45 CFR Parts 160 & 164 (CFR Annual Edition) r activity may be achieved by a number of means, including re- design of equipment, reassignment of classes or other services to accessible buildings, and making aides available to beneficiaries. In choosing among methods of compliance, re- cipients are required to give priority consid- eration to methods that will be consistent with provision of services in the most appro- priate integrated setting. Structural changes in existing facilities are required only where there is no other feasible way to make the recipient’s program accessible. Under § 84.22, a university does not have to make all of its existing classroom buildings accessible to handicapped students if some of its buildings are already accessible and if it is possible to reschedule or relocate enough classes so as to offer all required courses and a reasonable selection of elective courses in accessible facilities. If sufficient relocation of classes is not possible using existing fa- cilities, enough alterations to ensure pro- gram accessibility are required. A university may not exclude a handicapped student from a specifically requested course offering be- cause it is not offered in an accessible loca- tion, but it n pro- gram accessibility are required. A university may not exclude a handicapped student from a specifically requested course offering be- cause it is not offered in an accessible loca- tion, but it need not make every section of that course accessible. Commenters representing several institu- tions of higher education have suggested that it would be appropriate for one postsec- ondary institution in a geographical area to be made accessible to handicapped persons and for other colleges and universities in that area to participate in that school’s pro- gram, thereby developing an educational consortium for the postsecondary education of handicapped students. The Department be- lieves that such a consortium, when devel- oped and applied only to handicapped per- sons, would not constitute compliance with § 84.22, but would discriminate against quali- fied handicapped persons by restricting their choice in selecting institutions of higher education and would, therefore, be incon- sistent with the basic objectives of the stat- ute. Nothing in this regulation, however, should be read as prohibiting institutions from forming consortia for the benefit of all students. Thus, if three colle with the basic objectives of the stat- ute. Nothing in this regulation, however, should be read as prohibiting institutions from forming consortia for the benefit of all students. Thus, if three colleges decide that it would be cost-efficient for one college to offer biology, the second physics, and the third chemistry to all students at the three colleges, the arrangement would not violate section 504. On the other hand, it would vio- late the regulation if the same institutions set up a consortium under which one college undertook to make its biology lab acces- sible, another its physics lab, and a third its chemistry lab, and under which mobility-im- paired handicapped students (but not other students) were required to attend the par- ticular college that is accessible for the de- sired courses. Similarly, while a public school district need not make each of its buildings com- pletely accessible, it may not make only one 507 Pt. 84, App. A 45 CFR Subtitle A (10–1–24 Edition) facility or part of a facility accessible if the result is to segregate handicapped students in a single setting. All recipients that proivde health, welfare, or other social services may also comply with § y or part of a facility accessible if the result is to segregate handicapped students in a single setting. All recipients that proivde health, welfare, or other social services may also comply with § 84.22 by delivering services at alter- nate accessible sites or making home visits. Thus, for example, a pharmacist might ar- range to make home deliveries of drugs. Under revised § 84.22(c), small providers of health, welfare, and social services (those with fewer than fifteen employees) may refer a beneficiary to an accessible provider of the desired service, but only if no means of meet- ing the program accessibility requirement other than a significant alteration in exist- ing facilties is available. The referring re- cipient has the responsibility of determining that the other provider is in fact accessible and willing to provide the service. The Sec- retary believes this ‘‘last resort’’ referral provision is appropriate to avoid imposition of additional costs in the health care area, to encourage providers to remain in the Med- icaid program, and to avoid imposing signifi- cant costs on small, low-budget providers such as day-care centers or foster homes. A recent change in the t to encourage providers to remain in the Med- icaid program, and to avoid imposing signifi- cant costs on small, low-budget providers such as day-care centers or foster homes. A recent change in the tax law may assist some recipients in meeting their obligations under this section. Under section 2122 of the Tax Reform Act of 1976, recipients that pay federal income tax are eligible to claim a tax deduction of up to $25,000 for architectural and transportation modifications made to improve accessibility for handicapped per- sons. Many physicians and dentists, among others, may be eligible for this tax deduc- tion. See 42 FR 17870 (April 4, 1977), adopting 26 CFR 7.190. Several commenters expressed concern about the feasibility of compliance with the program accessibility standard. The Sec- retary believes that the standard is flexible enough to permit recipients to devise ways to make their programs accessible short of extremely expensive or impractical physical changes in facilities. Accordingly, the sec- tion does not allow for waivers. The Depart- ment is ready at all times to provide tech- nical assistance to recipients in meeting their program accessibility responsibilities. Fo ccordingly, the sec- tion does not allow for waivers. The Depart- ment is ready at all times to provide tech- nical assistance to recipients in meeting their program accessibility responsibilities. For this purpose, the Department is estab- lishing a special technical assistance unit. Recipients are encouraged to call upon the unit staff for advice and guidance both on structural modifications and on other ways of meeting the program accessibility re- quirement. Paragraph (d) has been amended to require recipients to make all nonstructural adjust- ments necessary for meeting the program ac- cessibility standard within sixty days. Only where structural changes in facilities are necessary will a recipient be permitted up to three years to accomplish program accessi- bility. It should be emphasized that the three-year time period is not a waiting pe- riod and that all changes must be accom- plished as expeditiously as possible. Further, it is the Department’s belief, after consulta- tion with experts in the field, that outside ramps to buildings can be constructed quick- ly and at relatively low cost. Therefore, it will be expected that such structural addi- tions will be made promptl with experts in the field, that outside ramps to buildings can be constructed quick- ly and at relatively low cost. Therefore, it will be expected that such structural addi- tions will be made promptly to comply with § 84.22(d). The regulation continues to provide, as did the proposed version, that a recipient plan- ning to achieve program accessibility by making structural changes must develop a transition plan for such changes within six months of the effective date of the regula- tion. A number of commenters suggested ex- tending that period to one year. The sec- retary believes that such an extension is un- necessary and unwise. Planning for any nec- essary structural changes should be under- taken promptly to ensure that they can be completed within the three-year period. The elements of the transition plan as required by the regulation remain virtually un- changed from the proposal but § 84.22(d) now includes a requirement that the recipient make the plan available for public inspec- tion. Several commenters expressed concern that the program accessibility standard would result in the segregation of handi- capped persons in educational institutions. The regulation will not be pec- tion. Several commenters expressed concern that the program accessibility standard would result in the segregation of handi- capped persons in educational institutions. The regulation will not be applied to permit such a result. See § 84.4(c)(2)(iv), prohibiting unnecessarily separate treatment; § 84.35, re- quiring that students in elementary and sec- ondary schools be educated in the most inte- grated setting appropriate to their needs; and new § 84.43(d), applying the same stand- ard to postsecondary education. We have received some comments from or- ganizations of handicapped persons on the subject of requiring, over an extended period of time, a barrier-free environment—that is, requiring the removal of all architectural barriers in existing facilities. The Depart- ment has considered these comments but has decided to take no further action at this time concerning these suggestions, believing that such action should only be considered in light of experience in implementing the pro- gram accessibility standard. 21. New construction. Section 84.23 requires that all new facilities, as well as alterations that could affect access to and use of exist- ing facilities, be design e pro- gram accessibility standard. 21. New construction. Section 84.23 requires that all new facilities, as well as alterations that could affect access to and use of exist- ing facilities, be designed and constructed in a manner so as to make the facility acces- sible to and usable by handicapped persons. Section 84.23(a) has been amended so that it applies to each newly constructed facility if the construction was commenced after the effective date of the regulation. The words ‘‘if construction has commenced’’ will be considered to mean ‘‘if groundbreaking has takenplace.’’ Thus, a recipient will not be re- quired to alter the design of a facility that 508 Dept. of Health and Human Services Pt. 84, App. A has progressed beyond groundbreaking prior to the effective date of the regulation. Paragraph (b) requires certain alterations to conform to the requirement of physical accessibility in paragraph (a). If an alter- ation is undertaken to a portion of a build- ing the accessibility of which could be im- proved by the manner in which the alter- ation is carried out, the alteration must be made in that manner. Thus, if a doorway or wall is being altered, the door or other wall open f which could be im- proved by the manner in which the alter- ation is carried out, the alteration must be made in that manner. Thus, if a doorway or wall is being altered, the door or other wall opening must be made wide enough to ac- commodate wheelchairs. On the other hand, if the alteration consists of altering ceilings, the provisions of this section are not applica- ble because this alteration cannot be done in a way that affects the accessibility of that portion of the building. The phrase ‘‘to the maximum extent feasible’’ has been added to allow for the occasional case in which the nature of an existing facility is such as to make it impractical or prohibitively expen- sive to renovate the building in a manner that results in its being entirely barrier-free. In all such cases, however, the alteration should provide the maximum amount of physical accessibility feasible. As proposed, § 84.23(c) required compliance with the American National Standards Insti- tute (ANSI) standard on building accessi- bility as the minimum necessary for compli- ance with the accessibility requirement of § 84.23 (a) and (b). The regerence to the ANSI standard created some ambiguity, since the st on building accessi- bility as the minimum necessary for compli- ance with the accessibility requirement of § 84.23 (a) and (b). The regerence to the ANSI standard created some ambiguity, since the standard itself provides for waivers where other methods are equally effective in pro- viding accessibility to the facility. More- over, the Secretary does not wish to discour- age innovation in barrier-free construction by requiring absolute adherence to a rigid design standard. Accordingly, § 84.23 (c) has been revised to permit departures from par- ticular requirements of the ANSI standard where the recipient can demonstrate that equivalent access to the facility is provided. Section 84.23(d) of the proposed regulation, providing for a limited deferral of action concerning facilities that are subject to sec- tion 502 as well as section 504 of the Act, has been deleted. The Secretary believes that the provision is unnecessary and inappropriate to this regulation. The Department will, however, seek to coordinate enforcement ac- tivities under this regulation with those of the Architectural and Transportation Bar- riers Compliance Board. SUBPART D—PRESCHOOL, ELEMENTARY, AND SECONDARY EDU er, seek to coordinate enforcement ac- tivities under this regulation with those of the Architectural and Transportation Bar- riers Compliance Board. SUBPART D—PRESCHOOL, ELEMENTARY, AND SECONDARY EDUCATION Subpart D sets forth requirements for non- discrimination in preschool, elementary, sec- ondary, and adult education programs and activities, including secondary vocational education programs. In this context, the term ‘‘adult education’’ refers only to those educational programs and activities for adults that are operated by elementary and secondary schools. The provisions of Subpart D apply to state and local educational agencies. Although the subpart applies, in general, to both public and private education programs and activi- ties that are federally assisted, §§ 84.32 and 84.33 apply only to public programs and § 84.39 applies only to private programs; §§ 84.35 and 84.36 apply both to public pro- grams and to those private programs that in- clude special services for handicapped stu- dents. Subpart B generally conforms to the stand- ards established for the education of handi- capped persons in Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.D.C d stu- dents. Subpart B generally conforms to the stand- ards established for the education of handi- capped persons in Mills v. Board of Education of the District of Columbia, 348 F. Supp. 866 (D.D.C. 1972), Pennsylvania Association for Re- tarded Children v. Commonwealth of Pennsyl- vania, 344 F. Supp. 1257 (E.D. 1971), 343 F. Supp. 279 (E.D. Pa. 1972), and Lebanks v. Spears, 60, F.R.D. 135 (E.D. La. 1973), as well as in the Education of the Handicapped Act, as amended by Pub. L. 94–142 (the EHA). that from results The basic requirements common to those cases, to the EHA, and to this regulation are (1) that handicapped persons, regardless of the nature or severity of their handicap, be provided a free appropriate public education, (2) that handicapped students be educated with nonhandicapped students to the max- imum extent appropriate to their needs, (3) that educational agencies undertake to iden- tify and locate all unserved handicapped children, (4) that evaluation procedures be improved in order to avoid the inappropriate education the misclassification of students, and (5) that procedural safeguard be established to en- able parents and guardians to influence deci- sions re improved in order to avoid the inappropriate education the misclassification of students, and (5) that procedural safeguard be established to en- able parents and guardians to influence deci- sions regarding the evaluation and place- ment of their children. These requirements are designed to ensure that no handicapped child is excluded from school on the basis of handicap and, if a recipient demonstrates that placement in a regular educational set- ting cannot be achieved satisfactorily, that the student is provided with adequate alter- native services suited to the student’s needs without additional cost to the student’s par- ents or guardian. Thus, a recipient that oper- ates a public school system must either edu- cate handicapped children in its regular pro- gram or provide such children with an appro- priate alternative education at public ex- pense. It is not the intention of the Department, except in extraordinary circumstances, to re- view the result of individual placement and other educational decisions, so long as the school district complies with the ‘‘process’’ requirements of this subpart (concerning identification and location, evaluation, and due process procedures) other educational decisions, so long as the school district complies with the ‘‘process’’ requirements of this subpart (concerning identification and location, evaluation, and due process procedures). However, the De- partment will place a high priority on inves- tigating cases which may involve exclusion of a child from the education system or a 509 Pt. 84, App. A 45 CFR Subtitle A (10–1–24 Edition) pattern or practice of discriminatory place- ments or education. 22. Location and notification. Section 84.32 requires public schools to take steps annu- ally to identify and locate handicapped chil- dren who are not receiving an education and to publicize to handicapped children and their parents the rights and duties estab- lished by section 504 and this regulation. This section has been shortened without sub- stantive change. §§ 84.34 23. Free appropriate public education. Former (‘‘Free education’’) and 84.36(a) (‘‘Suitable education’’) have been consolidated and revised in new § 84.33. Under § 84.34(a), a recipient is responsible for pro- viding a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction. The word ‘‘in’’ encompa 3. Under § 84.34(a), a recipient is responsible for pro- viding a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction. The word ‘‘in’’ encompasses the concepts of both domicile and actual residence. If a recipient places a child in a program other than its own, it re- mains financially responsible for the child, whether or not the other program is oper- ated by another recipient or educational agency. Moreover, a recipient may not place a child in a program that is inappropriate or that otherwise violates the requirements of Subpart D. And in no case may a recipient refuse to provide services to a handicapped child in its jurisdiction because of another person’s or entity’s failure to assume finan- cial responsibility. Section 84.33(b) concerns the provision of appropriate educational services to handi- capped children. To be appropriate, such services must be designed to meet handi- capped children’s individual educational needs to the same extent that those of non- handicapped children are met. An appro- priate education could consist of education in regular classes, education in regular class- es with the use of supplemen s to the same extent that those of non- handicapped children are met. An appro- priate education could consist of education in regular classes, education in regular class- es with the use of supplementary services, or special education and related services. Spe- cial education may include specially de- signed instruction in classrooms, at home, or in private or public institutions and may be accompanied by such related services as de- velopmental, corrective, and other sup- portive services (including psychological, counseling, and medical diagnostic services). The placement of the child must however, be consistent with the requirements of § 84.34 and be suited to his or her educational needs. The quality of the educational services provided to handicapped students must equal that of the services provided to nonhandi- capped students; thus, handicapped student’s teachers must be trained in the instruction of persons with the handicap in question and appropriate materials and equipment must be available. The Department is aware that the supply of adequately trained teachers may, at least at the outset of the imposition of this requirement, be insufficient to meet the demand of all r must be available. The Department is aware that the supply of adequately trained teachers may, at least at the outset of the imposition of this requirement, be insufficient to meet the demand of all recipients. This factor will be considered in determining the appro- priateness of the remedy for noncompliance with this section. A new § 84.33(b)(2) has been added, which allows this requirement to be met through the full implementation of an individualized education program developed in accordance with the standards of the EHA. Paragraph (c) of § 84.33 sets forth the spe- cific financial obligations of a recipient. If a recipient does not itself provide handicapped persons with the requisite services, it must assume the cost of any alternate placement. If, however, a recipient offers adequate serv- ices and if alternate placement is chosen by a student’s parent or guardian, the recipient need not assume the cost of the outside serv- ices. (If the parent or guardian believes that his or her child cannot be suitably educated in the recipient’s program, he or she may make use of the procedures established in § 84.36.) Under this paragraph, a recipient’s obligation extends beyond the pro er child cannot be suitably educated in the recipient’s program, he or she may make use of the procedures established in § 84.36.) Under this paragraph, a recipient’s obligation extends beyond the provision of tuition payments in the case of placement outside the regular program. Adequate transportation must also be provided. Re- cipients must also pay for psychological services and those medical services nec- essary for diagnostic and evaluative pur- poses. If the recipient places a student, because of his or her handicap, in a program that neces- sitates his or her being away from home, the payments must also cover room and board and nonmedical care (including custodial and supervisory care). When residential care is necessitated not by the student’s handicap but by factors such as the student’s home conditions, the recipient is not required to pay the cost of room and board. Two new sentences have been added to paragraph (c)(1) to make clear that a recipi- ent’s financial obligations need not be met solely through its own funds. Recipients may rely on funds from any public or private source including insurers and similar third parties. 84.33(d) requires recipients The EHA requir s need not be met solely through its own funds. Recipients may rely on funds from any public or private source including insurers and similar third parties. 84.33(d) requires recipients The EHA requires a free appropriate edu- cation to be provided to handicapped chil- dren ‘‘no later than September 1, 1978,’’ but section 504 contains no authority for delay- ing enforcement. To resolve this problem, a new paragraph (d) has been added to § 84.33. Section to achieve full compliance with the free appro- priate public education requirements of § 84.33 as expeditiously as possible, but in no event later than September 1, 1978. The pro- vision also makes clear that, as of the effec- tive date of this regulation, no recipient may exclude a qualified handicapped child from its educational program. This provision against exclusion is consistent with the order of providing services set forth in sec- tion 612(3) of the EHA, which places the high- est priority on providing services to handi- capped children who are not receiving an education. 510 Dept. of Health and Human Services Pt. 84, App. A 24. Educational setting. Section 84.34 pre- scribes standards for educating handicapped persons wit d children who are not receiving an education. 