[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Rules and Regulations]
[Pages 60140-60309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22783]
[[Page 60139]]
Vol. 76
Wednesday,
No. 188
September 28, 2011
Part II
Department of Education
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34 CFR Parts 300 and 303
Early Intervention Program for Infants and Toddlers With Disabilities;
Assistance to States for the Education of Children With Disabilities;
Final Rule and Proposed Rule
Federal Register / Vol. 76 , No. 188 / Wednesday, September 28, 2011
/ Rules and Regulations
[[Page 60140]]
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DEPARTMENT OF EDUCATION
34 CFR Part 303
RIN 1820-AB59
Early Intervention Program for Infants and Toddlers With
Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary issues final regulations governing the Early
Intervention Program for Infants and Toddlers with Disabilities. These
regulations are needed to reflect changes made to the Individuals with
Disabilities Education Act, as amended by the Individuals with
Disabilities Education Improvement Act of 2004 (Act or IDEA).
DATES: These regulations are effective on October 28, 2011.
FOR FURTHER INFORMATION CONTACT: Alexa Posny, U.S. Department of
Education, 550 12th Street, SW., Potomac Center Plaza, room 5107,
Washington, DC 20202-2641. Telephone: (202) 245-7605. If you use a
telecommunications device for the deaf (TDD), you may call the Federal
Relay System (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: These regulations implement changes in the
regulations governing the Early Intervention Program for Infants and
Toddlers with Disabilities necessitated by the reauthorization of the
IDEA.
On May 9, 2007, the U.S. Department of Education (the Department)
published a notice of proposed rulemaking in the Federal Register (72
FR 26456) (NPRM) to amend the regulations governing the Early
Intervention Program for Infants and Toddlers with Disabilities. In the
preamble to the NPRM, the Secretary discussed, on pages 26456 through
26496, the changes proposed to the regulations for this program, which
regulations are set forth in 34 CFR part 303.
In these regulations, the Department is amending and finalizing the
regulations proposed in the May 2007 NPRM, except in the maintenance of
effort (MOE) provisions (proposed Sec. 303.225) (which implement part
C's supplement not supplant requirements). The Department plans to
obtain additional public input and conduct further rulemaking in this
area.
Due to the economic changes that many States have experienced since
the publication of the NPRM in May 2007, the Department has received
many informal inquiries requesting guidance on the MOE provisions in
the part C regulations (which implement the supplement not supplant
requirements under part C of the Act). States also have expressed
concern about their ability to meet the MOE requirements and their
continued participation in the part C program. In response to these
concerns, the Department intends to issue a separate NPRM and seek
input from the public on the MOE provisions. Accordingly, these final
regulations continue in Sec. 303.225 the MOE requirements in current
Sec. 303.124.
Major Changes in the Regulations
The following is a summary of the major changes in these final
regulations from the regulations proposed in the NPRM (the rationale
for each of these changes is discussed in the Analysis of Comments and
Changes section of this preamble):
Subpart A--General
Definitions
The definition of multidisciplinary in Sec. 303.24 has
been revised with respect to the individualized family service plan
(IFSP) Team composition to require the parent and two or more
individuals from separate disciplines or professions with one of these
individuals being the service coordinator.
Revised Sec. 303.25(a) and new Sec. 303.321(a)(5) and
(a)(6) clarify that in the case of a child who is limited English
proficient, native language means the language normally used by the
parents of the child except that when conducting evaluations and
assessments of the child, qualified personnel determine whether it is
developmentally appropriate to use the language normally used by the
child. Additionally, we have removed the requirement in proposed Sec.
303.25(a)(2) that the native language of the parents be used in all
direct contact with the child.
We have revised the definition of personally identifiable
information in Sec. 303.29 to cross-reference, with appropriate
modifications, the definition of that same term contained in the
regulations under the Family Educational Rights and Privacy Act (FERPA)
in 34 CFR 99.3, as amended.
New Sec. 303.32 adds to these regulations a definition of
scientifically based research, which cross-references, with appropriate
modifications, the definition of the same term contained in section
9101(37) of the Elementary and Secondary Education Act of 1965, as
amended (ESEA).
Subpart C--State Application and Assurances
Application Requirements
Section 303.203(b)(2) clarifies that the State's
application must include, as part of coordination of all resources,
those methods the State uses to implement the payor of last resort
requirements in Sec. 303.511.
Revised Sec. 303.208(b), regarding public participation
policies and procedures, requires lead agencies to hold public
hearings, provide at least 30 days' prior notice for the hearings, and
provide a public comment period of at least 30 days before adopting any
new or revised part C policies or procedures.
Revised Sec. 303.209(b)(1)(i) (proposed Sec.
303.209(b)(2)(i)) requires that, for toddlers with disabilities who may
be eligible for preschool services under part B of the Act, the lead
agency notify (consistent with any opt-out policy adopted by the State
under Sec. 303.401(e)), not only the local educational agency (LEA)
where the toddler resides, but also the State educational agency (SEA),
and revise the timeline for the notification to occur not fewer than 90
days before the toddler's third birthday.
New Sec. 303.209(b)(1)(ii) clarifies that if the lead
agency determines a child to be eligible for part C services between 45
and 90 days prior to the toddler's third birthday, the lead agency must
notify (consistent with any opt-out policy adopted by the State under
Sec. 303.401(e)), not only the LEA where the toddler resides, but also
the SEA, as soon as possible after the toddler's eligibility
determination.
New Sec. 303.209(b)(1)(iii) provides that if a child is
referred to the lead agency fewer than 45 days before that toddler's
third birthday, the lead agency is not required to conduct the initial
evaluation, assessment, or IFSP meeting, and if that child may be
eligible for preschool services or other services under part B of the
Act, the lead agency, with the parental consent required under Sec.
303.414, must refer the toddler to the SEA and appropriate LEA.
Revised Sec. 303.209(d)(2) clarifies that the transition
plan is not a separate document, but is included in the IFSP.
New Sec. 303.209(e) clarifies that a transition
conference under Sec. 303.209(c) or meeting to develop the transition
plan under Sec. 303.209(d) must meet the
[[Page 60141]]
IFSP meeting requirements in Sec. Sec. 303.342(d) and (e) and
303.343(a) and that this conference and meeting may be combined.
New Sec. 303.209(f) clarifies when and what transition
requirements in Sec. 303.209 apply to toddlers with disabilities,
including toddlers in a State that elects to offer part C services
beyond age three under Sec. 303.211.
Revised Sec. 303.211(b)(6) clarifies the transition
requirements that apply to children receiving services under Sec.
303.211 as they transition to preschool, kindergarten or elementary
school.
Proposed Sec. 303.225 has been revised to include the MOE
requirements in current Sec. 303.124. The Department intends to issue
an NPRM on the MOE provisions and provide an opportunity for the public
to comment on the proposed rule.
Subpart D--Child Find, Evaluations and Assessments, and Individualized
Family Service Plans
General
New Sec. 303.300 identifies the major components of the
statewide comprehensive, coordinated, multidisciplinary interagency
system by specifically distinguishing between pre-referral activities
(public awareness and child find), referral, and post-referral IFSP
activities (including screening, evaluations, assessments, and IFSP
development, review, and implementation).
Pre-Referral Procedures
Revised Sec. 303.301(c) (proposed Sec. 303.300(c))
requires each lead agency, as part of its public awareness obligation,
to provide for informing parents of toddlers about preschool programs
under section 619 of the Act not fewer than 90 days prior to the
toddler's third birthday.
Revised new Sec. 303.302(c)(1)(ii) (proposed Sec.
303.301(c)(1)(ii)) adds the following two programs to the list of
programs with which the lead agency must coordinate its child find
efforts: (1) The Children's Health Insurance Program (CHIP) and (2) the
State Early Hearing Detection and Intervention (EHDI) system. Since the
publication of the May 2007 NPRM, the name of the State Children's
Health Insurance Program (S-Chip) was changed to the ``Children's
Health Insurance Program (CHIP).'' This change is reflected in these
final regulations.
Revised Sec. 303.303(a)(2)(i) requires primary referral
sources to refer a child to the part C program ``as soon as possible
but in no case more than seven days'' after identification.
Post-Referral Procedures
New Sec. 303.310 (proposed Sec. 303.320(e)(1)) requires
that, within 45 days after the lead agency or early intervention
service (EIS) provider receives a referral of a child, the screening
(if applicable), initial evaluation, initial assessments (of the child
and family), and the initial IFSP meeting for that child must be
completed (45-day timeline).
New Sec. 303.310(b)(2) adds an exception to the 45-day
timeline if the parent has not provided consent to the initial
screening, evaluation, or assessment of the child, despite documented,
repeated attempts to obtain parental consent. Revised Sec. 303.310(c)
(proposed Sec. 303.320(e)(2)) requires the lead agency to ensure
completion of the initial evaluation, assessments, and IFSP meeting as
soon as possible after parental consent is provided.
Revised Sec. 303.320 (proposed Sec. 303.303) requires
the lead agency to provide notice to parents of its intent to screen
and clarifies that, at any time during the screening process, a parent
may request an evaluation.
Revised Sec. 303.321(a)(2)(i) (proposed Sec. 303.320)
clarifies that (1) the term initial evaluation refers to the evaluation
of a child that is used to determine his or her initial eligibility
under part C of the Act and (2) the term initial assessments refers to
the assessment of the child and the family assessment that are
conducted prior to the child's first IFSP meeting.
New Sec. 303.322 clarifies that the prior written notice
requirements in Sec. 303.421 apply when the lead agency determines,
after conducting an evaluation, that a child is not an infant or
toddler with a disability.
Revised Sec. 303.342(e) requires early intervention
services to be provided as soon as possible after parental consent.
Subpart E--Procedural Safeguards
Confidentiality of Personally Identifiable Information and Early
Intervention Records
New Sec. 303.404(d) requires that the general notice
provided to parents by the lead agency specify the extent to which that
notice is provided in the native languages of the various population
groups in the State.
Section 303.405(a), regarding a parent's rights to inspect
and review any early intervention records and the timeline the lead
agency must follow any time a parent makes such a request, is revised
to require that the participating agency must comply with a parent's
request without unnecessary delay and in no case more than 10 days
after the parent makes the request to inspect and review records.
New Sec. 303.409(c) requires the participating agency to
provide at no cost to the parent, a copy of each evaluation, assessment
of the child, family assessment, and IFSP as soon as possible after
each IFSP meeting.
Section 303.414(b) sets forth the specific exceptions to
the parental consent required before a participating agency may
disclose personally identifiable information under these regulations.
Proposed Sec. 303.414(d), regarding limited disclosures
of personally identifiable information in early intervention records
that may be sought by Protection and Advocacy (P&A) agencies, has been
removed.
Parental Consent and Surrogate Parents
Section 303.420(c) is revised to indicate that a lead
agency may not use the due process hearing procedures under this part
or under part B of the Act to challenge a parent's refusal to provide
any consent required under Sec. 303.420(a), which includes consent for
evaluations and assessments.
New Sec. 303.422(g), concerning lead agency
responsibility concerning surrogate parents, adds a 30-day timeline
requirement regarding the lead agency's obligation to make reasonable
efforts to ensure the assignment of a surrogate parent after a public
agency determines that the child needs a surrogate parent.
Dispute Resolution Options
New Sec. 303.437(c) permits the due process hearing
officer, in a State that elects to adopt the part C due process hearing
procedures under Sec. 303.430(d)(1), to grant specific extensions of
time beyond the 30-day timeline at the request of either party.
Section 303.446 is revised to permit, but not require, the
lead agency to establish procedures that would allow any party
aggrieved by the findings and decision in the due process hearing to
appeal to, or request reconsideration of the decision by, the lead
agency.
Subpart F--Use of Funds and Payor of Last Resort
Section 303.520(a) establishes three new requirements that
are designed to provide important protections for parents of infants
and toddlers with disabilities balanced against the need for States to
have access to public benefits and public insurance to finance part C
services while implementing the system of payments, coordination of
[[Page 60142]]
funding sources, and payor of last resort requirements under part C of
the Act. Under this section, a State must obtain a parent's consent
prior to requiring a parent to enroll in a public benefits or insurance
program or if the use of funds from a public benefits or insurance
program imposes certain costs on the parent. This section also requires
a State to provide written notice to parents of applicable
confidentiality and no-cost protections if the State lead agency or EIS
provider or program uses public benefits or insurance to pay for part C
services.
Section 303.521(a) is revised to provide that the State's
system of payments policies must include the State's definition of
ability to pay and indicate when and how the agency makes its
determination regarding the parent's ability or inability to pay.
A new Sec. 303.521(e) is added to address a parent's
procedural safeguard rights under a State's system of payments.
Subpart G--State Interagency Coordinating Council
Proposed Sec. 303.601(a), which states that a parent
member on the Council may not be an employee of a public or private
agency involved in providing early intervention services, has been
removed.
New Sec. 303.605(c) permits the Council to coordinate and
collaborate with the State Advisory Council on Early Childhood
Education and Care, which is required to be established by States under
the Improving Head Start for School Readiness Act of 2007.
Subpart H--Federal and State Monitoring and Enforcement; Reporting; and
Allocation of Funds
Section 303.702(b) has been revised to indicate that the
State annual reporting to the public, on the performance of each EIS
program in relation to the State's Annual Performance Report (APR)
targets must be ``as soon as practicable but no later than 120 days''
following the State's APR submission to the Secretary.
These final regulations contain additional changes from the NPRM
that we explain in the following Analysis of Comments and Changes.
Analysis of Comments and Changes
Introduction
In response to the invitation in the NPRM, more than 600 parties
submitted comments on the proposed regulations. An analysis of the
comments and of the changes in the regulations since publication of the
NPRM immediately follows this introduction. The perspectives of
parents, individuals with disabilities, early intervention providers,
State and local officials, members of Congress, and others were useful
in helping identify where changes to the proposed regulations should be
made, and in formulating many of the changes. In light of the comments
received, a number of significant changes are reflected in these final
regulations.
Substantive issues are discussed under their corresponding subpart.
References to subparts in this analysis are to those contained in the
final regulations. The analysis generally does not address--
(a) Minor changes, including technical changes made to the language
published in the NPRM;
(b) Suggested changes the Secretary is not legally authorized to
make under applicable statutory authority; and
(c) Comments that express concerns of a general nature about the
Department or other matters that are not directly relevant to these
regulations, including requests for information about innovative early
intervention methods or matters that are within the purview of State
and local decision-makers.
Subpart A--General
Purpose and Applicable Regulations
Purpose of the Early Intervention Program for Infants and Toddlers With
Disabilities (Sec. 303.1)
Comment: A few commenters recommended revising the title of Sec.
303.1 to replace ``early intervention program'' with ``early
intervention system.'' These commenters stated that the word ``system''
is consistent with the language in the Act, other recent regulatory
changes, and the intent of coordinated interagency efforts.
Discussion: The title of this section refers to the overall
purposes of the Federal early intervention program that the Department
administers under part C of the Act and is being implemented through
these regulations. The term is not intended to refer to the early
intervention systems that States must develop and implement under part
C of the Act. Therefore, the title of this section has not been
changed.
Changes: None.
Purpose of the Early Intervention Program for Infants and Toddlers With
Disabilities (Sec. 303.1(d))
Comment: One commenter suggested that the list of historically
underrepresented populations in Sec. 303.1(d) be revised to include
infants and toddlers with disabilities who are wards of the State and
homeless children. Other commenters recommended that we include infants
and toddlers in foster care in this list.
Discussion: The historically underrepresented populations listed in
Sec. 303.1(d) are the same as those listed in section 631(a)(5) of the
Act, which refers to the need to enhance capacity 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.
The list in Sec. 303.1(d) is not exhaustive. Rather, this list
provides examples of historically underrepresented populations, for
whom State and local agencies and EIS providers need to improve
services. For this reason, including children who are wards of the
State and homeless children in Sec. 303.1(d) is not necessary. We also
note that other sections of the Act and these regulations identify
specific child find and other responsibilities of States for
identifying, evaluating, and meeting the needs of children who are
homeless and wards of the State. For example, Sec. 303.101(a)(1)(ii)
through (a)(1)(iii) requires a State, as a condition of receiving part
C funds, to provide an assurance that the State has adopted a policy to
make appropriate early intervention services available to infants and
toddlers with disabilities who are homeless and their families and
infants and toddlers with disabilities who are wards of the State.
Concerning the specific comment that infants and toddlers in foster
care should be included in the list, we note that the list in Sec.
303.1(d) already includes ``infants and toddlers in foster care.''
Changes: None.
Eligible Recipients of an Award and Applicability of This Part (Sec.
303.2)
Comment: One commenter indicated that tribal programs and tribal
governments should be included in the list of eligible recipients of an
award in Sec. 303.2.
Discussion: Section 303.2 provides that the Secretary of the
Interior is an eligible recipient of funds under part C of the Act.
Under section 643(b)(2) of the Act, the Department of Interior, through
the Bureau of Indian Education, distributes part C funds to Indian
entities that are eligible to receive services and funding from the
United States. Under section 643(b)(1) of the Act, the Department must
distribute part C funds that are used by tribal programs and
governments to the Secretary of the
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Interior and not directly to tribal programs and governments.
Therefore, it would be inappropriate to list these entities as eligible
recipients.
Changes: None.
Applicable Regulations (Sec. 303.3)
Comment: Some commenters expressed concern with and were confused
by the multiple terms used to refer to early intervention records
across the subparts. The commenters noted, for example, that the
proposed regulations use the terms ``part C records,'' ``early
intervention records,'' ``education records,'' and ``the records.''
Discussion: We agree that using multiple terms to refer to early
intervention records is confusing and, therefore, we have changed all
references to ``part C records,'' ``education records,'' and ``the
records'' in this part to ``early intervention records.'' Additionally,
we have added paragraph (b)(2) to Sec. 303.3 to indicate that any
reference to ``records'' or ``education records'' in the applicable
regulations means the early intervention records under this part.
Changes: We have changed all references to ``part C records,''
``education records,'' and ``the records'' in this part to ``early
intervention records.'' Consequently, the reference to ``part C
records'' in Sec. 303.401(b)(2), regarding confidentiality procedures
and the parents' opportunity to inspect and review all part C records,
has been changed to ``part C early intervention records.'' Also, the
proposed phrase ``education records'' has been changed to ``early
intervention records'' in Sec. 303.403(b), regarding the definition of
early intervention records; Sec. 303.405(a), regarding parents' right
to access such records; Sec. 303.405(b), regarding what the right to
inspect and review early intervention records includes; Sec. 303.406,
regarding the record of access; Sec. 303.407, regarding records on
more than one child; Sec. 303.408, regarding the requirement that
agencies must provide parents, upon request, a list of the types and
locations of early intervention records collected, maintained, or used
by the agency; Sec. 303.410(a), regarding amendment of records at the
parents' request; and Sec. 303.411, regarding the opportunity for a
hearing to challenge information in early intervention records.
Finally, the references to ``the records'' in the following
regulations have been replaced with ``early intervention records'':
Sec. 303.7(b), regarding the definition of consent; Sec.
303.310(c)(1), regarding the documentation of exceptional circumstances
that may delay the evaluation and initial assessment of a child; Sec.
303.405(b)(1), regarding parents' right to a response to reasonable
requests for explanations and interpretations of early intervention
records; Sec. 303.405(b)(2), regarding parents' right to request that
a participating agency provide copies of early intervention records;
Sec. 303.405(b)(3), regarding parents' right to have a representative
of the parents inspect and review the early intervention records; Sec.
303.406, regarding the maintenance of a record of parties obtaining
access to early intervention records; Sec. 303.412(b), regarding the
right of parents to place a statement commenting on information or
disagreeing with the decision of the agency following a hearing to
challenge information in early intervention records; Sec. 303.412(c),
regarding the maintenance of any such explanation in the child's
record; Sec. 303.412(c)(1), regarding the length of time any
explanation must be maintained as part of the early intervention
records; Sec. 303.412(c)(2), regarding the disclosure of any
explanation placed in the early intervention records, and Sec.
303.414(b)(2) regarding the modification provisions in applying the
exceptions under FERPA to the part C program.
Additionally, we have added Sec. 303.3(b)(2) to indicate that any
reference to ``education records'' in EDGAR means ``early intervention
records'' under this part.
Eligible Recipients of an Award (Proposed Sec. 303.2) and Limitation
on Eligible Children (Current Sec. 303.4)
Comment: Many commenters opposed our proposal to remove current
Sec. 303.4, which provides that part 303 does not apply to any child
with a disability who is receiving a free appropriate public education
(FAPE), in accordance with the part B regulations in 34 CFR part 300.
The commenters stated that this long-standing provision was an
important component of State EIS systems for children who are
transitioning from services under part C of the Act to services under
part B of the Act. One commenter suggested retaining current Sec.
303.4 because the regulation helped to clarify that children receiving
part C services do not also receive FAPE under part B of the Act. The
commenter also indicated that it is important to clarify to whom the
part C regulations apply.
Discussion: We agree with the commenters and have included the
language from current Sec. 303.4 in a new paragraph (b) under Sec.
303.2 to clarify that the regulations in part 303 do not apply to a
child with a disability who is receiving FAPE under part B of the Act.
We also have modified this provision to identify the entities that
must comply with part 303. Part 303 applies to the lead agency and any
EIS provider that is part of the part C statewide system of early
intervention required of each State in sections 634 and 635 of the Act,
regardless of whether the EIS provider receives funds under part C of
the Act. part 303 also applies to each child referred to part C, as
well as to infants and toddlers with disabilities (i.e., children
determined eligible for services under part C of the Act) and the
families of these children, consistent with the definitions of child in
Sec. 303.6 and infant or toddler with a disability in Sec. 303.21.
Changes: We have revised the title of Sec. 303.2 to read
``Eligible recipients of an award and applicability of this part.'' We
have added a new paragraph (b) to provide that the provisions of part
303 apply to the lead agency and any EIS provider that is part of the
part C statewide system of early intervention services, regardless of
whether that EIS provider receives funds under part C of the Act, and
to all children referred to the part C program and infants and toddlers
with disabilities and their families. New paragraph (b) also provides
that part 303 does not apply to a child with a disability receiving a
free appropriate public education or FAPE under 34 CFR part 300.
At-Risk Infant or Toddler (Sec. 303.5)
Comment: Two commenters supported the proposed definition of at-
risk infant or toddler in Sec. 303.5. Other commenters recommended
revising the definition to expand the list of factors that could cause
an infant or toddler to be considered at-risk. The suggested factors
included exposure to lead paint, alcohol abuse, fetal alcohol syndrome,
abandonment, post-natal drug exposure, homelessness, and family
violence. One commenter suggested the list of factors be preceded by
the phrase ``including, but not limited to.''
Discussion: The list of factors that may contribute to an infant or
toddler being considered at-risk for a developmental delay included in
Sec. 303.5 is not meant to be exhaustive. We have not expanded this
list further because Sec. 303.5 provides a sufficient number and range
of factors that a State may include in its definition of at-risk infant
or toddler for each State to understand the scope of the regulation.
