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Text relating to Department of Justice rule on "Wheelchairs and Other Power-Driven Mobility Devices," from Part II Department of Justice 28 CFR Parts 35 and 36 Nondiscrimination on the Basis of Disability in State and Local Government Services; Final Rules.

ARROW See QUESTIONS and ANSWERS on DOJ rule for use of power-driven mobility devices

ARROW Analysis of state and local OPDMD regulations and policies


DOJ text on "other power-driven mobility devices" from Federal Register

From the Federal Register: Vol. 75, No. 178, September 15, 2010 - Rules and Regulations (pages 56164 - 56236)

Part II - Department of Justice - 28 CFR Parts 35 and 36 Nondiscrimination on the Basis of Disability in State and Local Government Services; Final Rules

arrow This final rule revises the regulation that implements title II of the Americans with Disabilities Act (ADA), relating to nondiscrimination on the basis of disability in State and local government services. The following excerpts includes a section-by-section analysis of the rule and responses to public comments on the proposed rules relating to ‘Other Power-Driven Mobility Devices and ‘‘Wheelchairs.

 

PART 35— Subpart A—General

Section 35.104 Definitions.

‘‘Other Power-Driven Mobility Device’’ and ‘‘Wheelchair’’
Because relatively few individuals with disabilities were using nontraditional mobility devices in 1991, there was no pressing need for the 1991 title II regulation to define the terms ‘‘wheelchair’’ or ‘‘other power-driven mobility device,’’ to expound on what would constitute a reasonable modification in policies, practices, or procedures under § 35.130(b)(7), or to set forth within that section specific requirements for the accommodation of mobility devices. Since the issuance of the 1991 title II regulation, however, the choices of mobility devices available to individuals with disabilities have increased dramatically. The Department has received complaints about and has become aware of situations where individuals with mobility disabilities have utilized devices that are not designed primarily for use by an individual with a mobility disability, including the Segway ® Personal Transporter (Segway ® PT), golf cars, all-terrain vehicles (ATVs), and other locomotion devices.

The Department also has received questions from public entities and individuals with mobility disabilities concerning which mobility devices must be accommodated and under what circumstances. Indeed, there has been litigation concerning the legal obligations of covered entities to accommodate individuals with mobility disabilities who wish to use an electronic personal assistance mobility device (EPAMD), such as the Segway ® PT, as a mobility device. The Department has participated in such litigation as amicus curiae. See Ault v. Walt Disney World Co., No. 6:07–cv–1785–Orl–31KRS, 2009 WL 3242028 (M.D. Fla. Oct. 6, 2009). Much of the litigation has involved shopping malls where businesses have refused to allow persons with disabilities to use EPAMDs. See, e.g., McElroy v. Simon Property Group, No. 08– 404 RDR, 2008 WL 4277716 (D. Kan. Sept. 15, 2008) (enjoining mall from prohibiting the use of a Segway ® PT as a mobility device where an individual agrees to all of a mall’s policies for use of the device, except indemnification); Shasta Clark, Local Man Fighting Mall Over Right to Use Segway, WATE 6 News, July 26, 2005, available at http://www.wate.com/Global/story.asp?s=3643674 (last visited June 24, 2010).

In response to questions and complaints from individuals with disabilities and covered entities concerning which mobility devices must be accommodated and under what circumstances, the Department began developing a framework to address the use of unique mobility devices, concerns about their safety, and the parameters for the circumstances under which these devices must be accommodated. As a result, the Department’s NPRM proposed two new approaches to mobility devices. First, the Department proposed a two-tiered mobility device definition that defined the term ‘‘wheelchair’’ separately from ‘‘other power- driven mobility device.’’ Second, the Department proposed requirements to allow the use of devices in each definitional category. In § 35.137(a), the NPRM proposed that wheelchairs and manually-powered mobility aids used by individuals with mobility disabilities shall be permitted in any areas open to pedestrian use. Section 35.137(b) of the NPRM provided that a public entity ‘‘shall make reasonable modifications in its policies, practices, and procedures to permit the use of other power-driven mobility devices by individuals with disabilities, unless the public entity can demonstrate that the use of the device is not reasonable or that its use will result in a fundamental alteration of the public entity’s service, program, or activity.’’ 73 FR 34466, 34504 (June 17, 2008).

The Department sought public comment with regard to whether these steps would, in fact, achieve clarity on these issues. Toward this end, the Department’s NPRM asked several questions relating to the definitions of ‘‘wheelchair,’’ ‘‘other power-driven mobility device,’’ and ‘‘manually-powered mobility aids’’; the best way to categorize different classes of mobility devices; the types of devices that should be included in each category; and the circumstances under which certain mobility devices must be accommodated or may be excluded pursuant to the policy adopted by the public entity.

Because the questions in the NPRM that concerned mobility devices and their accommodation were interrelated, many of the commenters’ responses did not identify the specific question to which they were responding. Instead, the commenters grouped the questions together and provided comments accordingly. Most commenters spoke to the issues addressed in the Department’s questions in broad terms and general concepts. As a result, the responses to the questions posed are discussed below
in broadly grouped issue categories rather than on a question-by-question basis.

Two-tiered definitional approach.
Commenters supported the Department’s proposal to use a two-tiered definition of mobility device. Commenters nearly universally said that wheelchairs always should be accommodated and that they should never be subject to an assessment with regard to their admission to a particular public facility. In contrast, the vast majority of commenters indicated they were in favor of allowing public entities to conduct an assessment as to whether, and under which circumstances, other power-driven mobility devices would be allowed on-site.

Many commenters indicated their support for the two-tiered approach in responding to questions concerning the definition of ‘‘wheelchair’’ and ‘‘other-powered mobility device.’’ Nearly every disability advocacy group said that the Department’s two-tiered approach strikes the proper balance between ensuring access for individuals with disabilities and addressing fundamental alteration and safety concerns held by public entities; however, a minority of disability advocacy groups wanted other power-driven mobility devices to be included in the definition of ‘‘wheelchair.’’ Most advocacy, nonprofit, and individual commenters supported the concept of a separate definition for ‘‘other power-driven mobility device’’ because it maintains existing legal protections for wheelchairs while recognizing that some devices that are not designed primarily for individuals with mobility disabilities have beneficial uses for individuals with mobility disabilities. They also favored this concept because it recognizes technological developments and that the innovative uses of varying devices may provide increased access to individuals with mobility disabilities.

