TITLE 34--EDUCATION
CHAPTER I--OFFICE FOR CIVIL RIGHTS,
DEPARTMENT OF EDUCATION

PART 104--NONDISCRIMINATION ON THE
BASIS OF HANDICAP IN PROGRAMS AND
ACTIVITIES RECEIVING FEDERAL FINANCIAL
ASSISTANCE

Subpart A--General Provisions
Sec.
104.1 Purpose.
104.2 Application.
104.3 Definitions.
104.4 Discrimination prohibited.
104.5 Assurances required.
104.6 Remedial action, voluntary action, and
self-evaluation.
104.7 Designation of responsible employee and
adoption of grievance procedures.
104.8 Notice.
104.9 Administrative requirements for small
recipients.
104.10 Effect of state or local law or other
requirements and effect of employment
opportunities.

Subpart B--Employment Practices
104.11 Discrimination prohibited.
104.12 Reasonable accommodation.
104.13 Employment criteria.
104.14 Preemployment inquiries.

Subpart C--Program Accessibility
104.21 Discrimination prohibited.
104.22 Existing facilities.
104.23 New construction.

Subpart D--Preschool, Elementary,
and Secondary Education

104.31 Application of this subpart.
104.32 Location and notification.
104.33 Free appropriate public education.
104.34 Educational setting.
104.35 Evaluation and placement.
104.36 Procedural safeguards.
104.37 Nonacademic services.
104.38 Preschool and adult education programs.
104.39 Private education programs.

Subpart E--Postsecondary Education
104.41 Application of this subpart.
104.42 Admissions and recruitment.
104.43 Treatment of students; general.
104.44 Academic adjustments.
104.45 Housing.
104.46 Financial and employment assistance to
students.
104.47 Nonacademic services.

Subpart F--Health, Welfare,
and Social Services

104.51 Application of this subpart.
104.52 Health, welfare, and other social services.
104.53 Drug and alcohol addicts.
104.54 Education of institutionalized persons.

Subpart G--Procedures
104.61 Procedures.
Appendix A to Part 104--Analysis of Final
Regulation
Appendix B to Part 104--Guidelines for Eliminating
Discrimination and Denial of Services on the Basis of
Race, Color, National Origin, Sex, and Handicap in
Vocational Education Programs [Note]

Authority: 20 U. S. C. 1405; 29 U. S. C. 794.
Source: 45 FR 30936, May 9, 1980, unless otherwise
noted.

Subpart A--General Provisions
Sec. 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.

Sec. 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.

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Sec. 104.3 Definitions.
As used in this part, the term:
(a) The Act means the Rehabilitation Act of 1973,
Pub. L. 93-112, as amended by the Rehabilita-tion
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.
(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.
(g) Applicant for assistance means one who
submits an application, request, or plan
required to be approved by a Department
official or by a recipient as a condition to
becoming a recipient.
(h) Federal financial assistance means any grant,
loan, contract (other than a procurement
contract or a contract of insurance or
guaranty), or any other arrangement by which
the Department provides or otherwise makes
available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest
in or use of such property, including:
(i) Transfers or leases of such property for
less than fair market value or for reduced
consideration; and
(ii) Proceeds from a subsequent transfer or
lease of such property if the Federal share of
its fair market value is not returned to the
Federal Government.
(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)( 1) 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 misclassi-fied
as having, a mental or physical impair-ment
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:
(1) With respect to employment, a handicapped
person who, with reasonable accommodation,
can perform the essential functions of the job in
question;
(2) With respect to public preschool elementary,
secondary, or adult educational services, a
handicappped person

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(i) of an age during which nonhandicapped
persons are provided such services,
(ii) of any 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 Handi-capped
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 characteris-tic
that renders a person a handicapped
person as defined in paragraph (j) of this
section.

Sec. 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 activitiy 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, organiza-tion,
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 handi-capped
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

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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.

Sec. 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.
(b) Duration of obligation.
(1) In the case of Federal financial assistance
extended in the form of real property or to
provide real property or structures on the
property, the assurance will obligate the
recipient or, in the case of a subsequent transfer,
the transferee, for the period during which the
real property or structures are used for the
purpose for which Federal financial assistance is
extended or for another purpose involving the
provision of similar services or benefits.
(2) In the case of Federal financial assistance
extended to provide personal property, the
assurance will obligate the recipient for the
period during which it retains ownership or
possession of the property.
(3) In all other cases the assurance will obligate
the recipient for the period during which
Federal financial assistance is extended.
(c) Covenants.
(1) Where Federal financial assistance is
provided in the form of real property or interest
in the property from the Department, the
instrument effecting or recording this transfer
shall contain a covenant running with the land

to assure nondiscrimination for the period
during which the real property is used for a
purpose for which the Federal financial
assistance is extended or for another purpose
involving the provision of similar services or
benefits.
(2) Where no transfer of property is involved but
property is purchased or improved with Federal
financial assistance, the recipient shall agree to
include the covenant described in paragraph
(b)( 2) of this section in the instrument effecting
or recording any subsequent transfer of the
property.
(3) Where Federal financial assistance is
provided in the form of real property or interest
in the property from the Department, the
covenant shall also include a condition coupled
with a right to be reserved by the Department to
revert title to the property in the event of a
breach of the covenant. If a transferee of real
property proposes to mortgage or otherwise
encumber the real property as security for
financing construction of new, or improvement
of existing, facilities on the property for the
purposes for which the property was trans-ferred,
the Assistant Secretary may, upon
request of the transferee and if necessary to
accomplish such financing and upon such
conditions as he or she deems appropriate, agree
to forbear the exercise of such right to revert title
for so long as the lien of such mortgage or other
encumbrance remains effective.

Sec. 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 discrimina-º

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tion 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 pro-gram
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)( 1) 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.

Sec. 104.7 Designation of responsible employee
and adoption of grievance proce-dures.

(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.

Sec. 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 Sec. 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.

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Sec. 104.9 Administrative requirements for
small recipients.

The Assistant Secretary may require any recipient
with fewer than fifteen employees, or any class of
such recipients, to comply with Secs. 104.7 and
104.8, in whole or in part, when the Assistant
Secretary finds a violation of this part or finds that
such compliance will not significantly impair the
ability of the recipient or class of recipients
to provide benefits or services.

Sec. 104.10 Effect of state or local law or other
requirements and effect of
employment opportunities.

(a) The obligation to comply with this part is not
obviated or alleviated by the existence of any
state or local law or other requirement that, on
the basis of handicap, imposes prohibitions or
limits upon the eligibility of qualified
handicapped persons to receive services or to
practice any occupation or profession.
(b) The obligation to comply with this part is not
obviated or alleviated because employment
opportunities in any occupation or profession
are or may be more limited for handicapped
persons than for nonhandicapped persons.

Subpart B--Employment Practices
Sec. 104.11 Discrimination prohibited.
(a) General.
(1) No qualified handicapped person shall, on
the basis of handicap, be subjected to discrimi-nation
in employment under any program or
activity to which this part applies.
(2) A recipient that receives assistance under the
Education of the Handicapped Act shall take
positive steps to employ and advance in
employment qualified handicapped persons in
programs assisted under that Act.
(3) A recipient shall make all decisions
concerning employment under any program or
activity to which this part applies in a manner
which ensures that discrimination on the basis
of handicap does not occur and may not limit,
segregate, or classify applicants or employees in
any way that adversely affects their opportuni-ties
or status because of handicap.
(4) A recipient may not participate in a

contractual or other relationship that has the
effect of subjecting qualified handicapped
applicants or employees to discrimination
prohibited by this subpart. The relationships
referred to in this paragraph include relation-ships
with employment and referral agencies,
with labor unions, with organizations providing
or administering fringe benefits to employees of
the recipient, and with organizations providing
training and apprenticeship programs.
(b) Specific activities. The provisions of this
subpart apply to:
(1) Recruitment, advertising, and the processing
of applications for employment;
(2) Hiring, upgrading, promotion, award of
tenure, demotion, transfer, layoff, termination,
right of return from layoff and rehiring;
(3) Rates of pay or any other form of compensa-tion
and changes in compensation;
(4) Job assignments, job classifications,
organizational structures, position descriptions,
lines of progression, and seniority lists;
(5) Leaves of absense, sick leave, or any other
leave;
(6) Fringe benefits available by virtue of
employment, whether or not administered by
the recipient;
(7) Selection and financial support for training,
including apprenticeship, professional meetings,
conferences, and other related activities, and
selection for leaves of absence to pursue
training;
(8) Employer sponsored activities, including
social or recreational programs; and
(9) Any other term, condition, or privilege of
employment.
(c) A recipient's obligation to comply with this
subpart is not affected by any inconsistent
term of any collective bargaining agreement to
which it is a party.

Sec. 104.12 Reasonable accommodation.
(a) A recipient shall make reasonable accommo-dation
to the known physical or mental
limitations of an otherwise qualified
handicapped applicant or employee unless the
recipient can demonstrate that the accommo-dation
would impose an undue hardship on
the operation of its program.
(b) Reasonable accommodation may include:
(1) Making facilities used by employees readily
accessible to and usable by handicapped
persons, and

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(2) Job restructuring, part-time or modified
work schedules, acquisition or modification of
equipment or devices, the provision of readers
or interpreters, and other similar actions.
(c) In determining pursuant to paragraph (a) of
this section whether an accommodation
would impose an undue hardship on the
operation of a recipient's program, factors to
be considered include:
(1) The overall size of the recipient's program
with respect to number of employees, number
and type of facilities, and size of budget;
(2) The type of the recipient's operation,
including the composition and structure of the
recipient's workforce; and
(3) The nature and cost of the accommodation
needed.
(d) A recipient may not deny any employment
opportunity to a qualified handicapped
employee or applicant if the basis for the
denial is the need to make reasonable
accommodation to the physical or mental
limitations of the employee or applicant.

Sec. 104.13 Employment criteria.
(a) A recipient may not make use of any
employment test or other selection criterion
that screens out or tends to screen out
handicapped persons or any class of
handicapped persons unless:
(1) The test score or other selection criterion, as
used by the recipient, is shown to be job-related
for the position in question, and
(2) Alternative job-related tests or criteria that
do not screen out or tend to screen out as many
handicapped persons are not shown by the
Director to be available.
(b) A recipient shall select and administer tests
concerning employment so as best to ensure
that, when administered to an applicant or
employee who has a handicap that impairs
sensory, manual, or speaking skills, the test
results accurately reflect the applicant's or
employee's job skills, aptitude, or whatever
other factor the test purports to measure,
rather than reflecting the applicant's or
employee's impaired sensory, manual, or
speaking skills (except where those skills are
the factors that the test purports to measure).

Sec. 104.14 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c)

of this section, a recipient may not conduct a
preemployment medical examination or may
not make preemployment inquiry of an
applicant as to whether the applicant is a
handicapped person or as to the nature or
severity of a handicap. A recipient may,
however, make preemployment inquiry into
an applicant's ability to perform job-related
functions.
(b) When a recipient is taking remedial action to
correct the effects of past discrimination
pursuant to Sec. 104.6 (a), when a recipient is
taking voluntary action to overcome the
effects of conditions that resulted in limited
participation in its federally assisted program
or activity pursuant to Sec. 104.6( b), or when a
recipient is taking affirmative action pursuant
to section 503 of the Act, the recipient may
invite applicants for employment to indicate
whether and to what extent they are
handicapped, Provided, That:
(1) The recipient states clearly on any written
questionnaire used for this purpose or makes
clear orally if no written questionnaire is used
that the information requested is intended for
use solely in connection with its remedial
action obligations or its voluntary or
affirmative action efforts; and
(2) The recipient states clearly that the
information is being requested on a voluntary
basis, that it will be kept confidential as
provided in paragraph (d) of this section, that
refusal to provide it will not subject the
applicant or employee to any adverse
treatment, and that it will be used only in
accordance with this part.
(c) Nothing in this section shall prohibit a
recipient from conditioning an offer of
employment on the results of a medical
examination conducted prior to the employ-ee's
entrance on duty, Provided, That:
(1) All entering employees are subjected to
such an examination regardless of handicap,
and
(2) The results of such an examination are
used only in accordance with the require-ments
of this part.
(d) Information obtained in accordance with this
section as to the medical condition or history
of the applicant shall be collected and
maintained on separate forms that shall be
accorded confidentiality as medical records,
except that:
(1) Supervisors and managers may be informed

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regarding restrictions on the work or duties of
handicapped persons and regarding necessary
accommodations;
(2) First aid and safety personnel may be
informed, where appropriate, if the condition
might require emergency treatment; and
(3) Government officials investigating
compliance with the Act shall be provided
relevant information upon request.

Subpart C--Program Accessibility
Sec. 104.21 Discrimination prohibited.
No qualified handicapped person shall, because a
recipient's facilities are inaccessible to or unusable
by handicapped persons, be denied the benefits of,
be excluded from participation in, or otherwise
be subjected to discrimination under any program or
activity to which this part applies.

Sec. 104.22 Existing facilities.
(a) Program accessibility. A recipient shall
operate each program or activity to which this
part applies so that the program or activity,
when viewed in its entirety, is readily
accessible to handicapped persons. This
paragraph does not require a recipient to
make each of its existing facilities or every
part of a facility accessible to and usable by
handicapped persons.
(b) Methods. A recipient may comply with the
requirements of paragraph (a) of this section
through such means as redesign of equipment,
reassignment of classes or other services to
accessible buildings, assignment of aides to
beneficiaries, home visits, delivery of health,
welfare, or other social services at alternate
accessible sites, alteration of existing facilities
and construction of new facilities in
conformance with the requirements of Sec.
104.23, or any other methods that result in
making its program or activity accessible to
handicapped persons. A recipient is not
required to make structural changes in
existing facilities where other methods are
effective in achieving compliance with
paragraph (a) of this section. In choosing
among available methods for meeting the
requirement of paragraph (a) of this section, a
recipient shall give priority to those methods

that offer programs and activities to
handicapped persons in the most integrated
setting appropriate.
(c) Small health, welfare, or other social service
providers. If a recipient with fewer than
fifteen employees that provides health,
welfare, or other social services finds, after
consultation with a handicapped person
seeking its services, that there is no method of
complying with paragraph (a) of this section
other than making a significant alteration in its
existing facilities, the recipient may, as an
alternative, refer the handicapped person to
other providers of those services that are
accessible.
(d) Time period. A recipient shall comply with the
requirement of paragraph (a) of this section within
sixty days of the effective date of this part except
that where structural changes in facilities are
necessary, such changes shall be made within
three years of the effective date of this part, but in
any event as expeditiously as possible.
(e) Transition plan. In the event that structural
changes to facilities are necessary to meet the
requirement of paragraph (a) of this section, a
recipient shall develop, within six months of
the effective date of this part, a transition plan
setting forth the steps necessary to complete
such changes. The plan shall be developed
with the assistance of interested persons,
including handicapped persons or organiza-tions
representing handicapped persons. A
copy of the transition plan shall be made
available for public inspection. The plan shall,
at a minimum:
(1) Identify physical obstacles in the recipient's
facilities that limit the accessibility of its
program or activity to handicappped persons;
(2) Describe in detail the methods that will be
used to make the facilities accessible;
(3) Specify the schedule for taking the steps
necessary to achieve full program accessibility
and, if the time period of the transition plan is
longer than one year, identify the steps of that
will be taken during each year of the transition
period; and
(4) Indicate the person responsible for
implementation of the plan.
(f) Notice. The recipient shall adopt and
implement procedures to ensure that
interested persons, including persons with
impaired vision or hearing, can obtain
information as to the existence and location of
services, activities, and facilities that are

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accessible to and usuable by handicapped
persons.

Sec. 104.23 New construction.
(a) Design and construction. Each facility or part
of a facility constructed by, on behalf of, or for
the use of a recipient shall be designed and
constructed in such manner that the facility or
part of the facility is readily accessible to and
usable by handicapped persons, if the
construction was commenced after the
effective date of this part.
(b) Alteration. Each facility or part of a facility
which is altered by, on behalf of, or for the use
of a recipient after the effective date of this
part in a manner that affects or could affect the
usability of the facility or part of the facility
shall, to the maximum extent feasible, be
altered in such manner that the altered portion
of the facility is readily accessible to and
usable by handicapped persons.
(c) Conformance with Uniform Federal
Accessibility Standards.
(1) Effective as of January 18, 1991, design,
construction, or alteration of buildings in
conformance with sections 3-8 of the Uniform
Federal Accessibility Standards (UFAS)
(Appendix A to 41 CFR subpart 101-19.6) shall
be deemed to comply with the requirements of
this section with respect to those buildings.
Departures from particular technical and
scoping requirements of UFAS by the use of
other methods are permitted where substantial-ly
equivalent or greater access to and usability of
the building is provided.
(2) For purposes of this section, section
4.1.6( 1)( g) of UFAS shall be interpreted to
exempt from the requirements of UFAS only
mechanical rooms and other spaces that,
because of their intended use, will not require
accessibility to the public or beneficiaries or
result in the employment or residence therein of
persons with phusical handicaps.
(3) This section does not require recipients to
make building alterations that have little
likelihood of being accomplished without
removing or altering a load-bearing structural
member.

[45 FR 30936, May 9, 1980; 45 FR 37426, June 3,
1980, as amended at 55 FR 52138, 52141, Dec. 19,
1990]

Subpart D--Preschool, Elementary, and
Secondary Education

Sec. 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 fromFederal financial
assistance for the operation of, such programs or
activities.

Sec. 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.

Sec. 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 education-al
needs of handicapped persons as adequate-ly
as the needs of nonhandicapped persons are
met and
(ii) are based upon adherence to procedures
that satisfy the requirements of Secs. 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

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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 Sec. 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 Sec. 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.

Sec. 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 handi-capped
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 education-al
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 Sec.
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.

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Sec. 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 require-ments
of paragraph (b) of this section of any
person who, because of handicap, needs or is
belived 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 Sec. 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.

Sec. 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.

Sec. 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) 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,

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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 Sec. 104.34 and only if no
qualified handicapped student is denied the
opportunity to compete for teams or to partic-ipate
in courses that are not separate or
different.

Sec. 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.

Sec. 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 Sec. 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 Secs. 104.35 and 104.36. Each
recipient to which this section applies is
subject to the provisions of Secs. 104.34,
104.37, and 104.38.

Subpart E--Postsecondary Education
Sec. 104.41 Application of this subpart.
Subpart E applies to postsecondary education
programs and activities, including postsecondary
vocational 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.

Sec. 104.42 Admissions and recruitment.
(a) General. Qualified handicapped persons may
not, on the basis of handicap, be denied
admission or be subjected to discrimination in
admission or recruitment by a recipient to
which this subpart applies.
(b) Admissions. In administering its admission
policies, a recipient to which this subpart
applies:
(1) May not apply limitations upon the number
or proportion of handicapped persons who may
be admitted;
(2) May not make use of any test or criterion for
admission that has a disproportionate, adverse
effect on handicapped persons or any class of
handicapped persons unless
(i) the test or criterion, as used by the
recipient, has been validated as a predictor of
success in the education program or activity in
question and
(ii) alternate tests or criteria that have a less
disproportionate, adverse effect are not shown
by the Assistant Secretary to be available.
(3) Shall assure itself that
(i) admissions tests are selected and
administered so as best to ensure that, when a

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test is administered to an applicant who has a
handicap that impairs sensory, manual, or
speaking skills, the test results accurately
reflect the applicant's aptitude or achievement
level or whatever other factor the test purports
to measure, rather than reflecting the
applicant's impaired sensory, manual, or
speaking skills (except where those skills are
the factors that the test purports to measure);
(ii) admissions tests that are designed for
persons with impaired sensory, manual, or
speaking skills are offered as often and in as
timely a manner as are other admissions tests;
and
(iii) admissions tests are administered in
facilities that, on the whole, are accessible to
handicapped persons; and
(4) Except as provided in paragraph (c) of this
section, may not make preadmission inquiry as
to whether an applicant for admission is a
handicapped person but, after admission, may
make inquiries on a confidential basis as to
handicaps that may require accommodation.
(c) Preadmission inquiry exception. When a
recipient is taking remedial action to correct
the effects of past discrimination pursuant to
Sec. 104.6( a) or when a recipient is taking
voluntary action to overcome the effects of
conditions that resulted in limited participa-tion
in its federally assisted program or
activity pursuant to Sec. 104.6( b), the recipient
may invite applicants for admission to
indicate whether and to what extent they are
handicapped, Provided, That:
(1) The recipient states clearly on any written
questionnaire used for this purpose or makes
clear orally if no written questionnaire is used
that the information requested is intended for
use solely in connection with its remedial action
obligations or its voluntary action efforts; and
(2) The recipient states clearly that the
information is being requested on a voluntary
basis, that it will be kept confidential, that
refusal to provide it will not subject the
applicant to any adverse treatment, and that it
will be used only in accordance with this part.
(d) Validity studies. For the purpose of paragraph
(b)( 2) of this section, a recipient may base
prediction equations on first year grades, but
shall conduct periodic validity studies against
the criterion of overall success in the
education program or activity in question in
order to monitor the general validity of the
test scores.

Sec. 104.43 Treatment of students; general.
(a) No qualified handicapped student shall, on
the basis of handicap, be excluded from
participation in, be denied the benefits of, or
otherwise be subjected to discrimination
under any academic, research, occupational
training, housing, health insurance, counsel-ing,
financial aid, physical education, athletics,
recreation, transportation, other extracurricu-lar,
or other postsecondary education program
or activity to which this subpart applies.
(b) A recipient to which this subpart applies that
considers participation by students in
education programs or activities not operated
wholly by the recipient as part of, or
equivalent to, and education program or
activity operated by the recipient shall assure
itself that the other education program or
activity, as a whole, provides an equal
opportunity for the participation of qualified
handicapped persons.
(c) A recipient to which this subpart applies may
not, on the basis of handicap, exclude any
qualified handicapped student from any
course, course of study, or other part of its
education program or activity.
(d) A recipient to which this subpart applies shall
operate its programs and activities in the most
integrated setting appropriate.

Sec. 104.44 Academic adjustments.
(a) Academic requirements. A recipient to which
this subpart applies shall make such
modifications to its academic requirements as
are necessary to ensure that such requirements
do not discriminate or have the effect of
discriminating, on the basis of handicap,
against a qualified handicapped applicant or
student. Academic requirements that the
recipient can demonstrate are essential to the
program of instruction being pursued by such
student or to any directly related licensing
requirement will not be regarded as
discriminatory within the meaning of this
section. Modifications may include changes in
the length of time permitted for the comple-tion
of degree requirements, substitution of
specific courses required for the completion of
degree requirements, and adaptation of the
manner in which specific courses are
conducted.

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(b) Other rules. A recipient to which this subpart
applies may not impose upon handicapped
students other rules, such as the prohibition of
tape recorders in classrooms or of dog guides
in campus buildings, that have the effect of
limiting the participation of handicapped
students in the recipient's education program
or activity.
(c) Course examinations. In its course examina-tions
or other procedures for evaluating
students' academic achievement in its
program, a recipient to which this subpart
applies shall provide such methods for eval-uating
the achievement of students who have
a handicap that impairs sensory, manual, or
speaking skills as will best ensure that the
results of the evaluation represents the
student's achievement in the course, rather
than reflecting the student's impaired sensory,
manual, or speaking skills (except where such
skills are the factors that the test purports to
measure).
(d) Auxiliary aids.
(1) A recipient to which this subpart applies
shall take such steps as are necessary to ensure
that no handicapped student is denied the
benefits of, excluded from participation in, or
otherwise subjected to discrimination under the
education program or activity operated by the
recipient because of the absence of educational
auxiliary aids for students with impaired
sensory, manual, or speaking skills.
(2) Auxiliary aids may include taped texts,
interpreters or other effective methods of
making orally delivered materials available to
students with hearing impairments, readers in
libraries for students with visual impairments,
classroom equipment adapted for use by
students with manual impairments, and other
similar services and actions. Recipients need not
provide attendants, individually prescribed
devices, readers for personal use or study, or
other devices or services of a personal nature.

Sec. 104.45 Housing.
(a) Housing provided by the recipient. A
recipient that provides housing to its
nonhandicapped students shall provide
comparable, convenient, and accessible
housing to handicapped students at the same
cost as to others. At the end of the transition
period provided for in subpart C, such
housing shall be available in sufficient

quantity and variety so that the scope of
handicapped students' choice of living
accommodations is, as a whole, comparable to
that of nonhandicapped students.
(b) Other housing. A recipient that assists any
agency, organization, or person in making
housing available to any of its students shall
take such action as may be necessary to assure
itself that such housing is, as a whole, made
available in a manner that does not result in
discrimination on the basis of handicap.

Sec. 104.46 Financial and employment assistance
to students.

