Section 504
Code of Federal Regulations
Title 34, Volume 1, Parts 1 to 299
Revised as of July 1, 1997
From the U.S. Government Printing Office via GPO Access
[CITE: 34CFR104]
TITLE 34--EDUCATION
CHAPTER I--OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION
PART 104--NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS AND ACTIVITIES
RECEIVING FEDERAL FINANCIAL ASSISTANCE
Subpart A--General Provisions
Sec.
104.1 Purpose.
104.2 Application.
104.3 Definitions.
104.4 Discrimination prohibited.
104.5 Assurances required.
104.6 Remedial action, voluntary action, and self-evaluation.
104.7 Designation of responsible employee and adoption of grievance procedures.
104.8 Notice.
104.9 Administrative requirements for small recipients.
104.10 Effect of state or local law or other requirements and effect of
employment opportunities.
Subpart B--Employment Practices
104.11 Discrimination prohibited.
104.12 Reasonable accommodation.
104.13 Employment criteria.
104.14 Preemployment inquiries.
Subpart C--Program Accessibility
104.21 Discrimination prohibited.
104.22 Existing facilities.
104.23 New construction.
Subpart D--Preschool, Elementary, and Secondary Education
104.31 Application of this subpart.
104.32 Location and notification.
104.33 Free appropriate public education.
104.34 Educational setting.
104.35 Evaluation and placement.
104.36 Procedural safeguards.
104.37 Nonacademic services.
104.38 Preschool and adult education programs.
104.39 Private education programs.
Subpart E--Postsecondary Education
104.41 Application of this subpart.
104.42 Admissions and recruitment.
104.43 Treatment of students; general.
104.44 Academic adjustments.
104.45 Housing.
104.46 Financial and employment assistance to students.
104.47 Nonacademic services.
Subpart F--Health, Welfare, and Social Services
104.51 Application of this subpart.
104.52 Health, welfare, and other social services.
104.53 Drug and alcohol addicts.
104.54 Education of institutionalized persons.
Subpart G--Procedures
104.61 Procedures.
Appendix A to Part 104--Analysis of Final Regulation
Appendix B to Part 104--Guidelines for Eliminating Discrimination and
Denial of Services on the Basis of Race, Color, National
Origin, Sex, and Handicap in Vocational Education Programs
[Note]
Authority: 20 U.S.C. 1405; 29 U.S.C. 794.
Source: 45 FR 30936, May 9, 1980, unless otherwise noted.
Subpart A--General Provisions
Sec. 104.1 Purpose.
The purpose of this part is to effectuate section 504 of the
Rehabilitation Act of 1973, which is designed to eliminate
discrimination on the basis of handicap in any program or activity receiving
Federal financial assistance.
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Sec. 104.2 Application.
This part applies to each recipient of Federal financial assistance
from the Department of Education and to each program or activity that receives
or benefits from such assistance.
Sec. 104.3 Definitions.
As used in this part, the term:
(a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as amended by
the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, 29 U.S.C. 794.
(b) Section 504 means section 504 of the Act.
(c) Education of the Handicapped Act means that statute as amended by the
Education for all Handicapped Children Act of 1975, Pub. L. 94- 142, 20 U.S.C.
1401 et seq.
(d) Department means the Department of Education.
(e) Assistant Secretary means the Assistant Secretary for Civil Rights of the
Department of Education.
(f) Recipient means any state or its political subdivision, any instrumentality
of a state or its political subdivision, any public or private agency,
institution, organization, or other entity, or any person to which Federal
financial assistance is extended directly or through another recipient,
including any successor, assignee, or transferee of a recipient, but excluding
the ultimate beneficiary of the assistance.
(g) Applicant for assistance means one who submits an application, request, or
plan required to be approved by a Department official or by a recipient as a
condition to becoming a recipient.
(h) Federal financial assistance means any grant, loan, contract (other than a
procurement contract or a contract of insurance or guaranty), or any other
arrangement by which the Department provides or otherwise makes available
assistance in the form of:
(1) Funds;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of such property,
including:
(i) Transfers or leases of such property for less than fair market value or for
reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property if the
Federal share of its fair market value is not returned to the Federal
Government.
(i) Facility means all or any portion of buildings, structures, equipment,
roads, walks, parking lots, or other real or personal
property or interest in such property.
(j) Handicapped person--(1) Handicapped persons means any person who
(i) has a physical or mental impairment which substantially limits one or more
major life activities, (ii) has a record of such an impairment, or (iii) is
regarded as having such an impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i) Physical or mental impairment means (A) any physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or more of
the following body systems: neurological; musculoskeletal; special sense
organs; respiratory, including speech organs; cardiovascular; reproductive,
digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any
mental or psychological disorder, such as mental retardation, organic brain
syndrome, emotional or mental illness, and specific learning disabilities.
(ii) Major life activities means functions such as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.
(iii) Has a record of such an impairment means has a history of, or has been
misclassified as having, a mental or physical impairment that substantially
limits one or more major life activities.
(iv) Is regarded as having an impairment means (A) has a physical or mental
impairment that does not substantially limit major life activities but that is
treated by a recipient as constituting such a limitation; (B) has a physical or
mental impairment that substantially limits major life activities only as a
result of the attitudes of others toward such impairment; or (C) has none of
the impairments defined in paragraph (j)(2)(i) of this section but is treated
by a recipient as having such an impairment.
(k) Qualified handicapped person means:
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(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job in
question;
(2) With respect to public preschool elementary, secondary, or adult
educational services, a handicappped person (i) of an age during which
nonhandicapped persons are provided such services, (ii) of any age during which
it is mandatory under state law to provide such services to handicapped
persons, or (iii) to whom a state is required to provide a free appropriate
public education under section 612 of the Education of the Handicapped Act; and
(3) With respect to postsecondary and vocational education services, a
handicapped person who meets the academic and technical standards requisite to
admission or participation in the recipient's education program or activity;
(4) With respect to other services, a handicapped person who meets the
essential eligibility requirements for the receipt of such services.
(l) Handicap means any condition or characteristic that renders a person a
handicapped person as defined in paragraph (j) of this section.
Sec. 104.4 Discrimination prohibited.
(a) General. No qualified handicapped person shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activitiy which
receives or benefits from Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient, in providing any aid,
benefit, or service, may not, directly or through contractual, licensing, or
other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped person the opportunity to participate in or
benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person 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 handicapped person with an aid, benefit, or service
that is not as effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped
persons or to any class of handicapped persons unless such action is necessary
to provide qualified handicapped persons with aid, benefits, or services that
are as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped person by
providing significant assistance to an agency, organization, or person that
discriminates on the basis of handicap in providing any aid, benefit, or
service to beneficiaries of the recipients program;
(vi) Deny a qualified handicapped person the opportunity to participate as a
member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped person in the enjoyment of any
right, privilege, advantage, or opportunity enjoyed by others receiving an aid,
benefit, or service.
(2) For purposes of this part, aids, benefits, and services, to be equally
effective, are not required to produce the identical result or level of
achievement for handicapped and nonhandicapped persons, but must afford
handicapped persons equal opportunity to obtain the same result, to gain the
same benefit, or to reach the same level of achievement, in the most integrated
setting appropriate to the person's needs.
(3) Despite the existence of separate or different programs or activities
provided in accordance with this part, a recipient may not deny a qualified
handicapped person the opportunity to participate in such programs or
activities that are not separate or different.
(4) A recipient may not, directly or through contractual or other arrangements,
utilize criteria or methods of administration (i) that have the effect of
subjecting qualified handicapped persons to discrimination on the basis of
handicap, (ii) that have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program with
respect to handicapped persons, or (iii)
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that perpetuate the discrimination of another recipient if both
recipients are subject to common administrative control or are agencies of the
same State.
(5) In determining the site or location of a facility, an applicant for
assistance or a recipient may not make selections (i) that have the effect of
excluding handicapped persons from, denying them the benefits of, or otherwise
subjecting them to discrimination under any program or activity that receives
or benefits from Federal financial assistance or (ii) that have the purpose or
effect of defeating or substantially impairing the accomplishment of the
objectives of the program or activity with respect to handicapped persons.
(6) As used in this section, the aid, benefit, or service provided under a
program or activity receiving or benefiting from Federal financial assistance
includes any aid, benefit, or service provided in or through a facility that
has been constructed, expanded, altered, leased or rented, or otherwise
acquired, in whole or in part, with Federal financial assistance.
(c) Programs limited by Federal law. The exclusion of nonhandicapped persons
from the benefits of a program limited by Federal statute or executive order to
handicapped persons or the exclusion of a specific class of handicapped persons
from a program limited by Federal statute or executive order to a different
class of handicapped persons is not prohibited by this part.
Sec. 104.5 Assurances required.
(a) Assurances. An applicant for Federal financial assistance for a
program or activity to which this part applies shall submit an assurance, on a
form specified by the Assistant Secretary, that the program will be operated in
compliance with this part. An applicant may incorporate these assurances by
reference in subsequent applications to the Department.
(b) Duration of obligation. (1) In the case of Federal financial assistance
extended in the form of real property or to provide real property or structures
on the property, the assurance will obligate the recipient or, in the case of a
subsequent transfer, the transferee, for the period during which the real
property or structures are used for the purpose for which Federal financial
assistance is extended or for another purpose involving the provision of
similar services or benefits.
(2) In the case of Federal financial assistance extended to provide personal
property, the assurance will obligate the recipient for the period during which
it retains ownership or possession of the property.
(3) In all other cases the assurance will obligate the recipient for the period
during which Federal financial assistance is extended.
(c) Covenants. (1) Where Federal financial assistance is provided in the form
of real property or interest in the property from the Department, the
instrument effecting or recording this transfer shall contain a covenant
running with the land to assure nondiscrimination for the period during which
the real property is used for a purpose for which the Federal financial
assistance is extended or for another purpose involving the provision of
similar services or benefits.
(2) Where no transfer of property is involved but property is purchased or
improved with Federal financial assistance, the recipient shall agree to
include the covenant described in paragraph (b)(2) of this section in the
instrument effecting or recording any subsequent transfer of the property.
(3) Where Federal financial assistance is provided in the form of real property
or interest in the property from the Department, the covenant shall also
include a condition coupled with a right to be reserved by the Department to
revert title to the property in the event of a breach of the covenant. If a
transferee of real property proposes to mortgage or otherwise encumber the real
property as security for financing construction of new, or improvement of
existing, facilities on the property for the purposes for which the property
was transferred, the Assistant Secretary may, upon request of the transferee
and if necessary to accomplish such financing and upon such conditions as he or
she deems appropriate, agree to forbear the exercise of such right to revert
title for so long as the lien of such mortgage or other encumbrance remains
effective.
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Sec. 104.6 Remedial action, voluntary action, and self-evaluation.
(a) Remedial action. (1) If the Assistant Secretary finds that a
recipient has discriminated against persons on the basis of handicap in
violation of section 504 or this part, the recipient shall take such remedial
action as the Assistant Secretary deems necessary to overcome the effects of
the discrimination.
(2) Where a recipient is found to have discriminated against persons on the
basis of handicap in violation of section 504 or this part and where another
recipient exercises control over the recipient that has discriminated, the
Assistant Secretary, where appropriate, may require either or both recipients
to take remedial action.
(3) The Assistant Secretary may, where necessary to overcome the effects of
discrimination in violation of section 504 or this part, require a recipient to
take remedial action (i) with respect to handicapped persons who are no longer
participants in the recipient's program but who were participants in the
program when such discrimination occurred or (ii) with respect to handicapped
persons who would have been participants in the program had the discrimination
not occurred.
(b) Voluntary action. A recipient may take steps, in addition to any action
that is required by this part, to overcome the effects of conditions that
resulted in limited participation in the recipient's program or activity by
qualified handicapped persons.
(c) Self-evaluation. (1) A recipient shall, within one year of the effective
date of this part:
(i) Evaluate, with the assistance of interested persons, including handicapped
persons or organizations representing handicapped persons, its current policies
and practices and the effects thereof that do not or may not meet the
requirements of this part;
(ii) Modify, after consultation with interested persons, including handicapped
persons or organizations representing handicapped persons, any policies and
practices that do not meet the requirements of this part; and
(iii) Take, after consultation with interested persons, including handicapped
persons or organizations representing handicapped persons, appropriate remedial
steps to eliminate the effects of any discrimination that resulted from
adherence to these policies and practices.
(2) A recipient that employs fifteen or more persons shall, for at least three
years following completion of the evaluation required under paragraph (c)(1) of
this section, maintain on file, make available for public inspection, and
provide to the Assistant Secretary upon request:
(i) A list of the interested persons consulted,
(ii) A description of areas examined and any problems identified, and
(iii) A description of any modifications made and of any remedial steps taken.
Sec. 104.7 Designation of responsible employee and adoption of
grievance procedures.
(a) Designation of responsible employee. A recipient that employs
fifteen or more persons shall designate at least one person to coordinate its
efforts to comply with this part.
(b) Adoption of grievance procedures. A recipient that employs fifteen or more
persons shall adopt grievance procedures that incorporate appropriate due
process standards and that provide for the prompt and equitable resolution of
complaints alleging any action prohibited by this part. Such procedures need
not be established with respect to complaints from applicants for employment or
from applicants for admission to postsecondary educational institutions.
Sec. 104.8 Notice.
(a) A recipient that employs fifteen or more persons shall take
appropriate initial and continuing steps to notify participants, beneficiaries,
applicants, and employees, including those with impaired vision or hearing, and
unions or professional organizations holding collective bargaining or
professional agreements with the recipient that it does not discriminate on the
basis of handicap in violation of section 504 and this part. The notification
shall state, where appropriate, that the recipient does not discriminate in
admission or
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access to, or treatment or employment in, its programs and
activities. The notification shall also include an identification of the
responsible employee designated pursuant to Sec. 104.7(a). A recipient shall
make the initial notification required by this paragraph within 90 days of the
effective date of this part. Methods of initial and continuing notification may
include the posting of notices, publication in newspapers and magazines,
placement of notices in recipients' publication, and distribution of memoranda
or other written communications.
(b) If a recipient publishes or uses recruitment materials or publications
containing general information that it makes available to participants,
beneficiaries, applicants, or employees, it shall include in those materials or
publications a statement of the policy described in paragraph (a) of this
section. A recipient may meet the requirement of this paragraph either by
including appropriate inserts in existing materials and publications or by
revising and reprinting the materials and publications.
