[Federal Register Volume 72, Number 89 (Wednesday, May 9, 2007)]
[Proposed Rules]
[Pages 26456-26531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2140]



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Part II





Department of Education





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34 CFR Part 303



Early Intervention Program for Infants and Toddlers With Disabilities; 
Proposed Rule

  Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 / 
Proposed Rules  

[[Page 26456]]


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DEPARTMENT OF EDUCATION

34 CFR Part 303

[Docket ID ED-2007-OSERS-131]
RIN 1820-AB59


Early Intervention Program for Infants and Toddlers With 
Disabilities

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Secretary proposes to amend the regulations governing the 
Early Intervention Program for Infants and Toddlers with Disabilities. 
The proposed regulations would implement changes made to the 
Individuals with Disabilities Education Act by the Individuals with 
Disabilities Education Improvement Act of 2004.

DATES: We must receive your comments on or before July 23, 2007.
    We will hold public meetings about this NPRM. The dates, times, and 
places of the meetings will be published in a separate notice in the 
Federal Register.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by e-mail. Please submit your comments only 
one time, in order to ensure that we do not receive duplicate copies. 
In addition, please include the Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to http://www.regulations.gov, select ``Department of Education'' from the agency 
drop-down menu, then click ``Submit.'' In the Docket ID column, select 
ED-2007-OSERS-131 to add or view public comments and to view supporting 
and related materials available electronically. Information on using 
Regulations.gov, including instructions for submitting comments, 
accessing documents, and viewing the docket after the close of the 
comment period, is available through the site's ``User Tips'' link.
     Postal Mail, Commercial Delivery, or Hand Delivery. If you 
mail or deliver your comments about these proposed regulations, address 
them to Alexa Posny, U.S. Department of Education, 400 Maryland Avenue, 
SW., room 4109, Potomac Center Plaza, Washington, DC 20202-2600.

    Privacy Note: The Department's policy for comments received from 
members of the public (including those comments submitted by mail, 
commercial delivery, or hand delivery) is to make these submissions 
available for public viewing on the Federal eRulemaking Portal at 
http://www.regulations.gov. All submissions will be posted to the 
Federal eRulemaking Portal without change, including personal 
identifiers and contact information.


FOR FURTHER INFORMATION CONTACT: Alexa Posny, U.S. Department of 
Education, 400 Maryland Avenue, SW., room 4109, Potomac Center Plaza, 
Washington, DC 20202-2600. Telephone: (202) 245-7459, extension 3.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) 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) upon request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

    We invite you to submit comments regarding these proposed 
regulations. To ensure that your comments have maximum effect in 
developing the final regulations, we urge you to identify clearly the 
specific section or sections of the proposed regulations that each of 
your comments addresses and to arrange your comments in the same order 
as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
regulations. Please let us know of any further opportunities we should 
provide to reduce the potential costs or increase potential benefits 
while preserving the effective and efficient administration of the 
program.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations by accessing Regulations.gov. 
You may also inspect the comments, in person, in room 4165, Potomac 
Center Plaza, 550 12th Street, SW., Washington, DC, between the hours 
of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each 
week except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

Public Meetings

    We will hold public meetings about this NPRM. Each meeting will 
take place from 4 p.m. to 7:30 p.m. We will be providing more specific 
information on meeting dates and locations in a separate notice 
published in the Federal Register.

Assistance to Individuals With Disabilities at the Public Meetings

    The meeting sites will be accessible to individuals with 
disabilities and sign language interpreters will be available. If you 
need an auxiliary aid or service other than a sign language interpreter 
to participate in the meeting (e.g., interpreting service such as oral, 
cued speech, or tactile interpreter; assisted listening device; or 
materials in alternate format), notify the contact person listed under 
FOR FURTHER INFORMATION CONTACT at least two weeks before the scheduled 
meeting date. Although we will attempt to meet a request we receive 
after this date, we may not be able to make available the requested 
auxiliary aid or service because of insufficient time to arrange it.

Background

    On December 3, 2004, the Individuals with Disabilities Education 
Improvement Act of 2004 was enacted into law as Public Law 108-446. 
This statute, as passed by Congress and signed by the President, 
reauthorizes and makes significant changes to the Individuals with 
Disabilities Education Act.
    Part C of the Individuals with Disabilities Education Act, as 
amended by the Individuals with Disabilities Education Improvement Act 
of 2004 (Act or IDEA), provides Federal funds to States to make 
available early intervention services for infants and toddlers with 
disabilities (from birth to age three) and their families. In 2004, the 
Act was revised to--(1) Emphasize child find for underserved 
populations of infants and toddlers; (2) increase accountability for 
the success of early intervention services; (3) ensure a seamless 
transition for children and families when they exit from the Part C 
program to other appropriate programs; (4) provide States with 
flexibility to provide early intervention services to children with 
disabilities who are age three and older; (5) provide States with 
alternatives to dispute resolution under

[[Page 26457]]

Part C's procedural safeguards; (6) clarify certain definitions 
including specific early intervention services, qualified personnel, 
and natural environments; and (7) streamline Part C grant application 
requirements.
    Changes to the current Part C regulations (34 CFR part 303) are 
necessary in order for the Department to appropriately and effectively 
address the provisions of the law and to assist State lead agencies and 
early intervention service programs and providers in implementing their 
responsibilities under the law.
    On December 29, 2004, the Secretary published a notice in the 
Federal Register requesting advice and recommendations from the public 
on regulatory issues under the Act, and announcing a series of seven 
public meetings during January and February of 2005 to seek further 
input and suggestions for developing regulations based on the new 
statute.
    Over 6000 public comments were received in response to the Federal 
Register notice and the seven public meetings, including letters from 
parents, public agency personnel, early intervention personnel, and 
parent-advocate and professional organizations. The comments addressed 
the major provisions of the law. These comments were reviewed and 
considered in developing this NPRM. The Secretary appreciates the 
interest and thoughtful attention of the commenters responding to the 
December 29, 2004 notice and participating in the seven public 
meetings.

General Proposed Regulatory Plan and Structure

    In developing this NPRM, we have elected to prepare one 
comprehensive document that incorporates the majority of the 
requirements from the law along with the applicable regulations, rather 
than publishing a regulation that does not include statutory 
provisions. The rationale for doing this is to create a single 
reference document for parents, State lead agencies, early intervention 
service programs and providers, State Interagency Coordinating 
Councils, and others to use, so there is no need to shift between one 
document for regulations and a separate document for the statute. 
Although this approach will result in longer regulations, it is our 
impression that there is support for this practice.
    We have reorganized the regulations by following the general order, 
substance, and structure of provisions in the statute, rather than 
using the arrangement of the current regulations. We believe this 
change will be helpful to parents, State lead agencies, early 
intervention service providers and the public both in reading the 
regulations, and in finding the direct link between a given statutory 
requirement and the regulation related to that requirement.
    The proposed regulations contain Part C statutory provisions (even 
where those provisions are not in the current regulations but were in 
the statute prior to 2004). For example, proposed Sec.  303.104 
(Acquisition of equipment and construction or alteration of facilities) 
contains new regulatory language that incorporates the longstanding 
statutory language in section 605 of the Act, which was unchanged by 
the 2004 amendments to the Act. Because these changes in the proposed 
regulations do not involve new substantive requirements, but rather 
incorporate longstanding statutory requirements, they are not 
identified in this preamble as substantive changes. The changes in 
these proposed regulations are identified in the appropriate locations 
in the preamble.
    In general, the requirements related to a given statutory section 
will be included in one location and in the same general order as in 
the statute, rather than being spread throughout several subparts, as 
the statutory sections are in the current regulations. One exception to 
this approach is that the regulations implementing section 638 of the 
Act (Uses of funds), are combined with the regulations implementing 
section 632 (System of payments) and section 640 of the Act (Payor of 
last resort) in proposed subpart F, because both relate to financial 
and interagency matters.
    As restructured in this NPRM, these proposed regulations are 
divided into eight major subparts, each of which is directly linked to, 
and comports with, the general order of provisions in a specific 
section of the Act. For example, we have revised subpart H in the 
proposed regulations to include all provisions regarding the allocation 
of Part C funds (from section 643 of the Act), rather than having those 
provisions dispersed among several different subparts, as in the 
current Part C regulations.
    In addition, these proposed regulations do not contain notes 
following the regulatory text as in the current regulations. Where 
necessary and relevant, language from the notes in the current 
regulations has been incorporated into the proposed regulations.
    Finally, these proposed regulations incorporate, where practicable, 
applicable Part B regulations in order to align the two systems, 
minimize administrative costs (particularly for lead agencies that are 
also State educational agencies (SEAs) responsible for administering 
both Parts B and C of the Act in a State), and promote a seamless 
system of services for infants, toddlers, children, and youth with 
disabilities birth through 21 years of age.

Significant Proposed Regulations

    We discuss substantive issues under the sections of the proposed 
regulations to which they pertain. Generally, we do not address 
proposed regulatory provisions that are technical or otherwise minor in 
effect.

Subpart A--General

    Proposed subpart A would incorporate the provisions in sections 
601, 602, 631, and 632 of the Act regarding the purpose of and 
definitions under Part C of the Act.
Purpose and Applicable Regulations
    Proposed Sec.  303.1(a) through (d) (Purpose) would be 
substantively unchanged and would incorporate sections 601(d)(2) and 
631(a)(5) and (b)(1) through (3) of the Act regarding the purposes of 
Part C of the Act. Proposed Sec.  303.1(e), regarding expanding 
opportunities for children under three who would be at risk of 
developmental delay, would be added to incorporate the language from 
section 631(b)(4) of the Act.
    Proposed Sec.  303.2, regarding eligible recipients under Part C of 
the Act would remain substantively unchanged from current Sec.  303.2, 
and would be consistent with the definition of State in section 602(31) 
of the Act and in proposed Sec.  303.34.
    Current Sec.  303.3, regarding use of funds for activities 
supported under Part C of the Act, would be incorporated into proposed 
Sec.  303.501 regarding permissive use of funds by the lead agency in 
subpart F of these proposed regulations. Current Sec.  303.4 regarding 
the limitation on eligible children would be removed because the 
definitions of child and infant or toddler with a disability in 
proposed Sec. Sec.  303.6 and 303.21, respectively, make clear that 
part 303 applies to infants and toddlers with disabilities who are 
under the age of three and therefore does not apply to children with 
disabilities ages three and older who may be entitled to receive a free 
appropriate public education under Part B of the Act.
    Proposed Sec.  303.3, regarding applicable regulations, would 
incorporate the provisions from current Sec.  303.5. Proposed Sec.  
303.3(a)(1) would incorporate the language from current

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Sec.  303.5(a)(2). Proposed Sec.  303.3(a)(2) would include the 
references from the Education Department General Administrative 
Regulations (EDGAR) in current Sec.  303.5(a)(1). The references to the 
Part B regulations in current Sec.  303.3(a)(3) would be removed 
because all applicable provisions from the Part B regulations would be 
included in these proposed regulations. For example, the provisions in 
the Part B regulations regarding confidentiality and the procedures for 
the Secretary's determination of State eligibility to receive a grant, 
which are cross-referenced in current Sec.  303.5(a)(3), would appear, 
respectively, in proposed Sec. Sec.  303.402 through 303.417 and 
proposed Sec. Sec.  303.231 through 303.236.
    Proposed Sec.  303.3(b) would incorporate the language from current 
Sec.  303.5(b)(1), regarding the meaning of State educational agency, 
to indicate that any reference to the term State educational agency 
means the lead agency under this part.
    Current Sec.  303.5(b)(2) through (b)(5) regarding the meaning of 
terms and cross-references from the Part B regulations as applied to 
the Part C regulations would be removed as unnecessary because we would 
incorporate applicable definitions and provisions from the Part B 
regulations in these proposed regulations.
Definitions Used in This Part
    Proposed Sec.  303.4 (Act) would incorporate the statutory 
definition of Act from section 601(a) of the Act and current Sec.  
303.6, and would further clarify that the Act has been amended.
    Proposed Sec.  303.5 (At-risk infant or toddler) would incorporate 
the statutory definition from section 632(1) of the Act. This section 
would also include the examples of biological and environmental at-risk 
factors listed in Note 2 following current Sec.  303.16 as follows: Low 
birth weight, respiratory distress as a newborn, lack of oxygen, brain 
hemorrhage, infection, nutritional deprivation, and history of abuse or 
neglect. With this change, Note 2 following current Sec.  303.16 would 
be removed from the regulations. Proposed Sec.  303.5 would also 
include as an example of at-risk infants and toddlers whom the State 
may elect to serve those infants and toddlers directly affected by 
illegal substance abuse or withdrawal symptoms resulting from prenatal 
drug exposure to reflect the new provisions described in section 
637(a)(6)(B) of the Act.
    Proposed Sec.  303.6 (Child) would modify the definition of child 
in current Sec.  303.7 to mean an individual under age six and would be 
consistent with the State option outlined in proposed Sec.  303.211 to 
serve children ages three and older.
    Proposed Sec.  303.7 (Consent) would incorporate the provisions of 
current Sec.  303.401(a), except that proposed Sec.  303.7(c)(2) would 
add that if the parent revokes consent, that revocation is not 
retroactive (i.e., it does not apply to an action that has occurred 
before the consent was revoked), consistent with the Part B regulations 
in 34 CFR 300.9 (71 FR 46757).
    Proposed Sec.  303.8 (Council) would remain substantively unchanged 
from current Sec.  303.8 and would reflect the statutory definition in 
section 632(2) of the Act.
    Proposed Sec.  303.9 (Day) would remain substantively unchanged 
from current Sec.  303.9.
    Proposed Sec.  303.10 (Developmental delay) would remain 
substantively unchanged from current Sec.  303.10 and would cross-
reference proposed Sec.  303.111 regarding the State definition of 
developmental delay and proposed Sec.  303.203(c) regarding the 
requirement that the State must include its rigorous definition of 
developmental delay in its application to the Department.
    Proposed Sec.  303.11 (Early intervention service program or EIS 
program) would replace current Sec.  303.11 and would clarify that the 
EIS program is an entity designated by the lead agency for reporting 
under sections 616(b)(2)(C) and 642 of the Act and proposed Sec. Sec.  
303.700 through 303.702.
    Proposed Sec.  303.12(a) (Early intervention service provider or 
EIS provider) would clarify that an EIS provider can be an entity 
(whether public, private, or nonprofit) or an individual that provides 
early intervention services under Part C of the Act in the State 
whether or not the entity or individual receives Federal funds under 
Part C of the Act and may include the lead agency and a public agency 
under Part C of the Act, where appropriate. For example, an EIS 
provider may include the lead agency, a public agency, or individuals 
if these entities or individuals are responsible for conducting 
evaluations and assessments, providing service coordination, or other 
Part C services.
    Proposed Sec.  303.12(b) would be similar to current Sec.  
303.12(c) in that it would continue to clarify that the EIS provider is 
responsible for: participating in the multidisciplinary team's 
assessment of an infant or toddler to develop integrated goals and 
outcomes for the individualized family service plan (IFSP); and 
providing early intervention services in accordance with the infant's 
or toddler's IFSP because States must ensure EIS providers are 
providing direct services to eligible children in addition to their 
other roles. However, proposed Sec.  303.12(b) would further identify 
that the EIS provider would be responsible for consulting with and 
training parents and others regarding the provision of the early 
intervention services described in the infant's or toddler's IFSP.
    Proposed Sec.  303.13, regarding the definition of early 
intervention services, would replace current Sec.  303.12(a) and (b) 
and would incorporate the provisions of the definition of this term in 
section 632(4) of the Act. In addition, proposed Sec.  303.13(a)(2) 
would retain the language in current Sec.  303.12(a)(2) to clarify that 
the early intervention services are selected in collaboration with 
parents. Proposed Sec.  303.13(a)(4) would clarify that early 
intervention services are designed to meet the developmental needs of 
an infant or toddler with a disability, and as requested by the family, 
the needs of the family to assist appropriately in the infant's or 
toddler's development, as identified by the IFSP team. Proposed Sec.  
303.13(a)(8) would clarify that early intervention services, to the 
maximum extent appropriate, are provided in natural environments, as 
defined in proposed Sec.  303.26 and consistent with proposed Sec.  
303.126.
    Proposed Sec.  303.13(b) regarding types of early intervention 
services would substantively incorporate the provisions of current 
Sec.  303.12(d) but would not include the references from current Sec.  
303.12(d)(6) and (d)(7) to nursing services and nutrition services, 
which are not specifically listed in section 632(4)(E) of the Act. Only 
those types of services identified in section 602(4)(E) of the Act 
would be retained. The list of services identified in this proposed 
section is not intended to comprise an exhaustive list of the types of 
services that may be provided to an infant or toddler with a disability 
as an early intervention service. Nursing services or nutrition 
services could be deemed early intervention services if they are 
provided by qualified personnel and otherwise meet the definition of 
early intervention services.
    Proposed Sec.  303.13(b)(1)(i) (Assistive technology device) and 
(b)(1)(ii) (Assistive technology service) would reflect the statutory 
definition of these terms in section 602(1) and 602(2) of the Act. The 
definition of assistive technology device as well as the definition of 
health services in proposed Sec.  303.16(c)(1)(iii) (Health services) 
would exclude, as a covered service under Part C of the Act, a medical 
device that is surgically implanted,

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including cochlear implants, or the optimization or maintenance or 
replacement of such a device, consistent with section 602(1)(B) of the 
Act and 34 CFR 300.34(b) of the Part B regulations (71 FR 46760).
    Optimization or ``mapping'' of a cochlear implant means the 
adjustment or fine tuning of the electrical stimulation levels provided 
by the cochlear implant. These adjustments are required as an infant or 
toddler learns to discriminate signals to a finer degree. Optimization 
services are generally provided at specialized clinics by specially 
trained professionals. These mapping or remapping services are not the 
responsibility of the lead agency under Part C of the Act.
    Although mapping is not an early intervention service, the need for 
it and the use of a cochlear implant by an infant or toddler with a 
disability may indicate a need for services, some of which would be 
considered early intervention services such as speech therapy, 
assistive listening devices and auditory training. In addition, for a 
child who has been receiving Part C services, the implantation of a 
device may require a reevaluation of the child's level of functioning 
and review and, if appropriate, revision of the child's IFSP.
    Nothing in proposed Sec.  303.13(b)(1)(i) (Assistive technology 
device), proposed Sec.  303.13(b)(1)(ii) (Assistive technology 
service), and proposed Sec.  303.16(c)(1)(iii) (Health services) would 
limit the right of an infant or toddler with a disability with a 
surgically implanted device (such as a cochlear implant) and the 
child's family to receive the early intervention services that are 
determined by the IFSP team to be necessary to meet the unique 
developmental needs of the infant or toddler. Thus, although a cochlear 
implant is expressly excluded from being an assistive technology device 
under Part C of the Act, funds under Part C of the Act may under 
certain circumstances be used to pay for a hearing aid. A hearing aid 
in general is not covered because it is considered a personal device 
used for daily purposes. However, if the hearing aid is identified as a 
needed assistive technology device by the infant's or toddler's IFSP 
team in order to meet the specific developmental outcomes of the infant 
or toddler with a disability, funds under Part C of the Act may be used 
to provide this early intervention service.
    Proposed Sec.  303.13(b)(2) (Audiology services) would be 
substantively unchanged from current Sec.  303.12(d)(2), except that 
the term in current Sec.  303.12(d)(2) would be changed from audiology 
to audiology services because the section outlines specific audiology 
services provided.
    Proposed Sec.  303.13(b)(3) (Family training, counseling, and home 
visits) would be substantively unchanged from current Sec.  
303.12(d)(3).
    Proposed Sec.  303.13(b)(4) (Health services) would reference the 
definition of health services in proposed Sec.  303.16, consistent with 
the reference to the definition of health services in current Sec.  
303.12(d)(4).
    Proposed Sec.  303.13(b)(5) (Medical services) would be 
substantively unchanged from current Sec.  303.12(d)(5) (Medical 
services only for diagnostic or evaluation). Proposed Sec.  
303.13(b)(5) would clarify that the term medical services means 
services provided by a licensed physician for diagnostic or evaluation 
purposes to determine a child's developmental status and need for early 
intervention services.
    Proposed Sec.  303.13(b)(6) (Occupational therapy) would be 
substantively unchanged from current Sec.  303.12(d)(8).
    Proposed Sec.  303.13(b)(7) (Physical therapy) would be 
substantively unchanged from current Sec.  303.12(d)(9).
    Proposed Sec.  303.13(b)(8) (Psychological services) would be 
substantively unchanged from current Sec.  303.12(d)(10).
    Proposed Sec.  303.13(b)(9) (Service coordination services) would 
cross-reference the definition of service coordination services in 
proposed Sec.  303.33, which substantively includes the language in 
current Sec.  303.12(d)(11) regarding the meaning of service 
coordination services.
    Proposed Sec.  303.13(b)(10) (Social work services) would be 
substantively unchanged from current Sec.  303.12(d)(12).
    Proposed Sec.  303.13(b)(11) (Special instruction) would be 
substantively unchanged from current Sec.  303.12(d)(13).
    Proposed Sec.  303.13(b)(12) (Speech-language pathology services) 
would reflect the definition of speech-language pathology in current 
Sec.  303.12(d)(14) and the language from section 632(4)(E)(iii) of the 
Act, which includes sign language and cued language services, such as 
speech-language pathology services, as early intervention services. The 
definition also would clarify that interpreting or transliteration 
services include oral transliteration (such as amplification) services. 
The definition would also add that auditory/oral language services 
would be used with respect to infants and toddlers with disabilities 
who are hearing impaired, which would include services to the infant or 
toddler with a disability and the family to teach auditory/oral 
language.
    Proposed Sec.  303.13(b)(13) (Transportation and related costs) 
would be substantively unchanged from current Sec.  303.12(d)(15) 
except that we would remove taxi from among the examples because 
transportation via taxi is less common than transportation via the 
other examples such as common carriers. Proposed Sec.  303.13(b)(14) 
(Vision services) would be substantively unchanged from current Sec.  
303.12(d)(16).
    Proposed Sec.  303.13(c) (Qualified personnel) would be similar to 
current Sec.  303.12(e) except for the following changes. As previously 
described in the discussion related to proposed Sec.  303.13(b) 
regarding the types of early intervention services, registered 
dieticians would be included in the list of types of qualified 
personnel to reflect the provisions of section 632(4)(F)(viii) of the 
Act. The reference to nutritionists in current Sec.  303.12(e)(4) would 
not be included in proposed Sec.  303.13(c) consistent with section 
632(4) of the Act.
    Proposed Sec.  303.13(c)(11) also would provide that teachers of 
infants or toddlers with hearing impairments (including deafness) and 
teachers of the visually impaired (including blindness) are special 
educators. As stated in note 284 of the U.S. House of Representatives 
Conference Report No. 108-779 (Conf. Rpt.), the ``Conferees commend the 
Office of Special Education and Rehabilitative Services for developing 
updated early intervention materials that set out the full range of 
options for families with deaf and hard of hearing children who now 
have the potential to develop age appropriate language in whatever 
modality their parents choose.'' Note 285 in the Conf. Rpt. further 
states that ``[t]he conferees intend that the term `special educators' 
include `teachers of the deaf'.'' We propose to use the term ``teachers 
of the hearing impaired'' rather than the term ``teachers of the deaf'' 
because the former includes teachers of the deaf, and provides States 
with broader flexibility to provide teachers to meet the language and 
communication needs of infants or toddlers who are hearing impaired, 
including infants and toddlers who are deaf. It is the intent of the 
Department and these proposed regulations to continue to ensure that 
such qualified personnel are available for infants and toddlers with 
hearing impairments including deafness.
    The Department requests comment on whether it is necessary to 
classify teachers of the visually impaired as special educators as we 
have proposed in proposed Sec.  303.13(c)(11). We believe that such 
classification in the regulations is necessary to ensure that

[[Page 26460]]

qualified personnel are available for infants and toddlers with visual 
impairments, including blindness. Additionally, to conform to section 
632(4)(F) of the Act, proposed Sec.  303.13(c)(13) would include vision 
specialists, ophthalmologists, and optometrists to meet the service and 
sensory needs of infants and toddlers who are visually impaired, 
including infants and toddlers who are blind.
    The note following current Sec.  303.12 would be removed because 
the substance of the note would be reflected in proposed Sec.  
303.13(d). Proposed Sec.  303.13(d) would clarify that the lists of 
early intervention services and personnel in proposed Sec.  303.13(b) 
and (c) are not exhaustive. The list does not preclude the provision of 
other early intervention services for an infant or toddler with a 
disability and the child's family to enhance the developmental needs of 
the child. Such Part C services can include, for example, respite care 
if the IFSP team identifies it as a service necessary to enable the 
parent of an infant or toddler with a disability to participate in or 
receive other early intervention services in order to meet the 
developmental outcomes identified on the child's IFSP. In addition, 
persons other than those identified in proposed Sec.  303.13(c) could 
provide early intervention services provided that the services 
otherwise met the requirements of this part.
    Proposed Sec.  303.14 (Elementary school) would incorporate the 
definition of this term from section 602(6) of the Act. We propose to 
add this definition here because Part C of the Act now includes 
references to elementary schools in the discussion of a State's option 
to make early intervention services under Part C of the Act available 
to children ages three and older under sections 632 and 635(c) of the 
Act.
    Proposed Sec.  303.15 (Free appropriate public education or (FAPE)) 
would be added to incorporate the definition of FAPE from section 
602(9) of the Act, given the State's option to make early intervention 
services available to children in lieu of receiving FAPE under sections 
632(5)(B)(ii) and 635(c) of the Act.
    Proposed Sec.  303.16 (Health services) would be substantively 
unchanged from current Sec.  303.13 except that, consistent with the 
language in section 602(1) of the Act, the term would not include 
optimization (e.g., mapping), maintenance or replacement of surgically 
implanted medical devices, including cochlear implants. We have 
provided further clarification on the issue of cochlear implants 
elsewhere in this preamble in the discussion of the definition of 
assistive technology device.
    Additionally, proposed Sec.  303.16(c)(1)(iii) would clarify that 
an infant or toddler with a surgically implanted device, such as a 
cochlear implant, is entitled to receive early intervention services 
that are identified on the child's IFSP as being needed to meet the 
child's developmental needs, and that nothing under Part C of the Act 
prevents the EIS provider from routinely checking either a hearing aid 
or external components of a surgically implanted device of an infant or 
toddler with a disability to determine whether they are functioning 
properly. This clarification in proposed Sec.  303.16(c)(1)(iii) would 
be similar to the provision in 34 CFR 300.34(b)(2) of the Part B 
regulations (71 FR 46760).
    Proposed Sec.  303.16(c)(2), regarding devices necessary to control 
or treat a medical condition would be clarified by adding the following 
examples of devices that are necessary to control or treat a medical 
condition: heart monitors, respirators and oxygen, and gastrointestinal 
feeding tubes and pumps.
    The note following current Sec.  303.13 would be removed as 
unnecessary. The statement in the note regarding the distinction 
between health services required under Part C of the Act and services 
that are not required under Part C of the Act would be reflected in 
proposed Sec.  303.16. The discussion regarding medical and other 
services the child needs or is receiving through other sources that are 
neither required nor funded under Part C of the Act would be included 
in the child's IFSP and addressed in proposed Sec.  303.344(e).
    Proposed Sec.  303.17 (Homeless children) would incorporate the 
definition of homeless children from section 602(11) of the Act and 
would clarify that, for purposes of Part C of the Act, references to 
homeless children include only homeless children under the age of 
three.
    Proposed Sec.  303.18 (Include; including) would remain 
substantively unchanged from current Sec.  303.15.
    Proposed Sec.  303.19(a) and (b), which provides the definitions of 
Indian and Indian tribe, respectively, would incorporate the 
definitions of these terms in section 602(12) and 602(13) of the Act. 
In addition, proposed Sec.  303.19(c) would clarify that the Bureau of 
Indian Affairs (BIA) in the U.S. Department of the Interior, which is 
only authorized to provide funding to Federally Recognized tribes, is 
not required to provide funding to a State Indian tribe for which the 
BIA is not responsible.
    Section 602(13) of the Act defines Indian tribe to include ``any 
Federal or State Indian tribe'' and does not exclude State Indian 
tribes that are not Federally Recognized tribes. The list of Indian 
entities recognized as eligible to receive services from the United 
States is published in the Federal Register, pursuant to section 104 of 
the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a-
1. The Federal government does not maintain a list of other State 
Indian tribes. Under section 634(1) of the Act, the lead agency in the 
State is responsible for ensuring that early intervention services are 
available to all infants and toddlers with disabilities in the State 
and their families, including Indian infants and toddlers with 
disabilities and their families residing on a reservation 
geographically located in the State.
    Proposed Sec.  303.20 (Individualized family service plan or IFSP) 
would incorporate the language from current Sec.  303.340(b) and would 
clarify, consistent with the Act, that the IFSP must be implemented as 
soon as possible once parental consent to the early intervention 
services on the IFSP is obtained consistent with proposed Sec.  
303.420. The definition of IFSP also would provide that an IFSP is 
based on the evaluation and assessment described in proposed Sec.  
303.320, that it would include the content in proposed Sec.  303.344, 
and that it would be developed under the IFSP procedures in proposed 
Sec. Sec.  303.342, 303.343, and 303.345.
    Proposed Sec.  303.21(a) and (b) (Infant or toddler with a 
disability) would remain substantively unchanged from current Sec.  
303.16 and would reflect the statutory definition of the term in 
section 632(5) of the Act. In addition, the following examples of 
diagnosed conditions, listed in Note 1 following current Sec.  303.16, 
would be included in proposed Sec.  303.21(a)(2)(ii) as follows: 
chromosomal abnormalities, genetic or congenital disorders, severe 
sensory impairments, inborn errors of metabolism, disorders reflecting 
disturbance of the development of the nervous system, and disorders 
secondary to exposure to toxic substances, including fetal alcohol 
syndrome. With this change, Note 1 following current Sec.  303.16 would 
be removed from the regulations. Note 2 following current Sec.  303.16 
would also be removed as the examples of at-risk infants or toddlers 
with disabilities would be incorporated into proposed Sec.  303.5, the 
definition of at-risk infant or toddler.
    Proposed Sec.  303.21(b) would be substantively the same as current

[[Page 26461]]

Sec.  303.16(b), and would cross-reference the definition of an at-risk 
infant or toddler in proposed Sec.  303.5.
    Proposed Sec.  303.21(c) would incorporate the language from 
section 632(5)(B) of the Act that an infant or toddler with a 
disability may include, at the State's discretion, children with 
disabilities who are ages three and older who are eligible for services 
under section 619 of the Act and who previously received Part C 
services.
    Proposed Sec.  303.22 (Lead agency) would be added to make clear 
that the lead agency is the State agency designated by the Governor to 
administer Part C of the Act in the State and would incorporate 
language from section 635(a)(10) of the Act.
    Proposed Sec.  303.23 (Local educational agency or LEA) would be 
added to incorporate the definitions of LEA and educational service 
agency under sections 602(19) and 602(5) of the Act, respectively. We 
would include these definitions because these terms are relevant to the 
State option to make early intervention services available to children 
ages three and older under sections 632 and 635(c) of the Act. In 
addition we would incorporate the applicable 1997 definition of the 
intermediate educational unit (IEU) in order to create a freestanding 
document and assist those lead agencies that are not SEAs.
    Proposed Sec.  303.24 (Multidisciplinary) would modify the 
definition in current Sec.  303.17 to clarify that the term 
multidisciplinary is used with respect to an evaluation and assessment 
of a child, an IFSP team, or IFSP development, and means the 
involvement of two or more individuals from separate disciplines or 
professions, or one individual who is qualified in more than one 
discipline or profession.
    Proposed Sec.  303.25(a)(1) (Native language) would incorporate the 
definition of native language from section 602(20) of the Act and 
current Sec.  303.401(b). Proposed Sec.  303.25(a)(2) would provide 
that in all direct contact with the child, the native language is that 
normally used by the child in the home or the learning environment. 
This addition would be consistent with the definition of this term in 
34 CFR 300.29 of the Part B regulations (71 FR 46759-46760) and is 
appropriate here because it would clarify the language an EIS provider 
must use when providing services to the child. Proposed Sec.  303.25(b) 
would reflect the requirements in current Sec.  303.403(c)(3) and would 
clarify that, when used in connection with an individual with deafness 
or blindness or with no written language, ``native language'' refers to 
the mode of communication that is normally used by that individual, 
such as sign language, Braille, or oral communication.
    Proposed Sec.  303.26 (Natural environments) would remain 
substantively unchanged from current Sec.  303.18, and would add that 
the natural environment may include the home, and must be consistent 
with proposed Sec.  303.126.
    Proposed Sec.  303.27 (Parent) would modify the regulatory 
definition of that term in current Sec.  303.19 to reflect the revised 
statutory definition of parent in section 602(23) of the Act, and to be 
consistent with the definition of parent in 34 CFR 300.30 of the Part B 
regulations (71 FR 46760). Proposed Sec.  303.27(a)(2) would recognize 
that State law may prohibit a foster parent from being considered a 
parent, but also would recognize that similar restrictions may exist in 
State regulations or in contractual agreements between a State or local 
entity and the foster parent, and should be accorded similar deference.
    Proposed Sec.  303.27(b)(1) would provide that the biological or 
adoptive parent would be presumed to be the parent for purposes of the 
regulations. If the biological or adoptive parent were attempting to 
act as the parent under proposed Sec.  303.27 and more than one person 
is qualified to act as a parent under Part C of the Act, the biological 
or adoptive parent would be presumed to be the parent unless that 
person does not have legal authority to make decisions for the infant 
or toddler regarding early intervention services, or there is a 
judicial order or decree specifying some other person to act as the 
parent under Part C of the Act. Proposed Sec.  303.27(b)(2) would 
provide that if a judicial order or decree specifies a person or 
persons to act as the parent, that person would be the parent under 
Part C of the Act. Proposed Sec.  303.27(b)(2), however, would exclude 
an agency involved in providing early intervention services or care of 
the infant or toddler from serving as a parent, consistent with the 
statutory prohibition that applies to surrogate parents in section 
639(a)(5) of the Act. The provisions in proposed Sec.  303.27(b) are 
intended to assist EIS providers and public agencies in identifying the 
appropriate person to serve as the parent under Part C of the Act, 
especially in those difficult situations in which more than one 
caretaker is available to provide consent for evaluation or the 
provision of early intervention services and to make other decisions 
under Part C of the Act.
    Proposed Sec.  303.28 (Parent training and information center) 
would provide that a parent training and information center means a 
center assisted under section 671 or 672 of the Act, in accordance with 
the statutory definition in section 602(25) of the Act.
    Proposed Sec.  303.29 (Personally identifiable) would remain 
substantively unchanged from current Sec.  303.401(c).
    Proposed Sec.  303.30 (Public agency) would remain substantively 
unchanged from current Sec.  303.21.
    Proposed Sec.  303.31 (Qualified personnel) would remain 
substantively unchanged from the definition of qualified in current 
Sec.  303.22. In addition, the note following current Sec.  303.22 
would be removed because the content of that note would be addressed in 
proposed Sec.  303.13(c) regarding the types of qualified personnel who 
provide early intervention services and proposed Sec.  303.119 
regarding the requirement that statewide systems have policies and 
procedures in place relating to personnel standards.
    Proposed Sec.  303.32 (Secretary) would incorporate the definition 
of Secretary from section 602(28) of the Act.
    Proposed Sec.  303.33 (Service coordination services (case 
management)) would replace current Sec.  303.23. Proposed Sec.  
303.33(a) would provide a definition of service coordination services 
and explain that these services include, consistent with current Sec.  
303.23(a), coordinating all services required under Part C of the Act 
across agency lines (i.e., coordinating Part C services provided by 
agencies other than the lead agency). Proposed Sec.  303.33(a)(2) would 
clarify that: service coordinators must assist parents of infants and 
toddlers with disabilities in gaining access to and coordinating the 
provision of early intervention services and coordinating other 
services not provided under Part C of the Act that are needed by the 
infant or toddler with a disability and that child's family and that 
are identified on the IFSP in accordance with proposed Sec.  
303.344(e). Proposed Sec.  303.33 would not require service 
coordinators to be responsible for identifying funding sources for 
those services not covered under Part C of the Act and identified as 
``other services'' on the IFSP under proposed Sec.  303.344(e).
    Proposed Sec.  303.33(a)(3) and (b) would continue to reflect that 
service coordinators are responsible for serving as the single point of 
contact for carrying out the responsibilities under proposed Sec.  
303.33(b). Proposed Sec.  303.33(b) would require service coordinators 
to be responsible for coordinating the performance of evaluations and 
assessments, facilitating

[[Page 26462]]

and participating in the development of IFSPs, assisting families in 
identifying available Part C services, coordinating and monitoring the 
delivery of early intervention services required under Part C of the 
Act, informing families of their rights and procedural safeguards and 
related resources, coordinating the funding sources for early 
intervention services, and facilitating the development of a transition 
plan from the Part C program to other services. Proposed Sec.  
303.33(c) would incorporate the language from Note 2 following current 
Sec.  303.23 to clarify that the lead agency's or an EIS provider's use 
of the term service coordination or service coordination services does 
not preclude characterization of the services as case management or any 
other service that is covered by another payor (including Medicaid), 
for purposes of claims in compliance with the requirements of proposed 
Sec.  303.510 regarding the payor of last resort. With this 
clarification, Note 2 following current Sec.  303.23 would be removed.
    Current Sec.  303.23(c) (Employment and assignment of service 
coordinators) and (d) (Qualification of service coordinators) would not 
be included in proposed Sec.  303.33 because, under proposed Sec.  
303.13(a)(7), service coordination services must be provided by 
qualified personnel as that term is defined in proposed Sec.  303.31. 
Under the definition of qualified personnel, personnel are qualified if 
they have met State approved or recognized certification, licensing, 
registration, or other comparable requirements that apply to the area 
in which the individuals are providing early intervention services. 
Some States, for example, have developed qualified personnel criteria 
under Part C of the Act for an ``early interventionist'' who is able to 
provide service coordination services and other Part C services. 
Consistent with the content of Note 1 following current Sec.  303.23, 
and as addressed elsewhere in this preamble in the discussion related 
to proposed Sec.  303.119, the requirements for a service coordination 
system that includes the qualifications, employment, and assignment of 
service coordinators is best left to the States to decide. With this 
clarification Note 1 would be removed.
    Proposed Sec.  303.34 (State) would remain substantively unchanged 
from current Sec.  303.24, and would reflect the definition of this 
term in section 602(32) of the Act.
    Proposed Sec.  303.35 (State educational agency or SEA) would be 
defined to distinguish it clearly as the State agency that receives 
funds under Part B of the Act and that is responsible for administering 
Part B of the Act (in contrast to the lead agency which may or may not 
be the SEA and which is responsible for implementing Part C of the Act 
in the State).
    Proposed Sec.  303.36 (Ward of the State) would be added to these 
regulations to reflect the definition in section 602(36) of the Act. 
Proposed Sec.  303.36(b), regarding an exception to the ward of the 
State, would be added to clarify that a ward of the State does not 
include a foster child who has a foster parent who meets the definition 
of a parent in proposed Sec.  303.27.
    Current Sec.  303.20, which provides the definition of policies, 
would be removed because the requirements for State policies are 
contained in the State application requirements for a grant under Part 
C of the Act and proposed Sec. Sec.  303.201 through 303.212.

Subpart B--State Eligibility for a Grant and Requirements for a 
Statewide System

    Proposed subpart B would incorporate the Secretary's general 
authority to make grants to States under section 633 of the Act, the 
State eligibility provisions under section 634 of the Act, and the 
requirements for a statewide system under section 635 of the Act. 
Section 633 of the Act gives the Secretary the authority to make grants 
to States. In order to be eligible for a grant under this subpart, 
section 634(1) of the Act requires a State to provide assurances that 
it has adopted a policy that appropriate early intervention services 
are available to all infants and toddlers with disabilities in the 
State and their families. Section 634 of the Act requires a State to 
provide assurances that its statewide system includes the components 
listed in section 635 of the Act; section 634 of the Act no longer 
requires States to submit to the Department policies and procedures 
that demonstrate each of the components. Other specific State 
application requirements (policies, procedures, certifications, 
descriptions, and assurances) in section 637 of the Act would be 
incorporated into subpart C of these regulations.
General Authority and Eligibility
    Proposed Sec.  303.100 would incorporate the language of section 
633 of the Act, providing for the Secretary's authority to make grants 
to States to maintain and implement a statewide system to provide early 
intervention services for infants and toddlers with disabilities and 
their families.
    Proposed Sec.  303.101 would identify the conditions that States 
must meet to be eligible for a grant under Part C of the Act and would 
replace current Sec. Sec.  303.100 and 303.140. Proposed Sec.  
303.101(a)(1) would incorporate the language from section 634 of the 
Act, which requires each State receiving funds under Part C of the Act 
to assure that the State has adopted a policy that early intervention 
services are available to all infants and toddlers with disabilities in 
the State and their families, including Indian infants and toddlers on 
reservations in the State, and infants and toddlers who are homeless 
and their families, and infant and toddlers who are wards of the State. 
Proposed Sec.  303.101(a)(2) would modify current Sec.  303.100(a)(2) 
and require each State to assure that the State has in effect a 
statewide system of early intervention services that meets the 
requirements of section 635 of the Act, including, at a minimum, the 
components required in proposed Sec. Sec.  303.111 through 303.126.
    The requirement in current Sec.  303.100(b) that States have 
policies or procedures on file with the Secretary would be removed 
consistent with section 634 of the Act, which requires that States 
submit assurances regarding the statewide system requirements under 
section 635 of the Act. Consistent with this approach, all other 
provisions in current subpart B that require the policies and 
procedures to be on file with the Secretary would be removed.
    Proposed Sec.  303.101(b) would identify other information and 
assurances that States would be required to provide to the Secretary, 
consistent with section 637 of the Act, to demonstrate that the State 
meets the State application requirements in proposed Sec. Sec.  303.200 
through 303.212.
    Current Sec.  303.101, regarding how the Secretary disapproves a 
State's application, would be substantively included in proposed Sec.  
303.230.
    Current Sec. Sec.  303.110 and 303.111, regarding requirements and 
timelines for public participation and notice of public hearings and 
opportunity to comment, respectively, would be substantively included 
in proposed Sec.  303.208.
    Current Sec.  303.112, regarding public hearings, would be 
substantively included in proposed Sec.  303.208(a)(1).
    Current Sec.  303.113, regarding the review of public comments by 
the lead agency prior to adopting the State's application, would be 
removed because it is not specifically addressed in section 637 of the 
Act.
    Current Sec.  303.120(b) and (c) would be removed because the 
application requirements under Part C of the Act, including the 
assurances that meet the

[[Page 26463]]

requirements in section 637(b) of the Act, are referenced in proposed 
Sec.  303.101(b). The assurance requirements in section 637(b) of the 
Act would be reflected in proposed Sec. Sec.  303.221 through 303.227.
State Conformity With Part C of the Act and Abrogation of State 
Sovereign Immunity
    Proposed Sec.  303.102, consistent with section 608(a)(1) of the 
Act, would require each State that receives funds under Part C of the 
Act to ensure that any State rules, regulations, and policies relating 
to this part conform to the purposes and requirements of the part.
    Proposed Sec.  303.103 would incorporate the provisions of section 
604 of the Act regarding abrogation of State immunity. Proposed Sec.  
303.103(a) would provide that a State is not immune under the 11th 
amendment of the Constitution of the United States from suit in Federal 
court for a violation of Part C of the Act. This is the longstanding 
position of the Department and is consistent with section 604 of the 
Act and Federal Circuit Courts' decisions interpreting this language. 
See, e.g., Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir., 
2005), cert. denied, 126 S.Ct. 416 (2005); M.A. ex rel E.S. v State-
Operated Sch. Dist., 344 F.3d 335 (3rd Cir. 2003); Little Rock Sch. 
Dist. v. Mauney, 183 F.3d 816 (8th Cir. 1999); Marie O. v. Edgar, 131 
F.3d 610 (7th Cir. 1997).
    Proposed Sec.  303.103(b) would incorporate the requirements of 
section 604(b) of the Act regarding remedies in a suit against a State 
for a violation.
    Proposed Sec.  303.103(c), which incorporates section 604(c) of the 
Act, would provide that proposed Sec.  303.103(a) and (b) applies to 
violations that occur in whole or in part after October 1990.
Equipment and Construction
    Proposed Sec.  303.104 would incorporate language from section 605 
of the Act, relating to the acquisition of equipment, construction or 
alteration of facilities. This section would provide guidance to lead 
agencies regarding the use of funds for facility construction impacted 
by Part C of the Act.
Positive Efforts To Employ and Advance Qualified Individuals With 
Disabilities
    We are proposing to add new section Sec.  303.105 to reflect the 
provisions in section 606 of the Act, which require the Secretary to 
ensure that each grant recipient under IDEA make positive efforts to 
employ and advance in employment, qualified individuals with 
disabilities in programs assisted under IDEA.
Minimum Components of a Statewide System
    Proposed Sec.  303.110 would be substantively the same as current 
Sec.  303.160, which refers to the minimum components of a statewide 
system, and would specifically reference the requirements in proposed 
Sec. Sec.  303.111 through 303.126, which align with section 635(a)(1) 
through (16) of the Act.
    Proposed Sec.  303.111 would align with section 635(a)(1) of the 
Act and would replace current Sec. Sec.  303.161 and 303.300. Proposed 
Sec.  303.111 would require the statewide system to include a rigorous 
definition of developmental delay in order to appropriately identify 
infants and toddlers with disabilities who need early intervention 
services, consistent with section 635(a)(1) of the Act and proposed 
Sec. Sec.  303.10 and 303.203(c).
    Proposed Sec.  303.111(a) would generally retain current Sec.  
303.300(a)(1) and would require the State to include in its definition 
of developmental delay the evaluation and assessment procedures that 
would be used to measure an infant's or toddler's development. 
References to informed clinical opinion as one of the procedures used 
to measure an infant's or toddler's development in current Sec.  
303.300(a)(1) would be moved to proposed Sec.  303.320(b)(2).
    Proposed Sec.  303.111(b) would generally retain the requirements 
of current Sec.  303.300(a)(2) and would require the State to describe 
the level of developmental delay in functioning or other comparable 
criteria that could constitute a developmental delay.
    Current Sec.  303.300(c) requires States that serve at-risk infants 
and toddlers to describe the criteria and procedures used to identify 
those infants and toddlers. Current Sec.  303.300(c) would be removed 
because proposed Sec.  303.320(b)(2) would clarify that qualified 
personnel must use their informed clinical opinion to evaluate a 
child's present level of functioning in each of the developmental areas 
identified in proposed Sec.  303.21(a)(1) and that informed clinical 
opinion may be used by qualified personnel to establish a child's 
eligibility for services under Part C of the Act even when other 
instruments do not establish eligibility.
    The note following current Sec.  303.300(c), regarding the required 
use of informed clinical opinion to determine an infant's or toddler's 
eligibility for services, would be moved to proposed Sec.  303.320 
regarding evaluation requirements and is addressed in the discussion of 
subpart D of these regulations.
    Proposed Sec.  303.112 would be added to incorporate the language 
from section 635(a)(2) of the Act and would require each statewide 
system to have a State policy in effect that ensures that early 
intervention services are based on scientifically based research, to 
the extent practicable, and are available to all infants and toddlers 
with disabilities and their families, including Indian infants and 
toddlers with disabilities and their families residing on a reservation 
geographically located in the State, and infants and toddlers with 
disabilities and their families who are homeless.
    Proposed Sec.  303.113, which would align with section 635(a)(3) of 
the Act, would replace current Sec.  303.166, and would require each 
statewide system to ensure a timely, comprehensive, multidisciplinary 
evaluation of each infant or toddler with a disability in the State, 
and a family-directed identification of the needs of each infant's or 
toddler's family to assist appropriately in the development of the 
infant or toddler. Proposed Sec.  303.113(b) would cross-reference the 
provisions in proposed Sec.  303.320. These cross-references are 
necessary because the specific requirements for evaluations would be 
included in proposed Sec.  303.320.
    Proposed Sec.  303.114 would generally retain the provisions in 
current Sec.  303.167(a) and (b) and would require each statewide 
system to develop an IFSP for each infant or toddler with a disability 
in the State, consistent with section 635(a)(4) of the Act. Current 
Sec.  303.167(c) would be removed because the requirements regarding 
IFSPs and natural environments would be included in proposed Sec. Sec.  
303.13(a)(8), 303.26, and 303.344(d)(1)(ii).
    Proposed Sec.  303.115, regarding a comprehensive child find 
system, would align with section 635(a)(5) of the Act and would replace 
current Sec.  303.165. The provisions in current Sec.  303.321 
regarding a comprehensive child find system would be incorporated in 
proposed Sec. Sec.  303.301 through 303.303, which would be cross-
referenced in proposed Sec.  303.115. Proposed Sec.  303.115 would 
require each statewide system to have a comprehensive child find system 
that meets the requirements in proposed Sec. Sec.  303.301 through 
303.303; these requirements include that a State's comprehensive child 
find system be consistent with Part B of the Act and that it ensures 
rigorous standards to identify infants and toddlers with disabilities 
for services under Part C of the Act that will reduce the need for 
future services.

