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Subpart E-Postsecondary often and in as timely a manner as are
Education

other admissions tests; and (iii) admis

sions tests are administered in facili$ 104.41 Application of this subpart. ties that, on the whole, are accessible

to handicapped persons; and Subpart E applies to postsecondary education programs or activities, in

(4) Except as provided in paragraph cluding postsecondary vocational edu

(c) of this section, may not make cation programs or activities, that re

preadmission inquiry as to whether an ceive Federal financial assistance and

applicant for admission is a handito recipients that operate, or that re

capped person but, after admission, ceive Federal financial assistance for

may make inquiries on a confidential the operation of, such programs or ac

basis as to handicaps that may require

accommodation. tivities.

(c) Preadmission inquiry erception. (45 FR 30936, May 9, 1980, as amended at 65 When a recipient is taking remedial acFR 68055, Nov. 13, 2000)

tion to correct the effects of past dis

crimination pursuant to $104.6(a) or $ 104.42 Admissions and recruitment.

when a recipient is taking voluntary (a) General. Qualified handicapped action to overcome the effects of condipersons may not, on the basis of handi tions that resulted in limited particicap, be denied admission or be sub pation in its federally assisted program jected to discrimination in admission or activity pursuant to $104.6(b), the or recruitment by a recipient to which recipient may invite applicants for adthis subpart applies.

mission to indicate whether and to (b) Admissions. In administering its what extent they are handicapped, Proadmission policies, a recipient to which vided, That: this subpart applies:

(1) The recipient states clearly on (1) May not apply limitations upon any written questionnaire used for this the number or proportion of handi purpose or makes clear orally if no capped persons who may be admitted; written questionnaire is used that the

(2) May not make use of any test or information requested is intended for criterion for admission that has a dis use solely in connection with its remeproportionate, adverse effect on handi dial action obligations or its voluntary capped persons or any class of handi action efforts; and capped persons unless (i) the test or (2) The recipient states clearly that criterion, as used by the recipient, has the information is being requested on a been validated as a predictor of success voluntary basis, that it will be kept in the education program or activity in confidential, that refusal to provide it question and (ii) alternate tests or cri will not subject the applicant to any teria that have a less disproportionate, adverse treatment, and that it will be adverse effect are not shown by the As used only in accordance with this part. sistant Secretary to be available.

(d) Validity studies. For the purpose of (3) Shall assure itself that (i) admis paragraph (b)(2) of this section, a resions tests are selected and adminis cipient may base prediction equations tered so as best to ensure that, when a on first year grades, but shall conduct test is administered to an applicant periodic validity studies against the who has a handicap that impairs sen criterion of overall success in the edusory, manual, or speaking skills, the cation program or activity in question test results accurately reflect the ap in order to monitor the general validplicant's aptitude or achievement level ity of the test scores. or whatever other factor the test purports to measure, rather than reflect $ 104.43 Treatment of students; gening the applicant's impaired sensory,

eral. manual, or speaking skills (except (a) No qualified handicapped student where those skills are the factors that shall, on the basis of handicap, be exthe test purports to measure); (ii) ad cluded from participation in, be denied missions tests that are designed for the benefits of, or otherwise be subpersons with impaired sensory, man jected to discrimination under any acaual, or speaking skills are offered as demic, research, occupational training,

ousing, health insurance, counseling, campus buildings, that have the effect nancial aid, physical education, ath- of limiting the participation of handietics, recreation, transportation, capped students in the recipient's eduther extracurricular, or other postsec- cation program or activity. ndary education aid, benefits, or serv- (c) Course examinations. In its course Pes to which this subpart applies. examinations or other procedures for

(b) A recipient to which this subpart evaluating students' academic achievepplies that considers participation by ment, a recipient to which this subpart tudents in education programs or ac- applies shall provide such methods for ivities not operated wholly by the re- evaluating the achievement of students ipient as part of, or equivalent to, and

who have a handicap that impairs senducation program or activity operated

sory, manual, or speaking skills as will y the recipient shall assure itself that

best ensure that the results of the evalhe other education program or activ

uation represents the student's ty, as a whole, provides an equal op

achievement in the course, rather than vortunity for the participation of

reflecting the student's impaired senqualified handicapped persons.

sory, manual, or speaking skills (ex(C) A recipient to which this subpart

cept where such skills are the factors pplies may not, on the basis of handi

that the test purports to measure). ap, exclude any qualified handicapped tudent from any course, course of

