Response to Plaintiffs' Request for Production, Inspection and Copying of Documents

     [||8691f36c-4337-4c85-bfa5-eb570379f93d||] " * 
IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

  

BERNICE TERRY, et al., 

PlaintifEs, 

Vv. Civil No. H 76-373 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 

  

  

  

/ 

RICHARD GORDON HATCHER, et al., 

Plaintiffs, 

v. Civil No. H 77-154 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 

/ 

RESPONSE OF DEFENDANT JOSEPH A. CALIFANO 

TO PLAINTIFFS' REQUEST FOR PRODUCTION, 
INSPECTICN, AND COPYING OF DCCUMENTS 
  

- 
i Defendant Joseph A. Califano, by his undersigned attorneys, 

hereby responds pursuant to Rule 34(b) of the Federal Rules 

of Civil Procedure to plaintiffs' Request for Production, 

Inspection, and Copying of Documents: 

Request 1. All drafts of the State Agency guidelines 

prior to the draft dated August, 1975; 

Response 1. Defendant Califano objects to the production 
  

and copying of documents referred to in Request 1. Those 

documents are privileged from production because they constitute 

drafts of documents containing formulations and recommendations 

of policy or expressing opinions and interpretations comprising 

part of a process by which governmental decisions and policies 

are made. In addition, the documents are privileged because 

 



  

* ® 

they reflect the mental processes of the individuals in 

making governmental decisions. 

Request 2. Transcripts, tapes, summaries, comments, 
  

criticisms, on the State Agency guidelines of August, 1975 by 

Peter Holmes (former director of the Office for Civil Rights), 

Martin Gerry (present Director of the Office for Civil Rights) , 

and by the regional and national chiefs of the Health and 

Social Service Branch, Office for Civil Rights; 

Response 2. Defendant Califano objects to the production 
  

and copying of documents referred to in Request 2. Those 

documents are privileged from production because they consti- 

tute inter and intra-agency documents and drafts of documents 

containing formulations and recommendations of policy or 

expressing opinions and interpretations comprising part of a 

process by which governmental decisions and policies are 

made. In addition, the documents are privileged because 

they reflect the mental processes of the individuals in 

Request 3. Corrected copy of enforcement activity 
  

chart of 1975, and copies of similar charts for all years 

Response 3. The corrected copy of the enforcement activity 
  

chart for 1975 will be made available for inspection and 

copying at the Department of Health, Education, and Welfare, 

North Building, 300 Independence Ave., S.W., Washington, D. C. 

at a mutually convenient time. Similiar charts for all 

years from 1972 to the present do not exist. 

Request 4. Complete civil rights file for the Methodist 
  

Hospital, Gary, Indiana: 

Response 4: The complete civil rights file for the 
  

Methodist Hospital will be made available for inspection and 

copying at the Region V HEW Offices in Chicago, Illinois at 

a mutually convenient time.  



» * 

Request 5. All civil rights files for all health 

  

  

facility relocation and/or displacement projects for the 

past five years, and if the project was a Hill-Burton facility, 

Part I of the Hill-Burton application and the narrative 

description of the project; 

Response 5: Defendant Califano will make available for 
  

inspection and copying at the Department of Health, Education 

and Welfare, North Building, 300 Independence Ave., SW, 

Washington, D. C., 20201, at a mutually convenient time the 

documents referred to in this request. 

Request 6. Policy paper from Region V on this problem 
  

of relocation of health facilities, and comments, memoranda, 

letters, and criticism, from the Regional Health Directors 

and from all persons within the Office for Civil Rights and 

the Health Resources Administration, both from Region V and 

Washington: 

Response 6: Defendant Califano objects to the production 
  

and copving of the document referred to in Request 6. This 

document is privileged from production because it is an 

intra-agency document containing formulations and recommendations 

of policy or expressing opinions and interpretations comprising 

part of a proccess by which governmental decisions and policies 

are made. 

Request 7. Any document from the Office for Civil   

Rights to the Office of Surplus Property, DHEW, concerning 

possible civil rights consequences and/or advisability of a 

civil rights review in the circumstances of the Chicago 

Veteran's Hospital; 

Response 7: Defendant Califano will make available for 
  

 



® ® 

inspection and copying at the Department of Health, Education 

  

and Welfare, North Building, 300 Independence Ave., S.W., 

Washington, D. C. 20201, at a mutually convenient time the 

documents referred to in this request. 

Request 8. Copy of Notice of Hearing, Letter of Non-   

compliance, and any other public documents involving the 

Park City Hospital, Bridgeport, Connecticut; 

Response 8: Defendant Califano will make available for 
  

inspection and copying at the Department of Health, Education 

and Welfare, North Building, 300 Independence Ave., S.W., 

Washington, D. C. 20201 at a mutually convenient time the 

documents referred to in this request. 

Request 9. Civil Rights file on West Virginia relocation   

project; 

Response 9: HEW cannot locate any documents relevant to 
  

Request No. 8. 

  

Request 10. Current enforcement activity report for 

Region V showing each health and social service civil rights 

matter in the office; 

Response 10: Attached are the Annual Operating Plans   

for the Region V Cffice for Civil Rights for the last three 

quarters. (Attachments 1, 2, and 3) 

- 
i Request 11. All civil rights files for all Hill-Burton 

  

projects showing civil rights issues considered by Office 

for Civil Rights and State Hill~Burton agencies for past five 

years; 

Response 1ll: The Civil rights files for Region V will 
  

be made available for inspection and copying at the Region V 

HEW Offices in Chicago, Illinois at a mutually convenient 

time. Defendant Califano objects to production of these files 

for Regions other than Region V because it is unduly burdensome 

and oppressive and for the additional reason that it is neither 

relevant nor likely to lead to relevant information.  



® » 
Request 12. Copies of all reports received from the 

  

  

Delaware Department of Health and Social Services since 

July 10, 1975; 

Response 12: Defendant Califano will make available 
  

for inspection and copying at the Department of Health, 

Education and Welfare, North Building, 300 Independence 

Ave., SW, Washington, D. C. 20201 at a mutually convenient 

‘time the documents referred to in this request. 

Request 13. All complaints under section 504, date 
  

received, whether resolved (and if so, how resolved), whether 

on-site reviews conducted, and program area (health, education, 

social services, etc.) 

Response 13: Defendant Califano will make available 
  

for inspection and copying at the Department of Health, 

Education and Welfare, North Building, 300 Independence Ave., 

S.W., Washington, D. C. 20201 at a mutually convenient 

time the deccuments referred to in this request. The names 

of the complainants have been deleted because they are not 

relevant to this suit and because toc release the names would 

be an unwarranted invasion of the complainant's Privacy: 

Request 14. All complaints raising site location issues 
  

under either Title VI or section 504; 

Response 14: HEW can locate no documents responsive to 
  

this request. 

Request 15. Letters finding violations and notices of 
  

opportunity for hearing under section 504; 

Response 15: HEW can locate no documents responsive to 
  

this request. 

Request 16. Worksheets, charts, inventories, and 
  

other documents showing number of person days needed to 

perform each of the component parts of the civil rights 

program for each Region developed during survey by Office 

for Civil Rights team in summer of 1975; 

 



* * 
Response 16: Defendant Califano will make available 

  

  

for inspection and copying at the Department of Health, 

Education and Welfare, North Building, 300 Independence 

Ave., S.W., Washington, D. C. 20201, at a mutually convenient 

time the documents referred to in this request. 

Request 17. Staff allocation and actual positions 
  

filled in Health and Social Services Branch of the Office 

for Civil Rights for the past five years, nationwide and in 

Region III. 

Response 17: Defendant Califano will make available 
  

for inspection and copying at the Department of Health, 

Education and Welfare, North Building, 300 Independence 

Ave., S.W., Washington, D. C. 20201 at a mutually convenient 

time the documents referred to in this request. The Annual 

Operating Plan for Region V is attached. (Attachment 4) 

= 

Request 18. Copies of all section 504 guidelines and 
  

regulations; 

onsa 18: The attached section 504 regulations are 
  

can locate responsive to this request. 

(Attachment 5) 

Request 19. Copies of the Indiana State Methods   

required under Title VI regulations; 

Response 19: HEW can locate no documents responsive to 
  

this request. However, the Methods of Administration 

for the State of Indiana Board of Health are attached. 

(Attachment 6). 

Request 20. Copies of all standards and guidelines   

for Title VI and section 504 compliance promulgated by 

each region and the Office for Civil Rights. 

Response 20: Defendant Califano objects to this request 
  

except insofar as it relates to Region V and the Central 

Office standards and guidelines for site selection on Title VIX 

and §504. The reason for this objection is that to produce 

such materials for all regions would be unduly burdensome and 

would not lead to relevant evidence. Region V standards 

and guidelines for Title VI are encompassed in the response 

 



® al 
to Interrogatory 8. The letter to Wilmington Medical 

   
Center of July 5, 1977 represents the written policy of the 

Office of Civil Rights in the Title VI and §504 area. 

(Attachment 7) 

Request 21. Report of HEW issued February 23, 1977 
  

which designated Gary, Indiana is an area of critical 

health manpower shortage; 

Response 21: The report, dated February 25, 1977, which 
  

to the best of the defendant's knowledge, is the one referred 

to in this request is attached. (Attachment 8) 

Request 22. Any report, communication, memoranda or 
  

document relating to or concerning report or investigation 

of Alfred Sanchez, HSSB, OCR, HEW, Region V on or about 

May 14, 1973 concerning the identification by HEW of urban 

hospitals within Chicago where intended, actual or 

proposed relocations would result in decreased accessibility 

3 s — > * [3 . 

+0 health care bv minorities: 

  

3. Copies of State Agency guidelines, standards 
  

and methods of administration of the Indiana State Board 

of Health relating to state agency functions under Title VI, 

Section 504, Section 1122 of the Social Security Act, and 

the Hill-Burton Program. 

Response 23: Attached is a copy of the Methods of 
  

Administration of the Indiana State Board of Health to 

assure compliance with Title VI of the Civil Rights Act 

of 1964. (Attachment 6) We are not aware that the Indiana 

State Board of Health has any Methods of Administration to 

assure compliance with Section 504, nor are there Methods of 

Administration specifically designed to assure compliance 

with Civil Rights statutes in the administration of Section 

1122 of the Social Security Act and the Hill-Burton Program. 

 



  

OF COUNSEL: 

JEFFREY CHAMPAGNE 
U.S. Department of Health, 

Education and Welfare 

MARVIN G. GARVIN 

Regional Attorney 

EDWARD IL. KQVEN 

Assistant Regional Attorney 
Department ¢f Health, 

Education and Welfare 
300 South Wacker Drive 
18th Floor 
Chicago, 

re 

B, mde tn — 

* 
oul QAd a0, TO Salencts [+L 2x 
BARBARA ALLEN BABCOCK Jo 

Assistant Attorney General 

  

  nt? 

  

RICHARD L. KIESER 

United States Attorney 

  

FRED W. GRADY 

Assistant United States Attorney 

Noma G2 Joe de Ll, 
  

DENNIS G. LINDER ’ 

Nr {LO 2% Ave, 
  

REBECCA L. ROSS 

Attorneys for Defendants 
Attorneys, Department of Justice 
Washington, D. C. 20530 
Telephone: 739-2230 

 



® * 
CERTIFICATE OF SERVICE 

  

  

I certify that copies of Response of Defendant Joseph 

A. Califano to Plaintiffs' Request For Production, Inspection 

and Copying of Documents and Response to Plaintiffs' First Set 

of Interrogatories have been served this 

  

|]4h day of 
  

August, 1977 by mailing postage prepaid to: 

Ms. Beth Lief 
Mr. Jack Greenberg 

Mr. Melvyn Leventhal 
10 Columbus Circle 
New York, New York 10019 

Mr. Julian Allen 
2009 Broadway 
Gary, Indiana 46407 

Ms. Marilyn G. Rose 
Ms. Christine B. Hickman 
1757 N Street, N.W. 
Washington, D.C. 20036 

Mr. Bruce E., Sayers 
Hodges, Davis, Greenberg, Compton 

& Sayers 
5525 Broadway 
Gary, Indiana 46401 

Kipton Kaplan 
Executive Director, Northern Indiana 

Comprehensive Health Services 
Agency, Inc. 

900 East Colfax Avenue 
South Bend, Indiana 46617 

Michael Schaefer 
Assistant Attorney General 

of Indiana 
219 State House 
Indianapolis, Indiana 46204 

Chl R (\V) : 
SN AE a 25 
  

REBECCA L. ROSS 

 



K 
\ 

PLAN 
(4 
> ARTERL i 

~4 
{ 

ry 77 R= 
oy S055 207 1ST QUARTE   

™ rr TT /mor 
a s 

mv 

ioe) 
NO 

n 
[iy 4 

> 
BSL 

i 
(7 

i 

~ m™ ~*7T OTTATTION 
0 TR I, TRIE CA ( 

TTY TY 
LY a3 

rgd 
INVEST] L TION INVESTIGAT 

/ 
EVIEY/ nT 

Ne TCTION TIDTIN 
IRISDYT J Y Lol) 1 

rrr Tr 
-E A Nr hd         

arnoaya ld Bil... 
~ 
J   

3 > 
LR © APR Gn 
BE Ea)     

REET at. GFF _T   

14 

x 
B
3
6
 

E
L
 

™ ~ 
N42 

~ 
v1 

! 
3 

I
T
N
 
E
N
T
 

 
 

    

| |     

ent) 
- 

~ym™M 
~~ [9 LO 

4     
§ ToYWE 

FEL lows 

JAA Cor. on) ACNE NOAA 

oDp 
i 

 



ATTA [ENT   

OUARTERLY PLAN - PRE-GRANT   

The pre-grant reviews, conducted by H&SS do not lend themselves to the 

format proposed for the Quarterly Plan. "irst, the identit vy of the 

recipient is ante aati the application is received. Secondly, all 

reviews are generally concluded within 30 Calendar days. Thirdly, ali 

are reviewed for compliance with Title VI. Fourthly, since we do not 

have the applications yet, thev have no log number. Thercfore, I 

submit the following as a moxe meaningful Quarterly Plan for 

reviews. 

PROJECTIONS FOR PRE-GRANTS   

TYPE OCTOBER NOVEMBER DIZCEMBER 

Hill-Burton 

Medicare fd
 

I
O
N
 

Federal Property 
RDRS 

TOTAL 

U8
) 

un
 | 

wu
 

NO
 

PROJECTED ALLOCATION OF TIME IN HOURS 
    

  

OCTOBER NOVEMBER DECEMBER TOTAL 

146 227%. 132 504 

 



4 
a
 

- 

S
o
n
 

i 
Y 
2
0
 

| 

o 7 
  

  

 



 
 

HR2'ST Jo Se. hl 

 



Ih AT 
S440 a) OF RECIPIENT 
  

Illinois Dept of 

ildren & Family 

brvices 

ishard Memorial 

yspital 

ginaw County 

sntal Health Ctr, 

innesota Dept of 

ublic Welfare 

George Hospital 

brporation 

bcial Development 

linois Dept of 

sblic Aid 

HEALTH AND SOCIAL Gin 
REGION 

AOP QUARTERLY 
OCR, 

3RD QUARTER - 

COMPLAINT IDENTIFICATION 

DATA/LOG NUMBER AND DATE 

OF RECEIPT 

WWICES BRANCH . 

Vv 

PLAN 

FY 77 

AREA OF 

JURISDICTION 

DATE 

or 

OF INITIATION 

REVIEW/ INVESTIGATION 

PROJECTED 

DATE ‘CF 

COMPLETION 

INVESTIGATION NEGOT 

PROJECT. 

DATE C ~~ 
Ta Tr 
aE 

  
      

  

  

Complaint 

Complaint 

Review 

Review 

Complaint 

Complaint 

Complaint 

Complaint 

p 
  

  

Burgos (05761007) 

June 14, 1976 

Ekanem (05762008) 

05769698 

05769699 

COMPRAND 

August 25, 

(05761008) 

1976 

Concerned Citizens 

(05766001) 

August 3, 1976 

Gary Human Relations 

Commission (05762009) 

September 29, 1976 

(05761038) 

1975 

Perdomo 

December 12,   

Title VI 

National 

Title VI 

Title VI 

National 

Pile VI 

Title VI 

Race 

Title VT 

National 

Title VI 

Race 

Title VI ~- 

National Origin 

November 1, 

November 16, 

January 3, 

September 8, 

December 12, 

January 15,   
August 21, 19 

1976 

August 16, 1976 

1976 

76 

1977 

1976 

1976 

1976   

April 29,1977 

April 29, 

April-15, 

3277 April-l, 

May 30, 1977 

April 15, 1977 

June 30, 1977   
  

e project that we will receive approximately 230 Pre-Grants will he which require 644 hours to process.  



  

a 

Fri PLA 

REGICH 7 

COMPLIANCE REVIEWS AND 

  
  

I. Elementary & Second 

Sorvices 

A. Completint RB 

on 10/1/76 

  

     



FY 1977 AUNUAL OFZRA . 

COMPLATINIT INVE > 

Tis ff Pursuant to Title VI, Title IX, Public Health Service Act and E.O. 11246 JL 
3 

¥ 

Inventory 
  

Actions 

      

Elesientary and 

Secondary Education 

Higher Education 

jer Complaints 

mentary and g 
econdary Education 

4 
3 
4 

5 
'4 

h 

Es 
A 
1 
3 

  FY 1677 Complaints 

Higher Educaticn 

  

        
  

     



  

FY 1977 ANNUAL OFZRATING PLAY 

COMPLIANCE REVIEWS AND OTH=R 

Actions 
  

mpleting Reviews in Progress 
on 10/1/76 

l. State Agency Reviews 

Liew Actions 

l. Pre-grant Clearnaces 
(Title VI) 

Other Institutions .ani Azencies 

Employment 
  

Total - All Compliance Review 

Reeapitulation for Compliance 

Total - All Compliance Reviews 

    

  

 



g . 

  

{ WEDNESDAY, MAY 4, 1977 

| PART IV 

e 
  
  

  
  

  

hy
 | 

  

i li
 

a i   
  
  

€= DEPARTMENT OF 
HEALTH, 

EDUCATION, AND 
WELFARE 

Office of the Secretary 

I 
jy
 

Di
 

f 
Ji
 

m 
b 

J
i
 

NONDISCRIMINATION 
ON BASIS OF 
HANDICAP 

{ 
il
, 

2 

me
 

ll
 

Programs and Activities Receiving or 

Ji 1 | 

Benefiting from Federal Financial 

Assistance 

 



    

    

22694 

tion as unnecessary. They are clearly com- 
prehended by the more general sections ban- 

ning discrimination. 
Section 84.62(c) is a new section requiring 

recipient hospitals to establish a procedure 
for effective communication with persons 
with impaired hearing for the purpose of 
providing emergency health care. Although it 
would be appropriate for a hospital to fulfill 
its responsibilities under this section by hav- 
ing a full-time interpreter for the deaf on 
staff, there may be other means of accom- 
plishing the desired result of assuring that 
.some means of communication is immedi- 
ately available for deaf persons needing 

emergency treatment. 

Section 84.52(d), also a new provision, re= 
quires recipients with fifteen or more em- 
ployees to provide appropriate auxiliary aids 

for persons with impaired sensory, manual, 

or speaking skills. Further, the Director may 

require a small provider to furnish auxiliary 

alds where the provision of aids would not 

adversely affect the ability of the recipient to 

provide its health benefits or services. Thus, 

although a small nonprofit neighborhood 

clinic might not be obligated to have avail 

able an- interpreter for deaf persons, the 

RULES AND REGULATIONS 

Director may require provision of such aids 
as may be resonably available to ensure that 
qualified handicapped persons are not denied 
appropriate benefits or services because of 

their handicaps. 
37. Treatmeni of Drug Addicts and Alco- 

holics. Section 84.63 is a new section that 
prohibits discrimination in the treatment 
and admission of drug and alcohol addicts 
to hospitals and outpatient facilities. This 
section is included pursuant to section 407, 
Public Law 92-255, the Drug Abuse Office 
and Treatment Act of 1972 (21 U.S.C. 1174), 
as amended, and section 321, Public Law 
91-616, the Comprehensive Alcohol Abuse 
and Alcoholism Prevention, Treatment, and 
Rehabilitation Act of 1970 (42 U.S.C. 4581), 
as amended, and section 321, Public Law 
03-282. Section 504 itself also prohibits such 
discriminatory treatment and, in addition, 
prohibits similar discriminatory treatment 
by other types of health providers. Section 
84.53 prohibits discrimination against drug 
abusers by operators of outpatient facilities, 
despite the fact that section 407 pertains 
only to hospitals, because of the broader ap- 
plication of section 504. This provision does 
not mean that all hospitals and outpatient 

facilities must treat drug addiction and 
alcoholism. It simply means, for example, 
that a cancer clinic may not refuse to treat 
cancer patients simply because they are also 

alcoholics. 

38. Education of institutionalized persons. 
The regulation retains § 84.54 of the pro- 

posed regulation that requires that an ap- 
propriate education be provided to qualified 
handicapped persons who are confined to 
residential institutions or day care centers. 

SUBPART G—PROCEDURES 

In § 84.61, the Secretary has adopted the 
title VI complaint and enforcement proce- 
dures for use in implementing section 504 
until such time as they are superseded by 
the issuance of a consolidated procedural 
regulation applicable to all of the civil rights 
statutes and executive orders administered 

by the Department. 

APPENDIX B—ENFORCEMENT PROCEDURES 

Sections 80.6-80.10 and Part 81 of Title 45 

of the Code of Federal Regulations are re- 

printed here without change for the conven- 

ience of the reader: 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 4, 1977 

   



§ 80.6 Compliance information. 

(a) Cooperation and assistance. The 
responsible Department official shall to 
the fullest extent practicable seek the 
cooperation of recipients in obtaining 
compliance with this part and shall pro- 
vide assistance and guidance to reciplents 
to help them comply voluntarily with 
this part. 
_(b) Compliance reporis. Each recipi- 

ént shall keep such records and sunmit fo 
the responsibie Department official or his 
designee timely, complete and accurate 
compliance reports at such times, and in 
such form and containing such informa- 
tion, as the responsible Department offi- 
cial or his designee may determine to be 
necessary to enable him to ascertain 
whether the recipient has complied or is 
complying with this part. For example, 
recipients should have available for the 
Department racial and ethnic data 
showing the extent to which members of 
minority groups are beneficiaries of and 
participants in federally-assisted pro- 
grams. In the case of any program under 
which a primary recipient extends Fed= 
eral financial assistance to any other re- 
cipient, such other recipient shall also 
submit such compliance reports to the 
primary recipient as may be necessary to 

enable the primary recipient to carry 

out {ts obligations under this part. 

{c) Access fo sources of information. 
Each recipient shall permit access by 

the responsible Department official or 

his designee during normal business 
hours to such of its books, records, ac- 

counts, and other sources of informa- 

tion, and its facilities as may be per- 

tinent to ascertain compliance with this 

part. Where any information required 
of a recipient is in the exclusive pos- 
session of any other agency, institution 
or person and this agency, institution 
or person shall fail or refuse to furnish 
this information the recipient shall so 
certify in its report and shall set forth 
what efforts it has made to obtain the 
information. Asserted considerations of 
privacy or confidentiality may not op- 
erate to bar the Department from 
evaluating or secking to enforce com- 
pliance with this Part. Information of a - 
confidential nature obtained in connec- 
tion with compliance evaluation or en- 
forcement shail not be disclosed except 
where necessary in formal enforcement 
proceedings or where otherwise required 
by law. 

RULES AND REGULATIONS 

(d) Information to beneficiaries and 
participants, Each recipient shall make 
available to participants, benecficiaries, 
and other interested persons such in- 
formation regarding the provisions of 
this regulation and its applicability to 
the program for which the reciplent re= 
ceives Federal financial assistance, and 
make such information available to 
them in such manner, as the responsi- 
ble Department official finds necessary 
to apprise such persons of the protec- 
tions against discrimination assured 
them by the Act and this regulation. 
(Sec. 801, 6802, Clvil Rights Act of 1964: 78 
‘Stat. 252; 43 U.S.C. 2000d, 2000d-1) [29 FR 
168208, Dec. 4, 1964, as amended at 32 FR 
14555, Oct. 19, 1967; 38 FR 17681, 17082, 
July 8, 1873} Y 

§ 80.7 Conduct of investigations. 

(a) Periodic compliance reviews. The 
responsible Department official or his 
designee shall from time to time review 
the practices of recipients to determine 
whether they are complying with this 
part. 

(b) Complaints. Any person who be- 
eves himself or any specific class of 
individuals to be subjected to discrimi- 
nation prohibited by this part may by 
himself or by a representative file with 
the responsible Department official or 
bis designee & written complaint. A 

complaint must be filed not later than 

180 days from the date of the alleged dis- 

crimination, unless the time for filing is 

extended by the responsible Department 

official or his designee. 

= {¢) Investigations. The responsible 

Department official or his designee will 

make a prompt Investigation whenever 

& compliance review, report, complaint, 

«vr any other information indicates a 
possible failure to comply with this part. 
The investigation should include, whers 
appropriate, a review of the pertinent 
practices and policies of the recipient. 
the circumstances under which the pos- 
sible noncompliance with this part oc¢- 
‘curred, and other factors relevant to a 
determination as to whether the recipl- 
ent has falled to comply with this part. 

(d) Resolution of matters. (1) If an 
investigation pursuant to paragraph (¢) 
of this section indicates a failure to com- 
ply with this part, the responsible De- 
partment official or his designee will so 
inform the reciplent and the matter will 
be resolved by informal means whenever 
possible, If it has been determined that 
the matter cannot be resolved by infor 
mal means, action will be taken as pro- 
vided for In § 80.8. 

(2) If an investigation does not war- 
rant actlon pursuant to subparagraph 
(1) of this paragraph the responsible 
Department official or his designee will 
50 inform the recipient and the com- 
plainant, if any, in writing. 

{e) Intimidatory or retaliatory acts 
prohibited. No recipient or other person 
sball intimidate, threaten, coerce, or . 
discriminate against any individual for 
the purpose of interfering with any right 
or privilege secured by section 601 of the 
Act or this part, or because he has mads 
a complaint, testified, assisted, or par- 
ticipated in eny manner In an investi ° 
gation, proceeding or hearing under 
this part. The Identity of complainants 

22695 

shall be kept confidential except to the 
extent necessary to carry out the pur- 
poses of this part, including the conduct 
of any investigation, hearing, or judicial 
proceeding arising thereunder. 
(Sec. 803, 602, Civil Rights Act of 1964; 78 
Stat. 262; 43 U.S.C. 2000d, 2000d-1) [20 FR 
16208, Dec. 4, 1984, as amended at 38 FR 
17981, 17982, July 5, 1973} 

.§ 80.8 Procedure for effecting compli. 
ance. 

(a) General. If there appears to be a 
{allure or threatened failure to comply 
with this regulation, and if the noncom=- 
pliance or threatened noncompliance 
cannot be corrected by informal means, 
compliance with this part may be effected 
by the suspension or termination of or 
refusal to grant or to continue Federal 
financial assistance or by any other 

means authorized by law. Such other 

means may inciude, but are not limited 
to, (1) a reference to the Department of 
Justice with a recommendation that ap- 
propriate proceedings be brought to en- 
force any rights of the United States 
under any law of the United States (in=- 
cluding other titles of the Act), or any 
assurance or other contractual under- 
taking, and (2) any applicable proceed= 
ing under State or local law. 

(b) Noncompliance with § 80.4. If an 
applicant fails or refuses to furnish an. 
assurance required under § 80.4 or other= 
wise falls or refuses to comply with a 
requirement imposed by or pursuant to 
that section Federal financial assistance 
may be refused in accordance with the 
procedures of paragraph (¢) of this sec- 
tion. ‘The Department shall not be re- 
quired to provide assistance in such a 
case during the pendency of the admin- 
{stretive proceedings under such para- 
graph except that the Department shall 
continue assistance during the pendency 
of such proceedings where such assiste 
ance is due and payable pursuant to an 
application therefor approved prior to 
the effective daie of this part. 

{c) Termination of or refusal io grant 
or to continue Federal financial assist- 
ance. No order suspending, terminating 
or refusing to grant or confinue Federal 
financial assistance shall become effec 
tive until (1) the responsible Depart- 
ment official has advised the applicant or 
recipient of his failure to comply and has 
determined that compliance cannot be 
secured by voluntary means, (2) there 
has been an express finding on the rec- 
ord, after opportunity for hearing, of 
a failure by the applicant or recipient 
to comply with a requiremens imposed 
by or pursuant to this part, (3) the ex- 
piration of 30 days after the Secretary 
has filed with the commitiee of the House 
and the committee of the Senate having 
legislative jurisdiction over the program 
involved, 8 full written report of the 
circumstances and the grounds for such 
action. Any action to suspend or ter- 
minate or to refuse to grant or to con- 
tinue Federal financisgl assistance shall 
be limited to the particular political en~ 
tity, or part thereof, or other applicant 

or recipient 83 to whom such a finding has 

heen made and shall be limited in its 

effect to the particular program, or part 

thereof, in which such noncompliance 
hes been so found. 

(d) Other means authorized by law, 

No action to effect compliance by any 

other means authorized by law shall 

be taken until (1) the responsible De- 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 4, 1977 

 



    

  

122696 

partment official has determined that 
compliance cannot be secured by vol- 
untary means, (2) the recipient or other 

- person has been notified of its failure to 
comply end of the action to be taken to 
effect compliance, and (3) the expirae 
tion of at least 10 days from the mailing 
of such notice to the recipient or other 
person. During this period of at least 
10 days additional efforts ghall be made 
to persuade the recipient or other person 
to comply with the regulation and to 
take such corrective action as may be 
appropriate. ? 

