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)

Categorization of wheelchair versus other power-driven mobility devices. Implicit in the creation of the two-tiered mobility device concept is the question of how to categorize which devices are wheelchairs and which are other power-driven mobility devices. Finding weight and size to be too restrictive, the vast majority of advocacy, nonprofit, and individual commenters opposed using the Department of Transportation's definition of ‘‘common wheelchair'' to designate the mobility device's appropriate category. Commenters who generally supported using weight and size as the method of categorization did so because of their concerns about potentially detrimental impacts on the environment and cultural and natural resources; on the enjoyment of the facility by other recreational users, as well as their safety; on the administrative components of government agencies required to assess which devices are appropriate on narrow, steeply sloped, or foot-and-hoof only trails; and about the impracticality of accommodating such devices in public transportation settings.

Many environmental, transit system, and government commenters also favored using the device's intended-use to categorize which devices constitute wheelchairs and which are other power-driven mobility devices. Furthermore, the intended-use determinant received a fair amount of support from advocacy, nonprofit, and individual commenters, either because they sought to preserve the broad accommodation of wheelchairs or because they sympathized with concerns about individuals without mobility disabilities fraudulently bringing other power-driven mobility devices into public facilities.

Commenters seeking to have the Segway^® PT included in the definition of ‘‘wheelchair'' objected to classifying mobility devices on the basis of their intended use because they felt that such a classification would be unfair and prejudicial to Segway^® PT users and would stifle personal choice, creativity, and innovation. Other advocacy and nonprofit commenters objected to employing an intended-use approach because of concerns that the focus would shift to an assessment of the device, rather than the needs or benefits to the individual with the mobility disability. They were of the view that the mobility-device classification should be based on its function—whether it is used for a mobility disability. A few commenters raised the concern that an intended-use approach might embolden public entities to assess whether an individual with a mobility disability really needs to use the other power-driven mobility device at issue or to question why a wheelchair would not provide sufficient mobility. Those citing objections to the intended use determinant indicated it would be more appropriate to make the categorization determination based on whether the device is being used for a mobility disability in the context of the impact of its use in a specific environment. Some of these commenters preferred this approach because it would allow the Segway^® PT to be included in the definition of ‘‘wheelchair.''

Many environmental and government commenters were inclined to categorize mobility devices by the way in which they are powered, such as battery-powered engines versus fuel or combustion engines. One commenter suggested using exhaust level as the determinant. Although there were only a few commenters who would make the determination based on indoor or outdoor use, there was nearly universal support for banning the indoor use of devices that are powered by fuel or combustion engines.

A few commenters thought it would be appropriate to categorize the devices based on their maximum speed. Others objected to this approach, stating that circumstances should dictate the appropriate speed at which mobility devices should be operated— for example, a faster speed may be safer when crossing streets than it would be for sidewalk use—and merely because a device can go a certain speed does not mean it will be operated at that speed. The Department has decided to maintain the device's intended use as the appropriate determinant for which devices are categorized as ‘‘wheelchairs.'' However, because wheelchairs may be intended for use by individuals who have temporary conditions affecting mobility, the Department has decided that it is more appropriate to use the phrase ‘‘primarily designed'' rather than ‘‘solely designed'' in making such categorizations. The Department will not foreclose any future technological developments by identifying or banning specific devices or setting restrictions on size, weight, or dimensions. Moreover, devices designed primarily for use by individuals with mobility disabilities often are considered to be medical devices and are generally eligible for insurance reimbursement on this basis. Finally, devices designed primarily for use by individuals with mobility disabilities are less subject to fraud concerns because they were not designed to have a recreational component. Consequently, rarely, if ever, is any inquiry or assessment as to their appropriateness for use in a public entity necessary.