510 Dept. of Health and Human Services Pt. 84, App. A 24. Educational setting. Section 84.34 pre- scribes standards for educating handicapped persons with nonhandicapped persons to the maximum extent appropriate to the needs of the handicapped person in question. A handi- capped student may be removed from the regular educational setting only where the recipient can show that the needs of the stu- dent would, on balance, be served by place- ment in another setting. Although under § 84.34, the needs of the handicapped person are determinative as to proper placement, it should be stressed that, where a handicapped student is so disruptive in a regular classroom that the education of other students is significantly impaired, the needs of the handicapped child cannot be met in that environment. Therefore, regular placement would not be appropriate to his or her needs and would not be required by § 84.34. Among the factors to be considered in plac- ing a child is the need to place the child as close to home as possible. A new sentence has been added to paragraph (a) requiring re- cipients to take this factor into account. As pointed out in lac- ing a child is the need to place the child as close to home as possible. A new sentence has been added to paragraph (a) requiring re- cipients to take this factor into account. As pointed out in several comments, the par- ents’ right under § 84.36 to challenge the placement of their child extends not only to placement in special classes or separate schools but also to placement in a distant school and, in particular, to residential placement. An equally appropriate edu- cational program may exist closer to home; this issue may be raised by the parent or guardian under §§ 84.34 and 84.36. New paragraph (b) specified that handi- capped children must also be provided non- academic services in as integrated a setting as possible. This requirement is especially important for children whose educational needs necessitate their being solely with other handicapped children during most of each day. To the maximum extent appro- priate, children in residential settings are also to be provided opportunities for partici- pation with other children. Section 84.34(c) (formerly § 84.38) requires that any facilities that are identifiable as being for handicapped students be com- parable in qual opportunities for partici- pation with other children. Section 84.34(c) (formerly § 84.38) requires that any facilities that are identifiable as being for handicapped students be com- parable in quality to other facilities of the recipient. A number of comments objected to this section on the basis that it encourages the creation and maintenance of such facili- ties. This is not the intent of the provision. A separate facility violates section 504 unless it is indeed necessary to the provision of an appropriate education to certain handi- capped students. In those instances in which such facilities are necessary (as might be the case, for example, for severely retarded per- sons), this provision requires that the edu- cational services provided be comparable to those provided in the facilities of the recipi- ent that are not identifiable as being for handicapped persons. 25. Evaluation and placement. Because the failure to provide handicapped persons with an appropriate education is so frequently the result of misclassification or misplacement, § 84.33(b)(1) makes compliance with its provi- sions contingent upon adherence to certain procedures designed to ensure appropriate classi o frequently the result of misclassification or misplacement, § 84.33(b)(1) makes compliance with its provi- sions contingent upon adherence to certain procedures designed to ensure appropriate classification and placement. These proce- dures, delineated in §§ 84.35 and 84.36, are con- cerned with testing and other evaluation methods and with procedural due process rights. Section 84.35(a) requires that an individual evaluation be conducted before any action is taken with respect either to the initial placement of a handicapped child in a reg- ular or special education program or to any subsequent significant change in that place- ment. Thus, a full reevaluation is not re- quired every time an adjustment in place- ment is made. ‘‘Any action’’ includes denials of placement. Paragraphs (b) and (c) of § 84.35 establishes procedures designed to ensure that children are not misclassified, unnecessarily labeled as being handicapped, or incorrectly placed because of inappropriate selection, adminis- tration, or interpretation of evaluation ma- terials. This problem has been extensively documented in ‘‘Issues in the Classification of Children,’’ a report by the Project on Clas- sification dminis- tration, or interpretation of evaluation ma- terials. This problem has been extensively documented in ‘‘Issues in the Classification of Children,’’ a report by the Project on Clas- sification of Exceptional Children, in which the HHS Interagency Task Force partici- pated. The provisions of these paragraphs are aimed primarily at abuses in the placement process that result from misuse of, or undue or misplaced reliance on, standardized scho- lastic aptitude tests. Paragraph (b) has been shortened but not substantively changed. The requirement in former subparagraph (1) that recipients pro- vide and administer evaluation materials in the native language of the student has been deleted as unnecessary, since the same re- quirement already exists under title VI and is more appropriately covered under that statute. Subparagraphs (1) and (2) are, in general, intended to prevent misinterpreta- tion and similar misuse of test scores and, in particular, to avoid undue reliance on gen- eral intelligence tests. Subparagraph (3) re- quires a recipient to administer tests to a student with impaired sensory, manual, or speaking skills in whatever manner is nec- essary to avoid distortion al intelligence tests. Subparagraph (3) re- quires a recipient to administer tests to a student with impaired sensory, manual, or speaking skills in whatever manner is nec- essary to avoid distortion of the test results by the impairment. Former subparagraph (4) has been deleted as unnecessarily repetitive of the other provisions of this paragraph. Paragraph (c) requires a recipient to draw upon a variety of sources in the evaluation process so that the possibility of error in classification is minimized. In particular, it requires that all significant factors relating to the learning process, including adaptive behavior, be considered. (Adaptive behavior 511 Pt. 84, App. A 45 CFR Subtitle A (10–1–24 Edition) is the effectiveness with which the indi- vidual meets the standards of personal inde- pendence and social responsibility expected of his or her age and cultural group.) Infor- mation from all sources must be documented and considered by a group of persons, and the procedure must ensure that the child is placed in the most integrated setting appro- priate. The proposed regulation would have re- quired a complete individual reevaluation of the student each year. The Department ensure that the child is placed in the most integrated setting appro- priate. The proposed regulation would have re- quired a complete individual reevaluation of the student each year. The Department has concluded that it is inappropriate in the sec- tion 504 regulation to require full reevalua- tions on such a rigid schedule. Accordingly, § 84.35(c) requires periodic reevaluations and specifies that reevaluations in accordance with the EHA will constitute compliance. The proposed regulation implementing the EHA allows reevaluation at three-year inter- vals except under certain specified cir- cumstances. Under § 84.36, a recipient must establish a system of due process procedures to be af- forded to parents or guardians before the re- cipient takes any action regarding the iden- tification, evaluation, or educational place- ment of a person who, because of handicap, needs or is believed to need special education or related services. This section has been re- vised. Because the due process procedures of the EHA, incorporated by reference in the proposed section 504 regulation, are inappro- priate for some recipients not subject to that Act, the section now specifies minimum nec- ess ess procedures of the EHA, incorporated by reference in the proposed section 504 regulation, are inappro- priate for some recipients not subject to that Act, the section now specifies minimum nec- essary procedures: notice, a right to inspect records, an impartial hearing with a right to representation by counsel, and a review pro- cedure. The EHA procedures remain one means of meeting the regulation’s due proc- ess requirements, however, and are rec- ommended to recipients as a model. 26. Nonacademic services. Section 84.37 re- quires a recipient to provide nonacademic and extracurricular services and activities in such manner as is necessary to afford handi- capped students an equal opportunity for participation. Because these services and ac- tivities are part of a recipient’s education program, they must, in accordance with the provisions of § 84.34, be provided in the most integrated setting appropriate. Revised paragraph (c)(2) does permit sepa- ration or differentiation with respect to the provision of physical education and athletics activities, but only if qualified handicapped students are also allowed the opportunity to compete for regular teams or participate in regular pect to the provision of physical education and athletics activities, but only if qualified handicapped students are also allowed the opportunity to compete for regular teams or participate in regular activities. Most handicapped stu- dents are able to participate in one or more regular physical education and athletics ac- tivities. For example, a student in a wheel- chair can participate in regular archery course, as can a deaf student in a wrestling course. Finally, the one-year transition period pro- vided in former § 84.37(a)(3) was deleted in re- sponse to the almost unanimous objection of commenters to that provision. 27. Preschool and adult education. Section 84.38 prohibits discrimination on the basis of handicap in preschool and adult education programs. Former paragraph (b), which em- phasized that compensatory programs for disadvantaged children are subject to section 504, has been deleted as unnecessary, since it is comprehended by paragraph (a). 28. Private education. Section 84.39 sets forth the requirements applicable to recipi- ents that operate private education pro- grams and activities. The obligations of these recipients have been changed in two significant resp ion 84.39 sets forth the requirements applicable to recipi- ents that operate private education pro- grams and activities. The obligations of these recipients have been changed in two significant respects: First, private schools are subject to the evaluation and due process provisions of the subpart only if they operate special education programs; second, under § 84.39(b), they may charge more for pro- viding services to handicapped students than to nonhandicapped students to the extent that additional charges can be justified by increased costs. Paragraph (a) of § 84.39 is intended to make clear that recipients that operate private education programs and activities are not re- quired to provide an appropriate education to handicapped students with special edu- cational needs if the recipient does not offer programs designed to meet those needs. Thus, a private school that has no program for mentally retarded persons is neither re- quired to admit such a person into its pro- gram nor to arrange or pay for the provision of the person’s education in another pro- gram. A private recipient without a special program for blind students, however, would not be permitted to exclude, on the o arrange or pay for the provision of the person’s education in another pro- gram. A private recipient without a special program for blind students, however, would not be permitted to exclude, on the basis of blindness, a blind applicant who is able to participate in the regular program with minor adjustments in the manner in which the program is normally offered. SUBPART E—POSTSECONDARY EDUCATION Subpart E prescribes requirements for non- discrimination in recruitment, admission, and treatment of students in postsecondary education programs and activities, including vocational education. 29. Admission and recruitment. In addition to a general prohibition of discrimination on the basis of handicap in § 84.42(a), the regula- tion delineates, in § 84.42(b), specific prohibi- tions concerning the establishment of limi- tations on admission of handicapped stu- dents, the use of tests or selection criteria, and preadmission inquiry. Several changes have been made in this provision. Section 84.42(b) provides that postsec- ondary educational institutions may not use any test or criterion for admission that has a disproportionate, adverse effect on handi- capped persons unless it has been 84.42(b) provides that postsec- ondary educational institutions may not use any test or criterion for admission that has a disproportionate, adverse effect on handi- capped persons unless it has been validated 512 Dept. of Health and Human Services Pt. 84, App. A as a predictor of academic success and alter- nate tests or criteria with a less dispropor- tionate, adverse effect are shown by the De- partment to be available. There are two sig- nificant changes in this approach from the July 16 proposed regulation. First, many commenters expressed concern that § 84.42(b)(2)(ii) could be interpreted to require a ‘‘global search’’ for alternate tests that do not have a disproportionate, adverse impact on handicapped persons. this was not the intent of the provision and, therefore, it has been amended to place the burden on the Director of the Office for Civil Rights, rather than on the recipient, to identify alternate tests. just Second, a new paragraph (d), concerning validity studies, has been added. Under the proposed regulation, overall success in an first-year education program, not grades, was the criterion against which ad- missions tests were to be validated. This ap- proach has been added. Under the proposed regulation, overall success in an first-year education program, not grades, was the criterion against which ad- missions tests were to be validated. This ap- proach has been changed to reflect the com- ment of professional testing services that use of first year grades would be less disrup- tive of present practice and that periodic va- lidity studies against overall success in the education program would be sufficient check on the reliability of first-year grades. Section 84.42(b)(3) also requires a recipient to assure itself that admissions tests are se- lected and administered to applicants with impaired sensory, manual, or speaking skills in such manner as is necessary to avoid un- fair distortion of test results. Methods have been developed for testing the aptitude and achievement of persons who are not able to take written tests or even to make the marks required for mechanically scored ob- jective tests; in addition, methods for testing persons with visual or hearing impairments are available. A recipient, under this para- graph, must assure itself that such methods are used with respect to the selection and ad- ministration of any admissions th visual or hearing impairments are available. A recipient, under this para- graph, must assure itself that such methods are used with respect to the selection and ad- ministration of any admissions tests that it uses. Section 84.42(b)(3)(iii) has been amended to require that admissions tests be adminis- tered in facilities that, on the whole, are ac- cessible. In this context, on the whole means that not all of the facilities need be acces- sible so long as a sufficient number of facili- ties are available to handicapped persons. Revised § 84.42(b)(4) generally prohibits preadmission inquiries as to whether an ap- plicant has a handicap. The considerations that led to this revision are similar to those underlying the comparable revision of § 84.14 on preemployment inquiries. The regulation does, however, allow inquiries to be made, after admission but before enrollment, as to handicaps that may require accommodation. New paragraph (c) parallels the section on preemployment inquiries and allows postsec- ondary institutions to inquire about appli- cants’ handicaps before admission, subject to certain safeguards, if the purpose of the in- quiry is to take remedial action to correct and allows postsec- ondary institutions to inquire about appli- cants’ handicaps before admission, subject to certain safeguards, if the purpose of the in- quiry is to take remedial action to correct past discrimination or to take voluntary ac- tion to overcome the limited participation of handicapped persons in postsecondary edu- cational institutions. Proposed § 84.42(c), which would have al- lowed different admissions criteria in certain cases for handicapped persons, was widely misinterpreted from both handicapped persons and recipients. We have concluded that the section is unnecessary, and it has been deleted. in comments 30. Treatment of students. Section 84.43 con- tains general provisions prohibiting the dis- criminatory treatment of qualified handi- capped applicants. Paragraph (b) requires re- cipients to ensure that equal opportunities are provided to its handicapped students in education programs and activities that are not operated by the recipient. The recipient must be satisfied that the outside education program or activity as a whole is non- discriminatory. For example, a college must ensure that discrimination on the basis of handicap does not occur in connection satisfied that the outside education program or activity as a whole is non- discriminatory. For example, a college must ensure that discrimination on the basis of handicap does not occur in connection with teaching assignments of student teachers in elementary or secondary schools not oper- ated by the college. Under the ‘‘as a whole’’ wording, the college could continue to use el- ementary or secondary school systems that discriminate if, and only if, the college’s stu- dent teaching program, when viewed in its entirety, offered handicapped student teach- ers the same range and quality of choice in student teaching assignments afforded non- handicapped students. Paragraph (c) of this section prohibits a re- cipient from excluding qualified handicapped students from any course, course of study, or other part of its education program or activ- ity. This paragraph is designed to eliminate the practice of excluding handicapped per- sons from specific courses and from areas of concentration because of factors such as am- bulatory difficulties of the student or as- sumptions by the recipient that no job would be available in the area in question for a per- son with that handicap. New pa n because of factors such as am- bulatory difficulties of the student or as- sumptions by the recipient that no job would be available in the area in question for a per- son with that handicap. New paragraph (d) requires postsecondary institutions to operate their programs and activities so that handicapped students are provided services in the most integrated set- ting appropriate. Thus, if a college had sev- eral elementary physics classes and had moved one such class to the first floor of the science building to accommodate students in wheelchairs, it would be a violation of this paragraph for the college to concentrate handicapped students with no mobility im- pairments in the same class. 31. Academic adjustments. Paragraph (a) of § 84.44 requires that a recipient make certain adjustments to academic requirements and practices that discriminate or have the ef- fect of discriminating on the basis of handi- cap. This requirement, like its predecessor in the proposed regulation, does not obligate an 513 Pt. 84, App. A 45 CFR Subtitle A (10–1–24 Edition) institution to waive course or other aca- demic requirements. But such institutions must accommodate those requirements to the ne not obligate an 513 Pt. 84, App. A 45 CFR Subtitle A (10–1–24 Edition) institution to waive course or other aca- demic requirements. But such institutions must accommodate those requirements to the needs of individual handicapped stu- dents. For example, an institution might permit an otherwise qualified handicapped student who is deaf to substitute an art ap- preciation or music history course for a re- quired course in music appreciation or could modify the manner in which the music ap- preciation course is conducted for the deaf student. It shoud be stressed that academic requirements that can be demonstrated by the recipient to be essential to its program of instruction or to particular degrees need not be changed. Paragraph (b) provides that postsecondary institutions may not impose rules that have the effect of limiting the participation of handicapped students in the education pro- gram. Such rules include prohibition of tape recorders or braillers in classrooms and dog guides in campus buildings. Several recipi- ents expressed concern about allowing stu- dents to tape record lectures because the professor may later want to copyright the lectures. This problem may be solved n campus buildings. Several recipi- ents expressed concern about allowing stu- dents to tape record lectures because the professor may later want to copyright the lectures. This problem may be solved by re- quiring students to sign agreements that they will not release the tape recording or transcription or otherwise hinder the profes- sor’s ability to obtain a copyright. Paragraph (c) of this section, concerning the administration of course examinations to students with impaired sensory, manual, or speaking skills, parallels the regulation’s provisions on admissions testing (§ 84.42(b)) and will be similarly interpreted. Under § 84.44(d), a recipient must ensure that no handicapped student is subject to discrimination in the recipient’s program be- cause of the absence of necessary auxiliary educational aids. Colleges and universities expressed concern about the costs of compli- ance with this provision. The Department emphasizes that recipi- ents can usually meet this obligation by as- sisting students in using existing resources for auxiliary aids such as state vocational rehabilitation agencies and private chari- table organizations. Indeed, the Department anticipates that the s- sisting students in using existing resources for auxiliary aids such as state vocational rehabilitation agencies and private chari- table organizations. Indeed, the Department anticipates that the bulk of auxiliary aids will be paid for by state and private agen- cies, not by colleges or universities. In those circumstances where the recipient institu- tion must provide the educational auxiliary aid, the institution has flexibility in choos- ing the methods by which the aids will be supplied. For example, some universities have used students to work with the institu- tion’s handicapped students. Other institu- tions have used existing private agencies that tape texts for handicapped students free of charge in order to reduce the number of readers needed for visually impaired stu- dents. As long as no handicapped person is ex- cluded from a program because of the lack of an appropriate aid, the recipient need not have all such aids on hand at all times. Thus, readers need not be available in the recipi- ent’s library at all times so long as the schedule of times when a reader is available is established, is adhered to, and is suffi- cient. Of course, recipients are not required t lable in the recipi- ent’s library at all times so long as the schedule of times when a reader is available is established, is adhered to, and is suffi- cient. Of course, recipients are not required to maintain a complete braille library. 