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[Notice to 
Readers]

TITLE 34 EDUCATION

SUBTITLE B  REGULATIONS OF THE 
OFFICES OF THE DEPARTMENT OF EDUCATION

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

**PART 104 -- NONDISCRIMINATION 
ON THE BASIS OF HANDICAP IN PROGRAMS OR 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 -- 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.

104.39 
Private education.

**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**

**104.1 Purpose.**

The purpose of this part is to effectuate 
section 504 of the Rehabilitation Act of 1973, which is designed to eliminate 
discrimination on the basis of handicap in any program or activity receiving 
Federal financial assistance.

**104.2 Application.**

This part applies to each recipient of Federal 
financial assistance from the Department of Education and to the program or 
activity that receives such assistance.

**104.3 Definitions.**

As used in this part, the term:

(a) *The Act* means the Rehabilitation 
Act of 1973, Pub. L. 93‐112, as amended by the Rehabilitation Act Amendments of 
1974, Pub. L. 93‐516, 29 U.S.C. 794.

(b) *Section 504* means section 504 of 
the Act.

(c) *Education of the Handicapped Act* 
means that statute as amended by the Education for all Handicapped Children Act 
of 1975, Pub. L. 94‐142, 20 U.S.C. 1401 et seq.

(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 misclassified as having, a 
mental or physical impairment that substantially limits one or more major life 
activities.

(iv) *Is regarded as 
having an impairment* means (A) has a physical or mental impairment that 
does not substantially limit major life activities but that is treated by a 
recipient as constituting such a limitation; (B) has a physical or mental 
impairment that substantially limits major life activities only as a result of 
the attitudes of others toward such impairment; or (C) has none of the 
impairments defined in paragraph (j)(2)(i) of this section but is treated by a 
recipient as having such an impairment.

(k*) Program or activity* means all of 
the operations of--

(1)(i) A department, agency, special purpose 
district, or other instrumentality of a State or of a local government; or

(ii) The entity of such State or local 
government that distributes such assistance and each such department or agency 
(and each other State or local government entity) to which the assistance is 
extended, in the case of assistance to a State or local government;

(2)(i) A college, university, or other 
postsecondary institution, or a public system of higher education; or

(ii) A local educational agency (as defined in 
20 U.S.C. 8801), system of vocational education, or other school system;

(3)(i) An entire corporation, partnership, or 
other private organization, or an entire sole proprietorship--

(A) If assistance is extended to such 
corporation, partnership, private organization, or sole proprietorship as a 
whole; or

(B) Which is principally engaged in the 
business of providing education, health care, housing, social services, or parks 
and recreation; or

(ii) The entire plant or other comparable, 
geographically separate facility to which Federal financial assistance is 
extended, in the case of any other corporation, partnership, private 
organization, or sole proprietorship; or

(4) Any other entity which is established by 
two or more of the entities described in paragraph (k)(1), (2), or (3) of this 
section; any part of which is extended Federal financial assistance.

(Authority: 29 U.S.C. 794(b))

(l)*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 (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 
Handicapped Act; and

(3) With respect to postsecondary and 
vocational education services, a handicapped person who meets the academic and 
technical standards requisite to admission or participation in the recipient's 
education program or activity;

(4) With respect to other services, a 
handicapped person who meets the essential eligibility requirements for the 
receipt of such services.

(m) *Handicap* means any condition or 
characteristic that renders a person a handicapped person as defined in 
paragraph (j) of this section.

**104.4 Discrimination prohibited.**

(a) *General.* No qualified handicapped 
person shall, on the basis of handicap, be excluded from participation in, be 
denied the benefits of, or otherwise be subjected to discrimination under any 
program or activitiy which receives Federal financial assistance.

