Analysis of issues and proposed changes concerning 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
Wheelchairs and Other Power-Driven Mobility Devices. The rule adopts a two-tiered approach to mobility devices, drawing distinctions between wheelchairs and "other power-driven mobility devices." "Other power-driven mobility devices" include a range of devices not designed for individuals with mobility impairments, such as the Segway® PT, but which are often used by individuals with disabilities as their mobility device of choice. Wheelchairs (and other devices designed for use by people with mobility impairments) must be permitted in all areas open to pedestrian use. "Other power-driven mobility devices" must be permitted to be used unless the covered entity can demonstrate that such use would fundamentally alter its programs, services, or activities, create a direct threat, or create a safety hazard. The rule also lists factors to consider in making this determination. This approach accommodates both the legitimate business interests in the safe operation of a facility and the growing use of the Segway® PT as a mobility device by returning veterans and others who are using the Segway® PT as their mobility aid of choice.
The Department of Justice announced new rules for "power-driven mobility devices" on trails:
See the 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:
Department of Justice Notice of Proposed Rulemaking
On June 17, 2008, the Department of Justice (DOJ) published in the Federal Register a Notice of Proposed Rule Making (NPRM). Within this NPRM, DOJ is proposing to add a broad new category of “other power-driven mobility devices.” See "Section 36.311 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 www.regulations.gov
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.
§ 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.
(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:
(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
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
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
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?”
For more discussion of different sides of the power mobility issue see:
Power-driven mobility issues:
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Updated April 25, 2011