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- MONDAY, AUGUST 14, 1978 · 

PART II 

DEPARTMENT OF 

HEALTH, 

EDUCATION, AND 

WELFARE 

Office of the Secretary 

• 

NONDISCRIMINATION 

IN FEDERALLY ASSISTED 

PROGRAMS 

Policy 'Interpretations 

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[OCR-00003]
36034 

[4110-12] 

DEPARTMENT OF HEALTH, 

EDUCATION, AND WELFARE 

Office of the Socrotary 

NONDISCRIMINATION IN FEDERALLY ASSISTED 

PROGRAMS 

Policy lntorpretotions 

INTRODUCTION 

The following four policy interpr.etatlons are issued by the Office for Civil 

Rights under the procedures an­ nounced in the FEDERAL REGISTER on May 1, 1978, 43 FR 18630. They inter-· 

pret the Department's regulation. 

Issued under section 504 of the Rehabilitatlon Act of 1973. 

DAVID S. TATEL, 

Director, 

Office for Civil Rights. 

AUGUST 8, 1978. 

SECTION 504 OF THE REHABILITATION

ACT OF 1973 

POLICY INTERPRETATION NO. 3 

Subject: "Program Accessibility" Requirements. 

Policy Interpretation: A· recipient is 

not required to make structural. modiflcatlons to its existing facilities if Its 

services can be made effectively available to mobility impaired persons by 

other methods. In selecting from 

among other methods, recipients must 

give priority to those that offer handicapped and nonhandicapped persons 

programs and actlvities in the. same setting. Because of the .administrative 

Impossibility of continually determining, on an up-to-date basis, whether 

mobility Impaired individuals will be 

entitled to services by a given recipi­ ent, and for other reasons set forth 

below, the absence of mobility impaired persons residing in an area cannot be used as the test of whether 

programs and activities must be made 

accessible. . Discussion: The Department has 

been asked by recipients conductmg modest programs (e.g., libraries in 

rural areas, small welfare offices, day care centers and senior citizens cen­ ters): (1) Whether they must make 

structural changes to their buildings 

to accommodate persons who are mo­ blllty Impaired; and C2) whether they 

must make their services accessible to 

mobility impaired persons even if no. such persons are known to live in their 

service area. The Section 504 regulation was care­ fully written to require "program ac- cessiblllty" not "building accessibil­ ity," thus allowing recipients flexibility in selecting the means of compli­ ance. For example, they may arrange for the delivery of their services at alNOTICES 

ternative sites that are accessible or use aides or deliver services to persons 

at their homes. The regulation does 

not require that all existing facilities or every part of an existing facility be 

made accessible; structural changes are not necessary if other methods are effective in making the recipient's ser­ vices available to mobility Impaired 

persons. For example, a library build• 

ing in a rural area with one room and an entrance with several steps can make its services accessible in several 

ways. It may construct a simple 

wooden ramp quickly and at relatively low cost. Mobility impaired persons 

may be provided access to the library's services through a bookmobile or by special messenger service or clerical 

aid or any other method that makes 

the resources of the library "readily accessible." However, recipients are re­ quired to give priority to methods that .offer handicapped and nonhandl­ capped persons programs and activities in the same setting. 

There ls an additional option for re­ cipients that have fewer than 15 em• ployees and that provide health, wel­ fare, or other social services. If such a recipient finds, after consulting with a 

handicapped person seeking .services, 

that only a significant alteration to its 

existing facilities will make its program accessible, the recipient may refer the handicapped person to another provider of the same services 

that is accessible. The referring recipient has the obligation to determine 

that the other provider is accessible 

and is wllllng to provide the services. 

The section 504 regulation does not 

condition the requirement of "program accessibility" upon handicapped 

persons residing in the recipient's serv­ ice area. Such a condition would be administratively unworkable. It would 

require the establishment of arbitrary geographic boundaries for each recipient's service area, the identification of 

all handicapped persons in that area and periodic surveys to determine 

whether handicapped persons have 

moved into or out of the service area. It would al.so ignore the needs of those 

persons who temporarily become mo­ bility impaired or those mobility impaired persons who visit a service area. Moreover, mobility impaired persons 

may decide not to ·settle in a communi­ ty because its services are not accessible. 

The Department concludes, as it did 

when the section 504 regulation was adopted, that because the "standard 

(for program accessibility) is flexible" 

the regulation "does not allow for 

waivers" (See "Authority" section 

below) . . Coverage: This policy interpretation 

applies to any public or private institution, person, or other entity that re• ceives or benefits from HEW financial 

assistance. For further information, see definition of "recipient" at 45 CFR 

section 84.3Cf). 

