ADA now covers the use of Segways

[MowTin]

I was all excited but then I actually read it....

"Other power-driven mobility devices" must be permitted to be used unless the covered entity can demonstrate that such use would fundamentally alter its programs, services, or activities, create a direct threat, or create a safety hazard.

I remember a bouncer at a club once tried to deny me access stating that my cane would be a safety hazard in the dark night club. Someone could trip over it.

Technically, it's true. People have nearly tripped over my cane before. So you see "safety hazard" is avery large loophole.

Fortunately, some other bouncer overruled that idiot.

Places like Disney only care about protection from lawsuits. If the ADA said you must allow Segways in then they would be covered in case of some accident involving one of their customers. They would say we were required to allow the Segway in by the ADA.

Right now, if an accident happened they could still be sued. The plaintiff could argue that the Segway should have been considered a safety hazard. The accident would prove that it is a hazard.

I think the positive here is that it's no longer an issue of "reasonable accommodation." It's more, "you have to prove that it's a safety hazard."

So, for places like Disney another lawsuit would be required.

[KSagal]

But 'proving' it to be a safety hazard is very different than saying you believe it to be a safety hazard.

Proof would be statistics, or a legally recognizable and fair comparison of dangers, like a government may run, or even an organization like the AAA.

All the studies that I have heard of, like from the US government, and other ones, show that the segway is far safer than many conveyances, and many that are already well accepted.

It would be hard to prove that segways are more dangerous than bikes, where bikes are accepted as an example.

It would be likewise hard to prove that segways are more dangerous than many mobility scooters that are accepted in many places.

You could claim that segways are more dangerous, but not likely prove it.

[Lily Kerns]

Originally Posted by MowTin

I was all excited but then I actually read it....

... I think the positive here is that it's no longer an issue of "reasonable accommodation." It's more, "you have to prove that it's a safety hazard."

So, for places like Disney another lawsuit would be required.

Good point and I missed that. I think that the "reasonable accommodation" has probably been behind the rulings that permits, etc were a satisfactory solution however unequal their application might be.

Hmmm... does that mean that when the new rulings go into effect that those permits etc are no longer valid? Nah, it will take a lot of lawsuits since now everybody has to get re-educated.

Lily

[Tarkus]

Hi all,

Reasonable accomidatin is a term used in Title I issues.

In Title III we look at "modifications in policies, practices, or procedures". At first it may appear the same but there are subtle differences..

28 C.F.R. § 36.302 - Modifications in policies, practices, or procedures

(a) General - A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.

(b) Specialties

(1) General - A public accommodation may refer an individual with a disability to another public accommodation, if that individual is seeking, or requires, treatment or services outside of the referring public accommodation's area of specialization, and if, in the normal course of its operations, the referring public accommodation would make a similar referral for an individual without a disability who seeks or requires the same treatment or services.

"fudamenntaly alter".....
If the facility is wheelchair ready than it's Segway ready. We require the same things no matter what the offenders will say.

The next route would be "direct threat".
This will be hard for Disney to prove.

C. Direct Threat
The Direct Threat doctrine is an affirmative defense to claims under Title I and Title III. Under Title III, a public accommodation can deny an individual participation in or benefit from “the goods, services, facilities, privileges, advantages, and accommodations of such entity where such individual poses a direct threat to the health or safety of others.” A "direct threat" is “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or Jservices.”

Title III entities must base their determinations of direct threats on individualized assessments. To succeed as a defense, the threat must be based on real risks, not on stereotypes, mere speculation, or generalizations about individuals with disabilities. To evaluate risks, Title III entities can rely on current medical knowledge or on the best available objective evidence. They should consider several factors including the nature, duration, and severity of the risk, the probability that the potential injury will actually occur, and the likelihood that reasonable modifications to policies, practices, or procedures will mitigate the risk.

For example, in Leiken v. Squaw Valley Ski Corp., the court held that the defendant (“Squaw Valley”)’s direct threat defense likely was not valid. Squaw Valley had a longstanding policy that banned wheelchairs because Squaw Valley believed that wheelchair users would pose a direct threat to other patrons in an emergency. The court found that Squaw Valley failed to conduct any studies or introduce any evidence to support its opinion that wheelchairs posed a greater risk the than the risk posed by others. Instead of using documented actual risks, Squaw Valley made its determination based on speculation, stereotypes, or generalizations. Thus, the court enjoined Squaw Valley from enforcing its policy because it failed to base its determination on real risks or individualized assessments.

safety than the risk posed by others. Instead of using documented actual risks, Squaw Valley made its determination based on speculation, stereotypes, or generalizations. Thus, the court enjoined Squaw Valley from enforcing its policy because it failed to base its determination on real risks or individualized assessments.

I find it hard to believe that there is a safety "smoking gun"that Disney has. They didn't break one out at the class action hearings so I don't think they do.

Or they do have the info but understand that if they were to state that a variety of people will want to file suit. The sell tours on a machine that's fundamentally unsafe .....
OSHA would love to hear that they put their employees in danger everyday .


Bottom line. Disney allows them in or it becomes a legal challenge . That was in the cards no matter what the ruling .

Either way the new regs are a huge step ahead for our cause.

Be Big,
AMAC

Originally Posted by Lily Kerns

I believe that allowing authorities to ask for a disability ID for those who use other mobility devices is also a fair and necessary step especially when, like the Segway, those devices can also be used for recreational or other purposes. I'm glad they added the personal observation option for those who do not have such ID--or don't have it with them. If your disability is not a visible one, however, carry that ID in your bag!


Lily

Where do you get such an ID?
I have plates for my car.
I have a Medicare card
I have stickers on my Segway (that i bought on eBay)
I even have a prescription from my Doctor stating that I use my Segway as a medical mobility device.