(Sec. 601, 602, Civil Rights Act of 1964: 78 
Stat. 252; 42 U.S.C. 2000d, 2000d-1. Sec. 182, 
80 Stat. 1209; 42 U.S.C. 20004-5) [29 FR 
16208, Dec. 4, 1964, as amended at $2 FR 

145566, Oct. 19, 1067; S8 FR 17982, July b, 
1678] 

§ 80.9 Hearings. 
(a) Opportunity for hearing. When- 

ever an opportunity for a hearing is re- 
quired by § 80.8(c), reasonable notice 
shall be given by registered or certified 
mail, return receipt requested, to the 
affected applicant or recipient. This no- 
tice shall advise the applicant or recip- 
{ent of the action proposed to be taken, 
the specific provision under which the 
proposed action against it is to be taken, 
and the matters of fact or law asserted 
as the basis for this action, and either 
(1) Aix a date not less than 20 days after 
the date of such notice within which the 
applicant or recipient may request of the 
responsible Department official that the 
matter be scheduled for hearing or (2) 
advise the applicant or recipient that the 
matter in question has been set down for 
hearing at a stated place and time, The 
time and place so fixed shall be reason 
ghls and shall be subject to change for 
cause. The complainant, if any, shall be 
advised of the time and place of the 
hearing. An applicant or recipient may 
waive 8 hearing and submit written in- 
formation and argument for the record. 
The fajlure of an applicant or recipient 
to request a hearing for which a date 
has been set shall be deemed to be a 
waiver of the right to a hearing under 

section 602 of the Act and § 80.8(¢c) of 
this regulation and consent to the mak- 

ing of a decision on the basis of such 
information as may be filed as the record. 

(b) Time and place of hearing. Heare 
ings shall be held at the offices df the 
Department in Washington, D.C, at a 

time fixed by the responsible Department 
official unless he determines that the 

convenience of the applicant or recipient 
or of the Department requires that an- 
other place be selected. Hearings shall 
be held before a hearing examiner des= 
fgnated in accordance with § U.S.C. 3105 
and 3344 (section 11 of the Administra- 
tive Procedure Act). 

(¢) Right to counsel. In all proceed- 
ings under this section, the applicant or 
recipient and the Department shall have 
the right to be represented by counsel. 

(d) Procedures, evidence, and record. 
(1) The hearing; decision, and any ad- 
ministrative review thereof shall be con- 
ducted in conformity with sections 5-8 
of the Administrative Procedure Act, and 
in accordance with such rules of proce- 
dure as are proper (and not inconsistent 
with this section) relating to the con- 
duct of the hearing, giving of notices 

RULES AND REGULATIONS 

subsequent to those provided for in para- 
graph (a) of this section, taking of testi 
mony, exhibits, arguments and briefs, re- 
quests for findings, and other related 
matters. Both the Department and the 
applicant or recipient shall be éntitled 
to introduce all relevant evidence on the 
issues as stated in the notice for hearing 
or as determined by the officer conduct- 
ing the hearing at the outset of or during 
the hearing. Any person (other than a 
Government employee considered to be 
on official business) who, having’ been 
invited or requested to appear and testify 
28 a witness on the Government's behalf, 
attends at a time and place scheduled 
for a hearing provided for by this part, 
may be reimbursed for his travel and’ 
actual expenses of attendance in an 
amount not to exceed the amount pay- 
able under the standardized travel regu- 
lations to 8 Government employee 
traveling on official business. 

(2) Technleal rules of evidence shall 
not apply to hearings conducted pursu- 
ant to this part, but rules or principles 
designed to assure production of the most 
credible evidence available and to sub- 
ject testimony to test by cross-examina- 

tion shall be applied where reasonably 
necessary by the officer conducting the 
hearing. The hearing officer may ex=- 

clude irrelevant, Immaterial, or unduly 
repetitious evidence, All documents and 
other evidence offered or taken for the 
record shall be open to examination by 
the parties and opportunity shall be 
given to refute facts and arguments ad-- 
vanced on either side of the issues. A 

transcript shall be made of the oral evi- 
dence except to the extent the substance 
thereof is stipulated “for the record. 
All decislons shall be based upon the 
hearing record and written findings shall 
be made. 

(e) Consolidated or Joint Hearings. 
In cases in which the same or related 
facts are asserted to constitute non- 
compliance with this regulation with re 
spect to two or more programs to which 
this part applies, or noncompliance with 
this part and the regulations of one or 
more other Federal departments or agen- 
cles issued under Title VI of the Act, the 
responsible Department official may, by 
agreement with such other departments 
or agencies where applicable, provide for 
the conduct of consolidated or joint 
hearings, and for the application to such 
hearings of rules of procedures not in- 
consistent with this part. Final decisions 
in such cases, insofar as this regulation 
is concerned, shall be made in accordance 
with § 80.10. 
(Sec. 603, Civil Rights Act of 1964: 78 Stat. 
263; 42 U.S.C. 2000d-1) [29 FR 16298, Dec. 4, 
1984, as amended at S32 FR 14555, Oct. 19, 

1867; $8 FR 17981, 17982, July 8, 1973] 

§ 80.10 Decisions and notices. 

(a) Decisions by hearing examiners. 
After a hearing is held by a hearing ex- 
eminer such hearing examiner shall 
either make an initial decision, if so ay- 
thorized, or certify the entire record in- 
cluding his recommended findings and 
proposed decision to the reviewing au- 
thority for a final decision, and a copy 
of such Initial decision or certification 
shall be mailed to the applicant or re- 
ciplent and to the complainant, if any. 

Where the initial decision referred to in 
this paragraph or in paragraph (¢) of 
this section is made by the hearing ex- 
aminer, the applicant or reciplent or the 
counsel for the Department may, within 
the period provided for in the rules of 
procedure issued by the responsible De- 
partment official, file with the reviewing 
authority exceptions to the initial deci- 
sion, with his reasons therefor. Upon 
the filing of such exceptions the review- 
ing authority shall review the initial de- 
cision and issue its own decision thereof 
including the reasons therefor. In the 
absence of exceptions the initial decision 
shall constitute the final decision, sub- 

ject to the provisions of paragraph (e) 
of this section. 

(b) Decisions on record or review by 
the reviewing authority, Whenever a rec- 

ord is certified to the reviewing authority 

for decision or it reviews the decision of 
a hearing examiner pursuant to para- 
graph (a) or (¢) of this section, the ap- 
plicant or recipient shall be given rea- 
sonable opportunity to file with it briefs 
or other wriiten statements of its con- 
fentions, and a copy of the final decision 
of the reviewing authority shall be given 
in writing fo the applicant or recipient 
ard to the complainant, if any, 
_(e) Decisions on record where @ hearing 

{s waived. Whenever a hearing is walved 
pursuant fo § 80.9(a) fhe reviewing au- 
thority shall make its final decision on 
the record or refer the matter to a hear- 
ing examiner for an initial decision to be 
made on the record. A copy of such de- 
cision shall be given in writing to the 
applicant or recipient, and to the com- 
plainant, if any. ; 

(d) Rulings required. Each decision of 
a hearing examiner or reviewing author- 
ity shall set forth a ruling on each find- 
ing, conclusion, or exception presented, 
and shall identify the requirement or re- 
quirements imposed by or pursuant to 
this part with which {t is found that 
the applicant or recipient has failed to 

comply. 
(e) Review in certain cases by the 

Secretary. If the Secretary has not per- 
sonally made the final decision referred 
to in paragraphs (a), (b), or (c) of this 
section, a recipient or applicant or the 
counsel for the Department may request 
the Secretary to review a decision of the 
Reviewing Authority in accordance with 

rules of procedure {issued by the re- 
sponsible Department official. Such: re- 

view is not a matter of right and shall be 

granted only where the Secretary deter- 

mines there are special and important 

reasons therefor. The Secretary may 

grant or deny such request, in whole or 

fn part. He may also review such 2 deci- 

sion upon his own motion in accordance 

with rules of procedure issued by the re- 

sponsible Department official. In the ab- 

sence of a review under this paragraph, a 

final decision referred to in paragraphs 

(a), (b), (c) of this section shall become 

the final decision of the Department 

when the Sccretary transmits it as such 

to Congressional committees with the re- 

port required under section 602 of the 

Act. Failure of an applicant or recipient 
to file an exception with the Reviewing 

Authority or to request review under this 

paragraph shall not be deemed a failure 

to exhaust administrative remedies for 

the purpose of obtaining judicial review. 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 4, 1977 

  

|



E
E
 

(f) Content of orders. The final deci- 

sion may provide for suspension or termi- 

nation of, or refusal to grant or continue 

Federal financial assistance, in whole or 

in part, to which this regulation applies, 

and may contain such terms, conditions, 

and other provisions as are consistent 

with and will effectuate the purposes of 

the Act and this regulation, including 

provisions designed to assure that no 

Federal financial assistance to which this 

regulation applies will thereafter be ex- 

tended under such law or laws to the 

applicant or recipient determined by 

such decision to be in default in its per- 

formance of en assurance given by it pur- 

suant to this regulation, or to have other- 

wise failed to comply with this regulation 

unless and until it corrects its noncom- 

pliance and satisfles the responsible De=- 

partment 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 restored 

to full eligibility to receive Federal fi- 

nancial assistance if it satisfies the terms 

and conditions of that order for such 

eligibility or if it brings itself into com- 

pliance with this part snd provides 

reasonable assurance that it will fully 

comply with this part. An elemen- 

tary or secondary school or school sys- 

tem which is unable to file an assurance 

of compliance with § 80.3 shall be re- 

stored to full eligibility to receive Federal 

financial assistance, if it filles a court 

order or a plan for desegregation which 

meets the requirements of § 80.4(¢), and 

provides reasonable assurance that it 

will comply with the court order or plan. 

(2) Any applicant or recipient ad- 

versely affected by an order entered pur- 

suant to paragraph (f) of this section 

may at any time request the responsible 

Department official to restore fully its 

eligibility to receive Federal financial as- 

glstance. Any such request shall be sup- 

ported by information showing that the 

applicant or recipient has met the re- 

quirements of subparagraph (1) of this 

paragraph. If the responsible Depart 

ment official determines that those re- 

quirements have been satisfied, he shall 

restore such eligibility. 

(3) If the responsible Department of- 

ficial denies ny such request, the ap- 

plicant or recipient may submit a request 

for & hearing in writing, specifying why 

it believes such official to have been in 

error. It shall thereupon be given 80 

expeditious hearing, with a decision on 

the record, In accordance with rules ot 

procedure issued by. the responsible De- 

pariment official, The applicant or recip- 

{ent will be restored to such eligibility if 

it proves at such hearing that it satisfied 

the requirements of subparagraph (1) 

of this paragraph. While procecdings 

under this paragraph are pending, the 

sanctions imposed by the order issued 

under paragraph (f) of this section shall 

remain in effect. : 

(Sec. 603, Civil Rights Act of 1064; 78 Stat. 

252; 42 U.8.C. 2000d-1) [29 FR 16298, Dec. 4, 

1064, as amended at 32 FR 14558, Oct. 19, 

1067; 38 FR 17981, 17982, July 5, 1973] 

RULES AND REGULATIONS 

PART 81—PRACTICE AND PROCEDURE 
FOR HEARINGS UNDER PART 80 OF 
THIS TITLE 

Subpart A—General Information 
Sec. 
81.1 Scope of rules. 

81.2 Records to be public. 
81.8 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 from hearing for miscone 

duct, 

Subpart C—Partles 

81.21 Parties; General Counsel deemed @& 
party. 

81.22 Amici curiae, 
81.28 Complainants not parties, 

Subpart D—Form, Execution, Service and Filing 
of Documents 

81.21 Form of documents to be filed, 
81.3% Signature of documents, 

81.83 Filing and service. 
81.34 Service—how msde, 
81.85 Date of service. 
81.38 Certificate of service. 

Subpart E—Time 

81.41 Computation. 
81.43 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. 

81.58 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 officer, 

Subport H—Hearing Procedures 

81.71 Btatement of position and trial 

briefs. 
81.72 REvidentiary purpose. 4 

81.73 Testimony, 
81.74 Exhibits, 
81.76 = Affidavits, 
81.768 Depositions, 
81.77 Admissions as to facts and docu- 

ments. : 
81.78 Evidences. 
81.79 Cross-examination. 

81.80 Unsponsored written material, 

81.81 Objections, 

81.83 ‘Exceptions to rulings of presiding 

officer unnecessary, 

81.83 Official notice, 
81.84 Public document items, 
81.85 Offer of proof. 
81.86 Appeals from ruling of presiding 

officer. 

Subpart |—The Record 

81.01 Official transcript. 
8192 Record for decision. 

Subpart J—Posthearing Procedures, D 

81.101 Posthearing briefs: proposed findings 
apd conclusions. : 

81.102 Decisions following hearing. 
91.183 Exceptions to initial or recommended 

decisions 

81.104 Final decisions. 
81.105 Oral argument to ths reviewing 

: authority. 
81.108 Review by the Secretary. 
81.107 Service on amici curiss, 

  

22697 

Subpart X—Judicial Standards of Practice 

81.111 Conduct. 
81.112 Improper conduct. 
81.113 Ex parte communications, 
81.114 Expeditious treatment. 

81.115 Matters Dot prohibited. 
81.118 Filing of ex parte communications. 

Subpart L—Posttermination Proceedings 

81.121 Posttermination progeedings, 

Subpart M—Definitions 

81.131 Definitions, 

AvTHORITY: The provisions of this Part 81 
are issued under 6 US.C. 80 ia 1 and 456 CFR 

Sourcz: The provisions of this Part 81 
eppear at 32 F.R, 15158, Nov. 3, A 

otherwise noted. gn Hales 

Subpart A—General Information 
§ 81.1 Scope of rules, 

The ‘rules of procedure in 
supplement §§ 80.9 and 80.10 2 his Pans 
title and govern the practice for hear- 
ings, decisions, and administrative ré- 
view conducted by the Department of 
Hezlth, Education, and Welfare, pursu- 
ip Tns VI 3 the Civil Rights Act of 
He Ari 8 Stat. 252) and Part 80 

§ 81.2 Records to he public. 

All pleadings, correspondence - 
its, transcripts of testimony, ath 
briefs, decisions, and other documents 
filed in the docket in any proceeding may 
be inspected and copied in the office of 
the Civil Rights hearing clerk. Inquiries 
may be made at the Central Information 
Center, Department of Health, Educa- 
tion, and Welfare, 330 Independence 
Avenue SW., Washington, D.C. 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 mascu- 
line gender may be applied to females or 
organizations, 

§ 81.4 Suspension of rules. 

Upon notice to all parties, the review- 
ing authority or the presiding officer, 
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—Appazarance and Practice 

§ 81.11 Appearance, 

A party may appear in person or by 
counsel and participate fully in any pro- 
ceeding. A State agency or a corporation 
may appear by any of its officers or by 
any employee it authorizes to appear on 
fts 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 representa- 
tive capacity in any proceeding may be 
required to show his authority to act in 
guch capacity. 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 4, 1977 

 



  

    

  

22698 

§ 81.13 Exclusion from hearing for mis. 
conduct. 

Disrespectful, disorderly, or contumae- 
clous language or contemptuous conduct, 
refusal to comply with directions, or 
continued use of dilatory‘tactics by any 

person at any hearing before a presiding 

officer shall constitute grounds for im. 

mediate exclusion of such person from 

the hearing by the presiding officer. 

Subpart C—Parlies 

§ 81.21 Parties; General Counsel decmed 
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 name 

ing him as respondent. 
(b) The General Counsel of the De- 

partment of Health, Education, and Wel- 
fare shall be deemed a party to all 
proceedings. 

§ 81.22 Amici curiae. 

(a) Any interested person or organi- 
zation may file a petition to participate in 
a proceeding as an amicus curiae. Such 
petition shall be filed prior to the pre- 
hearing 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 petitioner has a legitimate in- 
terest in the proceedings, that such par- 
ticipation will not unduly delay the out- 
come, and may contribute materially to 
the proper disposition thereof. An amicus 
curiae’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 lmits applicable 
to the party whose position he deems 
himself to support; or if he does not 
deem himself to support the position of 
any party, within the longest time limit 
applicable to any party at that particular 
stage of the proceedings. 

(¢) When all parties have completed 
their initial examination of a witness, 
any amicus curiae may request the pre- 
siding officer to propound specific ques- 
tions to the witness. The presiding officer, 
in his discretion, may grant any such 
request if he believes the proposed addi- 
tional testimony may assist materially 
in elucidating factual matters at issue be- 
tween the parties and will not expand 
the issues, 

§ 81.23 Complainanis not parties. 

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, 

RULES AND REGULATIONS 

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 

ghall show the title, if any, and address 

of the signatory. Copies need not be 
signed but the name of the person sign- 
ing the original shall be reproduced. 
Documents shall be legible and shall not 
be more than 8% inches wide and 12 

inches long. 

§ 81.32 Signature of documents. 

The signature of a party, authorized : 
officer, employee or attorney constitutes 
a certificate that he has read the docu- 
ment, 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 the 
proceeding may proceed as though the 
document had not been filed. Similar ac= 
tion may be taken if scandalous or ine 

decent matter is inserted. 

§ 81.33 Filing and service. 

All notices by a Department official, 
and all written motions, requests, peti- 
tions, memoranda, pleadings, exceptions, 
briefs, decisions, and correspondence to 
@ Department official from a party, or 
vice verse, relating to a proceeding after 
its commencement shall be filed and 
served on all parties. Parties shall supply 
the original and two copies of documents 
submitted for filing. Filings shall be 
made with the Civil Rights hearing clerk 
at the address stated in the notice of 
hearing or notice of opportunity for 
hearing, during regular business hours. 
Regular business hours are every Mon- 
day through Friday (legal holidays in 
the District of Columbia excepted) from 
® am. to 5:30 p.m., eastern standard or 
daylight saving time, whichever is efiec- 
tive in the District of Columbia at the 
time. Originals only of 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 sttorney or other representative, 
service upon such attorney or represent- 
ative will be deemed service upon the 

party or amicus. Documents served by 

mall preferably should be mafled in suf- 
ficient time to reach the addressee by 

the date on which the originel 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 US. 
mail or is delivered in person, except 
that the date of service of the initial 
notice of hearing or opportunity for 

hearing shall be the date of its delivery, 

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 attorney or rep= 

resentative, stating that such service has 
been made, the date of service, and the 
manner of service, whether by mall or 

personal delivery. 

Subpart E—Time 

§ 81.41 Computation, 

In computing any period of time un- 
der the rules in this part or in an order 
issued hereunder, the time begins with 
the day following the act, event, or de=- 
fault, 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 Satur- 
days, Eundays, and legal holidays shall 
be excluded from the computation. 

§ 81.42 Exiension 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 permitted, 

if made promptly. 

§ 81.43 Reduction of time to file docu- 
ments. 

For good cause, the reviewing author- 
ity or the presiding officer, with respect 
‘to matters pending before them, may re- 
duce any time limit prescribed 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 opportunity 
for hearing. 

Proceedings are commenced by mailing 
8 notice of hearing or opportunity for 
bearing to an affected applicant or re- 
ciplent, pursuant to § 80.9 of this title, 

§ 81.52 Answer 10 notice. 

The respondent, applicant or recipient 
may file an answer to the notice within 
20 days after service thereof. Answers 
shall admit or deny specifically and in 
detail each allegation of the notice, une 
less the respondent party is without 
knowledge, in which case his answer 
should so state, and the statement will 
be deemed a denial, Allegations of fact 
in the notice not denied or controverted 
by answer shall be deemed admitted. 

‘FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 4, 1977 

  

  

 



Matters alleged as afirmative defenses 

shall be separately stated and numbered. 

Failure of the respondent to file an 

- answer within the 20-day period follow- 

ing service of the notice may be deemed 

an admission of all matters of fact recited 

in the notice, ? 

§ 81.53 Amendment of notice or answer, 

The Ceneral Counsel may amend the 

notice of hearing or opportunity for 

hearing once as a matter of course before 

an answer thereto is served, and each 

respondent may amend his answer once 

as 8 matter of course not lafer 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 emended notice within the time 

remaining for filing 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 officer 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 8 

separate document, may request a hesr- 

ing. 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 information as is avail 
able. 

£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 Fed- 
eral departments or agencies, by agree- 

ment with such other departments or 
agencies. All parties to any proceeding 
consolidated subsequently to service of 
the notice of hearing or opportunity for 
hearing shall be promptly served with 
notice of such consolidation. 

§ 81.56 Motions. 

Motions and petitions shall state the 
relief sought, the authority relied upon, 
and the facts alleged. If made before or 
after the hearing, these matters shall be 
in writing. If made at the hearing, they 
may be stated orally; but the presiding 
officer may require that they be reduced 
to writing and filed and served on all par- 
ties in the same manner as 8 formal mo- 
tion. Motions, answers, and replies shall 
be addressed to the presiding officer, if 
the case is pending before him, A repeti- 
tious motion will not be entertained. 

§ 81.57 . Responses to motions and petl- 
- tions. 

Within 8 days after a written motion 
or petition is served, or such other period 
as the reviewing suthorkty or the pre- 
gliding officer may fix, any party may file 
a response thereto. An immediate oral 
response may be made to an oral motion, 

RULES AND REGULATIONS 

§ 81.58 Disposition of motions and pe- 

titions, 

The reviewing authority or the presid= 

ing officer may not sustain er grant & 

written motion or petition prior to ex- 

piration of the time for filing responses 

thereto, but may overrule or deny such 

motion or petition without awaiting 

response: Provided, however, That pre=- 

hearing conferences, hearings and de- 

cisions need not be delayed pending 

disposition of motions or petitions. Oral 

motions and petitions may be ruled on 

{mmediately. Motions and petitions sub- 

mitted to the reviewing authority or the 

presiding officer, respectively, and not 

‘disposed of in separate rulings or In 

thelr respective decisions will be deemed 

denied. Oral arguments shall not be held 

on written motions or petitions unless 

the presiding officer in his discretion ex- 

pa OC Responsibilities and 
Duties of Presiding Officer 

§ 81.61 Who presides. 

A hearing examiner assigned under § 
U.S.C. 3105 or 3344 (formerly sec, 11 of 
the Administrative Procedure Act) shall 
preside over the taking of evidence in 
any hearing to which these rules of pro- 

cedure apply. 

§ 81.62 Designation of hearing exam- 
iner, 

The designation of the hearing exami= 
ner as presiding officer shall be in writing, 
and shall specify whether the examiner 
is to make an initial decision or to certi- 
fy the entire record including his recom=- 
mended findings and proposed decision 
‘to the reviewing authority, and may also 
fix the time and place of hearing. A copy 
of such order shall be served on all par- 
ties. After service of an order designat- 
ing a hearing 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, another 
hearing examiner may be designated 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 avold delay, and 
to maintain order. He shall have all pow=- 
ers necessary to these ends, including 
(but not limited to) the power to: 

(a) Arrange and issue notice of the 
date, time, and place of hearings, or, up- 

on due notice to the parties, to change 
the date, time, and place of hearings 
previously set. : 

(b) Hold conferences to settle, simpli 
fy, or fix the issues in a proceeding, or 
to consider other matters that may ald 
in the expeditious disposition of the 
proceeding. 

(¢) Require parties and amicl curiae 
to state thelr position with respect to the 
various Issues in the proceeding. 

(d) Administer oaths and affirmae- 
tions, 

(e) Rule on motions, and other pro- 
cedural items on matters pending befors 
him, 

(!) Regulate the course of the hearing 
and conduct of counsel therein, 

(g) Examine witnesses and direct 
witnesses to testify, 

22699 

(h) Receive, rule on, exclude or limit 
evidence. . 

(1) Fix the time for filing motions, pe- 
titions, briefs, or other items {n matters 
pending before him, 

(J) Issue initial or recommended de- 
cisions. > 

(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 Siatement of position and trial 
briefs. : 

The presiding officer may require par- 
tiles and amici curiae to fille written 
statements of position prior to the-be- 
ginning of 8 hearing. The presiding of- 
ficer may also requre the parties to sub- 
mit 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 pro- 
ceeding. Argument will not be received 
in evidence: rather it should be presented 
in statements, memoranda, or briefs, as 
determined by the presiding officer. Brief 
opening statements, which shall be lim- 
ited to statement 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 is- 
sues of fact must be resolved in order to 
determine whether the respondent has 
failed to comply with one or more appli- 
cable 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 answer, or from his 
admissions .or stipulations 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 under § 81.101. Thereafter 
the proceedings shall go to conclusion in 
accordance with Subpart J of this part. 
The presiding officer may allow an appeal 
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 officer, in his 
discretion, may require or permit that 

the direct testimony of any witness pe 
prepared in writing and served on all 
parties in advance of the hearing. Such, 
testimony may be adopted by the witness 
at the hearing, and filled as part of the 
record thereof. Unless authorized by the 
presiding officer, witnesses will not be 
permitted to read prepared testimony 
into the record. Except as provided in 
§8 81.75 and 81.76, witnesses shall be 
available at the hearing for cross- 
examination, 

Pn FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 4, 1977 

 



  

§ 81.74 Exhibits, 

Proposed exhibits shall be exchanged 
at the prehearing conference, or othire 
wise prior to the hearing if the presiding 
officer so requires. Proposed exhibits not 
80 exchanged may be denied admission as 
evidence. The authenticity of all pro- 
posed exhibits exchanged prior to hearing 
will be deemed admitted unless written 
objection thereto is filed prior to the 
hearing or unless good cause is shown at 
the hearing for failure to file such written 
objection. 

§ 81.75 Affidavits, 

An affidavit is not inadmissible as such, 
Unless the presiding officer fixes other 
time periods afidavits 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 & party may 
file and serve written objection 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 re- 
celved in evidence unless the affiant is 
made available for cross-examination, or 
the presiding officer determines that 
cross-examination is not necessary for 
the full and true disclosure of facts re- 
ferred to in such assertions. Notwith- 
standing any objection, however, affl- 
davits may be considered in the case of 
any respondent who walves 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 docu. 
ments, 

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 documents 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 matters of which an admis- 
sion is requested shall be deemed ad- 
mitted, unless within 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 motion and notice) the party to 
whom the request is directed serves upon 
the requesting party a sworn statement 
either denying specifically the matters 
of which an admission is requested or 
setting forth in detail the reasons why 
he cannet truthfully elther admit or deny 
such matters. Coples of requests for ad- 
mission and answers thereto shall be 
served on all parties. Any admission made 
by a party to such request is only for the 
purposes of the pending proceeding, or 
any proceeding or action instituted for 
the enforcement of any order entered 
therein, and shall not constitute an ad- 
mission by him for any other purpose or 
be used against him in any other pro- 
ceeding or action. 

RULES AND REGULATIONS 

§ 81.78 Evidence, 

Irrelevant, immaterial, unreliable, 
and unduly repetitious evidence will be 
excluded. 

§ 81.79 Cross-examination. 

A witness may be cross-examined on 

any matter material to the proceeding 
without regard to the scope of his direct 
examination. 

§ 81.80 Unsponsorcd written material. 

Yetters expressing views or urging ac- 

tion and other unsponsored written ma- 

terial regarding matters in issue in a 
hearing will be placed in the correspond- 

ence section of the docket of the proceed- 

ing. These data are not deemed part of 
the evidence or record in the hearing. 

§ 81.81 Objections. 

Objections to evidence shall be timely 
and briefly state the ground relied upon. 

381.82 Exceptions to rulings of presid- 
ing 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 objection 
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 appearing 
in the evidence of record, any ‘party, on 
timely request, shall be afforded an op- 
portunity to show the contrary. 

§ 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 executive’ 
departments (or their subdivisions), 
legislative agencies or committees, or ad- 
ministrative agencies of the Federal Gov- 
ernment (including Government-owned 
corporations), or a similar document is- 
sued by a State or its agencies, and such 
document (or part thereof) has been 
shown by the offeror to be reasonably 
available to the public, such document 
need not be produced or marked for 
identification, but may be offered for of- 
ficial 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 exclud- 
ing 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 evi- 
dence in documentary or written form 
or of reference to documents or records, 
8 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 presid- 
ing officer. 

Rulings of the presiding officer may 

not be appealed to the reviewing suthori- 

ty prior to his consideration of the en- 

tire proceeding except with the consent 

of the presiding officer and where he cer- 

tifles on the record or in writing that 

the allowance of an interlocutory appeal 

is clearly necessary to prevent excep- 

tional 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 re- 
viewing authority within such period as 
the presiding officer directs. No -oral 
argument will be heard unless the re= 
viewing authority directs otherwise. At 
any time prior to submission of the pro- 
ceeding to it for decision, the reviewing 
authority may direct the presiding officer 
to certify any question or the entire rec- 
ord 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 of- 
ficial reporter for all hearings. The of- 
ficial transcripts of testimony taken, to- 
gether with any exhibits, briefs, or 
memoranda of law filed therewith shall 
be flled with the Department. Transcripts 
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 by the contract 
between the Department and tte re- 
porter. Upon notice to sll parties, the 
presiding officer may authorize correc- 
tions to the transcript which involve mat- 
ters of substance, 

§ 81.92 Record for decision. 

