
DISABILITY RIGHTS ADVOCATES FOR TECHNOLOGY
(A 501 (c) (3) Public Charity)
Federal Tax ID 55-0877645
Website: www.draft.org
314-965-4938
June 30, 2008
Disability Rights Section, Civil Rights Division
US Department of Justice
1425 New York Ave NW, Suite 4039
Washington, DC 20005
Re: CRT Docket No. 106 Non-Discrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities.
Disability Rights Advocates for Technology "DRAFT" represents people with disabilities who refuse to be defined by their disability and whose passionate enthusiasm for participating in life's activities is supported by Universal Design and new and emerging technologies.
The rules as proposed in this NPRM will have a dramatic and lasting impact on individuals with disabilities and our society as a whole for decades to come.
We welcome the opportunity to provide comments to the United States Department of Justice at this time on newly proposed rules and questions regarding wheelchairs and other power driven mobility devices.
We view The Department's attempt, to clarify and further protect the rights of individual disabilities who are using universally designed technology solutions to enhance their quality of life and extend their independent living, as having been handled clumsily and poorly drafted resulting in definitions which will further confuse public accommodations and commercial facilities and ill serve individuals with disabilities and the American public as a whole.
We ask that The Department adopt the following which will provide a timeless standard and further clarity to regulations intended to implement the law and be in keeping with existing federal law and favored policy benefiting people with disabilities as well as our entire society.
Sincerely,
Jerry Kerr
President
Disability Rights Advocates for Technology
500 Fox Ridge Road, Saint Louis, Missouri 63131
Definitions:
Indoor Assistive Mobility Devices:
Shall mean any assistive mobility device designed to be usable indoors which meets the scoping requirements of the ADAAG which may be modified from time to time, (i.e.: Currently a footprint not larger than 30 inches in width and 48 inches in length and weigh not more than 600 pounds when occupied) and are not propelled by fossil fuel powered engines.
This definition would be inclusive of manual and power driven wheelchairs, scooters, walkers, crutches, canes, braces, EPAMD's, or any other item, piece of equipment which is used to increase, maintain, or improve the functional capabilities of the individual with a mobility related disability.
Outdoor Assistive Mobility Devices:
Shall mean any assistive mobility device designed with a primary purpose of outdoor use whether or not meeting the scoping requirements of the ADAAG and whether manually propelled or powered by engines powered by batteries, fossil, or other fuels. This definition would be inclusive of golf carts, bicycles, tricycles, or any other mobility aid designed to operate in areas without defined pedestrian routes.
§ 35.137 Mobility devices
(a) Use of indoor assistive mobility devices:
A public entity shall permit individuals with mobility impairments to use indoor assistive mobility devices in any areas open to pedestrian use.
(b) Outdoor Assistive Mobility Devices:
A public entity shall make reasonable modifications in its policies, practices, and procedures to permit the use of Outdoor Assistive Mobility Devices by individuals with disabilities in the outdoor environment unless the public entity can demonstrate that the use of the device is not reasonable or that its use will result in a fundamental alteration of the public entities service, program, or activity.
(c) Development of policies permitting the use of Outdoor Assistive Mobility Devices:
A public entity shall establish policies to permit the use of outdoor assistive mobility devices in the outdoor environment by individuals with disabilities when it is reasonable to allow an individual with a disability to purchase or participate in a service, program, or activity.
Whether a modification is reasonable to allow the use of an outdoor assistive mobility device by an individual with a disability shall be determined based on;
• The dimensions, weight, and operating characteristics of the device.
• The actual risk of potential harm to others by the operation of the Outdoor Assistive Mobility Device.
• The actual risk of harm to the environment or natural or cultural resources or conflict with federal land management laws and regulations in relation to other permitted means of mobility such as horseback
(d) Obligation to stow Outdoor Assistive Mobility Device
A public entity shall be under no obligation to stow an Outdoor Assistive Mobility Device when not in use.
(e) Inquiry into the use of Assistive Mobility Devices.
A public entity may ask a person using an Indoor Assistive Mobility Device, or an Outdoor Assistive Mobility Device if the mobility device is needed due to the person's disability. A public entity shall not ask a person using a mobility device questions about the nature or extent of the person's disability.
(f) Behavior
A public accommodation may prohibit an individual's use of an assistive mobility device if the individual is operating the device in a manner which poses a direct threat to the safety of others that cannot be eliminated by modifications in its policies, practices, and procedures or if the individual's behavior in the operation of the device causes a fundamental alteration of the nature of the service that the public accommodation provides.
