[nfbmi-talk] applies to all recipients of federal funds

Thu Oct 16 18:56:30 UTC 2014

That includes, MPAS, BSBP, MCRS, MRS, and each and every CIL just to begin with.

None of these entities would exist wwithout the very funding from the Rehab Act of which 504 is the precise civil rights law under that act,.

Joe

Section 504 Breifing from Brian East Important

http://www.ilru.org/html/training/webcasts/handouts/2002/08-12-02/outline.txt

The Power and Scope of Section 504 of the Rehabilitation

Act - Using it to Advocate for Your Rights as a Person with

a Disability

1.   What is 504?

a. Text: "No otherwise qualified individual with a

disability . . . shall, solely by reason of her or

his disability, be excluded from the participation

in, be denied the benefits of, or be subjected to

discrimination under any program or activity

receiving Federal financial assistance or under

any program or activity conducted by any

Executive agency or by the United States Postal

Service."

b. Citation:  29 U.S.C. 794(a).

2. The 504 regulations.

a. The statute is written very broadly; the details are in

the enforcing regulations. [For some history on

the regulations, see the story and links at

<http://www.ragged_edge_mag.com/0102/0102

ft6.html>.  See also Cherry v. Mathews, 419

F.Supp. 922 (D.D.C. 1976) (requiring federal

agency to issue 504 regulations).]

b. Each Federal agency has its own set of 504

regulations that apply to its own programs.

c. Each agency that provides Federal financial

assistance must issue its own 504 regulations

covering entities that receive Federal aid, and

the regulations must be consistent with the

coordinating regulations.  28 C.F.R. 41.4(a)

and (c).

d. The "coordinating regulations"

i. The authority to issue "coordinating

regulations" was originally given to the

old Dep't of Health, Education &

Welfare (HEW), and these original

regulations are now codified by the

Dep't of Health & Human Services at 45

C.F.R. Part 84.  These HEW regulations

are of particular significance because of

that agency's original role as

coordinating agency.  Toyota Motor

Mfg., Kentucky, Inc. v. Williams, 534

U.S. 184, 122 S.Ct. 681, 690 (2002).

ii. The coordinating authority was transferred to

the Dep't of Justice (DOJ) by Executive

Order 12250 (11/2/80), and the

coordinating regulations now appear at

28 C.F.R. Part 41.

iii. Note that the 504 regulations are important

not just for interpreting 504, but also

for interpreting Title II of the ADA,

since Congress required that the Title II

regulations be consistent with those

adopted under 504.  42 U.S.C.

12134(b); Olmstead v. L. C. by

Zimring, 527 U.S. 581, 591 (1999).

e. Some other specific agency regulations are found at:

i. Defense Dep't - 32 C.F.R. pt. 56

ii. HUD - 24 C.F.R. pt. 8

iii. Justice - 28 C.F.R. 42.501-.540

iv. Dep't of Labor - 29 C.F.R. pt. 32

v. Dep't of Transportation - 49 C.F.R. pt. 27

f. For a list of federal agency 504 coordinators, see

<http://www.access_board.gov/enforcement/50

4.htm>.

3. To whom does 504 apply?

a. Any program or activity conducted by any Executive

agency

i. The Rehabilitation Act does not apply to the

Judicial Branch or federal courts.  For

information on the internal policy of the

federal courts to accommodate

communications disabilities, see

<http://www.pai_ca.org/Pubs/502601.ht

m#Federal>.

ii. Although the Rehabilitation Act does not by

its own terms apply to the Legislative

Branch, the Congressional

Accountability Act of 1995 extended the

employment protections of the Act to

employees of the House, Senate, and

certain specified arms of Congress.  See

2 U.S.C. 1301(3) and 1311.

b. Any program or activity conducted by the United

States Postal Service; or

c. Any program or activity receiving Federal financial

assistance.

i. Program or activity means, according to 45

C.F.R. 84.3:

(1) The particular department or agency

of State or local government:

(a) "program or activity"

includes the particular

department or agency,

special purpose district,

or other instrumentality

of a State or of a local

government that receives

Federal financial

assistance; or

(b) the particular entity of such

State or local government

that distributes such

assistance, and each such

department or agency or

other State or local

government entity to

which the assistance is

extended.

(c) 504 only applies to the

particular department or

agency that receives or

distributes federal

financial assistance.

Lightbourn v. County of

El Paso, Texas, 118 F.3d

421, 427 (5th Cir. 1997).

Thus, the state as a whole

is not a "program or

activity" under 504, id.,

nor is a city as a whole.

Micek v. City of Chicago,

1999 WL 966970*2

(N.D.Ill. 1999).

(2) All of the following entities, even if

only a portion of them receive

Federal financial assistance:

(a) a college, university, or other

post-secondary

institution, or a public

system of higher

education; or

(b) a local educational agency

(i.e., school district),

system of vocational

education, or other school

system; or

(c) a corporation, partnership, or

other private

organization, or sole

proprietorship.

ii. A recipient of federal financial assistance:

(1) Is defined in 45 C.F.R. 84.3(f) and

28 C.F.R. 41.3(d) to include:

(a) any state or its political

subdivision;

(b) any instrumentality of a state

or its political

subdivision;

(c) any public or private agency,

institution, organization,

or other entity; or

(d) 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.  But

see, e.g., Berthelot v.

Stadler, 2000 WL

1568224*3 (E.D.La.

2000) (individual

government officials are

not themselves recipients

of federal financial

assistance).

(2) Includes public and private entities

that receive federal funding

subsidies, either directly or

through another recipient.  Grove

City College v. Bell, 465 U.S.

555 (1984) (college was

"recipient" of federal financial

assistance to its students);

Bartlett v. New York State Board

of Law Examiners, 156 F.3d 321

(2d Cir. 1998), vacated on other

grounds, 527 U.S. 1031 (1999),

aff'd on remand on other

grounds, 226 F.3d 69 (2d Cir.

2000) (entity receiving assistance

indirectly through vouchers is

covered, even though it never

was given opportunity to turn

down federal aid); Horner v.

Kentucky High School Athletic

Ass'n, 43 F.3d 265 (6th Cir. 1994)

(athletic association, as agent of

state board of education,

indirectly received federal

funds).  See also 160 A.L.R. Fed.

297.

(3) Does not include those who do not

receive Federal financial

assistance, but merely benefit

from it.  U.S. Dept. of Transp. v.

