45 CFR Parts 160 & 164 (CFR Annual Edition) l thereafter be extended under such law or laws to the applicant or recipient determined by such deci- sion to be in default in its performance of an assurance given by it pursuant to this regulation, or to have otherwise failed to comply with this regulation unless and until it corrects its non- compliance and satisfies the respon- sible Department official that it will fully comply with this regulation. (g) Post-termination proceedings. (1) An applicant or recipient adversely af- fected by an order issued under para- graph (f) of this section shall be re- stored to full eligibility to receive Fed- eral financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this part and pro- vides reasonable assurance that it will fully comply with this part. An ele- mentary or secondary school or school system which is unable to file an assur- ance of compliance with § 80.3 shall be restored to full eligibility to receive Federal financial assistance, if it files a court order or a plan for desegrega- tion which meets the requirements of § 80.4(c), and provides reasonable assur- ance that it will comply with th receive Federal financial assistance, if it files a court order or a plan for desegrega- tion which meets the requirements of § 80.4(c), and provides reasonable assur- ance that it will comply with the court order or plan. (2) Any applicant or recipient ad- versely affected by an order entered pursuant to paragraph (f) of this sec- tion may at any time request the re- sponsible Department official to re- store fully its eligibility to receive Federal financial assistance. Any such request shall be supported by informa- tion showing that the applicant or re- cipient has met the requirements of paragraph (g)(1) of this section. If the responsible Department official deter- mines that those requirements have been satisfied, he shall restore such eli- gibility. (3) If the responsible Department of- ficial denies any such request, the ap- plicant or recipient may submit a re- quest for a hearing in writing, speci- fying why it believes such official to have been in error. It shall thereupon 432 Dept. of Health and Human Services § 80.13 be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible Department official. The 432 Dept. of Health and Human Services § 80.13 be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible Department official. The applicant or recipient will be restored to such eligibility if it proves at such hearing that it satisfied the require- ments of paragraph (g)(1) of this sec- tion. While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall re- main in effect. (Sec. 602, Civil Rights Act of 1964, 78 Stat. 252 (42 U.S.C. 2000d–1)) [29 FR 16298, Dec. 4, 1964, as amended at 32 FR 14555, Oct. 19, 1967; 38 FR 17981, 17982, July 5, 1973] § 80.11 Judicial review. Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act. (Sec. 603, 78 Stat. 253, (42 U.S.C. 2000d–2)) [29 FR 16298, Dec. 4, 1964, as amended at 32 FR 14556, Oct. 19, 1967] § 80.12 Effect on other regulations; forms and instructions. (a) Effect on other regulations. All reg- ulations, orders, or like directions heretofore issued by any officer of the Department which impose require- ments designed to prohibit any d d instructions. (a) Effect on other regulations. All reg- ulations, orders, or like directions heretofore issued by any officer of the Department which impose require- ments designed to prohibit any dis- crimination against individuals on the ground of race, color, or national ori- gin under any program to which this regulation applies, and which authorize the suspension or termination of or re- fusal to grant or to continue Federal fi- nancial assistance to any applicant for or recipient of assistance for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this regulation, except that nothing in this regulation shall be deemed to re- lieve any person of any obligation as- sumed or imposed under any such su- perseded regulation, order, instruction, or like direction prior to the effective date of this regulation. Nothing in this regulation, however, shall be deemed to supersede any of the following (includ- ing future amendments thereof): (1) The ‘‘Standards for a Merit System of Personnel Administration,’’ issued jointly by the Secretaries of Defense, of Health and Human Services, and of Labor, 45 CFR part 70; (2) amendments thereof): (1) The ‘‘Standards for a Merit System of Personnel Administration,’’ issued jointly by the Secretaries of Defense, of Health and Human Services, and of Labor, 45 CFR part 70; (2) Executive Order 11063 and regulations issued thereunder, or any other regulations or instructions, insofar as such Order, regulations, or instructions prohibit discrimination on the ground of race, color, or national origin in any pro- gram or situation to which this regula- tion is inapplicable, or prohibit dis- crimination on any other ground; or (3) requirements for Emergency School Assistance as published in 35 FR 13442 and codified as 45 CFR part 181. (b) Forms and instructions. The re- sponsible Department official shall issue and promptly make available to interested persons forms and detailed instructions and procedures for effec- tuating this part. (c) Supervision and coordination. The responsible Department official may from time to time assign to officials of the Department, or to officials of other departments or agencies of the Govern- ment with the consent of such depart- ments or agencies, responsibilities in connection with the effectuation of the purposes of Title VI to officials of other departments or agencies of the Govern- ment with the consent of such depart- ments or agencies, responsibilities in connection with the effectuation of the purposes of Title VI of the Act and this regulation (other than responsibility for review as provided in § 80.10(e)), in- cluding the achievements of effective coordination and maximum uniformity within the Department and within the Executive Branch of the Government in the application of Title VI and this regulation to similar programs and in similar situations. Any action taken, determination made, or requirement imposed by an official of another De- partment or Agency acting pursuant to an assignment of responsibility under this subsection shall have the same ef- fect as though such action had been taken by the responsible official of this Department. (Sec. 602, Civil Rights Act of 1964, 78 Stat. 252 (42 U.S.C. 2000d–10)) [29 FR 16298, Dec. 4, 1964, as amended at 32 FR 14555, Oct. 19, 1967; 38 FR 17981, 17982, July 5, 1973] § 80.13 Definitions. As used in this part— (a) The term Department means the Department of Health and Human Services, and includes each of its oper- ating agencies and other organiza 82, July 5, 1973] § 80.13 Definitions. As used in this part— (a) The term Department means the Department of Health and Human Services, and includes each of its oper- ating agencies and other organiza- tional units. 433 § 80.13 45 CFR Subtitle A (10–1–24 Edition) (b) The term Secretary means the Sec- retary of Health and Human Services. (c) The term responsible Department official means the Secretary or, to the extent of any delegation by the Sec- retary of authority to act in his stead under any one or more provisions of this part, any person or persons to whom the Secretary has heretofore del- egated, or to whom the Secretary may hereafter delegate such authority. (d) The term reviewing authority means the Secretary, or any person or persons (including a board or other body specially created for that purpose and also including the responsible De- partment official) acting pursuant to authority delegated by the Secretary to carry out responsibilities under § 80.10 (a) through (d). (e) The term United States means the States of the United States, the Dis- trict of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and the territories and p The term United States means the States of the United States, the Dis- trict of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and the territories and possessions of the United States, and the term State means any one of the foregoing. (f) The term Federal financial assist- ance includes (1) grants and loans of Federal funds, (2) the grant or donation of Federal property and interests in property, (3) the detail of Federal per- sonnel, (4) the sale and lease of, and the permission to use (on other than a cas- ual or transient basis), Federal prop- erty or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of as- sisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and (5) any Federal agreement, arrange- ment, or other contract which has as one of its purposes the provision of as- sistance. (g) The term program or activity and the term program mean all of the oper- ations of— (1)(i) A department, agency, special purpose district, or other instrumen- tality of a State or of a local govern (g) The term program or activity and the term program mean all of the oper- ations 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 State or local government that distributes Federal fi- nancial assistance and each such de- partment or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; (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 (ii) The entire plant or other com- parable, geographically separate facil- ity to which Federal f e business of providing education, health care, housing, social services, or parks and recreation; or (ii) The entire plant or other com- parable, geographically separate facil- ity to which Federal financial assist- ance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) Any other entity which is estab- lished by two or more of the entities described in paragraph (g)(1), (g)(2), or (g)(3) of this section; any part of which is extended Federal financial assist- ance. (h) The term facility includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction, ex- pansion, renovation, remodeling, alter- ation or acquisition of facilities. (i) The term recipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organi- zation, or other entity, or any indi- vidual, in any State, to whom Federal financial assistance is extended, di- rectly or through another recipient, in- cluding any successor, assign, or trans- feree tion, or other entity, or any indi- vidual, in any State, to whom Federal financial assistance is extended, di- rectly or through another recipient, in- cluding any successor, assign, or trans- feree thereof, but such term does not include any ultimate beneficiary. (j) The term primary recipient means any recipient which is authorized or re- quired to extend Federal financial as- sistance to another recipient. (k) The term applicant means one who submits an application, request, or 434 Dept. of Health and Human Services Pt. 80, App. A plan required to be approved by a De- partment official, or by a primary re- cipient, as a condition to eligibility for Federal financial assistance, and the term application means such an appli- cation, request, or plan. (Secs. 602, 606, Civil Rights Act of 1964, (42 U.S.C. 2000d–1, 2000d–4a)) [29 FR 16298, Dec. 4, 1964; 29 FR 16988, Dec. 11, 1964, as amended at 32 FR 14555, Oct. 19, 1967; 38 FR 17982, July 5, 1973; 70 FR 24318, May 9, 2005] APPENDIX A TO PART 80—FEDERAL FI- TO WHICH NANCIAL ASSISTANCE THESE REGULATIONS APPLY Part 1. Assistance other than Continuing Assistance to States 1. Loans for acquisition of equipment for academic subjects, and O PART 80—FEDERAL FI- TO WHICH NANCIAL ASSISTANCE THESE REGULATIONS APPLY Part 1. Assistance other than Continuing Assistance to States 1. Loans for acquisition of equipment for academic subjects, and for minor remodeling (20 U.S.C. 445). 2. Construction of facilities for institutions of higher education (20 U.S.C. 701–758). 3. School Construction in federally-af- fected and in major disaster areas (20 U.S.C. 631–647). 4. Construction of educational broadcast facilities (47 U.S.C. 390–399). 5. Loan service of captioned films and edu- cational media; research on, and production and distribution of, educational media for the handicapped, and training of persons in the use of such media for the handicapped (20 U.S.C. 1452). 6. Demonstration residential vocational education schools (20 U.S.C. 1321). 7. Research and related activities in edu- cation of handicapped children (20 U.S.C. 1441). 8. Educational research, dissemination and demonstration projects; research training; and construction under the Cooperation Re- search Act (20 U.S.C. 331–332(b)). 16. Recruitment, enrollment, training and assignment of Teacher Corps personnel (20 U.S.C. 1101–1107a). 17. Operation and maintenance of n under the Cooperation Re- search Act (20 U.S.C. 331–332(b)). 16. Recruitment, enrollment, training and assignment of Teacher Corps personnel (20 U.S.C. 1101–1107a). 17. Operation and maintenance of schools in Federally-affected and in major disaster areas (20 U.S.C. 236–241; 241–1; 242–244). 18. Grants or contracts for the operation of training institutes for elementary or sec- ondary school personnel to deal with special educational problems occasioned by desegre- gation (42 U.S.C. 2000c–3). 19. Grants for in-service training of teach- ers and other schools personnel and employ- ment of specialists in desegregation prob- lems (42 U.S.C. 2000c–4). 20. Higher education students loan pro- gram (Title II, National Defense Education Act, 20 U.S.C. 421–429). 21. Educational Opportunity grants and as- sistance for State and private programs of low-interest insured loans and State loans to students in institutions of higher education (Title IV, Higher Education Act of 1965, 20 U.S.C. 1061–1087). 22. Grants and contracts for the conduct of Talent Search, Upward Bound, and Special Services Programs (20 U.S.C. 1068). 23. Land-grant college aid (7 U.S.C. 301–308; 321–326; 328–331). 24. Lang 087). 22. Grants and contracts for the conduct of Talent Search, Upward Bound, and Special Services Programs (20 U.S.C. 1068). 23. Land-grant college aid (7 U.S.C. 301–308; 321–326; 328–331). 24. Language and area centers (Title VI, National Defense Education Act, 20 U.S.C. 511). 25. American Printing House for the Blind (20 U.S.C. 101–105). 26. Future Farmers of America (36 U.S.C. 271–391) and similar programs. 27. Science clubs (Pub. L. 85–875, 20 U.S.C. 2, note). 28. Howard University (20 U.S.C. 121–129). 29. Gallaudet College (31 D.C. Code, Ch. 10). 30. Establishment and operation of a model secondary school for the deaf by Gallaudet College (31 D.C. Code 1051–1053; 80 Stat. 1027– 1028). 31. Faculty development programs, work- shops and institutes (20 U.S.C. 1131–1132). 9. Research in teaching modern foreign 32. National Technical Institute for the languages (20 U.S.C. 512). Deaf (20 U.S.C. 681–685). 10. Training projects for manpower devel- opment and training (42 U.S.C. 2601, 2602, 2610a–2610c). 11. Research and training projects in Voca- tional Education (20 U.S.C. 1281(a), 1282–1284). 12. Allowances to institutions training NDEA graduate fellows (20 U.S.C. 461–465). 33. Ins 2, 2610a–2610c). 11. Research and training projects in Voca- tional Education (20 U.S.C. 1281(a), 1282–1284). 12. Allowances to institutions training NDEA graduate fellows (20 U.S.C. 461–465). 33. Institutes and other programs for train- ing educational personnel (Parts D, E, and F, Title V, Higher Education Act of 1965) (20 U.S.C. 1119–1119c–4). 34. Grants and contracts for research and demonstration projects in librarianship (20 U.S.C. 1034). 13. Grants for training in librarianship (20 35. Acquisition of college library resources U.S.C. 1031–1033). (20 U.S.C. 1021–1028). 14. Grants for training personnel for the education of handicapped children (20 U.S.C. 1431). 15. Allowances for institutions training teachers and related educational personnel in elementary and secondary education, or post-secondary vocational education (20 U.S.C. 1111–1118). 36. Grants for strengthening developing in- stitutions of higher education (20 U.S.C. 1051–1054); National Fellowships for teaching at developing institutions (20 U.S.C. 1055), and grants to retired professors to teach at developing institutions (20 U.S.C. 1056). 37. College Work-Study Program (42 U.S.C. 2751–2757). 435 Pt. 80, App. A 45 oping institutions (20 U.S.C. 1055), and grants to retired professors to teach at developing institutions (20 U.S.C. 1056). 37. College Work-Study Program (42 U.S.C. 2751–2757). 435 Pt. 80, App. A 45 CFR Subtitle A (10–1–24 Edition) 38. Financial assistance for acquisition of higher education equipment, and minor re- modeling (20 U.S.C. 1121–1129). 39. Grants for special experimental dem- onstration projects and teacher training in adult education (20 U.S.C. 1208). 40. Grant programs for advanced and un- dergraduate international studies (20 U.S.C. 1171–1176; 22 U.S.C. 2452(b)). 41. Experimental projects for developing State leadership or establishment of special services (20 U.S.C. 865). 42. Grants to and arrangements with State educational and other agencies to meet spe- cial educational needs of migratory children of migratory agricultural workers (20 U.S.C. 241e(c)). 43. Grants by the Commissioner of Edu- cation to local educational agencies for sup- plementary educational centers and services; guidance, counseling, and testing (20 U.S.C. 841–844; 844b). 44. Resource centers for improvement of education of handicapped children (20 U.S.C. 1421) and centers and services for deaf- and services; guidance, counseling, and testing (20 U.S.C. 841–844; 844b). 44. Resource centers for improvement of education of handicapped children (20 U.S.C. 1421) and centers and services for deaf-blind children (20 U.S.C. 1422). 45. Recruitment of personnel and dissemi- nation of information on education of handi- capped (20 U.S.C. 1433). 46. Grants for research and demonstrations relating to physical education or recreation for handicapped children (20 U.S.C. 1442) and training of physical educators and recreation personnel (20 U.S.C. 1434). 47. Dropout prevention projects (20 U.S.C. 887). 48. Bilingual education programs (20 U.S.C. 880b–880b–6). 49. Grants to agencies and organizations for Cuban refugees (22) U.S.C. 2601(b)(4). 50. Grants and contracts for special pro- grams for children with specific learning dis- abilities including research and related ac- tivities, training and operating model cen- ters (20 U.S.C. 1461). 51. Curriculum development in vocational and technical education (20 U.S.C. 1391). 52. Establishment, including construction, and operation of a National Center on Edu- cational Media and Materials for the Handi- capped (20 U.S.C. 1453). 53. Grants and co education (20 U.S.C. 1391). 52. Establishment, including construction, and operation of a National Center on Edu- cational Media and Materials for the Handi- capped (20 U.S.C. 1453). 53. Grants and contracts for the develop- ment and operation of experimental pre- school and early education programs for handicapped (20 U.S.C. 1423). 54. Grants to public or private non-profit agencies to carry on the Follow Through Program in kindergarten and elementary schools (42 U.S.C. 2809 (a)(2)). 55. Grants for programs of cooperative edu- cation and grants and contracts for training and research in cooperative education (20 U.S.C. 1087a–1087c). 56. Grants and contracts to encourage the sharing of college facilities and resources (network for knowledge) (20 U.S.C. 1133– 1133b). 57. Grants, contracts, and fellowships to improve programs preparing persons for pub- lic service and to attract students to public service (20 U.S.C. 1134–1134b). 58. Grants for the improvement of graduate programs (20 U.S.C. 1135–1135c). 59. Contracts for expanding and improving law school clinical experience programs (20 U.S.C. 1136–1136b). 60. Exemplary programs and projects in vo- cational education (20 U.S.C. 1301 .C. 1135–1135c). 59. Contracts for expanding and improving law school clinical experience programs (20 U.S.C. 1136–1136b). 60. Exemplary programs and projects in vo- cational education (20 U.S.C. 1301–1305). 61. Grants to reduce borrowing cost for construction of residential schools and dor- mitories (20 U.S.C. 1323). 62. Project grants and contracts for re- search and demonstration relating to new or improved health facilities and services (sec- tion 304, PHS Act, 42 U.S.C. 242b). 63. Grants for construction or moderniza- tion of emergency rooms of general hospitals (Title VI, Part C, PHS Act, 42 U.S.C. 291j). 64. Institutional and special projects grants to schools of nursing (sections 805–808, PHS Act, 42 U.S.C. 296d–296g). 65. Grants for construction and initial staffing of facilities for prevention and treat- ment of alcoholism (section 241–2, Commu- nity Mental Health Centers Act (42 U.S.C. 2688 f and g). 66. Grants for construction and initial staffing of specialized facilities for the treat- ment of alcoholics requiring care in such fa- cilities (section 243, Community Mental Health Centers Act, 42 U.S.C. 2688h). 67. Special project grants for training pro- grams, evaluatio for the treat- ment of alcoholics requiring care in such fa- cilities (section 243, Community Mental Health Centers Act, 42 U.S.C. 2688h). 67. Special project grants for training pro- grams, evaluation of existing treatment pro- grams, and conduct of significant programs relating to treatment of alcoholics (section 246, Community Mental Health Centers Act, 42 U.S.C. 2688j–1). 68. Grants for construction and initial staff of treatment facilities for narcotic addicts (section 251, Community Mental Health Cen- ters Act, 42 U.S.C. 2688m). 69. Special project grants for training pro- grams, evaluation of existing treatment pro- grams, and conduct of significant programs relating to treatment of narcotics addicts (section 252, Community Mental Health Cen- ters Act, 42 U.S.C. 2688n–1). 70. Grants for consultation services for Community Mental Health Centers, alco- holism prevention and treatment facilities for narcotic addicts, and facilities for mental health of children (section 264, Community Mental Health Centers Act, 42 U.S.C. 2688r). 71. Grants for construction and initial staff of facilities for mental health of children (section 271, Community Mental Health Cen- ters Act, 42 U.S.C ity Mental Health Centers Act, 42 U.S.C. 2688r). 71. Grants for construction and initial staff of facilities for mental health of children (section 271, Community Mental Health Cen- ters Act, 42 U.S.C. 2688u). 72. Special project grants for training pro- grams and evaluation of existing treatment program relating to mental health of chil- dren (section 272, Community Mental Health Centers Act, 42 U.S.C. 2688x). 73. Grants and loans for construction and modernization of medical facilities in the 436 Dept. of Health and Human Services Pt. 80, App. A District of Columbia (Pub. L. 90–457; 82 Stat. 631–3). 74. Teaching facilities for nurse training (sections. 801–804, Public Health Service Act, 42 U.S.C. 296–296c). 75. Teaching facilities for allied health pro- fessions personnel (section 791, Public Health Service Act, 42 U.S.C. 295h). 76. Mental retardation research facilities (Title VI, Part D, Public Health Service Act, 42 U.S.C. 295–395e). 77. George Washington University Hospital construction (76 Stat. 83, Pub. L. 87–460, May 31, 1962). 78. Research projects, including con- ferences, communication activities and pri- mate or other center grants (sections 301, 303, 304, and 308, Pu truction (76 Stat. 83, Pub. L. 87–460, May 31, 1962). 78. Research projects, including con- ferences, communication activities and pri- mate or other center grants (sections 301, 303, 304, and 308, Public Health Service Act, 42 U.S.C. 241, 242a, 242b, and 242f). 79. General research support (section 301(d), Public Health Service Act, 42 U.S.C. 241). 80. Mental Health demonstrations and ad- ministrative studies (section 303(a)(2), Public Health Service Act, 42 U.S.C. 242a). 81. Migratory workers health services (sec- tion 310, Public Health Service Act, 42 U.S.C. 242h). 82. Immunization programs (section 317, Public Health Service Act, 42 U.S.C. 247b). 83. Health research training projects and fellowship grants (sections 301, 433, Public Health Service Act, 42 U.S.C. 242, 289c). 