(a) Provision of financial assistance.
(1) In providing financial assistance to qualified
handicapped persons, a recipient to which this
subpart applies may not,
(i) On the basis of handicap, provide less
assistance than is provided to nonhandicap-ped
persons, limit eligibility for assistance, or
otherwise discriminate or
(ii) Assist any entity or person that provides
assistance to any of the recipient's students in
a manner that discriminates against qualified
handicapped persons on the basis of handicap.
(2) A recipient may administer or assist in the
administration of scholarships, fellowships, or
other forms of financial assistance established
under wills, trusts, bequests, or similar legal
instruments that require awards to be made on
the basis of factors that discriminate or have the
effect of discriminating on the basis of handicap
only if the overall effect of the award of
scholarships, fellowships, and other forms of
financial assistance is not discriminatory on the
basis of handicap.
(b) Assistance in making available outside
employment. A recipient that assists any
agency, organization, or person in providing
employment opportunities to any of its stud-ents
shall assure itself that such employment
opportunities, as a whole, are made available
in a manner that would not violate subpart B
if they were provided by the recipient.
(c) Employment of students by recipients. A
recipient that employs any of its students may
not do so in a manner that violates subpart B.

Sec. 104.47 Nonacademic services.
(a) Physical education and athletics.
(1) In providing physical education courses and

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athletics and similar programs and activities to
any of its students, a recipient to which this
subpart applies may not disacriminate on the
basis of handicap. A recipient that offers
physical education courses or that operates or
sponsors intercollegiate, club, or intramural
athletics shall provide to qualified handicapped
students an equal opportunity for in these
activities.
(2) A recipient may offer to handicapped
students physical education and athletic
activities that are separate or different only if
separation or differentiation is consistent with
the requirements of Sec. 104.43( d) 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.
(b) Counseling and placement 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. This
requirement does not preclude a recipient
from providing factual information about
licensing and certification requirements that
may present obstacles to handicapped persons
in their pursuit of particular careers.
(c) Social organizations. A recipient that provides
significant assistance to fraternities, sororities,
or similar organizations shall assure itself that
the membership practices of such organiza-tions
do not permit discrimination otherwise
prohibited by this subpart.

Subpart F--Health, Welfare, and Social
Services

Sec. 104.51 Application of this subpart.
Subpart F applies to health, welfare, and other social
service 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.

Sec. 104.52 Health, welfare, and other social
services.

(a) General. In providing health, welfare, or other
social services or benefits, a recipient may not,
on the basis of handicap:
(1) Deny a qualified handicapped person these
benefits or services;
(2) Afford a qualified handicapped person an
opportunity to receive benefits or services that is
not equal to that offered nonhandicapped
persons;
(3) Provide a qualified handicapped person with
benefits or services that are not as effective (as
defined in Sec. 104.4( b)) as the benefits or
services provided to others;
(4) Provide benefits or services in a manner that
limits or has the effect of limiting the participa-tion
of qualified handicapped persons; or
(5) Provide different or separate benefits or
services to handicapped persons except where
necessary to provide qualified handicapped
persons with benefits and services that are as
effective as those provided to others.
(b) Notice. A recipient that provides notice
concerning benefits or services or written
material concerning waivers of rights or
consent to treatment shall take such steps as
are necessary to ensure that qualified
handicapped persons, including those with
impaired sensory or speaking skills, are not
denied effective notice because of their
handicap.
(c) Emergency treatment for the hearing
impaired. A recipient hospital that provides
health services or benefits shall establish a
procedure for effective communication with
persons with impaired hearing for the
purpose of providing emergency health care.
(d) Auxiliary aids.
(1) A recipient to which this subpart applies that
employs fifteen or more persons shall provide
appropriate auxiliary aids to persons with
impaired sensory, manual, or speaking skills,
where necessary to afford such persons an equal
opportunity to benefit from the service in
question.
(2) The Assistant Secretary may require
recipients with fewer than fifteen employees to
provide auxiliary aids where the provision of
aids would not significantly impair the ability of
the recipient to provide its benefits or services.
(3) For the purpose of this paragraph, auxiliary

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aids may include brailled and taped material,
interpreters, and other aids for persons with
impaired hearing or vision.

Sec. 104.53 Drug and alcohol addicts.
A recipient to which this subpart applies that
operates a general hospital or outpatient facility may
not discriminate in admission or treatment against a
drug or alcohol abuser or alcoholic who is suffering
from a medical condition, because of the person's
drug or alcohol abuse or alcoholism.

Sec. 104.54 Education of institutionalized
persons.

A recipient to which this subpart applies and that
operates or supervises a program or activity for
persons who are institutionalized because of
handicap shall ensure that each qualified handi-capped
person, as defined in Sec. 104.3( k)( 2), in its
program or activity is provided an appropriate
education, as defined in Sec. 104.33( b). Nothing in
this section shall be interpreted as altering in any
way the obligations of recipients under subpart D.

Subpart G--Procedures
Sec. 104.61 Procedures.
The procedural provisions applicable to title VI of
the Civil Rights Act of 1964 apply to this part. These
procedures are found in Secs. 100.6-100.10 and part
101 of this title.

Appendix A to Part 104--
Analysis of Final Regulation

Subpart A--General Provisions
Definitions--
1. Recipient. Section 104.23 contains definitions
used throughout the regulation. One comment
requested that the regulation specify that nonpublic
elementary and secondary schools that are not
otherwise recipients do not become recipients by
virtue of the fact their students participate in certain
federally funded programs. The Secretary believes it
unnecessary to amend the regulation in this regard,
because almost identical language in the Depart-ment's
regulations implementing title VI and title IX

of the Education Amendments of 1972 has
consistently been interpreted so as not to render
such schools recipients. These schools, however, are
indirectly subject to the substantive requirements of
this regulation through the application of Sec.
104.4( b)( iv), which prohibits recipients from
assisting agencies that discriminate on the basis of
handicap in providing services to beneficiaries of the
recipients' programs.

2. Federal financial assistance. In Sec. 104.3( h),
defining federal financial assistance, a clarifying
change has been made: procurement contracts are
specifically excluded. They are covered, however, by
the Department of Labor's regulation under section
503. The Department has never considered such
contracts to be contracts of assistance; the explicit
exemption has been added only to avoid possible
confusion. The proposed regulation's exemption of
contracts of insurance or guaranty has been retained.
A number of comments argued for its deletion
on the ground that section 504, unlike title VI and
title IX, contains no statutory exemption for such
contracts. There is no indication, however, in the
legislative history of the Rehabilitation Act of 1973
or of the amendments to that Act in 1974, that
Congress intended section 504 to have a broader
application, in terms of federal financial assistance,
than other civil rights statutes. Indeed, Congress
directed that section 504 be implemented in the
same manner as titles VI and IX. In view of the long
established exemption of contracts of insurance or
guaranty under title VI, we think it unlikely that
Congress intended section 504 to apply to such
contracts.

3. Handicapped person. Section 104.3( j), which
defines the class of persons protected under the
regulation, has not been substantially changed. The
definition of handicapped person in paragraph (j)( 1)
conforms to the statutory definition of handicapped
person that is applicable to section 504, as set forth
in section 111( a) of the Rehabilitation Act Amend-ments
of 1974, Pub. L. 93-516.
The first of the three parts of the statutory and
regulatory definition includes any person who has a
physical or mental impairment that substantially
limits one or more major life activities. Paragraph
(j)( 2)( i) further defines physical or mental impair-ments.
The definition does not set forth a list of
specific diseases and conditions that constitute
physical or mental impairments because of the
difficulty of ensuring the comprehensiveness of any
such list. The term includes, however, such diseases

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and conditions as orthopedic, visual, speech, and
hearing impairments, cerebral palsy, epilepsy,
muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, emotional
illness, and, as discussed below, addiction and
alcoholism.
It should be emphasized that a physical or mental
impairment does not constitute a handicap for
purposes of section 504 unless its severity is such
that it results in a substantial limitation of one or
more major life activities. Several comments
observed the lack of any definition in the proposed
regulation of the phrase ``substantially limits. '' The
Department does not believe that a definition of this
term is possible at this time.
A related issue raised by several comments is
whether the definition of handicapped person is
unreasonably broad. Comments suggested
narrowing the definition in various ways. The most
common recommendation was that only ``tradition-al''
handicaps be covered. The Department
continues to believe, however, that it has no
flexibility within the statutory definition to limit the
term to persons who have those severe, permanent,
or progressive conditions that are most commonly
regarded as handicaps. The Department intends,
however, to give particular attention in its
enforcement of section 504 to eliminating discrimi-nation
against persons with the severe handicaps
that were the focus of concern in the
Rehabilitation Act of 1973.
The definition of handicapped person also
includes specific limitations on what persons are
classified as handicapped under the regulation. The
first of the three parts of the definition specifies
that only physical and mental handicaps are
included. Thus, environmental, cultural, and
economic disadvantage are not in themselves
covered; nor are prison records, age, or homosexual-ity.
Of course, if a person who has any of these
characteristics also has a physical or
mental handicap, the person is included within the
definition of handicapped person.
In paragraph (j)( 2)( i), physical or mental
impairment is defined to include, among other
impairments, specific learning disabilities. The
Department will interpret the term as it is used in
section 602 of the Education of the Handicapped
Act, as amended. Paragraph (15) of section
602 uses the term ``specific learning disabilities'' to
describe such conditions as perceptual handicaps,
brain injury, minimal brain dysfunction, dyslexia,
and developmental aphasia.
Paragraph (j)( 2)( i) has been shortened, but not

substantively changed, by the deletion of clause (C),
which made explicit the inclusion of any condition
which is mental or physical but whose precise
nature is not at present known. Clauses (A) and (B)
clearly comprehend such conditions.
The second part of the statutory and regulatory
definition of handicapped person includes any
person who has a record of a physical or mental
impairment that substantially limits a major life
activity. Under the definition of ``record'' in
paragraph (j)( 2)( iii), persons who have a history of a
handicapping condition but no longer have the
condition, as well as persons who have been
incorrectly classified as having such a condition, are
protected from discrimination under section 504.
Frequently occurring examples of the first group are
persons with histories of mental or emotional illness,
heart disease, or cancer; of the second group,
persons who have been misclassified as mentally
retarded.
The third part of the statutory and regulatory
definition of handicapped person includes any
person who is regarded as having a physical or
mental impairment that substantially limits one or
more major life activities. It includes many persons
who are ordinarily considered to be handicapped
but who do not technically fall within the
first two parts of the statutory definition, such as
persons with a limp. This part of the definition also
includes some persons who might not ordinarily be
considered handicapped, such as persons with
disfiguring scars, as well as persons who have no
physical or mental impairment but are treated by a
recipient as if they were handicapped.

4. Drug addicts and alcoholics. As was the case
during the first comment period, the issue of
whether to include drug addicts and alcoholics
within the definition of handicapped person was of
major concern to many commenters. The arguments
presented on each side of the issue were similar
during the two comment periods, as was the
preference of commenters for exclusion of this group
of persons. While some comments reflected
misconceptions about the implications of including
alcoholics and drug addicts within the scope of the
regulation, the Secretary understands the concerns
that underlie the comments on this question and
recognizes that application of section 504 to active
alcoholics and drug addicts presents sensitive and
difficult questions that must be taken into account in
interpretation and enforcement.
The Secretary has carefully examined the issue
and has obtained a legal opinion from the Attorney

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General. That opinion concludes that drug addiction
and alcoholism are ``physical or mental impair-ments''
within the meaning of section 7( 6) of the
Rehabilitation Act of 1973, as amended, and that
drug addicts and alcoholics are therefore handi-capped
for purposes of section 504 if their
impairment substantially limits one of their major
life activities. The Secretary therefore believes that
he is without authority to exclude these conditions
from the definition. There is a medical and legal
consensus that alcoholism and drug addiction are
diseases, although there is disagreement as to
whether they are primarily mental or physical. In
addition, while Congress did not focus specifically
on the problems of drug addiction and alcoholism
in enacting section 504, the committees that
considered the Rehabilitation Act of 1973 were made
aware of the Department's long-standing practice of
treating addicts and alcoholics as handicapped
individuals eligible for rehabilitation services under
the Vocational Rehabilitation Act.
The Secretary wishes to reassure recipients that
inclusion of addicts and alcoholics within the scope
of the regulation will not lead to the consequences
feared by many commenters. It cannot be empha-sized
too strongly that the statute and the regulation
apply only to discrimination against qualified
handicapped persons solely by reason of
their handicap. The fact that drug addiction and
alcoholism may be handicaps does not mean that
these conditions must be ignored in determining
whether an individual is qualified for services or
employment opportunities. On the contrary, a
recipient may hold a drug addict or alcoholic to the
same standard of performance and behavior to
which it holds others, even if any unsatisfactory
performance or behavior is related to the person's
drug addiction or alcoholism. In other words, while
an alcoholic or drug addict may not be denied
services or disqualified from employment solely
because of his or her condition, the behavioral
manifestations of the condition may be taken
into account in determining whether he or she is
qualified.
With respect to the employment of a drug addict
or alcoholic, if it can be shown that the addiction or
alcoholism prevents successful performance of the
job, the person need not be provided the employ-ment
opportunity in question. For example, in
making employment decisions, a recipient may
judge addicts and alcoholics on the same basis it
judges all other applicants and employees. Thus, a
recipient may consider--for all applicants including
drug addicts and alcoholics--past personnel records,

absenteeism, disruptive, abusive, or dangerous
behavior, violations of rules and unsatisfactory work
performance. Moreover, employers may enforce
rules prohibiting the possession or use of alcohol or
drugs in the work-place, provided that such rules
are enforced against all employees.
With respect to other services, the implications of
coverage, of alcoholics and drug addicts are
two-fold: first, no person may be excluded from
services solely by reason of the presence or history
of these conditions; second, to the extent that the
manifestations of the condition prevent the person
from meeting the basic eligibility requirements of
the program or cause substantial interference with
the operation of the program, the condition may be
taken into consideration. Thus, a college may not
exclude an addict or alcoholic as a student, on
the basis of addiction or alcoholism, if the person
can successfully participate in the education
program and complies with the rules of the
college and if his or her behavior does not impede
the performance of other students.
Of great concern to many commenters was the
question of what effect the inclusion of drug addicts
and alcoholics as handicapped persons would have
on school disciplinary rules prohibiting the use or
possession of drugs or alcohol by students. Neither
such rules nor their application to drug addicts or
alcoholics is prohibited by this regulation, provided
that the rules are enforced evenly with respect to
all students.