Paralyzed Veterans of America,

477 U.S. 597 (1986) (504 did

not apply to commercial airlines

by virtue of federal financial

assistance provided to airports or

by virtue of nationwide air traffic

control system operated by

federal government).

iii. Federal financial assistance:

(1) Includes any grant, loan, contract, or

any other arrangement by which

a federal agency provides or

otherwise makes available

assistance.  45 C.F.R. 84.3(h);

28 C.F.R. 41.3(e).

(a) Many courts have found that

it includes Medicare and

Medicaid recipients.

E.g., United States v.

Baylor Univ. Med. Ctr.,

736 F.2d 1039, 1042 (5th

Cir.1984), cert. denied,

469 U.S. 1189 (1985);

Estate of Alcalde v.

Deaton Specialty Hosp.

Home, Inc., 133

F.Supp.2d 702, 708

(D.Md. 2001); Lesley v.

Chie, 81 F.Supp.2d 217,

222 (D.Mass. 2000),

aff'd, 250 F.3d 47 (1st Cir.

2001).

(b) Includes colleges whose

students receive federal

aid such as Pell grants.

Grove City College v.

Bell, 465 U.S. 555, 569-

570 (1984) (Title IX

coverage is not foreclosed

because federal funds are

granted to college's

students rather than

directly to one of the

college's educational

programs).

(2) Does not include procurement

contracts, Mass v. Martin

Marietta, 805 F.Supp. 1530,

1542 (D. Colo. 1992), or

contracts of insurance or

guaranty.  45 C.F.R. 84.3(h); 28

C.F.R. 41.3(e).  See Muller v.

Hotsy Corp., 917 F.Supp. 1389,

1417_1418 (N.D.Iowa 1996)

(holding that a private

corporation does not receive

Federal financial assistance

unless it "receives a subsidy;"

contract with GSA was

insufficient).

4. Who is protected under 504?

a. Definition of disability

i. 504 uses the same definition of disability as

that of the ADA.  29 U.S.C. 705(9)(B)

and 705(20)(B); 28 C.F.R. 41.31; 45

C.F.R. 84.3(j).

ii. For more on this definition, see "The

Definition of Disability Under the ADA

and 504," a previous ILRU webcast

online at

<http://www.ilru.org/online/handouts/20

02/East/handout.html>.

b. Qualified person with a disability means:

i. With respect to employment, a person with a

disability who, with reasonable

accommodation, can perform the

essential functions of the job in question.

28 C.F.R. 41.32; 45 C.F.R. 84.3(k)(1).

ii. With respect to services, a person with a

disability who meets the essential

eligibility requirements for the receipt of

such services.  28 C.F.R. 41.32; 45

C.F.R. 84.3(k)(4).

iii. With respect to public preschool elementary,

secondary, or adult educational services,

see 45 C.F.R. 84.3(k)(2).

iv. With respect to post-secondary and

vocational education services, see 45

C.F.R. 84.3(k)(3).

5. Definition of discrimination under 504.

a. Prohibition against discrimination generally.  29

U.S.C. 794(a); 45 C.F.R. 84.4(a); 28 C.F.R.

41.51(a).

b. No discrimination against a class of disabilities, or

based on severity of disability.  45 C.F.R.

84.4(b)(1)(iv); 28 C.F.R. 41.51(b)(1)(iv);

Hahn ex rel. Barta v. Linn County, 130

F.Supp.2d 1036, 1050 (N.D.Iowa 2001) (and

cases cited); Winkler v. Interim Services, Inc.,

36 F.Supp.2d 1026, 1030 (M.D.Tenn. 1999)

("Several courts have concluded that the

severity of one's disability can itself be

disability and that denial of services based on

the severity of a handicap would contravene

Section 504.").

c. No discrimination in "siting" decisions.  45 C.F.R.

84.4(b)(5); 28 C.F.R. 41.51(b)(4).  See also

45 C.F.R. Part 84 App. A(a)(6).

d. No surcharges.

i. There is no express provision prohibiting

surcharges as there is under ADA Title

II.  See 28 C.F.R.  35.130(f).

ii. DOJ has recognized that imposition of

surcharges (e.g., the cost of interpreter

services) is impermissible under 504.

See 28 C.F.R. Part 35 App. 35.130(f).

e. No discrimination through contracting.  45 C.F.R.

84.4(b)(1) and (b)(4); 28 C.F.R. 41.51(b)(1)

and (b)(3).

f. No discrimination through licensing or certification

programs.  45 C.F.R. 84.4(b)(1); 28 C.F.R.

41.51(b)(1).

g. Prohibits certain disparate impact discrimination.

See, e.g., 28 C.F.R. 41.51(b)(3); 45 C.F.R. Part

84 App. A(b)(17).

i. Disparate impact discrimination involves rules

or policies that are neutral on their face,

but that have a discriminatory effect on

persons with disabilities.

ii. In Alexander v. Choate, 469 U.S. 287 (1985),

the Court explained that members of

Congress made numerous statements

during passage of 504 regarding

eliminating architectural barriers,

providing access to transportation, and

eliminating discriminatory effects of job

qualification procedures. The Court then

noted: "These statements would ring

hollow if the resulting legislation could

not rectify the harms resulting from

action that discriminated by effect as

well as by design." Id. at 297 (footnote

omitted).

iii. While the Court rejected the argument that

all disparate-impact showings violate

504, it assumed that 504 reaches at

least some conduct that has an

unjustifiable disparate impact on persons

with disabilities.  Id. at 299.

iv. The recent Supreme Court decision in

Sandoval (restricting disparate impact

claims brought under Title VI) does not

affect the right to bring a disparate

impact claim under 504.  Robinson v.

State of Kansas, ___ F.3d ___, 2002 WL

1462856*1 (10th Cir. 2002).

h. Discrimination includes the failure to:

i. Provide effective communications.  See, e.g.,

28 C.F.R. 41.51(e); 45 C.F.R.

84.44(d) (regarding post-secondary

education); 45 C.F.R. 84.52(d)

(regarding health, welfare, or other

social services or benefits).

ii. Make reasonable modifications of policies,

practices, and procedures if necessary to

avoid discrimination.  Southeastern

Community College v. Davis, 442 U.S.

397 (1979).

(1) Fundamental alteration defense.  Id.

(2) See also Olmstead v. L. C. by

Zimring, 527 U.S. 581, 591

(1999).

iii. Provide aids, benefits, and services "in the

most integrated setting appropriate to the

person's needs."  45 C.F.R. 84.4(b)(2);

28 C.F.R. 41.51(d).

(1) This is the so-called "integration

mandate."  See also Olmstead v.

