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Subpart D-Preschool, Elementary,

and Secondary Education

8 605.31 Application of this subpart.

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

8 605.23 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 qualified 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 qualified handicapped persons.

(c) American National Standards Institute accessibility standards. Design, construction, or alteration of facilities in conformance with the "American National Standard Specifications for Making Buildings and Facilities Accessible to, and Usable by, the Physically Handicapped," published by the American National Standards Institute, Inc. (ANSI A117.1-1961 (R1971)).' which is incorporated by reference in this part, shall constitute compliance with paragraphs (a) and (b) of this section. Departures from particular requirements of those standards by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided.

NOTE: Incorporation by reference provi. sions approved by the Director of the FEDERAL REGISTER on March 1, 1982. 88 605.24-605.30 (Reserved]

8 605.32 Location and notification.

A recipient that operates a public elementary or secondary education program 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 or the recipient's duty under this subpart.

8 605.33 Free appropriate public educa

tion. (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 $$ 605.34, 605.35 and 605.36.

(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.

Copies obtainable from American National Standards Institute, Inc., 1430 Broadway, New York, N.Y. 10018.

(3) A recipient may place a handi- the requirements of this section and capped person in or refer such person $ 605.34, a free appropriate public eduto a program other than the one that cation to a handicapped person and it operates as its means of carrying out the person's parents or guardian the requirements of this subpart. If so, chooses to place the person in a prithe recipient remains responsible for vate school, the recipient is not reensuring that the requirements of this quired to pay for the person's educasubpart are met with respect to any tion in the private school. Disagreehandicapped person so placed or re- ments between a parent or guardian ferred.

and a recipient regarding whether the (c) Free education (1) General. For recipient has made such a program the purpose of this section, the provi available or otherwise regarding the sion of a free education is the provi question of financial responsibility are sion of educational and related serv subject to the due process procedures ices without cost to the handicapped of $ 605.36. person or to his or her parents or (d) Compliance. A recipient may not guardian, except for those fees that exclude any qualified handicapped are imposed on non-handicapped per

person from a public elementary or sons or their parents or guardian. It

secondary education after the effecmay consist either of the provision of

tive date of this part. A recipient that free services or, if a recipient places a

is not, on the effective date of this reghandicapped person in or refers such

ulation, in full compliance with the person to a program not operated by

other requirements of the preceding the recipient as its means of carrying

paragraphs of this section shall meet out the requirements of this subpart,

such requirements at the earliest pracof payment for the costs of the pro

ticable time and in no event later than gram. Funds available from any public

July 1, 1983. or private agency may be used to meet the requirements of this subpart. 8 605.34 Educational setting. Nothing in this section shall be construed to relieve an insurer or similar

(a) Academic setting. A recipient to third party from an otherwise valid

which this subpart applies shall eduobligation to provide or pay for serv

cate, or shall provide for the education ices provided to a handicapped person.

of, each qualified handicapped person (2) Transportation. If a recipient

in its jurisdiction with persons who places a handicapped person in or

are not handicapped to the maximum refers such person to a program not extent appropriate to the needs of the operated by the recipient as its means

handicapped person. A recipient shall of carrying out the requirements of

place a handicapped person in the regthis subpart, the recipient shall ensure

ular educational environment operatthat adequate transportation to and

ed by the recipient unless it is demonfrom the program is provided at no strated by the recipient that the edugreater cost than would be incurred by cation of the person in the regular enthe person or his or her parents or

vironment with the use of supplemenguardian if the person were placed in tary aids and services cannot be the program operated by the recipient. achieved satisfactorily. Whenever a re

(3) Residential placement. If place cipient places a person in a setting ment in a public or private residential other than the regular educational enprogram is necessary to provide a free vironment pursuant to this paragraph, appropriate public education to a it shall take into account the proximhandicapped person because of his or ity of the alternate setting to the perher handicap, the program, including non-medical care and room and board, (b) Nonacademic settings. In providshall be provided at no cost to the ing or arranging for the provision of person or his or her parents or guardi- nonacademic and extracurricular seryan.

ices and activities, including meals, (4) Placement of handicapped per- recess periods, and the services and acsons by parents. If a recipient has tivities set forth in $ 605.37(a)(2), a remade available, in conformance with cipient shall ensure that handicapped

ne.

persons participate with nonhandi. sensory, manual, or speaking skills capped persons in such activities and (except where those skills are the facservices to the maximum extent ap- tors that the test purports to measpropriate to the needs of the handi- ure). capped person in question.

