45 CFR Parts 160 & 164 (CFR Annual Edition) of the policy of non- discrimination described in paragraph (a) of this section, and require such representatives to adhere to such pol- icy. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) Subpart B—Coverage § 86.11 Application. Except as provided in this subpart, this part 86 applies to every recipient and to the education program or activ- ity operated by such recipient which receives Federal financial assistance. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) [40 FR 24137, June 4, 1975, as amended at 70 FR 24321, May 9, 2005] § 86.12 Educational institutions con- trolled by religious organizations. (a) Application. This part does not apply to an educational institution which is controlled by a religious orga- nization to the extent application of this part would not be consistent with the religious tenets of such organiza- tion. (b) Exemption. An educational institu- tion which wishes to claim the exemp- tion set forth in paragraph (a) of this section, shall do so by submitting in writing to the Director a statement by the highest ranking official of the in- stitution, identifying the provisions o mp- tion set forth in paragraph (a) of this section, shall do so by submitting in writing to the Director a statement by the highest ranking official of the in- stitution, identifying the provisions of this part which conflict with a specific tenet of the religious organization. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.13 Military and merchant marine educational institutions. This part does not apply to an edu- cational institution whose primary purpose is the training of individuals 540 Dept. of Health and Human Services § 86.17 for a military service of the United States or for the merchant marine. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.14 Membership practices of cer- tain organizations. (a) Social fraternities and sororities. This part does not apply to the mem- bership practices of social fraternities and sororities which are exempt from taxation under section 501(a) of the In- ternal Revenue Code of 1954, the active membership of which consists pri- marily of students in attendance at in- stitutions of higher education. (b) YMCA, YWCA, Girl Scouts, Boy Scouts and Camp Fire ternal Revenue Code of 1954, the active membership of which consists pri- marily of students in attendance at in- stitutions of higher education. (b) YMCA, YWCA, Girl Scouts, Boy Scouts and Camp Fire Girls. This part does not apply to the membership prac- tices of the Young Men’s Christian As- sociation, the Young Women’s Chris- tian Association, the Girl Scouts, the Boy Scouts and Camp Fire Girls. (c) Voluntary youth service organiza- tions. This part does not apply to the membership practices of voluntary youth service organizations which are exempt from taxation under section 501(a) of the Internal Revenue Code of 1954 and the membership of which has been traditionally limited to members of one sex and principally to persons of less than nineteen years of age. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682; sec. 3(a) of Pub. L. 93–568, 88 Stat. 1862 amending sec. 901) § 86.15 Admissions. (a) Admissions to educational insti- tutions prior to June 24, 1973, are not covered by this part. (b) Administratively separate units. For the purposes only of this section, §§ 86.16 and 86.17, and subpart C, each administratively separate unit shall be une 24, 1973, are not covered by this part. (b) Administratively separate units. For the purposes only of this section, §§ 86.16 and 86.17, and subpart C, each administratively separate unit shall be deemed to be an educational institu- tion. (c) Application of subpart C. Except as provided in paragraphs (d) and (e) of this section, subpart C applies to each recipient. A recipient to which subpart C applies shall not discriminate on the basis of sex in admission or recruit- ment in violation of that subpart. (d) Educational institutions. Except as provided in paragraph (e) of this sec- tion as to recipients which are edu- cational institutions, Subpart C applies only to institutions of vocational edu- cation, professional education, grad- uate higher education, and public insti- tutions of undergraduate higher edu- cation. (e) Public institutions of undergraduate higher education. Subpart C does not apply to any public institution of un- dergraduate higher education which traditionally and continually from its establishment has had a policy of ad- mitting only students of one sex. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) [40 FR 24128, and continually from its establishment has had a policy of ad- mitting only students of one sex. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) [40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975] § 86.16 Educational institutions eligi- ble to submit transition plans. (a) Application. This section applies to each educational institution to which subpart C applies which: (1) Admitted only students of one sex as regular students as of June 23, 1972; or (2) Admitted only students of one sex as regular students as of June 23, 1965, but thereafter admitted as regular stu- dents, students of the sex not admitted prior to June 23, 1965. (b) Provision for transition plans. An educational institution to which this section applies shall not discriminate on the basis of sex in admission or re- cruitment in violation of subpart C un- less it is carrying out a transition plan approved by the United States Com- missioner of Education as described in § 86.17, which plan provides for the elimination of such discrimination by the earliest practicable date but in no event later than June 23, 1979. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 37 17, which plan provides for the elimination of such discrimination by the earliest practicable date but in no event later than June 23, 1979. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.17 Transition plans. (a) Submission of plans. An institution to which § 86.16 applies and which is composed of more than one administra- tively separate unit may submit either a single transition plan applicable to all such units, or a separate transition plan applicable to each such unit. (b) Content of plans. In order to be ap- proved by the United States Commis- sioner of Education, a transition plan shall: 541 § 86.18 45 CFR Subtitle A (10–1–24 Edition) (1) State the name, address, and Fed- eral Interagency Committee on Edu- cation (FICE) Code of the educational institution submitting such plan, the administratively separate units to which the plan is applicable, and the name, address, and telephone number of the person to whom questions con- cerning the plan may be addressed. The person who submits the plan shall be the chief administrator or president of the institution, or another individual legally authorized to bind the institu- tion to all a the plan may be addressed. The person who submits the plan shall be the chief administrator or president of the institution, or another individual legally authorized to bind the institu- tion to all actions set forth in the plan. (2) State whether the educational in- stitution or administratively separate unit admits students of both sexes, as regular students and, if so, when it began to do so. (3) Identify and describe with respect to the educational institution or ad- ministratively separate unit any obsta- cles to admitting students without dis- crimination on the basis of sex. (4) Describe in detail the steps nec- essary to eliminate as soon as prac- ticable each obstacle so identified and indicate the schedule for taking these steps and the individual directly re- sponsible for their implementation. (5) Include estimates of the number of students, by sex, expected to apply for, be admitted to, and enter each class during the period covered by the plan. (c) Nondiscrimination. No policy or practice of a recipient to which § 86.16 applies shall result in treatment of ap- plicants to or students of such recipi- ent in violation of Subpart C unless such treatment is necessitated b olicy or practice of a recipient to which § 86.16 applies shall result in treatment of ap- plicants to or students of such recipi- ent in violation of Subpart C unless such treatment is necessitated by an obstacle identified in paragraph (b)(3) of this section and a schedule for elimi- nating that obstacle has been provided as required by paragraph (b)(4) of this section. (d) Effects of past exclusion. To over- come the effects of past exclusion of students on the basis of sex, each edu- cational institution to which § 86.16 ap- plies shall include in its transition plan, and shall implement, specific steps designed to encourage individuals of the previously excluded sex to apply for admission to such institution. Such steps shall include instituting recruit- ment programs which emphasize the institution’s commitment to enrolling students of the sex previously ex- cluded. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) [40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975] § 86.18 Amendments to conform to statutory exemptions. (a) Nothing in this part shall be con- strued to force or require any indi- vidual or hospital or any other institu- 40 FR 39506, Aug. 28, 1975] § 86.18 Amendments to conform to statutory exemptions. (a) Nothing in this part shall be con- strued to force or require any indi- vidual or hospital or any other institu- tion, program, or activity receiving Federal funds to perform or pay for an abortion. (b) Nothing in this part shall be con- strued to require or prohibit any per- son, or public or private entity, to pro- vide or pay for any benefit or service, including the use of facilities, related to an abortion. Nothing in the pre- ceding sentence shall be construed to permit a penalty to be imposed on any person or individual because such per- son or individual is seeking or has re- ceived any benefit or service related to a legal abortion. (c) This part shall be construed con- sistently with, as applicable, the First Amendment to the Constitution, Title IX’s religious exemptions (20 U.S.C. 1681(a)(3) and 1687(4)), the Religious Freedom Restoration Act (42 U.S.C. 2000b et seq.), and provisions related to abortion in the Church Amendments (42 U.S.C. 300a–7), the Coats-Snowe Amendment (42 U.S.C. 238n), section 1303 of the Patient Protection and Af- fordable Care Act (42 U.S.C. 18023), and appropr ted to abortion in the Church Amendments (42 U.S.C. 300a–7), the Coats-Snowe Amendment (42 U.S.C. 238n), section 1303 of the Patient Protection and Af- fordable Care Act (42 U.S.C. 18023), and appropriation rider provisions relating to abortion, to the extent they remain in effect or applicable, such as the Hyde Amendment (e.g., Consolidated Appropriations Act, 2019, Pub. L. 115– 245, Div. B, secs. 506–07), the Helms Amendment (e.g., Continuing Appro- priations Act, 2019, Pub. L. 116–6, Div. F, Title III), and the Weldon Amend- ment (e.g., Consolidated Appropriations Act, 2019, Pub. L. 115–245, Div. B, sec. 507(d)). [85 FR 37243, June 19, 2020] 542 Dept. of Health and Human Services § 86.23 §§ 86.19–86.20 [Reserved] Subpart C—Discrimination on the Basis of Sex in Admission and Recruitment Prohibited § 86.21 Admission. (a) General. No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admis- sion, by any recipient to which this subpart applies, except as provided in §§ 86.16 and 86.17. (b) Specific prohibitions. (1) In deter- mining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a re- c except as provided in §§ 86.16 and 86.17. (b) Specific prohibitions. (1) In deter- mining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a re- cipient to which this subpart applies shall not: (i) Give preference to one person over another on the basis of sex, by ranking applicants separately on such basis, or otherwise; (ii) Apply numerical limitations upon the number or proportion of persons of either sex who may be admitted; or (iii) Otherwise treat one individual differently from another on the basis of sex. (2) A recipient shall not administer or operate any test or other criterion for admission which has a dispropor- tionately adverse effect on persons on the basis of sex unless the use of such test or criterion is shown to predict validly success in the education pro- gram or activity in question and alter- native tests or criteria which do not have such a disproportionately adverse effect are shown to be unavailable. (c) Prohibitions relating to marital or parental status. In determining whether a person satisfies any policy or cri- terion for admission, or in making any offer of admission, a recipient to which this sub ohibitions relating to marital or parental status. In determining whether a person satisfies any policy or cri- terion for admission, or in making any offer of admission, a recipient to which this subpart applies: (1) Shall not apply any rule con- cerning the actual or potential paren- tal, family, or marital status of a stu- dent or applicant which treats persons differently on the basis of sex; (2) Shall not discriminate against or exclude any person on the basis of pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice which so discriminates or excludes; (3) Shall treat disabilities related to pregnancy, childbirth, termination of pregnancy, or recovery therefrom in the same manner and under the same policies as any other temporary dis- ability or physical condition; and (4) Shall not make pre-admission in- quiry as to the marital status of an ap- plicant for admission, including wheth- er such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ A recipient may make pre-admission inquiry as to the sex of an applicant for admision, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquir rs.’’ A recipient may make pre-admission inquiry as to the sex of an applicant for admision, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with dis- crimination prohibited by this part. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.22 Preference in admission. A recipient to which this subpart ap- plies shall not give preference to appli- cants for admission, on the basis of at- tendance at any educational institu- tion or other school or entity which ad- mits as students or predominantly members of one sex, if the giving of such preference has the effect of dis- criminating on the basis of sex in vio- lation of this subpart. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.23 Recruitment. (a) Nondiscriminatory recruitment. A recipient to which this subpart applies shall not discriminate on the basis of sex in the recruitment and admission of students. A recipient may be re- quired to undertake additional recruit- ment efforts for one sex as remedial ac- tion pursuant to § 86.3(a), and may choose to under n the recruitment and admission of students. A recipient may be re- quired to undertake additional recruit- ment efforts for one sex as remedial ac- tion pursuant to § 86.3(a), and may choose to undertake such efforts as af- firmative action pursuant to § 86.3(b). (b) Recruitment at certain institutions. A recipient to which this subpart ap- plies shall not recruit primarily or ex- clusively at educational institutions, schools or entities which admit as stu- dents only or predominantly members of one sex, if such actions have the ef- fect of discriminating on the basis of sex in violation of this subpart. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) 543 §§ 86.24–86.30 45 CFR Subtitle A (10–1–24 Edition) §§ 86.24–86.30 [Reserved] Subpart D—Discrimination on the Basis of Sex in Education Pro- grams or Activities Prohibited § 86.31 Education programs or activi- ties. (a) General. Except as provided else- where in this part, no person shall, on the basis of sex, be excluded from par- ticipation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, re- search, occupational training, or other educ he basis of sex, be excluded from par- ticipation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, re- search, occupational training, or other education program or activity operated by a recipient which receives Federal financial assistance. This subpart does not apply to actions of a recipient in connection with admission of its stu- dents to an education program or ac- tivity of (1) a recipient to which Sub- part C does not apply, or (2) an entity, not a recipient, to which Subpart C would not apply if the entity were a re- cipient. (b) Specific prohibitions. Except as pro- vided in this subsection, in providing any aid, benefit, or service to a stu- dent, a recipient shall not, on the basis of sex: (1) Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service; (2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner; (3) Deny any person any such aid, benefit, or service; (4) Subject any person to separate or different rules of behavior, sanctions, or other treatment; ( benefits, or services in a different manner; (3) Deny any person any such aid, benefit, or service; (4) Subject any person to separate or different rules of behavior, sanctions, or other treatment; (5) Apply any rule concerning the domicile or residence of a student or applicant, including eligibility for in- State fees and tuition; (6) Aid or perpetuate discrimination against any person by providing sig- nificant assistance to any agency, or- ganization, or person which discrimi- nates on the basis of sex in providing any aid, benefit or service to students or employees; (7) Otherwise limit any person in the enjoyment of any right, privilege, ad- vantage, or opportunity. (c) Assistance administered by a recipi- ent educational institution to study at a foreign institution. A recipient edu- cational institution may administer or assist in the administration of scholar- ships, fellowships, or other awards es- tablished by foreign or domestic wills, trusts, or similar legal instruments, or by acts of foreign governments and re- stricted to members of one sex, which are designed to provide opportunities to study abroad, and which are award- ed to students who are already matric- ulat or by acts of foreign governments and re- stricted to members of one sex, which are designed to provide opportunities to study abroad, and which are award- ed to students who are already matric- ulating at or who are graduates of the recipient institution; Provided, a recipi- ent educational institution which ad- ministers or assists in the administra- tion of such scholarships, fellowship, or other awards which are restricted to members of one sex provides, or other- wise makes available reasonable oppor- tunities for similar studies for mem- bers of the other sex. Such opportuni- ties may be derived from either domes- tic or foreign sources. (d) Aid, benefits, or services not pro- vided by recipient. (1) This paragraph applies to any recipient which requires participation by any applicant, stu- dent, or employee in any education program or activity not operated whol- ly by such recipient, or which facili- tates, permits, or considers such par- ticipation as part of or equivalent to an education program or activity oper- ated by such recipient, including par- ticipation in educational consortia and cooperative employment and student- teaching assignments. (2) Such recipient; (i) an education program or activity oper- ated by such recipient, including par- ticipation in educational consortia and cooperative employment and student- teaching assignments. (2) Such recipient; (i) Shall develop and implement a procedure designed to assure itself that the operator or sponsor of such other education program or activity takes no action affecting any applicant, student, or employee of such recipient which this part would prohibit such recipient from taking; and (ii) Shall not facilitate, require, per- mit, or consider such participation if such action occurs. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) [40 FR 24137, June 4, 1975, as amended at 70 FR 24321, May 9, 2005; 85 FR 37244, June 19, 2020] 544 Dept. of Health and Human Services § 86.34 § 86.32 Housing. § 86.34 Access to course offerings. (a) Generally. A recipient shall not, on the basis of sex, apply different rules or regulations, impose different fees or requirements, or offer different services or benefits related to housing, except as provided in this section (in- cluding housing provided only to mar- ried students). (b) Housing provided by recipient. (1) A rec , or offer different services or benefits related to housing, except as provided in this section (in- cluding housing provided only to mar- ried students). (b) Housing provided by recipient. (1) A recipient may provide separate housing on the basis of sex. (2) Housing provided by a recipient to students of one sex, when compared to that provided to students of the other sex, shall be as a whole: (i) Proportionate in quantity to the number of students of that sex apply- ing for such housing; and (ii) Comparable in quality and cost to the student. (c) Other housing. (1) A recipient shall not, on the basis of sex, administer dif- ferent policies or practices concerning occupancy by its students of housing other than provided by such recipient. (2) A recipient which, through solici- tation, listing, approval of housing, or otherwise, assists any agency, organi- zation, or person in making housing available to any of its students, shall take such reasonable action as may be necessary to assure itself that such housing as is provided to students of one sex, when compared to that pro- vided to students of the other sex, is as a whole: (i) Proportionate in quantity and (ii) comparable in q ure itself that such housing as is provided to students of one sex, when compared to that pro- vided to students of the other sex, is as a whole: (i) Proportionate in quantity and (ii) comparable in quality and cost to the student. A recipient may render such assistance to any agency, organi- zation, or person which provides all or part of such housing to students only of one sex. (Secs. 901, 902, 907, Education Amendments of 1972, 86 Stat. 373, 374, 375; 20 U.S.C. 1681, 1682, 1686) § 86.33 Comparable facilities. A recipient may provide separate toi- let, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities pro- vided for students of the other sex. A recipient shall not provide any course or otherwise carry out any of its education program or activity sepa- rately on the basis of sex, or require or refuse participation therein by any of its students on such basis, including health, physical education, industrial, business, vocational, technical, home economics, music, and adult education courses. (a) With respect to classes and activi- ties in physical education at the ele- mentary school ducation, industrial, business, vocational, technical, home economics, music, and adult education courses. (a) With respect to classes and activi- ties in physical education at the ele- mentary school level, the recipient shall comply fully with this section as expeditiously as possible but in no event later than one year from the ef- fective date of this regulation. With re- spect to physical education classes and activities at the secondary and post- secondary levels, the recipient shall comply fully with this section as expe- ditiously as possible but in no event later than three years from the effec- tive date of this regulation. (b) This section does not prohibit grouping of students in physical edu- cation classes and activities by ability as assessed by objective standards of individual performance developed and applied without regard to sex. (c) This section does not prohibit sep- aration of students by sex within phys- ical education classes or activities dur- ing participation in wrestling, boxing, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily con- tact. (d) Where use of a single standard of measuring skill n in wrestling, boxing, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily con- tact. (d) Where use of a single standard of measuring skill or progress in a phys- ical education class has an adverse ef- fect on members of one sex, the recipi- ent shall use appropriate standards which do not have such effect. (e) Portions of classes in elementary and secondary schools which deal ex- clusively with human sexuality may be conducted in separate sessions for boys and girls. (f) Recipients may make require- ments based on vocal range or quality which may result in a chorus or cho- ruses of one or predominantly one sex. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374) (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) 545 § 86.35 45 CFR Subtitle A (10–1–24 Edition) § 86.35 Access to schools operated by L.E.A.s. A recipient which is a local edu- cational agency shall not, on the basis of sex, exclude any person from admis- sion to: (a) Any institution of vocational edu- cation operated by such recipient; or (b) Any other school or educational unit operated by such recipient, u asis of sex, exclude any person from admis- sion to: (a) Any institution of vocational edu- cation operated by such recipient; or (b) Any other school or educational unit operated by such recipient, unless such recipient otherwise makes avail- able to such person, pursuant to the same policies and criteria of admission, courses, services, and facilities com- parable to each course, service, and fa- cility offered in or through such schools. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.36 Counseling and use of ap- praisal and counseling materials. (a) Counseling. A recipient shall not discriminate against any person on the basis of sex in the counseling or guid- ance of students or applicants for ad- mission. (b) Use of appraisal and counseling ma- terials. A recipient which uses testing or other materials for appraising or counseling students shall not use dif- ferent materials for students on the basis of their sex or use materials which permit or require different treat- ment of students on such basis unless such different materials cover the same occupations and interest areas and the use of such different materials is shown to be permit or require different treat- ment of students on such basis unless such different materials cover the same occupations and interest areas and the use of such different materials is shown to be essential to eliminate sex bias. Recipients shall develop and use internal procedures for ensuring that such materials do not discrimi- nate on the basis of sex. Where the use of a counseling test or other instru- ment results in a substantially dis- proportionate number of members of one sex in any particular course of study or classification, the recipient shall take such action as is necessary to assure itself that such disproportion is not the result of discrimination in the instrument or its application. (c) Disproportion in classes. Where a recipient finds that a particular class contains a substantially dispropor- tionate number of individuals of one sex, the recipient shall take such ac- tion as is necessary to assure itself that such disproportion is not the re- sult of discrimination on the basis of sex in counseling or appraisal mate- rials or by counselors. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.37 Financial assistance. tion on the basis of sex in counseling or appraisal mate- rials or by counselors. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.37 Financial assistance. (a) General. Except as provided in paragraphs (b) and (c) of this section, in providing financial assistance to any of its students, a recipient shall not: (1) On the basis of sex, provide different amount or types of such assistance, limit eligibility for such assistance which is of any particular type or source, apply different criteria, or oth- erwise discriminate; (2) through solici- tation, listing, approval, provision of facilities or other services, assist any foundation, trust, agency, organiza- tion, or person which provides assist- ance to any of such recipient’s students in a manner which discriminates on the basis of sex; or (3) apply any rule or assist in application of any rule con- cerning eligibility for such assistance which treats persons of one sex dif- ferently from persons of the other sex with regard to marital or parental sta- tus. (b) Financial aid established by certain legal instruments. (1) A recipient may administer or assist in the administra- tion of schol sons of the other sex with regard to marital or parental sta- tus. (b) Financial aid established by certain legal instruments. (1) A recipient may administer or assist in the administra- tion of scholarships, fellowships, or other forms of financial assistance es- tablished pursuant to domestic or for- eign wills, trusts, bequests, or similar legal instruments or by acts of a for- eign government which requires that awards be made to members of a par- ticular sex specified therein; Provided, That the overall effect of the award of such sex-restricted scholarships, fel- lowships, and other forms of financial assistance does not discriminate on the basis of sex. (2) To ensure nondiscriminatory awards of assistance as required in paragraph (b)(1) of this section, recipi- ents shall develop and use procedures under which: (i) Students are selected for award of financial assistance on the basis of nondiscriminatory criteria and not on the basis of availability of funds re- stricted to members of a particular sex; (ii) An appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to 546 Dept. of Health and Human Services § 86.40 each student se rs of a particular sex; (ii) An appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to 546 Dept. of Health and Human Services § 86.40 each student selected under paragraph (b)(2)(i) of this section; and (iii) No student is denied the award for which he or she was selected under paragraph (b)(2)(i) of this section be- cause of the absence of a scholarship, fellowship, or other form of financial assistance designated for a member of that student’s sex. (c) Athletic scholarships. (1) To the ex- tent that a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in inter- scholastic or intercollegiate athletics. (2) Separate athletic scholarships or grants-in-aid for members of each sex may be provided as part of separate athletic teams for members of each sex to the extent consistent with this para- graph and § 86.41. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682; and sec. 844, Education Amendments of 1974, Pub. L. 93–380, 88 Stat. 484) [40 FR 24128 para- graph and § 86.41. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682; and sec. 844, Education Amendments of 1974, Pub. L. 93–380, 88 Stat. 484) [40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975] § 86.38 Employment assistance to stu- dents. (a) Assistance by recipient in making available outside employment. A recipi- ent which assists any agency, organiza- tion or person in making employment available to any of its students: (1) Shall assure itself that such em- ployment is made available without discrimination on the basis of sex; and (2) Shall not render such services to any agency, organization, or person which discriminates on the basis of sex in its employment practices. (b) Employment of students by recipi- ents. A recipient which employs any of its students shall not do so in a manner which violates subpart E of this part. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.39 Health and insurance benefits and services. In providing a medical, hospital, ac- cident, or life insurance benefit, serv- ice, policy, or plan to any of its stu- dents, a recipient shall not discrimi- nate on the urance benefits and services. In providing a medical, hospital, ac- cident, or life insurance benefit, serv- ice, policy, or plan to any of its stu- dents, a recipient shall not discrimi- nate on the basis of sex, or provide such benefit, service, policy, or plan in a manner which would violate Subpart E of this part if it were provided to em- ployees of the recipient. This section shall not prohibit a recipient from pro- viding any benefit or service which may be used by a different proportion of students of one sex than of the other, including family planning serv- ices. However, any recipient which pro- vides full coverage health service shall provide gynecological care. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.40 Marital or parental status. (a) Status generally. A recipient shall not apply any rule concerning a stu- dent’s actual or potential parental, family, or marital status which treats students differently on the basis of sex. (b) Pregnancy and related conditions. (1) A recipent shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extra- curricul . (b) Pregnancy and related conditions. (1) A recipent shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extra- curricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the stu- dent requests voluntarily to partici- pate in a separate portion of the pro- gram or activity of the recipient. (2) A recipient may require such a student to obtain the certification of a physician that the student is phys- ically and emotionally able to continue participation so long as such a certifi- cation is required of all students for other physical or emotional conditions requiring the attention of a physician. (3) A recipient which operates a por- tion of its education program or activ- ity separately for pregnant students, admittance to which is completely vol- untary on the part of the student as provided in paragraph (b)(1) of this sec- tion shall ensure that the separate por- tion is comparable to that offered to non-pregnant students. (4) A recipient shall treat pregnancy, false pregnancy, termi- childbirth, nation of pregnanc sec- tion shall ensure that the separate por- tion is comparable to that offered to non-pregnant students. (4) A recipient shall treat pregnancy, false pregnancy, termi- childbirth, nation of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, serv- ice, plan or policy which such recipient administers, operates, offers, or par- ticipates in with respect to students 547 § 86.41 45 CFR Subtitle A (10–1–24 Edition) admitted to the recipient’s educational program or activity. (5) In the case of a recipient which does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom as a justifica- tion for a leave of absence for so long a period of time as is deemed medically necessary by the student’s physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 16 physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) [40 FR 24137, June 4, 1975, as amended at 70 FR 24321, May 9, 2005] § 86.41 Athletics. (a) General. No person shall, on the basis of sex, be excluded from partici- pation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall pro- vide any such athletics separately on such basis. (b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient oper- ates or sponsors a team in a particular sport for members of one sex but oper- ates or sponsors no such team for mem- bers of the other sex, and athletic op- portunities for members of that sex have previously been limited, members o icular sport for members of one sex but oper- ates or sponsors no such team for mem- bers of the other sex, and athletic op- portunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose of major ac- tivity of which involves bodily contact. (c) Equal opportunity. A recipient which operates or sponsors inter- scholastic, intercollegiate, club or in- tramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors: (1) Whether the selection of sports and levels of competition effectively accommodate the interests and abili- ties of members of both sexes; (2) The provision of equipment and supplies; (3) Scheduling of games and practice time; (4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provi 3) Scheduling of games and practice time; (4) Travel and per diem allowance; (5) Opportunity to receive coaching and academic tutoring; (6) Assignment and compensation of coaches and tutors; (7) Provision of locker rooms, prac- tice and competitive facilities; (8) Provision of medical and training facilities and services; (9) Provision of housing and dining facilities and services; (10) Publicity. Unequal aggregate expenditures for members of each sex or unequal ex- penditures for male and female teams if a recipient operates or sponsors sepa- rate teams will not constitute non- compliance with this section, but the Director may consider the failure to provide necessary funds for teams for one sex in assessing equality of oppor- tunity for members of each sex. (d) Adjustment period. A recipient which operates or sponsors inter- scholastic, intercollegiate, club or in- tramural athletics at the elementary school level shall comply fully with this section as expeditiously as pos- sible but in no event later than one year from the effective date of this reg- ulation. A recipient which operates or sponsors intercolle- giate, club or intramural athletics at the secondary or post-seconda ut in no event later than one year from the effective date of this reg- ulation. A recipient which operates or sponsors intercolle- giate, club or intramural athletics at the secondary or post-secondary school level shall comply fully with this sec- tion as expeditiously as possible but in no event later than three years from the effective date of this regulation. interscholastic, (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682; and sec. 844, Education Amendments of 1974, Pub. L. 93–380, 88 Stat. 484) [40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975] 548 Dept. of Health and Human Services § 86.52 § 86.42 Textbooks and curricular mate- (b) Application. The provisions of this rial. subpart apply to: Nothing in this regulation shall be interpreted as requiring or prohibiting or abridging in any way the use of par- ticular textbooks or curricular mate- rials. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) §§ 86.43–86.50 [Reserved] Subpart E—Discrimination on the Basis of Sex in Employment in Education Programs or Activi- ties Prohibited § 86.51 Employment. (a) General. (1) No person shall, on the basi §§ 86.43–86.50 [Reserved] Subpart E—Discrimination on the Basis of Sex in Employment in Education Programs or Activi- ties Prohibited § 86.51 Employment. (a) General. (1) No person shall, on the basis of sex, be excluded from par- ticipation in, be denied the benefits of, or be subjected to discrimination in employment, or recruitment, consider- ation, or selection therefor, whether full-time or part-time, under any edu- cation program or activity operated by a recipient which receives Federal fi- nancial assistance. (2) A recipient shall make all em- ployment decisions in any education program or activity operated by such recipient in a nondiscriminatory man- ner and shall not limit, segregate, or classify applicants or employees in any way which could adversely affect any applicant’s or employee’s employment opportunities or status because of sex. (3) A recipient shall not enter into any contractual or other relationship which directly or indirectly has the ef- fect of subjecting employees or stu- dents to discrimination prohibited by this subpart, including relationships with employment and referral agen- cies, with labor unions, and with orga- nizations providing or administer ployees or stu- dents to discrimination prohibited by this subpart, including relationships with employment and referral agen- cies, with labor unions, and with orga- nizations providing or administering fringe benefits to employees of the re- cipient. (4) A recipient shall not grant pref- erences to applicants for employment on the basis of attendance at any edu- cational institution or entity which ad- mits as students only or predominantly members of one sex, if the giving of such preferences has the effect of dis- criminating on the basis of sex in vio- lation of this part. (1) Recruitment, advertising, and the process of application for employment; (2) Hiring, upgrading, promotion, consideration for and award of tenure, termi- demotion, nation, application of nepotism poli- cies, right of return from layoff, and rehiring; transfer, layoff, (3) Rates of pay or any other form of compensation, and changes in com- pensation; (4) Job assignments, classifications and structure, including position de- scriptions, lines of progression, and se- niority lists; (5) The terms of any collective bar- gaining agreement; (6) Granting and return from leaves of absence, leave for pregnancy, chi g position de- scriptions, lines of progression, and se- niority lists; (5) The terms of any collective bar- gaining agreement; (6) Granting and return from leaves of absence, leave for pregnancy, child- birth, false pregnancy, termination of pregnancy, leave for persons of either sex to care for children or dependents, or any other leave; (7) Fringe benefits available by vir- tue of employment, whether or not ad- ministered by the recipient; (8) Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, selection for tuition for sabbaticals and leaves of absence to pursue training; assistance, selection (9) Employer-sponsored activities, in- cluding those that are social or rec- reational; and (10) Any other term, condition, or privilege of employment. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) [40 FR 24137, June 4, 1975, as amended at 70 FR 24321, May 9, 2005] § 86.52 Employment criteria. A recipient shall not administer or operate any test or other criterion for any employment opportunity which has a disproportionately adverse effect on persons on the basis 86.52 Employment criteria. A recipient shall not administer or operate any test or other criterion for any employment opportunity which has a disproportionately adverse effect on persons on the basis of sex unless: (a) Use of such test or other criterion is shown to predict validly successful performance in the position in ques- tion; and (b) Alternative tests or criteria for such purpose, which do not have such 549 § 86.53 45 CFR Subtitle A (10–1–24 Edition) disproportionately adverse effect, are shown to be unavailable. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.53 Recruitment. (a) Nondiscriminatory recruitment and hiring. A recipient shall not discrimi- nate on the basis of sex in the recruit- ment and hiring of employees. Where a recipient has been found to be pres- ently discriminating on the basis of sex in the recruitment or hiring of employ- ees, or has been found to have in the past so discriminated, the recipient shall recruit members of the sex so dis- criminated against so as to overcome the effects of such past or present dis- crimination. (b) Recruitment patterns. A recipient shall not recruit primarily or exclu- sive t members of the sex so dis- criminated against so as to overcome the effects of such past or present dis- crimination. (b) Recruitment patterns. A recipient shall not recruit primarily or exclu- sively at entities which furnish as ap- plicants only or predominantly mem- bers of one sex if such actions have the effect of discriminating on the basis of sex in violation of this subpart. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.54 Compensation. A recipient shall not make or enforce any policy or practice which, on the basis of sex: (a) Makes distinctions in rates of pay or other compensation; (b) Results in the payment of wages to employees of one sex at a rate less than that paid to employees of the op- posite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.55 Job classification and struc- ture. A recipient shall not: (a) Classify a job as being for males or for females; (b) Maintain or establish separate lines of progression, seni .S.C. 1681, 1682) § 86.55 Job classification and struc- ture. A recipient shall not: (a) Classify a job as being for males or for females; (b) Maintain or establish separate lines of progression, seniority lists, ca- reer ladders, or tenure systems based on sex; or (c) Maintain or establish separate lines of progression, seniority systems, career ladders, or tenure systems for similar jobs, position descriptions, or job requirements which classify per- sons on the basis of sex, unless sex is a bona-fide occupational qualification for the positions in question as set forth in § 86.61. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) [40 FR 24128, June 4, 1975; 40 FR 39506, Aug. 28, 1975] § 86.56 Fringe benefits. (a) Fringe benefits defined. For pur- poses of this part, fringe benefits means: Any medical, hospital, accident, life in- surance or retirement benefit, service, policy or plan, any profit-sharing or bonus plan, leave, and any other ben- efit or service of employment not sub- ject to the provision of § 86.54. (b) Prohibitions. A recipient shall not: (1) Discriminate on the basis of sex with regard to making fringe benefits available to fit or service of employment not sub- ject to the provision of § 86.54. (b) Prohibitions. A recipient shall not: (1) Discriminate on the basis of sex with regard to making fringe benefits available to employees or make fringe benefits available to spouses, families, or dependents of employees differently upon the basis of the employee’s sex; (2) Administer, operate, offer, or par- ticipate in a fringe benefit plan which does not provide either for equal peri- odic benefits for members of each sex, or for equal contributions to the plan by such recipient for members of each sex; or (3) Administer, operate, offer, or par- ticipate in a pension or retirement plan which establishes different optional or compulsory retirement ages based on sex or which otherwise discriminates in benefits on the basis of sex. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.57 Marital or parental status. (a) General. A recipient shall not apply any policy or take any employ- ment action: (1) Concerning the potential marital, parental, or family status of an em- ployee or applicant for employment which treats persons differently on the basis of sex; or (2) Which ny employ- ment action: (1) Concerning the potential marital, parental, or family status of an em- ployee or applicant for employment which treats persons differently on the basis of sex; or (2) Which is based upon whether an employee or applicant for employment is the head of household or principal wage earner in such employee’s or ap- plicant’s family unit. 550 Dept. of Health and Human Services § 86.61 (b) Pregnancy. A recipient shall not discriminate against or exclude from employment any employee or applicant for employment on the basis of preg- nancy, childbirth, false pregnancy, ter- mination of pregnancy, or recovery therefrom. (c) Pregnancy as a temporary disability. A recipient shall treat pregnancy, childbirth, false pregnancy, termi- nation of pregnancy, and recovery therefrom and any temporary dis- ability resulting therefrom as any other temporary disability for all job related purposes, including commence- ment, duration and extensions of leave, payment of disability income, accrual of seniority and any other benefit or service, and reinstatement, and under any fringe benefit offered to employees by virtue of employment. (d) Pregnancy leave. In the case of a recipien ome, accrual of seniority and any other benefit or service, and reinstatement, and under any fringe benefit offered to employees by virtue of employment. (d) Pregnancy leave. In the case of a recipient which does not maintain a leave policy for its employees, or in the case of an employee with insufficient leave or accrued employment time to qualify for leave under such a policy, a recipient shall treat pregnancy, child- birth, false pregnancy, termination of pregnancy and recovery therefrom as a justification for a leave of absence without pay for a reasonable period of time, at the conclusion of which the employee shall be reinstated to the sta- tus which she held when the leave began or to a comparable position, without decrease in rate of compensa- tion or loss of promotional opportuni- ties, or any other right or privilege of employment. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.58 Effect of State or local law or other requirements. (a) Prohibitory requirements. The obli- gation to comply with this subpart is not obviated or alleviated by the exist- ence of any State or local law or other requirement which imposes prohibi- tio s. (a) Prohibitory requirements. The obli- gation to comply with this subpart is not obviated or alleviated by the exist- ence of any State or local law or other requirement which imposes prohibi- tions or limits upon employment of members of one sex which are not im- posed upon members of the other sex. (b) Benefits. A recipient which pro- vides any compensation, service, or benefit to members of one sex pursuant to a State or local law or other require- ment shall provide the same compensa- tion, service, or benefit to members of the other sex. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.59 Advertising. A recipient shall not in any adver- tising related to employment indicate preference, limitation, specification, or discrimination based on sex unless sex is a bona-fide occupational qualifica- tion for the particular job in question. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.60 Pre-employment inquiries. (a) Marital status. A recipient shall not make pre-employment inquiry as to the marital status of an applicant for employment, including whether such applicant is ‘‘Miss or Mrs.’’ ( loyment inquiries. (a) Marital status. A recipient shall not make pre-employment inquiry as to the marital status of an applicant for employment, including whether such applicant is ‘‘Miss or Mrs.’’ (b) Sex. A recipient may make pre- employment inquiry as to the sex of an applicant for employment, but only if such inquiry is made equally of such applicants of both sexes and if the re- sults of such inquiry are not used in connection with discrimination prohib- ited by this part. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.61 Sex as a bona-fide occupational qualification. A recipient may take action other- wise prohibited by this subpart pro- vided it is shown that sex is a bona-fide occupational qualification for that ac- tion, such that consideration of sex with regard to such action is essential to successful operation of the employ- ment function concerned. A recipient shall not take action pursuant to this section which is based upon alleged comparative employment characteris- tics or stereotyped characterizations of one or the other sex, or upon pref- erence based on sex of the recipient, employees, students, or other persons, b alleged comparative employment characteris- tics or stereotyped characterizations of one or the other sex, or upon pref- erence based on sex of the recipient, employees, students, or other persons, but nothing contained in this section shall prevent a recipient from consid- ering an employee’s sex in relation to employment in a locker room or toilet facility used only by members of one sex. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) 551 §§ 86.62–86.70 45 CFR Subtitle A (10–1–24 Edition) §§ 86.62–86.70 [Reserved] Subpart F—Procedures [Interim] § 86.71 Enforcement procedures. For the purposes of implementing this part, the procedural provisions ap- plicable to Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) are hereby adopted and incorporated herein by ref- erence. These procedures may be found at 45 CFR 80.6 through 80.11 and 45 CFR part 81. [85 FR 37244, June 19, 2020] SUBJECT INDEX TO TITLE IX PREAMBLE AND REGULATION 1 A BFOQ, [96]; 86.61 B C Comparable facilities Housing, [42, 54]; 86.32 Other, 86.33, 86.35(b) Compensation, [84, 87, 92]; 86.54 Counseling Disproportionate classes, [45, 59]; 86.36(c) General, [45, 59]; 86.36( 96]; 86.61 B C Comparable facilities Housing, [42, 54]; 86.32 Other, 86.33, 86.35(b) Compensation, [84, 87, 92]; 86.54 Counseling Disproportionate classes, [45, 59]; 86.36(c) General, [45, 59]; 86.36(a) Materials, [45, 59]; 86.36(b) Course Offerings Adjustment period, [55]; 86.34(a) (i) General, [7, 43]; 86.34 Music classes, [43]; 86.34(f) Physical education, [43, 56, 58]; Sex education, [43, 57]; 86.34(e) Coverage, [5]; 86.11 to 86.17 Exemptions Curricular materials, [52]; 86.42(a) Access to Course Offerings [43, 55, 56, 57, 58]; D 86.34 Access to Schools Operated by LEA’s, [44]; 86.35 Admissions, [5, 6, 30]; 86.15, 86.21 Affirmative and remedial action, [16, 17, 24]; 86.3 (a), (b) Administratively [30];86.15(b), 86.2(o) separate units, Educational Institutions, [30], 86.15(d), 86.2(n) General, 86.21(a), 86.2(p), Prohibitions relating to marital and paren- tal status, [32, 36]; 86.21(c) Professional schools, [30], 86.2(m) Public institutions of undergraduate high- er education, 86.15(e) Recruitment, [34, 35]; 86.23 Specific prohibitions, 86.21(b) Tests, [31]; 86.21(b)(2) Preference in admission, [35]; 86.22 Advertising, 86.59 Affirmative Action, see ‘‘Remedial and Af- firmative Ac e) Recruitment, [34, 35]; 86.23 Specific prohibitions, 86.21(b) Tests, [31]; 86.21(b)(2) Preference in admission, [35]; 86.22 Advertising, 86.59 Affirmative Action, see ‘‘Remedial and Af- firmative Actions’’ Assistance to ‘‘outside’’ discriminatory orga- nizations, [40, 53]; 86.31(b)(7), (c) Assurances, [18]; 86.4 Duration of obligation, 86.4(b) Form, 86.4(c) Athletics, [69 to 78]; 86.41 Adjustment period, [78]; 86.41(d) Contact sport defined, 86.41(d) Equal opportunity, [76, 77]; 86.41(d) Determining factors, 86.41(c) (i) to (x) Equipment, 86.41(c) Expenditures, 86.41(c) Facilities, 86.41(c) Travel, 86.41(c) Scholarships, [64, 65]; 86.37(d) General, [69, 70, 71, 72, 73, 74, 75]; 86.41(a) Separate teams, [75]; 86.41(b) 1 Preamble paragraph numbers are in brackets [ ]. Definitions, [14, 15]; 86.2(a) to (r) Designation of responsible employee, [20, 22]; 86.8(a), (b) Dissemination of policy, [21]; 86.9 Distribution, 86.9(c) Notification of policy, [21]; 86.9(a) Publications, 86.9(b) Dress codes 86.31(b) (4) E Education Institutions Controlled by religious organizations, 86.12 Application, [28, 29]; 86.12(a) Exemption, [26]; 86.12(b) Education Program and Activities Benefiting from Fed codes 86.31(b) (4) E Education Institutions Controlled by religious organizations, 86.12 Application, [28, 29]; 86.12(a) Exemption, [26]; 86.12(b) Education Program and Activities Benefiting from Federal financial assist- ance, [10, 11]; 86.11 General, [10, 11, 53]; 86.31(a) Programs not operated by recipient, [41, 54]; 86.31(c) Specific prohibitions, [38, 39, 40, 53]; 86.31 (b) Effective Date, [3] Employee responsible for Title IX, see ‘‘Designation of Responsible Employee’’ Employment Advertising, 86.59 Application, 86.51(b) Compensation, [84, 92]; 86.54 Employment criteria, 86.52 Fringe benefits, [88, 89]; 86.56 General, [81, 82, 87]; 86.51 Job Classification and Structure, 86.55 Marital and Parental Status, 86.57 Pregnancy, [85, 93]; 86.57(b) Pregnancy as Temporary Disability, [85, 93]; 86.57(c) Pregnancy Leave, [85, 93, 94]; 86.57(d) Pre-Employment Inquiry Recruitment, [83, 90, 91, 95] Sex as a BFOQ, [96]; 86.61 Student Employment, [66]; 86.38 Tenure, 86.51(b) (2) 552 Dept. of Health and Human Services Pt. 86, Index Exemptions, [5, 27, 28, 29, 30, 53]; 86.12(b), YMCA, YWCA and others, [27, 28, 53]; 86.13, 86.14, 86.15(a), 86.15(d), 86.16 86.14(b) F Military and Merchant Marin alth and Human Services Pt. 86, Index Exemptions, [5, 27, 28, 29, 30, 53]; 86.12(b), YMCA, YWCA and others, [27, 28, 53]; 86.13, 86.14, 86.15(a), 86.15(d), 86.16 86.14(b) F Military and Merchant Marine Educational Institutions, [29]; 86.13 Federal Financial Assistance, 86.2(a) Financial Assistance to students, [46, 60, 61]; P 86.37 Athletic Scholarships, [46, 64, 65]; 86.37(d) Foreign institutions, study at [63]; 86.31(c) General, 86.37 Non-need scholarships, [62]; 86.37(b) Pooling of sex-restrictive, [46, 61, 62]; Pooling, see ‘‘Financial Assistance’’, 86.37 Pre-employment Inquiries Marital status, [86, 95]; 86.60(a) Sex, 86.60(b) Preference in Admissions, [35]; 86.22 See also ‘‘Remedial and Affirmative Ac- 86.37(b) tion’’ Sex-restrictive assistance through foreign Pregnancy, Employment or domestic wills [46, 61, 62]; 86.37(b) Foreign Scholarships, see ‘‘Financial assist- ance’’ 86.37 and ‘‘Assistance to ‘outside’ discriminatory organizations’’, 86.31(c) Fraternities/Sororities Social, [53, 27, 28]; 86.14(a) Business/professional, [40, 53, 27, 28]; 86.31(b) (7) Honor societies, [40, 53]; 86.31(b) (7) Fringe benefits, [67, 88, 89]; 86.56, 86.39 Part-time employees, [89] G Grievance , [53, 27, 28]; 86.14(a) Business/professional, [40, 53, 27, 28]; 86.31(b) (7) Honor societies, [40, 53]; 86.31(b) (7) Fringe benefits, [67, 88, 89]; 86.56, 86.39 Part-time employees, [89] G Grievance Procedure, see ‘‘Designation of re- sponsible employee’’, 86.8(a) (b) Health and Insurance Benefits and Services, H [67, 88, 93]; 86.39, 86.56 Honor societies, [40, 53]; 86.31(b) (7) Housing, 86.32 Generally, [42]; 86.32(b) Provided by recipient, 86.32(b) Other housing, [54]; 86.32(c) Job Classification and Structure, 86.55 J LEA’s, [44]; 86.35 L M Marital and Parental Status Employment General, [85, 93, 94]; 86.57 Pregnancy, [85, 93, 94]; 86.57(b) Pregnancy as a temporary disability, [85, 93, 94]; 86.57(c) Pregnancy leave, [85, 93, 94]; 86.57(d) Students General, [49]; 86.40(a) (b) Pregnancy and related conditions, [50]; 86.40(b) (1) (2) (3) (4) (5) Class participation, [50]; 86.40(b) (1) Physician certification, [50]; 86.40(b) (2) Special classes, [50]; 86.40(b) (3) Temporary leave, [50]; 86.40(b) (4) (5) General, [85, 93, 94]; 86.57 Pregnancy, [85, 93, 94]; 86.57(b) Pregnancy as temporary disability, [85, 93, 94]; 86.57(c) Pregnancy leave, [85, 93, 94]; 86.57(d) Students General, [ ]; 86.40(b) (4) (5) General, [85, 93, 94]; 86.57 Pregnancy, [85, 93, 94]; 86.57(b) Pregnancy as temporary disability, [85, 93, 94]; 86.57(c) Pregnancy leave, [85, 93, 94]; 86.57(d) Students General, [49, 50]; 86.40(a) and (b) Pregnancy and related conditions; [50]; 86.40(b) (1) to (5) Class Participation, [50, 55, 58]; 86.40(b) (1) Physical certification, [50]; 86.40(b) (2) Special class, [50]; 86.40 (b) (3) Temporary leave, [50]; 86.40(b) (4), (5) Private Undergraduate Professional Schools, [30]; 86.15(d) Purpose of Regulation, [13]; 86.1 R Real Property, 86.2(g) Recruitment Employment Nondiscrimination, [83, 91]; 86.53(a) Patterns, 86.53(b) Student Nondiscrimination, [34, 35]; 86.23(a) Recruitment at certain institutions, 86.23 (b) Religious Organizations Application, [29, 28]; 86.12(a) Exemption, [26]; 86.12(b) Remedial and Affirmative Actions, [16, 17, 24]; 86.3 S Scholarships, see ‘‘Financial Assistance’’, 86.37 Self-evaluation, [16, 22]; 86.3(c) (d) Surplus Property (see Transfer of Property 86.5) Duration of obligation 86.4(b) Real Property 86.4(b) (1) T Textbooks and curricular materials, [52, 79, 80]; 86.42 Termination of funds, [10, 11] Transfer of property, 86.5 Transiti of Property 86.5) Duration of obligation 86.4(b) Real Property 86.4(b) (1) T Textbooks and curricular materials, [52, 79, 80]; 86.42 Termination of funds, [10, 11] Transfer of property, 86.5 Transition Plans Membership Practices of Social fraternities and sororities, [27, 28, 53]; 86.14(a) Content of plans, 86.17(b) Different from Adjustment period, [78]; Voluntary youth service organizations, [27, 86.41(d) 28, 53]; 86.14(c) Submission of plans, 86.17(a) 553 Pt. 86, App. A 45 CFR Subtitle A (10–1–24 Edition) APPENDIX A TO PART 86—GUIDELINES FOR ELIMINATING DISCRIMINATION AND DENIAL OF SERVICES ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN, SEX, AND HANDICAP IN VO- CATIONAL EDUCATION PROGRAMS [NOTE] NOTE: For the text of these guidelines, see 45 CFR part 80, appendix B. [44 FR 17168, Mar. 21, 1979] PART 87—EQUAL TREATMENT FOR FAITH-BASED ORGANIZATIONS Sec. 87.1 Definitions. 87.2 Applicability. 87.3 Faith-based organizations and Federal financial assistance. 87.4 Severability. APPENDIX A TO PART 87—DIRECT AID PRO- GRAMS: WRITTEN NOTICE OF BENEFICIARY PROTECTIONS APPENDIX B TO PART 87—NOTICE OR AN- NOUNCEMENT OF AWARD OPPORTUNITIES APPENDIX C TO PART 87—NOTICE OF AWARD OR CONTRACT AUT TO PART 87—DIRECT AID PRO- GRAMS: WRITTEN NOTICE OF BENEFICIARY PROTECTIONS APPENDIX B TO PART 87—NOTICE OR AN- NOUNCEMENT OF AWARD OPPORTUNITIES APPENDIX C TO PART 87—NOTICE OF AWARD OR CONTRACT AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 2000bb et seq. SOURCE: 81 FR 19426, Apr. 4, 2016, unless otherwise noted. § 87.1 Definitions. The following definitions apply for the purposes of this part. (a) Direct Federal financial assistance, Federal financial assistance provided di- rectly, or direct funding means financial assistance received by an entity se- lected by the Government or a pass- through entity (as defined in this part) to carry out a service (e.g., by con- tract, grant, or cooperative agree- ment). References to Federal financial assistance will be deemed to be ref- erences to direct Federal financial as- sistance, unless the referenced assist- ance meets the definition of indirect Federal financial assistance or Federal financial assistance provided indi- rectly. (b) Directly funded means funded by means of direct Federal financial as- sistance. (c) Indirect Federal financial assistance or Federal financial assistance provided indirectly means Federal financial as- sistance recei means funded by means of direct Federal financial as- sistance. (c) Indirect Federal financial assistance or Federal financial assistance provided indirectly means Federal financial as- sistance received by a service provider when the service provider is paid for services rendered by means of a vouch- er, certificate, or other means of Gov- ernment-funded payment provided to a beneficiary who is able to make a choice of a service provider, and: (1) The Government program through which the beneficiary receives the voucher, certificate, or other similar means of Government-funded payment is neutral toward religion; and (2) The service provider receives the assistance wholly as a result of a gen- uine and independent private choice of the beneficiary, not a choice of the Government. The availability of ade- quate secular alternatives is a signifi- cant factor in determining whether a program affords true private choice. (d) Federal financial assistance means assistance that non-Federal entities re- ceive or administer in the form of grants, contracts, loans, loan guaran- tees, property, cooperative agreements, food commodities, direct appropria- tions, or other assistance, but does no tities re- ceive or administer in the form of grants, contracts, loans, loan guaran- tees, property, cooperative agreements, food commodities, direct appropria- tions, or other assistance, but does not include a tax credit, deduction, or ex- emption. Federal financial assistance may be direct or indirect. (e) Pass-through entity means an enti- ty, including a nonprofit or nongovern- mental organization, acting under a contract, grant, or other agreement with the Federal Government or with a State or local government, such as a State administering agency, that ac- cepts direct Federal financial assist- ance as a primary recipient or grantee and distributes that assistance to other organizations that, in turn, provide government funded social services. (f) Recipient means a non-Federal en- tity that receives a Federal award di- rectly from a Federal awarding agency to carry out an activity under a Fed- eral program. The term recipient does not include subrecipients, but does in- clude pass-through entities. (g) Religious exercise has the meaning given to the term in 42 U.S.C. 2000cc– 5(7)(A). [85 FR 82145, Dec. 17, 2020, as amended at 89 FR 15721, Mar. 4, 2024] 554 Dept. of Health an ss-through entities. (g) Religious exercise has the meaning given to the term in 42 U.S.C. 2000cc– 5(7)(A). [85 FR 82145, Dec. 17, 2020, as amended at 89 FR 15721, Mar. 4, 2024] 554 Dept. of Health and Human Services § 87.3 § 87.2 Applicability. This part applies to grants awarded in HHS social service programs gov- erned by either the Uniform Adminis- trative Requirements, Cost Principles, and Audit Requirements at 45 CFR part 75 or Block Grant regulations at 45 CFR part 96, except as provided in paragraphs (a) and (b) of this section. Services (a) Discretionary grants. This part is not applicable to the discretionary grant programs that are governed by the Substance Abuse and Mental Health Administration (SAMHSA) Charitable Choice regula- tions found at 42 CFR part 54a. This part is also not applicable to discre- tionary grant programs that are gov- erned by the Community Services Block Grant (CSBG) Charitable Choice regulations at 45 CFR part 1050, with the exception of §§ 87.1 and 87.3(k) through (m) and (o), which do apply to such CSBG discretionary grants. Dis- cretionary grants authorized by the Child Care and Development Block Grant Act are also not governed by this part. ( 87.3(k) through (m) and (o), which do apply to such CSBG discretionary grants. Dis- cretionary grants authorized by the Child Care and Development Block Grant Act are also not governed by this part. (b) Formula and block grants. This part does not apply to non-discre- tionary and block grant programs gov- erned by the SAMHSA Charitable Choice regulations found at 42 CFR part 54, or the Temporary Assistance for Needy Families (TANF) Charitable Choice regulations at 45 CFR part 260. Block grants governed by the CSBG Charitable Choice regulations at 45 CFR part 1050 are not subject to this part, with the exception of §§ 87.1 and 87.3(k) through (m) and (o), which do apply to such CSBG block grants. This part is not applicable to Child Care and Development Block Grants governed by 45 CFR part 98. [81 FR 19426, Apr. 4, 2016, as amended at 89 FR 15721, Mar. 4, 2024] § 87.3 Faith-based organizations and Federal financial assistance. (a) Faith-based organizations are eli- gible, on the same basis as any other organization, to participate in any HHS awarding agency program or serv- ice for which they are otherwise eligi- ble. Neither the HHS awarding agency nor any State or local government sis as any other organization, to participate in any HHS awarding agency program or serv- ice for which they are otherwise eligi- ble. Neither the HHS awarding agency nor any State or local government or other pass-through entity receiving funds under any HHS awarding agency program or service shall, in the selec- tion of service providers, discriminate for or against an organization on the basis of the organization’s religious character, motives, or affiliation, or lack thereof, or on the basis of conduct that would not be considered grounds to favor or disfavor a similarly situ- ated secular organization. (b) Nothing in this part shall be con- strued to preclude HHS from making an accommodation, including for reli- gious exercise, with respect to one or more program requirements on a case- by-case basis in accordance with the Constitution and laws of the United States. (c) HHS shall not disqualify an orga- nization from participating in any HHS program for which it is eligible on the basis of the organization’s indication that it may request an accommodation with respect to one or more program requirements, unless the organization has made clear that the accommoda- tion is necess basis of the organization’s indication that it may request an accommodation with respect to one or more program requirements, unless the organization has made clear that the accommoda- tion is necessary to its participation and HHS has determined that it would deny the accommodation. (d) Organizations that receive direct financial assistance from an HHS awarding agency may not engage in any explicitly religious activities (in- cluding activities that involve overt religious content such as worship, reli- gious instruction, or proselytization) as part of the programs or services funded with direct financial assistance from the HHS awarding agency, or in any other manner prohibited by law. If an organization conducts such activi- ties, the activities must be offered sep- arately, in time or location, from the programs or services funded with direct financial assistance from the HHS awarding agency, and participation must be voluntary for beneficiaries of the programs or services funded with such assistance. The use of indirect Federal financial assistance is not sub- ject to this restriction. Nothing in this part restricts HHS’s authority under applicable Federal law to fund activi- with such assistance. The use of indirect Federal financial assistance is not sub- ject to this restriction. Nothing in this part restricts HHS’s authority under applicable Federal law to fund activi- ties, such as the provision of chap- laincy services, that can be directly funded by the Government consistent with the Establishment Clause. (e) A faith-based organization that participates in HHS awarding-agency 555 § 87.3 45 CFR Subtitle A (10–1–24 Edition) funded programs or services will retain its autonomy; right of expression; reli- gious character; and independence from Federal, State, and local governments, and may continue to carry out its mis- sion, including the definition, develop- ment, practice, and expression of its re- ligious beliefs. A faith-based organiza- tion may use space in its facilities to provide programs or services funded with financial assistance from the HHS awarding agency without concealing, removing, or altering religious art, icons, scriptures, or other religious symbols. Such a faith-based organiza- tion retains its authority over its in- ternal governance, and it may retain religious terms in its name, select its board members on the basis of their religious symbols. Such a faith-based organiza- tion retains its authority over its in- ternal governance, and it may retain religious terms in its name, select its board members on the basis of their ac- ceptance of or adherence to the reli- gious tenets of the organization, and include religious references in its mis- sion statements and other governing documents. In addition, a faith-based organization that receives financial as- sistance from the HHS awarding agen- cy does not lose the protections of law. (f) An organization, whether faith- based or not, that receives Federal fi- nancial assistance from HHS shall not, in providing services supported in whole or in part with Federal financial assistance, or in their outreach activi- ties related to such services, discrimi- nate against a program beneficiary or prospective program beneficiary on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a re- ligious practice. However, a faith-based organization receiving indirect Federal financial assistance need not modify any religious components or integra- tion with respect to its program activi- ties to accommod tice. However, a faith-based organization receiving indirect Federal financial assistance need not modify any religious components or integra- tion with respect to its program activi- ties to accommodate a beneficiary who chooses to expend the indirect aid on the organization’s program. (g) No grant document, agreement, covenant, memorandum of under- standing, policy, or regulation used by an HHS awarding agency or a State or local government in administering Federal financial assistance from the