Many environmental, transit system, and government commenters indicated they opposed in its entirety the concept of ‘‘other power-driven mobility devices’’ as a separate category. They believe that the creation of a second category of mobility devices will mean that other power-driven mobility devices, specifically ATVs and off-highway vehicles, must be allowed to go anywhere on national park lands, trails, recreational areas, etc.; will conflict with other Federal land management laws and regulations; will harm the environment and natural and cultural resources; will pose safety risks to users of these devices, as well as to pedestrians not expecting to encounter motorized devices in these settings; will interfere with the recreational enjoyment of these areas; and will require too much administrative work to regulate which devices are allowed and under which circumstances. These commenters all advocated a single category of mobility devices that excludes all fuel- powered devices.

Whether or not they were opposed to the two-tier approach in its entirety, virtually every environmental commenter and most government commenters associated with providing public transportation services or protecting land, natural resources, fish and game, etc., said that the definition of ‘‘other power-driven mobility device’’ is too broad. They suggested that they might be able to support the dual category approach if the definition of ‘‘other power-driven mobility device’’ were narrowed. They expressed general and program-specific concerns about permitting the use of other power-driven mobility devices. They noted the same concerns as those who opposed the two- tiered concept—that these devices create a host of environmental, safety, cost, administrative and conflict of law issues. Virtually all of these commenters indicated that their support for the dual approach and the concept of other power-driven mobility devices is, in large measure, due to the other power-driven mobility device assessment factors in § 35.137(c) of the NPRM.

By maintaining the two-tiered approach to mobility devices and defining ‘‘wheelchair’’ separately from ‘‘other power-driven mobility device,’’ the Department is able to preserve the protection users of traditional wheelchairs and other manually powered mobility aids have had since the ADA was enacted, while also recognizing that human ingenuity, personal choice, and new technologies have led to the use of devices that may be more beneficial for individuals with certain mobility disabilities.

Moreover, the Department believes the two-tiered approach gives public entities guidance to follow in assessing whether reasonable modifications can be made to permit the use of other power-driven mobility devices on-site and to aid in the development of policies describing the circumstances under which persons with disabilities may use such devices. The two- tiered approach neither mandates that all other power-driven mobility devices be accommodated in every circumstance, nor excludes these devices. This approach, in conjunction with the factor assessment provisions in § 35.137(b)(2), will serve as a mechanism by which public entities can evaluate their ability to accommodate other power-driven mobility devices. As will be discussed in more detail below, the assessment factors in § 35.137(b)(2) are designed to provide guidance to public entities regarding whether it is appropriate to bar the use of a specific ‘‘other power-driven mobility device in a specific facility. In making such a determination, a public entity must consider the device’s type, size, weight, dimensions, and speed; the facility’s volume of pedestrian traffic; the facility’s design and operational characteristics; whether the device conflicts with legitimate safety requirements; and whether the device poses a substantial risk of serious harm to the immediate environment or natural or cultural resources, or conflicts with Federal land management laws or regulations. In addition, if under § 35.130(b)(7), the public entity claims that it cannot make reasonable modifications to its policies, practices, or procedures to permit the use of other power- driven mobility devices by individuals with disabilities, the burden of proof to demonstrate that such devices cannot be operated in accordance with legitimate safety requirements rests upon the public entity.

Categorization of wheelchair versus other power-driven mobility devices.
Implicit in the creation of the two-tiered mobility device concept is the question of how to categorize which devices are wheelchairs and which are other power-driven mobility devices. Finding weight and size to be too restrictive, the vast majority of advocacy, nonprofit, and individual commenters opposed using the Department of Transportation’s definition of ‘‘common wheelchair’’ to designate the mobility device’s appropriate category. Commenters who generally supported using weight and size as the method of categorization did so because of their concerns about potentially detrimental impacts on the environment and cultural and natural resources; on the enjoyment of the facility by other recreational users, as well as their safety; on the administrative components of government agencies required to assess which devices are appropriate on narrow, steeply sloped, or foot-and-hoof only trails; and about the impracticality of accommodating such devices in public transportation settings.

Many environmental, transit system, and government commenters also favored using the device’s intended-use to categorize which devices constitute wheelchairs and which are other power-driven mobility devices. Furthermore, the intended-use determinant received a fair amount of support from advocacy, nonprofit, and individual commenters, either because they sought to preserve the broad accommodation of wheelchairs or because they sympathized with concerns about individuals without mobility disabilities fraudulently bringing other power-driven mobility devices into public facilities.

Commenters seeking to have the Segway® PT included in the definition of ‘‘wheelchair’’ objected to classifying mobility devices on the basis of their intended use because they felt that such a classification would be unfair and prejudicial to Segway® PT users and would stifle personal choice, creativity, and innovation. Other advocacy and nonprofit commenters objected to employing an intended-use approach because of concerns that the focus would shift to an assessment of the device, rather than the needs or benefits to the individual with the mobility disability. They were of the view that the mobility-device classification should be based on its function—whether it is used for a mobility disability. A few commenters raised the concern that an intended-use approach might embolden public entities to assess whether an individual with a mobility disability really needs to use the other power-driven mobility device at issue or to question why a wheelchair would not provide sufficient mobility. Those citing objections to the intended use determinant indicated it would be more appropriate to make the categorization determination based on whether the device is being used for a mobility disability in the context of the impact of its use in a specific environment. Some of these commenters preferred this approach because it would allow the Segway® PT to be included in the definition of ‘‘wheelchair.’’

Many environmental and government commenters were inclined to categorize mobility devices by the way in which they are powered, such as battery-powered engines versus fuel or combustion engines. One commenter suggested using exhaust level as the determinant. Although there were only a few commenters who would make the determination based on indoor or outdoor use, there was nearly universal support for banning the indoor use of devices that are powered by fuel or combustion engines.

A few commenters thought it would be appropriate to categorize the devices based on their maximum speed. Others objected to this approach, stating that circumstances should dictate the appropriate speed at which mobility devices should be operated— for example, a faster speed may be safer when crossing streets than it would be for sidewalk use—and merely because a device can go a certain speed does not mean it will be operated at that speed.

