28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Section 35.137 Mobility Devices (Section-by-Section Analysis)

Proposed § 35.137 has been added to provide additional guidance to public entities about the circumstances in which power-driven mobility devices must be accommodated.

As discussed earlier in this NPRM, this proposal is in response to growing confusion about what types of mobility devices must be accommodated.  The Department has received complaints and become aware of situations where individuals with mobility disabilities have utilized for locomotion purposes riding lawn mowers, golf cars, large wheelchairs with rubber tracks, gasoline-powered, two-wheeled scooters, and other devices that are not designed for use or exclusively used by people with disabilities. Indeed, there has been litigation about whether the ADA requires covered entities to allow people with disabilities to use their EPAMDs like users of traditional wheelchairs.  Individuals with disabilities have sued several shopping malls in which businesses refused to allow a person with a disability to use an EPAMD.  See, e.g., Sarah Antonacci, White Oaks Faces Lawsuit over Segway, State Journal-Register, Oct. 9, 2007, available at http://www.sj-r.com/news/stories/17784.asp; 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. The Department believes clarification on what the ADA requires is necessary at this juncture.

Section 35.137(a) reiterates the general rule that public entities shall permit individuals using wheelchairs, scooters, and manually powered mobility aids, including walkers, crutches, canes, braces, and similar devices, in any areas open to pedestrians.  The regulation underscores this general proposition because the great majority of mobility scooters and wheelchairs must be accommodated under nearly all circumstances in which title II applies.

Section 35.137(b) adopts the general requirement in the ADA that public entities must make reasonable modifications to their policies, practices, and procedures when necessary to enable an individual with a disability to use a power-driven mobility device to participate in its services, programs, or activities unless doing so would result in a fundamental alteration of their services, programs, or activities.

If a public entity restricts the use of power-driven mobility devices by people without disabilities, then it must develop policies addressing which devices and under what circumstances individuals with disabilities may use power-driven mobility devices for the purpose of mobility.  Under the Department's proposed regulation in § 35.137(c), public entities must adopt policies and procedures regarding the accommodation of power-driven mobility devices other than wheelchairs and scooters that are designed to assess whether allowing an individual with a disability to use a power-driven mobility device is reasonable and does not result in a fundamental alteration to its programs, services, or activities. Public entities may establish policies and procedures that address and distinguish among types of mobility devices.

For example, a city 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 city may address its concerns about factors such as space limitations by disallowing EPAMDs by members of the general public.

Section 35.137(c) lists permissible factors that a public entity may consider in determining whether the use of different types of power-driven mobility devices by individuals with disabilities may be permitted.  In developing policies, public entities should group power-driven mobility devices by type (e.g., EPAMDs, golf cars, gasoline-powered vehicles, wheelchairs designed for outdoor use, and other devices).  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 in § 35.137(c)(1)-(3) may be used in order to develop policies regarding the use of other power-driven mobility devices by people with disabilities.  The dimensions, weight, and other characteristics of the mobility device in relation to a wheelchair or scooter, as well as the device's maneuverability and speed, may be considered. Another permissible factor is the risk of potential harm to others.  The use of gas-powered golf cars by people with disabilities inside a building may be prohibited, for example, because the exhaust may be harmful to others.   A mobility device that is unsafe to others would not be reasonable under the proposed regulation.  Additionally, the risk of harm to the environment or natural or cultural resources or conflicts with federal land management laws and regulations are also to be considered.  The final consideration is the ability of the public entity to stow the mobility device when not in use, if requested by the user.

While a public entity may inquire into whether the individual is using the device due to a disability, the entity may not inquire about the nature and extent of the disability, as provided in § 35.137(d). 

The Department anticipates that, in many circumstances, allowing the use of unique mobility devices by individuals with disabilities will be reasonable to provide access to a public entity's services, programs, and activities, and that in many cases it will not fundamentally alter the public entity's operations and services.  On the other hand, the use of mobility devices that are unsafe to others, or unusually unwieldy or disruptive, is unlikely to be reasonable and may constitute a fundamental alteration.

Consider the following examples: 

Example 1: Although people who do not have mobility impairments are prohibited from operating EPAMDs at the fairgrounds, the county has developed a policy allowing people with disabilities to use EPAMDs as their mobility device on the fairgrounds.  The county's policy states that EPAMDs are allowed in all areas of the fairgrounds that are open to pedestrians as a reasonable modification to its general policy on EPAMDs.  The county determined that the venue provides adequate space for a larger device such as an EPAMD and that it does not fundamentally alter the nature of the fair's activities and services.  The county's policies do, however, require that EPAMDs be operated at a safe speed limit.  A county employee may inquire at the ticket gate whether the device is needed due to the user's disability and also inform an individual with a disability using an EPAMD that the county policy requires that it be operated at or below the designated speed limit.

Example 2: The city has developed a policy specific to city hall regarding the use of EPAMDs (i.e., users who do not need the devices due to disability are required to leave the devices outside the building).  While most of city hall is spacious, the city has determined that it is not reasonable to allow people with disabilities to bring their EPAMDs into the recorder of deeds office, which is quite small, and the device's dimensions make it unsafe and unwieldy in this situation.  If it is not possible for the individual with a disability to park the mobility device and walk into the recorder of deeds office, the city government would still be required to provide services to the person through program access by meeting the individual in an adjacent, more spacious office, allowing him or her to obtain services over the phone, sending an employee to the individual's home, or through other means.

The Department is seeking public comment on the proposed definitions and policy concerning wheelchairs and other mobility devices.

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?