Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Proposed Rules 2183 

1Nat’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, 

Continued 

paragraph (f)(6)(i) is corrected to read, 

‘‘(f)(4) of this section to be treated as a’’. 

■ 8. On page 82221, the second column, 

eleventh line of paragraph (f)(6)(ii) is 

corrected to read, ‘‘any successor 

form(s), filed with its timely’’. 

■ 9. On page 82222, the first column, 

the seventh line from the bottom of 

paragraph (g)(3)(ii) is corrected to read, 

‘‘property. Paragraphs (g)(3)(ii)(A) and 

(B)’’. 

■ 10. On page 82222, the first column, 

the third line of paragraph (g)(3)(ii)(A) is 

corrected to read, ‘‘generating energy 

property, use the’’. 

§ 1.6418–5 [Corrected] 

■ 11. On page 82223, the second 

column, paragraph (f)(1), the fourth line 

from the bottom of the column is 

corrected to read, ‘‘described in § 1.48– 

13(c)(5)), such’’. 

■ 12. On page 82223, the third column, 

the last line of paragraph (f)(2) is 

corrected to read, ‘‘defined in § 1.48– 

13(c)(4).’’. 

■ 13. On page 82223, the third column, 

the last line of paragraph (f)(3) is 

corrected to read, ‘‘13(c)(3)(ii).’’. 

Oluwafunmilayo A. Taylor, 

Section Chief, Publications and Regulations 

Section, Associate Chief Counsel, (Procedure 

and Administration). 

[FR Doc. 2024–00496 Filed 1–11–24; 8:45 am] 

BILLING CODE 4830–01–P 

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. 

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 tollfree 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 


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2184 Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Proposed Rules 

2021), https://ncd.gov/sites/default/files/ 

Documents/NCD_Medical_Equipment_Report_

508.pdf (‘‘NCD Report’’) [https://perma.cc/6W4UTVEX]. 

2See id. at 17. 

3See id. at 18. 

4 29 U.S.C. 794f(a). 

5See id. at 794f. 

6See 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). 

7 42 U.S.C. 12134. 

8 Id. 12186(b). 

9 56 FR 35694 (July 26, 1991); 56 FR 35544 (July 

26, 1991). 

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. 

14See 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-standardsaccessible-design-go-effect [https://perma.cc/52UBWRR4]. 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). 

16See, 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). 

18See 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]. 

19See 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.’’). 

20 88 FR 63392 (Sept. 14, 2023). 

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

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. 

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

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. 

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

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. 

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 


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21See, e.g., H.R. Rep. No. 101–485(II), at 84 

(1990). 

22See, e.g., 42 U.S.C. 12201(a). 

23See H. Rep. No. 101–485(II), at 84 (1990). 

24Public Law 102–569 (1992). 

25S. Rep. No. 102–357, at 14 (1992). 

26See id.; see also H.R. Rep. No. 102–822, at 81 

(1992). 

27See, 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). 

28 42 U.S.C. 12132. 

29 28 CFR 35.130(b)(7)(i). 

30See 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). 

32 Id. 35.149. 

33 Id. 35.150(a). 

34 Id. 35.150(b)(1). 

35 82 FR 2810 (Jan. 9, 2017). 

36 36 CFR pt. 1195, app., sec. M301–04. 

37See id. sec. M301–02. 

38See id. sec. M303–04. 

39See id. sec. M305–07. 

40See id. sec. M301.2.1, 302.2.1. 

41See id. sec. M301.2.2, 302.2.2; 87 FR 6037 (Feb. 

3, 2022). 

42 88 FR 33056 (May 23, 2023). 

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

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. 

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. 

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

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

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. 

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

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

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 


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43 88 FR 50096 (Aug. 1, 2023). 

44Nat’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, WheelchairAccessible 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%20

and%20Disability%20in%20America/MDE%20

Fact%20Sheet%20Final.docx [https://perma.cc/ 

GW83-62WW]. 

45U.S. Dep’t of Health & Human Servs., Ctrs. for 

Disease Control & Prevention, Disability Impacts All 

of Us, https://www.cdc.gov/ncbddd/disability

andhealth/documents/disabilities_impacts_all_of_

us.pdf [https://perma.cc/AX9E-9WU3]. 

46U.S. Census Bureau, American Community 

Survey, Disability Characteristics, https://

data.census.gov/cedsci/table?t=Disability&

tid=ACSST1Y2019.S1810 [https://perma.cc/KX82- 

VMYD]. 

47See, 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. 

48NCD Report at 15. 

49 Id. at 16–17. 

50See 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). 

51See, 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]. 

52See 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/UH8YNZWL] (June 26, 2020). 

