[Code of Federal Regulations]

[Title 34, Volume 1]

[Revised as of July 1, 2005]

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

[CITE: 34CFR104.61]



[Page 385-402]

 

                           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.



[[Page 386]]



          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 387]]



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 388]]



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



[[Page 389]]



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



[[Page 390]]



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.



[[Page 391]]



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



[[Page 392]]



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



[[Page 395]]



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



[[Page 396]]



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



[[Page 397]]



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



[[Page 398]]



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 399]]



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



[[Page 400]]



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.



[[Page 401]]



             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 402]]



    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.