[Code of Federal Regulations]
[Title 38, Volume 2, Parts 18 To End]
[Revised as of July 1, 2000]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR18]
[Page 5-47]
VETERANS' RELIEF
CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS--CONTINUED
PART 18--NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF VETERANS AFFAIRS--EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
Subpart A--General
Sec.
18.1 Purpose.
18.2 Application of this part.
18.3 Discrimination prohibited.
18.4 Assurances required.
18.6 Compliance information.
18.7 Conduct of investigations.
18.8 Procedure for effecting compliance.
18.9 Hearings.
18.10 Decisions and notices.
18.11 Judicial review.
18.12 Effect on other regulations, forms and instructions.
18.13 Definitions.
Appendix A to Subpart A to Part 18--Statutory Provisions to Which This
Subpart Applies
Appendix B to Subpart A to Part 18--Illustrative Applications
Subparts B-C [Reserved]
Subpart D--Nondiscrimination in Federally-Assisted Programs of the
Department of Veterans Affairs--Effectuation of Title VI of the Civil
Rights Act of 1964
General Provisions
18.401 Purpose.
18.402 Application.
18.403 Definitions.
18.404 Discrimination prohibited.
18.405 Assurances required.
18.406 Remedial action, voluntary action and self-evaluation.
18.407 Designation of responsible employee and adoption of grievance
procedures.
18.408 Notice.
18.409 Administrative requirements for certain recipients.
18.410 Effect of State or local law or other requirements and effect of
employment opportunities.
Employment Practices
18.411 Discrimination prohibited.
18.412 Reasonable accommodation.
18.413 Employment criteria.
18.414 Preemployment inquiries.
Program Accessibility
18.421 Discrimination prohibited.
18.422 Existing facilities.
18.423 New construction.
Elementary, Secondary, and Adult Education
18.431 Application.
18.432 Location and notification.
18.433 Free appropriate public education.
18.434 Education setting.
18.435 Evaluation and placement.
18.436 Procedural safeguards.
18.437 Nonacademic services.
18.438 Adult education programs.
18.439 Private education programs.
Postsecondary Education
18.441 Application.
18.442 Admissions and recruitment.
18.443 General treatment of students.
18.444 Academic adjustments.
18.445 Housing.
18.446 Financial and employment assistance to students.
18.447 Nonacademic services.
Health and Social Services
18.451 Application.
18.452 Health and other social services.
18.453 Drug and alcohol addicts.
18.454 Education of institutionalized persons.
Procedures
18.461 Procedures.
Appendix A to Subpart D to Part 18--Statutory Provisions to Which This
Part Applies
Subpart E--Nondiscrimination on the Basis of Age
General
18.501 Purpose.
18.502 Application.
18.503 Definitions.
Standards for Determining Age Discrimination
18.511 Rules against age discrimination.
18.512 Definitions of ``normal operation'' and ``statutory objective.''
18.513 Exceptions to the rules against age discrimination; normal
operation or statutory objective of any program or activity.
18.514 Exceptions to the rules against age discrimination; reasonable
factors other than age.
18.515 Burden of proof.
18.516 Affirmative action by recipients.
Responsibilities of Department of Veterans Affairs Recipients
18.531 General responsibilities.
18.532 Notice of subrecipients.
18.533 Assurance of compliance and recipient assessment of age
distinctions.
[[Page 6]]
18.534 Information requirements.
Investigation, Conciliation, and Enforcement Procedures
18.541 Compliance reviews.
18.542 Complaints.
18.543 Mediation.
18.544 Investigation.
18.545 Prohibition against intimidation or retaliation.
18.546 Compliance procedure.
18.547 Hearings, decisions, post-termination proceedings.
18.548 Remedial action by recipient.
18.549 Alternate funds disbursal procedure.
18.550 Exhaustion of administrative remedies.
Appendix A to Subpart E to Part 18--Statutory Provisions to Which This
Subpart Applies
Appendix B to Subpart E to Part 18--List of Age Distinctions Contained
in Statutes and Regulations Governing Federal Financial
Assistance Programs of the Department of Veterans Affairs
Subpart A--General
Authority: Sec. 602, 78 Stat. 252 (42 U.S.C. 2000d-1) and the laws
referred to in Appendix A.
Sec. 18.1 Purpose.
The purpose of this part is to effectuate the provisions of Title VI
of the Civil Rights Act of 1964 (hereafter referred to as the Act) to
the end that no person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program or activity receiving Federal financial assistance
from the Department of Veterans Affairs.
[29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268, Sept.
24, 1980]
Sec. 18.2 Application of this part.
This part applies to any program for which Federal financial
assistance is authorized under a law administered by the Department of
Veterans Affairs, including the federally-assisted programs and
activities listed in appendix A to this subpart. It applies to money
paid, property transferred, or other Federal financial assistance
extended under any such program after the effective date of this part
pursuant to an application approved prior to such effective date. This
part does not apply to (a) any Federal financial assistance by way of
insurance or guaranty contracts, (b) money paid, property transferred,
or other assistance extended under any such program before the effective
date of this part, (c) any assistance to any individual who is the
ultimate beneficiary under any such program, or (d) any employment
practice, under any such program, of any employer, employment agency, or
labor organization, except to the extent described in Sec. 18.3. The
fact that a program or activity is not listed in appendix A to this
subpart shall not mean, if Title VI of the Act is otherwise applicable,
that such program is not covered. Other programs under statutes now in
force or hereinafter enacted may be added to appendix A to this subpart
by notice published in the Federal Register.
[38 FR 17965, July 5, 1973. Designated subpart A at 45 FR 63268, Sept.
24, 1980]
Sec. 18.3 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program to which this part applies.
(b) Specific discriminatory actions prohibited. (1) A recipient
under any program to which this part applies may not, directly or
through contractual or other arrangements, on grounds of race, color, or
national origin:
(i) Deny an individual any service, financial aid, or other benefit
provided under the program;
(ii) Provide any service, financial aid, or other benefit to an
individual which is different, or is provided in a different manner,
from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment in
any matter related to receipt of any service, financial aid, or other
benefit under the program;
(iv) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any service,
financial aid, or other benefit under the program;
[[Page 7]]
(v) Treat an individual differently from others in determining
whether is satisfied any admission, enrollment, quota, eligibility,
membership or other requirement or condition which individuals must meet
in order to be provided any service, financial aid, or other benefit
provided under the program.
(vi) Deny a person an opportunity to participate in the program
through the provision of services or otherwise or afford an opportunity
to do so which is different from that afforded others under the program.
(vii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial
aid, or other benefits, or facilities which will be provided under any
such program, or the class of individuals to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program, or the class of individuals to be
afforded an opportunity to participate in any such program, may not,
directly or through contractual or other arrangements, utilize criteria
or methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, or national
origin, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program with respect to
individuals of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient
or applicant may not make selections with the purpose or effect of
excluding individuals from, denying them the benefits of, or subjecting
them to discrimination under any program to which this part applies on
the grounds of race, color or national origin; or with the purpose or
effect of defeating or substantially impairing the accomplishment of the
objectives of the Act or this part.
(4) As used in this section the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
shall be deemed to include any service, financial aid, or other benefit
provided in or through a facility provided with the aid of Federal
financial assistance.
(5) The enumeration of specific forms of prohibited discrimination
in this paragraph does not limit the generality of the prohibition in
paragraph (a) of this section.
(6)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient
in administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color or national origin.
(c) Medical emergencies. Notwithstanding the foregoing provisions of
this section, a recipient of Federal financial assistance shall not be
deemed to have failed to comply with paragraph (a) of this section if
immediate provision of a service or other benefit to an individual is
necessary to prevent his or her death or serious impairment of his or
her health, and such service or other benefit cannot be provided except
by or through a medical institution which refuses or fails to comply
with paragraph (a) of this section.
(d) Employment practices. (1) Whenever a primary objective of the
Federal financial assistance to a program to which part 18 applies, is
to provide employment, a recipient of such assistance may not (directly
or through contractual or other arrangements) subject any individual to
discrimination on the ground of race, color, or national origin in its
employment practices under such program (including recruitment or
recruitment advertising, employment, layoff, or termination, upgrading,
demotion, or transfer, rates of pay or other forms of compensation, and
use of facilities). The requirements applicable to construction
employment under any such program shall be those specified in or
pursuant to part III of Executive Order 11246 (3 CFR Chapter IV) or any
Executive order which supersedes it.
[[Page 8]]
(2) In regard to Federal financial assistance which does not have
providing employment as a primary objective, the provisions of paragraph
(d)(1) of this section apply to the employment practices of the
recipient if discrimination on the ground of race, color, or national
origin in such employment practices tends, on the grounds of race,
color, or national origin, to exclude persons from participation in, to
deny them the benefits of or to subject them to discrimination under the
program receiving Federal financial assistance. In any such case, the
provisions of paragraph (d)(1) of this section shall apply to the extent
necessary to assure equality of opportunity to and nondiscriminatory
treatment of beneficiaries.
[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17965, July 5, 1973; 42
FR 60144, Nov. 25, 1977. Designated subpart A at 45 FR 63268, Sept. 24,
1980, and further amended at 51 FR 10384, Mar. 26, 1986]
Sec. 18.4 Assurances required.
(a) General. (1) Every application for Federal financial assistance
to carry out a program to which this part applies, except a program to
which paragraph (b) of this section applies, and every application for
Federal financial assistance to provide a facility shall, as a condition
to its approval and the extension of any Federal financial assistance
pursuant to the application, contain or be accompanied by an assurance
that the program will be conducted or the facility operated in
compliance with all requirements imposed by or pursuant to this part.
Every program of Federal financial assistance shall require the
submission of such an assurance. In the case of an application for
Federal financial assistance to provide real property or structures
thereon, the assurance shall obligate the recipient, or, in the case of
a subsequent transfer, the transferee, for the period during which the
real property or structures are used for a purpose for which the Federal
financial assistance is extended or for another purpose involving the
provision of similar services or benefits. In the case of personal
property the assurance shall obligate the recipient for the period
during which the recipient retains ownership or possession of the
property. In all other cases the assurance shall obligate the recipient
for the period during which Federal financial assistance is extended
pursuant to the application. The responsible agency official shall
specify the form of the foregoing assurances for each program, and the
extent to which like assurances will be required of subgrantees,
contractors and subcontractors, transferees, successors in interest, and
other participants in the program. Any such assurance shall include
provisions which give the United States a right to seek its judicial
enforcement.
(2) Transfers of surplus property are subject to regulations issued
by the Administrator of General Services (41 CFR subpart 101-6.2).