5. Qualified handicapped person. Paragraph (k)
of Sec. 104.3 defines the term ``qualified handi-capped
person. '' Throughout the regulation, this
term is used instead of the statutory term ``other-wise
qualified handicapped person. '' The Depart-ment
believes that the omission of the word
``otherwise'' is necessary in order to comport with
the intent of
the statute because, read literally, ``otherwise''
qualified handicapped persons include persons who
are qualified except for their handicap, rather than
in spite of their handicap. Under such a literal
reading, a blind person possessing all the qualifica-tions
for driving a bus except sight could be said to
be ``otherwise qualified'' for the job of
driving. Clearly, such a result was not intended by
Congress. In all other respects, the terms ``qualified''
and ``otherwise qualified'' are intended to be
interchangeable.
Section 104.3( k)( 1) defines a qualified handi-capped
person with respect to employment as a
handicapped person who can, with reasonable

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accommodation, perform the essential functions of
the job in question. The term ``essential functions''
does not appear in the corresponding provision of
the Department of Labor's section 503 regulation,
and a few commenters objected to its inclusion on
the ground that a handicapped person should be
able to perform all job tasks. However, the
Department believes that inclusion of the phrase is
useful in emphasizing that handicapped persons
should not be disqualified simply because they may
have difficulty in performing tasks that bear only a
marginal relationship to a particular job. Further, we
are convinced that inclusion of the phrase is not
inconsistent with the Department of Labor's
application of its definition.
Certain commenters urged that the definition of
qualified handicapped person be amended so as
explicitly to place upon the employer the burden of
showing that a particular mental or physical
characteristic is essential. Because the same result is
achieved by the requirement contained in paragraph
(a) of Sec. 104.13, which requires an employer to
establish that any selection criterion that tends to
screen out handicapped persons is job-related, that
recommendation has not been followed.
Section 104.3( k)( 2) defines qualified handicapped
person, with respect to preschool, elementary, and
secondary programs, in terms of age. Several
commenters recommended that eligibility for the
services be based upon the standard of substantial
benefit, rather than age, because of the need of many
handicapped children for early or extended services
if they are to have an equal opportunity to benefit
from education programs. No change has been
made in this provision, again because of the extreme
difficulties in administration that would result from
the choice of the former standard. Under the
remedial action provisions of Sec. 104.6( a)( 3),
however, persons beyond the age limits prescribed
in Sec. 104.3( k)( 2) may in appropriate cases be
required to be provided services that they were
formerly denied because of a recipient's violation of
section 504.
Section 104.3( k)( 2) states that a handicapped
person is qualified for preschool, elementary, or
secondary services if the person is of an age at which
nonhandicapped persons are eligible for such
services or at which State law mandates the
provision of educational services to handicapped
persons. In addition, the extended age ranges for
which recipients must provide full educational
opportunity to all handicapped persons in order to
be eligible for assistance under the Education of
the Handicapped Act--generally, 3-18 as of

September 1978, and 3-21 as of September 1980 are
incorporated by reference in this paragraph.
Section 104.3( k)( 3) defines qualified handicapped
person with respect to postsecondary educational
programs. As revised, the paragraph means that
both academic and technical standards must be met
by applicants to these programs. The term technical
standards refers to all nonacademic admissions
criteria that are essential to participation in the
program in question.

6. General prohibitions against discrimination.
Section 104.4 contains general prohibitions against
discrimination applicable to all recipients of
assistance from this Department.
Paragraph (b)( 1( i) prohibits the exclusion of
qualified handicapped persons from aids, benefits,
or services, and paragraph (ii) requires that equal
opportunity to participate or benefit be provided.
Paragraph (iii) requires that services provided to
handicapped persons be as effective as those
provided to the nonhandicapped. In paragraph (iv),
different or separate services are prohibited except
when necessary to provide equally effective benefits.
In this context, the term equally effective, defined
in paragraph (b)( 2), is intended to encompass the
concept of equivalent, as opposed to identical,
services and to acknowledge the fact that in order to
meet the individual needs of handicapped persons
to the same extent that the corresponding needs of
nonhandicapped persons are met, adjustments to
regular programs or the provision of different
programs may sometimes be necessary. This
standard parallels the one established under title VI
of Civil Rights Act of 1964 with respect to the
provision of educational services to students whose
primary language is not English. See Lau v. Nichols,
414 U. S. 563 (1974). To be equally effective, however,
an aid, benefit, or service need not produce equal
results; it merely must afford an equal opportunity
to achieve equal results.
It must be emphasized that, although separate
services must be required in some instances, the
provision of unnecessarily separate or different
services is discriminatory. The addition to
paragraph (b)( 2) of the phrase ``in the most
integrated setting appropriated to the person's
needs'' is intended to reinforce this general concept.
A new paragraph (b)( 3) has also been added to Sec.
104.4, requiring recipients to give qualified
handicapped persons the option of participating in
regular programs despite the existence of permissi-bly
separate or different programs. The requirement
has been reiterated in Secs. 104.38

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and 104.47 in connection with physical education
and athletics programs.
Section 104.4( b)( 1)( v) prohibits a recipient from
supporting another entity or person that subjects
participants or employees in the recipient's program
to discrimination on the basis of handicap. This
section would, for example, prohibit financial
support by a recipient to a community recreational
group or to a professional or social organization that
discriminates against handicapped persons. Among
the criteria to be considered in each case are the
substantiality of the relationship between the
recipient and the other entity, including financial
support by the recipient, and whether the other
entity's activities relate so closely to the recipient's
program or activity that they fairly should be
considered activities of the recipient itself.
Paragraph (b)( 1)( vi) was added in response to
comment in order to make explicit the prohibition
against denying qualified handicapped persons
the opportunity to serve on planning and advisory
boards responsible for guiding federally assisted
programs or activities.
Several comments appeared to interpret Sec.
104.4( b)( 5), which proscribes discriminatory site
selection, to prohibit a recipient that is located on
hilly terrain from erecting any new buildings at its
present site. That, of course, is not the case. This
paragraph is not intended to apply to construction
of additional buildings at an existing site. Of course,
any such facilities must be made accessible in
accordance with the requirements of Sec. 104.23.

7. Assurances of compliance. Section 104.5( a)
requires a recipient to submit to the Assistant
Secretary an assurance that each of its programs and
activities receiving or benefiting from Federal
financial assistance from this Department will be
conducted in compliance with this regulation. Many
commenters also sought relief from the paperwork
requirements imposed by the Department's
enforcement of its various civil rights responsibili-ties
by requesting the Department to issue one form
incorporating title VI, title IX, and section 504
assurances. The Secretary is sympathetic to this
request. While it is not feasible to
adopt a single civil rights assurance form at this
time, the Office for Civil Rights will work toward
that goal.

8. Private rights of action. Several comments
urged that the regulation incorporate provision
granting beneficiaries a private right of action
against recipients under section 504. To confer such

a right is beyond the authority of the executive
branch of Government. There is, however, case law
holding that such a right exists. Lloyd v. Regional
Transportation Authority, 548 F. 2d 1277 (7th Cir.
1977); see Hairston v. Drosick, Civil No. 75-0691
(S. D. W. Va., Jan. 14, 1976); Gurmankin v. Castanzo,
411 F. Supp. 982 (E. D. Pa. 1976); cf. Lau v. Nichols,
supra.

9. Remedial action. Where there has been a
finding of discrimination, Sec. 104.6 requires a
recipient to take remedial action to overcome the
effects of the discrimination. Actions that might be
required under paragraph (a)( 1) include provision of
services to persons previously discriminated against,
reinstatement of employees and development of a
remedial action plan. Should a recipient fail to take
required remedial action, the ultimate sanctions of
court action or termination of Federal financial
assistance may be imposed.
Paragraph (a)( 2) extends the responsibility for
taking remedial action to a recipient that exercises
control over a noncomplying recipient. Paragraph
(a)( 3) also makes clear that handicapped persons
who are not in the program at the time that remedial
action is required to be taken may also be the subject
of such remedial action. This paragraph has been
revised in response to comments in order to include
persons who would have been in the program if
discriminatory practices had not existed. Paragraphs
(a) (1), (2), and (3) have also been amended
in response to comments to make plain that, in
appropriate cases, remedial action might be required
to redress clear violations of the statute itself that
occurred before the effective date of this regulation.

10. Voluntary action. In Sec. 104.6( b), the term
``voluntary action'' has been substituted for the term
``affirmative action'' because the use of the latter
term led to some confusion. We believe the
term ``voluntary action'' more accurately reflects the
purpose of the paragraph. This provision allows
action, beyond that required by the regulation, to
overcome conditions that led to limited participation
by handicapped persons, whether or not the limited
participation was caused by any discriminatory
actions on the part of the recipient. Several
commenters urged that paragraphs (a) and (b) be
revised to require remedial action to overcome
effects of prior discriminatory practices regardless of
whether there has been an express finding of
discrimination. The self-evaluation requirement in
paragraph (c) accomplishes much the same purpose.

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11. Self-evaluation. Paragraph (c) requires
recipients to conduct a self-evaluation in order to
determine whether their policies or practices may
discriminate against handicapped persons and to
take steps to modify any discriminatory policies and
practices and their effects. The Department received
many comments approving of the addition to
paragraph (c) of a requirement that recipients seek
the assistance of handicapped persons in the
self-evaluation process. This paragraph has been
further amended to require consultation with
handicapped persons or organizations representing
them before recipients undertake the policy
modifications and remedial steps prescribed in
paragraphs (c) (ii) and (iii).
Paragraph (c)( 2), which sets forth the
recordkeeping requirements concerning
self-evaluation, now applies only to recipients with
fifteen or more employees. This change was made as
part of an effort to reduce unnecessary or counter-productive
administrative obligations on small
recipients. For those recipients required to keep
records, the requirements have been made more
specific; records must include a list of persons
consulted and a description of areas examined,
problems identified, and corrective steps taken.
Moreover, the records must be made available for
public inspection.

12. Grievance procedure. Section 104.7 requires
recipients with fifteen or more employees to
designate an individual responsible for coordinating
its compliance efforts and to adopt a grievance
procedure. Two changes were made in the section in
response to comment. A general requirement that
appropriate due process procedures be followed has
been added. It was decided that the details of such
procedures could not at this time be specified
because of the varied nature of the persons and
entities who must establish the procedures and of
the programs to which they apply. A sentence was
also added to make clear that grievance procedures
are not required to be made available to unsuccess-ful
applicants for employment or to applicants for
admission to colleges and universities.
The regulation does not require that grievance
procedures be exhausted before recourse is sought
from the Department. However, the Secretary
believes that it is desirable and efficient in many
cases for complainants to seek resolution of their
complaints and disputes at the local level and
therefore encourages them to use available
grievance procedures.
A number of comments asked whether compli-

ance with this section or the notice requirements of
Sec. 104.8 could be coordinated with
comparable action required by the title IX
regulation. The Department encourages such efforts.

