The Department is proposing a new regulation for accessibility in medical care facilities operated by both state and local governments and public accommodations. The regulation requires the dispersion of accessible patient bedrooms.  The Department also declined to issue a regulation on accessible medical equipment

The Department’s Discussion of Dispersion of Accessible Patient Bedrooms

In both the ADA Title II and ADA Title III Notices of Proposed Rulemaking, the Department acknowledged that the Access Board sought comment on how dispersion of accessible sleeping rooms can effectively be achieved and maintained in medical care facilities such as hospitals. In response, commenters representing people with disabilities supported a requirement for dispersion of accessible sleeping rooms among all types of medical specialty areas, such as obstetrics, orthopedics, pediatrics, and cardiac care. Conversely, commenters representing the health care industry pointed out that treatment areas in health care facilities can be very fluid due to fluctuation in the population and other demographic and medical funding trends. The Access Board decided not to add a dispersion requirement because compliance over the lifetime of the facility could prove difficult given the need for flexibility of spaces within such facilities. The Department recognizes that it may be difficult to ensure a perfect distribution of rooms throughout all specialty areas in a hospital, but the Department is concerned that the absence of any dispersion requirement may result in inappropriate concentrations of accessible rooms.

The Department’s Questions 43 and 58 asked:

Is there a way to ensure that accessible hospital rooms are dispersed throughout the facility in a way that will not unduly restrain the ability of hospital administrators to allocate space as needed? The 1991 Standards require that ten percent (10%) of the patient bedrooms be accessible. If it is not feasible to distribute these rooms among each of the specialty areas, would it be appropriate that required accessible rooms be dispersed so that there are accessible patient rooms on each floor? Are there other methods of dispersal that would be more effective?

Comment:

We strongly support the Department’s decision to include a dispersion requirement. It would be a mistake to omit a dispersion requirement in the federal regulations. Without guidance, hospitals are likely to do what is easiest, and that will lead to facilities that have no accessible patient rooms in some treatment areas, and a concentration of rooms in others. Since patients with disabilities must be housed in treatment areas related to their medical condition (e.g. cardiac care, obstetrics, respiratory care, psychiatry), they require accessible rooms in these areas and on floors where their providers work and specialized equipment is placed. The accepted standard of care would not be met if they were to be housed on a floor or wing of a facility that does not provide the specialty care they require solely because an accessible patient room is not available on the appropriate floor or within the appropriate area. Furthermore, aggregating accessible rooms in one or a few locations perpetuates segregation of people with disabilities and disregards the aging population’s growing need for accessibility features. Therefore, we recommend that the regulations specify that the 10% of rooms that are mandated to be accessible must be dispersed proportionally throughout each specialty unit.

Rationale for the Comment :

The industry commenters who cited “fluctuation in the population and other demographic and medical funding trends” as reasons to avoid regulations requiring dispersal were wrong for three reasons.

First, hospitals are accustomed to compliance with vigorous state and federal mandates to ensure quality of medical care, regardless of their size. They exist in one of the most heavily regulated industries, with guidance and regulations from a myriad of sources, such as the Emergency Medical Treatment and Active Labor Act (EMTALA), community service requirements, uncompensated care pool requirements, Limited English Proficiency requirements, fraud and abuse regulations, medical records regulations, pharmaceutical price regulation, organ transplant regulation, certificate of need processes, hospital rate-setting, hospital accreditation and licensure, and state accreditation and licensure, Joint Commission on Accreditation of Healthcare Organizations (" JCAHO") safety standards, and others. An accessible room dispersal requirement would not be onerous in this context.

