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

DEPARTMENT OF JUSTICE <CFR>28 CFR Part 35</CFR> <DEPDOC>[Docket Number CRT 143 AG Order No. 5852-2024]</DEPDOC> <RIN>RIN 1190-AA78</RIN> <SUBJECT>Nondiscrimination on the Basis of Disability; Accessibility of Medical Diagnostic Equipment of State and Local Government Entities</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Civil Rights Division, Department of Justice. <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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”). </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> 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. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by RIN 1190-AA78, by any one of the following methods: • <E T="03">Federal eRulemaking website: https://www.regulations.gov</E> . Follow the website's instructions for submitting comments. • <E T="03">Overnight, courier, or hand delivery:</E> Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 150 M St. NE, 9th Floor, Washington, DC 20002. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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 <E T="03">https://www.ada.gov</E> . <HD SOURCE="HD1">Electronic Submission of Comments and Posting of Public Comments</HD> 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 <E T="03">https://www.regulations.gov</E> . 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 <E T="03">https://www.regulations.gov</E> 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 <E T="03">https://www.regulations.gov</E> . To inspect the agency's public docket file in person, you must make an appointment with the agency. Please see the <E T="02">FOR FURTHER INFORMATION CONTACT</E> paragraph above for agency contact information. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION</HD>   <HD SOURCE="HD1">I. Executive Summary</HD> 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.”  <SU>1</SU> <FTREF/> For instance, patients with disabilities have had to forgo Pap smears because they could not safely transfer from their wheelchairs to a fixed-height exam table. <SU>2</SU> <FTREF/> Similarly, inaccessible mammography machines have contributed to low breast cancer screening rates for patients with disabilities. <SU>3</SU> <FTREF/> <FTNT> <SU>1</SU>  Nat'l Council on Disability, <E T="03">Enforceable Accessible Medical Equipment Standards: A Necessary Means to Address the Health Care Needs of People with Mobility Disabilities</E> 7 (May 20, 2021), <E T="03">https://ncd.gov/sites/default/files/Documents/NCD_Medical_Equipment_Report_508.pdf</E> (“NCD Report”) [ <E T="03">https://perma.cc/6W4U-TVEX</E> ]. </FTNT> <FTNT> <SU>2</SU>   <E T="03">See id.</E> at 17. </FTNT> <FTNT> <SU>3</SU>   <E T="03">See id.</E> at 18. </FTNT> 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. <SU>4</SU> <FTREF/> 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. <SU>5</SU> <FTREF/> Compliance with the standards is mandatory only if an enforcing authority adopts the standards as mandatory for entities subject to its jurisdiction. <SU>6</SU> <FTREF/> In this NPRM, the Department proposes to adopt the MDE Standards under title II of the ADA. <FTNT> <SU>4</SU>  29 U.S.C. 794f(a). </FTNT> <FTNT> <SU>5</SU>   <E T="03">See id.</E> at 794f. </FTNT> <FTNT> <SU>6</SU>   <E T="03">See</E> 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). </FTNT> <HD SOURCE="HD1">II. Background</HD> <HD SOURCE="HD2">A. Statutory and Rulemaking Overview</HD> 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. <SU>7</SU> <FTREF/> The ADA also authorizes the Attorney General to promulgate regulations to carry out the provisions of title III, which focuses on public accommodations. <SU>8</SU> <FTREF/> 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. <SU>9</SU> <FTREF/> <FTNT> <SU>7</SU>  42 U.S.C. 12134. </FTNT> <FTNT> <SU>8</SU>   <E T="03">Id.</E> 12186(b). </FTNT> <FTNT> <SU>9</SU>  56 FR 35694 (July 26, 1991); 56 FR 35544 (July 26, 1991). </FTNT> 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”). <SU>10</SU> <FTREF/> 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. <SU>11</SU> <FTREF/> The Department subsequently issued an NPRM in 2008. <SU>12</SU> <FTREF/> Although public comments in response to the AN ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 102k characters. 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