45 CFR Parts 160 & 164 (CFR Annual Edition) oblems identified, and (iii) a description of any modifications made and of any remedial steps taken. [42 FR 22677, May 4, 1977, as amended at 70 FR 24319, May 9, 2005; 89 FR 40182, May 9, 2024] § 84.7 Designation of responsible em- ployee and adoption of grievance procedures. (a) Designation of responsible employee. A recipient that employs fifteen or more persons shall designate at least one person to coordinate its efforts to comply with this part. (b) Adoption of grievance procedures. A recipient that employs fifteen or more persons shall adopt grievance proce- dures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohib- ited by this part. Such procedures need not be established with respect to com- plaints from applicants for employ- ment or from applicants for admission to postsecondary educational institu- tions. 470 Dept. of Health and Human Services § 84.10 § 84.8 Notice. A recipient shall make available to employees, applicants, participants, beneficiaries, and other interested per- sons information regarding the provi- sions of this part and its applicability to the programs or shall make available to employees, applicants, participants, beneficiaries, and other interested per- sons information regarding the provi- sions of this part and its applicability to the programs or activities of the re- cipient, and make such information available to them in such manner as the head of the recipient or their des- ignee finds necessary to apprise such persons of the protections against dis- crimination assured them by section 504 and this part. [89 FR 40182, May 9, 2024] § 84.9 Administrative requirements for small recipients. The Director may require any recipi- ent with fewer than fifteen employees, or any class of such recipients, to com- ply with §§ 84.7 and 84.8, in whole or in part, when the Director finds a viola- tion of this part or finds that such compliance will not significantly im- pair the ability of the recipient or class of recipients to provide benefits or services. § 84.10 Definitions. As used in this part, the term: 2004 ADA Accessibility Guidelines (ADAAG) means the requirements set forth in appendices B and D to 36 CFR part 1191 (2009). 2010 Standards means the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG and the r (ADAAG) means the requirements set forth in appendices B and D to 36 CFR part 1191 (2009). 2010 Standards means the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG and the re- quirements contained in 28 CFR 35.151. ADA means the Americans with Dis- abilities Act (Pub. L. 101–336, 104 Stat. 327, 42 U.S.C. 12101–12213 and 47 U.S.C. 225 and 611), including changes made by the ADA Amendments Act of 2008 (Pub. L. 110–325), which became effective on January 1, 2009. Applicant means one who submits an application, request, or plan required to be approved by the designated De- partment official or by a primary re- cipient, as a condition of eligibility for Federal financial assistance. Architectural Barriers Act means the Architectural Barriers Act (42 U.S.C. 4151–4157), including the Architectural Barriers Act Accessibility Standards at 41 CFR 102–76.60 through 102–76.95. Archived web content means web con- tent that— (1) Was created before the date the recipient is required to comply with § 84.84, reproduces paper documents cre- ated before the date the recipient is re- quired to comply with § 84.84, or repro- duces the contents of other physical media created required to comply with § 84.84, reproduces paper documents cre- ated before the date the recipient is re- quired to comply with § 84.84, or repro- duces the contents of other physical media created before the date the re- cipient is required to comply with § 84.84; (2) Is retained exclusively for ref- erence, research, or recordkeeping; (3) Is not altered or updated after the date of archiving; and (4) Is organized and stored in a dedi- cated area or areas clearly identified as being archived. Auxiliary aids and services include: (1) Qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; as- sistive listening devices; assistive lis- tening systems; telephones compatible with hearing aids; closed caption de- coders; open and closed captioning, in- cluding real-time captioning; voice, text, and video-based telecommuni- cations products and systems, includ- ing (TTYs), videophones, and captioned telephones, telecommuni- or equally effective cations devices; videotext displays; ac- cessible electronic and information tec ions products and systems, includ- ing (TTYs), videophones, and captioned telephones, telecommuni- or equally effective cations devices; videotext displays; ac- cessible electronic and information technology; or other effective methods of making aurally delivered informa- tion available to individuals who are deaf or hard of hearing; telephones text (2) Qualified readers; taped texts; audio recordings; Braille materials and displays; screen reader software; mag- nification software; optical readers; secondary auditory programs (SAP); large print materials; accessible elec- tronic and information technology; or other effective methods of making vis- ually delivered materials available to individuals who are blind or have low vision; (3) Acquisition or modification of equipment or devices; and (4) Other similar services and ac- tions. Companion means a family member, friend, or associate of an individual seeking access to a program or activity 471 § 84.10 45 CFR Subtitle A (10–1–24 Edition) of a recipient, who, along with such in- dividual, is an appropriate person with whom the recipient should commu- nicate. electronic Conventional documents means web content or content in mo- bile on) of a recipient, who, along with such in- dividual, is an appropriate person with whom the recipient should commu- nicate. electronic Conventional documents means web content or content in mo- bile apps that is in the following elec- tronic file formats: portable document formats (PDF), word processor file for- mats, presentation file formats, and spreadsheet file formats. Current illegal use of drugs means ille- gal use of drugs that occurred recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongo- ing problem. Department means the Department of Health and Human Services. Direct threat means: (1) Except as provided in paragraph (2) of this definition, a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services as provided in § 84.75. (2) With respect to employment as provided in § 84.12, the term as defined by the Equal Employment Opportunity Commission’s regulation implementing title I of the Americans with Disabil- ities Act of 1990, at 29 CFR 1630.2(r). Director means the Director of e term as defined by the Equal Employment Opportunity Commission’s regulation implementing title I of the Americans with Disabil- ities Act of 1990, at 29 CFR 1630.2(r). Director means the Director of the Of- fice for Civil Rights. Disability means: (1) Except as provided in paragraph (2) of this definition, the definition of disability found at § 84.4. (2) With respect to employment, the definition of disability found at 29 CFR 1630.2. Drug means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Sub- stances Act (21 U.S.C. 812). Existing facility means a facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or al- tered under this part. Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other con- veyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equip- ment is located. Federal financial assistance means any grant, cooperative agreement, loan, contract (other than a direct Federal procurement contract or a contract of in roperty, structure, or equip- ment is located. Federal financial assistance means any grant, cooperative agreement, loan, contract (other than a direct Federal procurement contract or a contract of insurance or guaranty), subgrant, con- tract under a grant or any other ar- rangement by which the Department provides or otherwise makes available assistance in the form of: (1) Funds; (2) Services of Federal personnel; (3) Real and personal property or any interest in or use of such property, in- cluding: (i) Transfers or leases of such prop- erty for less than fair market value or for reduced consideration; and (ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Govern- ment; and (4) Any other thing of value by way of grant, loan, contract, or cooperative agreement. Foster care means 24-hour substitute care for children placed away from their parents or guardians and for whom the State agency has placement and care responsibility. This includes, but is not limited to, placements in foster family homes, foster homes of relatives, group homes, emergency facilities, residential shelters, childcare lacement and care responsibility. This includes, but is not limited to, placements in foster family homes, foster homes of relatives, group homes, emergency facilities, residential shelters, childcare institutions, and pre-adop- tive homes. A child is in foster care in accordance with this definition regard- less of whether the foster care facility is licensed and payments are made by the State or local agency for the care of the child, whether adoption subsidy payments are being made prior to the finalization of an adoption, or whether there is Federal matching of any pay- ments that are made. Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 812). The term illegal use of drugs does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Sub- stances Act or other provisions of Fed- eral law. Individual with a disability means a person who has a disability. The term 472 Dept. of Health and Human Services § 84.10 individual with a disability does not in- clude an individual who is currently engaging l with a disability means a person who has a disability. The term 472 Dept. of Health and Human Services § 84.10 individual with a disability does not in- clude an individual who is currently engaging in illegal use of drugs when a recipient acts on the basis of such use. Kiosks means self-service transaction machines made available by recipients at set physical locations for the inde- pendent use of patients or program par- ticipants in health and human service programs or activities. They often con- sist of a screen and an input device—ei- ther a keyboard, touch screen, or simi- lar device—onto which the program participant independently types in or otherwise enters information. In health and human service programs, recipi- ents often make kiosks available so that patients or program participants can check in, provide information for the receipt of services, procure serv- ices, have their vital signs taken, or perform other similar actions. Medical diagnostic equipment (MDE) means equipment used in, or in con- junction with, medical settings by health care providers for diagnostic purposes. MDE includes, for example, examination examination tables, chairs (including chairs used f uipment used in, or in con- junction with, medical settings by health care providers for diagnostic purposes. MDE includes, for example, examination examination tables, chairs (including chairs used for eye examinations or procedures, and dental examinations or procedures), weight scales, mammography equipment, x- ray machines, and other radiological equipment commonly used for diag- nostic purposes by health profes- sionals. Mobile applications (apps) means soft- ware applications that are downloaded and designed to run on mobile devices, such as smartphones and tablets. Most integrated setting means a set- ting that provides individuals with dis- abilities the opportunity to interact with nondisabled persons to the fullest extent possible. These settings provide opportunities to live, work, and receive services in the greater community, like individuals without disabilities; are located in mainstream society; offer access to community activities and opportunities at times, frequencies and with persons of an individual’s choosing; and afford individuals choice in their daily life activities. Other power-driven mobility device means any mobility device powered by fuel, or other eng s and with persons of an individual’s choosing; and afford individuals choice in their daily life activities. Other power-driven mobility device means any mobility device powered by fuel, or other engines— batteries, whether or not designed primarily for use by individuals with mobility dis- such as (EPAMDs), abilities—that is used by individuals with mobility disabilities for the pur- pose of locomotion, including golf cars, electronic personal assistance mobility devices the Segway PT, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair within the meaning of this section. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2). Parents means biological or adoptive parents or legal guardians, as deter- mined by applicable State law. Program or activity means all of the operations of any entity described in paragraphs (1) through (4) of this defi- nition, any part of which is extended Federal financial assistance: (1)(i) A department, agency, special purpose district, or other instrumen- tality of a State or of a local gov ugh (4) of this defi- nition, any part of which is extended Federal financial assistance: (1)(i) A department, agency, special purpose district, or other instrumen- tality of a State or of a local govern- ment; or (ii) The entity of such State or local government that distributes such as- sistance and each such department or agency (and each other State or local government entity) to which the as- sistance is extended, in the case of as- sistance to a State or local govern- ment; (2)(i) A college, university, or other postsecondary institution, a public sys- tem of higher education; or (ii) A local educational agency (as de- fined in 20 U.S.C. 7801), system of ca- reer and technical education, or other school system; (3)(i) An entire corporation, partner- ship, or other private organization, or an entire sole proprietorship— (A) If assistance is extended to such corporation, partnership, private orga- nization, or sole proprietorship as a whole; or (B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (ii) The entire plant or other com- parable, geographically separate facil- ity to which Federal he business of providing education, health care, housing, social services, or parks and recreation; or (ii) The entire plant or other com- parable, geographically separate facil- ity to which Federal financial assist- ance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or 473 § 84.10 45 CFR Subtitle A (10–1–24 Edition) (4) Any other entity which is estab- lished by two or more of the entities described in paragraph (1), (2), or (3) of this definition. Prospective parents means individuals who are seeking to become foster or adoptive parents. Qualified individual with a disability means: (1) Except as provided in paragraphs (2) through (4) of this definition, an in- dividual with a disability who, with or without reasonable modifications to rules, policies, or practices, the re- moval of architectural, communica- tion, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility require- ments for the receipt of services or the participation in programs or activities provided by a recipient; and (2) With respect to employment, an individual with a disability who meets the d y require- ments for the receipt of services or the participation in programs or activities provided by a recipient; and (2) With respect to employment, an individual with a disability who meets the definition of ‘‘qualified’’ in the Equal Employment Opportunity Com- mission’s implementing title I of the Americans with Disabil- ities Act of 1990, 29 CFR 1630.2(m). regulation (3) With respect to childcare, pre- school, elementary, secondary, or adult educational services, a person with a disability— (i) Of an age during which non- disabled persons are provided such services; (ii) Of any age during which it is mandatory under State law to provide such services to persons with a dis- ability; or (iii) To whom a State is required to provide a free appropriate public edu- cation under the Individuals with Dis- abilities Education Act; and (4) With respect to postsecondary and career and technical education serv- ices, an individual with a disability who, with or without reasonable modi- fications to rules, policies, or prac- tices, the removal of architectural, communication, or transportation bar- riers, or the provision of auxiliary aids and services, meets the essential eligi- bility ations to rules, policies, or prac- tices, the removal of architectural, communication, or transportation bar- riers, or the provision of auxiliary aids and services, meets the essential eligi- bility requirements for the receipt of services or the participation in the re- cipient’s program or activity. Qualified interpreter means an inter- preter who, via an on-site appearance or through a video remote interpreting (VRI) service, is able to interpret effec- tively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocab- ulary. Qualified interpreters include, for example, sign inter- preters, oral transliterators, and cued- language transliterators. language Qualified reader means a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary. Recipient means any State or its po- litical subdivision, any instrumen- tality of a State or its political sub- division, any public or private agency, institution, organization, or other enti- ty, or any person to which Federal fi- nancial assistance is extended directly or through another recipient, including any successor, assignee, or transfe cy, institution, organization, or other enti- ty, or any person to which Federal fi- nancial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ulti- mate beneficiary of the assistance. Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93– 112, 87 Stat. 394 (29 U.S.C. 794)), as amended. Section 508 Standards means the standards for Information and Commu- nications Technologies (ICT) promul- gated at 36 CFR part 1194 by the U.S. Access Board per section 508 of the Re- habilitation Act (29 U.S.C. 794d as amended). Service animal means any dog that is individually trained to do work or per- form tasks for the benefit of an indi- vidual with a disability, including a physical, sensory, psychiatric, intellec- tual, or other mental disability. Other species of animals, whether wild or do- mestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks per- formed by a service animal must be di- rectly related to the individual’s dis- ability. Examples of work or tasks in- clude, but are not limited to, assisting individuals who . The work or tasks per- formed by a service animal must be di- rectly related to the individual’s dis- ability. Examples of work or tasks in- clude, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of peo- ple or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual dur- ing a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the tele- phone, providing physical support and assistance with balance and stability 474 Dept. of Health and Human Services § 84.21 to individuals with mobility disabil- ities, and helping persons with mental and neurological disabilities by pre- venting or interrupting impulsive or harmful behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well- being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. Standards for Accessible Medical Diag- nostic Equipment (‘‘Standards for Acces- sible MDE’’) means the standards pro- mulgated by the Archi onstitute work or tasks for the purposes of this definition. Standards for Accessible Medical Diag- nostic Equipment (‘‘Standards for Acces- sible MDE’’) means the standards pro- mulgated by the Architectural and Transportation Barriers Compliance Board (Access Board) under section 510 of the Rehabilitation Act of 1973, as amended, found at 36 CFR part 1195 (as of Jan. 9, 2017), with the exception of M301.2.2 and M302.2.2. State includes, in addition to each of the several States of the United States, the District of Columbia, the Common- wealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. Ultimate beneficiary means one among a class of persons who are entitled to benefit from, or otherwise participate in, a program or activity receiving Federal financial assistance and to whom the protections of this part ex- tend. The ultimate beneficiary class may be the general public or some nar- rower group of persons. User agent means any software that retrieves and presents web content for users. Video remote interpreting (VRI) service means an interpreting service that uses video conference technology over ded s. User agent means any software that retrieves and presents web content for users. Video remote interpreting (VRI) service means an interpreting service that uses video conference technology over dedi- cated lines or wireless technology of- fering high-speed, wide-bandwidth video connection that delivers high- quality video images as provided in § 84.77(d). WCAG 2.1 means the Web Content Ac- cessibility Guidelines (WCAG) 2.1, W3C Recommendation 05 June 2018, https:// www.w3.org/TR/2018/REC-WCAG21- 20180605/ https://perma.cc/UB8A- GG2F. WCAG 2.1 is incorporated by ref- erence elsewhere in this part (see §§ 84.84 and 84.86). and Web content means the information and sensory experience to be commu- nicated to the user by means of a user agent, including code or markup that defines the content’s structure, presen- tation, and interactions. Examples of web content images, sounds, videos, controls, animations, and conventional electronic docu- ments. include text, Wheelchair means a manually-oper- ated or power-driven device designed primarily for use by an individual with a mobility disability for the main pur- pose of indoor, or of both indoor and outdoor locomotion. This definition d y-oper- ated or power-driven device designed primarily for use by an individual with a mobility disability for the main pur- pose of indoor, or of both indoor and outdoor locomotion. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are de- fined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2). [42 FR 22677, May 4, 1977, as amended at 70 FR 24319, May 9, 2005. Redesignated and re- vised and republished at 89 FR 40180, 40182, May 9, 2024] Subpart B—Employment Practices SOURCE: 89 FR 40185, May 9, 2024, unless otherwise noted. § 84.16 Discrimination prohibited. (a) No qualified individual with a dis- ability shall, on the basis of disability, be subjected to discrimination in em- ployment under any program or activ- ity receiving Federal financial assist- ance from the Department. (b) The standards used to determine whether paragraph (a) of this section has been violated shall be the stand- ards applied under title I of the Ameri- cans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12111 et seq., and, as such sections relate to employment, the provisions of sections 501 through 504 and 511 of the ADA of 1990, as amended (codified at 42 U.S.C bilities Act of 1990 (ADA), 42 U.S.C. 12111 et seq., and, as such sections relate to employment, the provisions of sections 501 through 504 and 511 of the ADA of 1990, as amended (codified at 42 U.S.C. 12201– 12204, 12210), as implemented in the Equal Employment Opportunity Com- mission’s regulation at 29 CFR part 1630. §§ 84.17–84.20 [Reserved] Subpart C—Accessibility § 84.21 Discrimination prohibited. Except as otherwise provided in § 84.22, no qualified individual with a disability shall, because a recipient’s facilities are inaccessible to or unus- able by individuals with disabilities, be excluded from participation in, or be 475 § 84.22 45 CFR Subtitle A (10–1–24 Edition) denied the benefits of the programs or activities of a recipient, or be sub- jected to discrimination by any recipi- ent. [89 FR 40185, May 9, 2024] § 84.22 Existing facilities. (a) General. A recipient 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 disabilities. This paragraph (a) does not— (1) Necessarily require a recipient to make each of its existing facilities ac- cessible to and usable by indi y accessible to and usable by individuals with disabilities. This paragraph (a) does not— (1) Necessarily require a recipient to make each of its existing facilities ac- cessible to and usable by individuals with disabilities; or (2) Require a recipient 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 a recipient’s personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and adminis- trative burdens, the recipient has the burden of proving that compliance with this paragraph (a) would result in such an alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of the recipient or their des- ignee after considering all the recipi- ent’s resources available for use in the funding and operation of the program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an ac- tion would result in such an alteration or such burdens, the recipient shall take an or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an ac- tion would result in such an alteration or such burdens, the recipient shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities re- ceive the benefits or services provided by the recipient. (b) Methods. A recipient may comply with the requirements of this section through such means as redesign or ac- quisition of equipment, reassignment of services to accessible buildings, as- signment of aides to beneficiaries, home visits, delivery of services at al- ternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its programs or activities readily ac- cessible to and usable by individuals with disabilities. A recipient is not re- quired to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. A recipient, in mak- ing alterations to existing buildings, shall meet the accessibil ctural changes in existing facilities where other methods are effective in achieving compliance with this section. A recipient, in mak- ing alterations to existing buildings, shall meet the accessibility require- ments of § 84.23. In choosing among available methods for meeting the re- quirements of this section, a recipient shall give priority to those methods that offer programs and activities to qualified individuals with disabilities in the most integrated setting appro- priate. (c) Small health, welfare, or other social service providers. If a recipient with fewer than fifteen employees that pro- vides health, welfare, or other social services finds, after consultation with a person with a disability seeking its services, that there is no method of complying with paragraph (a) of this section other than making a signifi- cant alteration in its existing facili- ties, the recipient may, as an alter- native, refer the person with a dis- ability to other providers of those serv- ices that are accessible. (d) Time period. A recipient shall com- ply with the requirement of paragraph (a) of this section within sixty days of the effective date of this part except that where structural that are accessible. (d) Time period. A recipient shall com- ply with the requirement of paragraph (a) of this section within sixty days of the effective date of this part except that where structural changes in facili- ties are necessary, such changes shall be made within three years of the ef- fective date of this part, but in any event as expeditiously as possible. (e) Transition plan. In the event that structural changes to facilities are nec- essary to meet the requirement of paragraph (a) of this section, a recipi- ent shall develop, within six months of the effective date of this part, a transi- tion plan setting forth the steps nec- essary to complete such changes. The plan shall be developed with the assist- ance of interested persons, including persons with disabilities or organiza- tions representing persons with disabil- ities. A copy of the transition plan shall be made available for public in- spection. The plan shall, at a min- imum: 476 Dept. of Health and Human Services § 84.23 (1) Identify physical obstacles in the recipient’s facilities that limit the ac- cessibility of its program or activity to persons with disabilities; (2) Describe in detail the methods that s § 84.23 (1) Identify physical obstacles in the recipient’s facilities that limit the ac- cessibility of its program or activity to persons with disabilities; (2) Describe in detail the methods that will be used to make the facilities accessible; (3) Specify the schedule for taking the steps necessary to achieve full ac- cessibility under paragraph (a) and, if the time period of the transition plan is longer than one year, identify the steps that will be taken during each year of the transition period; and (4) Indicate the person responsible for implementation of the plan. (f) Notice. The recipient shall adopt and implement procedures to ensure that interested persons, including per- sons with impaired vision or hearing, can obtain information as to the exist- ence and location of services, activi- ties, and facilities that are accessible to and usable by persons with disabil- ities. (g) Safe harbor. Elements that have not been altered in existing facilities on or after July 8, 2024, and that com- ply with the corresponding technical and scoping specifications for those elements in the American National Standard Specification (ANSI) (ANSI A117.1–1961(R1971)) for facilities con- st and that com- ply with the corresponding technical and scoping specifications for those elements in the American National Standard Specification (ANSI) (ANSI A117.1–1961(R1971)) for facilities con- structed between June 3, 1977, and Jan- uary 18, 1991) or for those elements in the Uniform Federal Accessibility Standards (UFAS), appendix A to 41 CFR part 101–19, subpart 101–19.6 (re- vised as of July 1, 2002), for those facili- ties constructed between January 18, 1991, and July 8, 2024, are not required to be modified to comply with the re- quirements set forth in the 2010 Stand- ards. [42 FR 22677, May 4, 1977, as amended at 70 FR 24319, May 9, 2005; 89 FR 40185, May 9, 2024] § 84.23 New construction and alter- ations. (a) Design and construction. Each fa- cility or part of a facility constructed by, on behalf of, or for the use of a re- cipient shall be designed and con- structed in such manner that the facil- ity or part of the facility is readily ac- cessible to and usable by individuals with disabilities, if the construction was commenced after June 3, 1977. (b) Alterations. Each facility or part of a facility altered by, on behalf of, or for the use of a recipient in a manner iduals with disabilities, if the construction was commenced after June 3, 1977. (b) Alterations. Each facility or part of a facility altered by, on behalf of, or for the use of a recipient in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the al- teration was commenced after June 3, 1977. (c) Accessibility standards and compli- ance dates for recipients that are public entities. (1) The accessibility standards and compliance dates in this paragraph (c) apply to recipients that are public entities. Public entities are any State or local government; any department, agency, special purpose district, or other instrumentality of a State or States or local government; and the National Railroad Passenger Corpora- tion, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act). (45 U.S.C. 541) (2) If physical construction or alter- ations commenced after June 3, 1977, but before January 18, 1991, then con- struction and alterations subj 8) of the Rail Passenger Service Act). (45 U.S.C. 541) (2) If physical construction or alter- ations commenced after June 3, 1977, but before January 18, 1991, then con- struction and alterations subject to this section shall be deemed in compli- ance with this section if they meet the requirements of the ANSI Standards (ANSI A117.1–1961(R1971)) (ANSI). De- partures from particular requirements of ANSI by the use of other methods are permitted when it is clearly evi- dent that equivalent access to the fa- cility or part of the facility is provided. (3) If physical construction or alter- ations commence on or after January 18, 1991, but before July 8, 2024, then new construction and alterations sub- ject to this section shall be deemed in compliance with this section if they meet the requirements of the Uniform Federal Standards (UFAS), appendix A to 41 CFR part 101– 19, subpart 101–19.6 (revised as of July 1, 2002). Departures from particular re- quirements of UFAS by the use of other methods shall be permitted when it is clearly evident that equivalent ac- cess to the facility or part of the facil- ity is thereby provided. Accessibility (4) For physical construction or al- teratio methods shall be permitted when it is clearly evident that equivalent ac- cess to the facility or part of the facil- ity is thereby provided. Accessibility (4) For physical construction or al- terations that commence on or after July 8, 2024, but before May 9, 2025, then new construction and alterations 477 § 84.23 45 CFR Subtitle A (10–1–24 Edition) subject to this section may comply with either UFAS or the 2010 Stand- ards. Departures from particular re- quirements of either standard by the use of other methods shall be per- mitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided. (5) If physical construction or alter- ations commence on or after May 9, 2025, then new construction and alter- ations subject to this section shall comply with the 2010 Standards. (6) For the purposes of this section, ceremonial groundbreaking or razing of structures prior to site preparation do not commence physical construc- tion or alterations. (d) Accessibility standards and compli- ance dates for recipients that are private entities. (1) The accessibility standards and compliance dates in this paragraph (d) apply to recipients that are s. (d) Accessibility standards and compli- ance dates for recipients that are private entities. (1) The accessibility standards and compliance dates in this paragraph (d) apply to recipients that are private entities. Private entities are any per- son or entity other than a public enti- ty. (2) New construction and alterations subject to this section where the date when the last application for a building permit or permit extension is certified to be complete by a State, county, or local government or, in those jurisdic- tions where the government does not certify completion of applications, if the date when the last application for a building permit or permit extension is received by the State, county, or local government between June 3, 1977, and January 18, 1991, or if no permit is re- quired, if the start of physical con- struction or alterations occurs between June 3, 1977, and January 18, 1991, shall be deemed in compliance with this sec- tion if they meet the requirements of ANSI. Departures from particular re- quirements of ANSI by the use of other methods are permitted when it is clear- ly evident that equivalent access to the facility or part of the facility is pro- vided I. Departures from particular re- quirements of ANSI by the use of other methods are permitted when it is clear- ly evident that equivalent access to the facility or part of the facility is pro- vided. (3) New construction and alterations subject to this section shall comply with UFAS if the date when the last application for a building permit or permit extension is certified to be com- plete by a State, county, or local gov- ernment (or, in those jurisdictions where the government does not certify completion of applications, if the date when the last application for a building permit or permit extension is received by the State, county, or local govern- ment) is on or after January 18, 1991, and before July 8, 2024, or if no permit is required, if the start of physical con- struction or alterations occurs on or after January 18, 1991, and before July 8, 2024. Departures from particular re- quirements of UFAS by the use of other methods are permitted when it is clearly evident that equivalent access to the facility or part of the facility is provided. (4) New construction and alterations subject to this section shall comply ei- ther with UFAS or the 2010 Standards if the date when ivalent access to the facility or part of the facility is provided. (4) New construction and alterations subject to this section shall comply ei- ther with UFAS or the 2010 Standards if the date when the last application for a building permit or permit exten- sion is certified to be complete by a State, county, or local government (or, in those jurisdictions where the gov- ernment does not certify completion of applications, if the date when the last application for a building permit or permit extension is received by the State, county, or local government) is on or after July 8, 2024, and before May 9, 2025, or if no permit is required, if the start of physical construction or alterations occurs on or after July 8, 2024, and before May 9, 2025. Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is there- by provided. (5) New construction and alterations subject to this section shall comply with the 2010 Standards if the date when the last application for a building permit or permit extension is certified to be complete by a State, county, alterations subject to this section shall comply with the 2010 Standards if the date when the last application for a building permit or permit extension is certified to be complete by a State, county, or local government (or, in those jurisdic- tions where the government does not certify completion of applications, if the date when the last application for a building permit or permit extension is received by the State, county, or local government) is on or after May 9, 2025, or if no permit is required, if the start of physical construction or alterations occurs on or after May 9, 2025. (6) For the purposes of this section, ceremonial groundbreaking or razing of structures prior to site preparation do not commence physical construc- tion or alterations. 478 Dept. of Health and Human Services § 84.41 (e) Noncomplying new construction and alterations. (1) Newly constructed or al- tered facilities or elements covered by paragraph (a) or (b) of this section that were constructed or altered between June 3, 1977, and January 18, 1991, and that do not comply with ANSI shall be made accessible in accordance with the 2010 Standards. (2) Newly constructed or altered fa- cilities or elements between June 3, 1977, and January 18, 1991, and that do not comply with ANSI shall be made accessible in accordance with the 2010 Standards. (2) Newly constructed or altered fa- cilities or elements covered by para- graph (a) or (b) of this section that were constructed or altered on or after January 18, 1991, and before May 9, 2025, and that do not comply with UFAS shall before May 9, 2025, be made acces- sible in accordance with either UFAS or the 2010 Standards. (3) Newly constructed or altered fa- cilities or elements covered by para- graph (a) or (b) of this section that were constructed or altered before May 9, 2025, and that do not comply with ANSI (for facilities constructed or al- tered between June 3, 1977, and Janu- ary 18, 1991) or UFAS (for facilities con- structed or altered on or after January 18, 1991) shall, on or after May 9, 2025, be made accessible in accordance with the 2010 Standards. (f) Public buildings or facilities require- ments. New construction and alter- ations of buildings or facilities under- taken in compliance with the 2010 Standards will comply with the scoping and technical requirements for a ‘‘pub- lic building or facility’’ regardless of wheth ations of buildings or facilities under- taken in compliance with the 2010 Standards will comply with the scoping and technical requirements for a ‘‘pub- lic building or facility’’ regardless of whether the recipient is a public entity as defined in 28 CFR 35.104 or a private entity. (g) Compliance with the Architectural Barriers Act of 1968. Nothing in this sec- tion relieves recipients whose facilities are covered by the Architectural Bar- riers Act, from their responsibility of complying with the requirements of the Architectural Barriers Act and its implementing regulations, 41 CFR 102– 76.60 through 102–76.95 (General Serv- ices Administration); 39 CFR part 255 (U.S. Postal Service); 24 CFR part 40 (U.S. Department of Housing and Urban Development); and the U.S. De- partment of Defense ‘‘Policy Memo- randum for Secretaries of the Military Departments: Access for People with Disabilities’’ (October 31, 2008). (h) Mechanical rooms. For purposes of this section, section 4.1.6(1)(g) of UFAS will be interpreted to exempt from the requirements of UFAS only mechanical rooms and other spaces that, because of their intended use, will not require accessibility to the public or bene- fic f UFAS will be interpreted to exempt from the requirements of UFAS only mechanical rooms and other spaces that, because of their intended use, will not require accessibility to the public or bene- ficiaries or result in the employment or residence therein of individuals with physical disabilities. [89 FR 40185, May 9, 2024] §§ 84.24–84.30 [Reserved] Subpart D—Childcare, Preschool, Elementary and Secondary, and Adult Education § 84.31 Application of this subpart. This subpart applies to childcare, preschool, elementary and secondary, and adult education programs or ac- tivities that receive Federal financial assistance and to recipients that oper- ate, or that receive Federal financial assistance for the operation of, such programs or activities. [89 FR 40187, May 9, 2024] §§ 84.32–84.37 [Reserved] § 84.38 Childcare, preschool, elemen- tary and secondary, and adult edu- cation. A recipient to which this subpart ap- plies that provides childcare, pre- school, elementary and secondary, or adult education may not, on the basis of disability, exclude qualified individ- uals with disabilities and shall take into account the needs of such persons in determining the aids, benefits, or serv adult education may not, on the basis of disability, exclude qualified individ- uals with disabilities and shall take into account the needs of such persons in determining the aids, benefits, or services to be provided. [89 FR 40187, May 9, 2024] §§ 84.39–84.40 [Reserved] Subpart E—Postsecondary Education § 84.41 Application of this subpart. Subpart E applies to postsecondary education programs or activities, in- cluding postsecondary vocational edu- cation programs or activities, that re- ceive Federal financial assistance and to recipients that operate, or that re- ceive Federal financial assistance for 479 § 84.42 45 CFR Subtitle A (10–1–24 Edition) the operation of, such programs or ac- tivities. [42 FR 22677, May 4, 1977, as amended at 70 FR 24320, May 9, 2005] § 84.42 Admissions and recruitment. (a) General. Qualified persons with disabilities may not, on the basis of disability, be denied admission or be subjected to discrimination in admis- sion or recruitment by a recipient to which this subpart applies. (b) Admissions. In administering its admission policies, a recipient to which this subpart applies: (1) May not apply limitations upon the number or proportion of persons o which this subpart applies. (b) Admissions. In administering its admission policies, a recipient to which this subpart applies: (1) May not apply limitations upon the number or proportion of persons with disabilities who may be admitted; (2) May not make use of any test or criterion for admission that has a dis- proportionate, adverse effect on per- sons with disabilities or any class of persons with disabilities unless (i) the test or criterion, as used by the recipi- ent, has been validated as a predictor of success in the education program or activity in question and (ii) alternate tests or criteria that have a less dis- proportionate, adverse effect are not shown by the Director to be available. (3) Shall assure itself that (i) admis- sions tests are selected and adminis- tered so as best to ensure that, when a test is administered to an applicant who has a disability that impairs sen- sory, manual, or speaking skills, the test results accurately reflect the ap- plicant’s aptitude or achievement level