Sec. 104.9 Administrative requirements for small recipients.
The Assistant Secretary may require any recipient with fewer than
fifteen employees, or any class of such recipients, to comply with Secs. 104.7
and 104.8, in whole or in part, when the Assistant Secretary finds a violation
of this part or finds that such compliance will not significantly impair the
ability of the recipient or class of recipients to provide benefits or
services.
Sec. 104.10 Effect of state or local law or other requirements and
effect of employment opportunities.
(a) The obligation to comply with this part is not obviated or
alleviated by the existence of any state or local law or other requirement
that, on the basis of handicap, imposes prohibitions or limits upon the
eligibility of qualified handicapped persons to receive services or to practice
any occupation or profession.
(b) The obligation to comply with this part is not obviated or alleviated
because employment opportunities in any occupation or profession are or may be
more limited for handicapped persons than for nonhandicapped persons.
Subpart B--Employment Practices
Sec. 104.11 Discrimination prohibited.
(a) General. (1) No qualified handicapped person shall, on the
basis of handicap, be subjected to discrimination in employment under any
program or activity to which this part applies.
(2) A recipient that receives assistance under the Education of the Handicapped
Act shall take positive steps to employ and advance in employment qualified
handicapped persons in programs assisted under that Act.
(3) A recipient shall make all decisions concerning employment under any
program or activity to which this part applies in a manner which ensures that
discrimination on the basis of handicap does not occur and may not limit,
segregate, or classify applicants or employees in any way that adversely
affects their opportunities or status because of handicap.
(4) A recipient may not participate in a contractual or other relationship that
has the effect of subjecting qualified handicapped applicants or employees to
discrimination prohibited by this subpart. The relationships referred to in
this paragraph include relationships with employment and referral agencies,
with labor unions, with organizations providing or administering fringe
benefits to employees of the recipient, and with organizations providing
training and apprenticeship programs.
(b) Specific activities. The provisions of this subpart apply to:
(1) Recruitment, advertising, and the processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff,
termination, right of return from layoff and rehiring;
(3) Rates of pay or any other form of compensation and changes in compensation;
(4) Job assignments, job classifications, organizational structures, position
descriptions, lines of progression, and seniority lists;
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(5) Leaves of absense, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or not
administered by the recipient;
(7) Selection and financial support for training, including apprenticeship,
professional meetings, conferences, and other related activities, and selection
for leaves of absence to pursue training;
(8) Employer sponsored activities, including social or recreational programs;
and
(9) Any other term, condition, or privilege of employment.
(c) A recipient's obligation to comply with this subpart is not affected by any
inconsistent term of any collective bargaining agreement to which it is a
party.
Sec. 104.12 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or mental limitations of an otherwise qualified handicapped applicant
or employee unless the recipient can demonstrate that the accommodation would
impose an undue hardship on the operation of its program.
(b) Reasonable accommodation may include:
(1) Making facilities used by employees readily accessible to and usable by
handicapped persons, and
(2) Job restructuring, part-time or modified work schedules, acquisition or
modification of equipment or devices, the provision of readers or interpreters,
and other similar actions.
(c) In determining pursuant to paragraph (a) of this section whether an
accommodation would impose an undue hardship on the operation of a recipient's
program, factors to be considered include:
(1) The overall size of the recipient's program with respect to number of
employees, number and type of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition and
structure of the recipient's workforce; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a qualified
handicapped employee or applicant if the basis for the denial is the need to
make reasonable accommodation to the physical or mental limitations of the
employee or applicant.
Sec. 104.13 Employment criteria.
(a) A recipient may not make use of any employment test or other
selection criterion that screens out or tends to screen out handicapped persons
or any class of handicapped persons unless:
(1) The test score or other selection criterion, as used by the recipient, is
shown to be job-related for the position in question, and
(2) Alternative job-related tests or criteria that do not screen out or tend to
screen out as many handicapped persons are not shown by the Director to be
available.
(b) A recipient shall select and administer tests concerning employment so as
best to ensure that, when administered to an applicant or employee who has a
handicap that impairs sensory, manual, or speaking skills, the test results
accurately reflect the applicant's or employee's job skills, aptitude, or
whatever other factor the test purports to measure, rather than reflecting the
applicant's or employee's impaired sensory, manual, or speaking skills (except
where those skills are the factors that the test purports to measure).
Sec. 104.14 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct a preemployment medical examination or may not make
preemployment inquiry of an applicant as to whether the applicant is a
handicapped person or as to the nature or severity of a handicap. A recipient
may, however, make preemployment inquiry into an applicant's ability to perform
job-related functions.
(b) When a recipient is taking remedial action to correct the effects of past
discrimination pursuant to Sec. 104.6 (a), when a recipient is taking voluntary
action to overcome the effects of conditions that resulted in limited
participation in its federally assisted program or activity pursuant to Sec.
104.6(b), or when a recipient is taking affirmative action pursuant to section
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503 of the Act, the recipient may invite applicants for employment
to indicate whether and to what extent they are handicapped, Provided, That:
(1) The recipient states clearly on any written questionnaire used for this
purpose or makes clear orally if no written questionnaire is used that the
information requested is intended for use solely in connection with its
remedial action obligations or its voluntary or affirmative action efforts; and
(2) The recipient states clearly that the information is being requested on a
voluntary basis, that it will be kept confidential as provided in paragraph (d)
of this section, that refusal to provide it will not subject the applicant or
employee to any adverse treatment, and that it will be used only in accordance
with this part.
(c) Nothing in this section shall prohibit a recipient from conditioning an
offer of employment on the results of a medical examination conducted prior to
the employee's entrance on duty, Provided, That:
(1) All entering employees are subjected to such an examination regardless of
handicap, and
(2) The results of such an examination are used only in accordance with the
requirements of this part.
(d) Information obtained in accordance with this section as to the medical
condition or history of the applicant shall be collected and maintained on
separate forms that shall be accorded confidentiality as medical records,
except that:
(1) Supervisors and managers may be informed regarding restrictions on the work
or duties of handicapped persons and regarding necessary accommodations;
(2) First aid and safety personnel may be informed, where appropriate, if the
condition might require emergency treatment; and
(3) Government officials investigating compliance with the Act shall be
provided relevant information upon request.
Subpart C--Program Accessibility
Sec. 104.21 Discrimination prohibited.
No qualified handicapped person shall, because a recipient's
facilities are inaccessible to or unusable by handicapped persons, be denied
the benefits of, be excluded from participation in, or otherwise be subjected
to discrimination under any program or activity to which this part applies.
Sec. 104.22 Existing facilities.
(a) Program accessibility. A recipient shall operate each program
or activity to which this part applies so that the program or activity, when
viewed in its entirety, is readily accessible to handicapped persons. This
paragraph does not require a recipient to make each of its existing facilities
or every part of a facility accessible to and usable by handicapped persons.
(b) Methods. A recipient may comply with the requirements of paragraph (a) of
this section through such means as redesign of equipment, reassignment of
classes or other services to accessible buildings, assignment of aides to
beneficiaries, home visits, delivery of health, welfare, or other social
services at alternate accessible sites, alteration of existing facilities and
construction of new facilities in conformance with the requirements of Sec.
104.23, or any other methods that result in making its program or activity
accessible to handicapped persons. A recipient is not required to make
structural
changes in existing facilities where other methods are effective in achieving
compliance with paragraph (a) of this section. In choosing among available
methods for meeting the requirement of paragraph (a) of this section, a
recipient shall give priority to those methods that offer programs and
activities to handicapped persons in the most integrated setting appropriate.
(c) Small health, welfare, or other social service providers. If a recipient
with fewer than fifteen employees that provides health, welfare, or other
social services finds, after consultation with a handicapped person seeking its
services, that there is no method of complying with paragraph (a) of this
section other than making a significant alteration in its existing facilities,
the recipient may, as an alternative, refer the handicapped person to other
providers of those services that are accessible.
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(d) Time period. A recipient shall comply with the requirement of
paragraph (a) of this section within sixty days of the effective date of this
part except that where structural changes in facilities are necessary, such
changes shall be made within three years of the effective date of this part,
but in any event as expeditiously as possible.
(e) Transition plan. In the event that structural changes to facilities are
necessary to meet the requirement of paragraph (a) of this section, a recipient
shall develop, within six months of the effective date of this part, a
transition plan setting forth the steps necessary to complete such changes. The
plan shall be developed with the assistance of interested persons, including
handicapped persons or organizations representing handicapped persons. A copy
of the transition plan shall be made available for public inspection. The plan
shall, at a minimum:
(1) Identify physical obstacles in the recipient's facilities that limit the
accessibility of its program or activity to handicappped
persons;
(2) Describe in detail the methods that will be used to make the facilities
accessible;
(3) Specify the schedule for taking the steps necessary to achieve full program
accessibility and, if the time period of the transition plan is longer than one
year, identify the steps of that will be taken during each year of the
transition period; and
(4) Indicate the person responsible for implementation of the plan.
(f) Notice. The recipient shall adopt and implement procedures to ensure that
interested persons, including persons with impaired vision or hearing, can
obtain information as to the existence and location of services, activities,
and facilities that are accessible to and usuable by handicapped persons.
Sec. 104.23 New construction.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient shall be designed
and constructed in such manner that the facility or part of the facility is
readily accessible to and usable by handicapped persons, if the construction
was commenced after the effective date of this part. (b) Alteration. Each
facility or part of a facility which is altered by, on behalf of, or for the
use of a recipient after the effective date of this part in a manner that
affects or could affect the usability of the facility or part of the facility
shall, to the maximum extent feasible, be altered in such manner that the
altered portion of the facility is readily accessible to and usable by
handicapped persons.
(c) Conformance with Uniform Federal Accessibility Standards. (1) Effective as
of January 18, 1991, design, construction, or alteration of buildings in
conformance with sections 3-8 of the Uniform Federal Accessibility Standards
(UFAS) (Appendix A to 41 CFR subpart 101-19.6) shall be deemed to comply with
the requirements of this section with respect to those buildings. Departures
from particular technical and scoping requirements of UFAS by the use of other
methods are permitted where substantially equivalent or greater access to and
usability of the building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall be
interpreted to exempt from the requirements of UFAS only mechanical rooms and
other spaces that, because of their intended use, will not require
accessibility to the public or beneficiaries or result in the employment or
residence therein of persons with phusical handicaps.
(3) This section does not require recipients to make building alterations that
have little likelihood of being accomplished without removing or altering a
load-bearing structural member.
[45 FR 30936, May 9, 1980; 45 FR 37426, June 3, 1980, as amended at
55 FR 52138, 52141, Dec. 19, 1990]
Subpart D--Preschool, Elementary, and Secondary Education
Sec. 104.31 Application of this subpart.
Subpart D applies to preschool, elementary, secondary, and adult
education programs and activities that receive or benefit from Federal
financial assistance and to recipients that operate, or that receive or benefit
from
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Federal financial assistance for the operation of, such programs or
activities.
Sec. 104.32 Location and notification.
A recipient that operates a public elementary or secondary
education program shall annually:
(a) Undertake to identify and locate every qualified handicapped person
residing in the recipient's jurisdiction who is not receiving a public
education; and
(b) Take appropriate steps to notify handicapped persons and their parents or
guardians of the recipient's duty under this subpart.
Sec. 104.33 Free appropriate public education.
(a) General. A recipient that operates a public elementary or
secondary education program shall provide a free appropriate public education
to each qualified handicapped person who is in the recipient's jurisdiction,
regardless of the nature or severity of the person's handicap.
(b) Appropriate education. (1) For the purpose of this subpart, the provision
of an appropriate education is the provision of regular or special education
and related aids and services that (i) are designed to meet individual
educational needs of handicapped persons as adequately as the needs of
nonhandicapped persons are met and (ii) are based upon adherence to procedures
that satisfy the requirements of Secs. 104.34, 104.35, and 104.36.
(2) Implementation of an individualized education program developed in
accordance with the Education of the Handicapped Act is one means of meeting
the standard established in paragraph (b)(1)(i) of this section.
(3) A recipient may place a handicapped person in or refer such person to a
program other than the one that it operates as its means of carrying out the
requirements of this subpart. If so, the recipient remains responsible for
ensuring that the requirements of this subpart are met with respect to any
handicapped person so placed or referred.
(c) Free education--(1) General. For the purpose of this section, the provision
of a free education is the provision of educational and related services
without cost to the handicapped person or to his or her parents or guardian,
except for those fees that are imposed on non- handicapped persons or their
parents or guardian. It may consist either of the provision of free services
or, if a recipient places a handicapped person in or refers such person to a
program not operated by the recipient as its means of carrying out the
requirements of this subpart, of payment for the costs of the program. Funds
available from any public or private agency may be used to meet the
requirements of this subpart. Nothing in this section shall be construed to
relieve an insurer or similar third party from an otherwise valid obligation to
provide or pay for services provided to a handicapped person.
(2) Transportation. If a recipient places a handicapped person in or refers
such person to a program not operated by the recipient as its means of carrying
out the requirements of this subpart, the recipient shall ensure that adequate
transportation to and from the program is provided at no greater cost than
would be incurred by the person or his or her parents or guardian if the person
were placed in the program operated by the recipient.
(3) Residential placement. If placement in a public or private residential
program is necessary to provide a free appropriate public education to a
handicapped person because of his or her handicap, the program, including
non-medical care and room and board, shall be provided at no cost to the person
or his or her parents or guardian.
(4) Placement of handicapped persons by parents. If a recipient has made
available, in conformance with the requirements of this section and Sec.
104.34, a free appropriate public education to a handicapped person and the
person's parents or guardian choose to place the person in a private school,
the recipient is not required to pay for the person's education in the private
school. Disagreements between a parent or guardian and a recipient regarding
whether the recipient has made such a program available or otherwise regarding
the question of financial responsibility are subject to the due process
procedures of Sec. 104.36.
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(d) Compliance. A recipient may not exclude any qualified
handicapped person from a public elementary or secondary education after the
effective date of this part. A recipient that is not, on the effective date of
this regulation, in full compliance with the other requirements of the
preceding paragraphs of this section shall meet such requirements at the
earliest practicable time and in no event later than September 1, 1978.
Sec. 104.34 Educational setting.
