[Code of Federal Regulations]
[Title 28, Volume 1]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR35.130]

[Page 521-523]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
                    CHAPTER I--DEPARTMENT OF JUSTICE
 
PART 35_NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL 
GOVERNMENT SERVICES--Table of Contents
 
                     Subpart B_General Requirements
 
Sec.  35.130  General prohibitions against discrimination.


    (a) No qualified individual with a disability shall, on the basis of 
disability, be excluded from participation in or be denied the benefits 
of the services, programs, or activities of a public entity, or be 
subjected to discrimination by any public entity.
    (b)(1) A public entity, in providing any aid, benefit, or service, 
may not, directly or through contractual, licensing, or other 
arrangements, on the basis of disability--
    (i) Deny a qualified individual with a disability the opportunity to 
participate in or benefit from the aid, benefit, or service;

[[Page 522]]

    (ii) Afford a qualified individual with a disability an opportunity 
to participate in or benefit from the aid, benefit, or service that is 
not equal to that afforded others;
    (iii) Provide a qualified individual with a disability with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aids, benefits, or services to 
individuals with disabilities or to any class of individuals with 
disabilities than is provided to others unless such action is necessary 
to provide qualified individuals with disabilities with aids, benefits, 
or services that are as effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified individual 
with a disability by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of disability in 
providing any aid, benefit, or service to beneficiaries of the public 
entity's program;
    (vi) Deny a qualified individual with a disability the opportunity 
to participate as a member of planning or advisory boards;
    (vii) Otherwise limit a qualified individual with a disability in 
the enjoyment of any right, privilege, advantage, or opportunity enjoyed 
by others receiving the aid, benefit, or service.
    (2) A public entity may not deny a qualified individual with a 
disability the opportunity to participate in services, programs, or 
activities that are not separate or different, despite the existence of 
permissibly separate or different programs or activities.
    (3) A public entity may not, directly or through contractual or 
other arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified individuals with 
disabilities to discrimination on the basis of disability;
    (ii) That have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the public entity's 
program with respect to individuals with disabilities; or
    (iii) That perpetuate the discrimination of another public entity if 
both public entities are subject to common administrative control or are 
agencies of the same State.
    (4) A public entity may not, in determining the site or location of 
a facility, make selections--
    (i) That have the effect of excluding individuals with disabilities 
from, denying them the benefits of, or otherwise subjecting them to 
discrimination; or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the service, program, 
or activity with respect to individuals with disabilities.
    (5) A public entity, in the selection of procurement contractors, 
may not use criteria that subject qualified individuals with 
disabilities to discrimination on the basis of disability.
    (6) A public entity may not administer a licensing or certification 
program in a manner that subjects qualified individuals with 
disabilities to discrimination on the basis of disability, nor may a 
public entity establish requirements for the programs or activities of 
licensees or certified entities that subject qualified individuals with 
disabilities to discrimination on the basis of disability. The programs 
or activities of entities that are licensed or certified by a public 
entity are not, themselves, covered by this part.
    (7) A public entity shall make reasonable modifications in policies, 
practices, or procedures when the modifications are necessary to avoid 
discrimination on the basis of disability, unless the public entity can 
demonstrate that making the modifications would fundamentally alter the 
nature of the service, program, or activity.
    (8) A public entity shall not impose or apply eligibility criteria 
that screen out or tend to screen out an individual with a disability or 
any class of individuals with disabilities from fully and equally 
enjoying any service, program, or activity, unless such criteria can be 
shown to be necessary for the provision of the service, program, or 
activity being offered.
    (c) Nothing in this part prohibits a public entity from providing 
benefits,

[[Page 523]]

services, or advantages to individuals with disabilities, or to a 
particular class of individuals with disabilities beyond those required 
by this part.
    (d) A public entity shall administer services, programs, and 
activities in the most integrated setting appropriate to the needs of 
qualified individuals with disabilities.
    (e)(1) Nothing in this part shall be construed to require an 
individual with a disability to accept an accommodation, aid, service, 
opportunity, or benefit provided under the ADA or this part which such 
individual chooses not to accept.
    (2) Nothing in the Act or this part authorizes the representative or 
guardian of an individual with a disability to decline food, water, 
medical treatment, or medical services for that individual.
    (f) A public entity may not place a surcharge on a particular 
individual with a disability or any group of individuals with 
disabilities to cover the costs of measures, such as the provision of 
auxiliary aids or program accessibility, that are required to provide 
that individual or group with the nondiscriminatory treatment required 
by the Act or this part.
    (g) A public entity shall not exclude or otherwise deny equal 
services, programs, or activities to an individual or entity because of 
the known disability of an individual with whom the individual or entity 
is known to have a relationship or association.