32. Housing. Section 84.45(a) requires post- secondary institutions to provide housing to handicapped students at the same cost as they provide it to other students and in a convenient, accessible, and comparable man- ner. Commenters, particularly blind persons pointed out that some handicapped persons can live in any college housing and need not wait to the end of the transition period in Subpart C to be offered the same variety and scope of housing accommodations given to nonhandicapped persons. The Department concurs with this position and will interpret this section accordingly. A number of colleges and universities re- acted negatively to paragraph (b) of this sec- tion. It provides that, if a recipient assists in making off-campus housing available to its students, it should develop and implement procedures to assure itself that off-campus housing, as a whole, is available to handi- capped students. Since postsecondary insti- tutions are pre ble to its students, it should develop and implement procedures to assure itself that off-campus housing, as a whole, is available to handi- capped students. Since postsecondary insti- tutions are presently required to assure themselves that off-campus housing is pro- vided in a manner that does not discriminate on the basis of sex (§ 86.32 of the title IX reg- ulation), they may use the procedures devel- oped under title IX in order to comply with § 84.45(b). It should be emphasized that not every off-campus living accommodation need be made accessible to handicapped persons. 33. Health and insurance. Section 84.46 of the proposed regulation, providing that re- cipients may not discriminate on the basis of handicap in the provision of health related services, has been deleted as duplicative of the general provisions of § 84.43. This deletion represents no change in the obligation of re- cipients to provide nondiscriminatory health and insurance plans. The Department will continue to require that nondiscriminatory health services be provided to handicapped students. Recipients are not required, how- ever, to provide specialized services and aids to handicapped persons in health pro equire that nondiscriminatory health services be provided to handicapped students. Recipients are not required, how- ever, to provide specialized services and aids to handicapped persons in health programs. If, for example, a college infirmary treats only simple disorders such as cuts, bruises, and colds, its obligation to handicapped per- sons is to treat such disorders for them. 34. Financial assistance. Section 84.46(a) (formerly § 84.47), prohibiting discrimination in providing financial assistance, remains substantively the same. It provides that re- cipients may not provide less assistance to or limit the eligibility of qualified handi- capped persons for such assistance, whether the assistance is provided directly by the re- cipient or by another entity through the re- cipient’s sponsorship. Awards that are made 514 Dept. of Health and Human Services Pt. 84, App. A under wills, trusts, or similar legal instru- ments in a discriminatory manner are per- missible, but only if the overall effect of the recipient’s provision of financial assistance is not discriminatory on the basis of handi- cap. It will not be considered discriminatory to deny, on the basis of handicap, an athl verall effect of the recipient’s provision of financial assistance is not discriminatory on the basis of handi- cap. It will not be considered discriminatory to deny, on the basis of handicap, an athletic scholarship to a handicapped person if the handicap renders the person unable to qual- ify for the award. For example, a student who has a neurological disorder might be de- nied a varsity football scholarship on the basis of his inability to play football, but a deaf person could not, on the basis of handi- cap, be denied a scholarship for the school’s diving team. The deaf person could, however, be denied a scholarship on the basis of com- parative diving ability. Commenters on § 84.46(b), which applies to assistance in obtaining outside employment for students, expressed similar concerns to those raised under § 84.43(b), concerning coop- erative programs. This paragraph has been changed in the same manner as § 84.43(b) to include the ‘‘as a whole’’ concept and will be interpreted in the same manner as § 84.43(b). 35. Nonacademic services. Section 84.47 (for- merly § 84.48) establishes nondiscrimination standards for physical education and ath- letics counseling and placement se n the same manner as § 84.43(b). 35. Nonacademic services. Section 84.47 (for- merly § 84.48) establishes nondiscrimination standards for physical education and ath- letics counseling and placement services, and social organizations. This section sets the same standards as does § 84.38 of Subpart D, discussed above, and will be interpreted in a similar fashion. SUBPART F—HEALTH, WELFARE, AND SOCIAL SERVICES Subpart F applies to recipients that oper- ate health, welfare, and social service pro- grams. The Department received fewer com- ments on this subpart than on others. Although many commented that Subpart F lacked specificity, these commenters pro- vided neither concrete suggestions nor addi- tions. Nevertheless, some changes have been made, pursuant to comment, to clarify the obligations of recipients in specific areas. In addition, in an effort to reduce duplication in the regulation, the section governing re- cipients providing health services (proposed § 84.52) has been consolidated with the sec- tion regulating providers of welfare and so- cial services (proposed § 84.53). Since the sep- arate provisions that appeared in the pro- posed regulation were almost identical, no s ated with the sec- tion regulating providers of welfare and so- cial services (proposed § 84.53). Since the sep- arate provisions that appeared in the pro- posed regulation were almost identical, no substantive change should be inferred from their consolidation. Several commenters asked whether Sub- part F applies to vocational rehabilitation agencies whose purpose is to assist in the re- habilitation of handicapped persons. To the extent that such agencies receive financial assistance from the Department, they are covered by Subpart F and all other relevant subparts of the regulation. Nothing in this regulation, however, precludes such agencies from servicing only handicapped persons. In- deed, § 84.4(c) permits recipients to offer serv- ices or benefits that are limited by federal law to handicapped persons or classes of handicapped persons. Many comments suggested requiring state health, welfare, and social service agencies to take an active role in the enforcement of section 504 with regard to local health and social service providers. The Department be- lieves that the possibility for federal-state cooperation in the administration and en- forcement of section 504 warrants fur th regard to local health and social service providers. The Department be- lieves that the possibility for federal-state cooperation in the administration and en- forcement of section 504 warrants further consideration. Moreover, the Department will rely largely on state Medicaid agencies, as it has under title VI, for monitoring com- pliance by individual Medicaid providers. A number of comments also discussed whether section 504 should be read to require payment of compensation to institutional- ized handicapped patients who perform serv- ices for the institution in which they reside. The Department of Labor has recently issued a proposed regulation under the Fair Labor Standards Act (FLSA) that covers the ques- tion of compensation for institutionalized persons, 42 FR 15224 (March 18, 1977). This De- partment will seek information and com- ment from the Department of Labor con- cerning that agency’s experience admin- istering the FLSA regulation. 36. Health, welfare, and other social service providers. As already noted, § 84.53 has been combined with proposed § 84.53 into a single section covering health, welfare, and other social services. Section 84.52(a) has been ex- panded i l service providers. As already noted, § 84.53 has been combined with proposed § 84.53 into a single section covering health, welfare, and other social services. Section 84.52(a) has been ex- panded in several respects. The addition of new paragraph (a)(2) is intended to make clear the basic requirement of equal oppor- tunity to receive benefits or services in the health, welfare, and social service areas. The paragraph parallels §§ 84.4(b)(ii) and 84.43(b). New paragraph (a)(3) requires the provision of effective benefits or services, as defined in § 84.4(b)(2) (i.e., benefits or services which ‘‘afford handicapped persons equal oppor- tunity to obtain the same result (or) to gain the same benefit * * *’’). Section 84.52(a) also includes provisions concerning the limitation of benefits or serv- ices to handicapped persons and the subjec- tion of handicapped persons to different eli- gibility standards. (These provisions were previously included in the welfare recipient section (§ 84.53(a)).) One common misconcep- tion about the regulation is that it would re- quire specialized hospitals and other health care providers to treat all handicapped per- sons. The regulation makes no suc 3(a)).) One common misconcep- tion about the regulation is that it would re- quire specialized hospitals and other health care providers to treat all handicapped per- sons. The regulation makes no such require- ment. Thus, a burn treatment center need not provide other types of medical treatment to handicapped persons unless it provides such medical services to nonhandicapped persons. It could not, however, refuse to treat the burns of a deaf person because of his or her deafness. 515 Pt. 84, App. B 45 CFR Subtitle A (10–1–24 Edition) Commenters had raised the question of whether the prohibition against different standards of eligibility might preclude re- cipients from providing special services to handicapped persons or classes of handi- capped persons. The regulation will not be so interpreted, and the specific section in ques- tion has been eliminated. Section 84.4(c) makes clear that special programs for handi- capped persons are permitted. A new paragraph (a)(5) concerning the pro- vision of different or separate services or benefits has been added. This provision pro- hibits such treatment unless necessary to provide qualified handicapped persons with benefits and services t o- vision of different or separate services or benefits has been added. This provision pro- hibits such treatment unless necessary to provide qualified handicapped persons with benefits and services that are as effective as those provided to others. Section 84.52(a)(2) of the proposed regula- tion has been omitted as duplicative of re- vised § 84.22 (b) and (c) in Subpart C. As dis- cussed above, these sections permit health care providers to arrange to meet patients in accessible facilities and to make referrals in carefully limited circumstances. Section 84.52(a)(3) of the proposed regula- tion has been redesignated § 84.52(b) and has been amended to cover written material con- cerning waivers of rights or consent to treat- ment as well as general notices concerning health benefits or services. The section re- quires the recipient to ensure that qualified handicapped persons are not denied effective notice because of their handicap. For exam- ple, recipients could use several different types of notice in order to reach persons with impaired vision or hearing, such as brailled messages, radio spots, and tacticle devices on cards or envelopes to inform blind persons of the need to nt types of notice in order to reach persons with impaired vision or hearing, such as brailled messages, radio spots, and tacticle devices on cards or envelopes to inform blind persons of the need to call the recipient for further information. Sections 84.52(a)(4), 84.52(a)(5), and 84.52(b) have been omitted from the regulation as un- necessary. They are clearly comprehended by the more general sections banning discrimi- nation. Section 84.52(c) is a new section requiring recipient hospitals to establish a procedure for effective communication with persons with impaired hearing for the purpose of pro- viding emergency health care. Although it would be appropriate for a hospital to fulfill its responsibilities under this section by hav- ing a full-time interpreter for the deaf on staff, there may be other means of accom- plishing the desired result of assuring that some means of communication is imme- diately available for deaf persons needing emergency treatment. Section 84.52(d), also a new provision, re- quires recipients with fifteen or more em- ployees to provide appropriate auxiliary aids for persons with impaired sensory, manual, or speaking skills. Further, the Director may a new provision, re- quires recipients with fifteen or more em- ployees to provide appropriate auxiliary aids for persons with impaired sensory, manual, or speaking skills. Further, the Director may require a small provider to furnish aux- iliary aids where the provision of aids would not adversely affect the ability of the recipi- ent to provide its health benefits or service. Thus although a small nonprofit neighbor- hood clinic might not be obligated to have available an interpreter for deaf persons, the Director may require provision of such aids as may be reasonably available to ensure that qualified handicapped persons are not denied appropriate benefits or services be- cause of their handicaps. 37. Treatment of Drug Addicts and Alcoholics. Section 84.53 is a new section that prohibits discrimination in the treatment and admis- sion of drug and alcohol addicts to hospitals and outpatient facilities. This section is in- cluded pursuant to section 407, Pub. L. 92– 255, the Drug Abuse Office and Treatment Act of 1972 (21 U.S.C. 1174), as amended, and section 321, Public Law 91–616, the Com- prehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of use Office and Treatment Act of 1972 (21 U.S.C. 1174), as amended, and section 321, Public Law 91–616, the Com- prehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970 (42 U.S.C. 4581), as amended, and section 321, Public Law 93–282. Section 504 itself also prohibits such discriminatory treatment and, in addition, prohibits similar discriminatory treatment by other types of health providers. Section 84.53 prohibits dis- crimination against drug abusers by opera- tors of outpatient facilities, despite the fact that section 407 pertains only to hospitals, because of the broader application of section 504. This provision does not mean that all hospitals and outpatient facilities must treat drug addiction and alcoholism. It sim- ply means, for example, that a cancer clinic may not refuse to treat cancer patients sim- ply because they are also alcoholics. 38. Education of institutionalized persons. The regulation retains § 84.54 of the proposed regulation that requires that an appropriate education be provided to qualified handi- capped persons who are confined to residen- tial institutions or day care centers. SUBPART G—PROCEDURES In § 84.61, the S on that requires that an appropriate education be provided to qualified handi- capped persons who are confined to residen- tial institutions or day care centers. SUBPART G—PROCEDURES In § 84.61, the Secretary has adopted the title VI complaint and enforcement proce- dures for use in implementing section 504 until such time as they are superseded by the issuance of a consolidated procedural regulation applicable to all of the civil rights statutes and executive orders adminis- tered by the Department. [42 FR 22677, May 4, 1977, as amended at 89 FR 37692, May 6, 2024] APPENDIX B TO PART 84—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] 516 Dept. of Health and Human Services Pt. 84, App. C APPENDIX C TO PART 84—GUIDELINES RELATING TO HEALTH CARE FOR HANDICAPPED INFANTS (a) Interpretative guidelines relating to the applicability of this part to health care for handicapped infants. The following are inter- pretative guidelines of the Department set forth here to ass S (a) Interpretative guidelines relating to the applicability of this part to health care for handicapped infants. The following are inter- pretative guidelines of the Department set forth here to assist recipients and the public in understanding the Department’s interpre- tation of section 504 and the regulations con- tained in this part as applied to matters con- cerning health care for handicapped infants. These interpretative guidelines are illus- trative; they do not independently establish rules of conduct. (1) With respect to programs and activities receiving Federal financial assistance, health care providers may not, solely on the basis of present or anticipated physical or mental impairments of an infant, withhold treatment or nourishment from the infant who, in spite of such impairments, will medi- cally benefit from the treatment or nourish- ment. (2) Futile treatment or treatment that will do no more than temporarily prolong the act of dying of a terminally ill infant is not con- sidered treatment that will medically ben- efit the infant. (3) In determining whether certain possible treatments will be medically beneficial to an infant, reasonable medical judgments in se ot con- sidered treatment that will medically ben- efit the infant. (3) In determining whether certain possible treatments will be medically beneficial to an infant, reasonable medical judgments in se- lecting among alternative courses of treat- ment will be respected. (4) Section 504 and the provisions of this part are not applicable to parents (who are not recipients of Federal financial assist- ance). However, each recipient health care provider must in all aspects of its health care programs receiving Federal financial as- sistance provide health care and related services in a manner consistent with the re- quirements of section 504 and this part. Such aspects includes decisions on whether to re- port, as required by State law or otherwise, to the appropriate child protective services agency a suspected instance of medical ne- glect of a child, or to take other action to seek review or parental decisions to withhold consent for medically indicated treatment. Whenever parents make a decision to with- hold consent for medically beneficial treat- ment or nourishment, such recipient pro- viders may not, solely on the basis of the in- fant’s present or anticipated future mental or p decision to with- hold consent for medically beneficial treat- ment or nourishment, such recipient pro- viders may not, solely on the basis of the in- fant’s present or anticipated future mental or physical impairments, fail to follow appli- cable procedures on reporting such incidents to the child protective services agency or to seek judicial review. (5) The following are examples of applying these interpretative guidelines. These exam- ples are stated in the context of decisions made by recipient health care providers. Were these decisions made by parents, the guideline stated in section (a)(4) would apply. These examples assume no facts or complications other than those stated. Be- cause every case must be examined on its in- dividual facts, these are merely illustrative examples to assist in understanding the framework for applying the nondiscrimina- tion requirements of section 504 and this part. (i) Withholding of medically beneficial sur- gery to correct an intestinal obstruction in an infant with Down’s Syndrome when the withholding is based upon the anticipated fu- ture mental retardation of the infant and there are no medical contraindications to the surgery that would ion in an infant with Down’s Syndrome when the withholding is based upon the anticipated fu- ture mental retardation of the infant and there are no medical contraindications to the surgery that would otherwise justify withholding the surgery would constitute a discriminatory act, violative of section 504. (ii) Withholding of treatment for medically correctable physical anomalies in children born with spina bifida when such denial is based on anticipated mental impairment pa- ralysis or incontinence of the infant, rather than on reasonable medical judgments that treatment would be futile, too unlikely of success given complications in the particular case, or otherwise not of medical benefit to the infant, would constitute a discrimina- tory act, violative of section 504. (iii) Withholding of medical treatment for an infant born with anencephaly, who will inevitably die within a short period of time, would not constitute a discriminatory act because the treatment would be futile and do no more than temporarily prolong the act of dying. (iv) Withholding of certain potential treat- ments from a severely premature and low birth weight infant on the grounds of reason- able medical judgme o more than temporarily prolong the act of dying. (iv) Withholding of certain potential treat- ments from a severely premature and low birth weight infant on the grounds of reason- able medical judgments concerning the im- probability of success or risks of potential harm to the infant would not violate section 504. (b) Guidelines for HHS investigations relating to health care for handicapped infants. The fol- lowing are guidelines of the Department in conducting investigations relating to health care for handicapped infants. They are set forth here to assist recipients and the public in understanding applicable investigative procedures. These guidelines do not establish rules of conduct, create or affect legally en- forceable rights of any person, or modify ex- isting rights, authorities or responsibilities pursuant to this part. These guidelines re- flect the Department’s recognition of the special circumstances presented in connec- tion with complaints of suspected life- threatening noncompliance with this part in- volving health care for handicapped infants. These guidelines do not apply to other inves- tigations pursuant to this part, or other civil rights statutes and rules. noncompliance with this part in- volving health care for handicapped infants. These guidelines do not apply to other inves- tigations pursuant to this part, or other civil rights statutes and rules. Deviations from these guidelines may occur when, in the judgment of the responsible Department offi- cial, other action is necessary to protect the life or health of a handicapped infant. (1) Unless impracticable, whenever the De- partment receives a complaint of suspected 517 Pt. 85 45 CFR Subtitle A (10–1–24 Edition) life-threatening noncompliance with this part in connection with health care for a handicapped infant in a program or activity receiving Federal financial assistance, HHS will immediately conduct a preliminary in- quiry into the matter by initiating telephone contact with the recipient hospital to obtain information relating to the condition and treatment of the infant who is the subject of the complaint. The preliminary inquiry, which may include additional contact with the complainant and a requirement that per- tinent records be provided to the Depart- ment, will generally be completed within 24 hours (or sooner if indicated) after receipt of the complaint. (2) Unless complainant and a requirement that per- tinent records be provided to the Depart- ment, will generally be completed within 24 hours (or sooner if indicated) after receipt of the complaint. (2) Unless impracticable, whenever a re- cipient hospital has an Infant Care Review Committee, established and operated sub- stantially in accordance with the provisions of 45 CFR 84.55(f), the Department will, as part of its preliminary inquiry, solicit the information available to, and the analysis and recommendations of, the ICRC. Unless, in the judgment of the responsible Depart- ment official, other action is necessary to protect the life or health of a handicapped infant, prior to initiating an on-site inves- tigation, the Department will await receipt of this information from the ICRC for 24 hours (or less if indicated) after receipt of the complaint. The Department may require a subsequent written report of the ICRC’s