[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Proposed Rules]
[Pages 6388-6413]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01057]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 42

[Docket No. OAG 154; AG Order No. 3818-2017]
RIN 1105-AB50


Amendment of Regulations Implementing Section 504 of the 
Rehabilitation Act of 1973--Nondiscrimination Based on Disability in 
Federally Assisted Programs or Activities

AGENCY: Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice is issuing this notice of proposed 
rulemaking to revise its regulation implementing section 504 of the 
Rehabilitation Act of 1973, as applicable to programs and activities 
receiving financial assistance from the Department, in order to 
incorporate amendments to the statute, including the changes in the 
meaning and interpretation of the applicable definition of disability 
required by the ADA Amendments Act of 2008; incorporate requirements 
stemming from judicial decisions; update accessibility standards 
applicable to new construction and alteration of buildings and 
facilities; update certain provisions to promote consistency with 
comparable provisions implementing title II of the Americans with 
Disabilities Act; and make other non-substantive clarifying edits, 
including updating outdated terminology and references that currently 
exist in 28 CFR part 42, such as changing the word ``handicapped'' and 
similar variations of that word to language referencing ``individuals 
with disabilities,'' modifying the order of the regulatory provisions 
to group like provisions together, and adding some headings to make the 
regulation more user-friendly.

DATES: All comments must be submitted on or before March 20, 2017.

ADDRESSES: You may submit comments, identified by RIN 1105-AB50, by any 
one of the following methods:
     Federal eRulemaking portal: http://www.regulations.gov. 
Follow the Web site's instructions for submitting comments.
     Regular U.S. mail: Disability Rights Section, Civil Rights 
Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-
0885.
     Overnight, courier, or hand delivery: Disability Rights 
Section, Civil Rights Division, U.S. Department of Justice, 1425 New 
York Avenue NW., Suite 4055, Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Rebecca Bond, Chief, Disability Rights 
Section, Civil Rights Division, U.S. Department of Justice, at (202) 
307-0663 (voice or TTY) (not a toll-free number); or Michael Alston, 
Director, Office for Civil Rights, Office of Justice Programs, U.S. 
Department of Justice, at (202) 307-0690 (not a toll-free number). 
Information may also be obtained from the Department's toll-free ADA 
Information Line at (800) 514-0301 (voice), or (800) 514-0383 (TTY).
    You may obtain copies of this notice of proposed rulemaking (NPRM) 
in an alternative format by calling the ADA Information Line at (800) 
514-0301 (voice), or (800) 514-0383 (TTY). This NPRM is also available 
on the ADA Home Page at http://www.ada.gov.

SUPPLEMENTARY INFORMATION:

Electronic Submission of Comments and Posting of Public Comments

    You may submit electronic comments to http://www.regulations.gov. 
When submitting comments electronically, you must include ``RIN 1105-
AB50'' in the subject field, and you must include your full name and 
address. Electronic files should avoid the use of special characters or 
any form of encryption and should be free of any defects or viruses.
    Please note that all comments received are considered part of the

[[Page 6389]]

public record and made available for public inspection online at http://www.regulations.gov. Submission postings will include any personal 
identifying information (such as your name, address, etc.) included in 
the text of your comment. If you include personal identifying 
information (such as your name, address, etc.) in the text of your 
comment but do not want it to be posted online, you must include the 
phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of 
your comment. You must also include all the personal identifying 
information you want redacted along with this phrase. Similarly, if you 
submit confidential business information as part of your comment but do 
not want it to be posted online, you must include the phrase 
``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of your 
comment. You must also prominently identify confidential business 
information to be redacted within the comment. If a comment has so much 
confidential business information that it cannot be effectively 
redacted, all or part of that comment may not be posted on http://www.regulations.gov.

I. Executive Summary

Purpose

    The Department of Justice (Department) is issuing this rule in 
order to revise and update its regulation implementing section 504 of 
the Rehabilitation Act of 1973 (section 504) as applicable to programs 
and activities receiving financial assistance from the Department. 
Section 504 prohibits discrimination on the basis of disability in 
federally conducted and assisted programs or activities. The Department 
implements the requirements of section 504 for federally assisted 
programs through its regulation at 28 CFR part 42, subpart G (federally 
assisted regulation).

Major Provisions

    The major provisions of this proposed rule can be summarized as 
follows.
    First, the NPRM proposes to revise the regulatory text to 
incorporate a range of statutory amendments to the Rehabilitation Act, 
including the following: (1) Changes in the meaning and interpretation 
of the definition of ``disability'' required by the ADA Amendments Act 
of 2008, which also amended section 504's definition of ``disability;'' 
(2) the addition of definitions of ``drugs'' and ``illegal use of 
drugs'' and the exclusion from coverage of an individual who is 
currently engaging in the illegal use of drugs, all of which are 
definitions used in the ADA; (3) the adoption of ``person first'' 
language, such as changing the term ``handicapped person'' to 
``individual with a disability''; and (4) the application of the ADA 
title I standards to determinations of employment discrimination under 
section 504.
    Second, the proposed regulation incorporates into the regulatory 
text existing requirements, which stem from longstanding Supreme Court 
decisions interpreting section 504, by adding provisions setting forth 
the ``direct threat'' defense and the obligation to provide reasonable 
accommodations.
    Third, the proposed rule updates the section 504 accessibility 
standards applicable to new construction and alteration of buildings 
and facilities from the Uniform Federal Accessibility Standards to the 
2010 ADA Standards for Accessible Design.
    Fourth, the proposed rule revises the language of certain 
provisions, including the general nondiscrimination prohibitions and 
the requirement to provide auxiliary aids and services, in order to 
promote consistency with comparable provisions implementing title II of 
the ADA. The rule also eliminates the exception for provision of 
auxiliary aids and services for recipients that have fewer than fifteen 
employees.
    Fifth, the proposed rule revises the regulation's compliance 
procedures: (1) To provide alternative remedies for the Department in 
cases where a recipient of Federal assistance fails to provide 
compliance information, such as compliance reports or information 
sought by beneficiaries; (2) to provide for the protection of 
confidential information without barring the responsible Department 
official or designee from accessing information necessary for 
evaluating or seeking to enforce compliance with the federally assisted 
regulation; and (3) to direct the filing of complaints alleging 
violations of section 504 by recipients of financial assistance from 
the Department with the Office of Justice Programs.

Summary of Benefits and Costs

    This rulemaking is not considered economically significant under 
Executive Order 12866. Additionally, the Department is certifying that 
the rule will not have a significant economic impact on a substantial 
number of small entities in accordance with the Regulatory Flexibility 
Act, as amended.

II. Background

A. Section 504 Legislative and Regulatory History

    The Department of Justice (Department) implements the requirements 
of section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 
794 (section 504), which prohibits discrimination on the basis of 
disability in federally conducted and assisted programs or activities, 
through its regulations at 28 CFR part 39, applicable to programs and 
activities conducted by the Department (federally conducted 
regulation), and 28 CFR part 42, subpart G, applicable to recipients to 
whom the Department extends Federal financial assistance (federally 
assisted regulation).
    On June 3, 1980, the Department published its section 504 federally 
assisted regulation. See 28 CFR part 42, subpart G, 45 FR 37620. Since 
then, Congress has amended certain provisions of the Rehabilitation Act 
of 1973, Public Law 93-112 (Sept. 26, 1973) (Rehabilitation Act), 
necessitating revisions to the Department's section 504 federally 
assisted regulation.\1\ The Americans with Disabilities Act of 1990, 
Public Law 101-336 (July 26, 1990) (ADA), revised the Rehabilitation 
Act to include definitions of the terms ``drugs'' and ``illegal use of 
drugs,'' explaining that these terms were to be interpreted consistent 
with the principles of the Controlled Substances Act, 21 U.S.C. 801 et 
seq. See 29 U.S.C. 705(10). The ADA also amended the Rehabilitation Act 
to expressly exclude from coverage an individual who is currently 
engaging in the illegal use of drugs. See 29 U.S.C. 705(10), (20)(C). 
The Rehabilitation Act Amendments of 1992, Public Law 102-569 (Oct. 29, 
1992) (the 1992 Amendments), adopted the use of ``person first'' 
language by changing the term ``handicapped person'' to ``individual 
with a disability'' and provided that the standards applied under title 
I of the ADA shall apply to determinations of employment discrimination 
under section 504. More recently, the ADA Amendments Act of 2008 (ADA 
Amendments Act), Public Law 110-325 (Sept. 25, 2008), revised the 
meaning and interpretation of the definition of ``disability'' under 
section 504 to align them with the ADA. In addition, there have been 
significant

[[Page 6390]]

Supreme Court decisions interpreting section 504 requirements relating 
to the principles of ``direct threat'' and reasonable accommodation. 
See, e.g., Sch. Bd. of Nassau Cty. v. Arline, 480 U.S. 273 (1987); 
Alexander v. Choate, 469 U.S. 287 (1985); Se. Cmty. Coll. v. Davis, 442 
U.S. 397 (1979). Although Arline, Choate, and Davis have been applied 
by lower courts since their issuance, the Department's existing section 
504 federally assisted regulation does not clearly enunciate the 
Court's holdings. The Department has not amended its section 504 
federally assisted regulation since its original publication other than 
through the adoption in 2003 of certain amendments to implement the 
provisions of the Civil Rights Restoration Act of 1987. See 68 FR 51334 
(Aug. 26, 2003); Public Law 100-259 (Mar. 22, 1988). The revisions to 
this regulation are part of the Department's retrospective plan under 
Executive Order 13563, completed in 2011.
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    \1\ See, e.g., Public Law 99-506 (Oct. 21, 1986); Public Law 
100-259 (Mar. 22, 1988); Public Law 100-630 (Nov. 7, 1988); Public 
Law 101-336 (July 26, 1990); Public Law 102-569 (Oct. 29, 1992); 
Public Law 103-382 (Oct. 20, 1994); Public Law 105-220 (Aug. 7, 
1998); Public Law 107-110 (Jan. 8, 2002); Public Law 110-325 (Sept. 
25, 2008); Public Law 113-128 (July 22, 2014).
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B. Relationship Between Section 504 and the ADA

    Title II of the ADA prohibits discrimination on the basis of 
disability by public entities (i.e., State and local governments and 
their agencies) and is modeled on section 504. 42 U.S.C. 12132 (``[N]o 
qualified individual with a disability shall, by reason of such 
disability, be excluded from participation in or be denied the benefits 
of services, programs, or activities of a public entity, or be 
subjected to discrimination by any such entity.''). A significant 
amount of financial assistance from the Department goes to entities 
that are also covered by title II of the ADA. In addition, the 
Department provides financial assistance to some entities covered by 
title III of the ADA.\2\ Title II and section 504 are generally 
understood to impose similar requirements, given the similar language 
employed in the ADA and the Rehabilitation Act and the congressional 
directive that the ADA be construed to grant at least as much 
protection as provided by the regulations implementing the 
Rehabilitation Act. See, e.g., 42 U.S.C. 12201(a).\3\ Many of the 
changes that the Department is proposing are intended to conform the 
language of specific provisions in the section 504 regulation to 
corresponding provisions in the title II regulation, many of which were 
updated in 2010. The Department believes it is in the interest of the 
recipients who have to apply the requirements of both section 504 and 
title II that, where appropriate, the comparable requirements in the 
corresponding regulations for both statutes are expressed in comparable 
language.
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    \2\ Title III prohibits discrimination on the basis of 
disability by: (1) Public accommodations (i.e., private entities 
that own, operate, lease, or lease to places of public 
accommodation); (2) newly constructed and altered commercial 
facilities; and (3) private entities that offer certain examinations 
and courses related to educational and occupational certification. 
Recipients of Federal assistance that are also title III entities 
must comply with both the section 504 and the title III regulations.
    \3\ The 1992 Amendments revised the Rehabilitation Act's 
findings, purpose, and policy provisions to incorporate language 
acknowledging the discriminatory barriers faced by persons with 
disabilities, and recognizing that persons with disabilities have 
the right to ``enjoy full inclusion and integration in the economic, 
political, social, cultural and educational mainstream of American 
society.'' 29 U.S.C. 701(a)(3) as amended. The legislative history 
to the 1992 Amendments states ``[t]he statement of purpose and 
policy is a reaffirmation of the precepts of the Americans with 
Disabilities Act, which has been referred to as the 20th century 
emancipation proclamation for individuals with disabilities. It is 
the Committee's intent that these principles guide the policies, 
practices, and procedures developed under all titles of the 
[Rehabilitation] Act.'' S. Rep. 102-357 at 14 (Aug. 3, 1992); H.R. 
Rep. 102-822 at 81 (Aug. 10, 1992).
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II. Section-by-Section Analysis

    This section provides a detailed description of the Department's 
proposed changes to the section 504 federally assisted regulation and 
the reasoning behind the proposals. If the Department is not proposing 
a change to a regulation section, the unchanged section is not 
discussed. The Department is proposing to modify the order and names of 
some of the regulatory provisions to group like provisions together and 
make the regulation more user-friendly. This section-by-section 
analysis follows the revised order of the regulatory text.

General

Section 42.502--Application, Broad Coverage, and Relationship to Other 
Laws
    The Department proposes to revise existing Sec.  42.502 to add 
clarifying language to the discussion of the application of this 
subpart, to add a new paragraph (b), which addresses the broad scope of 
coverage required by the ADA Amendments Act and the section 504 
federally assisted regulation, and to move and revise the discussion of 
the relationship to other laws from existing Sec.  42.505(h) to a new 
paragraph (c) in this section.
Section 42.502(a)--Application
    The Department proposes to add a sentence clarifying that this 
subpart does not apply to programs or activities conducted by the 
Department. The Department's section 504 federally conducted regulation 
is found at 28 CFR part 39.
Section 42.502(b)--Broad Scope of Coverage
    The ADA Amendments Act was signed into law on September 25, 2008, 
and became effective on January 1, 2009. Congress enacted the ADA 
Amendments Act in order to ensure that the definition of disability is 
broadly construed and applied without extensive analysis, and to 
supersede Supreme Court decisions that had too narrowly interpreted the 
ADA's definition of disability.\4\ The ADA Amendments Act not only 
amended the meaning and interpretation of the definition of disability 
applicable to the ADA, it also amended the Rehabilitation Act of 1973 
to require similar changes to the meaning and interpretation of section 
504's definition of disability at 29 U.S.C. 705(20)(B).
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    \4\ Congress specifically found that the holdings of the Supreme 
Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 
U.S. 184 (2002), and Sutton v. United Air Lines, Inc., 527 U.S. 471 
(1999), narrowed the broad scope of protection intended to be 
afforded by the ADA. ADA Amendments Act, sec. 2. Congress also 
stated that one of the purposes of the ADA Amendments Act is ``to 
convey that it is the intent of Congress that the primary object of 
attention in cases brought under the ADA should be whether entities 
covered under the ADA have complied with their obligations * * *.'' 
Id., sec. 2(b)(5).
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    The ADA Amendments Act does not alter the basic elements of the 
definition of disability in the ADA and section 504, but it 
significantly clarifies how the term ``disability'' is to be 
interpreted and adds important rules of construction to inform that 
interpretation. Specifically, Congress directed that the definition of 
disability shall be construed broadly and that the determination of 
whether an individual has a disability should not demand extensive 
analysis. ADA Amendments Act, sec. 2(b)(5), 4(a).
    Congress also authorized the Equal Employment Opportunity 
Commission (EEOC) and the Department to issue regulations implementing 
the ADA Amendments Act changes, including rules of construction. See 
id., sec. 6(a)(2); 42 U.S.C. 12205a. The Department's ADA Amendments 
Act regulation, along with the EEOC's title I ADA Amendments Act 
regulation, include introductory sections describing the requirement to 
construe the definition of disability broadly and sets forth rules of 
construction consistent with that goal. See 28 CFR 35.101(b) and 29 CFR 
1630.1(c)(4).\5\ The Department's

