Home‎ > ‎Administrative_Guidelines‎ > ‎2000_Program‎ > ‎

2260a AdmGuide_Federal Regulations for Section 504

104.31        Application of this subpart
                  Subpart D applies to preschool, elementary, secondary, and adult education programs and
                  activities that receive or benefit from Federal financial assistance and to recipients that operate, or
                  that receive or benefit from Federal financial assistance for the operation of such programs or
104.32        Location and Notification
                  A recipient that operates a public elementary or secondary education program shall annually:
                      a) Undertake to identify and locate every qualified handicapped person residing in the recipient's
                          jurisdiction who is not receiving a public education; and
                      b) Take appropriate steps to notify handicapped persons and their parents or guardians of the
                          recipient's duty to this subpart.
104.33         Free Appropriate Public Education
                      a. General
                          A recipient that operates a public elementary or secondary education program shall provide a
                          free appropriate public education to each qualified handicapped person who is in the recipient's
                          jurisdiction, regardless of the nature or severity of the person's handicap.
                      b. Appropriate Education
                              1. For the purpose of this subpart the provision of an appropriate education is the provision of
                                  regular or special education and related aids and services that (i) are designed to meet
                                  individual educational needs of handicapped persons as adequately as the needs of
                                  nonhandicapped persons are met and (ii) are based upon adherence to procedures that
                                  satisfy the requirements of 104.34, 104.35, and 104.36.
                              2. Implementation of an individualized education program developed in accordance with the
                                  Education of the Handicapped Act is one means of meeting the standard established in
                                  paragraph (b)(1)(i) of this section.
                              3. A recipient may place a handicapped person in or refer such person to a program other
                                  than the one that it operates as its means of carrying out the requirements of this subpart.
                                  If so, the recipient remains responsible for ensuring that the requirements of this subpart
                                  are met with respect to any handicapped person so placed or referred.
                    c. Free Education
                              1. General
                                  For the purpose of this section, the provision of free education is the provision of
                                  educational and related services without cost to the handicapped person or to his/her
                                  parents or guardian, except for those fees that are imposed on the provision of free services
                                  or, if a recipient places a handicapped person in or refers such person to a program not
                                  operated by the recipient as its means of carrying out the requirements of this subpart, of
                                  payment for the costs of the program. Funds available from any public or private agency
                                  may be construed to relieve an insurer or similar third party from an otherwise valid
                                  obligation to provide or pay for services provided to a handicapped person.
                              2. Transportation
                                  If a recipient places a handicapped person in or refers such person to a program not
                                  operated by the recipient as its means of carrying out the requirements of this subpart, the
                                  recipient shall ensure that adequate transportation to and from the program is provided at
                                  no greater cost than would be incurred by the person or his/her parents or guardian if the
                                  person were placed in the program operated by the recipient.
                              3. Placement of Handicapped Persons by Parents
                                  If a recipient has made available, in conformance with the requirements of this person and
                                  the person's parents or guardian choose to place the person in a private school, the
                                  recipient is not required to pay for the person's education in private school. Disagreements
                                  between a parent or guardian and a recipient regarding whether the recipient has made
                                  such a program available or otherwise regarding the question of financial responsibility are
                                  subject to the due process procedures of 104.36.
                      d. Compliance
                          A recipient may not exclude any qualified handicapped person from a public elementary or
                          secondary education after the effective date of this part. A recipient that is not, on the effective
                          date of this regulation, in full compliance with the other requirements of the preceding paragraphs
                          of this section shall meet such requirements at the earliest practicable time and in no event later
                          than September 1, 1978.
104.34         Educational Setting
                      a.  Academic Setting
                          A recipient to which this subpart applies shall educate or shall provide for the education of,
                          each qualified handicapped person in its jurisdiction with persons who are not handicapped
                          to the maximum extent appropriate to the needs of the handicapped person. A recipient shall
                          place a handicapped person in the regular educational environment operated by the recipient
                          unless it is demonstrated by the recipient that the education of the person in the regular
                          environment with the use of supplementary aids and services cannot be achieved satisfactorily.
                          Whenever a recipient places a person in a setting other than the regular educational environment
                          pursuant to this paragraph, it shall take into account the proximity of the alternate setting to the
                          person's home.
                      b. Nonacademic Settings
                          In providing or arranging for the provision of nonacademic and extracurricular services and
                          activities, including meals, recess periods, and the services and activities set forth in 104.37(a)
                          (2) a recipient shall ensure that handicapped persons participate with nonhandicapped persons
                          in such activities and services to the maximum extent appropriate to the needs of the
                          handicapped person in question.
                      c. Comparable Facilities
                          If the recipient, in compliance with paragraph (a) of this section, operates a facility that is
                          identifiable as being for handicapped persons, the recipient shall ensure that the facility and the
                          services and activities provided therein are comparable to the other facilities, services, and
                          activities of the recipient.