L. C. by Zimring, 527 U.S. 581,

591 (1999) (interpreting

substantially similar provision in

ADA Title II regulations).

(2) "A recipient may not deny a

qualified handicapped person the

opportunity to participate in

programs or activities that are

not separate or different, despite

the existence of permissibly

separate or different programs or

activities."  28 C.F.R.

41.51(b)(2).

(3) The provision of unnecessarily

separate or different services is

discriminatory.  45 C.F.R. Part

84 App. A(a)(6).

6. Affirmative obligations of recipients.

a. Notice requirements - 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 usable by

handicapped persons.  28 C.F.R. 41.51(e).

b. Grievance procedures.  45 C.F.R 84.7(b).

i. Required for recipients that employ 15 or

more persons

ii. Must incorporate appropriate due process

standards and that provide for the

prompt and equitable resolution of

complaints alleging any action

prohibited by 45 C.F.R. Part 84.

iii. Need not be established for

(1) complaints from applicants for

employment, or

(2) complaints from applicants for

admission to post-secondary

educational institutions.

c. For the 504 requirements regarding self-evaluations

and transition planning, see 8(b) and 9(c)(ii)

below.

7. Employment provisions of 504.

a. The 1992 Amendments to the Rehabilitation Act

expressly adopt the liability standards in Title I

of the ADA.  29 U.S.C. 794(d).  See also 29

C.F.R. 1614.203.

b. Some advantages of 504 over the ADA include:

i. No administrative exhaustion requirement

against non-federal defendants (see

14(d) below);

ii. No damage caps in 504 employment cases

(see 15(b)(v) below);

iii. Waiver of state's 11th amendment immunity

(see 15(b)(vi) below);

iv. Applies to recipient employers no matter

how small.

(1) See, e.g., Schrader v. Ray, ___ F.3d

___, 2002 WL 1554451 (10th

Cir. July 16, 2002); 28 C.F.R.

Part 35 App. 35.140.

(2) This is in contrast to Title I of the

ADA, which only covers

employers with 15 or more

employees.

c. General antidiscrimination provisions.  45 C.F.R.

84.11; 28 C.F.R. 41.52(a).

d. Employer must provide reasonable accommodations

if necessary.  45 C.F.R. 84.12; 28 C.F.R.

41.53.

i. Examples of accommodations in the

regulations are not exhaustive.  45

C.F.R. App. A(b)(16).

ii. Definition of reasonable accommodation

does not mention reassignment, but

reassignment may also be

accommodation under Rehabilitation

Act, at least after 1992 amendments

adopting ADA liability standards.  Gile

v. United Airlines, Inc., 95 F.3d 492,

496-497 (7th Cir. 1996).

iii. Defense of undue hardship.

e. Disparate impact discrimination.

i. Prohibits certain employment tests or

selection criteria that screen out, or tend

to screen out, persons with disabilities.

45 C.F.R. 84.13; 28 C.F.R. 41.54.

ii. See also Alexander v. Choate, 469 U.S. 287

(1985), cited in 5(g) above.

f. Pre-employment inquiries restricted.  45 C.F.R.

84.14; 28 C.F.R. 41.55.

g. Causation.

i. By its language, 504 prohibits discrimination

"solely" on the basis of disability.  This

is in contrast to the ADA, which requires

the plaintiff to prove only that the

discrimination was "because of"

disability (meaning that disability need

not be the only cause of the

discrimination).  Parker v. Columbia

Pictures Industries, 204 F.3d 326, 337

(2d Cir. 2000); Pedigo v. P.A.M.

Transp., Inc., 60 F.3d 1300, 1301 (8th

Cir. 1995); Newman v. GHS

Osteopathic, Inc., 60 F.3d 153, 158 (3d

Cir. 1995).

ii. In 1992, Congress amended 504 to clarify

that it is to be construed consistently

with the ADA.  29 U.S.C. 794(d).  Any

apparent difference in the causation

standards of the two statutes should now

be eliminated.  Newman v. GHS

Osteopathic, Inc., 60 F.3d 153, 157-158

(3d Cir. 1995); Biddle v. Ruben, 1995

WL 382961 (N.D.Ill. 1995) (1992

amendments to 501 incorporate

liability standards of ADA, and plaintiff

need only show that adverse

employment action was "because of"

disability); Ryan v. City of Highland

Heights, 1995 WL 584733 (N.D.Ohio

1995) (substantive standards of ADA

and 504 are same; causation standard is

"because of").  See also Myers v. Hose,

50 F.3d 278, 281 (4th Cir. 1995)

(substantive liability standards same);

Johnson v. New York Hospital, 897

F.Supp. 83 (S.D.N.Y. 1995) (same).  But

cf. Leary v. Dalton, 58 F.3d 748, 752 (1st

Cir. 1995) (504 causation standard an

open question).

iii. Even so, judicial opinions that do not seem

aware of the 1992 amendments continue

to cause confusion.  See, e.g., Soledad v.

U.S. Dept. of Treasury, 116 F.Supp.2d

790, 797-799 (W.D.Tex. 2000) (holding

that Rehabilitation Act requires sole

cause, and finding that jury charge using

ADA causation standard was reversible

error).

h. Question of applicability to federal employees

i. Although 504 apparently overlaps 501 in its

application to federal employees, the

courts are split as to whether individuals

may sue federal agencies under 504 for

employment discrimination.

(1) Allowing employment claims to be

brought against the federal

government under 504: Spence

v. Straw, 54 F.3d 196 (3d Cir.

1995); Doe v. Garrett, 903 F.2d

1455, 1459-1460 (11th Cir. 1990),

cert. denied, 499 U.S. 904

(1991); Prewitt v. United States

Postal Service, 662 F.2d 292,

302-304 (5th Cir. 1981).

(2) Holding or suggesting that

employment cases may not be

brought against the federal

government under 504, but

must be brought under 501:

Rivera v. Heyman, 157 F.3d 101,

104 (2d Cir. 1998) (recognizing

split in circuits, but holding that

501 is exclusive remedy for

disability discrimination in

employment claims by federal

employees); Newland v. Dalton,

81 F.3d 904, 905 n.1 (9th Cir.

1996); Johnson v. Runyon, 47

F.3d 911, 916-917 n.5 (7th Cir.

1995).

(3) Even those courts allowing federal

employment claims to proceed

under 504 generally require

exhaustion of 501

administrative requirements.

See, e.g., Prewitt, supra.  (Those

administrative requirements are

mentioned at 16(b)(ii) below.)

ii. The substantive prohibitions against

discrimination are similar under 501

and 504, although there are a few

differences, some of which are very

briefly mentioned in 16(b) below.