The transcript of testimony, exhibits, 
and all papers and requests filed in the 
proceedings, except the correspondence 
section of the docket, including rulings 
and any recommended or initial decision 
shall constitute the exclusive record for 
decision. 

Subpart J—Posthearing Procedures, 
Decisions 

“g 81.101 Posthearing briefs: proposed 
findings and conclusions, 

(a) The presiding officer shall fix the 
time for filing posthearing briefs, which 
may contain proposed findings of fact 
and conclusions of law, and, if permitted, 
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 post- 

hearing briefs has expired, the presiding 

officer shall certify the entire record, in- 

cluding his recommended findings and 

proposed decision, to the responsible De- 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 4, 1677 

   



  

partment 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 recom. 
mended 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 review- 

ing authority. Any other party may file 
& response thereto within 30 days after 
the mailing of the decision. Upon the 
filing of such exceptions, the reviewing 
authority shall review the decision 3nd 
issue its own decision thereon. 

§ 81.104 Final decisions, 

(a) Where the hearing is conducted 
by a hearing examiner who makes an 
initial decision, if no exceptions thereto 
are filed within the 20-day period speci. 
fled in § 81.103, such decision shall be- 
come the final decision of the Depart 
ment, and shall constitute “final agency 
action” within the meaning of § US.C. 
704 (formerly section 10(c) of the Ad- 
ministrative Procedure Act), subject to 
the provisions of § 81.108, 

(b) Where the hearing is conducted 
by a hearing examiner who makes a rec- 
ommended decision, or upon the filing 
of exceptions fo a hearing examiner's 
initial decision, the reviewing authority 
shall review the recommended or initial 
decision and shall issue its own decision 
thereon, which shall become the final de- 
cision of the Department, and shall con- 
stitute “final agency 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, 

(c) All final decisions shall be 
Dromply served on all parties, and amici, 

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 
exceptions to an initial or recommended 

decision, he shall make such request in 

writing. The reviewing authority may 

grant or deny such requests in its dis- 
cretion. If granted, it will serve notice 
of oral argument on all parties, Ths 
notice will set forth the order of pres- 

entation, the amount of time allotted, 

end the time and place for argument. 
The names of persons wno will argue 
should be filled with the Department 
hearing clerk not later than 7 days be- 
fore the date set for oral argument. 

(b) The purpose of oral argument is 
to emphasize and clarify the written ar- 
gument in the briefs. Reading at length 
fromm the brief or other texts is not 
favored. Participants should confine 
their arguments to points of controlling 
importance and to points upon which 
exceptions have been flled. Consolida- 
tions of appearances at oral argument 
by parties taking the same side will per- 
mit the parties’ interests to be presented 
more effectively in the time allotted, 

RULES AND REGULATIONS 

(c) Pamphlets, charts, and other 
written material may be presented at 
oral argument only if such material i8 
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 decision 

becomes a final decision pursuant to 
§ 81.104(a) br within 20 days of the mail-~ 
ing of a final decision referred to in 

§ 81.104(b), as the case may be, a party 
may request the Secretary to review 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 review upon his own motion, 

each party to the decision shall have 

- 20 days following notice of the Secre=- 

tary's proposed action within which to 

file exceptions to the decision and sup- 

porting briefs and memoranda, or briefs 

and memoranda in support of the decl- 

sion. Failure of a party to request review 

under this paragraph shall not be 

deemed a failure to exhaust admin- 

istrative remedies for the purpose of 
obtaining Judicial review. 

§ 81.107 Service on amici curiae. 

All briefs, exceptions, memoranda, re- 
quests, 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 

§8L111 Conduct 

Parties and thelr 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, unscemly wrane- 
gling, or intemperate accusations or 
characterizations. A representative of 
any party whether or not a lawyer shall 
observe the traditional responsibilities of 
lawyers as officers of the court and use 
his best efforts to restrain his client from 
fmproprieties in connection with a 
proceeding. : 
§ 81.112 Improper conduct. 

With respect to any proceeding it is 
finproper for any interested person to at- 
tempt to sway the judgment of the re- 
viewing authority by undertaking to 
bring pressure or Influence to bear upon 
any officer having a responsibility for a 
decision in the proceeding, or his decl- 
sional staff. It is improper that such in= 
terested persons or any members of the 
Department's staff or the presiding offi- 
cer glve statements to coramunicalions 
media, by pald advertisement or other 
wise, designed to influence the judgment 
of any officer having a responsibility for 
8 decision in the proceeding, or his de- 

= 

cisional staff, It is improper for any per- 

son to solicit communications to any 

such officer, or his decisional staff, other 

than proper communications by parties 
or amicl curiae. : 

§ 81.113 Ex parte communications. 

Only persons employed by or assigned 

to work with the reviewing authority who 
perform no investigative or prosecuting 

function in connection with a proceeding 

shall communicate ex parte with the re- 
viewing authority, or the presiding offi- 

cer, or any employee or person involved 

in the decisional process in such proceed- 

ings with respect to the merits of that or 

a factually related proceeding. The re- 

viewing authority, the presiding officer, 
or any employee or person involved in the 

decisional process of & 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 pros- 

ecuting function in connection with the 
proceeding. . 

§ 81.114  Expeditious treatment. 

Requests for expeditious treatment of 
matters pending before the responsible 
Department official or the presiding offi- 
cer are deemed communications 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 Datters not prohibited. 

A request for information which mere- 
ly inquires about the status of a pro- 
ceeding without discussing issues or ex- 
pressing points of view is not deemed an 
ex parte communication. Such requests 
should be directed to the Civil Rights 
hearing clerk. Communications with re- 
spect to minor procedural matters or in- 
quiries or emergency requests for ex- 
tensions -of time are not deemed ex parte 
communications prohibited by § 81.113. 
Where feasible, however, such communi- 
cations should be by letter with copies to 
all parties. Ex parte communications be- 
tween a respondent and the responsible 
Department official or the Secretary with 
respect to securing such. respondent's 
voluntary compliance with any require- 
ment of Part 80 of this title are not pro- 
hibited. 

§ 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 
fn the case and will not be considered 
as part of the record for decision. If the 
prohibited cominunication is received 
orally, a memorandum setting forth its 
substance shall be made and filed in the 

correspondence section of the docket in 

the case. A person referred to in such 

memorandum may fille a comment for 

inclusion in the docket if he considers the 

memorandui to be Incorrect. 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 4, 1977 

 



   
22702 

Subpart L—Posttermination 
Proceedings 

§ 81.121 Posttermination proceedings. 

(a) An applicant or recipient ad- 

versely affected by the order terminating, 

discontinuing, or refusing Federal finan- 
cial assistance In consequence of proceed- 
ings pursuant to this title may request 
the responsible Department official for an 
order authorizing payment, or permitting 
resumption, 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 detail, the steps 
which it has taken to achieve such com- 
plance. If the responsible 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 official to have been in error, 
The request for such a hearing shall be 
addressed to the responsible Department 

- official and shall be made within 30 days 
after the applicant or recipient is in- 
formed that the responsiole Department 
official has refused to authorize payment 
or permit resumption of Federal financial 

assistance. 

(b) In the event that a hearing shall 
be requested pursuant to subparagraph 

(a) of this section, the hearing proce- 
dures established by this part shall be 

applicable to the proceedings, except as 

otherwise 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 in- 
cludes the Secretary of Health, Educa- 
tion, and Welfare, 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 REGISTER. 

(b) These rules shall apply to any 

proceeding or part thereof to which Part 

80 of this title as amended effective Oc- 

tober 19, 1967 (published in the FepERAL 

" REecisTER for Oct. 19, 1967), and as the 

same may be hereafter amended, applies. 

In the case of any proceeding or part 
thereof governed by the provisions of 

Part 80 as that part existed prior to such 

amendment, the rules in this Part 81 

shall apply as if these amendments were 
not in effect. 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 4, 1977 

RULES AND REGULATIONS 

[FR Doc.77-12620 Filed 4-28-77;4:35 pm] 

 



   

  

29676 

Title 45—Public Welfare 

SUBTITLE A—DEPARTMENT OF HEALTH, 
EDUCATION, AND WELFARE, GENERAL 
ADMINISTRATION 

PART 84—NONDISCRIMINATION ON THE 
BASIS OF HANDICAP IN PROGRAMS 
AND ACTIVITIES RECEIVING CR BENE- 
FITING FROM FEDERAL FINANCIAL 
ASSISTANCE 

AGENCY: Department of Health, Edu- 
cation, and Welfare. 

ACTION: Final rule. : 

SUMMARY: This regulation implements 
section 504 of the Rehabilitation Act of 
1973, 29 U.S.C. 706, with regard to fed- 
eral financial assistance administered by 
the Department of Health, Education, 
and Welfare. Section 504 provides that 
‘no otherwise qualified handicapped in- 
dividual * * * shall, solely by reason of 
his handicap, be excluded from the.par- 
ticipation in, be denied the benefits of, 
or be subjected to discrimination under 
anhy program or activity receiving federal 
financial assistance.” The regulation, 
which applies to all recipients of fed- 
eral assistance from HEW, is intended 
to ensure that their federally assisted 
programs and activities are operated 
without discrimination on the basis of 
handicap. The regulation defines and 
forbids acts of discrimination against 
qualified handicapped persons in em- 
ployment and in the operation of pro- 
grams and activities receiving assistance 
irom the Department. As employers, re- 
cipients must make reasonable accom- 
modation to the handicaps of applicants 
and employees unless the accommodation 
would cause the employer undue hard- 
ship. As providers of services, recipients 
are required to make programs operated 
in existing facilities accessible to handi- 
capped persons, to ensure that new fa- 
cilities are constructed so as to be read- 
ily accessible to handicapped persons, 
and to operate their programs in a non- 
discriminatory manner. 

EFFECTIVE DATE: June 3, 1977. 

FOR FURTHER INFORMATION, CON- 
TACT: 

John Wodatch, Director, Office of New 
Programs, Office for Civil Rights, De- 
partment of Health, Education, and 
Welfare, Washington, D.C. 20201, 202- 
245-1821. 

SUPPLEMENTARY INFORMATION: 

BACKGROUND 

_ As part of the Rehabilitation Act of 
1973 (Public Law 93-112) Congress en- 
acted section 504, which provides that 
“no otherwise qualified handicapped in- 
dividual in the United States, as defined 
in section 7(6), shall, solely by reason 
of his handicap, be excluded from the 
participation in, be denied the benefits 
of, or be subjected to discrimination un- 
der any program or activity receiving 
Federal financal assistance.” In the same 
statute, Congress defined the term 

“handicapped individual” solely with 

relationship to employment; section 7(6) 

of the 1973 Act defined the term “handi- 

FEDERAL REGISTER, 

RULES AND REGULATIONS 

capped individual” as “any individual 
who (a) has a physical or mental disa- 
bility which for such individual consti- 
tutes or results in substantial handicap 
to employment and (b) can reasonably 
be expected to benefit in terms of em- 
ployability from vocational rehabilita- 
tion services * * *.” However, the fol- 
lowing year, in section 111(a) of the Re- 
habilitation Act Amendments of 1974 
(Public Law 93-516), Congress amended 
the definition of ‘handicapped individ- 
ual” for purposes of section 504 and the 

- other provisions of titles IV and V of the 
Rehabilitation Act so that the definition 
is no longer limited to the dimension of 
employability. For purposes of section 504 
of the Act, a “handicapped individual” 
is defined as “any person who (A) has a 
physical or mental impairment which 
substantially limits one or more of such 
person’s major life activities, (B) has a 
record of such an impairment, or (C) is 
regarded as having such an impair- 
ment.” With this amended definition, it 
became clear that section 504 was in- 
tended to forbid discrimination against 
all handicapped individuals, regardless 
of their need for or ability to benefit from 
vocational rehabilitation services. 

Section 504 thus represents the first 
Federal civil rights law protecting: the 
rights of handicapped persons and re- 
flects a national commitment to end dis- 
crimination on the basis of handicap. 
The language of section 504 is almost 
identical to the comparable nondiscrim- 
ination provisions of title VI of the Civil 
Rights Act of 1964 and title IX of the 
Education Amendments of 1972 (apply- 
ing to racial discrimination and to dis- 
crimination in education on the basis 
of sex). It establishes a mandate to end 
discrimination and to bring handicapped 
persons into the mainstream of American 
life. The Secretary intends vigorously to 
implement and enforce that mandate. 

THE PROBLEM OF DISCRIMINATION 

From the outset, the Department has 
recognized that the problem of ending 
discrimination on the basis of handicap 
presents considerations that are ex- 
tremely complex. The diversity of types 
of handicaps, as well as the wide variety 
of settings in which programs financed 
by the Department are offered, make the 
task of prescribing general rules of non- 
discriminatory treatment a difficult one. 

There is overwhelming evidence that 
in the past many handicapped persons 
have been excluded from programs en- 
tirely or denied equal treatment, simply 
because they are handicapped. But elim- 
indting such gross exclusions and denials 
of equal treatment is not sufficient to as- 
sure genuine equal opportunity. In draft- 
ing a regulation to prohibit exclusion and 
discrimination, it became clear that dif- 
ferent or special treatment of handicap- 
ped persons, because of their handicaps, 
may be necessary in a number of con- 
texts in order to ensure equal oppor- 
tunity. Thus, for example, it is meaning- 
less to “admit” a handicapped person in 
a wheelchair to a program if the program 
is offered only on the third floor of a 
walk-up building, Nor is one providing 

equal educational opportunity to a deaf 
child by admitting him or her to a class= 
room but providing no means for the 
child to understand the teacher or receive 
instruction. 

These problems have been compounded 
by the fact that ending discriminatory 
practices and providing equal access to 
programs may involve major burdens on 
some recipients. Those burdens and costs, 
to be sure, provide no basis for exemption 
from section 504 or this regulation: Con- 
gress’ mandate to end discrimination is 
clear. But it is also clear that factors of 
burden and cost had to be taken into 
account in the regulation in prescribing 

-the actions necessary to end discrimina- 
tion and to bring handicapped persons 
into full participation in federally fi- 
nanced programs and activities. 

The very general language of section 
504 itself and the scant legislative history 
surrounding its enactment provide little 
guidance as to how these complex issues 
should be resolved. The rulemaking proc- 
ess in which the Department has en- 
gaged has, however, provided a basis for 
an initial resolution of those issues. The 
Secretary believes the resulting regu- 
lation offers genuine promise of provid- 
ing an éffective and workable program 
for ending discrimination against handi- 
capped persons. 

RULEMAKING HISTORY 

On May 17, 1976, the Department pub- 
lished a Notice of Intent to Issue Pro- 
posed Rules, seeking public comment on 
fifteen identified critical issues. 41 FR 
20296. A draft proposed rule was attached 
to the Notice of Intent, as was a state- 
ment of the estimated economic and in- 
flationary impact of the draft proposal, 
prepared in accordance with the require- 
ments of Executive Order 11821. 

Over three hundred written comments 
were received in response to the Notice of 
Intent. The written comments were sup- 
plemented by a series of ten meetings 
conducted by the Office for Civil Rights 
at various locations across the country. 

On July 16, 1976, the Department pub- 
lished a Notice of Proposed Rulemaking 
analyzing comments received on the 
critical issues identified in the Notice of 
Intent and setting forth a revised pro- 
posed regulation for public comment. 41 
FR 29548. The initial 60-day comment 
period was extended in response to nu- - 
merous requests until October 14, 1976. 
Additional comments received since that 
date have also been considered to the 
extent feasible. A total of more than 
700 comments were received in response 
to the July 168 Notice of Proposed Rule- 
making; they have been analyzed along 
with approximately 150 comments sent 
in response to May 17 Notice that were 
received too late to be analyzed during 
the first comment period. Finally, an 
additional twenty-two public meetings 
were held after publication of the 
July 16 Notice, again designed to inform 

. interested persons and organizations of 
the proposed regulation and to solicit 
their comments and recommendations. 
Transcripts of all these meetings were 
made and analyzed along with the writ- 

VOL. 42, NO. B6—WEDNESDAY, MAY 4, 1977 

  

  

  

  

 



  
  

  

ten comments. Copies of these tran- 
scripts, as well as the written comments, 
are avallable for public inspection in 
Room 5400, 330 Independence Avenue, 
S.W., Washington, D.C. 20201. 

The Secretary believes that both the 
written comments and the views ex- 
pressed at the public meetings have illu- 
minated the camplex issues involved in 
implementing section 504 in an efiective 
and workable fashion. The Secretary’s 
response to the comments of interested 
parties, and the explanation for changes 
in the proposed regulation, are set forth 
in the section-by-section analysis of 
each subpart of the regulation, which 
appears as Appendix. A to the regula- 
tion. As that analysis explains, a num- 
ber of provisions in the proposed regu- 
lation have been eliminated as duplica- 
tive or unnecessary; others have been 
shortened or clarified. The goal through- 
out has been to design a regulation that 
preserves the essential elements of a 
strong and effective program for ending 
discrimination, while avoiding the im- 
position of unnecessary or counterpre- 
ductive administrative obligations on 
recipients. 

OVERVIEW OF REGULATION 

The regulation is divided into seven 
subparts. Subpart A (General Provi- 
sions) defines the important terms that 
are used throughout the regulation and 
states .in general terms the discrimina- 
tory acts that are prohibited. It also sets 
forth what the Secretary believes is a 
simple, workable system of administra- 
tion: assurances of compliance, self- 
evaluation by recipients, establishment 
of grievance procedures, and notification 
of employes and beneficiaries of the reci- 
pient’s policy of mnondiscrimination on 
the basis of handicap. The regulation 
covers all types of physical and mental 
impairments, including drug addition 
and alcoholism. 

Subpart B, dealing with employment 
practices, bars discrimination by reci- 
pients of HEW assistance in recruit- 
ment, hiring, compensation, job assign- 
ment and classification, and fringe 
benefits. It also requires employers to 
make reasonable accommodation to 
qualified handicapped applicants or em- 
ployees unless it can be demonstrated 
that the accommodation would impose 
an undue hardship on the employer. 

Subpart C sets forth the central re- 
quirement of the regulation—program 
accessibility. All new facilities are re- 
quired to be constructed so as to be 
readily accessible to and usable by 
handicapped persons. Every existing fa- 
cility need not be made physically acces- 
sible, but all recipients must ensure that 
programs conducted in those facilities 
are made accessible. While flexibility is 
allowed in choosing methods that in fact 
make programs in existing facilities ac- 
cessible, structural changes in such faci- 
lities must be undertaken if no other 
means of assuring program accessibility 
is available. 

Subparts A, B, and C of the regula- 
tion, as well as subpart G—which incor- 
porates by reference the Department’s 

RULES AND REGULATIONS 

procedures under title VI of the Civil 
Rights Act of 1964—apply to all reci- 
pients of financial assistance from the 
Department. The remaining subparts of 
the regulation contain more specific re- 
quirements applicable to three major 
classes of recipients. 

Subpart D is concerned with preschool, 
elementary, and secondary education. 
Its provisions have been closely coordi- 
nated with those of the Education for 
All Handicapped Children Act of 19875 
(Pub. L. 94-142). They require, basically, 
that recipients operating public educa- 
tion programs provide a free appropriate 
education to each qualified handicapped 
child in the most normal setting appro- 
priate. The regulation also sets forth 
evaluation requirements designed to en- 
sure the proper classification and place- 
ment of handicapped children, and due 
process procedures for resolving dispute 
over placement of students. While the 
Department does not intend to review 
individual placement decisions, it does 
intend to ensure that testing and evalu- 
ation procedures required by the regula- 
tion are carried out, and that school sys- 
tems provide an adequate opportunity 
for parents to challenge and seek review 
of these critical decisions. And the De- 
partment will place a high priority on 
pursuing cases in which a pattern or 
practice of discriminatory placements 
may be involved. 

Subpart E deals with postsecondary 
education: It proscribes discrimination 
against handicapped persons in recruit- 
ment, admission and treatment after ad- 
mission. Colleges and universities are re- 
quired to make reasonable adjustments 
to permit handicapped persons to fulfill - 
academic requirements, and to ensure 
that they are not effectively excluded 
from programs because of the absence of 
auxiliary aids: Groups of colleges may 
‘not establish consortia exclusively for 
handicapped students. 

Finally, Subpart F deals with health, 
welfare and other social service pro- 
grams. It forbids discrimination in pro- 
viding such services and requires larger 
recipients to provide auxiliary aids to 
handicapped individuals where neces- 
sary. Specific provisions require hospi- 
tals not to discriminate against addicts 
or alcoholics who need medical services 
and to establish emergency room proce- 
dures for communication with persons 
with impaired hearing. Under Subpart 
C, health and social service providers 
may satisfy their program accessibility 
obligations with respect to existing fa- 
cilities by arranging to meet benefici- 
aries in accessible locations. In addition, 
small providers may refer patients or 
other beneficiaries to accessible provid- 
ers as a “last resort” alternative to mak- 
ing significant structural changes. 

ExeEcuTIVE ORDER 11914 

Under Executive Order 11914 (41 FR 
17871, April 28, 1978), the Department is 
required to issue general standards for 
other departments and agencies of the 
Federal government to follow in promul- 
gating regulations implementing Section 
504. This responsibility will be fulfilled 

22677 

promptly and independently from this 
regulation. The Department does, how- 
ever, expect to incorporate the definition 
of handicapped person adopted in § 84.3 
(j) of this regulation in the standards 
for determining what persons are cov- 
ered by the Act. The Secretary also an- 
ticipates that the relevant provisions of 
Subparts A, B and- C of the regulation 

- will be the basis for guidelines, pursuant 
to the Executive Order, as to what are 
discriminatory practices. 

Economic IMPACT 

The Department has previously certi- 
fied, in issuing the Notice of Intent and 
the Notice of Proposed Rulemaking, that 
the economic and inflationary impact of 
the proposed regulation had been care- 
fully evaluated in accordance with OMB 
Circular A-107. That analysis, which was 
printed at 41 FR 20312 (May 1%, 1976), 
has been revised and updated, and is 
available on request. 

SECTION-BY~-SECTION ANALYSIS OF. 
REGULATION 

Appended to the final regulation is a 
section-by-section analysis of the regu- 
lation, which describes the basis and pur- 
pose of each section, discusses significant 
comments, and explains the basis for 
any changes made from the proposed 
regulation published in July 1976. 

In consideration of the foregoing, Part 
84, to read as set forth below, is hereby 
ordered to be added to Title 45 of the 

Code of Federal Regulations. 

Dated: April 28, 1977. 

JosegrH A. CALIFANO, JT., 
Secretary, Department of 

Health, Education, and Welfare. 

Subpart A—General Provisions 

Sec. 
84.1 Purpose. 

84.2 Application. 
84.3 Definitions. 
84.4 Discrimination prohibited. 
84.5 Assurances required. 
84.6 Remedial action, voluntary action, 

and self-evaluation. 

84.7 Designation of responsible employee 
and adoption of grievance proced- 
ures. 

84.8 Notice. 

84.9 Administrative requirements for small 
recipients. 

84.10 Effect of state or local law or other re- 

quirements and effect of employ- 
ment opportunities. 

Subpart B—Employment Practices 

84.11 Discrimination prohibited. 
84.12 Reasonable accommodation. 
84.13 Employment criteria. 
84.14 Preemployment inquiries. 
84.15-84.20 [Reserved] 

Subpart C—Program Accessibility 

84.21 Discrimination prohibited. 
84.22 Existing facilities. 
84.23 New construction. 
84.24-84.30 [Reserved] 

Subpart D—FPreschool, Elementary, and 
Secondary Education 

84.31 Application of this subpart. 
84.32 Location and notification. 
84.33 Free appropriate public education. 
84.34 Educational setting. 
84.35 Evaluation and placement. 

FEDERAL REGISTER, VOL. 42, NO. 86-—WEDNESDAY, MAY 4, 1977 

 



   
22678 

Sec. 
84.36 Procedural safeguards. 
84.37 Nonaocademic services. 
84.38 Preschool and sdult education pro- 

grams. 
84.39 Private education programs. 

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 Drug and alcohol addicts. : 
84.54 Education of Iinstitutionallzed per- 

sons. 
84.55-84.60 [Reserved] 

Subpart G—Procedures 

84.61 Procedures. 

84.62-99 [Reserved] 

APPENDIX A—ANALYSIS OF FINAL REGULATION 

AUTHORITY: Sec. 504, Rehabilitation Act of 

1973, Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 
794); sec. 111 (a), Rehabilitation Act Amend- 
ments of 1974, Pub. L. 93-516, 88 Stat. 1619 

(29 U.S.C. 706); sec. 606, Education of the 
Handicapped Act (20 U.S.C. 1405), as 
amended by Pub. L. 94-142, 89 Stat 795; sec, 
321, Comprehensive Alcohol Abuse and Alco- 
holism Prevention, Treatment, and Rehabili- 
tation Act of 1970, 84 Stat. 182 (42 U.S.C. 
4581), as amended; sec. 407, Drug Abuse 
Office and Treatment Act of 1972, 88 Stat. 78 
(21 U.S.C. 1174), as amended. 

Subpart A—=General Provisions 

§ 84.1 Purpose. 

The purpose of this part is to effectu- 
ate section 504 of the Rehabilitation Act 
of 1973, which is designed to eliminate 
discrimination on the basis of handi- 
cap in any program or activity receiving 
Federal financial assistance, 

§ 84.2 Application. 

This part applies to each recipient of 
Federal financial assistance from the De- 
partment of Health, Education, and Wel- 
fare and to each program or activity that 
receives or benefits from such assistance. 

§ 84.3 Definitions. 

As used in this part, the term: 
(a) “The Act” means the Rehabilita- 

tion Act of 1973, Pub. L. 93-112, as 
amended by the Rehabilitation Act 
Amendments of 1974, Public Law 93-5186, 
29 U.S.C. 794. 

(b) “Section 504” means section 504 of 
the Act. 

(¢) “Education of the Handicapped 
Act” means that statute as amended by 
the Education for all Handicapped 
Children Act of 1975, Pub. L. 94-142, 20 
U.S.C. 1401 et seq. 

(d) “Department” means the Depart- 
ment of Health, Education, and Welfare. 

(e) “Director” means the Director of 
the Office for Civil Rights of the Depart- 
ment. 

(f) “Recipient” means any state or its 
political subdivision, any instrumentality 
of a state or its political subdivision, 

RULES AND REGULATIONS 

any public or private agency, institution, 
organization, or other entity, or any per=- 
son to which Federal financial assistance 
is extended directly or through another 
recipient, ‘including any successor, as- 
signee, or transferee of a recipient, but 
excluding the ultimate beneficiary of the 
assistance: 

(g) “Applicant for assistance” means 
one who submits an application, request, 
or plan required to be approved by a De~- 
partment official or by a recipient as a 
condition to becoming a recipient. 

(h) “Federal financial assistance” 
means any .grant, loan, contract other 
than a procurement contract or a con- 
tract of insurance or guaranty), or any 
other arrangement by which the Depart- 
ment provides or otherwise makes avail- 
able assistance in the form of: 

(1) Funds; 
(2) Services of Federal personnel; or 
(3) Real and personal property or any 

interest in or use of such property, in- 

cluding: 
(i) Transfers or leases of such prop- 

erty for less than fair market value or 
for reduced consideration; and 

(ii) Proceeds from a subsequent trans- 
fer or lease of such property if the Fed- 
eral share of its fair market value is not 
returned to the Federal Government. 

(1) “Facility” means all or any por- 
tion of buildings, structures, equipment, 
roads, walks, parking lots, or other real 
or personal property or interest in such 

property. 
(J) “Handicapped person.” (1) “Hand- 

icapped persons” means any person who 
(1) has a physical or mental impairment 
which substantially limits one or more 
major life activities, (il) has a record of 
such an impairment, or (iil) is re- 
garded as having such an impairment. 

(2) As used in paragraph (j) (1) of 

this section, the phrase: 

(i) “Physical or mental impairment” 

means (A) any physiological disorder or 

condition, cosmetic disfigurement, or 

anatomical loss affecting one or more of 

the following body systems: neuro- 

logical; musculoskeletal; special sense 

organs; respiratory, including speech or- 

gans; cardiovascular; reproductive, di- 

gestive; genito-urinary; hemic and 

lymphatic; skin; and endocrine; or (B) 

any mental or psychological disorder, 

such as mental retardation, organic brain 

syndrome, emotional or mental illness, 
and specific learning disabilities. 

(i) “Major life activities” means 
functions such as caring for one’s self, 
performing manual tasks, walking, see- 
ing, hearing, speaking, breathing, learn- 
ing, and working. 

(iii) “Has a record of such an impair- 
ment’ means has a history of, or has 
been misclassified as having, a mental 
or physical impairment that substan- 
tially limits one or more major life activi- 

ties. 

(iv) “Is regarded as having an im- 
pairment” means (A) has a physical or 
mental impairment that does not sub- 
stantially limit major life activities but 
that is treated by a recipient as consti- 
tuting such a limitation; (B) has a phy- 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 

sical or mental impairment that sub- 
stantially limits major life acitivities 
only as a result of the attitudes of others 
toward such impairment; or (C) has 
none of the impairments defined in 
paragraph (j) (2) (i) of this section but 
is treated by a recipient as having such 
an impairment. 

