DOJ to allow certain mobility devices on trails

posted Jan 31, 2011, 1:01 PM by Patty Heyden

 

ALERT! On March 15, 2011, new Department of Justice rules will allow certain “power-driven mobility devices” to be used on trails by “individuals with mobility disabilities.”

If you manage a trail that is open to the public this rule applies to your trail.

American Trails Magazine CoverAnalysis by Janet Zeller, U.S. Forest Service National Accessibility Program Manager

On March 15, 2011 the Department of Justice (DOJ) revised rules go into effect allowing “other power-driven mobility devices” to be used by “individuals with mobility disabilities.”Read the full text of the DOJ rule ...

This DOJ ruling applies to any place, indoors or outdoors, that is open to the public.

Under the American with Disabilities Act (ADA) Title II this DOJ rule applies to trails on State or local government lands. Also under the ADA Title III it applies to other “public accommodations” that would include trails open to the public on privately or commercially managed lands. Federal agency managed lands are not directly covered under the ADA, however this rule sets legal precedents the Federal agencies must watch. So, the Federal agencies are also reviewing their policies, procedures, and the way in which trails on the land base they manage have been assessed.

What is an "other power-driven mobility device?"

An “other power-driven mobility device” is defined in the rules as: "any mobility device powered by batteries, fuel, or other engines — whether or not designed primarily for use by individuals with mobility disabilities — that is used by individuals with mobility disabilities for the purpose of locomotion, including golf cars, electronic personal assistance mobility devices (EPAMDs), such as the Segway® PT, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair within the meaning of this section. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

In short an other power-driven mobility device is anything with a motor that can be driven, regardless of size or horsepower, if it is driven by a person who has a mobility related disability.

What is NOT an "other power-driven mobility device?"

Any device that meets the following DOJ definition of a wheelchair is not an other power-driven mobility device and must be allowed to be used anywhere, with no exceptions.

A wheelchair is: 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. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

Despite the DOJ ADA rules, the U.S. Forest Service wheelchair definition, regulations, and policies remain in place and continue to apply to all persons on the U.S. Forest Service managed lands.

Who is to be allowed to use the other power-driven mobility devices?

The DOJ rules say anyone who has a mobility disability. A person using an other power-driven mobility device may be asked to provide a “credible assurance” that the mobility device is required because of the person's disability. That credible assurance can be showing a valid, State-issued, disability parking placard or card, or other State-issued proof of disability, or if the person doesn’t have any of those with them, they may simply say that the other power-driven mobility device is being used for a mobility disability. A person may not be asked if they have a disability or anything about their disability.

Only 8 million people who have mobility limitations use wheelchairs, canes, crutches, etc. Close to 20 million people have a mobility related disability but don’t use wheelchairs, canes, and so forth. However, they still have mobility disabilities that limit the distance they can walk due to heart or breathing disorders, amputations, joint or muscle related disabilities, and the list goes on. Keep in mind that 85% of all disabilities aren’t obvious.

What do you need to do for your trail to be ready for March 15th when the DOJ rules on other power-driven mobility devices go into effect?

The DOJ rules require an entity open to the public to make reasonable modifications in its policies, practices, or procedures to allow the use of other power-driven mobility devices by individuals with mobility disabilities, UNLESS: that entity can document that it has completed an assessment of the facility, trail, route, or area, before the person requesting use of the device arrived onsite, and the entity found that class of other power-driven mobility device could not be used in that location due to one or more of the following DOJ assessment factors:

DOJ Assessment Factors:

(a) “The type, size, weight, dimensions, and speed of the device;

(b) The volume of pedestrian traffic (which may vary at different times of the day, week, month, or year);

(c) The design and operational characteristics (e.g., whether its service, program, or activity is conducted indoors, its square footage, the density and placement of stationary devices, and the availability of storage for the device, if requested by the user);

(d) Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility; and

(e) Whether the use of the other power-driven mobility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations.”

Those are the only factors a public entity or accommodation is to use in determining whether a particular class of other power-driven mobility device may be allowed in a specific location.

If one of those issues prevents the use of a specific class of other power-driven mobility device, that device may be denied use in the section of trail or area where that is an issue.

Post the information:

The information about the devices that may not be used must be posted where the public can easily access it before going to that location. The posted information must include the various classes of devices that may be used, rules related to that use, and who to contact for more information.

The DOJ rules regarding other power-driven mobility devices, are a portion of the revisions to the ADA Title II and Title III finalized by DOJ on 9/15/2010. Both are available in full on the DOJ ADA website at http://www.ada.gov/regs2010/ADAregs2010.htm.

We will be adding additional information to the American Trails website to help you understand this new rule, so check back often: American Trails Web page on the power-driven mobility devices rule.

More on accessible trails, outdoor recreation, and the Americans with Disabilities Act

We wish to thank Janet Zeller, U.S. Forest Service National Accessibility Program Manager, for providing this information on the new DOJ rule. Janet has generously offered to field questions for the immediate future. She can be reached via email at jzeller@fs.fed.us or by phone (202) 205-9597.

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