[nfbmi-talk] they are still jawboning about role of commission now?
Elizabeth
lizmohnke at hotmail.com
Wed May 5 03:38:02 UTC 2010
Your assumption that I am not familiar with the federal Rehabilitation Act is unfounded and unnecessary. For someone who claims to respect women, you certainly have an interesting way of showing it.
Respectfully,
Elizabeth
> From: joeharcz at comcast.net
> To: nfbmi-talk at nfbnet.org
> Date: Tue, 4 May 2010 20:48:39 -0400
> Subject: Re: [nfbmi-talk] they are still jawboning about role of commission now?
>
> Please keep in mind the provisions of this when examining college policy
> Elizabeth:
> 34 C.F.R. Part 104[Notice to Readers]
>
> TITLE 34-EDUCATION
>
> SUBTITLE B - REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION
>
> CHAPTER I -- OFFICE FOR CIVIL RIGHTS, DEPARTMENT OF EDUCATION
>
> PART 104 -- NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR
> ACTIVITIES
>
> RECEIVING FEDERAL FINANCIAL ASSISTANCE
>
> Subpart A -- General Provisions
>
> Sec.
>
> 104.1 Purpose.
>
> 104.2 Application.
>
> 104.3 Definitions.
>
> 104.4 Discrimination prohibited.
>
> 104.5 Assurances required.
>
> 104.6 Remedial action, voluntary action, and self‑evaluation.
>
> 104.7 Designation of responsible employee and adoption of grievance
> procedures.
>
> 104.8 Notice.
>
> 104.9 Administrative requirements for small recipients.
>
> 104.10 Effect of state or local law or other requirements and effect of
>
> employment opportunities.
>
> Subpart B -- Employment Practices
>
> 104.11 Discrimination prohibited.
>
> 104.12 Reasonable accommodation.
>
> 104.13 Employment criteria.
>
> 104.14 Preemployment inquiries.
>
> Subpart C -- Accessibility
>
> 104.21 Discrimination prohibited.
>
> 104.22 Existing facilities.
>
> 104.23 New construction.
>
> Subpart D -- Preschool, Elementary, and Secondary
> Education
>
> 104.31 Application of this subpart.
>
> 104.32 Location and notification.
>
> 104.33 Free appropriate public education.
>
> 104.34 Educational setting.
>
> 104.35 Evaluation and placement.
>
> 104.36 Procedural safeguards.
>
> 104.37 Nonacademic services.
>
> 104.38 Preschool and adult education.
>
> 104.39 Private education.
>
> Subpart E -- Postsecondary Education
>
> 104.41 Application of this subpart.
>
> 104.42 Admissions and recruitment.
>
> 104.43 Treatment of students; general.
>
> 104.44 Academic adjustments.
>
> 104.45 Housing.
>
> 104.46 Financial and employment assistance to students.
>
> 104.47 Nonacademic services.
>
> Subpart F -- Health, Welfare, and Social Services
>
> 104.51 Application of this subpart.
>
> 104.52 Health, welfare, and other social services.
>
> 104.53 Drug and alcohol addicts.
>
> 104.54 Education of institutionalized persons.
>
> Subpart G -- Procedures
>
> 104.61 Procedures.
>
> APPENDIX A TO PART 104-ANALYSIS OF FINAL REGULATION
>
> APPENDIX B TO PART 104-GUIDELINES FOR ELIMINATING DISCRIMINATION AND DENIAL
> OF
>
> SERVICES ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN, SEX, AND HANDICAP IN
>
> VOCATIONAL EDUCATION PROGRAMS [NOTE]
>
> AUTHORITY: 20 U.S.C. 1405; 29 U.S.C. 794.
>
> SOURCE: 45 FR 30936, May 9, 1980, unless otherwise noted.
>
> Subpart A -- General Provisions
>
> § 104.1 Purpose.
>
> The purpose of this part is to effectuate section 504 of
> the
>
> Rehabilitation Act of 1973, which is designed to eliminate discrimination on
> the
>
> basis of handicap in any program or activity receiving Federal financial
>
> assistance.
>
> § 104.2 Application.
>
> This part applies to each recipient of Federal financial
>
> assistance from the Department of Education and to the program or activity
> that
>
> receives such assistance.
>
> § 104.3 Definitions.
>
> As used in this part, the term:
>
> (a) The Act means the Rehabilitation Act of 1973, Pub. L.
>
> 93‑112, as amended by the Rehabilitation Act Amendments of 1974, Pub.
> L. 93‑516,
>
> 29 U.S.C. 794.
>
> (b) Section 504 means section 504 of the Act.
>
> (c) 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 Department of Education.
>
> (e) Assistant Secretary means the Assistant Secretary for
>
> Civil Rights of the Department of Education.
>
> (f) Recipient means any state or its political
> subdivision,
>
> any instrumentality of a state or its political subdivision, any public or
>
> private agency, institution, organization, or other entity, or any person to
>
> which Federal financial assistance is extended directly or through another
>
> recipient, including any successor, assignee, 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 Department
> 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 contract of insurance or
>
> guaranty), or any other arrangement by which the Department provides or
>
> otherwise makes available 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, including:
>
> (i) Transfers or leases of such property for less than
> fair
>
> market value or for reduced consideration; and
>
> (ii) Proceeds from a subsequent transfer or lease of such
>
> property if the Federal share of its fair market value is not returned to
> the
>
> Federal Government.
>
> (i) Facility means all or any portion of buildings,
>
> structures, equipment, roads, walks, parking lots, or other real or personal
>
> property or interest in such property.
>
> (j) Handicapped person -- (1) Handicapped persons means
> any
>
> person who (i) has a physical or mental impairment which substantially
> limits
>
> one or more major life activities, (ii) has a record of such an impairment,
> or
>
> (iii) is regarded 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: neurological; musculoskeletal;
> special
>
> sense organs; respiratory, including speech organs; cardiovascular;
>
> reproductive, digestive, 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.
>
> (ii) Major life activities means functions such as caring
> for
>
> one's self, performing manual tasks, walking, seeing, hearing, speaking,
>
> breathing, learning, and working.
>
> (iii) Has a record of such an impairment means has a
> history
>
> of, or has been misclassified as having, a mental or physical impairment
> that
>
> substantially limits one or more major life activities.
>
> (iv) Is regarded as having an impairment means (A) has a
>
> physical or mental impairment that does not substantially limit major life
>
> activities but that is treated by a recipient as constituting such a
> limitation;
>
> (B) has a physical or mental impairment that substantially limits major life
>
> activities 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) Program or activity means all of the operations of--
>
> (1)(i) A department, agency, special purpose district, or
>
> other instrumentality of a State or of a local government; or
>
> (ii) The entity of such State or local government that
>
> distributes such assistance and each such department or agency (and each
> other
>
> State or local government entity) to which the assistance is extended, in
> the
>
> case of assistance to a State or local government;
>
> (2)(i) A college, university, or other postsecondary
>
> institution, or a public system of higher education; or
>
> (ii) A local educational agency (as defined in 20 U.S.C.
>
> 8801), system of vocational education, or other school system;
>
> (3)(i) An entire corporation, partnership, or other
> private
>
> organization, or an entire sole proprietorship--
>
> (A) If assistance is extended to such corporation,
>
> partnership, private organization, or sole proprietorship as a whole; or
>
> (B) Which is principally engaged in the business of
> providing
>
> education, health care, housing, social services, or parks and recreation;
> or
>
> (ii) The entire plant or other comparable, geographically
>
> separate facility to which Federal financial assistance is extended, in the
> case
>
> of any other corporation, partnership, private organization, or sole
>
> proprietorship; or
>
> (4) Any other entity which is established by two or more
> of
>
> the entities described in paragraph (k)(1), (2), or (3) of this section; any
>
> part of which is extended Federal financial assistance.
>
> (Authority: 29 U.S.C. 794(b))
>
> (l) Qualified handicapped person means:
>
> (1) With respect to employment, a handicapped person who,
> with
>
> reasonable accommodation, can perform the essential functions of the job in
>
> question;
>
> (2) With respect to public preschool elementary,
> secondary, or
>
> adult educational services, a handicappped person (i) of an age during which
>
> nonhandicapped persons are provided such services, (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 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;
>
> (4) With respect to other services, a handicapped person
> who
>
> meets the essential eligibility requirements for the receipt of such
> services.
>
> (m) Handicap means any condition or characteristic that
>
> renders a person a handicapped person as defined in paragraph (j) of this
>
> section.
>
> § 104.4 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 activitiy
> which
>
> receives Federal financial assistance.
>
> (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:
>
> (i) Deny a qualified handicapped person 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 the aid, benefit, or 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 recipients program or
>
> activity;
>
> (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) For purposes of this part, 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
> 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 appropriate to the person's needs.
>
> (3) Despite the existence of separate or different aid,
>
> benefits, or services provided in accordance with this part, a recipient may
> not
>
> deny a qualified handicapped person the opportunity to participate in such
> aid,
>
> benefits, or services that are not separate or different.
>
> (4) A recipient may not, directly or through contractual
> or
>
> other arrangements, utilize criteria or methods of administration (i) that
> have
>
> the effect of subjecting qualified handicapped persons to discrimination on
> the
>
> basis of handicap, (ii) that have the purpose or effect of defeating or
>
> substantially impairing accomplishment of the objectives of the recipient's
>
> program or activity with respect to handicapped 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 location of a facility, an
>
> applicant for assistance or a recipient may not make selections (i) that
> have
>
> the effect of excluding handicapped persons from, denying them the benefits
> of,
>
> or otherwise subjecting them to discrimination under any program or activity
>
> that receives Federal financial assistance or (ii) that have the purpose or
>
> effect of defeating or substantially impairing the accomplishment of the
>
> objectives of the program or activity with respect to handicapped persons.
>
> (6) As used in this section, the aid, benefit, or service
>
> provided under a program or activity receiving Federal financial assistance
>
> includes any aid, benefit, or service provided in or through a facility that
> has
>
> been constructed, expanded, altered, leased or rented, or otherwise
> acquired, in
>
> whole or in part, with Federal financial assistance.
>
> (c) Aid, benefits or services limited by Federal law. The
>
> exclusion of nonhandicapped persons from aid, benefits, or services limited
> by
>
> Federal statute or executive order to handicapped persons or the exclusion
> of a
>
> specific class of handicapped persons from aid, benefits, or services
> limited by
>
> Federal statute or executive order to a different class of handicapped
> persons
>
> is not prohibited by this part.
>
> § 104.5 Assurances required.
>
> (a) Assurances. An applicant for Federal financial
> assistance
>
> to which this part applies shall submit an assurance, on a form specified by
> the
>
> Assistant Secretary, that the program or activity will be operated in
> compliance
>
> with this part. An applicant may incorporate these assurances by reference
> in
>
> subsequent applications to the Department.
