| U.S. Department of Education - Office
for Civil Rights - July 1999
INTRODUCTION
Section
504 of the Rehabilitation Act of 1973 protects the rights of individuals
with disabilities in programs and activities that receive 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]
FREE
APPROPRIATE PUBLIC EDUCATION
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:
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
-
a person for whom a state is required to provide
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 have disabilities are entitled to FAPE.
HOW
IS AN APPROPRIATE EDUCATION DEFINED?
An appropriate education may
be defined in different ways. An appropriate education could consist of
education in regular classes, education in regular classes with the use
of supplementary 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 such related
services as speech therapy, occupational and physical therapy, and psychological
counseling and medical diagnostic services necessary to the child's education.
An appropriate education
will include:
-
educational services designed to meet the
individual educational 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;
-
nondiscriminatory 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 and that provide for an impartial hearing with opportunity for
participation by parents and representation by counsel, and a review procedure.
Educational Services Must
Meet Individual Needs
To be appropriate, educational
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 for ensuring that
programs meet individual needs is the development of an individualized
education program (IEP) for each student with a disability. IEPs are required
for students participating in special education programs of recipients
of funding under the IDEA.
The quality of educational
services provided to students with disabilities must equal that provided
to nondisabled students. For example, teachers of students with disabilities
must meet standards for certification as high as those teachers of nondisabled
students meet. 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, 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 educational needs of the students
with disabilities. A recipient must place a person with a disability in
the regular educational 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 supplementary
aids must be provided for students with disabilities to ensure an appropriate
educational setting. Supplementary aids may include interpreters for students
who are deaf, readers for students who are blind, and equipment to make
physical accommodations for students with mobility impairments.
A recipient that places an
individual with disabilities in another school is responsible for ensuring
that the student receives a free appropriate public education as close
to his/her home as possible.
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
Must be Nondiscriminatory
Failure to provide persons
with disabilities with an appropriate education frequently occurs as a
result of misclassification and inappropriate placement. It is unacceptable
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.
An individual evaluation
must be conducted 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 must establish
standards and procedures for initial and continuing evaluations and placement
decisions regarding persons who, because of 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;
-
include materials tailored to assess specific
areas of educational need and not merely materials that are designed to
provide a single general intelligence quotient; and
-
are selected and administered so as to best
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.
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 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 participation and representation by counsel. A
review procedure 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 necessary services free of charge to students
with disabilities and their parents or guardians. Provision of a free education
is the provision of educational and related services without cost to the
person with a disability or his/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 a person 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
states 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.
States and LEAs that opt
to use the term "developmental delay" still may use the disability categories
in Part B of IDEA for children with diagnosed disabilities.
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 education for 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 Avenue, S.W., Washington, D.C.
20202. Additional information is also available at: www.ed.gov/offices/OSERS/OSEP/index.shtml.
HOW TO OBTAIN FURTHER
ASSISTANCE/INFORMATION
If you would like more information
about FAPE and the other laws enforced by the Office for Civil Rights,
how to file a complaint, or how to obtain technical assistance, you may
want to contact the enforcement office that serves your state or territory.
For further information, please contact our Customer Service Team at the
toll free number: 1-800-421-3481. You may also visit our web site
at http://www.ed.gov/ocr/
[1]Section
504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794.
[2]
Title 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 will refer only to Section 504.
[3]
The 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 will only use the term disability.
[4]
A 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.
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