8. Program access requirements.

a. "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."  45 C.F.R. 84.21; 28 C.F.R. 41.56.

b. Self-evaluation requirements.  45 C.F.R. 84.6(c).

See also 28 C.F.R. 41.5(b)(2).

i. A public entity must evaluate its services,

policies, and practices, and the effects

thereof, that do not or may not meet the

requirements of the Title II regulations

ii. Must provide an opportunity for input from

the public and people with disabilities

iii. The entity must make all required

modifications to its services, policies,

and practices

iv. The evaluation was to be done within 1 year

of the effective date of this part.  (The

effective date is referenced in 9(a)

below.)

9. Architectural barriers.

a. The effective date of the original HEW 504

regulations regarding accessibility standards

was June 3, 1977.  42 FR 22676 (5/4/77);

McGregor v. Louisiana State University Bd. of

Sup'rs, 3 F.3d 850, 861 (5th Cir. 1993).

b. New construction and alterations:

i. 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, 28 C.F.R. 41.58(a);

ii. Each facility or part of a facility which is

altered by, on behalf of, or for the use of

a recipient 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, 28

C.F.R. 41.58(a);

iii. Guidelines

(1) Originally the 504 regulations

required compliance with the

American National Standards

Institute (ANSI) standards

A117.1-1961 (R 1971).

(2) Effective January 18, 1991, ANSI

was replaced by the Uniform

Federal Accessibility Standards

(UFAS); after that date, the

design, construction, or alteration

of buildings in conformance with

UFAS was deemed to comply

with the requirements of 504.

45 C.F.R. 84.23(c)(1).  The

UFAS are available online at

<http://www.access_board.gov/u

fas/ufas_html/ufas.htm>.

Deviations from UFAS are

permitted if substantially

equivalent or greater access to

and usability of the building is

provided.

(3) Compliance with ADAAG is also

acceptable.  See, e.g., 19 IDELR

694 (OCR Memo 12/1/92).

c. Older, "existing facilities"

i. "Program access" standard

(1) "A recipient shall operate each

program or activity to which this

part applies so that the program

or activity, when viewed in its

entirety, is readily accessible to

handicapped persons."  45 C.F.R.

84.22(a); 28 C.F.R. 41.57(a).

(2) Program access does not necessarily

"require a recipient to make each

of its existing facilities or every

part of a facility accessible to and

usable by handicapped persons."

45 C.F.R. 84.22(a); 28 C.F.R.

41.57(a).  A recipient is not

required to make structural

changes in existing facilities

where other methods are

effective in achieving

compliance.

(3) According to 45 C.F.R. 84.22(b), a

recipient may comply with

program access requirements

through such means as:

(a) redesign of equipment,

(b) reassignment of classes or

other services to

accessible buildings,

(c) assignment of aides to

beneficiaries,

(d) home visits,

(e) delivery of health, welfare, or

other social services at

alternate accessible sites,

(f) alteration of existing facilities

and construction of new

facilities in conformance

with the requirements of

84.23, or

(g) any other methods that result

in making its program or

activity accessible.

(4) On the other hand, a school district

or university system cannot just

make one campus or school

accessible, if the result is to

segregate persons with

disabilities in a single setting.  45

C.F.R. Part 84 App. A(c)(20).

Program access may not result in

segregation.  Id.

(5) Consistent with longstanding

interpretation of 504, carrying

an individual with a disability is

considered an ineffective and

therefore an unacceptable

method for achieving program

accessibility.  See 28 C.F.R. Part

35 App. 35.150(b)(1) (ADA

Title II regulations), citing Office

of Civil Rights, Policy

Interpretation No. 4, 43 Fed.

Reg. 36035 (HEW August 14,

1978).

(6) In choosing among available

methods for meeting the program

access requirement, a recipient

shall give priority to those

methods that offer programs and

activities to persons with

disabilities in the most integrated

setting appropriate.  45 C.F.R.

84.22(b).

(7) Changes necessary to meet program

access standards must be

developed and implemented

within 60 days of the effective

date of this part [referenced in

9(a) above], unless structural

changes are required.  45 C.F.R.

84.22(d).

ii. Transition plan requirement

(1) Applies if structural changes to

facilities are necessary to meet

program access, 28 C.F.R.

41.57(c); 45 C.F.R. 84.22(e);

(2) Must be developed within 6 months

of the effective date [referenced

in 9(a) above] of this part, 45

C.F.R. 84.22(e);

(3) Structural changes pursuant to the

plan shall be made as

expeditiously as possible, but in

any event within 3 years of the

effective date.  28 C.F.R.

41.57(b); 45 C.F.R. 84.22(d).

(The effective date is referenced

in 9(a) above.)  Outside ramps

to buildings can usually be built

easily and cheaply, and thus

should be built promptly.  45

C.F.R. Part 84 App. A(c)(20).

(4) Must at a minimum:

(a) Identify physical obstacles in

the recipient's facilities

that limit the accessibility

of its program or activity

to handicapped persons,

45 C.F.R. 84.22(e)(1);

(b) Describe in detail the

methods that will be used

to make the facilities

accessible, 45 C.F.R.

84.22(e)(2);

(c) Specify the schedule for

taking the steps necessary

to achieve full program

accessibility 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, 45

C.F.R. 84.22(e)(3); and

(d) Indicate the person

responsible for

implementation of the

plan, 45 C.F.R.

84.22(e)(4).

(5) Must be developed with the

assistance of persons with

disabilities or organizations

representing them.  28 C.F.R.

41.57(c); 45 C.F.R. 84.22(e).

(6) According to the DOJ, 504 treats

newly leased buildings as subject

to the "existing facility"

"program accessibility" standard.

28 C.F.R. Part 35 App. 35.151.

iii. Small provider exception.  29 U.S.C.

794(c); 45 C.F.R. 84.22(c); 45 C.F.R.

Part 84 App. (c)(20).

(1) Applies to recipient with fewer than

fifteen employees that provides

health, welfare, or other social

services;

(2) Applies if provider finds, after

consultation with the persons

with a disability seeking its

services, that there is no method

of providing program access

other than by making a

significant structural alteration in

its existing facilities;

(3) In such case the recipient may, as an

alternative, refer the handicapped

person to other providers of those

services that are accessible.