[[Page 26464]]

    Proposed Sec.  303.116, regarding public awareness, would align 
with section 635(a)(6) of the Act and would replace current Sec.  
303.164. Proposed Sec.  303.116, consistent with section 635(a)(6) of 
the Act, would set forth the requirements for the statewide system's 
public awareness program, which would focus on early identification of 
infants and toddlers with disabilities and provide information to 
parents of infants and toddlers through primary referral sources.
    Proposed Sec.  303.117, regarding the requirements for a central 
directory, would align with section 635(a)(7) of the Act and would 
combine the requirements of current Sec. Sec.  303.162 and 303.301(a). 
The provisions in current Sec.  303.301(c) requiring the central 
directory to be up-to-date and accessible to the general public 
generally would be included in the introductory text of proposed Sec.  
303.117. Proposed Sec.  303.117, however, would also clarify that the 
lead agency must ensure that the central directory is accessible 
through the lead agency's Web site and other appropriate means as the 
requirement in current Sec.  303.301(d) that the lead agency arrange 
for copies of the directory to be available in each geographic region 
of the State is no longer necessary, as the vast majority of States 
maintain the directory on their Web sites. Current Sec.  303.301(b), 
which includes the details of the content of the central directory and 
current Sec.  303.301(d), which includes the locations and manners of 
accessibility, would be removed. Most States now maintain this 
information on their Web site and can easily update it more quickly 
than is required under current Sec.  303.301.
    The note following current Sec.  303.301, which gives examples of 
appropriate groups that provide assistance to infants and toddlers with 
disabilities and families, would be removed as unnecessary. Proposed 
Sec.  303.117 would include language regarding appropriate groups that 
would provide assistance to infants and toddlers with disabilities and 
their families, including public and private early intervention 
services, resources and experts available in the State, and parent 
support and training and information centers such as those funded under 
the Act.
    Proposed Sec.  303.118, regarding the comprehensive system of 
personnel development (CSPD), would replace current Sec. Sec.  303.168 
and 303.360 to parallel the requirements and order of section 635(a)(8) 
of the Act. The introductory paragraph of proposed Sec.  303.118 would 
combine the provisions in current Sec.  303.360(b)(3) and (4), and 
would require each statewide system to include a CSPD that addresses 
the training of paraprofessionals and primary referral sources with 
respect to the basic components of early intervention services in the 
State.
    Proposed Sec.  303.118(a) would replace current Sec.  
303.360(c)(1), (2), and (4), and would, consistent with section 
635(a)(8)(A) of the Act, list the training that now must be included in 
the CSPD. Proposed Sec.  303.118(a)(1) would retain the language in 
current Sec.  303.360(c)(1) regarding training on innovative strategies 
to recruit and retain EIS providers. Proposed Sec.  303.118(a)(2) would 
retain the language in current Sec.  303.360(c)(2) regarding promoting 
the preparation of EIS providers who are fully and appropriately 
qualified. Under current Sec.  303.360(c)(1) and (2), including this 
training in the CSPD was permissive. Consistent with section 
635(a)(8)(A) of the Act, however, the training in proposed Sec.  
303.118(a)(1) and (2) would be required to be included in the CSPD.
    Proposed Sec.  303.118(a)(3), regarding training personnel to 
coordinate transition services, would generally retain the language in 
current Sec.  303.360(c)(4) and would reference a preschool program 
under Part B of the Act, Head Start, Early Head Start, and an 
elementary school under Part B of the Act as programs to which children 
receiving services under Part C of the Act may transition to, 
consistent with sections 635(a)(8)(A)(iii) and 637(a)(10) of the Act. 
Consistent with sections 635(a)(8)(A) and (c) and 637(a)(10) of the 
Act, including this training in the CSPD would now be mandatory.
    Proposed Sec.  303.118(b)(1) would retain current Sec.  
303.360(c)(3) and would allow (but not specifically require, consistent 
with section 635(a)(8)(B)(i) of the Act) training for personnel to work 
in rural and inner-city areas. Proposed Sec.  303.118(b)(2) would 
replace current Sec.  303.360(b)(4)(ii) and would allow training of 
personnel in the emotional and social development of infants and 
toddlers, consistent with section 635(a)(8)(B)(ii) of the Act. Proposed 
Sec.  303.118(b)(3) would replace current Sec.  303.360(b)(4)(iii) and 
would clarify that States may train personnel to support families to 
participate fully in the development and implementation of their 
child's IFSP.
    References in current Sec.  303.360(b)(3) and (c)(2) to training a 
variety of personnel needed to meet the requirements of the 
regulations, including the training of service coordinators, would be 
removed as redundant. Proposed Sec.  303.119(a) requires States to have 
policies and procedures to ensure that personnel necessary to carry out 
the purposes of this part are appropriately and adequately prepared and 
trained.
    Current Sec.  303.360(b)(1), regarding consistency with the CSPD 
under Part B of the Act, would be removed because Part B of the Act was 
revised to eliminate references to a CSPD. Current Sec.  303.360(b)(2), 
requiring that preservice and inservice training be conducted on an 
interdisciplinary basis, to the extent appropriate, would be removed 
because whether to conduct preservice and inservice training that 
includes an interdisciplinary methodology or other methodology, is a 
decision best left to the States because each State determines the 
qualifications needed for personnel providing services under Part C of 
the Act.
    Proposed Sec.  303.119, regarding personnel standards, would 
combine current Sec.  303.169 and relevant provisions in current Sec.  
303.361 to parallel the requirements of section 635(a)(9) of the Act.
    Proposed Sec.  303.119(a) would substantively retain language from 
current Sec.  303.361(b)(1) to clarify that each system must include 
policies and procedures relating to the establishment and maintenance 
of qualification standards to ensure that personnel are appropriately 
and adequately trained.
    Consistent with section 635(a) of the Act and current Sec.  
303.361(b)(2), proposed Sec.  303.119(b) would require the 
establishment and maintenance of qualification standards, to be 
consistent with any State-approved or State-recognized certification, 
licensing, registration, or other comparable requirements, and to apply 
to the profession, discipline, or area in which personnel are providing 
early intervention services.
    Current Sec.  303.361(a), (c), (d), and (e) would be removed, 
consistent with statutory changes that removed the requirement that 
State's policies and procedures include the steps for retraining or 
hiring personnel when the State's personnel standards are not based on 
the State's requirements for these personnel.
    Proposed Sec.  303.119(c), allowing the use of appropriately 
trained and supervised paraprofessionals and assistants to assist in 
the provision of early intervention services, would replace and 
substantively be the same as current Sec.  303.361(f).
    Proposed Sec.  303.119(d), which allows a State to adopt a policy 
to hire the most qualified individuals available who are making 
satisfactory progress toward completing applicable coursework necessary 
to meet the State's personnel standards, would be the same as current

[[Page 26465]]

Sec.  303.361(g), except that the requirement that those persons work 
to complete the necessary course work in three years would be removed 
because of the removal of this three-year requirement from section 
635(a)(9) of the Act.
    The note following current Sec.  303.361 would be removed because 
the first paragraph in the note addresses the requirement that 
personnel standards be based on the State's highest standard, which was 
removed from the Act. The second paragraph in the note following 
current Sec.  303.361, regarding a State's ability to establish 
standards, would be removed as unnecessary because the licensure and 
other standards for occupational categories have always been subject to 
State, not Federal, standards, and States have always had the 
flexibility to establish standards higher than Federal standards in 
this area.
    Proposed Sec.  303.120, regarding supervision, monitoring, funding, 
interagency coordination, and other lead agency responsibilities would 
combine current Sec. Sec.  303.171, 303.500, and 303.501 to parallel 
the organization and content of section 635(a)(10) of the Act.
    The introductory paragraph in proposed Sec.  303.120 would 
incorporate the requirement in section 635(a)(10) of the Act and 
current Sec.  303.500 that each statewide system include a single line 
of responsibility in a lead agency designated or established by the 
Governor.
    Proposed Sec.  303.120(a)(1) through (a)(2)(iv) would remain 
substantively unchanged from current Sec.  303.501(a) and (b)(1) 
through (b)(4), except that proposed Sec.  303.120(a)(2)(iv), regarding 
the correction of noncompliance identified through monitoring, would 
add that the correction must be made as soon as possible and in no case 
later than one year after the lead agency's identification of the 
noncompliance. We are proposing that the correction be made as soon as 
possible and in no case later than one year after the lead agency's 
identification of the noncompliance because, based on our monitoring 
activities, we have determined that correction of noncompliance does 
not always occur in a timely manner. Proposed Sec.  303.120(a)(2)(iv) 
would align with proposed Sec.  303.700(e) to clarify expectations 
regarding the timely correction of noncompliance. It is important to 
correct noncompliance in a timely manner to ensure that infants and 
toddlers with disabilities and their families receive appropriate early 
intervention services. Correction of noncompliance means that the State 
required the EIS program or EIS provider to revise any noncompliant 
policies, procedures and/or practices and the State has verified 
through follow-up review of data, other documentation and/or interviews 
that the noncompliant policies, procedures and/or practices have been 
revised and the noncompliance has been corrected. We believe that one 
year is a reasonable amount of time for the State to verify the 
correction of policies, procedures and/or practices.
    Proposed Sec.  303.120(a)(2)(v), regarding the activities related 
to monitoring agencies, would reference the monitoring and enforcement 
requirements in proposed Sec. Sec.  303.700 through 303.707 that the 
lead agency must meet in implementing the requirements of proposed 
Sec.  303.120(a)(2)(i) through (iv).
    Proposed Sec. Sec.  303.700 through 303.706 would align with 34 CFR 
300.600 through 300.606 of the Part B regulations (71 FR 46800-46802). 
Proposed Sec.  303.707 would reference the authority under GEPA for 
monitoring and enforcement, including the imposition of special 
conditions in 34 CFR Sec.  80.12. Proposed Sec.  303.708 would clarify 
continued State flexibility to use other available authorities to 
monitor and enforce the requirements of Part C of the Act.
    Proposed Sec.  303.120(b), which would require the lead agency to 
identify and coordinate all available resources for early intervention 
services in the State, would incorporate the language in section 
635(a)(10)(B) of the Act and would be the same as current Sec.  
303.522(a)(1). Proposed Sec.  303.120(c) through (f) would reference 
requirements in proposed subpart F regarding use of funds and would be 
added to conform to section 635(a)(10)(C) through (F) of the Act.
    Proposed Sec.  303.120(f) would indicate that in addition to formal 
interagency agreements, there may be other written methods of 
establishing financial responsibility consistent with proposed Sec.  
303.511 because proposed Sec.  303.511(a)(3) would clarify that 
appropriate written methods may be used for establishing financial 
responsibility, as determined by the Governor of the State, or the 
Governor's designee, and approved by the Secretary through the review 
and approval of the State's application.
    Proposed Sec.  303.121, regarding contracting or otherwise 
arranging for services, would replace the requirements in current 
Sec. Sec.  303.175 and 303.526, consistent with section 635(a)(11) of 
the Act. Proposed Sec.  303.121 would require each statewide system to 
include a policy for contracting or making other arrangements with 
public or private providers for services. Proposed Sec.  303.121(a) 
would incorporate the provision in current Sec.  303.526(a) regarding 
the State policy including a requirement that all early intervention 
services meet State standards and be consistent with Part C of the Act.
    Proposed Sec.  303.121(b) would add a reference to the requirements 
found in part 80 of the Education Department General Administrative 
Regulations (EDGAR). This is not a new requirement because current 
Sec.  303.5 already provides that EDGAR requirements, including part 
80, apply to grant recipients under Part C of the Act. Current Sec.  
303.526(b) and (c) would be removed as redundant because these 
requirements are found in EDGAR provisions in 34 CFR part 80, and 
compliance with 34 CFR part 80 would be required by proposed Sec.  
303.121.
    The note following current Sec.  303.526, regarding the option to 
continue using public and private personnel who meet the requirements 
of Part C of the Act as service providers, would be removed because 
proposed Sec.  303.12 (the definition of EIS provider) would clarify 
that States may use public or private entities or individuals to 
provide early intervention services. The content of the note following 
current Sec.  303.526 would not provide additional information or 
clarity to proposed Sec.  303.12.
    Proposed Sec.  303.122, regarding reimbursement procedures, would 
incorporate language from section 635(a)(12) of the Act and would 
remain substantively unchanged from current Sec.  303.528, with cross-
references updated.
    Proposed Sec.  303.123, which would incorporate language from 
section 635(a)(13) of the Act, would replace current Sec.  303.170 and 
would require each statewide system to meet the procedural safeguard 
requirements in subpart E of these proposed regulations.
    Proposed Sec.  303.124, regarding data collection procedures, would 
incorporate the requirements of section 635(a)(14) of the Act and would 
adopt by reference the Part C data requirements in sections 616 and 618 
of the Act that are reflected in proposed Sec. Sec.  303.700 through 
303.702 and proposed Sec. Sec.  303.720 through 303.724. Proposed Sec.  
303.124 would require States to adopt data systems for reporting the 
data to the Secretary and would generally include the language in 
current Sec. Sec.  303.176 and 303.540.
    Consistent with the reporting requirements in sections 616 and 618 
of the Act, proposed Sec.  303.124(a) would

[[Page 26466]]

include language indicating that the statewide system must compile and 
report data that are timely and accurate to align with the reporting 
requirements in Sec. Sec.  303.700 through 303.702 and 303.720 through 
303.724. The references to timely and accurate reporting on State data 
in proposed Sec.  303.124(a) are necessary for the Department to 
implement section 616 of the Act. The requirements regarding 
disproportionality in section 618(d) of the Act do not apply to Part C 
of the Act because the findings in section 601(c)(12) of the Act make 
clear that these provisions were enacted to reflect concerns under Part 
B of the Act, not Part C of the Act.
    Proposed Sec.  303.124(b) would require the data collection process 
to include a description of the sampling methods, if used by the State 
to collect data in accordance with proposed Sec. Sec.  303.701(c)(2) 
and 303.722(b).
    Proposed Sec.  303.125, regarding the Council, would incorporate 
the language in section 635(a)(15) of the Act and current Sec.  303.141 
and would require the statewide system to include a Council. This 
section also would cross-reference subpart G of these proposed 
regulations, which would contain the specific requirements for the 
Council.
    Proposed Sec.  303.126, regarding the provision of early 
intervention services in natural environments to the maximum extent 
appropriate, would align with section 635(a)(16) of the Act and would 
generally remain substantively unchanged from current Sec. Sec.  
303.12(b) and 303.344(d)(1)(ii).
    Proposed Sec.  303.126(b) would add language from section 
635(a)(16) of the Act requiring that, when early intervention cannot be 
achieved satisfactorily in a natural environment, it must be provided 
in a setting that is most appropriate, as determined by the parent and 
the IFSP team. Proposed Sec.  303.126 would not change the longstanding 
requirements regarding the provision of early intervention services in 
an infant's or toddler's natural environment and would be read in 
conjunction with proposed Sec.  303.344(d)(1)(ii)(B), which would 
clarify that any justification for providing an early intervention 
service in a setting other than the infant's or toddler's natural 
environment must be based on the child's outcomes identified by the 
IFSP team in the infant's or toddler's IFSP.

Subpart C--State Application and Assurances

    Proposed subpart C would contain the specific State application 
content requirements that are reflected in section 637 of the Act.
    Proposed Sec.  303.200(a) would require each application to contain 
the specific requirements in proposed Sec. Sec.  303.201 through 
303.212, which would incorporate, respectively, the requirements in 
section 637(a)(1) through (11) of the Act. Proposed Sec.  303.200(b) 
would require each application to contain assurances that the State has 
met the requirements under proposed Sec. Sec.  303.220 through 303.227, 
which would incorporate, respectively, the assurance requirements in 
section 637(b)(1) through (7) of the Act.
Application Requirements
    Proposed Sec.  303.201 would require each application to include a 
designation of the lead agency in the State responsible for the 
administration of funds. The proposed regulation would be the same as 
current Sec.  303.142, consistent with section 637(a)(1) of the Act.
    Proposed Sec.  303.202 would require each application to include a 
certification that the arrangements to establish financial 
responsibility for the provision of services under Part C of the Act 
among appropriate public agencies under proposed Sec.  303.511 and the 
lead agency's contracts with EIS providers regarding financial 
responsibility for the provision of Part C services meet the 
requirements in proposed Sec. Sec.  303.500 through 303.521 and are 
current as of the date of submission of the certification. Proposed 
Sec.  303.202 would replace current Sec.  303.143, consistent with 
section 637(a)(2) of the Act. Proposed Sec.  303.202 cross-references 
proposed Sec. Sec.  303.500 through 303.521 and requires the 
arrangements to establish financial responsibility for the provision of 
Part C services to be current as of the date of the certification, 
consistent with a change to section 637(a)(2) of the Act.
    Proposed Sec.  303.203 would require each application to include: 
(a) A description of the services to be provided; (b) the State's 
policies on funding sources (including any system of payments); and (c) 
the State's rigorous definition of developmental delay, as required 
under proposed Sec. Sec.  303.10 and 303.111 and section 637(a)(3)(A) 
of the Act. These three elements are key variables in State Part C 
systems and the Department needs this information in the application to 
understand each State's Part C system and interpret data from each 
State under sections 616, 618, and 642 of the Act.
    Proposed Sec.  303.204, which aligns with section 637(a)(4) of the 
Act, would require each State that provides services to at-risk infants 
and toddlers with disabilities to include the State's definition of at-
risk infants and toddlers with disabilities in its State application. 
This information is necessary to appropriately interpret child find and 
other data required to be reported by States under sections 616, 618, 
and 642 of the Act. Proposed Sec.  303.204(b) would require each 
application to include, consistent with section 637(a)(4) of the Act, a 
description of the early intervention services to be provided to at-
risk infants and toddlers with disabilities if the State elects to 
serve such children.
    Proposed Sec.  303.205(a) would be substantively the same as 
current Sec.  303.145(a) and would continue to require each application 
to include a description of the use of funds, presented separately for 
the lead agency and the Council.
    Proposed Sec.  303.205(b) would require lead agencies, other than 
SEAs, to identify the total amount the lead agency will retain for 
State administration. Additionally, proposed Sec.  303.205(b) would 
require those lead agencies, other than SEAs, to include the total 
number of full time equivalent administrative positions and the total 
salaries, including benefits, for these positions, rather than 
position-specific descriptions and detailed itemized salary information 
as in current Sec.  303.145(b). SEAs are excluded from this requirement 
because the Department is the cognizant Federal agency for SEAs for 
purposes of determining the State's restricted indirect cost rate under 
Parts B and C of IDEA. However for lead agencies that are not SEAs, the 
Department often does not obtain any other information about the lead 
agency's administrative expenses. This proposed change to report on 
aggregated administrative expenses would reduce the burden on States 
when reporting costs, positions, and salaries for State administration.
    Proposed Sec.  303.205(c) would generally be the same as current 
Sec.  303.145(c) and would require each application to include a 
description of each major activity and the funds to be spent on each 
activity, consistent with proposed Sec.  303.501. Proposed Sec.  
303.205(d) would generally be the same as current Sec.  303.145(d)(1) 
and (2)(ii), with updated cross-references, and would require each 
State application to include a description of any direct services the 
State expects to provide using Federal Part C funds and the approximate 
amount of funds to be used for the provision of each direct service.

[[Page 26467]]

    Proposed Sec.  303.205(e) would be the same as current Sec.  
303.145(f) and would require the application to include information on 
other agencies expected to receive funds under this part. This 
information is required in the application because of interagency 
funding provisions and the interagency coordination provisions in 
sections 635(a)(10)(B) and (F), and 637(a)(3) and (5) of the Act.
    Proposed Sec.  303.206 would be added to align with section 
637(a)(6) of the Act. Proposed Sec.  303.206 would require each 
application to include the State's policies and procedures that require 
the referral for early intervention services of a child under the age 
of three who is involved in a substantiated case of child abuse or 
neglect or is identified as affected by illegal substance abuse, or 
withdrawal symptoms resulting from prenatal drug exposure, consistent 
with proposed Sec.  303.302. This requirement has applied to State 
agencies receiving funds under the Child Abuse Prevention and Treatment 
Act (CAPTA) in 42 U.S.C. 5106a since June 2003. A comparable 
requirement was added to section 637(a)(6) of the Act for Part C lead 
agencies, effective July 1, 2005.
    Proposed Sec.  303.207, which would align with section 637(a)(7) of 
the Act, would require that each application include a description of 
the procedure used to ensure that resources are available for all 
geographic areas within the State and would be substantively the same 
as current Sec.  303.147.
    Proposed Sec.  303.208 would incorporate language from section 
637(a)(8) of the Act and would combine requirements in current 
Sec. Sec.  303.110, 303.112, 303.113(b), and 303.146. Proposed Sec.  
303.208(a)(1) would generally be the same as current Sec.  303.110 and 
would require public hearings, adequate notice of hearings, and an 
opportunity for comment to the general public, including individuals 
with disabilities and parents of infants and toddlers with 
disabilities, prior to the State's adoption of any new or revised 
policy or procedure under Part C of the Act.
    Proposed Sec.  303.208(b) would clarify that policies, procedures, 
and methods that are subject to the public participation requirements 
in proposed Sec.  303.208 and are required to be submitted to the 
Secretary under subparts B and C of these proposed regulations must be 
approved by the Secretary prior to implementation.
    The remaining specific requirements in current Sec. Sec.  303.111 
through 303.113 would be eliminated because States are required to 
comply with the public participation requirements of proposed Sec.  
303.208(a) and GEPA and obtain approval by the Secretary for specific 
application requirements that are subject to the public participation 
requirements in proposed Sec.  303.208. These requirements provide 
sufficient opportunities for public comment.
    Proposed Sec.  303.209, regarding the transition of children from 
services under Part C of the Act to preschool and other programs, would 
incorporate language from section 637(a)(9) of the Act, and would be 
similar to current Sec.  303.148. The note following current Sec.  
303.148, regarding matters that should be considered in developing 
policies and procedures to ensure a smooth transition of children from 
one program to the other, would be removed because it is covered by 
proposed Sec.  303.209 and section 637(a)(9) of the Act, which identify 
the specific early childhood transition requirements.
    Proposed Sec.  303.209(a)(1) would require each State application 
to include a description of the policies and procedures the State will 
use to ensure a smooth transition for toddlers with disabilities 
leaving the early intervention program to attend preschool, school, or 
other appropriate services, or exit the program, and their families. 
Proposed Sec.  303.209(a)(1) would add language to ensure a smooth 
transition from the early intervention program to preschool, school, or 
other appropriate services for toddlers receiving services as a result 
of the State's election to make available early intervention services 
to children with disabilities ages three and older in accordance with 
proposed Sec.  303.211.
    Proposed Sec.  303.209(a)(2) would add language requiring States to 
describe how they would meet each of the requirements related to 
toddlers transitioning from services under Part C of the Act to 
preschool and other programs in proposed Sec.  303.209(b) through (d).
    Proposed Sec.  303.209(a)(3)(i) would revise the language in 
current Sec.  303.148(c) to require all States (not just those in which 
the SEA is not the lead agency) to establish an interagency or intra-
agency agreement between the programs under Part C and Part B of the 
Act.
    Proposed Sec.  303.209(a)(3)(ii) would clarify that the agreement 
must contain provisions for how the lead agency and the SEA will meet 
the requirements of Part C of the Act in proposed Sec.  303.209(b) 
through (d), regarding LEA notification and transition conferences and 
plans. In addition, the agreement must contain provisions for how the 
lead agency and the SEA will meet the requirements in proposed Sec.  
303.344(h), regarding IFSP content and transition steps and services, 
and the following Part B regulations: 34 CFR 300.124 (Transition of 
children from the Part C program to preschool programs) (71 FR 46766), 
34 CFR 300.321(f) (Initial IEP Team meeting for child under Part C) (71 
FR 46788), and 34 CFR 300.323(b) (IEP or IFSP for children aged three 
through five) (71 FR 46789).
    Proposed Sec.  303.209(a)(3)(ii) would also require a State to have 
an interagency agreement to ensure a seamless transition between 
services under Part C of the Act to services under Part B of the Act.
    Proposed Sec.  303.209(a)(4) would require that the State 
application must include any policy adopted by the State under proposed 
Sec.  303.401(e).
    Proposed Sec.  303.209(b)(1) would include the requirement in 
current Sec.  303.148(a) that each application include a description of 
how families will be included in the transition plan.
    Proposed Sec.  303.209(b)(2) would be similar to current Sec.  
303.148(b)(1) but would clarify, consistent with section 
637(a)(9)(A)(ii)(II) of the Act, the timeline applicable to transition 
requirements. Proposed Sec.  303.209(b)(2)(i) would require that each 
State include in its application a description of how the lead agency 
will notify, at least nine months before the toddler's third birthday, 
the LEA for the area in which the toddler resides--or, if appropriate, 
the SEA--that the toddler on his or her third birthday will reach the 
age of eligibility for preschool or school services under Part B of the 
Act.
    Proposed Sec.  303.209(b)(2)(ii) would also clarify that, if a 
toddler is referred for early intervention services under Part C of the 
Act within the nine-month period before the toddler's third birthday, 
the lead agency, as soon as possible after determining the child's 
eligibility, will notify the LEA for the area in which the toddler 
resides--or, if appropriate, the SEA--that the toddler on his or her 
third birthday will reach the age of eligibility for preschool or 
school services under Part B of the Act. Proposed Sec.  303.209(b)(3) 
would clarify that if a State adopts a policy under proposed Sec.  
303.401(e), the lead agency's notification obligations under proposed 
Sec.  303.209(b)(2)(i) and (ii) must be consistent with the policy. 
Proposed Sec.  303.401(e) are discussed in subpart E of this preamble.
    Proposed Sec.  303.209(c) would retain the requirement in current 
Sec.  303.148(b)(2)(i) that the State lead agency convene, with the 
approval of the family, a conference among the lead agency, the family, 
and the LEA to discuss any services under Part B of the

[[Page 26468]]

Act that the toddler with a disability may receive.
    Proposed Sec.  303.209(c)(1), similar to current Sec.  
303.148(b)(2)(i) would require that, for a toddler with a disability 
who is potentially eligible under Part B of the Act, the transition 
conference is to be convened not fewer than 90 days before the 
toddler's third birthday. Current Sec.  303.148(b)(2)(i) allows the 
conference, at the discretion of the parties, to be held up to six 
months before the child is eligible for preschool services. Proposed 
Sec.  303.209(c)(1) would change this time period to not more than nine 
months before the toddler's third birthday, consistent with changes in 
section 637(a)(9) of the Act.
    Proposed Sec.  303.209(c)(2) would substantively be the same as 
current Sec.  303.148(b)(2)(ii) and would require the lead agency, for 
the toddler with a disability who may not be eligible for services 
under Part B of the Act, to make reasonable efforts to convene a 
conference with the lead agency, the family, and providers of other 
appropriate services to discuss services the toddler may receive.
    Proposed Sec.  303.209(d)(1) would substantively include the 
provisions in current Sec.  303.148(b)(3) and would require a review of 
the toddler with a disability's program options for the period from the 
toddler's third birthday through the remainder of the school year.
    Proposed Sec.  303.209(d)(2) would require the lead agency to 
establish a transition plan, as in current Sec.  303.148(b)(4). 
Proposed Sec.  303.209(d)(2) would also clarify that the transition 
plan be established in the IFSP not fewer than 90 days (and at the 
discretion of all parties, not more than nine months) before the 
toddler's third birthday to align with the LEA notification and 
transition conference timelines.
    Proposed Sec.  303.209(d)(3) would add a requirement that the 
transition plan include steps for the toddler with a disability and his 
or her family to exit from the program, consistent with section 
637(a)(9) of the Act, and also specify that the transition plan must 
include any transition services needed, consistent with section 
636(a)(3) of the Act.
    Proposed Sec.  303.210 would be added to require each application 
to describe State efforts to promote collaboration among Early Head 
Start programs, early education and child care programs, and early 
intervention services, consistent with section 637(a)(10) of the Act 
and would also reference Head Start in the list of early education 
programs.
    Proposed Sec.  303.211 would incorporate the language in section 
635(c) of the Act providing States the option to make early 
intervention services available to children beginning at three years of 
age until the children enter, or are eligible under State law to enter, 
kindergarten or elementary school. Proposed Sec.  303.211(a)(1) would 
allow a State to elect to include in its Part C application, a State 
policy developed jointly by the lead agency and the SEA, to make early 
intervention services available to certain children with disabilities. 
If a State elects to include such a policy, children who are eligible 
for services under section 619 of the Act, and who were previously 
receiving early intervention services under Part C of the Act, would 
continue to receive early intervention services, if their parents 
choose to continue those services.
    Proposed Sec.  303.211(a)(2) would clarify that States may choose 
to serve a subset of children between age three and the age at which 
the children enter, or are eligible to enter, kindergarten or 
elementary school. This provision would take into consideration States 
that have preschool programs for many or all children starting at age 
four, and would give those States the flexibility to provide early 
intervention services until the beginning of the school year following 
the child's third, fourth or fifth birthday. Although proposed Sec.  
303.211(a)(2) would allow States to serve a subset of children between 
age three and the age at which children enter, or are eligible to 
enter, kindergarten or elementary school, the option would not extend 
to serving only a specific disability group.
    Proposed Sec.  303.211(b)(1) would require States that choose to 
provide early intervention services to children under this proposed 
section to ensure, consistent with section 635(c)(2)(A)(i) and (ii) of 
the Act, that the parents of children with disabilities served under 
this option would be provided with an annual notice that includes: a 
description of the rights of the parents to elect to receive early 
intervention services under Part C of the Act or preschool services 
under Part B of the Act; an explanation of the differences between 
early intervention services provided under Part C of the Act and 
preschool services provided under Part B of the Act, including the 
types of services and the locations at which the services are provided; 
the procedural safeguards that apply; and possible costs, if any, to 
parents of infants or toddlers with disabilities receiving early 
intervention services. Proposed Sec.  303.211(b)(2) would incorporate 
the requirement in section 635(c)(2)(B) of the Act that early 
intervention services provided to children with disabilities under this 
proposed section include an educational component that promotes school 
readiness and incorporates preliteracy, language, and numeracy skills.
    Proposed Sec.  303.211(b)(3) would incorporate section 635(c)(2)(C) 
of the Act and would require the statewide system to ensure that the 
State policy would not affect the right of any child to receive FAPE 
under Part B of the Act instead of early intervention services under 
Part C of the Act.
    Proposed Sec.  303.211(b)(4) would require, consistent with section 
635(c)(2)(D) of the Act, that all early intervention services outlined 
in the child's IFSP be continued while any eligibility determination is 
being made for services under proposed Sec.  303.211, and clarify that 
this provision is subject to the pendency provision in proposed Sec.  
303.430(e).
    Proposed Sec.  303.211(b)(5) would incorporate the requirement in 
section 635(c)(2)(E) of the Act that the State obtain informed consent 
from the parents of any child to receive early intervention services, 
where practicable, before the child reaches three years of age.
    Proposed Sec.  303.211(b)(6) would provide, consistent with section 
635(c)(2)(F) of the Act, that the transition timeline requirements in 
proposed Sec.  303.209(c)(1) and (d)(2) regarding the transition 
conference and plan do not apply with respect to a child who is 
receiving early intervention services under proposed Sec.  303.211 
until not fewer than 90 days--and, at the discretion of the parties to 
the conference, not more than nine months--before the time the child is 
expected to no longer receive early intervention services. The 
transition conference and plan would occur between the time that the 
child is three years old and the time the child enters, or is eligible 
to enter, kindergarten, depending on how long the State made those 
services available under proposed Sec.  303.211.
    Proposed Sec.  303.211(b)(7) would require a referral for 
evaluation for early intervention services of a child under the age of 
three who experiences a substantiated case of trauma due to exposure to 
family violence, as defined in section 320 of the Family Violence 
Prevention and Services Act, consistent with section 635(c)(2)(G) of 
the Act. Proposed Sec.  303.211(b)(7) would clarify that such referral 
is dependent upon parental consent. Parental consent would be required 
to balance the need to protect the safety needs of the parent

[[Page 26469]]

seeking shelter because of family violence, as defined in section 320 
of the Family Violence Prevention and Services Act, 42 U.S.C. 10401 et 
seq., with the child find mandate under Part C of the Act.
    Proposed Sec.  303.211(c) would incorporate language from section 
635(c)(3) of the Act and would require each State that provides early 
intervention services to children ages three and older to report to the 
Secretary the number and percentage of children who are eligible for 
services under section 619 of the Act, but whose parents choose to 
continue early intervention services for their child. Consistent with 
section 635(c)(4) of the Act, proposed Sec.  303.211(d) would require 
States that choose to provide early intervention services to children 
ages three and older to describe the funds that will be used to ensure 
that this option is available to eligible children and families who 
provide consent. The description must include the Federal, State, or 
local funds that will be used and the fees, if any, to be charged to 
families with public or private insurance under a State's system of 
payments adopted under section 632(4)(B) of the Act and proposed 
Sec. Sec.  303.520 and 303.521.
    Proposed Sec.  303.211(e)(1) would incorporate the language in 
section 635(c)(5)(A) of the Act that provides that when a statewide 
system includes a policy to provide early intervention services to a 
child with a disability who is eligible for services under section 619 
of the Act, it is not required to provide the child FAPE under Part B 
of the Act for the period of time during which the child is receiving 
early intervention services.
    Proposed Sec.  303.211(e)(2) would incorporate the language in 
section 635(c)(5)(B) of the Act that clarifies that a provider of early 
intervention services is not required to provide a child receiving 
early intervention services with FAPE.
    Proposed Sec.  303.212, which requires each application to include 
any other information and assurances that the Secretary may reasonably 
require, would be added to incorporate the provisions in section 
637(a)(11) of the Act. This regulation would provide for the Secretary 
to require the States to submit other reasonable information and 
assurances in the State's application for funds under Part C of the 
Act, and would be enforced as any other requirement in this part in 
order for a State to receive a grant under section 633 of the Act.
Assurances
    The assurances in proposed Sec. Sec.  303.221 through 303.227 would 
follow the order of the assurance requirements in section 637(b) of the 
Act.
    Proposed Sec.  303.220 would specify that each State application 
must include the assurances required in proposed Sec. Sec.  303.221 
through 303.227, which would reflect the requirements in section 
637(b)(1) through (7) of the Act.
    Proposed Sec.  303.221, regarding the expenditure of funds, would 
reflect section 637(b)(1) of the Act and would retain the substance of 
current Sec.  303.127, with cross-references updated.
    Proposed Sec.  303.222, requiring the State to comply with the 
payor of last resort requirements in subpart F of these proposed 
regulations, would replace current Sec.  303.126. Current Sec.  
303.126(a) and (b), which reference the requirements on non-
substitution of funds and non-reduction of other benefits, would now be 
incorporated into proposed Sec.  303.510.
    Proposed Sec.  303.223, regarding control of funds and property, is 
generally the same as and would replace current Sec.  303.122 and 
incorporate the statutory provision in section 637(b)(3) of the Act. 
Proposed Sec.  303.224, regarding reports and records, would 
substantively include the language in current Sec.  303.121.
    Proposed Sec.  303.225, regarding the prohibition against 
commingling and supplanting, would combine current Sec. Sec.  303.123 
and 303.124 and the requirements in section 637(b)(5) of the Act. 
Proposed Sec.  303.225(a) would replace current Sec.  303.123 to 
require that a State ensure that funds under Part C of the Act are not 
commingled with State funds, and would add the definition of commingle 
from the note following current Sec.  303.123. The remainder of the 
current note, regarding a clear audit trail for each source, would be 
removed because it is redundant of requirements under the Single Audit 
Act (31 U.S.C. 7501 et seq.), which applies to Part C of the Act.
    Proposed Sec.  303.225(b)(1) would substantively include the 
language in current Sec.  303.124(a) and (b). Proposed Sec.  
303.225(b)(1)(i) would require that Federal funds be used to 
supplement, and, in no case, supplant State and local funds. Proposed 
Sec.  303.225(b)(1)(ii) would require that the total amount of State 
and local funds budgeted for expenditures in the current fiscal year 
for early intervention services for infants and toddlers with 
disabilities and their families must be at least equal to the total 
amount of State and local funds actually expended in the most recent 
preceding fiscal year for those services.
    Proposed Sec.  303.225(b)(2)(i) through (iv) would incorporate the 
language in 34 CFR 300.204(a) through (d) of the Part B regulations (71 
FR 46780), regarding exceptions to maintenance of effort; and would 
allow a Part C lead agency's maintenance of effort to be temporarily 
reduced in an individual year due to: a decrease in the number of 
infants and toddlers who are eligible to receive early intervention 
services; the termination of costly expenditures for long-term 
purchases, such as the acquisition of equipment and cost of 
construction of facilities; the departure of personnel either 
voluntarily or for just cause; and the termination of the obligation to 
make early intervention services available to an exceptionally costly 
IFSP program for a particular infant or toddler with a disability. 
Proposed Sec.  303.225(c) would incorporate the indirect cost 
requirements under Part C of the Act and under 34 CFR part 76.
    Proposed Sec.  303.226, which requires certain fiscal control and 
fund accounting procedures, would replace and substantively include the 
language in current Sec.  303.125. Proposed Sec.  303.227, which 
requires policies and practices to ensure that traditionally 
underserved groups are meaningfully involved in the planning and 
implementation of the requirements under Part C of the Act, would 
include the language in current Sec.  303.128, except that children 
with disabilities who are wards of the State would be added to the list 
of traditionally underserved groups, consistent with section 637(b)(7) 
of the Act.
Subsequent Applications and Modifications, Eligibility Determinations, 
and Standard of Disapproval
    Proposed Sec.  303.228 would incorporate the language in section 
637(d), (e), and (f) of the Act and is substantively the same as 
current Sec.  303.100(b), (c), and (d). Proposed Sec.  303.229 would 
add a provision that the Secretary notify the State if the Secretary 
determines a State is eligible to receive a grant under section 637 of 
the Act. Proposed Sec.  303.230 regarding the standard for disapproval 
of an application, would replace current Sec.  303.101, and would 
provide, consistent with section 637(c) of the Act, that the Secretary 
does not disapprove an application under this part unless the Secretary 
determines, through the notice and opportunity for hearing procedures 
in proposed

[[Page 26470]]

Sec. Sec.  303.231 through 303.236, that an application fails to comply 
with the requirements of this part.
Department Procedures
    Proposed Sec. Sec.  303.231 through 303.236 would set forth the 
specific notice and hearing procedures that would apply before the 
Secretary determines a State is not eligible to receive a grant under 
this part. These proposed regulations would incorporate the language in 
34 CFR 300.179 through 300.184 of the Part B regulations (71 FR 46776-
46778). We propose to adopt these regulations in order to encourage 
greater consistency between Part B and Part C program operations.

Subpart D--Child Find, Evaluations and Assessments, and Individualized 
Family Service Plans

    Proposed subpart D would incorporate the requirements from section 
636 of the Act regarding evaluations and assessments and IFSPs. 
Proposed subpart D of these proposed regulations would also incorporate 
the comprehensive child find system requirements because they overlap 
with evaluation requirements and because the new statutory child find 
requirements are contained in sections 612, 631, 632, 634, 635, 637 and 
641 of the Act, which do not readily relate to a corresponding subpart 
in these proposed regulations.
    Public awareness, child find, referral and screening procedures 
would be in proposed Sec. Sec.  303.300 through 303.303. Evaluation and 
assessment requirements would be combined in proposed Sec.  303.320 to 
incorporate the relevant provisions in section 636(a)(1) and (2) of the 
Act.
    IFSP provisions would be primarily unchanged in proposed Sec. Sec.  
303.340 through 303.345. Section 636(e) of the Act, regarding parental 
consent for IFSPs, would not be addressed in subpart D of these 
proposed regulations. It would instead be included with other parental 
consent provisions in proposed Sec.  303.420, to align with section 639 
of the Act regarding procedural safeguards.
Identification--Public Awareness, Child Find, and Referral
    Proposed Sec.  303.300(a) and (b), regarding a public awareness 
program, would incorporate language from current Sec.  303.320 that 
requires a public awareness program that provides for information to be 
prepared and disseminated to primary referral sources to inform parents 
of infants and toddlers about the child find system, central directory, 
and the availability of preschool services under section 619 of the 
Act. Proposed Sec.  303.300(a) would also cross-reference proposed 
Sec.  303.116, which would require a statewide system to have a public 
awareness program consistent with the provisions in proposed Sec.  
303.300. Consistent with section 635(a)(6) of the Act, proposed Sec.  
303.300(a)(1)(ii) would add a specific reference to parents of 
premature infants, or infants with other physical risk factors 
associated with learning or developmental complications.
    Proposed Sec.  303.300(a)(2) would add a requirement that the 
statewide system have procedures for assisting primary referral sources 
to disseminate information to parents of infants and toddlers with 
disabilities, consistent with section 635(a)(6) of the Act. This 
proposed provision would replace current Sec.  303.321(d)(2)(iii), 
which was removed, consistent with section 635(a)(6) of the Act. 
Proposed Sec.  303.300(a)(2) would cross-reference proposed Sec.  
303.302(c) which defines the term primary referral sources for the 
purposes of subpart C. Notes 1 and 2 following current Sec.  303.320, 
which include the components for an effective public awareness program, 
would be removed, as they do not reflect regulatory requirements and 
are therefore not necessary.
    Proposed Sec.  303.301, regarding a comprehensive child find 
system, would incorporate the requirements from current Sec.  303.321 
and would also emphasize the applicability of the child find system for 
the specific subpopulations referred to in many sections of the Act. 
Proposed Sec.  303.301(a)(1) and (2) would incorporate language from 
section 635(a)(5) of the Act, which requires a system for making 
referrals to service providers that includes timelines and provides for 
participation by primary referral sources. Proposed Sec.  303.301(a)(3) 
would incorporate statutory language from section 635(a)(5) of the Act 
that requires rigorous standards for appropriately identifying infants 
and toddlers with disabilities for early intervention services under 
Part C of the Act that would reduce the need for future services. 
Proposed Sec.  303.301(a)(4) would require the comprehensive child find 
system to meet the requirements in paragraphs (b) and (c) of this 
section and proposed Sec.  303.302, regarding referral procedures, and 
proposed Sec.  303.303, regarding screening procedures.
    Proposed Sec.  303.301(b) would address the scope of child find by 
identifying specific subpopulations of children that were added in the 
2004 amendments to Part C of the Act. Current Sec.  303.321(a)(2) would 
be removed as redundant with proposed Sec.  303.301(b) and (c), 
regarding the lead agency's responsibilities for administering the 
child find system under Part C of the Act, and proposed Sec.  
303.604(a)(3), regarding the Council's advisory role.
    Proposed Sec.  303.301(b) would incorporate current Sec.  
303.321(a)(2), which identifies the lead agency as the agency 
responsible for implementing a comprehensive child find system. 
Proposed Sec.  303.301(b)(1)(i) and (ii) would add references to 
children who are residing on a reservation located in a State, 
homeless, in foster care, and wards of the State to incorporate 
sections 612(a)(3)(A), 634(1) and 635(a)(2) of the Act and to align 
with the child find provisions in 34 CFR 300.111 of the Part B 
regulations (71 FR 46764). Proposed Sec.  303.301(b)(1) would cross-
reference the provisions in proposed Sec.  303.731(e)(1)) to ensure 
coordination by lead agencies with tribes, tribal organization, and 
consortia located in the State to ensure the timely identification of 
Indian infants and toddlers with disabilities.
    Proposed Sec.  303.301(b)(2) would replace current Sec.  
303.321(b)(2) and would clarify that child find includes methods for 
determining which children are in need of early intervention services 
and which children are not in need of those services.
    Proposed Sec.  303.301(c) would incorporate the requirements of 
current Sec.  303.321(c) and would add language requiring child find 
coordination with the following programs and agencies, to align with 
sections 634(1), 635(c)(2)(G), and 637(a)(6) and (10) of the Act: early 
education programs in the State, including Head Start and Early Head 
Start programs under section 645A of the Head Start Act; child 
protection programs including the foster care program and the State 
agency responsible for administering the Child Abuse Prevention and 
Treatment Act (CAPTA); child care programs in the State; and the 
programs that provide services under the Family Violence Prevention and 
Services Act for States electing to make available early intervention 
services to children with disabilities, in accordance with section 
635(c) of the Act and proposed Sec.  303.211.
    Proposed Sec.  303.302, regarding referral procedures, would 
require that the referral of a child under proposed Sec.  
303.302(a)(2)(i) be as soon as possible after the child has been 
identified. This is a change from the requirement in current Sec.  
303.321(d)(2)(ii), which requires the referral to occur within two

[[Page 26471]]

working days. The 2004 Amendments require lead agencies to conduct 
child find for additional subpopulations, which has substantially 
increased the number of referrals, making the two-day period 
impractical. A change in referral timeline is needed because we have 
found that the two-day referral is often not practical when some 
primary referral sources of these additional subpopulations are working 
with the lead agency and reviewing all information available about the 
child in order to determine whether the child may be suspected of 
having a disability and may need referral for evaluation under Part C 
of the Act. In addition, the Department has limited ability to enforce 
such a timeline given that primary referral sources include private 
physicians and other individuals and entities that are not EIS 
providers. Recognizing the importance of referring and identifying 
children potentially eligible for early intervention services as soon 
as possible, we are seeking comment on the proposed change in proposed 
Sec.  303.302(a)(2)(i), specifically, regarding whether a different 
timeframe or approach is more appropriate.
    Proposed Sec.  303.302(b), regarding referral of specific at-risk 
children, would incorporate language from section 637(a)(6) of the Act, 
which requires States to have policies and procedures for the referral 
of early intervention services under Part C of the Act for an infant or 
toddler under the age of three who is involved in a substantiated case 
of child abuse or neglect; or is identified as affected by illegal 
substance abuse, or withdrawal symptoms resulting from prenatal drug 
exposure.
    Proposed Sec.  303.302(b)(1) would require the referral of a child 
under the age of three who is involved in a substantiated case of child 
abuse or neglect. This provision is consistent with CAPTA, which was 
amended in June 2003 to require States receiving CAPTA funds to have 
policies regarding the referral to the Part C program of children under 
the age of three who were involved in a substantiated case of abuse or 
neglect. In coordinating with the U.S. Department of Health and Human 
Services, which administers CAPTA, the Department has confirmed that 
neither Part C of the Act nor CAPTA requires the referral of a child 
other than the child who is the subject of a proceeding resulting in 
substantiation. Therefore, proposed Sec.  303.302(b)(1) would not 
require a sibling to be referred or screened unless that sibling is a 
child under the age of three who has been the subject of a 
substantiation proceeding.
    Proposed Sec.  303.302(c) would incorporate the definition of 
``primary referral sources'' in current Sec.  303.321(d)(3), but would 
add to the definition: schools, clinics, public agencies and staff in 
the child welfare system including child protective service and foster 
care, homeless family shelters, and domestic violence shelters and 
agencies for States electing to make services under Part C of the Act 
available to children after the age of three in accordance with section 
635(c)(2)(G) of the Act and proposed Sec.  303.211. This would 
implement the intent of Congress, as expressed in note 290 of the Conf. 
Rpt., to ensure that the comprehensive child find system ``includes a 
broad range of referral sources such as homeless family shelters, 
clinics and other health service related offices, public schools and 
officials and staff in the child welfare system.'' The timelines for 
public agencies to act on referrals in current Sec.  303.321(e) would 
be replaced by those in proposed Sec.  303.320(e). The Note following 
current Sec.  303.321 would be removed as it does not reflect a 
regulatory requirement and is therefore not necessary.
    Proposed Sec.  303.303 would clarify the responsibilities of the 
lead agency regarding when screening may be used once a child is 
referred for early intervention services under Part C of the Act. These 
screening provisions would be added because we have determined them to 
be necessary. Although section 639(a)(4) of the Act has always 
referenced ``screening,'' the new child find provisions in the Act 
require lead agencies and primary referral sources to determine how 
best to efficiently identify, from the increased number of potential 
referrals, those children experiencing developmental delays or 
potentially eligible for early intervention services under Part C of 
the Act. Many States have already adopted screening procedures to 
accomplish this.
    Proposed Sec.  303.303(a)(1) would expressly permit States to have 
procedures for the screening of a child, when appropriate, to determine 
if the child is suspected of having a disability, and would clarify 
that if the State lead agency elects to adopt screening procedures to 
determine if a child is suspected of having a disability, those 
screening procedures must meet the requirements of proposed Sec.  
303.303. States would not be required to adopt screening procedures, 
but if States adopt such procedures, those procedures would have to 
meet the requirements in proposed Sec.  303.303.
    Proposed Sec.  303.303(a)(2) would clarify that, if the screening 
indicates that the child is suspected of having a disability, the lead 
agency must conduct an evaluation under proposed Sec.  303.320 to 
determine the eligibility of the child. This provision would be added 
because, if the lead agency were to conduct a screening that indicated 
the child is suspected of having a disability, such screening results 
would provide the lead agency with information that the infant or 
toddler may be experiencing developmental delays. If the lead agency 
believes, based on the screening and other available information, that 
a child is not suspected of having a disability, then proposed Sec.  
303.303(a)(3), consistent with current Sec.  303.403, would require the 
lead agency to provide the parent with notice under proposed Sec.  
303.421 that it is declining to conduct an evaluation. The notice 
requirement in proposed Sec.  303.303(a)(3) would be added because it 
is the Department's experience that many States were not aware of the 
need to provide notice under these circumstances.
    Proposed Sec.  303.303(a)(4) would require the lead agency to 
conduct an evaluation if a parent requests an evaluation after the lead 
agency determines a child is not suspected of having a disability after 
completing a screening. These proposed regulations provide this 
clarification because most States that have adopted screening 
procedures after the June 2003 CAPTA amendments and the IDEA 2004 
amendments have found that permitting the parent to request an 
evaluation is necessary to ensure appropriate identification of 
eligible children. In addition, the Department's experience indicates 
that parents often can identify or suspect developmental delays in 
their children that may not be identified through a screening. Further, 
research in the early childhood community demonstrates that parents are 
often in the best position to observe and know their infant's or 
toddler's developmental status.
    Proposed Sec.  303.303(b)(1) would define screening procedures as 
activities that are carried out by a public agency, EIS provider, or 
designated primary referral source (except for parents) to identify 
infants and toddlers suspected of having a disability and in need of 
early intervention services at the earliest possible age. Proposed 
Sec.  303.303(b)(2) would clarify that the screening procedures include 
the administration of appropriate instruments by qualified personnel 
that can assist in making the identification described in proposed 
Sec.  303.303(a)(1).

[[Page 26472]]

    Proposed Sec.  303.303(c) would clarify that for every child who is 
referred to the Part C program or receives a screening, the lead agency 
is not required to provide an evaluation and assessment of a child, 
unless the child is suspected of having a disability or the parent 
requests an evaluation under proposed Sec.  303.303(a)(4). This 
clarification is consistent with note 303 of the Conf. Rpt., which 
provides that every child who is referred for early intervention 
services under Part C of the Act, or who is screened is not required to 
receive an evaluation unless the child is suspected of having a 
disability and is not required to receive early intervention services 
under Part C of the Act unless that child is eligible.
    The Department notes that screening has long been part of States' 
child find and public awareness systems under Part C of the Act. The 
proposed regulations on screening would not apply to screenings 
conducted: (1) prior to a child's referral for services under Part C of 
the Act; (2) when a child's eligibility has already been determined; or 
(3) to siblings of children in substantiated cases of abuse or neglect.
    As part of the child find and public awareness systems, primary 
referral sources and other community agencies often conduct routine 
agency screenings of infants and toddlers and other children. The 
proposed Part C regulations would not apply to screenings that are 
routinely conducted by primary referral sources and are not used by the 
lead agency to determine whether a child is suspected of having a 
disability.
    In addition, children already determined to be eligible (such as a 
child with a diagnosed condition who has medical records that the lead 
agency can use to establish eligibility) would not need to be screened, 
because the purpose of screening is to determine whether a child is 
suspected of having a disability.
    Finally, neither Part C of the Act nor CAPTA requires the referral 
or screening of siblings of a child, other than the child who is the 
subject of the proceeding resulting in substantiated abuse or neglect 
or who is identified as affected by illegal substance abuse or 
withdrawal symptoms resulting from prenatal drug exposure, unless that 
sibling is under the age of three and has also been the subject of a 
substantiation proceeding. However, under Part C of the Act, States may 
establish broader policies to permit or require the referral or 
screening of these siblings.
Evaluation and Assessment of the Child and Family and Assessment of 
Service Needs
    Proposed Sec.  303.320 would combine the requirements from current 
Sec. Sec.  303.300(b), 303.322, and 303.323 and section 636(a)(1) and 
(2) of the Act. Proposed Sec.  303.320(a)(1) would require the lead 
agency to ensure that a timely, comprehensive, and multidisciplinary 
evaluation and an assessment are performed for each child under three 
who is referred for an evaluation and is suspected of having a 
disability. Proposed Sec.  303.320(a)(2)(i) would clarify that an 
evaluation is the method used to review the assessments of the child 
and the family to determine a child's initial and continuing 
eligibility consistent with the definition of infant or toddler with a 
disability in proposed Sec.  303.21. Proposed Sec.  303.320(a)(2)(ii) 
would clarify that in conducting an evaluation, no single procedure may 
be used as the sole criterion for determining the child's eligibility 
for Part C services. Proposed Sec.  303.320(a)(2)(iii) would clarify 
that the use of a child's medical and other records may be used to 
establish eligibility (without conducting an assessment of the child 
and the family) if those records contain information, required under 
proposed Sec.  303.320, regarding the child's level of functioning in 
the developmental areas identified in proposed Sec.  303.21(a)(1). The 
nondiscriminatory procedures in current Sec.  303.323 would be 
incorporated into proposed Sec.  303.320(a)(3).
    Proposed Sec.  303.320(b)(1) would incorporate the procedures for 
the assessment of a child found in current Sec. Sec.  303.322(b)(2), 
303.322(c)(2), and 303.323(c). Proposed Sec.  303.320(b)(1) would 
clarify that an assessment of a child means reviewing the child's 
pertinent records that relate to the child's current health status and 
medical history and conducting personal observation and assessment of 
the child to identify the child's unique strengths and needs and 
present level of developmental functioning. This clarification is 
necessary because States have not consistently required that the 
assessment of a child's need for early intervention services be based 
on personal observation and assessment of the child by qualified 
personnel. Proposed Sec.  303.320(b)(1) and (2) would clarify that the 
assessment of the child's unique strengths and needs includes an 
identification of the child's level of functioning in each of the 
following developmental areas: Cognitive development; physical 
development, including vision and hearing; communication development; 
social or emotional development; and adaptive development based on 
objective criteria, which include informed clinical opinion.
    Proposed Sec.  303.320(b)(2) would expressly require that the lead 
agency allow qualified personnel to use their informed clinical opinion 
to assess a child's present level of functioning in each of the 
developmental areas identified in proposed Sec.  303.21(a)(1) and to 
establish a child's eligibility, even when other instruments fail to 
establish eligibility. This is consistent with the Department's 
monitoring experience, which has indicated confusion in States that do 
not expressly allow the use of informed clinical opinion as a separate 
basis to establish eligibility. This is necessary because instruments 
may not adequately capture the extent of the developmental delay. Thus, 
informed clinical opinion may be used to establish a child's 
eligibility under this part even when other instruments do not 
establish eligibility. However, under proposed Sec.  303.320(b)(2), 
informed clinical opinion cannot be used to negate eligibility 
established through the use of other appropriate assessment 
instruments.
    As provided in the note following current Sec.  303.300, the use of 
informed clinical opinion in establishing eligibility for early 
intervention services under Part C of the Act is especially important 
when standardized instruments are unavailable, unreliable or 
inappropriate for use in measuring developmental delay (as they often 
are for children under the age of three) or for evaluating a diagnosed 
condition such as autism spectrum disorder or pervasive developmental 
delay. Although the language of the note would be removed by these 
proposed regulations, the use of informed clinical opinion in 
establishing eligibility continues to be necessary and would therefore 
be included in proposed Sec.  303.320(b)(2) as previously discussed.
    With respect to the procedures for the assessment of a family, 
proposed Sec.  303.320(c) would combine the requirements of section 
636(a)(2) of the Act and current Sec. Sec.  303.322(b)(2)(ii) and 
303.322(d), and would require that family information be assessed not 
just through the use of an assessment tool, but through a voluntary 
personal interview with the family. In addition to the parent, the 
family assessment can include other family members for the purposes of 
identifying the child's needs. This proposed language would permit 
States to avoid unnecessary, time-consuming, and costly evaluations,

[[Page 26473]]

if existing records contain reliable information, and establish 
eligibility for services under Part C of the Act.
    Proposed Sec.  303.320(d) would clarify, consistent with section 
636(a)(1) of the Act and current Sec.  303.322(c)(3)(iii), that the 
assessment of service needs must identify the early intervention 
services needed to meet the unique strengths and needs of each infant 
or toddler with a disability. The service needs of the family under 
current Sec.  303.322(d) and sections 635(a)(3) and 636(a)(2) and 
(d)(2) of the Act have been longstanding requirements, which have 
clarified that family assessments must be family directed and designed 
to determine the resources, priorities and concerns of the family and 
the identification of supports and services to meet the developmental 
needs of the child. Under proposed Sec.  303.320(d), the assessment of 
the service needs of each infant or toddler with a disability and that 
child's family must include a review of the evaluation (including the 
assessment of the child and family) and available pertinent records and 
conducting personal observation and assessment of the infant or toddler 
with a disability in order to identify the early intervention services 
appropriate to meet the child's unique needs in each of the five 
developmental areas identified in proposed Sec.  303.320(b)(1).
    Current Sec. Sec.  303.321(a) and 303.321(e)(1) and (2), require 
that a child's evaluation, assessment, and initial IFSP meeting occur 
within 45 days from the date the public agency receives the referral. 
The Department believes this imposes an unnecessary burden on Part C 
agencies. Because the public agency cannot initiate these actions 
without parental consent, a refusal or late consent may drastically 
reduce the time available for the agency to perform evaluations and 
prepare for the IFSP meeting. Proposed Sec.  303.320(e)(1) would retain 
the 45-day timeline requirement, but the timeline would start with the 
date the public agency obtained parental consent for the evaluation, 
not the date the public agency receives the referral.
    This change in how the 45-day timeline is calculated may result in 
some delays in the evaluation process, since the public agency may be 
less motivated to obtain timely consent. However, there are situations 
in which the lead agency is unable to obtain the requisite consent in a 
timely manner because the parents do not respond. In those cases, the 
delays in obtaining parental consent affect the State's ability to 
conduct evaluations, assessments, and the initial IFSP meetings within 
the 45-day period; potentially increase costs due to the need to pay 
overtime to staff; and make the State vulnerable to due process 
complaints based on its not complying with the 45-day timeline 
requirement.
    The Department believes the change in starting date for the 45 days 
to when parental consent is obtained would provide a more realistic 
start time for conducting evaluations, assessments and the initial IFSP 
meeting and improve the ability of States to manage the development of 
IFSPs. This proposed change also would eliminate the possibility that 
States will be penalized for a lack of timeliness in due process 
complaints in which parents were responsible for delays because they 
did not provide timely consent or did not respond. The timeline change 
reflected in proposed Sec.  303.320(e) is consistent with section 
636(c) of the Act, which requires that the IFSP be developed within a 
reasonable time after the assessment is completed.
    The Department is seeking comment on whether the proposed change to 
the starting date for evaluation, assessment, and initial IFSP in 
proposed Sec.  303.320(e) is reasonable and necessary. Another option 
to consider is for the starting date to remain the same with an 
increase in the length of time to complete evaluations, assessments, 
and holding the initial IFSP meeting.
Individualized Family Service Plans (IFSPs)
    The definition of IFSP in current Sec.  303.340 would be 
incorporated into the definition of IFSP in proposed Sec.  303.20. 
Proposed Sec.  303.340 would cross-reference the definition in proposed 
Sec.  303.20 and would require that the IFSP for an infant or toddler 
with a disability meet the requirements in proposed Sec. Sec.  303.342 
through 303.345.
    Proposed Sec.  303.342(a) through (d), regarding procedures for 
IFSP development, review, and evaluation would be substantively 
unchanged from current Sec.  303.342(a) through (d), with the cross-
references updated. Proposed Sec.  303.342(e) would be substantively 
unchanged from current Sec.  303.342(e), except that the substantive 
requirements regarding a parent's ability to consent or decline consent 
at any time would be addressed in proposed Sec.  303.420. The note 
following current Sec.  303.342 would be removed as it does not reflect 
a regulatory requirement and is therefore not necessary.
    Proposed Sec.  303.343, regarding IFSP team meetings and periodic 
reviews, would be substantively unchanged from current Sec.  303.343 
except that the title of the section would be changed. IFSP 
participants would be referred to as the ``IFSP team'' to align with 
the reference to a ``multidisciplinary team'' in section 636(a)(3) of 
the Act. Proposed Sec.  303.343(a)(1)(iv) would remove, as unnecessary, 
language defining which service coordinators must participate in the 
initial and annual IFSP meetings. The change would be made to alleviate 
burden on the State to have additional people at the IFSP meeting. In 
most States, the service coordinator at the time of the IFSP meeting is 
the service coordinator who is most knowledgeable about the child and 
family and this service coordinator generally attends the IFSP meeting.
    Proposed Sec.  303.344(a), regarding content of an IFSP, would be 
substantively unchanged from current Sec.  303.344(a), except that 
proposed Sec.  303.344(a) would clarify that the IFSP content regarding 
present levels of functioning in each developmental area must be based 
on the child's evaluation and assessment under proposed Sec.  303.320, 
to align with section 636(d)(1) of the Act, which requires that the 
child's present levels of development be based on objective criteria. 
Accordingly, current Sec.  303.344(a)(2), which refers to 
professionally acceptable objective criteria, would be removed. 
Proposed Sec.  303.320 would require that objective criteria be used to 
determine the infant or toddler's present levels of functioning in the 
developmental areas identified.
    Proposed Sec.  303.344(b) would be substantively unchanged from 
current Sec.  303.344(b). Proposed Sec.  303.344(c) would incorporate 
language from section 636(d)(3) of the Act, which requires the IFSP to 
contain a statement of the ``measurable results or outcomes expected to 
be achieved for the infant or toddler and the family, including pre-
literacy and language skills, as developmentally appropriate for the 
child.'' Because the term ``measurable'' modifies both ``results'' and 
``outcomes,'' proposed Sec.  303.344(c) would clarify that the IFSP 
must contain measurable results or measurable outcomes. In addition to 
being required by the statute, including pre-literacy and language 
skills as examples of measurable results or measurable outcomes is 
consistent with the current practices of most States for including on 
the IFSP, communication or social and emotional developmental goals. 
These goals would meet the requisite pre-literacy and language skills 
that are developmentally appropriate for infants and toddlers with 
disabilities.
    Proposed Sec.  303.344(d)(1) would incorporate language from 
section 636(d)(4) of the Act, which requires that

[[Page 26474]]

specific early intervention services contained in the IFSP be based on 
peer-reviewed research, to the extent practicable. This requirement is 
not intended to impose any additional recordkeeping or IFSP content 
burden but rather to ensure that each early intervention service is 
based on the child's developmental needs and reflects current standards 
of research-based practices.
    Proposed Sec.  303.344(d)(1)(i) would be consistent with section 
636(d)(4) and (6) of the Act, and would require the IFSP to contain a 
statement of the frequency, intensity, length, duration, and method of 
delivery of services.
    Proposed Sec.  303.344(d)(1)(ii)(A), concerning natural 
environments, would be amended to align with sections 635(a)(16)(A) and 
636(d)(5) of the Act. Proposed Sec.  303.344(d)(1)(ii)(B), regarding 
the determination of the appropriate setting for providing early 
intervention services, would align with section 635(a)(16)(B) of the 
Act.
    Proposed Sec.  303.344(d)(1)(ii)(B) would specify that if a 
particular early intervention service cannot be provided satisfactorily 
in a natural environment, a justification that describes the setting in 
which the service will be provided and an explanation that supports the 
decision as to how the setting will assist the infant or toddler 
achieve the IFSP outcomes is required on the IFSP. This incorporates a 
longstanding Department policy that a justification for not providing 
early intervention services in a natural environment should be based on 
the child's IFSP outcomes. Note 295a of the Conf. Rpt. states ``that 
there may be instances when a child's Individualized Family Service 
Plan cannot be implemented satisfactorily in the natural environment. 
The Conferees intend that in these instances, the child's parents and 
other members of the individualized family service plan team will 
together make this determination and then identify the most appropriate 
setting in which early intervention services can be provided.''
    In addition, proposed Sec.  303.344(d)(2) would define the terms 
frequency and intensity, method, length, and duration for purposes of 
proposed Sec.  303.344(d)(1)(i). Proposed Sec.  303.303(d)(2)(i) 
regarding the definition of frequency and intensity would be 
substantively the same as current Sec.  303.344(d)(2)(i) except that 
proposed Sec.  303.344(d)(2)(iii) would include a definition of length, 
consistent with section 636(d)(6) of the Act. Proposed Sec.  
303.303(d)(2)(ii), regarding the definition of method, would 
incorporate current Sec.  303.344(d)(2)(ii). Proposed Sec.  
303.344(d)(2)(iv), regarding the definition of duration, would clarify 
that duration means projecting when a given service will no longer be 
provided (such as when the child is expected to achieve the results or 
outcomes in his or her IFSP).
    Proposed Sec.  303.344(d)(3), regarding the definition of location, 
would incorporate the language in current Sec.  303.344(d)(3).
    Proposed Sec.  303.344(d)(4) would add a new requirement that IFSPs 
include, for children who are at least three years of age, an 
educational component that promotes school readiness and incorporates 
pre-literacy, language, and numeracy skills to align with sections 
632(5)(B)(ii) and 635(c) of the Act, and 34 CFR 300.323(b) of the Part 
B regulations (71 FR 46789), regarding the allowable use of IFSPs under 
section 619 of the Act.
    Proposed Sec.  303.344(e) would remove the requirement in current 
Sec.  303.344(e)(1)(ii) that the IFSP identify funding sources for the 
medical and other services not required by Part C of the Act. Current 
Sec.  303.344(e)(1)(ii) would be removed, as it is overly burdensome to 
require IFSP teams, including service coordinators, to identify funding 
for services not required under Part C of the Act, because service 
coordinators may have limited knowledge about funding for services that 
are provided by other programs. In addition, proposed Sec.  303.344(e) 
would incorporate current Sec.  303.344(e)(i) regarding the requirement 
that other services needed or received by the child or family also be 
identified on the IFSP. Identifying these other services ensures that 
the IFSP identifies all of the services available to the child and 
family, and would avoid duplicative services and enhance coordination 
among the various agencies and organizations that are providing or may 
provide such services, and would ensure that Part C funds are not being 
used to pay for duplicate services. As indicated in Note 3 following 
current Sec.  303.344, while listing the non-required services in the 
IFSP does not mean that those services must be provided, their 
identification is helpful to the child's family, the service 
coordinator, and EIS providers because the IFSP provides a 
comprehensive picture of the child's total service needs (including 
medical and health services), as well as early intervention services 
(including transition services).
    Current Sec.  303.344(e)(2) would be removed as unnecessary. The 
substance of current Sec.  303.344(e)(2) would be included in proposed 
Sec.  303.16(c)(3), in the definition of health services. Proposed 
Sec.  303.344(f) would be substantively unchanged from current Sec.  
303.344(f) and would require the IFSP team to include on the IFSP, the 
projected date for initiation of each service, which date must be as 
soon as possible after the IFSP meeting, and the anticipated duration 
of each service.
    Current Sec.  303.344(g)(1) and (3) would be retained in proposed 
Sec.  303.344(g). Proposed Sec.  303.344(g)(1) is intended to provide 
guidance to the State in the identification of the service coordinator 
on the IFSP. Current Sec.  303.344(g)(2) would be removed, to align 
proposed Sec.  303.344(g) with section 636(d)(7) of the Act, and to 
reduce the burden on States. Although the service coordinator must 
serve as the single point of contact under current Sec.  303.23 and 
proposed Sec.  303.33(a)(3), there is not a requirement that the 
service coordinator be the same individual throughout the child's 
participation in the Part C system. Current Sec.  303.344(g)(3) would 
be renumbered as proposed Sec.  303.344(g)(2).
    Proposed Sec.  303.344(h)(1), regarding the IFSP identifying the 
programs to which children may transition from services under Part C of 
the Act, would be substantively unchanged, except that subsections (ii) 
and (iii) would be added to expressly identify the following additional 
programs: (1) elementary school or preschool services (for children 
participating under proposed Sec.  303.211); and (2) early education, 
Head Start and Early Head Start or child care programs to incorporate 
the coordination provisions in section 637(a)(10) of the Act.
    Proposed Sec.  303.344(h)(2)(iv) would incorporate the provisions 
in section 636(a)(3) of the Act to add a reference to transition 
services and would remain substantively unchanged from current Sec.  
303.344(h). The remainder of current Sec.  303.344(h) would be amended 
and renumbered consistent with section 636 of the Act. The notes 
following current Sec.  303.344 would be removed, as they do not 
reflect regulatory requirements, but are explanatory or provide 
examples, and are therefore not necessary, except for Note 3, which 
would be incorporated into proposed Sec.  303.344(e).
    Proposed Sec.  303.345 would be substantively unchanged from 
current Sec.  303.345, with cross-references updated. The first part of 
the note after current Sec.  303.345 regarding the purpose of interim 
IFSPs would be removed as unnecessary because it provides only one 
example of when interim IFSPs may be used, namely when a child's 
eligibility under Part C of the Act is clear (i.e. due to a diagnosed 
condition such as cerebral palsy). However, interim IFSPs are available 
whenever an immediate need for an early

[[Page 26475]]

intervention service is identified for an infant or toddler with a 
disability and the other conditions of proposed Sec.  303.345 are met, 
regardless of how a child is eligible under Part C of the Act. In 
addition, the second part of this note, regarding the applicability of 
the 45-day timeline, would be removed, because proposed Sec.  
303.345(c) would continue to apply the 45-day timeline for the timely 
completion of evaluations and assessments, even when an interim IFSP is 
used.
    Proposed Sec.  303.346 would retain current Sec.  303.346, 
regarding the responsibility and accountability of agencies and persons 
who have a direct role in the provision of early intervention services. 
Personnel training and standards in current Sec. Sec.  303.360 and 
303.361 would be moved to subpart B of the proposed regulations in 
Sec. Sec.  303.118 and 303.119 to align with section 635 of the Act. 
The note following current Sec.  303.361, regarding State flexibility 
to identify specific occupation categories, would be removed as 
unnecessary, because proposed Sec. Sec.  303.118 and 303.119 would 
adequately clarify that State personnel standards would continue to be 
determined by States.