The Department has decided to maintain the device’s intended use as the appropriate determinant for which devices are categorized as ‘‘wheelchairs.’’ However, because wheelchairs may be intended for use by individuals who have temporary conditions affecting mobility, the Department has decided that it is more appropriate to use the phrase ‘‘primarily designed’’ rather than ‘‘solely designed’’ in making such categorizations. The Department will not foreclose any future technological developments by identifying or banning specific devices or setting restrictions on size, weight, or dimensions. Moreover, devices designed primarily for use by individuals with mobility disabilities often are considered to be medical devices and are generally eligible for insurance reimbursement on this basis. Finally, devices designed primarily for use by individuals with mobility disabilities are less subject to fraud concerns because they were not designed to have a recreational component. Consequently, rarely, if ever, is any inquiry or assessment as to their appropriateness for use in a public entity necessary.

Definition of ‘‘wheelchair.’’
In seeking public feedback on the NPRM’s definition of ‘‘wheelchair,’’ the Department explained its concern that the definition of ‘‘wheelchair’’ in section 508(c)(2) of the ADA (formerly section 507(c)(2), July 26, 1990, 104 Stat. 372, 42 U.S.C. 12207, renumbered section 508(c)(2), Public Law 110–325 section 6(a)(2), Sept. 25, 2008, 122 Stat. 3558), which pertains to Federal wilderness areas, is not specific enough to provide clear guidance in the array of settings covered by title II and that the stringent size and weight requirements for the Department of Transportation’s definition of ‘‘common wheelchair’’ are not a good fit in the context of most public entities. The Department noted in the NPRM that it sought a definition of ‘‘wheelchair’’ that would include manually-operated and power-driven wheelchairs and mobility scooters (i.e., those that typically are single-user, have three to four wheels, and are appropriate for both indoor and outdoor pedestrian areas), as well as a variety of types of wheelchairs and mobility scooters with individualized or unique features or models with different numbers of wheels. The NPRM defined a wheelchair as ‘‘a device designed solely for use by an individual with a mobility impairment for the primary purpose of locomotion in typical indoor and outdoor pedestrian areas. A wheelchair may be manually-operated or power-driven.’’ 73 FR 34466, 34479 (June 17, 2008). Although the NPRM’s definition of ‘‘wheelchair’’ excluded mobility devices that are not designed solely for use by individuals with mobility disabilities, the Department, noting that the use of the Segway® PT by individuals with mobility disabilities is on the upswing, inquired as to whether this device should be included in the definition of ‘‘wheelchair.’’

Many environment and Federal government employee commenters objected to the Department’s proposed definition of ‘‘wheelchair’’ because it differed from the definition of ‘‘wheelchair’’ found in section 508(c)(2) of the ADA—a definition used in the statute only in connection with a provision relating to the use of a wheelchair in a designated wilderness area. See 42 U.S.C. 12207(c)(1). Other government commenters associated with environmental issues wanted the phrase ‘‘outdoor pedestrian use’’ eliminated from the definition of ‘‘wheelchair.’’ Some transit system commenters wanted size, weight, and dimensions to be part of the definition because of concerns about costs associated with having to accommodate devices that exceed the dimensions of the ‘‘common wheelchair’’ upon which the 2004 ADAAG was based.

Many advocacy, nonprofit, and individual commenters indicated that as long as the Department intends the scope of the term ‘‘mobility impairments’’ to include other disabilities that cause mobility impairments (e.g., respiratory, circulatory, stamina, etc.), they were in support of the language. Several commenters indicated a preference for the definition of ‘‘wheelchair’’ in section 508(c)(2) of the ADA. One commenter indicated a preference for the term ‘‘assistive device,’’ as it is defined in the Rehabilitation Act of 1973, over the term ‘‘wheelchair.’’ A few commenters indicated that strollers should be added to the preamble’s list of examples of wheelchairs because parents of children with disabilities frequently use strollers as mobility devices until their children get older.

In the final rule, the Department has rearranged some wording and has made some changes in the terminology used in the definition of ‘‘wheelchair,’’ but essentially has retained the definition, and therefore the rationale, that was set forth in the NPRM. Again, the text of the ADA makes the definition of ‘‘wheelchair’’ contained in section 508(c)(2) applicable only to the specific context of uses in designated wilderness areas, and therefore does not compel the use of that definition for any other purpose. Moreover, the Department maintains that limiting the definition to devices suitable for use in an ‘‘indoor pedestrian area’’ as provided for in section 508(c)(2) of the ADA, would ignore the technological advances in wheelchair design that have occurred since the ADA went into effect and that the inclusion of the phrase ‘‘indoor pedestrian area’’ in the definition of ‘‘wheelchair’’ would set back progress made by individuals with mobility disabilities who, for many years now, have been using devices designed for locomotion in indoor and outdoor settings. The Department has concluded that same rationale applies to placing limits on the size, weight, and dimensions of wheelchairs.

With regard to the term ‘‘mobility impairments,’’ the Department intended a broad reading so that a wide range of disabilities, including circulatory and respiratory disabilities, that make walking difficult or impossible, would be included. In response to comments on this issue, the Department has revisited the issue and has concluded that the most apt term to achieve this intent is ‘‘mobility disability.’’

In addition, the Department has decided that it is more appropriate to use the phrase ‘‘primarily’’ designed for use by individuals with disabilities in the final rule, rather than ‘‘solely’’ designed for use by individuals with disabilities—the phrase proposed in the NPRM. The Department believes that this phrase more accurately covers the range of devices the Department intends to fall within the definition of ‘‘wheelchair.’’

After receiving comments that the word ‘‘typical’’ is vague and the phrase ‘‘pedestrian areas’’ is confusing to apply, particularly in the context of similar, but not identical, terms used in the proposed Standards, the Department decided to delete the term ‘‘typical indoor and outdoor pedestrian areas’’ from the final rule. Instead, the final rule references ‘‘indoor or of both indoor and outdoor locomotion,’’ to make clear that the devices that fall within the definition of ‘‘wheelchair’’ are those that are used for locomotion on indoor and outdoor pedestrian paths or routes and not those that are intended exclusively for traversing undefined, unprepared, or unimproved paths or routes. Thus, the final rule defines the term ‘‘wheelchair’’ to mean ‘‘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.’’