13. Notice. Section 104.8 (formerly Sec. 84.9) sets
forth requirements for dissemination of statements
of nondicrimination policy by recipients.
It is important that both handicapped persons
and the public at large be aware of the obligations of
recipients under section 504. Both the Department
and recipients have responsibilities in this regard.
Indeed the Department intends to undertake a major
public information effort to inform persons of their
rights under section 504 and this regulation. In Sec.
104.8 the Department has sought to impose a clear
obligation on major recipients to notify beneficiaries
and employees of the requirements of section 504,
without dictating the precise way in which this
notice must be given. At the same time, we have
avoided imposing requirements on small recipients
(those with fewer than fifteen employees) that
would create unnecessary and counterproductive
paper work burdens on them and unduly stretch the
enforcement resources of the Department.
Section 104.8( a), as simplified, requires recipients
with fifteen or more employees to take appropriate
steps to notify beneficiaries and employees of the
recipient's obligations under section 504. The last
sentence of Sec. 104.8( a) has been revised to list
possible, rather than required, means of notification.
Section 104.8( b) requires recipients to include a
notification of their policy of nondiscrimination in
recruitment and other general information materials.
In response to a number of comments, Sec. 104.8
has been revised to delete the requirements of
publication in local newspapers, which has proved
to be both troublesome and ineffective. Several
commenters suggested that notification on separate
forms be allowed until present stocks of publications
and forms are depleted. The final regulation
explicitly allows this method of compliance. The
separate form should, however, be included with
each significant publication or form that is
distributed.
Section 104 which prohibited the use of materials
that might give the impression that a recipient
excludes qualified handicapped persons from its
program, has been deleted. The Department is
convinced by the comments that this provision is
unnecessary and difficult to apply. The Department
encourages recipients, however, to include in their
recruitment and other general information materials
photographs of handicapped persons and ramps

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and other features of accessible buildings.
Under new Sec. 104.9 the Assistant Secretary may,
under certain circumstances, require recipients with
fewer than fifteen employees to comply with one or
more of these requirements. Thus, if experience
shows a need for imposing notice or other
requirements on particular recipients or classes of
small recipients, the Department is prepared to
expand the coverage of these sections.

14. Inconsistent State laws. Section 104.10( a)
states that compliance with the regulation is not
excused by State or local laws limiting the eligibility
of qualified handicapped persons to receive services
or to practice an occupation. The provision thus
applies only with respect to state or local laws that
unjustifiably differentiate on the basis of handicap.
Paragraph (b) further points out that the presence
of limited employment opportunities in a particular
profession, does not excuse a recipient from
complying with the regulation. Thus, a law school
could not deny admission to a blind applicant
because blind laywers may find it more difficult to
find jobs than do nonhandicapped lawyers.

Subpart B--Employment Practices
Subpart B prescribes requirements for nondiscrim-ination
in the employment practices of recipients of
Federal financial assistance administered by the
Department. This subpart is consistent with the
employment provisions of the Department's
regulation implementing title IX of the Education
Amendments of 1972 (34 CFR, part 106) and the
regulation of the Department of Labor under section
503 of the Rehabilitation Act, which requries certain
Federal contractors to take affirmative action in the
employment and advancement of qualified
handicapped persons. All recipients subject to title
IX are also subject to this regulation. In addition,
many recipients subject to this regulation receive
Federal procurement contracts in excess of $2,500
and are therefore also subject to section 503.

15. Discriminatory practices. Section 104.11 sets
forth general provisions with respect to discrimina-tion
in employment. A new paragraph
(a)( 2) has been added to clarify the employment
obligations of recipients that receive Federal funds
under Part B of the Education of the Handicapped
Act, as amended (EHA). Section 606 of the EHA
obligates elementary or secondary school systems
that receive EHA funds to take positive steps to
employ and advance in employment qualified

handicapped persons. This obligation is similar to
the nondiscrimination requirement of section 504
but requires recipients to take additional steps to
hire and promote handicapped persons. In enacting
section 606 Congress chose the words ``positive
steps'' instead of ``affirmative action'' advisedly
and did not intend section 606 to incorporate the
types of activities required under Executive Order
11246 (affirmative action on the basis of race, color,
sex, or national origin) or under sections 501 and 503
of the Rehabilitation Act of 1973.
Paragraph (b) of Sec. 104.11 sets forth the specific
aspects of employment covered by the regulation.
Paragraph (c) provides that inconsistent provisions
of collective bargaining agreements do not excuse
noncompliance.

16. Reasonable accommodation. The reasonable
accommodation requirement of Sec. 104.12
generated a substantial number of comments. The
Department remains convinced that its approach is
both fair and effective. Moreover, the Department of
Labor reports that it has experienced little difficulty
in administering the requirements of reasonable
accommodation. The provision therefore remains
basically unchanged from the proposed regulation.
Section 104.12 requires a recipient to make
reasonable accommodation to the known physical or
mental limitations of a handicapped applicant or
employee unless the recipient can demonstrate that
the accommodation would impose an undue
hardship on the operation of its program. Where a
handicapped person is not qualified to perform a
particular job, where reasonable accommodation
does not overcome the effects of a person's
handicap, or where reasonable accommodation
causes undue hardship to the employer, failure to
hire or promote the handicapped person will not be
considered discrimination.
Section 104.12( b) lists some of the actions that
constitute reasonable accommodation. The list is
neither all-inclusive nor meant to suggest that
employers must follow all of the actions listed.
Reasonable accommodation includes modification
of work schedules, including part-time employment,
and job restructuring. Job restructuring may entail
shifting nonessential duties to other employees. In
other cases, reasonable accommodation may include
physical modifications or relocation of particular
offices or jobs so that they are in facilities
or parts of facilities that are accessible to and usable
by handicapped persons. If such accommodations
would cause undue hardship to the employer, they
need not be made.

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Paragraph (c) of this section sets forth the factors
that the Office for Civil Rights will consider in
determining whether an accommodation necessary
to enable an applicant or employee to perform the
duties of a job would impose an undue hardship.
The weight given to each of these factors in making
the determination as to whether an accommodation
constitutes undue hardship will vary depending on
the facts of a particular situation. Thus, a small
day-care center might not be required to expend
more than a nominal sum, such as that necessary to
equip a telephone for use by a secretary with
impaired hearing, but a large school district might
be required to make available a teacher's aide to a
blind applicant for a teaching job. The reasonable
accommodation standard in Sec. 104.12 is similar to
the obligation imposed upon Federal contractors in
the regulation implementing section 503 of the
Rehabilitation Act of 1973, administered by the
Department of Labor. Although the wording of the
reasonable accommodation provisions of the two
regulations is not identical, the obligation that the
two regulations impose is the same, and the Federal
Government's policy in implementing the two
sections will be uniform. The Department adopted
the factors listed in paragraph (c) instead of the
``business necessity'' standard of the Labor
regulation because that term seemed inappropriate
to the nature of the programs operated by the
majority of institutions subject to this regulation,
e. g., public school systems, colleges and universities.
The factors listed in paragraph (c) are
intended to make the rationale underlying the
business necessity standard applicable to an
understandable by recipients of ED funds.

17. Tests and selection criteria. Revised Sec.
104.13( a) prohibits employers from using test or
other selection criteria that screen out or tend to
screen out handicapped persons unless the test or
criterion is shown to be job-related and alternative
tests or criteria that do not screen out or tend to
screen out as many handicapped persons are not
shown by the Assistant Secretary to be available.
This paragraph is an application of the principle
established under title VII of the Civil Rights Act of
1964 in Griggs v. Duke Power Company, 401 U. S.
424 (1971).
Under the proposed section, a statistical showing
of adverse impact on handicapped persons was
required to trigger an employer's obligation to show
that employment criteria and qualifications relating
to handicap were necessary. This requirement was
changed because the small number of handicapped

persons taking tests would make statistical
showings of ``disproportionate, adverse effect''
difficult and burdensome. Under the altered, more
workable provision, once it is shown that an
employment test substantially limits the opportuni-ties
of handicapped persons, the employer must
show the test to be job-related. A recipient is no
longer limited to using predictive validity studies as
the method for demonstrating that a test or other
selection criterion is in fact job-related.
Nor, in all cases, are predictive validity
studies sufficient to demonstrate that a test or
criterion is job-related. In addition, Sec. 104.13( a) has
been revised to place the burden on the Assistant
Secretary, rather than the recipient, to identify
alternate tests.
Section 104.13( b) requires that a recipient take into
account that some tests and criteria depend upon
sensory, manual, or speaking skills that may not
themselves be necessary to the job in question but
that may make the handicapped person unable to
pass the test. The recipient must select and
administer tests so as best to ensure that the test will
measure the handicapped person's ability to
perform on the job rather than the person's ability to
see, hear, speak, or perform manual tasks, except, of
course, where such skills are the factors that the test
purports to measure. For example, a person with a
speech impediment may be perfectly qualified for
jobs that do not or need not, with reasonable
accommodation, require ability to speak clearly. Yet,
if given an oral test, the person will be unable to
perform in a satisfactory manner. The test results
will not, therefore, predict job performance but
instead will reflect impaired speech.

18. Preemployment inquiries. Section 104.14,
concerning preemployment inquiries, generated a
large number of comments. Commenters represent-ing
handicapped persons strongly favored a ban on
preemployment inquiries on the ground that such
inquiries are often used to discriminate against
handicapped persons and are not necessary to serve
any legitimate interests of employers. Some
recipients, on the other hand, argued that
preemployment inquiries are necessary to determine
qualifications of the applicant, safety hazards caused
by a particular handicapping condition, and
accommodations that might be required.
The Secretary has concluded that a general
prohibition of preemployment inquiries is
appropriate. However, a sentence has been added to
paragraph (a) to make clear that an employer may
inquire into an applicant's ability to perform

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job-related tasks but may not ask if the person has a
handicap. For example, an employer may not ask on
an employment form if an applicant is visually
impaired but may ask if the person has a current
driver's license (if that is a necessary qualification for
the position in question). Similarly, employers may
make inquiries about an applicant's ability to
perform a job safely. Thus, an employer may not ask
if an applicant is an epileptic but may ask whether
the person can perform a particular job without
endangering other employees.
Section 104.14( b) allows preemployment inquiries
only if they are made in conjunction with required
remedial action to correct past discrimination, with
voluntary action to overcome past conditions that
have limited the participation of handicapped
persons, or with obligations under section 503 of the
Rehabilitation Act of 1973. In these instances,
paragraph (b) specifies certain safeguards that must
be followed by the employer.
Finally, the revised provision allows an employer
to condition offers of employment to handicapped
persons on the results of medical examinations, so
long as the examinations are administered to all
employees in a nondiscriminatory manner and the
results are treated on a confidential basis.

19. Specific acts of Discrimination. Sections
104.15 (recruitment), 104.16 (compensation), 104.17
(job classification and structure) and 104.18 (fringe
benefits) have been deleted from the regulation as
unnecessarily duplicative of Sec. 104.11 (discrimina-tion
prohibited). The deletion of these sections in no
way changes the substantive obligations of
employers subject to this regulation from those set
forth in the July 16 proposed regulation. These
deletions bring the regulation
closer in form to the Department of Labor's section
503 regulation.
A proposed section, concerning fringe benefits,
had allowed for differences in benefits or contribu-tions
between handicapped and nonhandicapped
persons in situations only where such differences
could be justified on an actuarial basis. Section
104.11 simply bars discrimination in providing
fringe benefits and does not address the
issue of actuarial differences. The Department
believes that currently available data and experience
do not demonstrate a basis for promulgating a
regulation specifically allowing for differences in
benefits or contributions.

Subpart C--Program Accessibility
In general, Subpart C prohibits the exclusion of
qualified handicapped persons from federally
assisted programs or activities because a recipient's
facilities are inaccessible or unusable.