84. Categorical (heart, cancer, etc.) grants for training, traineeships or fellowships (sec- tions 303, 433, etc., Public Health Service Act, 42 U.S.C. 242a, 289c, etc.). 85. Advanced nurse traineeships (section 821, Public Health Serv- ice Act, 42 U.S.C. 297). professional 86. Department projects under Appalachian Regional Development Act (40 U.S.C. App. A). 87. Grants to institutions for traineeships for p 821, Public Health Serv- ice Act, 42 U.S.C. 297). professional 86. Department projects under Appalachian Regional Development Act (40 U.S.C. App. A). 87. Grants to institutions for traineeships for professional public health personnel sec- tion 306, Public Health Service Act, 42 U.S.C. 242d). 88. Grants for graduate or specialized training in public health (section 309, Public Health Service Act, 42 U.S.C. 242g). 89. Health professions school student loan program (Title VII, Part C, Public Health Service Act, 42 U.S.C. 294–294(k)). 90. Grants for provision in schools of public health of training, consultation and tech- nical assistance in the field of public health and in the administration of state or local public health programs (section 309(c)), Pub- lic Health Service Act, 42 U.S.C. 242(g)(c)). 91. Project grants for training, studies, or demonstrations looking metropolitan area, or other local area plans for health services (section 314(c), Public Health Service Act, 42 U.S.C. 246(c)). 92. Project grants for training, studies, or demonstrations looking toward the develop- ment of improved comprehensive health planning (section 314(c), Public Health Serv- ice Act, 42 U.S.C. 24 6(c)). 92. Project grants for training, studies, or demonstrations looking toward the develop- ment of improved comprehensive health planning (section 314(c), Public Health Serv- ice Act, 42 U.S.C. 246(c)). 93. Project grants for health services devel- opment (section 314(e), Public Health Service Act, 42 U.S.C. 246(e)). 94. Institutional and special grants to health professions schools (Title VII, Part E, Public Health Service Act, 42 U.S.C. 295f– 295f–4). 95. Improvement grants to centers for al- lied health professions (section 792, Public Health Service Act, 42 U.S.C. 295h–1). 96. Scholarship grants to health profes- sions schools (Title VII, Part F, Public Health Service Act, 42 U.S.C. 295h–1). 97. Scholarship grants to schools of nursing (Title VIII, Part D, Public Health Service Act, 42 U.S.C. 198c–298c–6). 98. Traineeships for advanced training of allied health professions personnel (section 793, Public Health Service Act, 42 U.S.C. 295h–2). 99. Contracts to encourage full utilization of nursing educational talent (section 868, Public Health Service Act, 42 U.S.C. 298c–7). 100. Grants to community mental health centers for the compensation of professional and technical pers ization of nursing educational talent (section 868, Public Health Service Act, 42 U.S.C. 298c–7). 100. Grants to community mental health centers for the compensation of professional and technical personnel for the initial oper- ation of new centers or of new services in centers (Community Mental Health Centers Act, Part B, 42 U.S.C. 2688–2688d). 101. Grants for the planning, construction, equipment and operation of multicounty demonstration health projects in the Appa- lachian region (section 202 of Appalachian Regional Development Act, Pub. L. 89–4, as amended, Pub. L. 90–103 40 U.S.C. App. 202). 102. Education, research, training, and demonstrations in the fields of heart disease, cancer, stroke and related diseases (sections 900–110, Public Health Service Act, 42 U.S.C. 299a-j). 103. Assistance to medical libraries (sec- tions 390–399, Public Health Service Act, 42 U.S.C. 280b–280b–9). 104. Nursing student loans (sections 822–828. Public Health Service Act, 42 U.S.C. 297a-g). 105. Hawaii leprosy payments (section 331, Public Health Service Act, 42 U.S.C. 255). 106. Heart disease laboratories and related facilities for patient care (section 412(d), Public Health Service Act, 42 U awaii leprosy payments (section 331, Public Health Service Act, 42 U.S.C. 255). 106. Heart disease laboratories and related facilities for patient care (section 412(d), Public Health Service Act, 42 U.S.C. 287a(d)). 107. Grants for construction of hospitals serving Indians (Pub. L. 85–151, 42 U.S.C. 2005). 108. Indian Sanitation Facilities (Pub. L. 86–121, 42 U.S.C. 2004a). 109. Research projects relating to maternal and child health services and crippled chil- dren’s services (42 U.S.C. 712). 110. Maternal and child health special project grants to State agencies and institu- tions of higher learning (42 U.S.C. 703(s)). 111. Maternity and infant care and family planning services; special project grants to local health agencies and other organiza- tions (42 U.S.C. 708). 437 Pt. 80, App. A 45 CFR Subtitle A (10–1–24 Edition) 112. Special project grants to State agen- cies and institutions of higher learning for crippled children’s services (42 U.S.C. 704(2)). 113. Special project grants for health of school and preschool children (42 U.S.C. 709) and for dental health of children (42 U.S.C. 710). 114. Grants to institutions of higher learn- ing for training personnel for health care for health of school and preschool children (42 U.S.C. 709) and for dental health of children (42 U.S.C. 710). 114. Grants to institutions of higher learn- ing for training personnel for health care and related services for mothers and children (42 U.S.C. 711). 115. Grants and contracts for the conduct of research, experiments, or demonstrations relating to the developments, utilization, quality, organization, and financing of serv- ices, facilities, and resources of hospitals, long-term care facilities, for other medical facilities (section 304, Public Health Service Act, as amended by Pub. L. 90–174, 42 U.S.C. 242b). 116. Health research facilities (Title VII Part A, Public Health Service Act, 42 U.S.C. 292–292j). 117. Teaching facilities for health profes- sions personnel (Title VII, Part B, Public Health Service Act, 42 U.S.C. 293–293h). 118. Project grants and contracts for re- search, development, training, and studies in the field of electronic product radiation (sec- tion 356, Public Health Service Act, 42 U.S.C. 263d). 119. Project grants and contracts for re- search, studies, demonstrations, training, and education relating to coal mine health (section 501, Federal Coal Public Health Service Act, 42 U.S.C. 263d). 119. Project grants and contracts for re- search, studies, demonstrations, training, and education relating to coal mine health (section 501, Federal Coal Mine Health and Safety Act of 1969, Public Law 91–173). 120. Surplus real and related personal prop- erty disposal (40 U.S.C. 484(k)). 121. Supplementary medical insurance ben- efits for the aged (Title XVIII, Part A, Social Security Act, 42 U.S.C. 1395c–1395i–2). 122. Issuance of rent-free permits for vend- ing stands, credit unions, employee associa- tions, etc. (20 U.S.C. 107–107f; 45 CFR Part 20; section 25, 12 U.S.C. 1170). 123. Grants for special vocational rehabili- tation projects (29 U.S.C. 34(a)(1)). 124. Experimental, pilot or demonstration projects to promote the objectives of Title I, X, XIV, XVI, or XIX or Part A of Title IV of the Social Security Act (42 U.S.C. 1315). 125. Social Security and welfare coopera- tive research or demonstration projects (42 U.S.C. 1310). 126. Child welfare research, training, or demonstration projects (42 U.S.C. 626). 127. Training projects (Title VI, Older Americans Act, 42 U.S.C. 3041–3042). 128. Grants for expansion of vocational re- habil ld welfare research, training, or demonstration projects (42 U.S.C. 626). 127. Training projects (Title VI, Older Americans Act, 42 U.S.C. 3041–3042). 128. Grants for expansion of vocational re- habilitation services (29 U.S.C. 34(a)(2) (A)). 129. Grants for construction of rehabilita- tion facilities (29 U.S.C. 41a(a)–(e)) and for initial staffing of rehabilitation facilities (29 U.S.C. 41a(f)). 130. Project development grants for reha- bilitation facilities (29 U.S.C. 41a(g)(2)). 131. Rehabilitation Facility improvement grants (29 U.S.C. 41b(b)). 132. Agreement for the establishment and operation of a national center for deaf-blind youths and adults (29 U.S.C. 42a). 133. Project grants for services for migra- tory agricultural workers (29 U.S.C. 42b). 134. Grants for initial staffing of commu- nity mental retardation facilities (42 U.S.C. 2678–2678d). 135. Grants for training welfare personnel and for expansion and development of under- graduate and graduate social work programs (42 U.S.C. 906, 908). 136. Research and development projects concerning older Americans (42 U.S.C. 3031– 3032). 137. Grants to States for training of nurs- ing home administrators (42 U.S.C. 1396g (e)). 1 U.S.C. 906, 908). 136. Research and development projects concerning older Americans (42 U.S.C. 3031– 3032). 137. Grants to States for training of nurs- ing home administrators (42 U.S.C. 1396g (e)). 138. Contracts or jointly financed coopera- tive arrangements with industry (29 U.S.C. 34(a)(2)(B)). 139. Project grants for new careers in reha- bilitation (29 U.S.C. 34(a)(2)(C)). 140. Children of low-income families (20 U.S.C. 241a–241m). 141. Grants for training (29 U.S.C. 37(a) (2)). 142. Grants for projects for training serv- ices (29 U.S.C. 41b(a)). 143. Grants for comprehensive juvenile de- linquency planning (42 U.S.C. 3811). 144. Grants for project planning in juvenile delinquency (42 U.S.C. 3812). 145. Grants for juvenile delinquency reha- bilitative services projects (42 U.S.C. 3822, 3842). 146. Grants for juvenile delinquency pre- ventive service projects (42 U.S.C. 3861). 147. Grants for training projects in juvenile delinquency fields (42 U.S.C. 3861). 148. Grants for development of improved techniques and practices in juvenile delin- quency services (42 U.S.C. 3871). 149. Grants for technical assistance in juve- nile delinquency services (42 U.S.C. 3872). 150. Grants for ment of improved techniques and practices in juvenile delin- quency services (42 U.S.C. 3871). 149. Grants for technical assistance in juve- nile delinquency services (42 U.S.C. 3872). 150. Grants for State technical assistance to local units in juvenile delinquency serv- ices (42 U.S.C. 3873). 151. Grants for public service centers projects (42 U.S.C. 2744). 152. Grants to public or private non-profit agencies to carry on the Project Headstart Program (42 U.S.C. 2809(a)(1)). 153. Project grants for new careers for the handicapped (29 U.S.C. 34(a)(2)(D)). 154. Construction, demonstration, and training grants for university-affiliated fa- cilities for persons with developmental dis- abilities (42 U.S.C. 2661–2666). 155. Supplementary medical insurance ben- efits for the aged (Title XVIII, Part B, Social Security Act, 42 U.S.C. 1395j–1395w–6). Part 2. Continuing Assistance to State 1. Grants to States for public library serv- ices and construction, interlibrary coopera- tion and specialized State library services 438 Dept. of Health and Human Services Pt. 80, App. B for certain State institutions and the phys- ically handicapped (20 U.S.C. 351–355). 2. Grants to States for strengthen zed State library services 438 Dept. of Health and Human Services Pt. 80, App. B for certain State institutions and the phys- ically handicapped (20 U.S.C. 351–355). 2. Grants to States for strengthening in- struction in academic subjects (20 U.S.C. 441– 444). 3. Grants to States for vocational edu- cation (20 U.S.C. 1241–1264). 4. Arrangements with State education agencies for training under the Manpower Development and Training Act (42 U.S.C. 2601–2602, 2610a). 5. Grants to States to assist in the elemen- tary and secondary education of children of low-income families (20 U.S.C. 241a–241m). 6. Grants to States to provide for school li- brary resources, textbooks and other in- structional materials for pupils and teachers in elementary and secondary schools (20 U.S.C. 821–827). 7. Grants to States to strengthen State de- partments of education (20 U.S.C. 861–870). 8. Grants to States for community service programs (20 U.S.C. 1001–1011). 9. Grants to States for adult basic edu- cation and related research, teacher training and special projects (20 U.S.C. 1201–1211). 10. Grants to State educational agencies for supplementary educational centers and services, and guidance, counseling and related research, teacher training and special projects (20 U.S.C. 1201–1211). 10. Grants to State educational agencies for supplementary educational centers and services, and guidance, counseling and test- ing (20 U.S.C. 841–847). 11. Grants to States for research and train- (20 U.S.C. in vocational education ing 1281(b)). 12. Grants to States for exemplary pro- grams and projects in vocational education (20 U.S.C. 1301–1305). 13. Grants to States for residential voca- tional education schools (20 U.S.C. 1321). 14. Grants to States for consumer and homemaking education (20 U.S.C. 1341). 15. Grants to States for cooperative voca- tional educational program (20 U.S.C. 1351– 1355). 16. Grants to States for vocational workstudy programs (20 U.S.C. 1371–1374). 17. Grants to States to attract and qualify teachers to meet critical teaching shortages (20 U.S.C. 1108–1110c). 18. Grants to States for education of handi- capped children (20 U.S.C. 1411–1414). 19. Grants for administration of State plans and for comprehensive planning to de- termine construction needs of institutions of higher education (20 U.S.C. 715(b)). 20. Grants to States for comprehensive (section 314(a), Public hea State plans and for comprehensive planning to de- termine construction needs of institutions of higher education (20 U.S.C. 715(b)). 20. Grants to States for comprehensive (section 314(a), Public health planning Health Service Act, 42 U.S.C. 246(a)). 21. Grants to States for establishing and maintaining adequate public health services (section 314(d), Public Health Service Act, 42 U.S.C. 246(d)). 22. Grants, loans, and loan guarantees with interest subsidies for hospital and medical facilities (Title VI, Public Health Service Act, 42 U.S.C. 291 et seq.). 23. Grants to States for community mental health centers construction (Community Mental Health Centers Act, Part A, 42 U.S.C. 2681–2687). 24. Cost of rehabilitation services (Title II, Social Security Act section 222(d); 42 U.S.C. 422(d)). 25. Surplus personal property disposal do- nations for health and educational purposes through State agencies (40 U.S.C. 484(j)). 26. Grants for State and community pro- grams on aging (Title III, Older Americans Act, 42 U.S.C. 3021–3025). 27. Grants to States for planning, provision of services, and construction and operation of facilities for persons with developmental disabilities (42 U.S.C. lder Americans Act, 42 U.S.C. 3021–3025). 27. Grants to States for planning, provision of services, and construction and operation of facilities for persons with developmental disabilities (42 U.S.C. 2670–2677c). 28. Grants to States for vocational reha- bilitation services (29 U.S.C. 32); for innova- tion of vocational rehabilitation services (29 U.S.C. 33); and for rehabilitation facilities planning (29 U.S.C. 41a(g)(1)). 29. Designation of State licensing agency for blind operators of vending stands (20 U.S.C. 107–107f). 30. Grants to States for old-age assistance (42 U.S.C. 301 et seq.); aid to families with de- pendent children (42 U.S.C. 601 et seq.); child- welfare services (42 U.S.C. 620 et seq.); aid to the blind (42 U.S.C. 1201 et seq.); aid to the permanently and totally disabled (42 U.S.C. 1351 et seq.); aid to the aged, blind, or dis- abled (42 U.S.C. 1381 et seq.); medical assist- ance (42 U.S.C. 1396 et seq.). 31. Grants to States for maternal and child health and crippled children’s services (42 U.S.C. 701–707); for special projects for mater- nal and infant care (42 U.S.C. 708). 32. Grants to States for juvenile delin- quency preventive and rehabilitative serv- ice ed children’s services (42 U.S.C. 701–707); for special projects for mater- nal and infant care (42 U.S.C. 708). 32. Grants to States for juvenile delin- quency preventive and rehabilitative serv- ices (42 U.S.C. 3841). [38 FR 17982, July 5, 1973; 40 FR 18173, Apr. 25, 1975, as amended at 70 FR 24319, May 9, 2005; 89 FR 37692, May 6, 2024] APPENDIX B TO PART 80—GUIDELINES FOR ELIMINATING DISCRIMINATION AND DENIAL OF SERVICES ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN, SEX, AND HANDICAP IN VO- CATIONAL EDUCATION PROGRAMS I. SCOPE AND COVERAGE A. APPLICATION OF GUIDELINES These Guidelines apply to recipients of any Federal financial assistance from the De- partment of Health and Human Services that offer or administer programs of vocational education or training. This includes State agency recipients. B. DEFINITION OF RECIPIENT The definition of recipient of Federal finan- cial assistance is established by Department regulations implementing title VI, title IX, 439 Pt. 80, App. B 45 CFR Subtitle A (10–1–24 Edition) and section 504 (45 CFR 80.13(i), 86.2(h), 84.3(f). diate employment, a certificate or an asso- ciate degree. For the purposes of title VI: The term recipient means any R Subtitle A (10–1–24 Edition) and section 504 (45 CFR 80.13(i), 86.2(h), 84.3(f). diate employment, a certificate or an asso- ciate degree. For the purposes of title VI: The term recipient means any State, polit- ical subdivision of any State, or instrumen- tality of any State or political subdivision, any public or private agency, institution, or organization, or other entity, or any indi- vidual, in any State, to whom Federal finan- cial assistance is extended, directly or through another recipient, for any program, including any successor, assignee, or trans- feree thereof, but such term does not include any ultimate beneficiary [e.g., students] under any such program. (45 CFR 80.13(i)). For the purpose of title IX: Recipient means any State or political sub- division thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or or- ganization, or other entity, or any person to whom Federal financial assistance is ex- tended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance, including any subunit, successor, assignee, or transferee ded directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance, including any subunit, successor, assignee, or transferee thereof. (45 CFR 86.2(h)). For the purposes of section 504: Recipient means any State or its political subdivision, any instrumentality of a State or its political subdivision, any public or pri- vate agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipi- ent, but excluding the ultimate beneficiary of the assistance. (45 CFR 84.3(f)). C. EXAMPLES OF RECIPIENTS COVERED BY THESE GUIDELINES The following education agencies, when they provide vocational education, are exam- ples of recipients covered by these Guide- lines: 1. The board of education of a public school district and its administrative agency. 2. The administrative board of a specialized vocational high school serving students from more than one school district. 3. The administrative board of a technical or vocation school that is used exclusively or principally for of a specialized vocational high school serving students from more than one school district. 3. The administrative board of a technical or vocation school that is used exclusively or principally for the provision of vocational education to persons who have completed or left high school (including persons seeking a certificate or an associate degree through a vocational program offered by the school) and who are available for study in prepara- tion for entering the labor market. 4. The administrative board of a postsec- ondary institution, such as a technical insti- tute, skill center, junior college, community college, or four year college that has a de- partment or division that provides voca- tional education to students seeking imme- 5. The administrative board of a propri- etary (private) vocational education school. 6. A State agency recipient itself operating a vocational education facility. D. EXAMPLES OF SCHOOLS TO WHICH THESE GUIDELINES APPLY The following are examples of the types of schools to which these Guidelines apply. 1. A junior high school, middle school, or those grades of a comprehensive high school that offers instruction to inform, orient, or prepare students types of schools to which these Guidelines apply. 1. A junior high school, middle school, or those grades of a comprehensive high school that offers instruction to inform, orient, or prepare students for vocational education at the secondary level. 2. A vocational education facility operated by a State agency. 3. A comprehensive high school that has a department exclusively or principally used for providing vocational education; or that offers at least one vocational program to sec- ondary level students who are available for study in preparation for entering the labor market; or that offers adult vocational edu- cation to persons who have completed or left high school and who are available for study in preparation for entering the labor market. 4. A comprehensive high school, offering the activities described above, that receives students on a contract basis from other school districts for the purpose of providing vocational education. 5. A specialized high school used exclu- sively or principally for the provision of vo- cational education, that enrolls students from one or more school districts for the purpose of providing vocational education. 6. A technical or vocational scho or principally for the provision of vo- cational education, that enrolls students from one or more school districts for the purpose of providing vocational education. 6. A technical or vocational school that primarily provides vocational education to persons who have completed or left high school and who are available for study in preparation for entering the labor market, including students seeking an associate de- gree or certificate through a course of voca- tional instruction offered by the school. 7. A junior college, a community college, or four-year college that has a department or division that provides vocational education to students seeking immediate employment, an associate degree or a certificate through a course of vocational instruction offered by the school. 8. A proprietary school, licensed by the State, that offers vocational education. NOTE: Subsequent sections of these Guide- lines may use the term secondary vocational education center in referring to the institu- tions described in paragraphs 3, 4 and 5 above or the term postsecondary vocational edu- cation center in referring to institutions de- scribed in paragraphs 6 and 7 above or the term vocational educat ions described in paragraphs 3, 4 and 5 above or the term postsecondary vocational edu- cation center in referring to institutions de- scribed in paragraphs 6 and 7 above or the term vocational education center in referring to any or all institutions described above. 