C.F.R. » Title 34 » 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 › Subpart D—Preschool, Elementary, and Secondary Education

34 C.F.R. § 104.33

Free appropriate public education

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(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) 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 §§ 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 § 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 § 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]
Notes of Decisions
Cited in 223 cases (41 in the last 5 years), 1981–2026 · leading case: Mark H. v. Hamamoto, 620 F.3d 1090 (9th Cir. 2010).
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Mark H. v. Hamamoto, 620 F.3d 1090 (9th Cir. 2010). · cites it 12× “Family alleged that Hawaii DOE violated Rehabilitation Act § 504 by: (1) failing to provide the girls with the reasonable accommodation of their disabilities in the form of autism-specific special education services, and (2) failing to design the girls’ IEPs to meet the girls’…”
A.G. Ex Rel. Grundemann v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195 (9th Cir. 2016). · cites it 6× “” 34 C.F.R. § 104.33 (a); Lema-hieu, 513 F.”
Blunt v. Lower Merion Sch. Dist., 767 F.3d 247 (3rd Cir. 2014). · cites it 4× “42 We have explained that this means “a school 42 34 C.F.R. § 104.33 provides: (a) General.”
Mark H. Ex Rel. Michelle H. v. Lemahieu, 513 F.3d 922 (9th Cir. 2008). · cites it 6× “” 34 C.F.R. § 104.33 . The parties and the district court have assumed throughout this litigation that a violation of the IDEA statutory FAPE requirement necessarily constitutes a violation of the § 504 regulations’ FAPE requirement, an understandable assumption given the use of…”
Lower Merion Sch. Dist. v. Doe, 878 A.2d 925 (Pa. Commw. Ct. 2005). · cites it 18× “34 C.F.R. § 104.33 (a) (emphasis added). Section 504's federal regulations define an "appropriate education" as "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…”
Est. of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982 (5th Cir. 2014). · cites it 5× “” 34 C.F.R. § 104.33 (b)(1). The Department of Education described § 504’s FAPE requirement as “generally conforming] to the standards established for the education of handicapped persons in [IDEA].”
K.M. Ex Rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088 (9th Cir. 2013). · cites it 4× “In the first line of cases, we have identified a partial overlap between the statutory FAPE provision under the IDEA and a similar provision within the Section 504 regulations promulgated by the Department of Education, requiring schools receiving federal funds to provide “a…”
Lexyington McIntyre v. Eugene Sch. Dist. 4j, 976 F.3d 902 (9th Cir. 2020). · cites it 4× “” 34 C.F.R. § 104.33 (a). The FAPE requirements in the IDEA and in Section 504 are “overlapping but different.”
M.H. Ex Rel. M.H. v. Montana High Sch. Ass'n, 929 P.2d 239 (Mont. 1996). · cites it 10× “The appendix to the OPI guidelines includes the text of 34 C.F.R. § 104.33 (b), which defines what constitutes an "appropriate education" under § 504 and provides, in relevant part: (1) For the purpose of this subpart, the provision of an appropriate education is the provision…”
Bryant Ex Rel. D.B. v. New York State Educ. Dep't, 692 F.3d 202 (2d Cir. 2012). · cites it 2× “(quoting 34 C.F.R. § 104.33 (a)). This obligation can be satisfied by, inter alia, providing the student an IEP.”
Lyons Ex Rel. Alexander v. Smith, 829 F. Supp. 414 (D.D.C. 1993). · cites it 6× “” 9 34 C.F.R. § 104.33 (b)(1). 10 These regulations also require that a recipient of federal funds provide handicapped persons with a system of procedural safeguards, including an impartial hearing and review procedure.”
Ridley Sch. Dist. v. M.R., 680 F.3d 260 (3rd Cir. 2012). · cites it 2× “3d at 492 -93 (quoting 34 C.F.R. § 104.33 (a)). To offer an “appropriate” education under the Rehabilitation Act, a school district must reasonably accommodate the needs of the handicapped child so as to ensure meaningful participation in educational activities and meaningful…”
Show all 223 citing cases →
— 34 C.F.R. § 104.33(a) — 4 cases
M.Y. Ex Rel. J.Y. v. Special Sch. Dist. No. 1, 544 F.3d 885 (8th Cir. 2008).
Dl v. Dist. of Columbia, 845 F. Supp. 2d 1 (D.D.C. 2011).
Thomas Bradley, as Nat. Guardian Of, & on Behalf of David Bradley, a Minor Dianna Bradley, as Nat. Guardian Of, & on Behalf of David Bradley, a Minor - United States of Am., Intervenor on Appeal v. Arkansas Dep't of Educ. Mike Crowley, Individually & in His Capacity as an Emp. of the Arkansas Dep't of Educ. - Williford Sch. Dist. 39 John Does, 1-10, Advocacy Servs., Inc., Amicus Curiae. Jim C, Individually & as Parent & Next Friend of J.C. Susan C, Individually & as Parent & Next Friend of J.C. - United States of Am., Intervenor on Appeal v. Atkins Sch. Dist. Arch Ford Educ. Serv. Coop. Arkansas Dep't of Educ., 189 F.3d 745 (8th Cir. 1999).
M.Y., etc. v. Special Sch. Dist. (8th Cir. 2008).
— 34 C.F.R. § 104.33(b) — 1 case
Brougham Ex Rel. Brougham v. Town of Yarmouth, 823 F. Supp. 9 (D. Me. 1993).
— 34 C.F.R. § 104.33(b)(1) — 3 cases
M.Y. Ex Rel. J.Y. v. Special Sch. Dist. No. 1, 544 F.3d 885 (8th Cir. 2008).
Robert Allen, et al. v. Lewisville Indep. Sch. Dist. (E.D. Tex. 2026).
M.Y., etc. v. Special Sch. Dist. (8th Cir. 2008).
— 34 C.F.R. § 104.33(b)(2) — 3 cases
M.Y. Ex Rel. J.Y. v. Special Sch. Dist. No. 1, 544 F.3d 885 (8th Cir. 2008).
W. v. West Chester Area Sch. Dist. (E.D. Pa. 2024).
M.Y., etc. v. Special Sch. Dist. (8th Cir. 2008).
— 34 C.F.R. § 104.33(b)(l)(i) — 1 case
Wiles v. Dep't of Educ., 555 F. Supp. 2d 1143 (D. Haw. 2008).
— 34 C.F.R. § 104.33(c)(3) — 2 cases
Freeman v. Cavazos, 939 F.2d 1527 (11th Cir. 1991).
Freeman v. Cavazos, 939 F.2d 1527 (11th Cir. 1991).
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