[Federal Register Volume 68, Number 217 (Monday, November 10, 2003)]
[Notices]
[Pages 63932-63971]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28174]



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Part IV





Department of Education





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South Carolina Department of Health and Environmental Control; Written 
Findings and Compliance Agreement Under the Infants and Toddlers With 
Disabilities Program--Part C of the Individuals With Disabilities 
Education Act; Notice

  Federal Register / Vol. 68, No. 217 / Monday, November 10, 2003 / 
Notices  

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DEPARTMENT OF EDUCATION


South Carolina Department of Health and Environmental Control; 
Written Findings and Compliance Agreement Under the Infants and 
Toddlers With Disabilities Program--Part C of the Individuals With 
Disabilities Education Act

AGENCY: Office of Special Education Programs, Office of Special 
Education and Rehabilitative Services, Department of Education.

ACTION: Notice of written findings and compliance agreement.

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SUMMARY: Section 457 of the General Education Provisions Act (GEPA) 
authorizes the U.S. Department of Education (Department) to enter into 
a compliance agreement with a recipient that is failing to comply 
substantially with Federal program requirements. In order to enter into 
a compliance agreement, the Department must determine, in written 
findings, that the recipient cannot comply until a future date with the 
applicable program requirements and that a compliance agreement is a 
viable means of bringing about such compliance. On September 9, 2003, 
the Department entered into a compliance agreement with the South 
Carolina Department of Health and Environmental Control (DHEC). Under 
section 457(b)(2) of GEPA, the written findings and compliance 
agreement must be published in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Jacquelyn Twining-Martin, U.S. 
Department of Education, Office of Special Education Programs, 330 C 
Street, NW., room 3316, Washington, DC 20202. Telephone (202) 205-8258.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: Under Part C of the Individuals with 
Disabilities Education Act (Part C), the Department provides funds to 
States to, and the State must then, ``maintain and implement a 
statewide, comprehensive, coordinated, multidisciplinary, interagency 
system to provide early intervention services for infants and toddlers 
with disabilities and their families.'' 20 U.S.C. 1433, 1435(a)(2), 
1437(a)(3)(A); 34 CFR 303.1 and 303.160. Early intervention services 
are services that are, among other things, ``designed to meet the 
developmental needs of an infant or toddler with a disability in any 
one or more of the following areas--(i) physical development; (ii) 
cognitive development; (iii) communication development; (iv) social or 
emotional development; or (v) adaptive development''; ``are provided by 
qualified personnel''; ``to the maximum extent appropriate, are 
provided in natural environments, including the home, and community 
settings in which children without disabilities participate''; and 
``are provided in conformity with an individualized family service plan 
adopted in accordance with section 1436 of this title.'' 20 U.S.C. 
1432(4)(C), (F), (G) and (H).
    On January 6, 2003, following an on-site monitoring visit to South 
Carolina (SC) in February 2002 by the Department's Office of Special 
Education Programs (OSEP), OSEP issued a final monitoring report that 
documented non-compliance by the SC DHEC with Part C. The monitoring 
report identified DHEC's failure to meet its responsibilities under 
Part C. Specifically, the monitoring report identified DHEC's failure 
to:
    (1) Meet its general supervision responsibilities and monitor for 
compliance with regard to all requirements of Part C;
    (2) Ensure that a coordinated child find and public awareness 
system results in the identification of all eligible infants and 
toddlers with disabilities;
    (3) Ensure that all infants and toddlers referred to Part C receive 
timely and comprehensive evaluations in all five developmental areas 
such that evaluations and assessments are completed within 45 days of 
referral to enable the initial Individualized Family Service Plan 
(IFSP) team meeting to be convened in that time period;
    (4) Ensure that all early intervention services needed by an 
eligible infant or toddler with a disability and the child's family are 
identified on the IFSP and provided in a timely manner; and
    (5) Conduct timely and content-appropriate transition planning 
including transition meetings for children who are transitioning from 
Part C.
    On April 19, 2002, DHEC requested to enter into a compliance 
agreement with the Department. The purpose of a compliance agreement is 
``to bring the recipient into full compliance with the applicable 
requirements of law as soon as feasible and not to excuse or remedy 
past violations of such requirements.'' 20 U.S.C. 1234f(a). Before 
entering into a compliance agreement, the Department must hold a 
hearing at which the recipient, individuals affected by any potential 
compliance agreement, including infants and toddlers with disabilities 
and their families or other representatives, and other interested 
parties are invited to participate. In that hearing, the recipient has 
the burden of persuading the Department that full compliance with the 
applicable requirements of law is not feasible until a future date and 
that a compliance agreement is a viable means for bringing about such 
compliance in no more than three years. 20 U.S.C. 1234f(b)(1), (c). If, 
on the basis of all the evidence available to it, the Secretary 
determines that the recipient has met that burden, the Secretary is to 
make written findings to that effect and publish those findings, 
together with the substance of the compliance agreement, in the Federal 
Register. 20 U.S.C. 1234f(b)(2).
    At a May 1, 2003 hearing conducted by Department officials, 
witnesses representing DHEC, families of infants and toddlers with 
disabilities, and other concerned organizations (including State 
agencies and other stakeholders) testified on the question of whether 
the Department should grant DHEC's request to enter into a compliance 
agreement. Additional written testimony was submitted to the Department 
by families of infants and toddlers with disabilities and children with 
disabilities and concerned organizations both prior to and after the 
public hearing. On September 9, 2003, the Department, after reviewing 
all oral and written testimony submitted and other relevant materials, 
issued the attached Written Findings and Decision (Decision) of the 
Secretary as required under 20 U.S.C. 1234f(b)(2). As noted in the 
Decision, the Department has determined that DHEC has met its burden of 
establishing the following: (1) That compliance by DHEC with Part C is 
not feasible until a future date, and (2) that DHEC will be able to 
carry out the terms and conditions of the compliance agreement it has 
signed (Compliance Agreement) and will come into full compliance with 
Part C within three years of the date of the Decision. During the 
effective period of the Compliance Agreement, which expires three years 
from the date of the Decision, DHEC will be eligible to receive Part C 
funds as long as it complies with all the terms and conditions of the 
Compliance Agreement.

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    As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), 
the text of the Secretary's Decision is set forth as Appendix A and the 
Compliance Agreement is set forth as Appendix B of this notice.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in Text or Adobe 
Portable Document Format (PDF), on the Internet at the following site: 
http://www.ed.gov/news/fedregister.
    To use PDF, you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO) toll free, at 1-888-293-6498; or in 
the Washington, DC area at (202) 512-1530.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register is available on GPO access 
at: http://www.gpoaccess.gov/nara/index.html.