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proposed ``scope of coverage'' provision at Sec.  42.502(b) is modeled 
on the ADA's broad construction provision and provides that, consistent 
with the ADA Amendments Act's purpose of reinstating a broad scope of 
protection under both the ADA and section 504, the definition of 
``disability'' in the pertinent subpart ``shall be construed broadly in 
favor of expansive coverage to the maximum extent permitted by the 
terms of section 504.'' The new provision further provides that the 
primary object of attention in cases brought under that subpart 
``should be whether entities covered under section 504 have complied 
with their obligations and whether discrimination has occurred, not 
whether the individual meets the definition of `disability.' '' The 
question of whether an individual meets the definition of 
``disability'' under this subpart should not demand extensive analysis.
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    \5\ The Department's ADA Amendments Act regulation followed the 
EEOC approach in incorporating a broad construction provision and 
rules of construction to embody the requirements of the ADA 
Amendments Act. See 81 FR 53203 (Aug. 11, 2016).
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Section 42.502(c)--Relationship to Other Law
    The Department is proposing to move its provision addressing the 
relationship of section 504 to State and local laws that provide lesser 
protections for persons with disabilities from its location in the 
current regulation at Sec.  42.505(h) to Sec.  42.502(c)(1) in the 
revised regulation. The Department is proposing a minor edit to this 
provision by adding ``obviated by or otherwise'' before ``affected'' so 
that the provision would read: ``The obligation to comply with this 
subpart is not obviated by or otherwise affected by the existence of 
any State or local law or other requirement that, on the basis of 
disability, imposes prohibitions or limits upon the eligibility of 
qualified individuals with disabilities to receive services or to 
practice any occupation or profession.''
    In addition, the Department is proposing to add a new provision at 
Sec.  42.502(c)(2) that addresses the relationship between section 504 
and other Federal, State, and local laws that provide greater 
protections to persons with disabilities. In the ADA, Congress 
expressly provided that nothing in the ADA invalidated or limited the 
remedies, rights, and procedures of any Federal law, or State or local 
law that provides greater or equal protection for the rights of 
individuals with disabilities. See 42 U.S.C. 12201(b). The Department 
incorporated this principle into its ADA title II and title III 
regulations at 28 CFR 35.103(b) and 28 CFR 36.103(c), respectively. The 
Department believes that these principles are equally applicable to 
section 504. Proposed Sec.  42.502(c)(2) incorporates these principles 
and provides that ``[t]his subpart does not invalidate or limit the 
remedies, rights, and procedures of any other Federal law, or State or 
local law (including State common law), that provide greater or equal 
protection for the rights of individuals with disabilities or 
individuals associated with them.''
Section 42.503--Definitions
    The Department proposes revising certain definitions to make them 
consistent with the language used to define corresponding terms in the 
Department's ADA regulations; deleting terminology that is no longer 
necessary or has become obsolete; revising or adding certain terms to 
incorporate statutory changes to the Rehabilitation Act; adding other 
definitions for clarity; and making minor technical edits to existing 
definitions. Also, for ease of reference, the Department proposes 
moving the ``definitions'' section, currently codified at Sec.  42.540, 
to the beginning of the subpart at Sec.  42.503.
    First, in order to ensure consistency of terminology between 
section 504 and the ADA, the Department is proposing to add definitions 
of the following terms from the Department's ADA title II regulation at 
28 CFR 35.104: ``2004 ADAAG,'' ``2010 Standards,'' ``Auxiliary aids and 
services,'' ``Current illegal use of drugs,'' ``Historic preservation 
programs,'' ``Qualified interpreter,'' ``Qualified reader,'' and 
``Video remote interpreting (VRI) service.''
    The Department also proposes to delete several terms from the 
regulation, including ``Alcohol abuse,'' ``Benefit,'' and ``Handicap,'' 
as well as obsolete references to Departmental components that no 
longer exist within the Department. First, with respect to ``alcohol 
abuse,'' the Department believes the term is no longer necessary given 
that the definition was only applicable to the regulation's employment 
provisions, and those provisions are being revised to reference the 
requirements in title I of the ADA, in accordance with section 503(b) 
of the 1992 Amendments (codified at 29 U.S.C. 791(f)). Second, the 
Department also proposes to delete the definition of ``benefit'' as 
unnecessary given that the meaning of ``benefit'' is commonly 
understood. Third, the Department proposes to delete the definition of 
``handicap,'' as it is neither necessary nor appropriate following the 
``people first'' language changes from the 1992 Amendments, which use 
the term ``disability.'' And fourth, the Department proposes to delete 
the definitions of ``LEAA,'' ``NIJ,'' ``BJS,'' ``OJARS,'' and 
``OJJDP.'' Some of these offices no longer exist, and to account for 
future changes in organization, the regulation, where appropriate, will 
refer generally to ``grant-making components of the Department.''
    Finally, the Department proposes the following revisions and 
additions to the ``definitions'' section to incorporate statutory 
changes to the Rehabilitation Act and to provide greater clarity and 
consistency of terminology.
``Applicant''
    The Department proposes to add the definition of ``applicant'' to 
the proposed regulation using language consistent with the definition 
in the Department's regulation implementing title VI of the Civil 
Rights Act, at 28 CFR 42.102(h).
``Component''
    The Department proposes to add a definition of ``component'' to the 
proposed regulation. Given the various names for the Department's 
subagencies (e.g., bureaus, agencies, boards, etc.), the Department 
believes that the term ``component'' would provide a simpler and less 
confusing reference.
``Department''
    The Department proposes to revise the definition of ``department'' 
to clarify that the term includes all of the Department's components.
``Direct Threat''
    The Department proposes to add, with respect to non-employment 
services, programs, and activities, a definition of ``direct threat'' 
that is based upon the definition provided in the Department's title II 
regulation at 28 CFR 35.104. The Department also proposes to include, 
for the employment context, an additional paragraph that adopts the 
definition of ``direct threat'' in the EEOC's regulation at 29 CFR 
1630.2(r).
``Disability''
    As previously discussed, the ADA Amendments Act not only amended 
the meaning and interpretation of the definition of ``disability'' 
applicable to the ADA, it also amended the Rehabilitation Act of 1973 
to require similar changes to the meaning and interpretation of the 
definition of ``disability'' at 29 U.S.C. 705(20)(B), applicable to 
section 504. The Department has decided that rather than spelling out 
the meaning and interpretation of the definition of

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disability in this regulation, it will incorporate by reference the 
Department's title II definition of disability found at 28 CFR part 35, 
which has recently undergone revisions to reflect the requirements of 
the ADA Amendments Act. Due to the changes that the ADA Amendments Act 
made to the meaning and interpretation of the definition of disability, 
participants in recipients' programs and activities who, before, may 
not have been determined to have a disability under section 504, may 
now be found to have a disability.
    The Rehabilitation Act and the ADA define ``disability'' as 
including: (1) A physical or mental impairment that substantially 
limits a major life activity; (2) a record of such an impairment; or 
(3) being regarded as having such an impairment. 29 U.S.C. 705(9)(B); 
42 U.S.C. 12102(1). The ADA Amendments Act does not alter these three 
basic elements of the definition of disability, but it does 
significantly clarify how the term ``disability'' is to be interpreted 
and adds important rules of construction to inform that interpretation. 
Congress directed that the definition of disability shall be construed 
broadly and that the determination of whether an individual has a 
disability should not demand extensive analysis. 42 U.S.C. 12102. The 
Department proposes to update its section 504 federally assisted 
regulation to reflect these changes.
``Drug''
    The ADA amended the Rehabilitation Act to include a definition of 
``drug.'' See ADA sec. 512(b) (codified at 29 U.S.C. 705(10)). The 
Department proposes to add that definition to its regulation.
``Facility''
    The Department proposes to revise the existing definition of 
``facility'' to conform more closely to the definition of ``facility'' 
in the Department's title II regulation by including within the 
definition's scope sites, complexes, rolling stock or other 
conveyances.
``Historic Properties''
    The Department proposes to include a definition of ``historic 
properties'' that is substantially similar to that provided in the 
Department's title II regulation, 28 CFR 35.104.
``Illegal Use of Drugs''
    The Department proposes to replace the existing definition of 
``drug abuse'' with a definition that is substantially similar to the 
definition of ``illegal use of drugs'' that was added to the 
Rehabilitation Act by the ADA in 1990. See ADA Sec.  512(b) (codified 
at 29 U.S.C. 705(10)).
``Individual With a Disability''
    The Department proposes to replace the definition of ``handicapped 
person'' with ``individual with a disability,'' consistent with the 
1992 Amendments, which provide ``people first'' language (e.g., 
``individuals with disabilities'') and which define ``individual with a 
disability'' as ``any person who has a disability as defined in 
[section 3 of the ADA].'' See 29 U.S.C. 705(20)(B). Consistent with the 
definition in the Department's ADA title II regulation, the proposed 
definition also clarifies that the term ``individual with a 
disability'' does not include an individual who is currently engaging 
in the illegal use of drugs, when a recipient acts on the basis of such 
use. The proposed definition eliminates references to individuals who 
would not be considered to have a disability for purposes of 
employment, as such references are no longer necessary because the 
regulation now references the EEOC regulation at 29 CFR part 1630 with 
respect to discrimination on the basis of disability in employment.
``Primary Recipient''
    The Department proposes to add a definition of ``primary 
recipient'' to the regulation. The Department proposes to adopt a 
definition that is substantially similar to the definition of ``primary 
recipient'' provided in the Department's regulation implementing title 
VI of the Civil Rights Act, at 28 CFR 42.102(g). The revised regulation 
defines ``primary recipient'' as ``any recipient that is authorized or 
required to extend Federal financial assistance to another recipient.''
``Qualified Individual With a Disability''
    The Department proposes to replace the definition of ``qualified 
handicapped person'' with ``qualified individual with a disability.'' 
With respect to employment, the proposed definition incorporates the 
definition of ``qualified'' as provided in the EEOC regulation at 29 
CFR 1630.2(m), which implements the employment standards of title I of 
the ADA, in accordance with section 503(b) of the 1992 Amendments 
(codified at 29 U.S.C. 791(f)). With respect to programs or activities, 
the proposed definition is substantially similar to the definition of 
``qualified individual with a disability'' from the Department's ADA 
title II regulation, 28 CFR 35.104.
``Subrecipient''
    The Department proposes to add a definition of ``subrecipient'' to 
the proposed regulation. Entities receiving Federal financial 
assistance through a primary recipient also must comply with the 
Department's section 504 federally assisted regulation.

General Nondiscrimination Requirements

Section 42.510--General Prohibitions Against Discrimination
Section 42.510(b)-(f)--Prohibited Discriminatory Actions
    The Department proposes to update and clarify the discriminatory 
actions prohibited under Sec.  42.503 of the Department's current 
regulation. With the exception of the revisions addressed below, the 
Department proposes retaining the same prohibited discriminatory 
actions as in the current regulation but, where applicable, adopting 
the language that is provided in the Department's ADA title II 
regulation for consistency, and reorganizing and re-titling some of the 
provisions, as appropriate. For instance, the provision relating to the 
prohibition on retaliation and intimidation at Sec.  42.503(b)(1)(vii) 
in the current regulation has been moved to a new section at proposed 
Sec.  42.510(k). The Department also proposes to add several regulatory 
provisions that are consistent with provisions in the Department's ADA 
title II regulation and that further illustrate the types of actions 
that are prohibited discrimination under section 504. The Department 
notes that current Sec.  42.503(g) (renumbered as Sec.  42.510(l)) 
states that ``[t]he enumeration of specific forms of prohibited 
discrimination in this subpart is not exhaustive but only 
illustrative.''
    The Department's current regulation at Sec.  42.503(b)(iv) 
prohibits a recipient from denying ``a qualified [person with a 
disability] an equal opportunity to participate in the program or 
activity by providing services to the program.'' This prohibition does 
not clearly explain how a qualified individual with a disability would 
be denied an equal opportunity to participate in a program or activity 
``by providing services'' to the program. The Department is proposing 
to revise this paragraph for clarity but is not changing the meaning. 
The revised paragraph (renumbered as Sec.  42.510(b)(1)(v)) states that 
a recipient may not ``[d]eny a qualified individual with a disability 
an equal opportunity to provide services to the program or activity.'' 
Under this provision, for example, a recipient that uses

[[Page 6393]]

volunteers to provide services may not refuse to allow individuals with 
disabilities to work as volunteers.
    The Department proposes to delete the provision in the Department's 
current regulation at Sec.  42.503(b)(5), which provides that ``[a] 
recipient is prohibited from discriminating on the basis of handicap in 
aid, benefits, or services operating without Federal financial 
assistance where such action would discriminate against the handicapped 
beneficiaries or participants in any program or activity of the 
recipient receiving Federal financial assistance.'' This provision no 
longer appears to be necessary given the expanded definition of 
``program or activity'' provided under the Civil Rights Restoration 
Act, 42 U.S.C. 2000d-4a, which, in the case of assistance to a State or 
local government, includes all the operations of the department or 
agency to which funding is extended.
    The Department proposes to move the requirements in existing Sec.  
42.503(e) and (f), which currently address the recipient's obligation 
to ensure effective communication to applicants, employees and 
beneficiaries, to new Sec.  42.511, which specifically addresses the 
recipient's communication requirements in greater detail, consistent 
with the Department's title II regulation at 28 CFR 35.160, 35.161, and 
35.164. The Department has also conformed the language of these 
provisions to the language of the title II regulation. It notes that 
the definition of ``auxiliary aids'' that is in Sec.  42.503(f) of the 
existing regulation is replaced by the revised definition of 
``auxiliary aids and services'' provided in the renumbered definitional 
section at proposed Sec.  42.503.
Section 42.510(g)--Reasonable Accommodations
    The Department proposes to add a new provision at Sec.  
42.510(g)(1) that affirmatively states the longstanding section 504 
obligation to provide reasonable accommodations by making changes to 
policies, practices, and procedures unless those changes can be shown 
to pose a fundamental alteration to the program or activity or an undue 
financial and administrative burden.\6\ The obligation to modify 
policies, practices, or procedures was first enunciated by the Supreme 
Court in Southeastern Community College v. Davis, 442 U.S. 397 (1979), 
which held that while section 504 prohibits the exclusion of an 
otherwise qualified individual with a disability from participation in 
a federally funded program solely by reason of the individual's 
disability, that person is not protected by section 504 if, in order to 
meet reasonable eligibility standards, the person needs program or 
policy modifications that would fundamentally alter the nature of the 
provider's program. Because the Davis Court analyzed the case in terms 
of the proper interpretation of the statutory term ``otherwise 
qualified,'' agency section 504 regulations promulgated immediately 
after Davis addressed the obligation to provide reasonable 
accommodations outside of the employment arena by defining ``qualified 
handicapped person,'' as one who meets the essential eligibility 
requirements of the program and who can achieve the purpose of the 
program or activity without modifications in the program or activity 
that the agency can demonstrate would result in a fundamental 
alteration in its nature. See, e.g., 28 CFR 39.103 (the Department's 
section 504 federally conducted regulation).
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    \6\ Courts generally have interpreted the obligation to provide 
reasonable accommodations under section 504 consistently with the 
obligation to provide reasonable modifications under title II. See, 
e.g., Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 
144, 151 (2d Cir. 1999) (analyzing reasonable accommodations in the 
same way under the FHA, ADA, and Section 504); Super v. J. D'Amelia 
& Associates, LLC, No. 3:09CV831 SRU, 2010 WL 3926887, at *3 (D. 
Conn. Sept. 30, 2010) (``The relevant portions of the FHA, ADA, and 
Section 504 offer the same guarantee that a covered entity . . . 
must provide reasonable accommodations in order to make the entity's 
benefits and programs accessible to people with disabilities.'').
---------------------------------------------------------------------------

    Subsequently, in Alexander v. Choate, 469 U.S. 287 (1985), which 
addressed a section 504 challenge to a State policy reducing the annual 
number of days of inpatient hospital care covered by the State's 
Medicaid program, the Court implicitly acknowledged that the obligation 
to provide reasonable accommodations could be considered as an 
affirmative obligation, noting, ``the question of who is `otherwise 
qualified' and what actions constitute `discrimination' under the 
section would seem to be two sides of a single coin; the ultimate 
question is the extent to which a grantee is required to make 
reasonable modifications [accommodations] in its programs for the needs 
of the handicapped.'' Id. at 299 n.19.
    Alexander also introduced the concept of undue financial and 
administrative burden as a limitation on the reasonable accommodation 
obligation. In responding to the petitioners' contention that any 
durational limitation on inpatient coverage in a State Medicaid plan is 
a violation of section 504, the court stated: ``It should be obvious 
that the administrative costs of implementing such a regime would be 
well beyond the accommodations that are required under Davis.'' Id. at 
308.
    Over the past decades, in keeping with these Supreme Court 
decisions, Federal courts and Federal agencies have regularly 
acknowledged Federal agencies' affirmative obligation to ensure that 
recipients provide qualified individuals with disabilities reasonable 
accommodations in programs and activities unless the recipient can 
demonstrate that making these accommodations would fundamentally alter 
the program or activity or result in an undue financial and 
administrative burden. However, traditionally, agencies' section 504 
regulations have lacked a specific provision implementing this 
requirement outside of the employment arena.\7\
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    \7\ The principle of ``reasonable accommodation'' is addressed 
in agency section 504 regulations with respect to employment. See, 
e.g., the Department's current section 504 federally assisted 
regulation at 28 CFR 42.511 and U.S. Department of Health and Human 
Services' section 504 federally assisted regulation at 45 CFR 84.12.
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    The Department notes that title I of the ADA also uses the term 
``reasonable accommodation'' to apply to the job application process, 
work environment, or manner or circumstances under which the position 
held or desired is customarily performed, and the ability to enjoy 
equal benefits and privileges of employment. However, the specific ADA 
title I regulatory requirements related to this term should not be 
applied to non-employment related requests for reasonable 
accommodations under section 504, and the Department proposes to 
clarify at proposed Sec.  42.510(g)(3) that with respect to employment, 
the definitions and standards that apply to ``reasonable 
accommodation'' and ``undue hardship'' in the EEOC's regulation 
implementing title I of the ADA apply to this subpart.
    In addition, when Congress enacted the ADA Amendments Act, it 
expressly provided that a covered entity need not provide a reasonable 
modification [or accommodation] to policies, practices, or procedures 
to an individual who meets the definition of disability under the 
``regarded as'' prong. ADA Amendments Act, sec. 6(a)(1). While Congress 
did not specifically apply this provision of the ADA Amendments Act to 
section 504, the Department believes that it is equally appropriate to 
apply this limitation to reasonable accommodations under section 504 
and proposes to adopt this limitation at Sec.  42.510(g)(2) of this 
regulation.

[[Page 6394]]

    Lastly, the Department notes that the necessary reasonable 
accommodations will vary based on the need of the individual and the 
impact of the accommodation on the recipient. Where the recipient 
receives funding from multiple Federal agencies, each Federal agency's 
particular requirements will also impact the types of reasonable 
accommodations that a recipient must provide.
Section 42.510(h)--Prohibition on Surcharges
    It has been a longstanding principle under both section 504 and the 
ADA that recipients or covered entities may not charge affected 
individuals or groups for the cost of measures required to provide an 
individual or group with nondiscriminatory treatment. This principle is 
already set forth in the Department's title II regulation at 28 CFR 
35.130(f), and the Department is proposing to add it to Sec.  42.510(h) 
of the Department's section 504 federally assisted regulation as well.
Section 42.510(i)--Prohibition on Associational Discrimination
    The Department's ADA regulations provide protection for individuals 
associated with individuals with disabilities.\8\ While the 
Rehabilitation Act does not expressly refer to individuals associated 
with individuals with disabilities, it does permit ``any person 
aggrieved by any act or failure to act by any recipient of Federal 
assistance or Federal provider of such assistance'' to bring suit under 
the Rehabilitation Act. 29 U.S.C. 794a(a)(2) (emphasis added). Courts 
have recognized this provision as providing the basis for associational 
standing under the Rehabilitation Act and noted that despite the 
differences in authorizing language under the Rehabilitation Act and 
the ADA, ``[i]t is widely accepted that under both the [Rehabilitation 
Act] and the ADA, non-disabled individuals have standing to bring 
claims when they are injured because of their association with a 
disabled person.'' McCullum v. Orlando Reg'l Healthcare Sys., Inc., 768 
F.3d 1135, 1142 (11th Cir. 2014) (citing cases). Accordingly, the 
Department is proposing to add Sec.  42.510(i), which specifically 
prohibits a recipient from excluding or otherwise denying aid, 
benefits, or services of its programs or activities to an individual 
because of that individual's relationship or association with an 
individual with a known disability.
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    \8\ Titles I and III of the ADA explicitly forbid discrimination 
because of the known disability of an individual with whom the 
individual is known to have a ``relationship or association.'' 42 
U.S.C. 12112(b)(4), 12182(b)(1)(E). Although title II does not have 
corresponding language, the legislative history of the ADA 
demonstrates Congress's intent to include association within the 
scope of discrimination prohibited by title II. The House Committee 
on Education and Labor indicated that title II's prohibitions should 
be ``identical to those set out in the applicable provisions of 
titles I and III.'' H.R. Rep. No. 101-485(II), at 84 (1990), 
reprinted in 1990 U.S.C.C.A.N. 303, 367. The House Report went on to 
indicate that: ``Unlike the other titles in this Act, title II does 
not list all of the forms of discrimination that the title is 
intended to prohibit.* * * [T]he Attorney General [is directed] to 
issue regulations setting forth the forms of discrimination 
prohibited. The Committee intends that the regulations under title 
II incorporate interpretations of the term discrimination set forth 
in titles I and III of the ADA to the extent that they do not 
conflict with the Section 504 regulations.'' H.R. Rep. No. 101-
485(III), at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 475. 
Thus, the Department's regulations under both titles II and III 
prohibit associational discrimination. See 28 CFR 35.130(g) and 28 
CFR 36.205.
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Section 42.510(j)--Eligibility Criteria
    The Department proposes to add a new provision at Sec.  42.510(j) 
that prohibits a recipient from imposing or applying eligibility 
criteria that screen out or tend to screen out an individual with a 
disability or any class of individuals with disabilities from fully and 
equally enjoying any aid, benefit, or service, unless such criteria can 
be shown to be necessary for the provision of the aid, benefit, or 
service being offered. This principle is already set forth in the 
Department's title II regulation at 28 CFR 35.130(b)(8). The 
prohibition of the imposition of ``criteria that `tend to' screen out 
an individual with a disability'' actually had its origins in the 
Department of Health and Human Services' section 504 regulation at 45 
CFR 84.13 (1991), which was cited by the Department in its 1991 title 
II rulemaking. See 28 CFR part 35, app. B, 56 FR 35694, 35705 (July 26, 
1991). Accordingly, the Department believes that it is appropriate to 
add this provision to the general prohibitions against discrimination 
section.
Section 42.511--Communications
    The Department is proposing to reorganize and revise its 
articulation of recipients' longstanding obligation to ensure that 
communications are effectively conveyed to individuals with 
disabilities and to provide appropriate auxiliary aids and services, 
using language that generally conforms with the effective communication 
provisions in the Department's title II regulation at 28 CFR 35.160, 
35.161, and 35.164. Specifically, the Department is proposing to move 
the provisions addressing communication in the section 504 regulation 
from the general nondiscrimination obligations in current Sec.  
42.503(e) and (f), place these revised provisions in a new Sec.  
42.511, and generally conform the language to the title II provisions. 
As mentioned earlier, the Department has revised the definitions 
section of the regulation at proposed Sec.  42.503 to include 
definitions of the terms ``auxiliary aids and services,'' ``qualified 
interpreter,'' ``qualified reader,'' and ``video remote interpreting 
(VRI) service.'' Finally, the Department is proposing to remove the 
limitation on the obligation to provide auxiliary aids for recipients 
with fewer than 15 employees, currently found in Sec.  42.503(f).
Section 42.511(a)--General Obligation
    Proposed Sec.  42.511(a) sets forth the general obligation 
(formerly set forth in Sec.  42.503(e)) that a recipient take 
``appropriate steps to ensure that communications with applicants, 
participants, beneficiaries, members of the public, and companions with 
disabilities are as effective as communications with others.'' This 
general obligation parallels the general communications requirement in 
the ADA title II regulation, at 28 CFR 35.160(a)(1). The Department 
recognizes that since the Department's section 504 federally assisted 
regulation was first issued in 1980, electronic and information 
technology has changed the way that recipients communicate with 
interested persons. Individuals with disabilities--like other members 
of the public--should be able to equally engage with a recipient's 
services, programs, and activities using electronic and information 
technology. Opportunities for such engagement require that electronic 
and information technology be accessible to ensure that communication 
with individuals with disabilities is as effective as communication 
with others.
Section 42.511(b)--Auxiliary Aids and Services
    Proposed Sec.  42.511(b)(1), which tracks language in existing 
Sec.  42.503(f), provides that ``[a] recipient shall furnish 
appropriate auxiliary aids and services where necessary to afford 
qualified individuals with disabilities, including applicants, 
participants, beneficiaries, companions, and members of the public, an 
equal opportunity to participate in, and enjoy the benefits of, a 
service, program, or activity of a recipient.'' Proposed Sec.  
42.511(b)(2) provides that ``[t]he type of auxiliary aid or service 
necessary to ensure effective communication will vary in accordance 
with the method of communication used by the individual; the nature, 
length, and complexity of the communication involved; and the

[[Page 6395]]

context in which the communication is taking place. In determining what 
types of auxiliary aids and services are necessary, a recipient entity 
shall give primary consideration to the requests of individuals with 
disabilities. In order to be effective, auxiliary aids and services 
must be provided in accessible formats, in a timely manner, and in such 
a way as to protect the privacy and independence of the individual with 
a disability.''
    An example of an auxiliary aid, which would apply in the 
corrections setting, would be the provision of videophones or other 
video-based telecommunication services to ensure that incarcerated 
individuals with disabilities can communicate as effectively as others 
who use public telephones made available by the facility.
Section 42.511(c)--Limitations on Use of Accompanying Adults or 
Children as Interpreters
    Proposed Sec.  42.511(c) includes the express limitations on the 
use of accompanying adults or children as interpreters that are 
specified in the ADA title II rule at 28 CFR 35.160. Under section 504, 
responsibility for providing effective communication, including the use 
of interpreters, falls directly on recipients, and they may not require 
an individual to bring someone to serve as an interpreter. Consistent 
with the ADA provisions, proposed Sec.  42.511(c) provides that a 
recipient may rely on an adult or minor child companion to interpret 
only in very limited emergency circumstances when no qualified 
interpreters are available. Specifically, proposed Sec.  42.511(c)(2)-
(3) only apply to emergencies involving an ``imminent threat to the 
safety or welfare of an individual or the public.'' The imminent threat 
exception is not intended to apply to the typical and foreseeable 
emergency situations that are part of the normal operations of 
institutions, such as visits to the emergency room or responses by law 
enforcement to situations involving a threat to the safety or welfare 
of an individual or the public. As such, a recipient may rely on an 
accompanying individual to interpret or facilitate communication under 
the proposed Sec.  42.511(c)(2)-(3) imminent threat exception only in 
truly exigent circumstances, i.e., where any delay in providing 
immediate services to the individual could have life-altering or life-
ending consequences.
    In nonemergency circumstances, a recipient may rely on an adult 
companion (but not a minor child) to interpret only when, (1) the 
individual requests this, (2) the accompanying adult agrees, and (3) 
reliance on the accompanying adult is appropriate under the 
circumstances. Under no circumstances may a recipient rely on an 
accompanying adult to interpret when there is reason to doubt the 
individual's impartiality or effectiveness.
Section 42.511(d)--Video Remote Interpreting (VRI) Services
    When the Department updated its title II effective communication 
provisions to include performance requirements for VRI, at 28 CFR 
35.160(d), the intent was to ensure that if VRI is used, it would be 
used in a manner that makes it as effective as when sign language 
interpreters are provided on site. The Department certainly has 
recognized that VRI can be an effective method of providing 
interpreting services in certain circumstances, but not in others. See 
75 FR 56164, 56196 (Sept. 15, 2010). For example, VRI should be 
effective in many situations involving routine medical care, as well as 
in the emergency room where urgent care is important, but no in-person 
interpreter is available; however, VRI may not be effective in 
situations involving surgery or other medical procedures where the 
patient is limited in his or her ability to see the video screen. 
Similarly, VRI may not be effective in situations where there are 
multiple people in a room and the information exchanged is highly 
complex and fast-paced. The Department recognizes that in these and 
other situations, such as where communication is needed for persons who 
are deaf-blind, it may be necessary to summon an in-person interpreter 
to assist certain individuals.
    Since the Department added this language to its title II 
regulation, it has become aware that some entities subject to title II, 
particularly in the medical environment, have not properly evaluated 
whether VRI is effective in particular situations, nor have they 
understood that these standards require that the VRI image is actually 
positioned so that it can be seen by the individual with a hearing 
disability. For example, in some circumstances, a patient who is lying 
prone while receiving medical treatment may have difficulty seeing the 
image on the screen and thus may be unable to communicate effectively 
using the remote sign language interpreter. Similarly, a pregnant woman 
who is deaf and who needs to regularly change positions while receiving 
medical assistance during labor and delivery may not always be able to 
see the image on the screen. Accordingly, the Department is adding 
language in its proposed VRI provision to expressly clarify that the 
VRI image must be positioned so that the individual with a hearing 
disability can easily see the interpreter on the screen.
    Proposed Sec.  42.511(d) states that a recipient that provides 
qualified interpreters via VRI services shall ensure that it provides 
``[a] sharply delineated image that is large enough to display the 
interpreter's face, arms, hands, and fingers, and the participating 
individual's face, arms, hands, and fingers, and can be seen by the 
participating individual regardless of the individual's body 
position.''
Section 42.511(e)--Telecommunications
    Proposed Sec.  42.511(e) incorporates the ADA title II regulatory 
requirement, at 28 CFR 35.161, that where a public entity communicates 
by telephone with applicants and beneficiaries, text telephones (TTY) 
or equally effective telecommunications systems must be used to 
communicate with individuals with disabilities. Unlike the 
corresponding ADA requirement at 28 CFR 35.161(a), however, Sec.  
42.511(e)(1) eliminates a specific reference to TTYs. The Department 
has become aware that individuals with hearing and speech disabilities 
are increasingly using other forms of telecommunication systems, 
including cellular phones, videophones, video relays, and internet-
based communication systems, in lieu of TTYs. Thus, Sec.  42.511(e)(1) 
provides that ``[w]here a recipient communicates by telephone with 
applicants, participants, beneficiaries, members of the public, and 
companions with disabilities, the recipient shall communicate with 
individuals who are deaf or hard of hearing or have speech disabilities 
using telecommunication systems that provide equally effective 
communication.''
    Additionally, the Department is aware that individuals with 
disabilities are concerned that, in some cases, emergency response 
services lack the ability to communicate with individuals who use 
methods of communication other than TTYs, such as text messaging or 
videophones, to communicate effectively. In July 2010, the Department 
issued an Advance Notice of Proposed Rulemaking on the Accessibility of 
Next Generation 9-1-1 Services, in which the Department made clear its 
intention to modify title II's telephone emergency services provision, 
at 28 CFR 35.162, to address these and other changes, and included a 
specific reference to video relay service as an example of a type of 
relay service. 75 FR 43446 (July 26, 2010). Although that regulation 
has not yet been released, the Department maintains that, under title 
II's general requirement at 28 CFR 35.161(a),

[[Page 6396]]

emergency response public safety answering points always have been 
covered by the general obligation to ensure effective communication. 
Similarly, under section 504, recipients' provision of emergency 
response services, like other aid, benefits, or services provided by 
recipients in their programs or activities, is covered by the 
overarching obligation to provide effective communication.
    Proposed Sec.  42.511(e)(2) addresses the use of automated-
attendant systems and specifies that ``[w]hen a recipient uses an 
automated-attendant system, including, but not limited to, voice mail 
and messaging, or an interactive voice response system, for receiving 
and directing incoming telephone calls, that system must provide 
effective real-time communication with individuals using auxiliary aids 
and services, including, but not limited to TTYs and all forms of FCC-
approved telecommunications relay systems, including Internet-based 
relay systems.'' In proposed Sec.  42.511(e)(3), the Department 
proposes a requirement that recipients must respond to all types of 
relay services, including video relay services, in the same manner that 
they respond to other telephone calls. This provision tracks title II, 
at 28 CFR 35.161(c), but includes an updated reference to the U.S. Code 
citation establishing the types of FCC-approved relay services, which 
include telephone relay, video relay, and IP relay.
Section 42.511(f)--Limitations
    Finally, the Department is proposing to remove a limitation that 
currently appears in Sec.  42.503(f). This provision directs that the 
obligation to provide auxiliary aids is mandatory for recipients with 
15 or more employees, but indicates that Departmental officials may 
require recipients employing fewer than 15 persons to comply with this 
requirement ``when [compliance] would not significantly impair the 
ability of the recipient to provide its benefits or services.'' The 
Department is proposing to remove this limitation for several reasons. 
First, this limitation is of minimal consequence because the vast 
majority of recipients of Federal financial assistance from the 
Department are already required by either title II or title III of the 
ADA to provide auxiliary aids or services in order to ensure effective 
communication. Second, all recipients, regardless of size, are not 
required, in providing effective communication, to take any action that 
the recipient can demonstrate would result in a fundamental alteration 
to the program or activity or pose undue financial and administrative 
burdens. Third, the Department already has the discretion whether to 
impose these obligations on recipients with fewer than 15 employees. 
Finally, given that Congress specifically intended that the principles 
of the ADA guide the policies, practices, and procedures developed 
under the Rehabilitation Act,\9\ the Department believes the removal of 
this limitation better serves the purpose shared by both the ADA and 
Rehabilitation Act to enable individuals with disabilities to ``enjoy 
full inclusion and integration into the economic, political, social, 
cultural, and educational mainstream of American society.'' 29 U.S.C. 
701(a)(3). The Department is interested in public comment about its 
proposal to eliminate the fifteen employee threshold for provision of 
auxiliary aids and services.
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    \9\ See S. Rep. 102-357 at 14 (Aug. 3, 1992); H.R. Rep. 102-822 
at 82 (Aug. 10, 1992).
---------------------------------------------------------------------------

Section 42.512--Employment
    The Department maintains the prohibition of discrimination in 
employment against any qualified individual with a disability and 
proposes to revise Sec.  42.512 to conform to the 1992 Amendments, 
which amended title V of the Rehabilitation Act to apply the same 
employment standards set forth in title I of the ADA to employment 
discrimination claims under section 504. Accordingly, the proposed rule 
deletes the existing requirements related to discriminatory employment 
practices and references the standards applied under title I of the 
ADA, 42 U.S.C. 12111 et seq., the EEOC's title I regulation at 29 CFR 
part 1630, and, to the extent such sections relate to employment, the 
provisions of sections 501 through 504 and 511 of the ADA, as amended. 
Note that the Department's regulation at 28 CFR part 37 continues to 
govern the procedures to be followed by the Federal agencies 
responsible for processing and resolving complaints or charges of 
employment discrimination filed against recipients when jurisdiction 
exists under both section 504 and title I of the ADA.
Section 42.513--Direct Threat
    The Department proposes to add a new provision at Sec.  42.513 
addressing direct threat to others as a limitation on the requirement 
to comply with this subpart, in accordance with the ADA. The 
applicability of the ``direct threat'' concept to section 504 of the 
Rehabilitation Act was first set forth in the Supreme Court decision 
School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987). 
In Arline, the Supreme Court directed that under section 504 of the 
Rehabilitation Act, the determination of whether a person with a 
contagious disease is otherwise qualified must be made on an 
individualized basis, taking into account the: nature of the risk to 
others (how the disease is transmitted); duration of the risk to others 
(how long the carrier is infectious); severity of the risk to others 
(what the potential harm is to third parties); and probability the 
disease will be transmitted and will cause varying degrees of harm to 
others. The Court made it clear that the individualized inquiry 
required appropriate findings of fact about these factors, based on 
reasonable medical judgments given the current state of medical 
knowledge. While Arline arose out of allegations that an individual was 
not ``otherwise qualified'' under section 504 because she had a 
``contagious disease'' that arguably posed a danger to the health and 
safety of others, the individualized inquiry and the specific analysis 
required by Arline apply to any exclusion on the basis of an allegation 
that a person with a disability poses a ``direct threat'' to the health 
or safety of others, including outside the communicable disease 
context. See, e.g., EEOC v. Amego, Inc., 110 F.3d 135, n.6 (1st Cir. 
1997) (``While the language of the `direct threat' provision is not 
limited to instances where the threat comes from communicable diseases, 
the provision originated in the communicable disease context.'' (citing 
H.R. Rep. No. 101-485 (II), at 76, 1990 U.S.C.C.A.N. at 358-59)).
    Congress turned to Arline as the foundation for incorporating the 
``direct threat'' concept into the ADA. See H.R. Rep. No. 101-485 
(III), at 45; 42 U.S.C 12111(3). The House Report stated: ``While the 
Arline case involved a contagious disease, * * * the reasoning in that 
case is applicable to other circumstances. A person with a disability 
must not be excluded, or found to be unqualified, based on stereotypes 
or fear.'' Id. Congress conceived of the ``direct threat'' concept 
arising in the context of a challenge to an individual's 
qualifications, or standing alone as a basis for exclusion. The 
Department's 1991 section-by-section analysis for the title II 
regulation indicated that the incorporation of the Arline ``direct 
threat'' concept and analysis was essential, ``if the law is to achieve 
its goal of protecting disabled individuals from discrimination based 
on prejudice, stereotypes, or unfounded fear, while giving appropriate 
weight to legitimate concerns, such as the need to avoid exposing 
others to significant health and safety risks.'' 28 CFR part 35,

[[Page 6397]]

app. B. The ADA regulatory language for titles II and III addresses 
determinations of ``direct threat[s]'' at 28 CFR 35.104, 36.104 
(definitions) and at 28 CFR 35.139, 36.208 in a substantially similar 
manner. The title II and III regulations define ``direct threat'' as 
``a significant risk to the health or safety of others that cannot be 
eliminated by a modification of policies, practices, or procedures, or 
by the provision of auxiliary aids or services * * *.'' 28 CFR 35.104, 
36.104. Consistent with Arline, the regulations set forth evaluative 
criteria directing that determinations as to whether an individual's 
disability constitutes a direct threat to others must be based on 
individualized findings of fact that take into account the nature, 
duration, and severity of the risk to others, the likelihood that 
injury might occur, and whether reasonable accommodations could 
mitigate the risk to others. Accordingly, the Department is proposing 
to revise its section 504 regulation to include language addressing a 
``direct threat'' that will be consistent with the standards 
articulated in Arline and the language in the Department's ADA title II 
and III regulations.
    Additionally, the Department proposes to include a new paragraph at 
proposed Sec.  42.513(c) that addresses ``direct threat'' in the 
employment discrimination context. As provided in the definitions 
section, the applicable definition of ``direct threat'' in the 
employment discrimination context includes significant risk of 
substantial harm to self. The Department is therefore proposing to 
include a paragraph that provides that an employer does not have to 
employ an individual who would pose a ``direct threat'' as that term is 
defined in the EEOC's regulation implementing title I of the ADA at 29 
CFR 1630.2(r) and 1630.15(b).
Section 42.514--Illegal Use of Drugs
    The ADA amended the Rehabilitation Act to exclude individuals 
engaging in illegal drug use from coverage of section 504. See ADA, 
sec. 512 (codified at 29 U.S.C. 705(10)). The Department proposes to 
include a new provision at Sec.  42.514 that reflects this requirement 
and uses the same language that is set forth in the comparable 
provision in the regulation implementing title II of the ADA at 28 CFR 
35.131.
Section 42.515--Claims of No Disability
    In Sec.  42.515, the Department proposes to add a new provision 
stating that ``[n]othing in this subpart shall provide the basis for a 
claim that an individual without a disability was subject to 
discrimination because of a lack of disability, including a claim that 
an individual with a disability was granted a reasonable accommodation 
that was denied to an individual without a disability.'' This provision 
is consistent with a recent amendment to title V of the ADA by section 
6 of the ADA Amendments Act. See ADA Amendments Act, sec. 6 (codified 
at 42 U.S.C. 12201(g)). While Congress did not expressly apply this 
provision to section 504 at that time, the Department believes that in 
order to maintain appropriate consistency between title II of the ADA 
and section 504, this principle should be equally applicable to the 
Department's regulatory provisions for federally assisted programs and 
activities.

Program Accessibility

Section 42.521--Existing Facilities
    Section 42.521 addresses the obligations of recipients to operate 
each program or activity subject to this subpart so that when viewed in 
its entirety, the program or activity is readily accessible to and 
usable by individuals with disabilities. This obligation, which applies 
to existing facilities, is generally known as ``program 
accessibility.'' The comparable obligation is found in the ADA title II 
regulation at 28 CFR 35.150. The Department is proposing to make non-
substantive changes to certain provisions in Sec.  42.521 in order to 
conform them to the corresponding language in the title II regulation, 
including adding a specific provision at Sec.  42.521(b)(3) to address 
how a historic preservation program shall achieve program accessibility 
where structural changes would threaten or destroy the historically 
significant features of a historic property. Aligning the section 504 
provision addressing historic preservation programs with the title II 
provision will ensure that recipients subject to both the ADA and 
section 504 may follow the same rules with respect to historic 
preservation.
    In conforming the language of Sec.  42.521 to the corresponding 
title II provision, the Department is also proposing to add an 
affirmative statement to the regulation at Sec.  42.521(a)(2) making it 
clear that the longstanding limitations of undue financial and 
administrative burden and fundamental alteration apply to the 
obligation to provide program accessibility. See Alexander v. Choate, 
469 U.S. 287 (1985); Se. Cmty. Coll. v. Davis, 442 U.S. 397 (1979).
    The Department is also proposing several other revisions to Sec.  
42.521. In Sec.  42.521(b)(1), the Department is proposing to update 
the references to the accessibility standards that apply to structural 
changes to buildings and facilities made for the purposes of providing 
program accessibility so that the section references the 2010 ADA 
Standards for Accessible Design (2010 Standards), which the Department 
is proposing to adopt in Sec.  42.522 below.
    The Department's proposed adoption of the 2010 Standards as the 
standard under section 504 for new construction and alterations raises 
the question of whether recipients will have to update elements in 
buildings or facilities currently compliant with the Uniform Federal 
Accessibility Standards (UFAS) that are not otherwise being altered, in 
order to comply with the 2010 Standards. In order to provide certainty 
to recipients and individuals with disabilities alike, the Department 
is proposing to add a safe harbor provision at Sec.  42.521(b)(2), 
which specifies that ``elements that have not been altered in existing 
facilities on or after [INSERT EFFECTIVE DATE OF THE RULE], and that 
comply with the corresponding technical and scoping specifications for 
those elements in the Uniform Federal Accessibility Standards (UFAS), * 
* * are not required to be modified to be brought into compliance with 
the requirements set forth in the 2010 Standards.'' This provision is 
similar to the safe harbor provision in the Department's ADA title II 
regulation at 28 CFR 35.150(b)(2)(i).
Section 42.521(c)--Small Providers
    The Department's current regulation at Sec.  42.521(c) provides 
that ``[i]f a recipient with fewer than fifteen employees finds, after 
consultation with [an individual with a disability] seeking its 
services, that there is no method of complying with Sec.  42.521(a) 
other than making a significant alteration in its existing facilities, 
the recipient may, as an alternative, refer the [individual with a 
disability] to other available providers of those services that are 
accessible.'' When the Civil Rights Restoration Act (CRRA) took effect 
in 1988, it amended section 504 to provide that small providers are not 
required ``to make significant structural alterations to their existing 
facilities for the purpose of assuring program accessibility, if 
alternative means of providing the services are available. The terms 
used in this subsection shall be construed with reference to the 
regulations existing on the date of the enactment of this subsection.'' 
See Public Law 100-259, sec. 4 (Mar. 22, 1988), codified at 29 U.S.C. 
794(c). The legislative history of the CRRA referenced, and explicitly

[[Page 6398]]

affirmed, provisions similar to the proposed Sec.  42.521(c) that 
existed in certain Federal agency section 504 regulations on March 22, 
1988, including those from the U.S. Department of Agriculture (USDA) 
and the U.S. Department of Veterans Affairs (VA). See S. Rep. No. 100-
64(I) at 23-24 (June 5, 1987). The USDA's section 504 regulation 
provided (and continue to provide) that a recipient who is a small 
provider may, as an alternative, refer an individual with a disability 
``to other providers of those services that are accessible at no 
additional cost'' to the individual with a disability. 7 CFR 15b.18(c). 
The VA's section 504 regulation provided (and continue to provide) that 
``[w]here referrals [by small providers] are necessary, transportation 
costs shall not exceed costs to and from recipients' programs or 
activities.'' 38 CFR 18.422(c). The legislative history also set forth 
expectations about small providers' obligations to individuals with 
disabilities when making their facilities accessible would involve a 
significant structural alteration. The legislative history cited to the 
Department of Health and Human Services' (HHS) regulation, noting that 
under the regulation, small providers may exercise the exception only 
after determining ``that the other provider's program is, in fact, 
accessible and that the other provider is willing to provide the 
services.'' S. Rep. No. 100-64 (I), at 23-24 (citing to HHS rule at 45 
CFR 84.22(c)); see 42 FR 22676, 22689 (May 4, 1977). The legislative 
history further observed that under the regulation, prior to making any 
referral, the small providers must ensure that there are ``no resulting 
additional obligations to the [individual with a disability].'' S. Rep. 
No. 100-64 (I), at 23; see 42 FR 22676, 22689 (May 4, 1977). 
Referencing the HHS, VA, and USDA regulations, the legislative history 
affirmed that the new statutory ``subsection makes it clear that the 
special rules now contained in the above described regulations are now 
specifically statutorily authorized.'' S. Rep. No. 100-64 (I), at 24.
    The Department is proposing to revise its small provider provision 
to reflect Congress's intent when it revised section 504. Accordingly, 
the Department proposes to revise Sec.  42.521(c) to provide that a 
recipient with fewer than 15 employees who finds, after consultation 
with an individual with a disability seeking its services, that there 
is no method of complying with Sec.  42.521(a) other than making a 
significant alteration to its existing facilities, may, as an 
alternative, refer the individual with a disability to alternative 
providers of available accessible services. The proposed revision 
further provides that for these purposes, in order to ensure that the 
services are available, the small provider ``must first determine that 
the alternative provider's services are accessible, the alternative 
provider is willing to provide the services, the services are available 
at no additional cost to the individual with a disability, and 
transportation costs to and from the alternative provider do not exceed 
costs to and from the small provider.'' As with all providers subject 
to section 504, if the cost of making structural changes as a means of 
providing program accessibility in existing facilities is an undue 
financial and administrative burden, then the small provider is not 
obligated to make those changes. The Department notes that in the vast 
majority of cases, small providers are also subject either to the 
program accessibility requirements of title II of the ADA or the 
barrier removal obligation of title III of the ADA.
Section 42.521(d)--Written Plan Required for Certain Recipients To 
Achieve Program Accessibility
    The Department is proposing to revise Sec.  42.521(d) to clarify 
that this provision only refers to those circumstances where a written 
plan was originally required for recipients subject to the rule when it 
first took effect. The Department is proposing to replace all 
references in this section that set compliance dates for specific 
requirements in relation to the ``effective date of this subpart'' with 
references to the actual dates when compliance was required. These 
changes will maintain continuity of regulatory requirements by 
clarifying that the original effective date of the subpart (and other 
deadlines based on this original effective date), and not the date 
these proposed amendments take effect, is the operative date for 
compliance with this section of the regulation.
Section 42.521(e)--Notice of Location of Accessible Facilities
    Under Sec.  42.521(e) of the Department's current regulation, the 
recipient is required to adopt and implement procedures to ensure that 
interested persons, including persons with various types of 
disabilities, can obtain information as to the existence and location 
of accessible services, activities, and facilities. The Department 
proposes to make a non-substantive revision to the provision on notice 
of location of accessible facilities (renumbered as Sec.  42.521(e)(1)) 
to reflect updated terminology describing certain disabilities.
    Proposed Sec.  42.521(e)(2) clarifies the obligation to provide 
notice by adding language consistent with the existing title II 
obligation at 28 CFR 35.163(b) requiring signs at a primary entrance to 
each of the recipient's inaccessible facilities, if any, directing 
users to an accessible facility or a location where they can obtain 
information about accessible facilities.
Section 42.522--Program Accessibility in Jails, Detention and 
Correctional Facilities, and Community Correctional Facilities
    The Department is proposing to add a new section entitled ``Program 
accessibility in jails, detention and correctional facilities, and 
community correctional facilities.'' This section, which is modeled 
after the Department's title II regulation at 28 CFR 35.152, provides 
additional guidance about the specific application of section 504's 
general requirements to these facilities operated by or on behalf of 
recipients of Federal financial assistance from the Department. While 
all of the jails, detention and correctional facilities, and community 
correctional facilities funded by the Department are also public 
entities subject to the title II requirements, because the Department 
provides assistance to so many of the agencies that operate these 
facilities, it believes it will be helpful to recipients to understand 
that the same requirements apply under both statutes. The Department 
has added some language that clarifies that the requirements in this 
section are in addition to the general requirements of this subpart and 
intends that this section be interpreted consistent with 28 CFR 35.152.
Section 42.523--New Construction and Alterations
Section 42.523(a) and (b)--Design and Construction; Alteration
    Section 42.522(a) of the Department's current regulation requires 
that, if construction of a recipient's facility commenced after the 
effective date of the regulation, the facility must be designed and 
constructed so that it is readily accessible to and usable by 
individuals with disabilities. In proposed Sec.  42.523(a), the 
Department proposes to replace the reference to the ``effective date of 
this subpart'' with ``July 3, 1980,'' which was the date the 
Department's original section 504 regulation took effect. This will 
maintain continuity of regulatory

[[Page 6399]]

requirements by clarifying that the original effective date of the 
subpart, and not the date these proposed amendments take effect, is the 
operative date for compliance with this section of the regulation.
    Section 42.522(a) of the Department's existing regulation also 
requires that facility alterations commenced after the effective date 
of the regulation that affect or may affect the facility's usability 
must be carried out so that, to the maximum extent feasible, the 
altered portion of the facility is readily accessible to and usable by 
individuals with disabilities. The Department proposes to separate this 
requirement into its own paragraph at proposed Sec.  42.523(b) and to 
update its phrasing for clarity. For the same purposes as the new 
construction paragraph above, the Department proposes to replace the 
reference to the ``effective date of this subpart'' with ``July 3, 
1980.''
Section 42.523(c)(1)--Adoption of Updated Accessibility Standards
    The Department proposes to revise Sec.  42.523 to adopt the 2010 
Standards for new construction and alterations in lieu of the Uniform 
Federal Accessibility Standards (UFAS).\10\ Section 42.522 of the 
Department's current regulation provides that any new construction or 
structural alterations made by recipients must be made in compliance 
with UFAS, 49 FR 31528, app. A (Aug. 7, 1984). UFAS was adopted in 1991 
as the applicable accessibility standard for section 504 as part of a 
joint rulemaking with several other agencies, moderated by the 
Department pursuant to its coordinating authority for section 504 under 
Executive Order 12250. The Department and participating agencies 
adopted UFAS to diminish the possibility that some recipients of 
Federal financial assistance would face conflicting enforcement 
standards either between section 504 and the Architectural Barriers Act 
of 1968 (which applies to all buildings and facilities built, altered, 
or leased with Federal dollars), or among the section 504 regulations 
of different Federal agencies. 55 FR 52136, 52136-37 (1990). The 
Department adopted the 2010 Standards for all new construction and 
alterations commenced on or after March 15, 2012, for entities subject 
to titles II or III of the ADA. 75 FR 56164, 56182 (Sept. 15, 2010). 
Until that time, both UFAS and the 1991 ADA Standards for Accessible 
Design were options for compliance with title II.
---------------------------------------------------------------------------

    \10\ In the preamble to the revised final title II regulation 
that adopted the 2010 Standards as new ADA accessibility standards, 
the Department stated that Federal agencies that extend Federal 
financial assistance should revise their section 504 regulations to 
adopt the 2010 Standards as updated standards for new construction 
and alterations that supersede UFAS. 75 FR 56164, 56213 (Sept. 15, 
2010). The Department also stated its intent to work with Federal 
agencies to revise their section 504 regulations in the near future 
to adopt the 2010 Standards as the appropriate accessibility 
standard for their recipients.
---------------------------------------------------------------------------

    The Department's proposed Sec.  42.523(c)(1) would require that 
recipients comply with the 2010 Standards beginning one year from the 
publication date of the final rule. In addition, the Department 
recognizes that many but not all of its recipients are also subject to 
the ADA and are already required to comply with the 2010 Standards. In 
order to minimize the timeframe during which recipients subject to 
section 504 and the ADA must comply with two separate accessibility 
standards, the Department proposes that beginning with the publication 
of the final rule in the Federal Register and until the 2010 Standards 
take effect under section 504, recipients will have the choice of 
complying with either UFAS or the 2010 Standards.\11\ Regardless of 
which accessibility standard recipients choose to use during this time 
period, recipients must consistently rely on one accessibility standard 
and may not designate one accessibility standard for one part of a 
facility and the other for the remainder.
---------------------------------------------------------------------------

    \11\ This choice is in keeping with the Department's March 2011 
memorandum advising Federal agencies that until such time as they 
update their agency's regulation implementing the federally assisted 
provisions of section 504, they may notify covered entities that 
they may use the 2010 Standards as an acceptable alternative to 
UFAS. Memorandum from Thomas E. Perez on Permitting Entities Covered 
by the Federally Assisted Provisions of Section 504 of the 
Rehabilitation Act to Use the 2010 ADA Standards for Accessible 
Design as an Alternative Accessibility Standard for New Construction 
and Alterations (Mar. 29, 2011), www.ada.gov/504_memo_standards.htm 
(last visited Mar. 10, 2016).
---------------------------------------------------------------------------

    While in some circumstances the ADA imposes different obligations 
on public entities as compared to private entities, section 504 does 
not differentiate between public and private recipients of Federal 
financial assistance. Accordingly, neither the Department's section 504 
regulation nor UFAS imposes different scoping and technical 
accessibility requirements on recipients based upon their status as 
public or private entities.
    Although in nearly all circumstances the requirements in the 2010 
Standards for buildings and facilities subject to either title II or 
title III of the ADA are the same, there are several instances where 
the requirements differ. Most significantly, Exception 1 of section 
206.2.3 of the 2010 Standards exempts certain multistory buildings 
owned by private entities from the requirement to provide an elevator 
to facilitate an accessible route throughout the building. This 
exemption does not apply to buildings owned by public entities.\12\ 
Section 217.4.3 of the 2010 Standards also specifies TTY requirements 
for public buildings that are different than those required for private 
buildings. In order to maintain the required consistency in the 
accessibility requirements applicable to all its recipients, regardless 
of whether they are public or private entities, the Department proposes 
to require all buildings and facilities subject to its section 504 
federally assisted regulation to comply with the 2010 Standards' 
scoping and technical requirements for a ``public building or 
facility,'' which are the requirements for buildings subject to title 
II of the ADA.
---------------------------------------------------------------------------

    \12\ The Department also notes that the current accessibility 
standard, UFAS, has no elevator exemption for private entities. 
Therefore, requiring private entities that are subject to both title 
III of the ADA and section 504 to comply with the requirements for 
public buildings and facilities in the 2010 Standards imposes no new 
burdens on those entities.
---------------------------------------------------------------------------

    UFAS and the 2010 Standards also have differing requirements for 
employee work areas.\13\ Sections 4.1.2(17) and 4.1.4(4-13) of UFAS 
require that most employee work areas be accessible where those areas 
would result in the employment of individuals with disabilities, and 
that 5% of all work stations in an employee work area be accessible. 
Sections 203.9 and 207.1 of the 2010 Standards require only that work 
areas be designed for approach, entry, and exit by individuals with 
disabilities. Subject to certain exceptions, section 206.2.8 of the 
2010 Standards requires common use circulation paths in employee work 
areas to be accessible to allow individuals with disabilities to move 
within the space. As the Department previously noted in its ``Analysis 
and Commentary on the 2010 Standards for Accessible Design,'' the 2010 
Standards' approach to work areas provides access for individuals with 
disabilities to approach, enter, and exit work areas such that 
reasonable accommodations to those work areas can then be made as 
required by the ADA and section 42.511 of the Department's current 
regulation. 28 CFR part 36, app. B, https://www.ada.gov/regs2010/titleIII_2010/reg3_2010_appendix_b.htm. The

[[Page 6400]]

Department expects that maintaining consistent application of the 2010 
Standards will streamline compliance for many recipients, particularly 
those that are subject to titles II or III of the ADA.
---------------------------------------------------------------------------

    \13\ In addition, section 4.1.2(13) of UFAS requires visual 
alarms where warning systems are provided. Section 215.3 of the 2010 
Standards require that audible alarms in employee work areas have 
wiring such that visual alarms can be integrated into the alarm 
system.
---------------------------------------------------------------------------