>
> (b) Duration of obligation. (1) In the case of Federal
>
> financial assistance extended 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 subsequent transfer, the transferee, for the
>
> period during which the real property or structures are used for the purpose
> for
>
> which Federal financial assistance is extended 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 financial assistance is
>
> provided in the form of real property or interest in the property from the
>
> Department, the instrument effecting or recording this transfer shall
> contain a
>
> covenant running with the land to assure nondiscrimination for the period
> during
>
> which the real property is used for a purpose for which the Federal
> financial
>
> assistance is extended 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 assistance, the recipient shall
>
> agree to include the covenant described in paragraph (b)(2) of this section
> in
>
> the instrument effecting 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 Department, the
> covenant
>
> shall also include 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, facilities on the property for the purposes for
> which
>
> the property was transferred, the Assistant Secretary may, upon request of
> the
>
> transferee and if necessary to accomplish such financing and upon such
>
> conditions as he or she deems appropriate, agree to forbear the exercise of
> such
>
> right to revert title for so long as the lien of such mortgage or other
>
> encumbrance remains effective.
>
> § 104.6 Remedial action, voluntary action, and self‑evaluation.
>
> (a) Remedial action. (1) If the Assistant Secretary finds
> that
>
> a recipient has discriminated against persons on the basis of handicap in
>
> violation of section 504 or this part, the recipient shall take such
> remedial
>
> action as the Assistant Secretary 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 recipient exercises control over the recipient that has
>
> discriminated, the Assistant Secretary, where appropriate, may require
> either or
>
> both recipients to take remedial action.
>
> (3) The Assistant 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 (i) with respect to handicapped persons
> who
>
> are no longer participants in the recipient's program or activity but who
> were
>
> participants in the program or activity when such discrimination occurred or
>
> (ii) with respect to handicapped persons who would have been participants in
> the
>
> program or activity 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 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 thereof 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.
>
> (2) A recipient that employs fifteen or more persons
> shall,
>
> for at least three years following completion of the evaluation required
> under
>
> paragraph (c)(1) of this section, maintain on file, make available for
> public
>
> inspection, and provide to the Assistant Secretary upon request:
>
> (i) A list of the interested persons consulted,
>
> (ii) A description of areas examined and any problems
>
> identified, and
>
> (iii) A description of any modifications made and of any
>
> remedial steps taken.
>
> § 104.7 Designation of responsible employee and adoption of grievance
>
> procedures.
>
> (a) Designation of responsible employee. A recipient that
>
> employs fifteen or more persons shall designate 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 complaints 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 postsecondary educational
>
> institutions.
>
> § 104.8 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 impaired
> vision
>
> or hearing, and unions or professional organizations holding collective
>
> bargaining or professional agreements 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 appropriate, that the recipient does not
>
> discriminate in admission or access to, or treatment or employment in, its
>
> program or activity. The notification shall also include an identification
> of
>
> the responsible employee designated pursuant to § 104.7(a). A recipient
> shall
>
> make the initial notification required by this paragraph within 90 days of
> the
>
> effective date of this part. Methods of initial and continuing notification
> may
>
> include the posting of notices, publication in newspapers and magazines,
>
> placement of notices in recipients' publication, and distribution of
> memoranda
>
> or other written communications.
>
> (b) If a recipient publishes or uses recruitment materials
> or
>
> publications containing general information that it makes available to
>
> participants, beneficiaries, applicants, or employees, it shall include in
> those
>
> materials or publications a statement of the policy described in paragraph
> (a)
>
> of this section. A recipient may meet the requirement of this paragraph
> either
>
> by including appropriate inserts in existing materials and publications or
> by
>
> revising and reprinting the materials and publications.
>
> § 104.9 Administrative requirements for small recipients.
>
> The Assistant Secretary may require any recipient with
> fewer
>
> than fifteen employees, or any class of such recipients, to comply with §§
> 104.7
>
> and 104.8, in whole or in part, when the Assistant Secretary 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.
>
> § 104.10 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 or local 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.
>
> Subpart B -- Employment Practices
>
> § 104.11 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 that receives assistance under the
> Education
>
> of the Handicapped Act shall take positive steps to employ and advance in
>
> employment qualified handicapped persons in programs or activities assisted
>
> under that Act.
>
> (3) 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.
>
> (4) A recipient may not participate in a contractual or
> other
>
> relationship that has the effect of subjecting qualified handicapped
> applicants
>
> or employees to discrimination prohibited by this subpart. The relationships
>
> referred to in this paragraph include relationships with employment and
> referral
>
> agencies, with labor unions, with organizations providing or administering
>
> fringe benefits to employees of the recipient, and with organizations
> providing
>
> training and apprenticeships.
>
> (b) Specific activities. The provisions of this subpart
> apply
>
> 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 any other form of compensation and
> changes
>
> in compensation;
>
> (4) Job assignments, job classifications, 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 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 those that
> are
>
> social or recreational; and
>
> (9) Any other term, condition, or privilege of employment.
>
> (c) 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.
>
> § 104.12 Reasonable accommodation.
>
> (a) A recipient shall make reasonable accommodation to the
>
> known physical or mental limitations of an otherwise qualified handicapped
>
> applicant or employee unless the recipient can demonstrate that the
>
> accommodation would impose an undue hardship on the operation of its program
> or
>
> activity.
>
> (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 pursuant to paragraph (a) of this
> section
>
> whether an accommodation would impose an undue hardship on the operation of
> a
>
> recipient's program or activity, factors to be considered include:
>
> (1) The overall size of the recipient's program or
> activity
>
> 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 workforce; and
>
> (3) The nature and cost of the accommodation needed.
>
> (d) A recipient may not deny any employment opportunity to
> a
>
> qualified handicapped employee or applicant if the basis for the denial is
> the
>
> need to make reasonable accommodation to the physical or mental limitations
> of
>
> the employee or applicant.
