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(d) A recipient may not deny any employment opportunity to a qualified handicapped employee or applicant if the basis for denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant. (45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986]

sisted program or activity pursuant to $18.406(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 written questionnaire is used that the information 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 confidential as provided in paragraph (d) of this section, that refusal to provide it will not subject the applicant or employee to any adverse treatment, and that it will be used only in accordance with this part.

(c) 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 requirements of this part.

(d) Information obtained in accordance with this section as to the medical condition or history of the applicant shall be collected and maintained on separate forms that shall be accorded confidentiality medical records, except that:

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

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

(3) Government officials investigating compliance with the Act shall be provided relevant information upon request.

§ 18.413 Employment criteria.

(a) A recipient may not use 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 criterion, as used by the recipient, is shown to be job-related for the position in question; and

(2) Alternative job-related tests or criteria that do not screen out or tend to screen out as many handicapped persons are not shown by the Secretary to be available.

(b) A recipient shall select and administer tests concerning employment to best ensure that when administered to an applicant or employee who has a handicap that impairs sensory, manual, or speaking skills, the test results accurately reflect the applicant's or employee's job skills, aptitude, whatever other factor the test purports to measure, rather than reflect the applicant's or employee's impaired sensory, manual, or speaking skills (except when those skills are the factors that the test purports to measure). $18.414 Preemployment inquiries.

(a) Except as provided in paragraphs (b) and (c) of this section, a recipient may not conduct a preemployment medical examination or may not make preemployment inquiry of an applicant as to whether the applicant is a handicapped person or as to the nature or severity of a handicap. A recipient may, however, make preemployment inquiry into the applicant's ability to perform job-related functions.

(b) When a recipient is taking remedial action to correct the effects of past discrimination pursuant to $18.406(a), when a recipient is taking voluntary action to overcome the effects of conditions that resulted in limited participation in its federally as



197-135 D-2


$18.421 Discrimination prohibited.

No qualified handicapped person shall, because a recipient's facilities are inaccessible to or unusable by handicapped 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.

$ 18.422 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 handicapped persons. This paragraph does not require a recipient to make each of its existing facilities or every part of a facility accessible to and usable by handicapped persons.

(b) Methods. A recipient may comply with the requirement of paragraph (a) of this section through such measures as redesign of equipment, reassignment of classes or other services to accessible buildings, assignment of aids to beneficiaries, home visits, delivery of health, or other social services at alternate accessible sites, alteration of existing facilities and construction of new facilities in conformance with $18.423 or any other methods that make its program or activity accessible to handicapped persons. A recipient is not required to make structural changes in existing facilities where other methods are effective in making its programs or activities readily accessible to handicapped persons. In choosing among available methods for complying with paragraph (a) of this section, a recipient shall give priority to methods that offer programs and activities to handicapped persons in the most integrated setting appropriate.

(c) Small health, welfare or other social service providers, and recipients that operate other than educational programs or activities. If a recipient with fewer than fifteen employees 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 facili

ties, the recipient may, as an alternative, refer the qualified handicapped person to other providers whose services are accessible. Where referrals are necessary, transportation costs shall not exceed costs to and from recipients' programs.

(d) T'ime period. A recipient shall comply with paragraph (a) of this section within 60 days of the effective date of this part except that when structural changes in facilities are necessary, these changes shall be made as soon as practicable, but not later than three years after the effective date of this part.

(e) Transition plan. If structural changes to facilities are necessary to meet the requirements of paragraph (a) of this section, a recipient shall develop a transition plan within six months of the effective date of this part setting forth the steps necessary to complete such change. The plan shall be developed with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons. A copy of the transition plan shall be available for public inspection. The plan shall, at a minimum:

(1) Identify physical obstacles in the recipient's facilities that limit the accessibility of its program or activity to handicapped persons;

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

(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 year, identify steps that will be taken during each year of the transition period; and

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

(f) Notice. The recipient shall implement procedures to ensure that interested persons, including persons with impaired vision or hearing, can obtain information concerning the existence and location of services, activities, and


facilities that are accessible to and us- complished without removing or alterable by handicapped persons.

ing a load-bearing structural member. (The information collection requirements [45 FR 63268, Sept. 24, 1980, as amended at 55 contained in paragraph (e) have been ap- FR 52138, 52141, Dec. 19, 1990) proved by the Office of Management and Budget under control number 2900-0414)

ELEMENTARY, SECONDARY, AND ADULT (45 FR 63268, Sept. 24, 1980, as amended at 49

EDUCATION FR 32574, Aug. 15, 1984)

$ 18.431 Application. $18.423 New construction.

