Nondiscrimination in Federally Assisted Programs: Policy Interpretations

SECTION 504 OF THE REHABILITATION ACT OF 1973

POLICY INTERPRETATION NO. 3

Subject: "Program Accessibility" Requirements

Policy Interpretation: A recipient is not required to make structural modifications to its existing facilities if its services can be made effectively available to mobility impaired persons by other methods. In selecting from among other methods, recipients must give priority to those that offer handicapped and nonhandicapped persons programs and activities in the same setting. Because of the administrative impossibility of continually determining, on an up-to-date basis, whether mobility impaired individuals will be entitled to services by a given recipient, and for other reasons set forth below, the absence of mobility impaired persons residing in an area cannot be used as the test of whether programs and activities must be made accessible.

Discussion: The Department has been asked by recipients conducting modest programs (e.g., libraries in rural areas, small welfare offices, day care centers and senior citizens centers): (1) Whether they must make structural changes to their buildings to accommodate persons who are mobility impaired; and (2) whether they must make their services accessible to mobility impaired persons even if no such persons are known to live in their service area.

The Section 504 regulation was carefully written to require "program accessibility" not "building accessibility," thus allowing recipients flexibility in selecting the means of compliance. For example, they may arrange for the delivery of their services at alternative sites that are accessible or use aides or deliver services to persons at their homes. The regulation does not require that all existing facilities or every part of an existing facility be made accessible; structural changes are not necessary if other methods are effective in making the recipient's services available to mobility impaired persons. For example, a library building in a rural area with one room and an entrance with several steps can make its services accessible in several ways. It may construct a simple wooden ramp quickly and at relatively low cost. Mobility impaired persons may be provided access to the library's services through a bookmobile or by special messenger service or clerical aid or any other method that makes the resources of the library "readily accessible." However, recipients are required to give priority to methods that offer handicapped and nonhandicapped persons programs and activities in the same setting.

There is an additional option for recipients that have fewer than 15 employees and that provide health, welfare, or other social services. If such a recipient finds, after consulting with a handicapped person seeking services, that only a significant alteration to its existing facilities will make its program accessible, the recipient may refer the handicapped person to another provider of the same services that is accessible. The referring recipient has the obligation to determine that the other provider is accessible and is willing to provide the services.

The Section 504 regulation does not condition the requirement of "program accessibility" upon handicapped persons residing in the recipient's service area. Such a condition would be administratively unworkable. It would require the establishment of arbitrary geographic boundaries for each recipient's service area, the identification of all handicapped persons in that area and periodic surveys to determine whether handicapped persons have moved into or out of the service area. It would also ignore the needs of those persons who temporarily become mobility impaired or those mobility impaired persons who visit a service area. Moreover, mobility impaired persons may decide not to settle in a community because its services are not accessible.

The Department concludes, as it did when the section 504 regulation was adopted, that because the "standard (for program accessibility) is flexible" the regulation "does not allow for waivers" (See "Authority" section below).

Coverage: This policy interpretation applies to any public or private institution, person, or other entity that receives or benefits from HEW financial assistance. For further information, see definition of "recipient" at 45 CFR section 84.3(f).

Authority: Regulation issued under section 504 of the Rehabilitation Act of 1973, 45 CFR §84.22 and appendix A.

Section 84.22:

(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 requirements of paragraph (a) of this section through such means as redesign of equipment, reassignment of classes or other services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of health, welfare, or other social services at alternate accessible sites, alteration of existing facilities and construction of new facilities in conformance with the requirements of §84.23, or any other methods that result in making 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 achieving compliance with paragraph (a) of this section. In choosing among available methods for meeting the requirement of paragraph (a) of this section, a recipient shall give priority to those methods that offer programs and activities to handicapped persons in the most integrated setting appropriate.

(c) Small health, welfare, or other social service providers. If a recipient with fewer than 15 employees that provides health, welfare, or other social services 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 handicapped person to other providers of those services that are accessible.

Appendix A—Section-by-section Analysis, Subpart C—Program Accessibility.

Several commenters expressed concern about the feasibility of compliance with the program accessibility standard. The Secretary believes that the standard is flexible enough to permit recipients to devise ways to make their programs accessible short of extremely expensive or impractical physical changes in facilities. Accordingly, the section does not allow for waivers. The Department is ready at all times to provide technical assistance to recipients in meeting their program accessibility responsibilities. For this purpose, the Department is establishing a special technical assistance unit. Recipients are encouraged to call upon the unit staff for advice and guidance both on structural modifications and on other ways of meeting the program accessibility requirements. . . .(Emphasis added.)

Further, it is the Department's belief, after consultation with experts in the field, that outside ramps to buildings can be constructed quickly and at a relatively low cost. Therefore, it will be expected that such structural additions will be made promptly***. (Emphasis added.)