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

(2) With respect to public elementary, secondary, or adult educational services, a handicapped person:

(i) Of an age during which nonhandicapped persons are provided such seryices;

(ii) Of any age during which it is mandatory under State laws to provide such services to handicapped persons; or

(iii) To whom a State is required to provide a free appropriate public education under section 612 of the Education of the Handicapped Act; and

(3) With respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the recipient's education program or activity; and

(4) With respect to other services, a handicapped person who meets the essential 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 paragraph (j) of this section.

service 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 persons or to any class of handicapped persons 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 by providing significant assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipient's 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 handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.

(2) Aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must give 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 appropriate to the person's needs.

(3) Despite the existence of separate or different programs or activities provided in accordance with this part, a recipient may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different.

(4) A recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration that:

(i) Have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap,

(ii) Have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the

$18.404 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 assistance.

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

(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service that is equal to that afforded others;

(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or

recipient's program with respect to the case of a subsequent transfer, the handicapped persons, or

transferee, for the period during which (iii) Perpetuate the discrimination of the real property or structures are used another recipient if both recipients are for the purpose for which Federal fisubject to common administrative con- nancial assistance is extended or for trol or are agencies of the same State. another purpose involving the provi

(5) In determining the site or loca- sions of similar services or benefits. tion of a facility, an applicant for as (2) Where Federal financial assistsistance or a recipient may not make ance is extended to provide personal selections that:

property, the assurance will obligate (i) Have the effect of excluding handi- the recipient for the period during capped persons from, deny them the which it retains ownership or possesbenefits of, or otherwise subject them sion of the property. to discrimination under any program (3) In all other cases the assurance or activity that receives or benefits will obligate the recipient for the pefrom Federal financial assistance, or riod during which Federal financial as

(ii) Have the purpose or effect of de- sistance is extended. feating or substantially impairing the (c) Extent of application to institution accomplishment of the objective of the or facility. An assurance shall apply to program or activity with respect to the entire institution or facility unless handicapped persons.

the applicant establishes, to the satis(6) As used in this section, the aid, faction of the Secretary, that the instibenefit, or service provided under a tution's practices in designated parts program or activity receiving or bene or programs of the institution will in fiting from Federal financial assistance no way affect its practices in the proincludes any aid, benefit, or service gram of the institution for which Fedprovided in or through a facility that eral financial assistance is sought, or has been constructed, expanded, al the beneficiaries of or participants in tered, leased or rented, or otherwise ac such a program. If the assistance is quired, in whole of in part, with Fed being received or requested for the coneral financial assistance.

struction of a facility or part of a facil(c) Programs limited by Federal law. ity, the assurance shall apply to the The exclusion of nonhandicapped per- entire facility and to other facilities sons or the exclusion of a specific class operated in connection with the facilof handicapped persons from a program ity. limited by Federal statue or Executive (d) Covenants. (1) Where Federal fiorder to a different class of handi nancial assistance is provided in the capped persons is not prohibited by form of real property or interest in the this part.

property from the Agency, the instru(d) Special communication. Recipients ment effecting or recording this transshall take appropriate action to ensure fer shall contain a covenant running that communications with their appli with the land to assure nondiscriminacants, employees, and beneficiaries are tion for the period during which the available to persons with impaired vi real property is used for a purpose for sion and hearing.

which the Federal financial assistance

is extended or for another purpose in8 18.405 Assurances required.

volving the provisions of similar sery(a) Assurances. An applicant for Fed ices or benefits. eral financial assistance for a program (2) Where no transfer of property is or activity to which this part applies involved but property is purchased or shall submit an assurance on a form improved with Federal financial assistspecified by the Secretary, that the ance, the recipient shall agree to inprogram will be operated in compliance clude the covenant described in parawith this part.

graph (b)(2) of this section in the in(b) Duration of obligation. (1) When strument effecting or recording any Federal financial assistance is ex subsequent transfer of property. tended in the form of real property or (3) Where Federal financial assiststructures on the property, the assur ance is provided in the form of real ance will obligate the recipient or, in property or interest in the property

from the Agency, the covenant shall also include a condition coupled with a right to be reserved by the Agency to revert title to the property if there is a breach of the covenant. If a transferree of real property proposes to mortgage or otherwise encumber the real prop erty as security for financing construction of new, or improvement of existing, facilities on the property for the purpose for which the property was transferred, the Secretary may, upon request of the transferee and if necessary to accomplish such financing and upon such conditions as considered appropriate, agree to forbear the exercise of the right to revert title for as long as the lien of the mortgage or other encumbrance remains effective.

(e) Other methods of enforcement. (1) Recipients are required to keep such records as the responsible VA official deems necessary for complete and accurate compliance reports. VA can specify intervals for reporting and prescribe the form and content of information required to ascertain whether the recipient has complied or is complying with the law.

(2) Periodic compliance reviews of training establishments will be conducted by VA compliance officers. During these reviews recipients are required to permit access by VA compliance officers during normal business hours to such of their books, records, accounts, facilities and other sources of information including interviews with personnel and trainees as may be pertinent to ascertain compliance with the law.

(3) From study of documentation, results of interviews, and observation of activities during tours of facilities, compliance officers will evaluate recipients' compliance status. [45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986) $ 18.406 Remedial action, voluntary ac

tion and self-evaluation. (a) Remedial action. (1) If the Secretary finds that a recipient has discriminated against qualified persons on the basis of handicap in violation of section 504 or this part, the recipient shall take such remedial action as the Secretary considers necessary to overcome the effects of the discrimination.

(2) Where a recipient is found to have discriminated against qualified persons on the basis of handicap in violation of section 504 or this part and where another recipient exercises control over the recipient that has discriminated, the Secretary, where appropriate, may require either or both recipients to take remedial action.

