[Federal Register: November 7, 2006 (Volume 71, Number 215)]
[Rules and Regulations]
[Page 65053-65061]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07no06-10]
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LEGAL SERVICES CORPORATION
45 CFR Part 1624
Prohibition Against Discrimination on the Basis of Disability
AGENCY: Legal Services Corporation.
ACTION: Final rule.
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SUMMARY: This Final Rule amends the Legal Services Corporation's
regulation on prohibitions against discrimination on the basis of
disability. These changes are intended to improve the utility of the
regulation for LSC, its grantees and other interested persons, by
updating the terminology used throughout the regulation, to add a
reference to compliance with the Americans with Disabilities Act and by
adding language to the enforcement provision setting forth LSC policy
regarding investigation of complaints of violation of this regulation.
DATES: This Final Rule is effective on December 7, 2006.
FOR FURTHER INFORMATION CONTACT: Mattie Cohan, Senior Assistant General
Counsel, Office of Legal Affairs, Legal Services Corporation, 3333 K
Street, NW., Washington DC 20007; 202-295-1624 (ph); 202-337-6519
(fax); mcohan@lsc.gov.
SUPPLEMENTARY INFORMATION:
Background
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 706), as
amended, prohibits discrimination on the basis of handicap by
recipients of Federal assistance. As recipients of federal assistance,
Legal Services Corporation (LSC) grant recipients are subject to the
non-discrimination requirements of Section 504. At the same time, while
the Corporation is not obligated to enforce Section 504 of the
Rehabilitation Act (since it is not an agency, department or
instrumentality of the Federal government), it does have the authority
to ensure that LSC grant recipients comply with its provisions. LSC
chose to exercise this authority and adopted the Part 1624 regulation
implementing the non-discrimination requirements in Section 504 in
1979. The regulation has not been amended since that time.
On October 29, 2005, the LSC Board of Directors directed that LSC
initiate a rulemaking to consider revisions to LSC's regulation at 45
CFR part 1624. At the Board's further direction, prior to the
development of this Notice of Proposed Rulemaking (``NPRM''), LSC
convened a Rulemaking Workshop \1\ to consider revisions to this Part.
The intention of the rulemaking proceeding was intended to provide the
opportunity for an unlimited and thorough review of the regulation with
the intent of updating and improving the rule as appropriate.
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\1\ Under LSC's Rulemaking Protocol, a Rulemaking Workshop is a
meeting at which the participants (which may include LSC Board
members, staff, grantees and other interested parties) ``hold open
discussions designed to elicit information about problems or
concerns with the regulation (or certain aspects thereof) and
provide an opportunity for sharing ideas regarding how to address
those issues. * * * [A] Workshop is not intended to develop detailed
alternatives or to obtain consensus on regulatory proposals.'' 67 FR
69762, 69763 (November 19, 2002).
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LSC convened a Rulemaking Workshop on December 13, 2005 to discuss
Part 1624. The following persons participated in the Workshop: John
``Chip'' Gray, South Brooklyn Legal Services; John Herrion, United
Spinal Association; Linda Perle, Center for Law and Social Policy; Don
Saunders, National Legal Aid and Defender Association; Helaine Barnett,
LSC President (welcoming remarks only); Karen Sarjeant, LSC Vice
President for Programs and Compliance; Charles Jeffress, LSC Chief
Administrative Officer; Mattie Condray, LSC Office of Legal Affairs;
Curtis Goffe, LSC Office of Compliance and Enforcement; Tillie Lacayo,
LSC Office of Program Performance; Mark Freedman, LSC
[[Page 65054]]
Office of Legal Affairs; and Treefa Aziz, LSC Office of Government
Relations and Public Affairs.
The discussion was wide-ranging. The highlights of the discussion
are summarized as follows. There was a general assessment that grantees
appear to be in compliance with the regulation and that LSC does not
receive many complaints of non-compliance. It was noted that most of
the complaints that do come to LSC are from grantee staff and are
related to employment discrimination, rather than accessibility of
services for applicants or clients with disabilities. LSC's staff
practice is to refer such complainants to the appropriate Federal,
state or local agency. At the same time, it was noted that the language
of the regulation could be updated in places and that there are new
assistive technologies which could be referenced in the regulation.
The participants discussed the fact that LSC's enforcement
expertise and resources are limited and that claimants, with the
passage of the Americans with Disabilities Act (``ADA''), have recourse
to other agencies and private actions for the pursuit of redress for
discrimination on the basis of disability. The notion that the
regulation could be amended to reflect these facts was raised. In
addition, the participants also discussed other avenues of raising
awareness of accessibility issues, such as the issuance of guidance
from LSC in the form of a Program Letter, focusing on accessibility in
program visits and in competition, better sharing of best practices and
emphasis on opportunities through LSC's Technology Initiative Grant
Program.
LSC Management made a presentation to the Operations and
Regulations Committee of the LSC Board of Directors on the Rulemaking
Workshop at its meeting on January 27, 2006. The Committee then voted
to recommend that the Board of Directors instruct Management to
continue the rulemaking and develop an NPRM, proposing such changes as
deemed appropriate. On January 28, 2006, the Board of Directors voted
to accept the recommendation of the Operations and Regulations
Committee. A Draft NPRM was then presented to the Operations and
Regulations Committee at its meeting on April 28, 2006. The Committee
voted to recommend that the Board of Directors approve the NPRM for
publication. The following day the Board of Directors voted to accept
the Committee's recommendation and directed LSC to issue an NPRM for
public comment. The NPRM was subsequently published on May 12, 2006 (71
FR 27654).