or whatever other factor the test pur- ports to measure, rather than reflect- ing the applicant’s impaired sensory, manual, or speaking skills (except where those skills are the e or achievement level or whatever other factor the test pur- ports to measure, rather than reflect- ing the applicant’s impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure); (ii) ad- missions tests that are designed for persons with impaired sensory, man- ual, or speaking skills are offered as often and in as timely a manner as are other admissions tests; and (iii) admis- sions tests are administered in facili- ties that, on the whole, are accessible to persons with disabilities; and (4) Except as provided in paragraph (c) of this section, may not make preadmission inquiry as to whether an applicant for admission is a person with a disability but, after admission, may make inquiries on a confidential basis as to disabilities that may re- quire accommodation. (c) Preadmission inquiry exception. When a recipient is taking remedial ac- tion to correct the effects of past dis- crimination pursuant to § 84.6(a) or when a recipient is taking voluntary action to overcome the effects of condi- tions that resulted in limited partici- pation in its federally assisted program or activity pursuant to § 84.6(b), the re- cipi recipient is taking voluntary action to overcome the effects of condi- tions that resulted in limited partici- pation in its federally assisted program or activity pursuant to § 84.6(b), the re- cipient may invite applicants for ad- mission to indicate whether and to what extent they are disabled, Pro- vided, That: (1) The recipient states clearly on any written questionnaire used for this purpose or makes clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its reme- dial action obligations or its voluntary action efforts; and (2) The recipient states clearly that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with this part. (d) Validity studies. For the purpose of paragraph (b)(2) of this section, a re- cipient may base prediction equations on first year grades, but shall conduct periodic validity studies against the criterion of overall success in the edu- cation program or activity in question in order to monitor the general valid- it on first year grades, but shall conduct periodic validity studies against the criterion of overall success in the edu- cation program or activity in question in order to monitor the general valid- ity of the test scores. [42 FR 22677, May 4, 1977, as amended at 89 FR 40187, May 9, 2024] § 84.43 Treatment of students; general. (a) No qualified student with a dis- ability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any academic, research, occupational train- ing, housing, health insurance, coun- seling, financial aid, physical edu- cation, athletics, recreation, transpor- tation, other extracurricular, or other postsecondary education aids, benefits, or services to which this subpart ap- plies. (b) A recipient to which this subpart applies that considers participation by 480 Dept. of Health and Human Services § 84.45 students in education programs or ac- tivities not operated wholly by the re- cipient as part of, or equivalent to, and education program or activity operated by the recipient shall assure itself that the other education program or activ- ity, as a whole, provides an e the re- cipient as part of, or equivalent to, and education program or activity operated by the recipient shall assure itself that the other education program or activ- ity, as a whole, provides an equal op- portunity for the participation of qualified persons with disabilities. (c) A recipient to which this subpart applies may not, on the basis of dis- ability, exclude any qualified student with a disability from any course, course of study, or other part of its education program or activity. (d) A recipient to which this subpart applies shall operate its program or ac- tivity in the most integrated setting appropriate. [42 FR 22677, May 4, 1977, as amended at 70 FR 24320, May 9, 2005; 89 FR 40187, May 9, 2024] § 84.44 Academic adjustments. (a) Academic requirements. A recipient to which this subpart applies shall make such modifications to its aca- demic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of dis- criminating, on the basis of disability, against a qualified applicant or student with a disability. Academic require- ments that the recipient can dem- onstrate are essential to the instruc- tion being pursued by such s basis of disability, against a qualified applicant or student with a disability. Academic require- ments that the recipient can dem- onstrate are essential to the instruc- tion being pursued by such student or to any directly related licensing re- quirement will not be regarded as dis- criminatory within the meaning of this include section. Modifications may changes in the length of time per- mitted for the completion of degree re- quirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted. (b) Other rules. A recipient to which this subpart applies may not impose upon students with disabilities other rules, such as the prohibition of tape recorders in classrooms or of dog guides in campus buildings, that have the effect of limiting the participation of students with disabilities in the re- cipient’s education program or activ- ity. (c) Course examinations. In its course examinations or other procedures for evaluating students’ academic achieve- ment, a recipient to which this subpart applies shall provide such methods for evaluating the achievement of students who have a disab ns or other procedures for evaluating students’ academic achieve- ment, a recipient to which this subpart applies shall provide such methods for evaluating the achievement of students who have a disability that impairs sen- sory, manual, or speaking skills as will best ensure that the results of the eval- uation student’s achievement in the course, rather than reflecting the student’s impaired sen- sory, manual, or speaking skills (ex- cept where such skills are the factors that the test purports to measure). represents the (d) Auxiliary aids. (1) A recipient to which this subpart applies shall take such steps as are necessary to ensure that no student with a disability is de- nied the benefits of, excluded from par- ticipation in, or otherwise subjected to discrimination because of the absence of educational auxiliary aids for stu- dents with impaired sensory, manual, or speaking skills. (2) Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in librar- ies for students with visual impair- ments, classroom equipment adapted for use by students with manual im- pa ly delivered materials available to students with hearing impairments, readers in librar- ies for students with visual impair- ments, classroom equipment adapted for use by students with manual im- pairments, and other similar services and actions. Recipients need not pro- vide attendants, individually pre- scribed devices, readers for personal use or study, or other devices or serv- ices of a personal nature. [42 FR 22677, May 4, 1977, as amended at 70 FR 24320, May 9, 2005; 89 FR 40187, May 9, 2024] § 84.45 Housing. (a) Housing provided by the recipient. A recipient that provides housing to its students without disabilities shall pro- vide comparable, convenient, and ac- cessible housing to students with dis- abilities at the same cost as to others. At the end of the transition period pro- vided for in subpart C of this part, such housing shall be available in sufficient quantity and variety so that the scope of students with disabilities’ choice of living accommodations is, as a whole, comparable to that of students without disabilities. (b) Other housing. A recipient that as- sists any agency, organization, or per- son in making housing available to any 481 § 84.46 45 CFR Subti le, comparable to that of students without disabilities. (b) Other housing. A recipient that as- sists any agency, organization, or per- son in making housing available to any 481 § 84.46 45 CFR Subtitle A (10–1–24 Edition) of its students shall take such action as may be necessary to assure itself that such housing is, as a whole, made available in a manner that does not re- sult in discrimination on the basis of disability. [42 FR 22677, May 4, 1977, as amended at 89 FR 40187, May 9, 2024] § 84.46 Financial and employment as- sistance to students. (a) Provision of financial assistance. (1) In providing financial assistance to qualified persons with disabilities, a re- cipient to which this subpart applies may not (i), on the basis of disability, provide less assistance than is provided to persons without disabilities, limit eligibility for assistance, or otherwise discriminate or (ii) assist any entity or person that provides assistance to any of the recipient’s students in a manner that discriminates against qualified persons with disabilities on the basis of disability. (2) A recipient may administer or as- sist in the administration of scholar- ships, fellowships, or other for that discriminates against qualified persons with disabilities on the basis of disability. (2) A recipient may administer or as- sist in the administration of scholar- ships, fellowships, or other forms of fi- nancial assistance established under wills, trusts, bequests, or similar legal instruments that require awards to be made on the basis of factors that dis- criminate or have the effect of dis- criminating on the basis of disability only if the overall effect of the award of scholarships, fellowships, and other forms of financial assistance is not dis- criminatory on the basis of disability. (b) Assistance in making available out- side employment. A recipient that as- sists any agency, organization, or per- son in providing employment opportu- nities to any of its students shall as- sure itself that such employment op- portunities, as a whole, are made avail- able in a manner that would not vio- late subpart B if they were provided by the recipient. (c) Employment of students by recipi- ents. A recipient that employs any of its students may not do so in a manner that violates subpart B. [42 FR 22677, May 4, 1977, as amended at 89 FR 40187, May 9, 2024] and athletics and simila ecipi- ents. A recipient that employs any of its students may not do so in a manner that violates subpart B. [42 FR 22677, May 4, 1977, as amended at 89 FR 40187, May 9, 2024] and athletics and similar aids, benefits, or services to any of its students, a re- cipient to which this subpart applies may not discriminate on the basis of disability. A recipient that offers phys- ical education courses or that operates or sponsors intercollegiate, club, or in- tramural athletics shall provide to qualified students with disabilities an equal opportunity for participation in these activities. (2) A recipient may offer to students with disabilities physical education and athletic activities that are sepa- rate or different only if separation or differentiation is consistent with the requirements of § 84.43(d) and only if no qualified student with a disability is denied the opportunity to compete for teams or to participate in courses that are not separate or different. (b) Counseling and placement services. A recipient to which this subpart ap- plies that provides personal, academic, or vocational counseling, guidance, or placement services to its students shall provide these services witho ent services. A recipient to which this subpart ap- plies that provides personal, academic, or vocational counseling, guidance, or placement services to its students shall provide these services without dis- crimination on the basis of disability. The recipient shall ensure that quali- fied students with disabilities are not counseled toward more restrictive ca- reer objectives than are students with- out disabilities with similar interests and abilities. This requirement does not preclude a recipient from providing factual information about licensing and certification requirements that may present obstacles to persons with disabilities in their pursuit of par- ticular careers. (c) Social organizations. A recipient that provides significant assistance to fraternities, sororities, or similar orga- nizations shall assure itself that the membership practices of such organiza- tions do not permit discrimination oth- erwise prohibited by this subpart. [42 FR 22677, May 4, 1977, as amended at 70 FR 24320, May 9, 2005; 89 FR 40187, May 9, 2024] §§ 84.48–84.50 [Reserved] Subpart F—Health, Welfare, and Social Services § 84.47 Nonacademic services. § 84.51 Application of this subpart. (a) Ph t 70 FR 24320, May 9, 2005; 89 FR 40187, May 9, 2024] §§ 84.48–84.50 [Reserved] Subpart F—Health, Welfare, and Social Services § 84.47 Nonacademic services. § 84.51 Application of this subpart. (a) Physical education and athletics. (1) In providing physical education courses Subpart F applies to health, welfare, and other social service programs or 482 Dept. of Health and Human Services § 84.55 activities that receive Federal finan- cial assistance and to recipients that operate, or that receive Federal finan- cial assistance for the operation of, such programs or activities. [42 FR 22677, May 4, 1977, as amended at 70 FR 24320, May 9, 2005] § 84.52 Health, welfare, and other so- cial services. (a) General. In providing health, wel- fare, or other social services or bene- fits, a recipient may not, on the basis of handicap: (1) Deny a qualified person with a dis- ability these benefits or services; (2) Afford a qualified person with a disability an opportunity to receive benefits or services that is not equal to that offered persons without disabil- ities; (3) Provide a qualified person with a disability with benefits or services that are not as effective (as defined in § 84.4(b)) rvices that is not equal to that offered persons without disabil- ities; (3) Provide a qualified person with a disability with benefits or services that are not as effective (as defined in § 84.4(b)) as the benefits or services pro- vided to others; (4) Provide benefits or services in a manner that limits or has the effect of limiting the participation of qualified persons with disabilities; or (5) Provide different or separate ben- efits or services to persons with dis- abilities except where necessary to pro- vide qualified persons with disabilities with benefits and services that are as effective as those provided to others. (b) Notice. A recipient that provides notice concerning benefits or services or written material concerning waivers of rights or consent to treatment shall take such steps as are necessary to en- sure that qualified persons with dis- abilities, including those with impaired sensory or speaking skills, are not de- nied effective notice because of their disability. [42 FR 22677, May 4, 1977, as amended at 89 FR 40187, May 9, 2024] § 84.53 Individuals with substance and alcohol use disorders. A recipient to which this subpart ap- plies that operates a health ca . [42 FR 22677, May 4, 1977, as amended at 89 FR 40187, May 9, 2024] § 84.53 Individuals with substance and alcohol use disorders. A recipient to which this subpart ap- plies that operates a health care facil- ity may not discriminate in admission or treatment against an individual with a substance or alcohol use dis- order who has a medical condition, be- cause of the person’s substance or alco- hol use disorder. [89 FR 40188, May 9, 2024] § 84.54 Education of institutionalized persons. A recipient to which this subpart ap- plies and that provides aids, benefits, or services to persons who are institu- tionalized because of disability shall ensure that each qualified individual with disabilities, as defined in § 84.10, in its program or activity is provided an appropriate education, consistent with the Department of Education section 504 regulations at 34 CFR 104.33(b). Nothing in this section shall be inter- preted as altering in any way the obli- gations of recipients under subpart D of this part. [89 FR 40188, May 9, 2024] § 84.55 Procedures relating to health care for infants with disabilities. (a) Infant Care Review Committees. The Department encourages each recipient health D of this part. [89 FR 40188, May 9, 2024] § 84.55 Procedures relating to health care for infants with disabilities. (a) Infant Care Review Committees. The Department encourages each recipient health care provider that provides health care services to infants in pro- grams or activities receiving Federal financial assistance to establish an In- fant Care Review Committee (ICRC) to assist the provider in delivering health care and related services to infants and in complying with this part. The pur- pose of the committee is to assist the health care provider in the develop- ment of standards, policies and proce- dures for providing treatment to in- fants with disabilities and in making decisions concerning medically bene- ficial treatment in specific cases. While the Department recognizes the value of ICRC’s in assuring appropriate medical care to infants, such committees are not required by this section. An ICRC should be composed of individuals rep- resenting a broad range of perspectives, and should include a practicing physi- cian, a representative of a disability organization, a practicing nurse, and other individuals. A suggested model ICRC is set forth in paragraph (f) of thi ives, and should include a practicing physi- cian, a representative of a disability organization, a practicing nurse, and other individuals. A suggested model ICRC is set forth in paragraph (f) of this section. (b)–(e) [Reserved] (f) Model Infant Care Review Com- mittee. Recipient health care providers 483 § 84.55 45 CFR Subtitle A (10–1–24 Edition) wishing to establish Infant Care Re- view Committees should consider adop- tion of the following model. This model is advisory. Recipient health care pro- viders are not required to establish a review committee or, if one is estab- lished, to adhere to this model. In seek- ing to determine compliance with this part, as it relates to health care for in- fants with disabilities, by health care providers that have an ICRC estab- lished and operated substantially in ac- cordance with this model, the Depart- ment will, to the extent possible, con- sult with the ICRC. (1) Establishment and purpose. (i) The hospital establishes an Infant Care Re- view Committee (ICRC) or joins with one or more other hospitals to create a joint ICRC. The establishing document will state that the ICRC is for the pur- pose of facilitating the development and impl view Committee (ICRC) or joins with one or more other hospitals to create a joint ICRC. The establishing document will state that the ICRC is for the pur- pose of facilitating the development and implementation of standards, poli- cies and procedures designed to assure that, while respecting reasonable med- ical judgments, treatment and nourish- ment not be withheld, solely on the basis of present or anticipated physical or mental impairments, from infants with disabilities who, in spite of such impairments, will benefit medically from the treatment or nourishment. (ii) The activities of the ICRC will be guided by the following principles: (A) The interpretative guidelines of the Department relating to the appli- cability of this part to health care for infants with disabilities. (B) As stated in the ‘‘Principles of Treatment of Disabled Infants’’ of the coalition of major medical and dis- ability organizations, including the American Academy of Pediatrics, Na- tional Association of Children’s Hos- pitals and Related Institutions, Asso- ciation for Retarded Citizens, Down’s Syndrome Congress, Spina Bifida Asso- ciation, and others: When medical care is clearly beneficial, it should ildren’s Hos- pitals and Related Institutions, Asso- ciation for Retarded Citizens, Down’s Syndrome Congress, Spina Bifida Asso- ciation, and others: When medical care is clearly beneficial, it should always be provided. When appropriate medical care is not available, arrangements should be made to transfer the infant to an appropriate medical facility. Consideration such as anticipated or actual limited poten- tial of an individual and present or future lack of available community resources are irrelevant and must not determine the deci- sions concerning medical care. The individ- ual’s medical condition should be the sole focus of the decision. These are very strict standards. It is ethically and legally justified to with- hold medical or surgical procedures which are clearly futile and will only prolong the act of dying. However, supportive care should be provided, including sustenance as medically indicated and relief of pain and suffering. The needs of the dying person should be respected. The family also should be supported in its grieving. In cases where it is uncertain whether medical treatment will be beneficial, a per- son’s disability must not be the basis for a decision espected. The family also should be supported in its grieving. In cases where it is uncertain whether medical treatment will be beneficial, a per- son’s disability must not be the basis for a decision to withhold treatment. At all times during the process when decisions are being made about the benefit or futility of medical treatment, the person should be cared for in the medically most appropriate ways. When doubt exists at any time about whether to treat, a presumption always should be in favor of treatment. (C) As stated by the President’s Com- mission for the Study of Ethical Prob- lems in Medicine and Biomedical and Behavioral Research: This [standard for providing medically beneficial treatment] is a very strict stand- ard in that it excludes consideration of the negative effects of an impaired child’s life on other persons, including parents, siblings, and society. Although abiding by this stand- ard may be difficult in specific cases, it is all too easy to undervalue the lives of infants with disabilities; the Commission finds it imperative to counteract this by treating them no less vigorously than their healthy peers or than older children with similar