Withdrawn: 28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability by State and Local Governments and Places of Public Accommodation; Equipment and Furniture (ANPRM)

B. Legal foundation for equipment and furniture coverage

The ADA prohibits discrimination on the basis of disability in all services, programs, and activities offered by public entities and in the operation of privately owned places of public accommodation. The provision of accessible equipment and furniture has always been required by the ADA and the Department's implementing regulations under the program accessibility, reasonable modification, auxiliary aids and services, and barrier removal requirements. Each of the types of equipment and furniture discussed in this ANPRM is subject to coverage under both title II and title III of the ADA.

Title II of the ADA applies to services, programs, or activities of public entities within the meaning of 42 U.S.C. 12133(1)(A). The program accessibility requirement of Title II mandates public entities to operate each service, program, or activity so that, when viewed in its entirety, the service, program, or activity is readily accessible to and usable by individuals with disabilities, subject to a defense of fundamental alteration or undue burden. 28 CFR 35.150(a). Section 35.150(b) specifies that such entities may meet their obligation to make each program accessible to individuals with disabilities through the "redesign of equipment." If an entity invokes a fundamental alteration defense, the entity nonetheless must take other steps that would not fundamentally alter the nature of the services provided. For example, the provision of a height adjustable examination table in a doctor's office may meet the requirement for program accessibility. However, if the provision of an adjustable examination table in a doctor's office would fundamentally alter the nature of the services provided, based on a fact specific inquiry, then the use instead of a nonadjustable examining table of suitable height, might afford an individual with a disability an equal opportunity to participate in the services, programs, and activities offered by that entity.

Title II entities also must ensure that communications with individuals with disabilities are as effective as communications with others and provide appropriate auxiliary aids and services where necessary to ensure that individuals with disabilities have an equal opportunity to participate in and benefit from a service, program, or activity. 28 CFR 35.160. These auxiliary aids include the "[a]cquisition or modification of equipment or devices." 28 CFR 35.104. In addition, equipment and personal property, such as furniture, is specifically included in the definition of "facility" in title II. 28 CFR 35.104. There is an identical definition of "facility" in the regulation implementing title III. 28 CFR 36.104.

Title III of the ADA applies to persons who own, lease or lease to, or operate places of public accommodation, such as doctors' offices, hospitals, nursing homes, hotels and motels, shopping centers, specified public transportation terminals, recreational facilities, such as health clubs or golf courses, restaurants, movie theaters, schools, and day care facilities. 42 U.S.C. 12182(a). Public accommodations discriminate against individuals with disabilities when they enact discriminatory policies or practices, or fail to remove barriers or make requested reasonable modifications in order to accommodate an individual's disability, unless barrier removal is not readily achievable or a modification would fundamentally alter the nature of the business. See 28 CFR 36.304 (barrier removal) and 36.302(a) (reasonable modification). If barrier removal is not readily achievable, then an alternative means must be provided if that alternative means is readily achievable. For example, a standard-height, nonadjustable examining table constitutes an architectural barrier to persons with certain mobility impairments. Therefore, an adjustable table must be provided if it is readily achievable. If it is not readily achievable to obtain such a table, then an alternative, such as a nonadjustable lower height table, must be provided if that alternative is readily achievable.

Public accommodations also must ensure that no individuals with disabilities are excluded, denied services, segregated or otherwise treated differently from other individuals because of the absence of auxiliary aids and services, unless taking such steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or result in an undue burden. 28 CFR 36.303(a). The preamble to the Department's 1991 regulation clarified the manner in which equipment and furniture are covered by the title III regulation. 28 CFR pt. 36, app. B, at 733 (Proposed Section 36.309 Purchase of Furniture and Equipment). Some types of equipment and furniture are covered specifically by the Department's adoption of the 1991 ADAAG as the ADA Standards for Accessible Design. Equipment and furniture may also be covered by other regulatory provisions including reasonable modifications, 28 CFR 36.302; auxiliary aids, 28 CFR 36.303; and barrier removal, 28 CFR 36.304.

While some types of fixed equipment and furniture are explicitly covered by the 1991 Standards, there are no specific provisions in the regulations governing the accessibility of equipment and furniture that are not fixed. See 28 CFR pt. 36, app. A. (Automatic Teller Machines (ATMs) and Fixed or Built-in Seating or Tables). A fixed item is something that is built into the facility, for example, through plumbing. In contrast, an item that is not fixed is not attached to the facility. In order to ensure that not only fixed equipment and furniture be accessible, the Department seeks to provide specific regulatory guidance for the accessibility of equipment and furniture that are not fixed. Whether a type of equipment or furniture is fixed or not is generally not relevant from the perspective of the user. For example, an ATM or vending machine that is fixed is used for the same purpose and in the same manner as an equivalent ATM or vending machine that is not fixed. To the extent that ADA standards apply requirements for fixed equipment and furniture, the Department will look to those standards for guidance on accessibility standards for equipment and furniture that are not fixed.

With regard to making electronic or information technology equipment and furniture accessible to individuals with disabilities, including individuals who are blind or have low vision, Section 508 of the Rehabilitation Act of 1973, which applies to federal agencies, provides guidance for the public on how to make electronic and information technology accessible. See, e.g., 29 U.S.C. 794d.

The Department's experience in the twenty years since the ADA was enacted has given it a better understanding of the barriers posed by inaccessible equipment and furniture and the solutions provided by accessible equipment and furniture. Accessible equipment and furniture is often critical to an entity's ability to provide a person with a disability equal access to its services. Changes in technology have resulted in the development and improved availability of accessible equipment and furniture that benefit individuals with disabilities. Use of the Internet, video interpreting services, screen readers, and text messaging, are just a few examples of technologies that were rare or nonexistent twenty years ago, but are now widely used by individuals with disabilities. New technologies have led to accessible equipment and furniture ranging from accessible medical exam tables for individuals who use wheelchairs to "talking" ATMs and interactive kiosks, which can be used independently and while preserving privacy through the use of headphones by individuals who are blind or have low vision. Consequently, it is easier now to specify appropriate accessibility standards for such equipment and furniture, as the Access Board has done for several types of fixed equipment and furniture, including ATMs, washing machines, dryers, tables, benches, and vending machines. See sections 903, 902, 707, 611, and 228 of the ADA/ABA Accessibility Guidelines.

For all of these reasons, the Department believes that providing specific requirements for accessible equipment and furniture is consistent with the mandates of the ADA and necessary and appropriate at this time.