[Federal Register Volume 75, Number 142 (Monday, July 26, 2010)]
[Proposed Rules]
[Pages 43452-43460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-18331]
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DEPARTMENT OF JUSTICE
28 CFR Parts 35 and 36
[CRT Docket No. 113]
RIN 1190-AA64
Nondiscrimination on the Basis of Disability by State and Local
Governments and Places of Public Accommodation; Equipment and Furniture
AGENCY: Department of Justice, Civil Rights Division.
ACTION: Advance Notice of Proposed Rulemaking.
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SUMMARY: The Department of Justice (Department) is considering possible
changes to requirements under titles II and III of the Americans with
Disabilities Act (ADA) to ensure that equipment and furniture used in
programs and services provided by public entities and public
accommodations are accessible to individuals with disabilities. In this
Advance Notice of Proposed Rulemaking (ANPRM), the Department is
seeking public input on issues relating to possible revisions of ADA
regulations to ensure the accessibility of equipment and furniture in
such programs and services and also is seeking background information
for the regulatory assessment that the Department may need to prepare
if it revises its regulations.
DATES: The Department invites written comments from members of the
public. Written comments must be postmarked and electronic comments
must be submitted on or before January 24, 2011. Commenters should be
aware that the electronic Federal Docket Management System will not
accept comments after Midnight Eastern Time on the last day of the
comment period.
ADDRESSES: You may submit comments, identified by RIN 1190-AA64 (or
Docket ID No. 113), by any one of the following methods:
Federal eRulemaking Web site: www.regulations.gov. Follow
the Web site instructions for submitting comments.
Regular U.S. mail: Disability Rights Section, Civil Rights
Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-
0885.
Overnight, courier, or hand delivery: Disability Rights
Section, Civil Rights Division, U.S. Department of Justice, 1425 New
York Avenue, NW., Suite 4039, Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT: Sarah DeCosse, Attorney Advisor,
Disability Rights Section, Civil Rights
[[Page 43453]]
Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY).
This is not a toll-free number. Information may also be obtained from
the Department's toll-free ADA Information Line at (800) 514-0301
(voice) or (800) 514-0383 (TTY).
You may obtain copies of this ANPRM in large print or Braille or on
audiotape or computer disk by calling the ADA Information Line at (800)
514-0301 (voice) and (800) 514-0383 (TTY). This ANPRM is also available
on the ADA Home Page at http://www.ada.gov.
SUPPLEMENTARY INFORMATION:
I. Electronic Submission of Comments and Posting of Public Comments
You may submit electronic comments to: http://www.regulations.gov.
When submitting comments electronically, you must include CRT Docket
No. 113 in the subject box, and you must include your full name and
address. Electronic files should avoid the use of special characters or
any form of encryption and should be free of any defects or viruses.
Please note that all comments received are considered part of the
public record and made available for public inspection online at http://www.regulations.gov. Submission postings will include any personal
identifying information (such as your name, address, etc.) included in
the text of your comment. If you include personal identifying
information (such as your name, address, etc.) in the text your
comment, but do not want it to be posted online, you must include the
phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of
your comment. You must also include all the personal identifying
information you want redacted along with this phrase. Similarly, if you
submit confidential business information as part of your comment but do
not want it posted online, you must include the phrase ``CONFIDENTIAL
BUSINESS INFORMATION'' in the first paragraph of your comment. You must
also prominently identify confidential business information to be
redacted within the comment. If a comment has so much confidential
business information that it cannot be effectively redacted, all or
part of that comment may not be posted on: http://www.regulations.gov.
Comments on this ANPRM will also be made available for public
viewing by appointment at the Disability Rights Section, located at
1425 New York Avenue, NW., Suite 4039, Washington, DC 20005, during
normal business hours. To arrange an appointment to review the
comments, please contact the ADA Information Line at (800) 514-0301
(voice) or (800) 514-0383 (TTY).
The reason that the Civil Rights Division is requesting electronic
comments before midnight Eastern Time on the day the comment period
closes is because the inter-agency Regulations.gov/Federal Docket
Management System (FDMS) which receives electronic comments terminates
the public's ability to submit comments at midnight on the day the
comment period closes. Commenters in time zones other than Eastern may
want to take this fact into account so that their electronic comments
can be received. The constraints imposed by the Regulations.gov/FDMS
system do not apply to U.S. postal comments, which will be considered
as timely filed if they are postmarked before midnight on the day the
comment period closes.
II. Public Hearing
The Department will hold at least one public hearing to solicit
comments on the issues presented in this notice. The Department plans
to hold the public hearing during the 180-day public comment period.
The date, time, and location of the public hearing will be announced to
the public in the Federal Register and on the Department's ADA Home
Page: http://www.ada.gov.
III. Proposed Action/Summary
The Department is seeking information to assist it in determining
if it should propose specific accessibility requirements for non-fixed
equipment and furniture, including medical equipment, exercise
equipment, accessible golf cars, accessible beds, and electronic and
information technology, by entities subject to title II or title III of
the ADA.
IV. Background
A. Statutory and Rulemaking History
On July 26, 1990, President George H.W. Bush signed into law the
ADA, a comprehensive civil rights law prohibiting discrimination on the
basis of disability. The ADA broadly protects the rights of individuals
with disabilities in employment, access to State and local government
services, places of public accommodation, transportation, and other
important areas of American life. The ADA also requires newly designed
and constructed or altered State and local government facilities,
public accommodations, and commercial facilities to be readily
accessible to and usable by individuals with disabilities. 42 U.S.C.
