Basic Facts on Department of Justice Rule on Power-Driven Mobility Devices for Accessibility

On March 15, 2011, new Department of Justice rules took effect, specifying the “other power-driven mobility devices” (OPDMD) that could be used on trails by “individuals with mobility disabilities.” If you manage a trail that is open to the public this rule applies to your facility.

by Stuart Macdonald, Trail Consultant, American Trails

ATVs are only one kind of "other power-driven mobility device" that may potentially be used by Individuals with mobility disabilities on trails

On March 15, 2011 the Department of Justice (DOJ) revised rules went into effect allowing “other power-driven mobility devices” to be used by “individuals with mobility disabilities.”

This DOJ ruling applies to any place, indoors or outdoors, that is open to the public.

Under the American with Disabilities Act (ADA) Title II this DOJ rule applies to trails on State or local government lands. Also under the ADA Title III it applies to other “public accommodations” that would include trails open to the public on privately or commercially managed lands. Federal agency managed lands are not directly covered under the ADA, however this rule sets legal precedents the Federal agencies must watch. So the Federal agencies are also reviewing their policies, procedures, and the way in which trails on the land base they manage have been assessed.

What IS an "other power-driven mobility device?"

An “other power-driven mobility device” (OPDMD) is defined in the rules as: "any mobility device powered by batteries, fuel, or other engines— whether or not designed primarily for use by individuals with mobility disabilities— that is used by individuals with mobility disabilities for the purpose of locomotion, including golf cars, electronic personal assistance mobility devices (EPAMDs), such as the Segway® PT, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair within the meaning of this section. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

In short an other power-driven mobility device is anything with a motor that can be driven, regardless of size or horsepower, if it is driven by a person who has a mobility related disability.

What is NOT an "other power-driven mobility device?"

Any device that meets the following DOJ definition of a wheelchair is not an other power-driven mobility device and must be allowed to be used anywhere, with no exceptions.

A wheelchair is: a manually-operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor or of both indoor and outdoor locomotion. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

Despite the DOJ ADA rules, the U.S. Forest Service wheelchair definition, regulations and policies remain in place and continue to apply to all on the U.S. Forest Service managed lands.

Who is to be allowed to use the other power-driven mobility devices?

The DOJ rules say anyone who has a mobility disability. A person using an other power-driven mobility device may be asked to provide a “credible assurance” that the mobility device is required because of the person's disability. That credible assurance can be showing a valid, State-issued, disability parking placard or card, or other State-issued proof of disability, or if the person doesn’t have any of those with them, they may simply say that the other power-driven mobility device is being used for a mobility disability. A person may not be asked if they have a disability or anything about their disability.

Only 8 million people who have mobility limitations use wheelchairs, canes, crutches, etc. Close to 20 million people have a mobility related disability but don’t use wheelchairs, canes, and so forth. However, they still have mobility disabilities that limit the distance they can walk due to heart or breathing disorders, amputations, joint or muscle related disabilities, and the list goes on. Keep in mind that 85% of all disabilities aren’t obvious.

What do you need to do for your trail to be ready for March 15th when the DOJ rules on other power-driven mobility devices go into effect?

The DOJ rules requires an entity open to the public to make reasonable modifications in its policies, practices, or procedures to allow the use of other power-driven mobility devices by individuals with mobility disabilities, UNLESS: that entity can document that it has completed an assessment of the facility, trail, route or area, before the person requesting use of the device arrived onsite, and the entity found that class of other power-driven mobility device could not be used in that location due to one or more of the following DOJ assessment factors:

DOJ Assessment Factors:

(a) “The type, size, weight, dimensions, and speed of the device;

(b) The volume of pedestrian traffic (which may vary at different times of the day, week, month, or year);

(c) The design and operational characteristics (e.g., whether its service, program, or activity is conducted indoors, its square footage, the density and placement of stationary devices, and the availability of storage for the device, if requested by the user);

(d) Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility; and

(e) Whether the use of the other power-driven mobility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations.”

If one of those issues prevents the use of a specific calls of other power-driven mobility device

Those are the only factors a public entity is to use in determining whether a particular class of other power-driven mobility device may be allowed in a specific location.

Policies and public notice:

DOJ rule states: “A public entity that has determined that reasonable modifications can be made in its policies, practices, or procedures to allow the use of other power-driven mobility devices should develop a policy that clearly states the circumstances under which the use of other power-driven mobility devices by individuals with a mobility disability will be permitted. It also should include clear, concise statements of specific rules governing the operation of such devices. Finally, the public entity should endeavor to provide individuals with disabilities who use other power-driven mobility devices with advanced notice of its policy regarding the use of such devices and what rules apply to the operation of these devices.”

The DOJ rules regarding other power-driven mobility devices, are a portion of the revisions to the ADA Title II and Title III finalized by DOJ on 9/15/2010.

We wish to thank Janet Zeller, U.S. Forest Service National Accessibility Program Manager, ([email protected]) for providing this information on the new DOJ rule.

Attached document published March 2011

About the Author

Stuart Macdonald spent 19 years as Colorado's State Trails Coordinator. He is the editor of American Trails Magazine. During 1998-99, he represented State Trail Administrators on the national committee that proposed regulations for accessible trails. He chaired the National Recreational Trails Committee, which advised the Federal Highway Administration in the first years of the Recreational Trails Program. Stuart grew up in San Diego and his main outdoor interest besides trails is surfing. He has a BA in English from San Francisco State and a Masters in Landscape Architecture from Utah State.

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