DEFINITIONS OF “WHEELCHAIR” AND “OTHER POWER-DRIVEN MOBILITY DEVICES”

Definitions Of "Wheelchair" And "Other Power-Driven Mobility Devices"

SUMMARY: The Department proposes new definitions for “wheelchair” and “other power-driven mobility device.” Other power-driven mobility devices could be restricted by covered entities, based on four factors, and covered entities could inquire if the individual is using such a device due to a disability.

Question 8: Definition of “other power-driven mobility device”: The definition includes battery-driven, gas-driven or engine-driven devices that are not designed for use by people with mobility impairments and are used in non-pedestrian areas. Response: Definition is not overly inclusive. All such vehicles should be considered when determining if individual with a disability needs it for access.

Question 12: Is the definition of “wheelchair” exclusionary of typical wheelchairs and scooters? Response: No. We support the Department’s two-definition scheme and, with a clarification in language, also support this definition. “Designed for use by individuals with mobility impairments” should be clarified in commentary to address the breadth of mobility impairments.

Question 13: Should the definition of “wheelchairs” include Segways? Response: No. Segways are covered appropriately under the definition of “other power-assisted mobility devices.”

Question 14: Should classes of mobility devices be defined like Department of Transportation regulations, e.g., by size and weight? Response: No. The DOT definition is too restrictive and excludes too many wheelchairs. A restriction based on the capacity of wheelchair lifts does not make sense in buildings and facilities. Technologies keep changing and typical concepts of wheelchairs are very different today than when the ADA went into effect.

Question 15: Should DOJ maintain the non-exhaustive list of examples (e.g., canes, crutches and walkers) as the definitional approach for “manually powered mobility aids?” Response: Yes, the Department’s approach is acceptable. There is no need for a separate definition.

Question 17: What factors should be considered when defining personal mobility devices? Response: Intended purpose, and consequences of use, are better definitional elements than size and weight.

Question 18: Should devices with combustible engines (e.g., ATV’s) be considered “other power-driven mobility devices,” and when would using such a device be a fundamental alteration? Response: Off-Highway Vehicles (OHV’s, a category which includes but is not limited to All-Terrain Vehicles or ATV’s) are properly to be considered in the category of “other power-driven mobility devices.” Each type of device should be considered on a case-by-case basis, applying the factors DOJ has set forth balancing the need for the device for access against fundamental alteration and direct threat. The requirement that entities develop policies in advance is a good idea. The proposed factors are generally good, but some adjustments to the proposed DOJ factors are needed:

Factor 1: “Dimensions, weight and speed” should be addressed in commentary to say the appropriateness of the device under the circumstances is what covered entities should be considering (e.g., a much larger device may be okay in a public park, but not a small governmental office.)

Factor 2: “The risk of potential harm to others” is too broad. It needs to be restricted to the definition of “direct threat,” which prohibits determinations made based on unfounded stereotypes, generalizations, and prejudices.

Question 19: Should personal mobility devices be categorized by intended use and purpose or by other factors? Response: Categorizing by intended purpose, and consequences of use, is far better than by size and weight.

Questions and Comments:

Question 12 (Titles II & III): As explained above [in the NPRM commentary], 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.

We support the Department’s distinction in the proposed regulations made between the definition of a “wheelchair” and “other power-driven mobility device.” Wheelchair use may never be restricted, but other power-driven mobility devices may be, if they would pose a fundamental alteration of direct threat. Disability rights advocates want to ensure that all individuals with disabilities who require the use of mobility devices who need those devices for access are provided with the greatest degree of access in government facilities and public accommodations as is possible. Yet we also recognize that the use of certain devices in certain limited circumstances cannot be permitted. In particular, Off-Highway Vehicles (OHV’s) must sometimes be restricted due to their potential to damage the environment.

In the proposed definition of “wheelchair,” as long as the language “designed solely for use by an individual with a mobility impairment” is understood to encompass substantial limitations in major life activities beyond just walking, this part of the definition is helpful. For example, if it covers a device designed for a person with a severe breathing impairment which limits mobility, it is broad enough as drafted.

Question 14 (Titles II & III): 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 19 (Title II) and Question 49 (Title III): 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?

The Department has acted properly in not proposing the Department of Transportation (DOT) definition. This language should be preserved in the final rule. The Department must not adopt the DOT common wheelchair definition, because technology continues to change. Sizes, dimensions and weights of wheelchairs vary dramatically. Defining wheelchairs in a way that could exclude certain individuals who use wheelchairs from public buildings and accommodations would be a very significant restriction of civil rights, for arbitrary and unnecessary reasons.

Many wheelchair users who use public and private transportation are very concerned with the current DOT size and weight limits for wheelchair lifts, see, e.g. 49 C.F.R. § 37.3. If the user of a wheelchair exceeds 200 pounds and requires a heavier construction power chair, which may exceed 350 pounds, plus any additional attached equipment, the wheelchair user is increasingly, and often unnecessarily, being excluded from using transportation service. Commonly used wheelchairs now tilt, recline, stand and elevate. All of these devices add either weight or size to the wheelchair, depending on the position of the chair when measured. In addition, the use of scooters today is common. Scooters often have dimensions in excess of the 30" by 48" DOT definition of “common wheelchair” and of wheelchair seating locations set forth in the Standards for Accessible Design. Speeds of wheelchairs vary dramatically as well: Some power chairs move at top speed at a few M.P.H., while others can move faster than ten M.P.H. The speed of a wheelchair should not be relevant to the definition of a “wheelchair,” as the speed is controlled by the user.