Authority: Regulation Issued under 

section 504 of the Rehnbllltntlon Act 

of 1973, 45 CFR § 84.22 and appendix 

A. 

Section 84.22: 

(a) Program accessibility A reclplont 

shall operate each program or activity 

to which this part applies so that tho 

program or activity, when viewed In Its 

entirety, is readily accessible to hnndl• 

capped persons. This paragraph docs 

not require a recipient to make each of 

its existing facilities or every part of n facility accessible to and usable by handicapped persons. Cb) Methods. A recipient may comply 

with the requirements of paragraphs Ca) of this section through such means as redesign of equipment, reassignment 

of classes or other services to accessible buildings, assignment of aides to 

beneficiaries, home visits, delivery of 

health, welfare, or other social ser• vices at alternate accessible sites, alteratlon of existing facilities and con• structlon of new facilities in confor­ mance with the requirements of 

§84.23, or any other methods that 

result in making its program or activity accessible to handicnpped persons. 

A recipient is not required to make 

structural changes in existing facilities 

where other methods are effective In 

achieving compliance with paragraph Ca> of this section. In choosing among 

available methods for meeting tho ro• quirement of paragraph (a) of this sec- tion, a recipient shall give priority to 

those methods that offer programs 

and activities to handicapped persons in the most integrated settlng approprlate. 

Cc> Small health, welfare, or other 

social service providers. If a rccelplent 

with fewer than 16 employees that 

provides health, welfare, or other 

social services finds, after consultation 

with a handicapped person seeking Its 

services, that there is no method or complying with paragraph (a) of this 

section other than making a significant alteration in its existing facllltles, the 

recipient may, as an alternative, refer 

the handicapped person to other pro• 

viders of those services that are acces- sible. 

Appendix A- Section-by-Section Analysis, Subpart C-Program Accessiblity. 

Several commenters expressed con• cern about the feasibility or compll• ance with the program nccesslblllty standard. The Secretary believes that 

the standard is flexible enough to 

permit recipients to devise ways to 

make their programs accessible short 

of extremely expensive or impractical 

physical changes in facilities. Accordingly, the section does not alow for 

waivers. The Department ls ready at 

all times to provide technical assistFEDERAL REGISTER, VOL 43, NO, 157-MONDAY, AUGUST 14, 1978 

[OCR-00003]
ance to recipients in meeting their 

program accessibility responsibilities. 

For this purpose, the Department is 

establishing a special technical assist­ ance unit. Recipients are encouraged 

to call upon the unit staff for advice 

and guidance both on structural modifications and on other ways of meeting the program accessibility requirements • • •. (Emphasis added.) 

Further, it is the Department's belief, after consultation with experts 

in the field, that outside ramps to 

buildings can be constructed quickly 

and at a relatively low cost. Therefore, 

it will be expected that such structural 

additions will be made promptly • • •. 

<Emphasis added.) . 

SECTION504 OF THE REHABILITATON 

ACT OF1973 

POLICY INTERPRETATION NO. 4 

Subject: Carrying Handicapped Per­ sons to Achieve Program Accessibility. 

Policy Interpretation: Carrying is an unacceptable method for achieving 

program accessibility for mobility impaired persons except in two cases. 

First, when program accessibility can be achieved only -through structural 

changes, carrying may serve as an ex­ pedient until construction Is completed Second, carrying will be permitted 

in manifestly exceptional cases if car­ riers are formally instructed on the 

safest and least humiliating means of 

carrying and the service is provided in 

a reliable manner. Discussion: The section 504 regula­ tion requires that federally assisted 

programs and activities be "readily ac­ cessible" to handicapped persons. A 

program or activity will be judged "readily accessible" only if it is con­ ducted in a building and room that · mobility impaired persons can enter 

and leave without assistance from 

others. Carrying requires such assist­ ance and is therefore unacceptable, Carrying may also be undependable 

(e.g., when college students or employ­ ees are expected to vohwteer> and 

often hazardous (e.g., when carriers are untrained or when the- carrying is 

to occur on poorly illuminated or narrow stairs). It may humiliate the 

handicapped person by dramatizing 

his or her dependency and creating a 

spectacle. Its use is therefore inconsistentwith section 504's critical objec­ tive of encouraging handicapped per­ sons to participate in programs and ac­ tivities. The Department recognizes that carrying may be necessary in the following cases:- (1) The section 504 regulation re­ quires "program accessibility" for 

handicapped persons and suggests a variety of methods for attaining com- pliance that can be implemented within 60 days. However, if "program accessibility" can be achieved only 

NOTICES 

through "alterations or existing facili- tles (or) construction oC new facili- ties," the construction must be com­ pleted "as expeditiously as possible," 

but In no event, later than June 3, 

1980. Although recipients are not re­ quired to provide "program accessibil- ity" during the period oc construction, 

the Department encourages recipients 

to develop an interim expedient that 

may be carrying. 