LSC received five timely and one late comment on the NPRM. All of
the comments have been carefully considered. The comments are discussed
in detail below in the section-by-section analysis.
Summary of Proposed Changes
LSC is adopting only relatively minor changes to the regulation,
but LSC believes that these changes will improve the utility of the
regulation for LSC, its grantees and other interested persons. First,
LSC is updating the nomenclature used throughout the regulation to
refer to ``person with a disability'' or ``persons with disabilities''
instead of ``handicapped person(s).'' This change is not intended to
create any substantive change in meaning, but rather is intended to
reflect a more current terminology. Second, LSC is adding a reference
to compliance with the Americans with Disabilities Act to the
regulation. This change is discussed in greater detail in the section-
by-section analysis section under the discussion of proposed section
1624.1. Third, LSC is adding language to the enforcement provision
setting forth LSC policy regarding investigation of complaints of
violation of this regulation. This change is discussed in greater
detail in the section-by-section analysis section under the discussion
of proposed section 1624.8. LSC is also proposing to make a number of
technical and grammatical corrections to the regulation.
In addition, LSC proposed to eliminate the current section 1624.7
of the regulation on self-evaluation. This section required legal
services programs to evaluate by January 1, 1980, their facilities,
practices and policies to determine the extent to which they complied
with the requirements of this Part. This section does not contain a
continuing requirement for self-evaluation and, as such, is now
obsolete.
Two commenters specifically opposed this proposal. One commenter
notes that DOJ considers self-evaluation to be an ongoing requirement
under section 504, while the other commenter notes that many recipients
may never have conducted any self-evaluation. Both of the commenters
recommend adoption of ongoing self-evaluation requirements.
Although DOJ may consider ongoing self-evaluation to part of the
Section 504 obligations, DOJ's regulations at 28 CFR part 41 do not
contain any explicit self-evaluation requirement. Moreover, the absence
of a specific self-evaluation requirement does not necessarily mean
that recipients do not engage in any self-evaluative process.
Recipients are required to agree to be in compliance with the
regulations (including this Part) and to so certify with each new grant
cycle.\2\ This gives both recipients and LSC sufficient opportunity for
an annual look at recipients' efforts in this area. In addition, if LSC
started to see an increase in complaints or an increase in the
incidence of disability-based discrimination issues, LSC could ask
recipients to conduct reviews as appropriate. Finally, LSC is concerned
about adding new undue administrative burdens on recipients that become
compliance responsibilities. For example, if LSC adopted a self-
evaluation requirement, a recipient otherwise fully compliant but which
misses reporting a self-evaluation would be in violation even if the
recipient was otherwise a model program with respect to disability
related issues. Accordingly, LSC is eliminating the obsolete self-
evaluation requirement and declines to adopt an ongoing self-evaluation
requirement.
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\2\ This is also the reason why LSC does not believe that the
lack of the originally required initial self-evaluation by ``newer''
recipients is problematic. For these recipients, unlike those
recipients existing prior to the adopt of the regulation, Part 1624
has always been part of the regulatory landscape and compliance a
necessity from the beginning of their operations.
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Section-by-Section Analysis
Section 1624.1--Purpose
LSC proposed changing the terms ``handicapped persons'' as they
appear in this section to ``persons with disabilities.'' In addition,
LSC proposed adding language to make reference to the ADA. LSC received
several comments supporting the proposed changes to this section and
none in opposition. Accordingly, LSC is adopting the changes as
proposed.
With respect to the new language being added making reference to
the ADA, LSC notes that the provision states that requirements of this
Part apply in addition to any responsibilities legal services programs
may have under applicable requirements of the Americans with
Disabilities Act and applicable implementing regulations of the
Department of Justice and the Equal Employment Opportunity Commission.
The new language is neither intended to impose any new obligations on
grantees with respect to LSC-related regulatory compliance matters, nor
assume LSC authority for enforcing the ADA that LSC does not possess.
Section 1624.2--Application
LSC did not propose any changes to this section. LSC received no
suggestions for change to this section.
[[Page 65055]]
Accordingly, LSC is not making any changes to this section.
Section 1624.3--Definitions
LSC proposed changing the term ``handicapped person'' to ``person
with a disability'' in section 1624.3(c)(1). Similarly, LSC proposed to
change the term ``qualified handicapped person'' in section 1624.3(d)
to ``qualified person with a disability.'' LSC received several
comments in support and no comments in opposition to these proposed
changes. Accordingly, LSC is adopting them as proposed. In neither case
is the change intended to create any substantive change to the
regulation, but rather to reflect updated and preferred nomenclature.
LSC also proposed to add a definition of the term ``auxiliary aids
and/or other assistive technology.'' Under the existing section 1624.4,
grantees with more than fifteen employees have been required to provide
appropriate ``auxiliary aids'' when necessary to clients and applicants
to make services accessible. Although the current regulation uses the
term ``auxiliary aids,'' it has not contained a formal definition of
the term in the definition section. Rather, current section 1624.4
provides that for the purposes of that section, ``auxiliary aids
include, but are not limited to, brailled and taped material,
interpreters, telecommunications equipment for the deaf, and other aids
for persons with impaired vision and hearing.'' Although this informal
definition of ``auxiliary aids'' appears to be limited to aids for
persons with impaired vision or hearing, the provision of the
regulation which requires their use calls for auxiliary aids for
persons ``with impaired sensory, manual or speaking skills,'' which is
broader than simply vision or hearing impairments. LSC believes that
this discrepancy should be rectified. In addition, although the term
``auxiliary aids'' is not currently used in the section on employment
(1624.6), a similar concept appears there. Under section 1624.6(e),
grantees are required to make reasonable accommodations for otherwise
qualified employees and job applicants with disabilities. The
regulation specifies that, among other things, ``reasonable
accommodations'' include (but are not limited to) ``the modification of
equipment or devices, the provision of readers or interpreters and
other similar actions.''