12101 et seq. Section 204 (a) of title II and section 306(b) of title
III direct the Attorney General to promulgate regulations to carry out
the provisions of titles II and III, other than certain provisions
dealing specifically with transportation. 42 U.S.C. 12134; 42 U.S.C.
12186(b).
Title II applies to State and local government entities, and, in
Subtitle A, protects qualified individuals with disabilities from
discrimination on the basis of disability in services, programs, and
activities provided by State and local government entities. Title II
extends the prohibition on discrimination established by section 504 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section
504), to all activities of State and local governments regardless of
whether these entities receive Federal financial assistance. 42 U.S.C.
12131-65.
Title III prohibits discrimination on the basis of disability in
the activities of places of public accommodation (private entities
whose operations affect commerce and that fall into one of twelve
categories listed in the ADA, such as restaurants, movie theaters,
schools, day care facilities, recreational facilities, and doctors'
offices) and requires newly constructed or altered places of public
accommodation--as well as commercial facilities (privately owned,
nonresidential facilities such as factories, warehouses, or office
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.
On July 26, 1991, the Department issued its final rules
implementing title II and title III, which are codified at 28 CFR part
35 (title II) and part 36 (title III). Appendix A of the title III
regulation, at 28 CFR part 36, contains the ADA Standards for
Accessible Design (1991 Standards). These Standards resulted from the
Department's incorporation into the rule of the 1991 ADA Accessibility
Guidelines (1991 ADAAG) promulgated by the U.S. Architectural and
Transportation Barriers Compliance Board (Access Board). The Department
is a member of the Access Board and participates in its development of
accessibility guidelines. On September 30, 2004, the Department
published an advance notice of proposed rulemaking (2004 ANPRM) to
begin the process of updating the 1991 regulations and to adopt revised
ADA Standards based on the relevant parts of the Access Board's 2004
ADA/Architectural Barriers Act (ABA) Accessibility Guidelines. 69 FR
44084. The Department issued Notices of Proposed Rulemaking (NPRMs) to
revise the title II and title III regulations and these incorporated
the 2004 ADA/ABA Accessibility Guidelines into the revised ADA
Standards. 73 FR 34466
[[Page 43454]]
(June 17, 2008). The NPRMs addressed the issues raised in the comments
to the ANPRM and sought additional comment.
The 2004 ANPRM asked for public comment on a range of issues not
specifically addressed in the ADA regulations, including coverage of
movable or portable equipment and furniture. 59 FR 58768. Although the
Department received public comments in response to the ANPRM supporting
its regulation of equipment and furniture, when the Department issued
its 2008 NPRM, it announced its decision not to address equipment at
that time. 73 FR 34466, 34474-75 (June 17, 2008). Instead, the
Department continued its approach of requiring accessible equipment and
furniture on a case-by-case basis. Under the regulatory provisions
governing reasonable modifications of policies, practices, or
procedures, program accessibility, effective communication, and barrier
removal, the Department has continued its long-standing practice of
requiring accessible equipment and furniture.
The Department received numerous comments urging it to issue
equipment and furniture regulations. Based on these comments and for
the reasons detailed below, the Department has decided to begin the
process of soliciting comments and suggestions with respect to what an
NPRM regarding equipment and furniture should contain.
B. Legal Foundation for Equipment and Furniture Coverage
The ADA prohibits discrimination on the basis of disability in all
services, programs, and activities offered by public entities and in
the operation of privately owned places of public accommodation. The
provision of accessible equipment and furniture has always been
required by the ADA and the Department's implementing regulations under
the program accessibility, reasonable modification, auxiliary aids and
services, and barrier removal requirements. Each of the types of
equipment and furniture discussed in this ANPRM is subject to coverage
under both title II and title III of the ADA.
Title II of the ADA applies to services, programs, or activities of
public entities within the meaning of 42 U.S.C. 12133(1)(A). The
program accessibility requirement of Title II mandates public entities
to operate each service, program, or activity so that, when viewed in
its entirety, the service, program, or activity is readily accessible
to and usable by individuals with disabilities, subject to a defense of
fundamental alteration or undue burden. 28 CFR 35.150(a). Section
35.150(b) specifies that such entities may meet their obligation to
make each program accessible to individuals with disabilities through
the ``redesign of equipment.'' If an entity invokes a fundamental
alteration defense, the entity nonetheless must take other steps that
would not fundamentally alter the nature of the services provided. For
example, the provision of a height adjustable examination table in a
doctor's office may meet the requirement for program accessibility.
However, if the provision of an adjustable examination table in a
doctor's office would fundamentally alter the nature of the services
provided, based on a fact specific inquiry, then the use instead of a
nonadjustable examining table of suitable height, might afford an
individual with a disability an equal opportunity to participate in the
services, programs, and activities offered by that entity.
Title II entities also must ensure that communications with
individuals with disabilities are as effective as communications with
others and provide appropriate auxiliary aids and services where
necessary to ensure that individuals with disabilities have an equal
opportunity to participate in and benefit from a service, program, or
activity. 28 CFR 35.160. These auxiliary aids include the
``[a]cquisition or modification of equipment or devices.'' 28 CFR
35.104. In addition, equipment and personal property, such as
furniture, is specifically included in the definition of ``facility''
in title II. 28 CFR 35.104. There is an identical definition of
``facility'' in the regulation implementing title III. 28 CFR 36.104.