I have never heard of a disability ID

[Lily Kerns]

Originally Posted by mgalliani

Where do you get such an ID?
I have plates for my car.
I have a Medicare card
I have stickers on my Segway (that i bought on eBay)
I even have a prescription from my Doctor stating that I use my Segway as a medical mobility device.

I have never heard of a disability ID

States probably vary, but I believe your car disability hang tag or license should do it. Here in MO you must also have the documentation to prove that it was issued to you, so your drivers licence or state issued equivalent should take care of that if someone want really wants to question your eligibility to use it as a mobility device.

I doubt if your Medicare card or even a blue/white disability placard will be sufficient although the symbol may ease your way at times.

You should not be required to offer your doctor's prescription since, I believe, that would come under the HIPAA medical privacy laws unless they are properly certified to handle that--and the mere asking of such a question will probably make them back off if they do not have that certification.

[Lily Kerns]

Originally Posted by Tarkus

Hi all,

Reasonable accomidatin is a term used in Title I issues.

In Title III we look at "modifications in policies, practices, or procedures". At first it may appear the same but there are subtle differences..

28 C.F.R. § 36.302 - Modifications in policies, practices, or procedures

(a) General - A public accommodation shall make reasonable modifications in policies, practices, or procedures, when the modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the public accommodation can demonstrate that making the modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations.

"fudamenntaly alter".....
If the facility is wheelchair ready than it's Segway ready. We require the same things no matter what the offenders will say.

The next route would be "direct threat".
This will be hard for Disney to prove.

C. Direct Threat
The Direct Threat doctrine is an affirmative defense to claims under Title I and Title III. Under Title III, a public accommodation can deny an individual participation in or benefit from “the goods, services, facilities, privileges, advantages, and accommodations of such entity where such individual poses a direct threat to the health or safety of others.” A "direct threat" is “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or Jservices.”

Title III entities must base their determinations of direct threats on individualized assessments. To succeed as a defense, the threat must be based on real risks, not on stereotypes, mere speculation, or generalizations about individuals with disabilities. To evaluate risks, Title III entities can rely on current medical knowledge or on the best available objective evidence. They should consider several factors including the nature, duration, and severity of the risk, the probability that the potential injury will actually occur, and the likelihood that reasonable modifications to policies, practices, or procedures will mitigate the risk.

...
I find it hard to believe that there is a safety "smoking gun"that Disney has. They didn't break one out at the class action hearings so I don't think they do.

Or they do have the info but understand that if they were to state that a variety of people will want to file suit. The sell tours on a machine that's fundamentally unsafe .....
OSHA would love to hear that they put their employees in danger everyday .


Bottom line. Disney allows them in or it becomes a legal challenge . That was in the cards no matter what the ruling .

Either way the new regs are a huge step ahead for our cause.

Be Big,
AMAC

I suspect you intended to refer to title II rather than Title I. Title II refers to government agencies and Title III to public accommodations such as businesses.

Actually the term "reasonable accommodation" is not used in the new Title II (I know because I wasn't sure and just searched for it.)

Title II uses the same general modification terms as Title III

§ 35.137 Mobility devices
(a) Use of wheelchairs and manually-powered mobility aids. A public entity shall permit individuals with mobility disabilities to use wheelchairs and manually-powered mobility aids, such as walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities in any areas open to pedestrian use. (emphasis added)
(b) (1) Use of other power-driven mobility devices. A public 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 other power-driven mobility devices cannot be operated in accordance with legitimate safety requirements (emphasis added) that the public entity has adopted pursuant to § 35.130(h).

The operative word here would seem to be safety as the only reason for denying its use and the Fact sheet makes it clear that the same access is intended.

(h) A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. However, the public entity must ensure that its safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

There are also general prohibitions of discrimination:


Subpart B -- General Requirements
§ 35.130 General prohibitions against discrimination
(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.
(b)(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability –
(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (emphasis added)
(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;

To me this says that permits, registration, waivers and similar administrative devices are excluded as a means of controlling other mobility device usage unless all users have the same regulations...

Boy, I never dreamed that I would be trying to understand this kind of law stuff...

Lily

[QuadSquad]

Lilly reasonable accommodation is a title I reference. He was referring to the fact that reasonable accommodation is not germane when referring to title II & the title III

[QuadSquad]

Originally Posted by Lily Kerns

States probably vary, but I believe your car disability hang tag or license should do it. Here in MO you must also have the documentation to prove that it was issued to you, so your drivers licence or state issued equivalent should take care of that if someone want really wants to question your eligibility to use it as a mobility device.

I doubt if your Medicare card or even a blue/white disability placard will be sufficient although the symbol may ease your way at times.

You should not be required to offer your doctor's prescription since, I believe, that would come under the HIPAA medical privacy laws unless they are properly certified to handle that--and the mere asking of such a question will probably make them back off if they do not have that certification.

In lieu of a valid, State-issued disability parking placard or card, or State-issued proof of disability, a public accommodation shall accept as a credible assurance a verbal representation, not contradicted by observable fact, that the other power-driven mobility device is being used for a mobility disability.

[Lily Kerns]

Originally Posted by QuadSquad

Lilly reasonable accommodation is a title I reference. He was referring to the fact that reasonable accommodation is not germane when referring to title II & the title III

Sorry about that. I guess my conflicts have been entirely with title II and title III. Not all that surprising since I've been retired for 17 years... <G>

If reasonable accommodation is not germane then I'd sure like to know how the Interior Department can find that a permit system or requiring the use of an alternate device instead of a Segway is "a satisfactory solution" under title II to allowing access for the disabled who use Segways.