Further, Sec. 303.5 provides discretion and flexibility for each State
to define at-risk infant or toddler and determine the factors that may
contribute to an infant or toddler being considered at-risk for a
[[Page 60144]]
developmental delay in light of the unique needs of the State's at-risk
population. Therefore, revising the definition of at-risk infant or
toddler to expand the list of factors included in the definition is not
necessary.
For clarity, we have replaced the phrase ``such as,'' which
precedes the list of factors, with the word ``including.'' We note that
the definitions of include and including in Sec. 303.18 clarify that
the items named in a particular list are not all of the possible items
that are covered, whether like or unlike the ones named. This change
clarifies that the list of factors is not exhaustive.
Changes: We have replaced the phrase ``such as'' with the word
``including.''
Comment: A few commenters expressed concern that Federal funding of
part C of the Act is not sufficient to serve at-risk infants and
toddlers and that the inclusion of Sec. 303.5 may give parents the
impression that early intervention services are available for at-risk
infants and toddlers, when these services are not always available.
Discussion: The statute permits, but does not require, States to
offer services to at-risk infants and toddlers. A definition of at-risk
infant or toddler is necessary to guide implementation by States that
choose to provide early intervention services to at-risk infants and
toddlers. If a State chooses to provide these services, the State,
pursuant to Sec. 303.204(a), must provide a definition of at-risk
infant or toddler and a description of the services available to these
children in the information the lead agency provides to parents and
primary referral sources through the State's public awareness program,
as required under Sec. 303.301. For those States that choose to
provide part C early intervention services to at-risk infants and
toddlers, the definition of at-risk infant or toddler in Sec. 303.5,
which aligns with the statutory definition, provides the information
States need to meet the part C requirements.
Changes: None.
Comment: None.
Discussion: As proposed, the definition of at-risk infant or
toddler provided that, at the State's discretion, an at-risk infant or
toddler may include an infant or toddler who is at risk of experiencing
developmental delay because of biological and environmental factors,
including those listed in the proposed definition. We have determined
that this language should be clarified to provide that the term at-risk
infant or toddler may include an infant or toddler who is at risk of
experiencing developmental delays due to biological or environmental
factors. We have made this change to clarify that States are not
required to ensure that an at-risk infant or toddler is at risk due to
meeting both types of factors.
Changes: We have replaced the phrase ``biological and
environmental'' with ``biological or environmental'' in the definition
of at-risk infant or toddler.
Child (Sec. 303.6)
Comment: One commenter expressed concern that the definition of
child in Sec. 303.6 could be misinterpreted to mean that an infant or
toddler under age three would not meet the definition. Another
commenter stated that Sec. 303.6 should not be included in the
regulations because there is no requirement that early intervention
programs serve children over the age of three.
Discussion: The term child, as used in part C of the Act, means an
individual under the age of six. This is a broad definition that
includes children with or without disabilities under the age of three
(including infants and toddlers with disabilities) and children with or
without disabilities ages three and older. While the commenter is
correct that States are not required to provide early intervention
services under part C of the Act to a child over the age of three, a
State may elect, under Sec. 303.211, to make early intervention
services available to children ages three and older who are eligible
for services under section 619 of the Act and previously received early
intervention services under Sec. 303.211 until the child enters, or is
eligible under State law to enter, kindergarten or elementary school.
Nothing in Sec. 303.6 or these regulations requires a State to serve
children with disabilities beyond age three under part C of the Act.
Additionally, requirements in these regulations, such as the
evaluation and assessment requirements in Sec. 303.321, apply to a
child who is referred to the State part C program but is determined not
to be eligible as an infant or toddler with a disability. Thus,
including a definition of child in the regulations is necessary, and
this definition is clear in its inclusion of infants and toddlers under
the age of three.
Changes: None.
Developmental Delay (Sec. 303.10)
Comment: A few commenters suggested amending the definition of
developmental delay. One commenter recommended that the definition be
revised to specifically reference infants and toddlers with mild
disabilities. Another commenter recommended that the regulations
clarify that any definition of developmental delay that the State
adopts in response to public comments should not exclude from
eligibility children who are eligible under the State's pre-existing
definition of developmental delay.
Discussion: These comments are addressed in our discussion of the
comments on Sec. 303.111.
Changes: None.
Early Intervention Service Program (Sec. 303.11) and Early
Intervention Service Provider (Sec. 303.12)
Comment: A few commenters expressed concern with the use of the
term early intervention service program throughout the proposed
regulations. One commenter suggested that the terms ``early
intervention service program'' (EIS program) and ``early intervention
service provider'' (EIS provider) were not used consistently throughout
the proposed regulations, that the use of these terms was confusing,
that the terms were sometimes used incorrectly, and that the terms did
not align with the reporting requirements outlined in Sec. Sec.
303.700 through 303.702. Another commenter recommended changing all
references to ``EIS'' in the regulations to ``EI'' because ``EIS'' is a
term used in part B of the Act and has a different meaning under the
part B regulations.
Discussion: We do not agree that the terms ``early intervention
service program'' and ``early intervention service provider'' are used
inconsistently or incorrectly throughout the regulations, or that the
terms do not align with the reporting requirements outlined in
Sec. Sec. 303.700 through 303.702. An early intervention service
program, as defined in Sec. 303.11, is the entity designated by the
lead agency for reporting purposes under sections 616 and 642 of the
Act and under Sec. Sec. 303.700 through 303.702; whereas an early
intervention service provider, as defined in Sec. 303.12, is an entity
(whether public, private, or nonprofit) or 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.
Changing the abbreviation ``EIS'' for purposes of referencing early
intervention services is not necessary. ``EIS'' is the long-standing,
commonly accepted abbreviation used in the field of early intervention
and we do not anticipate any confusion by the abbreviation's continued
use in programs administered under part C of the Act.
Changes: None.
[[Page 60145]]
Early Intervention Service Provider (Sec. 303.12)
Comment: One commenter requested that the Department revise the
regulations to clarify the distinction between ``early intervention
service providers'' as used in part C of the Act and ``related services
providers'' as used in part B of the Act.
Discussion: Parts B and C of the Act have different purposes,
eligibility criteria, and requirements and the services required by
each program are already defined in each part respectively. Part C of
the Act requires States to make available to infants and toddlers with
disabilities early intervention services to meet their developmental
needs. The terms early intervention services and EIS provider are
defined in the part C regulations, respectively, in Sec. 303.13 and
Sec. 303.12.
Part B of the Act requires States to make available to children
with disabilities a free appropriate public education or FAPE, which
includes special education and related services. The term related
services is defined in the part B regulations in 34 CFR 300.34 as
supportive services that are required ``to assist a child with a
disability to benefit from special education'' and includes
transportation and developmental, corrective, and other supportive
services. The term ``related services provider'' is not defined in the
part B regulations.
While many examples of early intervention services under part C of
the Act, including occupational therapy and speech-language pathology
services, are the same as the examples of related services under part B
of the Act, there are potential differences between related services
and early intervention services, based on differing ages of the
populations served and purposes of the programs. Therefore, it is the
Department's position that the regulations for part B and part C of the
Act, and specifically the definitions of related services, early
intervention services, and early intervention service provider,
distinguish sufficiently between the roles and functions of a related
services provider under part B of the Act and an early intervention
service provider under part C of the Act.
Changes: None.
Early Intervention Services, General (Sec. 303.13(a))
Comment: One commenter recommended changing the defined term early
intervention services to ``early intervention'' so that readers would
not confuse early intervention services under part C of the Act with
the early intervening services described in 34 CFR 300.226 of the part
B regulations.
Discussion: The term early intervention services, defined in Sec.
303.13(a), mirrors the term ``early intervention services'' referenced
throughout part C of the Act. In order to remain consistent with the
statutory language, we have not changed the term early intervention
services within this part.
Changes: None.
Comment: One commenter recommended that we modify the definition of
early intervention services to reflect the provisions in 34 CFR
300.324(a)(2) of the part B regulations, which require a child's
individualized education program (IEP) Team consider special factors
when developing a child's IEP.
Discussion: We address this comment in our discussion of the
comments on Sec. 303.342.
Changes: None.
Comment: Two commenters recommended that, when describing the
purpose of early intervention services in general, we retain the
language that these services must be designed to serve ``the needs of
the family related to enhancing the child's development'' that is in
current Sec. 303.12(a)(1). The commenter stated that meeting family
needs is a key component of an early intervention system and should be
addressed routinely in IFSP development, rather than only upon family
request.
Discussion: Proposed Sec. 303.13(a)(4) provided that early
intervention services are developmental services that 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.'' We agree
with the commenters that our inclusion of the language ``as requested
by the family'' could be interpreted to mean that addressing the needs
of a family of an infant or toddler with a disability is not an
essential component of early intervention services under part C of the
Act. This was not our intention in proposing this language. Therefore,
for clarity we have removed this phrase from Sec. 303.13(a)(4).
Changes: We have removed the phrase ``as requested by the family''
from Sec. 303.13(a)(4).
Comment: A few commenters recommended adding the word ``language''
in Sec. 303.13(a)(4)(iii) regarding communication development because
communication and language have separate meanings and the regulations
should make that distinction.
Discussion: The list of developmental areas in Sec. 303.13(a)(4)
reflects the requirements in section 632(4)(C) of the Act. The
Department's position is that communication is a broader developmental
area than language but that it includes language, and thus no further
change is necessary.
Changes: None.
Comment: One commenter recommended clarifying in Sec.
303.13(a)(4)(iv), which identifies social or emotional development as
an area in which early intervention services may be provided, the
differences between the terms social development and emotional
development because they are separate developmental processes. Another
commenter recommended adding ``social skills'' to the list of
developmental areas in Sec. 303.13(a)(4).
Discussion: Social and emotional development are two distinct
developmental areas. Therefore, section 632(4)(C)(iv) of the Act and
Sec. 303.13(a)(4)(iv) use the term ``or'' to make clear that early
intervention services may address a child's needs in either
developmental area. Consequently, we do not agree that further
clarification of these areas is necessary. Concerning the request to
add social skills to Sec. 303.13(a)(4), the term social or emotional
development includes the acquisition of developmental skills, such as
social skills. Thus, adding ``social skills'' to the developmental
areas identified in Sec. 303.13(a)(4) is not necessary.
Changes: None.
Comment: None.
Discussion: We realize that the term ``early intervention'' should
have been included before the word ``services'' in Sec. 303.13(a)(5),
which provides that developmental services must meet the standards of
the State in which the services are provided, including the
requirements of part C of the Act. We have added the phrase ``early
intervention'' before the word ``services.''
Changes: We have revised Sec. 303.13(a)(5) to include the phrase
``early intervention'' before the word ``services.'' Where appropriate,
we have made similar changes throughout the regulations.
Comment: One commenter requested that the Department amend Sec.
303.13(a)(8) to require that specific services and methods be provided
in natural environments to the maximum extent appropriate.
Additionally, the commenter suggested that we add the phrase ``and
based on the child's developmental needs and chronological
[[Page 60146]]
age'' to Sec. 303.13(a)(8) after the word ``appropriate.''
Discussion: Section 303.13(a)(8) references the definition of
natural environment in Sec. 303.26, which provides that natural
environments are settings that are natural or typical for a same-aged
infant or toddler without a disability and may include the home,
community, or other settings that are typical for an infant or toddler
without a disability. Additional natural environment requirements are
in Sec. Sec. 303.126 and 303.344(d)(1)(ii) and we have added, in Sec.
303.13(a)(8), a cross-reference to both of these regulations. Section
303.126 requires that each State's system include policies and
procedures to ensure that early intervention services are provided in
natural environments to the maximum extent appropriate. Section
303.344(d)(1)(ii), regarding IFSP content, requires that the IFSP Team
include on the child's IFSP a statement that each early intervention
service is provided in the natural environment for that child or
service to the maximum extent appropriate or a justification, based on
the child's outcomes, when an early intervention service is not
provided in the natural environment for that child. In light of these
other regulatory provisions, amending the language regarding natural
environments in Sec. 303.13(a)(8) to reference specific early
intervention services or methods of delivering early intervention
services is not necessary.
With regard to the commenter's suggestion that we add the phrase
``and based on the child's developmental needs'' to Sec. 303.13(a)(8)
after the word ``appropriate,'' Sec. 303.13(a)(4) already provides
that early intervention services must be designed to meet the
developmental needs of an infant or toddler with a disability.
Therefore, adding ``and based on the child's developmental needs''
would be repetitive and thus not necessary. Adding the phrase ``and
based on the child's chronological age'' to Sec. 303.13(a)(8) also is
not necessary because the definition of natural environments in Sec.
303.26 includes environments that are ``natural or typical for a same-
aged infant or toddler without a disability.'' This definition takes
into account the comparability to same-aged peers as well as the
chronological age of the child in the context of natural environments.
The Secretary believes that the natural environments provisions in
these regulations address sufficiently and appropriately the issues
raised by the commenter.
Changes: We have added in Sec. 303.13(a)(8) a cross-reference to
Sec. 303.344(d).
Comment: One commenter requested that we clarify in the definition
of early intervention services that EIS providers who work with infants
and toddlers with disabilities and their families should focus their
services on ensuring that family members and children have the tools
needed to continue developing the skills identified in the IFSP
whenever a learning opportunity presents itself even when a teacher or
therapist is not present.
Discussion: Section 303.344(d) requires the IFSP to include the
early intervention services that are necessary to meet the unique needs
of the child and family to achieve the results or outcomes identified
in the IFSP. If the IFSP Team determines that a child or family needs
services to help the child learn when a teacher or therapist is not
present, then that outcome, and services to meet that outcome, must be
included in the IFSP. This individualized approach, in which
appropriate outcomes and services are determined by the IFSP Team in
light of each child's unique needs, is appropriate and is addressed
sufficiently under this part. Therefore, clarifying the definition of
early intervention services, as requested by the commenter, is not
necessary.
Concerning the comment about providing family members with the
necessary tools to help an infant or toddler with a disability learn
even when a teacher or therapist is not present, we agree that EIS
providers should work with the parents of an infant or toddler with a
disability so that the parents can continue to assist the child
whenever a learning opportunity occurs. However, in addition to the
reasons stated, adding language to Sec. 303.13 as requested is not
necessary because the definition of EIS provider in Sec. 303.12(b)(3)
specifies that such providers are responsible for consulting with and
training parents and others concerning the provision of early
intervention services described in the IFSP of the infant or toddler
with a disability. Additionally, this consultation and training will
provide family members with the tools to facilitate a child's
development even when a teacher or therapist is not present.
Changes: None.
Types of Early Intervention Services (Sec. 303.13(b))
Comment: One commenter supported our proposal to remove nutrition
services and nursing services from the types of early intervention
services identified in Sec. 303.13(b) (current Sec. 303.12(d)(6)
through (d)(7)), stating that these services are medical in nature and
not consistent with the definition of early intervention as a
developmental program.
However, many commenters opposed removing nutrition services from
the types of early intervention services identified and requested that
nutrition services be specifically included as one of the types of
early intervention services identified in the final regulations.
Numerous commenters also opposed the removal of nursing services
from the definition of early intervention services and requested that
these services be specifically included in that definition in the final
regulations. Other commenters stated that although they recognized that
the Act did not include a specific reference to nursing services, these
services could nonetheless be provided, where appropriate, pursuant to
Sec. 303.13(d), which recognizes that services other than those listed
in the definition may constitute early intervention services under
certain circumstances.
Additionally, many commenters requested that music therapy be
included in the definition of early intervention services.
Other commenters requested that respite care be specifically
included in the definition of early intervention services. One
commenter requested that we include parent-to-parent support as a type
of early intervention service because of its value and importance.
Discussion: The specific early intervention services that are
listed in Sec. 303.13(b) are those identified in section 632(4)(E) of
the Act. While nursing services and nutrition services are not
specifically mentioned in the Act, they historically have been included
in the definition of early intervention services. For clarity, we have
included the previous definitions of nursing services and nutritional
services from current Sec. 303.12(d)(6) and (7) in new Sec.
303.13(b)(6) and (b)(7). However, as noted in the preamble to the NPRM
and in the definition of early intervention services in the
regulations, this list is not exhaustive. Specifically, Sec. 303.13(d)
states that ``(t)he 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.'' Further, Sec. 303.13(d) states that
``[n]othing in this section prohibits the identification in the IFSP of
another type of service as an
[[Page 60147]]
early intervention service provided that the service meets the criteria
identified in paragraph (a) of this section.''
Section 303.13(d) clearly conveys that the early intervention
services identified in Sec. 303.13(b) are not an exhaustive list and
may include other developmental, corrective, or supportive services
that meet the needs of a child as determined by the IFSP Team, provided
that the services meet the criteria identified in Sec. 303.13(a) and
the applicable State's definition of early intervention services. We
added the previous definitions of nursing services and nutritional
services to these final regulations because these definitions are
defined in the current regulations and relied upon by the field.
However, adding new definitions of additional services identified by
the commenters, such as music therapy and respite care, is not
necessary.
Changes: We have added new Sec. 303.13(b)(6) to define nursing
services to include the assessment of health status for the purpose of
providing nursing care, including the identification of patterns of
human response to actual or potential health problems; the provision of
nursing care to prevent health problems, restore or improve
functioning, and promote optimal health and development; and the
administration of medications, treatments, and regimens prescribed by a
licensed physician.
We have also added new Sec. 303.13(b)(7) to define nutrition
services to include: (i) Conducting individual assessments in
nutritional history and dietary intake; anthropometric, biochemical,
and clinical variables; feeding skills and feeding problems; and food
habits and food preferences; (ii) developing and monitoring appropriate
plans to address the nutritional needs of children eligible under this
part, based on the findings in paragraph (b)(7)(i) of this section; and
(iii) making referrals to appropriate community resources to carry out
nutrition goals. Subsequent definitions have been renumbered
accordingly.
Types of Early Intervention Services--Assistive Technology Device and
Service (Sec. 303.13(b)(1))
Comment: Two commenters recommended that we modify the definition
of assistive technology device to include the language from the
preamble of the NPRM that, under certain circumstances, part C funds
may be used to pay for a hearing aid.
Another commenter requested that the Department explicitly state in
the regulations or in a memorandum or policy letter issued to part C
lead agencies that hearing aids and appropriate related audiological
services may be considered, under certain circumstances, an appropriate
early intervention service and an assistive technology device.
Discussion: The definition of assistive technology device does not
identify specific devices; including an exhaustive list of assistive
technology devices in the definition would not be practical. Whether a
hearing aid or an appropriate related audiological service is
considered an assistive technology device or an early intervention
service, respectively, for an infant or toddler with a disability
depends on whether the device or service is used to increase, maintain,
or improve the functional capabilities of the child and whether the
IFSP Team determines that the infant or toddler needs the device or
service in order to meet his or her specific developmental outcomes.
Therefore, we have not revised this definition.
Changes: None.
Comment: Several commenters requested further clarification of the
definition of assistive technology device and service in Sec.
303.13(b)(1). These commenters stated that the definition should be
revised to specifically exclude prosthetic limbs because these are
personal devices for daily use.
Discussion: The definition of assistive technology device and
service in Sec. 303.13(b)(1) aligns with the definitions of those
terms in section 602(1) and (2) of the Act and 34 CFR 300.5 and 300.6
of the part B regulations. These definitions provide sufficient clarity
about what types of devices or technologies are included in the
definition and, therefore, indicating that a specific device or
technology is excluded is unnecessary. Additionally, we note that,
while part C lead agencies are not responsible for providing personal
devices meant for daily or personal use, such as eyeglasses, hearing
aids, or prosthetic limbs, to an infant or toddler with a disability,
these devices may be an early intervention service if the device is not
surgically implanted (Sec. 303.13(b)(1)(i) specifically excludes
medical devices that are surgically implanted), and the IFSP Team
determines that the infant or toddler with a disability requires such a
personal device to meet the unique developmental needs of that infant
or toddler.
Changes: None.
Comment: One commenter recommended that we modify the definition of
assistive technology device and service to be consistent with the
Assistive Technology Act (Pub. L. 105-394).
Discussion: The definitions of assistive technology device and
service in Sec. 303.13(b)(1) align with section 602(1) and (2) of the
Act. The definitions in section 602(1)(A) and (2) of the Act are
substantially similar to the definitions of assistive technology device
and assistive technology service in section 3(3) and (4) of the
Assistive Technology Act of 1998 (Pub. L. 105-394) (AT Act), but the
language in section 602 of the Act is more specific to the needs of
children with disabilities. Furthermore, unlike the AT Act, section
602(1)(B) of the Act expressly excludes from the definition of
assistive technology device those medical devices that are surgically
implanted or the replacement of such devices. Thus, while the
definitions are similar, it is not appropriate to include in these
regulations the specific language from the AT Act.
Changes: None.
Comment: A few commenters supported our clarification in the
preamble to the NPRM that the optimization (e.g., mapping) of
surgically implanted medical devices is not the responsibility of the
lead agency or the EIS program.
Many commenters, however, opposed our proposal to exclude
optimization (e.g., mapping) of surgically implanted medical devices,
including cochlear implants, from the definition of assistive
technology device. Commenters stated that excluding optimization (e.g.,
mapping) of surgically implanted medical devices, including cochlear
implants, from the types of early intervention services that could be
provided under the Act contradicts the intent of Congress. Many of
these commenters also stated that excluding optimization (e.g.,
mapping) services from the definition of assistive technology device
would preclude funding of these services under this part and thus some
infants and toddlers with cochlear implants would not receive mapping
services, ultimately jeopardizing their ability to hear and learn.
Another commenter suggested that setting and evaluating a surgically
implanted medical device, particularly a cochlear implant, is the same
as setting a listening device, which is a covered service.
Discussion: The term ``mapping'' refers to the optimization of a
cochlear implant, and more specifically, to adjusting the electrical
stimulation levels provided by the cochlear implant that are necessary
for long-term post-surgical follow-up of a cochlear implant. Although
the cochlear implant must be mapped properly for the child to hear well
while receiving early intervention
[[Page 60148]]
services, the mapping does not have to be done while the child is
receiving early intervention services in order for the mapping of the
device to be effective.
We maintain that excluding optimization (e.g., mapping) of a
cochlear implant from the definition of early intervention services is
consistent with the Act. Section 632 of the Act defines early
intervention services and specifies categories of these services. The
categories of early intervention services that relate to optimization
(e.g., mapping) are assistive technology devices and assistive
technology services.
Section 602(1)(B) of the Act excludes from the definition of an
assistive technology device ``a medical device that is surgically
implanted, or the replacement of such device.'' Section 602(2) of the
Act states that assistive technology service ``means any service that
directly assists a child with a disability in the selection,
acquisition, or use of an assistive technology device.'' A cochlear
implant, as a surgically implanted medical device, is excluded from
being an assistive technology device under section 602(1)(B) and,
therefore, optimization (e.g., mapping) of a cochlear implant cannot
directly assist an infant or toddler with a disability with regard to
an assistive technology device that is covered under the Act. Thus,
optimization (e.g., mapping) is not an assistive technology service and
excluding optimization from the definition of early intervention
service is consistent with the Act.
We also note that the exclusion of mapping does not prevent the
appropriate early intervention service provider from checking to ensure
the device is working.