(k) “Qualified handicapped person” 
means: 

(1) With respect to employment, a 
handicapped person who, with reason- 
able accommodation, can perform the 
essential functions of the job in ques- 
tion; 

(2) With respect to public preschool. 
elementary, secondary, or adult educa- 
tional services, a handicapped person 
(i) of an age during which nonhandi- 
capped persons are provided such serv- 
ices, (ii) of any age during which it is 
mandatory under state law to provide 
such services to handicapped persons, or 
(iii) to whom a state is required to pro- 
vide a free appropriate public education 
under § 612 of the Education of the Han- 
dicapped Act; and 

(3) With respect to postsecondary and 
vocational education services, a handi- 
capped person who meets the academic 
and technical standards requisite to ad- 
mission or participation in the recipi- 
ent’s education program or activity; 

(4) With respect to other services, a 
handicapped person who meets the es- 
sential eligibility requirements for the 
receipt of such services. 

(1) “Handicap” means any condition 
or characteristic that renders a person 
a handicapped person as defined in para- 
graph (j) of this section. 

§ 84.4 Discrimination prohibited. 

(a) General. No qualified handicapped 
person shall, on the basis of handicap, 
be excluded from participation in, be 
denied the benefits of, or otherwise be 
subjected to discrimination under any 
program or activity which receives or 
benefits from Federal financial assist- 
ance, 

(b) Discriminatory actions prohibited. 
(1) A recipient, in providing any aid, 
benefit, or service, may not, directly or 
through contractual, licensing, or other 
arrangements, on the basis of handicap: 

(1) Deny a qualified handicapped per- 
"son the opportunity to participate in or 
benefit from the aid, benefit, or service; 

(ii) Afford a qualified handicapped 
person an opportunity to participate in 
or benefit from th2 aid, benefit, or serv- 
ice that is not equal to that afforded 
others; 

(iii) Provide a qualified handicapped 
person with an aid, benefit, or service 
that is not as effective as that provided 
to others; 

(iv) Provide different or separate aid, 
benefits, or services to handicapped per- 
sons or to any class of handicapped per- 
sons unless such action is necessary to 
provide qualified handicapped persons 
with aid, benefits, or services that are as 
effective as those provided to others; 

(v) Aid or perpetuate discrimination 
against a qualified handicapped person 

4, 1977 

  

  
  

A 
A
A
A
 

4 
e
r
o
 

A
m
 

 



  

by providing significant assistance to an 
agency, organization, or person that dis- 
criminates on the basis of handicap in 
providing any aid, benefit, or service to 
beneficiaries of the recipients program; 

(vi) Deny a qualified handicapped 
person the opportunity to participate as 
a member of planning or advisory boards; 
or 

(vii) Otherwise limit a qualified handi- 
capped person in the enjoyment of any 
right, privilege, advantage, or opportu- 
nity enjoyed by others receiving an aid, 

benefit, or service. ; 
(2) For purposes of this part, aids, 

benefits, and services, to be equally ef- 
fective, are not required to produce the 
identical result or level of achievement 
for handicapped and nonhandicapped 
persons, but must afford handicapped 
persons equal opportunity to obtain the 
same result, to gain the same benefit, or 
to reach the same level of achievement, 
in the most integrated setting appropri- 
ate to the person’s needs. 

(3) Despite the existence of separate 
or different programs or activities pro- 
vided in accordance with this part, a re- 
cipient may not deny a qualified handi- 
capped person the opportunity to partici- 
pate in such programs or activities that 
are not separate or different. 

(4) A recipient may not, directly or 
through contractual or other arrange- 
ments, utilize criteria or methods of ad- 
ministration (i) that have the effect of 
subjecting qualified handicapped persons 
to discrimination on the basis of handi- 
cap, (11) that have the purpose or effect 
of defeating or substantially impairing 
accomplishment of the objectives of the 
recipient’s program with respect to han- 
dicapped persons, or (iii) that perpetuate 
the discrimination of another recipient if 
both recipients are subject to common 
administrative control or are agencies of 
the same State. 

(5) In determining the site or loca- 
tion of a facility, an applicant for assist- 
ance or a recipient may not make selec- 
tions (i) that have the effect of exclud- 
ing handicapped persons from, denying 
them the benefits of, or otherwise sub- 
jecting them to discrimination under 
any program or activity that receives or 
benefits from Federal financial assist- 
ance or (ii) that have the purpose or ef- 
fect of defeating or substantially impair- 
ing the accomplishment of the objectives 
of the program or activity with respect 
to handicapped persons. 

(8) As used in this section, the aid, 
benefit, or service provided under a pro- 
gram or activity receiving or benefiting 
from Federal financial assistance in- 
cludes any aid, benefit, or service pro- 
vided in or through a facility that has 
been constructed, expanded, altered, 
leased or rented, or otherwise acquired, 
in whole or in part, with Federal finan- _ 
cial assistance. 

(¢) . Programs limited by Federal law. 
The exclusion of nonhandicapped per- 
sons from the benefits of a program lim- 
ited by Federal statute or executive order 
to handicapped persons or the exclusion 
of a specific class of handicapped persons 

FEDERAL 

RULES AND REGULATIONS 

from a program limited by Federal stat- 
ute or executive order to a different class 
of handicapped persons is not prohibited 
by this part. 

§ 84.5 Assurances required. 

(a) Assurances. An applicant for Fed- 
eral financial assistance for a program 
or activity to which this part applies 
shall submit an assufance, on a form 
specified by the Director, that the pro- 
gram will be operated in compliance with 
this part. An applicant may incorporate 
these assurances by reference in subse- 
quent applications 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 obligate 
the recipient or, in the case of a subse- 
quent transfer, the transferee, for the 
period during which the real property or 
structures are used for the purpose for 
which Federal financial assistance is ex- 
tended or for another purpose involving 
the provision of similar services or 

benefits. 
. (2) In the case of Federal financial 
assistance extended to provide personal 
property, the assurance will obligate the 
recipient for the period during which it 
retains ownership or possession of the 
property. 

(3) In all other cases the assurance 
will obligate the recipient for the period 
during which Federal financial assistance 
is extended. 

(¢c) Covenants. (1) Where Federal fi- 
nancial assistance is provided in the form 
of real property or interest in the prop- 
erty from the Department, the instru- 
ment effecting or recording this trans- 
fer shall contain a covenant running 
with the land to assure nondiscrimina- 
tion for the period during which the real 
property is used for a purpose for which 
the Federal financial assistance is ex- 
tended 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 include 
the covenant described in paragraph (b) 
(2) of this section in the instrument ef- 
fecting or recording any subsequent 
transfer of the property. 

(3) Where Federal financial assistance 
is provided in the form of real property 
or interest in the property from the De- 
partment, the covenant shall also in- 
clude a condition coupled with a right to 
be reserved by the Department to revert 
title to the property in the event of a 
breach of the covenant. If a transferee 
of real property proposes to mortgage or 
otherwise encumber the real property as 
security for financing construction of 
new, or improvement of existing, facili- 
ties on the property for the purposes for 
which the property was transferred, the 
Director may, upon request of the trans- 
feree and if necessary to accomplish 
such financing and upon such conditions 
as he or she deems appropriate, agree to 

REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 

22679 

forbear the exercise of such right to re- 
vert title for so long as the lien of such 
mortgage or other encumbrance re- 
mains effective. 

§ 84.6 Remedial action, voluntary ae- 
tion, and self-evaluation. 

(a) Remedial action. (1) If the Direc- 
tor finds that a recipient has discrimi- 
nated against persons on ‘the basis of 
handicap 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 handicap in violation of section 
504 or this part and where another re- 
cipient exercises control over the recip- 
ient that has discriminated, the Direc- 
tor, where appropriate, may require 
either or both recipients to take reme- 
dial action. 

(3) The Director may, where neces- 
sary to overcome the effects of discrimi- 
nation in violation of section 504 or this 
part, require a recipient to take remedial 
action (i) with respect to handicapped 
persons who are no longer participants 
in the recipient’s program but who were 
participants in the program when such 
discrimination occurred or (ii) with re- 
spect to handicapped persons who would 
have been participants in the program 
had the discrimination not occurred. 

(b) Voluntary action. A recipient may 
take steps, in addition to any action that 
is required by this part, to overcome the 
effects of conditions that resulted in 
limited participation in the recipient’s 
program or activity by qualified handi- 
capped persons. 

(¢) Self-evalution. (1) A recipient 
shall, within one year of the effective 
date of this part: 

(i) Evaluate, with the assistance of in- 
terested persons, including handicapped 
persons or organizations representing 
handicapped persons, 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 handi- 
capped persons or organizations repre- 
senting handicapped persons, any poli- 
cies and practices that do not meet the 
requirements of this part; and 

(iii) Take, after consultation with in- 
terested persons, including handicapped 
persons or organizations representing 
handicapped persons, appropriate reme- 
dial steps to eliminate the effects of any 
discrimination that resulted from adher- 
ence to these policies and practices. 

(2) A recipient that employs fifteen or 
more persons shall, for at least three 
years followed completion of the evalua- 
tion required under paragraph (¢) (1) of 
this section, maintain on file, make avail- 
able for public inspection, and provide to 
the Director upon request: (i) a list of 

“the interested persons consulted, (ii) a 
description of areas examined and any 
problems identified, and (iii) a descrip- 
tion of any modifications made and of 
any remedial steps taken. 

4, 1977 

 



  

22680 

'§ 84.7 Designation of responsible em- 
ployee and adoption of grievance 
procedures. 

(a) Designation of responsible em-= 
ployee. A recipient that employs fifteen 
or more persons shall desigriate at least 
one person to coordinate its efforts to 
comply with this part. 

(b) Adoption of grievance procedures. 
A recipient that employs fifteen or more 
persons shall adopt grievance procedures 
that incorporate appropriate due process 
standards and that provide for the 
prompt and equitable resolution of com- 
plaints alleging any action prohibited by 
this part. Such procedures need not be 
established with respect to complaints 
from applicants for employment or from 
applicants for admission to postsecond- 
ary educational institutions. 

~~ §84.8 Notice. 

(a) A recipient that employs fifteen 
or more persons shall take appropriate 
initial and continuing steps to notify 
participants, beneficiaries, applicants, 

~ and employees, including those with im- 
paired vision or hearing, and unions 
or professional organizations holding col- 
lective bargaining or professional agree- 
ments with the recipient that it does not 
discriminate on the basis of handicap in 
violation of section 504 and this part. The 
notification shall state, where appropri- 
ate, that the recipient does not discrim- 
inate in admission or access to, or treat- 
ment or employment in, its programs 
and activities. The notification shall also 
include an identification of the respon- 
sible employee designated pursuant to 
§ 84.7(a). A recipient shall make the ini- 
tial notification required by this para- 
graph within 90 days of the effective date 
of this part. Methods of initial and con- 
tinuing notification may include the 
posting of notices, publication in news- 
papers and magazines, placement of no- 
tices in recipients’ publication, and dis- 
tribution of memoranda or other written 
communications. 

(b) If a recipient publishes or uses re- 
cruitment materials or publications con- 
taining general information that it 
makes available to participants, bene- 
ficiaries, applicants, or employees, it shall 
include in those materials or publications 
a statement of the policy described in 
paragraph (a) of this section. A recipi- 
ent may meet the requirement of this 
paragraph either by including appro- 
priate inserts in existing materials and 
publications or by revising and reprint- 
ing the materials and publications. 

§ 84.9 Administrative requirements for 
small recipients. 

The Director may require any recipi- 
ent with fewer than fifteen employees, 

- or any class of such recipients, to comply 
with §8 84.7 and 84.8, in whole or in part, 
when the Director finds a violation of 

this part or finds that such compliance 

will not significantly impair the ability 
of the recipient or class of recipients to 
provide benefits or services. 

FEDERAL 

RULES AND REGULATIONS 

§ 84.10 Effect of state or local law or 
other requirements and effect of em- 
ployment opportunities. 

(a) The obligation to comply with this 
part is not obviated or alleviated by the 
existence of any state or local law or 
other requirement that, on the basis of 
handicap, imposes prohibitions or limits 
upon the eligibility of qualified handi- 
capped persons to receive services or to 
practice any occupation or profession. 

(b) The obligation to comply with this 
part is not obviated or alleviated be- 
cause employment opportunities in any 
occupation or profession are or may be 
more limited for handicapped persons 
than for nonhandicapped persons.. 

Subpart B—Employment Practices 

§ 84.11 

(a) General. (1) No qualified handi- 
capped person shall, on the basis of 
handicap, be subjected to discrimination 
in employment under any program Or 
activity to which this part applies. 

(2) A recipient that receives assistance 
under the Education of the Handicapped 
Act shall take positive steps to employ 
and dadvance in employment qualified 
handicapped persons in programs as- 

sisted under that Act. 
(3) A recipient shall make all decisions 

concerning employment under any pro- 
gram or activity to which this part ap- 
plies in a manner which ensures that 
discrimination on the basis of handicap 
oes not occur and may not limit, segre- 

gate, or classify applicants or employees 
in any way that adversely affects their 
opportunities or status because of 
handicap. 

(4) A recipient may not participate in 
‘a contractual or other relationship that 
has the effect of subjecting qualified 
handicapped applicants or employees to 
discrimiination prohibited by this sub- 
part. The relationships referred to in this 
subparagraph include relationships with 
employment and referral agencies, with 
labor unions, with organizations provid- 
ing or administering fringe benefits to 
employees of the recipient, and with 
organizations providing training and ap- 
prenticeship programs. 

(b) Specific activities, The provisions 
of this subpart apply to: 

(1) Recruitment, advertising, and the 
processing of applications for employ- 
ment; 

(2) Hiring, upgrading, promotion, 
award of tenure, demotion, transfer, lay- 
off, termination, right of return from lay- 
off, and rehiring; 

(3) Rates of pay or any other form of 
compensation and changes in compensa- 
tion; : 

(4) Job assignments, job classifica- 
tions, organizational structures, position 
descriptions, lines of progression, and 
seniority lists; 

(5) Leaves of absense, sick leave, or any 
other leave; 

(6) Fringe benefits available by virtue 
of employment, whether or not adminis- 
tered by the recipient; 

/ 

Discrimination prohibited. 

  

('D Selection and financial support for 
training, including apprenticeship, pro- 
fessional meetings, conferences, and 
other related activities, and selection for 
leaves of absence to pursue training; 

(8) Employer sponsored activities, in- 
cluding social or recreational programs; 
and : 

(9) Any other term, condition, or priv- 
ilege of employment. 

(c) A recipient’s obligation to comply 
with this subpart is not affected by any 
inconsistent term of any collective bar- 
gaining agreement to which it is a party. 

§ 84.12 Reasonable accommodation, 

(a) A recipient shall make reasonable 
accommodation to the known physical or 
mental limitations of an otherwise qual- 
ified handicapped applicant or employee 
unless the recipient can demonstrate 
that the accommodation would impose 
an undue hardship on the operation of 
its program. 

(b) Reasonable accommodation may 
include: (1) making facilities used by 
employees readily accessible to and us- 
able by handicapped persons, and (2) job 
restructuring, part-time or modified 
work schedules, acquisition or modifica- 
tion of equipment or devices, the provi- 
sion of readers or interpreters, and other 
similar actions. 

(¢) In determining pursuant to para- 
-graph (a) of this section whether an ac- 
commodation would impose an undue 
hardship on the operation of a recipi- 
ent’s program, factors to be considered 
include: 

(1) The overall size of the recipient’s 
program with respect to number of em- 
ployees, number and type of facilities, 
and size of budget; 

(2) The type of the recipient’s opera- 
tion, including the composition and 
structure of the recipient’s workforce; 
and 

(3) The nature and cost of the accom- 
modation needed. 

(d) A recipient may not deny any em- 
ployment opportunity to a qualified han- 
dicapped employee or applicant if the 
basis for the denial is the need to make 
reasonable accommodation to the physi 
cal or mental limitations of the employee 
or applicant. 

§ 84.13 Employment ¢riteria. 

(a) A recipient may not make use of 
any employment test or other selection 
criterion that screens out or tends to 
screen out handicapped persons or any 
class of handicapped persons unless: 
(1) the test score or other selection cri- 
terion, as used by the recipient, is shown 
to be job-related for the positien in ques- 
tion, and (2) alternative job-related tests 
or criteria that do not screen out or tend 
to screen out as many handicapped per- 
sons are not shown by the Director to 
be available. : 

(b) A recipient shall select and admin- 
ister tests concerning employment so as 
best to ensure that, when administered 
to an applicant or employee who has a 
handicap that impairs sensory, manual, 
or speaking skills, the test results accu- 

REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 4, 1977 

:



rately reflect the applicant’s or em- 
ployee’s job skills, aptitude, or whatever 
other factor the test purports to meas- 
ure, rather than reflecting the appli- 
cant’s or employee’s impaired sensory, 
manual, or speaking skills (except where 
those skills are the factors that the test 
purports to measure). 

§ 84.14 Preemployment inquiries. 

(a) Except as provided in paragraphs 
(b) and (ec) of this section, a recipient 
may not conduct a preemployment med- 
ical examination or may not make pre- 
employment inquiry of an applicant as 
to whether the applicant is a handi- 
capped person or as to the nature or 
severity of a handicap. A recipient 
may, however, make preemployment in- 
quiry into an applicant’s ability to per- 
form job-related functions. 

(b) When a recipient is taking 
remedial action to correct the effects 
of past discrimination pursuant to § 84.6 
(a), when a recipient is taking voluntary 
action to overcome the effects of con- 
ditions that resulted in limited par- 
ticipation in its federally assisted pro- 
gram or activity pursuant to § 84.6(b), 
or when a recipient is taking affirmative 
action pursuant to section 503 of the 
Act, the recipient may invite applicants 
for employment to indicate whether and 
to what extent they are handicapped, 
Provided, That: 

(1) The recipient states clearly on 
any written questionnaire used for this 
purpose or makes clear orally if no writ- 
ten questionnaire is used that the in- 
formation requested is intended for use 
solely in connection with its remedial 
action obligations or its voluntary or 
affirmative action efforts; and 

(2) The recipient states clearly that 
the information is being requested on a 
voluntary basis, that it will be kept con- 
fidential as provided in paragraph (4d) 
of this section, that refusal to provide 

-it will not subject the applicant or em- 
ployee to any adverse treatment, and 
that it will be used only in accordance 
with this part. 

(¢) Nothing in this section shall 
prohibit a recipient from conditioning 
an offer of employment on the results 
of a medical examination conducted 
prior to the employee’s entrance on 
duty, Provided, That: (1) All entering 
employees are subjected to such an 
examination regardless of handicap, and 
(2) the results of such an examination 
are used only in accordance with the re- 
quirements of this part. 

(d) Information obtained in accord- 
ance with this section as to the medi- 
cal condition or history of the applicant 
shall be collected and maintained on 
separate forms that shall be accorded 
confidentiality as medical records, ex- 

cept that: 

(1) Supervisors and managers may be 
informed regarding restrictions on the 
work or duties of handicapped persons 
and regarding necessary accommoda- 
tions; 

(2) Pirst aid and safety personnel 
may be informed, where appropriate, if 
the condition might require emergency 

treatment; and 

FEDERAL 

RULES AND REGULATIONS 

(3) Government officials investigating 
compliance with the Act shall be pro- 
vided relevant information upon re- 
quest. 

§§ 84.15——84.20 [Reserved] 

Subpart C—Program Accessibility 

§ 84.21 Discrimination prohibited. 

No qualified handicapped ° person 
shall, because a recipient’s facilities are 
inaccessible to or unusable by handi- 
capped persons, be denied the benefits of, 
be excluded from participation in, or 
otherwise be subjected to discrimination 
under any program or activity to which 
this part applies. ° 

§ 84.22 Existing facilities. 

(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 handi- 
capped persons. This paragraph does not 
require a recipient to make each of its 
existing facilities or every part of a fa- 
cility accessible to and usable by handi- 
capped persons. - 

(by) Methods. A recipient may comply 
with the requirement 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 bene- 
ficlaries, home visits, delivery of health, 
welfare, or other social services at alter- 
nate accessible sites, alteration of exist- 
ing facilities and construction of new fa< 
cilities in conformance with the require- 
ments of § 84.23, or any other methods 
that result in making its program or ac- 
tivity 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 re- 
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 setting appropriate. 

(c) Small health, welfare, or other so- 
cial service providers. If a recipient with 
fewer than fifteen employees that pro- 
vides 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 serv- 
ices that are accessible. 

(d) Time period. A recipient shall 
comply with the requirement of para- 
graph (a) of this section within sixty 
days of the effective date of this part 
except that where structural changes in 
facilities are necessary, such changes 
shall be made within three years of the 
effective date of this part, but in any 
event as expeditiously as possible. 

(e) Transition plan. In the event that 
structural changes to facilities are nec- 
essary to meet the requirement of para- 
graph (a) of this section, a recipient 

REGISTER, VOL. 42, NO.  86—WEDNESDAY, MAY 

226K1 

shall develop, within six months of the 
effective date of this part, a transition 
plan setting forth the steps necessary to 
complete such changes. The plan shall 
be developed with the assistance of in- 
terested persons, including handicapped 
persons or organizations representing 
handicapped persons. A copy of the 
transition plan shall be made available 
for public inspection. The plan shall, at 
a minimum: 

(1) Identify physical obstacles in the 
recipient’s facilities that limit the acces- 
sibility of its program or activity to 
handicapped persons; 

(2) Describe in detail the methods that 
will be used to make the facilities ac- 
cessible; 

(3) Specify the schedule for taking the 
steps necessary to achieve full program 
accessibility and, if the time period of 
the transition plan is longer than one 
vear, identify steps that will be taken 
during each year of the transition pe- 
riod; and : 

(4) Indicate the person responsible 
for implementation of the plan. 

(f) Notice. The recipient shall adopt 
and implement procedures to ensure 
‘that interested persons, including per- 
sons with impaired vision or hearing, can 
cbtain information as to the existence 
and location of services, activities, and - 
facilities that are accessible to and usa- 
ble by handicapped persons. 

§ 84.23 New construction. 

(a) Design and construction. Each fa- 
cility or part of a facility constructed 
by, on behalf of, or for the use of a re- 
cipient shall be designed and constructed 
in such manner that the facility or part 
of the facility is readily accessible to and 
usable by handicapped persons, if the 
construction was’ commenced after the 
effective date of this part. ° 

(b) Alteration. Each facility or part 
of a facility which is altered by, on 
behalf of, or for the use of a recipient 
after the effective date of this part in a 
manner that affects or could affect the 
usability of the facility or part of the fa- 
cility shall, to the maximum extent fea- 
sible, be altered in such manner that the 
altered portion of the facility is readily 
accessible to and usable by handicapped 
persons. 

(¢c) American National Standards In- 
stitute accessibility standards. Design. 
construction, or alteration of facilities in 
conformance with the “American Na- 
tional Standard Specifications for Mak- 
ing Buildings and Facilities Accessible 
to, and Usable by, the Physically Handi- 
capped,” published by the American Na- 
tional Standards Institute, Inc. (ANSI 
Al117.1-1961 (R1971))," which is incorpo- 
rated by reference in this part, shall 
constitute compliance with paragraphs 
(a) and (b) of this section. Departures 
from peorticular requirements of those 
standards by the use of other methods 
shall be permitted when it is clearly 
evident that equivalent access to the 
facility or part of the facility is thereby 
provided. 

1 Copies obtainable from American Na- 
tional Standards Institute, Inc., 1430 Broad- 
way, New York, N.Y. 10018. 

4, 1977 

 



    

22682 

§§ 84.24-84.30. [Reserved] 

Subpart D—Preschool, Elementary, and 
Secondary Education 

§ 84.31 : Application of this subpart. 

Subpart D applies to preschool, ele- 
mentary, secondary, and adulf education 
programs and activities that receive or 
benefit from federal financial assistance 
and to recipients that operate, or that 
receive or benefit from federal financial 
assistance for the operation of, such pro- 
grams or activities. 

§ 84.32 Location and notification. - 

A recipient that operates a public ele- 
mentary or secondary education pro- 
gram shall annually: 

(a) Undertake to identify and locate 
every qualified handicapped person re- 
siding in the recipient’s jurisdiction who 
is not receiving a public education; and 

(b) Take appropriate steps to notify 
handicapped persons and their parents 
or guardians of the recipient’s duty un- 
der this subpart. : 

§ 84.33 Free appropriate public cduca- 
tion. 

(a) General. A recipient that operates 
a public elementary or secondary educa- 
tion program shall provide a free appro- 
priate public education to each qualified 
handicapped person who is in the recip- 
ient’s jurisdiction, regardless of the na- 
ture or severity of the person’s handicap. 

(b) Appropriate education. (1) For 
the purpose of this subpart, the provi- 
sion of an appropriate education is the . 
provision of regular or special education 
and related aids and services that (i) are 
designed to meet individual educational 
needs of handicapped persons as ade- 
quately as the needs of nonhandicapped 
persons are met and (ii) are based upon 
adherence to procedures that satisfy the 
requirements of §§ 84.34, 84.35, and 84.36. 

{2) Implementation of an individual- 
ized education program developed in ac- 
cordance with the Education of the 
the Handicapped Act is one means of 
meeting the standard established in 
paragraph (b) (1) (i) of this section. 

> (3) A recipient may place a handi- 
capped person in or refer such person to 
a program” other than the one that it 
operates as its means of carrying out 

~ the requirements of this subpart. If so, 
the recipient remains responsible for en- 
suring that the requirements of this sub- 
part are met with respect to any handi- 
capped person so placed or referred. 

(¢) Free education—(1) General. For 
the purpose of this section, the provi- 
sion of a free education is the provision 
of educational and related services with- 
out cost to the handicapped person or to 
his or her parents or guardian, except 
for those fees that are imposed on non- 
handicapped persons or their parents or 
guardian. It may consist either of the 
provision of free services or, if a recipi- 
ent places a handicapped person in or 
refers such person to a program not op- 
erated by the recipient as its means of 
carrying out the requirements of this 
subpart, of payment for the costs of the 
program. Funds available from any pub- 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 

RULES AND REGULATIONS 

lic or private agency may be used to 
meet the requirements of this subpart. 
Nothing in this section shall be con- 
strued to relieve an insurer or similar 
third party from an otherwise valid ob=- 
ligation to provide or pay for services 
provided to a handicapped person. 

(2) Transportation. If a recipient 
places a handicapped person in or refers 
such person to a program not operated 
by the recipient as its means of carry- 
ing out the requirements of this subpart, 
the recipient shall ensure that adequate 
transportation to and from the program 
is provided at no greater cost than would 
be incurred by the person or his or her 
parents or guardian if the person were 
placed in the program operated by the 
recipient. : 

(3) Residential placement. If place- 
ment in a public or private residential 
program is necessary to provide a free 
appropriate public education to a handi- 
capped person because of his or her 
handicap, the program, including non- 
medical care and room and board, shall 
be provided at no cost to the person or 
his or her parents or guardian. 

(4) Placement of handicapped persons 
by parents. If a recipient has made 
available, in conformance with the re- 
quirements of this section and § 84.34, 
a free appropriate public education to a 
handicapped person and the person’s 
parents or guardian choose to place the 
person in a private school, the recipient 
is not required to pay for the person’s 
education in the private school. Dis- 
agreements between a parent or guard- 
ian and a recipient regarding whether 
the recipient has made such a program 
available or otherwise regarding the. 
question of financial responsibility are 
subject to the due process procedures of 
§ 84.36. 

(d) Compliance. A recipient may not 
exclude any qualified handicapped per- 
son from a public elementary or sec- 
ondary education after the effective date 
of this part. A recipient that is not, on 
the effective date of this regulation, in 
full compliance with the other require- 
ments of the preceding paragraphs of 
this section shall meet such require- 
ments at the earliest practicable time 
and in no event later than September 1, 
1978. 

§ 84.34 Educational setting. 

(a) Academic seiling. A recipient to 
which this subpart applies shall educate, 
or shall provide for the education of, 
each qualified handicapped person in its 
jurisdiction with persons who are not 
handicapped to the maximum extent ap- 
propriate to the needs of the handi- 
capped person. A recipient shall place a 
handicapped person in the regular edu- 
cational environment operated by the 
recipient’ unless it is demonstrated by 
the recipient that the education of the 
person in the regular environment with 
the use of supplementary aids and serv- 
ices cannot be achieved satisfactorily. 
Whenever a recipient places a person in 
a setting other than the regular educa- 
tional environment pursuant to this par- 
agraph, it shall take into account the 

  

proximity of the alternate setting to the 
person’s home. 

(b) Nonacademic settings. In provid- 
ing or arranging for the provision of 
nonacademic and extracurricular serv- 
ices and activities, including meals, re- 
cess periods, and the services and activ- 
ities set forth in § 84.37(a) (2), a recipient 
shall ensure that handicapped persons 
participate with nonhandicapped persons 
in such activities and services to the: 
maximum extent appropriate to the 
needs of the handicapped person in 
question. 

(¢c) Comparable facilities. If a recip- 
ient, in compliance with paragraph (a) 
of this section, operates a facility that is 
identifiable as being for handicapped 
persons, the recipient shall ensure that 
the facility and the services and activ- 
ities provided therein are comparable to 
the other facilities, services, and activ- 
ities of the recipient. 

§ 84.35 
(a) Preplacement evaluation. A recip- 

ient that operates a public elementary or 
secondary education program shall con- 
duct an evaluation in accordance with 
the requirements of paragraph (b) of 
this section of any person who, because 
of handicap, needs or is believed to need 
special education or related services be- 
fore taking any action with respect to the 
initial placement of the person in a reg- 
ular or special education program and 
any subsequent significant change in 
placement. 