10. Education.

a. In addition to the coordinating regulations cited

below, the substantially similar regulations

issued by the Education Department are online

at

<http://www.ed.gov/offices/OCR/regs/34cfr104

.html>.

b. Preschool, Elementary, and Secondary Education

i. "Child find" obligation.  45 C.F.R. 84.32.

ii. Obligation to provide "free, appropriate

public education" (FAPE).  45 C.F.R.

84.33(a); 45 C.F.R. Part 84 App.

A(d)(23).

iii. Inclusion mandate - the school district must

provide for the education of, each

qualified student with a disability "with

persons who are not handicapped to the

maximum extent appropriate."  45

C.F.R. 84.34.

iv. Evaluation and placement obligations.  45

C.F.R. 84.35.  See also

<http://www.ed.gov/offices/OCR/docs/p

lacpub.html>.

v. Procedural safeguards.  45 C.F.R. 84.36.

(1) required for actions regarding

identification, evaluation, or

educational placement.

(2) must include 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.

(3) Compliance with the procedural

safeguards of IDEA is one means

of meeting this requirement.

vi. Non-academic services - schools must

provide an equal opportunity for

participation not only in academic

settings, but also in non-academic and

extracurricular 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.  45 C.F.R. 84.37.

vii. Preschool and adult education programs -

recipients may not, on the basis of

disability, exclude qualified persons

with disabilities from preschools, or

from adult education programs operated

by elementary and secondary schools,

and shall take into account the needs of

such persons in determining the aid,

benefits, or services to be provided

under the program or activity.  45 C.F.R.

84.38; 45 C.F.R. Part 84 App. A(d).

viii. Private education programs.

(1) Private programs receiving federal

financial assistance.  45 C.F.R.

84.39.

(a) Such programs may not, on

the basis of disability,

exclude a qualified

person with a disability if

the person can, with

minor adjustments, be

provided an appropriate

education

(b) Such programs may not

charge more for the

provision of an

appropriate education to

persons with disabilities,

except to the extent that

any additional charge is

justified by a substantial

increase in cost to the

recipient;

(c) A recipient that operates

special education

programs shall operate

such programs in

accordance with

10(b)(iii)-(vii) above.

(2) According to 45 C.F.R. Part 84 App.

A(a)(1), private programs that do

not themselves receive Federal

financial assistance:

(a) Are not covered just because

their students may

participate in federally

funded programs;

(b) May be indirectly subject to

these requirements under

45 C.F.R. 84.4(b)(4)

(prohibiting contracting

with those who

discriminate).

c. Post-secondary Education

i. These provisions apply to post-secondary

education programs and activities,

including post-secondary vocational

education programs and activities.  45

C.F.R. 84.41.

ii. The regulations include provisions regarding:

(1) Admissions and recruitment.  45

C.F.R. 84.42.

(2) Treatment of students.  45 C.F.R.

84.43.

(3) Academic adjustments.  45 C.F.R.

84.44.

(4) Housing.  45 C.F.R. 84.45.

(5) Financial and employment assistance

to students.  45 C.F.R. 84.46.

(6) Auxiliary aids and services.  See,

generally,

<http://www.ed.gov/offices/OCR

/docs/auxaids.html>.

d. For some answers to frequently asked questions

about 504 and the education of children with

disabilities, see

<http://www.ed.gov/offices/OCR/504faq.html>.

See also

<http://www.wrightslaw.com/info/sec504.index.

htm>.

11. Health, welfare, and other social services.  45 C.F.R.

84.52.

a. In providing health, welfare, or other social services

or benefits, a recipient may not, on the basis of

disability:

i. Deny a qualified person those benefits or

services;

ii. Give unequal opportunities to receive

benefits or services;

iii. Provide benefits or services that are not as

effective as the benefits or services

provided to others;

iv. Provide benefits or services in a manner that

limits or has the effect of limiting the

participation of qualified persons with

disabilities; or

v. Provide different or separate benefits or

services except where necessary to

provide benefits and services that are as

effective as those provided to others.

b. Notice - a recipient shall take such steps as are

necessary to ensure that effective notice is not

denied because of a disability.

c. Emergency treatment for the hearing impaired -

hospitals that provide health services or benefits

shall establish procedures for effective

communication with persons with impaired

hearing.

d. Auxiliary aids - a recipient that employs 15 or more

people shall provide appropriate auxiliary aids

where necessary to afford such persons an equal

opportunity to benefit from the service in

question.  See Davis v. Flexman, 109 F.Supp.2d

776, 787 (S.D.Ohio 1999).

e. Drug and alcohol addicts - A recipient 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.  45 C.F.R. 84.53.

f. Education of institutionalized persons - A recipient

that operates or supervises a program or activity

for persons who are institutionalized because of

disability shall ensure that each person in its

program or activity is provided a free,

appropriate education.  45 C.F.R. 84.54.

g. Although the regulations included provisions

regarding health care for infants with

disabilities, see 45 C.F.R. Part 84 App. C, these

were struck down in a series of cases, including

Bowen v. American Hosp. Ass'n, 476 U.S. 610

(1986).  But not all medical treatment decisions

are immune from scrutiny under the

Rehabilitation Act.  See, e.g., Zamora-Quezada

v. HealthTexas Medical Group of San Antonio,

34 F.Supp.2d 433, 445 (W.D.Tex. 1998).

12. Housing.

a. Standards applicable to New Construction,

Substantial Alterations, and certain public

housing projects:

i. New Construction - all new multifamily

housing projects containing five or more

dwelling units:

(1) Shall be designed and constructed to

be readily accessible to and

usable by individuals with

handicaps.  24 C.F.R.  8.3 and

8.22(a).  "Accessible" means that

the unit is located on an

accessible route and can be

approached, entered, and used by

individuals with physical

handicaps.  24 C.F.R. 8.3.

(2) Shall have:

(a) A minimum of 5% of total

dwelling units (at least

one) accessible (or

adaptable) for individuals

with mobility

impairments, 24 C.F.R.

8.22(b);

(a) An additional 2% of total

dwelling units (at least

one) accessible to persons

with hearing or vision

impairments, 24 C.F.R.

8.22(b);

(b) A higher percentage of

accessible units if HUD

determines, based on

census or other available

data, that more accessible

units are needed, 24

C.F.R. 8.22(c);

(2) Compliance with sections 3_8 of the

Uniform Federal Accessibility

Standards (UFAS) shall satisfy

these accessibility requirements.

24 C.F.R. 8.32(a).  The UFAS

are available online at

<http://www.access_board.gov/u

fas/ufas_html/ufas.htm>.

ii. The above requirements also apply to all

newly constructed public housing, public

housing developed through

rehabilitation, and all alterations to

public housing.  24 C.F.R. 8.25(a)(1)

and (2).

iii. Alterations.

