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ADA rule making proposed for "power-driven mobility devices"

July 26, 2010: U.S. Department of Justice issues final regulations revising Title II and III, including ADA Standards for Accessible Design including Wheelchairs and Other Power-Driven Mobility Devices

View recorded Webinar with audio in wmv format presented by American Trails on the DOJ Rule on "Other Power-Driven Mobility Devices," Feb. 23, 2011

See QUESTIONS and ANSWERS on power-driven mobility devices

See Revised Final Title II Regulation of the Americans with Disabilities Act of 1990 (42 U.S. C. 12131), which includes the full text of the new rule on "Other Power Driven Mobility Devices"

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

• Comments from American Trails to Department of Justice
• Concerns with DOJ proposal for "power-driven mobility devices"

An analysis of issues and proposed changes concerning mobility devices

On June 17, 2008, the Department of Justice (DOJ) published in the Federal Register a Notice of Proposed Rule Making (NPRM). This document can also be reached through the ADA home page at www.ada.gov then click on “What’s New” and follow the links to the ADA title II NPRM. Within this NPRM, DOJ is proposing to add a broad new category of “other power-driven mobility devices”.

All comments must be received by Regulations.Gov by August 18, 2008. When submitting comments electronically, you must include CRT Docket No. 105 in the subject box, and you must include your full name and address. Submit electronic comments and other data to http://www.regulations.gov.

Background
The primary focus of this DOJ NPRM document is to update American with Disabilities Act (ADA) accessibility guidelines/standards, the ADAAG of 1991, for state and local governments (Title II) and businesses that are open to the public (Title III). In addition the new category of “other power-driven mobility devices”, this NPRM proposes additional clarification of service animals, auxiliary aids and services, ticketing and communication.

DOJ NPRM is proposing the following changes concerning mobility devices:

The preamble of the NPRM under General Issues and in the Section by Section Analysis there is discussion of these proposed amendments and additions. The quickest way to locate those sections is by opening the ADA Title II document, then entering the words “mobility device” into the Find option of Word and then clicking Find Next. Toward the end of the entire document is the proposed wording of the regulation it self. That proposed regulatory section is also below, in this document, along with the questions for which DOJ is requesting comments.

The proposed regulatory changes related to Mobility Devices are as follows:

§ 35.104 - Defintions

“Other power driven mobility device means 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 (EPAMD’s), or any mobility aid designed to operate in areas without defined pedestrian routes.”

“Wheelchair means 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.”

NOTE: in the preamble of the NPRM DOJ states on page 31: “The Department believes that while this definition (of a wheelchair per the ADA Title V section 507c) is appropriate in the limited context of federal wilderness areas…” However the proposed regulation does not exclude other power driven mobility devices from use in proposed or designated federal Wilderness areas.

§ 35.137 Mobility devices

(a) Use of wheelchairs, scooters, and manually powered mobility aids.  A public entity shall permit individuals with mobility impairments to use wheelchairs, scooters, walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility impairments in any areas open to pedestrian use.
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(b) Other power-driven mobility devices. 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.

(c) Development of policies permitting the use of other power-driven mobility devices.  A public entity shall establish policies to permit the use of other power-driven mobility devices by individuals with disabilities when it is reasonable to allow an individual with a disability to participate in a service, program, or activity.  Whether a modification is reasonable to allow the use of a class of power-driven mobility device by an individual with a disability in specific venues (e.g., parks, courthouses, office buildings, etc.) shall be determined based on:
(1) The dimensions, weight, and operating speed of the mobility device in relation to a wheelchair;
(2) The risk of potential 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.

(d) Inquiry into use of power-driven mobility device.  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.

DOJ is also requesting comments on the following 9 Questions:

Question 8: “Please comment on the proposed definition of other power-driven
mobility devices. Is the definition overly inclusive of power-driven mobility devices that may be
used by individuals with disabilities? The Department’s proposed regulatory text on accommodating wheelchairs and other power-driven mobility devices is discussed in § 35.137 of the section-by-section analysis.”

Question 12: “As explained above, the definition of "wheelchair" is intended to be tailored so that it includes many styles of traditional wheeled mobility devices (e.g., wheelchairs and mobility scooters).  Does the definition appear to exclude some types of wheelchairs, mobility scooters, or other traditional wheeled mobility devices?  Please cite specific examples if possible.”

Question 13: “Should the Department expand its definition of wheelchair to include
Segways®?”

Question 14: “Are there better ways to define different classes of mobility devices, such as the weight and size of the device that is used by the Department of Transportation in the
definition of “common wheelchair”?

Question 15: “Should the Department maintain the non-exhaustive list of examples as the definitional approach to the term "manually powered mobility aids"?  If so, please indicate whether there are any other non-powered or manually powered mobility devices that should be considered for specific inclusion in the definition, a description of those devices, and an explanation of the reasons they should be included.”

Question 16: “Should the Department adopt a definition of the term "manually powered mobility aids"?  If so, please provide suggested language and an explanation of the reasons such a definition would better serve the public. The proposed regulation regarding mobility devices, including wheelchairs, is discussed in the section-by-section analysis for § 35.137.

Question 17: “Are there types of personal mobility devices that must be accommodated under nearly all circumstances? Conversely, are there types of mobility devices that almost always will require an assessment to determine whether they should be accommodated?  Please provide examples of devices and circumstances in your responses.”

Question 18: “Should motorized devices that use fuel or internal-combustion engines (e.g., all-terrain vehicles) be considered personal mobility devices that are covered by the ADA?  Are there specific circumstances in which accommodating these devices would result in a fundamental alteration?”

Question 19: “Should personal mobility devices used by individuals with disabilities be categorized by intended purpose or function, by indoor or outdoor use, or by some other factor?  Why or why not?”

Power-driven mobility issues:

• Outline of DOJ rule on power-driven mobility
• Questions & answers on DOJ rule
• Policies on OPDMD use from trail managers
• Recorded Feb. 23 Webinar
• ADA Regs (42 U.S. C. 12131) with text of DOJ rule
• Background on DOJ rule from Federal Register

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