>
> § 104.13 Employment criteria.
>
> (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 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 Director to be available.
>
> (b) A recipient shall select and administer 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 accurately reflect the applicant's or employee's job
> skills,
>
> aptitude, or whatever other factor the test purports to measure, rather than
>
> reflecting the applicant's or employee's impaired sensory, manual, or
> speaking
>
> skills (except where those skills are the factors that the test purports to
>
> measure).
>
> § 104.14 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 an 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 § 104.6 (a), when a recipient is
>
> taking voluntary action to overcome the effects of conditions that resulted
> in
>
> limited participation in its federally assisted program or activity pursuant
> to
>
> § 104.6(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 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 as
> 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; and
>
> (3) Government officials investigating compliance with the
> Act
>
> shall be provided relevant information upon request.
>
> Subpart C--Accessibility
>
> § 104.21 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.
>
> § 104.22 Existing facilities.
>
> (a) Accessibility. A recipient shall operate its program
> or
>
> activity so that when each part is viewed in its entirety, it 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 requirements
> 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 beneficiaries, home visits, delivery of health, welfare, or other
>
> social services at alternate accessible sites, alteration of existing
> facilities
>
> and construction of new facilities in conformance with the requirements of §
>
> 104.23, or any other methods that result in making 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
>
> achieving compliance with paragraph (a) of this section. In choosing among
>
> available methods for meeting the requirement of paragraph (a) of this
> section,
>
> a recipient shall give priority to those methods that serve handicapped
> persons
>
> in the most integrated setting appropriate.
>
> (c) Small health, welfare, or other social service
> providers.
>
> If a recipient with fewer than fifteen employees that provides 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 services that are accessible.
>
> (d) Time period. A recipient shall comply with the
> requirement
>
> of paragraph (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 necessary to meet the requirement of paragraph (a) of this
>
> section, a recipient 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 interested
> 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 accessibility of its program or activity to handicappped
> 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 accessibility in order to comply with paragraph (a) of this
> section
>
> and, if the time period of the transition plan is longer than one year,
> identify
>
> the steps of 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 adopt and implement
> procedures
>
> to ensure that interested persons, including persons with impaired vision or
>
> hearing, can obtain information as to the existence and location of
> services,
>
> activities, and facilities that are accessible to and usuable by handicapped
>
> persons.
>
> § 104.23 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 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 facility shall, to the maximum extent feasible, be
>
> altered in such manner 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 (UFAS) (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 and 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 phusical handicaps.
>
> (3) This section does not require recipients to make
> building
>
> alterations that have little likelihood of being accomplished without
> removing
>
> or altering a load‑bearing structural member.
>
> [45 FR 30936, May 9, 1980; 45 FR 37426, June 3, 1980, as amended at 55 FR
> 52138,
>
> 52141, Dec. 19, 1990]
>
> Subpart D -- Preschool, Elementary, and Secondary
> Education
>
> § 104.31 Application of this subpart.
>
> Subpart D applies to preschool, elementary, secondary, and
>
> adult education programs or activities that receive Federal financial
> assistance
>
> and to recipients that operate, or that receive Federal financial assistance
> for
>
> the operation of, such programs or activities.
>
> § 104.32 Location and notification.
>
> A recipient that operates a public elementary or secondary
>
> education program or activity 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
> and
>
> their parents or guardians of the recipient's duty under this subpart.
>
> § 104.33 Free appropriate public education.
>
> (a) General. A recipient that operates a public elementary
> or
>
> secondary education program or activity 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) For the purpose of this
>
> subpart, the provision 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 adequately as the
> needs
>
> of nonhandicapped persons are met and (ii) are based upon adherence to
>
> procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36.
>
> (2) Implementation of an Individualized Education Program
>
> developed in accordance with the Education of 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 handicapped person or refer
> such a
>
> person for aid, benefits, or services other than those that it operates or
>
> provides as its means of carrying out the requirements of this subpart. If
> so,
>
> the recipient remains responsible for ensuring that the requirements of this
>
> subpart are met with respect to any handicapped person so placed or
> referred.
>
> (c) Free education -- (1) General. For the purpose of this
>
> section, the provision of a free education is the provision of educational
> and
>
> related services without 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 recipient places a handicapped person or refers such
> person
>
> for aid, benefits, or services not operated or provided by the recipient as
> its
>
> means of carrying out the requirements of this subpart, of payment for the
> costs
>
> of the aid, benefits, or services. Funds available from any public or
> private
>
> agency may be used to meet the requirements of this subpart. Nothing in this
>
> section shall be construed to relieve an insurer or similar third party from
> an
>
> otherwise valid obligation to provide or pay for services provided to a
>
> handicapped person.
>
> (2) Transportation. If a recipient places a handicapped
> person
>
> or refers such person for aid, benefits, or services not operated or
> provided by
>
> the recipient as its means of carrying out the requirements of this subpart,
> the
>
> recipient shall ensure that adequate transportation to and from the aid,
>
> benefits, or services 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
>
> aid, benefits, or services operated by the recipient.
>
> (3) Residential placement. If a public or private
> residential
>
> placement is necessary to provide a free appropriate public education to a
>
> handicapped person because of his or her handicap, the placement, 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 requirements of this
>
> section and §104.34, 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. Disagreements between a parent or guardian and a recipient
>
> regarding whether the recipient has made a free appropriate public education
>
> available or otherwise regarding the question of financial responsibility
> are
>
> subject to the due process procedures of §104.36.
