Slide 1:
ADA Audio Conference Series
August 21, 2012
This session is scheduled to begin at 2:00pm Eastern Time
Real-Time Captioning and the PowerPoint Presentation are available through the Webinar Platform.   Audio Connection is available through streaming audio and/or telephone only.

Slide 2:
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Questions – May be submitted in the Chat Area Text box. Keystrokes to enter the chat area are Control-M.
Emotions/Hand-raising: Please do not use these features during this session unless directed by the presenter.

Slide 3:
Rocky Mountain ADA Center
Segways, Golf Cars, Four Wheelers, Oh My!
Sandy Lahmann
August 21, 2012

Slide 4:
New Regulations
Wheelchairs and other power-driven mobility devices
Went into effect March 15, 2011
Title II and Title III regulations are identical

Slide 5:
New Regulations
Title II regulations § 35.137 
http://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm 
Title III regulations § 36.311 
http://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm

Slide 6:
Best Guidance
No settlement agreements, consent decrees, or Project Civic Access as yet
Limited publications
Go to the 2010 Guidance and Section-by-section Analysis included with the regulations

Slide 7: 
Overview
Two tiered approach
Definition for “wheelchair”
Provisions for use: allowed everywhere
Definition for “other power-driven mobility device”
Provisions for use: assessment factors determine use

Slide 8:
Definition of “Wheelchair”
“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.”
Includes mobility scooters
No size or weight maximum

Slide 9:
Definition of “Wheelchair”
“Mobility disability” includes a wide range of disabilities, including, circulatory and respiratory disabilities that make walking difficult or impossible.

Slide 10:
Use of Wheelchairs and Manually Powered Mobility Aids
Covered entities must permit individuals with mobility disabilities to use wheelchairs in any area open to pedestrian use.
Must also allow individuals with mobility disabilities to use manually-powered mobility aids in areas open to pedestrian use.
Include walkers, crutches, canes, braces, and other similar devices

Slide 11:
Other Power-Driven Mobility Device (OPDMD)
“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.” Is not a wheelchair

Slide 12:
Definition of “OPDMD”
Includes
Golf cars
Electronic personal assistance mobility devices (EPAMD), e.g. Segway® PT
Electric assisted bicycles (EAB)
ATVs
Any mobility device designed to operate in areas without defined pedestrian routes
Slide 13:
Use of OPDMDs
Covered entities must make reasonable modifications to permit individuals with mobility disabilities to use OPDMDs unless the entity can demonstrate such use would:
fundamentally alter programs, services or activities; create a direct threat; create a safety hazard; the class of OPDMD cannot be operated in accordance with legitimate safety requirements adopted by the entity

Slide 14:
Legitimate Safety Requirements
Must be based on actual risks, not on mere speculation, stereotypes, or generalizations about a particular class of devices, about individuals with disabilities, or about how such individuals will use the device.

Slide 15:
Legitimate Safety Requirements
Must consider whether legitimate safety requirements can be established for safe operation
Can’t exclude a device simply because it has the capacity to go fast
Instead you set a speed limit

Slide 16:
Reasonable Modifications Regarding OPDMDs
Burden on entity to show not reasonable
Assessment is made regarding class of devices, instead of an individual’s use of the device
This does not mean that an entity cannot look at an individual’s use of a device, it is just not the assessment under § 35.137(b)(1) and §36.311(b)(1).
Fundamental alteration, direct threat, and undue burden still apply

Slide 17:
OPDMD Assessment Factors
Sections § 35.137(b)(2) and §36.311(b)(2) set forth specific assessment factors that covered entities must consider to determine whether a particular other power-driven mobility device should be allowed in a specific facility as a reasonable modification.

Slide 18:
OPDMD Assessment Factor 1
The type, size, weight, dimensions, and speed of the device.

Slide 19:
OPDMD Assessment Factor 2
The facility’s volume of pedestrian traffic (which may vary at different times of the day, week, month, or year)

Slide 20:
OPDMD Assessment Factor 3
The facility’s 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.)

Slide 21:
OPDMD Assessment Factor 4
Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility.

Slide 22:
OPDMD Assessment Factor 5
Whether the use of the OPDMD 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.