Subpart E--Procedural Safeguards

    Proposed subpart E would incorporate the procedural safeguard 
provisions from sections 615 and 639 of the Act.
General
    Proposed Sec.  303.400(a) would substantially retain the language 
in current Sec.  303.400(a), but would identify the major components of 
procedural safeguard requirements in proposed subpart E, including: 
confidentiality; parental consent and notice; surrogate parents; 
mediation; dispute resolution options; and due process hearing 
procedures under sections 639 and 615 of the Act. Proposed Sec.  
303.400(b) would be substantially the same as current Sec.  303.400(b), 
and would indicate that the lead agency is responsible for ensuring the 
effective implementation of the safeguards by each EIS provider in the 
State that is involved in the provision of early intervention services.
    The confidentiality provisions in proposed Sec. Sec.  303.401 
through 303.417, would implement sections 617(c) and 639(a)(2) and (4) 
of the Act and would primarily incorporate the language of the 
confidentiality protections under 34 CFR 300.610 through 300.627 of the 
Part B regulations (71 FR 46802-46804), and the Family Educational 
Rights and Privacy Act (FERPA) in 20 U.S.C. 1232g and its implementing 
regulations in 34 CFR part 99.
    The parental consent, notice, and surrogate parent provisions in 
proposed Sec. Sec.  303.420 through 303.422, would implement section 
639(a)(3), (5), (6), and (7) of the Act, regarding parental consent, 
parental notice, and surrogate parent provisions and would replace 
current Sec. Sec.  303.403 through 303.406.
    The dispute resolution options in proposed Sec. Sec.  303.430 
through 303.439, would implement section 639(a)(1) and (8), and 639(b) 
of the Act. To make these regulations a freestanding document, the due 
process hearing procedures for resolving individual child complaints in 
proposed Sec. Sec.  303.440 through 303.449 would include language from 
section 615(b)(6) and (7), (c)(2), (e)(2)(F), (f), (h), (i), (l), and 
(o) of the Act.
Confidentiality
    Proposed Sec.  303.401 would combine current Sec. Sec.  303.402 and 
303.460 to clarify when the confidentiality provisions in Part C of the 
Act apply, to mandate very limited disclosure between specific agencies 
for purposes of child find activities, to make other changes to conform 
to the Act, and to allow a lead agency to establish procedures that 
would inform parents of a potential referral and provide an opportunity 
to object prior to the disclosure. The note following current Sec.  
303.460 regarding the confidentiality requirements and the provisions 
of FERPA, would be removed because the substance of the applicable 
language is included in proposed Sec. Sec.  303.401 and 303.402.
    Proposed Sec.  303.401(b) would remain substantively unchanged from 
current Sec.  303.402, except that, instead of referencing the 
confidentiality provisions from Part B of the Act, proposed Sec.  
303.401(b) references proposed Sec. Sec.  303.402 through 303.417, 
which would include the language of these requirements as modified to 
apply to lead agencies and EIS providers under Part C of the Act. 
Proposed Sec.  303.401(b)(1) would clarify that the Part C 
confidentiality provisions are consistent with, but broader than, the 
provisions under FERPA.
    Proposed Sec.  303.401(c) would clarify that the Part C 
confidentiality provisions apply, when the child is referred for early 
intervention services under Part C of the Act and continue to apply 
until the time when the lead agency, public agency or EIS provider is 
no longer required to maintain or maintains such information under 
applicable Federal and State laws. The proposed provisions would 
clarify that as long as the lead agency, public agency or EIS provider 
is required to maintain, or maintains such records under Part C of the 
Act, the confidentiality provisions would apply to ensure appropriate 
privacy of Part C early intervention records.
    Proposed Sec.  303.401(d) would be added to incorporate the child 
find requirements from sections 612(a), 635(a)(6), and 637(a)(9) of the 
Act and require the very limited disclosure of personally-identifiable 
information during child find activities. This provision incorporates 
existing Department policy.
    Proposed Sec.  303.401(e) would permit States to adopt a policy to 
require any public agency or EIS provider, prior to the limited 
disclosure, to inform the parent of the intended disclosure required 
under proposed Sec. Sec.  303.401(d) and 303.209(b)(2), and would allow 
the parent an opportunity to object to the disclosure in writing. 
Permitting States to adopt this policy would balance the privacy 
interests of parents of children receiving services under Part C of the 
Act, with the lead agency's and SEA's responsibilities to identify 
children potentially eligible for services under IDEA. Consistent with 
proposed Sec.  303.209, if the State adopted such an ``opt-out'' 
policy, that policy must be on file with the Secretary as part of the 
State's application under Part C of the Act.
Additional Confidentiality Requirements
    Proposed Sec. Sec.  303.402 through 303.417 would be added in order 
to create freestanding regulations that can be easily used by parents, 
lead and public agencies, and EIS providers and that would include the 
confidentiality requirements from 34 CFR 300.610 through 300.627 of the 
Part B regulations (71 FR 46802-46804) that apply to Part C of the Act 
under current Sec. Sec.  303.402 and 303.460. These confidentiality 
requirements would be amended, where appropriate, to apply to Part C 
lead agencies and EIS providers to ensure confidentiality of Part C 
records but would not be substantively changed from the corresponding 
provisions in the Part B regulations. For example, proposed Sec.  
303.405(a), regarding access rights, requires the agency to comply with 
a request no more than 20 days after a request has been made, whereas 
the corresponding requirement in 34 CFR 300.613(a) of the Part B 
regulations (71 FR 46803) requires a response no more than 45 days 
after the request. The variance in the timelines is to accommodate the 
30-day timeline for due process hearings under Part C of the Act, as 
opposed to the 45-day timeline in Part B of the Act.

[[Page 26476]]

    In addition, proposed Sec.  303.414(d) would codify an express 
exception to the general parental consent requirement for release of 
personally identifiable information in early intervention records to 
reflect the role of Protection and Advocacy (P&A) systems under the 
Developmental Disabilities Assistance and Bill of Rights Act of 2000 
(DD Act). Under the DD Act, which is administered by the Department of 
Health and Human Services, a P&A system may need access to early 
intervention records in specific circumstances.
    Proposed Sec.  303.414(d)(1) would cross-reference the requirement 
in section 143(a)(2)(I)(iii)(III) of the DD Act, that authorizes P&A 
systems under the DD Act to obtain access to contact information 
(including the name, address and telephone number) of the parent or 
legal guardian or representative of an infant or toddler with a 
disability in cases where they have probable cause to believe that such 
a child is an individual with a developmental disability who has been 
subject to abuse or neglect. 42 U.S.C. 15043(a)(2)(I)(iii). Proposed 
Sec.  303.414(d)(1) would enable the lead agency or participating 
agency to disclose to the P&A system this contact information that 
would otherwise be considered personally identifiable information under 
Part C of the Act when the P&A system expressly requests this 
information under section 143(a)(2)(I)(iii) of the DD Act.
    Proposed Sec.  303.414(d)(2) would expressly also permit the lead 
agency or participating agency to disclose personally identifiable 
information in early intervention records in order to provide the P&A 
system access to the early intervention record of an infant or toddler 
with a disability when the P&A system requests access under either 
section 143(a)(2)(I)(iii) or section 143(a)(2)(J) of the DD Act. Under 
section 143(a)(2)(I)(iii) of the DD Act, the P&A system is authorized 
to have access where the P&A system has probable cause to believe that 
an individual with a developmental disability has been subject to abuse 
or neglect, it has contacted the parents to offer assistance, and the 
parents have refused to act. Under Section 143(a)(2)(J)(ii) of the DD 
Act, the P&A system is authorized to have immediate access to the early 
intervention records of an infant or toddler with a disability who is 
an individual with a developmental disability without that child's 
parental consent in a case where a P&A system has probable cause to 
believe that the health and safety of that individual are in serious 
and immediate jeopardy.
Parental Consent and Notice
    Proposed Sec.  303.420(a) and (b), regarding parental consent and 
notice, would be substantively unchanged from current Sec.  303.404 and 
would add ``and ability to decline service'' in the heading to better 
align the regulation with section 639(a)(3) of the Act. Proposed Sec.  
303.420(a) would specifically indicate that the lead agency must ensure 
that parental consent is obtained before an evaluation and assessment 
of a child would be conducted under proposed Sec.  303.320, before the 
provision of early intervention services, prior to the use of the 
parent's public or private insurance under proposed Sec.  303.520, and 
prior to the exchange of personally identifiable information consistent 
with proposed Sec.  303.401.
    The term ``initial'' in current Sec.  303.404(a)(1) would not be 
included in proposed Sec.  303.420(a)(1) in order to clarify, 
consistent with Part B in section 614(c)(3) of the Act and the practice 
in the vast majority of Part C State early intervention programs, that 
parental consent is required not only for the initial evaluation but 
also for reevaluation of a child under Part C of the Act. Because the 
Part C parental consent provisions in section 639(a)(3) of the Act are 
broader (and more appropriate for the parents of infants and toddlers 
with disabilities) than the consent provisions under Part B in section 
614(c) of the Act, the exceptions to requiring the public agency to 
obtain parental consent in section 614(c)(3) of the Act and 34 CFR 
300.300(c) of the Part B regulations (71 FR 46784) do not apply to Part 
C of the Act.
    Proposed Sec.  303.420(b) would be unchanged from current Sec.  
303.404(b) regarding the lead agency's responsibilities if the parent 
does not provide consent.
    Proposed Sec.  303.420(c) would be added to include the language of 
Note 2 following current Sec.  303.404 to clarify that a lead agency 
may, but is not required to, use the due process hearing procedures to 
challenge the parent's refusal to consent to an evaluation and 
assessment of the child. The term ``initial'' in Note 2 would not be 
incorporated into proposed Sec.  303.420(c) because the lead agency 
may, but is not required to, use due process hearing procedures to 
override parental refusal to provide consent for any evaluation, not 
just the initial evaluation. The substance of Note 1, regarding 
parental consent, following current Sec.  303.404 would be included 
where applicable in proposed Sec.  303.420; and the substance of Note 
1, regarding personably identifiable information, would be included in 
proposed Sec.  303.401(c).
    Proposed Sec.  303.420(d) would incorporate the requirements in 
section 639(a)(3) of the Act and current Sec.  303.405, and clarify the 
parent's right to accept or decline any early intervention service at 
any time.
    Proposed Sec.  303.421, regarding prior written notice, would be 
substantively unchanged from current Sec.  303.403 and would 
incorporate section 639(a)(6) and (7) of the Act. Proposed Sec.  
303.421(c) would be substantively unchanged from current Sec.  
303.403(c) except that the provisions in current Sec.  303.403(c)(3) 
would be moved to the definition of native language in proposed Sec.  
303.25.
Surrogate Parents
    Proposed Sec.  303.422, regarding surrogate parents, would be 
substantively unchanged from current Sec.  303.406, except proposed 
Sec. Sec.  303.422(b)(2), 303.422(c)(2)(i) and 303.422(e), would 
contain new language. Additionally, we used the statutory word 
``locate'' in proposed Sec.  303.422(a)(2), rather than the term 
``discover the whereabouts'' used in current Sec.  303.406(a)(2). 
``Locate'' as used in proposed Sec.  303.422(a)(2), regarding a lead 
agency's efforts to locate the child's parent, means that a lead agency 
makes reasonable efforts to discover the whereabouts of a parent, as 
defined in proposed Sec.  303.27, before assigning a surrogate parent.
    Proposed Sec.  303.422(b)(2) would clarify that in implementing the 
provisions for determining when a surrogate parent is needed and 
assigning one for an infant or toddler who is a ward of the State or 
placed in foster care, the lead agency must consult with the public 
agency to which care of the infant or toddler has been assigned. This 
provision would be added due to the potential increase in the number of 
infant or toddler referrals under CAPTA and from child protective 
service agencies, recognizing that lead agencies may not have current 
updated data on families. However, this consulting requirement is not 
intended to be a burden, and consultation can occur by telephone, e-
mail, or other means established by the lead agency and consistent with 
the interagency confidentiality requirements.
    Proposed Sec.  303.422(c)(2)(i) would incorporate the language from 
section 639(a)(5) of the Act, and would prohibit the assignment of a 
surrogate parent who is an employee of the lead agency or any other 
public agency or EIS provider that provides early intervention or other 
services to the child or any family member of the child.

[[Page 26477]]

Current Sec.  303.406(d)(1) would be removed because it would be 
redundant with proposed Sec.  303.422(c)(2)(i). Proposed Sec.  
303.422(e) would be substantively unchanged from current Sec.  
303.406(e), and would clarify that the surrogate parent has the same 
rights as a parent for all purposes under this part.
Dispute Resolution Options
    Proposed Sec.  303.430(a) would require each State system to make 
available dispute resolution options under Part C of the Act that would 
include mediation, due process hearing procedures, and State complaint 
procedures in current Sec. Sec.  303.419, 303.420 through 303.425, and 
303.510 through 512, respectively.
    Proposed Sec.  303.430(b) would clarify that each lead agency must 
make mediation available as required in proposed Sec.  303.431, and 
would incorporate language from sections 615(e) and 639(a)(8) of the 
Act and current Sec.  303.419.
    Proposed Sec.  303.430(c) would be aligned with the Part B 
administrative complaint procedures in 34 CFR 300.151 through 300.153 
of the Part B regulations (71 FR 46770-46771) and would continue to 
require, as set forth in current Sec.  303.510, that each lead agency 
adopt written State complaint procedures that meet the requirements in 
proposed Sec. Sec.  303.432 through 303.434 to resolve any complaints 
filed by any party regarding any violation of this part.
    Proposed Sec.  303.430(d) would continue to allow lead agencies the 
option of using the Part C due process hearing procedures under 
proposed Sec. Sec.  303.435 through 303.439, or the Part B due process 
hearing procedures under proposed Sec. Sec.  303.440 through 303.449 
(with the option of adopting either a 30-day or 45-day timeline).
    Proposed Sec.  303.430(e)(1) and (2) would incorporate the pendency 
language in section 639(b) of the Act and current Sec.  303.425 
regarding the services that must be provided during the pendency of a 
due process complaint. Proposed Sec.  303.430(e)(1) would further 
clarify that the child must continue to receive those early 
intervention services that are identified on the IFSP to which the 
parent has provided consent and in the settings identified on the IFSP, 
unless the lead agency and parent otherwise agree.
    Proposed Sec.  303.430(e)(3)(i) would clarify that if a child turns 
three and the child's eligibility under Part B of the Act has not yet 
been determined in a State that has adopted the option to provide Part 
C services beyond age three, then the lead agency must continue to 
provide Part C services to that child under proposed Sec.  
303.211(b)(4). Proposed Sec.  303.430(e)(3)(ii) would clarify that once 
a child turns three and has been determined ineligible for services 
under Part B of the Act and proposed Sec.  303.211, Part C pendency 
does not apply and the lead agency is not required to provide Part C 
services to that child during the pendency of any due process hearing 
procedure challenging the determination of ineligibility.
Mediation
    Proposed Sec.  303.431, regarding mediation, would remain 
substantively unchanged from the current Sec.  303.419 but would 
include several mediation provisions based on revisions in section 
615(e) of the Act, which applies to Part C through section 639(a)(8) of 
the Act. Each lead agency must ensure that procedures are established 
and implemented to allow parties to disputes involving any matter under 
this part, including matters arising prior to the filing of a due 
process complaint, to resolve disputes through a mediation process, as 
indicated in proposed Sec.  303.431(a). Proposed Sec.  303.431(b) would 
include the requirements in current Sec.  303.419(b).
    Additionally, proposed Sec.  303.431(b)(5) and (b)(6) would 
incorporate the requirements in sections 615(e) and 639(a)(8) of the 
Act and require that if mediation results in resolution of a complaint, 
the parties must execute a legally binding agreement that describes the 
resolution of the matter and states that discussions that occurred 
during mediation shall be confidential and not used as evidence in any 
subsequent due process hearing or civil proceeding. The proposed 
regulation would require that the agreement be signed by the parent and 
a lead agency representative who has authority to bind the agency, and 
state that the agreement would be enforceable in any State court of 
competent jurisdiction or in a district court of the United States.
    Proposed Sec.  303.431(c) would provide requirements for the 
impartiality of the mediator consistent with sections 615(e)(2) and 
639(a)(8) of the Act. Proposed Sec.  303.431(d), regarding a meeting to 
encourage mediation, would incorporate the language in current Sec.  
303.419(c). Current Sec.  303.419(b)(6), regarding the requirement that 
parties sign a confidentiality pledge, would be removed to align with 
section 615(e) of the Act.
State Complaint Procedures
    Proposed Sec.  303.432, regarding the requirement for the lead 
agency to adopt written State complaint procedures, would be 
substantively unchanged from current Sec.  303.510 except that the 
provision in current Sec.  303.510(a)(1)(ii), regarding the option for 
a local public agency to resolve a complaint, would be removed. This 
provision would be removed because, under Part C of the Act, (unlike 
Part B of the Act) virtually all States utilize only the lead agency 
for the resolution of complaints. In addition, because relatively few 
State complaints are filed under Part C of the Act eliminating this 
option would not create any additional burden for States. During 
Federal fiscal year 2004 the average number of State complaints filed 
under Part C of the Act was less than 2.0 per State.
    Proposed Sec.  303.433, regarding the requirements for minimum 
State complaint procedures, would remain substantively unchanged from 
current Sec.  303.512.
    Proposed Sec.  303.433(a)(3) would clarify that a lead agency's 
State complaint procedures must provide the lead agency, public agency, 
or EIS provider with an opportunity to respond to a complaint filed 
under proposed Sec.  303.430(c), including, at a minimum, an 
opportunity for a parent who has filed a complaint and the lead agency, 
public agency, or EIS provider to voluntarily engage in mediation, 
consistent with proposed Sec.  303.430(b). Proposed Sec.  
303.433(b)(1)(ii) regarding time extensions for filing a State 
complaint, would clarify that it would be permissible to extend the 60-
day timeline if the parent (or individual or organization, if mediation 
is available to the individual or organization under State procedures) 
and the lead agency, public agency or EIS provider agree to engage in 
mediation, consistent with proposed Sec.  303.433(a)(3)(ii). Proposed 
Sec.  303.433(c)(3) would incorporate the provisions in current Sec.  
303.512(c)(3).
    Proposed Sec.  303.434, regarding filing a complaint, would remain 
substantively unchanged from current Sec.  303.511 except proposed 
Sec.  303.434(b)(3) and (4) would require a parent filing a State 
complaint to provide the lead agency, public agency, or EIS provider 
with information about the child who is the subject of the complaint, 
which may allow the lead agency, public agency, or EIS provider to 
attempt to resolve the complaint at the earliest opportunity. In 
addition, proposed Sec.  303.434(c) would amend the language in current 
Sec.  303.511(b) to require that the complaint must allege that a 
violation

[[Page 26478]]

occurred not more than one year prior to the date the complaint is 
received, and would remove references to longer periods for continuing 
violations to ensure expedited resolution for public agencies and 
children.
    Proposed Sec.  303.434(d) would require that the party filing a 
complaint forward a copy of the complaint to the public agency or EIS 
provider serving the child at the same time the party files the 
complaint with the lead agency. This provision would ensure that the 
public agency or EIS provider involved has knowledge of the issues, and 
an opportunity to resolve them directly with the complaining party.
States That Choose To Adopt the Part C Due Process Hearing Procedures 
Under Section 639 of the Act
    Proposed Sec. Sec.  303.435 through 303.439, regarding due process 
hearing procedures under Part C of the Act, would remain substantively 
unchanged from current Sec. Sec.  303.420 through 303.425, except that 
the references to ``impartial procedures'' would be replaced with ``due 
process hearing'' to distinguish these procedures from the State 
administrative complaint procedures in proposed Sec. Sec.  303.432 
through 303.434 and in proposed Sec.  303.430(c). Note 1 following 
current Sec.  303.420, regarding the adoption of Part C impartial 
procedures for resolving individual child complaints, would be removed 
because it is substantively incorporated into proposed Sec. Sec.  
303.435 through 303.439. Also, the complaint procedures in Note 1 
following current Sec.  303.420 would be substantively incorporated 
into proposed Sec. Sec.  303.432 through 303.434. Note 2 following 
current Sec.  303.420, indicating that the administrative procedures 
developed by a State should be designed to result in speedy resolution 
of complaints, because an infant's or toddler's development is so rapid 
that undue delay could be potentially harmful, would not be included in 
these proposed regulations because the process for the resolution of 
due process hearing procedures, including timelines, is addressed in 
proposed Sec. Sec.  303.435 through 303.449.
    Proposed Sec.  303.435, regarding appointment of an impartial due 
process hearing officer, would remain substantively unchanged from the 
current Sec.  303.421.
    Proposed Sec.  303.436, regarding parental rights in due process 
hearing procedures, would remain substantively unchanged from the 
current Sec.  303.422.
    Proposed Sec.  303.437, regarding convenience of hearings and 
timelines, would remain substantively unchanged from the current Sec.  
303.423.
    Proposed Sec.  303.438, regarding civil actions, would remain 
substantively unchanged from current Sec.  303.424.
States That Choose To Adopt the Part B Due Process Hearing Procedures 
Under Section 615 of the Act
    Proposed Sec. Sec.  303.440 through 303.448 would incorporate the 
due process hearing procedures for resolving individual child 
complaints under section 615 of the Act and 34 CFR 300.507, 300.508, 
and 300.510 through 300.516 of the Part B regulations (71 FR 46793-
46796), and proposed Sec.  303.449 would align with section 
615(e)(2)(F) of the Act. These regulations are included to make these 
proposed Part C regulations a freestanding document to assist families, 
EIS providers, and lead agencies in accessing the provisions of the 
Part B due process hearing procedures under section 615 of the Act, 
which a Part C lead agency may choose to adopt under proposed Sec.  
303.430(d).
    The note following current Sec.  303.423 would not be included in 
the proposed regulations because the procedures for resolving Part B 
due process complaints under section 615 of the Act would be 
substantively included in proposed Sec. Sec.  303.440 through 303.449, 
except that the portion of the note regarding the State being 
encouraged (but not required) to accelerate the timeline for the due 
process hearing because the needs of children in the birth-through-two 
age range change rapidly, would be removed because the process for the 
resolution of impartial individual child complaints, including 
timelines, is addressed in proposed Sec. Sec.  303.440 through 303.449.
    Proposed Sec.  303.440(a) would reflect the change in 34 CFR 
300.507(a) of the Part B regulations (71 FR 46793), regarding 
initiating a due process hearing on matters regarding the 
identification, evaluation, or placement of a child, or the provision 
of appropriate early intervention services, to specify that a party 
could ``file a due process complaint,'' as opposed to ``initiate,'' a 
hearing on these matters.
    Proposed Sec.  303.440(a)(2) would reflect the requirement in 
section 615(b)(6)(B) of the Act concerning the time period for filing a 
request for a due process hearing after the alleged violation has 
occurred. Proposed Sec.  303.440(b), consistent with the revision to 34 
CFR 300.507(b) of the Part B regulations (71 FR 46793), would include 
information regarding the responsibility of the lead agency, under 
certain circumstances, to provide information about available free or 
low-cost legal or other relevant services to parents.
    Proposed Sec.  303.440(c) would clarify that the lead agency may 
adopt a 30- or a 45-day timeline, subject to proposed Sec.  303.447(a), 
for the resolution of due process complaints and must specify in its 
written policies and procedures under proposed Sec.  303.123 and in its 
prior written notice under proposed Sec.  303.421, the specific 
timeline that it has adopted.
    Proposed Sec.  303.441 would substantively include language from 34 
CFR 300.508 of the Part B regulations (71 FR 46793-46794) regarding due 
process complaints. Additionally, proposed Sec.  303.441(a), (b), and 
(c) would incorporate new language from section 615(b)(7) of the Act. 
Proposed Sec.  303.441 would include language concerning the obligation 
to provide a due process complaint to the other party, the required 
content of the complaint notice, and the requirement that a due process 
hearing may not be held until the party, or the attorney representing 
the party, files the due process complaint. These changes should help 
clarify that the complaint and complaint notice would be the same 
document, which should aid in smooth implementation of these new 
provisions.
    Proposed Sec.  303.441(a)(2) would require the party requesting the 
hearing to forward a copy of the due process complaint to the lead 
agency to align with section 615(b)(7)(A)(i) of the Act. Proposed Sec.  
303.441(b) would address the contents of the due process complaint and 
would align with section 615(b)(7)(A)(ii) of the Act. Proposed Sec.  
303.441(c), regarding the notice required before a hearing on a due 
process complaint, would include language from section 615(b)(7)(B) of 
the Act. Proposed Sec.  303.441(d) and (e) would incorporate the new 
language from section 615(c)(2) of the Act concerning due process 
complaint sufficiency and response to a due process complaint. Proposed 
Sec.  303.441(e) would address the lead agency's or EIS provider's 
responsibility to send a parent a response to the due process complaint 
if the lead agency had not sent a prior written notice to the parent 
regarding the subject matter contained in the parent's due process 
complaint. Proposed Sec.  303.441(e)(1) would outline what information 
must be contained in the response.
    Proposed Sec.  303.442 would substantively include language from 34 
CFR 300.510 of the Part B regulations (71 FR 46794) regarding the 
resolution process. Additionally, proposed Sec.  303.442(a)(4) would be 
added to

[[Page 26479]]

include the substance of note 212 of the Conf. Rpt. that the parent and 
the lead agency must determine the relevant members of the IFSP team to 
attend the resolution meeting. Proposed Sec.  303.442(b)(2) would 
clarify that the regulatory timeline for issuing a final due process 
hearing decision begins at the end of the 30-day resolution period that 
starts when the due process complaint is received. This provision is 
based on the language in section 615(f)(1)(B)(ii) of the Act stating 
that the applicable timelines for a due process hearing commence at the 
end of this 30-day period. Proposed Sec.  303.442(b)(3) would provide, 
however, that the resolution process and due process hearing would be 
delayed until the resolution meeting is held if a parent filing a due 
process complaint fails to participate in the resolution meeting. 
Proposed Sec.  303.442(b)(3) is based on H. Rep. No. 108-77, p. 114 
that provides: ``[If] the parent and the State or lead agency mutually 
agree that the meeting does not need to occur, the resolution session 
meeting does not need to take place. However, unless such an agreement 
is reached, the failure of the party bringing the complaint to 
participate in the meeting will delay the timeline for convening a due 
process hearing until the meeting is held.''
    Proposed Sec.  303.442(c) would incorporate the requirement from 
section 615(f)(1)(B) of the Act, regarding the conducting of resolution 
meetings, unless waived by joint agreement of the parties prior to the 
opportunity for an impartial due process hearing. Proposed Sec.  
303.442(d) includes language from section 615(f)(1)(B)(iii) of the Act 
regarding the contents of a legally binding written settlement 
agreement. Proposed Sec.  303.442(e) includes language from section 
615(f)(1)(B)(iv) of the Act regarding the ability of a party who 
executed a settlement agreement to void the agreement within three 
business days.
    Proposed Sec.  303.443 would substantively include language from 34 
CFR 300.511 of the Part B regulations (71 FR 46794-46795) regarding 
impartial due process hearings. Additionally, proposed Sec.  303.443(a) 
and (b) would incorporate the language from section 615(f)(1)(A) of the 
Act regarding impartial due process hearings. Proposed Sec.  303.443(b) 
would include the language from section 615(f)(1)(A) of the Act, and 
would indicate that the lead agency directly responsible for the early 
intervention services of the infant or toddler, as determined under 
State statute, be responsible for conducting the due process hearing. 
Proposed Sec.  303.443(c)(1) would include the language regarding 
qualifications of hearing officers from section 615(f)(3)(A) of the 
Act. Proposed Sec.  303.443(c) would incorporate the regulatory 
language in 34 CFR 300.511(c) of the Part B regulations (71 FR 46795) 
regarding the non-employee status of the hearing officer and the 
requirement for the public agency to keep a list of hearing officers 
and their qualifications. Proposed Sec.  303.443(d), (e), and (f) would 
include the requirements in section 615(f)(3)(B), (C), and (D) of the 
Act concerning the subject matter of the due process hearings, 
timelines for requesting hearings and exceptions to the timelines, 
respectively.
    Proposed Sec.  303.444(a), (b), and (c) would incorporate the due 
process hearing rights addressed in section 615(f)(2) and (h) of the 
Act and in 34 CFR 300.512 of the Part B regulations (71 FR 46795). In 
addition, proposed Sec.  303.444(a)(4) and (5) would include the 
language from section 615(h)(3) and (4) of the Act indicating that 
parents would have a right to obtain copies of a written, or, at the 
option of the parents, electronic, verbatim record of the hearing and 
copies of findings of fact and decisions, and public agencies would 
remain responsible for ensuring that these rights are effectively 
implemented. The language in 34 CFR 300.512(c)(3) of the Part B 
regulations (71 FR 46795) concerning providing the record of the 
hearing and decision at no cost to the parents is included in proposed 
Sec.  303.444(c)(3).
    Proposed Sec.  303.445 would substantively include language from 34 
CFR 300.513 of the Part B regulations (71 FR 46795) regarding hearing 
decisions. Proposed Sec.  303.445(a) would include the language in 
section 615(f)(3)(E) of the Act concerning the nature of hearing 
officer decisions, including the requirement that decisions be made on 
substantive grounds, and the standards for when procedural violations 
can be found to deny appropriate identification, evaluation, placement, 
or provision of early intervention services, and would clarify that a 
hearing officer can order an EIS provider to comply with procedural 
requirements.
    Proposed Sec.  303.445(b) would incorporate the construction clause 
from section 615(f)(3)(F) of the Act. In addition, proposed Sec.  
303.445(b) would clarify language in note 225 of the Conf. Rpt., which 
indicates that the statutory reference to a complaint was intended to 
address a State-level administrative appeal process, if available in 
that State.
    Proposed Sec.  303.445(c) would incorporate the requirement from 
section 615(o) of the Act that nothing prevents a parent from filing a 
separate due process complaint on an issue separate from the due 
process complaint that has already been filed. However, note 220 of the 
Conf. Rpt. states that: ``the Conferees intend to encourage the 
consolidation of multiple issues into a single complaint where such 
issues are known at the time of the filing of the initial complaint.''
    Proposed Sec.  303.445(d) would include the language from section 
615(h)(4)(A) of the Act concerning the availability of hearing 
decisions to the public. This is also consistent with the requirements 
of section 617(b) of the Act relating to the confidentiality of data.
    Proposed Sec.  303.446, on finality of decision, appeal, and 
impartial review, and proposed Sec.  303.447, regarding timelines and 
convenience of hearings and reviews, would substantively include 34 CFR 
300.514 and 300.515, respectively, of the Part B regulations (71 FR 
46795-46796), with cross-references updated to include the proposed 
regulations under Part C of the Act.
    Proposed Sec.  303.447(a) also would be revised to start the 45-day 
timeline from the expiration of the 30-day period for resolution under 
proposed Sec.  303.442, rather than from the date when the agency 
receives a due process complaint. This change is based on revised 
language in section 615(f)(1)(B)(ii) of the Act providing that the 
timelines for a due process hearing commence at the expiration of the 
resolution period.
    Proposed Sec.  303.448(a) through (e), regarding civil actions, 
incorporates the language from section 615(i)(2), (i)(3)(A), and (l) of 
the Act and would substantively include language in 34 CFR 300.516 of 
the Part B regulations (71 FR 46796). Additionally, the requirement in 
section 615(i)(2)(B) of the Act is included in proposed Sec.  
303.448(b), which provides for a time limit of 90 days from the date of 
the final State administrative decision to file a civil action, or if 
the State has an explicit time limitation for bringing a civil action 
under Part C of the Act, in the time allowed by that State law. 
Proposed Sec.  303.449 would include language from section 615(e)(2)(F) 
and (f)(1)(B) of the Act regarding the State's use of other mechanisms 
to enforce mediation.

Subpart F--Use of Funds and Payor of Last Resort

    Proposed subpart F would incorporate provisions in sections 632, 
635, 638, and 640 of the Act regarding use of Part

[[Page 26480]]

C funds, payor of last resort provisions, and system of payments 
requirements.

General

    Proposed Sec.  303.500 would require each statewide system to have 
written policies and procedures that meet the fiscal and interagency 
requirements set forth in the system of payments, interagency, use of 
funds, confidentiality, and payor of last resort provisions in sections 
632(4)(B), 635(a)(10), 635(a)(12), 638, 639(a)(2), and 640 of the Act. 
Proposed Sec.  303.500 would clarify that a State's written policies 
and procedures must include the identification and coordination of 
funding resources for, and the provision of, early intervention 
services under Part C of the Act within the State and would incorporate 
the requirements in current Sec. Sec.  303.173 and 303.174 and in 
sections 634, 635 and 640 of the Act.
Use of Funds
    Proposed Sec.  303.501, regarding permissive use of funds by the 
lead agency would incorporate the provisions in section 638 of the Act 
and the provisions in current Sec. Sec.  303.3 and 303.560, modified to 
reflect statutory changes. The major substantive change from the 
current regulations is in proposed Sec.  303.501(d). Proposed Sec.  
303.501(d) would incorporate the language from section 638(4) of the 
Act regarding the permissive use of Part C funds to make early 
intervention services available to children ages three and older 
consistent with proposed Sec.  303.211.
Payor of Last Resort
    Proposed Sec.  303.510, regarding payor of last resort 
requirements, reflects the provisions in section 640(a) and (c) of the 
Act, and would remain substantially unchanged from the provisions in 
current Sec.  303.527. Proposed Sec.  303.510(b), regarding interim 
payments when reimbursement is delayed, would be substantively the same 
as the language in current Sec.  303.527(b)(2)(i) through (iii) and 
(b)(3).
    Proposed Sec.  303.511, regarding establishing financial 
responsibility for and methods of ensuring services, would combine many 
of the provisions in current Sec. Sec.  303.520 through 303.528 with 
modifications to reflect the statutory provisions in section 640(b) of 
the Act. Section 640(b) of the Act provides that a State may meet 
certain fiscal and interagency coordination requirements regarding 
provision of services under Part C of the Act by using one of three 
methods: (1) State law or regulations, (2) interagency or intra-agency 
agreements that identify the responsibilities of each agency, or (3) 
other appropriate written methods (once approved by the Secretary). 
Proposed Sec.  303.511(a)(1) through (3) would identify these three 
options.
    Proposed Sec.  303.511(b) would require, consistent with section 
640(b)(1)(A) of the Act and current Sec.  303.523, that each method 
define the financial responsibility of each agency for paying for early 
intervention services or other functions authorized under Part C of the 
Act, including child find and evaluations and assessments, consistent 
with State law and the requirements of Part C of the Act.
    Proposed Sec.  303.511(c)(1) would require, consistent with section 
640(b)(1)(A)(ii) of the Act and current Sec. Sec.  303.523(c) and 
303.528, that each method must include procedures for achieving a 
timely resolution of intra-agency and interagency disputes about 
payments for a given service, or disputes about other matters related 
to the State's early intervention service program. Those proposed 
procedures would require a mechanism for resolution of intra-agency 
disputes within agencies and for the Governor, Governor's designee, or 
the lead agency to make a final determination for interagency disputes, 
which determination must be binding upon the agencies involved.
    Proposed Sec.  303.511(c)(2) would clarify that the method must 
permit the agency to resolve its own internal disputes (based on the 
agency's procedures that are included in the agreement), so long as the 
agency acts in a timely manner; and include the process that the lead 
agency will follow in achieving resolution of intra-agency disputes, if 
a given agency is unable to resolve its own internal disputes in a 
timely manner.
    Proposed Sec.  303.511(c)(3) would incorporate the Note following 
current Sec.  303.523 regarding interagency dispute resolution to 
require that if, during the lead agency's resolution of the dispute, 
the Governor, Governor's designee, or lead agency determines that the 
assignment of financial responsibility under proposed Sec.  303.511 was 
inappropriately made, the Governor, Governor's designee or lead agency 
must reassign the responsibility to the appropriate agency; and the 
lead agency must make arrangements for reimbursement of any 
expenditures incurred by the agency originally assigned responsibility.
    Proposed Sec.  303.511(d), regarding the delivery of services in a 
timely manner, would incorporate these requirements from current Sec.  
303.525 and require that the methods adopted by the State under 
proposed Sec.  303.511 must include a mechanism to ensure that no 
services that a child is entitled to receive under Part C of the Act 
are delayed or denied because of disputes between agencies regarding 
financial or other responsibilities; and must be consistent with the 
written funding policies adopted by the State under proposed Sec.  
303.511.
    Proposed Sec.  303.511(e) would require that each method must 
include any additional components necessary to ensure effective 
cooperation and coordination among, and the lead agency's general 
supervision (including monitoring) of, all public agencies and early 
intervention service providers involved in the State's early 
intervention service programs.
Use of Insurance, Benefits, Systems of Payment, and Fees
    Proposed Sec.  303.520, regarding policies related to use of 
insurance for payment for services, and proposed Sec.  303.521, 
regarding a system of payments and fees, would incorporate certain 
requirements in current Sec. Sec.  303.520 and 303.521.
Public Insurance and Benefits and Private Insurance
    Proposed Sec.  303.520(a) and (b), regarding policies related to 
use of public insurance or benefits and private insurance for payment 
for services, would clarify when public insurance or benefits and 
private insurance may be used to pay for services pursuant to sections 
632(4)(B), 635(a)(10), and 640 of the Act.
    Proposed Sec.  303.520(a)(1)(i), consistent with sections 632(4)(B) 
and 639(a)(2) of the Act, would allow a State to access a parent's 
public insurance or benefits when the parent is already enrolled if the 
parent provides consent to disclose personally identifiable information 
in accordance with proposed Sec.  303.414.
    Proposed Sec.  303.520(a)(1)(ii) would clarify that a lead agency 
may use public insurance or benefits, without first obtaining parental 
consent under proposed Sec. Sec.  303.7, 303.414, and 303.420(a)(3), 
for children in foster care when these children are eligible under the 
State's Medicaid plan. This provision was added because the Act places 
significant emphasis on finding children in foster care, and it is 
important to clarify for lead agencies the circumstances under which 
they may access public insurance or benefits for these children. 
Moreover, the provisions in existing laws deem virtually all children 
receiving foster care assistance under section 472 of the Social 
Security Act to be automatically eligible for

[[Page 26481]]

Medicaid under Title XIX of the Social Security Act.
    Proposed Sec.  303.520(a)(1)(iii) would clarify that a State may 
access a parent's public insurance or benefits program when the parent 
is not already enrolled in a public insurance or benefits program if 
the parent provides consent under proposed Sec. Sec.  303.7, 303.414, 
and 303.420(a)(3), to enroll in such a program. This provision would be 
added to clarify existing confidentiality requirements. This provision 
also is necessary to ensure parents are aware of the opportunity to 
enroll, and provide informed consent prior to enrollment, in a public 
insurance or benefits program because enrollment in a public insurance 
or benefits program can potentially have significant negative impact on 
an individual's insurability, credit rating, immigration status, and 
status under other Federal assistance programs.
    Proposed Sec.  303.520(a)(2) would clarify that, if a State 
requires parents to pay the costs incurred as a result of participating 
in a public insurance or benefits program (such as co-payments, 
premiums or deductibles or the required use of private insurance as the 
primary insurance), these costs must be identified in the State's 
policies regarding its system of payments under proposed Sec.  303.521.
    Proposed Sec.  303.520(a)(3) would clarify that when obtaining 
parental consent under proposed Sec.  303.520(a), the lead agency must 
provide parents with a copy of the State's system of payments policies 
that identify potential costs that the parent may incur while enrolled 
in a public insurance or benefits program and to ensure that the 
consent is informed. Proposed Sec.  303.520(a)(3) is being added to 
ensure that parents would be informed of those costs as part of 
consenting to the use of public insurance or benefits to pay for early 
intervention services.
    Proposed Sec.  303.520(b)(1)(i) would permit States to use private 
insurance to pay for early intervention services if the State obtains 
parental consent as defined in proposed Sec.  303.7 and in accordance 
with proposed Sec. Sec.  303.414 and 303.420(a)(3) prior to accessing 
the parent's private insurance.
    Proposed Sec.  303.520(b)(1)(ii) would require that any types of 
costs (including co-payments, premiums or deductibles) that may be 
charged to the parent as a result of using the parent's private 
insurance be identified in the State's system of payments policies 
under proposed Sec.  303.521. Proposed Sec.  303.520(b)(1)(iii) would 
require that a copy of this policy be provided to parents when 
obtaining consent.
    Proposed Sec.  303.520(b)(1)(iv) would incorporate requirements in 
current Sec.  303.520(b)(3) that, if a parent or family is determined 
unable to pay under the State's definition of inability to pay that is 
required in proposed Sec.  303.521(a)(3) and does not provide consent 
under proposed Sec.  303.520(b)(1)(i), the lack of consent may not be 
used to delay or deny any Part C services to the child or family.
    Proposed Sec.  303.520(b)(2) would provide a specific exception to 
the parental consent requirements in proposed Sec.  303.520(b)(1) for 
those States that have adopted specific statutes requiring private 
insurance companies and other entities to provide coverage for Part C 
early intervention services. This exception would only apply if the 
State statute ensures that--(1) lifetime coverage caps for the infant 
or toddler with a disability and parents are not triggered by the use 
of health insurance benefits to pay for Part C early intervention 
services; (2) the health insurance coverage of the infant or toddler 
with a disability and his or her family may not be discontinued due to 
the use of the health insurance to pay for Part C services; and (3) 
health insurance premiums and costs for the infant or toddler with a 
disability or his or her family may not be increased solely due to use 
of the health insurance to pay for Part C services.
    Proposed Sec.  303.520(b)(3) would clarify that if a State has 
enacted a State statute regarding private health insurance coverage 
that meets the requirements in proposed Sec.  303.520(b)(2) for early 
intervention services under Part C of the Act that ensures that the use 
of private health insurance to pay for Part C services, the State may 
reestablish, for nonsupplanting purposes, in the next Federal fiscal 
year following the effective date of the statute, a new baseline of 
State and local expenditures under proposed Sec.  303.225(b). This 
provision would be added to ensure that States that enacted protective 
statutes as part of the State's system of payments to ensure funding 
for Part C services would be able to factor in the change in funding 
sources for nonsupplanting purposes under Part C of the Act.
    Proposed Sec.  303.520(c)(1) and (2), regarding the treatment of 
public and private insurance proceeds and reimbursements from public 
benefits under 34 CFR 80.25, would remain substantively unchanged from 
current Sec.  303.520(d). However, given the Federal interest in 
ensuring the use of overall Federal funds (including Part C and 
Medicaid funds) to increase the availability of services to children 
with disabilities, the Department seeks comment on whether funds from 
public benefits (such as Medicaid reimbursements) should continue to be 
excluded from treatment as program income under 34 CFR 80.25. 
Specifically, the Department invites comment on the potential estimated 
cost to States in characterizing these funds as program income (and the 
concomitant requirement that such funds be used for Part C purposes) as 
well as the potential estimated benefits to the Federal program and 
children served under Part C.
    Proposed Sec.  303.520(c)(3) would add that if the State spends 
funds from a State public insurance or benefits program or the State 
portion of a Federal public benefits program (such as the State portion 
of Medicaid costs) for services under this part, those funds may, but 
are not required to, be considered State or local funds under proposed 
Sec.  303.225(b). This proposed provision would also add however that, 
if a State has elected to include such funds for purposes of 
nonsupplanting provisions in proposed Sec.  303.225(b), it must 
continue to aggregate such amounts for all future years. Proposed Sec.  
303.520(c)(4) would add that if the State spends funds from private 
insurance for services under this part, those funds are considered 
neither State nor local funds for nonsupplanting purposes under 
proposed Sec.  303.225.
    Proposed Sec.  303.520(d)(1) and (2) would clarify that funds 
received from a parent or family under a State's system of payments are 
``program income'' under 34 CFR 80.25, would not need to be deducted 
from the total allowable costs charged under Part C of the Act, and 
must be used for the State's Part C early intervention services 
program, consistent with 34 CFR 80.25(g)(1) and (2). Proposed Sec.  
303.520(d)(3) would clarify that these funds would not be considered 
either State or local funds for non-supplanting purposes under proposed 
Sec.  303.225(b).
System of Payments and Fees
    Proposed Sec.  303.521(a), regarding a State's system of payments 
and fees, would incorporate language from current Sec.  303.521(a) 
regarding a schedule of sliding fees and would further require States 
to identify in their system of payments policies: (1) Any cost 
participation fees (such as co-pays or deductible amounts) required to 
be paid under Federal, State, local or private insurance or benefits 
programs for which the infant or toddler with a disability or family is 
enrolled, that meet the requirements of proposed Sec. Sec.  303.520 and 
303.521; and (2) which

[[Page 26482]]

functions or services will be subject to the system of payments, 
including any fees charged to the family as a result of using the 
family's public or private insurance.
    Proposed Sec.  303.521(a)(3) would require a State to include in 
its system of payments policies the State's definition of inability to 
pay (including its definition of income and family expenses). Proposed 
Sec.  303.521(a)(4) would be substantively unchanged from current Sec.  
303.520(b)(3) except that proposed Sec.  303.521(a)(4)(iii) would 
require States to assure that families will not be charged more than 
the actual cost of the services and families with public insurance or 
benefits or private insurance will not be charged disproportionately 
more than families who do not have public insurance or benefits or 
private insurance.
    Thus, when read together, under proposed Sec. Sec.  303.520(b) and 
303.521, a Part C lead agency would continue to be able to require 
parents either to pay the costs of providing early intervention 
services or to provide their consent for use of their public insurance 
or benefits or private insurance. Parents would have the option under 
proposed Sec.  303.520(a) and (b) to allow the State to use their 
public insurance or benefits or private insurance or to pay the fees 
established by the State according to any system of payments 
established by the State under proposed Sec. Sec.  303.520 and 303.521.
    Proposed Sec.  303.521(a)(5) would specify that a State's system of 
payments policies must include provisions that failure to provide the 
requisite income information and documentation may result in a charge 
of a fee and specify the fee that may be charged to the parent. 
Proposed Sec.  303.521(a)(6) would clarify that the system of payments 
policies must include provisions that a lead agency may, but is not 
required to, use Part C funds or other funds to pay for costs or fees 
to be paid by a parent under proposed Sec. Sec.  303.521(a)(1) and 
303.520(a)(2) (use of public insurance or benefits) or (b)(1)(ii) (use 
of private insurance). However, for a parent determined unable to pay 
under proposed Sec.  303.521(a)(4)(ii), proposed Sec.  303.521(a)(6) 
would clarify that, consistent with current requirements, the lead 
agency must use Part C funds or other funds to cover the costs for the 
Part C services provided to the child of the parent.
    Proposed Sec.  303.521(b), regarding functions not subject to fees, 
would remain unchanged from current Sec.  303.521(b). Proposed Sec.  
303.521(c) regarding States with FAPE mandates, or that use Part B 
funds to serve infants or toddlers with disabilities under age three, 
would incorporate the longstanding requirements in current Sec.  
303.521(c) that if a State is required by law to provide FAPE to 
infants or toddlers with a disability under the age of three, those 
services that constitute FAPE must be provided at no cost and must 
comport with the requirements of Parts B and C of the Act.
    Specific sections of the Act permit States to use Part B funds for 
infants or toddlers with a disability under Part C of the Act and do 
not require the provision of FAPE. These are:

--Section 611(e)(2)(C)(i), which allows States to use Part B funds for 
direct and support services (which can include child find for children 
with disabilities under Part B of the Act);
--Section 611(e)(1)(D), which allows States to use State administrative 
set-aside funds under section 611 of the Act for Part C administration 
if the SEA is the lead agency;
--Section 619(f)(1), which allows States to use Part B section 619 
funds for support services (including mediation) for children under 
three and above five if the services primarily benefit three through 
five year olds;
--Section 619(f)(6), which allows Part B section 619 funds to be used 
to provide service coordination or case management for families 
receiving services under Part C of the Act; and
--Sections 611(e)(7) (regarding the ability to use funds available 
under Part B of the Act in sections 611(e)(1)(A), 619(f)(5), and 643(e) 
(regarding funds under Part C of the Act), which provisions allow the 
use of specific Part B and Part C funds for providing Part C services 
to children in States that elect to serve children under section 635(c) 
of the Act and proposed Sec.  303.211.