Whether the definition of ‘‘wheelchair’’ includes the Segway® PT.
As discussed above, because individuals with mobility disabilities are using the Segway® PT as a mobility device, the Department asked whether it should be included in the definition of ‘‘wheelchair.’’ The basic Segway® PT model is a two-wheeled, gyroscopically-stabilized, battery-powered personal transportation device. The user stands on a platform suspended three inches off the ground by wheels on each side, grasps a T-shaped handle, and steers the device similarly to a bicycle. Most Segway® PTs can travel up to 121⁄2 miles per hour, compared to the average pedestrian walking speed of three to four miles per hour and the approximate maximum speed for power- operated wheelchairs of six miles per hour. In a study of trail and other non-motorized transportation users including EPAMDs, the Federal Highway Administration (FHWA) found that the eye height of individuals using EPAMDs ranged from approximately 69 to 80 inches. See Federal Highway Administration, Characteristics of Emerging Road and Trail Users and Their Safety (Oct. 14, 2004), available at http://atfiles.org/files/pdf/road-trail-user-safety.pdf (last visited June 24, 2010). Thus, the Segway® PT can operate at much greater speeds than wheelchairs, and the average user stands much taller than most wheelchair users.

The Segway® PT has been the subject of debate among users, pedestrians, disability advocates, State and local governments, businesses, and bicyclists. The fact that the Segway® PT is not designed primarily for use by individuals with disabilities, nor used primarily by persons with disabilities, complicates the question of to what extent individuals with disabilities should be allowed to operate them in areas and facilities where other power-driven mobility devices are not allowed. Those who question the use of the Segway® PT in pedestrian areas argue that the speed, size, and operating features of the devices make them too dangerous to operate alongside pedestrians and wheelchair users.

Comments regarding whether to include the Segway® PT in the definition of ‘‘wheelchair’’ were, by far, the most numerous received in the category of comments regarding wheelchairs and other power- driven mobility devices. Significant numbers of veterans with disabilities, individuals with multiple sclerosis, and those advocating on their behalf made concise statements of general support for the inclusion of the Segway® PT in the definition of ‘‘wheelchair.’’ Two veterans offered extensive comments on the topic, along with a few advocacy and nonprofit groups and individuals with disabilities for whom sitting is uncomfortable or impossible.

While there may be legitimate safety issues for EPAMD users and bystanders in some circumstances, EPAMDs and other non- traditional mobility devices can deliver real benefits to individuals with disabilities. Among the reasons given by commenters to include the Segway® PT in the definition of ‘‘wheelchair’’ were that the Segway® PT is well-suited for individuals with particular conditions that affect mobility including multiple sclerosis, Parkinson’s disease, chronic obstructive pulmonary disease, amputations, spinal cord injuries, and other neurological disabilities, as well as functional limitations, such as gait limitation, inability to sit or discomfort in sitting, and diminished stamina issues. Such individuals often find that EPAMDs are more comfortable and easier to use than more traditional mobility devices and assist with balance, circulation, and digestion in ways that wheelchairs do not. See Rachel Metz, Disabled Embrace Segway, New York Times, Oct. 14, 2004. Commenters specifically cited pressure relief, reduced spasticity, increased stamina, and improved respiratory, neurologic, and muscular health as secondary medical benefits from being able to stand.

Other arguments for including the Segway® PT in the definition of ‘‘wheelchair’’ were based on commenters’ views that the Segway® PT offers benefits not provided by wheelchairs and mobility scooters, including its intuitive response to body movement, ability to operate with less coordination and dexterity than is required for many wheelchairs and mobility scooters, and smaller footprint and turning radius as compared to most wheelchairs and mobility scooters. Several commenters mentioned improved visibility, either due to the Segway® PT’s raised platform or simply by virtue of being in a standing position. And finally, some commenters advocated for the inclusion of the Segway® PT simply based on civil rights arguments and the empowerment and self-esteem obtained from having the power to select the mobility device of choice.

Many commenters, regardless of their position on whether to include the Segway® PT in the definition of ‘‘wheelchair,’’ noted that the Segway® PT’s safety record is as good as, if not better, than the record for wheelchairs and mobility scooters.

Most environmental, transit system, and government commenters were opposed to including the Segway® PT in the definition of ‘‘wheelchair’’ but were supportive of its inclusion as an ‘‘other power-driven mobility device.’’ Their concerns about including the Segway® PT in the definition of ‘‘wheelchair’’ had to do with the safety of the operators of these devices (e.g., height clearances on trains and sloping trails in parks) and of pedestrians, particularly in confined and crowded facilities or in settings where motorized devices might be unexpected; the potential harm to the environment; the additional administrative, insurance, liability, and defensive litigation costs; potentially detrimental impacts on the environment and cultural and natural resources; and the impracticality of accommodating such devices in public transportation settings.

Other environmental, transit system, and government commenters would have banned all fuel-powered devices as mobility devices. In addition, these commenters would have classified non-motorized devices as ‘‘wheelchairs’’ and would have categorized motorized devices, such as the Segway® PT, battery-operated wheelchairs, and mobility scooters as ‘‘other power-driven mobility devices.’’ In support of this position, some of these commenters argued that because their equipment and facilities have been designed to comply with the dimensions of the ‘‘common wheelchair’’ upon which the ADAAG is based, any device that is larger than the prototype wheelchair would be misplaced in the definition of ‘‘wheelchair.’’

Still others in this group of commenters wished for only a single category of mobility devices and would have included wheelchairs, mobility scooters, and the Segway® PT as ‘‘mobility devices’’ and excluded fuel-powered devices from that definition.
Many disability advocacy and nonprofit commenters did not support the inclusion of the Segway® PT in the definition of ‘‘wheelchair.’’ Paramount to these commenters was the maintenance of existing protections for wheelchair users. Because there was unanimous agreement that wheelchair use rarely, if ever, may be restricted, these commenters strongly favored categorizing wheelchairs separately from the Segway® PT and other power-driven mobility devices and applying the intended-use determinant to assign the devices to either category. They indicated that while they support the greatest degree of access in public entities for all persons with disabilities who require the use of mobility devices, they recognize that under certain circumstances, allowing the use of other power-driven mobility devices would result in a fundamental alteration of programs, services, or activities, or run counter to legitimate safety requirements necessary for the safe operation of a public entity. While these groups supported categorizing the Segway® PT as an ‘‘other power-driven mobility device,’’ they universally noted that in their view, because the Segway® PT does not present environmental concerns and is as safe to use as, if not safer than, a wheelchair, it should be accommodated in most circumstances.