Slide 23:
Impermissible Questions
Entities may not ask an individual using a wheelchair or other power-driven mobility device questions about the nature and extent of the individual’s disability
§ 35.137 (c)(1) and § 36.311 (c)(1)

Slide 24:
Permissible Questions Regarding OPDMD
The rules allow covered entities to ask persons using another power-driven mobility device to provide a “credible assurance” that the device is required because of the person’s mobility disability.  § 35.137 (c)(2) and § 36.311(c)(2)

Slide 25:
Credible Assurances
A valid, disability parking placard or card, or other State-issued proof of disability
A “valid” disability placard or card is one that is presented by the individual to whom it was issued and is otherwise in compliance with the State of issuance’s requirements for disability placards or cards

Slide 26:
Credible Assurances
A verbal representation by the individual with a disability that is not contradicted by observable fact, that the OPDMD is being used for a mobility disability

Slide 27:
Development of OPDMD Policies
Not included in the regs, but suggested in the interpretive guidance: entities that determine reasonable modifications can be made to allow the use of OPDMDs should consider developing a policy that clearly states the circumstances under which the use of OPDMDs by individuals with disabilities will be permitted.
Types and sizes permitted
Places, times and circumstances permitted
Speed limits and other safety rules
Storage availability
Policy related to credible assurance
Provide advance notice of policy

Slide 28:
Good Sample Policy
The U.S. General Services Administration (GSA) has developed a policy allowing the use of Segways® in Federal buildings
Details devices covered by the policy
Sets out requirements for safe operation
Speed limit
Prohibits use on escalators
Provides guidance regarding security screening of these devices and their operators
http://www.gsa.gov/graphics/pbs/Interim_Segway_Policy_121007.pdf 

Slide 29:
Problem Policies
“The following policies govern the use of OPDMDs on assets and easements: Mobility devices used on trails designated as Restricted must fit the following design requirements: less than 32” wide, design speed of 20 mph or less, must be electrically powered, vehicle weight of 60 lbs or less (not including the weight of the rider).”

Slide 30:
The problem:  
Cannot exclude a device just because it is able to go fast. Instead, you set a speed limit.

Slide 31:
Problem Policies
“Persons with a mobility disability may use any EAB (electric assisted bicycle) or EPAMD (electronic personal assistance mobility device – common example is a Segway PT) that has maximum power drive speed equal or less than 20 mph, is no wider than 36 inches, and has brakes that enable the operator to make the wheels skid on dry, level and clean pavement.”

Slide 32:
The problem:
Can’t exclude device because it can go fast. Set a speed limit.
Can’t necessarily exclude a device that doesn’t have brakes if technology provides another means of stopping device safely
Segway PT doesn’t have brakes.  You move forward by leaning slightly forward. You stop by stopping your lean. No brakes. Still safe.

Slide 33:
Problem Policies
In a natural area:
“The use of any power driven devices or vehicles by the public, including other power-driven mobility devices used by disabled individuals, creates a substantial risk of serious harm to the immediate environment and natural resources. Due to the need to address soil integrity, erosion and vegetative concerns along with guest safety, XXXX Resort has adopted a ‘no motorized’ policy for the public during the summer season.”

Slide 34:
The problem: 
Can’t exclude any power driven device. Power wheelchairs must be allowed in any area open to pedestrian use.

Slide 35:
Problem Policies
“ .  .  . defines a wheelchair as 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 outdoor locomotion.”

Slide 36:
The problem: 
The definition for a wheelchair states it is used for “the main purpose of indoor or of both indoor and outdoor locomotion.” It’s not either indoor or outdoor. It must be suitable for using indoors. In other words, it must be appropriate to use at an indoor shopping mall. If it is only suitable for outdoor use, it’s not a wheelchair; it’s an OPDMD.

Slide 37:
Questions?

Slide 38:
Resources
From the Department of Justice - ADA Update: A Primer for Small Business
http://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.pdf
Slide 39:
Resources
From the ADA National Network: Wheelchairs and Other Power-Driven Mobility Devices
http://adata.org/sites/cms.adata.org/files/files/National%20ADA%20Center%20Fact%20Sheet%207%20WHEELCHAIRS.pdf 
From the Northwest ADA Center: Wheelchair and Other Power Driven Mobility Devices
http://www.dbtacnorthwest.org/_public/site/files/fact_sheets/Facts-OPDMD-RA.pdf

Slide 40:
Sandy Lahmann
Meeting the Challenge, Inc.
Operating the Rocky Mountain ADA Center
slahmann@mtc-inc.com
www.adainformation.org 

1-800-949-4232 (V/TTY) in CO, UT, WY, MT, ND, SD
719-444-0268 (V/TTY)
719-444-0252 (V/TTY)
719-358-2460 (VP)
3630 Sinton Road, Ste. 103
Colorado Springs, CO 80907

Slide 41:
Thank you for participating in today’s 
ADA-Audio Conference Session
The next scheduled session is:
“Don’t Forget to Cast Your Vote: Accessibility of Polling Places”
September 18, 2012
Register at:  www.ada-audio.org or call 877-232-1990 V/TTY