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NCD letter to DOJ on accessible MDE proposed rule

Monday, February 12, 2024

Submitted electronically through www.regulations.gov and postal mail

February 12, 2024

Rebecca B. Bond, Chief
Disability Rights Section, Civil Rights Division
U.S. Department of Justice
150 M St. N.E., 9th Floor
Washington, D.C. 20002 

Re: RIN 1190-AA78 - Nondiscrimination on the Basis of Disability; Accessibility of Medical Diagnostic Equipment of State and Local Government Entities

Dear Ms. Bond:

The National Council on Disability (NCD) is an independent, bipartisan federal agency charged with providing advice to the President, Congress and federal agencies on matters affecting the lives of people with disabilities. NCD is required to “review and evaluate on a continuing basis - policies, programs, practices, and procedures concerning individuals with disabilities conducted or assisted by Federal departments and agencies…in order to assess the effectiveness of such policies, programs, practices, procedures…in meeting the needs of individuals with disabilities.”[\[1]](#_ftn1) NCD also “review(s) and evaluate(s) on a continuing basis new and emerging disability policy issues affecting individuals with disabilities at the Federal, State, and local levels,…including access to health care.”[\[2]](#_ftn2)

NCD commends the Department of Justice (DOJ) and its Civil Rights Division for issuing this proposed rule to address a significant barrier to equitable healthcare for people with mobility disabilities.

Equitable access to health care for people with disabilities is a top priority for NCD. As you note, NCD issued a report in 2021, urging DOJ to formally adopt the U.S. Access Board’s accessible MDE standards because the lack of accessible MDE in most health care settings contributes to a lack of preventive care for patients with mobility disabilities that is necessary for early diagnosis of diseases, and is part of the cause of poor health outcomes, poorer quality of life, and shorter length of life for people with mobility disabilities.[[3]](#_ftn3) Issuance of this rule would help ensure that people with mobility disabilities have an opportunity to benefit from medical care provided equal to the opportunity provided to people without disabilities.

Responses to Selected Questions

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.  

Response:

We agree that 60 days is an appropriate amount of time for these 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).

Response: We do not object to the application of different scoping requirements for different types of accessible MDE based on usage. For example, patients will utilize examination chairs, examination tables, and weight scales during medical appointments more frequently than using equipment like a mammography machine. A ten percent requirement for mammography equipment, x-ray machines, and other radiology equipment may be sufficient for any size recipient. But as we describe below, we do not support the ten percent and twenty percent requirements for other types of accessible MDE, based on the type of setting where it will be used, that DOJ proposes.

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.

Response:  DOJ proposes that:

Physician’s offices, clinics, emergency rooms, hospitals, outpatient facilities, multi-use facilities, and other medical programs and activities that do not specialize in treating conditions that affect mobility and use MDE to provide programs or activities, 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 twenty 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. If a dental practice has one x-ray machine, that x-ray machine would be required to be accessible.

Rehabilitation facilities that specialize in treating conditions that affect mobility, outpatient physical therapy facilities, and other medical programs and activities that specialize in treating conditions that affect mobility, would have to have at least 20 percent of each type of MDE used in these types of programs and activities, but no fewer than one unit of each type of MDE, must comply with the MDE Standards.

Response: We do not believe the proposed scoping requirement of 10 percent accessible MDE (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) or the proposed scoping requirement of 20 percent accessible MDE (for rehabilitation facilities that specialize in treating conditions that affect mobility, outpatient physical therapy facilities, and other medical programs and activities that specialize in treating conditions that affect mobility) are sufficient to meet the current and future needs of a growing population of people with mobility disabilities, nor would they support the needs of practitioners that provide their care.

First, most physician’s offices, clinics, emergency rooms, hospitals, outpatient facilities, multi-use facilities do not specialize in mobility conditions, but people with mobility disabilities, just like the general population, normally and frequently utilize them to receive health care and 10 percent does not adequately respond to the current and future need for accessible MDE in such facilities. Second, the nation’s current and projected demographics speak to the need for health care facilities that are accessible to both the current population of people with mobility disabilities as well as a growing number of older people who will have mobility challenges and mobility disabilities at varying levels.