(a) Academic setting. A recipient to which this subpart applies
shall educate, or shall provide for the education of, each qualified
handicapped person in its jurisdiction with persons who are not handicapped to
the maximum extent appropriate to the needs of the handicapped person. A
recipient shall place a handicapped person in the regular educational
environment operated by the recipient unless it is demonstrated by the
recipient that the education of the person in the regular environment with the
use of supplementary aids and services cannot be achieved satisfactorily.
Whenever a recipient places a person in a setting other than the regular
educational environment pursuant to this paragraph, it shall take into account
the proximity of the alternate setting to the person's home.
(b) Nonacademic settings. In providing or arranging for the provision of
nonacademic and extracurricular services and activities, including meals,
recess periods, and the services and activities set forth in Sec. 104.37(a)(2),
a recipient shall ensure that handicapped persons participate with
nonhandicapped persons in such activities and services to the maximum extent
appropriate to the needs of the handicapped person in question.
(c) Comparable facilities. If a recipient, in compliance with paragraph (a) of
this section, operates a facility that is identifiable as being for handicapped
persons, the recipient shall ensure that the facility and the services and
activities provided therein are comparable to the other facilities, services,
and activities of the recipient.
Sec. 104.35 Evaluation and placement.
(a) Preplacement evaluation. A recipient that operates a public
elementary or secondary education program shall conduct an evaluation in
accordance with the requirements of paragraph (b) of this section of any person
who, because of handicap, needs or is belived to need special education or
related services before taking any action with respect to the initial placement
of the person in a regular or special education program and any subsequent
significant change in placement. (b) Evaluation procedures. A recipient to
which this subpart applies shall establish standards and procedures for the
evaluation and placement of persons who, because of handicap, need or are
believed to need special education or related services which ensure that:
(1) Tests and other evaluation materials have been validated for the specific
purpose for which they are used and are administered by trained personnel in
conformance with the instructions provided by their producer;
(2) Tests and other evaluation materials include those tailored to assess
specific areas of educational need and not merely those which are designed to
provide a single general intelligence quotient; and
(3) Tests are selected and administered so as best to ensure that, when a test
is administered to a student with impaired sensory, manual, or speaking skills,
the test results accurately reflect the student's aptitude or achievement level
or whatever other factor the test purports to measure, rather than reflecting
the student's impaired sensory, manual, or speaking skills (except where those
skills are the factors that the test purports to measure).
(c) Placement procedures. In interpreting evaluation data and in making
placement decisions, a recipient shall (1) draw upon information from a variety
of sources, including aptitude and achievement tests, teacher recommendations,
physical condition, social or cultural background, and adaptive behavior, (2)
establish procedures to ensure that information obtained from all such sources
is documented and carefully considered, (3) ensure that the placement decision
is made by a group of persons, including persons
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knowledgeable about the child, the meaning of the evaluation data,
and the placement options, and (4) ensure that the placement decision is made
in conformity with Sec. 104.34.
(d) Reevaluation. A recipient to which this section applies shall establish
procedures, in accordance with paragraph (b) of this section, for periodic
reevaluation of students who have been provided special education and related
services. A reevaluation procedure consistent with the Education for the
Handicapped Act is one means of meeting this requirement.
Sec. 104.36 Procedural safeguards.
A recipient that operates a public elementary or secondary
education program shall establish and implement, with respect to actions
regarding the identification, evaluation, or educational placement of persons
who, because of handicap, need or are believed to need special instruction or
related services, a system of procedural safeguards that includes notice, an
opportunity for the parents or guardian of the person to examine relevant
records, an impartial hearing with opportunity for participation by the
person's parents or guardian and representation by counsel, and a review
procedure. Compliance with the procedural safeguards of section 615 of the
Education of the Handicapped Act is one means of meeting this requirement.
Sec. 104.37 Nonacademic services.
(a) General. (1) A recipient to which this subpart applies shall
provide non-academic and extracurricular services and activities in such manner
as is necessary to afford handicapped students an equal opportunity for
participation in such services and activities.
(2) Nonacademic and extracurricular services and activities may include
counseling services, physical recreational athletics, transportation, health
services, recreational activities, special interest groups or clubs sponsored
by the recipients, referrals to agencies which provide assistance to
handicapped persons, and employment of students, including both employment by
the recipient and assistance in making available outside employment.
(b) Counseling services. A recipient to which this subpart applies that
provides personal, academic, or vocational counseling, guidance, or placement
services to its students shall provide these services without discrimination on
the basis of handicap. The recipient shall ensure that qualified handicapped
students are not counseled toward more restrictive career objectives than are
nonhandicapped students with similar interests and abilities.
(c) Physical education and athletics. (1) In providing physical education
courses and athletics and similar programs and activities to any of its
students, a recipient to which this subpart applies may not discriminate on the
basis of handicap. A recipient that offers physical education courses or that
operates or sponsors interscholastic, club, or intramural athletics shall
provide to qualified handicapped students an equal opportunity for
participation in these activities.
(2) A recipient may offer to handicapped students physical education and
athletic activities that are separate or different from those offered to
nonhandicapped students only if separation or differentiation is consistent
with the requirements of Sec. 104.34 and only if no qualified handicapped
student is denied the opportunity to compete for teams or to participate in
courses that are not separate or different.
Sec. 104.38 Preschool and adult education programs.
A recipient to which this subpart applies that operates a preschool
education or day care program or activity or an adult education program or
activity may not, on the basis of handicap, exclude qualified handicapped
persons from the program or activity and shall take into account the needs of
such persons in determining the aid, benefits, or services to be provided under
the program or activity.
Sec. 104.39 Private education programs.
(a) A recipient that operates a private elementary or secondary
education program may not, on the basis of handicap, exclude a qualified
handicapped person from such program if the person can, with minor adjustments,
be
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provided an appropriate education, as defined in Sec. 104.33(b)(1),
within the recipient's program.
(b) A recipient to which this section applies may not charge more for the
provision of an appropriate education to handicapped persons than to
nonhandicapped persons except to the extent that any additional charge is
justified by a substantial increase in cost to the recipient.
(c) A recipient to which this section applies that operates special education
programs shall operate such programs in accordance with the provisions of Secs.
104.35 and 104.36. Each recipient to which this section applies is subject to
the provisions of Secs. 104.34, 104.37, and 104.38.
Subpart E--Postsecondary Education
Sec. 104.41 Application of this subpart.
Subpart E applies to postsecondary education programs and
activities, including postsecondary vocational education programs and
activities, that receive or benefit from Federal financial assistance and to
recipients that operate, or that receive or benefit from Federal financial
assistance for the operation of, such programs or activities.
Sec. 104.42 Admissions and recruitment.
(a) General. Qualified handicapped persons may not, on the basis of
handicap, be denied admission or be subjected to discrimination in admission or
recruitment by a recipient to which this subpart applies.
(b) Admissions. In administering its admission policies, a recipient to which
this subpart applies:
(1) May not apply limitations upon the number or proportion of handicapped
persons who may be admitted;
(2) May not make use of any test or criterion for admission that has a
disproportionate, adverse effect on handicapped persons or any class of
handicapped persons unless (i) the test or criterion, as used by the recipient,
has been validated as a predictor of success in the education program or
activity in question and (ii) alternate tests or criteria that have a less
disproportionate, adverse effect are not shown by the Assistant Secretary to be
available.
(3) Shall assure itself that (i) admissions tests are selected and administered
so as best to ensure that, when a test is administered to an applicant who has
a handicap that impairs sensory, manual, or speaking skills, the test results
accurately reflect the applicant's aptitude or achievement level or whatever
other factor the test purports to measure, rather than reflecting the
applicant's impaired sensory, manual, or speaking skills (except where those
skills are the factors that the test purports to measure); (ii) admissions
tests that are designed for persons with impaired sensory, manual, or speaking
skills are offered as often and in as timely a manner as are other admissions
tests; and (iii) admissions tests are administered in facilities that, on the
whole, are accessible to handicapped persons; and
(4) Except as provided in paragraph (c) of this section, may not make
preadmission inquiry as to whether an applicant for admission is a handicapped
person but, after admission, may make inquiries on a confidential basis as to
handicaps that may require accommodation.
(c) Preadmission inquiry exception. When a recipient is taking remedial action
to correct the effects of past discrimination pursuant to Sec. 104.6(a) or when
a recipient is taking voluntary action to overcome the effects of conditions
that resulted in limited participation in its federally assisted program or
activity pursuant to Sec. 104.6(b), the recipient may invite applicants for
admission to indicate whether and to what extent they are handicapped,
Provided, That:
(1) The recipient states clearly on any written questionnaire used for this
purpose or makes clear orally if no written questionnaire is used that the
information requested is intended for use solely in connection with its
remedial action obligations or its voluntary action efforts; and
(2) The recipient states clearly that the information is being requested on a
voluntary basis, that it will be kept confidential, that refusal to provide it
will not subject the applicant to any adverse treatment, and that it will be
used only in accordance with this part.
[[Page 349]]
(d) Validity studies. For the purpose of paragraph (b)(2) of this
section, a recipient may base prediction equations on first year grades, but
shall conduct periodic validity studies against the criterion of overall
success in the education program or activity in question in order to monitor
the general validity of the test scores.
Sec. 104.43 Treatment of students; general.
(a) No qualified handicapped student shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any academic, research,
occupational training, housing, health insurance, counseling, financial aid,
physical education, athletics, recreation, transportation, other
extracurricular, or other postsecondary education program or activity to which
this subpart applies.
(b) A recipient to which this subpart applies that considers participation by
students in education programs or activities not operated wholly by the
recipient as part of, or equivalent to, and education program or activity
operated by the recipient shall assure itself that the other education program
or activity, as a whole, provides an equal opportunity for the participation of
qualified handicapped persons.
(c) A recipient to which this subpart applies may not, on the basis of
handicap, exclude any qualified handicapped student from any course, course of
study, or other part of its education program or activity.
(d) A recipient to which this subpart applies shall operate its programs and
activities in the most integrated setting appropriate.
Sec. 104.44 Academic adjustments.
(a) Academic requirements. A recipient to which this subpart
applies shall make such modifications to its academic requirements as are
necessary to ensure that such requirements do not discriminate or have the
effect of discriminating, on the basis of handicap, against a qualified
handicapped applicant or student. Academic requirements that the recipient can
demonstrate are essential to the program of instruction being pursued by such
student or to any directly related licensing requirement will not be regarded
as discriminatory within the meaning of this section. Modifications may include
changes in the length of time permitted for the completion of degree
requirements, substitution of specific courses required for the completion of
degree requirements, and adaptation of the manner in which specific courses are
conducted.
(b) Other rules. A recipient to which this subpart applies may not impose upon
handicapped students other rules, such as the prohibition of tape recorders in
classrooms or of dog guides in campus buildings, that have the effect of
limiting the participation of handicapped students in the recipient's education
program or activity.
(c) Course examinations. In its course examinations or other procedures for
evaluating students' academic achievement in its program, a recipient to which
this subpart applies shall provide such methods for evaluating the achievement
of students who have a handicap that impairs sensory, manual, or speaking
skills as will best ensure that the results of the evaluation represents the
student's achievement in the course, rather than reflecting the student's
impaired sensory, manual, or speaking skills (except where such skills are the
factors that the test purports to measure).
(d) Auxiliary aids. (1) A recipient to which this subpart applies shall take
such steps as are necessary to ensure that no handicapped student is denied the
benefits of, excluded from participation in, or otherwise subjected to
discrimination under the education program or activity operated by the
recipient because of the absence of educational auxiliary aids for students
with impaired sensory, manual, or speaking skills.
(2) Auxiliary aids may include taped texts, interpreters or other effective
methods of making orally delivered materials available to students with hearing
impairments, readers in libraries for students with visual impairments,
classroom equipment adapted for use by students with manual impairments, and
other similar services
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and actions. Recipients need not provide attendants, individually
prescribed devices, readers for personal use or study, or other devices or
services of a personal nature.
Sec. 104.45 Housing.
(a) Housing provided by the recipient. A recipient that provides
housing to its nonhandicapped students shall provide comparable, convenient,
and accessible housing to handicapped students at the same cost as to others.
At the end of the transition period provided for in subpart C, such housing
shall be available in sufficient quantity and variety so that the scope of
handicapped students' choice of living accommodations is, as a whole,
comparable to that of nonhandicapped students.
(b) Other housing. A recipient that assists any agency, organization, or person
in making housing available to any of its students shall take such action as
may be necessary to assure itself that such housing is, as a whole, made
available in a manner that does not result in discrimination on the basis of
handicap.
Sec. 104.46 Financial and employment assistance to students.
(a) Provision of financial assistance. (1) In providing financial
assistance to qualified handicapped persons, a recipient to which this subpart
applies may not,
(i) On the basis of handicap, provide less assistance than is provided to
nonhandicapped persons, limit eligibility for assistance, or otherwise
discriminate or
(ii) Assist any entity or person that provides assistance to any of the
recipient's students in a manner that discriminates against qualified
handicapped persons on the basis of handicap.
(2) A recipient may administer or assist in the administration of scholarships,
fellowships, or other forms of financial assistance established under wills,
trusts, bequests, or similar legal instruments that require awards to be made
on the basis of factors that discriminate or have the effect of discriminating
on the basis of handicap only if the overall effect of the award of
scholarships, fellowships, and other forms of financial assistance is not
discriminatory on the basis of handicap.
(b) Assistance in making available outside employment. A recipient that assists
any agency, organization, or person in providing employment opportunities to
any of its students shall assure itself that such employment opportunities, as
a whole, are made available in a manner that would not violate subpart B if
they were provided by the recipient.
(c) Employment of students by recipients. A recipient that employs any of its
students may not do so in a manner that violates subpart B.
Sec. 104.47 Nonacademic services.
(a) Physical education and athletics. (1) In providing physical
education courses and athletics and similar programs and activities to any of
its students, a recipient to which this subpart applies may not disacriminate
on the basis of handicap. A recipient that offers physical education courses or
that operates or sponsors intercollegiate, club, or intramural athletics shall
provide to qualified handicapped students an equal opportunity for
participation in these activities.
(2) A recipient may offer to handicapped students physical education and
athletic activities that are separate or different only if separation or
differentiation is consistent with the requirements of Sec. 104.43(d) and only
if no qualified handicapped student is denied the opportunity to compete for
teams or to participate in courses that are not separate or different.
