28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Section 36.311 Mobility Devices (Section-by-Section Analysis)

Proposed § 36.311 has been added to provide additional guidance to public accommodations 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 indoor 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 36.311(a) reiterates the general rule that public accommodations 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 III applies.

Section 36.311(b) adopts the general requirement in the ADA that public accommodations 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 accommodation 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 § 36.311(c), public accommodations 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 accommodations may establish policies and procedures that address and distinguish among types of mobility devices.

For example, an amusement park 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 entity may address its concerns about factors such as space limitations by disallowing EPAMDs by members of the general public.

Section 36.311(c) lists permissible factors that a public accommodation 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 accommodations 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 § 36.311(c)(1) through (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 consideration is the potential risk of harm to others by the operation of other power-driven mobility devices.  The use of gasoline-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 accommodation to stow the mobility device when not in use, if requested by the user.

While a public accommodation 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 § 36.311(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 accommodation's services, programs, and activities, and that in many cases it will not fundamentally alter the public accommodation'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 disabilities are prohibited from operating EPAMDs at a theme park, the public accommodation has developed a policy allowing people with disabilities to use EPAMDs as their mobility device at the theme park.  The policy states that EPAMDs are allowed in all areas of the theme park that are open to pedestrians as a reasonable modification to its general policy on EPAMDs.  The public accommodation 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 theme park's goods and services.  The theme park's policies do, however, require that EPAMDs be operated at a safe speed limit.  A theme park 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 theme park's policy requires that it be operated at or below the designated speed limit.

Example 2:

A luxury cruise ship has developed a policy regarding the use of EPAMDs by individuals with disabilities on the ship.  In developing the policy, the public accommodation has considered the dimensions of the EPAMD, including its height, in relation to the common areas of the ship and the safety of other passengers.  Since the cruise ship in this example is large, there are many areas where a person using an EPAMD can be easily accommodated, including decks and spaces where passengers routinely walk and exercise, under certain weather conditions.  However, the dimensions of the ship, as on most such vessels, are more compact than analogous features of facilities on land and may contain thresholds and other features that present obstacles to some EPAMDs. Therefore, with respect to some areas, such as the passageways in cabin areas where the spaces are narrow and ceilings are low, the cruise ship may determine that allowing an individual with a disability to use an EPAMD for mobility would result in a fundamental alteration to some of the cruise ship areas.  In these constricted areas, the cruise ship staff may offer a wheelchair or other means of locomotion where the EPAMD would be inappropriate.  If the cruise ship in this example is smaller, it may be necessary for the staff to restrict the use of EPAMDs in most or all areas.

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

Question 47:  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 48:  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 49:  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?