ML23156A112
| ML23156A112 | |
| Person / Time | |
|---|---|
| Issue date: | 08/28/1984 |
| From: | NRC/SECY |
| To: | |
| References | |
| PR-004, 49FR34138 | |
| Download: ML23156A112 (1) | |
Text
{{#Wiki_filter:ADAMS Template: SECY-067 DOCUMENT DATE: 08/28/1984 TITLE: PR-004 - 49FR34138 - ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN FEDERALLY CONDUCTED PROGRAMS (NO SIGN DATE) CASE
REFERENCE:
PR-004 49FR34138 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete
PAGE 1 OF 2 STATUS OF RULEMAKING RECORD 1 OF 1 PROPOSED RULE: PR-004 RULE NAME: ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF H ANDICAP IN FEDERALLY CONDUCTED PROGRAMS (NO SIGN D ATE) PROPOSED RULE FED REG CITE: 49FR34138 PROPOSED RULE PUBLICATION DATE: 08/28/84 NUMBER OF COMMENTS: 7 ORIGINAL DATE FOR COMMENTS: I I EXTENSION DATE: I I FINAL RULE FED. REG. CITE: 51FR22880 FINAL RULE PUBLICATION DATE: 06/23/86 NOTES ON: VOLUME 1(8/28/84 - 3/20/85). (NO FR SIGN DATE) ATUS : FILE LOCATED IN P-1 RULE: PRESS PAGE DOWN OR ENTER TO SEE RULE HISTORY OR STAFF CONTACT PRESS ESC TO SEE ADDITIONAL RULES, (E) TO EDIT OR (S) TO STOP DISPLAY PAGE 2 OF 2 HISTORY OF THE RULE PART AFFECTED: PR-004 RULE TITLE: ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF H ANDICAP IN FEDERALLY CONDUCTED PROGRAMS (NO SIGN D ATE) OPOSED RULE PROPOSED RULE DATE PROPOSED RULE
- CY PAPER: SRM DATE: I I SIGNED BY SECRETARY:
DOCKET NO. PR-004 (49FR34138) In the Matter of ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF H ANDICAP IN FEDERALLY CONDUCTED PROGRAMS (NO SIGN D ATE) DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT -10/01/84 09/27/84 COMMENT OF MINNESOTA STATE COUNCIL FOR HANDICAPPED (SUSAN LASOFF) ( *> 10/24/84 10/23/84 COMMENT OF PARALYZED VETERANS OF AMERICA (ARLENE J. BATTIS) ( 2) 11/28/84 11/20/84 COMMENT OF ASSOCIATION FOR RETARDED CITIZENS (ARC) (CHARLES W. JELLEY) ( 3) 12/24/84 12/20/84 COMMENT OF NATIONAL CENTER FOR LAW &THE DEAF (KAREN PELTZ STRAUSS ET AL) ( 4) 12/24/84 12/21/84 COMMENT OF PUBLIC INTEREST LAW CENTER OF PHILA. (TIMOTHY M. COOK ET AL) ( 5) - 12/26/84 03/25/85 12/21/84 03/20/85 COMMENT OF DEAF COUNSELING, ADVOCACY & REFERRAL AGY (NICHOLAS LANZA) ( (TIMOTHY M. COOK) ( 6) COMMENT OF PUBLIC INTEREST LAW CENTER OF PHILA. 7)
PUBLIC iNTEREST LAW CENTER OF PHILADELPHIA ICO !~ THOMAS K. GILHOOL CHIEF COUNSEL OQ(;t-;ETEO USNliC JEROME BAL TEA MICHAEL CHURCHILL FRANK J. LASKI
*as * , 2s Alo :49 1315 WALNUT ST., suiribt113a:PHIL.A~ 191Q . 215
- PE 5-7200 DAVID G. DAVIS STANLEY R. WOLFE EDWIN D. WOLF ADMINISTRATIVE OFFICER CHAIRMAN OF THE BOARD EXECUTIVE DIRECTOR F1CE "IJ:' ~ l- 1:. iAk' 1974-1976 J:KEi .. ERV C
..; p. .,_'
March Secretary U. S. Nuclear Regulatory Commission 1717 H Street, N.W. Washington, DC 20555 Attention: Docketing and Service Branch
Dear Sir/Madam:
The attached supplemental comments pertain to your notice of proposed rulemaking of August 28, 1984 concerning your enforcement regulation for Section 504 of the Rehabilitation Act of 1973. They are submitted out of time in order to bring to your attention an important legal development that occurred after the close of your comment period. Very truly yours, Timothy M. Cook TMC/pjk Enclosure AFFILIATED WITH LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW
.: *'r U. $. NUCL E ? REGU L. TORY C0MM ISSIO(i DOC: ~ 5[ r - E R'NCH Or t, L
Postr , h Cc;, f? c Add I
~3/s?--. * '2..
~peci,. u
~(J)s, ~*~=*
Notice of Pr o posed Rulemaking: En force ment of Nondiscrimination o n the Basi s of Han dicap in Federally Conducted Programs (49 Fed. Reg. 34132 (August 28, 1984)) Supplemental Comments of Advocacy, Inc., Disabilities Unlimited, Disabled in Action of Baltimore, Disabled in Action of Kentucky, Disabled in Action of New Jersey, Disabled in Action of New York, Disabled in Action of Pennsylvania, Disabled in Government, District of Columbia Services for Independent Living, Federation of Recipients with Activism Regarding Disabilities, Handicaps Unlimited of Virginia, Independence Center, MH/MR Consumer Advocates of Bucks County, Inc., Michigan Protection an d Advocacy Services for Develop-mentally Disabled Citizens, Open Doors for the Handi-capped of Pennsylvania, The Allegheny Accessibility Coalition, The Association for the Severely Handicap-ped, The Atlantis Comm u ~ity, The California Disability Rights Union, The Chicago Council for Disability Rights, The c *olorado Coalition for Persons with Disabilities, The Department of Justice Handicapped Employees Association, The Florida Council of Handicap-ped Organizations, The Georgia State Advocacy Office, The Handicapped Advocacy Network of Delaware, Inc., The Maryland Alliance of Advocates of the Handicapped, The National Council of Independent Living Programs, The National Spinal Cord Injury Association, The New York State Coalition of People with Disabilities, The North Carolina Alliance of Disabled and Concerned Citizens, The Pennsylvania Coalition of Citizens with Disabili-ties, The Pennsylvania Developmental Disabilities Advocacy Network, The Philadelphia Resources for Living Independently Association, The Spina Bifida Associa-tion, The Southeastern Wisconsin Center for Independent Living, The Tennessee Coalition of Citizens with Disabilities, The Vermont Center for Independent Living, Vermont Developmental Disabilities Protection and Advocacy, The Wisconsin Disability Coalition, The Wisconsin Governor's Committee for People with Disabil-ities, The World Institute on Disability THOMAS K. GILHOOL FRANK J. LASKI TIMOTHY M. COOK JUDITH A. GRAN Public Interest Law Center of Philadelphia 1315 Walnut Street, Su i te 1632 Philadelphia, PA 19107 Attorneys for Commen t ers
We submit these brief supplemental comments in order to bring to your attention an important Supreme Court decision, Alexander v. Choate, 105 S.Ct. 712 (1985), affecting the vali d ity of the "undue burden" provision of your proposed Section 504 regulations. Because this case was decided following the close of your comment period, we were unable to include a discussion of this case in our previously submitted detailed comments. In a unanimous decision, the Alexander Court removed any doubt about the validity of the original HEW recipient regulation, 45 C.F.R. part 84, and the other recipient regulations requiring program accessibility without waivers for undue burdens." The Court "recognized these regulations as an importait source of guidance on the meaning of Sec. 504," 105 S.Ct. at 722 n.24, and noted its earlier "holding" in Consolidated Rail Corp. v. Darrone, 104 S.Ct. 1248 (1984), "that 1978 Amendments to the [Rehabilita-tion] Act were intended to codify the regulations enforcing Sec. 504," 105 S.Ct. at 722-23 n.24. The Alexander Court went even further, specifically quoting with approval the very provisions of the recipient regulations that your proposed regulations now--erroneously--claim are ultra vires. The Court flatly stated that the "regulations implementing Sec. 504 are consistent with the view that reasonab l e adjustments in the nature of the benefit offered must at times be made to assure
meaningful access," and quoted with specific approval 45 C.F.R. Sec. 84.23, which it described as "requiring that existing facilities eventually be operated so that a program or activity inside is, 'when viewed in its entirety,' readily accessible ***. " 105 S.Ct. at 721 n.21. The Court also concluded that "elimination of architectural barriers was one of the central aims" of Congress in enacting Section 504. Id. at 719. As noted above, the Alexander Court specifically held that the current program accessibility regulations for grantees, the ones without any waiver provision for "undue burdens" "are consistent with [its] view [of Davis] that reasonable adjustments in the nature of the benefit offered must at times be made to assure meaningful access." Id. at 721 n.21. The agency's proposed regulation, by falling short of this requirement, "effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled." Id. at 721. Respectfully submitted,
~Jc__~
THOMAS K. GILHOOL FRANK J. 7\SKI Q .ua~GRAN JliDITH A. {}_..-Ab-~-
~
TIMOTHY M. Public Interest Law Center of Philadelphia 1315 Walnut Street, Suite 1632 Philadelphia, PA 19107 (215)735-7200 March 20, 1985 Attorneys for Commenters
- 3 -
) CKEi 1~UM8£1tpff*_;.*-'A /71
' I I FO RULE -r. ....,. ((el
(~9 ne 41.JB.
~
DCARA Deaf Counseling, Advocacy, and Referral Ag~~fc
~
fl 1, HEADQUARTERS 125 Parrott Street
- San Leand ro, CA 94577 (415) 895-2430, 31 (Voice)
- 895-2432 (TTY)
December 21, John F Levesque Executive Director Secretary BOARD OF DIRECTORS U.S. Nuclear Regulatory Comm. 1717 H Street NW Ronald Herbold Washington, D. C. 20555 President Diane Morton RE: Comments on proposed rulemaking Vice President "Enforcement of of Nondiscrimination At Fortney on the Basis of Handicap in Federally w srary Conducted Programs" (49 Fed.Reg. 34132, Dale Ritter August 28, 1984) Treasurer
Dear Secretary:
Thom Allison Steve Bock Ron Burdett The Deaf Counseling, Advocacy and Referral Agency Rhoda Clark Edward Cossart (DCARA) submits these comments to the above referenced William Cutler Hazel Davis proposed rules. DCARA is a soc i al service agency providing Al Duncan assistance to the more than 350,000 hearing-impaired persons Norbert Enos Joseph Faria in the ten county San Francisco Bay Area through its offices Susan Frankovich in San Leandro, Oakland, San Jose, and San Mateo. James Gatehouse Richard Hough Dale Ice We commend your Agency for publishing these proposed Leo Jacobs Jack Lamberton rules . Although some or even many of the agencies joining Daniel Langholtz together to publish these rules may have no present contact Steve Longo Lynch with the disabled, publishing them is nonetheless important s Miller because it reinforces the Federal policy behind Section 504
- Rogers Lawrence Siegel that all of our society is to be open on an equal basis to Dean Swaim the disabled .
Pat Z1nkov1ch At the same time, however, we feel that your Agency could have taken a more energetic approach to this rule-making. Instead of adopting the Department of Justice pro-totype Section 504 regulations for federal agencies with almost no changes, it would have been m'C re ff e~t .1.v..a to written the regulations with your Agency 1 s *~ pec i f ~ ~ func~ tions in mind. For example the comments to sections .130,
. 150 or .160 all could have included concrete examples taken
- Aunited way Agen~ rom the everyday functions of your Agency. As they OAKLAND OFFICE SAN LEANDRO OFFICE SAN MATEO OFFICE SAN JOSE OFFICE 477 15th Street #200
- Oakland, CA 94612 (415) 465-0927 (TTY)
- 465-0926 (Vo,ce) 157 Parron Street
- San Leandro, CA 94577 (415) 895-2520 (TTY)
- 895-2440 (Vo,ce) 134 North B Street
- San Mateo. CA 94401 (415) 347-6672 (TTY)
- 347-667 (Voce) (408.!_298-5443 (TT! "
! E:}
1663A W San Carlos St
- San Jose, CA 95t28
"'°" o"""""""""°"' ~by....,.., JHiG. * . f'Jl-
... NJmAI l(GW.fOIY COMMfSSIClil DOQCETING & savta SEOIOM OFFICE Of THE SECRETAft OF THE COMMISSION Document Statistics ,__"' Date u/u.lJ-4 tc,piel Received -----/
;.dd' I Copies Reproduced -----
2-..
. . . Oi,tribution {l I l> S ~I~
are written, the proposed rules are ex c eedingly general, and i n some sections have no app arent relevance to your Agency's usual in teraction with either private citizens or other federal employees, whethe r hand ica ppe d o r not. Expressly relating these regulations to your Agen cy's functions would not only encourage your Agency t o examine more closely its actu a l and potential i nter act ions wi th disabled individuals, but also would make the eventual adop ti on of t hese rules more meaningful by giving both Agency personnel and the disabled more specific guidance. Our other main problem with these proposed rules is the inclusion of the Dayis "undue financial and administra-tive burdens " defense in sect i ons .150 "Program accessibil-ity: Existing facilities", and .160 " Communications". Quite simply, we feel that your Agency is not r equired to fo 1 ow the ho ld in g in 12.,.9:_yis h~cRuse that decision i nvolved the requirements placed by Section 504 on reeipients of federal aid, not federal agencies. Your Agency is proposing regulations that will govern itself, not others. Thus, Dayis clearly does not control and your Agency is free to adopt a less restrictive Section 504 interpretation to govern i t self. We stress that the United States Government should be a model of accessibility. We know from experience that local federal administrators, citing hardship, have used the undue financial and administrative burdens defense to refuse all but the smallest expenditures or burdens for handicap accommodation. We feel that such a counterproductive approach will be encouraged if the proposed language is allowed to remain unchanged in your Agency's regulations. Since the your Agency is under no duty to adopt the undue burdens defense it should strike the language from the proposed rule or at a minimum, explain it and provide specific examples of its potential application. Should you elect to retain the undue burdens defense, we nevertheless feel there should be some mechanism in sec ions . 150(~)(3) a nd . 160( e) f o r me~t i ng the needs of the handicapped person who is awaiting a personal determination by the Agency head whether compliance would result in undue financ i al or administrative burdens. We suggest a 30-day time l imit for the issuing of such a determination. Without such a mechanism, it is quite forseeable that lower level administrators might "kick upstairs" a handicapped person's request for accommodation, making that ' person - wait p~rhaps many months for a decision by the . Agency head that an undue burden actually existed. Should the Agency h~ad eventually dec i de that no undue burden existed, the handi~apped person *in the meantime could well have lost an important right or benefit . Com~ents upon the other sections of the proposed rules are as follows:
- 1. Section . 130,
- Genera l prohibitions against discrimination. We believe the your Agency has erred by omitting the provision found in the federal financial assistance regulations t hat prohibits aiding or perpetuating discrimination by ass istin g an Agency , orga nization, or person that discrim i nat es against handicapped persons. (28 CFR 41.51(b)(1)(V) & (b)(3)(iii) (1982).) There is no apparent rationale fo r a llow in g gover nment agencies to perpetuate di scrimination by ass i st i ng discriminators when recipients of federal financia l assistance are prohibited from doing so.
- 2. Section . 17 0, Compliance procedures. This proposed section is clearly lacking i n necessary detail. It omits guidance on such i mportant matters as who may f ile a complaint , whe n and how to file, and confidentiality. It also lacks prov i sion f or a complainant to have his or her appeal h ea r rl by a administrat*ve l aw judge . To remedy these deficiencies, we recommend that the compliance section fro~ the Department of Justice f i nal ru l e (49 Fed. Reg.
35724, 35737 , September 11, 1984) be substituted for this sec tio n.
- 3. Also, we believe that, counter to the language in section .130(6), the protections of this part should be extended to programs or activities of entities that are licensed or certified by your Agency if such programs in fact exist. Such a proh i bition would foster the broad nat i onal policy of non-discrimination on the basis of handicap expressed in federal laws such as in Section 504.
All federal agencies should undertake to foster important national policies within their respective spheres of activity. We thank your Agency for the opportunity to comment on this proposed rule and trust you will continue to give the needs of the disabled serious consideration. Very truly yours, NcA~~ Nicholas Lanza Advocacy Specialist NL/vdr PUBLIC INTEREST LAW CENTER OF PHILADB..PHIA l1CO !~ THOMAS K. GILHOOL CHIEF COUNSEL JEROME BALTER MICHAEL CHURCHILL FRANK J. LASKI 215
- PE 5-7200 DAVID G. DAVIS EDWIN D. WOLF ADMINISTRATIVE OFFICER EXECUTIVE DIRECTOR 1974-1976 December 21, 1984 oor.1S11M11 ***.
Secretary - . RULi PR--1. ' @ U. S. Nuclear Regulatory Commission 1717 H Street, N.W. {49 Fl!. ...34/i8) Washington, D.C. 20555 Attention: Docketing and Service Branch
Dear Sir/Madam:
Enclosed are our Comments on your proposed rule concerning enforcement of non-discrimination on the basis of handicap in programs or activities conducted by your agency, which appear at 49 Fed. Reg. 34132 ( August 28, 1984), which we submit on behalf of the organizations that comprise the Save 504 Coalition. We appreciate your attentiveness to these Comments. Very truly yours,
~-
Ti~Cook
~- ~
Judith A. Gran Frank J. Laski Thomas K. Gilhool TMC/rll Enclosure
~ bt illlM.: i : ~::c-AFFILIATED WITH LAWYERS COMMITTEE FOR CIVIL RIGHTS UNDER LAW .;.
.S. NUCLEAR REGU! AT RY COMMrss1011 DOCKETING & SE ' 1,,. SECT /ON OfF1rr. OF T' ~ \RY OF stm rL D t I
D
Notice of Proposed Rulemaking: Enforcement of Nondiscrimination on the Basis of Handicap in Federally Conducted Programs (49 Fed. Reg. 34132 (August 28, 1984)) Comments of Advocacy, Inc., Disabilities Unlim-ited, Disabled in Action of Baltimore, Disabled in Action of Kentucky, Disabled in Action of New Jersey, Disabled in Action of New York, Disabled in Action of Pennsylvania, Disabled in Govern-ment, District of Columbia Services for Indepen-dent Living, Federation of Recipients with Acti-vism Regarding Disabilities, Handicaps Unlimited of Virginia, Independence Center, MH/MR Consumer Advocates of Bucks County, Inc., Michigan Protec-tion and Advocacy Services for Developmentally Disabled Citizens, Open Doors for the Handicapped of Pennsylvania, The Allegheny Accessibility Coalition, The Association for the Severely Han-dicapped, The Atlantis Community, The California Disability Rights Union, The Chicago Council for Disability Rights, The Colorado Coalition for Per-sons with Disabilities, The Department of Justice Handicapped Employees Association, The Florida Council of Handicapped Organizations, The Georgia State Advocacy Office, The Handicapped Advocacy Network of Delaware, Inc . , The Maryland Alliance of Advocates of the Handicapped, The National Council of Independent Living Programs, The Na-tional Spinal Cord Injury Association, The New York State Coalition of People with Disabilities, The North Carolina Alliance of Disabled and Con-cerned Citizens, The Pennsylvania Coalition of Citizens with Disabilities, The Pennsylvania De-velopmental Disabilities Advocacy Network, The Philadelphia Resources for Living Independently Association, The Spina Bifida Association, The Southeastern Wisconsin Center for Independent Liv-ing, The Tennessee Coalition of Citizens with Dis-abilities, The Vermont Center for Independent Liv-ing, Vermont Developmental Disabilities Protection and Advocacy, The West Virginia Advocates for the Developmentally Disabled, The Wisconsin Coalition for Advocacy, The Wisconsin Disability Coalition, The Wisconsin Governor's Committee for People with Disabilities, The World Institute on Disability THOMAS K. GILHOOL FRANK J. LASKI TIMOTHY M. COOK JUDITH A. GRAN Public Interest Law Center of Philadelphia 1315 Walnut Street, Suite 1632 Philadelphia, PA 19107 (215) 735-7200 Attorneys for Commenters
These comments are submitted in response to the notice of proposed rulemaking appearing in the Federal Register on August 28, 1984. That notice concerned "enforcement of. nondis-crimination on the basis of handicap in federally conducted pro-grams." The proposed rule was issued to enforce the 1978 amend-ments to Section 504 of the Rehabilitation Act of 1973, 29 u.s.c. §794. Those amendments made the provisions of Section 504, the "Disabled Persons' Civil Rights Act," applicable to "any program or activity conducted by any Executive agency." The amendments also required that "the head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section.*" Commenters are organizations of disabled persons, and their advocates. Their membership includes over one million dis-abled people, many of.whom are beneficiaries of the* programs' and activities covered by the proposed rule. Commenters also are plaintiffs in a suit filed on November 15, 1984, Department of Justice Handicapped Employees Association, et al. v. Smith, No. 84-5645 (E.D. Pa.) challenging the validity of certain provisions of the final rule recently promulgated by the Department of Jus-tice (49 Fed. Reg. 35724 (Sept. 11, 1984)) for the enforcement of Section 504. We believe your proposed rule, if promulgated in its current form, invites.a.:similar challen~e. While we are troubled by various sections of the proposed rule, we believe that most of our concerns are being addressed
sufficiently by other commenters.* Thus, our comments are di-rected exclusively to certain portions of the "program access-ibility" (§~150) and the "communications" (§.160) provisions of the proposed regulation, which carve out a broad exception to Section 504's imperative that handicapped people be included, accommodated and integrated into federal programs. Those sec-tions*both flatly state that the proposed rule "does not re-quire the agency to take any action that it can demonstrate would result ... in undue financial and administrative burdens." We vigorously oppose inclusion of these provisions. They un-necessarily create a substantial exception to Section 504's co~erage. The exceptions are not clearly mandated by the case law. Nor has there been any attempt whatsoever that we know of to assert any factual necessity for these exceptions. Un-der the formulation of the proposed rule, Section 504 ~£fects only those activities that an agency head desires to be COV7 ered. Thus, qualified handicapped persons may legally be ex-cluded from participating in or denied the benefit of a federal program so long as an agency head decides that any efforts ne-cessary to accommodate that person would be an "undue financial burden" or an "undue administrative burden." We believe that a regulation permitting such an exception is improper. We base this conclusion on several independent points, as detailed below.
*In that regard, we specifically endorse the comments submitted to you on behalf of the Disability Rights Education and Defense Fund.
1. We begin by setting forth the proper framework within which the "burdens" exception may be analyzed. It is well-set-tled that Section 504 was enacted as major civil rights legisla-tion. See Consolidated Rail Corp. v. Darrone, 104 S.Ct. 1248 (1984); Community Television of Southern California v. Gottfried, 103 S.Ct. 885 (1983). "As is apparent from its language, Sec-tion 504 is intended to be part of the general corpus of dis-crimination law," and therefore must be construed in terms of "general princ~ple[s] of discrimination law." New York State Ass'n for Retarded Children v. Carey, 612 F.2d 644, 649 (2nd Cir. 1979) .* If Section 504 were not civil rights legislation, a stronger case could possibly be made for the "burdens" provision of the proposed regulation. But, as Professor Sutherland indi-cates: There has now come to be widespread agree-ment, however, that civil rights acts are remedial and should be liberally construed in order that their beneficent objectives may be realized to the fullest extent pos-sible. To this end, courts favor broad and inclusive application of statutory lan-guage by which the coverage of legislation
*Section 504 _was intended to be "a bill of rights for the handicapped." 119 Cong. Rec. 7105 (1973). During the de-bates on the 1978 amendments to Section 504, Senator Stafford referred to that law as "the base line civil rights provision for handicapped Americans." 124 Cong. Rec. Sl5572 (September 20, 1978).
- 3 -
to protect and implement civil rights is defined. This policy has found application in determining such questions as, for exam-ple, what activities or circumstances are subject to a prohibition against discrimina-tion, and what constitutes a violation. Cor-relatively, exceptions and limitations which restrict the operation of such laws are strictly construed. 3 Sutherland, Statutes and Statutory Construction, §72.05, at 392 (4th ed.). Like Title IX of the Education Amendments of 1972, whose language it tracks, Section 504 must be accorded "a sweep as broad as its language." North Haven Board of Educa-tion v. Bell, 102 s.ct. 1912, 1918 (1982), q*uoting United .States v. Price, 383 U.S. 787, 801 (1966). The language of Section 504, like that of Title VI, whose words Section 504 also copies, "is majestic in its sweep." Board of Regents of the University of California v. Bakke, 438 U.S. 265, 284 (Powell, J.) (1978) .* Thus, "Section 504, as [a] remedial statute, should be broadly applied and liberally construed." S-1 v. Turlington, 635 F.2d 342, 347 (5th Cir.), cert. denied, 454 U.S. 838 (1981): -
*Accord, id. at 387 (Brennan, White, Marshall & Blackmun, JJ.) (under Title VI, "Congress ... clearly desired to encourage all remedies ... to eliminate discrimination"); NAACP v. Medical Center, Inc., 599 F.2d 1247, 1251 (3rd Cir. 1979) ("Section 601 is unequivocal, broad, and remedial in nature"); United States
- v. El Camino Community College District, 454 F.Supp. 825, 829 (C.D. Cal. 1978), aff'd, 600 F.2d 1258 (9th Cir. 1979), cert.
denied, 444 U.S. 1013 (1980) (" to effectuate the remedial pur-pose of Title VI, the statute should be liberally construed"); Bob Jones University v. Johnson, 396 F.Supp. 597, 604 (D.S.C. 1974), aff'd sub nom. Bob Jones University v. Roudebush, 529 F.2d 514 (4th Cir. 1975) ("narrow readings of Title VI coverage are inappropriate").
- 4 -
We cannot emphasize too strongly that this special stan-dard requires agencies to take extraordinary care before limit-ing the scope of laws like Section 504. If persuasive arguments can be made to both challenge and defend the "burdens" exception, then the black letter law of statutory construction compels dele-tion of that exception in view of the preference for "broad and inclusive application of statutory language by which the coverage of legislation to protect and implement civil rights is defined." Sutherland, supra, at 392. 2. Justice Powell was not exaggerating in the least when he judicially recognized that the language of Title VI, and al-so Section 504 since it uses the exact same words, "is majestic in its sweep." Regents v. Bakke, 438 U.S. at 284. Section 504 states that "no" handicapped person, if qualified, can be "ex-cluded from the participation in" or "denied the benefits of - . . . any program or activity" conducted by federal agencies or recipients of federal assistance. This broad language was originally enforced via a regu-lation promulgated by the Department of Health, Education and Welfare (HEW)
- in- 1977 for re:c.ip:ients of its assistance, 45, C. F. R.
Part 84. That regulation contained numerous concessions to those recipients. For example, that regulation restricted the requirement that employers provide reasonable accommodations to those instances that do not present an undue hardship, id.
- 5 -
at §84.12(a); did not require that all existing facilities be made accessible, id. at §84.22(a); and limited the requirement that small providers of health, welfare and social services pro-vide auxiliary aids, id. at §84.52(d). As the Secretary of HEW stated in the Preamble to that regulation:
"Section 504 ... represents the first Federal civil rights law protecting the rights of handicapped persons and re-flects a national commitment to end dis-crimination on the basis of handicap.
The language of section 504 is almost
*identical to the comparable nondiscrimi-nation provisions of title VI of the Civil Rights Act of 1964 and title IX of the Education Amendments of 1972 (ap-plying to racial discrimination and to discrimination in education on the basis of sex). It establishes a mandate to end discrimiriation and to bring handi-capped persons into the mainstream of American life. The Secretary intends vigorously to implement and enforce that mandate ....
"There is overwhelming evidence that in the past many handicapped persons have been excluded from programs entirely or denied equal treatment, simply because they are handicapped. But eliminating such gross exclusions and denials of equal treatment is not sufficient to assure gen-uine equal opportunity. In drafting a regu-lation to prohibit exclusion and discrimi-nation, it became clear that different or special treatment of handicapped persons, because of their handicaps, may be neces-sary in a number of contexts in order to ensure equal opportunity. Thus, for exam-ple, it is meaningless to 'admit' a handi-capped persons in a wheelchair to a program if the program is offered only on the third floor of a walk-up building. Nor is one providing equal educational opportunity to a deaf child by admitting him or her to a classroom but providing no means for the child to understand the teacher or receive instruction.
"These problems have been compounded by the fact that ending discriminatory practices and providing equal access to programs may involve major burdens on some recipients. Those burdens and costs, to be sure, provide no basis for exemption from section 504 or this reg-ulgation: Congres~' mandate to end dis-crimination is clear. But it is also clear that factors of burden and cost had to be taken into account in the regulation in prescribing the actions necessary to end discrimination and to bring handicapped persons into full par-ticipation in federally financed pro-grams and activities."
- 4 2 Fed. Reg. 2 2 6 7 6 ( 19 7 7) . Thus, the HEW regulation took "factors of burden and cost ... into account," but at the remedy stage, and only in a manner that would "bring handicapped persons into full partici-pation." Id. The handicapped community, though not thrilled, was satisfied. Recipients of federal assistance, though not thrilled, also were satisfied. Everyone recognized that the regulation was a fair one, and no one from either camp, as far - as we know, has ever judicially challenged its validity in the more than seven years since its promulgation. Not surprisingly, a year after issuance of the HEW rule, in the process of amending the Rehabilitation Act to include federal agencies within the coverage of Section 504, Congress re-viewed the HEW formulation and put its imprimatur on that regula-tion. As the Senate Report for the 1978 Amendments expressly states: It is the committee's understanding that the regulations promulgated by the Department of Health, Education, and Welfare with respect to procedures, remedies, and rights under Section 504 t conformed with those promulgated under Title VI. Thus, this Amendment codi-fies existing practice as a specific statutory requirement. S. Rep. No. 890, 95th Cong., 2d sess. 19 (1978). In Conrail v. Darrone, the Supreme Court quoted this legislative history and concluded that "[t]he [HEW] regulations particularly merit deference in the present case: the responsi-ble congressional committee participated in their formation and both these committees and Congress itself endorsed the regula-tions in their final form." 104 S.Ct. at 1255. Indeed, the Court went further, stating that "the legislative history re-veals that this section was intended to codify the regulations of the Department of HEW governing enforcement of §504 .... " Conrail, id. at 1255 (emphasis supplied). The proposed rule now pending carves out an exception appearing nowhere in the Act itself or in the HEW regulations that have been expressly approved and codified by the Congress. - Thus, the proposed rule falls short of full implementation of Section 504. 3. Other provisions of the 1978 Amendments similarly demon-strate that Congress was well aware.that the Section 504 regula-ti,on would impose financial burdens. In order to assist with those burdens, the Amendments established programs to assist recipients of federal funds to provide aids and services re-quired to comply with Section 504. Section 115(a) (2) of the
- 8 -
1978 Amendments established local rehabilitation centers for handicapped persons and expressly provided that: Such centers shall provide, upon re-quest, to local governmental units and other private nonprofit entities located in the area such {nforrnation and technical assistance (including support personnel such as interpre-ters for the deaf) as may be neces-sary to assist those entities in com-plying with this chapter, particularly the requirement of Section 794 [Sec-tion 504] of this Title. 29 u.s.c. §775(a) (2) (emphasis supplied). This statutory language plainly indicates Congress' determination that Section 504 prohi-bits the exclusion of handicapped people due to the absence of communication aids.* The 1978 Amendments provided funds for communication aids and services that were expressly required by the HEW regulation, such as interpreter services for the deaf and reading services for the blind. 29 U.S.C. §777 (e) (providing funding to aid corn-pliance with 45 C.F.R. §§84.34(a), 84.52); 29 U.S.C. §777(d) (pro- - viding funding to aid compliance with 45 C.F.R. §§84.34(a), 84.52). Especially in light of the Supreme Court's decision in Conrail v.
*Similarly, Section 114(3) of the 1978 Amendments, 29 U.S.C. §774(d), authorizes grants to public and private nonprofit institu-tions to establish programs "[f]or the purpose of training a suffi-cient number of interpreters to meet the communication needs of deaf individuals." Section 774(d) was enacted in part "in response to the requirements imposed by section 504 .... " S. Rep. No. 890, 95th Cong., 2d sess. 41 (1978) See also 124 Cong. Rec. Hl3473 (daily ed. Oct. 14, 1978) (section 774 (d) is intended "[to] make section 504's nondiscrimination policies meaningful ... ") (remarks of Rep. Jeffords).
Darrone, 104 S.Ct. at 1254 n.13, these enactments provide addi-tional authority for our contention that provision of those aids was considered mandatory by the Congress.* 4. The Attorney General, in his "Section-by-Section Analy-sis and Response to Comments" published with the final 504 regu-lation for the programs the Department of Justice conducts, has failed to adequately consider and respond to these comments, which were duly submitted to him by several commenters. He failed to address the 1978 Amendments or their legislative his-tory. Regarding the Supreme Court's decision in Conrail v.
*In so concluding, Congress also noted the revenue sav-ings that are achieved by rehabilitating handicapped persons.
One commentator has analyzed the legislative history of Section 504 and concluded: If a particular accommodation would re-habilitate a handicapped person, i.e., enable her to become self-sufficient in-stead of economically dependent on_the government, the costs of such an accom-modation could be offset by cost savings. Rehabilitation can be cost-efficient in two ways. First, rehabilitated persons greatly increase their personal income-- in fiscal year 1976, the increase was es-timated to be over $1 billion dollars--and pay at least 6% of their income and taxes to Federal, State, and Local governments. H.R. Rep. No. 1149 [94th Cong. 2d sess.] 8, [1978] U.S. Code Cong. Ad. News at 7320. Second, rehabilitation reduces wel-fare and other expenditures. Id. Note, Accommodating the Handicapped:. The Meaning of Discrim-ination under Section 504 of the Rehabilitation Act, 55 N.Y.U. L. Rev. 881, 887 n.30 (1980); see also Comment, Accommodating the Handicapped, 80 Colum. L. Rev. 171, 173-74 (1980) ("underlying Congress' goals [in Section 504] is the assumption, supported by substantial evidence, that it is less expensive to educate and employ the handicapped than to institutionalize them or to pro-vide them with public assistance"), citing H.R. Rep. No. 1149, supra, at 9; S. Rep. No. 1135, at 12; 119 Cong. Rec. 24,586 (1973) (remarks of Sen. Cranston). Darrone, the Attorney General states: This view misunderstands the court's actions in Darrone. In that case the Court ruled on a series of issues, the most important of which was under what circumstances* [ sic] section 5 04 applied to employment discrimination by recipients. The Court did not concern itself either directly or indirectly with the defini-tion of "qualified handicapped person" or whether section 504 included limita-tions based on "undue financial and ad-ministrative burdens." 49 Fed. Reg. at 35726. The most cursory reading of Darrone, however, reveals that, as its central rationale for holding that Section 504 applied to all employment discrimination by recipients of federal assistance, the Supreme Court relied upon the applica-tion of the HEW regulation to employment. It was in the course of deciding upon the validity of the HEW construction that the Court reviewed the legislative history of the 1978 Amendments to Section 504, and correctly determined that the intent of Congress was to codify that regulation--not solely the employ-ment practices provisions at issue in that case, but the regula-tion as a whole, including the requirement that no qualified handicapped person be "excluded from participating in" or "de-nied the benefits of" federally funded activities due to the lack of accessibiilty or communicative aids. Thus, Section 504 requires exactly what the proposed regu-lation wants to exclude. Although federal agencies may not like this requirement, arguments in that vein ought to be addressed to the Congress. It is not within the agency's purview to create an exception, especially to a civil rights enactment, when Congress has failed to do so and, to the contrary, has approved and codified an official administrative construction without that exception. 5. The principle argument for inclusion of the "burdens" exception is that it is required by a 1979 Supreme Court deci-sion, Southeastern Community College v. Davis.* The Section-by-Section Analysis of the proposed rule states: This subparagraph J§.150] provides that
~n m~eting the program acces~ibility requirement the agency is not re-quired to take any action that would result in a fundamental alteration in the nature of its program or activ-ity or in undue financial and admin-istrative burdens. A similar limita-tion is provided in §160(e). This provision is based on the Supreme Court's holding in Southeastern Com-munity College v. Davis, 442 U.S. 397 (1979), that section 504 does not re-quire program modifications that re-sult in a fundamental alteration in the nature of a program, and on the Court's statement that section 504 does not require modifications that would result in "undue financial and administrative burdens." 442 U.S. at 412.
49 Fed. Reg. at 34135. This contention is wrong for several
*Because of the apparent importance of the Davis deci-sion to this proposed rule, the next several comments are de-voted to analysis of that case.
reasons.* We begin by noting that the above passage represents a selective use of the Davis quotation. The full text of the discussion by Justice Powell reads: Technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment. Such advances also may enable attainment of these goals without imposing undue fi-nancial and administrative burdens upon a State. 442 U.S. at 412. Thus, the Davis opinion never says that "sec-tion 504 does not require program modification ... that would result in 'undue financial and adP1inistrative burdens,' "as the Section-by-Section Analysis suggests. That is a gloss placed on the quotation. The Davis passage could also fairly be read as a discussion of possible technological advances that may make it less burdensome to comply with Section 504 in the future. Whatever the validity of the Analysis' construction of the "burdens" passage, that language was not the holding of the case, but merely, as the Analysis concedes, 49 Fed. Reg. at 34135, "the Court's statement." As the Attorney General also
*We do not challenge here or in our complaint against the Department of Justice the legal validity of the new "fun-damental alteration" language of the federally conducted regu-lation. While we believe that this new language is unwise and unnecessary as a matter of policy, we also recognize that a persuasive argument could be made that this language, unlike the "burdens" language, may be consistent with that already contained in the HEW recipient regulation.
concedes, 49 Fed. Reg. at 35730, the Court's discussion was not necessary to the decision in the case, and thus was gratuitous commentary, i.e., dicta. The Court specifically stated that "on the present record it appears unlikely respondent could benefit from any affirmative action" that the defendant college might have undertaken to accommodate her needs. Thus, the Court ob-served, even if such accommodations were made Ms. Davis "would not receive even a rough equivalent of the training a nursing program normally gives." Id. at 409, 410. For these reasons, the Court concluded that Ms. Davis would be unable to partici-pate in the nursing program in any event, see id. at 407, and that she was therefore not an otherwise qualified handicapped individual. See id. at 406, 407. Moreover, lower court decisions discussing this ques-tion uniformly have recognized that the holding in Davis dealt only with the issue of whether the plaintiff there was "other-wise qualified." E.g., New Mexico Ass'n for Retarded Citizens
- v. New Mexico, 678 F.2d 847, 853-54 (10th Cir. 1982); S-1 v.
Turlington, 635 F.2d 342, 349-50 (5th Cir. 1981), cert. denied, 454 U.S. 838 (1982). Reliance on judicial language that lacks the weight of precedential authority for such a sweeping modi-fication of a statutory obligation as that suggested in this proposed rule surely is an improper way to write a regulation. 6. Other language in the Davis decision, bypassed by the Analysis, impliedly upheld the HEW regulations involved in that case. Indeed, the Court relied upon those regulations in ren-dering its decision, 442 U.S. at 409, and concluded that "a refusal to modify an existing program might become unreason-able and discriminatory," id. at 412. The Court also stated:
"If [the HEW] regulations were to require substantial adjustments in existing programs beyond those ne-cessary to eliminate discrimination against otherwise qualified indivi-duals, they would do more than clar-ify the meaning of §504."
Id. at 410 (emphasis supplied). This language plainly recognizes that "adjustments in existing programs" may be required in some circumstances by Section 504 when "necessary to eliminate dis-crimination against otherwise qualified individuals." Thus, "thi elimination of discrimination [to comply with Section 504] might involve some costs." Id. at 411 n.10. 7. Numerous other federal agencies in promulgating regula-tions for recipients of federal assistance, .like HEW, have al-ready carefully and appropriately balanced those costs and com-plying with Section 504 with the Congressional ~ntent in enact-ing that statute, without adopting an across-the-board burdens" exception. 5 C.F.R. §§900.701-.710 (effective November 14, 1980) (OPM); 7 C.F.R. §§15b.l-.42 (June 11, 1982) (Agriculture); 10 C.F.R. §§4.101-.233 (March 6, 1980) (NRC); 10 C.F.R. §§1040 . 74 (June 13, 1980) (Energy); 13 C.F.R. §§113.1-.10 (April 4, 1979) (SBA); 14 C.F.R. §§382.1-.25 (June 6, 1982) (CAB); 14 C.F.R. §§1251.100-.400 (September 10, 1979) (NASA); 15 C.F.R. §§8b.l-.25 (April 23, 1982) (Commerce); 18 C.F.R. §§1307.1-.13 (April 4, 1980) (TVA); 22 C.F.R. §§142.1-.63 (October 21, 1980) (State); 22 C.F.R. §§217.1-.61 (October 6, 1980) (AID); 29 C.F.R. §§32.1-
.51 (October 7, 1980) (Labor); 31 C.F.R. §§51.55 (September 30, 1981) (Treasury); 32 C.F.R. §§56.1-.7 (April 8, 1982) (Defense);
34 C.F.R. §§104.1 (May 9, 1980) (Education); 38 c.F.R. §§18.401-
.461 (September 24, 1980) (VA); 43 C.F.R. §§17.200-.280 (July 7, 1982) (Interior); 45 C.F.R. §§1151.1-.44 (April 17, 1979) (NEA);
45 C.F.R. §§1170.1-.55 (November 12, 1981) (NEH); 45 C.F.R.
§§1232.1-.16 (May 30, 1979) (ACTION). 19 of these final regula-tions were promulgated after the Davis decision.
8. Of particular significance is a 1980 action of the At-torney General, promulgating a final regulation to enforce Sec-tion 504 as to recipients of financial assistance from the De-partment of Justice. 45 Fed. Reg. 37622 (1980). In the pre- - amble to that regulation, the Attorney General stated that the rule was fully consistent with "the substance of the HEW section 504 rule." Id. In an explanatory appendix to the regulation, the Attorney General analyzed the Davis decision, and concluded that that decision required no alteration from the substance of the HEW regulation:
"This subpart requires that (1) em-ployers make reasonable accommodation to the handicaps of qualified handi-capped applicants or employees, and that (2) programs be readily accessi-ble to and usable by qualified handi-capped persons. These requirements must be read in light of Southeastern Community College v. Davis, 442 U.S.
397 (1979), where the Supreme Court first considered the reach of Section 504 of the Rehabilitation Act.
"Davis held that section 504 did not require the petitioner college to make fundamental alterations to its regis-tered nurses' training program in order to accommodate the severe hearing loss of respondent who had applied for admis-sion to the program as a student. The Court held that the respondent failed to meet the legitimate and necessary physi-cal requirements of the program estab-lished by petitioner, and, hence, was not qualified to participate in the pro-gram. The Court noted that the section 504 regulations of the Department of Health, Education and Welfare (45 C.F.R.
- 84. 3 (k) (3) (1978)) reinforced the Court's conclusion that the respondent was not qualified to be a student in petitioner's training programs. Id. at 406. Section 84.3(k) (3) of Title °4"5"provides that, as to postsecondary and vocational services, a 'qualified handicapped person' means
'a handicapped person who meets the aca-demic and technical standards requisite to admission or participation*:in the re-cipient's educational program or activ-ity.' An explanatory note to the HEW regulations defines 'technical standards' as 'all nonacademic admissions criteria
... essential to participation in the program in question.' 45 C.F.R. Part 84, App. A, at p.405.
"While the HEW section 504 regulations relating to postsecondary education re-quire recipients to modify any academic requirements that might discriminate against qualified handicapped persons and, further, require the provision of educational 'auxiliary aids' (e.g., taped texts, interpreters, classroom equipment, readers in libraries) (45 C.F.R. 84. 44 (a),
(d)), where necessary to avoid discrimina-tion, the Court noted these regulatory pro-visions did not require fundamental pro-grammatic and personal service adjustments needed by the respondent.
"First, the Court noted that peti-tioner's training program required 'the ability to understand speech without reliance on lipreading' to ensure 'pa-tient safety during the clinical phase of the program,' and that the respon-dent would require the 'close individual attention by a nursing instructor' in order to participate effectively in clinical work.* Id. at 407, 409. How-ever, the HEW regulation requiring aux-iliary aids specifically excludes 'at-tendants, individually prescribed de-vices, readers for person use or other study, or other devices or services of a personal nature.' 45. C.F.R. 84.44 (d) (2). Accordingly, in the Court's view, the law did not require the pe-titioner to provide respondent with an attendant nursing instructor since, in the context of a clinical program where each student would be required to deal individually with patients, this would have constituted 'services of a personal nature. 1 Hence the respondent could not qualify for the clinical nature of the training program and would be confined to taking academic courses only.
"Second, academic 'modifications' set forth in the HEW regulation include (but are not necessarily limited to):
changes in the length of time per-mitted for the completion of degree requirements, substitution of spe-cific courses required for the com-pletion of degree requirements, and adaption of the manner in which spe-cific courses are conducted (45 C.F.R. 84.44). However, as the Court saw it, such re-quired modifications did not encompass a curricular change which waived effec-tive participation in a critical compo-nent of a degree program in registered nursing. 'Whatever benefits respondent might realize from such a course of study, she would not receive even a rough equi-valent of the training a nursing program normally gives.' Id. at 410.
"While rejecting respondent's gloss on section 504 and HEW's implementing regulations, the Court inferentially upheld the HEW regulations mandating modification in admission criteria for qualified handicapped persons by not-ing that 'situations may arise where a refusal to modify an existing pro-gram might become unreasonable and dis-criminatory.' Id. at 412-13.
"This subpart is consistent with the holding in Davis for it prohibits dis-crimination only against qualified han-dicapped individuals in the Department's Federally assisted programs and activi-ties. Section 42.540(1) defines iqual-ified handicapped persons' as follows:
"(1) With respect to employment, a handicapped person who, with rea-sonable accommodations, can per-form the essential functions of the job in question.
"(2) With respect to services, a handicapped per~on who meets the essential eligibility re-quirements for the receipt of such services.
"The critical consideration in deter-mining whether a handicapped person quali-fies for participation in a program or ac-tivity receiving assistance from the Depart-ment is whether a particular physical or mental ability is a necessary prerequisite for effective participation, or whether that ability is only said to be necessary because a recipient of Federal funds has not given adequate consideration to the ways in which stated requirements may be modified in order to permit participation by handicapped persons."
45 Fed. Reg. 37631 (1980). Thus, as part of the rule-making process, the Attorney General fully considered and flatly rejected the contention that the Davis decision required modifi-cation of the substance of the HEW regulation.
,fr 9.
Similarly, this consistent administrative construction was followed by the Secretary of HEW,then the coordination au-thority for all Section 504 regulations pursuant to Executive Order No. 11914, when she ruled in response to inquiries imme-diately after the Davis decision that no revision of the 1977 regulation was required. Letter of October 5, 1979, Patricia Roberts Harris, Secretary of HEW, to Presidents of All Colleges and Universities in the United States. 10. In apparent recognition of the weakness of relying sole-ly on the Davis "statement," the Analysis accompanying the pro-posed rule, 49 Fed. Reg. at 34135, and that of the Department of Justice, id. at 35730, shift to reliance on a lower court case involving transportation issues, American Public Transit Association (APTA) v. Lewis, 655 F.2d 1272 (D.C. Cir. 1981), - and its progeny.* Assuming that decision, particularly in light of Conrail
*We are distressed that the Analysis chooses to cite on-ly those lower court cases, such as APTA, that the agencies be-lieve expand the Davis dictum, while conveniently ignoring cases, such as the persuasive decision of the Court of Appeals for the Fifth Circuit in S-1 v. Turlington, discussed above, which pro-perly limit that dictum.
- v. Darrone, retains any viability (which we doubt*), APTA does not in any event affect the proposed regulations at issue, which have no application to mass transit systems. Indeed, the APTA appellants conceded in their briefs and at the argument of the case that the result they sought had no application to any area other than mass transit. That the government also believed this to be the case, even following its embracing of the APTA decision, is confirmed by its actions in response to that ruling.
*The APTA court invalidated not only certain portions of a regulation of the Department of Transportation (DOT) requiring accessible mass transit systems, 49 C.F.R. §§27.83-.95 (1980),
but also the mass transit provisions of the HEW coordination regu-lation, 45 C.F.R. §§85.56-.57 (1980). To the extent the DOT regu-lation and the HEW coordination regulation were consistent with the HEW recipient regulation (which, as Conrail v. Darrone held, was approved and codified by the 1978 amendments to 504), the APTA decision cannot be considered good law. Moreover, it is important to have a good understanding of the APTA result to candidly recognize that the Justice Depart-ment did not present the most zealous advocacy possible on behalf of the transportation regulations under seige in that case. In-deed, having successfully defended the regulation in the district court, in what can only be explained by political considerations, the Justice Department, under its new leadership in 1981, at the oral argument of the appeal abandoned the position it had taken in its briefs that the transportation regulations were required and conceded that "local option" was not only also a permissible choice, but that the government was considering adopting that very choice, i.e., plaintiff's position, see 655 F.2d at 1280 n.14. Thus, it cannot be surprising that the court ruled as it did. Following the decision, the government gave no thought to appealing the decision or pursuing the issues left open on re-mand, see 655 F.2d at 1280, but instead swiftly and gleefully went about dismantling the mass transit regulations. In addi-tion, the result in other transportation cases, e.g. Rhode Is-land Handicapped Action Committee v. Rhode IslandPublic Transit Authority, 718 F.2d 490 (1st Cir. 1983) (cited by the Department of Justice at 49 Fed. Reg. 35725) can be explained partially by the fact that the Department of Justice has advocated in its briefs in those cases the broadest possible application of the APTA result. DOT's response to APTA was to promulgate an "interim final rule." 46 Fed. Reg. 37488 (July 20, 1981). However, that rule only purported to affect subpart E of the DOT 504 regulation, i.e., the mass transit provisions. DOT of course could have also promulgated an across-the-board "burdens" ex-ception to its regulation at the same time. It chose not to do so, even though its failure to take such action left intact its communications and program accessibility obligations. Since the regulation was amended in response to the APTA decision, DOT apparently did not believe that APTA required any other altera-tion. Similarly, the Attorney General's response was to sus-pend the HEW 1978 coordination regulation. 46 Fed. Reg. 40687 (August 11, 1981). However, he too only suspended the mass transit provisions of that regulation, leaving all of the com-munications and program accessibility obligations intact, since APTA required no other action. 11. Two years later, not only the Attorney General, but al-so the other federal agencies now promulgating proposed regula-tions for the programs they conduct, maintain that APTA bolsters Davisi therefore, codification of the burdens" exception is man-dated. The Attorney General states: Some cornmenters questioned the use of Davis as justification for the in-clusion of the new provisions in the federally conducted regulation. They noted that the Department had not included these changes when, subsequent to the Davis decision, it issued a regulation implementing section 504 in programs receiving Federal finan-cial assistance from this Department. The Department's section 504 federally assisted regulation, however, was is-sued prior to the D.C. circuit's de-cision in APTA. In APTA, the depart-ment had argued a position similar to that advocated by the cornmenters. Judge Abner Mikva's decision in APTA clearly rejected the Department's posi-tion in that case. 49 Fed. Reg. at 35725. Whatever arguments the Department set forth in its briefs before the APTA circuit court, the Attorney General neglects to maintain that he abandoned those positions at the oral argument. Indeed, as noted above, the Justice Department informed the court that it was considering adoption of the very position advocated by APTA, regardless of the court's decision in the case. The Attorney General gave the court carte blanche to rule the way it did. The Attorney General also neglects to explain why he on-ly suspended the mass transit provisions of the 504 coordination regulation in response to APTA, if the effect of that decision was deemed to be as comprehensive as he now asserts. Moreover, at least seven federal agencies promulgated 504 regulations after APTA, see Comment 7,. supra, but none of those agencies felt compelled by that decision to include any across-the-board "bur-dens" exception in their regulations. 12. A comprehensive study commissioned by the Department of I I HEW, and relied upon by the Department in promulgating its regu-lation, concluded that the benefits of implementing the regula-tion to enforce Section 504 would outweigh the costs of implemen-tation. "Discrimination Against Handicapped Persons: The Costs, Benefits and Inflationary Impact of Implementing Section 504 of the Rehabilitation Act of 1983 Covering Recipients of HEW Finan-cial Assistance," 41 Fed. Reg. App. B, 20312, 20364 (1976). This investigation concluded that the costs of alterations and commu-nicative aids, while sometimes expensive, amount to trifling sums, especially when compared to the resulting social benefit. The most common necessary alterations, such as the construction of ramps at the entrances of buildings, constitute negligible ex-penses relative to the cost of the entire structure. In fact, it is estimated that a new building can be made accessible to the handicapped at an additional cost of only one-half of one percent of the cost of constructing the .entire building. Id. at 20,333. This low percentage increase means that the economic impact of the new construction and alteration provisions is relatively in-significant. Additionally, according to the study, both economic and physical benefits, which will be enjoyed by both disabled people and the general public, will result from including disabled peo-ple in the mainstream of society. A more barrier-free environ-ment will increase the lifetime earnings of those who will be able to maximize their educatiOnal, training and employment op-portunities. The study estimated that the HEW regulation alone could yield approximately $1 billion per year in benefits via the higher earnings capacity of disabled workers. 41 Fed. Reg. at 20,323. Thus, HEW, and the other federal agencies that have issued regulations consistent with that of HEW, fully considered cost considerations before issuing their regulations. The Attorney General issued his recent regulation without the benefit of any such investigation. Nor does the rule pro-posed reference any factual basis for its "burdens" exclusion. Without such a basis by the time they are finalized, the regu-lation will be subject to challenge as an arbitrary and capri-cious exercise of the agency's authority. 13. It appears that the Presidential Task Force on Regula-tory Reform established by Executive Order No. 12291 has already made the contrary factual determination, that no across-the-board "burdens" exception is deemed necessary for any of the 504 reci- - pient regulations. Following a plenary review of those regulations by the Task Force, it ruled in a decision announced on March 21, 1983 by its Chairperson, Vice President George Bush, that the Section 504 coordination regulation for recipients of federal assistance (28 C.F.R. Part 41), which had been designated for review and possible alteration by the Task Force, required no alteration. We do not understand why a different determination, as a fac-tual matter, is deemed appropriate fqr the federally conducted
- 25 -
t regulations. In view of the Vice President's decision that no
burdens" exception needs to be incorporated into the 504 reci-pient regulations, it seems to us "unthinkable that the same [law]
would impose a lesser duty on the Federal Government." Bolling
- v. Sharpe, 347 U.S. 497, 500 (1954).
14. We are concerned that the burdens" exception is being written into this proposed regulation chiefly as a means of cir-
- cumventing the Vice President's decision. Thep:-oposed regula-tion as it presently is worded could be used by federal agencies to attempt to read the burdens" exception into all of their ear-lier promulgated 504 regulations for recipients of federal assis-tance. As the Analysis to the Justice Department's regulation candidly states, "the Department has interpreted its section 504 regulation for federally assisted programs in a manner consistent with the language of this final rule." 49 Fed. Reg. at 35725 (emphasis added). This language makes the fair victory we thought we had won, when the Vice President announced last year that the federally assisted regul~t{ons would not be changed, a hollow one.
- 26 -
15. We also are concerned that the "burdens provision per-mits a narrower construction of Section 504 than that applied to other analogous statutes such as Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d. Section 601 of that law uses the exact language employed by Section 504, except it applies to race rather than handicap. Remedies that could be construed as high-ly burdensome" have frequently been ordered on the authority of Title VI and the regulations issued to enforce that Title. For example, in Lau v. Nichols, 414 U.S. 563 (1974), the Supreme Court held that Title VI required 'affirmative steps' by the school board to accommodate the lan-guage disability of Chinese-speaking
.students so that they would not re-ceive 'fewer. benefits' from school services and would not be 'denied meaningful opportunity to participate in the educational program.'
Id. at 566-68. Thus at the time of the adoption of the 1978 Amendments to Section 504 it was settled law, based in part on Lau v. Nichols, that regulations enforcing Title VI required the provision of spe-cial aids and services necessary to permit equal participation by racial or ethnic minorities, without regard to any "burdens ex-ception. This requirement was made explicit with the enactment in 1978 of Section 505 of the Rehabilitation Act, which provided that
"[t]he remedies, procedures, and rights set forth in Title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal as-sistance or Federal provider of such assistance under Section 794 [Section 504] of this title."
29 U.S.C. §794a (1976). Lau v. Nichols had been cited with approval by HEW in its official analysis of its Section 504 regulations. 45 C.F.R. 84 App. A at 300, 116 ("This standard. parallels the one established under Title VI of the Civil Rights Act of 1964 with respect to the provision of educational services to students whose primary language is not English. See Lau v. Nichols, 414 U.S. 563 (1974)~~} Congress, when it reviewed the regulations in considering the 1978 Amendments, had to have been well aware of the influence of Lau on the regulations. Finally, whether or not Lau remains good law, see Guar-dians Association, 103 S.Ct. at 3236-37 (opinion of Justice Powell); id. at 3237** (opinion of Justice Rehnquist); id. at - 3237, 3239 (opinion of Justice O'Connor); id. at 3252-43 (opinion of Justice Stevens), the law must be applied as Congress thought it existed in 1978 when Congress enacted Section 505. Brown v. GSA, 425 U.S. 820, 828 (1976) ("the relevant inquiry is not whe-ther Congress correctly perceived the then state of the law, but rather what its perception of the law was") (footnote omitted);* see also Cannon v. University of Chicago, 441 U.S. 677, 696-703 (1979). Thus, since no "burdens" exception exists for the Title VI regulations, consistency requires that none be added to the Section 504 regulations. Respectfully submitted, 21~/:~~~ Public Interest Law Center of Philadelphia 1315 Walnut Street, Suite 1632 Philadelphia, PA 19107 (215) 735-7200 December 21, 1984 Attorneys for CoITII!l.enters J D CKET£0
" 'RC Secretary Docketing and Service Branch
- u. s. Nuclear Regulatory Commission 1717 H Street, N.W.,
Washington, D.C. 20555 RE: Proposed Rules on Enforcement of Nondiscrimination on the Basis of Handicap in the u. s. Nuclear.. Regul~tory Commis-sion Programs, 49 Fed. Reg. 34131 {August 28, 1984). COMMENTS OF THE NATIONAL CENTER FOR LAW AND THE DEAF, THE NATIONAL ASSOCATION OF THE DEAF, THE CENTER FOR LAW AND SOCIAL POLICY, THE AMERICAN COUNCIL OF THE BLIND, THE DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, THE EPILEPSY FOUNDATION OF AMERICA, THE NATIONAL SOCIETY FOR CHILDREN AND ADULTS WITH AUTISM, AND AN ASSOCIATION FOR CHILDREN AND ADULTS WITH LEARNING DISABILITIES INTRODUCTION The National Center for Law and the Deaf {NCLD) is a non-profit public interest law center that has provided legal education and services to hearing-impaired people since 1975. The NCLD is a public service of Gallaudet College in Washington, D.C. The views expressed herein are those of the NCLD and do not necessarily reflect the opinions of Gallaudet. The National Association of the Deaf {NAO) is a national non-profit organization located in Silver Spring, Maryland, with approximately 18,000 members who are hearin'!:'" impaired adults,
~btciii1Ctd"f.i~
U.S. NJO.fAR REGUlATORY COMMISSIOII DOCIC'ETING & SERVICE SECTION OFFICE OF THE SECRET ARY OF THE COMM ISSION Documer,t Statistics 1ostmarlc Date / z../z.1/(4 Coplu Receive~
- I -
Add'! Copi v "epr luced Z.. Special Dl1tribution ~iP$,JW-G~
parents of hearing-impaired children, and professionals in areas of services to deaf individuals. The NAO is the largest consumer organization of hearing-impaired people in the United States. The Center for Law and Social Policy is a public interest law firm which represents the interests of poor and previously unrepresented citizens before federal agencies, Congress, courts, and international forums. The Center also undertakes research on legal and policy issues affecting poor people, low-income workers, the disabled, and the delivery of legal services. The Center was created in 1969 and was the first of the foundation-funded public interest law firms *. The American Council of the Blind is the nation's largest membership organization of blind and visually impaired persons. For the past twenty years ACB has worked to eliminate unnecessary obstacles to the effective participation of blind individuals as citizens in all aspects of society. ACB views Section 504 of the Rehabilitation Act of 1973, as amended, as an important guarantee of equal opportunity for blind, visually impaired and other handicapped people and a major step toward Congress' goal of allowing full participation for handicapped people in the mainstream of society. The Disability Rights Education and Defense Fund, Inc. is a not-for-profit benefit corporation founded in 1979 by disabled adults and parents of disabled children to address national long-term disability rights reform from the perspective that all
disabled people have the right to lead full and integrated lives, with the freedom and diqnity guaranteed to all members of our society. The Epilepsy Foundation of America is the only national non-profit voluntary agency in the United States specifically dedicated to the welfare of people with epilepsy. The national office and a network of affiliated organizations work to improve the lives of those with epilepsy through a variety of programs of education, advocacy and family services. The National Society for Children and Adults with Autism {NSAC) is a non-profit national advocacy center serving people with autism and their families. NSAC is an association of parents, professionals and others dedicated to the education and welfare of children and adults with autism and related disorders of communication and behavior. An Association for Children and Adults with Learning Disabilities {ACLD) is a non-profit volunteer organization begun in 1964 by concerned professionals and parents of children with learning disabilities. As it became apparent that these problems are chronic and lifelong, the scope of the organization's concerns expanded to include problems of adults with learning disabilities. ACLD has over 800 state and local affiliates with a total membership of over 60,000 persons.
Comments The u. S. Nuclear Regulatory Commission's proposed regula-tions are intended to implement the requirements of Section 504 for federally conducted programs. The rules are an adaptation of a prototype regulation issued by the Department of Justice (DOJ) for the purpose of providing guidance to agencies required to promulgate their own regulations. We have included for the record comments filed in response to the virtually identical Department of Justice notice of proposed rulemaking (December 16, 1983; Supplemental Notice, March 1, 1984) which is similarly modeled upon the Department of Justice prototype. We request that you consider our comments filed qn the Department of Justice NPRM, as well as those set forth below. Section by Section Analysis A. Definitions - Section - .103
- 1. Auxiliary Aids The definition for auxiliary aids is found in section
-.103 of the proposed rules. *The preamble to the rules explains that while auxiliary aids are required explicitly only by section -.160(a)(1) - involving effective communications - they may also be necessary to meet other requirements of the regulation. We believe that a specific statement that auxiliary aids are required in all aspects of the agency's federally conducted programs should be included in the regulation itself. Specific
mention of auxiliary aids would clarify the agency's obligation to make programs accessible and to overcome barriers that may not be related to communication. Additionally, we urge the addition of attendant services to the "laundry list" of auxiliary aids appearing in the regulation. 49 Fed. Reg. at 34145. Specifically, at times, the services of an attendant may be necessary to achieve program accessibility even if all other requirements of accessibility have been met. A categorical exclusion of such services in the aefinition of auxiliary aids will undoubtedly create unnecessary confusion for individuals required to comply.with these regula-tions.
- 2. Qualified Handicapped Person In its proposed rule, the agency has incorporated the definition of "qualified handicapped person" appearing in the DOJ prototype. This definition states that a handicapped person is qualified, with respect to an agency program under which that person is required to perform services or achieve a level of accomplishment, if that person "meets the essential eligibility requirements and * *
- can achieve the purpose of the program or activity without modifications in the program or activity that would result in a fundamental alteration in its nature." 49 Fed.
Reg. at 34145. We see several problems with this definition.
First, the the agency's new definition deviates from the definition of a "qualified handicapped person" contained in the Department of Justice's existing guidelines for federally assisted programs. See 28 C.F.R. §41.32. Those guidelines properly define a qualified handicapped person as one who simply meets "the essential eligibility requirements of the program." The agency's proposed definition, on the other hand, imposes an additional requirement, i.e., that the person be able to achieve the program's purpose without fund~mental modifications made in the nature of the prograro. Congress intended for the substantive obligations under Section 504 in federally conducted and federally assisted programs to be identical. Moreover, in Consolidated Rail Corp.
- v. Darrone, 104 s. Ct. 1248 (1984), the Supreme Court recently held that the Section 504 guidelines for federally_ assisted programs "particularly merit deference [because] the responsible congressional committees participated in their formulation, and both these committees and Congress itself endorsed the regula-tions in their final form." Id. at 1225. The agency explains its deviation from the guidelines by citing the need to follow the Supreme Court's ruling in Southeastern Community College v.
Davis, 442 u.s. 397 (1979). However, this rationale fails to consider that the holding in Davis was in accord with the "essential eligibility criteria"definition in the DOJ guidelines for federally assisted programs. Indeed, in Davis, the Court's
opinion turned on what it considered to be the plaintiff's inability to meet the eligibility standards that were necessary for a particular training program. Davis and subsequent decisions have employed a two tier analysis to determine compliance with Section 504 by a particular program. The first of these inquiries is whether the handicapped person is qualified - i.e. can meet the essential eligibility requirements - for the program in question. The second inquiry is the extent to which the agency or program must provide auxiliary aids or other accommodations in order to ensure that such person has an equal opportunity to par~icipate in and benefit from the program. While we propose elimination of all references to "fundamental alteration" and "~ndue financial and administration hardship" from the agency's proposed regulations, if such language must appear, it should be applied to the second of these inquiries. As currently proposed, sections -.150(a)(2) and -.160(e) of the agency's proposed rules do just that. These sections set forth a series of procedures which must be followed before a determination is made that an accessible program or communication aid will result in a fundamental alteration in the nature of a program or in undue financial and administrative burdens. If the agency considets the "fundamental alteration" limitation in determining the in~tial inquiry - i.e. in deter-mining whether a particular individual is eligible for the program - the agency will never have occasion to apply these
procedural safeguards. Rather, determinations as to whether particular accommodations would result in fundamental alterations would be inappropriately made at the time the agency decides the threshold question of whether the individual meets the definition of a qualified handicapped person. We would like to note here, that should the agency decide not to delete the "fundamental alteration" language from its definition of a qualified handicapped person, we urge the agency to make clear that the burden of demonstrating that a modification will result in a fundamental alteration will fall on the agency, and not on the individual applic_ant. This can be done by adopting the definition of a qualified handicapped person found in DOJ's final regulation for its own tederally-conducted programs. That definition defines a qualified handicapped person as one who meets the essential eligibility requirements 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 * *
- 49 Fed. Reg. 35724, 35735 (September 11, 1984)(ernphasis added).
A second problem with the the agency's definition is that it requires the disabled person to "achieve the purpose of the program" to which the person seeks entry. In doing so, the agency's definition no longer focuses solely on essential eligibility criteria, but focuses rather on subjective notions of the person's performance and the level of achievement which he
or she can attain. This criteria, noticeably absent from the federally-assisted Department of Justice guidelines, invites unnecessary presumptions about a person's ability to perform on the job. Put simply, an individual either does or does not meet the "essential eligibility" requirements for a particular program. The introduction of subjective and unfounded presump-tions about disabled individuals into eligibility decisions is in direct conflict with the very purpose of the Rehabilitation Act. Our final comment regarding the agency definition of a qualified handicapped person is best made with a reference to the definition of qualified handicapped person {n final rules issued by the Federal Election Commission (FEC) for federally conducted programs. On August 22, 1984, the FEC beca~e the first federal agency to issue final regulations for their federally-conducted programs. 49 Fed. Reg. 33206 (Aug. 22, 1984). The FEC's defini-tion of a qualified handicapped person, having taken into consideration comments made by the disability community, offers a significant improvement over the DOJ prototype. Specifically, the FEC defines a qualified handicapped person (with respect to an FEC program under which a person is required to perform services or achieve a level of accomplishment), in part, as one "who, with reasonable accommodation, meets the essential eligi-bility requirements." 49 Fed. Reg. at 33212. Here, not only does the FEC eliminate the "fundamental alteration" language discussed above, but the FEC incorporates a requirement of "reasonable
accommodation" into its definition. The addition of this requirement is important because it ensures that pe6ple with disabilities will not be excluded from consideration merely because existing eligibility criteria may be tailored to "able-bodied" persons. For example, often completing an application form is a prerequisite for eligibility for a program. In these instances, a blind applicant should be allowed to have a reading assistant or receive the application in recorded form so that he or she will not be excluded from the program in question by his or her disability. Such an accommodation is fully consistent with the Davis case in which the Court explaJned that
"[i]t is possible to envision situations where an insistence in continuing past requirements and practices might arbitrarily deprive geniunely qualified handicapped persons of the opportunity to participate in covered programs * * *
- Thus situations may arise where a refusal to modify existing programs might become unreasonable and discriminatory."
442 u.s. at 412. For the reasons outlined above and for the purpose of fostering consistency among federal agencies, we urge you to (1) eliminate the "fundamental alteration" limitation now present in the definition of a qualified handicapped person, (2) eliminate from this definition the requirement that the disabled person achieve the purpose of the program or activity, and (3) incorpor-ate into this definition the requirement that reasonable accommo-dation be made in determinations on whether a particular indivi-dual meets the essential eligibility requirements.
B. Notice - Section - .111 The list of methods used to meet the notice require-ment - as set forth in your preamble - is very helpful. However, we recommend that the agency's regulations specifically require that information "effectively" apprise persons of their rights and protection against discrimination. We again refer you to the federally conducted rules promulgated by the FEC which contain this requirement. See 49 Fed. Reg. at 33212. The addition of this language will ensure that your agency will test the methods that it selects to accomplish the purposes of notification and that it will take action that will have the*4esired impact.
- c. Program Accessibility - Section .150; Communi-ations - Section - .160.
It is particularly important for the agency to revise its proposed regulations concerning proqram accessibility and communications, contained at sections - .150 and* - .160, respectively. The agency, in its preamble to the proposed rules, e correctly noted Congress' intent that the rules governing federally-conducted programs parallel rules for federally assisted programs. 49 Fed. Reg. at 34133. However, sections -
.150 and - .160 fail to parallel the coordination guidelines for federally assisted programs contained at 28 CFR Part 41 by specifically relieving the agency from havini to take actions that "would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative
burdens." The agency's rationale for having deviated from these guidelines is that the agency is required to do so by virtue of the decision in Southeastern Community College v. Davis, 442 U.S. 397 (1979). We disagree with the agency's interpretation of the Davis case. The agency's interpretation improperly suggests that the Supreme Court intended the federal government to be less vigilant, and to be less responsible in its treatment of disabled persons, than recipients of federal funds need be.: In fact, as the agency has impliedly noted, the Davis decision specifically upheld the validity of the federally-assis~~d regulations. In even clearer support of the federally-assisted guidelines, the Supreme Court recently held, in Consolidated Rail Corporation v. Darrone, 52 u.s.L.W. at 4304 n.15 (Feb. 28, 1984), that the federally-assisted regulations have the force of law. The combination of the Supreme Court's validation of the federally-assisted regulations, and the legislative history cited in the preamble to the agency's proposed regulation, supports our conclusion that the agency's final regulation should parallel the federally-assisted guidelines to a greater extent than the proposed regulations do now. Thus, the agency should rewrite sections - .150 and - .160 to eliminate the "fundamental alteration" and "undue financial and administrative hardship" language that appears in the proposed regulation.
The agency's preamble states that the agency has also relied on "recent case law" to support the "fundamental altera-tions" and "undue burdens" language. It states that its regu-lation acknowledges, in light of recent case law, that in some situations, certain accommodations for a handicapped person may so alter an agency's program or activity, or entail such extensive costs and administrative burdens that the refusal to undertake the accommodations is not discri-minatory. 49 Ped. Reg. at 34135. The suggestion that agencies were reguire*d to provide such accommodations before "recent case law." is simply not correct. In both the employment and program accessibility sections of the federally-assisted coordination guidelines, 28 C.F.R. 41.53 and 41.57, the concept of "reasonableness" is explicitly stated, as it is implicit throughout those guidelines. Therefore, inserting additional language to guard ~gainst excessively costly changes is unnecessary. It is also contrary to the goals underlying the agency's acknowledged commitment to the need to make its rules governing federally-assisted programs parallel to those governing federally-conducted programs. Finally, the agency concludes its justification for the additional language by asserting that [t]he failure to include such a prqvision could lead to judicial invalidation of the regulations or reversal of a particular enforcement action taken pursuant to the regulations.
49 Fed. Reg. at 34135-6. These outcomes seem, to us, unlikely. First, absent a specific enforcement action, there would be no substantive or procedural basis for challenging the agency's rules since they would parallel the federally-assisted regula-tions. Second, once the agency applies its regulations, a ~curt is unlikely to invalidate them unless they are used to accomplish the undesirable result of imposing excessive and unreasonable burdens on the agency. Neither Davis nor Darrone suggested that the federally-assisted regulations require the kin.els of amend-ments suggested here to prevent such a result. However, if the agency's final regulation follows the proposed rule, and includes the additional "fundamental altera-tions" and "burdens" language, we rec6mmend that the budget of the agency as a whole be the standard for assessing whether an accommodation is "burdensome." The relevant inquiry is not whether compliance would be too burdensome on a segment of the agency, but whether it would be an undue hardship on the entire agency. For example, in determining whether an interpreter should be provided to a hearing-impaired person in an administrative hearing, the agency should not limit its consi-deration to the budget alloted for the processing of individual appeals. We propose, therefore, that the regulatory language in sections - .150 and - .160 be revised to state: "the decision that compliance would result in such alteration or burdens must be made by the agency after considering all agency resources."
This language would eliminate a broadening of the "undue burdens" defense. Comparing the cost of an accommodation with a line item in a program budqet is very different from comparing it to "all agency resources." First, without this revision every accommoda-tion is likely to be defined as unduly burdensome. Second, all of the resources of the agency are taxpayer monies which may not be used to support discrimination. In addition to the above comments, we recommend that the agency add a provision to its section on Communications that would require the agency to make efforts to provide captioning on films and videotapes that it produces. For*example, this provision would read: The agency shall make efforts to-provide captioning for hearing impaired people in films and video tapes developed for use in programs conducted by the agency. D. Program accessibility: New Construction - Section - .151 The preamble to the agency's proposed regulation on new construction states that leased buildings are not required to meet "the new construction standard." 49 Fed. Reg. at 34136. The final regulations should clarify the fact that leased buildings ~ required to comply with the Architectural Barriers Act. That obligation was recently the finding of the Ninth Circuit Court of Appeals in Rose v. u.s. Postal Service, 725 F.2d 1249 (9th Cir. 1984). The opinion (and relevant GAO reports) explain that the GSA, unlike the Postal Service, has been complying with
the Barriers Act. The agency's clarification of this matter will both reflect an accepted practice and prevent confusion about the reach of the Barriers Act. E. Compliance Procedures - Section - .170 we have several comments with respect to the aqency's rules on procedures for handling allegations*of discrimination. First, the agency's proposed rules fail to inform complainants of the address to which complaints should be sent. This address should be included in the agency's final ~ules. S~cond, we propose that if the agency receives a complaint which* is not complete, it should notify the complainant o~ that fact and give the complainant an opportunity to remedy any existing defect in the complaint. Toward this end, we propose ~hat the agency adopt a rule similar to that which was promulgated in the FEC' s f.inal rules on federally-conducted programs. The FEC's rule states: If the Rehabilitation Act Officer receives a complaint that is not complete * *
- he or she will notify the complainant within 30 days of receipt of the incomplete complaint, that additional information is needed. If the complainant fails to complete the complaint within 30 days of receipt of this notice, the Rehabilitation Act Officer will dismiss the complaint without prejudice.
49 Fed. Reg. at 33214, to be codified at 11 C.F.R. §6.170(f)(2). In addition to this language, we request that the agency's rule require that notice be given to ~he complainant if, after opportunity to amend the complaipt is given, a decision is made ( to dismiss the complaint without prejudice.
Our next comment concerns the agency's responsibility to refer complaints to other government entities when it does not have jurisdiction over a complaint it receives. Section
.170(e) of the agency's proposed rule states that in such cases, the agency shall "make reasonable efforts" to refer the complaint to the appropriate government entity. We believe that the agency's obligation to refer these complaints is absolute and do not understand why the agency has limited its obligation in this area to one of making "reasonable efforts." We recommend that the agency eliminate the reasonable efforts language of this section so that it will read:
(e} If the agency receives a complaint*over which it does not have jurisdiction, it shall promptly notify the complainant and shall refer the complaint to the appropriate government entity. Finally, we request that the agency clearly state in its rules that the existence of an internal compliance procedure does not curtail the right of a complainant to obtain direct judicial relief. Specifically, a complainant should be able to pursue a - private ca.use of action in the courts { 1) without invoking the agency's internal compliance procedures or (2) after preliminary, but not final, findings have been issued by the agency. The purpose of this clarification is to ensure that the existence of an administrative hearing process will not result in the waiver of an individual complainant's right to a his or her "day in court." Were the complainant required to exhaust administrative remedies prior to going to court, the review of the complainant's case would be pursuant to the "arbritrary and capricious"
standard of the Administrative Procedure Act. This is compared against the de novo review owed the complainant under a private right of action which can be brought directly to the court. We appreciate the opportunity that you provided for us to comment on the proposed regulations. We are hopeful that the above comments and the attached comments on the Department of Justice proposed regulation will assist the agency in rewriting its regulation to reflect th~ true intent of section 504. Respectfully submitted, Karen Peltz Strauss Staff Attorney**
- National Center for Law and the Deaf 800 Florida Avenue, N.E.
Washington, D.C-. 20002 (202) 651-5454 Marc P. Charmatz National Association of the Deaf/ Legal Defense Fund 800 Florida Avenue, N.E. Box 2304 . Washington, D.C. 20002 (202) 651-5454 (V or TDD)
&J?c( /1ldJ!e1/)
Bonnie Milstein (e_J) Center for Law and Social Policy 1751 N. Street, N.W. Washington, n.c. 20036 ( 202) 872-0 670 Barbara Nelson American Council for the Blind 1211 Connecticut Ave., N.W., Suite 506 washingt,on, o.c. 20036 (202) 833-1251
/h-JLQ./0-~-- M,1,~,,(l_,,,L.,CJ.,0/L,, (*ta5 )
Arlene Mayerson Disability Rights Education and Defense Fund 2042 San Pablo Avenue Berkeley, CA 94702 (415) 644-2555 sI\.. J . l._lvO v<.....- j!J;__,*'fl--'V'-~/\_.:f- (f- n.) Sharon Rennert The Epilepsy Foundation of America 4351 Garden City Drive Landover, MD 20785 (301) 459-3700 (J -c.i-CJ/L-~,a_,, Ko--<<i Luv'- c_ k-P~) Victoria Raskin National Society for Children and Adults with Autism 1234 Massachuseits Avenue, N.W. Suite 1017 Washington, D.C. 20005 (202) 783-0125 d----U.,Q 1.j_A...,VU'-- /l{ (l.hD ~L(Lt)- ( /(_ f-Sj Justine Maloney An Association for Children and Adults with Learning Disabilities Government Affairs Committee 3115 No. 17th Street Arlington, VA 22201 (703) 243-2614 December 20, 1984
,CENTER 1 7 5 I 'll S T R E E T ,'; W *1 A 5 H I N G T O N O C 2 0 0 J 6 2 0 2 8 7 2
- 0 6 7 0 FOR Alan Houseman u,reclor LAW Clifton E. Curtis
- J. Davitt McAt11er AND 13 April 1984 Bonnu~ M Milstein P;iula Roberts SOCIAL Attorney al Law POLICY Aviva S. Meyer Dir~ctor of Development
'Nol adm1l1ed in D.C.
Stewart Oneglia, Chief Coordination and Review Section Civil Rights Division U.S. Department of Justice Rulemaking Docket 004 P.O. Box 1019 Washington, DC 20013 RE: Enforcement of Nondiscrimination on the Basis of Handicap in Department of Justice Programs NPRM, December 16, 1983; Supplemental Notice, March 1, 1984. COMMENTS OF THE CENTER FOR LAW AND SOCIAL POLICY, THE NATIONAL ASSOCIATION OF THE DEAF (NAO) AND THE NATIONAL CENTER FOR LAW AND THE DEAF (NCLD) The Center for Law and Social Policy is a public interest CJ. law firm which represents the interests of poor and previously unrepresented citizen~ before federal agencies, Congress, courts, and international forums. The Center also undertakes research on legal and policy issues affecting poor people, low-income workers, the disabled, and the delivery of legal services. The Center was created in 1969 and was the first of the foundation-funded ~ublic interest law firms. The National Association of the Deaf (NAD) is a national nonprofit organization located in Silver Spring, Maryland, with approximately 18,000 members who are hearing-impaired adults, parents of hearing-impaired children, and professionals in areas of services to deaf individuals. The NAO is the largest consumer
organization of hearing-impaired people in the United States. The National Center for Law and the Deaf (NCLD) is a nonprofit public interest law center that has provided legal education and services to hearing-impaired people since 1975. The NCLD is a public service of Gallaudet College in Washington, DC. The views expressed herein are those of the NCLD and do not necessarily reflect the opinions of Gallaudet. I. INTRODUCTION These comments consist of two parts. The first compares the requirements of Section 504 federally-conducted regulations with the Department of Justice Coordination regulations for federally-assisted programs. Consolidated Rail Corporation v. Darrone, U.S. , 52 L.W. 4301 (2/28/84), decided by the Supreme Court after this Notice of Proposed Rulemaking was published, underscores our concldsion that the federally-conducted regulations should be consistent with the federally-assisted regulations. The second part consists of a section-by-section analysis of the proposed regulations. We view this proposed regulation to have particular importance because of the Department of Justice's "lead agency" responsibility for coordinating the implementation of Section 504 throughout the federal government. See Executive Order 12250. We request that the Department of Justice final regulation reflect the changes proposed in the March 1st Supplemental Notice and further improvements recommended in these comments.
In addition, we ask that the Department of Justice insure that these changes are incorporated into the proposed and final regulations of all other federal agencies. Finally, we urge the Department of Justice to take prompt, vigorous steps to implement these regulations when they become final: to devote adequate staff to insure that the self-evaluati6ns required by these regulations are conducted and to disseminate the anti-discrimination policy to employees and to teach them how to implement i t . The Department should also insure that when complaints are filed, they are carefully, thoroughly, and promptly investigated. II. THE DEPARTMENT OF JUSTICE SHOULD NOT DEVIATE IN ITS REGULATIONS FOR FEDERALLY-CONDUCTED PROGRAMS FROM THE REQUIREMENTS IT HAS IMPOSED FOR COMPLIANCE WITH SECTION 504 ON RECIPIENTS OF FEDERAL FUNDS The Department of Justice's proposed regulations for its own programs differ in major respects from its coordination guidelines for federally-assisted programs. In the Preamble to its NPRM of December 16, 1983, the Department of Justice justifies these deviations by stating that they are required by the Supreme Court decision in Southeastern Community College v. Davis, 442 U.S. 397 (1979) and subsequent case law. 48 Fed. Reg. 55997, 55999. There is no basis for the Department's decision to propose a substantially different Section 504 regulation for federally-conducted and federally-assisted programs or activities. Congress mandated that the Federal government have the same nondiscriminatory obligation as are imposed on recipients of
federal financial assistance. The United States Supreme Court's unanimous ruling in Consolidated Rail Corp. v. Darrone, supra, means that the Department of Justice need not make any revision in its federally-assisted regulation. At this time and for the first time, the Department has sought in its Proposed Rules to change the definition of qualified handicapped per~on and to insert an overly broad escape clause called an "undue administrativB and financial burdens" defense. This language does not appear in the existing federally-assisted regulatory language. Indeed, inclusion of this new language flaunts Congressional intent, is contrary to the recent Supreme Court decision, and- is inconsistent with every federally-assisted regulation promulgated by federal agencies with respect to Section 504. As originally enacted, Section 504 of the Rehabilitation Act, 29 U.S.C. §794, provided: 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. The Department of Health, Education and Welfare, was the agency initially designated by the president to be responsible for coordination of Section 504. See Executive Order No. 11914. The Department's regulation was a product of an exhaustive and careful rulemaking process which spanned two administrations.
HEW published a Notice of Intent to Issue Proposed Rules on May 17, 1976, seeking public comment on the draft proposed rules which were attached to the Notice. 41 Fed. Reg. 20296 (1976). Comments were received in response to this Notice and were supplemented by a series of meetings conducted by HEW at various locations across the country .. See 42 Fed. Reg. 22676 (1976). On July 16, 1976, the Department published a Notice of Proposed Rulemaking, analyzing the comments received and setting forth revised proposed regulations for further comment. 29548 (1976). Additional comments were received and public meetings were again held after publication of the July 16th Notice. See 42 Fed. Reg. 22676 (1977). All of this information was considered and analyzed prior to the promulgation of the final rules and regulations on May 4, 1977, id. at 22676-77. See Darrone, supra, at n.14. In 1978, Congress extensively amended the Rehabilitation Act of 1973. In the course of considering these amendments, Congress comprehensively reviewed the Act as a whole and the HEW 1 regulations promulgated thereunder. Congress appended language to Section 504, extending its coverage to programs and activities 2 operated by the federal government. Congress voiced its specific
- 1. In enacting Section 505 (a) (2) in 1978, the Senate Committee specifically noted the HEW regulation. See S. Rep. 95-890, 95th Cong., 2d Sess. 19 (1978), reprinted in (1978) U.S. Code Cong. &
Ad. News *7312.
- 2. Congress clearly intended to impose the same nondiscrimination obligation with respect to qualified handicapped persons as were previously imposed on recipients of Federal financial assistance.
124 Cong. Rec. 13,901 (1978) (remarks of Rep. Jeffords); 124 Cong. Rec. E2668, E2670 (daily ed. May 17, 1978) id.; 124 Cong. Rec. 13,897 (remarks of Rep. Brademas); id. at 38,552 (remarks of Rep. Sarasin) .
approval of HEW regulations under Section 504. Senator Williams, a sponsor of the bill and Chairman of the Committee reporting the bill, remarked: With the signing of the regulations implementing Section 504 of the Rehabilitation Act of 1973 by the Secretary of Health, Education and Welfare, this administration has assured prohibitions on discrimina-tion for persons with disabilities by anyone receiving Federal funds. 124 Cong. Rec. Sl5562 (daily ed., Sept. 29, 1978); see id. at Sl5567. Senator Javits, another of the bill's sponsors, in introducing an amendment on reader services, stated that "there is a great demand for such services, largely generated through the landmark Title V provisions of the Rehabilitation Act, which have now been put into effect under regulations of HEW." Id. at Sl5576. During the House floor debates, Rep. Dodd declared that he "strongly supported the long-delayed issuance of the Section 504 regulations, believing then, as now, that the protection they establish for the handicapped are v~ry much needed." 124 Cong. Rec. H3974 (daily ed., May 16, 1978). Finally, Rep. Jeffords also commented on the significance of the HEW regulations: "As a result of the regulations, recipients of Federal dollars now had to do something to make i t possible for disabled people to be 3 involved." Id. at H3969. These expressions of approval of HEW's regulations are even more pertinent when viewed in light of the fact that both Houses of Congress considered the regulations in hearings j~st
- 3. It is significant that no expressions of disapproval were directed toward the HEW regulations.
one year before these floor debates. The House Subcommittee on Select Education met in September 1977 "for the purpose of oversight hearings on [HEW] regulations issued earlier this year to implement Section 504 of the Rehabilitation Act of 1973, prohibiting discrimination against handicapped persons in federally-assisted programs." Implementation of Section 504, Rehabilitation Act of 1973: Hearings Before the House Subcommittee on Select Education of the House Committee on Education and Labor, 95th Cong., 1st Sess. 1 (1977) (opening statement of Rep. BradeJ:!las, chairman of the subcommittee). Each member of the Senate and the House previously had been provided with a copy of the HEW regula-tions to review at the time the regulations were issued. Id. at 73, 76. Rep. Brademas stated at the outset of the House hearings: With the publication of the regulations for Section 504, disabled people look forward to their rightful opportunity for full participation in our society. Central to the implementation of these regulations must be the realization that what handicapped people want is access to programs. Inevitably, enforcement of and compliance with Section 504 will cause some readjustment problems. Costs may be incurred and modifications might be required. 4 Id. at 1.
- 4. The testimony of the House implementation hearings was specifically noted in the House Report on the 1978 Amendments.
HR Rep. No. 95-1149, 95th Cong., 2d Sess. 34 (1978). For the Senate hearings in 1977, see Rehabilitation Extension Amendments of 1977: Hearings on S.1712 & S.1596 Before the Subcommittee on the Handicapped of the Senate Committee on Human Resources, 95th Cong., 1st Sess. 220, 480-81, 554-55, 726-27 (1977). For an example of the significance of Congressional awareness of HEW regulations prior to comprehensive revision of a statute, see Board of Education v. Harris, 444 U.S. 130, 149 (1979).
On September 19, 1979, the Department of Justice proposed a rule entitled "Nondiscrimination Based on Handicap in Federally-Assisted Programs--Implementation of Section 504 of the RehabLlitation Act. 11 The proposed rule for federally-assisted programs noted that i t departed "where appropriate, from the language (but not the substance) of the HEW Section 504 rule." 44 Fed. Reg. at 59950. The Discussion of the P~oposed Rule contained an analysis of Southeastern Community College v. Davis, 442 U.S. 397 (1979). See 44 Fed. Reg. at 54955. The analysis stated that the Supreme Court "inferentially upheld the HEW regulation" and that the Department of Justice proposed rule was "consistent" with Davis. 44 Fed. Reg. at 54956. The Department of Justice published its final rule for federally-assisted programs or activities on June 3, 1980. 45 Fed. Reg. 37620. Prior to that time, the Department extended the comment period and held a public me~ting to provide for additional public participation. 45 Fed. Reg. at 37621. The analysis to the Final Rule also contained a discussion of the Davis decision. 45 Fed. Reg. 37631. The Supreme Court has recently reviewed, for the first time since Davis, the Section 504 federally-assisted regulation. In Darrone, the Supreme Court held: This Court generally has deferred to contemporaneous regulations issued by the agency responsible for implementing a congressional enactment. See, e.g., NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-275 (1974). The regulations parti-cularly merit deference in the present case~ the responsible congressional
committees participated in their formulation, and both these Committees and Congress endorsed the regulations in their final form. Darrone, at 52 U.S.L.W. 4304. The Court also noted that Congress had "incorporated the substance of the Department's (HEW) regulations into the statute (Section 504) ." Darrone at 52 L.W. 4304, n.15 (emphasis added). In sum, the Department of Justice adopted the HEW guidelines to Section 504. The Supreme court approved of the HEW regulation in strong terms. Government-wide consistency has 5 heretofore been maintained. The Proposed Rule for federally-conducted programs represents a step backward. Many of the provisions differ from, and impose lesser obligations than, the federally-assisted regulation thereby producing a "double standard." The only "justification" advanced by the Department is the bald allegation that Southeastern Community College v. Davis, 442 U.S. 397 (1979) - requires these changes. The Department has not previously felt that the Davis decision required i t to review its Section 504 federally-assisted regulation. As noted above, when the Department originally issued its proposed rules for federally-assisted programs, the Davis case had already been decided. The Department final Section 504 federally-assisted regulation also acknowledged the
- 5. At least 26 federal agencies have promulgated final Section 504 regulations for federally-assisted programs or activities. All of these regulations contain the same definition of the term qualified handicapped person and do not impose an across-the-board undue burdens defense. See Appendix.
impact of Davis, but the Department saw no need to make changes, 6 for example, in the definition of qualified handicapped person. The Department of Justice and the Presidential Task Force on Regulatory Relief engaged in lengthy considerations of the need for revision of the Section 504 federally-assisted regulations. On March 21, 1983, Vice President Bush announced that the Task Force and the Department had decided not to issue any revisions to these guidelines. In light of this reaffirmation, i t is unclear why the Department now proposes a different standard for federally-conducted activities. As noted above, the Department of Justice had already analyzed the Davis decision before publishing its proposed and final federally-assisted rules. In Davis, a hearing-impaired women was denied admission to the Associate Degree Nursing Program at Southeastern Community College because the college concluded that her handicap "could interfere with her safely caring for patients." 42 U.S. at 402. The court held that she was not an "otherwise qualified person" within the meaning of the statute because she could not meet the college's "legitimate physical requirements." Id. at 406-07. The college's physical requirements were found to be legitimate because the ability to understand speech without reliance on lipreading was "necessary for patient safety during the clinical phase of the program" and "indispensable for many of the functions that a registered nurse performs." Id. at 407. Finally, the HEW regulations did not and could not, in
- 6. See discussion of the definition of the qualified handicapped person.
light of the purpose of §504 require the University to make the "fundamental alteration in the nature of [the nursing] program" that would have been required to accommodate Davis. Id. at 410. In addition, the accommodations sought by Davis included "individual supervision by faculty members whenever she attends patients directly" and waiver of certain required courses. Id. at 407-08. Accordingly, the Court in Davis stated that the applicable HEW regulations might not be valid if they required "the extensive modifications necessary to include [Davis] in the nursing program." Id. at 410. Finally, the court in Davis found i t to be reasonably clear that the applicable HEW regulations, 45 C.F.R. §§84.44(a) and 84.44(d) (1979), did not require the kind of modifications that would have benefitted Davis. The court stated that §504 reflects "a recognition by Congress of the distinction between the evenhanded treatment of qualified handicapped persons and affirmative efforts to overcome the disabilities caused by handicaps." 442 U.S. at 410. It concluded from this distinction that "neither the language, purpose, nor history of §504 reveals an intent to impose an affirmative action obligation on all recipients of federal funds." Id. at 411. Furthermore, the court stated that the HEW regulations "would constitute an unauthorized extension of the obligations imposed by [§504]" if they "were to require substantial adjustments in existing programs beyond those necessary to eliminate discrimi-nation against otherwise qualified individuals." Id. at 410.
The court in Davis pointedly stated that "[w]e do not suggest that the line between a lawful refusal to extend affirma-tive action and illegal discrimination against handicapped persons always will be clear." Id. at 412. It specifically recognized the role of HEW in drawing this line by saying: "Identification of those instances where a refusal to accommodate the ~eeds of a disabled person amounts to discrimination against the handicapped 7 continues to be an important responsibility of HEW." Id. at 413. In sum, the Davis decision never invalidated the HEW regulations or even requLred that they be modified. Relying on the HEW regulation, the court held that a hearing-impaired person was not a "qualified handicapped person" because she did not meet the definition of that term as stated in HEW regulation, i.e., she did not meet all the academic and technical standards requisite for admission to or participation in the recipient's program. See discussion, at p. 15. Finally, the court acknowledged that the elimination of discrimination might involve some costs but refused to place undue financial and administrative burdens on federal recipients. There is thus no support in the Department's allegation that Davis requires the changes in the proposed rules for federally-conducted programs. The Preamble's Section Analys~s of the Proposed Rule submits that the definition of "qualified handicapped person"
- 7. In discussing HEW's rulemaking obligations under §504, the Senate Report on the 1974 Amendments to the Act recognized HEW's "experience in dealing with handicapped persons and with the eliminating of discrimination in other areas. " S. Rep. No.
93-1297, 93d Cong., 2d Sess. 39-40 (1974).
was a revised version of the definition appearing in the §504 federally-assisted regulation. "Subparagraph (1) deviates from existing regulations for federally-assisted programs because of intervening court decisions. This definition reflects the decision of the Supreme Court in Southwestern Community College v. Davis ... We have incorporated the court's language in the definition of 'qualified handicapped person. 111 45 Fed. Reg. at 55997. However, Davis was not an intervening decision and the Department had already analyzed the case in its federally-assisted 8 rule. The Department is wrong and there is no need to change the definition of qualified handicapped person.
- 8. The Supreme Court decided the Davis case on June 11, 1979, three months before the Department published its Proposed Rules for federally-assisted programs.
III. SECTION-BY-SECTION ANALYSIS A. Section 39.103--Definitions
- 1. Definition of Auxiliary Aids.
The preamble to the proposed regulation contains the language: Althou~h auxiliary aids are required explicitly only by Section 39.160(a) (1) they may also be necessary to meet other requirements of the regulation. This language should appear in the regulation itself. The - addition of proposed Section 39.160 of the regulation on communication aids makes this clarification necessary. it there is no specific statement that auxiliary aids may be Without necessary to make programs accessible or to overcome barriers that are not related to communication. In addition, problems have in the past arisen regarding attendant services. Generally, if other requirements are met, the services of an attendant may be necessary to achieve program - accessibility. This problem can be eliminated if the definition of auxiliary aids specifies that in some instances the services of an attendant may be an appropriate auxiliary aid. Instances where this may arise would be, for example, if a quadriplegic member of the National Council on the Handicapped or ATBCB needed an attendant to travel to meetings, this person may need to be provided with an attendant. We suggest adding the phrase "including attendant services" to Section 39.103 so that it reads:
"Auxiliary aids means services, iI'!_cluding attendant services or devices that enable handicapped persons, including those with impaired II (proposed addition underlined) ..
- 2. Definition of Facility.
The December 16th NPRM proposed definition of facility should be changed so that i t states clearly the fact that leased buildings are covered by Section 504. The clarification provided in the March 1st Supplemental Notice--that leased buildings are covered by Section 504--should be included in final regulatory language. The final regulation should reflect the recent decision in Rose v. United States Postal Service, No. 83-5830 (9th Cir., Feb. 16, 1984), and state that federal programs located in leased buildings must be accessible.
- 3. Definition of Handicapped Person.
Section 39.103 of the December 16th NPRM does not include the nonexclusive list of physical or mental impairments which is included in the definition of handicapped person in the federally-assisted regulation, 28 C.F.R. 41.31. Because omission of the list of impairments may cause specµlation that the Department of Justice wishes to change the scope of the definition of handi-capped person, this list should be included in the Department's final federally-conducted regulation. The clarification in the Supplemental Notice is helpful, but because i t will not be published with the final regulations, the problem of misintrepre-tation of the meaning of the omission could still arise.
- 4. Definition of Qualified Handicapped Person.
The December 16th NPRM proposes to change the definition of qualified handicapped person by adding the following language:
With respect to any agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility require-ments and who can achieve the purpose of the program or activity without modifications in the program or activity that would result in a fundamental alteration in its nature. (emphasis added) This is in addition to the definition of qualified handicapped person which appears in the Section 504 regulations for federally-assisted programs: Qualified handicapped person means: ... (b) with respect to services a handicapped person who meets the essential eligibility for receipt of such services. 28 CFR 41.32 The Department of Justice added this additional language according to the preamble to reflect the Supreme Court decision in Southeastern Community College v. Davis,442 U.S. 397 (1979). In response to that decision the Department of Just~~e has also deviated from federally-assisted regulations for federally-conducted programs by adding two new sections to its proposed regulations, 39.lSO(a) (2) and 39.l60(c) which limit the nondiscrimination obligation of the federal government to those situations where nondiscrimination would not impose "undue administrative and financial burdens" or "fundamentally alter the nature of the program." In the March 1st Supplemental Notice, the Department of Justice indicates that it would consider alternative language for its proposed definition of qualified handicapped person so long as the alternative remained faithful to the statute and current case law.
It is not necessary to deviate from the language in the federally-assisted regulation definition of qualified handicapped person to remain faithful to the statute and current case law. Davis and the courts which have interpreted i t have followed a two-step process. The first determination is whether a handicapped person meets the essential eligibility requirements for the program in question. Id. at 406. After that determination is made, there is a second inquiry: Can an accommodation be provided that would allow the handicapped person to benefit from the program that would not fundamentally alter the nature of the program or impose an undue hardship. Id. at 413. The proposed regulation simply and incorrectly combines these two separate inquiries. To answer the first inquiry, whether a handicapped person is qualified, it must be shown that he/she meets the essential eligibility requirements of the program. There is no reason to go further, as does the proposed regulation, with its additional requirement that the handicapped person show that he/she "can achieve the purpose of the program or activity without modifications in the program or activity that would result in a fundamental alteration in its nature. 119
- 9. The Department has recognized that the above-quoted language applies only in those instances where a person is required to perform services or achieve a level of accomplishment." In all other respects, the definition of qualified handicapped person" remains exactly the same as contained in the federally-assisted regulation. However, we should point out that adding the "required to perform services or achieve a level of accomplishment" to the "fundamental alterations" language in the definition of qualified handicapped person is not justifiable. The Department has invented the phrase "required to perform services or achieve a level of accomplishment" and has cited no support from Davis, any other (cont'd.)
If the above-quoted language needs to be added to the regulation at all, i t should be in §§150 and 160 rather than in the definition of qualified handicapped person. Both these sections answer the inquiry whether a federally-conducted program must make accessibility changes such as providing communication aids to enable a handicapped person t0 participate in, or to benefit from a program. This second inquiry is the essence of the determination of whether or not discrimination has or has not occurred. Sections 150 and 160 contain the language "fundamental alteration in the nature of the program." A serious problem results in having the phrase in these sections and in the definition of qualified handicapped person. The process established by the proposed sections 39.150 and 160 in the March 1st Supplemental Notice, if adopted in the final regulation, would require the Attorney General to determine whether the program accessibility and communication aids section of these regulations would impose an undue burden on the agency or result in a fundamental alteration in the nature of the program. However, if the "fundamental alteration" language is included in the definition of qualified handicapped person there will never be a situation where the Attorney General will have to make this determination. The determination of whether an accommodation will result in a fundamental alteration in the nature of a program will be made 9 (Cont'd). case, in any regulation. There is none. In the context of meeting essential eligibility requirements, the phrase is redundant, misleading, patronizing, and contrary to the intent of Section 504.
in the process of deciding the threshhold question of whether the individual meets the definition of "qualified handicapped person." B. Section 39.110--Self-Evaluation The alternative to section. 39.110 of the March 1st Notice sho~ld be adopted instead of the proposed section 39.110 from the December 16th NPRM. Self-evaluations--conducted with the assistance of disabled people and their advocates--are the cornerstone of cost-effective and efficient implementation of Section 504. Disabled people can provide insight into agency practices which have the effect of limiting access. Handicapped people and their advocates also can often suggest inexpensive solutions to the problems identified. Ferreting out problem areas and bringing the agency into voluntary compliance with the regulations is a cost-effective way to eliminate discriminatory practices. The specifics contained in the alternative section 39.110, namely the requirements that both policies and practices and their effects must be examined, that modifications be proposed and implemented, and that the findings and results of the self-evaluation be reduced to writing, insure that the agency will conduct more than a superficial investigation. The requirement of a written self-evaluation document will make i t possible for the agency to check its progress and insure that proposed modifications are actually implemented.
The Federal Advisory Committee Act (FACA), 5 u.s.c. App. 1 (1976) does not apply to this self-evaluation process because i t does not apply to "unstructured, ad-hoc meetings with little or no continuity." Id. at 1233. It is our under-standing that the Department of Justice has adopted the view that the FACA does not apply to one-time informal meetings between federal officials and a group composed or private persons. Thus, consulting with disabled people or their representatives as to whether policies and practices have a discriminatory impact upon disabled people does not require application of the FACA protections to this process. The FACA was designed as a control over advisory committees giving advice to the executive branch of the government to eliminate the useless, to strengthen the useful, and to prevent committees from becoming self-serving in the development of federal policies. See, Consumers Union v. Department of Health, Education and Welfare, 409 F.Supp. 473, aff'd 551 F.2d 466 (D.C.Cir. 1977). It has not been applied to every individual or group that provides advice or increases the flow of information into the executive branch. Nader v. Baroody, 396 F.Supp. 1231 (D.C.Cir. 1975). It clearly was not aimed at controlling the activities of handicapped persons and/or representative organizations, who may be able to provide ad hoc assistance to federal agencies on how to evaluate or modify their programs and policies to comply with the law or how to remedy the effects of discriminatory policies or practices.
While sections of FACA have been criticized for their loose construction, see Nader, i t is clear that "[n]othing in the Act shall be construed to apply to any local civil group whose primary function is that of rendering a public service with respect to a Federal program ... " 5 U.S.C., App. 2, §4(c) (1984). Current practices under the self-evaluation section of the §504 regulation for federally-assisted programs (45 C.F.R. 84.6) demonstrate that recipients are provided names of organizations, including state rehabilitation organizations, experienced in providing equal opportunities to handicapped persons [see, Guide to the Section 504 Self-Evaluation for Colleges and Universities, Appendix pp. 85-128 (National Association of College and University Business Officers, 1978)] and are encouraged to consult with all handicapped individuals within their organiza-tion or program. These consultations are intended to help the recipient determine what adjustments if any need to be made in a program or facility and to determine what services may be available to handicapped individuals through other agencies or organizations to avoid duplication. Id. at 3. These consultations do not approach the activities of groups established or utilized to provide advice on the development of regulations, see, Center for Auto Safety v. Cox, 580 F.2d 689 (D.C.Cir. 1978); Naticnal Nutritional News Assoc. v. Califano, 603 F.2d 327 (2d Cir. 1979); Food Chemical News, Inc. v. Davis, 378 F.Supp 1048 (D.D.Cir. 1974), or a formal commission established to provide major policy recommendations for the
management of the executive branch, see National Anti-Hunger Coalition v. Executive Committee, 711 F.2d 1071 (D.D.Cir. 1983). They serve to provide assistance as a public service without fixed agendas and regular participants. These co~sultations were clearly not within the purview of the Act and the requirements it imposes upon advisory committees. We strongly recommend, however, that the Department of Justice develop or provide the funds necessary to develop a self-evaluation guide similar to the one written by the National Association of College and University Business Officers. The National Association Guide was produced pursuant to a federal grant. The Guide has been widely used and is credited by many in the disability and the higher-education communities with promoting expeditious and effective access to federally-assisted programs. C. NOTICE--Paragraph 4, Supplemental Notice, March 1, 1984, 49 Fed. Reg. 7792 We heartily support the addition of the Notice language contained in the March 1, 1984 Supplemental Notice to the Department of Justice's final regulation. Because this sort of notice must be provided by recipients of federal financial assistance to beneficiaries in their programs covered by §504, it should be required of the federal government itself. Federal agencies must not impose less stringent requirAments for compliance on themselves than they impose on federal grantees. Furthermore, the existence of different obligations and standards for federally-conducted programs and federally-assisted programs will
cause unnecessary confusion. Primarily, however, this section coupled with section 39.160 will insure that disabled people who in the past may have been excluded from full participation in federal programs because of their handicaps will have an opportunity to learn that policies and practices have changed and that they may have new options in federal programs. D. Section 39.130--General Prohibitions Against Discrimination This section omits certain provisions that are found in the federally-assisted regulation. One example is that the federal recipients are forbidden to aid or perpetuate discrimination against a qualified handicapped person by providing significant assistance to an agency, organi-zation, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipient's program. See, 28 C.F.R. §41.Sl(b) (1) (v) Also missing from the proposed regulation is the following federally-assisted language: A recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration: (iii) that perpetuate the discrimination of another recipient if both recipients are subject to common administrative control or are agencies of the same state. See 28 C.F.R. §41.51 (b) (3) (iii). The preamble does not mention this omission except to state that this section is an adaptation of the corresponding section in the federally-assisted regulations.
See 48 Fed. Reg. 55997 (Dec. 16, 1983). This omission concerns us as i t seems that the federally-conducted ,; programs are not bound by this language and can therefore indirectly perpetuate discrimination by providing assistance to another agency that is discriminating against the handicapped. Section 130 (b) (6), dealing with licensing or certification programs, differs from the federal financial assistance regulations that prohibit discrimination "directly or through licensing ... arrangements." 28 C.F.R. §41.51 (b) (1). The proposed regulation provides that "the programs or activities of entities that are licensed or certified by the agency are not, themselves, covered by this part." See 48 Fed. Reg. 56002. The Department should include a prohibition against handicap discrimination in the standards for license or certification eligibility. The United States Supreme Court's decision in Community Television of Southern California v. Gottfried, 103 s.ct. 885 (1983), permits federal agencies through their proper rulemaking procedures to impose upon prospective licensees a duty not to discriminate against handicapped persons. The various courts deciding Gottfried all recognized that "rulemaking is generally a 'be~ter, fairer, and more effective' method of implementing a new industry-wide policy than is the uneven application of conditions in isolated license renewal proceedings." Id. at 893. The Davis court itself stated that "mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context." See Southeastern Community College v. Davis, 442 U.S. 397 at 405 (1979)
E. Section 39.150--Program Accessibility
- 1. Additional Program Accessibility Language, Section 39.150(a)
We support the proposal in the March 1st Notice which calls for the addition of the language from the Department of Justice coordination guidelines for federally-assisted programs, 28 CFR 41.56 into section 39.150(a), the final Department of Justice federally-assisted regulation. It is important that the language in the fed~rally-assisted and federally-conducted regulations be consistent so that there is no confusion or suppositions that the elimination of the language means that somehow there is a different standard for compliance in federally-assisted p:r.ogra:II'ES than in federally-conducted -programs. The language to be added to section 39.lSOEa) does more than restate the general prohibitions language from section 39.130. It modifies the first sentence of section 39.lSO(a). It becomes clear that in addition to the Tequirement that programs must be readily accessible to disabled people generally, there is .also a requirement that individuals who are confronted by barriers in generally accessible buildings must be provided with a program that is accessible to them.
- 2. Alternative Section 39.lSO(a) (2)
The December 1st NPRM contains a broad defense to the program accessibility requirements. Section 39.lSO(a) (2) would exempt the agency from compliance with that requirement if qompliance would "result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens."
If a defense of undue hardship is to appear in these regulations, i t should have the following strict limitations:
- 1. There should be a presumption in favor of operating programs so that they are accessible to handicapped people and against the application of the undue hardship defense. That is, the regulation should clearly state that the defense may be used only in rare instances and that it is presumed that the undue hardship defense will not apply.
- 2. If the defense is to be used by an agency, the agency should bear the burden of proof that allowing the handicapped person to participate in the program would cause an undue hardship to the agency as a whole.
- 3. If the defense is used the head of the agency must be responsible for making the final decision that providing an auxiliary or communication aid or allowing participation by qualified handicapped person in its program would impose an undue hardship on the agency when viewed as a whole. The head of the agency must explain the agency's use of the undue hardship defense in writing, analyzing the fact upon which the decision to use undue burden defense is based. The agency may not use the defense without first consulting with the Attorney General.
- 4. In the event.that taking an action has been found to impose an undue hardship, the agency shall nevertheless take any other actions that would ensure, to the maximum extent possible that handicapped persons receive the benefits and services.of the program or entity.
The March l, 1984 Supplemental Notice sets forth alternative language to be added to these sections to clarify how the "undue burdens" exceptions contained in part 39 .150 (a) (2) and 39.160(e) will be applied. The addition of these alternatives in the final regulations will be an important step toward ensuring that this undue burdens and fundamental hardship exception is applied only in rare instances and is not abused. However, we believe that further improvements in these sections are still needed. The March 1st Supplemental Notice improves the original proposed section 39.150(a) (z) in two important ways. First, as the rule originally read in December, it was not clear what the agency had to do in order to show either an "undue financial and administrative burden" or a "fundamental alteration." The Supplemantal Notice squarely places this burden of proof on the agency, giving the Attorney General the authority to make the decision that agency "compliance [with §504] would result in such alteration or burdens." See 49 Fed. Reg. 7793. We support this change.
Second, the March 1st Notic~ requires that if agency personnel believe that compliance with the program accessibility requirement would result in undue hardship or a fundamental alteration in the nature of the program, they do not have the authority to act o~ that assumption. The finding must be made by the Attorney General personally, and must be accompanied by a written statement of the reasons for reaching that decision. 49 Fed. Reg. 7793. Requiring the head of the agency to decide that an adjustment will be an "undue burden" should yield two important benefits. The first is that i t will prevent quick assumptions that providing an accessible program or communication aid will result in undue burdens. It emphasizes to agency personnel that precluding disabled peop~e from participation in a program is a serious step not to be taken lightly. It will keep them from acting on the basis of their stereotypical. assumption that disabled people will impose undue burdens and keep them from acting in a discriminatory manner. The second benefit of requiring that this decision is to be made only by the agency head is that it allows the agency to develop consistent, well-reasoned and researched decisions in this area and insures that the agency can be held accountable for its decisions. The U.S. Commission on Civil Rights in its recent study of the problem of discrimination on the basis of handicap, Accommodating the Spectrum of Individual Abilities, found that: Because of limited contact many nonhandi-capped people know little about the abilities and disabilities of handicapped people.
Although open hostility is now rare, prejudice against handicapped people, manifested as discomfort, patronization, pity, stereotyping and stigmatization remain common. Such prejudice involves an overreaction to different physical and mental abilities that imputes more difference to handicapped persons than actually exists. (emphasis added) Accommodating the Spectrum of ~ndividual Abilities, U.S. Commission on Civil Rights, Clearinghouse Publication No. 81, September 1983,
- p. 159. This type of overemphasis on the effect of disabilities results in an assumption that providing access will be more "burdensome" than it actually is. The requirement for Attorn,y General approval has the potential to eliminate some inappropriate use of this section.
However, the Department of Justice should specify either in this regulation or in a management directive how the head of the agency will determine whether an action imposes an undue burden. This guidance should include timetables for decisions. Without such clear guidance the protections theoretically provided by the revisions in this section will not be realized in practice. Programs will ~emain inaccessible and qualified handicapped persons will be subjected to discrimination during the time in which the agency is making a decision. Therefore, it is importan~ that waiting time be minimized and that an effective and informed decision-making structure be implemented immediately upon issuance of final regulations. Further, agency personnel must be instructed that they have no authority to determine whether an action would result in undue burdens or fundamental alterations.
- 3. Section 39.lSO(a) (2)--Undue Hardship Determination--Relevant Agency Resources The March 1st Supplemental Notice proposes that the Attorney General make the determination that compliance would result in undue burdens "after considering all agency resources available for use in the funding and operation of the conducted program." This language is inappropriate. It could be inter-preted to mean that the Attorney-General can determine that an undue hardship exists by looking at only a small section of the agency's operation. The relevant inquiry is not whether compliance would be too burdensome on a small segment of an agency, but whether i t would be an undue hardship on the agency. For example, in determining whether an agency should provide an interpreter so that a hearing-impaired person may benefit from or participate in a hearing, the agency head should not be allowed to consider only the resources remaining in the local office's budget for hearings. We propose that the regulatory language in this part 39.150(a) (2) should be "the decision that compliance would result in such alteration or burdens must be made by the Attorney General personally after considering all agency resources." This language would eliminate a broadening of the undue burdens" defense.
Comparing the cost of an accommodation with a line item in a local office budget is very different from comparing i t to "all agency resources." Every accommodation is likely to be defined as unduly burdensome in the first instance. The second recognizes that all of the resources of the agency are taxpayer monies which may not be used to support discrimination.
4* Section 39.150(a) (2)--0ther Actions Required Section 39 .150 (a) (2) of- the December 16th NPRM requires that when the agency has found that compliance with the program accessibility requirement would be an undue burden it "shall take any other action that would not result in such an a 1 t er at ion or such burden but wo u 1 d never the 1 e s s e.n sure that handicapped.persons receive the benefits and services of this program or activity." We support the inclusion of this language in the final regulation. This language coupled with the March 1st alternative language proposed for section 39.150 should insure that when it appears that one method of providing access is found to be too burdensome, other alternatives are explored. In addition, it removes some incentive for finding that an accommodation is an undue burden because even this finding does not end the agency's responsibility to accommodate the disabled person. F. Section 39.150--Communications This section on Communications is basically a good one especially as it pertains to requiring the placement use of TDDs in the agency when the agency communicates with the public by telephone. See §39.160(a) (2). This would allow the agency and hearing-impaired people to communicate with each other over the telephone as well as promote equal access to.the agency that hearing individuals already have.
This subpart, like section 39.150, is limited by subparagraph (e) which again allows the agency to use the "undue burden" defense. This parag~aph should be eliminated. However, if it is to appear, i t should be strictly limited in the same manner that section 39.150(a) (2) is. The analysis of the problems with that section apply here as well. (See pages 25-31 above.) G. Section 39 .160 (a) (1) (ii) --Auxiliary Aids The Department of Justice should take this opportunity to clarify a problem area. Section 39.160(a) (1) (ii) tries to distinguish between auxiliary aids that are needed to insure nondiscrimination and thus must be provided and auxiliary aids that are of a personal nature that assist the disabled person generally. This distinction is certainly valid. However, the language in section 39.l60(a) (1) (ii) which states that the agency need not provide "readers for personal use" or "other devices of a personal nature" fails to draw to a workable distinction between aids that must be provided and those that need not. A reader, for example, is provided in a sense for the "personal" use of the blind person when he or she is assisting a blind person to gain access to federal program material. The distinction is not whether the disabled person receives "personal" assistance or services, but whether the auxiliary aid is needed to insure accessibility in a federally-conducted program. Thus, the language in section 39.160(a) (1) (ii) should read: The agency need not provide individually prescribed devices, or readers for nonprogram material.
The phrase "or other devices of a personal nature is not necessary. Our proposed definition of auxiliary aids, section 39.103, makes clear that auxiliary aids need to be provided only to enable disa~led people to "have an equal opportunity to participate and enjoy the benefits of the program conducted by the agency." This proposed definition excludes auxiliary aids that the disabled person will use in other contexts outside of the federal problem. H. Section 39.170--Internal Compliance Procedures The preamble asks for comment on three specific issues. We will address those first and then add comments on specific subsections. Question #1: How prisoners' complaints should be handled. (ii) Before filing a complaint under this section, an inmate of a Federal penal institution must exhaust the Bureau of Prisons Administrative Remedy Procedure as set forth in 28 C.F.R. Part 542. The use of internal grievance procedures in prisons has been a hotly-debated topic. The nature of the relationship between warden and prisoner affects both the willingness of prisoners to use the grievance procedure and the attention that grievances receive from guards and wardens. Thus, a disabled prisoner who files a grievance regarding accessibility or accommodations is likely to receive the response that she/he
- is not entitled to anything "more" than other prisoners receive.
This response is not limited to prison environments, of course,
but the additional powerlessness imposed by closed institutions like prisons makes i t more likely that a disability complaint will be read as a request for undeserved "special treatment. The long-term remedy for such misreading of such a civil rights complaint must be training, technical assistance, and education in disability issues, and in §504 specifically. Since the Bureau of Prisons is a Department of Justice program, we strongly recommend that the Civil Rights Division immediately begin discussions with the Bureau of Prisons to assess the Bureau's training and technical assistance needs. Effective programs should be instituted addressed to those needs, immediately. In a recent Washington Post interview, the Director of the Bureau, Norman Carlson, was quoted as saying that federal guards receive two weeks training before beginning their jobs. Washington Post, March 15, 1984, Federal page. such a short training period does not allow time for inclusion of any_serious discussion of disability or other civil rights issues. Therefore, the issuance of these regulations presents an appropriate I opportunity to expand the training of guards, wardens, and other prison employees in disability and other civil rights issues. The shorter term remedy, and one which is specifically addressed to these proposed regulations, is to require that if the grievance procedure is to be used, the complaint be filed simultaneously with the appropriate Justice Department discrimi-nation investigation unit and with the prison warden. In other words, both the discrimination investigation procedure and the
prison grievance procedures should be invoked simultaneously. This procedure will permit the prison officials to benefit from technical assistance that the Department of Justice discrimination office should be able to provide. The simultaneous filing of the complaint will result in a more responsive and expeditious investigation. The preamble to this notice of proposed rulemaking states that Justice Department officials must "make every effort to achieve informal resolution whenever possible." at page 56,000, column 3. The simultaneous filing procedure will encourage such resolutions. Those with experience in disability law and in formulating reasonable accommodations will be able to help prison officials respond appropriately to the prisoner's complaint. The recommended procedure will also generate less paperwork for prison officials and more timely relief for the complainant prisoner. Question #2: Should there be an opportunity for a hearing before an Administrative Law Judge? Complainants should have the opportunity to obtain judicial relief for their discrimination complaint without invoking the compliance procedures of the agency. Complainants should retain that right even after the issuance of the preliminary findings. The Supreme Court recently confirmed the availability of a private right of action under §504 in Darrone v. Consolidated Rail, supra.
The history of administrative hearings in Executive agencies on civil rights questions has not been encouraging. Administrative Law Judges (ALJ) typically have little experience in adjudicating civil rights questions, and the delays involved in scheduling, obtaining final decisions, and final agency action have often been interminable. Another problem that the procedures for administrative hearings raise is the likelihood that by invoking a hearing the complainant will lose the opportunity for a judicial trial. The compliance procedures for the federally-conducted regulations, unlike those for the federally-assisted regulations, require the complainant to be a party to the proceedings, and to bear some of the costs. Under the federally-assisted regulations, it is the agency which invokes an administrative hearing. The complainant is simply that--the one who files the complaint. Thereafter it is the agency which determines, often without consulting the complainant, whether the recipient of federal funds has violated the civil rights statute. If the agency concludes that the recipient has, the agency is the plaintiff in an administrative hearing against the receipient. The complainant plays no role in the hearing, except perhaps as a witness. The purpose of the hearing is to prove that the agency should--or should not-- terminate the recipient's federal assistance. Its purpose is not, as it is in the federally-conducted regulations, to ascertain what remedy would correct the alleged discrimination. See, e.g.,
Canon v. University of Chicago, 441 U.S. 677 (1979). It is difficult to develop compliance procedures for an agency to use against itself, as is required here. Given the inherent conflicts of interest in this situation, the course that is more likely to protect the complainant is one which avoids a lengthy administra-tive review process. The proposed rule also references the hearing procedures established by the Administrative Procedures Act (APA). The APA makes i t clear that if a court is to review an ALJ's decision, the standard that the court is to use does not allow the complainant to present evidence to the court. Instead the court is limited to reviewing the record that the ALJ used as the basis for his opinion. That standard allows the court to determine only if the ALJ's--and the agency's--decisions were "arbitrary and capricious." 5 U.S.C. §706(a) (A). The Supreme Court has held that under this standard of review the court should focus on the "administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142. While the court can ask questions of the agency, the extent of its discretion to do so is limited. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420. Therefore, the apparent reliance on the arbitrary and capricious" star.dard and the inclusion of the complainant in the administrative hearing procedures, suggests that the complainant waives his right to his "day in court" if he requests an administrative hearing. That is not an acceptable outcome
and it contradicts Darrone v. Consolidated Rail, supra, and the legislative, judicial and administrative history of Section 504. Question #3: Is i t appropriate to permit both the complainant and the respondent to appeal the preliminary findings? We addressed the issue of an administrative appeal in our answer to Question #2. The answer to the question of whether i t is "appropriate for the agency to obtain an administrative appeal is also no, but for different reasons. The procedure, as proposed, requires a specific office in the age~cy to investigate the complaint. In order to conduct an effective and reliable investigation, that office must have expertise in the meaning and the implementation of Section 504. If that office finds that another office of the agency has engaged in discrimination, i t would be inappropriate for the* discriminating office to challenge the findings before an Administrative Law Judge. First, doing so would undermine the authority, based on its expertise, of the investigating office. Second, an ALJ is not likely to bring more expertise to the question than that of the investigating office. It is certainly likely that if the office found to be discriminating can challenge the findings, the authority of the investigating office will be accorded scant regard by the agency as a whole in that and future investigations. The investigating office has an inherently difficult role to play. Subjecting the findings of that office to an administrative hearing will cause undesirable friction within the agency and a certain delay in remedying the discrimination.
I . Section 39.170--Compliance Procedures: Specific Subsections
§39.170(d)--Filing a complaint.
- 1. Who may file?
(i) Any person who believes that he or she or any specific class of persons has been subjected to discrimination prohibited by this part may file a complaint with the Official. Comment: This is an unnecessarily limited description of who may file a complaint. We recommend that the regulations be altered to allow any person to file on behalf of an individual or a class of persons whom the complainant believes has been subjected to discrimination. This is necessary in the case of all disabled persons who are subjected to discrimination, but who may be unfamiliar with the opportunity to file complaints of discrimina-tion with appropriate agencies. While the proposed regulation suggests that an advocate or a friend may file a complaint of discrimination on behalf of a "specific class of person," the regulation also suggests that such a friend may not file a discrimination complaint on behalf of a single person. There does not appea~ to be any reason why this limitation should appear in the regulation. The factual basis for the lawsuit of United States of America v. Baylor Medical Center, 564 F.Supp. 1495 (N.D.Tex, 1983), appeal pending, is relevant here. In that case a hearing-impaired patient arranged for her own interpreter to accompany her into the hospital to explain the surgery that was about to be performed on her.
The Medical Center refused to admit the interpreter. As a result, the patient was unable to understand both the surgery, the post-operative procedures and the care she was to provide for her leg. Complications ensued, and a second admission to the hospital was necessary. The interpreter was able to file on his own behalf as well as on behalf of the patient because his rejection from admission by the hospital raised a §504 complaint on his own behalf. However, if the interpreter had not filed a complaint on his behalf the proposed regulations would have prohibited him from filing a complaint on behalf of the disabled person. Since the federal government has broadly described those who may file complaints in "Baby Doe" situations, there appears to be no reason why the Department of Justice should not take an equally broad view with regard to filing complaints in less sensational areas for the investigation of civil rights violations. Finally, the procedures adopted by the §504 federally-assisted regulations specifically answer this point. See 45 C.F.R. §84.61. Those regulations read as follows: Any person who believes himself or any specific class of individuals to be subjected to discrimination prohibited by this part may by himself or by a representative file with the responsible department official or his designee a written complaint. 45 C.F.R. §80.7(b). The phrase "or by a representative" is missing from the proposed Justice Department regulation. It makes no sense to allow a "representative" to file a complaint of discrimination against a federally-assisted entity but not a federally-conducted entity.
We strongly suggest that if the phrase was omitted for grammatical or other nonsubstantive reasons that the omission be corrected and that the phrase be placed in the final Department of Justice regulation. Compensatory Relief. The proposed regulations make no statement with regard to the availability of money damages or other compensatory relief. In most, if not all circumstances, it will be very difficult for an agency employee as well as an applicant for benefits or services to sue a federal agency successfully. The availability of compensatory relief will both encourage the filing of appropriate and necessary complaints and will force the agency to respond to those complaints more conscientiously than the agency might otherwise. Finally, there is no reason why the "make whole philosophy underlying all compensatory relief situations should not also apply to the enforcement o-f these regulations. See, e.g., Consolidated Rail Corporation v. Darrone, supra; Canon v. Univ. of Chicago, supra.
We appreciate the opportunity to comment on the proposed regulations. We know that the Department appreciates the serious impact that these regulations will have for the federal government as a whole, for all people with disabilities, and for civil rights enforcement generally. Therefore, if our comments raise questions that might be resolved by further discussion, we will be happy to respond. Bonnie Milstein Center for Law and Social Policy 1751 N Street, NW Washington, DC 20036 National Association of the Deaf Legal Defense Fund 800 Florida Avenue, NE Washington, DC 20002
,I Sheila National Center for Law and the Deaf 800 Florida Avenue, NE Washington, DC 20002
APPENDIX The following agencies have published Section 504 regulations for federally-assist~d programs. (See footnote 5, page 9, and accompanying text.) Agency Regulations Implementing Section 504 of Rehabilitation Act Final Rules ACTION .................................... 45 C.F.R. Part 1232 (1982); 44 Fed. Reg. 31;018 (1979) Agency for International Oevelopment/lDCA ....... 22 C.F.R. Part 217 (1982); 45 Fed. Reg. 66,415 (1980) Department of Agriculture ..................... 47 Fed. Reg. 25,458-(1982) (to be codified at 7 C.F.R. Part 15b) Civil Aeronautics Board ....................... 47 Fed. Reg. 25,936 (1S82) (to be codified at 14 C.F.R. Part 382) Department of Commerce ..................... 47 Fed. Reg. 17,744 (1982) (to be codified at 15 C.F.R. Part 8b) Department of Defense ........................ 47 Fed. Reg. 15,122 (1982) (to be codified at 32 C.F.R. Part 56) Department of Education ........*...........*. 34 C.F.R. Part 104 (1982); 45 Fed. Reg. 30,936 (1980) Department of Energy ......................... 10 C.F.R. §§ 1040.61-.74 (1982); 45 Fed. Reg. 40,515 (1980) General Services Administration ................ 47 Fed. Reg. 25,337 (1982) (to be codified at 41 C.F.R. §§ 101-8.300-.313) Department of Health and Human Services ....... 45 C.F.R. Part 84 (1982); 42 Fed. Reg. 22,6n (19n) Department of Housing and Urban Development *... 48 Fed. Reg. 20,638 (1983), as amended by 48 Fed. Reg. 20,902 (1983) (to be codified at 24 C.F.R. Part 8) Department of Interior .............*. : ........ 47 Fed. Reg. 29,546 (1982) (to be codified at 43 C.F.R. §§
,, 17,200-.299 ,,,
Department of Justice ........................ 28 C.F.R. §§ 42.501-.540 (1982); 45 Fed. Reg. 37,622 (1980) Department of Labor .......................... 29 C.F.R. Part 32 (1982); 45 Fed. Reg. 66,709 (1980) National Aeronautics and Space Administration ... 14 C.F.R. Part 1251 (1982); 44 Fed. Reg. 52,680 (1979) National Endowment for the Arts ................ 45 C.F.R. Part 1151 (1982); 44 Fed. Reg. 22,734 (1979) National Endowment for the Humanities .......... 45 C.F.R. Part 1170 (1982); 46 Fed. Reg. 55,894 (1981) Nuclear Regulatory Commission ................ 10 C.F.R. §§ 4.101-.233 (1982); 45 Fed. Reg. 14,535 (1980) National Science Foundation ................... 47 Fed. Reg. 8570 (1982) (to be codified at 45 C.F.R. Part 605) Office of Personnel Management *............... 5 C.F.R. §§ 900.701-.710 (1982); 45 Fed. Reg. 75,569 (1980) Small Business Administration ................. 13 C.F.R. Part 113 (1982); 44 Fed. Reg. 20,068 (1979) Department of State .......................... 22 C.F.R. Part 142 (1982); 45 Fed. Reg. 69,438 (1980) Tennessee Valley Authority .................... 18 C.F.R. Part 1307 (1982); 45 Fed. Reg. 22,895 (1980) Department of Transportation .................. 49 C.F.R. Part 27 (1982); 44 Fed. Reg. 31,468 (1979), as amended by 46 Fed. Reg. 37,492 (1981) Department of the Treasury .................... 31 C.F.R. Part 51.50 (1982); 46 Fed. Reg. 48,034 (1981) Veterans Administration ....................... 38 C.F.R. §§ 18.401-.461 (1982); 45 Fed. Reg. 63,268 (1980) Source: REPORT, National Center for a Bar=ier Free Environment, Volume 9, Number 3, Washington, DC, May/June 1983, p. 6.
c:1/-j,j,Ociation fo't c:RE.ta'tded Citiz£nj,
<w£j,tmoufand Cfz.aptE.'t
' " 15 West Third Street, Greensburg, PA 15601 (412) 837-8159 November 20, 1984
<< T NUMBflf p ROPO D RULE...,:_.:,_;_,-:-~ .,..
Nuclear Regulatory Commission Secretary c~ ptl.J U.S. Nuclear Regulatory Commission 1717 H Street NW Washington, DC 20555
Dear Secretary:
** westmoreland County Association for Retarded Citizens welcomes this opportunity to comment on your agency's proposed regulations for the enforcement of non-discrimination on the basis of handicapped in federally conducted programs proposed August 28, in the Federal Register.
The regulations you proposed in 1984 are extremely distressing. It is our judgment that they run contrary to the intent and spirit of the law as articulated in the Congressional Record. The definition section is extremely limited. It provides for a multi-criterion test: (1) Is the individual handicapped? (2) Has the person been discriminated against? (3) Whether the agency has provided or sought to provide reasonable accommodation. This places full burden upon the disabled individual. Should the person accept this burden, they still may be excluded due to the need for reasonable job modification. As a rationale for the definitions, you cite the case of First Impression of S.E. Community College v. Davis (422 U.S. 397, 1979). This decision dealt with a set of specific facts concerning the continuing education of Frances Davis. In the opinion of the Court at that time, after review of Miss Davis' specific record, she was not an otherwise qualified handicapped individual on the basis that with all of the necessary reasonable accommodations, she would still be unable to perform all of the functions necessary in her chosen profession of nursing. Justice Powell, in writing for a unanimous court, wrote that: "It is possible to envision situations where insistence on continuing past requirements and practices might arbitrarily deprive generally qualified handicapped persons of the opportunity to participate in a covered program. Technolo9ic.al adva.ncu ca.n be expected to enha.nce the oppolt.tun,U:,iu, to ILeha.bili,ta,te the ha.nd.lc.apped OIL o:theJtWMe to quaLl.itJ them 60IL .&ome. U.6e.nu.l employme.n.:t. Su.ch a.dvancu al.&o may enable. a.ti.a.,i.nmen;t on thue. goai..6 w.lthou.t hnpo.6b1.g undue. ob1.a.ncu and admi.n.uitlla.tive. bwuien.& u.pon a .6ta.te.. ThM, .6Uu.a.tion.& may aJt.h, e wlteJt.e 1Le.6U.6al .to modl6y an e.xi..6.ti.ng p1Z.O91ta.m might be.come. u.nll..ea.J.iona.ble. and fuCJumlna:tolLy lde.n.tl6ic.ation of, tho.6e. in.&.ta.nc.u wheJLe 11.entt.6a.l to ac.c.ommoda;t;e .the. need on du.,able.d peMoYL6 amou.n.:t.6 to d.l.6CJL.i.mb1.a.Uon a9a.in.&.t the. ha.ndlca.ppe.d c.ond.ltion c.an be a.n
-<.mpoJLt.a.rit ILUpon.&ib.i.U..t.y on He.a.Uh, Educ.a.ti.on and Wel6a.JLe." (Emphasis added.)
AFFILIATIONS United Way of Westmoreland County Westmoreland MH/MR Program Kiskl Valley United Fund, Inc. Allegher MH/MR Program Greater Latrobe Community Chest r, n~wI dgrd by c r .. ( ( /~e_/{.'+/-__*rr. ,J Association for Retarded Citizens, Inc.
- National and Pennsylvania *** ,,..ft/I\--
J
'O A~
'OlU ~ .
NOISSl'IY *,o; ." 01 . 1
Page 2 The proposed definition of an otherwise qualified handicapped person, we believe, is an attempt to establi sh a policy of refusal to modify existing programs, thus creating an undue hardship and burden upon the handicapped individual . The intention of Congress in Section 504 was to make real the rights of handicapped individuals. Regulations and definitions such as these strip away from the handicapped any hope in making these rights realities . Therefore, we respectfully request that no part of these regulations be proposed in any final form as it is our belief that they run contrary to the suggested spirit and intent of Section 504 of the Rehabilitation Act of 1973. Sincerely, {!/~ Director of Advocacy CWJ/mj
Ci) C f G1 24 P,1 :1 ~ PARAL.VZED VETERANS OF AMERICA CHARTERED 8V 1HE CONGRESS OF THE l,,Wl'1£D STA1ES October 23, 1984 Secretary Attention: Docketing and Service Branch U.S. Nuclear Regulatory Commission 1717 H Street, N.W. Washington, D.C. 20555
Dear Sir/Madam:
On behalf of the Paralyzed Veterans of America {PVA), I am submitting these comments as part of the rulemaking process for enforcement of nondiscrimi-nation on the basis of handicap in Federally conducted programs. PVA is a congressionally chartered veterans' service organization whose membership is comprised of 12,000 veterans of the U.S. Armed Services. Most of PVA's members incurred injury or dysfunction of the spinal cord, both service connected and non-service connected in origin. All of PVA's members are handicapped under Section 504 of the Rehabilitation Act of 1973, as amended. As you are aware, the Department of Justice (DOJ}, in assuming its responsibility for coordination and implementation of Section 504, prepared a ZJJTotoype regulation to be used in guiding your agency in the preparation of a proposed Section 504 rule for nondiscrimination in federally conducted programs. Following its circulation, DOJ published its own 504 regulation for federally conducted programs that is closely patterned after the prototype rule with some clarifying changes. Your proposed rule, patterned after these two documents, contains many provisions which are inconsistent with previous regulations and guidelines issued for nondiscrimination in federally assisted programs. Worse, PVA believes that the changes reflected in your proposed rule digress from the letter and the spirit of Section 504. In order to assist your agency in its rulemaking process, I am submitting a copy of PVA's comments which were sent previously in response to the proposed DOJ rule. Since the provisions in your proposed regulation are patterned closely after DOJ's documentation, these comments will be helpful to you. Acknowledged by can1./P,k~~ 801 Eighteenth St. , N.W., Washington, 0 .C. 20006 (202) USA-1300 /'
U;O l3)i')o<1 I SI lJf\ s*
October 23, 1984 Page 2 U.S. Nuclear Regulatory Commission Should you need additional information regarding our submission, please do not hesitate to correspond with us here at PVA's National Office. Until then, I remain. ( Sincerely, ~.~ Advocacy Attorney AJB:nap ENCLOSURE
Paralyzed Veterans of America (PVA) a congressionally chartered veterans' service organization, represents 11,000 veterans who have incurred injuries or diseases of the spinal cord, whether service-connected or nonservice-connected in origin. All of PVA's members are handicapped within the meaning of §504 of the Rehabilitation Act of 1973, as amended. These comments are being submitted on behalf of the members of PVA as part of 'Docket 004 which commenced on December 16, 1983 with a Notice of Proposed Rulemaking (NPRM) and continued with a Supplemental Notice on March 1, 1984. These comments shall address both sets of proposed rules. Six years after the promulgation of the 1978 Amendment to §504 prohibiting discrimination by the federal agencies and U.S. Postal Service, differences of opinion still exist between the federal government and handicapped citizens as how to implement this congressional mandate. This failure to carry out congressional intent is evidenced by the government's tardiness in promulgating nondiscrimintation regulations in federally conducted programs. BACKGROUND Following passage of the 1973 Rehabilitation Act, amendments added to it in 1974 required that regulations be promulgated under §504 in the same manner as they are required under Title VI of the Civil Rights Act. ll In 1977, a regulation guideline was issued by the Department of Health, Education and 1/ Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977).
- Cherry v. Mathews, 419 F.Supp. 922, 924 (DC DC 1976).
Welfare (HEW) carrying out its lead agency responsibility to implement §504.. I/*Nevertheless, the efforts by federal agencies to follow HEW and individually publish their own rules was virtually nonexistent. Then, in Paralyzed Veterans of America v. Smith, CA No. 79~1979 (C.p~ Cal.), nine federal agencies were ordered to issue regulations for nondiscrimination in federally assisted programs "on an expedited basis". At the time when the -1978 amendments to the Rehabilitation Act were passed, Congress was fully aware of the 1977 guideline regulation promulgated by HEW. When Secr~tary Califano issued the guideline regulation, he sent a copy to each member of the Congress asking the legislators whether or not the regulation guideline met with congressional intent. At the time when Congress chose ;o amend the Rehabilitation Act, it corrected_what it considered to be an improper statutory interpretation that excluded the federal government from compliance with §504. 'l/ In introducing the 1978 Amendment to correct this oversight, Representative Jeffords stated that his express intent was to "require each department and agency to promulgate II 43 Fed. Reg. 2132 (Jan. 13, 1978). 3/ The legislative history to the 1978 amendments indicated that the reason for this addition was that "[i]n September 1977 the Justice Department issued an opinion at the request of the Department of Health, Education and Welfare, declaring that the Federal Government was exempt from section 504. Somehow it did not seem right to ~e that the Federal Government should require States and localities to eliminate discrimination against the handic*apped wherever it exists and remain exempt themselves. So I developed a provision which. is in this conference report _that extends coverage of section 504 to include any function or activity in every department or agency of the Federal Government." 124 Cong. Rec. 38551 (1978) (statement of Rep. Jeffords). regulations covering the new parts of Section 504." 124 Cong.Rec. H.3970 {Daily ed. May 16, 1978.) In discussing the conference report concerning the i978 amendment, Representative Jeffords remarked that his intent in developing this provision was "in the interest of fairness and equity, to eliminate discrimination against the handicapped wherever it exists *." Each executive agency and the U.S. Postal Service was required to promulgate a regulation for nondiscrimination .in programs or activities conducted by the agency. Pub.L.N. 95-602, 2119, 92 Stat. 2982, (29 U.S.C. §794). On November 2, 1980, President Carter issued Executive Order 12250 transferring to the Attorney General the authority to review and coordinate the implementation and enforce~ent of §504. Even then, the government agencies failed to promulgate* regulations for federally conducted programs until a Court decision in Williams v. U.S.A.; U.S. Postal Service No. 80-5368 (C.D. Cal.) required that the U.S. Postal Service "publish expeditiously, and without further delay, a regulation implementing the. 1978 amendment to Section 504." Shortly afterwards, in its role as lead agency, DOJ published its own proposed §504 rule for federally conducted programs. This rule significantly departs from the language used in HEW's regulation guid~line for nondiscrimination in programs -receiving federal financial assistance. If the DOJ rule is left unchanged, the Government will be held to a standard of* nondiscrimination that is less than what is expected of recipients of federal financial assistance. PROVISIONS §39.103 Definitions - Qualified Handicapped Person DOJ proposes that "Qualified Handicapped Person" means-* (1) with respect to any agency program or activity under which a person is required to perform services or to achieve a level of accomplishment a handicapped person who meets the essential. eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that wo.uld result in a fundamental alteration in its nature; * * * " A handicapped person is not entitled to Section 504 protection unless he is found to be "otherwise qualified to participate in the program receiving federal financial assistance." The Supreme Court's interpretation of "otherwise. handicapped individual" as found in Southeastern Community College
- v. Davis !+/-_/ is generally consistent with congressional intent and the HEW regulation guideline. PVAdisagrees with DOJ's proposed definition because it places an additional burden on handicapped persons to demonstrate that their participation in a program will not cause modification in that program which will result in a fundamental alteration in its nature.
In Davis, a hearing impaired woman brought a §504 action after having been denied access to the school's Associate Degree Nursing Program. The school rejected her application because it found that her hearing disability would prevent her from safely participating in the clinical training program and from rendering adequate care to patients. The *Supreme Court reversed the holding of the Fourth Circuit and found that Mrs. Davis was not an otherwise !+/-_/ 442 U.S. 397 (1979). qualified handicapped person within the meaning of the statute because she. could not meet the college's physical requirements. These physical requirements were found to be legitimate and indispensable. *In addition,
§504 did not require the university to modify its nursing program or make the fundamental alteration that would have been required to accommodat.e Davis *.
The Court noted that if the regulations were interpreted to require the extensive modifications necessary to include Davis in the nursing program, "grave doubts" would be raised concerning the validity of the regulation. Section 504 does not specifically refer to affirmative action and the language, purpose or history of the provision did not support such an argument. The Davis Court never considered whether the plaintiff would.effectively perform as a nurse in* a different setting, or doing a different job. In that respect the. case had limitations which may not be faced in a large federal agency where job structure may provide greater flexibility and opportunity. So long as a handicap is "extraneous to the activity sought to be engaged in,. - the handicapped person is 'otherwise qualified' * " Anderson v. Banks, 520 F.Supp. 472 (S.D. Ga. 1981). Unlike Davis, not every case which raises the qualified handicapped person issue will be predicated upon meeting specific physical requirements. The result of DOJ's virtually exclusive reliance on Davis alone causes serious problems with the proposed rule. It creates a proposed rul~:which is inconsistent with the federally assisted regulation guideline and places at variance DOJ' s own rule for fed.er ally* assisted programs which was promulgated after the Davis decision. The*use of additional criteria has already been criticized by the courts. In Dopico v. Goldschmidt, 687 F.2d 644 (2d Cir. 1982), the Court cautioned against using nonessential criteria to determine the right of mobility impaired persons to use mass transit. This proposed criteria will be used by DOJ to subjectively eliminate those persons who they perceive may not be able to perform the job. In.Davis, the Supreme Court made clear.that "mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context." 'I,/ -Worse, the phrase "level . of achievement" contradicts HEW's interpretation regarding employment where* a handicapped person must be able to perform the, "essential functions of the job." Moreover, regulations interpreting Title VI, which served as the model 11 for §504, prohibit the use of ** *
- criteria or methods of administration which have the effect of subjecting individuals to discrimination * * * " §_/
While subsequent cases have relied extensively on Davis, it has not precluded the Court from taking ". . .modest affirmative steps to accommodate- the handicapped." ?./ Determining whether_ an accommodation is required involves two steps. First, wi_ll the handicapped person be able to benefit from the program? In other words, is he qualified. This rule-means that §504 does not require a, recipient to modify its program to accommodate handicapped individuals who are not otherwise qualified. The second factor, undue burden, does concern otherwise qualified handicapped individuals.because the 5/ Also, Kling v. County of Los Angeles 633 F.2d 876 (9th Cir. 1980) where a nursing school violated §504 when it refused to admit the plaintjff based on "generalized assumptions about her physical health."
