[Code of Federal Regulations]

[Title 28, Volume 1]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 28CFR35.130]



[Page 525-527]

 

                    TITLE 28--JUDICIAL ADMINISTRATION

 

                    CHAPTER I--DEPARTMENT OF JUSTICE

 

PART 35_NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND 

LOCAL GOVERNMENT SERVICES--Table of Contents

 

                     Subpart B_General Requirements

 

Sec. 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--

    (i) Deny a qualified individual with a disability the opportunity to 

participate in or benefit from the aid, benefit, or service;

    (ii) Afford a qualified individual with a disability an opportunity 

to participate in or benefit from the aid, benefit, or service that is 

not equal to that afforded others;

    (iii) Provide a qualified individual with a disability with an aid, 

benefit, or service that is not as effective in affording equal 

opportunity to obtain the same result, to gain the same benefit, or to 

reach the same level of achievement as that provided to others;

    (iv) Provide different or separate aids, benefits, or services to 

individuals with disabilities or to any class of individuals with 

disabilities than is provided to others unless such action is necessary 

to provide qualified individuals with disabilities with aids, benefits, 

or services that are as effective as those provided to others;

    (v) Aid or perpetuate discrimination against a qualified individual 

with a disability by providing significant assistance to an agency, 

organization, or person that discriminates on the basis of disability in 

providing any aid, benefit, or service to beneficiaries of the public 

entity's program;

    (vi) Deny a qualified individual with a disability the opportunity 

to participate as a member of planning or advisory boards;



[[Page 526]]



    (vii) Otherwise limit a qualified individual with a disability in 

the enjoyment of any right, privilege, advantage, or opportunity enjoyed 

by others receiving the aid, benefit, or service.

    (2) A public entity may not deny a qualified individual with a 

disability the opportunity to participate in services, programs, or 

activities that are not separate or different, despite the existence of 

permissibly separate or different programs or activities.

    (3) A public entity may not, directly or through contractual or 

other arrangements, utilize criteria or methods of administration:

    (i) That have the effect of subjecting qualified individuals with 

disabilities to discrimination on the basis of disability;

    (ii) That have the purpose or effect of defeating or substantially 

impairing accomplishment of the objectives of the public entity's 

program with respect to individuals with disabilities; or

    (iii) That perpetuate the discrimination of another public entity if 

both public entities are subject to common administrative control or are 

agencies of the same State.

    (4) A public entity may not, in determining the site or location of 

a facility, make selections--

    (i) That have the effect of excluding individuals with disabilities 

from, denying them the benefits of, or otherwise subjecting them to 

discrimination; or

    (ii) That have the purpose or effect of defeating or substantially 

impairing the accomplishment of the objectives of the service, program, 

or activity with respect to individuals with disabilities.

    (5) A public entity, in the selection of procurement contractors, 

may not use criteria that subject qualified individuals with 

disabilities to discrimination on the basis of disability.

    (6) A public entity may not administer a licensing or certification 

program in a manner that subjects qualified individuals with 

disabilities to discrimination on the basis of disability, nor may a 

public entity establish requirements for the programs or activities of 

licensees or certified entities that subject qualified individuals with 

disabilities to discrimination on the basis of disability. The programs 

or activities of entities that are licensed or certified by a public 

entity are not, themselves, covered by this part.

    (7) A public entity shall make reasonable modifications in policies, 

practices, or procedures when the modifications are necessary to avoid 

discrimination on the basis of disability, unless the public entity can 

demonstrate that making the modifications would fundamentally alter the 

nature of the service, program, or activity.

    (8) A public entity shall not impose or apply eligibility criteria 

that screen out or tend to screen out an individual with a disability or 

any class of individuals with disabilities from fully and equally 

enjoying any service, program, or activity, unless such criteria can be 

shown to be necessary for the provision of the service, program, or 

activity being offered.

    (c) Nothing in this part prohibits a public entity from providing 

benefits, services, or advantages to individuals with disabilities, or 

to a particular class of individuals with disabilities beyond those 

required by this part.

    (d) A public entity shall administer services, programs, and 

activities in the most integrated setting appropriate to the needs of 

qualified individuals with disabilities.

    (e)(1) Nothing in this part shall be construed to require an 

individual with a disability to accept an accommodation, aid, service, 

opportunity, or benefit provided under the ADA or this part which such 

individual chooses not to accept.

    (2) Nothing in the Act or this part authorizes the representative or 

guardian of an individual with a disability to decline food, water, 

medical treatment, or medical services for that individual.

    (f) A public entity may not place a surcharge on a particular 

individual with a disability or any group of individuals with 

disabilities to cover the costs of measures, such as the provision of 

auxiliary aids or program accessibility, that are required to provide 

that individual or group with the nondiscriminatory treatment required 

by the Act or this part.



[[Page 527]]



    (g) A public entity shall not exclude or otherwise deny equal 

services, programs, or activities to an individual or entity because of 

the known disability of an individual with whom the individual or entity 

is known to have a relationship or association.