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Federal Coordination and Compliance Section

[Code of Federal Regulations]
[Title 38, Volume 2, Parts 18 To End]
[Revised as of July 1, 2000]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR18]

[Page 5-47]
 
                            VETERANS' RELIEF
 
          CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS--CONTINUED
 
PART 18--NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF VETERANS AFFAIRS--EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964

                           Subpart A--General

Sec.
18.1  Purpose.
18.2  Application of this part.
18.3  Discrimination prohibited.
18.4  Assurances required.
18.6  Compliance information.
18.7  Conduct of investigations.
18.8  Procedure for effecting compliance.
18.9  Hearings.
18.10  Decisions and notices.
18.11  Judicial review.
18.12  Effect on other regulations, forms and instructions.
18.13  Definitions.

Appendix A to Subpart A to Part 18--Statutory Provisions to Which This 
          Subpart Applies
Appendix B to Subpart A to Part 18--Illustrative Applications

Subparts B-C  [Reserved]

   Subpart D--Nondiscrimination in Federally-Assisted Programs of the 
 Department of Veterans Affairs--Effectuation of Title VI of the Civil 
                           Rights Act of 1964

                           General Provisions

18.401  Purpose.
18.402  Application.
18.403  Definitions.
18.404  Discrimination prohibited.
18.405  Assurances required.
18.406  Remedial action, voluntary action and self-evaluation.
18.407  Designation of responsible employee and adoption of grievance 
          procedures.
18.408  Notice.
18.409  Administrative requirements for certain recipients.
18.410  Effect of State or local law or other requirements and effect of 
          employment opportunities.

                          Employment Practices

18.411  Discrimination prohibited.
18.412  Reasonable accommodation.
18.413  Employment criteria.
18.414  Preemployment inquiries.

                          Program Accessibility

18.421  Discrimination prohibited.
18.422  Existing facilities.
18.423  New construction.

               Elementary, Secondary, and Adult Education

18.431  Application.
18.432  Location and notification.
18.433  Free appropriate public education.
18.434  Education setting.
18.435  Evaluation and placement.
18.436  Procedural safeguards.
18.437  Nonacademic services.
18.438  Adult education programs.
18.439  Private education programs.

                         Postsecondary Education

18.441  Application.
18.442  Admissions and recruitment.
18.443  General treatment of students.
18.444  Academic adjustments.
18.445  Housing.
18.446  Financial and employment assistance to students.
18.447  Nonacademic services.

                       Health and Social Services

18.451  Application.
18.452  Health and other social services.
18.453  Drug and alcohol addicts.
18.454  Education of institutionalized persons.

                               Procedures

18.461  Procedures.

Appendix A to Subpart D to Part 18--Statutory Provisions to Which This 
          Part Applies

            Subpart E--Nondiscrimination on the Basis of Age

                                 General

18.501  Purpose.
18.502  Application.
18.503  Definitions.

              Standards for Determining Age Discrimination

18.511  Rules against age discrimination.
18.512  Definitions of ``normal operation'' and ``statutory objective.''
18.513  Exceptions to the rules against age discrimination; normal 
          operation or statutory objective of any program or activity.
18.514  Exceptions to the rules against age discrimination; reasonable 
          factors other than age.
18.515  Burden of proof.
18.516  Affirmative action by recipients.

      Responsibilities of Department of Veterans Affairs Recipients

18.531  General responsibilities.
18.532  Notice of subrecipients.
18.533  Assurance of compliance and recipient assessment of age 
          distinctions.

[[Page 6]]

18.534  Information requirements.

         Investigation, Conciliation, and Enforcement Procedures

18.541  Compliance reviews.
18.542  Complaints.
18.543  Mediation.
18.544  Investigation.
18.545  Prohibition against intimidation or retaliation.
18.546  Compliance procedure.
18.547  Hearings, decisions, post-termination proceedings.
18.548  Remedial action by recipient.
18.549  Alternate funds disbursal procedure.
18.550  Exhaustion of administrative remedies.

Appendix A to Subpart E to Part 18--Statutory Provisions to Which This 
          Subpart Applies
Appendix B to Subpart E to Part 18--List of Age Distinctions Contained 
          in Statutes and Regulations Governing Federal Financial 
          Assistance Programs of the Department of Veterans Affairs

                           Subpart A--General

    Authority: Sec. 602, 78 Stat. 252 (42 U.S.C. 2000d-1) and the laws 
referred to in Appendix A.

Sec. 18.1  Purpose.

    The purpose of this part is to effectuate the provisions of Title VI 
of the Civil Rights Act of 1964 (hereafter referred to as the Act) to 
the end that no person in the United States shall, on the ground of 
race, color, or national origin, be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program or activity receiving Federal financial assistance 
from the Department of Veterans Affairs.

[29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268, Sept. 
24, 1980]

Sec. 18.2  Application of this part.

    This part applies to any program for which Federal financial 
assistance is authorized under a law administered by the Department of 
Veterans Affairs, including the federally-assisted programs and 
activities listed in appendix A to this subpart. It applies to money 
paid, property transferred, or other Federal financial assistance 
extended under any such program after the effective date of this part 
pursuant to an application approved prior to such effective date. This 
part does not apply to (a) any Federal financial assistance by way of 
insurance or guaranty contracts, (b) money paid, property transferred, 
or other assistance extended under any such program before the effective 
date of this part, (c) any assistance to any individual who is the 
ultimate beneficiary under any such program, or (d) any employment 
practice, under any such program, of any employer, employment agency, or 
labor organization, except to the extent described in Sec. 18.3. The 
fact that a program or activity is not listed in appendix A to this 
subpart shall not mean, if Title VI of the Act is otherwise applicable, 
that such program is not covered. Other programs under statutes now in 
force or hereinafter enacted may be added to appendix A to this subpart 
by notice published in the Federal Register.

[38 FR 17965, July 5, 1973. Designated subpart A at 45 FR 63268, Sept. 
24, 1980]

Sec. 18.3  Discrimination prohibited.

    (a) General. No person in the United States shall, on the ground of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient 
under any program to which this part applies may not, directly or 
through contractual or other arrangements, on grounds of race, color, or 
national origin:
    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to receipt of any service, financial aid, or other 
benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;

[[Page 7]]

    (v) Treat an individual differently from others in determining 
whether is satisfied any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must meet 
in order to be provided any service, financial aid, or other benefit 
provided under the program.
    (vi) Deny a person an opportunity to participate in the program 
through the provision of services or otherwise or afford an opportunity 
to do so which is different from that afforded others under the program.
    (vii) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals to discrimination because of their race, color, or national 
origin, or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program with respect to 
individuals of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, or subjecting 
them to discrimination under any program to which this part applies on 
the grounds of race, color or national origin; or with the purpose or 
effect of defeating or substantially impairing the accomplishment of the 
objectives of the Act or this part.
    (4) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (6)(i) In administering a program regarding which the recipient has 
previously discriminated against persons on the ground of race, color, 
or national origin, the recipient must take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of such prior discrimination, a recipient 
in administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color or national origin.
    (c) Medical emergencies. Notwithstanding the foregoing provisions of 
this section, a recipient of Federal financial assistance shall not be 
deemed to have failed to comply with paragraph (a) of this section if 
immediate provision of a service or other benefit to an individual is 
necessary to prevent his or her death or serious impairment of his or 
her health, and such service or other benefit cannot be provided except 
by or through a medical institution which refuses or fails to comply 
with paragraph (a) of this section.
    (d) Employment practices. (1) Whenever a primary objective of the 
Federal financial assistance to a program to which part 18 applies, is 
to provide employment, a recipient of such assistance may not (directly 
or through contractual or other arrangements) subject any individual to 
discrimination on the ground of race, color, or national origin in its 
employment practices under such program (including recruitment or 
recruitment advertising, employment, layoff, or termination, upgrading, 
demotion, or transfer, rates of pay or other forms of compensation, and 
use of facilities). The requirements applicable to construction 
employment under any such program shall be those specified in or 
pursuant to part III of Executive Order 11246 (3 CFR Chapter IV) or any 
Executive order which supersedes it.

[[Page 8]]

    (2) In regard to Federal financial assistance which does not have 
providing employment as a primary objective, the provisions of paragraph 
(d)(1) of this section apply to the employment practices of the 
recipient if discrimination on the ground of race, color, or national 
origin in such employment practices tends, on the grounds of race, 
color, or national origin, to exclude persons from participation in, to 
deny them the benefits of or to subject them to discrimination under the 
program receiving Federal financial assistance. In any such case, the 
provisions of paragraph (d)(1) of this section shall apply to the extent 
necessary to assure equality of opportunity to and nondiscriminatory 
treatment of beneficiaries.

[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17965, July 5, 1973; 42 
FR 60144, Nov. 25, 1977. Designated subpart A at 45 FR 63268, Sept. 24, 
1980, and further amended at 51 FR 10384, Mar. 26, 1986]

Sec. 18.4  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to carry out a program to which this part applies, except a program to 
which paragraph (b) of this section applies, and every application for 
Federal financial assistance to provide a facility shall, as a condition 
to its approval and the extension of any Federal financial assistance 
pursuant to the application, contain or be accompanied by an assurance 
that the program will be conducted or the facility operated in 
compliance with all requirements imposed by or pursuant to this part. 
Every program of Federal financial assistance shall require the 
submission of such an assurance. In the case of an application for 
Federal financial assistance to provide real property or structures 
thereon, the assurance shall obligate the recipient, or, in the case of 
a subsequent transfer, the transferee, for the period during which the 
real property or structures are used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits. In the case of personal 
property the assurance shall obligate the recipient for the period 
during which the recipient retains ownership or possession of the 
property. In all other cases the assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended 
pursuant to the application. The responsible agency official shall 
specify the form of the foregoing assurances for each program, and the 
extent to which like assurances will be required of subgrantees, 
contractors and subcontractors, transferees, successors in interest, and 
other participants in the program. Any such assurance shall include 
provisions which give the United States a right to seek its judicial 
enforcement.
    (2) Transfers of surplus property are subject to regulations issued 
by the Administrator of General Services (41 CFR subpart 101-6.2).
    (b) Continuing State programs. Every application by a State or a 
State agency to carry out a program involving continuing Federal 
financial assistance to which this part applies (including the programs 
listed in appendix A to this subpart) shall as a condition to its 
approval and the extension of any Federal financial assistance pursuant 
to the application (1) contain or be accompanied by a statement that the 
program is (or, in the case of a new program, will be) conducted in 
compliance with all requirements imposed by or pursuant to this part, 
and (2) provide or be accompanied by provision for such methods of 
administration for the program as are found by the responsible agency 
official to give reasonable assurance that the applicant and all 
recipients of Federal financial assistance under such program will 
comply with all requirements imposed by or pursuant to this part. In any 
case in which the recipient is claiming financial assistance under a 
continuing program pursuant to arrangements entered into prior to the 
effective date of this part, the assurances provided by this paragraph 
shall be included in the first application or claim for assistance on or 
after the effective date of this part.
    (c) Elementary and secondary schools. The requirements of paragraph 
(a) or (b) of this section with respect to any elementary or secondary 
school or school system shall be deemed to be satisfied if such school 
or school system (1) is subject to a final order of a

[[Page 9]]

court of the United States for the desegregation of such school or 
school system, and provides an assurance that it will comply with such 
order, including any future modification of such order, or (2) submits a 
plan for the desegregation of such school or school system which the 
responsible agency official determines is adequate to accomplish the 
purposes of the Act and this part, at the earliest practicable time, and 
provides reasonable assurance that it will carry out such plan; in any 
case of continuing Federal financial assistance the responsible agency 
official may reserve the right to redetermine, after such period as may 
be specified by the official, the adequacy of the plan to accomplish the 
purposes of the Act and this part. In any case in which a final order of 
a court of the United States for the desegregation of such school or 
school system is entered after submission of such a plan, such plan 
shall be revised to conform to such final order, including any future 
modification of such order.
    (d) Extent of application to institution or facility. In the case 
where any assurances are required from an academic, a medical care, or 
any other institution or facility, insofar as the assurances relate to 
the institution's practices with respect to the admission, care, or 
other treatment of persons by the institution or with respect to the 
opportunity of persons to participate in the receiving or providing of 
services, treatment, or benefits, such assurances shall be applicable to 
the entire institution or facility. That requirement may be waived by 
the responsible agency official if the party furnishing the assurances 
establishes to the satisfaction of the responsible agency official that 
the practices in designated parts or programs of the institution or 
facility will in no way affect its practices in the program of the 
institution or facility for which Federal financial assistance is or is 
sought to be provided, or affect the beneficiaries of or participants in 
such program. If in any such case the assistance is or is sought for the 
construction of a facility or part of a facility, the assurances shall 
in any event extend to the entire facility and to facilities operated in 
connection therewith.

[38 FR 17965, July 5, 1973. Designated subpart A at 45 FR 63268, Sept. 
24, 1980, and amended at 51 FR 10384, Mar. 26, 1986]

Sec. 18.6  Compliance information.

    (a) Cooperation and assistance. Each responsible agency official 
shall to the fullest extent practicable seek the cooperation of 
recipients in obtaining compliance with this part and shall provide 
assistance and guidance to recipients to help them comply voluntarily 
with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the responsible agency official or designee, timely, complete 
and accurate compliance reports at such times, and in such form and 
containing such information, as the responsible agency official or 
designee may determine to be necessary to enable the official to 
ascertain whether the recipient has complied or is complying with this 
part. In the case of any program under which a primary recipient extends 
Federal financial assistance to any other recipient, such other 
recipient shall also submit such compliance reports to the primary 
recipient as may be necessary to enable the primary recipient to carry 
out its obligations under this part. In general, recipients should have 
available for the agency racial and ethnic data showing the extent to 
which members of minority groups are beneficiaries of federally assisted 
programs.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible agency official or designee during normal 
business hours to such of its books, records, accounts, and other 
sources of information, and its facilities as may be pertinent to 
ascertain compliance with this part. Where any information required of a 
recipient is in the exclusive possession of any other agency, 
institution or person and this agency, institution or person shall fail 
or refuse to furnish this information, the recipient shall so certify in 
its report and shall set forth what efforts it has made to obtain the 
information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries,

[[Page 10]]

and other interested persons such information regarding the provisions 
of this part and its applicability to the program under which the 
recipient receives Federal financial assistance, and make such 
information available to them in such manner, as the responsible agency 
official finds necessary to apprise such persons of the protections 
against discrimination assured them by the Act and this part.

[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973. 
Designated subpart A at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR 
10384, Mar. 26, 1986]

Sec. 18.7  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible agency official or 
designee shall from time to time review the practices of recipients to 
determine whether they are complying with this part.
    (b) Complaints. Any person or any specific class of individuals who 
believe they have been subjected to discrimination prohibited by this 
part may themselves, or by a representative, file with the responsible 
agency official or designee a written complaint. A complaint must be 
filed not later than 180 days from the date of the alleged 
discrimination unless the time for filing is extended by the responsible 
agency offical or designee.
    (c) Investigations. The responsible agency official or designee will 
initiate a prompt investigation whenever a compliance review, report, 
complaint, or any other information indicates a possible failure to 
comply with this part. The investigation should include, where 
appropriate, a review of the pertinent practices and policies of the 
recipient, the circumstances under which the possible noncompliance with 
this part occurred, and other factors relevant to a determination as to 
whether the recipient has failed to comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the responsible agency official or designee will so inform the 
recipient and the matter will be resolved by informal means whenever 
possible. If it has been determined that the matter cannot be resolved 
by informal means, action will be taken as provided for in Sec. 18.8.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the responsible agency official or 
designee will so inform the recipient and the complainant, if any, in 
writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because the 
individual has made a complaint, testified, assisted, or participated in 
any manner in an investigation, proceeding, or hearing under this part. 
The identity of complainants shall be kept confidential except to the 
extent necessary to carry out the purposes of this part, including the 
conduct of any investigation, hearing, or judicial proceeding arising 
thereunder.

[29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268, Sept. 
24, 1980 and amended at 51 FR 10384, Mar. 26, 1986]

Sec. 18.8  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to, (1) a reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec. 18.4. If an applicant fails or refuses 
to furnish an assurance required under Sec. 18.4 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section Federal financial assistance may be refused in accordance with

[[Page 11]]

the procedures of paragraph (c) of this section. The Department of 
Veterans Affairs shall not be required to provide assistance in such a 
case during the pendency of the administrative proceedings under such 
paragraph except that the Department of Veterans Affairs shall continue 
assistance during the pendency of such proceedings where such assistance 
is due and payable pursuant to an application therefor approved prior to 
the effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating or refusing to 
grant or continue Federal financial assistance shall become effective 
until (1) the responsible agency official has advised the applicant or 
recipient of failure to comply and has determined that compliance cannot 
be secured by voluntary means, (2) there has been an express finding on 
the record, after opportunity for hearing, of a failure by the applicant 
or recipient to comply with a requirement imposed by or pursuant to this 
part, (3) the action has been approved by the Secretary pursuant to 
Sec. 18.10(e), and (4) the expiration of 30 days after the Secretary has 
filed with the committee of the House and the committee of the Senate 
having legislative jurisdiction over the program involved, a full 
written report of the circumstances and the grounds for such action. Any 
action to suspend or terminate or to refuse to grant or to continue 
Federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance 
with Title VI of the Act by any other means authorized by law shall be 
taken by the Department of Veterans Affairs until (1) the responsible 
agency official has determined that compliance cannot be secured by 
voluntary means, (2) the recipient or other person has been notified of 
its failure to comply and of the action to be taken to effect 
compliance, and (3) the expiration of at least 10 days from the mailing 
of such notice to the recipient or other person. During this period of 
at least 10 days, additional efforts shall be made to persuade the 
recipient or other person to comply with this part and to take such 
corrective action as may be appropriate.

[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973. 
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51 
FR 10384, Mar. 26, 1986]

Sec. 18.9  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 18.8(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request of the responsible 
agency official that the matter be scheduled for hearing or (2) advise 
the applicant or recipient that the matter in question has been set down 
for hearing at a stated place and time. The time and place so fixed 
shall be reasonable and shall be subject to change for cause. The 
complainant, if any, shall be advised of the time and place of the 
hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing under this paragraph or to 
appear at a hearing for which a date has been set shall be deemed to be 
a waiver of the right to a hearing under section 602 of the Act and 
Sec. 18.8(c) of this part and consent to the making of a decision on the 
basis of such information as is available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Department of Veterans Affairs in Washington, D.C., at a time 
fixed by the responsible agency official unless the official determines 
that the convenience of the applicant or recipient

[[Page 12]]

or of the Department of Veterans Affairs requires that another place be 
selected. Hearings shall be held before the responsible agency official 
or, at the official's discretion, before an administrative law judge 
appointed in accordance with section 3105 of Title 5, U.S.C., or 
detailed under section 3344 of Title 5, U.S.C.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department of Veterans Affairs shall have 
the right to be represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing decision and 
any administrative review thereof shall be conducted in conformity with 
the procedures contained in 5 U.S.C. 554-557 (sections 5-8 of the 
Administrative Procedure Act) and in accordance with such rules of 
procedure as are proper (and not inconsistent with this section) 
relating to the conduct of the hearing, giving of notices subsequent to 
those provided for in paragraph (a) of this section, taking of 
testimony, exhibits, arguments and briefs, requests for findings, and 
other related matters. Both the Department of Veterans Affairs and the 
applicant or recipient shall be entitled to introduce all relevant 
evidence on the issues as stated in the notice for hearing or as 
determined by the officer conducting the hearing at the outset of or 
during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more programs to which this part applies, or 
noncompliance with this part and the regulations of one or more other 
Federal departments or agencies issued under Title VI of the Act, the 
Secretary may, by agreement with such other departments or agencies 
where applicable, provide for the conduct of consolidated or joint 
hearings, and for the application to such hearings of rules of 
procedures not inconsistent with this part. Final decisions in such 
cases, insofar as this part is concerned, shall be made in accordance 
with Sec. 18.10.

[29 FR 19301, Dec. 28, 1964, as amended at 38 FR 17966, July 5, 1973. 
Designated subpart A at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR 
10384, Mar. 26, 1986]

Sec. 18.10  Decisions and notices.

    (a) Procedure on decisions by an administrative law judge. If the 
hearing is held by an administrative law judge such administrative law 
judge shall either make an initial decision, if so authorized, or 
certify the entire record including recommended findings and proposed 
decision to the responsible agency official for a final decision, and a 
copy of such initial decision or certification shall be mailed to the 
applicant or recipient. Where the initial decision is made by the 
administrative law judge the applicant or recipient may within 30 days 
of the mailing of such notice of initial decision file with the 
responsible agency official exceptions to the initial decision with 
reasons therefor. In the absence of exceptions, the responsible agency 
official may within 45 days after the initial decision serve on the 
applicant or recipient a notice that the decision will be reviewed. Upon 
the filing of such exceptions or of such notice of review the 
responsible agency official shall review the initial decision and issue 
a decision thereon including the reasons therefor. In the absence of 
either exceptions or a notice of review the initial decision shall 
constitute the final decision of the responsible agency official.
    (b) Decisions on record or review by the responsible agency 
official. Whenever a

[[Page 13]]

record is certified to the responsible agency official for decision or 
the official reviews the decision of an administrative law judge 
pursuant to paragraph (a) of this section, or whenever the responsible 
agency official conducts the hearing, the applicant or recipient shall 
be given reasonable opportunity to file with the official briefs or 
other written statements of its contentions, and a written copy of the 
final decision of the responsible agency official shall be sent to the 
applicant or recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 18.9(a) a decision shall be made by 
the responsible agency official on the record and a written copy of such 
decision shall be sent to the applicant or recipient, and to the 
complainant, if any.
    (d) Rulings required. Each decision of an administrative law judge 
or responsible agency official shall set forth a ruling on each finding, 
conclusion, or exception presented, and shall identify the requirements 
imposed by or pursuant to this part with which it is found that the 
applicant or recipient has failed to comply.
    (e) Approval by Secretary. Any final decision by an administrative 
law judge which provides for the suspension or termination of, or the 
refusal to grant or continue Federal financial assistance, or the 
imposition of any other sanction available under this part of the Act, 
shall promptly be transmitted to the Secretary personally, who may 
approve such decision, may vacate it, or remit or mitigate any sanction 
imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, under the program involved, and may 
contain such terms, conditions, and other provisions as are consistent 
with and will effectuate the purposes of the Act and this part, 
including provisions designed to assure that no Federal financial 
assistance will thereafter be extended under such program to the 
applicant or recipient determined by such decision to be in default in 
its performance of an assurance given by it pursuant to this part, or to 
have otherwise failed to comply with this part, unless and until it 
corrects its noncompliance and satisfies the responsible agency official 
that it will fully comply with this part.
    (g) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this section and provides reasonable assurance that it will fully comply 
with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the responsible agency official to restore fully its eligibility 
to receive Federal financial assistance. Any such request shall be 
supported by information showing that the applicant or recipient has met 
the requirements of paragraph (g)(1) of this section. If the responsible 
agency official determines that those requirements have been satisfied, 
the official shall restore such eligibility.
    (3) If the responsible agency official denies any such request, the 
applicant or recipient may submit a request for a hearing in writing, 
specifying why it believes such official to have been in error. It shall 
thereupon be given an expeditious hearing, with a decision on the 
record, in accordance with rules of procedure issued by the responsible 
agency official. The applicant or recipient will be restored to such 
eligibility if it proves at such a hearing that it satisfied the 
requirements of paragraph (g)(1) of this section. While proceedings 
under this paragraph are pending, the sanctions imposed by the order 
issued under paragraph (f) of this section shall remain in effect.

[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973. 
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51 
FR 10384, Mar. 26, 1986]

Sec. 18.11  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.

[29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268, Sept. 
24, 1980]

[[Page 14]]

Sec. 18.12  Effect on other regulations, forms and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions issued before the effective date of this part by any officer 
of the Department of Veterans Affairs which impose requirements designed 
to prohibit any discrimination against individuals on the grounds of 
race, color or national origin under any program to which this part 
applies, and which authorize the suspension or termination of or refusal 
to grant or to continue Federal financial assistance to any applicant 
for or recipient of such assistance under such program for failure to 
comply with such requirements, are hereby superseded to the extent that 
such discrimination is prohibited by this part, except that nothing in 
this part shall be deemed to relieve any person of any obligation 
assumed or imposed under any such superseded regulation, order, 
instruction, or like direction prior to the effective date of this part. 
Nothing in this part, however, shall be deemed to supersede any of the 
following (including future amendments thereof):
    (1) Executive Orders 10925 (3 CFR, 1959-1963 Comp., p. 448), 11114 
(3 CFR, 1959-1963, p. 774), and 11246 (3 CFR, 1965 Supp., p. 167) and 
regulations issued thereunder, or
    (2) Executive Order 11063 (3 CFR, 1959-1963 Comp., p. 652) and 
regulations issued thereunder, or any other orders, regulations or 
instructions, insofar as such orders, regulations, or instructions 
prohibit discrimination on the grounds of race, color or national origin 
in any program or situation to which this part is inapplicable, or 
prohibit discrimination on any other ground.
    (b) Forms and instructions. Each responsible agency officials shall 
issue and promptly make available to interested persons forms and 
detailed instructions and procedures for effectuating this part as 
applied to programs to which this part applies and for which he is 
responsible.
    (c) Supervision and coordination. The Secretary may from time to 
time assign to officials of the Department of Veterans Affairs or to 
officials of other departments or agencies of the Government with the 
consent of such departments or agencies, responsibilities in connection 
with the effectuation of the purposes of Title VI of the Act and this 
part (other than responsibility for final decision as provided in 
Sec. 18.10) including the achievement of effective coordination and 
maximum uniformity within the Department of Veterans Affairs and within 
the executive branch of the Government in the application of Title VI 
and this part to similar programs and in similar situations. Any action 
taken, determination made, or requirement imposed by an official of 
another department or agency acting pursuant to an assignment of 
responsibility under this paragraph shall have the same effect as though 
such action has been taken by the responsible official of this Agency.

[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17967, July 5, 1973. 
Designated subpart A at 45 FR 63268, Sept. 24, 1980]

Sec. 18.13  Definitions.

    As used in this part:
    (a) The term agency means the Department of Veterans Affairs, and 
includes each of its operating agencies and other organization units.
    (b) The term Secretary means the Secretary of Veterans Affairs.
    (c) The term responsible agency official with respect to any program 
receiving Federal financial assistance means the Secretary or other 
official of the Department of Veterans Affairs or an official of another 
department or agency to the extent the Secretary has delegated authority 
to such official.
    (d) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, Wake Island, the Canal Zone, and the territories and 
possessions of the United States, and the term State means any one of 
the foregoing.
    (e) The term Federal financial assistance includes (1) grants of 
Federal funds, (2) the grant or donation of Federal property and 
interests in property, (3) the detail of Federal personnel, (4) the sale 
and lease of, and the permission to use (on other than a casual or 
transient basis), Federal property or any interest in such property 
without

[[Page 15]]

consideration or at a nominal consideration, or at a consideration which 
is reduced for the purpose of assisting the recipient, or in recognition 
of the public interest to be served by such sale or lease to the 
recipient, and (5) any Federal agreement, arrangement, or other contract 
which has as one of its purposes the provision of assistance.
    (f) The term program, except those specifically excluded in 
Sec. 18.2, includes any program, project, or activity for the provision 
of services, financial aid, or other benefits to individuals conducted 
under a law administered by the Department of Veterans Affairs, 
including but not limited to the programs and activities listed in 
appendix A to this subpart. The services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any services, financial aid or other benefits 
provided with the aid of Federal financial assistance or with the aid of 
any non-Federal funds, property, or other resources required to be 
expended or made available for the program to meet matching requirements 
or other conditions which must be met in order to receive the Federal 
financial assistance, and to include any services, financial aid, or 
other benefits provided in or through a facility provided with the aid 
of Federal financial assistance or such non-Federal resources.
    (g) The term facility includes all or any portion of structures, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.
    (h) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or other entity, 
or any individual, in the United States, to whom Federal financial 
assistance is extended, directly or through another recipient, for any 
program, including any successor, assignee, or transferee thereof, but 
such term does not include any ultimate beneficiary under any such 
program.
    (i) The term applicant means a person who submits an application, 
request, or plan required to be approved by the Secretary, or by a 
recipient, as a condition to eligibility for Federal financial 
assistance, and application means such an application, request, or plan.

[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17967, July 5, 1973. 
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51 
FR 10385, Mar. 26, 1986]

 Appendix A to Subpart A to Part 18--Statutory Provisions to Which This 
                             Subpart Applies

    1. Payments to State homes (38 U.S.C. 1741-1743).
    2. State home facilities for furnishing domiciliary, nursing home, 
and hospital care (38 U.S.C. 8131-8137).
    3. Space and office facilities for representatives of recognized 
national organizations (38 U.S.C. 5902(a)(2)).
    4. All-volunteer force educational assistance, vocational 
rehabilitation, post-Vietnam era veterans' educational assistance, 
survivors' and dependents' educational assistance, and administration of 
educational benefits (38 U.S.C. Chapters 30, 31, 32, 34, 35 and 36, 
respectively).
    5. Sharing of medical facilities, equipment, and information (38 
U.S.C. 8151-8157).
    6. Approval of educational institutions (38 U.S.C. 104).
    7. Space and office facilities for representatives of State 
employment services (38 U.S.C. 7725(1)).
    8. Medical care for survivors and dependents of certain veterans (38 
U.S.C. 1713).
    9. Transfers for nursing home care; adult day health care (38 U.S.C. 
1720).
    10. Treatment and rehabilitation for alcohol or drug dependence or 
abuse disabilities (38 U.S.C. 1720A).
    11. Aid to States for establishment, expansion, and improvement of 
veterans cemeteries (38 U.S.C. 2408).
    12. Assistance in establishing new medical schools; grants to 
affiliated medical schools; assistance to health manpower training 
institutions (38 U.S.C. Chapter 82).
    13. Department of Veterans Affairs health professional scholarship 
program (38 U.S.C. 7601-7655).
    14. Emergency veterans job training (Pub. L. 98-77, 97 Stat. 443-
452).

[51 FR 10385, Mar. 26, 1986]

      Appendix B to Subpart A to Part 18--Illustrative Applications

    The following examples, without being exhaustive, will illustrate 
the application of the nondiscrimination provisions to certain

[[Page 16]]

grants of the Department of Veterans Affairs. (In all cases the 
discrimination prohibited is discrimination on the grounds of race, 
color, or national origin prohibited by title VI of the Act and this 
part, as a condition of the receipt of Federal financial assistance.)
    (a) In grants which support the provision of health or welfare 
services for veterans in State homes, discrimination in the selection or 
eligibility of individuals to receive the services, and segregation or 
other discriminatory practices in the manner of providing them, are 
prohibited. This prohibition extends to all facilities and services 
provided by the State as grantee under the program or by a political 
subdivision of the State. It extends also to services purchased or 
otherwise obtained by the grantee (or political subdivision) from 
hospitals, nursing homes, schools, and similar institutions for 
beneficiaries of the program, and to the facilities in which such 
services are provided, subject, however, to the provisions of 
Sec. 18.3(c).
    (b) In grants to assist in the construction of facilities for the 
provision of health or welfare services assurances will be required that 
services will be provided without discrimination, to the same extent 
that discrimination would be prohibited as a condition of Federal 
operating grants for the support of such services. Thus, as a condition 
of grants for the construction of a State home for furnishing nursing 
home care, assurances will be required that there will be no 
discrimination in the admission or treatment of patients. In the case of 
such grants the assurance will apply to patients, to interns, residents, 
student nurses, and other trainees, and to the privilege of physicians, 
dentists, and other professionally qualified persons to practice in the 
nursing home, and will apply to the entire facility for which, or for a 
part of which, the grant is made, and to facilities operated in 
connection therewith.
    (c) Upon transfers of real or personal surplus property for health 
or educational uses, discrimination is prohibited to the same extent as 
in the case of grants for the construction of facilities or the 
provision of equipment for like purposes.
    (d) A recipient may not take action that is calculated to bring 
about indirectly what this part forbids it to accomplish directly. Thus 
a State, in selecting or approving projects or sites for the 
construction of a nursing home which will receive Federal financial 
assistance, may not base its selections or approvals on criteria which 
have the effect of defeating or of substantially impairing 
accomplishment of the objectives of the Federal assistance program with 
respect to individuals of a particular race, color, or national origin.