What may have been thought to constitute a “common wheelchair” when the ADA was passed cannot be used to define “wheelchair” today. As noted in the NPRM, wheelchairs are commonly thought of as three-to-four wheeled devices, but, in recent years, one of the most commonly used power- wheelchairs is the mid-wheel drive wheelchair, a device having five to six wheels. The size and weight restrictions that appear in the DOT definition of “common wheelchair” that relate to the capacity of a wheelchair lift and space needed to accommodate wheelchair users, should not be placed on the definition of “wheelchair” in the Title II and Title III regulations, which govern everything from accessing a public park to a local grocery store. The same kinds of size and space restrictions that are of concern in the transportation context rarely, if ever, exist in the public facilities and accommodations context. Even the definition of “common wheelchair” under the DOT regulations has become highly problematic because it excludes many people with mobility disabilities from using transportation when the vehicle could transport the individual and the device. See the examples below, providing examples from the Disability Rights Education and Defense Fund of the problems with the definition of “common wheelchair” in the DOT regulation.

Question 8 (Titles II and III): 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?

Questions 18 (Title II) and 48 (Title III): 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?

We support the Department’s proposal requiring covered entities that restrict the use of power-driven mobility devices by people without disabilities, to develop policies addressing which devices, and under what circumstances, individuals with disabilities may use power-driven mobility devices for the purpose of mobility (other than wheelchairs and scooters). The Department points out that public entities and accommodations may establish policies and procedures that address and distinguish among types of mobility devices, and we support this as well. There are mobility devices used by individuals with disabilities that are not “wheelchairs,” but that must sometimes be restricted by public entities, conducting the reasonable policy modification analysis set forth in proposed 28 C.F.R. §§ 35.137(c) & 36.311(c). In particular, Off-Highway Vehicles (OHV’s, a category which includes but is not limited to All-Terrain Vehicles or ATV’s) may be in this category. But, as the Department states, a blanket exclusion of all devices that fall under the definition of other power-driven mobility devices in all locations would likely violate the proposed regulation.

The factors listed by the Department that can be considered in developing a policy on the use of other power-driven mobility devices are largely good (subject to the more specific comments below). It may not be practical, to give one example, for the staff of a state park or wilderness area to be able to make a detailed case-by-case assessment of each particular mobility device at the point when its user wants to enter the park. However, parks can develop considered policies in advance about what “other power-driven mobility devices” they will allow under what circumstances. For example, particular devices may be limited to specific areas, or particular seasons, or to particular speeds. If the purpose of allowing an individual to use such a device is that they have limitations in walking, a park can limit the “other power driven mobility device” they are using, to an approximate walking speed. It would be legitimate to restrict the user from traveling at 10, 20, or 30 miles an hour. As another example, the US Forest service does not allow Segways on equestrian-only trails, which have narrow, tight turns and steep slopes.

In the final rule’s commentary, the Department should clarify that the list of factors to be considered in making a determination about power-assisted mobility devices is an extension of the current ADA provisions about reasonable modifications of policies, practices and procedures, fundamental alteration, and direct threat.

The proposed factors for analysis are all helpful in making this determination, with the following adjustments:

Factor (1): Determinations based on “dimensions, weight and operating speed” should be clarified to acknowledge that this factor is really a determination of the appropriateness of using the device under the circumstances, considering the needs of the individual with a disability and whether use of the device will constitute a fundamental alteration or direct threat. An individual with a disability may use a power-driven wheeled gurney with oxygen tanks, which may be appropriate in a public park, but, because of the size of the platform, may not fit into a small governmental office. In rural communities where sidewalks may not exist, it might be reasonable for an individual with a disability to use a gas-powered vehicle or golf cart to get from home to work, a public park or to the store. It is appropriate for a person crossing a busy city street to operate the device at a much higher speed than should be permitted when the individual is entering a building. In certain circumstances, gas-powered vehicles, including all Off-Highway Vehicles (or OHV’s), may cause a fundamental alteration or direct threat, but a fact-based, considered determination must be made in any such policy. With respect to gas-powered vehicles, factors to be considered in the fundamental alteration analysis may include the location of the device and its fumes near indoor areas and the environmental impact of using the device.

Factor (2): Determinations made with respect to the “the risk of potential harm to others” is too broad and should be changed to incorporate the existing “direct threat” standard.

