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Handicapped-Rights Groups Wary of New U.S. Rule

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Washington--Handicapped-rights advocates are claiming that the Reagan Administration is reneging on its promise not to tamper with existing regulations prohibiting discrimination against handicapped students and adults.

The advocates say the breach of faith occurred last month when the Justice Department sent 91 federal departments and agencies a prototype regulation governing how handicapped federal employees should be treated under Section 504 of the Rehabilitation Act of 1973, which bars discrimination in federally assisted programs.

According to the groups, the new regulation would allow government agencies to discriminate against handicapped individuals if, for example, the jobs they apply for would have to be fundamentally changed in order to accommodate them. The Justice Department contends that a 1979 U.S. Supreme Court decision supports the change. Handicapped-rights advocates counter that the change could open the way for relaxing regulations governing other institutions, such as schools and colleges.

In 1978, the Congress passed an amendment to Section 504 that required the Education Department and other federal agencies to abide by the law themselves. But until last month, no federal agency had issued regulations for the enforcement of the law within its own of-fices. The agencies are to use the Justice Department prototype as a blueprint for their own regulations.

This March, Vice President George Bush sent letters to leaders of the handicapped-rights movement informing them that the Administration had abandoned its controversial plan to to rewrite the existing Section 504 regulations. (See Education Week, March 30, 1983.)

'Useful Guidance'

In his March 21 letter, the Vice President said that "extensive change of the existing [regulation] was not required, and that with respect to those few areas where clarification might be desirable, the courts are currently providing useful guidance and can be expected to do so in the future."

At that time, spokesmen for the handicapped-rights groups noted that the Administration might have left itself a "loophole" when it said that future clarifications of the regulation would be based on decisions by federal courts.

The prototype regulation issued by the Justice Department last month contains such a loophole, they contend.

The proposed rule is different from the existing regulation in that it would allow programs operated by the government to discriminate against handicapped individuals if those persons "[cannot] achieve the purpose of the program without modification of the program that would result in a fundamental alteration in its nature."

The Justice Department said that the change was made necessary by the Supreme Court's 1979 decision in Southeastern Community College v. Davis. In that case, the Court ruled that a nursing school did not have to admit a deaf applicant because her hearing impairment would have prevented her from participating in the clinical portion of a training program.

"We have incorporated the Court's language in the definition of a 'qualified handicapped person' in order to make clear that such a person must be able to participate in the program offered by the agency," the Justice Department said in the prototype regulation. "The agency is required to make modifications in order to enable a handicapped applicant to participate, but is not required to offer a program of a fundamentally different nature."

"The test is whether, with appropriate modifications, the applicant can achieve the purpose of the program offered; not whether the applicant could benefit or obtain results from some other program that the agency does not offer," it continued. According to Jane Razeghi, a spokesman for the American Coalition of Citizens with Disabilities, "This proposed change would mean that the people in the private sector can come up to the government and say, 'Hey, if you don't have to accommodate these people, then why do we?"'

"These regulations are quite watered down when compared to the existing Section 504 regulations," she added. "We would like to see them brought up to the same standard."

Pat Wright, a spokesman for the Disability Rights Education and Defense Fund, agreed. "We find it interesting that the government plans to give itself a hardship clause while it denies such a clause to the recipients of aid," she said.

Ms. Wright and Ms. Razeghi said a number of handicapped-rights advocates held a meeting here last week to discuss the proposed regulation.

They said the groups will meet again this week and will probably issue a joint statement on the proposal.

In a related development, a federal judge last week temporarily barred the Education Department from firing a handicapped employee who was the only person in the department to be terminated during a reduction-in-force in March.

U.S. District Judge Thomas F. Hogan issued a temporary injunction preventing the department from firing Frederick A. Recker, who is mentally retarded and suffers from muscular dystrophy, a club foot, and cataracts.

Mr. Recker, a copying-machine operator who had received satisfactory job-performance ratings consistently during his 14 years in government service, was to have been laid off from his job in the department's office of bilingual education and minority-language affairs on April 25.

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