(b) Counseling and placement services. A recipient to which this subpart
applies that provides personal, academic, or vocational counseling, guidance,
or placement services to its students shall provide these services without
discrimination on the basis of handicap. The recipient shall ensure that
qualified handicapped students are not counseled toward more restrictive career
objectives than are nonhandicapped students with similar interests and
abilities. This requirement does not preclude a recipient from providing
factual information about licensing and certification requirements that may
present obstacles to handicapped
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persons in their pursuit of particular careers.
(c) Social organizations. A recipient that provides significant assistance to
fraternities, sororities, or similar organizations shall assure itself that the
membership practices of such organizations do not permit discrimination
otherwise prohibited by this subpart.
Subpart F--Health, Welfare, and Social Services
Sec. 104.51 Application of this subpart.
Subpart F applies to health, welfare, and other social service
programs and activities that receive or benefit from Federal financial
assistance and to recipients that operate, or that receive or benefit from
Federal financial assistance for the operation of, such programs or activities.
Sec. 104.52 Health, welfare, and other social services.
(a) General. In providing health, welfare, or other social services
or benefits, a recipient may not, on the basis of handicap:
(1) Deny a qualified handicapped person these benefits or services;
(2) Afford a qualified handicapped person an opportunity to receive benefits or
services that is not equal to that offered nonhandicapped persons;
(3) Provide a qualified handicapped person with benefits or services that are
not as effective (as defined in Sec. 104.4(b)) as the benefits or services
provided to others;
(4) Provide benefits or services in a manner that limits or has the effect of
limiting the participation of qualified handicapped persons; or
(5) Provide different or separate benefits or services to handicapped persons
except where necessary to provide qualified handicapped persons with benefits
and services that are as effective as those provided to others.
(b) Notice. A recipient that provides notice concerning benefits or services or
written material concerning waivers of rights or consent to treatment shall
take such steps as are necessary to ensure that qualified handicapped persons,
including those with impaired sensory or speaking skills, are not denied
effective notice because of their handicap.
(c) Emergency treatment for the hearing impaired. A recipient hospital that
provides health services or benefits shall establish a procedure for effective
communication with persons with impaired hearing for the purpose of providing
emergency health care.
(d) Auxiliary aids. (1) A recipient to which this subpart applies that employs
fifteen or more persons shall provide appropriate auxiliary aids to persons
with impaired sensory, manual, or speaking skills, where necessary to afford
such persons an equal opportunity to benefit from the service in question.
(2) The Assistant Secretary may require recipients with fewer than fifteen
employees to provide auxiliary aids where the provision of aids would not
significantly impair the ability of the recipient to provide its benefits or
services.
(3) For the purpose of this paragraph, auxiliary aids may include brailled and
taped material, interpreters, and other aids for persons with impaired hearing
or vision.
Sec. 104.53 Drug and alcohol addicts.
A recipient to which this subpart applies that operates a general
hospital or outpatient facility may not discriminate in admission or treatment
against a drug or alcohol abuser or alcoholic who is suffering from a medical
condition, because of the person's drug or alcohol abuse or alcoholism.
Sec. 104.54 Education of institutionalized persons.
A recipient to which this subpart applies and that operates or
supervises a program or activity for persons who are institutionalized because
of handicap shall ensure that each qualified handicapped person, as defined in
Sec. 104.3(k)(2), in its program or activity is provided an appropriate
education, as defined in Sec. 104.33(b). Nothing in this section shall be
interpreted as altering in any way the obligations of recipients under subpart
D.
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Subpart G--Procedures
Sec. 104.61 Procedures.
The procedural provisions applicable to title VI of the Civil
Rights Act of 1964 apply to this part. These procedures are found in Secs.
100.6-100.10 and part 101 of this title.
Appendix A to Part 104--Analysis of Final Regulation
Subpart A--General Provisions
Definitions--
1. Recipient. Section 104.23 contains definitions used throughout the
regulation. One comment requested that the regulation specify that nonpublic
elementary and secondary schools that are not otherwise recipients do not
become recipients by virtue of the fact their students participate in certain
federally funded programs. The Secretary believes it unnecessary to amend the
regulation in this regard, because almost identical language in the
Department's regulations implementing title VI and title IX of the Education
Amendments of 1972 has consistently been interpreted so as not to render such
schools recipients. These schools, however, are indirectly subject to the
substantive requirements of this regulation through the application of Sec.
104.4(b)(iv), which prohibits recipients from assisting agencies that
discriminate on the basis of handicap in providing services to beneficiaries of
the recipients' programs.
2. Federal financial assistance. In Sec. 104.3(h), defining federal financial
assistance, a clarifying change has been made: procurement contracts are
specifically excluded. They are covered, however, by the Department of Labor's
regulation under section 503. The Department has never considered such
contracts to be contracts of assistance; the explicit exemption has been added
only to avoid possible confusion. The proposed regulation's exemption of
contracts of insurance or guaranty has been retained. A number of comments
argued for its deletion on the ground that section 504, unlike title VI and
title IX, contains no statutory exemption for such contracts. There is no
indication, however, in the legislative history of the Rehabilitation Act of
1973 or of the amendments to that Act in 1974, that Congress intended section
504 to have a broader application, in terms of federal financial assistance,
than other civil rights statutes. Indeed, Congress directed that section 504 be
implemented in the same manner as titles VI and IX. In view of the long
established exemption of contracts of insurance or guaranty under title VI, we
think it unlikely that Congress intended section 504 to apply to such
contracts.
3. Handicapped person. Section 104.3(j), which defines the class of persons
protected under the regulation, has not been substantially changed. The
definition of handicapped person in paragraph (j)(1) conforms to the statutory
definition of handicapped person that is applicable to section 504, as set
forth in section 111(a) of the Rehabilitation Act Amendments of 1974, Pub. L.
93-516.
The first of the three parts of the statutory and regulatory definition
includes any person who has a physical or mental impairment that substantially
limits one or more major life activities. Paragraph (j)(2)(i) further defines
physical or mental impairments. The definition does not set forth a list of
specific diseases and conditions that constitute physical or mental impairments
because of the difficulty of ensuring the comprehensiveness of any such list.
The term includes, however, such diseases and conditions as orthopedic, visual,
speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental retardation,
emotional illness, and, as discussed below, drug addiction and alcoholism.
It should be emphasized that a physical or mental impairment does not
constitute a handicap for purposes of section 504 unless its severity is such
that it results in a substantial limitation of one or more major life
activities. Several comments observed the lack of any definition in the
proposed regulation of the phrase ``substantially limits.'' The Department does
not believe that a definition of this term is possible at this time.
A related issue raised by several comments is whether the definition of
handicapped person is unreasonably broad. Comments suggested narrowing the
definition in various ways. The most common recommendation was that only
``traditional'' handicaps be covered. The Department continues to believe,
however, that it has no flexibility within the statutory definition to limit
the term to persons who have those severe, permanent, or progressive conditions
that are most commonly regarded as handicaps. The Department intends, however,
to give particular attention in its enforcement of section 504 to eliminating
discrimination against persons with the severe handicaps that were the focus of
concern in the Rehabilitation Act of 1973.
The definition of handicapped person also includes specific limitations on what
persons are classified as handicapped under the regulation. The first of the
three parts of the definition specifies that only physical and mental handicaps
are included. Thus, environmental, cultural, and economic disadvantage are not
in themselves covered; nor are prison records, age, or homosexuality. Of
course, if a person who has any of these characteristics also has a physical or
mental handicap, the
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person is included within the definition of handicapped person. In
paragraph (j)(2)(i), physical or mental impairment is defined to include, among
other impairments, specific learning disabilities. The Department will
interpret the term as it is used in section 602 of the Education of the
Handicapped Act, as amended. Paragraph (15) of section 602 uses the term
``specific learning disabilities'' to describe such conditions as perceptual
handicaps, brain injury, minimal brain dysfunction, dyslexia, and developmental
aphasia. Paragraph (j)(2)(i) has been shortened, but not substantively changed,
by the deletion of clause (C), which made explicit the inclusion of any
condition which is mental or physical but whose precise nature is not at
present known. Clauses (A) and (B) clearly comprehend such conditions.
The second part of the statutory and regulatory definition of handicapped
person includes any person who has a record of a physical or mental impairment
that substantially limits a major life activity. Under the definition of
``record'' in paragraph (j)(2)(iii), persons who have a history of a
handicapping condition but no longer have the condition, as well as persons who
have been incorrectly classified as having such a condition, are protected from
discrimination under section 504. Frequently occurring examples of the first
group are persons with histories of mental or emotional illness, heart disease,
or cancer; of the second group, persons who have been misclassified as mentally
retarded.
The third part of the statutory and regulatory definition of handicapped person
includes any person who is regarded as having a physical or mental impairment
that substantially limits one or more major life activities. It includes many
persons who are ordinarily considered to be handicapped but who do not
technically fall within the first two parts of the statutory definition, such
as persons with a limp. This part of the definition also includes some persons
who might not ordinarily be considered handicapped, such as persons with
disfiguring scars, as well as persons who have no physical or mental impairment
but are treated by a recipient as if they were handicapped.
4. Drug addicts and alcoholics. As was the case during the first comment
period, the issue of whether to include drug addicts and alcoholics within the
definition of handicapped person was of major concern to many commenters. The
arguments presented on each side of the issue were similar during the two
comment periods, as was the preference of commenters for exclusion of this
group of persons. While some comments reflected misconceptions about the
implications of including alcoholics and drug addicts within the scope of the
regulation, the Secretary understands the concerns that underlie the comments
on this question and recognizes that application of section 504 to active
alcoholics and drug addicts presents sensitive and difficult questions that
must be taken into account in interpretation and enforcement. The Secretary has
carefully examined the issue and has obtained a legal opinion from the Attorney
General. That opinion concludes that drug addiction and alcoholism are
``physical or mental impairments'' within the meaning of section 7(6) of the
Rehabilitation Act of 1973, as amended, and that drug addicts and alcoholics
are therefore handicapped for purposes of section 504 if their impairment
substantially limits one of their major life activities. The Secretary
therefore believes that he is without authority to exclude these conditions
from the definition. There is a medical and legal consensus that alcoholism and
drug addiction are diseases, although there is disagreement as to whether they
are primarily mental or physical. In addition, while Congress did not focus
specifically on the problems of drug addiction and alcoholism in enacting
section 504, the committees that considered the Rehabilitation Act of 1973 were
made aware of the Department's long- standing practice of treating addicts and
alcoholics as handicapped individuals eligible for rehabilitation services
under the Vocational Rehabilitation Act.
The Secretary wishes to reassure recipients that inclusion of addicts and
alcoholics within the scope of the regulation will not lead to the consequences
feared by many commenters. It cannot be emphasized too strongly that the
statute and the regulation apply only to discrimination against qualified
handicapped persons solely by reason of their handicap. The fact that drug
addiction and alcoholism may be handicaps does not mean that these conditions
must be ignored in determining whether an individual is qualified for services
or employment opportunities. On the contrary, a recipient may hold a drug
addict or alcoholic to the same standard of performance and behavior to which
it holds others, even if any unsatisfactory performance or behavior is related
to the person's drug addiction or alcoholism. In other words, while an
alcoholic or drug addict may not be denied services or disqualified from
employment solely because of his or her condition, the behavioral
manifestations of the condition may be taken into account in determining
whether he or she is qualified. With respect to the employment of a drug addict
or alcoholic, if it can be shown that the addiction or alcoholism prevents
successful performance of the job, the person need not be provided the
employment opportunity in question. For example, in making employment
decisions, a recipient may judge addicts and alcoholics on the same basis it
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judges all other applicants and employees. Thus, a recipient may
consider--for all applicants including drug addicts and alcoholics--past
personnel records, absenteeism, disruptive, abusive, or dangerous behavior,
violations of rules and unsatisfactory work performance. Moreover, employers
may enforce rules prohibiting the possession or use of alcohol or drugs in the
work-place, provided that such rules are enforced against all employees. With
respect to other services, the implications of coverage, of alcoholics and drug
addicts are two-fold: first, no person may be excluded from services solely by
reason of the presence or history of these conditions; second, to the extent
that the manifestations of the condition prevent the person from meeting the
basic eligibility requirements of the program or cause substantial interference
with the operation of the program, the condition may be taken into
consideration. Thus, a college may not exclude an addict or alcoholic as a
student, on the basis of addiction or alcoholism, if the person can
successfully participate in the education program and complies with the rules
of the college and if his or her behavior does not impede the performance of
other students. Of great concern to many commenters was the question of what
effect the inclusion of drug addicts and alcoholics as handicapped persons
would have on school disciplinary rules prohibiting the use or possession of
drugs or alcohol by students. Neither such rules nor their application to drug
addicts or alcoholics is prohibited by this regulation, provided that the rules
are enforced evenly with respect to all students.
5. Qualified handicapped person. Paragraph (k) of Sec. 104.3 defines the term
``qualified handicapped person.'' Throughout the regulation, this term is used
instead of the statutory term ``otherwise qualified handicapped person.'' The
Department believes that the omission of the word ``otherwise'' is necessary in
order to comport with the intent of the statute because, read literally,
``otherwise'' qualified handicapped persons include persons who are qualified
except for their handicap, rather than in spite of their handicap. Under such a
literal reading, a blind person possessing all the qualifications for driving a
bus except sight could be said to be ``otherwise qualified'' for the job of
driving. Clearly, such a result was not intended by Congress. In all other
respects, the terms ``qualified'' and ``otherwise qualified'' are intended to
be interchangeable.
Section 104.3(k)(1) defines a qualified handicapped person with respect to
employment as a handicapped person who can, with reasonable accommodation,
perform the essential functions of the job in question. The term ``essential
functions'' does not appear in the corresponding provision of the Department of
Labor's section 503 regulation, and a few commenters objected to its inclusion
on the ground that a handicapped person should be able to perform all job
tasks. However, the Department believes that inclusion of the phrase is useful
in emphasizing that handicapped persons should not be disqualified simply
because they may have difficulty in performing tasks that bear only a marginal
relationship to a particular job. Further, we are convinced that inclusion of
the phrase is not inconsistent with the Department of Labor's application of
its definition. Certain commenters urged that the definition of qualified
handicapped person be amended so as explicitly to place upon the employer the
burden of showing that a particular mental or physical characteristic is
essential. Because the same result is achieved by the requirement contained in
paragraph (a) of Sec. 104.13, which requires an employer to establish that any
selection criterion that tends to screen out handicapped persons is
job-related, that recommendation has not been followed.