>
> (d) Compliance. A recipient may not exclude any qualified
>
> handicapped person from a public elementary or secondary 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 requirements of the
> preceding
>
> paragraphs of this section shall meet such requirements at the earliest
>
> practicable time and in no event later than September 1, 1978.
>
> § 104.34 Educational setting.
>
> (a) Academic setting. 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 appropriate to the needs of the handicapped person. A
>
> recipient shall place a handicapped person in the regular educational
>
> 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 services cannot be achieved satisfactorily. Whenever
> a
>
> recipient places a person in a setting other than the regular educational
>
> environment pursuant to this paragraph, it shall take into account the
> proximity
>
> of the alternate setting to the person's home.
>
> (b) Nonacademic settings. In providing or arranging for
> the
>
> provision of nonacademic and extracurricular services and activities,
> including
>
> meals, recess periods, and the services and activities set forth in §
>
> 104.37(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 recipient, 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 activities provided therein are comparable to the other
> facilities,
>
> services, and activities of the recipient.
>
> § 104.35 Evaluation and placement.
>
> (a) Preplacement evaluation. A recipient that operates a
>
> public elementary or secondary education program or activity shall conduct
> an
>
> evaluation in accordance with the requirements of paragraph (b) of this
> section
>
> of any person who, because of handicap, needs or is belived to need special
>
> education or related services before taking any action with respect to the
>
> initial placement of the person in regular or special education and any
>
> subsequent significant change in placement.
>
> (b) Evaluation procedures. A recipient to which this
> subpart
>
> applies shall establish standards and procedures for the evaluation and
>
> placement of persons who, because of handicap, need or are believed to need
>
> special education or related services which ensure that:
>
> (1) Tests and other evaluation materials have been
> validated
>
> for the specific purpose for which they are used and are administered by
> trained
>
> personnel in conformance with the instructions provided by their producer;
>
> (2) Tests and other evaluation materials include those
>
> tailored to assess specific areas of educational need and not merely those
> which
>
> are designed to provide a single general intelligence quotient; and
>
> (3) Tests are selected and administered 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 reflecting the student's impaired sensory, manual, or speaking skills
>
> (except where those skills are the factors that the test purports to
> measure).
>
> (c) Placement procedures. In interpreting 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
>
> recommendations, physical condition, social or cultural background, and
> adaptive
>
> behavior, (2) establish procedures to ensure that information obtained from
> all
>
> such sources is documented and carefully considered, (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 §104.34.
>
> (d) Reevaluation. A recipient to which this section
> applies
>
> shall establish procedures, in accordance with paragraph (b) of this
> section,
>
> for periodic reevaluation 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.
>
> § 104.36 Procedural safeguards.
>
> A recipient that operates a public elementary or secondary
>
> education program or activity shall establish and implement, with respect to
>
> actions regarding the identification, evaluation, or educational placement
> of
>
> persons who, because of handicap, 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 guardian of the person to examine
>
> relevant records, an impartial hearing with opportunity for participation by
> the
>
> person's parents or guardian and representation by counsel, and a review
>
> procedure. Compliance with the procedural safeguards of section 615 of the
>
> Education of the Handicapped Act is one means of meeting this requirement.
>
> § 104.37 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 necessary to afford handicapped students an equal opportunity
> for
>
> participation in such services and activities.
>
> (2) Nonacademic and extracurricular services and
> activities
>
> may include counseling services, physical recreational athletics,
>
> transportation, health services, recreational activities, special interest
>
> groups or clubs sponsored by the recipients, referrals to agencies which
> provide
>
> assistance to handicapped persons, and employment of students, including
> both
>
> employment by the recipient and assistance in making available outside
>
> employment.
>
> (b) Counseling 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.
>
> (c) 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 interscholastic, club, or
>
> intramural athletics shall provide to qualified handicapped students an
> equal
>
> opportunity for participation.
>
> (2) A recipient may offer to handicapped students physical
>
> education and athletic activities that are separate or different from those
>
> offered to nonhandicapped students only if separation or differentiation is
>
> consistent with the requirements of §104.34 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.
>
> § 104.38 Preschool and adult education.
>
> A recipient to which this subpart applies that provides
>
> preschool education or day care or adult education may not, on the basis of
>
> handicap, exclude qualified handicapped persons and shall take into account
> the
>
> needs of such persons in determining the aid, benefits, or services to be
>
> provided.
>
> § 104.39 Private education.
>
> (a) A recipient that provides private elementary or
> secondary
>
> education may not, on the basis of handicap, exclude a qualified handicapped
>
> person if the person can, with minor adjustments, be provided an appropriate
>
> education, as defined in §104.33(b)(1), within that recipient's program or
>
> activity.
>
> (b) A recipient to which this section applies may not
> charge
>
> more for the provision of an appropriate education to handicapped persons
> than
>
> to nonhandicapped persons except to the extent that any additional charge is
>
> justified by a substantial increase in cost to the recipient.
>
> (c) A recipient to which this section applies that
> provides
>
> special education shall do so in accordance with the provisions of §§ 104.35
> and
>
> 104.36. Each recipient to which this section applies is subject to the
>
> provisions of §§ 104.34, 104.37, and 104.38.
>
> Subpart E -- Postsecondary Education
>
> § 104.41 Application of this subpart.
>
> Subpart E applies to postsecondary education programs or
>
> activities, including postsecondary vocational education programs or
> activities,
>
> that receive Federal financial assistance and to recipients that operate, or
>
> that receive Federal financial assistance for the operation of, such
> programs or
>
> activities.
>
> § 104.42 Admissions and recruitment.