Responses to questions posed by DOJ related to Assistive Mobility Devices:
Question 8 (page 25)
"Please comment on the proposed definition of other power-driven mobility devices. Is the definition overly inclusive of power-driven mobility devices that may be used by individuals with disabilities? The Department's proposed regulatory text on accommodating wheelchairs and other power-driven mobility devices is discussed in § 35.137 of the section-by-section analysis."
The Department's proposed categorization and definitions of assistive mobility devices are fundamentally flawed and should focus solely on the design and operating characteristics of an assistive mobility device i.e. whether it's designed to be usable indoors or its primary design purpose is for outdoor use, and if the device meets the size and weight scoping requirements of the ADAAG.
Rather than adopting a definition which is not supported by federal law The Department should adopt a category of "Outdoor Assistive Mobility Devices" defined as "
any assistive device designed with a primary purpose of outdoor use whether or not meeting the scoping requirements of the ADAAG and whether manually propelled or powered by engines operate on batteries, fossil, or other fuels. This definition would be inclusive of golf cars, bicycles, tricycles, or any other mobility aid designed to operate in areas without defined pedestrian routes."
Question 12 (page 32)
"As explained above, the definition of "wheelchair" is intended to be tailored so that it includes many styles of traditional wheeled mobility devices (e.g., wheelchairs and mobility scooters). Does the definition appear to exclude some types of wheelchairs, mobility scooters, or other traditional wheeled mobility devices? Please cite specific examples if possible."
The Department should adopt definitions in keeping with existing federal law and favored policy benefiting people with disabilities and our society as a whole. The 1973 Rehabilitation Act, as amended in 1998, defines an assistive technology device as "any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, which is used to increase, maintain, or improve functional capabilities of individuals with disabilities".
Rather than attempting to modify the definition of a wheelchair to include things that are not wheelchairs The Department should adopt a category of Indoor Assistive Mobility Device, defined as:
Any assistive mobility device designed to be usable indoors which meet the scoping requirements of the ADAAG which may be modified from time to time, (i.e.: Currently a footprint not larger than 30 inches in width and 48 inches in length and weigh not more than 600 pounds when occupied)and are not propelled by fossil fuel powered engines.
This definition would be inclusive of manual and power driven wheelchairs, scooters, walkers, crutches, canes, braces, EPAMD's, or any other item, piece of equipment which is used to increase, maintain, or improve the functional capabilities of the individual with a mobility related disability."
An attempt by The Department to define assistive devices beyond that which is provided for in The 1973 Rehabilitation Act As Amended in 1998 can only result in the narrowing of rights of individuals with disabilities and inhibit the use of Universal Design and new technologies in improving the quality of life of people with disabilities, extending their independent life and providing economic benefits to our society as a whole.
In 1991 when publishing the first regulations implementing the ADA US Attorney General Richard Thornburgh consistently made reference to the fact that there would be no exhaustive list of devices and services because any attempt to do so would eliminate the new devices that will become available with new and emerging technology.
After reviewing the current NPRM and the sections applicable to EPAMD's the wisdom of Attorney General Thornburgh has never been more apparent.
Question 13 (page 32)
"Should the Department expand its definition of wheelchair to include Segways®?"
Segways should be classified identically to a wheelchair. The definition contained in federal law, The 1973 Rehabilitation Act as Amended in 1998, is inclusive of the Segway.
By adopting the following category The Department will provide a timeless standard and further clarity to regulations intended to implement the law and focus attention on the behavior of individual users.
Indoor Assistive Mobility Devices:
Any assistive mobility device designed to be usable indoors which meet the scoping requirements of the ADAAG which may be modified from time to time, (i.e.: Currently a footprint not larger than 30 inches in width and 48 inches in length and weigh not more than 600 pounds when occupied)and are not propelled by fossil fuel powered engines.
This definition would be inclusive of manual and power driven wheelchairs, scooters, walkers, crutches, canes, braces, EPAMD's, or any other item, piece of equipment which is used to increase, maintain, or improve the functional capabilities of the individual with a mobility related disability
Question 14 (page 32)
"Are there better ways to define different classes of mobility devices, such as the weight and size of the device that is used by the Department of Transportation in the definition of "common wheelchair"?
We believe that the following method of defining assistive mobility devices fundamentally complies with federal law and favored policy benefiting individuals with disabilities and our society as a whole.
Indoor Assistive Mobility Devices:
Any assistive mobility device designed to be usable indoors which meets the scoping requirements of the ADAAG which may be modified from time to time, (i.e.: Currently a footprint not larger than 30 inches in width and 48 inches in length and weigh not more than 600 pounds when occupied)and are not propelled by fossil fuel powered engines.
