[Code of Federal Regulations]

[Title 45, Volume 1]

[Revised as of October 1, 2006]

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

[CITE: 45CFR85.42]



[Page 388-389]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

PART 85_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF HEALTH AND HUMAN 

SERVICES--Table of Contents

 

Sec.  85.42  Program accessibility: Existing facilities.



    (a) General. The agency shall operate each program or activity so 

that the program or activity, when viewed in its entirety, is readily 

accessible to and usable by individuals with handicaps. This paragraph 

does not--

    (1) Necessarily require the agency to make each of its existing 

facilities accessible to and usable by individuals with handicaps; or



[[Page 389]]



    (2) Require the agency to take any action that it can demonstrate 

would result in a fundamental alteration in the nature of a program or 

activity or in undue financial and administrative burdens. In those 

circumstances where agency personnel believe that the proposed action 

would fundamentally alter the program or activity or would result in 

undue financial and administrative burdens, the agency has the burden of 

proving that compliance with Sec.  85.42(a) would result in such 

alteration or burdens. The decision that compliance would result in such 

alteration or burdens must be made by the agency head or his or her 

designee after considering all agency resources available for use in the 

funding and operation of the conducted program or activity in question, 

and must be accompanied by a written statement of reasons for reaching 

that conclusion. If an action would result in such an alteration or such 

burdens, the agency shall take any other action that would not result in 

such an alteration or such burdens but would nevertheless ensure that 

individuals with handicaps receive the benefits and services of the 

program or activity.

    (b) Methods. (1) The agency may comply with the requirements of this 

section through such means as redesign of equipment, reassignment of 

services to accessible buildings, assignment of aides to beneficiaries, 

home visits, delivery of services at alternate accessible sites, 

alteration of existing facilities and construction of new facilities, 

use of accessible rolling stock, or any other methods that result in 

making its programs or activities readily accessible to and usable by 

individuals with handicaps. The agency is not required to make 

structural changes in existing facilities where other methods are 

effective in achieving compliance with this section. The agency, in 

making alterations to existing buildings, shall meet accessibility 

requirements to the extent compelled by the Architectural Barriers Act 

of 1968, as amended (42 U.S.C. 4151-4157), and any regulations 

implementing it.

    (2) In choosing among available methods for meeting the requirements 

of this section, the agency shall give priority to those methods that 

offer programs and activities to qualified individuals with handicaps in 

the most integrated setting appropriate.

    (c) Time period for compliance. The agency shall comply with the 

obligations established under this section within 60 days of the 

effective date of this part except where structural changes in 

facilities are undertaken; such changes shall be made within three years 

of the effective date of this part, but, in any event, as expeditiously 

as possible.

    (d) Transition plan. In the event that structural changes to 

facilities must be undertaken to achieve program accessibility, and it 

is not expected that such changes can be completed within six months, 

the agency shall develop, within six months of the effective date of 

this part, a transition plan setting forth the steps necessary to 

complete such changes. The agency shall provide an opportunity to 

interested persons, including individuals with handicaps or 

organizations representing individuals with handicaps, to participate in 

the development of the transition plan by submitting comments (both oral 

and written). A copy of the transition plan shall be made available for 

public inspection. The plan shall, at a minimum--

    (1) Identify physical obstacles in the agency's facilities that 

limit the accessibility of its programs or activities to individuals 

with handicaps;

    (2) Describe in detail the methods that will be used to make the 

facilities accessible;

    (3) Specify the schedule for taking the steps necessary to achieve 

compliance with this section and, if the time period of the transition 

plan is longer than one year, identify steps that will be taken during 

each year of the transition period; and

    (4) Indicate the official responsible for the implementation of the 

plan.