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504 - The Law
Section 504
was passed by Congress as the final section of the Rehabilitation Act of 1973
which was Public Law 93-112. It is placed in the United States Code (USC) at
Title 29 U.S.C. Section 794. If you read judicial decisions on special education
the judge might refer to it as "Section 504" or as "Section 794."
When the federal Office of Education wrote the 504 regulations dealing with
education, they were printed in the Code of Federal Regulations (CFR) at Title
34 CFR Part 104.
What is reprinted below are only the Section 504 regulations dealing with
pre-school, elementary and secondary education.
Your school district must have been in complete compliance with these
regulations no later than September 1, 1978.
PART 104. NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS AND ACTIVITIES RECEIVING OR BENEFITING FROM FEDERAL FINANCIAL ASSISTANCE
Subpart A--General Provisions
104.1 Purpose.
The purpose of
this part is to effectuate section 504 of the Rehabilitation Act of 1973, which
is designed to eliminate discrimination on the basis of handicap in any program
or activity receiving Federal financial assistance.
104.2 Application.
This part applies to
each recipient of Federal financial assistance from the Department of Education
and to each program or activity that receives or benefits from such assistance.
104.3 Definitions.
As used in this part,
the term:
(a) "The Act" means
the Rehabilitation Act of 1973. Pub. L. 93-112, amended by the Rehabilitation
Act Amendments of 1974, Pub. L 93-516, 29 U.S.C. 794.
(b) 'Section 504" means section 504 of the Act.
(c) "Education of the Handicapped Act" means that statute as amended by the
Education for All Handicapped Children Act of 1975, Pub. L. 94-142. 20 U.S.C.
1401 et seq. (note: now called the IDEA)
(d) "Department" means the Department of Education.
(e) "Assistant Secretary" means the Assistant Secretary for Civil Rights of the
Department of Education.
(f) "Recipient" means
any state or its political subdivision, any instrumentality of a state or its
political subdivision, any public or private agency, institution, organization,
or other entity, or any person to which federal financial assistance is extended
directly or through another recipient, including any successor, assignee, or
transferee of a recipient, but excluding the ultimate beneficiary of the
assistance.
(i) "Facility" means all or any portion of buildings, structures, equipment,
roads, walks, parking lots, or other real or personal property or interest in
such property.
(j ) "Handicapped person"
(1) "Handicapped
persons" means any person who (i) has a physical or mental impairment which
substantially limits one or more major life activities, (ii) has a record of
such an impairment, or (iii) is regarded as having such an impairment.
(2) As used in paragraph (j)(l) of this section, the phrase: (i) "Physical or
mental impairment" means (A) any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the following body
systems: neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive, digestive, genito-urinary;
hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological
disorder, such as mental retardation, organic brain syndrome, emotional or
mental illness, and specific learning disabilities.
(ii) "Major life
activities" means functions such as caring for one's self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning and working.
{iii) "Has a record of such an impairment" means has a history of, or has been
misclassified as having, a mental or physical impairment that substantially
limits one or more major life activities.
(iv) "Is regarded as having an impairment" means (A) has a physical or mental
impairment that does not substantially limit major life activities but that is
treated by a recipient as constituting such a limitation; (B) has a physical or
mental impairment that substantially limits major life activities only as a
result of the attitudes of others toward such impairment; or (C) has none of the
impairments defined in paragraph (j)(2)(i) of this section but is treated by a
recipient as having such an impairment.
(k) "Qualified handicapped person" means:
(2) With respect to public preschool elementary, secondary, or adult educational
services, a handicapped person (i) of an age during which nonhandicapped persons
are provided such services (ii) of an age during which it is mandatory under
state law to provide such services to handicapped persons, or (iii) to whom a
state is required to provide a free appropriate public education under section
612 of the Education of the Handicapped Act; and
(3) With respect to postsecondary and vocational education services, a
handicapped person who meets the academic and technical standards requisite to
admission or participation in the recipient's education program or activity;
(4) With respect to other services, a handicapped person who meets the essential
eligibility requirements for the receipt of such services.
(l) "Handicap" means any condition or characteristic that renders a person a
handicapped person as defined in paragraph (j) of this section.
