of 
Federal financial assistance. Therefore, all or virtually all entities 
that are subject to title II of the ADA are also subject to section 504 
of the Rehabilitation Act. Further, as also noted in the PRIA, title II 
and section 504 impose parallel requirements, and courts have 
interpreted them to be consistent. Maintaining that consistency, this 
rule under title II

[[Page 2193]]

imposes virtually the same obligations on public entities as HHS's rule 
imposes under section 504.
    If we take as an alternative baseline the prior adoption of HHS's 
section 504 rule, assuming it is finalized, public entities will incur 
no additional costs to comply with title II as to accessible MDE. 
Entities that comply with the section 504 rule as to MDE will 
necessarily comply with the title II rule as well.
    Under this alternative baseline, it also follows that the title II 
rule would engender no affirmative benefits with regard to accessible 
MDE. However, the title II rule could potentially avert significant 
administrative or transaction costs. Absent the proposed rule setting 
technical standards and scoping requirements for accessible MDE under 
title II of the ADA, courts might interpret title II to impose 
obligations on public entities that differ in some respects from those 
under section 504. Such differences would result in confusion, 
uncertainty, duplication, litigation, and increased compliance costs 
for regulated entities. One advantage of adopting the title II rule is 
thus avoidance of these pitfalls.
    The PRIA includes both quantitative and qualitative discussions of 
regulatory alternatives directed toward the same goals while imposing 
lower costs. The PRIA concludes that the proposed rule maximizes net 
benefits to society while also achieving the regulatory goals.
    The Department has examined the impact of the proposed rule on 
small entities as required by the RFA. For the purpose of this 
analysis, impacted small entities are independent State and local 
governmental units in the United States that serve a population less 
than 50,000.\78\ Based on this definition, the Department estimates, in 
the PRIA at Table 13, a total of 38,514 small governmental entities, of 
which less than 7 percent have public entities that would be required 
to purchase accessible MDE. The PRIA estimates the annualized costs of 
the proposed rule at no more than 1 percent of the annual revenues of 
small government entities. The Department thus certifies that the 
proposed rule will not have a significant economic impact on a 
substantial number of small entities. The PRIA contains further data 
and analysis under the RFA.
---------------------------------------------------------------------------

    \78\ 5 U.S.C. 601(5) and Small Business Admin., A Guide for 
Government Agencies: How to Comply with the Regulatory Flexibility 
Act (Aug. 2017), https://advocacy.sba.gov/wp-content/uploads/2019/06/How-to-Comply-with-the-RFA.pdf [https://perma.cc/6BFB-2QWH].
---------------------------------------------------------------------------

B. Executive Order 13132: Federalism

    Executive Order 13132 requires executive branch agencies to 
consider whether a proposed rule will have federalism implications. 
That is, the rulemaking agency must determine whether the rule is 
likely to have substantial direct effects on State and local 
governments, the relationship between the Federal government and the 
States and localities, or the distribution of power and 
responsibilities among the different levels of government. If an agency 
believes that a proposed rule is likely to have federalism 
implications, it must consult with State and local government officials 
about how to minimize or eliminate the effects.
    Title II of the ADA covers State and local government services, 
programs, and activities, and, therefore, has some federalism 
implications. State and local governments have been subject to the ADA 
since 1991, and the majority of them have also been required to comply 
with the requirements of section 504. Hence, the ADA and the title II 
regulations are not novel for State and local governments. This 
proposed rule will preempt State laws affecting entities subject to the 
ADA only to the extent that those laws provide less protection for the 
rights of individuals with disabilities. This proposed rule does not 
invalidate or limit the remedies, rights and procedures of any State 
laws that provide greater or equal protection for the rights of 
individuals with disabilities. To minimize any potential conflicts, the 
Department believes it is prudent to consult with public entities about 
the potential federalism implications of the proposed title II 
regulation.
    The Department intends to amend the regulations in a manner that 
meets the objectives of the ADA while also minimizing conflicts between 
State law and Federal interests. The Department is now soliciting 
comments from State and local officials and their representative 
national organizations through this NPRM.
     Issue 19: The Department seeks public comment on the 
potential federalism implications of the proposed rule, including 
whether the proposed rule may have direct effects on State and local 
governments, the relationship between the Federal government and the 
States, or the distribution of power and responsibilities among the 
various levels of government.

