34 C.F.R. § 104.3

Definitions

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As used in this part, the term:

(a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, 29 U.S.C. 794.

(b) Section 504 means section 504 of the Act.

(c) Education of the Handicapped Act means that statute as amended by the Education for all Handicapped Children Act of 1975, Pub. L. 94-142, 20 U.S.C. 1401 et seq.

(d) Department means the Department of Education.

(e) Assistant Secretary means the Assistant Secretary for Civil Rights of the Department of Education.

(f) Recipient means any state or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance.

(g) Applicant for assistance means one who submits an application, request, or plan required to be approved by a Department official or by a recipient as a condition to becoming a recipient.

(h) Federal financial assistance means any grant, loan, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which the Department provides or otherwise makes available assistance in the form of:

(1) Funds;

(2) Services of Federal personnel; or

(3) Real and personal property or any interest in or use of such property, including:

(i) Transfers or leases of such property for less than fair market value or for reduced consideration; and

(ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government.

(i) Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, or other real or personal property or interest in such property.

(j) Handicapped person—(1) Handicapped persons means 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.

(2) As used in paragraph (j)(1) of this section, the phrase:

(i) Physical or mental impairment means (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

(ii) Major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

(iii) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

(iv) Is regarded as having an impairment means (A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (C) has none of the impairments defined in paragraph (j)(2)(i) of this section but is treated by a recipient as having such an impairment.

(k) Program or activity means all of the operations of—

(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or

(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;

(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or

(ii) A local educational agency (as defined in 20 U.S.C. 8801), system of vocational education, or other school system;

(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—

(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or

(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or

(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or

(4) Any other entity which is established by two or more of the entities described in paragraph (k)(1), (2), or (3) of this section; any part of which is extended Federal financial assistance.

(Authority: 29 U.S.C. 794(b))

(l) Qualified handicapped person means:

(1) With respect to employment, a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question;

(2) With respect to public preschool elementary, secondary, or adult educational services, a handicapped person (i) of an age during which nonhandicapped persons are provided such services, (ii) of any age during which it is mandatory under state law to provide such services to handicapped persons, or (iii) to whom a state is required to provide a free appropriate public education under section 612 of the Education of the Handicapped Act; and

(3) With respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the recipient's education program or activity;

(4) With respect to other services, a handicapped person who meets the essential eligibility requirements for the receipt of such services.

(m) Handicap means any condition or characteristic that renders a person a handicapped person as defined in paragraph (j) of this section.

[45 FR 30936, May 9, 1980, as amended at 65 FR 68054, Nov. 13, 2000; 82 FR 31912, July 11, 2017]

Notes of Decisions

Cited in 139 cases (29 in the last 5 years), 1981–2026 · leading case: Natalie Slaughter v. Des Moines Univ. Coll. of Osteopathic Med., 925 N.W.2d 793 (Iowa 2019).

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Natalie Slaughter v. Des Moines Univ. Coll. of Osteopathic Med., 925 N.W.2d 793 (Iowa 2019). · cites it 2× “2d at 334 (defining “qualified individual” under the Rehabilitation Act as someone “who meets the academic and technical standards requisite to admission or participation in the recipient’s education program or activity,” 34 C.F.R. § 104.3 (l)(3) (2013), and defining a…”

Bowers v. Nat'l Collegiate Athletic Ass'n, 563 F. Supp. 2d 508 (D.N.J. 2008). · cites it 5× “” 34 C.F.R. § 104.3 (j)(l). As these separate statutory treatments of the terms “disability” and “handicapped” make clear, “[a] special education student is not necessarily a ‘qualified individual with a disability’ ” under the Rehabilitation Act.”

Nicholas Knapp v. Nw. Univ., an Illinois Not-For-Profit Corp., & Rick Taylor, 101 F.3d 473 (7th Cir. 1997). · cites it 4× “34 C.F.R. § 104.3 (j)(2)(i)(A); 45 C.F.R.”

Reed v. Columbia St. Mary's Hosp., 915 F.3d 473 (7th Cir. 2019). “§ 705 (20)(B) ; 34 C.F.R. § 104.3 (j)(2)(ii) ; 45 C.F.R. § 84.”

Kenneth & Karen Rothschild v. Charles Grottenthaler, Superintendent of the Ramapo Cent. Sch. Dist., & Ramapo Cent. Sch. Dist., 907 F.2d 286 (2d Cir. 1990). · cites it 3× “The School District does not seriously contest that the Rothschilds are denied the opportunity to participate in school-initiated activities concerning their children’s education by reason of their handicaps.”