440 Dept. of Health and Human Services Pt. 80, App. B II. RESPONSIBILITIES ASSIGNED ONLY TO STATE AGENCY RECIPIENTS A. RESPONSIBILITIES OF ALL STATE AGENCY RECIPIENTS State agency recipients, in addition to complying with all other provisions of the Guidelines relevant to them, may not re- quire, approve of, or engage in any discrimi- nation or denial of services on the basis of race, color, national origin, sex, or handicap in performing any of the following activities: 1. Establishment of criteria or formulas for distribution of Federal or State funds to vo- cational education programs in the State; 2. Establishment of requirements for ad- mission to or requirements for the adminis- tration of vocational education programs; 3. Approval of action by local entities pro- viding vocational education. (For example, a State agency must ensure compliance with section IV of these Guidelines if and when it reviews a vocationa ms; 3. Approval of action by local entities pro- viding vocational education. (For example, a State agency must ensure compliance with section IV of these Guidelines if and when it reviews a vocational education agency deci- sion to create or change a geographic service area.); 4. Conducting its own programs. (For ex- ample, in employing its staff it may not dis- criminate on the basis of sex or handicap.) B. STATE AGENCIES PERFORMING OVERSIGHT RESPONSIBILITIES The State agency responsible for the ad- ministration of vocational education pro- grams must adopt a compliance program to prevent, identify and remedy discrimination on the basis of race, color, national origin, sex or handicap by its subrecipients. (A sub- recipient, in this context, is a local agency or vocational education center that receives fi- nancial assistance through a State agency.) This compliance program must include: 1. Collecting and analyzing civil rights re- lated data and information that subrecipi- ents compile for their own purposes or that are submitted to State and Federal officials under existing authorities; 2. Conducting periodic compliance reviews of selected subrecipients (i.e., an investiga- tio ile for their own purposes or that are submitted to State and Federal officials under existing authorities; 2. Conducting periodic compliance reviews of selected subrecipients (i.e., an investiga- tion of a subrecipient to determine whether it engages in unlawful discrimination in any aspect of its program); upon finding unlawful discrimination, notifying the subrecipient of steps it must take to attain compliance and attempting to obtain voluntary compliance; 3. Providing technical assistance upon re- quest to subrecipients. This will include as- sisting subrecipients identify unlawful dis- crimination and instructing them in rem- edies for and prevention of such discrimina- tion; 4. Periodically reporting its activities and findings under the foregoing paragraphs, in- cluding findings of unlawful discrimination under paragraph 2, immediately above, to the Office for Civil Rights. State agencies are not required to termi- nate or defer assistance to any subrecipient. Nor are they required to conduct hearings. The responsibilities of the Office for Civil Rights to collect and analyze data, to con- duct compliance reviews, to investigate com- plaints and to provide technical assista ired to conduct hearings. The responsibilities of the Office for Civil Rights to collect and analyze data, to con- duct compliance reviews, to investigate com- plaints and to provide technical assistance are not diminished or attenuated by the re- quirements of Section II of the Guidelines. C. STATEMENT OF PROCEDURES AND PRACTICES Within one year from the publication of these Guidelines in final form, each State agency recipient performing oversight re- sponsibilities must submit to the Office for Civil Rights the methods of administration and related procedures it will follow to com- ply with the requirements described in para- graphs A and B immediately above. The De- partment will review each submission and will promptly either approve it, or return it to State officials for revision. III. DISTRIBUTION OF FEDERAL FINANCIAL AS- SISTANCE AND OTHER FUNDS FOR VOCA- TIONAL EDUCATION A. AGENCY RESPONSIBILITIES Recipients that administer grants for voca- tional education must distribute Federal, State, or local vocational education funds so that no student or group of students is un- lawfully denied an equal opportunity to ben- efit from vocational education on the basis of race, color deral, State, or local vocational education funds so that no student or group of students is un- lawfully denied an equal opportunity to ben- efit from vocational education on the basis of race, color, national origin, sex, or handi- cap. B. DISTRIBUTION OF FUNDS Recipients may not adopt a formula or other method for the allocation of Federal, State, or local vocational education funds that has the effect of discriminating on the basis of race, color, national origin, sex, or handicap. However, a recipient may adopt a formula or other method of allocation that uses as a factor race, color, national origin, sex, or handicap [or an index or proxy for race, color, national origin, sex, or handicap e.g., number of persons receiving Aid to Families with Dependent Children or with limited English speaking ability] if the fac- tor is included to compensate for past dis- crimination or to comply with those provi- sions of the Vocational Education Amend- ments of 1976 designed to assist specified pro- tected groups. C. EXAMPLE OF A PATTERN SUGGESTING UNLAWFUL DISCRIMINATION In each State it is likely that some local recipients will enroll greater proportions of minority students in vocation ed pro- tected groups. C. EXAMPLE OF A PATTERN SUGGESTING UNLAWFUL DISCRIMINATION In each State it is likely that some local recipients will enroll greater proportions of minority students in vocational education than the State-wide proportion of minority students in vocational education. A funding formula or other method of allocation that results in such local recipients receiving per- 441 Pt. 80, App. B 45 CFR Subtitle A (10–1–24 Edition) pupil allocations of Federal or State voca- tional education funds lower than the State- wide average per-pupil allocation will be pre- sumed unlawfully discriminatory. nonminority and minority communities, and that do not tend to identify the facility or program as intended for nonminority or mi- nority students. D. DISTRIBUTION THROUGH COMPETITIVE GRANTS OR CONTRACTS C. ELIGIBILITY FOR ADMISSION TO VOCATIONAL EDUCATION CENTERS BASED ON RESIDENCE Each State agency that establishes criteria for awarding competitive vocational edu- cation grants or contracts must establish and apply the criteria without regard to the race, color, national origin, sex, or handicap of any or all of a recipient’s students, except to compensate for past discriminati contracts must establish and apply the criteria without regard to the race, color, national origin, sex, or handicap of any or all of a recipient’s students, except to compensate for past discrimination. E. APPLICATION PROCESSES FOR COMPETITIVE OR DISCRETIONARY GRANTS State agencies must disseminate informa- tion needed to satisfy the requirements of any application process for competitive or discretionary grants so that all recipients, including those having a high percentage of minority or handicapped students, are in- formed of and able to seek funds. State agen- cies that provide technical assistance for the completion of the application process must provide such assistance without discrimina- tion against any one recipient or class of re- cipients. F. ALTERATION OF FUND DISTRIBUTION TO PROVIDE EQUAL OPPORTUNITY If the Office for Civil Rights finds that a recipient’s system for distributing voca- tional education funds unlawfully discrimi- nates on the basis of race, color, national or- igin, sex, or handicap, it will require the re- cipient to adopt an alternative nondiscrim- inatory method of distribution. The Office for Civil Rights may also require the recipi- ent to compen l or- igin, sex, or handicap, it will require the re- cipient to adopt an alternative nondiscrim- inatory method of distribution. The Office for Civil Rights may also require the recipi- ent to compensate for the effects of its past unlawful discrimination in the distribution of funds. IV. ACCESS AND ADMISSION OF STUDENTS TO VOCATIONAL EDUCATION PROGRAMS A. RECIPIENT RESPONSIBILITIES Criteria controlling student eligibility for admission to vocational education schools, facilities and programs may not unlawfully discriminate on the basis of race, color, na- tional origin, sex, or handicap. A recipient may not develop, impose, maintain, approve, or implement such discriminatory admis- sions criteria. B. SITE SELECTION FOR VOCATIONAL SCHOOLS Recipients may not establish, approve or maintain geographic boundaries for a voca- tional education center service area or at- tendance zone, (hereinafter service area), that unlawfully exclude students on the basis of race, color, or national origin. The Office for Civil Rights will presume, subject to rebut- tal, that any one or combination of the fol- lowing circumstances indicates that the boundaries of a given service area are unlaw- fully n. The Office for Civil Rights will presume, subject to rebut- tal, that any one or combination of the fol- lowing circumstances indicates that the boundaries of a given service area are unlaw- fully constituted: 1. A school system or service area contig- uous to the given service area, contains mi- nority or nonminority students in substan- tially greater proportion than the given service area; 2. A substantial number of minority stu- dents who reside outside the given voca- tional education center service area, and who are not eligible for the center reside, nonetheless, as close to the center as a sub- stantial number of non-minority students who are eligible for the center; 3. The over-all vocational education pro- gram of the given service area in comparison to the over-all vocational education program of a contiguous school system or service area enrolling a substantially greater proportion of minority students: (a) Provides its stu- dents with a broader range of curricular of- ferings, facilities and equipment; or (b) pro- vides its graduates greater opportunity for employment in jobs: (i) For which there is a demonstrated need in the community or re- gion; (ii) that pay hig erings, facilities and equipment; or (b) pro- vides its graduates greater opportunity for employment in jobs: (i) For which there is a demonstrated need in the community or re- gion; (ii) that pay higher entry level salaries or wages; or (iii) that are generally acknowl- edged to offer greater prestige or status. D. ADDITIONS AND RENOVATIONS TO EXISTING VOCATIONAL EDUCATION FACILITIES A recipient may not add to, modify, or ren- ovate the physical plant of a vocational edu- cation facility in a manner that creates, maintains, or increases student segregation on the basis of race, color, national origin, sex, or handicap. E. REMEDIES FOR VIOLATIONS OF SITE SELEC- TION AND GEOGRAPHIC SERVICE AREA RE- QUIREMENTS State and local recipients may not select or approve a site for a vocational education facility for the purpose or with the effect of excluding, segregating, or otherwise dis- criminating against students on the basis of race, color, or national origin. Recipients must locate vocational education facilities at sites that are readily accessible to both If the conditions specified in paragraphs IV, A, B, C, or D, immediately above, are found and not rebutted by proof of non- disc ional education facilities at sites that are readily accessible to both If the conditions specified in paragraphs IV, A, B, C, or D, immediately above, are found and not rebutted by proof of non- discrimination, the Office for Civil rights will require the recipient(s) to submit a plan to remedy the discrimination. The following are examples of steps that may be included in the plan, where necessary to overcome the 442 Dept. of Health and Human Services Pt. 80, App. B discrimination: (1) Redrawing of the bound- aries of the vocational education center’s service area to include areas unlawfully ex- cluded and/or to exclude areas unlawfully in- cluded; (2) provision of transportation to stu- dents residing in areas unlawfully excluded; (3) provision of additional programs and services to students who would have been eli- gible for attendance at the vocational edu- cation center but for the discriminatory service area or site selection; (4) reassign- ment of students; and (5) construction of new facilities or expansion of existing facilities. F. ELIGIBILITY FOR ADMISSION TO SECONDARY VOCATIONAL EDUCATION CENTERS BASED ON NUMERICAL LIMITS IMPOSED ON SENDING SCHOOLS A recipient may not of new facilities or expansion of existing facilities. F. ELIGIBILITY FOR ADMISSION TO SECONDARY VOCATIONAL EDUCATION CENTERS BASED ON NUMERICAL LIMITS IMPOSED ON SENDING SCHOOLS A recipient may not adopt or maintain a system for admission to a secondary voca- tional education center or program that lim- its admission to a fixed number of students from each sending school included in the center’s service area if such a system dis- proportionately excludes students from the center on the basis of race, sex, national ori- gin or handicap. (Example: Assume 25 per- cent of a school district’s high school stu- dents are black and that most of those black students are enrolled in one high school; the white students, 75 percent of the district’s total enrollment, are generally enrolled in the five remaining high schools. This para- graph prohibits a system of admission to the secondary vocational education center that limits eligibility to a fixed and equal number of students from each of the district’s six high schools.) G. REMEDIES FOR VIOLATION OF ELIGIBILITY BASED ON NUMERICAL LIMITS REQUIREMENTS If the Office for Civil Rights finds a viola- tion of paragraph F, above, the recipient e district’s six high schools.) G. REMEDIES FOR VIOLATION OF ELIGIBILITY BASED ON NUMERICAL LIMITS REQUIREMENTS If the Office for Civil Rights finds a viola- tion of paragraph F, above, the recipient must implement an alternative system of ad- missions that does not disproportionately exclude students on the basis of race, color, national origin, sex, or handicap. H. ELIGIBILITY FOR ADMISSION TO VOCATIONAL EDUCATION CENTERS, BRANCHES OR ANNEXES BASED UPON STUDENT OPTION A vocational education center, branch or annex, open to all students in a service area and predominantly enrolling minority stu- dents or students of one race, national origin or sex, will be presumed unlawfully seg- regated if: (1) It was established by a recipi- ent for members of one race, national origin or sex; or (2) it has since its construction been attended primarily by members of one race, national origin or sex; or (3) most of its program offerings have traditionally been se- lected predominantely by members of one race, national origin or sex. I. REMEDIES FOR FACILITY SEGREGATION UNDER STUDENT OPTION PLANS If the conditions specified in paragraph IV- H are found and not rebutted by proof of non- discrimi of one race, national origin or sex. I. REMEDIES FOR FACILITY SEGREGATION UNDER STUDENT OPTION PLANS If the conditions specified in paragraph IV- H are found and not rebutted by proof of non- discrimination, the Office for Civil Rights will require the recipient(s) to submit a plan to remedy the segregation. The following are examples of steps that may be included in the plan, where necessary to overcome the discrimination: (1) elimination of program duplication in the segregated facility and other proximate vocational facilities; (2) relocation or ‘‘clus- tering’’ of programs or courses; (3) adding programs and courses that traditionally have been identified as intended for members of a particular race, national origin or sex to schools that have traditionally served mem- bers of the other sex or traditionally served persons of a different race or national origin; (4) merger of programs into one facility through school closings or new construction; (5) intensive outreach recruitment and coun- seling; (6) providing free transportation to students whose enrollment would promote desegregation. [Paragraph J omitted] K. ELIGIBILITY BASED ON EVALUATION OF EACH APPLICANT UNDER ADMISSIONS nd coun- seling; (6) providing free transportation to students whose enrollment would promote desegregation. [Paragraph J omitted] K. ELIGIBILITY BASED ON EVALUATION OF EACH APPLICANT UNDER ADMISSIONS CRITERIA Recipients may not judge candidates for admission to vocational education programs on the basis of criteria that have the effect of disproportionately excluding persons of a particular race, color, national origin, sex, or handicap. However, if a recipient can dem- onstrate that such criteria have been vali- dated as essential to participation in a given program and that alternative equally valid criteria that do not have such a dispropor- tionate adverse effect are unavailable, the criteria will be judged nondiscriminatory. Examples of admissions criteria that must meet this test are past academic perform- ance, record of disciplinary infractions, counselors’ approval, teachers’ recommenda- tions, interest inventories, high school diplo- mas and standardized tests, such as the Test of Adult Basic Education (TABE). An introductory, preliminary, or explor- atory course may not be established as a pre- requisite for admission to a program unless the course has been and is avail est of Adult Basic Education (TABE). An introductory, preliminary, or explor- atory course may not be established as a pre- requisite for admission to a program unless the course has been and is available without regard to race, color, national origin, sex, and handicap. However, a course that was formerly only available on a discriminatory basis may be made a prerequisite for admis- sion to a program if the recipient can dem- onstrate that: (a) the course is essential to participation in the program; and (b) the course is presently available to those seek- ing enrollment for the first time and to those formerly excluded. 443 Pt. 80, App. B 45 CFR Subtitle A (10–1–24 Edition) L. ELIGIBILITY OF NATIONAL ORIGIN MINORITY PERSONS WITH LIMITED ENGLISH LANGUAGE SKILLS Recipients may not restrict an applicant’s admission to vocational education programs because the applicant, as a member of a na- tional origin minority with limited English language skills, cannot participate in and benefit from vocational instruction to the same extent as a student whose primary lan- guage is English. It is the responsibility of the recipient to identify such applicants and assess their ability to partici om vocational instruction to the same extent as a student whose primary lan- guage is English. It is the responsibility of the recipient to identify such applicants and assess their ability to participate in voca- tional instruction. Acceptable methods of identification in- clude: (1) Identification by administrative staff, teachers, or parents of secondary level students; (2) identification by the student in postsecondary or adult programs; and (3) ap- if nec- propriate diagnostic procedures, essary. Recipients must take steps to open all vo- cational programs to these national origin minority students. A recipient must dem- onstrate that a concentration of students with limited English language skills in one or a few programs is not the result of dis- criminatory limitations upon the opportuni- ties available to such students. M. REMEDIAL ACTION IN BEHALF OF PERSONS WITH LIMITED ENGLISH LANGUAGE SKILLS If the Office for Civil Rights finds that a recipient has denied national origin minor- ity persons admission to a vocational school or program because of their limited English language skills or has assigned students to vocational programs solely on the basis of their limited Engl inor- ity persons admission to a vocational school or program because of their limited English language skills or has assigned students to vocational programs solely on the basis of their limited English language skills, the re- cipient will be required to submit a remedial plan that insures national origin minority students equal access to vocational edu- cation programs. N. EQUAL ACCESS FOR HANDICAPPED STUDENTS Recipients may not deny handicapped stu- dents access to vocational education pro- grams or courses because of architectural or equipment barriers, or because of the need for related aids and services or auxiliary aids. If necessary, recipients must: (1) Modify instructional equipment; (2) modify or adapt the manner in which the courses are offered; (3) house the program in facilities that are readily accessible to mobility impaired stu- dents or alter facilities to make them read- ily accessible to mobility impaired students; and (4) provide auxiliary aids that effectively make lectures and necessary materials avail- able to postsecondary handicapped students; (5) provide related aids or services that as- sure secondary students an appropriate edu- cation. Academic requir ke lectures and necessary materials avail- able to postsecondary handicapped students; (5) provide related aids or services that as- sure secondary students an appropriate edu- cation. Academic requirements that the recipient can demonstrate are essential to a program of instruction or to any directly related li- censing requirement will not be regarded as discriminatory. However, where possible, a recipient must adjust those requirements to the needs of individual handicapped stu- dents. Access to vocational programs or courses may not be denied handicapped students on the ground that employment opportunities in any occupation or profession may be more limited for handicapped persons than for non-handicapped persons. O. PUBLIC NOTIFICATION Prior to the beginning of each school year, recipients must advise students, parents, em- ployees and the general public that all voca- tional opportunities will be offered without regard to race, color, national origin, sex, or handicap. Announcement of this policy of non-discrimination may be made, for exam- ple, in local newspapers, recipient publica- tions and/or other media that reach the gen- eral public, program beneficiaries, minori- tie nt of this policy of non-discrimination may be made, for exam- ple, in local newspapers, recipient publica- tions and/or other media that reach the gen- eral public, program beneficiaries, minori- ties (including national origin minorities language skills), with women, and handicapped persons. A brief summary of program offerings and admission criteria should be included in the announce- ment; also the name, address and telephone number of the person designated to coordi- nate Title IX and Section 504 compliance ac- tivity. limited English If a recipient’s service area contains a community of national origin minority per- sons with limited English language skills, public notification materials must be dis- seminated to that community in its lan- guage and must state that recipients will take steps to assure that the lack of English language skills will not be a barrier to ad- mission and participation in vocational edu- cation programs. V. COUNSELING AND PREVOCATIONAL PROGRAMS A. RECIPIENT RESPONSIBILITIES Recipients must insure that their coun- seling materials and activities (including student program selection and career/em- ployment selection), promotional, and re- cruitment ef IENT RESPONSIBILITIES Recipients must insure that their coun- seling materials and activities (including student program selection and career/em- ployment selection), promotional, and re- cruitment efforts do not discriminate on the basis of race, color, national origin, sex, or handicap. B. COUNSELING AND PROSPECTS FOR SUCCESS Recipients that operate vocational edu- cation programs must insure that counselors do not direct or urge any student to enroll in a particular career or program, or measure or predict a student’s prospects for success in any career or program based upon the stu- dent’s race, color, national origin, sex, or 444 Dept. of Health and Human Services Pt. 80, App. B handicap. Recipients may not counsel handi- capped students toward more restrictive ca- reer objectives than nonhandicapped stu- dents with similar abilities and interests. If a vocational program disproportionately en- rolls male or female students, minority or nonminority students, or handicapped stu- dents, recipients must take steps to insure that the disproportion does not result from unlawful discrimination in counseling activi- ties. C. STUDENT RECRUITMENT ACTIVITIES Recipients must conduct thei nts, recipients must take steps to insure that the disproportion does not result from unlawful discrimination in counseling activi- ties. C. STUDENT RECRUITMENT ACTIVITIES Recipients must conduct their student re- cruitment activities so as not to exclude or limit opportunities on the basis of race, color, national origin, sex, or handicap. Where recruitment activities involve the presentation or portrayal of vocational and career opportunities, the curricula and pro- grams described should cover a broad range of occupational opportunities and not be limited on the basis of the race, color, na- tional origin, sex, or handicap of the stu- dents or potential students to whom the presentation is