20. Existing facilities. Section 104.22 maintains the
same standard for nondiscrimination in regard to
existing facilities as was included in the proposed
regulation. The section states that a recipients
program or activity, when viewed in its entirety,
must be readily accessible to and usable by
handicapped persons. Paragraphs (a) and (b) make
clear that a recipient is not required to make each of
its existing facilities accessible to handicapped
persons if its program as a whole is accessible.
Accessibility to the recipient's program or activity
may be achieved by a number of means, including
redesign of equipment, reassignment of classes or
other services to accessible buildings, and making
aides available to beneficiaries. In choosing among
methods of compliance, recipients are required to
give priority consideration to methods that will be
consistent with provision of services in the most
appropriate integrated setting. Structural changes in
existing facilities are required only where there is no
other feasible way to make the recipient's program
accessible.
Under Sec. 104.22, a university does not have to
make all of its existing classroom buildings
accessible to handicapped students if some of its
buildings are already accessible and if it is possible
to reschedule or relocate enough classes so as to
offer all required courses and a reasonable selection
of elective courses in accessible facilities. If sufficient
relocation of classes is not possible using existing
facilities, enough alterations to ensure program
accessibility are required. A university may not
exclude a handicapped student from a specifically
requested course offering because it is not offered in
an accessible location, but it need not make every
section of that course accessible.
Commenters representing several institutions of
higher education have suggested that it would be
appropriate for one postsecondary institution in a
geographical area to be made accessible to
handicapped persons and for other colleges and
universities in that area to participate in that school's
program, thereby developing an educational
consortium for the postsecondary education of
handicapped students. The Department believes that
such a consortium, when developed and applied
only to handicapped persons, would not constitute

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compliance with Sec. 104.22, but would discriminate
against qualified handicapped persons by restricting
their choice in selecting institutions of higher
education and would, therefore, be inconsistent with
the basic objectives of the statute.
Nothing in this regulation, however, should be
read as prohibiting institutions from forming
consortia for the benefit of all students. Thus, if three
colleges decide that it would be cost-efficient for one
college to offer biology, the second physics, and the
third chemistry to all students at the three colleges,
the arrangement would not violate section 504. On
the other hand, it would violate the regulation if the
same institutions set up a consortium under which
one college undertook to make its biology lab
accessible, another its physics lab, and a third
its chemistry lab, and under which
mobility-impaired handicapped students (but not
other students) were required to attend the
particular college that is accessible for the desired
courses.
Similarly, while a public school district need not
make each of its buildings completely accessible, it
may not make only one facility or part of a facility
accessible if the result is to segregate handicapped
students in a single setting.
All recipients that provide health, welfare, or
other social services may also comply with Sec.
104.22 by delivering services at alternate accessible
sites or making home visits. Thus, for example, a
pharmacist might arrange to make home deliveries
of drugs. Under revised Sec. 104.22( c), small
providers of health, welfare, and social services
(those with fewer than fifteen employees) may refer
a beneficiary to an accessible provider of the desired
service, but only if no means of meeting the program
accessibility requirement other than a significant
alteration in existing facilities is available. The
referring recipient has the responsibility of
determining that the other provider is in fact
accessible and willing to provide the service.
A recent change in the tax law may assist some
recipients in meeting their obligations under this
section. Under section 2122 of the Tax Reform Act of
1976, recipients that pay federal income tax are
eligible to claim a tax deduction of up to $25,000 for
architectural and transportation modifications made
to improve accessibility for handicapped persons.
See 42 FR 17870 (April 4, 1977), adopting 26 CFR
7.190.
Several commenters expressed concern about the
feasibility of compliance with the program
accessibility standard. The Secretary believes that
the standard is flexible enough to permit recipients

to devise ways to make their programs accessible
short of extremely expensive or impractical physical
changes in facilities. Accordingly, the section does
not allow for waivers. The Department is ready at all
times to provide technical assistance to recipients in
meeting their program accessibility responsibilities.
For this purpose, the Department is establishing a
special technical assistance unit. Recipients are
encouraged to call upon the unit staff for advice and
guidance both on structural modifications and on
other ways of meeting the program accessibility
requirement.
Paragraph (d) has been amended to require
recipients to make all nonstructural adjustments
necessary for meeting the program accessibility
standard within sixty days. Only where structural
changes in facilities are necessary will a recipient be
permitted up to three years to accomplish program
accessibility. It should be emphasized that the
three-year time period is not a waiting period and
that all changes must be accomplished as expedi-tiously
as possible. Further, it is the Department's
belief, after consultation with experts in the field,
that outside ramps to buildings can be constructed
quickly and at relatively low cost. Therefore, it will
be expected that such structural additions will be
made promptly to comply with Sec. 104.22( d).
The regulation continues to provide, as did the
proposed version, that a recipient planning to
achieve program accessibility by making structural
changes must develop a transition plan for such
changes within six months of the effective date of
the regulation. A number of commenters suggested
extending that period to one year. The secretary
believes that such an extension is unnecessary and
unwise. Planning for any necessary structural
changes should be undertaken promptly to ensure
that they can be completed within the three-year
period. The elements of the transition plan as
required by the regulation remain virtually
unchanged from the proposal but Sec. 104.22( d) now
includes a requirement that the recipient make the
plan available for public inspection.
Several commenters expressed concern that the
program accessibility standard would result in the
segregation of handicapped persons in educational
institutions. The regulation will not be applied to
permit such a result. See Sec. 104.4( c)( 2)( iv),
prohibiting unnecessarily separate treatment; Sec.
104.35, requiring that students in elementary
and secondary schools be educated in the most
integrated setting appropriate to their needs; and
new Sec. 104.43( d), applying the same standard to
postsecondary education.

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We have received some comments from
organizations of handicapped persons on the subject
of requiring, over an extended period of time, a
barrier-free environment--that is, requiring the
removal of all architectural barriers in existing
facilities. The Department has considered these
comments but has decided to take no further action
at this time concerning these suggestions, believing
that such action should only be considered in light
of experience in implementing the program
accessibility standard.

21. New construction. Section 104.23 requires that
all new facilities, as well as alterations that could
affect access to and use of existing facilities, be
designed and constructed in a manner so as to
make the facility accessible to and usable by
handicapped persons. Section 104.23( a) has been
amended so that it applies to each newly construct-ed
facility if the construction was commenced after
the effective date of the regulation. The words ``if
construction has commenced'' will be considered to
mean ``if groundbreaking has taken place. '' Thus, a
recipient will not be required to alter the design of a
facility that has progressed beyond groundbreaking
prior to the effective date of the regulation.
Paragraph (b) requires certain alterations to
conform to the requirement of physical accessibility
in paragraph (a). If an alteration is undertaken to a
portion of a building the accessibility of which could
be improved by the manner in which the alteration
is carried out, the alteration must be made in that
manner. Thus, if a doorway or wall is being altered,
the door or other wall opening must be made wide
enough to accommodate wheelchairs. On the other
hand, if the alteration consists of altering ceilings,
the provisions of this section are not applicable
because this alteration cannot be done in a way that
affects the accessibility of that portion of the
building. The phrase ``to the maximum extent
feasible'' has been added to allow for the occasional
case in which the nature of an existing facility is
such as to make it impractical or prohibitively
expensive to renovate the building in a manner that
results in its being entirely barrier-free. In all such
cases, however, the alteration should provide the
maximum amount of physical accessibility feasible.
Section 104.23( d) of the proposed regulation,
providing for a limited deferral of action concerning
facilities that are subject to section 502 as well as
section 504 of the Act, has been deleted. The
Secretary believes that the provision is unnecessary
and inappropriate to this regulation. The Depart-ment
will, however, seek to coordinate

enforcement activities under this regulation with
those of the Architectural and Transportation
Barriers Compliance Board.

Subpart D--Preschool, Elementary, and
Secondary Education

Subpart D sets forth requirements for nondiscrim-ination
in preschool, elementary, secondary, and
adult education programs and activities, including
secondary vocational education programs. In this
context, the term ``adult education'' refers only to
those educational programs and activities for adults
that are operated by elementary and secondary
schools.
The provisions of Subpart D apply to state and
local educational agencies. Although the subpart
applies, in general, to both public and private
education programs and activities that are federally
assisted, Secs. 104.32 and 104.33 apply only to public
programs and Sec. 104.39 applies only to private
programs; Secs. 104.35 and 104.36 apply both to
public programs and to those private programs that
include special services for handicapped students.
Subpart B generally conforms to the standards
established for the education of handicapped
persons in Mills v. Board of Education of the
District of Columbia, 348 F. Supp. 866 (D. D. C. 1972),
Pennsylvania Association for Retarded Children v.
Commonwealth of Pennsylvania, 344 F. Supp. 1257
(E. D. 1971), 343 F. Supp. 279 (E. D. Pa. 1972), and
Lebanks v. Spears, 60, F. R. D. 135 (E. D. La. 1973), as
well as in the Education of the Handicapped Act, as
amended by Pub. L. 94-142 (the EHA).
The basic requirements common to those cases, to
the EHA, and to this regulation are (1) that
handicapped persons, regardless of the nature or
severity of their handicap, be provided a free
appropriate public education, (2) that handicapped
students be educated with nonhandicapped
students to the maximum extent appropriate to their
needs, (3) that educational agencies undertake to
identify and locate all unserved handicapped
children, (4) that evaluation procedures be improved
in order to avoid the inappropriate education that
results from the misclassification of students, and (5)
that procedural safeguard be established to enable
parents and guardians to influence decisions
regarding the evaluation and placement of their
children. These requirements are designed to ensure
that no handicapped child is excluded from school
on the basis of handicap and, if a recipient
demonstrates that placement in a regular education-al
setting cannot be achieved satisfactorily, that the

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student is provided with adequate alternative
services suited to the student's needs without
additional cost to the student's parents or guardian.
Thus, a recipient that operates a public school
system must either educate handicapped children in
its regular program or provide such children with
an appropriate alternative education at public
expense.
It is not the intention of the Department, except in
extraordinary circumstances, to review the result of
individual placement and other educational
decisions, so long as the school district complies
with the ``process'' requirements of this subpart
(concerning identification and location, evaluation,
and due process procedures). However, the
Department will place a high priority on investigat-ing
cases which may involve exclusion of a child
from the education system or a pattern or practice of
discriminatory placements or education.

22. Location and notification. Section 104.32
requires public schools to take steps annually to
identify and locate handicapped children who are
not receiving an education and to publicize to
handicapped children and their parents the rights
and duties established by section 504 and this
regulation. This section has been shortened
without substantive change.

23. Free appropriate public education. Under Sec.
104.33( a), a recipient is responsible for providing a
free appropriate public education to each qualified
handicapped person who is in the recipient's
jurisdiction. The word ``in'' encompasses the
concepts of both domicile and actual residence. If a
recipient places a child in a program other than its
own, it remains financially responsible for the child,
whether or not the other program is operated by
another recipient or educational agency. Moreover, a
recipient may not place a child in a program that is
inappropriate or that otherwise violates the
requirements of Subpart D. And in no case may a
recipient refuse to provide services to a handicapped
child in its jurisdiction because of another person's
or entity's failure to assume financial responsibility.
Section 104.33( b) concerns the provision of
appropriate educational services to handicapped
children. To be appropriate, such services must
be designed to meet handicapped children's
individual educational needs to the same extent that
those of nonhandicapped children are met. An
appropriate education could consist of education in
regular classes, education in regular classes with the
use of supplementary services, or special education

and related services. Special education may include
specially designed instruction in classrooms, at
home, or in private or public institutions and may be
accompanied by such related services as develop-mental,
corrective, and other supportive services
(including psychological, counseling, and medical
diagnostic services). The placement of the child must
however, be consistent with the requirements of Sec.
104.34 and be suited to his or her educational needs.
The quality of the educational services provided
to handicapped students must equal that of the
services provided to nonhandicapped students;
thus, handicapped student's teachers must be
trained in the instruction of persons with the
handicap in question and appropriate materials and
equipment must be available. The Department is
aware that the supply of adequately trained teachers
may, at least at the outset of the imposition of this
requirement, be insufficient to meet the demand
of all recipients. This factor will be considered in
determining the appropriateness of the remedy for
noncompliance with this section. A new Sec.
104.33( b)( 2) has been added, which allows this
requirement to be met through the full implementa-tion
of an individualized education program
developed in accordance with the standards of the
EHA.
Paragraph (c) of Sec. 104.33 sets forth the specific
financial obligations of a recipient. If a recipient does
not itself provide handicapped persons with the
requisite services, it must assume the cost of any
alternate placement. If, however, a recipient offers
adequate services and if alternate placement is
chosen by a student's parent or guardian, the
recipient need not assume the cost of the outside
services. (If the parent or guardian believes that his
or her child cannot be suitably educated in the
recipient's program, he or she may make use of the
procedures established in Sec. 104.36.) Under this
paragraph, a recipient's obligation extends beyond
the provision of tuition payments in the case of
placement outside the regular program. Adequate
transportation must also be provided. Recipients
must also pay for psychological services and those
medical services necessary for diagnostic and
evaluative purposes.
If the recipient places a student, because of his or
her handicap, in a program that necessitates his or
her being away from home, the payments must also
cover room and board and nonmedical care
(including custodial and supervisory care). When
residential care is necessitated not by the student's
handicap but by factors such as the student's home
conditions, the recipient is not required to pay the

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cost of room and board.
Two new sentences have been added to paragraph
(c)( 1) to make clear that a recipient's financial
obligations need not be met solely through its own
funds. Recipients may rely on funds from any public
or private source including insurers and similar
third parties.
The EHA requires a free appropriate education to
be provided to handicapped children ``no later than
September 1, 1978, '' but section 504 contains no
authority for delaying enforcement. To resolve this
problem, a new paragraph (d) has been added to
Sec. 104.33. Section 104.33( d) requires recipients to
achieve full compliance with the free appropriate
public education requirements of Sec. 104.33 as
expeditiously as possible, but in no event later than
September 1, 1978. The provision also makes clear
that, as of the effective date of this regulation, no
recipient may exclude a qualified handicapped child
from its educational program. This provision against
exclusion is consistent with the order of providing
services set forth in section 612( 3) of the EHA, which
places the highest priority on providing services to
handicapped children who are not receiving an
education.

