28 CFR Part 35 Nondiscrimination on the Basis of Disability in State and Local Government Services (2010 ADA Title II Regulations with amendments issued through Aug. 2016)

Whether the definition of ‘‘wheelchair'' includes the Segway^® PT. As discussed above, because individuals with mobility disabilities are using the Segway^® PT as a mobility device, the Department asked whether it should be included in the definition of ‘‘wheelchair.'' The basic Segway^® PT model is a two-wheeled, gyroscopically-stabilized, battery-powered personal transportation device. The user stands on a platform suspended three inches off the ground by wheels on each side, grasps a T-shaped handle, and steers the device similarly to a bicycle. Most Segway^® PTs can travel up to 121⁄2 miles per hour, compared to the average pedestrian walking speed of three to four miles per hour and the approximate maximum speed for power-operated wheelchairs of six miles per hour. In a study of trail and other non-motorized transportation users including EPAMDs, the Federal Highway Administration (FHWA) found that the eye height of individuals using EPAMDs ranged from approximately 69 to 80 inches. See Federal Highway Administration, Characteristics of Emerging Road and Trail Users and Their Safety (Oct. 14, 2004), available at http://www.tfhrc.gov/safety/pubs/04103 (last visited June 24, 2010). Thus, the Segway^® PT can operate at much greater speeds than wheelchairs, and the average user stands much taller than most wheelchair users.

The Segway^® PT has been the subject of debate among users, pedestrians, disability advocates, State and local governments, businesses, and bicyclists. The fact that the Segway^® PT is not designed primarily for use by individuals with disabilities, nor used primarily by persons with disabilities, complicates the question of to what extent individuals with disabilities should be allowed to operate them in areas and facilities where other power-driven mobility devices are not allowed. Those who question the use of the Segway^® PT in pedestrian areas argue that the speed, size, and operating features of the devices make them too dangerous to operate alongside pedestrians and wheelchair users.

Comments regarding whether to include the Segway^® PT in the definition of ‘‘wheelchair'' were, by far, the most numerous received in the category of comments regarding wheelchairs and other power-driven mobility devices. Significant numbers of veterans with disabilities, individuals with multiple sclerosis, and those advocating on their behalf made concise statements of general support for the inclusion of the Segway^® PT in the definition of ‘‘wheelchair.'' Two veterans offered extensive comments on the topic, along with a few advocacy and nonprofit groups and individuals with disabilities for whom sitting is uncomfortable or impossible.

While there may be legitimate safety issues for EPAMD users and bystanders in some circumstances, EPAMDs and other nontraditional mobility devices can deliver real benefits to individuals with disabilities. Among the reasons given by commenters to include the Segway^® PT in the definition of ‘‘wheelchair'' were that the Segway^® PT is well-suited for individuals with particular conditions that affect mobility including multiple sclerosis, Parkinson's disease, chronic obstructive pulmonary disease, amputations, spinal cord injuries, and other neurological disabilities, as well as functional limitations, such as gait limitation, inability to sit or discomfort in sitting, and diminished stamina issues. Such individuals often find that EPAMDs are more comfortable and easier to use than more traditional mobility devices and assist with balance, circulation, and digestion in ways that wheelchairs do not. See Rachel Metz, Disabled Embrace Segway, New York Times, Oct. 14, 2004. Commenters specifically cited pressure relief, reduced spasticity, increased stamina, and improved respiratory, neurologic, and muscular health as secondary medical benefits from being able to stand.

Other arguments for including the Segway^® PT in the definition of ‘‘wheelchair'' were based on commenters' views that the Segway^® PT offers benefits not provided by wheelchairs and mobility scooters, including its intuitive response to body movement, ability to operate with less coordination and dexterity than is required for many wheelchairs and mobility scooters, and smaller footprint and turning radius as compared to most wheelchairs and mobility scooters. Several commenters mentioned improved visibility, either due to the Segway^® PT's raised platform or simply by virtue of being in a standing position. And finally, some commenters advocated for the inclusion of the Segway^® PT simply based on civil rights arguments and the empowerment and self-esteem obtained from having the power to select the mobility device of choice. Many commenters, regardless of their position on whether to include the Segway^® PT in the definition of ‘‘wheelchair,'' noted that the Segway^® PT's safety record is as good as, if not better, than the record for wheelchairs and mobility scooters.

