The Segway HT & the ADA

[QuadSquad]

<center>The Segway HT & the ADA</center>
<center>By Jerry Kerr</center>

"One day Dean Kamen saw a young man in a wheelchair struggling to get over a curb. He thought about it, and realized that the problem wasn't ineffective wheelchairs; it was that the world was architected for people who could balance. So he and his team created the IBOT™ Mobility System, a self-balancing mobility device that enables users to climb stairs and negotiate sand, rocks, and curbs. But restoring balance also accomplished something even more dramatic—it elevated them on two wheels, so they could see the world at eye level. If balancing technology could provide such benefits to people who couldn't walk, what could it do for people with full mobility?" (From the Segway LLC web site)

Life in a wheelchair isn't the worst thing that can happen to you, but that Sunday night when I first heard the name Dean Kamen on the CBS program "60 minutes" (where Mr. Kamen demonstrated what appeared to be a wheelchair which could, among other seemingly miraculous feats, go up and down stairs), I knew it was a name I would never forget.

With the introduction of the Segway HT, Dean Kamen sought to provide a new way of getting around for those with full mobility. But somewhere, somehow there seemed to be a class of people totally forgotten: those who could stand, but couldn't walk; those who were forced into wheelchairs and scooters solely because there was no other way for them to get around.

Yet this new technology did not escape the eyes of those who really needed an "electric personal assistive mobility device". Those with Multiple Sclerosis, Parkinson's Disease, Spina Bifida, Amputated limbs, Spinal Cord Injuries, COPD, Emphysema, etc. watched and understood what this magnificent new technology would mean for their lives.

People who had lost their sense of balance found that the Segway HT restored it. People without the muscular strength to walk found the HT replaced it. People who were spastic found the HT made them graceful again. People with all sorts of disabilities found the ability to again interact with society, standing face-to-face.

<center>The Critics
</center>

Even before the Segway HT was actually sold to the general public, small groups of critics organized together. Some felt like Americans would give up walking wholeheartedly and jeopardize their health, not realizing that future owners of Segway HTs would use them for three and four mile trips and some would even give up their cars for their newfound, healthier lifestyle.

Some of these early critics even attempted to rally the disabled and the elderly, instilling fears of being run down on the sidewalks by a device that traveled 12 ½ miles per hour. They never talked about (or maybe considered) the benefits that the disabled and the elderly could attain through the use of the HT. They also overlooked the fact that a human being running down the sidewalk could be traveling at speeds well in excess of 12½ miles per hour and that a Segway HT has similar operating characteristic as a person on foot, whether turning in place or standing still or moving at a walking pace. They presented absolutely no factual evidence to support their position. Unfortunately, this made little difference to some who were vocal: almost six months prior to the introduction of a Segway HT to the general public, the city of San Francisco officially banned its use on its sidewalks.

The critics’ built up their case in October 2003 when Segway LLC partnered with the Consumer Product Safety Commission to announce a voluntary recall of all the HT’s to perform a software upgrade to address safety considerations. Lost in the hype was the fact that Segway LLC is so safety conscious that what they were attempting to do was make an extraordinarily safe machine even safer. Doctors questioned the criticism in news reports, calling such a small number of injuries (while regrettable) nothing to worry about. Yet Segway was concerned that three people had sustained minor injuries when using the HT--even though those injuries were sustained when the people had operated the Segway HT in a manner cautioned against in their training and in product documentation.

In the case of the Segway HT, there is virtually no documented evidence that in the one-year of its operation (and tens or hundreds of thousands of hours of use in public), that it has posed any real danger at all, at least no more danger than actually just walking down the street. It has a speed range of zero to 12 ½ miles per hour and is completely stable and controllable—both standing still and while moving at a variety of pedestrian-like speeds.

But what does all this mean for the disabled? Surely the ADA protects the rights of people with qualifying disabilities to use aids and assistive devices even under circumstances where they are not permitted for the able-bodied general public.

Most people familiar with the ADA believe that the right of people with qualifying disabilities (those disabilities restricting their mobility) to utilize a Segway HT as their mobility device is fully protected. Yet others make claims that because it does not meet the definition of a “common wheelchair,” its use by the disabled is not protected. But why would they attempt to prevent the use of an assistive device that is so beneficial, not only physically but also mentally to the disabled who can make use of it?