(b) *Discriminatory actions 
prohibited.* (1) A recipient, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, on the 
basis of handicap:

(i) Deny a qualified handicapped person the 
opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified handicapped person an 
opportunity to participate in or benefit from the aid, benefit, or service that 
is not equal to that afforded others;

(iii) Provide a qualified handicapped person 
with an aid, benefit, or service that is not as effective as that provided to 
others;

(iv) Provide different or separate aid, 
benefits, or services to handicapped persons or to any class of handicapped 
persons unless such action is necessary to provide qualified handicapped persons 
with aid, benefits, or services that are as effective as those provided to 
others;

(v) Aid or perpetuate discrimination against a 
qualified handicapped person by providing significant assistance to an agency, 
organization, or person that discriminates on the basis of handicap in providing 
any aid, benefit, or service to beneficiaries of the recipients program or 
activity;

(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 aid, benefits, or services provided in accordance with this part, a 
recipient may not deny a qualified handicapped person the opportunity to 
participate in such aid, benefits, or services 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 or activity with respect to handicapped persons, or (iii) 
that perpetuate the discrimination of another recipient if both recipients are 
subject to common administrative control or are agencies of the same State.

(5) In determining the site or location of a 
facility, an applicant for assistance or a recipient may not make selections (i) 
that have the effect of excluding handicapped persons from, denying them the 
benefits of, or otherwise subjecting them to discrimination under any program or 
activity that receives Federal financial assistance or (ii) that have the 
purpose or effect of defeating or substantially impairing the accomplishment of 
the objectives of the program or activity with respect to handicapped 
persons.

(6) As used in this section, the aid, benefit, 
or service provided under a program or activity receiving 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) *Aid, benefits or services limited by 
Federal law.* The exclusion of nonhandicapped persons from aid, benefits, 
or services limited by Federal statute or executive order to handicapped persons 
or the exclusion of a specific class of handicapped persons from aid, benefits, 
or services limited by Federal statute or executive order to a different class 
of handicapped persons is not prohibited by this part.

**104.5 Assurances required.**

(a) *Assurances.* An applicant for 
Federal financial assistance to which this part applies shall submit an 
assurance, on a form specified by the Assistant Secretary, that the program or 
activity 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 transferred, 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.

**104.6 Remedial action, voluntary action, and 
self‐evaluation.**

(a) *Remedial action.* (1) If the 
Assistant Secretary finds that a recipient has discriminated against persons on 
the basis of handicap in violation of section 504 or this part, the recipient 
shall take such remedial action as the Assistant Secretary deems necessary to 
overcome the effects of the discrimination.

(2) Where a recipient is found to have 
discriminated against persons on the basis of handicap in violation of section 
504 or this part and where another recipient exercises control over the 
recipient that has discriminated, the Assistant Secretary, where appropriate, 
may require either or both recipients to take remedial action.

(3) The Assistant Secretary may, where 
necessary to overcome the effects of discrimination in violation of section 504 
or this part, require a recipient to take remedial action (i) with respect to 
handicapped persons who are no longer participants in the recipient's program or 
activity but who were participants in the program or activity when such 
discrimination occurred or (ii) with respect to handicapped persons who would 
have been participants in the program or activity 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.

**104.7 Designation of responsible employee and 
adoption of grievance procedures.**

(a) *Designation of responsible 
employee.* A recipient that employs fifteen or more persons shall designate 
at least one person to coordinate its efforts to comply with this part.

(b) *Adoption of grievance procedures.* 
A recipient that employs fifteen or more persons shall adopt grievance 
procedures that incorporate appropriate due process standards and that provide 
for the prompt and equitable resolution of complaints alleging any action 
prohibited by this part. Such procedures need not be established with respect to 
complaints from applicants for employment or from applicants for admission to 
postsecondary educational institutions.

**104.8 Notice.**

(a) A recipient that employs fifteen or more 
persons shall take appropriate initial and continuing steps to notify 
participants, beneficiaries, applicants, and employees, including those with 
impaired vision or hearing, and unions or professional organizations holding 
collective bargaining or professional agreements with the recipient that it does 
not discriminate on the basis of handicap in violation of section 504 and this 
part. The notification shall state, where appropriate, that the recipient does 
not discriminate in admission or access to, or treatment or employment in, its 
program or activity. The notification shall also include an identification of 
the responsible employee designated pursuant to 
**** 104.7(a). A recipient shall make the initial 
notification required by this paragraph within 90 days of the effective date of 
this part. Methods of initial and continuing notification may include the 
posting of notices, publication in newspapers and magazines, placement of 
notices in recipients' publication, and distribution of memoranda or other 
written communications.