Rather than continue to have these similar concepts set forth in
different parts of the regulation with different terminology, LSC
proposed to use the single term ``auxiliary aids and/or other assistive
technology'' in both sections and to add a definition of that term to
the definitions section. Since the original adoption of the regulation
in 1979 there have been significant advances in technology which are
available to persons with disabilities to help them access and benefit
from legal services programs' services. The proposed definition is
based on a definition of ``assistive technologies'' found in the
Individuals with Disabilities Education Act, 20 U.S.C. 1400, et seq.,
and is intended to broadly refer to the range of aids or technologies
which grantees can make available to applicants, clients and employees
with disabilities, as appropriate and necessary, to comply with the
requirements of this Part. LSC wishes to note that the list of
technologies included in the definition is specifically intended to be
illustrative and not exhaustive.
One commenter suggested that LSC failed to define the term
``auxiliary aids and/or other assistive technologies'' and proposed
that LSC use the definition of ``auxiliary aids and services'' found in
Title III of the ADA. Although this commenter was addressing a
different section, because the comment is specifically about defining a
term used throughout the regulation, LSC is responding to this comment
here. LSC notes at the outset that LSC did in fact propose a definition
for the term ``auxiliary aids and other assistive technologies.'' The
proposed definition is discussed at length above.
Turning to the suggestion that LSC adopt the definition of the
``auxiliary aids and services'' in Title III of the ADA, LSC notes that
the definitions section in Title III of the ADA (Section 301) does not
contain a definition of the term ``auxiliary aids and services.''
However, LSC assumes that the commenter was referring to a provision of
the Department of Justice regulations implementing Title III discussing
auxiliary aids and services. That provision states:
The term ``auxiliary aids and services'' includes--
1. Qualified interpreters, notetakers, computer-aided
transcription services, written materials, telephone handset
amplifiers, assistive listening devices, assistive listening
systems, telephones compatible with hearing aids, closed caption
decoders, open and closed captioning, telecommunications devices for
people who are deaf (TDDs), videotext displays, or other effective
methods of making aurally delivered materials available to
individuals with hearing impairments;
2. Qualified readers, taped texts, audio recordings, Brailled
materials, large print materials, or other effective methods of
making visually delivered materials available to individuals with
visual impairments;
3. Acquisition or modification of equipment or devices; and,
4. Other similar services and actions.
28 CFR 36.303.
LSC believes that the definition it proposed for the term
``auxiliary aids and/or other assistive technologies'' is in no way
inconsistent with the DOJ regulation quoted above. As such, and in
light of the fact that no other commenters opposed the LSC proposed
definition, LSC believes that its proposed definition is appropriate
for LSC purposes. Accordingly, LSC adopts the definition of ``auxiliary
aids and/or other assistive technologies'' as proposed.
The Equal Employment Opportunity Commission (EEOC) suggested that
LSC cross-reference the definitions of ``reasonable accommodation,''
``undue hardship'' and ``direct threat'' found in the EEOC's
regulations at 29 CFR 1630.2 for the purposes of those terms' use in
the proposed employment section, 1624.6. LSC agrees that the EEOC's
definitions of these terms are appropriate for use in the context of
the proposed employment section. However, rather than simply cross-
reference the definitions in the text of the regulation, LSC believes
it will be more useful for LSC and recipients for LSC to reprint those
definitions in this preamble. This will provide LSC staff and
recipients a ready reference without having to have a full copy of the
EEOC's regulations at hand.
The EEOC's definitions of the terms ``reasonable accommodation,''
``undue hardship'' and ``direct threat'' are, respectively:
Reasonable accommodation. (1) The term reasonable accommodation
means:
(i) Modifications or adjustments to a job application process that
enable a qualified applicant with a disability to be considered for the
position such qualified applicant desires; or
(ii) Modifications or adjustments to the work environment, or to
the manner or circumstances under which the position held or desired is
customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable a covered entity's
employee with a disability to enjoy equal benefits and privileges of
employment as are enjoyed by its other similarly situated employees
without disabilities.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible
to and
[[Page 65056]]
usable by individuals with disabilities; and
(ii) Job restructuring; part-time or modified work schedules;
reassignment to a vacant position; acquisition or modifications of
equipment or devices; appropriate adjustment or modifications of
examinations, training materials, or policies; the provision of
qualified readers or interpreters; and other similar accommodations for
individuals with disabilities.
(3) To determine the appropriate reasonable accommodation it may be
necessary for the covered entity to initiate an informal, interactive
process with the qualified individual with a disability in need of the
accommodation. This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations
that could overcome those limitations.
Undue hardship--(1) In general. Undue hardship means, with respect
to the provision of an accommodation, significant difficulty or expense
incurred by a covered entity, when considered in light of the factors
set forth in paragraph (p)(2) of this section.
(2) Factors to be considered. In determining whether an
accommodation would impose an undue hardship on a covered entity,
factors to be considered include:
(i) The nature and net cost of the accommodation needed under this
part, taking into consideration the availability of tax credits and
deductions, and/or outside funding;
(ii) The overall financial resources of the facility or facilities
involved in the provision of the reasonable accommodation, the number
of persons employed at such facility, and the effect on expenses and
resources;
(iii) The overall financial resources of the covered entity, the
overall size of the business of the covered entity with respect to the
number of its employees, and the number, type and location of its
facilities;
(iv) The type of operation or operations of the covered entity,
including the composition, structure and functions of the workforce of
such entity, and the geographic separateness and administrative or
fiscal relationship of the facility or facilities in question to the
covered entity; and
(v) The impact of the accommodation upon the operation of the
facility, including the impact on the ability of other employees to
perform their duties and the impact on the facility's ability to
conduct business.
Direct threat means a significant risk of substantial harm to the
health or safety of the individual or others that cannot be eliminated
or reduced by reasonable accommodation. The determination that an
individual poses a ``direct threat'' shall be based on an
individualized assessment of the individual's present ability to safely
perform the essential functions of the job. This assessment shall be
based on a reasonable medical judgment that relies on the most current
medical knowledge and/or on the best available objective evidence. In
determining whether an individual would pose a direct threat, the
factors to be considered include:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
29 CFR 1630.2(o), (p), and (r). LSC will refer to these definitions
in interpreting and enforcing the provisions of proposed 1624.6.
Section 1624.4--Discrimination Prohibited
LSC proposed two notable amendments to this section. First, in each
instance in which the term ``handicapped person'' or ``handicapped
persons'' appears, LSC proposed to replace it with ``person with a
disability'' or ``persons with disabilities'' as grammatically
appropriate. As noted above, LSC intended no substantive change, but
rather to reflect updated and preferred nomenclature. LSC also proposed
to use the term ``auxiliary aids and/or other assistive technologies''
instead of the term ``auxiliary aids'' in section 1624.4(d)(1) and (2)
and to delete the text appearing at 1624.4(d)(3). As discussed above,
LSC believes that users of the regulation will be better served by
having a formal definition of the term in the definitions section of
the regulation than an informal definition elsewhere. In addition, LSC
believes that expanding the term to include ``other assistive
technologies,'' combined with the proposed definition, will better
reflect the range of systems and devices existing in the market that
grantees may choose from to help make their services accessible to
persons with disabilities.
LSC received several comments supporting the proposed changes to
this section. LSC also received one comment suggesting that this
section as proposed is inconsistent with the ADA and ``misstates'' the
law. At the outset, LSC believes that it is important to keep in mind
that LSC's regulations are not implementing the ADA. Although the ADA
may well impose additional requirements on recipients, LSC does not
wish to place more of its own burdens on recipients. LSC does not
intend to create new or additional requirements for which recipients
will be responsible to LSC and which LSC will be responsible for
enforcing.
Turning to the suggestion that the portion of the proposed
regulation imposing the requirement that recipients with fifteen or
more employees must provide auxiliary aids when necessary ``misstates''
the law, LSC notes that this provision dates to the original adoption
of Part 1624 and that LSC is not proposing any substantive change to
this particular requirement. Rather than misstating the ADA, this
provision reflects LSC's policy determination from 1979:
First, that a program with fifteen employees will have a
sufficiently large budget to enable it to obtain access to such aids
without jeopardizing the program's other activities; and second,
that a program of that size will serve a sufficiently large
population to have a significant number of clients who could benefit
by the availability of the aids.
44 FR 22482, 22484 (April 16, 1979); see also, 44 FR 55175, 55176
(September 25, 1979). The reason why LSC made a distinction between
recipients with fifteen employees and those with fewer employees
continues to make sense today. Further, the current and proposed LSC
requirement does not impose any responsibility which contradicts
responsibilities recipients have under the ADA (i.e., complying with
the LSC requirement does not preclude compliance with ADA
requirements). In fact, a recipient's compliance with a more stringent
requirement will only serve to ensure that the recipient is in
compliance with part 1624. As such, LSC does not believe it is
necessary or desirable to change LSC's regulation in this matter.
LSC also received one comment suggesting that LSC substitute the
term ``auxiliary aids and/or other assistive technologies'' for
``auxiliary aids'' in proposed 1624.4(d)(2). LSC agrees with this
comment and adopts this suggestion.
Section 1624.5--Accessibility of Legal Services
LSC proposed two notable amendments to this section. First, in each
instance in which the term ``handicapped person'' or ``handicapped
persons'' appears, LSC proposed to replace it with ``person with a
disability'' or ``persons with disabilities'' as grammatically
appropriate. As noted above, LSC intended no substantive change, but
rather to reflect updated and preferred
[[Page 65057]]
nomenclature. Second, LSC proposed to replace the reference to ``the
appropriate Regional Office'' in section 1624.5(c) with ``LSC.'' At the
time Part 1624 was originally adopted LSC had Regional Offices, but it
no longer does. All LSC business is conducted out of its Washington, DC
offices. As such, the statement required by section 1624.5(c) can no
longer be submitted to a ``Regional Office'' and such statements are
simply submitted to LSC. The regulation should reflect this fact. LSC
received several comments supporting and no comments opposing these
changes. Accordingly, LSC adopts them as proposed.
LSC received one comment suggesting that LSC add a subsection (e)
to require recipients to ``make reasonable modifications in policies,
practices and procedures'' to avoid engaging in discrimination on the
basis of disability. LSC agrees with the commenter that recipients
should not have policies, practices or procedures which have the effect
of discriminating on the basis of disability and expects that part of a
recipient's obligation to be in compliance with Part 1624 is to ensure
that it does not have policies, practices or procedures which result in
discrimination on the basis of disability. However, LSC is not
convinced that it is necessary to add such an express provision to the
regulation. Proposed sections 1624.4, 1624.5 and 1624.6 collectively
set forth the substantive requirements that recipients not engage in
discrimination on the basis of disability. If a recipient had policies,
practices or procedures which had the effect of discriminating on the
basis of disability, the recipient would be in violation of one or more
of the sections referenced above. Put another way, for a recipient to
be in compliance with the substantive requirements of Part 1624, the
recipient cannot have policies, practices or procedures which result in
or have the effect of discriminating on the basis of disability. As
such, the imposition of an additional provision specifically and
separately requiring recipients to modify policies, practices and
procedures to avoid discrimination would not appear to add anything of
substantive value to the regulation.
Section 1624.6--Employment
LSC proposed two notable amendments to this section. First, in each
instance in which the term ``handicapped person'' or ``handicapped
persons'' appears, LSC proposed to replace it with ``person with a
disability'' or ``persons with disabilities'' as grammatically
appropriate. As noted above, LSC intended no substantive change, but
merely the use of updated and preferred nomenclature. LSC also proposed
to use the term ``auxiliary aids and/or other assistive technologies''
instead of the words ``readers or interpreters'' in section 1626(e)(1).
As discussed above, LSC believes that users of the regulation will be
better served by using a standardized and formally defined term. LSC
believes that using the term ``auxiliary aids and/or other assistive
technologies'' in this section, combined with the proposed definition
of that term, will better reflect the range of systems and devices
existing in the market that grantees may choose from to make reasonable
accommodations in employment for otherwise qualified job applicants and
employees with disabilities. LSC received several comments supporting
and no comments opposing these changes. Accordingly, LSC adopts them as
proposed.
LSC also received a comment from the EEOC suggesting that the
proposed provision appears to be modeled after a 1980 DOJ regulation
and suggesting, as an alternative, that LSC add a cross-reference to
the EEOC's regulations and should embody language contained in the 1994
joint EEOC/DOJ rule regarding coordination between Section 504 and the
ADA. Proposed section 1624.6 is essentially the same as the existing
section 1624.6, with the only changes proposed being the nomenclature
changes and use of the term ``auxiliary aids and/or other assistive
technologies'' as discussed above. The existing section predates the
1980 DOJ regulation and is actually modeled on the then-Department of
Health, Education and Welfare (HEW) guidelines, with some
modifications. See 44 FR at 22484; 44 FR at 55177. LSC chose the HEW
guidelines as a model because the Executive Order obligating agencies
to adopt regulations implementing Section 504 required them to use the
HEW guidelines as the model. Although LSC was not obligated to comply
with the Executive Order, LSC determined that using the HEW guidelines
as a model was appropriate with respect to its voluntary adoption of
Section 504 implementing regulations.
LSC believes the current LSC requirements continue to be
appropriate. LSC notes also that the current DOJ rules implementing
Section 504 with respect to employment (28 CFR 41.52-41.55) are
essentially the same as LSC's current and proposed section 1624.6. The
section that the EEOC cites to (28 CFR 37.12) does not substitute for
the provisions cited above. Rather, that section addresses coordination
between DOJ and EEOC in procedures for coordinating investigation of
complaints. LSC is addressing enforcement issues in proposed section
1624.7. Moreover, LSC is not convinced it is necessary, given LSC's
enforcement policy, to explicitly incorporate the ADA standards into
this regulation and, further, to do so only in the context of
complaints involving claims of discrimination in employment. Rather, to
the extent that LSC might receive and investigate any complaint without
deferring to the investigation of another agency, LSC would look to
this Part and, as necessary, the current law of Section 504 in carrying
out its duties. LSC is confident that recipients understand and
anticipate that this is the case.
Section 1624.7--Enforcement
The current regulation specifies only that LSC's enforcement
procedures at 45 CFR part 1618 shall apply to alleged violations of
this part. Under part 1618, LSC is obligated to investigate complaints
of violations of the LSC Act, appropriations acts, LSC regulations and
grant assurances and to work with grantees to resolve matters
informally when possible. Ultimately, if no informal resolution is
agreed upon, LSC's enforcement powers involve reducing or eliminating
funding generally. LSC does not have authority to represent individuals
or to go to court on their behalf to obtain ``injunctive relief''
however, as do other Federal, state and local agencies charged with ADA
and other disability-based discrimination law enforcement. Moreover,
OCE, although taking those complaints of disability-based
discrimination it receives seriously, has limited resources available
and does not generally have significant expertise in investigating
these types of claims.
In light of the above, LSC's policy when such complaints have been
filed with OCE has been to recommend that complainants pursue claims
with appropriate Federal, state or local agencies which may be in a
better position to investigate their claims and assist them in
obtaining specific relief. In cases where a claim is filed with another
agency, LSC generally defers to that investigation during its pendency
and relies upon the findings of the other agency in resolving the
complaint filed with LSC. LSC has found this policy to be efficient and
effective. Accordingly, LSC proposed to explicitly incorporate this
policy into the regulation. LSC continues to believe this action will
clarify expectations for LSC enforcement staff, grantees, and potential
claimants alike. Of course, LSC retains the discretion and authority
[[Page 65058]]
to conduct its own investigations into any claim of disability-based
discrimination grounded in this Part or the grant assurances and make
its own findings upon the conclusion of such investigation,
irrespective of whether a complaint based on the same circumstances is
pending at another agency.
One commenter stated that it agreed with the substance of the
policy and with LSC's proposal to formalize the policy by placing it in
the regulation. The commenter expressed its concern, however, that the
language proposed is ``not sufficiently clear or definitive.'' This
commenter suggested the following alternative language:
LSC will promptly refer a complainant who alleges a violation
that appears to fall within the scope of this Part to the
appropriate Federal, state or local agency or agencies with
authority to investigate discrimination on the basis of disability.
Pending completion of such agency's investigation, LSC may also
investigate the complaint. As part of the investigation, LSC may
also use such agency's findings, conclusion or information that the
other agency makes available to LSC.
LSC does not agree that the proposed alternative language is
preferable to the language LSC proposed. Elimination of the word
``generally'' in the first sentence of paragraph (b) does create more
specificity, but at the expense of necessary LSC discretion. There may
be good reason why LSC would not automatically refer a complainant to
another agency; for example, if the complainant states that he/she is
already pursuing or has pursued a complaint with another agency.
Requiring LSC to refer a complainant to another agency under those
circumstances would be unnecessary. Nor does LSC agree that elimination
of the phrase ``retains the discretion'' and the use of the word
``may'' in its place would improve the clarity or definitiveness of the
regulation. LSC prefers the language as proposed because it plainly
indicates an exercise of discretion. The word ``may'' does also imply
the exercise of discretion, but perhaps less explicitly. Since the
commenter is not suggesting the development and adoption of specific
published standards for making determinations about when LSC would
choose to directly investigate a complaint rather than defer to another
agency's investigation (which would be very difficult given the fact-
specific nature of these cases), LSC prefers to be explicit about its
discretion in this matter.
Another commenter took the opposite position, urging LSC not to
codify its current policy. This commenter suggested that LSC should
instead adopt a new policy under which LSC would commit to
investigating and processing all complaints directly without referral
or reference to any other agency's investigations. The commenter argues
that LSC's expertise in legal services makes it uniquely qualified to
do so and that LSC has better leverage to force recipients to provide
specific relief to complainants.
LSC, like any other agency with oversight responsibilities, has
limited resources available to it. Although LSC takes all complaints
about violations (of any applicable LSC requirements) seriously and
retains the discretion to fully process any complaint it receives, LSC
must and does exercise discretion in the processing of complaints
(regardless of subject matter), taking into account the specific facts
of the case and the resources available to LSC. Thus, LSC believes that
adopting any policy which expressly limits that discretion with respect
to a particular subset of complaints is inappropriate.
In this particular area, although LSC has expertise in legal
services, it is not an expert as to what constitutes discrimination on
the basis of disability. Moreover, as difficult as it may be for a
complainant to have DOJ or EEOC take an individual's case to court, LSC
is not authorized to seek court-ordered relief for a complainant at
all.\3\ In addition, there may be a local enforcement agency option or
direct legal action that would be available to a complainant--again,
assistance that LSC cannot provide. With respect to LSC's ``leverage,''
it is LSC's experience that LSC's leverage is a blunt instrument not
well suited to obtaining relief for individual complainants with these
types of complaints. LSC can impose additional grant conditions at the
time of grant renewal or put a recipient on month-to-month funding at
the end of the grant term. Both of these actions, however, are
dependent upon the recipient happening to be at the end of a grant year
or grant term (respectively) for them to potentially be effective.
During the grant term, LSC could institute suspension or termination
proceedings, but these are resource intensive and likely a
disproportionate response to all but the most egregious of violations.
At the same time, the current policy appears to have functioned well
for LSC and recipients, and as well for complainants as is practicable
within LSC's authority. LSC, accordingly, declines to adopt the
commenter's suggestion and instead adopts the language in proposed
section 1624.7 as proposed.
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\3\ To the extent that the preamble to the NPRM may have
appeared to suggest ``direct'' DOJ/EEOC enforcement authority, such
a suggestion was not intended. Rather, LSC intended to note, as the
commenter states, that DOJ and the EEOC have the authority to seek
court ordered relief.
---------------------------------------------------------------------------
LSC received one other comment on this section. This commenter
suggests that LSC: (1) Create a tracking system to flag repeat
offenders; (2) engage in increased efforts to represent individuals
with disabilities who bring allegations of violations of the ADA to the
attention of LSC, including obtaining consulting assistance and
training for OCE staff; and (3) that the language of the regulation
allow for LSC to retain for the purpose of enforcement cases at its
discretion.
LSC reiterates that it receives very few complaints and has no
reason to believe that there are ``repeat offenders'' going undetected.
Nonetheless, current OCE policy and practice already enables LSC to
identify repeat offenders (should there be any) and take action as
necessary.
With respect to the second suggestion, LSC is, as noted above,
without legal authority to represent individuals. In complaint
investigations LSC is not representing the complainant, but rather is
exercising its oversight authority over the recipient. As such, LSC can
only take limited action against the recipient (as discussed above).
