On March 15, 2011, new Department of Justice rules took effect, specifying the “other power-driven mobility devices” (OPDMD) that could 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 facility.
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Saturday, February 19, 2011
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DISCLAIMER: The following text is intended to clarify a new federal agency ruling based on general observations and questions from land managers. It should not be construed as legal advice, agency policy, or official guidance. American Trails does not guarantee the accuracy, relevance, timeliness, or completeness of this information. Your corrections or additions to help update this material are welcomed.
Q. What does the rule require?
A. The entity shall make reasonable modifications in its policies, practices, or procedures to permit the use of other power-driven mobility devices by individuals with mobility disabilities, unless the public entity can demonstrate that the class of OPDMD cannot be operated in accordance with legitimate safety requirements that the public entity has adopted based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities. In determining whether a particular OPDMD can be allowed in a specific facility as a reasonable modification an entity shall consider the issues listed in the Assessment Factors.
Q. Do trail managers have to do anything? Can they just respond if anyone asks?
A. It is always an option to do nothing. However, in that case any person who has a mobility disability would be allowed to use an OPDMD.
Q. Where is the burden of proof— on the trail manager, or on the trail user?
A. The burden of proof is on the trail manager. A visitor with a mobility disability has the right to expect to be able to use an OPDMD unless the trail entity has completed an assessment that has determined that the class of other power-driven mobility device cannot be operated in accordance with legitimate safety requirements or one or more of the assessment factors in the rule.
Q. Can't a visitor argue that they must use a certain vehicle to use trails with their specific disability, and that the trail manager can't prevent their access?
A. No. The assessment factors are designed to assist managers in determining whether allowing the use of a particular mobility device in a specific facility is reasonable. Thus, the focus of the analysis must be on the appropriateness of the use of the device at a specific facility, rather than whether it is necessary for an individual to use a particular device.
Q. Does the rule apply to natural surface trails as opposed to wide, paved hard-surfaced trails?
A. The rule makes no distinction between dirt and pavement, or even between indoors and outdoors.
Q. Who does this new rule apply to?
A. The Department of Justice (DOJ) has amended its regulation implementing Title II and Title III of the 1990 Americans with Disabilities Act (ADA). Title II applies to State and local governments, referred to as public entities, and Title III applies to entities under private funding that are open to the public, which are referred to as public accommodations. The only private entities not included under Title III are religious organizations and private clubs that are not open to the public.
The final rule also amends the existing Title II and Title III regulations to make them consistent with current policies and published guidance, to reflect the Department's experience since the regulations were first published in 1991, and to address and respond to comments received from the public in response to the Department's 2008 Notice of Proposed Rulemaking (NPRM).
Q. What are the "public entities" and "public accommodations" the rule applies to?
A. 28 CFR 35.104 (Title II) defines “Public Entity” as (1) Any State or local government; (2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (3) The National Railroad Passenger Corporation, and any commuter authority. 28 CFR 36.104 (Title III) defines a public accommodation as a facility, operated by a private entity, whose operations affect commerce (is open to the public) and falls within at least one the twelve listed categories. On that list is (9) A park, zoo, amusement park, or other place of recreation. Therefore a trail that is operated by any private entity and is open to the public is a public accommodation and the rule applies to them.
Q. What about nonprofit organizations that manage trails? What if the land is actually owned by another entity but operated by a nonprofit? What about private groups such as those operating equestrian facilities or OHV parks?
A. Whether it is a nonprofit organization or a commercial establishment, both are considered to be public accommodations and the rule applies to both.
Q. Would publicly funded trails on private land also fall under the DOJ rule? In our state 95 percent of the public trails run across private land.
A. Yes.
Q. Is a large homeowners association (HOA) with trails, subject to these requirements?
A. The key question is whether the trail is open to the public. If it is never open to the public, it would be "members only" and this DOJ rule would not apply. If it is open to the public, it would be under Title II and the OPDMD rule would be an issue.