We do not agree that optimization of a cochlear implant is the same
as setting a listening device. Unlike a cochlear implant, a listening
device is not a surgically implanted device. The Act excludes
surgically implanted devices, such as cochlear implants, from the
definition of assistive technology device but does not exclude
listening devices. Therefore, we have not revised Sec. 303.13(b)(1) as
requested by the commenters.
Changes: None.
Comment: One commenter recommended that the definition of assistive
technology device include the phrase ``all related and necessary
components of the system'' to make clear that the individual components
needed to develop a customized device (e.g., ear mold for an FM system
or a light pointer for an augmentative and alternative communication
device) would be considered an assistive technology device and,
therefore, a covered early intervention service under part C of the
Act. The commenter also recommended adding the phrase ``specially fit''
to the definition of assistive technology device.
Another commenter requested that low-tech assistive technology
devices, for example, items that can be purchased at a department
store, be expressly included in the definition.
Discussion: The definition of assistive technology device
adequately addresses the commenters' concerns and is not amended.
Section 303.13(b)(1)(i) provides that an assistive technology device
includes equipment or product systems that may need to be modified or
customized to meet the specific needs of a particular infant or toddler
with a disability. A customized assistive technology device would
include devices that are ``specially fit'' as well as all components
needed to modify or customize that device for an infant or toddler with
a disability.
The definition of assistive technology device in Sec.
303.13(b)(1)(i) states that an assistive technology device means any
``item, piece of equipment, or product system, whether acquired
commercially off the shelf, modified, or customized.'' The language
``acquired commercially off the shelf'' in the definition adequately
addresses the commenter's request that low-tech assistive technology
devices be included in the definition of assistive technology device.
Changes: None.
Comment: One commenter did not agree with the language in Sec.
303.13(b)(1)(ii)(E), which provides that an assistive technology
service includes training or technical assistance for an infant or
toddler with a disability or, if appropriate, that child's family. The
commenter specifically requested that the phrase ``if appropriate'' be
removed because, according to the commenter, it is always appropriate
to provide training and technical assistance to the family of an infant
or toddler with a disability who receives assistive technology
services.
Discussion: The language referenced by the commenter in Sec.
303.13(b)(1)(ii)(E) is substantively unchanged from language in current
Sec. 303.12(d)(1)(v). We do not agree that providing training to a
family of an infant or toddler with a disability who is receiving an
assistive technology service will always be appropriate. For example,
if training already has been provided to a family about an assistive
technology device and the family is familiar with its use, the IFSP
Team may determine that it is not necessary to train family members
again. As part of the family-directed assessment under Sec. 303.321,
the IFSP Team (which includes the parent) determines whether training
is necessary. The family assessment identifies the resources,
priorities, and concerns and the supports and services necessary to
enhance a family's capacity to meet the developmental needs of the
infant or toddler with a disability, including whether training of
family members regarding assistive technology services is appropriate
or necessary.
Changes: None.
Types of Early Intervention Services--Family Training, Counseling, and
Home Visits (Sec. 303.13(b)(3))
Comment: A few commenters requested that we clarify the definition
of family training, counseling, and home visits in Sec. 303.13(b)(3).
One commenter recommended deleting the reference to ``home visits'' in
the title of this paragraph because the commenter considered home
visits to be a method of providing a service rather than a service in
and of itself. The commenter acknowledged that the Department may not
be able to make this change, however, because the term home visits is
used in the Act. One commenter expressed concern that this definition
could be misinterpreted to mean that family training must occur in the
home and must include counseling.
Discussion: Section 632(4)(E)(i) of the Act expressly states that
early intervention services include family training, counseling, and
home visits. Thus, removing the reference to home visits from Sec.
303.13(b)(3) would be inconsistent with the Act.
The language in Sec. 303.13(b)(3) does not mean that family
training must occur in the home or include counseling. Section
303.13(b)(3) merely defines three separate early intervention services
-- family training, counseling, and home visits--that may be provided
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.
Changes: None.
Comment: One commenter questioned how the family training services
referenced in Sec. 303.13(b)(3) differ from the parent training
referenced in the definition of psychological services in Sec.
303.13(b)(10)(iv).
Discussion: The term family training, as used in Sec.
303.13(b)(3), is an example of an early intervention service identified
in section 632(4)(E) of the Act and parent training is referenced in
Sec. 303.13(b)(10)(iv) as an example of one
[[Page 60149]]
component of a program of psychological services for an infant or
toddler with a disability. While there may be some overlap in these
services, the purposes and providers of the trainings may differ.
``Family training'' as used in Sec. 303.13(b)(3) is broader than
``parent training'' in Sec. 303.13(b)(10)(iv). For example, family
training in Sec. 303.13(b)(3) may include training in any area related
to the special needs of the infant or toddler with a disability (such
as the use of specialized equipment or feeding techniques); whereas,
parent training as used in Sec. 303.13(b)(10)(iv) only encompasses
training with respect to the child's psychological condition and the
psychological services the child is receiving.
Changes: None.
Comment: One commenter recommended adding ``support of the parent-
child relationship'' as an area that would be covered by the definition
of family training, counseling, and home visits in Sec. 303.13(b)(3).
Discussion: Supporting the parent-child relationship may be one of
any number of early intervention services provided to assist a family
of an infant or toddler with a disability in understanding the special
needs of the child and enhancing that child's development. Including
specific types of services in Sec. 303.13(b)(3) is not necessary
because a wide range of services could fall under the definition of
family training, counseling, and home visits. Indeed, including such a
list could be interpreted to limit the types of services that would be
considered family training, counseling, and home visits. We want to
ensure that the regulations provide the flexibility for each IFSP Team
to determine appropriate early intervention services based on the
unique needs of an infant or toddler with a disability and his or her
family. Leaving this definition more general will provide IFSP Teams
with that flexibility.
Changes: None.
Comment: One commenter recommended adding references to ``family
training and home visits'' in the definitions of all other services
that are critical components of early intervention service delivery.
Discussion: Adding references to ``family training and home
visits'' throughout the regulations is not necessary because Sec.
303.13(b)(3) makes clear that family training, counseling, and home
visits are an early intervention service that may be provided under
part C of the Act. However, the determination of whether these
particular services are provided to a family is made by the IFSP Team
in accordance with the provisions in Sec. Sec. 303.340 through
303.346. Accordingly, adding references to family training and home
visits or other specific early intervention services in other sections
of the regulations would not be appropriate.
Changes: None.
Comment: One commenter recommended adding language to Sec.
303.13(b)(3) to provide that any training must be provided to all
family members.
Discussion: The use of the word ``family'' in this definition is
broad enough to encompass all family members if the IFSP Team
determines that it is appropriate to provide training to all family
members. Further, the decision about whether a family member receives
training must be made by the IFSP Team in accordance with section
636(d)(4) of the Act and Sec. 303.344(d)(1) of these regulations. We
cannot mandate in these regulations that family training or any other
specific early intervention service be provided to an infant or toddler
with a disability or that child's family.
Changes: None.
Types of Early Intervention Services--Occupational Therapy (New Sec.
303.13(b)(8)) (Proposed Sec. 303.13(b)(6))
Comment: Several commenters supported our proposed definition of
occupational therapy in new Sec. 303.13(b)(8) (proposed Sec.
303.13(b)(6)), but suggested that the Department modify the definition
to require that such services be provided by qualified occupational
therapists as required in 34 CFR 300.34(c)(6) of the part B
regulations.
One commenter requested that we clarify the definition to state
that an occupational therapy assistant working under the direct
supervision of an occupational therapist could provide occupational
therapy services.
A few commenters recommended that this definition identify the
specific functional domains that occupational therapists facilitate and
promote such as physical, cognitive, communication, social, emotional,
and adaptive skills.
Discussion: Specifying that occupational therapy must be provided
by a qualified occupational therapist, as required in the part B
regulations, is not necessary because occupational therapists are
identified in Sec. 303.13(c)(4) as a type of qualified personnel who
provide the early intervention services listed in Sec. 303.13(b).
Additionally, Sec. 303.119(c) provides that paraprofessionals and
assistants who are appropriately trained and supervised in accordance
with State law, regulation, or written policy, may assist in the
provision of early intervention services under part C of the Act.
Repeating this language from Sec. Sec. 303.13(c) and 303.119(c) in new
Sec. 303.13(b)(8) is not necessary.
The functional skill domains that the commenter requested be listed
in new Sec. 303.13(b)(8) are already listed in Sec. 303.13(a)(4).
Thus, under these regulations, occupational therapy services could
focus on one or more of these functional skill domains, and the
specific occupational therapy services provided to a child would be
based on the occupational therapy outcomes in the child's IFSP.
Changes: None.
Types of Early Intervention Services--Special Instruction (New Sec.
303.13(b)(14)) (Proposed Sec. 303.13(b)(11))
Comment: One commenter recommended changing the title of the
definition of special instruction in new Sec. 303.13(b)(14) (proposed
Sec. 303.13(b)(11)) to ``developmental instruction'' because ``special
instruction'' services may not be covered by public or private
insurance.
Discussion: Section 632(4)(E)(ii) of the Act references ``special
instruction'' as an example of an early intervention service. The
definition of special instruction has not changed substantively from
the definition of special instruction in current Sec. 303.12(d)(13)
and specifically includes developmental instruction. States may refer
to this early intervention service as ``developmental instruction'' or
use another term, provided that it meets the definition of special
instruction in Sec. 303.13(b). Moreover, many States currently use the
term ``special instruction'' and, thus, revisions to the title of this
definition are not necessary.
Changes: None.
Types of Early Intervention Services--Speech-Language Pathology
Services (New Sec. 303.13(b)(15)) (Proposed Sec. 303.13(b)(12))
Comment: Some commenters recommended that sign language, cued
language, auditory/oral language, and transliteration services be
defined separately from, and not included in, the definition of speech-
language pathology services because they are different types of
services. One commenter supported their inclusion in the definition. A
few commenters suggested that separate definitions would reflect that
speech-language pathologists and interpreters receive different
preparatory training, are
[[Page 60150]]
licensed by different boards, and are subject to different professional
regulations.
Other commenters noted that sign language, cued language, auditory/
oral language, and transliteration services are provided by qualified
professionals, such as audiologists, teachers of children who are deaf
and hard of hearing, and interpreters, and that speech-language
pathologists may not necessarily be qualified to provide these
services. Finally, one commenter recommended that, at a minimum, we
change the title of this definition to reference sign language and cued
language services to be consistent with the list of types of early
intervention services specified in section 632(4)(E)(iii) of the Act.
Discussion: We agree that establishing a separate definition of
sign language and cued language services, which includes auditory/oral
language and transliteration services, is consistent with section
632(4)(E)(iii) of the Act. Therefore, we have included in new Sec.
303.13(b)(12) a definition of the term that incorporates the language
from proposed Sec. 303.13(b)(12)(iv).
Changes: We have moved proposed Sec. 303.13(b)(12)(iv) to new
Sec. 303.13(b)(12). Due to the addition of this separate definition of
sign language and cued language services in Sec. 303.13(b)(12), the
definitions in Sec. 303.13(b) (types of early intervention services),
beginning with the definition of social work services, have been
renumbered.
Comment: A significant number of commenters requested that the
Department clarify that sign language and cued language services may be
provided not only to children who are deaf or hard of hearing but also
to an eligible child who is not deaf or hard of hearing whose IFSP Team
has identified such services as appropriate to meet that child's
developmental needs.
Discussion: We agree with the commenters and have not included the
reference to infants and toddlers with a disability who are deaf or
hard of hearing from proposed Sec. 303.13(b)(12)(iv) in the new
definition of sign language and cued language services in new Sec.
303.13(b)(12).
Changes: The phrase ``as used with respect to infants and toddlers
with disabilities who are hearing impaired'' has not been included in
the definition of sign language and cued language services in new Sec.
303.13(b)(12).
Comment: One commenter suggested that the description of sign
language and cued language services, which is now in new Sec.
303.13(b)(12) (proposed Sec. 303.13(b)(12)(iv)), was confusing because
of the use of the word ``and'' between ``cued language'' and
``auditory/oral language services.'' The commenter recommended that
this phrase be changed to ``cued language or auditory/oral language
services'' because the word ``and'' implied that either all services in
the list must be provided or none of the services can be provided.
Discussion: In reviewing new Sec. 303.13(b)(12) (proposed Sec.
303.13(b)(12)(iv)), we determined it was necessary to clarify and
distinguish between services that focus on teaching and interpretation.
Thus, we have clarified that sign language and cued language services
include teaching sign language, cued language, and auditory/oral
language, providing oral transliteration services (such as
amplification), and providing sign and cued language interpretation.
Regarding the commenter's concern about the use of the term
``and'', this use does not mean that all of the services listed must be
identified in the IFSP or provided. The definition of sign language and
cued language services in new Sec. 303.12(b)(12) provides that sign
language and cued language services ``include'' certain services and
Sec. 303.18, in turn, defines the term include to mean ``that the
items named are not all of the possible items that are covered, whether
like or unlike the ones named.'' Accordingly, revising the reference to
``and'' in the definition of sign language and cued language services
is not necessary.
Changes: We have revised new Sec. 303.13(b)(12) to define sign
language and cued language services to include ``teaching sign
language, cued language, and auditory/oral language, providing oral
transliteration services (such as amplification), and providing sign
and cued language interpretation.''
Comment: One commenter requested that the Department add a
parenthetical ``such as amplification'' to the phrase ``oral
transliteration'' in new Sec. 303.13(b)(12) (proposed Sec.
303.13(b)(12)(iv)) and distinguish between ``translation'' and
``transliteration.'' Another commenter recommended moving the reference
to cued language interpreting and transliteration services from the
definition of early intervention services in new Sec. 303.13(b)(12)
(proposed Sec. 303.13(b)(12)(iv)) to the definition of native language
in Sec. 303.25(b) because, for children who are deaf, native language
is defined as the mode of communication normally used by the individual
(including sign language).
Discussion: Transliteration, in new Sec. 303.13(b)(12) (proposed
Sec. 303.13(b)(12)(iv)), refers to the rendering of one language or
mode of communication into another by sound such as voicing over
difficult-to-understand speech in order to clarify the sounds, not the
meaning. We agree that including amplification as an example of
transliteration is appropriate and have added amplification as an
example in the definition. However, because the regulations do not use
the term ``translation'' (i.e., rendering one language into another by
its meaning), there is no need to define that term. Additionally, we
decline to adopt the commenter's suggestion that we move the reference
to cued language interpreting and transliteration services to the
definition of native language in Sec. 303.25(b). These services are
types of early intervention services that the IFSP Team may identify as
needed by the eligible child and family and therefore including them
under the definition of early intervention services in new Sec.
303.13(b)(12) (proposed Sec. 303.13(b)(12)(iv)) is appropriate.
Further, including the reference recommended by the commenter in Sec.
303.25(b) is not necessary because we believe the examples in paragraph
(b) of that definition, regarding mode of communication that is
normally used by an individual who is deaf or hard of hearing, blind or
visually impaired, or for an individual with no written language, are
appropriate and further examples are not needed to understand the
meaning of the term native language.
Changes: We have added the parenthetical ``(such as
amplification)'' as an example of transliteration services in new Sec.
303.13(b)(12).
Comment: Several commenters recommended adding such services as
auditory habilitation and rehabilitation, dysphagia, auditory-verbal
therapy, oropharyngeal, or feeding and swallowing services to the
definition of speech-language pathology services in new Sec.
303.13(b)(15) (proposed Sec. 303.13(b)(12)).
Discussion: The services identified in the definition of speech-
language pathology services in new Sec. 303.13(b)(15) (proposed Sec.
303.13(b)(12)) are not intended to be exhaustive. Section 303.13(b)(15)
(proposed Sec. 303.13(b)(12)) does not preclude an IFSP Team from
determining that an infant or toddler with a disability is in need of
any of the services suggested by the commenters if the services are
necessary to meet the outcomes identified for that child in the child's
IFSP.
Changes: None.
[[Page 60151]]
Types of Early Intervention Services--Transportation and Related Costs
(New Sec. 303.13(b)(16)) (Proposed Sec. 303.13(b)(13))
Comment: Many commenters opposed the proposal to remove expenses
for travel by taxi from the costs included in the definition of
transportation and related costs. The commenters stated that omitting
this type of transportation cost could be problematic for families who
do not have access to private transportation or reliable public
transportation or who live in large urban areas and rely on taxis to
transport their child to an EIS provider.
Discussion: We did not include expenses for travel by taxi in the
examples of transportation costs included in the definition of
transportation and related costs because our understanding is that
transportation via taxi for the purpose of traveling to an EIS provider
is less common than the other examples we included in the proposed
regulations such as transportation via common carriers. We did not
intend to exclude such expenses specifically from the definition.
Indeed, section 632(4)(E)(xiv) of the Act does not list any specific
types of transportation and related costs. Accordingly, we have revised
new Sec. 303.13(b)(16) (proposed Sec. 303.13(b)(13)) to remove the
references to specific types of transportation costs.
Changes: We have revised new Sec. 303.13(b)(16) (proposed Sec.
303.13(b)(13)) to align more closely with the language in section
632(4)(E)(xiv) of the Act. Specifically, we have removed the
parenthetical examples of travel and other costs that were in the
proposed regulation.
Types of Early Intervention Services--Vision Services (New Sec.
303.13(b)(17)) (Proposed Sec. 303.13(b)(14))
Comment: Some commenters requested that the Department clarify the
definition of vision services in new Sec. 303.13(b)(17)(iii) (proposed
Sec. 303.13(b)(14)(iii)). A few commenters noted that the definition
focused on older children and did not include the full scope of
instruction available to young children and their families. One
commenter expressed concern that the definition of vision services in
new Sec. 303.13(b)(17) (proposed Sec. 303.13(b)(14)) described an
outdated medical model that promotes skills training, rather than
developmental adjustments that accommodate vision loss. A few
commenters recommended that we add to this definition training and
services in the following areas: tactile awareness, sensory utilization
and preferences, emergent literacy, precane skills, environmental
orientation, environmental adaptations, and modifications and
conceptual understanding where visual impairment (including blindness)
precludes typical access to early intervention.
One commenter suggested that the services listed could be included
instead in the definition of special instruction in new Sec.
303.13(b)(14) (proposed Sec. 303.13(b)(11)) and requested guidance
about who is qualified to provide these services.
Discussion: We have clarified in the definition of vision services
in new Sec. 303.13(b)(17) that evaluations and assessments of visual
functioning include the diagnosis and appraisal of specific visual
disorders, delays, and abilities that affect early childhood
development. We also agree that reference to independent living applies
to older children and have deleted the reference, which was in proposed
Sec. 303.13(b)(14)(iii), to ``independent living skills training.''
Regarding commenters' concerns that vision services are limited to
``training'' services and not skills, we note that the purpose of
providing training to a child in specific vision areas is to improve
the child's skills in those areas. The definition of vision services
provides discretion and flexibility for each IFSP Team to identify
those vision services necessary to meet the unique needs of an infant
or toddler with a disability and the child's family. Therefore, we have
not made the changes recommended by the commenter.
Maintaining separate definitions for special instruction and vision
services aligns with sections 632(4)(E)(ii) and (4)(E)(xii) of the Act,
regarding the types of services that are included as early intervention
services. Vision services should not be included in the definition of
special instruction because some of the examples of vision services
would not be appropriate as examples of special instruction. For
example, referral for medical or other professional services necessary
for the habilitation or rehabilitation of visual functioning disorders,
or both, would not fall under the definition of special instruction.
The types of qualified personnel who may provide vision services are
listed in Sec. 303.13(c). This list includes optometrists and
ophthalmologists and is not exhaustive. Thus, providing additional
guidance about who is qualified to provide vision services is not
necessary.
Changes: We have added the words ``that affect early childhood
development'' after the words ``specific visual disorders, delays, and
abilities.'' We also have removed the phrase ``independent living
skills'' from proposed Sec. 303.13(b)(14)(iii).
Qualified Personnel (Sec. 303.13(c))
Comment: Several commenters supported our proposal to include in
the definition of qualified personnel in Sec. 303.13(c) types of
personnel that are not included in the current part C regulations.
Commenters specifically supported the inclusion of ``registered
dieticians,'' ``optometrists,'' ``teachers of children with hearing
impairments,'' and ``teachers of children with visual impairments'' in
the list of qualified personnel.
A few commenters objected to the inclusion of ``registered
dieticians'' and ``vision specialists, including ophthalmologists and
optometrists.'' The commenters suggested that the inclusion of medical
professionals, i.e., ophthalmologists, might cause confusion about
whether diagnostic services provided by ophthalmologists would qualify
as early intervention services. Other commenters requested that the
Department provide separate guidance about the use of and distinction
between ``ophthalmologists and optometrists.'' One commenter requested
clarification about whether a lead agency was responsible only for
referring families to these specialists or if they also would be
responsible for paying for diagnostic services.
One commenter requested that nutritionists be added to the list of
qualified personnel because a nutritionist might be available when a
registered dietician is not.
Discussion: We appreciate the commenters' support for the proposed
definition of qualified personnel in Sec. 303.13(c). We included
registered dieticians and vision specialists, including
ophthalmologists and optometrists, in the proposed regulations to
conform with the language in section 632(4)(F)(viii) and (4)(F)(x) of
the Act, which lists these specialists as qualified personnel who
provide early intervention services. Any of the personnel listed under
this section could perform diagnostic services as part of the ongoing
assessment of an infant or toddler or provide direct services to an
infant or toddler with a disability and these services would qualify as
early intervention services.
Concerning the comment about a lead agency's payment and referral
responsibility, the lead agency would be responsible for referring
families to ophthalmologists or optometrists and also would be
responsible for paying for
[[Page 60152]]
diagnostic services, as required under Sec. 303.13(b)(5).
We did not include the term nutritionist in the examples of
qualified personnel in Sec. 303.13(c) because this term was not
included in section 632(4)(F)(viii) and (4)(F)(x) of the Act. However,
nothing precludes lead agencies from utilizing services from a
nutritionist if a nutritionist, instead of a registered dietician, can
provide the nutrition or other services identified in the child's IFSP.
Changes: None.
Comment: A few commenters recommended listing ``teachers of
children with hearing impairments'' and ``teachers of children with
visual impairments'' in separate paragraphs in the definition of
qualified personnel because these teachers are from two distinct
disciplines. Another commenter stated that classifying teachers of the
visually impaired as special educators is not necessary and suggested
that doing so would have no impact on the availability of qualified
personnel.
Discussion: We agree with the commenter that teachers of children
with hearing impairments and teachers of children with visual
impairments are two distinct professions. The list of qualified
personnel in Sec. 303.13(c) who provide early intervention services
under this part includes special educators. The term ``special
educators'' consists of many distinct professions including teachers of
children with hearing impairments and teachers of children with visual
impairments. Therefore, including teachers of children with hearing
impairments and teachers of children with visual impairments as
examples of special educators in Sec. 303.13(c)(11) is appropriate and
listing these terms separately is not necessary.
Concerning the comment that classifying teachers of the visually
impaired as special educators is not necessary, the Department
recognizes that there are some special educators that receive their
training and certification in visual impairments and hearing
impairments. Therefore, teachers of children with hearing impairments
and teachers of children with visual impairments remain as examples of
special educators in the list of qualified personnel who provide early
intervention services under this part to ensure that these teachers are
considered qualified personnel to provide early intervention services.
Changes: None.
Comment: A few commenters requested that, in identifying the types
of qualified personnel who provide early intervention services, the
reference to ``teachers of children with hearing impairments'' be
revised to refer to ``teachers of deaf and hard of hearing children.''
Another commenter stated that the appropriate reference to teachers who
instruct children who are deaf or hard of hearing is ``teachers of the
hearing impaired.'' Commenters who recommended using ``teachers of deaf
and hard of hearing children'' opposed the word ``impairment'' as
outdated, value-laden, and inconsistent with the language in the part B
regulations.
Discussion: The types of qualified personnel listed in Sec.
303.13(c)(11) include ``teachers of children with hearing impairments
(including deafness).'' This language is consistent with the part B
regulations in 34 CFR 300.8(a)(1), which defines a child with a
disability to mean a child as having a ``hearing impairment (including
deafness).'' The terms hearing impairment, deafness, hearing impaired,
and hard of hearing are all used in the field. For purposes of
consistency among the regulations under the Act, we have continued to
refer to these teachers as teachers of children with hearing
impairments (including deafness).
Changes: None.
Comment: One commenter recommended adding ``low vision specialist''
to the list of qualified personnel because this addition would clarify
that not all vision specialists are qualified to work with pediatric
populations and that low vision is a subspecialty of optometry and
ophthalmology.
Discussion: Section 632(4)(F)(x) of the Act identifies vision
specialists, including ophthalmologists and optometrists, as qualified
personnel who provide early intervention services. Usually an
optometrist or ophthalmologist would make the referral to a low vision
specialist if such a referral is warranted. The list of qualified
personnel identified in the Act and Sec. 303.13(c) is not exhaustive;
accordingly, nothing precludes the lead agency's use of a low vision
specialist, if such a referral is made, to provide appropriate early
intervention services to an infant or toddler with a disability.
Changes: None.
Other Services (Sec. 303.13(d))
Comment: One commenter supported proposed Sec. 303.13(d), which
provides that the services and personnel identified in Sec. 303.13(b)
and (c) do not comprise exhaustive lists of early intervention services
and qualified personnel and that IFSP Teams and families also may
consider other services that may be appropriate for infants and
toddlers with disabilities.
Another commenter requested that the Department revise the language
in this paragraph to indicate that any other services identified in the
IFSP of an infant or toddler with a disability be based on proven
methods or evidence-based practices.
Discussion: We do not agree that requiring services identified in
an IFSP to be based on proven methods or evidence-based practices is
appropriate. Section 636(d)(4) of the Act provides that the IFSP
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 infant or toddler with a
disability and the family. Mirroring this standard, Sec. 303.344(d)(1)
requires that each IFSP 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 for the child
and the family to achieve the measurable results or outcomes identified
in the IFSP. Using the standard recommended by the commenter could
limit the breadth of early intervention service options in a manner
inconsistent with these provisions. Thus, we have not revised the
language in Sec. 303.13(d) as requested by the commenter.
Changes: None.
Comment: One commenter requested that the Department add language
to Sec. 303.13(d) to provide that families have the option to identify
in the IFSP medical and other services that the child or family needs
or is receiving through other sources, but that are neither required
nor funded under part C of the Act.
Discussion: Section 303.344(e) provides for the IFSP Team to
identify in the IFSP medical and other services that the child or
family needs or is receiving through other sources, but that are
neither required nor funded under part C of the Act. Thus, making the
change requested by the commenter is not necessary.
Changes: None.
Free Appropriate Public Education (Sec. 303.15)
Comment: One commenter recommended clarifying that the requirement
to provide FAPE under part C of the Act only applies when a State
chooses to make services under part C available to children ages three
and older under the provisions in Sec. 303.211 and is not applicable
to the provision of part C services to children ages birth to three
years of age.
[[Page 60153]]
Discussion: The term FAPE is used in Sec. Sec. 303.211, 303.501,
and 303.521 of these regulations. Section 303.211 provides that a State
may elect to offer services under part C of the Act to a child age
three or older; however, if a State elects to offer these services and
a parent chooses part C services instead of part B services for a
child, the State is not required under this part to provide FAPE for
the child.
Section 303.501 provides that States may use part C funds to
provide FAPE to a child from the child's third birthday until the
beginning of the school year following that birthday. Section 303.521
addresses situations in which State law mandates the provision of FAPE
for children under the age of three.
To clarify the applicability of the FAPE requirements to these
regulations, we have revised Sec. 303.15 to provide that the
definition of FAPE is included for purposes of the use of this term in
Sec. Sec. 303.211, 303.501 and 303.521.
Changes: We have added references in Sec. 303.15 to Sec. Sec.
303.211, 303.501 and 303.521.
Health Services (Sec. 303.16)
Comment: The comments we received on the proposed definition of
health services in Sec. 303.16 indicated there was some confusion
concerning the conditions under which a child may receive health
services under part C of the Act. Some commenters stated that the
definition of health services was vague and could be read to mean that:
(1) Infants and toddlers with disabilities are eligible to receive
health services under part C of the Act even when those infants and
toddlers are otherwise not eligible to receive early intervention
services under part C of the Act and (2) funding of these health
services under part C of the Act was required when no other payor was
available.
Discussion: The Department's position is that Sec. 303.16 clearly
states that a lead agency is only required to fund health services that
meet the definition of health services in Sec. 303.16 during the time
that the child is eligible to receive early intervention services under
part C of the Act and regardless of the availability of other payors.
However, to avoid confusion, we have added language in Sec. 303.16
clarifying that requirement.
Changes: We have modified the definition of health services in
Sec. 303.16(a) to add the words ``otherwise eligible'' before the word
``child'' in order to clarify that a child must be eligible to receive
early intervention services under this part in order to also receive
health services as defined in Sec. 303.16.
Comment: A few commenters expressed concern that the definition of
health services in Sec. 303.16 would broaden the responsibilities of
part C lead agencies and result in an increased fiscal burden on
States. Another commenter suggested that the definition of health
services in Sec. 303.16 would make it difficult to differentiate
between developmental services and medical services.
Discussion: The only substantive difference between the definition
of health services in current Sec. 303.13 and the proposed definition
of health services in Sec. 303.16 is the addition of Sec.
303.16(c)(1)(iii), which states that the definition of health services
does not include services that are related to the implementation,
optimization (e.g., mapping), maintenance, or replacement of a medical
device that is surgically implanted, including cochlear implants. This
one substantive change limits, rather than expands, the
responsibilities of part C lead agencies.
Therefore, the Secretary believes that the definition of health
services does not broaden the responsibilities of lead agencies and
thus, we do not anticipate that this definition will lead to an
increased fiscal burden on States.
We do not agree with the commenter that the definition of health
services in Sec. 303.16 makes differentiating between developmental
services and medical services difficult. Section 303.16(c) provides
specific examples of services that are purely medical in nature and,
therefore, not included in the definition of health services. These
examples are sufficient to distinguish medical services from
developmental services.
Changes: None.
Comment: Commenters had differing views concerning the Department's
proposal to exclude from the definition of health services those
services related to the implementation, optimization (e.g., mapping),
maintenance, or replacement of a medical device that is surgically
implanted, including cochlear implants. One commenter supported
excluding services related to the optimization (e.g., mapping) of
surgically implanted devices. A few commenters opposed the exclusion of
services related to the optimization (e.g., mapping) of surgically
implanted medical devices, including cochlear implants. One commenter
suggested that excluding this service from the definition of health
services is not consistent with the intent of Congress and would
effectively deny eligible infants and toddlers a service necessary for
the child to benefit from other part C services.
Discussion: Excluding services related to the optimization (e.g.,
mapping) of a medical device that is surgically implanted, including
cochlear implants, from the definition of health services in Sec.
303.16, is consistent with section 602(1)(B) of the Act, which provides
that the term assistive technology device does not include a medical
device that is surgically implanted, or the replacement of such device.
Further, this exclusion is consistent with the definition of related
services in 34 CFR 300.34(b) of the part B regulations, which provides
that related services do not include a surgically implanted device,
including a cochlear implant or a medical device that is surgically
implanted, the optimization of that device's functioning (e.g., mapping
of a cochlear implant), maintenance of that device, or the replacement
of that device.
The term ``mapping'' refers to the optimization of a cochlear
implant and is not included in the definition of health services in
Sec. 303.16. Specifically, ``mapping'' and ``optimization'' refer to
adjusting the electrical stimulation levels provided by the cochlear
implant that is necessary for long-term post-surgical follow-up of a
cochlear implant. The maintenance and monitoring of surgically
implanted devices such as cochlear implants require the expertise of a
licensed physician or an individual with specialized expertise beyond
that typically available from early intervention service providers.
While the cochlear implant must be mapped properly in order for an
infant or toddler with a disability to hear well while receiving early
intervention services, the mapping does not have to be done as a part
of early intervention service delivery in order for it to be effective.
Particularly with young children, EIS providers are frequently the
first to notice changes in an infant's or toddler's ability to perceive
sounds. A decrease in an infant's or toddler's ability to perceive
sounds may manifest itself as decreased attention or understanding on
the part of the infant or toddler or increased frustration in
communicating. Such changes may indicate a need for remapping, and we
would expect that EIS providers would communicate with the child's
parents about their observations. To the extent that adjustments to the
devices are required, a specially trained professional would provide
the remapping, but this is not the responsibility of the lead agency or
EIS provider.
While providing mapping as an early intervention service is neither
required nor permitted by part C of the Act, Sec. 303.16(c)(1)(iii)(B)
makes clear that
[[Page 60154]]
nothing in part C of the Act or these regulations prevents an early
intervention service provider from routinely checking that the external
components of a cochlear implant of an infant or toddler with a
disability are functioning properly. Trained lay individuals can
routinely check an externally worn processor connected to the cochlear
implant to determine if the batteries are charged and the external
processor is operating. For example, EIS providers can be trained to
check the externally worn speech processor to ensure that it is turned
on, the volume and sensitivity settings are correct, and the cable is
connected.
The exclusion of mapping as a health service is not intended to
deny an infant or toddler with a disability access to any early
intervention service. Each infant's or toddler's IFSP Team, which
includes the child's parent, determines the early intervention
services, and the level of those services, required by an eligible
infant or toddler.
Finally, as discussed in our response to comments received on Sec.
303.13(b)(1), it is the Department's position that the exclusion of
services related to the optimization (e.g., mapping) of surgically
implanted medical devices, such as cochlear implants, from the
definition of health services is consistent with the Act.
Changes: None.
Comment: One commenter requested that the Department clarify the
difference between medical devices referenced in the definition of
health services in Sec. 303.16(c)(2) and the medical devices
referenced in the definition of assistive technology device in Sec.
303.13(b)(1)(i).
Discussion: Both Sec. Sec. 303.16(c)(2) and 303.13(b)(1)(i)
provide examples of devices that are medical in nature and, therefore,
not included under this part. Section 303.16(c)(2) states that devices
necessary to control or treat a medical condition are not included
under the definition of health services and provides examples of these
devices. Section 303.13(b)(1) states that medical devices that are
surgically implanted are not included in the definition of assistive
technology devices and services or the umbrella term types of early
intervention services and provides cochlear implants as an example of
these medical devices.
Changes: None.
Homeless Children (Sec. 303.17)
Comment: Commenters generally were supportive of the proposed
definition of homeless children in Sec. 303.17. One commenter
supported including the definition of homeless children in the
regulations and another appreciated the focus on a traditionally
underserved population.
One commenter expressed concern that the definition of homeless
children may be broader than a State's definition. The commenter
requested that we clarify in the regulations that a State is not
required to serve children, even if they are homeless, who do not meet
the State's eligibility definition.
One commenter recommended that we clarify the definition to provide
that homeless children also include children over the age of three if a
State chooses to implement the provisions of Sec. 303.211, under which
a State has the option to make services under part C of the Act
available to children ages three and older.
Discussion: We do not agree that the definition of homeless
children in Sec. 303.17 is broader than any valid State definition of
children served. The definition of homeless children in Sec. 303.17 is
consistent with the definition in section 602(11) of the Act and
section 725 (42 U.S.C. 11434a) of the McKinney-Vento Homeless
Assistance Act (McKinney-Vento Act), as amended, 42 U.S.C. 11431 et
seq. A State may choose to promulgate a definition of homeless children
that is broader than the definition in the McKinney-Vento Act, as
amended, but a State may not promulgate a definition that is narrower
in scope than the Federal definition.
We agree with the commenter and have clarified the definition to
include children over the age of three, specifically in cases where
States choose to implement Sec. 303.211 and make services under part C
of the Act available to children ages three and older.
Changes: We have removed the phrase ``under the age of three'' from
the definition of homeless children to make the definition consistent
with section 635(c) of the Act, which provides States with the
flexibility to serve children three years of age and older until
entrance into elementary school, and Sec. 303.211, under which a State
may make services under part C of the Act available to children ages
three and older.
Individualized Family Service Plan (Sec. 303.20)
Comment: One commenter supported the provision in the definition of
individualized family service plan that provides that the plan must be
implemented as soon as possible after obtaining parental consent for
early intervention services.
One commenter recommended adding a requirement that services begin
as soon as possible, but no later than 10 days after receiving parental
consent for early intervention services.
Discussion: We address these comments in our discussion of the
comments on Sec. 303.342.
Changes: None.
Infant or Toddler With a Disability (Sec. 303.21)
Comment: Several commenters supported our proposed definition of
infant or toddler with a disability.
Commenters specifically supported the definition in Sec.
303.21(a)(2) regarding eligibility for children with conditions that
have a high probability of resulting in a child's developmental delay.
One commenter supported the inclusion of ``chromosomal abnormalities''
in the examples of conditions in Sec. 303.21(a)(2)(ii) that have a
high probability of resulting in a child's developmental delay.
A few commenters requested clarification of the list of examples of
these conditions in Sec. 303.21(a)(2)(ii). One commenter requested
that ``severe attachment disorders'' be added as an example in Sec.
303.21(a)(2)(ii). Another commenter requested that the qualifier
``severe'' be deleted from the reference to ``sensory impairments'' in
Sec. 303.21(a)(2)(ii) because mild hearing losses can result in
developmental delays. One commenter suggested that we clarify that the
definition of infant or toddler with a disability in Sec. 303.21(a)(2)
does not require that the infant or toddler with a disability have a
severe or chronic condition and that the definition includes at-risk
infants and toddlers.
Another commenter requested that we revise Sec. 303.21 to provide
that a State's definition of infant or toddler with a disability can
include, at the State's discretion, children with disabilities who are
eligible for services under section 619 of the Act and previously were
served under part C of the Act until such children enter, or are
eligible to enter, kindergarten. Another commenter was concerned that
services will be denied to children transitioning between part C of the
Act and part B of the Act during the summer months despite the
requirements in Sec. 303.21(c) and the definition of child in Sec.
303.6.
Discussion: The examples of diagnosed conditions that have a high
probability of resulting in developmental delay listed in Sec.
303.21(a)(2)(ii) were taken from Note 1 following current Sec. 303.16,
which states:
The phrase `a diagnosed physical or mental condition that has a
high probability of
[[Page 60155]]
resulting in developmental delay,' * * * applies to a condition if
it typically results in developmental delay. Examples of these
conditions include chromosomal abnormalities; genetic or congenital
disorders; severe sensory impairments, including hearing and vision;
inborn errors of metabolism; disorders reflecting disturbance of the
development of the nervous system; congenital infections; disorders
secondary to exposure to toxic substances, including fetal alcohol
syndrome; and severe attachment disorders.
The reference to ``severe attachment disorders,'' which was
included in Note 1, was inadvertently omitted from proposed Sec.
303.21(a)(2)(ii) and we have added it to Sec. 303.21(a)(2)(ii) as an
example of a diagnosed condition that has a high probability of
resulting in developmental delay.
Concerning the commenter's request that the qualifier ``severe'' be
deleted from the phrase ``sensory impairments,'' in Sec.
303.21(a)(2)(ii), we agree with the commenter that even a mild sensory
impairment may result in developmental delay and have revised the
definition accordingly.
Concerning the commenter's request that we clarify that the
definition of infant or toddler with a disability does not require that
the infant or toddler with a disability have a severe or chronic
condition, Sec. 303.21 includes various groups of children such as an
infant or toddler who is experiencing a developmental delay, or who has
a diagnosed physical or mental condition that has a high probability of
resulting in developmental delay and in no way limits eligibility to
infants or toddlers with severe or chronic conditions. Thus, the
clarification recommended by the commenter is not necessary.
With respect to the commenter's request that the definition of
infant or toddler with a disability in Sec. 303.21 include at-risk
infants and toddlers, Sec. 303.21(b) provides that the definition of
infant or toddler with a disability may include, at a State's
discretion, an at-risk infant or toddler, as defined in Sec. 303.5. It
is the Department's position that each State must be provided
discretion to develop a definition of infant or toddler with a
disability that meets the unique needs of its population. The
definition of infant or toddler with a disability addresses
sufficiently and appropriately the issue of at-risk infants and
toddlers and, therefore, we have not revised the definition as
requested.
Concerning the request to revise the definition of infant or
toddler with a disability to include children who are eligible for
services under section 619 of the Act and were previously served under
part 303, Sec. 303.21(c) already makes clear that the definition of
infant or toddler with a disability 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
part 303 until the child enters, or is eligible under State law to
enter, kindergarten or elementary school.
Summer services should not be denied to a child transitioning from
early intervention services under part C of the Act to programs under
part B of the Act simply because that child transitions during the
summer months. Once a child is determined eligible for part B services,
an IEP, or if consistent with 34 CFR 300.323(b) of the part B
regulations, an IFSP, must be developed. If a child's IEP Team
determines that extended school year services are necessary for the
child to receive FAPE, the child must receive those services in
accordance with the IEP (or IFSP under 34 CFR 300.323(b) of the part B
regulations). Issues relating to transition of infants and toddlers
from part C to part B services are discussed in more detail in the
Analysis of Comments and Changes for subpart C in response to comments
received on Sec. 303.209.
Changes: We have revised Sec. 303.21(a)(2)(ii) to add ``severe
attachment disorders'' to the list of diagnosed conditions that have a
high probability of resulting in developmental delay. Additionally, we
have removed the word ``severe'' as a qualifier to the term ``sensory
impairments'' in Sec. 303.21(a)(2)(ii).
Lead Agency (Sec. 303.22)
Comment: One commenter requested that the Department provide its
opinion on whether a State statute that designates the State agency
that will serve as the lead agency in that State is consistent with the
Act and these regulations.
Discussion: Section 303.22, regarding the designation of the lead
agency by the State's Governor, incorporates the requirement in section
635(a)(10) of the Act that the Governor designate the lead agency that
is responsible for administering part C of the Act in the State. If a
State statute signed into law by the Governor designates the lead
agency, such designation would be consistent with this requirement.
Changes: None.
Local Educational Agency (Sec. 303.23(c))
Comment: None.
Discussion: The proposed definition of local educational agency
included a definition for BIA-funded schools, which referred to an
elementary or secondary school funded by the Bureau of Indian Affairs
(BIA). The Bureau of Indian Affairs is now called the Bureau of Indian
Education or BIE and we have updated our references in Sec. 303.23(c)
accordingly.
Changes: We have replaced, in Sec. 303.23(c), references to the
Bureau of Indian Affairs with the Bureau of Indian Education.
Multidisciplinary (Sec. 303.24)
Comment: We received a significant number of comments concerning
the definition of multidisciplinary. Multidisciplinary was defined in
proposed Sec. 303.24, with respect to evaluation and assessment of a
child, an IFSP Team, and IFSP development under subpart D of this part,
as 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. Some commenters supported this definition
because it would help States allocate personnel and resources and may
be less overwhelming for some families.
However, the vast majority of commenters opposed this proposed
definition with respect to its reference to the IFSP Team.
Specifically, these commenters stated that permitting one individual,
even if that individual is qualified in more than one discipline or
profession, to serve as the sole member of the IFSP Team (other than
the parent), does not reflect best practice. One commenter suggested
that the definition of multidisciplinary reflect the language in the
definition of IEP Team in 34 CFR 300.23 of the part B regulations,
which defines the IEP Team as a ``group'' of individuals. Additional
commenters interpreted the definition of multidisciplinary to mean that
one person could represent the entire IFSP Team and expressed concern
that the definition, as written, would remove necessary checks and
balances and may lead to potential conflicts of interest or decisions
based on biased opinions. Additionally, commenters noted that changing
this long-standing definition might create confusion for both families
and service providers. Commenters requested that the definition be
modified to ensure that multiple perspectives are included on each IFSP
Team and adequate representation is not hampered or constrained on any
given IFSP Team by an individual who is qualified in more than one
discipline or profession. A few other commenters requested that the
definition of multidisciplinary in current Sec. 303.17 be retained.
Some commenters were concerned that multidisciplinary teams are the
[[Page 60156]]
only types of teams referenced in the regulations and that the
regulations do not acknowledge that other types of teams, including but
not limited to transdisciplinary and interdisciplinary teams, are
routinely used in determining services under part C of the Act. The
commenters suggested that all of these models should be included in the
final regulatory definition to give teams the flexibility to choose the
type of team model that best meets the needs of the individual
situation.
Discussion: We agree with commenters' concerns about the definition
of multidisciplinary in relation to the IFSP Team as it is important to
ensure the involvement of the parent and two or more individuals, one
of whom must be the service coordinator (consistent with Sec.
303.343(a)(1)(iv)), from separate disciplines or professions on the
IFSP Team and have made this change. With respect to IFSP Team
meetings, we believe it is important for the parent to be able to meet
not only with the service coordinator (who may have conducted the
evaluation and assessments), but also with another individual (whether
that person is the service provider or another evaluator) to obtain
input from two or more individuals representing at least two
disciplines and have revised Sec. 303.24 accordingly. We also have
added a reference to multidisciplinary in Sec. 303.340, regarding the
general provisions that apply to IFSP development, review, and
implementation. Thus, with these changes in Sec. Sec. 303.24 and
303.340, the term multidisciplinary IFSP Team requires the involvement
of two or more individuals from separate disciplines or professions,
one of whom must be the service coordinator (consistent with Sec.
303.343(a)(1)(iv)).
With respect to evaluation of the child and assessments of the
child and family, Sec. 303.321(a) requires that all evaluations and
assessments be conducted by qualified personnel. Qualified personnel,
as defined in Sec. 303.31, means personnel who have met State approved
or recognized certification, licensing, registration, or other
comparable requirements that apply to the areas in which the
individuals are conducting evaluations or assessments or providing
early intervention services. Therefore, if one individual completes an
evaluation while representing two or more separate disciplines or
professions, that individual would have to meet the definition of
qualified personnel in each area in which the individual is conducting
the evaluation or assessment. Given these standards and requirements,
we have retained the proposed definition to indicate that
multidisciplinary means the involvement of two or more separate
disciplines or professions and may include one individual who is
qualified in more than one discipline or profession.
Finally, for clarity, we have added cross-references to the use of
the term multidisciplinary, where appropriate, in Sec. Sec. 303.113,
303.321, and 303.340 regarding multidisciplinary evaluations,
assessments, and IFSP Teams.
Concerning adding a reference to transdisciplinary or
interdisciplinary, the term multidisciplinary is consistent with
section 635(a)(3) of the Act, regarding the requirement that the part C
statewide system must include a timely, comprehensive,
multidisciplinary evaluation of the functioning of each infant or
toddler with a disability in the State. Transdisciplinary and
interdisciplinary are specific team models. Multidisciplinary teams
could be based on these models as long as the team meets the State's
definition of multidisciplinary and the State's definition meets both
statutory and regulatory requirements in this part. Thus, referencing
specific team models in the regulatory definition of multidisciplinary
is not necessary.
Changes: We have revised the definition of multidisciplinary in
Sec. 303.24 to add paragraphs (a) and (b) and clarified in paragraph
(b) that the IFSP Team in Sec. 303.340, must include the involvement
of the parent and two or more individuals from separate disciplines or
professions and one of these individuals must be the service
coordinator (consistent with Sec. 303.343(a)(1)(iv)). We also have
added cross-references in Sec. 303.24(a) and (b) to Sec. Sec.
303.113, 303.321, and 303.340 regarding multidisciplinary evaluations,
assessments, and the IFSP Team.
Native Language (Sec. 303.25)
Comment: We received a number of comments on proposed Sec.
303.25(a)(2). Most commenters opposed the proposed requirement that the
native language be used in all direct contact with the child. The
commenters stated that such a requirement would be nearly impossible to
implement in States where many different languages are spoken and would
impose undue fiscal and personnel burdens on States where
implementation is feasible.
Additionally, these commenters indicated that the proposed
requirement would be inconsistent with section 602(20) of the Act,
regarding the definition of native language, and section 607 of the
Act, regarding requirements for prescribing regulations. One commenter
expressed concern that proposed Sec. 303.25(a)(2) would prohibit the
delivery of services in English in situations where the child is in
either a multilingual living or learning environment, even if the
parent wanted the services delivered in English, or would prohibit the
parent from serving as a translator for the EIS provider.
Several other commenters requested clarification regarding the
applicability of proposed Sec. 303.25(a)(2) in rural areas or areas
that suffer from shortages of EIS providers. Other commenters asked
what language should be used when conducting evaluations of newborns or
young infants. Commenters also requested clarification as to whether
and in what manner interpreters could be used when providing services.
A number of commenters supported proposed Sec. 303.25(a)(2)
stating that the provision would allow EIS providers to better
communicate with families and infants and toddlers with disabilities,
and would be consistent with 34 CFR 300.29 of the part B regulations,
regarding the definition of native language, and section 607(a) of the
Act.
Discussion: We agree with commenters that requiring the native
language to be used in all direct contact with a child, especially in
providing early intervention services to an infant or toddler with a
disability, may not be necessary or feasible in all circumstances. For
example, a child may not require the use of native language when part C
services are directly provided to the child when the child's receptive
or expressive language has not yet developed to indicate a clear spoken
language preference. Thus, we have not included in these final
regulations the requirement in proposed Sec. 303.25(a)(2) that native
language be used in all direct contact with the child. However, as
recipients of Federal financial assistance, part C lead agencies must
comply with the requirements in Title VI of the Civil Rights Act of
1964, which prohibits discrimination based on race, color, or national
origin in programs or activities receiving Federal financial
assistance.
Changes: We have removed proposed Sec. 303.25(a)(2).
Comment: None.
Discussion: To better align the definition of native language in
these part C regulations with the definition of this term in section
602(2) of the Act and in 34 CFR 300.29 of the part B regulations and to
ensure internal consistency between the native language definition in
Sec. 303.25(b) and the requirement in Sec. 303.321 to use
[[Page 60157]]
native language when conducting evaluations and assessments, we have
made the following changes.
First, we added to Sec. 303.25(a) the definition of native
language for individuals with limited English proficiency (LEP) that is
in 34 CFR 300.29(a) of the part B regulations and we cross-referenced
the statutory definition of LEP that is in section 602(18) of the Act.
With this revision, Sec. 303.25(a)(1) provides that the native
language of an individual with limited English proficiency is the
language normally used by that individual, or in the case of a child,
the language normally used by the parents of the child, except as
provided in Sec. 303.25(a)(2). We added new Sec. 303.25(a)(2) to
provide that, for evaluations and assessments of a child, the native
language of a child with limited English proficiency is the language
normally used by the child if qualified personnel conducting the
evaluation or assessment determine that this language is
developmentally appropriate for the child given the child's age and
communication skills.
These changes do not change the long-standing native language
requirements in Sec. 303.342, concerning IFSP meetings, Sec. 303.420,
concerning obtaining parental consent, and Sec. 303.421, concerning
prior written notice and procedural safeguards. As discussed in the
Analysis of Comments and Changes for subpart E of this part, we have
added a native language requirement in Sec. 303.404, concerning the
general notice of confidentiality procedures provided to parents.
Changes: We have revised Sec. 303.25(a)(1) to state that, when
used with respect to an individual who is limited English proficient
(LEP) as that term is defined in section 602(18) of IDEA, the term
native language means--(1) The language normally used by that
individual, or, in the case of a child, the language normally used by
the parents of the child, except as provided in Sec. 303.25(a)(2). We
also added a new paragraph (a)(2) to this section to provide that the
native language for an individual who is limited English proficient
means, for evaluations and assessments conducted pursuant to Sec.
303.321(a)(5) and (a)(6), the language normally used by the child if
determined developmentally appropriate for the child by qualified
personnel conducting the evaluation or assessment.
Natural Environments (Sec. 303.26)
Comment: Many commenters suggested changes to the proposed
definition of natural environments in Sec. 303.26. A few commenters
recommended adding the phrase ``community settings where children
without disabilities participate'' to make the definition consistent
with section 632(4)(G) of the Act. Other commenters recommended
retaining the reference to the ``child's age peers'' in current Sec.
303.18. Some commenters recommended replacing the word ``normal'' with
``typical'' because the term ``normal'' is value-laden, vague, and open
to interpretation.
One commenter recommended providing a list of natural environments
in which an infant or toddler with a disability may receive services.
Several commenters, some in response to Sec. 303.26 and others in
response to Sec. 303.126, recommended adding specific examples of
settings to Sec. 303.26, including Early Head Start or child care
programs, day care, play groups, churches, grocery stores, parks,
public libraries, community settings, and settings where parents with
infants and toddlers with similar disabilities gather.
Two other commenters recommended the definition indicate that a
clinical setting could be the natural environment, particularly when
the service requires the use of specialized equipment that cannot be
transported to the child's home. One commenter expressed concern that
mandating services to be provided in settings where non-disabled
children are present may suggest that the alternative is less than
acceptable. Another commenter recommended that the definition of
natural environments require that services be provided within family
routines and activities and opposed identifying specific settings.
Discussion: Three sections of these regulations describe natural
environments requirements that apply to States receiving funds under
part C of the Act: Sec. Sec. 303.26, 303.126, and 303.344(d)(1). We
address comments that relate to Sec. 303.26, regarding the definition
of natural environments, in this discussion section. We address
comments that relate to Sec. 303.126, regarding the requirements
related to natural environments in State applications, in the Analysis
of Comments and Changes for subpart B. Finally, we address comments
that relate to Sec. 303.344(d)(1), regarding the requirements related
to natural environments for IFSPs and IFSP Team decision-making
processes concerning appropriate service settings, in the Analysis of
Comments and Changes for subpart D.
The definition of natural environments in Sec. 303.26 remains
substantively unchanged from current Sec. 303.18 and is consistent
with the language in section 632(4)(G) of the Act, as well as the
following statutory sections:
Section 635(a)(16) of the Act, which is reflected in Sec. 303.126
and requires that the part C statewide system include policies and
procedures to ensure that, consistent with section 636(d)(5) of the
Act, to the maximum extent appropriate, early intervention services are
provided in natural environments and the provision of early
intervention services for any infant or toddler with a disability
occurs in a setting other than the natural environment that is most
appropriate, as determined by the parent and IFSP Team, only when early
intervention cannot be achieved satisfactorily for the infant or
toddler in the natural environment.
Section 636(d)(5) of the Act, which is reflected in Sec.
303.344(d)(1)(ii) and which requires that an IFSP contain a statement
of the natural environments in which early intervention services will
be provided appropriately, including a justification of the extent, if
any, to which the services will not be provided in the natural
environment. Section 632(4)(G) of the Act provides that natural
environments may include home and community settings. However, the
reference to community settings was not included in the proposed
regulations. We have added a reference to ``community settings'' in
Sec. 303.26 to ensure greater conformity with the statutory language,
to address commenters' concerns, and to clarify that the term natural
environments includes not only the home but community settings in which
one finds same-aged children who do not have disabilities (diagnosed
conditions, developmental delays, or, at the State's option, at-risk
children).
The term ``normal'' was introduced into the regulations
implementing the Individuals with Disabilities Education Act Amendments
of 1991 and at that time, ``normal'' was commonly used and accepted.
However, we agree with commenters that ``normal'' is less commonly used
today and have replaced the word ``normal'' with the word ``typical''
in the definition of natural environments in Sec. 303.26.
Concerning commenters' requests to add a list of settings or
examples of community settings, it would not be appropriate or
practicable to include a list of every setting that may be the natural
environment for a particular child or those settings that may not be
natural environments in these
[[Page 60158]]
regulations.\1\ In some circumstances, a setting that is natural for
one eligible child based on that child's outcomes, family routines, or
the nature of the service may not be natural for another child. As
further discussed in Sec. 303.344(d)(1) of the Analysis of Comments
and Changes for subpart D, the decision about whether an environment is
the natural environment is an individualized decision made by an
infant's or toddler's IFSP Team, which includes the parent.
Additionally, a variety of community settings exist that may be natural
environments, and we do not wish to limit the types of service settings
that the IFSP Team may consider appropriate. Thus, we have not added a
list of settings or specific community-based settings as requested by
commenters.
---------------------------------------------------------------------------
\1\ Lead agencies currently provide data on service settings
under Information Collection 1820-0578. Examples of community
settings identified in response to this information collection
include: child care centers (including family day care), preschools,
regular nursery schools, early childhood centers, libraries, grocery
stores, parks, restaurants, and community centers (e.g., YMCA, Boys
and Girls Clubs).
---------------------------------------------------------------------------
We appreciate the commenters' requests for clarification as to
whether clinics, hospitals, or a service provider's office may be
considered the natural environment in cases when specialized
instrumentation or equipment that cannot be transported to the home is
needed. Natural environments mean settings that are natural or typical
for an infant or toddler without a disability. Section 635(a)(16) of
the Act and Sec. 303.126 require services be provided, to the maximum
extent appropriate, to infants and toddlers with disabilities in
natural environments (including the home and community settings). We do
not believe that a clinic, hospital or service provider's office is a
natural environment for an infant or toddler without a disability;
therefore, such a setting would not be natural for an infant or toddler
with a disability.
However, Sec. 303.344(d)(1) requires that the identification of
the early intervention service needed, as well as the appropriate
setting for providing each service to an infant or toddler with a
disability, be individualized decisions made by the IFSP Team based on
that child's unique needs, family routines, and developmental outcomes.
If a determination is made by the IFSP Team that, based on a review of
all relevant information regarding the unique needs of the child, the
child cannot satisfactorily achieve the identified early intervention
outcomes in natural environments, then services could be provided in
another environment (e.g. clinic, hospital, service provider's office).
In such cases, a justification must be included in the IFSP, pursuant
to Sec. 303.344(d)(1)(ii)(A).
Concerning the comment to add a reference to family routines and
activities to the definition of natural environments, Sec. 303.26
allows for and supports providing services within family routines and
activities.
Changes: We have added in the definition of natural environments in
Sec. 303.26 the phrase ``or community settings'' after ``home'' and
the phrase ``same-aged'' before the phrase ``infant or toddler without
a disability.'' We also have replaced the reference to ``normal'' with
``typical.''
Parent (Sec. 303.27)
Comment: While a few commenters supported the changes to the
definition of parent, a majority of commenters did not support the
proposed changes and recommended that the definition of parent in Sec.
303.27 be amended. One commenter requested that ``non-relative
caregivers'' be included in the definition of parent.
Discussion: The definition of parent in Sec. 303.27 reflects
section 602(23) of the Act and is consistent with the definition of
parent in 34 CFR 300.30 of the part B regulations. Adding ``non-
relative caregivers'' to these regulations is not necessary because
when the child lives with a non-relative caregiver, that individual is
considered a parent under the provisions in Sec. 303.27(a)(4).
Further, including non-relative caregivers with whom the child does not
reside in the definition of parent would not be consistent with section
602(23)(c) of the Act.
Changes: None.
Comment: A few commenters suggested that the definition of parent
include a specific reference to foster child, in addition to the
current reference to ward of the State.
Discussion: The definition of ward of the State in Sec. 303.37
includes foster children. Therefore, adding ``foster child'' to ``ward
of the State'' in the definition of parent would be redundant.
Changes: None.
Comment: One commenter recommended that the Department clarify the
definition of parent to provide that foster parents, absent custody or
other legal right, do not have the right to consent to or deny early
intervention services. Another commenter requested clarification
concerning the role of the foster parent when the biological parent is
available, as well as when the whereabouts of the biological parent are
unknown or when the biological parent is incarcerated. The commenter
also requested guidance on how assertively the State should seek out
the biological parent to obtain consent.
Discussion: Section 602(23) of the Act provides that a foster
parent may act as the parent for the purposes of part C of the Act,
unless the foster parent is prohibited from acting as the parent by
State law. Thus, it would be inconsistent with the Act to require that
a foster parent have custody of the child, or other legal right, to act
on the child's behalf in matters of early intervention services if,
under State law, the foster parent is not precluded from serving as the
parent for that child.
When more than one individual seeks to act as the parent, Sec.
303.27 provides that the biological parent attempting to act as the
parent is presumed to be the parent unless that person does not have
legal authority to make decisions for the infant or toddler concerning
early intervention service matters, or there is a judicial order or
decree specifying another individual to act as the parent under part C
of the Act. Thus, when the whereabouts of the biological parent are
unknown (e.g., cases in which the parent is concerned about revealing
his or her location due to safety concerns) or the biological parent is
incarcerated, but the parent is attempting to act as the parent, the
biological parent would be presumed to be the parent. However, when the
whereabouts of the biological parent are unknown or the parent is
incarcerated, and the biological parent is not attempting to act as the
parent, an individual identified in Sec. 303.27, including the foster
parent would be presumed to be the parent unless State law,
regulations, or contractual obligations with a State or local entity
prohibit a foster parent from acting as a parent.
The Act and the regulations are silent on how assertively a State,
for purposes of obtaining consent, should seek out the biological
parent of an infant or toddler who is undergoing an eligibility
determination or who has been determined eligible to receive early
intervention services under part C of the Act. It is the Department's
position that these regulations should not prescribe the efforts,
including specific procedures or timelines, that a State must make in
its attempts to contact the biological parent(s). The procedures and
timelines will vary depending on numerous factors, including how
judicial orders or decrees are routinely handled in a State or
locality, and are best left to the State and local officials
[[Page 60159]]
to determine in light of State law and policy.
Changes: None.
Comment: Some commenters asked that we clarify the phrase ``when
attempting to act as the parent'' as used in Sec. 303.27(b)(1) to
describe the situation when a biological or adoptive parent attempts to
act as the parent and more than one party is qualified under the
regulations to act as a parent. One commenter noted that keeping the
biological parent involved in decisions concerning the child is always
important because the child may return to the care of the biological
parent.
A few commenters suggested that the determination of whether a
parent is ``attempting to act'' as the parent must be based on a
comprehensive assessment of whether the parent is attempting to perform
her or his role as a participant and decision-maker in the early
intervention process and not on whether a parent misses a meeting. One
commenter requested that the phrase ``attempting to act as a parent''
be deleted if specific clarification is not offered. Another commenter
raised concerns that lead agencies will misinterpret this paragraph to
mean that biological or adoptive parents must affirmatively assert
their rights or take action in order to be presumed to be the parent
for the purposes of this section. Another commenter requested that the
regulations reinforce the affirmative obligation under these
regulations to provide notice to, and accommodate the schedules of,
biological and adoptive parents when scheduling IFSP meetings.
Discussion: Section 303.27(b) was added to assist lead agencies and
EIS providers in determining the appropriate individuals who may act as
a ``parent'' under part C of the Act in those difficult situations when
more than one individual is attempting to act as a parent under these
regulations. This definition recognizes that the biological or adoptive
parent is presumed to be the parent for purposes of making decisions
for a child unless those rights have been legally terminated or
modified.
The phrase ``attempting to act as a parent'' refers to situations
when an individual attempts to assume the rights and responsibilities
of a parent under the Act and these regulations. An individual may
``attempt to act as a parent'' under the Act in many situations, such
as providing consent for an evaluation and assessment, attending an
IFSP Team meeting, and filing a complaint. Identifying all of the
circumstances under which an individual may ``attempt to act as a
parent'' would be difficult and is unnecessary.
The biological or adoptive parent would be presumed to be the
parent under these regulations, unless a question is raised about their
legal authority. There is nothing in the Act that requires the
biological or adoptive parent to affirmatively assert their rights to
be presumed to be the parent.
Pursuant to Sec. 303.27(b), unless a judicial order or decree
identifies a specific person or persons to act as the parent of an
infant or toddler, the biological or adoptive parent, when attempting
to act as a parent, must be determined to be the ``parent'' for
purposes of part C of the Act and thus retains all the rights and
responsibilities of a parent under the Act, including the right to
receive written notice and attend meetings.
Changes: None.
Comment: One commenter requested that the Department remove the
reference to ``health'' decisions in proposed Sec. 303.27(b)(1) and
(b)(2), regarding individuals that may act as the parent of an infant
or toddler with a disability for purposes of making health,
educational, or early intervention services decisions for the child.
The commenter stated that decisions concerning a child's health could
cover a broad range of issues and a judicial decision to appoint a
decision-maker to make health decisions for an eligible infant or
toddler in place of the child's biological or adoptive parent should
not necessarily have an impact on a biological or adoptive parent's
authority to make early intervention and educational decisions.
Discussion: We agree with the commenter that a judge may appoint a
person to make health-related decisions for an eligible infant or
toddler without intending to limit the biological parent's or adoptive
parent's role in early intervention decision-making. Therefore, we have
revised paragraphs (b)(1) and (b)(2) to remove the reference to
``health'' decisions.
Changes: We have removed the word ``health'' from Sec.
303.27(b)(1) and (b)(2).
Comment: One commenter recommended that the Department clarify that
a judicial appointment of a parent for the purposes of part C of the
Act may be a temporary or permanent appointment.
Discussion: The length of a judicial appointment of a parent for
the purposes of part C of the Act is at the discretion of the judge
issuing the appointment, is subject to State law, and is often decided
on a case-by-case basis. State law or the judge issuing the appointment
would determine whether an appointment is temporary or permanent and
the length of any appointment. Therefore, we have not revised the
definition as requested.
Changes: None.
Comment: None.
Discussion: For clarity and to eliminate redundancy, we have
revised the definition of parent in Sec. 303.27(b)(2) to state that if
an EIS provider or a public agency provides any services to a child or
any family member of that child, that EIS provider or public agency may
not act as the parent for that child. We have replaced ``early
intervention services or other services'' in proposed Sec.
303.27(b)(2) with ``any services'' in new Sec. 303.27(b)(2). This
change is necessary to make clear that if a public agency provides
services other than early intervention services to a family member of
the child, that public agency may not serve as the parent for that
child.
This change strengthens protections against potential conflicts of
interest by providing that a public agency that provides services to a
child or any family member of that child cannot act as the parent under
these regulations.
Changes: We have replaced in Sec. 303.27(b)(2) the phrase ``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'' with ``if an EIS provider or a public agency provides any
services to a child or any family member of that child, that EIS
provider or public agency may not act as the parent for that child.''
Comment: Some commenters requested that the phrase ``other
services'' as used in proposed Sec. 303.27(b)(2) be replaced with
``child welfare services.'' Another commenter asked if law guardians
and child welfare case managers appointed by a judge would meet the
definition of parent because neither ``law guardian'' nor ``child
welfare case manager'' meets the definition of public agency in Sec.
303.30. One commenter requested that private agencies be added to the
list of entities that are excluded from acting as a parent in Sec.
303.27(b)(2) because private agencies should not have the option to
serve in the place of a parent.
Discussion: As discussed previously, we have revised the definition
of parent to state that if an EIS provider or a public agency provides
any services to a child or any family member of that child, that EIS
provider or public agency may not act as the parent for that child,
which would preclude a public agency that provides child welfare
services (including a child welfare case manager) to the child or any
family member of the
[[Page 60160]]
child from acting as the parent for that child.
The meaning of the term ``law guardians'' referred to in the
comments is unclear. However, a guardian with a limited appointment
that does not authorize the guardian to act as a parent of the child
generally, or does not authorize the guardian to make early
intervention services decisions for the child, is not a parent within
the meaning of these regulations. The legal authority that the judicial
order grants to the individual is the controlling factor, not the term
used to identify that individual. Whether a person appointed as a
financial guardian, guardian ad litem, or other guardian (e.g., a law
guardian) has the requisite authority to be considered a parent under
this section depends on State law and the nature of the person's
appointment.
Adding a reference to private agencies in Sec. 303.27(b)(2),
regarding entities that are prohibited from acting as a parent, is
unnecessary because the language in Sec. 303.27(b)(2) expressly
references an EIS provider and the definition of EIS provider in Sec.
303.12 includes any entity, whether public, private, or non-profit, or
an individual that provides early intervention services under part C of
the Act, whether or not that entity receives Federal funds under part C
of the Act. Therefore, a private agency that provides early
intervention services to a child cannot serve as the parent for that
child.
Changes: None.
Parent Training and Information Center (Sec. 303.28)
Comment: One commenter recommended adding language to this
definition to require that the parent training and information centers
provide training that is targeted to all family members.
Discussion: Making the change suggested by the commenter is not
appropriate because Sec. 303.28 defines parent training and
information centers solely by reference to sections 671 and 672 of the
Act, which provide the substantive definitions of parent training and
information centers and community parent resource centers and identify
the responsibilities and activities of these centers. We cannot include
in these regulations changes that would alter the statutory
requirements for these centers under the Act.
Changes: None.
Personally Identifiable Information (Sec. 303.29)
Comment: Some commenters requested clarification of the
confidentiality provisions. One commenter requested that the
information protected under the part C confidentiality provisions align
with the information that is protected under FERPA.
Discussion: We agree it is important to align the definition of
personally identifiable information in these regulations with the
definition of that same term in 34 CFR 99.3 under the Family
Educational Rights and Privacy Act (FERPA) (in section 444 of the
General Education Provisions Act). Examples of data that would be
considered personally identifiable information under both the FERPA
regulations in 34 CFR 99.3, as well as under part C of the Act, include
the child's or parent's name and social security number, date and place
of birth, race, ethnicity, gender, physical description, and disability
or level of developmental delay, because some of this information can
also indirectly identify an individual depending on the combination of
factors and level of detail released.