(c) Placement procedures. In inter(c) Comparable facilities. If a recipi

preting evaluation data and in making ent, in compliance with paragraph (a)

placement decisions, a recipient shall of this section, operates a facility that

(1) draw upon information from a variis identifiable as being for handi

ety of sources, including aptitude and capped persons, the recipient shall

achievement tests, teacher recommenensure that the facility and the sery

dations, physical condition, social or ices and activities provided therein are comparable to the other facilities,

cultural background, and adaptive beservices, and activities of the recipient.

havior, (2) establish procedures to

ensure that information obtained from $ 605.35 Evaluation and placement.

all such sources is documented and (a) Preplacement evaluation. A re

carefully considered, (3) ensure that cipient that operates a public elemen

the placement decision is made by a tary or secondary education program

group of persons, including persons shall conduct an evaluation in accord knowledgeable about the child, the ance with the requirements of para meaning of the evaluation data, and graph (b) of this section of any person the placement options, and (4) ensure who, because of handicap, needs or is that the placement decision is made in believed to need special education or conformity with $ 605.34. related services before taking any (d) Reevaluation. A recipient to action with respect to the initial place- which this section applies shall estabment of the person in a regular or spe- lish procedures, in accordance with cial education program and any subse paragraph (b) of this section, for periquent significant change in placement. odic reevaluation of students who (b) Evaluation procedures. A recipi

have been provided special education ent to which this subpart applies shall

and related services. A reevaluation establish standards and procedures for

procedure consistent with the Educathe evaluation and placement of per

tion for the Handicapped Act is one sons who, because of handicap, need

means of meeting this requirement. or are believed to need special education or related services which ensure

8 605.36 Procedural safeguards. that:

(1) Tests and other evaluation mate A recipient that operates a public rials have been validated for the spe elementary or secondary education cific purpose for which they are used program shall establish and impleand are administered by trained per ment, with respect to actions regardsonnel in conformance with the ing the identification, evaluation, or instructions provided by their produc- educational placement of persons who, er;

because of handicap, need or are be(2) Tests and other evaluation mate lieved to need special instruction or rerials include those tailored to assess lated services, a system of procedural specific areas of educational need and safeguards that includes notice, an opnot merely those which are designed

portunity for the parents or guardian to provide a single general intelligence

of the person to examine relevant quotient; and

records, an impartial hearing with op(3) Tests are selected and adminis

portunity for participation by the pertered so as best to ensure that, when a

son's parents or guardian and repretest is administered to a student with impaired sensory, manual, or speaking

sentation by counsel, and a review proskills, the test results accurately re

cedure. Compliance with the procedurflect the student's aptitude or achieve

al safeguards of section 615 of the ment level or whatever other factor

Education of the Handicapped Act is the test purports to measure, rather

one means of meeting this requirethan reflecting the student's impaired ment.

$ 605.38 Preschool and adult education

programs. A recipient to which this subpart ap plies that operates a preschool educa tion or day care program or activity o an adult education program or activity may not, on the basis of handicap, exclude qualified handicapped persons from the program or activity and shall take into account the needs of such persons in determining the aid, benefits, or services to be provided under the program or activity.

$ 605.37 Nonacademic services.

(a) General. (1) A recipient to which this subpart applies shall provide nonacademic 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 employ. ment 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 service without discrimination on the basis of handicap. The recipi. ent 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 programs and activities 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 in these activities.