J.A.M. v. Nova Se. Univ., Inc., 646 F. App'x 921 (11th Cir. 2016). · cites it 2× “In the context of postsecondary education, an “otherwise qualified” individual must be able to meet the academic and technical standards requisite to admission or participation in the education program or activity, in spite of his handicap.”

M. Pam Davis v. Univ. of North Carolina, at Wilmington Robert E. Tyndall, ph.d., 263 F.3d 95 (4th Cir. 2001). · cites it 2× “104 (2000) (ADA regulation defining "major life activities" as including "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working"); 34 C.F.R. § 104.3 ~j)(2)(ii) (2000) (Rehabilitation Act regulation similarly defining…”

Lower Merion Sch. Dist. v. Doe, 878 A.2d 925 (Pa. Commw. Ct. 2005). · cites it 4× “§ 794 (b)(2)(B) and (b)(3)(A)(ii); 34 C.F.R. § 104.3 (k)(2)(ii) and (k)(3)(i)(B) (emphasis added).”

M.H. Ex Rel. M.H. v. Montana High Sch. Ass'n, 929 P.2d 239 (Mont. 1996). · cites it 4× “" See 34 C.F.R. § 104.3 (j). A student who meets all of the criteria of § 504 must be provided an opportunity to participate in extracurricular activities, such as interscholastic athletic competitions, which is equal to that of other students.”

Jill Babcock v. State of Mich., 812 F.3d 531 (6th Cir. 2016). “See 34 C.F.R. § 104.3 (i), (k) (defining “facility” as “all or any portion of buildings, structures, equipment, roads, walks, parking lots, or other real or personal property or interest in such property” and “[p]rogram or activity” as the “operations” of a “department, agency,…”

Dist. 27 Cmty. Sch. Bd. v. Bd. of Educ., 130 Misc. 2d 398 (N.Y. Sup. Ct. 1986). · cites it 4× “) The regulations that have been promulgated under the Rehabilitation Act define "physical or mental impairment” to mean "(A) any physiological disorder or condition * * * affecting one or more of the following body systems * * * hemic and lymphatic” (34 CFR 104.3 [j] [2] [i]…”

Rothschild v. Grottenthaler, 716 F. Supp. 796 (S.D.N.Y. 1989). · cites it 4× “In support of its position, the defendant directs the court to 34 C.F.R. § 104.3 (k)(2). That section defines a qualified handicapped person with respect to public elementary schools, secondary schools and adult education.”

Show all 139 citing cases →

— 34 C.F.R. § 104.3(2)(ii) — 1 case

Marshall v. Sisters of Holy Fam. of Nazareth, 399 F. Supp. 2d 597 (E.D. Pa. 2005).

— 34 C.F.R. § 104.3(j) — 1 case

Marshall v. Sisters of Holy Fam. of Nazareth, 399 F. Supp. 2d 597 (E.D. Pa. 2005).

— 34 C.F.R. § 104.3(j)(1) — 1 case

Lincoln-Sudbury Reg'l Sch. Dist. v. Mr. & Mrs. W. (D. Mass. 2018).

— 34 C.F.R. § 104.3(j)(2)(i) — 2 cases

P.C. ex rel. K.C. v. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y 2011).

Lincoln-Sudbury Reg'l Sch. Dist. v. Mr. & Mrs. W. (D. Mass. 2018).

— 34 C.F.R. § 104.3(j)(2)(ii) — 2 cases

Abdo v. Univ. of Vermont, 263 F. Supp. 2d 772 (D. Vt. 2003).

Lincoln-Sudbury Reg'l Sch. Dist. v. Mr. & Mrs. W. (D. Mass. 2018).

— 34 C.F.R. § 104.3(j)(l) — 1 case

Barnes v. Zaccari, 757 F. Supp. 2d 1313 (N.D. Ga. 2010).

— 34 C.F.R. § 104.3(k) — 1 case

Kenneth & Karen Rothschild v. Charles Grottenthaler, Superintendent of the Ramapo Cent. Sch. Dist., & Ramapo Cent. Sch. Dist., 907 F.2d 286 (2d Cir. 1990). “The School District does not seriously contest that the Rothschilds are denied the opportunity to participate in school-initiated activities concerning their children’s education by reason of their handicaps.”

— 34 C.F.R. § 104.3(k)(2) — 1 case

Rothschild v. Grottenthaler, 716 F. Supp. 796 (S.D.N.Y. 1989). “In support of its position, the defendant directs the court to 34 C.F.R. § 104.3 (k)(2). That section defines a qualified handicapped person with respect to public elementary schools, secondary schools and adult education.”

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