This section contains amendments from November 30, 1993.

37.165  Lift and securement use.

(a) This section applies to public and private entities.

(b) All common wheelchairs and their users shall be transported in the entity's vehicles or other conveyances.  The entity is not required to permit wheelchairs to ride in places other than designated securement locations in the vehicle, where such locations exist.
This provision applies to both public and private entities.  All people using common wheelchairs (an inclusive term for mobility devices that fit on lifts meeting Access Board guideline dimensions -- 30" by 48" and a maximum of 600 pounds for device and user combined -- which includes three-wheeled scooters and other so-called non-traditional mobility devices) are to be allowed to ride the entity's vehicles.

Entities may require wheelchair users to ride in designated securement locations.  That is, the entity is not required to carry wheelchair users whose wheelchairs would have to park in an aisle or other location where they could obstruct other persons' passage or where they could not be secured or restrained.  An entity's vehicle is not required to pick up a wheelchair user when the securement locations are full, just as the vehicle may pass by other passengers waiting at the stop if the bus is full.
  1. For vehicles complying with Part 38 of this title, the  entity shall use the securement system to secure wheelchairs as provided in that Part.
  2. For other vehicles transporting individuals who use wheelchairs, the entity shall provide and use a securement system to ensure that the wheelchair remains within the securement area.
  3. The entity may require that an individual permit his or her wheelchair to be secured.
The entity may require that wheelchair users make use of securement systems for their mobility devices.

The entity, in other words, can require wheelchair users to "buckle up" their mobility devices.  The entity is required, on a vehicle meeting Part 38 standards, to use the securement system to secure wheelchairs as provided in that Part.  On other vehicles (e.g., existing vehicles with securement systems which do not comply with Part 38 standards), the entity must provide and use a securement system to ensure that the mobility device remains within the securement area.  This latter requirement is a mandate to use best efforts to restrain or confine the wheelchair to the securement area.  The entity does the best it can, given its securement technology and the nature of the wheelchair.  The Department encourages entities with relatively less adequate securement systems on their vehicles, where feasible, to retrofit the vehicles with better securement systems, that can successfully restrain a wide variety of wheelchairs.  It is our understanding that the cost of doing so is not enormous.
(d)  The entity may not deny transportation to a wheelchair or its user on the ground that the device cannot be secured or restrained satisfactorily by the vehicle's securement system.
An entity may not, in any case, deny transportation to a common wheelchair and its user because the wheelchair cannot be secured or restrained by a vehicle's securement system, to the entity's satisfaction.
(e) The entity may recommend to a user of a wheelchair that the individual transfer to a vehicle seat.  The entity may not require the individual to transfer.
Entities have often recommended or required that a wheelchair user transfer out of his or her own device into a vehicle seat.  Under this rule, it is no longer permissible to require such a transfer.  The entity may provide information on risks and make a recommendation with respect to transfer, but the final decision on whether to transfer is up to the passenger.  
(f) Where necessary or upon request, the entity's personnel shall assist individuals with disabilities with the use of securement systems, ramps and lifts.  If it is necessary for the personnel to leave their seats to provide this assistance, they shall do so.
The entity's personnel have an obligation to ensure that a passenger with a disability is able to take advantage of the accessibility and safety features on vehicles.  Consequently, the driver or other personnel must provide assistance with the use of lifts, ramps, and securement devices.  For example, the driver must deploy the lift properly and safely.  If the passenger cannot do so independently, the driver must assist the passenger with using the securement device.  On a vehicle which uses a ramp for entry, the driver may have to assist in pushing a manual wheelchair up the ramp (particularly where the ramp slope is relatively steep).All these actions may involve a driver leaving his seat.  Even in entities whose drivers traditionally do not leave their seats (e.g., because of labor-management agreements or company rules), this assistance must be provided.  This rule overrides any requirements to the contrary.

Wheelchair users -- especially those using electric wheelchairs -- often have a preference for entering a lift platform and vehicle in a particular direction (e.g., backing on or going on frontwards).  Except where the only way of successfully maneuvering a device onto a vehicle or into its securement area, or an overriding safety concern (i.e., a direct threat) requires one way of doing this or another, the transit provider should respect the passenger's preference.  We note that most electric wheelchairs are usually not equipped with rearview mirrors, and that many persons who use them are not able to rotate their heads sufficiently to see behind them.  When an electric wheelchair must back up a considerable distance, this can have unfortunate results for other people's toes.  
(g) The entity shall permit individuals with disabilities who do not use wheelchairs, including standees, to use a vehicle's lift or ramp to enter the vehicle. Provided, that an entity is not required to permit such individuals to use a lift Model 141 manufactured by EEC, Inc. If the entity chooses not to allow such individuals to use such a lift, it shall clearly notify consumers of this fact by signage on the exterior of the vehicle (adjacent to and of equivalent size with the accessibility symbol).  
People using canes or walkers and other standees with disabilities who do not use wheelchairs but have difficulty using steps (e.g., an elderly person who can walk on a plane without use of a mobility aid but cannot raise his or her legs sufficiently to climb bus steps) must also be permitted to use the lift, on request.