HHS awarding agency shall require faith-based organizations to provide as- surances or notices where they are not required of non-faith-based organiza- tions. Any restrictions on the use of grant funds shall apply equally to faith-based and non-faith-based organi- zations. All organizations, whether faith-based or not, that participate in HHS awarding agency programs or services must carry out eligible activi- ties in accordance with all program re- quirements, including those prohib- iting the use of direct Federal financial assistance to engage in explicitly reli- gious activities, subject to any accom- modations that HHS grants to organi- zations on a case-by-case basis in ac- cordance e use of direct Federal financial assistance to engage in explicitly reli- gious activities, subject to any accom- modations that HHS grants to organi- zations on a case-by-case basis in ac- cordance with the Constitution and laws of the United States. No grant document, covenant, agreement, memorandum of understanding, policy, or regulation used by an HHS awarding agency or a State or local government in administering Federal financial as- sistance from the HHS awarding agen- cy shall disqualify faith-based organi- zations from participating in the HHS awarding agency’s programs or services on the basis of the organization’s reli- gious character, motives, or affiliation, or lack thereof, or on the basis of con- duct that would not be considered grounds to disqualify a similarly situ- ated secular organization. (h) A faith-based organization’s ex- emption from the Federal prohibition on employment discrimination on the basis of religion, set forth in the Civil Rights Act of 1964, 42 U.S.C. 2000e–1, is not forfeited when the faith-based or- ganization receives direct or indirect Federal financial assistance from an HHS awarding agency. Some HHS awarding agency programs, however, co .S.C. 2000e–1, is not forfeited when the faith-based or- ganization receives direct or indirect Federal financial assistance from an HHS awarding agency. Some HHS awarding agency programs, however, contain independent statutory provi- sions requiring that all grantees agree not to discriminate in employment on the basis of religion. In this case, grantees should consult with the ap- propriate HHS awarding agency pro- gram office to determine the scope of any applicable requirements. (i) In general, the HHS awarding agency does not require that a recipi- ent, including a faith-based organiza- tion, obtain tax-exempt status under section 501(c)(3) of the Internal Rev- enue Code to be eligible for funding under HHS awarding agency programs. Many grant programs, however, do re- quire an organization to be a nonprofit organization in order to be eligible for funding. Funding announcements and other grant application solicitations 556 Dept. of Health and Human Services § 87.3 that require organizations to have non- profit status will specifically so indi- cate in the eligibility section of the so- licitation. In addition, any solicitation that requires an organization to main- tain tax-e ganizations to have non- profit status will specifically so indi- cate in the eligibility section of the so- licitation. In addition, any solicitation that requires an organization to main- tain tax-exempt status will expressly state the statutory authority for re- quiring such status. Recipients should consult with the appropriate HHS awarding agency program office to de- termine the scope of any applicable re- quirements. In HHS awarding agency programs in which an applicant must show that it is a nonprofit organiza- tion, the applicant may do so by any of the following means: (1) Proof that the Internal Revenue Service currently recognizes the appli- cant as an organization to which con- tributions are tax deductible under sec- tion 501(c)(3) of the Internal Revenue Code; (2) A statement from a State or other governmental taxing body or the State secretary of State certifying that: (i) The organization is a nonprofit or- ganization operating within the State; and (ii) No part of its net earnings may benefit any private shareholder or indi- vidual; (3) A certified copy of the applicant’s certificate of incorporation or similar document that clearly establishes the nonprofit statu net earnings may benefit any private shareholder or indi- vidual; (3) A certified copy of the applicant’s certificate of incorporation or similar document that clearly establishes the nonprofit status of the applicant; or (4) Any item described in paragraphs (i)(1) through (3) of this section, if that item applies to a State or national par- ent organization, together with a statement by the State or parent orga- nization that the applicant is a local nonprofit affiliate. (j) If a recipient contributes its own funds in excess of those funds required by a matching or grant agreement to supplement HHS awarding agency-sup- ported activities, the recipient has the option to segregate those additional funds or commingle them with the Fed- eral award funds. If the funds are com- mingled, the provisions of this part shall apply to all of the commingled funds in the same manner, and to the same extent, as the provisions apply to the Federal funds. With respect to the matching funds, the provisions of this part apply irrespective of whether such funds are commingled with Federal funds or segregated. (k) An organization providing social services under a discretionary grant program of HHS th sions of this part apply irrespective of whether such funds are commingled with Federal funds or segregated. (k) An organization providing social services under a discretionary grant program of HHS that is supported by Federal financial assistance must give written notice to beneficiaries and pro- spective beneficiaries of certain protec- tions. A pass-through entity admin- istering social service programs under a mandatory formula, block or entitle- ment grant of HHS that is supported by Federal financial assistance shall en- sure that beneficiaries and prospective beneficiaries receive written notice of certain protections. (1) The written notice to bene- ficiaries and prospective beneficiaries of directly funded social services shall include language substantially similar to that found in appendix A to this part. The notice must include the fol- lowing information: (i) The organization may not dis- criminate against a beneficiary or pro- spective beneficiary on the basis of re- ligion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice; (ii) The organization may not require a beneficiary or prospective benefici on, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice; (ii) The organization may not require a beneficiary or prospective beneficiary to attend or participate in any explic- itly religious activities that are offered by the organization, and any participa- tion by a beneficiary in such activities must be purely voluntary; (iii) The organization must separate in time or location any privately fund- ed explicitly religious activities from activities supported by direct Federal financial assistance; and (iv) A beneficiary or prospective ben- eficiary may report an organization’s violation of these protections, includ- ing any denials of services or benefits by an organization, by contacting or filing a written complaint with either the HHS awarding entity or the pass- through entity that awarded funds to the organization, which must promptly report the complaint to the HHS awarding entity. The HHS awarding entity will address the complaint in consultation with the HHS Office for Civil Rights. (2) The written notice to bene- ficiaries of indirectly funded social services must identify the protections in paragraphs (f ddress the complaint in consultation with the HHS Office for Civil Rights. (2) The written notice to bene- ficiaries of indirectly funded social services must identify the protections in paragraphs (f) and (k)(1)(ii) and (iv) of this section; it must also provide the 557 § 87.4 45 CFR Subtitle A (10–1–24 Edition) contact information of the HHS award- ing entity or the pass-through entity that administers the program. (l) The written notice described in paragraph (k) of this section must be given to a prospective beneficiary prior to the time the prospective beneficiary enrolls in the program or receives serv- ices from the program. When the na- ture of the service provided or exigent circumstances make it impracticable to provide such written notice in ad- vance of the actual service, an organi- zation must advise beneficiaries of their protections and provide the no- tice at the earliest available oppor- tunity. (m) The written notice described in paragraph (k) of this section must be given in a manner prescribed by the HHS awarding agency in consultation with the HHS Office for Civil Rights, such as by incorporating the notice into materials that are otherwise pro- vided to benef given in a manner prescribed by the HHS awarding agency in consultation with the HHS Office for Civil Rights, such as by incorporating the notice into materials that are otherwise pro- vided to beneficiaries. The HHS award- ing agency, in consultation with the HHS Office for Civil Rights, may deter- mine that the notice must inform each beneficiary or prospective beneficiary of the option to seek information from the HHS awarding agency, or another entity administering the applicable program, about other federally funded organizations in their area, if any, that provide the services available under the applicable program. (n) Notices or announcements of award opportunities and notices of award or contracts shall include lan- guage substantially similar to that in appendices B and C to this part. (o) Decisions about awards of direct Federal financial assistance must be made on the basis of merit, not on the basis of the religious affiliation, or lack thereof, of a recipient organiza- tion, and must be free from political interference or even the appearance of such interference. (p) Neither the HHS awarding agency nor any State or local government or other pass-through entity receiv ion, and must be free from political interference or even the appearance of such interference. (p) Neither the HHS awarding agency nor any State or local government or other pass-through entity receiving funds under any HHS awarding agency program or service shall construe these provisions in such a way as to advan- tage or disadvantage faith-based orga- nizations affiliated with historic or well-established religions or sects in comparison with other religions or sects. (q) If a pass-through entity, acting under a contract, grant, or other agree- ment with the Federal Government or with a State or local government that is administering a program supported by Federal financial assistance, is given the authority under the contract, grant, or agreement to select non-gov- ernmental organizations to provide services funded by the Federal Govern- ment, the pass-through entity must en- sure compliance with the provisions of this part and any implementing regula- tions or guidance by the sub-recipient. If the pass-through entity is a non-gov- ernmental organization, it retains all other rights of a non-governmental or- ganization under the program’s statu- tory and regulatory provisions. recipient. If the pass-through entity is a non-gov- ernmental organization, it retains all other rights of a non-governmental or- ganization under the program’s statu- tory and regulatory provisions. [85 FR 82146, Dec. 17, 2020, as amended at 89 FR 15721, Mar. 4, 2024] § 87.4 Severability. To the extent that any provision of this part is declared invalid by a court of competent jurisdiction, the Depart- ment intends for all other provisions that are capable of operating in the ab- sence of the specific provision that has been invalidated to remain in effect. [89 FR 15723, Mar. 4, 2024] APPENDIX A TO PART 87—DIRECT AID PROGRAMS: WRITTEN NOTICE OF BENEFICIARY PROTECTIONS Name of Organization: Name of Program: Contact Information for Program Staff: [provide name, phone number, and email ad- dress, if appropriate] Because this program is supported in whole or in part by financial assistance from the Federal Government, we are required to let you know that— (1) We may not discriminate against you on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious prac- tice; (2) We may not require you to attend or part st you on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious prac- tice; (2) We may not require you to attend or participate in any explicitly religious activi- ties (including activities that involve overt religious content such as worship, religious instruction or proselytization) that may be offered by our organization, and any partici- pation by you in such activities must be purely voluntary; 558 Dept. of Health and Human Services Pt. 88 (3) We must separate in time or location any privately funded explicitly religious ac- tivities (including activities that involve overt religious content such as worship, reli- gious instruction or proselytization) from activities supported with direct Federal fi- nancial assistance; (4) You may report violations of these pro- tections, including any denials of services or benefits by an organization, by contacting or filing a written complaint with [identify the HHS awarding entity, or the pass-through entity that awarded funds to your organiza- tion, and the phone number and physical street and/or email address of the identified office]. The HHS awarding enti HS awarding entity, or the pass-through entity that awarded funds to your organiza- tion, and the phone number and physical street and/or email address of the identified office]. The HHS awarding entity will ad- dress the complaint in consultation with the HHS Office for Civil Rights; [When required by the HHS awarding agen- cy, the notice must also state:] (5) If you would like to seek information about wheth- er there are any other federally funded orga- nizations that provide these kinds of services in your area, please use the contact informa- tion set forth above. We must give you this notice before you enroll in or receive services from the pro- gram, unless the nature of the service pro- vided or exigent circumstances make ad- vanced notice impracticable. In that case, this notice must be given to you at the ear- liest available opportunity. [89 FR 15723, Mar. 4, 2024] APPENDIX B TO PART 87—NOTICE OR AN- NOUNCEMENT OF AWARD OPPORTUNI- TIES (a) Faith-based organizations may apply for this award on the same basis as any other organization, as set forth at, and subject to the protections and requirements of, this part and any applicable constitutional and statutory requirements for this award on the same basis as any other organization, as set forth at, and subject to the protections and requirements of, this part and any applicable constitutional and statutory requirements, including 42 U.S.C. 2000bb et seq. HHS will not, in the selection of recipients, discriminate for or against an organization on the basis of the organiza- tion’s religious character, motives, or affili- ation, or lack thereof, or on the basis of con- duct that would not be considered grounds to favor or disfavor a similarly situated secular organization. (b) A faith-based organization that partici- pates in this program will retain its inde- pendence from the Government and may con- tinue to carry out its mission consistent with religious freedom, nondiscrimination, and conscience protections in Federal law. (c) A faith-based organization may not use direct Federal financial assistance from HHS to support or engage in any explicitly reli- gious activities (including activities that in- volve overt religious content such as wor- ship, religious instruction, or proselytiza- tion) except when consistent with the Estab- lishment Clause of the First Amendment and any other applicable requ olve overt religious content such as wor- ship, religious instruction, or proselytiza- tion) except when consistent with the Estab- lishment Clause of the First Amendment and any other applicable requirements. Such an organization also may not, in providing serv- ices funded by HHS, or in their outreach ac- tivities related to such services, discrimi- nate against a program beneficiary or pro- spective program beneficiary on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice. [89 FR 15723, Mar. 4, 2024] APPENDIX C TO PART 87—NOTICE OF AWARD OR CONTRACT (a) A faith-based organization that partici- pates in this program retains its independ- ence from the Government and may continue to carry out its mission consistent with reli- gious freedom, nondiscrimination, and con- science protections in Federal law. (b) A faith-based organization may not use direct Federal financial assistance from HHS to support or engage in any explicitly reli- gious activities (including activities that in- volve overt religious content such as wor- ship, religious instruction, or proselytiza- tion) except when consi upport or engage in any explicitly reli- gious activities (including activities that in- volve overt religious content such as wor- ship, religious instruction, or proselytiza- tion) except when consistent with the Estab- lishment Clause of the First Amendment and any other applicable requirements. Such an organization also may not, in providing serv- ices funded by the Department, or in their outreach activities related to such services, discriminate against a program beneficiary or prospective program beneficiary on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to at- tend or participate in a religious practice. [89 FR 15723, Mar. 4, 2024] PART 88—ENSURING THAT DEPART- MENT OF HEALTH AND HUMAN SERVICES FUNDS DO NOT SUP- PORT OR COERCIVE DISCIMINATORY POLICIES OR PRACTICES IN VIOLATION OF FEDERAL LAW Sec. 88.1 Purpose. 88.2 Complaint handling and investigating. 88.3 Notice of Federal conscience and non- discrimination laws. 88.4 Severability. APPENDIX A TO PART 88—MODEL TEXT: NO- TICE OF RIGHTS UNDER FEDERAL CON- SCIENCE AND NONDISCRIMINATION LAWS AUTHORITY: 5 U.S.C. 301. SOURCE: 89 FR 2107, Jan. 11, 2024, unless otherwise noted. 559 lity. APPENDIX A TO PART 88—MODEL TEXT: NO- TICE OF RIGHTS UNDER FEDERAL CON- SCIENCE AND NONDISCRIMINATION LAWS AUTHORITY: 5 U.S.C. 301. SOURCE: 89 FR 2107, Jan. 11, 2024, unless otherwise noted. 559 § 88.1 § 88.1 Purpose. (b)(4), and The purpose of this part is to provide for the enforcement of the Church Amendments, 42 U.S.C. 300a–7; the Coats-Snowe Amendment, section 245 of the Public Health Service Act, 42 U.S.C. 238n; the Weldon Amendment, e.g., Consolidated Appropriations Act, 2023, Public Law 117–328, div. H, title V General Provisions, section 507(d)(1) (Dec. 29, 2022); Sections 1303(b)(1)(A), (b)(4), and (c)(2)(A), and 1411(b)(5)(A), and 1553 of the ACA, 42 U.S.C. 18023(b)(1)(A), (c)(2)(A), 18081(b)(5)(A), and 18113; certain Medi- care and Medicaid provisions, 42 U.S.C. 1320a–1(h), 1395w– 1395x(y)(1), 1395x(e), 22(j)(3)(B), 1395cc(f), 1396a(a), 1396a(w)(3), 1396u– 2(b)(3)(B), 1397j–1(b), and 14406; the Helms, Biden, 1978, and 1985 Amend- ments, 22 U.S.C. 2151b(f), accord, e.g., Consolidated Appropriations Act, 2023, Public Law 117–328, div. K, title VII, section 7018 (Dec. 29, 2022); 22 U.S.C. 7631(d); 42 U.S.C. 280g–1(d), 290bb–36(f), 1396f, 1396s(c)(2)(B)(ii); 5106i(a)) ., Consolidated Appropriations Act, 2023, Public Law 117–328, div. K, title VII, section 7018 (Dec. 29, 2022); 22 U.S.C. 7631(d); 42 U.S.C. 280g–1(d), 290bb–36(f), 1396f, 1396s(c)(2)(B)(ii); 5106i(a)); and 29 U.S.C. 669(a)(5), referred to collectively as the ‘‘Federal health care conscience protection statutes.’’ 1320c–11, 1395i–5, § 88.2 Complaint handling and inves- tigating. (a) Delegated authority. The Office for Civil Rights (OCR) has been delegated the authority to facilitate and coordi- nate the Department’s enforcement of the Federal health care conscience pro- tection statutes, which includes the authority to: (1) Receive and handle complaints; (2) Initiate compliance reviews; (3) Conduct investigations; (4) Consult on compliance within the Department; (5) Seek voluntary resolutions of complaints; (6) Consult and coordinate with the relevant Departmental funding compo- nent, and utilize existing enforcement regulations, such as those that apply to grants, contracts, or other programs and services; (7) In coordination with the relevant component or components of the De- partment, coordinate other appropriate remedial action as the Department deems necessary and as allowed b rograms and services; (7) In coordination with the relevant component or components of the De- partment, coordinate other appropriate remedial action as the Department deems necessary and as allowed by law and applicable regulation; and 45 CFR Subtitle A (10–1–24 Edition) (8) In coordination with the relevant component or components of the De- partment, make enforcement referrals to the Department of Justice. (b) Complaints. Any entity or indi- vidual may file a complaint with OCR alleging a potential violation of Fed- eral health care conscience protection statutes. OCR shall coordinate han- dling of complaints with the relevant Department component(s). The com- plaint filer is not required to be the en- tity whose rights under the Federal health care conscience protection stat- utes have been potentially violated. (c) Compliance reviews. OCR may con- duct compliance reviews of an entity subject to the Federal health care con- science protection statutes, where au- thorized for the funding at issue, to de- termine whether they are complying with Federal health care conscience protection statutes. OCR may initiate a compliance review of an entity sub- ject to the Federal health car nding at issue, to de- termine whether they are complying with Federal health care conscience protection statutes. OCR may initiate a compliance review of an entity sub- ject to the Federal health care con- science protection statutes based on in- formation from a complaint or other source that causes OCR to suspect non- compliance by such entity with the Federal health care conscience protec- tion statutes. history, compliance (d) Investigations. OCR shall make a prompt investigation of a complaint al- leging failure to comply with the Fed- eral health care conscience protection statutes. This investigation may in- clude a review of the pertinent prac- tices, policies, communications, docu- ments, cir- cumstances under which the possible noncompliance occurred, and other fac- tors relevant to determining whether the Department, Department compo- nents, recipient, or sub-recipient has failed to comply. OCR may use fact- finding methods including site visits; interviews with the complainants, De- partment components, recipients, sub- recipients, or third parties; and written data requests. OCR may seek the as- sistance of any State agency. (e) Failure to respond. OCR will adopt a ne nants, De- partment components, recipients, sub- recipients, or third parties; and written data requests. OCR may seek the as- sistance of any State agency. (e) Failure to respond. OCR will adopt a negative inference if, absent good cause, an entity that is subject to the Federal health care conscience protec- tion statutes fails to respond to a re- quest for information or to a data or document request within a reasonable timeframe. 