(b) Evaluation procedures. A recipient 
to which this subpart applies shall estab- 
lish standards and procedures for the 
evaluation and placement of persons 
who, because of handicap, need or are 
believed to need special education or re- 
lated services which ensure that: 

(1) Tests and other evaluation mate- 
rials have been validated for the specific 

Evaluation and placement. 

purpose for which they are used and are _ 
administered by trained personnel in 
conformance with the instructions pro- 
vided by their producer; 

(2) Tests and other evaluation mate- 
+ rials include those tailored to assess spe- 
cific areas of educational need and not 
merely those which are designed to pro- 
vide a single general intelligence quo- 
tient; and : 

(3) Tests are selected and adminis- 
tered so as best to ensure that, when a 
test is administered to a student with 
impaired sensory, manual, or speaking 
skills, the test results accurately reflect 
the student’s aptitude or achievement 
level or whatever other factor the test 
purports to measure, rather than reflect- 
ing the student’s impaired sensory, man- 
ual, or speaking skills (except where 
those skills are the factors that the test 
purports to measure). 

(¢c) Placement procedures. In inter- 
preting evaluation data and in making 
placement decisions, a recipient shall (1) 
draw upon information from a variety 
of sources, including aptitude and 
achievement tests, teacher recommenda- 
tions, physical condition, social or cul- 
tural background, and adaptive behavior, 
(2) establish procedures to ensure that 
information obtained from all such 

4, 1977



  

sources is documented and carefully con- 
sidered, (3) ensure that the placement 
decision is made by a group of persons, 
including persons knowledgeable about 
the child, the meaning of the evaluation 
data, and the placement options, and (4) 
ensure that the placement decision is 
made in conformity with § 84.34. 

(d) Reevaluation. A recipient to which 
this section applies shall establish pro- 
cedures, in accordance with paragraph 
(b) of this section, for periodic reevalua=- 
tion of students who have been provided 
special education and related services. A 
reevaluation procedure consistent with 
the Education for the Handicapped Act 

is one means of meeting this requirement. 

§ 84.36 Procedural safeguards. 

A recipient that operates a public ele- 
mentary or secondary education program 
shall establish and implement, with re- 
spect to actions regarding the identifica- 
tion, evaluation, or educational place- 
ment of persons who, because of handi- 
cap, 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 
guaradian of the person to examine rele- 
vant records, an impartial hearing with 
opportunity for participation by the per- 
son’s parents or guardian and represent- 
ation by counsel, and a review procedure. 
Compliance with the procedural safe- 
guards of section 615 of the Education of 
the Handicapped Act is one means of 
meeting this requirement. 

§ 84.37 Nonacademic services. 

(a) General. (1) A recipient to which 
this subpart applies shall provide non- 
academic and extracurricular services 
and activities in such manner as is neces- 
sary to afford handicapped students an 
equal opportunity for participation in 
such services and activities. 3 

(2) Nonacademic and extracurricular 
services and activities may include coun- 
seling services, physical recreational 
athletics, transportation, health services, 
recreational activities, special interest 
groups or clubs sponsored by the recipi- 
ent, referrals to agencies which provide 
assistance to handicapped persons, and 
employment of students, including both 
employment by the recipient and assist- 
ance in making available outside employ- 

ment. 

(b) Counseling services. A recipient to 
which this subpart applies that provides 
personal, academic, or vocational coun- 
seling, guidance, or placement services to 
its students shall provide these services 
without discrimination on the basis of 
handicap. The recipient shall ensure that 
qualified handicapped students are not 
counseled toward more restrictive career 
objectives than are nonhandicapped stu- 
dents with similar interests and abilities. 

(¢) Physical education and athletics. 
(1) In providing physical education 
courses and athletics and similar pro- 
grams and activities to any of its stu- 
dents, a recipient to which this subpart 
applies may not discriminate on the basis 
of handicap. A recipient that offers phys- 
ical education courses or that operates 

FEDERAL 

RULES AND REGULATIONS 

or sponsors interscholastic, club, or in- 
tramural athletics shall provide to quali- 
fied handicapped students an equal op- 
portunity for participation in these 
activities. 

(2) A recipient may offer to handi- 
capped students physical education and 
athletic activities that are separate or 
different from those offered to nonhandi- 
capped students only if separation or 
differentiation is consistent with the 
requirements of § 84.34 and only if no 
qualified handicapped student is denied 
the opportunity to compete for teams or 
to participate in courses that are not 
separate or different. 

§ 84.38 Preschool and adult education 
programs. 

A recipient to which this subpart ap- 
plies that operates a preschool educa- 
tion or day care program or activity or 
an adult education program or activity 
may not, on the basis of handicap, ex- 
clude qualified handicapped persons from 
the program or activity and shall take 
into account the needs of such persons 
in determining the aid, benefits, or serv- 
ices to be provided under the program 
or activity. 

§ 84.39 Private education programs. 

(a) A recipient that operates a pri- 
vate elementary or secondary education 
program may not, on the basis of handi- 
cap, exclude a qualified handicapped 
person from such program if the person 
can, with minor adjustments, be provided 
an appropriate education, as defined in 
§ 84.33(b) (1), within the recipient’s 
program. 

" (b) A recipient to which this section 
applies may not charge more for the pro- 
vision of an appropriate education to 
handicapped persons than to nonhandi- 
capped persons except to the extent that 
any additional charge is justified by a 
substantial increase in cost to the 
recipient. 

(¢) A recipient to which this section 
applies that operates special education 
programs shall operate such programs in 
accordance with the provisions of 
§§ 84.35 and 84.36. Each recipient to 
which this section applies is subject to 
the provisions of §§ 84.34, 84.37. and 

84.38. 

§ 84.40 [Reserved] 

Subpart E—Postsecondary Education 

§ 84.41 Application of this subpart. 

Subpart E applies to postsecondary 
education programs and activities, in- 
cluding postsecondary vocational educa- 
tion programs and activities, that receive 
or benefit from federal financial assist= 
ance and to recipients that operate, or 
that receive or benefit from federal fi- 
nancial assistance for the operation of, 
such programs or activities. 

§ 84.42 Admissions and recruitment. 

(a) General. Qualified handicapped 
persons may not, on the basis of handi- 
cap, be denied admission or be subjected 
to discrimination in admission or re- 
cruitment by a recipient to which this 
subpart applies. 

REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 

-obligations 

22683 

(b) Admissions. In administering its 
admission policies, a recipient to which 
this subpart applies: 

(1) May not apply limitations upon 
the number or proportion of handi- 
capped persons who may be admitted; 

(2) May not make use of any test or 
criterion for admission that has a dis- 
proportionate, adverse effect on handi- 
capped persons or any class of handi- 
capped persons unless (i) the test or cri- 
terion, as used by the recipient, has been 
validated as a predictor of success in the 
education program or activity in ques- 
tion and (ii) alternate tests or criteria 
that have a less disproportionate, ad- 
verse effect are not shown by the Direc- 
tor to be available; > 

(3) Shall assure itself that (i) admis- 
sions tests are selected and administered 
so as best to ensure that, when a test is 
administered to an applicant who has a 
handicap that impairs sensory, manual, 
or speaking skills, the test results accu- 
rately reflect the applicant’s aptitude or 
achievement level or whatever other fac- 
tor the test purports to measure, rather 
than reflecting the applicant’s impaired 
sensory, manual, or speaking skills (ex- 
cept where those skills are the factors 
that the test purports to measure); (ii) 
admissions tests that are designed for 
persons with impaired sensory, manual, 
or speaking skills are offered as often and 
in as timely a manner as are other admis- 
sions tests; and (iii) admissions tests are 
administered in facilities that, on the 
whole, are accessible to handicapped 
persons; and 

(4) Except as provided in paragraph 
(¢c) of this section, may not make pread- 
mission inquiry as to whether an appli- 
cant for admission is a handicapped per- 
son but, after admission, may make in- 
quiries on a confidential basis as to 
handicaps that may require accommo- 
dation. 

(¢c) Preadmission inquiry exception. 
When a recipient is taking remedial ac- 
tion to correct the effects of past dis- 
crimination pursuant to § 84.6(a) or 
when a recipient is taking voluntary ac- 
tion to overcome the effects of conditions 
that resulted in limited participation in 
its federally assisted program or activity 
pursuant to § 84.6(b), the recipient may 
invite applicants for admission to indi- 
cate whether and to what extent they 
are handicapped, Provided, That: 

(1) The recipient states clearly on any 
written questionnaire used for this pur- 
pose or makes clear orally if no written 
questionnaire is used that the informa- 
tion requested is intended for use solely 
in connection with its remedial action 

or its voluntary action 
efforts; and 

(2) The recipient states clearly that 
the information is being requested on a 
voluntary basis, that it will be kept con- 
fidential, that refusal to provide it will 
not subject the applicant to any adverse 
treatment, and that it will be used only 
in accordance with this part. 

(d). Validity studies. For the purpose 
of paragraph (b) (2) of this section, a re- 
cipient may base prediction equations on 
first year grades, but shall conduct peri- 

4, 1977 

 



  

  

  

  

  

22684 

odic validity studies against the criterion 
of overall success in the education pro- 
gram or activity in question in order to 
monitor the general validity of the test 

scores. 

§84.43 Treatment of students; general. 

(a) No qualified handicapped student 
shall, on the basis of handicap, be ex- 
cluded from .participation in, be denied 
the benefits of, or otherwise be subjected 
to discrimination under any academic, 
research, occupational training, hous~- 
ing, health, insurance, counseling, finan- 
cial aid, physical education, athletics, 
recreation, transportation, other extra- 
curricular, or other postsecondary edu- 
cation program or activity to which this 

subpart applies. 
(b) A recipient to which this subpart 

applies that considers participation by 
students in education programs or activi- 
ties not operated wholly by the recipient 
as part of, or equivalent to, an education 
program or activity operated by the re- 

 cipient shall assure itself that the other 
education program or activity, as a 
whole, provides an equal opportunity for 
the participation. of qualified handi- 
capped persons. 

(c) A recipient to which this subpart 
applies may not, on the basis of handi- 
cap, exclude any qualified handicapped 
student from any course, course of study, 
or other part of its education program or 

activity. 
(d) A recipient to which this subpart 

applies shall operate its programs and 
activities in the most integrated setting 
appropriate. 

§ 84.44 Academic adjustments. 

(a) Academic requirements. A recipi- 
ent to which this subpart applies shall 
make such modifications to its academic 
requirements as are necessary to ensure 
that such requirements do not discrimi- 
nate or have the effect of discriminating, 
on the basis of handicap, against a quali- 
fied handicapped applicant or student. 
Academic requirements that the recipi- 
ent can demonstrate are essential to the 
program of instruction being pursued by 
such student or to any directly related 
licensing requirement will not be re- 
garded as discriminatory within the 
meaning of this section. Modifications 
may include changes in the length of 
time permitted for the completion of de- 
gree requirements, substitution of spe- 
cific courses required for the completion 
of degree requirements, and adaptation 
of the manner in which specific courses 
are conducted. 

(b) Other rules. A recipient to which 
this subpart applies may not impose 
upon handicapped students other rules,. 
such ‘as the prohibition of tape recorders 
in classrooms or of dog guides in campus 
buildings, that have the effect of limit- 
ing the participation of handicapped 
students in the recipient's education 
program or activity. 

(c) Course examinations. In its course 
examinations or other procedures for 
evaluating students’ academic achieve- 
ment in its program, a recipient to which 
this subpart applies shall provide such 
methods for evaluating the achievement 
of students who have a handicap that 

RULES AND REGULATIONS 

impairs sensory, manual, or speaking 
skills as will best ensure that the results 
of the evaluation represents the stu- 
dent’s achievement in the course, rather 
than reflecting the student’s impaired 
sensory, manual, or speaking skills 
(except where such skills are the factors 
that the test purports to measure). 

(d) Auxiliary aids. (1) A recipient to 
which this subpart applies shall take 
such steps as are necessary to ensure that 
no handicapped student is denied the 
benefits of, excluded from participation 
in, or otherwise subjected to discrimina- 
tion under the education program or 
activity operated by the recipient be- 
cause of the absence of educational 
auxiliary aids for students with impaired 
sensory, manual, or speaking skills. 

(2) Auxiliary aids may include taped 
texts, interpreters or other effective 
methods of making .orally delivered 
materials available to students with 
hearing impairments, readers in libraries 
for students with visual impairments, 
classroom equipment adapted for use by 
students with manual impairments, and 
other similar services and actions. 
Recipients need not provide attendarits, 
individually prescribed devices, readers 
for personal use or study, or other 
devices or services of a personal nature. 

§ 84.45 Housing. 

(a) Housing provided by the recipient. 
A recipient that provides housing to its 
nonhandicapped students shall provide 
comparable, convenient, and accessible 
housing to handicapped students at the 
same cost as to others. At the end of the 
transition period provided for in Sub= 
part C, such housing shall be available 
in sufficient quantity and variety so that 
the scope of handicapped students’ 
choice of living accommodations is, as a 
whole, comparable to that of nonhandi- 
capped students. 

(b) Other housing. A recipient that 
assists any agency, organization, or per- 
son in making housing available to any 
of its students shall take such action as 
may be necessary to assure itself that 
such housing is, as a whole, made avail- 
able in a manner that does not result in 
discrimination on the basis of handicap. 

§ 84.46 Financial and employment as- 
sistance to students. 

(a) Provision of financial assistance. 
(1) In providing financial assistance to 
qualified handicapped persons, a recipi- 
ent to which this subpart applies may 
not (i), on the basis of handicap, provide 
less assistance than is provided to non- 
handicapped persons, limit eligibility for 
assistance, or otherwise discriminate or 
(ii) assist any entity or person that pro- 
vides assistance to any of the recipient’s 
students in a manner that discriminates 
against qualified handicapped persons on 
the basis of handicap. 

(2) A recipient may administer or as- 
sist in the administration of scholar- 
ships, fellowships, or other forms of fi- 
nancial assistance established under 
wills, trusts, bequests, or similar legal in- 
struments that require awards to be made 
on the basis of factors that discriminate 
or have the effect of discriminating on 
the basis of handicap only if the overall 

  

effect of the award of scholarships, fel- 
lowships, and other forms of financial 
assistance is not discriminatory on the 
basis of handicap. 

(b) Assistance in making available 
outside employment. A recipient that as- 
sists any agency, organization, or per- 
son in providing employment opportuni- 
ties to any of its students shall assure it- 
self that such employment opportunities, 
as a whole, are made available in a man- 
ner that would not violate Subpart B if 
they were provided by the recipient. 

(c) Employment of students by recip- 
ients. A recipient that employs any of 
its students may not do so in a manner 
that violates Subpart B. 

§ 84.47 Neonacademic services. 

(a) Physical education and athletics, 
(1) In providing physical education 
courses and athletics and similar pro- 
grams and activities to any of its stu- 
dents, a recipient to which this subpart 
applies may not discriminate on the basis 
of handicap. A recipient that offers 
physical education courses or that oper- 
ates or sponsors intercollegiate, club, or 
intramural athletics shall provide to 
qualified handicapped students an equal 
opportunity for participation in these 
activities. 

(2) A recipient may offer to handicap- 
ped students physical education and 
athletic activities that are separate or 
different only if separation or differentia~ 
tion is consistent with the requirements 
of §84.43(d) and only if no qualified 
handicapped student is denied the op- 
portunity to compete for teams or to 
participate in courses that are not sepa- 
rate or different. 

(b) Counseling and placement services. 
A recipient to which this subpart applies 
that provides personal, academic, or 
vocational counseling, guidance, or place- 
ment services to its students shall pro- 
vide these services without discrimina- 
tion on the basis of handicap. The recip- 
ient shall ensure that qualified handi- 
capped students are not counseled toward 
more restrictive career objectives than 
are nonhandicapped students with 
similar interests and abilities. This re- 
quirement does not preclude a recipient 
from providing factual information about 
licensing and certification requirements 
that may present obstacles to handicap- 
ped persons in their pursuit of particular 
careers. 

(¢c) Social organizations. A recipient 
that provides significant assistance to 
fraternities, sororities, or similar organi- 
zations shall assure itself that the mem- 
bership practices of such organizations 
do not permit discrimination otherwise 
prohibited by this subpart. 

§§ 84.483—84.50 [Reserved] 

Subpart F—Heaith, "Welfare, and Social 
Seivices 

§ 84.51 

Subpart F applies to health, welfare, 
and other social service programs and 
activities that receive or benefit from 
federal financial assistance and to recip- 
ients that operate, or that receive or 
benefit from federal financial assistance 
for the operation of, such programs or 
activities. 

Application of this subpart. 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 4, 1977 

~ 

{ 3 3 :



§ 84.52 Health, welfare, and other social 
services. 

(a) General. In providing health, wel- 
fare, or other social services or benefits, 
a recipient may not, on the basis of 
handicap: 

(1) Deny a qualified handicapped per- 
son these benefits or services; 

(2) Afford a qualified handicapped 
person an opportunity to receive bene- 
fits or services that is not equal to that 
offered nonhandicapped persons; 

(3) Provide a qualified handicapped 
person with benefits or services that are 
not as effective (as defined in § 84.4(b)) 
as the benefits or services provided to 
others; 

(4) Provide benefits or services in a 
manner that limits or has the effect of 
limiting the participation of qualified 
handicapped persons; or 

(5) Provide different or separate bene- 
fits or services to handicapped persons 
except where necessary to provide quali- 
fied handicapped persons with benefits 
and services that are as effective as those 
provided to others. 

(b) Notice. A recipient that provides 
notice concerning benefits or services or 
written material concerning waivers of 
rights or consent to treatment shall take 
such steps as are necessary to ensure 
that qualified handicapped persons, in- 
cluding those with impaired sensory or 
speaking skills, are not denied effective 
notice because of their handicap. 

(¢c) Emergency treatment for the hear- 
ing impaired. A recipient hospital that 
provides health services or benefits shall 
establish a procedure for effective com- 
munication with persons with impaired 
hearing for the purpose of providing 
emergency health care. 

(d) Auxiliary aids. (1) A recipient to 
which this subpart applies that employs 
fifteen or more persons shall provide ap- 
propriate -auxiliary aids to persons with 
impaired sensory, manual, or speaking 
skills, where necessary to afford such 
persons an equal opportunity to bene- 
fit from the service in question. 

(2) The Director may require recip- 
ients with fewer than fifteen employees 
to provide auxiliary aids where the pro- 
vision of aids would not significantly im- 
pair the ability of the recipient to pro- 
vide its benefits or services. 

(3) For the purpose of this paragraph, 
auxiliary aids may include brailled and 
taped material, interpreters, and other 
aids for persons with impaired hearing 
or vision. 

§ 84.53 Drug and alcohol addicts. 

A recipient to which this subpart ap- 
plies that operates a general hospital or 
outpatient facility may not discriminate 
in admission or treatment against a drug 
or alcohol abuser or alcoholic who is suf- 
fering from a medical condition, because 
of the person’s drug or alcohol abuse or 
alcoholism. 

§ 84.54 Education of 
persons. 

A recipient to which this subpart ap- 
plies and that operates or supervises a 
program or activity for persons who are 

institutionalized 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 

§§ 84.62-84.99 

RULES AND REGULATIONS 

institutionalized because of handicap 
shall ensure that each qualified handi- 
capped person, as defined in § 84.3(k) (2), 
in its program or activity is provided an 
appropriate education, as defined in 
§ 84.33(b). Nothing in this section shall 
be interpreted as altering in any way the 
obligations of recipients under Subpart 
D. 

§§ 84.55-84.60 [Reserved] 
Subpart G—Procedures 

§ 84.61 Procedures. 

The procedural provisions applicable 
to title VI of the Civil Rights Act of 
1964 apply to this part. These procedures 
are found in §§ 80.6-80.10 and Part 81 
of this Title. 

[Reserved] 
NoTE: Incorporation by reference provisions 
approved by the Director of the Federal 
Register, May 27, 1975. Incorporated docu- 
ments are on file at the Office of the Federal 
Register. 

APPENDIX A—ANALYSIS OF FINAL REGULATION 

SUBPART A—GENERAL PROVISIONS 

Definitions—1. “Recipient”. Section 84.23 
contains definitions used throughout the 
regulation. Most of the comments concerning 
§ 84.3(f), which contains the definition of 
“recipient,” commended the inclusion of re- 
cipients whose sole source of federal financial 
assistance is Medicaid. The Secretary believes 
that such Medicaid providers should be re- 
garded as recipients under the statute and 
the regulation and should be held individ- 
ually responsible for administering services 

in a nondiscriminatory fashion. Accordingly, 
§ 84.3(f) has not been changed. Small Medic- 
aid providers, however, are exempt from 
some of the regulation’s administrative pro- 
visions (those that apply to recipients with 
fifteen or more employees). And such recip- 
ients will be permitted to refer patients to 
accessible facilities in certain limited cir- 
cumstances under revised § 84.22(b). The 
Secretary recognizes the difficulties involved 
in federal enforcement of this regulation 
with respect to thousands of individual 
Medicaid providers. As in the case of title VI 
of the Civil Rights Act of 1964, the Office for 
Civil Rights will concentrate its compliance 
efforts on the state Medicaid agencies and 
will look primarily to them to ensure com- 
pliance by individual providers. 

One other comment requested that the 
regulation specify that nonpublic elemen- 
tary and secondary schools that are not 
otherwise recipients do not become recip- 
ients by virtue of the fact their students 
participate in certain federally funded pro- 
grams. The Secretary believes it unnecessary 
to amend the regulation in this regard, be- 

cause almost identical language in the De- 
partment’s regulations implementing title VI 
and title IX of the Education Amendments 
of 1972 has consistently been interpreted so 
as not to render such schools recipients. 
These schools, however, are indirectly sub- 
ject to the substantive requirements of this 
regulation through the application of § 84.4 

(b) (iv), which prohibits recipients from as- 
sisting agencies that discriminate on the 
basis of handicap in providing services to 
beneficiaries of the recipients’ programs. 

2. “Federal financial assistance”. In § 84.3 
(h), defining federal financial assistance, a 
clarifying change has been made: procure- 

ment contracts are specifically excluded. 
They are covered, however, by the Depart- 
ment of Labor’s regulation under section 503. 
The Department has never considered such 
contracts to be contracts of assistance; the 

22685 

explicit exemption has been added only to 
avoid possible confusion. : 

The proposed regulation’s exemption of 
contracts of insurance or guaranty has been 
retained. A number of comments argued for 
its deletion on the ground that section 504, 

unlike title VI and title IX, contains no 
statutory exemption for such contracts. 

There is no indication, however, in the legis- 
lative history of the Rehabilitation Act of 

1973 or of the amendments to that Act in 
1974, that Congress intended section 504 to 
have a broader application, in terms of fed- 
eral financial assistance, than other civil 
rights statutes. Indeed, Congress directed 

that section 504 be implemented in the same 
manner as titles VI and IX, In view of the 
long established exemption of contracts of 

insurance or guaranty under title VI, we 
think it unlikely that Congress intended sec- 
tion 504 to apply to such contracts. 

In its May 1976 Notice of Intent, the De- 
partment suggested that the arrangement 
under which individual practitioners, hos- 
pitals, and other facilities receive reimburse- 
ment for providing services to beneficiaries 
under Part B of title XVIII of the Social Se- 
curity Act (Medicare) constitutes a contract 
of insurance or guaranty and thus falls 
within the exemption from the regulation. 
This explanation oversimplified the Depart- 
ment’s view of whether Medicare Part B con- 
stitutes Federal financial assistance. The De- 
partment’s position has eonsistently been 
that, whether or not Medicare Part B arrange- 
ments involve a contract of insurance or 
guaranty, no Federal financial assistance 
flows from the Department to the doctor or 
other practitioner under the program, since 
Medicare Part B—like other social security 
programs—is basically a program' of pay- 
ments to direct beneficiaries. 

3. “Handicapped person”. Section 84.3(j). 
which defines the class of persons protected 
under the regulation, has not been substan- 
tially changed. The definition of handi- 
capped person in paragraph’ (j) (1) conforms 
to the statutory definition of handicapped 
-person that is applicable to section 504, as 
set forth in section 111(a) of the Rehabilita- 
tion Act Amendments of 1974, Pub. L. 93- 
516. 

The first of the three parts of the statutory 
and regulatory definition includes any per- 
son who has a physical or mental impair- 
ment that substantially limits one or more 
major life activities. Paragraph (Jj) (2) (1) 
further defines physical or mental impair-- 
ments. The definition does not set forth a 
list of specific diseases and conditions that 
constitute physical or mental impairments 
because of the difficulty of ensuring the com- 
prehensiveness of any such list. The term in- 
cludes, however, such diseases and condi- 
tions as orthopedic, visual, speech, and hear- 
ing impairments, cerebral palsy, epilepsy, 
muscular dystrophy, multiple sclerosis, can« 
cer, heart disease, diabetes, mental retarda- 
tion, emotional illness, and, as discussed 
below, drug addiction and alcoholism. 

It should be emphasized that a physical or 
mental impairment does not constitute a 
handicap for purposes of section 504 unless 
its severity is such that it results in a sub- 
stantial limitation of one or mére major life 
activities. Several comments observed the 
lack of any definition in the proposed regula- 
tion of the phrase “substantially limits.” The 
Department does not believe that a defini- 
ticn of this term is possible at this time. 

A related issue raised by several comments 
is whether the definition of handicapped per- 
son is unreasonably broad. Comments sug- 
gested narrowing the definition in various 
ways. The most common recommendation 
was that only “traditional” handicaps be 
covered. The Department continues to be- 
lieve, however, that it has no flexibility within 
the statutory definition to limit the term to 
persons who have those severe, permanent, 

4, 1977 

 



  

  

  
  

  

  

  

  

22686 

or progressive conditions that are most com~ 
monly regarded as handicaps. The Depart- 
ment intends, however, to give particular st- 
tention in its enforcement of section 504 to 
eliminating discrimination against persons 
with the severe handicaps that were the fo- 
cus of concern in the Rehabilitation Act of 
1973. 
The definition of handicapped person also 

includes specific limitations on what persons 
are classified as handicapped under the regu- 
lation. The first of the three parts of the 

definition specifies that only physical and 
mental handicaps are included. Thus, envi- 
ronmental, cultural, and economic disadvan- 
tage are not in themselves covered; nor are 
prison records, age, or homosexuality. Of 
course, if a person who has any of these char- 
acteristics also has & physical or mental 
handicap, the person is included within the 
definition of handicapped person. 

In paragraph (J) (2) (1), physical or 
mental impairment is defined to include, 
among other impairments, specific learning 
disabilities. The Department will interpret 
the term as it is used in section 602 of 
the Education of the Handicapped Act, as 
amended. Paragraph (15) of section 602 uses 
the term “specific learning disabilities” to 
describe such conditions as perceptual 
handicaps, brain injury, minimal brain 
dysfunction, dyslexia, and developmental 
aphasia. \ 

Paragraph (J) (2) (1) has been shortened, 
but not substantively changed, by the dele- 
tion of clause (C), which made explicit the 
.inclusion of any condition which is mental 
or physical but whose precise nature is not 
at present known. Clauses (A) and (B) 
clearly comprehend such conditions. 

The second part of the statutory and 
regulatory definition of handicapped person 
includes any person who has a record of 

a physical or mental impairment that sub- 
stantially limits a major life activity. Under 
the definition of “record” in paragraph (J) 
(2) (iii), persons who have a history of a' 

handicapping condition but no longer have 
the condition, as well as persons who have 
been incorrectly classified as having such a 
condition, are protected from discrimination 
under section b504. Frequently occurring 
examples of the first group are persons with 
histories of mental or emotional ‘lilness, 
heart disease, or cancer; of the second group, 
persons who have been misclassified as 

mentally retarded. 
The third part of the statutory and reg- 

ulatory definition of handicapped person in- 
cludes any person who is regarded as having 
a physical or mental impairment that sub- 

stantially limits one or more major life 

activities. It includes many persons who 
are ordinarily considered tc be handicapped 
but who do not technically fall within the 
first two parts of the statutory definition, 
such as persons with a limp. This part of 
the definition also includes some persons 
who might not: ordinarily be considered 
handicapped, such as persons with disfigur- 
ing scars, as well as persons who have no 
physical or mental impairment but are 

treated by a recipient as if they were 

handicapped. 
4, Drug addicts and alcoholics. As ‘was the 

case during the first comment period, the 
issue of whether to include drug addicts 
and alcoholics within the definition of 

handicapped person was of major concern 

to many commenters. The arguments 
presented on each side of the issue were 
similar during the two comment periods, 
as was the preference of commenters for 

exclusion of this group of persons. While 
some comments reflected misconceptions 
about the implications of including al- 
coholics and drug addicts within the scope 
of the regulation, the Secretary understands 
the concerns that underlie the comments on 

FEDERAL 

RULES AND REGULATIONS 
- 

this question and recognizes that applica- 
tion of section 504 to active alcoholics and 
drug addicts presents sensitive and difficult 
questions that must be taken into account 

in interpretation and enforcement. 
The Secretary has carefully examined the 

issue and has obtained a legal opinion from 
‘the Attorney General, That opinion con- 
cludes that drug addiction and alcoholism 

are “physical or mental impairments” within 
the meaning of section 7(6) of the Rehabili- 
tation Act of 1973, as amended, and that drug 
addicts and alcoholics are therefore handi- 
capped for purposes of section 504 if their 
impairment substantially limits one of their 

“major life activities. The Secretary therefore 
believes that he is without authority to ex- 
clude these conditions from the definition. 
There 1s a medical and legal consensus that 
alcoholism and drug addiction are diseases, 
although there is disagreement as to whether 
they are primarily mental or physical, In ad- 
dition, while Congress did not focus specifi- 
cally on the problems of drug addiction and 
alcoholism in enacting section 504, the com=- 
mittees that considered the Rehabilitation 
Act of 1973 were made aware of the Depart 
ment’s long-standing practice of ‘treating 
addicts and alcoholics as handicapped imdi- 
viduals eligible for rehabilitation services 
under the Vocational Rehabilitation Act. 