(d) Auxiliary aids. (1) A recipient to

which this subpart applies shall take tudy, or other part of its education

such steps as are necessary to ensure program or activity. (d) A recipient to which this subpart

that no handicapped student is denied

the benefits of, excluded from particiupplies shall operate its program or activity in the most integrated setting

pation in, or otherwise subjected to

discrimination because of the absence appropriate.

of educational auxiliary aids for stu45 FR 30936, May 9, 1980, as amended at 65 dents with impaired sensory, manual, FR 68055, Nov. 13, 2000)

or speaking skills. $104.44 Academic adjustments.

(2) Auxiliary aids may include taped

texts, interpreters or other effective (a) Academic requirements. A recipient

methods of making orally delivered to which this subpart applies shall

materials available to students with make such modifications to its aca- hearing impairments, readers in librardemic requirements as are necessary to ies for students with visual impairensure that such requirements do not

ments, classroom equipment adapted discriminate or have the effect of dis

for use by students with manual imcriminating, on the basis of handicap,

pairments, and other similar services against a qualified handicapped appli- and actions. Recipients need not procant or student. Academic require- vide attendants, individually prements that the recipient can dem- scribed devices, readers for personal onstrate are essential to the instruc

use or study, or other devices or servtion being pursued by such student or

ices of a personal nature. to any directly related licensing requirement will not be regarded as dis- [45 FR 30936, May 9, 1980, as amended at 65 criminatory within the meaning of this

FR 68055, Nov. 13, 2000) section. Modifications may include

$104.45 Housing. changes in the length of time permitted for the completion of degree re- (a) Housing provided by the recipient. A quirements, substitution of specific recipient that provides housing to its courses required for the completion of nonhandicapped students shall provide degree requirements, and adaptation of comparable, convenient, and accessible the manner in which specific courses housing to handicapped students at the are conducted.

same cost as to others. At the end of (b) Other rules. A recipient to which the transition period provided for in this subpart applies may not impose subpart C, such housing shall be availupon handicapped students other rules, able in sufficient quantity and variety such as the prohibition of tape record- so that the scope of handicapped stuers in classrooms or of dog guides in dents' choice of living accommodations

its students may not do so in a manner that violates subpart B.

is, as a whole, comparable to that of nonhandicapped students.

(b) Other housing. A recipient that assists any agency, organization, or person 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 available in a manner that does not result in discrimination on the basis of handicap.

$ 104.46 Financial and employment as

sistance to students. (a) Provision of financial assistance. (1) In providing financial assistance to qualified handicapped persons, a recipient to which this subpart applies may not,

(i) On the basis of handicap, provide less assistance than is provided to nonhandicapped persons, limit eligibility for assistance, or otherwise discriminate or

(ii) Assist any entity or person that provides 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 assist in the administration of scholarships, fellowships, or other forms of financial assistance established under wills, trusts, bequests, or similar legal instruments 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, fellowships, and other forms of financial assistance is not discriminatory on the basis of handicap.

(b) Assistance in making available outside employment. A recipient that assists any agency, organization, or person in providing employment opportunities to any of its students shall assure itself that such employment opportunities, as a whole, are made available in a manner that would not violate subpart B if they were provided by the recipient.

(c) Employment of students by recipients. A recipient that employs any of

$ 104.47 Nonacademic services.

(a) Physical education and athletics. (1) In providing physical education courses and athletics and similar aid, benefits, or services to any of its students, a recipient to which this subpart applies may not discriminate on the basis of handicap. A recipient that offers physical education courses or that operates 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 handicapped students physical education and athletic activities that are separate or different only if separation or differentiation is consistent with the requirements of $ 104.43(d) 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.

(b) Counseling and placement services. A recipient to which this subpart applies that provides personal, academic, or vocational counseling, 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 students with similar interests and abilities. This requirement does not preclude a recipient from providing factual information about licensing and certification requirements that may present obstacles to handicapped persons in their pursuit of particular careers.