(b) If a recipient publishes or uses 
recruitment materials or publications containing general information that it 
makes available to participants, beneficiaries, applicants, or employees, it 
shall include in those materials or publications a statement of the policy 
described in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing materials 
and publications or by revising and reprinting the materials and 
publications.

**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  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.

**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**

**104.11 Discrimination prohibited.**

(a) *General.* (1) No qualified 
handicapped person shall, on the basis of handicap, be subjected to 
discrimination 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 or activities 
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 opportunities 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 relationships 
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 apprenticeships.

(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 
compensation 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 
those that are social or recreational; 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.

**104.12 Reasonable accommodation.**

(a) A recipient shall make reasonable 
accommodation to the known physical or mental limitations of an otherwise 
qualified handicapped applicant or employee unless the recipient can demonstrate 
that the accommodation would impose an undue hardship on the operation of its 
program or activity.

(b) Reasonable accommodation may include:

(1) Making facilities used by employees 
readily accessible to and usable by handicapped persons, and

(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 or activity, factors to be considered 
include:

(1) The overall size of the recipient's 
program or activity 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.

**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).

**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  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  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 employee'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 requirements 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 
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--Accessibility**

**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.

**104.22 Existing facilities.**

(a) *Accessibility.* A recipient shall 
operate its program or activity so that when each part is viewed in its 
entirety, it 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  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 serve 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 organizations 
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 accessibility in order to comply with paragraph (a) of 
this section 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 accessible to and 
usuable by handicapped persons.

**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 
substantially 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**

**104.31 Application of this subpart.**

Subpart D applies to preschool, elementary, 
secondary, and adult education programs or activities that receive Federal 
financial assistance and to recipients that operate, or that receive Federal 
financial assistance for the operation of, such programs or activities.

**104.32 Location and notification.**

A recipient that operates a public elementary 
or secondary education program or activity shall annually:

(a) Undertake to identify and locate every 
qualified handicapped person residing in the recipient's jurisdiction who is not 
receiving a public education; and

(b) Take appropriate steps to notify 
handicapped persons and their parents or guardians of the recipient's duty under 
this subpart.

**104.33 Free appropriate public 
education.**

(a) *General.* A recipient that 
operates a public elementary or secondary education program or activity shall 
provide a free appropriate public education to each qualified handicapped person 
who is in the recipient's jurisdiction, regardless of the nature or severity of 
the person's handicap.

(b) *Appropriate education.* (1) For 
the purpose of this subpart, the provision of an appropriate education is the 
provision of regular or special education and related aids and services that (i) 
are designed to meet individual educational needs of handicapped persons as 
adequately as the needs of nonhandicapped persons are met and (ii) are based 
upon adherence to procedures that satisfy the requirements of  104.34, 104.35, 
and 104.36.

(2) Implementation of an Individualized 
Education Program developed in accordance with the Education of the Handicapped 
Act is one means of meeting the standard established in paragraph (b)(1)(i) of 
this section.

(3) A recipient may place a handicapped person 
or refer such a person for aid, benefits, or services other than those that it 
operates or provides as its means of carrying out the requirements of this 
subpart. If so, the recipient remains responsible for ensuring that the 
requirements of this subpart are met with respect to any handicapped person so 
placed or referred.

(c) *Free education* -- (1) 
*General.* For the purpose of this section, the provision of a free 
education is the provision of educational and related services without cost to 
the handicapped person or to his or her parents or guardian, except for those 
fees that are imposed on non-handicapped persons or their parents or guardian. 
It may consist either of the provision of free services or, if a recipient 
places a handicapped person or refers such person for aid, benefits, or services 
not operated or provided by the recipient as its means of carrying out the 
requirements of this subpart, 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*) Transportation.* If a recipient 
places a handicapped person or refers such 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 or his or her parents or 
guardian if the person were placed in the aid, benefits, or services operated by 
the recipient.

(3) *Residential placement.* If a 
public or private residential placement is necessary to provide a free 
appropriate public education to a handicapped person because of his or her 
handicap, the placement, including non‐medical care and room and board, shall be 
provided at no cost to the person or his or her parents or guardian.

(4*) Placement of handicapped persons by 
parents.* If a recipient has made available, in conformance with the 
requirements of this section and 104.34, a free appropriate public education to 
a handicapped person and the person's parents or guardian choose to place the 
person in a private school, the recipient is not required to pay for the 
person's education in the private school. Disagreements between a parent or 
guardian and a recipient regarding whether the recipient has made a free 
appropriate public education available or otherwise regarding the question of 
financial responsibility are subject to the due process procedures of 
104.36.

(d) *Compliance.* A recipient may not 
exclude any qualified handicapped person from a public elementary or secondary 
education after the effective date of this part. A recipient that is not, on the 
effective date of this regulation, in full compliance with the other 
requirements of the preceding paragraphs of this section shall meet such 
requirements at the earliest practicable time and in no event later than 
September 1, 1978.

**104.34 Educational setting.**

(a) *Academic setting.* A recipient to 
which this subpart applies shall educate, or shall provide for the education of, 
each qualified handicapped person in its jurisdiction with persons who are not 
handicapped to the maximum extent appropriate to the needs of the handicapped 
person. A recipient shall place a handicapped person in the regular educational 
environment operated by the recipient unless it is demonstrated by the recipient 
that the education of the person in the regular environment with the use of 
supplementary aids and services cannot be achieved satisfactorily. Whenever a 
recipient places a person in a setting other than the regular educational 
environment pursuant to this paragraph, it shall take into account the proximity 
of the alternate setting to the person's home.

(b) *Nonacademic settings.* In 
providing or arranging for the provision of nonacademic and extracurricular 
services and activities, including meals, recess periods, and the services and 
activities set forth in **** 104.37(a)(2), a recipient shall 
ensure that handicapped persons participate with nonhandicapped persons in such 
activities and services to the maximum extent appropriate to the needs of the 
handicapped person in question.

(c) *Comparable facilities.* If a 
recipient, in compliance with paragraph (a) of this section, operates a facility 
that is identifiable as being for handicapped persons, the recipient shall 
ensure that the facility and the services and activities provided therein are 
comparable to the other facilities, services, and activities of the 
recipient.

**104.35 Evaluation and placement.**

(a) *Preplacement evaluation.* A 
recipient that operates a public elementary or secondary education program or 
activity shall conduct an evaluation in accordance with the requirements of 
paragraph (b) of this section of any person who, because of handicap, needs or 
is believed to need special education or related services before taking any 
action with respect to the initial placement of the person in regular or special 
education and any subsequent significant change in placement.

(b) *Evaluation procedures.* A 
recipient to which this subpart applies shall establish standards and procedures 
for the evaluation and placement of persons who, because of handicap, need or 
are believed to need special education or related services which ensure 
that:

(1) Tests and other evaluation materials have 
been validated for the specific purpose for which they are used and are 
administered by trained personnel in conformance with the instructions provided 
by their producer;

(2) Tests and other evaluation materials 
include those tailored to assess specific areas of educational need and not 
merely those which are designed to provide a single general intelligence 
quotient; and

(3) Tests are selected and administered so as 
best to ensure that, when a test is administered to a student with impaired 
sensory, manual, or speaking skills, the test results accurately reflect the 
student's aptitude or achievement level or whatever other factor the test 
purports to measure, rather than reflecting the student's impaired sensory, 
manual, or speaking skills (except where those skills are the factors that the 
test purports to measure).

(c) *Placement procedures.* In 
interpreting evaluation data and in making placement decisions, a recipient 
shall (1) draw upon information from a variety of sources, including aptitude 
and achievement tests, teacher recommendations, physical condition, social or 
cultural background, and adaptive behavior, (2) establish procedures to ensure 
that information obtained from all such sources is documented and carefully 
considered, (3) ensure that the placement decision is made by a group of 
persons, including persons knowledgeable about the child, the meaning of the 
evaluation data, and the placement options, and (4) ensure that the placement 
decision is made in conformity with 104.34.

(d) *Reevaluation.* A recipient to 
which this section applies shall establish procedures, in accordance with 
paragraph (b) of this section, for periodic reevaluation of students who have 
been provided special education and related services. A reevaluation procedure 
consistent with the Education for the Handicapped Act is one means of meeting 
this requirement.