C. National Technology Transfer and Advancement Act of 1995

    The National Technology Transfer and Advancement Act of 1995 
(NTTAA) directs that, as a general matter, all Federal agencies and 
departments shall use technical standards that are developed or adopted 
by voluntary consensus standards bodies, which are private, generally 
nonprofit organizations that develop technical standards or 
specifications using well-defined procedures that require openness, 
balanced participation among affected interests and groups, fairness 
and due process, and an opportunity for appeal, as a means to carry out 
policy objectives or activities.\79\ In addition, the NTTAA directs 
agencies to consult with voluntary, private sector, consensus standards 
bodies and requires that agencies participate with such bodies in the 
development of technical standards when such participation is in the 
public interest and is compatible with agency and departmental 
missions, authorities, priorities, and budget resources.\80\
---------------------------------------------------------------------------

    \79\ Public Law 104-113, sec. 12(d)(1) (15 U.S.C. 272 note).
    \80\ Id. sec. 12(d)(2).
---------------------------------------------------------------------------

    The Department is proposing to adopt the Standards for Accessible 
Medical Diagnostic Equipment issued by the Access Board to apply to the 
purchase and lease of MDE by public entities. These MDE Standards were 
adopted by the U.S. Access Board in 2017 after a five-year review 
period that included participation by an Advisory Committee composed of 
representatives from the health care industry, architects, persons with 
disabilities, and organizations representing a variety of interested 
stakeholders. The MDE Standards were developed after extensive notice 
and comment. The development of these standards was required by section 
510 of the Rehabilitation Act of 1973, as amended, and were developed 
with the participation of the Food and Drug Administration. They have 
gained wide recognition in the United States. The Department is unaware 
of any privately developed standards created with the same wide 
participation and open process. As a result, the Department believes 
that it is appropriate to use these MDE Standards for this rule.
     Issue 20: The Department seeks public comment on the 
Standards for Accessible Medical Diagnostic Equipment and whether there 
are any other standards for accessible medical diagnostic equipment 
that the Department should consider.

[[Page 2194]]

D. Plain Language Instructions

    The Department makes every effort to promote clarity and 
transparency in its rulemaking. In any regulation, there is a tension 
between drafting language that is simple and straightforward and 
drafting language that gives full effect to issues of legal 
interpretation. The Department operates a toll-free ADA Information 
Line at (800) 514-0301 (voice); (800) 514-0383 (TTY) that the public is 
welcome to call to get assistance understanding anything in this 
proposed rule. If any commenter has suggestions for how the regulation 
could be written more clearly, please contact Rebecca B. Bond, Chief, 
Disability Rights Section, whose contact information is provided in the 
introductory section of this proposed rule entitled, FOR FURTHER 
INFORMATION CONTACT.

E. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), no person is 
required to respond to a ``collection of information'' unless the 
agency has obtained a control number from OMB.\81\ This proposed rule 
does not contain any collections of information as defined by the PRA.
---------------------------------------------------------------------------

    \81\ 44 U.S.C. 3501 et seq.
---------------------------------------------------------------------------

F. Unfunded Mandates Reform Act

    Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1503(2), excludes from coverage under that Act any proposed or final 
Federal regulation that ``establishes or enforces any statutory rights 
that prohibit discrimination on the basis of race, color, religion, 
sex, national origin, age, handicap, or disability.'' Accordingly, this 
rulemaking is not subject to the provisions of the Unfunded Mandates 
Reform Act.

List of Subjects in 28 CFR Part 35

    Administrative practice and procedure, Buildings and facilities, 
Civil rights, Individuals with disabilities, State and local 
requirements.

V. Proposed Regulatory Text

    By the authority vested in me as Attorney General by law, including 
5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 12131, and 12205a of 
the Americans with Disabilities Act, as amended, and for the reasons 
set forth in Appendix A to 28 CFR part 35, chapter I of title 28 of the 
Code of Federal Regulations is proposed to be amended as follows--

PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND 
LOCAL GOVERNMENT SERVICES

0
1. The authority citation for part 35 continues to read as follows:

    Authority:  5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 
12131, and 12205a.

