49 CFR Parts 37 and 38 -- Transportation for Individuals With Disabilities at Intercity, Commuter, and High Speed Passenger Railroad Station Platforms; Miscellaneous Amendments, Preamble

Mobility Device Size and Type

NPRM

Under the Department's current ADA rule, transportation providers are required to permit only wheelchairs meeting the definition of a “common wheelchair” onto their vehicles. A common wheelchair is defined by weight (not more than 600 pounds, including the occupant) and dimensional (30 x 48 inches) criteria. The “common wheelchair” originated as a design concept, answering the question of what a vehicle lift should be designed to accommodate, but has also been applied as an operational concept, permitting a transit operator to exclude from its vehicles wheelchairs that do not meet the weight and dimensional criteria. This effect of the current regulation was confirmed in Kiernan v. Utah Transit Authority (339 F.3d 1217, 10th Cir., 2003), where the court determined that the transit authority could exclude from its vehicles a wheelchair that did not meet the common wheelchair criteria, even if the vehicle could physically accommodate the device. The NPRM asked for comment on this and related issues.

Comments

As the Department is aware and as many commenters pointed out in response to the NPRM question on the subject, in the nearly 20 years since the Department issued its ADA regulation there has been a proliferation of different types of wheelchairs, including some models that may not meet the common wheelchair criteria. Most disability community commenters believed that the operational use of the concept was an unnecessary obstacle to transportation opportunities for people with mobility disabilities and that this use of the term should be dropped. They preferred a requirement that would direct transportation providers to carry any wheelchair that the provider's equipment could in fact accommodate. For example, if a lift could carry an 800-pound wheelchair, and there was room on the vehicle for the wheelchair, the provider would have to permit the device onto the vehicle.

Some commenters cited problems that transportation providers' implementation of the common wheelchair provision had caused. For example, someone who had a wheelchair that reclined, but did not recline it when boarding, was told she could not bring the wheelchair on board a paratransit vehicle because, when reclined, it exceeded the dimensional envelope, even though there was room for it to recline. Other passengers complained of being denied rides because a footrest exceeded the dimensional envelope or because their weight, combined with that of their wheelchair, exceeded the common wheelchair weight limit, even though they had ridden the system's vehicles for years without any problem.

Transportation providers generally preferred to retain either the operational effect of the common wheelchair definition or to use some other way of limiting the size and weight of wheelchairs brought onto the vehicle. Some commenters mentioned safety and potential damage to vehicles and equipment as concerns if larger or more irregularly shaped wheelchairs were permitted. The difficulty of securing such wheelchairs was one concern that commenters mentioned. In addition to weight, some commenters mentioned clearance concerns in the vehicle, such as difficulty in getting a wheelchair around a wheel well, driver station, or fare box. A number of transportation providers asked for flexibility in terms of the type of mobility aids they are required to carry.

A number of transportation commenters suggested that a longer-term solution to the problem would be to work with wheelchair manufacturers and the Department of Health and Human Services to establish standards for wheelchairs (or at least wheelchairs that would be purchased via Medicare or Medicaid). Such standards, they suggested, could address not only size and weight but also the ability of wheelchairs to be secured on vehicles. Additional research and consultation with stakeholders was also recommended.

In September 2005, the Department issued guidance concerning non-traditional mobility devices. It said, in essence, that under existing DOT nondiscrimination rules, regulated entities must accept such non-traditional devices (e.g., Segways) as long as the devices could be physically accommodated and accepting them did not cause a direct threat to safety. Some disability community commenters supported this approach, citing the increased mobility that these devices offered persons with mobility impairments, while some transportation industry commenters did not want to have to accept such devices, based on concerns about safety, space, and securement.

DOT Response

The Department continues to believe that standards based on Access Board guidelines for transportation vehicles are the appropriate basis for requirements pertaining to the design and construction of vehicles. To the extent that Access Board vehicle guidelines (currently in a process of revision) retain the “common wheelchair” definition, or another set of specifications for lifts and other aspects of vehicles, the Department anticipates continuing to incorporate those guidelines for vehicle design and construction for purposes of 49 CFR part 38. (See also 36 CFR part 1191.) The Department is not contemplating any actions that would require transportation providers and manufacturers to modify existing vehicles or design and construct new vehicles in a way that departs from standards incorporating Access Board guidelines.

Operational requirements are a different matter. If a transportation provider has a vehicle and equipment that meets or exceeds the Access Board's guidelines, and the vehicle and equipment can in fact safely accommodate a given wheelchair, then it is not appropriate, under disability nondiscrimination law, for the transportation provider to refuse to transport the device and its user. Consequently, the final rule deletes the operational role of the “common wheelchair” design standard and deletes the sentence concerning “common wheelchair” from the part 37 definition of wheelchair, as well as from section 37.165(b) and the Appendix D explanatory text. We are also making one other modification in the definition of “wheelchair,” changing “three- or-four wheeled devices” to “three- or more-wheeled devices.” This change recognizes that, in recent years, devices that otherwise resemble traditional wheelchairs may have additional wheels (e.g., two guide wheels in addition to the normal four wheels, for a total of six). The Department believes that devices of this kind should not be excluded from the definition of “wheelchair” solely on the basis of a larger number of wheels.