Second, trends in utilization in hospital care are observable and thus predictable. (“Adults with functional limitations account for …over 60% of all overnight hospital stays... Given their high rate of health-care utilization, people with disabilities are disproportionately affected by existing access barriers.” Drainoni, Mari-Lynn; Lee-Hood, Elizabeth; Tobia, Carol; Bachman, Sara S.; Andrew, Jennifer and Maisels, Lisa. “Cross-Disability Experiences of Barriers of Health-Care Access.”  Journal of Disability Policy Studies. 17.2 (2006): 102.) Demographic information about populations served by hospitals is widely available, and hospitals are aware of it. Hospitals can – and do – plan effectively for shifts in usage. They plan their facilities to meet their patient and fiscal needs already; therefore, a requirement that accessible rooms be disbursed in a planned way would not be burdensome. Moreover, once accessible rooms are disbursed appropriately, they offer greater flexibility since they could be reconfigured or used temporarily by patients who do not require accessibility features but inaccessible rooms cannot quickly be made accessible when needed by patients with disabilities.

Third, medical funding trends are relatively foreseeable, and hospital construction does not ebb and flow as suddenly as free market contraction. If the commenters’ concern was that a hospital might need to quickly close certain specialty units and therefore might incur unfair expenses in the meantime by dispersing accessible rooms in each special unit, this concern also lacks weight. Hospitals are constrained by state and local rules from suddenly shutting down or shifting uses of hospital wards. Thus, hospitals act deliberately and will have the time to decide which units are going to continue to exist and thus need to be made accessible. No hospital need be in the untenable position of having to disperse the 10% accessible rooms in a unit about to suddenly close.

Therefore, for all the reasons described above, hospitals can fairly be expected to comply with non-segregation mandates in the form of dispersal requirements for accessible rooms.

Not only is the potential difficulty for hospitals overstated by the commenters, but the importance of a non-segregation mandate is downplayed. Significantly, in passing the ADA, Congress described the isolation and segregation of individuals with disabilities as a serious and pervasive form of discrimination. 42 U.S.C. § 12101(a)(2), (5). The Olmstead decision further reinforced that “unjustified institutional isolation of persons with disabilities is a form of discrimination…” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 600 (1999). Similarly, in the hospital context, the history of racial segregation in hospitals has taught us that segregation not only harms by stereotyping and stigmatizing, it also harms by creating environments for lesser standards of care. See Health Care Divided: Race and Healing a Nation, David Barton Smith. Therefore, the importance of prohibiting segregation suggests that the DOJ should require dispersal of the accessible rooms in each unit of a hospital.

Summary of the Department’s Proposal on Medical Equipment and Furniture

In the NPRM the Department announced that it has declined to include regulatory guidance with respect to the acquisition and use of free-standing equipment or furnishings used by covered entities to provide services. The Department acknowledged that many businesses were opposed to additional requirements for free-standing equipment, in part due to a concern that they lacked control of the design or manufacturing of such equipment. The Department explained that the obligation to provide accessible equipment is already covered in the provision requiring modifications in policies, practices, and procedures and the provision requiring barrier removal.  It also explained that under the current regulations, if a person with a disability does not have full and equal access to a covered entity’s services because of the lack of accessible equipment, the entity must provide that equipment, unless doing so would be a fundamental alteration or would not be readily achievable.   The Department also noted its intent to analyze the economic impact of future regulations governing specific types of free-standing equipment. 

Comment:

We oppose the Department’s decision not to add specific regulatory guidance or clarify requirements for accessible equipment and furniture in the federal regulations. In particular, we are deeply concerned that the failure to list explicit examples of accessible medical equipment will further existing unequal access to medical care for persons with disabilities. We strongly recommend that medical care facilities be provided with more concrete guidance to determine their legal obligation to provide equipment that assists or accommodates persons with disabilities.

Rationale for Comment:

As identified in the NPRM, there is a lack of clarity with regard to the obligation of covered entities to acquire and use accessible equipment in their facilities. Although users of many types of public accommodation may be negatively impacted by this ambiguity, lack of guidance in health care settings can mean the difference between life and death for a person with a disability. Depositories, change machines, fuel dispensers, and ATMs have already been identified as equipment worthy of mention in the federal regulations; it is difficult to imagine a more critical setting than medical care facilities in which to provide similarly explicit guidance concerning accessible equipment.