(Authority: 20 U.S.C. 1234c, 1234f, 1431 through 1445)

    Dated: October 22, 2003.
Troy R. Justesen,
Acting Assistant Secretary for Special Education and, Rehabilitative 
Services.

Appendix A--Text of the Written Findings and Decision of the Secretary 
of Education

I. Introduction

    The United States Department of Education (Department) has 
determined, pursuant to 20 U.S.C. 1234c, that the South Carolina 
Department of Health and Environmental Control (DHEC) has failed to 
comply substantially with the requirements of Part C of the Individuals 
with Disabilities Education Act (Part C or IDEA), 20 U.S.C. 1401, 
14311-1445.\1\ On January 6, 2003, the Department issued a final 
monitoring report for South Carolina (SC) that documented DHEC's 
failure to comply with Part C in its provision of early intervention 
services to infants and toddler with disabilities and their families. 
Specifically, DHEC has failed to:
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    \1\ Under the Department of Education Organization Act (DEOA), 
Congress transferred the administration of the IDEA from the 
Commissioner of Education to the Secretary of Education. 20 U.S.C. 
3441(a)(1) and (a)(2)(H). Section 207 of the DEOA, 20 U.S.C. 3417, 
in turn delegates responsibility for IDEA to the Assistant Secretary 
for Special Education and Rehabilitative Services. The Office of 
Special Education Programs (OSEP), which is part of the Office of 
Special Education and Rehabilitative Services, is the office within 
the Department that is primarily responsible for administering Part 
C of the IDEA. 20 U.S.C. 1402(a).
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    (1) Meet its general supervision responsibilities and monitor for 
compliance with regard to all requirements of Part C, including 
appropriately administering the Part C program, monitoring State 
agencies, institutions, organizations and private providers that are 
part of the Part C system, and enforcing obligations against and 
providing training and technical assistance to all such entities and 
individuals, when identified as part of a required improvement 
strategy;
    (2) Ensure that a coordinated child find system results in the 
identification of all eligible infants and toddlers with disabilities 
and that public awareness materials about the infants and toddlers with 
disabilities program are made available to the public, including rural, 
minority and underrepresented populations;
    (3) Ensure that all infants and toddlers referred to Part C receive 
timely and comprehensive evaluations in all five developmental areas 
such that evaluations and assessments are completed within 45 days of 
referral to enable the initial Individualized Family Service Plan 
(IFSP) team meeting to be convened in that time period;
    (4) Ensure that all early intervention services needed by an 
eligible infant or toddler with a disability and the child's family are 
identified on the IFSP and provided in a timely manner; and
    (5) Conduct timely and content-appropriate transition planning 
including transition meetings for children who are transitioning from 
Part C.
    As a consequence, the Department concluded, pursuant to the General 
Education Provisions Act (GEPA) at 20 U.S.C. 1234c, that DHEC is not 
complying with Part C.
    On April 19, 2002, DHEC requested the Department enter into a 
compliance agreement with DHEC as a means of ensuring a continued flow 
of Part C funds to South Carolina while a structured plan to come into 
full compliance with Part C is implemented. On May 1, 2003, Department 
officials conducted a public hearing in South Carolina in accordance 
with the GEPA requirements of 20 U.S.C. 1234f(b), at which oral and 
written testimony were received. Witnesses representing DHEC, affected 
families of infants and toddlers with disabilities, and other concerned 
organizations (including State stakeholders) testified at this hearing 
on the question of whether the Department should grant DHEC's request 
to enter into a Compliance Agreement. Additional written testimony was 
submitted to the Department by affected families, and concerned 
organizations both prior to and after the public hearing. The 
Department has reviewed all oral and written testimony submitted, the 
Compliance Agreement DHEC has signed, and other relevant materials.\2\ 
On the basis of this evidence, the Department concludes, and issues 
these written findings as required by 20 U.S.C. 1234f(b)(2), that DHEC 
has met its burden of establishing the following: (1) That compliance 
by DHEC with Part C is not feasible until a future date, and (2) that 
DHEC will be able to carry out the terms and conditions of the 
Compliance Agreement it has signed and will come into full compliance 
with Part C within three years of the date of this decision. During the 
effective period of the Compliance Agreement, which expires three years 
from the date of this decision, DHEC will be eligible to receive Part C 
funds as long as it complies with all the terms and conditions of the 
Agreement.
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    \2\ A copy of the Compliance Agreement is appended to, and 
incorporated into, this decision as Attachment A.
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II. Legal Basis for Compliance Agreement: Requirements Under Part C and 
Under GEPA

A. Part C of the Individual With Disabilities Education Act

    Part C was passed in response to Congress' finding that ``there is 
an urgent and substantial need to enhance the development of infants 
and toddlers with disabilities and to minimize their potential for 
developmental delay.'' 20 U.S.C. 1431(a)(1). Congress established Part 
C ``to provide financial assistance to States to develop and implement 
a statewide, comprehensive, coordinated, multidisciplinary, interagency 
system that provides early intervention services for infants and 
toddlers with disabilities and their families.''\3\ 20 U.S.C. 
1441(b)(1). Early intervention services are defined as ``developmental 
services that'':
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    \3\ An ``infant or toddler with a disability'' ``(A) means an 
individual under 3 years of age who needs early intervention 
services because the individual (i) is experiencing developmental 
delays, as measured by appropriate diagnostic instruments and 
procedures in one or more of the areas of cognitive development, 
physical development, communication development, social or emotional 
development, and adaptive development; or (ii) has a diagnosed 
physical or mental condition which has a high probability of 
resulting in developmental delay; and (B) may also include, at a 
State's discretion, at-risk infants and toddlers.'' 20 U.S.C. 
1432(5).
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    (A) Are provided under public supervision;
    (B) Are provided at no cost except where Federal or State law 
provides for