(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 $ 605.34 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.

8 605.39 Private education programs.

(a) A recipient that operates a private elementary or secondary education program may not, on the basis of handicap, exclude a qualified handicapped person from such program if the person can, with minor adjustments, be provided an appropriate education, as defined in § 605.33(b)(1), within the recipient's program.

(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 operates special education programs shall operate such programs in accordance with the provisions of $$ 605.35 and 605.36. Each recipient to which this section applies is subject to the provisions of $ $ 605.34, 605.37 and 605.38.

8 605.40 (Reserved)

Subpart E-Postsecondary Education

8 605.41 Application of this subpart.

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

$ 605.42 Admissions and recruitment. or when a recipient is taking voluntary

(a) General. Qualified handicapped action to overcome the effects of conpersons may not, on the basis of

asis of ditions that resulted in limited particihandicap, be denied admission or be

pation in its federally assisted prosubjected to discrimination in admis gram or activity pursuant to $ 605.6(6), sion or recruitment by a recipient to the recipient may invite applicants for which this subpart applies.

admission to indicate whether and to (b) Admissions. In administering its what extent they are handicapped, admission policies, a recipient to Provided, That: which this subpart applies:

(1) The recipient states clearly on (1) May not apply limitations upon any written questionnaire used for the number or proportion of handi- this purpose or makes clear orally if capped persons who may be admitted; no written questionnaire is used that

(2) May not make use of any test or the information requested is intended criterion for admission that has a dis- for use solely in connection with its reproportionate, adverse effect on medial action obligations or its volunhandicapped persons or any class of tary action efforts; and handicapped persons unless (i) the test

(2) The recipient states clearly that or criterion, as used by the recipient,

the information is being requested on has been validated as a predictor of

a voluntary basis, that it will be kept success in the education program or

confidential, that refusal to provide it activity in question and (ii) alternate will not subject the applicant to any tests or criteria that have a less dispro

adverse treatment, and that it will be portionate, adverse effect are not

used only in accordance with this part. shown by the Director to be available.

(d) Validity studies. For the purpose (3) Shall assure itself that (i) admis

of paragraph (b)(2) of this section, a sions tests are selected and adminis

recipient may base prediction equatered so as best to ensure that, when a

tions on first year grades, but shall test is administered to an applicant

conduct periodic validity studies who has a handicap that impairs sen

against the criterion of overall success sory, manual, or speaking skills, the test results accurately reflect the ap

in the education program or activity in plicant's aptitude or achievement level

question in order to monitor the gen

eral validity of the test scores. or whatever other factor the test purports to measure, rather than reflect

8 605.43 Treatment of students; general. ing the applicant's impaired sensory, manual, or speaking skills (except

(a) No qualified handicapped stuwhere those skills are the factors that dent shall, on the basis of handicap, be the test purports to measure); (ii) ad- excluded from participation in, be missions tests that are designed for

denied the benefits of, or otherwise be persons with impaired sensory, subjected to discrimination under any manual, or speaking skills are offered academic, research, occupational trainas often and in as timely a manner as ing, housing, health insurance, counare other admissions tests; and (iii) ad seling, financial aid, physical educamissions tests are administered in tion, athletics, recreation, transportafacilities that, on the whole, are acces tion, other extracurricular, or other sible to handicapped persons; and

postsecondary education program or (4) Except as provided in paragraph activity to which this subpart applies. (c) of this section, may not make (b) A recipient to which this subpart preadmission inquiry as to whether an applies that considers participation by applicant for admission is a handi- students in education programs or accapped person but, after admission, tivities not operated wholly by the remay make inquiries on a confidential cipient as part of, or equivalent to, an basis as to handicaps that may require education program or activity operataccommodation.

ed by the recipient shall assure itself (c) Preadmission inquiry exception that the other education program or When a recipient is taking remedial activity, as a whole, provides an equal action to correct the effects of past opportunity for the participation of discrimination pursuant to $ 605.6(a) qualified handicapped persons.

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