(b) Continuing State programs. Every application by a State or a
State agency to carry out a program involving continuing Federal
financial assistance to which this part applies (including the programs
listed in appendix A to this subpart) shall as a condition to its
approval and the extension of any Federal financial assistance pursuant
to the application (1) contain or be accompanied by a statement that the
program is (or, in the case of a new program, will be) conducted in
compliance with all requirements imposed by or pursuant to this part,
and (2) provide or be accompanied by provision for such methods of
administration for the program as are found by the responsible agency
official to give reasonable assurance that the applicant and all
recipients of Federal financial assistance under such program will
comply with all requirements imposed by or pursuant to this part. In any
case in which the recipient is claiming financial assistance under a
continuing program pursuant to arrangements entered into prior to the
effective date of this part, the assurances provided by this paragraph
shall be included in the first application or claim for assistance on or
after the effective date of this part.
(c) Elementary and secondary schools. The requirements of paragraph
(a) or (b) of this section with respect to any elementary or secondary
school or school system shall be deemed to be satisfied if such school
or school system (1) is subject to a final order of a
[[Page 9]]
court of the United States for the desegregation of such school or
school system, and provides an assurance that it will comply with such
order, including any future modification of such order, or (2) submits a
plan for the desegregation of such school or school system which the
responsible agency official determines is adequate to accomplish the
purposes of the Act and this part, at the earliest practicable time, and
provides reasonable assurance that it will carry out such plan; in any
case of continuing Federal financial assistance the responsible agency
official may reserve the right to redetermine, after such period as may
be specified by the official, the adequacy of the plan to accomplish the
purposes of the Act and this part. In any case in which a final order of
a court of the United States for the desegregation of such school or
school system is entered after submission of such a plan, such plan
shall be revised to conform to such final order, including any future
modification of such order.
(d) Extent of application to institution or facility. In the case
where any assurances are required from an academic, a medical care, or
any other institution or facility, insofar as the assurances relate to
the institution's practices with respect to the admission, care, or
other treatment of persons by the institution or with respect to the
opportunity of persons to participate in the receiving or providing of
services, treatment, or benefits, such assurances shall be applicable to
the entire institution or facility. That requirement may be waived by
the responsible agency official if the party furnishing the assurances
establishes to the satisfaction of the responsible agency official that
the practices in designated parts or programs of the institution or
facility will in no way affect its practices in the program of the
institution or facility for which Federal financial assistance is or is
sought to be provided, or affect the beneficiaries of or participants in
such program. If in any such case the assistance is or is sought for the
construction of a facility or part of a facility, the assurances shall
in any event extend to the entire facility and to facilities operated in
connection therewith.
[38 FR 17965, July 5, 1973. Designated subpart A at 45 FR 63268, Sept.
24, 1980, and amended at 51 FR 10384, Mar. 26, 1986]
Sec. 18.6 Compliance information.
(a) Cooperation and assistance. Each responsible agency official
shall to the fullest extent practicable seek the cooperation of
recipients in obtaining compliance with this part and shall provide
assistance and guidance to recipients to help them comply voluntarily
with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to the responsible agency official or designee, timely, complete
and accurate compliance reports at such times, and in such form and
containing such information, as the responsible agency official or
designee may determine to be necessary to enable the official to
ascertain whether the recipient has complied or is complying with this
part. In the case of any program under which a primary recipient extends
Federal financial assistance to any other recipient, such other
recipient shall also submit such compliance reports to the primary
recipient as may be necessary to enable the primary recipient to carry
out its obligations under this part. In general, recipients should have
available for the agency racial and ethnic data showing the extent to
which members of minority groups are beneficiaries of federally assisted
programs.
(c) Access to sources of information. Each recipient shall permit
access by the responsible agency official or designee during normal
business hours to such of its books, records, accounts, and other
sources of information, and its facilities as may be pertinent to
ascertain compliance with this part. Where any information required of a
recipient is in the exclusive possession of any other agency,
institution or person and this agency, institution or person shall fail
or refuse to furnish this information, the recipient shall so certify in
its report and shall set forth what efforts it has made to obtain the
information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries,
[[Page 10]]
and other interested persons such information regarding the provisions
of this part and its applicability to the program under which the
recipient receives Federal financial assistance, and make such
information available to them in such manner, as the responsible agency
official finds necessary to apprise such persons of the protections
against discrimination assured them by the Act and this part.
[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR
10384, Mar. 26, 1986]
Sec. 18.7 Conduct of investigations.
(a) Periodic compliance reviews. The responsible agency official or
designee shall from time to time review the practices of recipients to
determine whether they are complying with this part.
(b) Complaints. Any person or any specific class of individuals who
believe they have been subjected to discrimination prohibited by this
part may themselves, or by a representative, file with the responsible
agency official or designee a written complaint. A complaint must be
filed not later than 180 days from the date of the alleged
discrimination unless the time for filing is extended by the responsible
agency offical or designee.
(c) Investigations. The responsible agency official or designee will
initiate a prompt investigation whenever a compliance review, report,
complaint, or any other information indicates a possible failure to
comply with this part. The investigation should include, where
appropriate, a review of the pertinent practices and policies of the
recipient, the circumstances under which the possible noncompliance with
this part occurred, and other factors relevant to a determination as to
whether the recipient has failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, the responsible agency official or designee will so inform the
recipient and the matter will be resolved by informal means whenever
possible. If it has been determined that the matter cannot be resolved
by informal means, action will be taken as provided for in Sec. 18.8.
(2) If an investigation does not warrant action pursuant to
paragraph (d)(1) of this section the responsible agency official or
designee will so inform the recipient and the complainant, if any, in
writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of the Act or this part, or because the
individual has made a complaint, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this part.
The identity of complainants shall be kept confidential except to the
extent necessary to carry out the purposes of this part, including the
conduct of any investigation, hearing, or judicial proceeding arising
thereunder.
[29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268, Sept.
24, 1980 and amended at 51 FR 10384, Mar. 26, 1986]
Sec. 18.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by any other
means authorized by law. Such other means may include, but are not
limited to, (1) a reference to the Department of Justice with a
recommendation that appropriate proceedings be brought to enforce any
rights of the United States under any law of the United States
(including other titles of the Act), or any assurance or other
contractual undertaking, and (2) any applicable proceeding under State
or local law.
(b) Noncompliance with Sec. 18.4. If an applicant fails or refuses
to furnish an assurance required under Sec. 18.4 or otherwise fails or
refuses to comply with a requirement imposed by or pursuant to that
section Federal financial assistance may be refused in accordance with
[[Page 11]]
the procedures of paragraph (c) of this section. The Department of
Veterans Affairs shall not be required to provide assistance in such a
case during the pendency of the administrative proceedings under such
paragraph except that the Department of Veterans Affairs shall continue
assistance during the pendency of such proceedings where such assistance
is due and payable pursuant to an application therefor approved prior to
the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating or refusing to
grant or continue Federal financial assistance shall become effective
until (1) the responsible agency official has advised the applicant or
recipient of failure to comply and has determined that compliance cannot
be secured by voluntary means, (2) there has been an express finding on
the record, after opportunity for hearing, of a failure by the applicant
or recipient to comply with a requirement imposed by or pursuant to this
part, (3) the action has been approved by the Secretary pursuant to
Sec. 18.10(e), and (4) the expiration of 30 days after the Secretary has
filed with the committee of the House and the committee of the Senate
having legislative jurisdiction over the program involved, a full
written report of the circumstances and the grounds for such action. Any
action to suspend or terminate or to refuse to grant or to continue
Federal financial assistance shall be limited to the particular
political entity, or part thereof, or other applicant or recipient as to
whom such a finding has been made and shall be limited in its effect to
the particular program, or part thereof, in which such noncompliance has
been so found.
(d) Other means authorized by law. No action to effect compliance
with Title VI of the Act by any other means authorized by law shall be
taken by the Department of Veterans Affairs until (1) the responsible
agency official has determined that compliance cannot be secured by
voluntary means, (2) the recipient or other person has been notified of
its failure to comply and of the action to be taken to effect
compliance, and (3) the expiration of at least 10 days from the mailing
of such notice to the recipient or other person. During this period of
at least 10 days, additional efforts shall be made to persuade the
recipient or other person to comply with this part and to take such
corrective action as may be appropriate.
[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51
FR 10384, Mar. 26, 1986]
Sec. 18.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 18.8(c), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
applicant or recipient. This notice shall advise the applicant or
recipient of the action proposed to be taken, the specific provision
under which the proposed action against it is to be taken, and the
matters of fact or law asserted as the basis for this action, and either
(1) fix a date not less than 20 days after the date of such notice
within which the applicant or recipient may request of the responsible
agency official that the matter be scheduled for hearing or (2) advise
the applicant or recipient that the matter in question has been set down
for hearing at a stated place and time. The time and place so fixed
shall be reasonable and shall be subject to change for cause. The
complainant, if any, shall be advised of the time and place of the
hearing. An applicant or recipient may waive a hearing and submit
written information and argument for the record. The failure of an
applicant or recipient to request a hearing under this paragraph or to
appear at a hearing for which a date has been set shall be deemed to be
a waiver of the right to a hearing under section 602 of the Act and
Sec. 18.8(c) of this part and consent to the making of a decision on the
basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the Department of Veterans Affairs in Washington, D.C., at a time
fixed by the responsible agency official unless the official determines
that the convenience of the applicant or recipient
[[Page 12]]
or of the Department of Veterans Affairs requires that another place be
selected. Hearings shall be held before the responsible agency official
or, at the official's discretion, before an administrative law judge
appointed in accordance with section 3105 of Title 5, U.S.C., or
detailed under section 3344 of Title 5, U.S.C.
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and the Department of Veterans Affairs shall have
the right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing decision and
any administrative review thereof shall be conducted in conformity with
the procedures contained in 5 U.S.C. 554-557 (sections 5-8 of the
Administrative Procedure Act) and in accordance with such rules of
procedure as are proper (and not inconsistent with this section)
relating to the conduct of the hearing, giving of notices subsequent to
those provided for in paragraph (a) of this section, taking of
testimony, exhibits, arguments and briefs, requests for findings, and
other related matters. Both the Department of Veterans Affairs and the
applicant or recipient shall be entitled to introduce all relevant
evidence on the issues as stated in the notice for hearing or as
determined by the officer conducting the hearing at the outset of or
during the hearing.
(2) Technical rules of evidence shall not apply to hearings
conducted pursuant to this part, but rules or principles designed to
assure production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer may
exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more programs to which this part applies, or
noncompliance with this part and the regulations of one or more other
Federal departments or agencies issued under Title VI of the Act, the
Secretary may, by agreement with such other departments or agencies
where applicable, provide for the conduct of consolidated or joint
hearings, and for the application to such hearings of rules of
procedures not inconsistent with this part. Final decisions in such
cases, insofar as this part is concerned, shall be made in accordance
with Sec. 18.10.
[29 FR 19301, Dec. 28, 1964, as amended at 38 FR 17966, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR
10384, Mar. 26, 1986]
Sec. 18.10 Decisions and notices.
(a) Procedure on decisions by an administrative law judge. If the
hearing is held by an administrative law judge such administrative law
judge shall either make an initial decision, if so authorized, or
certify the entire record including recommended findings and proposed
decision to the responsible agency official for a final decision, and a
copy of such initial decision or certification shall be mailed to the
applicant or recipient. Where the initial decision is made by the
administrative law judge the applicant or recipient may within 30 days
of the mailing of such notice of initial decision file with the
responsible agency official exceptions to the initial decision with
reasons therefor. In the absence of exceptions, the responsible agency
official may within 45 days after the initial decision serve on the
applicant or recipient a notice that the decision will be reviewed. Upon
the filing of such exceptions or of such notice of review the
responsible agency official shall review the initial decision and issue
a decision thereon including the reasons therefor. In the absence of
either exceptions or a notice of review the initial decision shall
constitute the final decision of the responsible agency official.
(b) Decisions on record or review by the responsible agency
official. Whenever a
[[Page 13]]
record is certified to the responsible agency official for decision or
the official reviews the decision of an administrative law judge
pursuant to paragraph (a) of this section, or whenever the responsible
agency official conducts the hearing, the applicant or recipient shall
be given reasonable opportunity to file with the official briefs or
other written statements of its contentions, and a written copy of the
final decision of the responsible agency official shall be sent to the
applicant or recipient and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 18.9(a) a decision shall be made by
the responsible agency official on the record and a written copy of such
decision shall be sent to the applicant or recipient, and to the
complainant, if any.
(d) Rulings required. Each decision of an administrative law judge
or responsible agency official shall set forth a ruling on each finding,
conclusion, or exception presented, and shall identify the requirements
imposed by or pursuant to this part with which it is found that the
applicant or recipient has failed to comply.
(e) Approval by Secretary. Any final decision by an administrative
law judge which provides for the suspension or termination of, or the
refusal to grant or continue Federal financial assistance, or the
imposition of any other sanction available under this part of the Act,
shall promptly be transmitted to the Secretary personally, who may
approve such decision, may vacate it, or remit or mitigate any sanction
imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue Federal financial
assistance, in whole or in part, under the program involved, and may
contain such terms, conditions, and other provisions as are consistent
with and will effectuate the purposes of the Act and this part,
including provisions designed to assure that no Federal financial
assistance will thereafter be extended under such program to the
applicant or recipient determined by such decision to be in default in
its performance of an assurance given by it pursuant to this part, or to
have otherwise failed to comply with this part, unless and until it
corrects its noncompliance and satisfies the responsible agency official
that it will fully comply with this part.
(g) Post termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this section and provides reasonable assurance that it will fully comply
with this part.
(2) Any applicant or recipient adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the responsible agency official to restore fully its eligibility
to receive Federal financial assistance. Any such request shall be
supported by information showing that the applicant or recipient has met
the requirements of paragraph (g)(1) of this section. If the responsible
agency official determines that those requirements have been satisfied,
the official shall restore such eligibility.
(3) If the responsible agency official denies any such request, the
applicant or recipient may submit a request for a hearing in writing,
specifying why it believes such official to have been in error. It shall
thereupon be given an expeditious hearing, with a decision on the
record, in accordance with rules of procedure issued by the responsible
agency official. The applicant or recipient will be restored to such
eligibility if it proves at such a hearing that it satisfied the
requirements of paragraph (g)(1) of this section. While proceedings
under this paragraph are pending, the sanctions imposed by the order
issued under paragraph (f) of this section shall remain in effect.
[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51
FR 10384, Mar. 26, 1986]
Sec. 18.11 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
[29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268, Sept.
24, 1980]
[[Page 14]]
Sec. 18.12 Effect on other regulations, forms and instructions.
(a) Effect on other regulations. All regulations, orders, or like
directions issued before the effective date of this part by any officer
of the Department of Veterans Affairs which impose requirements designed
to prohibit any discrimination against individuals on the grounds of
race, color or national origin under any program to which this part
applies, and which authorize the suspension or termination of or refusal
to grant or to continue Federal financial assistance to any applicant
for or recipient of such assistance under such program for failure to
comply with such requirements, are hereby superseded to the extent that
such discrimination is prohibited by this part, except that nothing in
this part shall be deemed to relieve any person of any obligation
assumed or imposed under any such superseded regulation, order,
instruction, or like direction prior to the effective date of this part.
Nothing in this part, however, shall be deemed to supersede any of the
following (including future amendments thereof):
(1) Executive Orders 10925 (3 CFR, 1959-1963 Comp., p. 448), 11114
(3 CFR, 1959-1963, p. 774), and 11246 (3 CFR, 1965 Supp., p. 167) and
regulations issued thereunder, or
(2) Executive Order 11063 (3 CFR, 1959-1963 Comp., p. 652) and
regulations issued thereunder, or any other orders, regulations or
instructions, insofar as such orders, regulations, or instructions
prohibit discrimination on the grounds of race, color or national origin
in any program or situation to which this part is inapplicable, or
prohibit discrimination on any other ground.
(b) Forms and instructions. Each responsible agency officials shall
issue and promptly make available to interested persons forms and
detailed instructions and procedures for effectuating this part as
applied to programs to which this part applies and for which he is
responsible.
(c) Supervision and coordination. The Secretary may from time to
time assign to officials of the Department of Veterans Affairs or to
officials of other departments or agencies of the Government with the
consent of such departments or agencies, responsibilities in connection
with the effectuation of the purposes of Title VI of the Act and this
part (other than responsibility for final decision as provided in
Sec. 18.10) including the achievement of effective coordination and
maximum uniformity within the Department of Veterans Affairs and within
the executive branch of the Government in the application of Title VI
and this part to similar programs and in similar situations. Any action
taken, determination made, or requirement imposed by an official of
another department or agency acting pursuant to an assignment of
responsibility under this paragraph shall have the same effect as though
such action has been taken by the responsible official of this Agency.
[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17967, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980]
Sec. 18.13 Definitions.
As used in this part:
(a) The term agency means the Department of Veterans Affairs, and
includes each of its operating agencies and other organization units.
(b) The term Secretary means the Secretary of Veterans Affairs.
(c) The term responsible agency official with respect to any program
receiving Federal financial assistance means the Secretary or other
official of the Department of Veterans Affairs or an official of another
department or agency to the extent the Secretary has delegated authority
to such official.
(d) The term United States means the States of the United States,
the District of Columbia, Puerto Rico, the Virgin Islands, American
Samoa, Guam, Wake Island, the Canal Zone, and the territories and
possessions of the United States, and the term State means any one of
the foregoing.
(e) The term Federal financial assistance includes (1) grants of
Federal funds, (2) the grant or donation of Federal property and
interests in property, (3) the detail of Federal personnel, (4) the sale
and lease of, and the permission to use (on other than a casual or
transient basis), Federal property or any interest in such property
without
[[Page 15]]
consideration or at a nominal consideration, or at a consideration which
is reduced for the purpose of assisting the recipient, or in recognition
of the public interest to be served by such sale or lease to the
recipient, and (5) any Federal agreement, arrangement, or other contract
which has as one of its purposes the provision of assistance.
(f) The term program, except those specifically excluded in
Sec. 18.2, includes any program, project, or activity for the provision
of services, financial aid, or other benefits to individuals conducted
under a law administered by the Department of Veterans Affairs,
including but not limited to the programs and activities listed in
appendix A to this subpart. The services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
shall be deemed to include any services, financial aid or other benefits
provided with the aid of Federal financial assistance or with the aid of
any non-Federal funds, property, or other resources required to be
expended or made available for the program to meet matching requirements
or other conditions which must be met in order to receive the Federal
financial assistance, and to include any services, financial aid, or
other benefits provided in or through a facility provided with the aid
of Federal financial assistance or such non-Federal resources.
(g) The term facility includes all or any portion of structures,
equipment, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration or acquisition of facilities.
(h) The term recipient means any State, political subdivision of any
State, or instrumentality of any State or political subdivision, any
public or private agency, institution, or organization, or other entity,
or any individual, in the United States, to whom Federal financial
assistance is extended, directly or through another recipient, for any
program, including any successor, assignee, or transferee thereof, but
such term does not include any ultimate beneficiary under any such
program.
(i) The term applicant means a person who submits an application,
request, or plan required to be approved by the Secretary, or by a
recipient, as a condition to eligibility for Federal financial
assistance, and application means such an application, request, or plan.
[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17967, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51
FR 10385, Mar. 26, 1986]
Appendix A to Subpart A to Part 18--Statutory Provisions to Which This
Subpart Applies
1. Payments to State homes (38 U.S.C. 1741-1743).
2. State home facilities for furnishing domiciliary, nursing home,
and hospital care (38 U.S.C. 8131-8137).
3. Space and office facilities for representatives of recognized
national organizations (38 U.S.C. 5902(a)(2)).
4. All-volunteer force educational assistance, vocational
rehabilitation, post-Vietnam era veterans' educational assistance,
survivors' and dependents' educational assistance, and administration of
educational benefits (38 U.S.C. Chapters 30, 31, 32, 34, 35 and 36,
respectively).
5. Sharing of medical facilities, equipment, and information (38
U.S.C. 8151-8157).
6. Approval of educational institutions (38 U.S.C. 104).
7. Space and office facilities for representatives of State
employment services (38 U.S.C. 7725(1)).
8. Medical care for survivors and dependents of certain veterans (38
U.S.C. 1713).
9. Transfers for nursing home care; adult day health care (38 U.S.C.
1720).
10. Treatment and rehabilitation for alcohol or drug dependence or
abuse disabilities (38 U.S.C. 1720A).
11. Aid to States for establishment, expansion, and improvement of
veterans cemeteries (38 U.S.C. 2408).
12. Assistance in establishing new medical schools; grants to
affiliated medical schools; assistance to health manpower training
institutions (38 U.S.C. Chapter 82).
13. Department of Veterans Affairs health professional scholarship
program (38 U.S.C. 7601-7655).
14. Emergency veterans job training (Pub. L. 98-77, 97 Stat. 443-
452).
[51 FR 10385, Mar. 26, 1986]
Appendix B to Subpart A to Part 18--Illustrative Applications
The following examples, without being exhaustive, will illustrate
the application of the nondiscrimination provisions to certain
[[Page 16]]
grants of the Department of Veterans Affairs. (In all cases the
discrimination prohibited is discrimination on the grounds of race,
color, or national origin prohibited by title VI of the Act and this
part, as a condition of the receipt of Federal financial assistance.)
(a) In grants which support the provision of health or welfare
services for veterans in State homes, discrimination in the selection or
eligibility of individuals to receive the services, and segregation or
other discriminatory practices in the manner of providing them, are
prohibited. This prohibition extends to all facilities and services
provided by the State as grantee under the program or by a political
subdivision of the State. It extends also to services purchased or
otherwise obtained by the grantee (or political subdivision) from
hospitals, nursing homes, schools, and similar institutions for
beneficiaries of the program, and to the facilities in which such
services are provided, subject, however, to the provisions of
Sec. 18.3(c).
(b) In grants to assist in the construction of facilities for the
provision of health or welfare services assurances will be required that
services will be provided without discrimination, to the same extent
that discrimination would be prohibited as a condition of Federal
operating grants for the support of such services. Thus, as a condition
of grants for the construction of a State home for furnishing nursing
home care, assurances will be required that there will be no
discrimination in the admission or treatment of patients. In the case of
such grants the assurance will apply to patients, to interns, residents,
student nurses, and other trainees, and to the privilege of physicians,
dentists, and other professionally qualified persons to practice in the
nursing home, and will apply to the entire facility for which, or for a
part of which, the grant is made, and to facilities operated in
connection therewith.
(c) Upon transfers of real or personal surplus property for health
or educational uses, discrimination is prohibited to the same extent as
in the case of grants for the construction of facilities or the
provision of equipment for like purposes.
(d) A recipient may not take action that is calculated to bring
about indirectly what this part forbids it to accomplish directly. Thus
a State, in selecting or approving projects or sites for the
construction of a nursing home which will receive Federal financial
assistance, may not base its selections or approvals on criteria which
have the effect of defeating or of substantially impairing
accomplishment of the objectives of the Federal assistance program with
respect to individuals of a particular race, color, or national origin.
(38 U.S.C. 1741, 1744, 8131-8137, 8155, 5902(a)(2), Chapters 31, 34, 35
and 36)
[38 FR 17968, July 5, 1973. Designated subpart A at 45 FR 63268, Sept.
24, 1980]
Subparts B-C [Reserved]
Subpart D--Nondiscrimination in Federally-Assisted Programs of the
Department of Veterans Affairs--Effectuation of Title VI of the Civil
Rights Act of 1964
Authority: 29 U.S.C. 794; 42 U.S.C. 2000d-1 to 2000d-4, 6101-6107.
Source: 45 FR 63268, Sept. 24, 1980, unless otherwise noted.
General Provisions
Sec. 18.401 Purpose.
The purpose of this part is to effectuate section 504 of the
Rehabilitation Act of 1973, which is designed to eliminate
discrimination on the basis of handicap in any program or activity
receiving Federal financial assistance.
Sec. 18.402 Application.
This part applies to each recipient of Federal financial assistance
from the Department of Veterans Affairs and to each program or activity
that receives or benefits from such assistance.
Sec. 18.403 Definitions.
As used in this part, the term:
(a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516,
and Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978, Pub. L. 95-602, 29 U.S.C. 794.
(b) Section 504 means section 504 of the Act.
(c) Education of the Handicapped Act means that statute as amended
by the Education for all Handicapped Children Act of 1975, Pub. L. 94-
142, 20 U.S.C. 1401 et seq.
(d) Agency means the Department of Veterans Affairs.
(e) Secretary means the Secretary of Veterans Affairs.
[[Page 17]]
(f) Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or
through another recipient, including any successor, assignee, or
transferee of a recipient but excluding the ultimate beneficiary of the
assistance.
(g) Applicant for assistance means one who submits an application,
request, or plan required to be approved by an Agency official or by a
recipient as a condition to eligibility for Federal financial
assistance.
(h) Federal financial assistance means any grant, loan, contract
(other than a procurement contract or a contract of insurance or
guaranty), or any other arrangement by which the Agency provides or
otherwise makes available assistance in the form of:
(1) Funds, including funds extended to any entity for payment to or
on behalf of students admitted to that entity, extended directly to
those students for payment to that entity, or extended directly to those
students contingent upon their participation in a program of education
or training of that entity;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of
property, including;
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property
if the Federal share of its fair market value is not returned to the
Federal Government.
(i) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property.
(j) Handicapped person. (1) Handicapped person means any person who:
(i) Has a physical or mental impairment which substantially limits
one or more major life activities;
(ii) Has a record of such an impairment; or
(iii) Is regarded as having such an impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i) Physical or mental impairment means:
(A) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological, musculoskeletal; special sense organs including speech
organs; respiratory; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(B) Any mental or psychological discorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(C) The term physical or mental impairment includes, but is not
limited to, such diseases and conditions as orthopedic, visual, speech
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental retardation,
emotional illness, drug addiction and alcoholism.
(ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working.
(iii) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(iv) Is regarded as having an impairment means:
(A) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by a recipient as
constituting such a limitation;
(B) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment;
(C) Has none of the impairments defined in paragraph (j)(2)(i) of
this section, but is treated by a recipient as having such an
impairment.
(k) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the
[[Page 18]]
essential functions of the job in question;
(2) With respect to public elementary, secondary, or adult
educational services, a handicapped person:
(i) Of an age during which nonhandicapped persons are provided such
services;
(ii) Of any age during which it is mandatory under State laws to
provide such services to handicapped persons; or
(iii) To whom a State is required to provide a free appropriate
public education under section 612 of the Education of the Handicapped
Act; and
(3) With respect to postsecondary and vocational education services,
a handicapped person who meets the academic and technical standards
requisite to admission or participation in the recipient's education
program or activity; and
(4) With respect to other services, a handicapped person who meets
the essential eligibility requirements for the receipt of such services.
(l) Handicap means any condition or characteristic that renders a
person a handicapped person as defined in paragraph (j) of this section.
Sec. 18.404 Discrimination prohibited.
(a) General. No qualified handicapped person shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity which receives or benefits from Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient, in providing
an aid, benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service that is
equal to that afforded others;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons unless such
action is necessary to provide qualified handicapped persons with aid,
benefits, or services that are as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped
person 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 recipient's program;
(vi) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped person in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving an aid, benefit, or service.
(2) Aids, benefits, and services, to be equally effective, are not
required to produce the identical result or level of achievement for
handicapped and nonhandicapped persons, but must give handicapped
persons equal opportunity to obtain the same result, to gain the same
benefit, or to reach the same level of achievement, in the most
integrated setting appropriate to the person's needs.
(3) Despite the existence of separate or different programs or
activities provided in accordance with this part, a recipient may not
deny a qualified handicapped person the opportunity to participate in
programs or activities that are not separate or different.
(4) A recipient may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration that:
(i) Have the effect of subjecting qualified handicapped persons to
discrimination on the basis of handicap,
(ii) Have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program
with respect to handicapped persons, or
(iii) Perpetuate the discrimination of another recipient if both
recipients are
[[Page 19]]
subject to common administrative control or are agencies of the same
State.
(5) In determining the site or location of a facility, an applicant
for assistance or a recipient may not make selections that:
(i) Have the effect of excluding handicapped persons from, deny them
the benefits of, or otherwise subject them to discrimination under any
program or activity that receives or benefits from Federal financial
assistance, or
(ii) Have the purpose or effect of defeating or substantially
impairing the accomplishment of the objective of the program or activity
with respect to handicapped persons.
(6) As used in this section, the aid, benefit, or service provided
under a program or activity receiving or benefiting from Federal
financial assistance includes any aid, benefit, or service provided in
or through a facility that has been constructed, expanded, altered,
leased or rented, or otherwise acquired, in whole of in part, with
Federal financial assistance.
(c) Programs limited by Federal law. The exclusion of nonhandicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statue or Executive order to a different
class of handicapped persons is not prohibited by this part.
(d) Special communication. Recipients shall take appropriate action
to ensure that communications with their applicants, employees, and
beneficiaries are available to persons with impaired vision and hearing.
Sec. 18.405 Assurances required.
(a) Assurances. An applicant for Federal financial assistance for a
program or activity to which this part applies shall submit an assurance
on a form specified by the Secretary, that the program will be operated
in compliance with this part.
(b) Duration of obligation. (1) When Federal financial assistance is
extended in the form of real property or structures on the property, the
assurance will obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used for the purpose for which Federal financial
assistance is extended or for another purpose involving the provisions
of similar services or benefits.
(2) Where Federal financial assistance is extended to provide
personal property, the assurance will obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases the assurance will obligate the recipient for
the period during which Federal financial assistance is extended.
(c) Extent of application to institution or facility. An assurance
shall apply to the entire institution or facility unless the applicant
establishes, to the satisfaction of the Secretary, that the
institution's practices in designated parts or programs of the
institution will in no way affect its practices in the program of the
institution for which Federal financial assistance is sought, or the
beneficiaries of or participants in such a program. If the assistance is
being received or requested for the construction of a facility or part
of a facility, the assurance shall apply to the entire facility and to
other facilities operated in connection with the facility.
(d) Covenants. (1) Where Federal financial assistance is provided in
the form of real property or interest in the property from the Agency,
the instrument effecting or recording this transfer shall contain a
covenant running with the land to assure nondiscrimination for the
period during which the real property is used for a purpose for which
the Federal financial assistance is extended or for another purpose
involving the provisions of similar services or benefits.
(2) Where no transfer of property is involved but property is
purchased or improved with Federal financial assistance, the recipient
shall agree to include the covenant described in paragraph (b)(2) of
this section in the instrument effecting or recording any subsequent
transfer of property.
(3) Where Federal financial assistance is provided in the form of
real property or interest in the property from the Agency, the covenant
shall also include a condition coupled with a right to be reserved by
the Agency to revert title to the property if there is a
[[Page 20]]
breach of the covenant. If a transferree of real property proposes to
mortgage or otherwise encumber the real property as security for
financing construction of new, or improvement of existing, facilities on
the property for the purpose for which the property was transferred, the
Secretary may, upon request of the transferee and if necessary to
accomplish such financing and upon such conditions as considered
appropriate, agree to forbear the exercise of the right to revert title
for as long as the lien of the mortgage or other encumbrance remains
effective.
(e) Other methods of enforcement. (1) Recipients are required to
keep such records as the responsible VA official deems necessary for
complete and accurate compliance reports. VA can specify intervals for
reporting and prescribe the form and content of information required to
ascertain whether the recipient has complied or is complying with the
law.
(2) Periodic compliance reviews of training establishments will be
conducted by VA compliance officers. During these reviews recipients are
required to permit access by VA compliance officers during normal
business hours to such of their books, records, accounts, facilities and
other sources of information including interviews with personnel and
trainees as may be pertinent to ascertain compliance with the law.
(3) From study of documentation, results of interviews, and
observation of activities during tours of facilities, compliance
officers will evaluate recipients' compliance status.
[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986]
Sec. 18.406 Remedial action, voluntary action and self-evaluation.
(a) Remedial action. (1) If the Secretary finds that a recipient has
discriminated against qualified persons on the basis of handicap in
violation of section 504 or this part, the recipient shall take such
remedial action as the Secretary considers necessary to overcome the
effects of the discrimination.
(2) Where a recipient is found to have discriminated against
qualified persons on the basis of handicap in violation of section 504
or this part and where another recipient exercises control over the
recipient that has discriminated, the Secretary, where appropriate, may
require either or both recipients to take remedial action.
(3) The Secretary may, where necessary to overcome the effects of
discrimination in violation of section 504 or this part, require a
recipient to take remedial action with respect to:
(i) Handicapped persons who are no longer participants in the
recipient's program but who were participants in the program when such
discrimination occurred;
(ii) Handicapped persons who would have been participants in the
program had the discrimination not occurred; or
(iii) Handicapped persons presently in the program, but not
receiving full benefits or equal and integrated treatment within the
program.
(b) Voluntary action. A recipient may take steps, in addition to any
action that is required by this part, to overcome the effects of
conditions that resulted in limited participation in the recipient's
program or activity by qualified handicapped persons.
(c) Self-evaluation. (1) A recipient shall, within one year of the
effective date of this part:
(i) Evaluate with the assistance of interested persons, including
handicapped persons or organizations representing handicapped persons,
its current policies and practices and the effects of the policies and
practices that do not or may not meet the requirements of this part;
(ii) Modify, after consultation with interested persons, including
handicapped persons or organizations representing handicapped persons,
any policies and practices that do not meet the requirements of this
part; and
(iii) Take, after consultation with interested persons, including
handicapped persons or organizations representing handicapped persons,
appropriate remedial steps to eliminate the effects of any
discrimination that resulted from adherence to these policies and
practices.
(2) A recipient that employs fifteen or more persons shall, for at
least three years following completion of the evaluation required under
paragraph (c)(1) of this section, maintain on file, make
[[Page 21]]
available for public inspection, and provide to the Secretary upon
request:
(i) A list of the interested persons consulted;
(ii) A description of areas examined and any problems identified;
and
(iii) A description of any modifications made and of any remedial
steps taken.
(3) Recipients who become such more than one year after the
effective date of these regulations shall complete these self-evaluation
requirements within one year after becoming recipients of Federal
financial assistance.
(The information collection requirements contained in paragraph (c) have
been approved by the Office of Management and Budget under control
number 2900-0415)
[45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15, 1984]
Sec. 18.407 Designation of responsible employee and adoption of
grievance procedures.
(a) Designation of responsible employee. A recipient that employs
fifteen or more persons shall designate at least one person to
coordinate its efforts to comply with this part.
(b) Adoption of grievance procedures. A recipient that employs
fifteen or more persons shall adopt grievance procedures that
incorporate appropriate due process standards and that provide for the
prompt and equitable resolution of complaints alleging any action
prohibited by this part. Such procedures need not be established with
respect to complaints from applicants for employment or from applicants
for admission to postsecondary educational institutions.
Sec. 18.408 Notice.
(a) A recipient that employs fifteen or more persons shall take
appropriate initial and continuing steps to notify participants,
beneficiaries, applicants, and employees, including those with impaired
vision or hearing, and unions or professional organizations holding
collective bargaining or professional agreements with the recipient that
it does not discriminate on the basis of handicap in violation of
section 504 and this part. The notification shall state, where
appropriate, that the recipient does not discriminate in admission or
access to, or treatment, or employment in, its programs and activities.
The notification shall also include an identification of the responsible
employee designated under Sec. 18.407. A recipient shall make the
initial notification required by this paragraph within 90 days of the
effective date of this part. Methods of initial and continuing
notification may include the posting of notices, publication in
newspapers and magazines, placement of notices in recipient's
publication, and distribution of memorandums or other written
communications.
(b) If a recipient publishes or uses recruitment materials or
publications containing general information that it makes available to
participants, beneficiaries, applicants, or employees, it shall include
in those materials or publications a statement of the policy described
in paragraph (a) of this section. A recipient may meet the requirement
of this section either by including appropriate inserts in existing
materials and publications or by revising and reprinting the materials
and publications.
Sec. 18.409 Administrative requirements for certain recipients.
The Secretary may require any recipient with fewer than fifteen
employees, or any class of such recipients, to comply with Secs. 18.407
and 18.408 in whole or in part, when the Secretary finds a violation of
this part or finds that such compliance will not significantly impair
the ability of the recipient or class of recipients to provide benefits
or services.
Sec. 18.410 Effect of State or local law or other requirements and
effect of employment opportunities.
(a) The obligation to comply with this part is not obviated or
alleviated by the existence of any State law or other requirement that,
on the basis of handicap, imposes prohibitions or limits upon the
eligibility of qualified handicapped persons to receive services or to
practice any occupation or profession.
(b) The obligation to comply with this part is not obviated or
alleviated because employment opportunities in any occupation or
profession are or
[[Page 22]]
may be more limited for handicapped persons than for nonhandicapped
persons.
Employment Practices
Sec. 18.411 Discrimination prohibited.
(a) General. (1) No qualified handicapped person shall, on the basis
of handicap, be subjected to discrimination in employment under any
program or activity to which this part applies.
(2) A recipient shall make all decisions concerning employment under
any program or activity to which this part applies in a manner which
ensures that discrimination on the basis of handicap does not occur and
may not limit, segregate, or classify applicants or employees in any way
that adversely affects their opportunities or status because of
handicap.
(3) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination in employment. The
relationships referred to in this section include relationships with
employment and referral agencies, with organizations providing or
administering fringe benefits to employees of the recipient, and with
organizations providing training and apprenticeship programs.
(b) Specific activities. Nondiscrimination in employment applies to:
(1) Recruitment, advertising, and the processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(3) Rates of pay or other forms of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or
not administered by the recipient;
(7) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, and selection for leaves of absence to pursue training;
(8) Employer sponsored activities, including social or recreational
programs; and
(9) Any other term, condition, or privilege of employment.
(c) Collective bargaining agreements. A recipient's obligation to
comply with this subpart is not affected by any inconsistent term of any
collective bargaining agreement to which it is a party.
Sec. 18.412 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or mental limitations of a handicapped applicant or employee if
such accommodation would enable that person to perform the essential
functions of the job unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program.
(b) Reasonable accommodation may include:
(1) Making facilities used by employees readily accessible to and
usable by handicapped persons; and
(2) Job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices, the provision of
readers or interpreters and other similar actions.
(c) In determining under paragraph (a) of this section whether an
accommodation would impose an undue hardship on the operation of a
recipient's program, factors to be considered include:
(1) The overall size of the recipient's program with respect to
number of employees, number and type of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's work force; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a
qualified handicapped employee or applicant if the basis for denial is
the need to make reasonable accommodation to the
[[Page 23]]
physical or mental limitations of the employee or applicant.
[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986]
Sec. 18.413 Employment criteria.
(a) A recipient may not use any employment test or other selection
criterion that screens out or tends to screen out handicapped persons or
any class of handicapped persons unless:
(1) The test score or other selection criterion, as used by the
recipient, is shown to be job-related for the position in question; and
(2) Alternative job-related tests or criteria that do not screen out
or tend to screen out as many handicapped persons are not shown by the
Secretary to be available.
(b) A recipient shall select and administer tests concerning
employment to best ensure that when administered to an applicant or
employee who has a handicap that impairs sensory, manual, or speaking
skills, the test results accurately reflect the applicant's or
employee's job skills, aptitude, or whatever other factor the test
purports to measure, rather than reflect the applicant's or employee's
impaired sensory, manual, or speaking skills (except when those skills
are the factors that the test purports to measure).
Sec. 18.414 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct a preemployment medical examination or may not
make preemployment inquiry of an applicant as to whether the applicant
is a handicapped person or as to the nature or severity of a handicap. A
recipient may, however, make preemployment inquiry into the applicant's
ability to perform job-related functions.
(b) When a recipient is taking remedial action to correct the
effects of past discrimination pursuant to Sec. 18.406(a), when a
recipient is taking voluntary action to overcome the effects of
conditions that resulted in limited participation in its federally
assisted program or activity pursuant to Sec. 18.406(b), or when a
recipient is taking affirmative action pursuant to section 503 of the
Act, the recipient may invite applicants for employment to indicate
whether and to what extent they are handicapped, provided that:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally if no written questionnaire is
used that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary or
affirmative action efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential as
provided in paragraph (d) of this section, that refusal to provide it
will not subject the applicant or employee to any adverse treatment, and
that it will be used only in accordance with this part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty, provided
that:
(1) All entering employees are subjected to such an examination
regardless of handicap, and (2) the results of such an examination are
used only in accordance with the requirements of this part.
(d) Information obtained in accordance with this section as to the
medical condition or history of the applicant shall be collected and
maintained on separate forms that shall be accorded confidentiality as
medical records, except that:
(1) Supervisors and managers may be informed regarding restrictions
on the work or duties of handicapped persons and regarding necessary
accommodations;
(2) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment;
(3) Government officials investigating compliance with the Act shall
be provided relevant information upon request.
Program Accessibility
Sec. 18.421 Discrimination prohibited.
No qualified handicapped person shall, because a recipient's
facilities are inaccessible to or unusable by handicapped persons, be
denied the
[[Page 24]]
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity to which this
part applies.
Sec. 18.422 Existing facilities.
(a) Program accessibility. A recipient shall operate each program or
activity to which this part applies so that the program or activity,
when viewed in its entirety, is readily accessible to handicapped
persons. This paragraph does not require a recipient to make each of its
existing facilities or every part of a facility accessible to and usable
by handicapped persons.
(b) Methods. A recipient may comply with the requirement of
paragraph (a) of this section through such measures as redesign of
equipment, reassignment of classes or other services to accessible
buildings, assignment of aids to beneficiaries, home visits, delivery of
health, or other social services at alternate accessible sites,
alteration of existing facilities and construction of new facilities in
conformance with Sec. 18.423 or any other methods that make its program
or activity accessible to handicapped persons. A recipient is not
required to make structural changes in existing facilities where other
methods are effective in making its programs or activities readily
accessible to handicapped persons. In choosing among available methods
for complying with paragraph (a) of this section, a recipient shall give
priority to methods that offer programs and activities to handicapped
persons in the most integrated setting appropriate.
(c) Small health, welfare or other social service providers, and
recipients that operate other than educational programs or activities.
If a recipient with fewer than fifteen employees finds after
consultation with a handicapped person seeking its services that there
is no method of complying with paragraph (a) of this section other than
making a significant alteration in its existing facilities, the
recipient may, as an alternative, refer the qualified handicapped person
to other providers whose services are accessible. Where referrals are
necessary, transportation costs shall not exceed costs to and from
recipients' programs.
(d) Time period. A recipient shall comply with paragraph (a) of this
section within 60 days of the effective date of this part except that
when structural changes in facilities are necessary, these changes shall
be made as soon as practicable, but not later than three years after the
effective date of this part.
(e) Transition plan. If structural changes to facilities are
necessary to meet the requirements of paragraph (a) of this section, a
recipient shall develop a transition plan within six months of the
effective date of this part setting forth the steps necessary to
complete such change. The plan shall be developed with the assistance of
interested persons, including handicapped persons or organizations
representing handicapped persons. A copy of the transition plan shall be
available for public inspection. The plan shall, at a minimum:
(1) Identify physical obstacles in the recipient's facilities that
limit the accessibility of its program or activity to handicapped
persons;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
full program accessibility and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the person responsible for implementation of the plan.
(f) Notice. The recipient shall implement procedures to ensure that
interested persons, including persons with impaired vision or hearing,
can obtain information concerning the existence and location of
services, activities, and facilities that are accessible to and usable
by handicapped persons.
(The information collection requirements contained in paragraph (e) have
been approved by the Office of Management and Budget under control
number 2900-0414)
[45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15, 1984]
Sec. 18.423 New construction.
(a) Design and construction. Each facility or part of a facility
constructed
[[Page 25]]
by, on behalf of, or for the use of a recipient shall be designed and
constructed so that the facility or part of the facility is readily
accessible to and usable by handicapped persons, if the construction was
commenced after the effective date of this part.
(b) Alteration. Each facility or part of a facility which is altered
by, on behalf of, or for the use of a recipient after the effective date
of this part in a manner that affects or could affect the usability of
the facility or part of the facility shall, to the maximum extent
feasible, be altered so that the altered portion of the facility is
readily accessible to and usable by handicapped persons.
(c) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of January 18, 1991, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6)
shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and
scoping requirements of UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of the
building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
[45 FR 63268, Sept. 24, 1980, as amended at 55 FR 52138, 52141, Dec. 19,
1990]
Elementary, Secondary, and Adult Education
Sec. 18.431 Application.
Sections 18.431 through 18.439 apply to elementary, secondary, and
adult education programs and activities that receive or benefit from
Federal financial assistance from the Department of Veterans Affairs and
to recipients that operate or receive or benefit from Federal financial
assistance for the operation of such programs or activities.
Sec. 18.432 Location and notification.
A recipient that operates a public elementary or secondary
educational program shall annually:
(a) Undertake to identify and locate every qualified handicapped
person residing in the recipient's jurisdiction who is not receiving a
public education; and
(b) Take appropriate steps to notify handicapped persons their
parents or guardians of the recipients's duty under Secs. 18.431 through
18.439.
Sec. 18.433 Free appropriate public education.
(a) General. A recipient that operates a public elementary or
secondary education program shall provide a free appropriate public
education to each qualified handicapped person who is in the recipient's
jurisdiction, regardless of the nature or severity of the person's
handicap.
(b) Appropriate education. (1) The provision of an appropriate
education is the provision of regular or special education and related
aids and services that:
(i) Are designed to meet individual educational needs of handicapped
persons as adequately as the needs of nonhandicapped persons are met;
and
(ii) Are based upon adherence to procedures that satisfy the
requirements of Secs. 18.434, 18.435, and 18.436.
(2) Implementation of an individualized education program developed
in accordance with the Education of the Handicapped Act is one means of
meeting the standard established in paragraph (b)(1)(i) of this section.
(3) A recipient may place a qualified handicapped person in or refer
that person to a program other than the one that it operates as its
means of carrying out the requirements of Secs. 18.431 through 18.439.
The recipients remain responsible for ensuring that the requirements of
Secs. 18.431 through 18.439 are met with respect to any qualified
[[Page 26]]
handicapped person so placed or referred.
(c) Free education. (1) The provision of a free education is the
provision of educational and related services without cost to the
handicapped person, parents or guardian, except for those fees that are
imposed on nonhandicapped persons or their parents or guardian. It may
consist either of the provision of free services or, if a recipient
places a handicapped person in or refers that person to a program not
operated by the recipient as its means of carrying out the requirements
of Secs. 18.431 through 18.439, of payment for the costs of the program.
Funds available from any public or private agency may be used to meet
the requirements of this subpart. Nothing in this section shall be
construed to relieve an insurer or similar third party from an otherwise
valid obligation to provide or pay for services provided to a
handicapped person.
(2) If a recipient places a handicapped person in or refers that
person to a program not operated by the recipient as its means of
carrying out the requirements of this subpart, the recipient shall
ensure that adequate transportation to and from the program is provided
at no greater cost than would be incurred by the person, parents or
guardian if the person were placed in the program operated by the
recipient.
(3) If placement in a public or private residential program is
necessary to provide free appropriate public education to a handicapped
person because of his or her handicap, the program, including non-
medical care and room and board, shall be provided at no cost to the
person, parents or guardian.
(4) If a recipient has made available, in conformance with this
section and Sec. 18.434, a free appropriate public education to a
handicapped person and the person's parents or guardian chooses to place
the person in a private school, the recipient is not required to pay for
the person's education in the private school. Disagreements between a
parent or guardian and a recipient regarding whether the recipient has
made such a program available or regarding the question of financial
responsibility are subject to the due process procedures of Sec. 18.436.
(d) Compliance. A recipient may not exclude any qualified
handicapped person from a public elementary or secondary education after
the effective date of this part. A recipient that is not, on the
effective date of this part, in full compliance with the requirements of
paragraphs (a) through (c) of this section shall meet those requirements
at the earliest practicable time, but not later than October 1, 1981.
[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986;
51 FR 12702, Apr. 15, 1986]
Sec. 18.434 Education setting.
(a) Academic setting. A recipient shall educate, or shall provide
for the education of, each qualified handicapped person in its
jurisdiction with persons who are not handicapped to the maximum extent
appropriate to the needs of the handicapped person. A recipient shall
place a handicapped person in the regular educational environment
operated by the recipient unless it is demonstrated by the recipient
that the education of the person in the regular environment with the use
of supplementary aids and services cannot be achieved satisfactorily. In
deciding whether to place a person in a setting other than the regular
educational environment, a recipient shall consider the proximity of the
alternate setting to the person's home.
(b) Nonacademic settings. In providing or arranging for the
provision of nonacademic and extracurricular services and activities, a
recipient shall ensure that handicapped persons participate with
nonhandicapped persons in those activities and services to the maximum
extent appropriate to the needs of the handicapped person in question.
(c) Comparable facilities. If a recipient in compliance with
paragraph (a) of this section operates a facility that is identifiable
as being for handicapped persons, the recipient shall ensure that the
facility and the services and activities provided in that facility are
comparable to the other facilities, services, and activities of the
recipient.
Sec. 18.435 Evaluation and placement.
(a) Preplacement evaluation. A recipient that operates a public
elementary or secondary education program shall
[[Page 27]]
conduct an evaluation of any qualified person who, because of handicap,
needs or is believed to need special education or related services
before taking any action concerning the initial placement of the person
in a regular or special program and any subsequent change in placement.
(b) Evaluation procedures. Elementary, secondary, and adult
education programs and activities that receive or benefit from Federal
financial assistance shall establish standards and procedures for the
evaluation and placement of persons who, because of handicap, need or
are believed to need special education or related services which ensure
that:
(1) Tests and other evaluation materials have been validated for the
specific purpose for which they are used and are administered by trained
personnel in conformance with the instructions provided by their
producer;
(2) Tests and other evaluation materials include those tailored to
assess specific areas of educational need and not merely those which are
designed to provide a single general intelligence quotient; and
(3) Tests are selected and administered to best ensure that, when a
test is administered to a student with impaired sensory, manual, or
speaking skills, the test results accurately reflect the student's
aptitude or achievement level or whatever other factor the test purports
to measure, rather than reflect the student's impaired sensory, manual,
or speaking skills (except where those skills are the factors that the
test purports to measure.)
(c) Placement procedures. In interpreting evaluation data and in
making placement decisions, a recipient shall:
(1) Draw upon information from a variety of sources, including
aptitude and achievement tests, teacher recommendations, physical
condition, social or cultural background and adaptive behavior;
(2) Establish procedures to ensure that information obtained from
all sources is documented and carefully considered;
(3) Ensure that the placement decision is made by a group of
persons, including persons knowledgeable about the student, the meaning
of the evaluation data and the placement options; and
(4) Ensure that the placement decision is made in accordance with
Sec. 18.434.
(d) Reevaluation. A recipient to which this section applies shall
establish procedures, in accordance with paragraph (b) of this section,
for periodic reevaluation of students who have been provided special
education and related services. A reevaluation procedure consistent with
the Education for the Handicapped Act is one means of meeting this
requirement.
Sec. 18.436 Procedural safeguards.
(a) A recipient that operates a public elementary or secondary
education program shall implement a system of procedural safeguards with
respect to actions regarding the identification, evaluation, or
educational placement of persons who, because of handicap, need or are
believed to need special instruction or related services. The system
shall include:
(1) Notice;
(2) An opportunity for the parents or guardian of the person to
examine relevant records;
(3) An impartial hearing with opportunity for participation by the
person's parents or guardian and representation by counsel; and
(4) Review procedure.
(b) Compliance with the procedural safeguards of section 615 of the
Education of the Handicapped Act is one means of meeting this
requirement.
Sec. 18.437 Nonacademic services.
(a) General. (1) Elementary, secondary, and adult education programs
that receive or benefit from Federal financial assistance shall provide
nonacademic and extracurricular services and activities in a manner
which gives handicapped students an equal opportunity for participation
in these services and activities.
(2) Nonacademic and extracurricular services and activities may
include counseling services, physical recreational athletics,
transportation, health services, recreational activities, special
interest groups or clubs sponsored by the recipient, referrals to
agencies which provide assistance to handicapped persons, and employment
[[Page 28]]
of students, including both employment by the recipient and assistance
in making available outside employment.
(b) Counseling services. Elementary, secondary, and adult education
programs that receive or benefit from Federal financial assistance and
that provide personal, academic, or vocational counseling, guidance, or
placement services to their students shall provide these services
without discrimination on the basis of handicap and shall ensure that
qualified handicapped students are not counseled toward more restrictive
career objectives than are nonhandicapped students with similar
interests and abilities.
(c) Physical education and athletics. (1) In providing physical
education courses and athletics and similar programs and activities to
any of its students, an elementary, secondary, or adult education
program or activity that receives or benefits from Federal financial
assistance may not discriminate on the basis of handicap. A recipient
that offers physical education courses or that operates or sponsors
interscholastic, club, or intramural activities shall provide to
qualified handicapped students an equal opportunity for participation in
these activities.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different from those
offered to nonhandicapped students only if separation or differentiation
is consistent with the requirements of Sec. 18.434 and only if no
qualified handicapped student is denied the opportunity to compete for
teams or to participate in courses that are not separate or different.
Sec. 18.438 Adult education programs.
A recipient that operates an adult education program or activity may
not, on the basis of handicap, exclude qualified handicapped persons
from the program or activity. The recipient shall take into account the
needs of these persons in determining the aid, benefits, or services to
be provided under the program or activity.
Sec. 18.439 Private education programs.
(a) A recipient that operates a private elementary or secondary
education program may not on the basis of handicap, exclude a qualified
handicapped person from that program if the person can, with minor
adjustments, be provided an appropriate education, as defined in
Sec. 18.433(b)(1), within the recipient's program.
(b) A recipient may not charge more for providing an appropriate
education to handicapped persons than to nonhandicapped persons except
to the extent that any additional charge is justified by a substantial
increase in cost to the recipient.
(c) A recipient to which this section applies that operates special
education programs shall operate those programs in accordance with
Secs. 18.435 and 18.436. Each recipient to which this section applies is
subject to Secs. 18.434, 18.437, and 18.438.
Postsecondary Education
Sec. 18.441 Application.
Sections 18.441 through 18.447 apply to postsecondary education
programs and activities that receive or benefit from Federal financial
assistance from the Department of Veterans Affairs and to recipients
that operate or receive or benefit from Federal financial assistance for
the operation of such programs or activities.
Sec. 18.442 Admissions and recruitment.
(a) General. Qualified handicapped persons may not, on the basis of
handicap, be denied admission or be subjected to discrimination in
admission or recruitment by a recipient.
(b) Admission. In administering its admission policies, a recipient;
(1) May not apply limitations on the number or proportion of
handicapped persons who may be admitted;
(2) May not use any test or criterion for admission that has a
disproportionate, adverse effect on handicapped persons or any class of
handicapped persons unless:
(i) The test or criterion, as used by the recipient, has been
validated as a predictor of success in the education program or activity
in question; and
(ii) Alternate tests or criteria that have a less disproportionate,
adverse effect are not shown by the Secretary to be available;
[[Page 29]]
(3) Shall assure itself that:
(i) Admissions tests are selected and administered to best ensure
that, when a test is administered to an applicant who has a handicap
that impairs sensory, manual, or speaking skills, the test results
accurately reflect the applicant's aptitude or achievement level or
whatever other factors the test purports to measure, rather than reflect
the applicant's impaired sensory, manual, or speaking skills (except
where those skills are the factors that the test purports to measure);
(ii) Admissions tests that are designed for persons with impaired
sensory, manual, or speaking skills are offered as often and in as
timely a manner as are other admissions tests; and
(iii) Admissions tests are administered in facilities that, on the
whole, are accessible to handicapped persons; and
(4) Except as provided in paragraph (c) of this section, may not
make preadmission inquiries as to whether an applicant for admission is
a handicapped person. After admission, the recipient may inquire on a
confidential basis as to handicaps that may require accommodation.
(c) Preadmission inquiry exception. When a recipient is taking
remedial action to correct the effects of past discrimination under
Sec. 18.406(a) or when a recipient is taking voluntary action to
overcome the effects of conditions that resulted in limited
participation in its federally assisted program or activity under
Sec. 18.406(b), the recipient may invite applicants for admission to
indicate whether and to what extent they are handicapped.
(1) The recipient shall state clearly on any written questionnaire
used for this purpose or make clear orally if no written questionnaire
is used that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary action
efforts; and
(2) The recipient shall state clearly that the information is being
requested on a voluntary basis, that it will be kept confidential, that
refusal to provide it will not subject the applicant to any adverse
treatment, and that it will be used only in accordance with this part.
(d) Validity studies. For the purpose of paragraph (b)(2) of this
section, a recipient may base prediction equations on first year grades,
but shall conduct periodic validity studies against the criterion of
overall success in the education program or activity in question to
monitor the general validity of the test scores.
Sec. 18.443 General treatment of students.
(a) No qualified handicapped student shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any academic,
research, occupational training, housing, health insurance, counseling,
financial aid, physical education, athletics, recreation,
transportation, other extracurricular, or other program or activity
operated by a recipient to which this subpart applies.
(b) A recipient that considers participation by students in
education programs or activities not operated wholly by the recipient as
part of, or equivalent to, an education program or activity operated by
the recipient shall assure itself that the other education program or
activity, as a whole, provides an equal opportunity for the
participation of qualified handicapped persons.
(c) A recipient to which this subpart applies may not, on the basis
of handicap, exclude any qualified handicapped student from any course,
course of study, or other part of its education program or activity.
(d) A recipient shall operate its programs and activities in the
most integrated setting appropriate.
Sec. 18.444 Academic adjustments.
(a) Academic requirements. A recipient shall make necessary
modifications to its academic requirements to ensure that these
requirements do not discriminate or have the effect of discriminating,
on the basis of handicap, against a qualified handicapped applicant or
student. Modifications may include changes in the length of time
permitted for the completion of degree requirements, substitution of
specific courses required for the completion of degree requirements, and
adaptation of the manner in which specific courses
[[Page 30]]
are conducted. Academic requirements that the recipient can demonstrate
are essential to the program of instruction being pursued by the student
or to any directly related licensing requirement will not be regarded as
discriminatory within the meaning of this section.
(b) Other rules. A recipient may not impose upon handicapped
students other rules, such as the prohibition of tape recorders in
classrooms or guide dogs in campus buildings, that have the effect of
limiting the participation of handicapped students in the recipient's
education program or activity.
(c) Course examinations. In its course examinations or other
procedures for evaluating students' academic achievement in its program,
a recipient shall provide methods for evaluating the achievement of
students who have a handicap that impairs sensory, manual, or speaking
skills that will best ensure that the results of the evaluation
represent the students' achievement in the course, rather than reflect
the students' impaired sensory, manual, or speaking skills (except where
such skills are the factors that the test purports to measure).
(d) Auxiliary aids. (1) A recipient shall ensure that no qualified
handicapped student is denied the benefits of, excluded from
participation in, or otherwise subjected to discrimination under the
education program or activity operated by the recipient because of the
absence of educational auxiliary aids for students with impaired
sensory, manual, or speaking skills.
(2) Auxiliary aids may include taped texts, interpreters or other
effective methods of making orally delivered materials available to
students with hearing impairments, readers in libraries for students
with visual impairments, classroom equipment adapted for use by students
with manual impairments, and other similar services and actions.
Recipients need not provide attendants, individually prescribed devices,
readers for personal use or study, or other devices or services of a
personal nature.
Sec. 18.445 Housing.
(a) Housing provided by a recipient. A recipient that provides
housing to its nonhandicapped students shall provide comparable,
convenient, and accessible housing to qualified handicapped students at
the same cost as to others. At the end of the transition period provided
for in Sec. 18.422(e), this housing shall be available in sufficient
quantity and variety so that the scope of handicapped students' choice
of living accommodations is, as a whole, comparable to that of
nonhandicapped students.
(b) Other housing. A recipient that assists any agency,
organization, or person in making housing available to any of its
students shall assure itself that such housing is, as a whole, made
available in a manner that does not result in discrimination on the
basis of handicap.
Sec. 18.446 Financial and employment assistance to students.
(a) Provision of financial assistance. (1) In providing financial
assistance to qualified handicapped persons, a recipient may not:
(i) On the basis of handicap, provide less assistance than is
provided to nonhandicapped persons, limit eligibility for assistance, or
otherwise discriminate; or
(ii) Assist any entity or person that provides assistance to any of
the recipient's students in a manner that discriminates against
qualified handicapped persons on the basis of handicap.
(2) A recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established under wills, trusts, bequests, or similar legal instruments
that require awards to be made on the basis of factors that discriminate
or have the effect of discriminating on the basis of handicap only if
the overall effect of the award of scholarships, fellowships, and other
forms of financial assistance is not discriminatory on the basis of
handicap.
[[Page 31]]
(b) Assistance in making available outside employment. A recipient
that assists any agency, organization, or person in providing employment
opportunities to any of its students shall assure itself that these
employment opportunities, as a whole, are made available in a manner
that would not violate Secs. 18.411 through 18.414 if the opportunities
were provided by the recipient.
(c) Employment of students by recipients. A recipient that employs
any of its students may not do so in a manner that violates Secs. 18.411
through 18.414.
Sec. 18.447 Nonacademic services.
(a) Physical education and athletics. (1) In providing physical
education courses and athletics and similar programs and activities to
any of its students, a recipient may not discriminate on the basis of
handicap. A recipient that offers physical education courses or that
operates or sponsors intercollegiate, club or intramural athletics shall
provide to qualified handicapped students an equal opportunity for
participation in these activities.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different only if
separation or differentiation is consistent with the requirements of
Sec. 18.443(d) and only if no qualified handicapped student is denied
the opportunity to compete for teams or to participate in courses that
are not separate or different.
(b) Counseling and placement services. A recipient that provides
personal, academic, or vocational counseling, guidance, or placement
services to its students shall provide these services without
discrimination on the basis of handicap. The recipient shall ensure that
qualified handicapped students are not counseled toward more restrictive
career objectives than are nonhandicapped students with similar
interests and abilities. This requirement does not preclude a recipient
from providing factual information about licensing and certification
requirements that may present obstacles to handicapped persons in their
pursuit of particular careers.
(c) Social organizations. A recipient that provides significant
assistance to fraternities, sororities, or similar organizations shall
assure itself that the membership practices of these organizations do
not permit discrimination otherwise prohibited by Secs. 18.441 through
18.447.
Health and Social Services
Sec. 18.451 Application.
Subpart F applies to health, and other social service programs and
activities that receive or benefit from Federal financial assistance
from the Department of Veterans Affairs and to recipients that operate
or receive or benefit from Federal financial assistance for the
operation of such programs or activities.
Sec. 18.452 Health and other social services.
(a) General. In providing health, or other social services or
benefits, a recipient may not, on the basis of handicap:
(1) Deny a qualified handicapped person these benefits or services;
(2) Give a qualified handicapped person the opportunity to receive
benefits or services that are not equal to those offered nonhandicapped
persons.
(3) Provide a qualified handicapped person with benefits or services
that are not as effective (as defined in Sec. 18.404(b)(2)) as the
benefits or services provided to others;
(4) Provide benefits or services in a manner that limits or has the
effect of limiting the participation of qualified handicapped persons;
or
(5) Provide different or separate benefits or services to
handicapped persons except where necessary to provide qualified
handicapped persons with benefits and services that are as effective as
those provided to others.
(b) Notice. A recipient that provides notice concerning benefits or
services or written material concerning waivers of rights of consent to
treatment shall ensure that qualified handicapped persons, including
those with impaired sensory or speaking skills, are not denied effective
notice because of their handicap.
(c) Emergency treatment for the hearing impaired. A recipient
hospital that provides health services or benefits shall
[[Page 32]]
establish a procedure for effective communication with persons with
impaired hearing for the purpose of providing emergency care.
(d) Auxiliary aids. (1) A recipient that employs fifteen or more
persons shall provide appropriate auxiliary aids to persons with
impaired sensory, manual, or speaking skills, where necessary to give
these persons an equal opportunity to benefit from the service in
question.
(2) The Secretary may require recipients with fewer than fifteen
employees to provide auxiliary aids where the provision of aids would
not significantly impair the ability of the recipient to provide its
benefits or services.
(3) Auxiliary aids may include brailled and taped material,
interpreters, and aids for persons with impaired hearing or vision.
Sec. 18.453 Drug and alcohol addicts.
A recipient that operates a general hospital or outpatient facility
may not discriminate, with regard to a drug or alcohol abuser or
alcoholic who is suffering from a medical condition, in the admission of
that person for treatment of the medical condition, or in the treatment
of the medical condition because of the person's drug or alcohol abuse
or alcoholism.
Sec. 18.454 Education of institutionalized persons.
A recipient that operates or supervises a program or activity for
persons who are institutionalized because of handicap and is responsible
for providing training shall ensure that each qualified handicapped
person, as defined in Sec. 18.403(k)(2), in its program or activity is
provided an appropriate education, as defined in Sec. 18.433(b). Nothing
in this section shall be interpreted as altering in any way the
obligations of recipients under Secs. 18.431 through 18.439.
[45 FR 63268, Sept. 24, 1980; 51 FR 12702, Apr. 15, 1986]
Procedures
Sec. 18.461 Procedures.
The procedural provisions applicable to Title VI of the Civil Rights
Act of 1964 apply to this part. These procedures are found in Secs. 18.6
through 18.11 and part 18b of this chapter.
Appendix A to Subpart D to Part 18--Statutory Provisions to Which This
Part Applies
1. Payments to State Homes (38 U.S.C. 1741-1743).
2. State home facilities for furnishing domiciliary, nursing home, and
hospital care (38 U.S.C. 8131-8137).
3. Transfers for nursing home care; adult day health care (38 U.S.C.
1720).
4. Sharing of medical facilities, equipment, and information (38 U.S.C.
8151-8157).
5. Assistance in establishing new state medical schools, grants to
affiliated medical schools; assistance to health manpower
training institutions (38 U.S.C. Chapter 82).
6. Approval of educational institutions (38 U.S.C. 104).
7. Medical care for survivors and dependents of certain veterans (38
U.S.C. 1713).
8. Space and office facilities for representatives of State employment
service (38 U.S.C. 7725(4)).
9. Space and office facilities for representatives of recognized
national service organizations (38 U.S.C. 5902(a)(2)).
10. All-volunteer force educational assistance, vocational
rehabilitation post-Vietnam era veterans educational
assistance; veterans educational assistance, survivors' and
dependents' educational assistance, and administration of
educational benefits (38 U.S.C. Chapters 30, 31, 32, 34, 35
and 36 respectively).
11. Treatment and rehabilitation for alcohol or drug dependence or abuse
disabilities (38 U.S.C. 1720A).
12. Aid to States for establishment, expansion, and improvement of
veterans cemeteries (38 U.S.C. 2408).
13. Department of Veterans Affairs health professional scholarship
program (38 U.S.C. 7601-7655).
14. Emergency veterans job training (Pub. L. 98-77, 97 Stat. 443-452).
[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986;
51 FR 12702, Apr. 15, 1986]
Subpart E--Nondiscrimination on the Basis of Age
Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C.
6101, et seq.; 45 CFR part 90 (1979).
Source: 50 FR 34133, Aug. 23, 1985, unless otherwise noted.
[[Page 33]]
General
Sec. 18.501 Purpose.
The purpose of these regulations is to set out Department of
Veterans Affairs (VA) policies and procedures under the Age
Discrimination Act of 1975 and the governmentwide age discrimination
regulations at 45 CFR part 90. The Act and the governmentwide
regulations prohibit discrimination on the basis of age in programs or
activities receiving Federal financial assistance. The Act and the
governmentwide regulations permit federally assisted programs and
activities, and recipients of Federal funds, to continue to use age
distinctions and factors other than age which meet the requirements of
the Act and its implementing regulations.
(Authority: 42 U.S.C. 6101-6107)
[50 FR 34133, Aug. 23, 1985, as amended at 54 FR 34984, Aug. 23, 1989]
Sec. 18.502 Application.
(a) These regulations apply to any program or activity receiving
Federal financial assistance provided by VA directly or through another
recipient.
(b) These regulations do not apply to:
(1) An age distinction contained in that part of a Federal, State,
or local statute or ordinance adopted by an elected, general purpose
legislative body which:
(i) Provides any benefits or assistance to persons based on age; or
(ii) Establishes criteria for participation in age-related terms; or
(iii) Describes intended beneficiaries or target groups in age-
related terms.
(2) Any employment practice of any employer, employment agency,
labor organization, or any labor-management joint apprenticeship
training program, except any program or activity receiving Federal
financial assistance for public service employment under the Job
Training Partnership Act, 29 U.S.C. 1501, et seq.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.503 Definitions.
As used in these regulations:
(a) Act means the Age Discrimination Act of 1975, as amended (Title
III of Pub. L. 94-135, 42 U.S.C. 6101-6107).
(b) Action means any act, activity, policy, rule, standard, or
method of administration; or the use of any policy, rule, standard, or
method of administration.
(c) Secretary means the Secretary of Veterans Affairs or designees.
(d) Age means how old a person is, or the number of elapsed years
from the date of a person's birth.
(e) Age discrimination means unlawful treatment based on age.
(f) Age distinction means any action using age or an age-related
term.
(g) Age-related term means a word or words which necessarily imply a
particular age or range of ages (for example, children, adult, older
persons, but not student).
(h) Day means calendar day.
(i) Federal financial assistance means any grant, entitlement, loan,
cooperative agreement, contract (other than a procurement contract or a
contract of insurance or guaranty), or any other arrangement by which a
Federal agency or department provides or otherwise makes available
assistance in the form of:
(1) Funds; or
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of
property, including:
(i) Transfers or leases of property for less than fair market value
or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of property if the
Federal share of its market value is not returned to the Federal
Government.
(j) Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended, directly or
through another recipient. Recipient includes any successor, assignee,
or transferee, but excludes the ultimate beneficiary of the assistance.
(k) Subrecipient means any of the entities in the definition of
recipient to which a recipient extends or passes on Federal financial
assistance. A subrecipient is generally regarded as a recipient of
Federal financial assistance
[[Page 34]]
and has all the duties of a recipient in these regulations.
(l) United States means the fifty States, the District of Columbia,
Puerto Rico, the Virgin Islands, the Canal Zone, the Trust Territories
of the Pacific Islands, the Northern Marianas, and the territories and
possessions of the United States.
(Authority: 42 U.S.C. 6101-6107)
Standards for Determining Age Discrimination
Sec. 18.511 Rules against age discrimination.
The rules in this section are limited by the exceptions contained in
Secs. 18.513 and 18.514 of these regulations.
(a) General rule. No person in the United States shall, on the basis
of age, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under, any program or activity receiving
Federal financial assistance.
(b) Specific rules. A recipient may not, in any program or activity
receiving Federal financial assistance, directly or through contractual
licensing, or other arrangements, use age distinctions or take any other
actions which have the effect, on the basis of age, of:
(1) Excluding individuals from, denying them the benefits of, or
subjecting them to discrimination under, a program or activity receiving
Federal financial assistance; or
(2) Denying or limiting individuals in their opportunity to
participate in any program or activity receiving Federal financial
assistance.
(c) The specific forms of age discrimination listed in paragraph (b)
of this section do not necessarily constitute a complete list.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.512 Definitions of ``normal operation'' and ``statutory
objective.''
For the purpose of these regulations, the terms normal operation and
statutory objective shall have the following meaning:
(a) Normal operation means the operation of a program or activity
without significant changes that would impair its ability to meet its
objectives.
(b) Statutory objective means any purpose of a program or activity
expressly stated in any Federal statute, State statute, or local statute
or ordinance adopted by an elected, general purpose legislative body.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.513 Exceptions to the rules against age discrimination; normal
operation or statutory objective of any program or activity.
A recipient is permitted to take an action, otherwise prohibited by
Sec. 18.511, if the action reasonably takes into account age as a factor
necessary to the normal operation or the achievement of any statutory
objective of a program or activity. An action reasonably takes into
account age as a factor necessary to the normal operation or the
achievement of any statutory objective of a program or activity, if:
(a) Age is used as a measure or approximation of one or more other
characteristics; and
(b) The other characteristic(s) must be measured or approximated in
order for the normal operation of the program or activity to continue,
or to achieve any statutory objective of the program or activity; and
(c) The other characteristic(s) can be reasonably measured or
approximated by the use of age; and
(d) The other characteristic(s) are impractical to measure directly
on an individual basis.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.514 Exceptions to the rules against age discrimination;
reasonable factors other than age.
A recipient is permitted to take an action otherwise prohibited by
Sec. 18.511 which is based on a factor other than age, even though that
action may have a disproportionate effect on persons of different ages.
An action may be based on a factor other than age only if the factor
bears a direct and substantial relationship to the normal operation of
the program or activity or to the achievement of a statutory objective.
(Authority: 42 U.S.C. 6101-6107)
[[Page 35]]
Sec. 18.515 Burden of proof.
The burden of proving that an age distinction or other action falls
within the exceptions outlined in Secs. 18.513 and 18.514 is on the
recipient of Federal financial assistance.
(Authority: 42 U.S.C. 6101-6107)
Sec. 18.516 Affirmative action by recipients.
Even in the absence of a finding of discrimination, a recipient may
take affirmative action to overcome the effects of conditions that
resulted in limited participation in the recipient's program or activi