53 Id. 

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. 

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 welldocumented 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

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. 

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/barrierfree

healthcare.htm[https://perma.cc/9TT7- 

BCRN]. 

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. 

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 


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54NCD Report at 14. 

55 Id. at 52. 

56See 28 CFR 35.130(b)(7). 

57See 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/UH8YNZWL] (June 26, 2020). 58See generally 28 CFR 35.151. 

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

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. 

§ 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. 

§ 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. 

§ 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 § 35.211(b), are satisfied. 

• 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 § 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. 

§ 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 


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59See 36 CFR pt. 1191, app. B, sec. 213.3.1. 

60 36 CFR pt. 1195, app., sec. M201. 

61See 36 CFR pt. 1191, app. B, secs. 208.2.2, 

223.2.1, 223.2.2. 

62See 28 CFR 35.151(h); 36 CFR pt. 1191, app. 

B, sec. 223.1. 

63See 36 CFR pt. 1191, app. B, sec. 223.1.1. 

64See id. sec. 223.2.1. 

65See id. sec. 223.2.2. 

66See id. sec. 208.2.2. 

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. 

§ 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. 

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. 

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

• 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 


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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. 

68See 28 CFR 35.130(b)(ii), 35.150(a). 

69See, 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. 

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). 

• 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. 

§ 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 

§ 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 § 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 § 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. 


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70 36 CFR pt. 1195, app., sec. M201.2. 71 28 CFR 35.150. 

§ 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. 

§ 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. 

§ 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. 

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 

§ 35.211(f) is needed. 

§ 35.212 Existing Medical Diagnostic 

Equipment 

In addition to the requirements for 

newly purchased, leased, or otherwise 

acquired MDE, proposed § 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. 

Proposed § 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 § 35.211(e), 

§ 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. 

§ 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 

§ 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 § 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 § 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 § 35.211, the practice 

could ensure that its services are readily 

accessible to and usable by people with 


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72See 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]. 

73Ancillary equipment may include equipment 

such as cushions, bolsters, straps, sliding boards, or 

other items used to facilitate transfers and to help 

position patients. 

74See 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.accessboard.gov/advisory-committee-reports/mde/mdereport/ [https://perma.cc/L2WC-S89L]. 

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

If the means by which a public entity 

carries out its obligation under 

§ 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 § 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 § 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 nondiagnostic 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 nondiagnostic 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.

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 §§ 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 §§ 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 


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75See 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). 

76The 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. 

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. 

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: 

Æ 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? 

Æ Are there particular types of nondiagnostic medical equipment that 

should or should not be covered? 

§ 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: 

Æ The effectiveness of programs used 

by public entities in the past to ensure 

that their staff is qualified; 

Æ Any information on the costs 

associated with such programs; and 

Æ 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

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 

§ 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/mdepria.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. 

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 

rate 

(3 percent) 

Discount 

rate 

(7 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. 

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 


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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]. 

79Public Law 104–113, sec. 12(d)(1) (15 U.S.C. 

272 note). 

80 Id. sec. 12(d)(2). 

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. 

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 welldefined 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

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. 


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

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. 

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 

■ 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 

■ 2. Amend § 35.104 by adding the 

following definitions of ‘‘medical 

diagnostic equipment’’ and ‘‘Standards 

for Accessible Medical Diagnostic 

Equipment’’ in alphabetical order: 

§ 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 

■ 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] 

§ 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. 

§ 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 


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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.

§ 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 

§ 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 

§ 35.211(a) or (c) of this part would

result in a fundamental alteration under 

paragraph (a)(2) if it demonstrates that 

compliance with § 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. 

§ 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. 

§§ 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 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 350, 365, 385, 386, 387, 

and 395 

[Docket No. FMCSA–2022–0003] 

RIN 2126–AC52 

Safety Fitness Determinations 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), Department 

of Transportation (DOT). 

ACTION: Notice of data availability; 

request for comments. 

SUMMARY: This notice of data 

availability (NODA) is to alert 

stakeholders and members of the public 

about information that FMCSA believes 

may be relevant to this proceeding. This 

NODA identifies information the 

Agency has become aware of and 

provides an opportunity for public 

comment. The Agency may consider 

this information in preparation for 

further regulatory action following an 

advance notice of proposed rulemaking 

(ANPRM). 

DATES: Comments must be received by 

February 12, 2024. 

ADDRESSES: You may submit comments 

identified by Docket Number FMCSA– 

2022–0003 using any of the following 

methods: 

• Federal eRulemaking Portal: Go to

https://www.regulations.gov/docket/ 


khammond on DSKJM1Z7X2PROD with PROPOSALS