(3) The Secretary may, where necessary to overcome the effects of discrimination in violation of section 504 or this part, require a recipient to take remedial action with respect to:

(i) Handicapped persons who are no longer participants in the recipient's program but who were participants in the program when such discrimination occurred;

(ii) Handicapped persons who would have been participants in the program had the discrimination not occurred; or

(iii) Handicapped persons presently in the program, but not receiving full benefits or equal and integrated treatment within the program.

(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 handicapped persons.

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

(i) Evaluate with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons, its current policies and practices and the effects of the policies and practices that do not or may not meet the requirements of this part;

(ii) Modify, after consultation with interested persons, including handicapped persons or organizations representing handicapped persons, any policies and practices that do not meet the requirements of this part; and

(iii) Take, after consultation with interested persons, including handicapped persons or organizations representing handicapped persons, appropriate remedial steps to eliminate the effects of any discrimination that resulted from adherence to these policies and practices.

Or

(2) A recipient that employs fifteen does not discriminate on the basis of or more persons shall, for at least three handicap in violation of section 504 and years following completion of the eval- this part. The notification shall state, uation required under paragraph (c)(1) where appropriate, that the recipient of this section, maintain on file, make does not discriminate in admission available for public inspection, and access to, or treatment, or employment provide to the Secretary upon request: in, its programs and activities. The no

(i) A list of the interested persons tification shall also include an identiconsulted;

fication of the responsible employee (ii) A description of areas examined

designated under $18.407. A recipient and any problems identified; and

shall make the initial notification re(iii) A description of any modifica

quired by this paragraph within 90 days tions made and of any remedial steps

of the effective date of this part. Methtaken.

ods of initial and continuing notifica(3) Recipients who become such more

tion may include the posting of nothan one year after the effective date

tices, publication in newspapers and of these regulations shall complete

magazines, placement of notices in rethese self-evaluation requirements

cipient's publication, and distribution within one year after becoming recipi

of memorandums or other written coments of Federal financial assistance.

munications. (The information collection requirements (b) If a recipient publishes or uses recontained in paragraph (c) have been ap

cruitment materials or publications proved by the Office of Management and

containing general information that it Budget under control number 2900-0415)

makes available to participants, bene[45 FR 63268, Sept. 24, 1980, as amended at 49

ficiaries, applicants, or employees, it FR 32574, Aug. 15, 1984)

shall include in those materials or pub$18.407 Designation of responsible em

lications a statement of the policy deployee and adoption of grievance

scribed in paragraph (a) of this section. procedures.

A recipient may meet the requirement (a) Designation of responsible employee.

of this section either by including apA recipient that employs fifteen or

propriate inserts in existing materials more persons shall designate at least

and publications or by revising and re

printing the materials and publicaone person to coordinate its efforts to comply with this part.

tions. (b) Adoption of grievance procedures. A

$ 18.409 Administrative requirements recipient that employs fifteen or more

for certain recipients. persons shall adopt grievance procedures that incorporate appropriate due

The Secretary may require any reprocess standards and that provide for cipient with fewer than fifteen employthe prompt and equitable resolution of ees, or any class of such recipients, to complaints alleging any action prohib

comply with $$18.407 and 18.408 in whole ited by this part. Such procedures need or in part, when the Secretary finds a not be established with respect to com- violation of this part or finds that such plaints from applicants for employ- compliance will not significantly imment or from applicants for admission pair the ability of the recipient or class to postsecondary educational institu- of recipients to provide benefits or tions.

services.

$18.408 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 impaired vision or hearing, and unions or professional organizations holding collective bargaining or professional agreements with the recipient that it

$18.410 Effect of State or local law or

other requirements and effect of

employment opportunities. (a) The obligation to comply with this part is not obviated or alleviated by the existence of any State law or other requirement that, on the basis of handicap, imposes prohibitions or limits upon the eligibility of qualified handicapped persons to receive services

or to practice any occupation or profession.

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

EMPLOYMENT PRACTICES

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

(7) Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training;

(8) Employer sponsored activities, including social or recreational programs; and

(9) Any other term, condition, or privilege of employment.

(c) Collective bargaining agreements. A recipient's obligation to comply with this subpart is not affected by any inconsistent term of any collective bargaining agreement to which it is a party.

$18.411 Discrimination prohibited.

(a) General. (1) No qualified handicapped 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 shall make all decisions concerning employment under any program or activity to which this part applies in a manner which ensures that discrimination on the basis of handicap does not occur and may not limit, segregate, or classify applicants or employees in any way that adversely affects their opportunities or status because of handicap.

(3) A recipient may not participate in a contractual or other relationship that has the effect of subjecting qualified handicapped applicants or employees to discrimination in employment. The relationships referred to in this section include relationships with employment and referral agencies, with organizations providing or administering fringe benefits to employees of the recipient, and with organizations providing training and apprenticeship programs.

(b) Specific activities. Nondiscrimination in employment applies to:

(1) Recruitment, advertising, and the processing of applications for employment;

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

(3) Rates of pay or other forms of compensation and changes in compensation;

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

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

$18.412 Reasonable accommodation.

(a) A recipient shall make reasonable accommodation to the known physical or mental limitations of a handicapped applicant or employee if such accommodation would enable that person to perform the essential functions of the job 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 usable by handicapped persons; and

(2) Job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters and other similar actions.

(c) In determining under paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of a recipient's program, factors to be considered include:

(1) The overall size of the recipient's program with respect to number of employees, number and type of facilities, and size of budget;

(2) The type of the recipient's operation, including the composition and structure of the recipient's work force; and

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

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