(1) The above requirements also apply to

Substantial Alterations, meaning

alterations undertaken to a

project that has 15 or more units

and the cost of the alterations is

75 percent or more of the

replacement cost of the

completed facility.  24 C.F.R.

8.23(a).

(2) Standards Applicable to Other

Alterations:

(a) Other alterations to housing

facilities with five (5) or

more units must ensure

that all elements affected

by the scope of work are

designed to provide

accessibility to the

maximum extent feasible.

If the alterations to

portions of a dwelling

unit together amount to

alteration of the entire

unit, the unit must be

made accessible.

(b) A minimum of 5% of units in

a project must be made

accessible (adaptable) for

individuals with mobility

impairments, unless 5%

of the units are already

accessible or adaptable.

An additional 2% of total

dwelling units (at least

one) must be made

accessible to persons with

hearing or vision

impairments.  HUD may

increase this percentage

on the basis of data

showing a greater need.

Until 5% and 2% of the

units are made

completely accessible to

people with mobility and

sensory impairments,

respectively, each

alteration made in every

unit must meet

accessibility

requirements.  24 C.F.R.

8.23(b).

(c) Alterations to common areas

(such as entrances,

lobbies, etc.) must, to the

maximum extent feasible,

be made accessible to and

usable by individuals

with disabilities.

b. Other Provisions.

i. In developing public housing through the

purchase of existing properties, public

housing authorities shall give priority to

facilities that are readily accessible to

and usable by individuals with

disabilities.  24 C.F.R. 8.25(a)(3).

ii. Accessible dwelling units referenced in

12(a)(i)-(iii) and (b)(i) above shall, to

the maximum extent feasible and subject

to reasonable health and safety

requirements, be distributed throughout

projects and sites, and shall be available

in a comparable range of sizes and

amenities.  24 C.F.R. 8.26.

iii. When rehabilitating a unit, the resident and

Contract Administrator may request

alterations to units or common areas

where no alterations were contemplated.

If the request is reasonable in the context

of the individual's disability, the owner

must address the need through either

reasonable accommodations or structural

modifications unless it constitutes an

undue financial and/or administrative

burden.

iv. Existing housing must meet the "program

access" standard, and comply with the

transition plan requirements and

deadlines described in 24 C.F.R. 8.24.

In choosing among available methods

for meeting "program access," priority

must be given to methods that offer

programs and services in the most

integrated setting possible.  It is not

required that each existing facility be

accessible if other methods are effective

(i.e, when the property is viewed in its

entirety, it must be readily accessible to

and usable by individuals with

disabilities).  24 C.F.R. 8.21(c) and

8.24(a) and (b).

c. Special Programs.

i. Homeownership programs.  24 C.F.R. 8.29.

(1) Units must be made accessible if the

expected occupant's disability so

requires;

(2) The buyer may be permitted to

depart from applicable

accessibility standards to

accommodate his/her disability;

(3) Costs for making the home comply

with accessibility standards

(UFAS) may be included in the

mortgage amount;

(4) Costs above the limit may be passed

on to the buyer.

ii. Rental rehabilitation programs - each grantee

or state recipient must give priority to

the selection of projects that will result

in accessible dwelling units.  24 C.F.R.

8.30.

iii. Historic properties - accessibility need not be

provided if alterations would

substantially impair the significant

historic features of the property or result

in undue financial and administrative

burdens.  24 C.F.R. 8.31.

iv. Housing certificate/voucher programs.  24

C.F.R. 8.28.  Compare 24 C.F.R.

92.209.

(1) The recipient must insure that the

notice of availability of housing

assistance reaches individuals

with disabilities;

(2) Owners having accessible units

should be actively encouraged to

participate;

(3) When considering requests for

extensions from individuals with

disabilities, grantees should take

into account the special problems

associated with locating an

accessible unit;

(4) Exceptions to the fair market rents

may be necessary to allow

Section 8 certificate holders to

rent accessible units;

(5) Grantees must enter into HUD-

approved contracts with

participating owners that include

assurances of non-discrimination

on the basis of disability.

4. Transportation.

a. DOJ suspended the coordinating prohibiting

disability discrimination in transportation

programs and activities.  46 FR 40687-01 (Aug.

11, 1981).

b. Current Dep't of Transportation regulations require,

among other things:

i. Compliance with ADA Title II transportation

regulations.  49 C.F.R. 27.19;

ii. Accessible airport facilities, 49 C.F.R.

27.71, aircraft boarding assistance by

airport personnel and equipment, 49

C.F.R. 27.72, and appropriate actions

with regard to service animals, Guidance

Concerning Service Animals in Air

Transportation, 61 FR 56409, 56420

(11/1/96); and

iii. Accessible highway facilities such as rest

areas, curb cuts, and pedestrian

walkways.  49 C.F.R. 27.75.

5. Enforcement of 504 rights.

a. Administrative enforcement.

i. Each agency is responsible for enforcing its

own regulations.

ii. Administrative complaints must be filed

within 180 days of the action

complained of.  See 28 C.F.R.

42.107(b) (Title VI regulations).

iii. Other information on how to file 504

complaints with the appropriate agency

may be available from the Disability

Rights Section, Civil Rights Division,

U.S. Department of Justice, P.O. Box

66738, Washington, D.C. 20035-6738,

(800) 514-0301 (voice), (800) 514-0383

(TTY), info at

<http://www.usdoj.gov/crt/ada/adahom1

.htm>.

iv. Special rules apply in employment cases

against federal agencies.

v. Administrative remedies can include

termination of Federal financial

assistance, 29 U.S.C. 794a, for the

particular program or part thereof that is

not in compliance, 28 C.F.R. 42.108(c).

b. Section 504 may also be enforced through private

lawsuits.  Barnes v. Gorman, ___ U.S. ___, 122

S.Ct. 2097, 2100 (2002).

i. A common formulation of the elements of a

case involving discrimination in services

under 504, as described in Lesley v.

Chie, 250 F.3d 47, 53 (1st Cir. 2001),

might include proof that the plaintiff:

(1) has a disability;

(2) sought services from a federally

funded entity;

(3) was "otherwise qualified" to receive

those services; and

(4) was denied those services "solely by

reason of her ... disability."

ii. A common formulation of the elements of an

employment discrimination case under

504, as described in Chandler v. City of

Dallas, 2 F.3d 1385, 1390 (5th Cir.

