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

6. Amend 28 CFR part 35 by adding § 35.137 to read as follows:

§ 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.

(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.