By Matt Scully

The Department of Justice recently published a notice of proposed rulemaking applicable to healthcare entities covered under Title II of the Americans with Disabilities Act that relates to accessibility to medical diagnostic equipment for disabled individuals. This article discusses those proposed revisions and next steps for covered entities.

Background:

Title II of the Americans with Disabilities Act (“ADA”) mandates that state and local government services, programs and activities be accessible to individuals with disabilities. This includes, but is not limited to, state and local government entities that offer healthcare support, such as public hospitals and entities that received federal funding from The U.S. Department of Health and Human Services (“HHS”). Under Title II, impacted entities must provide reasonable modifications for disabled individuals 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. Failure to comply with Title II can result in significant fines ($75,000 for a single violation), individual legal action, and even loss of federal funding. Further, noncompliance can lead to audits, department oversight and reporting requirements.

Proposed New Rule:

On January 12, 2024, the Department of Justice (“Department”) proposed revisions to the regulations implementing Title II relating to technical standards and scoping requirements for services and programs related to Medical Diagnostic Equipment (“MDE”). MDE is equipment used in, or in conjunction with, medical settings by healthcare providers for diagnostic purposes. It includes, but is not limited to, 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. The standards cover independent entry, use of, and exit from MDE by disabled individuals.

The Department explained in a press release that the proposed regulations help address shortcomings in healthcare entities providing accessible equipment, diagnostic and medical care to individuals with disabilities. The proposed regulations provide the example of patients with disabilities having to forgo Pap smears because they could not safely transfer from their wheelchairs to a fixed-height exam table, and inaccessible mammography machines contributing to low breast cancer screening rates for patients with disabilities. The Department estimates that this title II ADA proposed regulation would affect 6,905 public entities.

Key Proposed Changes:

The proposed rule contains a number of important changes for covered entities:

Adoption of the standards for accessible MDE issued by the Architectural and Transportation Barriers Compliance Board.

Proposed rule requires 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.

Proposed rule does not require entities to make all existing MDE accessible, but requires that programs when viewed in their entirety, be readily accessible to and usable by individuals with disabilities, taken into consideration if retrofitting would create an unduly financial and administrative burden or constitute a fundamental alteration to the MDE. A fundamental alteration means the change would alter diagnostically-required structural or operational characteristics of the equipment and prevent the use of the equipment for its intended diagnostic purpose.

An entity may comply with MDE standards requirements through such means as reassignment of services to alternate accessible locations; home visits; delivery of services at alternate accessible sites; or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. In choosing among available methods for meeting the requirements, 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.

The proposed regulation requires that covered entities ensure staff is 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.

Covered entities should also ensure staff understand the entities’ obligations with regard to MDE and are properly trained to communicate and coordinate with disabled individuals with regard to MDE.

Conclusion

Comments on the proposed regulations closed February 12, 2024, and no final rule has been published to date. All entities that will be impacted by this change should start preparing for its impact. Compliance obligations can be burdensome, and noncompliance can lead to substantial penalties.

Matt Scully is a Partner at Burr & Forman LLP practicing in the firm’s Labor and Employment Group. Matt may be reached at (205) 458-5321 or mscully@burr.com