560 Dept. of Health and Human Services § 88.3 (f) Supervision and coordination. If, as a result of an investigation, OCR makes a determination of noncompli- ance with responsibilities under the Federal health care conscience protec- tion statutes, OCR will coordinate and consult with the Departmental compo- nent responsible for the relevant fund- ing to undertake appropriate action with the component to assure compli- ance. (g) Resolution of matters. (1) If an in- vestigation reveals that no action is warranted, OCR will in writing so in- form any party who has been notified by OCR of the existence of the inves- tigation. (2) If an investigation indicates a failure to comply with the Federal health care conscience protection stat- utes, OCR will so inf o has been notified by OCR of the existence of the inves- tigation. (2) If an investigation indicates a failure to comply with the Federal health care conscience protection stat- utes, OCR will so inform the relevant parties and the matter will be resolved by informal means whenever possible. (3) If a matter cannot be resolved by informal means, OCR will coordinate with the relevant Departmental com- ponent to: (i) Utilize existing enforcement regu- lations, such as those that apply to grants, contracts, or other programs and services, or (ii) Withhold relevant funding to the extent authorized under the statutes listed under § 88.1. (4) If a matter cannot be resolved by informal means, OCR may, in coordina- tion with the Office of the General Counsel, refer the matter to the De- partment of Justice to the extent per- mitted by law for proceedings to en- force the statutes listed under § 88.1. § 88.3 Notice of Federal conscience and nondiscrimination laws. (a) In general. OCR considers the posting of a notice consistent with this part as a best practice towards achiev- ing compliance with and educating the public about the Federal health care conscience protection statutes, and en- the posting of a notice consistent with this part as a best practice towards achiev- ing compliance with and educating the public about the Federal health care conscience protection statutes, and en- courages all entities subject to the Federal health care conscience protec- tion statutes to post the model notice provided in appendix A to this part. OCR will consider posting a notice as a factor in any investigation or compli- ance review under this rule. (b) Placement of the notice text. The model notice in appendix A to this part should be posted in the following places, where relevant: (1) On the Department or recipient’s website(s); (2) In a prominent and conspicuous physical location in the Department’s or covered entity’s establishments where notices to the public and notices to its workforce are customarily posted to permit ready observation; (3) In a personnel manual, handbook, orientation materials, trainings, or other substantially similar document likely to be reviewed by members of the covered entity’s workforce; (4) In employment applications to the Department or covered entity, or in ap- plications for participation in a serv- ice, benefit, or other program, includ- i mbers of the covered entity’s workforce; (4) In employment applications to the Department or covered entity, or in ap- plications for participation in a serv- ice, benefit, or other program, includ- ing for training or study; and (5) In any student handbook, orienta- tion materials, or other substantially similar document for students partici- pating in a program of training or study, including for postgraduate in- terns, residents, and fellows. (c) Format of the notice. The text of the notice should be large and con- spicuous enough to be read easily and be presented in a format, location, and manner that impedes or prevents the notice being altered, defaced, removed, or covered by other material. (d) Content of the notice text. A recipi- ent or the Department should consider using the model text provided in appen- dix A to this part for the notice but may tailor its notice to address its par- ticular circumstances and to more spe- cifically address the Federal health care conscience protection statutes covered by this rule that apply to it. Where possible, and where the recipient does not have a conscience-based objec- tion to doing so, the notice should in- clude information abo protection statutes covered by this rule that apply to it. Where possible, and where the recipient does not have a conscience-based objec- tion to doing so, the notice should in- clude information about alternative providers that may offer patients serv- ices the recipient does not provide for reasons of conscience. (e) Combined nondiscrimination notices. The Department and each recipient may post the notice text provided in appendix A of this part, or a notice it drafts itself, along with the content of other notices (such as other non- discrimination notices). 561 § 88.4 45 CFR Subtitle A (10–1–24 Edition) § 88.4 Severability. Any provision of this part held to be invalid or unenforceable either by its terms or as applied to any entity or circumstance shall be construed so as to continue to give the maximum ef- fect to the provision permitted by law, unless such holding shall be one of utter invalidity or unenforceability, in which event such provision shall be severable from this part, which shall remain in full force and effect to the maximum extent permitted by law. A severed provision shall not affect the remainder of this part or the applica- tion of the provision to other p rt, which shall remain in full force and effect to the maximum extent permitted by law. A severed provision shall not affect the remainder of this part or the applica- tion of the provision to other persons or entities not similarly situated or to other, dissimilar circumstances. APPENDIX A TO PART 88—MODEL TEXT: NOTICE OF RIGHTS UNDER FEDERAL CONSCIENCE AND NONDISCRIMINATION LAWS 1395cc(f), 1395x(y)(1), [Name of entity] complies with applicable Federal health care conscience protection statutes, including the Church Amendments, 42 U.S.C. 300a–7; the Coats-Snowe Amend- ment, section 245 of the Public Health Serv- ice Act, 42 U.S.C. 238n; the Weldon Amend- ment, e.g., Consolidated Appropriations Act, 2023, Public Law 117–328, div. H, title V Gen- eral Provisions, section 507(d)(1) (Dec. 29, 2022); Sections 1303(b)(1)(A), (b)(4), and (c)(2)(A), and 1411(b)(5)(A), and 1553 of the ACA, 42 U.S.C. 18023(b)(1)(A), (b)(4), and (c)(2)(A), 18081(b)(5)(A), and 18113; certain Medicare and Medicaid provisions, 42 U.S.C. 1320a–1(h), 1320c–11, 1395i–5, 1395w–22(j)(3)(B), 1395x(e), 1396a(a), 1396a(w)(3), 1396u–2(b)(3)(B), 1397j–1(b), and 14406; the Helms, Biden, 1978, and 1985 Amendments, 22 U.S.C provisions, 42 U.S.C. 1320a–1(h), 1320c–11, 1395i–5, 1395w–22(j)(3)(B), 1395x(e), 1396a(a), 1396a(w)(3), 1396u–2(b)(3)(B), 1397j–1(b), and 14406; the Helms, Biden, 1978, and 1985 Amendments, 22 U.S.C. 2151b(f), accord, e.g., Consolidated Appropriations Act, 2023, Pub- lic Law 117–328, div. K, title VII, section 7018 (Dec. 29, 2022); 22 U.S.C. 7631(d); 42 U.S.C. 280g–1(d), 290bb–36(f), 1396f, 1396s(c)(2)(B)(ii); 5106i(a)); and 29 U.S.C. 669(a)(5). More infor- mation to help entities determine which statutes are applicable to them is available at https://www.hhs.gov/conscience/conscience- protections/index.html. You may have rights as a provider, patient, or other individual under these Federal statutes, which prohibit coercion or other discrimination on the basis of conscience, whether based on religious be- liefs or moral convictions, in certain cir- cumstances. If you believe that [Name of en- tity] has violated any of these provisions, you may file a complaint with the U.S. De- partment of Health and Human Services, Of- fice for Civil Rights, electronically through the Office for Civil Rights Complaint Portal, https://www.hhs.gov/ocr/com- available at plaints/index.html or by ma ment of Health and Human Services, Of- fice for Civil Rights, electronically through the Office for Civil Rights Complaint Portal, https://www.hhs.gov/ocr/com- available at plaints/index.html or by mail or phone at: U.S. Department of Health and Human Services, 200 Independence Avenue SW, Room 509F, HHH Building, Washington, DC 20201, 1–800– 368–1019, 800–537–7697 (TDD) or by email at ocrmail@hhs.gov. Complaint forms and more information about Federal conscience pro- laws are available at https:// tection www.hhs.gov/conscience. PART 89—ORGANIZATIONAL IN- TEGRITY OF IMPLE- MENTING PROGRAMS AND AC- TIVITIES UNDER THE LEADERSHIP ACT ENTITIES Sec. 89.1 Applicability and requirements. 89.2 Definitions. 89.3 Organizational integrity of recipients. AUTHORITY: Section 301(f) of the Leadership Act, Pub. L. 108–25, as amended (22 U.S.C. 7631(f)) and 5 U.S.C. 301. SOURCE: 75 FR 18763, Apr. 13, 2010, unless otherwise noted. § 89.1 Applicability and requirements. (a) This regulation applies to all re- cipients unless they are exempted from the policy requirement by the Leader- ship Act or other statute. (b) The Department of Health and Human Services (HHS) components shall include in the publi re- cipients unless they are exempted from the policy requirement by the Leader- ship Act or other statute. (b) The Department of Health and Human Services (HHS) components shall include in the public announce- ment of the availability of the grant, cooperative agreement, contract, or other funding instrument involving Leadership Act HIV/AIDS funds the re- quirement that recipients agree that they are opposed to the practices of prostitution and sex trafficking be- cause of the psychological and physical risks they pose for women, men, and children. This requirement shall also be included in the award documents for any grant, cooperative agreement or other funding instrument involving Leadership Act HIV/AIDS funds en- tered into with the recipient. § 89.2 Definitions. For the purposes of this part: Commercial sex act means any sex act on account of which anything of value is given to or received by any person. Leadership Act means the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 562 Dept. of Health and Human Services Pt. 90 Public Law 108–25, as amended (22 U.S.C. 7601–7682). Prostitution means procuring or pro- viding any commercial sex act. R losis, and Malaria Act of 2003, 562 Dept. of Health and Human Services Pt. 90 Public Law 108–25, as amended (22 U.S.C. 7601–7682). Prostitution means procuring or pro- viding any commercial sex act. Recipients are contractors, grantees, applicants or awardees who receive Leadership Act funds for HIV/AIDS programs directly or indirectly from HHS. Sex trafficking means the recruit- ment, harboring, transportation, provi- sion, or obtaining of a person for the purpose of a commercial sex act. § 89.3 Organizational integrity of re- cipients. A recipient must have objective in- tegrity and independence from any af- filiated organization that engages in activities inconsistent with the recipi- ent’s opposition to the practices of prostitution and sex trafficking be- cause of the psychological and physical risks they pose for women, men and children (‘‘restricted activities’’). A re- cipient will be found to have objective integrity and independence from such an organization if: (a) The affiliated organization re- ceives no transfer of Leadership Act HIV/AIDS funds, and Leadership Act HIV/AIDS funds do not subsidize re- stricted activities; and (b) The recipient is, to the extent practica iated organization re- ceives no transfer of Leadership Act HIV/AIDS funds, and Leadership Act HIV/AIDS funds do not subsidize re- stricted activities; and (b) The recipient is, to the extent practicable in the circumstances, sepa- rate from the affiliated organization. Mere bookkeeping separation of Lead- ership Act HIV/AIDS funds from other funds is not sufficient. HHS will deter- mine, on a case-by-case basis and based on the totality of the facts, whether sufficient separation exists. The pres- ence or absence of any one or more fac- tors relating to legal, physical, and fi- nancial separation will not be deter- minative. Factors relevant to this de- termination shall include, but not be limited to, the following: (1) Whether the organization is a le- gally separate entity; (2) The existence of separate per- sonnel or other allocation of personnel that maintains adequate separation of the activities of the affiliated organiza- tion from the recipient; (3) The existence of separate account- ing and timekeeping records; (4) The degree of separation of the re- cipient’s facilities from facilities in which restricted activities occur; and (5) The extent to which signs and other for account- ing and timekeeping records; (4) The degree of separation of the re- cipient’s facilities from facilities in which restricted activities occur; and (5) The extent to which signs and other forms of identification that dis- tinguish the recipient from the affili- ated organization are present. PART 90—NONDISCRIMINATION ON THE BASIS OF AGE IN PRO- GRAMS OR ACTIVITIES RECEIV- ING FEDERAL FINANCIAL ASSIST- ANCE Subpart A—General Sec. 90.1 What is the purpose of the Age Dis- crimination Act of 1975? 90.2 What is the purpose of these regula- tions? 90.3 What programs or activities does the Age Discrimination Act of 1975 cover? 90.4 How are the terms in the regulations defined? Subpart B—What is Age Discrimination? STANDARDS FOR DETERMINING DISCRIMINATORY PRACTICES 90.11 Purpose of this subpart. 90.12 Rules against age discrimination. 90.13 Definitions of normal operation and statutory objective. 90.14 Exceptions to the rules against age discrimination. Normal operation or statutory objective of any program or ac- tivity. 90.15 Exceptions to the rules against age discrimination. Reasonable factors other than age. 90.16 Burden of proof. Subpart C—What are the Responsibilities of th bjective of any program or ac- tivity. 90.15 Exceptions to the rules against age discrimination. Reasonable factors other than age. 90.16 Burden of proof. Subpart C—What are the Responsibilities of the Federal Agencies? 90.31 Issuance of regulations. 90.32 Review of agency policies and adminis- trative practices. 90.33 Interagency cooperation. 90.34 Agency reports. Subpart D—Investigation, Conciliation and Enforcement Procedures 90.41 What is the purpose of this subpart? 90.42 What responsibilities do recipients and agencies have generally to ensure com- pliance with the Act? 90.43 What specific responsibilities do agen- cies and recipients have to ensure com- pliance with the Act? 90.44 Compliance reviews. 90.45 Information requirements. 563 § 90.1 45 CFR Subtitle A (10–1–24 Edition) 90.46 Prohibition against intimidation or retaliation. 90.47 What further provisions must an agen- cy make in order to enforce its regula- tions after an investigation indicates that a violation of the Act has been com- mitted? 90.48 Alternate funds disbursal procedure. 90.49 Remedial and affirmative action by re- cipients. 90.50 Exhaustion of administrative rem- edies. Subpart E—Future Review of Age t has been com- mitted? 90.48 Alternate funds disbursal procedure. 90.49 Remedial and affirmative action by re- cipients. 90.50 Exhaustion of administrative rem- edies. Subpart E—Future Review of Age Discrimination Regulations 90.61 Review of general regulations. 90.62 Review of agency regulations. AUTHORITY: Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101 et seq. SOURCE: 44 FR 33776, June 12, 1979, unless otherwise noted. Subpart A—General § 90.1 What is the purpose of the Age Discrimination Act of 1975? The Age Discrimination Act of 1975, as amended, is designed to prohibit dis- crimination on the basis of age in pro- grams or activities receiving Federal financial assistance. The Act also per- mits federally assisted programs or ac- tivities, and recipients of Federal funds, to continue to use certain age distinctions and factors other than age which meet the requirements of the Act and these regulations. [44 FR 33776, June 12, 1979, as amended at 70 FR 24321, May 9, 2005] § 90.2 What is the purpose of these reg- ulations? (a) The purpose of these regulations is to state general, government-wide rules for the implementation of the Age Discrimination Act of 1975, as am ] § 90.2 What is the purpose of these reg- ulations? (a) The purpose of these regulations is to state general, government-wide rules for the implementation of the Age Discrimination Act of 1975, as amended, and to guide each agency in the preparation of agency-specific age discrimination regulations. (b) These regulations apply to each Federal agency which provides Federal financial assistance to any program or activity. § 90.3 What programs or activities does the Age Discrimination Act of 1975 cover? (a) The Age Discrimination Act of 1975 applies to any program or activity receiving Federal financial assistance, including programs or activities re- ceiving funds under the State and Local Fiscal Assistance Act of 1972 (31 U.S.C. 1221 et seq.). (b) The Age Discrimination Act of 1975 does not apply to: (1) An age distinction contained in that part of a Federal, State or local statute or ordinance adopted by an elected, general purpose legislative body which: (i) Provides any benefits or assist- ance to persons based on age; or (ii) Establishes criteria for participa- tion in age-related terms; or (iii) Describes intended beneficiaries or target groups in age-related terms. (2) Any em assist- ance to persons based on age; or (ii) Establishes criteria for participa- tion in age-related terms; or (iii) Describes intended beneficiaries or target groups in age-related terms. (2) Any employment practice of any employer, employment agency, labor organization, or any labor-manage- ment joint apprenticeship training pro- gram, except for any program or activ- ity receiving Federal financial assist- ance for public service employment under the Comprehensive Employment and Training Act of 1974 (CETA), (29 U.S.C. 801 et seq.). § 90.4 How are the terms in these regu- lations defined? As used in these regulations, the term: Act means the Age Discrimination Act of 1975, as amended, (Title III of Pub. L. 94–135). Action means any act, activity, pol- icy, rule, standard, or method of ad- ministration; or the use of any policy, rule, standard, or method of adminis- tration. Age means how old a person is, or the number of elapsed years form the date of a person’s birth. Age distinction means any action using age or an age-related term. Age-related term means a word or words which necessarily imply a par- ticular age or range of ages (for exam- ple, children, adult, older persons, on means any action using age or an age-related term. Age-related term means a word or words which necessarily imply a par- ticular age or range of ages (for exam- ple, children, adult, older persons, but not student). Agency means a Federal department or agency that is empowered to extend financial assistance. Federal financial assistance means any grant, entitlement, loan, cooperative 564 Dept. of Health and Human Services § 90.12 agreement, contract (other than a pro- curement contract or a contract of in- surance or guaranty), or any other ar- rangement by which the agency pro- vides or otherwise makes available as- sistance in the form of: (a) Funds; (b) Services of Federal personnel; or (c) Real and personal property or any interest in or use of property, includ- ing: (1) Transfers or leases of property for less than fair market value or for re- duced consideration; and (2) Proceeds from a subsequent trans- fer or lease of property if the Federal share of its fair market value is not re- turned to the Federal Government. Program or activity means all of the operations of— (a)(1) A department, agency, special purpose district, or other instrumen- tality of a State or of a loca not re- turned to the Federal Government. Program or activity means all of the operations of— (a)(1) A department, agency, special purpose district, or other instrumen- tality of a State or of a local govern- ment; or (2) The entity of such State or local government that distributes Federal fi- nancial assistance and each such de- partment or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; (b)(1) A college, university, or other postsecondary institution, or a public system of higher education; or (2) A local educational agency (as de- fined in 20 U.S.C. 7801), system of voca- tional education, or other school sys- tem; (c)(1) An entire corporation, partner- ship, or other private organization, or an entire sole proprietorship— (i) If assistance is extended to such corporation, partnership, private orga- nization, or sole proprietorship as a whole; or (ii) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (2) The entire plant or other com- parable, geographically separate facil- ity to which Fed d in the business of providing education, health care, housing, social services, or parks and recreation; or (2) 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 (d) Any other entity which is estab- lished by two or more of the entities described in paragraph (a), (b), or (c) of this definition; any part of which is ex- tended Federal financial assistance. Recipient means any State or its po- litical subdivision, any instrumen- tality of a State or its political sub-di- vision, 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. Recipient includes any successor, assignee, or transferee, but excludes the ultimate beneficiary of the assistance. Secretary means the Secretary of the Department of Health and Human Services. United States means the fifty States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, the Trust Terr artment of Health and Human Services. United States means the fifty States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, the Trust Territory of the Pacific Is- lands, the Northern Marianas, and the territories and possessions of the United States. (42 U.S.C. 6107) [44 FR 33776, June 12, 1979, as amended at 70 FR 24321, May 9, 2005] Subpart B—What is Age Discrimination? STANDARDS FOR DETERMINING DISCRIMINATORY PRACTICES § 90.11 Purpose of this subpart. The purpose of this subpart is to set forth the prohibitions against age dis- crimination and the exceptions to those prohibitions. § 90.12 Rules against age discrimina- tion. The rules stated in this section are limited by the exceptions contained in §§ 90.14, and 90.15 of these regulations. (a) General rule: No person in the United states shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance. (b) Specific rules: A recipient may not, in any program or activity receiving Federal financial assistance, directly or through contractual, rogram or activity receiving Federal financial assistance. (b) Specific rules: A recipient may not, in any program or activity receiving Federal financial assistance, directly or through contractual, licensing, or 565 § 90.13 45 CFR Subtitle A (10–1–24 Edition) other arrangements use age distinc- tions or take any other actions which have the effect, on the basis of age, of: (1) Excluding individuals from, deny- ing them the benefits of, or subjecting them to discrimination under, a pro- gram or activity receiving Federal fi- nancial assistance, or (2) Denying or limiting individuals in their opportunity to participate in any program or activity receiving Federal financial assistance. (c) The specific forms of age discrimi- nation listed in paragraph (b) of this section do not necessarily constitute a complete list. § 90.13 Definitions of normal operation and statutory objective. For purposes of §§ 90.14, and 90.15, the terms normal operation and statutory ob- jective shall have the following mean- ing: (a) Normal operation means the oper- ation of a program or activity without significant changes that would impair its ability to meet its objectives. (b) Statutory objective means a llowing mean- ing: (a) Normal operation means the oper- ation of a program or activity without significant changes that would impair its ability to meet its objectives. (b) Statutory objective means any pur- pose of a program or activity expressly stated in any Federal statute, State statute, or local statute or ordinance adopted by an elected, general purpose legislative body. § 