Hello. Please sign in!

34 CFR Part 104 Discrimination on the Basis of Disability in Federally Assisted Programs and Activities - Notice of Interpretation

Section 504

Education implements the requirements of Section 504 of the Rehabilitation Act of 1973 (Section 504),[1] which prohibits discrimination on the basis of disability [2] in federally assisted programs or activities, through regulations in 34 CFR part 104. Education's Section 504 regulations apply to recipients to which the Department extends Federal financial assistance. Among other things, Education's Section 504 regulations prohibit denial of the benefits of, exclusion from participation in, or other discrimination against qualified individuals with disabilities in programs or activities because a recipient's facilities are inaccessible to or unusable by persons with disabilities.[3]

Education's Section 504 regulations require that if construction of a recipient's facility commenced after the effective date of the regulations (June 3, 1977) [4] the facility must be designed and constructed so that it is readily accessible to and usable by persons with disabilities.[5] These regulations also require that facility alterations commenced after June 3, 1977, that affect or may affect the facility's usability must be accomplished so that, to the maximum extent feasible, the altered portion of the facility is readily accessible and usable by persons with disabilities.[6]

For facilities subject to the new construction and alterations requirements, 34 CFR 104.23(c) has always incorporated by reference an accessibility design standard, such that construction or alterations in conformance with that standard would be deemed compliance with Education's Section 504 regulations.[7] Under the current regulations, at 34 CFR 104.23(c), new construction or alterations made in conformance with the Uniform Federal Accessibility Standards (UFAS) are deemed to be in compliance with Education's Section 504 regulations, although a recipient may depart from UFAS when other methods provide equivalent or greater access to and usability of the facility.[8]

The adoption of UFAS as an accessibility design standard in Education's Section 504 regulations occurred in 1991 as part of a joint rulemaking with other Federal agencies, led by the Department of Justice (DOJ) pursuant to its coordinating authority for Section 504 under Executive Order 12250. We and the other participating agencies adopted UFAS (effective January 18, 1991) to diminish the possibility that some recipients of Federal financial assistance would face conflicting enforcement standards either between Section 504 and the Architectural Barriers Act of 1968,[9] or among the Section 504 regulations of different Federal agencies.[10] In addition, after DOJ adopted the 1991 ADA Accessibility Standards for compliance with Title II of the ADA, Education permitted entities subject to our Section 504 regulation and the ADA to use the 1991 Standards, except that the elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(k) does not apply.[11]

1.29 U.S.C. 794.

2.  In this notice, we use the term “disability,” the term that is currently used by Congress in legislation, in place of the term “handicap,” which was used in the 1973 statute and our 1977 regulations. There is no substantive difference.


3.  34 CFR 104.21.

4.  The former Department of Health, Education, and Welfare issued section 504 regulations, including this provision, with an effective date of June 3, 1977. See 45 CFR part 84 (1978). Upon the establishment of the Department of Education, 20 U.S.C. 3401 et seq., we adopted those regulations without substantive change.


5.  34 CFR 104.23(a) provides: 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 * * * persons [with disabilities], if the construction was commenced after the effective date of this part.

6.  34 CFR 104.23(b) provides: 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 * * * persons [with disabilities].


7.  34 CFR 104.23(c). This section, in its entirety, provides: Conformance with Uniform Federal Accessibility Standards.

(1) Effective as of January 18, 1991, design, construction, or alteration of buildings in conformance with sections 3-8 of the Uniform Federal Accessibility Standards (UFAS) (Appendix A to 41 CFR subpart 101-19.6) shall be deemed to comply with the requirements of this section with respect to those buildings. Departures from particular technical and scoping requirements of UFAS by the use of other methods are permitted where substantially equivalent or greater access to and usability of the building is provided.

(2) For the purposes of this section, section 4.1.6(1)(g) of UFAS shall be interpreted to exempt from the requirements of UFAS only mechanical rooms and other spaces that, because of their intended use, will not require accessibility to the public or beneficiaries or result in the employment or residence therein of persons with physical [disabilities].

(3) This section does not require recipients to make building alterations that have little likelihood of being accomplished without removing or altering a load-bearing structural member.

8.  34 CFR 104.23(c)(1).

9.  The Architectural Barriers Act of 1968 (ABA), 42 U.S.C. 4151-4157, directed four agencies, the General Services Administration, the Department of Housing and Urban Development, the Department of Defense, and the United States Postal Service, to establish accessibility standards for the design, construction, and alteration of certain Federal and federally funded buildings. The four agencies adopted UFAS as the ABA standard in 1984.

10.  55 FR 52136-37 (1990).

11.  See “Major Differences Between the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities and the Uniform Federal Accessibility Standards,” Office for Civil Rights (OCR), U.S. Department of Education, September 1993, at 4. This technical assistance handout was distributed as an attachment to a September 17, 1993, memorandum from Norma V. Cantu, Assistant Secretary for Civil Rights, to OCR Senior Staff, with instructions that it was designed to accompany technical-assistance presentations on the issue of accessibility and that OCR staff should disseminate copies to interested persons.


*You must sign in to view [MORE INFO...]