[Code of Federal Regulations]

[Title 34, Volume 1]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 34CFR104.33]



[Page 378-379]

 

                           TITLE 34--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--Table of Contents

 

        Subpart D_Preschool, Elementary, and Secondary Education

 

Sec. 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)



[[Page 379]]



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 

Sec. Sec. 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 

Sec. 104.34, a free appropriate public education to a handicapped 

person and the person's parents or guardian choose to place the person 

in a private school, the recipient is not required to pay for the 

person's education in the private school. Disagreements between a parent 

or guardian and a recipient regarding whether the recipient has made a 

free appropriate public education available or otherwise regarding the 

question of financial responsibility are subject to the due process 

procedures of Sec. 104.36.

    (d) Compliance. A recipient may not exclude any qualified 

handicapped person from a public elementary or secondary education after 

the effective date of this part. A recipient that is not, on the 

effective date of this regulation, in full compliance with the other 

requirements of the preceding paragraphs of this section shall meet such 

requirements at the earliest practicable time and in no event later than 

September 1, 1978.



[45 FR 30936, May 9, 1980, as amended at 65 FR 68055, Nov. 13, 2000]