104.35         Evaluation and Placement
                      a. Preplacement Evaluation
                          A recipient that operates a public elementary or secondary education program shall conduct an
                          evaluation in accordance with the requirements of paragraph (b) of this section, of any person
                          who, because of handicap, needs or is believed to need special education or related services
                          before taking any action with respect to the initial placement of the person in a regular or special
                          education program and any subsequent significant change in placement.
                      b. Evaluation Procedures
                          A recipient to which this subpart applies shall establish standards and procedures for the
                          evaluation and placement of persons who, because of handicap, need or are believed to need
                          special education or related services which ensure that:
                                1. Tests and other evaluation materials have been validated for the specific purpose for which
                                    they are used and are administered by trained personnel in conformance by their
                                2. Tests and other evaluation materials included are tailored to assess specific areas of
                                    educational need and not merely those which are designed to provide a single general
                                    intelligence quotient;
                                3. Tests are selected and administered so as best to ensure that, when a test is
                                    administered to a student with impaired sensory, manual, or speaking skills, the test
                                    results accurately reflect the student's aptitude or achievement level or whatever other
                                    factor the test purports to measure, rather than reflecting the student's impaired sensory,
                                    manual, or speaking skills (except where those skills are the factors that the test purports
                                    to measure).
                      c. Placement Procedures
                          In interpreting evaluation data and in making placement decisions, a recipient shall (1) draw upon
                          information from a variety of sources, including aptitude and achievement tests, teacher
                          recommendations, physical condition, social or cultural background, and adaptive behavior, (2)
                          establish procedures to ensure that information obtained from all such sources is documented
                          and carefully considered, (3) ensure that the placement decision is made by a group of persons,
                          including persons knowledgeable about the child, the meaning of evaluation data, and the
                          placement options, and (4) ensure that the placement decision is made in conformity with
                      d. Reevaluation
                          A recipient to which this section applies shall establish procedures, in accordance with
                          paragraph (b) of this section, for periodic reevaluation of students who have been provided special
                          education and related services. A reevaluation procedure consistent with the Education for the
                          Handicapped Act is one means of meeting this requirement.
104.35         Procedural Safeguards
                   A recipient that operates a public elementary or secondary education program shall establish and
                   implement, with respect to actions regarding the identification, evaluation, or educational placement
                   of persons who, because of handicap, need or are believed to need special instruction or related
                   services, a system of procedural safeguards that includes notice, an opportunity for the parents or
                   guardian of the person to examine relevant records, an impartial hearing with opportunity for
                   participation by the person's parents or guardian and representation by counsel, and a review
                   procedure. Compliance with the procedural safeguards of section 615 of the Education of the
                   Handicapped Act is one means of meeting this requirement.
104.37         Nonacademic Services
                      (a.) General
                              1. A recipient to which this subpart applies shall provide nonacademic and extracurricular
                                  services and activities in such manner as is necessary to afford handicapped students an
                                  equal opportunity for participation in such services and activities.
                              2. Nonacademic and extracurricular services and activities may include counseling services,
                                  physical recreational athletics, transportation, health services, recreational activities,
                                  special interest groups or clubs sponsored by the recipients, referrals to agencies which
                                  provide assistance to handicapped persons, and employment of students, including both
                                  employment by the recipient and assistance in making available outside employment.
                      (b.) Counseling Services
                           .A recipient to which this subpart applies that provides personal, academic, or vocational
                            counseling, guidance, or placement services to its students shall provide these services without
                            discrimination on the basis of handicap. The recipient shall ensure that qualified handicapped
                            students are not counseled toward more restrictive career objectives than are nonhandicapped
                            students with similar interests and abilities.
                      (c.) Physical Education and Athletics
                              1. In providing physical education courses and athletics and similar programs and activities
                                  to any of its students, a recipient to which this subpart applies may not discriminate on the
                                  basis of the handicap.  A recipient that offers physical education courses or that operates
                                  or sponsors interscholastic, club, or intramural athletics shall provide to qualified
                                  handicapped students an equal opportunity for participation in these activities.
                              2. A recipient may offer to handicapped students physical education and athletic activities
                                  that are separate or different from those offered to nonhandicapped students only if
                                  separation or differentiation is consistent with the requirements of 104.34 and only if no
                                  qualified handicapped student is denied the opportunity to compete for teams or to
                                  participate in courses that are not separate or different.
104.38         Preschool and Adult Education Programs
                   A recipient to which this subpart applies that operates a preschool education or day care program or
                   activity or an adult education program or activity may not, on the basis of handicap, exclude qualified
                   handicapped persons from the program or activity and shall take into account the needs of such
                   persons in determining the aid, benefits, or services to be provided under the program or activity.
104.39         Private Education Programs
                      a. A recipient that operates a private elementary or secondary education program may not, on the
                          basis of handicap, exclude a qualified handicapped person from such program if the person can,
                          with minor adjustments, be provided an appropriate education, as defined in 104.33(b)(1) within
                          the recipient's program.
                      b. A recipient to which this section applies may not charge more for the provision of an appropriate
                          education to handicapped persons than to nonhandicapped persons except to the extent that
                          any additional charge is justified by a substantial increase in the cost to the recipient.
                      c. A recipient to which this section applies that operates special education programs shall operate
                          such programs in accordance with the provisions of 104.35 and 104.36. Each recipient to which
                          this section applies is subject to the provisions of 104.34, 104.37, and 104.38.
Approved/Adopted:  July 13, 2009
Sharon Weinstock,
Jul 28, 2011, 1:20 PM