findings, accompanied by pertinent records and documentation. (3) On the basis of the information ob- tained during preliminary inquiry, including information provided by the hospital (includ- ing the hospital’s ICRC, if any), information provided by the complainant, and al asis of the information ob- tained during preliminary inquiry, including information provided by the hospital (includ- ing the hospital’s ICRC, if any), information provided by the complainant, and all other information obtained, the Department will determine whether there is a need for an on- site investigation of the complaint. When- ever the Department determines that doubt remains that the recipient hospital or some other recipient is in compliance with this part or additional documentation is desired to substantiate a conclusion, the Depart- ment will initiate an on-site investigation or take some other appropriate action. Unless impracticable, prior to initiating an on-site investigation, the Department’s medical consultant (referred to in paragraph 6) will contact the hospital’s ICRC or appropriate medical personnel of the recipient hospital. (4) In conducting on-site investigations, when a recipient hospital has an ICRC estab- lished and operated substantially in accord- ance with the provisions of 45 CFR 84.55(f), the investigation will begin with, or include at the earliest practicable time, a meeting with the ICRC or its designees. In all on-site investigations, the Depa ith the provisions of 45 CFR 84.55(f), the investigation will begin with, or include at the earliest practicable time, a meeting with the ICRC or its designees. In all on-site investigations, the Department will make every effort to minimize any potential in- convenience or disruption, accommodate the schedules of health care professionals and avoid making medical records unavailable. The Department will also seek to coordinate its investigation with any related investiga- tions by the state child protective services agency so as to minimize potential disrup- tion. (5) It is the policy of the Department to make no comment to the public or media re- garding the substance of a pending prelimi- nary inquiry or investigation. (6) The Department will obtain the assist- ance of a qualified medical consultant to evaluate the medical information (including medical records) obtained in the course of a preliminary inquiry or investigation. The name, title and telephone number of the De- partment’s medical consultant will be made available to the recipient hospital. The De- partment’s medical consultant will, if appro- priate, contact medical personnel of the re- cipient hospital in connectio ’s medical consultant will be made available to the recipient hospital. The De- partment’s medical consultant will, if appro- priate, contact medical personnel of the re- cipient hospital in connection with the pre- liminary inquiry, investigation or medical consultant’s evaluation. To the extent prac- ticable, the medical consultant will be a spe- cialist with respect to the condition of the infant who is the subject of the preliminary inquiry or investigation. The medical con- sultant may be an employee of the Depart- ment or another person who has agreed to serve, with or without compensation, in that capacity. (7) The Department will advise the recipi- ent hospital of its conclusions as soon as pos- sible following the completion of a prelimi- nary inquiry or investigation. Whenever final administrative findings following an in- vestigation of a complaint of suspected life- threatening noncompliance cannot be made promptly, the Department will seek to no- tify the recipient and the complainant of the Department’s decision on whether the mat- ter will be immediately referred to the De- partment of Justice pursuant to 45 CFR 80.8. (8) Except as necessary to determine or ef- fect complainant of the Department’s decision on whether the mat- ter will be immediately referred to the De- partment of Justice pursuant to 45 CFR 80.8. (8) Except as necessary to determine or ef- fect compliance, the Department will (i) in conducting preliminary inquiries and inves- tigations, permit information provided by the recipient hospital to the Department to be furnished without names or other identi- fying information relating to the infant and the infant’s family; and (ii) to the extent permitted by law, safeguard the confiden- tiality of information obtained. [49 FR 1653, Jan. 12, 1984] PART 85—ENFORCEMENT OF NON- DISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF HEALTH AND HUMAN SERVICES Sec. 85.1 Purpose. 85.2 Application. 518 Dept. of Health and Human Services § 85.3 [Reserved] 85.3 Definitions. 85.4–85.10 85.11 Self-evaluation. 85.12 Notice. 85.13–85.20 85.21 General prohibitions against discrimi- [Reserved] nation. [Reserved] 85.22–85.30 85.31 Employment. 85.32–85.40 85.41 Program accessibility: Discrimination [Reserved] prohibited. 85.42 Program accessibility: Existing facili- ties. 85.43 Program accessibility: New con d] 85.22–85.30 85.31 Employment. 85.32–85.40 85.41 Program accessibility: Discrimination [Reserved] prohibited. 85.42 Program accessibility: Existing facili- ties. 85.43 Program accessibility: New construc- tion and alterations. [Reserved] 85.44–85.50 85.51 Communications. 85.52–85.60 85.61 Compliance procedures. 85.62 Coordination and compliance respon- [Reserved] sibilities. AUTHORITY: 29 U.S.C. 794. SOURCE: 53 FR 25603, July 8, 1988, unless otherwise noted. EDITORIAL NOTE: At the request of the De- partment of Health and Human Services, the ‘‘Section-by-Section Analysis’’ portion of the preamble of the document published at 53 FR 25595, July 8, 1988, as corrected at 53 FR 26559, July 13, 1988, appears at the end of part 85. § 85.1 Purpose. The purpose of this part is to effec- tuate section 119 of the Rehabilitation, Comprehensive Services, and Develop- mental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service. § 85.2 Application. This part applies to all programs or activities conducted by the he basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service. § 85.2 Application. This part applies to all programs or activities conducted by the agency, ex- cept for programs or activities con- ducted outside the United States that do not involve individuals with handi- caps in the United States. § 85.3 Definitions. For purposes of this part, the term— Agency means the Department of Health and Human Services or any component part of the Department of Health and Human Services that con- ducts a program or activity covered by this part. Component agency means such component part. Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Depart- ment of Justice. Auxiliary aids means services or de- vices that enable persons with im- paired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency. For example, auxiliary aids useful for persons with impaired vision include readers, Brailled materials, audio recordings, and other similar services and devices. Auxiliary aids useful for perso ency. For example, auxiliary aids useful for persons with impaired vision include readers, Brailled materials, audio recordings, and other similar services and devices. Auxiliary aids useful for persons with impaired hear- ing include telephone handset ampli- fiers, telephones compatible with hear- ing aids, telecommunication devices for deaf persons (TDD’s) interpreters, notetakers, written materials, and other similar services and devices. Complete complaint means a written statement that contains the complain- ant’s name and address and describes the agency’s alleged discriminatory ac- tion in sufficient detail to inform the agency of the nature and date of the al- leged violation of section 504. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination. Facility means all or any portion of buildings, equipment, structures, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property. Individual with Handicaps means any person who has a physical or mental impairment ment, structures, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property. Individual with Handicaps means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is re- garded as having such an impairment. As used in this definition, the phrase: (1) Physical or mental impairment in- cludes: (i) Any physiological disorder or con- dition, cosmetic disfigurement, or ana- tomical loss affecting one or more of the following body systems: neuro- logical; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or 519 §§ 85.4–85.10 45 CFR Subtitle A (10–1–24 Edition) (ii) Any mental or psychological dis- order, such as mental retardation, or- ganic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as or- thopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multipl ysical or mental impairment includes, but is not limited to, such diseases and conditions as or- thopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental illness, and retardation, emotional drug addiction and alcoholism. (2) Major life activities includes func- tions such as caring for one’s self, per- forming manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. (3) Has a record of such impairment means has a history of, or is misclassified as having, a mental or physical impairment that substantially limits one or more major life activi- ties. (4) Is regarded as having an impairment means: (i) Has a physical or mental impair- ment that does not substantially limit major life activities but is treated by the agency as constituting such a limi- tation. (ii) Has a physical or mental impair- ment that substantially limits major life activities only as a result of the at- titudes of others toward such impair- ment; or (iii) Has none of the impairments de- fined in paragraph (1) of this definition but is treated by the agency as having such an impairment. OCR f the at- titudes of others toward such impair- ment; or (iii) Has none of the impairments de- fined in paragraph (1) of this definition but is treated by the agency as having such an impairment. OCR means the Office for Civil Rights of the Department of Health and Human Services. OCR Director/Special Assistant means the Director of the Office for Civil Rights, who serves concurrently as the Special Assistant to the Secretary for Civil Rights, or a designee of the Direc- tor/Special Assistant. Qualified individual with handicaps means: (1) With respect to preschool, elemen- tary, or secondary education services provided by the agency, an individual with handicaps who is a member of a class of persons otherwise entitled by statute, regulation, or agency policy to receive educational services from the agency; (2) With respect to any other agency program or activity under which a per- son is required to perform services or to achieve a particular level of accom- plishment, an individual with handi- caps who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can dem- on ith handi- caps who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can dem- onstrate would result in a fundamental alteration in its nature; and (3) With respect to any other pro- gram or activity, an individual with handicaps who meets the essential eli- gibility requirements for participation in, or receipt of benefits from, that pro- gram or activity; and (4) Qualified handicapped person as that term is defined for purposes of em- ployment in 29 CFR 1613.702(f), which is made applicable to this part by § 85.31. Secretary means the Secretary of the Department of Health and Human Services or his/her designee. Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93– 112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93–516, 88 Stat. 1617); the Rehabilitation, Com- prehensive Services, and Develop- mental Disabilities Amendments of 1978 (Pub. L. 95–602, 92 Stat. 2955); the Rehabilitation Act Amendments of 1986 (Pub. L 99–566, 100 Stat. 1810); and the Civil Rights Restoration Act of 1987 (Pub. L mental Disabilities Amendments of 1978 (Pub. L. 95–602, 92 Stat. 2955); the Rehabilitation Act Amendments of 1986 (Pub. L 99–566, 100 Stat. 1810); and the Civil Rights Restoration Act of 1987 (Pub. L. 100–259, 102 Stat. 28). As used in this part, section 504 applies only to programs or activities conducted by the agency and not to federally as- sisted programs. §§ 85.4–85.10 [Reserved] § 85.11 Self-evaluation. (a) The agency shall, within one year of the effective date of this part, evalu- ate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such policies and practices is re- quired, the agency shall proceed to make the necessary modifications. Any new operating or staff divisions estab- lished within the agency shall have one year from the date of their establish- ment to carry out this evaluation. 520 Dept. of Health and Human Services § 85.21 (b) The agency shall provide an op- portunity to interested persons, includ- ing individuals with handicaps or orga- nizations representing individuals with handicaps, to participate in the self- evaluation by submitting comments ( op- portunity to interested persons, includ- ing individuals with handicaps or orga- nizations representing individuals with handicaps, to participate in the self- evaluation by submitting comments (both oral and written). (c) The agency shall, for at least three years following completion of the self-evaluation, maintain on file and make available for public inspection and copying— (1) A description of areas examined and any problems identified; and (2) A description of any modifications made. § 85.12 Notice. The agency shall make available to employees, applicants, participants, beneficiaries, and other interested per- sons such information regarding the provisions of this part and its applica- bility to the programs or activities conducted by the agency, and make such information available to them in such a manner as the agency head finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this part. §§ 85.13–85.20 [Reserved] § 85.21 General prohibitions against discrimination. (a) No qualified individual with handicaps shall, on the basis of handi- cap, be excluded from participation in, be denied the benefits of, or othe § 85.21 General prohibitions against discrimination. (a) No qualified individual with handicaps shall, on the basis of handi- cap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency. (b) (1) The agency, in providing any aid, benefit, or service, may not, di- rectly or through contractual, licens- ing, or other arrangements, on the basis of handicap— (i) Deny a qualified individual with handicaps the opportunity to partici- pate in or benefit from the aid, benefit, or service; (ii) Afford a qualified individual with handicaps an opportunity to partici- pate in or benefit from the aid, benefit, or service that is not equal to that af- forded others; (iii) Provide a qualified individual with handicaps with an aid, benefit, or service that is not as effective in af- fording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achieve- ment as that provided to others; (iv) Provide different or separate aids, benefits, or services to individuals with handicaps or to any class or indi- viduals with handicaps than is provided to others ment as that provided to others; (iv) Provide different or separate aids, benefits, or services to individuals with handicaps or to any class or indi- viduals with handicaps than is provided to others unless such action is nec- essary to provide qualified individuals with handicaps with aids, benefits or services that are as effective as those provided to others; (v) Deny a qualified individual with handicaps the opportunity to partici- pate as a member of a planning or advi- sory board; or (vi) Otherwise limit a qualified indi- vidual with handicaps in the enjoy- ment of any right, privilege, advan- tage, or opportunity enjoyed by others receiving the aid, benefit, or service. (2) The agency may not deny a quali- fied individual with handicaps the op- portunity to participate in programs or activities that are not separate or dif- ferent, despite the existence of permis- sibly separate or different programs or activities. (3) The agency may not, directly or through contractual or other arrange- ments, utilize criteria or methods of administration the purpose or effect of which would— (i) Subject qualified individuals with handicaps to discrimination on the basis of handicap; or (i r arrange- ments, utilize criteria or methods of administration the purpose or effect of which would— (i) Subject qualified individuals with handicaps to discrimination on the basis of handicap; or (ii) Defeat or substantially impair ac- complishment of the objectives of a program or activity with respect to in- dividuals with handicaps. (4) The agency may not, in deter- mining the site or location of a facil- ity, make selections the purpose or ef- fect of which would— (i) Exclude individuals with handi- caps from, deny them the benefits of, or otherwise subject them to discrimi- nation under any program or activity conducted by the agency; or (ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with handicaps. (5) The agency, in the selection of procurement contractors, may not use 521 §§ 85.22–85.30 45 CFR Subtitle A (10–1–24 Edition) criteria that subject qualified individ- uals with handicaps to discrimination on the basis of handicap. (6) The agency may not administer a licensing or certification program in a manner that subjects qualified individ- uals with handicaps to discrimination on the basis of ha n on the basis of handicap. (6) The agency may not administer a licensing or certification program in a manner that subjects qualified individ- uals with handicaps to discrimination on the basis of handicap, nor may the agency establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with handicaps to discrimi- nation on the basis of handicap. How- ever, the programs or activities of enti- ties that are licensed or certified by the agency are not, themselves, cov- ered by this part. (c) The exclusion of individuals with- out handicaps from the benefits of a program limited by Federal statute or Executive order to individuals with handicaps or the exclusion of a specific class of individuals with handicaps from a program limited by Federal statute or Executive order to a dif- ferent class of individuals with handi- caps is not prohibited by this part. (d) The agency shall administer pro- grams and activities in the most inte- grated setting appropriate to the needs of qualified individuals with handicaps. §§ 85.22–85.30 [Reserved] § 85.31 Employment. No qualified individuals with handi- caps shall, on the basis of han nte- grated setting appropriate to the needs of qualified individuals with handicaps. §§ 85.22–85.30 [Reserved] § 85.31 Employment. No qualified individuals with handi- caps shall, on the basis of handicap, be subjected to discrimination in employ- ment under any program or activity conducted by the agency. The defini- tions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (9 U.S.C. 791), as established by the Equal Employment Opportunity Com- mission in 9 CFR part 1613, shall apply to employment in federally conducted programs and activities. §§ 85.32–85.40 [Reserved] § 85.41 Program accessibility: Dis- crimination prohibited. Except as otherwise provided in § 85.42, no qualified individual with handicaps shall, because the agency’s facilities are inaccessible to or unus- able by such persons, be denied the benefits of, be excluded from participa- tion in, or otherwise be subjected to discrimination under any program or activity conducted by the agency. § 85.42 Program accessibility: Existing facilities. (a) General. The agency shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to 85.42 Program accessibility: Existing facilities. (a) General. The agency shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with handicaps. This paragraph does not— (1) Necessarily require the agency to make each of its existing facilities ac- cessible to and usable by individuals with handicaps; or (2) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the pro- fundamentally posed action would alter the program or activity or would result in undue financial and adminis- trative burdens, the agency has the burden of proving that compliance with § 85.42(a) would result in such alter- ation or burdens. The decision that compliance would result in such alter- ation or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and op- eration of the conducted program or activity in question, and must be ac- compan the agency head or his or her designee after considering all agency resources available for use in the funding and op- eration of the conducted program or activity in question, and must be ac- companied by a written statement of reasons for reaching that conclusion. If an action would result in such an alter- ation or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with handicaps receive the benefits and services of the pro- gram or activity. (b) Methods. (1) The agency may com- ply with the requirements of this sec- tion through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, de- livery of services at alternate acces- sible sites, alteration of existing facili- ties and construction of new facilities, use of accessible rolling stock, or any other methods that result in making its programs or activities readily ac- cessible to and usable by individuals 522 Dept. of Health and Human Services § 85.51 with handicaps. The agency is not re- quired to make structural changes in existing f ams or activities readily ac- cessible to and usable by individuals 522 Dept. of Health and Human Services § 85.51 with handicaps. The agency is not re- quired to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. The agency, in mak- ing alterations to existing buildings, shall meet accessibility requirements to the extent compelled by the Archi- tectural Barriers Act of 1968, as amend- ed (42 U.S.C. 4151–4157), and any regula- tions implementing it. (2) In choosing among available methods for meeting the requirements of this section, the agency shall give priority to those methods that offer programs and activities to qualified in- dividuals with handicaps in the most integrated setting appropriate. (c) Time period for compliance. The agency shall comply with the obliga- tions established under this section within 60 days of the effective date of this part except where structural changes in facilities are undertaken; such changes shall be made within three years of the effective date of this part, but, in any event, as expedi- tiously as possible. (d) Transition plan. In the event that structural changes to f ken; such changes shall be made within three years of the effective date of this part, but, in any event, as expedi- tiously as possible. (d) Transition plan. In the event that structural changes to facilities must be undertaken to achieve program acces- sibility, and it is not expected that such changes can be completed within six months, the agency shall develop, within six months of the effective date of this part, a transition plan setting forth the steps necessary to complete such changes. The agency shall provide an opportunity to interested persons, including individuals with handicaps or organizations representing individuals with handicaps, to participate in the development of the transition plan by submitting comments (both oral and written). A copy of the transition plan shall be made available for public in- spection. The plan shall, at a min- imum— (1) Identify physical obstacles in the agency’s facilities that limit the acces- sibility of its programs or activities to individuals with handicaps; (2) Describe in detail the methods that will be used to make the facilities accessible; (3) Specify the schedule for taking the steps necessary to achieve compli- ance with th ividuals with handicaps; (2) Describe in detail the methods that will be used to make the facilities accessible; (3) Specify the schedule for taking the steps necessary to achieve compli- ance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the tran- sition period; and (4) Indicate the official responsible for the implementation of the plan. § 85.43 Program accessibility: New construction and alterations. Each building or part of a building that is constructed or altered by, or on behalf of, or for the use of the agency shall be designed, constructed, or al- tered so as to be readily accessible to and usable by individuals with handi- caps. The definitions, requirements, and standards of the Architectural Bar- riers Act (42 U.S.C. 4151–4157) as estab- lished in 41 CFR 101–19.600 to 101–19.607 apply to buildings covered by this sec- tion. §§ 85.44–85.50 [Reserved] § 85.51 Communications. (a) The agency shall take appropriate steps to ensure effective communica- tion with applicants, participants, per- sonnel of other Federal entities, and members of the public. (1) The agency shall furnis The agency shall take appropriate steps to ensure effective communica- tion with applicants, participants, per- sonnel of other Federal entities, and members of the public. (1) The agency shall furnish appro- priate auxiliary aids where necessary to afford an individual with handicaps an equal opportunity to participate in, and enjoy the benefits of, program or activity conducted by the agency. (i) In determining what type of auxil- iary aid is necessary, the agency shall give primary consideration to the re- quests of the individual with handi- caps. (ii) The agency need not provide indi- vidually prescribed devices, readers for personal use or study, or other devices of a personal nature. (2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunications devices for deaf persons (TDD’s) or equally ef- systems telecommunication fective shall be used to communicate with per- sons with impaired hearing. (b) The agency shall ensure that in- terested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, ac- tivities, and facilities. 