Indeed, the inability of LSC to represent individual claimants and
LSC's limited ability to force a recipient to provide specific relief
to a complainant is exactly what led to the development and adoption of
the current enforcement policy which LSC has proposed to codify. In
addition, with respect to the suggestion that LSC obtain additional
training or consultant assistance, although LSC agrees that such
activities would be helpful to increase LSC's level of in-house
expertise, LSC regrets that it is faced with the reality of limited
resources. Given the infrequency of complaints received and the
existence of other investigatory agencies with greater expertise, LSC
does not believe that making a significant investment in the manner
suggested would be the most effective or efficient use of its limited
resources.
Regarding the commenter's third suggestion, LSC notes that the
language proposed does expressly reserve to LSC the discretion to
retain jurisdiction over any complaint it receives as the commenter
proposes. Therefore, LSC believes that no change or addition to the
proposed language is necessary.
[[Page 65059]]
List of Subjects in 45 CFR Part 1624
Civil rights, Grant programs--law, Individuals with disabilities,
Legal services.
For reasons set forth above, and under the authority of 42 U.S.C.
2996g(e), LSC revises 45 CFR part 1624 as follows:
PART 1624--PROHIBITION AGAINST DISCRIMINATION ON THE BASIS OF
DISABILITY
Sec.
1624.1 Purpose.
1624.2 Application.
1624.3 Definitions.
1624.4 Discrimination prohibited.
1624.5 Accessibility of legal services.
1624.6 Employment.
1624.7 Enforcement.
Authority: 49 U.S.C. 794; 42 U.S.C. 2996f(a) (1) and (3).
Sec. 1624.1 Purpose.
The purpose of this part is to assist and provide guidance to legal
services programs supported in whole or in part by Legal Services
Corporation funds in removing any impediments that may exist to the
provision of legal assistance to persons with disabilities eligible for
such assistance in accordance with section 504 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. 794 and with sections 1007(a) (1)
and (3) of the Legal Services Corporation Act, as amended, 42 U.S.C.
2996f(a) (1) and (3), with respect to the provision of services to and
employment of persons with disabilities. The requirements of this Part
apply in addition to any responsibilities legal services programs may
have under applicable requirements of the Americans with Disabilities
Act and applicable implementing regulations of the Department of
Justice and the Equal Employment Opportunity Commission.
Sec. 1624.2 Application.
This part applies to each legal services program receiving
financial assistance from the Legal Services Corporation.
Sec. 1624.3 Definitions.
As used in this part, the term:
(a) Legal services program means any recipient, as defined by Sec.
1600.1 of this chapter, or any other public or private agency,
institution, organization, or other entity, or any person to which or
to whom financial assistance is extended by the Legal Services
Corporation directly or through another agency, institution,
organization, entity or person, including any successor, assignee, or
transferee of a legal services program, but does not include the
ultimate beneficiary of legal assistance;
(b) 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;
(c)(1) Person with a disability 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 (c)(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; digestive; genitourinary; hemic
and lymphatic; skin; and endocrine; or (B) any mental or psychological
disorder, such as mental retardation, organic brain syndrome, emotional
or mental illness, and specific learning disabilities; The phrase
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, and 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 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 legal services program 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 impairments; or (C) has none of the
impairments defined in paragraph (c)(2)(i) of this section but is
treated by a legal services program as having such an impairment;
(d) Qualified person with a disability means:
(1) With respect to employment, a person with a disability who,
with reasonable accommodation, can perform the essential functions of
the job in question;
(2) with respect to other services, a person with a disability who
meets the eligibility requirements for the receipt of such services
from the legal services program.
(e) Auxiliary aids and/or other assistive technologies means any
item, piece of equipment, or product system whether acquired
commercially off the shelf, modified or customized, that is used to
increase, maintain, or improve functional capabilities of individuals
with disabilities. Auxiliary aids and/or other assistive technologies
include, but are not limited to, brailled and taped material,
interpreters, telecommunications equipment for the deaf, voice
recognition software, computer screen magnifiers, screen reader
software, wireless amplification systems, and other aids.
Sec. 1624.4 Discrimination prohibited.
(a) No qualified person with a disability shall, on the basis of
disability, be excluded from participation in, be denied the benefits
of, or otherwise be subjected to discrimination by any legal services
program, directly or through any contractual or other arrangement.
(b) A legal services program may not deny a qualified person with a
disability the opportunity to participate in any of its programs or
activities or to receive any of its services provided at a facility on
the ground that the program operates a separate or different program,
activity or facility that is specifically designed to serve persons
with disabilities.
(c) In determining the geographic site or location of a facility, a
legal services program may not make selections that have the purpose or
effect of excluding persons with disabilities from, denying them the
benefits of, or otherwise subjecting them to discrimination under any
program or activity of the legal services program.
(d)(1) A legal services program that employs a total of fifteen or
more persons, regardless of whether such persons are employed at one or
more locations, shall provide, when necessary, appropriate auxiliary
aids and/or other assistive technologies to persons with impaired
sensory, manual or speaking skills, in order to afford such persons an
equal opportunity to benefit from the legal services program's
services. A legal services program is not required to maintain such
aids at all times, provided they can be obtained on reasonable notice.
(2) The Corporation may require legal services programs with fewer
than fifteen employees to provide auxiliary aids and/or other assistive
technologies where the provision of such aids would not significantly
impair the ability of the
[[Page 65060]]
legal services program to provide its services.
(e) A legal services program shall take reasonable steps to ensure
that communications with its applicants, employees, and beneficiaries
are available to persons with impaired vision and hearing.