With respect to the size and weight of wheelchairs, the final rule requires transportation providers to carry a wheelchair and its user, as long as the lift can accommodate the size and weight of the wheelchair and its user and there is space for the wheelchair on the vehicle. However, a transportation provider would not be required to carry a wheelchair if in fact the lift or vehicle is unable to accommodate the wheelchair and its user, consistent with legitimate safety requirements.

For example, suppose that a bus or paratransit vehicle lift will safely accommodate an 800-pound wheelchair/passenger combination, but not a combination exceeding 800 pounds. The lift is one that exceeds the part 38 design standard, which requires lifts to be able to accommodate a 600-pound wheelchair/passenger combination. The transportation provider could limit use of that lift to a combination of 800 pounds or less. Likewise, if a wheelchair or its attachments extend beyond the 30 x 48 inch footprint found in part 38's design standards but fit onto the lift and can fit into the wheelchair securement area of the vehicle, the transportation provider would have to accommodate the wheelchair. However, if such a wheelchair was of a size that would block an aisle or not be able to fully enter a rail car, thereby blocking the vestibule, and interfere with the safe evacuation of passengers in an emergency, the operator could deny carriage of that wheelchair, if doing so was necessary as the result of a legitimate safety requirement.

This approach will not force transportation providers to redesign or modify vehicles, but it will prevent arbitrary actions of the kind mentioned by commenters. In addition, transportation providers should be aware that to be a legitimate safety requirement, any limitation must be based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities or their mobility devices. The transportation provider bears the burden of proof of demonstrating that any limitation on the accommodation of a wheelchair is based a legitimate safety requirement.

Beginning with the Department's initial ADA regulation in 1991, the Department has taken the position that a transportation provider cannot deny transportation to a wheelchair or its user on the ground that the device cannot be secured or restrained satisfactorily by the vehicle's securement system (see 49 CFR 37.165(d)). Consequently, a transit provider could not, consistent with this regulatory requirement, impose a limitation on the transportation of wheelchairs and other mobility aids based on the inability of the securement system to secure the device to the satisfaction of the transportation provider. The Department agrees that it would be useful for wheelchair manufacturers and the Department of Health and Human Services to work to design wheelchairs that are more compatible with vehicle securement devices, and with third-party funding resources such as Medicare and Medicaid to ensure that they are eligible under their guidelines. However, the Department of Transportation does not have authority to compel such developments, and it would be inconsistent with nondiscrimination requirements to allow transportation providers to deny service to people who use wheelchairs just because particular devices may be problematic from a securement point of view.

We recognize that persons with mobility disabilities use devices other than wheelchairs to assist with locomotion. Canes, crutches, and walkers, for example, are often used by people whose mobility disabilities do not require use of a wheelchair. These devices must be accepted under the same conditions as wheelchairs, just as DOJ rules require in other contexts. However, the Department does not interpret its rules to require transportation providers to accommodate devices that are not primarily designed or intended to assist persons with mobility disabilities (e.g., skateboards, bicycles, shopping carts), apart from general policies applicable to all passengers who might seek to bring such devices into a vehicle. Similarly, the Department does not interpret its rules to require transportation providers to permit an assistive device to be used in a way that departs from or exceeds the intended purpose of the device (e.g., to use a walker, even one with a seat intended to allow temporary rest intervals, as a wheelchair in which a passenger sits for the duration of a ride on a transit vehicle).

With respect to Segways or other non-traditional powered devices that do not fit the definition of “wheelchair,” the Department's position has been influenced by the approach taken by the DOJ in its recently-issued ADA rules. DOJ has created the category of “other power-driven mobility devices” (OPMDs). DOJ does not require OPMDs necessarily to be accommodated in every instance in which a wheelchair must be accommodated, but provides that entities must allow such devices unless the entity demonstrates that allowing the device would be inconsistent with legitimate safety requirements. Legitimate safety requirements must be based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities or about the devices they use for mobility purposes. We believe that language based on the DOJ approach is a good way of addressing the issues discussed by the Department in its September 2005 guidance and in comments to the docket for this rulemaking. Consequently, we are modifying the 2005 guidance to follow the DOJ approach.

We note that this approach does not give transportation providers unfettered discretion to deny transportation to Segways and other OPMDs. Transportation providers should accept such devices in most cases. Only if the transportation provider can demonstrate—with respect to a particular type of device in a specific facility or type of vehicle—that it would be infeasible (e.g., the device could not physically fit onto a vehicle) or contrary to legitimate safety requirements (e.g., prohibiting devices powered by internal combustion engines) could it be appropriate for a transportation provider to deny transportation to the OPMD and its user. The transportation provider bears the burden of proof for demonstrating that any limitation on the accommodation of an OPMD is based on a legitimate safety requirement.