dis- abilities wou of infants with disabilities; the Commission finds it imperative to counteract this by treating them no less vigorously than their healthy peers or than older children with similar dis- abilities would be treated. (iii) The ICRC will carry out its pur- poses by: (A) Recommending institutional poli- cies concerning the withholding or withdrawal of medical or surgical treatments to infants, including guide- lines for ICRC action for specific cat- egories of life-threatening conditions affecting infants; (B) Providing advice in specific cases when decisions are being considered to withhold or withdraw from infant life- sustaining medical or surgical treat- ment; and (C) Reviewing retrospectively on a regular basis infant medical records in situations life-sustaining medical or surgical treatment has been withheld or withdrawn. in which (2) Organization and staffing. The ICRC will consist of at least 7 members and include the following: 484 Dept. of Health and Human Services § 84.55 (i) A practicing physician (e.g., a pe- diatrician, a neonatologist, or a pedi- atric surgeon), (ii) A practicing nurse, (iii) A hospital administrator, (iv) A representative of the legal pro- fession, (v) practicing physician (e.g., a pe- diatrician, a neonatologist, or a pedi- atric surgeon), (ii) A practicing nurse, (iii) A hospital administrator, (iv) A representative of the legal pro- fession, (v) A representative of a disability group, or a developmental disability expert, (vi) A lay community member, and (vii) A member of a facility’s orga- nized medical staff, who shall serve as chairperson. In connection with review of specific cases, one member of the ICRC shall be designated to act as ‘‘special advocate’’ for the infant, as provided in paragraph (f)(3)(ii)(E) of the section. The hospital will provide staff support for the ICRC, including legal counsel. The ICRC will meet on a regular basis, or as required below in connection with review of spe- cific cases. It shall adopt or rec- ommend to the appropriate hospital of- ficial or body such administrative poli- cies as terms of office and quorum re- quirements. The ICRC will recommend procedures to ensure that both hospital personnel and patient families are fully informed of the existence and functions of the ICRC and its availability on a 24- hour basis. (3) Operation of ICRC—(i) Prospective policy development. (A) The ICR onnel and patient families are fully informed of the existence and functions of the ICRC and its availability on a 24- hour basis. (3) Operation of ICRC—(i) Prospective policy development. (A) The ICRC will develop and recommend for adoption by the hospital institutional policies concerning the withholding or with- drawal of medical treatment for in- fants with life-threatening conditions. These will include guidelines for man- agement of specific types of cases or di- agnoses, for example, Down’s syndrome and spina bifida, and procedures to be followed cir- cumstances as, for example, brain death and parental refusal to consent to life-saving treatment. The hospital, upon recommendation of the ICRC, may require attending physicians to notify the ICRC of the presence in the facility of an infant with a diagnosis specified by the ICRC, e.g., Down’s syn- drome and spina bifida. recurring such in (B) In recommending these policies and guidelines, the ICRC will consult with medical and other authorities on issues involving disabled individuals, e.g., neonatologists, pediatric surgeons, county and city agencies which provide services for the disabled, and disability advocacy organizatio er authorities on issues involving disabled individuals, e.g., neonatologists, pediatric surgeons, county and city agencies which provide services for the disabled, and disability advocacy organizations. It will also consult with appropriate committees of the medical staff, to ensure that the ICRC policies and guidelines build on existing staff by-laws, rules and regula- tions concerning consultations and staff membership requirements. The ICRC will also inform and educate hos- pital staff on the policies and guide- lines it develops. (ii) Review of specific cases. In addi- tion to regularly scheduled meetings, interim ICRC meetings will take place under specified circumstances to per- mit review of individual cases. The hospital will, to the extent possible, re- quire in each case that life-sustaining treatment be continued, until the ICRC can review the case and provide advice. (A) Interim ICRC meetings will be convened within 24 hours (or less if in- dicated) when there is disagreement between the family of an infant and the infant’s physician as to the with- holding or withdrawal of treatment, when a preliminary decision to with- hold or withdraw life-sustaining treat- ment has ent between the family of an infant and the infant’s physician as to the with- holding or withdrawal of treatment, when a preliminary decision to with- hold or withdraw life-sustaining treat- ment has been made in certain cat- egories of cases identified by the ICRC, when there is disagreement between members of the hospital’s medical and/ or nursing staffs, or when otherwise ap- propriate. (B) Such interim ICRC meetings will take place upon the request of any member of the ICRC or hospital staff or parent or guardian of the infant. The ICRC will have procedures to preserve the confidentiality of the identity of persons making such requests, and such persons shall be protected from reprisal. When appropriate, the ICRC or a designated member will inform the requesting individual of the ICRC’s rec- ommendation. (C) The ICRC may provide for tele- phone and other forms of review when the timing and nature of the case, as identified in policies developed by the ICRC, make the convening of an in- terim meeting impracticable. (D) Interim meetings will be open to the affected parties. The ICRC will en- sure that the interests of the parents, the physician, and the child are fully considere n in- terim meeting impracticable. (D) Interim meetings will be open to the affected parties. The ICRC will en- sure that the interests of the parents, the physician, and the child are fully considered; that family members have been fully informed of the patient’s 485 § 84.56 45 CFR Subtitle A (10–1–24 Edition) condition and prognosis; that they have been provided with a listing which describes the services furnished by par- ent support groups and public and pri- vate agencies in the geographic vicin- ity to infants with conditions such as that before the ICRC; and that the ICRC will facilitate their access to such services and groups. (E) To ensure a comprehensive eval- uation of all options and factors perti- nent to the committee’s deliberations, the chairperson will designate one member of the ICRC to act, in connec- tion with that specific case, as special advocate for the infant. The special ad- vocate will seek to ensure that all con- siderations in favor of the provision of life-sustaining treatment are fully evaluated and considered by the ICRC. (F) In cases in which there is dis- agreement on treatment between a physician and an infant’s family, and the family wishes to c e-sustaining treatment are fully evaluated and considered by the ICRC. (F) In cases in which there is dis- agreement on treatment between a physician and an infant’s family, and the family wishes to continue life-sus- taining treatment, the family’s wishes will be carried out, for as long as the family wishes, unless such treatment is medically contraindicated. When there is physician/family disagreement and the family refuses consent to life-sus- taining treatment, and the ICRC, after due deliberation, agrees with the fam- ily, the ICRC will recommend that the treatment be withheld. When there is physician/family disagreement and the family refuses consent, but the ICRC disagrees with the family, the ICRC will recommend to the hospital board or appropriate official that the case be referred immediately to an appropriate court or child protective agency, and every effort shall be made to continue treatment, preserve the status quo, and prevent worsening of the infant’s con- dition until such time as the court or agency renders a decision or takes other appropriate action. The ICRC will also follow this procedure in cases in which the family and physician agree that life-sustaining l such time as the court or agency renders a decision or takes other appropriate action. The ICRC will also follow this procedure in cases in which the family and physician agree that life-sustaining treatment should be withheld or withdrawn, but the ICRC disagrees. (iii) Retrospective record review. The ICRC, at its regularly-scheduled meet- ing, will review all records involving withholding or termination of medical or surgical treatment to infants con- sistent with hospital policies developed by the ICRC, unless the case was pre- viously before the ICRC pursuant to paragraph (f)(3)(ii) of this section. If the ICRC finds that a deviation was made from the institutional policies in a given case, it shall conduct a review and report the findings to appropriate hospital personnel for appropriate ac- tion. (4) Records. The ICRC will maintain records of all of its deliberations and summary descriptions of specific cases considered and the disposition of those cases. Such records will be kept in ac- cordance with institutional policies on confidentiality of medical information. They will be made available to appro- priate government agencies, or upon court order, or as otherwise requir ept in ac- cordance with institutional policies on confidentiality of medical information. They will be made available to appro- priate government agencies, or upon court order, or as otherwise required by law. NOTE: The mandatory provisions set forth in paragraphs (b)–(e) inclusive of this section are subject to an injunction prohibiting their enforcement. In Bowen v. American Hospital Association, ______ U.S. ______, 106 S. Ct. 2101 (1986), the Supreme Court upheld the action of a United States District Court, 585 F. Supp. 541 (S.D.N.Y. 1984), declaring invalid and enjoining enforcement of provisions under this section, promulgated January 12, 1984. (Information collection requirements con- tained in paragraph (c) have been approved by the Office of Management and Budget under control number 0990–0114) [49 FR 1651, Jan. 12, 1984, as amended at 52 FR 3012, Jan. 30, 1987; 70 FR 24320, May 9, 2005; 89 FR 40188, May 9, 2024] § 84.56 Medical treatment. (a) Discrimination prohibited. No quali- fied individual with a disability shall, on the basis of disability, be subjected to discrimination in medical treatment under any program or activity that re- ceives Federal financial assistance ali- fied individual with a disability shall, on the basis of disability, be subjected to discrimination in medical treatment under any program or activity that re- ceives Federal financial assistance, in- cluding in the allocation or withdrawal of any good, benefit, or service. (b) Specific prohibitions. The general prohibition in paragraph (a) of this sec- tion includes the following specific pro- hibitions: (1) Denial of medical treatment. A re- cipient may not deny or limit medical treatment to a qualified individual with a disability when the denial is based on: (i) Bias or stereotypes about a pa- tient’s disability; (ii) Judgments that the individual will be a burden on others due to their 486 Dept. of Health and Human Services § 84.60 disability, including, but not limited to caregivers, family, or society; or (iii) A belief that the life of a person with a disability has lesser value than the life of a person without a dis- ability, or that life with a disability is not worth living. (2) Denial of treatment for a separate symptom or condition. Where a qualified individual with a disability or their au- thorized representative seeks or con- sents to treatment for a separatel iving. (2) Denial of treatment for a separate symptom or condition. Where a qualified individual with a disability or their au- thorized representative seeks or con- sents to treatment for a separately diagnosable symptom or medical condi- tion (whether or not that symptom or condition is a disability under this part or is causally connected to the individ- ual’s underlying disability), a recipient may not deny or limit clinically appro- priate treatment if it would be offered to a similarly situated individual with- out an underlying disability. (3) Provision of medical treatment. A re- cipient may not, on the basis of dis- ability, provide a medical treatment to an individual with a disability where it would not provide the same treatment to an individual without a disability, unless the disability impacts the effec- tiveness, or ease of administration of the treatment itself, or has a medical effect on the condition to which the treatment is directed. (c) Construction—(1) Professional judg- ment in treatment. (i) Nothing in this section requires the provision of med- ical treatment where the recipient has a legitimate, nondiscriminatory reason for denying or limiting that servic al judg- ment in treatment. (i) Nothing in this section requires the provision of med- ical treatment where the recipient has a legitimate, nondiscriminatory reason for denying or limiting that service or where the disability renders the indi- vidual not qualified for the treatment. (ii) Circumstances in which the re- cipient has a legitimate, nondiscrim- inatory reason for denying or limiting a service or where the disability ren- ders the individual not qualified for the treatment may include circumstances in which the recipient typically de- clines to provide the treatment to any individual, or reasonably determines based on current medical knowledge or the best available objective evidence that such medical treatment is not clinically appropriate for a particular individual. The criteria in paragraphs (b)(1)(i) through (iii) of this section are not a legitimate nondiscriminatory reason for denying or limiting medical treatment and may not be a basis for a determination that an individual is not qualified for the treatment, or that a treatment is not clinically appropriate for a particular individual. (2) Consent. (i) Nothing in this section requires a recipient to provide medic vidual is not qualified for the treatment, or that a treatment is not clinically appropriate for a particular individual. (2) Consent. (i) Nothing in this section requires a recipient to provide medical treatment to an individual where the individual, or their authorized rep- resentative, does not consent to that treatment. (ii) Nothing in this section allows a recipient to discriminate against a qualified individual with a disability on the basis of disability in seeking to obtain consent from an individual or their authorized representative for the recipient to provide, withhold, or with- draw treatment. (3) Providing information. Nothing in this section precludes a provider from providing an individual with a dis- ability or their authorized representa- tive with information regarding the implications of different courses of treatment based on current medical knowledge or the best available objec- tive evidence. [89 FR 40188, May 9, 2024] § 84.57 Value assessment methods. A recipient shall not, directly or through contractual, licensing, or other arrangements, use any measure, assessment, or tool that discounts the value of life extension on the basis of disability to deny or af t shall not, directly or through contractual, licensing, or other arrangements, use any measure, assessment, or tool that discounts the value of life extension on the basis of disability to deny or afford an unequal opportunity to qualified individuals with disabilities with respect to the eligibility or referral for, or provision or withdrawal of any aid, benefit, or service, including the terms or condi- tions under which they are made avail- able. [89 FR 40188, May 9, 2024] §§ 84.58–84.59 [Reserved] § 84.60 Children, parents, caregivers, foster parents, and prospective par- ents in the child welfare system. (a) Discriminatory actions prohibited. (1) No qualified individual with a dis- ability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any child welfare program or activity that receives Federal financial assistance. 487 § 84.68 45 CFR Subtitle A (10–1–24 Edition) (2) Under the prohibition set forth in paragraph (a)(1) of this section, dis- crimination includes: (i) Decisions based on speculation, stereotypes, or generalizations that a parent, caregiver, foster parent, or pro- s ibition set forth in paragraph (a)(1) of this section, dis- crimination includes: (i) Decisions based on speculation, stereotypes, or generalizations that a parent, caregiver, foster parent, or pro- spective parent, because of a disability, cannot safely care for a child; and (ii) Decisions based on speculation, stereotypes, or generalizations about a child with a disability. (b) Additional prohibitions. The prohi- bitions in paragraph (a) of this section apply to actions by a recipient of Fed- eral financial assistance made directly or through contracts, agreements, or other arrangements, including any ac- tion to: (1) Deny a qualified parent with a dis- ability custody or control of, or visita- tion to, a child; (2) Deny a qualified parent with a dis- ability an opportunity to participate in or benefit from any and all services provided by a child welfare agency, in- cluding but not limited to, family pres- ervation and reunification services equal to that afforded to persons with- out disabilities; (3) Terminate the parental rights or legal guardianship of a qualified indi- vidual with a disability; (4) Deny a qualified caregiver, foster parent, companion, or prospective par- en ut disabilities; (3) Terminate the parental rights or legal guardianship of a qualified indi- vidual with a disability; (4) Deny a qualified caregiver, foster parent, companion, or prospective par- ent with a disability the opportunity to participate in or benefit from child welfare programs and activities; or (5) Require children, on the basis on the disability, to be placed outside the family home through custody relin- quishment, voluntary placement, or other forfeiture of parental rights in order to receive necessary services. (c) Parenting evaluation procedures. A recipient to which this subpart applies shall establish procedures for referring to qualified professionals for evalua- tion those individuals, who, because of disability, need or are believed to need adapted services or reasonable modi- fications. A recipient shall also ensure that tests, assessments, and other eval- uation tools and materials used for the purpose of assessing or evaluating par- enting ability are based in evidence or research, are conducted by a qualified professional and are tailored to assess actual parenting ability and specific areas of disability-related needs. Par- enting evaluations must be in evidence or research, are conducted by a qualified professional and are tailored to assess actual parenting ability and specific areas of disability-related needs. Par- enting evaluations must be fully acces- sible to people with disabilities and shall not be based on a single general intelligence quotient or measure of the person’s disability, rather than their parenting ability. Assessments of par- ents or children must be individualized and based on the best available objec- tive evidence. [89 FR 40188, May 9, 2024] Subpart G—General Requirements SOURCE: 89 FR 40189, May 9, 2024, unless otherwise noted. § 84.68 General prohibitions against discrimination. (a) No qualified individual with a dis- ability shall, solely on the basis of dis- ability, be excluded from participation in or be denied the benefits of the pro- grams or activities of a recipient, or be subjected to discrimination by any re- cipient. (b)(1) A recipient, in providing any aid, benefit, or service, may not, di- rectly or through contractual, licens- ing, or other arrangements, on the basis of disability— (i) Deny a qualified individual with a disability the opportunity to partici- pate in or benefit from th rectly or through contractual, licens- ing, or other arrangements, on the basis of disability— (i) Deny a qualified individual with a disability the opportunity to partici- pate in or benefit from the aid, benefit, or service. (ii) Afford a qualified individual with a disability an opportunity to partici- pate in or benefit from the aid, benefit, or service that is not equal to that af- forded others. (iii) Provide a qualified individual with a disability an aid, benefit, or service that is not as effective in af- fording equal opportunity to obtain the same result, to gain the benefit or to reach the same level of achievement as that provided to others. (iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of indi- viduals with disabilities than is pro- vided to others unless such action is necessary to provide qualified individ- uals with disabilities with aids, bene- fits, or services that are as effective as those provided to others. (v) Aid or perpetuate discrimination against a qualified individual with a 488 Dept. of Health and Human Services § 84.68 disability by providing significant as- sistance to an agency, orga to others. (v) Aid or perpetuate discrimination against a qualified individual with a 488 Dept. of Health and Human Services § 84.68 disability by providing significant as- sistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, ben- efit, or service to beneficiaries of the recipient’s program. (vi) Deny a qualified individual with a disability the opportunity to partici- pate as a member of planning or advi- sory boards. (vii) Otherwise limit a qualified indi- vidual with a disability in the enjoy- ment of any right, privilege, advan- tage, or opportunity enjoyed by others receiving the aid, benefit, or service. (2) A recipient may not deny a quali- fied individual with a disability the op- portunity to participate in programs or activities that are not separate or dif- ferent, despite the existence of