523 §§ 85.52–85.60 45 CFR Subtitle ons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, ac- tivities, and facilities. 523 §§ 85.52–85.60 45 CFR Subtitle A (10–1–24 Edition) (c) The agency shall provide signage at a primary entrance to each of its in- accessible facilities, directing users to a location at which they can obtain in- formation about accessible facilities. The international symbol for accessi- bility shall be used at each primary en- trance of an accessible facility. (d) This section does not require the agency to take any action that it can demonstrate would result in a funda- mental alteration in the nature of a program or activity or in undue finan- cial and administrative burdens. In those circumstances where agency per- sonnel believe that the proposed action would fundamentally alter the program or activity or would result in undue fi- nancial and administrative burdens, the agency has the burden of proving that compliance with § 85.51 would re- sult in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after cons nce with § 85.51 would re- sult in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the fund- ing and operation of the conducted pro- gram or activity in question and must be accompanied by a written statement of the reasons for reaching that conclu- sion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alter- ation or such burdens but would never- theless ensure that, to the maximum extent possible, individuals with handi- caps receive the benefits and services of the program or activity. §§ 85.52–85.60 [Reserved] § 85.61 Compliance procedures. (a) Except as provided in paragraph (c) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs or activities conducted by the agency. (b) Responsibility for the implemen- tation and operation of this section shall be vested in the CCR Director/ Special Assistant. (c) The agency shall process com- p ctivities conducted by the agency. (b) Responsibility for the implemen- tation and operation of this section shall be vested in the CCR Director/ Special Assistant. (c) The agency shall process com- plaints alleging violations of section 504 with respect to employment accord- ing to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursu- ant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791) and HHS In- struction 1613–3. Part 1613 requires complainants to obtain pre-complaint counseling within 30 days of the alleged discriminatory act, and to file com- plaints within 15 days of the close of counseling. Responsibility for the ac- ceptance, investigation, and the ren- dering of decisions with respect to em- ployment complaints is vested in the Assistant Secretary for Personnel Ad- ministration. (d) OCR shall accept and investigate all complete complaints for which it has jurisdiction. All complete com- plaints must be filed within 180 days of the alleged act of discrimination. OCR may extend this time for good cause. (e) If OCR receives a complaint over which it does not have jurisdiction, it shall promptly notify the complai n 180 days of the alleged act of discrimination. OCR may extend this time for good cause. (e) If OCR receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate Federal government entity. (f) OCR shall notify the Architectural and Transportation Barriers Compli- ance Board upon receipt of any com- plaint alleging that a building or facil- ity that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151–4157), is not readily acces- sible to and usable by individuals with handicaps. (g) Within 180 days of the receipt of a complete complaint for which it has ju- risdiction, OCR shall notify the com- plainant of the results of the investiga- tions in a letter containing— (1) Findings of fact and conclusions of law; (2) A description of a remedy for each violation found; and (3) A notice of the right to appeal. (h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 60 days of receipt from the agency of the letter required by § 85.61(g). OCR may extend this time for good cause. (i) Timely a nd conclusions of law or remedies must be filed by the complainant within 60 days of receipt from the agency of the letter required by § 85.61(g). OCR may extend this time for good cause. (i) Timely appeals shall be accepted and processed by the OCR Director/Spe- cial Assistant. Decisions on such ap- peals shall not be heard by the person who made the initial decision. (j) OCR shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If 524 Dept. of Health and Human Services Pt. 85, Nt. OCR determines that it needs addi- tional information from the complain- ant, it shall have 60 days from the date it receives the additional information to make its determination on the ap- peal. (k) The time limits cited in (g) and (j) above may be extended with the per- mission of the Assistant Attorney Gen- eral. (l) The agency may delegate its au- thority for conducting complaint in- vestigations to a component agency or other Federal agencies, except that the authority for making the final deter- mination may not be delegated. [53 FR 25603, July 8, 1988; 53 FR 26559, July 13, 1988] § 85.62 Coordination and compliance responsibilities. (a) Each compo at the authority for making the final deter- mination may not be delegated. [53 FR 25603, July 8, 1988; 53 FR 26559, July 13, 1988] § 85.62 Coordination and compliance responsibilities. (a) Each component agency shall be primarily responsible for compliance with this part in connection with the programs and activities it conducts. (b) The OCR Director/Special Assist- ant shall have the overall responsi- bility to coordinate implementation of this part. The OCR Director/Special As- sistant shall have authority to conduct investigations, to conduct compliance reviews, and to initiate such other ac- tions as may be necessary to facilitate and ensure effective implementation of and compliance with, this part. (c) If as a result of an investigation or in connection with any other com- pliance or implementation activity, the OCR Director/Special Assistant de- termines that a component agency ap- pears to be in noncompliance with its responsibilities under this part, OCR will undertake appropriate action with the component agency to assure com- pliance. In the event that OCR and the component agency are unable to agree on a resolution of any particular mat- ter, the matter shall be submit riate action with the component agency to assure com- pliance. In the event that OCR and the component agency are unable to agree on a resolution of any particular mat- ter, the matter shall be submitted to the Secretary for resolution. EDITORIAL NOTE: At the request of the De- partment of Health and Human Services, the ‘‘Section-by-Section Analysis’’ portion of the preamble of the document published at 53 FR 25595, July 8, 1988, as corrected at 53 FR 26559, July 13, 1988, follows: SECTION-BY-SECTION ANALYSIS OF REGULATION AND RESPONSE TO COMMENTS Where no discussion of comments follows the analysis of a section, no comments have been received thereon. Section 85.1 Purpose. Section 85.1 states the purpose of the rule, which is to effectuate section 119 of the Re- habilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Reha- bilitation Act of 1973 to prohibit discrimina- tion on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service. Section 85.2 Application. The proposed regulation covers all pro- grams and activities conducted by the De- partment of Health ties conducted by Executive agencies or the United States Postal Service. Section 85.2 Application. The proposed regulation covers all pro- grams and activities conducted by the De- partment of Health and Human Services (‘‘HHS’’ or the ‘‘agency’’). This includes the following components: The Office of the Secretary Office of the Under Secretary Office of the Deputy Under Secretary Office of the Assistant Secretary for Public Affairs Office of the Assistant Secretary for Legis- lation Office of the Assistant Secretary for Plan- ning and Evaluation Office of the Assistant Secretary for Man- agement and Budget Office of the Assistant Secretary for Peronnel Administration Office of the General Counsel Office of Inspector General Office for Civil Rights Office of Consumer Affairs Office of Human Development Services Office of the Assistant Secretary for Human Development Services Administration on Aging Administration for Children, Youth and Families Administration for Native Americans Administration on Developmental Disabil- ities Public Health Service Office of the Assistant Secretary for Health Agency for Toxic Substances and Disease Registry Alcohol, Drug Abuse and Mental Health Adm nistration on Developmental Disabil- ities Public Health Service Office of the Assistant Secretary for Health Agency for Toxic Substances and Disease Registry Alcohol, Drug Abuse and Mental Health Administration Centers for Disease Control Food and Drug Administration Health Resources and Services Administra- tion Indian Health Service National Institutes of Health Health Care Financing Administration Social Security Administration Family Support Administration. 525 Pt. 85, Nt. 45 CFR Subtitle A (10–1–24 Edition) Under this section, a federally conducted program or activity is, in simple terms, any- thing a Federal agency does. Aside from em- ployment, there are two major categories of federally conducted programs or activities covered by this regulation: those involving general public contact as part of ongoing agency operations, and those directly admin- istered by the agency for program bene- ficiaries and participants. Activities in the first category include communication with the public (telephone contacts, office walk- ins, or interviews) and the public’s use of the agency’s facilities. Activities in the second category include programs that provide Fed- eral services or ben public (telephone contacts, office walk- ins, or interviews) and the public’s use of the agency’s facilities. Activities in the second category include programs that provide Fed- eral services or benefits. This regulation does not, however, apply to programs or ac- tivities conducted outside the United States that do not involve individuals with handi- caps in the United States. The major programs subject to this regula- tion are listed below. Each of the compo- nents listed above occupies facilities which the public may have occasion to visit, en- gages in written and oral communication with the public, and hires Federal employ- ees. In addition, some components operate programs which involve extensive public use, as summarized below: Office of the Secretary—No major oper- ating programs or activities conducted directly by the Federal government. Office of Human Development Services— No major operating programs or activi- ties conducted directly by the Federal government. 1 Public Health Service—Directly operated programs include the Indian Health Serv- ice, and intramural research conducted by the National Institutes of Health. 1 Health Care Financing Administration— Directly op alth Service—Directly operated programs include the Indian Health Serv- ice, and intramural research conducted by the National Institutes of Health. 1 Health Care Financing Administration— Directly operates the Medicare pro- gram. 1 Social Security Administration—Directly operates the Old Age, Survivors, and Dis- ability Insurance, and Supplemental Se- curity Income for the Aged, Blind, and Disabled programs. Family Support Administration—No major operating programs or activities con- ducted directly by the Federal govern- ment. 1 One commenter urged the inclusion of a program operated by one component of the Office of the Secretary, and for a list of all programs and activities to be appended to the regulation. In light of the fact that all programs and activities are covered, that a comprehensive list of all programs would be very lengthy, and that such a list would have 1 Financial assistance programs conducted through grants to States and other recipi- ents are covered by the section 504 rule for federally assisted programs at 45 CFR part 84. to be amended frequently as new programs are enacted and existing programs expire, the above list appears to be sufficient. Section 85.3 on 504 rule for federally assisted programs at 45 CFR part 84. to be amended frequently as new programs are enacted and existing programs expire, the above list appears to be sufficient. Section 85.3 Definitions. Agency. For purposes of this part agency means the Department of Health and Human Services or any component part of the De- partment of Health and Human Services that conducts a program or activity covered by this part. Component agency means any such component part. Assistant Attorney General. Assistant Attor- ney General refers to the Assistant Attorney General, Civil Rights Division, United States Department of Justice. Auxiliary aids. Auxiliary aids means services or devices that enable persons with impaired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, the agency’s programs or activities. The definition provides exam- ples of commonly used auxiliary aids. Al- though auxiliary aids are required explicitly only by § 85.51(a)(1), they may also be nec- essary to meet other requirements of this regulation. Two commenters suggested expanding the definition of auxiliary aids and one of them further suggested re y by § 85.51(a)(1), they may also be nec- essary to meet other requirements of this regulation. Two commenters suggested expanding the definition of auxiliary aids and one of them further suggested re-naming auxiliary aids to read aids for reasonable accommodation and specifically include the services of attend- ants. The items set out in § 85.3 are clearly de- scribed as examples, and are not intended to constitute an exhaustive list. By giving ex- amples rather than by including a list, other aids can be used, and, in appropriate cases, required, without amending the regulation. In certain instances, the services of attend- ants may indeed be appropriate; in those in- stances, they will fall under the definition in § 85.3. Therefore, there is no need to change the text of the regulations. Complete complaint. Complete complaint is defined to include all of the information nec- essary to enable the agency to investigate the complaint. The definition is necessary, because the 180 day period for the agency’s investigation (see § 85.61(g)) begins when the agency receives a complete complaint. Two commenters stated their belief that the definition of complete complaint is too re- stric riod for the agency’s investigation (see § 85.61(g)) begins when the agency receives a complete complaint. Two commenters stated their belief that the definition of complete complaint is too re- strictive, and urged language which would give the complainant specific information as to what additional information is needed, and a further 30 days to submit such infor- mation, failing which the complaint would be dismissed without prejudice, and the com- plainant would be so informed. Procedures similar to this suggestion are currently in place, and complainants will be given reasonable opportunities to complete the information submitted. There appears to be no need to spell these procedures out in the regulation. 526 Dept. of Health and Human Services Pt. 85, Nt. Facility. The definition of facility is similar to that in the section 504 coordination regu- lation for federally assisted programs (28 CFR 41.3(f)), except that the term rolling stock or other conveyances has been added and the phrase or interest in such property has been deleted because the term facility, as used in this part, refers to structures and not to intangible property rights. It should, how- ever, be noted that t phrase or interest in such property has been deleted because the term facility, as used in this part, refers to structures and not to intangible property rights. It should, how- ever, be noted that this part applies to all programs and activities conducted by the agency regardless of whether the facility in which they are conducted is owned, leased, or used on some other basis by the agency. The term facility is used in §§ 85.41, 85.42, and 85.61(f). One commenter proposed not to delete the phrase or interest in such property. As pre- viously stated, the phrase or interest in such property has been deleted because the term facility, as used in this part, refers to struc- tures and not to intangible property rights. Individual with Handicaps. The definition of individual with handicaps is identical to the definition of handicapped person appearing in the section 504 coordination regulation for federally assisted programs (28 CFR 41.31), and the HHS regulation for federally assisted programs (45 CFR 84.3(j)). Although section 103(d) of the Rehabilitation Act Amendments of 1986 changed the statutory term handi- capped individual to individual with handicaps, the legislative history o grams (45 CFR 84.3(j)). Although section 103(d) of the Rehabilitation Act Amendments of 1986 changed the statutory term handi- capped individual to individual with handicaps, the legislative history of the amendment in- dicates that no substantive change was in- tended. Thus, although the term has been changed in this regulation to be consistent with the statute as amended, the definition is unchanged. In particular, although the term as revised refers to handicaps in the plural, it does not exclude persons who have only one handicap. One commenter suggested that we add sen- sory to the phrase physical or mental impair- ment. Since the definition set out in § 85.3 specifically includes the sense organs among the body systems whose impairment con- stitutes a handicap, we have not found it necessary to amend the regulation. OCR. OCR means the Office for Civil Rights of the Department of Health and Human Services. OCR Director/Special Assistant means the Director of the Office for Civil Rights, who serves concurrently as the Special Assistant to the Secretary for Civil Rights, or a des- ignee of the OCR Director/Special Assistant. Qualified individual with handicaps. The def- inition ights, who serves concurrently as the Special Assistant to the Secretary for Civil Rights, or a des- ignee of the OCR Director/Special Assistant. Qualified individual with handicaps. The def- inition of qualified individual with handicaps is a revised version of the definition of quali- fied handicapped person appearing in the sec- tion 504 coordination regulation for federally assisted programs (28 CFR 41.32) and the HHS section 504 regulation for federally assisted programs (45 CFR 84.3(k)). Paragraph (1) is an adaptation of existing definitions of qualified handicapped person for purposes of federally assisted preschool, ele- mentary, and secondary education programs (see, e.g., 45 CFR 84.3(k)(2)). It provides that an individual with handicaps is qualified for preschool, elementary, or secondary edu- cation programs conducted by the agency, if he or she is a member of a class of persons otherwise entitled by statute, regulation, or agency policy to receive these services from the agency. In other words, an individual with handicaps is qualified if, considering all factors other than the handicapping condi- tion, he or she is entitled to receive edu- cational services from the ag ency. In other words, an individual with handicaps is qualified if, considering all factors other than the handicapping condi- tion, he or she is entitled to receive edu- cational services from the agency. Paragraph (2) deviates from existing regu- lations for federally assisted programs be- cause of intervening court decisions. It de- fines qualified individual with handicaps with regard to any program other than those cov- ered by paragraph (1) under which a person is required to perform services or to achieve a level of accomplishment. In such programs, a qualified individual with handicaps is one who can achieve the purpose of the program without modifications in the program that the agency can demonstrate would result in a fundamental alteration in its nature. This definition reflects the decision of the Su- preme Court in Davis. In that case, the Court ruled that a hear- ing-impaired applicant to a nursing school was not a qualified handicapped person be- cause her hearing impairment would prevent her from participating in the clinical train- ing portion of the program. The Court found that, if the program were modified so as to enable the respondent to participate (by ex- em ment would prevent her from participating in the clinical train- ing portion of the program. The Court found that, if the program were modified so as to enable the respondent to participate (by ex- empting her from the clinical training re- quirements), she would not receive even a rough equivalent of the training a nursing pro- gram normally gives. Id. at 410. It also found that the purpose of [the] program was to train persons who could serve the nursing profession in all customary ways, Id. at 413, and that the respondent would be unable, because of her hearing impairment, to perform some func- tions expected of a registered nurse. It, therefore, concluded that the school was not required by section 504 to make such modi- fications that would result in a fundamental alteration in the nature of the program. Id. at 410. We have incorporated the Court’s language in the definition of qualified individual with handicaps in order to make clear that such a person must be able to participate in the program offered by the agency. The agency is required to make modifications in order to enable an applicant with handicaps to par- ticipate, but is not required to offer a pro- gram of a fund e in the program offered by the agency. The agency is required to make modifications in order to enable an applicant with handicaps to par- ticipate, but is not required to offer a pro- gram of a fundamentally different nature. The test is whether, with appropriate modi- fications, the applicant can achieve the pur- pose of the program offered, not whether the applicant could benefit or