Prohibition Against Discrimination on the Basis of Disability, 65053-65061 [E6-18709]

Agencies

• LEGAL SERVICES CORPORATION

[Federal Register Volume 71, Number 215 (Tuesday, November 7, 2006)]
[Rules and Regulations]
[Pages 65053-65061]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-18709]


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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.
---------------------------------------------------------------------------

    \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