Medical facilities consistently fail to make available accessible equipment, resulting in the delivery of incomplete or inferior health care services to persons with disabilities. Lawsuits and court actions have revealed the lack of basic accessible medical equipment in health care settings. See Metzler et al. v. Kaiser Foundation Health Plan, Inc. et al. See also, U. S. Department of Justice, Enforcing the ADA: A Status Report from the Department of Justice, Washington, D. C., Apr-Jun 2002; Settlement agreement between the United States of America and Georgetown University, full settlement available at: http://www.ada.gov/gtownhos.htm#anchor262953; Settlement Agreement among the United States of America, Plaintiffs Equal Rights Center [and individual plaintiffs], and Washington Hospital Center, full settlement available at http://www.ada.gov/whc.htm.

The absence of height adjustable examination tables and weight scales that can accommodate those standing or seated in mobility devices are commonplace. In a national survey of people with disabilities or activity limitations, 69% of wheelchair users reported that they had difficulty using exam tables, 60% had difficulty being weighed due to inaccessible scales, 45% had difficulty using x-ray equipment (such as mammography equipment), and 43% had difficulty using medical chairs. See Kailes, J.I., 5 “G’s” Getting Access to Health Care for People with Physical Disabilities, 2008 Version 1, Published and distributed by Center for Disability Issues and the Health Professions, Western University of Health Sciences, 309 E. Second Street, Pomona, CA 91766-1854, Phone: (909) 469-5380, TTY: (909) 469-5520, Fax: (909) 469-5407, Email: ahcs@westernu.edu, www.CDIHP.org, available at: http://www.cdihp.org/Five%20Gs%20apr21.pdf. Dental care settings also routinely fail to provide accessible dental chairs and diagnostic procedures for persons with disabilities. The result of these failures to acquire and utilize accessible equipment can range from unnecessary pain to misdiagnosis to the development of life-threatening conditions that may have been prevented had they been detected earlier. See, e.g., http://www.cdihp.org/briefs/brief1-exam-tables.html.

According to the NRPM, some health care facilities have expressed concern that they lack control of the design or manufacturing of accessible equipment, however, there are a range of accessible products and equipment available on the market including height adjustable exam tables, and wheelchair accessible weight scales and mammogram machines.. Id. According to a 2001 report, accessible examination tables are easily obtained and at reasonable cost. Kaye, Stephen H., “Disability Watch Volume 2: The Status of People with Disabilities in the United States,” Disability Rights Advocates, Oakland California. (2001): 19. Increased demand for products will only lower the cost. Moreover, as made clear by existing statutory language, a lack of direct control over the production of equipment does not justify or excuse a failure to provide accessible services and goods to the public. See, 42 U.S.C. § 12182(b)(1). Covered entities are required to make purchases and secure services keeping in mind their legal obligations to ensure equal access.

The Department indicates that it intends to conduct an economic impact analysis of regulations governing specific types of free-standing equipment, presumably out of concern for the financial impact new regulatory language will have on businesses. We submit that this concern is unwarranted given the balancing test built into the existing federal regulations; covered entities need not purchase or acquire equipment if it would result in a fundamental alteration of services or an undue burden. Seventeen years have passed since the federal regulations were first proposed, providing ample time to have assessed the financial impact of acquiring particular free-standing equipment on businesses. By explicitly listing high priority equipment commonly used in health care settings, covered entities will have more incentive to budget for and acquire this necessary equipment. The Department must not wait for the industry to interpret its obligations – it must provide clear regulatory guidance in this important area. Some states have already adopted such guidance regarding medical equipment in their state accessibility codes. See, e.g., the medical care facility section of Massachusetts’s accessibility code: “Where examining tables are provided in exam rooms, they shall be adjustable in height from 15 inches (381mm) above the floor” 521 MA ADC 13.2.1.