The Secretary wishes to reassure recipients 
that inclusion of addicts and alcoholics with- 
in the scope of the regulation will not lead to 
the consequences feared by many com= 
menters. It cannot be emphasized too 
strongly that the statute and the regulation 
apply only to discrimination against qualified 

handicapped persons solely by reason of their 
handicap. The fact that drug addiction and 
alcoholism may be handicaps does not mean 

that these conditions must be ignored in 
determining whether an individual is quali- 
fied for services or employment opportunities. 

On the contrary, & recipient may hold a drug 
addict or alcoholic to the same standard of 
performance and behavior to which it holds 
others, even if any unsatisfactory perform- 
ance or behavior is related to the person’s 
drug addiction or alcoholism. In other words, 

while an alcoholic or drug addict may not be 
denied services or disqualified from employ- 
ment solely because of his or her condition, 

the behavioral manifestations of the condi- 
tion may be taken into account in determin- 

ing whether he or she is qualified. 

With respect to the employment of a drug 
addict or alcoholic, if it can be shown that 
the addiction or alcoholism prevents success- 
ful performance of the job, the person need 
not be provided the employment opportunity 
in question. For example, in making em- 

ployment decisions, a recipient may judge 
addicts and alcoholics on the same basis it 
judges all other applicants’ and employees. 
Thus, a recipient may consider—for all ap- 

plicants including drug addicts and alco- 
holics—past personnel records, absenteeism, 
disruptive, abusive. or dangerous behavior, 
violations of rules and unsatisfactory work 
performance. Moreover, employers ‘may en- 
force rules prohibiting the possession or use 
of alcohol or drugs in the weork-place, pro- 
vided that such rules are enforced against all 

employees. 

With respect to services, there is evidence 
that drug addicts and alcoholics are often 
denied treatment at hospitals for conditions 
unrelated to their addiction or alcoholism. 
In addition, some addicts and alcoholics 
have been denied emergency treatment. 
These practices have been specifically pro- 

hibited by section 407 of the Drug Abuse 
Office and Treatment Act of 1872 (21, U.S.C. 
1174) and section 321 of the Comprehensive 
Alcohol Abuse and Alcoholism Prevention, 
Treatment and Rehabilitation Act of 1970 
(42 U.S.C. 4581), as amended. These statu- 

REGISTER, VOL. 42, NO. B6—WEDNESDAY, MAY 

  

tory provisions are also administered by the 
Department’s Office for Civil Rights and are 
implemented in § 84.563 of this regulation. 

With respect to other services, the impli- 
cations of coverage of alcoholics and drug 
addicts are two-fold: first, no person may be 
excluded from services solely by reason of 
the presence or history of these conditions; 
second, to the extent that the manifesta- 
tions of the condition prevent the person . 
from meeting the basic eligibility require- 
ments of the program or cause substantial 
interference with the operation of the pro-~ 
gram, the condition may be taken into con- 
sideration, Thus, a college may not exclude 
an addict or alcoholic as a student, on the 
basis of addiction or alcoholism, if the per- 
son can successfully participate in the edu- 
cation program and complies with the rules 

of the college and if his or her behavior does 
not impede the performance of other 

students. 
Of great concern to many commenters was 

the question of what effect the inclusion of 
drug addicts and alcoholics as handicapped 
persons would have on school disciplinary 
rules prohibiting the use or possession of 
drugs or alcohol by students. Neither such 
rules nor their application to drug addicts or 
alcoholics is prohibited by this regulation, 
provided that the rules are enforced evenly 
with respect to all students. 

5. “Qualified handicapped person.” Para- 
graph (k) of § 84.3 defines the term “quali- 
fied handicapped person.” Throughout the 
regulation, this term is used instead of the 
statutory term “otherwise qualified handi- 
capped person.” The Department believes 
that the omission of the word ‘“‘otherwise” is 
necessary in order to comport with the in- 
tent of the statute because, read literally, 
“otherwise” qualified handicapped persons 
include persons who are qualified except for 
thelr handicap, rather than in spite of their 
handicap. Under such a literal reading, a 
blind person possessing all the qualifications 

for driving a bus except sight could be said 
to be “otherwise qualified” for the job of 
driving. Clearly, such a result was not in- 
tended by Congress. In all other respects, the 
terms “qualified” and “otherwise qualified” 
are intended to be interchangeable. 

Section 84.3(k)(1) defines a qualified 
handicapped person with respect to employ- 
ment as a handicapped person who can, with 
reasonable accommodation, perform the es- 
sential functions of the job in question. The 
term “essential functions” does not appear 
in the corresponding provision of the De- 
partment of Labor’s section 503 regulation, 

and a few commenters objected to its inclu- 
sion on the ground that a handicapped per- 
son should be able to perform all job tasks. 
However, the Department believes that in- 
clusion of the phrase is useful in emphasiz- 
ing that handicapped persons should not be 
disqualified simply because they may have 
difficulty in performing tasks that bear only 
a marginal relationship to a particular job. 
Further, we are convinced that inclusion of 
the phrase is not inconsistent with the De- 
partment of Labor’s application of its 

definition. 
Certain commenters urged that the defi- 

nition of qualified handicapped person be 
amended so as explicitly to place upon the 
employer the burden of showing that a par- 
ticular mental or physical characteristic is 
essential. Because the same result is achieved 
by the requirement contained in paragraph 

(a) of § 84.13, which requires an employer 

to establish that any selection criterion that 
tends to screen out handicapped persons is 
job-related, that recommendation has not 

been followed. 
Section 84.3 (k) (2) (formerly § 84.3(k) (3)) 

defines qualified handicapped person, with 
respect to preschool, elementary, and sec- 
ondary programs, in terms of age. Several 

4, 1977



commenters recommended that eligibility 
for the services be based upon the standard 
of substantial benefit, rather than age, be- 
cause of the need of many handicapped 
children for early or extended services if 
they are to have an equal opportunity to 
benefit from education programs. No change 
has been made in this provision, again be- 
cause of the extreme difficulties in admin- 
istration that would result from the choice 
of the former standard. Under the remedial 
action provisions of §84.6(a) (3), however, 
persons beyond the age limits prescribed in 
§ 84.3(k) (2) may in appropriate cases be 
required to be provided services that they 
were formerly denied because of a recipi- 
ent’s violation of section 504. 

Section 84.3(k) (2) states that a handi- 
capped person is qualified for preschool, ele- 
mentary, or secondary services if the person 
is of an age at which nonhandicapped per- 
sons are eligible for such services or at. which 
state law mandates the provision of educa- 
tional services to handicapped persons. In 
addition, the extended age ranges for which 
recipients must provide full educational op- 
portunity to all handicapped persons in order 
to be eligible for assistance under the Edu- 
cation of the Handicapped Act—generally, 
3-18 as of September 1978, and 3-21 as of 

September 1980 are incorporated by reference 
in this paragraph. 

Section 84.3(k) (3) (formerly § 84.3(k) (2)) 
defines qualified handicapped person with re- 
spect to postsecondary educational programs. 

As revised, the paragraph means that both 
academic and technical standards must be 
met by applicants to these programs. The 
term “technical standards” refers to all 
nonacademic admissions criteria that are es- 
sential to participation in the program in 

question. 
6. General prohibitions against discrimi- 

nation. Section 84.4 contains general prohi- 

bitions against discrimination applicable to 
all recipients of assistance from this 

Department. 
Paragraph (b) (1) (i) prohibits the exclu- 

sion of qualified handicapped persons from 
aids, benefits, or services, and paragraph 
(ii) requires that equal dpportunity to par- 
ticipate or benefit be provided. Paragraph 
(iii) requires that services provided to hand- 
icapped persons be as effective as those 

provided to the nonhandicapped. In para- 
graph (iv), different or separate services are 
prohibited except when necessary to pro- 

vide equally effective benefits. 

In this context, the term ‘equally effec- 
tive,” defined in paragraph (b) (2), is in- 
tended to encompass the concept of equiva- 

lent, as opposed to identical, services and to 
acknowledge the fact that, in order to meet 
the individual needs of handicapped persons 
to the same extent that the corresponding 
needs of nonhandicapped persons are met, 

adjustments to regular programs or the pro- 
vision of different programs may sometimes 
be necessary. For example, a welfare office 
that uses the telephone for communicating 
with its clients must provide alternative 
modes of communicating with its deaf cli=- 
ents. This standard parallels the one estab- 

lished under title VI of Civil Rights Act of 
1964 with respect to the provision of educa- 
tional services to students whose primary 
language is not English. See Lau Vv. Nichols, 
414 U.S. 563 (1974). To be equally effective, 
however, an aid, benefit, or service need not 

produce equal results; it merely must afford 
an equal opportunity to achieve equal re- 

sults. 

It must be emphasized that, although sep- 

arate services must be required in some in- 
stances, the provision of unnecessarily sepa- 
rate or different services is discriminatory. 
The addition to paragraph (b)(2) of the 
phrase “in the most integrated setting ap- 

FEDERAL 

RULES AND REGULATIONS 

propriate to the person’s needs” is intended 
to reinforce this general concept. A new 
paragraph (b) (8) has also been added to 

§ 84.4, requiring recipients to give qualified 
handicapped persons the option of partici- 
pating in regular programs despite the exist- 
ence of permissibly separate or different pro- 
grams. The requirement has been reiterated 
in §§ 84.38 and 84.47 in connection with 
physical education and -athletics programs. 

Section 84.4(b) (1) (v) prohibits a recipient 
from supporting another entity or person 

that subjects participants or employees in 
the recipient’s program to discrimination on 
the basis of handicap. This section would, for 
example, prohibit financial support by a re- 
cipient to. a community recreational group 
or to a professional or social organization 
that discriminates against handicapped per- 
sons. Among the criteria to be considered in 
each case are the substantiality of the re- 

lationship between the recipient and the 
other entity, including financial support by 
the recipient, and whether the other entity's 
activities relate so closely to the recipient’s 

program or activity that they fairly should 
be considered activities of the recipient it- 
self. Paragraph (b) (1) (vi) was added in re- 
sponse to comment in order to make ex- 
plicit the prohibition against denying quali- 
fied handicapped persons the opportunity to 
serve on planning and advisory boards re- 
sponsible for guiding federally assisted pro- 
grams or activities. 

Several comments appeared to interpret 
§ 84.4(b) (5), which proscribes discriminatory 
site selection, to prohibit a recipient that is 

located on hilly terrain from erecting any 
new bunldings at its present site. That, of 

course, is not the case. This paragraph is 
not intended to apply to construction of ad- 
ditional buildings at an existing site. Of 
course, any such facilities must be made ac- 
cessible in accordance with the requirements 
of § 84.23. 

7. Assurances of ‘compliance. Section 84.5 

(a) requires a recipient to submit to the Di- 
rector an assurance that each of its programs 
and activities receiving or benefiting from 
federal financial assistance from this Depart- 
ment will be conducted in compliance with 

this regulation. To facilitate the submission 
of assurances by thousands of Medicaid pro- 
viders, the Department will follow the title 

VI procedures of accepting, in lieu of assur- 
ances, certification on Medicaid vouchers 
Many commenters also sought relief from the 
paperwork requirements imposed by the De- 

partment’s enforcement of its various civil 
rights responsibilities by requesting the De- 
partment to issue one form incorporating 
title VI, title IX, and section 504 assurances. 
The Secretary is sympathetic to this request. 
‘While it is not feasible to adopt a single civil 
rights assurance form at this time, the Office 

for Civil Rights will work toward that goal. 

8. Private rights of action. Several com- 
ments urged that the regulation incorporate 
provision granting beneficiaries a private 
right of action against recipients under sec- 

tion 504. To confer such a right is beyond 
the authority of the executive branch of gov- 
ernment. There is, however, case law holding 

that such a right exists. Lloyd v. Regional 
Transportation Authority, 548 F. 2d 1277 (7th 

Cir. 1977); see Hairston v. Drosick, Civil No. 
75-0691 (S.D. W. Va., Jan. 14, 1976); Gur- 
mankin v. Castanzo, 411 F. Supp. 982 (E.D. 

Pa. 1976); cf. Lau v. Nichols, supra. 

9. Remedial action. Where there has been 

a finding of discrimination, § 84.6 requires & 
recipient to take remedial action to overcome 
‘the effects of the discrimination. Actions 
that might be required under paragraph (a) 
(1) include provision of services to persons 
previously discriminated against, reinstate- 
ment of employees, and development of a 

remedial action plan. Should a recipient fail 

REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 

22687 

to take required remedial action, the ulti- 
mate sanctions of court action or termination 
of federal financial assistance may be im- 
posed. 

Paragraph (a) (2) extends the responsibil- 
ity for taking remedial action to a recipient 
that exercises control over a noncomplying 
recipient. Paragraph (2) (3) also makes clear 
that handicapped persons who are not in the 
program at the time that remedial action is 
required to be taken may also be the sub- 

Ject of such remedial action. This paragraph 
has been revised in response to comments in 
order to include persons who would have 
been in the program if discriminatory prac- 
tices had not -existed. Paragraphs (a) (1), 

(2), and (3) have also been amended in re- 
sponse to ‘comments to make plain that, in 
appropriate cases, remedial action might be 
required to redress clear violations of the 
statute itself that occurred before the effec- 
tive. date of this regulation. 

10. Voluntary action. In § 84.6(b), the term 
“voluntary action” has been substituted for 

the term “affirmative action” because the use 
of the latter term led to some confusion. We 
believe the term ‘voluntary action” more 
accurately reflects the purpose of the para- 
graph. This provision allows action, beyond 
that required by the regulation, to overcome 

conditions that led to limited participation 
by handicapped persons, whether or not the 

limited participation was caused by any dis- 
criminatory actions on the part of the re- 
cipient. Several commenters urged that para- 

graphs (a) and (b) be revised to require 
remedial action to overcome effects of prior 
discriminatory practices regardless of 
whether there has been an express finding of 
discrimination. The self-evaluation require- 
ment in paragraph (c) accomplishes much 

the same purpose. 
11. Self-evaluation. Paragraph (c) requires 

recipients to conduct a self-evaluation in 
order to determine whether their policies or 

practices may discriminate against handi- 
capped persons and to take steps to modify 

any discriminatory policies and practices and 
their effects. The Department received many 
comments approving of the addition to para- 
graph (c) of a requirement that recipients 
seek the assistance of handicapped persons in 

the self-evaluation process. This paragraph 
has been further amended to require consul- 
tation with handicapped persons or organiza- 
tions representing them before recipients 

undertake the policy modifications and re- 
medial steps prescribed in paragraphs (c) 

(ii) and (iii). 
Paragraph (c¢) (2), which sets forth the 

recordkeeping requirements concerning self- 
evaluation, now applies only to recipients 
with fifteen or more employees. This change 

was made as part of an effort to reduce un- 
necessary or counterproductive administra- 

tive obligations on small recipients. For those 
recipients required to keep records, the re- 
quirements have been made more specific; 
records must include a list of persons con- 
sulted apd a description of areas examined, 

problems identified, and corrective steps 
taken. Moreover, the records must be made 
available for public inspection. 

12. Grievance procedure. Section 84.7 (for= 
merly § 84.8) requires recipients with fifteen 
or more employees to designate an individ- 
ual responsible for coordinating its compli- 
ance efforts and to adopt a grievance pro- 
cedure. Two changes were made in the sec- 
tion in response to comment. A general re= 

quirement that appropriate due process 

procedures be followed has been added. It 
was decided that the details of such proced- 
ures could not at this time be specified be- 

cause of the varied nature of the persons and 
entities who must establish the procedures 

and of the programs to which they apply. A 
sentence was also added to make clear that 

4, 1977 

 



   | 

i 

| 

  
  

22688 

grievance procedures are not required to be 
made available to unsuccessful applicants for 
employment or to applicants for admission to 
colleges and universities. 

The regulation does not require that griev- 

ance procedures be exhausted before recourse 
is sought from the Department. However, the 
Secretary believes that it is desirable and 
efficient in many cases for complainants to 
seek resolution of their complaints and dis- 
putes at the local level and therefore en= 
courages them to use available grievance 

procedures. 
A number of comments asked whether com- 

pliance with this section or the notice re- 
quirements of § 84.8 could be coordinated 
with comparable action required by the title 
IX regulation. The Department encourages 
such efforts, 

13. Notice. Section 84.8 (formerly § 84.9) 
sets forth requirements for dissemination of 
statements of nondiscrimination policy by 
recipients. 

It is important that both handicapped per- 
sons and the public at large be aware of the 
obligations of recipients under section 504. 
Both the Department and recipients have 
responsibilities in this regard. Indeed the 
Department intends to undertake a major 
public information effort to inform persons 
of their rights under section 504 and this 
regulation. In § 84.8 the Department has 
sought to impose a clear obligation on major 
recipients to notify beneficiaries and em- 
ployees of the requirements of section 504, 
without dictating the precise way in which 
this notice must be given. At the same time, 
we have avoided imposing requirements on 
small recipients (those with fewer than fif- 
teen employees) that would create unneces~ 
sary ‘and counterproductive paperwork bur- 
dens on them and unduly stretch the en- 
forcement resources of the Department. 

Section 84.8(a), as simplified, requires re- 
cipients with fifteen or more employees to 
take appropriate steps to notify beneficiaries 
and employees of the recipient’s obligations 
under section 504. The last sentence of § 84.8 
(a) has been revised to list possible, rather 
than required, means of notification. Section 
84.8(b) requires recipients to include a noti- 
fication of their policy of nondiscrimination 
in recruitment and other general informa- 
tion materials. 

In response to a number of comments, 

§ 84.8 has been revised to delete the require- 
ments of publication in local newspapers, 

which has proved to be both troublesome and 
ineffective. Several commenters suggested 
that notification on separate forms be al- 
lowed until present stocks of publications 
and forms are depleted. The final regulation 
explicitly allows this method of compliance. 
The separate form should, however, be in- 

cluded with each significant publication or 
form that is distributed. 

Former § 84.9(b) (2), which prohibited the 
use of materials that might give the impres- 
sion that a recipient excludes qualified hand=- 
icapped persons from its program, has been 
deleted. The Department is convinced by the 
comments that this provision is unnecessary 
and difficult to apply. The Department en- 
courages recipients, however, to include in 
their recruitment and other general infor- 
mation materials photographs of handi- 
capped persons and ramps and other features 

of accessible buildings, 

Under new § 84.9 the Director may, under 
certain circumstances, require recipients with 

fewer than fifteen employees to comply with 
one or more of these requirements, Thus, if 

experience shows a need for imposing notice 
or other requirements on particular recipi- 

ents or classes of small recipients, the De- 
partment is prepared to expand the coverage 

of these sections. 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 

RULES AND. REGULATIONS 

14. Inconsisient Stale laws. Section 84.10 
(a) states that compliance with the regula~ 
tion is not excused by state or local laws 
limiting the eligibility of qualified handi- 
capped persons to receive services or to prac- 
tice an occupation. The provision thus ap- 
plies only with respect to state or local laws 

that unjustifiably differentiate on the basis 
of handicap. 

Paragraph (b) further points out that the 
presence of limited employment opportuni- 
ties in a particular profession does not ex- 
cuse a recipient from complying with the 
regulation. Thus, a law school could not deny 
admission to a blind applicant because blind 
lawyers may find it more difficult to find jobs 

than do nonhandicapped lawyers. 

SUBPART B—EMPLOYMENT PRACTICES 

Subpart B prescribes requirements for 
nondiscrimination in the employment prac- 
tices of recipients of federal financial assist- 

ance administered by the Department. This 
subpart is consistent with the employment 
provisions of the Department’s regulation 
implementing title IX of the Education 
Amendments of 1972 (45 CFR Part 86) and 
the regulation of the Department of Labor 
under section 503 of the Rehabilitation Act, 
which requires certain Federal contractors 
to take affirmative action in the employment 

and advancement of qualified handicapped 
persons. All recipients subject to title IX are 
also subject to this regulation. In addition, 
many recipients subject to this regulation 
receive federal procurement contracts in 
excess of $2500 and are therefore also subject 
to section 503. : : 

15. Discriminatory practices. Section 84.11 
sets forth general provisions with respect to 

discrimination in employment. A new para- 
graph (a) (2) has been added to clarify the 
employment obligations of recipients that 

receive federal funds under Part B of the 
Education of the Handicapped Act, as 
amended  (EHA). Section 606 of the EHA 
obligates elementary or secondary school 
systems that receive EHA funds to take posi- 
tive steps to employ and advance in employ- 

ment qualified handicapped persons. This 
obligation is similar to the nondiscrimina- 
tion requirement of section 504 but requires 
recipients to take additional steps to hire 
and promote handicapped persons. In enact- 
ing section 606 Congress chose the words 
“positive steps” instead of “affirmative ac- 
tion” advisedly and did not intend section 

606 to incorporate the types of activities re- 
quired under Executive Order 11246 (affirma- 
tive action on the basis of race, color, sex, or 
national origin) or under sections 501 and 
503 of the Rehabilitation Act of 1973. : 

Paragraph (b) of §84.11 sets forth the 
specific aspects of employment covered by 

the regulation. Paragraph (c) provides that 
inconsistent provisions of collective bargain- 
ing agreements do not excuse noncompliance. 

18. Reasonable accommodation. The rea- 
sonable accommodation requirement of 

§ 84.12 generated a substantial number of 
comments. The Department remains con- 

vinced that its approach is both fair and 
effective. Moreover, the Department of Labor 

reports that it has experienced little difficulty 
in administering the requirement of reason- 
able accommodation. The provision therefore 
remains basically unchanged from the pro- 
posed regulation. 

Section 84.12 requires a recipient to make 
reasonable accommodation to the known 

physical or mental limitations of a handi- 

capped applicant or employee unless the 
recipient can demonstrate that the accom- 

modation would impose an undue hardship 
on the operation of its program. Where a 
handicapped person is not qualified to per- 
form a particular job, where reasonable 

accommodation does not overcome the 
effects of a person’s handicap, or where 
reasonable accommodation causes undue 

hardship to the employer, failure to hire or 
promote the handicapped person will not be 
considered discrimination, 

Section 84.12(b) lists some of the actions 
that constitute reasonable accommodation, 

The list is neither all-inclusive nor meant 
to suggest that employers must follow all of 

the actions listed. : 
Reasonable accommodation includes modi=- 

fication of work schedules, including part- 
time employment, and job restructuring. Job 
restructuring may entail shifting nonessen- 
tial duties to other employees. In other cases, 
reasonable accommodation may include phy- 
sical modifications or relocation of particular 
offices or jobs so that they are in facilities 

or parts of facilities that are accessible to and 
usable by handicapped persons. If such ac- 
commodations would eause undue hardship 

to the employer, they need not be made. 
Paragraph (c) of this section sets forth the 

factors that the Office for Civil Rights will 
consider in determining whether an accom- 
modation necessary to enable an applicant or 
employee to perform the duties of a job 
would impose an undue hardship. The weight 
given to each of these factors in making the 
determination as to whether an accommoda- 
tion constitutes undue hardship will vary 
depending on the facts of a particular situ- 
ation. Thus, a small day-care center might 
not be required to expend more than a nom- 
inal sum, such as that necessary to equip a 
telephone for use by a secretary with im- 
paired hearing, but a large school district 
might be required to make available a teach- 
er’s aide to a blind applicant for a teaching 
job. Further, it might be considered reason- 
able to require a state welfare agency to ac- 
commodate a deaf employee by providing an 
interpreter, while it would constitute an 

undue hardship to impose that requirement 
on a provider of foster home care services. 

The reasonable accommodation standard in 
§ 84.12 is similar to the obligation imposed 
upon federal contractors in the regulation 
implementing section 503 of the Rehabilita~ 
tion Act of 1973, administered by the De- 
partment of Labor. Although the wording of 
the reasonable accommodation provisions of 
the two regulations is not identical, the ob- 
ligation that the two regulations impose is 

the same, and the federal government's 
policy in implementing the two sections will 
be uniform. The Department adopted the 
factors listed in paragraph (c) instead of the 

“business necessity” standard of the Labor 
regulation because that term seemed inap- 
propriate to the nature of the programs op- 
erated by the majority of institutions subject 
to this regulation, e.g., public school systems, 
hospitals, colleges and universities, nursing 
homes, day-care centers, and welfare offices. 
The factors listed in paragraph (c) are in- 
tended to make the rationale underlying the 

business necessity standard applicable to and 
understandable by recipients of HEW funds. 

17. Tests and selection criteria. Revised 
§ 84.13(a) prohibits employers from using 
test or other selection criteria that screen out 
or tend to screen out handicapped persons 
unless the test or criterion is shown to be 
job-related and alternative tests or criteria 
that do not screen out or tend to screen out 
as many handicapped persons are not shown 

by the Director to be available. This para- 
graph is an application of the principle es- 

tablished under title VII of the Civil Rights 
Act of 1964 in Griggs v. Duke Power Com- 
pany, 401 U.S. 424 (1971). 

Under. the preposed section, a statistical 
showing of adverse impact on handicapped 
persons was required to trigger an employer's 
obligation to show that employment criteria 

4, 1977 

 



and qualifications relating to handicap were 
necessary. This requirement was changed be- 
cause the small number of handicapped per- 
sons taking tests would make statistical 
showings of “disproportionate, adverse ef- 
fect” difficult and burdensome. Under the 
altered, more workable provision, once it is 
shown that an employment test substan- 
tially limits the opportunities of handi- 
capped persons, the employer must show the 
test to be job-related. A recipient is no 
longer limited to using predictive validity 
studies as the method for demonstrating 

that a test or other selection criterion is in 
fact job-related. Nor, in all cases, are predic- 
tive validity studies sufficient to demonstrate 
that a test or criterion is job-related. In ad- 

dition, § 84.13(a) has been revised to place 
the burden on the Director, rather than the 

recipient, to identify alternate tests. 

Section 84.13(b) requires that a recipient 
take into account that some tests and cri- 
teria depend upon sensory, manual, or speak- 
ing skills that may not themselves be neces- 
sary to the job in question but that may 

make the handicapped person unable to 
pass the test. The recipient must select and 
administer tests so as best to ensure that 
the test will measure the handicapped per- 

son’s ability to perform on the job rather 
than the person’s ability to see, hear, speak, 
or perform manual tasks, except, of course, 

where such skills are the factors that the 
test purports to measure. For example, & 
person with a speech impediment may be 

perfectly qualified for jobs that do mot or 
need not, with reasonable accommodation, 
require ability to speak clearly. Yet, if given 
an oral test, the person will be unable to 
perform in a satisfactory manner. The test 

results will not, therefore, predict job per- 
formance but instead will reflect impaired 

speech. 
18. Preemployment inquiries. Section 84.14, 

concerning preemployment inquiries, gen- 
erated a large number of comments. Com= 
menters representing handicapped persons 
strongly favored a ban on preemployment 
inquiries on the ground that such inquiries 
are often used to discriminate against 
handicapped persons and are not necessary 
to serve any legitimate interests of em- 
ployers! Some recipients, on the other hand, 
argued that preemployment inquiries are 
necessary to determine qualifications of the 
applicant, safety hazards caused by a partic- 
ular handicapping condition, and accommo- 

dations that might be required. 

The Secretary has concluded that a gen- 
eral prohibition of preemployment inquiries 

is appropriate. However, a sentence has been 

added to paragraph (a) to make clear that 

an employer may inquire into an applicant’s 
ability to perform job-related tasks but may 
not ask if the person has a handicap. For 

example, an employer may not ask on an 

employment form if an applicant is visually 

impaired but may ask if the person has a 

current driver’s license (if that is a neces- 

sary qualification for the position in ques- 

tion). Similarly, employers may make in- 

quiries about an applicant's ability to per- 

\ form a job safely. Thus, an employer may 

not ask if an applicant is an epileptic but 

mey ask whether the person can perform 

a particular job without endangering other 

employees. : 

Section 84.14(b) allows preemployment in- 

quiries only if they are made in conjunction 

with required remedial action to correct past 

discrimination, with voluntary action to 

overcome past conditions that have limited 

the participation of handicapped persons, or 

with obligations under section 503 of _the 

rehabilitation Act of 1973. In these instances, 

paragraph (b) specifies certain safeguards 

that must be followed by the employer. 

FEDERAL 

RULES AND REGULATIONS 

Finally, the revised provision allows an em- 

ployer to condition offers of employment to 
handicapped persons on the results of medi- 

cal examinations, so long as the examina- 
tions are administered to all employees in a 
nondiscriminatory manner and the results 

are treated on 5 confidential basis. 
© 19. Specific acts of Discrimination. Sections 
84.15 (recruitment), 84.16 (compensation), 
84.17 (job classification ahd structure) and 
84.18 (fringe benefits) have been deleted 
from the regulation as unnecessarily duplica- 
tive of § 84.11 (discrimination prohibited). 
The deletion of these sections in no way 
changes the substantive obligations of em- 
ployers subject to this regulation from those 
set forth in the July 16 proposed regulation. 
These deletions bring the regulation closer 
in form to the Department of Labor's section 
503 regulation. 

Proposed § 84.18, concerning fringe bene-. 
fits, had allowed for differences in .benefits 
or contributions between handicapped -and 

nonhandicapped persons in situations only 

where such differences could be justified on 
an actuarial basis. Section 84.11 simply bars 
discrimination in providing fringe benefits 
and does not address the issue of actuarial 

differences. The Department believes that 
currently available data and experience do 
not demonstrate a basis for promulgating a 
regulation specifically allowing for differences 
in benefits or contributions. 

SuBPART C—PROGRAM ACCESSIBILITY 

In general, Subpart C prohibits the exclu- 
sion of qualified handicapped persons from 
federally assisted programs or activities be- 
cause a recipient’s facilities are inaccessible 

or unusable. 
20. Existing facilities. Section £84.22 main- 

tains the same standard for nondiscrimina- 
tion in regard to existing facilities as was 
included in the proposed regulation. The 
section states that a recipient's program or 
activity, when viewed in its entirety, must 
be readily accessible to and usable by handi- 

capped persons. Paragraphs (a) and (b) make 
clear that a recipient is not required to make 
each of its existing facilities accessible to 
handicapped persons if its program as a whole 
is accessible. Accessibility to the recipient’s 
program or activity may be achieved by a 
number of means, including redesign of 

equipment, reassignment of classes or other 
services to accessible buildings, and making 
aides available to beneficiaries. In choosing 
among methods of compliance, recipients are 
required to give priority consideration to 
methods that will be consistent with pro- 
vision of services in the most appropriate 
integrated setting. Structural changes in 

existing facilities are required only where 
there is no other feasible way to make the 

recipient’s program accessible. 
Under § 84.22, a university does not have 

to make all of its existing classroom build- 
ings accessible to handicapped students if 

some of its buildings are already accessible 
and if it is possible to reschedule or relocate 
enough classes so as to offer all required 
courses and a reasonable selection of elective 
courses in accessible facilities: If sufficient 
relocation of classes is not possible using 

existing facilities, enough alterations to en- 

sure. program accessibility are required.’ A 
university may not exclude a handicapped 

student from a specifically requested course 

offering because it is not offered in an acces- 

sible location, but it need not make every 

section of that course accessible. 

Commenters representing several institu- 

tions of higher education have suggested 

that it would be appropriate for one post- 

&econdary institution in a geographical area 

to be made accessible to handicapped persons 

and for other colleges and universities In 

REGISTER, VOL. 42, NO. 86-—WEDNESDAY, MAY 

22689 

that area to participate in that school’s pro- 
gram, thereby developing an educational con- 
sortium for the postsecondary education of 
handicapped students. The Department be- 
lieves that such a consortium, when devel- 
oped and applied only to handicapped per- 
sons, would not constitute compliance with 

§ 84.22, but would discriminate against quali- 
fied handicapped persons by restricting their 
choice in selecting. institutions of higher 
education and would, therefore, be inconsist- 
ent with the basic objectives of the statute. 

Nothing in this regulation, however, should 
be read as prohibiting institutions from 
forming consortia for the benefit of all stu- 

dents. Thus, if three colleges decide that it 
would be cost-efficient for one college to 
offer biology, the second physics, and the 
third chemistry to all students at the three 
colleges, the arrangement would not violate 
section 504. On the other hand, it would 
violate the regulation if the same institutions 
set up a consortium under which one college 
undertook to make its biology lab accessible, 
another its physics lab, and a third its chem- 
istry lab, and under which mobility-impaired 
handicapped students (but not other stu- 

dents) were required to attend the particular 
college that is accessible for the desired 
courses. 

Similarly, while a public school district 

need nct make each of its buildings com- 
pletely accessible, it may not make only one 
facility or part of a facility accessible if the 
result is to segregate handicapped students 
in a single setting. : 

All recipients that provide health, wel- 
fare, or other social services may also com- 
ply with § 84.22 by delivering services at al- 
ternate accessible sites or making home 
visits. Thus, for example, a pharmacist might 
arrange to make home deliveries of drugs. 
Under revised § 84.22(c), small providers of 
health, welfare, and social services (those 
with fewer than fifteen employees) may refer 

a beneficiary to an accessible provider of the 
desired service, but only if no means of meet- 

ing the program accessibility requirement 
other than a significant alteration in exist- 
ing facilities is available. The referring re- 

cipient has the responsibility of determining 
that the other provider is in fact accessible 
and willing to provide the service. The Sec- 
retary believes this “last resort” referral pro- 
vision is appropriate tp avoid imposition of 
additional costs in the health care area, to 
encourage providers to remain in the Med- 
icaid program, and to avoid imposing sig- 
nificant costs on small, low-budget providers 

such as day-care centers or foster homes. 
A recent change in the tax law may assist 

some recipients in meeting their obliga- 
tions under this section. Under section 2122 
of the Tax Reform Act of 1976, recipients 
that pay federal income tax are eligible to 
claim a tax deduction of up to $25,000 for 
architectural and transportation modifica- 
tions made to improve accessibility for 
handicapped persons. Many physicians and 
dentists, among others, may be eligible for 
this tax deduction. See 42 FR 17870 (April 4, 
1977), adopting 26 CFR 7.190. 

Several commenters expressed concern 
about the feasibility of compliance with the 
program accessibility standard. The Secre- 
tary believes that the standard is flexible 
enough to permit recipients to devise ways 
to make their programs accessible short of 
extremely expensive or impractical physical 
changes in facilities. Accordingly, the sec- 

tion does not allow for waivers. The Depart- 

ment is ready at all times to provide techni- 

cal assistance to recipients in meeting their 

program accessibility responsibilities. For 

this purpose, the Department is establishing 

a special technical assistance unit. Recipi~ 

ents are encouraged to call upon the unit 

4, 1977 

  
  

  
  

  
 



  

  

  

   
22690 

staff for advice and guidance both on struc- 
tural modifications and on other ways of 
meeting the program accessibility require- 
ment. : : 

- Paragraph (d) has been amended to re- 

    

quire recipients to make all nonstructural 
adjustments necessary for meeting the pro- 
gram accessibility standard within sixty 
days. Only where structural changes in fa- 

cilities are necessary will a recipient be per- 
mitted up to three years to accomplish 
program accessibility. It should be empha- 

sized that the three-year time period is mot 
a waiting period and that all changes must 
be accomplished as expeditiously as possible. 
Further, it is the Department’s belief, after 

consultation with experts in the field, that 
outside ramps to buildings can be con- 
structed quickly and at relatively low cost. 
Therefore, it will be expected that such 
structural additions will be made promptly 

to comply with § 84.22(d). 
The regulation continues to provide, as 

did the proposed version, that a recipient 
planning to achieve program accessibility 

by making structyral changes must develop 
a transition plan for such changes within six 
months of the effective date of the regulation. 
A number of commenters suggested extend- 
ing that period to one year. The Secretary 
believes that such ah extension is unneces- 
sary and unwise. Planning for any necessary 
structural changes should be undertaken 
promptly to ensure that they can be com- 
pleted within the three-year period. The ele- 

ments of the transition plan as required by 
the regulation remain virtually unchanged 
from the proposal but § 84.22(d) now in- 
cludes a requirement that the recipient make 

the plan available for public inspection. 
Several commenters expressed expressed 

concern that the program accessibility 

standard would result in the segregation of 
handicapped persons in educational institu- 

tions. The regulation will not be applied to 

permit such a result. See §84.4(c) (2) (iv), 

prohibiting unnecessarily separate treat- 

ment; § 84.35, requiring that students in ele- 

mentary and secondary schools be educated 
in the most integrated setting appropriate 

to their needs; and new § 84.43(d), applying 

the same standard to postsecondary educa- 

tion. ; 

We have received some comments from or- 

ganizations of handicapped persons on the 

subject of requiring, over an extended period. 

time, a barrier-free environment—that is, 

a the removal of all architectural 

barriers in existing facilities. The Depart- 

ment has considered these comments but 

has decided to take no further action ‘at 

this time concerning these suggestions, be- 

lieving that such action should only be con- 

sidered in light of experience in implement- 

ing the program accessibility standard. 

21. New construction. Section 84.23 re- 

quires that all new facilities, as well as altera- 

tions that could affect access to and use of 

existing facilities, be designed and con- 

structed in a manner so as to make the facil- 

ity accessible to and usable by handicapped 

persons. Section 84.23(a) has been amended 

go that it applies to: each newly con- 

structed facility if the construction was 

commenced after the effective date of the 

regulation. The words “if construction has 
commenced” will be considered to mean “if 

groundbreaking has taken place.” Thus, a re- 

cipient will not be required to alter the 
design of a facility that has progressed be- 

yond groundbreaking prior to the effective 
date of the regulation. 

Paragraph (b) requires certain alterations 

to conform to the requirement of physical 

accessibility in paragraph (a). If an altera- 
tion is undertaken to a portion of a building 
the accessibility of which could be improved 
by the manner in which the alteration is car- 

A 

RULES AND REGULATIONS 

ried out, the alteration must be made in that 
manner. Thus, if a doorway or wall is being 
altered, the door or other wall opening must 
be made wide enough to accommodate wheel- 

chairs. On the other hand, if the alteration 
consists of altering cellings, the provisions of 
this section are not applicable because this 
alteration cannot be done in a way that af- 
fects the accessibility of that portion of the 
building. The phrase “to the maximum ex- 
tent feasible” has been added to allow for 
the occasional case in which the nature of 
an existing facility is such as to make it im- 
practical or prohibitively expensive to reno- 
vate the building in a manner that results 
in its being entirely barrier-free. In all such 
cases, however, the alteration should provide 
the maximum amount of physical accessibil- 
ity feasible. 

As proposed, § 84.23 (c) required compli- 
ance with the American National Standards 
Institute (ANSI) standard on building ac-_ 
cessibility as the minimum necessary for 
compliance with the accessibility require- 
ment of §§ 84.23 (a) and (b). The reference 
to the ANSI standard created some ambigu- 
ity, since the standard itself provides for 
waivers where other methods are equally ef- 
fective in providing accessibility to the facil- 
ity. Moreover, the Secretary does not wish to 
discourage innovation in barrier-free. coh- 
struction by requiring absolute adherence to 
& rigid design standard. Accordingly, § 84.23 
(c) has been revised to permit departures 
from particular requirements of the ANSI 
standard where the recipient can demon- 
strate that equivalent access to the facility 
is provided. 

Section 84.23(d) of the proposed regula- 
tion, providing for a limited deferral of ac- 
tion concerning facilities that are subject to 
section 6502 as well as section 504 of the Act, 
has been deleted. The Secretary believes that 
the provision is unnecessary and inappropri- 
ate to this regulation. The Department will, 
however, seek to coordinate enforcement ac- 
tivities under this regulation with those of 
the Architectural and Transportation Bar- 
riers Compliance Board. 

SUBPART D—PRESCHOOL, ELEMENTARY, AND 
SECONDARY EDUCATION 

Subpart D sets forth requirements for non- 

discrimination in preschool, elementary, sec~ 
ondary, and adult education programs and 
activities, including secondary vocational 
education programs. In this context, the term - 
“adult education” refers only to those edu- 
cational programs and activities for adults 
that are operated by elementary and second- 
ary schools. 

The provisions of Subpart D apply to state 
and local educational agencies. Although the 
subpart applies, in general, to both public 
and private education programs and active 
ities that are federally assisted, §§ 84.32 and 
84.33 apply only to public programs and 
§ 84.39 applies only to private programs; 
§§ 84.35 and 84.36 apply both to public pro- 
grams and to those private programs that 
include special services for handicapped 
students. : : 

Subpart B generally conforms fo the stand- 
ards established for the education of handi- 
capped persons in Mills v. Board of Education 
of the Disirici of Columbia, 348 F. Supp. 866 
(D.DL. 1972), Pennsylvania Association for 
Retarded Children v. Commonwealth of 
Pennsylvania, 334 F. Supp. 1257 (E.D. 1971), 
343 F. Supp. 279 (ED.Pa. 1972), and Lebanks 
v. Spears, 60, F.R.D. 135 (ED. La. 1973), as 

well as In the Education of the Handicapped 
Act, as amended by Public Law 94-142 (the 
EHA). # 

The basic requirements common to those 
cases, to the EHA, and to this regulation are 
(1) that handicapped persons, regardless of 
the nature or severity of their handicap, be 
provided a free appropriate public education, 

(2) that handicapped students be educated 
with nonhandicapped students to the maxi- 
mum extent appropriate to their needs, (3) 
that educational agencies undertake to iden- 
tify and locate all unserved handicapped 
children, (4) that evaluation procedures be 
improved in order to avoid the inapproriate 
education that results from the misclassifica~ 
tion of students, and (5) that procedural 
safeguard be established to enable parents 
and guardians to influence decisions regard- 
ing the evaluation and placement of their 
children. These requirements are designed to 
ensure that no handicapped child is excluded 
from school on the basis of handicap and, 
if a recipient demonstrates that placement in 
& regular educational setting cannot be: 
achieved satisfactorily, that the student is 
provided with adequate alternative services 
suited to the student’s needs without addi- 
ticnal cost to the student’s parents or 

guardian. Thus, a recipient that operates a 
public school system must either educate 
handicapped children in its regular program 
or provide such children with an appropirate 
alternative education at public expense. 

It is not the intention of the Department, 
except in extraordinary circumstances, to re- 
view the result of individual placement and 
other educational decisions, so long as the 
school district complies with the “process” re- 
quirements of this subpart (concerning iden- 

tification and location, evaluation, and due 
process precedures). However, the Depart- 
ment will place a high priority on investigat- 
ing cases which may involve exclusion of a 

child from the education system or a pat- 
tern or practice of discriminatory placements 
or education. - ; 2 

22. Location and notification. Section 84.32 
requires public schools to take steps annually 
to identify and locate handicapped children 
who are not receiving an education and to 
publicize to handicapped children and their 

parents the rights and duties established by 
section 504 and this regulation. This section 
has been shortened without substantive 
change. r . 

23." Free appropriate public education. 
Former §§ 84.34 (“Free education”) and 84.- 
36(a) (“Suitable education”) have been con- 
solidated and revised in new § 84.33. Under 

§ 84.34(a), a recipient is responsible for pro- 
viding a free appropriate public education to 
each qualified handicapped person who is in 
the recipient’s jurisdiction. The word “in” 
encompasses the concepts of both domicile 

and actual residence. If a recipient places a 
child in a program other than its own, it re-- 
mains financially responsible-for the child, 
whether or not the other program is operated 
by another recipient or educational agency. 
Moreover, -a recipient may not place a child 
in a program that is inappropriate or that 
otherwise violates the requirements of Sub- 
part D. And in no case may a recipient refuse 
to provide services to a'handicapped child 
in its jurisdiction because of another person’s 
or entity’s failure to assume financial re- 
sponsibility. E ; 

Section 84.33(b) concerns the provision of 
appropriate educational services to handi- 
capped children. To be appropriate, such 
services must be designed to meet handi- 
capped children’s individual educational 
needs to the same extent that-those of non- 
handicapped children are met. An appropri- 

ate education could consist of education in 
regular .classes, education in regular classes 
with the use of supplementary services, or 
special education and related services. Spe-~ 
cial education may include specially designed 
instruction in classrooms, at home, or in 
private or public institutions and may be 
accompanied by such related services as de- 
velopmental, corrective, and other supportive 
services (including psychological, counsel- 
ing, and medical diagnostic services). The 
placement of the child must however, be con- 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 4, 1977 _ 

   



sistent with the requirements of § 84.34 and 
be suited to his or her educational needs. 

The quality of the educational services 
provided to handicapped students must 
equal that of the services provided to non- 
handicapped students; thus, handicapped 
student’s teachers must be trained in the in- 
struction of persons with the handicap in 
question and appropriate materials and 
equipment must be available. The Depart- 
ment is aware that the supply of adequately 
trained teachers may, at least at the outset 
of: the imposition of this requirement, be 
insufficient to meet the demand of all re- 
cipients. This factor will be considered in 
determining the appropriateness of the rem- 
edy. for noncompliance with this section. A 
new § 84.33(b) (2) has been added, which 
allows this requirements to be met through 
the full implementation of an individualized 
education program developed in accordance 

with the standards of the EHA. 
Paragraph (c) of §84.33 sets forth the 

specific financial obligations of a recipient. 
If a recipient does not itself provide handi- 
capped persons with the requisite services, 
it must assume the cost of any alternate 
placement! If, however, a recipient offers 
adequate services and if alternate placement 
is chosen by a student’s parent or guardian, 
the recipient need not assume the cost of 
the outside services. (If the parent or guard- . 
ian believes that his or her child cannot be 
suitably educated in the recipient’s program, 
he or she may make use of the procedures 
established in § 84.36.) Under this paragraph, 
a recipient’s obligation extends beyond the 
provision of tuition payments in the case of 
‘placement outside the regular program. Ade- 
quate transportation must also be provided. 
Recipients must also pay for psychological 
services and those medical services necessary 
for diagnostic and evaluative purposes. 

If the recipient places a student, because 
of his or her handicap, in a program that 
necessitates his or her being away from 
home, the payments must also cover room 
and board and nonmedical care (including 

custodial and supervisory care). When resi- 
dential care is necessitated not by the stu- 
dent’s handicap but by factors such as the 
student’s home conditions, the recipient is 
not required to pay the cost of room and 

board. 
Two new sentences have been added to 

paragraph (c¢)(1) to make clear that a re- 
cipient’s financial obligations need not be 
met solely through its own funds. Recipients 
may rely on funds from any public or private 
source including insurers and similar third 
parties, : 

The EHA requires a free appropriate edu- 
cation to be provided to handicapped chil- 
dren “no later than September 1, 1978,” but 
section 504 contains no authority for delay- 
ing enforcement. To resolve this problem, a 
new paragraph (d) has been added to § 84.33. 
Section 84.33(d)° requires recipients to 
achieve full compliance with the free appro- 
priate public education. requirements of 

§ 84.33 as expeditiously as possible, but in 
no event later than'’September 1, 1978. The 
provision also makes clear that, as of the 
effective date of this regulation, no recipi- 
ent may exclude a qualified handicapped 

child from its educational program. This 
provision against exclusion is consistent with 

. the order of providing services set forth in 
section 612(3) of the EHA, which places the 
highest priority on providing services to 
handicapped children who are not receiving 

an education. 

24, Educational seiting. Section 84.34 pre- 
scribes standards for educating handicapped 

persons with nonhandicapped persons to the 
maximum extent appropriate to the needs 
of the handicapped person in question. A 
handicapped student may be removed from 
the regular educational setting only where 

FEDERAL 

RULES AND REGULATIONS 

the recipient can show that the needs of the 
student would, on balance, be served by 
placement in another setting. 

Although under § 84.34, the needs of the 
handicapped person are determinative as to 
proper placement, it should be stressed that, 
where 8 handicapped student is so disruptive 
in a regular classroom that the education 

of other students is significantly impaired, 
the needs of the handicapped child cannot 
be met in that environment. Therefore, regu- 
lar placement would not be appropriate to 
his or her needs and would not be required 

by § 84.34. ; 
Among the factors to be considered in plac- 

ing a child is the need to place the child as 
close to home as possible. A new sentence has 
been added to paragraph (a) requiring recip- 
ients to take this factor into account. As 
pointed out im several comments, the par- 
ents’ right under §84.36 to challenge the 
placement of their child extends not only 
to placement in special classes or separate 

schools but also to placerhent in a distant 
school and, in particular, to residential place- 
ment. An equally appropriate educational 
program may exist closer to home; this is- 
sue may be raised by the parent or guardian 

under §§ 84.34 and 84.36. 
New paragraph (b) specifies that handi- 

capped children must also be provided non- 
academic services in ‘as integrated a setting 
as possible. This requirement is especially 
important for children whose educational 
needs necessitate their being solely with 
other handicapped children during most of 
each day. To the maximum extent appro- 

priate, children in residential settings are 
also to be provided opportunities for par- 
ticipation with other children. 

Section 84.34(c) (formerly § 84.38) re- 

quires that any facilities that are identifi- 
able as being for handicapped students be 
comparable in quality to other .facilities of 
the recipient. A number of comments ob- 
jected to this section on the basis that it 
encourages the creation and maintenance 
of such facilities. This is not the intent of 
the provision. A separate facility violates sec- 
tion 504 unless it is indeed necessary to the 

provision of an appropriate education to cer- 
tain handicapped students. In those in- 
stances in which such facilities are neces- 
sary (as might be the case, for example, for 

severely retarded persons), this provision re« 
quires that the educational services pro- 
vided be comparable to those provided in 
the facilities of the recipient that are not 
identifiable as being for handicapped per- 

sons. 
25. Evaluation and placement. Because the 

failure to provide handicapped persons with 
" an appropriate education is so frequently the 
result of misclassification or misplacement, 
section 84.33(b) (1) makes compliance with 

its provisions contingent upon adherence to 
certain procedures designed to ensure ap- 
propriate classification and placement. These 
procedures, delineated in §§ 84.35 and 84.36, 

“are concerned with testing and other evalua- 
. tion methods and with procedural due proc- 

ess rights. 

Section 84.35(a) requires that an individ- 

ual evaluation be conducted before any ac- 
tion is taken with respect either to the initial 
placement of a handicapped child in a regu- 
lar or special education program or to any 
subsequent significant change in that place- 
ment. Thus, a full reevaluation is not re- 
quired every time an adjustment in place- 
ment is made. “Any action” includes denials 

of placement. 

Paragraphs {(b) and (c) of § 84.35 estab- 
lishes procedures designed to ensure that 
children are not misclassified, unnecessarily 
labeled as being handicapped, or incorrectly 
placed because of inappropriate selection, 
administration, or interpretation of evalua- 

REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 

. 22691 

tion materials. This problem has been exten- 
sively documented in “Issues in the Classi- 

/ 

fication of Children,” a report by the Proj- 

ect on Classification of Exceptional Children, 
in which the HEW Interagency Task Force 
participated. The provisions of these para= 
graphs are aimed primarily at abuses in the 
placement process that result from misuse 
of, or undue or misplaced reliance on, stand- 
ardized scholastic aptitude tests. 

Paragraph (b) has been shortened but not 
substantively changed. The requirement in 
former subparagraph (1) that recipients pro- 
vide and administer evaluation materials in 

the native language of the student has been 
deleted as unnecessary, since the same re- 
quirement already exists under title VI and 
is more appropriately covered under that 
statute. Subparagraphs (1) and (2) are, in 
general, intended to prevent misinterpreta- 
tion and similar misuse of test scores and, in 
particular, to avoid undue reliance on gen- 

eral intelligence tests. Subparagraph (3) re- 
quires a recipient to administer tests to a 
student with impaired sensory, manual, or 
speaking skills in whatever manner is neces- 
sary to avoid distortion of the test results 
by the impairment. Former subparagraph (4) 

has been deleted as unnecessarily repeti- 
tive of the other provisions of this para- 
graph. : 

Paragraph (c) requires a recipient to draw 
upon 8 variety of sources in the evaluation 
process so that the possibility of error in 
classification is minimized. In particular, it 
requires that all significant factors relating 
to the learning process, including adaptive 
behavior, be considered. (Adaptive behavior 
is the effectiveness with which the individual 
meets the standards of personal independ- 

ence and social responsibility expected of his 
or her age and cultural group.) Information 
from all sources must be documented and 

considered by a group of persons, and the 
procedure must ensure that the child is 
placed in the most integrated setting ap- 
propriate. : . 

The proposed regulation would have re- 
quired a complete individual reevaluation 
of the student each year. The Department 
has concluded that it is inappropriate in 
the section 504 regulation to require full re- 
evaluations on such a rigid schedule. Accord- 
ingly, § 84.35(c) requires periodic reevalua- 
tions and specifies that reevaluations in ac- 
cordance with the EHA will constitute com- 
pliance. The proposed regulation implement- 
ing the EHA allows reevaluation at three- 
year intervals except under certain specified 

circumstances. Ln 

Under § 84.36, a recipient must establish a 
system of due process procedures to be af- 
forded to parents or guardians before the 

recipient takes any action regarding the iden- 
tification, evaluation, or educational place- 

ment of*a person who, because of handicap, 
needs or is believed to need special educa- 
tion or related services. This section has been 
revised. Because the dug process procedures 

of the EHA, incorporated by reference in the 
proposed section 504 regulation, ate inap- 
propriate for some recipients not subject to 
that Act, the section now specifies minimum 
necessary procedures: notice, a right to in- 
spect records, an impartial hearing with a 
right to representation by counsel, and a 
review procedure. The EHA procedures re- 
main one means of meeting the regulation’s 
due process requirements, however, and are 
recommended to recipients as a model. : 

26. Nonacademic services. Section 84.3% re- 
quires a recipient to provide nonacademic 

and extracurricular services and activities in 
such manner as is necessary to afford handi- 
capped students an equal opportunity for 
participation. Because these services and ac- 
tivities are part of a recipient’s education 
program, they must, in accordance with the 

a, 1977 

  

  

  
 



  

  

  

  

  

  

  

  

22692 
provisions of § 84.34, be provided in the most 
integrated setting appropriate. 

Revised paragraph (c)(2) does permit 

separation or differentiation with respect to 
the provision of physical education and ath- 
letics activities, but only if qualified handi- 

capped students are also allowed the oppor- 
tunity to compete for regular teams or 
participate in regular activities. Most handi- 
capped students are able to participate in 

one or more regular physical education and 
athletics activities. For example, a student. in 
a wheelchair can participate in regular arch- 
ery course, as can a deaf student in a 
wrestling - course. . 

Finally, the one-year transition period pro- 
vided in former § 84.37(a) (3) was deleted in 

response to the almost unanimous objection 
of commenters to that provision. 

27. Preschool and adult education. Section 
84.38 prohibits discrimination on the basis of 
handicap in preschool and adult education 
programs. Former paragraph (b), which em- 

phasized that compensatory programs for 
disadvantaged children are subject to section 
504, has been deleted as unnecessary, since it 
is comprehended by paragraph (a). 

28. Private education. Section 84.39 sets 
forth the requirements applicable to recip- 
fents that operate private education pro- 
grams and activities. The obligations of these 

recipients have been changed in two signifi- 
cant respects: first, private schools are sub- 
ject to the evaluation and due process pro- 
visions of the subpart only if they operate 
special education programs; second, under 
§ 84.39(b), they may charge more for pro- 
viding services to handicapped students than 
to nonhandicapped students to the extent 
that additional charges can be justified by 

increased costs. 
Paragraph (a) of § 84.39 is intended to 

make clear that recipients that operate pri- 
vate education programs and activities are 
not required to provide an appropriate educa- 
tion to handicapped students with special 
educational needs if the recipient does not 
offer programs designed to meet those needs. 
Thus, a private school that has no program 
for mentally retarded persons is neither re- 
quired ‘to admit such a person into its pro- 
gram nor to arrange or pay for the provision 
of the person’s education in another program. 

A private recipient without a special program 
for blind students, however, would not be 
permitted to exclude, on the basis of blind- 
ness, a blind. applicant who is able to par- 

ticipate in the regular program with minor 
adjustments in the manner in which the 
program is normally offered. 

SUBPART E—POSTSECONDARY EDUCATION 

Subpart E prescribes requirements.for non- 
discrimination in recruitment, admission, 
and treatment of students in postsecondary 
education programs and-activities, including 

vocational education. 

29. Admission and recruitment. In addi- 
tion to a general prohibition of discrimina- 
tion on the basis of handicap in § 84.42(a), 
the regulation delineates, in § 84.42(b), spe- 
cific prohibitions concerning the establish- 

ment of limitations on admission of handi- 
capped students, the use of tests or selection 

criteria, and preadmission inquiry. Several 
changes have been made in this provision. 

Section 84.42(b) provides that postsecond- 

ary educational institutions may not use any 

test or criterion for admission that has a 
disproportionate, adverse effect on handi- 

capped persons unless it has been validated 
as a predictor of academic success and alter- 
nate tests or criteria with a less dispropor- 
tionate, adverse effect are shown by the De- 
partment to be available. There are two sig- 
nificant changes in this approach from the 
July 16 proposed regulation. 

RULES AND REGULATIONS 

First, many commenters expressed concern 

that § 84.42(b) (2) (ii) could be interpreted 
to require a “global search” for alternate 
tests thgt do not have a disproportionate, 
adverse impact on handicapped persons. This 
was not the intent of the provision. and, 

therefore, it has been amended to place the 
burden on the Director of the Office for Civil 
Rights, rather than on the recipient, to iden- 

tify alternate tests. : 
Second, a new paragraph (d), concerning 

validity studies, has been added. Under the 
proposed regulation, overall success in an 
education program, not just first-year grades, 
was the criterion against which admissions 
tests were to be validated. This approach has 
been changed to reflect the comment of pro- 
fessional testing services that .use of first- 
year grades would be less disruptive of pres- 

ent practice and that periodic validity 
studies against overall success in the educa- 
tion program would be sufficient check on the 
reliability of first-year grades. 

