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**U.S. Department of Education**    Arne Duncan*Secretary*

**Office for Civil Rights**    Russlynn Ali *Assistant Secretary*

First published July 1999.  Revised August     2010. 

### U.S. Department of EducationOffice for Civil RightsWashington, D.C. 20202

### Free Appropriate Public Education for Students With Disabilities:Requirements Under Section 504 of The *Rehabilitation Act of 1973*

### **Introduction**

Section 504  of the *Rehabilitation Act  of 1973* protects the rights of individuals with  disabilities in programs and activities that  receive federal financial assistance, including  federal funds. Section 504 provides that:  “No otherwise qualified individual  with a  disability in the United States . . . shall, solely  by reason of her or his disability, be excluded  from the participation in, be denied the  benefits of, or be subjected to discrimination  under any program or activity receivingFederal financial assistance . . .”1

The U.S. Department of Education (ED)  enforces Section 504 in programs and  activities that receive funds from ED.  Recipients of these funds include public  school districts, institutions of higher  education, and other state and local education  agencies. ED has published a regulation  implementing Section 504 (34 C.F.R.  Part 104) and maintains an Office for Civil  Rights (OCR), with 12 enforcement offices  and a headquarters office in Washington,  D.C., to enforce Section 504 and other civilrights laws that pertain to recipients of funds.2

The Section 504 regulation requires a school  district to provide a “free appropriate public  education” (FAPE) to each qualified person  with a disability who is in the school district’s  jurisdiction, regardless of the nature orseverity of the person’s disability.

This pamphlet answers the following questions  about FAPE according to Section 504:

-  Who is entitled to a free appropriate public education?
-  How is an appropriate education defined?
-  How is a free education defined?

### **Who Is Entitled to FAPE?**

All qualified persons with disabilities within the    jurisdiction of a school district are entitled to a free appropriate public    education. The ED Section 504 regulation defines a person with a disability    as “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.” 3

For elementary and secondary education programs, a qualified person with a disability is a person with a disability who is:

- of an age during which it is mandatory under state law to provide such services to persons with disabilities;
- of an age during which persons without disabilities are provided such services; or
- entitled to receive a free appropriate public    education under the  Individuals with    Disabilities Education Act  ( IDEA ). ( IDEA  is discussed later in the pamphlet.)

  In general, all school-age children who are individuals with disabilities as defined by Section 504 and *IDEA* are entitled to FAPE.

### **How Is an Appropriate Education Defined?**

  An appropriate education may comprise education in regular classes, education in regular classes with the use of related aids and services, or special education and related services in separate classrooms for all or portions of the school day. Special education may include specially designed instruction in classrooms, at home, or in private or public institutions, and may be accompanied by related services such as speech therapy, occupational and physical therapy, psychological counseling, and medical diagnostic services necessary to the child’s education.

An appropriate education will include:

- education services designed to meet the individual education needs of students with disabilities as adequately as the needs of nondisabled students are met;
- the education of each student with a disability with nondisabled students, to the maximum extent appropriate to the needs of the student with a disability;
- evaluation and placement procedures established to guard against misclassification or inappropriate placement of students, and a periodic reevaluation of students who have been provided special education or related services; and
- establishment of due process procedures    that enable parents and guardians to:
receive required notices;
review their child’s records; and
challenge identification, evaluation and placement decisions.

Due process procedures must also provide for    an impartial hearing with the opportunity for    participation by parents and representation by  counsel, and a review procedure.

### **Education Services Must Meet Individual Needs**

To be appropriate, education programs for  students with disabilities must be designed to  meet their individual needs to the same extent  that the needs of nondisabled students are  met. An appropriate education may include  regular or special education and related aids  and services to accommodate the uniqueneeds of individuals with disabilities.

One way to ensure that programs meet  individual needs is through the development  of an individualized education program (IEP)  for each student with a disability. IEPs are  required for students participating in the  special education programs of recipients offunding under the *IDEA*.

The quality of education services provided  to students with disabilities must equal the  quality of services provided to nondisabled  students. Teachers of students with  disabilities must be trained in the instruction  of individuals with disabilities. Facilities  must be comparable, and appropriatematerials and equipment must be available. 

Students with disabilities may not be  excluded from participating in nonacademic  services and extracurricular activities  on the basis of disability. Persons with  disabilities must be provided an opportunity  to participate in nonacademic services that  is equal to that provided to persons without  disabilities. These services may include  physical education and recreational athletics,  transportation, health services, recreational  activities, special interest groups or clubs  sponsored by the school, and referrals to  agencies that provide assistance to personswith disabilities and employment of students.

### **Students With Disabilities Must Be Educated With Nondisabled Students**

Students with disabilities and students  without disabilities must be placed in  the same setting, to the maximum extent  appropriate to the education needs of the  students with disabilities. A recipient of ED  funds must place a person with a disability  in the regular education environment, unless  it is demonstrated by the recipient that the  student’s needs cannot be met satisfactorily  with the use of supplementary aids and  services. Students with disabilities must  participate with nondisabled students in  both academic and nonacademic services,  including meals, recess, and physical  education, to the maximum extent appropriateto their individual needs.

As necessary, specific related aids and  services must be provided for students with  disabilities to ensure an appropriate educationsetting. Supplementary aids may include interpreters for students who are deaf,readersfor students who are blind, and door-to-doortransportation for students with mobilityimpairments.

A recipient of ED funds that places an  individual with disabilities in another school  is responsible for taking into account the  proximity of the other school to the student’s  home. If a recipient operates a facility for  persons with disabilities, the facility and  associated activities must be comparable to  other facilities, services, and activities of therecipient.

### **Evaluation and Placement Decisions Must Be Made in Accord With Appropriate Procedures**

Failure to provide persons with disabilities  with an appropriate education frequently  occurs as a result of misclassification and  inappropriate placement. It is illegal to  base individual placement decisions on  presumptions and stereotypes regarding  persons with disabilities or on classes of such  persons. For example, it would be a violation  of the law for a recipient to adopt a policy  that every student who is hearing impaired,  regardless of the severity of the child’s  disability, must be placed in a state school forthe deaf.

Section 504 requires the use of evaluation  and placement procedures that ensure that  children are not misclassified, unnecessarily  labeled as having a disability, or incorrectly  placed, based on inappropriate selection,  administration, or interpretation of evaluationmaterials.

A school district must conduct or arrange  for an individual evaluation at no cost to  the parents before any action is taken with  respect to the initial placement of a child  who has a disability, or before any significantchange in that placement.

Recipients of ED funds must establish  standards and procedures for initial and  continuing evaluations and placement  decisions regarding persons who, because  of a disability, need or are believed to needspecial education or related services.

These procedures must ensure that 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;
- are tailored to assess specific areas of education need and are not designed merely to provide a single general intelligence quotient; and
- 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).

Recipients must draw upon a variety of sources in the evaluation and placement process so that the possibility of error is  minimized. All significant factors related to the learning process must be considered.

These sources and factors include, for  example, aptitude and achievement tests,  teacher recommendations, physical condition,  social and cultural background, and  adaptive behavior. “Adaptive behavior is the  effectiveness with which the individual meets  the standards of personal independence and  social responsibility expected of his or her  age and cultural group.” (See Appendix A to34 CFR Part 104, Evaluation and Placement.)

Information from all sources must be documented and considered by a group of knowledgeable persons, and procedures must ensure that the student is placed with nondisabled students to the greatest extent appropriate.

Periodic reevaluation is required. This may be conducted in accordance with the *IDEA* regulation, which requires reevaluation at three-year intervals (unless the parent and school district agree reevaluation is unnecessary) or more frequently if conditions warrant, or if the child’s parent or teacher requests a reevaluation.

### **Recipients Must Have Due Process Procedures for the Review of Identification, Evaluation, and Placement Decisions**

Public elementary and secondary schools must employ procedural safeguards regarding the identification, evaluation, or educational placement of persons who, because of disability, need or are believed to need special instruction or related services.

Parents must be told about these procedures.  In addition, parents or guardians must be  notified of any evaluation or placement  actions, and must be allowed to examine the  student’s records. The due process procedures  must allow the parents or guardians of  students in elementary and secondary schools  to challenge evaluation and placementprocedures and decisions.

If parents or guardians disagree with the  school’s decisions, they must be afforded  an impartial hearing, with an opportunity  for their participation and for representation  by counsel. A review procedure also must  be available to parents or guardians whodisagree with the hearing decision.

### **How Is A Free Education Defined?**

Recipients operating federally funded  programs must provide education and related  services free of charge to students with  disabilities and their parents or guardians.  Provision of a free education is the provision  of education and related services without cost  to the person with a disability or his or her  parents or guardians, except for fees equally  imposed on nondisabled persons or theirparents or guardians.

If a recipient is unable to provide a free appropriate public education itself, the recipient may place a person with a disability in, or refer such person to, a program other than the one it operates.  However, the recipient remains responsible  for ensuring that the education offered is an  appropriate education, as defined in the law,  and for coverage of financial obligations  associated with the placement.

The cost of the program may include tuition and other related services, such as room and board, psychological and medical services necessary for diagnostic and evaluative purposes, and adequate transportation. Funds available from any public or private source, including insurers,4 may be used by the recipient to meet the requirements of FAPE.  

If a student is placed in a private school  because a school district cannot provide an  appropriate program, the financial obligations  for this placement are the responsibility of  the school district. However, if a school  district makes available a free appropriate  public education and the student’s parents or  guardian choose to place the child in a private  school, the school district is not required to  pay for the student’s education in the private  school. If a recipient school district places  a student with a disability in a program that  requires the student to be away from home,  the recipient is responsible for the cost ofroom and board and nonmedical care.

