SUBPART D - PRESCHOOL, ELEMENTARY, AND SECONDARY EDUCATION
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 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
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.
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.
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
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
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
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
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
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