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)

Definition of ‘‘wheelchair.'' In seeking public feedback on the NPRM's definition of ‘‘wheelchair,'' the Department explained its concern that the definition of ‘‘wheelchair'' in section 508(c)(2) of the ADA (formerly section 507(c)(2), July 26, 1990, 104 Stat. 372, 42 U.S.C. 12207, renumbered section 508(c)(2), Public Law 110–325 section 6(a)(2), Sept. 25, 2008, 122 Stat. 3558), which pertains to Federal wilderness areas, is not specific enough to provide clear guidance in the array of settings covered by title II and that the stringent size and weight requirements for the Department of Transportation's definition of ‘‘common wheelchair'' are not a good fit in the context of most public entities. The Department noted in the NPRM that it sought a definition of ‘‘wheelchair'' that would include manually-operated and power-driven wheelchairs and mobility scooters (i.e., those that typically are single-user, have three to four wheels, and are appropriate for both indoor and outdoor pedestrian areas), as well as a variety of types of wheelchairs and mobility scooters with individualized or unique features or models with different numbers of wheels. The NPRM defined a wheelchair as ‘‘a device designed solely for use by an individual with a mobility impairment for the primary purpose of locomotion in typical indoor and outdoor pedestrian areas. A wheelchair may be manually-operated or power-driven.'' 73 FR 34466, 34479 (June 17, 2008). Although the NPRM's definition of ‘‘wheelchair'' excluded mobility devices that are not designed solely for use by individuals with mobility disabilities, the Department, noting that the use of the Segway^® PT by individuals with mobility disabilities is on the upswing, inquired as to whether this device should be included in the definition of ‘‘wheelchair.'' Many environment and Federal government employee commenters objected to the Department's proposed definition of ‘‘wheelchair'' because it differed from the definition of ‘‘wheelchair'' found in section 508(c)(2) of the ADA—a definition used in the statute only in connection with a provision relating to the use of a wheelchair in a designated wilderness area. See 42 U.S.C. 12207(c)(1). Other government commenters associated with environmental issues wanted the phrase ‘‘outdoor pedestrian use'' eliminated from the definition of ‘‘wheelchair.'' Some transit system commenters wanted size, weight, and dimensions to be part of the definition because of concerns about costs associated with having to accommodate devices that exceed the dimensions of the ‘‘common wheelchair'' upon which the 2004 ADAAG was based.

Many advocacy, nonprofit, and individual commenters indicated that as long as the Department intends the scope of the term ‘‘mobility impairments'' to include other disabilities that cause mobility impairments (e.g., respiratory, circulatory, stamina, etc.), they were in support of the language. Several commenters indicated a preference for the definition of ‘‘wheelchair'' in section 508(c)(2) of the ADA. One commenter indicated a preference for the term ‘‘assistive device,'' as it is defined in the Rehabilitation Act of 1973, over the term ‘‘wheelchair.'' A few commenters indicated that strollers should be added to the preamble's list of examples of wheelchairs because parents of children with disabilities frequently use strollers as mobility devices until their children get older.

In the final rule, the Department has rearranged some wording and has made some changes in the terminology used in the definition of ‘‘wheelchair,'' but essentially has retained the definition, and therefore the rationale, that was set forth in the NPRM. Again, the text of the ADA makes the definition of ‘‘wheelchair'' contained in section 508(c)(2) applicable only to the specific context of uses in designated wilderness areas, and therefore does not compel the use of that definition for any other purpose. Moreover, the Department maintains that limiting the definition to devices suitable for use in an ‘‘indoor pedestrian area'' as provided for in section 508(c)(2) of the ADA, would ignore the technological advances in wheelchair design that have occurred since the ADA went into effect and that the inclusion of the phrase ‘‘indoor pedestrian area'' in the definition of ‘‘wheelchair'' would set back progress made by individuals with mobility disabilities who, for many years now, have been using devices designed for locomotion in indoor and outdoor settings. The Department has concluded that same rationale applies to placing limits on the size, weight, and dimensions of wheelchairs.

With regard to the term ‘‘mobility impairments,'' the Department intended a broad reading so that a wide range of disabilities, including circulatory and respiratory disabilities, that make walking difficult or impossible, would be included. In response to comments on this issue, the Department has revisited the issue and has concluded that the most apt term to achieve this intent is ‘‘mobility disability.'' In addition, the Department has decided that it is more appropriate to use the phrase ‘‘primarily'' designed for use by individuals with disabilities in the final rule, rather than ‘‘solely'' designed for use by individuals with disabilities—the phrase proposed in the NPRM. The Department believes that this phrase more accurately covers the range of devices the Department intends to fall within the definition of ‘‘wheelchair.''

After receiving comments that the word ‘‘typical'' is vague and the phrase ‘‘pedestrian areas'' is confusing to apply, particularly in the context of similar, but not identical, terms used in the proposed Standards, the Department decided to delete the term ‘‘typical indoor and outdoor pedestrian areas'' from the final rule. Instead, the final rule references ‘‘indoor or of both indoor and outdoor locomotion,'' to make clear that the devices that fall within the definition of ‘‘wheelchair'' are those that are used for locomotion on indoor and outdoor pedestrian paths or routes and not those that are intended exclusively for traversing undefined, unprepared, or unimproved paths or routes. Thus, the final rule defines the term ‘‘wheelchair'' to mean ‘‘a manually operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor or of both indoor and outdoor locomotion.''