Title III of the ADA applies to persons who own, lease or lease to,
or operate places of public accommodation, such as doctors' offices,
hospitals, nursing homes, hotels and motels, shopping centers,
specified public transportation terminals, recreational facilities,
such as health clubs or golf courses, restaurants, movie theaters,
schools, and day care facilities. 42 U.S.C. 12182(a). Public
accommodations discriminate against individuals with disabilities when
they enact discriminatory policies or practices, or fail to remove
barriers or make requested reasonable modifications in order to
accommodate an individual's disability, unless barrier removal is not
readily achievable or a modification would fundamentally alter the
nature of the business. See 28 CFR 36.304 (barrier removal) and
36.302(a) (reasonable modification). If barrier removal is not readily
achievable, then an alternative means must be provided if that
alternative means is readily achievable. For example, a standard-
height, nonadjustable examining table constitutes an architectural
barrier to persons with certain mobility impairments. Therefore, an
adjustable table must be provided if it is readily achievable. If it is
not readily achievable to obtain such a table, then an alternative,
such as a nonadjustable lower height table, must be provided if that
alternative is readily achievable.
Public accommodations also must ensure that no individuals with
disabilities are excluded, denied services, segregated or otherwise
treated differently from other individuals because of the absence of
auxiliary aids and services, unless taking such steps would
fundamentally alter the nature of the goods, services, facilities,
privileges, advantages, or accommodations being offered or result in an
undue burden. 28 CFR 36.303(a). The preamble to the Department's 1991
regulation clarified the manner in which equipment and furniture are
covered by the title III regulation. 28 CFR part 36, app. B, at 733
(Proposed Section 36.309 Purchase of Furniture and Equipment). Some
types of equipment and furniture are covered specifically by the
Department's adoption of the 1991 ADAAG as the ADA Standards for
Accessible Design. Equipment and furniture may also be covered by other
regulatory provisions including reasonable modifications, 28 CFR
36.302; auxiliary aids, 28 CFR 36.303; and barrier removal, 28 CFR
36.304.
While some types of fixed equipment and furniture are explicitly
covered by the 1991 Standards, there are no specific provisions in the
regulations governing the accessibility of equipment and furniture that
are not fixed. See 28 CFR pt. 36, app. A. (Automatic Teller Machines
(ATMs) and Fixed or Built-in Seating or Tables). A fixed item is
something that is built into the facility, for example, through
plumbing. In contrast, an item that is not fixed is not attached to the
facility. In order to ensure that not only fixed equipment and
furniture be accessible, the Department seeks to provide specific
regulatory guidance for the accessibility of equipment and furniture
that are not fixed. Whether a type of equipment or furniture is fixed
or not is generally not relevant from the perspective of the user. For
example, an ATM or vending machine that is fixed is used for the same
purpose and in the same manner as an equivalent ATM or vending machine
that is not fixed. To the extent that ADA standards apply requirements
for fixed equipment and furniture, the Department will look to those
standards
[[Page 43455]]
for guidance on accessibility standards for equipment and furniture
that are not fixed.
With regard to making electronic or information technology
equipment and furniture accessible to individuals with disabilities,
including individuals who are blind or have low vision, Section 508 of
the Rehabilitation Act of 1973, which applies to federal agencies,
provides guidance for the public on how to make electronic and
information technology accessible. See, e.g., 29 U.S.C. 794d.
The Department's experience in the twenty years since the ADA was
enacted has given it a better understanding of the barriers posed by
inaccessible equipment and furniture and the solutions provided by
accessible equipment and furniture. Accessible equipment and furniture
is often critical to an entity's ability to provide a person with a
disability equal access to its services. Changes in technology have
resulted in the development and improved availability of accessible
equipment and furniture that benefit individuals with disabilities. Use
of the Internet, video interpreting services, screen readers, and text
messaging, are just a few examples of technologies that were rare or
nonexistent twenty years ago, but are now widely used by individuals
with disabilities. New technologies have led to accessible equipment
and furniture ranging from accessible medical exam tables for
individuals who use wheelchairs to ``talking'' ATMs and interactive
kiosks, which can be used independently and while preserving privacy
through the use of headphones by individuals who are blind or have low
vision. Consequently, it is easier now to specify appropriate
accessibility standards for such equipment and furniture, as the Access
Board has done for several types of fixed equipment and furniture,
including ATMs, washing machines, dryers, tables, benches, and vending
machines. See sections 903, 902, 707, 611, and 228 of the ADA/ABA
Accessibility Guidelines.
For all of these reasons, the Department believes that providing
specific requirements for accessible equipment and furniture is
consistent with the mandates of the ADA and necessary and appropriate
at this time.
V. Request for Public Comments
The Department seeks input from the public and from those in the
disability community, representatives of Federal, State, or local
governments, public safety organizations, and industry professionals.
The Department invites comments on types and features of equipment and
furniture that will effectively provide equal opportunity to access all
services and programs covered by titles II and III of the ADA, on
scoping (which refers to the amount of equipment or furniture that
should be provided in different types of facilities in order to meet
the needs of individuals with disabilities needing access to those
facilities), on events or time frames that should trigger the
replacement or modification of inaccessible equipment or furniture with
accessible equipment or furniture, and on the costs and benefits of
accessible equipment and furniture. In your responses to the questions
presented below, please refer to each question by number. Please
provide any additional information that you believe will be helpful.
A. Medical Equipment and Furniture
Without accessible medical examination tables, dental chairs,
radiological diagnostic equipment, scales, and rehabilitation
equipment, individuals with disabilities do not have an equal
opportunity to receive medical care. Individuals with disabilities may
be less likely to get routine preventative medical care than people
without disabilities because of barriers to accessing that care. The
Department has entered into settlement agreements with several medical
care providers that have required the medical care provider to purchase
accessible equipment and furniture for its facilities, including at
least one accessible examination table in each medical department and
additional accessible examination tables, radiologic equipment, scales,
beds, and lifting devices, as needed. These settlement agreements are
available to the public at http://www.ada.gov. The Department has also
issued technical assistance on this issue. See Access to Medical Care
for Individuals with Mobility Disabilities, on May 17, 2010.
