By Minh N. Vu
Seyfarth synopsis: The Spring 2022 Unified Regulatory Agenda is out with rulemakings on medical equipment, EV charging stations and fixed self-service transaction machines on the list of items to be addressed.
We predicted that there would be more regulatory activity in the ADA Title III universe under the Biden Administration and the Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions (the “Agenda”) confirms our forecast. However, the Agenda does not include any proposed rulemaking concerning website or mobile app accessibility, an area where businesses continue to be barraged with private lawsuits in the absence of regulations.
Medical Diagnostic Equipment. Back in 2017, the U.S. Access Board — the federal agency tasked under Title III of the ADA with drafting accessibility guidelines which must then be adopted by the Department of Justice (DOJ) before they become law — issued a final guidance containing standards for accessible medical diagnostic equipment. The Agenda states that the DOJ will be issuing an Advanced Notice of Proposed Rulemaking (ANPRM) about these guidelines in September 2022 with a public comment period to close in November 2022. The Agenda previews that “[a]mong the public input that the Department is seeking in this ANPRM is whether there are any issues relating to the potential adoption of the . . . [Access Board’s] Standards for Medical Diagnostic Equipment in the ADA regulation.” Manufacturers of medical diagnostic equipment, as well as health care facilities that purchase and use such equipment, should actively participate in the ANPRM process.
EV Charging Stations. According to the Agenda, the Access Board will be issuing a Notice of Proposed Rulemaking (NPRM) in September 2022 to set standards for accessible EV charging stations with the intent that the DOJ will eventually incorporate those guidelines in the current ADA Standards for Accessible Design. The rulemaking responds to the Infrastructure Investment and Jobs Act’s allocation of $7.5 billion to construct a national network of 500,000 EV charging stations nationwide.
Fixed Self-service Transaction Machines. With the proliferation of self-service machines at public accommodations in the past few years, it is no surprise that the Access Board will be working on standards for accessible self-service kiosks, information transaction machines, and point-of-sale devices. The Agenda states that an ANPRM will be issued in August 2022. It is very important for manufacturers of these machines, as well as the businesses that use them (e.g. retailers, rental car companies, lodging facilities, health care providers, banks, parking facilities, restaurants) to file comments on the Access Board’s forthcoming proposed guidelines because, once finalized, they are not likely to change in DOJ’s rulemaking process to make them enforceable standards.
While the rulemaking process can take years, we predict the DOJ will work hard to get all of these new standards finalized before the end of the Biden Administration because a regime change will most certainly halt all regulatory activity, yet again.
Edited by John W. Egan