made. Also, to the extent possible, recruiting teams should include persons of different races, national origins, sexes, and handicaps. D. COUNSELING OF STUDENTS WITH LIMITED ENGLISH-SPEAKING ABILITY OR HEARING IM- PAIRMENTS Recipients must insure that counselors can effectively communicate with national ori- gin minority students with limited English language skills and with students who have hearing impairments. This requirement may be satisfied by having interpreters available. E. PROMOTION ational ori- gin minority students with limited English language skills and with students who have hearing impairments. This requirement may be satisfied by having interpreters available. E. PROMOTIONAL ACTIVITIES Recipients may not undertake promotional efforts (including activities of school offi- cials, counselors, and vocational staff) in a manner that creates or perpetuates stereo- types or limitations based on race, color, na- tional origin, sex or handicap. Examples of promotional efforts are career days, parents’ night, shop demonstrations, visitations by groups of prospective students and by rep- resentatives from business and industry. Ma- terials that are part of promotional efforts may not create or perpetuate stereotypes through text or illustration. To the extent possible they should portray males or fe- males, minorities or handicapped persons in programs and occupations in which these groups traditionally have not been rep- resented. If a recipient’s service area con- tains a community of national origin minor- ity persons with limited English language skills, promotional literature must be dis- tributed to that community in its language. VI. EQUAL OPPORTUNITY IN TH ains a community of national origin minor- ity persons with limited English language skills, promotional literature must be dis- tributed to that community in its language. VI. EQUAL OPPORTUNITY IN THE VOCATIONAL EDUCATION INSTRUCTIONAL SETTING A. ACCOMMODATIONS FOR HANDICAPPED STUDENTS Recipients must place secondary level handicapped students in the regular edu- cational environment of any vocational edu- cation program to the maximum extent ap- propriate to the needs of the student unless it can be demonstrated that the education of the handicapped person in the regular envi- ronment with the use of supplementary aids and services cannot be achieved satisfac- torily. Handicapped students may be placed in a program only after the recipient satis- fies the provisions of the Department’s Regu- lation, 45 CFR part 84, relating to evalua- tion, placement, and procedural safeguards. If a separate class or facility is identifiable as being for handicapped persons, the facil- ity, the programs, and the services must be comparable to the facilities, programs, and services offered to nonhandicapped students. B. STUDENT FINANCIAL ASSISTANCE Recipients may not award financial assist- ance i ams, and the services must be comparable to the facilities, programs, and services offered to nonhandicapped students. B. STUDENT FINANCIAL ASSISTANCE Recipients may not award financial assist- ance in the form of loans, grants, scholar- ships, special funds, subsidies, compensation for work, or prizes to vocational education students on the basis of race, color, national origin, sex, or handicap, except to overcome the effects of past discrimination. Recipients may administer sex restricted financial as- sistance where the assistance and restriction are established by will, trust, bequest, or any similar legal instrument, if the overall effect of all financial assistance awarded does not discriminate on the basis of sex. Materials and information used to notify students of opportunities for financial assistance may not contain language or examples that would lead applicants to believe the assistance is provided on a discriminatory basis. If a re- cipient’s service area contains a community of national origin minority persons with lim- ited English language skills, such informa- tion must be disseminated to that commu- nity in its language. C. HOUSING IN RESIDENTIAL POSTSECONDARY V unity of national origin minority persons with lim- ited English language skills, such informa- tion must be disseminated to that commu- nity in its language. C. HOUSING IN RESIDENTIAL POSTSECONDARY VOCATIONAL EDUCATION CENTERS Recipients must extend housing opportuni- ties without discrimination based on race, color, national origin, sex, or handicap. This obligation extends to recipients that provide on-campus housing and/or that have agree- ments with providers of off-campus housing. In particular, a recipient postsecondary vo- cational education program that provides on-campus or off-campus housing to its non- handicapped students must provide, at the same cost and under the same conditions, comparable convenient and accessible hous- ing to handicapped students. 445 Pt. 80, App. B 45 CFR Subtitle A (10–1–24 Edition) D. COMPARABLE FACILITIES Recipients must provide changing rooms, showers, and other facilities for students of one sex that are comparable to those pro- vided to students of the other sex. This may be accomplished by alternating use of the same facilities or by providing separate, comparable facilities. Such facilities must be adapted or modi- fied to the extent nec ts of the other sex. This may be accomplished by alternating use of the same facilities or by providing separate, comparable facilities. Such facilities must be adapted or modi- fied to the extent necessary to make the vo- cational education program readily acces- sible to handicapped persons. VII. WORK STUDY, COOPERATIVE VOCATIONAL EDUCATION, JOB PLACEMENT, AND APPREN- TICE TRAINING A. RESPONSIBILITIES IN COOPERATIVE VOCA- TIONAL EDUCATION PROGRAMS, WORK-STUDY PROGRAMS, AND JOB PLACEMENT PROGRAMS A recipient must insure that: (a) It does not discriminate against its students on the basis of race, color, national origin, sex, or handicap in making available opportunities in cooperative education, work study and job placement programs; and (b) students par- ticipating in cooperative education, work study and job placement programs are not discriminated against by employers or pro- spective employers on the basis of race, color, national origin, sex, or handicap in re- cruitment, hiring, placement, assignment to work tasks, hours of employment, levels of responsibility, and in pay. If a recipient enters into a written agree- ment for the referral or assignment of stu- dents to an emp placement, assignment to work tasks, hours of employment, levels of responsibility, and in pay. If a recipient enters into a written agree- ment for the referral or assignment of stu- dents to an employer, the agreement must contain an assurance from the employer that students will be accepted and assigned to jobs and otherwise treated without regard to race, color, national origin, sex, or handicap. Recipients may not honor any employer’s request for students who are free of handi- caps or for students of a particular race, color, national origin, or sex. In the event an employer or prospective employer is or has been subject to court action involving dis- crimination in employment, school officials should rely on the court’s findings if the de- cision resolves the issue of whether the em- ployer has engaged in unlawful discrimina- tion. B. APPRENTICE TRAINING PROGRAMS A recipient may not enter into any agree- ment for the provision or support of appren- tice training for students or union members with any labor union or other sponsor that discriminates against its members or appli- cants for membership on the basis of race, color, national origin, sex, or handicap. If a recipien union members with any labor union or other sponsor that discriminates against its members or appli- cants for membership on the basis of race, color, national origin, sex, or handicap. If a recipient enters into a written agreement with a labor union or other sponsor pro- viding for apprentice training, the agree- ment must contain an assurance from the union or other sponsor: (1) That it does not engage in such discrimination against its membership or applicants for membership; and (2) that apprentice training will be of- fered and conducted for its membership free of such discrimination. VIII. EMPLOYMENT OF FACULTY AND STAFF A. EMPLOYMENT GENERALLY Recipients may not engage in any employ- ment practice that discriminates against any employee or applicant for employment on the basis of sex or handicap. Recipients may not engage in any employment practice that discriminates on the basis of race, color, or national origin if such discrimina- tion tends to result in segregation, exclusion or other discrimination against students. B. RECRUITMENT Recipients may not limit their recruit- ment for employees to schools, communities, or companies disproportionately composed of persons of ion or other discrimination against students. B. RECRUITMENT Recipients may not limit their recruit- ment for employees to schools, communities, or companies disproportionately composed of persons of a particular race, color, national origin, sex, or handicap except for the pur- pose of overcoming the effects of past dis- crimination. Every source of faculty must be notified that the recipient does not discrimi- nate in employment on the basis of race, color, national origin, sex, or handicap. C. PATTERNS OF DISCRIMINATION Whenever the Office for Civil Rights finds that in light of the representation of pro- tected groups in the relevant labor market there is a significant underrepresentation or overrepresentation of protected group per- sons on the staff of a vocational education school or program, it will presume that the disproportion results from unlawful dis- crimination. This presumption can be over- come by proof that qualified persons of the particular race, color, national origin, or sex, or that qualified handicapped persons are not in fact available in the relevant labor market. D. SALARY POLICIES Recipients must establish and maintain faculty salary scales and policy ba gin, or sex, or that qualified handicapped persons are not in fact available in the relevant labor market. D. SALARY POLICIES Recipients must establish and maintain faculty salary scales and policy based upon the conditions and responsibilities of em- ployment, without regard to race, color, na- tional origin, sex or handicap. E. EMPLOYMENT OPPORTUNITIES FOR HANDICAPPED APPLICANTS Recipients must provide equal employment opportunities for teaching and administra- tive positions to handicapped applicants who can perform the essential functions of the position in question. Recipients must make reasonable accommodation for the physical or mental limitations of handicapped appli- cants who are otherwise qualified unless re- cipients can demonstrate that the accommo- dation would impose an undue hardship. 446 Dept. of Health and Human Services Pt. 81 F. THE EFFECTS OF PAST DISCRIMINATION Recipients must take steps to overcome the effects of past discrimination in the re- cruitment, hiring, and assignment of faculty. Such steps may include the recruitment or reassignment of qualified persons of a par- ticular race, national origin, or sex, or who are handicapped. G. STAFF OF STATE ADVISO and assignment of faculty. Such steps may include the recruitment or reassignment of qualified persons of a par- ticular race, national origin, or sex, or who are handicapped. G. STAFF OF STATE ADVISORY COUNCILS OF VOCATIONAL EDUCATION State Advisory Councils of Vocational Education are recipients of Federal financial assistance and therefore must comply with Section VIII of the Guidelines. H. EMPLOYMENT AT STATE OPERATED VOCA- TIONAL EDUCATION CENTERS THROUGH STATE CIVIL-SERVICE AUTHORITIES Where recruitment and hiring of staff for State operated vocational education centers is conducted by a State civil service employ- ment authority, the State education agency operating the program must insure that re- cruitment and hiring of staff for the voca- tional education center is conducted in ac- cordance with the requirements of these Guidelines. IX. PROPRIETARY VOCATIONAL EDUCATION SCHOOLS A. RECIPIENT RESPONSIBILITIES Proprietary vocational education schools that are recipients of Federal financial as- sistance through Federal student assistance programs or otherwise are subject to all of the requirements of the Department’s regu- lations and these Guidelines. B. ENFORCEMENT AUTHORIT l financial as- sistance through Federal student assistance programs or otherwise are subject to all of the requirements of the Department’s regu- lations and these Guidelines. B. ENFORCEMENT AUTHORITY Enforcement of the provisions of Title IX of the Education Amendments of 1972 and section 504 of the Rehabilitation Act of 1973 is the responsibility of the Department of Health and Human Services. However, au- thority to enforce Title VI of the Civil Rights Act of 1964 for proprietary vocational education schools has been delegated to the Veterans Administration. When the Office for Civil Rights receives a Title VI complaint alleging discrimination by a proprietary vocational education school it will forward the complaint to the Veterans Administration and cite the applicable re- quirements of the Department’s regulations and these Guidelines. The complainant will be notified of such action. [44 FR 17164, Mar. 21, 1979] PART 81—PRACTICE AND PROCE- DURE FOR HEARINGS UNDER PART 80 OF THIS TITLE Subpart A—General Information Sec. 81.1 Scope of rules. 81.2 Records to be public. 81.3 Use of gender and number. 81.4 Suspension of rules. Subpart B—Appearance and Practice 81.11 Appearance. 8 TITLE Subpart A—General Information Sec. 81.1 Scope of rules. 81.2 Records to be public. 81.3 Use of gender and number. 81.4 Suspension of rules. Subpart B—Appearance and Practice 81.11 Appearance. 81.12 Authority for representation. 81.13 Exclusion conduct. from hearing for mis- Subpart C—Parties 81.21 Parties; General Counsel deemed a party. 81.22 Amici curiae. 81.23 Complainants not parties. Subpart D—Form, Execution, Service and Filing of Documents 81.31 Form of documents to be filed. 81.32 Signature of documents. 81.33 Filing and service. 81.34 Service—how made. 81.35 Date of service. 81.36 Certificate of service. Subpart E—Time 81.41 Computation. 81.42 Extension of time or postponement. 81.43 Reduction of time to file documents. Subpart F—Proceedings Prior to Hearing 81.51 Notice of hearing or opportunity for hearing. 81.52 Answer to notice. 81.53 Amendment of notice or answer. 81.54 Request for hearing. 81.55 Consolidation. 81.56 Motions. 81.57 Responses to motions and petitions. 81.58 Disposition of motions and petitions. Subpart G—Responsibilities and Duties of Presiding Officer 81.61 Who presides. 81.62 Designation of hearing examiner. 81.63 Authority of presiding office s. 81.58 Disposition of motions and petitions. Subpart G—Responsibilities and Duties of Presiding Officer 81.61 Who presides. 81.62 Designation of hearing examiner. 81.63 Authority of presiding officer. Subpart H—Hearing Procedures 81.71 Statement of position and trial briefs. 81.72 Evidentiary purpose. 81.73 Testimony. 81.74 Exhibits. 447 § 81.1 45 CFR Subtitle A (10–1–24 Edition) 81.75 Affidavits. 81.76 Depositions. 81.77 Admissions as to facts and documents. 81.78 Evidence. 81.79 Cross-examination. 81.80 Unsponsored written material. 81.81 Objections. 81.82 Exceptions to rulings of presiding offi- cer unnecessary. 81.83 Official notice. 81.84 Public document items. 81.85 Offer of proof. 81.86 Appeals from ruling of presiding offi- cer. Subpart I—The Record 81.91 Official transcript. 81.92 Record for decision. Subpart J—Posthearing Procedures, Decisions 81.101 Posthearing briefs: Proposed findings and conclusions. 81.102 Decisions following hearing. 81.103 Exceptions to initial or recommended decisions. 81.104 Final decisions. 81.105 Oral argument to the reviewing au- thority. 81.106 Review by the Secretary. 81.107 Service on amici curiae. Subpart K—Judicial Standards of Practice commended decisions. 81.104 Final decisions. 81.105 Oral argument to the reviewing au- thority. 81.106 Review by the Secretary. 81.107 Service on amici curiae. Subpart K—Judicial Standards of Practice 81.111 Conduct. 81.112 Improper conduct. 81.113 Ex parte communications. 81.114 Expeditious treatment. 81.115 Matters not prohibited. 81.116 Filing of ex parte communications. Subpart L—Posttermination Proceedings 81.121 Posttermination proceedings. Subpart M—Definitions 81.131 Definitions. AUTHORITY: 5 U.S.C. 301 and 45 CFR 80.9(d). SOURCE: 32 FR 15156, Nov. 2, 1967, unless otherwise noted. Subpart A—General Information § 81.1 Scope of rules. The rules of procedure in this part supplement §§ 80.9 and 80.10 of this sub- title and govern the practice for hear- ings, decisions, and administrative re- view conducted by the Department of Health and Human Services, pursuant to Title VI of the Civil Rights Act of 1964 (section 602, 78 Stat. 252) and part 80 of this subtitle. § 81.2 Records to be public. All pleadings, correspondence, exhib- its, transcripts, of testimony, excep- tions, briefs, decisions, and other docu- ments filed in the docket in any pro- ceeding may be inspected and copi e public. All pleadings, correspondence, exhib- its, transcripts, of testimony, excep- tions, briefs, decisions, and other docu- ments filed in the docket in any pro- ceeding may be inspected and copied in the office of the Civil Rights hearing clerk. Inquiries may be made at the Central Information Center, Depart- ment of Health and Human Services, 330 Independence Avenue SW., Wash- ington, DC 20201. § 81.3 Use of gender and number. As used in this part, words importing the singular number may extend and be applied to several persons or things, and vice versa. Words importing the masculine gender may be applied to fe- males or organizations. § 81.4 Suspension of rules. Upon notice to all parties, the re- viewing authority or the presiding offi- cer, with respect to matters pending before them, may modify or waive any rule in this part upon determination that no party will be unduly prejudiced and the ends of justice will thereby be served. Subpart B—Appearance and Practice § 81.11 Appearance. A party may appear in person or by counsel and participate fully in any proceeding. A State agency or a cor- poration may appear by any of its offi- cers or by any employee it authorizes to a earance. A party may appear in person or by counsel and participate fully in any proceeding. A State agency or a cor- poration may appear by any of its offi- cers or by any employee it authorizes to appear on its behalf. Counsel must be members in good standing of the bar of a State, Territory, or possession of the United States or of the District of Columbia or the Commonwealth of Puerto Rico. § 81.12 Authority for representation. Any individual acting in a represent- ative capacity in any proceeding may be required to show his authority to act in such capacity. 448 Dept. of Health and Human Services § 81.32 § 81.13 Exclusion from hearing for mis- conduct. Disrespectful, disorderly, or con- tumacious language or contemptuous conduct, refusal to comply with direc- tions, or continued use of dilatory tac- tics by any person at any hearing be- fore a presiding officer shall constitute grounds for immediate exclusion of such person from the hearing by the presiding officer. Subpart C—Parties any party at that particular stage of the proceedings. (c) When all parties have completed their initial examination of a witness, any amicus curiae may request the pre- siding officer to propound ies any party at that particular stage of the proceedings. (c) When all parties have completed their initial examination of a witness, any amicus curiae may request the pre- siding officer to propound specific questions to the witness. The presiding officer, in his discretion, may grant any such request if he believes the pro- posed additional testimony may assist materially in elucidating factual mat- ters at issue between the parties and will not expand the issues. § 81.21 Parties; General Counsel § 81.23 Complainants not parties. deemed a party. (a) The term party shall include an applicant or recipient or other person to whom a notice of hearing or oppor- tunity for hearing has been mailed naming him a respondent. (b) The General Counsel of the De- partment of Health and Human Serv- ices shall be deemed a party to all pro- ceedings. § 81.22 Amici curiae. (a) Any interested person or organi- zation may file a petition to partici- pate in a proceeding as an amicus cu- riae. Such petition shall be filed prior to the prehearing conference, or if none is held, before the commencement of the hearing, unless the petitioner shows good cause for filing the petition later. The presiding tion shall be filed prior to the prehearing conference, or if none is held, before the commencement of the hearing, unless the petitioner shows good cause for filing the petition later. The presiding officer may grant the petition if he finds that the peti- tioner has a legitimate interest in the proceedings, that such participation will not unduly delay the outcome, and may contribute materially to the prop- er disposition thereof. An amicus cu- riae is not a party and may not intro- duce evidence at a hearing. (b) An amicus curiae may submit a statement of position to the presiding officer prior to the beginning of a hear- ing, and shall serve a copy on each party. The amicus curiae may submit a brief on each occasion a decision is to be made or a prior decision is subject to review. His brief shall be filed and served on each party within the time limits applicable to the party whose position he deems himself to support; or if he does not deem himself to sup- port the position of any party, within the longest time limit applicable to A person submitting a complaint pur- suant to § 80.7(b) of this title is not a party to the proceedings governed by this part, but may petition, af y party, within the longest time limit applicable to A person submitting a complaint pur- suant to § 80.7(b) of this title is not a party to the proceedings governed by this part, but may petition, after pro- ceedings are initiated, to become an amicus curiae. Subpart D—Form, Execution, Service and Filing of Documents § 81.31 Form of documents to be filed. Documents to be filed under the rules in this part shall be dated, the original signed in ink, shall show the docket de- scription and title of the proceeding, and shall show the title, if any, and ad- dress of the signatory. Copies need not be signed but the name of the person signing the original shall be repro- duced. Documents shall be legible and shall not be more than 81⁄2 inches wide and 12 inches long. § 81.32 Signature of documents. The signature of a party, authorized officer, employee or attorney con- stitutes a certificate that he has read the document, that to the best of his knowledge, information, and belief there is good ground to support it, and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this section, it may be stricken as sham and false and ood ground to support it, and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this section, it may be stricken as sham and false and the proceeding may proceed as though the document had not been filed. Similar action may be taken if scandalous or indecent matter is inserted. 