[Code of Federal Regulations]
[Title 34, Volume 1]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 34CFR104.61]

[Page 357-374]
 
                           TITLE 34--EDUCATION
 
       CHAPTER I--OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION
 
PART 104--NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
 
                          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 Sec. Sec.  
100.6-100.10 and part 101 of this title.

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          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 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

[[Page 359]]

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 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

[[Page 360]]

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 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

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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 
Sec. Sec.  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 
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

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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 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.

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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 
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

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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 
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

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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 
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

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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 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

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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, 
Sec. Sec.  104.32 and 104.33 apply only to public programs and Sec.  
104.39 applies only to private programs; Sec. Sec.  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'' 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

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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 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

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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 Sec. Sec.  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 Sec. Sec.  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.
    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

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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 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

[[Page 371]]

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 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

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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 readers 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 
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.

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             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 Sec. Sec.  
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 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.

[[Page 374]]

    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.