As you recognize in this proposed rule, the accessibility or inaccessibility of MDE impacts a substantial population. The U.S. Census Bureau, estimates that 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.[[4]](#_ftn4) This data is already dated, and due to the correlation between aging and disability, the percentage of people who need accessible MDE is growing due to the U.S.’ increasing older population.[[5]](#_ftn5) The CDC reports that disabilities are more common among adults 65 years of age and older; approximately 2 in 5 adults in this age group have a disability,[[6]](#_ftn6) and the Census Bureau reports that the nation’s 65-and-older population will nearly double in size in coming decades, from 49 million in 2016 to 95 million people in 2060: specifically, the percentage of people aged 65 and older will grow from about 15 percent in 2016 to nearly a quarter of the population in 2060, and the number of people 85 years and older is expected to nearly double by 2035 (from 6.5 million to 11.8 million) and nearly triple by 2060 (to 19 million people).[[7]](#_ftn7) This proposed rule provides the opportunity for our health care system to be prepared to meet these needs.

We therefore urge DOJ to increase the percentage of accessible MDE that will be required in both types of facilities/programs. We recommend that DOJ require facilities or programs that do not specialize in mobility conditions to ensure that at least 20 percent of examination chairs, examination tables, and weight scales are accessible. Second, we recommend that DOJ require facilities or programs that specialize in mobility conditions to ensure that at least 40 percent of examination chairs, examination tables, and weight scales are accessible. We do not object to a 10 percent requirement for radiology machines in either type of facility or program.

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).

Response to Issues 6 and 7: NCD supports DOJ’s proposed application of the 2010 ADA Standards to the dispersion of accessible MDE which would require any facility or program that has multiple departments, clinics, or specialties, which utilize MDE to disperse the accessible MDE proportionately across departments, clinics, or specialties. We strongly believe that the goal for such facilities should be to have accessible MDE in every department, clinic, and specialty. To that end, DOJ should require that, as such a facility or program acquire accessible MDE, it shall ensure that at least one accessible exam table and weight scale (in departments that weigh patients) is located in every department/clinic/specialty for the convenience of both the providers and the patients. The ability of a facility to achieve this goal may be limited by the amount of accessible MDE that DOJ will require compared to the facility’s size, however, placement of accessible MDE to each area should be the ultimate goal.

Issue 8: The Department seeks information regarding: The extent to which accessible MDE can be moved or otherwise shared between clinics or departments; the burdens that the rule’s proposed approach to dispersion or additional dispersion requirements may impose on recipients; and 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).

Response: It will be difficult and time consuming to share accessible MDE between departments. One can imagine a host of scenarios where this would be a challenge, e.g., a patient has a same day appointment and the accessible MDE is being used; a patient indicates the need for accessible MDE, staff locate and move the equipment and the patient has to reschedule (creating unnecessary work for recipients in preparing for an appointment); finding out a patient needs it only after they arrive, delaying the appointment time while MDE is moved. Other considerations include the need to develop procedures for locating and safely moving MDE; determining which MDE is available; moving it to the department where it is needed prior to the time of the patient’s appointment to prevent delays in care; and developing procedures on how to assist, examine, and weigh the patient if there isn’t accessible MDE available. Asking a patient to go to another department where accessible MDE is located also can delay care and cause embarrassment to the patient and disrupt both physicians’ and patients’ schedules.

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 requirements proposed for public entities in paragraph (c) will make preventive care (and health care in general) accessible to millions of people with disabilities. Thelack of preventive care has been linked to poor health outcomes, poorer quality of life, and shorter length of life for people with disabilities. When a person cannot be properly examined because he cannot transfer onto an exam table, or an x-ray machine for example, non-diagnosis and misdiagnosis are likely. Disease and illness that can be treatable if caught early, become worse or incurable, resulting in high human and economic costs. We agree with the expectation described in DOJ’s Preliminary Regulatory Impact Analysis (PRIA), which states that DOJ expects “potential enormous unquantified benefits” to people with disabilities, specifically, 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 benefits of 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.”[[8]](#_ftn8)