    In addition, section 619(a)(2) of the Act provides that Part B 
section 619 funds can be used to pay for the provision of special 
education and related services for two year olds who will turn three 
during the school year. However, these special education and related 
services (that constitute FAPE for the two-year old) would be required 
to be provided at no cost to the family, consistent with the 
requirements of Part B of the Act.
    Proposed Sec.  303.521(d)(1) would clarify that family fees 
collected under a State's system of payments are considered program 
income under EDGAR, 34 CFR 80.25. Under this provision, a State would 
be permitted to add these fees to its Part C grant funds rather than 
deducting the program income from the State's Part C grant (which the 
Department has the discretion to authorize under 34 CFR 80.25). Under 
this provision, any family fees collected must be used by the State for 
the purposes of the Part C grant. Proposed Sec.  303.521(d)(2) would 
clarify that, under EDGAR, family fees collected under a State's system 
of payments would be considered neither State nor local funds under 
proposed Sec.  303.225(b).

Subpart G--State Interagency Coordinating Council

    Proposed subpart G would incorporate the provisions of section 641 
of the Act, regarding the State Interagency Coordinating Council 
(Council), which are in current subpart G.
    Proposed Sec.  303.600 would retain the provisions in current Sec.  
303.600 regarding the establishment of the Council.
    Proposed Sec.  303.601(a)(1)(i) and (ii) would retain the 
requirements in current Sec.  303.601(a)(1)(i) and (ii) regarding 
parent membership on the Council. Proposed Sec.  303.601(a)(1)(iii) 
would incorporate the first paragraph in the note following current 
Sec.  303.600 to require that, to avoid a potential conflict of 
interest, a parent member may not be an employee of a public or private 
agency involved in providing early intervention services. The second 
paragraph in the note following current Sec.  303.600, suggesting that 
consideration be given to maintaining an appropriate balance between 
the urban and rural communities of the State, would be removed as 
duplicative of proposed Sec.  303.600(b).
    Proposed Sec.  303.601(a)(2) through (6) regarding the composition 
of the Council would reflect the statutory provisions in section 
641(b)(1)(A) through (F) of the Act and would remain substantively 
unchanged from current Sec.  303.601(a)(2) through (6). Proposed Sec.  
303.601(a)(7) and (11) through (13) would reflect the provisions in 
section 641(b)(1)(G) and (K) through (M) of the Act, which provide for 
additional members to be included on the Council. Proposed Sec.  
303.601(a)(7) would provide for at least one member to be from the 
agency responsible for the State Medicaid program in accordance with 
section 641(b)(1)(G) of the Act. Proposed Sec.  303.601(a)(8) and (9), 
regarding members from Head Start or Early Head Start and the State 
agency responsible for child care, would reflect the statutory 
provisions in section 641(b)(1)(H) and (I) of the Act and would be 
substantively unchanged from

[[Page 26483]]

current Sec.  303.601(a)(8) and (9). Proposed Sec.  303.601(a)(10), 
regarding the member from the agency responsible for the State 
regulation of health insurance, would remain essentially the same as 
current Sec.  303.601(a)(7) except that ``State governance'' would be 
replaced with ``State regulation'' to incorporate the language in 
section 641(b)(1)(J) of the Act. Proposed Sec.  303.601(a)(11) would 
provide for at least one member to be from the Office of the 
Coordination of Education of Homeless Children and Youth, consistent 
with section 641(b)(1)(K) of the Act. Proposed Sec.  303.601(a)(12) 
would provide for the Council to include a member from the State child 
welfare agency responsible for foster care, consistent with section 
641(b)(1)(L) of the Act and proposed Sec.  303.601(a)(13) would provide 
that at least one member be from the agency responsible for children's 
mental health, consistent with section 641(b)(1)(M) of the Act.
    Proposed Sec.  303.601(b) would be added to clarify that the 
Governor may appoint one member to represent more than one agency 
listed under proposed Sec.  303.601(a)(7) through (a)(13). Proposed 
Sec. Sec.  303.601(c) and (d) would retain the provisions in current 
Sec. Sec.  303.601(b) and 303.604, respectively, and reflect the 
requirements of section 641(b)(2) and (f) of the Act, respectively. 
Proposed Sec.  303.601(d) would also incorporate the language in 
section 641(f) of the Act that no member may cast a vote on any matter 
that would provide direct financial benefit to the member or otherwise 
give the appearance of a conflict of interest under State law.
    Proposed Sec.  303.602, regarding Council meetings, would revise 
current Sec.  303.603 to incorporate minor wording changes in section 
641(c) of the Act. Proposed Sec.  303.602(a) would revise current Sec.  
303.603(a) to be consistent with the language in section 641(c) of the 
Act, including clarifying that the Council must meet, at a minimum, on 
a quarterly basis. Proposed Sec.  303.602(b)(3) would remain 
substantively unchanged from current Sec.  303.603(c) requiring 
meetings to have interpreters, as needed, and permitting the use of 
Part C funds for interpreter services at those meetings.
    Proposed Sec.  303.602(b)(1), requiring that Council meetings be 
announced in advance, would substantively be the same as current Sec.  
303.603(b)(1). Additionally, proposed Sec.  303.602(b)(2) is 
substantively unchanged from current Sec.  303.603(b)(2), requiring 
that, to the extent appropriate, meetings be open and accessible to the 
general public.
    Proposed Sec.  303.603, regarding how the Council may use Part C 
funds, would incorporate the provisions of current Sec.  303.602 and 
the provisions in section 641(d) of the Act. Proposed Sec.  303.603(a) 
and (b) would retain the provisions in current Sec.  303.602(a)(1) 
through (5) regarding the use of funds and in current Sec.  303.602(b) 
regarding the requirement that Council members must serve without 
compensation from funds available under Part C of the Act, except as 
provided in proposed Sec.  303.603(a).
    Proposed Sec.  303.604 regarding the functions of the Council, 
would combine and revise current Sec. Sec.  303.650 through 303.653, 
consistent with the requirements in section 641(e) of the Act. Proposed 
Sec.  303.604(a) would retain the provisions in current Sec. Sec.  
303.651 and 303.652 except that proposed Sec.  303.604(a)(3) would 
remove references to interagency agreements and refer instead to 
``methods'' (which can include interagency agreements) as specified in 
section 640(b)(3) of the Act. Proposed Sec.  303.604(a)(3) also 
specifically references the proposed regulatory sections that require 
interagency coordination and collaboration regarding child find, 
monitoring, transition, financial responsibility, and provision of 
early intervention services. Proposed Sec.  303.604(a)(4) would retain 
the provisions of current Sec.  303.652 regarding the Council's 
function to assist the lead agency in the preparation of applications 
and amendments to those applications.
    Proposed Sec.  303.604(b) would include the language from current 
Sec.  303.653 that the Council must also advise and assist the lead 
agency regarding transition of toddlers with disabilities to preschool 
and other appropriate services.
    Proposed Sec.  303.604(c)(1), in accordance with section 
641(e)(1)(D) of the Act, would retain the provisions in current Sec.  
303.654(a) regarding the Council's responsibility to annually report to 
the Governor and to the Secretary on the status of early intervention 
programs operated within the State. Proposed Sec.  303.604(c)(2) would 
also retain the provision in current Sec.  303.654(b), that each annual 
report must contain the information required by the Secretary for the 
year for which the report is made.
    Proposed Sec.  303.605(a) would reflect the provisions in current 
Sec. Sec.  303.650(b) permitting the Council to advise and assist the 
lead agency and SEA in the provision of appropriate services for 
children with disabilities from birth through age five including the 
transition from services under Part C of the Act to other appropriate 
services.
    Proposed Sec.  303.605(b) would incorporate current language from 
current Sec.  303.650(c) permitting the Council to advise appropriate 
agencies in the State with respect to the integration of services for 
infants and toddlers with disabilities and at-risk infants and toddlers 
and their families, regardless of whether at-risk infants and toddlers 
are eligible for early intervention services in the State.

Subpart H--Federal Administration and Allocation of Funds

    Proposed subpart H would incorporate provisions from sections 642 
and 643 of the Act. Section 642 of the Act provides that the 
requirements in section 616 of the Act regarding monitoring and 
enforcement and the requirements in section 618 of the Act regarding 
data collection are applicable to Part C of the Act.
    The requirements in section 616 of the Act would be reflected in 
proposed Sec. Sec.  303.700 through 303.708 and the requirements in 
section 618 of the Act would be reflected in proposed Sec. Sec.  
303.720 through 303.724. The provisions in section 643 of the Act 
regarding procedures for allocating grant funds to States would be 
reflected in proposed Sec. Sec.  303.730 through 303.734.
Monitoring, Technical Assistance, and Enforcement
    Proposed Sec. Sec.  303.700 through 303.708 regarding monitoring 
and enforcement would incorporate the statutory requirements under 
section 616 of the Act, which apply to Part C of the Act under section 
642 of the Act. The proposed regulatory requirements adopt the 
statutory language with appropriate modifications to include the 
provisions of Part C of the Act.
    Proposed Sec.  303.700(a) would include the new provisions in 
section 616(a)(1)(C) of the Act, which sets forth the responsibility of 
States to monitor, enforce, and annually report on the implementation 
of the Part C program by EIS programs, as defined in proposed Sec.  
303.11. In addition, proposed Sec.  303.700(a) would require the lead 
agency to make determinations annually about the performance of each 
EIS program using the categories identified in proposed Sec.  303.703. 
Also, proposed Sec.  303.700(a) would require the State to report 
annually on the performance of the State under the State's performance 
plan as provided in proposed Sec.  303.702.
    Proposed Sec.  303.700(b) would reflect the new statutory 
requirement in section 616(a)(2) of the Act that the primary focus of 
monitoring is on improving early intervention results and functional

[[Page 26484]]

outcomes for infants and toddlers with disabilities.
    Proposed Sec.  303.700(c) would reflect new requirements in section 
616(a)(3) of the Act that States measure performance in monitoring 
priority areas using quantifiable indicators and such qualitative 
indicators as are needed to adequately measure performance. Proposed 
Sec.  303.700(c) would clarify that these indicators are established by 
the Secretary in the context of informing States of the requirements 
under the State's performance plan.
    Proposed Sec.  303.700(d) lists the priority areas States must 
monitor under Part C of the Act. These areas are early intervention 
services in natural environments and State exercise of general 
supervision.
    Proposed Sec.  303.700(e) would clarify that the State, in 
exercising its monitoring responsibilities under proposed Sec.  
303.700(d), must ensure that when it identifies noncompliance with the 
requirements of Part C of the Act by EIS programs and EIS providers, 
the noncompliance is corrected as soon as possible and in no case later 
than one year after the State's identification. The language in this 
section would align with the addition of the language in proposed Sec.  
303.120(a)(2)(iv).
    We propose to add Sec.  303.700(e) because, based on our monitoring 
activities, we have determined that correction of noncompliance does 
not always occur in a timely manner. Proposed Sec.  303.700(e) would 
clarify expectations regarding the timely correction of noncompliance. 
It is important to correct noncompliance in a timely manner to ensure 
that infants and toddlers with disabilities and their families receive 
appropriate early intervention services. Correction of noncompliance 
means that the State required the EIS program or EIS provider to revise 
any noncompliant policies, procedures and/or practices and the State 
has verified through follow-up review of data, other documentation and/
or interviews that the noncompliant policies, procedures and/or 
practices have been revised and the noncompliance has been corrected. 
We believe that one year is a reasonable amount of time for the LEA to 
correct noncompliant policies, procedures and/or practices and for the 
State to verify the correction.
    Proposed Sec.  303.701 would reflect new statutory language in 
section 616(b) of the Act requiring States to have a performance plan 
that evaluates their efforts to implement the requirements and purposes 
of Part C of the Act and describes how the State will improve 
implementation. Under proposed Sec.  303.701(a) the plan must establish 
measurable and rigorous targets for the indicators established by the 
Secretary under the priority areas described in proposed Sec.  
303.700(d). Consistent with the new statutory language, proposed Sec.  
303.701(b) would require States to review their performance plans at 
least once every six years and submit any amendments to the Secretary.
    Proposed Sec.  303.701(c)(1) would require, consistent with section 
616(b) of the Act, that each State collect valid and reliable 
information on all the indicators in the performance plan to include in 
the State's annual report to the Secretary. Proposed Sec.  
303.701(c)(2) would clarify that States may use, if the Secretary 
permits it for a particular indicator, the option to collect data 
through State monitoring or sampling. Proposed Sec.  303.701(c)(2) 
would further clarify that, if the State collects data for a particular 
indicator through State monitoring or sampling, the State must collect 
and report data on those indicators for each EIS program at least once 
during the six-year period of the State performance plan. The use of 
monitoring or sampling data, if valid and reliable, can be an effective 
means of data collection, reducing burden on State lead agencies, while 
providing meaningful information on the performance of EIS programs. 
Proposed Sec.  303.702(b)(1)(ii) also would align with 34 CFR 
300.602(b)(1)(ii) of the Part B regulations (71 FR 46801).
    Proposed Sec.  303.701(c)(3) would also incorporate the statutory 
requirements from section 616(b)(2)(B)(ii) of the Act regarding data 
collection and specify that nothing in the Act or the regulations 
authorizes the development of a nationwide database of personally 
identifiable information on individuals involved in studies or other 
data collections.
    Proposed Sec.  303.702(a) would reflect the statutory language in 
section 616(b)(2)(C) of the Act requiring States to use the targets 
established in their performance plans and the priority areas in 
proposed Sec.  303.700(d) to analyze the performance of each EIS 
program in the State. Under proposed Sec.  303.702(b), which would 
largely incorporate the language in section 616(b)(2)(C) of the Act, 
States would be required to report annually to the public on the 
performance of each EIS program in the State on the targets in the 
State performance plan and make the State performance plan available to 
the public. Notes 253 through 258 of the Conf. Rpt. explain that the 
expectation is that the State performance plans, indicators and targets 
are to be developed with broad stakeholder input and public 
dissemination. To ensure that EIS program performance reports are 
disseminated in a timely manner, proposed Sec.  303.702(b)(1)(i)(A) 
would require that EIS program performance be reported to the public no 
later than 60 days following the State's submission of its annual 
performance report to the Secretary and would prescribe the minimal 
methods for that public dissemination.
    Proposed Sec.  303.702(b)(1)(i)(B) would include the statutory 
requirements from section 616(b)(2)(C) of the Act that a State make its 
performance plan publicly available. In addition, to ensure that the 
State's annual performance reports and the reports on the performance 
of each EIS program in the State are widely disseminated, proposed 
Sec.  303.702(b)(1)(i)(B) would require that States make these reports 
available through public means, including posting the reports on the 
Web site of the lead agency and distributing them to the media and to 
EIS programs.
    Proposed Sec.  303.702(b)(1)(ii) would add that, if the State, in 
meeting the requirements of proposed Sec.  303.702(b)(1)(i), collects 
performance data through State monitoring or sampling, the State must 
include the most recently available performance data on each EIS 
program and the date the data were obtained in its report on the 
performance of EIS programs.
    Proposed Sec.  303.702(b)(2) would reflect the language in section 
616(b)(2)(C) of the Act requiring each State to report annually to the 
Secretary on the performance of the State under its performance plan. 
Under proposed Sec.  303.702(b)(3), however, the State would not be 
required to report to the public or the Secretary any information on 
performance that would disclose personally identifiable information 
about individual children or any data if the available data are 
insufficient to yield statistically reliable information.
    Proposed Sec.  303.703(a) and (b)(1) would reflect new language in 
section 616(d) of the Act requiring the Secretary to review annually 
the State's annual performance report and, based on information in the 
annual performance report, or information obtained through monitoring 
visits or other public information, determine if the State: (1) meets 
the requirements and purposes of Part C of the Act, (2) needs 
assistance in implementing the requirements of Part C of the Act, (3) 
needs intervention in implementing the requirements of Part C of the 
Act, or (4) needs substantial intervention in implementing the 
requirements of Part C of the Act.
    Proposed Sec.  303.703(b)(2) would reflect the language from 
section

[[Page 26485]]

616(d)(2)(B) of the Act that provides States with notice and an 
opportunity for a hearing for determinations under proposed Sec.  
303.703(b)(1)(iii) and (b)(1)(iv). Proposed Sec.  303.703(b)(2)(ii) 
would clarify that the hearing would consist of an opportunity to meet 
with the Assistant Secretary for the Special Education and 
Rehabilitative Services to demonstrate why the Department should not 
make the determination. We propose this provision to meet the hearing 
requirement because the Department has determined that this type of 
hearing would provide the appropriate amount of process due a State 
prior to one of these determinations. Should specific enforcement 
action subsequently be contemplated, as provided for in section 616(e) 
of the Act, other hearing procedures may be applicable, as provided for 
in proposed Sec. Sec.  303.705, 303.231 through 303.236, and in the 
General Education Provisions Act as amended, 20 U.S.C. 1221 et seq. 
(GEPA).
    Proposed Sec.  303.704, regarding enforcement, would reflect new 
requirements in section 616(e) of the Act that set forth the various 
actions the Secretary may take with respect to each State's level of 
compliance as determined by the Secretary's review of the State's 
annual performance report under proposed Sec.  303.703. Thus, proposed 
Sec.  303.704 would identify, consistent with section 616(e) of the 
Act, the specific enforcement actions that the Secretary may take if 
the Secretary determines that a State needs assistance, needs 
intervention, or needs substantial intervention.
    For example, if it is determined that a State needs substantial 
intervention, the Secretary would take one or more of the actions 
described in proposed Sec.  303.704(c), including recovering funds 
under section 452 of GEPA, withholding in whole or in part any further 
payments to the State under Part C of the Act, referring the case to 
the Office of Inspector General at the Department, or referring the 
matter for appropriate enforcement action, which may include referral 
to the Department of Justice.
    Under proposed Sec.  303.704(d), the Secretary would be required to 
report to appropriate congressional committees within 30 days of taking 
an enforcement action against a State under proposed Sec.  303.704, 
including in the report a description of the specific action that was 
taken, and the reasons why it was taken.
    Proposed Sec.  303.705(a) would reflect the language in section 
616(e)(4)(A) of the Act regarding reasonable notice and the opportunity 
for a hearing prior to withholding of any Part C funds.
    Proposed Sec.  303.705(b) would reflect new language from section 
616(e)(4)(B) of the Act that, pending the outcome of any hearing to 
withhold payments, the Secretary may do one or both of the following: 
Suspend payments to a recipient or suspend the recipient's authority to 
obligate funds under Part C of the Act provided that the recipient has 
been given reasonable notice and an opportunity to show cause why 
future payments or the authority to obligate Part C funds should not be 
suspended. Proposed Sec.  303.705(c) regarding the nature of 
withholding actions would reflect the language in section 616(e)(6) of 
the Act.
    Proposed Sec.  303.706 reflects the language in section 616(e)(7) 
of the Act. Whenever a State receives notice that the Secretary is 
proposing to take or is taking an enforcement action pursuant to 
proposed Sec.  303.704, the State must, by means of a public notice, 
take such measures as may be necessary to bring the pendency of an 
action pursuant to section 616(e) of the Act and proposed Sec.  303.704 
to the attention of the public within the State, including posting such 
notice on the Web site of the lead agency and distributing the notice 
to the media and to the EIS programs.
    Consistent with the statutory provisions in section 616(g) of the 
Act, proposed Sec.  303.707 would provide that nothing in subpart H 
restricts the Secretary from utilizing any authority under GEPA and 
EDGAR to monitor and enforce the requirements under Part C of the Act. 
Proposed Sec.  303.708 would be added to clarify that States have the 
flexibility to use other mechanisms to bring about compliance, just as 
section 616(g) of the Act and proposed Sec.  303.707 recognize that the 
Department needs the flexibility to use the authority in GEPA and EDGAR 
to monitor and enforce the Act in addition to the enforcement program 
described in section 616(e) of the Act.
Reports--Program Information
    Proposed Sec. Sec.  303.720 through 303.724 regarding data 
collection by States would incorporate the applicable statutory 
requirements under section 618 of the Act, which apply to Part C 
through section 642 of the Act. These statutory requirements were 
substantively unchanged by the 2004 amendments to the Act except for 
the requirement that data reported under Part C of the Act be 
disaggregated by gender and the requirement that States electing under 
proposed Sec.  303.211 to make early intervention services available to 
children ages three and older, report data on those children.
    Proposed Sec.  303.720(a) would reflect the statutory provisions in 
section 618(a) of the Act that require each State to report data each 
year to the Secretary and to the public. Proposed Sec.  303.720(b) 
would state that the data be submitted in the manner prescribed by the 
Secretary.
    Proposed Sec.  303.721(a) would specify that lead agencies must 
count the number of infants and toddlers with disabilities receiving 
early intervention services on any date between October 1 and December 
1 of each year and include in this count any children reported to them 
by tribes, tribal organization, and consortia under proposed Sec.  
303.731(e)(1)). Current practices require the infant and toddler count 
to occur on December 1. The proposed provision would broaden the window 
for States and would be consistent with the Part B regulations in 34 
CFR 300.641(a) (71 FR 46804). Proposed Sec.  303.721(a)(1), (2), and 
(3) would reflect data collection and reporting requirements described 
in section 618(a) of the Act.
    Proposed Sec.  303.721(b) would reflect the statutory provisions in 
section 635(c)(3) of the Act. These provisions require that if a State 
adopts the option under section 635(c) of the Act and proposed Sec.  
303.211 to make early intervention services available to children ages 
three through five, the State must report data on the number and 
percentage of children with disabilities who are eligible to receive 
services under section 619 of the Act but whose parents choose to 
continue to receive early intervention services.
    Proposed Sec.  303.721(c) would reflect the statutory provisions in 
section 618(a)(1)(F) and (H) of the Act. This provision would require 
the State to report the number of due process complaints filed under 
section 615 of the Act, the number of hearings conducted and the number 
of mediations held and the number of settlement agreements reached 
through such mediations.
    Proposed Sec.  303.722(a) would reflect the new provisions in 
section 618(b)(1) of the Act requiring each State to report data in a 
manner that does not result in disclosure of personally identifiable 
information.
    Proposed Sec.  303.722(b) regarding sampling, reflects the language 
in section 618(b)(2) of the Act.
    Proposed Sec.  303.723 regarding certification of the annual report 
of infants and toddlers served, would require that an authorized 
official of the lead agency certify the accuracy of the data being 
submitted. This requirement is to ensure that data submitted to the

[[Page 26486]]

Secretary are an accurate representation of the infants and toddlers 
with disabilities in the State.
    Proposed Sec.  303.724, regarding other responsibilities of the 
lead agency related to the annual report of infants and toddlers 
served, would provide more detail to the provision in current Sec.  
303.540(a)(1)(i) that requires the lead agency to include a process for 
collecting data from various agencies and service providers. To ensure 
the collection of accurate data in a timely manner, proposed Sec.  
303.724 would provide specific steps and procedures for lead agencies 
to follow in collecting the data to be reported to the Secretary.
Allocation of Funds
    Proposed Sec. Sec.  303.730 through 303.734 would incorporate the 
provisions in section 643 of the Act regarding allocation of funds 
under Part C of the Act to States, outlying areas and the Secretary of 
the Interior. Proposed Sec.  303.730 regarding reservation of funds for 
the outlying areas would remain substantively unchanged from current 
Sec.  303.204 except for minor changes to the language in order to 
conform to section 643(a) of the Act.
    Proposed Sec.  303.731 would implement section 643(b)(1) of the Act 
regarding allocation of funds under Part C of the Act to the Secretary 
of the Interior. Proposed Sec.  303.731(a) would retain the provisions 
regarding payment and distribution of funds to tribes and tribal 
organizations in current Sec. Sec.  303.180(a), 303.180(b) and 303.203.
    Proposed Sec.  303.731(b) would be added to incorporate the 
provision in section 643(b)(2) of the Act requiring the Secretary of 
the Interior to distribute amounts to each tribe, tribal organization, 
or consortium based on the number of infants and toddlers residing on 
the reservation divided by the total of those children served by all 
tribes, tribal organizations, or consortia.
    Proposed Sec.  303.731(c) would be added to incorporate the 
provision in section 643(b)(3) of the Act, which clarifies that, in 
order to receive payment under this section, the tribe, tribal 
organization, or consortium must submit to the Secretary of the 
Interior information to determine the amounts to be distributed.
    Proposed Sec.  303.731(d) would be added to incorporate section 
643(b)(4) of the Act and would state the required and permissible uses 
of funds under this section.
    Proposed Sec.  303.731(e)(1) and (2) would be added to incorporate 
the provision in section 643(b)(5) of the Act regarding the requirement 
to submit a biennial report to the Secretary of the Interior in order 
to be eligible to receive funds. Proposed Sec.  303.731(e)(1) would 
require that to be eligible to receive a payment under proposed Sec.  
303.731(b), a tribe, tribal organization, or consortium must make a 
biennial report to the Secretary of the Interior of activities 
undertaken under proposed Sec.  303.731, including the number of 
contracts and cooperative agreements entered into, the number of 
infants and toddlers contacted and receiving services for each year, 
and the estimated number of infants and toddlers needing services 
during the two years following the year in which the report is made. 
This report would require tribes, tribal organization and consortia to 
include an assurance that the tribe, tribal organization, or consortium 
has provided the lead agency in the State child find information 
(including the names and dates of birth and parent contact information) 
for infants or toddlers with disabilities who are included in the 
report in order to meet the child find coordination and child count 
requirements in sections 618 and 643 of the Act.
    Proposed Sec.  303.731(e)(2) would require the Secretary of the 
Interior to provide the Secretary with a summary of that information on 
a biennial basis, including confirmation that each tribe, tribal 
organization, or consortium has provided to it the assurance required 
under proposed Sec.  303.731(e)(1), along with such other information 
required of the Secretary of the Interior under Part B or C of the Act. 
In addition proposed Sec.  303.731(e)(2) would clarify, consistent with 
section 643(b)(5) of the Act, that the Secretary may require any 
additional information from the Secretary of the Interior.
    Proposed Sec.  303.731(e)(3), regarding reports to the Secretary on 
payments disbursed under this section, would retain the language in 
current Sec.  303.180(c).
    Proposed Sec.  303.731(f) would mirror section 643(b)(6) of the 
Act, and would clarify that Part C funds may not be used by the 
Secretary of the Interior for administrative purposes or the provision 
of technical assistance.
    Proposed Sec.  303.732, regarding the allotment and distribution of 
funds to the States under this part, generally would retain the 
language in current Sec. Sec.  303.200 and 303.202 but would also 
incorporate additional provisions from section 643(c) of the Act, and 
track the organization of the Act. Proposed Sec.  303.732(a) would be 
the same as current Sec.  303.200(a). Proposed Sec.  303.732(b) also 
would retain the minimum allocation provision in current Sec.  303.202, 
but would revise current language to clarify that no State may receive 
less than 0.5 percent of the aggregate amount available under this 
section or $500,000, whichever is greater.
    Proposed Sec.  303.732(c) would incorporate provisions in section 
643(c)(3)(A) and (B) of the Act regarding the ratable reduction of 
allotments to States. Proposed Sec.  303.732(d) would retain the 
definitions of aggregate amount, infants and toddlers, and State in 
current Sec.  303.200(b).
    Proposed Sec.  303.733, regarding reallotment of funds if a State 
elects not to receive its allotment reflects the provisions in section 
643(d) of the Act and would retain the provisions in current Sec.  
303.201.
    Proposed Sec.  303.734 would reflect new statutory provisions from 
section 643(e) of the Act regarding the allocation of Part C funds for 
incentive grants for States electing to implement the provisions of 
section 635(c) of the Act and proposed Sec.  303.211 to make Part C 
services available to children ages three through five. This clarifies 
that when the appropriations under Part C of the Act exceed 
$460,000,000, fifteen percent of the amount that exceeds $460,000,000 
must be available for allocation under section 643(e) of the Act and 
proposed Sec.  303.734 for States that elect to serve children under 
section 635(c) of the Act and proposed Sec.  303.211.

Executive Order 12866

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action. The potential costs associated 
with the proposed regulations are those resulting from statutory 
requirements and those we have determined as necessary for 
administering this program effectively and efficiently. In assessing 
the potential costs and benefits--both quantitative and qualitative--of 
this regulatory action, we have determined that the benefits would 
justify the costs.
    We have also determined that this regulatory action would not 
unduly interfere with State, local, private, and tribal governments in 
the exercise of their governmental functions.
    Following is an analysis of the costs and benefits of the most 
significant changes in the regulations implementing Part C of the Act 
governing the Early Intervention Program for Infants and Toddlers with 
Disabilities. In conducting this analysis, the Department examined the 
extent to which changes made by these proposed regulations add to, or 
reduce the costs

[[Page 26487]]

for, State lead agencies and others as compared to the costs of 
implementing the Part C program under the current regulations. 
Variation in practice from State to State makes it difficult to predict 
the effect of these changes. However, based on the following analysis, 
the Secretary has concluded that the changes reflected in the proposed 
regulations will not impose significant net costs on the States.

Section 303.211--State Option To Make Part C Services Available to 
Children Ages Three and Older

    Proposed Sec.  303.211, which would incorporate the provisions of 
section 635(c) of the Act, would allow States to continue to serve 
children with disabilities ages 3 through 5 under Part C of the Act if 
those children previously received services under Part C of the Act and 
would otherwise be eligible for services under section 619 of the Act. 
Making these services available under Part C of the Act would be a 
State option, and if the State chooses not to serve children with 
disabilities ages 3 through 5 under Part C of the Act or to discontinue 
offering this option, it would still be required to make services to 
these children available through existing Part B programs.
    If a State elects to exercise the option to serve 3 through 5 year 
olds under Part C of the Act, the lead agency would be responsible for 
the costs of providing the direct Part C services to children whose 
families elect to continue services under Part C. In addition, we 
believe that the State's Part C lead agency could incur some transition 
costs in implementing this option. For example, if the Part C lead 
agency is not the SEA, it would need to develop the capacity to serve 
older children. The intensity and type of services and settings needed 
for 3 through 5 year olds may be different from children ages birth 
through 2 and would need to include an educational component. The Part 
C lead agency may also have to establish relationships with different 
providers or, at the very least, amend agreements or contracts with 
existing providers.
    Educational agencies responsible for providing services under Part 
B of the Act would serve fewer children ages 3 through 5 if the State 
elects to provide services under Part C to children ages 3 through 5, 
and families elect to continue services under Part C of the Act. A 
reduction in the number of children to be served under Part B of the 
Act would result in both administrative and direct service cost savings 
for the educational agencies responsible for serving these children. 
However, the State would still be required to maintain its Section 619 
preschool system to serve children with disabilities who are 3 through 
5 years old. The Part C extension only applies to children who are 
already receiving services under Part C of the Act and wish to 
continue, not to children newly entering the system. In addition, 
parents can choose between Part C or B services.
    We have very little information on the number of States that may 
choose to exercise the voluntary Part C option and the additional costs 
of implementing this option for States that elect to do so. We are 
requesting comments from the public on these costs and will address 
this issue in the final regulations. Specifically, we are interested in 
information related to the following: Initial costs related to 
establishing or enhancing the infrastructure in the Part C lead 
agencies necessary to serve children ages 3 through 5; differences in 
the costs of providing the services required by IDEA to children with 
disabilities ages 3 through 5 under Part C of the Act versus Part B of 
the Act; the benefits to parents and children of receiving continued 
services under Part C of the Act rather than under Part B of the Act; 
the extent to which States expect families to choose continuation of 
Part C services beyond age 2; the extent to which States may choose to 
exercise the option of serving children with disabilities ages 3 
through 5 under Part C of the Act; and possible sources of funding for 
providing Part C services to these children.

Sections 303.300 Through 303.303--Public Awareness, Comprehensive Child 
Find System, Referrals, and Screening

    Proposed Sec. Sec.  303.300 through 303.303 would combine the child 
find and public awareness requirements from section 635(a)(5) and 
(a)(6) of the Act and incorporate the Act's increased emphasis on 
specific subpopulations of infants and toddlers with disabilities who 
may potentially be eligible for and need early intervention services 
under Part C of the Act. Proposed Sec.  303.301 would require States, 
consistent with the Act, to identify, locate, and evaluate all eligible 
infants and toddlers with disabilities, including children who are 
covered by CAPTA, homeless, in foster care, or wards of the State. The 
proposed regulations would require the State to have referral 
procedures to be used by specified primary referral sources and would 
require such procedures to provide for the referral of certain children 
covered by CAPTA. This change is consistent with the CAPTA provision 
that became effective in June 2003, which requires that States 
receiving CAPTA funds adopt policies providing for the referral to the 
Part C program of children under the age of 3 who are involved in a 
substantiated case of child abuse or neglect.
    The proposed regulations would also add a requirement for a public 
awareness program about the availability of early intervention services 
and specifically require the dissemination of such information to 
parents with premature infants or infants with other physical risk 
factors associated with learning or developmental complications.
    Since States have been required under the Act to conduct child find 
activities to identify all infants and toddlers with disabilities since 
the program began in 1989, and the CAPTA requirements have been in 
place since June 2003, we are not estimating any increase in costs as a 
result of these changes. Part C lead agencies should already have the 
infrastructure needed to meet all of the IDEA child find requirements, 
including those added relating to children covered by CAPTA and those 
who are homeless, in foster care, or wards of the State.
    In addition, proposed Sec.  303.303 would allow the lead agency to 
use screening to determine whether a child is suspected of having a 
disability. The use of screening as a vehicle to identify children 
potentially eligible for Part C services may reduce the number of 
evaluations and assessments that would otherwise need to be conducted 
and, thus, reduce potential evaluation and assessment costs for the 
State. Proposed Sec.  303.303 also would allow State lead agencies to 
determine how primary referral sources would work with the lead 
agencies to administer screenings.

Sections 303.320(e)(1) and 303.342(a)--Timelines

    Current Sec. Sec.  303.321(e)(2), 303.322(e)(1), and 303.342(a) 
require that a child's evaluation, assessment, and initial IFSP meeting 
occur within 45 days from the date the public agency receives the 
referral. Proposed Sec.  303.320(e)(1) would retain the 45-day timeline 
requirement, but the timeline would not begin until the public agency 
has obtained parental consent for the evaluation, thereby increasing 
the amount of time available to the agency for completing these 
actions.
    Allowing the agency additional time to complete a child's 
evaluation, assessment, and initial IFSP meeting could reduce costs 
associated with trying to meet the 45-day deadline, such as paying 
overtime to staff, while improving the ability of States to manage the 
workflow of their service coordinators. In addition, lack of compliance 
with the 45-day timeline in

[[Page 26488]]

current Sec. Sec.  303.321(e)(2), 303.322(e)(1), and 303.342(a) 
resulted in nine States having either special conditions or compliance 
agreements attached to their Part C grants during fiscal year 2006. To 
the extent that any of the findings of noncompliance with the 45-day 
timeline requirement involved cases where the parents did not provide 
consent or provide consent in a timely manner, the change would assist 
States to avoid future findings of noncompliance with the IDEA. This 
change could also reduce the number of complaints related to missed 
deadlines; however, any savings associated with the resolution of due 
process complaints are likely to be negligible since there are few 
requests for due process hearings filed under Part C--only 22 in fiscal 
year 2003 and 186 in fiscal year 2004'and a missed deadline is not 
likely to be the sole or primary basis for a complaint.
    Since the 45-day deadline would no longer encompass the period 
between the referral and obtaining parental consent for the initial 
evaluation, the agencies could take more time in contacting parents for 
their consent to evaluate the child, particularly in cases where the 
parents are not aware of the initial referral, and, thereby, delay the 
evaluation process. While undue delays could be harmful to the child, 
we have no basis for assuming that agencies will take more time than is 
needed to contact the parents for consent, based on our experience 
under the Part B regulations. In most cases, parents will be aware of 
the referral and will readily provide their consent if they want the 
child to be evaluated.

Section 303.344(e)--Content of the IFSP

    The current regulations in Sec.  303.344(e) require service 
coordinators to identify on the IFSP those medical and other services 
that the child needs, but are not required by Part C of the Act, and 
the funding sources to be used in paying for those services, or the 
steps that will be taken to secure those services through public or 
private sources. Proposed Sec.  303.344(e)(2) would retain the 
requirements for service coordinators to identify on the IFSP medical 
and other services that the child needs, but are not required by Part C 
of the Act, and the steps that will be taken to secure those services 
through public or private sources. However, service coordinators would 
no longer be required to identify and coordinate funding sources for 
these services.
    Eliminating the requirement that IFSPs identify the funding sources 
for services not required by Part C of the Act will reduce the burden 
on service coordinators and will save IFSP teams, including the service 
coordinator, time during meetings and time preparing the IFSP. The 
requirement to identify funding for other services is overly 
burdensome, given that there may be many other services that infants 
and toddlers with disabilities and their families receive (e.g., foster 
care, services through individualized safe plans of care, and medical 
and other services), and service coordinators have limited knowledge 
about, and ability to coordinate funding for, these services.
    While we do not have any data on the number of hours service 
coordinators spend on this activity, we do know that many children 
served under Part C of the Act have significant health care needs and 
that it could take several hours or more to identify and coordinate 
funding for medical services needed by these children. For purposes of 
this analysis, we assume that service coordinators spend, on average, a 
minimum of two hours per year per child identifying and coordinating 
funding for services not required by IDEA and describing it in the 
IFSP. Based on an analysis of salaries for early intervention service 
coordinators employed by public and private agencies and organizations 
for 7 States \1\ and Bureau of Labor Statistics data for fringe 
benefits costs for health care and social assistance personnel,\2\ we 
estimate average compensation for service coordinators to be 
approximately $22 per hour. Pursuant to section 637(b)(4) of the Act, 
each State submits an annual count to the Department of the number of 
children with disabilities ages birth through 2 served in the State. An 
analysis of trends in the annual count and in census data for this age 
range indicates that the States will serve approximately 313,100 
children under Part C of the Act in fiscal year 2007. Based on these 
estimates, we expect savings of approximately $14 million from this 
change.
---------------------------------------------------------------------------

    \1\ Estimate based on an analysis of average salaries for early 
intervention service coordinators using information from State job 
postings and an analysis of average early intervention specialist 
salaries conducted by the PayScale Corporation that looked at median 
salaries for early interventionists employed by non-profit 
organizations, school districts, private companies, State and local 
governments, and colleges and universities.
    \2\ Table 4, State and local government, by occupational and 
industry group, last modified March 29, 2007, http://www.bls.gov/news.release/ecec.t04.htm.
---------------------------------------------------------------------------

Section 303.520(a)--Policies Related to Use of Public Insurance and 
Benefits for Payment for Services

    This proposed section would clarify when a State may access funds 
from a parent's public insurance or public benefits program. Under 
proposed Sec.  303.520(a), States would be able to access public 
insurance or benefits to pay for Part C services--(1) If the parent or 
child is already enrolled in a public insurance or benefits program and 
the parent provides consent as defined under proposed Sec.  303.7 and 
provided for under proposed Sec.  303.414; (2) if the child is in 
foster care and automatically eligible under the State's Medicaid plan; 
or (3) if the parent agrees to enroll in a public insurance or benefits 
program and consents to allow the State to use the public insurance or 
benefit. Proposed Sec.  303.414 would require consent prior to 
disclosure of personally identifiable information, which consent 
requirement is reflected in current Sec. Sec.  303.402 and 303.460.
    The National Early Intervention Longitudinal Study (NEILS) 
indicates that approximately 44 percent of the families participating 
in the Part C program participate in a government-assisted health 
insurance or public benefits program such as Medicaid or the State 
Children's Health Insurance Program (SCHIP) (http://www.sri.com/neils). 
In addition, the FY 2002 Part C IDEA Annual Performance Reports (APRs) 
required to be submitted by States to the Department on March 31, 2004 
indicated that Federal Medicaid funds represent an average of 23.7 
percent of the State's overall Part C early intervention program budget 
for the 27 States for which Medicaid dollars were reported on a 
disaggregated basis. Given this information, we believe that it is 
important for the regulations to be clear about when and how States may 
access a parent's public insurance or benefits.
    The current regulations do not specify the circumstances under 
which a State may access a parent's public insurance or benefits to 
obtain reimbursement for Part C services. Some States automatically 
access reimbursements from public insurance or benefit programs if the 
parents are enrolled in these programs. Proposed Sec.  303.520(a)(1)(i) 
would clarify that States may use a parent's public insurance or 
benefits, if the parent is already enrolled, but only when the parent 
provides consent. The Department believes that most parents will 
provide the requisite consent if requested. There may be some costs to 
obtaining consent; however, they are likely to be minimal because the

[[Page 26489]]

requests are likely to be made during the already existing intake 
process, at which time the parents could be asked to sign any consent 
forms needed by the State. There would also be some loss of revenue to 
States if parents enrolled in public insurance or benefit programs 
refuse to provide consent. In this regard, the Department believes that 
any increased cost to States that may result from this requirement is 
outweighed by the benefits of protecting the privacy and autonomy of 
the family and minimizing the potential negative impact on a family's 
credit rating, immigration status, insurability, and status under other 
programs.
    Proposed Sec.  303.520(a)(1)(ii) would provide that a State may use 
the public benefits available to a child served under Part C if the 
child is in foster care and eligible to participate in the public 
insurance or benefits program. Children in foster care may be 
automatically eligible for Medicaid under the State's Medicaid plan and 
section 472 of the Social Security Act. This proposed provision, which 
would clarify that States would not need to obtain parental consent 
prior to accessing the public insurance or benefits available to these 
children, would facilitate State access to public insurance or benefits 
for these children and would eliminate some costs associated with 
obtaining consent for the release of personally identifiable 
information.
    Proposed Sec.  303.520(a)(1)(iii) covers circumstances where the 
parent is not currently enrolled in a public insurance or benefits 
program. The proposed provision would provide that the State would be 
required to obtain parent consent to enroll, and, therefore, would not 
be able to require a parent to enroll in a public insurance or benefits 
program as a requirement of receiving services. We expect this 
clarification to have a very limited effect because very few States 
require eligible families to apply for public insurance or benefits in 
order to receive Part C services. Data from a survey of the States 
conducted by the IDEA Infants and Toddlers Coordinators Association 
(ITCA) indicate that only two of the 21 States that responded reported 
that they require families to apply for existing third party resources 
such as Medicaid, SCHIP, and the Children's Special Health Care Needs 
program. (http://www.ideainfanttoddler.org). A review of applications 
submitted by States indicates that fewer than 5 States currently have 
systems of payments on file with the Department that have express 
policies requiring parents to enroll in public insurance or benefits as 
a condition of receiving services under Part C of the Act and/or permit 
the Part C lead agency to expressly access a parent's public insurance 
or benefits without parental consent.
    Moreover, we believe that most parents will agree to enroll 
voluntarily since it is generally to the family's advantage to obtain 
health insurance for all family members.
    To the extent that there may be an increased cost to States that 
currently require parents to enroll in public insurance or benefits 
programs due to a potential loss of revenue, this potential cost is 
outweighed by the benefits of protecting the privacy and autonomy of 
the family (including minimizing any potential negative impact that use 
of public insurance or benefits may have on the family). Enrollment in 
public insurance or benefits programs may negatively affect a parent's 
immigration status and ability to borrow, or have other legal and 
financial repercussions. A parent's decision to enroll in public 
insurance or benefit programs also may be affected by religious 
concerns, the perceived stigma of public insurance or benefits, and 
considerations related to family finances.
    Since we do not have data on the number or percentage of eligible 
families participating in the Part C program that refuse to enroll in 
public insurance or benefits programs or the participation rates in 
States that require eligible families to enroll in public insurance or 
benefits programs, we invite commenters to provide this information. We 
request that commenters identify any relevant research or evidence, if 
available.

Section 303.520(b)--Policies Related to Use of Private Insurance for 
Payment for Services

    Under proposed Sec.  303.520(b), the State would not be able to 
access a parent's private insurance to pay for Part C services unless 
the parent provides informed consent to do so. Proposed Sec.  
303.520(b)(2) would provide that the parental consent requirement does 
not apply if the State has enacted a statute regarding private health 
insurance coverage for early intervention services under Part C of the 
Act that provides specific protections. These protections must include 
ensuring that the use of health insurance to pay for Part C services 
cannot: (1) Count towards the lifetime coverage caps for the child or 
family, (2) negatively impact the availability of health insurance for 
the child and family, (3) result in the discontinuation of health 
insurance coverage, or (4) be the basis for increasing the child's or 
family's premiums. We are aware of a few States that have enacted such 
statutes. These few States are the only States that use private 
insurance such that it accounts for ten percent or more of their 
State's Part C budgets. By adopting specific State statutes that 
provide parental protections to the parent, these States would be 
exempt from the proposed parent consent requirements.
    Under current regulations, Part C services must be provided free of 
charge unless the State has established a system of payments. In 
addition, under current Sec. Sec.  303.402 and 303.460, the lead agency 
must obtain consent prior to disclosing personally identifiable 
information. Because the proposed regulations would not represent a 
significant change from current requirements relating to consent, the 
proposed changes should not result in increased costs for a State. In 
addition, we expect the proposed provision in Sec.  303.520(b)(2) to 
have a limited effect because private insurance funds represent a very 
limited proportion of States' Part C budgets. Twenty-six States 
reported in either their fiscal year 2001 or 2002 Part C APRs that they 
receive funding from private insurance or family fees. For 21 of the 26 
jurisdictions reporting income from private insurance or family fees, 
which could be paid, with parental consent, by private insurance, the 
average percentage of the State's overall Part C budget that 
represented funds from private insurance or family fees was 4.9 
percent.
    Any loss of revenue to States from not being able to access private 
insurance without the consent of the parents would be offset by the 
major consequences that use of private insurance might have for 
families, including jeopardizing eligibility for private insurance 
policies and lifetime caps on benefits or causing increases in premiums 
or discontinuation of insurance. In addition, the proposed regulations 
provide flexibility to both States and parents. States have the 
flexibility either to establish a system of payments under proposed 
Sec.  303.521 to recoup the costs of providing early intervention 
services or to obtain parental consent for use of private insurance. 
Parents have the option to allow the State to use their private 
insurance or to pay the fees established by the State according to a 
system of payments established under Sec.  303.521.

[[Page 26490]]

Section 303.521(c)--States With FAPE Mandates or That Use Part B Funds 
To Provide Services to Infants and Toddlers With Disabilities

    This proposed provision would incorporate longstanding policy and 
requirements under Part B of the Act that, if a State is required under 
State law to provide FAPE for, or uses Part B funds under section 611 
of the Act to pay for, services for infants and toddlers with 
disabilities or a subset of children with disabilities under the age of 
three, the State must ensure that those services that constitute FAPE 
are provided at no cost. For example, if a State has established a 
system of payments, but has a law extending FAPE down to birth for a 
particular disability group such as individuals who are blind, the 
State cannot charge for any services that are part of FAPE for that 
child or family. Because the proposed change clarifies existing 
requirements and practice, this change is not expected to result in any 
change in costs for State agencies or families.

2. Clarity of the Regulations

    Executive Order 12866 and the Presidential Memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (use of 
headings, paragraphing, etc.) aid or reduce their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec. '' and a number heading; for example, 
Sec.  303.209 Transition.)
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    Send any comments that concern how the Department could make these 
proposed regulations easier to understand to the person listed in the 
ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities. These proposed regulations would govern only States in their 
implementation of the Part C early intervention program and States are 
not considered small entities under the Regulatory Flexibility Act of 
1980, as amended. In addition, because Part C does not authorize 
subgrants no small entities would be directly affected by these 
proposed regulations. The small entities that would be indirectly 
affected are local entities that enter into contracts with the State to 
provide Part C early intervention services. However, the proposed 
regulations would not have a significant economic impact on these small 
entities because the proposed regulations would not impose excessive 
regulatory burdens or require unnecessary Federal supervision. The 
proposed regulations would impose minimal requirements, concerning the 
potential referral of additional children to the Part C program as well 
as the issue of use of insurance and systems of payments to ensure the 
proper expenditure of program funds.

Paperwork Reduction Act of 1995

    These proposed regulations contain information collection 
provisions that are subject to review by OMB under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3520). A description of these 
five information collections is given below with an estimate of the 
annual recordkeeping burden. Included in the estimate is the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing each 
collection of information.
    The proposed regulations include five information collection 
requirements associated with the following provisions: Proposed 
Sec. Sec.  303.21(c)(2), 303.100 through 303.126, 303.200 through 
303.227, 303.300, 303.320(e)(2), 303.342(e), 303.431 through 303.449, 
303.520(a)(3) and 303.520(b)(1)(iii), 303.701 and 303.702 and 303.720 
through 303.724. Under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), the Department has submitted a copy of these sections to OMB 
for its review. The Department recognizes that information collection 
requests requiring aggregate data on race and ethnicity do not reflect 
the 1997 OMB Standards for Data on Race and Ethnicity. The Department 
anticipates providing guidance to implement those standards in 
forthcoming collections.
    Interested persons are requested to send comments regarding the 
information collections to the Department of Education within 60 days 
after publication of these proposed regulations. This comment period 
does not affect the deadline for public comments associated with these 
proposed regulations.
    Collection of Information: IDEA Part C State Performance Plan (SPP) 
and Annual Performance Report (APR), (Information Collection 1820-0578) 
for proposed Sec. Sec.  303.124 and 303.701 and 303.702.
    Each statewide system must include a system for compiling and 
timely reporting accurate data. Each State must have in place, a 
performance plan that evaluates the State's efforts to implement the 
requirements and purposes of Part C of the Act and describes how the 
State will improve implementation. Each State also must report annually 
to the public on the performance of each EIS provider in the State on 
the targets in the State's performance plan, and the State must report 
annually to the Secretary on the performance of the State under the 
State's performance plan.
    Under 44 CFR 1320.11, we requested that OMB review information 
collection 1820-0578. The 60-day Federal Register notice was published 
on August 10, 2006, the 30-day Federal Register notice was published on 
October 18, 2006, and the information collection was approved by OMB on 
December 12, 2006, with the understanding that the Department would 
submit this collection for OMB review in conjunction with this NPRM.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to be 150 hours annually for each of 56 
respondents. The total annual burden to States for this information 
collection is estimated to be 8,400 hours. Of the total 150 hours, it 
is estimated that 80 hours will be spent planning the report, 40 hours 
will be spent writing the report, and 30 hours will be spent typing and 
compiling the report. The Council reviews, provides comments on, and 
certifies the lead agency's report, and either agrees or disagrees with 
the report. The estimated annual burden for the Council is 2 hours to 
review, certify, and add comments to each report, as needed.
    Collection of information: Annual State Application under Part C of 
the Individuals with Disabilities Education Act, as amended. 
(Information Collection 1820-0550) Sec. Sec.  303.100 through 303.126 
and Sec. Sec.  303.200 through 303.227. Under proposed Sec.  303.101

[[Page 26491]]

States would be required to submit a statement that they have submitted 
the new and/or revised State policies, procedures, methods, and 
descriptions that meet all requirements found under Part C of the Act. 
Information Collection 1820-0550 has been revised to reflect these 
proposed regulations.
    Under 44 CFR 1320.11, we requested that OMB review Information 
Collection 1820-0550. The 60-day Federal Register notice was published 
on August 10, 2006, the 30-day Federal Register notice was published on 
October 18, 2006, and the information collection was approved by OMB on 
December 12, 2006, with the understanding that the Department would 
submit this collection for OMB review in conjunction with this NPRM.
    There are 56 respondents who are required to submit the Part C 
Annual State Application if they seek to receive Federal Part C funds. 
The annual data burden for this collection is estimated to average 10 
hours per respondent for 56 respondents. Thus, the annual total burden 
estimate for this information collection is 560 hours.
    Collection of Information: Report of Infants and Toddlers Receiving 
Early Intervention Services in Accordance with Part C; Report of 
Program Settings Where Early Intervention Services are Provided to 
Infants and Toddlers with Disabilities and Their Families in Accordance 
with Part C of the Act: Report on Infants and Toddlers Exiting Part C 
(Information Collection 1820-0557) was approved by OMB on November 21, 
2006 for proposed Sec. Sec.  303.124 and 303.720 through 303.724. Each 
lead agency that receives assistance under Part C of the Act must 
provide data each year to the Secretary and the public on infants and 
toddlers with disabilities. There are 56 respondents who are required 
to provide Part C data on infants and toddlers with disabilities. There 
are three Tables found in this collection. The estimated burden for 
this collection is 101 hours per State agency or 5,656 hours total.
    Collection of Information: (Information Collection 1820-0678) 
Report of Dispute Resolution Under Part C of the Individuals with 
Disabilities Education Act Complaints, Mediations, and Due Process 
Hearings was approved by OMB on November 22, 2006 for proposed 
Sec. Sec.  303.431 through 303.449. Under the Act the Secretary obtains 
data on the dispute resolution processes described in section 615 of 
the Act. Each State must report the number of due process complaints, 
number of hearings conducted and the number of mediations held and the 
number of settlement agreements reached through such mediations. This 
collection will replace Attachment 1 of the Part C Annual Performance 
Report (OMB number 1820-0578) beginning with the data collection for 
the FFY 2005 (2005-2006) period. The data collection form provides 
instructions and information for States for submitting their dispute 
resolution data.
    There are 56 respondents who are required to submit data regarding 
the Part C dispute resolution process. The total burden for all States 
was calculated by multiplying the average number of hours by 56. For 
lead agencies, the estimated average burden is 60 hours per lead 
agency, representing a total burden estimate of 3,360 hours. The 
required number of hours needed to produce these data is expected to 
decline as systems are expanded to collect all required data elements, 
personnel are trained on reporting these data, and edits are 
implemented to automate data cleaning.
    Collection of Information: (Information Collection 1820-NEW) State 
and EIS Recordkeeping, Reporting, and Third Party Disclosure 
Requirements under Part C. Proposed Sec. Sec.  303.21(c)(2), 
303.211(b)(1), 303.224(b), 303.300, 303.320(e)(2), 303.430, 
303.431(b)(2)(i), 303.432 through 303.434, 303.440(b), 303.342(e), 
303.443(c)(3), 303.520(a)(3) and (b)(1)(iii), and 303.724(c) and (e). 
The Act requires State lead agencies and EIS providers to gather, 
maintain, report, and disclose various information and data, but the 
Act does not require this information and data to be submitted to the 
Department. For the purpose of clarity and efficiency, we have combined 
these separate collections of information into one collection that 
reflects all the recordkeeping, reporting, and disclosure activities 
that must be completed by the State or EIS provider, which do not 
require reporting to the Department.
    Each State lead agency must develop a public awareness program. 
State lead agencies are also required to keep records to verify the 
proper disbursement of funds. States must develop procedures to 
document circumstances when it is impossible to complete the evaluation 
and assessment of an infant or toddler with a disability within the 45-
day timeline.
    State lead agencies must also maintain documentation to verify the 
accuracy of their child count data. The proposed regulations also 
require the State lead agency to obtain certification from each EIS 
provider regarding the accuracy of the EIS provider's child count.
    Each State lead agency must have on file a list of mediators and 
the State complaint procedures. If the State lead agency adopts Part B 
due process hearing procedures, then the public agencies must have on 
file a list of hearing officers and low-cost legal services 
information.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to be approximately 112 hours for 56 
respondents (State lead agencies) for a total of 6,272 hours.
    With respect to EIS providers, the proposed regulations require 
that EIS providers make the following disclosures to parents:
    1. Written notification of their rights and responsibilities in 
determining whether their child will continue to receive services under 
Part C of the Act or participate in preschool programs under section 
619 of the Act.
    2. If a State decides to make EI services available to children 
ages three and older, annual notice that contains a description of the 
rights of parents to elect to receive services under Sec.  303.211 or 
services under Part B of the Act and an explanation of the differences 
between these services.
    3. A copy of the system of payments policies that identify 
potential costs that parents may incur while enrolled in a public 
insurance program or private insurance program.
    The proposed regulations also require that EIS providers obtain 
informed consent from parents prior to the provision of EI services.
    Annual reporting and recordkeeping burden for this collection of 
information is estimated to be approximately 17,392 hours. This burden 
was calculated by multiplying the number of children (298,150) served 
by the estimated amount of time to carry out these activities (3 to 4 
minutes).
    Consistent with the discussion above, the following chart describes 
the sections of the proposed regulations involving information 
collections, the information being collected, and the collections the 
Department will submit to the Office of Management and Budget for 
approval and public comment under the Paperwork Reduction Act.