<center>Protections under the ADA</center>

In 1990 when Congress passed the Americans with Disabilities Act, they did so because 43 million Americans had one or more physical disabilities. With the population of Americans growing older, the number increases dramatically. These Americans with disabilities had historically been discriminated against and this discrimination persisted in many areas: employment, housing, public accommodations, education, transportation, recreation, access to public services and many others. People with disabilities are the single largest minority group in the United States and Congress sought to provide them with the same civil rights protection extended to other minorities.

The opportunity to become a member of this particular minority group is unlike any other. For every American, membership is just one misstep and a heartbeat away.

The Justice Department was charged with writing regulations that would ensure the implementation of the act. The Department of Transportation was charged with writing regulations to implement areas that dealt with public transportation and the Access Board was to develop and maintain accessibility requirements for the built environment, transit vehicles, telecommunications equipment, and for electronic and information technology. They were also charged with providing technical assistance, training and enforcement of these standards. In 1991 they published the ADA Accessibility Guidelines, and the ADA AG for Transportation Facilities, they also published the ADAAG for transportation vehicles. The Department of Transportation adopted the guidelines for transportation facilities and vehicles as enforceable standards in its ADA regulations and the Department of Justice adopted the ADAAG for its use.

In 1991 in publishing the first regulations implementing the ADA, the Attorney General consistently made reference to the fact that there would be no exhaustive list of devices and services because an attempt to do so would omit the new devices that will become available with emerging technology.

The ADA requires places of public accommodation to make modifications in their policies and practices and procedures to accommodate the disabled. These places may have some policy prohibiting the use of any assistive device (the HT or even two wheeled walkers) by the general public, but that policy would have to be set aside for those with a qualifying disability.

Under the ADA it would be permissible to prevent the use of an assistive device--if it endangered those around it. That danger also must be real and not imagined. But that danger must be related to the device and not to the behavior of the operator. People with disabilities are hardly the type who would ever exhibit dangerous behavior in the operation of the HT.

But what if they did? Anyone, whether disabled or able-bodied who would operate any mobility aid in a dangerous manner could be removed from the venue. People with disabilities who exhibit dangerous behavior are not protected. That does not mean, however, that someone could make a similar assumption about another disabled HT operator based upon the actions of the one who exhibited bad behavior.[/

<center>“Common Wheelchair”</center>

The ADAAG for those using mobility devices is very important. In the establishment of these guidelines, a minimum standard of expectation for access for those utilizing a wheelchair or other mobility aid, is assured. There is only one place in any federal regulation where there is found a definition of a "common wheelchair" and that is in the "ADA AG for Transportation Vehicles". Remembering the mission of the Access Board, it is abundantly clear the only reason this definition exists there is to allow for some standard to be developed to be utilized in the design and building of transportation facilities and vehicles (i.e. a device that would fit upon a 30 in. by 48 in. lift platform and not weigh in excess of 600 lbs. when occupied). This definition also refers to a common wheelchair or mobility aid as having three or four wheels.

Apparently in the 1980s there were people with disabilities or claiming to have disabilities who were utilizing six wheel gasoline powered all-terrain type vehicles claiming them as mobility aids. The National Park Service seeking to prevent their use sought a definition of a mobility aid as that having four wheels and for use indoors, thus excluding polluting internal combustion engines. In later years with the popularity of the three wheeled scooters the definition was expanded to include them. But if one were to use this definition to exclude the Segway HT, then it would be equally permissible to exclude the iBOT wheelchair and dozens of other power wheelchairs on the basis that they have six wheels! It is important to remember that this definition occurs only in the "ADA AG for Transportation Vehicles" it does not appear in the ADAAG. Even the Department of Transportation in publishing their Final Rule 49 CFR parts 27, 37 and 38 refers to the definition of "wheelchair" in the context of "i.e., a wheelchair that fits on a 30 in. by 48 in. lift platform and does not weigh more than 600 lbs. when occupied".

For those who seek to prevent the use of the Segway HT on the basis that it does not meet the definition of a "common wheelchair" by those with qualifying disabilities, they are correct in their assertion that it does not meet that definition as contained in the ADAAG for transportation vehicles. But it does not need to meet this definition to be protected as an assistive device under the ADA. There are no scoping requirements for mobility aids such as canes, crutches, walkers (some with two wheels) but they still must be accommodated under the ADA. The ADA in its text does not define what an assistive device is, it does not require it to be an FDA approved medical device, and there is no case law which would allow the exclusion of a two wheeled device from being utilized as a mobility aid by those with a qualifying disability.