90.14 Exceptions to the rules against age discrimination. Normal oper- ation or statutory objective of any program or activity. A recipient is permitted to take an action, otherwise prohibited by § 90.12, if the action reasonably takes into ac- count age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity. An action reasonably takes into account age as a factor necessary to the normal operation or the achieve- ment of any statutory objective of a program or activity, if: (a) Age is used as a measure or ap- proximation of one or more other char- acteristics; and (b) The other characteristic(s) must be measured or approximated in order for the normal operation of the pro- gram or activity to continue, or to achieve any statutory objective of th cteristics; and (b) The other characteristic(s) must be measured or approximated in order for the normal operation of the pro- gram or activity to continue, or to achieve any statutory objective of the program or activity; and (c) The other characteristic(s) can be reasonably measured or approximated by the use of age; and (d) The other characteristic(s) are impractical to measure directly on an individual basis. § 90.15 Exceptions to the rules against age discrimination. Reasonable fac- tors other than age. A recipient is permitted to take an action otherwise prohibited by § 90.12 which is based on a factor other than age, even though that action may have a disproportionate effect on persons of different ages. An action may be based on a factor other than age only if the factor bears a direct and substantial relationship to the normal operation of the program or activity or to the achievement of a statutory objective. § 90.16 Burden of proof. The burden of proving that an age distinction or other action falls within the exceptions outlined in §§ 90.14 and 90.15 is on the recipient of Federal fi- nancial assistance. Subpart C—What are the Respon- sibilities of the Federal Agen- cie ion or other action falls within the exceptions outlined in §§ 90.14 and 90.15 is on the recipient of Federal fi- nancial assistance. Subpart C—What are the Respon- sibilities of the Federal Agen- cies? § 90.31 Issuance of regulations. (a) The head of each agency which ex- tends Federal financial assistance to any program or activity shall publish proposed and final age discrimination regulations in the FEDERAL REGISTER to: (1) Carry out the provisions of sec- tion 303 of the Age Discrimination Act of 1975; and (2) Provide for appropriate investiga- tive, conciliation, and enforcement procedures. (b) Each agency shall publish its pro- posed agency age discrimination regu- lations no later than 90 days after the publication date of the final general, government-wide age discrimination regulations. (c) Each agency shall submit its final agency regulations to HHS for review no later than 120 days after publication of proposed agency age discrimination regulations. (d) Final agency age discrimination regulations shall be consistent with 566 Dept. of Health and Human Services § 90.34 these general, government-wide age discrimination regulations and shall not be published until the Secre crimination regulations shall be consistent with 566 Dept. of Health and Human Services § 90.34 these general, government-wide age discrimination regulations and shall not be published until the Secretary approves them. (e) Each agency shall include in its regulations a provision governing the operation of an alternate funds dis- bursal procedure as described in § 90.48 of these regulations. (f) Each agency shall publish an ap- pendix to its final age discrimination regulations containing a list of each age distinction provided in a Federal statute or in regulations affecting fi- nancial assistance administered by the agency. § 90.32 Review of agency policies and administrative practices. (a) Each agency shall conduct a re- view of age distinctions it imposes on its recipients by regulations, policies, and administrative practices. The pur- pose of this review is to identify how age distinctions are used by each Fed- eral agency and whether those age dis- tinctions are permissible under the Act and implementing regulations. (b) No later than 12 months from the date the agency published its final reg- ulations, the agency shall publish, for public comment, a report in the FED- ERAL r the Act and implementing regulations. (b) No later than 12 months from the date the agency published its final reg- ulations, the agency shall publish, for public comment, a report in the FED- ERAL REGISTER containing: (1) The results of the review con- ducted under paragraph (a) of this sec- tion; (2) A list of the age distinctions con- tained in regulations which are to be continued; (3) The justification under the re- quirements of the Act and these regu- lations for each age distinction to be continued; (4) A list of the age distinctions not contained in regulations but which will be adopted by regulation under the Ad- ministrative Procedure Act using the notice and comment procedures speci- fied in 5 U.S.C. 553; and (5) A list of the age distinctions to be eliminated. (c) Beginning with the effective date of an agency’s final regulations, the agency may not impose a new age dis- tinction unless the age distinction is adopted by regulation under the Ad- ministrative Procedure Act using the notice and comment procedures speci- fied in 5 U.S.C. 553. (d) Beginning 12 months after the publication of its age discrimination regulations, an agency may not con- tinue an existing age using the notice and comment procedures speci- fied in 5 U.S.C. 553. (d) Beginning 12 months after the publication of its age discrimination regulations, an agency may not con- tinue an existing age distinction, un- less the age distinction has already been adopted by regulation or is adopt- ed by regulation under the Administra- tive Procedure Act using the notice and comment procedures specified in 5 U.S.C. 553. § 90.33 Interagency cooperation. Where two or more agencies provide Federal financial assistance to a recipi- ent or class of recipients, the Secretary may designate one of the agencies as the sole agency for all compliance and enforcement purposes with respect to those recipients, except for the order- ing of termination of funds and the no- tification of the appropriate commit- tees of Congress. § 90.34 Agency reports. Each agency shall submit to the Sec- retary not later than December 31 of each year, beginning in 1979, a report which: (a) Describes in detail the steps taken during the preceding fiscal year to carry out the Act; and (b) Contains data on the frequency, type, and resolution of complaints and on any compliance reviews, sufficient to permit analysis of th ken during the preceding fiscal year to carry out the Act; and (b) Contains data on the frequency, type, and resolution of complaints and on any compliance reviews, sufficient to permit analysis of the agency’s progress in reducing age discrimina- tion in programs or activities receiving Federal financial assistance from the agency; and (c) Contains data directly relevant to the extent of any pattern or practice of age discrimination which the agency has identified in any programs or ac- tivities receiving Federal financial as- sistance from the agency and to progress toward eliminating it; and (d) Contains evaluative or interpreta- tive information which the agency de- termines is useful in analyzing agency progress in reducing age discrimina- tion in programs or activities receiving Federal financial assistance from the agency; and (e) Contains whatever other data the Secretary may require. [44 FR 33776, June 12, 1979, as amended at 70 FR 24321, May 9, 2005] 567 § 90.41 45 CFR Subtitle A (10–1–24 Edition) Subpart D—Investigation, Concil- iation and Enforcement Pro- cedures § 90.41 What is the purpose of this sub- part? This subpart sets forth requirements for the establishment of le A (10–1–24 Edition) Subpart D—Investigation, Concil- iation and Enforcement Pro- cedures § 90.41 What is the purpose of this sub- part? This subpart sets forth requirements for the establishment of compliance, investigation, conciliation, and en- forcement procedures by agencies which extend Federal financial assist- ance. § 90.42 What responsibilities do recipi- ents and agencies have generally to ensure compliance with the Act? (a) A recipient has primary responsi- bility to ensure that its programs or activities are in compliance with the Age Discrimination Act and shall take steps to eliminate violations of the Act. A recipient also has responsibility to maintain records, provide informa- tion, and to afford access to its records to an agency to the extent required to determine whether it is in compliance with the Act. (b) An agency has responsibility to attempt to secure recipient compliance with the Act by voluntary means. This may include the use of the services of appropriate Federal, State, local, or private organizations. An agency also has the responsibility to enforce the Age Discrimination Act when a recipi- ent fails to eliminate violations of the Act. [44 FR 33776 e Federal, State, local, or private organizations. An agency also has the responsibility to enforce the Age Discrimination Act when a recipi- ent fails to eliminate violations of the Act. [44 FR 33776, June 12, 1979, as amended at 70 FR 24322, May 9, 2005] § 90.43 What specific responsibilities do agencies and recipients have to ensure compliance with the Act? (a) Written notice, technical assistance, and educational materials. Each agency shall: (1) Provide written notice to each recipient of its obligations under the Act. The notice shall include a re- quirement that where the recipient ini- tially receiving funds makes the funds available to a sub-recipient, the recipi- ent must notify the sub-recipient of its obligations under the Act. (2) Provide technical assistance, where necessary, to recipients to aid them in complying with the Act. (3) Make available educational mate- rials setting forth the rights and obli- gations of beneficiaries and recipients under the Act. (b) Self-evaluation. (1) Each agency shall require each recipient employing the equivalent of 15 or more full time employees to complete a written self- evaluation of its compliance under the Act within 18 months uation. (1) Each agency shall require each recipient employing the equivalent of 15 or more full time employees to complete a written self- evaluation of its compliance under the Act within 18 months of the effective date of the agency regulations. (2) Each recipient’s self-evaluation shall identify and justify each age dis- tinction imposed by the recipient. (3) Each recipient shall take correc- tive and remedial action whenever a self-evaluation indicates a violation of the Act. (4) Each recipient shall make the self-evaluation available on request to the agency and to the public for a pe- riod of 3 years following its comple- tion. (c) Complaints—(1) Receipt of com- plaints. Each agency shall establish a complaint processing procedure which includes the following: (i) A procedure for the filing of com- plaints with the agency; (ii) A review of complaints to assure that they fall within the coverage of the Act and contain all information necessary for further processing; (iii) Notice to the complainant and the recipient of their rights and obliga- tions under the complaint procedure, including the right to have a represent- ative at all stages of the complaint procedure; and (iv) to the complainant and the recipient of their rights and obliga- tions under the complaint procedure, including the right to have a represent- ative at all stages of the complaint procedure; and (iv) Notice to the complainant and the recipient (or their representatives) of their right to contact the agency for information and assistance regarding the complaint resolution process. (2) Prompt resolution of complaints. Each agency shall establish procedures for the prompt resolution of com- plaints. These procedures shall require each recipient and complainant to par- ticipate actively in efforts toward speedy resolution of the complaint. (3) Mediation of complaints. Each agency shall promptly refer all com- plaints which fall within the coverage of the Act to a mediation agency des- ignated by the Secretary. (i) The referring agency shall require the participation of the recipient and the complainant in the mediation proc- ess, although both parties need not 568 Dept. of Health and Human Services § 90.47 meet with the mediator at the same time. (ii) If the complainant and recipient reach a mutually satisfactory resolu- tion of the complaint during the medi- ation period, they shall n Services § 90.47 meet with the mediator at the same time. (ii) If the complainant and recipient reach a mutually satisfactory resolu- tion of the complaint during the medi- ation period, they shall reduce the agreement to writing. The mediator shall send a copy of the settlement to the referring agency. No further action shall be taken based on that complaint unless it appears that the complainant or the recipient is failing to comply with the agreement. (iii) Not more than 60 days after the agency receives the complaint, the me- diator shall return a still unresolved complaint to the referring agency for initial investigation. The mediator may return a complaint at any time before the end of the 60 day period if it appears that the complaint cannot be resolved through mediation. (iv) The mediator shall protect the confidentiality of all information ob- tained in the course of the mediation process. No mediator shall testify in any adjudicative proceeding, produce any document, or otherwise disclose any information obtained in the course of the mediation process without prior approval of the head of the agency ap- pointing the mediator. (4) Federal initial investigation. Each age herwise disclose any information obtained in the course of the mediation process without prior approval of the head of the agency ap- pointing the mediator. (4) Federal initial investigation. Each agency shall investigate complaints unresolved after mediation or reopened because of a violation of the mediation agreement. As part of the initial inves- tigation, the agency shall use informal fact finding methods including joint or individual discussions with the com- plainant and the recipient to establish the facts, and, if possible, resolve the complaint to the mutual satisfaction of the parties. The agency may seek the assistance of any involved State agen- cy. (5) Formal investigation, conciliation, and hearing. If the agency cannot re- solve the complaint during the early stages of the investigation, it shall: (i) Complete the investigation of the complaint. (ii) Attempt to achieve voluntary compliance satisfactory to the agency, if the investigation indicates a viola- tion. (iii) Arrange for enforcement as de- scribed in § 90.47, if necessary. [44 FR 33776, June 12, 1979, as amended at 70 FR 24322, May 9, 2005] § 90.44 Compliance reviews. (a) Each agency shall provide in its re rrange for enforcement as de- scribed in § 90.47, if necessary. [44 FR 33776, June 12, 1979, as amended at 70 FR 24322, May 9, 2005] § 90.44 Compliance reviews. (a) Each agency shall provide in its regulations that it may conduct com- pliance reviews, pre-award reviews, and other similar procedures which permit the agency to investigate, and correct, violations of the Act without regard to its procedures for handling complaints. (b) If a compliance review or pre- award review indicates a violation of the Act, the agency shall attempt to achieve voluntary compliance with the Act. If voluntary compliance cannot be achieved, the agency shall arrange for enforcement as described in § 90.47. § 90.45 Information requirements. Each agency shall provide in its regu- lations a requirement that the recipi- ent: (a) Provide to the agency informa- tion necessary to determine whether the recipient is in compliance with the Act; and (b) Permit reasonable access by the agency to the books, records, accounts, facilities and and other recipient sources of information to the extent necessary to determine whether a re- cipient is in compliance with the Act. § 90.46 Prohibition against intimida- tion ccounts, facilities and and other recipient sources of information to the extent necessary to determine whether a re- cipient is in compliance with the Act. § 90.46 Prohibition against intimida- tion or retaliation. Each agency shall provide in its regu- lations that recipients may not engage in acts of intimidation or retaliation against any person who: (a) Attempts to assert a right pro- tected by the Act; or (b) Cooperates in any mediation, in- vestigation, hearing, or other part of the agency’s investigation, concilia- tion, and enforcement process. § 90.47 What further provisions must an agency make in order to enforce its regulations after an investiga- tion indicates that a violation of the Act has been committed? (a) Each agency shall provide for en- forcement of its regulations through: 569 § 90.48 45 CFR Subtitle A (10–1–24 Edition) (1) Termination of a recipient’s Fed- eral financial assistance under the pro- gram or activity involved where the re- cipient has violated the Act or the agency’s regulations. The determina- tion of the recipient’s violation may be made only after a recipient has had an opportunity for a hearing on the record before an administrative law judg ct or the agency’s regulations. The determina- tion of the recipient’s violation may be made only after a recipient has had an opportunity for a hearing on the record before an administrative law judge. (2) Any other means authorized by law including but not limited to: (i) Referral to the Department of Jus- tice for proceedings to enforce any rights of the United States or obliga- tions of the recipient created by the Act or the agency’s regulations. (ii) Use of any requirement of or re- ferral to any Federal, State, or local government agency which will have the effect of correcting a violation of the Act or implementing regulations. (b) Any termination under paragraph (a)(1) shall be limited to the particular recipient and particular program or ac- tivity receiving Federal financial as- sistance or portion thereof found to be in violation of the Act or agency regu- lations. No termination shall be based in whole or in part on a finding with respect to any program or activity which does not receive Federal finan- cial assistance. (c) No action under paragraph (a) of this section may be taken until: (1) The head of the agency involved has advised the recipient of its failure to co oes not receive Federal finan- cial assistance. (c) No action under paragraph (a) of this section may be taken until: (1) The head of the agency involved has advised the recipient of its failure to comply with the Act or the agency’s regulations and has determined that voluntary compliance cannot be ob- tained. (2) Thirty days have elapsed after the head of the agency involved has sent a written report of the circumstances and grounds of the action to the com- mittees of the Congress having legisla- tive jurisdiction over the program or activity involved. A report shall be filed whenever any action is taken under paragraph (a) of this section. (d) An agency may defer granting new Federal financial assistance to a recipient when pro- ceedings under paragraph (a)(1) of this section are initiated. termination (1) New Federal financial assistance includes all assistance administered by or through the agency for which an ap- plication or approval, including re- newal or continuation of existing ac- tivities, or authorization of new activi- ties, is required during the deferral pe- riod. New Federal financial assistance does not include assistance approved prior to the beginning of termi ting ac- tivities, or authorization of new activi- ties, is required during the deferral pe- riod. New Federal financial assistance does not include assistance approved prior to the beginning of termination proceedings or to increases in funding as a result of changed computation of formula awards. (2) A deferral may not begin until the recipient has received a notice of op- portunity for a hearing under para- graph (a)(1). A deferral may not con- tinue for more than 60 days unless a hearing has begun within that time or the time for beginning the hearing has been extended by mutual consent of the recipient and the agency. A defer- ral may not continue for more than 30 days after the close of the hearing, un- less the hearing results in a finding against the recipient. [44 FR 33776, June 12, 1979, as amended at 70 FR 24322, May 9, 2005] § 90.48 Alternate funds disbursal pro- cedure. When an agency withholds funds from a recipient under its regulations issued under § 90.31, the head of the agency may disburse the withheld funds so directly to any public or non- profit private organization or agency, or State or political subdivision of the State. These alternate recipients must demo the agency may disburse the withheld funds so directly to any public or non- profit private organization or agency, or State or political subdivision of the State. These alternate recipients must demonstrate the ability to comply with the agency’s regulations issued under this Act and to achieve the goals of the Federal statute authorizing the Fed- eral financial assistance. [44 FR 33776, June 12, 1979, as amended at 70 FR 24322, May 9, 2005] § 90.49 Remedial and affirmative ac- tion by recipients. (a) Where a recipient is found to have discriminated on the basis of age, the recipient shall take any remedial ac- tion which the agency may require to overcome the effects of the discrimina- tion. If another recipient exercises con- trol over the recipient that has dis- criminated, both recipients may be re- quired to take remedial action. (b) Even in the absence of a finding of discrimination, a recipient may take affirmative action to overcome the ef- fects of conditions that resulted in lim- ited participation in the recipient’s program or activity on the basis of age. 570 Dept. of Health and Human Services Pt. 91 (c) If a recipient operating a program or activity which serves the e lim- ited participation in the recipient’s program or activity on the basis of age. 570 Dept. of Health and Human Services Pt. 91 (c) If a recipient operating a program or activity which serves the elderly or children in addition to persons of other ages, provides special benefits to the elderly or to children the provision of those benefits shall be presumed to be voluntary affirmative action provided that it does not have the effect of ex- cluding otherwise eligible persons from participation in the program or activ- ity. [44 FR 33776, June 12, 1979, as amended at 70 FR 24322, May 9, 2005] § 90.50 Exhaustion of administrative remedies. (a) The agency shall provide in its regulations that a complainant may file a civil action following the exhaus- tion of adminstrative remedies under the Act. Administrative remedies are exhausted if: (1) 180 days have elapsed since the complainant filed the complaint and the agency has made no finding with regard to the complaint; or (2) The agency issues any finding in favor of the recipient. (b) If either of the conditions set forth in § 90.50(a) is satisfied the agency shall: (1) Promptly advise the complainant of this fact; and (2) Advise the ssues any finding in favor of the recipient. (b) If either of the conditions set forth in § 90.50(a) is satisfied the agency shall: (1) Promptly advise the complainant of this fact; and (2) Advise the complainant of his or her right, under section 305(e) of the Act, to bring a civil action for injunc- tive relief that will effect the purposes of the Act; and (3) Inform the complainant: (i) That a civil action can only be brought in a United States district court for the district in which the re- cipient is found or transacts business; (ii) That a complainant prevailing in a civil action has the right to be awarded the costs of the action, includ- ing reasonable attorney’s fees, but that these costs must be demanded in the complaint; (iii) That before commencing the ac- tion the complainant shall give 30 days notice by registered mail to the Sec- retary, the Attorney General of the United States, the head of the granting agency, and the recipient; (iv) That the notice shall state: the alleged violation of the Act; the relief requested; the court in which the ac- tion will be brought; and whether or not attorney’s fees are demanded in the event the complainant prevails; and (v) That lleged violation of the Act; the relief requested; the court in which the ac- tion will be brought; and whether or not attorney’s fees are demanded in the event the complainant prevails; and (v) That no action shall be brought if the same alleged violation of the Act by the same recipient is the subject of a pending action in any court of the United States. Subpart E—Future Review of Age Discrimination Regulations § 90.61 Review of general regulations. The Secretary shall review the effec- tiveness of these regulations in secur- ing compliance with the Act. As part of this review, 30 months after the effec- tive date of these regulations, the Sec- retary shall publish a notice of oppor- tunity for public comment on the effec- tiveness of the regulations. The Sec- retary will assess the comments and publish the results of the review and assessment in the FEDERAL REGISTER. § 90.62 Review of agency regulations. Each agency shall review the effec- tiveness of its regulations in securing compliance with the Act. As part of this review, 30 months after the effec- tive date of its regulations, each agen- cy shall publish a notice of opportunity for public comment on the effective- ness of mpliance with the Act. As part of this review, 30 months after the effec- tive date of its regulations, each agen- cy shall publish a notice of opportunity for public comment on the effective- ness of the agency regulations. Each agency shall assess the comments and publish the results of the review in the FEDERAL REGISTER. PART 91—NONDISCRIMINATION ON THE BASIS OF AGE IN PRO- GRAMS OR ACTIVITIES RECEIV- ING FEDERAL FINANCIAL ASSIST- ANCE FROM HHS Subpart A—General Sec. 91.1 What is the purpose of the Age Dis- crimination Act of 1975? 