<2> Carrying Is also acceptable in 

manifestly exceptlonnl cases. For ex­ ample, a university has properly main- tained that the structural changes and 

devices necessary to ndapt its oceano­ graphic vessel for use by mobility im• 

paired persons are prohibitively, ex­ pensive or unavailable. Carrying, 

under this exception, must be provided 

in a manner that nttempts to over• come Its shortcomings. For example, 

carriers must be formally instructed on the safest and least humilatlng means or carrying and the service 

must be provided in a reliable manner. Coverage: This policy interpretation applies to any public or private Institution, person, or other entity that re­ ceives or benefits from HEW financial 

assistance. For further information, see definition o! "recipient" at 45 CFR 

§84.3(f). 

Authority: Regulation Issued under 

section 504 of the Rehabilitation Act 

of 1973, 45 CFR §§ 84.22 (a) Cb) and 

Cd), 

Section 84.22: 

(a) Program Accessibility A recipient shall operate each program or activity to whlch this part npplles so that the program or activity, when 

viewed in its entirety, Is readily accessible to handicapped persons. Thls 

paragraph does not require arecipient 

to make each of Its existing facilities or every part of a facility accessible to 

and usable byhandicapped persons. 

Cb) Methods. A recipient may comply with the requirement or paragraph (a) 

of this section through such means as 

redesign of equipment, reassignments 

of classes or other services to accessible buildings, assignment or aides to 

benellclaries, home visits, delivery of 

health, welfare, or other social ser­ vices at alternate accessible sites, alteratlon or existing facilities and con­ struction of new facilities in confor­ mance with the requirements of 

§ 84.23, or any other methods that 

result in making Its program or activi­ ty accessible to handicapped persons. A recipient ls not required to make •structural changes in existing facilities 

where other methods are effectlve in 

achieving compliance with paragraph (a) of this section. In choosing among 

available methods for meeting the re­ quirement of paragraph (a) or thissec­ tion, a recipient shall give priority to 

those methods that offer programs and activities to handicapped persons 

36035 

in the most integrated setting appropriate.

(d) Time period. A recipient shall 

comply with the requirement of paragraph (a) of this section within 60 

days of the effective date of this part 

except that where structural changes 

in facilities are necessary, such 

changes shall be made within 3 years 

of the effective date o! this part, but 

in any event as expeditiously as possible. 

SECTION 504 OF THE REHABILITATION 

ACT OF 1973 

POLICY INTERPREPARTIONNO. 5 

Subject: Participation o! Handi- capped Students in Contact Sports. . Policy Interpretation: Students who 

have lost an organ, limb, or appendage 

but who are otherwise qualified. may 

not be excluded by recipients from 

contact sports. However, such students 

may be required to obtain parental 

consent and approval for participation from the doctor most familiar with 

their condition. If the school system 

provides Its athletes with medical care Insurance for sickness or accident, it 

must make the insurance available 

without discrimination against handicapped athletes. 

Discussion: The Department bas re­ ceived several complaints that students have been denJed an opportuni- ty to participate in contact sports 

solelybecause they have Jost an organ. limb, or appendage. The regulation's requirement that handicapped stu- dents be provided an equal opportuni- ty to participate in physical education 

and athletics programs extends to con­ tact sports. The exclusion from con­ tact sports of students who have lost an organ, limb, or anappendage Ce.g. a kidney, leg, or flnger)butwho are otherwise qualifiedis a denial of equal op­ portunity. It denies participation not on the basis of ability but because of a handicap. A recipient cannot assume that such 

a child is too great a risk for physical 

injury orillness if permitted to participate in contact sports. However, a child may be required to obtain parental consent and approval for participa- tion from the doctor most familiar 

with his orher condition. 

If the recipient provides its athletes 

with medical care insurance for sickness or accident, It must make the in­ surance available" without discriminat- tlon againsthandicapped athletes. 

Coverage: This policy interpretation 

npplles to any public or private institution, person, or other entity that re­ ceives or benefits from HEW financial 

assistance. For further information see definition of "recipient." at 45 CFR 

§84.3(f). . Authority: Regulation Issued under 

section 504 or the Rehabilitation Act 

of 1973, 45 CFR § 84.37(c)(1). 

