Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance From HHS

45 CFR Part 91

Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance From HHS

AGENCY: Health and Human Services Department.
ACTION: Final rules.

SUMMARY: These final regulations implement provisions of the Age Discrimination Act of 1975, and the general, government wide regulation published in the Federal Register on June 12, 1979, codified at 45 CFR Part 90.

The Age Discrimination Act of 1975 prohibits discrimination on the basis of age in programs or activities receiving Federal financial assistance. The Act also contains certain exceptions that permit, under limited circumstances, use of age distinctions or factors other than age that may have a disproportionate effect on the basis of age. The Act applies to persons of all ages.

These final regulations are designed to guide the actions of recipients of financial assistance from HHS. The regulations incorporate the basic standards for determining what is age discrimination that were set forth in the general regulations. They discuss the responsibilities of HHS recipients and the investigations, conciliation and enforcement procedures HHS will use to ensure compliance with the Act.

EFFECTIVE DATE: January 27, 1983.

FOR FURTHER INFORMATION CONTACT: Kathleen A. O'Brien, Office for Civil Rights, Office of Program Operations, Investigations Division, HHS, Room 5519 HHS Cohen Building, 300 Independence Avenue S.W., Washington, D.C. 20201. (202) 619-2829.

SUPPLEMENTARY INFORMATION: The preamble to the final regulations, containing supplementary information, is divided into the following six sections:

1. Background - provides a brief history of the development of the Act and these regulations.
2. Regulatory Procedures - explains compliance with various regulatory requirements.
3. Rulemaking History - describes the steps taken to secure public participation in the development of the age discrimination regulations.
4. Overview of the Regulations - summarizes the contents of final regulations and explains any changes made from the proposed regulations published on September 24, 1979.
5. Important Questions About the Regulations - answers some important questions raised during the development of these regulations.
6. Examples of How HHS Interprets the Exceptions - illustrates how the exceptions might be applied to hypothetical situations involving HHS recipients.

I. Background

In November 1975 Congress enacted the Age Discrimination Act (42 U.S.C. 6101 et seq.) as part of the amendments to the Older Americans Act (Pub. L. 94-135). The Act prohibits discrimination on the basis of age in all programs and activities receiving Federal financial assistance.

The Act prohibits recipients of Federal financial assistance from taking actions that result in denying or limiting services or otherwise discriminating on the basis of age. The Act also contains certain exceptions that permit, under limited circumstances, use of age distinctions or factors other than age that may have a disproportionate effect on the basis of age.

Like other civil rights statutes, the Act applies only to programs or activities in which there is an intermediary (recipient) standing between the Federal financial assistance and the ultimate beneficiary of that assistance. The Act does not apply to programs of direct assistance (such as the Social Security program) in which Federal funds flow directly and unconditionally from the Federal government to the individual beneficiary of those funds.

Prior to the development of any regulations, the Act required the Commission on Civil Rights to conduct a study of age discrimination in federally funded programs and activities. The Commission transmitted its study tot he President and the Congress on January 10, 1978. The Commission published the second part of its study in January 1979. The Act also required each affected Federal agency to respond to the Commission's findings and recommendations, and provided time for the Congress to consider amendments to the Act.

After receipt of the report from the Commission on Civil Rights and the Federal agency responses to that report, the Congress considered amendments to the Age Discrimination Act. In October 1978, Congress amended the Act (Pub. L. 95-478). The amendments: (1) Added a private right of action to the Age Discrimination Act; (2) provided a mechanism for the disbursal to alternate recipients of funds that have been withheld under the Age Discrimination Act; (3) added a requirement that the Department of Health, Education and Welfare (now HHS) approve the final regulations of other Federal agencies; (4) made the effective date of regulations implementing the Act no earlier than July 1, 1979; (5) required annual reports to the Congress on progress in implementing the Act; and (6) removed the word "unreasonable" from the Act's statement of purpose. The 1978 amendments left intact the exceptions to the general prohibition against age discrimination contained in the 1975 Act. The amended Act continues to apply to persons of all ages.

The Act requires HEW to issue proposed and then final general regulations setting standards to be followed by all Federal departments and agencies in implementing the Act. HEW issued proposed general regulations on December 1, 1978 and final general regulations on June 12, 1979. Those general regulations and the prohibition against age discrimination became effective on July 1, 1979.

The Act requires each department or agency which operates programs of Federal financial assistance to issue proposed and then final regulations which must be consistent with the general regulations. The Secretary of HEW (now HHS) must approve all agency and department regulations.

On September 24, 1979, HEW issued proposed age discrimination regulations governing the actions of recipients of HEW funds. In May 1980 HEW became HHS according to the Department of Education Organization Act (Pub. L. 96-88). These are the final HHS age discrimination regulations.

II. Regulatory Procedures

Impact Analysis Executive Order 12291

Executive Order 12291 requires that a regulatory impact analysis be prepared for major rules. A major rule is defined in the Order an any rule that has an annual effect on the national economy of $100 million or more-or certain other specified effects. The Department concludes that the regulations implementing the Age Discrimination Act are not major rules within the meaning of the Executive Order because they do not have an effect on the economy of $100 million or more, or otherwise meet the threshold criteria.

Regulatory Flexibility Act of 1980:

The Regulatory Flexibility Act (5 U.S.C. Ch. 6) requires the Federal government to anticipate and reduce the impact of rules an paperwork requirements on small businesses. For each rule with a "significant economic impact on a substantial number of small entities" an analysis must be prepared describing the rule's impact on small entities. Small entities are defined by the Act to include small businesses, small gateway.html organizations, and small governmental entities. Based on the cost analysis of the age regulation, the Department finds that the effect of the age regulations on small entities is minimal. Therefore, a regulatory flexibility analysis is not required.

Paperwork Reduction Act
(Recordkeeping and Reporting Requirements)

These proposed rules place no new reporting or data collection requirements on recipients which require OMB clearance pursuant to the Paperwork Reduction Act.

III. Rulemaking History

HHS has been vitally concerned about the need for public participation in the development of these regulations because of the substantial impact the Age Discrimination Act could have on the operation of federally assisted programs.

As a first step in its obligation to issue general, government-wide regulations, HEW published in the Federal Register its Notice of Intent to Issue Age Discrimination Regulations (NOI) on March 2, 1978 (42 FR 5756). The NOI briefly identified some of the major issues addressed later in the regulatory process.

The Notice of Proposed Rulemaking (NPRM) for the general regulations was published in the Federal Register (42 FR 56428-56446) on December 1, 1978. At certain key places in the proposed general regulations, HEW presented options for public consideration and comment. Publication of the proposed rules was followed by a 90-day comment period.

HEW distributed more than 16,000 copies of the proposed general regulations. Copies were mailed to every member of Congress, every State governor, the head of every Federal agency that provides Federal financial assistance, administrators of federally assisted programs, recipients of Federal funds at the State and local levels, interested groups and individuals. In January and early February 1979, HEW held public hearings in Washington, D.C. and in each of HEW's 10 regions in order to obtain public comment on the proposed general regulations. A total of 170 witnesses made presentations at those hearings. In addition, 246 written comments were received. The comments and verbatim transcripts from the 11 hearings were analyzed and used in the development of the final general regulations published on June 12, 1979.

HEW published its own proposed regulations setting out the age discrimination requirements for its recipient on September 24, 1979. The Department, primarily through its Regional Offices, carried out a major distribution of the proposed regulations to HEW recipients and interested organizations and individuals. Over 40,000 copies of the proposed rules were distributed during the 60 day public comment period.