>
> (a) General. Qualified handicapped persons may not, on the
>
> basis of handicap, be denied admission or be subjected to discrimination in
>
> admission or recruitment by a recipient to which this subpart applies.
>
> (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
>
> handicapped persons who may be admitted;
>
> (2) May not make use of any test or criterion for
> admission
>
> that has a disproportionate, adverse effect on handicapped persons or any
> class
>
> of handicapped persons unless (i) the test or criterion, as used by the
>
> recipient, has been validated as a predictor of success in the education
> program
>
> or activity in question and (ii) alternate tests or criteria that have a
> less
>
> disproportionate, adverse effect are not shown by the Assistant Secretary to
> be
>
> available.
>
> (3) Shall assure itself that (i) admissions 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 accurately reflect the applicant's aptitude or achievement
>
> level or whatever other factor the test purports to measure, rather than
>
> reflecting the applicant's impaired sensory, manual, or speaking skills
> (except
>
> 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
>
> admissions 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 preadmission inquiry as to whether an applicant for admission is a
>
> handicapped person but, after admission, may make inquiries on a
> confidential
>
> basis as to handicaps that may require accommodation.
>
> (c) Preadmission inquiry exception. When a recipient is
> taking
>
> remedial action to correct the effects of past discrimination pursuant to
>
> §104.6(a) or when a recipient is taking voluntary action to overcome the
> effects
>
> of conditions that resulted in limited participation in its federally
> assisted
>
> program or activity pursuant to §104.6(b), the recipient may invite
> applicants
>
> for admission 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 action efforts; and
>
> (2) The recipient states clearly that the information is
> being
>
> requested on a voluntary basis, that it will be kept confidential, 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 recipient may base prediction equations on first year
> grades,
>
> but shall conduct periodic validity studies against the criterion of overall
>
> success in the education program or activity in question in order to monitor
> the
>
> general validity of the test scores.
>
> § 104.43 Treatment of students; general.
>
> (a) No qualified handicapped student shall, on the basis
> of
>
> handicap, be excluded from participation in, be denied the benefits of, or
>
> otherwise be subjected to discrimination under any academic, research,
>
> occupational training, housing, health insurance, counseling, financial aid,
>
> physical education, athletics, recreation, transportation, other
>
> extracurricular, or other postsecondary education aid, benefits, or services
> to
>
> which this subpart applies.
>
> (b) A recipient to which this subpart applies that
> considers
>
> participation by students in education programs or activities not operated
>
> wholly by the recipient as part of, or equivalent to, and education program
> or
>
> activity operated by the recipient shall assure itself that the other
> education
>
> program or activity, as a whole, provides an equal opportunity for the
>
> participation of qualified handicapped persons.
>
> (c) A recipient to which this subpart applies may not, on
> the
>
> basis of handicap, 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 program or activity in the most integrated setting appropriate.
>
> § 104.44 Academic adjustments.
>
> (a) Academic requirements. A recipient to which this
> subpart
>
> applies shall make such modifications to its academic requirements as are
>
> necessary to ensure that such requirements do not discriminate or have the
>
> effect of discriminating, on the basis of handicap, against a qualified
>
> handicapped applicant or student. Academic requirements that the recipient
> can
>
> demonstrate are essential to the instruction being pursued by such student
> or to
>
> any directly related licensing requirement will not be regarded as
>
> discriminatory within the meaning of this section. Modifications may include
>
> changes in the length of time permitted for the completion of degree
>
> requirements, substitution of specific 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 limiting 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 achievement, a recipient to
> which
>
> this subpart applies shall provide such methods for evaluating the
> achievement
>
> of students who have a handicap that impairs sensory, manual, or speaking
> skills
>
> as will best ensure that the results of the evaluation represents the
> student'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 discrimination because 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
>
> attendants, individually prescribed devices, readers for personal use or
> study,
>
> or other devices or services of a personal nature.
>
> § 104.45 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 subpart 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 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 assistance 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 its students may not do so in a manner that violates subpart
> B.
>
> § 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
>
> disacriminate 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.
>
> Subpart F -- Health, Welfare, and Social Services
>
> § 104.51 Application of this subpart.
>
> Subpart F applies to health, welfare, and other social
> service
>
> programs or activities that receive Federal financial assistance and to
>
> recipients that operate, or that receive Federal financial assistance for
> the
>
> operation of, such programs or activities.
>
> § 104.52 Health, welfare, and other social services.
>
> (a) General. In providing health, welfare, or other social
>
> services or benefits, a recipient may not, on the basis of handicap:
>
> (1) Deny a qualified handicapped person these benefits or
>
> services;
>
> (2) Afford a qualified handicapped person an opportunity
> to
>
> receive benefits 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 §104.4(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 benefits or services to
>
> handicapped persons except where necessary to provide qualified 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, including those with impaired sensory or speaking
> skills,
>
> are not denied effective notice because of their handicap.
>
> (c) Emergency treatment for the hearing impaired. A
> recipient
>
> hospital that provides health services or benefits shall establish a
> procedure
>
> for effective communication 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 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.
>
> § 104.54 Education of institutionalized persons.
>
> A recipient to which this subpart applies and that
> operates or
>
> supervises a program or activity that provides aid, benefits or services for
>
> persons who are institutionalized because of handicap shall ensure that each
>
> qualified handicapped person, as defined in §104.3(k)(2), in its program or
>
> activity is provided an appropriate education, as defined in §104.33(b).
> Nothing
>
> in this section shall be interpreted as altering in any way the obligations
> of
>
> recipients under subpart D.
>
> Subpart G -- Procedures
>
> § 104.61 Procedures.