Q. Does the DOJ ADA rule also apply to Federal agencies?
A. The National Forest System, the National Park Service, the US Fish and Wildlife Service, and the other Federal land management agencies are not under the 1990 ADA and therefore the ADA rule does not apply directly to them. Federal agencies are under the 1968 Architectural Barriers Act (ABA) requiring new or altered facilities to comply with the accessibility guidelines and the 1973 Section 504 of the Rehabilitation Act requiring qualified people with disabilities not be denied participation unless allowing that participation would result in a fundamental alteration of the program.
Q. Some of our trails are on US Forest Service managed land. How do the travel management designations affect National Forest trails?
A. Under US Forest Service regulations, any device that meets the requirements of the wheelchair definition is allowed to be used wherever foot travel is allowed. All self-propelled motorized devices that do not meet the definition of a wheelchair are considered to be motor vehicles of various classes. During travel planning the effects of classes of motor vehicles on public safety, and cultural and natural resources were considered across US Forest Service managed lands. Those routes and areas found to have acceptable impacts for various classes of motorized vehicles were designated and are shown on the National Forest or Grassland’s Motor Vehicle Use Map (MVUM). The designated routes on the MVUM may be used by all people for the classes of vehicles specified. Motor vehicle use inconsistent with these designations is prohibited for everyone.
Therefore the US Forest Service designation process has assessed the lands for use by various classes of motorized devices in accordance with the DOJ assessment factors and has determined where which classes may be used and where such use is not allowed. The prior-notice requirement information about where certain vehicles are allowed on National Forests and Grasslands are met through the online information postings, and also available upon request.
Q. What about "share the road" segments of trail on state highways that do not allow the use of unlicensed motor vehicles?
A. DOJ does not address highways specifically. However, it seems unlikely that a state department of transportation would allow use of unlicensed motorized devices on roads where only street legal vehicles may be operated. Wheelchairs as defined by DOJ would be allowed where walking on the shoulder or on the edge of the road is permitted. If the trail route is completely off the pavement, some local and state governments have regulations allowing use of ATVs or snowmobiles within the road right-of-way on certain routes.
Q. How can we find time to assess the 24,000 miles of trails we operate of many different types and dozens of different uses?
A. Some agencies that manage big trail systems are writing internal guidelines to help individual park and trail managers do assessments for just the trails within their jurisdiction. If the manager already has a designation for the types of uses on their trails, it might not need a "new" policy but rather a clarification of existing policy.
Q. How much assessment does an agency have to do?
A. There is no specific “assessment” process in the DOJ rule. It is likely your trail already has designations regarding which classes (types) of motor vehicles can be used on them and where, if any. Those designation determinations were likely made based on some factors. What this DOJ rule requires is that those past determinations be reviewed. How were those designations determined, what factors made it clear that specific types of motor vehicles were not appropriate for use on a particular trail or trail segment. You will likely find that one or more of those factors are the same as one or more of the factors DOJ lists. If so, that original "assessment" document becomes the basis for continuing to deny use of that type(s) of motor vehicle, by anyone, including by people who have mobility disabilities.
Q. There seems to be inadequate time to address the requirements of the rule which are just now being discussed.
A. American Trails did publicize the proposed rule in 2008, and along with other organizations submitted comments to DOJ. Then DOJ posted the final language of this rule on July 26, 2010, and this final language was also publicized. However, it seems not to have dawned on many of us how far-reaching the impacts would be. Many people seemed to focus on use of Segway-type devices rather than the wide range of motor vehicles that are included in the DOJ’s definition of OPDMDs.
Q. If a site has an accessible trail that offers similar experiences to the rest of the site, can it be the designated area for all OPDMD use?
A. While that sounds like a reasonable strategy, the law requires that people who have disabilities not be denied participation or access to an area unless it would fundamentally alter that program. So you can only limit the use of OPDMDs to one trail if the assessment factors prevent the use of OPDMDs on the other trails. You would still need to ensure that the trail could be managed for specific classes of OPDMD based on the assessment factors. You would also need to assess all of the trails, and to be sure there is a specific reason a use is excluded based on one or more of the assessment factors.
