The following post was made to the Department of Transportation’s (DOT) Federal Transit Administration website, as a technical assistance note, on April 13, 2011:
FTA has become aware of various inquiries from transit operators and members of the public concerning “new ADA regulations” that went into effect on March 15. Of particular interest have been various provisions relating to service animals and how “wheelchair” is defined.
Please be advised that the U.S. Department of Transportation has issued no changes to its ADA regulations, which cover transportation provided by both the private and public sector.
The cause of any confusion has been a Final Rule issued several months ago by the U.S. Department of Justice (DOJ), which made a number of changes to their ADA regulations that went into effect on March 15, 2011. While the purpose of DOJ’s revisions was to adopt the 2004 accessibility standards (which DOT did in 2006), they also contained language amending provisions for service animals and introduced a new distinction between “wheelchairs” and “other powered mobility devices” or OMPDs.
These changes to DOJ’s regs do not affect the DOT ADA regulations, which cover transportation (both public and privately-operated). The DOJ regs do not compel transit operators to make any changes to their service animal policies or the manner in which they regard mobility devices, nor should transit operators elect to make any changes on this basis. In fact, because the DOT and DOJ regulations now read differently in this regard, changes to accommodate DOJ regulations could result in a grantee being out of compliance with the DOT ADA regulations.
Any amendments to the DOT ADA regulations would be announced in the customary manner – through publication of rulemaking documents in the Federal Register, with an effective date. Unless and until such documents are published, the DOT regulations remain unchanged.
The Department of Justice’s new definition (§ 35.104 Definitions) of service animal no longer identifies animals, domestic or wild, other than dogs as service animals. Miniature horses (§ 35.136 Service animals, (i)) must be allowed as a reasonable modification in policies of covered entities, subject to some exceptions and assessment factors.
As DOT’s definition allows a broader interpretation of civil rights for people with disabilities, it cannot be reduced by DOJ. DOT still recognizes any animal “individually trained to work or perform tasks for an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.” (§ 37.3 Definitions)
DOJ has also revised regulations defining mobility devices, specifically documenting other power-driven mobility devices. (§ 35.137 Mobility devices) DOT continues to use its common wheelchair definition. (§ 37.3 Definitions) The DOJ expansion of the definition of mobility devices allows larger, powered wheelchairs to go “in any areas open to pedestrian use” where they fit as a reasonable modification of policies, subject to some exceptions and assessment factors. DOT’s definition functions to describe the size and weight of a mobility device that at minimum must be able to board and maneuver to a securement location on a transit vehicle.
So what does all of this mean?
First, an individual with a disability who has a trained monkey that acts as a service animal, would be allowed – as a reasonable accommodation under the Fair Housing Act – to have the monkey in his residence and to board a transit bus for a trip to the library. However, upon reaching the library, presuming that the library, as a title II entity, limits the service animals that it permits to those defined by the DOJ’s part 35 regulations, the individual may be refused to have his monkey accompany him into the library.
Conversely, an individual with a disability who uses a Segway as his mobility device might be refused the right to board the transit bus, but would probably be admitted to the library “unless the public entity can demonstrate that the class of other power-driven mobility devices cannot be operated in accordance with legitimate safety requirements that the public entity has adopted pursuant to §35.130(h).”
If you have questions about civil rights in transportation, provided by the ADA, please contact me or your regional ADA Center at 800.949.4232.
As always, information, materials, and/or technical assistance provided here are intended solely as informal guidance, and are neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA.