by Peter Coppelman
Reprinted from The Independent, Summer 1977
Section 504 of the Rehabilitation Act of 1973 provides:
No otherwise qualified handicapped individual in the United States? shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Each major Federal agency was directed to adopt regulations implementing Section 504 with respect to programs receiving money from that particular agency. It was decided that the Department of Health, Education, and Welfare would be the lead Federal agency, so that it would adopt regulations first, and other Federal agencies would follow its example. After a monumental struggle… (see 504 History), HEW Secretary Joseph Califano finally signed regulations implementing Section 504 on April 28, 1977. The purpose of this article is to give an overview of the major provisions of the HEW regulations.
At the outset, it is worth noting that Secretary Califano issued not only the regulations themselves, but also a “Preamble” to the regulations which gives a concise statement of the background, rule making history, and basic provisions of the regulations, and a detailed “Analysis” of the final regulation in Appendix A to the regulation, which compares the regulation signed on April 28, 1977 with the January 21, 1977 proposed regulation.[1] This “Analysis” is a useful document because it: (1) explains any departures from the January 21st regulation (enactment of which had been demanded by the demonstrators who took over the HEW building in San Francisco), (2) gives further explanations regarding HEW’s understanding of what the specific regulatory language means and, (3) in some cases, gives examples of how the regulations might apply to various kinds of factual situations.
After the issuance of the January 21st regulations, a number of controversial issues surfaced which indicated to groups advocating on behalf of the disabled that HEW might seriously water down the January 21st regulations. These issues included whether separate-but-equal education would be allowed for handicapped children, whether various institutions of higher education could establish “consortia” to meet their obligations under Section 504, whether drug addicts and alcoholics would be included as disabled individuals, and whether HEW would allow otherwise covered institutions to obtain waivers of their obligations. The “Analysis” issued with the regulations explains how and why decisions were reached regarding these controversial issues.
The regulation is divided into the following subparts:
- Subpart (A) General Provisions
- Subpart (B) Employment Practices
- Subpart (C) Program Accessibility
- Subpart (D) Elementary and Secondary Education
- Subpart (E) Post Secondary Education
- Subpart (F) Health, Welfare, and Social Services
- Subpart (G) Enforcement Procedures
Subparts (A), (B), (C), and (G) apply to all recipients of Federal financial assistance from HEW. Subparts (D), (E), and (F) impose additional compliance requirements on specific types of institutions.
Subpart (A) – General Provisions
Subpart (A) sets forth the definitions which are used throughout the regulations and specifies in general terms the types of discriminatory actions against the disabled which are prohibited. Essentially, no recipient or applicant for federal financial assistance (from HEW) is permitted to discriminate against “qualified handicapped persons”. A “handicapped person” is not only a person who can prove that he has a mental or physical impairment which substantially limits one or more of his major life activities, but also anyone who either has a record of such an impairment in his past or is regarded as having such an impairment. The definition includes drug addicts and alcoholics. In the employment context a “qualified handicapped person” is a person who can perform the functions of the job in question with “reasonable accommodations” (discussed below). In the school context, a “qualified handicapped person” is any handicapped person who otherwise would be entitled to attend the school in questions. Recipients are forbidden directly or indirectly from providing any aid, benefit, or service which is not equal to that afforded non-handicapped persons, or is not as effective as that afforded such persons. The concept of providing “separate but equal” services is specifically rejected, except as a measure of last resort. In other words, services must be provided in the “most integrated setting appropriate” to the handicapped person’s needs. Separate services are not permitted at all “unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others”.[2]
Recipients must provide assurances to HEW that their programs will comply with all requirements of Section 504. If recipients employ 15 or more persons they are also required to adopt grievance procedures to resolve complaints alleging violations of the requirements of the regulations. These grievance procedures must comply with “appropriate due process requirements”[3], although the regulations do not specify what types of due process procedures might be appropriate. It is important to note that there is no requirement in the regulations that grievance procedures which may be set up by a recipient be exhausted before complaints are taken to the Department. Further, these larger recipients are required to notify participants, applicants, and employees on an ongoing basis that they will not discriminate on the basis of handicap.
