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 §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 if the factor bears a direct and substantial relationship to the normal operation of the program or activity or to the achievement of a statutory objective. § 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 the absence of a finding of discrimination, a recipient may take affirmative action to overcome the effects of conditions that resulted in limited participation in the recipient's program or activity on the basis of age. § 91.17 Special benefits for children and the elderly. If a recipient operating 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. 891.18 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 § 91.31 General responsibilities. Each HHS recipient has prima sponsibility to ensure that it grams and activities are in comp with the Act and these regulation shall take steps to eliminate viol of the Act. A recipient also has r sibility to maintain records, I information, and to afford HHS to its records to the extent HH necessary to determine whether cipient is in compliance with t and these regulations. § 91.32 Notice to subrecipient beneficiaries. (a) Where a recipient passes o eral financial assistance from H subrecipients, the recipient shal vide the subrecipients written no their obligations under the Ac these regulations. (b) Each recipient shall make essary information about the Ac these regulations available to its gram beneficiaries in order to in them about the protections agains crimination provided by the Actthese regulations. $91.33 Assurance of compliance recipient assessment of age dis tions. (a) Each recipient of Federal fi cial assistance from HHS shall si written assurance as specified by that it will comply with the Act these regulations. (b) Recipient assessment of age dist tions. (1) As part of a compliance rev under §91.41 or complaint investigat under §91.44, HHS may require a rec ent employing the equivalent of 15 more employees to complete a writt self-evaluation, in a manner specifi by the responsible Department offic of any age distinction imposed in program or activity receiving Feder financial assistance from HHS to asse the recipient's compliance with t Act. (2) Whenever an assessment indicate a violation of the Act and the HHS reg ulations, the recipient shall take cor rective action. 34 Information requirements. ach recipient shall: ) Keep records in a form and coning information which HHS deterles may be necessary to ascertain >ther the recipient is complying h the Act and these regulations. >) Provide to HHS, upon request, innation and reports which HHS denines are necessary to ascertain ether the recipient is complying h the Act and these regulations. 3) Permit reasonable access by HHS the books, records, accounts, and er recipient facilities and sources of ormation to the extent HHS deternes is necessary to ascertain wheththe recipient is complying with the t and these regulations. bpart D-Investigation, Concillation, and Enforcement Procedures 1.41 Compliance reviews. (a) HHS may conduct compliance reews and pre-award reviews or use her similar procedures that will perit it to investigate and correct violaons of the Act and these regulations. HS may conduct these reviews even 1 the absence of a complaint against a ecipient. The reviews may be as comprehensive as necessary to determine whether a violation of the Act and hese regulations has occurred. (b) If a compliance review or preAward review indicates a violation of he Act or these regulations, HHS will ttempt to achieve voluntary complince with the Act. If voluntary compliince 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. How=ever, 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 sufficent to be processed. (c) HHS will attempt to facilitate the filing of complaints wherever possible, including taking the following meas ures: (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. 891.43 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 confidentiality 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 HH not resolve the complaint throu formal investigation, it will be develop formal findings throug ther investigation of the compla the investigation indicates a vic of these regulations HHS will at to obtain voluntary compliance. cannot obtain voluntary compli will begin enforcement as descri § 91.46. 891.45 Prohibition against int tion or retaliation. A recipient may not engage in intimidation or retaliation again person who: (a) Attempts to assert a righ tected by the Act or these regula or (b) Cooperates in any mediatic vestigation, hearing, or other p HHS' investigation, conciliation enforcement process. $91.46 Compliance procedure. (a) HHS may enforce the Act these regulations through: (1) Termination of a recipient's eral financial assistance from under the program or activity invo where the recipient has violated Act or these regulations. The d mination of the recipient's viola may be made only after a recipient had an opportunity for a hearing on record before an administrative judge. (2) Any other means authorized law including but not limited to: (i) Referral to the Department of J tice for proceedings to enforce rights of the United States or obli tions of the recipient created by t Act or these regulations. (ii) Use of any requirement of or! ferral to any Federal, State, or loc government agency that will have t effect of correcting a violation of t Act or these regulations. (b) HHS will limit any terminatio under §91.46(a)(1) to the particular re cipient and particular program or ac tivity or part of such program and ac tivity 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 e recipient which does not receive deral financial assistance from HHS. c) HHS will take no action under ragraph (a) until: 1) The Secretary has advised the repient of its failure to comply with › Act and these regulations and has termined that voluntary compliance nnot be obtained. 2) Thirty days have elapsed after the cretary has sent a written report of e circumstances and grounds of the tion to the committees of the Coness having legislative jurisdiction Fer the Federal program or activity volved. The Secretary will file a rert whenever any action is taken der paragraph (a). (d) HHS also may defer granting new ederal financial assistance from HHS a recipient when a hearing under 1.46(a)(1) is initiated. (1) New Federal financial assistance 'om HHS includes all assistance for hich HHS requires an application or pproval, including renewal or continution of existing activities, or authorzation of new activities, during the deerral period. New Federal financial asistance from HHS does not include inreases 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 60 days unless a hearing has begun within that time or the time for beginning the hearing has been extended by mutual consent of the recipient and the Secretary. 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 recipient and 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 exercises control over the recipient that has discriminated, HHS may require both recipients to take remedial action. $91.49 Alternate funds disbursal pro cedure. (a) When HHS withholds funds from a recipient under these regulations, the Secretary may disburse the withheld funds directly to an alternate recipient: any public or non-profit private organization or agency, or State or political subdivision of the State. (b) The Secretary will require any alternate recipient to demonstrate: (1) The ability to comply with these regulations; and (2) The ability to achieve the goals of the Federal statute authorizing the program or activity. § 91.50 Exhaustion of administrative remedies. (a) A complainant may file a civil action following the exhaustion of administrative rernedies 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 complaint; 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 busi ness; (ii) That a complainant prevailing in a civil action has the right to be awarded the costs of the action, including reasonable attorney's fees, but that the complainant must demand these costs in the complaint; (iii) That before commencing the action the complainant shall give 30 days notice by registered mail to the Secretary, the Attorney General of the United States, and the recipient; (iv) 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 the subject of a pending action in any court of the United States. Subpart E-Entitlement (Reserved) AUTHORITY: 5 U.S.C. 301. SOURCE: 53 FR 8079, 8087, Mar. 11, 1988, less otherwise noted. EDITORIAL NOTE: For additional inform tion, see related documents published at FR 24958, June 18, 1984, 52 FR 20198, May 1987, and 53 FR 8028, March 11, 1988. Subpart A-General § 92.1 Purpose and scope of this part. This part establishes uniform admin istrative rules for Federal grants an cooperative agreements and subaward to State, local and Indian tribal gov ernments. § 92.2 Scope of subpart. This subpart contains general rules pertaining to this part and procedures for control of exceptions from this part. |