AVITIA, ROSARIO MACIEL (vs. COSA AND IMMIGRATION AND CUSTOM ENFORCEMENT AGENCY "ICE")

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would result in an undue financial and administrative burden or fundamental alteration, the facility mast take any other action that would not result in such an undue burden or fundamental alteration but would nevertheless ensure that, to the maximum extent possible, detainees with a disability receive the benefits and services of the program or activity. Similarly, determinations that detainees pose a "direct threat" are generally very rare, and require a careful, individualized assessment as described below. 3.4. Detainee with a Disability. A detainee with a physical or mental impairment that substantially limits one or more major life activities (an "actual disability") or who has a record of a physical or mental impairment that substantially limits a major life activity ("record of'). 3.5. Direct Threat. ICE ERO and its detention facilities may deny an accommodation to a detainee with a disability who poses a direct threat to staff or other detainees only if providing the accommodation would unavoidably exacerbate the threat. The determination that a detainee with a disability poses a direct threat to staff or other detainees must be reached through an individualized assessment. The assessment should rely on reasonable judgment and current medical evidence, or the best available objective evidence, to determine the nature, duration, and severity of the risk, and whether any modifications of policies, practices, or procedures can mitigate or eliminate the risk. Detainees with disabilities who are found to pose a direct threat are nevertheless entitled to auxiliary aids and services or other appropriate steps to allow for effective communication. 3.6. Fundamental Alterations: A "fundamental alteration" to a facility's programs, services, or activities is a change that is so significant that it alters the essential nature of the program, service, or activity offered. Whether a change constitutes a fundamental alteration is a determination that must be made on a case-by-case basis, and that must consider the unique characteristics of each facility and each detainee with a disability. 3.7. Interactive Process. The process by which a detention facility engages with a detainee with a disability who is regtiesting an accommodation to address the disability -related request, the process for determining whether an accommodation can be provided and through which the detention facility determines whether the request is granted, and identification of alternative accommodations. 3.8. Major Life Activities. Basic activities that a detainee without a disability in the general population can perform with little or no difficulty, including, but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. A major life activity can also include the operation of a major bodily function. 3.9. Physical or Mental Impairments. Physical or mental impairments include: (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting Assessment and Accommodations for Detainees with Disabilities