Subpart (A) further requires that every recipient covered by the regulations has to perform a self-evaluation within one year. This evaluation must be done “with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons”.[4] The purpose of the self-evaluation is to analyze current policies and practices to see if they conform with the Act, and to set forth appropriate steps which will be taken to eliminate any discrimination that is revealed during the course of the self-evaluation.
Finally, Subpart (A) sets forth the remedial action that the Director of the Department can take whenever he finds that a recipient has discriminated against handicapped persons in violation of Section 504. The kind of remedial actions that might be taken can include an order to provide services to persons previously discriminated against, to reinstate employees, and to develop a remedial action plan.
Reference to any concept of “affirmative action” has been deleted in the regulations. Instead a more innocuous and probably meaningless term, “voluntary action” has been substituted. Recipients are allowed to take “voluntary action” beyond what may be required by the regulations to overcome past discrimination. Other than the self-evaluation requirement, there is no affirmative action obligation imposed upon recipients.
Subpart (B) – Employment Practices
Subpart (B) of the regulations prohibits discrimination against qualified handicapped persons in any aspect of employment, including recruitment, hiring, rates of pay, promotion, training, fringe benefits, and any other term of employment, including social or recreational programs sponsored by an employer. In addition, recipients are required to make “reasonable accommodations” to qualified handicapped persons unless the recipient can demonstrate that accommodation would impose an “undue hardship” on the operation of its program. The types of accommodation which may be required include making facilities accessible to and usable by handicapped persons and even job restructuring, provision of readers or interpreters, and modification of equipment to meet the particular needs of a qualified handicapped person. Whatever accommodation will impose an “undue hardship” is determined on a case-by-case basis by looking at the recipient’s size, the type of the recipient’s operation, and the nature and the cost of the accommodation which may be needed. In other words, there will have to be a determination as to whether a particular recipient will be required to make a “reasonable accommodation” for a specific handicapped person, or whether the recipient can avoid making such accommodation because it would impose an “undue hardship”. Thus, for example, a large school district or social welfare agency might be required to provide a reader for a blind employee or an interpreter for a deaf employee, while to impose a similar requirement on a small day care center would constitute an “undue hardship”.
It should be noted in passing that a number of recipients who are covered under Section 504 are also covered by Section 503 of the Rehabilitation Act. Section 503 prohibits discrimination against the handicapped by employers having government contracts in excess of $2,500 and imposes affirmative action requirements on employers having contracts in excess of $50,000. Section 503 is enforced by the Department of Labor. The Section 503 regulations require “reasonable accommodation” unless such accommodation would impose an “undue hardship”. Although the language of the Section 503 and Section 504 regulations is not identical, the Secretary of HEW has indicated that it is his intent to make sure that the obligation imposed by the two regulations is the same.[5]
The regulations governing employment further inhibit employers from using tests and selection criteria that are not job related which would tend to screen out handicapped persons. If it can be shown that an employment test does substantially limit the opportunities of handicapped persons for employment, then the burden shifts to the employer to show that the test is job related.
There is a rather confusing regulation concerning pre-employment inquiries. Although the regulation provides that a recipient cannot conduct a pre-employment medical examination or make a pre-employment inquiry of an applicant as to whether the applicant is handicapped, the employer may make pre-employment inquiries into the applicant’s ability to perform job related functions.[6] Thus, the analysis accompanying the regulation indicates that an employer may not ask if an applicant is visually impaired but may ask if the person has a current driver’s license (assuming that a driver’s license is a necessary qualification of the job). Pre-employment medical examinations are permitted, so long as all applicants for employment have to undergo such medical examination, and the results are confidential.