    In addition, the Department's current section 504 federally 
assisted regulation at Sec.  42.522(b) allows departures from the 
requirements of UFAS if the other methods used provide ``substantially 
equivalent or greater access to and usability of the building.'' This 
concept of departure from the accessibility standards is retained in 
this regulation (renumbered as Sec.  42.523(c)(1)(v)), but the phrasing 
is adjusted for consistency with the title II regulation.
    Lastly, the Department notes that a recipient that receives funding 
from multiple Federal agencies must ensure that it is compliant with 
the accessibility standards of each agency from which it receives 
Federal funding.
Section 42.523(c)(2) and (3)--Triggering Events for Compliance With the 
Applicable Accessibility Standards
    As discussed above, the Department is proposing that all recipients 
must comply with the 2010 Standards in lieu of UFAS one year from the 
publication date of the final rule in the Federal Register. In 
recognition of the fact that buildings and facilities may be in the 
planning, design, or construction phases for a number of years, the 
Department is proposing to specify ``triggering events'' that would 
determine which buildings and facilities must comply as of the 
compliance date. The Department is proposing, however, to use different 
``triggering events'' for application of the 2010 Standards to new 
construction and alterations for ``public entities'' that receive 
financial assistance from the Department as compared to ``private 
entities'' that receive such assistance. These two different categories 
of ``triggering events'' are based upon the ``triggering events'' 
specified in the Department's title II and title III rules at 28 CFR 
35.151(c) and 28 CFR 36.406(a), respectively. The Department expects 
that maintaining consistency with the ADA requirements in this regard 
will simplify application of the 2010 Standards for recipients already 
subject to either title II or title III.
    Thus, the Department is proposing that recipients that are private 
entities may choose either UFAS or the 2010 Standards when one of the 
following events has occurred on or after the date of publication of 
the final rule in the Federal Register but before the compliance date 
for the 2010 Standards: (1) The last application for a building permit 
or permit extension is certified to be complete by a State, county, or 
local government; (2) in those jurisdictions where the government does 
not certify completion of applications, the last application for a 
building permit or permit extension is received by the State, county, 
or local government; or (3) if no permit is required, the commencement 
of physical construction or alterations.
    Similarly, the Department is proposing that recipients that are 
private entities must comply with the 2010 Standards as of one year 
from publication of this rule in the Federal Register when one of the 
following events has occurred on or after one year from the date of 
publication of the final rule in the Federal Register: (1) The last 
application for a building permit or permit extension is certified to 
be complete by a State, county, or local government; (2) in those 
jurisdictions where the government does not certify completion of 
applications, the last application for a building permit or permit 
extension is received by the State, county, or local government; or (3) 
if no permit is required, the commencement of physical construction or 
alterations.
    For public entities receiving Federal financial assistance from the 
Department, the Department is proposing to use the commencement of 
physical construction or alterations on or after the publication date 
of the final rule but before the required compliance date of the 2010 
Standards as the ``triggering event'' for the choice of standards 
permitted by Sec.  42.523(c)(1). Similarly, the Department is proposing 
to use the commencement of physical construction or alterations on or 
after one year from publication of the final rule in the Federal 
Register as the ``triggering event'' for the requirement to comply with 
the 2010 Standards. This is consistent with the approach the Department 
took for compliance with the 2010 Standards under title II of the ADA.
    The Department is proposing at Sec.  42.523(c)(3) to add a 
provision similar to the language in the ADA regulations at 28 CFR 
35.151(c)(4) in title II and 28 CFR 36.406(a)(4) in title III that 
states that ``ceremonial groundbreaking or razing of structures prior 
to site preparation will not be considered to commence or start 
physical construction or alterations.''
42.523(c)(4)--Compliance With the Architectural Barriers Act of 1968
    Facilities designed, built, altered, or leased with Federal funds 
are subject to the requirements of the Architectural Barriers Act of 
1968, as amended, 42 U.S.C. 4151-57 (ABA). Facilities that receive 
Federal financial assistance from the Department are required to comply 
with the ABA accessibility standards adopted by the General Services 
Administration (GSA), which is the Federal agency responsible for 
adopting ABA standards for all buildings subject to the ABA except for 
residential structures; buildings, structures, and facilities of the 
Department of Defense (DOD); and buildings, structures and facilities 
of the U.S. Postal Service (USPS).\14\ The U.S. Access Board is the 
enforcing authority with respect to complaints under the ABA.
---------------------------------------------------------------------------

    \14\ The U.S. Access Board is charged with promulgating 
accessibility guidelines that form the basis of the ABA standards 
adopted by GSA, Department of Housing and Urban Development (HUD), 
DOD, and USPS. See 42 U.S.C. 4151 et seq. On July 23, 2004, the 
Access Board published its final revised ABA Accessibility 
Guidelines (2004 ABAAS). See 69 FR 44084. In 2005, GSA adopted the 
2004 ABAAS as the enforceable standard for Federal facilities under 
its jurisdiction. See 41 CFR 102-76.65.
---------------------------------------------------------------------------

    Many, but not all, buildings and facilities used by recipients for 
their programs or activities are also covered by the ABA. Until 
recently, UFAS served as the applicable accessibility standard under 
both section 504 federally assisted regulations and the ABA, and, 
therefore, facilities that complied with UFAS were also in compliance 
with the ABA. While there is significant overlap between the current 
ABA standards and the 2010 Standards, there are a number of 
differences. Recipients subject to both statutes need to be aware of 
the requirements of both accessibility standards and need to comply 
with both. Thus, the Department is proposing at Sec.  42.523(c)(4) to 
add a provision reminding recipients that ``[n]othing in this section 
relieves recipients whose facilities are covered by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), from their 
responsibility of complying with the requirements of that Act and any 
implementing regulations.''

Procedures

Section 42.530--Administrative Procedures for Recipients
    Certain provisions of Sec.  42.505 of the existing regulation 
(renumbered as Sec.  42.530) impose administrative requirements related 
to the designation of a responsible employee for compliance with this 
subpart (Sec.  42.505(d) of the current regulation), adoption of 
grievance procedures (Sec.  42.505(e) of the current regulation), and 
provision of notice of nondiscrimination (Sec.  42.505(f) of the

[[Page 6401]]

current regulation). The existing regulatory provisions apply these 
specific requirements automatically to all recipients: Employing 50 or 
more persons; and receiving Federal financial assistance from the 
Department of $25,000 or more (in the case of the designated employee 
and grievance procedures) or more than $25,000 (in the case of the 
provision of notice). However, the existing regulatory provisions also 
give the Department discretion whether to apply these requirements to 
``any recipient with fewer than fifty employees and receiving less than 
$25,000'' in financial assistance from the Department. See Sec.  
42.505(g).
    The Department is seeking public comment on whether it should 
revise paragraphs 42.505(d), (e) and (f) of the existing regulation 
(renumbered as 42.530(c), (d) and (e)), to delete any references to 
size of grant award, so that the number of employees (50 or more) is 
the only criteria triggering the application of the administrative 
requirements in these three paragraphs. State and local governments 
already are subject to comparable requirements under title II of the 
ADA. See 28 CFR 35.104, 35.105. The Department is interested in public 
comment on how many recipients with 50 or more employees receive grants 
from the Department of less than $25,000 and thus, would be affected if 
the Department were to revise the rule in this manner. The Department 
is also interested in public comment on whether it should change or 
eliminate the number of employees or the grant amount that triggers 
these requirements, what the new threshold number of employees or grant 
amount should be to trigger the obligation to meet these requirements, 
the number of affected recipients if the Department makes this change, 
and the costs related to making this change.
Section 42.530(b)--Self-Evaluation
    The Department is maintaining the provision requiring recipients to 
conduct a self-evaluation as a historical requirement but is revising 
it to refer to the requirements in the past tense. The Department's 
current regulation at Sec.  42.505(c) requires in part that a 
recipient, ``within one year of the effective date of this subpart, 
evaluate and modify its policies and practices that do not meet the 
requirements of this subpart.'' The Department is proposing to make a 
non-substantive revision to Sec.  42.530(b) of this paragraph by 
replacing the phrase ``within one year of the effective date of this 
subpart,'' with the actual date that was a year from when the subpart 
originally took effect, which is ``July 3, 1981.'' While this provision 
does not require recipients to conduct a self-evaluation beyond the 
original deadline of July 3, 1981, the Department is retaining this 
provision because the self-evaluation requirement under section 504 is 
cross-referenced in the Department's ADA title II regulation at 28 CFR 
35.105(d).
Section 42.530(d)--Adoption of Grievance Procedures
    Section 42.505(e) of the current regulation requires recipients to 
adopt grievance procedures. The Department proposes to make a non-
substantive change to this provision (renumbered as Sec.  42.530(d)) to 
clarify that the procedures adopted by the recipient must incorporate 
appropriate due process standards. The Department also proposes to 
revise this paragraph to clarify that any individual may file a 
complaint with the Department without having first used the recipient's 
grievance procedures.
Section 42.530(e)--Notice
    Section 42.505(f) of the current regulation requires a recipient 
that employs 50 or more persons and that receives Federal financial 
assistance from the Department of more than $25,000 to take appropriate 
initial and continuing steps to notify participants, beneficiaries, 
applicants, employees, and unions or professional organizations holding 
collective bargaining or professional agreements with the recipient 
that it does not discriminate on the basis of disability in violation 
of section 504 and this subpart. This provision also delineates the 
methods of initial and continuing notification to include ``the posting 
of notices, publication in newspapers and magazines, placement of 
notices in recipients' publication, and distribution of memoranda or 
other written communications.''
    The proposed regulation maintains the requirement that the notice 
shall state that the recipient does not discriminate in its programs or 
activities with respect to access, treatment, or employment and shall 
include the identification of the person responsible for coordinating 
compliance with this subpart and where to file section 504 complaints 
with the Department and, where applicable, with the recipient. The 
Department encourages recipients to consider including in their notice 
information relating to the availability of auxiliary aids and 
services, procedures for obtaining such aids and services, contact 
information for the responsible employee, and the availability of 
grievance procedures.
    The Department recognizes that the methods by which a recipient 
communicates with interested persons have changed significantly since 
this regulation was promulgated and that this regulation, as currently 
written, does not reflect the current and future state of information 
dissemination. With the growth of the Internet and the World Wide Web, 
the Department has determined that the regulation should also reference 
postings on a recipient's Web site as a permissible method of 
communication and is proposing to include ``publications on the 
recipient's internet Web site'' as a method of initial and continuing 
notification in the regulation (renumbered as Sec.  42.530(e)(1)). Many 
of the publications that previously were available in print such as 
pamphlets, brochures, maps, course catalogs, policies, and procedures 
are now posted on recipients' Web sites and can be printed or 
downloaded by an interested person viewing the Web site.
    The Department has deleted the reference in this section to the 
initial notification deadline because the requirement to provide notice 
is a continuing obligation and the initial notification deadline has 
long passed.
Section 42.530(f)
    The Department is proposing to remove the reference to paragraph 
(c)(2) in the current Sec.  42.505(g) (renumbered as Sec.  42.530(f)), 
which addresses self-evaluation as a potential requirement for 
recipients with fewer than 50 employees. The self-evaluation provision 
at paragraph (c)(2) (renumbered as paragraph (b)(2) in this section) is 
a historical requirement and does not apply to current or future 
recipients.
Section 42.531--Assurances Required
Section 42.531(a)--Assurances Required
    The Department is proposing to revise its provisions on assurances 
from government agencies at current Sec.  42.504(b) and assurances from 
institutions at current Sec.  42.504(c) to align these provisions with 
the definition of ``program or activity'' that was adopted by the 
Department in 2003 as a result of the Civil Rights Restoration Act and 
Cureton v. NCAA, 198 F.3d 107 (3d Cir. 1999). See 68 FR 51334, 51364 
(Aug. 26, 2003). Before the CRRA, the definition of ``program'' was 
limited to ``the operations of the agency or organizational unit of 
government receiving or substantially benefiting from the Federal 
assistance awarded,

[[Page 6402]]

e.g., a police department or department of corrections.'' 45 FR 37620, 
37626 (June 3, 1980). Therefore, it was necessary, for instance, to 
clarify that the assurance applied to the entire agency or agency of 
the same governmental unit if the policies of the other agency would 
affect the ``program'' (as defined at that time) for which Federal 
financial assistance was requested. However, it is no longer necessary 
to include that clarification, given that the definition of ``program 
or activity'' that was adopted in 2003 encompasses ``all of the 
operations of the entity of a State or local governmental agency or 
department that distributes the federal assistance to another State or 
local governmental agency or department and all of the operations of 
the State or local governmental entity to which the financial 
assistance is extended.'' See 68 FR 51334, 51336, 51364 (Aug. 26, 
2003).
    Additionally, the definition of ``program or activity'' adopted in 
2003 also includes educational institutions, corporations and other 
private organization, and plants. The Department is proposing to revise 
current Sec.  42.504(c) to ensure that the applicability of the 
nondiscrimination requirements is also addressed with respect to these 
entities consistent with the definition of ``program or activity.''
Section 42.531(b)--Duration of Obligation
    The Department's current section 504 federally assisted regulation 
at Sec.  42.504(d) provides that ``[w]here the Federal financial 
assistance is to provide or is in the form of real or personal 
property, the assurance will obligate the recipient and any transferee 
for the period during which the property is being used for the purpose 
for which the Federal financial assistance is extended or for another 
purpose involving the provisions of similar benefits, or for as long as 
the recipient retains ownership or possession of the property, 
whichever is longer. In all other cases the assurance will obligate the 
recipient for the period during which Federal financial assistance is 
extended.'' The Department proposes several clarifications to the 
duration of obligation requirement. First, the Department proposes to 
have the assurance apply to improvements provided by Federal financial 
aid and assistance, in addition to real or personal property. Second, 
the Department proposes to reference the provision of federally 
assisted services, in addition to benefits, as a determinant of the 
duration of assurance obligations. Finally, the Department proposes to 
replace the reference ``[i]n all other cases'' with ``[w]hen the 
Federal financial assistance is not in the form of real or personal 
property or improvements'' to clarify the particular circumstances 
under which the assurance continues to apply to the recipient during 
the period for which Federal financial assistance is extended.
Section 42.532--Compliance and Enforcement Procedures
    The Department is maintaining the compliance and enforcement 
procedures provision from Sec.  42.530 of its current regulation and 
has renumbered it as Sec.  42.532. In an effort to account for future 
changes in organization and to eliminate obsolete references to some 
components that no longer exist within the Department, the Department 
proposes to replace the references to ``LEAA, NIJ, BJS, OJARS, and 
OJDDP'' with the phrase ``a grant-making component of the Department.'' 
In addition, the Department is proposing to revise Sec.  42.530(c) 
which currently provides that ``[i]n the case of programs or activities 
funded by LEAA, NIJ, BJS, OJARS, and OJJDP, the refusal to provide 
requested information under paragraph (a) of this section and [28 CFR] 
42.106 will be enforced pursuant to the provisions of section 803(a) of 
title I of the Omnibus Crime Control and Safe Streets Act'' as amended 
(emphasis added). The Department believes that, in addition to the 
termination of funds as a remedy under section 803(a) and its successor 
statute, 42 U.S.C. 3783, the Department should also have the discretion 
to consider, where appropriate, a more measured response to a 
recipient's refusal to provide requested information and therefore, 
should be able to avail itself of ``the remedies, procedures and rights 
set forth in title VI of the Civil Rights Act of 1964 * * * available 
to any person aggrieved by any act or failure to act by any recipient 
of Federal assistance,'' consistent with the Rehabilitation Act. See 29 
U.S.C. 794a(a)(2). Accordingly, the Department proposes to revise Sec.  
42.530(c) of the existing regulation (renumbered as Sec.  42.532(a)(2)) 
to read ``[i]n the case of programs or activities funded by a grant-
making component of the Department, the refusal to provide access to 
sources of information pursuant to 28 CFR 42.106(c) may be enforced 
using the procedures cited in paragraph (a)(i) of this section or using 
the provisions of section 803(a) of title I of the Omnibus Crime 
Control and Safe Streets Act'' as amended (emphasis added). The 
Department proposes to delete paragraphs (d) and (e) of existing Sec.  
42.530. Paragraph (d) established a 180-day limitation period from July 
3, 1980, to file complaints of acts of discrimination that occurred 
prior to July 3, 1980. This provision is no longer necessary. 
Similarly, the Department proposes deleting paragraph (e) because it 
establishes a procedure for which the statute of limitations has long 
passed and is thus no longer necessary.
    The Department also proposes to move its existing provision 
addressing remedial action from existing Sec.  42.505(a) to proposed 
Sec.  42.532(c) because the requirement for remedial action arises 
after a finding of discrimination has been made in accordance with the 
procedures set forth in this section. The Department believes that the 
placement of the remedial action provision in the compliance procedures 
section is a more logical placement than its current location in the 
administrative requirements section. The Department also proposes 
making non-substantive edits to the existing language.
    Lastly, the Department proposes to add a new paragraph at proposed 
Sec.  42.532(d) that directs complaints alleging violations of section 
504 by recipients of financial assistance from the Department to be 
filed with the Office of Justice Programs. The Office of Justice 
Programs is the entity within the Department that enforces section 504.

III. Regulatory Analysis

A. Executive Order 13563 and 12866--Regulatory Planning and Review

    This NPRM has been drafted in accordance with Executive Order 13563 
of January 18, 2011, 76 FR 3821, Improving Regulation and Regulatory 
Review, and Executive Order 12866 of September 30, 1993, 58 FR 51735, 
Regulatory Planning and Review. Executive Order 13563 directs agencies, 
to the extent permitted by law, to propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its costs; 
tailor the regulation to impose the least burden on society, consistent 
with obtaining the regulatory objectives; and, in choosing among 
alternative regulatory approaches, select those approaches that 
maximize net benefits. Executive Order 13563 recognizes that some 
benefits and costs are difficult to quantify and provides that, where 
appropriate and permitted by law, agencies may consider and discuss 
qualitatively values that are difficult or impossible to quantify, 
including equity, human dignity, fairness, and distributive impacts.