The health care reform law, the Patient Protection and Affordable
Care Act, added a new Section 510 to the Rehabilitation Act of 1973.
Section 510 directs the Access Board to promulgate regulatory standards
setting forth the minimum technical criteria for medical diagnostic
equipment used in (or in conjunction with) physician's offices,
clinics, emergency rooms, hospitals, and other medical settings. The
standards shall ensure that such equipment is accessible to, and usable
by, individuals with accessibility needs, and shall allow independent
entry to, use of, and exit from the equipment or furniture by such
individuals to the maximum extent possible. The Access Board has
announced that it will draft new design standards for medical
diagnostic equipment to satisfy this requirement. As an Access Board
member, the Department will work closely with the Board in the
development of these design standards. The Department will not issue a
final rule on medical equipment until the Access Board has completed
its medical diagnostic equipment standards. When the standards are
completed, the Department will have the option to adopt them for ADA
implementation and, if it does so, will, at that time, develop specific
scoping requirements to establish the required number of accessible
diagnostic elements for specific facility types. In addition, the
Department may propose regulations to ensure the accessibility of
medical equipment that is used for treatment, rehabilitative or other
purposes.
i. Medical Examination and Treatment Tables and Chairs
Healthcare providers use examination and treatment tables and
chairs for many different types of medical and dental examinations and
treatments. Examples of specialty areas using examination or treatment
tables or chairs include ophthalmology, optometry, podiatry, oncology,
physical therapy, chiropractic, rehabilitation medicine, urology, and
obstetrics and gynecology. If a person with a disability cannot get
onto an examination table or chair and is thus not examined (as occurs,
for example, with some women with disabilities who cannot access ob-gyn
tables) or is examined in a wheelchair, any examination that does occur
likely will be less thorough than it would have been on an examination
table, and the medical provider may miss important medical information.
The Department has received complaints and learned in the course of
its enforcement efforts that medical and dental examination tables and
chairs often are too high to be accessible, lack stabilization
elements, and do not have adequate clear floor space nearby to permit
access. Although Section 510 of the Rehabilitation Act does not
specifically address tables and chairs used solely for treatment
purposes, the Department anticipates that such treatment equipment
would be subject to similar accessibility requirements, such as
adjustable heights.
ii. Accessible Scales
Medical providers often do not weigh individuals who use
wheelchairs because they do not have an accessible scale, even though
that information is a routine part of medical examinations and is
important to the patient's health
[[Page 43456]]
and medical care. Patient weight can serve as a health indicator for
many conditions, including depression, diabetes, cancer, cardiovascular
disease, high blood pressure, and pregnancy. Correct patient weight is
crucial to correctly prescribing medicine. Scales should be accessible
to individuals who use wheelchairs or have other mobility disabilities
that would impede the use of step-on scales.
Several different types of scales offer different means of
accommodating patients with mobility disabilities while also affording
flexibility to medical providers. Wheelchair scales are currently
available as stand-alone devices or as equipment that is integrated
into other medical equipment. Stand-alone wheelchair scales include
wall-mounted stationary (folding or not folding), platform (in ground),
and portable platform (folding or not folding).
iii. Radiological Diagnostic Equipment
Some types of radiological diagnostic equipment, such as Magnetic
Resonance Imaging (MRI), Positron Emission Tomography (PET), and X-
rays, including Computerized Axial Tomography (CAT) scans and
mammography, are difficult to access for individuals with disabilities
because of the height, shape, or configuration of the equipment. The
Department has reached settlements with medical offices and hospitals
providing diagnostic services because patients with mobility
disabilities could not access medical diagnostic equipment. Some
individuals with disabilities had difficulty transferring from
wheelchairs onto scanning tables and were denied staff assistance or
not provided access to medical equipment and furniture, such as gurneys
or lifts, to facilitate the transfer to the diagnostic equipment and
furniture. Different types of diagnostic equipment and furniture pose
different challenges. For example, MRIs typically require individuals
with disabilities to climb onto an MRI table and remain on the table
while it is moved into and out of a scanning tube, a process that can
take one to two hours. Mammograms may be inaccessible to individuals
with mobility disabilities who cannot stand for the duration of the
examination.
iv. Lifts
Medical providers may need lifts to transfer some patients with
mobility disabilities safely to examination or treatment tables or
chairs or to gurneys or hospital beds. The kind of assistance needed
will depend on a patient's disability. Using lifts may provide more
security for a patient than being lifted by medical staff and may
reduce the risk of injury to medical staff. Concerns about lifting
injuries have given rise to proposed legislation at the federal and
state levels designed to increase safety for patients and medical
staff. See, e.g., Nurse and Health Care Worker Protection Act of 2009
(S. 1788); Recognizing the Need for Safe Patient Handling and Movement
(H. Res. 510). There are several different types of patient lifts
available now on the market, including free-standing, ceiling-mounted,
and sling lifts. The use of lifts by medical and dental providers may
improve accessibility to medical and dental examination and treatments.
v. Infusion Pumps
Infusion pumps infuse fluids such as chemotherapy drugs, pain
medications, or nutrients into the circulatory system in a controlled
manner. Several kinds of infusion pumps, including Patient Controlled
Analgesia pumps, are available. Problems can arise with infusion pumps
when there are errors in dosing rate or fluid volume. Infusion pumps
often rely on patients controlling settings on difficult-to-reach
buttons or flat screens that may not be accessible to individuals with
disabilities. Integrated alarms may not be audible to individuals with
hearing disabilities.
vi. Rehabilitation Equipment
Medical providers offering rehabilitative services must make those
services equally available to individuals with disabilities.