(f) A legal services program may not deny persons with disabilities
the opportunity to participate as members of or in the meetings or
activities of any planning or advisory board or process established by
or conducted by the legal services program, including but not limited
to meetings and activities conducted in response to the requirements of
45 CFR part 1620.
Sec. 1624.5 Accessibility of legal services.
(a) No qualified person with a disability shall, because a legal
services program's facilities are inaccessible to or unusable by
persons with disabilities, be denied the benefits of, be excluded from
participation in, or otherwise be subjected to discrimination by any
legal services program.
(b) A legal services program shall conduct its programs and
activities so that, when viewed in their entirety, they are readily
accessible to and usable by persons with disabilities. This paragraph
does not necessarily require a legal services program to make each of
its existing facilities or every part of an existing facility
accessible to and usable by persons with disabilities, or require a
legal services program to make structural changes in existing
facilities when other methods are effective in achieving compliance. In
choosing among available methods for meeting the requirements of this
paragraph, a legal services program shall give priority to those
methods that offer legal services to persons with disabilities in the
most integrated setting appropriate.
(c) A legal services program shall, to the maximum extent feasible,
ensure that new facilities that it rents or purchases are accessible to
persons with disabilities. Prior to entering into any lease or contract
for the purchase of a building, a legal services program shall submit a
statement to LSC certifying that the facilities covered by the lease or
contract will be accessible to persons with disabilities, or if the
facilities will not be accessible, a detailed description of the
efforts the program made to obtain accessible space, the reasons why
the inaccessible facility was nevertheless selected, and the specific
steps that will be taken by the legal services program to ensure that
its services are accessible to persons with disabilities who would
otherwise use that facility. After a statement certifying facility
accessibility has been submitted, additional statements need not be
resubmitted with respect to the same facility, unless substantial
changes have been made in the facility that affect its accessibility.
(d) A legal services program shall ensure that new facilities
designed or constructed for it are readily accessible to and usable by
persons with disabilities. Alterations to existing facilities shall, to
the maximum extent feasible, be designed and constructed to make the
altered facilities readily accessible to and usable by persons with
disabilities.
Sec. 1624.6 Employment.
(a) No qualified person with a disability shall, on the basis of
disability, be subjected to discrimination in employment by any legal
services program.
(b) A legal services program shall make all decisions concerning
employment under any program or activity to which this part applies in
a manner that ensures that discrimination on the basis of disability
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 disability.
(c) The prohibition against discrimination in employment applies to
the following activities:
(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 any other form 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 legal services program;
(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.
(d) A legal services program may not participate in any contractual
or other relationship with persons, agencies, organizations or other
entities such as, but not limited to, employment and referral agencies,
labor unions, organizations providing or administering fringe benefits
to employees of the legal services program, and organizations providing
training and apprenticeship programs, if the practices of such person,
agency, organization, or other entity have the effect of subjecting
qualified applicants or employees with disabilities to discrimination
prohibited by this paragraph.
(e) A legal services program shall make reasonable accommodation to
the known physical or mental limitations of an otherwise qualified
applicant or employee with a disability unless the accommodation would
impose an undue hardship on the operation of the program.
(1) For purposes of this paragraph (e), reasonable accommodation
may include:
(i) Making facilities used by employees readily accessible to and
usable by persons with disabilities; and
(ii) job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices, the provision of
auxiliary aids and/or other assistive technologies, and other similar
actions.
(2) In determining whether an accommodation would impose an undue
hardship on the operation of a legal services program, factors to be
considered include, but are not limited to, the overall size of the
legal services program with respect to number of employees, number and
type of facilities, and size of budget, and the nature and costs of the
accommodation needed.
(3) A legal services program may not deny any employment
opportunity to a qualified employee or applicant with a disability if
the basis for the denial is a need to make reasonable accommodation to
the physical or mental limitations of the employee or applicant.
(f) A legal services program may not use employment tests or
criteria that discriminate against persons with disabilities, and shall
ensure that employment tests are adapted for use by persons who have
disabilities that impair sensory, manual, or speaking skills.
(g) A legal services program may not conduct a pre-employment
medical examination or make a pre-employment inquiry as to whether an
applicant is a person with a disability or as to the nature or severity
of a disability except under the circumstances described in 45 CFR
84.14(a) through (d)(2). The
[[Page 65061]]
Corporation shall have access to relevant information obtained in
accordance with this section to permit investigations of alleged
violations of this part.
(h) A legal services program shall post in prominent places in each
of its offices a notice stating that the legal services program does
not discriminate on the basis of disability.
(i) Any recruitment materials published or used by a legal services
program shall include a statement that the legal services program does
not discriminate on the basis of disability.
Sec. 1624.7 Enforcement.
(a) The procedures described in part 1618 of these regulations
shall apply to any alleged violation of this Part by a legal services
program.
(b) When LSC receives a complaint of a violation of this part, LSC
policy is generally to refer such complainants promptly to the
appropriate Federal, state or local agencies, although LSC retains the
discretion to investigate all complaints and/or to maintain an open
complaint file during the pendency of an investigation being conducted
by such other Federal, state or local agency. LSC may use, at its
discretion, information obtained by such other agency as may be
available to LSC, including findings of such other agency of whether
discrimination on the basis of disability occurred.
Victor M. Fortuno,
Vice President and General Counsel.
[FR Doc. E6-18709 Filed 11-6-06; 8:45 am]
BILLING CODE 7050-01-P