24. Educational setting. Section 104.34 prescribes
standards for educating handicapped persons with
nonhandicapped persons to the maximum extent
appropriate to the needs of the handicapped person
in question. A handicapped student may be
removed from the regular educational setting
only where the recipient can show that the needs of
the student would, on balance, be served by
placement in another setting.
Although under Sec. 104.34, the needs of the
handicapped person are determinative as to proper
placement, it should be stressed that, where a
handicapped student is so disruptive in a regular
classroom that the education of other students is
significantly impaired, the needs of the handicapped
child cannot be met in that environment. Therefore,
regular placement would not be appropriate to his
or her needs and would not be required by Sec.
104.34.
Among the factors to be considered in placing a
child is the need to place the child as close to home
as possible. A new sentence has been added to
paragraph (a) requiring recipients to take this factor
into account. As pointed out in several comments,
the parents' right under Sec. 104.36 to challenge the
placement of their child extends not only to
placement in special classes or separate schools but
also to placement in a distant school and, in

particular, to residential placement. An equally
appropriate educational program may exist closer
to home; this issue may be raised by the parent or
guardian under Secs. 104.34 and 104.36.
New paragraph (b) specified that handicapped
children must also be provided nonacademic
services in as integrated a setting as possible.
This requirement is especially important for children
whose educational needs necessitate their being
solely with other handicapped children during most
of each day. To the maximum extent appropriate,
children in residential settings are also to be
provided opportunities for participation with other
children.
Section 104.34( c) requires that any facilities that
are identifiable as being for handicapped students
be comparable in quality to other facilities of the
recipient. A number of comments objected to this
section on the basis that it encourages the creation
and maintenance of such facilities. This is not the
intent of the provision. A separate facility violates
section 504 unless it is indeed necessary to the
provision of an appropriate education to certain
handicapped students. In those instances in which
such facilities are necessary (as might be the case, for
example, for severely retarded persons), this
provision requires that the educational services
provided be comparable to those provided in the
facilities of the recipient that are not identifiable as
being for handicapped persons.

25. Evaluation and placement. Because the failure
to provide handicapped persons with an appropri-ate
education is so frequently the result of misclas-sification
or misplacement, Sec. 104.33( b)( 1) makes
compliance with its provisions contingent upon
adherence to certain procedures designed to ensure
appropriate classification and placement. These
procedures, delineated in Secs. 104.35 and 104.36,
are concerned with testing and other evaluation
methods and with procedural due process rights.
Section 104.35( a) requires that an individual
evaluation be conducted before any action is taken
with respect either to the initial placement of a
handicapped child in a regular or special education
program or to any subsequent significant change in
that placement. Thus, a full reevaluation is not
required every time an adjustment in placement is
made. ``Any action'' includes denials of placement.
Paragraphs (b) and (c) of Sec. 104.35 establishes
procedures designed to ensure that children are not
misclassified, unnecessarily labeled as being
handicapped, or incorrectly placed because of
inappropriate selection, administration, or

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interpretation of evaluation materials. This problem
has been extensively documented in ``Issues in
the Classification of Children, '' a report by the
Project on Classification of Exceptional Children, in
which the HEW Interagency Task Force participat-ed.
The provisions of these paragraphs are aimed
primarily at abuses in the placement process that
result from misuse of, or undue or misplaced
reliance on, standardized scholastic aptitude
tests.
Paragraph (b) has been shortened but not
substantively changed. The requirement in former
subparagraph (1) that recipients provide and
administer evaluation materials in the native
language of the student has been deleted as
unnecessary, since the same requirement already
exists under title VI and is more appropriately
covered under that statute. Paragraphs (1) and (2)
are, in general, intended to prevent misinterpreta-tion
and similar misuse of test scores and, in
particular, to avoid undue reliance on general
intelligence tests. Subparagraph (3) requires a
recipient to administer tests to a student with
impaired sensory, manual, or speaking skills in
whatever manner is necessary to avoid distortion of
the test results by the impairment. Former
subparagraph (4) has been deleted as unnecessarily
repetitive of the other provisions of this paragraph.
Paragraph (c) requires a recipient to draw upon a
variety of sources in the evaluation process so that
the possibility of error in classification is minimized.
In particular, it requires that all significant factors
relating to the learning process, including adaptive
behavior, be considered. (Adaptive behavior is the
effectiveness with which the individual meets the
standards of personal independence and social
responsibility expected of his or her age and cultural
group.) Information from all sources must be
documented and considered by a group of persons,
and the procedure must ensure that the child is
placed in the most integrated setting appropriate.
The proposed regulation would have required a
complete individual reevaluation of the student each
year. The Department has concluded that it is
inappropriate in the section 504 regulation to require
full reevaluations on such a rigid schedule.
Accordingly, Sec. 104.35( c) requires periodic
reevaluations and specifies that reevaluations in
accordance with the EHA will constitute compli-ance.
The proposed regulation implementing the
EHA allows reevaluation at three-year intervals
except under certain specified circumstances.
Under Sec. 104.36, a recipient must establish a
system of due process procedures to be afforded to

parents or guardians before the recipient takes any
action regarding the identification, evaluation, or
educational placement of a person who, because of
handicap, needs or is believed to need special
education or related services. This section has
been revised. Because the due process procedures of
the EHA, incorporated by reference in the proposed
section 504 regulation, are inappropriate for some
recipients not subject to that Act, the section
now specifies minimum necessary procedures:
notice, a right to inspect records, an impartial
hearing with a right to representation by counsel,
and a review procedure. The EHA procedures
remain one means of meeting the regulation's due
process requirements, however, and are recom-mended
to recipients as a model.

26. Nonacademic services. Section 104.37 requires
a recipient to provide nonacademic and extracurric-ular
services and activities in such manner as is
necessary to afford handicapped students an equal
opportunity for participation. Because these services
and activities are part of a recipient's education
program, they must, in accordance with the
provisions of Sec. 104.34, be provided in the most
integrated setting appropriate.
Revised paragraph (c)( 2) does permit separation
or differentiation with respect to the provision of
physical education and athletics activities, but only
if qualified handicapped students are also allowed
the opportunity to compete for regular teams or
participate in regular activities. Most handicapped
students are able to participate in one or more
regular physical education and athletics activities.
For example, a student in a wheelchair can
participate in regular archery course, as can a deaf
student in a wrestling course.
Finally, the one-year transition period provided in
a proposed section was deleted in response to the
almost unanimous objection of commenters to that
provision.

27. Preschool and adult education. Section 104.38
prohibits discrimination on the basis of handicap in
preschool and adult education programs. Former
paragraph (b), which emphasized that compensato-ry
programs for disadvantaged children are subject
to section 504, has been deleted as unnecessary,
since it is comprehended by paragraph (a).

28. Private education. Section 104.39 sets forth the
requirements applicable to recipients that operate
private education programs and activities. The
obligations of these recipients have been changed in

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two significant respects: first, private schools are
subject to the evaluation and due process provisions
of the subpart only if they operate special education
programs; second, under Sec. 104.39( b), they may
charge more for providing services to handicapped
students than to nonhandicapped students to the
extent that additional charges can be justified by
increased costs.
Paragraph (a) of Sec. 104.39 is intended to make
clear that recipients that operate private education
programs and activities are not required to provide
an appropriate education to handicapped students
with special educational needs if the recipient does
not offer programs designed to meet those needs.
Thus, a private school that has no program for
mentally retarded persons is neither required to
admit such a person into its program nor to arrange
or pay for the provision of the person's education in
another program. A private recipient without a
special program for blind students, however, would
not be permitted to exclude, on the basis of
blindness, a blind applicant who is able to
participate in the regular program with minor
adjustments in the manner in which the program is
normally offered.

Subpart E--Postsecondary Education
Subpart E prescribes requirements for nondiscrim-ination
in recruitment, admission, and treatment of
students in postsecondary education programs and
activities, including vocational education.

29. Admission and recruitment. In addition to a
general prohibition of discrimination on the basis of
handicap in Sec. 104.42( a), the regulation delineates,
in Sec. 104.42( b), specific prohibitions concerning the
establishment of limitations on admission of
handicapped students, the use of tests or selection
criteria, and preadmission inquiry. Several changes
have been made in this provision.
Section 104.42( b) provides that postsecondary
educational institutions may not use any test or
criterion for admission that has a disproportionate,
adverse effect on handicapped persons unless it has
been validated as a predictor of academic success
and alternate tests or criteria with a less dispropor-tionate,
adverse effect are shown by the Department
to be available. There are two significant changes in
this approach from the July 16 proposed regulation.
First, many commenters expressed concern that
Sec. 104.42( b)( 2)( ii) could be interpreted to require a
``global search'' for alternate tests that do not have a
disproportionate, adverse impact on handicapped

persons. This was not the intent of the provision
and, therefore, it has been amended to place the
burden on the Assistant Secretary for Civil Rights,
rather than on the recipient, to identify alternate
tests.
Second, a new paragraph (d), concerning validity
studies, has been added. Under the proposed
regulation, overall success in an education program,
not just first-year grades, was the criterion against
which admissions tests were to be validated. This
approach has been changed to reflect the comment
of professional testing services that use of first year
grades would be less disruptive of present practice
and that periodic validity studies against overall
success in the education program would be
sufficient check on the reliability of first-year grades.
Section 104.42( b)( 3) also requires a recipient to
assure itself that admissions tests are selected and
administered to applicants with impaired sensory,
manual, or speaking skills in such manner as is
necessary to avoid unfair distortion of test results.
Methods have been developed for testing the
aptitude and achievement of persons who are
not able to take written tests or even to make the
marks required for mechanically scored objective
tests; in addition, methods for testing persons with
visual or hearing impairments are available. A
recipient, under this paragraph, must assure itself
that such methods are used with respect to the
selection and administration of any admissions tests
that it uses.
Section 104.42( b)( 3)( iii) has been amended to
require that admissions tests be administered in
facilities that, on the whole, are accessible. In this
context, ``on the whole'' means that not all of the
facilities need be accessibile so long as a sufficient
number of facilities are available to handicapped
persons.
Revised Sec. 104.42( b)( 4) generally prohibits
preadmission inquiries as to whether an applicant
has a handicap. The considerations that led to this
revision are similar to those underlying the
comparable revision of Sec. 104.14 on
preemployment inquiries. The regulation does,
however, allow inquiries to be made, after
admission but before enrollment, as to handicaps
that may require accommodation.
New paragraph (c) parallels the section on
preemployment inquiries and allows postsecondary
institutions to inquire about applicants' handicaps
before admission, subject to certain safeguards, if the
purpose of the inquiry is to take remedial action to
correct past discrimination or to take voluntary
action to overcome the limited participation of

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handicapped persons in postsecondary educational
institutions.
Proposed Sec. 104.42( c), which would have
allowed different admissions criteria in certain cases
for handicapped persons, was widely misinterpret-ed
in comments from both handicapped persons and
recipients. We have concluded that the section is
unnecessary, and it has been deleted.