We recommend that the Department list, at a minimum, the following pieces of high-priority medical equipment in the federal regulations: accessible examination tables; accessible weight scales; accessible diagnostic and imaging equipment (including mammogram machines); and accessible medical/dental chairs. We encourage the Department to list other pieces of equipment, though the aforementioned equipment is most critical to ensuring comprehensive and equal medical treatment for persons with disabilities. We recommend that the Department adopt the structure found in the “Auxiliary aids and services” section of the Title III regulations (28 C.F.R. § 36.303). Although the list is not exhaustive, it is illustrative of the range of efforts that need to be made in order to ensure that no individual with a disability is excluded, denied services or treated differently than other individuals. Individuals with disabilities in health care settings similarly deserve such explicit protections and health care providers should be provided with such regulatory guidance.

We strongly urge the Department to adopt the following language to ADA regulation for Title II (see brackets for language) and Title III:

Sec. --- Accessible Medical Equipment.

(a) General. A public accommodation [public or government-funded entity] shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of accessible medical equipment and treatment, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.

(b) Examples. The term "accessible medical equipment and treatment'' includes --

(1) Examination tables (height adjustable, with a minimum height of 15” from the floor, extra-wide top and higher weight capacities, adjustable hand rails, and adjustable foot/leg supports), weight scales with accessible features, diagnostic and imaging equipment (including mammogram machines) with accessible features, medical chairs (including dental chairs) with accessible features;

(2) Acquisition or modification of equipment or devices and implementation of necessary policies;

(3) Provision of appropriate training for staff; and

(4) Other similar actions, such as provision of headrests or pillows.

(c) Equal treatment. A public accommodation [public or government-funded entity] shall furnish accessible medical equipment where necessary to ensure full and equal medical care for individuals with disabilities.

(d) Alternatives. If provision of a particular piece of accessible medical equipment by a public accommodation [public or government-funded entity] would result in a fundamental alteration in the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or in an undue burden, i.e., significant difficulty or expense, the public accommodation [public or government-funded entity] shall provide an alternative accommodation, if one exists, that would not result in an alteration or such burden but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the goods, services, facilities, privileges, advantages, or accommodations offered by the public accommodation [public or government-funded entity].

We also propose that the Department add the following section regarding floor space in the context of medical equipment:

Sec. -- Clear Floor Space. Medical Equipment. Exam tables, scales, and diagnostic and imaging equipment shall have a clear floor space complying with 305 positioned for transfer or for use by an individual seated in a wheelchair. Clear floor or ground spaces required at diagnostic and imaging equipment shall be permitted to overlap.

Advisory for 1004.1 One clear ground or floor space is permitted to be shared between two pieces of medical equipment. The position of the clear floor space may vary greatly depending on the use of the equipment. For example, to provide access to a bone density scanner that operates with the patient in a supine position, clear floor space next to the table would be appropriate to allow for transfer. Clear floor space for a mammography machine, designed for use by an individual seated in a wheelchair, however, will most likely be centered on the scanning mechanisms.

The Department’s Proposal to remove the Requirement for Covered Entrances at Medical Care Facilities

Passenger Loading Zones at Medical Care & Long-term Care Facilities. Sections 6.1 and 6.2 of the 1991 ADA Accessibility Guidelines and the proposed section 209.3 of the 2004 ADA Accessibility Guidelines require medical care and long-term care facilities, where the period of stay exceeds 24 hours, to provide at least one passenger loading zone at an accessible entrance. The 1991 Standards also require a canopy or roof overhang at the passenger loading zone. The proposed new standards will not require a canopy or roof overhang.

Comment:

We oppose the Department’s proposal to eliminate existing standards that require a canopy or roof overhang at passenger loading zones.

Rationale for Comment:

The Department has provided no support for eliminating the existing requirement, and there is no reason to think that persons with disabilities are no longer in need of protection from inclement weather when using passenger loading zones at medical care facilities. Persons with mobility impairments may require assistance and generally require additional time to enter and exit vehicles, making them vulnerable to harsh weather for longer periods of time.