permis- sibly separate or different programs or activities. (3) A recipient may not, directly or through contractual or other arrange- ments, utilize criteria or methods of administration— (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of dis- ability; (ii) That arrange- ments, utilize criteria or methods of administration— (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of dis- ability; (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to individuals with disabilities; or (iii) That perpetuate the discrimina- tion of another recipient if both recipi- ents are subject to common adminis- trative control or are agencies of the same state. (4) A recipient may not, in deter- mining the site or location of a facil- ity, make selections— (i) That have the effect of excluding individuals with disabilities from, de- nying them the benefits of, or other- wise subjecting them to discrimina- tion; or (ii) That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the program or activity with respect to individuals with disabilities. (5) A recipient, in the selection of procurement contractors, may not use criteria that subject qualified individ- uals with disabilities to discrimination on the basis of disability. (6) A recipient may not ad pient, in the selection of procurement contractors, may not use criteria that subject qualified individ- uals with disabilities to discrimination on the basis of disability. (6) A recipient may not administer a licensing or certification program in a manner that subjects qualified individ- uals with disabilities to discrimination on the basis of disability, nor may a re- cipient establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to dis- crimination on the basis of disability. The programs or activities of entities that are licensed or certified by the re- cipient are not, themselves, covered by this part. (7)(i) A recipient shall make reason- able modifications in policies, prac- tices, or procedures when such modi- fications are necessary to avoid dis- crimination on the basis of disability, unless the recipient can demonstrate that making the modifications would fundamentally alter the nature of the program or activity. (ii) A recipient is not required to pro- vide a reasonable modification to an individual who meets the definition of ‘‘disability’’ solely under the ‘‘regarded as’’ prong of f the program or activity. (ii) A recipient is not required to pro- vide a reasonable modification to an individual who meets the definition of ‘‘disability’’ solely under the ‘‘regarded as’’ prong of the definition of disability in § 84.4(a)(1)(iii). (8) A recipient shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of indi- viduals with disabilities from fully and equally enjoying any program or activ- ity, unless such criteria can be shown to be necessary for the provision of the program or activity being offered. (c) Nothing in this part prohibits a recipient from providing benefits, serv- ices, or advantages to individuals with disabilities, or to a particular class of individuals with disabilities beyond those required by this part. (d) A recipient shall administer pro- grams and activities in the most inte- grated setting appropriate to the needs of qualified individuals with disabil- ities. (e)(1) Nothing in this part shall be construed to require an individual with a disability to accept a modification, aid, service, opportunity, or benefit provided under section 504 or this part which such indi thing in this part shall be construed to require an individual with a disability to accept a modification, aid, service, opportunity, or benefit provided under section 504 or this part which such individual chooses not to accept. (2) Nothing in section 504 or this part authorizes the representative or guard- ian of an individual with a disability to 489 § 84.69 45 CFR Subtitle A (10–1–24 Edition) decline food, water, medical treatment, or medical services for that individual. (f) A recipient may not place a sur- charge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of aux- iliary aids or program accessibility, that are required to provide that indi- vidual or group with the nondiscrim- inatory treatment required by section 504 or this part. (g) A recipient shall not exclude or otherwise deny equal programs or ac- tivities to an individual or entity be- cause of the known disability of an in- dividual with whom the individual or entity is known to have a relationship or association. (h) A recipient may impose legiti- mate safety requirements necessary for the safe operation of its progr n- dividual with whom the individual or entity is known to have a relationship or association. (h) A recipient may impose legiti- mate safety requirements necessary for the safe operation of its programs or activities. However, the recipient must ensure that its safety requirements are based on actual risks, not on mere speculation, stereotypes, or generaliza- tions about individuals with disabil- ities. (i) Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to dis- crimination because of a lack of dis- ability, including a claim that an indi- vidual with a disability was granted a reasonable modification that was de- nied to an individual without a dis- ability. § 84.69 Illegal use of drugs. (a) General. (1) Except as provided in paragraph (b) of this section, this part does not discrimination against an individual based on that in- dividual’s current illegal use of drugs. prohibit (2) A recipient shall not discriminate on the basis of illegal use of drugs against an individual who is not engag- ing in current illegal use of drugs and who— (i) Has successfully completed a su- pervised drug rehabilitation program or has othe basis of illegal use of drugs against an individual who is not engag- ing in current illegal use of drugs and who— (i) Has successfully completed a su- pervised drug rehabilitation program or has otherwise been rehabilitated successfully; (ii) Is participating in a supervised rehabilitation program; or (iii) Is erroneously regarded as engag- ing in such use. (b) Services provided under the Reha- bilitation Act. (1) A recipient shall not exclude an individual on the basis of that individual’s current illegal use of drugs from the benefits of programs and activities providing health services and services provided under sub- chapters I, II, and III of the Rehabilita- tion Act, if the individual is otherwise entitled to such services. (2) A drug rehabilitation or treat- ment program may deny participation to individuals who engage in illegal use of drugs while they are in the program. (c) Drug testing. (1) This part does not prohibit the recipient from adopting or administering reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now en- gaging in current illegal use o policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now en- gaging in current illegal use of drugs. (2) Nothing in this paragraph (c) shall be construed to encourage, prohibit, re- strict, or authorize the conduct of test- ing for the illegal use of drugs. § 84.70 Maintenance of accessible fea- tures. (a) A recipient shall maintain in op- erable working condition those fea- tures of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by section 504 or this part. (b) This section does not prohibit iso- lated or temporary interruptions in service or access due to maintenance or repairs. (c) For a recipient, if the 2010 Stand- ards reduce the technical requirements or the number of required accessible elements below the number required by UFAS, the technical requirements or the number of accessible elements in a facility subject to this part may be re- duced in accordance with the require- ments of the 2010 Standards. § 84.71 Retaliation or coercion. (a) A recipient shall not discriminate against any individual because bject to this part may be re- duced in accordance with the require- ments of the 2010 Standards. § 84.71 Retaliation or coercion. (a) A recipient shall not discriminate against any individual because that in- dividual has opposed any act or prac- tice made unlawful by this part, or be- cause that individual made a charge, testified, assisted, or participated in any manner in an investigation, pro- ceeding, or hearing under section 504 or this part. (b) A recipient shall not coerce, in- timidate, threaten, or interfere with 490 Dept. of Health and Human Services § 84.73 any individual in the exercise or enjoy- ment of, or on account of their having exercised or enjoyed, or on account of their having aided or encouraged any other individual in the exercise or en- joyment of any right granted or pro- tected by section 504 or this part. § 84.72 Personal devices and services. This part does not require a recipient to provide to individuals with disabil- ities personal devices, such as wheel- chairs; individually prescribed devices, such as prescription eyeglasses or hear- ing aids; readers for personal use or study; or services of a personal nature including eating, toileting, or dressi - chairs; individually prescribed devices, such as prescription eyeglasses or hear- ing aids; readers for personal use or study; or services of a personal nature including eating, toileting, or dressing. assistance in § 84.73 Service animals. (a) General. Generally, a recipient shall modify its policies, practices, or procedures to permit the use of a serv- ice animal by an individual with a dis- ability. (b) Exceptions. A recipient may ask an individual with a disability to re- move a service animal from the prem- ises if— (1) The animal is out of control and the animal’s handler does not take ef- fective action to control it; or (2) The animal is not housebroken. (c) If an animal is properly excluded. If a recipient properly excludes a service animal under paragraph (b) of this sec- tion, it shall give the individual with a disability the opportunity to partici- pate in the program or activity with- out having the service animal on the premises. (d) Animal under handler’s control. A service animal shall be under the con- trol of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is un- able because of a disability to use a harnes service animal shall be under the con- trol of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is un- able because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service ani- mal’s safe, effective performance of work or tasks, in which case the serv- ice animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means). (e) Care or supervision. A recipient is not responsible for the care or super- vision of a service animal. (f) Inquiries. A recipient shall not ask about the nature or extent of a person’s disability but may make two inquiries to determine whether an animal quali- fies as a service animal. A recipient may ask if the animal is required be- cause of a disability and what work or task the animal has been trained to perform. A recipient shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a recipient may not make these inquir- ies about a service animal when it is readily apparent that an animal is trained to mal has been certified, trained, or licensed as a service animal. Generally, a recipient may not make these inquir- ies about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person’s wheelchair, or providing as- sistance with stability or balance to an individual with an observable mobility disability). (g) Access to areas of the recipient. In- dividuals with disabilities shall be per- mitted to be accompanied by their service animals in all areas of the re- cipient’s facilities where members of the public, participants in programs or activities, or invitees, as relevant, are allowed to go. (h) Surcharges. A recipient shall not ask or require an individual with a dis- ability to pay a surcharge, even if peo- ple accompanied by pets are required to pay fees, or to comply with other re- quirements generally not applicable to people without pets. If a recipient nor- mally charges individuals for the dam- age they cause, an individual with a disability may be charged for damage caused by their service animal. ( pplicable to people without pets. If a recipient nor- mally charges individuals for the dam- age they cause, an individual with a disability may be charged for damage caused by their service animal. (i) Miniature horses—(1) Reasonable modifications. A recipient shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an indi- vidual with a disability if the minia- ture horse has been individually trained to do work or perform tasks for the benefit of the individual with a dis- ability. (2) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a recipient shall consider— 491 § 84.74 45 CFR Subtitle A (10–1–24 Edition) (i) The type, size, and weight of the miniature horse and whether the facil- ity can accommodate these features; (ii) Whether the handler has suffi- cient control of the miniature horse; (iii) Whether the miniature horse is housebroken; and (iv) Whether the miniature horse’s presence in a specific facility com- promises legitimate safety require- ments that are necessary for safe oper- ation. (3) r the miniature horse is housebroken; and (iv) Whether the miniature horse’s presence in a specific facility com- promises legitimate safety require- ments that are necessary for safe oper- ation. (3) Other requirements. Paragraphs (c) through (h) of this section, which apply to service animals, shall also apply to miniature horses. § 84.74 Mobility devices. (a) Use of wheelchairs and manually- powered mobility aids. A recipient shall permit individuals with mobility dis- abilities to use wheelchairs and manu- ally-powered mobility aids, such as walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabil- ities in any areas open to pedestrian use. (b) Use of other power-driven mobility devices—(1) Requirement. A recipient shall make reasonable modifications in its policies, practices, or procedures to permit the use of other power-driven mobility devices by individuals with mobility disabilities, unless a recipient can demonstrate that the class of other power-driven mobility devices cannot be operated in accordance with legiti- mate safety requirements that a recipi- ent has adopted pursuant to § 84.68(h). (2) Assessment factors at the class of other power-driven mobility devices cannot be operated in accordance with legiti- mate safety requirements that a recipi- ent has adopted pursuant to § 84.68(h). (2) Assessment factors. In determining whether a particular other power-driv- en mobility device can be allowed in a specific facility as a reasonable modi- fication under paragraph (b)(1) of this section, a recipient shall consider— (i) The type, size, weight, dimensions, and speed of the device; (ii) The facility’s volume of pedes- trian traffic (which may vary at dif- ferent times of the day, week, month, or year); (iii) The facility’s design and oper- ational characteristics (e.g., whether its program or activity is conducted in- doors, its square footage, the density and placement of stationary devices, and the availability of storage for the device, if requested by the user); (iv) Whether legitimate safety re- quirements can be established to per- mit the safe operation of the other power-driven mobility device in the specific facility; and (v) Whether the use of the other power-driven mobility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resour device in the specific facility; and (v) Whether the use of the other power-driven mobility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations. (c) Inquiry about disability—(1) Re- quirement. A recipient shall not ask an individual using a wheelchair or other power-driven mobility device questions about the nature and extent of the in- dividual’s disability. (2) Inquiry into use of other power-driv- en mobility device. A recipient may ask a person using an other power-driven mobility device to provide a credible assurance that the mobility device is required because of the person’s dis- ability. A recipient in permitting the use of an other power-driven mobility device by an individual with a mobility disability shall accept the presentation of a valid, State-issued, disability parking placard or card, or other State-issued proof of disability as a credible assurance that the use of the other power-driven mobility device is for the individual’s mobility disability. In lieu of a valid, State-issued dis- ability parking placard or card, or State-issued p e assurance that the use of the other power-driven mobility device is for the individual’s mobility disability. In lieu of a valid, State-issued dis- ability parking placard or card, or State-issued proof of disability, a re- cipient shall accept as a credible assur- ance a verbal representation, not con- tradicted by observable fact, that the other power-driven mobility device is being used for a mobility disability. A ‘‘valid’’ disability placard or card is one that is presented by the individual to whom it was issued and is otherwise in compliance with the State of issuance’s requirements for disability placards or cards. § 84.75 Direct threat. (a) This part does not require a re- cipient to permit an individual to par- ticipate in or benefit from the pro- grams or activities of that recipient when that individual poses a direct threat. (b) Except as provided in paragraph (c) of this section, in determining whether an individual poses a direct 492 Dept. of Health and Human Services § 84.77 threat, a recipient must make an indi- vidualized assessment, based on reason- able judgment that relies on current medical knowledge or on the best available objective evidence, to ascer- tai § 84.77 threat, a recipient must make an indi- vidualized assessment, based on reason- able judgment that relies on current medical knowledge or on the best available objective evidence, to ascer- tain: the nature, duration, and severity of the risk; the probability that the po- tential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. (c) In determining whether an indi- vidual poses a direct threat in employ- ment, the recipient must make an indi- vidualized assessment according to the Equal Employment Opportunity Com- implementing mission’s title I of the Americans with Disabil- ities Act of 1990, at 29 CFR 1630.2(r). regulation § 84.76 Integration. (a) Application. This section applies to programs or activities that receive Federal financial assistance from the Department and to recipients that op- erate such programs or activities. (b) Discriminatory action prohibited. A recipient shall administer a program or activity in the most integrated setting appropriate to the needs of a qualified person with a disability. (c) Segregated setting. Segregated set- ti ohibited. A recipient shall administer a program or activity in the most integrated setting appropriate to the needs of a qualified person with a disability. (c) Segregated setting. Segregated set- tings include but are not limited to congregate settings that are populated exclusively or primarily with individ- uals with disabilities and may be char- acterized by regimentation in daily ac- tivities; lack of privacy or autonomy; or policies or practices limiting visi- tors or limiting individuals’ ability to engage freely in community activities and to manage their own activities of daily living. (d) Specific prohibitions. The general prohibition in paragraph (b) of this sec- tion includes but is not limited to the following specific prohibitions, to the extent that such action results in un- necessary segregation, or serious risk of such segregation, of persons with disabilities. (1) Establishing or applying policies or practices that limit or condition in- dividuals with disabilities’ access to the most integrated setting appro- priate to their needs; (2) Providing greater benefits or ben- efits under more favorable terms in segregated settings than in integrated settings; (3) Est access to the most integrated setting appro- priate to their needs; (2) Providing greater benefits or ben- efits under more favorable terms in segregated settings than in integrated settings; (3) Establishing or applying more re- strictive rules and requirements for qualified individuals with disabilities in integrated settings than for individ- uals with disabilities in segregated set- tings; or (4) Failure to provide community- based services that results in institu- tionalization or serious risk of institu- tionalization. This paragraph (d)(4) in- cludes, but is not limited to planning, service system design, funding, or serv- ice implementation practices that re- sult in institutionalization or serious risk of institutionalization. Qualified individuals with disabilities need not wait until the harm of institutionaliza- tion or segregation occurs to assert their right to avoid unnecessary seg- regation. (e) Fundamental alteration. A recipi- ent may establish a defense to the ap- plication of this section if it can dem- onstrate that a requested modification would fundamentally alter the nature of its program or activity. Subpart H—Communications SOURCE: 89 FR 40192, May 9, 202 lication of this section if it can dem- onstrate that a requested modification would fundamentally alter the nature of its program or activity. Subpart H—Communications SOURCE: 89 FR 40192, May 9, 2024, unless otherwise noted. § 84.77 General. (a)(1) A recipient shall take appro- priate steps to ensure that communica- tions with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others. (2) For purposes of this section, com- panion means a family member, friend, or associate of an individual seeking access to a program or activity of a re- cipient, who, along with such indi- vidual, is an appropriate person with whom the recipient should commu- nicate. (b)(1) The recipient shall furnish ap- propriate auxiliary aids and services where necessary to afford qualified in- dividuals with disabilities, including applicants, participants, beneficiaries, companions, and members of the pub- lic, an equal opportunity to participate in, and enjoy the benefits of, a program or activity of a recipient. 