Q. Some state forests are zoned for either motorized or nonmotorized trail use in an effort to address conflict, resource, and safety issues. Would the non-motorized trails in this type of setting still need to be individually assessed?
A. Yes, the DOJ rule does not state that an entire trail system or park can be considered a single "facility" or "area." But it doesn't define "trail" very specifically either. DOJ says the land manager should "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..."
Q. What kinds of credentials does someone need to complete the assessment? Can the local trail manager complete the assessment?
A. DOJ does not specify any qualifications for performing assessments. Managers of public facilities do routinely deal with a wide range of risk management and compliance issues. This is probably no different from the very specific regulations land managers write for everything from hang glider launching to uses allowed on ball fields.
Q. Is there a formal process for documenting and submitting trail assessments? Who comes out to check our assessments?
A. DOJ makes no requirement to submit documentation to the DOJ or anyone else. Nor is there any provision for checking or approving assessments or any other aspect of compliance with the rule.
Q. We've got a policy drafted. How should we run it, or certain aspects of it, by DOJ?
A. Anyone is welcome to contact DOJ with questions. However, there is not any kind of "pass/fail" criteria for regulations or assessments related to OPDMD. If there is a large volume of inquiries it seems unlikely that DOJ would review individual policies.
Assessment Factor (i) “The type, size, weight, dimensions, and speed of the device"
Q. It seems that where a motorized vehicle is used, that it would be difficult to rationalize not permitting Segway-type vehicles having less impact?
A. This really puts the burden on land managers to sort out what kinds of vehicles do they believe could be operated safely and without risk of serious harm. So you are concerned about possible snowmobile use, you might include those specific vehicles in your regulations. Or you could conceivably prohibit "internal combustion engine-powered vehicles," or specify the maximum width, etc. If you believe you can allow the use of Segways, but not other motorized devices/vehicles, you would need to distinguish between their impacts when you address the safety or environmental or other DOJ assessment factors.
Assessment Factor (ii) "The volume of pedestrian traffic (which may vary at different times of the day, week, month, or year)"
• No answers available on this factor.
Assessment Factor (iii) "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)"
Q. Does this factor ONLY apply to indoor activities? We are looking to use this to assess trails since trails are designed for specific purposes and have distinct operational characteristics.
A. While assessment factor iii does not state it only applies to indoor areas/activities, the emphasis appears to be on square footage, and density and placement of stationary items and places to store the OPDMDs which would lead one to think more about indoor spaces.
Assessment Factor (iv) "Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility"
Q. We are concerned about the high speeds that many motor vehicles are capable of as a safety issue.
A. The NRPM states "public entities should also consider the minimum speeds at which a device can be operated and whether the development of speed limit policies can be established to address concerns regarding the speed of the device."
Q. Can you say that a speed limit is necessary for safety of pedestrians on the trail?
A. Trail managers routinely limit the speed of bicycles even on paved bikeways. For instance, Fairmont Park in Philadelphia specifies that "All trail users shall observe a seven (7) miles per hour speed limit on all Park trails."
Q. Our agency uses vehicles (e.g. motorized carts, ATVs, tractors, road graders, trucks) for maintenance purposes. Can we prohibit disabled visitors from using these same vehicles based on safety factors?
A. In this rule DOJ does not distinguish between administrative activities and access by persons with disabilities. Entities do allow emergency access by ambulances or helicopters in areas not open for any motorized use at other times. However the DOJ preamble states that an entity can only prohibit OPDMD use by a person who has a mobility disability IF "the entity's policy does not permit the device in question on-site under any circumstances" (based on one or more of the assessment factors).