Rehabilitation and exercise equipment and furniture, including balance
equipment, cardiopulmonary equipment, exercise pulleys and stretching
equipment, resistance equipment, and general exercise equipment, should
be available to individuals with disabilities requiring such
rehabilitative treatment on an equal basis with other patients. For
example, individuals with hearing impairments or blindness or low
vision might require equipment or furniture to permit their full
participation in cardiopulmonary rehabilitative services.
vii. Ancillary Equipment
Ancillary equipment is equipment used with other medical equipment,
such as examination tables or chairs or MRIs, and adapted to or
adjustable for use by individuals with disabilities. Ancillary
equipment includes items such as positioning straps or cushions;
protective padding; adjustable, padded leg supports for gynecological
examinations; and additional supports, rails, or bars needed to ensure
the safety and comfort of patients with disabilities. Sliding boards or
sheets and gait belts may assist in transfers of patients with
disabilities to and from examination or treatment tables and chairs.
Individuals with mobility disabilities may require air mattresses and
cushions, stools, or other pressure relief equipment to aid in the
avoidance or treatment of pressure sores. Accessible call buttons and
telephones can address communication difficulties for patients with
mobility or other types of disabilities.
viii. Hospital Beds and Gurneys
Hospital beds and gurneys can be inaccessible to individuals with
mobility disabilities. Medical care and long-term care facilities do
not always provide accessible beds in the patient and resident sleeping
rooms required to be accessible. In order to permit transfers by
individuals with mobility disabilities, including those using
wheelchairs, accessible height-adjustable beds would allow persons
using wheelchairs and other mobility devices to transfer in and out of
bed as independently as possible. Gurneys used to transport patients
from place to place in a medical facility or used in certain diagnostic
procedures may need to meet the same height requirements. Hospital bed
control devices, for raising and lowering the bed and for other
functions, as well as call buttons, also should be accessible to
patients with disabilities.
ix. Medical Equipment Questions
To assist the Department to develop appropriate requirements for
medical equipment and furniture, we are seeking information that will
inform the rulemaking process. With respect to medical equipment, for
each type of medical equipment it would be helpful to know details
about the accessible features and if particular types of equipment with
accessible features are currently available. The Department is seeking
the following information:
Question 1. The Department is considering adopting the Access
Board's standards for medical diagnostic equipment. What other types of
medical equipment and furniture should the Department include in its
proposed regulation? What modifications to other types of medical
equipment and furniture, including equipment and furniture used for
treatment or other non-diagnostic purposes, such as hospital beds,
should be included in the Department's proposed regulations?
Question 2. The Access Board is expected to promulgate design
standards for medical and dental diagnostic tables and chairs. Are
there tables or chairs used for medical, dental, ophthalmology, or
optometry
[[Page 43457]]
treatments, which are not typically used for diagnostic purposes, that
would pose unique accessibility challenges? What modified features
would make these tables or chairs accessible? What features would
enhance patient stability and facilitate correct positioning?
Question 3. What types of lifts are the safest, most efficient, and
most cost effective in transferring patients with disabilities in
different medical or dental settings? Should the use of lifts or staff
to lift patients be considered a substitute for providing independent
access to medical equipment?
Question 4. If a hospital or medical provider uses staff to lift
patients onto and off of medical equipment and furniture, should it be
excused from the requirement of having lifts in any or all situations?
What types of training programs are available to provide information to
staff on lifting and transferring patients with disabilities? Are there
any particular situations where lifting by staff should not be allowed?
Question 5. What features, such as low bed heights, can best
enhance the accessibility of hospital beds and gurneys? Are these
features available on products currently available?
Question 6. What technologies are currently available to increase
the accessibility of infusion pumps? What types of infusion pumps are
partially or fully operated by patients in the normal course of
treatment?
Question 7. What are the greatest difficulties facing individuals
with disabilities in accessing rehabilitative and exercise equipment
and furniture in a therapeutic setting? What equipment and furniture
most effectively permits accessibility for different types of
rehabilitative needs? Can different types of equipment meet different
access needs of, for example, people with low-vision who need access to
visual displays on equipment? Are there differences between exercise
equipment in therapeutic settings and exercise equipment in non-
therapeutic settings (e.g., gym or fitness center)? What exercise
equipment or machines are available to meet the needs of individuals
with mobility impairments?
Question 8. What types of ancillary equipment are most effective in
different types of medical or dental examination or treatment settings?
Question 9. Is there a need for separate standards for bariatric
medical equipment and furniture in the Department's equipment and
furniture regulation? If so, what equipment and furniture are necessary
to address the needs of patients with disabilities who are obese?
x. Scoping and Triggering Events for Medical Equipment and Furniture
If the Department proposes a rule recommending regulations
requiring accessible medical equipment and furniture, it should provide
guidance on the appropriate amount of different types of medical
equipment and furniture that must be accessible. In making this
determination, the Department might consider the size of a medical
practice or the patient population and other factors. For example, in a
doctor's office with two exam rooms, one accessible examination table
might be a reasonable number of accessible examination tables. However,
in a hospital with multiple medical departments, a reasonable number
might include at least one accessible examination table in each
department. Radiologic and other diagnostic equipment is highly
specialized and a reasonable number of accessible diagnostic equipment
in a radiology department might be one of each type of diagnostic
equipment.
