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[4110-12]

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

Office of the Secretary

NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS

Policy Interpretations

INTRODUCTION

The following four policy interpretations are issued by the Office for Civil  Rights under the procedures announced in the FEDERAL REGISTER on May 1, 1978,  43 FR 18630. They interpret the Department's regulation issued under section  504 of the Rehabilitation 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  modifications 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 activities 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 recipient, 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 conducting  modest programs (e.g., libraries in rural areas, small welfare offices, day  care centers and senior citizens centers): (1) Whether they must make structural  changes to their buildings to accommodate persons who are mobility impaired;  and (2) whether they must make their services accessible to mobility impaired  persons even if no such persons are known to live in their service area.
*not **not*
There is an additional option for recipients that have fewer than 15 employees  and that provide health, welfare, 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 willing to provide the  services.

The Section 504 regulation does not condition the requirement of "program  accessibility" upon handicapped persons residing in the recipient's service  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 also ignore the needs of those persons who temporarily  become mobility impaired or those mobility impaired persons who visit a service  area.  Moreover, mobility impaired persons may decide not to settle in a community  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 receives or benefits from HEW financial  assistance. For further information, see definition of "recipient" at  45 CFR section 84.3(f).

*Authority:*  Regulation issued under section 504 of the RehabilitationAct of 1973, 45 CFR §84.22 and appendix A.

Section 84.22:

   (a)*Program accessibility.*  A recipient shall operate each program  or activity to which this part applies so that the program or activity, when  viewed in its entirety, is readily accessible to handicapped persons.  This  paragraph does not require a recipient to make each of its existing facilities  or every part of a facility accessible to and usable by handicapped persons.

   (b)  *Methods.*  A recipient may comply with the requirements  of paragraph (a) 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 services at alternate accessible sites, alteration of existing facilities  and construction of new facilities in conformance with the requirements of  §84.23, or any other methods that result in making its program or activity  accessible to handicapped persons.  A recipient is not required to make structural  changes in existing facilities where other methods are effective in achieving  compliance with paragraph (a) of this section.  In choosing among available  methods for meeting the requirement of paragraph (a) of this section, a recipient  shall give priority to those methods that offer programs and activities to  handicapped persons in the most integrated setting appropriate.

   (c) *Small health, welfare, or other social service providers.*   If a recipient with fewer than 15 employees that provides health, welfare,  or other social services finds, after consultation with a handicapped person  seeking its services, that there is no method of complying with paragraph (a)  of this section other than making a significant alteration in its existing  facilities, the recipient may, as an alternative, refer the handicapped person  to other providers of those services that are accessible.

Appendix A—Section-by-section Analysis, Subpart C—Program Accessibility.
*The Secretary believes that the standardis flexible enough to permit recipients to devise ways to make their programsaccessible short of extremely expensive or impractical physical changes in facilities. Accordingly, the section does not allow for waivers.*
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.)

SECTION 504 OF THE REHABILITATION  ACT OF 1973

POLICY INTERPRETATION NO. 4

*Subject:*  Carrying Handicapped Persons 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 expedient until construction is completed.  Second,  carrying will be permitted in manifestly exceptional cases if carriers 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 regulation requires that federally assisted  programs and activities be "readily accessible" to handicapped persons.   A program or activity will be judged  "readily accessible" only if  it is conducted in a building and room that mobility impaired persons can enter  and leave without assistance from others.  Carrying requires such assistance  and is therefore unacceptable.

Carrying may also be undependable (e.g., when college students or employees  are expected to volunteer) 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 inconsistent with section 504's  critical objective of encouraging handicapped persons to participate in programs  and activities.

The Department recognizes that carrying may be necessary in the following  cases:

(2)  Carrying is also acceptable in manifestly exceptional cases.  For example,  a university has properly maintained that the structural changes and devices  necessary to adapt its oceanographic vessel for use by mobility impaired persons  are prohibitively expensive or unavailable.  Carrying, under this exception,  must be provided in a manner that attempts to overcome its shortcomings.  For  example, carriers must be formally instructed on the safest and least humiliating  means of 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 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 §§84.22(a); (b) and (d).

Section 84.22:

   (a) *Program accessibility.*  A recipient shall operate each program  or activity to which this part applies so that the program or activity, when  viewed in its entirety, is readily accessible to handicapped persons.  This  paragraph does not require a recipient to make each of its existing facilities  or every part of a facility accessible to and usable by handicapped persons.

   (b)  *Methods.*  A recipient may comply with the requirements  of paragraph (a) 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 services at alternate accessible sites, alteration of existing facilities  and construction of new facilities in conformance with the requirements of  §84.23, or any other methods that result in making its program or activity  accessible to handicapped persons.  A recipient is not required to make structural  changes in existing facilities where other methods are effective in achieving  compliance with paragraph (a) of this section.  In choosing among available  methods for meeting the requirement of paragraph (a) of this section, a recipient  shall give priority to those methods that offer programs and activities to  handicapped persons 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 of this part, but  in any event as expeditiously as possible.

SECTION 504 OF THE REHABILITATION  ACT OF 1973

POLICY INTERPRETATION NO. 5

*Subject:*  Participation of Handicapped 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 has received several complaints that  students have been denied an opportunity to participate in contact sports solely  because they have lost an organ, limb, or appendage.  The regulation's requirement  that handicapped students be provided an equal opportunity to participate in  physical education and athletics programs extends to contact sports.  The exclusion  from contact sports of students who have lost an organ, limb, or an appendage  (e.g. a kidney, leg, or finger) but who are otherwise qualified is a denial  of equal opportunity.  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 or illness if permitted to participate in contact sports.  However,  a child may be required to obtain parental consent and approval for participation  from the doctor most familiar with his or her condition.

If the recipient provides its athletes with medical care insurance for sickness  or accident, it must make the insurance available without discrimination against  handicapped athletes.

*Coverage:*  This policy interpretation applies to any public or private  institution, 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 §84.37 (c)(1).

Section 84.37(c)(1):

   (c)  *Physical education and athletics.*  (1)   In providing physical education courses and athletics and similar programs  and activities to any of its students, a recipient to which this subpart appliesmay 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 opportunityfor participation in these activities.
SECTION 504 OF THE REHABILITATIONACT 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 safeguards" to protect against errors in  the educational programs developed for handicapped students.  One requirement  of that system 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 is inconsistent with the regulation's requirement of  "impartial" proceedings.   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 interpreted by the Office of Education, bar school board members  from serving as hearing officers in their school system.

COVERAGE:  This policy interpretation applies to any public or private institution,  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 Appendix 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 guardian of the person to examine relevant  records, an impartial hearing with opportunity for participation by the person's  parents or guardian and representation by counsel, and a review procedure.   Compliance with the procedural safeguards of section 615 of the Education ofthe Handicapped Act is one means of meeting this requirement.

   *Appendix A.  Subpart D (Fifth Paragraph):*  It is not the intention  of the Department, except in extraordinary circumstances, to review the result  of individual placement and other educational decisions, so long as the school  district complies with the "process" requirements of this subpart  (concerning identification and location, evaluation, and due process procedures)  * * *.

*Regulations Issued Under the Education of the Handicapped Act, 45 CFR 121a.507  and Appendix A Thereto.*

   *Section 121a.507:* (a) A hearing may not be conducted:

   (1)  By a person who is an employee of a public agency which is involvedin the education or care of the child, or

   (2)  By any person having a personal or professional interest which couldconflict with his or her objectivity in the hearing.

   (b)  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 and school board    officials are disqualified under § 121a.507.

[FR Doc. 78-22612 Filed 8-11-78: 8:45 am]****
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