493 § 84.78 45 CFR Subtitle A (10–1–24 Edition) (2) The type of auxiliary aid or serv- ice necessary to ensure effective com- ipate in, and enjoy the benefits of, a program or activity of a recipient. 493 § 84.78 45 CFR Subtitle A (10–1–24 Edition) (2) The type of auxiliary aid or serv- ice necessary to ensure effective com- munication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the commu- nication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are nec- essary, a recipient shall give primary consideration to the requests of indi- viduals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independ- ence of the individual with a disability. (c)(1) A recipient shall not require an individual with a disability to bring another individual to interpret for him or her. (2) A recipient shall not rely on an adult accompanying an individual with a disability to interpret or facilitate communication except— (i) In an emergency involving an im- minent threat to the safety or welfare of an individual or the public where there is no interp l with a disability to interpret or facilitate communication except— (i) In an emergency involving an im- minent threat to the safety or welfare of an individual or the public where there is no interpreter available; or (ii) When the individual with a dis- ability specifically requests that the accompanying adult interpret or facili- tate accom- panying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. communication, the (3) A recipient shall not rely on a minor child to interpret or facilitate communication, except in an emer- gency involving an imminent threat to the safety or welfare of an individual or the public when there is no inter- preter available. (d) When the recipient chooses to provide qualified interpreters via video remote interpreting services (VRI), it shall ensure that it provides— (1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high- quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in commu- nication; (2) A sharply delineated image that is lar eless connection that delivers high- quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in commu- nication; (2) A sharply delineated image that is large enough to display the inter- preter’s face, arms, hands, and fingers, and the participating individual’s face, arms, hands, and fingers, regardless of their body position; (3) A clear, audible transmission of voices; and (4) Adequate training to users of the technology and other involved individ- uals so that they may quickly and effi- ciently set up and operate the VRI. § 84.78 Telecommunications. (a) Where a recipient communicates by telephone with applicants and bene- ficiaries, text telephones (TTYs) or equally effective telecommunications systems shall be used to communicate with individuals who are deaf or hard of hearing or have speech impairments. (b) When a recipient uses an auto- mated-attendant including, but not limited to, voice mail and mes- saging, or an interactive voice response system, for receiving and directing in- coming telephone calls, that system must provide effective real-time com- munication with individuals using aux- iliary aids and services, including T response system, for receiving and directing in- coming telephone calls, that system must provide effective real-time com- munication with individuals using aux- iliary aids and services, including TTYs and all forms of Federal Commu- nications Commission (FCC)-approved telecommunications relay systems, in- cluding internet-based relay systems. system, (c) A recipient shall respond to tele- phone calls from a telecommunications relay service established under title IV of the ADA in the same manner that it responds to other telephone calls. § 84.79 Telephone emergency services. Telephone emergency services, in- cluding 911 services, shall provide di- rect access to individuals who use TTYs and computer modems. § 84.80 Information and signage. (a) A recipient shall ensure that in- terested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, ac- tivities, and facilities. (b) A recipient shall provide signage at all inaccessible entrances to each of its facilities, directing users to an ac- cessible entrance or to a location at which they can obtain information about accessible facilities. The inte signage at all inaccessible entrances to each of its facilities, directing users to an ac- cessible entrance or to a location at which they can obtain information about accessible facilities. The inter- national symbol for accessibility shall 494 Dept. of Health and Human Services § 84.84 be used at each accessible entrance of a facility. § 84.84 Requirements for web and mo- bile accessibility. § 84.81 Duties. This subpart does not require a re- cipient to take any action that it can demonstrate would result in a funda- mental alteration in the nature of a program or activity or undue financial and administrative burdens. In those circumstances where a recipient’s per- sonnel believe that the proposed action would fundamentally alter the program or activity or would result in undue fi- nancial and administrative burdens, the recipient has the burden of proving that compliance with this subpart would result in such alteration or bur- dens. The decision that compliance would result in such alteration or bur- dens must be made by the head of the recipient or their designee after consid- ering all the recipient’s resources available for use in the funding and op- eration of the program ch alteration or bur- dens must be made by the head of the recipient or their designee after consid- ering all the recipient’s resources available for use in the funding and op- eration of the program or activity and must be accompanied by a written statement of reasons for reaching that conclusion. If an action required to comply with this part would result in such an alteration or such burdens, the recipient shall take any other action that would not result in such an alter- ation or such burdens but would never- theless ensure that, to the maximum extent possible, individuals with dis- abilities receive the benefits or serv- ices provided by the recipient. Subpart I—Web, Mobile, and Kiosk Accessibility SOURCE: 89 FR 40193, May 9, 2024, unless otherwise noted. § 84.82 Application. This subpart applies to all programs or activities that receive Federal fi- nancial assistance from the Depart- ment. § 84.83 Accessibility of kiosks. No qualified individual with a dis- ability shall, on the basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity of a recipient pro- vided through kiosks he basis of disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity of a recipient pro- vided through kiosks. (a) General. A recipient shall ensure that the following are readily acces- sible to and usable by individuals with disabilities: (1) Web content that a recipient pro- vides or makes available, directly or through contractual, licensing, or other arrangements; and (2) Mobile apps that a recipient pro- vides or makes available, directly or through contractual, licensing, or other arrangements. (b) Requirements. (1) Beginning May 11, 2026, a recipient with fifteen or more employees shall ensure that the web content and mobile apps that the recipient provides or makes available, directly or through contractual, licens- ing, or other arrangements, comply with Level A and Level AA success cri- teria and conformance requirements specified in WCAG 2.1, unless the re- cipient can demonstrate that compli- ance with this section would result in a fundamental alteration in the nature of a program or activity or in undue fi- nancial and administrative burdens. (2) Beginning May 10, 2027, a recip t compli- ance with this section would result in a fundamental alteration in the nature of a program or activity or in undue fi- nancial and administrative burdens. (2) Beginning May 10, 2027, a recipient with fewer than fifteen employees shall ensure that the web content and mo- bile apps that the recipient provides or makes available, directly or through contractual, licensing, or other ar- rangements, comply with Level A and Level AA success criteria and conform- ance requirements specified in WCAG 2.1, unless the recipient can dem- onstrate that compliance with this sec- tion would result in a fundamental al- teration in the nature of a program or activity or in undue financial and ad- ministrative burdens. (3) WCAG 2.1 is incorporated by ref- erence into this section with the ap- proval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All material approved for incorporation by reference (IBR) is available for inspection at HHS and at the National Archives and Records Ad- ministration (‘‘NARA’’). Contact HHS, OCR at: Office for Civil Rights, U.S. Department of Health and Human Services, 200 Independence Ave. SW, Room 509F, HHH Building, Washingto chives and Records Ad- ministration (‘‘NARA’’). Contact HHS, OCR at: Office for Civil Rights, U.S. Department of Health and Human Services, 200 Independence Ave. SW, Room 509F, HHH Building, Washington, DC 20201; phone: (202) 545–4884; email: 504@hhs.gov. For information on the 495 § 84.85 45 CFR Subtitle A (10–1–24 Edition) or availability of this material at NARA, visit www.archives.gov/federal-register/ cfr/ibr-locations email fr.inspection@nara.gov. The material may be obtained from the World Wide Web Consortium (W3C) Web Accessi- 401 bility Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273–2711; email: contact@w3.org; website: www.w3.org/ TR/2018/REC-WCAG21-20180605/ and https://perma.cc/UB8A-GG2F. Initiative (‘‘WAI’’), § 84.85 Exceptions. The requirements of § 84.84 do not apply to the following: (a) Archived web content. Archived web content as defined in § 84.10. (b) Preexisting conventional electronic documents. Conventional electronic documents that are available as part of a recipient’s web content or mobile apps before the date the recipient is re- quired to comply with § 84.84, unless such documents are currently used to apply for, gain access to, or pa ble as part of a recipient’s web content or mobile apps before the date the recipient is re- quired to comply with § 84.84, unless such documents are currently used to apply for, gain access to, or participate in the recipient’s programs or activi- ties. (c) Content posted by a third party. Content posted by a third party, unless the third party is posting due to con- tractual, licensing, or other arrange- ments with the recipient. (d) Individualized, password-protected documents or otherwise secured conven- tional electronic documents. Conven- tional electronic documents that are: (1) About a specific individual, their property, or their account; and (2) Password-protected or otherwise secured. (e) Preexisting social media posts. A re- cipient’s social media posts that were posted before the date the recipient is required to comply with § 84.84. § 84.86 Conforming alternate versions. (a) A recipient may use conforming alternate versions of web content, as defined by WCAG 2.1, to comply with § 84.84 only where it is not possible to make web content directly accessible due to technical or legal limitations. (b) WCAG 2.1 is incorporated by ref- erence into this section with the ap- p y with § 84.84 only where it is not possible to make web content directly accessible due to technical or legal limitations. (b) WCAG 2.1 is incorporated by ref- erence into this section with the ap- proval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All material approved for incorporation by reference is available for inspection at HHS and at NARA. Contact HHS, OCR at: Office for Civil Rights, U.S. Department of Health and Human Services, 200 Independence Ave. SW, Room 509F, HHH Building, Wash- ington, DC 20201; phone: (202) 545–4884; email: 504@hhs.gov. For information on the availability of this material at NARA, visit www.archives.gov/federal- register/cfr/ibr-locations email fr.inspection@nara.gov. The material may be obtained from the World Wide Web Consortium (W3C) Web Accessi- bility 401 Edgewater Place, Suite 600, Wakefield, MA 01880; phone: (339) 273–2711; email: contact@w3.org; website: www.w3.org/ and TR/2018/REC-WCAG21-20180605/ https://perma.cc/UB8A-GG2F. Initiative (‘‘WAI’’), or § 84.87 Equivalent facilitation. Nothing in this subpart prevents the use of designs, methods, or techniques as alternatives to those prescribed, provided perma.cc/UB8A-GG2F. Initiative (‘‘WAI’’), or § 84.87 Equivalent facilitation. Nothing in this subpart prevents the use of designs, methods, or techniques as alternatives to those prescribed, provided that the alternative designs, methods, or techniques result in sub- stantially equivalent or greater acces- sibility and usability of the web con- tent or mobile app. § 84.88 Duties. Where a recipient can demonstrate that compliance with the requirements of § 84.84 would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens, compliance with § 84.84 is required to the extent that it does not result in a funda- mental alteration or undue financial and administrative burdens. In those circumstances where personnel of the recipient believe that the proposed ac- tion would fundamentally alter the program or activity or would result in undue financial and administrative burdens, a recipient has the burden of proving that compliance with § 84.84 would result in such alteration or bur- dens. The decision that compliance would result in such alteration or bur- dens must be made by the head of a re- cipient or their designee af ance with § 84.84 would result in such alteration or bur- dens. The decision that compliance would result in such alteration or bur- dens must be made by the head of a re- cipient or their designee after consid- ering all resources available for use in the funding and operation of the pro- gram or activity, and must be accom- panied by a written statement of the reasons for reaching that conclusion. If 496 Dept. of Health and Human Services § 84.92 an action would result in such an alter- ation or such burdens, a recipient shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities re- ceive the benefits or services provided by the recipient to the maximum ex- tent possible. § 84.89 Effect of noncompliance that has a minimal impact on access. A recipient that is not in full compli- ance with the requirements of § 84.84(b) will be deemed to have met the re- quirements of § 84.84 in the limited cir- cumstance in which the recipient can demonstrate that the noncompliance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the recipie ir- cumstance in which the recipient can demonstrate that the noncompliance has such a minimal impact on access that it would not affect the ability of individuals with disabilities to use the recipient’s web content or mobile app to do any of the following in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use: (a) Access the same information as individuals without disabilities; (b) Engage in the same interactions as individuals without disabilities; (c) Conduct the same transactions as individuals without disabilities; and (d) Otherwise participate in or ben- efit from the same programs and ac- tivities as individuals without disabil- ities. Subpart J—Accessible Medical Equipment SOURCE: 89 FR 40194, May 9, 2024, unless otherwise noted. § 84.90 Application. This subpart applies to programs or activities that receive Federal finan- cial assistance from the Department and to recipients that operate, or that receive Federal financial assistance for the operation of, such programs or ac- tivities. § 84.91 Requirements for medical diag- nostic equipment. No qualified individual with a dis- ability shall, on the basis of disability, be exc ance for the operation of, such programs or ac- tivities. § 84.91 Requirements for medical diag- nostic equipment. No qualified individual with a dis- ability shall, on the basis of disability, be excluded from participation in, be denied the benefits of the programs or activities of a recipient offered through or with the use of medical diagnostic equipment (MDE), or otherwise be sub- jected to discrimination under any pro- gram or activity that receives Federal financial assistance because the recipi- ent’s MDE is not readily accessible to or usable by persons with disabilities. § 84.92 Newly purchased, leased, or otherwise acquired medical diag- nostic equipment. (a) Requirements for all newly pur- chased, leased, or otherwise acquired med- ical diagnostic equipment. All MDE that recipients purchase, lease (including via lease renewals), or otherwise ac- quire more than July 8, 2024, subject to the requirements and limitations set forth in this section, meet the Stand- ards for Accessible MDE, unless and until the recipient satisfies the scoping requirements set forth in paragraph (b) of this section. (b) Scoping requirements—(1) General requirement for medical diagnostic equip- ssible MDE, unless and until the recipient satisfies the scoping requirements set forth in paragraph (b) of this section. (b) Scoping requirements—(1) General requirement for medical diagnostic equip- ment. Where a program or activity of a recipient, including physicians’ offices, clinics, emergency rooms, hospitals, outpatient facilities, and multi-use fa- cilities, utilizes MDE, at least 10 per- cent of the total number of units, but no fewer than one unit, of each type of equipment in use must meet the Stand- ards for Accessible MDE. (2) Facilities that specialize in treating conditions that affect mobility. In reha- bilitation facilities that specialize in treating conditions that affect mobil- ity, outpatient physical therapy facili- ties, and other programs or activities that specialize in treating conditions that affect mobility, at least 20 per- cent, but no fewer than one unit, of each type of equipment in use must meet the Standards for Accessible MDE. (3) Facilities with multiple departments. In any facility or program with mul- tiple departments, clinics, or special- ties, where a program or activity uses MDE, the facility shall disperse the ac- cessible MDE required by tiple departments. In any facility or program with mul- tiple departments, clinics, or special- ties, where a program or activity uses MDE, the facility shall disperse the ac- cessible MDE required by paragraphs (b)(1) and (2) of this section in a man- ner that is proportionate by depart- ment, clinic, or specialty using MDE. (c) Requirements for examination tables and weight scales. Within 2 years after July 8, 2024, recipients shall, subject to the requirements and limitations set 497 § 84.93 45 CFR Subtitle A (10–1–24 Edition) forth in this section, purchase, lease, or otherwise acquire the following, un- less the recipient already has them in place: (1) At least one examination table that meets the Standards for Acces- sible MDE, if the recipient uses at least one examination table; and (2) At least one weight scale that meets the Standards for Accessible MDE, if the recipient uses at least one weight scale. (d) Equivalent facilitation. Nothing in this section prevents the use of de- signs, products, or technologies as al- ternatives to those prescribed by the Standards for Accessible MDE, pro- in substantially vided they result equivalent or greater accessibility and usability e- signs, products, or technologies as al- ternatives to those prescribed by the Standards for Accessible MDE, pro- in substantially vided they result equivalent or greater accessibility and usability of the program or activity. The responsibility for demonstrating equivalent facilitation rests with the recipient. (e) Fundamental alteration and undue burdens. This section does not require a recipient to take any action that it can demonstrate would result in a funda- mental alteration in the nature of a program or activity, or in undue finan- cial and administrative burdens. In those circumstances where personnel of the recipient believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, a recipient has the burden of proving that compliance with para- graph (a) or (c) of this section would re- sult in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a recipient or their designee after considering all re- sources available for use in the funding and operation of the program or activ- ity and must be accompanied by a wri must be made by the head of a recipient or their designee after considering all re- sources available for use in the funding and operation of the program or activ- ity and must be accompanied by a writ- ten statement of the reasons for reach- ing that conclusion. If an action would result in such an alteration or such burdens, a recipient shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individ- uals with disabilities receive the bene- fits or services provided by the recipi- ent. (f) Diagnostically required structural or operational characteristics. A recipient meets its burden of proving that com- pliance with paragraph (a) or (c) of this section would result in a fundamental alteration under paragraph (e) of this section if it demonstrates that compli- ance with paragraph (a) or (c) would alter diagnostically required structural or operational characteristics of the equipment, and prevent the use of the equipment for its intended diagnostic purpose. This paragraph (f) does not ex- cuse compliance with other technical requirements where compliance with those requirements does not prevent the use of the equi ent for its intended diagnostic purpose. This paragraph (f) does not ex- cuse compliance with other technical requirements where compliance with those requirements does not prevent the use of the equipment for its diag- nostic purpose. § 84.93 Existing medical diagnostic equipment. (a) Accessibility. A recipient shall op- erate each program or activity offered through or with the use of MDE so that the program or activity, in its en- tirety, is readily accessible to and usa- ble by individuals with disabilities. This paragraph (a) does not— (1) Necessarily require a recipient to make each of its existing pieces of medical diagnostic equipment acces- sible to and usable by individuals with disabilities; or (2) Require a recipient 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 personnel of the recipient believe that the proposed action would fundamen- tally alter the program or activity or would result in undue financial and ad- ministrative burdens, a recipient has the burden of proving that compliance with this paragraph (a) wou n would fundamen- tally alter the program or activity or would result in undue financial and ad- ministrative burdens, a recipient has the burden of proving that compliance with this paragraph (a) would result in such alteration or burdens. The deci- sion that compliance would result in such alteration or burdens must be made by the head of the recipient or their designee after considering all re- sources available for use in the funding and operation of the program or activ- ity and must be accompanied by a writ- ten statement of the reasons for reach- ing that conclusion. If an action would result in such an alteration or such burdens, the recipient shall take any other action that would not result in such an alteration or such burdens but 498 Dept. of Health and Human Services Pt. 84, App. A would nevertheless ensure that individ- uals with disabilities receive the bene- fits or services provided by the recipi- ent. (3) A recipient meets its burden of proving that compliance with this paragraph (a) would result in a funda- mental alteration under paragraph (a)(2) of this section if it demonstrates that compliance with this paragraph (a) would alter diagnostically required struct is paragraph (a) would result in a funda- mental alteration under paragraph (a)(2) of this section if it demonstrates that compliance with this paragraph (a) would alter diagnostically required structural or operational characteris- tics of the equipment, and prevent the use of the equipment for its intended diagnostic purpose. (b) Methods. A recipient may comply with the requirements of this section through such means as reassignment of services to alternate accessible loca- tions, home visits, delivery of services at alternate accessible sites, purchase, lease, or other acquisition of accessible MDE, or any other methods that result in making its programs or activities readily accessible to and usable by in- dividuals with disabilities. A recipient is not required to purchase, lease, or otherwise acquire accessible medical diagnostic equipment where other methods are effective in achieving compliance with this section. In choos- ing among available methods for meet- ing the requirements of this section, a recipient shall give priority to those methods that offer programs and ac- tivities to qualified individuals with disabilities in the most integrated set- ting appropriate. § 84 nts of this section, a recipient shall give priority to those methods that offer programs and ac- tivities to qualified individuals with disabilities in the most integrated set- ting appropriate. § 84.94 Qualified staff. Recipients must ensure their staff are able to successfully operate acces- sible MDE, assist with transfers and positioning of individuals with disabil- ities, and carry out the program access obligation regarding existing MDE. §§ 84.95–84.97 [Reserved] Subpart K—Procedures § 84.98 Procedures. The procedural provisions applicable to title VI of the Civil Rights Act of 1964 apply to this part. These proce- dures are found in 45 CFR 80.6 through 80.10 and 45 CFR part 81. [89 FR 40195, May 9, 2024] APPENDIX A TO PART 84—ANALYSIS OF FINAL REGULATION SUBPART A—GENERAL PROVISIONS Definitions—1. ‘‘Recipient’’. Section 84.23 contains definitions used throughout the regulation. Most of the comments con- cerning § 84.3(f), which contains the defini- tion of ‘‘recipient,’’ commended the inclu- sion of recipient whose sole source of Federal financial assistance is Medicaid. The Sec- retary believes that such Medicaid providers should be regarded as recipients under the statute ded the inclu- sion of recipient whose sole source of Federal financial assistance is Medicaid. The Sec- retary believes that such Medicaid providers should be regarded as recipients under the statute and the regulation and should be held individually responsible for admin- istering services in a nondiscriminatory fashion. Accordingly, § 84.3(f) has not been changed. Small Medicaid providers, however, are exempt from some of the regulation’s ad- ministrative provisions (those that apply to recipients with fifteen or more employees). And such recipients will be permitted to refer patients to accessible facilities in cer- tain limited circumstances under revised § 84.22(b). The Secretary recognizes the dif- ficulties involved in Federal enforcement of this regulation with respect to thousands of individual Medicaid providers. As in the case of title VI of the Civil Rights Act of 1964, the Office for Civil Rights will concentrate its compliance efforts on the state Medicaid agencies and will look primarily to them to ensure compliance by individual providers. One other comment requested that the reg- ulation specify that nonpublic elementary and secondary schools that are not otherwis ill look primarily to them to ensure compliance by individual providers. One other comment requested that the reg- ulation 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 cer- tain federally funded programs. The Sec- retary believes it unnecessary to amend the regulation in this regard, because almost identical language in the Department’s regu- lations implementing title VI and Title IX of the Education Amendments of 1972 has con- sistently been interpreted so as not to render such schools recipients. These schools, how- ever, are indirectly subject to the sub- stantive requirements of this regulation through the application of § 84.4(b)(iv), which prohibits recipients from assisting agencies that discriminate on the basis of handicap in providing services to beneficiairies of the re- cipients’ programs. 2. ‘‘Federal financial assistance’’. In § 84.3(h), defining Federal financial assistance, a clari- fying change has been made: procurement contracts are specifically excluded. They are covered, however, by the Department of La- bor’s regulation under section 503. ral financial assistance, a clari- fying change has been made: procurement contracts are specifically excluded. They are covered, however, by the Department of La- bor’s regulation under section 503. The De- partment has never considered such con- tracts to be contracts of assistance; the ex- plicit exemption has been added only to avoid possible confusion. 499 Pt. 84, App. A 45 CFR Subtitle A (10–1–24 Edition) 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 stat- utory 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 fi- nancial assistance, than other civil rights statutes. Indeed, Congress directed that sec- tion 504 be implemented in the same manner as titles VI and IX. In view of the long estab- lished exemption of contracts of insurance or guaranty under title VI, we think it unlikely that Congress intended section 5 lemented in the same manner as titles VI and IX. In view of the long estab- lished 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 84.3(j), which defines the class of persons protected under the regulation, has not been substan- tially changed. The definition of handi- capped person in paragraph (j)(1) conforms to the statutory definition of handicapped per- son 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 per- son who has a physical or mental impair- ment that substantially limits one or more major life activities. Paragraph (j)(2)(i) fur- ther defines physical or mental impairments. The definition does not set forth a list of spe- cific diseases and conditions that constitute physical or mental impairments because of the difficulty of ensuring the comprehensive- ness of any such list. The term includes, however, such diseases and conditions as or- thopedic, visual, speech, and heari r mental impairments because of the difficulty of ensuring the comprehensive- ness of any such list. The term includes, however, such diseases and conditions as or- thopedic, visual, speech, and hearing impair- ments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emo- tional 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 sub- stantial limitation of one or more major life activities. Several comments observed the lack of any definition in the proposed regula- tion of the phrase ‘‘substantially limits.’’ The Department does not believe that a defi- nition of this term is possible at this time. A related issue raised by several comments is whether the definition of handicapped per- son is unreasonably broad. Comments sug- gested narrowing the definition in various ways. the most common recommendation was that only ‘‘traditional’’ handicaps be covered. The Department continues to be- lieve, however, that it has no flexibility with owing the definition in various ways. the most common recommendation was that only ‘‘traditional’’ handicaps be covered. The Department continues to be- lieve, however, that it has no flexibility within the statutory definition to limit the term to persons who have those severe, per- manent, or progressive conditions that are most commonly regarded as handicaps. The Department intends, however, to give par- ticular attention in its enforcement of sec- tion 504 to eliminating discrimination against persons with the severe handicaps that were the focus of concern in the Reha- bilitation Act of 1973. The definition of handicapped person also includes specific limitations on what persons are classified as handicapped under the regu- lation. The first of the three parts of the def- inition specifies that only physical and men- tal handicaps are included. Thus, environ- mental, 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 f 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 disabil- ities. The Department will interpret the term as it is used in section 602 of the Edu- cation of the Handicapped Act, as amended. Paragraph (15) of section 602 uses the term ‘‘specific learning disabilities’’ to describe such conditions as perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Paragraph (j)(2)(i) has been shortened, but not substantively changed, by the deletion of clause (C), which made explicit the inclusion of any condition which is mental or physical but whose precise nature is not at present known. Clauses (A) and (B) clearly com- prehend such conditions. The second part of the statutory and regu- latory definition of handicapped person in- cludes any person who has a record of a phys- ical or mental impairment that substan- tially limits a major life activity. Under the definition of ‘‘record’’ in paragraph (j)(2)(iii), pers person in- cludes any person who has a record of a phys- ical or mental impairment that substan- tially 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 men- tal or emotional illness, heart disease, or cancer; of the second group, persons who have been misclassified as mentally re- tarded. The third part of the statutory and regu- latory definition of handicapped person in- cludes any person who is regarded as having a physical or mental impairment that sub- stantially limits one or more major life ac- tivities. 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 defini- tion also includes some persons who might not ordinarily be considered handicapped, 500 Dept. of Health and Human Servi the statutory definition, such as persons with a limp. This part of the defini- tion also includes some persons who might not ordinarily be considered handicapped, 500 Dept. of Health and Human Services Pt. 84, App. A such as persons with disfiguring scars, as well as persons who have no physical or men- tal impairment but are treated by a recipi- ent 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 handi- capped 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 in- cluding 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 alco- holics and drug addicts presents sensitive and difficult questions that must be taken into account in interpretation and enf his question and recognizes that application of section 504 to active alco- holics and drug addicts presents sensitive and difficult questions that must be taken into account in interpretation and enforce- ment. The Secretary has carefully examined the issue and has obtained a legal opinion from the Attorney General. That opinion con- cludes that drug addiction and alcoholism are ‘‘physical or mental impairments’’ with- in the meaning of section 7(6) of the Reha- bilitation 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 author- ity to exclude these conditions from the defi- nition. There is a medical and legal con- sensus 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 ad- diction and alcoholism in enacting section 504, the committees that considered the Re- habilitation Act of 1973 were made aware of the Department’s long-sta us specifically on the problems of drug ad- diction and alcoholism in enacting section 504, the committees that considered the Re- habilitation Act of 1973 were made aware of the Department’s long-standing practice of treating addicts and alcoholics as handi- capped individuals eligible for rehabilitation services under the Vocational Rehabilitation Act. The Secretary wishes to reassure recipi- ents 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 quali- fied 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 oppor- tunities. 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 unsatisfac- tory performance or behavior is related to the person’s drug addiction or alcoholism. In other words, while an e standard of performance and behavior to which it holds others, even if any unsatisfac- tory performance or behavior is related to the person’s drug addiction or alcoholism. In other words, while an alcoholic or drug ad- dict may not be denied services or disquali- fied from employment solely because of his or her condition, the behavioral manifesta- tions of the condition may be taken into ac- count 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 suc- cessful performance of the job, the person need not be provided the employment oppor- tunity 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 appli- cants including drug addicts and alcoholics— past personnel records, absenteeism, disrup- tive, abusive, or dangerous behavior, viola- tions of rules and unsatisfactory work per- formance. Moreover, employers may enforce rules prohibiting the possession or use of al- cohol or drugs in the work-place, provided tha ous behavior, viola- tions of rules and unsatisfactory work per- formance. Moreover, employers may enforce rules prohibiting the possession or use of al- cohol or drugs in the work-place, provided that such rules are enforced against all em- ployees. With respect to services, there is evidence that drug addicts and alcoholics are often de- nied treatment at hospitals for conditions unrelated to their addiction or alcoholism. In addition, some addicts and alcoholics have been denied emergency treatment. These practices have been specifically pro- hibited by section 407 of the Drug Abuse Of- fice and Treatment Act of 1972 (21 U.S.C. 1174) and section 321 of the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (42 U.S.C. 4581), as amended. These statutory provisions are also administered by the De- partment’s Office for Civil Rights and are implemented in § 84.53 of this regulation. With respect to other services, the implica- tions of coverage, of alcoholics and drug ad- dicts are two-fold: first, no person may be ex- cluded from services solely by reason of the presence or history of these conditions; sec- ond, to the extent that the ma ge, of alcoholics and drug ad- dicts are two-fold: first, no person may be ex- cluded from services solely by reason of the presence or history of these conditions; sec- ond, to the extent that the manifestations of the condition prevent the person from meet- ing the basic eligibility requirements of the program or cause substantial interference with the operation of the program, the con- dition may be taken into consideration. Thus, a college may not exclude an addict or alcoholic as a student, on the basis of addic- tion or alcoholism, if the person can success- fully 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 501 Pt. 84, App. A 45 CFR Subtitle A (10–1–24 Edition) 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 al 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.’’ Para- graph (k) of § 84.3 defines the term ‘‘qualified handicapped person.’’ Throughout the regu- lation, this term is used instead of the statu- tory term ‘‘otherwise qualified handicapped person.’’ The Department believes that the omission of the word ‘‘otherwise’’ is nec- essary in order to comport with the intent of the statute because, read literally, ‘‘other- wise’’ qualified handicapped persons include persons who are qualified except for their handicap, rather than in spite of their handi- cap. Under such a literal reading, a blind per- son possessing all the qualifications for driv- ing 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 in- tended to be interchangeable. Section 84.3(k)(1) defines a qualified handi- capped person with respect to employment as a han ther respects, the terms ‘‘qualified’’ and ‘‘otherwise qualified’’ are in- tended to be interchangeable. Section 84.3(k)(1) defines a qualified handi- capped person with respect to employment as a handicapped person who can, with rea- sonable accommodation, perform the essen- tial functions of the job in question. The term ‘‘essential functions’’ does not appear in the corresponding provision of the Depart- ment 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 disquali- fied simply because they may have difficulty in performing tasks that bear only a mar- ginal relationship to a particular job. Fur- ther, we are convinced that inclusion of the phrase is not inconsistent with the Depart- ment of Labor’s application of its definition. Certain commenters urged that the defini- tion of qualified handicapped person be amended so as explicitly to place upon the employer the burden of showing that a par- ticular mental or physical characteristic is is e s urged that the defini- tion of qualified handicapped person be amended so as explicitly to place upon the employer the burden of showing that a par- ticular mental or physical characteristic is is essential. Because the same result achieved by the requirement contained in paragraph (a) of § 84.13, which requires an employer to establish that any selection cri- terion that tends to screen out handicapped persons is job-related, that recommendation has not been followed. Section 84.3(k)(2) (formerly § 84.3(k)(3)) de- fines qualified handicapped person, with re- spect to preschool, elementary, and sec- ondary programs, in terms of age. Several commenters recommended that eligibility for the services be based upon the standard of substantial benefit, rather than age, be- cause of the need of many handicapped chil- dren 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 § 84.6(a)(3), however, persons be- yond the age limits prescri extreme difficulties in administration that would result from the choice of the former standard. Under the remedial action provisions of § 84.6(a)(3), however, persons be- yond the age limits prescribed in § 84.3(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 84.3(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 eli- gible for such services or at which state law mandates the provision of educational serv- ices 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 eligi- ble for assistance under the Education of the Handicapped Act—generally, 3–18 as of Sep- tember 1978, and 3–21 as of September 1980 are incorporated by reference in this para- graph. Section 84.3(k)(3) formerly § 84.3(k)(2)) de- fines qualified handicapped person with re- spect to postsecondary educational pro- grams. As revised, the paragraph means that both academic and technical st ion 84.3(k)(3) formerly § 84.3(k)(2)) de- fines qualified handicapped person with re- spect to postsecondary educational pro- grams. 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 non- academic admissions criteria that are essen- tial to participation in the program in ques- tion. 6. General prohibitions against discrimination. Section 84.4 contains general prohibitions against discrimination applicable to all re- cipients of assistance from this Department. Paragraph (b)(1(i) prohibits the exclusion of qualified handicapped persons from aids, benefits, or services, and paragraph (ii) re- quires that equal opportunity to participate or benefit be provided. Paragraph (iii) re- quires that services provided to handicapped persons be as effective as those provided to the nonhandicapped. In paragraph (iv), dif- ferent or separate services are prohibited ex- cept when necessary to provide equally effec- tive benefits. In this context, the term ‘‘equally effec- tive,’’ defined in paragraph (b)(2), is intended to encompass the concept of equivalent, as opposed to identic ssary to provide equally effec- tive benefits. In this context, the term ‘‘equally effec- tive,’’ defined in paragraph (b)(2), is intended to encompass the concept of equivalent, as opposed to identical, services and to ac- knowledge 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 pro- vision of different programs may sometimes be necessary. For example, a welfare office that uses the telephone for communicating with its clients must provide alternative 502 Dept. of Health and Human Services Pt. 84, App. A modes of communicating with its deaf cli- ents. This standard parallels the one estab- lished under title VI of Civil Rights Act of 1964 with respect to the provision of edu- cational 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 re- sults. It must be emphasized that, although sepa- rate services must be required in some in- sta service need not produce equal results; it merely must afford an equal opportunity to achieve equal re- sults. It must be emphasized that, although sepa- rate services must be required in some in- stances, the provision of unnecessarily sepa- rate or different services is discriminatory. The addition to paragraph (b)(2) of the phrase ‘‘in the most integrated setting ap- propriated to the person’s needs’’ is intended to reinforce this general concept. A new paragraph (b)(3) has also been added to § 84.4, requiring recipients to give qualified handi- capped persons the option of participating in regular programs despite the existence of permissibly separate or different programs. The requirement has been reiterated in §§ 84.38 and 84.47 in connection with physical education and athletics programs. Section 84.4(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 re- cipient to a community recreational group or to a professional or social organization that discriminates against handicapped per p. This section would, for example, prohibit financial support by a re- cipient to a community recreational group or to a professional or social organization that discriminates against handicapped per- sons. Among the criteria to be considered in each case are the substantiality of the rela- tionship between the recipient and the other entity, including financial support by the re- cipient, and whether the other entity’s ac- tivities 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 re- sponse to comment in order to make explicit the prohibition against denying qualified handicapped persons the opportunity to serve on planning and advisory boards re- sponsible for guiding federally assisted pro- grams or activities. Several comments appeared to interpret § 84.4(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 addi- tional buildings at an existing site. Of course, rom 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 addi- tional buildings at an existing site. Of course, any such facilities must be made ac- cessible in accordance with the requirements of § 84.23. 