[[Page 6403]]

    The Department has determined that this proposed rule is a 
``significant regulatory action'' as defined by Executive Order 12866, 
sec. 3(f). The Department has determined, however, that this proposed 
rule is not an economically significant regulatory action, as it will 
not have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. This NPRM has been reviewed by the Office of Management 
and Budget (OMB) pursuant to Executive Orders 12866 and 13563.
    This rule provides necessary revisions to the Department's current 
section 504 federally assisted regulation to: (1) Incorporate 
amendments to the statute including the changes in the meaning and 
interpretation of the applicable definition of disability required by 
the ADA Amendments Act; (2) incorporate requirements stemming from 
judicial decisions; (3) update accessibility standards applicable to 
new construction and alteration of buildings and facilities; (4) update 
certain provisions to promote consistency with comparable provisions 
implementing title II of the ADA; and (5) make other non-substantive 
clarifying edits. The proposed regulation is intended to promote 
consistency of judicial interpretations and predictability of executive 
enforcement of section 504 of the Rehabilitation Act, as it pertains to 
federally assisted programs.
    This rule does not significantly change any existing substantive 
obligations of recipients subject to the Department's federally 
assisted regulation because, with the exception of the updated 
accessibility standard, the Department is incorporating into its 
section 504 regulation definitions and requirements arising out of 
statutory amendments to the Rehabilitation Act and longstanding Supreme 
Court decisions. Moreover, the Department's adoption of the 2010 
Standards as the updated accessibility standard under section 504 will 
have the effect of simplifying the obligations of its recipients. It 
should not result in any substantial costs since the vast majority of 
its recipients are already required to comply with the 2010 Standards 
because they are either State or local governments covered by title II 
of the ADA or public accommodations subject to title III of the ADA. 
The harmonization of the section 504 accessibility requirements with 
the ADA's requirements will result in recipients being subject to only 
one accessibility standard (the 2010 Standards) instead of two and 
could have the effect of reducing costs since recipients will no longer 
have to be familiar with and apply up to two sets of requirements. 
Lastly, the conformance of section 504's regulatory provisions with the 
existing comparable regulatory provisions implementing title II of the 
ADA will not result in any substantial costs because the requirements 
under section 504 will remain substantially the same. Title II of the 
ADA is modeled on section 504 of the Rehabilitation Act of 1973, and 
Congress intended, through its 1992 Amendments to the Rehabilitation 
Act, that the principles underlying the ADA also apply to all sections 
of the Rehabilitation Act, including section 504. As a result, courts 
have generally treated claims under title II and section 504 the same.
    Title III of the ADA applies to the activities of all public 
accommodations (including nonprofit organizations) funded by the 
Department with the exception of those recipients that fall within the 
ADA's exemption for ``religious organizations or entities controlled by 
religious organizations.'' See 42 U.S.C. 12187. Based on the following 
data from the Department's grant-making components, the Department 
estimates that:
     Of the approximately 6395 recipients \15\ directly funded 
by the Office of Justice Programs (OJP), approximately 34 have self-
identified as faith-based organizations and may well qualify for the 
ADA exemption.
---------------------------------------------------------------------------

    \15\ This number is based upon OJP's data on active awards as of 
June 7, 2016. While it is possible that multiple awards may be 
provided to a single recipient, the Department is assuming a one to 
one correspondence between award and recipient for purposes of this 
analysis. The Department has no data on the number of subrecipients 
funded by OJP, or the number of those subrecipients that may qualify 
for the ADA religious exemption.
---------------------------------------------------------------------------

     Of the approximately 1478 recipients \16\ funded by the 
Community Oriented Policing Services (COPS) Office, 0 have self-
identified faith-based organizations.
---------------------------------------------------------------------------

    \16\ This number is based upon COPS' data on active awards as of 
June 6, 2016. While it is possible that multiple awards may be 
provided to a single recipient, the Department is assuming a one to 
one correspondence between award and recipient for purposes of this 
analysis
---------------------------------------------------------------------------

     Of the approximately 1739 discretionary grantees and 2934 
discretionary subgrantees \17\ funded by the Office on Violence Against 
Women (OVW), approximately 84 have self-identified as faith-based 
organizations and may well qualify for the ADA exemption.
---------------------------------------------------------------------------

    \17\ This data reflects information that OVW collects from its 
discretionary grantees in their July-December 2014 semi-annual 
progress reports and from its subgrantees in their annual 2014 
progress reports.
---------------------------------------------------------------------------

    This data suggests a total of approximately 118 grantees and 
subgrantees collectively that are self-identified as faith-based 
organizations. However, because the Department has no data on the 
number of subrecipients funded by OJP or whether any of them are in 
fact religious entities, this number may be higher. OJP has previously 
estimated that there are approximately 100 total faith-based grantees 
and subgrantees funded by OVW and 50 total faith-based grantees and 
subgrantees funded by OJP, for a total estimate of 150 grantees and 
subgrantees from OJP and OVW collectively that are faith-based 
organizations.\18\ Therefore, we estimate between 118 and 150 total 
faith-based grantees and subgrantees.
---------------------------------------------------------------------------

    \18\ This number comes from the Department's proposed rule to 
amend 28 CFR part 38, titled ``Partnerships with Faith-Based and 
Other Neighborhood Organizations; Proposed Rule,'' 80 FR 47316, 
47322 (Aug. 6, 2015).
---------------------------------------------------------------------------

    The recipients falling under the ADA's religious exemption could be 
affected by any incremental changes in the accessibility requirements 
that result from the change in the applicable standard from UFAS to the 
2010 Standards if they engage in new construction or alterations of the 
facilities serving the program or activity funded by the Department. As 
discussed in the preamble, however, because of the safe harbor set 
forth in proposed Sec.  42.521(b)(2), these recipients will not have 
any obligation to modify any elements in their existing facilities that 
are compliant with UFAS unless they alter those elements after the 
compliance date for the Standards takes effect.
    A subset of these recipients falling under the ADA religious 
exemption--those with fewer than 15 employees that were previously 
exempt from the automatic obligation to provide auxiliary aids and 
services--may be affected by the proposed elimination of the 15 
employee threshold for that obligation. Some of these entities may have 
fewer than 15 employees.
    Given the small subset of recipients who could potentially be 
affected and the infinite variations of the type of new construction or 
alteration that could occur along with the type of auxiliary aid or 
service that could be provided, it would not be feasible to quantify 
the impact of these changes on an individual basis. However, the 
Department believes that generally costs for individual recipients 
would not likely be significant.

[[Page 6404]]

    The Department is interested in public comment on whether its 
assumptions are correct as to the following: (1) The number of 
recipients that fall within the ADA exemption for religious 
organizations or organizations controlled by religious organizations; 
(2) how many subrecipients funded by OJP may fall within the ADA 
religious exemption; 3) how many of these recipients also have fewer 
than 15 employees and whether this particular provision should have a 
compliance date later than the general effective date of the rule; and 
4) the costs to individual recipients not being significant. The 
Department believes that the costs of this rule will be significantly 
less than $100 million in any given year. The Department is interested 
in public comment on its assumptions that the costs of this rule will 
be significantly less than $100 million in any given year.

B. Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this regulation, and by approving it 
certifies that it will not have a significant economic impact on a 
substantial number of small entities. With the exception of the updated 
accessibility standard, the substantive changes to the section 504 
regulation reflect the Department's incorporation of definitions and 
requirements arising out of statutory amendments to the Rehabilitation 
Act and longstanding Supreme Court decisions. Moreover, the 
Department's adoption of the 2010 Standards as the updated 
accessibility standard under section 504 will have the effect of 
simplifying the obligations of its recipients and should not result in 
any additional costs since the vast majority of its recipients are 
already required to comply with the 2010 Standards because they are 
either State or local governments covered by title II of the ADA or 
public accommodations subject to title III of the ADA. The 
harmonization of the section 504 accessibility requirements with the 
ADA requirements will result in recipients being subject to only one 
accessibility standard (the 2010 Standards) instead of two. 
Additionally, the conformance of section 504's regulatory provisions 
with existing comparable provisions implementing title II of the ADA 
will not result in any additional costs for the vast majority of 
recipients funded by the Department. Lastly, the rule does not include 
reporting requirements and imposes no new recordkeeping requirements. 
Even if the Department assumed that all of the recipients that may be 
subject to the ADA's religious exemption qualify as ``small 
organizations'' and would be affected by the incremental changes in the 
accessibility standards and the elimination of the 15-employee 
threshold for the requirement to provide auxiliary aids and services, 
the Department believes that the number of small entities affected by 
this rule, compared to the thousands of recipients funded by the 
Department's grant-making components does not constitute a 
``significant number of small entities'' affected by this rule. The 
Department is interested in public comment on its assumptions about the 
impact of the revisions to its section 504 regulation on small entities 
that receive Federal financial assistance from the Department.

C. Executive Order 13132: Federalism

    Executive Order 13132 directs that, to the extent practicable and 
permitted by law, an agency shall not promulgate any regulation that 
has federalism implications, that imposes substantial direct compliance 
costs on State and local governments, that is not required by statute, 
or that preempts State law, unless the agency meets the consultation 
and funding requirements of section 6 of the Executive Order. Because 
each change proposed by this rule does not have federalism implications 
as defined in the Executive Order, does not impose direct compliance 
costs on State and local governments, is required by statute, or does 
not preempt State law within the meaning of the Executive Order, the 
Department has concluded that compliance with the requirements of 
section 6 is not necessary.

D. Plain Language Instructions

    The Department makes every effort to promote clarity and 
transparency in its rulemaking. In any regulation, there is a tension 
between drafting language that is simple and straightforward and 
drafting language that gives full effect to issues of legal 
interpretation. The Department is proposing a number of changes to this 
regulation to enhance its clarity and satisfy the plain language 
requirements, including revising the organizational scheme and adding 
headings to make it more user-friendly. The Department operates a toll-
free ADA Information Line (800) 514-0301 (voice) and (800) 514-0383 
(TTY) that the public is welcome to call to obtain assistance in 
understanding anything in this proposed rule. If any commenter has 
suggestions for how the regulation could be written more clearly, 
please provide comments using the contact information provided in the 
introductory section of this proposed rule entitled, FOR FURTHER 
INFORMATION CONTACT.

E. Paperwork Reduction Act

    This proposed rule does not contain any new or revised 
``collection[s] of information'' as defined by the Paperwork Reduction 
Act of 1995. 44 U.S.C. 3501 et seq.

F. Unfunded Mandates Reform Act

    Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1503(2), excludes from coverage under that Act any proposed or final 
Federal regulation that ``establishes or enforces any statutory rights 
that prohibit discrimination on the basis of race, color, religion, 
sex, national origin, age, handicap, or disability.'' Accordingly, this 
rulemaking is not subject to the provisions of the Unfunded Mandates 
Reform Act.

List of Subjects for 28 CFR Part 42

    Administrative practice and procedure, Buildings and facilities, 
Civil rights, Communications, Grant programs, Individuals with 
disabilities, Reporting and recordkeeping requirements.

    By the authority vested in me as Attorney General by law, including 
5 U.S.C. 301, 28 U.S.C. 509, 510, 29 U.S.C. 794, Executive Order 12250, 
part 42 of title 28 of the Code of Federal Regulations is proposed to 
be amended as follows:

PART 42--NONDISCRIMINATION; EQUAL EMPLOYMENT OPPORTUNITY; POLICIES 
AND PROCEDURES

0
1. Revise Subpart G to read as follows:

Subpart G--Nondiscrimination Based on Disability in Federally 
Assisted Programs or Activities--Implementation of Section 504 of 
the Rehabilitation Act of 1973

Sec.

General

Sec.  42.501 Purpose.
Sec.  42.502 Application, broad coverage, and relationship to other 
laws.
Sec.  42.503 Definitions.
Sec. Sec.  42.504-42.509 [Reserved]

General Nondiscrimination Requirements

Sec.  42.510 General prohibitions against discrimination.
Sec.  42.511 Communications. SECTNO>Sec.  42.512 Employment.
Sec.  42.513 Direct threat.
Sec.  42.514 Illegal use of drugs.
Sec.  42.515 Claims of no disability.
Sec.  42.516-42.519 [Reserved]

[[Page 6405]]

Program Accessibility

Sec.  42.520 Discrimination prohibited.
Sec.  42.521 Existing facilities.
Sec.  42.522 Program accessibility in jails, detention and 
correctional facilities, and community correctional facilities.
Sec.  42.523 New construction and alterations.
Sec. Sec.  42.524-42.529 [Reserved]

Procedures

Sec.  42.530 Administrative procedures for recipients.
Sec.  42.531 Assurances required.
Sec.  42.532 Compliance and enforcement procedures.
Sec.  42.533-42.539 [Reserved]
Appendix--Appendix A to Subpart G of Part 42--Federal Financial 
Assistance Administered by the Department of Justice to Which This 
Subpart Applies.
Appendix--Appendix B to Subpart G of Part 42 [Reserved].
Appendix--Appendix C to Subpart G of Part 42--Department Regulations 
Under Title VI of the Civil Rights Act of 1964 (28 CFR 42.106-
42.110) Which Apply to This Subpart
Appendix--Appendix C to Subpart G of Part 42--OJARS' Regulations 
Under the Omnibus Crime Control and Safe Streets Act, as Amended, 
Which Apply to This Subpart (28 CFR 42.205 and 42.206)

    Authority:  5 U.S.C. 301; 28 U.S.C. 509, 510; 29 U.S.C. 794; 
E.O. 12250.

General


Sec.  42.501  Purpose.

    The purpose of this subpart is to implement section 504 of the 
Rehabilitation Act of 1973, as amended, which prohibits discrimination 
on the basis of disability in any program or activity receiving Federal 
financial assistance.


Sec.  42.502  Application, broad coverage, and relationship to other 
laws.

    (a) Application. This subpart applies to each recipient of Federal 
financial assistance from the Department of Justice and to each program 
or activity receiving such assistance. The requirements of this subpart 
do not apply to the ultimate beneficiaries of Federal financial 
assistance in the program or activity receiving Federal financial 
assistance. This subpart does not apply to programs or activities 
conducted by the Department of Justice.
    (b) Broad scope of coverage. Consistent with the ADA Amendments 
Act's purpose of reinstating a broad scope of protection under both the 
Americans with Disabilities Act and section 504, the definition of 
``disability'' in this subpart shall be construed broadly in favor of 
expansive coverage to the maximum extent permitted by the terms of 
section 504. The primary object of attention in cases brought under 
this subpart should be whether entities covered under section 504 have 
complied with their obligations and whether discrimination has 
occurred, not whether the individual meets the definition of 
``disability.'' The question of whether an individual meets the 
definition of ``disability'' should not demand extensive analysis.
    (c) Relationship to other laws.
    (1) The obligation to comply with this subpart is not obviated by 
or otherwise affected by the existence of any State or local law or 
other requirement that, on the basis of disability, imposes 
prohibitions or limits upon the eligibility of qualified individuals 
with disabilities to receive aid, benefits, or services or to practice 
any occupation or profession.
    (2) This subpart does not invalidate or limit the remedies, rights, 
and procedures of any other Federal law, or State or local law 
(including State common law), that provide greater or equal protection 
for the rights of individuals with disabilities or individuals 
associated with them.


Sec.  42.503   Definitions.

    As used in this subpart the term--
    2004 ADAAG means the requirements set forth in appendices B and D 
to 36 CFR part 1191 (2009).
    2010 Standards means the 2010 ADA Standards for Accessible Design, 
which consist of the 2004 ADAAG and the requirements contained in 28 
CFR 35.151.
    The Act means the Rehabilitation Act of 1973, Public Law 93-112, as 
amended, 29 U.S.C. 701 et seq.
    Applicant means one who submits an application, request, or plan 
required to be approved by the designated Department official or by a 
primary recipient, as a condition to eligibility for Federal financial 
assistance.
    Auxiliary aids and services include--
    (1) Qualified interpreters on-site or through video remote 
interpreting (VRI) services; note takers; real-time computer-aided 
transcription services; written materials; exchange of written notes; 
telephone handset amplifiers; assistive listening devices; assistive 
listening systems; telephones compatible with hearing aids; closed 
caption decoders; open and closed captioning, including real-time 
captioning; voice, text, and video-based telecommunications products 
and systems, including text telephones (TTYs), videophones, and 
captioned telephones, or equally effective telecommunications devices; 
videotext displays; accessible electronic and information technology; 
or other effective methods of making aurally delivered information 
available to individuals who are deaf or hard of hearing.
    (2) Qualified readers; taped texts; audio recordings; Brailled 
materials and displays; screen reader software; magnification software; 
optical readers; secondary auditory programs (SAP); large print 
materials; accessible electronic and information technology; or other 
effective methods of making visually delivered materials available to 
individuals who are blind or have low vision;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
    Component means any specific division, operating bureau, or other 
organizational unit of the Department of Justice.
    Current illegal use of drugs means illegal use of drugs that 
occurred recently enough to justify a reasonable belief that a person's 
drug use is current or that continuing use is a real and ongoing 
problem.
    Department means the Department of Justice, including each of its 
specific divisions, operating bureaus, and other organizational units.
    Direct threat means
    (1) With respect to any aid, benefit, or service provided under a 
program or activity subject to this subpart, a significant risk to the 
health or safety of others that cannot be eliminated by a modification 
of policies, practices, or procedures, or by the provision of auxiliary 
aids or services.
    (2) With respect to employment, the term as defined by the Equal 
Employment Opportunity Commission's regulation implementing title I of 
the Americans with Disabilities Act of 1990, at 29 CFR 1630.2(r).
    Disability has the same meaning as given in 28 CFR part 35.
    Drug means a controlled substance as defined in schedules I through 
V of section 202 of the Controlled Substances Act, 21 U.S.C. 812.
    Facility means all or any portion of buildings, structures, sites, 
complexes, equipment, roads, walks, passageways, parking lots, rolling 
stock, or other conveyances, including the site where the building, 
property, structure, or equipment is located, or other real or personal 
property or interest in such property.
    Federal financial assistance means any grant, cooperative 
agreement, loan, contract (other than a direct Federal procurement 
contract or a contract of insurance or guaranty), subgrant, contract 
under a grant, or any other arrangement by which the Department

[[Page 6406]]

provides or otherwise makes available assistance in the form of--
    (1) Funds;
    (2) Services of Federal personnel;
    (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; and
    (4) Any other thing of value by way of grant, loan, contract or 
cooperative agreement.
    Historic preservation programs means programs conducted by 
recipients of Federal financial assistance that have preservation of 
historic properties as a primary purpose.
    Historic Properties means those buildings or facilities that are 
eligible for listing in the National Register of Historic Places, or 
such properties designated as historic under a statute of the 
appropriate State or local government body.
    Illegal use of drugs means the use of one or more drugs, the 
possession or distribution of which is unlawful under the Controlled 
Substances Act, 21 U.S.C. 812. The term illegal use of drugs does not 
include the use of a drug taken under supervision by a licensed health 
care professional, or other uses authorized by the Controlled 
Substances Act or other provisions of Federal law.
    Individual with a disability means any person who has a disability. 
The term individual with a disability does not include an individual 
who is currently engaging in the illegal use of drugs, when the 
recipient acts on the basis of such use.
    Primary recipient means any recipient that is authorized or 
required to extend Federal financial assistance to another recipient.
    Program or activity means all of the operations of any entity 
described in paragraphs (1) through (4) of this section, any part of 
which is extended Federal financial assistance--
    (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. 7801, 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship if--
    (A) Assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) The corporation, partnership, private organization, or sole 
proprietorship 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 (s)(1), (2), or (3) of this section.
    Qualified individual with a disability means--
    (1) With respect to any aid, benefit, or service provided under a 
program or activity subject to this subpart, an individual with a 
disability who, with or without reasonable accommodations in rules, 
policies, or procedures, the removal of architectural, communication, 
or transportation barriers, or the provision of auxiliary aids or 
services, meets the essential eligibility requirements for receipt of 
services or the participation in programs or activities provided by a 
recipient; and
    (2) With respect to employment, the definition of ``qualified'' in 
the Equal Employment Opportunity Commission's regulation implementing 
title I of the Americans with Disabilities Act of 1990, at 29 CFR 
1630.2(m), applies to this subpart.
    Qualified interpreter means an interpreter who, via a video remote 
interpreting (VRI) service or an on-site appearance, is able to 
interpret effectively, accurately, and impartially, both receptively 
and expressively, using any necessary specialized vocabulary. Qualified 
interpreters include, for example, sign language interpreters, oral 
transliterators, and cued-language transliterators.
    Qualified reader means a person who is able to read effectively, 
accurately, and impartially using any necessary specialized vocabulary.
    Recipient means any State or unit of local government, any 
instrumentality of a State or unit of local government, any public or 
private agency, institution, organization, or other public or private 
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.
    Section 504 means section 504 of the Rehabilitation Act of 1973, 
Public Law 93-112, 87 Stat. 394, 29 U.S.C. 794, as amended.
    Subrecipient means an entity to which a primary recipient extends 
Federal financial assistance.
    Ultimate beneficiary is one among a class of persons who are 
entitled to benefit from, or otherwise participate in, a program or 
activity receiving Federal financial assistance and to whom the 
protections of this subpart extend. The ultimate beneficiary class may 
be the general public or some narrower group of persons.
    Video remote interpreting (VRI) service means an interpreting 
service that uses video conference technology over dedicated lines or 
wireless technology offering high-speed, wide-bandwidth video 
connection that delivers high-quality video images as provided in Sec.  
42.511.