Q. We have concerns about individuals roaming the trails on motor vehicles. But at some wildlife refuges visitors are taken on electric tram tours. Could we use staff-driven vehicles for accessibility while prohibiting individuals driving their personal OPDMD?
A. The key is to ensure that "safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities." So it is up to you state those reasons in terms of actual risks real concerns and not "mere speculation."
Q. How do you determine if a safety concern is based on "actual risk"? What does that mean?
A. There are clearly reasons that trail managers don't allow motor vehicles on some trails, or allow horses but not bikes. DOJ does not give us any help in defining "safety" or "risk" and the rule is not specific to trails. They only say require that the "entity can document that it has completed an assessment."
Q. On multi-use trails which do not allow motor vehicles (because of conflict of use), and include equestrian use, there is already concern with real and perceived conflict between equestrians and mountain bikers. Would adding OPDMD make the risk of serious harm to other trail users unacceptable?
A. DOJ asks whether "legitimate safety requirements can be established to permit the safe operation" of OPDMD. The land manager would have to be able justify the decision that mixing bikes, hikers, and horses is OK, but adding OPDMD makes the trail unsafe.
Assessment Factor (v) "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"
Q. What about a conflict with State laws and regulations?
A. State land management laws and regulations may NOT be used as a reason to prohibit OPDMD use. Nor may city, county, or park district regulations be used. Apparently State parks and recreation agencies did not express concern about this in 2008 when DOJ requested comments on the proposed rule (NPRM).
Q. Many visitors and school programs count on seeing wildlife, listening to bird calls, or identifying wildflowers on the trail's edge. We think OPDMD use would harm those environmental education activities, but is that the same as harm to "natural resources?"
A. The DOJ rule has provided no specific guidelines other than what listed in the Assessment Factors. However, these would be good examples of specific program elements or resources that need protection. The challenge is to specify how the various types/classes of OPDMD would harm those resources. And again, there may be other trails under the entity's management where the same resources are not as critical.
Q. Visitors come to some trails for quiet and solitude. Others backpack many miles for a special kind of experience with nature. Could those factors be considered “cultural resources”?
A. DOJ notes that there is a "general reasonable modification requirement" which would protect against changes seen as unacceptable. Specifically, § 35.130 (b) (7) states: "A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity."
Q. Are there definitions of various vehicle types to help start the process of determining appropriate use for different vehicles?
A. Although the DOJ rule refers to them by "class of other power-driven mobility devices" it does not define a "class" of devices nor does it list which types of devices are in which "class." The US Forest Service under its 2005 Travel Management regulation created its own classes of "motor vehicles" (defined as any self propelled device that does not meet the definition of a wheelchair) which includes divisions such as a variety of types of OHVs less than 50” wide; over 50” wide; ATVs; motorized water craft of various types; motorized over snow vehicles; etc.
Q. Is this rule really about allowing Segways on trails?
A. No. DOJ had considered classifying Segways as “wheelchairs.” Then Segways would have been allowed wherever foot travel is allowed, just like wheelchairs. In the final rule DOJ determined, as is stated in the preamble of the rule, that Segways are not wheelchairs, because they were not designed primarily for people who have mobility disabilities. So DOJ classified Segways as "other power-driven mobility devices."
Q. What about golf carts and ATVs— are they allowed as OPDMDs?
A. Anything that has a motor, of any size, from motor scooters to large trucks. The OPDMD definition doesn’t limit the width, weight, horsepower, or power source of a device when used by a person who has a mobility disability.
Q. What if a visitor wants to use an ATV on one of our non-motorized trails?
A. A person who has a mobility-related disability can go on a trail in anything with a motor that can be driven, regardless of size or horsepower, UNLESS the land manager has documented that it has completed an assessment of the trail, route, or area using the DOJ assessment factors, and as the result has determined that such use is not allowed.
Q. We currently have designated trails for ATVs (vehicles defined in statute) and by default ATVs are not allowed on any other trails. Does this mean that our rules are no longer valid?