Section 104.3(k)(2) defines qualified handicapped person, with respect to
preschool, elementary, and secondary programs, in terms of age. Several
commenters recommended that eligibility for the services be based upon the
standard of substantial benefit, rather than age, because of the need of many
handicapped children for early or extended services if they are to have an
equal opportunity to benefit from education programs. No change has been made
in this provision, again because of the extreme difficulties in administration
that would result from the choice of the former standard. Under the remedial
action provisions of Sec. 104.6(a)(3), however, persons beyond the age limits
prescribed in Sec. 104.3(k)(2) may in appropriate cases be required to be
provided services that they were formerly denied because of a recipient's
violation of section 504.
Section 104.3(k)(2) states that a handicapped person is qualified for
preschool, elementary, or secondary services if the person is of an age at
which nonhandicapped persons are eligible for such services or at which State
law mandates the provision of educational services to handicapped persons. In
addition, the extended age ranges for which recipients must provide full
educational opportunity to all handicapped persons in order to be eligible for
assistance under the Education of the Handicapped Act--generally, 3-18 as of
September 1978, and 3-21 as of September 1980 are incorporated by reference in
this paragraph.
Section 104.3(k)(3) defines qualified handicapped person with respect to
postsecondary educational programs. As revised, the paragraph means that both
academic and technical standards must be met by applicants to these programs.
The term technical standards refers to all nonacademic admissions criteria
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that are essential to participation in the program in question.
6. General prohibitions against discrimination. Section 104.4 contains general
prohibitions against discrimination applicable to all recipients of assistance
from this Department.
Paragraph (b)(1(i) prohibits the exclusion of qualified handicapped persons
from aids, benefits, or services, and paragraph (ii) requires that equal
opportunity to participate or benefit be provided. Paragraph (iii) requires
that services provided to handicapped persons be as effective as those provided
to the nonhandicapped. In paragraph (iv), different or separate services are
prohibited except when necessary to provide equally effective benefits. In this
context, the term equally effective, defined in paragraph (b)(2), is intended
to encompass the concept of equivalent, as opposed to identical, services and
to acknowledge the fact that in order to meet the individual needs of
handicapped persons to the same extent that the corresponding needs of
nonhandicapped persons are met, adjustments to regular programs or the
provision of different programs may sometimes be necessary. This standard
parallels the one established under title VI of Civil Rights Act of 1964 with
respect to the provision of educational services to students whose primary
language is not English. See Lau v. Nichols, 414 U.S. 563 (1974). To be equally
effective, however, an aid, benefit, or service need not produce equal results;
it merely must afford an equal opportunity to achieve equal results. It must be
emphasized that, although separate services must be required in some instances,
the provision of unnecessarily separate or different services is
discriminatory. The addition to paragraph (b)(2) of the phrase ``in the most
integrated setting appropriated to the person's needs'' is intended to
reinforce this general concept. A new paragraph (b)(3) has also been added to
Sec. 104.4, requiring recipients to give qualified handicapped persons the
option of participating in regular programs despite the existence of
permissibly separate or different programs. The requirement has been reiterated
in Secs. 104.38 and 104.47 in connection with physical education and athletics
programs.
Section 104.4(b)(1)(v) prohibits a recipient from supporting another entity or
person that subjects participants or employees in the recipient's program to
discrimination on the basis of handicap. This section would, for example,
prohibit financial support by a recipient to a community recreational group or
to a professional or social organization that discriminates against handicapped
persons. Among the criteria to be considered in each case are the
substantiality of the relationship between the recipient and the other entity,
including financial support by the recipient, and whether the other entity's
activities relate so closely to the recipient's program or activity that they
fairly should be considered activities of the recipient itself.
Paragraph (b)(1)(vi) was added in response to comment in order to make explicit
the prohibition against denying qualified handicapped persons the opportunity
to serve on planning and advisory boards responsible for guiding federally
assisted programs or activities. Several comments appeared to interpret Sec.
104.4(b)(5), which proscribes discriminatory site selection, to prohibit a
recipient that is located on hilly terrain from erecting any new buildings at
its present site. That, of course, is not the case. This paragraph is not
intended to apply to construction of additional buildings at an existing site.
Of course, any such facilities must be made accessible in accordance with the
requirements of Sec. 104.23.
7. Assurances of compliance. Section 104.5(a) requires a recipient to submit to
the Assistant Secretary an assurance that each of its programs and activities
receiving or benefiting from Federal financial assistance from this Department
will be conducted in compliance with this regulation. Many commenters also
sought relief from the paperwork requirements imposed by the Department's
enforcement of its various civil rights responsibilities by requesting the
Department to issue one form incorporating title VI, title IX, and section 504
assurances. The Secretary is sympathetic to this request. While it is not
feasible to adopt a single civil rights assurance form at this time, the Office
for Civil Rights will work toward that goal.
8. Private rights of action. Several comments urged that the regulation
incorporate provision granting beneficiaries a private right of action against
recipients under section 504. To confer such a right is beyond the authority of
the executive branch of Government. There is, however, case law holding that
such a right exists. Lloyd v. Regional Transportation Authority, 548 F. 2d 1277
(7th Cir. 1977); see Hairston v. Drosick, Civil No. 75-0691 (S.D. W. Va., Jan.
14, 1976); Gurmankin v. Castanzo, 411 F. Supp. 982 (E.D. Pa. 1976); cf. Lau v.
Nichols, supra.
9. Remedial action. Where there has been a finding of discrimination, Sec.
104.6 requires a recipient to take remedial action to overcome the effects of
the discrimination. Actions that might be required under paragraph (a)(1)
include provision of services to persons previously discriminated against,
reinstatement of employees and development of a remedial action plan. Should a
recipient fail to take required remedial action, the ultimate sanctions of
court action or termination of Federal financial assistance may be imposed.
Paragraph (a)(2) extends the responsibility for taking remedial action to a
recipient that exercises control over a noncomplying
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recipient. Paragraph (a)(3) also makes clear that handicapped
persons who are not in the program at the time that remedial action is required
to be taken may also be the subject of such remedial action. This paragraph has
been revised in response to comments in order to include persons who would have
been in the program if discriminatory practices had not existed. Paragraphs (a)
(1), (2), and (3) have also been amended in response to comments to make plain
that, in appropriate cases, remedial action might be required to redress clear
violations of the statute itself that occurred before the effective date of
this
regulation.
10. Voluntary action. In Sec. 104.6(b), the term ``voluntary action'' has been
substituted for the term ``affirmative action'' because the use of the latter
term led to some confusion. We believe the term ``voluntary action'' more
accurately reflects the purpose of the paragraph. This provision allows action,
beyond that required by the regulation, to overcome conditions that led to
limited participation by handicapped persons, whether or not the limited
participation was caused by any discriminatory actions on the part of the
recipient. Several commenters urged that paragraphs (a) and (b) be revised to
require remedial action to overcome effects of prior discriminatory practices
regardless of whether there has been an express finding of discrimination. The
self-evaluation requirement in paragraph (c) accomplishes much the same
purpose.
11. Self-evaluation. Paragraph (c) requires recipients to conduct a
self-evaluation in order to determine whether their policies or practices may
discriminate against handicapped persons and to take steps to modify any
discriminatory policies and practices and their effects. The Department
received many comments approving of the addition to paragraph (c) of a
requirement that recipients seek the assistance of handicapped persons in the
self-evaluation process. This paragraph has been further amended to require
consultation with handicapped persons or organizations representing them before
recipients undertake the policy modifications and remedial steps prescribed in
paragraphs (c) (ii) and (iii).
Paragraph (c)(2), which sets forth the recordkeeping requirements concerning
self-evaluation, now applies only to recipients with fifteen or more employees.
This change was made as part of an effort to reduce unnecessary or
counterproductive administrative obligations on small recipients. For those
recipients required to keep records, the requirements have been made more
specific; records must include a list of persons consulted and a description of
areas examined, problems identified, and corrective steps taken. Moreover, the
records must be made available for public inspection.
12. Grievance procedure. Section 104.7 requires recipients with fifteen or more
employees to designate an individual responsible for coordinating its
compliance efforts and to adopt a grievance procedure. Two changes were made in
the section in response to comment. A general requirement that appropriate due
process procedures be followed has been added. It was decided that the details
of such procedures could not at this time be specified because of the varied
nature of the persons and entities who must establish the procedures and of the
programs to which they apply. A sentence was also added to make clear that
grievance procedures are not required to be made available to unsuccessful
applicants for employment or to applicants for admission to colleges and
universities. The regulation does not require that grievance procedures be
exhausted before recourse is sought from the Department. However, the Secretary
believes that it is desirable and efficient in many cases for complainants to
seek resolution of their complaints and disputes at the local level and
therefore encourages them to use available grievance procedures. A number of
comments asked whether compliance with this section or the notice requirements
of Sec. 104.8 could be coordinated with comparable action required by the title
IX regulation. The Department encourages such efforts.
13. Notice. Section 104.8 (formerly Sec. 84.9) sets forth requirements for
dissemination of statements of nondicrimination policy by recipients. It is
important that both handicapped persons and the public at large be aware of the
obligations of recipients under section 504. Both the Department and recipients
have responsibilities in this regard. Indeed the Department intends to
undertake a major public information effort to inform persons of their rights
under section 504 and this regulation. In Sec. 104.8 the Department has sought
to impose a clear obligation on major recipients to notify beneficiaries and
employees of the requirements of section 504, without dictating the precise way
in which this notice must be given. At the same time, we have avoided imposing
requirements on small recipients (those with fewer than fifteen employees) that
would create unnecessary and counterproductive paper work burdens on them and
unduly stretch the enforcement resources of the Department.
Section 104.8(a), as simplified, requires recipients with fifteen or more
employees to take appropriate steps to notify beneficiaries and employees of
the recipient's obligations under section 504. The last sentence of Sec.
104.8(a) has been revised to list possible, rather than required, means of
notification. Section 104.8(b) requires recipients to include
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a notification of their policy of nondiscrimination in recruitment
and other general information materials. In response to a number of comments,
Sec. 104.8 has been revised to delete the requirements of publication in local
newspapers, which has proved to be both troublesome and ineffective. Several
commenters suggested that notification on separate forms be allowed until
present stocks of publications and forms are depleted. The final regulation
explicitly allows this method of compliance. The separate form should, however,
be included with each significant publication or form that is distributed.
Section 104 which prohibited the use of materials that might give the
impression that a recipient excludes qualified handicapped persons from its
program, has been deleted. The Department is convinced by the comments that
this provision is unnecessary and difficult to apply. The Department encourages
recipients, however, to include in their recruitment and other general
information materials photographs of handicapped persons and ramps and other
features of accessible buildings. Under new Sec. 104.9 the Assistant Secretary
may, under certain circumstances, require recipients with fewer than fifteen
employees to comply with one or more of these requirements. Thus, if experience
shows a need for imposing notice or other requirements on particular recipients
or classes of small recipients, the Department is prepared to expand the
coverage of these sections.
14. Inconsistent State laws. Section 104.10(a) states that compliance with the
regulation is not excused by State or local laws limiting the eligibility of
qualified handicapped persons to receive services or to practice an occupation.
The provision thus applies only with respect to state or local laws that
unjustifiably differentiate on the basis of handicap. Paragraph (b) further
points out that the presence of limited employment opportunities in a
particular profession, does not excuse a recipient from complying with the
regulation. Thus, a law school could not deny admission to a blind applicant
because blind laywers may find it more difficult to find jobs than do
nonhandicapped lawyers.
Subpart B--Employment Practices
Subpart B prescribes requirements for nondiscrimination in the
employment practices of recipients of Federal financial assistance administered
by the Department. This subpart is consistent with the employment provisions of
the Department's regulation implementing title IX of the Education Amendments
of 1972 (34 CFR, part 106) and the regulation of the Department of Labor under
section 503 of the Rehabilitation Act, which requries certain Federal
contractors to take affirmative action in the employment and advancement of
qualified handicapped persons. All recipients subject to title IX are also
subject to this regulation. In addition, many recipients subject to this
regulation receive Federal procurement contracts in excess of $2,500 and are
therefore also subject to section 503.
15. Discriminatory practices. Section 104.11 sets forth general provisions with
respect to discrimination in employment. A new paragraph (a)(2) has been added
to clarify the employment obligations of recipients that receive Federal funds
under Part B of the Education of the Handicapped Act, as amended (EHA). Section
606 of the EHA obligates elementary or secondary school systems that receive
EHA funds to take positive steps to employ and advance in employment qualified
handicapped persons. This obligation is similar to the nondiscrimination
requirement of section 504 but requires recipients to take additional steps to
hire and promote handicapped persons. In enacting section 606 Congress chose
the words ``positive steps'' instead of ``affirmative action'' advisedly and
did not intend section 606 to incorporate the types of activities required
under Executive Order 11246 (affirmative action on the basis of race, color,
sex, or national origin) or under sections 501 and 503 of the Rehabilitation
Act of 1973. Paragraph (b) of Sec. 104.11 sets forth the specific aspects of
employment covered by the regulation. Paragraph (c) provides that inconsistent
provisions of collective bargaining agreements do not excuse noncompliance.
16. Reasonable accommodation. The reasonable accommodation requirement of Sec.
104.12 generated a substantial number of comments. The Department remains
convinced that its approach is both fair and effective. Moreover, the
Department of Labor reports that it has experienced little difficulty in
administering the requirements of reasonable accommodation. The provision
therefore remains basically unchanged from the proposed regulation.
Section 104.12 requires a recipient to make reasonable accommodation to the
known physical or mental limitations of a handicapped applicant or employee
unless the recipient can demonstrate that the accommodation would impose an
undue hardship on the operation of its program. Where a handicapped person is
not qualified to perform a particular job, where reasonable accommodation does
not overcome the effects of a person's handicap, or where reasonable
accommodation causes undue hardship to the employer, failure to hire or promote
the handicapped person will not be considered discrimination.
Section 104.12(b) lists some of the actions that constitute reasonable
accommodation. The list is neither all-inclusive nor meant to
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suggest that employers must follow all of the actions listed.