Subpart (C) – Program Accessibility
Different rules apply regarding accessibility, depending upon whether we are dealing with new construction or alteration of existing facilities. The requirements are straight-forward and direct: any facility or part of a facility constructed after the effective date of the regulations must be readily accessible to handicapped persons. In addition, any new construction which is performed on an existing facility or part of a facility which could affect the usability of the facility by the handicapped must, to the maximum extent feasible, be altered in such a way as to make the facility accessible to handicapped persons.[7]
As to existing facilities, recipients have up to three years to make facilities accessible. However, within six months of the effective date of the regulations, these recipients have to develop a transition plan which will analyze their current facilities and set forth the necessary steps to make the facilities accessible within three years. In developing the transition plan, once again, the recipients are mandated to enlist the assistance of interested persons “including handicapped persons or organizations representing handicapped persons”.[8] There is an exception for recipients who have fewer than 15 employees. If this small provider of services cannot make his facility accessible by any means other than significant alterations, then the recipient may, as an alternative, refer a handicapped person to another provider of services whose facility is accessible.
An important qualification is that the accessibility requirement applies to each program or activity “when viewed in its entirety”[9] In other words, every building does not have to be accessible as long as the program as a whole is accessible. What this means in practice remains to be seen. However, the analysis accompanying the regulations specifically rejects the “consortia” idea which had been proposed by some institutions of higher education. The consortia approach would have permitted different universities in a geographical area to pool their resources to make one accessible program for handicapped persons, rather than having each university make its programs accessible. Similarly, the Analysis notes that it will not be permissible to make only one facility in a public school district accessible if the result is to segregate all handicapped students in a single setting.[10]
Subpart (D) – Elementary and Secondary Education
Subpart (D) imposes sweeping requirements on all pre-school, elementary, and secondary education facilities which receive HEW funding. The basic requirement is that schools must provide a free appropriate public education to each qualified handicapped person in its jurisdiction, regardless of the nature or severity of the person’s handicap. Further, handicapped students are to be educated with non-handicapped students in the regular educational environment “to the maximum extent appropriate to the needs of the handicapped person”, unless the school can demonstrate that the education of the handicapped person cannot be achieved in the regular environment with the use of supplementary aids and services.[11] Where necessary, a school district covered by the regulation may refer the handicapped person to a program other than one that it operates, but if it does so, the district remains financially responsible for transportation to the facility. If residential care is required, the district must cover the cost of all non-medical care and room and board as well. The requirement that handicapped students be educated with non-handicapped students to the maximum extent appropriate extends as well to non-academic and extra-curricular services, and activities such as meals and recess periods. Nor may a recipient discriminate against handicapped persons in providing physical education courses and athletic programs. Qualified handicapped students are required to receive an equal opportunity to participate in these activities.
The regulation sets forth elaborate safeguards regarding evaluation and placement to protect against the danger of students being misclassified as handicapped or incorrectly placed because of inappropriate selection, administration, or interpretation of evaluation materials. Thus, safeguards must be established to assure that tests and other evaluation materials are validated, tailored to assess specific areas of educational need, and administered so as to assure that the test results will indeed reflect the student’s aptitude or achievement level, rather than reflecting a student’s impaired sensory, manual, or speaking skills. Periodic evaluations are required to make sure that any special placement remains appropriate. In addition, schools must establish procedural safeguards with respect to students whom it intends to select out for special placement. These procedural safeguards include notice, an opportunity for parents to examine records, an impartial hearing which allows for a representation by counsel, and a review procedure.[12]
Private schools which receive HEW money are also prevented from discriminating against qualified handicapped persons. Private schools may not charge handicapped persons of more for the provision of appropriate education than non-handicapped persons except to the extent “that any additional charge is justified by a substantial increase in cost to the recipient”.[13]
Subpart (E) – Post-Secondary Education
Subpart E covers all aspects of post-secondary or college education including admission, recruitment, treatment of students, academic adjustment, housing, financial and employment assistance of students, and non-academic services. Post-secondary educational institutions cannot discriminate in their admissions policies against qualified handicapped persons. Thus, admissions tests may not be used that have a disproportionate adverse effect on handicapped persons, and must be administered in such a way as to insure that the test accurately reflects the applicant’s aptitude and achievement level, rather than any sensory, manual or speaking impairment. Pre-admission inquiries as to whether an applicant is handicapped are barred by the regulations.
