[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
> > _______________________________________________
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> > nfbmi-talk at nfbnet.org
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> 
> 
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