This winter, the United States Department of Justice (“DOJ”) released a new technical assistance guidance (the “Guidance”) regarding Wheelchairs, Mobility Aids, and Other Power-Driven Mobility Devices (“OPDMD”), which elaborates upon the requirements set forth in the regulations governing Titles II (State and Local governments) and III (places of public accommodation) of the Americans with Disabilities Act and the accompanying 2010 Standards for Accessible Design. The Guidance is available for download from the DOJ.

Covered entities must allow individuals with disabilities who use manual or power wheelchairs or scooters, and manually-powered aids, including walkers, crutches, and canes, into all areas where members of the public are allowed to go.  Covered entities must also permit access to individuals with disabilities using OPDMD unless a particularly type of device cannot be accommodated due to legitimate safety, health, or environmental concerns.

An OPDMD is defined as “any mobility device powered by batteries, fuel, or other engines . . . that is used by individuals with mobility disabilities for the purpose of locomotion, including golf cars, electronic personal assistance mobility devices . . . such as the Segway PT, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair.”  Where legitimate safety, health, or environmental concerns bar the accommodation of a particular type of OPDMD, an entity must provide the service it offers in alternate ways to the greatest extent possible.

Individuals with disabilities have the right to choose the mobility device that best suits their needs, and, therefore, a facility may be required to allow an otherwise-prohibited device if it is being used by a person who requires it due to a mobility disability.  Five factors must be considered in assessing whether a particular OPDMD can be accommodated in a given facility:

• The type, size, weight, dimensions, and speed of the device;
• The facility’s volume of pedestrian traffic at given times of the day, week, year, etc.;
• The facility’s design and operational characteristics;
• Whether legitimate safety requirements can be established to permit the safe operation of the OPDMD in the specific facility; and
• 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 law and regulations.

The Guidance further states that entities should develop and publicize rules for the use of OPDMDs by individuals with disabilities, which may include identifying specific locations, terms, or circumstances where the devices cannot be accommodated and requiring the user to operate the device at the speed of pedestrian traffic.

Finally, the Guidance explains that entities accommodating one or more types of OPDMDs are allowed to ask the person using that device to provide “credible assurance” that the device is used because of a disability.  However, a mere verbal statement that a device is required due to a mobility impairment must be taken as credible assurance unless the individual is observed doing something that contradicts such assurance (however, the fact that a person is able to walk for short distances does not necessarily contradict an assurance of a mobility disability).