To meet the requirements of FAPE, a  recipient may place a student with a disability  in, or refer such student to, a program not  operated by the recipient. When this occurs,  the recipient must ensure that adequate  transportation is provided to and from the  program at no greater personal or family cost  than would be incurred if the student with  a disability were placed in the recipient’sprogram.

### FAPE Provisions in the *Individuals with Disabilities Education Act (IDEA)*

Part B of *IDEA* requires participating states5 to  ensure that a free appropriate  public education (FAPE) is made available  to eligible children with disabilities in  mandatory age ranges residing in the state.  To be eligible, a child must be evaluated as  having one or more of the disabilities listed in  *IDEA* and determined to be in need of special  education and related services. Evaluations  must be conducted according to prescribed  procedures. The disabilities specified in  *IDEA* include: mental retardation, hearing  impairments including deafness, speech or  language impairments, visual impairments  including blindness, emotional disturbance,  orthopedic impairments, autism, traumatic  brain injury, other health impairments,  specific learning disabilities, deaf-blindness,  and multiple disabilities. Additionally,  states and local education agencies (LEAs)  may adopt the term “developmental delay”  for children aged 3 through  9 (or a subset of that age range) who are experiencing  a developmental delay as defined by the  state and need special education and relatedservices.

The requirements for FAPE under *IDEA* are  more detailed than those under Section 504.  In specific instances detailed in the Section  504 regulation (for example, with respect to  reevaluation procedures and the provision  of an appropriate education), meeting the  requirements of *IDEA* is one means of  meeting the requirements of the Section 504regulation.

*IDEA*requirements apply to states receiving  financial assistance under *IDEA*. States must  ensure that their political subdivisions that are  responsible for providing or paying for the  education of children with disabilities meet  *IDEA* requirements. All states receive *IDEA* funds. Section  504 applies to any program or activity receiving ED financial assistance.

*IDEA* is administered by ED’s Office of  Special Education Programs (OSEP),  a component of ED’s Office of Special  Education and Rehabilitative Services  (OSERS). For more information about *IDEA*,  contact OSERS at 400 Maryland Ave. S.W.,  Washington, DC 20202-7100. Additional  information is also available at: http://www.  ed.gov/about/offices/list/osers/osep/.

### How to Obtain Further Assistance And Information

If you would like more information about  Section 504 and the other laws enforced  by the Office for Civil Rights, about how  to file a complaint, or, if you are a school  or school district, about how to obtain  technical assistance, contact the Enforcement  Office that serves your state or jurisdiction.  Contact information for these offices is  at http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm. Information about  discrimination based on disability is on  OCR’s Web site at http://www.ed.gov/policy/rights/guid/ocr/disability.html. For further  information, please contact our Customer Service Team toll-free at 1-800-421-3481.

### Endnotes

1Section 504 of the *Rehabilitation Act of 1973*, as amended, 29 U.S.C. 794.  

2Title  II of the *Americans with Disabilities* Act of 1990, (ADA), 42 U.S.C. � 12131 et  seq., prohibits state and local governments  from discriminating on the basis of disability.  ED enforces Title II in public elementary and  secondary education systems and institutions,  public institutions of higher education and  vocational education (other than schools of  medicine, dentistry, nursing, and other health-related  schools), and public libraries. The  requirements regarding the provisions of a  free appropriate public education (FAPE),  specifically described in the Section 504  regulations, are incorporated in the general  non-discrimination provisions of the Title II  regulation. Because Title II does not change  the requirements of FAPE, this pamphletrefers only to Section 504.

3The Section 504 regulation uses the term “handicap.” However, Congress has amended the *Rehabilitation Act of 1973* and has replaced the term “handicap” with the term “disability.” The terms “handicap” and “disability” have the same meaning. This pamphlet uses only the term “disability.”  

The *Americans with Disabilities*Act*Amendments Act    (Amendments Act)*,  P.L. 110-325, amended the ADA and Section  7 of the *Rehabilitation* Act of 1973, which  contains the disability definition for Section  504. The *Amendments Act*became effective  on January 1, 2009. The *Amendments Act* affected the meaning of the term “disability”  in the ADA and Section  504, most notably by requiring that “disability” under these statutes  be interpreted broadly. More informationabout the *Amendments Act* is available fromOCR’s website at http://www.ed.gov/policy/rights/guid/ocr/disability.html and http://www.ed.gov/ocr/504faq.html.

4A recipient responsible for providing FAPE may not require parents to use private insurance proceeds to pay for required services where the parents would incur financial loss.  

5 “State” in this publication refers to each of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

> 
This publication is in the public domain. Authorization    to reproduce it in whole or in part is granted. The    publication’s citation should be: U.S. Department of    Education, Office for Civil Rights, *Free Appropriate    Public Education for Students With Disabilities:    Requirements Under Section 504 of the Rehabilitation  Act of 1973*, Washington, D.C., 2010.

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