7. Assurances of compliance. Section 84.5(a) requires a recipient to submit to the Direc- tor an assurance that each of its programs and activities receiving or benefiting from Federal financial assistance from this De- partment will be conducted in compliance with this regulation. To facilitate the sub- mission of assurances by thousands of Med- icaid providers, the Department will follow the title VI procedures of accepting, in lieu of assurances, certification on Medicaid vouchers. Many commenters also sought re- lief from the paperwork requirements im- posed by the Department’s enforcement of its various civil rights responsibilities by re- questing 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 Civ ng 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 com- ments urged that the regulation incorporate provision granting beneficiaries a private right of action against recipients under sec- tion 504. To confer such a right is beyond the authority of the executive branch of Govern- ment. 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, § 84.6 requires a re- cipient 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, reinstate- ment of employees and development of a re- medial action plan. Should a recipient required under paragraph (a)(1) include provision of services to persons previously discriminated against, reinstate- ment of employees and development of a re- medial 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 prac- tices had not existed. Paragraphs (a) (1), (2), and (3) have also been amended in response to comments to make plain that, in appro- priate cases, remedial action might be re- quired to redress clear violations of the stat- ute itself that occurred before the effective date of this regulation. 10. Voluntary action. In § 84.6(b), the term ‘‘voluntary action’’ has been substituted fo o redress clear violations of the stat- ute itself that occurred before the effective date of this regulation. 10. Voluntary action. In § 84.6(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 503 Pt. 84, App. A 45 CFR Subtitle A (10–1–24 Edition) paragraph. This provision allows action, be- yond that required by the regulation, to overcome conditions that led to limited par- ticipation 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 re- quire remedial action to overcome effects of prior discriminatory practices regardless of whether there has been an express finding of discrimination. The self-evaluation require- ment 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 handi- capped 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 handi- capped 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 recipi- ents seek the assistance of handicapped per- sons in the self-evaluation process. This paragraph has been further amended to re- quire consultation with handicapped persons or organizations representing them before recipients undertake the policy modifica- tions and remedial steps prescribed in para- graphs (c)(1)(ii) and (iii). Paragraph (c)(2), which sets forth the rec- ordkeeping 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 un- necessary or counterproductive administra- tive 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 con- sulted and a description o ve 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 con- sulted 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 84.7 (for- merly § 84.8) requires recipients with fifteen or more employees to designate an indi- vidual responsible for coordinating its com- pliance efforts and to adopt a grievance pro- cedure. Two changes were made in the sec- tion in response to comment. A general re- quirement that appropriate due process pro- cedures 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 avail- able to unsuccessful applicants for employ- ment or to applicants for admission to col- leges and universities. The regulation does not require that griev- an edures are not required to be made avail- able to unsuccessful applicants for employ- ment or to applicants for admission to col- leges and universities. The regulation does not require that griev- ance procedures be exhausted before recourse is sought from the Department. However, the Secretary believes that it is desirable and ef- ficient in many cases for complainants to seek resolution of their complaints and dis- putes at the local level and therefore encour- ages them to use available grievance proce- dures. A number of comments asked whether compliance with this section or the notice requirements of § 84.8 could be coordinated with comparable action required by the title IX regulation. The Department encourages such efforts. 13. Notice. Section 84.8 (formerly § 84.9) sets forth requirements for dissemination of statements of nondicrimination policy by re- cipients. It is important that both handicapped per- sons and the public at large be aware of the obligations of recipients under section 504. Both the Department and recipients have re- sponsibilities in this regard. Indeed the De- partment intends to undertake a major pub- lic information effort to inform persons of their nder section 504. Both the Department and recipients have re- sponsibilities in this regard. Indeed the De- partment intends to undertake a major pub- lic information effort to inform persons of their rights under section 504 and this regu- lation. In § 84.8 the Department has sought to impose a clear obligation on major recipi- ents to notify beneficiaries and employees of the requirements of section 504, without dic- tating the precise way in which this notice must be given. At the same time, we have avoided imposing requirements on small re- cipients (those with fewer than fifteen em- ployees) that would create unnecessary and counterproductive paper work burdens on them and unduly stretch the enforcement re- sources of the Department. Section 84.8(a), as simplified, requires re- cipients 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 § 84.8(a) has been revised to list possible, rather than required, means of notification. Section 84.8(b) requires recipients to include a notification of their policy of non- discrimination in recruitment and other gen- eral infor ist possible, rather than required, means of notification. Section 84.8(b) requires recipients to include a notification of their policy of non- discrimination in recruitment and other gen- eral information materials. In response to a number of comments, § 84.8 has been revised to delete the requirements of publication in local newspapers, which has proved to be both troublesome and ineffec- tive. Several commenters suggested that no- tification on separate forms be allowed until present stocks of publications and forms are depleted. The final regulation explicitly al- lows this method of compliance. The sepa- rate form should, however, be included with each significant publication or form that is distributed. Former § 84.9(b)(2), which prohibited the use of materials that might give the impres- sion that a recipient excludes qualified handicapped persons from its program, has been deleted. The Department is convinced 504 Dept. of Health and Human Services Pt. 84, App. A by the comments that this provision is un- necessary and difficult to apply. The Depart- ment encourages recipients, however, to in- clude in their recruitment and other general information materials photographs of s that this provision is un- necessary and difficult to apply. The Depart- ment encourages recipients, however, to in- clude in their recruitment and other general information materials photographs of handi- capped persons and ramps and other features of accessible buildings. Under new § 84.9 the Director 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 impos- ing notice or other requirements on par- ticular recipients or classes of small recipi- ents, the Department is prepared to expand the coverage of these sections. 14. Inconsistent State laws. Section 84.10(a) states that compliance with the regulation is not excused by state or local laws limiting the eligibility of qualified handicapped per- sons to receive services or to practice an oc- cupation. 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 opportuni- ties in a particular profession, does not ex- cuse a recipient from complying with the regulation. sis of handicap. Paragraph (b) further points out that the presence of limited employment opportuni- ties in a particular profession, does not ex- cuse 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 that do nonhandicapped lawyers. SUBPART B—EMPLOYMENT PRACTICES Subpart B prescribes requirements for non- discrimination in the employment practices of recipients of Federal financial assistance administered by the Department. This sub- part is consistent with the employment pro- visions of the Department’s regulation im- plementing title IX of the Education Amend- ments of 1972 (45 CFR part 86) and the regula- tion of the Department of Labor under sec- tion 503 of the Rehabilitation Act, which requries certain Federal contractors to take affirmative action in the employment and advancement of qualified handicapped per- sons. 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 ex- cess of $2,500 and are therefore also subject to section 503. 15. also subject to this regulation. In addition, many recipients subject to this regulation receive Federal procurement contracts in ex- cess of $2,500 and are therefore also subject to section 503. 15. Discriminatory practices. Section 84.11 sets forth general provisions with respect to discrimination in employment. A new para- graph (a)(2) has been added to clarify the em- ployment obligations of recipients that re- ceive Federal funds under Part B of the Edu- cation of the Handicapped Act, as amended (EHA). Section 606 of the EHA obligates ele- mentary or secondary school systems that receive EHA funds to take positive steps to employ and advance in employment qualified handicapped persons. This obligation is simi- lar to the nondiscrimination requirement of section 504 but requires recipients to take additional steps to hire and promote handi- capped persons. In enacting section 606 Con- gress chose the words ‘‘positive steps’’ in- stead 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 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 Rehabilita- tion Act of 1973. Paragraph (b) of § 84.11 sets forth the spe- cific aspects of employment covered by the regulation. Paragraph (c) provides that in- consistent provisions of collective bar- gaining agreements do not excuse non- compliance. 16. Reasonable accommodation. The reason- able accommodation requirement of § 84.12 generated a substantial number of com- ments. 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 ad- ministering the requirements of reasonable accommodation. The provision therefore re- mains basically unchanged from the pro- posed regulation. Section 84.12 requires a recipient to make reasonable accommodation to the known physical or mental limitations of a handi- capped applicant or employee unless the re- cipient can demonstrate that the accommo- dation would impose an undue hardship on the operation of its program. Where a handi- tal limitations of a handi- capped applicant or employee unless the re- cipient can demonstrate that the accommo- dation would impose an undue hardship on the operation of its program. Where a handi- capped person is not qualified to perform a particular job, where reasonable accommo- dation does not overcome the effects of a person’s handicap, or where reasonable ac- commodation causes undue hardship to the employer, failure to hire or promote the handicapped person will not be considered discrimination. Section 84.12(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 modi- fication of work schedules, including part- time employment, and job restructuring. Job restructuring may entail shifting non- essential duties to other employees. In other cases, reasonable accommodation may in- clude physical modifications or relocation of particular offices or jobs so that they are in facilities or parts of facilities that are acces- sible to and usable by handicapped persons. If such accommodations would cause undue hardship to th of particular offices or jobs so that they are in facilities or parts of facilities that are acces- sible to and usable by handicapped persons. If such accommodations would cause undue hardship to the employer, they need not be made. Paragraph (c) of this section sets forth the factors that the Office for Civil Rights will consider in determining whether an accom- modation necessary to enable an applicant or employee to perform the duties of a job would impose an undue hardship. The weight 505 Pt. 84, App. A 45 CFR Subtitle A (10–1–24 Edition) given to each of these factors in making the determination as to whether an accommoda- tion constitutes undue hardship will vary de- pending on the facts of a particular situa- tion. Thus, a small day-care center might not be required to expend more than a nomi- nal sum, such as that necessary to equip a telephone for use by a secretary with im- paired hearing, but a large school district might be required to make available a teach- er’s aide to a blind applicant for a teaching job. Further, it might be considered reason- able to require a state welfare agency to ac- commodate a deaf employee by providing an interpreter, while it would const a blind applicant for a teaching job. Further, it might be considered reason- able to require a state welfare agency to ac- commodate a deaf employee by providing an interpreter, while it would constitute an undue hardship to impose that requirement on a provider of foster home care services. The reasonable accommodation standard in § 84.12 is similar to the obligation imposed upon Federal contractors in the regulation implementing section 503 of the Rehabilita- tion Act of 1973, administered by the Depart- ment of Labor. Although the wording of the reasonable accommodation provisions of the two regulations is not identical, the obliga- tion 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 fac- tors listed in paragraph (c) instead of the ‘‘business necessity’’ standard of the Labor regulation because that term seemed inap- propriate to the nature of the programs oper- ated by the majority of institutions subject to this regulation, e.g., public school sys- tems, hospitals, colleges and universities, nursing homes, day-care centers, and welfare offices. The factors listed in he majority of institutions subject to this regulation, e.g., public school sys- tems, hospitals, colleges and universities, nursing homes, day-care centers, and welfare offices. The factors listed in paragraph (c) are intended to make the rationale under- lying the business necessity standard appli- cable to an understandable by recipients of HHS funds. 17. Tests and selection criteria. Revised § 84.13(a) prohibits employers from using test or other selection criteria that screen out or tend to screen out handicapped persons un- less 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 Director 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 employ- er’s obligation to show that employment cri- teria and qualifications relating to handicap were necessary. This requirement was changed because the small number of h was required to trigger an employ- er’s obligation to show that employment cri- teria and qualifications relating to handicap were necessary. This requirement was changed because the small number of handi- capped persons taking tests would make sta- tistical showings of ‘‘disproportionate, ad- verse 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 pre- dictive validity studies sufficient to dem- onstrate that a test or criterion is job-re- lated. In addition, § 84.13(a) has been revised to place the burden on the Director, rather than the recipient, to identify alternate tests. Section 84.13(b) requires that a recipient take into account that some tests and cri- teria depend upon sensory, manual, or speak- ing skills that may not themselves be nec- essary to the job in question but that may make the handicapped pe nt take into account that some tests and cri- teria depend upon sensory, manual, or speak- ing skills that may not themselves be nec- essary to the job in question but that may make the handicapped person unable to pass the test. The recipient must select and ad- minister 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 per- form manual tasks, except, of course, where such skills are the factors that the test pur- ports to measure. For example, a person with a speech impediment may be perfectly quali- fied 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 sat- isfactory manner. The test results will not, therefore, predict job performance but in- stead will reflect impaired speech. 18. Preemployment inquiries. Section 84.14, concerning preemployment inquiries, gen- erated a large number of comments. Com- menters representing handicapped persons strongly favored a ban on preemployment in- quiries on the ground that such inquiries are often used to dis iries, gen- erated a large number of comments. Com- menters representing handicapped persons strongly favored a ban on preemployment in- quiries on the ground that such inquiries are often used to discriminate against handi- capped 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 handi- capping condition, and accommodations that might required. The Secretary has concluded that a gen- eral 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 ex- ample, an employer may not ask on an em- ployment form if an applicant is visually im- paired but may ask if the person has a cur- rent 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 ense (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 506 Dept. of Health and Human Services Pt. 84, App. A applicant is an epileptic but may ask wheth- er the person can perform a particular job without endangering other employees. Section 84.14(B) allows preemployment in- quiries 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 Re- habilitation 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 exami- nations are administered to all employees in a nondiscriminatory manner and the results are treated on a confidential basis. 19. Specific acts of Discrimination. Sections 84.15 (recruitment), 84.16 (compensation) administered to all employees in a nondiscriminatory manner and the results are treated on a confidential basis. 19. Specific acts of Discrimination. Sections 84.15 (recruitment), 84.16 (compensation), 84.17 (job classification and structure) and 84.18 (fringe benefits) have been deleted from the regulation as unnecessarily duplicative of § 84.11 (discrimination prohibited). The de- letion 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. Proposed § 84.18, concerning fringe benefits, had allowed for differences in benefits or contributions between handicapped and non- handicapped persons in situations only where such differences could be justified on an actuarial basis. Section 84.11 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 dif- ferences in benefits ctuarial differences. The Department believes that currently available data and experience do not demonstrate a basis for promulgating a regulation specifically allowing for dif- ferences in benefits or contributions. SUBPART C—PROGRAM ACCESSIBILITY In general, subpart C prohibits the exclu- sion of qualified handicapped persons from federally assisted programs or activities be- cause a recipient’s facilities are inaccessible or unusable. 20. Existing facilities. Section 84.22 main- tains the same standard for nondiscrimina- tion in regard to existing facilities as was in- cluded in the proposed regulation. The sec- tion states that a recipient’s program or ac- tivity, when viewed in its entirety, must be readily accessible to and usable by handi- capped 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 re- cipient’s program or activity may be achieved by a number of means, including re- design of equipment, reassignment of classes or other services to accessible buildings, and making aides available to beneficiaries. In c