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a system of payments by families, including a schedule of sliding fees;
    (C) Are designed to meet the developmental needs of an infant or 
toddler with a disability in any one or more of the following areas--
(i) physical development; (ii) cognitive development; (iii) 
communication development; (iv) social or emotional development; or (v) 
adaptive development;
    (D) Meet the standards of the State in which they are provided, 
including the requirements of this part;
    (E) Include [a list of early intervention services];
    (F) Are provided by qualified personnel';
    (G) To the maximum extent appropriate, are provided in natural 
environments, including the home, and community settings in which 
children without disabilities participate; and
    (H) Are provided in conformity with an individualized family 
service plan (IFSP) adopted in accordance with section 636 (20 U.S.C. 
1436). 20 U.S.C. 1432(4); 34 CFR 303.12.
    In order to ensure that all early intervention services are 
provided in compliance with Part C, a State must ensure that the Part C 
requirements regarding general supervision (including monitoring), 
child find and public awareness, timely evaluations and assessments, 
IFSP development, timely provision of early intervention services, and 
transition planning are met.
    The lead agency's general supervision responsibilities include 
monitoring, ensuring correction and enforcement, providing technical 
assistance and training and ensuring the provision of procedural 
safeguards through the due process and State complaint procedures. 20 
U.S.C. 1435(a)(1)(A); 34 CFR 303.500 through 303.512. The lead agency 
is required to ensure that all programs and activities used by the 
State to carry out Part C, whether or not they receive Part C funds, 
are monitored for compliance with Part C requirements and that 
interagency agreements are in place to ensure that services are 
provided in a timely manner. 20 U.S.C. 1435(a)(1)(A); 34 CFR 303.501 
and 303.523 through 303.528. When the lead agency determines that 
program providers and other agencies, institutions and organizations 
that are part of the Part C system in a State are not in compliance, 
Part C requires the lead agency to enforce the requirements of Part C 
and correct deficiencies that are identified through monitoring and its 
general supervision authority. 20 U.S.C. 1435(a)(1)(A); 34 CFR 
303.501(b)(2) and (4). The lead agency is also responsible for 
providing technical assistance and training to agencies, institutions 
and organizations that administer the Part C program. 20 U.S.C. 
1435(a)(1)(A); 34 CFR 303.501(b)(3). Part C requires that there be a 
single line of responsibility and clear interagency guidelines to 
ensure that one agency, the lead agency, is responsible for 
administering Part C in the State. 20 U.S.C. 1435(a)(1)(A); 34 CFR 
303.500. General supervision has been a challenge for DHEC due to the 
large number of agencies that provide some part of Part C services and 
the number of private contractors.
    The Part C general supervision requirement must be read in 
conjunction with DHEC's responsibility under GEPA at 20 U.S.C. 
1232d(b)(3), to adopt and use proper methods of administering the Part 
C program, including, among other requirements: (1) Monitoring of 
agencies, institutions, and organizations responsible for carrying out 
Part C; (2) the enforcement of the obligations imposed on those 
agencies, institutions, and organizations under Part C; (3) providing 
technical assistance, where necessary, to such agencies, institutions, 
and organizations; and (4) the correction of deficiencies in program 
operations that are identified through monitoring or evaluation.
    Other Part C requirements include ensuring that all infants and 
toddlers with disabilities and their families: Are timely referred into 
the program, are assigned a single service coordinator, are evaluated 
in all five developmental areas, and, if determined eligible, have 
IFSPs timely developed that address all content requirements, are 
timely provided those early intervention services and receive timely 
transition meetings and plans as they exit the program. This system is 
intended to be seamless so that an infant and toddler with a disability 
and the family receive all appropriate services to support them. DHEC's 
failure to ensure the provision of key components of the system have 
led to waiting lists for evaluations and assessments and early 
intervention services.

B. The Department's Authority To Enter Into a Compliance Agreement

    If a State fails to comply substantially with the requirements of 
Part C, the IDEA authorizes the Department to withhold funds from that 
State or refer the matter to the Department of Justice. 20 U.S.C. 
1416(a) and 1442. GEPA provides the Department with additional options 
for dealing with a grant recipient that it concludes is ``failing to 
comply substantially with any requirements of law applicable to such 
funds.'' 20 U.S.C. 1234c. These remedies include issuing a cease and 
desist order. 20 U.S.C. 1234c. As an alternative to withholding funds, 
issuing a cease and desist order, or referral to the Department of 
Justice, the Department may enter into a Compliance Agreement with a 
recipient that is failing to comply substantially with specific program 
requirements. 20 U.S.C. 1234f. In this instance, and at DHEC's request, 
the Department has decided to address DHEC's failure to comply 
substantially with the requirements of Part C through a Compliance 
Agreement.
    The purpose of a Compliance Agreement is ``to bring the recipient 
into full compliance with the applicable requirements of the law as 
soon as feasible and not to excuse or remedy past violations of such 
requirements.'' 20 U.S.C. 1234f(a). Before entering into a Compliance 
Agreement, the Department must hold a hearing at which the recipient, 
affected infants and toddlers with disabilities and their parents or 
their representatives, and other interested parties are invited to 
participate. In that hearing, the recipient has the burden of 
persuading the Department that full compliance with the applicable 
requirements of law is not feasible until a future date and that a 
Compliance Agreement is a viable means for bringing about such 
compliance in no more than three years. 20 U.S.C. 1234f(b)(1). If, on 
the basis of all the evidence available to it, the Secretary determines 
that the recipient has met that burden, he is to make written findings 
to that effect and publish those findings, together with the substance 
of the Compliance Agreement, in the Federal Register. 20 U.S.C. 
1234f(b)(2).
    A Compliance Agreement must set forth an expiration date not later 
than 3 years from the date of the Secretary's written findings under 20 
U.S.C. 1234f(b)(2), by which time the recipient must be in full 
compliance with all program requirements. In addition, the Compliance 
Agreement must contain the terms and conditions with which the 
recipient must comply during the period that the Agreement is in 
effect. 20 U.S.C. 1234f(c). If the recipient fails to comply with any 
of the terms and conditions of the Compliance Agreement, the Department 
may consider the Agreement no longer in effect and may take any action 
authorized by law, including withholding of funds, issuing of a cease 
and desist order, or referring the matter to the Department of Justice. 
20 U.S.C. 1234f(d).

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III. Analysis of DHEC'S Ability To Meet the Requirements of the 
Compliance Agreement

A. How the Department Determines Whether a Compliance Agreement Is 
Appropriate

    In determining whether it is appropriate to enter into a Compliance 
Agreement with DHEC, the Department must first determine two issues. 
First, the Department determines whether compliance by DHEC with Part C 
(including the requirements concerning general supervision including 
monitoring, child find and public awareness, timely and comprehensive 
evaluations, complete IFSP development, timely provision of early 
intervention services, and transition from Part C) is not immediately 
feasible. 20 U.S.C. 1234f(b). Second, the Department determines whether 
DHEC will be able to come into compliance with Part C within a period 
of no more than three years. If the Department cannot answer these 
questions in the affirmative, then it is inappropriate for the 
Department to enter into a Compliance Agreement between the Department 
and DHEC under 20 U.S.C. 1234f. In arriving at the terms of the 
Compliance Agreement, DHEC must not only come into full compliance by 
the end of the effective period of the Compliance Agreement, it must 
also make steady and measurable progress toward the Agreement's 
objectives while it is in effect.

B. DHEC Cannot Immediately Come Into Compliance With Part C 
Requirements

    DHEC's failure to comply with the requirements of Part C, as 
documented in OSEP's January 6, 2003 monitoring report and acknowledged 
by DHEC, is caused by a number of factors including the fact that early 
intervention services in South Carolina are provided through complex 
interagency and private contractor structures, and, as a result, cannot 
be corrected immediately. The witnesses who testified at the public 
hearings and the Department's experience in monitoring DHEC's early 
intervention program, BabyNet, provide compelling support for this 
conclusion.
1. DHEC Cannot Come Into Compliance Immediately With Those Part C 
Requirements That Were the Subject of OSEP's Findings
    As noted below and confirmed through the testimony of DHEC, parents 
and providers, DHEC is not in compliance now, and cannot immediately 
come into compliance, with the following specific Part C requirements 
that were findings in OSEP's January 6 2003 report:

--Employing proper methods of administering the Part C program, 
including monitoring all agencies, institutions, providers, and 
organizations used by SC to provide Part C services, enforcing Part C 
requirements against these entities and providing training and 
technical assistance;
--Ensuring a coordinated child find system and that public awareness 
materials are made available to the public;
--Ensuring that all infants and toddlers who are referred to Part C are 
evaluated in all five developmental areas within the required time 
frame;
--Ensuring that all eligible infants and toddlers with disabilities 
have IFSPs that are developed with the required content, the initial 
IFSP meeting is convened within 45 days of referral, and early 
intervention services listed on the IFSP are provided in a timely 
manner; and
--Conducting timely transition planning for all children by preparing a 
transition plan, holding a transition meeting and notifying the local 
educational agency (LEA) of children approaching the age of transition.
2. DHEC Testified That It Cannot Immediately Come Into Full Compliance 
With Part C Requirements Due to Three Major Long-Term Barriers
    DHEC acknowledged that it is not complying with Part C and cannot 
immediately come into compliance with Part C requirements. In his 
power-point presentation and written testimony, DHEC Presentation at 
Compliance Agreement Public Hearing, the DHEC BabyNet Director, David 
Steele, identified the following three principal barriers to its 
ability to come into immediate compliance with Part C: the lack of a 
monitoring system and interagency monitoring and cooperation, the lack 
of a reliable data system, and the lack of available qualified 
personnel. DHEC acknowledged that it does not have a systemic 
monitoring system to monitor all agencies, providers and programs that 
provide early intervention services in South Carolina and continues to 
have infants and toddlers on waiting lists for evaluations and 
assessments as well as for early intervention services in more than one 
geographic area. The need for interagency cooperation on all aspects of 
service delivery under the Part C system is a key challenge.
    One major barrier to immediate compliance is DHEC's need to 
establish a monitoring system, since South Carolina's statewide system 
of early intervention services involves efforts from six different 
State agencies as well as numerous private contractors. Six different 
agencies (including DHEC) conduct child find, evaluations and 
assessments, transition planning and provide service coordination and 
early intervention services. During the public hearings, DHEC officials 
testified that DHEC does not have a monitoring system to monitor its 
interagency partners or its private providers that conduct evaluations 
and transition planning and provide service coordination, and early 
intervention services. The only efforts DHEC had made to monitor its 
BabyNet program failed to identify and require correction of many 
important violations of Part C. DHEC also did not have any protocols 
for evaluating other agencies nor did it have uniform standards for 
training and services that were in compliance with Part C. DHEC is just 
now beginning to establish a mechanism for working with each of these 
agencies on an ongoing basis to coordinate all Part C activities 
including monitoring these agencies' compliance with Part C 
requirements and providing joint and collaborative training and 
technical assistance.
    DHEC cannot immediately address this barrier. The first critical 
step will be the development of memoranda of agreements that address 
each agency's responsibility in addressing Part C's requirements. 
Another critical step will be interagency cooperation to allow DHEC to 
monitor how each agency conducts child find, evaluations and 
assessments, and transition planning, and provides service coordination 
and early intervention services based on Part C standards. Jointly 
training agency staff, implementing a monitoring system and identifying 
noncompliance issues and developing appropriate corrective action steps 
are all necessary to address compliance issues.
    A second barrier is the need for DHEC to integrate and verify its 
new online web-based data system, which is a critical component of its 
monitoring system. DHEC officials testified that ensuring complete and 
accurate real-time data reporting that is necessary for program 
decision-making and accountability will take time. Securing baseline 
data under the new system is critical to DHEC's plan to identifying and 
addressing the root causes of the areas of noncompliance identified by 
OSEP. At the time of OSEP's monitoring visit, no information was 
collected by DHEC regarding private contractors who conducted 
evaluations and assessments and who provided early intervention 
services. DHEC intends for the new data

[[Page 63936]]