>
> The procedural provisions applicable to title VI of the
> Civil
>
> Rights Act of 1964 apply to this part. These procedures are found in §§
>
> 100.6‑100.10 and part 101 of this title.
>
>
>
> [Know Your Rights] [Prevention] [Civil Rights Data] [About OCR] [Reading
> Room]
>
> [Related Links]
>
> This page last modified November 29, 2000 (ts)
>
> ----- Original Message -----
> From: "Elizabeth" <lizmohnke at hotmail.com>
> To: <nfbmi-talk at nfbnet.org>
> Sent: Tuesday, May 04, 2010 8:27 PM
> Subject: Re: [nfbmi-talk] they are still jawboning about role of commission
> now?
>
>
> >
> > Hello Joe,
> >
> > Many of us on the list are aware of the things that have been discussed at
> > the Michigan Commission for the Blind board meetings over the past few
> > years. Furthermore, the minutes of these board meetings can easily be
> > found on the Michigan Commission for the Blind website for anyone to read.
> > I ask that you please keep this in mind when posting to the list.
> >
> > Thanks,
> > Elizabeth
> >
> >> From: joeharcz at comcast.net
> >> To: nfbmi-talk at nfbnet.org
> >> Date: Tue, 4 May 2010 18:07:36 -0400
> >> Subject: [nfbmi-talk] they are still jawboning about role of commission
> >> now?
> >>
> >> http://www.michigan.gov/dleg/0,1607,7-154-28077_28313-205402--,00.html
> >>
> >> SEPTEMBER 18, 2008
> >>
> >> VICTOR BUILDING
> >>
> >> LANSING, MICHIGAN
> >>
> >>
> >>
> >> RETREAT MINUTES
> >>
> >>
> >>
> >> COMMISSIONERS PRESENT
> >>
> >> Ms. Jo Ann Pilarski, Chair
> >>
> >> Ms. Velma Allen, Vice-Chair
> >>
> >> Ms. Margaret Wolfe
> >>
> >> Mr. Mark Eagle
> >>
> >> Ms. Geri Taeckens
> >>
> >>
> >>
> >> COMMISSIONERS ABSENT
> >>
> >> None
> >>
> >>
> >>
> >> MICHIGAN COMMISSION FOR THE BLIND (MCB) STAFF PRESENT
> >>
> >> Mr. Patrick Cannon
> >>
> >> Ms. Sue Luzenski
> >>
> >> Mr. Leamon Jones
> >>
> >> Ms. Sherri Heibeck
> >>
> >>
> >>
> >> GUESTS/ATTENDEES
> >>
> >> Mr. Terry Eagle
> >>
> >> Mr. Raymond Roberson
> >>
> >>
> >>
> >> Committee of the whole called to order at 2:20 p.m.
> >>
> >>
> >>
> >> Training on Role and Representation of Commissioners
> >>
> >>
> >>
> >> Commissioner Allen opened the meeting speaking about a training module
> >> that her and Director Cannon had taken part of during the NCSAB
> >> conference in April
> >>
> >> 2008. The training module focused on the role and representation of
> >> commissioners, clarifying the roles and relationships between the
> >> commissioners and
> >>
> >> the administration in relation to directing the Director, not dictating
> >> or micro-managing. Commissioner Allen looked into presenting the training
> >> module
> >>
> >> at the retreat but a more in-depth look into accessing it and the length
> >> needs to be done by staff. Sue Luzenski will circulate a document that
> >> was prepared
> >>
> >> called Communications Protocol that may address some of these questions.
> >>
> >>
> >>
> >> Dialogue moved into talking about the Director's objectives and how the
> >> Commissioners have taken a more active role than in the past. Director
> >> Cannon stated
> >>
> >> that the MCB Director is not only accountable to the Commissioners but
> >> also reports to Deputy Director Levin in DLEG and is held accountable by
> >> that office.
> >>
> >> Director Cannon stated that the Action Plan is a useful management tool
> >> which states clearly the goals and progress of staff. The plan contains
> >> many objectives
> >>
> >> related to the Director's evaluation.
> >>
> >>
> >>
> >> P.A. 260
> >>
> >>
> >>
> >> Chair Pilarski asked Commissioners to come forward with any issues or
> >> thoughts regarding PA 260. The law is still relevant today though current
> >> practices
> >>
> >> may be different in some instances than which is stated in the 1978
> >> statute. Commissioner Taeckens brought up concerns regarding section
> >> 393.356, Education
> >>
> >> of Blind Youth. Commissioner Taeckens conducted a training program at
> >> Camp Tuhsmeheta this summer and notes that, in her view, the children
> >> were lacking
> >>
> >> in skills of independence. She asked what the Commission is doing to
> >> address the issue of educating blind kids. Leamon Jones spoke regarding
> >> the role the
> >>
> >> Commission plays in making sure that all MCB does is in compliance with
> >> special education limits. MCB currently has an MOU between MCB, DLEG and
> >> the Department
> >>
> >> of Education and MCB has made summer transition programs a focus. Further
> >> discussion centered around what the commission can do to begin educating
> >> youth
> >>
> >> earlier, communicating what services are currently available for blind
> >> youth age 14 and older, exposing blind youth to the tools necessary to
> >> help them
> >>
> >> be successful into adulthood both socially and economically, determining
> >> how much Braille teaching time is necessary to become proficient, having
> >> Braille
> >>
> >> and sign language be part of the Special Education Teacher curriculum
> >> during college, combating the notion of low expectations for blind and
> >> visually impaired
> >>
> >> youth, advocate groups that are currently formed to prioritize and
> >> address these issues and focusing on educating parents to advocate for
> >> their blind youth.
> >>
> >> The end result of this discussion was to have 1 or 2 of these advocate
> >> groups at a future commissioner meeting to discuss these priorities. It
> >> was suggested
> >>
> >> that a paper be put together regarding guiding principles for educating
> >> blind youth for topics of discussion to the Superintendent of public
> >> education.
> >>
> >>
> >>
> >> Bylaws
> >>
> >>
> >>
> >> Commissioner Eagle brought raised the point that portions of the
> >> Commissioner bylaws are outdated and need to be revised. Discussion
> >> included creating a
> >>
> >> 1 - 2 person sub-committee to review the bylaws, bring any
> >> recommendations to the Board at a future commission meeting and consider
> >> proposals to changes
> >>
> >> in the bylaws. Chair Pilarski indicated topics to be looked at: purpose
> >> of the board, role as liaison to MCB committees and definition of a
> >> consumer. Other
> >>
> >> items discussed was whether or not the vice-chair needs to be re-elected
> >> each year; an informal poll concluded that the commissioners do want to
> >> re-elect
> >>
> >> the vice-chair each year.
> >>
> >>
> >>
> >> Chair Pilarski stated that she has received inquiries from BEP Operators
> >> regarding the role of Commissioners and BEP. Sherri Heibeck clarified who
> >> is the
> >>
> >> responsible authority of the BEP program. The Board's role is to have the
> >> final say on ALJ decisions and BEP policies. Legal action beyond the
> >> agency goes
> >>
> >> to Federal arbitration and then civil court.
> >>
> >>
> >>
> >> Board Meeting Structure
> >>
> >>
> >>
> >> Chair Pilarski raised the issue of public comment at recent commission
> >> meetings and the confrontational tone demonstrated by some individuals.
> >> There was
> >>
> >> further discussion on how to provide ample time for public comment and
> >> consumer involvement and still maintain orderly and respectful
> >> communications. Ms.
> >>
> >> Heibeck stated there are rules for conduct on any owned or leased state
> >> property and the DMB Policy for conduct on state property can be
> >> forwarded to the
> >>
> >> Commissioners for their review.
> >>
> >>
> >>
> >> Another question was posed as to the number of meetings MCB has. Director
> >> Cannon spoke to the Rehab Act and how it states that there must be at
> >> least 4
> >>
> >> meetings a year. The state has mandated a cut in meetings in response to
> >> the budget situation. Director Cannon noted that although regular
> >> meetings have
> >>
> >> been reduced to once every 3 months, the Chair can call a special meeting
> >> if an urgent issue arises which cannot wait until the next scheduled
> >> meeting.
> >>
> >>
> >>
> >> Another issue is the meeting not moving around the state allowing the
> >> exposure to all consumers throughout the state. Commissioner Taeckens
> >> suggested having
> >>
> >> a common meeting place where consumers can congregate to participate as a
> >> large group by phone or go to a library to share audio streaming
> >> capabilities
> >>
> >> during a commission meeting. There was also discussion about conducting
> >> all of the meetings in Lansing as opposed to holding some meetings in
> >> different
> >>
> >> parts of the state as had been done in the past. It was agreed that
> >> consideration should be given to holding one meeting next year in the
> >> northern part
> >>
> >> of the state, perhaps Marquette in the fall.
> >>
> >>
> >>
> >> Public Comment
> >>
> >>
> >>
> >> Terry Eagle:
> >>
> >>
> >>
> >> Mr. Eagle stated there is an issue with correspondence between people who
> >> write to the board but get a response from Director Cannon. He stated the
> >> board
> >>
> >> should be united, talking amongst themselves and coming up with a
> >> response, not push this off on an administrator. There should be a duty
> >> to respond to
> >>
> >> them directly as a board.
> >>
> >>
> >>
> >> Mr. Eagle commented when MCB started there was 11 meetings with two 15
> >> minute public comment sections, then meetings were reduced to 6 and now
> >> to 4 a year.
> >>
> >> Mr. Eagle agreed with putting a timer on public comment, other solutions
> >> could be a sign up sheet, issues spoken of being specific to agenda
> >> items, public
> >>
> >> comment held before lunch and then again at the end of the meeting.
> >>
> >>
> >>
> >> Ray Roberson
> >>
> >>
> >>
> >> Mr. Roberson stated that there is insufficient time for public comment at
> >> commission meeting. How will the commission know what problems the public
> >> is facing
> >>
> >> if you don't hear from consumers? If there are problems and issues how
> >> will the board know if they don't give consumers a chance to speak
> >> directly to the
> >>
> >> board?
> >>
> >>
> >>
> >> Adjourned: 5:18
> >>
> >>
> >>
> >> ______________________________
> >> _______________________________________________
> >> nfbmi-talk mailing list
> >> nfbmi-talk at nfbnet.org
> >> http://www.nfbnet.org/mailman/listinfo/nfbmi-talk_nfbnet.org
> >> To unsubscribe, change your list options or get your account info for
> >> nfbmi-talk:
> >> http://www.nfbnet.org/mailman/options/nfbmi-talk_nfbnet.org/lizmohnke%40hotmail.com
> >
> > _________________________________________________________________
> > The New Busy is not the old busy. Search, chat and e-mail from your inbox.
> > http://www.windowslive.com/campaign/thenewbusy?ocid=PID28326::T:WLMTAGL:ON:WL:en-US:WM_HMP:042010_3
> > _______________________________________________
> > nfbmi-talk mailing list
> > nfbmi-talk at nfbnet.org
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>
>
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