1993), includes proof that the plaintiff:

(1) has a disability;

(2) was otherwise qualified to perform

the position in question;

(3) worked for a "program or activity"

that received federal financial

assistance;

(4) was adversely treated solely because

of his handicap.

iii. Statute of limitations

(1) There is no express statute of

limitation in 504, so the most

analogous state law statute of

limitations applies, typically the

statute of limitations for personal

injury claims.  E.g., Hickey v.

Irving Independent School Dist.,

976 F.2d 980, 982-983 (5th Cir.

1992) (Texas two-year personal

injury statute applied).

(2) State tolling rules (excusing delays

beyond the limitations period)

are also applicable.  Daviton v.

Columbia/HCA Healthcare

Corp., 241 F.3d 1131 (9th Cir.

2001) (involving ADA Title III

and 504 claims); Harris v.

Hegmann, 198 F.3d 153, 156-

157 (5th Cir. 1999) (1983 case);

Wagner v. Texas A & M

University, 939 F.Supp. 1297,

1316-1317 (S.D.Tex. 1996)

(similar).

c. Intent is not necessary to state a claim under 504,

Washington v. Indiana High School Athletic

Ass'n, Inc., 181 F.3d 840, 847 (7th Cir.), cert.

denied, 528 U.S. 1046 (1999), and

discrimination may be established by evidence

that:

i. The defendant intentionally acted on the basis

of the disability;

ii. The defendant refused to provide a

reasonable modification; or

iii. The defendant's rule disproportionally

impacts disabled people.

d. Exhaustion of administrative remedies.

i. It is generally not necessary to file a

complaint with a Federal agency or to

receive a "right-to-sue" letter before

going to court.  See, e.g., Freed v.

Consolidated Rail Corp., 201 F.3d 188

(3d Cir. 2000); Smith v. Barton, 914

F.2d 1330, 1338 (9th Cir. 1990);

Camenisch v. University of Texas, 616

F.2d 127 (5th Cir. 1980), vacated on

other grounds, 451 U.S. 390 (1981).

See also Education & Labor report at 98;

S. Rep. No. 116, 101st Cong., 1st Sess.,

at 57-58 (1989).

ii. Some exceptions exist:

(1) Employment claims against federal

agencies.  See 7(h)(i)(3) above,

and 16(b)(ii) below.

(2) The Prison Litigation Reform Act

requires administrative

exhaustion of certain claims

against prisons.  See, e.g., Hicks

v. Monteiro, 2002 WL 654086

(N.D.Cal. Apr. 11, 2002).

(3) According to some courts,

exhaustion of due process rights

under IDEA must be completed

prior to suing public schools.

See, e.g., Polera v. Board of

Educ. of Newburgh Enlarged

City School Dist., 288 F.3d 478

(2d Cir. 2002).

(4) According to some courts,

administrative remedies must be

exhausted in cases against the

federal government.  See, e.g.,

Poynter v. U.S., 55 F.Supp.2d

558, 563 (W.D.La. 1999).

6. Remedies.

a. Generally, 504 expressly provides the same

remedies as Title VI of the Civil Rights Act of

1964.  29 U.S.C. 794a(a)(2); Barnes v.

Gorman, ___ U.S. ___, 122 S.Ct. 2097, 2100

(2002).

b. Actual damages

i. In Franklin v. Gwinnett County Public

Schools, 503 U.S. 60, 66 (1992), the

Supreme Court held that, where a private

right of action exists, "any appropriate

relief" is available under federal statutes

(specifically Title IX), expressly

including compensatory damages. Since

Title IX, like 504, adopts the remedies

of Title VI, the applicability of Franklin

to 504 cases is clear.  Compare Barnes

v. Gorman, ___ U.S. ___, 122 S.Ct.

2097 (2002).

ii. The great majority of 504 cases since

Franklin to decide the issue have held

that compensatory damages are

available.  See, e.g., Moreno v.

Consolidated Rail Corp., 99 F.3d 782,

789 (6th Cir. 1996) (en banc) (every

circuit that has reached issue after

Franklin has held that compensatory

damages are available under 504);

Kilroy v. Husson College, 959 F.Supp.

22 (D.Maine 1997); DeLeo v. City of

Stamford, 919 F.Supp. 70 (D.Conn.

1995).  See also 145 ALR Fed. 353.

iii. Most courts require proof of intentional

conduct.  See, e.g., Duvall v. County of

Kitsap, 260 F.3d 1124, 1138-1139 (9th

Cir. 2001) (using deliberate indifference

standard); Powers v. MJB Acquisition

Corp., 184 F.3d 1147, 1153 (10th Cir.

1999) (same); Bartlett v. New York State

Board of Law Examiners, 156 F.3d 321

(2d Cir. 1998) (same), vacated on other

grounds, 527 U.S. 1031 (1999); Bravin

v. Mount Sinai Med. Center, 58

F.Supp.2d 269, 273-274 (S.D.N.Y.

1999).  Compare Ferguson v. City of

Phoenix, 157 F.3d 668 (9th Cir. 1998)

(finding no evidence of intent in part

because of lack of notice to defendant,

and its diligent efforts to remedy

problems once it was notified); Schultz

v. YMCA, 139 F.3d 286 (1st Cir. 1998)

(YMCA is not automatically immune

simply because its standards were

adopted in good faith or based on

widespread assumptions, but court

rejects awarding damages for emotional

distress in a debatable case on the merits

with no animus or other concrete

impact).

iv. Note that none of the above are employment

cases, which have their own formulas for

proving "intentional" conduct.  See, e.g.,

Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 142-143 (2000)

(ADEA case describing "pretext"

method of proving intentional

discrimination).

v. While there are caps on the damages

recoverable in employment cases

brought under 501, there are no caps on

damages in cases under 504.  42 U.S.C.

1981a(a)(2); Roberts v. Progressive

Independence, Inc., 183 F.3d 1215,

1223-1224 (10th Cir. 1999).

vi. States' generally do not have immunity from

claims for money damages under 504.

(1) The vast majority of courts to

consider the issue have ruled that

504, as Spending Clause

legislation conditioning receipt

of federal funds on a waiver of

immunity, is constitutional. See,

e.g., Robinson v. State of Kansas,

___ F.3d ___, 2002 WL

1462856*3 (10th Cir. 2002);

Carten v. Kent State University,

282 F.3d 391, 398 (6th Cir. 2002);

Douglas v. California Dept. of

Youth Authority, 271 F.3d 812,

819-821 (9th Cir. 2001) (and

cases cited);  Bowers v. National

Collegiate Athletic Ass'n, 171 F.

