**§18.433 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.*

\(1\) The provision of an appropriate education is the provision of
regular or special education and related aids and services that:

\(i\) Are designed to meet individual educational needs of handicapped
persons as adequately as the needs of nonhandicapped persons are met;
and

\(ii\) Are based upon adherence to procedures that satisfy the
requirements of §§18.434, 18.435, and 18.436.

\(2\) 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 qualified handicapped person or refer that
person for aid, benefits, or services other than those that it operates
or provides as its means of carrying out the requirements of §§18.431
through 18.439. The recipients remain responsible for ensuring that the
requirements of §§18.431 through 18.439 are met with respect to any
qualified handicapped person so placed or referred.

\(c\) *Free education.*

\(1\) The provision of a free education is the provision of educational
and related services without cost to the handicapped person, parents or
guardian, except for those fees that are imposed on nonhandicapped
persons or their parents or guardian. It may consist either of the
provision of free services or, if a recipient places a handicapped
person or refers that person for aid, benefits, or services not operated
or provided by the recipient as its means of carrying out the
requirements of §§18.431 through 18.439, of payment for the costs of the
aid, benefits, or services. 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.

\(2\) If a recipient places a handicapped person or refers that person
for aid, benefits, or services not operated or provided 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 aid,
benefits, or services is provided at no greater cost than would be
incurred by the person, parents or guardian if the person were placed in
the program operated by the recipient.

\(3\) If placement in a public or private residential program is
necessary to provide 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, parents or guardian.

\(4\) If a recipient has made available, in conformance with this
section and §18.434, a free appropriate public education to a
handicapped person and the person's parents or guardian chooses 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 a free appropriate public education available or regarding the
question of financial responsibility are subject to the due process
procedures of §18.436.

\(d\) *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 part, in full compliance with the requirements of
paragraphs (a) through (c) of this section shall meet those requirements
at the earliest practicable time, but not later than October 1, 1981.

\[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986;
51 FR 12702, Apr. 15, 1986; 68 FR 51370, Aug. 26, 2003\]

**Supplement *Highlights* reference**: 58(1)