The definition of personally identifiable information in 34 CFR
99.3 was the subject of the Department's December 9, 2008 Final
Regulations under FERPA in the Federal Register (73 FR 74805). Given
that the confidentiality provisions in Sec. Sec. 303.401 through
303.417 reference other specific FERPA provisions, we believe it is
appropriate to add in Sec. 303.29 a cross-reference to the FERPA
definition, as amended, rather than separately revising the definition
in these regulations. Thus, we adopt by reference in Sec. 303.29, with
appropriate modifications, the FERPA definition in Sec. 99.3, as
amended.
Changes: We have revised the definition of personally identifiable
information in Sec. 303.29 to cross-reference the definition in 34 CFR
99.3, as amended, except that the terms ``student'' and ``school'' mean
``child'' and ``EIS providers'' respectively as used in this part.
Public Agency (Sec. 303.30)
Comment: None.
Discussion: We use the term public agency in this part to refer to
public agencies that provide early intervention services as well as
public agencies that provide other services or are sources of funding
for early intervention services. Therefore, we have revised the
definition of public agency in Sec. 303.30 to make clear that the term
includes the lead agency and any other agency or political subdivision
of the State. We also have clarified, in Sec. 303.12, that a public
agency that is responsible for providing early intervention services to
infants and toddlers with disabilities under this part and their
families is an EIS provider under Sec. 303.12.
Changes: We have removed the phrase ``that is responsible for
providing early intervention services to infants and toddlers with
disabilities under this part and their families'' from Sec. 303.30.
Qualified Personnel (Sec. 303.31)
Comment: One commenter requested that the word ``area'' in the
definition of qualified personnel in Sec. 303.31 be changed to ``type
of early intervention services.'' The commenter expressed concern that
an individual could provide services in the ``area'' of occupational
therapy, but not be a licensed or qualified occupational therapist.
Another commenter requested clarification of the role of qualified
personnel in conducting evaluations.
Discussion: States have the authority to establish standards for
licensure or certification and to determine on a case-by-case basis
personnel who meet those standards. Therefore, an individual could only
provide services in the area of occupational therapy if that individual
meets State approved or recognized certification, licensing,
registration or other comparable requirements that apply to the area in
which the individual is providing early intervention services.
Paraprofessionals or assistants could assist in the provision of
occupational therapy if they 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 pursuant to Sec. 303.119(c).
The term ``area'' as used in Sec. 303.31 refers to the specific
domain in which the individual has qualified through State
certification, licensing, registration, or other comparable
requirements to provide early intervention services. Thus, revising
Sec. 303.31 as suggested by this commenter is not necessary.
We agree with the commenter's request to clarify the role of
qualified personnel in conducting evaluations. Thus, we have added in
Sec. 303.31 a reference to conducting evaluations or assessments to
reflect the long-standing requirement in current Sec. 303.322 and new
Sec. 303.321 (proposed Sec. 303.320) that evaluations and assessments
must be conducted by qualified personnel.
Changes: We have added ``conducting evaluations or assessments or''
before ``providing early intervention services.''
[[Page 60161]]
Scientifically Based Research (Sec. 303.32)
Comment: None.
Discussion: We determined that adding a definition for
scientifically based research to subpart A would be helpful because the
definition will provide clarity and understanding when the term
scientifically based research is used in this part. Thus, we have added
the defined term scientifically based research and provided that the
term has the same meaning as in section 9101(37) of the Elementary and
Secondary Education Act of 1965, as amended (ESEA). When applying this
definition to the regulations under part C of the Act, any reference to
``education activities and programs'' refers to ``early intervention
services.''
Change: A cross-reference to the definition of scientifically based
research in section 9101(37) of the ESEA has been added as new Sec.
303.32. Subsequent definitions have been renumbered accordingly.
Service Coordination Services (Case Management) (Proposed Sec. 303.33)
(New Sec. 303.34)
Comment: Numerous commenters expressed a need for clarification of
this section. A substantial number of commenters stated that the
regulations should have included the language from the definition of
service coordination (case management) in current Sec.
303.23(a)(2)(ii), which provides that the service coordinator is
responsible for ``serving as the single point of contact in helping
parents to obtain the services and assistance they need.'' The
commenters suggested that only requiring the service coordinator to
assist parents in ``gaining access to * * * services,'' in proposed
Sec. 303.33(a)(2), would decrease the level of assistance and limit
the types of services that families will receive.
Discussion: We agree that the proposed language and structure of
this section may cause confusion and, therefore, we have made several
structural and organizational revisions to improve clarity and
readability. Additionally, while the proposed language in this section
was not meant to limit or decrease the level of assistance that a
service coordinator would provide to an infant or toddler with a
disability and his or her family, we recognize that removing the phrase
``serving as the single point of contact in helping parents to obtain
the services and assistance they need'' from the regulations has caused
concern and confusion. Therefore, we have clarified in these final
regulations that the service coordinator is responsible for assisting
parents of infants and toddlers with disabilities in obtaining access
to needed early intervention services and other services identified in
the IFSP. Additionally, for clarity, we have provided examples of
activities that the service coordinator may engage in when assisting
parents in obtaining access to needed early intervention services and
other services identified in the IFSP.
We have further clarified that service coordination services assist
and enable an infant or toddler with a disability and the child's
family to receive the services and rights, including procedural
safeguards, required under part C of the Act. Such activities include:
(1) The coordination of early intervention services and other services
that the child needs or is being provided; (2) conducting referral and
other activities; (3) ensuring the timely provision of services; and
(4) conducting follow-up activities to determine that appropriate part
C services are being provided.
Changes: We have reorganized paragraph (a) of new Sec. 303.34
(proposed Sec. 303.33(a)) as follows: Paragraph (a)(1) defines service
coordination services; paragraph (a)(2) provides that each infant or
toddler with a disability and the child's family must be provided a
service coordinator and describes the responsibilities of the service
coordinator; and paragraph (a)(3) describes the activities involved in
service coordination. Section 303.34(b) (proposed Sec. 303.33(b)) has
been revised to indicate in Sec. 303.34(b)(1) that service
coordination services include assisting parents of infants and toddlers
with disabilities in obtaining access to needed early intervention
services and other services identified in the IFSP. Section
303.34(b)(2) has been added to indicate that service coordination
services include coordinating the provision of early intervention
services and other services (such as educational, social, and medical
services that are not provided for diagnostic or evaluative purposes)
that the child needs or is being provided. We have modified Sec.
303.34(b)(5) (proposed Sec. 303.33(b)(3)) to add the phrase
``conducting referral and other activities'' as an example of
activities that may assist families in identifying available EIS
providers. We also have revised Sec. 303.34(b)(6) (proposed Sec.
303.33(b)(4)) to add the phrase ``to ensure that the services are
provided in a timely manner.'' Finally, we have added Sec.
303.34(b)(7) to clarify that service coordination services also include
conducting follow-up activities to determine that appropriate part C
services are being provided.
Comment: Several commenters expressed concern that the proposed
regulation was unclear about who could serve in the capacity of a
service coordinator, and some commenters requested that the regulations
specify exactly who may serve as a service coordinator. Other
commenters expressed concern that the qualifications for service
coordinators may have been eliminated. One commenter recommended
modifying the definition to require that a service coordinator be
selected from the profession most immediately relevant to the needs of
the child or family.
Discussion: Section 303.13(a)(7) requires that service coordination
services must be provided by qualified personnel as defined in Sec.
303.31. The definition of qualified personnel in Sec. 303.31 states
that personnel are qualified if they meet State-approved or State-
recognized certification, licensing, registration, or other comparable
requirements that apply to the area in which the individuals are
providing early intervention services. Additionally, Sec. 303.344(g),
which provides that an IFSP contain information about the service
coordinator, requires that the service coordinator be selected from the
profession most immediately relevant to the child's or family's needs
or be a person who is otherwise qualified to carry out all applicable
responsibilities under part C of the Act. Thus, repeating these
criteria in new Sec. 303.34 (proposed Sec. 303.33) is not necessary.
Changes: None.
Comment: Some commenters suggested that the regulations could be
read to require parents to coordinate early intervention services. Two
commenters expressed concern that, as proposed, the regulation could be
read to mean that more than one person may fill the role of a service
coordinator for a particular infant or toddler and, thereby compromise
consistency and quality of services.
Discussion: Nothing in these regulations requires a parent to
coordinate early intervention services. Section 303.34(a)(2)(i)
(proposed Sec. 303.33(a)(3)) specifies that the service coordinator,
or case manager, is responsible for coordinating all services required
under part 303 across agency lines. Section 303.34(a)(2)(ii) (proposed
Sec. 303.33(a)(3)) stipulates that a service coordinator, or case
manager, serves as the single point of contact for the family. This
provision means that only one person may serve as the service
coordinator or case manager for a particular family at a given time.
However, the regulations do not
[[Page 60162]]
prohibit more than one person from serving as the service coordinator
or case manager over the entire period that the eligible infant or
toddler is receiving early intervention services under part C of the
Act, provided that only one service coordinator or case manager is
assigned to an infant or toddler at a given time to ensure that parents
and EIS providers for a particular child have a single point of
contact.
Changes: None.
Comment: One commenter requested that the Department clarify the
statement in proposed Sec. 303.33(c) 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 of
last resort.
Discussion: The legislative history of the 1991 amendments to the
Act indicates that use of the term ``service coordination'' is not
intended to affect authority to seek reimbursement for services
provided under Medicaid or any other legislation that makes reference
to ``case management'' services. See H.R. Rep. No. 198, 102d Cong., 1st
Sess. 12 (1991); S. Rep. No. 84, 102d Cong., 1st Sess. 20 (1991).
Accordingly, this paragraph is intended to reflect the intent of
Congress. For the same reason, we added the parenthetical reference to
case management in the title of this section.
Changes: None.
Comment: One commenter requested that the definition of service
coordination services (case management) be amended to include those
services that are not directly early intervention services, but that
are essential to the well-being of the child and the family, in
accordance with Sec. 303.344(e). Section 303.344(e) provides that a
child's IFSP must identify medical and other services that the child or
family member needs or is receiving through other sources, but that are
neither required nor funded under part C of the Act.
Discussion: The commenters' concern is addressed sufficiently by
the requirements in new Sec. 303.34(a)(3)(ii) (proposed Sec.
303.33(a)(2)), which provides that service coordination involves
coordinating the 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.
Changes: None.
Comment: One commenter recommended that proposed Sec.
303.33(a)(2), which provides that a service coordinator or case manager
must assist parents of infants and toddlers with disabilities to
coordinate early intervention services and other services identified in
the IFSP that are needed or are being provided to the infant or toddler
with a disability, be revised to state that a service coordinator or
case manager must coordinate early intervention and other services
identified in the IFSP for ``other family members'' in addition to
``parents.''
Discussion: Including a reference to ``other family members'' in
this section would be inconsistent with sections 636(e) and 639(a)(3)
of the Act, which provide that a parent, and not ``other family
members,'' has the authority to consent to the eligible child and
family member's receipt of any early intervention services identified
in the IFSP by the IFSP Team.
Changes: None.
Subpart B--State Eligibility for a Grant and Requirements for a
Statewide System
State Eligibility--Requirements for a Grant Under This Part (Sec.
303.101)
Comment: A few commenters recommended adding the phrase ``Native
American'' before the words ``Indian infants and toddler'' in Sec.
303.101(a)(1)(i). A few commenters suggested that in addition to
referencing ``wards of the State,'' the regulations, including Sec.
303.101(a)(1)(iii), should also refer to ``children in foster care.''
Discussion: Section 303.101(a)(1)(i) provides that, as a grant
condition, a State must assure 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,
including Indian infants and toddlers with disabilities and their
families residing on a reservation geographically located in the State.
Adding the phrase ``Native American'' before the words ``Indian infants
and toddlers'' in Sec. 303.101(a)(1)(i) is not appropriate because the
language in Sec. 303.101(a)(1)(i) reflects the language in section
634(1) of the Act, which does not use the term ``Native American'' in
referring to Indian infants and toddlers. Additionally, it is not
appropriate to add the phrase ``Native American'' before the words
``Indian infants and toddlers'' in Sec. 303.101(a)(1)(i) because the
term Indian is specifically defined in section 602(12) of the Act and
Sec. 303.19(a) of these regulations. Given that Indian is a defined
term in these regulations, it could cause confusion to refer to
``Native American'' Indian infants and toddlers in this section.
Similarly, adding the phrase ``children in foster care'' each time
the regulations refer to ``wards of the State'' is unnecessary because
the definition of wards of the State in Sec. 303.37 makes clear that a
foster child is a ward of the State unless that child has a foster
parent who meets the definition of parent in Sec. 303.27. Therefore,
adding the phrase ``children in foster care'' to Sec.
303.101(a)(1)(iii) would be redundant.
Changes: None.
Comment: None.
Discussion: To incorporate the long-standing requirement that
States have in place policies and procedures that address each of the
components of the part C statewide system, we have clarified in Sec.
303.101(a)(2) that the State's application must include an assurance
that the State has in effect policies and procedures that address each
of the components required in Sec. Sec. 303.111 through 303.126.
Changes: We have added to Sec. 303.101(a)(2) the words ``policies
and procedures that address'' after the word ``including'' and before
the words ``at a minimum.''
Comment: None.
Discussion: Based on further review, we have determined that it is
more appropriate to describe in subpart B--rather than subpart C--of
these regulations the State's obligation to obtain prior Secretarial
approval of those policies and procedures that are required to be
submitted with the State's application. For this reason, we have moved
proposed Sec. 303.208(b) to new Sec. 303.101(c), and further
specified in Sec. 303.101(c), those policies and procedures that are
required to be submitted as part of the State's application.
Changes: We have added a new Sec. 303.101(c), based on proposed
Sec. 303.208(b), to describe the State's obligation to obtain approval
by the Secretary before implementing any policy or procedure that is
required to be submitted as part of its application under Sec. Sec.
303.203, 303.204, 303.206, 303.207, 303.208, 303.209, and 303.211.
Acquisition of Equipment and Construction or Alteration of Facilities
(Sec. 303.104)
Comment: None.
Discussion: The word ``Act'' was inadvertently omitted from the
title ``Americans with Disabilities Accessibility Guidelines for
Buildings and Facilities'' in Sec. 303.104(b)(1). We have revised this
section to reflect the correct title of the guidelines.
Changes: We have added the word ``Act'' following the words
``Americans with Disabilities.''
[[Page 60163]]
Positive Efforts To Employ and Advance Qualified Individuals With
Disabilities (Sec. 303.105)
Comment: Some commenters requested that this section be amended to
include positive efforts to employ and advance parents of individuals
with disabilities because such efforts would benefit the part C system
by encouraging parent leadership at all levels. A few commenters
indicated general support for the language in this section, but
requested that the regulations require States to report to the Office
of Special Education Programs (OSEP) on their plan and efforts to
employ qualified individuals with disabilities.
Discussion: We agree with the commenter that positive efforts to
employ and advance parents of individuals with disabilities would
encourage parent participation in State part C programs. However, the
language in Sec. 303.105 reflects the requirement in section 606 of
the Act, concerning the employment and advancement of qualified
individuals with disabilities themselves, and, therefore, we do not
believe that it is appropriate to expand this requirement to include
the parents of individuals with disabilities, as suggested by the
commenters. Nothing in the Act precludes a State from making positive
efforts to employ and advance in employment parents of individuals with
disabilities if such a policy is consistent with State statute,
regulation, and policy. Additionally, section 606 of the Act does not
require that States report to OSEP on their efforts to employ and
advance qualified individuals with disabilities. In carrying out its
monitoring function, OSEP may review, as appropriate, State plans and
efforts to employ and advance qualified individuals with disabilities,
but the Department's position is that it would not be useful to require
States to report this information to OSEP because State hiring and
retention plans and efforts vary based on the individual employment
needs of each State as do the State laws, regulations, or written
policies that govern the certification, licensing, and registration of
qualified personnel providing early intervention services in each State
part C program.
Changes: None.
State Definition of Developmental Delay (Sec. 303.111)
Comment: Some commenters strongly supported the flexibility
afforded States through the regulatory language in Sec. 303.111,
regarding a State's definition of developmental delay. Other commenters
requested that the Department define the term ``rigorous'' in Sec.
303.111. One commenter requested that the regulations clarify that a
``rigorous'' definition of developmental delay does not necessarily
mean that States must change their definitions to make them more
rigorous than they were before the enactment of the 2004 amendments to
the Act. The same commenter expressed concern that any definition of
developmental delay under Sec. 303.111 would exclude certain children
who are eligible under the State's existing definition of developmental
delay.
Another commenter suggested that Sec. 303.111 be amended to
include ``children'' with delays, and not only ``infants and
toddlers,'' because of a State's option to make part C services
available to children ages three and older pursuant to Sec. 303.211.
Discussion: The definition of developmental delay in Sec. 303.111,
which is aligned with section 635(a)(1) of the Act, replaces the
definition of developmental delay in current Sec. Sec. 303.161 and
303.300. Consistent with Sec. 303.203(c), a State's definition of
developmental delay is considered to be rigorous under part C of the
Act if the definition meets the requirements in Sec. 303.111(a) and
(b), and, was established in accordance with the public participation
requirements in new Sec. 303.208(b).
As required in Sec. 303.111, a State's definition of developmental
delay must include: (1) Consistent with Sec. 303.321, a description of
the evaluation and assessment procedures that will be used to measure a
child's development; and (2) a description of the specific 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). Additionally, in order to be
``rigorous'', each State's definition of developmental delay must be
established in accordance with the public participation requirements in
new Sec. 303.208(b) to enable parents, EIS providers, Council members
and other stakeholders and members of the public to comment on the
State's definition. Section 303.111 does not require a State to revise,
or preclude a State from using, its existing definition of
developmental delay as long as the definition meets the requirements in
Sec. 303.111 and was established in accordance with the public
participation requirements that are set forth in new Sec. 303.208(b)
after December 2004.
We decline to replace the phrase ``infants and toddlers,'' as used
in Sec. 303.111, with the term ``child,'' as one commenter requested,
because this change is unnecessary. The definition of ``infant or
toddler with a disability'' in Sec. 303.21(c) includes any child to
whom the State elects to offer part C services under section 635(c) of
the Act and Sec. 303.211.
Changes: None.
Availability of Early Intervention Services (Sec. 303.112)
Comment: Several commenters requested that specific terms in this
section be defined or clarified. Many commenters requested that these
regulations define the term ``scientifically based'' and that the
definition of the term be aligned, similar to part B of the Act, with
the definition in Title I of ESEA. A few commenters recommended
replacing the phrase ``scientifically based'' with ``peer-reviewed''
(or vice versa) to provide for consistency throughout the regulations.
One commenter requested that the Department clarify that
``scientifically based research'' and ``peer-reviewed research'' are
two distinct terms, that they cannot be used interchangeably, and that
the terms apply to both lead agencies and IFSP Teams. Finally, one
commenter requested that the regulations define the term
``practicable.''
Discussion: We agree with the commenters that the definitions of
``scientifically based research'' under parts B and C of the Act should
be aligned with and explicitly cross-reference the definition of
``scientifically based research'' from section 9101(37) of the ESEA. We
have added a cross-reference to this definition in new Sec. 303.32.
We also agree that the term ``scientifically based research'' is
not interchangeable with ``peer-reviewed research.'' The definition of
scientifically based research is broader and includes the concept of
peer-reviewed research. Peer-reviewed research generally refers to
research that is reviewed by qualified and independent reviewers to
ensure that the quality of the information meets the standards of the
field before the research is published. However, there is no single
definition of ``peer-reviewed research'' because the review process
varies depending on the type of information being reviewed.
We do not agree with the commenter, however, that the terms
``scientifically based research'' and ``peer-reviewed research'' apply
to both lead agencies and IFSP Teams because these terms are used in
different sections of the regulations for different purposes.
Use of the term ``scientifically based research'' in Sec. 303.112
reflects the requirement in section 635(a)(2) of the
[[Page 60164]]
Act that a lead agency must include as a part of its part C statewide
system a policy that ensures that appropriate early intervention
services based on scientifically based research, to the extent
practicable, are available to all infants and toddlers with
disabilities and their families. The use of the term peer-reviewed
research, on the other hand, reflects the requirement in section
636(d)(4) of the Act, which provides that an 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 as required by these regulations. Finally, with
regard to the comment requesting that the Department define the term
``practicable'' in both Sec. Sec. 303.112 and 303.344(d)(1), it is the
Department's position that this change is not necessary. In the context
of these regulations, the term has its plain meaning (i.e., feasible
and possible). As used in Sec. 303.112, ensuring that ``appropriate
early intervention services are based on scientifically based research,
to the extent practicable'' means that services and supports should be
based on scientifically based research to the extent that it is
feasible or possible, given the availability of scientifically based
research concerning a particular early intervention service.
Changes: None.
Comment: Some commenters suggested revising Sec. 303.112 to
require States to ensure that early intervention services are not only
available, but also accessible, to all infants and toddlers with
disabilities and their families, including families in rural areas.
Discussion: Section 303.112 reflects the language of, and
requirements in, section 635(a)(2) of the Act that each part C
statewide system must have in effect a State policy that ensures that
appropriate early intervention services, based on scientifically based
research, to the extent practicable, 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 who are homeless children and their
families. Children living in rural areas are a historically
underrepresented population and as stated in Sec. 303.1(d), one of the
purposes of this program is to enhance the capacity of State and local
agencies and service providers to identify, evaluate, and meet the
needs of rural children. Additionally, under Sec. 303.227(a), States
must ensure that policies and practices have been adopted to ensure
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. Given these
requirements, we expect that accessibility issues, such as
transportation, that may be specific to these groups will be addressed
by the lead agency.
Lead agencies must comply with the requirements in Title II of the
Americans with Disabilities Act of 1990 (ADA), which apply to public
entities (i.e., State and local governments), and the requirements in
section 504 of the Rehabilitation Act of 1973 (Section 504), which
apply to recipients of Federal financial assistance. Both Title II of
the ADA and Section 504 prohibit discrimination on the basis of
disability, including exclusion from participation in, and the denial
of the benefits of, any program or activity of a lead agency. Both of
these laws and their implementing regulations generally require
appropriate auxiliary aids and services be made available where
necessary to afford a qualified individual with a disability an equal
opportunity to participate in, and enjoy the benefits of, any program
or activity conducted by a lead agency that receives a grant under part
C of the Act. Thus, lead agencies are required to ensure that early
intervention services are accessible under Title II of the ADA and
Section 504, as appropriate. It would be redundant for the part C
regulations to include these accessibility requirements.
Changes: None.
Comment: Two commenters recommended that we specifically reference,
in Sec. 303.112, children who have experienced or have been exposed to
abuse, neglect, or family violence.
Discussion: Section 303.112 of these regulations reflects the
requirement in section 635(a)(2) of the Act that a State's system
include a policy that ensures that early intervention services are
available to all infants and toddlers with disabilities and their
families, including Indian children with disabilities and their
families residing on a reservation geographically located in the State
and homeless children with disabilities and their families. We define
the word including in Sec. 303.18 of subpart A of these regulations to
mean that the items named are not all the possible items that are
covered, whether like or unlike the ones named. The use of the term
``including'' in Sec. 303.112 is meant to make clear that the list of
groups (i.e., Indian children and homeless children) is not exhaustive.
We also note that provisions regarding the identification of infants
and toddlers with disabilities who have experienced or have been
exposed to abuse, neglect, or family violence (and other subpopulations
that were specifically added in the 2004 Amendments to the Act) are
reflected in Sec. 303.302(c) of these regulations, which address the
scope and coordination of the State's child find system. Thus, revising
Sec. 303.112 to specifically identify additional subgroups of infants
and toddlers with disabilities and their families is not necessary.
Changes: None.
Evaluation, Assessment, and Nondiscriminatory Procedures (Sec.
303.113)
Comment: Two commenters recommended adding the word ``voluntary''
before ``family-directed identification of the needs of the family'' in
paragraph (a)(2) of this section to clarify that the part C program is
voluntary and that the assessment cannot take place unless and until
parents agree to the assessment.
Discussion: We agree that the family-directed identification of the
needs of the family referenced in Sec. 303.113(a)(2) is voluntary on
the part of the family. However, it is not necessary to revise Sec.
303.113 because, in Sec. 303.113(b), we make clear that the family
assessment must meet the requirements in Sec. 303.321. Section
303.321(c)(2), in turn, provides that the family assessment must be
voluntary on the part of the family. We decline to make the requested
change because it would be redundant to repeat the family assessment
requirements in Sec. 303.113.
Changes: None.
Individualized Family Service Plans (IFSPs) (Sec. 303.114)
Comment: One commenter recommended adding the words ``and his/her
family'' after the term ``disability'' in this section.
Discussion: We agree that the IFSP is designed to address the needs
of both the infant and toddler with a disability and the child's
family. Accordingly, we have revised Sec. 303.114 to make clear that
the State's system must provide an IFSP for each infant or toddler with
a disability and the child's family in the State. Additionally, we have
reworded Sec. 303.114, without changing the substantive meaning.
Changes: We have (a) added the words ``and his or her family''
following the phrase ``each infant or toddler with a disability'' in
Sec. 303.114, (b) replaced
[[Page 60165]]
the word ``include'' with the word ``ensure,'' and (c) clarified that
the IFSP developed and implemented for a child must meet the
requirements in Sec. Sec. 303.340 through 303.346 and include service
coordination services.
Comprehensive Child Find System (Sec. 303.115)
Comment: One commenter recommended that language be included in
this section to explicitly require States to seek out and serve all
infants and toddlers under the age of three, regardless of when they
were referred to the lead agency for early intervention services. The
commenter expressed the belief that many children referred to the part
C program after age two are not served.
Discussion: We do not believe that the requested change is
appropriate or necessary because Sec. 303.115 provides that the
State's comprehensive child find system must meet the requirements in
Sec. Sec. 303.301 through 303.303. Section 303.302(b)(1) expressly
requires a lead agency to ensure that all infants and toddlers with
disabilities in the State who are eligible for services under part C of
the Act are identified, located, and evaluated. Additionally, the
definition of an infant or toddler with a disability in Sec. 303.21
expressly includes any eligible child until that child reaches the age
of three.
Thus, even if a child is referred to the part C program after the
age of two, the lead agency, with parental consent, must conduct an
evaluation under Sec. 303.321 or provide the parent with notice (under
Sec. 303.421(b)) explaining why an evaluation is not being conducted
(i.e., the child is not suspected of having a disability).
Additionally, if the parent consents to an evaluation, new Sec.
303.310(b) requires that the initial evaluation and the initial
assessment of the child and the initial IFSP meeting must be conducted
within 45 days of the child's referral to the part C program. (However,
as provided under Sec. 303.209(b)(1)(iii), if a child is referred less
than 45 days prior to his or her third birthday, the lead agency is not
required to evaluate the child; instead, if the child may be eligible
for services under part B of the Act, the lead agency, with parental
consent, is required to refer the child to the part B program.)
Section 303.342(e) requires that when a child is determined
eligible for part C services and the parent consents to the provision
of part C services identified on the child's IFSP, the lead agency must
ensure that those early intervention services are available and
provided to the child.
Changes: None.
Central Directory (Sec. 303.117)
Comment: Some commenters objected to proposed Sec. 303.117,
regarding the central directory being published on the lead agency's
Web site because many families may not have access to a computer. The
commenters recommended that we require lead agencies to disseminate
printed central directories. Two of these commenters requested that we
specify the means, other than through a Web site, by which lead
agencies may disseminate the central directory. Another commenter
stated that a Web-only directory could be easily updated and could
provide greater access to all parents.
A few commenters requested that the regulations require that
material placed on the Web site be accessible to and usable by
individuals with disabilities and for non-English speaking families.
One commenter requested that the Department require that the central
directory be made available in the main languages spoken in the State.
Discussion: Section 303.117 specifies that each system's central
directory must be accessible to the general public through publication
on the lead agency's Web site and ``other appropriate means.'' This
section does not permit the lead agency to make the central directory
accessible and available only through its Web site. The lead agency
must make the central directory available through other appropriate
means.
``Other appropriate means'' may include providing printed copies of
the central directory at locations, such as libraries, and offices of
key primary referral sources. Given that needs vary from State to
State, each State is in the best position to determine the additional,
appropriate means that the lead agency will use to make its central
directory accessible. Thus, it would not be constructive to include in
Sec. 303.117 an exhaustive list of the methods a lead agency could use
to make its central directory accessible to the general public.
In response to commenters' concerns about the ability of
individuals with disabilities to access the central directory,
accessibility to the central directory requires not only the ability of
the general public to obtain a copy of the directory, but also the
ability to access the contents in the directory. Lead agencies must
comply with the requirements in the ADA, which apply to public entities
(i.e., State and local governments), and the requirements in Section
504, which apply to recipients of Federal financial assistance. Both of
these statutes and their implementing regulations generally require
that communications with individuals with disabilities be as effective
as communications with individuals without disabilities, and that
appropriate auxiliary aids and services be made available where
necessary to afford a qualified individual with a disability an equal
opportunity to participate in, and enjoy the benefits of, any program
or activity conducted by a lead agency that receives a grant under part
C of the Act. Further clarification in Sec. 303.117 is not necessary
because the lead agency is already responsible in Sec. 303.117 for
ensuring that the central directory is accessible and is also subject
to the requirements of these other Federal laws.
Regarding access to the central directory by non-English speaking
families, recipients of Federal funds, including lead agencies, must
take reasonable steps to ensure that persons of limited English
proficiency (LEP) have meaningful access to programs and activities
funded by the Federal government under Title VI of the Civil Rights Act
of 1964 and implementing regulations (42 U.S.C. 2000d et seq. and 34
CFR 100.1 et seq.). Because the lead agency is responsible for ensuring
that the central directory is accessible in Sec. 303.117 and such
accessibility includes providing LEP persons with meaningful access
under Title VI of the Civil Rights Act of 1964, we decline to make the
changes requested by the commenters.
Changes: None.
Comment: One commenter requested that the Department revise Sec.
303.117 to include more guidance on the actual contents of the central
directory. A few commenters recommended that lead agencies be required
to update the central directory at least annually.
Discussion: Section 635(a)(7) of the Act requires that the central
directory include information on early intervention services,
resources, and experts available in the State and research and
demonstration projects being conducted in the State. To the extent
consistent with this statutory requirement, Sec. 303.117 provides more
detail on the information that must be included in the directory.
Section 303.117 requires the central directory to include information
about: public and private early intervention services, resources, and
experts available in the State; professional and other groups that
provide assistance to infants and toddlers with disabilities eligible
under part C of the Act and their families; and research and
demonstration projects being conducted in the State relating to
[[Page 60166]]
infants and toddlers with disabilities. Section 303.117 identifies the
minimal information that the directory must include for the directory
to be useful to the general public. Nothing in the Act or these
regulations prohibits a State from including other relevant information
that it deems appropriate.
Section 303.117 requires that the central directory contain
accurate and up-to-date information. To comply with the requirement
that the information be accurate and up-to-date, States likely may
update their central directories more often than annually. Thus,
including a requirement that the directory be updated at least annually
might be interpreted as setting a lower standard than the requirement
in Sec. 303.117 that States maintain an accurate and up-to-date
directory.
Changes: None.
Comprehensive System of Personnel Development (CSPD) (Sec. 303.118)
Comment: Some commenters requested that this section require a
State's CSPD to include training that is targeted to particular groups
of service providers or training on techniques and services that
address the specific needs of particular groups of infants and
toddlers. For example, one commenter requested that the CSPD provide
training specific to serving children who are homeless and children who
have been exposed to, or have experienced, violence or trauma. Another
commenter requested that training for occupational therapists be
explicitly included. Other commenters requested that the regulations
require that all training available under the CSPD be mandatory.
Discussion: The requirements for a CSPD in Sec. 303.118
incorporate the requirements in section 635(a)(8) of the Act. With
respect to the request that a State's CSPD specifically require
training that is targeted to address the early intervention service
needs of infants and toddlers with disabilities who are homeless or who
have been exposed to or experienced violence or trauma, we do not
believe that it is appropriate for the Department to require that a
State's CSPD mandate particular types of training or training targeted
to specific populations. Each State is in the best position to evaluate
the training needs of personnel providing early intervention services
in that State and to design the CSPD to meet those needs. Similarly, it
is the Department's position that it is not necessary to list in the
regulations occupational therapy or other specific fields in which
training must be provided, particularly given that Sec. 303.13(a)(7)
requires that qualified personnel provide all early intervention
services, including occupational therapy. Moreover, Sec. 303.119(a),
which requires that a State's system include policies and procedures
relating to the establishment and maintenance of qualification
standards to ensure that personnel are appropriately and adequately
prepared and trained, is sufficiently broad to ensure that each State
will address, as appropriate, the needs of its specific subpopulations
and identify any providers or personnel that may need more specific
training.
We disagree that the regulations should require a State's CSPD to
mandate all training, including the training described in Sec.
303.118(b). As noted in the preceding paragraph, we want to provide
each State with flexibility to create a CSPD with the appropriate
components to meet that State's unique training and personnel
development needs.
Changes: None.
Comment: One commenter stated that lead agencies do not have
authority over higher education systems and curriculum and recommended
that Sec. 303.118 be revised to only require that the lead agency make
efforts to work with higher education systems and other training
providers, including national associations, to ensure that training
programs have adequate space and an updated curriculum to train the
necessary early intervention services personnel.
Discussion: Section 303.118 does not imply that lead agencies have
authority over institutions of higher education (IHEs) and IHE
curricula. Nothing in Sec. 303.118 prescribes IHE curricula; rather,
Sec. 303.118(a)(2) requires only that a CSPD promote the preparation
of EIS providers who are fully and appropriately qualified to provide
early intervention services under part C of the Act. For this reason,
we do not believe that the requested change is necessary.
Changes: None.
Comment: Some commenters suggested that the Department retain the
language from current Sec. 303.360(b)(4)(iii), which requires the CSPD
to include training related to assisting families in enhancing the
development of their children, and in participating fully in the
development and implementation of IFSPs. The commenters stated that, if
such training is included in the regulations, it should be required and
not optional. One commenter recommended that this section include
training for parents concerning their rights, identifying functional
outcomes, and IFSP processes.
Discussion: The 2004 amendments of the Act revised section
635(a)(8) of the Act to mandate that each State's CSPD include three
specific personnel training components. In the NPRM, we added as an
optional training component in Sec. 303.118(b)(3) the training of
personnel to support families in participating fully in the development
and implementation of the child's IFSP because it was important to
retain this component from current Sec. 303.360(b)(4)(iii). However,
we recognize that the Act identifies only three mandatory components
and believe that States should have the flexibility to identify
appropriate personnel training components of their CSPD. In reviewing
the introduction and paragraph (a) of this section, we have made
additional edits for clarification that are not substantive.
Changes: We have made technical edits to the introductory paragraph
and paragraph (a)(1) of this section to clarify the subject of the
training in the CSPD and to clarify that the items listed in this
paragraph are training requirements.
Comment: None.
Discussion: In the Improving Head Start for School Readiness Act of
2007 (Head Start Act, 42 U.S.C. 9801 et seq.), Congress authorized the
Governor of each State to designate or establish a State Advisory
Council on Early Childhood Education and Care for children from birth
to school entry (referred to as the State Advisory Council). The
overall responsibility of each State Advisory Council on Early
Childhood Education and Care is to lead the development or enhancement
of a high-quality, comprehensive system of early childhood development
and care that ensures statewide coordination and collaboration among
the wide range of early childhood programs and services in the State,
including child care, Head Start, the IDEA programs (including the IDEA
program under part C of the Act, and the preschool program under
section 619 of part B of the Act), and pre-kindergarten programs and
services. Under the Head Start Act, the State Advisory Council is
required to conduct periodic statewide needs assessments on the quality
and availability of programs and services for children from birth to
school entry, identify opportunities for and barriers to coordination
and collaboration among existing Federal and State-funded early
childhood programs, and develop recommendations for a statewide
professional development system and career ladder for early childhood
educators and high-quality State early learning standards.
[[Page 60167]]
Another activity of the State Advisory Council under the Head Start
Act is to assess the capacity and effectiveness of institutions of
higher education in the State to support the development of early
childhood educators. The Department strongly encourages lead agencies
to assist the State Advisory Council in strengthening State-level
coordination and collaboration among the various sectors and settings
of early childhood programs in the State to support professional
development, recruitment, and retention initiatives for early childhood
educators. Regarding personnel standards, nothing would prevent a State
from adopting or recommending more rigorous personnel standards under
part C than those developed or recommended by the State Advisory
Council.
Because this requirement regarding State Advisory Councils on Early
Childhood Education and Care was established after the proposed part C
regulations were published, in final Sec. 303.118 we have added
coordination with these State Advisory Councils as an authorized
activity of the CSPD. This change will not impose an additional burden
on the CSPD because it is an optional duty under Sec. 303.118(b) and
not a required duty under Sec. 303.118(a).
Changes: New Sec. 303.118(b)(4) has been added to allow the CSPD
to include training personnel who provide services under this part,
using standards that are consistent with early learning personnel
development standards funded under the State Advisory Council on Early
Childhood Education and Care established under the Head Start Act, if
applicable.
Personnel Standards (Sec. 303.119)
Comment: Some commenters disagreed with our proposal to remove the
provision in current Sec. 303.361(a)(2), which requires State
education personnel standards to meet the highest requirement for a
profession or discipline. The commenters asserted that the removal of
this provision, while perhaps deemed necessary to alleviate an
immediate personnel shortage crisis and serve children who are
currently eligible, could undermine the quality of early intervention
programs. The commenters expressed concern that not requiring State
education personnel standards to meet the highest requirement for a
profession or discipline will promote a two-tiered system in which
infants and toddlers with disabilities served in natural settings
receive services provided by personnel who are less qualified than
personnel providing services in other settings, such as hospitals and
private clinics. One commenter recommended that the Department revise
this section to require lead agencies to ensure that early intervention
services providers who deliver services in their discipline or
profession have not had certification or licensure requirements waived
on an emergency, temporary, or provisional basis.
Discussion: Section 303.119, which is consistent with section
635(a)(9) of the Act, does not contain the provision in current Sec.
303.361(a)(2), requiring State EIS personnel standards to be based on
the highest State requirement for a profession or discipline, because
this requirement was removed from section 635(a)(9) in the 2004
amendments to the Act.
Section 303.119(b) requires that all qualification standards for
EIS providers under part C of the Act must meet State-approved or
State-recognized certification, licensing, registration, or other
comparable requirements that apply to the profession, discipline, or
area those personnel are providing early intervention services. This
requirement applies equally to EIS providers regardless of the setting
in which they provide part C services.
Concerning the comment requesting that the Department prohibit EIS
providers from providing services if their certification or licensure
requirements are waived on an emergency, temporary, or provisional
basis, nothing in the Act prohibits early intervention service
providers from receiving a waiver or other type of emergency credential
to provide early intervention services so long as the provision of
early intervention services by such providers is consistent with State
law, regulation, or other policy governing certification and licensure.
Under section 635(b) of the Act, 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, 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 previously described.
Changes: None.
Qualification Standards (Sec. 303.119(b))
Comment: One commenter recommended that the Department revise this
section to require that qualification standards be consistent with
professional scope of practice provisions in State practice laws (i.e.,
State statutes that govern the practices of specific professions).
Discussion: Section 303.119 requires the State to establish and
maintain qualification standards that are consistent with State-
approved professional standards. To maintain State flexibility in
updating State qualification standards for part C personnel, we will
continue to require that these standards be consistent with the
requirements of any State-approved or State-recognized certification,
licensing, registration, or other comparable requirements that apply to
the profession, discipline, or area that personnel are providing early
intervention services.
Changes: None.
Use of Paraprofessionals and Assistants (Sec. 303.119(c))
Comment: Two commenters requested that paraprofessionals and
assistants be required to meet the same State licensure requirements as
early intervention service providers and that, in the absence of such a
policy, States not be allowed to create ``State-certified
paraprofessionals'' or ``State-certified'' assistants who might
encroach upon the practice of certified early intervention service
providers. Two other commenters requested that this section clarify
that States must comply with State laws governing the practices of
specific professions and the appropriate supervision of assistants as
well as the professional codes of ethics for the different disciplines.
One commenter requested that this section be revised to require the
supervision of paraprofessionals and assistants. A few commenters
recommended that additional guidance be provided on the definitions of
the terms ``paraprofessional,'' ``assistant,'' and ``supervision,'' and
that the regulations require States to file with the Department their
regulations regarding the scope of work performed by paraprofessionals
and assistants and the supervision provided them.
Discussion: Nothing in the Act requires paraprofessionals and
assistants who assist in the provision of early intervention services
under part C of the Act to meet State licensure requirements for early
intervention service providers. However, consistent with section
635(a)(9) of the Act, Sec. 303.119(c) requires that paraprofessionals
and assistants who assist in the provision of early intervention
services be appropriately trained and supervised in accordance with
State law, regulation, or written policy. We decline to require, in
these regulations, that paraprofessionals and
[[Page 60168]]
assistants providing early intervention services meet State licensure
requirements for EIS providers. We believe that section 635(a)(9) of
the Act and Sec. 303.119(c) are, in conjunction with State law or
policy, sufficiently adequate to ensure that paraprofessionals and
assistants are appropriately trained to assist in the provision of
early intervention services made available under part C of the Act.
Neither the Act nor the regulations prohibit a State from
establishing a State certification for paraprofessionals or assistants
who assist in the provision of early intervention services, so long as
the requirements in Sec. 303.119(c) are met. The Department's position
is that it would not be appropriate to preclude a State from
establishing a State certification for paraprofessionals or assistants
who assist in the provision of early intervention services because
specific certification and licensure requirements are best left to a
State to determine.
For the purposes of part C of the Act, paraprofessionals and
assistants are individuals who assist in the provision of early
intervention services to infants and toddlers with disabilities. We do
not believe it is necessary to define these terms with greater
specificity because defining these terms is best left to individual
States based on their laws, regulations, and written policies. Further,
it is most appropriate for States to develop, if needed, a definition
of supervision. Concerning commenters' requests that States file with
the Department their regulations on paraprofessionals and assistants,
section 634 of the Act requires States to assure but not necessarily
demonstrate their compliance with the requirements in section 635 of
the Act, including section 635(a)(9). Therefore, we decline to include
definitions of these terms or a filing requirement in these
regulations.
Changes: None.
Policy To Address Shortage of Personnel (Sec. 303.119(d))
Comment: One commenter requested that we include definitions of the
terms ``geographic area of the State,'' ``geographic area where there
is a shortage,'' ``good-faith effort,'' and ``most qualified
individuals available'' in this section of the regulations.
Discussion: Section 303.119(d) provides that a State may adopt a
policy to address a shortage of personnel, including efforts to recruit
and hire appropriately and adequately trained personnel in a geographic
area of the State where there is a shortage of personnel. The
Department's position is that the phrases ``geographic area of the
State'' and ``geographic area where there is a shortage,'' as used, in
this section are best left to the State to define.
The Department's position is that the term ``good faith effort''
reflects the common understanding of the term and that States will make
the reasonable efforts necessary to enable the State to recruit, hire,
and retain appropriately and adequately prepared and trained personnel
to provide early intervention services to infants and toddlers with
disabilities. Thus, defining the term in these regulations is not
necessary.
Finally, States can best determine how to define the term ``most
qualified individual available,'' provided that the State's definition
is consistent with the provisions in Sec. 303.119(a) and (b). This
approach gives States the flexibility they need to determine which
individuals would be considered the ``most qualified individual
available'' in light of unique State personnel needs.
Changes: None.
Lead Agency Role in Supervision, Monitoring, Funding, Interagency
Coordination, and Other Responsibilities (Sec. 303.120)
Comment: None.
Discussion: Based on further review of Sec. 303.120, we have
determined it is appropriate to add references to EIS providers in
paragraphs (a)(2)(i) and (d) of this section to clarify that a lead
agency's responsibilities include monitoring EIS providers as well as
agencies, institutions, and organizations used by the State to carry
out part C of the Act and to ensure the timely provision of early
intervention services to infants and toddlers with disabilities and
their families under part C of the Act, pending reimbursement disputes
between public agencies and EIS providers. We also have made Sec.
303.120(a) internally consistent by adding references where needed in
paragraphs (a)(1), (a)(2), and (a)(2)(i) to make clear that the lead
agency's monitoring responsibility extends to ``agencies, institutions,
organizations, and EIS providers'' that are receiving financial
assistance under part C of the Act.
Changes: We have added references to EIS providers in Sec.
303.120(a)(2)(i) and (d) and appropriate references to ``agencies,
institutions, organizations, and EIS providers'' in paragraphs (a)(1),
(a)(2), and (a)(2)(i) of this section.
Comment: One commenter recommended that Sec. 303.120(a)(2)(iv),
regarding the lead agency's monitoring of part C programs, include an
additional provision requiring States to demonstrate ``improvements
that will result in the delivery of quality services to reach
compliance within one year of identification.''
Discussion: To ensure compliance with the requirements in Sec.
303.120(a)(2)(iv), States must demonstrate improvement in the
implementation of their part C programs; under Sec. Sec. 303.700
through 303.702, each lead agency reports in its APR on its improvement
efforts under the SPP. For example, by correcting noncompliance in
accordance with Sec. 303.120(a)(2)(iv) a State might require an EIS
program or EIS provider to revise any noncompliant policies,
procedures, and practices to be consistent with the requirements of
part C of the Act. Additionally, in order to comply with Sec.
303.120(a)(2)(iv), a State might demonstrate improvement through, for
example, follow-up review of data, other appropriate documentation, or
through interviews showing that the noncompliant policies, procedures,
and practices were corrected and are consistent with part C
requirements. Demonstration of improvement is an integral part of Sec.
303.120(a)(2)(iv) and the State's SPP/APR reporting; for this reason,
we decline to make the requested change to Sec. 303.120(a)(2)(iv).
Changes: None.
Comment: One commenter recommended that the regulations expressly
require all EIS providers, including those who do not receive Federal
part C funds from the lead agency, to comply with the requirements of
the Act and these regulations.
