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

$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, or 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 $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

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.

as

to

197-135 D-2

PROGRAM ACCESSIBILITY

ties, the recipient may, as an alter

native, refer the qualified handicapped $ 18.421 Discrimination prohibited.

person to other providers whose servNo qualified handicapped person ices are accessible. Where referrals are shall, because a recipient's facilities necessary, transportation costs shall are inaccessible to or unusable by not exceed costs to and from recipihandicapped persons, be denied the ents' programs. benefits of, be excluded from participa (d) Time period. A recipient shall comtion in, or otherwise be subjected to

ply with paragraph (a) of this section discrimination under any program or

within 60 days of the effective date of activity to which this part applies.

this part except that when structural $18.422 Existing facilities.

changes in facilities are necessary,

these changes shall be made as soon as (a) Program accessibility. A recipient

practicable, but not later than three shall operate each program or activity

years after the effective date of this to which this part applies so that the

part. program or activity, when viewed in its

(e) Transition plan. If structural entirety, is readily accessible to handi

changes to facilities are necessary to capped persons. This paragraph does

meet the requirements of paragraph (a) not require a recipient to make each of its existing facilities or every part of a

of this section, a recipient shall defacility accessible to and usable by

velop a transition plan within six handicapped persons.

months of the effective date of this (b) Methods. A recipient may comply

part setting forth the steps necessary with the requirement of paragraph (a)

to complete such change. The plan of this section through such measures shall be developed with the assistance as redesign of equipment, reassignment of interested persons, including handiof classes or other services to acces- capped persons or organizations repsible buildings, assignment of aids to resenting handicapped persons. A copy beneficiaries, home visits, delivery of of the transition plan shall be available health, or other social services at al- for public inspection. The plan shall, at ternate accessible sites, alteration of a minimum: existing facilities and construction of (1) Identify physical obstacles in the new facilities in conformance with recipient's facilities that limit the ac§ 18.423 or any other methods that make cessibility of its program or activity its program or activity accessible to

handicapped persons; handicapped persons. A recipient is not

(2) Describe in detail the methods required to make structural changes in

that will be used to make the facilities existing facilities where other methods

accessible; are effective in making its programs or activities readily accessible to handi

(3) Specify the schedule for taking capped persons. In choosing among

the steps necessary to achieve full proavailable methods for complying with

gram accessibility and, if the time peparagraph (a) of this section, a recipi

riod of the transition plan is longer ent shall give priority to methods that

than one year, identify steps that will offer programs and activities to handi- be taken during each year of the trancapped persons in the most integrated sition period; and setting appropriate.

(4) Indicate the person responsible for (c) Small health, welfare or other social implementation of the plan. service providers, and recipients that op- (1) Notice. The recipient shall impleerate other than educational programs or ment procedures to ensure that interactivities. If a recipient with fewer than ested persons, including persons with fifteen employees finds after consulta impaired vision or hearing, can obtain tion with a handicapped person seeking information concerning the existence its services that there is no method of and location of services, activities, and complying with paragraph (a) of this section other than making a significant alteration in its existing facili

facilities that are accessible to and usable by handicapped persons. (The information collection requirements contained in paragraph (e) have been approved by the Office of Management and Budget under control number 2900-0414) [45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15, 1984)

complished without removing or altering a load-bearing structural member. (45 FR 63268, Sept. 24, 1980, as amended at 55 FR 52138, 52141, Dec. 19, 1990)

ELEMENTARY, SECONDARY, AND ADULT

EDUCATION

$ 18.431 Application.

Sections 18.431 through 18.439 apply to elementary, secondary, and adult education programs and activities that receive or benefit from Federal financial assistance from the Department of Veterans Affairs and to recipients that operate or receive or benefit from Federal financial assistance for the operation of such programs or activities. $18.432 Location and notification.

A recipient that operates a public elementary or secondary educational program shall annually:

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

(b) Take appropriate steps to notify handicapped persons their parents or guardians of the recipients's duty under $8 18.431 through 18.439.

$18.423 New construction.

(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a recipient shall be designed and constructed so 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 facility shall, to the maximum extent feasible, be altered so that the altered portion of the facility is readily accessible to and usable by handicapped persons.

(c) Conformance with Uniform Federal Accessibility Standards. (1) Effective as of January 18, 1991, design, construction, or alteration of buildings in conformance with sections 3-8 of the Uniform Federal Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101–19.6) shall be deemed to comply with the requirements of this section with respect to those buildings. Departures from particular technical and scoping requirements of UFAS by the use of other methods are permitted where substantially equivalent or greater access to and usability of the building is provided.

(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall be interpreted to exempt from the requirements of UFAS only mechanical rooms

other spaces that, because of their intended use, will not require accessibility to the public or beneficiaries or result in the employment or residence therein of persons with physical handicaps.

(3) This section does not require recipients to make building alterations that have little likelihood of being ac

$18.433 Free appropriate public edu

cation. (a) General. A recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap.

(b) Appropriate education. (1) The provision of an appropriate education is the provision of regular or special education and related aids and services

and

(i) Are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met; and

(ii) Are based upon adherence to procedures that satisfy the requirements of $18.434, 18.435, and 18.436.

(2) Implementation of an individualized education program developed in 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

or

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