Handicapped persons may not be excluded, or in any way denied, the benefits of any of the services provided by a covered post-secondary educational institution, including health, insurance, counseling, physical education, and other extra-curricular activities. Further, recipients are required to make modifications to their academic requirements to accommodate the needs of handicapped persons, such as changing the length of time for completion of degree requirements, and substituting specific courses required for the completion of degree requirements. Recipients must take such steps as are necessary to provide auxiliary aides such as readers, interpreters, and taped texts to assure that handicapped students may participate in educational programs. However recipients do not have to provide attendants, individually prescribed devices, readers for personal use for study, or other devices or services of a personal nature.
If an institution provides housing to non-handicapped students, it must provide “comparable, convenient and accessible housing to handicapped students at the same cost as to others”.[14]
Financial assistance may not be provided on a discriminatory basis. An educational institution that assists any agency or person providing employment opportunities to its students has the obligation of making sure that these employment opportunities do not discriminate against handicapped students. In its counseling and placement services, the institution must make certain that qualified handicapped students are not directed toward more restrictive career objectives than non-handicapped students with similar interests and abilities. Finally, if the educational institution provides “significant assistance” to fraternities, sororities or other social organizations, the institution must make sure that these organizations do not permit discrimination against handicapped students.
Subpart (F) – Health, Welfare, and Social Services
Subpart (F) is a short section which applies to any health, welfare and other social service programs that receive federal financial assistance. Generally, this subpart says that services may not be denied to handicapped persons because of their handicap; nor may services be provided that are not equal to, or as effective as, benefits and services provided to non-handicapped persons. Specifically, the regulation requires hospitals to establish procedures insuring effective communication with hearing-impaired persons, and requires recipients who employ 15 or more persons to provide appropriate auxiliary aids to persons with impaired sensory, manual or speaking skills. Hospitals and out-patient facilities are not permitted to discriminate against drug addicts and alcoholics. If a recipient operates a program for persons who are institutionalized because of a handicap, it is required to insure that every handicapped person receives an appropriate education.
Subpart (G) – Enforcement Procedures
At least on an interim basis, the enforcement procedures for Section 504 are the same as those used to enforce Title VI of the Civil Rights Act.[15] The enforcement agency is the Office of Civil Rights (OCR) in HEW. At present OCR is overworked and understaffed. In addition, the enforcement procedures allow for little or no input by complainants. The President has stated that he intends to revise and consolidate the federal government’s procedures for enforcing all of the civil rights laws. Hopefully, the new procedures will be stronger and give complainants more opportunity to participate in the complaint process.
Conclusion
Whether Section 504 will be a strong civil rights law for the handicapped or just another empty promise remains to be seen. Secretary Califano said when he signed the regulations:
“Section 504 established a mandate to end discrimination and to bring handicapped persons into the mainstream of American life. The Secretary intends vigorously to implement and enforce that mandate.”[16]
However, the history of the struggle to compel the Secretary to issue the 504 regulations indicates that vigilance by handicapped persons and advocates for the rights of handicapped persons will be necessary to assure that the promise of the regulations is fulfilled.
Endnotes
[1] See Federal Register, vol. 42, no. 86, pp. 22676f (hereafter cited as “Federal Register”)
[2] Sec. 84.4, b, 1, iv.
[3] Sec. 84.7, b.
[4] Sec. 84.6, c, 1, i.
[5] Sec. 504, Regs. Appendix A, “Federal Register,” p. 22688.
[6] Sec. 84.14, a.
[7] Sec. 84.23.
[8] Sec. 84.22, e.
[9] Sec. 84.22, a.
[10] Sec. 504 Regs., Appendix A, “Federal Register,” p. 22689.
[11] Sec. 84.34, a.
[12] Sec. 84.36.
[13] Sec. 84.9, b.
[14] Sec. 84.5, a.
[15] Sec. 45, Code of Federal Register, pts. 80, 81.
[16] Preamble to Sec. 504 Regs., “Federal Register,” p. 22676.
Last updated April 11, 1997 by Dorothy Dillon & Jean Nandi