In addition, staff from the Age Discrimination Task Force conducted informational meetings in Wisconsin, Oregon, Florida and Washington, D.C. during October and early November 1979 to explain the requirements of both sets of regulations. Seventy-two persons sent written comments containing suggestions for improving the proposed regulations. Appendix A to these final regulations contains an analysis of the comments received and responses to those comments.

Implementation by HHS of the age discrimination regulations provides several more opportunities for public comment. Twelve months after the publication of these final regulations HHS will publish the results of a review of the age distinctions it imposes on its recipients by means of regulations, policies and administrative practices. The review, which will be published for public comment, is designed to determine whether each age distinction is permissible under the Act and implementing regulations. HHS will no longer adopt new age distinctions in the administration of its programs of financial assistance unless the age distinction meets the requirements of these regulations and has been published in a regulation after opportunity for public comment. Finally, HHS will examine the effectiveness of these regulations after 30 months, and publish its assessment for comment in the Federal Register.

IV. Overview of the Regulations

The following paragraphs summarize the text of the final HHS age discrimination regulations and explain any changes that have been made as a result of the public participation process. The final regulations are divided into 4 subparts:

Subpart A - General
Subpart B - Standards for Determining Age Discrimination
Subpart C - Duties of HHS Recipients
Subpart D - Investigation, Conciliation and Enforcement Procedures

There are also two appendices. Appendix A contains an analysis of the public comments; Appendix B contains a listing of the age distinctions found in statutes and regulations governing HHS assisted programs.

Subpart A - General

Subpart A explains the purpose of the HHS age discrimination regulations, which is to set out the Department's policies and procedures under the Act and the general regulations. (91.1) These regulations apply to each HHS recipient and to all programs or activities receiving Federal financial assistance from HHS. (91.2)

Although the Act generally covers all programs and activities that receive Federal financial assistance, it does not apply to any age distinction "established under authority of any law" which provides benefits or establishes criteria for participation on the basis age or in age related terms. Thus, age distinctions that are "established under authority of any law" may continue in use. These regulations adopt without change the definition of "any law" established in the general regulations. Therefore, these regulations do not apply to age distinctions contained in Federal statutes, State statutes, or local statutes or ordinances adopted by elected, general purpose legislative bodies. (91.2)

The Act also excludes from its coverage most employment practices, except in programs funded under the public service employment titles of the Comprehensive Employment and Training Act (CETA). However, the Age Discrimination in Employment Act (ADEA), administered by the Equal Employment Opportunity Commission (EEOC), continues to be the Federal statute that prohibits employment discrimination against most persons between the ages of 40 and 70 (except in Federal employment, where there is no upper age limit). Subpart A also defines terms used in these regulations. (91.3)

Subpart B - Standards for Determining Age Discrimination

Subpart B of these regulations incorporates the basic standards for determining what is age discrimination, which are set out in the general regulations.

The regulations state that no person in the United States shall, on the basis of age, be denied the benefits of, be excluded from participation in, or be subject to discrimination under, any program or activity receiving Federal financial assistance. (91.11)

The specific prohibited actions are patterned after the regulations issued under Title VI of the Civil Rights Act of 1964 (45 CFR Part 80). As a general rule, separate or different treatment which denies or limits service from, or participation in, a program receiving Federal funds will be prohibited by these regulations.

The Act does include some exceptions to the general rule against age discrimination. The regulations provide definitions for two terms that are essential to an understanding of these exceptions: "normal operation" and "statutory objective." (91.12)

The regulations adopt the four-part test established in the general regulations to determine when an explicit age distinction is necessary to the normal operation of a program or to the achievement of a statutory objective of a program. The test (see 91.13 of the regulations) requires that: The age distinction be used as a measure of another characteristic(s); the other characteristic(s) must be measured in order for the program to continue to operate normally or to meet a statutory objective; the other characteristic(s) is impractical to measure directly on an individual basis.

All parts of the test must be met for an explicit age distinction to satisfy one of these exceptions and to continue in use in a federally assisted program. This four-part test will be used to scrutinize age distinctions that are imposed by recipients in the administration of federally assisted programs, when the recipient alleges the distinction is necessary to the normal operation or the achievement of a statutory objective of a program and when the age distinction is not specifically authorized by a Federal, State, or local statute.

Recipients of Federal funds are also permitted to take an action otherwise prohibited by the Act, if the action is based on "reasonable factors other than age." In that event, the action may be taken even through it has a disproportionate effect on persons of different ages. The regulations require, however, that the factor bear a direct and substantial relationship to the program's normal operation or statutory objective. (91.14)

These regulations place on the recipient of HHS funds the burden of proving that an age distinction or other action falls within the exceptions discussed above. (91.15)

There are three other instances in which an HHS recipient may use age distinctions that would otherwise be prohibited by the Act and these regulations: (1) a recipient may take voluntary affirmative action to overcome the effects of conditions that have resulted in limited participation in the recipient's program on the basis of age (91.16); (2) a recipient may give special benefits to the elderly or to children (91.17); and (3) a recipient may comply with age distinctions contained in HHS regulations. (91.18)

Subpart C explains the duties of HHS recipients which are established by the General regulations.

HHS recipients have primary responsibility to ensure that their programs and activities are in compliance with the Act, the general regulations and these regulations. Recipients must also maintain records to the extent required to determine compliance with the Act and its regulations. (91.31)

Where an HHS recipient passes on financial assistance to subrecipients, the recipient must notify subrecipients of their obligations under the Act and its regulations. HHS recipients must also inform beneficiaries about the protections provided by the Act and its regulations. (91.32)

Each recipient of Federal financial assistance must sign an assurance that it will comply with the Act and its regulations. (91.33)

HHS may require recipients employing the equivalent of 15 or more full-time employees to examine their use of age distinctions under the Act as part of compliance review or a complaint investigation conducted by the Department. (91.33)

This self-evaluation requirements has been revised from the provision contained in the government-wide regulation and the Notice of Proposed Rule Making. The prior versions would have required all recipients employing 15 or more employees to complete a written self-evaluation. Section 91.33 states that such recipients may be required to undertake a self-evaluation as part of a compliance review and complaint investigation conducted by the Department. The change is based upon HHS' determination that to be consistent with the requirements of the Paperwork Reduction Act of 1980, enacted after the publication of the NPRN, the paperwork burden associated with the self-evaluation must be limited to recipients where circumstances indicate, in connection with a compliance review of complaint investigation, the need for the self-evaluation.

Each HHS recipient must keep records and make available to HHS upon request information that HHS determines is necessary to establish whether the recipient is in compliance with the Act and its regulations. Recipients must also allow HHS reasonable access to books and records to the extent HHS finds necessary to determine compliance with the Act and its regulations. (91.34)

Subpart D - Investigation, Conciliation and Enforcement Procedures

Subpart D of these regulations establishes the procedures HHS will use in its investigation, conciliation and enforcement activities. These procedures are closely tied to requirements in the general regulations, primarily in Subpart D. Additional information on the filing of complaints and on mediation is provided in Section V of this preamble.

HHS may conduct compliance or pre-award reviews or use other similar procedures to ensure compliance with the Act and its regulations. These procedures may be used even in the absence of a complaint against a recipient. The reviews may be as comprehensive as necessary to determine whether a violation has occurred. (91.41)

Complaints of age discrimination may be filed with HHS by an individual or a class or by a third party. The complainant must allege discrimination occurring on or after July 1, 1979. A complainant must file a complaint within 180 days from the date the complainant first knew of the alleged act of discrimination, although HHS may extend this time limit for good cause. The filing date for a complaint will be the date upon which the complaint is sufficient to be processed. A complaint must identify the parties involved and the date the complainant first had knowledge of the alleged violation, describe generally the practice complained of, signed by the complainant. HHS will notify the recipient and the complainant of their rights and obligations under the complaint procedure, including the right to have a representative at all stages of the process. HHS will permit a complainant to add information to a complaint when necessary to meet the requirements of a sufficient complaint. HHS will return to the complainant any complaint that does not fall within the jurisdiction of the Act and will explain the reason(s) why the complaint is outside the jurisdiction of the Act. (91.42)

HHS will refer to mediation all sufficient complaints that fall within the coverage of the Act. On June 12, 1979, the Secretary of HEW designated the Federal Mediation and Conciliation Service (FMCS) to manage the mediation process which was established by the general regulations for all ADA complaints. Complainants and recipients are required to participate in the effort to reach a mutually satisfactory mediated settlement of the complaint, although they need not meet with the mediator at the same time. Generally, mediation may last no more than 60 days from the date a complaint is filed with HHS. The mediator will have the authority to terminate the mediation at any time before the 60 day period if the process appears to have broken down. The mediator also has the authority to extend the 60 day mediation period where settlement is likely. A settlement based on terms satisfactory to both parties will be put in writing and sent to HHS. HHS will take no further action on a complaint that has been successfully mediated. The mediator will protect the confidentiality of all information obtained in the course of mediation. (91.43)

HHS will investigate complaints that are unresolved after mediation or are reopened because the mediation agreement is violated. HHS will first attempt to resolve the complaint through informal fact-finding. An agreement reached during informal investigation will be signed by both parties and by an HHS official. The agreement will not affect any other enforcement by HHS. The settlement is not a finding of discrimination against a recipient. If these informal effects do not succeed, HHS will develop formal findings through further investigation of the complaint. (91.44)

A recipient may not intimidate or retaliate against any person who attempts to exercise a right protected by the Act or who participates in any aspect of the proceedings used to resolve allegations of age discrimination. (91.45)

The procedures for securing compliance with the Act and these regulations are taken from the general regulations. The procedures include termination of Federal funds after an opportunity for a hearing on the record, referral to the Department of Justice, or the use of the services of any Federal, State or local government agency to correct a violation. These regulations include a provision for the deferral of new Federal financial assistance from HHS when termination proceedings are initiated. (�91.46)

HHS will use the procedural provisions contained in the regulations implementing Title VI of the Civil Rights Act of 1964 to enforce the HHS age discrimination regulations. These provisions are at 45 CFR 80.9-80.11 and 45 CFR 81. (91.47)

Where HHS finds that a recipient has discriminated on the basis of age, HHS may require the recipient to take necessary remedial action to overcome the effects of the discrimination. (91.48)

When HHS withholds funds from a recipient (according to the provisions of 91.46), the Secretary may disburse those funds to an alternate recipient. The alternate recipient must demonstrate the ability to comply with these regulations and to achieve the goals of the Federal statute which authorizes the financial assistance. (91.49)

Complainants may file civil actions when administrative remedies are exhausted. Administrative remedies are exhausted if either 180 days have elapsed since the complaint and HHS has made no finding, or if HHS issues a finding in favor of the recipient. The complainant must indicate, at the time the suit in a U.S. district court where the recipient is found or transacts business.

The complainant must indicate, at the time the suit is filed, if attorney's fees will be demanded in the event that the complainant is successful. No action can be brought if the same alleged violation by the same recipient is the subject of a pending action in any U.S. court. Complainants who wish to file an action must give 30 days notice to the Attorney General, the Secretary, and the recipient. (91.50)

Appendices

These regulations contain two appendices. Appendix A is an analysis of the comments received on the proposed rules and the responses to those comments. Appendix B is a listing of age distinctions contained in the statutes and regulations governing the operation of HHS financial assistance programs. This appendix is designed to aid recipients by identifying those age distinctions which are derived from Federal statutes and regulations. The list of age distinctions in Appendix B is preceded by a more detailed explanation of the purpose of the listing and how it is organized.

V. Important Questions

This section of the preamble answers some important questions about these regulations. Some of the material first appeared in the general regulations published in June 1979, but is repeated here because it is important to an understanding of the provisions which HHS has incorporated in these regulations. The other questions were raised during the public comment period on the proposed HEW regulations.

1. What Ages Does the Act Cover?

Section 303 of the Act prohibits discrimination on the basis of age in federally assisted programs or activities. Although the legislative history indicates Congressional concern for the problems of the elderly in particular, the Congress made it clear in its conference committee report that the Act is intended to apply to persons of all ages. Nowhere in the amendment process was there any discussion of limiting or changing the coverage of the Act. It continues to extend protection to persons of all ages.

Various advocacy groups for older persons suggested that HHS construe the general regulations to protect only the elderly to provide greater protection for older persons than for other age groups. This construction is not legally supportable in view of the legislative history and the plain language of the Act. Thus all regulations issued to implement the Act provide protection to persons of all ages.

2. When Is the Prohibition Against Age Discrimination Effective?

The Act provides that its prohibition of age discrimination becomes effective upon the issuance of regulations. Section 304 provides for the issuance of age discrimination regulations in two phases:

(a) HEW (HHS) publishes general government-wide regulations to implement the prohibition against age discrimination in federally assisted programs; and

(b) Each Federal agency (including HEW (HHS)) then publishes regulations specific to its programs and consistent with general regulations. The Act's prohibition of age discrimination became effective when the first set of regulations, the general regulations became effective on July 1, 1979. The general regulations established standards for determining what is age discrimination and procedures for enforcing the Act. All Federal agencies must adopt those standards in their agency specific regulations.

3. Where Can Complaints of Age Discrimination Be Filed With HHS?

Complaints involving HHS recipients and beneficiaries should be sent to: Office of Program Operations, Office for Civil Rights, Department of Health and Human Services, 330 Independence Avenue, S.W., Washington, D.C. 20201.

The complaint must allege age discrimination occurring after July 1, 1979. The complaint should: (a) Identify the parties involved; (b) give the date of the alleged violation or when the complainant first knew of the alleged violation; (c) generally describe what happened; and (d) be signed by the complainant.

HHS screens all complaints and refers those which describe actions covered by the Act and contain the necessary information to the FMCS for mediation. The FMCS began mediating age discrimination complaints on November 1, 1979.

The Act states that a complainant may file a civil action 180 days from the date the complaint was filed with the Federal agency if the agency has taken no action, or upon the date the agency makes a determination in favor of the recipient, whichever comes first. For purposes of exhaustion of administrative remedies within HHS, the 180 day period will run from the date the complaint is filed with HHS. In cases where HHS has not taken final action on a complaint and 180 days have passed, the complainant retains the option either to file a civil action, or have HHS continue to pursue the complaint through the administrative processes. HHS retains the option to continue its enforcement activities even if a private court suit is filed.

4. What Are the Rules Against Age Discrimination?

These regulations adopt without change the rules against age discrimination from the general regulations. The general regulations provide that, except as provided in the Act and its regulation, "* * * 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." It means that, unless permitted by one of the exceptions, recipients of HHS assistance may not, either directly or indirectly, do anything to exclude persons from their programs or activities on the basis of age. Nor may recipients do anything that is not permitted by one of the exceptions to deny or limit persons on the basis of their age in their efforts to participate in HHS assisted programs or activities.

The prohibition against age discrimination does not include an absolute prohibition against separate treatment on the basis of age. As a general rule, separate or different treatment which denies or limits services from, or participation in, a program receiving financial assistance from HHS would be prohibited by these regulations. Separate or different treatment which does not deny or limit services is allowable. Separate or different treatment may be necessary to normal operation or to the achievement of a statutory objective by the recipient may qualify as an exception under these regulations.

5. What Is the Meaning of the Exception for Age Distinctions "Established Under Authority of Any Law"?

The Age Discrimination Act applies to all programs and activities that receive Federal financial assistance. However, the Act does not apply to age distinctions "established under authority of any law" that provide benefits or establish criteria for participation on the basis of age or in age related terms. Age distinctions that qualify under this exemption do not require further scrutiny under these regulations.

The regulations define the term "any law" to mean Federal, State or local statute or ordinance adopted by an elected, general purpose legislative body. This provision does not provide an automatic exemption for age distinctions that are contained in regulations or in ordinances enacted by bodies which are not elected or are special-purpose even though elected, such as State or local school boards. The first part of Appendix B of these regulations contains a list of the age distinctions found in Federal statutes administered by HHS..

The exemption for age distinctions "established under authority of any law" applies to both explicit uses of age (e.g. a statute that defines an adult to be a person over age 18) and the use of age-related terms (e.g. statute that refer only to "adults" or "children" or "youths" without defining those terms explicitly). When a statute (Federal, State or local) uses, but does not define, an age-related term, HHS will accept reasonable definitions of those terms in regulations without further scrutiny. Thus, for example, HHS would not ordinarily question a definition of "child" as a person up to age 18, but would seek further justification of a regulation which defines "child" as a person up to age 30.

6. When Is An Age Distinction Necessary to the Normal Operation or to the Achievement of a Statutory Objective of a Program or Activity?

These regulations incorporate from the general regulations the four-part test for determining when an explicit age distinction is necessary to the normal operation of a program or activity, or to the achievement of a statutory objective. HHS will use this four-part test to scrutinize age distinctions imposed in the administration of federally assisted programs, but which are not explicitly authorized by a Federal, State or local statute or ordinance adopted by an elected, general-purpose legislative body. If the age distinction in question fails any part of the four-part test, the recipient of HHS funds may not continue to use that age distinction.

The four-part test is designed to require careful scrutiny of age distinctions in programs receiving Federal financial assistance and to weed out age distinction that are neither directly related to an essential characteristic of a program nor based on explicitly stated objectives of a law. It is not intended to serve as a basis for permitting continued use of age distinctions for the sake of administrative convenience, if this results in denial or limitation of services on the basis of age.

HHS encourages its recipients to apply every age distinction flexibility; that is, to permit a person who demonstrates eligibility to participate in the activity or program even though he or she would otherwise be barred by the age distinction. Other things being equal, a distinction under review is more likely to qualify under any of the exceptions if it does not automatically bar all those who do not meet the age requirements.

7. When Is the Use of a Factor Other Than Age Exempted From the Coverage of These Regulations?

The Age Discrimination Act permits a recipient of Federal funds to examine its use of factors other than age which have a disproportionate effect on the basis of age in light of the individual facts and circumstances surrounding their use. This examination will determine whether use of the factor other than age is sufficiently related to achieving a legitimate program purpose and therefore justifies limiting or denying services or participation to persons disproportionately excluded because of age.

8. What Are "Special Benefits" for the Elderly or Children?

These regulations incorporate the provision of the general regulations permitting a recipient of a program to provide special benefits for children or the elderly.

The special benefits provision resulted from HHS' belief that Congress did not intend to disturb the practice of providing special benefits to children or the elderly. These special benefits often take the form of special discounts or reduced fees for the elderly in a federally funded program.

The provision allowing special benefits has been revised somewhat from that contained in the government-wide regulations and the Notice of Proposed Rule Making to make it clear that special benefits are presumed to be within the statutory exemption applicable to actions necessary to the normal operation of a program. The earlier versions stated that special benefits to the elderly or to children shall be presumed to be voluntary affirmative action to overcome the effects of past underparticipation in the recipient's program by the elderly or children so long as the special benefits do not have the effect excluding otherwise eligible persons from participation in the program. HHS has determined that the new wording is more consistent with the Congressional intent that the normal operation of programs properly designed to provide for special benefits for the elderly or children not be disturbed. Thus, such special benefits are entitled to a presumption of validity. In reviewing such special benefits in specific cases to insure that they are in fact consistent with the Act and Congressional intent, HHS will consider the rationale for the special benefits, the effect on other individuals, and all other relevant factors.

The regulations leave to the reasonable discretion of the recipient the definition of who qualifies as "children" or "the elderly" for purposes of receiving a special benefit.

9. What Is The Effect of Age Distinctions Contained in HHS Regulations?

A new � 91.18 has been added to make explicit what is implicit in � 90.32 of the government-wide regulation. Section 90.32 of the government-wide regulation established the mechanism for determining that age distinctions imposed by government agencies are consistent with Age Discrimination Act and implementing regulations. Under this Section, agencies must within 12 months, review age distinctions imposed on recipients by regulations, policies and administrative practices. Each agency must then publish, for public comment, in the Federal Register a comprehensive accounting of all such age distinctions, listing those to be continued, the justification for their continuance, those to be adopted by regulations or those to be eliminated. After this 12-month period, agencies may not continue any age distinction that has not already been adopted by regulation or is adopted by regulations under the Administrative Procedure Act using the notice and comment procedures specified in 5 U.S.C. 553. In addition, beginning with the effective date of an agency's final regulations, an agency may not impose a new age distinction unless it is adopted by regulation under the Administrative Procedure Act using these notice and comment procedures.

This comprehensive mechanism for carefully scrutinizing age distinctions imposed by Federal agencies on recipient to insure their consistency with the Age Discrimination Act and implementing regulations is based upon public participation and the rulemaking process of the Administrative Procedure Act, through which the appropriateness and validity of any age distinctions can be thoroughly evaluated. Implicit in this far-reaching mechanism is that age distinctions contained in regulations adopted under the Administrative Procedure Act are entitled to a very strong presumption of permissibility. The new �91.18 makes this explicit by providing that any age distinction contained in a rule or regulation issued by HHS will be presumed to be within the statutory objective of the program to which the rule or regulation applies. This does not mean that such age distinctions are immune from additional scrutiny to insure their consistency with the Age Discrimination Act and implementing regulations, but that such further scrutiny will be under the general standards of the Act, rather than under the process established for previously unreviewed age distinctions, in which the recipient has the burden of proving that the detailed standards contained in �91.13 of the regulation have been met. Since the review process or rulemaking proceeding subjected the age distinctions to scrutiny on all possible bases, it is appropriate that any subsequent review be limited to determining violations of fundamental statutory requirements. This provision thus reaffirms that recipients upon whom age distinctions are imposed by HHS regulations adopted pursuant to statutory authority and under the Administrative Procedure Act, as well as the public, can be assured that such age distinctions have been carefully considered and are believed by HHS to be permissible under the Age Discrimination Act and implementing regulations.

10. Do the Regulations Require Proportional Allocation of Services and Funds by Age?

Some believe that certain age groups, especially the elderly, do not get their "fair share" of funds or program slots in certain federally funded programs. These persons argue that the serious underrepresentation of certain age groups in the allocations of program funds or service is age discrimination and should be prohibited by these regulations.

These regulations do not require proportional program participation by age or the proportional allocation of funds by age. However, disproportionate allocation of funds or program participation may be one element that triggers an examination of whether age discrimination exists in the federally funded program or activity. If further inquiry is necessary, the recipient may show that the disparity in rates of participation, fund allocation, or services has nondiscriminatory causes.

11. How Do These Regulations Affect the Relationship Between Similar General and Age-Targeted Programs?

Federal funds are used to support a number of programs that provide similar services or benefits both to the general population and to a selected age group within the population. Does the existence of an age-targeted program in any way relieve the general program of its obligation to serve the age group eligible for the age-targeted program?

HHS believes that any deviation from a policy of serving all eligible person regardless of age that results in a denial or limitation of service on the basis of age is only permissible if that action can satisfy one of the exceptions in these regulations. A general program can focus its services by referring persons to existing age-targeted programs only if those actions do not result in the denial of services to the individual or in the provision of lesser or different services.

12. Why is Mediation a Required Step in Resolving complaints of Age Discrimination?

HHS supports mediation as an important innovation in the resolution of age discrimination complaints. The mediation process represents an effort to provide faster and more creative resolution of complaints through informal methods of dispute resolution. While mediation does represent a new step in the complaint resolution process, the experience in resolving complaints under other civil rights statutes indicates that the 60 days allowed for mediation will not significantly delay the enforcement process.

Mediation is being used with increasing success to resolve disputes between parties outside the traditional area of labor management negotiations. The most important feature of the mediation process is that is will be under the supervision of an impartial third party, a mediator assigned by the FMCS. FMCS was designated by the Secretary of HEW to mediate age discrimination complaints for all Federal departments and agencies which distribute Federal financial assistance. The mediator is in no way connected with HHS or the funding agency in the age discrimination dispute. Instead, mediators have been recruited and selected by the FMCS. Each mediator is assigned to the dispute by the FMCS without consultation with HHS.

These mediators have been specially trained in procedures for resolving disputes and in the requirements of the Age Discrimination Act and its implementing regulations. The mediator will contact the two parties and explain the procedures to both the complainant and the recipient. Mediation does not necessarily mean that the two parties to the dispute must meet face-to-face; each may meet separately or otherwise discuss the matter with the mediator. Since the mediated settlement must be satisfactory to both parties, neither the complainant nor the recipient is compelled to settle the complainant. A complainant who believes that he or she is not receiving full satisfaction in the mediation process need not to agree to a settlement of the dispute. A complainant will have to wait no more than 60 days for the complaint to be returned to HHS for its investigation to begin.

This 60 day period will count as part of the 180 days which HHS has to resolve the complaint before a court action can be filed by the complainant. The 60 day period may be extended the mediator with the concurrence of HHS, for not more than 30 days if the mediator determines that agreement will likely be reached during the extended period.

The mediation process has been designed to minimize expenses to the parties. The mediator can travel to the location of the parties and the services of mediator will be paid for by the Federal government. The mediation itself is conducted in an informal atmosphere in which both sides attempt to resolve the dispute in a mutually satisfactory manner. This should encourage the parties to discuss their dispute without resort efforts to build a formal legal case.

HHS believes that the Age Discrimination Act offers a unique opportunity to try this innovative approach to the resolution of disputes. The mediation process is being monitored very closely as it is used to resolve age discrimination complaints received by all recipients of Federal financial assistance. The results of this evaluation will be reported as part of the required review of the effectiveness of the general age discrimination regulations.

VI. Examples of How HHS Interprets the Exceptions to the Prohibition Against Age Discrimination

This section illustrates how HHS would apply the exceptions to the prohibition against age discrimination in situations involving recipients of HHS funds. The examples are intended to illustrate how HHS would apply the standards in these regulations to analyze whether use of any age distinction or a factor other than age is permissible or impermissible under these regulations. The examples are purely hypothetical. Each assumes that the institution involved received funds from HHS and that no exception to the prohibition against age discrimination applies other than the one being discussed. The reader should keep in mind that even slightly different factual situations may require a different analysis and may result in different conclusion. Thus, recipients of HHS funds should realize the need still exists for case-by-case analysis of any action that raises questions of compliance with the requirements of these regulations.

A. Actions Involving Separate Treatment (91.11)

Examples-Permissible Separate Treatment:

• A hospital which receives funds from HHS treats children under 16 years of age in a separate unit from the adults served by the hospital. However, essentially comparable services are provided both age groups, including laboratory facilities, specialized care and treatment, and access to the facilities. This separate treatment of the two age groups does not result in a denial or limitation of services, and the practice, therefore is permissible .
• A sports league sponsored by a local youth program which receives Federal Title XX funds separates children into three or more age groupings for sports which require physical development or emotional maturity. Essentially comparable sports program are provided for each age group. The groupings by age are permissible because no denial or limitation of service results.

Example-Prohibited Separate Treatment:

• A State mental hospital has a separate geriatrics wing. Patients in this wing have less supervision, receive fewer therapeutic visits, have fewer recreational opportunities, and receive less rehabilitation. Because a denial or limitation of service results, this separate treatment would be prohibited (unless it could be justified under one of the Act's exceptions).

B. Age Distinctions "Established Under Authority of Any Law" (91.12)

Examples-Age distinctions in HHS-administered Federal statutes:

• The Health Maintenance Organization (HMO) Act limits enrollment of beneficiaries entitled to benefits under Title XVIII of the Social Security Act (SSA). The SSA requires ``* * * each health maintenance organization with which the Secretary enters into a contract under this section shall have an enrolled membership at least half of which consists of individuals who have not attained age 65." (42 U.S.C. 1395mm) [Emphasis added]
• The Aid to Families with Dependent Children (AFDC) program enables "each State to furnish financial assistance or rehabilitation and other services to needy dependent children and the parents or relatives with whom they are living. The term * * * child is defined * * * as * * * (A) under the age of 18; or (B) at the option of the State under the age of 19 and a full-time student * * *," (42 U.S.C. 601 et seq.) [Emphasis added]
• The Older Americans Act authorizes the provision of "assistance in the development of new or improved programs to help older persons." Specifically, it requires States in their State plans to "provide with respect to nutrition services that each project providing nutrition services will be available to individuals aged 60 or older, and to their spouses * * *" (42 U.S.C. 3027) [Emphasis Added]

Examples-Age distinctions in State and local statutes which may affect HHS funded programs:

• Age limits for requiring parental consent for medical procedures.
• Age limits for services to those in the "juvenile" justice system.
• Age limits for compulsory health procedures, such as particular vaccinations against disease.
• Maximum age limits for "under age" wards of the State.

C. Age Distinctions That Are Necessary To Normal Operation or to the Achievement of a Statutory Objective. (91.13)

To qualify for the normal operation or statutory objective exception, an explicit use of age must meet all four parts of the test set out in � 91.31 which requires that:

• (a) the age distinction must be used as a measure of another characteristic(s);
• (b) the other characteristic(s) must be measured for the program to operate normally or to meet its satisfactory objective;
• (c) the other characteristic(s) can be reasonably measured by using age; and
• (d) it is impractical to measure the other characteristic(s) for each individual participant.

Examples-Permissible Uses of Age Related To Normal Operation:

• Head Start grantees operate programs which provide comprehensive health, nutritional, educational, social, and other services for children who have not reached compulsory school age. Neither the statute creating Head Start nor its implementing regulations specifies a minimum age limit for Head Start participants.
  
  A local Head Start grantee operates a center that offers a highly structured program stressing group activities to promote the educational, social and nutritional development of the children enrolled. Because of the nature of the center's program, its physical layout, the training and experience of its staff, the center generally limits enrollment in its program to children who are at least 3 years old.
  
  Analysis of the Use of Age:
  • The minimum age restriction is used as an approximation of the level of development and the capacity for self-discipline that the child must process in order to profit from this particular center's pre-school child development program; and
  • A child's readiness for this pre-school child development program must be measured for the Head Start center to meet its objectives. The enrollment of younger children who are not ready for this program would require significant changes in the program such as providing greater assistance in feeding, changing diapers, clothes, etc., which would impair the center's ability to meet its objectives; and
  • Age 3 reasonably approximates the level of development at which children are able to respond to simple commands, move about without assistance, feed themselves, control body functions and perform other basic activities that are an essential part of this center's pre-school child development activities; and
  • It is impractical to measure directly and individually each child's level of physical, mental, and emotional development.
  
  The minimum age restrictions passes all four parts of the test and, therefore, is necessary for the normal operation of the Head Start center.
• A community organization receiving Federal financial assistance provides a drug and alcohol education program to young people between the ages of 12 and 20. The organization claims that its objective is to prevent young people from first taking drugs.
  
  Analysis of the Use of Age:
  • Age 12-20 are used as a measure of the period when persons are first confronted with the decision of whether or not to use particular drugs; and
  • This period of decision must be measured in order for the organization's objective (prevention rather than treatment) to be met; and
  • Ages 12-20 are a reasonable measure of when youth are confronted with decisions to use particular drugs; and
  • It is impractical to measure on an individual basis the point in time when an individual is first faced with the decision about whether or not to use drugs.
  
  The use of age passes all parts of the four-part test, and therefore, is necessary for the normal operation of the program.

Examples-Prohibited Uses of Age Related to Normal Operation:

• A medical school generally does not admit persons age 35 and over. This practice results in turning away qualified applicants over 35.
  
  The school claims that it has as an objective, the teaching of qualified medical students who, upon graduation, will practice as long as possible. The school believes that this objective requires it to select younger applicants over older ones.
  
  Analysis of the Use of Age:
  • Age is used as an approximation of the potential years of medical practice after graduation;
  • The approximation of the potential years of practice after graduation is not necessary to the normal operation of the medical school. The basic objective of the medical school is to train competent and qualified medical doctors. The achievement of a high average longevity of practice for its graduates cannot be considered a medical school's program objective under the Act. The admission of qualified persons over the age 35 does not require significant changes in the medical school program which would impair its ability to educate physicians. (The use of age fails this part of the test.)
  • The age of an applicant may be a reasonable approximation of the longevity of practice; and
  • It is not possible to measure directly the actual longevity for the purpose of achieving greater longevity of practice does not pass part (b) of the test. Therefore, the use of age is not necessary to the normal operation of this medical school's program.
• A university which receives funds from HHS for its graduate social work program limits fellowships in the program to persons under age 25. The university claims that the fellowship program is designed to encourage talented but inexperienced and untrained individuals to pursue graduate training in social work.
  
  Analysis of the Use of Age:
  • Age is used as an approximation of lack of experience and training in social work.
  • Measurement of the lack of experience and training is necessary to the normal operation of the department's graduate fellowship program.
  • Age, however, is not a reasonable measure of an individual's experience or training. Talented but inexperienced and untrained individuals of all ages may be seeking graduate aid through the social work program. (The use of the age fails this part of the test.)
  • Lack of experience and training in the field of social work can reasonably be measured directly on an individual basis. (The use of the age fails this part of the test.)
  • 
    The age limitation on the university's graduate social work fellowships does not pass either parts (c) or (d) of the four-part test. The use of age, therefore is not necessary to the normal operation of the graduate fellowship program.
• A CPR program run by a local health department does not train anyone over age 65 to do CPR. The program claims that its objective is to train individuals who have the physical capability to perform CPR on heart attack victims, and that persons over 65 are unlikely to have that capability.
  
  Analysis of the Use of Age:
  • Age is used as an approximation of the physical ability to perform CPR.
  • The physical ability to perform CPR must be measured for the program to achieve its objective.
  • Age, however, is not a reasonable measure of an individual's ability to perform CPR. (The use of age fails this part of the test.)
  • Physical ability to perform CPR can be measured directly. Trainees can be tested for strength and endurance and can be screened for medical problems. (The use of the age fails this part of the test.)
  
  The use of age 65 by the CPR training program does not pass parts (c) and (d) of the four-part test. The use of age, therefore, is not necessary to the normal operation of the CPR program.

Examples-Permissible Uses of Age Related to Statutory Objectives:

• Applications for grants for disease control programs under the Public Health Service Act can only be approved if they "contain assurances satisfactory to the Secretary that * * * the applicant will conduct such programs as may be necessary (i) to develop an awareness in those persons in the area served by the applicant who are more susceptible to the disease or conditions * * * of appropriate preventive behavior and measures (including immunization) and diagnostic procedures for such disease, and (ii)
• 
  to facilitate their access to such measures and procedures." (42 U.S.C. 247b).
  A local public health program generally gives priority in immunization to age categories most susceptible to the disease (e.g. the immunization program is directed to children under 15).
  
  Analysis of the Use of Age:
  • Age is used as a measure of susceptibility to a particular disease; e.g. ages 1-14 are more susceptibility to measles;
  • Susceptibility to the disease must be measured for the statutory objective to be met;
  • Age is a reasonable measure of susceptibility to the particular disease; e.g. epidemiological evidence shows that children ages 1-14 are more susceptible to measles;
  • Susceptibility to the disease is impractical to measure directly on an individual basis.
  
  The use of age passes all parts of the four-part test. Thus, age is necessary to the achievement of the explicit statutory objective to give priority in immunization to age categories most susceptible to the disease in question.

Examples-Prohibited Uses of Age Related to Statutory Objectives:

• The statutory objective of the Federal Work Incentive Program (WIN) is to provide job training and placement services to individuals receiving Aid to Families with Dependent Children (AFDC) so that they may be employed and ultimately become self-sufficient. A local WIN office takes the age of the applicant into account and gives a lower priority for the older persons who will be more difficult to place in employment.
  
  
  Analysis of the Use of Age:
  • Age is used as an approximation of the individual's employability after training had been completed.
  • The selection of applicants most likely to be employed following the training is necessary to achieve the statutory objective.
  • Age is not a reasonable measure of the employability of an applicant. (The use of age fails this part of the test.)
  • Employability can reasonably be measured on an individual basis. (The use of age fails this part of the test.)
  
  The use of age as a factor in screening applicants for training under the WIN program does not pass parts (c) or (d) and, therefore, is not necessary to achieve the objective of the Federal WIN program.
   
• Title IV of the Social Security Act defines child welfare
  services as "public social services which supplement, or substitute for, parental care and supervision for the purpose of * * * protecting and promoting the welfare of children, including * * * where needed, the provision of adequate care of children away from their homes in foster family homes."
  A State welfare agency sets a maximum age limit of 65 for foster parents. They claim that to meet their statutory objective of providing "adequate care" they cannot select anyone over 65 to be a foster parent.
  Analysis of the Use of Age:
  • Age is used as an approximation of the physical stamina and emotional maturity required to provide parental supervision to children.
  • It is necessary to assess ability to provide parental supervision to achieve the program statutory objective of "adequate" foster care.
  • Age is not a reasonable measure of the physical and emotional ability to provide parental supervision to a child. Physical stamina and emotional maturity are highly variable in adults and while there might be variations as people age, there is no specific age beyond which an individual does not had sufficient physical stamina and emotional resources to be an "adequate" foster parent. (The use of age fails this part of the test.)
  • Applicants to be foster parents are screened individually-there is no reason why an individual's physical stamina and emotional maturity cannot be assessed directly at that time. (The use of age fails this part of this test.)

D. The Use of Factors Other Than Age (91.14)

Example-Permissible Uses of Factors Other than Age:

• A skills training program which receives Federal Work Incentive Program (WIN) funds uses a physical fitness test as a factor for selecting participants to train for a certain job. The job involves frequent heavy lifting and other demands for physical strength and stamina. Even though older persons might fail the test more frequently than younger persons, the physical fitness test measures a characteristic that bears a direct and substantial relationship to the job which persons are being trained and, therefore, is permissible under the Act.

Example-Prohibited Uses of Factors Other than Age:

• A training program which receives WIN funds uses a physical fitness test to select participants for a clerical training program. It is claimed that persons who pass the test are likely to do better work than those who are unable to pass the test. Even if this were true, the relationship between the requirements of the test and the requirements of the type of job for which training is being offered is not direct and substantial. It is so tenuous and limited that it will not justify the test's age discriminatory effect. In this situation, use of the test would violate the Act.

List of Subjects in 45 CFR Part 91

Aged, Civil rights
Dated: December 1, 1982

Betty Lou Dotson,

Director Office for Civil Rights Department of Health and Human Services.

Approved: December 6, 1982
Richard S. Schweiker,
Secretary, Department of Health and Human Services

The Department of Health and Human Services adds Part 91 to Title 45 of the Code of Federal Regulations as set forth below:

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

Subpart A-General

Sec.

91.1 What is the purpose of the Age Discrimination Act of 1975?

91.2 What is the purpose of HHS' age discrimination regulations?

91.3 To what programs do these regulations apply?

91.4 Definitions of terms used in these regulations.

Subpart B-Standards for Determining Age Discrimination

91.11 Rules against age discrimination.

91.12 Definitions of "normal operation" and "statutory objective."

91.13 Exceptions to the rules against age discrimination: Normal operation or statutory objective of any program or activity.

91.14 Exceptions to the rules against age discrimination: Reasonable factors other than age.

91.15 Burden of proof

91.16 Affirmative action by recipients.

91.17 Special benefits for children and the elderly.

91.18 Age distinctions contained in HHS regulations.

Subpart C-Duties of HHS Recipients

91.31 General responsibilities.

91.32 Notice to subrecipients and beneficiaries.

91.33 Assurance of compliance and recipient assessment of age distinctions.

91.34 Information requirements.

Subpart D-Investigations, Conciliation, and Enforcement Procedures

91.41 Compliance reviews.

91.42 Complaints.

91.43 Mediation.

91.44 Investigation.

91.45 Prohibition against intimidation or retaliation.

91.46 Compliance procedure.

91.47 Hearings, decisions, post-termination proceedings.

91.48 Remedial action by recipient.

91.49 Alternate funds disbursal procedure.

91.50 Exhaustion of administrative remedies.

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

Subpart A-General

• 91.1 What is the purpose of the Age Discrimination Act of 1975?

The Age Discrimination Act of 1975 as amended, is designed to prohibit discrimination on the basis of age in programs or activities receiving Federal financial assistance. The Act also permits federally assisted programs and activities, and recipients of Federal funds, to continue to use certain age distinctions and factors other than age which meet the requirements of the Act and these regulations.

• 91.2 What is the purpose of HHS' age discrimination regulations?

The purpose of these regulations is to set out HHS' policies and procedures under the Age Discrimination Act of 1975 and the general age discrimination regulations at 45 CFR Part 90.<1> The Act and the general regulations prohibit discrimination on the basis of age in programs or activities receiving Federal financial assistance. The Act and the general 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.

• 91.3 To what programs do these regulations apply?

(a) The Act and these regulations apply to each HHS recipient and to each program or activity operated by the recipient which receives or benefits from Federal financial assistance provided by HHS.

(b) The Act and 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 to 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 for any program or activity receiving Federal financial assistance for public service employment under the Comprehensive Employment and Training Act (CETA), (29 U.S.C. 801 et seq.)

• 91.4 Definition of terms used in these regulations.

As used in these regulations, the term: "Act" means the Age Discrimination Act of 1975, as amended, (Title III of Pub. L. 94-135).

"Action" means any act, activity, policy, rule, standard, or method of administration; or the use of any policy, rule, standard, or method of administration.

"Age" means how old a person is, or the number of years from the date of a person's birth.

"Age distinction" means any action using age or age-related term.

"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").

"Agency" means a Federal department or agency that is empowered to extend financial assistance.

"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 the agency provides or otherwise makes available assistance in the form of:

(a) Funds; or

(b) Services of Federal personnel; or

(c) Real and personal property or any interest in or use or property, including:

(1) Transfers or leases of property for less than fair market value or for reduced consideration; and

(2) Proceeds from a subsequent transfer or lease of property if the Federal share of its fair market value is not returned to the Federal Government.

"HHS" means the United States Department of Health and Human Services.

"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.

"Secretary" means the Secretary of the Department of Health and Human Services, or his or her designee.

"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 and has all the duties of a recipient in these regulations.

"United States" means the fifty States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, the Trust Territory of the Pacific Islands, the Northern Marianas, and the territories and possessions of the United States.

Subpart B-Standards for Determining Age Discrimination

• 91.11 Rule against age discrimination.

The rules stated in this section are limited by the exceptions contained in ��91.13 and 91.14 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, of subjecting them to discrimination under, a program or activity receiving Federal financial assistance.

(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.

• 91.12 Definitions of "normal operation" and "statutory objective."

For purpose of ��91.13 and 91.14, 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.

• 91.13 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 91.11, 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.

• 91.14 Exceptions to the rules against age discrimination: Reasonable factors other than age.

A recipient is permitted to take an action otherwise prohibited by Section 91.11 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 is 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.

• 91.15 Burden of proof.

The burden of proving that an age distinction or other action falls within the exceptions outlined in 91.13 and 91.14 is on the recipient of Federal financial assistance.

• 91.16 Affirmative Action by recipient.

Even in 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.

• 91.17 Special benefits for children and the elderly.

If a recipient operation a program provides special benefits to the elderly or to children, such use of age distinctions shall

be presumed to be necessary to the normal operation of the program, notwithstanding the provisions of 91.13.

• 91.18 Age distinctions contained in HHS regulations.

Any age distinctions contained in a rule or regulation issued by HHS shall be presumed to be necessary to the achievement of a statutory objective of the program to which the rule or regulation applies, notwithstanding the provisions of 91.13.

Subpart C-Duties of HHS Recipients

• 91.31 General responsibilities.

Each HHS recipient has primary responsibility to ensure that its programs and activities are in compliance with the Act and these regulations, and shall take steps to eliminate violations of the Act. A recipient also has responsibility to maintain records, provide information, and to afford HHS access to its records to the extent HHS finds necessary to determine whether the recipient is in compliance with the Act and these regulations.

• 91.32 Assurance of compliance and recipient assessment of age distinctions.

(a) Where a recipient passes on Federal financial assistance from HHS to subrecipients, the recipient shall provide the subrecipients written notice of their obligations under the Act and these regulations.

(b) Each recipient shall make necessary information about the Act and these regulations available to its program beneficiaries in order to inform them about the protections against discrimination provided by the Act and these regulations.

• 91.33 Assurance of compliance and recipient assessment of age distinctions.

(a) Each recipient of Federal financial assistance from HHS shall sign a written assurance as specified by HHS that it will comply with the Act and these regulations.

(b) Recipient assessment of age distinctions. (1) As a part of a compliance review under 91.41 or complaint investigation under 91.44, HHS may require a recipient employing the equivalent of 15 or more employees to complete a written self-evaluation, in a manner specified by the responsible Department official, of any age distinction imposed in its program or activity receiving Federal financial assistance from HHS to assess the recipient's compliance with the Act.

(2) Whenever an assessment indicates a violation of the Act and the HHS regulations, the recipient shall take corrective action.

• 91.34 Information requirements.

Each recipient shall:

(a) Keep records in a form and containing information which HHS determines may be necessary to ascertain whether the recipient is complying with the Act and these regulations.

(b) Provide to HHS, upon request, information and reports which HHS determines are necessary to ascertain whether recipient is complying with the Act and these regulations.

(c) Permit reasonable access by HHS to the books, records, accounts, and other recipient facilities and sources of information to the extent HHS determines is necessary to ascertain whether the recipient is complying with the Act and these regulations.

Subpart D-Investigation, Conciliation, and Enforcement Procedures

• 91.41 Compliance reviews.

(a) HHS may conduct compliance reviews and pre-award reviews or use other similar procedures that will permit it to investigate and correct violations of the Act and these regulations. HHS may conduct these reviews even in the absence of a complaint against a recipient. The reviews may be as comprehensive as necessary to determine whether a violation of the Act and these regulations has occurred.

(b) If a compliance review or pre-award review indicates a violation of the Act or these regulations, HHS will attempt to achieve voluntary compliance with the Act. If voluntary compliance cannot be achieved, HHS will arrange for enforcement as described in 91.46.

• 91.42 Complaints.

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

(b) HHS will consider the date a complaint is filed to be the date upon which the complaint is sufficient to be processed.

(c) HHS will attempt to facilitate the filing of complaints wherever possible, including taking the following measures:

(1) 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.

(2) Freely permitting a complainant to add information to the complaint to meet the requirements of a sufficient complaint.

(3) 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.

(4) Notifying the complainant and the recipient (or their representatives) of their right to contact HHS for information and assistance regarding the complaint resolution process.

(d) HHS will return to the complainant any complaint outside the jurisdiction of these regulations, and will state the reason(s) why it is outside the jurisdiction of these regulations.

• 91.43 Mediation.

(a) HHS will promptly refer to a mediation agency designated by the Secretary all sufficient complaints that:

(1) Fall within the jurisdiction of the Act and these regulations, unless the age distinction complained of is clearly within an exception; 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.

(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 HHS. HHS 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 confidentially of all information obtained in the course of the mediation process. No mediator shall testify in any adjudicative 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) The mediation will proceed for a maximum of 60 days after a complaint is filed with HHS. Mediation ends if:

(1) 60 days elapse from the time the complaint is filed; 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. This 60-day period may be extended by the mediator, with the concurrence of HHS, for

not more than 30 days if the mediator determines that agreement will likely be reached during such extended period.

(f) The mediator shall return unresolved complaints to HHS.

• 91.44 Investigation.

(a) Informal investigation. (1) HHS will investigate complaints that are unresolved after mediation or are reopened because of a violation of a mediation agreement.

(2) As part of the initial investigation HHS will use informal fact finding methods, including joint or separate discussions with the complainant and recipient, to establish the fact and, if possible, settle the complaint on terms that are mutually agreeable to the parties. HHS may seek the assistance of any involved State program agency.

(3) HHS will put any agreement in writing and have it signed by the parties and an authorized official at HHS.

(4) The settlement shall not affect the operation of any other enforcement effort of HHS, including compliance reviews and investigation of other complaints which may involve the recipient.

(5) The settlement is not a finding of discrimination against a recipient.

(b) Formal investigation. If HHS 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 HHS will attempt to obtain voluntary compliance. If HHS cannot obtain voluntary compliance it will begin enforcement as described in �91.46

• 91.45 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 HHS' investigation, conciliation, and enforcement process.

• 91.46 Compliance procedure.

(a) HHS may enforce the Act and these regulations through:

(1) Termination of a recipient's Federal financial assistance from HHS under the program or activity involved where the recipient has violated the Act or these regulations. The determination of the recipients's violation may be made only after a recipient has had an opportunity for a hearing on the record before an administrative law judge.

(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) HHS will limit any termination under 91.46(a)(1) to the particular recipient and particular program or activity or part of such program and activity HHS finds in violation of these regulations. HHS 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 HHS.

(c) HHS will take no action under paragraph (a) 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).

(d) HHS also may defer granting new Federal financial assistance from HHS to a recipient when a hearing under 91.46(a)(1) is initiated.

(1) New Federal financial assistance from HHS includes all assistance for which HHS 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 HHS does not include increases in funding as a result of changed computation of formula awards or assistance approved prior to the beginning of a hearing under 91.46(a)(1).

(2) HHS will not begin a deferral until the recipient has received a notice of an opportunity for a hearing under � 91.46(a)(1). HHS will not continue a deferral for more than 30 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. HHS 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.

(3) HHS will limit any deferral to the particular program or activity or part of such program or activity HHS finds in violation of these regulations. HHS will not base any part of a deferral on a finding with respect to any program or activity of the recipient which does not, and would not in connection with the new funds, receive Federal financial assistance from HHS.

• 91.47 Hearings, decisions, post-termination proceedings.

Certain HHS procedural provisions applicable to Title VI of the Civil Rights Act of 1964 apply to HHS enforcement of these regulations. They are found at 45 CFR 80.9 through 80.11 and 45 CFR Part 81.

• 91.48 Remedial action by recipient.

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

• 91.49 Alternate funds disbursal procedure.

(a) When HHS withholds funds form 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.

• 91.50 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 HHS has made no finding with regard to the complainant; or

(2) HHS issues any finding in favor of the recipient.

(b) If HHS fails to make a finding within 180 days or issues a finding in favor of the recipient, HHS shall:

(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:

(i) That 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) That a complainant prevailing in a civil action has the right to be awarded the costs of the action, including reasonable attorney's fee, but that the complainant must demand these costs in the complainant.

(iii) That before commencing the action the complainant shall give 30 days notice by registered mail to the Secretary, Attorney General of the United States, and the recipient.

(iv) That 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) That the complainant may not bring an action if the same alleged violation of the Act by the same recipient is subjected of a pending action in any court of the United States.

Published at 44 FR 33768, June 12, 1979.