104.4 Discrimination prohibited.
(a) General. No qualified handicapped person shall, on the basis of handicap, be
excluded from participation in, be denied the benefits of, or otherwise be
subjected to discrimination under any program or activity which receives or
benefits from Federal financial assistance.
(b) Discriminatory actions prohibited.
(1) A recipient, in providing any aid, benefit, or service, may not, directly or
through contractual, licensing, or other arrangements, on the basis of handicap;
(i) Deny a qualified handicapped person the opportunity to participate in or
benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to participate in or
benefit from the aid, benefit, or service that is not equal to that afforded
others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service
that is not as effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped
persons or to any class of handicapped persons unless such action is necessary
to provide qualified handicapped persons with aid, benefits or services that are
as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped person by
providing significant assistance to an agency, organization or person that
discriminates on the basis of
handicap in providing any aid, benefit, or service to beneficiaries of the
recipients program;
(vi) Deny a qualified handicapped person the opportunity to participate as a
member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped person in the enjoyment of any
right, privilege, advantage, or opportunity enjoyed by others receiving an aid,
benefit or service.
(2) For purposes of this part, aids, benefits and services, to be equally
effective, are not required to produce the identical result or level of
achievement for handicapped and nonhandicapped persons, but must afford
handicapped persons equal opportunity to obtain the same result, to gain the
same benefit, or to reach the same level of achievement, in the most integrated
setting appropriate to the person's needs.
(3) Despite the existence of separate or different programs or activities
provided in accordance with this part, a recipient may not deny a qualified
handicapped person the opportunity to participate in such programs or activities
that are not separate or different.
(4) A recipient may not, directly or through contractual or other arrangements,
utilize criteria or methods of administration (i) that have the effect of
subjecting qualified handicapped persons to discrimination on the basis of
handicap, (ii) that have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program with
respect to handicapped persons, or (iii) that perpetuate the discrimination of
another recipient if both recipients are subject to common administrative
control or are agencies of the same state.
(5) In determining the site or location of a facility, an applicant for
assistance or a recipient may not make selections (i) that have the effect of
excluding handicapped persons from, denying them the benefits of, or otherwise
subjecting them to discrimination under any program or activity that receives or
benefits from Federal financial assistance or (ii) that have the purpose or
effect of defeating or substantially impairing the accomplishment of the
objectives of the program or activity with respect to handicapped persons.
(6) As used in this section, the aid, benefit, or service provided under a
program or activity receiving or benefiting from Federal financial assistance
includes any aid, benefit, or service provided in or through a facility that has
been constructed, expanded, altered, leased or rented, or otherwise acquired, in
whole or in part, with Federal financial assistance.
(c) Programs limited by Federal law. The exclusion of nonhandicapped persons
from the benefits of a program limited by Federal statute or executive order to
handicapped persons or the exclusion of a specific class of handicapped persons
from a program limited by Federal statute or executive order to a different
class of handicapped persons is not prohibited by this part.
104.5 Assurances required.
(a) Assurances. An applicant for federal financial assistance for a program or
activity to which this part applies shall submit an assurance, on a form
specified by the Assistant Secretary, that the program will be operated in
compliance with this part. An applicant may incorporate these assurances by
reference in subsequent applications to the Department.
104.6 Remedial action, voluntary
action, and self-evaluation.
(a) Remedial action.
(1) If the Assistant Secretary finds that a recipient has discriminated against
persons on the basis of handicap in violation of Section 504 or this part, the
recipient shall take such remedial action as the Assistant Secretary deems
necessary to overcome the effects of the discrimination.
(2) Where a recipient is found to have discriminated against persons on the
basis of handicap in violation of section 504 or this part and where another
recipient exercises control over the recipient that has discriminated, the
Assistant Secretary, where appropriate, may require either or both recipients to
take remedial action.
(3) The Assistant Secretary may, where necessary to overcome the effects of
discrimination in violation of Section 504 or this part, require a recipient to
take remedial action (i) with respect to handicapped persons who are no longer
participants in the recipient's program but who were participants in the program
when such discrimination occurred or (ii) with respect to handicapped persons
who would have been participants in the program had the discrimination not
occurred.