449 § 81.33 45 CFR Subtitle A (10–1–24 Edition) § 81.33 Filing and service. All notices by a Department official, and all written motions, requests, peti- tions, memoranda, pleadings, excep- tions, briefs, decisions, and correspond- ence to a Department official from a party, or vice versa, relating to a pro- ceeding after its commencement shall be filed and served on all parties. Par- ties shall supply the original and two copies of documents submitted for fil- ing. Filings shall be made with the Civil Rights hearing clerk at the ad- dress stated in the notice of hearing or notice of opportunity for hearing, dur- ing regular business hours. Regular business hours are every Monday through Friday (legal holidays in the District of Columbia excepted) from 9 a.m. to 5:30 p.m., eastern standard or daylight saving time, whichever is ef- fective in t r business hours are every Monday through Friday (legal holidays in the District of Columbia excepted) from 9 a.m. to 5:30 p.m., eastern standard or daylight saving time, whichever is ef- fective in the District of Columbia at the time. Originals only on exhibits and transcripts of testimony need be filed. For requirements of service on amici curiae, see § 81.107. § 81.34 Service—how made. Service shall be made by personal de- livery of one copy to each person to be served or by mailing by first-class mail, properly addressed with postage prepaid. When a party or amicus has appeared by attorney or other rep- resentative, service upon such attorney or representative will be deemed serv- ice upon the party or amicus. Docu- ments served by mail preferably should be mailed in sufficient time to reach the addressee by the date on which the original is due to be filed, and should be air mailed if the addressee is more than 300 miles distant. § 81.35 Date of service. The date of service shall be the day when the matter is deposited in the U.S. mail or is delivered in person, ex- cept that the date of service of the ini- tial notice of hearing or opportunity for hearing shall be the date o be the day when the matter is deposited in the U.S. mail or is delivered in person, ex- cept that the date of service of the ini- tial notice of hearing or opportunity for hearing shall be the date of its de- livery, or of its attempted delivery if refused. § 81.36 Certificate of service. The original of every document filed and required to be served upon parties to a proceeding shall be endorsed with a certificate of service signed by the party making service or by his attor- ney or representative, stating that such service has been made, the date of service, and the manner of service, whether by mail or personal delivery. Subpart E—Time § 81.41 Computation. In computing any period of time under the rules in this part or in an order issued hereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed in the District of Columbia, in which event it includes the next following business day. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sun- days, and legal holidays shall be ex- cluded from the computation. § 81.42 Extension wing business day. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sun- days, and legal holidays shall be ex- cluded from the computation. § 81.42 Extension of time or postpone- ment. Requests for extension of time should be served on all parties and should set forth the reasons for the application. Applications may be granted upon a showing of good cause by the applicant. From the designation of a presiding of- ficer until the issuance of his decision such requests should be addressed to him. Answers to such requests are per- mitted, if made promptly. § 81.43 Reduction of time to file docu- ments. For good cause, the reviewing au- thority or the presiding officer, with respect to matters pending before them, may reduce any time limit pre- scribed by the rules in this part, except as provided by law or in part 80 of this title. Subpart F—Proceedings Prior to Hearing § 81.51 Notice of hearing or oppor- tunity for hearing. Proceedings are commenced by mail- ing a notice of hearing or opportunity for hearing to an affected applicant or recipient, pursuant to § 80.9 of this title. 450 Dept. of Health and Human Services § 81.58 § 81.52 Answer t ced by mail- ing a notice of hearing or opportunity for hearing to an affected applicant or recipient, pursuant to § 80.9 of this title. 450 Dept. of Health and Human Services § 81.58 § 81.52 Answer to notice. The respondent, applicant or recipi- ent may file an answer to the notice within 20 days after service thereof. Answers shall admit or deny specifi- cally and in detail each allegation of the notice, unless the respondent party is without knowledge, in which case his answer should so state, and the state- ment will be deemed a denial. Allega- tions of fact in the notice not denied or shall be controverted by answer deemed admitted. Matters alleged as affirmative defenses shall be separately stated and numbered. Failure of the re- spondent to file an answer within the 20-day period following service of the notice may be deemed an admission of all matters of fact recited in the no- tice. § 81.53 Amendment of notice or an- swer. The General Counsel may amend the notice of hearing or opportunity for hearing once as a matter of course be- fore an answer thereto is served, and each respondent may amend his answer once as a matter of course not later than 10 days before the date fix opportunity for hearing once as a matter of course be- fore an answer thereto is served, and each respondent may amend his answer once as a matter of course not later than 10 days before the date fixed for hearing but in no event later than 20 days from the date of service of his original answer. Otherwise a notice or answer may be amended only by leave of the presiding officer. A respondent shall file his answer to an amended no- tice within the time remaining for fil- ing the answer to the original notice or within 10 days after service of the amended notice, whichever period may be the longer, unless the presiding offi- cer otherwise orders. § 81.54 Request for hearing. Within 20 days after service of a no- tice of opportunity for hearing which does not fix a date for hearing the re- spondent, either in his answer or in a separate document, may request a hearing. Failure of the respondent to request a hearing shall be deemed a waiver of the right to a hearing and to constitute his consent to the making of a decision on the basis of such informa- tion as is available. § 81.55 Consolidation. The responsible Department official may provide for proceedings in the De- partment to be consent to the making of a decision on the basis of such informa- tion as is available. § 81.55 Consolidation. The responsible Department official may provide for proceedings in the De- partment to be joined or consolidated for hearing with proceedings in other Federal departments or agencies, by agreement with such other depart- ments or agencies. All parties to any proceeding consolidated subsequently to service of the notice of hearing or opportunity shall be promptly served with notice of such consolidation. for hearing § 81.56 Motions. Motions and petitions shall state the relief sought, the authority relied upon, and the facts alleged. If made be- fore or after the hearing, these matters shall be in writing. If made at the hear- ing, they may be stated orally; but the presiding officer may require that they be reduced to writing and filed and served on all parties in the same man- ner as a formal motion. Motions, an- swers, and replies shall be addressed to the presiding officer, if the case is pending before him. A repetitious mo- tion will not be entertained. § 81.57 Responses to motions and peti- tions. Within 8 days after a written motion or petition is served, or such ot if the case is pending before him. A repetitious mo- tion will not be entertained. § 81.57 Responses to motions and peti- tions. Within 8 days after a written motion or petition is served, or such other pe- riod as the reviewing authority or the presiding officer may fix, any party may file a response thereto. An imme- diate oral response may be made to an oral motion. § 81.58 Disposition of motions and peti- tions. The reviewing authority or the pre- siding officer may not sustain or grant a written motion or petition prior to expiration of the time for filing re- sponses thereto, but may overrule or deny such motion or petition without awaiting response: Provided, however, That prehearing conferences, hearings and decisions need not be delayed pend- ing disposition of motions or petitions. Oral motions and petitions may be ruled on immediately. Motions and pe- titions submitted to the reviewing au- thority or the presiding officer, respec- tively, and not disposed of in separate rulings or in their respective decisions will be deemed denied. Oral arguments shall not be held or written motions or petitions unless the presiding officer in his discretion expressly so orders. 451 § ings or in their respective decisions will be deemed denied. Oral arguments shall not be held or written motions or petitions unless the presiding officer in his discretion expressly so orders. 451 § 81.61 45 CFR Subtitle A (10–1–24 Edition) Subpart G—Responsibilities and Duties of Presiding Officer (f) Regulate the course of the hearing and conduct of counsel therein. (g) Examine witnesses and direct wit- § 81.61 Who presides. nesses to testify. A hearing examiner assigned under 5 U.S.C. 3105 or 3344 (formerly section 11 of the Administrative Procedure Act) shall preside over the taking of evi- dence in any hearing to which these rules of procedure apply. (h) Receive, rule on, exclude or limit evidence. (i) Fix the time for filing motions, petitions, briefs, or other items in mat- ters pending before him. (j) Issue initial or recommended deci- § 81.62 Designation of hearing exam- iner. The designation of the hearing exam- iner as presiding officer shall be in writing, and shall specify whether the examiner is to make an initial decision or to certify the entire record includ- ing his recommended findings and pro- posed decision to the reviewing author- ity, and may also fix the ti y whether the examiner is to make an initial decision or to certify the entire record includ- ing his recommended findings and pro- posed decision to the reviewing author- ity, and may also fix the time and place of hearing. A copy of such order shall be served on all parties. After service of an order designating a hear- ing examiner to preside, and until such examiner makes his decision, motions and petitions shall be submitted to him. In the case of the death, illness, disqualification or unavailability of the designated hearing examiner, an- other hearing examiner may be des- ignated to take his place. § 81.63 Authority of presiding officer. The presiding officer shall have the duty to conduct a fair hearing, to take all necessary action to avoid delay, and to maintain order. He shall have all powers necessary to these ends, includ- ing (but not limited to) the power to: (a) Arrange and issue notice of the date, time, and place of hearings, or, upon due notice to the parties, to change the date, time, and place of hearings previously set. (b) Hold conferences to settle, sim- plify, or fix the issues in a proceeding, or to consider other matters that may aid in the expeditious d ange the date, time, and place of hearings previously set. (b) Hold conferences to settle, sim- plify, or fix the issues in a proceeding, or to consider other matters that may aid in the expeditious disposition of the proceeding. (c) Require parties and amici curiae to state their position with respect to the various issues in the proceeding. (d) Administer oaths and affirma- tions. (e) Rule on motions, and other proce- dural items on matters pending before him. sions. (k) Take any action authorized by the rules in this part or in conformance with the provisions of 5 U.S.C. 551–559 (the Administrative Procedure Act). Subpart H—Hearing Procedures § 81.71 Statement of position and trial briefs. The presiding officer may require parties and amici curiae to file written statements of position prior to the be- ginning of a hearing. The presiding of- ficer may also require the parties to submit trial briefs. § 81.72 Evidentiary purpose. (a) The hearing is directed to receiv- ing factual evidence and expert opinion testimony related to the issues in the proceeding. Argument will not be re- ceived in evidence; rather it should be presented in statements, memoranda, or briefs, as determined ence and expert opinion testimony related to the issues in the proceeding. Argument will not be re- ceived in evidence; rather it should be presented in statements, memoranda, or briefs, as determined by the pre- siding officer. Brief opening state- ments, which shall be limited to state- ment of the party’s position and what he intends to prove, may be made at hearings. (b) Hearings for the reception of evi- dence will be held only in cases where issues of fact must be resolved in order to determine whether the respondent has failed to comply with one or more applicable requirements of part 80 of this title. In any case where it appears from the respondent’s answer to the notice of hearing or opportunity for hearing, from his failure timely to an- swer, or from his admissions or stipula- tions in the record, that there are no matters of material fact in dispute, the reviewing authority or presiding officer may enter an order so finding, vacating the hearing date if one has been set, and fixing the time for filing briefs 452 Dept. of Health and Human Services § 81.78 under § 81.101. Thereafter the pro- ceedings shall go to conclusion in ac- cordance with subpart J of this part. The nd fixing the time for filing briefs 452 Dept. of Health and Human Services § 81.78 under § 81.101. Thereafter the pro- ceedings shall go to conclusion in ac- cordance with subpart J of this part. The presiding officer may allow an ap- peal from such order in accordance with § 81.86. § 81.73 Testimony. Testimony shall be given orally under oath or affirmation by witnesses at the hearing; but the presiding offi- cer, in his discretion, may require or permit that the direct testimony of any witness be prepared in writing and served on all parties in advance of the hearing. Such testimony may be adopt- ed by the witness at the hearing, and filed as part of the record thereof. Un- less authorized by the presiding officer, witnesses will not be permitted to read prepared testimony into the record. Except as provided in §§ 81.75 and 81.76, witnesses shall be available at the hearing for cross-examination. § 81.74 Exhibits. Proposed exhibits shall be exchanged at the prehearing conference, or other- wise prior to the hearing if the pre- siding officer so requires. Proposed ex- hibits not so exchanged may be denied admission as evidence. The authen- ticity of all proposed exhibits ex- chan other- wise prior to the hearing if the pre- siding officer so requires. Proposed ex- hibits not so exchanged may be denied admission as evidence. The authen- ticity of all proposed exhibits ex- changed prior to hearing will be deemed admitted unless written objec- tion thereto is filed prior to the hear- ing or unless good cause is shown at the hearing for failure to file such writ- ten objection. § 81.75 Affidavits. An affidavit is; not inadmissible as such. Unless the presiding officer fixes other time periods affidavits shall be filed and served on the parties not later than 15 days prior to the hearing; and not less than 7 days prior to hearing a party may file and serve written objec- tion to any affidavit on the ground that he believes it necessary to test the truth of assertions therein at hearing. In such event the assertions objected to will not be received in evidence un- less the affiant is made available for cross-examination, or the presiding of- ficer determines that cross-examina- tion is not necessary for the full and true disclosure of facts referred to in such assertions. Notwithstanding any objection, however, affidavits may be considered in the case of any res oss-examina- tion is not necessary for the full and true disclosure of facts referred to in such assertions. Notwithstanding any objection, however, affidavits may be considered in the case of any respond- ent who waives a hearing. § 81.76 Depositions. Upon such terms as may be just, for the convenience of the parties or of the Department, the presiding officer may authorize or direct the testimony of any witness to be taken by deposition. § 81.77 Admissions as to facts and doc- uments. Not later than 15 days prior to the scheduled date of the hearing except for good cause shown, or prior to such earlier date as the presiding officer may order, any party may serve upon an opposing party a written request for the admission of the genuineness and authenticity of any relevant docu- ments described in and exhibited with the request, or for the admission of the truth of any relevant matters of fact stated in the request. Each of the mat- ters of which an admission is requested shall be deemed admitted, unless with- in a period designated in the request (not less than 10 days after service thereof, or within such further time as the presiding officer or the reviewing authority if no pres ed admitted, unless with- in a period designated in the request (not less than 10 days after service thereof, or within such further time as the presiding officer or the reviewing authority if no presiding officer has yet been designated may allow upon mo- tion and notice) the party to whom the request is directed serves upon the re- questing party a sworn statement ei- ther denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny such matters. Copies of requests for admission and answers thereto shall be served on all parties. Any ad- mission made by a party to such re- quest is only for the purposes of the pending proceeding, or any proceeding or action instituted for the enforce- ment of any order entered therein, and shall not constitute and admission by him for any other purpose or be used against him in any other proceeding or action. § 81.78 Evidence. Irrelevant, immaterial, unreliable, and unduly repetitious evidence will be excluded. 453 § 81.79 45 CFR Subtitle A (10–1–24 Edition) § 81.79 Cross-examination. A witness may be cross-examined on any matter material to the proceeding e, and unduly repetitious evidence will be excluded. 453 § 81.79 45 CFR Subtitle A (10–1–24 Edition) § 81.79 Cross-examination. A witness may be cross-examined on any matter material to the proceeding without regard to the scope of his di- rect examination. § 81.80 Unsponsored written material. Letters expressing views or urging action and other unsponsored written material regarding matters in issue in a hearing will be placed in the cor- respondence section of the docket of the proceeding. These data are not deemed part of the evidence or record in the hearing. § 81.81 Objections. Objections to evidence shall be time- ly and briefly state the ground relied upon. § 81.82 Exceptions to rulings of pre- siding officer unnecessary. Exceptions to rulings of the presiding officer are unnecessary. It is sufficient that a party, at the time the ruling of the presiding officer is sought, makes known the action which he desires the presiding officer to take, or his objec- tion to an action taken, and his grounds therefor. § 81.83 Official notice. Where official notice is taken or is to be taken of a material fact not appear- ing in the evidence of record, any party, on timely request, shall n, and his grounds therefor. § 81.83 Official notice. Where official notice is taken or is to be taken of a material fact not appear- ing in the evidence of record, any party, on timely request, shall be af- forded an opportunity to show the con- trary. § 81.84 Public document items. Whenever there is offered (in whole or in part) a public document, such as an official report, decision, opinion, or published scientific or economic statis- tical data issued by any of the execu- tive departments (or their subdivi- sions), legislative agencies or commit- tees, or administrative agencies of the Federal Government (including Gov- ernment-owned corporations), or a similar document issued by a State or its agencies, and such document (or part thereof) has been shown by the of- feror to be reasonably available to the public, such document need not be pro- duced or marked for identification, but may be offered for official notice, as a public document item by specifying the document or relevant part thereof. § 81.85 Offer of proof. An offer of proof made in connection with an objection taken to any ruling of the presiding officer rejecting or ex- cluding proffered oral testimony shall consi part thereof. § 81.85 Offer of proof. An offer of proof made in connection with an objection taken to any ruling of the presiding officer rejecting or ex- cluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony; and, if the excluded evidence consists of evidence in documentary or written form or of reference to documents or records, a copy of such evidence shall be marked for identification and shall accompany the record as the offer of proof. § 81.86 Appeals from ruling of pre- siding officer. Rulings of the presiding officer may not be appealed to the reviewing au- thority prior to his consideration of the entire proceeding except with the consent of the presiding officer and where he certifies on the record or in writing that the allowance of an inter- locutory appeal is clearly necessary to prevent exceptional delay, expense, or prejudice to any party, or substantial detriment to the public interest. If an appeal is allowed, any party may file a brief with the reviewing authority within such period as the presiding of- ficer directs. No oral argument will be heard unless the review ublic interest. If an appeal is allowed, any party may file a brief with the reviewing authority within such period as the presiding of- ficer directs. No oral argument will be heard unless the reviewing authority directs otherwise. At any time prior to submission of the proceeding to it for decisions, the reviewing authority may direct the presiding officer to certify any question or the entire record to it for decision. Where the entire record is so certified, the presiding officer shall recommend a decision. Subpart I—The Record § 81.91 Official transcript. The Department will designate the official reporter for all hearings. The official transcripts of testimony taken, together with any exhibits, briefs, or memoranda of law filed therewith shall be filed with the Department. Tran- scripts of testimony in hearings may be obtained from the official reporter by the parties and the public at rates not to exceed the maximum rates fixed 454 Dept. of Health and Human Services § 81.105 by the contract between the Depart- ment and the reporter. Upon notice to all parties, the presiding officer may authorize corrections to the transcript which involve matters of substance. § 81.92 Record the contract between the Depart- ment and the reporter. Upon notice to all parties, the presiding officer may authorize corrections to the transcript which involve matters of substance. § 81.92 Record for decision. The transcript of testimony, exhib- its, and all papers and requests filed in the proceedings, except the correspond- ence section of the docket, including rulings and any recommended or initial decision shall constitute the exclusive record for decision. Subpart J—Posthearing Procedures, Decisions § 81.101 Posthearing briefs: Proposed findings and conclusions. for (a) The presiding officer shall fix the filing posthearing briefs, time which may contain proposed findings of fact and conclusions of law, and, if per- mitted, reply briefs. (b) Briefs should include a summary of the evidence relied upon together with references to exhibit numbers and pages of the transcript, with citations of the authorities relied upon. § 81.102 Decisions following hearing. When the time for submission of posthearing briefs has expired, the pre- siding officer shall certify the entire record, including his recommended findings and proposed decision, to the responsible Department official; o bmission of posthearing briefs has expired, the pre- siding officer shall certify the entire record, including his recommended findings and proposed decision, to the responsible Department official; or if so authorized he shall make an initial decision. A copy of the recommended findings and proposed decision, or of the initial decision, shall be served upon all parties, and amici, if any. § 81.103 Exceptions to initial or rec- ommended decisions. Within 20 days after the mailing of an initial or recommended decision, any party may file exceptions to the decision, stating reasons therefor, with the reviewing authority. Any other party may file a response thereto with- in 30 days after the mailing of the deci- sion. Upon the filing of such