The Department has considered all the comments and has concluded that it should not include the Segway® PT in the definition of ‘‘wheelchair.’’ The final rule provides that the test for categorizing a device as a wheelchair or an other power-driven mobility device is whether the device is designed primarily for use by individuals with mobility disabilities. Mobility scooters are included in the definition of ‘‘wheelchair’’ because they are designed primarily for users with mobility disabilities. However, because the current generation of EPAMDs, including the Segway® PT, was designed for recreational users and not primarily for use by individuals with mobility disabilities, the Department has decided to continue its approach of excluding EPAMDs from the definition of ‘‘wheelchair’’ and including them in the definition of ‘‘other power-driven mobility device.’’ Although EPAMDs, such as the Segway® PT, are not included in the definition of a ‘‘wheelchair,’’ public entities must assess whether they can make reasonable modifications to permit individuals with mobility disabilities to use such devices on their premises. The Department recognizes that the Segway® PT provides many benefits to those who use them as mobility devices, including a measure of privacy with regard to the nature of one’s particular disability, and believes that in the vast majority of circumstances, the application of the factors described in § 35.137 for providing access to other- powered mobility devices will result in the admission of the Segway® PT.

Treatment of ‘‘manually-powered mobility aids.’
The Department’s NPRM did not define the term ‘‘manually-powered mobility aids.’’ Instead, the NPRM included a non-exhaustive list of examples in § 35.137(a). The NPRM queried whether the Department should maintain this approach to manually-powered mobility aids or whether it should adopt a more formal definition.

Only a few commenters addressed ‘‘manually-powered mobility aids.’’ Virtually all commenters were in favor of maintaining a non-exhaustive list of examples of ‘‘manually-powered mobility aids’’ rather than adopting a definition of the term. Of those who commented, a few sought clarification of the term ‘‘manually-powered.’’ One commenter suggested that the term be changed to ‘‘human-powered.’’ Other commenters requested that the Department include ordinary strollers in the non- exhaustive list of ‘‘manually-powered mobility aids.’’ Since strollers are not devices designed primarily for individuals with mobility disabilities, the Department does not consider them to be manually-powered mobility aids; however, strollers used in the context of transporting individuals with disabilities are subject to the same assessment required by the ADA’s title II reasonable modification standards at § 35.130(b)(7). The Department believes that because the existing approach is clear and understood easily by the public, no formal definition of the term ‘‘manually-powered mobility aids’’ is required.

Definition of ‘‘other power-driven mobility device.’’
The Department’s NPRM defined the term ‘‘other power-driven mobility device’’ in § 35.104 as ‘‘any of a large range of devices powered by batteries, fuel, or other engines— whether or not designed solely for use by individuals with mobility impairments—that are used by individuals with mobility impairments for the purpose of locomotion, including golf cars, bicycles, electronic personal assistance mobility devices (EPAMDs), or any mobility aid designed to operate in areas without defined pedestrian routes.’’ 73 FR 34466, 34504 (June 17, 2008).

Nearly all environmental, transit systems, and government commenters who supported the two-tiered concept of mobility devices said that the Department’s definition of ‘‘other power-driven mobility device’’ is overbroad because it includes fuel-powered devices. These commenters sought a ban on fuel-powered devices in their entirety because they believe they are inherently dangerous and pose environmental and safety concerns. They also argued that permitting the use of many of the contemplated other power-driven mobility devices, fuel-powered ones especially, would fundamentally alter the programs, services, or activities of public entities.

Advocacy, nonprofit, and several individual commenters supported the definition of ‘‘other power-driven mobility device’’ because it allows new technologies to be added in the future, maintains the existing legal protections for wheelchairs, and recognizes that some devices, particularly the Segway® PT, which are not designed primarily for individuals with mobility disabilities, have beneficial uses for individuals with mobility disabilities. Despite support for the definition of ‘‘other power-driven mobility device,’’ however, most advocacy and nonprofit commenters expressed at least some hesitation about the inclusion of fuel-powered mobility devices in the definition. While virtually all of these commenters noted that a blanket exclusion of any device that falls under the definition of ‘‘other power-driven mobility device’’ would violate basic civil rights concepts, they also specifically stated that certain devices, particularly, off-highway vehicles, cannot be permitted in certain circumstances. They also made a distinction between the Segway® PT and other power-driven mobility devices, noting that the Segway® PT should be accommodated in most circumstances because it satisfies the safety and environmental elements of the policy analysis. These commenters indicated that they agree that other power-driven mobility devices must be assessed, particularly as to their environmental impact, before they are accommodated.

Although many commenters had reservations about the inclusion of fuel- powered devices in the definition of other power-driven mobility devices, the Department does not want the definition to be so narrow that it would foreclose the inclusion of new technological developments (whether powered by fuel or by some other means). It is for this reason that the Department has maintained the phrase ‘‘any mobility device designed to operate in areas without defined pedestrian routes’’ in the final rule’s definition of other power-driven mobility devices. The Department believes that the limitations provided by ‘‘fundamental alteration’’ and the ability to impose legitimate safety requirements will likely prevent the use of fuel and combustion engine-driven devices indoors, as well as in outdoor areas with heavy pedestrian traffic. The Department notes, however, that in the future, technological developments may result in the production of safe fuel-powered mobility devices that do not pose environmental and safety concerns. The final rule allows consideration to be given as to whether the use of a fuel-powered device would create a substantial risk of serious harm to the environment or natural or cultural resources, and to whether the use of such a device conflicts with Federal land management laws or regulations; this aspect of the final rule will further limit the inclusion of fuel-powered devices where they are not appropriate. Consequently, the Department has maintained fuel-powered devices in the definition of ‘‘other power- driven mobility device.’’ The Department has also added language to the definition of ‘‘other power-driven mobility device’’ to reiterate that the definition does not apply to Federal wilderness areas, which are not covered by title II of the ADA; the use of wheelchairs in such areas is governed by section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

Section 35.137 Mobility devices.

Section 35.137 of the NPRM clarified the scope and circumstances under which covered entities are legally obligated to accommodate various ‘‘mobility devices.’’ Section 35.137 set forth specific requirements for the accommodation of ‘‘mobility devices,’’ including wheelchairs, manually-powered mobility aids, and other power-driven mobility devices.

In both the NPRM and the final rule, § 35.137(a) states the general rule that in any areas open to pedestrians, public entities shall permit individuals with mobility disabilities to use wheelchairs and manually- powered mobility aids, including walkers, crutches, canes, braces, or similar devices. Because mobility scooters satisfy the definition of ‘‘wheelchair’’ (i.e., ‘‘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’’), the reference to them in § 35.137(a) of the final rule has been omitted to avoid redundancy.

Some commenters expressed concern that permitting the use of other power-driven mobility devices by individuals with mobility disabilities would make such devices akin to wheelchairs and would require them to make physical changes to their facilities to accommodate their use. This concern is misplaced. If a facility complies with the applicable design requirements in the 1991 Standards or the 2010 Standards, the public entity will not be required to exceed those standards to accommodate the use of wheelchairs or other power-driven mobility devices that exceed those requirements.

Legal standard for other power-driven mobility devices.
The NPRM version of § 35.137(b) provided that ‘‘[a] public entity shall make reasonable modifications in its policies, practices, and procedures to permit the use of other power-driven mobility devices by individuals with disabilities, unless the public entity can demonstrate that the use of the device is not reasonable or that its use will result in a fundamental alteration in the public entity’s service, program, or activity.’’ 73 FR 34466, 34505 (June 17, 2008). In other words, public entities are by default required to permit the use of other power- driven mobility devices; the burden is on them to prove the existence of a valid exception.

Most commenters supported the notion of assessing whether the use of a particular device is reasonable in the context of a particular venue. Commenters, however, disagreed about the meaning of the word ‘‘reasonable’’ as it is used in § 35.137(b) of the NPRM. Advocacy and nonprofit groups almost universally objected to the use of a general reasonableness standard with regard to the assessment of whether a particular device should be allowed at a particular venue. They argued that the assessment should be based on whether reasonable modifications could be made to allow a particular device at a particular venue, and that the only factors that should be part of the calculus that results in the exclusion of a particular device are undue burden, direct threat, and fundamental alteration.

A few commenters opposed the proposed provision requiring public entities to assess whether reasonable modifications can be made to allow other power-driven mobility devices, preferring instead that the Department issue guidance materials so that public entities would not have to incur the cost of such analyses. Another commenter noted a ‘‘fox guarding the hen house’’-type of concern with regard to public entities developing and enforcing their own modification policy.

In response to comments received, the Department has revised § 35.137(b) to provide greater clarity regarding the development of legitimate safety requirements regarding other power-driven mobility devices and has added a new § 35.130(h) (Safety) to the title II regulation which specifically permits public entities to impose legitimate safety requirements necessary for the safe operation of their services, programs, and activities. (See discussion below.) The Department has not retained the proposed NPRM language stating that an other power-driven mobility device can be excluded if a public entity can demonstrate that its use is unreasonable or will result in a fundamental alteration of the entity’s service, program, or activity, because the Department believes that this exception is covered by the general reasonable modification requirement contained in § 35.130(b)(7).

Assessment factors.
Section 35.137(c) of the NPRM required public entities to ‘‘establish policies to permit the use of other power-driven mobility devices’’ and articulated four factors upon which public entities must base decisions as to whether a modification is reasonable to allow the use of a class of other power-driven mobility devices by individuals with disabilities in specific venues (e.g., parks, courthouses, office buildings, etc.). 73 FR 34466, 34504 (June 17, 2008).

The Department has relocated and modified the NPRM text that appeared in § 35.137(c) to new paragraph § 35.137(b)(2) to clarify what factors the public entity shall use in determining whether a particular other power-driven mobility device can be allowed in a specific facility as a reasonable modification. Section 35.137(b)(2) now states that ‘‘[i]n determining whether a particular other power-driven mobility device can be allowed in a specific facility as a reasonable modification under (b)(1), a public entity shall consider’’ certain enumerated factors. The assessment factors are designed to assist public entities in determining whether allowing the use of a particular other power- driven mobility device in a specific facility is reasonable. Thus, the focus of the analysis must be on the appropriateness of the use of the device at a specific facility, rather than whether it is necessary for an individual to use a particular device.

The NPRM proposed the following specific assessment factors: (1) The dimensions, weight, and operating speed of the mobility device in relation to a wheelchair; (2) the potential risk of harm to others by the operation of the mobility device; (3) the risk of harm to the environment or natural or cultural resources or conflict with Federal land management laws and regulations; and (4) the ability of the public entity to stow the mobility device when not in use, if requested by the user.

Factor 1 was designed to help public entities assess whether a particular device was appropriate, given its particular physical features, for a particular location. Virtually all commenters said the physical features of the device affected their view of whether a particular device was appropriate for a particular location. For example, while many commenters supported the use of another power-driven mobility device if the device were a Segway® PT, because of environmental and health concerns they did not offer the same level of support if the device were an off-highway vehicle, all- terrain vehicle (ATV), golf car, or other device with a fuel-powered or combustion engine. Most commenters noted that indicators such as speed, weight, and dimension really were an assessment of the appropriateness of a particular device in specific venues and suggested that factor 1 say this more specifically.

The term ‘‘in relation to a wheelchair’’ in the NPRM’s factor 1 apparently created some concern that the same legal standards that apply to wheelchairs would be applied to other power-driven mobility devices. The Department has omitted the term ‘‘in relation to a wheelchair’’ from § 35.137(b)(2)(i) to clarify that if a facility that is in compliance with the applicable provisions of the 1991 Standards or the 2010 Standards grants permission for an other power-driven mobility device to go on-site, it is not required to exceed those standards to accommodate the use of other power-driven mobility devices.

