John P. Hessburg, Margaret A. Chamberlain and Andrea S. DeLand
The Kitch Firm, Attorneys for Health Cap
The use of motorized “scooters” or mobility aides in a long term care setting has been a polarizing issue. On the one hand, these devices enable many individuals to maintain an independent lifestyle. On the other hand, these devices can present safety hazards that can result in serious injuries leading to regulatory violations and civil liability. Because the seriousness of the risks and potential consequences, the obvious answer might seem to be, to limit the use of motorized mobility aides (MMAs), or to simply to ban them altogether. After all, whether the community is a skilled nursing facility, assisted living or simply independent senior housing, there is a duty to provide a safe environment for all individuals living in the community. This is best done by implementing appropriate policies that are developed within the framework of applicable rules and regulations.
Policy considerations regarding the use of MMAs are complex and require an artful balance of a resident’s rights with the rights of the facility and the rights of other residents. These “rights” are defined not only in the Federal Regulations that govern nursing facilities but in independent Federal and State statutes. An understanding of the relevant law is necessary in order to develop a sound MMA policy. The following overview is intended to provide you with a fundamental understanding of the issues, as well as some tips for practical application in the development of your own MMA policy.
In addition to the OBRA regulations governing nursing facilities, senior housing communities of all types must comply with other Federal laws including, but not limited to, the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA). Regardless of licensure, a senior housing community could be the subject of a discrimination claim for violating the ADA or FHA if unreasonable restrictions are placed on the use of MMA’s. Of particular significance is the fact that due to the influx of injury to person and property by motorized mobility aides, the Federal Government revised the ADA regulations effective March 15, 2011.
It is clear from the revised regulations that housing providers must permit manually operated wheelchairs and other manually operated assistive devices without exception. Housing providers must also permit individuals who use other power-driven mobility devices to utilize same, unless it can be shown by the housing provider that an individual’s use fundamentally alters its programs, services, activities, or creates a direct threat, and/or safety hazard. This notion is not much different than originally reported. However, the regulations now give guidance to providers in determining what constitutes a “fundamental alteration to its programs, services, or activities, a direct threat, or safety hazard”. 1 More specifically, providers have been granted express permission to utilize the following factors in making the determination:
- The type, size, weight, dimensions, and speed of the device;
- The facility's volume of pedestrian traffic (which may vary at different times of the day, week, month, or year);
- The facility's 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);
- Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility; and
- 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.
Under the prior case law, these inquiries may have been considered discriminatory. It is important to keep in mind that if an individual is denied the use of a motorized mobility aide while on the premises, a facility must have evidence to support that the factors above were considered and analyzed. In other words, a facility will have a difficult time maintaining that there was a fundamental alteration in its programs, services, or activities, a direct threat, or a safety hazard by simply labeling operators of motorized mobility aides as “dangerous” without objective, tangible evidence that the analysis set forth the above was undertaken and supports the facility’s conclusion.
Most states have statutes that parallel the ADA and FHA. Importantly, some of these statutes are more restrictive and have larger penalties than their federal counterparts. Additionally, licensure-specific requirements, which differ from state to state, should also be considered when developing a MMA policy.
Senior housing communities may be governed not only by Federal Regulations, such as the OBRA regulations that govern nursing facilities, they may be governed by state specific licensure requirements, which also need to be considered in the development of a policy.
Unfortunately, the old axiom, “one size fits all” does not apply to this issue. However, as you develop your own facility specific policy regarding the use of MMAs, the following pages contain examples of some basic “dos” and “don’ts” for the unlicensed setting and for the licensed setting. Additional background information can be found on our MMA Resource Page and actual cases involving LTC providers can be found on our Case Review Page.
This information is intended for consideration by a facility as it develops a policy on the use of MMAs. It is NOT intended to be legal advice, nor is it a complete review of all applicable law(s) or regulations.
Please have your MMA policy reviewed by your own local legal counsel prior to implementation to ensure compliance with all applicable laws and regulations.
1 Title II regulation, 28 C.F.R. Part 35, Nondiscrimination on the Basis of Disability in State and Local Government Services and Title III regulation, 28 C.F.R. Part 36, Part 36: Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities.