[Federal Register Volume 65, Number 244 (Tuesday, December 19, 2000)]
[Notices]
[Pages 79368-79369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32194]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office for Civil Rights; Section 504 of the Rehabilitation Act of
1973; Notice of Exercise of Authority Under 45 CFR 84.52(d)(2)
Regarding Recipients With Fewer Than Fifteen Employees
AGENCY: Office for Civil Rights, HHS.
ACTION: Notice of exercise of authority under 45 CFR 84.52(d)(2)
regarding recipients with fewer than fifteen employees pursuant to
section 504 of the Rehabilitation Act of 1973.
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SUMMARY: Pursuant to 45 CFR 84.52(d)(2), the Director of the Office for
Civil Rights may require recipients with fewer than 15 employees to
provide auxiliary aids where the provision of such aids would not
significantly impair the ability of the recipient to provide its
benefits or services. The United States Department of Health and Human
Services (HHS) is announcing that it is exercising its authority under
45 CFR 84.52(d)(2) of the regulation implementing Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. 794(a), to require recipients
with fewer than fifteen employees to provide appropriate auxiliary aids
to persons with impaired sensory, manual, or speaking skills, where
necessary to afford such persons an equal opportunity to benefit from
their services. This is not a new requirement; Title III of the
Americans with Disabilities Act (ADA) already requires public
accommodations of all sizes to provide auxiliary aids and services to
persons with disabilities where necessary to ensure effective
communication and Title II of the ADA extends the same requirement to
state and local government entities. The vast majority of entities that
receive federal financial assistance from HHS thus are already required
to provide auxiliary aids and services to persons with disabilities
where necessary to ensure effective communication.
DATES: This guidance is effective immediately.
FOR FURTHER INFORMATION CONTACT: Sheila Foran or Ronald Copeland at the
Office for Civil Rights, Room 506F, U.S. Department of Health and Human
Services, 200 Independence Avenue, SW., Washington, D.C. 20201,
telephone 202-619-0403; TDD 1-800-537-7697. Arrangements to receive the
notice in an alternative format may be made by contacting the named
individuals.
SUPPLEMENTARY INFORMATION: The purpose of this notice is to inform
recipients of federal financial assistance from HHS that the Office for
Civil Rights (OCR) will require recipients with fewer than 15 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, and will investigate complaints against health
and social services providers with fewer than 15 employees for failure
to provide auxiliary aids to individuals with disabilities under
Section 504. Determinations of whether the provision of an auxiliary
aid or service would impose an undue burden on a small provider will be
made on a case-by-case basis. The fact that the provision of any
particular auxiliary aid would result in an undue burden does not
relieve the provider from the duty to furnish an alternative auxiliary
aid, if available, that would not result in such a burden.
OCR has concluded that, in the interest of uniformity and
consistent administration of law, Section 504's auxiliary aids
requirement should be applied to covered entities with fewer than 15
employees, as is the case under the Americans with Disabilities Act of
1990. Title III of the ADA specifies that no individual shall be
discriminated against on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages,
and accommodations of any place of public accommodation. 42 U.S.C.
12182. The term ``public accommodation'' includes professional offices
of health care providers, hospitals, pharmacies, and other service
establishments. Under Title III of the ADA, privately operated public
accommodations are obligated to provide appropriate auxiliary aids and
services, regardless of their size, where necessary to ensure effective
communication with individuals with
[[Page 79369]]
disabilities, unless they can demonstrate that taking such steps would
fundamentally alter the nature of their program, services or
activities, or would result in an undue burden. See 42 U.S.C.
12182(b)(2)(A)(iii). The ADA requires public accommodations, including
health and social service providers, to furnish appropriate auxiliary
aids to ensure effective communication with individuals with
disabilities without the imposition of a surcharge to cover the cost of
such measures.
OCR believes that exercising its authority under 45 CFR 84.52(d)(2)
is consistent with Congress' intent to ensure consistency between
Section 504 and the ADA. 42 U.S.C. 2117(b) of the Americans with
Disabilities Act addresses coordination between agencies with
enforcement authority under the ADA and Section 504 of the
Rehabilitation Act of 1973. Consistent with that provision, agencies
must ensure that administrative complaints filed under both the ADA and
Section 504 are dealt with in a manner that prevents the imposition of
inconsistent or conflicting standards for the same requirements. See,
e.g., 42 U.S.C. ss. 12117(b), 12134(b) and 12201(a). Other evidence of
Congress' desire for consistent enforcement standards can be found in
several amendments to Title V of the Rehabilitation Act of 1973. For
example, Section 102(f) of the Rehabilitation Act Amendments of 1992,
Pub. L. 102-569, incorporated the exclusions from the term ``individual
with disability'' that are set forth in the ADA. Also, Section 504 of
the Rehabilitation Act Amendments of 1992 amended the Rehabilitation
Act of 1973 by adding a new subsection to clarify that the standards
used for determining whether Section 504 has been violated in a
complaint alleging employment discrimination are the same standards
applied under the ADA.
As noted above, Title III of the ADA does not require a public
accommodation to provide auxiliary aids and services if it can
demonstrate that taking such steps would fundamentally alter the nature
of the services being offered or result in an undue burden. The undue
burden defense established under the ADA evidences that Congress
favored a case-by-case approach for determining a public
accommodation's obligation to provide auxiliary aids rather than a
broad exemption for small providers. OCR believes that requiring
recipients with fewer than 15 employees to provide auxiliary aids under
the Section 504 regulation at 45 CFR 84.52(d)(2), where the provision
of such aids would not significantly impair the ability of the
recipient to provide its benefits or services, is consistent with the
legislative scheme intended by Congress under the ADA.
Most of the entities that receive federal financial assistance from
HHS are also subject to the effective communication requirements
established under the ADA. OCR is confident that the enforcement of
Section 504's auxiliary aids requirement can be applied in a manner
that will not unduly burden small providers.
OCR will enforce Section 504 as it applies to recipients'
responsibilities under the notice through procedures provided for in
the Section 504 regulations. These procedures include complaint
investigations, compliance reviews, efforts to secure voluntary
compliance and technical assistance. OCR will always provide recipients
with a complete opportunity to come into voluntary compliance with
Section 504 prior to initiating formal enforcement proceedings, and
will provide technical assistance to help entities resolve complaints
in a collaborative fashion with OCR.
Dated: December 6, 2000.
Thomas E. Perez,
Director, Office for Civil Rights.
[FR Doc. 00-32194 Filed 12-18-00; 8:45 am]
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