A. The question isn't what use the trail is currently designated for. It is what is that designation is based on. Was an assessment made of the trails showing that due to one or more of the DOJ assessment factors, certain classes of motorized devices cannot be used on the trail?
Q. Our agency has never allowed motor vehicles on any of our trails. Is that sufficient to prohibit motorized use by persons with disabilities?
A. If it is clear that no real “assessment” was done to determine which trail uses should be allowed, then you would have to do something more now. Look first at the basis used to determine current policy to see if that basis matches one or more of the DOJ factors. If so, that might be sufficient and you would simply need to be sure to inform the public. The DOJ rule prohibits is closing the use of types of motor vehicles without having first made a measured determination as to why.
Q. Our assessment concludes that ATVs, UTVs, and motorcycles would not be allowed on certain trails because of safety concerns. What if we have a snowy winter and someone shows up with a snowmobile? Do we need to do a new assessment to cover new vehicles?
A. Since the DOJ does not rule out any vehicle types, your policies need to specify which kinds of OPDMD could be operated safely and without risk of serious harm. This might imply either listing all of the possible vehicle types, and which are allowed and not allowed. Another approach might be to focus on "operational characteristics" such as "internal combustion engine-powered" or specify the maximum vehicle width, length, and/or weight. In any case, your policy has to be based on your assessment of the specific trails.
Q. What are the ADA requirements for public notice?
A. The information about the devices that may not be used should be posted where the public can easily access it before going to the trail. 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 ADA in Title II and Title III states: "Finally, the public entity should endeavor to provide individuals with disabilities who use other power-driven mobility devices with advanced notice of its policy regarding the use of such devices and what rules apply to the operation of these devices."
Q. Do I have to post signs on every trail about our OPDMD policies?
A. No, there is no requirement for signs to be placed on trails, but you need to give notice to the public— accessible to visitors before they arrive at the site— about what devices are allowed or not allowed to be used. The trail’s website is a good location, but also be ready to provide that information if someone requests it on the phone or in writing.
Q. If we decide to allow any devices as long as they are used by persons with disabilities, then do we have to post anything?
A. You can choose to be silent. But that essentially conveys that your policy is anybody can use any kind of vehicle. It also means you have no protection in case of problems.
Q. Does the assessment of a given facility, leading to the restriction of a certain class of OPDMD, need to be formally written and/or published somewhere?
A. The DOJ rule doesn’t require publication of the assessment process. However, if questioned, the entity would have to be able to show how they determined the clear basis upon which their decisions were based. You also need to give notice to the public, such as on the website of the trail managing entity. The requirement is that information be accessible to visitors before they arrive at the site, and about what devices are allowed or prohibited on specific trails.
Q. What suggestions would you give trail managers on ways to educate or perhaps placate other trail users who might be upset when they see people using these OPDMDs?
A. This goes beyond anything in the DOJ rule, but possibilities might include:
- While signs are not required at trailheads, it could be valuable to inform the public who may be regular trail users and will be surprised to see new devices on the trails.
- Post a clear policy on accessibility stating in a positive way the commitment to accessibility as well as the restrictions on devices.
- Make sure staff and rangers are informed and can help both disabled and non-disabled visitors.
- Enlist volunteers or trail hosts to answer questions.
Q. Does this affect trails that are already on the ground? Do we have to make special accommodations for possible use of OPDMD?
A. The DOJ rule deals with the use of current and future trails. It does not deal with the construction or reconstruction of trails, Shared Use Paths or any other facility. It clarifies that any device that meets all portions of the definition of a wheelchair (in the rule) is to be allowed to be used anywhere foot travel is allowed. And requires that OPDMDs be allowed for use by a people who have mobility disabilities unless on or more of the assessment factors precludes that use.
Q. What impact will this rule have on the design of new trails?
A. This rule is about use and does not require any trail construction or reconstruction.
Q. Our county has installed pedestrian "maze gates" or bollards at several trail access points that would not allow a regular sized wheelchair to go through. Do we have to remove them and replace them with something that would allow a 32” wide unrestricted access?