General Nondiscrimination Requirements


Sec.  42.510   General prohibitions against discrimination.

    (a) General. No qualified individual with a disability shall, 
solely on the basis of disability, be excluded from participation in, 
be denied the benefits of, or otherwise be subjected to discrimination 
under any program or activity subject to this subpart.
    (b) Discriminatory actions prohibited. (1) A recipient may not, in 
providing any program or activity subject to this subpart directly, or 
through contractual, licensing, or other arrangements, on the basis of 
disability--
    (i) Deny a qualified individual with a disability the opportunity 
accorded others to participate in, or benefit from, the aid, benefit, 
or service;
    (ii) Afford a qualified individual with a disability 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 individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit,

[[Page 6407]]

or to reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than are provided to others unless such action is 
necessary to provide qualified individuals with disabilities or any 
class of individuals with disabilities with aid, benefits, or services 
that are as effective as that provided to others;
    (v) Deny a qualified individual with a disability an equal 
opportunity to provide services to the program or activity;
    (vi) Deny a qualified individual with a disability an opportunity 
to participate as a member of a planning or advisory board;
    (vii) Aid or perpetuate discrimination against a qualified 
individual with a disability by providing assistance to an agency, 
organization, or person that discriminates on the basis of disability 
in providing any aid, benefit, or service to beneficiaries of the 
recipient's program or activity;
    (viii) Permit the participation in the program or activity of 
agencies, organizations, or persons which discriminate against 
individuals with disabilities who participate in or benefit from the 
recipient's program; or
    (ix) Otherwise limit a qualified individual with a disability in 
the enjoyment of any right, privilege, advantage, or opportunity 
enjoyed by others receiving the aid, benefit, or service.
    (2) A recipient may not deny a qualified individual with a 
disability the opportunity to participate in any aid, benefits, or 
services that are not separate or different, despite the existence of 
permissibly separate or different aid, benefits, or services.
    (3) A recipient may not, directly or through contractual, 
licensing, or other arrangements, utilize criteria or methods of 
administration--
    (i) That have the effect of subjecting qualified individuals with 
disabilities to discrimination on the basis of disability;
    (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 individuals with disabilities; or
    (iii) That perpetuate the discrimination of another recipient if 
both recipients are subject to common administrative control or are 
departments or agencies, special purpose districts, or other 
instrumentalities of the same State or local government unit.
    (4) A recipient may not, in determining the site, or a location of 
a facility, make selections--
    (i) That have the effect of excluding individuals with disabilities 
from, denying them the benefits of, or otherwise subjecting them to 
discrimination on the basis of disability; 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 individuals with disabilities.
    (5) An entity not otherwise receiving Federal financial assistance 
but using a facility provided with the aid of Federal financial 
assistance after the effective date of this subpart is prohibited from 
discriminating on the basis of disability.
    (6) A recipient, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with disabilities 
to discrimination on the basis of disability.
    (7) A recipient may not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may a 
recipient establish requirements for any of the programs or activities 
of entities that are licensed or certified that subject qualified 
individuals with disabilities to discrimination on the basis of 
disability. The programs or activities of entities that are licensed or 
certified by a recipient are not, themselves, covered by this subpart 
unless those entities are also recipients of Federal financial 
assistance from the Department.
    (c) This subpart does not prohibit the exclusion of individuals 
without disabilities or specified classes of individuals with 
disabilities from aid, benefits, or services limited by Federal statute 
or executive order to individuals with disabilities or a different 
class of individuals with disabilities.
    (d) Nothing in this subpart prohibits a recipient from providing 
aid, benefits, or services to individuals with disabilities or to a 
particular class of individuals with disabilities beyond those required 
by this part.
    (e) Integrated setting. A recipient shall administer programs and 
activities in the most integrated setting appropriate to the needs of 
qualified individuals with disabilities.
    (f) Nothing in this subpart shall be construed to require an 
individual with a disability to accept an accommodation, aid, service, 
opportunity, or benefit provided under section 504 or this subpart 
which such individual chooses not to accept.
    (g) Reasonable accommodations. (1) A recipient shall make 
reasonable accommodations in policies, practices, or procedures when 
such accommodations are necessary to avoid discrimination on the basis 
of disability, unless the recipient can demonstrate that making the 
accommodations would fundamentally alter the nature of the program or 
activity or result in undue financial and administrative burdens.
    (2) A recipient is not required to provide a reasonable 
accommodation to an individual who meets the definition of disability 
solely under the ``regarded as'' prong of the definition of disability 
as defined in 28 CFR 35.104.
    (3) With respect to employment, the definitions and standards 
applied to ``reasonable accommodation'' and ``undue hardship'' in the 
Equal Employment Opportunity Commission's regulation implementing title 
I of the Americans with Disabilities Act, at 29 CFR 1630.2(o) and (p), 
and 1630.9, apply to this subpart.
    (h) Prohibition on surcharges. A recipient may not place a 
surcharge on a particular individual with a disability or any class of 
individuals with disabilities to cover the costs of measures, such as 
the provision of auxiliary aids, reasonable accommodations, or program 
accessibility, that are required to provide that individual or class 
with the nondiscriminatory treatment required by the Act or this 
subpart.
    (i) Prohibition on associational discrimination. A recipient shall 
not exclude or otherwise deny aid, benefits, or services of its program 
or activity to an individual because of that individual's relationship 
or association with an individual with a known disability.
    (j) Prohibition on discriminatory eligibility criteria. A recipient 
shall not impose or apply eligibility criteria that screen out or tend 
to screen out an individual with a disability or any class of 
individuals with disabilities from fully and equally enjoying any aid, 
benefit, or service unless such criteria can be shown to be necessary 
for the provision of the aid, benefit, or service being offered.
    (k) Prohibition on intimidation and retaliation. A recipient shall 
not intimidate or retaliate against any individual, with or without a 
disability, for the purpose of interfering with any right secured by 
section 504 or this subpart.
    (l) The enumeration of specific forms of prohibited discrimination 
in this subpart is not exhaustive but only illustrative.

[[Page 6408]]

Sec.  42.511  Communications.

    (a) General. (1) A recipient shall take appropriate steps to ensure 
that communications with applicants, participants, beneficiaries, 
members of the public, and companions with disabilities are as 
effective as communications with others.
    (2) For purposes of this section, ``companion'' means a family 
member, friend, or associate of an individual seeking access to a 
program, or activity of a recipient, who, along with such individual, 
is an appropriate person with whom the recipient should communicate.
    (b) Auxiliary aids and services. (1) A recipient shall furnish 
appropriate auxiliary aids and services where necessary to afford 
qualified individuals with disabilities, including applicants, 
participants, beneficiaries, companions, and members of the public, an 
equal opportunity to participate in, and enjoy the benefits of, a 
service, program, or activity, of a recipient.
    (2) The type of auxiliary aid or service necessary to ensure 
effective communication will vary in accordance with the method of 
communication used by the individual; the nature, length, and 
complexity of the communication involved; and the context in which the 
communication is taking place. In determining what types of auxiliary 
aids and services are necessary, a recipient entity shall give primary 
consideration to the requests of individuals with disabilities. In 
order to be effective, auxiliary aids and services must be provided in 
accessible formats, in a timely manner, and in such a way as to protect 
the privacy and independence of the individual with a disability.
    (c) Limitations on use of accompanying adults or children as 
interpreters.
    (1) A recipient shall not require an individual with a disability 
to bring another individual to interpret for him or her.
    (2) A recipient shall not rely on an adult accompanying an 
individual with a disability to interpret or facilitate communication 
except--
    (i) In an emergency involving an imminent threat to the safety or 
welfare of an individual or the public where there is no interpreter 
available; or
    (ii) When the individual with a disability specifically requests 
that the accompanying adult interpret or facilitate communication, the 
accompanying adult agrees to provide such assistance, and reliance on 
that adult for such assistance is appropriate under the circumstances.
    (3) A recipient shall not rely on a minor child to interpret or 
facilitate communication, except in an emergency involving an imminent 
threat to the safety or welfare of an individual or the public when 
there is no interpreter available.
    (d) Video remote interpreting (VRI) services. A recipient that 
provides qualified interpreters via VRI services shall ensure that it 
provides--
    (1) Real-time, full-motion video and audio over a dedicated high-
speed, wide-bandwidth video connection or wireless connection that 
delivers high-quality video images that do not produce lags, choppy, 
blurry, or grainy images, or irregular pauses in communication;
    (2) A sharply delineated image that is large enough to display the 
interpreter's face, arms, hands, and fingers, and the participating 
individual's face, arms, hands, and fingers, and can be seen by the 
participating individual regardless of the individual's body position;
    (3) A clear, audible transmission of voices; and
    (4) Adequate training to users of the technology and other involved 
individuals so that they may quickly and efficiently set up and operate 
the VRI.
    (e) Telecommunications. (1) Where a recipient communicates by 
telephone with applicants, participants, beneficiaries, members of the 
public, and companions with disabilities, the recipient shall 
communicate with individuals who are deaf or hard of hearing or have 
speech disabilities using telecommunication systems that provide 
equally effective communication.
    (2) When a recipient uses an automated-attendant system, including, 
but not limited to, voice mail and messaging, or an interactive voice 
response system, for receiving and directing incoming telephone calls, 
that system must provide effective real-time communication with 
individuals using auxiliary aids and services, including, but not 
limited to TTYs and all forms of FCC-approved telecommunications relay 
systems, including Internet-based relay systems.
    (3) A recipient shall respond to telephone calls from a relay 
service, established under 47 U.S.C. 225, including telephone relay, 
video relay, and Internet protocol (IP) relay in the same manner that 
it responds to other telephone calls.
    (f) Limitations. This section does not require the recipient to 
take any action that it can demonstrate would result in a fundamental 
alteration in the nature of a program or activity or in undue financial 
and administrative burdens. In those circumstances where the recipient 
believes that the proposed action would fundamentally alter the program 
or activity or would result in undue financial and administrative 
burdens, the recipient has the burden of proving that compliance with 
Sec.  42.511 would result in such alteration or burdens. The decision 
that compliance would result in such alteration or burdens must be made 
by the head of the recipient or the head's designee after considering 
all resources available for use in the funding and operation of the 
program or activity, and it must be accompanied by a written statement 
of the reasons for reaching that conclusion. If an action otherwise 
required by this section would result in such an alteration or such 
burdens, the recipient shall take any other action that would not 
result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, persons with a disability 
receive the aid, benefits, and services of the program or activity.


Sec.  42.512   Employment.

    (a) Discrimination prohibited. (1) General. No qualified individual 
with a disability shall, on the basis of disability, be subjected to 
discrimination in employment under any program or activity to which 
this subpart applies.
    (2) Employment discrimination standards. The standards used to 
determine whether paragraph (a)(1) of this section has been violated 
shall be the standards applied under title I of the Americans with 
Disabilities Act of 1990 (ADA), 42 U.S.C. 12111 et seq., and, as such 
sections relate to employment, the provisions of sections 501 through 
504 and 511 of the ADA of 1990, as amended (codified at 42 U.S.C. 
12201-12204, 12210), as implemented in the Equal Employment Opportunity 
Commission's regulation at 29 CFR part 1630. The procedures to be used 
to determine whether paragraph (a) of this section has been violated 
shall be the procedures set forth in Sec.  42.532 of this subpart.


42.513   Direct threat.

    (a) This subpart does not require a recipient to permit an 
individual to participate in or benefit from the program or activity of 
that recipient when that individual poses a direct threat to the health 
or safety of others.
    (b) In determining whether an individual poses a direct threat to 
the health or safety of others, a recipient must make an individualized 
assessment, based on reasonable judgment that relies on current medical

[[Page 6409]]

knowledge or on the best available objective evidence, to ascertain--
the nature, duration, and severity of the risk; the probability that 
the potential injury will actually occur; and whether reasonable 
accommodations in policies, practices, or procedures or the provision 
of auxiliary aids or services will mitigate the risk.
    (c) An employer does not have to employ an individual who would 
pose a direct threat as that term is defined in the Equal Employment 
Opportunity Commission's regulation implementing title I of the 
Americans with Disabilities Act of 1990, at 29 CFR 1630.2(r) and 
1630.15(b).


Sec.  42.514   Illegal use of drugs.

    (a) General. Except as provided in paragraph (c) of this section, 
``Health and drug rehabilitation services,'' this subpart does not 
prohibit discrimination against an individual based on that 
individual's current use of illegal drugs.
    (b) Non-discrimination requirement. A recipient shall not 
discriminate on the basis of illegal use of drugs against an individual 
who is not engaging in current illegal use of drugs and who--
    (1) Has successfully completed a supervised drug rehabilitation 
program or has otherwise been rehabilitated successfully;
    (2) Is participating in a supervised rehabilitation program; or
    (3) Is erroneously regarded as engaging in such use.
    (c) Health and drug rehabilitation services. (1) A recipient shall 
not deny health services, or services provided in connection with drug 
rehabilitation, to an individual on the basis of that individual's 
current illegal use of drugs, if the individual is otherwise entitled 
to such services.
    (2) A drug rehabilitation or treatment program may deny 
participation to individuals who engage in illegal use of drugs while 
they are in the program.
    (d) Drug testing. (1) This subpart does not prohibit a recipient 
from adopting or administering reasonable policies or procedures, 
including but not limited to drug testing, designed to ensure that an 
individual who formerly engaged in the illegal use of drugs is not now 
engaging in current illegal use of drugs.
    (2) Nothing in paragraph (d)(1) of this section shall be construed 
to encourage, prohibit, restrict, or authorize the conducting of 
testing for the illegal use of drugs.


Sec.  42.515   Claims of no disability.

    Nothing in this subpart shall provide the basis for a claim that an 
individual without a disability was subject to discrimination because 
of a lack of disability, including a claim that an individual with a 
disability was granted a reasonable accommodation that was denied to an 
individual without a disability.

Program Accessibility


Sec.  42.520  Discrimination prohibited.

    A recipient shall ensure that no qualified individual with a 
disability is denied the benefits of, excluded from participation in, 
or otherwise subjected to discrimination under any program or activity 
receiving Federal financial assistance because the recipient's 
facilities are inaccessible to or unusable by individuals with a 
disability.


Sec.  42.521   Existing facilities.