In the text of the ADA it mentions wheelchairs. It doesn't mention canes, crutches, service animals etc. The reason a wheelchair is mentioned is because if you establish access and policies which will accommodate those in wheelchairs, they will also accommodate those having other mobility limiting disabilities. A lift or ramp can be utilized by those with canes and crutches and walkers and Segway HTs who cannot ascend stairs.


<center>Remedies for Violation</center>

If you happen to be one of those who are clamoring to get into the courthouse to collect all the punitive damages that you're going to get from the offending party, you're going to find this less than appealing. But, if you're seeking change that will benefit others that follow in your footsteps, or should I say follow in your wheel prints, then read on.

In actuality there are a number of ways to affect a change in policy or accessibility, including a lawsuit. But lawsuits take time and money. Many have been successful initially attempting to reason with those in positions of authority with the organization. Additionally letter writing campaigns, letters to the editor and using other methods to influence public opinion to help sway them. If this more subtle approach isn't effective then a lawsuit may be the only option left.

You always have the right to file a private lawsuit, but under the ADA you would not be entitled to receive compensatory or punitive money damages, and there are no civil penalties. By filing a complaint with United States Department of Justice you would have the prospect of them either trying to effect change through mediation, or through actually bringing suit against the offending party in federal court.

If the attorney general found your case had merit and chose to file suit on your behalf the court has the option of awarding you compensatory damages, including out-of-pocket expenses and damages for pain and suffering, but no punitive damages. They also can assess a civil penalty of up to $55,000 for a first violation, and up to $110,000 for any subsequent violation. Much more information is available on the Department of Justice's ADA website at www.ADA.gov.

There has never in history been a time when people with disabilities had so much to look forward to. New technology has meant the introduction of products never dreamed about. These products can help restore mobility, dignity, and in some cases even the will to live.

As our population continues to age, the prospects of the able-bodied joining the ranks of the disabled increases dramatically--particularly in the areas of mobility. The interests of the disabled will become more important not just because it’s the right thing to do, or even the moral thing to do, but also because there will be many of us.

In the last five years, one company, not driven by profit motives as much as by benefiting their fellow man, has brought us not only the iBOT mobility system (wheelchair), but also the Segway HT--and who knows what else is on the horizon.

In order to ensure a brighter future for all of us, we must be proactive in reaching out to others. We must help them understand the need to embrace the things they do not fully understand, have never seen before, or have even contemplated existing. We can help millions have a much fuller and more mobile life.

[BruceWright]

BRAVO for spelling all this out so clearly and succinctly, Jerry. I hope that you use this document in other fora. I'd love to see this as an opinion piece in newspapers nationwide.

The world needs to know, and start thinking about how new technologies will benefit them. As others have said before, the able-bodied should be called the "temporarily abled", as God-willing we will ALL live to see a time when we will need all the protections of the ADA.

I'm VERY glad to know that when that day comes for me, I'll be able to glide with a smile. I only hope that I'll actually be allowed to.

-Bruce Wright

Segway: Vehicle of Dream

[SegwayBill]

Jerry
Thank you, for putting forth the time and effort to pen this!



Bill

[SegwayUtah]

Jerry,

Wow.

The Segway HT has made a huge difference in my life. It has allowed me to be more social, get out and breathe fresh air (instead of sitting in a car), and save a lot of money. Riding my HT is also a blast, and I look forward to my commutes.

For those who are not quite so fully abled among us (yet can still safely operate a Segway HT), I can't begin to imagine the difference it makes emotionally, phsycially, psychologically, etc.

I have seen the freedom that mobility with an HT has brought to a number of kind, elderly people. I have seen people with ailments which keep them from walking long distances get on an HT--and I have seen them simply light up. I have seen their family members get super-excited about it too. It has got to be a hard thing to not be able to move about freely with one's own legs as far and long as one would desire.

As I understand it, the Segway HT was not designed, manufactured, or marketed as a medical device. The iBOT is the self-balancing medical device, which is probably usable even by persons missing three limbs. I had never thought about the large number of people who would rather walk awkwardly for as long as they could than get in a wheelchair--there are some serious health (and mental) benefits that standing up and moving around could provide them.

