Law360 Canada
On Jan. 8, United States Attorney General Merrick Garland issued draft revisions to the regulations implementing Title II of the Americans with Disabilities Act (ADA). The draft revisions (Rules) were published in the Federal Register on Jan. 12, and the period for public comments formally ends on Feb. 12.
The Rules are intended to ensure that medical diagnostic equipment (MDE) utilized by public entities to offer health care is accessible to individuals with disabilities. Under the Rules, MDE includes medical examination tables, weight scales, dental chairs and radiological diagnostic equipment.
The concern of Attorney General Garland is that the lack of accessible MDE could have serious implications for the health of individuals with disabilities. The attorney general justified the Rules with reference to a publication of the National 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)):
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.” For instance, patients with disabilities have had to forgo pap smears because they could not safely transfer from their wheelchairs to a fixed-height exam table. Similarly, inaccessible mammography machines have contributed to low breast cancer screening rates for patients with disabilities.
If the Rules are implemented by Attorney General Garland, the following will be required of public entities in the United States:
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.
…
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.
Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Proposed Rules (paragraphs 35.212 and 35.213).
Barrier-free health care initiative
The Rules follow upon the “Barrier-Free Health Care Initiative” of the U.S. Attorneys’ offices across that nation, which targeted ADA enforcement efforts on improving access to health-care services for individuals with disabilities.
Over the last decade, more than 80 settlements have been completed and published by the U.S. Attorney Program for ADA Enforcement. See United States Department of Justice Civil Rights Division, “ADA Enforcement, Cases: 2006 – June 2022, Settlements”, online: <https://archive.ada.gov/enforce_activities.htm#settlements>;.
Influence of the ADA in Canada
In Canada, there is only one reported claim of disability discrimination regarding access to diagnostic imaging. On Jan. 22, 2014, a British Columbia Human Rights Tribunal addressed a claim by a wheelchair user that the Vancouver Island Health Authority (Saanich Peninsula Hospital and Victoria General Hospital) had discriminated against her contrary to s. 8 of the Human Rights Code, RSBC 1996, c 210.
The discrimination is said to have concerned the taking of diagnostic images at hospitals operated by the respondent, Vancouver Island Health Authority (“VIHA”), when, on four separate occasions, the technician present at the time refused to lift her to place her on a table for the diagnostic process. On the fourth occasion, Charlene Froom’s mother assisted her and was seriously injured in the process. (Froom v. Vancouver Island Health Authority, 2014 BCHRT 23, at para 1.)
The claim originally named the hospitals and the union representing the employees at the hospitals. The Tribunal agreed with arguments from the union that membership in the union that represented the employees of the hospitals “does not serve to establish any relationship” between the union and the claimant.
There is no report of the resolution of the claim against the hospitals.
The absence of reported discrimination claims may be because health-care providers in Canada have been better informed of their duties under human rights legislation. However, it might instead be the result of a lack of knowledge on the part of those experiencing disability regarding the full extent of human rights protection in Canada.
If Attorney General Garland adopts the Rules and establishes Standards for Accessible Medical Diagnostic Equipment, it is a virtual certainty that both patients and providers in Canada will become aware of the Rules and consider the Rules to be the minimum standard for equal access to healthcare for individuals with disabilities.
The influence of U.S. law and practice is a consequence of the size of the diagnostic imaging devices market in the United States in comparison to the same market in Canada. According to Statista.com, the U.S. diagnostic imaging devices market in 2024 will be US$12.26 billion, while the market in Canada will be US$1.12 billion. The Canadian diagnostic imaging devices market is about eight per cent of that in the United States.
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.
