[Code of Federal Regulations]
[Title 45, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR84.33]

[Page 330-331]
 
                        TITLE 45--PUBLIC WELFARE
 
                           AND HUMAN SERVICES
 
PART 84--NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS AND ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents
 
        Subpart D--Preschool, Elementary, and Secondary Education
 
Sec. 84.33  Free appropriate public education.

    (a) General. A recipient that operates a public elementary or 
secondary education program shall provide a free appropriate public 
education to each qualified handicapped person who is in the recipient's 
jurisdiction, regardless of the nature or severity of the person's 
handicap.
    (b) Appropriate education. (1) For the purpose of this subpart, the 
provision of an appropriate education is the provision of regular or 
special education and related aids and services that (i) are designed to 
meet individual 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 Secs. 84.34, 
84.35, and 84.36.
    (2) Implementation of an individualized education program developed 
in accordance with the Education of the Handicapped Act is one means of 
meeting the standard established in paragraph (b)(1)(i) of this section.
    (3) A recipient may place a handicapped person in or refer such 
person to a program other than the one that it operates as its means of 
carrying out the requirements of this subpart. If so, the recipient 
remains responsible for ensuring that the requirements of this subpart 
are met with respect to any handicapped person so placed or referred.
    (c) Free education--(1) General. For the purpose of this section, 
the provision of a free education is the provision of educational and 
related services without cost to the handicapped person or to his or her 
parents or guardian, except for those fees that are imposed on non-
handicapped persons or their parents or guardian. It may consist either 
of the provision of free services or, if a recipient places a 
handicapped person in or refers such person to a program not operated by 
the recipient as its means of carrying out the requirements of this 
subpart, of payment for the costs of the program. Funds available from 
any public or private agency may be used to meet the requirements of 
this subpart. Nothing in this section shall be construed to relieve an 
insurer or similar third party from an otherwise valid obligation to 
provide or pay for services provided to a handicapped person.
    (2) Transportation. If a recipient places a handicapped person in or 
refers such person to a program not operated by the recipient as its 
means of carrying out the requirements of this subpart, the recipient 
shall ensure that adequate transportation to and from the program is 
provided at no greater cost than would be incurred by the person or his 
or her parents or guardian if the person were placed in the program 
operated by the recipient.
    (3) Residential placement. If placement in a public or private 
residential program is necessary to provide a free appropriate public 
education to a handicapped person because of his or her handicap, the 
program, including non-medical care and room and board, shall be 
provided at no cost to the person or his or her parents or guardian.

[[Page 331]]

    (4) Placement of handicapped persons by parents. If a recipient has 
made available, in conformance with the requirements of this section and 
Sec. 84.34, a free appropriate public education to a handicapped person 
and the person's parents or guardian choose to place the person in a 
private school, the recipient is not required to pay for the person's 
education in the private school. Disagreements between a parent or 
guardian and a recipient regarding whether the recipient has made such a 
program available or otherwise regarding the question of financial 
responsibility are subject to the due process procedures of Sec. 84.36.
    (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.