system to capture this information as well as information about the 
number of infants and toddlers on waiting lists for evaluations, early 
intervention services, and transition planning. Another goal of DHEC 
for its data system is to better track (with parent consent when 
needed) information about children who transition from Part C to Part B 
of the IDEA. Verifying the new data system will take DHEC more than one 
year and effectively incorporating the data system into its new 
monitoring system to verify both noncompliance areas and corrective 
action results will take DHEC longer.
    A third major barrier that affects DHEC's ability to comply with 
Part C is a lack of enough qualified personnel to conduct evaluations 
and assessments and provide early intervention services. DHEC testimony 
cited personnel recruitment and development issues as among the top 
three challenges for its program. DHEC cannot, acting on its own, 
rapidly resolve this personnel shortage. DHEC is unable to find 
providers who are willing to travel to some of South Carolina's more 
rural areas to provide services in the infant or toddler's home. South 
Carolina also is not competitive with its neighboring states in the 
remuneration it offers providers. In some professions, South Carolina 
is challenged to find qualified personnel and DHEC may need to develop 
long-term strategies including working with its higher education 
institutions to ensure that personnel are trained. Removing all these 
barriers to obtaining needed personnel will require a long-term and 
systematic effort on DHEC's part that will involve working with other 
organizations in South Carolina to review existing policies and 
practices so that effective strategies for training, recruiting and 
retaining qualified personnel for early intervention services can be 
implemented.
3. Testimony From Other SC Agency Representatives, Providers and 
Parents All Confirms DHEC Cannot Immediately Come Into Compliance
    Testimony from other individuals also confirmed that DHEC cannot 
come into full compliance with Part C immediately. Representatives from 
other South Carolina agencies that provide early intervention services, 
parents and individual providers of Part C services all testified that 
DHEC will need additional time to achieve full compliance.
    At least three witnesses at the hearing (from other South Carolina 
agencies) confirmed that DHEC needs more time to ensure interagency 
coordination among the six agencies that are part of the early 
intervention system in South Carolina. Susan Durrant, Director in the 
SC Department of Education (Division of Exceptional Children) cited the 
need for interagency coordination in the following areas in particular 
between the SC Department of Education and DHEC: (1) Making policies 
and procedures ``congruent''; (2) joint collaboration on child find; 
and (3) developing ``seamless services'' particularly as children 
transition from Part C to Part B. A representative of the Department of 
Disabilities Special Needs, who is a parent, testified about the need 
for her agency's joint collaboration on training with DHEC and the 
monitoring standards.
    A representative of the School for the Deaf and Blind identified 
one challenge unique to South Carolina, namely the ability to find 
available private contractors to address the needs of eligible infants 
and toddlers with disabilities who live in rural areas, since many 
providers are unwilling to travel to rural areas and remuneration for 
providers in these areas is not competitive. She stressed that 
coordination between BabyNet and the School for the Deaf and Blind must 
be on all issues (from general supervision to child find to evaluations 
to delivery of services and transition) since the School for the Deaf 
and Blind conducts all aspects of Part C (from evaluating infants and 
toddlers with disabilities and providing services to transition) and 
receives funding and training from DHEC and shares other resources with 
it. She noted that a key coordination challenge will be the use of both 
agencies' quality assurance staff to ensure that monitoring for 
compliance with Federal Part C requirements is conducted appropriately, 
using the correct standards, trained staff, with follow-up if 
noncompliance is identified.
    Other witnesses, including parents and providers, confirmed that 
DHEC continues to face long-term challenges in complying with Part C, 
including availability of qualified personnel to provide evaluations 
and assessments and early intervention services. Some parents who 
submitted testimony indicated they were frustrated with waiting lists 
for services, including speech and other therapy services, and noted 
that some services were not even available or offered. One parent of a 
recently diagnosed child with autism indicated there were waiting lists 
and that there was a problem with service providers being available for 
services such that he was forced to pay for private services himself. 
Another parent noted that child find in the Catawba Nation was a 
challenge for DHEC and ongoing transition training needs were 
necessary. Another parent noted that ``many systemic changes need to 
take place'' and that transition for children from Part C is an issue. 
Parents in oral and written testimony stated that the availability of 
services and waiting lists continue to be problems (Hearing 7, 
13). Michael Jameson, Vice-Chair of the State Interagency 
Coordinating Council (SICC) and a parent, testified that DHEC needed 
more time due to its need to develop a monitoring system that monitored 
all six agencies that provide Part C services and the numerous private 
contractors.
    Providers, including speech language pathologists, occupational 
therapists and physical therapists, also submitted testimony noting 
that timely provision of services was a problem due to ``limited 
availability of services, especially in the home environment.'' They 
noted that although BabyNet is in transition, the verification and 
integration of a new web-based data system and recruitment of short-
term and long-term qualified personnel to conduct evaluations and 
provide early intervention services were not quick fixes and would 
require more than one year, perhaps as many as three years. Providers 
stated that some of the changes made (development of a new policy and 
procedure manual, new IFSP form, and other training materials) as well 
as developing long-term personnel recruitment and retention policies 
and incentives would take at least two to three years to develop and 
fully implement. DHEC also acknowledged that monitoring to ensure that 
the new policies, forms and manuals were being effectively used would 
require the full three years.
    The evidence gathered by the Department at the public hearings and 
through its monitoring of DHEC's early intervention program establishes 
an extensive failure to meet the requirements of Part C. These problems 
are not isolated examples of non-compliance that can be quickly or 
easily corrected, but the outgrowth of systemic failures, for which 
systemic change is needed. The Department, therefore, concludes that 
DHEC cannot come into immediate compliance with the requirements of 
Part C.

C. DHEC Can Come Into Full Compliance With Part C Within Three Years

    The Department has concluded that DHEC can meet the terms and 
conditions of the attached Compliance Agreement and come into full

[[Page 63937]]

compliance with Part C within three years. The Compliance Agreement 
sets forth clear goals, outcomes and objectives, specific activities to 
reach those results, and timelines including target completion dates. 
Testimony at the hearing supports the conclusion that DHEC is committed 
to making the necessary changes to come into compliance with Part C. 
For example, the SICC Vice-Chair noted that DHEC had demonstrated its 
good faith and willingness to change by taking the few steps that were 
in its direct control immediately after OSEP's initial on-site 
monitoring visit. These steps included the development of brochures in 
English and Spanish and revision of the IFSP form. Providers also 
acknowledged that DHEC has demonstrated a commitment to change (``they 
have made many changes'' (Cree M. Lause, PT); ``it (DHEC) has been 
working steadily to correct the problems cited from OSEP's data 
collection visit (in February 2002).'' (Mary Gene H. White, SLP)). To 
ensure that DHEC remedies its noncompliance as soon as possible, the 
Compliance Agreement sets forth realistic and specific timelines for 
accomplishing each objective. DHEC officials testified that it has 
already implemented the following actions to address OSEP's findings of 
noncompliance:

--Development of an intra- and interagency policy/procedure manual;
--Detailed contracts for private contractor providers;
--Restructuring training for all six agency personnel on Part C 
requirements and compliance issues;
--Development and dissemination of new public awareness materials in 
English and Spanish;
--Development of model IFSP form to include all federally required 
elements including present levels of functioning;
--Completion of IFSP form use training by all service coordinators;
--Automatic referrals by SSI to DHEC; and
--Development of interagency transition policies and conducting follow-
up transition training.

    The actions that remain are long-term strategies to address the 
three principal barriers to DHEC's successful implementation of Part C. 
Thus, the Compliance Agreement contains specific plans to develop 
effective interagency monitoring and cooperation mechanisms. It also 
requires completion of a verifiable online web-based data system that 
will be used and integrated by DHEC as it monitors specific BabyNet 
Coordination Team compliance to ensure that timely evaluations and 
assessments, IFSP completion and provision of early intervention 
services and transition planning are occurring. Finally, it requires 
long-term personnel recruitment and development policies to be 
developed.
    The Compliance Agreement also establishes realistic goals and 
systemic strategies--which will be monitored by the Department--for 
bringing DHEC into compliance with Part C. The Compliance Agreement 
addresses the five major areas of DHEC's non-compliance with Part C, 
namely: (1) General Supervision, (2) Child Find/Public Awareness, (3) 
Timely and Comprehensive Child Evaluation and Assessments, (4) Timely 
IFSP Development and Provision of Early Intervention Services, and (5) 
Transition. Under each of these Compliance Agreement areas, DHEC sets 
out objectives as well as specific steps that it will take to achieve 
its objectives and address the non-compliance areas that are at issue 
in OSEP's monitoring report. The Compliance Agreement also identifies 
the key parties (including DHEC, other State agencies and stakeholder 
groups including the SICC), who will take responsibility for carrying 
out each of the strategies. Thus, specific parties can be held 
accountable if an activity delineated in the Compliance Agreement is 
not properly implemented.
    In addition to specifying overall compliance goals, a plan for 
meeting them, and the party responsible for implementing the specific 
actions steps, the Compliance Agreement also sets out interim 
objectives that DHEC must meet during the next three years in attaining 
compliance with Part C. DHEC is committed not only to being in full 
compliance with Part C within three years, but also has a plan to 
address each objective in as timely a manner as possible. The 
Compliance Agreement sets forth the data collection and reporting 
procedures that DHEC will follow. These provisions will enable the 
Department to determine whether or not DHEC is meeting each of its 
commitments under the Compliance Agreement. The Compliance Agreement, 
because of the obligations it imposes on DHEC, will provide the 
Department with the information and authority it needs to protect the 
Part C rights of South Carolina infants and toddlers with disabilities.
    DHEC has developed a comprehensive plan to address the underlying 
causes of its failure to comply with Part C. For these reasons, the 
Department concludes that DHEC can meet all the terms and conditions of 
the Compliance Agreement and come into full compliance with Part C no 
later than three years from the date of the Agreement.

IV. Conclusion

    For the foregoing reasons, the Department finds that: (1) Full 
compliance by DHEC with the requirements of Part C is not feasible 
until a future date, and (2) DHEC can meet the terms and conditions of 
the attached Compliance Agreement and come into full compliance with 
the requirements of Part C within three years of the date of this 
decision. Therefore, the Department determines that it is appropriate 
for this agency to enter into a Compliance Agreement with DHEC. Under 
the terms of 20 U.S.C. 1234f, this Compliance Agreement becomes 
effective on the date of this decision.

Dated: September 9, 2003.
Roderick Paige,
Secretary, U.S. Department of Education.

Attachment: South Carolina Compliance Agreement

Appendix B--Text of the Binding Provisions of the Compliance Agreement; 
Compliance Agreement Under Part C of the Individuals with Disabilities 
Education Act, the Infants and Toddlers with Disabilities Program, 
Between the U.S. Department of Education and the South Carolina 
Department of Health and Environmental Control

I. Introduction

    On January 6, 2003, pursuant to an on-site monitoring visit to 
South Carolina (SC) in February 2002 by the Office of Special Education 
Programs (OSEP) of the U.S. Department of Education (Department), OSEP 
issued a final monitoring report that documented non-compliance by the 
South Carolina Department of Health and Environmental Control (DHEC) 
with Part C of the Individuals with Disabilities Education Act (Part C 
of the IDEA). On May 1, 2003, pursuant to a DHEC request to enter into 
a compliance agreement, OSEP conducted a public hearing regarding 
DHEC's ability to comply with Part C. The hearing and testimony from 
representatives of other South Carolina agencies, Part C providers, 
parents and other individuals confirmed that, under 20 U.S.C. 1234c, 
full compliance with Part C by DHEC is not feasible until a future 
date, but that DHEC is able to come into compliance with Part C in no 
more than three years. Testimony at the hearing and written testimony 
submitted further supported the development of a compliance

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agreement in order to bring DHEC into compliance with Part C as soon as 
feasible and to allow continuation of Part C funds to South Carolina 
during this process. As indicated in the Secretary's Written Findings 
and Decision, the Department agrees that a compliance agreement is 
appropriate to address DHEC's noncompliance with Part C.

II. Areas of Identified Non-Compliance

    Pursuant to this Compliance Agreement under 20 U.S.C. 1234f, DHEC 
must be in full compliance with the requirements of Part C no later 
than three years from the effective date of this Agreement, which is 
the date the Secretary's Written Findings of Fact and Decision are 
issued and when the Compliance Agreement is signed by both DHEC and the 
Department. Specifically, DHEC \4\ must ensure and document that no 
later than three years from the effective date of this Agreement, the 
following compliance goals are achieved within each of the following 
five major areas:
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    \4\ DHEC's Part C program is called the BabyNet program. The 
Compliance Agreement uses the terms BabyNet and DHEC 
interchangeably. The monitoring system designed by DHEC includes the 
use of BabyNet Coordination Teams or BNCTs.
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    1. General Supervision: DHEC must meet its general supervision 
responsibilities and monitor for compliance with all requirements of 
Part C, including employing appropriate methods of administering the 
Part C program, including monitoring State agencies, institutions, 
organizations and private providers that are part of the Part C system, 
and enforcing obligations against and providing training and technical 
assistance to all such entities and individuals, when identified as 
part of a required improvement strategy.
    2. Child Find/Public Awareness: DHEC must ensure that a coordinated 
child find system results in the identification of all eligible infants 
and toddlers with disabilities and that public awareness materials 
about the infants and toddlers with disabilities program are made 
available to the public, including rural, minority and underrepresented 
populations.
    3. Timely/Comprehensive Evaluations: DHEC must ensure that all 
infants and toddlers referred to Part C receive timely and 
comprehensive evaluations in all five developmental areas, such that 
evaluations and assessments are completed within 45 days of referral to 
enable the initial Individualized Family Service Plan (IFSP) team 
meeting to be convened in that time period. DHEC must ensure there are 
adequate personnel in all geographic areas to enable evaluations and 
assessments to be completed within the 45-day timeline and to eliminate 
waiting lists for evaluations and assessments.
    4. Identification and Timely Provision of All Early Intervention 
Services on IFSPs: DHEC must ensure that all early intervention 
services needed by an eligible infant or toddler with a disability and 
the child's family are identified on the IFSP, including any family 
training, counseling and home visits. DHEC must ensure that all early 
intervention services identified by the IFSP team are provided in a 
timely manner to infants and toddlers with disabilities and their 
families. DHEC must ensure that the present level of functioning for 
each developmental area is identified on each IFSP.
    5. Transition Planning: DHEC must conduct timely and content-
appropriate transition plans and transition meetings for children who 
are transitioning from Part C to Part B of IDEA. For families 
transitioning to other programs, DHEC will develop content-appropriate 
transition plans and make reasonable efforts to convene a transition 
conference.
    During the period that this Compliance Agreement is in effect, DHEC 
is eligible to receive Part C funds if it complies with the terms and 
conditions of this Agreement and all other provisions of Part C not 
addressed by this Agreement. Specifically, the Compliance Agreement 
sets forth goals and timetables that are necessary for DHEC to come 
into compliance with its Part C obligations. In addition, DHEC is 
required to submit documentation concerning its compliance with these 
goals and timetables. Included in the Compliance Agreement are five 
individual Work Plans which address specific topic areas of DHEC's non-
compliance with Part C, and include outcomes, goals, objectives, 
activities to achieve results, verification, and target completion 
dates for DHEC's progress toward full compliance over the three-year 
Agreement. Since some of the compliance goal areas are interrelated, 
some activities and outcomes are repeated in more than one area. With 
prior written approval from OSEP, amendments to the Activities to Reach 
Results column listed in the tables may be made when necessary to 
support achievement of compliance outcomes within the required 
timelines. The Activities to Reach Results will be evaluated every six 
months to determine their effectiveness and any need for change. Any 
requests for changes in the activities or any other amendments to the 
Agreement shall be submitted in writing to OSEP.