30. Treatment of students. Section 104.43 contains
general provisions prohibiting the discriminatory
treatment of qualified handicapped applicants.
Paragraph (b) requires recipients to ensure that
equal opportunities are provided to its handicapped
students in education programs and activities that
are not operated by the recipient. The recipient must
be satisfied that the outside education program or
activity as a whole is nondiscriminatory. For
example, a college must ensure that discrimination
on the basis of handicap does not occur in
connection with teaching assignments of student
teachers in elementary or secondary schools not
operated by the college. Under the ``as a whole''
wording, the college could continue to use
elementary or secondary school systems that
discriminate if, and only if, the college's student
teaching program, when viewed in its entirety,
offered handicapped student teachers the same
range and quality of choice in student teaching
assignments afforded nonhandicapped students.
Paragraph (c) of this section prohibits a recipient
from excluding qualified handicapped students
from any course, course of study, or other part of its
education program or activity. This paragraph is
designed to eliminate the practice of excluding
handicapped persons from specific courses and from
areas of concentration because of factors such
as ambulatory difficulties of the student or
assumptions by the recipient that no job would be
available in the area in question for a person with
that handicap.
New paragraph (d) requires postsecondary
institutions to operate their programs and activities
so that handicapped students are provided services
in the most integrated setting appropriate. Thus, if a
college had several elementary physics classes and
had moved one such class to the first floor of the
science building to accommodate students in
wheelchairs, it would be a violation of this
paragraph for the college to concentrate handi-capped
students with no mobility impairments in
the same class.

31. Academic adjustments. Paragraph (a) of Sec.
104.44 requires that a recipient make certain
adjustments to academic requirements and
practices that discriminate or have the effect of
discriminating on the basis of handicap. This
requirement, like its predecessor in the proposed
regulation, does not obligate an institution to waive
course or other academic requirements. But such
institutions must accommodate those requirements
to the needs of individual handicapped students.
For example, an institution might permit an
otherwise qualified handicapped student who is
deaf to substitute an art appreciation or music
history course for a required course in music
appreciation or could modify the manner in which
the music appreciation course is conducted for the
deaf student. It shoud be stressed that academic
requirements that can be demonstrated by the
recipient to be essential to its program of instruction
or to particular degrees need not be changed.
Paragraph (b) provides that postsecondary
institutions may not impose rules that have the
effect of limiting the participation of handicapped
students in the education program. Such rules
include prohibition of tape recorders or braillers in
classrooms and dog guides in campus buildings.
Several recipients expressed concern about allowing
students to tape record lectures because the
professor may later want to copyright the lectures.
This problem may be solved by requiring students
to sign agreements that they will not release the
tape recording or transcription or otherwise hinder
the professor's ability to obtain a copyright.
Paragraph (c) of this section, concerning the
administration of course examinations to students
with impaired sensory, manual, or speaking skills,
parallels the regulation's provisions on admissions
testing (Sec. 104.42( b)) and will be similarly
interpreted.
Under Sec. 104.44( d), a recipient must ensure that
no handicapped student is subject to discrimination
in the recipient's program because of the absence of
necessary auxiliary educational aids. Colleges and
universities expressed concern about the costs of
compliance with this provision.
The Department emphasizes that recipients can
usually meet this obligation by assisting students in
using existing resources for auxiliary aids such as
state vocational rehabilitation agencies and
private charitable organizations. Indeed, the
Department anticipates that the bulk of auxiliary
aids will be paid for by state and private agencies,
not by colleges or universities. In those circumstanc-es
where the recipient institution must provide the

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educational auxiliary aid, the institution has
flexibility in choosing the methods by which the
aids will be supplied. For example, some universi-ties
have used students to work with the institution's
handicapped students. Other institutions have used
existing private agencies that tape texts for
handicapped students free of charge in order to
reduce the number of readers needed for visually
impaired students.
As long as no handicapped person is excluded
from a program because of the lack of an appropri-ate
aid, the recipient need not have all such
aids on hand at all times. Thus, readers need not be
available in the recipient's library at all times so long
as the schedule of times when a reader is available is
established, is adhered to, and is sufficient. Of
course, recipients are not required to maintain a
complete braille library.

32. Housing. Section 104.45( a) requires
postsecondary institutions to provide housing to
handicapped students at the same cost as they
provide it to other students and in a convenient,
accessible, and comparable manner. Commenters,
particularly blind persons pointed out that some
handicapped persons can live in any college housing
and need not wait to the end of the transition period
in subpart C to be offered the same variety and
scope of housing accommodations given to
nonhandicapped persons. The Department concurs
with this position and will interpret this section
accordingly.
A number of colleges and universities reacted
negatively to paragraph (b) of this section. It
provides that, if a recipient assists in making
off-campus housing available to its students, it
should develop and implement procedures to assure
itself that off-campus housing, as a whole, is
available to handicapped students. Since
postsecondary institutions are presently required to
assure themselves that off-campus housing is
provided in a manner that does not discriminate on
the basis of sex (Sec. 106.32 of the title IX regulation),
they may use the procedures developed under title
IX in order to comply with Sec. 104.45( b). It should
be emphasized that not every off-campus
accommodation need be made accessible to
handicapped persons.

33. Health and insurance. A proposed section,
providing that recipients may not discriminate on
the basis of handicap in the provision of health
related services, has been deleted as duplicative of
the general provisions of Sec. 104.43. This deletion

represents no change in the obligation of recipients
to provide nondiscriminatory health and insurance
plans. The Department will continue to require that
nondiscriminatory health services be provided to
handicapped students. Recipients are not required,
however, to provide specialized services and aids to
handicapped persons in health programs. If, for
example, a college infirmary treats only simple
disorders such as cuts, bruises, and colds, its
obligation to handicapped persons is to treat such
disorders for them.

34. Financial assistance. Section 104.46( a),
prohibiting discrimination in providing financial
assistance, remains substantively the same. It
provides that recipients may not provide less
assistance to or limit the eligibility of qualified
handicapped persons for such assistance, whether
the assistance is provided directly by the recipient
or by another entity through the recipient's
sponsorship. Awards that are made under wills,
trusts, or similar legal instruments in a discriminato-ry
manner are permissible, but only if the overall
effect of the recipient's provision of financial
assistance is not discriminatory on the basis of
handicap.
It will not be considered discriminatory to deny,
on the basis of handicap, an athletic scholarship to a
handicapped person if the handicap renders the
person unable to qualify for the award. For example,
a student who has a neurological disorder might be
denied a varsity football scholarship on the basis of
his inability to play football, but a deaf person could
not, on the basis of handicap, be denied a scholar-ship
for the school's diving team. The deaf person
could, however, be denied a scholarship on the basis
of comparative diving ability.
Commenters on Sec. 104.46( b), which applies to
assistance in obtaining outside employment for
students, expressed similar concerns tothose raised
under Sec. 104.43( b), concerning cooperative
programs. This paragraph has been changed in the
same manner as Sec. 104.43( b) to include the ``as a
whole'' concept and will be interpreted in the same
manner as Sec. 104.43( b).

35. Nonacademic services. Section 104.47
establishes nondiscrimination standards for physical
education and athletics counseling and placement
services, and social organizations. This section sets
the same standards as does Sec. 104.38 of subpart D,
discussed above, and will be interpreted in a similar
fashion.

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Subpart F--Health, Welfare, and Social
Services

Subpart F applies to recipients that operate health,
welfare, and social service programs. The Depart-ment
received fewer comments on this
subpart than on others.
Although many commented that subpart F lacked
specificity, these commenters provided neither
concrete suggestions nor additions. Nevertheless,
some changes have been made, pursuant to
comment, to clarify the obligations of recipients in
specific areas. In addition, in an effort to reduce
duplication in the regulation, the section governing
recipients providing health services has been
consolidated with the section regulating providers
of welfare and social services. Since the separate
provisions that appeared in the proposed regulation
were almost identical, no substantive change should
be inferred from their consolidation.
Several commenters asked whether subpart F
applies to vocational rehabilitation agencies whose
purpose is to assist in the rehabilitation of
handicapped persons. To the extent that such
agencies receive financial assistance from the
Department, they are covered by subpart F
and all other relevant subparts of the regulation.
Nothing in this regulation, however, precludes such
agencies from servicing only handicapped persons.
Indeed, Sec. 104.4( c) permits recipients to offer
services or benefits that are limited by federal law to
handicapped persons or classes of handicapped
persons.
Many comments suggested requiring state social
service agencies to take an active role in the
enforcement of section 504 with regard to local
social service providers. The Department believes
that the possibility for federal-state cooperation in
the administration and enforcement of section 504
warrants further consideration.
A number of comments also discussed whether
section 504 should be read to require payment of
compensation to institutionalized handicapped
patients who perform services for the institution in
which they reside. The Department of Labor has
recently issued a proposed regulation under the Fair
Labor Standards Act (FLSA) that covers the question
of compensation for institutionalized persons. 42 FR
15224 (March 18, 1977). This Department will seek
information and comment from the Department of
Labor concerning that agency's experience
administering the FLSA regulation.

36. Health, welfare, and other social service
providers. Section 104.52( a) has been expanded in
several respects. The addition of new paragraph
(a)( 2) is intended to make clear the basic require-ment
of equal opportunity to receive benefits or
services in the health, welfare, and social service
areas. The paragraph parallels Secs. 104.4( b)( ii) and
104.43( b). New paragaph (a)( 3) requires the
provision of effective benefits or services, as defined
in Sec. 104.4( b)( 2) (i. e., benefits or services which
``afford handicapped persons equal opportunity to
obtain the same result (or) to gain the same benefit *
* *'').
Section 104.52( a) also includes provisions
concerning the limitation of benefits or services to
handicapped persons and the subjection of
handicapped persons to different eligibility
standards. One common misconception about the
regulation is that it would require specialized
hospitals and other health care providers to treat all
handicapped persons. The regulation makes no such
requirement. Thus, a burn treatment center need not
provide other types of medical treatment to
handicapped persons unless it provides such
medical services to nonhandicapped persons. It
could not, however, refuse to treat the burns
of a deaf person because of his or her deafness.
Commenters had raised the question of whether
the prohibition against different standards of
eligibility might preclude recipients
from providing special services to handicapped
persons or classes of handicapped persons. The
regulation will not be so interpreted, and the
specific section in question has been eliminated.
Section 104.4( c) makes clear that special programs
for handicapped persons are permitted.
A new paragraph (a)( 5) concerning the provision
of different or separate services or benefits has been
added. This provision prohibits such treatment
unless necessary to provide qualified handicapped
persons with benefits and services that are as
effective as those provided to others.
Section 104.52( b) has been amended to cover
written material concerning waivers of rights or
consent to treatment as well as general notices
concerning health benefits or services. The section
requires the recipient to ensure that qualified
handicapped persons are not denied effective notice
because of their handicap. For example, recipients
could use several different types of notice in order to
reach persons with impaired vision or hearing, such
as brailled messages, radio spots, and tacticle
devices on cards or envelopes to inform blind
persons of the need to call the recipient for further

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information.
Section 104.52( c) is a new section requiring
recipient hospitals to establish a procedure for
effective communication with persons with
impaired hearing for the purpose of providing
emergency health care. Although it would be
appropriate for a hospital to fulfill its responsibilities
under this section by having a full-time interpreter
for the deaf on staff, there may be other means of
accomplishing the desired result of assuring that
some means of communication is immediately
available for deaf persons needing emergency
treatment.
Section 104.52( c), also a new provision, requires
recipients with fifteen or more employees to provide
appropriate auxiliary aids for persons with impaired
sensory, manual, or speaking skills. Further, the
Assistant Secretary may require a small provider to
furnish auxiliary aids where the provision of aids
would not adversely affect the ability of the recipient
to provide its health benefits or service.

37. Treatment of Drug Addicts and Alcoholics.
Section 104.53 is a new section that prohibits
discrimination in the treatment and admission
of drug and alcohol addicts to hospitals and
outpatient facilities. Section 104.53 prohibits
discrimination against drug abusers by operators of
outpatient facilities, despite the fact that section 407
pertains only to hospitals, because of the broader
application of section 504. This provision does not
mean that all hospitals and outpatient facilities must
treat drug addiction and alcoholism. It simply
means, for example, that a cancer clinic may not
refuse to treat cancer patients simply because they
are also alcoholics.

38. Education of institutionalized persons. The
regulation retains Sec. 104.54 of the proposed
regulation that requires that an appropriate
education be provided to qualified handicapped
persons who are confined to residential institutions
or day care centers.

Subpart G--Procedures
In Sec. 104.61, the Secretary has adopted the title
VI complaint and enforcement procedures for use in
implementing section 504 until such time as they are
superseded by the issuance of a consolidated
procedureal regulation applicable to all of the civil
rights statutes and executive orders administered by
the Department.

[45 FR 30936, May 9, 1980, as amended at 55 FR
52141, Dec. 19, 1990]

Appendix B to Part 104--Guidelines for Eliminating
Discrimination and Denial of Services on the Basis
of Race, Color, National Origin, Sex, and Handicap
in Vocational Education Programs

Editorial Note: For the text of these guidelines, see
34 CFR part 100, appendix B.

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