The Department is considering proposing that entities have eighteen
months from the date of the publication of a rule to come into
compliance with medical equipment and furniture requirements. The
timeframes for replacing different types of medical equipment and
furniture may vary widely. The very high cost of some radiological and
diagnostic equipment, such as MRI machines and CAT scans, which often
leads medical providers to lease rather than buy them, might require a
later effective date.
Question 10. What are the key criteria for scoping in different
types of medical settings? What are appropriate scoping requirements
for each of the types of medical equipment and furniture discussed
above?
Question 11. How could medical providers time replacement or
modification of equipment and furniture to ensure that individuals with
disabilities receive equal access to healthcare without undue delay?
What types of triggering events are appropriate for different types of
medical equipment and furniture? Should the Department require the
purchase rather than the replacement of some accessible equipment and
furniture at a certain point? Should the replacement of inaccessible
medical equipment or furniture be triggered only by the end of the
useful life of the equipment or furniture?
B. Exercise Equipment and Furniture
Individuals with disabilities have expressed concerns over the
years about an inability to use exercise equipment and furniture in
health clubs, hotel fitness centers, public recreation centers, public
elementary, secondary, and postsecondary institutions, and other
establishments that offer exercise facilities. The 1991 Standards
contained no scoping or technical requirements relating to exercise
facilities. The Department may propose additional regulations to
enhance the accessibility and usability of exercise equipment by
individuals with disabilities.
Question 12. What types of accessible exercise equipment and
furniture are available on the commercial market? What types of
equipment and furniture are already accessible to individuals with
disabilities? Is independently operable equipment and furniture
available for individuals who are blind or who have low vision, or who
have manual dexterity issues.
Question 13. Should the Department require covered entities to
provide accessible exercise equipment and furniture ? How much of each
type of equipment and furniture should be provided? Should the
requirements for accessible equipment and furniture be the same for
small and large exercise facilities, and if not, how should they
differ?
C. Accessible Golf Cars
The Department is considering issuing regulations specific to golf
cars and may propose requiring golf courses that provide golf cars,
when replacing or acquiring additional standard golf cars, to provide
accessible golf cars for use by individuals with disabilities.
An accessible golf car means a device that is designed and
manufactured to be driven on all areas of a golf course, is
independently usable by individuals with mobility disabilities, has a
hand operated brake and accelerator, carries golf clubs in an
accessible location, and has a seat that both swivels and rises to put
the golfer in a standing or semi-standing position. The 1991 regulation
contained no language specifically referencing accessible golf cars.
Although the 2004 ANPRM raised the possibility of requiring that golf
courses make at least one specialized golf car available for the use of
individuals with disabilities, the Department stated in the 2008 NPRM
that it was not going to propose a specific requirement at that time.
The Department of Defense has required the use of single-rider
accessible golf cars in federally-owned golf courses pursuant to
Section 664 of the John Warner National Defense Authorization Act for
Fiscal Year 2007 (Pub. L. 109-364).
[[Page 43458]]
Question 14. What is the most effective means of addressing the
needs of golfers with mobility disabilities? Are golf cars currently
available that are readily adaptable for the addition of hand controls
and swivel seats? If so, are those cars suitable for driving on greens?
To what extent are accessible golf cars of all types stable,
lightweight, and moderately priced?
Question 15. What are appropriate scoping requirements for
accessible golf cars? Should the criteria used to determine scoping
stem from factors including the number of golf course patrons, the
number of golfing holes (e.g. nine, 18, or 27) at the facility, the
number of inaccessible golf cars in use, or other criteria? Should each
18-hole course be required to provide a certain number of accessible
golf cars?
D. Beds in Accessible Guest Rooms and Sleeping Rooms
The Department is considering regulating the accessibility of beds
in accessible guest rooms and sleeping rooms, such as dormitories in
educational institutions and social service establishments. Many
individuals with disabilities have urged the Department to regulate the
height of beds, particularly in accessible hotel guest rooms, and to
require that such beds have clearance under the bed to accommodate a
mechanical lift. In recent years, hotels have provided higher beds,
using thicker mattresses that make it difficult or impossible for many
individuals who use wheelchairs to transfer onto the beds. Some of
these mattresses have pillow tops that raise the height of the bed by
several inches and then, once the individual has transferred to it,
compress and reduce the height of the bed. Thus, a bed with a pillow
top that is low enough to transfer to from a wheelchair may be too low,
once it is compressed, to transfer safely back to the wheelchair. In
addition, many hotel beds use a solid-sided platform base for beds with
no clearance underneath, which prevents the use of a portable lift to
transfer an individual onto the bed.
Question 16. Should the Department develop a general standard that
specifies requirements for beds wherever accessible sleeping
accommodations are required? What are appropriate bed heights to ensure
accessibility by individuals with mobility disabilities and should
there be requirements for mattresses to ensure that the height of the
mattress, even when compressed by the weight of a person sitting or
laying down on it, remains within a certain range? Are there existing
standards that the Department should look to for developing standards
for beds in accessible rooms? What is the optimal clearance needed
under a bed to accommodate a mechanical lift? Should any such
requirements apply to all accessible guestrooms or sleeping rooms or
only to a percentage of them? What time line should the Department
establish for requiring accessible beds in accessible guest rooms and
sleeping rooms and should such a time line be phased in?