Most environmental, transit system, and government commenters were opposed to including the Segway^® PT in the definition of ‘‘wheelchair'' but were supportive of its inclusion as an ‘‘other power-driven mobility device.'' Their concerns about including the Segway^® PT in the definition of ‘‘wheelchair'' had to do with the safety of the operators of these devices (e.g., height clearances on trains and sloping trails in parks) and of pedestrians, particularly in confined and crowded facilities or in settings where motorized devices might be unexpected; the potential harm to the environment; the additional administrative, insurance, liability, and defensive litigation costs; potentially detrimental impacts on the environment and cultural and natural resources; and the impracticality of accommodating such devices in public transportation settings. Other environmental, transit system, and government commenters would have banned all fuel-powered devices as mobility devices. In addition, these commenters would have classified non-motorized devices as ‘‘wheelchairs'' and would have categorized motorized devices, such as the Segway^® PT, battery-operated wheelchairs, and mobility scooters as ‘‘other power-driven mobility devices.'' In support of this position, some of these commenters argued that because their equipment and facilities have been designed to comply with the dimensions of the ‘‘common wheelchair'' upon which the ADAAG is based, any device that is larger than the prototype wheelchair would be misplaced in the definition of ‘‘wheelchair.''

Still others in this group of commenters wished for only a single category of mobility devices and would have included wheelchairs, mobility scooters, and the Segway^® PT as ‘‘mobility devices'' and excluded fuel-powered devices from that definition.

Many disability advocacy and nonprofit commenters did not support the inclusion of the Segway^® PT in the definition of ‘‘wheelchair.'' Paramount to these commenters was the maintenance of existing protections for wheelchair users. Because there was unanimous agreement that wheelchair use rarely, if ever, may be restricted, these commenters strongly favored categorizing wheelchairs separately from the Segway^® PT and other power-driven mobility devices and applying the intended-use determinant to assign the devices to either category. They indicated that while they support the greatest degree of access in public entities for all persons with disabilities who require the use of mobility devices, they recognize that under certain circumstances, allowing the use of other power-driven mobility devices would result in a fundamental alteration of programs, services, or activities, or run counter to legitimate safety requirements necessary for the safe operation of a public entity. While these groups supported categorizing the Segway^® PT as an ‘‘other power-driven mobility device,'' they universally noted that in their view, because the Segway^® PT does not present environmental concerns and is as safe to use as, if not safer than, a wheelchair, it should be accommodated in most circumstances.

The Department has considered all the comments and has concluded that it should not include the Segway^® PT in the definition of ‘‘wheelchair.'' The final rule provides that the test for categorizing a device as a wheelchair or an other power-driven mobility device is whether the device is designed primarily for use by individuals with mobility disabilities. Mobility scooters are included in the definition of ‘‘wheelchair'' because they are designed primarily for users with mobility disabilities. However, because the current generation of EPAMDs, including the Segway^® PT, was designed for recreational users and not primarily for use by individuals with mobility disabilities, the Department has decided to continue its approach of excluding EPAMDs from the definition of ‘‘wheelchair'' and including them in the definition of ‘‘other power-driven mobility device.'' Although EPAMDs, such as the Segway^® PT, are not included in the definition of a ‘‘wheelchair,'' public entities must assess whether they can make reasonable modifications to permit individuals with mobility disabilities to use such devices on their premises. The Department recognizes that the Segway^® PT provides many benefits to those who use them as mobility devices, including a measure of privacy with regard to the nature of one's particular disability, and believes that in the vast majority of circumstances, the application of the factors described in § 35.137 for providing access to other-powered mobility devices will result in the admission of the Segway^® PT.