Section 84.42(b) (3) also requires a recip- 
ient to assure itself that admissions tests are 
selected and administered to applicants with 
impaired sensory, manual, or speaking skills 
in such manner as is necessary to avoid un- 
fair distortion of test results. Methods have 

been developed for testing the aptitude and 
achievement of persons who are not able to 
take written tests or even to make the marks 
required for mechanically scored objective 
tests; in addition, methods for testing per- 
sons with visual or hearing impairments are 
available. A recipient, under this paragraph, 
must assure itself that such methods are 
used with respect to the selection and ad- 
ministration of any admissions tests that it 
uses. : 

Section 84.42 (kb) (3) (iii) has been amended 
to require that admissions tests be admin- 
istered in facilities that, on the whole, are 
accessible. In this context, “on the whole” 
means that not all of the facilities need be 
accessible so long as a sufficient number of 
facilities are available to handicapped per- 

sons. 
Revised § 84.42(b) (4) generally prohibits 

preadmission inquiries as to whether an ap- 
plicant has a handicap. The considerations 
that led to this revision are similar to those 
underlying the comparable revision of § 84.14 
on preemployment inquiries. The regulatien 

does, however, allow inquiries to be made, 
after admission but before enrollment, as to 
handicaps that may require accommodation. 

New paragraph (c) parallels the section on 
praesmployment inquiries and allows post- 

secondary institutions to inquire about ap- 
plicants’ handicaps before admission, sub- 
Ject to certain safeguards, if the purpose of 
the inquiry is to take remedial action to cor- 
rect past discrimination or to take voluntary 
action to overcome the limited participation 
of handicapped persons in postsecondary 
educational institutions. 

Proposed § 84.42(c), which would have al- 
lowed different admissions criteria in e¢er- 
tain cases for handicapped persons, was 
widely misinterpreted in comments from 
both handicapped persons and recipients. 
We have concluded that the section is un- 
necessary, and it has been deleted. 

30. Treaiment of students. Section 84.43 

contains general provisions prohibiting the 
discriminatory treatment of qualified handi- 

capped applicants. Paragraph (b) requires 
recipients to ensure that equal opportuni- 
ties are provided to its handicapped stu- 
dents in education programs and activities 
that are not operated by the recipient. The 
recipient must be satisfied that the outside 
education program or activity as a whole is 
nondiscriminatory. For example, a college 
must ensure that discrimination on the basis 
of handicap does not occur in connection 
with teaching assignments of student teach- 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 

\ 

ers in elementary or secondary schools not 
operated by the college. Under the “as a 
whole” wording, the college could continue 
to use elementary or secondary school sys- 
tems that discriminate if, and only if, the 
college’s student teaching program, when 
viewed in its entirety, offered handicapped 
student teachers the same range and quality 
of choice in student teaching assignments 

afforded nonhandicapped students. 
Paragraph (c)* of this section prohibits a 

recipient from excluding qualified handi- 

capped students from any course, course of 
study, or other part of its education pro- 
gram or activity. This paragraph is designed 
to eliminate the practice of excluding hand- 
icapped persons from specific courses and 
from areas of concentration because of fac- 
tors such as ambulatory difficulties of the 
student or assumptions by the recipient that 
no job would be available in the area in 
question for a person with that handicap. 

New paragraph (d) requires postsecondary 
institutions to operate their programs and 
activities so that handicapped students are 
provided services in the most integrated set- 
ting appropriate. Thus, if a college had sev~- 
eral elementary physics classes and had 
moved one such class to the first floor of 

the science building to accommodate stu- 
dents in wheelchairs, it would be a viola- 
tion of this paragraph for the college to con- 
centrate handicapped students with no mo- 
bility impairments in the same class. 

31. Academic adjustments. Paragraph (a) 
of § 84.44 requires that a recipient make cer- 
tain adjustments to academic requirements 
and practices that discriminate or have the 
effect of discriminating on the basis of handi- 
¢ap. This requirement, like its predecessor in 
the proposed regulation, does not obligate an 
institution to waive course or other academic 
requirements. But such institutions must 
accommodate those requiréments to the 

needs of individual handicapped students. 
For example, an institution might permit an 
otherwise qualified handicapped student who 
is deaf to substitute an art appreciation or 
music history course for a required course in 
music appreeiation or could modify the man- 
ner in which the music appreciation course 

is conducted for the deaf student. It should 
be stressed that academic requirements that 
can be demonstrated by the recipient to be 

essential to its program of instruction or to 
particular degrees need not be changed. 

Paragraph (b) provides that postsecondary 
institutions may not impose rules that have 
the effect of limiting the participation of 
handicapped students in the education pro- 
gram. Such rules include prohibition of tape 
recorders or braillers In classrooms and dog 
guides in campus buildings. Several recipi- 
ents expressed concern about allowing stu- 

dents to tape record lectures because the 
professor may later want to copyright the lec- 
tures. This problem may be solved by requir- 
ing students to sign agreements that they: 

will not release the tape recording or tran- 
scription or otherwise hinder the professor's 
ability to obtain a copyright. - 

Paragraph (c¢) of this section, concerning 
the administration of course examinations to 
students with impaired sensory, manual, or 
speaking skills, parallels the regulation’s pro- 

visions on admissions testing (§84.42(b)) 
and will be similarly interpreted. 

Under § 84.44(d), a recipient must ensure 
that no handicapped student is subject to 
discrimination in the recipient’s program be- 
cause of the absence of necessary auxiliary 

educational aids. Colleges and universities 
expressed concern about the costs of com- 
pliance with this provision. . : : 

The Department emphasizes that recipi- 
ents can usually meet this obligation by as- 
sisting students in using existing resources 
for auxiliary aids such as state vocational re- 

4, 1977 

  

T
E
 

—
 

  

  

 



  
  

  

habilitation agencies and private charitable 
organizations. Indeed, the Department an- 
ticipates that the bulk of auxiliary aids will 
be paid for by state and private agencies, 
not by colleges or universities. In those cir- 
cumstances where the recipient institution 
must provide the educational auxiliary aid, 
the institution has flexibility in choosing 
the methods by which the aids will be sup- 
plied. For example, some universities have 
used students to work with the institution’s 
handicapped students. Other institutions 
have used existing private agencies that tape 
texts for handicapped students free of charge 

in order to reduce the number of readers 
needed for visually impaired students. 

As long as no handicapped person is ex- 
cluded from a program because of the lack 

of an appropriate aid, the recipient need not 
have all such aids on hand at all times. Thus, 
readers need not be available in the recipi- 
ent’s library at all times so long as the sched- 
ule of times when a reader is available is es- 
tablished, is adhered to, and is sufficient. Of 
course, recipients are not required to main- 

tain a complete braille library. 
32. Housing. Section B84.45(a) requires 

postsecondary institutions to provide hous- 
ing to handicapped students at the same cost 
as they provide it to other students and in 
a conveniént, accessible, and comparable 
manner. Commenters, particularly blind per- 
sons, pointed out that some handicapped per- 
sons can live in any college housing and need 
not wait to the end of the transition period 

in Subpart C to be offered the same variety 
and scope of housing accommodations given 
to nonhandicapped persons. The Department 
concurs with this position and will interpret 

this section accordingly. . 
A number of colleges and universities. re- 

acted negatively to paragraph (b) of this 
section. It provides that, if a recipient as- 
sists in making off-campus housing available 
to its students, it should develop and imple- 
ment procedures to assure itself that off- 
campus housing, as a whole, is available to 
handicapped students. Since postsecondary 
institutions are presenfly required to assure 
themselves that off-campus housing is pro- 
vided in a manner that does not discrimi- 
nate on the basis of sex (§ 86.32 of the title 
IX regulation), they may use the procedures 
developed under title IX in order to comply 

with § 84.45(b). It should be emphasized that 
not. every off-campus living accommodation 
need be made accessible to handicapped 

persons. 
33. Health and insurance. Section 84.46 of 

the proposed regulation, providing that re- 
cipients may not discriminate on the basis 
of handicap in the provision of health and 
related services, has been deleted as dupli- 
cative of the general provisions of section 
84.43. This deletion represents no change in 
the obligation of recipients to provide non- 
discriminatory health and insurance plans. 
The Department will continue to require that 
nondiscriminatory health services be pro- 
vided to handicapped students. Recipients are 
not required, however, to provide specialized 
services and aids to handicapped persons in 

health programs. If, for example, a college 

infirmary treats only simple disorders such 

as cuts, bruises, and colds, its obligation to 

handicapped persons is to treat such disor- 

ders for them. 
384. Financial assistance. Section 84.46(a) 

(formerly § 84.47), prohibiting discrimination 

in providing financial assistance, remains 

substantively the same. It provides that 

recipients may not provide less assistance to 

or limit the eligibility of qualified handi- 

capped persons for such assistance, whether 

the assistance is provided directly by the 

recipient or by another entity through the 

recipient’s sponsorship. Awards that are made 

under wills, trusts, or similar legal instru- 

  

RULES AND REGULATIONS 

ments in a discriminatory manner are per- 
missible, but only if the overall effect of the 
recipient’s provision of financial assistance 
is not discriminatory on the basis of han- 
dicap. 

It will not be considered discriminatory to 
deny, on the basis of handicap, an athletic 
scholarship to a handicapped person if the 
handicap renders the person unable to qual- 
ify for the award. For example, a student who 
has a neurological disorder might be denied 
a varsity football scholarship on the basis of 
his inability to play football, but a deaf per= 
son could not, on the basis of handicap, be 
denied a scholarship for the school’s diving 
team. The deaf person could, however, be 
denied a scholarship on the basis of compar- 

ative diving ability. 
Commenters on § 84.46 (b), which applies 

to assistance in obtaining outside employ- 
ment for students, expressed similar con- 
cerns to those raised under § 84.43(b), con- 
cerning cooperative programs. This para- 
graph has been changed in the same man- 
ner as §84.43(b) to include the “as a 
whole” concept. and will be interpreted in 
the same manner as § 84.43(b). 

35. Nonacadeniic services. Section 84.47 
(formerly § 84.48) establishes nondiscrimi- 
nation standards for physical education and 
athletics counseling and placement services, 
and social organizations. This section sets 
the same standards as does § 84.38 of Sub- 
part D, discussed above, and will be inter- 
preted in a similar fashion. 

SUBPART F-—HEALTH, WELFARE, AND SOCIAL 

SERVICES 

Subpart F applies to recipients that 
operate health, welfare, and social service 
programs. The Department received fewer 
comments on this subpart than on others. 
Although many commented that Subpart 

F lacked specificity, these commenters pro- 
vided neither concrete suggestions nor addi- 
tions. Nevertheless, some changes have been 
made, pursuant to comment, to clarify the 
obligations of recipients in specific areas. 

In addition, in an effort to reduce duplica= 
‘tion in the regulation, the section govern- 
ing recipients providing health services 
(proposed § 84.52) has been . consolidated 
with the section regulating providers of wel- 
fare and social services (proposed §84.53). 
Since the separate provisions that appeared 
in the proposed regulation were almost 
identical, no substantive change should be 
‘nferred from their consolidation. 

Several commenters asked whether Sub- 
part 'F applies to vocational rehabilitation 
agencies whose purpose is to assist in the 
rehabilitation of handicapped persons. To 
the extent that such agenciés receive 
financial assistance from the Department, 
they are covered by Subpart F and all other 
relevant subparts of the regulation. Nothing 
in this regulation, however, precludes such 
agencies from servicing only handicapped 
persons. Indeed, § 84.4(c) permits recipients 
to offer services or benefits that are limited 
by federal law to handicapped persons or 

classes of handicapped persons. 
Many comments suggested requiring state 

health, welfare, and social service agencies 
to take an active role in the enforcement 
of section 504 with regard to local health 
and social service providers. The Department 
believes that the possibility for federal-state 
cooperation in the administration and en- 
forcement of section 504 warrants further 
consideration. Moreover, the Department will 
rely largely on state Medicaid agencies, as it 

has under title VI, for monitoring compli- 
ance by individual Medicaid providers. 

A number of comments also discussed 
whether section 504 should be read to re- 
quire payment of compensation to institu- 
tionalized handicapped patients who per- 

FEDERAL REGISTER, VOL. 42, NO. 86—WEDNESDAY, MAY 
~~ 

22693 

form services for the institution In which 
they reside. The Department of Labor has 
recently issued a proposed regulation under 
the Fair Labor Standards Act (FLSA) that 
covers the question of compensation for in- 
stitutionalized persons. 42 FR 15224 
(March 18, 1977). This Department will seek 
information and comment from the Depart- 
ment of Labor concerning that agency's ex=- 
perience administering the FLSA regulation. 

86. Health, welfare, and other social serv- 
ice providers. As already noted, § 84.53 has 
been combined with proposed § 84.53 into 
a single section covering health, welfare, 
and other social services. Section 84.52(a) 

“has been expanded in several respects. The 
addition of new paragraph (a)(2) is in- 
tended to make clear the basic requirement 
of equal opportunity to receive benefits or 
services in the health, welfare, and social 
service areas. The paragraph parallels §§ 84.4 
(b) (ii) and 84.43(b). New paragraph (a) (3) 
requires the provision of effective benefits 
or services, as defined in §84.4(b) (2) (ie, 
benefits or services which *afford handi- 
capped persons equal opportunity to obtain 
the same result (or) to gain the same 

benefit » * +7), 
Section 84.52(a) also includes provisions 

concerning the limitation of benefits or serv- 
ices to handicapped persons and the sub- 
jection of handicapped persons to different 
eligibility standards. (These provisions were 
previously included in the welfare recipient 
section (§ 84.53(a)).) One common miscon= 

ception about the regulation is that it would 
require specialized hospitals and other health 
care providers to treat all handicapped per- 
sons. The regulation makes no such require- 
ment. Thus, a burn treatment center need 
not provide other types of medical treatment 
to handicapped persons unless it provides 
such medical services to nonhandicapped 
persons. It could not, however, refuse to 
treat the burns of a deaf person because of 
his or her deafness, 
Commenters had raised the question of 

whether the prohibition against different 
ystandards of eligibility might preclude recip- 
ients from providing special services to 
handicapped persons or classes of handi- 
capped persons. The regulation will not be so 
interpreted, and the specific section in gques- 
tion has been eliminated. Section 84.4(c) 
makes clear that special programs for handi- 
capped persons are permitted. 
. A new paragraph (a) (5) concerning the 

provision of different or separate services or 
benefits has been added. This provision pro- 
hibits such treatment unless necessary to 
provide qualified handicapped persons with 
benefits and services that are as effective as 
those provided to others. 

Section 84.52(a) (2) of the proposed regu- 
lation has been omitted as duplicative of re- 
vised §84.22 (b) and (c) in Subpart C. As 
discussed above, these sections permit health 
care providers to arrange to meet patients in 
accessible facilities and to make referrals in 
carefully limited circumstances. 

Section 84.52(a) (3) of the proposed regu- 
lation has been redesignated § 84.52(b) and 
has been amended Yo cover written material 
concerning waivers of rights or consent to 
treatment as well as general notices con- 
cerning health benefits or services. The sec- 
tion requires the recipient to ensure that 
qualified handicapped persons are not denied 
effective hotice because of their handicap. 
For Example, recipients could use several dif- 
ferent types of notice in order to reach per- 
sons with impaired vision or hearing, such 
as brailled messages, radio spots, and tactile 
devices on cards or envelopes to inform blind 
persons of the need to call the recipient for 

“further information. 
Sections 84.52(a) (4), 84.52(a) (5), and 

84.52(b) have been omitted from the regula- 

a, 1977 

  

      

 



TTY PRA rt. . : a 
BI lL A SR . RRR OE 3 T DERE STRPIIR tft PLM Ek Sa Lo i oS 

  

$4 i 2 
ar as RT RY LY aa “pm Fd 1 Ls 7/38 { ~ 

AF ALAA Ve ty Ben 

Ta 

hs 
In fulfilling obligations under Title VI of the Civil Rights Act of 1964, “nd 

he State Board of iloalth will inform its own departmental staff Ly distributing ine |? 

the chove Act and FE Ind regulations to all menbers of the stuff; 

gs to explain the duties and obligaticns under the Act; and by 

nducting staff neetings to discuss the role of the state end local agencles in regard 

! 

ii (5 PEG Ser 1 ig: SURE BRE Ti ALalhl. Lib Llealt 

HOTITLEVICGF Tul CIVIL RIGHTS ACT OF YU64 

    

      

Persons outside the immediate state agency will be Informed of Title VI of 

he Civil Rights Act of 1964 through letters of cxplunatlon when such infoyuation is 

oupht by thes; oral explanation when consultants are in the field; the nrontiily 

ublication of the. lndiena State board of estahe vhich has widesprozd circulation; and 

hrouph explanations to various groups who tour the State Board of ticalth, 

  

ue
 

Potential participants of programs under Title VI will be reached by lotters 

f inforzation zbout the Act hen they seek information concerning funds and/or by 

nciuding a copy of the Act as an enclosure, vith specific reference, when responding 

ro thelr request for inforcation, 

e rethods of reaching all other persons who may be interested will be much 

the above, This will be done by infornation disseminated through the 

jcatien, oral cxplenntions by staff vhea appropriate, and explanations 

uring the State Courd of Hoeplth facility. 

"
    

    
ocal azencies and cther potential recipients wlll be instructed or inferred 

of their obligations under Title VI by staff of the Stute board of liealth, These 

s7oups will be roackod through contscts with the Hesplita) Assccistion, health officer 

eetings held during the year, staff in-service treining prograns of local hoonlth 

epartacnts, and the menthly magazine puvlisied and distriloted by the State Board of 

icaith, 

Purchasing for the Indiana State board of licalth is accorplished by a 

Central Parcaasing Agency under the State Deparinent of Adzinistration, Tho reverse 

side of the ourchase ‘order form under item 16, Law Compliance, is the statement that 

"In performanco of this Crdur, the Seller agrees to corply at all tives with all 

applicable Fedaral, State and local avs und regulations,” 

The State Agency, in the development of their plens for Corprechensive Yoel 

Jisnlth Services will insure that the rood of all citizens of the State are included :! 

in such plans, Special efforts will be rade to jrovide adequate health services = 

especially for those living in hard pressed are vas of the State and other disadvantoeged °F 

groups, Membership of the State health planning council will be sclected on a non- 

discriminatory basis. 

As a part of the administration of Title VI, a person or persons who make 

ouplaints to the Indiana State Heard of lealth, alleging discriminatory practices, 

Fes forth in Title VI or in the regulations relating to the Title, by the Indiana 4 

State soazd of lealth, or by an agency, institution or vendor with which the Indiunalfv: 

State Board of ilealth has financial transactions involving {federal grant funds will | 

be required to submit a signed complaint in writing. The complainant will be asked 

"to indicate the type of discrimination alleged, time and pla ce of alleged discrinina- 

tion and other pertinent facts and circumstances of alleged discrinination, 

[. 

of 

§ 

 



  

Complaints shall be sent to the state henlth commissiener or, in the case 
R of cenmplaints coulng to staff members, the health commissioner will be advised of 

such compluints, The stete health commissioner will direct the eppropriate division 
{within the State Board of llealth to take necossury stops to investignte the complaint, 

In cases of nu complaint involving o local agency, the agency head will be informed of 
the complaint, requested to Investigate the complaint, and render 2 rejort to the 

state health cenmissioney cn his fT a including SorTeitlc ve local action ps indices 

3 

1 

Upon receipt of reports of en investigation of a complaint and upon receipt 
07 Fines, a2 deterninratica shell be nade as to the validity of the 

ction 1s nocessary, 

The conplainont shall be advised of the disposition of his complaint, 

ance of the Indian: 
fies? i n bringing about a 

Pecords of coaplaints, investipations rade ond disposi cn of complaints shu 
all be evailable for review by an officinl representative of the Departr 

of ee Education and VWelfaré, 

foderrl zrency will be informed of conpluints received, and 

aints, by the State Beard of jealth, 

Compliance procedures and compliance a Par se will be yoevieued at losst 
snmnlly, More frequent reviews will be nade as the situation indicotes. The yesrly 
ropor: of the State soard of Health will dndide Inforwation reletlive té activities 

MN unde extaken, including the handling of complaints, in carrying out Title VI, 

Keview of policies and practices of locel agencies will bo eccopplished in 
of contact with such agencies in execoeting State Board of Henith proprams, 
with 3it)e Vv] will be doterpined pt ‘the tire of renewal of contracts with 
ies, vendors ox contyactors, 

the couyrsc 

Compliance 

local ageic 

In instances whore local or other ascneies which are recipients of federal 
funds aduinistered throuph the Indiana State Board of ilenlth are not conilying, or 
cannot coaply, the federal agencies will be so adviscd, 

Instances in which recipient onan or federal funds ed»inistered by the 
State Board of ilzalth do not coiaply, funds shall bo discentinued after thorough 
Investigation and efforss to bring shout rs lehe, Arezncies or institutions to whic 
funds are discontinued will be so informed by ths Otete vealth Cenmissicner ~~ 

hs 

H 

\ 
H 

i 

b 

  

 





 
 
 
 

 
 

- 
3 

h
d
 

ot 
We 

a 
oat 

a 
wv 

a
e
 

art 
= 

1
d
 

X 
» 

A
R
 

f
a
l
 

N 
“3 

v 
x 

ng’ 
» 

a
 

" 
X 

R
R
A
 

S
S
L
 

Mod 
ami 

BS 
I
I
 

R
a
l
 

St 
lle 

R
S
X
 

0
 

2
 

NR 
n
N
 

dirt 
2 

H
a
v
a
 

3k, 
pat 

Achy 
FETPS 

RRIF 
U
R
E
 
(
I
P
E
,
 

TER 
1G, 

NE 
S
E
R
A
 
E
E
R
I
E
 

A 
 
 

ad 4 

Bye 

% 

Ss   C oy 
BUREAU OF HEALTH MANPOWER 

ation 

LFARE 

hPL Ie 

= 

pe 

4 

Amite pan y 
73 

2, 

Vem pe 
Frond PS 

ane 

. ~~ ie 
RE Reo 

~~ 

va 0 {= 5 
< 

Ww 
y 

=
 

2 
§ 

x 
q
a
 

n
z
:
 

o
Y
 

AT n 
& 

T
W
 3 

ul E
d
 

v 
38 

J
Y
 

a
 

& 
XI 

pn 
| a

 

J od 

| z 

P50N nor 

> QO 
z << 

z Q b
=
 

< 0 ~
 

a uw 

xr b
=
 

of 
<< 
wl 

x IL 
Oo 
b
e
 

2 w pS 
P
-
 

id 
< a. 
V3} 

0 

- 
i 2cnard 

os 

 



  

  

  

»bruary 2, 1977 

hief, Manpower Analysis Branch 
ureau of Health Manpower 
palth Resources Administration 
000 Rockville Pike 
ethesda, MD 20014 

TTENTION: SHORTAGE AREA DESIGNATION STAFF 
NIH, BUILDING 31, 3806 

Ld 

he Northern Indiana Health Systems Age ncy is requesting that the City of Gary, 

ndiana (Census Tracts 101 thru 128) be designated as a critical Health Manpower 

hortage Area under Section 329(b) of the Public Health Services Act, The following 

ata supports this designation: 

(1) Area Definition: 
  

[4 

The target area defined above represents a community or set 

of neighborhoods delineated by social, economic, political, 

natural and man-made boundaries, 

On the east the City borders on the Leke-Porter County Line, 

The southern boundary of this target area is the Little 

Calumet River Flood Plain reinvorced by the Borman Expressway. 

This has been a traditional barrier which divided the City 
racially and economically, 

On the west the City 1s separa’ -ed from its sister cities, 

Hammond and East Chicago, by political boundaries and com- 

pletely lacks public transportation between the cities. 

Main Cffice 

. Subarea Office/Central Subarea Office/East 

Suborea Office/West 900 East Colfax Avenue Roberts Building 

8149 Kennedy Avenue, Suite B South Bend, Indiana 46G17 4646 U. S. Highway 24 West 
then ANA Za AN Enrt Wauna Indiana ARRNA      



hief, Manpower Analysis Branch 
ebruary 2, 1977 
age 2 

(2) Location of Existing Resources: 
  

! 

+r cud : LAY 
The enclosed map indicates the existing primary care resources? *..: 
within a ten mile radius. 

Ratios of Population to Primary Care M.D.'s: 
  

Exhibit I lists the primary care doctors located within the target 
area who actively practice. The number of physician equivalents 

equals 26.5 for a population to Primary Care M.D., a ratio of 5357:1 
well above the required 4000:1 ratio needed to qualify under 
Section 329(b). 

Contigious Area Considerations: 
  

Exhibit 2 lists all the cities within a ten mile radius of the 
center of Gary, their number of primary care physicians, and their 
population to primary care physician ratios, 

The City of Gary is broken into three parts: -Gary I, Gary II, 
Gary 1 is inside the target area, Gary Il is outside 

the target arsz, but accessible to the target area by public transpor- 
tation and Gary III is outside the target area and unaccesSible by 
public transportation, No bus lines cross the political borders 

(A comp 
closed). 

Other Considerations: 
  

Recently published Northern Inciana Health Systems Agency data shows 
that the entire twenty-four county region has a population to primary 
care physician ratio of 2157:1, compared to Indiana 2147:1, and the 
U.S. 1308:1. The data also incicates that the Primary Care Physician 
ratio for lake county is 2183:1. Thus, while there is a resource of 

Primary care physicians in the County, this resource is not great 
enough to meet the State or the National Average. Further, most of 

these physicians are inaccessible to the population of the target 
area who to a much larger extent than the normal population must rely 
on public transportation. 

An indication of the extent of the need for easily accessible primary 
care in the target area is that 12 census tracts containing 40 per  



hief, Manpower Analysis Branch 

ebruary 2, 1977 

age 3 

cenl of the population of the target area have been designated 

medically underserved by the Secretary of H.E.W. 

The Infant Death Rate for Gary in 1975 was 25.0 while the State 

and National rates were 14.8 and 16.1 respectively. The entire 

county had a rate of 19.4. Subtracting out Gary's contribution, 

th> county rate is 16.75. Thus, Gary has an Infant Death Rate 

that is 149% of that of the rest of the County, 169% of the State, 
anc 155% of the Hation. 

incerely, 

Vpn / Woghont 

Sine Kaplan 
xecutive Director 

nclosure 

Dr. 
ledical Bla 

 



  3 EXHIPRIT IX p 

LISTING OF PRIMARY CARE PHYSICIANS 

YN THF TARGET AREA - 1916 
  

PHYSICIAN 

AGE 
PRACTICE GROUPING (1) 

SERVICE 

WEIGHT (2) 
  

Barthelemy, D. 

Barton, R. 

Bergal, M. 

Boone, C. 

Carey, A. 

Chube, D. 

Davidson. C. 

Debois, X. 

Espy, T. 

Grant,  P. 

Hedrick, G. 

Johnson, A. 

Kopcha, G. 

Lewis, ‘Ll. 

Lewis, 

Lovell, 

viz, CG. 

iichel , GCG. 

iolengraft, C. 

Montouri, G. 

Moore, E. 

Nazon, Y. 

Nelson, W. 

 Paryatt, ZL. 

Hoss, O. 

Rosario, M. 

Williams, A. 

¥illiams, E. D,   

Pediatrics IX 

General Practice IIT 

General Practice II 

Obstetrics : di 5 

General Practice Yi 

General Practice Ix 

Obstetrics 5 i 

General Practice III 

General Practice »Iv 

General Practice Iv 

General Practice A 

Obstetrics “Iv 

Obstetrics Iv 

Pediatrics 

General Practice 

General Practice Xv 

Gynecologist “IV 

General Practice 0 bp 

Obstetrics sd XV 
fe 

General 1 i IV 

Obstetrics TIVv 

General 1 Iv 

General Iv 

General 1x3 

General I1X 

General X17 

General TTY 

0 
Bs
»)
 

Jd
 

IR 
= T

E 
S
S
 

A 
Wy
 

wt
 

J     

1.0 

LJ
 

. 
LJ

 
di

 
® 

LJ
 

¥ 
LJ

 
. 

LJ
 

LJ
 

LJ 
* 

A 
. 

. 
LJ
] 

. 
® 

4 
* 

. 
. 

LJ 

MH
 
O
R
 
O
H
O
 

M
M
E
 

M
R
R
 
R
E
E
 

. 

C
O
M
O
 

O
O
 
N
O
O
O
 
N
O
O
O
 

O
O
C
O
D
O
0
 

  

LAKE COUNTY MEDICAL SOCIETY BULLETIN, FEBRUARY, 1976; 

ILLINOIS BE TELPHONE DIRECTORY - AUGUST, 1976; 

MEDICAL CEN R OF GARY DATA. 

SOURCE: 

UNDER 40 YEARS OF AGE I 
40 ~ 50 YEARS OF MAGE IX 
50 - 60 YEARS OF AGL III 
60 YEARS OF AGE AND OLDER IV 

GROUPING: 

LUTZ HAS ONLY PARTIAL HOURS EXCESS OF ADVANCED AGE 

NAZON IS IN CHICAGO HALY TIME 

ROSARYO I5 IN THE E.R. HALF TIME  



® 

EXHIBIT II 
  

CITIES WITHIN A TEN MILE RADIUS 

OF THE CENTER OF GARY 
  

PRIMARY CARE 

M.D.'s {1976) POPULATION (1970) RATIO? 
  

GARY T 26% 139,276 

36,139 

GARY IX 

GARY 1171 

E. CHICAGO* 46,981 

®. GARY 9,858 

GRIFFITH 18,168 

HAMMOND * 107,738 

24,956 

’21, 488 

MERRILLVILLE 15,918 

WHITING GH po Ty 

MUNSTER 16,514 

  

City Health Departments 

This data does not take into account population shifts which 
would tend to increase the ratio for Merrillville, Munster, 
and Griffith, decrease it for llammond and East Chicago and 
leave the target area essentiaitly unchanged. [||8691f36c-4337-4c85-bfa5-eb570379f93d||]