[nfbmi-talk] higher ed's obligations under 504 relates to timelines, provisions of auxilliary aids, and more
joe harcz Comcast
joeharcz at comcast.net
Sat Jun 26 17:53:06 UTC 2010
June 26, 2010
Memo To: MCB Commissioners, staff, CAP, and other interested parties re: college policy
Re: Postsecondary ed obligations under Section504 of the Rehabilitation Act of 1973 regulations
All,
These are the relevant sections of the Section 504 regulations applicable to higher educational facilities. (Note there are also obligations under Title II of the ADA for public entities, and Title III of the ADA for non-public postsecondary institutions though 504 applies to all as recipients of federal funds including those funding from MCB which are primarly federal to begin with.)
These go to the simple obligations of the postsecondary school. In relationship to the “timeline” issue in the proposed college policy I’ve noted all sorts of references to what college’s require, mostly from staff and colleges themselves. But, note here the requirement under “academic adjustments” that certainly obligates a college or university to extend terms of students with disabilities on a case by case basis.
Just as the IPE is the generating document for responsabilities of MCB, Section 504 and these and other rules define the postsecondary institutions role.
More often than not in my experience both the higher educational facility and the V.R. agency point to each other and lay some sort of blame with the student getting caught in the cross fire.
Clearly the memos of understanding need to include some direct education of the college on its own long standing obligations.
And clearly MCB staff should be knoledgable about these civil rights applications and those that are supposed to guide their activities in service delivery. In other words 504 applies to both the college and MCB. So does the Americans with Disabilities Act.
Sincerely,
Paul Joseph Harcz, Jr.
Attachment:
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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