(b) Voluntary action. A recipient may take steps, in addition to any action that
is required by this part, to overcome the effects of conditions that resulted in
limited participation in the recipient's program or activity by qualified
handicapped persons.
(c) Self-evaluation.
(1) A recipient shall, within one year of the effective date of this part:
(i) Evaluate, with the assistance of interested persons, including handicapped
persons or organizations representing handicapped persons, its current policies
and practices and the effects thereof that do not or may not meet the
requirements of this part;
(ii) Modify, after consultation with interested persons, including handicapped
persons or organizations representing handicapped persons, any policies and
practices that do not meet the requirements of this part; and
(iii) Take, after consultation with interested persons, including handicapped
persons or organizations representing handicapped persons, appropriate remedial
steps to eliminate the effects of any discrimination that resulted from
adherence to these policies and practices.
(2) A recipient that employs fifteen or more persons shall, for at least three
years following completion of the evaluation required under paragraph (c)(i) of
this section, maintain on file, make available for public inspection, and
provide to the Assistant Secretary upon request: (i) a list of the interested
persons consulted, (ii) a description of areas examined and any problems
identified, and (iii) a description of any modifications made and of any
remedial steps taken.
104.7 Designation of responsible
employee and adoption of grievance procedures.
(a) Designation of responsible employee. A recipient that employs fifteen or
more persons shall designate at least one person to coordinate its efforts to
comply with this part.
(b) Adoption of grievance procedures. A recipient that employs fifteen or more
persons shall adopt grievance procedures that incorporate appropriate due
process standards and that provide for the prompt and equitable resolution of
complaints alleging any action prohibited by this part. Such procedures need not
be established with respect to complaints from applicants for employment or from
applicants for admission to postsecondary educational institutions.
104.8 Notice.
(a) A recipient that employs fifteen or more persons shall take appropriate
initial and continuing steps to notify participants, beneficiaries, applicants
and employees, including those with impaired vision or hearing, and unions or
professional organizations holding collective bargaining or professional
agreements with the recipient that it does not discriminate on the basis of
handicap in violation of Section 504 and this part. The notification shall
state, where appropriate, that the recipient does not discriminate in admission
or access to, or treatment or employment in, its programs and activities. The
notification shall also include an identification of the responsible employee
designated pursuant to 104.7(a). A recipient shall make the initial notification
required by this paragraph within 90 days of the effective date of this part.
Methods of initial and continuing notification may include the posting of
notices, publication in newspapers and magazines, placement of notices in
recipients' publication, and distribution of memoranda or other written
communications.
(b) If a recipient publishes or uses recruitment materials or publications
containing general information that it makes available to participants,
beneficiaries, applicants, or employees, it shall include in those materials or
publications a statement of the policy described in paragraph (a) of this
section. A recipient may meet the requirement of this paragraph either by
including appropriate inserts in existing materials and publications or by
revising and reprinting the materials and publications.
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 activities.
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 under 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 sections
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 a free education
is the provision of educational and related services without cost to the
handicapped person or to his or her parents or guardian, except for those fees
that are imposed on non-handicapped persons or their parents or guardian. It may
consist either of 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 used to meet the requirements of this subpart. Nothing in this
section shall 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 or her parents or guardian if the person were
placed in the program operated by the recipient.
(3) Residential placement. If placement in a public or private residential
program is necessary to provide a free appropriate public education to a
handicapped person because of his or her handicap, the program, including
non-medical care and room and board, shall be provided at no cost to the person
or his or her parents or guardian.
(4) Placement of handicapped persons by parents. If a recipient has made
available, in conformance with the requirements of this section and 104.34, a
free appropriate public education to a handicapped 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 the 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 a 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) Pre-placement 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 with the instructions provided by their producer;
(2) Tests and other evaluation materials include those tailored to assess
specific areas of educational need and not merely those which are designed to
provide a single general intelligence quotient; and
(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 the evaluation data, and
the placement options, and
(4) ensure that the placement decision is made in conformity with 104.34.
(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.
104.36 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 non-academic 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) Non-academic 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 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 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 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.
Subpart G - Procedures
104.61 Procedures
The procedural provisions applicable to title VI of the Civil Rights Act of 1964
apply to this part.