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.

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 1 of 34 Spring, 1998 1
1 Page 2 3
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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 2 of 34 Spring, 1998 2
2 Page 3 4
(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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 3 of 34 Spring, 1998 3
3 Page 4 5
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

504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 4 of 34 Spring, 1998 4
4 Page 5 6
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.

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 5 of 34 Spring, 1998 5
5 Page 6 7
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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 6 of 34 Spring, 1998 6
6 Page 7 8
(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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 7 of 34 Spring, 1998 7
7 Page 8 9
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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 8 of 34 Spring, 1998 8
8 Page 9 10
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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 9 of 34 Spring, 1998 9
9 Page 10 11
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.

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 10 of 34 Spring, 1998 10
10 Page 11 12
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,

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 11 of 34 Spring, 1998 11
11 Page 12 13
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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 12 of 34 Spring, 1998 12
12 Page 13 14
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.

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 13 of 34 Spring, 1998 13
13 Page 14 15
(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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 14 of 34 Spring, 1998 14
14 Page 15 16
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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 15 of 34 Spring, 1998 15
15 Page 16 17
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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 16 of 34 Spring, 1998 16
16 Page 17 18
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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 17 of 34 Spring, 1998 17
17 Page 18 19
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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 18 of 34 Spring, 1998 18
18 Page 19 20
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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 19 of 34 Spring, 1998 19
19 Page 20 21
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.

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 20 of 34 Spring, 1998 20
20 Page 21 22
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

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 21 of 34 Spring, 1998 21
21 Page 22 23
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.

º504 Regulations & Appendix, courtesy of TACHO/ CESD, www. 504idea. org Page 22 of 34 Spring, 1998 22
22 Page 23 24
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