[[Page 26492]]



----------------------------------------------------------------------------------------------------------------
                     Regulatory section                        Collection information          Collection
----------------------------------------------------------------------------------------------------------------
                                             Third Party Disclosure
----------------------------------------------------------------------------------------------------------------
Sec.   303.21(c)(2).........................................  Requires that parents     Information collection
                                                               receive a written         1820-NEW ``State and
                                                               notification of their     EIS Recordkeeping,
                                                               rights and                Reporting, and Third
                                                               responsibilities in       Party Disclosure
                                                               determining whether       Requirements.''
                                                               their child will
                                                               continue to receive
                                                               services under Part C
                                                               or participate in
                                                               preschool programs
                                                               under section 619 of
                                                               the Act.
Sec.   303.211(b)(1)........................................  Requires that if a State  Information collection
                                                               adopts this policy,       1820-NEW ``State and
                                                               parents are provided an   EIS Recordkeeping,
                                                               annual notice that        Reporting, and Third
                                                               contains a description    Party Disclosure
                                                               of the rights of          Requirements.''
                                                               parents to elect
                                                               toreceive services
                                                               pursuant to Sec.
                                                               303.211 or under Part B
                                                               and an explanation of
                                                               the differences between
                                                               services provided under
                                                               Sec.   303.211 and
                                                               under Part B.
Sec.   303.300..............................................  Requires the lead agency  Information collection
                                                               to develop a public       1820-NEW ``State and
                                                               awareness program.        EIS Recordkeeping,
                                                                                         Reporting, and Third
                                                                                         Party Disclosure
                                                                                         Requirements.''
Sec.   303.520(a)(3) and Sec.   303.520(b)(1)(iii)..........  Requires the State to     Information collection
                                                               provide parents with a    1820-NEW ``State and
                                                               copy of the State's       EIS Recordkeeping,
                                                               system of payments        Reporting, and Third
                                                               policies that identify    Party Disclosure
                                                               potential costs that      Requirements.''
                                                               the parent may incur
                                                               while enrolled in a
                                                               public insurance
                                                               program or private
                                                               insurance program.
----------------------------------------------------------------------------------------------------------------
                                           Recordkeeping Requirements
----------------------------------------------------------------------------------------------------------------
Sec.   303.224(b)...........................................  Requires the State to     Information collection
                                                               keep records and afford   1820-NEW ``State and
                                                               access as the Secretary   EIS Recordkeeping,
                                                               may find necessary to     Reporting, and Third
                                                               ensure compliance,        Party Disclosure
                                                               correctness and           Requirements.''
                                                               verification of
                                                               reports, and proper
                                                               disbursement of funds.
Sec.   303.320(e)(2)........................................  Requires the State to     Information collection
                                                               develop procedures to     1820-NEW ``State and
                                                               document circumstances    EIS Recordkeeping,
                                                               when it is impossible     Reporting, and Third
                                                               to complete the           Party Disclosure
                                                               evaluation and            Requirements.''
                                                               assessment within the
                                                               45-day timeline.
Sec.   303.724(e)...........................................  Requires the lead agency  Information collection
                                                               to maintain               1820-NEW ``State and
                                                               documentation to enable   EIS Recordkeeping,
                                                               the State and the         Reporting, and Third
                                                               Secretary to audit the    Party Disclosure
                                                               accuracy of the child     Requirements.''
                                                               count data.
----------------------------------------------------------------------------------------------------------------
                                    Other Information Collection Requirements
----------------------------------------------------------------------------------------------------------------
Sec.   303.342(e)...........................................  Requires that informed    Information collection
                                                               consent be obtained       1820-NEW ``State and
                                                               from the parents prior    EIS Recordkeeping,
                                                               to the provision of EI    Reporting, and Third
                                                               services, as described    Party Disclosure
                                                               in the IFSP.              Requirements.''
Sec.   303.724(c)...........................................  Requires the lead agency  Information collection
                                                               to obtain certification   1820-NEW ``State and
                                                               from each EIS provider    EIS Recordkeeping,
                                                               that is unduplicated      Reporting, and Third
                                                               and accurate regarding    Party Disclosure
                                                               their count of children   Requirements.''
                                                               served.
Sec.   303.430..............................................  Requires the State to     Information collection
                                                               develop written           1820-NEW ``State and
                                                               procedures for the        EIS Recordkeeping,
                                                               timely administrative     Reporting, and Third
                                                               resolution of             Party Disclosure
                                                               complaints.               Requirements.''
Sec.   303.431(b)(2)(i).....................................  Requires the State to     Information collection
                                                               maintain a list of        1820-NEW ``State and
                                                               qualified mediators.      EIS Recordkeeping,
                                                                                         Reporting, and Third
                                                                                         Party Disclosure
                                                                                         Requirements.''
Sec.  Sec.   303.432 through 303.434........................  Requires the State to     Information collection
                                                               develop procedures for    1820-NEW ``State and
                                                               resolving complaints,     EIS Recordkeeping,
                                                               including the minimum     Reporting, and Third
                                                               State complaint           Party Disclosure
                                                               procedures and the        Requirements.''
                                                               procedures for filing a
                                                               complaint.
Sec.   303.440(b)...........................................  Requires the lead agency  Information collection
                                                               to inform parents of      1820-NEW ``State and
                                                               any free or low-cost      EIS Recordkeeping,
                                                               legal and other           Reporting, and Third
                                                               relevant services         Party Disclosure
                                                               available.                Requirements.''
Sec.   303.443(c)(3)........................................  Requires the State to     Information collection
                                                               maintain a list of        1820-NEW ``State and
                                                               hearing officers.         EIS Recordkeeping,
                                                                                         Reporting, and Third
                                                                                         Party Disclosure
                                                                                         Requirements.''
Sec.   303.124..............................................  Requires the State to     Information collection
                                                               develop a statewide       1820-0557 ``Report on
                                                               system for compiling      Infants and Toddlers
                                                               and reporting timely      Exiting Part C.''
                                                               and accurate data.
Sec.  Sec.   303.720 through 303.724........................  Requires the State to     Information collection
                                                               annually report to the    1820-0557 ``Report on
                                                               Secretary and the         Infants and Toddlers
                                                               public on the             Exiting Part C.''
                                                               information required by
                                                               section 618 of the Act.
                                                               Requires the annual
                                                               reporting of children
                                                               served, protection of
                                                               identifiable data and
                                                               certification of the
                                                               report.

[[Page 26493]]

 
Sec.  Sec.   303.100 through 303.126........................  Eligibility requirements  Information collection
                                                               for a grant and           1820-0550 ``Annual
                                                               requirements for a        State Application under
                                                               statewide system for      Part C of the IDEA.''
                                                               implementing Part C.
Sec.   303.200 through 303.227..............................  Requirements for each     Information collection
                                                               State application and     1820-0550 ``Annual
                                                               required assurances.      State Application under
                                                                                         Part C of the IDEA.''
Sec.   303.124..............................................  Requirements for a        Information collection
                                                               statewide system that     1820-0578 ``IDEA Part C
                                                               includes a system for     State Performance Plan
                                                               compiling and reporting   (SPP) and Annual
                                                               timely and accurate       Performance Report
                                                               data.                     (APR).''
Sec.   303.701..............................................  Requirements for data     Information collection
                                                               collection to report      1820-0578 ``IDEA Part C
                                                               annually to the           State Performance Plan
                                                               Secretary on the          (SPP) and Annual
                                                               indicators established    Performance Report
                                                               by the Secretary for      (APR).''
                                                               the State Performance
                                                               Plan.
Sec.   303.702..............................................  Requirements to report    Information collection
                                                               annually to the public    1820-0578 ``IDEA Part C
                                                               on the performance of     State Performance Plan
                                                               each EIS program in the   (SPP) and Annual
                                                               State on the targets in   Performance Report
                                                               the State's performance   (APR).''
                                                               plan; and the
                                                               requirements to make
                                                               the State's performance
                                                               plan, annual
                                                               performance report and
                                                               reports on the
                                                               performance of each EIS
                                                               program available
                                                               through public means.
Sec.  Sec.   303.431 through 303.449........................  Requires the State to     Information collection
                                                               annually report to the    1820-0678 ``Report of
                                                               Secretary and the         Dispute Resolution
                                                               public on information     under Part C of the
                                                               required by section 618   Individuals with
                                                               of the Act. Requires      Disabilities Education
                                                               the annual reporting of   Act.''
                                                               the number of due
                                                               process complaints, the
                                                               number of hearings
                                                               conducted, and the
                                                               number of mediations
                                                               held, and the number of
                                                               settlement agreements
                                                               reached through such
                                                               mediations.
----------------------------------------------------------------------------------------------------------------

    If you want to comment on the proposed information collection 
requirements, please send your comments to the Office of Information 
and Regulatory Affairs, OMB, Attention: Desk Officer for U.S. 
Department of Education. Send these comments by e-mail to [email protected] or by fax to (202) 395-6974. Commenters need only 
submit comments via one submission medium. You may also send a copy of 
these comments to the Department contact named in the ADDRESSES section 
of this preamble.
    We consider your comments on these proposed collections of 
information in--
     Deciding whether the proposed collections are necessary 
for the proper performance of our functions, including whether the 
information will have practical use;
     Evaluating the accuracy of our estimate of the burden of 
the proposed collections, including the validity of our methodology and 
assumptions;
     Enhancing the quality, usefulness, and clarity of the 
information we collect; and
     Minimizing the burden on those who must respond. This 
includes exploring the use of appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology; e.g., permitting electronic submission of 
responses.
    OMB is required to make a decision concerning the collections of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, to ensure that OMB gives your comments full consideration, 
it is important that OMB receives the comments within 30 days of 
publication. This does not affect the deadline for your comments to us 
on the proposed regulations.
    Requests for copies of the submission for OMB review may be 
accessed from http//edicsweb.ed.gov by selecting the ``Browse Pending 
Collections'' link. When you access the information collection, click 
on ``Download Attachments'' to view. Written requests for information 
should be addressed to U.S. Department of Education, 400 Maryland 
Avenue, SW., Potomac Center, 9th Floor, Washington, DC 20202-4700. 
Request may also be electronically mailed to the Internet address [email protected] or faxed to (202) 245-6621.
    If you want to comment on the information collection requirements, 
please send your comments to Alexa Posny, U.S. Department of Education, 
400 Maryland Avenue, SW., Potomac Center Plaza, room 4109, Washington, 
DC 20202-2641.

Intergovernmental Review

    This program is subject to the requirements of Executive Order 
12372 and the regulations in 34 CFR part 79. One of the objectives of 
the Executive order is to foster an intergovernmental partnership and a 
strengthened federalism by relying on processes developed by State and 
local governments for coordination and review of proposed Federal 
financial assistance.
    This document provides early notification of the Department's 
specific plans and actions for this program.

Assessment of Educational Impact

    The Secretary particularly requests comments on whether the 
proposed regulations would require transmission of information that any 
other agency or authority of the United States gathers or makes 
available.

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) 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 1-800-293-4922; 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 and the Code of Federal 
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.


(Catalog of Federal Domestic Assistance Number 84.181)

[[Page 26494]]



  Redesignation Table Showing Each Current Regulatory Section in 34 CFR
         Part 303 and the Corresponding Section in This NPRM \3\
------------------------------------------------------------------------
                                              B. Corresponding  section
    A. Current regulatory section number               in NPRM
------------------------------------------------------------------------
                           Subpart A--General
------------------------------------------------------------------------
    303.1 Purpose of the early intervention  303.1.
     program for infants and toddlers with
     disabilities.
    303.2 Eligible recipients of an award..  303.2.
    303.3 Activities that may be supported   03.501(a)-(e).
     under this part.
    303.4 Limitation on eligible children..  Removed.
    303.5 Applicable regulations...........  303.3.
 Definitions:
    Note...................................  Removed.
    303.6 Act..............................  303.4.
    303.7 Children.........................  303.6.
    303.8 Council..........................  303.8.
    303.9 Days.............................   303.9.
    303.10 Developmental delay.............   303.10.
    303.11 Early intervention program......  303.11.
    303.12 Early intervention services.....  303.13.
    Note to 303.12.........................  303.13(d).
    303.13 Health services.................  303.16.
    Note to 303.13.........................  Removed.
    303.14 IFSP............................  303.20.
    303.15 Include; including..............  303.18.
    303.16 Infants and toddlers with         303.21.
     disabilities.
    Note 1 to 303.16.......................  303.21(a)(2).
    Note 2 to 303.16.......................  303.5.
    303.17 Multidisciplinary...............  303.24.
    303.18 Natural environments............  303.26.
    303.19 Parent..........................  303.27.
    303.20 Policies........................  Removed.
    303.21 Public agency...................  303.30.
    303.22 Qualified.......................  303.31.
    303.23 Service coordination (case        303.33.
     management).
    Note 1 to 303.23.......................  Removed.
    Note 2 to 303.23.......................  303.33(c).
    303.24 State...........................  303.34.
    303.25 EDGAR definitions that apply....  303.3.
------------------------------------------------------------------------
     Subpart B--Eligibility and Requirements for a Statewide System
------------------------------------------------------------------------
General Requirements:
    303.100 Conditions of assistance.......  303.100, 303.101, 303.228.
    303.101 How the Secretary disapproves a  303.230.
     State's application or statement of
     assurances.
Public Participation:
    303.110 General requirements and         303.208.
     timelines for public participation.
    303.111 Notice of public hearings and    303.208(a).
     opportunity to comment.
    303.112 Public hearings................  303.208(a).
    303.113 Reviewing public comments        303.208.
     received.
Statement of Assurances:
    303.120 General........................  303.220.
    303.121 Reports and records............  303.224.
    303.122 Control of funds and property..  303.223.
    303.123 Prohibition against commingling  303.225(a).
    303.124 Prohibition against supplanting  303.225(b).
    303.125 Fiscal control.................  303.226.
    303.126 Payor of last resort...........  303.222.
    303.127 Assurance regarding expenditure  303.221.
     of funds.
    303.128 Traditionally underserved        303.227.
     groups.
General Requirements for a State
 Application:
    303.140 General........................  303.101 and 303.203(a).
    303.141 Information about the Council..  303.125.
    303.142 Designation of lead agency.....  303.201.
    303.143 Designation regarding financial   303.202.
     responsibility.
    303.144 Assurance regarding use of       303.221.
     funds.
    303.145 Description of use of funds....  303.205.
    303.146 Information about public         303.208.
     participation.
    303.147 Services to all geographic       303.207.
     areas.
    303.148 Transition to preschool          303.209.
     programs.
    Note 1 to 303.148......................  303.209.
Components of a Statewide System--
 Application Requirements:
    303.160 Minimum components of a          303.110.
     statewide system.
    303.161 State definition of              303.111.
     developmental delay.

[[Page 26495]]

 
    303.162 Central directory..............  303.117.
    303.164 Public awareness program.......  303.116.
    303.165 Comprehensive child find system  303.115.
    303.166 Evaluation, assessment, and      303.113.
     nondiscriminatory procedures.
    303.167 Individualized family service    303.114.
     plans.
    303.168 Comprehensive system of          303.118.
     personnel development (CSPD).
    303.169 Personnel standards............  303.119.
    303.170 Procedural safeguards..........  303.123.
    303.171 Supervision and monitoring of    303.120.
     programs.
    303.172 Lead agency procedures for       303.430(c).
     resolving complaints.
    303.173 Policies and procedures related  303.511.
     to financial matters.
    303.174 Interagency agreements;          303.120(e) and (f) 303.511.
     resolution of individual and disputes.
    303.175 Policy for contracting or        303.121.
     otherwise arranging for services.
    303.176 Data collection................  303.124.
Participation by the Secretary of the
 Interior:
    303.180 Payments to the Secretary of     303.731.
     the Interior for Indian tribes and
     tribal organizations.
------------------------------------------------------------------------
            Subpart C--Procedures for Making Grants to States
------------------------------------------------------------------------
    303.200 Formula for State allocations..  303.732.
    303.201 Distribution of allotments from  303.733.
     non-participating States.
    303.202 Minimum grant that a State may   303.732(b).
     receive.
    303.203 Payments to the Secretary of     303.731.
     the Interior.
    303.204 Payments to the jurisdictions..  303.730.
Program and Service Components of a
 Statewide System of Early Intervention
 Services:
    303.300 State eligibility criteria and   303.111, 303.203(c),
     procedures.                              303.204, 303.205(c), and
                                              303.320(b)(1).
    Note to 303.300........................  303.320(b)(2).
    303.301(a), (c) and Note to 303.301....  Removed.
    303.301(b), (d) Central Directory......  303.117.
Identification and Evaluation:
    303.320 Public awareness program.......  303.116, 303.300.
    303.321 Comprehensive child find system  303.301, 303.302.
    303.322 Evaluation and assessment......  303.320.
    303.323 Nondiscriminatory procedures...  303.320(a)(3).
Individualized Family Service Plans
 (IFSPs):
    303.340 General........................  303.340.
    303.342 Procedures for IFSP              303.342.
     development, review, and evaluation.
    303.343 Participants in IFSP meetings    303.343.
     and periodic reviews.
    303.344 Content of IFSP................  303.344.
    303.345 Provision of services before     303.345.
     evaluation and assessment are
     completed.
    303.346 Responsibility and               303.346.
     accountability.
Personnel Training and Standards:
    303.360 Comprehensive system of          303.118.
     personnel development.
    303.361 Personnel standards............  303.119.
------------------------------------------------------------------------
                    Subpart E--Procedural Safeguards
------------------------------------------------------------------------
General:
    303.400 General responsibility of lead   303.400.
     agency for procedural safeguards.
    303.401 Definitions of consent, native   303.24, 303.25, 303.29,
     language, and personally identifiable    303.401, 303.420, and
     information.                             303.421.
    303.402 Opportunity to examine records.  303.401.
    303.403 Prior notice; native language..  303.421.
    303.404 Parent consent.................  303.420.
    Note 1 to 303.404......................  303.401.
    Note 2 to 303.404......................  303.420(c).
    303.405 Parent right to decline service  303.420(d).
    303.406 Surrogate parents..............  303.422.
Mediation and Due Process Hearing
 Procedures for Parents and Children:
    303.419 Mediation......................  303.430(b); 303.431.
    303.420 Due process hearing procedures.  303.430(d) and 303.435-
                                              303.449.
    Note 1 to 303.420......................  303.435-303.439.
    Note 2 to 303.420......................  303.435-303.439.
    303.421 Appointment of an impartial      303.435.
     person.
    303.422 Parent rights in administrative  303.436.
     proceedings.
    303.423 Convenience of proceedings;      303.437.
     timelines.
    303.424 Civil action...................  303.438.
    303.425 Status of a child during         303.430(e).
     proceedings.
Confidentiality:

[[Page 26496]]

 
    303.460 Confidentiality of information.  303.401-303.417.
------------------------------------------------------------------------
                     Subpart F--State Administration
------------------------------------------------------------------------
General:
    303.500 Lead agency establishment or      303.201.
     designation.
    303.501 Supervision and monitoring of    303.120.
     programs.
Lead Agency Procedures for Resolving
 Complaints:
    303.510 Adopting complaint procedures..  303.432.
    303.511 An organization or individual    303.434(a).
     may file a complaint.
    303.512 Minimum State complaint          303.433.
     procedures.
Policies and Procedures Related to
 Financial Matters:
    303.520 Policies related to payment for  303.511.
     services.
    303.521 Fees...........................  303.521.
    303.522 Identification and coordination  303.511.
     of resources.
    303.523 Interagency agreements.........  303.120(f) and 303.511.
    303.524 Resolution of disputes.........  303.120(e) and 303.511.
    303.525 Delivery of services in a        303.511(d).
     timely manner.
    303.526 Policy for contracting or        303.121.
     otherwise arranging for services.
    303.527 Payor of last resort...........  303.510.
    303.528 Reimbursement procedures.......  303.122, 303.510(b).
Reporting Requirements:
    303.540 Data collection................  303.124.
Use of funds for State Administration:
    303.560 Use of funds by the Lead Agency  303.501.
------------------------------------------------------------------------
            Subpart G--State Interagency Coordination Council
------------------------------------------------------------------------
General:
    303.600 Establishment of Council.......  303.600.
    Note to 303.600 (Paragraph 1)..........  303.601(a)(1)(iii).
    Note to 303.600 (Paragraph 2)..........  Removed.
    303.601 Composition....................  303.601.
    303.602 Use of funds by the Council....  303.603.
    303.603 Meetings.......................  303.602.
    303.604 Conflict of interest...........  303.601(d).
Functions of the Council:
    303.650 General........................  303.605.
    303.651 Advising and assisting the lead  303.604(a).
     agency in its administrative duties.
    303.652 Applications...................  303.604(a).
    303.653 Transitional services..........  303.604(a).
    303.654 Annual report to the Secretary.  303.604(c).
------------------------------------------------------------------------
\3\ See explanation at the end of this table.

    .Explanation of Table: The purpose of this table is to help readers 
find where a given section number in the current regulations (column A 
of Table) is located in this NPRM, as shown under column B. In general, 
the table does not include any new requirements added by Pub. L. 108-
446, or any proposed new regulations that would be added. In the Table, 
if a specific section of the current regulations would be removed by 
the NPRM (e.g., ``Early intervention program'' under current Sec.  
303.11), it would be shown as ``Removed'' under column B.

List of Subjects in 34 CFR Part 303

    Education of individuals with disabilities, Grant programs-- 
education, Infants and toddlers, Reporting and recordkeeping 
requirements.

    Dated: April 27, 2007.
Margaret Spellings,
Secretary of Education.
    For the reasons discussed in this preamble, the Secretary proposes 
to amend Title 34 of the Code of Federal Regulations by revising part 
303 as follows:

PART 303--EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH 
DISABILITIES

Subpart A--General

Purpose and Applicable Regulations

Sec.
303.1 Purpose of the early intervention program for infants and 
toddlers with disabilities.
303.2 Eligible recipients of an award.
303.3 Applicable regulations.

Definitions Used in This Part

303.4 Act.
303.5 At-risk infant or toddler.
303.6 Child.
303.7 Consent.
303.8 Council.
303.9 Day.
303.10 Developmental delay.
303.11 Early intervention service program.
303.12 Early intervention service provider.
303.13 Early intervention services.
303.14 Elementary school.
303.15 Free appropriate public education.
303.16 Health services.
303.17 Homeless children.
303.18 Include; including.
303.19 Indian; Indian tribe.
303.20 Individualized family service plan.
303.21 Infant or toddler with a disability.
303.22 Lead agency.
303.23 Local educational agency.
303.24 Multidisciplinary.
303.25 Native language.
303.26 Natural environments.

[[Page 26497]]

303.27 Parent.
303.28 Parent training and information center.
303.29 Personally identifiable.
303.30 Public agency.
303.31 Qualified personnel.
303.32 Secretary.
303.33 Service coordination services (case management).
303.34 State.
303.35 State educational agency.
303.36 Ward of the State.
Subpart B--State Eligibility for a Grant and Requirements for a 
Statewide System

General Authority and Eligibility

303.100 General authority.
303.101 State eligibility--requirements for a grant under this part.

State Conformity with Part C of the Act and Abrogation of State 
Sovereign Immunity

303.102 State conformity with Part C of the Act.
303.103 Abrogation of State sovereign immunity.

Equipment and Construction

303.104 Acquisition of equipment and construction or alteration of 
facilities.

Positive Efforts To Employ and Advance Qualified Individuals with 
Disabilities

303.105 Positive efforts to employ and advance qualified individuals 
with disabilities.

Minimum Components of a Statewide System

303.110 Minimum components of a statewide system.
303.111 State definition of developmental delay.
303.112 Availability of early intervention services.
303.113 Evaluation, assessment, and nondiscriminatory procedures.
303.114 Individualized family service plans (IFSPs).
303.115 Comprehensive child find system.
303.116 Public awareness program.
303.117 Central directory.
303.118 Comprehensive system of personnel development (CSPD).
303.119 Personnel standards.
303.120 Lead agency role in supervision, monitoring, funding, 
interagency coordination, and other responsibilities.
303.121 Policy for contracting or otherwise arranging for services.
303.122 Reimbursement procedures.
303.123 Procedural safeguards.
303.124 Data collection.
303.125 State interagency coordinating council.
303.126 Early intervention services in natural environments.
Subpart C--State Application and Assurances

General

303.200 State application and assurances.

Application Requirements

303.201 Designation of lead agency.
303.202 Certification regarding financial responsibility.
303.203 Statewide system and description of services.
303.204 Application's definition of at-risk infants and toddlers and 
description of services.
303.205 Description of use of funds.
303.206 Referral policies for specific children.
303.207 Availability of resources.
303.208 Public participation policies and procedures.
303.209 Transition to preschool and other programs.
303.210 Coordination with Head Start and Early Head Start, early 
education, and child care programs.
303.211 State option to make services under this part available to 
children ages three and older.
303.212 Additional information and assurances.

Assurances

303.220 Assurances satisfactory to the Secretary.
303.221 Expenditure of funds.
303.222 Payor of last resort.
303.223 Control of funds and property.
303.224 Reports and records.
303.225 Prohibition against commingling and supplanting; indirect 
costs.
303.226 Fiscal control.
303.227 Traditionally underserved groups.

Subsequent Applications and Modifications, Eligibility Determinations, 
and Standard of Disapproval

303.228 Subsequent State application and modifications of 
application.
303.229 Determination by the Secretary that a State is eligible.
303.230 Standard for disapproval of an application.

Department Procedures

303.231 Notice and hearing before determining that a State is not 
eligible.
303.232 Hearing Official or Panel.
303.233 Hearing procedures.
303.234 Initial decision; final decision.
303.235 Filing requirements.
303.236 Judicial review.
Subpart D--Child Find, Evaluations and Assessments, and Individualized 
Family Service Plans

Identification--Public Awareness, Child Find, and Referral

303.300 Public awareness program--information for parents.
303.301 Comprehensive child find system.
303.302 Referral procedures.
303.303 Screening procedures.

Evaluation and Assessment of the Child and Family and Assessment of 
Service Needs

303.320 Evaluation and assessment of the child and family and 
assessment of service needs.

Individualized Family Service Plans (IFSPs)

303.340 Individualized family service plans--general.
303.341 [Reserved]
303.342 Procedures for IFSP development, review, and evaluation.
303.343 IFSP team meetings and periodic reviews.
303.344 Content of an IFSP.
303.345 Provision of services before evaluations and assessments are 
completed.
303.346 Responsibility and accountability.
Subpart E--Procedural Safeguards General
303.400 General responsibility of lead agency for procedural 
safeguards.

Confidentiality

303.401 Confidentiality and opportunity to examine records.

Additional Confidentiality Requirements

303.402 Confidentiality.
303.403 Definitions.
303.404 Notice to parents.
303.405 Access rights.
303.406 Record of access.
303.407 Records on more than one child.
303.408 List of types and locations of information.
303.409 Fees.
303.410 Amendment of records at parent's request.
303.411 Opportunity for a hearing.
303.412 Result of hearing.
303.413 Hearing procedures.
303.414 Consent prior to disclosure or use.
303.415 Safeguards.
303.416 Destruction of information.
303.417 Enforcement.

Parental Consent and Notice

303.420 Parental consent and ability to decline service.
303.421 Prior written notice and procedural safeguards notice.

Surrogate Parents

303.422 Surrogate parents.

Dispute Resolution Options

303.430 State dispute resolution options.

Mediation

303.431 Mediation.

State Complaint Procedures

303.432 Adoption of State complaint procedures.
303.433 Minimum State complaint procedures.
303.434 Filing a complaint.

States That Choose To Adopt the Part C Due Process Hearing Procedures 
Under Section 639 of the Act

303.435 Appointment of an impartial due process hearing officer.
303.436 Parental rights in due process hearing proceedings.
303.437 Convenience of hearings and timelines.
303.438 Civil action.

States That Choose To Adopt the Part B Due Process Hearing Procedures 
Under Section 615 of the Act

 303.440 Filing a due process complaint.
303.441 Due process complaint.
303.442 Resolution process.

[[Page 26498]]

303.443 Impartial due process hearing.
303.444 Hearing rights.
303.445 Hearing decisions.
303.446 Finality of decision; appeal; impartial review.
303.447 Timelines and convenience of hearings and reviews.
303.448 Civil action.
303.449 State enforcement mechanisms.
Subpart F--Use of Funds and Payor of Last Resort

General

 303.500 Use of funds and payor of last resort.

Use of Funds

303.501 Permissive use of funds by the lead agency.

Payor of Last Resort

303.510 Payor of last resort.
303.511 Establishing financial responsibility for, and methods of, 
ensuring services.

Use of Insurance, Benefits, Systems of Payments, and Fees

303.520 Policies related to use of public insurance or benefits and 
private insurance for payment for services.
303.521 System of payments and fees.
Subpart G--State Interagency Coordinating Council
 303.600 Establishment of Council.
303.601 Composition.
303.602 Meetings.
303.603 Use of funds by the Council.
303.604 Functions of the Council--required duties.
303.605 Authorized activities by the Council.
Subpart H--Federal Administration and Allocation of Funds Monitoring, 
Technical Assistance, and Enforcement
303.700 State monitoring and enforcement.
303.701 State performance plans and data collection.
303.702 State use of targets and reporting.
303.703 Secretary's review and determination regarding State 
performance.
303.704 Enforcement.
303.705 Withholding funds.
303.706 Public attention.
303.707 Rule of construction.
303.708 State enforcement.

Reports--Program Information

303.720 Data requirements--general.
303.721 Annual report of children served--report requirement.
303.722 Data reporting.
303.723 Annual report of children served--certification.
303.724 Annual report of children served--other responsibilities of 
the lead agency.

Allocation of Funds

303.730 Formula for State allocations.
303.731 Payments to Indians.
303.732 State allotments.
303.733 Reallotment of funds.
303.734 Reservation for State incentive grants.

    Authority: 20 U.S.C. 1431 through 1445, unless otherwise noted.

Subpart A--General

Purpose and Applicable Regulations


Sec.  303.1  Purpose of the early intervention program for infants and 
toddlers with disabilities.

    The purpose of this part is to provide financial assistance to 
States to--
    (a) Develop and implement a statewide, comprehensive, coordinated, 
multidisciplinary, interagency system that provides early intervention 
services for infants and toddlers with disabilities and their families;
    (b) Facilitate the coordination of payment for early intervention 
services from Federal, State, local, and private sources (including 
public and private insurance coverage);
    (c) Enhance State capacity to provide quality early intervention 
services and expand and improve existing early intervention services 
being provided to infants and toddlers with disabilities and their 
families;
    (d) Enhance the capacity of State and local agencies and service 
providers to identify, evaluate, and meet the needs of all children, 
including historically underrepresented populations, particularly 
minority, low-income, inner-city, and rural children, and infants and 
toddlers in foster care; and
    (e) Encourage States to expand opportunities for children under 
three years of age who would be at risk of having substantial 
developmental delay if they did not receive early intervention 
services.

(Authority: 20 U.S.C. 1400(d)(2), 1431(a)(5), 1435(b))

Sec.  303.2  Eligible recipients of an award.

    Eligible recipients include the 50 States, the Commonwealth of 
Puerto Rico, the District of Columbia, the Secretary of the Interior, 
and the following jurisdictions: Guam, American Samoa, the United 
States Virgin Islands, and the Commonwealth of the Northern Mariana 
Islands.

(Authority: 20 U.S.C. 1401(31), 1434)

Sec.  303.3  Applicable regulations.

    (a) The following regulations apply to this part:
    (1) The regulations in this part 303; and
    (2) The Education Department General Administrative Regulations 
(EDGAR), including 34 CFR parts 76 (except for Sec.  76.103), 77, 79, 
80, 81, 82, 84, 85, and 86.
    (b) In applying the regulations cited in paragraph (a)(2) of this 
section, any reference to State educational agency means the lead 
agency under this part.

(Authority: 20 U.S.C. 1221e-3)

Definitions Used in This Part


Sec.  303.4  Act.

    Act means the Individuals with Disabilities Education Act, as 
amended.

(Authority: 20 U.S.C. 1400(a))

Sec.  303.5  At-risk infant or toddler.

    At-risk infant or toddler means an individual under three years of 
age who would be at risk of experiencing a substantial developmental 
delay if early intervention services were not provided to the 
individual. At the State's discretion, at-risk infant or toddler may 
include an infant or toddler who is at risk of experiencing 
developmental delays because of biological and environmental factors 
that can be identified such as low birth weight, respiratory distress 
as a newborn, lack of oxygen, brain hemorrhage, infection, nutritional 
deprivation, and a history of abuse or neglect, being directly affected 
by illegal substance abuse or withdrawal symptoms resulting from 
prenatal drug exposure.

(Authority: 20 U.S.C. 1432(1) and 1437(a)(6))

Sec.  303.6  Child.

    Child means an individual under the age of six and may include an 
infant or toddler with a disability, as that term is defined in Sec.  
303.21.

(Authority: 20 U.S.C. 1432(5))

Sec.  303.7  Consent.

    Consent means that--
    (a) The parent has been fully informed of all information relevant 
to the activity for which consent is sought, in the parent's native 
language, or other mode of communication;
    (b) The parent understands and agrees in writing to the carrying 
out of the activity for which the parent's consent is sought, and the 
consent describes that activity and lists the records (if any) that 
will be released and to whom; and
    (c)(1) The parent understands that the granting of consent is 
voluntary on the part of the parent and may be revoked at anytime.
    (2) If a parent revokes consent, that revocation is not retroactive 
(i.e., it does not apply to an action that has occurred before the 
consent was revoked).

(Authority: 20 U.S.C. 1439)

Sec.  303.8  Council.

    Council means the State Interagency Coordinating Council that meets 
the requirements of subpart G of this part.

(Authority: 20 U.S.C. 1432(2))


[[Page 26499]]




Sec.  303.9  Day.

    Day means calendar day, unless otherwise indicated.

(Authority: 20 U.S.C. 1221e-3)

Sec.  303.10  Developmental delay.

    Developmental delay, when used with respect to a child residing in 
a State, has the meaning given that term by the State under Sec.  
303.111.

(Authority: 20 U.S.C. 1432(3))

Sec.  303.11  Early intervention service program.

    Early intervention service program or EIS program means an entity 
designated by the lead agency for reporting under Sec. Sec.  303.700 
through 303.702.

(Authority: 20 U.S.C. 1416, 1431-1444)

Sec.  303.12  Early intervention service provider.

    (a) Early intervention service provider or EIS provider means an 
entity (whether public, private, or nonprofit) or an individual that 
provides early intervention services under Part C of the Act, whether 
or not the entity or individual receives Federal funds under Part C of 
the Act, and may include, where appropriate, the lead agency and a 
public agency responsible for providing early intervention services to 
infants and toddlers with disabilities in the State under Part C of the 
Act.
    (b) An EIS provider is responsible for--
    (1) Participating in the multidisciplinary team's assessment of an 
infant or toddler with a disability and a family-directed assessment of 
the resources, priorities, and concerns of the infant's or toddler's 
family, as related to the needs of the infant or toddler, in the 
development of integrated goals and outcomes for the individualized 
family service plan (IFSP);
    (2) Providing early intervention services in accordance with the 
IFSP of the infant or toddler with a disability; and
    (3) Consulting with and training parents and others regarding the 
provision of the early intervention services described in the IFSP of 
the infant or toddler with a disability.

(Authority: 20 U.S.C. 1431-1444)

Sec.  303.13  Early intervention services.

    (a) General. Early intervention services means developmental 
services that--
    (1) Are provided under public supervision;
    (2) Are selected in collaboration with the parents;
    (3) Are provided at no cost, except, subject to Sec. Sec.  303.520 
and 303.521, where Federal or State law provides for a system of 
payments by families, including a schedule of sliding fees;
    (4) Are designed to meet the developmental needs of an infant or 
toddler with a disability and as requested by the family, the needs of 
the family to assist appropriately in the infant's or toddler's 
development, as identified by the individualized family service plan 
team, in any one or more of the following areas, including--
    (i) Physical development;
    (ii) Cognitive development;
    (iii) Communication development;
    (iv) Social or emotional development; or
    (v) Adaptive development;
    (5) Meet the standards of the State in which the services are 
provided, including the requirements of Part C of the Act;
    (6) Include services identified under paragraph (b) of this 
section;
    (7) Are provided by qualified personnel (as that term is defined in 
Sec.  303.31), including the types of personnel listed in paragraph (c) 
of this section;
    (8) To the maximum extent appropriate, are provided in natural 
environments, as defined in Sec.  303.26 and consistent with Sec.  
303.126; and
    (9) Are provided in conformity with an individualized family 
service plan adopted in accordance with section 636 of the Act and 
Sec.  303.20.
    (b) Types of early intervention services. Subject to paragraph (d) 
of this section, early intervention services include the following 
services defined in this paragraph:
    (1) Assistive technology devices and services are defined as 
follows:
    (i) Assistive technology device means any item, piece of equipment, 
or product system, whether acquired commercially off the shelf, 
modified, or customized, that is used to increase, maintain, or improve 
the functional capabilities of an infant or toddler with a disability. 
The term does not include a medical device that is surgically 
implanted, including cochlear implants, or the optimization (e.g., 
mapping) or the maintenance or replacement of that device.
    (ii) Assistive technology service means any service that directly 
assists an infant or toddler with a disability in the selection, 
acquisition, or use of an assistive technology device. The term 
includes--
    (A) The evaluation of the needs of an infant or toddler with a 
disability, including a functional evaluation of the infant or toddler 
with a disability in the child's customary environment;
    (B) Purchasing, leasing, or otherwise providing for the acquisition 
of assistive technology devices by infants or toddlers with 
disabilities;
    (C) Selecting, designing, fitting, customizing, adapting, applying, 
maintaining, repairing, or replacing assistive technology devices;
    (D) Coordinating and using other therapies, interventions, or 
services with assistive technology devices, such as those associated 
with existing education and rehabilitation plans and programs;
    (E) Training or technical assistance for an infant or toddler with 
a disability or, if appropriate, that child's family; and
    (F) Training or technical assistance for professionals (including 
individuals providing education or rehabilitation services) or other 
individuals who provide services to, or are otherwise substantially 
involved in the major life functions of, infants and toddlers with 
disabilities.
    (2) Audiology services includes--
    (i) Identification of children with auditory impairment, using at 
risk criteria and appropriate audiologic screening techniques;
    (ii) Determination of the range, nature, and degree of hearing loss 
and communication functions, by use of audiological evaluation 
procedures;
    (iii) Referral for medical and other services necessary for the 
habilitation or rehabilitation of an infant or toddler with a 
disability who has an auditory impairment;
    (iv) Provision of auditory training, aural rehabilitation, speech 
reading and listening devices, orientation and training, and other 
services;
    (v) Provision of services for prevention of hearing loss; and
    (vi) Determination of the child's need for individual 
amplification, including selecting, fitting, and dispensing appropriate 
listening and vibrotactile devices, and evaluating the effectiveness of 
those devices.
    (3) Family training, counseling, and home visits means services 
provided, as appropriate, by social workers, psychologists, and other 
qualified personnel to assist the family of an infant or toddler with a 
disability in understanding the special needs of the child and 
enhancing the child's development.
    (4) Health services has the meaning given the term in Sec.  303.16.
    (5) Medical services means services provided by a licensed 
physician for diagnostic or evaluation purposes to determine a child's 
developmental status and need for early intervention services.
    (6) Occupational therapy includes services to address the 
functional needs of an infant or toddler with a disability

[[Page 26500]]

related to adaptive development, adaptive behavior and play, and 
sensory, motor, and postural development. These services are designed 
to improve the child's functional ability to perform tasks in home, 
school, and community settings, and include--
    (i) Identification, assessment, and intervention;
    (ii) Adaptation of the environment, and selection, design, and 
fabrication of assistive and orthotic devices to facilitate development 
and promote the acquisition of functional skills; and
    (iii) Prevention or minimization of the impact of initial or future 
impairment, delay in development, or loss of functional ability.
    (7) Physical therapy includes services to address the promotion of 
sensorimotor function through enhancement of musculoskeletal status, 
neurobehavioral organization, perceptual and motor development, 
cardiopulmonary status, and effective environmental adaptation. These 
services include--
    (i) Screening, evaluation, and assessment of children to identify 
movement dysfunction;
    (ii) Obtaining, interpreting, and integrating information 
appropriate to program planning to prevent, alleviate, or compensate 
for movement dysfunction and related functional problems; and
    (iii) Providing individual and group services or treatment to 
prevent, alleviate, or compensate for, movement dysfunction and related 
functional problems.
    (8) Psychological services includes--
    (i) Administering psychological and developmental tests and other 
assessment procedures;
    (ii) Interpreting assessment results;
    (iii) Obtaining, integrating, and interpreting information about 
child behavior and child and family conditions related to learning, 
mental health, and development; and
    (iv) Planning and managing a program of psychological services, 
including psychological counseling for children and parents, family 
counseling, consultation on child development, parent training, and 
education programs.
    (9) Service coordination services has the meaning given the term in 
Sec.  303.33.
    (10) Social work services includes--
    (i) Making home visits to evaluate a child's living conditions and 
patterns of parent-child interaction;
    (ii) Preparing a social or emotional developmental assessment of 
the infant or toddler within the family context;
    (iii) Providing individual and family-group counseling with parents 
and other family members, and appropriate social skill-building 
activities with the infant or toddler and parents;
    (iv) Working with those problems in the living situation (home, 
community, and any center where early intervention services are 
provided) of an infant or toddler with a disability and the family of 
that child that affect the child's maximum utilization of early 
intervention services; and
    (v) Identifying, mobilizing, and coordinating community resources 
and services to enable the infant or toddler with a disability and the 
family to receive maximum benefit from early intervention services.
    (11) Special instruction includes--
    (i) The design of learning environments and activities that promote 
the infant's or toddler's acquisition of skills in a variety of 
developmental areas, including cognitive processes and social 
interaction;
    (ii) Curriculum planning, including the planned interaction of 
personnel, materials, and time and space, that leads to achieving the 
outcomes in the individualized family service plan for the infant or 
toddler with a disability;
    (iii) Providing families with information, skills, and support 
related to enhancing the skill development of the child; and
    (iv) Working with the infant or toddler with a disability to 
enhance the child's development.
    (12) Speech-language pathology services includes--
    (i) Identification of children with communication or language 
disorders and delays in development of communication skills, including 
the diagnosis and appraisal of specific disorders and delays in those 
skills;
    (ii) Referral for medical or other professional services necessary 
for the habilitation or rehabilitation of children with communicative 
or language disorders and delays in development of communication 
skills;
    (iii) Provision of services for the habilitation, rehabilitation, 
or prevention of communicative or language disorders and delays in 
development of communication skills; and
    (iv) Provision of sign language, cued language, and auditory/oral 
language services, which, as used with respect to infants and toddlers 
with disabilities who are hearing impaired, includes services to the 
infant or toddler with a disability and the family to teach sign 
language, cued language, and auditory/oral language, as well as to 
provide oral transliteration services, sign language, and cued language 
interpreting services.
    (13) Transportation and related costs includes the cost of travel 
(e.g., mileage, or travel by common carrier or other means) and other 
costs (e.g., tolls and parking expenses) that are necessary to enable 
an infant or toddler with a disability and the child's family to 
receive early intervention services.
    (14) Vision services means--
    (i) Evaluation and assessment of visual functioning, including the 
diagnosis and appraisal of specific visual disorders, delays, and 
abilities;
    (ii) Referral for medical or other professional services necessary 
for the habilitation or rehabilitation of visual functioning disorders, 
or both; and
    (iii) Communication skills training, orientation and mobility 
training for all environments, visual training, independent living 
skills training, and additional training necessary to activate visual 
motor abilities.
    (c) Qualified personnel. The following are the types of qualified 
personnel who provide early intervention services under this part:
    (1) Audiologists.
    (2) Family therapists.
    (3) Nurses.
    (4) Occupational therapists.
    (5) Orientation and mobility specialists.
    (6) Pediatricians and other physicians for diagnostic and 
evaluation purposes.
    (7) Physical therapists.
    (8) Psychologists.
    (9) Registered dieticians.
    (10) Social workers.
    (11) Special educators, including teachers of children with hearing 
impairments (including deafness) and teachers of children with visual 
impairments (including blindness).
    (12) Speech and language pathologists.
    (13) Vision specialists, including ophthalmologists and 
optometrists.
    (d) Other services. The services and personnel identified and 
defined in paragraphs (b) and (c) of this section do not comprise 
exhaustive lists of the types of services that may constitute early 
intervention services or the types of qualified personnel that may 
provide early intervention services. Nothing in this section prohibits 
the identification on the IFSP of another type of service as an early 
intervention service provided that the service meets the criteria 
identified in paragraph (a) of this section or of another type of 
personnel that may provide early intervention services in accordance 
with this part, provided such personnel meet the requirements in Sec.  
303.31.

(Authority: 20 U.S.C. 1432(4))


[[Page 26501]]




Sec.  303.14  Elementary school.

    Elementary school means a nonprofit institutional day or 
residential school, including a public elementary charter school that 
provides elementary education, as determined under State law.

(Authority: 20 U.S.C. 1401(6))

Sec.  303.15  Free appropriate public education.

    Free appropriate public education or FAPE means special education 
and related services that--
    (a) Are provided at public expense, under public supervision and 
direction, and without charge;
    (b) Meet the standards of the State educational agency (SEA), 
including the requirements of Part B of the Act;
    (c) Include an appropriate preschool, elementary school, or 
secondary school education in the State involved; and
    (d) Are provided in conformity with an individualized education 
program (IEP) that meets the requirements of 34 CFR 300.320 through 
300.324.

(Authority: 20 U.S.C. 1401(9))

Sec.  303.16  Health services.

    (a) Health services means services necessary to enable a child to 
benefit from the other early intervention services under this part 
during the time that the child is eligible to receive other early 
intervention services.
    (b) The term includes--
    (1) Such services as clean intermittent catheterization, 
tracheostomy care, tube feeding, the changing of dressings or colostomy 
collection bags, and other health services; and
    (2) Consultation by physicians with other service providers 
concerning the special health care needs of infants and toddlers with 
disabilities that will need to be addressed in the course of providing 
other early intervention services.
    (c) The term does not include--
    (1) Services that are--
    (i) Surgical in nature (such as cleft palate surgery, surgery for 
club foot, or the shunting of hydrocephalus);
    (ii) Purely medical in nature (such as hospitalization for 
management of congenital heart ailments, or the prescribing of medicine 
or drugs for any purpose); or
    (iii) Related to the implementation, optimization (e.g., mapping), 
maintenance, or replacement of a medical device that is surgically 
implanted, including cochlear implants.
    (A) Nothing in this part limits the right of an infant or toddler 
with a disability with a surgically implanted device (e.g. cochlear 
implant) to receive the early intervention services that are identified 
on the child's IFSP as being needed to meet the child's developmental 
outcomes.
    (B) Nothing in this part prevents the EIS provider from routinely 
checking that either the hearing aid or the external components of a 
surgically implanted device (e.g., cochlear implant) of an infant or 
toddler with a disability are functioning properly.
    (2) Devices (such as heart monitors, respirators and oxygen, and 
gastrointestinal feeding tubes and pumps) necessary to control or treat 
a medical condition.
    (3) Medical-health services (such as immunizations and regular 
``well-baby'' care) that are routinely recommended for all children.

(Authority: 20 U.S.C. 1432(4))

Sec.  303.17  Homeless children.

    Homeless children means children under the age of three years who 
meet the definition given the term homeless children and youths in 
section 725 (42 U.S.C. 11434a) of the McKinney-Vento Homeless 
Assistance Act, as amended, 42 U.S.C. 11431 et seq.

(Authority: 20 U.S.C. 1401(11))

Sec.  303.18  Include; including.

    Include; including means that the items named are not all of the 
possible items that are covered, whether like or unlike the ones named.

(Authority: 20 U.S.C. 1221e-3)

Sec.  303.19  Indian; Indian tribe.

    (a) Indian means an individual who is a member of an Indian tribe.
    (b) Indian tribe means any Federal or State Indian tribe, band, 
rancheria, pueblo, colony, or community, including any Alaska Native 
village or regional village corporation (as defined in or established 
under the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq.).
    (c) Nothing in this definition is intended to indicate that the 
Secretary of the Interior is required to provide services or funding to 
a State Indian Tribe that is not listed in the Federal Register list of 
Indian entities recognized as eligible to receive services from the 
United States, published pursuant to section 104 of the Federally 
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a-1.

(Authority: 20 U.S.C. 1401(12)-(13))

Sec.  303.20  Individualized family service plan.

    Individualized family service plan or IFSP means a written plan for 
providing early intervention services to an infant or toddler with a 
disability under this part and the infant's or toddler's family that--
    (a) Is based on the evaluation and assessment described in Sec.  
303.320;
    (b) Includes the content specified in Sec.  303.344;
    (c) Is implemented as soon as possible once parental consent to 
early intervention services on the IFSP is obtained (consistent with 
Sec.  303.420); and
    (d) Is developed in accordance with the IFSP procedures in 
Sec. Sec.  303.342, 303.343, and 303.345.

(Authority: 20 U.S.C. 1401(15), 1435(a)(4), 1436)

Sec.  303.21  Infant or toddler with a disability.

    (a) Infant or toddler with a disability means an individual under 
three years of age who needs early intervention services because the 
individual--
    (1) Is experiencing a developmental delay, as measured by 
appropriate diagnostic instruments and procedures, in one or more of 
the following areas:
    (i) Cognitive development.
    (ii) Physical development, including vision and hearing.
    (iii) Communication development.
    (iv) Social or emotional development.
    (v) Adaptive development; or
    (2) Has a diagnosed physical or mental condition that--
    (i) Has a high probability of resulting in developmental delay; and
    (ii) Includes conditions such as chromosomal abnormalities; genetic 
or congenital disorders; severe sensory impairments; inborn errors of 
metabolism; disorders reflecting disturbance of the development of the 
nervous system; congenital infections; and disorders secondary to 
exposure to toxic substances, including fetal alcohol syndrome.
    (b) Infant or toddler with a disability also may include, at a 
State's discretion, an at-risk infant or toddler (as defined in Sec.  
303.5).
    (c) Infant or toddler with a disability also may include, at a 
State's discretion, a child with a disability who is eligible for 
services under section 619 of the Act and who previously received 
services under this part until the child enters, or is eligible under 
State law to enter, kindergarten or elementary school, as appropriate, 
provided that any programs under this part serving the child must 
include--
    (1) An educational component that promotes school readiness and 
incorporates pre-literacy, language, and numeracy skills; and
    (2) A written notification to parents of their rights and 
responsibilities in determining whether their child will continue to 
receive services under this

[[Page 26502]]

part or participate in preschool programs under section 619 of the Act.

(Authority: 20 U.S.C. 1401(16), 1432(5))

Sec.  303.22  Lead agency.

    Lead agency means the agency designated by the State's Governor 
under section 635(a)(10) of the Act and Sec.  303.120 that receives 
funds under section 643 of the Act to administer the State's 
responsibilities under Part C of the Act.

(Authority: 20 U.S.C. 1435(a)(10))

Sec.  303.23  Local educational agency.

    (a) General. Local educational agency or LEA means a public board 
of education or other public authority legally constituted within a 
State for either administrative control or direction of, or to perform 
a service function for, public elementary schools or secondary schools 
in a city, county, township, school district, or other political 
subdivision of a State, or for a combination of school districts or 
counties as are recognized in a State as an administrative agency for 
its public elementary schools or secondary schools.
    (b) Educational service agencies and other public institutions or 
agencies. The term includes the following:
    (1) Educational service agency, defined as a regional public 
multiservice agency--
    (i) Authorized by State law to develop, manage, and provide 
services or programs to LEAs; and
    (ii) Recognized as an administrative agency for purposes of the 
provision of special education and related services provided within 
public elementary schools and secondary schools of the State.
    (2) Any other public institution or agency having administrative 
control and direction of a public elementary school or secondary 
school, including a public charter school that is established as an LEA 
under State law.
    (3) Entities that meet the definition of intermediate educational 
unit or IEU in section 602(23) of the Act, as in effect prior to June 
4, 1997. Under that definition an intermediate educational unit or IEU 
means any public authority other than an LEA that--
    (i) Is under the general supervision of a State educational agency;
    (ii) Is established by State law for the purpose of providing free 
appropriate public education on a regional basis; and
    (iii) Provides special education and related services to children 
with disabilities within the State.
    (c) BIA funded schools. The term includes an elementary school or 
secondary school funded by the Bureau of Indian Affairs, and not 
subject to the jurisdiction of any SEA other than the Bureau of Indian 
Affairs, but only to the extent that the inclusion makes the school 
eligible for programs for which specific eligibility is not provided to 
the school in another provision of law and the school does not have a 
student population that is smaller than the student population of the 
LEA receiving assistance under the Act with the smallest student 
population.

(Authority: 20 U.S.C. 1401(5), 1401(19))

Sec.  303.24  Multidisciplinary.

    Multidisciplinary, with respect to evaluation and assessment of a 
child, an IFSP team, or IFSP development under subpart D of this part, 
means the involvement of two or more individuals from separate 
disciplines or professions or one individual who is qualified in more 
than one discipline or profession.

(Authority: 20 U.S.C. 1221e-3, 1435(a)(3), 1436(a)(1), 1436(a)(3))

Sec.  303.25  Native language.

    (a) Native language, when used with respect to an individual who is 
limited English proficient, means the following:
    (1) The language or mode of communication normally used by that 
individual, or, in the case of a child, the language or mode of 
communication normally used by the parents of the child, except as 
provided in paragraph (a)(2) of this section.
    (2) In all direct contact with a child (including evaluation of the 
child), the language or mode of communication normally used by the 
child in the home or learning environment.
    (b) For an individual with deafness or blindness, or for an 
individual with no written language, the term native language means the 
mode of communication that is normally used by the individual (such as 
sign language, Braille, or oral communication).

(Authority: 20 U.S.C. 1401(20))

Sec.  303.26  Natural environments.

    Natural environments means settings that are natural or normal for 
an infant or toddler without a disability, may include the home, and 
must be consistent with the provisions of Sec.  303.126.

(Authority: 20 U.S.C. 1435, 1436)

Sec.  303.27  Parent.

    (a) Parent means--
    (1) A biological or adoptive parent of a child;
    (2) A foster parent, unless State law, regulations, or contractual 
obligations with a State or local entity prohibit a foster parent from 
acting as a parent;
    (3) A guardian generally authorized to act as the child's parent, 
or authorized to make early intervention, educational, health or 
developmental decisions for the child (but not the State if the child 
is a ward of the State);
    (4) An individual acting in the place of a biological or adoptive 
parent (including a grandparent, stepparent, or other relative) with 
whom the child lives, or an individual who is legally responsible for 
the child's welfare; or
    (5) A surrogate parent who has been appointed in accordance with 
Sec.  303.422 or section 639(a)(5) of the Act.
    (b)(1) Except as provided in paragraph (b)(2) of this section, the 
biological or adoptive parent, when attempting to act as the parent 
under this part and when more than one party is qualified under 
paragraph (a) of this section to act as a parent, must be presumed to 
be the parent for purposes of this section unless the biological or 
adoptive parent does not have legal authority to make health, 
educational or early intervention services decisions for the child.
    (2) If a judicial decree or order identifies a specific person or 
persons under paragraphs (a)(1) through (a)(4) of this section to act 
as the ``parent'' of a child or to make health, educational, or early 
intervention service decisions on behalf of a child, then the person or 
persons must be determined to be the ``parent'' for purposes of Part C 
of the Act, except that an EIS provider or public agency that provides 
early intervention or other services to a child or any family member of 
that child may not act as the parent.

