[nfbmi-talk] these are our 504 civil rights turns 40 tthursday
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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.
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