Eighteen years after the passage of the ADA, restaurants, theaters and other public buildings still request users of mobility devices to move their devices or leave because the mobility device is perceived as a fire hazard or for other, often illegitimate, reasons. Many individuals who use mobility devices operate them at a safe speed, but based on unfounded assumptions, are perceived as moving too fast. The speed at which a device is operated is within the operator’s control just as the speed at which a person walks or runs is controlled by the person. The direct threat standard permits the prohibition of a person using a mobility device at unsafe speeds. The proposed standard does not incorporate the important limitations of the direct threat standard, such as the prohibition against basing restrictions against access on stereotypes or unfounded assumptions. Under the proposed factor, a device could be excluded from a public building because the owner of the business has determined that the device, if the user operates it at its top speed, creates the risk of potential harm, even though that speed has never been used. In contrast, the direct threat provision would not allow business owners make such a generalization. The direct threat exception was designed to provide safety in public accommodations and facilities, while recognizing that many people in our society still harbor unfounded fears about the safety risks posed by people with disabilities. Thus, the analysis and balancing test for direct threat found in 28 C.F.R. §§ 35.104 and 36.208 should be incorporated into factor 2.

Factors 3 and 4 are acceptable.

With the modifications suggested above, we believe the factors in the proposed regulations accomplish the necessary balancing of interests.

Inquiries

The very narrow inquiry that the Department allows covered entities to make of users of “other power-driven mobility devices” – that is, whether the individual is using the device due to a disability – is appropriate. It must be maintained in the final rule, as is; the Department must not expand the allowable inquiries any more broadly, into the nature and extent of the disability, or in any other respect.

We note that such inquiries may not be made regarding wheelchairs, only regarding other power-driven mobility devices. This distinction is proper and important.

It is well known that covered entities have often asked people with disabilities in-depth, unnecessary, and irrelevant inquiries which offer little useful information, but which have often been the basis for discrimination. DOJ’s proposal to limit the scope of inquiries about other power-driven mobility devices will ensure that people with disabilities who are using them for access will be able to do so in the appropriate circumstances, and at the same time, will provide covered entities with the necessary information to place legitimate limitations on such devices.

Question 15 (Titles II and III): 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 (Titles II and III): 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.

There is no need for separate definition of “manually powered mobility aid.” The regulatory non-exhaustive list of “walkers, crutches, canes, braces and other similar devices” is sufficient. We are not sure, at this time, if other items should be added to the list.

Question 13 (Titles II and III): Should the Department expand its definition of “wheelchair” to include Segways?

Question 17 (Title II) and Question 47 (Title III): 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.

Segways are not “wheelchairs,” which the Department has appropriately defined differently from power-assisted mobility devices; however, because Segways have very little impact on the environment and are generally as safe as or safer to use than most wheelchairs, Segways should be permitted to be used by individuals with mobility disabilities who need them because of disability, in most circumstances. See the discussion above regarding OHV’s, which should legitimately be restricted in some circumstances, for environmental reasons.

The distinction between the definition of “wheelchair,” a device which should be permitted in all public facilities and public accommodations, and “power-assisted mobility devices,” which are subject to the analysis in proposed 28 C.F.R. §§ 35.137(b) & 36.311(b), strikes the appropriate balance needed between ensuring access for individuals with disabilities and the concerns of public facilities about fundamental alterations and individuals who pose a direct threat. Individuals who use wheelchairs and manually powered mobility aids should be provided access. Other power-driven mobility devices may be subject to the assessment set forth in the Department’s proposed regulations, with the above modifications.

Typical examples from among the Disability Rights Education and Defense Fund’s (DREDF’s) clients of the problems with the DOT definition of “common wheelchair,” quoted from DREDF comments on 2006 DOT ADA rulemaking, accessed on July 19, 2008 at http://dredf.org/transportation/draftcoments6_06.html.

o An individual uses a wheelchair which is capable of reclining. The individual never reclines the chair when using the lift or ramp to enter and exit the vehicle. During the ride, the individual reclines due to severe chronic back pain, and has done so for years; there has always been adequate space for this on the agency's vehicles, even on shared rides. Yet, one day, she is told that, because she reclines during the paratransit ride, she will no longer be accepted for ADA paratransit because, in the reclining position, her wheelchair exceeds the common wheelchair length limit.

o An individual has a fused knee, and uses one elevated footrest to support it. In such a position, the wheelchair exceeds the length limit of the common wheelchair description. The person is denied transportation by the transit agency, though he has ridden with an elevated footrest for some time in the past.

o An individual uses a wheelchair which can recline but he never puts it into that position for any reason. During his ADA paratransit eligibility determination, the transit agency requires him to recline the chair and then measures it. Since in this position, it runs afoul of the common wheelchair envelope, he is denied eligibility.

o A woman is buying a scooter and, before purchasing it, she calls the paratransit provider to verify that the dimensions are OK. The Office Manager tells her he is sure something can be worked out. The woman purchases the scooter. Later it is discovered that the scooter is four inches too wide to fit the common wheelchair envelope. The Paratransit Director has now called the woman and told her the paratransit program can no longer transport her using this scooter.

o Individuals who have been riding on a transit agency's vehicles for years are told that, because of the combined weight of themselves and their mobility devices, or because the length of their footrests is too long, they may no longer ride the system.

o A wheelchair is measured during a paratransit eligibility reassessment and the user is told he is approved "in a different chair" - even though he has always ridden the system using this same wheelchair.