(Authority: 20 U.S.C. 1401(23), 1439(a)(5))

Sec.  303.28  Parent training and information center.

    Parent training and information center means a center assisted 
under section 671 or 672 of the Act.

(Authority: 20 U.S.C. 1401(25))

Sec.  303.29  Personally identifiable.

    Personally identifiable means information that contains--
    (a) The name of the child, the child's parent, or other family 
member;
    (b) The address of the child or child's family;
    (c) A personal identifier, such as the child's or parent's social 
security number or student number; or
    (d) A list of personal characteristics or other information that 
would make the child's or parent's identity easily traceable.

(Authority: 20 U.S.C. 1415, 1439)

Sec.  303.30  Public agency.

    Public agency includes the lead agency and any other agency or 
political

[[Page 26503]]

subdivision of the State that is responsible for providing early 
intervention services to infants and toddlers with disabilities under 
this part and their families.

(Authority: 20 U.S.C. 1435(a)(10))

Sec.  303.31  Qualified personnel.

    Qualified personnel means personnel who have met State approved or 
recognized certification, licensing, registration, or other comparable 
requirements that apply to the area in which the individuals are 
providing early intervention services.

(Authority: 20 U.S.C. 1432(4))

Sec.  303.32  Secretary.

    Secretary means the Secretary of Education.

(Authority: 20 U.S.C. 1401(28))

Sec.  303.33  Service coordination services (case management).

    (a) Service coordination services means services provided by a 
service coordinator to assist and enable an infant or toddler with a 
disability and the child's family to receive the rights, procedural 
safeguards, and services that are authorized to be provided under Part 
C of the Act, including--
    (1) Coordinating all services required under this part across 
agency lines;
    (2) Assisting parents of infants and toddlers with disabilities in 
gaining access to and coordinating the provision of the early 
intervention services and coordinating other services identified in the 
IFSP under Sec.  303.344(e) that are needed or are being provided to 
the infant or toddler with a disability and that child's family; and
    (3) Serving as the single point of contact for carrying out the 
activities described in paragraph (b) of this section.
    (b) The term includes--
    (1) Coordinating the performance of evaluations and assessments;
    (2) Facilitating and participating in the development, review, and 
evaluation of IFSPs;
    (3) Assisting families in identifying available EIS providers;
    (4) Coordinating and monitoring the delivery of services required 
under this part;
    (5) Informing families of their rights and procedural safeguards, 
as set forth in subpart E of this part and related resources;
    (6) Coordinating the funding sources for services required under 
this part; and
    (7) Facilitating the development of a transition plan to preschool, 
school, or other services, if appropriate.
    (c) The lead agency's or an EIS provider's use of the term service 
coordination or service coordination services does not preclude 
characterization of the services as case management or any other 
service that is covered by another payor of last resort (including 
Medicaid), for purposes of claims in compliance with the requirements 
of proposed Sec.  303.501 (Payor of last resort).

(Authority: 20 U.S.C. 1432(4), 1435(a)(4), 1436(d)(7))

Sec.  303.34  State.

    Except as provided in Sec.  303.732(d)(3) (regarding State 
allotments under this part), State means each of the 50 States, the 
Commonwealth of Puerto Rico, the District of Columbia, and the 
jurisdictions of Guam, American Samoa, the United States Virgin 
Islands, and the Commonwealth of the Northern Mariana Islands.

(Authority: 20 U.S.C. 1401(31))

Sec.  303.35  State educational agency.

    (a) State educational agency or SEA means the State board of 
education or other agency or officer primarily responsible for the 
State supervision of public elementary schools and secondary schools, 
or, if there is no such officer or agency, an officer or agency 
designated by the Governor or by State law.
    (b) The term includes the agency that receives funds under sections 
611 and 619 of the Act to administer the State's responsibilities under 
Part B of the Act.

(Authority: 20 U.S.C. 1401(32))

Sec.  303.36  Ward of the State.

    (a) General. Subject to paragraph (b) of this section, ward of the 
State means a child who, as determined by the State where the child 
resides, is--
    (1) A foster child;
    (2) A ward of the State; or
    (3) In the custody of a public child welfare agency.
    (b) Exception. Ward of the State does not include a foster child 
who has a foster parent who meets the definition of a parent in Sec.  
303.27.

(Authority: 20 U.S.C. 1401(36))

Subpart B--State Eligibility for a Grant and Requirements for a 
Statewide System

General Authority and Eligibility


Sec.  303.100  General authority.

    The Secretary, in accordance with Part C of the Act, makes grants 
to States (from their allotments under section 643 of the Act) to 
assist each State to maintain and implement a statewide, comprehensive, 
coordinated, multidisciplinary, interagency system to provide early 
intervention services for infants and toddlers with disabilities and 
their families.

(Authority: 20 U.S.C. 1433)

Sec.  303.101  State eligibility--requirements for a grant under this 
part.

    In order to be eligible for a grant under Part C of the Act for any 
fiscal year, a State must meet the following conditions:
    (a) Assurances regarding early intervention services and a 
statewide system. The State must provide assurances to the Secretary 
that--
    (1) The State has adopted a policy that appropriate early 
intervention services are available to all infants and toddlers with 
disabilities in the State and their families, including--
    (i) Indian infants and toddlers with disabilities and their 
families residing on a reservation geographically located in the State;
    (ii) Infants and toddlers with disabilities who are homeless 
children and their families; and
    (iii) Infants and toddlers with disabilities who are wards of the 
State; and
    (2) The State has in effect a statewide system of early 
intervention services that meets the requirements of section 635 of the 
Act, including, at a minimum, the components required in Sec. Sec.  
303.111 through 303.126.
    (b) State application and assurances. The State must provide 
information and assurances to the Secretary, in accordance with subpart 
C of this part, including--
    (1) Information that shows that the State meets the State 
application requirements in Sec. Sec.  303.200 through 303.212; and
    (2) Assurances that the State also meets the requirements in 
Sec. Sec.  303.221 through 303.227.

(Authority: 20 U.S.C. 1434, 1435, 1437)

State Conformity With Part C of the Act and Abrogation of State 
Sovereign Immunity


Sec.  303.102  State conformity with Part C of the Act.

    Each State that receives funds under Part C of the Act must ensure 
that any State rules, regulations, and policies relating to this part 
conform to the purposes and requirements of this part.

(Authority: 20 U.S.C. 1407(a)(1))

Sec.  303.103  Abrogation of State sovereign immunity.

    (a) General. A State is not immune under the 11th amendment of the

[[Page 26504]]

Constitution of the United States from suit in Federal court for a 
violation of Part C of the Act.
    (b) Remedies. In a suit against a State for a violation of Part C 
of the Act, remedies (including remedies both at law and in equity) are 
available for such a violation to the same extent as those remedies are 
available for such a violation in the suit against any public entity 
other than a State.
    (c) Effective date. Paragraphs (a) and (b) of this section apply 
with respect to violations that occur in whole or part after October 
30, 1990, the date of enactment of the Education of the Handicapped Act 
Amendments of 1990.

(Authority: 20 U.S.C. 1403)

Equipment and Construction


Sec.  303.104  Acquisition of equipment and construction or alteration 
of facilities.

    (a) General. If the Secretary determines that a program authorized 
under Part C of the Act will be improved by permitting program funds to 
be used to acquire appropriate equipment, or to construct new 
facilities or alter existing facilities, the Secretary may allow the 
use of those funds for those purposes.
    (b) Compliance with certain regulations. Any construction of new 
facilities or alteration of existing facilities under paragraph (a) of 
this section must comply with the requirements of--
    (1) Appendix A of part 36 of title 28, Code of Federal Regulations 
(commonly known as the ``Americans with Disabilities Accessibility 
Guidelines for Buildings and Facilities''); or
    (2) Appendix A of subpart 101-19.6 of title 41, Code of Federal 
Regulations (commonly known as the ``Uniform Federal Accessibility 
Standards'').

(Authority: 20 U.S.C. 1404)

Positive Efforts to Employ and Advance Qualified Individuals with 
Disabilities


Sec.  303.105  Positive efforts to employ and advance qualified 
individuals with disabilities.

    Each recipient of assistance under Part C of the Act must make 
positive efforts to employ and advance in employment, qualified 
individuals with disabilities in programs assisted under Part C of the 
Act.

(Authority: 20 U.S.C. 1405)

Minimum Components of a Statewide System


Sec.  303.110  Minimum components of a statewide system.

    Each statewide system (system) must include, at a minimum, the 
components described in Sec. Sec.  303.111 through 303.126.

(Authority: 20 U.S.C. 1435(a))

Sec.  303.111  State definition of developmental delay.

    Each system must include the State's rigorous definition of 
developmental delay, consistent with Sec. Sec.  303.10 and 303.203(c), 
that will be used by the State in carrying out programs under Part C of 
the Act in order to appropriately identify infants and toddlers with 
disabilities who are in need of services under Part C of the Act. The 
definition must--
    (a) Describe, for each of the areas listed in Sec.  303.18(a)(1), 
the evaluation and assessment procedures, consistent with Sec.  
303.320, that will be used to measure a child's development; and
    (b) Specify the level of developmental delay in functioning or 
other comparable criteria that constitute a developmental delay in one 
or more of the developmental areas identified in Sec.  303.21(a)(1).

(Authority: 20 U.S.C. 1435(a)(1))

Sec.  303.112  Availability of early intervention services.

    Each system must include a State policy that is in effect and that 
ensures that appropriate early intervention services are based on 
scientifically based research, to the extent practicable, and are 
available to all infants and toddlers with disabilities and their 
families, including--
    (a) Indian infants and toddlers with disabilities and their 
families residing on a reservation geographically located in the State; 
and
    (b) Infants and toddlers with disabilities who are homeless 
children and their families.

(Authority: 20 U.S.C. 1435(a)(2))

Sec.  303.113  Evaluation, assessment, and nondiscriminatory 
procedures.

    (a) Subject to paragraph (b) of this section, each system must 
ensure the performance of--
    (1) A timely, comprehensive, multidisciplinary evaluation of the 
functioning of each infant or toddler with a disability in the State; 
and
    (2) A family-directed identification of the needs of the family of 
the infant or toddler, to assist appropriately in the development of 
the infant or toddler.
    (b) The evaluation and family-directed identification required in 
paragraph (a) of this section must meet the requirements of Sec.  
303.320.

(Authority: 20 U.S.C. 1435(a)(3))

Sec.  303.114  Individualized family service plans (IFSPs).

    Each system must include, for each infant or toddler with a 
disability in the State, an IFSP that meets the requirements of 
Sec. Sec.  303.340 through 303.345, including service coordination 
services in accordance with the IFSP.

(Authority: 20 U.S.C. 1435(a)(4))

Sec.  303.115  Comprehensive child find system.

    Each system must include a comprehensive child find system that 
meets the requirements in Sec. Sec.  303.301 through 303.303.

(Authority: 20 U.S.C. 1435(a)(5))

Sec.  303.116  Public awareness program.

    Each system must include a public awareness program that--
    (a) Focuses on early identification of infants and toddlers with 
disabilities; and
    (b) Provides information to parents of infants and toddlers through 
primary referral sources in accordance with Sec.  303.300.

(Authority: 20 U.S.C. 1435(a)(6))

Sec.  303.117  Central directory.

    Each system must include a central directory that is accessible to 
the general public (i.e., through the lead agency's Web site and other 
appropriate means) and includes accurate, up-to-date information 
about--
    (a) Public and private early intervention services, resources, and 
experts available in the State;
    (b) Professional and other groups (including parent support and 
training and information centers, such as those funded under the Act) 
that provide assistance to infants and toddlers with disabilities 
eligible under Part C of the Act and their families; and
    (c) Research and demonstration projects being conducted in the 
State relating to infants and toddlers with disabilities.

(Authority: 20 U.S.C. 1435(a)(7))

Sec.  303.118  Comprehensive system of personnel development (CSPD).

    Each system must include a comprehensive system of personnel 
development, including the training of paraprofessionals and the 
training of primary referral sources with respect to the basic 
components of early intervention services available in the State, 
that--
    (a) Must include--
    (1) Implementing innovative strategies and activities for the 
recruitment and retention of EIS providers;
    (2) Promoting the preparation of EIS providers who are fully and

[[Page 26505]]

appropriately qualified to provide early intervention services under 
this part; and
    (3) Training personnel to coordinate transition services for 
infants and toddlers with disabilities who are transitioning from an 
early intervention services program under Part C of the Act to a 
preschool program under section 619 of the Act, Head Start, Early Head 
Start, an elementary school program under Part B of the Act or another 
appropriate program; and
    (b) May include--
    (1) Training personnel to work in rural and inner-city areas;
    (2) Training personnel in the emotional and social development of 
young children; and
    (3) Training personnel to support families in participating fully 
in the development and implementation of the child's IFSP.

(Authority: 20 U.S.C. 1435(a)(8))

Sec.  303.119  Personnel standards.

    (a) General. Each system must include policies and procedures 
relating to the establishment and maintenance of qualification 
standards to ensure that personnel necessary to carry out the purposes 
of this part are appropriately and adequately prepared and trained.
    (b) Qualification standards. The policies and procedures required 
in paragraph (a) of this section must provide for the establishment and 
maintenance of qualification standards that are consistent with any 
State-approved or State-recognized certification, licensing, 
registration, or other comparable requirements that apply to the 
profession, discipline, or area in which personnel are providing early 
intervention services.
    (c) Use of paraprofessionals and assistants. Nothing in Part C of 
the Act may be construed to prohibit the use of paraprofessionals and 
assistants who are appropriately trained and supervised in accordance 
with State law, regulation, or written policy, to assist in the 
provision of early intervention services under Part C of the Act to 
infants and toddlers with disabilities.
    (d) Policy to address shortage of personnel. A State may adopt a 
policy that includes making ongoing good-faith efforts to recruit and 
hire appropriately and adequately trained personnel to provide early 
intervention services to infants and toddlers with disabilities, 
including, in a geographic area of the State where there is a shortage 
of such personnel, the most qualified individuals available who are 
making satisfactory progress toward completing applicable course work 
necessary to meet the standards described in paragraphs (a) and (b) of 
this section.

(Authority: 20 U.S.C. 1435(a)(9), 1435(b))

Sec.  303.120  Lead agency role in supervision, monitoring, funding, 
interagency coordination, and other responsibilities.

    Each system must include a single line of responsibility in a lead 
agency designated or established by the Governor that is responsible 
for the following:
    (a)(1) The general administration and supervision of programs and 
activities receiving assistance under Part C of the Act; and
    (2) The monitoring of programs and activities used by the State to 
carry out Part C of the Act (whether or not the programs or activities 
are receiving assistance under Part C of the Act), to ensure that the 
State complies with Part C of the Act, including--
    (i) Monitoring agencies, institutions, and organizations used by 
the State to carry out Part C of the Act;
    (ii) Enforcing any obligations imposed on those agencies under Part 
C of the Act and these regulations;
    (iii) Providing technical assistance, if necessary, to those 
agencies, institutions, and organizations;
    (iv) Correcting any noncompliance identified through monitoring as 
soon as possible and in no case later than one year after the lead 
agency's identification of the noncompliance; and
    (v) Conducting the activities in paragraphs (a)(2)(i) through 
(a)(2)(iv) of this section, consistent with Sec. Sec.  303.700 through 
303.707, and any other activities required by the State under those 
sections.
    (b) The identification and coordination of all available resources 
for early intervention services within the State, including those from 
Federal, State, local, and private sources, consistent with subpart F 
of this part.
    (c) The assignment of financial responsibility in accordance with 
subpart F of this part.
    (d) The development of procedures in accordance with subpart F of 
these regulations to ensure that early intervention services are 
provided to infants and toddlers with disabilities and their families 
under Part C of the Act in a timely manner, pending the resolution of 
any disputes among public agencies or service providers.
    (e) The resolution of intra- and interagency disputes in accordance 
with subpart F of this part.
    (f) The entry into formal interagency agreements or other written 
methods of establishing financial responsibility, consistent with Sec.  
303.511, that define the financial responsibility of each agency for 
paying for early intervention services (consistent with State law) and 
procedures for resolving disputes and that include all additional 
components necessary to ensure meaningful cooperation and coordination 
as set forth in subpart F of this part.

(Authority: 20 U.S.C. 1416, 1435(a)(10), 1442)

Sec.  303.121  Policy for contracting or otherwise arranging for 
services.

    Each system must include a policy pertaining to the contracting or 
making of other arrangements with public or private individual or 
agency service providers to provide early intervention services in the 
State, consistent with the provisions of Part C of the Act, including 
the contents of the application, and the conditions of the contract or 
other arrangements. The policy must--
    (a) Include a requirement that all early intervention services must 
meet State standards and be consistent with the provisions of this 
part; and
    (b) Be consistent with The Education Department General 
Administrative Regulations in 34 CFR part 80.

(Authority: 20 U.S.C. 1435(a)(11))

Sec.  303.122  Reimbursement procedures.

    Each system must include procedures for securing the timely 
reimbursement of funds used under Part C of the Act, in accordance with 
subpart F of this part.

(Authority: 20 U.S.C. 1435(a)(12), 1440(a))

Sec.  303.123  Procedural safeguards.

    Each system must include procedural safeguards that meet the 
requirements of subpart E of this part.

(Authority: 20 U.S.C. 1435(a)(13), 1439)

Sec.  303.124  Data collection.

    (a) Each statewide system must include a system for compiling and 
reporting timely and accurate data that meets the requirements of 
paragraph (b) of this section and Sec. Sec.  303.700 through 303.702 
and 303.720 through 303.724.
    (b) The data system required in paragraph (a) of this section must 
include a description of the process that the State uses, or will use, 
to compile data on infants or toddlers with disabilities receiving 
early intervention services under this part, including a description of 
the State's sampling methods, if sampling is used, for reporting the 
data required by the Secretary under sections 616 and 618 of the Act 
and Sec. Sec.  303.700 through 303.707 and 303.720 through 303.724.

(Authority: 20 U.S.C. 1416, 1418(a)-(c), 1435(a)(14), 1442)


[[Page 26506]]




Sec.  303.125  State interagency coordinating council.

    Each system must include a State Interagency Coordinating Council 
(Council) that meets the requirements of subpart G of this part.

(Authority: 20 U.S.C. 1435(a)(15))

Sec.  303.126  Early intervention services in natural environments.

    Each system must include policies and procedures to ensure, 
consistent with Sec. Sec.  303.13(a)(8) (early intervention services), 
303.26 (natural environments), and 303.344(d)(1)(ii) (content of an 
IFSP), that early intervention services for infants and toddlers with 
disabilities are provided--
    (a) To the maximum extent appropriate, in natural environments; and
    (b) In settings other than the natural environment that are most 
appropriate, as determined by the parent and the IFSP team, only when 
early intervention services cannot be provided satisfactorily in a 
natural environment.

(Authority: 20 U.S.C. 1435(a)(16))

Subpart C--State Application and Assurances

General


Sec.  303.200  State application and assurances.

    Each application must contain--
    (a) The specific State application requirements (including 
certifications, descriptions, methods, and policies and procedures) 
required in Sec. Sec.  303.201 through 303.212; and
    (b) The assurances required in Sec. Sec.  303.220 through 303.227.

(Authority: 20 U.S.C. 1437)

Application Requirements


Sec.  303.201  Designation of lead agency.

    Each application must include a designation of the lead agency in 
the State that will be responsible for the administration of funds 
provided under this part.

(Authority: 20 U.S.C. 1437(a)(1))

Sec.  303.202  Certification regarding financial responsibility.

    Each application must include a certification to the Secretary that 
the arrangements to establish financial responsibility for the 
provision of Part C services among appropriate public agencies under 
Sec.  303.511 and the lead agency's contracts with EIS providers 
regarding financial responsibility for the provision of Part C services 
both meet the requirements in subpart F of this part (Sec. Sec.  
303.500 through 303.521) and are current as of the date of submission 
of the certification.

(Authority: 20 U.S.C. 1437(a)(2))

Sec.  303.203  Statewide system and description of services.

Each application must include--

    (a) A description of services to be provided under this part to 
infants and toddlers with disabilities and their families through the 
State's system;
    (b) The State's policies and procedures regarding the 
identification and coordination of all available resources within the 
State from Federal, State, local, and private sources (including any 
system of payments regarding the use of public insurance or benefits, 
private insurance, or family costs or fees) as required under subpart F 
of this part; and
    (c) The State's rigorous definition of developmental delay as 
required under Sec. Sec.  303.10 and 303.111.

(Authority: 20 U.S.C. 1432(3), 1432(4)(B), 1432(4)(C), 1435(a)(1), 
1435(a)(10)(B), 1437(a)(3)(A) and (B), 1440)

Sec.  303.204  Application's definition of at-risk infants and toddlers 
and description of services.

    If the State provides services under this part to at-risk infants 
and toddlers through the statewide system, the application must 
include--
    (a) The State's definition of at-risk infants and toddlers with 
disabilities who are eligible in the State for services under Part C of 
the Act (consistent with Sec. Sec.  303.5 and 303.21(b)); and
    (b) A description of the early intervention services provided under 
this part to at-risk infants and toddlers with disabilities who meet 
the State's definition described in paragraph (a) of this section.

(Authority: 20 U.S.C. 1437(a)(4))

Sec.  303.205  Description of use of funds.

    (a) General. Each State application must include a description of 
the uses for funds under this part for the fiscal year or years covered 
by the application. The description must be presented separately for 
the lead agency and the Council, and include the information required 
in paragraphs (b) through (e) of this section.
    (b) State administration funds including administrative positions. 
For lead agencies other than State educational agencies (SEAs), each 
application must include the total--
    (1) Amount of funds retained by the lead agency for administration 
purposes, including the amount in paragraph (b)(2) of this section; and
    (2) Number of full-time equivalent administrative positions to be 
used to implement Part C of the Act, and the total amount of salaries 
(including benefits) for those positions.
    (c) Maintenance and implementation activities. Each application 
must include a description of the nature and scope of each major 
activity to be carried out under this part, consistent with Sec.  
303.501, and the approximate amount of funds to be spent for each 
activity.
    (d) Direct services. Each application must include a description of 
any direct services that the State expects to provide to infants and 
toddlers with disabilities and their families with funds under this 
part, consistent with Sec.  303.501, and the approximate amount of 
funds under this part to be used for the provision of each direct 
service.
    (e) Activities by other agencies. If other agencies are to receive 
funds under this part, the application must include--
    (1) The name of each agency expected to receive funds;
    (2) The approximate amount of funds each agency will receive; and
    (3) A summary of the purposes for which the funds will be used.

(Authority: 20 U.S.C. 1435(a)(10)(B), 1435(a)(10)(F), 1437(a)(3), 
1437(a)(5))

Sec.  303.206  Referral policies for specific children.

    Each application must include the State's policies and procedures 
that require the referral for early intervention services under this 
part of specific children under the age of three, as described in Sec.  
303.302(b).

(Authority: 20 U.S.C. 1437(a)(6))

Sec.  303.207  Availability of resources.

    Each application must include a description of the procedure used 
by the State to ensure that resources are made available under this 
part for all geographic areas within the State.

(Authority: 20 U.S.C. 1437(a)(7))

Sec.  303.208  Public participation policies and procedures.

    (a) Each application must include a description of the State's 
policies and procedures that ensure that--
    (1) Before adopting any new or revised policies and procedures 
needed to comply with Part C of the Act (including any amendments to 
those policies and procedures), the lead agency holds public hearings, 
gives adequate notice of the hearings, and provides an opportunity for 
comment by the general public, including individuals with disabilities 
and parents of infants and toddlers with disabilities;
    (2) Before submitting a State application under this part 
(including

[[Page 26507]]

any policies, procedures, descriptions, methods, certifications and 
assurances required in subparts B and C of this part), the State--
    (i) Complies with the public participation requirements in 
paragraph (a) of this section; and
    (ii) Publishes each proposed application, policy or procedure to--
    (A) Ensure circulation throughout the State, at least 60 days 
before the date on which the application, policy or procedure is 
submitted to the Secretary; and
    (B) Provide an opportunity for public comment for at least 30 days 
during that 60-day period.
    (b) Before implementing any policies, procedures, and methods that 
are subject to the public participation requirements in this section 
and required to be submitted to the Secretary under subparts B and C of 
this part, the State must have approval by the Secretary.

(Authority: 20 U.S.C. 1437(a)(8))

Sec.  303.209  Transition to preschool and other programs.

    (a) Application requirements. Each State must include the following 
in its application:
    (1) A description of the policies and procedures it will use to 
ensure a smooth transition for toddlers with disabilities and their 
families--
    (i) From receiving early intervention services under this part 
(including toddlers receiving services under Sec.  303.211) to 
preschool, school, or other appropriate services; or
    (ii) To exit the program.
    (2) A description of how the State will meet each of the 
requirements in paragraphs (b) through (d) of this section.
    (3)(i)(A) If the lead agency is not the SEA, an interagency 
agreement between the lead agency and the SEA; or
    (B) If the lead agency is the SEA, an intra-agency agreement 
between the program within that agency that administers Part C of the 
Act and the program within the agency that administers section 619 of 
the Act.
    (ii) To ensure a seamless transition between services under this 
part and under Part B of the Act, an interagency agreement under 
paragraph (a)(3)(i)(A) of this section or an intra-agency agreement 
under paragraph (a)(3)(i)(B) of this section must include provisions 
for how the lead agency and the SEA will meet the requirements of Sec.  
303.209(b) through (d) and Sec.  303.344(h), and 34 CFR 300.124, 
300.321(f) and 300.323(b).
    (4) Any policy the lead agency has adopted under Sec.  303.401(e).
    (b) Family involvement and notification of the LEA. The State lead 
agency must ensure that--
    (1) Each family of a toddler with a disability who is served under 
this part will be included in the transition plan required under this 
section and Sec.  303.344(h);
    (2)(i) Except as provided in paragraph (b)(3) of this section, at 
least nine months before the third birthday of the toddler with a 
disability, the lead agency will notify the LEA for the area in which 
the toddler resides--or, if appropriate, the SEA--that the toddler on 
his or her third birthday will reach the age of eligibility for 
preschool or school services under Part B of the Act, as determined in 
accordance with State law; or
    (ii) Except as provided in paragraph (b)(3) of this section, if the 
lead agency determines within the nine-month period before the third 
birthday of a toddler with a disability the initial eligibility of the 
toddler for early intervention services under Part C of the Act, the 
lead agency, as soon as possible after determining the child's 
eligibility, will notify the LEA for the area in which the toddler with 
a disability resides--or, if appropriate, the SEA--that the toddler on 
his or her third birthday will reach the age of eligibility for 
preschool or school services under Part B of the Act, as determined in 
accordance with State law; and
    (3) If the State has adopted, under Sec.  303.401(e), a policy 
permitting a parent to object to disclosure of personally identifiable 
information, the notification requirement in paragraphs (b)(2)(i) and 
(ii) of this section must be consistent with this policy.
    (c) Conference to discuss services. The State lead agency must 
ensure the following:
    (1) If a toddler with a disability may be eligible for preschool 
services or other services under Part B of the Act, the lead agency, 
with the approval of the family of the toddler, will convene a 
conference among the lead agency, the family, and the LEA not fewer 
than 90 days--and, at the discretion of all of the parties, not more 
than nine months--before the toddler's third birthday to discuss any 
services the toddler may receive under Part B of the Act.
    (2) If a toddler with a disability may not be eligible for 
preschool or other services under Part B of the Act, the lead agency, 
with the approval of the family of the toddler, will make reasonable 
efforts to convene a conference among the lead agency, the family, and 
providers of other appropriate services for this toddler to discuss 
appropriate services that the toddler may receive.
    (d) Program options and transition plan. The State lead agency must 
ensure that--
    (1) It will review the program options for the toddler with a 
disability for the period from the toddler's third birthday through the 
remainder of the school year;
    (2) It will establish a transition plan not fewer than 90 days--
and, at the discretion of all of the parties, not more than nine 
months--before the toddler's third birthday; and
    (3) The plan will include, consistent with Sec.  303.344(h), as 
appropriate--
    (i) Steps for the toddler with a disability and his or her family 
to exit from the program; and
    (ii) Any transition services needed by that toddler and his or her 
family.

(Authority: 20 U.S.C. 1437(a)(9))

Sec.  303.210  Coordination with Head Start and Early Head Start, early 
education, and child care programs.

    Each application must contain a description of State efforts to 
promote collaboration among Head Start and Early Head Start programs 
under the Head Start Act (42 U.S.C. 9801 et seq.), early education and 
child care programs, and services under this part.

(Authority: 20 U.S.C. 1437(a)(10))

Sec.  303.211  State option to make services under this part available 
to children ages three and older.

    (a) General. (1) Subject to paragraphs (a)(2) and (b) of this 
section, a State may elect to include in its application for a grant 
under this part a State policy, developed and implemented jointly by 
the lead agency and the SEA, under which parents of children with 
disabilities who are eligible for services under section 619 of the Act 
and who previously received early intervention services under this 
part, may choose the continuation of early intervention services under 
this part for their children ages three and older until the children 
enter, or are eligible under State law to enter, kindergarten or 
elementary school.
    (2) A State that adopts the policy described in paragraph (a)(1) of 
this section may determine whether it applies to children with 
disabilities ages three through five inclusive, or to one of the 
following three subsets of that age range:
    (i) From age three until the beginning of the school year following 
the child's third birthday.
    (ii) From age three until the beginning of the school year 
following the child's fourth birthday.

[[Page 26508]]

    (iii) From age three until the beginning of the school year 
following the child's fifth birthday.
    (b) Requirements. If a State's application for a grant under this 
part includes the State policy described in paragraph (a) of this 
section, the system must ensure the following:
    (1) Parents of children with disabilities served pursuant to this 
section are provided annual notice that contains--
    (i) A description of the rights of the parents to elect to receive 
services pursuant to this section or under Part B of the Act; and
    (ii) An explanation of the differences between services provided 
pursuant to this section and services provided under Part B of the Act, 
including--
    (A) The types of services and the locations at which the services 
are provided;
    (B) The procedural safeguards that apply; and
    (C) Possible costs (including the costs or fees to be charged to 
families as described in Sec. Sec.  303.520 and 303.521), if any, to 
parents of children eligible under this part.
    (2) Consistent with Sec.  303.344(d), services provided pursuant to 
this section will include an educational component that promotes school 
readiness and incorporates preliteracy, language, and numeracy skills.
    (3) The State policy will not affect the right of any child served 
pursuant to this section to receive FAPE (as that term is defined at 
Sec.  303.15) under Part B of the Act instead of early intervention 
services under Part C of the Act.
    (4) Subject to Sec.  303.430(e), all early intervention services 
outlined in the child's IFSP under Sec.  303.344 will be continued 
while any eligibility determination is being made for services under 
this section.
    (5) Informed consent must be obtained from the parents of any child 
to be served under this section, where practicable, before the child 
reaches three years of age, as to whether the parents intend to choose 
the continuation of early intervention services pursuant to this 
section for their child.
    (6) The transition timeline requirements under Sec.  303.209(c)(1) 
and (d)(2) do not apply with respect to a child who is receiving 
services under this section until not fewer than 90 days--and, at the 
discretion of all of the parties, not more than nine months--before the 
time the child is expected to no longer receive services under this 
section.
    (7) In States that adopt the option to make services under this 
part available to children ages three and older, there will be a 
referral to the Part C system, dependent upon parental consent, of a 
child under the age of three who directly experiences a substantiated 
case of trauma due to exposure to family violence (as defined in 
section 320 of the Family Violence Prevention and Services Act, 42 
U.S.C. 10401 et seq.).
    (c) Reporting requirement. If a State includes in its application a 
State policy described in paragraph (a) of this section, the State must 
submit to the Secretary, in the State's report under Sec.  303.124, the 
number and percentage of children with disabilities who are eligible 
for services under section 619 of the Act but whose parents choose for 
their children to continue to receive early intervention services under 
this part.
    (d) Available funds. The State policy described in paragraph (a) of 
this section must describe the funds (including an identification as 
Federal, State, or local funds) that will be used to ensure that the 
option described in paragraph (a) of this section is available to 
eligible children and families who provide the consent described in 
paragraph (b)(5) of this section, including fees (if any) to be charged 
to families as described in Sec. Sec.  303.520 and 303.521.
    (e) Rules of construction. (1) If a statewide system includes a 
State policy described in paragraph (a) of this section, a State that 
provides services in accordance with this section to a child with a 
disability who is eligible for services under section 619 of the Act 
will not be required to provide the child FAPE under Part B of the Act 
for the period of time in which the child is receiving services under 
this part.
    (2) Nothing in this section may be construed to require a provider 
of services under this part to provide a child served under this part 
with FAPE.

(Authority: 20 U.S.C. 1435(c), 1437(a)(11))

Sec.  303.212  Additional information and assurances.

    Each application must contain other information and assurances as 
the Secretary may reasonably require.

(Authority: 20 U.S.C. 1437(a)(11))

Assurances


Sec.  303.220  Assurances satisfactory to the Secretary.

    Each application must contain assurances satisfactory to the 
Secretary that the State has met the requirements of Sec. Sec.  303.221 
through 303.227.

(Authority: 20 U.S.C. 1437(b))

Sec.  303.221  Expenditure of funds.

    The State must ensure that Federal funds made available to the 
State under section 643 of the Act will be expended in accordance with 
the provisions of this part, including Sec.  303.501.

(Authority: 20 U.S.C. 1437(b)(1))

Sec.  303.222  Payor of last resort.

    The State must ensure that it will comply with the requirements in 
Sec. Sec.  303.501 through 303.521 in subpart F of this part.

(Authority: 20 U.S.C. 1437(b)(2))

Sec.  303.223  Control of funds and property.

    The State must ensure that--
    (a) The control of funds provided under this part, and title to 
property acquired with those funds, will be in a public agency for the 
uses and purposes provided in this part; and
    (b) A public agency will administer the funds and property.

(Authority: 20 U.S.C. 1437(b)(3))

Sec.  303.224  Reports and records.

    The State must ensure that it will--
    (a) Make reports in the form and containing the information that 
the Secretary may require; and
    (b) Keep records and afford access to those records as the 
Secretary may find necessary to ensure compliance with the requirements 
of this part, the correctness and verification of reports, and the 
proper disbursement of funds provided under this part.

(Authority: 20 U.S.C. 1437(b)(4))

Sec.  303.225  Prohibition against commingling and supplanting; 
indirect costs.

    (a) Prohibition against commingling. (1) The State must ensure that 
funds made available under this part will not be commingled with State 
funds.
    (2) Commingle means depositing or recording funds in a general 
account without the ability to identify each specific source of funds 
for any expenditure.
    (b) Requirement to supplement and not supplant State funds. (1)(i) 
The State must ensure that Federal funds made available under this part 
will be used to supplement and increase the level of State and local 
funds expended for infants and toddlers with disabilities and their 
families and in no case to supplant those State and local funds.
    (ii) To meet the requirement in paragraph (b)(1)(i) of this 
section, the total amount of State and local funds budgeted for 
expenditures in the current fiscal year for early intervention services 
for infants and toddlers with disabilities and their families must be 
at least equal to the total amount of State and local

[[Page 26509]]

funds actually expended for early intervention services for these 
infants and toddlers and their families in the most recent preceding 
fiscal year for which the information is available.
    (2) The State may reduce the level of expenditures under Part C of 
the Act below the level of those expenditures for the preceding fiscal 
year if the reduction is attributable to any of the following:
    (i) A decrease in the number of infants and toddlers who are 
eligible to receive early intervention services under this part.
    (ii) The termination of costly expenditures for long-term 
purchases, such as the acquisition of equipment and the construction of 
facilities.
    (iii) The voluntary departure, by retirement or otherwise, or 
departure for just cause, of personnel under Part C of the Act.
    (iv) The termination of the obligation of the lead agency, 
consistent with this part, to make available early intervention 
services to a particular infant or toddler with a disability that are 
exceptionally costly, as determined by the lead agency, because the 
infant or toddler--
    (A) Has left the State;
    (B) Has reached the age at which the obligation of the lead agency 
to make available early intervention services has terminated; or
    (C) No longer needs early intervention services.
    (c) Requirement regarding indirect costs. (1) Except as provided in 
paragraph (c)(2) of this section, a lead agency under this part may not 
charge indirect costs to its Part C grant.
    (2) If approved by the lead agency's cognizant Federal agency or by 
the Secretary, the lead agency must charge indirect costs through 
either--
    (i) A restricted indirect cost rate that meets the requirements in 
34 CFR 76.560 through 76.569; or
    (ii) A cost allocation plan that meets the non-supplanting 
requirements in paragraph (b) of this section and 34 CFR part 76 of 
EDGAR.
    (3) In charging indirect costs under paragraphs (c)(2)(i) and (ii) 
of this section, the lead agency may not charge rent, occupancy, or 
space maintenance costs directly to the Part C grant, unless those 
costs are specifically approved in advance by the Secretary.

(Authority: 20 U.S.C. 1437(b)(5))

Sec.  303.226  Fiscal control.

    The State must ensure that fiscal control and fund accounting 
procedures will be adopted as may be necessary to ensure proper 
disbursement of, and accounting for, Federal funds paid under this 
part.

(Authority: 20 U.S.C. 1437(b)(6))

Sec.  303.227  Traditionally underserved groups.

    The State must ensure that policies and practices have been adopted 
to ensure--
    (a) That traditionally underserved groups, including minority, low-
income, homeless, and rural families and children with disabilities who 
are wards of the State, are meaningfully involved in the planning and 
implementation of all the requirements of this part; and
    (b) That these families have access to culturally competent 
services within their local geographical areas.

(Authority: 20 U.S.C. 1437(b)(7))

Subsequent Applications and Modifications, Eligibility Determinations, 
and Standard of Disapproval


Sec.  303.228  Subsequent State application and modifications of 
application.

    (a) Subsequent State application. If a State has on file with the 
Secretary a policy, procedure, method, or assurance that demonstrates 
that the State meets an application requirement in this part, including 
any policy, procedure, or method filed under this part (as in effect 
before the date of enactment of the Act, December 3, 2004), the 
Secretary considers the State to have met that requirement for purposes 
of receiving a grant under this part.
    (b) Modification of application. An application submitted by a 
State that meets the requirements of this part remains in effect until 
the State submits to the Secretary such modifications as the State 
determines necessary. The provisions of this section apply to a 
modification of an application to the same extent and in the same 
manner as this paragraph applies to the original application.
    (c) Modifications required by the Secretary. The Secretary may 
require a State to modify its application under this part to the extent 
necessary to ensure the State's compliance with this part if--
    (1) An amendment is made to the Act, or to a Federal regulation 
issued under the Act;
    (2) A new interpretation of the Act is made by a Federal court or 
the State's highest court; or
    (3) An official finding of noncompliance with Federal law or 
regulations is made with respect to the State.

(Authority: 20 U.S.C. 1437(d)-(f))

Sec.  303.229  Determination by the Secretary that a State is eligible.

    If the Secretary determines that a State is eligible to receive a 
grant under Part C of the Act, the Secretary notifies the State of that 
determination.

(Authority: 20 U.S.C. 1437)

Sec.  303.230  Standard for disapproval of an application.

    The Secretary does not disapprove an application under this part 
unless the Secretary determines, after notice and opportunity for a 
hearing in accordance with the procedures in Sec. Sec.  303.231 through 
303.236, that the application fails to comply with the requirements of 
this part.

(Authority: 20 U.S.C. 1437(c))

Department Procedures


Sec.  303.231  Notice and hearing before determining that a State is 
not eligible.

    (a) General. (1) The Secretary does not make a final determination 
that a State is not eligible to receive a grant under Part C of the Act 
until providing the State--
    (i) With reasonable notice; and
    (ii) With an opportunity for a hearing.
    (2) In implementing paragraph (a)(1)(i) of this section, the 
Secretary sends a written notice to the lead agency by certified mail 
with a return receipt requested.
    (b) Content of notice. In the written notice described in paragraph 
(a)(2) of this section, the Secretary--
    (1) States the basis on which the Secretary proposes to make a 
final determination that the State is not eligible;
    (2) May describe possible options for resolving the issues;
    (3) Advises the lead agency that it may request a hearing and that 
the request for a hearing must be made not later than 30 days after it 
receives the notice of the proposed final determination that the State 
is not eligible; and
    (4) Provides the lead agency with information about the hearing 
procedures that will be followed.

(Authority: 20 U.S.C. 1437(c))

Sec.  303.232  Hearing Official or Panel.

    (a) If the lead agency requests a hearing, the Secretary designates 
one or more individuals, either from the Department or elsewhere, not 
responsible for or connected with the administration of this program, 
to conduct a hearing.
    (b) If more than one individual is designated, the Secretary 
designates one of those individuals as the Chief Hearing Official of 
the Hearing Panel. If

[[Page 26510]]

one individual is designated, that individual is the Hearing Official.

(Authority: 20 U.S.C. 1437(c))

Sec.  303.233  Hearing procedures.

    (a) As used in Sec. Sec.  303.231 through 303.236 the term party or 
parties means any of the following:
    (1) A lead agency that requests a hearing regarding the proposed 
disapproval of the State's eligibility under this part.
    (2) The Department official who administers the program of 
financial assistance under this part.
    (3) A person, group, or agency with an interest in and having 
relevant information about the case that has applied for and been 
granted leave to intervene by the Hearing Official or Hearing Panel.
    (b) Within 15 days after receiving a request for a hearing, the 
Secretary designates a Hearing Official or Hearing Panel and notifies 
the parties.
    (c) The Hearing Official or Hearing Panel may regulate the course 
of proceedings and the conduct of the parties during the proceedings. 
The Hearing Official or Panel takes all steps necessary to conduct a 
fair and impartial proceeding, to avoid delay, and to maintain order, 
including the following:
    (1) The Hearing Official or Hearing Panel may hold conferences or 
other types of appropriate proceedings to clarify, simplify, or define 
the issues or to consider other matters that may aid in the disposition 
of the case.
    (2) The Hearing Official or Hearing Panel may schedule a prehearing 
conference with the Hearing Official or Hearing Panel and the parties.
    (3) Any party may request the Hearing Official or Hearing Panel to 
schedule a prehearing or other conference. The Hearing Official or 
Hearing Panel decides whether a conference is necessary and notifies 
all parties.
    (4) At a prehearing or other conference, the Hearing Official or 
Hearing Panel and the parties may consider subjects such as--
    (i) Narrowing and clarifying issues;
    (ii) Assisting the parties in reaching agreements and stipulations;
    (iii) Clarifying the positions of the parties;
    (iv) Determining whether an evidentiary hearing or oral argument 
should be held; and
    (v) Setting dates for--
    (A) The exchange of written documents;
    (B) The receipt of comments from the parties on the need for oral 
argument or an evidentiary hearing;
    (C) Further proceedings before the Hearing Official or Hearing 
Panel (including an evidentiary hearing or oral argument, if either is 
scheduled);
    (D) Requesting the names of witnesses each party wishes to present 
at an evidentiary hearing and estimation of time for each presentation; 
and
    (E) Completion of the review and the initial decision of the 
Hearing Official or Hearing Panel.
    (5) A prehearing or other conference held under paragraph (c)(4) of 
this section may be conducted by telephone conference call.
    (6) At a prehearing or other conference, the parties must be 
prepared to discuss the subjects listed in paragraph (c)(4) of this 
section.
    (7) Following a prehearing or other conference the Hearing Official 
or Hearing Panel may issue a written statement describing the issues 
raised, the action taken, and the stipulations and agreements reached 
by the parties.
    (d) The Hearing Official or Hearing Panel may require parties to 
state their positions and to provide all or part of their evidence in 
writing.
    (e) The Hearing Official or Hearing Panel may require parties to 
present testimony through affidavits and to conduct cross-examination 
through interrogatories.
    (f) The Hearing Official or Hearing Panel may direct the parties to 
exchange relevant documents or information and lists of witnesses, and 
to send copies to the Hearing Official or Hearing Panel.
    (g) The Hearing Official or Hearing Panel may receive, rule on, 
exclude, or limit evidence at any stage of the proceedings.
    (h) The Hearing Official or Hearing Panel may rule on motions and 
other issues at any stage of the proceedings.
    (i) The Hearing Official or Hearing Panel may examine witnesses.
    (j) The Hearing Official or Hearing Panel may set reasonable time 
limits for submission of written documents.
    (k) The Hearing Official or Hearing Panel may refuse to consider 
documents or other submissions if they are not submitted in a timely 
manner unless good cause is shown.
    (l) The Hearing Official or Hearing Panel may interpret applicable 
statutes and regulations but may not waive them or rule on their 
validity.
    (m)(1) The parties must present their positions through briefs and 
the submission of other documents and may request an oral argument or 
evidentiary hearing. The Hearing Official or Hearing Panel must 
determine whether an oral argument or an evidentiary hearing is needed 
to clarify the positions of the parties.
    (2) The Hearing Official or Hearing Panel gives each party an 
opportunity to be represented by counsel.
    (n) If the Hearing Official or Hearing Panel determines that an 
evidentiary hearing would materially assist the resolution of the 
matter, the Hearing Official or Hearing Panel gives each party, in 
addition to the opportunity to be represented by counsel--
    (1) An opportunity to present witnesses on the party's behalf; and
    (2) An opportunity to cross-examine witnesses either orally or with 
written questions.
    (o) The Hearing Official or Hearing Panel accepts any evidence that 
it finds is relevant and material to the proceedings and is not unduly 
repetitious.
    (p)(1) The Hearing Official or Hearing Panel--
    (i) Arranges for the preparation of a transcript of each hearing;
    (ii) Retains the original transcript as part of the record of the 
hearing; and
    (iii) Provides one copy of the transcript to each party.
    (2) Additional copies of the transcript are available on request 
and with payment of the reproduction fee.
    (q) Each party must file with the Hearing Official or Hearing Panel 
all written motions, briefs, and other documents and must at the same 
time provide a copy to the other parties to the proceedings.

(Authority: 20 U.S.C. 1437(c))

Sec.  303.234  Initial decision; final decision.

    (a) The Hearing Official or Hearing Panel prepares an initial 
written decision that addresses each of the points in the notice sent 
by the Secretary to the lead agency under Sec.  303.231, including any 
amendments to or further clarification of the issues under Sec.  
303.233(c).
    (b) The initial decision of a Hearing Panel is made by a majority 
of Hearing Panel members.
    (c) The Hearing Official or Hearing Panel mails, by certified mail 
with return receipt requested, a copy of the initial decision to each 
party (or to the party's counsel) and to the Secretary, with a notice 
stating that each party has an opportunity to submit written comments 
regarding the decision to the Secretary.
    (d) Each party may file comments and recommendations on the initial 
decision with the Hearing Official or Hearing Panel within 15 days of 
the date the party receives the Panel's decision.
    (e) The Hearing Official or Hearing Panel sends a copy of a party's 
initial comments and recommendations to the other parties by certified 
mail with return receipt requested. Each party may file responsive 
comments and recommendations with the Hearing

[[Page 26511]]

Official or Hearing Panel within seven days of the date the party 
receives the initial comments and recommendations.
    (f) The Hearing Official or Hearing Panel forwards the parties' 
initial and responsive comments on the initial decision to the 
Secretary who reviews the initial decision and issues a final decision.
    (g) The initial decision of the Hearing Official or Hearing Panel 
becomes the final decision of the Secretary unless, within 25 days 
after the end of the time for receipt of written comments, the 
Secretary informs the Hearing Official or Hearing Panel and the parties 
to a hearing in writing that the decision is being further reviewed for 
possible modification.
    (h) The Secretary rejects or modifies the initial decision of the 
Hearing Official or Hearing Panel if the Secretary finds that it is 
clearly erroneous.
    (i) The Secretary conducts the review based on the initial 
decision, the written record, the transcript of the Hearing Official's 
or Hearing Panel's proceedings, and written comments.
    (j) The Secretary may remand the matter to the Hearing Official or 
Hearing Panel for further proceedings.
    (k) Unless the Secretary remands the matter as provided in 
paragraph (j) of this section, the Secretary issues the final decision, 
with any necessary modifications, within 30 days after notifying the 
Hearing Official or Hearing Panel that the initial decision is being 
further reviewed.

(Authority: 20 U.S.C. 1437(c))

Sec.  303.235  Filing requirements.

    (a) Any written submission by a party under Sec. Sec.  303.230 
through 303.236 must be filed with the Secretary by hand-delivery, by 
mail, or by facsimile transmission. The Secretary discourages the use 
of facsimile transmission for documents longer than five pages.
    (b) The filing date under paragraph (a) of this section is the date 
the document is--
    (1) Hand-delivered;
    (2) Mailed; or
    (3) Sent by facsimile transmission.
    (c) A party filing by facsimile transmission is responsible for 
confirming that a complete and legible copy of the document was 
received by the Department.
    (d) If a document is filed by facsimile transmission, the 
Secretary, the Hearing Official, or the Panel, as applicable, may 
require the filing of a follow-up hard copy by hand-delivery or by mail 
within a reasonable period of time.
    (e) If agreed upon by the parties, service of a document may be 
made upon the other party by facsimile transmission.

(Authority: 20 U.S.C. 1437(c))

Sec.  303.236  Judicial review.

    If a State is dissatisfied with the Secretary's final decision with 
respect to the eligibility of the State under Part C of the Act, the 
State may, not later than 60 days after notice of that decision, file 
with the United States Court of Appeals for the circuit in which that 
State is located a petition for review of that decision. A copy of the 
petition must be transmitted by the clerk of the court to the 
Secretary. The Secretary then files in the court the record of the 
proceedings upon which the Secretary's action was based, as provided in 
28 U.S.C. 2112.

(Authority: 20 U.S.C. 1437(c))

Subpart D--Child Find, Evaluations and Assessments, and 
Individualized Family Service Plans

Identification--Public Awareness, Child Find, and Referral


Sec.  303.300  Public awareness program--information for parents.

    (a) Preparation and dissemination. In accordance with Sec.  
303.116, each system must include a public awareness program that 
provides for--
    (1)(i) The lead agency's preparation of information on the 
availability of early intervention services under this part, and other 
services, as described in paragraph (b) of this section; and
    (ii) Dissemination to all primary referral sources (especially 
hospitals and physicians) of the information to be given to parents of 
infants and toddlers, including especially parents with premature 
infants, or infants with other physical risk factors associated with 
learning or developmental complications; and
    (2) Procedures for assisting the primary referral sources described 
in Sec.  303.302(c) in disseminating the information to parents of 
infants and toddlers with disabilities.
    (b) Information to be provided. The information required in 
paragraph (a) of this section must include--
    (1) A description of the availability of early intervention 
services under this part;
    (2) A description of the child find system and how to refer a child 
for an evaluation or early intervention services;
    (3) The central directory; and
    (4) For parents with toddlers with disabilities who are nearing 
transition age (e.g. starting at least nine months prior to the child's 
third birthday), a description of the availability of services under 
section 619 of the Act.

(Authority: 20 U.S.C. 1435(a)(6), 1437(a)(9))

Sec.  303.301  Comprehensive child find system.

    (a) General. Each system must include a comprehensive child find 
system that--
    (1) Is consistent with Part B of the Act (see 34 CFR Sec.  
300.115);
    (2) Includes a system for making referrals to public agencies under 
this part that--
    (i) Includes timelines; and
    (ii) Provides for participation by the primary referral sources 
described in Sec.  303.302(c);
    (3) Ensures rigorous standards for appropriately identifying 
infants and toddlers with disabilities for services under this part 
that will reduce the need for future services; and
    (4) Meets the requirements in paragraphs (b) and (c) of this 
section and Sec. Sec.  303.302 and 303.303.
    (b) Scope of child find. The lead agency, as part of the child find 
system, must ensure that--
    (1) All infants and toddlers with disabilities in the State who are 
eligible for services under this part are identified, located, and 
evaluated, including--
    (i) Indian infants and toddlers with disabilities residing on a 
reservation geographically located in the State (including 
coordination, as necessary, with tribes, tribal organization, and 
consortia to identify the information provided by them to the lead 
agency under Sec.  303.731(e)(1)); and
    (ii) Infants and toddlers with disabilities who are homeless, in 
foster care, and wards of the State; and
    (2) An effective method is developed and implemented to determine 
which children are in need of early intervention services, and which 
children are not in need of those services.
    (c) Coordination. (1) The lead agency, with the assistance of the 
Council, as defined in Sec.  303.8, must ensure that the child find 
system under this part--
    (i) Is coordinated with all other major efforts to locate and 
identify children conducted by other State agencies responsible for 
administering the various education, health, and social service 
programs relevant to this part, including Indian tribes that receive 
payments under this part, and other Indian tribes, as appropriate; and
    (ii) Is coordinated with the efforts of the--(A) Program authorized 
under Part B of the Act;
    (B) Maternal and Child Health program under Title V of the Social 
Security Act (42 U.S.C. 701(a));
    (C) Early Periodic Screening, Diagnosis and Treatment (EPSDT) under

[[Page 26512]]

Title XIX of the Social Security Act (42 U.S.C. 1396(a)(43) and 
1396(a)(4)(B));
    (D) Programs under the Developmental Disabilities Assistance and 
Bill of Rights Act of 2000 (42 U.S.C. 15001 et seq.);
    (E) Head Start Act (including Early Head Start programs under 
section 645A of the Head Start Act) (42 U.S.C. 9801 et seq.);
    (F) Supplemental Security Income program under Title XVI of the 
Social Security Act (42 U.S.C. 1381);
    (G) Child protection programs, including programs administered by, 
and services provided through, the foster care agency and the State 
agency responsible for administering the Child Abuse Prevention and 
Treatment Act (CAPTA) (42 U.S.C. 5106(a));
    (H) Child care programs in the State; and
    (I) The programs that provide services under the Family Violence 
Prevention and Services Act (42 U.S.C. 10401 et seq.) (for States 
electing to make available services under this part to children with 
disabilities after the age of three in accordance with section 
635(c)(2)(G) of the Act and Sec.  303.211.
    (2) The lead agency, with the advice and assistance of the Council, 
must take steps to ensure that--
    (i) There will not be unnecessary duplication of effort by the 
various agencies involved in the State's child find system under this 
part; and
    (ii) The State will make use of the resources available through 
each early intervention service provider in the State to implement the 
child find system in an effective manner.

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 1434(1), 1435(a)(2), 
1435(a)(5), 1435(c)(2)(G), 1437(a)(6), 1437(a)(10) and 1441)

Sec.  303.302  Referral procedures.

    (a) General. (1) The child find system described in Sec.  303.301 
must include procedures for use by primary referral sources for 
referring a child to the Part C system for--
    (i) Evaluation and assessment, in accordance with Sec.  303.320; 
and
    (ii) As appropriate, the provision of early intervention services, 
in accordance with Sec. Sec.  303.342 through 303.345.
    (2) The procedures required in paragraph (a)(1) of this section 
must--
    (i) Provide for referring a child as soon as possible after the 
child has been identified; and
    (ii) Include procedures that meet the requirements in paragraphs 
(b) and (c) of this section.
    (b) Referral of specific at-risk children. The procedures required 
in paragraph (a) of this section must provide for requiring the 
referral of a child under the age of three who--
    (1) Is involved in a substantiated case of abuse or neglect; or
    (2) Is identified as affected by illegal substance abuse, or 
withdrawal symptoms resulting from prenatal drug exposure.
    (c) Primary referral sources. As used in this subpart, primary 
referral sources include--
    (1) Hospitals, including prenatal and postnatal care facilities;
    (2) Physicians;
    (3) Parents, including parents of infants and toddlers;
    (4) Day care programs;
    (5) LEAs and schools;
    (6) Public health facilities;
    (7) Other social service agencies;
    (8) Other clinics and health care providers;
    (9) Public agencies and staff in the child welfare system including 
child protective service and foster care;
    (10) Homeless family shelters; and
    (11) Domestic violence shelters and agencies (for States electing 
to make services available under this part to children after the age of 
three in accordance with section 635(c)(2)(G) of the Act and Sec.  
303.211).