FEDERAL REGISTER, VOL 43, NO. 157-MONDAY, AUGUST 14, 1978 
• • • 

36036 NOTICES 

Section 84.37(c)(1): 

(cl Physical-education and athletics. 

Cl) In providing physical education 

courses and athletics and slmllar programs and activities to any of its students, a recipient to which this subpart applies may not discriminate on . the basis of handicap. A recipient that 

offers physical education courses or 

that operates or sponsors interscholastic, club, or intramural athletics shall 

provide to qualified handicapped students an equal opportunity for participation in these activities. . 

SECTION 504 OF THE REHABILITATION 

ACT OF 1973 

POLICY INTERPRETATION NO. 6 

SUBJECT: School board members as 

hearing officers. 

POLICY INTERPRETATION: School 

board members may not serve as hearing officers in proceedings conducted 

to resolve disputes between parents of 

handicapped children and officials of 

their school system. 

DISCUSSION: The section 504 regulation requires school districts to establish a "system of procedural safe­ guards" to protect against errors in 

the educational programs developed 

for handicapped students. One requirement of thatsystem is an "impartial hearing • • • and a review procedure" through which a parent may 

contest the evaluation and placement of his or her child. 

Recipients have asked whether 

school board members may serve as 

the hearing or reviewing authority in 

their own school district. The Department has concluded that this practice 

ls inconsistent with the regulation's 

requirement of "impartial" proceed• 

ings. School board members have a 

clear interest in the outcome of the 

hearing. For example, determinations 

adverse to the parents will often avoid 

additional expenditures by the board. 

Also, the school board has hired, and 

therefore expressed confidence in, the 

judgment of the professionals challenged in the hearing. Moreover, since 

the Department will generally not 

review individual placement and other 

educational decisions of a school district if the "system of procedural safeguards" is in place, every precaution 

must be taken to ensure that those 

procedures operate fairly. This interpretation is also supported 

by our commitment to coordinate section 504 procedural safeguards with 

those established by the Office of 

Education under the Education of the 

Handicapped Act. The regulations 

issued under that statute, as interpret­ ·ed by the Office of Education, bar 

school board members from serving as 

hearing officers in their school system. 

COVERAGE: This policy interpreta­ tion applies to any public or private in- . stltutlon, person, or other entity that 

receives or benefits from HEW financial assistance. For further information, see definition of "recipient" at 45 

CFR 84.3(f). 

AUTHORITY: Regulation Issued 

under section 504 of the Rehabilitation Act of 1973, 45 CFR 84.36 and Ap­ pendix A thereto. 

Section 84.36: A recipient that operates a public elementary or secondary education program shall establish and 

Implement, with respect to actions regarding the identification, evaluation, 

or educational placement of persons who, because of handicap, need or are 

believed to need special instruction or 

related services, a system of procedural safeguards that includes notice, an 

opportunity for, the parents or guardi- an of the person to examine relevant 

records, an impartial hearing with op- portunity for participation by the per- . son's parents or guardian and repre- sentation by counsel, and a review pro­ cedure. Compliance with the procedur• al safeguards of section 616 of tho 

Education of the Handicapped Act is 

one means of meeting this require• 

ment. 

Appendix A, Subpart D (Fifth Paragraph): It is not the intention or tho 

Department, except in extraordinary 

circumstances, to review tho result of 

individual placement and other educn• 

tlonal decisions, so long as the school 

district complies with the "process" requirements of this subpart (concern• 

ing idontiflcatlon and location, evalua- tlon, and due process procodures) 

Regulations Issued Under the Education of the Handicapped Act, 45 CFR 

121a.507 andAppendix A Therto 

Section 121a.507:(a) A hearing may 

not be conducted: 

(1) By a person who ls an employee 

of a public agency which is involved 1n 

the education orcare of the child, or 

(2) By any person having a personally 

or professional interest which could 

conflict with his or her objectivity in 

the hearing. 

(bl A person who otherwise qualifies 

to conduct a hearing under paragraph (a) of this• section Is not an employee of the agency solely because he or she 

is paid by the agency to serve as a 

hearing officer • . • • 

Appendix A, Subpart E ("Response" 

to "Comment" on Section 121a.507>: 

[A] parent of the child in question nnd 

school board officials are disqualified under§ 121a.507. 

[FR Doc. '18-22612 Flied 8-11-78; 8:46 am] 

FEDERALREGISTER, VOL 43, NO. 157-MONDAY, AUGUST 14, 1978