obtain results from some other program that the agency does not offer. Although the revised defini- tion allows exclusion of some individuals 527 Pt. 85, Nt. 45 CFR Subtitle A (10–1–24 Edition) with handicaps from some programs, it re- quires that an individual with handicaps who is capable of achieving the purpose of the program must be accommodated, provided that the modifications do not fundamentally alter the purpose of the program. One commenter proposed inserting the sec- ond sentence from the above paragraph into the regulatory text. We believe that the use of this language in the preamble is suffi- cient. Another commenter commended HHS for the discussion of Davis, and the cases inter- preting the Davis decision, in order to ex- plain why the language of this part does not precisely track th fi- cient. Another commenter commended HHS for the discussion of Davis, and the cases inter- preting the Davis decision, in order to ex- plain why the language of this part does not precisely track that of the regulations con- cerning federally assisted recipients (45 CFR part 84). Two other commenters stated their view that incorporating Davis and Alexander into the regulation was unduly restrictive, and that the differences between this part and part 84 would result in holding HHS to a lesser standard than HHS holds recipients of Federal financial assistance. We believe that the Supreme Court’s deci- sion in Davis as well as the subsequent lower court decisions following Davis interpret sec- tion 504 and that it is necessary to reflect those decisions in the Department’s regula- tion. The suggested changes are therefore not being adopted. The agency has the burden of dem- onstrating that a proposed modification would constitute a fundamental alteration in the nature of its program or activity. Fur- thermore, in demonstrating that a modifica- tion would result in such an alteration, the agency must follow the procedures estab- lished in §§ 85.42(a) and 85.51(d), which are dis- cus activity. Fur- thermore, in demonstrating that a modifica- tion would result in such an alteration, the agency must follow the procedures estab- lished in §§ 85.42(a) and 85.51(d), which are dis- cussed below, for demonstrating that an ac- tion would result in undue financial and ad- ministrative burdens to the agency. That is, the decision must be made by the agency head or his or her designee in writing after consideration of all resources which are le- gally available to the agency for the purpose, and must be accompanied by an explanation of the reasons for the decision. If the agency head determines that an action would result in a fundamental alteration, the agency must consider options that would enable the individual with handicaps to achieve the pur- pose of the program but would not result in such an alteration. Two commenters suggested that the total resources of the agency be considered in de- termining undue burden. Because many De- partment funds are earmarked for specific purposes and are therefore unavailable for use elsewhere, the entire agency budget is not an appropriate consideration. For programs or activities which do not fall under either of the first two pa ic purposes and are therefore unavailable for use elsewhere, the entire agency budget is not an appropriate consideration. For programs or activities which do not fall under either of the first two paragraphs, paragraph (3) adopts the existing definition of qualified handicapped person with respect to services (28 CFR 41.32(b)) in the coordina- tion regulation for programs receiving Fed- eral financial assistance. Under this defini- tion, a qualified individual with handicaps is an individual with handicaps who meets the essential eligibility requirements for partici- pation in the program or activity. Paragraph (4) explains that qualified indi- vidual with handicaps means qualified handi- capped person as that term is defined for pur- poses of employment in the EEOC regulation at 29 CFR 1613.702(f), which is made applica- ble to this part by § 85.31. Nothing in this part changes existing regulations pertaining to employment. One commenter proposed using the general section 504 definition of qualified handicapped person in employment cases rather than the definition of the EEOC regulation. The defi- nition has been supplied by the Equal Em- ployment Opportunity Commission which coo ion of qualified handicapped person in employment cases rather than the definition of the EEOC regulation. The defi- nition has been supplied by the Equal Em- ployment Opportunity Commission which coordinates all employment discrimination matters throughout the government. It is also the Department’s view that it is impor- tant to have a uniform definition of what constitutes discrimination throughout the Federal government. employment Secretary means the Secretary of the De- partment of Health and Human Services or the Secretary’s designee. Section 504. This definition makes clear that, as used in this part, section 504 applies only to programs or activities conducted by the agency itself and not to programs or ac- tivities to which it provides Federal finan- cial assistance. Section 85.11 Self-evaluation. The agency shall conduct a self-evaluation of its compliance with section 504 within one year of the effective date of this regulation. The self-evaluation requirement is present in the existing section 504 coordination regula- tion for programs or activities receiving Federal (28 CFR financial assistance 41.5(b)(2)) and the HHS regulations for feder- ally assisted programs (45 the existing section 504 coordination regula- tion for programs or activities receiving Federal (28 CFR financial assistance 41.5(b)(2)) and the HHS regulations for feder- ally assisted programs (45 CFR 84.6(k)). Expe- rience has demonstrated the self-evaluation process to be a valuable means of estab- lishing a working relationship with individ- uals with handicaps that promotes both ef- fective and efficient implementation of sec- tion 504. One commenter stated that a three-year retention period is insufficient, and proposed that self-evaluations be kept indefinitely. The regulation requires the self-evaluation to be kept for a minimum of three years, but does not include a maximum. It is expected that the self-evaluation will be retained for the period provided in current document re- tention policies. Another commenter proposed that copies of the self-evaluation be made available for copying as well as for public inspection. This proposal has been adopted. A further commenter proposed the inclu- sion of provisions for assurances, transition 528 Dept. of Health and Human Services Pt. 85, Nt. plans and specific modification require- ments. We believe that while assurances are ap osed the inclu- sion of provisions for assurances, transition 528 Dept. of Health and Human Services Pt. 85, Nt. plans and specific modification require- ments. We believe that while assurances are appropriate—and can be specifically en- forced—in section 504 regulations for feder- ally assisted programs or activities, all of the entities involved in this part are under the control of the Secretary, who can issue the necessary directives; assurances are therefore not required. The final rule provides for participation in the self-evaluation process by individuals with handicaps or organizations representing individuals with handicaps by submitting comments, which may include the develop- ment of transition plans. It is expected that component agencies will consult with indi- viduals with handicaps among their own staff in the course of preparing self-evalua- tions. Because modification requirements are in- tended to address any potential problems in the agency’s programs or activities, they are not specified in the regulation. Section 85.12 Notice. Section 85.12 requires the agency to dis- seminate sufficient information to employ- ees, applicants, participants, beneficiaries, and they are not specified in the regulation. Section 85.12 Notice. Section 85.12 requires the agency to dis- seminate sufficient information to employ- ees, applicants, participants, beneficiaries, and other interested persons to apprise them of the rights and protections afforded by sec- tion 504 and this part. Methods of providing this information include, for example, the publication of information in handbooks, manuals, and pamphlets that are distributed to the public to describe the agency’s pro- grams and activities or in connection with recruitment; the display of informative post- ers in service centers and other public places; or the broadcasting of information by television or radio. One commenter suggested the inclusion of a reference to recruitment materials in the above examples. Such a reference has been included. Section 85.21 General prohibitions against discrimination. Section 85.21 is an adaptation of the cor- responding section of the section 504 coordi- nation regulation for programs and activi- ties receiving Federal financial assistance (28 CFR 41.51). Paragraph (a) restates the nondiscrimina- tion mandate of section 504. The remaining paragraphs in § 85.21 esta ion for programs and activi- ties receiving Federal financial assistance (28 CFR 41.51). Paragraph (a) restates the nondiscrimina- tion mandate of section 504. The remaining paragraphs in § 85.21 establish the general principles for analyzing whether any par- ticular action of the agency violates this mandate. These principles serve as the ana- lytical foundation for the remaining sections of the part. If the agency violates a provision in any of the subsequent sections, it will also violate one of the general prohibitions found in § 85.21. When there is no applicable subse- quent provision, the general prohibitions stated in this section apply. Paragraph (b) prohibits overt denials of equal treatment of individuals with handi- caps. The agency may not refuse to provide an individual with handicaps with an equal opportunity to participate in or benefit from its program simply because the person is handicapped. Such blatantly exclusionary practices could result from the use of irrebuttable presumptions that absolutely exclude certain classes of disabled persons (e.g., epileptics, hearing-impaired persons, persons with heart ailments) from participa- tion in programs or activities wi ble presumptions that absolutely exclude certain classes of disabled persons (e.g., epileptics, hearing-impaired persons, persons with heart ailments) from participa- tion in programs or activities without regard to an individual’s actual ability to partici- pate. Use of an irrebuttable presumption is permissible only when in all cases a physical condition by its very nature would prevent an individual from meeting the essential eli- gibility requirements for participation in the activity in question. It would be permissible, therefore, to exclude without an individual evaluation all persons who are blind in both eyes from eligibility for a license to operate a commercial vehicle in interstate com- merce; but it may not be permissible to automatically disqualify all those who are blind in just one eye. In addition, section 504 prohibits more than just the most obvious denials of equal treatment. It is not enough to admit persons in wheelchairs to a program if the facilities in which the program is conducted are inac- cessible. Paragraph (b)(1)(iii), therefore, re- quires that the opportunity to participate or benefit afforded to an individual with handi- caps be as effective as tha e program is conducted are inac- cessible. Paragraph (b)(1)(iii), therefore, re- quires that the opportunity to participate or benefit afforded to an individual with handi- caps be as effective as that afforded to oth- ers. The later sections on program accessi- bility (§§ 85.41–43) and communication (§ 85.51) are specific applications of this principle. Despite the mandate of paragraph (d) that the agency administer its programs and ac- tivities in the most integrated setting appro- priate to the needs of qualified individuals with handicaps, paragraph (b)(1)(iv), in con- junction with paragraph (d), permits the agency to develop separate or different aids, benefits, or services when necessary to pro- vide individuals with handicaps with an equal opportunity to participate in or ben- efit from the agency’s programs or activi- ties. Paragraph (b)(1)(iv) requires that dif- ferent or separate aids, benefits, or services be provided only when necessary to ensure that the aids, benefits, or services are as ef- fective as those provided to others. Even when separate or different aids, benefits or services would be more effective, paragraph (b)(2) provides that a qualified individual wit r services are as ef- fective as those provided to others. Even when separate or different aids, benefits or services would be more effective, paragraph (b)(2) provides that a qualified individual with handicaps still has the right to choose to participate in the program that is not de- signed to accommodate individuals with handicaps. Paragraph (b)(1)(v) prohibits the agency from denying a qualified individual with handicaps the opportunity to participate as a member of a planning or advisory board. 529 Pt. 85, Nt. 45 CFR Subtitle A (10–1–24 Edition) Paragraph (b)(1)(vi) prohibits the agency from limiting a qualified individual with handicaps in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving any aid, benefit, or serv- ice. Paragraph (b)(3) prohibits the agency from utilizing criteria or methods of administra- tion that deny individuals with handicaps access to the agency’s programs or activi- ties. The phrase criteria or methods of adminis- tration refers to official written agency poli- cies, as well as the actual practices of the agency. This paragraph prohibits both bla- tantly exclusionary policies or practices and nonessential pol - tration refers to official written agency poli- cies, as well as the actual practices of the agency. This paragraph prohibits both bla- tantly exclusionary policies or practices and nonessential policies and practices that are neutral on their face, but deny individuals with handicaps an effective opportunity to participate. Paragraph (b)(4) specifically applies the prohibition enunciated in § 85.21(b)(3) to the process of selecting sites for construction of new facilities or existing facilities to be used by the agency. Paragraph (b)(4) does not apply to construction of additional buildings at an existing site. Paragraph (b)(5) prohibits the agency, in the selection of procurement contractors, from using criteria that subject qualified in- dividuals with handicaps to discrimination on the basis of handicap. Paragraph (b)(6) prohibits the agency from discriminating against qualified individuals with handicaps on the basis of handicap in the granting of licenses or certifications. A person is a qualified individual with handicaps with respect to licensing or certification if he or she can meet the essential eligibility requirements for receiving the license or cer- tification (see erson is a qualified individual with handicaps with respect to licensing or certification if he or she can meet the essential eligibility requirements for receiving the license or cer- tification (see § 85.3). In addition, the agency may not establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with handicaps to dis- crimination on the basis of handicap. For ex- ample, the agency must comply with this re- quirement when establishing safety stand- ards for the operations of licensees. In that case, the agency must ensure that the stand- ards it promulgates do not discriminate against the employment of qualified individ- uals with handicaps in an impermissible manner. Paragraph (b)(6) does not extend section 504 directly to the programs or activities of licensees or certified entities themselves. The programs or activities of Federal licens- ees or certified entities are not themselves federally conducted programs or activities; nor are they programs or activities receiving Federal financial assistance merely by vir- tue of the Federal license or certificate. However, as noted above, section 504 may af- fect the co ctivities; nor are they programs or activities receiving Federal financial assistance merely by vir- tue of the Federal license or certificate. However, as noted above, section 504 may af- fect the content of the rules established by the agency for the operation of the program or activity of the licensee or certified entity and thereby indirectly affect limited aspects of their operations. One commenter suggested pointing out that Federal licensees or certified entities, having received services from Federal em- ployees during the process of licensing or certification, thereby become Federally as- sisted recipients, and are covered by 45 CFR part 84. Such an argument is beyond the scope of this part, and is therefore not being included. Another commenter suggested including language such as that found in 45 CFR 84.4(b)(1) to the effect that agencies may not perpetuate discrimination against qualified individuals with handicaps by providing sig- nificant assistance to an agency, organiza- tion or person that discriminates on the basis of handicap. Assistance from the agen- cy that would provide significant support to an organization constitutes Federal finan- cial assistance and the a- tion or person that discriminates on the basis of handicap. Assistance from the agen- cy that would provide significant support to an organization constitutes Federal finan- cial assistance and the organization, as a re- cipient of such assistance, would be covered by the section 504 regulation for federally as- sisted programs. Paragraph (c) provides that programs con- ducted pursuant to Federal statute or Execu- tive order that are designed to benefit only individuals with handicaps or a given class of individuals with handicaps may be limited to individuals those with handicaps. Paragraph (d) provides that the agency must administer programs and activities in the most integrated setting appropriate to the next of qualified individuals with handi- caps, i.e. in a setting that enables individuals with handicaps to interact with nonhandi- capped individuals to the fullest extent pos- sible. Section 85.31 Employment. Section 85.31 prohibits discrimination on the basis of handicap in employment by the agency. Courts have held that section 504, as amended in 1978, covers the employment practices of Executive agencies. Gardner v. Morris, 752 F.2d 1271, 1277 (8th Cir. 1985); Smith v. employment by the agency. Courts have held that section 504, as amended in 1978, covers the employment practices of Executive agencies. Gardner v. Morris, 752 F.2d 1271, 1277 (8th Cir. 1985); Smith v. United States Postal Service, 742 F.2d 257, 259–60 (6th Cir. 1984); Prewitt v. United States Postal Service, 662 F.2d 292, 302–04 (5th Cir. 1981). Contra McGuiness v. United States Postal Service, 744 F.2d 1318, 1320–21 (7th Cir. 1984); Boyd v. United States Postal Service, 752 F.2d 410, 413–14 (9th Cir. 1985). Courts uniformly have held that, in order to give effect to section 501 of the Rehabili- tation Act, which covers Federal employ- ment, the administrative procedures of sec- tion 501 must be followed in processing com- plaints of employment discrimination under section 504. Morgan v. United States Postal Service, 798 F.2d 1162, 1164–65 (8th Cir. 1986); Smith, 742 F.2d at 262; Prewitt, 662 F.2d at 304. Accordingly, § 85.31 (Employment) of this rule adopts the definitions, requirements, and procedures of section 501 as established in regulations of the EEOC at 29 CFR part 530 Dept. of Health and Human Services Pt. 85, Nt. 1613. Responsibility for coordinating enforce- ment of Fed ts, and procedures of section 501 as established in regulations of the EEOC at 29 CFR part 530 Dept. of Health and Human Services Pt. 85, Nt. 1613. Responsibility for coordinating enforce- ment of Federal laws prohibiting discrimina- tion in employment is assigned to the EEOC by Executive Order 12067 (3 CFR, 1978 Comp., p. 206). Under this authority, the EEOC es- tablishes government-wide standards on non- discrimination in employment on the basis of handicap. One commenter proposed that the general definition of qualified individual with handi- caps be used in this section, instead of that used under section 501. We believe that the above paragraphs sufficiently explain the need for using the section 501 definition. In addition to this section, § 85.61(c) speci- fies that the agency will use the existing EEOC procedures to resolve allegations of employment discrimination. Section 85.41 Program accessibility: Discrimination prohibited. Section 85.41 states the general non- discrimination principle underlying the pro- gram accessibility requirements of §§ 85.42 and 85.43. Section 85.42 Program accessibility: Existing facilities. This part adopts the program accessibility concept fou on principle underlying the pro- gram accessibility requirements of §§ 85.42 and 85.43. Section 85.42 Program accessibility: Existing facilities. This part adopts the program accessibility concept found in the existing section 504 co- ordination regulation for programs or activi- ties receiving Federal financial assistance (28 CFR 41.57) with certain modifications. Thus, § 85.42 requires that each agency pro- gram or activity, when viewed in its en- tirety, be readily accessible to and usable by individuals with handicaps. The part also makes clear that the agency is not required to make each of its existing facilities acces- sible (§ 85.42(a)(1)). However, § 85.42, unlike 28 CFR 41.57, places explicit limits on the agen- cy’s obligation to ensure program accessi- bility (§ 85.42(a)(2)). One commenter stated that the provisions of § 85.42(a)(1) were negatively worded and may reflect a misinterpretation of the deci- sion of the Supreme Court in Grove City Col- lege v. Bell, 465 U.S. 555 (1984), and argued for deletion of this language. The language is identical to that in the section 504 regulation for federally assisted programs or activities. We believe that the inclusion of this (1984), and argued for deletion of this language. The language is identical to that in the section 504 regulation for federally assisted programs or activities. We believe that the inclusion of this language is necessary in order to make clear that, while every aspect of every Federal program or activity need not be accessible, each program or activity, when viewed as a whole, must be accessible. Another commenter recommended adding the language ‘‘where other methods are equally effective in achieving compliance from § 84.42(b) to § 84.42(a)(1). We believe that, because § 84.42 (a) and (b) treat different as- pects of the subject, their language must necessarily differ. Paragraph (a)(2) generally codifies recent case law that defines the scope of the agen- cy’s obligation to ensure program accessi- bility. This paragraph provides that in meet- ing the program accessibility requirement, the agency is not required to take any action that would result in a fundamental alter- ation in the nature of its program or activ- ity, or in undue financial and administrative burdens. A similar limitation is provided in § 85.51(d). This provision is based on the Su- preme Court’s holding in Sout nature of its program or activ- ity, or in undue financial and administrative burdens. A similar limitation is provided in § 85.51(d). This provision is based on the Su- preme Court’s holding in Southeastern Com- munity College v. Davis, 442 U.S. 397 (1979), that section 504 does not require program modifications that result in a fundamental alteration in the nature of a program, and on the Court’s statement that section 504 does not require modifications that would result in ‘‘undue financial and administrative bur- dens.’’ 442 U.S. at 412. Since Davis, circuit courts have applied this limitation on a showing that only one of the two ‘‘undue burdens’’ would be created as a result of the modification sought to be imposed under sec- tion 504. See, e.g., Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982); American Public Transit Association v. Lewis, 655 F.2d 1272 (D.C. Cir. 1981). Paragraph (a)(2) and § 85.51(d) are also sup- ported by the Supreme Court’s decision in Alexander v. Choate, 469 U.S. 287 (1985). Alex- ander involved a challenge to the State of Tennessee’s reduction of inpatient hospital care coverage under Medicaid from 20 to 14 days per year. Plaintiffs argued that th e, 469 U.S. 287 (1985). Alex- ander involved a challenge to the State of Tennessee’s reduction of inpatient hospital care coverage under Medicaid from 20 to 14 days per year. Plaintiffs argued that this re- duction violated section 504 because it had an adverse impact on handicapped persons. The Court assumed without deciding that section 504 reaches at least some conduct that has an unjustifiable disparate impact on handicapped people, but held that the reduc- tion was not ‘‘the sort of disparate impact’’ discrimination that might be prohibited by section 504 or its implementing regulation. Id at 299. Relying on Davis, the Court said that sec- tion 504 guarantees qualified handicapped persons ‘‘meaningful access to the benefits the grantee offers,’’ id. at 301, and that ‘‘reasonable adjustments in the nature of the benefit offered must at times be made to as- sure meaningful access.’’ Id. n.21 (emphasis added). However, section 504 does not require ‘‘ ‘changes,’ ‘adjustments,’ or ‘modifications’ to existing programs that would be ‘substan- tial’ * * * or that would constitute ‘funda- mental alteration[s] in the nature of a pro- gram.’ ’’ Id. at n.20 (citations omitted). Alex- ande ifications’ to existing programs that would be ‘substan- tial’ * * * or that would constitute ‘funda- mental alteration[s] in the nature of a pro- gram.’ ’’ Id. at n.20 (citations omitted). Alex- ander supports the position, based on Davis and the earlier lower court decisions, that in some situations, certain accommodations for a handicapped person may so alter an agen- cy’s program or activity, or entail such ex- tensive costs and administrative burdens that the refusal to undertake the accom- modations is not discriminatory. Thus, fail- ure to include such an ‘‘undue burdens’’ pro- vision could lead to judicial invalidation of 531 Pt. 85, Nt. 45 CFR Subtitle A (10–1–24 Edition) the regulation or reversal of a particular en- forcement action taken pursuant to the reg- ulation. This paragraph, however, does not estab- lish an absolute defense; it does not relieve the agency of all obligations to individuals with handicaps. Although the agency is not required to take actions that would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens, it nevertheless must take any other steps necessary to en- sure that indivi result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens, it nevertheless must take any other steps necessary to en- sure that individuals with handicaps receive the benefits and services of the federally conducted program or activity. It is our view that compliance with § 85.42(a) would in most cases not result in undue financial and administrative burdens on the agency. In determining whether fi- nancial and administrative burdens are undue, all agency resources available for use in the funding and operation of the con- ducted program or activity should be consid- ered. The burden of proving that compliance with § 85.42(a) would fundamentally alter the nature of a program or activity or would re- sult in undue financial and administrative burdens rests with the agency. The decision that compliance would result in such alter- ation or burdens must be made by the agen- cy head or his or her designee, and must be accompanied by a written statement of the reasons for reaching that conclusion. Any person who believes that he or she or any specific class of persons has been injured by the agency head’s decision or failu nied by a written statement of the reasons for reaching that conclusion. Any person who believes that he or she or any specific class of persons has been injured by the agency head’s decision or failure to make a decision may file a complaint under the compliance procedures established in § 85.61. The opportunity to file such a complaint re- sponds to one commenter’s suggestion that review by a high level Department official be assured. Paragraph (b)(1) sets forth a number of means by which program accessibility may be achieved, including redesign of equip- ment, reassignment of services to accessible buildings, and provision of aides. In choosing among methods, the agency shall give pri- ority consideration to those that will be con- sistent with provision of services in the most integrated setting appropriate to the needs of individuals with handicaps. Structural changes in existing facilities are required only when there is no other feasible way to make the agency’s program accessible. (It should be noted that ‘‘structural changes’’ include all physical changes to a facility; the term does not refer only to changes to struc- tural features, such as removal of or alter- ation to le. (It should be noted that ‘‘structural changes’’ include all physical changes to a facility; the term does not refer only to changes to struc- tural features, such as removal of or alter- ation to a load-bearing structural member.) The agency may comply with the program accessibility requirement by delivering serv- ices at alternate accessible sites or making home visits as appropriate. One commenter proposed that methods other than structural changes to ensure ac- cessibility should be ‘‘equally effective’’. The regulations implementing section 504 for fed- erally assisted programs do not contain such language. The addition of the proposed lan- guage would impose a regulatory standard on the Department not required of recipi- ents. In view of the fact that the 1978 amend- ments were intended to apply the same re- quirements to federally conducted programs as apply to federally assisted programs, the proposed language is not being adopted. Paragraphs (c) and (d) establish time peri- ods for complying with the program accessi- bility requirement. As currently required for federally assisted programs by 28 CFR 41.57(b), the agency must make any nec- essary structural changes in fa ods for complying with the program accessi- bility requirement. As currently required for federally assisted programs by 28 CFR 41.57(b), the agency must make any nec- essary structural changes in facilities as soon as practicable, but in no event later than three (3) years after the effective date of this part. Where structural modifications are required and it is not expected that these can be completed within six months, a tran- sition plan should be developed within six months of the effective date of this part. Aside from structural changes, all other nec- essary steps to achieve compliance shall be taken within sixty days. One commenter proposes to limit the time allowed for making structural modifications to one year. We note that the basic require- ment is that these changes be made ‘‘as soon as practicable,’’ and that the three-year limit is the maximum period of time. Fur- thermore, the three-year maximum for tran- sition plans is identical to that contained in the regulations for federally assisted recipi- ents. Section 85.43 Program accessibility: New construction and alterations. Overlapping coverage exists with respect to new construction and alterations under sectio ns for federally assisted recipi- ents. Section 85.43 Program accessibility: New construction and alterations. Overlapping coverage exists with respect to new construction and alterations under section 504 and the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151–4157). Section 85.43 provides that those buildings that are constructed or altered by, on behalf of, or for the use of the agency shall be de- signed, constructed, or altered to be readily accessible to and usable by individuals with handicaps in accordance with 41 CFR part 101–19, 101–19.600 to 101–19.607 (GSA regula- tion which incorporates the Uniform Federal Accessibility Standards). This standard was promulgated pursuant to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151–4157). We believe that it is appropriate to adopt the existing Architectural Barriers Act standard for section 504 compliance be- cause new and altered buildings subject to this regulation are also subject to the Archi- tectural Barriers Act and because adoption of the standard will avoid duplicative and possibly inconsistent standards. Existing buildings leased by the agency after the effective date of this regulation tural Barriers Act and because adoption of the standard will avoid duplicative and possibly inconsistent standards. Existing buildings leased by the agency after the effective date of this regulation are not required by the regulation to meet acces- sibility standards simply by virtue of being leased. They are subject, however, to the 532 Dept. of Health and Human Services Pt. 85, Nt. program accessibility standards for existing facilities in § 85.42. To the extent the build- ings are newly constructed or altered, they must also meet the new constructions and alteration requirements of § 85.43. Federal practice under section 504 has al- ways treated newly leased buildings as sub- ject to the existing facility program accessi- bility standard. Unlike the construction of new buildings where architectural barriers can be avoided at little or no cost, the appli- cation of new construction standards to an existing building being leased raises the same prospect of retrofitting buildings as the use of an existing Federal facility, and the agency believes that same program accessi- bility standards should apply to both owned and leased existing buildings. In Rose v. United States Postal Se he use of an existing Federal facility, and the agency believes that same program accessi- bility standards should apply to both owned and leased existing buildings. In Rose v. United States Postal Service, 774 F.2d 1355 (9th Cir. 1985), the Ninth Circuit held that the Architectural Barriers Act re- quires accessibility at the time of lease. The Rose court did not address the question of whether section 504 likewise requires acces- sibility as a condition of lease, and the case was remanded to the District Court for, among other things, consideration of this issue. Two commenters urged that leased buildings be required to be accessible at the time of lease. The agency may provide more specific guidance on section 504 requirements for leased buildings after the litigation is completed. Section 85.51 Communications. Section 85.51 requires the agency to take appropriate steps to ensure effective commu- nication with personnel of other Federal en- tities, applicants, participants, and members of the public. These steps shall include pro- cedures for determining when auxiliary aids are necessary under § 85.1(a)(1) to afford an individual with handicaps an equal oppor- tunity to particip ers of the public. These steps shall include pro- cedures for determining when auxiliary aids are necessary under § 85.1(a)(1) to afford an individual with handicaps an equal oppor- tunity to participate in, and enjoy the bene- fits of, the agency’s program or activity. They shall also include an opportunity for individuals with handicaps to request the auxiliary aids of their choice. This expressed choice shall be given primary consideration by the agency (§ 85.51(a)(1)(i)). The agency shall honor the choice unless it can dem- onstrate that another effective means of communication exists or that use of the means chosen would not be required under § 85.51(d). That paragraph limits the obliga- tions of the agency to ensure effective com- munication in accordance with Davis and the circuit court opinions interpreting it (see supra preamble discussion of § 85.42(c)(2)). Un- less not required by § 85.51(d), the agency shall provide auxiliary aids at no cost to the individual with handicaps. One commenter proposed that the choice of auxiliary aid made by the individual with handicaps should govern unless it would con- stitute an undue hardship on the agency. We believe that the language . One commenter proposed that the choice of auxiliary aid made by the individual with handicaps should govern unless it would con- stitute an undue hardship on the agency. We believe that the language set out above is adequate to ensure consideration of an indi- vidual’s preference. Another commenter proposed that the reg- ulation require all films and videotapes pro- duced by the agency to be captioned for the hearing-impaired. The Department intends to examine all appropriate methods of ensur- ing effective communication. The same commenter applauded HHS for the inclusion of the language requiring HHS to inform individuals with handicaps of their section 504 rights. The discussion of § 85.42(a), Program acces- sibility, Existing facilities, regarding the de- termination of what constitutes undue finan- cial and administrative burdens, also applies to § 85.51(d) and should be referred to for a complete understanding of the agency’s obli- gation to comply with § 85.51. In some circumstances, a notepad and written materials may be sufficient to per- mit effective communication with a hearing- impaired person. In many circumstances, however, they may not be, particularly when the inf ances, a notepad and written materials may be sufficient to per- mit effective communication with a hearing- impaired person. In many circumstances, however, they may not be, particularly when the information being communicated is com- plex or exchanged for a lengthy period of time (e.g. a meeting) or where the hearing- impaired applicant or participant is not skilled in spoken or written language. In these cases, a sign language interpreter may be appropriate. One commenter proposed changing the lan- guage to state that notepads rarely suffice for communication with the hearing-im- paired. Considering that a significant num- ber of the hearing-impaired may not be skilled in sign language, we believe that the language used is appropriate. For vision-impaired persons, effective com- munication might be achieved by several means, including readers and audio record- ings. In general, the agency intends to in- form the public of (1) the communications services it offers to afford individuals with handicaps an equal opportunity to partici- pate in or benefit from its programs and ac- tivities, (2) the opportunity to request a par- ticular mode of communication, and (3) the agency’s pref ls with handicaps an equal opportunity to partici- pate in or benefit from its programs and ac- tivities, (2) the opportunity to request a par- ticular mode of communication, and (3) the agency’s preferences regarding auxiliary aids if it can demonstrate that several different modes are effective. The agency shall ensure effective commu- nication with vision-impaired and hearing- impaired persons involved in proceedings conducted by the agency. Auxiliary aids must be afforded where necessary to ensure effective communication at the proceedings. If sign language interpreters are necessary, the agency may require that it be given rea- sonable notice prior to the proceedings of the need for an interpreter. Moreover, the agen- cy need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature (§ 85.51(a)(1)(ii)). For example, the agency need not provide eye glasses or hearing aids to applicants or participants in its programs. 533 Pt. 85, Nt. 45 CFR Subtitle A (10–1–24 Edition) Similarly, the regulation does not require the agency to provide wheelchairs to persons with mobility impairments. One commenter proposed that the items Pt. 85, Nt. 45 CFR Subtitle A (10–1–24 Edition) Similarly, the regulation does not require the agency to provide wheelchairs to persons with mobility impairments. One commenter proposed that the items which agencies are not required to provide and the circumstances involved be described in more detail. We believe that the descrip- tion given is sufficient, because the interpre- tation of this provision will be made on a case-by-case basis. Paragraph (b) requires the agency to en- sure that individuals with handicaps can ob- tain information concerning accessible serv- ices, activities, and facilities. Paragraph (c) requires the agency to pro- vide signage at inaccessible facilities that di- rect users to locations with information about accessible facilities. One commenter suggested specifically mentioning the international symbol for deafness, and placing such signs at the main entrance of buildings equipped to service the hearing-impaired. We believe that the lan- guage contained in § 85.51 (b) and (c) requires the agency to ensure that individuals with handicaps, including those with impaired hearing, can obtain information regarding accessibility, and that this requirement is s § 85.51 (b) and (c) requires the agency to ensure that individuals with handicaps, including those with impaired hearing, can obtain information regarding accessibility, and that this requirement is sufficient to afford flexibility on the part of the agency regarding use of appropriate sign- age. One commenter proposed adding the words ‘‘in the most integrated setting appropriate’’ to the language in § 85.51(d). This language already appears elsewhere in the regulation, e.g. in § 85.42(b)(2), and it is the Department’s intention to act in accordance with that pro- vision. Section 85.61 Compliance procedures. Paragraph (a) specifies that paragraphs (b) and (d) through (l) of this section establish the procedures for processing complaints other than employment complaints. Para- graph (c) provides that the agency will proc- ess employment complaints according to procedures established in existing regula- tions of the EEOC (29 CFR part 1613) pursu- ant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791). Paragraph (b) designates the official re- sponsible for coordinating implementation of § 85.61. The NPRM stated that responsibility for the implementation and operation of Act of 1973 (29 U.S.C. 791). Paragraph (b) designates the official re- sponsible for coordinating implementation of § 85.61. The NPRM stated that responsibility for the implementation and operation of this ‘‘part’’ shall be vested in the OCR Director/ Special Assistant. The final rule has been re- vised by replacing the word ‘‘part’’ with the word ‘‘section’’ to clarify the responsibility for coordinating implementation of § 85.61. The agency is required to accept and inves- tigate all complete complaints (§ 85.61(d)). Two commenters suggested that a complain- ant have an opportunity to remedy an in- complete complaint. Current administrative procedures provide for this practice and it need not be included in the text of the regu- lation. If the agency determines that it does not have jurisdiction over a complaint, it shall promptly notify the complainant and make reasonable efforts to refer the complaint to the appropriate entity of the Federal Gov- ernment (§ 85.61(e)). One commenter pointed out that where a reference to another entity of the Federal government is required, the obligation to refer should be absolute, not limited to reasonable efforts. The language ‘‘shall make re pointed out that where a reference to another entity of the Federal government is required, the obligation to refer should be absolute, not limited to reasonable efforts. The language ‘‘shall make reasonable efforts to refer’’ is not intended to minimize the Department’s obligation. Paragraph (f) requires the agency to notify the Architectural and Transportation Bar- riers Compliance Board (ATBCB) upon re- ceipt of a complaint alleging that a building or facility subject to the Architectural Bar- riers Act was designed, constructed, or al- tered in a manner that does not provide ready access and use by individuals with handicaps. Paragraph (g) requires the agency to pro- vide to the complainant, in writing, findings of fact and conclusions of law, the relief granted if noncompliance is found, and no- tice of the right to appeal (§ 85.61(g)). One ap- peal within the agency shall be provided (§ 85.61(i)). The appeal will not be heard by the same person who made the initial deter- mination of compliance or noncompliance. Paragraph (1) permits the agency to dele- gate its authority for investigating com- plaints to other Federal agencies. However, the statutory obligation of the agenc on of compliance or noncompliance. Paragraph (1) permits the agency to dele- gate its authority for investigating com- plaints to other Federal agencies. However, the statutory obligation of the agency to make a final determination of compliance or noncompliance may not be delegated. Commenters have suggested the following: Notifying complainants whenever their complaints are referred to another agency. Current administrative procedures provide for this practice and it need not be included in the text of the regulation. Describing the basic parameters for sub- mitting or obtaining evidence used to decide appeals. Since the grounds for appeal may be extremely varied, it would not be practicable to set out parameters for every appeal. Including a statement as to complainants’ rights to judicial review. These rights are statutory and beyond the scope of this regu- lation. Obtaining the expertise of ATBCB in ap- propriate cases. A provision regarding notifi- cation of ATBCB is already included in the regulation. Including a statement that all other regu- lations, forms and directives issued by HHS are superseded by the nondiscrimination re- quirements of this part. The Department views uded in the regulation. Including a statement that all other regu- lations, forms and directives issued by HHS are superseded by the nondiscrimination re- quirements of this part. The Department views any other issuances falling short of the requirements of this regulation as insuffi- cient to ensure compliance and therefore such a statement is unnecessary. 534 Dept. of Health and Human Services § 86.1 Provisions for attorneys fees and com- pensation to the prevailing party. Such pro- visions are statutory and beyond the scope of this regulation. Section 85.62 Coordination and compliance responsibilities. Section 85.62 sets out the respective re- sponsibilities of the components of HHS and of the Director, OCR/Special Assistant in the implementation of section 504 to programs and activities conducted by HHS. Paragraph (c) specifies the respective roles of OCR and of the HHS component in cases in which noncompliance is found. In the event that OCR and the HHS compo- nent cannot agree on a resolution of any par- ticular matter, such matter will be sub- mitted to the Secretary for resolution. PART 86—NONDISCRIMINATION ON THE BASIS OF SEX IN EDU- CATION PROGRAMS OR ACTIVI- TIES RECEIVI a resolution of any par- ticular matter, such matter will be sub- mitted to the Secretary for resolution. PART 86—NONDISCRIMINATION ON THE BASIS OF SEX IN EDU- CATION PROGRAMS OR ACTIVI- TIES RECEIVING FEDERAL FINAN- CIAL ASSISTANCE Subpart A—Introduction Sec. 86.1 Purpose and effective date. 86.2 Definitions. 86.3 Remedial and affirmative action and self-evaluation. 86.4 Assurance required. 86.5 Transfers of property. 86.6 Effect of other requirements. 86.7 Effect of employment opportunities. 86.8 Designation of responsible employee and adoption of grievance procedures. 86.9 Dissemination of policy. Subpart B—Coverage 86.11 Application. 86.12 Educational institutions controlled by religious organizations. 86.13 Military and merchant marine edu- cational institutions. 86.14 Membership practices of certain orga- nizations. 86.15 Admissions. 86.16 Educational institutions eligible to submit transition plans. 86.17 Transition plans. 86.18 Amendments to conform to statutory exemptions. 86.19–86.20 [Reserved] Subpart C—Discrimination on the Basis of Sex In Admission and Recruitment Pro- hibited 86.21 Admission. 