Reasonable accommodation includes modification of work schedules, including
part-time employment, and job restructuring. Job restructuring may entail
shifting nonessential duties to other employees. In other cases, reasonable
accommodation may include physical modifications or relocation of particular
offices or jobs so that they are in facilities or parts of facilities that are
accessible to and usable by handicapped persons. If such accommodations would
cause undue hardship to the employer, they need not be made. Paragraph (c) of
this section sets forth the factors that the Office for Civil Rights will
consider in determining whether an accommodation necessary to enable an
applicant or employee to perform the duties of a job would impose an undue
hardship. The weight given to each of these factors in making the determination
as to whether an accommodation constitutes undue hardship will vary depending
on the facts of a particular situation. Thus, a small day-care center might not
be required to expend more than a nominal sum, such as that necessary to equip
a telephone for use by a secretary with impaired hearing, but a large school
district might be required to make available a teacher's aide to a blind
applicant for a teaching job. The reasonable accommodation standard in Sec.
104.12 is similar to the obligation imposed upon Federal contractors in the
regulation implementing section 503 of the Rehabilitation Act of 1973,
administered by the Department of Labor. Although the wording of the reasonable
accommodation provisions of the two regulations is not identical, the
obligation that the two regulations impose is the same, and the Federal
Government's policy in implementing the two sections will be uniform. The
Department adopted the factors listed in paragraph (c) instead of the
``business necessity'' standard of the Labor regulation because that term
seemed inappropriate to the nature of the programs operated by the majority of
institutions subject to this regulation, e.g., public school systems, colleges
and universities. The factors listed in paragraph (c) are intended to make the
rationale underlying the business necessity standard applicable to an
understandable by recipients of ED funds.
17. Tests and selection criteria. Revised Sec. 104.13(a) prohibits employers
from using test or other selection criteria that screen out or tend to screen
out handicapped persons unless the test or criterion is shown to be job-related
and alternative tests or criteria that do not screen out or tend to screen out
as many handicapped persons are not shown by the Assistant Secretary to be
available. This paragraph is an application of the principle established under
title VII of the Civil Rights Act of 1964 in Griggs v. Duke Power Company, 401
U.S. 424 (1971). Under the proposed section, a statistical showing of adverse
impact on handicapped persons was required to trigger an employer's obligation
to show that employment criteria and qualifications relating to handicap were
necessary. This requirement was changed because the small number of handicapped
persons taking tests would make statistical showings of ``disproportionate,
adverse effect'' difficult and burdensome. Under the altered, more workable
provision, once it is shown that an employment test substantially limits the
opportunities of handicapped persons, the employer must show the test to be
job-related. A recipient is no longer limited to using predictive validity
studies as the method for demonstrating that a test or other selection
criterion is in fact job-related. Nor, in all cases, are predictive validity
studies sufficient to demonstrate that a test or criterion is job-related. In
addition, Sec. 104.13(a) has been revised to place the burden on the Assistant
Secretary, rather than the recipient, to identify alternate tests.
Section 104.13(b) requires that a recipient take into account that some tests
and criteria depend upon sensory, manual, or speaking skills that may not
themselves be necessary to the job in question but that may make the
handicapped person unable to pass the test. The recipient must select and
administer tests so as best to ensure that the test will measure the
handicapped person's ability to perform on the job rather than the person's
ability to see, hear, speak, or perform manual tasks, except, of course, where
such skills are the factors that the test purports to measure. For example, a
person with a speech impediment may be perfectly qualified for jobs that do not
or need not, with reasonable accommodation, require ability to speak clearly.
Yet, if given an oral test, the person will be unable to perform in a
satisfactory manner. The test results will not, therefore, predict job
performance but instead will reflect impaired speech.
18. Preemployment inquiries. Section 104.14, concerning preemployment
inquiries, generated a large number of comments. Commenters representing
handicapped persons strongly favored a ban on preemployment inquiries on the
ground that such inquiries are often used to discriminate against handicapped
persons and are not necessary to serve any legitimate interests of employers.
Some recipients, on the other hand, argued that preemployment inquiries are
necessary to determine qualifications of the applicant, safety hazards caused
by a particular handicapping condition, and accommodations that might be
required. The Secretary has concluded that a general prohibition of
preemployment inquiries is appropriate. However, a sentence has been
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added to paragraph (a) to make clear that an employer may inquire
into an applicant's ability to perform job-related tasks but may not ask if the
person has a handicap. For example, an employer may not ask on an employment
form if an applicant is visually impaired but may ask if the person has a
current driver's license (if that is a necessary qualification for the position
in question). Similarly, employers may make inquiries about an applicant's
ability to perform a job safely. Thus, an employer may not ask if an applicant
is an epileptic but may ask whether the person can perform a particular job
without endangering other employees.
Section 104.14(b) allows preemployment inquiries only if they are made in
conjunction with required remedial action to correct past discrimination, with
voluntary action to overcome past conditions that have limited the
participation of handicapped persons, or with obligations under section 503 of
the Rehabilitation Act of 1973. In these instances, paragraph (b) specifies
certain safeguards that must be followed by the employer. Finally, the revised
provision allows an employer to condition offers of employment to handicapped
persons on the results of medical examinations, so long as the examinations are
administered to all employees in a nondiscriminatory manner and the results are
treated on a confidential basis.
19. Specific acts of Discrimination. Sections 104.15 (recruitment), 104.16
(compensation), 104.17 (job classification and structure) and 104.18 (fringe
benefits) have been deleted from the regulation as unnecessarily duplicative of
Sec. 104.11 (discrimination prohibited). The deletion of these sections in no
way changes the substantive obligations of employers subject to this regulation
from those set forth in the July 16 proposed regulation. These deletions bring
the regulation closer in form to the Department of Labor's section 503
regulation. A proposed section, concerning fringe benefits, had allowed for
differences in benefits or contributions between handicapped and nonhandicapped
persons in situations only where such differences could be justified on an
actuarial basis. Section 104.11 simply bars discrimination in providing fringe
benefits and does not address the issue of actuarial differences. The
Department believes that currently available data and experience do not
demonstrate a basis for promulgating a regulation specifically allowing for
differences in benefits or contributions.
Subpart C--Program Accessibility
In general, Subpart C prohibits the exclusion of qualified
handicapped persons from federally assisted programs or activities because a
recipient's facilities are inaccessible or unusable.
20. Existing facilities. Section 104.22 maintains the same standard for
nondiscrimination in regard to existing facilities as was included in the
proposed regulation. The section states that a recipients program or activity,
when viewed in its entirety, must be readily accessible to and usable by
handicapped persons. Paragraphs (a) and (b) make clear that a recipient is not
required to make each of its existing facilities accessible to handicapped
persons if its program as a whole is accessible. Accessibility to the
recipient's program or activity may be achieved by a number of means, including
redesign of equipment, reassignment of classes or other services to accessible
buildings, and making aides available to beneficiaries. In choosing among
methods of compliance, recipients are required to give priority consideration
to methods that will be consistent with provision of services in the most
appropriate integrated setting. Structural changes in existing facilities are
required only where there is no other feasible way to make the recipient's
program accessible.
Under Sec. 104.22, a university does not have to make all of its existing
classroom buildings accessible to handicapped students if some of its buildings
are already accessible and if it is possible to reschedule or relocate enough
classes so as to offer all required courses and a reasonable selection of
elective courses in accessible facilities. If sufficient relocation of classes
is not possible using existing facilities, enough alterations to ensure program
accessibility are required. A university may not exclude a handicapped student
from a specifically requested course offering because it is not offered in an
accessible location, but it need not make every section of that course
accessible. Commenters representing several institutions of higher education
have suggested that it would be appropriate for one postsecondary institution
in a geographical area to be made accessible to handicapped persons and for
other colleges and universities in that area to participate in that school's
program, thereby developing an educational consortium for the postsecondary
education of handicapped students. The Department believes that such a
consortium, when developed and applied only to handicapped persons, would not
constitute compliance with Sec. 104.22, but would discriminate against
qualified handicapped persons by restricting their choice in selecting
institutions of higher education and would, therefore, be inconsistent with the
basic objectives of the statute. Nothing in this regulation, however, should be
read as prohibiting institutions from forming consortia for the benefit of all
students. Thus, if three colleges decide that it would be cost-efficient for
one college to offer biology, the second physics, and the third chemistry to
all students at the three colleges, the arrangement would not violate
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section 504. On the other hand, it would violate the regulation if
the same institutions set up a consortium under which one college undertook to
make its biology lab accessible, another its physics lab, and a third its
chemistry lab, and under which mobility-impaired handicapped students (but not
other students) were required to attend the particular college that is
accessible for the desired courses. Similarly, while a public school district
need not make each of its buildings completely accessible, it may not make only
one facility or part of a facility accessible if the result is to segregate
handicapped students in a single setting. All recipients that provide health,
welfare, or other social services may also comply with Sec. 104.22 by
delivering services at alternate accessible sites or making home visits. Thus,
for example, a pharmacist might arrange to make home deliveries of drugs. Under
revised Sec. 104.22(c), small providers of health, welfare, and social services
(those with fewer than fifteen employees) may refer a beneficiary to an
accessible provider of the desired service, but only if no means of meeting the
program accessibility requirement other than a significant alteration in
existing facilities is available. The referring recipient has the
responsibility of determining that the other provider is in fact accessible and
willing to provide the service. A recent change in the tax law may assist some
recipients in meeting their obligations under this section. Under section 2122
of the Tax Reform Act of 1976, recipients that pay federal income tax are
eligible to claim a tax deduction of up to $25,000 for architectural and
transportation modifications made to improve accessibility for handicapped
persons. See 42 FR 17870 (April 4, 1977), adopting 26 CFR 7.190. Several
commenters expressed concern about the feasibility of compliance with the
program accessibility standard. The Secretary believes that the standard is
flexible enough to permit recipients to devise ways to make their programs
accessible short of extremely expensive or impractical physical changes in
facilities. Accordingly, the section does not allow for waivers. The Department
is ready at all times to provide technical assistance to recipients in meeting
their program accessibility responsibilities. For this purpose, the Department
is establishing a special technical assistance unit. Recipients are encouraged
to call upon the unit staff for advice and guidance both on structural
modifications and on other ways of meeting the program accessibility
requirement. Paragraph (d) has been amended to require recipients to make all
nonstructural adjustments necessary for meeting the program accessibility
standard within sixty days. Only where structural changes in facilities are
necessary will a recipient be permitted up to three years to accomplish program
accessibility. It should be emphasized that the three-year time period is not a
waiting period and that all changes must be accomplished as expeditiously as
possible. Further, it is the Department's belief, after consultation with
experts in the field, that outside ramps to buildings can be constructed
quickly and at relatively low cost. Therefore, it will be expected that such
structural additions will be made promptly to comply with Sec. 104.22(d). The
regulation continues to provide, as did the proposed version, that a recipient
planning to achieve program accessibility by making structural changes must
develop a transition plan for such changes within six months of the effective
date of the regulation. A number of commenters suggested extending that period
to one year. The secretary believes that such an extension is unnecessary and
unwise. Planning for any necessary structural changes should be undertaken
promptly to ensure that they can be completed within the three-year period. The
elements of the transition plan as required by the regulation remain virtually
unchanged from the proposal but Sec. 104.22(d) now includes a requirement that
the recipient make the plan available for public inspection. Several commenters
expressed concern that the program accessibility standard would result in the
segregation of handicapped persons in educational institutions. The regulation
will not be applied to permit such a result. See Sec. 104.4(c)(2)(iv),
prohibiting unnecessarily separate treatment; Sec. 104.35, requiring that
students in elementary and secondary schools be educated in the most integrated
setting appropriate to their needs; and new Sec. 104.43(d), applying the same
standard to postsecondary education. We have received some comments from
organizations of handicapped persons on the subject of requiring, over an
extended period of time, a barrier-free environment--that is, requiring the
removal of all architectural barriers in existing facilities. The Department
has considered these comments but has decided to take no further action at this
time concerning these suggestions, believing that such action should only be
considered in light of experience in implementing the program accessibility
standard.
21. New construction. Section 104.23 requires that all new facilities, as well
as alterations that could affect access to and use of existing facilities, be
designed and constructed in a manner so as to make the facility accessible to
and usable by handicapped persons. Section 104.23(a) has been amended so that
it applies to each newly constructed facility if the construction was commenced
after the effective date of the regulation. The words ``if construction has
commenced'' will be
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considered to mean ``if groundbreaking has taken place.'' Thus, a
recipient will not be required to alter the design of a facility that has
progressed beyond groundbreaking prior to the effective date of the regulation.
Paragraph (b) requires certain alterations to conform to the requirement of
physical accessibility in paragraph (a). If an alteration is undertaken to a
portion of a building the accessibility of which could be improved by the
manner in which the alteration is carried out, the alteration must be made in
that manner. Thus, if a doorway or wall is being altered, the door or other
wall opening must be made wide enough to accommodate wheelchairs. On the other
hand, if the alteration consists of altering ceilings, the provisions of this
section are not applicable because this alteration cannot be done in a way that
affects the accessibility of that portion of the building. The phrase ``to the
maximum extent feasible'' has been added to allow for the occasional case in
which the nature of an existing facility is such as to make it impractical or
prohibitively expensive to renovate the building in a manner that results in
its being entirely barrier-free. In all such cases, however, the alteration
should provide the maximum amount of physical accessibility feasible.
Section 104.23(d) of the proposed regulation, providing for a limited deferral
of action concerning facilities that are subject to section 502 as well as
section 504 of the Act, has been deleted. The Secretary believes that the
provision is unnecessary and inappropriate to this regulation. The Department
will, however, seek to coordinate enforcement activities under this regulation
with those of the Architectural and Transportation Barriers Compliance Board.
Subpart D--Preschool, Elementary, and Secondary Education
Subpart D sets forth requirements for nondiscrimination in
preschool, elementary, secondary, and adult education programs and activities,
including secondary vocational education programs. In this context, the term
``adult education'' refers only to those educational programs and activities
for adults that are operated by elementary and secondary schools. The
provisions of Subpart D apply to state and local educational agencies. Although
the subpart applies, in general, to both public and private education programs
and activities that are federally assisted, Secs. 104.32 and 104.33 apply only
to public programs and Sec. 104.39 applies only to private programs; Secs.
104.35 and 104.36 apply both to public programs and to those private programs
that include special services for handicapped students. Subpart B generally
conforms to the standards established for the education of handicapped persons
in Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866
(D.D.C. 1972), Pennsylvania Association for Retarded Children v. Commonwealth
of Pennsylvania, 344 F. Supp. 1257 (E.D. 1971), 343 F. Supp. 279 (E.D. Pa.