Subpart A--General

0
2. Amend Sec.  35.104 by adding the following definitions of ``medical 
diagnostic equipment'' and ``Standards for Accessible Medical 
Diagnostic Equipment'' in alphabetical order:


Sec.  35.104   Definitions.

* * * * *
    Medical diagnostic equipment (``MDE'') means equipment used in, or 
in conjunction with, medical settings by health care providers for 
diagnostic purposes. MDE includes, for example, examination tables, 
examination chairs (including chairs used for eye examinations or 
procedures, and dental examinations or procedures), weight scales, 
mammography equipment, x-ray machines, and other radiological equipment 
commonly used for diagnostic purposes by health professionals.
* * * * *
    Standards for Accessible Medical Diagnostic Equipment (``Standards 
for Accessible MDE'') means the standards at 36 CFR part 1195, 
promulgated by the Architectural and Transportation Barriers Compliance 
Board under section 510 of the Rehabilitation Act of 1973, as amended, 
in effect as of the date of promulgation of the final version of this 
rule, found in the Appendix to 36 CFR part 1195.
* * * * *

Subpart I--Accessible Medical Diagnostic Equipment

0
3. Add new subpart I to read as follows:
Subpart I--Accessible Medical Diagnostic Equipment
Sec.
35.210 Requirements for medical diagnostic equipment.
35.211 Newly purchased, leased, or otherwise acquired medical 
diagnostic equipment.
35.212 Existing medical diagnostic equipment.
35.213 Qualified staff.
35.214-35.219 [Reserved]


Sec.  35.210   Requirements for medical diagnostic equipment.

    No qualified individual with a disability shall, on the basis of 
disability, be excluded from participation in or be denied the benefits 
of the health care services, programs, or activities of a public entity 
offered through or with the use of medical diagnostic equipment (MDE), 
or otherwise be subjected to discrimination by any public entity 
because the public entity's MDE is not readily accessible to or usable 
by persons with disabilities.


Sec.  35.211   Newly purchased, leased, or otherwise acquired medical 
diagnostic equipment.

    (a) Requirements for all newly purchased, leased, or otherwise 
acquired medical diagnostic equipment. All MDE that public entities 
purchase, lease, or otherwise acquire more than 60 days after the 
publication of this part in final form shall, subject to the 
requirements and limitations set forth in this section, meet the 
Standards for Accessible MDE, unless and until the public entity 
satisfies the scoping requirements set forth in paragraph (b) of this 
section.
    (b) Scoping requirements.
    (1) General requirement for medical diagnostic equipment. Where a 
service, program, or activity of a public entity, including physicians' 
offices, clinics, emergency rooms, hospitals, outpatient facilities, 
and multi-use facilities, utilizes MDE, at least 10 percent of the 
total number of units, but no fewer than one unit, of each type of 
equipment in use must meet the Standards for Accessible MDE.
    (2) Facilities that specialize in treating conditions that affect 
mobility. In rehabilitation facilities that specialize in treating 
conditions that affect mobility, outpatient physical therapy 
facilities, and other services, programs, or activities that specialize 
in treating conditions that affect mobility, at least 20 percent, but 
no fewer than one unit, of each type of equipment in use must meet the 
Standards for Accessible MDE.
    (3) Facilities with multiple departments. In any facility or 
program with multiple departments, clinics, or specialties, where a 
service, program, or activity uses MDE, the facility shall disperse the 
accessible MDE required by paragraphs (b)(1) and (2) of this section in 
a manner that is proportionate by department, clinic, or specialty 
using MDE.
    (c) Requirements for examination tables and weight scales. Within 
two years after the publication of this part in final form, public 
entities shall, subject to the requirements and limitations set forth 
in this section, purchase, lease, or otherwise acquire the following, 
unless the entity already has them in place:
    (1) At least one examination table that meets the Standards for 
Accessible

[[Page 2195]]