E. Beds in Nursing Homes and Other Care Facilities
Nursing homes, assisted living facilities, and other care
facilities may have beds that are too high or too low, which can be a
problem for individuals with disabilities. In addition, many of these
beds have electronic controls and switches that may not be accessible
for individuals with mobility, dexterity, or visual or auditory
disabilities. The Department may propose regulations to ensure the
accessibility of beds in nursing homes and other care facilities.
Question 17. Should the standards be different for adjustable beds,
such as hospital beds, and for fixed height beds? Should the Department
treat beds in nursing homes in the same manner as beds in hospitals?
Should the Department treat beds in nursing homes or hospitals in the
same manner as it treats beds in places of lodging? Should all
accessible rooms have adjustable beds?
F. Electronic and Information Technology
The Department believes that it is important for individuals with
disabilities to have an equal opportunity to use electronic and
information technology (EIT) equipment and furniture, such as kiosks,
interactive transaction machines (ITMs), point-of-sale (POS) devices,
and automated teller machines (ATMs). Individuals with disabilities who
engage in financial or other transactions should be able to do so
independently and not have to provide third parties with private
financial information, such as a personal identification number (PIN).
Equipment and furniture are covered for both physical access and
effective communication.
Among the available equipment and furniture that use EIT are
kiosks, which are interactive computer terminals that provide a wide
range of services, including information sharing, ticketing, airline
check-in, Internet access, movie ticket sales and DVD rentals, security
screening, bill paying, and photo developing. ITMs include POS devices,
such as credit card payment terminals, retail store self-checkout
stations, machines used for ordering food at quick service restaurants,
and gas station pay-at-the-pump systems. The number of POS machines
used by businesses and state and local programs and activities (such as
at student unions at state colleges and universities) nationwide
continues to increase, as does the range of transactions handled by
these machines. With the advent of touch screen technology, customers
are now required to enter data using a flat screen while reading
changing visual information and instructions. Persons who cannot see
the flat screen must rely on other people to input their information,
including their personal identification numbers (PINs). At least one
state (California) already requires all check-out locations with a flat
screen POS device to have a permanently attached tactile keypad that is
usable by individuals with visual disabilities. Cal. Fin. Code 13082
(West 2006). While some POS devices are mounted at a height that fits
within current reach range guidelines, the Department is aware that the
fixed upward orientation of some of these devices can impede their
accessibility by making it difficult for a person with a mobility
disability to view the screen, enter a PIN, or sign an authorization.
The Department's preamble to its 1991 regulations explained that,
``[g]iven that Sec. 36.304's focus is on the removal of physical
barriers, the Department believes that the obligation to provide
communications equipment and devices * * * is more appropriately
determined by the requirements for auxiliary aids and services under
Sec. 36.303.'' 56 FR 35544, 35568. The 1991 Standards contained
requirements for physical accessibility for ATMs and also required that
``[i]nstructions and all information for use shall be made accessible
to and independently usable by persons with vision impairments.'' 28
CFR part 36, app A, section 4.34.5. The Department has traditionally
taken the position that the communication-related elements of ATMs are
auxiliary aids and services, and are not physical elements. On March
22, 2010, the Access Board published an ANPRM seeking public comment on
its plans to amend the 2004 ADA/ABA Accessibility Guidelines to include
technical guidelines for self-service machines used for ticketing,
check-in or check-out, seat selection, boarding passes, or ordering
food in restaurants and cafeterias. See 75 FR 13457. In the ANPRM, the
Access Board noted the proliferation of inaccessible POS machines,
kiosks, and other self-service machines and referenced ADA
[[Page 43459]]
litigation against various public accommodations over the past ten
years that has resulted in numerous settlement agreements and
structured negotiations requiring the installation of tactile POS
devices.
Question 18. What are the challenges posed by the inaccessibility
of EIT, including EIT kiosks, POS devices, and ITMs? Are there issues
regarding other uses of EIT that the Department should consider
adopting to ensure that EIT equipment is accessible?
i. EIT for Effective Communication in Accessible Rooms
The Department's title III regulation, 28 CFR 36.303(d)(1) requires
places of public accommodation that provide customers, patients, or
clients the opportunity to make outgoing telephone calls on more than
an incidental convenience basis to make TTYs available for the use of
customers, patients, or clients who have communication disabilities. It
has been suggested that the Department should expand the coverage of
this section to require covered entities to provide recognize that
there are a wide range of devices now used as communication aids by
individuals with disabilities. Therefore, the Department seeks comments
regarding the incorporation of EIT into this requirement as it applies
to accessible sleeping rooms in facilities such as hospitals, nursing
homes, hotels, or other places of lodging to permit effective
communication by individuals with disabilities, including those who are
deaf or hard of hearing.
New technologies have emerged that permit the use of EIT for
effective communication. As telecommunication technologies are
developing, persons with disabilities are transitioning from analog or
legacy devices to digital telecommunication devices. Among these
devices are video phones (including web cam), text messaging pagers and
computers, and captioned telephones. Video relay services (VRS) permit
individuals who use sign language for communication to use a video
remote interpreting service (VRI). The relay services are under the
jurisdiction of the Federal Communications Commission. Text
communications can be divided into two types: Real time, and non-real
time. Real-time text communications refer to those that are sent and
received on a character-by-character basis; the characters are sent
immediately once typed and also displayed immediately to the receiving
person. Non-real time communications rely on messaging capabilities
where users ``type-enter-wait-read-respond-reply''--e.g., short
messages service (SMS) texts, multimedia messaging service (MMS),
instant messaging (IM), text chat, and e-mail.