This definition would be inclusive of manual and power driven wheelchairs, scooters, walkers, crutches, canes, braces, EPAMD's, or any other item, piece of equipment which is used to increase, maintain, or improve the functional capabilities of the individual with a mobility related disability.
Outdoor Assistive Mobility Devices:
Shall mean any assistive device designed with a primary purpose of outdoor use whether or not meeting the scoping requirements of the ADAAG and whether manually propelled or powered by engines operate on batteries, fossil, or other fuels and be inclusive of golf cars, bicycles, tricycles, or any other mobility aid designed to operate in areas without defined pedestrian routes.
Question 15 (page 32)
"Should the Department maintain the non-exhaustive list of examples as the definitional approach to the term "manually powered mobility aids"? If so, please indicate whether there are any other non-powered or manually powered mobility devices that should be considered for specific inclusion in the definition, a description of those devices, and an explanation of the reasons they should be included."
The Department should continue to follow the lead of former
US Attorney General Richard Thornburgh who in 1991 consistently stated that there would be no exhaustive list of devices and services because any attempt to do so would eliminate the new devices that will become available with new and emerging technology.
Question 16 (page 32)
"Should the Department adopt a definition of the term "manually powered mobility aids"? If so, please provide suggested language and an explanation of the reasons such a definition would better serve the public. The proposed regulation regarding mobility devices, including wheelchairs, is discussed in the section-by-section analysis for § 35.137.
By adopting our proposed categories for assistive mobility devices any need for further defining "manually powered mobility age" would be moot.
Question 17 (page 37)
"Are there types of personal mobility devices that must be accommodated under nearly all circumstances? Conversely, are there types of mobility devices that almost always will require an assessment to determine whether they should be accommodated? Please provide examples of devices and circumstances in your responses."
Indoor Assistive Mobility Devices are examples of the types of personal mobility devices that must be accommodated under nearly all circumstances.
Outdoor Assistive Mobility Devices should be accommodated if they are of a size and weight that meet the scoping requirements of the ADAAG, their operation would not pose an actual risk of potential harm to others.
Question 18 (page 38)
"Should motorized devices that use fuel or internal-combustion engines (e.g., all-terrain vehicles) be considered personal mobility devices that are covered by the ADA? Are there specific circumstances in which accommodating these devices would result in a fundamental alteration?"
Motorized devices that use internal combustion engines should be considered personal mobility devices covered by the ADA and their use should be permitted by the d
evelopment of policies creating those conditions which would permit the use of Outdoor Assistive Mobility Devices.
A public entity shall establish policies to permit the use of outdoor assistive mobility devices in the outdoor environment by individuals with disabilities when it is reasonable to allow an individual with a disability to purchase or participate in a service, program, or activity. Whether a modification is reasonable to allow the use of an outdoor assistive mobility device by an individual with a disability shall be determined based on;
• The dimensions, weight, and operating characteristics of the device.
• The actual risk of harm to others by the operation of the Outdoor Assistive
Mobility Device.
• The actual risk of harm to the environment or natural or cultural resources or conflict with federal land management laws and regulations in relation to other permitted means of mobility such as horseback
A public entity should be under no obligation to stow an Outdoor Assistive Mobility Device when not in use.
Question 19 (page 38)
"Should personal mobility devices used by individuals with disabilities be categorized by intended purpose or function, by indoor or outdoor use, or by some other factor? Why or why not?"
Assistive mobility devices should be categorized by their design and operating characteristics which determine the areas appropriate for their use. Assistive mobility devices should be categorized in one of the two following categories:
Indoor Assistive Mobility Devices:
Shall mean any assistive mobility device designed to be usable indoors which meets the scoping requirements of the ADAAG which may be modified from time to time, (i.e.: Currently a footprint not larger than 30 inches in width and 48 inches in length and weigh not more than 600 pounds when occupied) and are not propelled by fossil fuel powered engines.
This definition would be inclusive of manual and power driven wheelchairs, scooters, walkers, crutches, canes, braces, EPAMD's, or any other item, piece of equipment which is used to increase, maintain, or improve the functional capabilities of the individual with a mobility related disability.
Outdoor Assistive Mobility Devices:
Shall mean any assistive device designed with a primary purpose of outdoor use whether or not meeting the scoping requirements of the ADAAG and whether manually propelled or powered by engines operate on batteries, fossil, or other fuels. This definition would be inclusive of golf cars, bicycles, tricycles, or any other mobility aid designed to operate in areas without defined pedestrian routes.
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