86.22 Preference in admission. 86.23 Recruitment. 86.24–86.30 [Reserved] Su .19–86.20 [Reserved] Subpart C—Discrimination on the Basis of Sex In Admission and Recruitment Pro- hibited 86.21 Admission. 86.22 Preference in admission. 86.23 Recruitment. 86.24–86.30 [Reserved] Subpart D—Discrimination on the Basis of Sex in Education Programs or Activities Prohibited 86.31 Education programs or activities. 86.32 Housing. 86.33 Comparable facilities. 86.34 Access to course offerings. 86.35 Access to schools operated by L.E.A.s. 86.36 Counseling and use of appraisal and counseling materials. 86.37 Financial assistance. 86.38 Employment assistance to students. 86.39 Health and insurance benefits and services. 86.40 Marital or parental status. 86.41 Athletics. 86.42 Textbooks and curricular material. 86.43–86.50 [Reserved] Subpart E—Discrimination on the Basis of Sex In Employment in Education Pro- grams or Activities Prohibited 86.51 Employment. 86.52 Employment criteria. 86.53 Recruitment. 86.54 Compensation. 86.55 Job classification and structure. 86.56 Fringe benefits. 86.57 Marital or parental status. 86.58 Effect of State or local law or other requirements. 86.59 Advertising. 86.60 Pre-employment inquiries. 86.61 Sex as bona-fide occupational quali- fication fits. 86.57 Marital or parental status. 86.58 Effect of State or local law or other requirements. 86.59 Advertising. 86.60 Pre-employment inquiries. 86.61 Sex as bona-fide occupational quali- fication. 86.62–86.70 [Reserved] Subpart F—Procedures [Interim] 86.71 Enforcement procedures. SUBJECT INDEX TO TITLE IX PREAMBLE AND REGULATION APPENDIX A TO PART 86—GUIDELINES FOR ELIMINATING DISCRIMINATION AND DENIAL OF SERVICES ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN, SEX, AND HAND- ICAP IN VOCATIONAL EDUCATION PROGRAMS [NOTE] AUTHORITY: 20 U.S.C. 1681 through 1688; Pub. L. 100–259, 102 Stat. 28 (Mar. 22, 1988). SOURCE: 40 FR 24137, June 4, 1975, unless otherwise noted. Subpart A—Introduction § 86.1 Purpose and effective date. The purpose of this part is to effec- tuate title IX of the Education Amend- ments of 1972, as amended by Pub. L. 93–568, 88 Stat. 1855 (except sections 904 535 § 86.2 45 CFR Subtitle A (10–1–24 Edition) and 906 of those Amendments) which is designed to eliminate (with certain ex- ceptions) discrimination on the basis of sex in any education program or activ- ity receiving Federal financial assist- ance, whether or not such program or activity is offered or spons th certain ex- ceptions) discrimination on the basis of sex in any education program or activ- ity receiving Federal financial assist- ance, whether or not such program or activity is offered or sponsored by an educational institution as defined in this part. This part is also intended to effectuate section 844 of the Education Amendments of 1974, Pub. L. 93–380, 88 Stat. 484. The effective date of this part shall be July 21, 1975. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682, as amended by Pub. L. 93–568, 88 Stat. 1855, and sec. 844, Education Amendments of 1974, 88 Stat. 484, Pub. L. 93–380) § 86.2 Definitions. As used in this part, the term— (a) Title IX means title IX of the Edu- cation Amendments of 1972, Pub. L. 92– 318, as amended by section 3 of Pub. L. 93–568, 88 Stat. 1855, except sections 904 and 906 thereof; 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688. (b) Department means the Department of Health and Human Services. (c) Secretary means the Secretary of Health and Human Services. (d) Director means the Director of the Office for Civil Rights of the Depart- ment. (e) Reviewing Authority means that component of the Departme etary means the Secretary of Health and Human Services. (d) Director means the Director of the Office for Civil Rights of the Depart- ment. (e) Reviewing Authority means that component of the Department dele- gated authority by the Secretary to ap- point, and to review the decisions of, administrative law judges in cases aris- ing under this part. (f) Administrative law judge means a person appointed by the reviewing au- thority to preside over a hearing held under this part. (g) Federal financial assistance means any of the following, when authorized or extended under a law administered by the Department: (1) A grant or loan of Federal finan- cial assistance, including funds made available for: (i) The acquisition, construction, ren- ovation, restoration, or repair of a building or facility or any portion thereof; and (ii) Scholarships, loans, grants, wages or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity. (2) A grant of Federal real or per- sonal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such propert ch students for payment to that entity. (2) A grant of Federal real or per- sonal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such property, if the Federal share of the fair market value of the property is not, upon such sale or transfer, prop- erly accounted for to the Federal Gov- ernment. (3) Provision of the services of Fed- eral personnel. (4) Sale or lease of Federal property or any interest therein at nominal con- sideration, or at consideration reduced for the purpose of assisting the recipi- ent or in recognition of public interest to be served thereby, or permission to use Federal property or any interest therein without consideration. (5) Any other contract, agreement, or arrangement which has as one of its purposes the provision of assistance to any education program or activity, ex- cept a contract of insurance or guar- anty. (h) Program or activity and program means all of the operations of— (1)(i) A department, agency, special purpose district, or other instrumen- tality of a State or of a local govern- ment; or (ii) The entity of such a State or local government that distributes Fed- eral financial assist , agency, special purpose district, or other instrumen- tality of a State or of a local govern- ment; or (ii) The entity of such a State or local government that distributes Fed- eral financial assistance and each such department 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; (2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or (ii) A local educational agency (as de- fined in 20 U.S.C. 7801), system of voca- tional education, or other school sys- tem; (3)(i) An entire corporation, partner- ship, or other private organization, or an entire sole proprietorship— (A) If assistance is extended to such corporation, partnership, private orga- nization, or sole proprietorship as a whole; or (B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or 536 Dept. of Health and Human Services § 86.2 (ii) The entire plant or other com- parable, geographically separate facil- ity to which Federal financial assist- ance is extended, in the case of any other Dept. of Health and Human Services § 86.2 (ii) The entire plant or other com- parable, geographically separate facil- ity to which Federal financial assist- ance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) Any other entity which is estab- lished by two or more of the entities described in paragraph (h)(1), (2), or (3) of this section; any part of which is ex- tended Federal financial assistance. (i) Recipient means any State or po- litical subdivision thereof, or any in- strumentality of a State or political subdivision thereof, any public or pri- vate agency, institution, or organiza- tion, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an edu- cation program or activity which re- ceives such assistance, including any subunit, successor, assignee, or trans- feree thereof. (j) Applicant means one who submits an application, request, or plan re- quired to be approved by a Department official, or by a recipient, as a condi- tion to becoming a recipient. (k) Educational institution means a local educational agency (L.E.A.) request, or plan re- quired to be approved by a Department official, or by a recipient, as a condi- tion to becoming a recipient. (k) Educational institution means a local educational agency (L.E.A.) as defined by section 801(f) of the Elemen- tary and Secondary Education Act of 1965 (20 U.S.C. 881), a preschool, a pri- vate elementary or secondary school, or an applicant or recipient of the type defined by paragraph (l), (m), (n), or (o) of this section. (l) Institution of graduate higher edu- cation means an institution which: (1) Offers academic study beyond the bachelor of arts or bachelor of science degree, whether or not leading to a cer- tificate of any higher degree in the lib- eral arts and sciences; or (2) Awards any degree in a profes- sional field beyond the first profes- sional degree (regardless of whether the first professional degree in such field is awarded by an institution of undergraduate higher education or pro- fessional education); or (3) Awards no degree and offers no further academic study, but operates ordinarily for the purpose of facili- tating research by persons who have received the highest graduate degree in any field of study. (m) Institution of und ers no further academic study, but operates ordinarily for the purpose of facili- tating research by persons who have received the highest graduate degree in any field of study. (m) Institution of undergraduate higher education means: (1) An institution offering at least two but less than four years of college level study beyond the high school level, leading to a diploma or an asso- ciate degree, or wholly or principally creditable toward a baccalaureate de- gree; or (2) An institution offering academic study leading to a baccalaureate de- gree; or (3) An agency or body which certifies credentials or offers degrees, but which may or may not offer academic study. (n) Institution of professional education means an institution (except any insti- tution of undergraduate higher edu- cation) which offers a program of aca- demic study that leads to a first profes- sional degree in a field for which there is a national specialized accrediting agency recognized by the Secretary of Education. (o) Institution of vocational education means a school or institution (except an institution of professional or grad- uate or undergraduate higher edu- cation) which has as its primary pur- pose prepar o) Institution of vocational education means a school or institution (except an institution of professional or grad- uate or undergraduate higher edu- cation) which has as its primary pur- pose preparation of students to pursue a technical, skilled, or semiskilled oc- cupation or trade, or to pursue study in a technical field, whether or not the school or institution offers certificates, diplomas, or degrees and whether or not it offers fulltime study. (p) Administratively separate unit means a school, department or college of an educational institution (other than a local educational agency) ad- mission to which is independent of ad- mission to any other component of such institution. (q) Admission means selection for part-time, full-time, special, associate, transfer, exchange, or any other enroll- ment, membership, or matriculation in or at an education program or activity operated by a recipient. (r) Student means a person who has gained admission. (s) Transition plan means a plan sub- ject to the approval of the United States Commissioner of Education pur- suant to section 901(a)(2) of the Edu- cation Amendments of 1972, under which an educational institution oper- ates in mak sub- ject to the approval of the United States Commissioner of Education pur- suant to section 901(a)(2) of the Edu- cation Amendments of 1972, under which an educational institution oper- ates in making the transition from being an educational institution which 537 § 86.3 45 CFR Subtitle A (10–1–24 Edition) admits only students of one sex to being one which admits students of both sexes without discrimination. (Secs. 901, 902, 908, Education Amendments of 1972, 20 U.S.C. 1681, 1682, 1687) [40 FR 24137, June 4, 1975, as amended at 70 FR 24320, May 9, 2005; 85 FR 37243, June 19, 2020] § 86.3 Remedial and affirmative action and self-evaluation. (a) Remedial action. If the Director finds that a recipient has discriminated against persons on the basis of sex in an education program or activity, such recipient shall take such remedial ac- tion as the Director deems necessary to overcome the effects of such discrimi- nation. (b) Affirmative action. In the absence of a finding of discrimination on the basis of sex in an education program or activity, a recipient may take affirma- tive action to overcome the effects of conditions which resulted in limited participation therein by persons o on on the basis of sex in an education program or activity, a recipient may take affirma- tive action to overcome the effects of conditions which resulted in limited participation therein by persons of a particular sex. Nothing herein shall be interpreted to alter any affirmative ac- tion obligations which a recipient may have under Executive Order 11246. (c) Self-evaluation. Each recipient education institution shall, within one year of the effective date of this part: (1) Evaluate, in terms of the require- ments of this part, its current policies and practices and the effects thereof concerning admission of students, treatment of students, and employ- ment of both academic and non-aca- demic personnel working in connection with the recipient’s education program or activity; (2) Modify any of these policies and practices which do not or may not meet the requirements of this part; and (3) Take appropriate remedial steps to eliminate the effects of any dis- crimination which resulted or may have resulted from adherence to these policies and practices. (d) Availability of self-evaluation and related materials. Recipients shall main- tain on file for at least three years fol- lowing c may have resulted from adherence to these policies and practices. (d) Availability of self-evaluation and related materials. Recipients shall main- tain on file for at least three years fol- lowing completion of the evaluation re- quired under paragraph (c) of this sec- tion, and shall provide to the Director upon request, a description of any modifications made pursuant to para- graph (c) (2) of this section and of any remedial steps taken pursuant to para- graph (c) (3) of this section. (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] § 86.4 Assurance required. (a) General. Every application for Federal financial assistance for any education program or activity shall as condition of its approval contain or be accompanied by an assurance from the applicant or recipient, satisfactory to the Director, that the education pro- gram or activity operated by the appli- cant or recipient and to which this part applies will be operated in compliance with this part. An assurance of compli- ance with this part shall not be satis- factory to the Director if the applicant or recipient to whom such a ch this part applies will be operated in compliance with this part. An assurance of compli- ance with this part shall not be satis- factory to the Director if the applicant or recipient to whom such assurance applies fails to commit itself to take whatever remedial action is necessary in accordance with § 86.3(a) to elimi- nate existing discrimination on the basis of sex or to eliminate the effects of past discrimination whether occur- ring prior or subsequent to the submis- sion to the Director of such assurance. (b) Duration of obligation. (1) In the case of Federal financial assistance ex- tended to provide real property or structures thereon, such assurance shall obligate the recipient or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used to provide an education program or ac- tivity. (2) In the case of Federal financial as- sistance extended to provide personal property, such assurance shall obligate the recipient for the period during which it retains ownership or posses- sion of the property. (3) In all other cases such assurance shall obligate the recipient for the pe- riod during which Federal financi pient for the period during which it retains ownership or posses- sion of the property. (3) In all other cases such assurance shall obligate the recipient for the pe- riod during which Federal financial as- sistance is extended. (c) Form. The Director will specify the form of the assurances required by paragraph (a) of this section and the extent to which such assurances will be 538 Dept. of Health and Human Services § 86.9 required of the applicant’s or recipi- ent’s subgrantees, contractors, sub- contractors, transferees, or successors in interest. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) ineligible to participate or limit the eligibility or participation of any ap- plicant or student, on the basis of sex, in any education program or activity operated by a recipient and which re- ceives Federal financial assistance. [40 FR 24137, June 4, 1975, as amended at 70 FR 24321, May 9, 2005] (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.5 Transfers of property. If a recipient sells or otherwise trans- fers property financed in whole or in part with Federal financial assistance to a transferee whi 373, 374; 20 U.S.C. 1681, 1682) § 86.5 Transfers of property. If a recipient sells or otherwise trans- fers property financed in whole or in part with Federal financial assistance to a transferee which operates any edu- cation program or activity, and the Federal share of the fair market value of the property is not upon such sale or transfer properly accounted for to the Federal Government both the trans- feror and the transferee shall be deemed to be recipients, subject to the provisions of subpart B of this part. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.6 Effect of other requirements. (a) Effect of other Federal provisions. The obligations imposed by this part are independent of, and do not alter, obligations not to discriminate on the basis of sex imposed by Executive Order 11246, as amended; sections 799A and 845 of the Public Health Service Act (42 U.S.C. 295h–9 and 298b–2); Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act (29 U.S.C. 206 and 206(d)); and any other Act of Congress or Federal regulation. (Secs. 901, 902, 905, Education Amendments of 1972, 86 Stat. 373, 374, 375; 20 U.S.C. 2000e et seq.); the Equal Pay Act (29 U.S.C. 206 and 206(d)); and any other Act of Congress or Federal regulation. (Secs. 901, 902, 905, Education Amendments of 1972, 86 Stat. 373, 374, 375; 20 U.S.C. 1681, 1682, 1685) (b) Effect of State or local law or other requirements. The obligation to comply with this part is not obviated or allevi- ated by any State or local law or other requirement which would render any applicant or student ineligible, or limit the eligibility of any applicant or stu- dent, on the basis of sex, to practice any occupation or profession. (c) Effect of rules or regulations of pri- vate organizations. The obligation to comply with this part is not obviated or alleviated by any rule or regulation of any organization, club, athletic or other league, or association which would render any applicant or student [40 FR 24137, June 4, 1975, as amended at 70 FR 24321, May 9, 2005] § 86.7 Effect of employment opportuni- ties. The obligation to comply with this part is not obviated or alleviated be- cause employment opportunities in any occupation or profession are or may be more limited for members of one sex than for members of the other sex. (Secs. 901, 902, Educatio obviated or alleviated be- cause employment opportunities in any occupation or profession are or may be more limited for members of one sex than for members of the other sex. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.8 Designation of responsible em- ployee and adoption of grievance procedures. (a) Designation of responsible employee. Each recipient shall designate at least one employee to coordinate its efforts to comply with and carry out its re- sponsibilities under this part, including any investigation of any complaint communicated to such recipient alleg- ing its noncompliance with this part or alleging any actions which would be prohibited by this part. The recipient shall notify all its students and em- ployees of the name, office address and telephone number of the employee or employees appointed pursuant to this paragraph. (b) Complaint procedure of recipient. A recipient shall adopt and publish griev- ance procedures providing for prompt and equitable resolution of student and employee complaints alleging any ac- tion which would be prohibited by this part. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; g for prompt and equitable resolution of student and employee complaints alleging any ac- tion which would be prohibited by this part. (Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) § 86.9 Dissemination of policy. (a) Notification of policy. (1) Each re- cipient shall implement specific and continuing steps to notify applicants for admission and employment, stu- dents and parents of elementary and secondary school students, employees, 539 § 86.11 45 CFR Subtitle A (10–1–24 Edition) sources of referral of applicants for ad- mission and employment, and all unions or professional organizations holding collective bargaining or profes- sional agreements with the recipient, that it does not discriminate on the basis of sex in the educational pro- grams or activities which it operates, and that is required by title IX and this part not to discriminate in such a man- ner. Such notification shall contain such information, and be made in such manner, as the Director finds nec- essary to apprise such persons of the protections against discrimination as- sured them by title IX and this part, but shall state at least that the re- quirement not to discrim he Director finds nec- essary to apprise such persons of the protections against discrimination as- sured them by title IX and this part, but shall state at least that the re- quirement not to discriminate in edu- cation programs and activities extends to employment therein, and to admis- sion thereto unless Subpart C does not apply to the recipient, and that inquir- ies concerning the application of title IX and this part to such recipient may be referred to the employee designated pursuant to § 86.8, or to the Director. (2) Each recipient shall make the ini- tial notification required by paragraph (a) (1) of this section within 90 days of the effective date of this part or of the date this part first applies to such re- cipient, whichever comes later, which notification shall include publication in: (i) Local newspapers; (ii) Newspapers and magazines oper- ated by such recipient or by student, alumnae, or alumni groups for or in connection with such recipient; and (iii) Memoranda or other written communications distributed to every student and employee of such recipi- ent. (b) Publications. (1) Each recipient shall prominently include a statement of the policy described in paragr other written communications distributed to every student and employee of such recipi- ent. (b) Publications. (1) Each recipient shall prominently include a statement of the policy described in paragraph (a) of this section in each announcement, bulletin, catalog, or application form which it makes available to any person of a type, described in paragraph (a) of this section, or which is otherwise used in connection with the recruitment of students or employees. (2) A recipient shall not use or dis- tribute a publication of the type de- scribed in this paragraph which sug- gests, by text or illustration, that such recipient treats applicants, students, or employees differently on the basis of sex except as such treatment is per- mitted by this part. (c) Distribution. Each recipient shall distribute without discrimination on the basis of sex each publication de- scribed in paragraph (b) of this section, and shall apprise each of its admission and employment recruitment rep- resentatives 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. 3