89-48 EPW CRS Report for Congress Section 504 of the Rehabilitation Act: Statutory Provisions, Legislative History, and Regulatory Requirements Mary F. Smith Specialist in Social Legislation Education and Public Welfare Division January 19, 1989 Congressional Research Service * The Library of Congress The Congressional Research Service works exclusively for the Congress, conducting research, analyzing legislation, and providing information at the request of committees, Members, and their staffs. The Service makes such research available, without partisan bias, in many forms including studies, reports, compilations, digests, and background briefings. Upon request, CRS assists committees in analyzing legislative proposals and issues, and in assessing the possible effects of these proposals and their alternatives. The Service's senior specialists and subject analysts are also available for personal consultations in their respective fields of expertise. SECTION 504 OF THE REHABILITATION ACT: STATUTORY PROVISIONS, LEGISLATIVE HISTORY, AND REGULATORY REQUIREMENTS SUMMARY Section 504 of the Rehabilitation Act prohibits discrimination solely on the basis of handicap against otherwise qualified persons with handicaps in federally funded programs, the executive agencies, and the Postal Service. Persons with handicaps not in federally funded or federally conducted programs are not afforded protections under section 504. Under section 504, individuals with handicaps are not to be excluded from participation in or denied the benefits of federally assisted or federally conducted programs solely by reason of handicap. Section 504 was enacted for federally assisted programs in 1973. In 1974, a definition of persons protected by section 504 was added: eligible individuals are those who have a substantial physical or mental impairment, have a record of such an impairment, or are regarded as having such an impairment. In 1978, section 504 was amended to include federally conducted programs, and the definition of handicapped persons eligible for section 504 protections was amended. The new definition excluded, for purposes of employment, alcoholics or drug abusers whose use of such substances would: 1) prevent the individual from performing the job, or 2) constitute a threat to the property or safety of others. The Civil Rights Restoration Act, P.L. 100-259, amended section 504 to ensure a broad definition of the scope of these nondiscrimination provisions. These amendments were in response to a Supreme Court decision that had the effect of narrowing the interpretation of the scope of section 504. These amendments also specified that, for purposes of employment, persons with a contagious disease or infection are not protected under section 504 if such disease or infection would: 1) constitute a direct threat to the health or safety of others, or 2) prevent the individual from performing the duties of the job. Regulations set forth a definition for persons with handicaps covered under section 504 and establish standards for determining discriminatory practices. A major regulatory provision requires executive agencies and recipients of Federal assistance to make reasonable accommodation to the physical and mental limitations of qualified persons with handicaps unless such accommodation would impose an undue hardship on the operation of the program. TABLE OF CONTENTS STATUTORY PROVISIONS .... 1 SECTION 504 REQUIREMENTS .... 1 PERSONS WITH HANDICAPS PROTECTED BY SECTION 504 .... 3 LEGISLATIVE HISTORY .... 5 1973 ACT: P.L. 93-112 .... 5 1974 AMENDMENTS: P.L. 93-516 .... 6 1978 AMENDMENTS: P.L. 95-602 .... 7 CIVIL RIGHTS RESTORATION ACT OF 1987: P.L. 100-259 .... 10 Scope of "Program or Activity” .... 10 Section 504, Contagious Diseases, and HIV-Infected Persons .... 12 Section 504 Provision Regarding Contagious Diseases .... 12 Supreme Court Decision Regarding Tuberculosis .... 12 Section 504 Coverage of HIV-Infected Individuals .... 13 SECTION 504 REGULATIONS: HISTORY AND HIGHLIGHTS ..... 14 HISTORY OF SECTION 504 RULE-MAKING AFFECTING FEDERALLY ASSISTED PROGRAMS .... 14 HISTORY OF SECTION 504 RULE-MAKING AFFECTING FEDERALLY CONDUCTED PROGRAMS ....15 SECTION 504 REGULATORY REQUIREMENTS: OVERVIEW .... 15 Federal Agency Responsibility .... 15 Standards for Determining Eligible Persons .... 16 Guidelines for Determining Discriminatory Practices .... 17 General Provisions .... 17 Employment Provisions .... 18 Program Accessibility .... 19 SECTION 504 OF THE REHABILITATION ACT: STATUTORY PROVISIONS, LEGISLATIVE HISTORY, AND REGULATORY REQUIREMENTS STATUTORY PROVISIONS SECTION 504 REQUIREMENTS Section 504 of the Rehabilitation Act of 1973, as amended, provides a broad prohibition of discrimination against individuals with handicaps by recipients of Federal financial assistance and by executive agencies.^1 This is the major Federal law specifically protecting the civil rights of persons with handicaps. The Rehabilitation Act of 1973 prohibited discrimination by recipients of Federal financial assistance, and the 1978 amendments extended this prohibition to agencies of the executive branch of Government and to the United States Postal Service. Section 504, therefore, applies to "any program or activity" assisted by Federal funds or conducted by an executive agency.^2 Federally assisted programs are those supported by Federal grants or loans to States or other political subdivisions or to public or private agencies or other entities receiving Federal financial assistance. Federally conducted programs are those funded and administered directly by executive agencies or purchased through procurement contracts. The Civil Rights Restoration Act of 1987 was passed in response to a 1983 Supreme Court decision that had the effect of narrowing the applicability of section 504 (and other civil rights statutes) to apply only to the particular "program or activity" receiving Federal financial assistance, and not to the institution as a whole.^3 In response to the Court decision, the Restoration Act specified that section 504 (and three other civil rights statutes) apply to all the operations of the entity receiving Federal financial assistance, and not only to the particular activity receiving such assistance. ^1 P L. 98-112 as amended, 29 U.S.C. 794. ^2 Although section 504 does not extend to entities in the private sector that do not receive Federal financial assistance, major legislation was introduced in the 100th Congress that would establish a comprehensive nationwide prohibition against discrimination on the basis of handicap. For information on this initiative, see U.S. Library of Congress. Congressional Research Service. The Americans with Disabilities Act (ADA): Legal Analysis of Proposed Legislation Prohibiting Discrimination on the Basis of Handicap. CRS Report for Congress No. 88-621 A, by Nancy Lee Jones. Washington, September 19, 1988. ^3 Grove City College v. Bell, 465 U.S. 555 (1984). CRS-2 Section 504, entitled "Nondiscrimination Under Federal Grants and Programs," reads as follows: Section 504. (a) No otherwise qualified individual with handicaps in the United States, as defined in section 7(8), shall, solely by reason of his or her 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 or under any program or activity conducted by an Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees. (b) For the purposes of this section, the term "program or activity" means all of the operations of-- (1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or (B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government, (2)(A) a college, university, or other postsecondary institution, or a public system of higher education; or (B) a local educational agency (as defined in section 1471(12) of the Elementary and Secondary Education Act of 1965), system of vocational education, or other school system; CRS-3 (3)(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship— (i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or (ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3); any part of which is extended Federal financial assistance. (c) Small providers are not required by subsection (a) to make significant structural alterations to their existing facilities for the purpose of assuring program accessibility, if alternative means of providing the services are available. The terms used in this subsection shall be construed with reference to the regulations existing on the date of enactment of this subsection. Section 504 is patterned after the anti-discrimination language of title VI of Civil Rights Act which prohibits discrimination on the basis of race, color, or national origin and title IX of the Education Amendments of 1972 which prohibits discrimination on the basis of sex. PERSONS WITH HANDICAPS PROTECTED BY SECTION 504 For the purposes of section 504, the term "individual with handicaps" is defined by the Rehabilitation Act to mean any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.^4 For purposes of employment, however, the term does not include any person who is an alcoholic or drug abuser if such use of alcohol or drugs prevents the individual from performing the duties of the job in question. Persons using such substances are also not included in the definition if such person’s employment would constitute a direct threat to the property or safety of others because of current alcohol or drug abuse. ^4 From section 7(8) of the Rehabilitation Act, 29 U.S.C. 706(8). CRS-4 The Civil Rights Restoration Act amended the Rehabilitation Act definition of “individual with handicaps" by excluding from section 504 employment protections for certain persons with contagious diseases or infections. Persons excluded are those individuals who would constitute a direct threat to the health or safety of others or who are not able to perform the duties of the job due to such contagious disease or infection. P.L. 100-430, the Fair Housing Amendments Act of 1988, amended the Rehabilitation Act by excluding from the definition of “individual with handicaps" any person solely because that person is a transvestite. CRS-5 LEGISLATIVE HISTORY 1973 ACT: P.L. 93-112 There is very little legislative history surrounding the original enactment of section 504. Joseph Califano, Secretary of the Department of Health, Education and Welfare (HEW), was quoted as saying that "Congress enacted the legislation without legislative hearings and with virtually no floor debate in either House. There is thus little congressional guidance on the host of complex issues raised by section 504’s far reaching prohibition against discrimination.”^5 The House report and the House-Senate conference report did not discuss section 504 in any detail; they merely described the section. However, in the Senate report there was some language discussing the history of the legislation and its purposes. It was stated that hearings held as part of the Committee’s consideration of the Rehabilitation Act of 1972 highlighted certain areas including: ... the lack of action in areas related to rehabilitation which limit a handicapped individual’s ability to function in society, e.g., employment discrimination, lack of housing and transportation services and architectural and transportation barriers...^6 The congressional debate on the Rehabilitation Act of 1973 did not discuss section 504 in any detail. However, in a statement by Senator Dole, the new goals of the Act were discussed. Senator Dole stated: The primary goal of this bill is to assist handicapped individuals in achieving their full potential for participation in our society .... I believe this bill will work to the real benefit of America’s disabled. This bill contains the State planning requirements, the individualized written programs, strong emphasis on research and training, and antidiscrimination provisions.^7 ^5 Statement by Joseph A. Califano, Jr., Secretary of HEW, HEW News, Apr. 28, 1977 at page 7. Quoted in Levitan, A. Discrimination Against the Handicapped in Federally-Funded State Services: Subpart F of the Rehabilitation Act Regulations. 12 Clearinghouse Review 339 (Oct. 1978). ^6 U.S. Congress. Senate. Committee on Labor and Public Welfare. Rehabilitation Act of 1972. Senate Report No. 93-318, 93d Cong., Ist Sess. Washington, U.S. Govt. Print. Off., 1973. ^7 Dole, Robert. Goals of Act. Remarks in the Senate. Congressional Record, v. 119, July 18, 1973. p. 24589. CRS-6 1974 AMENDMENTS: P.L. 93-516 Prior to 1974, the definition of the term "handicapped individual" was based on impaired employability. The 1974 amendments to the Rehabilitation Act amended the definition of the term (for the purposes of section 504) to include: 1) a person with a physical or mental impairment which substantially limits one or more major life activities, 2) a person with a record of such an impairment, or 3) a person who is regarded as having such an impairment. The Senate report accompanying the 1974 amendments to the Rehabilitation Act discussed the amended definition and its relevance for section 504:^8 Section 504 was enacted to prevent discrimination against all handicapped and individuals regardless of their need for or ability to benefit from vocational rehabilitation services, in relation to Federal assistance in employment, education, health services, or any other federally aided programs. Examples of handicapped individuals who may suffer discrimination in the receipt of federally assisted services but who may have been unintentionally excluded from the protection of section 504 by the references to enhanced employability in section 7(b) are as follows: physically or mentally handicapped children who may be denied admission to federally supported school systems on the basis of their handicap, handicapped persons who may be denied admission to federally assisted nursing homes on the basis of their handicap; those persons whose handicap is so severe that employment is not feasible but who may be denied the benefits of a wide range of Federal programs; and those persons whose vocational rehabilitation is complete but who may nevertheless be discriminated against in certain federally assisted activities. ^8 Senate Report 93-1297. Rehabilitation Act Amendments of 1974. p. 38. CRS-7 The 1974 Senate report also explains the nature of discrimination against persons with handicaps in terms of the definition adopted:^9 The amended definition eliminates any reference to employment and takes cognizance of the fact that handicapped persons are discriminated against in a number of ways. First, they are discriminated against when they are, in fact, handicapped (this is similar to discrimination because of race and sex). Second, they are discriminated against because they are classified or labeled, correctly or incorrectly, as handicapped (this has no direct parallel in either race or sex discrimination, although racial and ethnic factors may contribute to misclassification as mentally retarded). Third, they are discriminated against if they are regarded as handicapped regardless of whether they are, in fact, handicapped (this has a parallel in race discrimination where a person is regarded as being of a minority group even though, in fact, he or she is not). The 1974 Senate report also restated the overall purpose of section 504:'^10 Section 504 was patterned after, and is almost identical to the antidiscrimination language of ... [title VI of the Civil Rights Act of 1964 (relating to race, color, and national origin) and title IX of the Education Amendments of 1972 (relating to sex)]. The section therefore constitutes the establishment of a broad government policy that programs receiving Federal financial assistance shall be operated without discrimination on the basis of handicap.... 1978 AMENDMENTS: P.L. 95-602 The 1978 amendments to the Rehabilitation Act expanded section 504 to apply to any program or activity conducted by any executive agency or by the United States Postal Service. The most detailed discussion of the amendment to section 504 is found in a statement by Rep. Jeffords discussing the conference report:^11 ^9 Ibid. ^10 Ibid., p. 39. ^11 Jeffords, James. Remarks in the House. Congressional Record, v. 124, Oct. 14, 1978. p. H13474. U.S. Congress. House. Committee on Education and Labor. Comprehensive Rehabilitation Services Amendments of 1978. House Report No. 95-1780, 95th Cong., 2d Sess. Washington, U.S. Govt. Print. Off., 1978. CRS-8 Finally, under section 504 . . . the conferees accepted a provision which I authored which I think brings fairness and equity to the entire picture in eliminating discrimination against the handicapped wherever it exists. In 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 me that the Federal Government should require States and localities to eliminate discrimination against the handicapped 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. The head of each executive agency was required to promulgate regulations to implement section 504 for federally conducted programs. Although no deadline was provided for completion of regulations, the conference report stated that copies of the proposed regulations were to be submitted to the appropriate authorizing committees of the Congress and were to take effect no earlier than the 30th day after such submission. The 1978 amendments to the Rehabilitation Act added several sections to title V of the Act that have the potential of strengthening and providing funding for implementation of section 504: - Persons who feel their rights have been violated by an agency required to comply with section 504 have available to them the rights and procedures of title VI of the Civil Rights Act of 1964. This provision is made under section 505(a)(2). CRS-9 - Persons who obtain a favorable judgment in a court proceeding related to a violation of title V of the Rehabilitation Act are allowed attorneys’ fees as part of the costs of litigation. This is provided for under section 505(b). - Technical assistance for the removal of architectural, transportation, or communication barriers may be provided to persons operating rehabilitation facilities. Such technical assistance may also be provided to public or nonprofit agencies, institutions, or organizations with the concurrence of the Architectural and Transportation Barriers Compliance Board (ATBCB). Section 506(a) makes this provision. - Financial assistance may be provided to public or nonprofit entities for the purpose of removing architectural, transportation, and communication barriers if a study demonstrating the need for such assistance has been submitted to the ATBCB and if such financial assistance has the concurrence of the ATBCB and the President. Section 506(c) makes this provision. - Section 507 established an Interagency Coordinating Council to oversee and coordinate the activities of the Federal Government related to implementation and enforcement of the title V provisions and the related regulations. The Council is composed of the following members: Secretary of Education Secretary of Health and Human Services Secretary of Labor Assistant Secretary of the Interior for Indian Affairs Attorney General Chairperson of the Office of Personnel Management Chairperson of the Equal Employment Opportunity Commission Chairperson of the Architectural and Transportation Barriers Compliance Board CRS-10 CIVIL RIGHTS RESTORATION ACT OF 1987: P.L. 100-259 Scope of "Program or Activity" The Civil Rights Restoration Act was enacted on March 22, 1988, when the Senate and House overrode the President Reagan’s veto of S. 557, thereby enacting P.L. 100-259. President Reagan had urged the adoption of a substitute measure that would have had less extensive coverage of civil rights provisions. In his veto message the President said:^12 Congress ... has sent me & bill that would vastly and unjustifiably expand the power of the Federal government over the decisions and affairs of private organizations, such as churches and synagogues, farms, businesses, and State and local governments. In the process, it would place at risk such cherished values as religious liberty . . . . Further, this bill would be beyond the scope of pre-Grove City law and expand the scope of coverage of State and local government agencies .... The cost and burdens of compliance with S. 557 would be substantial. P.L. 100-259 amended four civil rights statutes: title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, and section 504 of the Rehabilitation Act. Congressional response to the 1983 Grove City College decision began in the 98th Congress with legislation that would have deleted the phrase "program or activity" in the four civil rights laws and replaced it with the term "recipient." (S. 2468 and H.R. 5409). Although this proposed amendment was intended to repeal the effects of the Grove City decision by ensuring broad coverage of these statutes, opponents of this approach argued that definitions of the term "recipient" would only lead to ambiguity and possibly greater coverage than had been interpreted prior to the Grove City decision. This legislation was not enacted. Legislation in the 99th Congress proposed to define the phrase “program or activity" to mean all the operations of any entities, any of part of which received Federal financial assistance. (S. 431 and H.R. 700). Efforts to delineate the scope of the civil rights statutes included exempting "ultimate beneficiaries” (an individual receiving a service) and deleting coverage for certain provisions criticized as open-ended. However, these compromises failed to lead to enactment of amendments to repeal the effects of the Grove City decision in the 99th Congress. Efforts to define the issue, however, did lead to language that was introduced in the 100th Congress (S. 577 and H.R. 1214), which ultimately became law. ^12 Weekly Compilation of Presidential Documents, v. 24, no. 11, Mar. 21, 1988. p. 353-354. CRS-11 P.L. 100-259 was enacted to ensure that in all affected civil rights statutes, the phrase "program or activity" means "all the operations of" the following types of entities, any part of which receives Federal financial assistance: -- State and local governmental units; -- schools and school systems; -- post secondary education institutions; and -- private organizations principally engaged in providing education, health care, housing, social services, or parks and recreation, to which assistance is provided as a whole. P.L. 100-259 specified that the amendments are not to be construed to extend civil rights coverage to ultimate beneficiaries of Federal financial assistance who were excluded from coverage before the enactment of these amendments. That is, an individual who is the ultimate beneficiary of a service funded with Federal monies is not required to comply with the requirements of the civil rights statutes amended. ‘The Senate bill accompanying P.L. 100-259 states that farmers receiving a crop subsidy are an example of an ultimate beneficiary who would not be required to comply with section 504 requirements.^13 P.L. 100-259 also provides that the amendments are not to be construed to require any individual, hospital, or any other program or activity receiving Federal financial assistance to perform or pay for an abortion. The amendments made to section 504 specifically provide that small providers are not required to make significant structural alterations to existing facilities to assure program accessibility, if alternative means of providing the services are available. The Senate report states that pharmacies and grocery stores are examples of small providers that are not required to make significant structural alterations to existing facilities.^14 The terms used are to be construed as those in regulation on the date of enactment of the Restoration Act.^15 ^13Senate Report 100-64, p. 24. ^14Ibid., p. 23. ^15 For further background on the Civil Rights Restoration Act, see U.S. Library of Congress. Congressional Research Service. Civil Rights Legislation: Responses to Grove City College v. Bell. Issue Brief No. IB87123, by Robert F. Lyke, July 21, 1988; and US. Library of Congress. Congressional Research Service. The Civil Rights Restoration Act of 1987: Legal Analysis of P.L. 100-259. CRS Report No. 88-171A, by Karen Lewis, et al. Washington, July 12, 1988. CRS-12 Section 504, Contagious Diseases, and HIV-Infected Persons Section 504 Provision Regarding Contagious Diseases The Civil Rights Restoration Act amended the Rehabilitation Act by providing that, for the purposes of employment, section 504 coverage does not extend to persons with contagious diseases or infections if such diseases or infections: 1) constitute a threat to the safety of others, or 2) prevent the person from performing the duties of the job. This amendment placed into law the approach adopted in a 1987 Supreme Court decision.^16 Supreme Court Decision Regarding Tuberculosis In 1987 the Supreme Court decided in School Board of Nassau County v. Arline, 107 S.Ct. 1123 (1987), that a person with tuberculosis may be a handicapped individual under section 504, if certain conditions are met. Section 504 protection is available if the person is "otherwise qualified." Such qualification is to be determined according to the degree of risk of transmission of the disease and whether reasonable accommodation by the employer is possible, according to the Court decision. If it is not possible to ameliorate the threat to the safety of others using reasonable accommodation, then the person is not protected by section 504. Section 504 regulations already required that the person be able to perform the duties of the job, with reasonable accommodation.^17 ^16 It should be noted that there are numerous Supreme Court and lower court decisions interpreting section 504. However, discussion of these are beyond the scope of this report. For further information, see U.S. Library of Congress. Congressional Research Service. Supreme Court Decisions Interpreting Section 504 of the Rehabilitation Act of 1973. Special Report, by Nancy Lee Jones. Washington, July 22, 1985. ^17 For further information, see U.S. Library of Congress. Congressional Research Service. School Board of Nassau County v. Arline: A Person with the Contagious Disease of Tuberculosis May be Covered Under Section 504 of the Rehabilitation Act of 1973. CRS Report for Congress, by Nancy Lee Jones. Mar. 4, 1987; and Legal Implications of the Contagious Disease or Infections Amendment to the Civil Rights Restoration Act, S. 557. Special Report, by Nancy Lee Jones. Mar. 14, 1988. CRS-13 Section 504 Coverage of HIV-Infected Individuals In response to a request from the Counsel to the President, the Department of Justice issued a memorandum regarding the application of section 504 to individuals who are infected with the Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome (AIDS).^18 This request specifically included consideration of the question in light of the Arline Supreme Court decision. The Department of Justice determined that section 504 protects symptomatic and asymptomatic HIV-infected individuals in the employment context and in the nonemployment context, if the individual: 1) is able to perform the duties of the job, and 2) does not constitute a direct threat to the health or safety of others. The memorandum acknowledges that section 504 regulations require that employers make reasonable accommodation to the needs of otherwise qualified handicapped persons. If reasonable accommodation cannot remove the threat to the health or safety of other individuals, then an HIV-infected individual would not be protected by section 504, according to the memorandum. Because the statute and regulations are silent on the applicability of section 504 to HIV-infected individuals, this memorandum represents Administration policy regarding this question. ^18 U.S. Department of Justice. Office of Legal Counsel. Memorandum for Arthur B. Culvahouse, Jr., Counsel to the President. Re: Application of Section 504 of the Rehabilitation Act to HIV-Infected Individuals. Sept. 27, 1988. CRS-14 SECTION 504 REGULATIONS: HISTORY AND HIGHLIGHTS Executive agencies affected by section 504 are required to develop and publish regulations for both federally assisted programs and federally conducted programs. To facilitate the development of governmentwide regulations, a model regulation was developed for federally assisted programs and a slightly different prototype regulation was developed for federally conducted programs. HISTORY OF SECTION 504 RULE-MAKING AFFECTING FEDERALLY ASSISTED PROGRAMS The first regulation implementing section 504 was published on May 4, 1977, by HEW. This regulation was adapted for use by other executive agencies and published January 13, 1978, as the model regulation for section 504. The mode] regulation was for federally assisted programs only. (The provision including federally conducted programs was not added to the statute until November of 1978.) Executive Order 11914 gave HEW responsibility for review and approval of other agencies’ section 504 regulations. In May of 1980, HEW was divided into the Department of Education and the Department of Health and Human Services (HHS); HHS assumed responsibility for review and approval of section 504 regulations. On November 4, 1980, Executive Order 12250 placed responsibility for review and approval of all section 504 regulations with the Department of Justice. On August 11, 1981, the original model section 504 regulation was reissued by the Department of Justice (28 CFR Part 41). No substantive changes were made in the model regulation. The Reagan Administration undertook a review of section 504 regulations to determine whether the regulations placed undue financial or other burdens on recipients of Federal funds. Vice President Bush, who headed the Commission on Regulatory Reform, announced on March 21, 1983, that no changes were needed in the section 504 regulations promulgated for federally assisted programs. CRS-15 HISTORY OF SECTION 504 RULE-MAKING AFFECTING FEDERALLY CONDUCTED PROGRAMS The 1978 amendment to section 504 extended nondiscrimination provisions to programs conducted by the executive agencies and by the U.S. Postal Service and required that regulations be promulgated to carry out the expanded provisions. Executive Order 12250 requires the Department of Justice to develop standards and procedures for enforcing this provision. On April 15, 1983, the Department of Justice issued a memorandum to the heads of executive agencies which contained a prototype regulation for the implementation of section 504 as it applied to Federal conducted programs. SECTION 504 REGULATORY REQUIREMENTS: OVERVIEW Each executive agency that provides financial assistance to State or local agencies or private organizations, institutions or other entities was required to follow the provisions of the model regulation in issuing its own section 504 regulation. (Additional requirements for 504 regulations determined by the Department of Justice since the promulgation of the model regulation are included in this discussion.) Requirements for federally conducted programs are very similar.'^19 Federal Agency Responsibility All executive agencies conducting programs or providing Federal financial assistance are required to promulgate a_ regulation implementing section 504. These regulations are to include, where appropriate, specific provisions adapted to the particular programs and activities receiving funds or other financial assistance from the Federal agency. Federal agencies are required to establish a system for enforcement of their section 504 regulation to include enforcement and hearing procedures used by the agency for title VI of the Civil Rights Act.^20 Agencies receiving Federal funds are to sign assurances, conduct self-evaluations, and consult with interested persons, including persons with handicaps, regarding compliance with the provisions of section 504. ^19 For references to specific agency regulations, see U.S. Library of Congress. Congressional Research Service. Regulations Promulgated Pursuant to Section 504 of the Rehabilitation Act of 1973: A Brief History and Present Status. CRS Report for Congress No. 86-53 A, by Nancy Lee Jones and M. Ann Wolfe. Washington, Feb. 28, 1986. ^20 Section 505 of the Rehabilitation Act provides that the remedies, procedures and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by a recipient of Federal assistance or by a Federal agency under section 504. CRS-16 Recipients that are receiving assistance from two or more Federal agencies are to coordinate compliance activities, and one Federal agency is to be the primary agency for section 504 compliance purposes. Federal agencies are to consult with the Architectural and Transportation Barriers Compliance Board in developing and enforcing requirements for accessibility of buildings.^21 Federal agencies are to coordinate with the Department of Labor in enforcing requirements concerning employment discrimination by recipients that are also Federal contractors subject to section 503 of the Rehabilitation Act.^22 Standards for Determining Eligible Persons Persons eligible to receive protections under section 504 are those otherwise qualified individuals with handicaps who have a physical or mental impairment which substantially limits one or more of such person’s major life activities, have a record of such an impairment, or are regarded as having such an impairment. The model regulation defines "physical or mental impairment” to include any physiological disorder, cosmetic disfigurement or anatomical loss affecting one of the major body systems. The term also includes any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Examples of diseases and conditions are presented. ^21 Section 502 of the Rehabilitation Act provides authority for the Architectural and Transportation Barriers Compliance Board to enforce requirements regarding accessibility to federally funded buildings as required by the Architectural Barriers Act of 1968. The Board is composed of representatives of Federal agencies and members of the public. For further information, see U.S. Library of Congress. Congressional Research Service. Accessibility for the Handicapped in Federally Funded Buildings: The Law and Its Implementation. CRS Report for Congress No. 85-613 EPW, by Mary F. Smith. Mar. 11, 1985. ^22 Section 503 of the Rehabilitation Act requires affirmative action in hiring of persons with handicaps by Federal contractors with contracts in excess of $2,500. For further information, see U.S. Library of Congress. Congressional Research Service. Affirmative Action in the Employment of Persons with Handicaps Under Federal Contracts: Section 503 of the Rehabilitation Act. CRS Report for Congress No. 88-701 EPW, by Mary F. Smith. November 2, 1988. CRS-17 The model regulation defines "major life activities" to include functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. A person who has a “record” of having an impairment is defined as one who has a history of, or has been misclassified as having, a substantially limiting mental or physical impairment. A person who is "regarded" as having an impairment is defined as one who either does not have an impairment or does not have a substantially limiting impairment but is discriminated against as if he had a substantially limiting impairment. (Examples of these might be a refusal of employment to an able-bodied disfigured person, or a person with a slight physical impairment who has the ability to perform the job.) A "qualified individual with handicaps" with respect to employment, means a person with handicaps who, with reasonable accommodation, can perform the essential functions of the job. With respect to services, a qualified person with handicaps is one who meets the essential eligibility requirements of the service program. Guidelines for Determining Discriminatory Practices General Provisions The model regulation restates the portion of the statute that prohibits discrimination on the basis of handicap in any program or activity that receives Federal funds. The model regulation includes in the prohibition those programs or activities that receive “or benefit from" Federal financial assistance. The model regulation states that a recipient, in providing any aid, benefit or service, may not deny a qualified person with handicaps the opportunity to participate and must afford such a person an opportunity that is equal to that afforded others. In determining the location of a program, a recipient may not select a site which would have the effect of excluding handicapped persons. The exclusion of a specific class of handicapped persons from a program limited by Federal statute or executive order to a different class of handicapped person is not prohibited. For example, it is not discriminatory to exclude blind persons from a program specifically designed to serve deaf persons. The model regulation requires recipients to ensure that communication regarding the program is available to applicants, employees and beneficiaries with impaired vision and hearing. CRS-18 Employment Provisions The model regulation requires that no qualified person with handicaps shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity that receives or benefits from Federal financial assistance. Agencies are prohibited from limiting, segregating or classifying applicants or employees in any way that would adversely affect their opportunities or status because of handicap. The prohibition against discrimination in employment applies to recruitment, hiring, compensation, job assignment, benefits, training and other terms and benefits of employment. Recipients are required to make reasonable accommodation to the known physical and mental limitations of qualified handicapped applicants or employees unless it can be shown that the accommodation would impose an undue hardship on the operation of the program. Reasonable accommodation may include, but is not limited to, making facilities accessible to and usable by persons with handicaps, job restructuring or modified work schedules, acquisition or modification of equipment, modification of employment examinations, and the provision of readers and interpreters. Qualified person with handicaps means, with respect to employment, a person who: 1) with or without reasonable accommodation, can perform the essential functions of the job without endangering the health or safety of the individual or others, and 2) meets experience and/or education requirements. Tests or employment criteria that discriminate against persons with handicaps are not to be used, and recipients must ensure that any tests used are adapted for persons who have impaired sensory, manual or speaking skills. Preemployment inquiries and preemployment medical examinations to determine the fact or degree of handicap are prohibited except for inquiries to ascertain an applicant’s ability to perform job-related functions. Recipients may invite applicants to indicate handicap status if the employer is attempting to correct past discrimination against handicapped persons. CRS-19 Program Accessibility Regulations require that no qualified individual with handicaps be subject to discrimination or denied program benefits because a recipient’s facilities are inaccessible or unusable by handicapped persons. Recipients are to operate programs so that the program, when viewed in its entirety, is accessible to handicapped persons. This does not necessarily require a recipient to make each facility or every part of a facility accessible to handicapped persons. Recipients are not required to take any action that would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. New facilities are to be designed and constructed to be readily accessible to handicapped persons. Alterations to existing facilities, to the maximum extent feasible, are to be designed and constructed to be accessible to handicapped persons. Buildings newly. constructed or altered using Federal funds are to comply with the accessibility requirements and standards of the Architectural Barriers of 1968.