The Costs of Uncertainty: The DOJ’s Stalled Progress on Accessible Medical Equipment under the Americans with Disabilities Act

12 St. Louis Univ. J. Health L. & Pol’y 351, 2019

Saint Louis U. Legal Studies Research Paper No. 2019-22

17 Pages Posted: 6 Apr 2020 Last revised: 18 Apr 2020

See all articles by Elizabeth Pendo

Elizabeth Pendo

Saint Louis University - School of Law

Date Written: 2019

Abstract

Imagine seeking medical care for serious pressure sores for a year, but your doctor never examining the sores because you could not get on the examination table in her office. Or imagine going more than fifteen years without an annual well-woman examination for the same reason, or your doctor guessing at the right dosage for a prescription because there was no scale that she could use to weigh you.

Although these scenarios may be difficult for many to imagine, they are common experiences for individuals with mobility disability. The Trump administration’s attacks on the Patient Protection and Affordable Care Act (ACA) and its aggressive deregulatory agenda have made headlines. This Article brings attention to an underappreciated story at the nexus of these two efforts—the Department of Justice’s (DOJ) decision to abandon progress toward legal standards for accessible medical equipment necessary to provide health care for millions of Americans.

According to 2016 data from the Centers for Disease Control and Prevention, one in four adults, or sixty-one million individuals, are living with disability in the U.S. Mobility disabilities, which involve difficulty walking or climbing stairs, are the most common type of disability, affecting thirteen percent of adults, and are expected to increase as the population ages. Individuals with mobility disability need the same basic health care as individuals without disability, and the same access to examination tables, weight scales, mammography equipment, and other diagnostic imaging technologies to deliver it. However, a growing body of research documents physical barriers to health care for individuals with disability including lack of accessible medical equipment.

The Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation Act (§ 504 or Rehabilitation Act) mandate equal access to health care programs, services, and facilities for individuals with disability, but neither law provides specific standards and requirements for accessible medical equipment. In recent years and especially since the passage of the ACA, there has been significant progress toward development of explicit standards and other requirements for accessible medical equipment. But on December 26, 2017, the DOJ withdrew four Advance Notices of Proposed Rulemaking (ANPRM) relating to Titles II and III of the ADA, including the ANPRM that would have set standards and requirements for accessible medical equipment.

In prior work, I exposed the impact of inaccessible medical and diagnostic equipment on health care for people with mobility disability and identified remedies under the ADA and ACA. This article integrates my prior work with more recent legal developments and shows how the DOJ’s abrupt abandonment of efforts disadvantages patients with disability and health care providers and institutions alike.0 Part II outlines the legal framework that governs accessible medical equipment and the accelerating progress toward specific standards and requirements before the DOJ’s actions. Part III examines the DOJ’s decision to abandon efforts to set specific standards and requirements for accessible medical equipment. Finally, Part IV suggests that litigation challenging inaccessible medical equipment, among other strategies to improve access, is likely to continue in the absence of clear standards

Keywords: disability, ADA, Americans with Disabilities Act, Section 504, Rehabilitation Act, health care access, health care discrimination

JEL Classification: I1, I14, I18, K32

Suggested Citation

Pendo, Elizabeth, The Costs of Uncertainty: The DOJ’s Stalled Progress on Accessible Medical Equipment under the Americans with Disabilities Act (2019). 12 St. Louis Univ. J. Health L. & Pol’y 351, 2019, Saint Louis U. Legal Studies Research Paper No. 2019-22 , Available at SSRN: https://ssrn.com/abstract=3552981

Elizabeth Pendo (Contact Author)

Saint Louis University - School of Law ( email )

100 N. Tucker Blvd.
St. Louis, MO 63101
United States
(314) 977-2767 (Phone)

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