1972), and Lebanks v. Spears, 60, F.R.D. 135 (E.D. La. 1973), as well as in the
Education of the Handicapped Act, as amended by Pub. L. 94-142 (the EHA). The
basic requirements common to those cases, to the EHA, and to this regulation
are
(1) that handicapped persons, regardless of the nature or severity of their
handicap, be provided a free appropriate public education,
(2) that handicapped students be educated with nonhandicapped students to the
maximum extent appropriate to their needs,
(3) that educational agencies undertake to identify and locate all unserved
handicapped children,
(4) that evaluation procedures be improved in order to avoid the inappropriate
education that results from the misclassification of students, and
(5) that procedural safeguard be established to enable parents and guardians to
influence decisions regarding the evaluation and placement of their children.
These requirements are designed to ensure that no handicapped child is excluded
from school on the basis of handicap and, if a recipient demonstrates that
placement in a regular educational setting cannot be achieved satisfactorily,
that the student is provided with adequate alternative services suited to the
student's needs without additional cost to the student's parents or guardian.
Thus, a recipient that operates a public school system must either educate
handicapped children in its regular program or provide such children with an
appropriate alternative education at public expense. It is not the intention of
the Department, except in extraordinary circumstances, to review the result of
individual placement and other educational decisions, so long as the school
district complies with the ``process'' requirements of this subpart (concerning
identification and location, evaluation, and due process procedures). However,
the Department will place a high priority on investigating cases which may
involve exclusion of a child from the education system or a pattern or practice
of discriminatory placements or education.
22. Location and notification. Section 104.32 requires public schools to take
steps annually to identify and locate handicapped children who are not
receiving an education and to publicize to handicapped children and their
parents the rights and duties established by section 504 and this regulation.
This section has been shortened without substantive change.
23. Free appropriate public education. Under Sec. 104.33(a), a recipient is
responsible for providing a free appropriate public education to each qualified
handicapped person who is in the recipient's jurisdiction. The word ``in''
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encompasses the concepts of both domicile and actual residence. If
a recipient places a child in a program other than its own, it remains
financially responsible for the child, whether or not the other program is
operated by another recipient or educational agency. Moreover, a recipient may
not place a child in a program that is inappropriate or that otherwise violates
the requirements of Subpart D. And in no case may a recipient refuse to provide
services to a handicapped child in its jurisdiction because of another person's
or entity's failure to assume financial responsibility.
Section 104.33(b) concerns the provision of appropriate educational services to
handicapped children. To be appropriate, such services must be designed to meet
handicapped children's individual educational needs to the same extent that
those of nonhandicapped children are met. An appropriate education could
consist of education in regular classes, education in regular classes with the
use of supplementary services, or special education and related services.
Special education may include specially designed instruction in classrooms, at
home, or in private or public institutions and may be accompanied by such
related services as developmental, corrective, and other supportive services
(including psychological, counseling, and medical diagnostic services). The
placement of the child must however, be consistent with the requirements of
Sec. 104.34 and be suited to his or her educational needs. The quality of the
educational services provided to handicapped students must equal that of the
services provided to nonhandicapped students; thus, handicapped student's
teachers must be trained in the instruction of persons with the handicap in
question and appropriate materials and equipment must be available. The
Department is aware that the supply of adequately trained teachers may, at
least at the outset of the imposition of this requirement, be insufficient to
meet the demand of all recipients. This factor will be considered in
determining the appropriateness of the remedy for noncompliance with this
section. A new Sec. 104.33(b)(2) has been added, which allows this requirement
to be met through the full implementation of an individualized education
program developed in accordance with the standards of the EHA. Paragraph (c) of
Sec. 104.33 sets forth the specific financial obligations of a recipient. If a
recipient does not itself provide handicapped persons with the requisite
services, it must assume the cost of any alternate placement. If, however, a
recipient offers adequate services and if alternate placement is chosen by a
student's parent or guardian, the recipient need not assume the cost of the
outside services. (If the parent or guardian believes that his or her child
cannot be suitably educated in the recipient's program, he or she may make use
of the procedures established in Sec. 104.36.) Under this paragraph, a
recipient's obligation extends beyond the provision of tuition payments in the
case of placement outside the regular program. Adequate transportation must
also be provided. Recipients must also pay for psychological services and those
medical services necessary for diagnostic and evaluative purposes. If the
recipient places a student, because of his or her handicap, in a program that
necessitates his or her being away from home, the payments must also cover room
and board and nonmedical care (including custodial and supervisory care). When
residential care is necessitated not by the student's handicap but by factors
such as the student's home conditions, the recipient is not required to pay the
cost of room and board. Two new sentences have been added to paragraph (c)(1)
to make clear that a recipient's financial obligations need not be met solely
through its own funds. Recipients may rely on funds from any public or private
source including insurers and similar third parties. The EHA requires a free
appropriate education to be provided to handicapped children ``no later than
September 1, 1978,'' but section 504 contains no authority for delaying
enforcement. To resolve this problem, a new paragraph (d) has been added to
Sec. 104.33. Section 104.33(d) requires recipients to achieve full compliance
with the free appropriate public education requirements of Sec. 104.33 as
expeditiously as possible, but in no event later than September 1, 1978. The
provision also makes clear that, as of the effective date of this regulation,
no recipient may exclude a qualified handicapped child from its educational
program. This provision against exclusion is consistent with the order of
providing services set forth in section 612(3) of the EHA, which places the
highest priority on providing services to handicapped children who are not
receiving an education.
24. Educational setting. Section 104.34 prescribes standards for educating
handicapped persons with nonhandicapped persons to the maximum extent
appropriate to the needs of the handicapped person in question. A handicapped
student may be removed from the regular educational setting only where the
recipient can show that the needs of the student would, on balance, be served
by placement in another setting. Although under Sec. 104.34, the needs of the
handicapped person are determinative as to proper placement, it should be
stressed that, where a handicapped student is so disruptive in a regular
classroom that the education of other students is significantly impaired, the
needs of the handicapped child cannot be met in that environment. Therefore,
regular placement would not be appropriate to his or
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her needs and would not be required by Sec. 104.34. Among the
factors to be considered in placing a child is the need to place the child as
close to home as possible. A new sentence has been added to paragraph (a)
requiring recipients to take this factor into account. As pointed out in
several comments, the parents' right under Sec. 104.36 to challenge the
placement of their child extends not only to placement in special classes or
separate schools but also to placement in a distant school and, in particular,
to residential placement. An equally appropriate educational program may exist
closer to home; this issue may be raised by the parent or guardian under Secs.
104.34 and 104.36. New paragraph (b) specified that handicapped children must
also be provided nonacademic services in as integrated a setting as possible.
This requirement is especially important for children whose educational needs
necessitate their being solely with other handicapped children during most of
each day. To the maximum extent appropriate, children in residential settings
are also to be provided opportunities for participation with other children.
Section 104.34(c) requires that any facilities that are identifiable as being
for handicapped students be comparable in quality to other facilities of the
recipient. A number of comments objected to this section on the basis that it
encourages the creation and maintenance of such facilities. This is not the
intent of the provision. A separate facility violates section 504 unless it is
indeed necessary to the provision of an appropriate education to certain
handicapped students. In those instances in which such facilities are necessary
(as might be the case, for example, for severely retarded persons), this
provision requires that the educational services provided be comparable to
those provided in the facilities of the recipient that are not identifiable as
being for handicapped persons.
25. Evaluation and placement. Because the failure to provide handicapped
persons with an appropriate education is so frequently the result of
misclassification or misplacement, Sec. 104.33(b)(1) makes compliance with its
provisions contingent upon adherence to certain procedures designed to ensure
appropriate classification and placement. These procedures, delineated in Secs.
104.35 and 104.36, are concerned with testing and other evaluation methods and
with procedural due process rights. Section 104.35(a) requires that an
individual evaluation be conducted before any action is taken with respect
either to the initial placement of a handicapped child in a regular or special
education program or to any subsequent significant change in that placement.
Thus, a full reevaluation is not required every time an adjustment in placement
is made. ``Any action'' includes denials of placement. Paragraphs (b) and (c)
of Sec. 104.35 establishes procedures designed to ensure that children are not
misclassified, unnecessarily labeled as being handicapped, or incorrectly
placed because of inappropriate selection, administration, or interpretation of
evaluation materials. This problem has been extensively documented in ``Issues
in the Classification of Children,'' a report by the Project on Classification
of Exceptional Children, in which the HEW Interagency Task Force participated.
The provisions of these paragraphs are aimed primarily at abuses in the
placement process that result from misuse of, or undue or misplaced reliance
on, standardized scholastic aptitude tests. Paragraph (b) has been shortened
but not substantively changed. The requirement in former subparagraph (1) that
recipients provide and administer evaluation materials in the native language
of the student has been deleted as unnecessary, since the same requirement
already exists under title VI and is more appropriately covered under that
statute. Paragraphs (1) and (2) are, in general, intended to prevent
misinterpretation and similar misuse of test scores and, in particular, to
avoid undue reliance on general intelligence tests. Subparagraph (3) requires a
recipient to administer tests to a student with impaired sensory, manual, or
speaking skills in whatever manner is necessary to avoid distortion of the test
results by the impairment. Former subparagraph (4) has been deleted as
unnecessarily repetitive of the other provisions of this paragraph. Paragraph
(c) requires a recipient to draw upon a variety of sources in the evaluation
process so that the possibility of error in classification is minimized. In
particular, it requires that all significant factors relating to the learning
process, including adaptive behavior, be considered. (Adaptive behavior is the
effectiveness with which the individual meets the standards of personal
independence and social responsibility expected of his or her age and cultural
group.) Information from all sources must be documented and considered by a
group of persons, and the procedure must ensure that the child is placed in the
most integrated setting appropriate. The proposed regulation would have
required a complete individual reevaluation of the student each year. The
Department has concluded that it is inappropriate in the section 504 regulation
to require full reevaluations on such a rigid schedule. Accordingly, Sec.
104.35(c) requires periodic reevaluations and specifies that reevaluations in
accordance with the EHA will constitute compliance. The proposed regulation
implementing the EHA allows reevaluation at three-year intervals except under
certain specified circumstances.
[[Page 364]]
Under Sec. 104.36, a recipient must establish a system of due
process procedures to be afforded to parents or guardians before the recipient
takes any action regarding the identification, evaluation, or educational
placement of a person who, because of handicap, needs or is believed to need
special education or related services. This section has been revised. Because
the due process procedures of the EHA, incorporated by reference in the
proposed section 504 regulation, are inappropriate for some recipients not
subject to that Act, the section now specifies minimum necessary procedures:
notice, a right to inspect records, an impartial hearing with a right to
representation by counsel, and a review procedure. The EHA procedures remain
one means of meeting the regulation's due process requirements, however, and
are recommended to recipients as a model.
26. Nonacademic services. Section 104.37 requires a recipient to provide
nonacademic and extracurricular services and activities in such manner as is
necessary to afford handicapped students an equal opportunity for
participation. Because these services and activities are part of a recipient's
education program, they must, in accordance with the provisions of Sec. 104.34,
be provided in the most integrated setting appropriate. Revised paragraph
(c)(2) does permit separation or differentiation with respect to the provision
of physical education and athletics activities, but only if qualified
handicapped students are also allowed the opportunity to compete for regular
teams or participate in regular activities. Most handicapped students are able
to participate in one or more regular physical education and athletics
activities. For example, a student in a wheelchair can participate in regular
archery course, as can a deaf student in a wrestling course. Finally, the
one-year transition period provided in a proposed section was deleted in
response to the almost unanimous objection of commenters to that provision.
27. Preschool and adult education. Section 104.38 prohibits discrimination on
the basis of handicap in preschool and adult education programs. Former
paragraph (b), which emphasized that compensatory programs for disadvantaged
children are subject to section 504, has been deleted as unnecessary, since it
is comprehended by paragraph (a).
28. Private education. Section 104.39 sets forth the requirements applicable to
recipients that operate private education programs and activities. The
obligations of these recipients have been changed in two significant respects:
first, private schools are subject to the evaluation and due process provisions
of the subpart only if they operate special education programs; second, under
Sec. 104.39(b), they may charge more for providing services to handicapped
students than to nonhandicapped students to the extent that additional charges
can be justified by increased costs. Paragraph (a) of Sec. 104.39 is intended
to make clear that recipients that operate private education programs and
activities are not required to provide an appropriate education to handicapped
students with special educational needs if the recipient does not offer
programs designed to meet those needs. Thus, a private school that has no
program for mentally retarded persons is neither required to admit such a
person into its program nor to arrange or pay for the provision of the person's
education in another program. A private recipient without a special program for
blind students, however, would not be permitted to exclude, on the basis of
blindness, a blind applicant who is able to participate in the regular program
with minor adjustments in the manner in which the program is normally offered.
Subpart E--Postsecondary Education
Subpart E prescribes requirements for nondiscrimination in
recruitment, admission, and treatment of students in postsecondary education
programs and activities, including vocational education.