91.2 What is the purpose of HHS’ age dis- crimination regulations? 91.3 To what programs or activities do these regulations apply? 91.4 Definition of terms used in these regu- lations. Subpart B—Standards for Determining Age Discrimination 91.11 Rules against age discrimination. 571 § 91.1 45 CFR Subtitle A (10–1–24 Edition) 91.12 Definitions of normal operation and statutory objective. 91.13 Exceptions to the rules against age discrimination: Normal operation or statutory objective of any program or ac- tivity. 91.14 Exceptions to the rules against age discrimination: Reasonable factors other than age. 91.15 Burden of proof. 91.16 Affirmative action ation or statutory objective of any program or ac- tivity. 91.14 Exceptions to the rules against age discrimination: Reasonable factors other than age. 91.15 Burden of proof. 91.16 Affirmative action by recipient. 91.17 Special benefits for children and the elderly. 91.18 Age distinctions contained in HHS regulations. Subpart C—Duties of HHS Recipients 91.31 General responsibilities. 91.32 Notice to subrecipients and bene- ficiaries. 91.33 Assurance of compliance and recipient assessment of age distinctions. Information requirements. 91.34 Subpart D—Investigation, Conciliation, and Enforcement Procedures 91.41 Compliance reviews. 91.42 Complaints. 91.43 Mediation. 91.44 91.45 Prohibition against intimidation or Investigation. retaliation. 91.46 Compliance procedure. 91.47 Hearings, decisions, post-termination proceedings. 91.48 Remedial action by recipient. 91.49 Alternate funds disbursal procedure. 91.50 Exhaustion of administrative rem- edies. AUTHORITY: Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101 et seq. (45 CFR part 90). SOURCE: 47 FR 57858, Dec. 28, 1982, unless otherwise noted. Subpart A—General § 91.1 What is the purpose of the Age Discrimination Act of 1975? 5, as amended, 42 U.S.C. 6101 et seq. (45 CFR part 90). SOURCE: 47 FR 57858, Dec. 28, 1982, unless otherwise noted. Subpart A—General § 91.1 What is the purpose of the Age Discrimination Act of 1975? The Age Discrimination Act of 1975, as amended, is designed to prohibit dis- crimination on the basis of age in pro- grams or activities receiving Federal financial assistance. The Act also per- mits federally assisted programs or ac- tivities, and recipients of Federal funds, to continue to use certain age distinctions and factors other than age which meet the requirements of the Act and these regulations. [47 FR 57858, Dec. 28, 1982, as amended at 70 FR 24322, May 9, 2005] § 91.2 What is the purpose of HHS’ age discrimination regulations? The purpose of these regulations is to set out HHS’ policies and procedures under the Age Discrimination Act of 1975 and the general age discrimination regulations at 45 CFR part 90. 1 The Act and the general regulations prohibit discrimination on the basis of age in programs or activities receiving Fed- eral financial assistance. The Act and the general regulations permit feder- ally assisted programs or activities, and recipients of Federal funds, asis of age in programs or activities receiving Fed- eral financial assistance. The Act and the general regulations permit feder- ally assisted programs or activities, and recipients of Federal funds, to con- tinue to use age distinctions and fac- tors other than age which meet the re- quirements of the Act and its imple- menting regulations. [47 FR 57858, Dec. 28, 1982, as amended at 70 FR 24322, May 9, 2005] § 91.3 To what programs or activities do these regulations apply? (a) The Act and these regulations apply to each HHS recipient and to each program or activity operated by the recipient which receives Federal fi- nancial assistance provided by HHS. (b) The Act and these regulations do not apply to: (1) An age distinction contained in that part of a Federal, State, or local statute or ordinance adopted by an elected, general purpose legislative body which: (i) Provides any benefits or assist- ance to persons based on age; or (ii) Establishes criteria for participa- tion in age-related terms; or (iii) Describes intended beneficiaries or target groups in age-related terms. (2) Any employment practice of any employer, employment agency, labor organization, or any labor-manage- me ated terms; or (iii) Describes intended beneficiaries or target groups in age-related terms. (2) Any employment practice of any employer, employment agency, labor organization, or any labor-manage- ment joint apprenticeship training pro- gram, except for any program or activ- ity receiving Federal financial assist- ance for public service employment under the Comprehensive Employment 1 Published at 44 FR 33768, June 12, 1979. 572 Dept. of Health and Human Services § 91.4 and Training Act (CETA), (29 U.S.C. 801 et seq.) [47 FR 57858, Dec. 28, 1982, as amended at 70 FR 24322, May 9, 2005] § 91.4 Definition of terms used in these regulations. As used in these regulations, the term: Act means the Age Discrimination Act of 1975, as amended, (Title III of Pub. L. 94–135). Action means any act, activity, pol- icy, rule, standard, or method of ad- ministration; or the use of any policy, rule, standard, or method of adminis- tration. Age means how old a person is, or the number of years from the date of a per- son’s birth. Age distinction means any action using age or an age-related term. Age-related term means a word or words which necessarily imply a par- ticular age or range of ages (for e date of a per- son’s birth. Age distinction means any action using age or an age-related term. Age-related term means a word or words which necessarily imply a par- ticular age or range of ages (for exam- ple, children, adult, older persons, but not student). Agency means a Federal department or agency that is empowered to extend financial assistance. Federal financial assistance means any grant, entitlement, loan, cooperative agreement, contract (other than a pro- curement contract or a contract of in- surance or guaranty), or any other ar- rangement by which the agency pro- vides or otherwise makes available as- sistance in the form of: (a) Funds; or (b) Services of Federal personnel; or (c) Real and personal property or any interest in or use of property, includ- ing: (1) Transfers or leases of property for less than fair market value or for re- duced consideration; and (2) Proceeds from a subsequent trans- fer or lease of property if the Federal share of its fair market value is not re- turned to the Federal Government. HHS means the United States De- partment of Health and Human Serv- ices. Program or activity means all of the operations of— (a)(1) A department, agency, spec not re- turned to the Federal Government. HHS means the United States De- partment of Health and Human Serv- ices. Program or activity means all of the operations of— (a)(1) A department, agency, special purpose district, or other instrumen- tality of a State or of a local govern- ment; or (2) The entity of such State or local government that distributes Federal fi- nancial assistance and each such de- partment or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; (b)(1) A college, university, or other postsecondary institution, or a public system of higher education; or (2) A local educational agency (as de- fined in 20 U.S.C. 7801), system of voca- tional education, or other school sys- tem; (c)(1) An entire corporation, partner- ship, or other private organization, or an entire sole proprietorship— (i) If assistance is extended to such corporation, partnership, private orga- nization, or sole proprietorship as a whole; or (ii) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (2) The entire plan , or sole proprietorship as a whole; or (ii) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (2) 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 (d) Any other entity which is estab- lished by two or more of the entities described in paragraph (a), (b), or (c) of this definition; any part of which is ex- tended Federal financial assistance. 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. Recipient includes any successor, assignee, or transferee, but excludes the ultimate beneficiary of the assistance. Secretary means the Secretary of Health and Human Services, or his or her designee. Subrecipient means any of the entities in the definition of recipient to which a reci beneficiary of the assistance. Secretary means the Secretary of Health and Human Services, or his or her designee. Subrecipient means any of the entities in the definition of recipient to which a recipient extends or passes on Federal financial assistance. A subrecipient is generally regarded as a recipient of Federal financial assistance and has all the duties of a recipient in these regu- lations. 573 § 91.11 45 CFR Subtitle A (10–1–24 Edition) United States means the fifty States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, the Trust Territory of the Pacific Is- lands, the Northern Marianas, and the territories and possessions of the United States. significant changes that would impair its ability to meet its objectives. (b) Statutory objective means any pur- pose of a program or activity expressly stated in any Federal statute, State statute, or local statute or ordinance adopted by an elected, general purpose legislative body. (Authority: 42 U.S.C. 6107) [47 FR 57858, Dec. 28, 1982, as amended at 70 FR 24322, May 9, 2005] Subpart B—Standards for Determining Age Discrimination § 91.11 Rules against age discrimina ative body. (Authority: 42 U.S.C. 6107) [47 FR 57858, Dec. 28, 1982, as amended at 70 FR 24322, May 9, 2005] Subpart B—Standards for Determining Age Discrimination § 91.11 Rules against age discrimina- tion. The rules stated in this section are limited by the exceptions contained in §§ 91.13 and 91.14 of these regulations. (a) General rule: No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance. (b) Specific rules: A recipient may not, in any program or activity receiv- ing Federal financial assistance, di- rectly or through contractual licens- ing, or other arrangements, use age distinctions or take any other actions which have the effect, on the basis of age, of: (1) Excluding individuals from, deny- ing them the benefits of, or subjecting them to discrimination under, a pro- gram or activity receiving Federal fi- nancial assistance; or (2) Denying or limiting individuals in their opportunity to participate in any program or activity receiving Federal financial assistance. (c) The specific forms of age discrimi- ncial assistance; or (2) Denying or limiting individuals in their opportunity to participate in any program or activity receiving Federal financial assistance. (c) The specific forms of age discrimi- nation listed in paragraph (b) of this section do not necessarily constitute a complete list. § 91.12 Definitions of normal operation and statutory objective. For purposes of §§ 91.13 and 91.14, the terms normal operation and statutory ob- jective shall have the following mean- ing: (a) Normal operation means the oper- ation of a program or activity without § 91.13 Exceptions to the rules against age discrimination: Normal oper- ation or statutory objective of any program or activity. A recipient is permitted to take an action, otherwise prohibited by § 91.11, if the action reasonably takes into ac- count age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity. An action reasonably takes into account age as a factor necessary to the normal operation or the achieve- ment of any statutory objective of a program or activity, if: (a) Age is used as a measure or ap- proximation of one or more other char- acteristics; and (b) T to the normal operation or the achieve- ment of any statutory objective of a program or activity, if: (a) Age is used as a measure or ap- proximation of one or more other char- acteristics; and (b) The other characteristic(s) must be measured or approximated in order for the normal operation of the pro- gram or activity to continue, or to achieve any statutory objective of the program or activity; and (c) The other characteristic(s) can be reasonably measured or approximated by the use of age; and (d) The other characteristic(s) are impractical to measure directly on an individual basis. § 91.14 Exceptions to the rules against age discrimination: Reasonable fac- tors other than age. A recipient is permitted to take an action otherwise prohibited by § 91.11 which is based on a factor other than age, even though that action may have a disproportionate effect on persons of different ages. An action may be based on a factor other than age only if the factor bears a direct and substantial relationship to the normal operation of the program or activity or to the achievement of a statutory objective. § 91.15 Burden of proof. The burden of proving that an age distinction or other action f relationship to the normal operation of the program or activity or to the achievement of a statutory objective. § 91.15 Burden of proof. The burden of proving that an age distinction or other action falls within the exceptions outlined in §§ 91.13 and 574 Dept. of Health and Human Services § 91.34 91.14 is on the recipient of Federal fi- nancial assistance. § 91.16 Affirmative action by recipient. Even in the absence of a finding of discrimination, a recipient may take affirmative action to overcome the ef- fects of conditions that resulted in lim- ited participation in the recipient’s program or activity on the basis of age. § 91.17 Special benefits for children and the elderly. If a recipient operating a program or activity provides special benefits to the elderly or to children, such use of age distinctions shall be presumed to be necessary to the normal operation of the program or activity, notwith- standing the provisions of § 91.13. [47 FR 57858, Dec. 28, 1982, as amended at 70 FR 24322, May 9, 2005] § 91.18 Age distinctions contained in HHS regulations. Any age distinctions contained in a rule or regulation issued by HHS shall be presumed to be necessary to the achievement o R 24322, May 9, 2005] § 91.18 Age distinctions contained in HHS regulations. Any age distinctions contained in a rule or regulation issued by HHS shall be presumed to be necessary to the achievement of a statutory objective of the program or activity to which the rule or regulation applies, notwith- standing the provisions of § 91.13. [47 FR 57858, Dec. 28, 1982, as amended at 70 FR 24322, May 9, 2005] Subpart C—Duties of HHS Recipients § 91.31 General responsibilities. Each HHS recipient has primary re- sponsibility to ensure that its pro- grams or activities are in compliance with the Act and these regulations, and shall take steps to eliminate violations of the Act. A recipient also has respon- sibility to maintain records, provide information, and to afford HHS access to its records to the extent HHS finds necessary to determine whether the re- cipient is in compliance with the Act and these regulations. [47 FR 57858, Dec. 28, 1982, as amended at 70 FR 24322, May 9, 2005] § 91.32 Notice to subrecipients and beneficiaries. (a) Where a recipient passes on Fed- eral financial assistance from HHS to subrecipients, the recipient shall pro- vide the subrecipients written notice of th otice to subrecipients and beneficiaries. (a) Where a recipient passes on Fed- eral financial assistance from HHS to subrecipients, the recipient shall pro- vide the subrecipients written notice of their obligations under the Act and these regulations. (b) Each recipient shall make nec- essary information about the Act and these regulations available to its bene- ficiaries in order to inform them about the protections against discrimination provided by the Act and these regula- tions. [47 FR 57858, Dec. 28, 1982, as amended at 70 FR 24322, May 9, 2005] § 91.33 Assurance of compliance and recipient assessment of age distinc- tions. (a) Each recipient of Federal finan- cial assistance from HHS shall sign a written assurance as specified by HHS that it will comply with the Act and these regulations. (b) Recipient assessment of age distinc- tions. (1) As part of a compliance review under § 91.41 or complaint investigation under § 91.44, HHS may require a recipi- ent employing the equivalent of 15 or more employees to complete a written self-evaluation, in a manner specified by the responsible Department official, of any age distinction imposed in its program or activity receiving Feder t of 15 or more employees to complete a written self-evaluation, in a manner specified by the responsible Department official, of any age distinction imposed in its program or activity receiving Federal financial assistance from HHS to assess the recipient’s compliance with the Act. (2) Whenever an assessment indicates a violation of the Act and the HHS reg- ulations, the recipient shall take cor- rective action. § 91.34 Information requirements. Each recipient shall: (a) Keep records in a form and con- taining information which HHS deter- mines may be necessary to ascertain whether the recipient is complying with the Act and these regulations. (b) Provide to HHS, upon request, in- formation and reports which HHS de- termines are necessary to ascertain whether the recipient is complying with the Act and these regulations. (c) Permit reasonable access by HHS to the books, records, accounts, and other recipient facilities and sources of information to the extent HHS deter- mines is necessary to ascertain wheth- er the recipient is complying with the Act and these regulations. 575 § 91.41 45 CFR Subtitle A (10–1–24 Edition) Subpart D—Investigation, Concil- iation, and Enforcement Pro- sary to ascertain wheth- er the recipient is complying with the Act and these regulations. 575 § 91.41 45 CFR Subtitle A (10–1–24 Edition) Subpart D—Investigation, Concil- iation, and Enforcement Pro- cedures § 91.41 Compliance reviews. (a) HHS may conduct compliance re- views and pre-award reviews or use other similar procedures that will per- mit it to investigate and correct viola- tions of the Act and these regulations. HHS may conduct these reviews even in the absence of a complaint against a recipient. The reviews may be as com- prehensive as necessary to determine whether a violation of the Act and these regulations has occurred. (b) If a compliance review or pre- award review indicates a violation of the Act or these regulations, HHS will attempt to achieve voluntary compli- ance with the Act. If voluntary compli- ance cannot be achieved, HHS will ar- range for enforcement as described in § 91.46. § 91.42 Complaints. (a) Any person, individually or as a member of a class or on behalf of oth- ers, may file a complaint with HHS, al- leging discrimination prohibited by the Act or these regulations based on an action occurring on or after July 1, 1979. A complainant shall file behalf of oth- ers, may file a complaint with HHS, al- leging discrimination prohibited by the Act or these regulations based on an action occurring on or after July 1, 1979. A complainant shall file a com- plaint within 180 days from the date the complainant first had knowledge of the alleged act of discrimination. How- ever, for good cause shown, HHS may extend this time limit. (b) HHS will consider the date a com- plaint is filed to be the date upon which the complaint is sufficent to be processed. (c) HHS will attempt to facilitate the filing of complaints wherever possible, including taking the following meas- ures: (1) Accepting as a sufficient com- plaint, any written statement which identifies the parties involved and the date the complainant first had knowl- edge of the alleged violation, describes generally the action or practice com- plained of, and is signed by the com- plainant. (2) Freely permitting a complainant to add information to the complaint to meet the requirements of a sufficient complaint. (3) Notifying the complainant and the recipient of their rights and obliga- tions under the complaint procedure, including the right to have a represent- ative at all stag s of a sufficient complaint. (3) Notifying the complainant and the recipient of their rights and obliga- tions under the complaint procedure, including the right to have a represent- ative at all stages of the complaint procedure. (4) Notifying the complainant and the recipient (or their representatives) of their right to contact HHS for infor- mation and assistance regarding the complaint resolution process. (d) HHS will return to the complain- ant any complaint outside the jurisdic- tion of these regulations, and will state the reason(s) why it is outside the ju- risdiction of these regulations. § 91.43 Mediation. (a) HHS will promptly refer to a me- diation agency designated by the Sec- retary all sufficient complaints that: (1) Fall within the jurisdiction of the Act and these regulations, unless the age distinction complained of is clearly within an exception; and, (2) Contain all information necessary for further processing. (b) Both the complainant and the re- cipient shall participate in the medi- ation process to the extent necessary to reach an agreement or make an in- formed judgment that an agreement is not possible. (c) If the complainant and the recipi- ent reach an a icipate in the medi- ation process to the extent necessary to reach an agreement or make an in- formed judgment that an agreement