Supp.2d 389, 408 (D.N.J. 2001),

appeal pending;  Frederick L. v.

Dep't of Pub. Welfare, 157

F. Supp.2d 509, 523 (E.D. Pa.

2001); Lieberman v. Delaware,

2001 WL 1000936, at *5-6

(D.Del. Aug. 30, 2001).  See also

Kvorjak v. Maine, 259 F.3d 48,

50 n.1 (1st Cir. 2001) (stating that

employment claim could proceed

under 504 after Garrett, though

without analysis). Compare

Garrett v. University of Alabama

at Birmingham Bd. of Trustees,

276 F.3d 1227, 1228-1229 (11th

Cir. 2001) (remanded for

consideration of the issue).

(2) Compare also Garcia v. SUNY

Health Sciences Center of

Brooklyn, 280 F.3d 98, 113-115

(2d Cir.2001) (no knowing

waiver because at the time the

state accepted funds [pre-

Seminole decision in 1995], Title

II was reasonably understood to

abrogate state's sovereign

immunity under Commerce

Clause authority, so a state

accepting federal funds

conditioned on a waiver of

immunity from 504 claims,

which proscribed the same

conduct, could not have

understood that it was actually

giving up anything).

(3) The Fifth Circuit has not yet decided

the issue, Reickenbacker v.

Foster, 274 F.3d 974, 984 (5th

Cir. 2001) (issue not preserved),

but the issue is currently pending

before the Court in several cases.

See, e.g., Miller v. Texas Tech

University Health Sciences Ctr.,

No. 02-10190 (5th Cir. 2002)

(appeal pending); August v.

Mitchell, 2002 WL 188406 (E.D.

La. 2002) (appeal pending, No.

02-30369); Johnson v. State of

Louisiana, 2002 WL 83645, at

*5 (E.D. La. 2002) (appeal

pending, No. 02-30318).

vii. Damages are not available, however, against

the federal government or its agencies

under 504, because the Rehabilitation

Act does not waive the federal

government's sovereign immunity from

damage claims.  Lane v. Pena, 518 U.S.

187 (1996).

c. No punitive damages.  Barnes v. Gorman, ___ U.S.

___, 122 S.Ct. 2097 (2002).

d. Injunctive relief.  E.g., Layton v. Elder, 143 F.3d

469, 472 (8th Cir. 1998) (trial court abused its

discretion by not ordering mandatory injunctive

relief after finding violations of the ADA and

the Rehabilitation Act at the county courthouse;

once success on the merits is shown, three

factors should be considered in determining

whether injunctive relief is appropriate: the

threat of irreparable harm to the plaintiff, the

harm to be suffered by the defendant if the

injunction is granted, and the public interest at

stake); Chalk v. United States Dist. Court Cent.

Dist. of California, 840 F.2d 701 (9th Cir. 1988);

Jackson v. State of Maine, 544 A.2d 291, 299

(Me. 1988).

e. In employment cases:

i. Back pay.  Consolidated Rail Corp. v.

Darrone, 465 U.S. 624, 630 (1984).

ii. Reinstatement.  Chalk v. United States Dist.

Court Cent. Dist. of California, 840 F.2d

701 (9th Cir. 1988).

iii. Front pay.  Arline v. School Board of Nassau

County, 692 F.Supp. 1286 (M.D. Fla.

1988) (opinion on remand).

f. Attorneys fees

i. Available to prevailing party.  29 U.S.C.

794a(b).

ii. Supreme Court has restricted "catalyst"

attorneys fees, purportedly based on

Congressional intent.  Buckhannon Bd.

& Care Home, Inc. v. W. Va. Dep't of

Health & Human Res., 532 U.S. 598

(2001).

7. Some other parts of the Rehabilitation Act.

a. Title I

i. Title I of the Rehabilitation Act authorizes

grants to assist states in helping

handicapped individuals prepare for and

engage in gainful employment. 29

U.S.C. 720(a).

ii. Title I requires states that wish to obtain

federal funds to submit a plan for

vocational rehabilitation (VR) services

that provides, at a minimum, for the

specified VR services listed in 29 U.S.C.

721(a)(8).

iii. Some courts have held that Title I VR clients

are entitled to bring claims under 42

U.S.C. 1983 to ensure compliance with

these federal requirements, especially in

light of the fact that there is no private

right of action under Title I.  See, e.g.,

Doe v. Pfrommer, 148 F.3d 73, 78 (2d

Cir. 1998); Mallett v. Wisconsin Div. of

Vocational Rehabilitation, 130 F.3d

1245 (7th Cir. 1997).

b. 501

i. Section 501 requires affirmative action and

nondiscrimination in employment by

Federal agencies of the executive

branch.

ii. Exhaustion of administrative remedies

required, through an EEO/EEOC

process.  29 C.F.R. Part 1614.

Alternatively, a federal employee can

got through the Merit System Protection

Board (MSPB), 5 U.S.C. 7701 et seq.;

5 C.F.R. Part 1201, or a collectively

bargained grievance and arbitration

process.

c. 503

i. Section 503 requires affirmative action and

prohibits employment discrimination by

Federal government contractors and

subcontractors with contracts of more

than $10,000.

ii. Most of the cases interpreting 503 hold that

there is no private right of action under

it.  See, e.g., Ortega v. Rhone-Poulenc of

Wyoming, L.P., 842 F.Supp. 488

(D.Wyo. 1994).

iii. 503 is enforced by Office of Federal

Contract Compliance Programs, U.S.

Department of Labor, 200 Constitution

Avenue, NW, Room C-3325

Washington, D.C. 20210, (202) 693-

0106 (voice/relay), info at

<http://www.dol.gov/dol/esa/public/ofcp

_org.htm>.

d. 508

i. Applies to electronic and information

technology developed, maintained,

procured, or used by the Federal

government

ii. Requires Federal electronic and information

technology to be accessible to people

with disabilities, including employees

and members of the public.

iii. For more information on 508, contact:

(a) U.S. General Services

Administration, Center

for IT Accommodation

(CITA), 1800 F Street,

N.W., Room 1234,

MC:MKC, Washington,

DC 20405-0001, (202)

501-4906 (voice), (202)

501-2010 (TTY), info at

<http://www.itpolicy.gsa.

gov/cita>.

(b) U.S. Architectural and

Transportation, Barriers

Compliance Board, 1331

F Street, N.W. Suite

1000, Washington, DC

20004-1111, 800-872-

2253 (voice), 800-993-

2822 (TTY), info at

<http://www.access-

board.gov>.

Brian East

July 31, 2002