(c) Social organizations. A recipient that provides significant assistance to fraternities, sororities, or similar organizations shall assure itself that the membership practices of such organizations do not permit discrimination otherwise prohibited by this subpart. (45 FR 30936, May 9, 1980, as amended at 65 FR 68055, Nov. 13, 2000)

Subpart F-Health, Welfare, and

Social Services

104.51 Application of this subpart.

Subpart F applies to health, welfare, und other social service programs or ctivities that receive Federal finanial assistance and to recipients that perate, or that receive Federal finanial assistance for the operation of, uch programs or activities. 45 FR 30936, May 9, 1980, as amended at 65 'R 68055, Nov. 13, 2000)

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

(2) The Assistant Secretary may require recipients with fewer than fifteen employees to provide auxiliary aids where the provision of aids would not significantly impair the ability of the recipient to provide 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.

$ 104.53 Drug and alcohol addicts.

A recipient to which this subpart applies 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 suffering from a medical condition, because of the person's drug or alcohol abuse or alcoholism.

104.52 Health, welfare, and other so

cial services. (a) General. In providing health, welare, or other social services or beneits, a recipient may not, on the basis f handicap:

(1) Deny a qualified handicapped peron these benefits or services;

(2) Afford a qualified handicapped lerson an opportunity to receive beneits or services that is not equal to that offered nonhandicapped persons;

(3) Provide a qualified handicapped verson with benefits or services that re not as effective (as defined in 104.4(b)) as the benefits or services irovided to others;

(4) Provide benefits or services in a nanner that limits or has the effect of imiting the participation of qualified andicapped persons; or

(5) Provide different or separate benfits or services to handicapped persons xcept where necessary to provide ualified handicapped persons with enefits and services that are as effecive as those provided to others. (b) Notice. A recipient that provides otice concerning benefits or services r written material concerning waivers f rights or consent to treatment shall ake such steps as are necessary to enure that qualified handicapped perons, including those with impaired ensory or speaking skills, are not deied effective notice because of their andicap.

(C) Emergency treatment for the hearing npaired. A recipient hospital that proides health services or benefits shall stablish a procedure for effective comeunication with persons with impaired earing for the purpose of providing mergency health care.

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APPENDIX A TO PART 104-ANALYSIS OF

FINAL REGULATION SUBPART A-GENERAL PROVISIONS Definitions-1. Recipient. Section 104.23 contains definitions used throughout the regulation.

One comment requested that the regulation specify that nonpublic elementary and secondary schools that are not otherwise recipients do not become recipients by virtue of the fact their students participate in certain federally funded programs. The Secretary believes it unnecessary to amend the regulation in this regard, because almost identical language in the Department'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 subject to the substantive requirements of this regulation through the application of $104.4(b)(iv), which prohibits recipients from assisting agencies that discriminate on the basis of handicap in providing services to beneficiaries of the recipients' programs.

2. Federal financial assistance. In $104.3(h), defining federal financial assistance, a clarifying change has been made: procurement contracts are specifically excluded. They are covered, however, by the Department of Labor's regulation under section 503. The Department has never considered such contracts to be contracts of assistance; the 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 legislative 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 federal 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 section 504 to apply to such contracts.

3. Handicapped person. Section 104.3(3), which defines the class of persons protected under the regulation, has not been substantially changed. The definition of handicapped 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 Rehabilitation Act Amendments of 1974, Pub. L. 93-516.

The first of the three parts of the statutory and regulatory definition includes any person who has a physical or mental impairment that substantially limits one or more major life activities. Paragraph (jX(2Xi) further defines physical or mental impairments. 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 comprehensiveness of any such list. The term includes, however, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, 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 substantial limitation of one or more major life activities. Several comments observed the lack of any definition in the proposed regulation of the phrase "substantially limits." The Department does not believe that a definition of this term is possible at this time.

A related issue raised by several comments is whether the definition of handicapped person is unreasonably broad. Comments suggested narrowing the definition in various ways. The most common recommendation was that only "traditional" handicaps be covered. The Department continues to believe, however, that it has no flexibility within the statutory definition to limit the term to persons who have those severe, permanent, or progressive conditions that are most commonly regarded as handicaps. The Department intends, however, to give particular attention in its enforcement of section 504 to eliminating discrimination against persons with the severe handicaps that were the focus 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 regulation. The first of the three parts of the definition specifies that only physical and mental handicaps are included. Thus, environmental, cultural, and economic disadvantage are not in themselves covered; nor are prison records, age, or homosexuality. Of course, if a person who has any of these characteristics also has a physical or mental handicap, the person is included within the definition of handicapped person.

In paragraph (1)(2)(i), 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

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