Sections 18.431 through 18.439 apply (a) Design and construction. Each fa

to elementary, secondary, and adult cility or part of a facility constructed education programs and activities that by, on behalf of, or for the use of a re- receive or benefit from Federal financipient shall be designed and con- cial assistance from the Department of structed so that the facility or part of Veterans Affairs and to recipients that the facility is readily accessible to and

operate or receive or benefit from Fedusable by handicapped persons, if the eral financial assistance for the operconstruction was commenced after the

ation of such programs or activities. effective date of this part.

(b) Alteration. Each facility or part of $ 18.432 Location and notification. a facility which is altered by, on behalf

A recipient that operates a public elof, or for the use of a recipient after

ementary secondary educational the effective date of this part in a manner that affects or could affect the

program shall annually: usability of the facility or part of the

(a) Undertake to identify and locate facility shall, to the maximum extent

every qualified handicapped person refeasible, be altered so that the altered

siding in the recipient's jurisdiction portion of the facility is readily acces

who is not receiving a public edusible to and usable by handicapped per

cation; and sons.

(b) Take appropriate steps to notify (c) Conformance with Uniform Federal

handicapped persons their parents or Accessibility Standards. (1) Effective as guardians of the recipients's duty of January 18, 1991, design, construc

under $8 18.431 through 18.439. tion, or alteration of buildings in conformance with sections 3-8 of the Uni

$18.433 Free appropriate public edu

cation. form Federal Accessibility Standards (USAF) (appendix A to 41 CFR subpart

(a) General. A recipient that operates 101–19.6) shall be deemed to comply

a public elementary or secondary eduwith the requirements of this section

cation program shall provide a free apwith respect to those buildings. Depar- propriate public education to each tures from particular technical and qualified handicapped person who is in scoping requirements of UFAS by the the recipient's jurisdiction, regardless use of other methods are permitted

of the nature or severity of the perwhere substantially equivalent or son's handicap. greater access to and usability of the (b) Appropriate education. (1) The probuilding is provided.

vision of an appropriate education is (2) For purposes of this section, sec- the provision of regular or special edution 4.1.6(1)(g) of UFAS shall be inter- cation and related aids and services preted to exempt from the require

that: ments of UFAS only mechanical rooms (i) Are designed to meet individual and other spaces that, because of their educational needs of handicapped perintended use, will not require accessi- sons as adequately as the needs of nonbility to the public or beneficiaries or handicapped persons are met; and result in the employment or residence (ii) Are based upon adherence to protherein of persons with physical handi- cedures that satisfy the requirements caps.

of $$18.434, 18.435, and 18.436. (3) This section does not require re- (2) Implementation of an individualcipients to make building alterations ized education program developed in that have little likelihood of being ac- accordance with the Education of the Handicapped Act is one means of meet- cation to a handicapped person and the ing the standard established in para- person's parents or guardian chooses to graph (b)(1)(i) of this section.

place the person in a private school, (3) A recipient may place a qualified the recipient is not required to pay for handicapped person in or refer that the person's education in the private person to a program other than the one school. Disagreements between a parthat it operates as its means of car- ent or guardian and recipient regardrying out the requirements of $8 18.431 ing whether the recipient has made through 18.439. The recipients remain such a program available or regarding responsible for ensuring that the re- the question of financial responsibility quirements of $8 18.431 through 18.439 are subject to the due process proceare met with respect to any qualified

dures of $18.436. handicapped person so placed or re- (d) Compliance. A recipient may not ferred.

exclude any qualified handicapped per(c) Free education. (1) The provision of son from a public elementary or seca free education is the provision of edu

ondary education after the effective cational and related services without

date of this part. A recipient that is cost to the handicapped person, parents

not, on the effective date of this part, or guardian, except for those fees that in full compliance with the requireare imposed on nonhandicapped per

ments of paragraphs (a) through (c) of sons or their parents or guardian. It this section shall meet those requiremay consist either of the provision of

ments at the earliest practicable time, free services or, if a recipient places a

but not later than October 1, 1981. handicapped person in or refers that

(45 FR 63268, Sept. 24, 1980, as amended at 51 person to a program not operated by FR 10385, Mar. 26, 1986; 51 FR 12702, Apr. 15, the recipient as its means of carrying 1986) out the requirements of $818.431 through 18.439, of payment for the costs