29. Admission and recruitment. In addition to a general prohibition of
discrimination on the basis of handicap in Sec. 104.42(a), the regulation
delineates, in Sec. 104.42(b), specific prohibitions concerning the
establishment of limitations on admission of handicapped students, the use of
tests or selection criteria, and preadmission inquiry. Several changes have
been made in this provision. Section 104.42(b) provides that postsecondary
educational institutions may not use any test or criterion for admission that
has a disproportionate, adverse effect on handicapped persons unless it has
been validated as a predictor of academic success and alternate tests or
criteria with a less disproportionate, adverse effect are shown by the
Department to be available. There are two significant changes in this approach
from the July 16 proposed regulation. First, many commenters expressed concern
that Sec. 104.42(b)(2)(ii) could be interpreted to require a ``global search''
for alternate tests that do not have a disproportionate, adverse impact on
handicapped persons. This was not the intent of the provision and, therefore,
it has been amended to place the burden on the Assistant Secretary for Civil
Rights, rather than on the recipient, to identify alternate tests. Second, a
new paragraph (d), concerning validity studies, has been added. Under the
proposed regulation, overall success in an education program, not just
first-year grades, was the criterion against which admissions tests were to be
validated. This approach has been changed to reflect the comment of
professional testing services that
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use of first year grades would be less disruptive of present
practice and that periodic validity studies against overall success in the
education program would be sufficient check on the reliability of first- year
grades. Section 104.42(b)(3) also requires a recipient to assure itself that
admissions tests are selected and administered to applicants with impaired
sensory, manual, or speaking skills in such manner as is necessary to avoid
unfair distortion of test results. Methods have been developed for testing the
aptitude and achievement of persons who are not able to take written tests or
even to make the marks required for mechanically scored objective tests; in
addition, methods for testing persons with visual or hearing impairments are
available. A recipient, under this paragraph, must assure itself that such
methods are used with respect to the selection and administration of any
admissions tests that it uses. Section 104.42(b)(3)(iii) has been amended to
require that admissions tests be administered in facilities that, on the whole,
are accessible. In this context, ``on the whole'' means that not all of the
facilities need be accessibile so long as a sufficient number of facilities are
available to handicapped persons. Revised Sec. 104.42(b)(4) generally prohibits
preadmission inquiries as to whether an applicant has a handicap. The
considerations that led to this revision are similar to those underlying the
comparable revision of Sec. 104.14 on preemployment inquiries. The regulation
does, however, allow inquiries to be made, after admission but before
enrollment, as to handicaps that may require accommodation. New paragraph (c)
parallels the section on preemployment inquiries and allows postsecondary
institutions to inquire about applicants' handicaps before admission, subject
to certain safeguards, if the purpose of the inquiry is to take remedial action
to correct past discrimination or to take voluntary action to overcome the
limited participation of handicapped persons in postsecondary educational
institutions. Proposed Sec. 104.42(c), which would have allowed different
admissions criteria in certain cases for handicapped persons, was widely
misinterpreted in comments from both handicapped persons and recipients. We
have concluded that the section is unnecessary, and it has been deleted.
30. Treatment of students. Section 104.43 contains general provisions
prohibiting the discriminatory treatment of qualified handicapped applicants.
Paragraph (b) requires recipients to ensure that equal opportunities are
provided to its handicapped students in education programs and activities that
are not operated by the recipient. The recipient must be satisfied that the
outside education program or activity as a whole is nondiscriminatory. For
example, a college must ensure that discrimination on the basis of handicap
does not occur in connection with teaching assignments of student teachers in
elementary or secondary schools not operated by the college. Under the ``as a
whole'' wording, the college could continue to use elementary or secondary
school systems that discriminate if, and only if, the college's student
teaching program, when viewed in its entirety, offered handicapped student
teachers the same range and quality of choice in student teaching assignments
afforded nonhandicapped students. Paragraph (c) of this section prohibits a
recipient from excluding qualified handicapped students from any course, course
of study, or other part of its education program or activity. This paragraph is
designed to eliminate the practice of excluding handicapped persons from
specific courses and from areas of concentration because of factors such as
ambulatory difficulties of the student or assumptions by the recipient that no
job would be available in the area in question for a person with that handicap.
New paragraph (d) requires postsecondary institutions to operate their programs
and activities so that handicapped students are provided services in the most
integrated setting appropriate. Thus, if a college had several elementary
physics classes and had moved one such class to the first floor of the science
building to accommodate students in wheelchairs, it would be a violation of
this paragraph for the college to concentrate handicapped students with no
mobility impairments in the same class.
31. Academic adjustments. Paragraph (a) of Sec. 104.44 requires that a
recipient make certain adjustments to academic requirements and practices that
discriminate or have the effect of discriminating on the basis of handicap.
This requirement, like its predecessor in the proposed regulation, does not
obligate an institution to waive course or other academic requirements. But
such institutions must accommodate those requirements to the needs of
individual handicapped students. For example, an institution might permit an
otherwise qualified handicapped student who is deaf to substitute an art
appreciation or music history course for a required course in music
appreciation or could modify the manner in which the music appreciation course
is conducted for the deaf student. It shoud be stressed that academic
requirements that can be demonstrated by the recipient to be essential to its
program of instruction or to particular degrees need not be changed.
Paragraph (b) provides that postsecondary institutions may not impose rules
that have the effect of limiting the participation of handicapped students in
the education program. Such rules include prohibition of tape recorders or
braillers in classrooms and dog
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guides in campus buildings. Several recipients expressed concern
about allowing students to tape record lectures because the professor may later
want to copyright the lectures. This problem may be solved by requiring
students to sign agreements that they will not release the tape recording or
transcription or otherwise hinder the professor's ability to obtain a
copyright. Paragraph (c) of this section, concerning the administration of
course examinations to students with impaired sensory, manual, or speaking
skills, parallels the regulation's provisions on admissions testing (Sec.
104.42(b)) and will be similarly interpreted. Under Sec. 104.44(d), a recipient
must ensure that no handicapped student is subject to discrimination in the
recipient's program because of the absence of necessary auxiliary educational
aids. Colleges and universities expressed concern about the costs of compliance
with this provision. The Department emphasizes that recipients can usually meet
this obligation by assisting students in using existing resources for auxiliary
aids such as state vocational rehabilitation agencies and private charitable
organizations. Indeed, the Department anticipates that the bulk of auxiliary
aids will be paid for by state and private agencies, not by colleges or
universities. In those circumstances where the recipient institution must
provide the educational auxiliary aid, the institution has flexibility in
choosing the methods by which the aids will be supplied. For example, some
universities have used students to work with the institution's handicapped
students. Other institutions have used existing private agencies that tape
texts for handicapped students free of charge in order to reduce the number of
eaders needed for visually impaired students. As long as no handicapped person
is excluded from a program because of the lack of an appropriate aid, the
recipient need not have all such aids on hand at all times. Thus, readers need
not be available in the recipient's library at all times so long as the
schedule of times when a reader is available is established, is adhered to, and
is sufficient. Of course, recipients are not required to maintain a complete
braille library.
32. Housing. Section 104.45(a) requires postsecondary institutions to provide
housing to handicapped students at the same cost as they provide it to other
students and in a convenient, accessible, and comparable manner. Commenters,
particularly blind persons pointed out that some handicapped persons can live
in any college housing and need not wait to the end of the transition period in
subpart C to be offered the same variety and scope of housing accommodations
given to nonhandicapped persons. The Department concurs with this position and
will interpret this section accordingly. A number of colleges and universities
reacted negatively to paragraph (b) of this section. It provides that, if a
recipient assists in making off-campus housing available to its students, it
should develop and implement procedures to assure itself that off-campus
housing, as a whole, is available to handicapped students. Since postsecondary
institutions are presently required to assure themselves that off-campus
housing is provided in a manner that does not discriminate on the basis of sex
(Sec. 106.32 of the title IX regulation), they may use the procedures developed
under title IX in order to comply with Sec. 104.45(b). It should be emphasized
that not every off-campus living accommodation need be made accessible to
handicapped persons.
33. Health and insurance. A proposed section, providing that recipients may not
discriminate on the basis of handicap in the provision of health related
services, has been deleted as duplicative of the general provisions of Sec.
104.43. This deletion represents no change in the obligation of recipients to
provide nondiscriminatory health and insurance plans. The Department will
continue to require that nondiscriminatory health services be provided to
handicapped students. Recipients are not required, however, to provide
specialized services and aids to handicapped persons in health programs. If,
for example, a college infirmary treats only simple disorders such as cuts,
bruises, and colds, its obligation to handicapped persons is to treat such
disorders for them.
34. Financial assistance. Section 104.46(a), prohibiting discrimination in
providing financial assistance, remains substantively the same. It provides
that recipients may not provide less assistance to or limit the eligibility of
qualified handicapped persons for such assistance, whether the assistance is
provided directly by the recipient or by another entity through the recipient's
sponsorship. Awards that are made under wills, trusts, or similar legal
instruments in a discriminatory manner are permissible, but only if the overall
effect of the recipient's provision of financial assistance is not
discriminatory on the basis of handicap. It will not be considered
discriminatory to deny, on the basis of handicap, an athletic scholarship to a
handicapped person if the handicap renders the person unable to qualify for the
award. For example, a student who has a neurological disorder might be denied a
varsity football scholarship on the basis of his inability to play football,
but a deaf person could not, on the basis of handicap, be denied a scholarship
for the school's diving team. The deaf person could, however, be denied a
scholarship on the basis of comparative diving ability. Commenters on Sec.
104.46(b), which applies to assistance in obtaining outside employment for
students, expressed similar concerns to
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those raised under Sec. 104.43(b), concerning cooperative programs.
This paragraph has been changed in the same manner as Sec. 104.43(b) to include
the ``as a whole'' concept and will be interpreted in the same manner as Sec.
104.43(b).
35. Nonacademic services. Section 104.47 establishes nondiscrimination
standards for physical education and athletics counseling and placement
services, and social organizations. This section sets the same standards as
does Sec. 104.38 of subpart D, discussed above, and will be interpreted in a
similar fashion.
Subpart F--Health, Welfare, and Social Services
Subpart F applies to recipients that operate health, welfare, and
social service programs. The Department received fewer comments on this subpart
than on others.
Although many commented that subpart F lacked specificity, these commenters
provided neither concrete suggestions nor additions. Nevertheless, some changes
have been made, pursuant to comment, to clarify the obligations of recipients
in specific areas. In addition, in an effort to reduce duplication in the
regulation, the section governing recipients providing health services has been
consolidated with the section regulating providers of welfare and social
services. Since the separate provisions that appeared in the proposed
regulation were almost identical, no substantive change should be inferred from
their consolidation.
Several commenters asked whether subpart F applies to vocational rehabilitation
agencies whose purpose is to assist in the rehabilitation of handicapped
persons. To the extent that such agencies receive financial assistance from the
Department, they are covered by subpart F and all other relevant subparts of
the regulation. Nothing in this regulation, however, precludes such agencies
from servicing only handicapped persons. Indeed, Sec. 104.4(c) permits
recipients to offer services or benefits that are limited by federal law to
handicapped persons or classes of handicapped persons. Many comments suggested
requiring state social service agencies to take an active role in the
enforcement of section 504 with regard to local social service providers. The
Department believes that the possibility for federal-state cooperation in the
administration and enforcement of section 504 warrants further consideration.
A number of comments also discussed whether section 504 should be read to
require payment of compensation to institutionalized handicapped patients who
perform services for the institution in which they reside. The Department of
Labor has recently issued a proposed regulation under the Fair Labor Standards
Act (FLSA) that covers the question of compensation for institutionalized
persons. 42 FR 15224 (March 18, 1977). This Department will seek information
and comment from the Department of Labor concerning that agency's experience
administering the FLSA regulation.
36. Health, welfare, and other social service providers. Section 104.52(a) has
been expanded in several respects. The addition of new paragraph (a)(2) is
intended to make clear the basic requirement of equal opportunity to receive
benefits or services in the health, welfare, and social service areas. The
paragraph parallels Secs. 104.4(b)(ii) and 104.43(b). New paragaph (a)(3)
requires the provision of effective benefits or services, as defined in Sec.
104.4(b)(2) (i.e., benefits or services which ``afford handicapped persons
equal opportunity to obtain the same result (or) to gain the same benefit * *
*''). Section 104.52(a) also includes provisions concerning the limitation of
benefits or services to handicapped persons and the subjection of handicapped
persons to different eligibility standards. One common misconception about the
regulation is that it would require specialized hospitals and other health care
providers to treat all handicapped persons. The regulation makes no such
requirement. Thus, a burn treatment center need not provide other types of
medical treatment to handicapped persons unless it provides such medical
services to nonhandicapped persons. It could not, however, refuse to treat the
burns of a deaf person because of his or her deafness. Commenters had raised
the question of whether the prohibition against different standards of
eligibility might preclude recipients from providing special services to
handicapped persons or classes of handicapped persons. The regulation will not
be so interpreted, and the specific section in question has been eliminated.
Section 104.4(c) makes clear that special programs for handicapped persons are
permitted. A new paragraph (a)(5) concerning the provision of different or
separate services or benefits has been added. This provision prohibits such
treatment unless necessary to provide qualified handicapped persons with
benefits and services that are as effective as those provided to others.
Section 104.52(b) has been amended to cover written material concerning waivers
of rights or consent to treatment as well as general notices concerning health
benefits or services. The section requires the recipient to ensure that
qualified handicapped persons are not denied effective notice because of their
handicap. For example, recipients could use several different types of notice
in order to reach persons with impaired vision or hearing, such as brailled
messages, radio spots, and tacticle devices on cards or envelopes to inform
blind persons of the need to call the recipient for further information.
Section 104.52(c) is a new section requiring recipient hospitals to establish a
procedure for effective communication with persons
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with impaired hearing for the purpose of providing emergency health
care. Although it would be appropriate for a hospital to fulfill its
responsibilities under this section by having a full-time interpreter for the
deaf on staff, there may be other means of accomplishing the desired result of
assuring that some means of communication is immediately available for deaf
persons needing emergency treatment. Section 104.52(c), also a new provision,
requires recipients with fifteen or more employees to provide appropriate
auxiliary aids for persons with impaired sensory, manual, or speaking skills.
Further, the Assistant Secretary may require a small provider to furnish
auxiliary aids where the provision of aids would not adversely affect the
ability of the recipient to provide its health benefits or service.
37. Treatment of Drug Addicts and Alcoholics. Section 104.53 is a new section
that prohibits discrimination in the treatment and admission of drug and
alcohol addicts to hospitals and outpatient facilities. Section 104.53
prohibits discrimination against drug abusers by operators of outpatient
facilities, despite the fact that section 407 pertains only to hospitals,
because of the broader application of section 504. This provision does not mean
that all hospitals and outpatient facilities must treat drug addiction and
alcoholism. It simply means, for example, that a cancer clinic may not refuse
to treat cancer patients simply because they are also alcoholics. 38. Education
of institutionalized persons. The regulation retains Sec. 104.54 of the
proposed regulation that requires that an appropriate education be provided to
qualified handicapped persons who are confined to residential institutions or
day care centers.
Subpart G--Procedures
In Sec. 104.61, the Secretary has adopted the title VI complaint
and enforcement procedures for use in implementing section 504 until such time
as they are superseded by the issuance of a consolidated procedureal regulation
applicable to all of the civil rights statutes and executive orders
administered by the Department.
[45 FR 30936, May 9, 1980, as amended at 55 FR 52141, Dec. 19,
1990]
Appendix B to Part 104--Guidelines for Eliminating Discrimination
and Denial of Services on the Basis of Race, Color, National Origin, Sex, and
Handicap in Vocational Education Programs
Editorial Note: For the text of these guidelines, see 34 CFR part 100, appendix
B.