III. Current Status, Goals and Measurable Outcomes and Verification for 
Five Areas of Non-Compliance

1. Area 1: General Supervision

    Current Status: The Department's January 6, 2003 monitoring report 
found that: DHEC did not have a method to identify local noncompliance 
with Part C requirements, that Part C private providers were not 
following Part C regulations (including provisions that require early 
intervention services to be provided in the natural environment), DHEC 
did not monitor other agencies, institutions, organizations and 
providers used by the State to carry out Part C, DHEC did not enforce 
all obligations under Part C and DHEC had not adopted and used proper 
methods of administering each program, including providing technical 
assistance and training. DHEC's self-assessment data and BabyTrac Data 
support these findings.
    Outcome: DHEC will ensure that all eligible infants and toddlers 
and their families have available appropriate early intervention 
services in accordance with Part C requirements through the development 
and implementation of an interagency comprehensive monitoring and 
general supervision system that includes a continuous improvement and 
focused monitoring process.
    Measurable Goals and Verification: DHEC has identified the 
following goals and will either provide or make available verification 
to the Department for each goal.
    Goal 1: Monitoring policies, procedures, and instruments will 
identify compliance deficiencies and ensure these are corrected in a 
timely manner.
    Goal 2: Ongoing technical assistance and training to public and 
private providers, administrators, paraprofessionals, and special 
instructors will be provided to ensure compliant provision of services 
to infants and toddlers with disabilities and their families.
    Goal 3: Appropriate sanctions will be used when necessary to 
enforce correction of deficiencies.
    Verification: In its quarterly report to OSEP, DHEC shall provide 
summaries of the status of each of the above goals (consistent with the 
General Supervision Compliance Work Plan) and shall provide a narrative 
of how DHEC has analyzed and responded to the data provided by each 
BNCT. DHEC shall also provide in its quarterly reports, summaries of 
progress in

[[Page 63939]]

meeting the target completion dates for each of the activities 
identified under general supervision, including (1) the identification 
and correction of any barriers, legislative or other, to ensure 
compliance with Part C, (2) an interagency memorandum of agreement that 
focuses on monitoring of all State agencies that provide Part C 
services, and (3) procedures for enforcing or correcting identified 
non-compliance, including use of appropriate sanctions. In addition, 
DHEC will submit the verification data and/or documentation listed in 
the attached General Supervision Compliance Work Plan on the dates the 
quarterly reports are due to OSEP.

2. Area 2: Child Find/Public Awareness

    Current Status: OSEP's monitoring report reflected that: public 
awareness activities were not effective in informing parents of infants 
and toddlers with disabilities of underrepresented populations; there 
was a lack of coordination for child find and public awareness among 
relevant agencies (including child care, migrant Head Start, SSI); 
physician referrals were problematic including ``wait and see'' 
attitude and misperception that BabyNet addresses child health instead 
of development; there was a lack of public awareness materials in 
daycare centers, pediatric offices or developmental centers; and public 
awareness materials were not distributed or available in Spanish. 
DHEC's self-assessment data and BabyTrac Data support these findings.
    Outcome: DHEC will ensure the development and implementation of a 
comprehensive, coordinated public awareness/child find system that 
results in the identification, evaluation, and assessment of all 
eligible infants and toddlers.
    Measurable Goals and Verification: DHEC has identified the 
following goals and will either provide or make available verification 
to the Department for each goal.
    Goal 1: DHEC shall ensure that the child find system is coordinated 
with all major efforts to locate and identify eligible children 
conducted by other State agencies.
    Goal 2: DHEC will ensure that the child find system is coordinated 
with all other major efforts to locate and identify children conducted 
by other State agencies, programs, and organizations, and DHEC shall 
conduct outreach to these entities including private entities such as 
pediatric practices and day care centers.
    Goal 3: Families will have access to public awareness materials (to 
ensure identification of all eligible infants and toddlers and to 
enable access to culturally competent services) that inform and promote 
referral of eligible infants and toddlers to the Part C system.
    Verification: Within the first week of each month and each month 
thereafter, each BNCT will prepare a report regarding the Child Find 
verification data listed in the Child Find Compliance Work Plan. In its 
quarterly report to OSEP, DHEC shall provide monthly data summaries, by 
each BNCT, and shall provide a narrative of how DHEC has analyzed and 
responded to the data provided by each BNCT.