MDE, if the public entity uses at least one examination table; and
    (2) At least one weight scale that meets the Standards for 
Accessible MDE, if the public entity uses at least one weight scale.
    (d) Equivalent facilitation. Nothing in these requirements prevents 
the use of designs, products, or technologies as alternatives to those 
prescribed by the Standards for Accessible MDE, provided they result in 
substantially equivalent or greater accessibility and usability of the 
health care service, program, or activity. The responsibility for 
demonstrating equivalent facilitation rests with the public entity.
    (e) Fundamental alteration and undue burdens. This section does not 
require a public entity to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a service, 
program, or activity, or in undue financial and administrative burdens. 
In those circumstances where personnel of the public entity believe 
that the proposed action would fundamentally alter the service, 
program, or activity or would result in undue financial and 
administrative burdens, a public entity has the burden of proving that 
compliance with paragraph (a) or (c) of this section would result in 
such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the head of a public 
entity or their designee after considering all resources available for 
use in the funding and operation of the service, program, or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action would result in such an 
alteration or such burdens, a public entity shall take any other action 
that would not result in such an alteration or such burdens but would 
nevertheless ensure that individuals with disabilities receive the 
benefits or services provided by the public entity.
    (f) Diagnostically required structural or operational 
characteristics. A public entity meets its burden of proving that 
compliance with paragraph (a) or (c) of this section would result in a 
fundamental alteration under paragraph (e) if it demonstrates that 
compliance with paragraph (a) or (c) of this section would alter 
diagnostically required structural or operational characteristics of 
the equipment and prevent the use of the equipment for its intended 
diagnostic purpose. This paragraph does not excuse compliance with 
other technical requirements where compliance with those requirements 
does not prevent the use of the equipment for its diagnostic purpose.


Sec.  35.212   Existing medical diagnostic equipment.

    (a) Accessibility. A public entity shall operate each service, 
program, or activity offered through or with the use of MDE so that the 
service, program, or activity, in its entirety, is readily accessible 
to and usable by individuals with disabilities. This paragraph does 
not--
    (1) Necessarily require a public entity to make each of its 
existing pieces of MDE accessible to and usable by individuals with 
disabilities; or
    (2) Require a public entity to take any action that it can 
demonstrate would result in a fundamental alteration in the nature of a 
service, program, or activity, or in undue financial and administrative 
burdens. In those circumstances where personnel of the public entity 
believe that the proposed action would fundamentally alter the service, 
program, or activity or would result in undue financial and 
administrative burdens, a public entity has the burden of proving that 
compliance with Sec.  35.212(a) of this part would result in such 
alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the head of a public entity 
or their designee after considering all resources available for use in 
the funding and operation of the service, program, or activity, and 
must be accompanied by a written statement of the reasons for reaching 
that conclusion. If an action would result in such an alteration or 
such burdens, a public entity shall take any other action that would 
not result in such an alteration or such burdens but would nevertheless 
ensure that individuals with disabilities receive the benefits or 
services, programs, and activities provided by the public entity.
    (3) A public entity meets its burden of proving that compliance 
with Sec.  35.211(a) or (c) of this part would result in a fundamental 
alteration under paragraph (a)(2) if it demonstrates that compliance 
with Sec.  35.211(a) or (c) of this part would alter diagnostically 
required structural or operational characteristics of the equipment and 
prevent the use of the equipment for its intended diagnostic purpose.
    (b) Methods. A public entity may comply with the requirements of 
this section through such means as reassignment of services to 
alternate accessible locations; home visits; delivery of services at 
alternate accessible sites; purchase, lease, or other acquisition of 
accessible MDE; or any other methods that result in making its 
services, programs, or activities readily accessible to and usable by 
individuals with disabilities. A public entity is not required to 
purchase, lease, or otherwise acquire accessible MDE where other 
methods are effective in achieving compliance with this section. In 
choosing among available methods for meeting the requirements of this 
section, a public entity shall give priority to those methods that 
offer services, programs, and activities to qualified individuals with 
disabilities in the most integrated setting appropriate.


Sec.  35.213   Qualified staff.

    Public entities must ensure their staff are able to successfully 
operate accessible MDE, assist with transfers and positioning of 
individuals with disabilities, and carry out the program access 
obligation regarding existing MDE.


Sec. Sec.  35.214-35.219   [Reserved]

    Dated: January 8, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-00553 Filed 1-11-24; 8:45 am]
BILLING CODE P