I do believe that our friends who are less-than-fully-abled should be protected and defended and able to use any assistive device which they can safely operate and which does not create a real hazard. I applaud you on your quest. We have talked a lot about the need to lend a hand of support to others who share our goals--the wheelchair-bound community who struggles for better sidwalks, for instance. This is probably one of those areas which, if done sensibly, would meet that goal.

Now, the Segway HT is not a medical device. It would not be a sane thing to put wheelchair-bound disabled persons on a Segway HT because they would not be able to mount, dismount, and/or operate it safely: it would be a hazard to them. But for those who can operate an HT safely, and just need that amazing balacing technology to restore their mobility, well . . . I rejoice with them in their new-found mobility and vitality.

And I hope they buy some extra batteries--if I rode my HT all the time where I walk now, I would certainly need an extra set or two.

Chris

[SegwayUtah]

BTW, it's really important to remember that the HT is not a wheelchair. Those not-quite-fully-abled persons who use them are using them like a cane or a staff--as an assistive mobility device.

If a person can't slow down and safely dismount their HT when their battery approaches depletion or in a safety-shutdown situation, they need to understand that the HT is not magical. What would they do in that kind of situation? It may not be wise to ride an HT for them in rugged terrain. It may be good for getting around their home. Etc. Etc.

If I remember right, the requirements for safely operating an HT include something like:
1. The ability to walk up and down stairs without assistance
2. The ability to shift one's weight forwards and backwards while holding onto the control shaft
3. Good judgement

Just some things to remember. As for you, Jerry, and others in the disabled community, we here are glad to be called your friends.

Chris

[X-man]

Well wrtitten and well said, Jerry. I, for one, have been considerably more active since the Segway entered my life. It has been a blessing in disguise as I did not realize just how utilitarian it would prove to be. I take it almost everywhere I go, including the theater. Parked it it the hat check room. I even do my grocery shopping on the device.
I have been to places I have never been before within the city because walking there was out of the question.
It's too bad the CTA is refusing the Segway on their trains at this time. They are following the more than two wheel device dictate you alluded to in your writing and they won't even hold a meetiing to discuss the matter. We are trying to change that but it is slow in coming.

The Lone Glider!

[fredkap]

Chris,

Please be aware that several of the people using the HT as a mobility device were resigned to being in a wheelchair prior to the HT's existance and their knowledge that it could work for them. Some of these people could handle barely 50 feet before being exhausted others don't have a proper sense of balance but the HT gives them the balance they lack. While many of us are familiar with people that perhaps due to age must lose a drivers license and we are aware as to how traumatic that is, it is even more traumatic for a person to be resigned to the use of a wheelchair for their mobility. For the appropriate people, the Segway HT is a true miracle device.

Our community is fortunate to have Jerry articulate our thoughts in such an eloquent fashion.

Fred

[SegwayUtah]

Fred,

I'm sorry: when I said "wheelchair-bound," I meant those who today are "headed" for a wheelchair because they cannot safely use a Segway HT or any other assistive device. The iBOT will be an amazing assistant for them.

For those that can safely operate a Segway HT (but are not-quite-fully-abled because they can't walk long distances without getting exhausted, or need the extra balance, etc.), they deserve to use the best assistive device for them.

Chris

[BruceWright]

Yes, I think there were people for whom a wheelchair WAS the only option until the Segway. I don't have to imagine how it feels, I've met the people, and I can see the difference on their faces.

-Bruce Wright

Segway: Vehicle of Dream

[jrmiller]

First Jerry K, thank you for the short education on the HT and the ADA etc., I am going to make a copy and have it laminated and keep it in my HT bag for reference. Second, Entil-Zha, XMan, Shawnee, SEgwayUtah, BruceWright, You all second my feeelings about a new found freedom. My emotional life was on a downward spiral (falling and breaking bone just walking in the back yard) and physically not doing too well either. Along comes the SEgwayHT and as you all say, a whole new world just opened for me and those around me that I had been depending upon emotionaly and physically. WE are in that nitch group that falls inbetween the abled and wheelchair bound diasbled. The group is growing as the informtion regarding the use of the HT's is being diseminated and public awareness becomes more common place. The ball is rolling so let's keep it on a forward movement and give it a shove when it is necessary. SEG-ON SEG-RIGHT JR