(38 U.S.C. 1741, 1744, 8131-8137, 8155, 5902(a)(2), Chapters 31, 34, 35 
and 36)

[38 FR 17968, July 5, 1973. Designated subpart A at 45 FR 63268, Sept. 
24, 1980]

Subparts B-C  [Reserved]

   Subpart D--Nondiscrimination in Federally-Assisted Programs of the 
 Department of Veterans Affairs--Effectuation of Title VI of the Civil 
                           Rights Act of 1964

    Authority: 29 U.S.C. 794; 42 U.S.C. 2000d-1 to 2000d-4, 6101-6107.

    Source: 45 FR 63268, Sept. 24, 1980, unless otherwise noted.

                           General Provisions

Sec. 18.401  Purpose.

    The purpose of this part is to effectuate section 504 of the 
Rehabilitation Act of 1973, which is designed to eliminate 
discrimination on the basis of handicap in any program or activity 
receiving Federal financial assistance.

Sec. 18.402  Application.

    This part applies to each recipient of Federal financial assistance 
from the Department of Veterans Affairs and to each program or activity 
that receives or benefits from such assistance.

Sec. 18.403  Definitions.

    As used in this part, the term:
    (a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as 
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, 
and Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978, Pub. L. 95-602, 29 U.S.C. 794.
    (b) Section 504 means section 504 of the Act.
    (c) Education of the Handicapped Act means that statute as amended 
by the Education for all Handicapped Children Act of 1975, Pub. L. 94-
142, 20 U.S.C. 1401 et seq.
    (d) Agency means the Department of Veterans Affairs.
    (e) Secretary means the Secretary of Veterans Affairs.

[[Page 17]]

    (f) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient but excluding the ultimate beneficiary of the 
assistance.
    (g) Applicant for assistance means one who submits an application, 
request, or plan required to be approved by an Agency official or by a 
recipient as a condition to eligibility for Federal financial 
assistance.
    (h) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guaranty), or any other arrangement by which the Agency provides or 
otherwise makes available assistance in the form of:
    (1) Funds, including funds extended to any entity for payment to or 
on behalf of students admitted to that entity, extended directly to 
those students for payment to that entity, or extended directly to those 
students contingent upon their participation in a program of education 
or training of that entity;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of 
property, including;
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government.
    (i) 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.
    (j) Handicapped person. (1) Handicapped person 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 (j)(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 including speech 
organs; respiratory; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (B) Any mental or psychological discorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (C) The term physical or mental impairment 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, 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 an 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 recipient 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 impairment;
    (C) Has none of the impairments defined in paragraph (j)(2)(i) of 
this section, but is treated by a recipient as having such an 
impairment.
    (k) Qualified handicapped person means:
    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the

[[Page 18]]

essential functions of the job in question;
    (2) With respect to public elementary, secondary, or adult 
educational services, a handicapped person:
    (i) Of an age during which nonhandicapped persons are provided such 
services;
    (ii) Of any age during which it is mandatory under State laws to 
provide such services to handicapped persons; or
    (iii) To whom a State is required to provide a free appropriate 
public education under section 612 of the Education of the Handicapped 
Act; and
    (3) With respect to postsecondary and vocational education services, 
a handicapped person who meets the academic and technical standards 
requisite to admission or participation in the recipient's education 
program or activity; and
    (4) With respect to other services, a handicapped person who meets 
the essential eligibility requirements for the receipt of such services.
    (l) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (j) of this section.

Sec. 18.404  Discrimination prohibited.

    (a) General. No qualified handicapped person shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity which receives or benefits from Federal financial assistance.
    (b) Discriminatory actions prohibited. (1) A recipient, in providing 
an aid, benefit, or service, may not, directly or through contractual, 
licensing, or other arrangements, on the basis of handicap:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service that is 
equal to that afforded others;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons unless such 
action is necessary to provide qualified handicapped persons with aid, 
benefits, or services that are as effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to an agency, organization, 
or person that discriminates on the basis of handicap in providing any 
aid, benefit, or service to beneficiaries of the recipient's program;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving an aid, benefit, or service.
    (2) Aids, benefits, and services, to be equally effective, are not 
required to produce the identical result or level of achievement for 
handicapped and nonhandicapped persons, but must give handicapped 
persons equal opportunity to obtain the same result, to gain the same 
benefit, or to reach the same level of achievement, in the most 
integrated setting appropriate to the person's needs.
    (3) Despite the existence of separate or different programs or 
activities provided in accordance with this part, a recipient may not 
deny a qualified handicapped person the opportunity to participate in 
programs or activities that are not separate or different.
    (4) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration that:
    (i) Have the effect of subjecting qualified handicapped persons to 
discrimination on the basis of handicap,
    (ii) Have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the recipient's program 
with respect to handicapped persons, or
    (iii) Perpetuate the discrimination of another recipient if both 
recipients are

[[Page 19]]

subject to common administrative control or are agencies of the same 
State.
    (5) In determining the site or location of a facility, an applicant 
for assistance or a recipient may not make selections that:
    (i) Have the effect of excluding handicapped persons from, deny them 
the benefits of, or otherwise subject them to discrimination under any 
program or activity that receives or benefits from Federal financial 
assistance, or
    (ii) Have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objective of the program or activity 
with respect to handicapped persons.
    (6) As used in this section, the aid, benefit, or service provided 
under a program or activity receiving or benefiting from Federal 
financial assistance includes any aid, benefit, or service provided in 
or through a facility that has been constructed, expanded, altered, 
leased or rented, or otherwise acquired, in whole of in part, with 
Federal financial assistance.
    (c) Programs limited by Federal law. The exclusion of nonhandicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statue or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) Special communication. Recipients shall take appropriate action 
to ensure that communications with their applicants, employees, and 
beneficiaries are available to persons with impaired vision and hearing.

Sec. 18.405  Assurances required.

    (a) Assurances. An applicant for Federal financial assistance for a 
program or activity to which this part applies shall submit an assurance 
on a form specified by the Secretary, that the program will be operated 
in compliance with this part.
    (b) Duration of obligation. (1) When Federal financial assistance is 
extended in the form of real property or structures on the property, the 
assurance will obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used for the purpose for which Federal financial 
assistance is extended or for another purpose involving the provisions 
of similar services or benefits.
    (2) Where Federal financial assistance is extended to provide 
personal property, the assurance will obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases the assurance will obligate the recipient for 
the period during which Federal financial assistance is extended.
    (c) Extent of application to institution or facility. An assurance 
shall apply to the entire institution or facility unless the applicant 
establishes, to the satisfaction of the Secretary, 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, or the 
beneficiaries of or participants in such a program. If the assistance is 
being received or requested for the construction of a facility or part 
of a facility, the assurance shall apply to the entire facility and to 
other facilities operated in connection with the facility.
    (d) Covenants. (1) Where Federal financial assistance is provided in 
the form of real property or interest in the property from the Agency, 
the instrument effecting or recording this transfer shall contain a 
covenant running with the land to assure nondiscrimination for the 
period during which the real property is used for a purpose for which 
the Federal financial assistance is extended or for another purpose 
involving the provisions of similar services or benefits.
    (2) Where no transfer of property is involved but property is 
purchased or improved with Federal financial assistance, the recipient 
shall agree to include the covenant described in paragraph (b)(2) of 
this section in the instrument effecting or recording any subsequent 
transfer of property.
    (3) Where Federal financial assistance is provided in the form of 
real property or interest in the property from the Agency, the covenant 
shall also include a condition coupled with a right to be reserved by 
the Agency to revert title to the property if there is a

[[Page 20]]

breach of the covenant. If a transferree of real property proposes to 
mortgage or otherwise encumber the real property as security for 
financing construction of new, or improvement of existing, facilities on 
the property for the purpose for which the property was transferred, the 
Secretary may, upon request of the transferee and if necessary to 
accomplish such financing and upon such conditions as considered 
appropriate, agree to forbear the exercise of the right to revert title 
for as long as the lien of the mortgage or other encumbrance remains 
effective.
    (e) Other methods of enforcement. (1) Recipients are required to 
keep such records as the responsible VA official deems necessary for 
complete and accurate compliance reports. VA can specify intervals for 
reporting and prescribe the form and content of information required to 
ascertain whether the recipient has complied or is complying with the 
law.
    (2) Periodic compliance reviews of training establishments will be 
conducted by VA compliance officers. During these reviews recipients are 
required to permit access by VA compliance officers during normal 
business hours to such of their books, records, accounts, facilities and 
other sources of information including interviews with personnel and 
trainees as may be pertinent to ascertain compliance with the law.
    (3) From study of documentation, results of interviews, and 
observation of activities during tours of facilities, compliance 
officers will evaluate recipients' compliance status.

[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986]

Sec. 18.406  Remedial action, voluntary action and self-evaluation.

    (a) Remedial action. (1) If the Secretary finds that a recipient has 
discriminated against qualified persons on the basis of handicap in 
violation of section 504 or this part, the recipient shall take such 
remedial action as the Secretary considers necessary to overcome the 
effects of the discrimination.
    (2) Where a recipient is found to have discriminated against 
qualified persons on the basis of handicap in violation of section 504 
or this part and where another recipient exercises control over the 
recipient that has discriminated, the Secretary, where appropriate, may 
require either or both recipients to take remedial action.
    (3) The Secretary may, where necessary to overcome the effects of 
discrimination in violation of section 504 or this part, require a 
recipient to take remedial action with respect to:
    (i) Handicapped persons who are no longer participants in the 
recipient's program but who were participants in the program when such 
discrimination occurred;
    (ii) Handicapped persons who would have been participants in the 
program had the discrimination not occurred; or
    (iii) Handicapped persons presently in the program, but not 
receiving full benefits or equal and integrated treatment within the 
program.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this part, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped persons.
    (c) Self-evaluation. (1) A recipient shall, within one year of the 
effective date of this part:
    (i) Evaluate with the assistance of interested persons, including 
handicapped persons or organizations representing handicapped persons, 
its current policies and practices and the effects of the policies and 
practices that do not or may not meet the requirements of this part;
    (ii) Modify, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
any policies and practices that do not meet the requirements of this 
part; and
    (iii) Take, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from adherence to these policies and 
practices.
    (2) A recipient that employs fifteen or more persons shall, for at 
least three years following completion of the evaluation required under 
paragraph (c)(1) of this section, maintain on file, make

[[Page 21]]

available for public inspection, and provide to the Secretary upon 
request:
    (i) A list of the interested persons consulted;
    (ii) A description of areas examined and any problems identified; 
and
    (iii) A description of any modifications made and of any remedial 
steps taken.
    (3) Recipients who become such more than one year after the 
effective date of these regulations shall complete these self-evaluation 
requirements within one year after becoming recipients of Federal 
financial assistance.

(The information collection requirements contained in paragraph (c) have 
been approved by the Office of Management and Budget under control 
number 2900-0415)

[45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15, 1984]

Sec. 18.407  Designation of responsible employee and adoption of 
          grievance procedures.

    (a) Designation of responsible employee. A recipient that employs 
fifteen or more persons shall designate at least one person to 
coordinate its efforts to comply with this part.
    (b) Adoption of grievance procedures. A recipient that employs 
fifteen or more persons shall adopt grievance procedures that 
incorporate appropriate due process standards and that provide for the 
prompt and equitable resolution of complaints alleging any action 
prohibited by this part. Such procedures need not be established with 
respect to complaints from applicants for employment or from applicants 
for admission to postsecondary educational institutions.

Sec. 18.408  Notice.

    (a) A recipient that employs fifteen or more persons shall take 
appropriate initial and continuing steps to notify participants, 
beneficiaries, applicants, and employees, including those with impaired 
vision or hearing, and unions or professional organizations holding 
collective bargaining or professional agreements with the recipient that 
it does not discriminate on the basis of handicap in violation of 
section 504 and this part. The notification shall state, where 
appropriate, that the recipient does not discriminate in admission or 
access to, or treatment, or employment in, its programs and activities. 
The notification shall also include an identification of the responsible 
employee designated under Sec. 18.407. A recipient shall make the 
initial notification required by this paragraph within 90 days of the 
effective date of this part. Methods of initial and continuing 
notification may include the posting of notices, publication in 
newspapers and magazines, placement of notices in recipient's 
publication, and distribution of memorandums or other written 
communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this section either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications.

Sec. 18.409  Administrative requirements for certain recipients.

    The Secretary may require any recipient with fewer than fifteen 
employees, or any class of such recipients, to comply with Secs. 18.407 
and 18.408 in whole or in part, when the Secretary finds a violation of 
this part or finds that such compliance will not significantly impair 
the ability of the recipient or class of recipients to provide benefits 
or services.

Sec. 18.410  Effect of State or local law or other requirements and 
          effect of employment opportunities.

    (a) The obligation to comply with this part is not obviated or 
alleviated by the existence of any State law or other requirement that, 
on the basis of handicap, imposes prohibitions or limits upon the 
eligibility of qualified handicapped persons to receive services or to 
practice any occupation or profession.
    (b) The obligation to comply with this part is not obviated or 
alleviated because employment opportunities in any occupation or 
profession are or

[[Page 22]]

may be more limited for handicapped persons than for nonhandicapped 
persons.

                          Employment Practices

Sec. 18.411  Discrimination prohibited.

    (a) General. (1) No qualified handicapped person shall, on the basis 
of handicap, be subjected to discrimination in employment under any 
program or activity to which this part applies.
    (2) A recipient shall make all decisions concerning employment under 
any program or activity to which this part applies in a manner which 
ensures that discrimination on the basis of handicap 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 
handicap.
    (3) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination in employment. The 
relationships referred to in this section include relationships with 
employment and referral agencies, with organizations providing or 
administering fringe benefits to employees of the recipient, and with 
organizations providing training and apprenticeship programs.
    (b) Specific activities. Nondiscrimination in employment applies to:
    (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 other forms 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 recipient;
    (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.
    (c) Collective bargaining agreements. A recipient's obligation to 
comply with this subpart is not affected by any inconsistent term of any 
collective bargaining agreement to which it is a party.

Sec. 18.412  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of a handicapped applicant or employee if 
such accommodation would enable that person to perform the essential 
functions of the job unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program.
    (b) Reasonable accommodation may include:
    (1) Making facilities used by employees readily accessible to and 
usable by handicapped persons; and
    (2) Job restructuring, part-time or modified work schedules, 
acquisition or modification of equipment or devices, the provision of 
readers or interpreters and other similar actions.
    (c) In determining under paragraph (a) of this section whether an 
accommodation would impose an undue hardship on the operation of a 
recipient's program, factors to be considered include:
    (1) The overall size of the recipient's program with respect to 
number of employees, number and type of facilities, and size of budget;
    (2) The type of the recipient's operation, including the composition 
and structure of the recipient's work force; and
    (3) The nature and cost of the accommodation needed.
    (d) A recipient may not deny any employment opportunity to a 
qualified handicapped employee or applicant if the basis for denial is 
the need to make reasonable accommodation to the

[[Page 23]]

physical or mental limitations of the employee or applicant.

[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986]

Sec. 18.413  Employment criteria.

    (a) A recipient may not use any employment test or other selection 
criterion that screens out or tends to screen out handicapped persons or 
any class of handicapped persons unless:
    (1) The test score or other selection criterion, as used by the 
recipient, is shown to be job-related for the position in question; and
    (2) Alternative job-related tests or criteria that do not screen out 
or tend to screen out as many handicapped persons are not shown by the 
Secretary to be available.
    (b) A recipient shall select and administer tests concerning 
employment to best ensure that when administered to an applicant or 
employee who has a handicap that impairs sensory, manual, or speaking 
skills, the test results accurately reflect the applicant's or 
employee's job skills, aptitude, or whatever other factor the test 
purports to measure, rather than reflect the applicant's or employee's 
impaired sensory, manual, or speaking skills (except when those skills 
are the factors that the test purports to measure).

Sec. 18.414  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a preemployment medical examination or may not 
make preemployment inquiry of an applicant as to whether the applicant 
is a handicapped person or as to the nature or severity of a handicap. A 
recipient may, however, make preemployment inquiry into the applicant's 
ability to perform job-related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination pursuant to Sec. 18.406(a), when a 
recipient is taking voluntary action to overcome the effects of 
conditions that resulted in limited participation in its federally 
assisted program or activity pursuant to Sec. 18.406(b), or when a 
recipient is taking affirmative action pursuant to section 503 of the 
Act, the recipient may invite applicants for employment to indicate 
whether and to what extent they are handicapped, provided that:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally if no written questionnaire is 
used that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary or 
affirmative action efforts; and
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential as 
provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant or employee to any adverse treatment, and 
that it will be used only in accordance with this part.
    (c) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty, provided 
that:
    (1) All entering employees are subjected to such an examination 
regardless of handicap, and (2) the results of such an examination are 
used only in accordance with the requirements of this part.
    (d) Information obtained in accordance with this section as to the 
medical condition or history of the applicant shall be collected and 
maintained on separate forms that shall be accorded confidentiality as 
medical records, except that:
    (1) Supervisors and managers may be informed regarding restrictions 
on the work or duties of handicapped persons and regarding necessary 
accommodations;
    (2) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment;
    (3) Government officials investigating compliance with the Act shall 
be provided relevant information upon request.

                          Program Accessibility

Sec. 18.421  Discrimination prohibited.

    No qualified handicapped person shall, because a recipient's 
facilities are inaccessible to or unusable by handicapped persons, be 
denied the

[[Page 24]]

benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity to which this 
part applies.

Sec. 18.422  Existing facilities.

    (a) Program accessibility. A recipient shall operate each program or 
activity to which this part applies so that the program or activity, 
when viewed in its entirety, is readily accessible to handicapped 
persons. This paragraph does not require a recipient to make each of its 
existing facilities or every part of a facility accessible to and usable 
by handicapped persons.
    (b) Methods. A recipient may comply with the requirement of 
paragraph (a) of this section through such measures as redesign of 
equipment, reassignment of classes or other services to accessible 
buildings, assignment of aids to beneficiaries, home visits, delivery of 
health, or other social services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities in 
conformance with Sec. 18.423 or any other methods that make its program 
or activity accessible to handicapped persons. A recipient is not 
required to make structural changes in existing facilities where other 
methods are effective in making its programs or activities readily 
accessible to handicapped persons. In choosing among available methods 
for complying with paragraph (a) of this section, a recipient shall give 
priority to methods that offer programs and activities to handicapped 
persons in the most integrated setting appropriate.
    (c) Small health, welfare or other social service providers, and 
recipients that operate other than educational programs or activities. 
If a recipient with fewer than fifteen employees finds after 
consultation with a handicapped person seeking its services that there 
is no method of complying with paragraph (a) of this section other than 
making a significant alteration in its existing facilities, the 
recipient may, as an alternative, refer the qualified handicapped person 
to other providers whose services are accessible. Where referrals are 
necessary, transportation costs shall not exceed costs to and from 
recipients' programs.
    (d) Time period. A recipient shall comply with paragraph (a) of this 
section within 60 days of the effective date of this part except that 
when structural changes in facilities are necessary, these changes shall 
be made as soon as practicable, but not later than three years after the 
effective date of this part.
    (e) Transition plan. If structural changes to facilities are 
necessary to meet the requirements of paragraph (a) of this section, a 
recipient shall develop a transition plan within six months of the 
effective date of this part setting forth the steps necessary to 
complete such change. The plan shall be developed with the assistance of 
interested persons, including handicapped persons or organizations 
representing handicapped persons. A copy of the transition plan shall be 
available for public inspection. The plan shall, at a minimum:
    (1) Identify physical obstacles in the recipient's facilities that 
limit the accessibility of its program or activity to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
full program accessibility and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the person responsible for implementation of the plan.
    (f) Notice. The recipient shall implement procedures to ensure that 
interested persons, including persons with impaired vision or hearing, 
can obtain information concerning the existence and location of 
services, activities, and facilities that are accessible to and usable 
by handicapped persons.

(The information collection requirements contained in paragraph (e) have 
been approved by the Office of Management and Budget under control 
number 2900-0414)

[45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15, 1984]

Sec. 18.423  New construction.

    (a) Design and construction. Each facility or part of a facility 
constructed

[[Page 25]]

by, on behalf of, or for the use of a recipient shall be designed and 
constructed so that the facility or part of the facility is readily 
accessible to and usable by handicapped persons, if the construction was 
commenced after the effective date of this part.
    (b) Alteration. Each facility or part of a facility which is altered 
by, on behalf of, or for the use of a recipient after the effective date 
of this part in a manner that affects or could affect the usability of 
the facility or part of the facility shall, to the maximum extent 
feasible, be altered so that the altered portion of the facility is 
readily accessible to and usable by handicapped persons.
    (c) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of January 18, 1991, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[45 FR 63268, Sept. 24, 1980, as amended at 55 FR 52138, 52141, Dec. 19, 
1990]

               Elementary, Secondary, and Adult Education

Sec. 18.431  Application.

    Sections 18.431 through 18.439 apply to elementary, secondary, and 
adult education programs and activities that receive or benefit from 
Federal financial assistance from the Department of Veterans Affairs and 
to recipients that operate or receive or benefit from Federal financial 
assistance for the operation of such programs or activities.

Sec. 18.432  Location and notification.

    A recipient that operates a public elementary or secondary 
educational program shall annually:
    (a) Undertake to identify and locate every qualified handicapped 
person residing in the recipient's jurisdiction who is not receiving a 
public education; and
    (b) Take appropriate steps to notify handicapped persons their 
parents or guardians of the recipients's duty under Secs. 18.431 through 
18.439.

Sec. 18.433  Free appropriate public education.

    (a) General. A recipient that operates a public elementary or 
secondary education program shall provide a free appropriate public 
education to each qualified handicapped person who is in the recipient's 
jurisdiction, regardless of the nature or severity of the person's 
handicap.
    (b) Appropriate education. (1) The provision of an appropriate 
education is the provision of regular or special education and related 
aids and services that:
    (i) Are designed to meet individual educational needs of handicapped 
persons as adequately as the needs of nonhandicapped persons are met; 
and
    (ii) Are based upon adherence to procedures that satisfy the 
requirements of Secs. 18.434, 18.435, and 18.436.
    (2) Implementation of an individualized education program developed 
in accordance with the Education of the Handicapped Act is one means of 
meeting the standard established in paragraph (b)(1)(i) of this section.
    (3) A recipient may place a qualified handicapped person in or refer 
that person to a program other than the one that it operates as its 
means of carrying out the requirements of Secs. 18.431 through 18.439. 
The recipients remain responsible for ensuring that the requirements of 
Secs. 18.431 through 18.439 are met with respect to any qualified

[[Page 26]]

handicapped person so placed or referred.
    (c) Free education. (1) The provision of a free education is the 
provision of educational and related services without cost to the 
handicapped person, parents or guardian, except for those fees that are 
imposed on nonhandicapped persons or their parents or guardian. It may 
consist either of the provision of free services or, if a recipient 
places a handicapped person in or refers that person to a program not 
operated by the recipient as its means of carrying out the requirements 
of Secs. 18.431 through 18.439, of payment for the costs of the program. 
Funds available from any public or private agency may be used to meet 
the requirements of this subpart. Nothing in this section shall be 
construed to relieve an insurer or similar third party from an otherwise 
valid obligation to provide or pay for services provided to a 
handicapped person.
    (2) If a recipient places a handicapped person in or refers that 
person to a program not operated by the recipient as its means of 
carrying out the requirements of this subpart, the recipient shall 
ensure that adequate transportation to and from the program is provided 
at no greater cost than would be incurred by the person, parents or 
guardian if the person were placed in the program operated by the 
recipient.
    (3) If placement in a public or private residential program is 
necessary to provide free appropriate public education to a handicapped 
person because of his or her handicap, the program, including non-
medical care and room and board, shall be provided at no cost to the 
person, parents or guardian.
    (4) If a recipient has made available, in conformance with this 
section and Sec. 18.434, a free appropriate public education to a 
handicapped person and the person's parents or guardian chooses to place 
the person in a private school, the recipient is not required to pay for 
the person's education in the private school. Disagreements between a 
parent or guardian and a recipient regarding whether the recipient has 
made such a program available or regarding the question of financial 
responsibility are subject to the due process procedures of Sec. 18.436.
    (d) Compliance. A recipient may not exclude any qualified 
handicapped person from a public elementary or secondary education after 
the effective date of this part. A recipient that is not, on the 
effective date of this part, in full compliance with the requirements of 
paragraphs (a) through (c) of this section shall meet those requirements 
at the earliest practicable time, but not later than October 1, 1981.

[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986; 
51 FR 12702, Apr. 15, 1986]

Sec. 18.434  Education setting.

    (a) Academic setting. A recipient shall educate, or shall provide 
for the education of, each qualified handicapped person in its 
jurisdiction with persons who are not handicapped to the maximum extent 
appropriate to the needs of the handicapped person. A recipient shall 
place a handicapped person in the regular educational environment 
operated by the recipient unless it is demonstrated by the recipient 
that the education of the person in the regular environment with the use 
of supplementary aids and services cannot be achieved satisfactorily. In 
deciding whether to place a person in a setting other than the regular 
educational environment, a recipient shall consider the proximity of the 
alternate setting to the person's home.
    (b) Nonacademic settings. In providing or arranging for the 
provision of nonacademic and extracurricular services and activities, a 
recipient shall ensure that handicapped persons participate with 
nonhandicapped persons in those activities and services to the maximum 
extent appropriate to the needs of the handicapped person in question.
    (c) Comparable facilities. If a recipient in compliance with 
paragraph (a) of this section operates a facility that is identifiable 
as being for handicapped persons, the recipient shall ensure that the 
facility and the services and activities provided in that facility are 
comparable to the other facilities, services, and activities of the 
recipient.

Sec. 18.435  Evaluation and placement.

    (a) Preplacement evaluation. A recipient that operates a public 
elementary or secondary education program shall

[[Page 27]]

conduct an evaluation of any qualified person who, because of handicap, 
needs or is believed to need special education or related services 
before taking any action concerning the initial placement of the person 
in a regular or special program and any subsequent change in placement.
    (b) Evaluation procedures. Elementary, secondary, and adult 
education programs and activities that receive or benefit from Federal 
financial assistance shall establish standards and procedures for the 
evaluation and placement of persons who, because of handicap, need or 
are believed to need special education or related services which ensure 
that:
    (1) Tests and other evaluation materials have been validated for the 
specific purpose for which they are used and are administered by trained 
personnel in conformance with the instructions provided by their 
producer;
    (2) Tests and other evaluation materials include those tailored to 
assess specific areas of educational need and not merely those which are 
designed to provide a single general intelligence quotient; and
    (3) Tests are selected and administered to best ensure that, when a 
test is administered to a student with impaired sensory, manual, or 
speaking skills, the test results accurately reflect the student's 
aptitude or achievement level or whatever other factor the test purports 
to measure, rather than reflect the student's impaired sensory, manual, 
or speaking skills (except where those skills are the factors that the 
test purports to measure.)
    (c) Placement procedures. In interpreting evaluation data and in 
making placement decisions, a recipient shall:
    (1) Draw upon information from a variety of sources, including 
aptitude and achievement tests, teacher recommendations, physical 
condition, social or cultural background and adaptive behavior;
    (2) Establish procedures to ensure that information obtained from 
all sources is documented and carefully considered;
    (3) Ensure that the placement decision is made by a group of 
persons, including persons knowledgeable about the student, the meaning 
of the evaluation data and the placement options; and
    (4) Ensure that the placement decision is made in accordance with 
Sec. 18.434.
    (d) Reevaluation. A recipient to which this section applies shall 
establish procedures, in accordance with paragraph (b) of this section, 
for periodic reevaluation of students who have been provided special 
education and related services. A reevaluation procedure consistent with 
the Education for the Handicapped Act is one means of meeting this 
requirement.

Sec. 18.436  Procedural safeguards.

    (a) A recipient that operates a public elementary or secondary 
education program shall implement a system of procedural safeguards with 
respect to actions regarding the identification, evaluation, or 
educational placement of persons who, because of handicap, need or are 
believed to need special instruction or related services. The system 
shall include:
    (1) Notice;
    (2) An opportunity for the parents or guardian of the person to 
examine relevant records;
    (3) An impartial hearing with opportunity for participation by the 
person's parents or guardian and representation by counsel; and
    (4) Review procedure.
    (b) Compliance with the procedural safeguards of section 615 of the 
Education of the Handicapped Act is one means of meeting this 
requirement.

Sec. 18.437  Nonacademic services.

    (a) General. (1) Elementary, secondary, and adult education programs 
that receive or benefit from Federal financial assistance shall provide 
nonacademic and extracurricular services and activities in a manner 
which gives handicapped students an equal opportunity for participation 
in these services and activities.
    (2) Nonacademic and extracurricular services and activities may 
include counseling services, physical recreational athletics, 
transportation, health services, recreational activities, special 
interest groups or clubs sponsored by the recipient, referrals to 
agencies which provide assistance to handicapped persons, and employment

[[Page 28]]

of students, including both employment by the recipient and assistance 
in making available outside employment.
    (b) Counseling services. Elementary, secondary, and adult education 
programs that receive or benefit from Federal financial assistance and 
that provide personal, academic, or vocational counseling, guidance, or 
placement services to their students shall provide these services 
without discrimination on the basis of handicap and shall ensure that 
qualified handicapped students are not counseled toward more restrictive 
career objectives than are nonhandicapped students with similar 
interests and abilities.
    (c) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar programs and activities to 
any of its students, an elementary, secondary, or adult education 
program or activity that receives or benefits from Federal financial 
assistance may not discriminate on the basis of handicap. A recipient 
that offers physical education courses or that operates or sponsors 
interscholastic, club, or intramural activities shall provide to 
qualified handicapped students an equal opportunity for participation in 
these activities.
    (2) A recipient may offer to handicapped students physical education 
and athletic activities that are separate or different from those 
offered to nonhandicapped students only if separation or differentiation 
is consistent with the requirements of Sec. 18.434 and only if no 
qualified handicapped student is denied the opportunity to compete for 
teams or to participate in courses that are not separate or different.

Sec. 18.438  Adult education programs.

    A recipient that operates an adult education program or activity may 
not, on the basis of handicap, exclude qualified handicapped persons 
from the program or activity. The recipient shall take into account the 
needs of these persons in determining the aid, benefits, or services to 
be provided under the program or activity.

Sec. 18.439  Private education programs.

    (a) A recipient that operates a private elementary or secondary 
education program may not on the basis of handicap, exclude a qualified 
handicapped person from that program if the person can, with minor 
adjustments, be provided an appropriate education, as defined in 
Sec. 18.433(b)(1), within the recipient's program.
    (b) A recipient may not charge more for providing an appropriate 
education to handicapped persons than to nonhandicapped persons except 
to the extent that any additional charge is justified by a substantial 
increase in cost to the recipient.
    (c) A recipient to which this section applies that operates special 
education programs shall operate those programs in accordance with 
Secs. 18.435 and 18.436. Each recipient to which this section applies is 
subject to Secs. 18.434, 18.437, and 18.438.

                         Postsecondary Education

Sec. 18.441  Application.

    Sections 18.441 through 18.447 apply to postsecondary education 
programs and activities that receive or benefit from Federal financial 
assistance from the Department of Veterans Affairs and to recipients 
that operate or receive or benefit from Federal financial assistance for 
the operation of such programs or activities.

Sec. 18.442  Admissions and recruitment.

    (a) General. Qualified handicapped persons may not, on the basis of 
handicap, be denied admission or be subjected to discrimination in 
admission or recruitment by a recipient.
    (b) Admission. In administering its admission policies, a recipient;
    (1) May not apply limitations on the number or proportion of 
handicapped persons who may be admitted;
    (2) May not use any test or criterion for admission that has a 
disproportionate, adverse effect on handicapped persons or any class of 
handicapped persons unless:
    (i) The test or criterion, as used by the recipient, has been 
validated as a predictor of success in the education program or activity 
in question; and
    (ii) Alternate tests or criteria that have a less disproportionate, 
adverse effect are not shown by the Secretary to be available;

[[Page 29]]

    (3) Shall assure itself that:
    (i) Admissions tests are selected and administered to best ensure 
that, when a test is administered to an applicant who has a handicap 
that impairs sensory, manual, or speaking skills, the test results 
accurately reflect the applicant's aptitude or achievement level or 
whatever other factors the test purports to measure, rather than reflect 
the applicant's impaired sensory, manual, or speaking skills (except 
where those skills are the factors that the test purports to measure);
    (ii) Admissions tests that are designed for persons with impaired 
sensory, manual, or speaking skills are offered as often and in as 
timely a manner as are other admissions tests; and
    (iii) Admissions tests are administered in facilities that, on the 
whole, are accessible to handicapped persons; and
    (4) Except as provided in paragraph (c) of this section, may not 
make preadmission inquiries as to whether an applicant for admission is 
a handicapped person. After admission, the recipient may inquire on a 
confidential basis as to handicaps that may require accommodation.
    (c) Preadmission inquiry exception. When a recipient is taking 
remedial action to correct the effects of past discrimination under 
Sec. 18.406(a) or when a recipient is taking voluntary action to 
overcome the effects of conditions that resulted in limited 
participation in its federally assisted program or activity under 
Sec. 18.406(b), the recipient may invite applicants for admission to 
indicate whether and to what extent they are handicapped.
    (1) The recipient shall state clearly on any written questionnaire 
used for this purpose or make clear orally if no written questionnaire 
is used that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary action 
efforts; and
    (2) The recipient shall state clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential, that 
refusal to provide it will not subject the applicant to any adverse 
treatment, and that it will be used only in accordance with this part.
    (d) Validity studies. For the purpose of paragraph (b)(2) of this 
section, a recipient may base prediction equations on first year grades, 
but shall conduct periodic validity studies against the criterion of 
overall success in the education program or activity in question to 
monitor the general validity of the test scores.

Sec. 18.443  General treatment of students.

    (a) No qualified handicapped student shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any academic, 
research, occupational training, housing, health insurance, counseling, 
financial aid, physical education, athletics, recreation, 
transportation, other extracurricular, or other program or activity 
operated by a recipient to which this subpart applies.
    (b) A recipient that considers participation by students in 
education programs or activities not operated wholly by the recipient as 
part of, or equivalent to, an education program or activity operated by 
the recipient shall assure itself that the other education program or 
activity, as a whole, provides an equal opportunity for the 
participation of qualified handicapped persons.
    (c) A recipient to which this subpart applies may not, on the basis 
of handicap, exclude any qualified handicapped student from any course, 
course of study, or other part of its education program or activity.
    (d) A recipient shall operate its programs and activities in the 
most integrated setting appropriate.

Sec. 18.444  Academic adjustments.

    (a) Academic requirements. A recipient shall make necessary 
modifications to its academic requirements to ensure that these 
requirements do not discriminate or have the effect of discriminating, 
on the basis of handicap, against a qualified handicapped applicant or 
student. Modifications may include changes in the length of time 
permitted for the completion of degree requirements, substitution of 
specific courses required for the completion of degree requirements, and 
adaptation of the manner in which specific courses

[[Page 30]]

are conducted. Academic requirements that the recipient can demonstrate 
are essential to the program of instruction being pursued by the student 
or to any directly related licensing requirement will not be regarded as 
discriminatory within the meaning of this section.
    (b) Other rules. A recipient may not impose upon handicapped 
students other rules, such as the prohibition of tape recorders in 
classrooms or guide dogs in campus buildings, that have the effect of 
limiting the participation of handicapped students in the recipient's 
education program or activity.
    (c) Course examinations. In its course examinations or other 
procedures for evaluating students' academic achievement in its program, 
a recipient shall provide methods for evaluating the achievement of 
students who have a handicap that impairs sensory, manual, or speaking 
skills that will best ensure that the results of the evaluation 
represent the students' achievement in the course, rather than reflect 
the students' impaired sensory, manual, or speaking skills (except where 
such skills are the factors that the test purports to measure).
    (d) Auxiliary aids. (1) A recipient shall ensure that no qualified 
handicapped student is denied the benefits of, excluded from 
participation in, or otherwise subjected to discrimination under the 
education program or activity operated by the recipient because of the 
absence of educational auxiliary aids for students with impaired 
sensory, manual, or speaking skills.
    (2) Auxiliary aids may include taped texts, interpreters or other 
effective methods of making orally delivered materials available to 
students with hearing impairments, readers in libraries for students 
with visual impairments, classroom equipment adapted for use by students 
with manual impairments, and other similar services and actions. 
Recipients need not provide attendants, individually prescribed devices, 
readers for personal use or study, or other devices or services of a 
personal nature.

Sec. 18.445  Housing.

    (a) Housing provided by a recipient. A recipient that provides 
housing to its nonhandicapped students shall provide comparable, 
convenient, and accessible housing to qualified handicapped students at 
the same cost as to others. At the end of the transition period provided 
for in Sec. 18.422(e), this housing shall be available in sufficient 
quantity and variety so that the scope of handicapped students' choice 
of living accommodations is, as a whole, comparable to that of 
nonhandicapped students.
    (b) Other housing. A recipient that assists any agency, 
organization, or person in making housing available to any of its 
students shall assure itself that such housing is, as a whole, made 
available in a manner that does not result in discrimination on the 
basis of handicap.

Sec. 18.446  Financial and employment assistance to students.

    (a) Provision of financial assistance. (1) In providing financial 
assistance to qualified handicapped persons, a recipient may not:
    (i) On the basis of handicap, provide less assistance than is 
provided to nonhandicapped persons, limit eligibility for assistance, or 
otherwise discriminate; or
    (ii) Assist any entity or person that provides assistance to any of 
the recipient's students in a manner that discriminates against 
qualified handicapped persons on the basis of handicap.
    (2) A recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established under wills, trusts, bequests, or similar legal instruments 
that require awards to be made on the basis of factors that discriminate 
or have the effect of discriminating on the basis of handicap only if 
the overall effect of the award of scholarships, fellowships, and other 
forms of financial assistance is not discriminatory on the basis of 
handicap.

[[Page 31]]

    (b) Assistance in making available outside employment. A recipient 
that assists any agency, organization, or person in providing employment 
opportunities to any of its students shall assure itself that these 
employment opportunities, as a whole, are made available in a manner 
that would not violate Secs. 18.411 through 18.414 if the opportunities 
were provided by the recipient.
    (c) Employment of students by recipients. A recipient that employs 
any of its students may not do so in a manner that violates Secs. 18.411 
through 18.414.

Sec. 18.447  Nonacademic services.

    (a) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar programs and activities to 
any of its students, a recipient may not discriminate on the basis of 
handicap. A recipient that offers physical education courses or that 
operates or sponsors intercollegiate, club or intramural athletics shall 
provide to qualified handicapped students an equal opportunity for 
participation in these activities.
    (2) A recipient may offer to handicapped students physical education 
and athletic activities that are separate or different only if 
separation or differentiation is consistent with the requirements of 
Sec. 18.443(d) and only if no qualified handicapped student is denied 
the opportunity to compete for teams or to participate in courses that 
are not separate or different.
    (b) Counseling and placement services. A recipient that provides 
personal, academic, or vocational counseling, guidance, or placement 
services to its students shall provide these services without 
discrimination on the basis of handicap. The recipient shall ensure that 
qualified handicapped students are not counseled toward more restrictive 
career objectives than are nonhandicapped students with similar 
interests and abilities. This requirement does not preclude a recipient 
from providing factual information about licensing and certification 
requirements that may present obstacles to handicapped persons in their 
pursuit of particular careers.
    (c) Social organizations. A recipient that provides significant 
assistance to fraternities, sororities, or similar organizations shall 
assure itself that the membership practices of these organizations do 
not permit discrimination otherwise prohibited by Secs. 18.441 through 
18.447.

                       Health and Social Services

Sec. 18.451  Application.

    Subpart F applies to health, and other social service programs and 
activities that receive or benefit from Federal financial assistance 
from the Department of Veterans Affairs and to recipients that operate 
or receive or benefit from Federal financial assistance for the 
operation of such programs or activities.

Sec. 18.452  Health and other social services.

    (a) General. In providing health, or other social services or 
benefits, a recipient may not, on the basis of handicap:
    (1) Deny a qualified handicapped person these benefits or services;
    (2) Give a qualified handicapped person the opportunity to receive 
benefits or services that are not equal to those offered nonhandicapped 
persons.
    (3) Provide a qualified handicapped person with benefits or services 
that are not as effective (as defined in Sec. 18.404(b)(2)) as the 
benefits or services provided to others;
    (4) Provide benefits or services in a manner that limits or has the 
effect of limiting the participation of qualified handicapped persons; 
or
    (5) Provide different or separate benefits or services to 
handicapped persons except where necessary to provide qualified 
handicapped persons with benefits and services that are as effective as 
those provided to others.
    (b) Notice. A recipient that provides notice concerning benefits or 
services or written material concerning waivers of rights of consent to 
treatment shall ensure that qualified handicapped persons, including 
those with impaired sensory or speaking skills, are not denied effective 
notice because of their handicap.
    (c) Emergency treatment for the hearing impaired. A recipient 
hospital that provides health services or benefits shall

[[Page 32]]

establish a procedure for effective communication with persons with 
impaired hearing for the purpose of providing emergency care.
    (d) Auxiliary aids. (1) A recipient that employs fifteen or more 
persons shall provide appropriate auxiliary aids to persons with 
impaired sensory, manual, or speaking skills, where necessary to give 
these persons an equal opportunity to benefit from the service in 
question.
    (2) The Secretary may require recipients with fewer than fifteen 
employees to provide auxiliary aids where the provision of aids would 
not significantly impair the ability of the recipient to provide its 
benefits or services.
    (3) Auxiliary aids may include brailled and taped material, 
interpreters, and aids for persons with impaired hearing or vision.

Sec. 18.453  Drug and alcohol addicts.

    A recipient that operates a general hospital or outpatient facility 
may not discriminate, with regard to a drug or alcohol abuser or 
alcoholic who is suffering from a medical condition, in the admission of 
that person for treatment of the medical condition, or in the treatment 
of the medical condition because of the person's drug or alcohol abuse 
or alcoholism.

Sec. 18.454  Education of institutionalized persons.

    A recipient that operates or supervises a program or activity for 
persons who are institutionalized because of handicap and is responsible 
for providing training shall ensure that each qualified handicapped 
person, as defined in Sec. 18.403(k)(2), in its program or activity is 
provided an appropriate education, as defined in Sec. 18.433(b). Nothing 
in this section shall be interpreted as altering in any way the 
obligations of recipients under Secs. 18.431 through 18.439.

[45 FR 63268, Sept. 24, 1980; 51 FR 12702, Apr. 15, 1986]

                               Procedures

Sec. 18.461  Procedures.

    The procedural provisions applicable to Title VI of the Civil Rights 
Act of 1964 apply to this part. These procedures are found in Secs. 18.6 
through 18.11 and part 18b of this chapter.

 Appendix A to Subpart D to Part 18--Statutory Provisions to Which This 
                              Part Applies

1. Payments to State Homes (38 U.S.C. 1741-1743).
2. State home facilities for furnishing domiciliary, nursing home, and 
          hospital care (38 U.S.C. 8131-8137).
3. Transfers for nursing home care; adult day health care (38 U.S.C. 
          1720).
4. Sharing of medical facilities, equipment, and information (38 U.S.C. 
          8151-8157).
5. Assistance in establishing new state medical schools, grants to 
          affiliated medical schools; assistance to health manpower 
          training institutions (38 U.S.C. Chapter 82).
6. Approval of educational institutions (38 U.S.C. 104).
7. Medical care for survivors and dependents of certain veterans (38 
          U.S.C. 1713).
8. Space and office facilities for representatives of State employment 
          service (38 U.S.C. 7725(4)).
9. Space and office facilities for representatives of recognized 
          national service organizations (38 U.S.C. 5902(a)(2)).
10. All-volunteer force educational assistance, vocational 
          rehabilitation post-Vietnam era veterans educational 
          assistance; veterans educational assistance, survivors' and 
          dependents' educational assistance, and administration of 
          educational benefits (38 U.S.C. Chapters 30, 31, 32, 34, 35 
          and 36 respectively).
11. Treatment and rehabilitation for alcohol or drug dependence or abuse 
          disabilities (38 U.S.C. 1720A).
12. Aid to States for establishment, expansion, and improvement of 
          veterans cemeteries (38 U.S.C. 2408).
13. Department of Veterans Affairs health professional scholarship 
          program (38 U.S.C. 7601-7655).
14. Emergency veterans job training (Pub. L. 98-77, 97 Stat. 443-452).

[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986; 
51 FR 12702, Apr. 15, 1986]

            Subpart E--Nondiscrimination on the Basis of Age

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101, et seq.; 45 CFR part 90 (1979).

    Source: 50 FR 34133, Aug. 23, 1985, unless otherwise noted.

[[Page 33]]

                                 General

Sec. 18.501  Purpose.

    The purpose of these regulations is to set out Department of 
Veterans Affairs (VA) policies and procedures under the Age 
Discrimination Act of 1975 and the governmentwide age discrimination 
regulations at 45 CFR part 90. The Act and the governmentwide 
regulations prohibit discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Act and the 
governmentwide regulations permit federally assisted programs and 
activities, and recipients of Federal funds, to continue to use age 
distinctions and factors other than age which meet the requirements of 
the Act and its implementing regulations.

(Authority: 42 U.S.C. 6101-6107)

[50 FR 34133, Aug. 23, 1985, as amended at 54 FR 34984, Aug. 23, 1989]

Sec. 18.502  Application.

    (a) These regulations apply to any program or activity receiving 
Federal financial assistance provided by VA directly or through another 
recipient.
    (b) These regulations do not apply to:
    (1) An age distinction contained in that part of a Federal, State, 
or local statute or ordinance adopted by an elected, general purpose 
legislative body which:
    (i) Provides any benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program, except any program or activity receiving Federal 
financial assistance for public service employment under the Job 
Training Partnership Act, 29 U.S.C. 1501, et seq.

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.503  Definitions.

    As used in these regulations:
    (a) Act means the Age Discrimination Act of 1975, as amended (Title 
III of Pub. L. 94-135, 42 U.S.C. 6101-6107).
    (b) Action means any act, activity, policy, rule, standard, or 
method of administration; or the use of any policy, rule, standard, or 
method of administration.
    (c) Secretary means the Secretary of Veterans Affairs or designees.
    (d) Age means how old a person is, or the number of elapsed years 
from the date of a person's birth.
    (e) Age discrimination means unlawful treatment based on age.
    (f) Age distinction means any action using age or an age-related 
term.
    (g) Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example, children, adult, older 
persons, but not student).
    (h) Day means calendar day.
    (i) Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which a 
Federal agency or department provides or otherwise makes available 
assistance in the form of:
    (1) Funds; or
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if the 
Federal share of its market value is not returned to the Federal 
Government.
    (j) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended, directly or 
through another recipient. Recipient includes any successor, assignee, 
or transferee, but excludes the ultimate beneficiary of the assistance.
    (k) Subrecipient means any of the entities in the definition of 
recipient to which a recipient extends or passes on Federal financial 
assistance. A subrecipient is generally regarded as a recipient of 
Federal financial assistance

[[Page 34]]

and has all the duties of a recipient in these regulations.
    (l) United States means the fifty States, the District of Columbia, 
Puerto Rico, the Virgin Islands, the Canal Zone, the Trust Territories 
of the Pacific Islands, the Northern Marianas, and the territories and 
possessions of the United States.

(Authority: 42 U.S.C. 6101-6107)

              Standards for Determining Age Discrimination

Sec. 18.511  Rules against age discrimination.

    The rules in this section are limited by the exceptions contained in 
Secs. 18.513 and 18.514 of these regulations.
    (a) General rule. No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under, any program or activity receiving 
Federal financial assistance.
    (b) Specific rules. A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual 
licensing, or other arrangements, use age distinctions or take any other 
actions which have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination under, a program or activity receiving 
Federal financial assistance; or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance.
    (c) The specific forms of age discrimination listed in paragraph (b) 
of this section do not necessarily constitute a complete list.

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.512  Definitions of ``normal operation'' and ``statutory 
          objective.''

    For the purpose of these regulations, the terms normal operation and 
statutory objective shall have the following meaning:
    (a) Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objectives.
    (b) Statutory objective means any purpose of a program or activity 
expressly stated in any Federal statute, State statute, or local statute 
or ordinance adopted by an elected, general purpose legislative body.

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.513  Exceptions to the rules against age discrimination; normal 
          operation or statutory objective of any program or activity.

    A recipient is permitted to take an action, otherwise prohibited by 
Sec. 18.511, if the action reasonably takes into account age as a factor 
necessary to the normal operation or the achievement of any statutory 
objective of a program or activity. An action reasonably takes into 
account age as a factor necessary to the normal operation or the 
achievement of any statutory objective of a program or activity, if:
    (a) Age is used as a measure or approximation of one or more other 
characteristics; and
    (b) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity; and
    (c) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (d) The other characteristic(s) are impractical to measure directly 
on an individual basis.

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.514  Exceptions to the rules against age discrimination; 
          reasonable factors other than age.

    A recipient is permitted to take an action otherwise prohibited by 
Sec. 18.511 which is based on a factor other than age, even though that 
action may have a disproportionate effect on persons of different ages. 
An action may be based on a factor other than age only if the factor 
bears a direct and substantial relationship to the normal operation of 
the program or activity or to the achievement of a statutory objective.

(Authority: 42 U.S.C. 6101-6107)

[[Page 35]]

Sec. 18.515  Burden of proof.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Secs. 18.513 and 18.514 is on the 
recipient of Federal financial assistance.

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.516  Affirmative action by recipients.

    Even in the absence of a finding of discrimination, a recipient may 
take affirmative action to overcome the effects of conditions that 
resulted in limited participation in the recipient's program or activity 
on the basis of age.

(Authority: 42 U.S.C. 6101-6107)

      Responsibilities of Department of Veterans Affairs Recipients

Sec. 18.531  General responsibilities.

    Each VA recipient must ensure that its programs and activities are 
in compliance with the Act and these regulations.

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.532  Notice of subrecipients.

    Where a recipient passes on Federal financial assistance from VA to 
programs and activities of subrecipients, the recipient shall provide 
the subrecipients written notice of their obligations under the Act and 
these regulations with respect to such programs and activities.

(Approved by the Office of Management and Budget under control number 
2900-0400)

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.533  Assurance of compliance and recipient assessment of age 
          distinctions.

    (a) Each recipient of Federal financial assistance from VA shall 
sign a written assurance as specified by the Secretary that it will 
comply with the Act and these regulations.
    (b) Recipient assessment of age distinctions. (1) As part of a 
compliance review under Sec. 18.541 or complaint investigation under 
Sec. 18.544, the Secretary may require a recipient employing the 
equivalent of 15 of more employees to complete a written self-
evaluation, in a manner specified by the responsible agency official, of 
any age distinction imposed in its programs or activities receiving 
Federal financial assistance from VA to assess the recipient's 
compliance with the Act.
    (2) Whenever an assessment indicates a violation of the Act or these 
regulations, the recipient shall take corrective action.

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.534  Information requirements.

    Each recipient shall:
    (a) Make available upon request to VA information necessary to 
determine whether the recipient is complying with the Act and these 
regulations.
    (b) Permit reasonable access by VA to the books, records, accounts, 
and other recipient facilities and sources of information to the extent 
necessary to determine whether the recipient is in compliance with the 
Act and these regulations.

(Authority: 42 U.S.C. 6101-6107)

         Investigation, Conciliation, and Enforcement Procedures

Sec. 18.541  Compliance reviews.

    (a) VA may conduct compliance reviews and preaward reviews of 
recipients or use other similar procedures that will permit it to 
investigate and correct violations of the Act and these regulations. VA 
may conduct these reviews even in the absence of a complaint against a 
recipient. The review may be as comprehensive as necessary to determine 
whether a violation of these regulations has occurred.
    (b) If a compliance review or preaward review indicates a violation 
of the Act or these regulations, VA will attempt to achieve voluntary 
compliance with the Act. If voluntary compliance cannot be achieved, VA 
may institute enforcement proceedings as described in Sec. 18.546.

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.542  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with VA alleging discrimination 
prohibited by the Act or these regulations based on an action occurring 
on or after July 1,

[[Page 36]]

1979. A complainant shall file a complaint within 180 days from the date 
the complainant first had knowledge of the alleged act of 
discrimination. However, for good cause shown, VA may extend this time 
limit. Complaints may be submitted to the Director, Office of Equal 
Opportunity (06B), Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420.
    (b) VA will attempt to facilitate the filing of complaints wherever 
possible, including taking the following measures:
    (1) Acknowledging receipt and acceptance of a complaint in writing.
    (2) Accepting as a sufficient complaint, any written statement which 
identifies the parties involved and the date the complainant first had 
knowledge of the alleged violation, describes generally the action or 
practice complained of, and is signed by the complainant.
    (3) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint.
    (4) Widely disseminating information regarding the obligations of 
recipients under the Act and these regulations.
    (5) Notifying the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have a 
representative at all stages of the complaint procedure.
    (6) Notifying the complainant and the recipient (or their 
representatives) of their right to contact VA for information and 
assistance regarding the complaint resolution process.
    (c) VA will refer a complaint of discrimination based on age to 
another appropriate Federal agency when the complaint is outside the 
jurisdiction of VA. VA will notify the complainant in writing that the 
complaint has been referred; explain the reason why the complaint is not 
within the jurisdiction of VA; and give the complainant the name, 
agency, and address of the official to whom the complaint was referred.

(Approved by the Office of Management and Budget under control number 
2900-0401)

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.543  Mediation.

    (a) Referral of complaints for mediation. VA will refer to the 
Federal Mediation and Conciliation Service all complaints that:
    (1) Fall within the jurisdiction of the Act and these regulations; 
and
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or make 
an informed judgment that an agreement is not possible. However, the 
recipient and the complainant need not meet with the mediator at the 
same time.
    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have the 
complainant and the recipient sign it. The mediator shall send a copy of 
the agreement to VA. VA will take no further action on the complaint 
unless the complainant or the recipient fails to comply with the 
agreement.
    (d) The mediator shall protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjunctive proceeding, produce any document, or 
otherwise disclose any information obtained in the course of the 
mediation process without prior approval of the head of the mediation 
agency.
    (e) VA will use the mediation process for a maximum of 60 days after 
the responsible agency official receives a complaint.
    (f) Mediation ends if:
    (1) 60 days elapse from the time the responsible agency official 
receives the complaint; or
    (2) Prior to the end of that 60-day period, an agreement is reached; 
or
    (3) Prior to the end of that 60-day period, the mediator determines 
that an agreement cannot be reached.
    (g) The mediator shall return unresolved complaints to VA.

(Authority: 42 U.S.C. 6101-6107)

[[Page 37]]

Sec. 18.544  Investigation.

    (a) Informal investigation. (1) VA will investigate complaints that 
are reopened because of a violation of a mediation agreement.
    (2) As part of the initial investigation VA will use informal fact 
finding methods, including joint or separate discussions with the 
complainant and recipient to establish the facts and, if possible, 
settle the complaint on terms that are mutually agreeable to the 
parties. VA may seek the assistance of any involved State program 
agency.
    (3) VA will put any agreement in writing and have it signed by the 
parties and an authorized official from the VA.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of VA, including compliance reviews and investigation 
of other complaints which may involve the recipient.
    (5) A settlement need not contain an admission of discrimination or 
other wrongdoing by the recipient nor should it be considered a finding 
of discrimination against the recipient.
    (b) Formal investigation. If VA cannot resolve the complaint through 
informal investigation, it will begin to develop formal findings through 
further investigation of the complaint. If the investigation indicates a 
violation of these regulations, VA will attempt to obtain voluntary 
compliance. If voluntary compliance cannot be achieved, VA may institute 
enforcement proceedings as described in Sec. 18.546.

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.545  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or these 
regulations; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of VA's investigation, conciliation, and enforcement process.

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.546  Compliance procedure.

    (a) VA may enforce the Act and these regulations through:
    (1) Termination of Federal financial assistance from VA with respect 
to a recipient's program or activity that has violated the Act or these 
regulations. The determination of the recipient's violation may be made 
only after a recipient has had an opportunity for a hearing on the 
record before an administrative law judge. Therefore, cases which are 
settled in mediation, or prior to a hearing, will not involve 
termination of a recipient's Federal financial assistance from VA.
    (2) Any other means authorized by law including but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations of the recipient created 
by the Act or these regulations.
    (ii) Use of any requirement of or referral to any Federal, State, or 
local government agency that will have the effect of correcting a 
violation of the Act or these regulations.
    (b) VA will limit any termination under paragraph (a)(1) of this 
section to the particular program or activity or part of such program 
and activity of a recipient that VA finds to be in violation of the Act 
or these regulations. VA will not base any part of a termination on a 
finding with respect to any program or activity of the recipient which 
does not receive Federal financial assistance from VA.
    (c) VA will take no action under paragraph (a) of this section 
until:
    (1) The Secretary has advised the recipient of its failure to comply 
with the Act and these regulations and has determined that voluntary 
compliance cannot be obtained.
    (2) Thirty days have elapsed after the Secretary has sent a written 
report of the circumstances and grounds of the action to the committees 
of the Congress having legislative jurisdiction over the Federal program 
or activity involved. The Secretary will file a report whenever any 
action is taken under paragraph (a) of this section.
    (d) VA also may defer granting new Federal financial assistance from 
VA to a recipient when a hearing under

[[Page 38]]

paragraph (a)(1) of this section is initiated.
    (1) New Federal financial assistance from VA includes all assistance 
for which VA requires an application or approval, including renewal or 
continuation of existing activities, or authorization of new activities 
during the deferral period. New Federal financial assistance from VA 
does not include increases in funding resulting solely from a change in 
the formula or method of computing awards, nor does it include 
assistance approved prior to the beginning of a hearing under paragraph 
(a)(1) of this section.
    (2) VA will not begin a deferral until the recipient has received a 
notice of an opportunity for a hearing under paragraph (a)(1) of this 
section. VA will not continue a deferral for more than 60 days unless a 
hearing has begun within that time or the time for beginning the hearing 
has been extended by mutual consent of the recipient and the Secretary. 
VA will not continue a deferral for more than 30 days after the close of 
the hearing, unless the hearing results in a finding against the 
recipient.

(Authority: 42 U.S.C. 6101-6107)

Sec. 18.547  Hearings, decisions, post-termination proceedings.

    Certain VA procedural provisions applicable to Title VI of the Civil 
Rights Act of 1964 apply to VA enforcement of these regulations. They 
are found at Secs. 18.9 through 18.11 and part 18b of this title.

(Authority: 42 U.S.C. 6101-1607)

Sec. 18.548  Remedial action by recipient.

    Where VA finds that a recipient has discriminated on the basis of 
age, the recipient shall take any remedial action that VA may require to 
overcome the effects of the discrimination. If another recipient 
exercises control over the recipient that has discriminated, VA may 
require both recipients to take remedial action.

(Authority: 42 U.S.C. 6101-1607)

Sec. 18.549  Alternate funds disbursal procedure.

    (a) When VA withholds funds from a recipient under these 
regulations, the Secretary may disburse the withheld funds directly to 
an alternate recipient: Any public or non-profit private organization or 
agency, or State or political subdivision of the State.
    (b) The Secretary will require any alternate recipient to 
demonstrate;
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the program or activity.

(Authority: 42 U.S.C. 6101-1607)

Sec. 18.550  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and VA has made no finding with regard to the complaint; or
    (2) VA issues any finding in favor of the recipient.
    (b) If VA fails to make a finding within 180 days or issues a 
finding in favor of the recipient, VA will:
    (1) Promptly advise the complainant of this fact; and
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief; and
    (3) Inform the complainant that:
    (i) The complainant may bring a civil action only in a United States 
district court for the district in which the recipient is found or 
transacts business;
    (ii) A complainant prevailing in a civil action has the right to be 
awarded the costs of the action, including reasonable attorney's fees, 
but the complainant must demand these costs in the complaint;
    (iii) Before commencing the action, the complainant shall give 30 
days notice by registered mail to the Secretary, the Attorney General of 
the United States, and the recipient;
    (iv) The notice must state: The alleged violation of the Act; the 
relief requested; the court in which the complainant is bringing the 
action; and, whether or not attorney's fees are demanded in the event 
the complainant prevails; and
    (v) The complainant may not bring action if the same alleged 
violations of

[[Page 39]]

the Act by the same recipient is the subject of a pending action in any 
court of the United States.

(Authority: 42 U.S.C. 6101-6107)

 Appendix A to Subpart E to Part 18--Statutory Provisions to Which This 
                             Subpart Applies

    1. Approval of educational institutions (38 U.S.C. 104).
    2. Space and office facilities for representatives of State 
employment services (38 U.S.C. 7725(1)).
    3. Medical care for survivors and dependents of certain veterans (38 
U.S.C. 1713).
    4. Transfers for nursing home care; adult day health care (38 U.S.C. 
1720).
    5. Treatment and rehabilitation for alcohol or drug dependence or 
abuse disabilities (38 U.S.C. 1720A).
    6. Payments to State Homes (38 U.S.C. 1741-1743).
    7. Aid to States for establishment, expansion, and improvement of 
veterans' cemeteries (38 U.S.C. 2408).
    8. Vocational Rehabilitation; Post-Vietnam Era Veterans' Educational 
Assistance; Survivors' and Dependents' Educational Assistance; and 
Administration of Educational Benefits (38 U.S.C. Chapters 31, 32, 34, 
35 and 36 respectively).
    9. Space and office facilities for representatives of recognized 
national organizations (38 U.S.C. 5902(a)(2)).
    10. Department of Veterans Affairs Health Professional Scholarship 
Program (38 U.S.C. 7601-7655).
    11. State Home Facilities for Furnishing Domiciliary, Nursing Home 
and Hospital Care (38 U.S.C. 8131-8137).
    12. Sharing of Medical Facilities, Equipment and Information (38 
U.S.C. 8151-8157).
    13. Assistance in Establishing New State Medical Schools; Grants to 
Affiliated Medical Schools; Assistance to Health Manpower Training 
Institutions (38 U.S.C. Chapter 82).
    14. Emergency Veterans' Job Training (Pub. L. 98-77, 97 Stat. 443-
452).

 Appendix B to Subpart E to Part 18--List of Age Distinctions Contained 
   in Statutes and Regulations Governing Federal Financial Assistance 
             Programs of the Department of Veterans Affairs

    Section 90.31(f) of the governmentwide regulations (45 CFR part 90) 
requires each Federal agency to publish an appendix to its final 
regulations containing a list of age distinctions in Federal statutes 
and regulations affecting financial assistance administered by the 
agency. This appendix is VA's list of age distinctions contained in 
Federal statutes and VA regulations which:
    (1) Provide benefits or assistance to persons based upon age; or
    (2) Establish criteria for participation in age-related terms; or
    (3) Describe intended beneficiaries or target groups in age-related 
terms.
    Appendix B deals only with VA's programs of financial assistance 
covered by the Age Discrimination Act. It does not list age distinctions 
used by VA in its direct assistance programs, such as veterans' 
compensation. Also, this appendix contains only age distinctions in 
Federal statutes and VA regulations in effect on January 1, 1985.
    This appendix has two sections: A list of age distinctions in 
Federal statutes, and a list of age distinctions in VA regulations. The 
first column contains the name of the program; the second column has the 
statute name and U.S. Code citation for statutes, or the regulation name 
and Code of Federal Regulations citation for regulations; the third 
column contains the section number of the statute or regulation and the 
description of the age distinction; and the fourth column cites the 
Catalog of Federal Domestic Assistance number for the program(s) 
affected where it is available.

[[Page 40]]



   Age Distinctions in Statutes Governing Federal Financial Assistance Programs of the Department of Veterans
                                                     Affairs
----------------------------------------------------------------------------------------------------------------
                 Program                            Statute               Section and Age Distinction      CFDA
----------------------------------------------------------------------------------------------------------------
Veterans' Benefits......................  Section 101 of the           Section 101(4)(A) defines the
                                           Veterans' Benefits Act of    term ``child'' for the purposes
                                           1957, as amended; 38         of Title 38, U.S.C. (except for
                                           U.S.C. 101.                  chapter 19 and section 8502(b)
                                                                        of Title 38) as ``a person who
                                                                        is unmarried and--(i) who is
                                                                        under the age of eighteen
                                                                        years; (ii) who, before
                                                                        attaining the age of eighteen
                                                                        years, became permanently
                                                                        incapable of self-support; or
                                                                        (iii) who, after attaining the
                                                                        age of eighteen years and until
                                                                        completion of education or
                                                                        training (but not after
                                                                        attaining the age of twenty-
                                                                        three years), is pursuing a
                                                                        course of instruction at an
                                                                        approved educational
                                                                        institution; and who is a
                                                                        legitimate child, a legally
                                                                        adopted child, a stepchild who
                                                                        is a member of a veteran's
                                                                        household or was a member at
                                                                        the time of the veteran's
                                                                        death, or an illegitimate child
                                                                        but, as to the alleged father,
                                                                        only if acknowledged in writing
                                                                        signed by him, or if he has
                                                                        been judicially ordered to
                                                                        contribute to the child's
                                                                        support or has been, before his
                                                                        death, judicially decreed to be
                                                                        the father of such child, or if
                                                                        he is otherwise shown by
                                                                        evidence statisfactory to the
                                                                        Secretary to be the father or
                                                                        such child. . . .''.
                                                                       Section 101(4)(B) provides that
                                                                        for the purposes of section
                                                                        101(4)(A) of Title 38, in the
                                                                        case of an adoption under the
                                                                        laws of any jurisdiction other
                                                                        than a State, a person residing
                                                                        outside any of the States shall
                                                                        not be considered a legally
                                                                        adopted child of a veteran
                                                                        during the lifetime of that
                                                                        veteran, unless, among other
                                                                        things, such a person was less
                                                                        than eighteen years of age at
                                                                        the time of the adoption.
Approval of Educational Institutions....  Section 104 of the           Section 104(a) authorizes the
                                           Veterans' Benefits Act of    Secretary to approve or
                                           1957, as amended, 38         disapprove an educational
                                           U.S.C. 104.                  institution for the purpose of
                                                                        determining whether or not
                                                                        benefits are payable under
                                                                        Title 38, U.S.C. (except
                                                                        chapter 15 of title 38) for a
                                                                        child over the age of eighteen
                                                                        years and under the age of
                                                                        twenty-three years who is
                                                                        attending a school, college,
                                                                        academy, seminary, technical
                                                                        institution, university, or
                                                                        other educational institution.
                                                                       Section 104(b) provides that the
                                                                        Secretary may not approve an
                                                                        educational institution under
                                                                        section 104 of Title 38, unless
                                                                        the institution has agreed to
                                                                        report the termination of
                                                                        attendance of any child. If the
                                                                        educational institution fails
                                                                        to report any such termination
                                                                        promptly, the approval of the
                                                                        Secretary shall be withdrawn.
Civilian Health and Medical Program of    Section 103(b) of the        Section 1713(a) authorizes the     64.009
 the Department of Veterans Affairs        Veterans Health Care         Secretary to provide medical
 (CHAMPA).                                 Expansion Act of 1973, as    care to: ``(1) The spouse or
                                           amended; 38 U.S.C. 1713.     child of a veteran who has a
                                                                        total disability, permanent in
                                                                        nature, resulting from a
                                                                        service-connected disability,
                                                                        (2) the surviving spouse or
                                                                        child of a veteran who (A) died
                                                                        as a result of a service-
                                                                        connected disability, or (B) at
                                                                        the time of death had a total
                                                                        disability permanent in nature,
                                                                        resulting from a service-
                                                                        connected disability, and (3)
                                                                        the surviving spouse or child
                                                                        of a person who died in the
                                                                        active military, naval, or air
                                                                        service in the line of duty and
                                                                        not due to such person's own
                                                                        misconduct, who are not
                                                                        otherwise eligible for medical
                                                                        care under Chapter 55 of Title
                                                                        10, U.S.C. (CHAMPUS).

[[Page 41]]


                                                                       Section 1713(c) provides that
                                                                        for the purposes of this
                                                                        program, ``a child between the
                                                                        ages of eighteen and twenty-
                                                                        three (1) who is eligible for
                                                                        benefits under subsection (a)
                                                                        of this section, (2) who is
                                                                        pursuing a full-time course of
                                                                        instruction at an educational
                                                                        institution, approved under
                                                                        Chapter 36 of this title, and
                                                                        (3) who while pursuing such
                                                                        course of instruction, incurs a
                                                                        disabling illness or injury . .
                                                                        . which results in such child's
                                                                        inability to continue or resume
                                                                        such child's chosen program of
                                                                        education . . . shall remain
                                                                        eligible for benefits under
                                                                        this section until the end of
                                                                        the six-month period beginning
                                                                        on the date the disability is
                                                                        removed, the end of the two-
                                                                        year period beginning on the
                                                                        date of the onset of the
                                                                        disability, or the twenty-third
                                                                        birthday of the child,
                                                                        whichever occurs first''.
VA Hospital, Domiciliary or Nursing Home  Section 510 of the           Section 1710 authorizes the        64.009
 Care.                                     Veterans' Benefits Act of    Secretary, within the limits of   64.010
                                           1957, amended; 38 U.S.C.     VA facilities, to furnish         64.015
                                           1710.                        hospital care or nursing home     64.016
                                                                        care. Among the persons
                                                                        eligible for such care are
                                                                        veterans with a nonservice-
                                                                        connected disability if they
                                                                        are sixty-five years of age or
                                                                        older.
Post-Vietnam Era Veterans' Educational    Post Vietnam Era Veterans'   Section 3201 states that the       64.120
 Assistance.                               Educational Act of 1977,     purpose of Chapter 32 of Title
                                           as amended; U.S.C. Chapter   38, U.S.C. is: ``(1) To provide
                                           32.                          educational asssistance to
                                                                        those men and women who enter
                                                                        the Armed Forces after December
                                                                        31, 1976, (2) to assist young
                                                                        men and women in obtaining an
                                                                        education they might not
                                                                        otherwise be able to afford,
                                                                        and (3) to promote and assist
                                                                        the all volunteer military
                                                                        program of the United States by
                                                                        attracting qualified men and
                                                                        women to serve in the Armed
                                                                        Forces''.
Veterans' Educational Assistance........  Section 2 of the Veterans'   Section 3451 states that the       64.111
                                           Readjustment Benefits Act    education program created by
                                           of 1966, amended; 38         this chapter is for the purpose
                                           U.S.C. Chapter 34.           of: `` . . . (1) Enhancing and
                                                                        making more attractive service
                                                                        in the Armed Forces of the
                                                                        United States, (2) extending
                                                                        the benefits of higher
                                                                        education to qualified and
                                                                        deserving young persons who
                                                                        might not otherwise be able to
                                                                        afford such an education, (3)
                                                                        providing vocational
                                                                        readjustment and restoring lost
                                                                        educational opportunities to
                                                                        those service men and women
                                                                        whose careers have been
                                                                        interrupted or impeded by
                                                                        reason of active duty after
                                                                        January 31, 1955, and (4)
                                                                        aiding such persons in
                                                                        attaining the vocational and
                                                                        educational status which they
                                                                        might normally have aspired to
                                                                        and obtained had they not
                                                                        served their country''.
                                                                       Section 3492(b) authorizes the
                                                                        Secretary to pay to an eligible
                                                                        veteran receiving tutorial
                                                                        assistance pursuant to section
                                                                        3492(a) of this chapter, the
                                                                        cost of such tutorial
                                                                        assistance, subject to certain
                                                                        limits, upon certification by
                                                                        the educational institution
                                                                        that `` . . . (2) the tutor
                                                                        chosen to perform such
                                                                        assistance is qualified and is
                                                                        not the eligible veteran's
                                                                        parent, spouse, child (whether
                                                                        or not married or over eighteen
                                                                        years of age), brother, or
                                                                        sister; and (3) the charges for
                                                                        such assistance do not exceed
                                                                        the customary charges for such
                                                                        tutorial assistance''.

[[Page 42]]


Survivors' and Dependents' Educational    War Orphans' Educational     Section 3500 states that ``the     64.117
 Assistance.                               Assistance Act of 1956, as   educational program established
                                           amended; 38 U.S.C. Chapter   by this chapter is for the
                                           35.                          purpose of providing
                                                                        opportunities for education to
                                                                        children whose education would
                                                                        otherwise be impeded or
                                                                        interrupted by reason of the
                                                                        disability or death of a parent
                                                                        from a disease or injury
                                                                        incurred or aggravated in the
                                                                        Armed Forces after the
                                                                        beginning of the Spanish-
                                                                        American War, and for the
                                                                        purpose of aiding such children
                                                                        in attaining the educational
                                                                        status which they might have
                                                                        aspired to and attained but for
                                                                        the disability or death of such
                                                                        parent. The Congress further
                                                                        declares that the educational
                                                                        program extended to the
                                                                        surviving spouses of veterans
                                                                        who died of service-connected
                                                                        total disabilities and to
                                                                        spouses of veterans with a
                                                                        service-connected total
                                                                        disability permanent in nature
                                                                        is for the purpose of assisting
                                                                        them in preparing to support
                                                                        themselves and their families
                                                                        at a standard of living level
                                                                        which the veteran, but for the
                                                                        veteran's death or service
                                                                        disability, could have expected
                                                                        to provide for the veteran's
                                                                        family''.
                                                                       Section 3501 defines the term
                                                                        ``eligible person'' as: ``(A) a
                                                                        child of a person who--(i) died
                                                                        of a service-connected
                                                                        disability, (ii) has a total
                                                                        disability permanent in nature
                                                                        resulting from a service-
                                                                        connected disability, or who
                                                                        died while a disability so
                                                                        evaluated was in existence or
                                                                        (iii) at the time of
                                                                        application for benefits under
                                                                        this chapter is a member of the
                                                                        Armed Forces serving on active
                                                                        duty listed, pursuant to
                                                                        section 556 of Title 37
                                                                        [U.S.C.] and regulations issued
                                                                        thereunder, by the Secretary
                                                                        concerned in one or more of the
                                                                        following categories . . . for
                                                                        a total of ninety days: (A)
                                                                        missing in action, (B) captured
                                                                        in line of duty by a hostile
                                                                        force, or (C) forcibly detained
                                                                        or interned in line of duty by
                                                                        a foreign government or power,
                                                                        . . .'' Subparagraph (a)(2) of
                                                                        this section provides that the
                                                                        term ``child'' includes
                                                                        individuals who are married and
                                                                        individuals who are above the
                                                                        age of twenty-three years.

[[Page 43]]


                                                                       Section 3512 establishes periods
                                                                        of eligibility. Provides that
                                                                        the educational program to
                                                                        which an eligible child within
                                                                        the meaning of this chapter is
                                                                        entitled to may be afforded,
                                                                        ``. . . during the period
                                                                        beginning on the person's
                                                                        eighteenth birthday, or on the
                                                                        successful completion of the
                                                                        person's secondary schooling,
                                                                        whichever first occurs, and
                                                                        ending on the person's twenty-
                                                                        sixth birthday, except that--
                                                                        (1) if the person is above the
                                                                        age of compulsory school
                                                                        attendance under applicable
                                                                        State law, and the Secretary
                                                                        determines that the person's
                                                                        best interests will be served
                                                                        thereby, such period may begin
                                                                        before the person's eighteenth
                                                                        birthday; (2) if the person has
                                                                        a mental or physical handicap,
                                                                        and . . . the person's best
                                                                        interests will be served by
                                                                        pursuing a program of special
                                                                        restorative training or a
                                                                        specialized course of
                                                                        vocational training approved
                                                                        under section 3536 of this
                                                                        title, such period may begin
                                                                        before the person's fourteenth
                                                                        birthday; (3) if the Secretary
                                                                        finds that the parent from whom
                                                                        eligibility is derived has a
                                                                        service-connected total
                                                                        disability permanent in nature,
                                                                        or if the death of the parent
                                                                        from whom eligibility is
                                                                        derived occurs, after the
                                                                        eligible person's eighteenth
                                                                        birthday but before the
                                                                        person's twenty-sixth birthday,
                                                                        then (unless paragraph (4)
                                                                        applies) such period shall end
                                                                        8 years after, whichever date
                                                                        last occurs: (A) the date on
                                                                        which the Secretary first finds
                                                                        that the parent from whom
                                                                        eligibility is derived has a
                                                                        service-connected total
                                                                        disability permanent in nature,
                                                                        or (B) the date of death of the
                                                                        parent from whom eligibility is
                                                                        derived; (4) if the person
                                                                        serves on duty with the Armed
                                                                        Forces as an eligible person
                                                                        after the person's eighteenth
                                                                        birthday but before the
                                                                        person's twenty-sixth birthday,
                                                                        then such period shall end 8
                                                                        years after the person's first
                                                                        discharge or release from such
                                                                        duty with the Armed Forces . .
                                                                        . in no event shall such period
                                                                        be extended beyond the person's
                                                                        thirty-first birthday by reason
                                                                        of this paragraph; and (5)(A)
                                                                        if the person becomes eligible
                                                                        by reason of the the provisions
                                                                        of section 3501(a)(1)(A)(ii) of
                                                                        this title after the person's
                                                                        eighteenth birthday but before
                                                                        the person's twenty-sixth
                                                                        birthday, then (unless clause
                                                                        (4) of this section applies)
                                                                        such period shall end eight
                                                                        years after the date on which
                                                                        the person becomes eligible by
                                                                        reason of such provisions, but
                                                                        in no event shall such period
                                                                        be extended beyond the person's
                                                                        thirty-first birthday by reason
                                                                        of this clause. . . .''.
                                                                       Section 3513 provides that the
                                                                        parent or guardian of a person
                                                                        or the eligible person (if such
                                                                        person has attained legal
                                                                        majority) for whom the
                                                                        educational assistance is
                                                                        sought under Chapter 35 shall
                                                                        submit an application to the
                                                                        Secretary, which shall be in
                                                                        such form and contain such
                                                                        information as the Secretary
                                                                        shall prescribe.

[[Page 44]]


                                                                       Section 3562 provides that the
                                                                        commencement of a program of
                                                                        education or special
                                                                        restorative training under
                                                                        Chapter 35 shall be a bar,
                                                                        ``(1) to subsequent payments of
                                                                        compensation, dependency and
                                                                        indemnity compensation, or
                                                                        pension based on a death of a
                                                                        parent to an eligible person
                                                                        over the age of eighteen by
                                                                        reason of pursuing a course in
                                                                        an educational institution, or
                                                                        (2) to increased rates, or
                                                                        additional amounts of
                                                                        compensation, dependency and
                                                                        indemnity compensation, or
                                                                        pension because of such a
                                                                        person whether eligibility is
                                                                        based upon the death or upon
                                                                        the total permanent disability
                                                                        of the parent''.
                                                                       Section 3563 states that ``The
                                                                        Secretary shall notify the
                                                                        parent or guardian of each
                                                                        eligible person as defined in
                                                                        section 3501(a)(1)(A) of this
                                                                        title of the educational
                                                                        assistance available to such
                                                                        person under Chapter 35. Such
                                                                        notification shall be provided
                                                                        not later then the month in
                                                                        which such eligible person
                                                                        attains such person's
                                                                        thirteenth birthday or as soon
                                                                        thereafter as feasible''.
----------------------------------------------------------------------------------------------------------------


  Age Distinctions in Regulations Governing Federal Financial Assistance Programs of the Department of Veterans
                                                     Affairs
----------------------------------------------------------------------------------------------------------------
                 Program                           Regulation             Section and Age Distinction      CFDA
----------------------------------------------------------------------------------------------------------------
Veterans' Benefits......................  Adjudication (38 CFR part    Section 3.57 defines the term
                                           3).                          ``child'' of a veteran as, ``.
                                                                        . . an unmarried person who is
                                                                        a legitimate child, a child
                                                                        legally adopted before the age
                                                                        of 18 years, a stepchild who
                                                                        acquired that status before the
                                                                        age of 18 years and who is a
                                                                        member of the veteran's
                                                                        household or was a member of
                                                                        the veteran's household at the
                                                                        time of the veteran's death, or
                                                                        an illegitimate child; and (i)
                                                                        who is under the age of 18
                                                                        years; or (ii) who, before
                                                                        reaching the age of 18 years,
                                                                        became permanently incapable of
                                                                        self-support; or (iii) who,
                                                                        after reaching the age of 18
                                                                        years and until completion of
                                                                        education or training (but not
                                                                        after reaching the age of 23
                                                                        years) is pursuing a course of
                                                                        instruction at an approved
                                                                        educational institution. (2)
                                                                        For the purposes of determining
                                                                        entitlement of benefits based
                                                                        on a child's school attendance,
                                                                        the term ``child'' of the
                                                                        veteran also includes the
                                                                        following unmarried persons:
                                                                        (i) A person who was adopted by
                                                                        the veteran between the ages of
                                                                        18 or 23 years. (ii) A person
                                                                        who became a stepchild of a
                                                                        veteran between the ages of 18
                                                                        or 23 years and who is a member
                                                                        of the veteran's household at
                                                                        the time of the veteran's
                                                                        death. . . .''
Survivors' and Dependents' Educational    Adjudication (38 CFR part    Section 3.807(d) sets forth        64.117
 Assistance.                               3).                          basic eligibility criteria for
                                                                        the program of educational
                                                                        assistance under 38 U.S.C.
                                                                        Chapter 35. Defines the term
                                                                        ``child'' as the son or
                                                                        daughter of a veteran who meets
                                                                        the requirements of 38 CFR
                                                                        3.57, except as to age or
                                                                        marital status.
                                          Survivors' and Dependent's   Section 21.3021 describes
                                           Educational Assistant        beneficiaries of the program.
                                           Under 38 U.S.C. Chapter 35   Paragraph (a) defines the term
                                           (38 CFR part 21, subpart     ``eligible person'' as, ``(1) A
                                           C).                          child of a: (i) Veteran who
                                                                        died of a service-connected
                                                                        disability. . . .'' Paragraph
                                                                        (b) defines the term ``child''
                                                                        as a son or daughter of a
                                                                        veteran as defined in 38 CFR
                                                                        3.807(d).

[[Page 45]]


                                                                       Section 21.3023 states that:
                                                                        ``(a) Child; age 18. A child
                                                                        who is eligible for educational
                                                                        assistance and who is also
                                                                        eligible for pension,
                                                                        compensation dependency and
                                                                        indemnity compensation based on
                                                                        school attendance must elect
                                                                        whether he or she will receive
                                                                        educational assistance or
                                                                        pension, compensation or
                                                                        dependency and indemnity
                                                                        compensation. (1) An election
                                                                        of education assistance either
                                                                        before or after the age of 18
                                                                        years is a bar to subsequent
                                                                        payment or increased rates or
                                                                        additional amounts of pension,
                                                                        compensation or dependency and
                                                                        indemnity compensation on
                                                                        account of a child based on
                                                                        school attendance on or after
                                                                        the age of 18 years. . . . (2)
                                                                        Payment of pension,
                                                                        compensation or dependency and
                                                                        indemnity compensation to or on
                                                                        account of a child after his or
                                                                        her 18th birthday does not bar
                                                                        subsequent payments of
                                                                        educational assistance. . . .
                                                                        (b) Child; under 18 or
                                                                        helpless. Educational
                                                                        assistance allowance or special
                                                                        restorative training allowance
                                                                        may generally be paid
                                                                        concurrently with pension,
                                                                        compensation or dependency and
                                                                        indemnity compensation for a
                                                                        child under the age of 18 years
                                                                        or for a helpless child based
                                                                        on the service of one or more
                                                                        parents. Where, however,
                                                                        entitlement is based on the
                                                                        death of more than one parent
                                                                        in the same parental line,
                                                                        concurrent payments in two or
                                                                        more cases may not be
                                                                        authorized if the death of one
                                                                        such parent occurred on or
                                                                        after June 9, 1960. In the
                                                                        latter cases, an election of
                                                                        educational assistance and
                                                                        pension, compensation or
                                                                        dependency and indemnity
                                                                        compensation in one case does
                                                                        not preclude a reelection of
                                                                        benefits before attaining age
                                                                        18 or while helpless based on
                                                                        the service of another parent
                                                                        in the same parental line. . .
                                                                        .''
                                                                       Section 21.3040 sets forth
                                                                        criteria for the commencement
                                                                        and termination of the program
                                                                        of education or special
                                                                        restorative training for an
                                                                        eligible child under 38 U.S.C.
                                                                        Chapter 35. Paragraph (a) of
                                                                        this section provides that a
                                                                        program of education or special
                                                                        restorative training may not be
                                                                        afforded prior to the eligible
                                                                        persons' 18th birthday or the
                                                                        completion of secondary
                                                                        schooling, whichever is
                                                                        earlier, unless it is
                                                                        determined through counseling
                                                                        that the best interests of the
                                                                        eligible person will be served
                                                                        by entering training at an
                                                                        earlier date and the eligible
                                                                        person has passed: (1)
                                                                        Compulsory school attendance
                                                                        age under State law; or (2) his
                                                                        or her 14th birthday and due to
                                                                        physical or mental handicap may
                                                                        benefit by special restorative
                                                                        or specialized vocational
                                                                        training. Paragraph (c) of this
                                                                        section provides that no person
                                                                        is eligible for educational
                                                                        assistance who reached his or
                                                                        her 26th birthday on or before
                                                                        the effective date of a finding
                                                                        of permanent total service-
                                                                        connected disability, or on or
                                                                        before the date the veteran's
                                                                        death occurred, or on or before
                                                                        the 91st day of listing by the
                                                                        Secretary concerned of the
                                                                        member of the Armed Forces or
                                                                        whose service eligibility is
                                                                        claimed as being is one of the
                                                                        missing categories identified
                                                                        in 38 CFR 21.3021(a) (1)(iii)
                                                                        and (3)(ii). Paragraph (d)
                                                                        provides that no person is
                                                                        eligible for educational
                                                                        assistance beyond his or her
                                                                        31st birthday, except in
                                                                        certain exceptional cases.

[[Page 46]]


                                                                       Section 21.3041 sets forth
                                                                        periods of eligibility for an
                                                                        eligible child. Paragraph (a)
                                                                        of this section provides the
                                                                        basic beginning date for the
                                                                        educational assistance as the
                                                                        person's 18th birthday or
                                                                        successful completion of
                                                                        secondary schooling, whichever
                                                                        occurs first. Paragraph (b)
                                                                        authorizes certain exceptions
                                                                        to the basic beginning date,
                                                                        if: (1) A person has passed
                                                                        compulsory school attendance
                                                                        under applicable State law, or
                                                                        (2) has passed his or her 14th
                                                                        birthday and has a physical or
                                                                        mental handicap. Paragraph (c)
                                                                        provides the basic ending date
                                                                        as the person's 26th birthday.
                                                                        Paragraphs (d) and (e) set
                                                                        forth criteria for modifying or
                                                                        extending the ending date.
                                          Administration of            Section 21.3300 provides that VA
                                           Educational Benefits; 38     may prescribe special
                                           U.S.C. Chapter 34, 35, and   restorative training for the
                                           36 (38 CFR part 21,          purpose of enabling an eligible
                                           subpart D).                  child to pursue a program of
                                                                        education, special vocational
                                                                        program, or other appropriate
                                                                        goal, where needed to overcome
                                                                        or lessen the effects of a
                                                                        physical or mental disability.
                                                                       Section 21.4102(a) requires VA
                                                                        to provide counseling for the
                                                                        purpose set forth in 38 CFR
                                                                        21.4100 to an eligible child
                                                                        when: (1) The eligible child
                                                                        may require specialized
                                                                        vocational or special
                                                                        restorative training, or (2)
                                                                        the eligible child has reached
                                                                        compulsory school attendance
                                                                        age under State law, but has
                                                                        neither reached his or her 18th
                                                                        birthday nor completed
                                                                        secondary schooling, or (3) if
                                                                        requested by the eligible child
                                                                        or his or her parent or
                                                                        guardian for the purpose of
                                                                        preparing an educational plan.
                                                                       Section 21.4139(b) provides that
                                                                        VA will make payment of
                                                                        educational assistance under 38
                                                                        U.S.C. Chapter 35 to the
                                                                        eligible person if: (1) He or
                                                                        she has attained majority and
                                                                        has no known legal disability
                                                                        or (2) is in the eligible
                                                                        person's best interests, and
                                                                        there is no reason not to
                                                                        designate the eligible person
                                                                        as payee. VA may pay minors
                                                                        under this provision.
                                                                       Section 21.4141 provides that
                                                                        payment of educational
                                                                        assistance allowance under 38
                                                                        U.S.C. Chapter 35 will be
                                                                        subject to offsets of amounts
                                                                        of pension, compensation, or
                                                                        dependency and indemnity
                                                                        compensation paid over the same
                                                                        period on behalf of a child
                                                                        based on school attendance.
VA Hospital, Domiciliary or Nursing Home  Eligiblity for hospital,     Section 17.47(e) provides that     64.009
 Care.                                     domiciliary or nursing       within the limits of VA           64.010
                                           home care of persons         facilities, hospital or nursing   64.015
                                           discharged or released       home care may be provided to      64.016
                                           from active military,        any veteran with a nonservice-
                                           naval, or air service (38    connected disability if such a
                                           CFR 17.47).                  veteran is 65 years of age or
                                                                        older.

[[Page 47]]


Civilian Health and Medical Program of    Medical Care for Survivors   Section 17.54 states that          64.009
 the Department of Veterans Affairs        and Dependents of Certain    medical care may be provided
 (CHAMPA).                                 Veterans (38 CFR 17.54).     for: ``(1) The spouse or child
                                                                        of a veteran who has a total
                                                                        disability, permanent in
                                                                        nature, resulting from a
                                                                        service-connected disability,
                                                                        and (2) the surviving spouse or
                                                                        child of a veteran who--(a)
                                                                        died as a result of a service-
                                                                        connected disability, or (b) at
                                                                        the time of death had a total
                                                                        disability, permanent in nature
                                                                        resulting from a service-
                                                                        connected disability and--(3)
                                                                        the surviving spouse or child
                                                                        of a person who died in the
                                                                        active military, naval or air
                                                                        service . . . Who are not
                                                                        otherwise eligible for medical
                                                                        care as beneficiaries of the
                                                                        Armed Forces under the
                                                                        provisions of Chapter 55 of
                                                                        Title 10, United States Code
                                                                        (CHAMPUS) . . . and (4) An
                                                                        eligible child who is pursuing
                                                                        a full-time course of
                                                                        instruction approved under 38
                                                                        U.S.C. Chapter 36, and who
                                                                        incurs a disabling illness or
                                                                        injury while pursuing such
                                                                        course; . . . shall remain
                                                                        eligible for medical care
                                                                        until: (a) The end of the 6-
                                                                        month period beginning on the
                                                                        date the disability is removed,
                                                                        or (b) the end of the 2-year
                                                                        period beginning on the date of
                                                                        the onset of the disability; or
                                                                        (c) the 23d birthday of the
                                                                        child, whichever occurs first.
                                                                        . . .''
Veterans' Educational Assistance........  Administration of            Section 21.4135(d) sets forth
                                           Educational Benefits; 38     the following dates for the
                                           U.S.C. Chapters 34, 35,      discontinuance of the
                                           and 36 (38 CFR part 21,      educational assistance
                                           subpart D).                  allowance provided for a
                                                                        dependent child, under Chapter
                                                                        34 of Title 38: ``. . . (1)
                                                                        Last day of the in calendar
                                                                        year in which marriage occurred
                                                                        unless discontinuance is
                                                                        required at an earlier date
                                                                        under other provisions. (2) Age
                                                                        18. Day preceding 18th
                                                                        birthday. (3) School
                                                                        attendance. Last day of month
                                                                        in which 23rd birthday,
                                                                        whichever is earlier. (4)
                                                                        Helplessness ceased. Last day
                                                                        of month school attendance
                                                                        ceased or day preceding
                                                                        following 60 days after notice
                                                                        to payee that helplessness has
                                                                        ceased.''
                                                                       Section 21.4136 sets forth
                                                                        monthly rates for the payment
                                                                        of educational assistance
                                                                        allowance under 38 U.S.C.
                                                                        Chapter 34. Paragraph (f)
                                                                        defines the term ``dependent''
                                                                        as a spouse, child or dependent
                                                                        parent who meets the
                                                                        definitions of relationship
                                                                        specified in 38 CFR 3.50, 3.51,
                                                                        3.57 and 3.59.
----------------------------------------------------------------------------------------------------------------



General Information Federal Coordination and Compliance
Federal Coordination and Compliance
Title VI Hotline: 1-888-TITLE-06
(1-888-848-5306) (Voice / TTY)
Leadership
Deeana Jang
Chief
Contact
U.S. Department of Justice
Civil Rights Division
Federal Coordination and Compliance Section, NWB
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

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