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The Power and Scope of Section 504 of the Rehabilitation Act--Using it to Advocate for Your Rights as a Person with a Disability

by Brian East

1. What is §504?
2. The §504 regulations
3. To whom does §504 apply?
4. Who is protected under §504?
5. Definition of discrimination under §504
6. Affirmative obligations of recipients
7. Employment provisions of §504
8. Program access requirements
9. Architectural barriers
10. Education
11. Health, welfare, and other social services
12. Housing
13. Transportation
14. Enforcement of §504 rights
15. Remedies
16. Some other parts of the Rehabilitation Act

1. What is §504?

a. Text: "No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service."

b. Citation: 29 U.S.C. §794(a).

2. The §504 regulations.

a. The statute is written very broadly; the details are in the enforcing regulations. [For some history on the regulations, see the story and links at <http://www.ragged-edge-mag.com/0102/0102ft6.html>. See also Cherry v. Mathews, 419 F.Supp. 922 (D.D.C. 1976) (requiring federal agency to issue §504 regulations).]

b. Each Federal agency has its own set of §504 regulations that apply to its own programs.

c. Each agency that provides Federal financial assistance must issue its own §504 regulations covering entities that receive Federal aid, and the regulations must be consistent with the coordinating regulations. 28 C.F.R. §41.4(a) and (c).

d. The "coordinating regulations"

i. The authority to issue "coordinating regulations" was originally given to the old Dep't of Health, Education & Welfare (HEW), and these original regulations are now codified by the Dep't of Health & Human Services at 45 C.F.R. Part 84. These HEW regulations are of particular significance because of that agency's original role as coordinating agency. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 690 (2002).

ii. The coordinating authority was transferred to the Dep't of Justice (DOJ) by Executive Order 12250 (11/2/80), and the coordinating regulations now appear at 28 C.F.R. Part 41.

iii. Note that the §504 regulations are important not just for interpreting §504, but also for interpreting Title II of the ADA, since Congress required that the Title II regulations be consistent with those adopted under §504. 42 U.S.C. §12134(b); Olmstead v. L. C. by Zimring, 527 U.S. 581, 591 (1999).

e. Some other specific agency regulations are found at:

i. Defense Dep't - 32 C.F.R. pt. 56
ii. HUD - 24 C.F.R. pt. 8
iii. Justice - 28 C.F.R. §§42.501-.540
iv. Dep't of Labor - 29 C.F.R. pt. 32
v. Dep't of Transportation - 49 C.F.R. pt. 27

f. For a list of federal agency §504 coordinators, see <http://www.access-board.gov/enforcement/504.htm>.

3. To whom does §504 apply?

a. Any program or activity conducted by any Executive agency

i. The Rehabilitation Act does not apply to the Judicial Branch or federal courts. For information on the internal policy of the federal courts to accommodate communications disabilities, see <http://www.pai-ca.org/Pubs/502601.htm#Federal>.

ii. Although the Rehabilitation Act does not by its own terms apply to the Legislative Branch, the Congressional Accountability Act of 1995 extended the employment protections of the Act to employees of the House, Senate, and certain specified arms of Congress. See 2 U.S.C. §§1301(3) and 1311.

b. Any program or activity conducted by the United States Postal Service; or

c. Any program or activity receiving Federal financial assistance.

i. Program or activity means, according to 45 C.F.R. §84.3:

(1) The particular department or agency of State or local government:

(a) "program or activity" includes the particular department or agency, special purpose district, or other instrumentality of a State or of a local government that receives Federal financial assistance; or

(b) the particular entity of such State or local government that distributes such assistance, and each such department or agency or other State or local government entity to which the assistance is extended.

(c) §504 only applies to the particular department or agency that receives or distributes federal financial assistance. Lightbourn v. County of El Paso, Texas, 118 F.3d 421, 427 (5th Cir. 1997). Thus, the state as a whole is not a "program or activity" under §504, id., nor is a city as a whole. Micek v. City of Chicago, 1999 WL 966970*2 (N.D.Ill. 1999).

(2) All of the following entities, even if only a portion of them receive Federal financial assistance:

(a) a college, university, or other post-secondary institution, or a public system of higher education; or

(b) a local educational agency (i.e., school district), system of vocational education, or other school system; or

(c) a corporation, partnership, or other private organization, or sole proprietorship.

ii. A recipient of federal financial assistance:

(1) Is defined in 45 C.F.R. §84.3(f) and 28 C.F.R. §41.3(d) to include:

(a) any state or its political subdivision;

(b) any instrumentality of a state or its political subdivision;

(c) any public or private agency, institution, organization, or other entity; or

(d) 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. But see, e.g., Berthelot v. Stadler, 2000 WL 1568224*3 (E.D.La. 2000) (individual government officials are not themselves recipients of federal financial assistance).

(2) Includes public and private entities that receive federal funding subsidies, either directly or through another recipient. Grove City College v. Bell, 465 U.S. 555 (1984) (college was "recipient" of federal financial assistance to its students); Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 (2d Cir. 1998), vacated on other grounds, 527 U.S. 1031 (1999), aff'd on remand on other grounds, 226 F.3d 69 (2d Cir. 2000) (entity receiving assistance indirectly through vouchers is covered, even though it never was given opportunity to turn down federal aid); Horner v. Kentucky High School Athletic Ass'n, 43 F.3d 265 (6th Cir. 1994) (athletic association, as agent of state board of education, indirectly received federal funds). See also 160 A.L.R. Fed. 297.

(3) Does not include those who do not receive Federal financial assistance, but merely benefit from it. U.S. Dept. of Transp. v. Paralyzed Veterans of America, 477 U.S. 597 (1986) (§504 did not apply to commercial airlines by virtue of federal financial assistance provided to airports or by virtue of nationwide air traffic control system operated by federal government).

iii. Federal financial assistance:

(1) Includes any grant, loan, contract, or any other arrangement by which a federal agency provides or otherwise makes available assistance. 45 C.F.R. §84.3(h); 28 C.F.R. §41.3(e).

(a) Many courts have found that it includes Medicare and Medicaid recipients. E.g., United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1042 (5th Cir.1984), cert. denied, 469 U.S. 1189 (1985); Estate of Alcalde v. Deaton Specialty Hosp. Home, Inc., 133 F.Supp.2d 702, 708 (D.Md. 2001); Lesley v. Chie, 81 F.Supp.2d 217, 222 (D.Mass. 2000), aff'd, 250 F.3d 47 (1st Cir. 2001).

(b) Includes colleges whose students receive federal aid such as Pell grants. Grove City College v. Bell, 465 U.S. 555, 569-570 (1984) (Title IX coverage is not foreclosed because federal funds are granted to college's students rather than directly to one of the college's educational programs).

(2) Does not include procurement contracts, Mass v. Martin Marietta, 805 F.Supp. 1530, 1542 (D. Colo. 1992), or contracts of insurance or guaranty. 45 C.F.R. §84.3(h); 28 C.F.R. §41.3(e). See Muller v. Hotsy Corp., 917 F.Supp. 1389, 1417-1418 (N.D.Iowa 1996) (holding that a private corporation does not receive Federal financial assistance unless it "receives a subsidy;" contract with GSA was insufficient).

4. Who is protected under §504?

a. Definition of disability

i. §504 uses the same definition of disability as that of the ADA. 29 U.S.C. §§705(9)(B) and 705(20)(B); 28 C.F.R. §41.31; 45 C.F.R. §84.3(j).

ii. For more on this definition, see "The Definition of Disability Under the ADA and §504," a previous ILRU webcast online at <http://www.ilru.org/online/handouts/2002/East/handout.html>.

b. Qualified person with a disability means:

i. With respect to employment, a person with a disability who, with reasonable accommodation, can perform the essential functions of the job in question. 28 C.F.R. §41.32; 45 C.F.R. §84.3(k)(1).

ii. With respect to services, a person with a disability who meets the essential eligibility requirements for the receipt of such services. 28 C.F.R. §41.32; 45 C.F.R. §84.3(k)(4).

iii. With respect to public preschool elementary, secondary, or adult educational services, see 45 C.F.R. §84.3(k)(2).

iv. With respect to post-secondary and vocational education services, see 45 C.F.R. §84.3(k)(3).

5. Definition of discrimination under §504.

a. Prohibition against discrimination generally. 29 U.S.C. §794(a); 45 C.F.R. §84.4(a); 28 C.F.R. §41.51(a).

b. No discrimination against a class of disabilities, or based on severity of disability. 45 C.F.R. §84.4(b)(1)(iv); 28 C.F.R. §41.51(b)(1)(iv); Hahn ex rel. Barta v. Linn County, 130 F.Supp.2d 1036, 1050 (N.D.Iowa 2001) (and cases cited); Winkler v. Interim Services, Inc., 36 F.Supp.2d 1026, 1030 (M.D.Tenn. 1999) ("Several courts have concluded that the severity of one's disability can itself be disability and that denial of services based on the severity of a handicap would contravene Section 504.").

c. No discrimination in "siting" decisions. 45 C.F.R. §84.4(b)(5); 28 C.F.R. §41.51(b)(4). See also 45 C.F.R. Part 84 App. A(a)(6).

d. No surcharges.

i. There is no express provision prohibiting surcharges as there is under ADA Title II. See 28 C.F.R. § 35.130(f).

ii. DOJ has recognized that imposition of surcharges (e.g., the cost of interpreter services) is impermissible under §504. See 28 C.F.R. Part 35 App. §35.130(f).

e. No discrimination through contracting. 45 C.F.R. §84.4(b)(1) and (b)(4); 28 C.F.R. §41.51(b)(1) and (b)(3).

f. No discrimination through licensing or certification programs. 45 C.F.R. §84.4(b)(1); 28 C.F.R. §41.51(b)(1).

g. Prohibits certain disparate impact discrimination. See, e.g., 28 C.F.R. §41.51(b)(3); 45 C.F.R. Part 84 App. A(b)(17).

i. Disparate impact discrimination involves rules or policies that are neutral on their face, but that have a discriminatory effect on persons with disabilities.

ii. In Alexander v. Choate, 469 U.S. 287 (1985), the Court explained that members of Congress made numerous statements during passage of §504 regarding eliminating architectural barriers, providing access to transportation, and eliminating discriminatory effects of job qualification procedures. The Court then noted: "These statements would ring hollow if the resulting legislation could not rectify the harms resulting from action that discriminated by effect as well as by design." Id. at 297 (footnote omitted).

iii.While the Court rejected the argument that all disparate-impact showings violate §504, it assumed that §504 reaches at least some conduct that has an unjustifiable disparate impact on persons with disabilities. Id. at 299.

iv. The recent Supreme Court decision in Sandoval (restricting disparate impact claims brought under Title VI) does not affect the right to bring a disparate impact claim under §504. Robinson v. State of Kansas, ___ F.3d ___, 2002 WL 1462856*1 (10th Cir. 2002).

h. Discrimination includes the failure to:

i. Provide effective communications. See, e.g., 28 C.F.R. §41.51(e); 45 C.F.R. §84.44(d) (regarding post-secondary education); 45 C.F.R. §84.52(d) (regarding health, welfare, or other social services or benefits).

ii. Make reasonable modifications of policies, practices, and procedures if necessary to avoid discrimination. Southeastern Community College v. Davis, 442 U.S. 397 (1979).

(1) Fundamental alteration defense. Id.

(2) See also Olmstead v. L. C. by Zimring, 527 U.S. 581, 591 (1999).

iii. Provide aids, benefits, and services "in the most integrated setting appropriate to the person's needs." 45 C.F.R. §84.4(b)(2); 28 C.F.R. §41.51(d).

(1) This is the so-called "integration mandate." See also Olmstead v. L. C. by Zimring, 527 U.S. 581, 591 (1999) (interpreting substantially similar provision in ADA Title II regulations).

(2) "A recipient may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities." 28 C.F.R. §41.51(b)(2).

(3) The provision of unnecessarily separate or different services is discriminatory. 45 C.F.R. Part 84 App. A(a)(6).

6. Affirmative obligations of recipients.

a. Notice requirements - The recipient shall adopt and implement procedures to ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of services, activities, and facilities that are accessible to and usable by handicapped persons. 28 C.F.R. §41.51(e).

b. Grievance procedures. 45 C.F.R §84.7(b).

i. Required for recipients that employ 15 or more persons

ii. Must incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging any action prohibited by 45 C.F.R. Part 84.

iii. Need not be established for

(1) complaints from applicants for employment, or

(2) complaints from applicants for admission to post-secondary educational institutions.

c. For the §504 requirements regarding self-evaluations and transition planning, see ¶8(b) and ¶9(c)(ii) below.

7. Employment provisions of §504.

a. The 1992 Amendments to the Rehabilitation Act expressly adopt the liability standards in Title I of the ADA. 29 U.S.C. §794(d). See also 29 C.F.R. §1614.203.

b. Some advantages of §504 over the ADA include:

i. No administrative exhaustion requirement against non-federal defendants (see ¶14(d) below);

ii. No damage caps in §504 employment cases (see ¶15(b)(v) below);

iii. Waiver of state's 11th amendment immunity (see ¶15(b)(vi) below);

iv. Applies to recipient employers no matter how small.

(1) See, e.g., Schrader v. Ray, ___ F.3d ___, 2002 WL 1554451 (10th Cir. July 16, 2002); 28 C.F.R. Part 35 App. §35.140.

(2) This is in contrast to Title I of the ADA, which only covers employers with 15 or more employees.

c. General antidiscrimination provisions. 45 C.F.R. §84.11; 28 C.F.R. §41.52(a).

d. Employer must provide reasonable accommodations if necessary. 45 C.F.R. §84.12; 28 C.F.R. §41.53.

i. Examples of accommodations in the regulations are not exhaustive. 45 C.F.R. App. A(b)(16).

ii. Definition of reasonable accommodation does not mention reassignment, but reassignment may also be accommodation under Rehabilitation Act, at least after 1992 amendments adopting ADA liability standards. Gile v. United Airlines, Inc., 95 F.3d 492, 496-497 (7th Cir. 1996).

iii. Defense of undue hardship.

e. Disparate impact discrimination.

i. Prohibits certain employment tests or selection criteria that screen out, or tend to screen out, persons with disabilities. 45 C.F.R. §84.13; 28 C.F.R. §41.54.

ii. See also Alexander v. Choate, 469 U.S. 287 (1985), cited in ¶5(g) above.

f. Pre-employment inquiries restricted. 45 C.F.R. §84.14; 28 C.F.R. §41.55.

g. Causation.

i. By its language, §504 prohibits discrimination "solely" on the basis of disability. This is in contrast to the ADA, which requires the plaintiff to prove only that the discrimination was "because of" disability (meaning that disability need not be the only cause of the discrimination). Parker v. Columbia Pictures Industries, 204 F.3d 326, 337 (2d Cir. 2000); Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995); Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 158 (3d Cir. 1995).

ii. In 1992, Congress amended §504 to clarify that it is to be construed consistently with the ADA. 29 U.S.C. §794(d). Any apparent difference in the causation standards of the two statutes should now be eliminated. Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157-158 (3d Cir. 1995); Biddle v. Ruben, 1995 WL 382961 (N.D.Ill. 1995) (1992 amendments to §501 incorporate liability standards of ADA, and plaintiff need only show that adverse employment action was "because of" disability); Ryan v. City of Highland Heights, 1995 WL 584733 (N.D.Ohio 1995) (substantive standards of ADA and §504 are same; causation standard is "because of"). See also Myers v. Hose, 50 F.3d 278, 281 (4th Cir. 1995) (substantive liability standards same); Johnson v. New York Hospital, 897 F.Supp. 83 (S.D.N.Y. 1995) (same). But cf. Leary v. Dalton, 58 F.3d 748, 752 (1st Cir. 1995) (§504 causation standard an open question).

iii. Even so, judicial opinions that do not seem aware of the 1992 amendments continue to cause confusion. See, e.g., Soledad v. U.S. Dept. of Treasury, 116 F.Supp.2d 790, 797-799 (W.D.Tex. 2000) (holding that Rehabilitation Act requires sole cause, and finding that jury charge using ADA causation standard was reversible error).

h. Question of applicability to federal employees

i. Although §504 apparently overlaps §501 in its application to federal employees, the courts are split as to whether individuals may sue federal agencies under §504 for employment discrimination.

(1) Allowing employment claims to be brought against the federal government under §504: Spence v. Straw, 54 F.3d 196 (3d Cir. 1995); Doe v. Garrett, 903 F.2d 1455, 1459-1460 (11th Cir. 1990), cert. denied, 499 U.S. 904 (1991); Prewitt v. United States Postal Service, 662 F.2d 292, 302-304 (5th Cir. 1981).

(2) Holding or suggesting that employment cases may not be brought against the federal government under §504, but must be brought under §501: Rivera v. Heyman, 157 F.3d 101, 104 (2d Cir. 1998) (recognizing split in circuits, but holding that §501 is exclusive remedy for disability discrimination in employment claims by federal employees); Newland v. Dalton, 81 F.3d 904, 905 n.1 (9th Cir. 1996); Johnson v. Runyon, 47 F.3d 911, 916-917 n.5 (7th Cir. 1995).

(3) Even those courts allowing federal employment claims to proceed under §504 generally require exhaustion of §501 administrative requirements. See, e.g., Prewitt, supra. (Those administrative requirements are mentioned at ¶16(b)(ii) below.)

ii. The substantive prohibitions against discrimination are similar under §501 and §504, although there are a few differences, some of which are very briefly mentioned in ¶16(b) below.

8. Program access requirements.

a. "No qualified handicapped person shall, because a recipient's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity to which this part applies." 45 C.F.R. §84.21; 28 C.F.R. §41.56.

b. Self-evaluation requirements. 45 C.F.R. §84.6(c). See also 28 C.F.R. §41.5(b)(2).

i. A public entity must evaluate its services, policies, and practices, and the effects thereof, that do not or may not meet the requirements of 504

ii. Must provide an opportunity for input from the public and people with disabilities

iii. The entity must make all required modifications to its services, policies, and practices

iv. The evaluation was to be done within 1 year of the effective date of this part. (The effective date is referenced in ¶9(a) below.)

9. Architectural barriers.

a. The effective date of the original HEW §504 regulations regarding accessibility standards was June 3, 1977. 42 FR 22676 (5/4/77); McGregor v. Louisiana State University Bd. of Sup'rs, 3 F.3d 850, 861 (5th Cir. 1993).

b. New construction and alterations:

i. Each facility or part of a facility constructed by, on behalf of, or for the use of a recipient shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by handicapped persons, 28 C.F.R. §41.58(a);

ii. Each facility or part of a facility which is altered by, on behalf of, or for the use of a recipient 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 in such manner that the altered portion of the facility is readily accessible to and usable by handicapped persons, 28 C.F.R. §41.58(a);

iii. Guidelines

(1) Originally the §504 regulations required compliance with the American National Standards Institute (ANSI) standards A117.1-1961 (R 1971).

(2) Effective January 18, 1991, ANSI was replaced by the Uniform Federal Accessibility Standards (UFAS); after that date, the design, construction, or alteration of buildings in conformance with UFAS was deemed to comply with the requirements of §504. 45 C.F.R. §84.23(c)(1). The UFAS are available online at <http://www.access-board.gov/ufas/ufas-html/ufas.htm>. Deviations from UFAS are permitted if substantially equivalent or greater access to and usability of the building is provided.

(3) Compliance with ADAAG is also acceptable. See, e.g., 19 IDELR ¶694 (OCR Memo 12/1/92).

c. Older, "existing facilities"

i. "Program access" standard

(1) "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." 45 C.F.R. §84.22(a); 28 C.F.R. §41.57(a).

(2) Program access does not necessarily "require a recipient to make each of its existing facilities or every part of a facility accessible to and usable by handicapped persons." 45 C.F.R. §84.22(a); 28 C.F.R. §41.57(a). A recipient is not required to make structural changes in existing facilities where other methods are effective in achieving compliance.

(3) According to 45 C.F.R. §84.22(b), a recipient may comply with program access requirements through such means as:

(a) redesign of equipment,

(b) reassignment of classes or other services to accessible buildings,

(c) assignment of aides to beneficiaries,

(d) home visits,

(e) delivery of health, welfare, or other social services at alternate accessible sites,

(f) alteration of existing facilities and construction of new facilities in conformance with the requirements of §84.23, or

(g) any other methods that result in making its program or activity accessible.

(4) On the other hand, a school district or university system cannot just make one campus or school accessible, if the result is to segregate persons with disabilities in a single setting. 45 C.F.R. Part 84 App. A(c)(20). Program access may not result in segregation. Id.

(5) Consistent with longstanding interpretation of §504, carrying an individual with a disability is considered an ineffective and therefore an unacceptable method for achieving program accessibility. See 28 C.F.R. Part 35 App. §35.150(b)(1) (ADA Title II regulations), citing Office of Civil Rights, Policy Interpretation No. 4, 43 Fed. Reg. 36035 (HEW August 14, 1978).

(6) In choosing among available methods for meeting the program access requirement, a recipient shall give priority to those methods that offer programs and activities to persons with disabilities in the most integrated setting appropriate. 45 C.F.R. §84.22(b).

(7) Changes necessary to meet program access standards must be developed and implemented within 60 days of the effective date of this part [referenced in ¶9(a) above], unless structural changes are required. 45 C.F.R. §84.22(d).

ii. Transition plan requirement

(1) Applies if structural changes to facilities are necessary to meet program access, 28 C.F.R. §41.57(c); 45 C.F.R. §84.22(e);

(2) Must be developed within 6 months of the effective date [referenced in ¶9(a) above] of this part, 45 C.F.R. §84.22(e);

(3) Structural changes pursuant to the plan shall be made as expeditiously as possible, but in any event within 3 years of the effective date. 28 C.F.R. §41.57(b); 45 C.F.R. §84.22(d). (The effective date is referenced in ¶9(a) above.) Outside ramps to buildings can usually be built easily and cheaply, and thus should be built promptly. 45 C.F.R. Part 84 App. A(c)(20).

(4) Must at a minimum:

(a) Identify physical obstacles in the recipient's facilities that limit the accessibility of its program or activity to handicapped persons, 45 C.F.R. §84.22(e)(1);

(b) Describe in detail the methods that will be used to make the facilities accessible, 45 C.F.R. §84.22(e)(2);

(c) 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 the steps of that will be taken during each year of the transition period, 45 C.F.R. §84.22(e)(3); and

(d) Indicate the person responsible for implementation of the plan, 45 C.F.R. §84.22(e)(4).

(5) Must be developed with the assistance of persons with disabilities or organizations representing them. 28 C.F.R. §41.57(c); 45 C.F.R. §84.22(e).

(6) According to the DOJ, §504 treats newly leased buildings as subject to the "existing facility" "program accessibility" standard. 28 C.F.R. Part 35 App. §35.151.

iii. Small provider exception. 29 U.S.C. §794(c); 45 C.F.R. §84.22(c); 45 C.F.R. Part 84 App. (c)(20).

(1) Applies to recipient with fewer than fifteen employees that provides health, welfare, or other social services;

(2) Applies if provider finds, after consultation with the persons with a disability seeking its services, that there is no method of providing program access other than by making a significant structural alteration in its existing facilities;

(3) In such case the recipient may, as an alternative, refer the handicapped person to other providers of those services that are accessible.

10. Education.

a. In addition to the coordinating regulations cited below, the substantially similar regulations issued by the Education Department are online at <http://www.ed.gov/offices/OCR/regs/34cfr104.html>.

b. Preschool, Elementary, and Secondary Education

i. "Child find" obligation. 45 C.F.R. §84.32.

ii. Obligation to provide "free, appropriate public education" (FAPE). 45 C.F.R. §84.33(a); 45 C.F.R. Part 84 App. A(d)(23).

iii. Inclusion mandate - the school district must provide for the education of, each qualified student with a disability "with persons who are not handicapped to the maximum extent appropriate." 45 C.F.R. §84.34.

iv. Evaluation and placement obligations. 45 C.F.R. §84.35. See also <http://www.ed.gov/offices/OCR/docs/placpub.html>.

v. Procedural safeguards. 45 C.F.R. §84.36.

(1) required for actions regarding identification, evaluation, or educational placement.

(2) must include notice, an opportunity for the parents or guardian of the person to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure.

(3) Compliance with the procedural safeguards of IDEA is one means of meeting this requirement.

vi. Non-academic services - schools must provide an equal opportunity for participation not only in academic settings, but also in non-academic and extracurricular services, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the recipients, referrals to agencies which provide assistance to handicapped persons, and employment of students. 45 C.F.R. §84.37.

vii. Preschool and adult education programs - recipients may not, on the basis of disability, exclude qualified persons with disabilities from preschools, or from adult education programs operated by elementary and secondary schools, and shall take into account the needs of such persons in determining the aid, benefits, or services to be provided under the program or activity. 45 C.F.R. §84.38; 45 C.F.R. Part 84 App. A(d).

viii. Private education programs.

(1) Private programs receiving federal financial assistance. 45 C.F.R. §84.39.

(a) Such programs may not, on the basis of disability, exclude a qualified person with a disability if the person can, with minor adjustments, be provided an appropriate education

(b) Such programs may not charge more for the provision of an appropriate education to persons with disabilities, except to the extent that any additional charge is justified by a substantial increase in cost to the recipient;

(c) A recipient that operates special education programs shall operate such programs in accordance with ¶10(b)(iii)-(vii) above.

(2) According to 45 C.F.R. Part 84 App. A(a)(1), private programs that do not themselves receive Federal financial assistance:

(a) Are not covered just because their students may participate in federally funded programs;

(b) May be indirectly subject to these requirements under 45 C.F.R. §84.4(b)(4) (prohibiting contracting with those who discriminate).

c. Post-secondary Education

i. These provisions apply to post-secondary education programs and activities, including post-secondary vocational education programs and activities. 45 C.F.R. §84.41.

ii. The regulations include provisions regarding:

(1) Admissions and recruitment. 45 C.F.R. §84.42.

(2) Treatment of students. 45 C.F.R. §84.43.

(3) Academic adjustments. 45 C.F.R. §84.44.

(4) Housing. 45 C.F.R. §84.45.

(5) Financial and employment assistance to students. 45 C.F.R. §84.46.

(6) Auxiliary aids and services. See, generally, <http://www.ed.gov/offices/OCR/docs/auxaids.html>.

d. For some answers to frequently asked questions about §504 and the education of children with disabilities, see <http://www.ed.gov/offices/OCR/504faq.html>. See also <http://www.wrightslaw.com/info/sec504.index.htm>.

11. Health, welfare, and other social services. 45 C.F.R. §84.52.

a. In providing health, welfare, or other social services or benefits, a recipient may not, on the basis of disability:

i. Deny a qualified person those benefits or services;

ii. Give unequal opportunities to receive benefits or services;

iii. Provide benefits or services that are not as effective as the benefits or services provided to others;

iv. Provide benefits or services in a manner that limits or has the effect of limiting the participation of qualified persons with disabilities; or

v. Provide different or separate benefits or services except where necessary to provide benefits and services that are as effective as those provided to others.

b. Notice - a recipient shall take such steps as are necessary to ensure that effective notice is not denied because of a disability.

c. Emergency treatment for the hearing impaired - hospitals that provide health services or benefits shall establish procedures for effective communication with persons with impaired hearing.

d. Auxiliary aids - a recipient that employs 15 or more people shall provide appropriate auxiliary aids where necessary to afford such persons an equal opportunity to benefit from the service in question. See Davis v. Flexman, 109 F.Supp.2d 776, 787 (S.D.Ohio 1999).

e. Drug and alcohol addicts - A recipient that operates a general hospital or outpatient facility may not discriminate in admission or treatment against a drug or alcohol abuser or alcoholic who is suffering from a medical condition, because of the person's drug or alcohol abuse or alcoholism. 45 C.F.R. §84.53.

f. Education of institutionalized persons - A recipient that operates or supervises a program or activity for persons who are institutionalized because of disability shall ensure that each person in its program or activity is provided a free, appropriate education. 45 C.F.R. §84.54.

g. Although the regulations included provisions regarding health care for infants with disabilities, see 45 C.F.R. Part 84 App. C, these were struck down in a series of cases, including Bowen v. American Hosp. Ass'n, 476 U.S. 610 (1986). But not all medical treatment decisions are immune from scrutiny under the Rehabilitation Act. See, e.g., Zamora-Quezada v. HealthTexas Medical Group of San Antonio, 34 F.Supp.2d 433, 445 (W.D.Tex. 1998).

12. Housing.

a. Standards applicable to New Construction, Substantial Alterations, and certain public housing projects:

i. New Construction - all new multifamily housing projects containing five or more dwelling units:

(1) Shall be designed and constructed to be readily accessible to and usable by individuals with handicaps. 24 C.F.R. §§ 8.3 and 8.22(a). "Accessible" means that the unit is located on an accessible route and can be approached, entered, and used by individuals with physical handicaps. 24 C.F.R. §8.3.

(2) Shall have:

(a) A minimum of 5% of total dwelling units (at least one) accessible (or adaptable) for individuals with mobility impairments, 24 C.F.R. §8.22(b);

(b) An additional 2% of total dwelling units (at least one) accessible to persons with hearing or vision impairments, 24 C.F.R. §8.22(b);

(c) A higher percentage of accessible units if HUD determines, based on census or other available data, that more accessible units are needed, 24 C.F.R. §8.22(c);

(3) Compliance with sections 3-8 of the Uniform Federal Accessibility Standards (UFAS) shall satisfy these accessibility requirements. 24 C.F.R. §8.32(a). The UFAS are available online at <http://www.access-board.gov/ufas/ufas-html/ufas.htm>.

ii. The above requirements also apply to all newly constructed public housing, public housing developed through rehabilitation, and all alterations to public housing. 24 C.F.R. §8.25(a)(1) and (2).

iii. Alterations.

(1) The above requirements also apply to Substantial Alterations, meaning alterations undertaken to a project that has 15 or more units and the cost of the alterations is 75 percent or more of the replacement cost of the completed facility. 24 C.F.R. §8.23(a).

(2) Standards Applicable to Other Alterations:

(a) Other alterations to housing facilities with five (5) or more units must ensure that all elements affected by the scope of work are designed to provide accessibility to the maximum extent feasible. If the alterations to portions of a dwelling unit together amount to alteration of the entire unit, the unit must be made accessible.

(b) A minimum of 5% of units in a project must be made accessible (adaptable) for individuals with mobility impairments, unless 5% of the units are already accessible or adaptable. An additional 2% of total dwelling units (at least one) must be made accessible to persons with hearing or vision impairments. HUD may increase this percentage on the basis of data showing a greater need. Until 5% and 2% of the units are made completely accessible to people with mobility and sensory impairments, respectively, each alteration made in every unit must meet accessibility requirements. 24 C.F.R. §8.23(b).

(c) Alterations to common areas (such as entrances, lobbies, etc.) must, to the maximum extent feasible, be made accessible to and usable by individuals with disabilities.

b. Other Provisions.

i. In developing public housing through the purchase of existing properties, public housing authorities shall give priority to facilities that are readily accessible to and usable by individuals with disabilities. 24 C.F.R. §8.25(a)(3).

ii. Accessible dwelling units referenced in ¶¶12(a)(i)-(iii) and (b)(i) above shall, to the maximum extent feasible and subject to reasonable health and safety requirements, be distributed throughout projects and sites, and shall be available in a comparable range of sizes and amenities. 24 C.F.R. §8.26.

iii. When rehabilitating a unit, the resident and Contract Administrator may request alterations to units or common areas where no alterations were contemplated. If the request is reasonable in the context of the individual's disability, the owner must address the need through either reasonable accommodations or structural modifications unless it constitutes an undue financial and/or administrative burden.

iv. Existing housing must meet the "program access" standard, and comply with the transition plan requirements and deadlines described in 24 C.F.R. §8.24. In choosing among available methods for meeting "program access," priority must be given to methods that offer programs and services in the most integrated setting possible. It is not required that each existing facility be accessible if other methods are effective (i.e, when the property is viewed in its entirety, it must be readily accessible to and usable by individuals with disabilities). 24 C.F.R. §§8.21(c) and 8.24(a) and (b).

c. Special Programs.

i. Homeownership programs. 24 C.F.R. §8.29.

(1) Units must be made accessible if the expected occupant's disability so requires;

(2) The buyer may be permitted to depart from applicable accessibility standards to accommodate his/her disability;

(3) Costs for making the home comply with accessibility standards (UFAS) may be included in the mortgage amount;

(4) Costs above the limit may be passed on to the buyer.

ii. Rental rehabilitation programs - each grantee or state recipient must give priority to the selection of projects that will result in accessible dwelling units. 24 C.F.R. §8.30.

iii. Historic properties - accessibility need not be provided if alterations would substantially impair the significant historic features of the property or result in undue financial and administrative burdens. 24 C.F.R. §8.31.

iv. Housing certificate/voucher programs. 24 C.F.R. §8.28. Compare 24 C.F.R. §92.209.

(1) The recipient must insure that the notice of availability of housing assistance reaches individuals with disabilities;

(2) Owners having accessible units should be actively encouraged to participate;

(3) When considering requests for extensions from individuals with disabilities, grantees should take into account the special problems associated with locating an accessible unit;

(4) Exceptions to the fair market rents may be necessary to allow Section 8 certificate holders to rent accessible units;

(5) Grantees must enter into HUD-approved contracts with participating owners that include assurances of non-discrimination on the basis of disability.

13. Transportation.

a. DOJ suspended the coordinating prohibiting disability discrimination in transportation programs and activities. 46 FR 40687-01 (Aug. 11, 1981).

b. Current Dep't of Transportation regulations require, among other things:

i. Compliance with ADA Title II transportation regulations. 49 C.F.R. §27.19;

ii. Accessible airport facilities, 49 C.F.R. §27.71, aircraft boarding assistance by airport personnel and equipment, 49 C.F.R. §27.72, and appropriate actions with regard to service animals, Guidance Concerning Service Animals in Air Transportation, 61 FR 56409, 56420 (11/1/96); and

iii. Accessible highway facilities such as rest areas, curb cuts, and pedestrian walkways. 49 C.F.R. §27.75.

14. Enforcement of §504 rights.

a. Administrative enforcement.

i. Each agency is responsible for enforcing its own regulations.

ii. Administrative complaints must be filed within 180 days of the action complained of. See 28 C.F.R. §42.107(b) (Title VI regulations).

iii. Other information on how to file §504 complaints with the appropriate agency may be available from the Disability Rights Section, Civil Rights Division, U.S. Department of Justice, P.O. Box 66738, Washington, D.C. 20035-6738, (800) 514-0301 (voice), (800) 514-0383 (TTY), info at <http://www.usdoj.gov/crt/ada/adahom1.htm>.

iv. Special rules apply in employment cases against federal agencies.

v. Administrative remedies can include termination of Federal financial assistance, 29 U.S.C. §794a, for the particular program or part thereof that is not in compliance, 28 C.F.R. §42.108(c).

b. Section 504 may also be enforced through private lawsuits. Barnes v. Gorman, ___ U.S. ___, 122 S.Ct. 2097, 2100 (2002).

i. A common formulation of the elements of a case involving discrimination in services under §504, as described in Lesley v. Chie, 250 F.3d 47, 53 (1st Cir. 2001), might include proof that the plaintiff:

(1) has a disability;

(2) sought services from a federally funded entity;

(3) was "otherwise qualified" to receive those services; and

(4) was denied those services "solely by reason of her ... disability."

ii. A common formulation of the elements of an employment discrimination case under §504, as described in Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993), includes proof that the plaintiff:

(1) has a disability;

(2) was otherwise qualified to perform the position in question;

(3) worked for a "program or activity" that received federal financial assistance;

(4) was adversely treated solely because of his handicap.

iii. Statute of limitations

(1) There is no express statute of limitation in §504, so the most analogous state law statute of limitations applies, typically the statute of limitations for personal injury claims. E.g., Hickey v. Irving Independent School Dist., 976 F.2d 980, 982-983 (5th Cir. 1992) (Texas two-year personal injury statute applied).

(2) State tolling rules (excusing delays beyond the limitations period) are also applicable. Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir. 2001) (involving ADA Title III and §504 claims); Harris v. Hegmann, 198 F.3d 153, 156-157 (5th Cir. 1999) (§1983 case); Wagner v. Texas A & M University, 939 F.Supp. 1297, 1316-1317 (S.D.Tex. 1996) (similar).

c. Intent is not necessary to state a claim under §504, Washington v. Indiana High School Athletic Ass'n, Inc., 181 F.3d 840, 847 (7th Cir.), cert. denied, 528 U.S. 1046 (1999), and discrimination may be established by evidence that:

i. The defendant intentionally acted on the basis of the disability;

ii. The defendant refused to provide a reasonable modification; or

iii. The defendant's rule disproportionally impacts disabled people.

d. Exhaustion of administrative remedies.

i. It is generally not necessary to file a complaint with a Federal agency or to receive a "right-to-sue" letter before going to court. See, e.g., Freed v. Consolidated Rail Corp., 201 F.3d 188 (3d Cir. 2000); Smith v. Barton, 914 F.2d 1330, 1338 (9th Cir. 1990); Camenisch v. University of Texas, 616 F.2d 127 (5th Cir. 1980), vacated on other grounds, 451 U.S. 390 (1981). See also Education & Labor report at 98; S. Rep. No. 116, 101st Cong., 1st Sess., at 57-58 (1989).

ii. Some exceptions exist:

(1) Employment claims against federal agencies. See ¶7(h)(i)(3) above, and ¶16(b)(ii) below.

(2) The Prison Litigation Reform Act requires administrative exhaustion of certain claims against prisons. See, e.g., Hicks v. Monteiro, 2002 WL 654086 (N.D.Cal. Apr. 11, 2002).

(3) According to some courts, exhaustion of due process rights under IDEA must be completed prior to suing public schools. See, e.g., Polera v. Board of Educ. of Newburgh Enlarged City School Dist., 288 F.3d 478 (2d Cir. 2002).

(4) According to some courts, administrative remedies must be exhausted in cases against the federal government. See, e.g., Poynter v. U.S., 55 F.Supp.2d 558, 563 (W.D.La. 1999).

15. Remedies.

a. Generally, §504 expressly provides the same remedies as Title VI of the Civil Rights Act of 1964. 29 U.S.C. §794a(a)(2); Barnes v. Gorman, ___ U.S. ___, 122 S.Ct. 2097, 2100 (2002).

b. Actual damages

i. In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 66 (1992), the Supreme Court held that, where a private right of action exists, "any appropriate relief" is available under federal statutes (specifically Title IX), expressly including compensatory damages. Since Title IX, like §504, adopts the remedies of Title VI, the applicability of Franklin to §504 cases is clear. Compare Barnes v. Gorman, ___ U.S. ___, 122 S.Ct. 2097 (2002).

ii. The great majority of §504 cases since Franklin to decide the issue have held that compensatory damages are available. See, e.g., Moreno v. Consolidated Rail Corp., 99 F.3d 782, 789 (6th Cir. 1996) (en banc) (every circuit that has reached issue after Franklin has held that compensatory damages are available under §504); Kilroy v. Husson College, 959 F.Supp. 22 (D.Maine 1997); DeLeo v. City of Stamford, 919 F.Supp. 70 (D.Conn. 1995). See also 145 ALR Fed. 353.

iii.Most courts require proof of intentional conduct. See, e.g., Duvall v. County of Kitsap, 260 F.3d 1124, 1138-1139 (9th Cir. 2001) (using deliberate indifference standard); Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1153 (10th Cir. 1999) (same); Bartlett v. New York State Board of Law Examiners, 156 F.3d 321 (2d Cir. 1998) (same), vacated on other grounds, 527 U.S. 1031 (1999); Bravin v. Mount Sinai Med. Center, 58 F.Supp.2d 269, 273-274 (S.D.N.Y. 1999). Compare Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998) (finding no evidence of intent in part because of lack of notice to defendant, and its diligent efforts to remedy problems once it was notified); Schultz v. YMCA, 139 F.3d 286 (1st Cir. 1998) (YMCA is not automatically immune simply because its standards were adopted in good faith or based on widespread assumptions, but court rejects awarding damages for emotional distress in a debatable case on the merits with no animus or other concrete impact).

iv. Note that none of the above are employment cases, which have their own formulas for proving "intentional" conduct. See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-143 (2000) (ADEA case describing "pretext" method of proving intentional discrimination).

v. While there are caps on the damages recoverable in employment cases brought under §501, there are no caps on damages in cases under §504. 42 U.S.C. §1981a(a)(2); Roberts v. Progressive Independence, Inc., 183 F.3d 1215, 1223-1224 (10th Cir. 1999).

vi. States' generally do not have immunity from claims for money damages under §504.

(1) The vast majority of courts to consider the issue have ruled that §504, as Spending Clause legislation conditioning receipt of federal funds on a waiver of immunity, is constitutional. See, e.g., Robinson v. State of Kansas, ___ F.3d ___, 2002 WL 1462856*3 (10th Cir. 2002); Carten v. Kent State University, 282 F.3d 391, 398 (6th Cir. 2002); Douglas v. California Dept. of Youth Authority, 271 F.3d 812, 819-821 (9th Cir. 2001) (and cases cited); Bowers v. National Collegiate Athletic Ass'n, 171 F. Supp.2d 389, 408 (D.N.J. 2001), appeal pending; Frederick L. v. Dep't of Pub. Welfare, 157 F. Supp.2d 509, 523 (E.D. Pa. 2001); Lieberman v. Delaware, 2001 WL 1000936, at *5-6 (D.Del. Aug. 30, 2001). See also Kvorjak v. Maine, 259 F.3d 48, 50 n.1 (1st Cir. 2001) (stating that employment claim could proceed under §504 after Garrett, though without analysis). Compare Garrett v. University of Alabama at Birmingham Bd. of Trustees, 276 F.3d 1227, 1228-1229 (11th Cir. 2001) (remanded for consideration of the issue).

(2) Compare also Garcia v. SUNY Health Sciences Center of Brooklyn, 280 F.3d 98, 113-115 (2d Cir.2001) (no knowing waiver because at the time the state accepted funds [pre-Seminole decision in 1995], Title II was reasonably understood to abrogate state's sovereign immunity under Commerce Clause authority, so a state accepting federal funds conditioned on a waiver of immunity from §504 claims, which proscribed the same conduct, could not have understood that it was actually giving up anything).

(3) The Fifth Circuit has not yet decided the issue, Reickenbacker v. Foster, 274 F.3d 974, 984 (5th Cir. 2001) (issue not preserved), but the issue is currently pending before the Court in several cases. See, e.g., Miller v. Texas Tech University Health Sciences Ctr., No. 02-10190 (5th Cir. 2002) (appeal pending); August v. Mitchell, 2002 WL 188406 (E.D. La. 2002) (appeal pending, No. 02-30369); Johnson v. State of Louisiana, 2002 WL 83645, at *5 (E.D. La. 2002) (appeal pending, No. 02-30318).

vii. Damages are not available, however, against the federal government or its agencies under §504, because the Rehabilitation Act does not waive the federal government's sovereign immunity from damage claims. Lane v. Pena, 518 U.S. 187 (1996).

c. No punitive damages. Barnes v. Gorman, ___ U.S. ___, 122 S.Ct. 2097 (2002).

d. Injunctive relief. E.g., Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998) (trial court abused its discretion by not ordering mandatory injunctive relief after finding violations of the ADA and the Rehabilitation Act at the county courthouse; once success on the merits is shown, three factors should be considered in determining whether injunctive relief is appropriate: the threat of irreparable harm to the plaintiff, the harm to be suffered by the defendant if the injunction is granted, and the public interest at stake); Chalk v. United States Dist. Court Cent. Dist. of California, 840 F.2d 701 (9th Cir. 1988); Jackson v. State of Maine, 544 A.2d 291, 299 (Me. 1988).

e. In employment cases:

i. Back pay. Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630 (1984).

ii. Reinstatement. Chalk v. United States Dist. Court Cent. Dist. of California, 840 F.2d 701 (9th Cir. 1988).

iii. Front pay. Arline v. School Board of Nassau County, 692 F.Supp. 1286 (M.D. Fla. 1988) (opinion on remand).

f. Attorneys fees

i. Available to prevailing party. 29 U.S.C. §794a(b).

ii. Supreme Court has restricted "catalyst" attorneys fees, purportedly based on Congressional intent. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598 (2001).

16. Some other parts of the Rehabilitation Act.

a. Title I

i. Title I of the Rehabilitation Act authorizes grants to assist states in helping handicapped individuals prepare for and engage in gainful employment. 29 U.S.C. §720(a).

ii. Title I requires states that wish to obtain federal funds to submit a plan for vocational rehabilitation (VR) services that provides, at a minimum, for the specified VR services listed in 29 U.S.C. §721(a)(8).

iii. Some courts have held that Title I VR clients are entitled to bring claims under 42 U.S.C. §1983 to ensure compliance with these federal requirements, especially in light of the fact that there is no private right of action under Title I. See, e.g., Doe v. Pfrommer, 148 F.3d 73, 78 (2d Cir. 1998); Mallett v. Wisconsin Div. of Vocational Rehabilitation, 130 F.3d 1245 (7th Cir. 1997).

b. §501

i. Section 501 requires affirmative action and nondiscrimination in employment by Federal agencies of the executive branch.

ii. Exhaustion of administrative remedies required, through an EEO/EEOC process. 29 C.F.R. Part 1614. Alternatively, a federal employee can got through the Merit System Protection Board (MSPB), 5 U.S.C. §§7701 et seq.; 5 C.F.R. Part 1201, or a collectively bargained grievance and arbitration process.

c. §503

i. Section 503 requires affirmative action and prohibits employment discrimination by Federal government contractors and subcontractors with contracts of more than $10,000.

ii. Most of the cases interpreting §503 hold that there is no private right of action under it. See, e.g., Ortega v. Rhone-Poulenc of Wyoming, L.P., 842 F.Supp. 488 (D.Wyo. 1994).

iii. §503 is enforced by Office of Federal Contract Compliance Programs, U.S. Department of Labor, 200 Constitution Avenue, NW, Room C-3325 Washington, D.C. 20210, (202) 693-0106 (voice/relay), info at <http://www.dol.gov/dol/esa/public/ofcp_org.htm>.

d. §508

i. Applies to electronic and information technology developed, maintained, procured, or used by the Federal government

ii. Requires Federal electronic and information technology to be accessible to people with disabilities, including employees and members of the public.

iii. For more information on §508, contact:

(a) U.S. General Services Administration, Center for IT Accommodation (CITA), 1800 F Street, N.W., Room 1234, MC:MKC, Washington, DC 20405-0001, (202) 501-4906 (voice), (202) 501-2010 (TTY), info at <http://www.itpolicy.gsa.gov/cita>.

(b) U.S. Architectural and Transportation, Barriers Compliance Board, 1331 F Street, N.W. Suite 1000, Washington, DC 20004-1111, 800-872-2253 (voice), 800-993-2822 (TTY), info at <http://www.access-board.gov>.

© Brian East
July 31, 2002


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