(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 1434(1), 1435(a)(2), 
1435(a)(5), 1435(a)(6), 1435(c)(2)(G), 1437(a)(6), 1437(a)(10), 
1441)

Sec.  303.303  Screening procedures.

    (a) General. (1) The child find system described in Sec.  303.301 
may include procedures for the screening of children who have been 
referred to Part C, when appropriate, to determine whether they are 
suspected of having a disability under this part. If the State lead 
agency elects to adopt screening procedures to determine if a child is 
suspected of having a disability, those procedures must meet the 
requirements of this section.
    (2) If the screening carried out under paragraph (a) of this 
section or other available information indicates that the child is 
suspected of having a disability, the child must be evaluated under 
Sec.  303.320.
    (3) If the lead agency believes, based on screening and other 
available information, that the child is not suspected of having a 
disability, the lead agency must ensure that notice is provided to the 
parent under Sec.  303.421.
    (4) If, under paragraph (a)(3) of this section, the lead agency 
determines that the child is not suspected of having a disability, but 
the parent of the child requests an evaluation, the child must be 
evaluated under Sec.  303.320.
    (b) Definition of screening procedures. Screening procedures--
    (1) Means activities under paragraph (a)(1) of this section that 
are carried out by a public agency, early intervention service 
provider, or designated primary referral source (except for parents) to 
identify infants and toddlers suspected of having a disability and in 
need of early intervention services at the earliest possible age; and
    (2) Includes the administration of appropriate instruments by 
qualified personnel that can assist in making the identification 
described in paragraph (a)(1) of this section.
    (c) Condition for evaluation or services. For every child who is 
referred to the Part C program or screened in accordance with paragraph 
(a) of this section, the lead agency is not required to--
    (1) Provide an evaluation and assessment of the child under Sec.  
303.320 unless the child is suspected of having a disability or the 
parent requests an evaluation under paragraph (a)(4) of this section; 
or
    (2) Provide early intervention services under this part unless a 
determination is made, after the evaluation and assessment conducted 
under Sec.  303.320, that the child meets the definition of infant or 
toddler with a disability under Sec.  303.21.

(Authority: 20 U.S.C. 1434(1), 1435(a)(2), 1435(a)(5) and (a)(6), 
1435(c)(2)(G), 1437(a)(6), 1439(a)(6))

Evaluation and Assessment of the Child and Family and Assessment of 
Service Needs


Sec.  303.320  Evaluation and assessment of the child and family and 
assessment of service needs.

    (a) General. (1) Each lead agency must ensure, for each child under 
the age of three who is referred for evaluation or services under this 
part and suspected of having a disability, the performance of--
    (i) A timely, comprehensive, multidisciplinary evaluation of the 
child;
    (ii) An assessment of the child;
    (iii) An assessment of the family as described in paragraph (c) of 
this section, if the parent and family concur; and
    (iv) An assessment of service needs, as described in paragraph (d) 
of this section, if the child is determined to meet the definition of 
an infant or toddler with a disability in Sec.  303.21.
    (2)(i) An evaluation is the method used to review the assessments 
of the child and the family to determine a child's initial and 
continuing eligibility under this part, consistent with the definition 
of infant or toddler with a disability in Sec.  303.21.

[[Page 26513]]

    (ii) In conducting an evaluation, no single procedure may be used 
as the sole criterion for determining a child's eligibility under this 
part.
    (iii) A child's medical and other records may be used to establish 
eligibility (without conducting an assessment of the child and the 
family) if those records contain information required under this 
section regarding the child's level of functioning in the developmental 
areas identified in Sec.  303.21(a)(1).
    (3) All evaluations and assessments of the child and family must be 
conducted by qualified personnel, in a nondiscriminatory manner, in the 
child's or family's native language (as appropriate), and selected and 
administered so as not to be racially or culturally discriminatory.
    (b) Procedures for assessment of the child--(1) Assessment of the 
child means reviewing available pertinent records that relate to the 
child's current health status and medical history and conducting 
personal observation and assessment of the child in order to identify 
the child's unique strengths and needs, including an identification of 
the child's level of functioning in each of the following developmental 
areas: cognitive development; physical development, including vision 
and hearing; communication development; social or emotional 
development; and adaptive development based on objective criteria, 
which must include informed clinical opinion.
    (2) Qualified personnel must use their informed clinical opinion to 
assess a child's present level of functioning in each of the 
developmental areas identified in Sec.  303.21(a)(1) and the lead 
agency must ensure that informed clinical opinion may be used by 
qualified personnel to establish a child's eligibility under this part 
even when other instruments do not establish eligibility, but informed 
clinical opinion may not negate the results of assessment instruments 
used under paragraph (b)(1) of this section to establish eligibility.
    (c) Procedures for assessment of the family. Assessment of the 
family means identification of the family's resources, priorities, and 
concerns, and the supports and services necessary to enhance the 
family's capacity to meet the developmental needs of the family's 
infant or toddler with a disability, as determined not just through the 
use of an assessment tool, but through a voluntary personal interview 
with the family.
    (d) Assessment of service needs. If the child meets the definition 
of infant or toddler with a disability in Sec.  303.21, an assessment 
of the service needs of the infant or toddler with a disability and the 
child's family must include a review of the evaluation (including the 
assessment of the child and family) and available pertinent records and 
conducting personal observation and assessment of the infant or toddler 
with a disability in order to identify the early intervention services 
appropriate to meet the child's unique needs in each of the 
developmental areas identified in paragraph (b)(1) of this section.
    (e) Timelines. (1)(i) Except as provided in paragraph (e)(2) of 
this section, the evaluation of the child (including any assessments of 
the child and family) and assessment of service needs, as well as the 
initial IFSP meeting, must be completed within 45 days from the date 
the lead agency obtains parental consent to conduct an evaluation of 
the child.
    (ii) Lead agencies must ensure that parental consent to conduct an 
evaluation under Sec.  303.420(a) is obtained as soon as possible once 
a child is referred for evaluation under this part.
    (2) The lead agency must develop procedures to ensure that in the 
event of exceptional circumstances that make it impossible to complete 
the evaluation (including any assessments of the child and family) and 
assessment of service needs within 45 days (e.g., if a child is ill) 
from receiving parental consent, public agencies will--
    (i) Document those circumstances; and
    (ii) Develop and implement an interim IFSP, to the extent 
appropriate and consistent with Sec.  303.345.

(Authority: 20 U.S.C. 1435(a)(3), 1435(a)(5), 1436(a)(1)-(2), 
1436(c), 1436(d)(1)-(2))

Individualized Family Service Plans (IFSPs)


Sec.  303.340  Individualized family service plans--general.

    Each lead agency must ensure, for each infant or toddler with a 
disability, the development, review, and implementation of an 
individualized family service plan or IFSP that--
    (a) Is consistent with the definition of that term in Sec.  303.20; 
and
    (b) Meets the requirements in Sec. Sec.  303.342 through 303.345 of 
this subpart.

(Authority: 20 U.S.C. 1435(a)(4), 1436)

Sec.  303.341  [Reserved]


Sec.  303.342  Procedures for IFSP development, review, and evaluation.

    (a) Meeting to develop initial IFSP-timelines. For a child who has 
been evaluated for the first time and determined to be eligible under 
this part, a meeting to develop the initial IFSP must be conducted 
within the 45-day time period in Sec.  303.320(e).
    (b) Periodic review. (1) A review of the IFSP for a child and the 
child's family must be conducted every six months, or more frequently 
if conditions warrant, or if the family requests such a review. The 
purpose of the periodic review is to determine--
    (i) The degree to which progress toward achieving the outcomes is 
being made; and
    (ii) Whether modification or revision of the outcomes or services 
is necessary.
    (2) The review may be carried out by a meeting or by another means 
that is acceptable to the parents and other participants.
    (c) Annual meeting to evaluate the IFSP. A meeting must be 
conducted on at least an annual basis to evaluate the IFSP for a child 
and the child's family, and, as appropriate, to revise its provisions. 
The results of any current evaluations conducted under Sec.  303.320, 
and other information available from the assessment of service needs 
must be used in determining what services are needed and will be 
provided.
    (d) Accessibility and convenience of meetings. (1) IFSP meetings 
must be conducted--
    (i) In settings and at times that are convenient to families; and
    (ii) In the native language of the family or other mode of 
communication used by the family, unless it is clearly not feasible to 
do so.
    (2) Meeting arrangements must be made with, and written notice 
provided to, the family and other participants early enough before the 
meeting date to ensure that they will be able to attend.
    (e) Parental consent. The contents of the IFSP must be fully 
explained to the parents and informed consent must be obtained prior to 
the provision of early intervention services described in the IFSP. The 
early intervention services for which parental consent is obtained must 
be provided.

(Authority: 20 U.S.C. 1436)

Sec.  303.343  IFSP team meetings and periodic reviews.

    (a) Initial and annual IFSP team meetings. (1) Each initial meeting 
and each annual IFSP team meeting to evaluate the IFSP must include the 
following participants:
    (i) The parent or parents of the child.
    (ii) Other family members, as requested by the parent, if feasible 
to do so.
    (iii) An advocate or person outside of the family, if the parent 
requests that the person participate.

[[Page 26514]]

    (iv) The service coordinator designated by the public agency to be 
responsible for implementation of the IFSP.
    (v) A person or persons directly involved in conducting the 
evaluations and assessments in Sec.  303.320.
    (vi) As appropriate, persons who will be providing services under 
this part to the child or family.
    (2) If a person listed in paragraph (a)(1)(v) of this section is 
unable to attend a meeting, arrangements must be made for the person's 
involvement through other means, including one of the following:
    (i) Participating in a telephone conference call.
    (ii) Having a knowledgeable authorized representative attend the 
meeting.
    (iii) Making pertinent records available at the meeting.
    (b) Periodic review. Each periodic review must provide for the 
participation of persons in paragraphs (a)(1)(i) through (a)(1)(iv) of 
this section. If conditions warrant, provisions must be made for the 
participation of other representatives identified in paragraph (a) of 
this section.

(Authority: 20 U.S.C. 1436(b))

Sec.  303.344  Content of an IFSP.

    (a) Information about the child's status. The IFSP must include a 
statement of the child's present levels of physical development 
(including vision, hearing, and health status), cognitive development, 
communication development, social or emotional development, and 
adaptive development based on the information from the child's 
evaluation and assessments conducted under Sec.  303.320.
    (b) Family information. With the concurrence of the family, the 
IFSP must include a statement of the family's resources, priorities, 
and concerns related to enhancing the development of the child as 
identified through the assessment of the family under Sec.  303.320(c).
    (c) Results or outcomes. The IFSP must include a statement of the 
measurable results or measurable outcomes expected to be achieved for 
the child (including pre-literacy and language skills, as 
developmentally appropriate for the child) and family, and the 
criteria, procedures, and timeliness used to determine--
    (1) The degree to which progress toward achieving the results or 
outcomes is being made; and
    (2) Whether modifications or revisions of the results, outcomes or 
services are necessary.
    (d) Early intervention services. (1) The IFSP must include a 
statement of the specific early intervention services, based on peer-
reviewed research (to the extent practicable), that are necessary to 
meet the unique needs of the child and the family to achieve the 
results or outcomes identified in paragraph (c) of this section, 
including--
    (i) The length, duration, frequency, intensity, and method of 
delivering the services;
    (ii)(A) The natural environment setting in which early intervention 
services will be provided (subject to paragraph (d)(1)(ii)(B) of this 
section), including, if applicable, a justification of the extent, if 
any, to which an early intervention service will not be provided in a 
natural environment.
    (B) The determination of the appropriate setting for providing 
early intervention services to an infant or toddler with a disability, 
including any justification for not providing a particular early 
intervention service in the natural environment for that child and 
service, must be--
    (1) Made by the IFSP team (which includes the parent and other team 
members);
    (2) Consistent with the provisions in Sec. Sec.  303.13(a)(8), 
303.25, and 303.126; and
    (3) Based on the child's outcomes that are identified by the IFSP 
team in paragraph (c)).
    (iii) The location of the services; and
    (iv) The payment arrangements, if any.
    (2) As used in paragraph (d)(1)(i) of this section--
    (i) Frequency and intensity mean the number of days or sessions 
that a service will be provided, and whether the service is provided on 
an individual or group basis;
    (ii) Method means how a service is provided;
    (iii) Length means the length of time the service is provided 
during each session of that service (such as an hour or other specified 
time period); and
    (iv) Duration means projecting when a given service will no longer 
be provided (such as when the child is expected to achieve the results 
or outcomes in his or her IFSP).
    (3) As used in paragraph (d)(1)(iii) of this section, location 
means the actual place or places where a service will be provided.
    (4) For children who are at least three years of age, the IFSP must 
include an educational component that promotes school readiness and 
incorporates pre-literacy, language, and numeracy skills.
    (e) Other services. To the extent appropriate, the IFSP also must--
    (1) Identify medical and other services that the child or family 
needs or is receiving through other sources, but that are neither 
required nor funded under this part; and
    (2) If those services are not currently being provided, include a 
description of the steps the service coordinator or family may take to 
assist the child and family in securing those other services.
    (f) Dates and duration of services. The IFSP must include--
    (1) The projected date for the initiation of each service in 
paragraph (d)(1) of this section, which date must be as soon as 
possible after the IFSP meetings described in Sec.  303.342; and
    (2) The anticipated duration of each service.
    (g) Service coordinator. (1) The IFSP must include the name of the 
service coordinator from the profession most immediately relevant to 
the child's or family's needs (or who is otherwise qualified to carry 
out all applicable responsibilities under this part), who will be 
responsible for the implementation of the early intervention services 
identified in a child's IFSP, including transition services, and 
coordination with other agencies and persons.
    (2) In meeting the requirements in paragraph (g)(1) of this 
section, the term ``profession'' includes ``service coordination.''
    (h) Transition from Part C services. (1) The IFSP must include the 
steps to be taken to support the transition of the child, in accordance 
with Sec.  303.209, to--
    (i) Preschool services under Part B of the Act, to the extent that 
those services are appropriate;
    (ii) Elementary school or preschool services (for children 
participating under Sec.  303.211);
    (iii) Early education, Head Start and Early Head Start or child 
care programs; or
    (iv) Other appropriate services.
    (2) The steps required in paragraph (h)(1) of this section must 
include--
    (i) Discussions with, and training of, parents, as appropriate, 
regarding future placements and other matters related to the child's 
transition;
    (ii) Procedures to prepare the child for changes in service 
delivery, including steps to help the child adjust to, and function in, 
a new setting;
    (iii) The transmission of child find information about the child to 
the LEA or other relevant agency, in accordance with Sec.  303.209(b) 
and, with parental consent, transmission of additional information to 
the LEA to ensure continuity of services, including evaluation and 
assessment information

[[Page 26515]]

required in Sec.  303.320 and copies of IFSPs that have been developed 
and implemented in accordance with Sec. Sec.  303.340 through 303.345; 
and
    (iv) Identification of transition services and other activities 
that the IFSP team determines are necessary to support the transition 
of the child.

(Authority: 20 U.S.C. 1435(a)(10)(B), 1435(a)(16), 1436(d), 
1437(a)(9)-(10), 1440)

Sec.  303.345  Provision of services before evaluations and assessments 
are completed.

    Early intervention services for an eligible child and the child's 
family may commence before the completion of the evaluation (including 
the assessment of the child and family) and assessment of service needs 
in Sec.  303.320, if the following conditions are met:
    (a) Parental consent is obtained.
    (b) An interim IFSP is developed that includes--
    (1) The name of the service coordinator who will be responsible, 
consistent with Sec.  303.344(g), for implementation of the interim 
IFSP and coordination with other agencies and persons; and
    (2) The early intervention services that have been determined to be 
needed immediately by the child and the child's family.
    (c) Evaluations and assessments are completed within the 45-day 
timeline in Sec.  303.320(e).

(Authority: 20 U.S.C. 1436(c))

Sec.  303.346  Responsibility and accountability.

    Each agency or person who has a direct role in the provision of 
early intervention services is responsible for making a good faith 
effort to assist each eligible child in achieving the outcomes in the 
child's IFSP. However, Part C of the Act does not require that any 
agency or person be held accountable if an eligible child does not 
achieve the growth projected in the child's IFSP.

(Authority: 20 U.S.C. 1436)

Subpart E--Procedural Safeguards

General


Sec.  303.400  General responsibility of lead agency for procedural 
safeguards.

    Each lead agency must--
    (a) Establish or adopt the procedural safeguards that meet the 
requirements of this subpart, including the provisions on 
confidentiality, parental consent and notice, surrogate parents, and 
dispute resolution; and
    (b) Ensure the effective implementation of the safeguards by each 
EIS provider in the State that is involved in the provision of early 
intervention services under this part.

(Authority: 20 U.S.C. 1439(a))

Confidentiality


Sec.  303.401  Confidentiality and opportunity to examine records.

    (a) General. Each State must ensure that the parent of a child 
referred under this part is afforded the right to confidentiality of 
personally identifiable information, including the right to written 
notice of, and written consent to, the exchange of that information 
among agencies, consistent with Federal and State laws.
    (b) Confidentiality procedures. Each State must have procedures in 
effect to ensure that--
    (1) EIS providers comply with the Part C confidentiality procedures 
in Sec. Sec.  303.402 through 303.417 (which contain confidentiality 
provisions that are consistent with, but broader than those under, the 
Family Educational Rights and Privacy Act (FERPA) in 20 U.S.C. 1232g 
and its regulations in 34 CFR part 99, and include additional Part C 
requirements); and
    (2) The parents of infants or toddlers who are referred to, or 
receive services under, this part are afforded the opportunity to 
inspect and review all Part C records about the child and the child's 
family that are collected, maintained, or used under this part, 
including records related to evaluations and assessments, screening, 
eligibility determinations, development and implementation of IFSPs, 
provision of early intervention services, individual complaints 
involving the child, or any part of the child's early intervention 
record under this part.
    (c) Applicability and timeframe of procedures. The confidentiality 
procedures described in paragraph (b) of this section apply to the 
personally identifiable information of a child and the child's family 
that--
    (1) Is contained in early intervention records collected, used, or 
maintained under this part by the lead agency or an EIS provider; and
    (2) Applies from the point in time when the child is referred for 
early intervention services under this part until the later of when the 
lead agency or EIS provider is no longer required to maintain or 
maintains that information under applicable Federal and State laws.
    (d) Disclosure of information. (1) Subject to paragraph (e) of this 
section and Sec.  303.209(b)(3), the lead agency must disclose to the 
LEA where the child resides or to the SEA, in accordance with Sec.  
303.209(b)(2), the following limited information that would otherwise 
be determined to be personally identifiable information under the Act:
    (i) A child's name.
    (ii) A child's date of birth.
    (iii) Parent contact information (including parents' names, 
addresses, and telephone numbers).
    (2) The information described in paragraph (d)(1) of this section 
is needed to enable the lead agency, as well as LEAs and SEAs under 
Part B of the Act, to identify all children potentially eligible for 
services under this part and Part B of the Act.
    (e) Option to inform a parent about intended disclosure. (1) A 
State lead agency, through its policies and procedures, may require 
public agencies and EIS providers, prior to making the limited 
disclosure described in paragraph (d)(1) of this section, to inform the 
parent of the intended disclosure and allow the parent a specified time 
period to object to the disclosure in writing.
    (2) If a parent (in a State that has adopted the policy described 
in paragraph (e)(1) of this section) objects during the time period 
provided by the State, the lead agency is not permitted to make such a 
disclosure under paragraph (d) of this section and Sec.  303.209(b)(2).

(Authority: 20 U.S.C. 1412(a)(9), 1417(c), 1435(a)(5), 1439(a)(6), 
1437(a)(9), 1439(a)(2), 1439(a)(4), 1442)

Additional Confidentiality Requirements


Sec.  303.402  Confidentiality.

    The Secretary takes appropriate action, in accordance with section 
444 of GEPA, to ensure the protection of the confidentiality of any 
personally identifiable data, information, and records collected, 
maintained or used by the Secretary and by lead agencies and EIS 
providers pursuant to Part C of the Act, and consistent with Sec. Sec.  
303.403 through 303.417.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1442)

Sec.  303.403  Definitions.

    The following definitions apply to Sec. Sec.  303.402 through 
303.417:
    (a) Destruction means physical destruction of the record or 
ensuring that personal identifiers are removed from a record so that 
the record is no longer personally identifiable under Sec.  303.29.
    (b) Education records includes all early intervention records 
required to be collected, maintained, or used under Part C of the Act 
and the regulations in this part.

[[Page 26516]]

    (c) Participating agency means any individual, agency, or 
institution that collects, maintains, or uses personally identifiable 
information and includes the lead agency and EIS providers.

(Authority: 20 U.S.C. 1221e-3, 1417(c), 1435(a)(5), 1439(a)(2), 
1442)

Sec.  303.404  Notice to parents.

    The lead agency must give notice that is adequate to fully inform 
parents about the requirements of Sec.  303.402, including--
    (a) A description of the children on whom personally identifiable 
information is maintained, the types of information sought, the methods 
the State intends to use in gathering the information (including the 
sources from whom information is gathered), and the uses to be made of 
the information;
    (b) A summary of the policies and procedures that participating 
agencies must follow regarding storage, disclosure to third parties, 
retention, and destruction of personally identifiable information; and
    (c) A description of all of the rights of parents and children 
regarding this information, including the rights under the Part C 
confidentiality provisions in Sec. Sec.  303.401 through 303.417.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1442)

Sec.  303.405  Access rights.

    (a) Each participating agency must permit parents to inspect and 
review any education records relating to their children that are 
collected, maintained, or used by the agency under this part. The 
agency must comply with a request without unnecessary delay and before 
any meeting regarding an IFSP, or any hearing pursuant to Sec. Sec.  
303.430(d) and 303.435 through 303.439, and in no case more than 20 
days after the request has been made.
    (b) The right to inspect and review education records under this 
section includes--
    (1) The right to a response from the participating agency to 
reasonable requests for explanations and interpretations of the 
records;
    (2) The right to request that the participating agency provide 
copies of the records containing the information if failure to provide 
those copies would effectively prevent the parent from exercising the 
right to inspect and review the records; and
    (3) The right to have a representative of the parent inspect and 
review the records.
    (c) An agency shall presume that the parent has authority to 
inspect and review records relating to his or her child unless the 
agency has been provided documentation that the parent does not have 
the authority under applicable State laws governing such matters as 
custody, foster care, guardianship, separation, and divorce.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.406  Record of access.

    Each participating agency must keep a record of parties obtaining 
access to education records collected, maintained, or used under Part C 
of the Act (except access by parents and authorized representatives and 
employees of the participating agency), including the name of the 
party, the date access was given, and the purpose for which the party 
is authorized to use the records.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 
1442)

Sec.  303.407  Records on more than one child.

    If any education record includes information on more than one 
child, the parents of those children have the right to inspect and 
review only the information relating to their child or to be informed 
of that specific information.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.408  List of types and locations of information.

    Each participating agency must provide parents on request a list of 
the types and locations of education records collected, maintained, or 
used by the agency.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.409  Fees.

    (a) Each participating agency may charge a fee for copies of 
records that are made for parents under this part if the fee does not 
effectively prevent the parents from exercising their right to inspect 
and review those records.
    (b) A participating agency may not charge a fee to search for or to 
retrieve information under this part.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.410  Amendment of records at parent's request.

    (a) A parent who believes that information in the education records 
collected, maintained, or used under this part is inaccurate, 
misleading, or violates the privacy or other rights of the child may 
request that the participating agency that maintains the information 
amend the information.
    (b) The participating agency must decide whether to amend the 
information in accordance with the request within a reasonable period 
of time of receipt of the request.
    (c) If the participating agency decides to refuse to amend the 
information in accordance with the request, it must inform the parent 
of the refusal and advise the parent of the right to a hearing under 
Sec.  303.411.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.411  Opportunity for a hearing.

    The participating agency must, on request, provide a parent with an 
opportunity for a hearing under Sec.  303.430(d) to challenge 
information in education records to ensure that it is not inaccurate, 
misleading, or otherwise in violation of the privacy or other rights of 
the child.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.412  Result of hearing.

    (a) If, as a result of the hearing, the participating agency 
decides that the information is inaccurate, misleading or in violation 
of the privacy or other rights of the child, it must amend the 
information accordingly and so inform the parent in writing.
    (b) If, as a result of the hearing, the agency decides that the 
information is not inaccurate, misleading, or in violation of the 
privacy or other rights of the child, it must inform the parent of the 
right to place in the records it maintains on the child a statement 
commenting on the information or setting forth any reasons for 
disagreeing with the decision of the agency.
    (c) Any explanation placed in the records of the child under this 
section must--
    (1) Be maintained by the agency as part of the records of the child 
as long as the record or contested portion is maintained by the agency; 
and
    (2) If the records of the child or the contested portion is 
disclosed by the agency to any party, the explanation must also be 
disclosed to the party.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.413  Hearing procedures.

    A hearing held under Sec.  303.411 must be conducted according to 
the procedures under 34 CFR 99.22.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)

Sec.  303.414  Consent prior to disclosure or use.

    (a) Prior parental consent must be obtained before personally 
identifiable information is--
    (1) Disclosed to anyone other than authorized representatives, 
officials, or

[[Page 26517]]

employees of participating agencies collecting, maintaining, or using 
the information under this part, subject to paragraph (b) of this 
section; or
    (2) Used for any purpose other than meeting a requirement of this 
part.
    (b) A lead agency or participating agency may not disclose 
personally identifiable information, as defined in Sec.  303.29, to any 
party except the lead agency and EIS providers that are part of the 
State's Part C system without parental consent unless authorized to do 
so under paragraphs (c) and (d) of this section, Sec.  303.401, or the 
exceptions enumerated in 34 CFR part 99, which are adopted to apply to 
Part C through this reference.
    (c) The lead agency must provide policies and procedures to be used 
when a parent refuses to provide consent under this section (such as a 
meeting to explain to parents how their failure to consent affects the 
ability of their child to receive services under this part), provided 
that those procedures do not override a parent's right to refuse 
consent under Sec.  303.420.
    (d) The lead agency or participating agency may disclose to a 
protection and advocacy (P&A) system authorized under section 143 of 
the Developmental Disabilities Assistance and Bill of Rights Act of 
2000 (DD Act)--
    (1) Contact information (including name, address, and telephone 
number) for the parent or legal guardian or representative of an infant 
or toddler with a disability when the P&A system requests this 
information under section 143(a)(2)(I)(iii)(III) of the DD Act when 
requested by the P&A system; or
    (2) Personally identifiable information in the early intervention 
records of an infant or toddler with a disability in order to provide 
the P&A system access to the early intervention records when the P&A 
system requests access under either section 143(a)(2)(I)(iii) or 
section 143(a)(2)(J) of the DD Act.

(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442 and 42 
U.S.C. 15043(a)(2)(I), 15043(a)(2)(J))

Sec.  303.415  Safeguards.

    (a) Each participating agency must protect the confidentiality of 
personally identifiable information at collection, maintenance, use, 
storage, disclosure, and destruction stages.
    (b) One official at each participating agency must assume 
responsibility for ensuring the confidentiality of any personally 
identifiable information.
    (c) All persons collecting or using personally identifiable 
information must receive training or instruction regarding the State's 
policies and procedures under Sec. Sec.  303.401 through 303.417 and 34 
CFR part 99.
    (d) Each participating agency must maintain, for public inspection, 
a current listing of the names and positions of those employees within 
the agency who may have access to personally identifiable information.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 
1442)

Sec.  303.416  Destruction of information.

    (a) The public agency must inform parents when personally 
identifiable information collected, maintained, or used under this part 
is no longer needed to provide services to the child under Part C, 
GEPA, 20 U.S.C. 1230 through 1234i, and EDGAR, 34 CFR parts 76 and 80.
    (b) Subject to paragraph (a) of this section, the information must 
be destroyed at the request of the parents. However, a permanent record 
of a child's name, date of birth, parent contact information (including 
address, and phone number), names of service coordinator(s) and EIS 
provider(s), and exit data (including year and age upon exit, and any 
programs entered into upon exiting) may be maintained without time 
limitation.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 
1442)

Sec.  303.417  Enforcement.

    The lead agency must have in effect policies and procedures that 
the State uses to ensure that its policies and procedures are followed 
and that the requirements of the Act and the regulations in this part 
are met including the sanctions and right to file a State complaint 
under Sec. Sec.  303.432 through 303.434 for failure to comply with 
Sec. Sec.  303.401 through 303.417.

(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4), 
1442)

Parental Consent and Notice


Sec.  303.420  Parental consent and ability to decline service.

    (a) The lead agency must ensure parental consent is obtained 
before--
    (1) Administering screening procedures that are used either to 
determine:
    (i) Whether a child is suspected of having a disability; or
    (ii) A child's eligibility under this part;
    (2) An evaluation and assessment of a child is conducted under 
Sec.  303.320;
    (3) Early intervention services are provided to the child under 
this part;
    (4) Public or private insurance is used consistent with Sec.  
303.520; and
    (5) Exchange of personally identifiable information among agencies 
consistent with Sec.  303.401.
    (b) If the parent does not give consent, the lead agency must make 
reasonable efforts to ensure that the parent--
    (1) Is fully aware of the nature of the evaluation and assessment 
or the services that would be available; and
    (2) Understands that the child will not be able to receive the 
evaluation and assessment or services unless consent is given.
    (c)(1) Subject to paragraph (c)(2) of this section, the lead agency 
may, but is not required to, use the due process hearing procedures 
under this part to challenge the parent's refusal to consent to an 
evaluation and assessment of the child for early intervention services.
    (2) The lead agency may not use the procedures described in 
paragraph (c)(1) of this section to challenge the parent's refusal to 
consent to the provision of an early intervention service or the use of 
insurance.
    (d) The parents of an infant or toddler with a disability--
    (1) Determine whether they, their infant or toddler with a 
disability, or other family members will accept or decline any early 
intervention service under this part at any time, in accordance with 
State law; and
    (2) May decline a service after first accepting it, without 
jeopardizing other early intervention services under this part.

(Authority: 20 U.S.C. 1436(e), 1439(a)(3))

Sec.  303.421  Prior written notice and procedural safeguards notice.

    (a) General. Prior written notice must be given to the parents of a 
child a reasonable time before the lead agency or an EIS provider 
proposes, or refuses, to initiate or change the identification, 
evaluation, or placement of the child, or the provision of early 
intervention services to the infant or toddler with a disability and 
that infant's or toddler's family.
    (b) Content of notice. The notice must be in sufficient detail to 
inform the parents about--
    (1) The action that is being proposed or refused;
    (2) The reasons for taking the action; and
    (3) All procedural safeguards that are available under this 
subpart, including a description of mediation in Sec.  303.431, how to 
file a State complaint in Sec. Sec.  303.432 through 303.434 and a due 
process complaint in the provisions adopted under Sec.  303.430(d), and 
any timelines under those procedures.
    (c) Native language. (1) The notice must be--

[[Page 26518]]

    (i) Written in language understandable to the general public; and
    (ii) Provided in the native language, as defined in Sec.  303.25, 
of the parent or other mode of communication used by the parent, unless 
it is clearly not feasible to do so.
    (2) If the native language or other mode of communication of the 
parent is not a written language, the public agency or designated EIS 
provider shall take steps to ensure that--
    (i) The notice is translated orally or by other means to the parent 
in the parent's native language or other mode of communication;
    (ii) The parent understands the notice; and
    (iii) There is written evidence that the requirements of this 
paragraph have been met.

(Authority: 20 U.S.C. 1439(a)(6)-(7))

Surrogate Parents


Sec.  303.422  Surrogate parents.

    (a) General. Each lead agency or other public agency must ensure 
that the rights of a child are protected when--
    (1) No parent (as defined in Sec.  303.27) can be identified;
    (2) The lead agency, or other public agency, after reasonable 
efforts, cannot locate a parent; or
    (3) The child is a ward of the State under the laws of that State.
    (b) Duty of lead agency and other public agencies.
    (1) The duty of the lead agency, or other public agency under 
paragraph (a) of this section, includes the assignment of an individual 
to act as a surrogate for the parents. This assignment process must 
include a method for--
    (i) Determining whether a child needs a surrogate parent; and
    (ii) Assigning a surrogate parent to the child.
    (2) In implementing the provisions under this section for children 
who are wards of the State or placed in foster care, the lead agency 
must consult with the public agency with whom care of the child has 
been assigned.
    (c) Criteria for selection of surrogate parents. (1) The lead 
agency or other public agency may select a surrogate parent in any way 
permitted under State law.
    (2) Public agencies must ensure that a person selected as a 
surrogate parent--
    (i) Is not an employee of the lead agency or any other public 
agency or EIS provider that provides early intervention services or 
other services to the child or any family member of the child;
    (ii) Has no personal or professional interest that conflicts with 
the interest of the child he or she represents; and
    (iii) Has knowledge and skills that ensure adequate representation 
of the child.
    (d) Non-employee requirement; compensation. A person who is 
otherwise qualified to be a surrogate parent under paragraph (c) of 
this section is not an employee of the agency solely because he or she 
is paid by the agency to serve as a surrogate parent.
    (e) Surrogate parent responsibilities. The surrogate parent has the 
same rights as a parent for all purposes under this part.

(Authority: 20 U.S.C. 1439(a)(5))

Dispute Resolution Options


Sec.  303.430  State dispute resolution options.

    (a) General. Each statewide system must include written procedures 
for the timely administrative resolution of complaints through 
mediation, State complaint procedures, and due process hearing 
procedures, described in paragraphs (b) through (e) of this section.
    (b) Mediation. Each lead agency must make available to parties to 
disputes involving any matter under this part the opportunity for 
mediation that meets the requirements of Sec.  303.431.
    (c) State complaint procedures. Each lead agency must adopt written 
State complaint procedures to resolve any State complaints filed by any 
party regarding any violation of this part that meet the requirements 
in Sec. Sec.  303.432 through 303.434.
    (d) Due process hearing procedures. In addition to adopting the 
procedures in paragraphs (b) and (c) of this section, the lead agency 
must adopt written due process hearing procedures to resolve complaints 
with respect to a particular child regarding any matter identified in 
Sec.  303.421(a), by either adopting--
    (1) The Part C due process hearing procedures under section 639 of 
the Act that--
    (i) Meet the requirements in Sec. Sec.  303.435 through 303.438; 
and
    (ii) Provide a means of filing a due process complaint regarding 
any matter listed in Sec.  303.421(a); or
    (2) The Part B due process hearing procedures under section 615 of 
the Act and Sec. Sec.  303.440 through 303.449 (with either a 30-day or 
45-day timeline for resolving due process complaints, as provided in 
Sec.  303.440(c)).
    (e) Status of a child during the pendency of a due process 
complaint. (1) During the pendency of any proceeding involving a due 
process complaint under paragraph (d) of this section, unless the lead 
agency and parents of an infant or toddler with a disability otherwise 
agree, the child must continue to receive the appropriate early 
intervention services in the setting identified in the IFSP that is 
consented to by the parents.
    (2) If the due process complaint under paragraph (d) of this 
section involves an application for initial services under Part C of 
the Act, the child must receive those services that are not in dispute.
    (3)(i) Except as provided in paragraph (e)(3)(ii) of this section, 
if a child turns three and the child's eligibility under Sec.  303.211 
has not yet been determined, then the child must continue to receive 
Part C services under Sec.  303.211(b)(4).
    (ii) Once a child turns three and has been determined ineligible 
for services under Part B and Sec.  303.211, the provisions of 
paragraph (e)(1) of this section do not apply and the lead agency is 
not required to provide Part C services to that child during the 
pendency of any due process complaint proceeding challenging the 
determination of ineligibility.

(Authority: 20 U.S.C. 1415(e), 1415(f)(1)(A), 1415(f)(3)(A)-(D), 
1439(a)(8), 1439(b))

Mediation


Sec.  303.431  Mediation.

    (a) General. Each lead agency must ensure that procedures are 
established and implemented to allow parties to disputes involving any 
matter under this part, including matters arising prior to the filing 
of a due process complaint, to resolve disputes through a mediation 
process.
    (b) Requirements. The procedures must meet the following 
requirements:
    (1) The procedures must ensure that the mediation process--
    (i) Is voluntary on the part of the parties;
    (ii) Is not used to deny or delay a parent's right to a hearing on 
the parent's due process complaint, or to deny any other rights 
afforded under Part C of the Act; and
    (iii) Is conducted by a qualified and impartial mediator who is 
trained in effective mediation techniques.
    (2)(i) The State must maintain a list of individuals who are 
qualified mediators and knowledgeable in laws and regulations relating 
to the provision of early intervention services.
    (ii) The lead agency must select mediators on a random, rotational, 
or other impartial basis.
    (3) The State must bear the cost of the mediation process, 
including the costs of meetings described in paragraph (d) of this 
section.
    (4) Each session in the mediation process must be scheduled in a 
timely

[[Page 26519]]

manner and must be held in a location that is convenient to the parties 
to the dispute.
    (5) If the parties resolve a dispute through the mediation process, 
the parties must execute a legally binding agreement that sets forth 
that resolution and that--
    (i) States that all discussions that occurred during the mediation 
process will remain confidential and may not be used as evidence in any 
subsequent due process hearing or civil proceeding; and
    (ii) Is signed by both the parent and a representative of the 
agency who has the authority to bind such agency.
    (6) A written, signed mediation agreement under this paragraph is 
enforceable in any State court of competent jurisdiction or in a 
district court of the United States.
    (7) Discussions that occur during the mediation process must be 
confidential and may not be used as evidence in any subsequent due 
process hearing or civil proceeding of any Federal court or State court 
of a State receiving assistance under this part.
    (c) Impartiality of mediator. (1) An individual who serves as a 
mediator under this part--
    (i) May not be an employee of the lead agency or an EIS provider 
that is involved in the provision of early intervention or other 
services to the child; and
    (ii) Must not have a personal or professional interest that 
conflicts with the person's objectivity.
    (2) A person who otherwise qualifies as a mediator is not an 
employee of a lead agency or an early intervention provider solely 
because he or she is paid by the agency or provider to serve as a 
mediator.
    (d) Meeting to encourage mediation. A lead agency may establish 
procedures to offer to parents and EIS providers that choose not to use 
the mediation process, an opportunity to meet, at a time and location 
convenient to the parents, with a disinterested party--
    (1) Who is under contract with an appropriate alternative dispute 
resolution entity, or a parent training and information center or 
community parent resource center in the State established under section 
671 or 672 of the Act; and
    (2) Who would explain the benefits of, and encourage the use of, 
the mediation process to the parents.

(Authority: 20 U.S.C. 1415(e), 1439(a)(8))

State Complaint Procedures


Sec.  303.432  Adoption of State complaint procedures.

    (a) General. Each lead agency must adopt written procedures for--
    (1) Resolving any complaint, including a complaint filed by an 
organization or individual from another State, that meets the 
requirements of Sec.  303.434 by providing for the filing of a 
complaint with the lead agency; and
    (2) Widely disseminating to parents and other interested 
individuals, including parent training and information centers, 
protection and advocacy agencies and other appropriate entities, the 
State procedures under Sec. Sec.  303.432 through 303.434.
    (b) Remedies for denial of appropriate services. In resolving a 
complaint in which the lead agency has found a failure to provide 
appropriate services, a lead agency pursuant to its general supervisory 
authority under Part C of the Act, must address--
    (1) The failure to provide appropriate services, including 
corrective action appropriate to address the needs of the infant or 
toddler with a disability and the infant's or toddler's family who is 
the subject of the complaint; and
    (2) Appropriate future provision of services for all infants and 
toddlers with disabilities and their families.

(Authority: 20 U.S.C. 1439(a)(1))

Sec.  303.433  Minimum State complaint procedures.

    (a) Time limit; minimum procedures. Each lead agency must include 
in its complaint procedures a time limit of 60 days after a complaint 
is filed under Sec.  303.434 to--
    (1) Carry out an independent on-site investigation, if the lead 
agency determines that an investigation is necessary;
    (2) Give the complainant the opportunity to submit additional 
information, either orally or in writing, about the allegations in the 
complaint;
    (3) Provide the lead agency, public agency, or EIS provider with 
the opportunity to respond to the complaint, including, at a minimum--
    (i) At the discretion of the lead agency, a proposal to resolve the 
complaint; and
    (ii) An opportunity for a parent who has filed a complaint and the 
lead agency, public agency, or EIS provider to voluntarily engage in 
mediation, consistent with Sec. Sec.  303.430(b) and 303.431;
    (4) Review all relevant information and make an independent 
determination as to whether the lead agency, public agency, or EIS 
provider is violating a requirement of Part C of the Act or of this 
part; and
    (5) Issue a written decision to the complainant that addresses each 
allegation in the complaint and contains--
    (i) Findings of fact and conclusions; and
    (ii) The reasons for the lead agency's final decision.
    (b) Time extension; final decision; implementation. The lead 
agency's procedures described in paragraph (a) of this section also 
must--
    (1) Permit an extension of the time limit under paragraph (a) of 
this section only if--
    (i) Exceptional circumstances exist with respect to a particular 
complaint; or
    (ii) The parent (or individual or organization, if mediation is 
available to the individual or organization under State procedures) and 
the lead agency or EIS provider involved agree to extend the time to 
engage in mediation pursuant to paragraph (a)(3)(ii) of this section; 
and
    (2) Include procedures for effective implementation of the lead 
agency's final decision, if needed, including--
    (i) Technical assistance activities;
    (ii) Negotiations; and
    (iii) Corrective actions to achieve compliance.
    (c) Complaints filed under this section and due process hearings 
under Sec.  303.430(d). (1) If a written complaint is received that is 
also the subject of a due process hearing under Sec.  303.430(d), or 
contains multiple issues of which one or more are part of that hearing, 
the State must set aside any part of the complaint that is being 
addressed in the due process hearing until the conclusion of the 
hearing. However, any issue in the complaint that is not a part of the 
due process hearing must be resolved using the time limit and 
procedures described in paragraphs (a) and (b) of this section.
    (2) If an issue raised in a complaint filed under this section has 
previously been decided in a due process hearing involving the same 
parties--
    (i) The due process hearing decision is binding on that issue; and
    (ii) The lead agency must inform the complainant to that effect.
    (3) A complaint alleging a lead agency or EIS provider's failure to 
implement a due process hearing decision must be resolved by the lead 
agency.

(Authority: 20 U.S.C. 1439(a)(1))

Sec.  303.434  Filing a complaint.

    (a) An organization or individual may file a signed written 
complaint under the procedures described in Sec. Sec.  303.432 and 
303.433.
    (b) The complaint must include--
    (1) A statement that the lead agency, public agency, or EIS 
provider has

[[Page 26520]]

violated a requirement of Part C of the Act or of this part;
    (2) The facts on which the statement is based;
    (3) The signature and contact information for the complainant; and
    (4) If alleging violations with respect to a specific child--
    (i) The name and address of the residence of the child;
    (ii) The name of the EIS provider serving the child;
    (iii) A description of the nature of the problem of the child, 
including facts relating to the problem; and
    (iv) A proposed resolution of the problem to the extent known and 
available to the party at the time the complaint is filed.
    (c) The complaint must allege a violation that occurred not more 
than one year prior to the date that the complaint is received in 
accordance with Sec.  303.432.
    (d) The party filing the complaint must forward a copy of the 
complaint to the public agency or EIS provider serving the child at the 
same time the party files the complaint with the lead agency.

(Authority: 20 U.S.C. 1439(a)(1))

States That Choose To Adopt the Part C Due Process Procedures Under 
Section 639 of the Act


Sec.  303.435  Appointment of an impartial due process hearing officer.

    (a) Qualifications and duties. Whenever a due process complaint is 
received under Sec.  303.430(d), a due process hearing officer must be 
appointed to implement the complaint resolution process in this 
subpart. The person must--
    (1) Have knowledge about the provisions of this part and the needs 
of, and early intervention services available for, infants and toddlers 
with disabilities and their families; and
    (2) Perform the following duties:
    (i)(A) Listen to the presentation of relevant viewpoints about the 
due process complaint.
    (B) Examine all information relevant to the issues.
    (C) Seek to reach a timely resolution of the due process complaint.
    (ii) Provide a record of the proceedings, including a written 
decision.
    (b) Definition of impartial. (1) Impartial means that the due 
process hearing officer appointed to implement the due process hearing 
under this part--
    (i) Is not an employee of the lead agency or an EIS provider 
involved in the provision of early intervention services or care of the 
child; and
    (ii) Does not have a personal or professional interest that would 
conflict with his or her objectivity in implementing the process.
    (2) A person who otherwise qualifies under paragraph (b)(1) of this 
section is not an employee of an agency solely because the person is 
paid by the agency to implement the due process hearing procedures or 
mediation procedures under this part.

(Authority: 20 U.S.C. 1439(a)(1))

Sec.  303.436  Parental rights in due process hearing proceedings.

    (a) General. Each lead agency must ensure that the parents of a 
child referred to Part C are afforded the rights in paragraph (b) of 
this section in the due process hearing carried out under Sec.  
303.430(d).
    (b) Rights. Any parent involved in a due process hearing has the 
right to--
    (1) Be accompanied and advised by counsel and by individuals with 
special knowledge or training with respect to early intervention 
services for infants and toddlers with disabilities;
    (2) Present evidence and confront, cross-examine, and compel the 
attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the hearing that 
has not been disclosed to the parent at least five days before the 
hearing;
    (4) Obtain a written or electronic verbatim transcription of the 
hearing; and
    (5) Obtain written findings of fact and decisions.

(Authority: 20 U.S.C. 1439(a))

Sec.  303.437  Convenience of hearings and timelines.

    (a) Any due process hearing conducted under this subpart must be 
carried out at a time and place that is reasonably convenient to the 
parents.
    (b) Each lead agency must ensure that, not later than 30 days after 
the receipt of a parent's due process complaint, the due process 
hearing required under this subpart is completed and a written decision 
mailed to each of the parties.

(Authority: 20 U.S.C. 1439(a)(1))

Sec.  303.438  Civil action.

    Any party aggrieved by the findings and decision issued pursuant to 
a due process complaint has the right to bring a civil action in State 
or Federal court under section 639(a)(1) of the Act.

(Authority: 20 U.S.C. 1439(a)(1))

States That Choose To Adopt the Part B Due Process Procedures Under 
Section 615 of the Act


Sec.  303.440  Filing a due process complaint.

    (a) General. (1) A parent, EIS provider, or a lead agency may file 
a due process complaint on any of the matters described in Sec.  
303.421(a) (relating to the identification, evaluation or placement of 
a child under Part C of the Act, or the provision of early intervention 
services to the infant or toddler with a disability and his or her 
family).
    (2) The due process complaint must allege a violation that occurred 
not more than two years before the date the parent or public agency 
knew or should have known about the alleged action that forms the basis 
of the due process complaint, or, if the State has an explicit time 
limitation for filing a due process complaint under this part, in the 
time allowed by that State law, except that the exceptions to the 
timeline described in Sec.  303.443(f) apply to the timeline in this 
section.
    (b) Information for parents. The lead agency must inform the parent 
of any free or low-cost legal and other relevant services available in 
the area if--
    (1) The parent requests the information; or
    (2) The parent or EIS provider files a due process complaint under 
this section.
    (c) Timeline for Resolution. The lead agency may adopt a 30- or 45-
day timeline, subject to Sec.  303.447(a), for the resolution of due 
process complaints and must specify in its written policies and 
procedures under Sec.  303.123 and in its prior written notice under 
Sec.  303.421, the specific timeline it has adopted.

(Authority: 20 U.S.C. 1415(b)(6), 1439)

Sec.  303.441  Due process complaint.

    (a) General. (1) The lead agency must have procedures that require 
either party, or the attorney representing a party, to provide to the 
other party a due process complaint (which must remain confidential).
    (2) The party filing a due process complaint must forward a copy of 
the due process complaint to the lead agency.
    (b) Content of complaint. The due process complaint required in 
paragraph (a)(1) of this section must include--
    (1) The name of the child;
    (2) The address of the residence of the child;
    (3) The name of the EIS provider serving the child;
    (4) In the case of a homeless child (within the meaning of section 
725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 
11434a(2)),

[[Page 26521]]

available contact information for the child, and the name of the EIS 
provider serving the child;
    (5) A description of the nature of the problem of the child 
relating to the proposed or refused initiation or change, including 
facts relating to the problem; and
    (6) A proposed resolution of the problem to the extent known and 
available to the party at the time.
    (c) Notice required before a hearing on a due process complaint. A 
party may not have a hearing on a due process complaint until the 
party, or the attorney representing the party, files a due process 
complaint that meets the requirements of paragraph (b) of this section.
    (d) Sufficiency of complaint. (1) The due process complaint 
required by this section must be deemed sufficient unless the party 
receiving the due process complaint notifies the hearing officer and 
the other party in writing, within 15 days of receipt of the due 
process complaint, that the receiving party believes the due process 
complaint does not meet the requirements in paragraph (b) of this 
section.
    (2) Within five days of receipt of notification under paragraph 
(d)(1) of this section, the hearing officer must make a determination 
on the face of the due process complaint of whether the due process 
complaint meets the requirements of paragraph (b) of this section, and 
must immediately notify the parties in writing of that determination.
    (3) A party may amend its due process complaint only if--
    (i) The other party consents in writing to the amendment and is 
given the opportunity to resolve the due process complaint through a 
meeting held pursuant to Sec.  303.442; or
    (ii) The hearing officer grants permission, except that the hearing 
officer may only grant permission to amend at any time not later than 
five days before the due process hearing begins.
    (4) If a party files an amended due process complaint, the 
timelines for the resolution meeting in Sec.  303.442(a) and the time 
period to resolve in Sec.  303.442(b) begin again with the filing of 
the amended due process complaint.
    (e) Lead agency response to a due process complaint. (1) If the 
lead agency has not sent a prior written notice under Sec.  303.421 to 
the parent regarding the subject matter contained in the parent's due 
process complaint, the lead agency or EIS provider must, within 10 days 
of receiving the due process complaint, send to the parent a response 
that includes--
    (i) An explanation of why the lead agency proposed or refused to 
take the action raised in the due process complaint;
    (ii) A description of other options that the IFSP team considered 
and the reasons why those options were rejected;
    (iii) A description of each evaluation procedure, assessment, 
record, or report the lead agency used as the basis for the proposed or 
refused action; and
    (iv) A description of the other factors that are relevant to the 
agency's proposed or refused action.
    (2) A response by the lead agency under paragraph (e)(1) of this 
section shall not be construed to preclude the lead agency from 
asserting that the parent's due process complaint was insufficient, 
where appropriate.
    (f) Other party response to a due process complaint. Except as 
provided in paragraph (e) of this section, the party receiving a due 
process complaint must, within 10 days of receiving the due process 
complaint, send to the other party a response that specifically 
addresses the issues raised in the due process complaint.

(Authority: 20 U.S.C. 1415(b)(7), 1415(c)(2), 1439)

Sec.  303.442  Resolution process.

    (a) Resolution meeting. (1) Within 15 days of receiving notice of 
the parent's due process complaint, and prior to the initiation of a 
due process hearing under Sec.  303.443, the lead agency must convene a 
meeting with the parent and the relevant member or members of the IFSP 
team who have specific knowledge of the facts identified in the due 
process complaint that--
    (i) Includes a representative of the lead agency who has decision-
making authority on behalf of that agency; and
    (ii) May not include an attorney of the lead agency unless the 
parent is accompanied by an attorney.
    (2) The purpose of the meeting is for the parent of the child to 
discuss the due process complaint, and the facts that form the basis of 
the due process complaint, so that the lead agency has the opportunity 
to resolve the dispute that is the basis for the due process complaint.
    (3) The meeting described in paragraph (a)(1) and (a)(2) of this 
section need not be held if--
    (i) The parent and lead agency agree in writing to waive the 
meeting; or
    (ii) The parent and lead agency agree to use the mediation process 
described in Sec.  303.431.
    (4) The parent and the lead agency must determine the relevant 
members of the IFSP team to attend the meeting.
    (b) Resolution period. (1) If the lead agency has not resolved the 
due process complaint to the satisfaction of the parties within 30 days 
of the receipt of the due process complaint, the due process hearing 
may occur.
    (2) Except as provided in paragraph (c) of this section, the 
timeline for issuing a final decision under Sec.  303.447 begins at the 
expiration of the 30-day period in paragraph (b)(1) of this section.
    (3) Except where the parties have jointly agreed to waive the 
resolution process or to use mediation, notwithstanding paragraphs 
(b)(1) and (2) of this section, the failure of the parent filing a due 
process complaint to participate in the resolution meeting will delay 
the timelines for the resolution process and due process hearing until 
the meeting is held.
    (4) If the lead agency is unable to obtain the participation of the 
parent in the resolution meeting after reasonable efforts have been 
made, including documenting its efforts, the lead agency, may at the 
conclusion of the 30-day period, request that a hearing officer dismiss 
the parent's due process complaint.
    (5) If the lead agency fails to hold the resolution meeting 
specified in paragraph (a) of this section within 15 days of receiving 
notice of a parent's due process complaint or fails to participate in 
the resolution meeting, the parent may seek the intervention of a 
hearing officer to begin the due process hearing timeline.
    (c) Adjustments to 30-day resolution period. The 30- or 45-day 
timeline adopted by the lead agency under Sec.  303.440(c) for the due 
process hearing described in Sec.  303.447(a) starts the day after one 
of the following events:
    (1) Both parties agree in writing to waive the resolution meeting.
    (2) After either the mediation or resolution meeting starts but 
before the end of the 30-day period, the parties agree in writing that 
no agreement is possible.
    (3) If both parties agree in writing to continue the mediation at 
the end of the 30-day resolution period, but later, the parent or lead 
agency withdraws from the mediation process.
    (d) Written settlement agreement. If a resolution to the dispute is 
reached at the meeting described in paragraph (a)(1) and (2) of this 
section, the parties must execute a legally binding agreement that is--
    (1) Signed by both the parent and a representative of the lead 
agency who

[[Page 26522]]

has the authority to bind the agency; and
    (2) Enforceable in any State court of competent jurisdiction or in 
a district court of the United States, or, by the lead agency, if the 
State has other mechanisms or procedures that permit parties to seek 
enforcement of resolution agreements pursuant to this section.
    (e) Agreement review period. If the parties execute an agreement 
pursuant to paragraph (d) of this section, a party may void the 
agreement within three business days of the agreement's execution.

(Authority: 20 U.S.C. 1415(f)(1)(B), 1439)

Sec.  303.443  Impartial due process hearing.

    (a) General. Whenever a due process complaint is received 
consistent with Sec.  303.440, the parents or the EIS provider involved 
in the dispute must have an opportunity for an impartial due process 
hearing, consistent with the procedures in Sec. Sec.  303.440 through 
303.442.
    (b) Agency responsible for conducting the due process hearing. The 
hearing described in paragraph (a) of this section must be conducted by 
the lead agency directly responsible for the early intervention 
services of the infant or toddler, as determined under State statute, 
State regulation, or a written policy of the lead agency.
    (c) Impartial hearing officer. (1) At a minimum, a hearing 
officer--
    (i) Must not be--
    (A) An employee of the State, lead agency, or the EIS provider that 
is involved in the early intervention services or care of the infant or 
toddler; or
    (B) A person having a personal or professional interest that 
conflicts with the person's objectivity in the hearing;
    (ii) Must possess knowledge of, and the ability to understand, the 
provisions of the Act, Federal and State regulations pertaining to the 
Act, and legal interpretations of the Act by Federal and State courts;
    (iii) Must possess the knowledge and ability to conduct hearings in 
accordance with appropriate, standard legal practice; and
    (iv) Must possess the knowledge and ability to render and write 
decisions in accordance with appropriate, standard legal practice.
    (2) A person who otherwise qualifies to conduct a hearing under 
paragraph (c)(1) of this section is not an employee of the agency 
solely because he or she is paid by the agency to serve as a hearing 
officer.
    (3) Each public agency must keep a list of the persons who serve as 
hearing officers. The list must include a statement of the 
qualifications of each of those persons.
    (d) Subject matter of due process hearings. The party requesting 
the due process hearing may not raise issues at the due process hearing 
that were not raised in the due process complaint filed under Sec.  
303.441(b), unless the other party agrees otherwise.
    (e) Timeline for requesting a hearing. A parent, lead agency, or 
EIS provider must request an impartial hearing on their due process 
complaint within two years of the date the parent, lead agency, or EIS 
provider knew or should have known about the alleged action that forms 
the basis of the due process complaint, or if the State has an explicit 
time limitation for requesting such a due process hearing under this 
part, in the time allowed by that State law.
    (f) Exceptions to the timeline. The timeline described in paragraph 
(e) of this section does not apply to a parent if the parent was 
prevented from filing a due process complaint due to--
    (1) Specific misrepresentations by the lead agency or EIS provider 
that it had resolved the problem forming the basis of the due process 
complaint; or
    (2) The lead agency's or EIS provider's failure to provide the 
parent information that was required under this part to be provided to 
the parent.

(Authority: 20 U.S.C. 1415(f)(1)(A), 1415(f)(3)(A)-(D), 1439)

Sec.  303.444  Hearing rights.

    (a) General. Any party to a hearing conducted pursuant to 
Sec. Sec.  303.440 through 303.445, or an appeal conducted pursuant to 
Sec.  303.446, has the right to--
    (1) Be accompanied and advised by counsel and by individuals with 
special knowledge or training with respect to the problems of infants 
or toddlers with disabilities;
    (2) Present evidence and confront, cross-examine, and compel the 
attendance of witnesses;
    (3) Prohibit the introduction of any evidence at the hearing that 
has not been disclosed to that party at least five business days before 
the hearing;
    (4) Obtain a written, or, at the option of the parents, electronic, 
verbatim record of the hearing; and
    (5) Obtain written, or, at the option of the parents, electronic 
findings of fact and decisions.
    (b) Additional disclosure of information. (1) At least five 
business days prior to a hearing conducted pursuant to Sec.  
303.443(a), each party must disclose to all other parties all 
evaluations completed by that date and recommendations based on the 
offering party's evaluations that the party intends to use at the 
hearing.
    (2) A hearing officer may bar any party that fails to comply with 
paragraph (b)(1) of this section from introducing the relevant 
evaluation or recommendation at the hearing without the consent of the 
other party.
    (c) Parental rights at hearings. Parents involved in hearings must 
be given the right to--
    (1) Have the child who is the subject of the hearing present;
    (2) Open the hearing to the public; and
    (3) Have the record of the hearing and the findings of fact and 
decisions described in paragraphs (a)(4) and (a)(5) of this section 
provided at no cost to parents.

(Authority: 20 U.S.C. 1415(f)(2), 1415(h), 1439)

Sec.  303.445  Hearing decisions.

    (a) Decision of hearing officer. (1) Subject to paragraph (a)(2) of 
this section, a hearing officer must make a determination, based on 
substantive grounds, of whether the child was appropriately identified, 
placed, or evaluated, or whether the infant or toddler with a 
disability and his or her family were appropriately provided early 
intervention services under Part C of the Act.
    (2) In matters alleging a procedural violation, a hearing officer 
may find that a child did not receive appropriate identification, 
evaluation, placement, or provision of early intervention services for 
the child and that child's family under Part C of the Act only if the 
procedural inadequacies--
    (i) Impeded the child's right to identification, evaluation, and 
placement or provision of early intervention services for the child and 
that child's family under Part C of the Act;
    (ii) Significantly impeded the parents' opportunity to participate 
in the decision-making process regarding identification, evaluation, 
placement or provision of early intervention services for the child and 
that child's family under Part C of the Act; or
    (iii) Caused a deprivation of educational or developmental benefit.
    (3) Nothing in paragraph (a) of this section shall be construed to 
preclude a hearing officer from ordering the lead agency or EIS 
provider to comply with procedural requirements under Sec. Sec.  
303.400 through 303.449.
    (b) Construction clause. Nothing in Sec. Sec.  303.440 through 
303.445 shall be construed to affect the right of a parent to file an 
appeal of the due process hearing decision with the lead agency

[[Page 26523]]

under Sec.  303.446(b), if a lead agency level appeal is available.
    (c) Separate due process complaint. Nothing in Sec. Sec.  303.440 
through 303.449 shall be construed to preclude a parent from filing a 
separate due process complaint on an issue separate from a due process 
complaint already filed.
    (d) Findings and decisions to general public. The lead agency, 
after deleting any personally identifiable information, must make the 
findings and decisions available to the public.

(Authority: 20 U.S.C. 1415(f)(3)(E)-(F), 1415(h)(4), 1415(o), 1439)

Sec.  303.446  Finality of decision; appeal; impartial review.

    (a) Finality of hearing decision. A decision made in a hearing 
conducted pursuant to Sec. Sec.  303.440 through 303.445 is final, 
except that any party involved in the hearing may appeal the decision 
under the provisions of paragraph (b) of this section and Sec.  
303.448.
    (b) Appeal of decisions; impartial review. (1) If the hearing 
required by Sec.  303.443 is conducted by a public agency other than 
the lead agency, any party aggrieved by the findings and decision in 
the hearing may appeal to the lead agency.
    (2) If there is an appeal, the lead agency must conduct an 
impartial review of the findings and decision appealed. The official 
conducting the review must--
    (i) Examine the entire hearing record;
    (ii) Ensure that the procedures at the hearing were consistent with 
the requirements of due process;
    (iii) Seek additional evidence if necessary. If a hearing is held 
to receive additional evidence, the rights in Sec.  303.444 apply;
    (iv) Afford the parties an opportunity for oral or written 
argument, or both, at the discretion of the reviewing official;
    (v) Make an independent decision on completion of the review; and
    (vi) Give a copy of the written, or, at the option of the parents, 
electronic findings of fact and decisions to the parties.
    (c) Findings of fact and decision to the general public. The lead 
agency, after deleting any personally identifiable information, must 
make the findings of fact and decisions described in paragraph 
(b)(2)(vi) of this section available to the general public.
    (d) Finality of review decision. The decision made by the reviewing 
official is final unless a party brings a civil action under Sec.  
303.448.

(Authority: 20 U.S.C. 1415(g), 1415(h)(4), 1415(i)(1)(A), 
1415(i)(2), 1439)

Sec.  303.447  Timelines and convenience of hearings and reviews.

    (a) The lead agency must ensure that not later than either 30 days 
or 45 days (consistent with the lead agency's written policies and 
procedures adopted under Sec.  303.440(c)) after the expiration of the 
30-day period in Sec.  303.442(b), or the adjusted 30-day time periods 
described in Sec.  303.442(c)--
    (1) A final decision is reached in the hearing; and
    (2) A copy of the decision is mailed to each of the parties.
    (b) The lead agency must ensure that not later than 30 days after 
the receipt of a request for a review--
    (1) A final decision is reached in the review; and
    (2) A copy of the decision is mailed to each of the parties.
    (c) A hearing or reviewing officer may grant specific extensions of 
time beyond the periods set out in paragraphs (a) and (b) of this 
section at the request of either party.
    (d) Each hearing and each review involving oral arguments must be 
conducted at a time and place that is reasonably convenient to the 
parents and child involved.

(Authority: 20 U.S.C. 1415(f)(1)(B)(ii), 1415(g), 1415(i)(1), 1439)

Sec.  303.448  Civil action.

    (a) General. Any party aggrieved by the findings and decision made 
under Sec. Sec.  303.440 through 303.445 who does not have the right to 
an appeal under Sec.  303.446(b), and any party aggrieved by the 
findings and decision under Sec.  303.446(b), has the right to bring a 
civil action with respect to the due process complaint under Sec.  
303.440. The action may be brought in any State court of competent 
jurisdiction or in a district court of the United States without regard 
to the amount in controversy.
    (b) Time limitation. The party bringing the action shall have 90 
days from the date of the decision of the hearing officer or, if 
applicable, the decision of the State review official, to file a civil 
action, or, if the State has an explicit time limitation for bringing 
civil actions under Part C of the Act, in the time allowed by that 
State law.
    (c) Additional requirements. In any action brought under paragraph 
(a) of this section, the court--
    (1) Receives the records of the administrative proceedings;
    (2) Hears additional evidence at the request of a party; and
    (3) Basing its decision on the preponderance of the evidence, 
grants the relief that the court determines to be appropriate.
    (d) Jurisdiction of district courts. The district courts of the 
United States have jurisdiction of actions brought under section 615 of 
the Act without regard to the amount in controversy.
    (e) Rule of construction. Nothing in this part restricts or limits 
the rights, procedures, and remedies available under the Constitution, 
the Americans with Disabilities Act of 1990, title V of the 
Rehabilitation Act of 1973, or other Federal laws protecting the rights 
of children with disabilities, except that before the filing of a civil 
action under these laws seeking relief that is also available under 
section 615 of the Act, the procedures under Sec. Sec.  303.440 and 
303.446 must be exhausted to the same extent as would be required had 
the action been brought under section 615 of the Act.

(Authority: 20 U.S.C. 1415(i)(2), 1415(i)(3)(A), 1415(l), 1439)

Sec.  303.449  State enforcement mechanisms.

    Notwithstanding Sec. Sec.  303.431(b)(6) and 303.442(d)(2), which 
provide for judicial enforcement of a written agreement reached as a 
result of a mediation or a resolution meeting, there is nothing in this 
part that would prevent the State from using other mechanisms to seek 
enforcement of that agreement, provided that use of those mechanisms is 
not mandatory and does not delay or deny a party the right to seek 
enforcement of the written agreement in a State court or competent 
jurisdiction or in a district court of the United States.

(Authority: 20 U.S.C. 1415(e)(2)(F), 1415(f)(1)(B), 1439)

Subpart F--Use of Funds and Payor of Last Resort

General


Sec.  303.500  Use of funds and payor of last resort.

    Each Statewide system must include written policies and procedures 
that meet the requirements of the--
    (a) Use of funds provisions in Sec.  303.501; and
    (b) Payor of last resort provisions in Sec. Sec.  303.510 through 
303.521 (regarding the identification and coordination of funding 
resources for, and the provision of, early intervention services under 
Part C of the Act within the State).

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10), 1435(a)(12), 1438, 
1439(a)(2), 1440)

Use of Funds


Sec.  303.501  Permissive use of funds by the lead agency.

    A lead agency may use funds under this part for activities or 
expenses that

[[Page 26524]]

are reasonable and necessary for implementing the State's early 
intervention program for infants and toddlers with disabilities 
including funds--
    (a) For direct early intervention services for infants and toddlers 
with disabilities and their families under this part that are not 
otherwise funded through other public or private sources (subject to 
Sec. Sec.  303.510 through 303.521);
    (b) To expand and improve on services for infants and toddlers with 
disabilities and their families under this part that are otherwise 
available;
    (c)(1) To provide FAPE as that term is defined in Sec.  303.15, in 
accordance with Part B of the Act, to children with disabilities from 
their third birthday to the beginning of the following school year;
    (2) The provision of FAPE under paragraph (c)(1) of this section 
does not apply to children who continue to receive early intervention 
services under this part in accordance with paragraph (d) of this 
section and Sec.  303.211;
    (d) With the written consent of the parents, to continue to provide 
early intervention services under this part, in lieu of FAPE provided 
in accordance with Part B of the Act, to children with disabilities 
from their third birthday (pursuant to Sec.  303.211) until those 
children enter, or are eligible under State law to enter, kindergarten; 
and
    (e) In any State that does not provide services under Sec.  303.204 
for at-risk infants and toddlers as defined in Sec.  303.5, to 
strengthen the statewide system by initiating, expanding, or improving 
collaborative efforts related to at-risk infants and toddlers, 
including establishing linkages with appropriate public and private 
community-based organizations, services, and personnel for the purposes 
of--
    (1) Identifying and evaluating at-risk infants and toddlers;
    (2) Making referrals for the infants and toddlers identified and 
evaluated under paragraph (e)(1) of this section; and
    (3) Conducting periodic follow-up on each referral, to determine if 
the status of the infant or toddler involved has changed with respect 
to the eligibility of the infant or toddler for services under this 
part.

(Authority: 20 U.S.C. 1435(a)(10), 1438)

Payor of Last Resort


Sec.  303.510  Payor of last resort.

    (a) Nonsubstitution of funds. Except as provided in paragraph (b) 
of this section, funds under this part may not be used to satisfy a 
financial commitment for services that would otherwise have been paid 
for from another public or private source, including any medical 
program administered by the Department of Defense, but for the 
enactment of Part C of the Act. Therefore, funds under this part may be 
used only for early intervention services that an infant or toddler 
with a disability needs but is not currently entitled to receive or 
have payment made from any other Federal, State, local, or private 
source (subject to Sec. Sec.  303.520 and 303.521).
    (b) Interim payments--reimbursement. If necessary to prevent a 
delay in the timely provision of appropriate early intervention 
services to a child or the child's family, funds under this part may be 
used to pay the provider of services (for services and functions 
authorized under this part, including health services as defined in 
Sec.  303.16 (but not medical services), child find functions described 
in Sec. Sec.  303.115 through 303.117 and Sec. Sec.  303.300 through 
303.303, and evaluations and assessments in Sec.  303.320), pending 
reimbursement from the agency or entity that has ultimate 
responsibility for the payment.
    (c) Non-reduction of benefits. Nothing in this part may be 
construed to permit a State to reduce medical or other assistance 
available or to alter eligibility under Title V of the Social Security 
Act, 42 U.S.C. 701 et seq., (SSA) (relating to maternal and child 
health) or Title XIX of the SSA, 42 U.S.C. 1396 (relating to Medicaid), 
within the State.

(Authority: 20 U.S.C. 1440(a), 1440(c))

Sec.  303.511  Establishing financial responsibility for, and methods 
of, ensuring services.

    (a) General. Each State must ensure that it has in place methods 
for establishing financial responsibility (consistent with the methods 
adopted under Part B of the Act, where appropriate) and providing early 
intervention services under this part. The methods must meet the 
requirements of this subpart, and be set forth in--
    (1) State law or regulation;
    (2) Signed interagency and intra-agency agreements between 
respective agency officials that clearly identify the financial and 
service provision responsibilities of each agency (or entity within the 
agency); or
    (3) Other appropriate written methods determined by the Governor of 
the State, or the Governor's designee, and approved by the Secretary 
through the review and approval of the State's application.
    (b) Financial responsibility. Each method must define the financial 
responsibility of each agency for paying for early intervention 
services or other functions authorized under this part including child 
find and evaluations and assessments (consistent with State law and the 
requirements of this part).
    (c) Procedures for resolving disputes. (1) Each method must include 
procedures for achieving a timely resolution of intra-agency and 
interagency disputes about payments for a given service, or disputes 
about other matters related to the State's early intervention service 
program. Those procedures must include a mechanism for resolution of 
intra-agency disputes within agencies and for the Governor, Governor's 
designee, or the lead agency to make a final determination for 
interagency disputes, which determination must be binding upon the 
agencies involved.
    (2) The method must--
    (i) Permit the agency to resolve its own internal disputes (based 
on the agency's procedures that are included in the agreement), so long 
as the agency acts in a timely manner; and
    (ii) Include the process that the lead agency will follow in 
achieving resolution of intra-agency disputes, if a given agency is 
unable to resolve its own internal disputes in a timely manner.
    (3) If, during the lead agency's resolution of the dispute, the 
Governor, Governor's designee, or lead agency determines that the 
assignment of financial responsibility under this section was 
inappropriately made--
    (i) The Governor, Governor's designee or lead agency must reassign 
the responsibility to the appropriate agency; and
    (ii) The lead agency must make arrangements for reimbursement of 
any expenditures incurred by the agency originally assigned 
responsibility.
    (d) Delivery of services in a timely manner. The methods adopted by 
the State under this section must--
    (1) Include a mechanism to ensure that no services that a child is 
entitled to receive under this part are delayed or denied because of 
disputes between agencies regarding financial or other 
responsibilities; and
    (2) Be consistent with the written funding policies adopted by the 
State under this subpart.
    (e) Additional components. Each method must include any additional 
components necessary to ensure effective cooperation and coordination 
among, and the lead agency's general supervision (including monitoring) 
of, all public agencies and early

[[Page 26525]]

intervention service providers involved in the State's early 
intervention service programs.

(Authority: 20 U.S.C. 1435(a)(10), 1440(b))

Use of Insurance, Benefits, Systems of Payments, and Fees


Sec.  303.520  Policies related to use of insurance or public benefits 
for payment for services.

    (a) Public insurance and benefits. (1) The State may use the public 
insurance or benefits program of a parent or infant or toddler with a 
disability under this part (consistent with the program requirements of 
the public insurance or benefits program), if--
    (i) The parent or the infant or toddler with a disability is 
already enrolled or participating in a public insurance or benefits 
program, provided that the parent provides consent as defined in Sec.  
303.7 to disclose personally identifiable information if required under 
Sec.  303.414;
    (ii) The parent has not provided consent under Sec. Sec.  303.7, 
303.414, or 303.420(a)(3), but the infant or toddler with a disability 
is in foster care and eligible to participate in the public insurance 
or benefits program; or
    (iii) The parent is not enrolled in a public insurance or benefits 
program but agrees to enroll and provides consent to enroll in a public 
insurance or benefits program in accordance with Sec. Sec.  303.7, 
303.414, and 303.420(a)(3).
    (2) If the State requires a parent to pay any types of costs that 
the parent may incur as a result of participating in a public insurance 
or benefits program (such as co-payments, premiums or deductibles or 
the required use of private insurance as the primary insurance), those 
types of costs must be identified in the State's policies regarding its 
system of payments under Sec.  303.521; otherwise, the State will not 
be allowed to charge those costs to the parent.
    (3) In obtaining parental consent required under this section, the 
lead agency must provide a copy of the State's system of payments 
policies that identify potential costs that the parent may incur while 
enrolled in a public insurance or benefits program (such as co-
payments, premiums or deductibles or the required use of private 
insurance as the primary insurance by the public insurance or public 
benefits program).
    (b) Private insurance. (1)(i) Except as provided in paragraph 
(b)(2) of this section, the State may use the private insurance of a 
parent to pay for services under this part only if the parent provides 
consent to do so in accordance with Sec. Sec.  303.7, 303.414, and 
303.420(a)(3).
    (ii) If the State requires a parent to pay any types of costs that 
the parent may incur as a result of the State's use of private 
insurance to pay for early intervention services, those types of costs 
(such as deductibles or co-payments) must be identified in the State's 
system of payments policies under Sec.  303.521; otherwise, the State 
will not be allowed to charge those costs to the parent.
    (iii) In obtaining parental consent required under this section, 
the lead agency must provide a copy of the State's system of payments 
policies that identify the potential types of costs that the parent may 
incur while enrolled in a private insurance program (such as co-
payments, premiums or deductibles).
    (iv) If a parent or family is determined unable to pay under the 
State's definition of inability to pay under Sec.  303.521(a)(3) and 
does not provide consent under paragraph (b)(1)(i) of this section, the 
lack of consent may not be used to delay or deny any services under 
this part to a child or the family.
    (2) The parental consent requirements in paragraph (b)(1) of this 
section do not apply if the State has enacted a State statute regarding 
private health insurance coverage for early intervention services under 
Part C of the Act that ensures that the use of private health insurance 
to pay for Part C services cannot--
    (i) Count towards the lifetime coverage caps for the infant or 
toddler with a disability and parents under their health insurance;
    (ii) Negatively affect the availability of health insurance to the 
infant or toddler with a disability and family, and health insurance 
coverage may not be discontinued due to the use of the health insurance 
to pay for services under Part C of the Act; or
    (iii) Be the basis for increasing the health insurance premiums of 
the infant or toddler with a disability or the child's family.
    (3) If a State has enacted a State statute that meets the 
requirements in paragraph (b)(2) of this section regarding private 
health insurance coverage to pay for early intervention services under 
Part C of the Act, the State may reestablish in the next Federal fiscal 
year following the effective date of the statute, a new baseline of 
State and local expenditures under Sec.  303.225(b).
    (c) Proceeds or funds from public insurance or benefits or from 
private insurance. (1) Proceeds or funds from public insurance or 
public benefits or from private insurance are not treated as program 
income for purposes of 34 CFR 80.25.
    (2) If the State receives reimbursements from Federal funds (e.g., 
Medicaid reimbursements attributable directly to Federal funds) for 
services under Part C of the Act, those funds are considered neither 
State nor local funds under Sec.  303.225(b).
    (3) If the State spends funds from a State public insurance or 
benefits program or the State portion of a Federal public benefits 
program (such as the State portion of Medicaid costs) for services 
under this part, those funds may be considered State or local funds 
under Sec.  303.225(b); however, if a State elects to include such 
funds for purposes of nonsupplanting provisions in Sec.  303.225(b), it 
must continue to aggregate such amounts for all future years.
    (4) If the State spends funds from private insurance for services 
under this part, those funds are considered neither State nor local 
funds under Sec.  303.225.
    (d) Funds received under a State's system of payments. Funds 
received by the State from a parent or family under the State's system 
of payments established under Sec.  303.521 are considered program 
income under 34 CFR 80.25. These funds--
    (1) Do not need to be deducted from the total allowable costs 
charged under Part C of the Act (as set forth in 34 CFR 80.25(g)(1));
    (2) Must be used for the State's Part C early intervention services 
program, consistent with 34 CFR 80.25(g)(2); and
    (3) Are considered neither State nor local funds under Sec.  
303.225(b).

(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10), 1439(a)(2))

Sec.  303.521  System of payments and fees.

    (a) General. A State may establish, consistent with Sec. Sec.  
303.13(a)(3) and 303.203(b), a system of payments for early 
intervention services under Part C of the Act, including a schedule of 
sliding fees or cost participation fees (such as co-pays or deductible 
amounts) required to be paid under Federal, State, local, or private 
programs of insurance or benefits for which the infant or toddler with 
a disability or family is enrolled, that meets the requirements of 
Sec. Sec.  303.520 and 303.521. The State's system of payments policies 
must be in writing and specify which functions or services, if any, 
will be subject to a system of payments (including any fees charged to 
the family as a result of using the family's public or private 
insurance), and include--
    (1) The payment system and schedule of sliding or cost 
participation fees that

[[Page 26526]]

may be charged to the parent for early intervention services under this 
part;
    (2) The basis and amount of payments or fees;
    (3) The State's definition of inability to pay (including its 
definition of income and family expenses); and
    (4) An assurance that--
    (i) Fees will not be charged to parents for the services that a 
child is otherwise entitled to receive at no cost (including those 
services identified under paragraphs (a)(4)(ii), (b), and (c) of this 
section);
    (ii) The inability of the parents of an infant or toddler with a 
disability to pay for services will not result in a delay or denial of 
services under this part to the child or the child's family such that, 
if the parent or family meets the State's definition of inability to 
pay, the infant or toddler with a disability must be provided all Part 
C services at no cost including any costs to the family under this 
section and Sec.  303.520(a)(2) and (b)(1)(ii); and
    (iii) Families will not be charged any more than the actual cost of 
the Part C service, and families with public insurance or benefits or 
private insurance will not be charged disproportionately more than 
families who do not have public insurance or benefits or private 
insurance;
    (5) Provisions stating that the failure to provide the requisite 
income information and documentation may result in a charge of a fee on 
the fee schedule and specify the fee to be charged; and
    (6) Provisions that allow but do not require the lead agency to use 
Part C or other funds to pay for any costs or fees to be paid by a 
parent under paragraph (a)(1) of this section, or Sec.  303.520(a)(2) 
or (b)(1)(ii). However, for a parent determined unable to pay under 
Sec.  303.521(a)(4)(ii), the lead agency must use Part C or other funds 
to cover the costs for the parent.
    (b) Functions not subject to fees. The following are required 
functions that must be carried out at public expense by a State, and 
for which no fees may be charged to parents:
    (1) Implementing the child find requirements in Sec. Sec.  303.301 
through 303.303.
    (2) Evaluation and assessment, in accordance with Sec.  303.320, 
and including the functions related to evaluation and assessment in 
Sec.  303.13(b).
    (3) Service coordination services, as defined in Sec. Sec.  
303.13(b)(9) and 303.33.
    (4) Administrative and coordinative activities related to--
    (i) The development, review, and evaluation of IFSPs and interim 
IFSPs in accordance with Sec. Sec.  303.342 through 303.345; and
    (ii) Implementation of the procedural safeguards in subpart E of 
this part and the other components of the statewide system of early 
intervention services in subpart D and this subpart.
    (c) States with FAPE mandates, or that use funds under Part B of 
the Act to serve children under age three. If a State has in effect a 
State law requiring the provision of FAPE for, or uses Part B funds to 
serve, an infant or toddler with a disability under the age of three 
(or any subset of infants and toddlers with disabilities under the age 
of three), the State may not charge the parents of the infant or 
toddler with a disability for any services (e.g., physical or 
occupational therapy) under this part that are part of FAPE for that 
infant or toddler and family, and those FAPE services must meet the 
requirements of both Parts B and C of the Act.
    (d) Family fees. (1) Fees or costs collected from a parent or the 
child's family to pay for early intervention services under a State's 
system of payments are program income under 34 CFR 80.25. A State may 
add this program income to its Part C grant funds, rather than 
deducting the program income from the amount of the State's Part C 
grant. Any fees collected must be used for the purposes of the grant 
under Part C of the Act.
    (2) Fees collected under a system of payments are considered 
neither State nor local funds under Sec.  303.225(b).

(Authority: 20 U.S.C. 1432(4)(B), 1440)

Subpart G--State Interagency Coordinating Council


Sec.  303.600  Establishment of Council.

    (a) A State that desires to receive financial assistance under Part 
C of the Act must establish a State Interagency Coordinating Council 
(Council) as defined in Sec.  303.8.
    (b) The Council must be appointed by the Governor. The Governor 
must ensure that the membership of the Council reasonably represents 
the population of the State.
    (c) The Governor must designate a member of the Council to serve as 
the chairperson of the Council or require the Council to do so. Any 
member of the Council who is a representative of the lead agency 
designated under Sec.  303.201 may not serve as the chairperson of the 
Council.

(Authority: 20 U.S.C. 1441(a))

Sec.  303.601  Composition.

    (a) The Council must be composed as follows:
    (1)(i) At least 20 percent of the members must be parents, 
including minority parents, of infants or toddlers with disabilities or 
children with disabilities aged 12 years or younger, with knowledge of, 
or experience with, programs for infants and toddlers with 
disabilities.
    (ii) At least one parent member must be a parent of an infant or 
toddler with a disability or a child with a disability aged six years 
or younger.
    (iii) A parent member may not be an employee of a public or private 
agency involved in providing early intervention services.
    (2) At least 20 percent of the members must be public or private 
providers of early intervention services.
    (3) At least one member must be from the State legislature.
    (4) At least one member must be involved in personnel preparation.
    (5) At least one member must--
    (i) Be from each of the State agencies involved in the provision 
of, or payment for, early intervention services to infants and toddlers 
with disabilities and their families; and
    (ii) Have sufficient authority to engage in policy planning and 
implementation on behalf of these agencies.
    (6) At least one member must--
    (i) Be from the SEA responsible for preschool services to children 
with disabilities; and
    (ii) Have sufficient authority to engage in policy planning and 
implementation on behalf of the SEA.
    (7) At least one member must be from the agency responsible for the 
State Medicaid program.
    (8) At least one member must be from a Head Start or Early Head 
Start agency or program in the State.
    (9) At least one member must be from a State agency responsible for 
child care.
    (10) At least one member must be from the agency responsible for 
the State regulation of health insurance.
    (11) At least one member must be a representative designated by the 
Office of the Coordination of Education of Homeless Children and Youth.
    (12) At least one member must be a representative from the State 
child welfare agency responsible for foster care.
    (13) At least one member must be from the State agency responsible 
for children's mental health.
    (b) The Governor may appoint one member to represent more than one 
program or agency listed in paragraphs (a)(7) through (a)(13) of this 
section.
    (c) The Council may include other members selected by the Governor, 
including a representative from the

[[Page 26527]]

Bureau of Indian Affairs (BIA) or, where there is no school operated or 
funded by the BIA, from the Indian Health Service or the tribe or 
tribal council.
    (d) No member of the Council may cast a vote on any matter that 
would provide direct financial benefit to that member or otherwise give 
the appearance of a conflict of interest under State law.

(Authority: 20 U.S.C. 1441(b), 1441(f))

Sec.  303.602  Meetings.

    (a) The Council must meet, at a minimum, on a quarterly basis, and 
in such places as it determines necessary.
    (b) The meetings must--
    (1) Be publicly announced, sufficiently in advance of the dates 
they are to be held to ensure that all interested parties have an 
opportunity to attend;
    (2) To the extent appropriate, be open and accessible to the 
general public; and
    (3) As needed, provide for interpreters for persons who are deaf 
and other necessary services for Council members and participants. The 
Council may use funds under this part to pay for those services.

(Authority: 20 U.S.C. 1441(c))

Sec.  303.603  Use of funds by the Council.

    (a) Subject to the approval by the Governor, the Council may use 
funds under this part--
    (1) To conduct hearings and forums;
    (2) To reimburse members of the Council for reasonable and 
necessary expenses for attending Council meetings and performing 
Council duties (including child care for parent representatives);
    (3) To pay compensation to a member of the Council if the member is 
not employed or must forfeit wages from other employment when 
performing official Council business;
    (4) To hire staff; and
    (5) To obtain the services of professional, technical, and clerical 
personnel, as may be necessary to carry out the performance of its 
functions under Part C of the Act.
    (b) Except as provided in paragraph (a) of this section, Council 
members must serve without compensation from funds available under Part 
C of the Act.

(Authority: 20 U.S.C. 1441(d))

Sec.  303.604  Functions of the Council--required duties.

    (a) Advising and assisting the lead agency. The Council must advise 
and assist the lead agency in the performance of its responsibilities 
in section 635(a)(10) of the Act, including--
    (1) Identification of sources of fiscal and other support for 
services for early intervention service programs under Part C of the 
Act;
    (2) Assignment of financial responsibility to the appropriate 
agency;
    (3) Promotion of methods (including use of intra-agency and 
interagency agreements) for intra-agency and interagency collaboration 
regarding child find under Sec. Sec.  303.115 and 303.301, monitoring 
under Sec.  303.120 and Sec. Sec.  303.700 through 303.708, financial 
responsibility and provision of early intervention services under 
Sec. Sec.  303.202 and 303.511, and transition under Sec.  303.209; and
    (4) Preparation of applications under this part and amendments to 
those applications.
    (b) Advising and assisting on transition. The Council must advise 
and assist the SEA and the lead agency regarding the transition of 
toddlers with disabilities to preschool and other appropriate services.
    (c) Annual report to the Governor and to the Secretary. (1) The 
Council must--
    (i) Prepare and submit an annual report to the Governor and to the 
Secretary on the status of early intervention service programs for 
infants and toddlers with disabilities and their families under Part C 
of the Act operated within the State; and
    (ii) Submit the report to the Secretary by a date that the 
Secretary establishes.
    (2) Each annual report must contain the information required by the 
Secretary for the year for which the report is made.

(Authority: 20 U.S.C. 1441(e)(1))

Sec.  303.605  Authorized activities by the Council.

    The Council may carry out the following activities:
    (a) Advise and assist the lead agency and the SEA regarding the 
provision of appropriate services for children with disabilities from 
birth through age five.
    (b) Advise appropriate agencies in the State with respect to the 
integration of services for infants and toddlers with disabilities and 
at-risk infants and toddlers and their families, regardless of whether 
at-risk infants and toddlers are eligible for early intervention 
services in the State.

(Authority: 20 U.S.C. 1441(e)(2))

Subpart H--Federal Administration and Allocation of Funds 
Monitoring, Technical Assistance, and Enforcement


Sec.  303.700  State monitoring and enforcement.

    (a) The lead agency must--
    (1) Monitor the implementation of this part;
    (2) Make determinations annually about the performance of each EIS 
program using the categories identified in Sec. Sec.  303.703(b);
    (3) Enforce this part consistent with Sec.  303.704, using 
appropriate enforcement mechanisms, which must include, if applicable, 
the enforcement mechanisms identified in Sec.  303.704(a)(1) (technical 
assistance) and (a)(2) (conditions on the lead agency's funding of EIS 
programs), (b)(2)(i) (corrective action or improvement plan) and 
(b)(2)(iv) (withholding of funds, in whole or in part by the lead 
agency), and (c)(2) (withholding of funds, in whole or in part by the 
lead agency); and
    (4) Report annually on the performance of the State and of each EIS 
program under this part as provided in Sec.  303.702.
    (b) The primary focus of the State's monitoring activities must be 
on--
    (1) Improving early intervention results and functional outcomes 
for all infants and toddlers with disabilities; and
    (2) Ensuring that EIS programs meet the program requirements under 
Part C of the Act, with a particular emphasis on those requirements 
that are most closely related to improving early intervention results 
for infants and toddlers with disabilities.
    (c) As a part of its responsibilities under paragraph (a) of this 
section, the State must use quantifiable indicators and such 
qualitative indicators as are needed to adequately measure performance 
in the priority areas identified in paragraph (d) of this section, and 
the indicators established by the Secretary for the State performance 
plans.
    (d) The lead agency must monitor each EIS program located in the 
State, using quantifiable indicators in each of the following priority 
areas, and using such qualitative indicators as are needed to 
adequately measure performance in those areas:
    (1) Early intervention services in natural environments.
    (2) State exercise of general supervision, including child find, 
effective monitoring, the use of resolution sessions (if the State 
adopts Part B due process hearing procedures under Sec.  
303.430(d)(2)), mediation, and a system of transition services as 
defined in section 637(a)(9) of the Act.
    (e) In exercising its monitoring responsibilities under paragraph 
(d) of this section, the State must ensure that when it identifies 
noncompliance with the requirements of this part by EIS

[[Page 26528]]

programs and providers, the noncompliance is corrected as soon as 
possible and in no case later than one year after the State's 
identification.

(Authority: 20 U.S.C. 1416(a), 1442)

Sec.  303.701  State performance plans and data collection.

    (a) General. Each State must have in place the performance plan 
that meets the requirements described in section 616 of the Act, is 
approved by the Secretary, includes an evaluation of the State's 
efforts to implement the requirements and purposes of Part C of the Act 
and a description of how the State will improve implementation, and 
includes measurable and rigorous targets for the indicators established 
by the Secretary under the priority areas described in Sec.  
303.700(d).
    (b) Each State must review its State performance plan at least once 
every six years and submit any amendments to the Secretary.
    (c) Data collection. (1) Each State must collect valid and reliable 
information as needed to report annually to the Secretary under Sec.  
303.702(b)(2) on the indicators established by the Secretary for the 
State performance plans.
    (2) If the Secretary permits States to collect data on specific 
indicators through State monitoring or sampling, and the State collects 
data for a particular indicator through State monitoring or sampling, 
the State must collect and report data on those indicators for each EIS 
program at least once during the six-year period of the State 
performance plan.
    (3) Nothing in Part C of the Act or these regulations may be 
construed to authorize the development of a nationwide database of 
personally identifiable information on individuals involved in studies 
or other collections of data under Part C of the Act.

(Authority: 20 U.S.C. 1416(b), 1442)

Sec.  303.702  State use of targets and reporting.

    (a) General. Each State must use the targets established in the 
State's performance plan under Sec.  303.701 and the priority areas 
described in Sec.  303.700(d) to analyze the performance of each EIS 
program in implementing Part C of the Act.
    (b) Public reporting and privacy --(1) Public report. (i) Subject 
to paragraph (b)(1)(ii) of this section, the State must--
    (A) Report annually to the public on the performance of each EIS 
program located in the State on the targets in the State's performance 
plan no later than 60 days following the State's submission of its 
annual performance report to the Secretary under paragraph (b)(2) of 
this section; and
    (B) Make the State's performance plan under Sec.  303.701(a), 
annual performance reports under paragraph (b)(2) of this section, and 
the State's annual reports on the performance of each EIS program under 
paragraph (b)(1)(i)(A) of this section available through public means, 
including by posting on the Web site of the lead agency, distribution 
to the media, and distribution to EIS programs.
    (ii) If the State, in meeting the requirements of paragraph 
(b)(1)(i)(A) of this section, collects data through State monitoring or 
sampling, the State must include in its public report on EIS programs 
under paragraph (b)(1)(i)(A) of this section the most recently 
available performance data on each EIS program and the date the data 
were collected.
    (2) State performance report. The State must report annually to the 
Secretary on the performance of the State under the State's performance 
plan.
    (3) Privacy. The State must not report to the public or the 
Secretary any information on performance that would result in the 
disclosure of personally identifiable information about individual 
children, or where the available data are insufficient to yield 
statistically reliable information.

(Authority: 20 U.S.C. 1416(b)(2)(B)-(C), 1442)

Sec.  303.703  Secretary's review and determination regarding State 
performance.

    (a) Review. The Secretary annually reviews the State's performance 
report submitted pursuant to Sec.  303.702(b)(2).
    (b) Determination--(1) General. Based on the information provided 
by the State in the State's annual performance report, information 
obtained through monitoring visits, and any other public information 
made available, the Secretary determines if the State--
    (i) Meets the requirements and purposes of Part C of the Act;
    (ii) Needs assistance in implementing the requirements of Part C of 
the Act;
    (iii) Needs intervention in implementing the requirements of Part C 
of the Act; or
    (iv) Needs substantial intervention in implementing the 
requirements of Part C of the Act.
    (2) Notice and opportunity for a hearing. (i) For determinations 
made under paragraphs (b)(1)(iii) and (b)(1)(iv) of this section, the 
Secretary provides reasonable notice and an opportunity for a hearing 
on those determinations.
    (ii) The hearing described in paragraph (b)(2) of this section 
consists of an opportunity to meet with the Assistant Secretary for 
Special Education and Rehabilitative Services to demonstrate why the 
Secretary should not make the determination described in paragraph 
(b)(1)(iii) or (iv) of this section.

(Authority: 20 U.S.C. 1416(d), 1442)

Sec.  303.704  Enforcement.

    (a) Needs assistance. If the Secretary determines, for two 
consecutive years, that a State needs assistance under Sec.  
303.703(b)(1)(ii) in implementing the requirements of Part C of the 
Act, the Secretary takes one or more of the following actions:
    (1) Advises the State of available sources of technical assistance 
that may help the State address the areas in which the State needs 
assistance, which may include assistance from the Office of Special 
Education Programs, other offices of the Department of Education, other 
Federal agencies, technical assistance providers approved by the 
Secretary, and other federally funded nonprofit agencies, and require 
the State to work with appropriate entities. This technical assistance 
may include--
    (i) The provision of advice by experts to address the areas in 
which the State needs assistance, including explicit plans for 
addressing the areas of concern within a specified period of time;
    (ii) Assistance in identifying and implementing professional 
development, instructional strategies, and methods of instruction that 
are based on scientifically based research;
    (iii) Designating and using administrators, service coordinators, 
service providers, and other personnel from the EIS program to provide 
advice, technical assistance, and support; and
    (iv) Devising additional approaches to providing technical 
assistance, such as collaborating with institutions of higher 
education, educational service agencies, national centers of technical 
assistance supported under Part D of the Act, and private providers of 
scientifically based technical assistance.
    (2) Identifies the State as a high-risk grantee and imposes special 
conditions on the State's grant under Part C of the Act.
    (b) Needs intervention. If the Secretary determines, for three or 
more consecutive years, that a State needs intervention under Sec.  
303.703(b)(1)(iii) in implementing the requirements of Part C of the 
Act, the following apply:
    (1) The Secretary may take any of the actions described in 
paragraph (a) of this section.
    (2) The Secretary takes one or more of the following actions:
    (i) Requires the State to prepare a corrective action plan or 
improvement

[[Page 26529]]

plan if the Secretary determines that the State should be able to 
correct the problem within one year.
    (ii) Requires the State to enter into a compliance agreement under 
section 457 of the General Education Provisions Act, as amended, 20 
U.S.C. 1234f (GEPA), if the Secretary has reason to believe that the 
State cannot correct the problem within one year.
    (iii) Seeks to recover funds under section 452 of GEPA, 20 U.S.C. 
1234a.
    (iv) Withholds, in whole or in part, any further payments to the 
State under Part C of the Act.
    (v) Refers the matter for appropriate enforcement action, which may 
include referral to the Department of Justice.
    (c) Needs substantial intervention. Notwithstanding paragraph (a) 
or (b) of this section, at any time that the Secretary determines that 
a State needs substantial intervention in implementing the requirements 
of Part C of the Act or that there is a substantial failure to comply 
with any requirement under Part C of the Act by the lead agency or an 
EIS program in the State, the Secretary takes one or more of the 
following actions:
    (1) Recovers funds under section 452 of GEPA, 20 U.S.C. 1234a.
    (2) Withholds, in whole or in part, any further payments to the 
State under Part C of the Act.
    (3) Refers the case to the Office of Inspector General at the 
Department of Education.
    (4) Refers the matter for appropriate enforcement action, which may 
include referral to the Department of Justice.
    (d) Report to Congress. The Secretary reports to the Committee on 
Education and Labor of the House of Representatives and the Committee 
on Health, Education, Labor, and Pensions of the Senate within 30 days 
of taking enforcement action pursuant to paragraph (a), (b), or (c) of 
this section, on the specific action taken and the reasons why 
enforcement action was taken.

(Authority: 20 U.S.C. 1416(e)(1)-(3), 1416(e)(5), 1442)

Sec.  303.705  Withholding funds.

    (a) Opportunity for hearing. Prior to withholding any funds under 
Part C of the Act, the Secretary provides reasonable notice and an 
opportunity for a hearing to the lead agency involved, pursuant to the 
procedures in Sec. Sec.  303.231 through 303.236.
    (b) Suspension. Pending the outcome of any hearing to withhold 
payments under paragraph (a) of this section, the Secretary may suspend 
payments to a recipient, suspend the authority of the recipient to 
obligate funds under Part C of the Act, or both, after the recipient 
has been given reasonable notice and an opportunity to show cause why 
future payments or authority to obligate funds under Part C of the Act 
should not be suspended.
    (c) Nature of withholding--(1) Limitation. If the Secretary 
determines that it is appropriate to withhold further payments under 
section 616(e)(2) or (e)(3) of the Act, the Secretary may determine--
    (i) That such withholding will be limited to programs or projects, 
or portions of programs or projects, that affected the Secretary's 
determination under Sec.  303.703(b)(1); or
    (ii) That the lead agency must not make further payments under Part 
C of the Act to specified State agencies or EIS providers that caused 
or were involved in the Secretary's determination under Sec.  
303.703(b)(1).
    (2) Withholding until rectified. Until the Secretary is satisfied 
that the condition that caused the initial withholding has been 
substantially rectified--
    (i) Payments to the State under Part C of the Act must be withheld 
in whole or in part; and
    (ii) Payments by the lead agency under Part C of the Act must be 
limited to State agencies and EIS providers whose actions did not cause 
or were not involved in the Secretary's determination under Sec.  
303.703(b)(1).

(Authority: 20 U.S.C. 1416(e)(4), 1416(e)(6), 1442)

Sec.  303.706  Public attention.

    Whenever a State receives notice that the Secretary is proposing to 
take or is taking an enforcement action pursuant to Sec.  303.704 the 
State must, by means of a public notice, take such measures as may be 
necessary to bring the pendency of an action pursuant to section 616(e) 
and Sec.  303.704 of the Act to the attention of the public within the 
State, including by posting the notice on the Web site of the lead 
agency and distributing the notice to the media and to EIS programs.

(Authority: 20 U.S.C. 1416(e)(7), 1442)

Sec.  303.707  Rule of construction.

    Nothing in this subpart may be construed to restrict the Secretary 
from utilizing any authority under GEPA, 20 U.S.C. 1221 et seq., and 
its regulations in 34 CFR parts 76, 77, 80 and 81, including the 
imposition of special conditions under 34 CFR 80.12, to monitor and 
enforce the requirements of the Act.

(Authority: 20 U.S.C. 1416(g), 1442)

Sec.  303.708  State enforcement.

    Nothing in this subpart may be construed to restrict a State from 
utilizing any other authority available to it to monitor and enforce 
the requirements of the Act.

(Authority: 20 U.S.C. 1416(a)(1)(C), 1442)

Reports--Program Information


Sec.  303.720  Data requirements--general.

    (a) The lead agency must annually report to the Secretary and to 
the public on the information required by section 618 of the Act at the 
times specified by the Secretary.
    (b) The lead agency must submit the report to the Secretary in the 
manner prescribed by the Secretary.

(Authority: 20 U.S.C. 1418, 1435(a)(14), 1442)

Sec.  303.721  Annual report of children served--report requirement.

    (a) For the purposes of the annual report required by section 618 
of the Act and Sec.  303.720, the lead agency must count and report the 
number of infants and toddlers receiving early intervention services on 
any date between October 1 and December 1 of each year. The report must 
include--
    (1) The number and percentage of infants and toddlers with 
disabilities in the State, by race, gender, and ethnicity, who are 
receiving early intervention services (and include in this number any 
children reported to it by tribes, tribal organization, and consortia 
under Sec.  303.731(e)(1));
    (2) The number and percentage of infants and toddlers with 
disabilities, by race, gender, and ethnicity, who, from birth through 
age 2, stopped receiving early intervention services because of program 
completion or for other reasons; and
    (3) The number and percentage of at-risk infants and toddlers (as 
defined in section 632(1) of the Act) by race and ethnicity and who are 
receiving early intervention services under Part C of the Act.
    (b) If a State adopts the option under section 635(c) of the Act 
and Sec.  303.211 to make services under this part available to 
children ages three and older, the State must submit to the Secretary a 
report on the number and percentage of children with disabilities who 
are eligible for services under section 619 of the Act but whose 
parents choose for those children to continue to receive early 
intervention services.
    (c) The number of due process complaints filed under section 615 of 
the Act, the number of hearings conducted and the number of mediations 
held, and the number of

[[Page 26530]]

settlement agreements reached through such mediations.

(Authority: 20 U.S.C. 1418(a)(1)(F) and (H), 1435(a)(14), 
1435(c)(3), 1442)

Sec.  303.722  Data reporting.

    (a) Protection of identifiable data. The data described in section 
618(a) of the Act and in Sec.  303.721 must be publicly reported by 
each State in a manner that does not result in disclosure of data 
identifiable to individual children.
    (b) Sampling. The Secretary may permit States and outlying areas to 
obtain data in section 618(a) of the Act through sampling.

(Authority: 20 U.S.C. 1418(b), 1435(a)(14), 1442)

Sec.  303.723  Annual report of children served--certification.

    The lead agency must include in its report a certification signed 
by an authorized official of the agency that the information provided 
under Sec.  303.721 is an accurate and unduplicated count of infants 
and toddlers with disabilities receiving early intervention services.

(Authority: 20 U.S.C. 1418(a)(3), 1435(a)(14), 1442)

Sec.  303.724  Annual report of children served--other responsibilities 
of the lead agency.

    In addition to meeting the requirements of Sec. Sec.  303.721 
through 303.723, the lead agency must--
    (a) Establish procedures to be used by EIS providers in counting 
the number of children with disabilities receiving early intervention 
services;
    (b) Establish dates by which those EIS providers must report to the 
lead agency to ensure that the State complies with Sec.  303.721(a);
    (c) Obtain certification from each EIS provider that an 
unduplicated and accurate count has been made;
    (d) Aggregate the data from the count obtained from each EIS 
provider, and prepare the reports required under Sec. Sec.  303.721 
through 303.723; and
    (e) Ensure that documentation is maintained to enable the State and 
the Secretary to audit the accuracy of the count.

(Authority: 20 U.S.C. 1418(a), 1435(a)(14), 1442)

Allocation of Funds


Sec.  303.730  Formula for State allocations.

    (a) Reservation of funds for outlying areas. From the sums 
appropriated to carry out Part C of the Act for any fiscal year, the 
Secretary may reserve not more than one percent for payments to 
American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, 
and the United States Virgin Islands in accordance with their 
respective needs for assistance under Part C of the Act.
    (b) Consolidation of funds. The provisions of the Omnibus 
Territories Act of 1977, Pub. L. 95-134, permitting the consolidation 
of grants to the outlying areas, do not apply to the funds provided 
under Part C of the Act.

(Authority: 20 U.S.C. 1443(a))

Sec.  303.731  Payments to Indians.

    (a) General. (1) The Secretary makes payments to the Secretary of 
the Interior under Part C of the Act, which the Secretary of the 
Interior must distribute to tribes or tribal organizations (as defined 
under section 4 of the Indian Self-Determination and Education 
Assistance Act, as amended, 25 U.S.C. 450b), or consortia of those 
entities, for the coordination of assistance in the provision of early 
intervention services by States to infants and toddlers with 
disabilities and their families on reservations served by elementary 
and secondary schools for Indian children operated or funded by the 
Secretary of the Interior.
    (2) A tribe, tribal organization or consortium of those entities is 
eligible to receive a payment under this section if the tribe, tribal 
organization or consortium of those entities is on a reservation that 
is served by an elementary or secondary school operated or funded by 
the Secretary of the Interior.
    (3) The amount of the payment to the Secretary of the Interior 
under this section for any fiscal year is 1.25 percent of the aggregate 
amount available to all States under Part C of the Act after the 
Secretary determines the amount of payments to be made to the 
jurisdictions under Sec.  303.730(a).
    (b) Allocation. For each fiscal year, the Secretary of the Interior 
must distribute the entire payment received under paragraph (a)(1) of 
this section by providing to each tribe, tribal organization, or 
consortium an amount based on the number of infants and toddlers 
residing on the reservation, as determined annually, divided by the 
total of those children served by all tribes, tribal organizations, or 
consortia.
    (c) Information. To receive a payment under this section, the 
tribe, tribal organization, or consortium must submit the appropriate 
information to the Secretary of the Interior to determine the amounts 
to be distributed under paragraph (b) of this section.
    (d) Use of funds. (1) The funds received by a tribe, tribal 
organization, or consortium must be used to assist States in child 
find, screening, and other procedures for the early identification of 
Indian children under three years of age and for parent training. The 
funds also may be used to provide early intervention services in 
accordance with Part C of the Act. These activities may be carried out 
directly or through contracts or cooperative agreements with the Bureau 
of Indian Affairs, local educational agencies, and other public or 
private nonprofit organizations. The tribe, tribal organization, or 
consortium is encouraged to involve Indian parents in the development 
and implementation of these activities.
    (2) The tribe, tribal organization, or consortium must, as 
appropriate, make referrals to local, State, or Federal entities for 
the provision of services or further diagnosis.
    (e) Reports. (1) To be eligible to receive a payment under 
paragraph (b) of this section, a tribe, tribal organization, or 
consortium must make a biennial report to the Secretary of the Interior 
of activities undertaken under this section, including the number of 
contracts and cooperative agreements entered into, the number of 
infants and toddlers contacted and receiving services for each year, 
and the estimated number of infants and toddlers needing services 
during the two years following the year in which the report is made. 
This report must include an assurance that the tribe, tribal 
organization, or consortium has provided the lead agency in the State 
child find information (including the names and dates of birth and 
parent contact information) for infants or toddlers with disabilities 
who are included in the report in order to meet the child find 
coordination and child count requirements in sections 618 and 643 of 
the Act.
    (2) The Secretary of the Interior must include a summary of this 
information (including confirmation that each tribe, tribal 
organization, or consortium has provided to the Secretary of the 
Interior the assurance required under paragraph (e)(1) of this section) 
on a biennial basis to the Secretary along with such other information 
as required of the Secretary of the Interior under Part C of the Act. 
The Secretary may require any additional information from the Secretary 
of the Interior.
    (3) Within 90 days after the end of each fiscal year the Secretary 
of the Interior must provide the Secretary with a report on the 
payments distributed under this section. The report must include--
    (i) The name of each tribe, tribal organization, or combination of 
those entities that received a payment for the fiscal year;
    (ii) The amount of each payment; and

[[Page 26531]]

    (iii) The date of each payment.
    (f) Prohibited uses of funds. None of the funds under this section 
may be used by the Secretary of the Interior for administrative 
purposes, including child count and the provision of technical 
assistance.

(Authority: 20 U.S.C. 1443(b))

Sec.  303.732  State allotments.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, for each fiscal year, from the aggregate amount of funds 
available under Part C of the Act for distribution to the States, the 
Secretary allots to each State an amount that bears the same ratio to 
the aggregate amount as the number of infants and toddlers in the State 
bears to the number of infants and toddlers in all States.
    (b) Minimum allocations. Except as provided in paragraph (c) of 
this section, no State may receive less than 0.5 percent of the 
aggregate amount available under this section or $500,000, whichever is 
greater.
    (c) Ratable reduction--(1) General. If the sums made available 
under Part C of the Act for any fiscal year are insufficient to pay the 
full amount that all States are eligible to receive under this section 
for that year, the Secretary ratably reduces the allotments to those 
States for such year.
    (2) Additional funds. If additional funds become available for 
making payments under this section, allotments that were reduced under 
paragraph (c)(1) of this section will be increased on the same basis 
the allotments were reduced.
    (d) Definitions. For the purpose of allotting funds to the States 
under this section--
    (1) Aggregate amount means the amount available for distribution to 
the States after the Secretary determines the amount of payments to be 
made to the Secretary of the Interior under Sec.  303.731 and to the 
outlying areas under Sec.  303.730;
    (2) Infants and toddlers means children from birth through age two 
in the general population, based on the most recent satisfactory data 
as determined by the Secretary; and
    (3) State means each of the 50 States, the District of Columbia, 
and the Commonwealth of Puerto Rico.

(Authority: 20 U.S.C. 1443(c))

Sec.  303.733  Reallotment of funds.

    If a State (as defined in Sec.  303.33) elects not to receive its 
allotment, the Secretary reallots those funds among the remaining 
States (as defined in Sec.  303.732(d)(3)), in accordance with Sec.  
303.732(c)(2).

(Authority: 20 U.S.C. 1443(d))

Sec.  303.734  Reservation for State incentive grants.

    (a) General. For any fiscal year for which the amount appropriated 
pursuant to the authorization of appropriations under section 644 of 
the Act exceeds $460,000,000, the Secretary reserves 15 percent of the 
appropriated amount exceeding $460,000,000 to provide grants to States 
that are carrying out the policy described in section 635(c) of the Act 
and in Sec.  303.211, in order to facilitate the implementation of that 
policy.
    (b) Amount of grant--(1) General. Notwithstanding section 643(c)(2) 
and (c)(3) of the Act, the Secretary provides a grant to each State 
under this section in an amount that bears the same ratio to the amount 
reserved under paragraph (a) of this section as the number of infants 
and toddlers in the State bears to the number of infants and toddlers 
in all States receiving grants under paragraph (a) of this section.
    (2) Maximum amount. No State may receive a grant under paragraph 
(a) for any fiscal year in an amount that is greater than 20 percent of 
the amount reserved under that paragraph for the fiscal year.
    (c) Carryover of amounts pursuant to section 643(e)(3) of the Act--
(1) First succeeding fiscal year. Pursuant to section 421(b) of GEPA, 
20 U.S.C. 1221 et seq., amounts under a grant provided under paragraph 
(a) of this section that are not obligated and expended prior to the 
beginning of the first fiscal year succeeding the fiscal year for which 
those amounts were appropriated must remain available for obligation 
and expenditure during the first succeeding fiscal year.
    (2) Second succeeding fiscal year. Amounts under a grant provided 
under paragraph (a) of this section that are not obligated and expended 
prior to the beginning of the second fiscal year succeeding the fiscal 
year for which those amounts were appropriated must be returned to the 
Secretary and used to make grants to States under section 633 of the 
Act (from their allotments identified in Sec. Sec.  303.731 through 
303.733) during the second succeeding fiscal year.

(Authority: 20 U.S.C. 1443)


[FR Doc. 07-2140 Filed 5-4-07; 8:45 am]
BILLING CODE 4000-01-P