Or. Admin. R. 407-005-0010

Current through Register Vol. 63, No. 8, August 1, 2024

Section 407-005-0010 - Prohibitions Against Discrimination

In accordance with Title 28, CFR 35.130.

(1) No 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 the Oregon Department of Human Services (ODHS), or be subjected to discrimination by ODHS.

(2) ODHS, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability:

(a) Deny an individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

(b) Afford an 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;

(c) Provide an 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;

(d) 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 individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;

(e) Aid or perpetuate discrimination against an 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 an ODHS program;

(f) Deny an individual with a disability the opportunity to participate as a member of planning or advisory boards;

(g) Otherwise limit an individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

(3) ODHS may not deny an 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.

(4) ODHS may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

(a) That have the effect of subjecting an individual with a disability to discrimination on the basis of disability;

(b) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of an ODHS program with respect to an individual with a disability; or

(c) That perpetuate the discrimination of another public entity if both ODHS and other public are subject to common administrative control or are public entities of Oregon.

(5) ODHS may not, in determining the site or location of a facility, make selections:

(a) That have the effect of excluding an individual with a disability from, denying them the benefits of, or otherwise subjecting them to discrimination; or

(b) 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 an individual with a disability.

(6) ODHS, in the selection of procurement contractors, may not use criteria that subject an individual with a disability to discrimination on the basis of disability.

(7) ODHS may not administer a licensing or certification program in a manner that subjects an individual with a disability to discrimination on the basis of disability, nor may ODHS establish requirements for the programs or activities of licensees or certified entities that subject an individual with a disability to discrimination on the basis of disability.

(8) ODHS shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless ODHS may demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

(9) ODHS is not required to provide a reasonable modification to an individual who meets the definition of "disability" solely under the "regarded as" section of the definition of "disability" at § 35.108(f).

(10) ODHS 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.

(11) Nothing in this rule prohibits ODHS from providing benefits, services, or advantages to an individual with a disability, or to a particular class of individuals with disabilities beyond those required by this rule.

(12) ODHS shall administer services, programs, and activities in the most integrated setting appropriate to the needs of an individual with a disability.

(13) Nothing in this rule 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 rule which such individual chooses not to accept. Nothing in the ADA or this rule authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.

(14) ODHS 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 services or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the ADA or this rule.

(15) ODHS 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.

(16) ODHS may impose legitimate safety requirements necessary for the safe operation of ODHS services, programs, or activities. However, ODHS must ensure that ODHS safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

(17) Nothing in this rule shall provide the basis for a claim that an individual without a disability was subject to discrimination because of a lack of disability, including a claim that an individual with a disability was granted a reasonable modification that was denied to an individual without a disability.

Or. Admin. R. 407-005-0010

DHSD 1-2006, f. & cert. ef. 3-1-06; DHS 21-2021, temporary amend filed 10/07/2021, effective 10/07/2021 through 04/04/2022; DHS 7-2022, amend filed 04/04/2022, effective 4/4/2022

Statutory/Other Authority: ORS 409.050 & 25 CFR § 35

Statutes/Other Implemented: ORS 409.050