In contrast, the economic impact of the requirements on public entities will be modest.  According to the PRIA, “the proposed rule will not have a significant economic impact on a substantial number of small entities due to two reasons: (1) the costs of the proposed rule are small relative to the revenues of affected entities, including affected small entities; and (2) even the smallest affected entities would be unlikely to face a significant impact. The findings show that compliance costs of the proposed regulation account for no more than 1 percent of annual revenue for small governmental entities.”[[9]](#_ftn9)

The modest requirements will also be offset by the positive economic impact of more people being able to access preventive care.  The Centers for Disease Control reported that that chronic diseases that are avoidable through preventive care services account for 75 percent of the nation’s healthcare spending and lower economic output in the US by $260 billion dollars a year.[[10]](#_ftn10)

The Department seeks public comment on whether two years would be an appropriate amount of time for the requirements of paragraph (c); and if two years would not be an appropriate amount of time, what the appropriate amount of time would be.

Response: We recommend that DOJ give entities one year to comply with the modest requirement to acquire a height-adjustable exam table, and 120 days to acquire an accessible weight scale.

A few factors weigh in favor of shorter implementation dates. First, the ADA and DOJ’s implementing regulations have always mandated that public entities provide accessible equipment under the program accessibility, reasonable modification, auxiliary aids and services, and barrier removal requirements, so the specific requirement will not be a surprise. Some entities already have this equipment so the specific requirement will not impact them. Also, it is unlikely that acquiring these two pieces of equipment would constitute a fundamental alteration or an undue burden, but if it did, the entity could avail itself to these defenses.[[11]](#_ftn11)

In closing, we thank DOJ for issuing this proposed rule to address discrimination experienced by people with disabilities in accessing health care. We fully support the issuance of this rule. Should you have questions about anything in this response, please contact Joan Durocher, General Counsel and Director of Policy, at jdurocher@ncd.gov and Ana Torres-Davis, Senior Attorney Advisor, at atorresdavis@ncd.gov.

Respectfully, 

Claudia Gordon

Acting Chair


[[1]](#_ftnref1) 29 U.S.C. § 781(a)(5) - (a)(6).

[[2]](#_ftnref2) 29 U.S.C. § 781(a)(10).

[[3]](#_ftnref3) Nat’l Council on Disability, Enforceable Accessible Medical Equipment Standards: A Necessary Means to Address the Health Care Needs of People with Mobility Disabilities, (May 20, 2021), https://www.ncd.gov/report/eames-report/

[[4]](#_ftnref4) U.S. Census Bureau, American Community Survey, Disability Characteristics, https://data.census.gov/​cedsci/​table?​t=​Disability&​tid=​ACSST1Y2019.S1810 [ https://perma.cc/​KX82-VMYD].

[[5]](#_ftnref5) Id.

[[6]](#_ftnref6) Centers for Disease Control and Prevention,  Prevalence of Disabilities and Health Care Access by Disability Status and Type Among Adults — United States, 2016,

https://www.cdc.gov/ncbddd/disabilityandhealth/features/kf-adult-prevalence-disabilities.html.

[[7]](#_ftnref7) U.S. Census Bureau, Demographic Turning Points for the United States: Population Projections for 2020 to 2060, P25-1144, 2018, 3, February 2020. Available at: https://www.census.gov/content/dam/Census/library/publications/2020/demo/p25-1144.pdf

[[8]](#_ftnref8) Preliminary Regulatory Impact Analysis: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.ada.gov/assets/pdfs/mde-pria.pdf, at p. 6.

[[9]](#_ftnref9) Id.

[[10]](#_ftnref10) https://healthpayerintelligence.com/news/how-preventive-healthcare-services-reduce-spending-for-payershttps://www.cdc.gov/chronicdisease/about/costs/index.htm

[[11]](#_ftnref11) See, Nondiscrimination on the Basis of Disability; Accessibility of Medical Diagnostic Equipment of State and Local Government Entities, 88 FR 2183, 2190 (January 12, 2024), under “§ 35.211(e) Fundamental Alteration and Undue Burden.”

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An official website of the National Council on Disability