**104.36 Procedural safeguards.**

A recipient that operates a public elementary 
or secondary education program or activity shall establish and implement, with 
respect to actions regarding the identification, evaluation, or educational 
placement of persons who, because of handicap, need or are believed to need 
special instruction or related services, a system of procedural safeguards that 
includes notice, an opportunity for the parents or guardian of the person to 
examine relevant records, an impartial hearing with opportunity for 
participation by the person's parents or guardian and representation by counsel, 
and a review procedure. Compliance with the procedural safeguards of section 615 
of the Education of the Handicapped Act is one means of meeting this 
requirement.

**104.37 Nonacademic services.**

(a) *General.* (1) A recipient to which 
this subpart applies shall provide non‐academic and extracurricular services and 
activities in such manner as is necessary to afford handicapped students an 
equal opportunity for participation in such services and activities.

(2) Nonacademic and extracurricular services 
and activities may include counseling services, physical recreational athletics, 
transportation, health services, recreational activities, special interest 
groups or clubs sponsored by the recipients, referrals to agencies which provide 
assistance to handicapped persons, and employment of students, including both 
employment by the recipient and assistance in making available outside 
employment.

(b) *Counseling services.* A recipient 
to which this subpart applies that provides personal, academic, or vocational 
counseling, guidance, or placement services to its students shall provide these 
services without discrimination on the basis of handicap. The recipient shall 
ensure that qualified handicapped students are not counseled toward more 
restrictive career objectives than are nonhandicapped students with similar 
interests and abilities.

(c) *Physical education and athletics.* 
(1) In providing physical education courses and athletics and similar aid, 
benefits, or services 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.

(2) A recipient may offer to handicapped 
students physical education and athletic activities that are separate or 
different from those offered to nonhandicapped students only if separation or 
differentiation is consistent with the requirements of 104.34 and only if no 
qualified handicapped student is denied the opportunity to compete for teams or 
to participate in courses that are not separate or different.

**104.38 Preschool and adult 
education.**

A recipient to which this subpart applies that 
provides preschool education or day care or adult education may not, on the 
basis of handicap, exclude qualified handicapped persons and shall take into 
account the needs of such persons in determining the aid, benefits, or services 
to be provided.

**104.39 Private education.**

(a) A recipient that provides private 
elementary or secondary education may not, on the basis of handicap, exclude a 
qualified handicapped person if the person can, with minor adjustments, be 
provided an appropriate education, as defined in 104.33(b)(1), within that 
recipients program or activity.

(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 provides special education shall do so in accordance with the provisions of 
 104.35 and 104.36. Each recipient to which this section applies is subject to 
the provisions of  104.34, 104.37, and 104.38.

**Subpart E -- 
Postsecondary Education**

**104.41 Application of this subpart.**

Subpart E applies to postsecondary education 
programs or activities, including postsecondary vocational education programs or 
activities, that receive Federal financial assistance and to recipients that 
operate, or that receive Federal financial assistance for the operation of, such 
programs or activities.

**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 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 104.6(a) or 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 
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.

**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, counseling, financial aid, 
physical education, athletics, recreation, transportation, other 
extracurricular, or other postsecondary education aid, benefits, or services 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 program or activity in the most integrated setting 
appropriate.

**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 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 completion 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.

(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 examinations or other procedures for evaluating students' academic 
achievement, a recipient to which this subpart applies shall provide such 
methods for evaluating 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 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.

**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.

**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 nonhandicapped 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 students 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.

**104.47 Nonacademic services.**

(a) *Physical education and athletics.* 
(1) In providing physical education courses and athletics and similar aid, 
benefits, or services 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 participation 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 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 
organizations do not permit discrimination otherwise prohibited by this 
subpart.

**Subpart F -- Health, 
Welfare, and Social Services**

**104.51 Application of this subpart.**

Subpart F applies to health, welfare, and 
other social service programs or activities that receive Federal financial 
assistance and to recipients that operate, or that receive Federal financial 
assistance for the operation of, such programs or activities.

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

**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.

**104.54 Education of institutionalized 
persons.**

A recipient to which this subpart applies and 
that operates or supervises a program or activity that provides aid, benefits or 
services for persons who are institutionalized because of handicap shall ensure 
that each qualified handicapped person, as defined in 104.3(k)(2), in its 
program or activity is provided an appropriate education, as defined in 
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**

**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  100.6‐100.10 and part 101 of this title.****