A. The original 1990 ADA (and the 1973 federal law) required that people not be denied participation just because they have a disability. So when an entity puts up a restrictive entry device on a trail that allows foot travel, it has to allow at least a 32" (the legal width of an interior door) width of clear passage either around or through the restrictive device. They do NOT have to exceed that width even though people with disabilities might use larger devices. If they don't provide that clear passage of 32", they are denying participation because the person has a disability, and that's what this DOJ rule is about— nondiscrimination.
There are a variety of gates/passage designs that allow pedestrians as well as people using wheelchairs to access an area, while at the same time keeping out the various devices or uses that are not allowed in that area. Those designs are on the American Trails website and the Forest Service Development & Technology Center.
Q. Is it true that all a person has to do is claim that they are using that device due to their mobility disability, without any other proof?
A. The DOJ rule specifies that the person can show a valid, State-issued, disability parking placard or card, or other State-issued proof of disability, as a credible assurance that the use of the other power-driven mobility device is for the individual’s mobility disability. Lacking any of those, the person may simply state that they are using that OPDMD due to a mobility disability. No one using a wheelchair or OPDMD is to be asked any questions about the nature and extent of their disability.
Q. What does "credible assurance" mean?
A. In this case "credible" means "not contradicted by observable fact." However, keep in mind that many conditions that aren't obvious, such as heart and lung disease, can greatly reduce a person's ability to walk and therefore qualify as a mobility disability. In fact 85% of people who have disabilities, their disability isn’t obvious.
Q. We are concerned about who will identify themselves as having a mobility disability, especially since managers cannot ask questions about a person's disability.
A. Managers should focus not on who has what kind of disability, but on predetermining which "classes of devices" can be allowed or prohibited on specific trails in accordance with the DOJ assessment factors.
Q. Is there a recourse if an individual uses an OPDMD in an appropriate location, but in an inappropriate manner?
A. DOJ does not address penalties for either land managers or trail users. But to help visitors follow the rules, DOJ says you "should include clear, concise statements of specific rules governing the operation of such devices."
Q. What about liability related to OPDMD use? Say a person in a golf cart collides with a horse and rider?
A. This is where the land manager is wise to look carefully at the assessment factors. Secondly, having a clear, defensible policy in place provides protection to the land manager as well as to the trail user in case of inappropriate use of a vehicle.
Q. What penalties would apply if someone tries to use an OPDMD under false pretenses (e.g. claims to have a mobility disability, but doesn’t)?
A. State and local parks typically have statutes for situations such as parking in a space reserved for persons with disabilities, or for operating an ATV illegally. It would be a question for legal staff as to whether these regulations and penalties could be adapted to OPDMD issues.
Q. Can we require a permit for persons with disabilities, and ask people to obtain one from the managing agency?
A. That might be acceptable, if you are trying to facilitate the process and if that is the way you write your policy. However you would also have to identify the classes of OPDMD allowed and prohibited so that other trail users will know that visitors with disabilities are using that OPDMD legitimately.
Q. Where can I find the full text of the actual regulations?
A. For Title II – State and local governments see:
http://www.ada.gov/regs2010/titleII_2010/titleII_2010_withbold.htm
For Title III – Public Accommodations (private entities open to the public) see: http://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_withbold.htm
Q. Where can I read the preamble to the final rule that includes all the discussion on the public comments and changes made since this issue was raised in 2008?
A. Download the files at the following Web addresses:
Title II: http://www.ada.gov/regs2010/titleII_2010/titleII_2010_fr.pdf
Title III: http://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_fr.pdf
Q. What if I want to ask questions about this rule with the Department of Justice?
A. The Department operates a toll-free ADA Information Line (800) 514–0301 (voice); (800) 514–0383 (TTY) that the public is welcome to call to obtain assistance in understanding in this rule.
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