In response to requests that NPRM factor 1 state more specifically that it requires an assessment of an other power-driven mobility device’s appropriateness under particular circumstances or in particular venues, the Department has added several factors and more specific language. In addition, although the NPRM made reference to the operation of other power-driven mobility devices in ‘‘specific venues,’’ the Department’s intent is captured more clearly by referencing ‘‘specific facility’’ in paragraph (b)(2). The Department also notes that while speed is included in factor 1, public entities should not rely solely on a device’s top speed when assessing whether the device can be accommodated; instead, public entities should also consider the minimum speeds at which a device can be operated and whether the development of speed limit policies can be established to address concerns regarding the speed of the device. Finally, since the ability of the public entity to stow the mobility device when not in use is an aspect of its design and operational characteristics, the text proposed as factor 4 in the NPRM has been incorporated in paragraph (b)(2)(iii).

The NPRM’s version of factor 2 provided that the ‘‘risk of potential harm to others by the operation of the mobility device’’ is one of the determinants in the assessment of whether other power-driven mobility devices should be excluded from a site. The Department intended this requirement to be consistent with the Department’s longstanding interpretation, expressed in § II–3.5200 (Safety) of the 1993 Title II Technical Assistance Manual, which provides that public entities may ‘‘impose legitimate safety requirements that are necessary for safe operation.’’ (This language parallels the provision in the title III regulation at § 36.301(b).) However, several commenters indicated that they read this language, particularly the phrase ‘‘risk of potential harm,’’ to mean that the Department had adopted a concept of risk analysis different from that which is in the existing standards. The Department did not intend to create a new standard and has changed the language in paragraphs (b)(1) and (b)(2) to clarify the applicable standards, thereby avoiding the introduction of new assessments of risk beyond those necessary for the safe operation of the public entity. In addition, the Department has added a new section, 35.130(h), which incorporates the existing safety standard into the title II regulation.

While all applicable affirmative defenses are available to public entities in the establishment and execution of their policies regarding other power-driven mobility devices, the Department did not explicitly incorporate the direct threat defense into the assessment factors because § 35.130(h) provides public entities the appropriate framework with which to assess whether legitimate safety requirements that may preclude the use of certain other power-driven mobility devices are necessary for the safe operation of the public entities. In order to be legitimate, the safety requirement must be based on actual risks and not mere speculation regarding the device or how it will be operated. Of course, public entities may enforce legitimate safety rules established by the public entity for the operation of other power-driven mobility devices (e.g., reasonable speed restrictions). Finally, NPRM factor 3 concerning environmental resources and conflicts of law has been relocated to § 35.137(b)(2)(v).

As a result of these comments and requests, NPRM factors 1, 2, 3, and 4 have been revised and renumbered within paragraph (b)(2) in the final rule.

Several commenters requested that the Department provide guidance materials or more explicit concepts of which considerations might be appropriate for inclusion in a policy that allows the use of other power-driven mobility devices. 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.

For example, the U.S. General Services Administration (GSA) has developed a policy allowing the use of the Segway® PT and other EPAMDs in all Federal buildings under GSA’s jurisdiction. See General Services Administration, Interim Segway® Personal Transporter Policy (Dec. 3, 2007), available athttp://atfiles.org/files/pdf/Interim_Segway_Policy_121007.pdf (last visited June 24, 2010). The GSA policy defines the policy’s scope of coverage by setting out what devices are and are not covered by the policy. The policy also sets out requirements for safe operation, such as a speed limit, prohibits the use of EPAMDs on escalators, and provides guidance regarding security screening of these devices and their operators.

A public entity that determines that it can make reasonable modifications to permit the use of an other power-driven mobility device by an individual with a mobility disability might include in its policy the procedure by which claims that the other power-driven mobility device is being used for a mobility disability will be assessed for legitimacy (i.e., a credible assurance that the device is being used for a mobility disability, including a verbal representation by the person with a disability that is not contradicted by observable fact, or the presentation of a disability parking space placard or card, or State-issued proof of disability); the type or classes of other power-driven mobility devices are permitted to be used by individuals with mobility disabilities; the size, weight, and dimensions of the other power-driven mobility devices that are permitted to be used by individuals with mobility disabilities; the speed limit for the other power-driven mobility devices that are permitted to be used by individuals with mobility disabilities; the places, times, or circumstances under which the use of the other power-driven mobility device is or will be restricted or prohibited; safety, pedestrian, and other rules concerning the use of the other power-driven mobility device; whether, and under which circumstances, storage for the other power-driven mobility device will be made available; and how and where individuals with a mobility disability can obtain a copy of the other power-driven mobility device policy.

Public entities also might consider grouping other power-driven mobility devices by type (e.g., EPAMDs, golf cars, gasoline-powered vehicles, and other devices). For example, an amusement park may determine that it is reasonable to allow individuals with disabilities to use EPAMDs in a variety of outdoor programs and activities, but that it would not be reasonable to allow the use of golf cars as mobility devices in similar circumstances. At the same time, the entity may address its concerns about factors such as space limitations by disallowing use of EPAMDs by members of the general public who do not have mobility disabilities.

The Department anticipates that, in many circumstances, public entities will be able to develop policies that will allow the use of other power-driven mobility devices by individuals with mobility disabilities. Consider the following example:
A county courthouse has developed a policy whereby EPAMDs may be operated in the pedestrian areas of the courthouse if the operator of the device agrees not to operate the device faster than pedestrians are walking; to yield to pedestrians; to provide a rack or stand so that the device can stand upright; and to use the device only in courtrooms that are large enough to accommodate such devices. If the individual is selected for jury duty in one of the smaller courtrooms, the county’s policy indicates that if it is not possible for the individual with the disability to park the device and walk into the courtroom, the location of the trial will be moved to a larger courtroom.

Inquiry into the use of other power-driven mobility device.
The NPRM version of § 35.137(d) provided that ‘‘[a] public entity may ask a person using a power-driven mobility device if the mobility device is needed due to the person’s disability. A public entity shall not ask a person using a mobility device questions about the nature and extent of the person’s disability.’’ 73 FR 34466, 34504 (June 17, 2008).