3. Area 3: Timely/Comprehensive Evaluations

    Current Status: OSEP's monitoring report reflected that: 
Evaluations and assessments were not completed in all five 
developmental areas; content on initial IFSPs was limited to future 
referrals for further evaluation and assessment; infants and toddlers 
were not evaluated in the areas of vision and hearing; evaluations and 
assessments were often not completed within the 45-day timeline; there 
are waiting lists for evaluations and assessments; and shortages of 
providers in some areas impacted completion of evaluations and 
assessments in a timely manner.
    Outcome: DHEC will ensure that infants and toddlers receive timely 
comprehensive evaluations in all five developmental areas to enable the 
initial IFSP team meeting to be convened within 45 calendar days from 
referral.
    Measurable Goals and Verification: DHEC has identified the 
following goals and will either provide or make available verification 
to the Department for each goal.
    Goal 1: DHEC will ensure that evaluations and assessments are 
completed in all five developmental areas--cognitive development, 
physical development, including vision and hearing, communication 
development, social and emotional development and adaptive development.
    Goal 2: DHEC will ensure that infants and toddlers receive timely 
evaluations and assessments in order to enable the initial IFSP team 
meeting to be convened within 45 calendar days from referral and 
eliminate waiting lists for evaluations and assessments.
    Verification: Each BNCT will demonstrate continuous improvement in 
ensuring all infants and toddlers receive timely evaluations and 
assessments, including vision and hearing within the 45-day timeline. 
Quarterly benchmarks will be established for each BNCT and incorporated 
in the BNCT Compliance Plan. Benchmarks will take the BNCT from their 
specific baseline in this area and ensure continuous substantial 
progress until all infants and toddlers with disabilities receive 
timely evaluations and assessments in all developmental areas, 
including vision and hearing, within the 45-day timeline. DHEC will 
monitor each BNCT to ensure that benchmarks are met and will intervene 
directly with individual BNCTs, as necessary. In its quarterly report 
to OSEP, DHEC shall provide monthly summaries, by each BNCT and shall 
provide a narrative of how DHEC has analyzed and responded to the data 
provided by each BNCT.

4. Area 4: Proper Development of, and Timely Provision of Early 
Intervention Services on, Individualized Family Service Plan (IFSP)

    Current Status: OSEP's monitoring report reflected that: Present 
levels of functioning were written in some developmental areas, but 
were frequently omitted for the physical and communication 
developmental areas; all needed services, including family support 
services, were not listed on the IFSP; providers reported that it was 
difficult to obtain counseling services and parenting classes; the 
provision of early intervention services was delayed; for some infants 
and toddlers with disabilities and families, EI services were not 
provided; and waiting lists existed for early intervention services.
    Outcome: DHEC will ensure the development and implementation of 
complete IFSPs for all eligible infants and toddlers with disabilities 
and their families and ensure that all infants and toddlers with 
disabilities and their families are provided early intervention 
services in a timely manner.
    Measurable Goals and Verification: DHEC has identified the 
following goals and will either provide or make available verification 
to the Department for each goal.
    Goal 1: All IFSPs will contain the required components in 
accordance with Part C.
    Goal 2: All infants and toddlers with disabilities and their 
families will receive all early intervention services identified on 
their IFSP in a timely manner and waiting lists for all early 
intervention services will be eliminated.
    Verification: Each BNCT will demonstrate continuous improvement in 
eliminating waiting lists for receipt of early intervention services on 
the IFSP each quarter. Quarterly benchmarks will be established for 
each BNCT and incorporated in the BNCT's Compliance Plan. Benchmarks 
will take the BNCT

[[Page 63940]]

from their specific baseline in this area and ensure continuous 
substantial progress until there are no infants and toddlers on waiting 
lists for evaluation and assessment. DHEC will monitor each BNCT to 
ensure that benchmarks are met and will intervene directly with 
individual BNCTs, as necessary. In its quarterly report to OSEP, DHEC 
shall provide monthly summaries by each BNCT and shall provide a 
narrative of how DHEC has analyzed and responded to the data provided 
by each BNCT.

5. Area 5: Timely Transition Planning and Conferences

    Current Status: OSEP's monitoring report reflected that: School 
districts were not being notified of BabyNet eligible children 
approaching age three; transition meetings were not being held in 
accordance with Part C requirements; and transition plans were not 
being developed and implemented in accordance with Part C requirements.
    Outcome: DHEC will ensure that timely transition notices are 
provided and transition meetings are held and that transition plans are 
developed to assist all eligible children and their families as they 
exit Part C.
    Measurable Goals and Verification: DHEC has identified the 
following goals and will either provide or make available verification 
to the Department for each goal.
    Goal 1: DHEC will ensure that the local education agency is 
notified of children who are approaching the age for transition at 
least 90 days prior to the child turning three in accordance with Part 
C.
    Goal 2: DHEC will ensure that a transition meeting is held in 
accordance with the requirements of Part C of IDEA.
    Goal 3: DHEC will ensure that transition plans are developed and 
implemented in accordance with the requirements under Part C.
    Verification: Each BNCT will demonstrate continuous improvement in 
reducing the number of eligible children who have not received required 
Part C Transition planning in a timely manner when exiting BabyNet. 
Quarterly benchmarks will be established for each BNCT and incorporated 
in the BNCT's Compliance Plan. Benchmarks will take the BNCT from their 
specific baseline in this area and ensure continuous substantial 
progress until all eligible children receive required Part C Transition 
planning in a timely manner when exiting BabyNet. DHEC will monitor 
each BNCT to ensure that benchmarks are met and will intervene directly 
with individual BNCTs, as necessary. In its quarterly report to OSEP, 
DHEC shall provide monthly summaries, by each BNCT and shall provide a 
narrative of how DHEC has analyzed and responded to the data provided 
by each BNCT.
    Other Conditions: DHEC agrees that its continued eligibility to 
receive Part C funds is predicated upon compliance with statutory and 
regulatory requirements of that program, which includes requirements 
not addressed specifically by this Agreement. Any failure by DHEC to 
comply with the goals, objectives, timetables, verification or other 
provisions of the Compliance Agreement, including the reporting 
requirements, will authorize the Department to consider the agreement 
no longer in effect. If DHEC fails to comply with the terms of the 
Agreement, the Department may take any actions authorized under the 
General Education Provisions Act (GEPA at 20 U.S.C. 1200 et seq.) and 
the IDEA at 20 U.S.C. 1401 et seq. and 1443-1445. Such actions may 
include, under 20 U.S.C. 1234c, the withholding of Part C funds from 
the State (consistent with the procedures set forth in the IDEA or at 
20 U.S.C. 1234d).

    Signed for the South Carolina Department of Health and 
Environmental Control:

    Dated: August 20, 2003.

C. Earl Hunter,
Commissioner.

    Signed for the U.S. Department of Education:

    Dated: September 9, 2003.
Roderick Paige,
Secretary.
    Date this Compliance Agreement Becomes Effective: September 9, 
2003. (Date on which Written Findings of Fact are Issued).
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[FR Doc. 03-28174 Filed 11-7-03; 8:45 am]
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