    (a) Accessibility. A recipient shall operate its program or 
activity so that when each part of the program or activity is viewed in 
its entirety, it is readily accessible to and usable by individuals 
with disabilities. This section does not--
    (1) Necessarily require a recipient to make each of its existing 
facilities or every part of an existing facility accessible to and 
usable by individuals with disabilities;
    (2) Require a recipient to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where the recipient believes that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the recipient has the 
burden of proving that compliance with Sec.  42.521(a) of this subpart 
would result in such alteration or burdens. The decision that 
compliance would result in such alteration or burdens must be made by 
the head of the recipient or the head's designee after considering all 
resources available for use in the funding and operation of the program 
or activity, and must be accompanied by a written statement of the 
reasons for reaching that conclusion. If an action required to comply 
with this section would result in such an alteration or such burdens, a 
recipient shall take any other action that would not result in such an 
alteration or such burdens but would nevertheless ensure to the maximum 
extent possible, that individuals with disabilities receive the 
benefits or services of the program or activity; or
    (3) Require a recipient to take any action that would threaten or 
destroy the historically significant features of a historic property.
    (b) Methods. (1) General. A recipient may comply with the 
requirements of this section through such means as, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities in 
conformance with Sec.  42.522, redesign or acquisition of equipment, 
use of accessible rolling stock or other conveyances, or any other 
methods that result in making its service, program, or activity readily 
accessible to and usable by individuals with disabilities. A recipient 
is not required to make structural changes in existing facilities where 
other methods are effective in achieving compliance with this section. 
In choosing among available methods for meeting the requirements of 
this section, a recipient shall give priority to those methods that 
serve qualified individuals with disabilities in the most integrated 
setting appropriate.
    (2) Safe harbor. For the purposes of complying with this section, 
elements that have not been altered in existing facilities on or after 
[INSERT EFFECTIVE DATE OF THE RULE], and that comply with the 
corresponding technical and scoping specifications for those elements 
in the Uniform Federal Accessibility Standards (UFAS), 49 FR 31528, 
app. A (Aug. 7, 1984), are not required to be modified to be brought 
into compliance with the requirements set forth in the 2010 Standards.
    (3) Historic preservation programs. In meeting the requirements of 
this section in historic preservation programs, a recipient shall give 
priority to methods that provide physical access to individuals with 
disabilities. In cases where a physical alteration to a historic 
property is not required because of paragraph (a)(2) or (3) of this 
section, alternative methods of achieving program accessibility 
include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with disabilities into 
or through portions of historic properties that cannot otherwise be 
made accessible; or
    (iii) Adopting other innovative methods.
    (c) Small providers. If a recipient with fewer than fifteen 
employees finds, after consultation with an individual with a 
disability seeking its services, that there is no method of complying 
with Sec.  42.521(a) other than making a significant alteration to its 
existing facilities, the recipient may, as an

[[Page 6410]]

alternative, refer the individual with a disability to alternative 
providers of available accessible services. For the purposes of this 
paragraph, in order to ensure that the services are available, the 
small provider must first determine that the alternative provider's 
services are accessible, the alternative provider is willing to provide 
the services, the services are available at no additional cost to the 
individual with a disability, and transportation costs to and from the 
alternative provider do not exceed costs to and from the small 
provider.
    (d) Written plan required for certain recipients to achieve program 
accessibility. Recipients subject to this subpart as of October 1, 
1980, and required to make structural changes in order to provide 
program accessibility, were required to develop, by January 3, 1981, a 
written plan setting forth the steps to be taken to complete the 
changes, together with a schedule for making the changes. The plan 
should have been developed with the assistance of interested persons, 
including individuals with disabilities or organizations representing 
individuals with disabilities and was to be made available for public 
inspection. The plan should have, at a minimum--
    (1) Identified physical obstacles in the recipient's facilities 
that limit the accessibility of its program or activity to individuals 
with disabilities;
    (2) Described in detail the methods that would be used to make the 
facilities accessible;
    (3) Specified the schedule for taking the steps necessary to 
achieve full accessibility under Sec.  42.521(a) and, if the time 
period of the transition plan was longer than one year, identified the 
steps that would be taken during each year of the transition period; 
and
    (4) Indicated the person responsible for implementation of the 
plan.
    (e) Notice of location of accessible facilities. (1) General. A 
recipient shall adopt and implement procedures to ensure that 
interested individuals with disabilities, including individuals with an 
intellectual disability, learning disability, vision or hearing 
disability, or other disability, can obtain information as to the 
existence and location of services, activities, and facilities that are 
accessible to and usable by individuals with disabilities.
    (2) Signs at primary entrances. A recipient shall provide signs at 
a primary entrance to each of its inaccessible facilities directing 
users to an accessible facility or a location at which they can obtain 
information about accessible facilities. The international symbol for 
accessibility shall be used at each accessible entrance of a facility.


Sec.  42.522   Program accessibility in jails, detention and 
correctional facilities, and community correctional facilities.

    (a) Applicability. This section specifically applies to a recipient 
that is responsible for the operation or management of adult and 
juvenile justice jails, detention and correctional facilities, and 
community correctional facilities, either directly or through 
contractual, licensing, or other arrangements with public or private 
entities, in whole or in part, including private correctional 
facilities.
    (b)(1) In addition to the other requirements of this subpart, a 
recipient shall ensure that qualified inmates or detainees with 
disabilities shall not, because a facility is inaccessible to or 
unusable by individuals with disabilities, be excluded from 
participation in, or be denied the benefits of, the services, programs, 
or activities of a recipient, or be subjected to discrimination by any 
recipient.
    (2) A recipient shall ensure that inmates or detainees with 
disabilities are housed in the most integrated setting appropriate to 
the needs of the individuals. Unless it is appropriate to make an 
exception, a recipient--
    (i) Shall not place inmates or detainees with disabilities in 
inappropriate security classifications because of their disabilities;
    (ii) Shall not place inmates or detainees with disabilities in 
designated medical areas unless they are actually receiving medical 
care or treatment;
    (iii) Shall not place inmates or detainees with disabilities in 
facilities that do not offer the same aid, benefits, and services as 
the facilities where they would otherwise be housed; and
    (iv) Shall not deprive inmates or detainees with disabilities of 
visitation with family members by placing them in distant facilities 
where they would not otherwise be housed.
    (3) A recipient shall implement reasonable policies, including 
physical modifications to additional cells in accordance with the 2010 
Standards, so as to ensure that each inmate with a disability is housed 
in a cell with the accessible elements necessary to afford the inmate 
access to safe, appropriate housing.


Sec.  42.523   New construction and alterations.

    (a) Design and construction. Each new facility constructed by, on 
behalf of, or for the use of a recipient shall be designed and 
constructed in such a manner that the facility is readily accessible to 
and usable by individuals with disabilities, if the construction was 
commenced after July 3, 1980.
    (b) Alteration. Each facility or part of a facility, which is 
altered by, on behalf of, or for the use of, a recipient after July 3, 
1980, 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 individuals with a disability.
    (c) Accessibility standards, compliance dates, and triggering 
events.
    (1) Applicable accessibility standards--
    (i) New construction and alterations of buildings or facilities 
undertaken on or after March 7, 1988, but before [INSERT DATE OF 
PUBLICATION OF THE FINAL RULE IN THE Federal Register] shall comply 
with the Uniform Federal Accessibility Standards (UFAS).
    (ii) New construction and alterations of buildings or facilities 
undertaken after [INSERT DATE OF PUBLICATION OF THE FINAL RULE IN THE 
Federal Register] but before [INSERT DATE ONE YEAR FROM PUBLICATION 
DATE OF THE FINAL RULE IN THE Federal Register] must comply with either 
UFAS or the 2010 Standards.
    (iii) New construction and alterations of buildings or facilities 
undertaken on or after [INSERT DATE ONE YEAR FROM PUBLICATION DATE OF 
THE FINAL RULE IN THE Federal Register] must comply with the 2010 
Standards.
    (iv) New construction and alterations of buildings or facilities 
undertaken in compliance with the 2010 Standards shall comply with the 
scoping and technical requirements for a ``public building or 
facility'' regardless of whether the recipient is a public entity as 
defined in 28 CFR 35.104 or a private entity.
    (v) Departures from particular requirements of either standard by 
the use of other methods shall be permitted when it is clearly evident 
that equivalent access to the facility or part of the facility is 
thereby provided.
    (vi) For purposes of compliance with UFAS, 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 physical 
disabilities.
    (2) Triggering events for compliance with accessibility standards. 
(i) Private entities. (A) Private entities may choose one of the 
Standards specified in paragraph (c)(1)(ii) of this section if: The 
last application for a building permit or

[[Page 6411]]

permit extension for such construction or alterations is certified to 
be complete by a State, county, or local government; or, in those 
jurisdictions where the government does not certify completion of 
applications, the last application for a building permit or permit 
extension is received by the State, county, or local government; or, 
where no permit is required, physical construction or alterations have 
commenced, on or after [INSERT PUBLICATION DATE OF THE FINAL RULE IN 
THE Federal Register] and before [INSERT DATE ONE YEAR FROM PUBLICATION 
DATE OF THE FINAL RULE IN THE Federal Register].
    (B) Private entities must comply with paragraph (c)(1)(iii) of this 
section if: the last application for a building permit or permit 
extension for such construction or alterations is certified to be 
complete by a State, county, or local government; or, in those 
jurisdictions where the government does not certify completion of 
applications, the last application for a building permit or permit 
extension is received by the State, county, or local government; or, in 
jurisdictions where no permit is required, physical construction or 
alteration has commenced, on or after [INSERT DATE ONE YEAR FROM 
PUBLICATION DATE OF THE FINAL RULE IN THE Federal Register].
    (ii) Public entities. (A) Public entities may choose one of the 
Standards specified in paragraph (c)(1)(ii) of this section if new 
physical construction or alterations commence after [INSERT DATE OF 
PUBLICATION OF THE FINAL RULE IN THE Federal Register] but before 
[INSERT DATE ONE YEAR FROM PUBLICATION DATE OF THE FINAL RULE IN THE 
Federal Register].
    (B) Public entities must comply with paragraph (c)(1)(iii) of this 
section if new physical construction or alterations commence on or 
after [INSERT DATE ONE YEAR FROM PUBLICATION DATE OF THE FINAL RULE IN 
THE Federal Register].
    (3) For the purposes of this section, ceremonial groundbreaking or 
razing of structures prior to site preparation will not be considered 
to commence or start physical construction or alterations.

     Table of Applicable Standards for Complying With 28 CFR 42.522
------------------------------------------------------------------------
 Compliance dates for new construction       Applicable standards for
            and alterations                complying with 28 CFR 42.522
------------------------------------------------------------------------
After March 7, 1988 and before [INSERT   UFAS.
 DATE OF PUBLICATION OF THE FINAL RULE
 IN THE FEDERAL REGISTER].
After [INSERT DATE OF PUBLICATION OF     UFAS or the scoping and
 THE FINAL RULE IN THE FEDERAL            technical requirements for a
 REGISTER] and before [INSERT DATE ONE    ``public building or
 YEAR FROM PUBLICATION DATE OF THE        facility'' in the 2010
 FINAL RULE IN THE FEDERAL REGISTER].     Standards.
On or after [INSERT DATE ONE YEAR FROM   The scoping and technical
 PUBLICATION DATE OF THE FINAL RULE IN    requirements in the 2010
 THE FEDERAL REGISTER].                   Standards for a ``public
                                          building or facility''.
------------------------------------------------------------------------

    (4) Compliance with the Architectural Barriers Act of 1968. Nothing 
in this section relieves recipients whose facilities are covered by the 
Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-57), 
from the responsibility of complying with the requirements of that Act 
and any implementing regulations.

Procedures


Sec.  42.530   Administrative procedures for recipients.

    (a) Voluntary action. A recipient may take steps, in addition to 
any action that is required by this subpart, to increase the 
participation of qualified individuals with disabilities in the 
recipient's program or activity.
    (b) Self-evaluation. (1) A recipient was required, by July 3, 1981, 
to evaluate and modify its policies and practices that did not meet the 
requirements of this subpart. During this process, the recipient was 
required to seek the advice and assistance of interested persons, 
including individuals with disabilities or organizations representing 
individuals with disabilities. During this period and thereafter, the 
recipient was required to take any necessary remedial steps to 
eliminate the effects of discrimination that resulted from adherence to 
these policies and practices.
    (2) A recipient employing 50 or more persons and receiving Federal 
financial assistance from the Department of $25,000 or more was 
required, for at least three years following completion of the 
evaluation required under paragraph (c)(1) of this section, to maintain 
on file, make available for public inspection, and provide to the 
Department on request--
    (i) A list of the interested persons consulted;
    (ii) A description of areas examined and problems identified; and
    (iii) A description of modifications made and remedial steps taken.
    (c) Designation of responsible employee. A recipient employing 50 
or more persons and receiving Federal financial assistance from the 
Department of $25,000 or more shall designate at least one person to 
coordinate compliance with this subpart.
    (d) Adoption of grievance procedures. A recipient employing 50 or 
more persons and receiving Federal financial assistance from the 
Department of $25,000 or more and receiving Federal financial 
assistance from the Department of $25,000 or more shall adopt grievance 
procedures that incorporate appropriate due process standards (e.g., 
adequate notice, fair hearing) and provide for the prompt and equitable 
resolution of complaints alleging any action prohibited by this subpart 
except that such procedures need not be established with respect to 
complaints from applicants for employment. Any individual may file a 
complaint with the Department in accordance with the procedures at 
Sec.  42.532 without having first used a recipient's grievance 
procedures.
    (e) Notice. (1) A recipient employing 50 or more persons and 
receiving Federal financial assistance from the Department of $25,000 
or more shall, on a continuing basis, notify participants, 
beneficiaries, applicants, employees and unions or professional 
organizations holding collective bargaining or professional agreements 
with the recipient that it does not discriminate on the basis of 
disability in violation of section 504 and this subpart. The 
notification shall state, where appropriate, that the recipient does 
not discriminate in its programs or activities with respect to access, 
treatment, or employment. The notification shall also include 
identification of the person responsible for coordinating compliance 
with this subpart and where to file section 504 complaints with the 
Department and, where applicable, with

[[Page 6412]]

the recipient. Methods of initial and continuing notification may 
include the posting of notices, publication in newspapers and 
magazines, publication on the recipient's internet Web site, placement 
of notices in the recipient's publications, and distribution of 
memoranda or other written communications.
    (2) Recruitment materials or publications containing general 
information that a recipient makes available to participants, 
beneficiaries, applicants, or employees shall include a policy 
statement of nondiscrimination on the basis of disability.
    (f) The Department may require any recipient with fewer than 50 
employees and receiving Federal financial assistance from the 
Department of $25,000 or more to comply with paragraphs (c) through (e) 
of this section.


Sec.  42.531  Assurances required.

    (a) Assurances. (1) General. Every application for Federal 
financial assistance covered by this subpart shall contain an assurance 
that the program or activity will be conducted in compliance with the 
requirements of section 504 and this subpart. Each component within the 
Department that provides Federal financial assistance shall specify the 
form of the foregoing assurance and shall require applicants for 
Department financial assistance to obtain like assurances from 
subrecipients, contractors and subcontractors, transferees, successors 
in interest, and others connected with the program or activity. Each 
component shall specify the extent to which an applicant will be 
required to confirm that the assurances provided by secondary 
recipients are being honored. Each assurance shall include provisions 
giving notice that the United States has a right to seek judicial 
enforcement of section 504, this subpart, and the assurance.
    (2) Assurances from government departments or agencies. Assurances 
from departments or agencies of State and local governments described 
in paragraph (1) of the definition of ``program or activity'' at Sec.  
42.503 shall extend to any other department or agency of the same 
governmental unit if the policies of the other department or agency 
will affect the aid, benefits, or services for which Federal financial 
assistance is requested.
    (3) Assurances from other entities. The assurances required with 
respect to any entity described in paragraph (3)(ii) of the definition 
of ``program or activity'' at section 42.503 shall be applicable to the 
entire plant or other comparable, geographically separate facility. The 
assurances required with respect any other entity described in 
paragraph (2) or (3) of the definition of ``program or activity'' at 
Sec.  42.503 shall be applicable to the entire entity.
    (b) Duration of obligation. Where the Federal financial assistance 
is to provide or is in the form of real or personal property or 
improvements, the assurance will obligate the recipient and any 
transferee for the period during which the property is being used for 
the purpose for which the Federal financial assistance is extended or 
for another purpose involving the provision of similar services or 
benefits, or for as long as the recipient retains ownership or 
possession of the property, whichever is longer. When the Federal 
financial assistance is not in the form of real or personal property or 
improvements, the assurance will obligate the recipient for the period 
during which Federal financial assistance is extended.
    (c) Covenants. With respect to any transfer of real property, the 
transfer document shall contain a covenant running with the land 
assuring nondiscrimination on the condition described in paragraph (b) 
of this section. Where the property is obtained from the Federal 
Government, the covenant may 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.
    (d) Remedies. The failure to secure either an assurance or a 
sufficient assurance from a recipient shall not impair the right of the 
Department to enforce the requirements of section 504 and this subpart.


Sec.  42.532   Compliance and enforcement procedures.

    (a)(1) The procedural provisions applicable to title VI of the 
Civil Rights Act of 1964, 28 CFR 42.106-42.110, apply to this subpart, 
except that the provision contained in Sec.  42.108(c)(3) and Sec.  
42.110(e) that requires the Attorney General's approval before the 
imposition of any sanction against a recipient, does not apply to 
programs or activities funded by a grant-making component of the 
Department. The applicable provisions contain requirements for 
compliance information (Sec.  42.106), conduct of investigations (Sec.  
42.107), procedure for effecting compliance (Sec.  42.108), hearings 
(Sec.  42.109), and decisions and notices (Sec.  42.110). See appendix 
C.
    (2) In the case of programs or activities funded by a grant-making 
component of the Department, the requirement to provide access to 
sources of information pursuant to 28 CFR 42.106(c) may be enforced 
using the procedures cited in paragraph (a)(1) of this section or using 
the provisions of section 803(a) of title I of the Omnibus Crime 
Control and Safe Streets Act, as amended by the Justice System 
Improvement Act of 1979, Public Law 96-157, 93 Stat. 1167.
    (b) In the case of programs or activities funded by a grant-making 
component of the Department, the timetables and standards for 
investigation of complaints and for the conduct of compliance reviews 
contained in Sec.  42.205(c)(1) through (c)(3) and Sec.  42.206(c) and 
(d) are applicable to this subpart except that any finding of 
noncompliance shall be enforced as provided in paragraph (a) of this 
section. See appendix D.
    (c) Remedial action. (1) If the Department finds that a recipient 
has discriminated against an individual on the basis of disability in 
violation of section 504 or this subpart, the recipient shall take such 
remedial action the Department considers necessary to overcome the 
effects of the discrimination.
    (2) The Department may, where necessary to overcome the effects of 
discrimination in violation of section 504, or this subpart, require a 
recipient to take remedial action--
    (i) With respect to individuals with disabilities who are no longer 
participants in the recipient's program or activity but who were 
participants in the program when such discrimination occurred; and
    (ii) With respect to individuals with disabilities who would have 
been participants in the program had the discrimination not occurred.
    (d) Complaints of violations of section 504 by recipients of 
Federal financial assistance from the Department should be filed with 
the Office for Civil Rights at the Office of Justice Programs.

Appendix A to Subpart G of Part 42--Federal Financial Assistance 
Administered by the Department of Justice to Which This Subpart Applies

    Note: Failure to list a type of Federal assistance in appendix A 
shall not mean, if section 504 is otherwise applicable, that a 
program or activity is not covered.


    Editorial Note:  For the text of appendix A to subpart G, see 
appendix A to subpart C of this part.


[[Page 6413]]



Appendix B to Subpart G of Part 42--[Reserved]

Appendix C to Subpart G of Part 42--Department Regulations Under Title 
VI of the Civil Rights Act of 1964 (28 CFR 42.106-42.110) Which Apply 
to This Subpart

    Editorial Note:  For the text of appendix C, see Sec. Sec.  
42.106 through 42.110 of this part.

Appendix D to Subpart G of Part 42--OJARS' Regulations Under the 
Omnibus Crime Control and Safe Streets Act, as Amended, Which Apply to 
This Subpart (28 CFR 42.205 and 42.206)

    Editorial Note:  For the text of appendix D, see Sec. Sec.  
42.205 and 42.206 of this part.


    Dated: January 11, 2017.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2017-01057 Filed 1-18-17; 8:45 am]
 BILLING CODE 4410-13-P