Office for Civil Rights; Amending the Regulations Governing Nondiscrimination on the Basis of Race, Color, National Origin, Handicap, Sex, and Age To Conform to the Civil Rights Restoration Act of 1987, 24314-24322 [05-9033]

Agencies

• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 70, Number 88 (Monday, May 9, 2005)]
[Rules and Regulations]
[Pages 24314-24322]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-9033]


=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Parts 80, 84, 86, 90, and 91

RIN 0991-AB10


Office for Civil Rights; Amending the Regulations Governing 
Nondiscrimination on the Basis of Race, Color, National Origin, 
Handicap, Sex, and Age To Conform to the Civil Rights Restoration Act 
of 1987

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Secretary amends the Department of Health and Human 
Services regulations implementing Title VI of the Civil Rights Act of 
1964, Section 504 of the Rehabilitation Act of 1973, Title IX of the 
Education Amendments of 1972, and the Age Discrimination Act of 1975 to 
conform with certain statutory amendments made by the Civil Rights 
Restoration Act of 1987 (CRRA). The principal conforming amendment is 
to add definitions of ``program or activity'' or ``program'' that 
correspond to the statutory definitions enacted under the CRRA.

DATES: These regulations are effective June 8, 2005.

FOR FURTHER INFORMATION CONTACT: Peggy A. Schmidt, (202) 619-1279; TDD 
1-800-619-3257.

SUPPLEMENTARY INFORMATION: On October 26, 2000, the Department of 
Health and Human Services (Department or HHS) published a notice of 
proposed rulemaking (NPRM) in the Federal Register (65 FR 64194) 
proposing to amend its civil rights regulations to conform to certain 
provisions of the Civil Rights Restoration Act of 1987 (Pub. L. 100-
259)(CRRA), regarding the scope of coverage under civil rights statutes 
administered by the Department. These statutes include Title VI of the 
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, et seq. (Title 
VI); Title IX of the Education Amendments of 1972, as amended, 20 
U.S.C. 1681, et seq. (Title IX); Section 504 of the Rehabilitation Act 
of 1973, as amended, 29 U.S.C. 794 (Section 504); and the Age 
Discrimination Act of 1975, as amended, 42 U.S.C. 6101, et seq. (Age 
Discrimination Act). Title VI prohibits discrimination on the basis of 
race, color, and national origin in all programs or activities that 
receive Federal financial assistance; Title IX prohibits discrimination 
on the basis of sex in education programs or activities that receive 
Federal financial assistance; Section 504 prohibits discrimination on

[[Page 24315]]

the basis of disability in all programs or activities that receive 
Federal financial assistance; and the Age Discrimination Act prohibits 
discrimination on the basis of age in all programs or activities that 
receive Federal financial assistance.
    The principal conforming change amends each of these regulations to 
add a definition of ``program or activity'' or ``program'' that adopts 
the statutory definition of ``program or activity'' or ``program'' 
enacted as part of the CRRA. We believe that adding this statutory 
definition to the regulatory language is the best way to avoid 
confusion on the part of recipients, beneficiaries, and other 
interested parties about the scope of civil rights coverage.
    The Department's civil rights regulations, when originally issued 
and implemented, were interpreted by the Department to mean that 
acceptance of Federal assistance by an entity resulted in broad 
institutional coverage. In Grove City College v. Bell, 465 U.S. 555, 
571-72 (1984)(Grove City College), the Supreme Court held, in a Title 
IX case, that the provision of Federal student financial assistance to 
a college resulted in Federal jurisdiction to ensure Title IX 
compliance in the specific program receiving the assistance, i.e., the 
student financial aid office, but that the Federal student financial 
assistance would not provide jurisdiction over the entire institution. 
Following the Supreme Court's decision in Grove City College, the 
Department changed its interpretation, but not the language, of the 
governing regulations to be consistent with the Court's restrictive, 
``program specific'' definition of ``program or activity'' or 
``program.'' Because Title IX was patterned after Title VI, Grove City 
College significantly narrowed the coverage of Title VI and two other 
statutes based on it: The Age Discrimination Act and Section 504. See 
S. Rep. No. 100-64, at 2-3, 11-16, reprinted in 1988 U.S.C.C.A.N. at 3-
5, 13-18 (1987).
    Then, in 1988, the CRRA was enacted to ``restore the prior 
consistent and long-standing executive branch interpretation and broad, 
institution-wide application of those laws as previously 
administered.'' 20 U.S.C. 1687 note 1. Congress enacted the CRRA in 
order to remedy what it perceived to be a serious narrowing by the 
Supreme Court of a longstanding administrative interpretation of the 
coverage of the regulations. At that time, the Department reinstated 
its broad interpretation to be consistent with the CRRA, again without 
changing the language of the regulations. It was and remains the 
Department's consistent interpretation that--with regard to the 
differences between the interpretation of the regulations given by the 
Supreme Court in Grove City College and the language of the CRRA--the 
CRRA, which took effect upon enactment, superseded the Grove City 
College decision and, therefore, the regulations must be read in 
conformity with the CRRA in all their applications.
    This interpretation reflects the understanding of Congress, as 
expressed in the legislative history of the CRRA, that the statutory 
definition of ``program or activity'' or ``program'' would take effect 
immediately, by its own force, without the need for Federal agencies to 
amend their existing regulations. See S. Rep. No. 100-64, at 32, 
reprinted in 1988 U.S.C.C.A.N. at 34. The legislative history also 
evidences congressional concern about the Department's immediate need 
to address complaints and findings of discrimination in federally 
assisted schools under the CRRA definition of ``program or activity,'' 
and includes examples demonstrating why the CRRA was ``urgently'' 
needed. See S. Rep. No. 100-64, at 11-16, reprinted in 1988 
U.S.C.C.A.N. at 13-18.
    The regulatory amendments would address an issue recently raised by 
the Court of Appeals for the Third Circuit in Cureton v. NCAA, 198 F.3d 
107, 115-16 (1999) (Cureton). That court determined that, because the 
Department did not amend its Title VI regulation after the enactment of 
the CRRA, application of the Department's Title VI regulation to 
disparate impact discrimination claims is ``program specific'' (i.e., 
limited to specific programs in an institution affected by the Federal 
funds), rather than institution-wide (i.e., applicable to all of the 
operations of the institution regardless of the use of the Federal 
funds). The Department disagrees with the Cureton decision for the 
reasons described in this preamble. That decision would thwart clearly 
expressed congressional intent.
    Nevertheless, the regulatory changes incorporate definitions of 
``program or activity'' or ``program'' that correspond to those enacted 
under the CRRA and thereby remove any doubt that the regulations apply 
institution-wide to both disparate impact discrimination and disparate 
treatment discrimination. (``Disparate treatment'' refers to policies 
or practices that treat individuals differently based on their race, 
color, national origin, sex, disability, or age, as applicable. 
Disparate treatment is generally barred by the civil rights statutes 
and regulations. ``Disparate impact'' refers to criteria or methods of 
administration that have a significant disparate effect on individuals 
based on race, color, national origin, sex, disability, or age, as 
applicable. Those criteria or practices may constitute impermissible 
discrimination based on legal standards that include consideration of 
their necessity.)
    The statutory definition, which is now incorporated into the 
regulations, addresses four broad categories of recipients: (1) State 
or local governmental entities; (2) colleges, universities, other 
postsecondary educational institutions, public systems of higher 
education, local educational agencies, systems of vocational education, 
and other school systems; (3) private entities, such as corporations, 
partnerships, and sole proprietorships, including those whose principal 
business is providing education, health care, housing, social services, 
or parks and recreation; and (4) entities that are established by a 
combination of two or more of the first three types of entities.
    Under the first part of the definition, if State and local 
governmental entities receive financial assistance from the Department, 
the ``program or activity'' or ``program'' in which discrimination is 
prohibited includes all of the operations of any State or local 
department or agency to which the Federal assistance is extended. For 
example, if the Department provides financial assistance to a State 
health agency, all of the agency's operations are subject to the 
nondiscrimination requirements of the regulations. In addition, 
``program or activity'' or ``program'' includes all of the operations 
of the entity of a State or local government that distributes the 
Federal assistance to another State or local governmental agency or 
department and all of the operations of the State or local governmental 
entity to which the financial assistance is extended.
    Under the second part of the definition of ``program or activity'' 
or ``program,'' if colleges, universities, other postsecondary 
institutions, public systems of higher education, local educational 
agencies, systems of vocational education, or other school systems 
receive financial assistance from the Department, all of their 
operations are subject to the nondiscrimination requirements of the 
regulations. For example, if a college or university receives Federal 
financial assistance from the Department to support medical research, 
all of the operations of the college or university are covered, not 
solely the operations of the component performing the medical research.
    Under the third part of the definition, in the case of private 
entities not already

[[Page 24316]]

listed under the second part of the definition, if the Federally 
assisted entity or organization is principally engaged in the business 
of education, health care, housing, social services, or parks and 
recreation, then the entire corporation, partnership, or other private 
organization or sole proprietorship is the covered ``program or 
activity'' or ``program.'' For example, if a private hospital receives 
financial assistance from the Department, it will be covered on an 
institution-wide basis under this portion of the definition of 
``program or activity'' or ``program'' because it is an entity 
principally engaged in the business of providing health care. All of 
its operations are covered by the nondiscrimination requirements of the 
regulations.
    Also under the third part of the definition, if a private entity is 
not principally engaged in the business of education, health care, 
housing, social services, or parks and recreation, and the Department 
extends financial assistance to the private entity ``as a whole,'' all 
of the private entity's operations at all of its locations would be 
covered. If the Department were to extend general assistance, that is, 
assistance that is not designated for a particular purpose, to this 
type of corporation or other private entity, that would be considered 
financial assistance to the private entity ``as a whole.'' In other 
instances in which the Department extends financial assistance to this 
type of entity, the coverage would be limited to the entire plant or 
other comparable geographically separate facility to which assistance 
is extended.
    Under the fourth part of the definition, if an entity of a type not 
already covered by one of the first three parts of the definition is 
established by two or more of the entities listed under the first three 
parts of the definition, then all of the operations of that new entity 
are covered.
    The regulatory changes also modify or delete some sections of the 
Department regulations that have become superfluous following the CRRA 
enactment, to conform with the CRRA definitions of ``program or 
activity'' or ``program.'' These regulatory changes do not change the 
requirements of the existing regulations. This is consistent with the 
approach taken by other Federal agencies in the Title IX common rule 
NPRM, for example, in which it was noted that regulatory language in 
the Department of Education's Title IX regulations made superfluous by 
the enactment of the CRRA was omitted in that proposed rule (64 FR 
58568, 58571). The Title IX, Title VI, and Section 504 regulations of 
the Department of Education and HHS are substantially similar because 
both were derived from the original Department of Health, Education and 
Welfare regulation.
    The Department's Title IX regulations, promulgated in 1975, defined 
``recipient'' as an entity ``to whom Federal financial assistance is 
extended directly or through another recipient and which operates an 
education program or activity which receives or benefits from such 
assistance.'' 45 CFR 86.2(h). At that time, the words ``or benefits 
from'' were necessary to clarify that all of the operations of a 
university or other educational institution that receives Federal 
financial assistance--not just the particular programs receiving 
financial assistance--are covered by Title IX's nondiscrimination 
requirements. As previously discussed, this interpretation was rejected 
by the Supreme Court in 1984 in Grove City College, which held that 
Federal student financial aid established Title IX jurisdiction only 
over the financial aid program, not the entire institution. However, 
Congress's 1988 enactment of the CRRA counteracted this decision by 
defining ``program or activity'' and ``program'' to provide expressly 
that Title IX covers all educational programs of a recipient 
institution. Because of this statutory change, the words ``or benefits 
from'' and similar phrases are no longer necessary as a regulatory 
matter, and we deleted them from the Title IX regulation. For the same 
reason, we deleted the words ``or benefits from'' and similar language 
from the Department's Section 504 and Age Discrimination Act 
regulations. These deletions do not affect the reach of Title IX, 
Section 504, or the Age Discrimination Act.
    The existing Title VI regulation of the Department of Health and 
Human Services, promulgated in 1964 by the Department of Health, 
Education, and Welfare in 29 FR 16298 and 29 FR 16988 and in 1965 in 30 
FR 16988, includes an assurance requirement for institutions in Sec.  
80.4(d)(2) that has created confusion with regard to the scope of 
``program or activity'' and ``program'' under Title VI. One example is 
the previously referenced decision in Cureton. The current provision 
states, in part: ``The assurance * * * shall be applicable to the 
entire institution unless the applicant establishes, to the 
satisfaction of the responsible Department official, 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 * * *.'' 
45 CFR 80.4(d)(2). We have deleted that portion of the assurance that 
begins with the word ``unless'' to avoid any further confusion. As 
previously stated, it was appropriate to apply the CRRA statutory 
definition of ``program or activity'' to the regulations. For the same 
reasons, we have deleted portions of the illustrations in Sec.  80.5(c) 
and (e), since they could create similar confusion. Specifically, in 
Sec.  80.5(c), which states that with regard to prohibited 
discrimination in university graduate research, training, 
demonstration, or other grants, the prohibition extends to the entire 
university, we deleted the language that states that ``unless it 
satisfies the responsible Department official that practices with 
respect to other parts or programs of the university will not 
interfere, directly or indirectly, with fulfillment of the assurance 
required with respect to the graduate school.'' Similarly, in Sec.  
80.5(e), we have deleted the portion of the illustration that states: 
``In other construction grants the assurances required will be adapted 
to the nature of the activities to be conducted in the facilities for 
construction of which the grants have been authorized by Congress.'' 
These deletions would not affect the reach of Title VI.
    In addition, we deleted references to ``program'' or ``program or 
activity'' in the regulations that do not refer to the CRRA broad 
definition of those phrases, in order to eliminate potential confusion 
in the use of these terms and to continue the longstanding Department 
interpretation of the statutes and regulations. For example, in the 
Title VI regulation Sec.  80.2 refers to ``Federal assisted programs 
and activities listed in Appendix A to this part.'' Appendix A is a 
list of Federal financial assistance triggering coverage under the 
civil rights laws. ``Federal assisted programs and activities'' as used 
in Sec.  80.2 clearly refers to Federal programs of assistance. We have 
deleted ``assisted programs and activities'' in this subsection and 
substituted ``financial assistance.'' We have made comparable 
conforming changes in our Title VI, Section 504, Title IX and Age 
Discrimination Act regulations, including both the government-wide 
coordinating Age Discrimination Act regulation and the HHS-specific Age 
Discrimination Act regulation. For example, in some instances, we 
deleted ``program'' or ``program or activity'' and substituted 
``Federal financial assistance,'' or ``aids, benefits or services.'' 
These substitutions are not intended to change

[[Page 24317]]

the scope or substance of the regulations. They are intended only to 
remove any confusion that might result from the adoption of the 
proposed definitions of ``program or activity'' or ``program.'' In 
other instances, we changed ``programs and activities'' to ``programs 
or activities'' to conform the regulations to the phrase used in the 
CRRA--when it is used in the broad manner defined in the CRRA. We did 
not modify the term ``activity'' when it appears separately from the 
phrase ``program or activity'' and is used in a manner unrelated to the 
CRRA phrase ``program or activity.'' These changes are not intended to 
change the scope or substance of the regulations, but to remove any 
confusion that might result from the proposed definitions.
    These final regulations use the plural terms ``programs'' and 
``programs or activities'' to refer generally to multiple programs or 
activities operated by multiple recipients. In other instances, the 
singular terms ``program'' or ``program or activity'' are used. Because 
the singular may be interpreted to encompass the plural, these 
regulations typically use the singular even though in certain cases the 
Department may fund a recipient that operates more than one program or 
activity that receives Federal financial assistance (such as when an 
individual recipient corporation has multiple plants, each of which is 
a separate program or activity). In addition, similar regulations of 
other Federal agencies may differ in the use of the singular or plural 
forms of these terms. Use of the singular or plural forms of these 
terms should not be interpreted to imply any legal difference in the 
intended scope of coverage.
    It is important to note that these changes do not in any way alter 
the requirement of the CRRA that a proposed or effectuated fund 
termination be limited to the particular program or programs ``or part 
thereof'' that discriminates or, as appropriate, to all of the programs 
that are infected by the discriminatory practices. See S. Rep. No. 100-
64, at 20, reprinted in 1988 U.S.C.C.A.N. at 22 (``The [CRRA] defines 
`program' in the same manner as `program or activity,' and leaves 
intact the `or part thereof' pinpointing language.'').
    We replaced the current definition of ``program'' in the Title VI 
regulation in 45 CFR 80.13 with the definition of ``program or 
activity'' and ``program.'' We added the definition of ``program or 
activity'' and ``program'' to the Title IX regulation in 45 CFR 86.2. 
We added the definition of ``program or activity'' to the Section 504 
regulation in 45 CFR 84.3, the government-wide Age Discrimination Act 
regulation in 45 CFR 90.4, and the HHS-specific Age Discrimination Act 
regulation in 45 CFR 91.4. The changes merely incorporate statutory 
language and do not alter the Department's consistent position that the 
regulations must be read in conformity with the CRRA. Conforming 
changes to the nonregulatory guidance in Appendix B of Part 80 and 
Appendix A of Part 84 will be published in the Federal Register in a 
separate notice. Nothing in these changes affects coverage under the 
Federal employment nondiscrimination statutes, including Title VII of 
the Civil Rights Act of 1964, Title I of the Americans with 
Disabilities Act, and the Age Discrimination in Employment Act.
    Except for minor editorial and technical revisions, there are no 
differences between the NPRM and these final regulations.

Analysis of Comments and Changes

    In the NPRM, we invited comments on the proposed regulations. The 
Department received three comments. One commenter suggested that the 
Department take the opportunity to revise Part 1 of Appendix A of Part 
80, the regulation implementing Title VI of the Civil Rights Act of 
1964. Part 1 lists Federal financial assistance to States. The 
commenter suggested a change to one of the citations in that list to 
address what the commenter viewed as an incorrect reference. The 
Department has not adopted the suggestion because it departs from the 
focus of our proposed changes, to amend the regulations to conform to 
the CRRA. Two other commenters advanced the view that the Department 
should not amend the regulations at this time because they believed 
amendment would be untimely due to a case then-pending before the 
United States Supreme Court (Alexander v. Sandoval, 532 U.S. 275 
(2001)). Sandoval did not, however, address the focus of this 
rulemaking--revising the regulations to conform them to the added 
definition of ``program or activity'' or ``program.'' Rather, Sandoval 
addressed a different issue--whether there is an implied private right 
of action to enforce disparate-impact regulations promulgated under 
Section 602 of Title VI and concluded that there was not such a right. 
The Department has decided to proceed with the amendment of its 
regulations because we believe it is important to conform the 
regulations to the civil rights statutes as amended by the CRRA. We 
are, however, mindful of the Supreme Court's statements in Sandoval 
that call the validity of the Title VI disparate-impact regulations 
into question.\1\
---------------------------------------------------------------------------

    \1\ See Sandoval, 532 U.S. at 286, 286n.6 (``[W]e assume for 
purposes of this decision that Sec.  602 confers the authority to 
promulgate disparate-impact regulations''; ``[w]e cannot help 
observing, however, how strange it is to say that disparate-impact 
regulations are `inspired by, at the service of, and inseparably 
intertwined with' Sec.  601 * * * when Sec.  601 permits the very 
behavior that the regulations forbid.'').
---------------------------------------------------------------------------

    We have also reviewed the regulations, in consultation with the 
Department of Justice, since the publication of the NPRM and have made 
minor editorial and technical changes.

Collection of Information Requirements

    These regulations do not contain any information collection 
requirements subject to the Paperwork Reduction Act of 1995.

Regulatory Impact Analysis

    We have examined the impacts of this proposed rule as required by 
Executive Order 12866, the Unfunded Mandates Reform Act of 1995, and 
the Regulatory Flexibility Act. Executive Order 12866 directs agencies 
to assess all costs and benefits of available regulatory alternatives 
and, when regulation is necessary, to select regulatory approaches that 
maximize net benefits, including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity. A 
regulatory impact analysis (RIA) must be prepared for major rules with 
economically significant effects of $100 million or more annually. We 
have determined that there probably will be no cost impacts because 
this regulatory action implements statutory amendments and longstanding 
Department policy. Recently the Court of Appeals for the Third Circuit 
interpreted existing regulations inconsistently with the language of 
the CRRA and our existing practices. The Department disagrees with that 
decision. However, these regulations would clarify the Department's 
policy and practice in light of that decision, and would do that only a 
short time after the court decision, thereby ensuring continuity in 
that policy and practice and avoiding changes in the behavior of 
recipients within the Third Circuit that could occur if Federal civil 
rights jurisdiction were changed. Therefore, it is possible that there 
will be no costs associated with the regulations. Since we believe that 
this rule would have no significant effect on program expenditures, we 
do not consider this to be a major rule. Accordingly, we have not 
prepared an RIA.

[[Page 24318]]

    The Unfunded Mandates Reform Act of 1995 also requires that 
agencies perform an assessment of anticipated costs and benefits before 
proposing any rule that may result in expenditures, in any given year 
by State, local, or tribal governments, in the aggregate, or by the 
private sector, of $100 million. See 2 U.S.C. 1532. These amendments 
make technical changes to existing regulations that enforce statutory 
prohibitions on discrimination on the basis of race, color, national 
origin, age, sex, or disability. Therefore, these amendments will not 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year, and they will not significantly or uniquely affect small 
governments. They will not have a significant economic impact on the 
operations of a substantial number of small providers of health and 
human services. The rule implements statutory amendments and 
longstanding Department policy.
    We have reviewed this rule under the threshold criteria of 
Executive Order 13132, Federalism. We have determined that it does not 
significantly affect the rights, roles and responsibilities of States.
    In accordance with the provisions of Executive Order 12866, this 
regulation was reviewed by the Office of Management and Budget.

List of Subjects

45 CFR Part 80

    Civil rights, Discrimination.

45 CFR Part 84

    Blind, Civil rights, Discrimination, Handicapped, Individuals with 
Disabilities.

45 CFR Part 86

    Civil rights, Sex discrimination.

45 CFR Part 90 and 91

    Aged, Civil rights, Discrimination.

    Dated: February 27, 2004.
Richard M. Campanelli,
Director, Office for Civil Rights.

    Dated: April 1, 2004.
Tommy G. Thompson,
Secretary.

    Editorial note: This document was received by the Office of the 
Federal Register on May 2, 2005.


0
For the reasons discussed in the preamble, the Secretary amends parts 
80, 84, 86, 90, and 91 of title 45 of the Code of Federal Regulations 
as follows:

PART 80--NONDISCRIMINATION UNDER PROGRAMS RECEIVING FEDERAL 
ASSISTANCE THROUGH THE DEPARTMENT OF HEALTH AND HUMAN SERVICES 
EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964

0
1. The authority citation for part 80 continues to read as follows:

    Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1.


Sec.  80.2  [Amended]

0
2. Section 80.2 is amended in the first sentence by removing the words 
``program for which'' and adding, in their place, ``program to which'' 
and removing the words ``assisted programs and activities'' and adding, 
in their place, ``financial assistance''.


Sec.  80.3  [Amended]

0
3. Section 80.3(d) is amended by removing the words ``the benefits of a 
program'', and adding, in their place, the word ``benefits''.

0
4. Section 80.4 is amended as follows--
0
A. Removing the words ``to carry out a program'' in the first sentence 
of paragraph (a)(1);
0
B. Removing the words ``except a program'' and adding, in their place, 
the words ``except an application'' in the first sentence of paragraph 
(a)(1);
0
C. Removing the words ``for each program'' and the words ``in the 
program'' in the fifth sentence of paragraph (a)(1);
0
D. Removing the words ``State programs'' and adding, in their place, 
the words ``Federal financial assistance'' in the heading of paragraph 
(b);
0
E. Removing the words ``to carry out a program involving'' and adding, 
in their place, the word ``for'' in paragraph (b); and
0
F. Revising paragraph (d)(2).
    The revision of paragraph (d)(2) reads as follows:


Sec.  80.4  Assurances required.

* * * * *
    (d) * * *
    (2) The assurance required with respect to an institution of higher 
education, hospital, or any other institution, insofar as the assurance 
relates to the institution's practices with respect to admission or 
other treatment of individuals as students, patients, or clients of the 
institution or to the opportunity to participate in the provision of 
services or other benefits to such individuals, shall be applicable to 
the entire institution.
* * * * *

0
5. Section 80.5 is amended as follows--
0
A. Removing the words ``under the program'' in the second sentence in 
paragraph (a).
0
B. Revising paragraph (c); and
0
C. Removing the last sentence of paragraph (e).
    The revision of paragraph (c) reads as follows:


Sec.  80.5  Illustrative application.

* * * * *
    (c) In a research, training, demonstration, or other grant to a 
university for activities to be conducted in a graduate school, 
discrimination in the admission and treatment of students in the 
graduate school is prohibited, and the prohibition extends to the 
entire university.
* * * * *


Sec.  80.6  [Amended]

0
6. Section 80.6(b) is amended by removing the words ``of any program 
under'' in the last sentence and adding, in their place, the word 
``in''.


Sec.  80.9  [Amended]

0
7. Section 80.9(e) is amended by removing the word ``programs'' in the 
first sentence and adding, in its place, the words ``Federal statutes, 
authorities, or other means by which Federal financial assistance is 
extended,''.

0
8. Section 80.13 is amended by removing the words ``for any program,'' 
and ``under any such program'' in paragraph (i); removing the words 
``for the purpose of carrying out a program'' in paragraph (j); and 
revising paragraph (g) and revising the authority citation following 
the section to read as follows:


Sec.  80.13  Definitions.

* * * * *
    (g) The term program or activity and the term program mean all of 
the operations of--
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
Federal financial assistance and each such department or agency (and 
each other State or local government entity) to which the assistance is 
extended, in the case of assistance to a State or local government; 
(2)(i) A college, university, or other postsecondary institution, or a 
public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;

[[Page 24319]]

    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (g)(1), (g)(2), or (g)(3) of this 
section; any part of which is extended Federal financial assistance.
* * * * *
(Secs. 602, 606, Civil Rights Act of 1964, (42 U.S.C. 2000d-1, 
2000d-4a))

0
9. Appendix A to part 80 is amended by revising the heading of part 1 
and the heading of part 2 to read as follows:

APPENDIX A TO PART 80--FEDERAL FINANCIAL ASSISTANCE TO WHICH THESE 
REGULATIONS APPLY



PART 1--ASSISTANCE OTHER THAN CONTINUING ASSISTANCE TO STATES

* * * * *



PART 2--CONTINUING ASSISTANCE TO STATES

* * * * *

0
10. The heading to part 84 is revised to read as follows:

PART 84--NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

0
11. The authority citation for part 84 continues to read as follows:

    Authority: 20 U.S.C. 1405; 29 U.S.C. 794; 42 U.S.C. 290dd-2; 21 
U.S.C. 1174.


Sec.  84.2  [Amended]

0
12. Section 84.2 is amended by removing the word ``each'' the second 
time it appears and adding, in its place, the word ``the''; and by 
removing the words ``or benefits from''.

0
13. Section 84.3 is amended by redesignating paragraphs (k) and (l) as 
paragraphs (l) and (m), respectively; and adding a new paragraph (k) 
and adding an authority citation following this section to read as 
follows:


Sec.  84.3  Definitions.

* * * * *
    (k) Program or activity means all of the operations of--
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
Federal financial assistance and each such department or agency (and 
each other State or local government entity) to which the assistance is 
extended, in the case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (k)(1), (2), or (3) of this section; 
any part of which is extended Federal financial assistance.
* * * * *
(29 U.S.C. 794(b))


Sec.  84.4  [Amended]

0
14. Section 84.4 is amended by--
0
A. Removing the words ``or benefits from'' in paragraphs (a) and 
(b)(5)(i);
0
B. Removing the words ``programs or activities'' whenever they appear 
in paragraph (b)(3), and adding, in their place, the words ``aids, 
benefits, or services'';
0
C. Removing the words ``or benefiting from'' in paragraph (b)(6); and
0
D. In paragraph (c) removing the word ``Programs'' in the heading and 
adding, in its place, the words ``Aids, benefits, or services''; 
removing the words ``from the benefits of a program'' and adding, in 
their place, the words ``from aids, benefits, or services'', and 
removing the words ``from a program'' and adding, in their place, the 
words ``from aids, benefits, or services''.


Sec. Sec.  84.4, 84.6, 84.12, 84.32, 84.33, 84.36  [Amended]

0
15. Remove the word ``program'' and add, in its place, the words 
``program or activity'' in the following sections:
    A. Section 84.4(b)(1)(v);
    B. Section 84.4(b)(4)(ii);
    C. Section 84.6(a)(3), whenever it appears;
    D. Section 84.12(a), (c) introductory text, and (c)(1);
    E. Section 84.32 introductory text;
    F. Section 84.33(a); and
    G. Section 84.36, in the first sentence.


Sec.  84.5  [Amended]

0
16. Section 84.5(a) is amended in the first sentence by removing the 
words ``for a program or activity'' and by removing the words ``the 
program'' and adding, in their place, the words ``the program or 
activity''.


Sec.  84.8  [Amended]

0
17. Section 84.8(a) is amended by removing the words ``programs and 
activities'' in the second sentence and adding, in their place, the 
words ``programs or activities''.


Sec.  84.11  [Amended]

0
18. Section 84.11 is amended by--
0
A. Removing the words ``programs assisted'' and adding, in their place, 
the words ``programs or activities assisted'' in paragraph (a)(2);
0
B. Removing the word ``programs'' and revising ``apprenticeship'' to 
read ``apprenticeships'' in the last sentence of paragraph (a)(4).
0
C. Removing the word ``programs'' and adding the words ``those that 
are'' before ``social or recreational'' in paragraph (b)(8).

Subpart C--Accessibility

0
19. The heading of Subpart C is amended by removing the word 
``PROGRAM''.


Sec.  84.22  [Amended]

0
20. Section 84.22 is amended as follows:
0
A. In paragraph (a) by removing the words ``Program accessibility'' in 
the heading and adding, in their place, the word ``Accessibility'' and 
by removing the words ``each program or activity to which this part 
applies so that the program or activity, when viewed in its entirety,'' 
in the first sentence and

[[Page 24320]]

adding in their place, the words ``its program or activity so that when 
each part is viewed in its entirety, it'';
0
B. In paragraph (b) by removing the words ``offer programs and 
activities to'' in the last sentence and adding, in their place, the 
word ``serve''; and
0
C. In paragraph (e)(3) by removing the words ``program accessibility'' 
and adding, in their place, the words ``full accessibility under 
paragraph (a)''.


Sec.  84.31  [Amended]

0
21. Section 84.31 is amended by removing the words ``or benefit from'' 
whenever they appear; and by removing the words ``programs and 
activities'' and adding, in their place, the words ``programs or 
activities''.


Sec.  84.33  [Amended]

0
22. Section 84.33 is amended by--
0
A. Removing the words ``individualized education program'' and adding, 
in their place, the words ``Individualized Education Program'' in 
paragraph (b)(2);
0
B. Removing the words ``in or refer such person to a program other than 
the one that it operates'' and adding, in their place, the words ``or 
refer such a person for aids, benefits, or services other than those 
that it operates or provides'' in the first sentence of paragraph 
(b)(3);
0
C. Removing the words ``in or refers such person to a program not 
operated'' in the second sentence of paragraph (c)(1), and adding, in 
their place, the words ``or refers such person for aids, benefits, or 
services not operated or provided'';
0
D. Removing the words ``of the program'' in the second sentence of 
paragraph (c)(1) and adding, in their place, the words ``of the aids, 
benefits, or services'';
0
E. Removing the words ``in or refers such person to a program not 
operated'' in paragraph (c)(2), and adding, in their place, the words 
``or refers such person for aids, benefits, or services not operated or 
provided'';
0
F. Removing the words ``from the program'' in paragraph (c)(2), and 
adding, in their place, the words ``from the aids, benefits, or 
services'';
0
G. Removing the words ``in the program'' in paragraph (c)(2), and 
adding, in their place, the words ``in the aids, benefits, or 
services'';
0
H. Removing the words ``If placement in a public or private residential 
program'' and adding, in their place, the words ``If a public or 
private residential placement'' in paragraph (c)(3); and removing the 
words ``the program'', and adding, in their place, the words ``the 
placement''; and
0
I. Removing the words ``such a program'' in the last sentence of 
paragraph (c)(4), and adding, in their place, the words ``a free 
appropriate public education''.


Sec.  84.35  [Amended]

0
23. Section 84.35(a) is amended by removing the words ``program shall'' 
and adding, in their place, the words ``program or activity shall'' and 
by removing the word ``a'' before the word ``regular'' and by removing 
the word ``program'' before the word ``and''.


Sec.  84.37  [Amended]

0
24. Section 84.37(c)(1) is amended by removing the words ``programs and 
activities'' in the first sentence and adding, in their place, the 
words ``aids, benefits, or services''; and by removing the words ``in 
these activities'' in the last sentence.


Sec.  84.38  [Amended]

0
25. Section 84.38 is amended by--
0
A. Removing the word ``programs'' in the section heading;
0
B. Removing the words ``operates a'' and adding, in their place, the 
word ``provides'';
0
C. Removing the words ``program or activity or an'' after the word 
``care'' and adding, in their place, the word ``or'';
0
D. Removing the words `` program or activity'' after the word 
``education'';
0
E. Removing the words ``from the program or activity'';
0
F. Revising the word ``aid'' to read ``aids''; and
0
G. Removing the words ``under the program or activity''.


Sec.  84.39  [Amended]

0
26. Section 84.39 is amended by--
0
A. Removing the word ``programs'' in the section heading;
0
B. Removing the words ``operates a'' and adding, in their place, the 
word ``provides'' in paragraph (a);
0
C. Removing the word ``program'' after the word ``education'' in 
paragraph (a);
0
D. Removing the words ``from such program'' in paragraph (a);
0
E. Removing the words ``the recipient's program'' in paragraph (a), and 
adding, in their place, the words ``that recipient's program or 
activity''; and
0
F. Removing the words ``operates special education programs shall 
operate such programs'' in paragraph (c), and adding, in their place, 
the words ``provides special education shall do so''.


Sec.  84.41  [Amended]

0
27. Section 84.41 is amended by removing the words ``programs and 
activities'' whenever they appear in the section and adding, in their 
place, the words ``programs or activities''; and by removing the words 
``or benefit from'' whenever they appear in the section.


Sec.  84.43  [Amended]

0
28. Section 84.43 is amended by--
0
A. Removing the words ``program or activity'' in paragraph (a) and 
adding, in their place, the words ``aids, benefits, or services''; and
0
B. Removing the words ``programs and activities'' in paragraph (d), and 
adding, in their place, the words ``program or activity''.


Sec.  84.44  [Amended]

0
29. Section 84.44 is amended by--
0
A. Removing the words ``program of'' in the second sentence of 
paragraph (a);
0
B. Removing the words ``in its program'' in paragraph (c); and
0
C. Removing the words ``under the education program or activity 
operated by the recipient'' in paragraph (d)(1).


Sec.  84.47  [Amended]

0
30. Section 84.47 is amended by removing the words ``programs and 
activities'' in paragraph (a)(1), and adding, in their place, the words 
``aids, benefits, or services''.


Sec.  84.51  [Amended]

0
31. Section 84.51 is amended by removing the words ``or benefit from'' 
whenever they appear in the section; and by removing the word ``and'' 
before the word ``activities'' and adding, in its place, the word 
``or''.


Sec.  84.54  [Amended]

0
32. Section 84.54 is amended by removing the words ``operates or 
supervises a program or activity'' and adding, in their place, the 
words ``provides aids, benefits, or services'', and removing ``Sec.  
84.3(k)(2)'' and adding, in its place, ``Sec.  84.3(l)(2)''.


Sec.  84.55  [Amended]

0
33. Section 84.55 is amended by removing the word ``programs'' in the 
first sentence in paragraph (a) and adding in its place, the words 
``programs or activities''.

PART 86--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION 
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

0
34. The heading for part 86 is revised to read as set forth above.
0
35. Section 86.2 is amended by --
0
A. Redesignating paragraphs (h) through (r) as paragraphs (i) through 
(s), respectively;

[[Page 24321]]

0
B. Adding a new paragraph (h) and revising the authority citation 
following the section;
0
C. Removing the words ``or benefits from'' from newly designated 
paragraph (i); and
0
D. Removing from newly designated paragraph (k) the words ``paragraph 
(k), (l), (m), or (n) of this section'' and adding, in their place, the 
words ``paragraph (l), (m), (n), or (o) of this section''.
    New paragraph (h) reads as follows:


Sec.  86.2  Definitions

* * * * *
    (h) Program or activity and program means all of the operations 
of--
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such a State or local government that 
distributes Federal financial assistance and each such department or 
agency (and each other State or local government entity) to which the 
assistance is extended, in the case of assistance to a State or local 
government;
    (2)(i) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (h)(1), (2), or (3) of this section; 
any part of which is extended Federal financial assistance.
* * * * *
(Secs. 901, 902, 908, Education Amendments of 1972, 20 U.S.C. 1681, 
1682, 1687)
* * * * *


Sec.  86.4  [Amended]

0
36. Section 86.4 is amended by removing the word ``each'' and adding, 
in its place, the word ``the'' in the first sentence of paragraph (a).


Sec.  86.6  [Amended]

0
37. Section 86.6 is amended by removing the words ``or benefits from'' 
in paragraph (c).


Sec.  86.11  [Amended]

0
38. Section 86.11 is amended by removing the word ``each'' and adding, 
in its place, the word ``the''; and by removing the words ``or benefits 
from''.
0
39. The titles of Subparts D and E are amended by removing the word 
``AND'' and adding, in its place, the word ``OR''.


Sec.  86.31  [Amended]

0
40. Section 86.31 is amended by --
0
A. Removing the word ``and'' in the section heading, and adding, in its 
place, the word ``or'';
0
B. Removing the words ``or benefits from'' in the first sentence of 
paragraph (a); and
0
C. Removing the words ``Programs not operated'' in the heading of 
paragraph (d), and adding, in their place, the words ``Aid, benefits, 
or services not provided''.


Sec.  86.40  [Amended]

0
41. Section 86.40 is amended by removing the words ``in the normal 
education program or activity'' in paragraph (b)(2); and by removing 
the words ``instructional program in the separate program'' in 
paragraph (b)(3) and adding, in their place, the words ``separate 
portion''.


Sec.  86.51  [Amended]

0
42. Section 86.51 is amended by removing the words ``or benefits from'' 
in paragraph (a)(1); and by removing the words ``social or recreational 
programs'' and adding, in their place, the words ``those that are 
social or recreational'' in paragraph (b)(9).

PART 90--NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

0
43. The authority citation for part 90 is revised to read as follows:

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101 et seq.


Sec.  90.1  [Amended]

0
44. Section 90.1 is amended by removing the words ``programs and 
activities'' in the last sentence and adding, in their place, the words 
``programs or activities''.


Sec.  90.3  [Amended]

0
45. Section 90.3 is amended by removing the word ``and'' in the section 
heading and adding, in its place, the word ``or''.

0
46. Section 90.4 is amended by adding in alphabetical order a new 
definition of ``Program or activity'' and adding an authority citation 
following the section to read as follows:


Sec.  90.4  How are the terms in these regulations defined?

* * * * *
    Program or activity means all of the operations of--
    (a)(1) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (2) The entity of such State or local government that distributes 
Federal financial assistance and each such department or agency (and 
each other State or local government entity) to which the assistance is 
extended, in the case of assistance to a State or local government;
    (b)(1) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (2) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (c)(1) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (i) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (ii) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (2) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (d) Any other entity which is established by two or more of the 
entities described in paragraph (a), (b), or (c) of this definition; 
any part of which is extended Federal financial assistance.
* * * * *
(42 U.S.C. 6107)


Sec.  90.34  [Amended]

0
47. Section 90.34 is amended by removing the word ``programs'' and 
adding, in its place, the words ``programs or activities'' whenever 
they appear in the section.

[[Page 24322]]

Sec.  90.42  [Amended]

0
48. Section 90.42 is amended by removing the words ``programs and 
activities'' in the first sentence of paragraph (a) and adding, in 
their place, the words ``programs or activities''.


Sec.  90.43  [Amended]

0
49. Section 90.43 is amended by removing the word ``program'' in the 
last sentence of paragraph (c)(4).


Sec.  90.47  [Amended]

0
50. Section 90.47 is amended by removing the word ``Federal'' in the 
first sentence of paragraph (c)(2).


Sec.  90.48  [Amended]

0
51. Section 90.48 is amended by removing the words ``program or 
activity'' in the last sentence and adding, in their place, the words 
``Federal financial assistance''.


Sec.  90.49  [Amended]

0
52. Section 90.49 is amended by removing the word ``program'' whenever 
it appears in paragraph (c) and adding, in its place, the words 
``program or activity''.

PART 91--NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM HHS

0
53. The heading for part 91 is revised to read as set forth above.

0
54. The authority citation for part 91 continues to read as follows:

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101 et seq. (45 CFR part 90).


Sec.  91.1  [Amended]

0
55. Section 91.1 is amended by removing the words ``programs and 
activities'' in the last sentence and adding, in their place, the words 
``programs or activities''.


Sec.  91.2  [Amended]

0
56. Section 91.2 is amended by removing the words ``programs and 
activities'' in the last sentence and adding, in their place, the words 
``programs or activities''.


Sec.  91.3  [Amended]

0
57. Section 91.3 is amended by removing the word ``programs'' in the 
section heading and adding, in its place, the words ``programs or 
activities''; and removing the words ``or benefits from'' in paragraph 
(a).

0
58. Section 91.4 is amended by adding in alphabetical order a new 
definition of ``Program or activity'' and adding an authority citation 
following the section to read as follows:


Sec.  91.4  Definition of terms used in these regulations.

* * * * *
    Program or activity means all of the operations of--
    (a)(1) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (2) The entity of such State or local government that distributes 
Federal financial assistance and each such department or agency (and 
each other State or local government entity) to which the assistance is 
extended, in the case of assistance to a State or local government;
    (b)(1) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (2) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (c)(1) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (i) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (ii) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (2) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (d) Any other entity which is established by two or more of the 
entities described in paragraph (a), (b), or (c) of this definition; 
any part of which is extended Federal financial assistance.
* * * * *
(Authority: 42 U.S.C. 6107)


Sec.  91.17  [Amended]

0
59. Section 91.17 is amended by removing the word ``program'' whenever 
it appears and adding, in its place, the words ``program or activity''.


Sec.  91.18  [Amended]

0
60. Section 91.18 is amended by removing the word ``program'' and 
adding, in its place, the words ``program or activity''.


Sec.  91.31  [Amended]

0
61. Section 91.31 is amended by removing the words ``programs and 
activities'' in the first sentence and adding, in their place, the 
words ``programs or activities''.


Sec.  91.32  [Amended]

0
62. Section 91.32 is amended by removing the word ``program'' in 
paragraph (b).


Sec.  91.44  [Amended]

0
63. Section 91.44 is amended by removing the word ``program'' in 
paragraph (a)(2).


Sec.  91.46  [Amended]

0
64. Section 91.46 is amended by removing the words ``program and 
activity'' in the first sentence of paragraph (b) and adding, in their 
place, the words ``program or activity''; and by removing the word 
``Federal'' in the first sentence of paragraph (c)(2).


Sec.  91.49  [Amended]

0
65. Section 91.49 is amended by removing the words ``program or 
activity'' in paragraph (b)(2) and adding, in their place, the words 
``Federal financial assistance''.

[FR Doc. 05-9033 Filed 5-6-05; 8:45 am]
BILLING CODE 4153-01-P