§_/ 45 C.F.R. §80.3(b)(2).
7/ American Public Transit Association v. Lewis 655 F.2d 1272 (D.C. Cir. 1981). cost of an accommodation could result in the modification of an existing program. ~i However, it must.be remembered that the cost factor is not conclusive as to whether discriminations exists. The law permits affirmative obligations to .remedy this discrimination even when it may entail some costs, but* this is not *clear from the regulation. As stated*previously, Congress had the opportunity to affirm or change existing law in its 1978 amendments. Congress certainly intended to impose the same obligations on the* government as on recipients of federal financial assistance. If Congress believed that the "qualified handicapped person" definition did not represent its w.ill, Congress would have sought to change that too. On the contrary, some, of *the HEW regulations for federally assisted programs which provided funds for services to accommodate handicapped persons were incorporated into the 1978 amendments. This reaffirmation can be ~onstrue,d only as approval of the regulations. '}_/ DOJ has interpreted Davis to prohibit discrimination against handicapped persons *where such prohibition does not impose undue financial. and administrative burdens. Although this is a basic interpretation of the ~/ Upshur v. Love, 474 F,Supp. 332 (N.D. Cal 1979). See also Pushkin v. Regents of the University of Colorado 658 F.2d 1372 (1981). 9/ The recent United States Supreme Court's unanimous ruling in Consolidated Rail Corporation v. Darrone, 52 U.S.L.W. (U.S. Sup. Ct., February 24, 1984) supported the proposition that the federally conducted regulations should be. consistent with the proposed federally assisted rule since the Court agreed after reviewing §504's legislative-history that the federal government has the same nondiscriminatory obligations as those which are imposed. on the recipients of federal financial assistance.
Supreme Court's language, it is not conclusive, especially when DOJ has failed to consider subsequent court decisions which modify and clarify the Davis decision. There is no valid reason why DOJ should not adopt the same definition of qualified handicapped person as is found in the federally assisted rule. Since the fundamental alteration language which concerns DOJ appears in the program accessibility provision of this proposed rule, there is no reason why DOJ needs to include it in definition of qualified. handicapped_person.
§39.103 Definitions "Auxiliary Aids" means services or devices that enable persons*
with impaired sensory,.manual or.speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency. For example,. auxiliary aids useful for persons with impaired vision include readers, Brailled materials, audio- recordings, telecommunications devices, and.other similar services and devices for* deaf persons (TDD's), interpreters, notetakers, written materials, and other similar services and devices. Although the preamble to the proposed rule suggests that auxiliary aids may be necessary to meet other requirements of the regulation, the definition of auxiliary aid should be expanded to include aids for the physically impaired. The definition should also be expanded to include attendant services which may be needed to aid severely disabled persons traveling during the course of
- -their work.
The term "auxiliary" also implies something that is extra or discretionary. PVA encourages DOJ to change this section to "Aids for Reasonable, Accommodation" and alter the language to ". *.* means services or devices, including aid and attendant services,. that enable handicapped persons,. including those with impaired sensory, mariual or speaking skills. " "Facility" - DOJ has attempted to clarify this definition "to include all programs and activities conducted by the* agency regardless of whether the facility in which they are conducted is owned, leased, or used on some other basis by the agency." The language in,the Preamble, which is consistent .with the Court's decision in Rose v. U.S. Postal. Service No. 83-5830 (9th Cir.), should be incorporated into the proposed rule. §39.110 Self-Evaluation and Notice (a) The agency shall, within one year of the effective date of this part, evaluate, with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons, its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and to the extent modification of any such policies and practices is required, the agency shall* proceed to make the necessary modifications. (b) The agency shall, for at least three years following. this
.section, maintain on file and make* available for public inspections:
(1) A list of the interested persons consulted, (2) A description of areas examined and any problems identified, and (3) A description of any modification made. Notice. The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of t_his part and its applicability to the programs or activities conducted by the agency, and.make such information available to them in.such manner, as the Attorney General finds*necessary to apprise such persons of the protections against discrimination assured them by Section 504 and this part. PVA supports the inclusion of self-evaluation and notice provisions, and recommends that DOJ also consider including (1) an assurance to be submitted with the self-evaluation that will include, among others, that the effects of the discriminatory policy wiil be eliminated, (2) a transition plan for compliance, and (3) specific.modification requirements including those with impaired vision or hearing. Notification of agency policy regarding nondiscrimination should also be specifically distributed in recruitment materials as well as general information. Alternative §39 .110 also raises the ques*tion as to whether or not the Federal Advisory Committee Act (5 U.S.C. App.) is applicable to a group of interested persons who would consult with a federal agency in implementing its self-evaluation. Only groups having an established structure and defined purpose constitute "advisory committees" within the meaning of the Act. " * * . [I]t was not intended to apply to all amorphous~ ad hoc groups . .
- who meet." Nader v. Baroody 396 F. Supp. 1231 (1975). Therefore, PVA believes that FACA is not applicable to this regulation.
§39.130 General Prohibition Against Discrimination This section should be revised in order to be consistent with the federally assisted rule to include, a. prohibition on federal agencies to "aid or perpetuate discrimination against a qualified handicapped persons by providing significant assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit or service to beneficiaries of the recipients' program." 1:.Q/ This provision is important when a situation occurs where . an agency, not covered under §504, is discriminating with the assistance of a federal agency that has §504 responsibilities. It affords the beneficiary an opportunity to bring a complaint against a responsible party rather then preclude him from 1:.Q/ 28 C.F.R. §41.5l(b)(l)(v). any relief at all. An example of this situation would be the Federal Communications Commission (FCC) which is not responsible for promulgating §504 regulations. If the FCC, with the assistance of another federal agency, is discriminating against a beneficiary, then that beneficiary will-be able to bring an action against the federal agency rather than being precluded from any relief. In addition, there is language missing from the regulation which provides that, "a recipient may not, directly or through contractual or other arrangements, *utilize criteria or methods of administration (iii) that perpetuate the discriminat.ion of another recipient if both recipients are subject to common administrative control or are agencies of the same state.I' .!.!_/ Inclusion of this provision will ensure that federally conducted programs will not indirectly discriminate by providing assistance to another agency that is discriminating. §39*.130(b) (6) Licensing and Certification Programs The agency may not administer a licensing or certification program in a manner that subjects qualified handicapped persons to discrimination on the basis of handicap, nor may the agency establish requirements for the programs or activities of licensees or certified entities that subject qualified handicapped persons to discrimination on the basis of handicap. However, the programs or activities of entities that are licensed or certified by the agency are not,. themselves, covered by this part. Q/ 28 C:F.R. §41.5l(b)(3)(iii). The proposed regulation does not cover programs or activities that are licensed or certified by the agency. This provision differs from the provision in the federally assisted rule. In view of the Supreme Court's decision in Comm.unity Television of Southern California v. Gottfried 103 S. Ct. 885 (1983), DOJ should include a prohibition against handicap discrimination in the standards for licen$e or certification eligibility. Gottfried recognized that "rulemaking is generally a 'better, fairer, and more effective' method of implementing a new industry-wide policy than is the uneven application of conditions in isolated license renewal proceedings." §39.160 Undue Burden DOJ proposes to insert the following before the last sentence of
§39.160(e): "In those circumstances where agency personnel
- believe that the proposed action would fundamentally alter the program or would result in undue financial and administrative burden, the agency has the burden of proving that compliance with §39 .160 would result in such alteration or burdens. The-decision that compliance would result in such alteration or burdens must be made- by the Attorney General personally, after considering all agency resources available for use in the funding and operation of the federally conducted program and must* be accompanied by a written statement of the reasons for reaching that conclusion."
Two problems are raised with this provision. First, Davis offers little guidance in determining what is an undue burden. Reasonable accommodations have been made in lieu of "modifications" contemplated by DOJ, but it is not clear in the regulation how reasonable accommodation differs from*an attempt at changing the fundamental nature of a.program. Generally, a recipient of federal financial assistance must make reasonable accommodations or modifications if the modification or accommodation is reasonable and does not. impose an undue hardship on the recipient of federal financial assistance. The HEW regulation for federally assisted programs, 45 C.F.R. §84.12(a) (1981), also refers to reasonable accommodation in the context of employment and has an accompanying list of factors to be taken into account in determining reasonableness as opposed to undue hardship. Even when using these factors, it is difficult to make such a determination. Alternatives for compliance should be suggested in the proposed rule. For example, when costs for accommodation could be extended over several years, th~ burdensome aspects may be eliminated. Second, it should be recognized that all agency resources should be considered in determining whether or not an accommodation can be made rather than just the funds attached with the program. In Davis, the Court said that
§504 reflects "a recognition by the Congress of the distinction between the evenhanded treatment of qualified handicapped persons and affirmative efforts to overcome the disabilities caused by handicaps." Davis 410. The Cou~t also said that "[w]e*do not suggest that the. lin~* between a lawful refusal to
. extend affirmative action and illegal discrimination against handicapped persons always will be clear." p.12, and "on occasion the elimination of discrimination might involve some costs * * * " 442 U.S. at 411 n.10 * . Following this, courts have recognized that §504's mandate to end discrimination may involve some costs.* That recognition should 1,e reafffirmed in this regulation. The totality of the agency's budget should be the determining factor.
§39.170 Compliance Generally, this section is comprehensive but should include:
-13;_
(a) a provision for obtaining the expertise of the Architectural and Transportation Barriers Compliance Board to help resolve deficiencies in construction or location of faci'lities; (b) to change the phrase "preliminary findings" in §39.170(h) to "letters of findings" since this stage of compliance may constitute the final agency decision; (c) a provision for judicial review; (d) a provision to*ensure that all other regulation forms and directives issued by the Department are superseded by the nondiscrimination requirement of this regulations; (e) a provision for the availability of the Federally Agency to award attorney fees in administrative proceedings; and (f) a provision* for the availability of compensation to the prevailing party. CONCLUSION PVA encourages the Department of Justice to adopt a §504 regulation that is consistent with the regulation promulgated for the federally assisted programs and activities. When Vice President George Bush announced on March 21, 1983 that" * *
- extensive change of the existing 504 coordination regulations were not required * . * " PVA, along with other organizations representing handicapped persons expected that the major regulatory I
provisions which protected the civil rights for handicapped persons had the strong support of the Administration. Instead, it has become patently clear that several of the proposed changes in DOJ's proposed rule represent a serious breach of the Vice President's commitment and departure from the strong legal principles which had been enunciated by the Congress and the courts regarding §504. At the very least, PVA believes the DOJ should promulgate a regulation that closely follows the,specifi~ language that DOJ used in its 1980 federally assisted rule. The* official analysis to that regulation indicates that those 1980 provisions were fully "consistent with the holding in Davis." 45. Fed. Reg~ 37631 (1980)~ The language in this proposed rule indicates that the Department of Justice i~ working towards narrowing the scope of civil rights*protections for handicapped persons. Only a *final rule that returns to language used in the federally assisted rule can correct this. misconception. Page 2 (e) The prohibition in the process of selecting sites for construction of new. facilities or existing facilities to be used by the agency should also. apply to construction of additional buildings at an existing site. Section - .140 Employment This whole section is too brief and weak, and does not give enough attention, support and strength to employment of disabled persons. No reference is made to recruitment and hiring, making reasonable accommodations, and review of pre-employment ~xaminations and inquiries and tests. Section - .150 Program Accessibility: Existing Facilities (a)(2) The agenties are again interpreting the Davis case too broadly and g1v1ng agencies an 'out' in rejecting handicapped applicants. The concept used by recipients, that of "undue hardship" should be reinstated in this instance. It is more specific and less discriminatory, and is a more positive term than 11 burden. 11 It is good to see that the burden of proving that compliance would result. 0 in such alterations or undue hardship is the responsibility of* tl"i"e"ag'enfy and not the disabled individual. It is also a good provi's'fon to have one individual responsible, rather than several persons making indiscriminate decisions. Section - .151 Program Accessibility: New Construction and Alterations Existing buildings leased by the agency after the effective date of this regula-tion should be required to meet the new construction standard. Section - .160 Communications (a)(l) The agency- should provide an 11 equal 11 means of communication for dis-abled persons, not just an 11 effective 11 one. In conclusion, please give due consideration to this matter of citizens rights. Sincerely, 1:',.;*./' SL/ar U.S. ~.JUCLf:.i\R P.f:(::: ~'.~ ;\"t(-..;::,y (!JA,\r\\fSSION DOCK;::T !t,./C . P-. (: -:,...
- t'. CE SEC:T l()t-..\
( 10/21/rr</ I
**~':
. , '2-
~/ ;)~ ~ilq,,c._
34138 Sec. Federal Register I Vol. 49, No. 168 / Tuesday, August 28, 1984 I Proposed Rules
. ,, Sec. Sec II
*l 45i.151 Program accessibility: New 500.160 Communir.atioas. 4.561 {-.16!J to 4.569 (-.169) tReservedJ construction and alterations.
457.152--457 .159 {Reserved]
- 500.161-500.169 {Reserved).
500.170 Compliance procedures.
.. 4.5i0 (-.170)' Compliance procedures. I 457.160 Ccmmunications.
457.161-457.169 {R~erved] 457.170 Compliance procedures. 500.171-500. 999 lReservedJ. Authority: 29 U.S.C. 794. 4.5n (-.171) to 4.999 {-.999) {Reserved) Authority: 29 U.S.C. 794. l 457.171-457.ro9 lReservedl NUCLEAR REGULATORY NATIONAL CREDIT UNION fl ADM!NJSTF.A TION Authority: 29 U.S.C. 794. COMMISSION NATIONAL COMMISSION FOR 10CFRPART4 12 CFR Part 794 EMPLOYMENT POLICY ADDRESSES: Comments should be sent ADO'Rl:SSES: Comments should be sent 1 CFR Part 500 to: Secretary, U.S. Nuclear Regulatory to: Secretary of the NCUA Board, 1776 G Commission, 1717 H Street NW, Street r,,;w., Washington, D.C. 20456. ADDRESSES: Comments should be sent to: 1522 K Street, NW., Suite 300, Washington, D.C. 20005. Comments received will be available for public inspection at National Washington, DC 20555, Attention: Docketing and Service .Branch. Comments received will be available for public inspection at NRC Public Document Room. 1717 H Street NW, Comments received will be available for public inspection .at 1776 G Street NW., Washington, D.C. 20456, from 8:00 a.m. to 4:00 p.m. J\fon.ruiy through Friday I ! l except legal holidays. Commission for Employment Policy, 1522 K Street, NW~ Suite 300, Washington, DC 20555 from 8:15 A.M. to
. 5:00 P.M. Monday through Friday except FOR FURTHER INFORMATION CONTACT: I Washington, D.C. 20005 from 8:30 A.M.
to 5 P.M. Monday through Friday except legal holidays. FOR FURTHER JNFORMATlON CONTACT: Mr. Harry Blaisdell, 1776 G Street NW.,* Washington. D.C. 20456, (202) 357-1080: l TDD Contact Number {202) 357-1-050. legal holida.YJS. . Mr. Edward R Tucker, Office of Small AoR FURTHER 111\FORMATIO~ CONTACT: and Disadvantaged Business List of Subjects in 12 CFR Part 794
.,_-nn Donohue, National Com~~'isgjo,ri.:frr Utilization/Civil Rights, U.S. Nuclear Blind. Civil rights, Deaf, Disabled, Employment Policy, 1522 K Street, NW., Regulatory Commission, Washington, Discrimination against handicapped, Suite 300, Washington, D.G. 20005, (202) DC 20555, Telephone: {301) 492-7697, Equal employment opportunity, Federal 724-1545, (202) 724-7678 {TDD). TDD: (202) 724-7678. buildings .and facilities, Handicapped, List of Subjects in 1 CFR Part 500 Lisl of Subjects in ~O CFR P.art 4 )'.;ondiscrimination, Physically Blind, Civil rights, Deaf, Disabled, handicapped.
Administrative practice and Discrimination against handicapped, procedure, Blind, Civil Rights, Disabled, I\ is proposed that Title 12 of the Code Equal employment opportunity, Federal Discrimination against handicapp_ed, of Federal Rt?gulations be amended by buildings and facilities, Handicapped. Equal employment opportunity, Federal adding Part 794 as ~t forth at the end of Nondiscrimination, Physically building and facilities, Handicapped. this document.
- handicapped. Nondiscrimination, Physically Rosemary Brady, It is proposed that Title 1 of the Code handicapped. Secretary, J\'CU.-3. Board.
of Federal Regulations be amended by It is -proposed that Tit1e 10 of the Code
- adding Part 500 as set forth at the end of of Federal Regulations be amended by PART794-ENFORCEMENTOF this document. adding Subpart E to Part 4 as set forth at
- NONDtSCRlMfNATION ON THE BASIS Patricia W. Hogue, the end of this document. OF HANDICAP IN PROGRAMS OR Director, National Commission for William J. Dircks, ACTIVITIES CONDUCTED BY Employment Policy. NA TtONAL CREDIT UNION
- Execulive Director for Operations.
ADM!N!STRATJON - -ART 500-ENFORCEMENT OF PART 4-{AMENDED] Sec.
- NONDISCRIMINATION ON THE BASIS Part 4, Subpart :E-Enforcement of 794 -.101 Purpose.
OF HANO:CAP IN PROGRAMS OR Nondiseriminatlon on the Basis of Handicap 794 -.102 Application. ACTIVITJES CONDUCTED BY in Programs or Activities Conducted by U.S. i94 -.103 Definitions. NATIONAL COMMISSION FOR 794 -.104-:794.109 [Reserved] Nuclear Regulatory Commission EMPLOYMENT POLlCY 794 -.110 Seli-ernluatior~ Sec. Sec. 794 -.nl Notice. 4.501 (-.1011 Purpose. 500.101 Purpose. 794-.112-794.129 {Reserved] 4.502 (-:102) Application. 500.102 Application. 4.503 (-.103) Definitions. 794-.130 Gener.al prohibitions .againsl 500.103 Definitions. 4.504 (-.104) to 4.509 {-.109) [Reserved] discrimination. 500.104-500.109 [Reserved]. 4.510 (-.110) Self-evaluation. 794-.131-794.139 {Reserved] 500.110 Self-evaluation. 4.511 [-.111) Notice. 794 -.140 Employment 500.111 Notice. 4.51'2 f-.112) to 4.529 t-.129) 1Rescrved] 794 -.141-794.HB !Reserved] 500.112-500.129 [Reserved]. 4.530 {-.130) General prohibitions against i94 -.1-'.19 Program accessibility: 500.130 General prohibitions agaim;t discrimination. Discrimination prohibited. discrimina lion. 4.531 (--131} to 4.539 (-.139) {Resel"\>'ed) 794 -.150 Program ac=ibility: Eristing 500:131-500.139 [Reserved!. 4.540 (~.140) Employment. facilities. 500.140 Employment. 4.541 {-.l41J to 4.548 {-. 148) {Reserved! 794 -,,.151 Program accessibnity: New 500.141-500.148 [Reserved]. 4.549 .(-.149) Program accessibility: construction and alterations. 500.149 Program accessibility: Discrimination prohibited. 794-,152-794.159 {Reserved! Discrimination prohibited. 4.5501-.150) Program accessibility: Existing 5()0.150 Program accessibility: Existing 794 -.160 Cammuni.c2tions. facilities. facilities. 7S<l -.161-794.169 [Reserved] 4.551 (-.151) Program accessibility: New 500.151 Program accessibility: New comtructkm and alterations. 794-.170 Compliance procedures. construction and alterations. 4.552 (-.152.J to 4.559 (-.159) [Resen,ed] i94 -.171-794.999 {Reserved] 500.152-500.159 [Reserved]. 4.560 (-.160) Communications. Authority: 29 U.S.C. 79~.}}