Question 19. What types of EIT would permit individuals with
communication disabilities to most effectively communicate from an
accessible hospital room, nursing home facility, guest or sleeping
room? Should the Department regulate effective communication from such
facilities? What are the costs associated with various types of EIT in
such settings?
ii. Scoping and Triggering Events for EIT Equipment
The Department is considering possible criteria for establishing
scoping and triggering events for EIT devices and for particular
features of such devices, such as tactile controls or voice output.
Such criteria might include the total number of EIT devices in a
certain facility.
Question 20. What are appropriate scoping criteria for the
availability of accessible EIT and triggering events for the
replacement or refurbishing of EIT devices, including kiosks, ITMs and
ATMs, to ensure accessibility?
G. Other Types of Equipment and Furniture
Different types of equipment and furniture can pose challenging
accessibility problems or can serve as remedies to those problems. The
Department welcomes public input on other types of equipment and
furniture that warrant attention. For example, the Department is aware
that equipment and furniture exists that may provide ready access for
individuals with disabilities, including pool chairs that permit
individuals who use wheelchairs to enter a pool with a sloped entrance
without submerging their personal wheelchair and shower chairs for
accessible hotel rooms with roll-in showers. The Department has learned
that access to computer terminals in public libraries, which allow
members of the public to access the Internet, often lack accessibility
features (such as screen readers) and are in inaccessible locations.
Another concern is access to television in hotels, hospitals, nursing
homes, and other care facilities when certain television sets do not
provide a way for consumers to turn closed captions on and off.
Question 21. Are there other types of equipment or furniture that
impede accessibility that should be specifically addressed in the
Department's regulation? What types of accessible equipment or
furniture would effectively address any such concerns? What scoping
would adequately address the impediments to accessibility and what
triggering event would be appropriate for each type of other equipment
or furniture? Are there particularly helpful types of equipment or
furniture that are not generally available to the public that may
assist individuals with disabilities, such as pool or shower chairs?
VI. Regulatory Process Matters (SBREFA, Regulatory Flexibility Act,
Executive Orders, Benefits and Costs)
Since this proposal is an ANPRM, the Department is not required to
conduct certain economic analyses or written assessments that otherwise
may be required for more formal types of agency regulatory actions
(e.g., notices of proposed rulemaking or final rules) that are deemed
to be economically significant regulatory actions with an annual
economic impact of $100 million or more or that are expected to have a
significant economic effect on a substantial number of small entities
or non-federal governmental jurisdictions (such as State, local, or
tribal governments). See, e.g., Regulatory Flexibility Act of 1980, 5
U.S.C. 603[not]04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002); E.O.
12866, 58 FR 51735 (Sept. 30, 1993), as amended by E.O. 13497, 74 FR
6113 (Jan. 30, 2009); OMB Budget Circular A-4, http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 25,
2010).
One of the purposes of this ANPRM is to seek public comment from
members of the disability community, public accommodations, and
governmental entities on various topics relating to accessible
equipment and furniture, including perspectives from stakeholders
concerning the benefits and costs of revising the Department's titles
II and III regulations to ensure the accessibility of equipment and
furniture.
Question 22. Do commenters have information available that can aid
the Department in identifying existing accessible equipment and
furniture? What are the costs of accessible equipment and furniture and
how do these costs differ from the costs of inaccessible equipment and
furniture? What are the normal replacement schedules for each of the
types of equipment and furniture discussed in this ANPRM or other types
proposed for coverage? What are the costs and benefits of different
scoping requirements for different types of equipment and furniture?
What are reasonable less costly or burdensome regulatory alternatives
that would still achieve the objectives of the proposed
[[Page 43460]]
rules? What are the costs and benefits, both quantitatively and
qualitatively, of providing individuals with disabilities an equal
opportunity to access health care, recreational facilities, exercise
equipment, furniture in hotels, nursing homes, and hospitals, and
electronic information and transactions? The Department seeks specific
cost information, including information on the costs and benefits, as
well as anecdotal evidence of the costs and benefits of accessible
equipment and furniture.
A. Impact on Small Entities
Consistent with the Regulatory Flexibility Act of 1980 and
Executive Order 13272, the Department must consider the impacts of any
proposed rule on small entities, including small businesses, small
nonprofit organizations, and small governmental jurisdictions. See 5
U.S.C. 603-04 (2006); E.O. 13272, 67 FR 53461 (Aug. 13, 2002). The
Department will make an initial determination as to whether any rule it
proposes is likely to have a significant economic impact on a
substantial number of small entities, and if so, the Department will
prepare an initial regulatory flexibility analysis analyzing the
economic impacts on small entities and regulatory alternatives that
reduce the regulatory burden on small entities while achieving the
goals of the regulation. In response to this ANPRM, the Department
encourages small entities to provide cost data on the potential
economic impact of adopting a specific requirement for Web site
accessibility and recommendations on less burdensome alternatives, with
cost information.
Question 23. The Department seeks input regarding the impact the
measures being contemplated by the Department with regard to accessible
equipment and furniture will have on small entities if adopted by the
Department. The Department encourages you to include any cost data on
the potential economic impact on small entities with your response.
Question 24. Are there alternatives that the Department can adopt,
which were not previously discussed, that will alleviate the burden on
small entities? Should there be different compliance requirements or
timetables for small entities that take into account the resources
available to small entities or should the Department adopt an exemption
for certain or all small entities from coverage of the rule, in whole
or in part. Please provide as much detail as possible in your response.
Dated: July 21, 2010.
Thomas E. Perez,
Assistant Attorney General, Civil Rights Division.
[FR Doc. 2010-18331 Filed 7-22-10; 4:15 pm]
BILLING CODE 4410-13-P