excep- tions, the reviewing authority shall re- view the decision and issue its own de- cision thereon. § 81.104 Final decisions. (a) Where the hearing is conducted by a hearing examiner who makes an ini- tial decision, if no exceptions thereto are filed within the 20-day period speci- fied in § 81.103, such decision shall be- come the final decision of the Depart- ment, and shall constitute ‘‘final agen- cy action’’ within the meaning of 5 U.S.C. led within the 20-day period speci- fied in § 81.103, such decision shall be- come the final decision of the Depart- ment, and shall constitute ‘‘final agen- cy action’’ within the meaning of 5 U.S.C. 704 (formerly section 10(c) of the Administrative Procedure Act), subject to the provisions of § 81.106. (b) Where the hearing is conducted by a hearing examiner who makes a rec- ommended decision, or upon the filing of exceptions to a hearing examiner’s initial decision, the reviewing author- ity shall review the recommended or initial decision and shall issue its own decision thereon, which shall become the final decision of the Department, and shall constitute ‘‘final agency ac- tion’’ within the meaning of 5 U.S.C. 704 (formerly section 10(c) of the Ad- ministrative Procedure Act), subject to the provisions of § 81.106. (c) All final decisions shall be promptly served on all parties, and amici, if any. § 81.105 Oral argument to the review- ing authority. (a) If any party desires to argue a case orally on exceptions or replies to initial or rec- exceptions to an ommended decision, he shall make such request in writing. The reviewing authority may grant or deny such re- quests in it gue a case orally on exceptions or replies to initial or rec- exceptions to an ommended decision, he shall make such request in writing. The reviewing authority may grant or deny such re- quests in its discretion. If granted, it will serve notice of oral argument on all parties. The notice will set forth the order of presentation, the amount of time allotted, and the time and place for argument. The names of per- sons who will argue should be filed with the Department hearing clerk not later than 7 days before the date set for oral argument. (b) The purpose of oral argument is to emphasize and clarify the written argument in the briefs. Reading at length from the brief or other texts is not favored. Participants should con- fine their arguments to points of con- trolling importance and to points upon which exceptions have been filed. Con- solidations of appearances at oral argu- ment by parties taking the same side will permit the parties’ interests to be 455 § 81.106 45 CFR Subtitle A (10–1–24 Edition) presented more effectively in the time allotted. (c) Pamphlets, charts, and other written material may be presented at oral argument only if such material is limited to facts alread (10–1–24 Edition) presented more effectively in the time allotted. (c) Pamphlets, charts, and other written material may be presented at oral argument only if such material is limited to facts already in the record and is served on all parties and filed with the Department hearing clerk at least 7 days before the argument. § 81.106 Review by the Secretary. Within 20 days after an initial deci- sion becomes a final decision pursuant to § 81.104(a) or within 20 days of the mailing of a final decision referred to in § 81.104(b), as the case may be, a party may request the Secretary to re- view the final decision. The Secretary may grant or deny such request, in whole or in part, or serve notice of his intent to review the decision in whole or in part upon his own motion. If the Secretary grants the requested review, or if he serves notice of intent to re- view upon his own motion, each party to the decision shall have 20 days fol- lowing notice of the Secretary’s pro- posed action within which to file ex- ceptions to the decision and supporting briefs and memoranda, or briefs and memoranda in support of the decision. Failure of a party to request review under this paragraph shall not which to file ex- ceptions to the decision and supporting briefs and memoranda, or briefs and memoranda in support of the decision. Failure of a party to request review under this paragraph shall not be deemed a failure to exhaust adminis- trative remedies for the purpose of ob- taining judicial review. § 81.107 Service on amici curiae. All briefs, exceptions, memoranda, requests, and decisions referred to in this Subpart J shall be served upon amici curiae at the same times and in the same manner required for service on parties. Any written statements of position and trial briefs required of parties under § 81.71 shall be served on amici. Subpart K—Judicial Standards of Practice § 81.111 Conduct. Parties and their representatives are expected to conduct themselves with honor and dignity and observe judicial standards of practice and ethics in all proceedings. They should not indulge in offensive personalities, unseemly wrangling, or intemperate accusations or characterizations. A representative of any party whether or not a lawyer shall observe the traditional respon- sibilities of lawyers as officers of the court and use his best efforts to re- strain his client from improprieti resentative of any party whether or not a lawyer shall observe the traditional respon- sibilities of lawyers as officers of the court and use his best efforts to re- strain his client from improprieties in connection with a proceeding. § 81.112 Improper conduct. With respect to any proceeding it is improper for any interested person to attempt to sway the judgment of the reviewing authority by undertaking to bring pressure or influence to bear upon any officer having a responsi- bility for a decision in the proceeding, or his decisional staff. It is improper that such interested persons or any members of the Department’s staff or the presiding officer give statements to communications media, by paid adver- tisement or otherwise, designed to in- fluence the judgment of any officer having a responsibility for a decision in the proceeding, or his decisional staff. It is improper for any person to solicit communications to any such officer, or his decisional staff, other than proper communications by parties or amici curiae. § 81.113 Ex parte communications. involved Only persons employed by or as- signed to work with the reviewing au- thority who perform no investigative or prosecutin ications by parties or amici curiae. § 81.113 Ex parte communications. involved Only persons employed by or as- signed to work with the reviewing au- thority who perform no investigative or prosecuting function in connection with a proceeding shall communicate ex parte with the reviewing authority, or the presiding officer, or any em- ployee or person in the decisional process in such proceedings with respect to the merits of that or a factually related proceeding. The re- viewing authority, the presiding offi- cer, or any employee or person in- volved in the decisional process of a proceeding shall communicate ex parte with respect to the merits of that or a factually related proceeding only with persons employed by or assigned to work with them and who perform no investigative or prosecuting function in connection with the proceeding. 456 Dept. of Health and Human Services § 81.131 § 81.114 Expeditious treatment. Requests for expeditious treatment of matters pending before the respon- sible Department official or the pre- siding officer are deemed communica- tions on the merits, and are improper except when forwarded from parties to a proceeding and served upon all other parties - sible Department official or the pre- siding officer are deemed communica- tions on the merits, and are improper except when forwarded from parties to a proceeding and served upon all other parties thereto. Such communications should be in the form of a motion. § 81.115 Matters not prohibited. A request for information which merely inquires about the status of a proceeding without discussing issues or expressing points of view is not deemed an ex parte communication. Such re- quests should be directed to the Civil Rights hearing clerk. Communications with respect to minor procedural mat- ters or inquiries or emergency requests for extensions of time are not deemed ex parte communications prohibited by § 81.113. Where feasible, however, such communications should be by letter with copies to all parties. Ex parte communications between a respondent and the responsible Department offi- cial or the Secretary with respect to securing such respondent’s voluntary compliance with any requirement of part 80 of this title are not prohibited. § 81.116 Filing of ex parte communica- tions. A prohibited communication in writ- ing received by the Secretary, the re- viewing authority, or by the ment of part 80 of this title are not prohibited. § 81.116 Filing of ex parte communica- tions. A prohibited communication in writ- ing received by the Secretary, the re- viewing authority, or by the presiding officer, shall be made public by placing it in the correspondence file of the docket in the case and will not be con- sidered as part of the record for deci- sion. If the prohibited communication is received orally a memorandum set- ting forth its substance shall be made and filed in the correspondence section of the docket in the case. A person re- ferred to in such memorandum may file a comment for inclusion in the docket if he considers the memorandum to be incorrect. Subpart L—Posttermination Proceedings § 81.121 Posttermination proceedings. (a) An applicant or recipient ad- versely affected by the order termi- financial assistance nating, discontinuing, or refusing Fed- eral in con- sequence of proceedings pursuant to this title may request the responsible Department official for an order au- thorizing payment, or permitting re- sumption, of Federal financial assist- ance. Such request shall be in writing and shall affirmatively show that since entry of the order, it has l for an order au- thorizing payment, or permitting re- sumption, of Federal financial assist- ance. Such request shall be in writing and shall affirmatively show that since entry of the order, it has brought its program or activity into compliance with the requirements of the Act, and with the Regulation thereunder, and shall set forth specifically, and in de- tail, the steps which it has taken to achieve such compliance. If the respon- sible Department official denies such request the applicant or recipient shall be given an expeditious hearing if it so requests in writing and specifies why it believes the responsible Department of- ficial to have been in error. The re- quest for such a hearing shall be ad- dressed to the responsible Department official and shall be made within 30 days after the applicant or recipient is informed that the responsible Depart- ment official has refused to authorize payment or permit resumption of Fed- eral financial assistance. (b) In the event that a hearing shall be requested pursuant to paragraph (a) of this section, the hearing procedures established by this part shall be appli- cable to the proceedings, except as oth- erwise provided in this s hearing shall be requested pursuant to paragraph (a) of this section, the hearing procedures established by this part shall be appli- cable to the proceedings, except as oth- erwise provided in this section. Subpart M—Definitions § 81.131 Definitions. The definitions contained in § 80.13 of this subtitle apply to this part, unless the context otherwise requires, and the term reviewing authority as used herein includes the Secretary of Health and Human Services, with respect to action by that official under § 81.106. Transition provisions: (a) The amend- ments herein shall become effective upon publication in the FEDERAL REG- ISTER. (b) These rules shall apply to any proceeding or part thereof to which part 80 of this title as amended effec- tive October 19, 1967 (published in the FEDERAL REGISTER for October 19, 1967), and as the same may be hereafter amended, applies. In the case of any proceeding or part thereof governed by 457 Pt. 83 45 CFR Subtitle A (10–1–24 Edition) the provisions of part 80 as that part existed prior to such amendment, and rules in this part 81 shall apply as if these amendments were not in effect. PART 83—REGULATION FOR THE ADMINISTRATION EN- FORCEMENT OF S s of part 80 as that part existed prior to such amendment, and rules in this part 81 shall apply as if these amendments were not in effect. PART 83—REGULATION FOR THE ADMINISTRATION EN- FORCEMENT OF SECTIONS 799A AND 845 OF THE PUBLIC HEALTH SERVICE ACT AND Subpart A—Purposes; Definitions; Coverage Sec. 83.1 Purposes. 83.2 Definitions. 83.3 Remedial and affirmative actions. 83.4 Coverage. 83.5 Effect of title IX of the Education Amendments of 1972. [Reserved] 83.6–83.9 Subpart B—Discrimination in Admissions Prohibited 83.10 General obligations. 83.11 Discriminatory acts prohibited. 83.12 Recruitment. 83.13 State law and licensure requirements. 83.14 Development and dissemination of nondiscrimination policy. 83.15 Designation by entity of responsible employee and adoption of grievance pro- cedures. 83.16–83.19 [Reserved] Subpart C—Procedures [Interim] 83.20 Interim procedures. AUTHORITY: Sec. 215(b), Public Health Serv- ice Act (42 U.S.C. 216(b)). its training programs, and (2) to imple- ment the policy of the Secretary that no Federal support will be extended under those titles to any other entity unless that entity submits to the Sec- retary an assurance satisfactory to the Secret - ment the policy of the Secretary that no Federal support will be extended under those titles to any other entity unless that entity submits to the Sec- retary an assurance satisfactory to the Secretary that it will not discriminate on the basis of sex in the admission of individuals to its training programs. (b) The objective of this part is to abolish use of sex as a criterion in the admission of individuals to all training programs operated by an entity which receives support under title VII or VIII of the Act, and thereby to foster max- imum use of all available human re- sources in meeting the Nation’s needs for qualified health personnel. § 83.2 Definitions. As used in this part the term— (a) Act means the Public Health Serv- ice Act. (b) Administrative law judge means a person appointed by the Reviewing Au- thority to preside over a hearing held under this part. commitment (c) Assurance clause means a clause in an invitation for a contract offer extended by the Federal Government under title VII or VIII of the Act which, when executed by an en- tity as part of such offer, becomes, upon acceptance of such offer by the Federal Government, a contractual ob- ligation of such en nt under title VII or VIII of the Act which, when executed by an en- tity as part of such offer, becomes, upon acceptance of such offer by the Federal Government, a contractual ob- ligation of such entity to comply with its assurance submitted to the Director under this part. (d) Department means the Department SOURCE: 40 FR 28573, July 7, 1975, unless of Health and Human Services. otherwise noted. Subpart A—Purposes; Definitions; Coverage § 83.1 Purposes. (a) The purposes of this part are (1) to effectuate the provisions of sections 799A and 845 of the Public Health Serv- ice Act, which forbid the extension of Federal support under title VII or VIII of that Act to any entity of the types described in those sections unless that entity submits to the Secretary of Health and Human Services an assur- ance satisfactory to the Secretary that it will not discriminate on the basis of sex in the admission of individuals to (e) Director means the Director of the Office for Civil Rights of the Depart- ment. (f) Entity means (1) a school of medi- cine, school of dentistry, school of os- teopathy, school of pharmacy, school of optometry, school of podiatry, school of veterinary medicine, or sc epart- ment. (f) Entity means (1) a school of medi- cine, school of dentistry, school of os- teopathy, school of pharmacy, school of optometry, school of podiatry, school of veterinary medicine, or school of public health, as defined by section 724 of the Act; (2) A school of nursing, as defined by section 843 of the Act; (3) A school or college of a training center for an allied health profession, as defined by section 795 of the Act, or of another institution of undergraduate education which school or college can provide a training program; 458 Dept. of Health and Human Services § 83.4 (4) An affiliated hospital, as defined by section 724 or 795 of the Act; and (5) Any other institution, organiza- tion, consortium, or agency which is eligible to receive Federal support. (g) Federal support means assistance extended after November 18, 1971, under title VII or VIII of the Act to an entity by means of a grant to, a contract with, or a loan guarantee or interest subsidy payment made on behalf of, such entity. (h) Federally supported entity means an entity which receives Federal sup- port. (i) Reviewing authority means that component of the Department to which the Secretary delegates ehalf of, such entity. (h) Federally supported entity means an entity which receives Federal sup- port. (i) Reviewing authority means that component of the Department to which the Secretary delegates authority to review the decision of an administra- tive law judge in a proceeding arising under this part. (j) Secretary means the Secretary of Health and Human Services. (k) Training program means a pro- gram of training described by section 724(4) of the Act, a program of edu- cation described by, or specified by reg- ulations pursuant to, section 795(1) of the Act, a program of education de- scribed by section 843(c), 843(d), or 843(e) of the Act, and a program leading to any license or certification requisite to the practice of a health profession for which a degree specified in any such section is granted. § 83.3 Remedial and affirmative ac- tions. (a) Remedial action. If the Director finds that an entity has discriminated against persons on the basis of sex in any of its training programs, such enti- ty shall take such remedial action as the Director deems necessary to over- come the effects of such discrimina- tion. (b) Affirmative action. In the absence of a finding of discrimi grams, such enti- ty shall take such remedial action as the Director deems necessary to over- come the effects of such discrimina- tion. (b) Affirmative action. In the absence of a finding of discrimination on the basis of sex in a training program, an entity may take affirmative action to overcome the effects of conditions which resulted in limited participation therein by persons of a particular sex. § 83.4 Coverage. (a) If an entity receives Federal sup- port for any of its training programs, all of its training programs thereby be- come subject to this part. (b) The obligation imposed by this part on a federally supported entity not to discriminate on the basis of sex in the admission of individuals to a training program includes not only the obligation not to discriminate on such basis in the selection of individuals for such program, but also the obligation not to discriminate on such basis against individuals after their selec- tion for such program. (c) The obligation imposed by this part on a federally supported entity not to discriminate on the basis of sex against an individual who is an appli- cant for, or is enrolled in, a training program is applicable to the same ex- y this part on a federally supported entity not to discriminate on the basis of sex against an individual who is an appli- cant for, or is enrolled in, a training program is applicable to the same ex- tent to the actions of such entity with respect to an applicant for, or a stu- dent enrolled in, an undergraduate pro- gram of education of such entity if in- dividuals enrolled in such program must complete all or a part of such programs to be eligible for admission to an undergraduate training program of such entity. (d) An entity shall not discriminate on the basis of sex in violation of this part for as long as such entity receives or benefits from Federal support. For purposes of the preceding sentence, an entity shall be deemed to continue to receive or benefit from Federal support for as long as it retains ownership, pos- session, or use of either real or per- sonal property and which was acquired in whole or in part with Federal sup- port. If an entity receives value for property which was acquired in whole or in part with Federal support and such value is applied toward the acqui- sition of other property, such entity shall be deemed to continue to receive or benefit from suc which was acquired in whole or in part with Federal support and such value is applied toward the acqui- sition of other property, such entity shall be deemed to continue to receive or benefit from such support for as long as such entity retains ownership, use, or possession of such other property. (e) An entity shall not transfer prop- erty which was acquired, constructed, altered, repaired, expanded, or ren- ovated in whole or in part with Federal support unless the agency, organiza- tion, or individual to whom such prop- erty is to be transferred has submitted to the Director, and he or she has found satisfactory, an assurance of compli- ance with this part. The preceding sen- tence shall not apply with respect to any real or personal property for which payments have been recaptured by the 459 § 83.5 45 CFR Subtitle A (10–1–24 Edition) United States under title VII or VIII of the Act, with respect to any other property for which the transferring en- tity has refunded to the Federal Gov- ernment the Federal share of the fair market value of such property, or with respect to any personal property which has only scrap value to both the entity and the agency, organization or indi- vi ov- ernment the Federal share of the fair market value of such property, or with respect to any personal property which has only scrap value to both the entity and the agency, organization or indi- vidual to which the property is to be transferred. § 83.5 Effect of title IX of the Edu- cation Amendments of 1972. The obligations imposed by this part are independent of obligations imposed by or pursuant to title IX of the Edu- cation Amendments of 1972. §§ 83.6–83.9 [Reserved] Subpart B—Discrimination in Admissions Prohibited § 83.10 General obligations. (a) Eligibility for support. No entity will be provided Federal support unless such entity has furnished the Director assurances satisfactory to him or her that it will not discriminate on the basis of sex, in violation of this part, in the admission of individuals to each of its training programs. (b) Eliminating the effects of discrimi- nation. An assurance of compliance with this part will not be satisfactory to the Director if the entity submitting such assurance fails to take whatever remedial action in accordance with § 83.3(a) that is necessary for such enti- ty to eliminate the effects of any dis- crimination on the basis of tity submitting such assurance fails to take whatever remedial action in accordance with § 83.3(a) that is necessary for such enti- ty to eliminate the effects of any dis- crimination on the basis of sex in the admission of individuals to its training programs that such entity practiced prior to the submission to the Director of such assurance, or practices at the time of or subsequent to such submis- sion. The Director may require such entity, as a condition to determining that its assurance is, or remains, satis- factory, to take specific actions, or to submit to him or her specific informa- tion, bearing upon compliance with this part. § 83.11 Discriminatory acts prohibited. (a) General. No person shall, on the basis of sex, be excluded from partici- pation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, re- search, occupational training, or other training program or activity operated by an entity. (b) Discrimination in selection. In de- termining whether an individual satis- fies any enrollment, eligibility, or other condition for selection for a training program, a federally supported entity shall not: (1) On the basis of s . In de- termining whether an individual satis- fies any enrollment, eligibility, or other condition for selection for a training program, a federally supported entity shall not: (1) On the basis of sex, given pref- erence to one individual over another by ranking applicants on such basis, or otherwise give such preference; or (2) Apply numerical limitations upon the number or proportion of persons of either sex who may be admitted; or (3) Otherwise treat one individual dif- ferently from another on the basis of sex. (c) Testing. A federally supported en- tity shall not administer or operate any test or use any criterion for admis- sion which has a disproportionately ad- verse effect on persons on the basis of sex unless the use of such test or cri- terion is shown validly to predict suc- cess in the training program or activ- ity in question and alternative tests or criteria which do not have such a dis- proportionately adverse effect are shown to be unavailable. (d) Prohibitions relating to marital or parental status. In determining whether a person satisfies any policy or cri- terion for admission, or in making any offer of admission, in providing finan- cial aid or any other be ting to marital or parental status. In determining whether a person satisfies any policy or cri- terion for admission, or in making any offer of admission, in providing finan- cial aid or any other benefit, an entity to which this subpart applies: (1) Shall not apply any rule con- cerning the actual or potential paren- tal, family, or marital status of a stu- dent or applicant which treats persons differently on the basis of sex; (2) Shall not discriminate against or exclude any person on the basis of pregnancy, childbirth, termination of pregnancy or recovery therefrom, or establish or follow any rule or practice which so discriminates or excludes; (3) Shall treat pregnancy, childbirth, termination of pregnancy and any tem- porary disabilities related to or result- ing from pregnancy, childbirth, termi- nation of pregnancy or recovery there- from in the same manner and under the same policies as any other temporary disability or physical condition; and 460 Dept. of Health and Human Services § 83.11 (4) Shall not make pre-admission in- quiry as to the marital status of an ap- plicant for admission, including wheth- er such applicant is ‘‘Miss,’’ or ‘‘Mrs.’’ A recipient may make pre rvices § 83.11 (4) Shall not make pre-admission in- quiry as to the marital status of an ap- plicant for admission, including wheth- er such applicant is ‘‘Miss,’’ or ‘‘Mrs.’’ A recipient may make pre-admission inquiry as to the sex of an applicant for admission, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with dis- crimination prohibited by this part. (e) Preference to students from other in- stitutions in admission. An entity shall not give preference to applicants for admission, on the basis of attendance at any educational institution or other school or entity which admits as stu- dents only or predominantly members of one sex, if the giving of such pref- erence has the effect of discriminating on the basis of sex in violation of this part. (f) Discrimination in the provision of benefits and services—(1) General. Except as otherwise provided in this part in providing financial aid or any other benefit, or in providing any service, to an applicant for a training program or to a student enrolled in such program, no federally supported entity shall on the basis of sex: (i) Treat one individ er benefit, or in providing any service, to an applicant for a training program or to a student enrolled in such program, no federally supported entity shall on the basis of sex: (i) Treat one individual differently from another in determining whether such individual satisfies any require- ment or condition for the provision of such benefit of service; (ii) Provide a different benefit or service or provide a benefit or a service in a different manner; (iii) Deny an individual any such ben- efit or service; eign wills, trusts, bequests, or similar legal instruments or by acts of a for- eign government which requires that awards be made to members of a par- ticular sex specified therein: Provided, That the overall effect of the award of such sex-restricted scholarships, fel- lowships, and other forms of financial assistance does not discriminate on the basis of sex. (ii) To ensure nondiscriminatory awards of assistance as required in paragraph (f)(2)(i) of this section, re- cipients shall develop and use proce- dures under which: (A) Students are selected for award of financial assistance on the basis of non-discriminatory criteria and not on the basis of availability of funds re- st l develop and use proce- dures under which: (A) Students are selected for award of financial assistance on the basis of non-discriminatory criteria and not on the basis of availability of funds re- stricted to members of a particular sex; (B) An appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to each student selected under paragraph (f)(2)(ii) (A) of this section; and (C) No student is denied the award for which he or she was selected under paragraph (f)(2)(ii)(A) of this section because of the absence of a scholarship, fellowship, or other form of financial assistance designated for a member of that student’s sex. (g) Housing. (1) An entity shall not, on the basis of sex, apply different rules or regulations, impose different fees or requirements, or offer different services or benefits related to housing, except as provided in this subsection (including housing provided only to married students). (2) An entity may provide separate (iv) Subject an individual to separate housing on the basis of sex. treatment or rules of behavior; (v) Discriminate against any indi- vidual by assisting an agency, organi- zation, or individual in e (iv) Subject an individual to separate housing on the basis of sex. treatment or rules of behavior; (v) Discriminate against any indi- vidual by assisting an agency, organi- zation, or individual in providing, in a manner which discriminates on the basis of sex, a benefit or service to ap- plicants for or students enrolled in a training program; or (vi) Otherwise limit any individual in the enjoyment of any right, privilege, advantage, or opportunity. (2) Financial aid established by certain legal instruments. (i) A recipient may administer or assist in the administra- tion of scholarships, fellowships, or other forms of financial assistance es- tablished pursuant to domestic or for- (3) Housing provided by an entity to students of one sex, when compared to that provided to students of the other sex, shall be as a whole: (i) Propor- tionate in quantity to the number of students of that sex applying for such housing; and (ii) comparable in quality and cost to the student. (4) An entity shall not on the basis of sex, administer different policies or practices concerning occupancy by its students of housing other than that provided by such recipient. (5) An entity which, through sol y shall not on the basis of sex, administer different policies or practices concerning occupancy by its students of housing other than that provided by such recipient. (5) An entity which, through solicita- tion, listing, approval of housing, or otherwise, assists any agency, organi- zation, or person in making housing 461 § 83.12 45 CFR Subtitle A (10–1–24 Edition) available to any of its students, shall take reasonable action to ensure that such housing is provided to students of one sex, when compared to that pro- vided to students of the other sex, is as a whole: (i) Proportionate in quantity and (ii) comparable in quality and cost to the student. An entity may render such assistance to any agency, organi- zation, or person which provides all or part of such housing to students only of one sex. (h) Inter-institutional programs. If a federally supported entity aids partici- pation, by any applicant for or student enrolled in any of its training pro- grams, in any program or activity of another organization or agency, such entity shall: (1) Develop and implement a proce- dure to assure itself that such organi- zation or agency takes no action with respect to such applicants or st of another organization or agency, such entity shall: (1) Develop and implement a proce- dure to assure itself that such organi- zation or agency takes no action with respect to such applicants or students which this part would prohibit such en- tity from taking; and (2) Not aid such participation if such organization or agency takes such ac- tion. (i) Discrimination in employment pro- hibited. A federally supported entity shall not discriminate on the basis of sex in employment practices relating to its professional and other staff who work directly with applicants for or students enrolled in any of its training programs. The provisions of this sub- part apply to: (1) Recruitment, advertising, and the process of application for employment; (2) Hiring, upgrading, promotion, consideration for and award of tenure, demotion, termi- nation, right of return from layoff, and rehiring; transfer, layoff, (3) Rates of pay or any other form of compensation, and changes in com- pensation; (4) Job assignments, classifications and structure, including position de- scriptions, lines of progression, and se- niority lists; (5) The terms of any collective bar- gaining agreement; (6) Granting and r b assignments, classifications and structure, including position de- scriptions, lines of progression, and se- niority lists; (5) The terms of any collective bar- gaining agreement; (6) Granting and return from leaves of absence, pregnancy leave, leave for persons of either sex to care for chil- dren or dependents, or any other leave; (7) Fringe benefits available by vir- tue of employment, whether or not ad- ministered by the recipient; (8) Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, selection for tuition for sabbaticals and leaves of absence to pursue training; assistance, selection (9) Employer-sponsored activities, in- cluding social or recreational pro- grams; and (10) Any other term, condition, or privilege of employment. § 83.12 Recruitment. (a) Comparable recruitment. A feder- ally supported entity shall, with re- spect to each of its training programs, make comparable efforts to recruit members of each sex in the geographic area from which such entity attracts its students. A federally supported en- tity shall not recruit for any of its training programs exclusively or pri- marily it members of each sex in the geographic area from which such entity attracts its students. A federally supported en- tity shall not recruit for any of its training programs exclusively or pri- marily at organizations or agencies which admit as members or students, or which provide a service for, only members of one sex unless such entity can demonstrate that such action is part of a recruitment program which does not have the effect of discrimi- nating on the basis of sex in selection for a training program. (b) Recruitment practices. A federally supported entity shall: (1) Prominently include a statement of its policy of nondiscrimination on the basis of sex in each announcement, bulletin, catalogue, or application form which describes the training program of such entity or is used in connection with the recruitment of employees who will work directly with applicants for or students enrolled in a training pro- gram; (2) Distribute without discrimination on the basis of sex any announcements, bulletins, catalogues, or other mate- rials used in connection with the re- cruitment of students for a training program or employees who will work directly with applicants for such pro- gram cements, bulletins, catalogues, or other mate- rials used in connection with the re- cruitment of students for a training program or employees who will work directly with applicants for such pro- gram or such students; and (3) Apprise each of its recruitment representatives of its policy of non- discrimination on the basis of sex, and 462 Dept. of Health and Human Services Pt. 84 require such representatives to adhere to such policy. § 83.13 State law and licensure re- quirements. The obligation of an entity to comply with this part is not obviated or allevi- ated by any State or local law which would render an applicant for or stu- dent enrolled in a training program in- eligible on the basis of sex for any li- cense or certificate requisite to the practice of the health profession for which such applicant seeks, or student pursues, training. § 83.14 Development and dissemina- tion of nondiscrimination policy. (a) A federally supported entity shall develop a written policy statement of nondiscrimination on the basis of sex, in accordance with this part, and shall implement specific and continuing steps to publicize such statement to applicants for admission or employ- ment, studen f nondiscrimination on the basis of sex, in accordance with this part, and shall implement specific and continuing steps to publicize such statement to applicants for admission or employ- ment, students, employees, and sources of referral of applicants for admission or employment. (b) Each federally supported entity shall prominently include a statement of the policy described in paragraph (a) of this section in each announcement, bulletin, catalogue, and application form which it makes available to any person of a type described in paragraph (a) of this section, or which is other- wise used in connection with the re- cruitment of students or employees who work directly with students and applicants for admission. (c) A federally supported entity shall not use or distribute a publication of the type described in this section which suggests, by text or illustration, that such recipient treats applicants, students, or employees differently on the basis of sex except as such treat- ment is permitted by this part. § 83.15 Designation by entity of re- sponsible employee and adoption of grievance procedures. (a) Designation of responsible employee. A federally supported entity shall des- permitted by this part. § 83.15 Designation by entity of re- sponsible employee and adoption of grievance procedures. (a) Designation of responsible employee. A federally supported entity shall des- ignate at least one employee to coordi- nate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to such entity alleging its noncompliance with this part or alleging any action which would be prohibited by this part. The entity shall notify all of its students and employees who work directly with students and applicants for admission of the name, office address and tele- phone number of the employee or em- ployees appointed pursuant to this paragraph. (b) Complaint procedure of entity. A federally supported entity shall adopt and publish grievance procedures pro- viding for prompt and equitable resolu- tion of student and employee com- plaints alleging any action which would be prohibited by this part. Such procedures shall be in writing and available to all present and prospective students and employees. §§ 83.16–83.19 [Reserved] Subpart C—Procedures [Interim] § 83.20 Interim procedures. For the purpo h procedures shall be in writing and available to all present and prospective students and employees. §§ 83.16–83.19 [Reserved] Subpart C—Procedures [Interim] § 83.20 Interim procedures. For the purposes of implementing this part during the period between its effective date and the final issuance by the Department of a consolidated pro- cedural regulation applicable to sec- tions 704 and 845 of the Act and other civil rights authorities administered by the Department, the procedural provi- sions applicable to title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference. These procedures may be found at 45 CFR 80.6 through 80.11 and 45 CFR part 81. PART 84—NONDISCRIMATION ON THE BASIS OF DISABILITY IN PRO- GRAMS OR ACTIVITIES RECEIV- ING FEDERAL FINANCIAL ASSIST- ANCE Subpart A—General Provisions Sec. 84.1 Purpose and broad coverage. 84.2 Application. 84.3 Relationship to other laws. 84.4 Disability. 84.5 Assurances required. 84.6 Remedial action, voluntary action, and self-evaluation. 84.7 Designation of responsible employee and adoption of grievance procedures. 84.8 Notice. 463 § 84.1 45 CFR Subtitle A (10–1–24 Edition) 84.9 Administrative requi untary action, and self-evaluation. 84.7 Designation of responsible employee and adoption of grievance procedures. 84.8 Notice. 463 § 84.1 45 CFR Subtitle A (10–1–24 Edition) 84.9 Administrative requirements for small recipients. 84.10 Definitions. Subpart B—Employment Practices 84.16 Discrimination prohibited. [Reserved] 84.17–84.20 Subpart C—Accessibility 84.21 Discrimination prohibited. 84.22 Existing facilities. 84.23 New construction and alterations. 84.24–84.30 [Reserved] Subpart D—Childcare, Preschool, Elemen- tary and Secondary, and Adult Edu- cation 84.31 Application of this subpart. 84.32–84.37 [Reserved] 84.38 Childcare, preschool, elementary and secondary, and adult education. 84.39–84.40 [Reserved] Subpart E—Postsecondary Education 84.41 Application of this subpart. 84.42 Admissions and recruitment. 84.43 Treatment of students; general. 84.44 Academic adjustments. 84.45 Housing. 84.46 Financial and employment assistance to students. 84.47 Nonacademic services. 84.48–84.50 [Reserved] Subpart F—Health, Welfare, and Social Services 84.51 Application of this subpart. 84.52 Health, welfare, and other social serv- ices. 84.53 Individuals with substance and alcohol use disord [Reserved] Subpart F—Health, Welfare, and Social Services 84.51 Application of this subpart. 84.52 Health, welfare, and other social serv- ices. 84.53 Individuals with substance and alcohol use disorders. 84.54 Education of institutionalized persons. 84.55 Procedures relating to health care for infants with disabilities. 84.56 Medical treatment. 84.57 Value assessment methods. 84.58–84.59 [Reserved] 84.60 Children, parents, caregivers, foster parents, and prospective parents in the child welfare system. Subpart H—Communications 84.77 General. 84.78 Telecommunications. 84.79 Telephone emergency services. 84.80 Information and signage. 84.81 Duties. Subpart I—Web, Mobile, and Kiosk Accessibility 84.82 Application. 84.83 Accessibility of kiosks. 84.84 Requirements for web and mobile ac- cessibility. 84.85 Exceptions. 84.86 Conforming alternate versions. 84.87 Equivalent facilitation. 84.88 Duties. 84.89 Effect of noncompliance that has a minimal impact on access. Subpart J—Accessible Medical Equipment 84.90 Application. 84.91 Requirements for medical diagnostic equipment. 84.92 Newly purchased, leased, or otherwise acquired medical diagnostic equipment. 84.93 Existing medical diagnost cal Equipment 84.90 Application. 84.91 Requirements for medical diagnostic equipment. 84.92 Newly purchased, leased, or otherwise acquired medical diagnostic equipment. 84.93 Existing medical diagnostic equip- ment. 84.94 Qualified staff. 84.95–84.97 [Reserved] Subpart K—Procedures 84.98 Procedures. APPENDIX A TO PART 84—ANALYSIS OF FINAL REGULATION APPENDIX B TO PART 84—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] APPENDIX C TO PART 84—GUIDELINES RELAT- ING TO HEALTH CARE FOR HANDICAPPED INFANTS AUTHORITY: 29 U.S.C. 794. Subpart G also issued under 21 U.S.C. 1174; 42 U.S.C. 4581. SOURCE: 42 FR 22677, May 4, 1977, unless otherwise noted. Subpart G—General Requirements Subpart A—General Provisions 84.68 General prohibitions against discrimi- nation. Illegal use of drugs. 84.69 84.70 Maintenance of accessible features. 84.71 Retaliation or coercion. 84.72 Personal devices and services. 84.73 Service animals. 84.74 Mobility devices. 84.75 Direct threat. 84.76 Integration. § 84.1 Purpose and broad coverage. (a) Purpose. The purpose of this part is to implement s devices and services. 84.73 Service animals. 84.74 Mobility devices. 84.75 Direct threat. 84.76 Integration. § 84.1 Purpose and broad coverage. (a) Purpose. The purpose of this part is to implement section 504 of the Re- habilitation Act of 1973, as amended, which prohibits discrimination on the basis of disability in any program or activity receiving Federal financial as- sistance. 464 Dept. of Health and Human Services § 84.4 (b) Broad coverage. The definition of ‘‘disability’’ in this part shall be con- strued broadly in favor of expansive coverage to the maximum extent per- mitted by the terms of section 504. The primary object of attention in cases brought under section 504 should be whether entities receiving Federal fi- nancial assistance have complied with their obligations and whether discrimi- nation has occurred, not whether the individual meets the definition of ‘‘disability.’’ The question of whether an individual meets the definition of ‘‘disability’’ under this part should not demand extensive analysis. [89 FR 40179, May 9, 2024] § 84.2 Application. (a) This part applies to each recipient of Federal financial assistance from the Department and to the recipient’s pro uld not demand extensive analysis. [89 FR 40179, May 9, 2024] § 84.2 Application. (a) This part applies to each recipient of Federal financial assistance from the Department and to the recipient’s programs or activities that involve in- dividuals with disabilities in the United States. This part does not apply to the recipient’s programs or activi- ties outside the United States that do not involve individuals with disabil- ities in the United States. (b) The requirements of this part do not apply to the ultimate beneficiaries of any program or activity operated by a recipient of Federal financial assist- ance. (c) Any provision of this part held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be construed so as to continue to give maximum effect to the provision permitted by law, unless such holding shall be one of utter inva- lidity or unenforceability, in which event the provision shall be severable from this part and shall not affect the remainder thereof or the application of the provision to other persons not similarly situated or to other dis- similar circumstances. [89 FR 40180, May 9, 2024] § 84.3 Relationship to other laws. the remainder thereof or the application of the provision to other persons not similarly situated or to other dis- similar circumstances. [89 FR 40180, May 9, 2024] § 84.3 Relationship to other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including State common law) that provide greater or equal pro- tection for the rights of individuals with disabilities, or individuals associ- ated with them. [89 FR 40180, May 9, 2024] § 84.4 Disability. (a) Definition—(1) Disability. Disability means, with respect to an individual: (i) A physical or mental impairment that substantially limits one or more of the major life activities of such indi- vidual; (ii) A record of such an impairment; or (iii) Being regarded as having such an impairment as described in paragraph (f) of this section. (2) Rules of construction. (i) The defi- nition of ‘‘disability’’ shall be con- strued broadly in favor of expansive coverage, to the maximum extent per- mitted by the terms of section 504. (ii) An individual may establish cov- erage under any one or more of the three prongs of the definition of ‘‘dis- ability’’ in paragraph to the maximum extent per- mitted by the terms of section 504. (ii) An individual may establish cov- erage under any one or more of the three prongs of the definition of ‘‘dis- ability’’ in paragraph (a)(1) of this sec- tion, the ‘‘actual disability’’ prong in paragraph (a)(1)(i) of this section, the ‘‘record of’’ prong in paragraph (a)(1)(ii) of this section, or the ‘‘re- garded prong as’’ (a)(1)(iii) of this section. paragraph in ‘‘actual disability’’ (iii) Where an individual is not chal- lenging a recipient’s failure to provide reasonable modifications, it is gen- erally unnecessary to proceed under the (paragraph (a)(1)(i) of this section) or ‘‘record of’’ (paragraph (a)(1)(ii) of this section) prongs, which require a showing of an impairment that substantially limits a major life activity or a record of such an impairment. In these cases, the evaluation of coverage can be made solely under the ‘‘regarded as’’ (this paragraph (a)(1)(iii)) prong of the defi- nition of disability, which does not re- quire a showing of an impairment that substantially limits a major life activ- ity or a record of such an impairment. An individual may choose, however, to proceed under the ‘‘actua which does not re- quire a showing of an impairment that substantially limits a major life activ- ity or a record of such an impairment. An individual may choose, however, to proceed under the ‘‘actual disability’’ or ‘‘record of’’ prong regardless of whether the individual is challenging a recipient’s failure to provide reason- able modifications. (b) Physical or mental impairment— (1)(i) Physical or mental impairment is defined as any physiological disorder or condition, cosmetic disfigurement, or 465 § 84.4 45 CFR Subtitle A (10–1–24 Edition) anatomical loss affecting one or more body systems, such as: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or (ii) Any mental or psychological dis- order such as intellectual disability, organic brain syndrome, mental health condition, and specific learning dis- ability. (2) Physical or mental impairment in- cludes, but is not limited to, con- tagious and noncontagious diseases and conditions such as the following: ortho- pedic, visual, speech and hearing im- pairments, and cerebra r mental impairment in- cludes, but is not limited to, con- tagious and noncontagious diseases and conditions such as the following: ortho- pedic, visual, speech and hearing im- pairments, and cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intel- lectual disability, mental health condi- tion, dyslexia and other specific learn- ing disabilities, Attention Deficit Hy- peractivity Disorder, Human Immuno- deficiency Virus infection (whether symptomatic or asymptomatic), tuber- culosis, substance use disorder, alcohol use disorder, and long COVID. (3) Physical or mental impairment does not include homosexuality or bisex- uality. (c) Major life activities—(1) Definition. Major life activities include, but are not limited to: (i) Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concen- trating, thinking, writing, commu- nicating, interacting with others, and working; and (ii) The operation of a major bodily function, such as the functions of the immune system, special sense organs and skin, normal cell growth, an mu- nicating, interacting with others, and working; and (ii) The operation of a major bodily function, such as the functions of the immune system, special sense organs and skin, normal cell growth, and di- gestive, genitourinary, bowel, bladder, neurological, brain, respiratory, cir- culatory, cardiovascular, endocrine, lymphatic, musculoskeletal, hemic, and reproductive systems. The oper- ation of a major bodily function in- cludes the operation of an individual organ within a body system. (2) Rules of construction. (i) In deter- mining whether an impairment sub- stantially limits a major life activity, the term major shall not be interpreted strictly to create a demanding stand- ard. (ii) Whether an activity is a major life activity is not determined by ref- erence to whether it is of central im- portance to daily life. (d) Substantially limits—(1) Rules of construction. The following rules of con- struction apply when determining whether an impairment substantially limits an individual in a major life ac- tivity. (i) The term ‘‘substantially limits’’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of sec- tion 504. ‘‘Substa ual in a major life ac- tivity. (i) The term ‘‘substantially limits’’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of sec- tion 504. ‘‘Substantially limits’’ is not meant to be a demanding standard. (ii) The primary object of attention in cases brought under section 504 should be whether recipients have com- plied with their obligations and wheth- er discrimination has occurred, not the extent to which an individual’s impair- ment substantially limits a major life activity. Accordingly, the threshold issue of whether an impairment sub- stantially limits a major life activity should not demand extensive analysis. (iii) An impairment that substan- tially limits one major life activity does not need to limit other major life activities to be considered a substan- tially limiting impairment. (iv) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. (v) An impairment is a disability within the meaning of this part if it substantially limits the ability of an individual to perform a major life ac- tivity as compared to most people in the general populati impairment is a disability within the meaning of this part if it substantially limits the ability of an individual to perform a major life ac- tivity as compared to most people in the general population. An impairment does not need to prevent, or signifi- cantly or severely restrict, the indi- vidual from performing a major life ac- tivity to be considered substantially limiting. Nonetheless, not every im- pairment will constitute a disability within the meaning of this section. (vi) The determination of whether an impairment substantially limits a major life activity requires an individ- ualized assessment. However, in mak- ing this assessment, the term ‘‘sub- stantially limits’’ shall be interpreted and applied to require a degree of func- tional limitation that is lower than the 466 Dept. of Health and Human Services § 84.4 standard for substantially limits ap- plied prior to the ADA Amendments Act of 2008 (ADAAA). (vii) The comparison of an individ- ual’s performance of a major life activ- ity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statis- tical evidence. Nothing in this para- e activ- ity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statis- tical evidence. Nothing in this para- graph (d)(1) is intended, however, to prohibit or limit the presentation of scientific, medical, or statistical evi- dence in making such a comparison where appropriate. (viii) The determination of whether an impairment substantially limits a major life activity shall be made with- out regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eye- glasses or contact lenses shall be con- sidered in determining whether an im- pairment substantially limits a major life activity. Ordinary eyeglasses or contact lenses are lenses that are in- tended to fully correct visual acuity or to eliminate refractive error. (ix) The six-month ‘‘transitory’’ part of the ‘‘transitory and minor’’ excep- tion in paragraph (f)(2) of this section does not apply to the ‘‘actual dis- ability’’ (paragraph (a)(1)(i) of this sec- tion) or (paragraph ‘‘record of’’ (a)(1)(ii) of this section) prongs of the definition of ‘‘disability.’’ The effects of an impairment last he ‘‘actual dis- ability’’ (paragraph (a)(1)(i) of this sec- tion) or (paragraph ‘‘record of’’ (a)(1)(ii) of this section) prongs of the definition of ‘‘disability.’’ The effects of an impairment lasting or expected to last less than six months can be sub- stantially limiting within the meaning of this section for establishing an ac- tual disability or a record of a dis- ability. (2) Predictable assessments. (i) The principles set forth in the rules of con- struction in this section are intended to provide for generous coverage and application of section 504’s prohibition on discrimination through a frame- work that is predictable, consistent, and workable for all individuals and entities with rights and responsibilities under section 504. (ii) Applying the principles in this section, the individualized assessment of some types of impairments as set forth in paragraph (d)(2)(iii) of this sec- tion will, in virtually all cases, result in a determination of coverage under paragraph (a)(1)(i) of this section (the ‘‘actual disability’’ prong) or paragraph (a)(1)(ii) of this section (the ‘‘record of’’ prong). Given their inherent nature, these types of impairments will, as a factual mat )(i) of this section (the ‘‘actual disability’’ prong) or paragraph (a)(1)(ii) of this section (the ‘‘record of’’ prong). Given their inherent nature, these types of impairments will, as a factual matter, virtually always be found to impose a substantial limita- tion on a major life activity. There- fore, with respect to these types of im- pairments, the necessary individual- ized assessment should be particularly simple and straightforward. in set forth (iii) For example, applying the prin- ciples of this section it should easily be concluded that the types of impair- ments paragraphs (d)(2)(iii)(A) through (K) of this section will, at a minimum, substantially limit the major life activities indicated. The types of impairments described in this paragraph (d)(2) may substantially limit additional major life activities (including major bodily functions) not explicitly paragraphs in (d)(2)(iii)(A) through (K). listed (A) Deafness substantially limits hearing; (B) Blindness substantially limits seeing; (C) Intellectual disability substan- tially limits brain function; (D) Partially or completely missing limbs or mobility impairments requir- ing the use of a wheelchair substan- tially limits seeing; (C) Intellectual disability substan- tially limits brain function; (D) Partially or completely missing limbs or mobility impairments requir- ing the use of a wheelchair substan- tially limit musculoskeletal function; (E) Autism Spectrum Disorder sub- stantially limits brain function; (F) Cancer substantially limits nor- mal cell growth; (G) Cerebral palsy substantially lim- its brain function; (H) Diabetes substantially limits en- docrine function; (I) Epilepsy, muscular dystrophy, and multiple sclerosis each substantially limits neurological function; (J) Human Immunodeficiency Virus (HIV) infection substantially limits immune function; and (K) Major depressive disorder, bipolar disorder, post-traumatic stress dis- order, traumatic brain injury, obses- sive compulsive disorder, and schizo- phrenia each substantially limits brain function. (3) Condition, manner, or duration. (i) At all times taking into account the 467 § 84.4 45 CFR Subtitle A (10–1–24 Edition) principles set forth in the rules of con- struction in this section, in deter- mining whether an individual is sub- stantially limited in a major life activ- ity, it may be useful in appropriate cases to consi s set forth in the rules of con- struction in this section, in deter- mining whether an individual is sub- stantially limited in a major life activ- ity, it may be useful in appropriate cases to consider, as compared to most people in the general population, the conditions under which the individual performs the major life activity; the manner in which the individual per- forms the major life activity; or the duration of time it takes the individual to perform the major life activity, or for which the individual can perform the major life activity. (ii) Consideration of facts such as condition, manner, or duration may in- clude, among other things, consider- ation of the difficulty, effort or time required to perform a major life activ- ity; pain experienced when performing a major life activity; the length of time a major life activity can be per- formed; or the way an impairment af- fects the operation of a major bodily function. In addition, the non-amelio- rative effects of mitigating measures, such as negative side effects of medica- tion or burdens associated with fol- lowing a particular treatment regimen, may be considered when determining whether an individual’s impairment ing measures, such as negative side effects of medica- tion or burdens associated with fol- lowing a particular treatment regimen, may be considered when determining whether an individual’s impairment substantially limits a major life activ- ity. (iii) In determining whether an indi- vidual has a disability under the ‘‘ac- tual disability’’ (paragraph (a)(1)(i) of this section) or ‘‘record of’’ (paragraph (a)(1)(ii) of this section) prongs of the definition of ‘‘disability,’’ the focus is on how a major life activity is substan- tially limited, and not on what out- comes an individual can achieve. For example, someone with a learning dis- ability may achieve a high level of aca- demic success, but may nevertheless be substantially limited in one or more major life activities, including, but not limited to, reading, writing, speaking, or learning because of the additional time or effort he or she must spend to read, write, speak, or learn compared to most people in the general popu- lation. (iv) Given the rules of construction set forth in this section, it may often be unnecessary to conduct an analysis involving most or all of the facts re- lated to condition, manner, or dura- tion ion. (iv) Given the rules of construction set forth in this section, it may often be unnecessary to conduct an analysis involving most or all of the facts re- lated to condition, manner, or dura- tion. This is particularly true with re- spect to impairments such as those de- scribed in paragraph (d)(2)(iii) of this section, which by their inherent nature should be easily found to impose a sub- stantial limitation on a major life ac- tivity, and for which the individualized assessment should be particularly sim- ple and straightforward. (4) Mitigating measures. Mitigating measures include, but are not limited to: (i) Medication, medical supplies, equipment, appliances, low-vision de- vices (defined as devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eye- glasses or contact lenses), prosthetics including limbs and devices, hearing aid(s) and cochlear implant(s) or other implantable hearing devices, mobility devices, and oxygen therapy equipment and supplies; (ii) Use of assistive technology; (iii) Reasonable modifications or aux- iliary aids or services as defined in this part; (iv) Learned behavioral or adaptive neurological modification nt and supplies; (ii) Use of assistive technology; (iii) Reasonable modifications or aux- iliary aids or services as defined in this part; (iv) Learned behavioral or adaptive neurological modifications; or (v) Psychotherapy, behavioral ther- apy, or physical therapy. (e) Has a record of such an impair- ment—(1) General. An individual has a record of such an impairment if the in- dividual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activi- ties. (2) Broad construction. Whether an in- dividual has a record of an impairment that substantially limited a major life activity shall be construed broadly to the maximum extent permitted by sec- tion 504 and should not demand exten- sive analysis. An individual will be considered to fall within the prong in this paragraph (e) of the definition of ‘‘disability’’ if the individual has a his- tory of an impairment that substan- tially limited one or more major life activities when compared to most peo- ple in the general population or was misclassified as having had such an im- pairment. In determining whether an impairment substantially limited a major l r life activities when compared to most peo- ple in the general population or was misclassified as having had such an im- pairment. In determining whether an impairment substantially limited a major life activity, the principles ar- ticulated in paragraph (d)(1) of this section apply. 468 Dept. of Health and Human Services § 84.5 (3) Reasonable modification. An indi- vidual with a record of a substantially limiting impairment may be entitled to a reasonable modification if needed and related to the past disability. (f) Is regarded as having such an im- following principles pairment. The apply under the ‘‘regarded’’ as prong of the definition of ‘‘disability’’ in para- graph (a)(1)(iii) of this section: (1) Except as set forth in paragraph (f)(2) of this section, an individual is ‘‘regarded as having such an impair- ment’’ if the individual is subjected to a prohibited action because of an ac- tual or perceived physical or mental impairment, whether or not that im- pairment substantially limits, or is perceived to substantially limit, a major life activity, even if the recipi- ent asserts, or may or does ultimately establish, a defense to the action pro- hibited by section 504. (2) y limits, or is perceived to substantially limit, a major life activity, even if the recipi- ent asserts, or may or does ultimately establish, a defense to the action pro- hibited by section 504. (2) An individual is not ‘‘regarded as having such an impairment’’ if the re- cipient demonstrates that the impair- ment is, objectively, both ‘‘transitory’’ and ‘‘minor.’’ A recipient may not de- feat ‘‘regarded as’’ coverage of an indi- vidual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the recipient must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment), objectively, both ‘‘transitory’’ and ‘‘minor.’’ For purposes of this section, ‘‘transitory’’ is defined as lasting or expected to last six months or less. (3) Establishing that an individual is ‘‘regarded as having such an impair- ment’’ does not, by itself, establish li- ability. Liability is established under section 504 only when an individual proves that a recipient discriminated on the basis of disability within the meaning of section 504. (g) Exclusions. The term ‘‘disability’’ does not include the er section 504 only when an individual proves that a recipient discriminated on the basis of disability within the meaning of section 504. (g) Exclusions. The term ‘‘disability’’ does not include the terms set forth at 29 U.S.C. 705(20)(F). [89 FR 40180, May 9, 2024] § 84.5 Assurances required. (a) Assurances. An applicant for Fed- eral financial assistance to which this part applies shall submit an assurance, on a form specified by the Director, that the program or activity will be op- erated in compliance with this part. An applicant may incorporate these assur- ances by reference in subsequent appli- cations to the Department. (b) Duration of obligation. (1) In the case of Federal financial assistance ex- tended in the form of real property or to provide real property or structures on the property, the assurance will ob- ligate the recipient or, in the case of a subsequent transfer, the transferee, for the period during which the real prop- erty or structures are used for the pur- pose for which Federal financial assist- ance is extended or for another purpose involving the provision of similar serv- ices or benefits. (2) In the case of Federal financial as- sistance extended to ose for which Federal financial assist- ance is extended or for another purpose involving the provision of similar serv- ices or benefits. (2) In the case of Federal financial as- sistance extended to provide personal property, the assurance will obligate the recipient for the period during which it retains ownership or posses- sion of the property. (3) In all other cases the assurance will obligate the recipient for the pe- riod during which Federal financial as- sistance is extended. (c) Covenants. (1) Where Federal fi- nancial assistance is provided in the form of real property or interest in the property from the Department, the in- strument effecting or recording this transfer shall contain a covenant run- ning with the land to assure non- discrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. (2) Where no transfer of property is involved but property is purchased or improved with Federal financial assist- ance, the recipient shall agree to in- clude the covenant described in para- graph (b)(2) of this section in the operty is involved but property is purchased or improved with Federal financial assist- ance, the recipient shall agree to in- clude the covenant described in para- graph (b)(2) of this section in the in- strument effecting or recording any subsequent transfer of the property. (3) Where Federal financial assist- ance is provided in the form of real property or interest in the property from the Department, the covenant shall also include a condition coupled with a right to be reserved by the De- partment to revert title to the prop- erty in the event of a breach of the cov- enant. If a transferee of real property proposes to mortgage or otherwise en- cumber the real property as security 469 § 84.6 45 CFR Subtitle A (10–1–24 Edition) for financing construction of new, or improvement of existing, facilities on the property for the purposes for which the property was transferred, the Di- rector may, upon request of the trans- feree and if necessary to accomplish such financing and upon such condi- tions as he or she deems appropriate, agree to forbear the exercise of such right to revert title for so long as the lien of such mortgage or other encum- brance remains effective. [42 FR 226 h condi- tions as he or she deems appropriate, agree to forbear the exercise of such right to revert title for so long as the lien of such mortgage or other encum- brance remains effective. [42 FR 22677, May 4, 1977, as amended at 70 FR 24319, May 9, 2005] § 84.6 Remedial action, voluntary ac- tion, and self-evaluation. (a) Remedial action. (1) If the Director finds that a recipient has discriminated against persons on the basis of dis- ability in violation of section 504 or this part, the recipient shall take such remedial action as the Director deems necessary to overcome the effects of the discrimination. (2) Where a recipient is found to have discriminated against persons on the basis of disability in violation of sec- tion 504 or this part and where another recipient exercises control over the re- cipient that has discriminated, the Di- rector, where appropriate, may require either or both recipients to take reme- dial action. (3) The Director may, where nec- essary to overcome the effects of dis- crimination in violation of section 504 or this part, require a recipient to take remedial action (i) with respect to per- sons with disabilities who are no longer participants in th e effects of dis- crimination in violation of section 504 or this part, require a recipient to take remedial action (i) with respect to per- sons with disabilities who are no longer participants in the recipient’s program or activity but who were participants in the program or activity when such discrimination occurred or (ii) with re- spect to persons with disabilities who would have been participants in the program or activity had the discrimi- nation not occurred. (b) Voluntary action. A recipient may take steps, in addition to any action that is required by this part, to over- come the effects of conditions that re- sulted in limited participation in the recipient’s program or activity by qualified persons with disabilities. (c) Self-evaluation. (1) A recipient shall, within one year of the effective date of this part: (i) Evaluate, with the assistance of interested persons, including persons with disabilities or organizations rep- resenting persons with disabilities, its current policies and practices and the effects thereof that do not or may not meet the requirements of this part; (ii) Modify, after consultation with interested persons, including persons with disabilities or olicies and practices and the effects thereof that do not or may not meet the requirements of this part; (ii) Modify, after consultation with interested persons, including persons with disabilities or organizations rep- resenting persons with disabilities, any policies and practices that do not meet the requirements of this part; and (iii) Take, after consultation with in- terested persons, including persons with disabilities or organizations rep- resenting persons with disabilities, ap- propriate remedial steps to eliminate the effects of any discrimination that resulted from adherence to these poli- cies and practices. (2) A recipient that employs fifteen or more persons shall, for at least three years following completion of the eval- uation required under paragraph (c)(1) of this section, maintain on file, make available for public inspection, and provide to the Director upon request: (i) A list of the interested persons con- sulted (ii) a description of areas exam- ined and any problems identified, and (iii) a description of any modifications made and of any remedial steps taken. [42 FR 22677, May 4, 1977, as amended at 70 FR 24319, May 9, 2005; 89 FR 40182, May 9, 2024] § 84.