§ 18.434 Education setting. of the program. Funds available from (a) Academic setting. A recipient shall any public or private agency may be educate, or shall provide for the eduused to meet the requirements of this cation of, each qualified handicapped subpart. Nothing in this section shall person in its jurisdiction with persons be construed to relieve an insurer or who are not handicapped to the maxsimilar third party from an otherwise imum extent appropriate to the needs valid obligation to provide or pay for of the handicapped person. A recipient services provided to a handicapped per- shall place a handicapped person in the son.

regular educational environment oper(2) If a recipient places a handicapped ated by the recipient unless it is demperson in or refers that person to a pro- onstrated by the recipient that the gram not operated by the recipient as education of the person in the regular its means of carrying out the require- environment with the use of supplements of this subpart, the recipient mentary aids and services cannot be shall ensure that adequate transpor- achieved satisfactorily. In deciding tation to and from the program is pro- whether to place a person in a setting vided at no greater cost than would be other than the regular educational enincurred by the person, parents or vironment, a recipient shall consider guardian if the person were placed in the proximity of the alternate setting the program operated by the recipient. to the person's home.

(3) If placement in a public or private (b) Nonacademic settings. In providing residential program is necessary to or arranging for the provision of nonprovide free appropriate public edu- academic and extracurricular services cation to a handicapped person because and activities, a recipient shall ensure of his or her handicap, the program, in- that handicapped persons participate cluding non-medical care and room and with nonhandicapped persons in those board, shall be provided at no cost to activities and services to the maximum the person, parents or guardian.

extent appropriate to the needs of the (4) If a recipient has made available, handicapped person in question. in conformance with this section and (c) Comparable facilities. If a recipient $18.434, a free appropriate public edu- in compliance with paragraph (a) of this section operates a facility that is achievement tests, teacher recidentifiable as being for handicapped ommendations, physical condition, sopersons, the recipient shall ensure that cial or cultural background and adaptthe facility and the services and activi- ive behavior; ties provided in that facility are com- (2) Establish procedures to ensure parable to the other facilities, services, that information obtained from all and ac ities of the recipient.

sources is documented and carefully

considered; $ 18.435 Evaluation and placement. (3) Ensure that the placement deci

(a) Preplacement evaluation. A recipi- sion is made by a group of persons, inent that operates a public elementary cluding persons knowledgeable about or secondary education program shall the student, the meaning of the evaluaconduct an evaluation of any qualified tion data and the placement options; person who, because of handicap, needs and or is believed to need special education (4) Ensure that the placement decior related services before taking any

sion is made in accordance with $18.434. action concerning the initial place- (d) Reevaluation. A recipient to which ment of the person in a regular or spe

this section applies sha establish procial

program and any subsequent cedures, in accordance with paragraph change in placement.

(b) of this section, for periodic reevalu(b) Evaluation procedures. Elemen

ation of students who have been protary, secondary, and adult education vided special education and related programs and activities that receive or services. A reevaluation procedure conbenefit from Federal financial assist- sistent with the Education for the ance shall establish standards and pro- Handicapped Act is one means of meetcedures for the evaluation and place- ing this requirement. ment of persons who, because of handi

$18.436 Procedural safeguards. cap, need or are believed to need special education or related services (a) A recipient that operates a public which ensure that:

elementary secondary education (1) Tests and other evaluation mate- program shall implement a system of rials have been validated for the spe- procedural safeguards with respect to cific purpose for which they are used actions regarding the identification, and are administered by trained per- evaluation, or educational placement sonnel in conformance with the in- of persons who, because of handicap, structions provided by their producer; need or are believed to need special in

(2) Tests and other evaluation mate- struction or related services. The sysrials include those tailored to assess tem shall include: specific areas of educational need and (1) Notice; not merely those which are designed to (2) An opportunity for the parents or provide a single general intelligence guardian of the person to examine relquotient; and

evant records; (3) Tests are selected and adminis- (3) An impartial hearing with opportered to best ensure that, when a test tunity for participation by the person's is administered to a student with im- parents or guardian and representation paired sensory, manual, or speaking by counsel; and skills, the test results accurately re- (4) Review procedure. flect the student's aptitude or achieve- (b) Compliance with the procedural ment level or whatever other factor the safeguards of section 615 of the Edutest purports to measure, rather than cation of the Handicapped Act is one reflect the student's impaired sensory, means of meeting this requirement. manual, or speaking skills (except where those skills are the factors that

8 18.437 Nonacademic services. the test purports to measure.)

(a) General. (1) Elementary, sec(c) Placement procedures. In inter- ondary, and adult education programs preting evaluation data and in making that receive or benefit from Federal fiplacement decisions, a recipient shall: nancial assistance shall provide non

(1) Draw upon information from a va- academic and extracurricular services riety of sources, including aptitude and and activities in a manner which gives


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