Many environmental, transit system, and government commenters expressed concern about people feigning mobility disabilities to be able to use other power-driven mobility devices in public entities in which their use is otherwise restricted. These commenters felt that a mere inquiry into whether the device is being used for a mobility disability was an insufficient mechanism by which to detect fraud by other power-driven mobility device users who do not have mobility disabilities. These commenters believed they should be given more latitude to make inquiries of other power-driven mobility device users claiming a mobility disability than they would be given for wheelchair users. They sought the ability to establish a policy or method by which public entities may assess the legitimacy of the mobility disability. They suggested some form of certification, sticker, or other designation. One commenter suggested a requirement that a sticker bearing the international symbol for accessibility be placed on the device or that some other identification be required to signal that the use of the device is for a mobility disability. Other suggestions included displaying a disability parking placard on the device or issuing EPAMDs, like the Segway® PT, a permit that would be similar to permits associated with parking spaces reserved for those with disabilities.

Advocacy, nonprofit, and several individual commenters balked at the notion of allowing any inquiry beyond whether the device is necessary for a mobility disability and encouraged the Department to retain the NPRM’s language on this topic. Other commenters, however, were empathetic with commenters who had concerns about fraud. At least one Segway® PT advocate suggested it would be permissible to seek documentation of the mobility disability in the form of a simple sign or permit.

The Department has sought to find common ground by balancing the needs of public entities and individuals with mobility disabilities wishing to use other power-driven mobility devices with the Department’s longstanding, well-established policy of not allowing public entities or establishments to require proof of a mobility disability. There is no question that public entities have a legitimate interest in ferreting out fraudulent representations of mobility disabilities, especially given the recreational use of other power-driven mobility devices and the potential safety concerns created by having too many such devices in a specific facility at one time. However, the privacy of individuals with mobility disabilities and respect for those individuals, is also vitally important.
Neither § 35.137(d) of the NPRM nor § 35.137(c) of the final rule permits inquiries into the nature of a person’s mobility disability. However, the Department does not believe it is unreasonable or overly intrusive for an individual with a mobility disability seeking to use an other power-driven mobility device to provide a credible assurance to verify that the use of the other power-driven mobility device is for a mobility disability. The Department sought to minimize the amount of discretion and subjectivity exercised by public entities in assessing whether an individual has a mobility disability and to allow public entities to verify the existence of a mobility disability. The solution was derived from comments made by several individuals who said they have been admitted with their Segway® PTs into public entities and public accommodations that ordinarily do not allow these devices on-site when they have presented or displayed State-issued disability parking placards. In the examples provided by commenters, the parking placards were accepted as verification that the Segway® PTs were being used as mobility devices.

Because many individuals with mobility disabilities avail themselves of State programs that issue disability parking placards or cards and because these programs have penalties for fraudulent representations of identity and disability, utilizing the parking placard system as a means to establish the existence of a mobility disability strikes a balance between the need for privacy of the individual and fraud protection for the public entity. Consequently, the Department has decided to include regulatory text in § 35.137(c)(2) of the final rule that requires public entities to accept the presentation of a valid, State- issued disability parking placard or card, or State-issued proof of disability, as verification that an individual uses the other power-driven mobility device for his or her mobility disability. A ‘‘valid’’ disability placard or card is one that is presented by the individual to whom it was issued and is otherwise in compliance with the State of issuance’s requirements for disability placards or cards. Public entities are required to accept a valid, State-issued disability parking placard or card, or State-issued proof of disability as a credible assurance, but they cannot demand or require the presentation of a valid disability placard or card, or State-issued proof of disability, as a prerequisite for use of an other power-driven mobility device, because not all persons with mobility disabilities have such means of proof. If an individual with a mobility disability does not have such a placard or card, or State-issued proof of disability, he or she may present other information that would serve as a credible assurance of the existence of a mobility disability.

In lieu of a valid, State-issued disability parking placard or card, or State-issued proof of disability, a verbal representation, not contradicted by observable fact, shall be accepted as a credible assurance that the other power-driven mobility device is being used because of a mobility disability. This does not mean, however, that a mobility disability must be observable as a condition for allowing the use of an other power-driven mobility device by an individual with a mobility disability, but rather that if an individual represents that a device is being used for a mobility disability and that individual is observed thereafter engaging in a physical activity that is contrary to the nature of the represented disability, the assurance given is no longer credible and the individual may be prevented from using the device.

Possession of a valid, State-issued disability parking placard or card or a verbal assurance does not trump a public entity’s valid restrictions on the use of other power- driven mobility devices. Accordingly, a credible assurance that the other power- driven mobility device is being used because of a mobility disability is not a guarantee of entry to a public entity because, notwithstanding such credible assurance, use of the device in a particular venue may be at odds with the legal standard in § 35.137(b)(1) or with one or more of the § 35.137(b)(2) factors. Only after an individual with a disability has satisfied all of the public entity’s policies regarding the use of other power-driven mobility devices does a credible assurance become a factor in allowing the use of the device. For example, if an individual seeking to use an other power-driven mobility device fails to satisfy any of the public entity’s stated policies regarding the use of other power-driven mobility devices, the fact that the individual legitimately possesses and presents a valid, State-issued disability parking placard or card, or State-issued proof of disability, does not trump the policy and require the public entity to allow the use of the device. In fact, in some instances, the presentation of a legitimately held placard or card, or State- issued proof of disability, will have no relevance or bearing at all on whether the other power-driven mobility device may be used, because the public entity’s policy does not permit the device in question on-site under any circumstances (e.g., because its use would create a substantial risk of serious harm to the immediate environment or natural or cultural resources).

Thus, an individual with a mobility disability who presents a valid disability placard or card, or State-issued proof of disability, will not be able to use an ATV as an other power-driven mobility device in a State park if the State park has adopted a policy banning their use for any or all of the above-mentioned reasons. However, if a public entity permits the use of a particular other power-driven mobility device, it cannot refuse to admit an individual with a disability who uses that device if the individual has provided a credible assurance that the use of the device is for a mobility disability.

MORE RESOURCES

American Trails index on accessible trails, outdoor recreation, and the Americans with Disabilities Act

See DOJ ADA Website

Aditional information and comments on the “power-driven mobility device" issue:

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