is not possible. (c) If the complainant and the recipi- ent reach an agreement, the mediator shall prepare a written statement of the agreement and have the complain- ant and the recipient sign it. The medi- ator shall send a copy of the agreement to HHS. HHS will take no further ac- tion on the complaint unless the com- plainant or the recipient fails to com- ply with the agreement. (d) The mediator shall protect the confidentiality of all information ob- tained in the course of the mediation process. No mediator shall testify in any adjudicative proceeding, produce any document, or otherwise disclose any information obtained in the course of the mediation process without prior approval of the head of the mediation agency. (e) The mediation will proceed for a maximum of 60 days after a complaint is filed with HHS. Mediation ends if: (1) 60 days elapse from the time the complaint is filed; or 576 Dept. of Health and Human Services § 91.46 (2) Prior to the end of that 60-day pe- riod, an agreement is reached; or (3) Prior to the end of that 60-day pe- rio the time the complaint is filed; or 576 Dept. of Health and Human Services § 91.46 (2) Prior to the end of that 60-day pe- riod, an agreement is reached; or (3) Prior to the end of that 60-day pe- riod, the mediator determines that an agreement cannot be reached. This 60-day period may be extended by the mediator, with the concurrence of HHS, for not more than 30 days if the mediator determines that agreement will likely be reached during such ex- tended period. (f) The mediator shall return unre- solved complaints to HHS. § 91.44 Investigation. (a) Informal investigation. (1) HHS will investigate complaints that are unre- solved after mediation or are reopened because of a violation of a mediation agreement. (2) As part of the initial investigation HHS will use informal fact finding methods, including joint or separate discussions with the complainant and recipient, to establish the fact and, if possible, settle the complaint on terms that are mutually agreeable to the par- ties. HHS may seek the assistance of any involved State agency. (3) HHS will put any agreement in writing and have it signed by the par- ties and an authorized official at HHS. (4) The settlement shall not affe may seek the assistance of any involved State agency. (3) HHS will put any agreement in writing and have it signed by the par- ties and an authorized official at HHS. (4) The settlement shall not affect the operation of any other enforcement effort of HHS, including compliance re- views and investigation of other com- plaints which may involve the recipi- ent. (5) The settlement is not a finding of discrimination against a recipient. (b) Formal investigation. If HHS can- not resolve the complaint through in- formal investigation, it will begin to develop formal findings through fur- ther investigation of the complaint. If the investigation indicates a violation of these regulations HHS will attempt to obtain voluntary compliance. If HHS cannot obtain voluntary compliance it will begin enforcement as described in § 91.46. [47 FR 57858, Dec. 28, 1982, as amended at 70 FR 24322, May 9, 2005] § 91.45 Prohibition against intimida- tion or retaliation. A recipient may not engage in acts of intimidation or retaliation against any person who: (a) Attempts to assert a right pro- tected by the Act or these regulations; or (b) Cooperates in any mediation, in- vestigation, hearing, or other pa ntimidation or retaliation against any person who: (a) Attempts to assert a right pro- tected by the Act or these regulations; or (b) Cooperates in any mediation, in- vestigation, hearing, or other part of HHS’ investigation, conciliation, and enforcement process. § 91.46 Compliance procedure. (a) HHS may enforce the Act and these regulations through: (1) Termination of a recipient’s Fed- eral financial assistance from HHS under the program or activity involved where the recipient has violated the Act or these regulations. The deter- mination of the recipient’s violation may be made only after a recipient has had an opportunity for a hearing on the record before an administrative law judge. (2) Any other means authorized by law including but not limited to: (i) Referral to the Department of Jus- tice for proceedings to enforce any rights of the United States or obliga- tions of the recipient created by the Act or these regulations. (ii) Use of any requirement of or re- ferral to any Federal, State, or local government agency that will have the effect of correcting a violation of the Act or these regulations. (b) HHS will limit any termination under § 91.46(a)(1) to the particular r deral, State, or local government agency that will have the effect of correcting a violation of the Act or these regulations. (b) HHS will limit any termination under § 91.46(a)(1) to the particular re- cipient and particular program or ac- tivity or part of such program or activ- ity HHS finds in violation of these reg- ulations. HHS will not base any part of a termination on a finding with respect to any program or activity of the re- cipient which does not receive Federal financial assistance from HHS. (c) HHS will take no action under paragraph (a) until: (1) The Secretary has advised the re- cipient of its failure to comply with the Act and these regulations and has determined that voluntary compliance cannot be obtained. (2) Thirty days have elapsed after the Secretary has sent a written report of the circumstances and grounds of the action to the committees of the Con- gress having legislative jurisdiction over the program or activity involved. The Secretary will file a report when- ever any action is taken under para- graph (a). 577 § 91.47 45 CFR Subtitle A (10–1–24 Edition) (d) HHS also may defer granting new Federal financial assistance from HHS to a recipient when a hea hen- ever any action is taken under para- graph (a). 577 § 91.47 45 CFR Subtitle A (10–1–24 Edition) (d) HHS also may defer granting new Federal financial assistance from HHS to a recipient when a hearing under § 91.46(a)(1) is initiated. (1) New Federal financial assistance from HHS includes all assistance for which HHS requires an application or approval, including renewal or continu- ation of existing activities, or author- ization of new activities, during the de- ferral period. New Federal financial as- sistance from HHS does not include in- creases in funding as a result of changed formula awards or assistance approved prior to the beginning of a hearing under § 91.46(a)(1). computation of (2) HHS will not begin a deferral until the recipient has received a no- tice of an opportunity for a hearing under § 91.46(a)(1). HHS will not con- tinue a deferral for more than 60 days unless a hearing has begun within that time or the time for beginning the hearing has been extended by mutual consent of the recipient and the Sec- retary. HHS will not continue a defer- ral for more than 30 days after the close of the hearing, unless the hearing results in a finding against the recipi- en al consent of the recipient and the Sec- retary. HHS will not continue a defer- ral for more than 30 days after the close of the hearing, unless the hearing results in a finding against the recipi- ent. (3) HHS will limit any deferral to the particular recipient and particular pro- gram or activity or part of such pro- gram or activity HHS finds in violation of these regulations. HHS will not base any part of a deferral on a finding with respect to any program or activity of the recipient which does not, and would not in connection with the new funds, receive Federal financial assist- ance from HHS. [47 FR 57858, Dec. 28, 1982, as amended at 70 FR 24322, May 9, 2005] § 91.47 Hearings, decisions, post-termi- nation proceedings. Certain HHS procedural provisions applicable to Title VI of the Civil Rights Act of 1964 apply to HHS en- forcement of these regulations. They are found at 45 CFR 80.9 through 80.11 and 45 CFR part 81. § 91.48 Remedial action by recipient. Where HHS finds a recipient has dis- criminated on the basis of age, the re- cipient shall take any remedial action that HHS may require to overcome the effects of the discrimination. If an- other recipient exercises contro ient has dis- criminated on the basis of age, the re- cipient shall take any remedial action that HHS may require to overcome the effects of the discrimination. If an- other recipient exercises control over the recipient that has discriminated, HHS may require both recipients to take remedial action. § 91.49 Alternate funds disbursal pro- cedure. (a) When HHS withholds funds from a recipient under these regulations, the Secretary may disburse the withheld funds directly to an alternate recipi- ent: any public or non-profit private organization or agency, or State or po- litical subdivision of the State. (b) The Secretary will require any al- ternate recipient to demonstrate: (1) The ability to comply with these regulations; and (2) The ability to achieve the goals of the Federal statute authorizing the Federal financial assistance. [47 FR 57858, Dec. 28, 1982, as amended at 70 FR 24322, May 9, 2005] § 91.50 Exhaustion of administrative remedies. (a) A complainant may file a civil ac- tion following the exhaustion of admin- istrative remedies under the Act. Ad- ministrative remedies are exhausted if: (1) 180 days have elapsed since the complainant filed the complaint and HHS has mad ion following the exhaustion of admin- istrative remedies under the Act. Ad- ministrative remedies are exhausted if: (1) 180 days have elapsed since the complainant filed the complaint and HHS has made no finding with regard to the complaint; or (2) HHS issues any finding in favor of the recipient. (b) If HHS fails to make a finding within 180 days or issues a finding in favor of the recipient, HHS shall: (1) Promptly advise the complainant of this fact; and (2) Advise the complainant of his or her right to bring a civil action for in- junctive relief; and (3) Inform the complainant: (i) That the complainant may bring a civil action only in a United States dis- trict court for the district in which the recipient is found or transacts busi- ness; (ii) That a complainant prevailing in a civil action has the right to be awarded the costs of the action, includ- ing reasonable attorney’s fees, but that the complainant must demand these costs in the complaint; (iii) That before commencing the ac- tion the complainant shall give 30 days 578 Dept. of Health and Human Services § 92.1 notice by registered mail to the Sec- retary, the Attorney General of the United States, and the recipient; e ac- tion the complainant shall give 30 days 578 Dept. of Health and Human Services § 92.1 notice by registered mail to the Sec- retary, the Attorney General of the United States, and the recipient; (iv) That the notice must state: the alleged violation of the Act; the relief requested; the court in which the com- plainant is bringing the action; and, whether or not attorney’s fees are de- manded in the event the complainant prevails; and (v) That the complainant may not bring an action if the same alleged vio- lation of the Act by the same recipient is the subject of a pending action in any court of the United States. PART 92—NONDISCRIMINATION IN HEALTH PROGRAMS OR ACTIVITIES Subpart A—General Provisions Sec. 92.1 Purpose and effective date. 92.2 Application. 92.3 Relationship to other laws. 92.4 Definitions. 92.5 Assurances required. 92.6 Remedial action and voluntary action. 92.7 Designation and responsibilities of a Section 1557 Coordinator. 92.8 Policies and procedures. 92.9 Training. 92.10 Notice of nondiscrimination. 92.11 Notice of availability of language as- sistance services and auxiliary aids and services. Subpart B—Nondiscrimination Provisions 92.101 Discrimination pr ning. 92.10 Notice of nondiscrimination. 92.11 Notice of availability of language as- sistance services and auxiliary aids and services. Subpart B—Nondiscrimination Provisions 92.101 Discrimination prohibited. Subpart C—Specific Applications to Health Programs and Activities 92.201 Meaningful access for individuals with limited English proficiency. 92.202 Effective communication for individ- uals with disabilities. 92.203 Accessibility for buildings and facili- ties. 92.204 Accessibility of information and com- munication technology for individuals with disabilities. 92.205 Requirement to make reasonable modifications. 92.206 Equal program access on the basis of sex. 92.207 Nondiscrimination in health insur- ance coverage and other health-related coverage. 92.208 Prohibition on sex discrimination re- lated to marital, parental, or family sta- tus. 92.209 Nondiscrimination on the basis of as- sociation. 92.210 Nondiscrimination in the use of pa- tient care decision support tools. 92.211 Nondiscrimination in the delivery of health programs and activities through telehealth services. Subpart D—Procedures 92.301 Enforcement mechanisms. 92.302 Notification of views regarding appli- cati Nondiscrimination in the delivery of health programs and activities through telehealth services. Subpart D—Procedures 92.301 Enforcement mechanisms. 92.302 Notification of views regarding appli- cation of Federal religious freedom and conscience laws. 92.303 Procedures for health programs and activities conducted by recipients and State Exchanges. 92.304 Procedures for health programs and activities administered by the Depart- ment. AUTHORITY: 42 U.S.C. 18116. SOURCE: 89 FR 37692, May 6, 2024, unless otherwise noted. Subpart A—General Provisions § 92.1 Purpose and effective date. (a) Purpose. The purpose of this part is to implement section 1557 of the Pa- tient Protection and Affordable Care Act (ACA) (42 U.S.C. 18116), which pro- hibits discrimination on the basis of race, color, national origin, sex, age, and disability in certain health pro- grams and activities. Section 1557 pro- vides that, except as otherwise pro- vided in title I of the ACA, an indi- vidual shall not, on the grounds prohib- ited under title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, the Age Discrimi- nation Act of 1975, or section 504 of the Rehabilitation Act of 1973 rounds prohib- ited under title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, the Age Discrimi- nation Act of 1975, or section 504 of the Rehabilitation Act of 1973, be excluded from participation in, be denied the benefits of, or be subjected to discrimi- nation under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insur- ance, or under any program or activity that is administered by an executive agency or any entity established under title I of the ACA. This part applies to health programs or activities adminis- tered by recipients of Federal financial assistance from the Department, De- partment-administered health pro- grams or activities, and title I entities that administer health programs or ac- tivities. (b) Effective date. The regulations in this part are effective beginning July 5, 579 § 92.2 45 CFR Subtitle A (10–1–24 Edition) 2024, unless otherwise provided in the following schedule: Section 1557 requirement and provision TABLE 1 TO PARAGRAPH (b) Date by which covered entities must comply § 92.7 ................................... Within 120 da provided in the following schedule: Section 1557 requirement and provision TABLE 1 TO PARAGRAPH (b) Date by which covered entities must comply § 92.7 ................................... Within 120 days of July 5, 2024. § 92.8 ................................... Within one year of July 5, 2024. § 92.9 ................................... Following a covered entity’s implementation of the policies and procedures required by § 92.8, and no later than one year of July 5, 2024. § 92.10 ................................. Within 120 days of July 5, 2024. § 92.11 ................................. Within one year of July 5, 2024. § 92.207(b)(1) through (5) ... For health insurance coverage or other health-related coverage that was not subject to this part as of July 5, 2024, by the first day of the first plan year (in the individual market, policy year) beginning on or after January 1, 2025. § 92.207(b)(6) ...................... By the first day of the first plan year (in the individual market, policy year) beginning on or after § 92.210(b) and (c) .............. Within 300 days of July 5, 2024. January 1, 2025. § 92.2 Application. (a) Except as otherwise provided in this part, this part sha policy year) beginning on or after § 92.210(b) and (c) .............. Within 300 days of July 5, 2024. January 1, 2025. § 92.2 Application. (a) Except as otherwise provided in this part, this part shall apply to: (1) Every health program or activity, any part of which receives Federal fi- nancial assistance, directly or indi- rectly, from the Department; (2) Every health program or activity administered by the Department; and (3) Every health program or activity administered by a title I entity. (b) The provisions of this part shall not apply to any employer or other plan sponsor of a group health plan, in- cluding but not limited to, a board of trustees (or similar body), association or other group, with regard to its em- ployment practices, including the pro- vision of employee health benefits. (c) Any provision of this part held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be severable from this part and shall not affect the re- mainder thereof or the application of the provision to other persons not similarly situated or to other, dis- similar circumstances. § 92.3 Relationship to other laws. (a) Neither section 1557 nor this p nder thereof or the application of the provision to other persons not similarly situated or to other, dis- similar circumstances. § 92.3 Relationship to other laws. (a) Neither section 1557 nor this part shall be construed to apply a lesser standard for the protection of individ- uals from discrimination than the standards applied under title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, or the regulations issued pursuant to those laws. (b) Nothing in this part shall be con- strued to invalidate or limit the rights, remedies, procedures, or legal stand- ards available under title VI of the Civil Rights Act of 1964, title VII of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, or the Age Discrimination Act of 1975. (c) Insofar as the application of any requirement under this part would vio- late applicable Federal protections for religious freedom and conscience, such application shall not be required. For example, 42 U.S.C. 18023 provides (among other things) that nothing in section 1557 shal pplicable Federal protections for religious freedom and conscience, such application shall not be required. For example, 42 U.S.C. 18023 provides (among other things) that nothing in section 1557 shall be construed to have any effect on Federal laws regarding conscience protection; willingness or refusal to provide abortion; and dis- crimination on the basis of the willing- ness or refusal to provide, pay for, cover, or refer for abortion or to pro- vide or participate in training to pro- vide abortion. (d) Nothing in this part shall be con- strued to supersede State or local laws that provide additional protections against discrimination on any basis de- scribed in § 92.1. § 92.4 Definitions. As used in this part, the term— 1991 Standards means the 1991 ADA Standards for Accessible Design, pub- lished at appendix A to 28 CFR part 36 580 Dept. of Health and Human Services § 92.4 on July 26, 1991, and republished as ap- pendix D to 28 CFR part 36 on Sep- tember 15, 2010. 2010 Standards means 36 CFR part 1191, appendices B and D (2009), in con- junction with 28 CFR 35.151. ACA means the Patient Protection and Affordable Care Act (Pub. L. 111– 148, 124 Stat. 119 (2010) as amended by t means 36 CFR part 1191, appendices B and D (2009), in con- junction with 28 CFR 35.151. ACA means the Patient Protection and Affordable Care Act (Pub. L. 111– 148, 124 Stat. 119 (2010) as amended by the Health Care and Education Rec- onciliation Act of 2010 (Pub. L. 111–152, 124 Stat. 1029) (codified in scattered sections of U.S.C.)). ADA means the Americans with Dis- abilities Act of 1990 (42 U.S.C. 12101 et seq.), as amended. Age means how old a person is, or the number of elapsed years from the date of a person’s birth. Age Act means the Age Discrimina- tion Act of 1975 (42 U.S.C. 6101 et seq.), as amended. Applicant means a person who applies to participate in a health program or activity. Auxiliary aids and services include, for example: (1) Qualified interpreters on-site or interpreting through video remote (VRI) services, as defined in 28 CFR 35.104 and 36.104; note takers; 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 c andset 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, or equally effective telecommuni- cations devices; videotext displays; ac- cessible information and communica- tion technology (ICT); or other effec- tive methods of making aurally deliv- ered information available to persons 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 infor- tech- mation and communication nology; or other effective methods of making visually delivered materials available to persons who are blind or have low vision; (3) Acquisition or modification of equipment and devices; and (4) Other similar services and ac- tions. Companion means a family member, friend, or associate of an individual seeking access to a sion; (3) Acquisition or modification of equipment and devices; and (4) Other similar services and ac- tions. Companion means a family member, friend, or associate of an individual seeking access to a service, program, or activity of a covered entity, who along with such individual, is an appropriate person with whom a covered entity should communicate. Covered entity means: (1) A recipient of Federal financial assistance; (2) The Department; and (3) An entity established under title I of the ACA. Department means the U.S. Depart- ment of Health and Human Services. Director means the Director of the Of- fice for Civil Rights (OCR) of the De- partment, or their designee(s). Disability means, with respect to an individual, a physical or mental im- pairment that substantially limits one or more major life activities of such in- dividual; a record of such an impair- ment; or being regarded as having such an impairment, as defined and con- strued in the Rehabilitation Act, 29 U.S.C. 705(9)(B), which incorporates the definition of ‘‘disability’’ in the ADA, 42 U.S.C. 12102, as amended and adopted at 28 CFR 35.108. Exchange means the same as ‘‘Ex- change’’ defined in 45 CFR 155.20. Federa B), which incorporates the definition of ‘‘disability’’ in the ADA, 42 U.S.C. 12102, as amended and adopted at 28 CFR 35.108. Exchange means the same as ‘‘Ex- change’’ defined in 45 CFR 155.20. Federal financial assistance, as used in this part: (1) Federal financial assistance means any grant, loan, credit, subsidy, contract (other than a procurement contract but including a contract of in- surance), or any other arrangement by which the Federal Government, di- rectly or indirectly, provides assist- ance or otherwise makes assistance available in the form of: (i) Funds; (ii) Services of Federal personnel; or (iii) Real or personal property or any interest in or use of such property, in- cluding: (A) Transfers or leases of such prop- erty for less than fair market value or for reduced consideration; and (B) Proceeds from a subsequent transfer or lease of such property if the 581 § 92.4 45 CFR Subtitle A (10–1–24 Edition) Federal share of its fair market value is not returned to the Federal Govern- ment. (2) Federal financial assistance the Department provides or otherwise makes available includes Federal fi- nancial assistance that the Depart- ment plays a role in providing or ad-