Discussion: The changes recommended by the commenter are not
necessary because the Act and the regulations already require, under
section 635(a)(10)(A) of the Act and Sec. 303.120(a)(2), that the lead
agency monitor EIS providers as defined in Sec. 303.12(a), regardless
of whether such EIS providers receive Federal part C funds. Under the
definition of EIS provider in Sec. 303.12(a), the EIS provider must
provide services in compliance with part C of the Act, even if the EIS
provider does not receive Federal part C funds. Therefore, no further
changes are required.
Changes: None.
Comment: A few commenters disagreed with the one-year timeline to
correct noncompliance in Sec. 303.120(a)(2)(iv) because, according to
these commenters, one year is too long and not in the best interests of
children and families. Another commenter recommended, instead, that we
revise Sec. 303.120(a)(2)(iv) to provide that a lead agency have three
years to demonstrate correction of noncompliance.
[[Page 60169]]
One commenter recommended that the Department require in Sec.
303.120(a)(2)(iv) that lead agencies report to the public the
correction of noncompliance in order to ensure that parents and others
are informed of the correction of the noncompliance.
Discussion: Correcting noncompliance as soon as possible but not
later than one year from identification is a critical responsibility of
lead agencies and it is the Department's position that one year, and
not three years--as one commenter suggested--is a reasonable timeframe
for an EIS provider to correct noncompliance identified by the lead
agency and for the lead agency to verify that the EIS provider is
complying with part C of the Act and its implementing regulations.
The Department's position is that a shorter timeframe (e.g., 90
days from identification) is not appropriate because, in many cases, it
would not provide sufficient time to correct noncompliance. For
example, a lead agency may determine that an EIS provider is not in
compliance with requirements relating to making decisions about the
settings where infants or toddlers with disabilities receive early
intervention services. To take corrective action and verify the
correction in a case such as this would likely take more than 90 days.
Therefore, we continue to believe that an outside timeframe of one year
will provide lead agencies adequate time to correct noncompliance
identified through monitoring while at the same time ensuring that lead
agencies timely correct noncompliance.
Concerning commenters' requests to have lead agencies publicly
report on timely correction, subpart H of these regulations identifies
the specific reporting requirements, including timelines for reporting
the correction of noncompliance. Pursuant to Sec. 303.702(b)(1)(i)(A),
a lead agency is required to report annually to the public on the
performance of each EIS program on the targets in the SPP.
Additionally, every State is required to report on the timely
correction of noncompliance in its APR. We decline to add a reporting
requirement to Sec. 303.120(a)(2)(iv) because the SPP/APR reporting
requirements regarding timely correction of noncompliance are adequate
to ensure that the public and the Department are informed about a lead
agency's performance in correcting noncompliance under Sec.
303.120(a)(2).
Changes: None.
Data Collection (Sec. 303.124)
Comment: One commenter opposed the requirement in Sec. 303.124(b)
that statewide data systems include a description of the State's
sampling methods, if sampling is used, for reporting certain data
required by the Secretary. The commenter opposed this requirement
stating that sampling is not supported by the Act.
Discussion: We disagree with the commenter that sampling is not
supported by the Act. Section 635(a)(14) of the Act provides that the
part C statewide system include a system for compiling data requested
by the Secretary under section 618 of the Act that relates to part C of
the Act, and section 618(b)(2) of the Act specifically states that the
Secretary may permit States and the Secretary of the Interior to obtain
data through sampling.
Changes: None.
State Interagency Coordinating Council (Sec. 303.125)
Comment: One commenter recommended that this section require the
establishment and maintenance of a Federal interagency coordinating
council that also meets the requirements of subpart G of these
regulations.
Discussion: The 2004 amendments to the Act eliminated the authority
for a Federal interagency coordinating council. Therefore, it would be
inconsistent with the Act and the intent of Congress to require the
establishment and maintenance of a Federal interagency coordinating
council. Changes: None.
Early Intervention Services in Natural Environments (Sec. 303.126)
Comment: A few commenters requested that Sec. 303.126, regarding
the provision of early intervention services in the natural
environment, include the phrase ``necessary to meet the unique needs of
the infant or toddler with a disability and the family'' when referring
to early intervention services.
Discussion: Section 303.126 cross-references Sec. 303.344(d)(1),
which requires the child's IFSP to include a statement of the specific
early intervention services that are necessary to meet the unique needs
of the child and the family to achieve the measurable results or
outcomes identified in the IFSP. Section 303.344(d)(1) requires that
early intervention services be individualized according to the child's
needs. Therefore, it is not necessary to repeat this requirement in
Sec. 303.126 in connection with a statewide system that includes
policies and procedures to ensure that early intervention service
settings, to the maximum extent appropriate, are provided in natural
environments.
Changes: None.
Comment: Many commenters stated that the language in Sec.
303.126(b) should incorporate the language in section 635(a)(16) of the
Act and requested that the phrase ``provided satisfactorily'' be
replaced with the statutory phrase ``achieved satisfactorily.''
Discussion: Our use of the phrase ``provided satisfactorily'' in
proposed Sec. 303.126(b) was not intended to be a substantive change
from section 635(a)(16) of the Act or current practice. We agree that
the language in this section should incorporate the language in section
635(a)(16) of the Act.
Changes: We have replaced the word ``provided'' in Sec. 303.126(b)
with the word ``achieved.''
Comment: Several commenters requested that Sec. 303.126(b) be
reworded to clarify that parents are members of the IFSP Team.
Discussion: It is certainly true that, under section 636(a)(3) of
the Act and Sec. 303.343(a)(1)(i) of these regulations, parents are
required members of a child's IFSP Team. However, we decline to make
the requested change because Sec. 303.126(b), which is taken directly
from section 635(a)(16)(b) of the Act, underscores the important role
parents have in deciding, together with the rest of the members of the
IFSP Team, whether early intervention services will be provided in
settings other than the child's natural environment. Given that other
provisions in the regulations and the Act make clear that the child's
parents are required members of a child's IFSP Team, we do not believe
it is necessary to revise Sec. 303.126(b) as requested by the
commenters.
Changes: None.
Subpart C--State Application and Assurances
General
Comment: A few commenters requested clarification about State
application requirements regarding how States ensure the coordination
of all available resources and whether interagency agreements, State
laws or regulations, or other methods were required.
Discussion: Each State must have policies and procedures to ensure
the coordination of all available resources in the State and to
implement the payor of last resort requirements in Sec. 303.511.
Section 303.511(b) requires the State to use one or more of the
following methods to implement part C's payor of
[[Page 60170]]
last resort requirements: State law or regulation, interagency
agreements, or other appropriate written methods that are approved by
the Secretary.
We have added a new Sec. 303.203(b)(2) to clarify that the State
must include in its application, those methods used by the State to
implement the payor of last resort requirements in Sec. 303.511(b)(2)
and (b)(3), such as interagency agreements and other appropriate
written methods. We require submission of the methods referenced in
Sec. 303.511(b)(2) and (b)(3) in the State's application because these
methods must be approved by the Secretary before implementation.
Changes: We added in new Sec. 303.203(b)(2), regarding State
application requirements, that States must submit ``methods used by the
State to implement the requirements in Sec. 303.511(b)(2) and
(b)(3).''
Comment: Some commenters requested that the Department define
``rigorous'' as that term is used in the phrase ``rigorous definition
of developmental delay'' in Sec. 303.203(c). One commenter expressed
concern that some State definitions of developmental delay exclude
infants and toddlers with mild developmental delays from part C
eligibility. The commenter requested that the Department clarify that a
State's definition of developmental delay should include mild
developmental delays.
Discussion: Within each State, eligibility for part C services
turns, in part, on how the State defines developmental delay. We
interpret the term ``rigorous'' in the phrase ``rigorous definition of
developmental delay'' in Sec. 303.203(c) to mean that the State has
obtained public input on its definition pursuant to Sec. 303.208
(because the definition constitutes a State policy), and that its
definition meets the requirements in Sec. 303.111(a) and (b).
Under Sec. 303.111(a) and (b), the State's definition of
developmental delay must include: (1) A description of the evaluation
and assessment procedures that will be used, consistent with Sec.
303.321, to measure a child's development; and (2) a description of the
specific level of developmental 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). Under Sec.
303.208, the State must receive, and respond to, public comments
(including comments from parents, EIS providers, members of the Council
and other stakeholders) and conduct public hearings on its definition
of developmental delay.
Requiring public scrutiny of the definition of developmental delay
in each State before the State adopts it helps ensure that the
definition ultimately adopted by the State is appropriate for that
State. As noted in the preamble discussion for Sec. 303.111 of subpart
B of these regulations, a State is not required to change its
definition of developmental delay in order for it to be ``rigorous''
provided that the definition (regardless of the level of developmental
delay it covers) meets the requirements in Sec. 303.111(a) and (b) and
met the public participation requirements in Sec. 303.208(b) since the
Act was amended in December 2004.
Given that section 635(a)(1) of the Act provides each State with
the flexibility to define the term developmental delay, as it is used
in the State's part C program, the requirements in Sec. Sec. 303.111
and 303.208 address the public's desire to ensure appropriate
identification of all infants and toddlers with disabilities while
providing each State the continued flexibility to develop its
definition.
Changes: None.
Application's Definition of At-Risk Infants and Toddlers and
Description of Services (Sec. 303.204)
Comment: One commenter supported the requirements of this section
and the definition of the term at-risk infant or toddler in Sec.
303.5, but expressed concern that serving at-risk infants and toddlers
would be an additional fiscal burden on States.
Discussion: Serving at-risk infants or toddlers is a State option
under section 632(5)(B)(i) of the Act. Section 303.204 incorporates the
requirement from section 637(a)(4) of the Act that the State describe
the services to be provided to at-risk infants and toddlers through the
part C statewide system only if the State chooses to make ``at-risk
infants and toddlers'' eligible for part C services in the State.
If a State elects to provide services to at-risk infants and
toddlers with disabilities, the State must include the definition of
at-risk infants and toddlers with disabilities in its application. A
State also must include in its application a description of the early
intervention services to be provided to at-risk infants and toddlers
with disabilities. Section 303.204 does not require a State to provide
services to at-risk infants and toddlers; therefore, these requirements
and the financial responsibilities associated with their implementation
are applicable only to those States that choose to include ``at-risk
infants and toddlers'' in their definition of infant or toddler with a
disability under Sec. 303.21(b).
Changes: None.
Comment: One commenter recommended adding language in Sec.
303.204(a) to encourage States to examine closely the percentage of
premature infants who eventually receive part C services and to use
this information to develop presumptive eligibility criteria for at-
risk infants and toddlers to receive part C services.
Discussion: The Act does not require States to develop presumptive
eligibility criteria for at-risk infants and toddlers. Sections 632(1),
632(5)(B)(i), and 637(a)(4) of the Act provide States with the option
to make at-risk infants and toddlers eligible under part C of the Act,
and further to determine the part C services that will be made
available to these children. This flexibility enables each State to
determine the eligibility criteria for at-risk infants and toddlers
that are most appropriate in the State. Examining data on premature
infants who eventually receive part C services is one method a State
could use to help determine its eligibility criteria for at-risk
infants or toddlers, but there are other methods that might be more
appropriate for other States. For example, a State with a large number
of homeless infants and toddlers who have high rates of developmental
delay could determine that such children should be presumptively
included in its definition of at-risk infants and toddlers.
Therefore, while a State could certainly use data on premature
infants who eventually receive part C services to inform its decision
on the eligibility criteria the State will use for at-risk infants or
toddlers, it is not appropriate to require all States to do so.
Changes: None.
Availability of Resources (Sec. 303.207)
Comment: A few commenters recommended replacing the word
``resources'' in Sec. 303.207 with the term ``services'' because the
term ``resources'' is not defined in the regulations or the Act.
Discussion: Section 303.207 incorporates the language (including
the term ``resources'') from section 637(a)(7) of the Act. We decline
to make the requested change because we interpret the term
``resources,'' as used in section 637(a)(7) of the Act and Sec.
303.207, to be broader than the term ``services.'' We interpret
``resources'' to include not only services but also funding, personnel,
and other materials. This regulatory provision ensures that resources--
not just services--are available in all geographic areas within a
State.
[[Page 60171]]
Changes: None.
Public Participation Policies and Procedures (Sec. 303.208)
Comment: Commenters requested that the Department clarify when the
public participation requirements in Sec. 303.208 apply. Some
commenters requested that the public participation requirements in
current Sec. 303.110(a)(1), including a 30-day comment period, be
retained. A number of commenters, including parents of infants and
toddlers with disabilities, service providers, and national disability
rights organizations, requested that the 30-day timeline for notice of
public hearings from current Sec. 303.110(a)(3) be retained in Sec.
303.208 to ensure meaningful public participation at public hearings.
These commenters stated that the phrase ``adequate notice'' as used in
proposed Sec. 303.208(a)(1) is too vague.
A few commenters opposed the public participation requirements in
proposed Sec. 303.208. One commenter suggested that States use their
State Administrative Procedure Act (APA) procedures instead of the
procedures in Sec. 303.208. Another commenter stated that the State's
part C application should not be subject to any public participation
requirements if the application does not include policies or procedures
that affect direct services to eligible infants and toddlers and their
families. Another commenter stated that it would be too burdensome to
require public hearings when States amend their policies and
procedures.
Finally, a few other commenters recommended that the public
participation requirements expressly identify foster parents and other
caregivers of infants and toddlers with disabilities as stakeholders in
the public participation process.
Discussion: The purpose of Sec. 303.208 is to require each State
to engage the public in the development of its part C application and
to include, in its application, information on its public participation
policies and procedures. Section 303.208 is based, in part, on section
637(a)(8) of the Act, which requires each State's application to
include a description of State policies and procedures that ensure
that, prior to the adoption by the State of any other policy or
procedure necessary to meet the requirements of part C of the Act,
there are public hearings, adequate notice of the hearings, and an
opportunity for comment available to the general public, including
individuals with disabilities and parents of infants and toddlers with
disabilities.
We have restructured this section in response to comments
requesting clarification on the applicability of the public
participation requirements. As restructured, paragraph (a) of this
section describes the applicability of the public participation
requirements to the part C application itself. Section 303.208(b)
describes the applicability of the public participation requirements to
any new policy or procedure (including any revision to an existing
policy or procedure) needed to comply with part C of the Act and these
regulations.
The requirements in Sec. 303.208(a) that States publish their part
C applications for 60 days and obtain public comments during a 30-day
period within that 60-day period are consistent with the requirements
in current Sec. 303.110(a)(1) and section 441 of the General Education
Provisions Act (GEPA) (20 U.S.C. 1232d(b)(7)(B)). Under Sec.
303.208(b), a State is required to conduct public hearings when the
State is adopting or revising a policy or procedure that is necessary
to meet the requirements of part C of the Act and these regulations.
This public hearing requirement is intended to ensure that States
obtain, consistent with section 637(a)(8) and (b)(7) of the Act,
meaningful involvement from the public (including underrepresented
populations) on the State's policies and procedures necessary to carry
out the requirements of part C of the Act prior to implementing those
policies and procedures.
Restructuring Sec. 303.208 in this manner addresses requests by
commenters to retain language from current Sec. Sec. 303.110(a)(1) and
(a)(3). Specifically, Sec. 303.208(a) ensures that the public has at
least 30 days to comment on a State's part C application before the
State submits the application to the Department. Additionally, we agree
with commenters that specifying a minimum timeline for notice of public
hearings is preferable to simply requiring that States provide
``adequate notice'' of the hearings. It is the Department's position
that 30 days prior notice is the minimum notice needed to ensure
meaningful public participation at public hearings. For this reason, in
Sec. 303.208(b)(2), we have added the requirement from current Sec.
303.110(a) that States must provide notice of public hearings at least
30 days prior to the hearing. Regarding the comments opposing the
public participation requirements in Sec. 303.208, we appreciate the
concern about the potential burden these requirements place on States
and lead agencies; however, we strongly believe that the benefits of
public input outweigh any potential burden because States have
flexibility under part C of the Act in many areas (e.g., developing
their definition of developmental delay, serving at-risk infants and
toddlers, serving children beyond age three, using part B or C due
process procedures, and system of payments), and the part C policies
and procedures in these and other areas affect the fundamental rights
of infants and toddlers with disabilities and their families. For this
reason, it is critical that the public have an opportunity to weigh in
on a State's policies and procedures, regardless of whether they are
new or revised or if they involve direct part C services.
In response to the comment recommending that States be permitted to
use their State APA procedures to ensure public participation in
connection with part C policies and procedures, we decline to make any
changes to Sec. 303.208. State APA procedures vary from State to
State, and because the Department views meaningful public participation
as critical for the part C program, it is appropriate to establish in
Sec. 303.208 the minimum steps States must take to ensure meaningful
public participation. This will ensure that all States participating in
the part C program have procedures that are consistent at least with
the requirements in Sec. 303.208.
Finally, when referring to the ``general public,'' Sec. 303.208
specifically lists ``parents of infants and toddlers with
disabilities.'' The definition of the term parent, as used in these
regulations, includes foster parents, guardians authorized to act as a
child's parent, caregivers who are individuals acting in the place of a
biological parent with whom the child is living, or surrogate parents
who have been appointed in accordance with Sec. 303.422. Therefore,
adding a reference to foster parents and caregivers in this section is
not necessary.
Changes: We have restructured Sec. 303.208 to clarify the
applicability of the public participation requirements to (a) the
State's part C application, and (b) the State's policies and procedures
(including any revision to an existing policy or procedure) that are
necessary to comply with part C of the Act.
Finally, as described in the discussion of new Sec. 303.101(c)
earlier in this preamble, we have moved the requirement that States
obtain approval by the Secretary before implementing any policy,
procedure, method, or budget information that is required in Sec. Sec.
303.200 through 303.212 to be submitted as part of the States'
application. This requirement was reflected in proposed Sec.
303.208(b). We did deviate from the language in proposed Sec.
303.208(b) by referring to
[[Page 60172]]
policies, procedures, methods and budget information required in
Sec. Sec. 303.203, 303.204, 303.206, 303.207, 303.208, 303.209, and
303.211--rather than those required in Sec. Sec. 303.200 through
303.212, more generally.
Comment: A few commenters recommended that the Department add the
word ``shall'' to the end of Sec. 303.208(a)(2).
Discussion: As noted elsewhere in this discussion, we have
restructured Sec. 303.208 to clarify the entire section. Given the
revisions made to this section, the commenters' requested change is no
longer applicable.
Changes: None.
Comment: One commenter expressed concern that requiring States to
seek approval of the Secretary before implementing policies,
procedures, and methods that are subject to the public participation
requirements in proposed Sec. 303.208(b) (new Sec. 303.101(c)) will
impede a State's ability to respond in a timely way to the local needs
of eligible children, families, and early intervention programs.
Discussion: Section 637(a) of the Act requires each State that
seeks part C funding to submit an application to the Secretary for
approval. This section of the Act also describes the information that
must be included in the State application. Pursuant to section
637(a)(3)(A) of the Act, each State must submit as part of its
application ``information demonstrating to the Secretary's satisfaction
that the State has in effect the statewide system required by section
633'' of the Act.
Pursuant to section 637(a)(3)(A) of the Act, we continue to require
each State to submit in its application the policies, procedures,
methods and budgetary and other information required in Sec. Sec.
303.201 through 303.212, though, for the sake of clarity, we list the
specific regulatory sections (i.e., Sec. Sec. 303.203, 303.204,
303.206, 303.207, 303.208, 303.209, and 303.211). This requirement
ensures that a State's application includes, for example, its policies
regarding its system of payments (i.e., financial sources such as
insurance or family fees to pay for part C services) and its definition
of developmental delay. These policies and procedures, among others
required in Sec. Sec. 303.203, 303.204, 303.206, 303.207, 303.208,
303.209, and 303.211, are critical to understanding a State's
implementation of part C of the Act, such as the individuals whom the
State is serving and the funding sources used to pay for the provision
of early intervention services.
We have retained in Sec. 303.101(c) the long-standing Departmental
policy of requiring a State to obtain approval of policies and
procedures that must be submitted to the Secretary prior to
implementation. The purpose of the Secretary's review is to ensure that
State policies and procedures are consistent with the Act, thereby
ensuring that the rights of infants and toddlers with disabilities and
their families are protected and the responsibilities of lead agencies,
EIS providers, and parents are explicitly defined.
Changes: None.
Transition to Preschool and Other Programs (Sec. 303.209)
Application Requirements (Sec. 303.209(a))
Comment: None.
Discussion: Upon further review of Sec. 303.209, we determined
that it would be helpful to clarify that the transition requirements in
Sec. 303.209 apply to all toddlers with disabilities before those
toddlers turn three years old, including those toddlers with
disabilities served by States that elect to provide services pursuant
to Sec. 303.211.
To distinguish the transition requirements in Sec. 303.211(b)(6),
which apply to toddlers receiving services under the part C extension
option in Sec. 303.211, who by definition are age three or older, we
have revised Sec. 303.209(a) to state that the transition policies and
procedures it must describe relate to the transition of infants and
toddlers with disabilities under the age of three and their families.
As further discussed elsewhere in this Analysis of Comments and Changes
section, we have made corresponding changes to Sec. 303.211 to clarify
that the transition requirements in Sec. 303.209 apply to all infants
and toddlers under the age of three who are transitioning from the part
C program (as described in Sec. 303.211(b)(6)(i)) and that the
transition requirements described in Sec. 303.211(b)(6)(ii) apply to
children age three and older who are transitioning from services
provided pursuant to Sec. 303.211.
Changes: We have deleted in new Sec. 303.209(a)(1) (proposed Sec.
303.209(a)(1)(i)) the parenthetical ``(including toddlers receiving
services under Sec. 303.211).'' We also have revised Sec.
303.209(a)(1) to clarify that each State must describe in its
application, the policies and procedures it will use to ensure a smooth
transition for infants and toddlers with disabilities under the age of
three and their families from receiving early intervention services to
(i) preschool or other appropriate services (for toddlers with
disabilities) or (ii) exiting the program (for infants and toddlers
with disabilities). We have addressed separately in new Sec.
303.211(b)(6)(ii) the substance of proposed Sec. 303.209(b)(2)(i) and
(b)(2)(ii) regarding transition from services under Sec. 303.211.
Comment: Some commenters opposed Sec. 303.209(a)(3)(i)(B), which
requires a State whose lead agency is the SEA to include in its
application an intra-agency agreement between the program within the
SEA that administers part C of the Act and the program within the SEA
that administers section 619 of the Act. These commenters stated that
requiring two programs within one SEA to have an agreement with each
other is unnecessary and would create an undue paperwork burden. A few
other commenters expressed concern that the requirement would be
particularly burdensome for States with seamless ``Birth to Five''
programs.
Discussion: Section 303.209(a)(3)(i) requires all States, including
those in which the SEA is the lead agency, to establish an interagency
or an intra-agency agreement between the early intervention program
under part C of the Act and the preschool program under section 619 of
part B of the Act. We included the requirement for intra-agency
agreements because, through the Continuous Improvement Focused
Monitoring System (CIFMS) process and State reporting under the SPP/
APRs, the Department has identified noncompliance with transition
requirements under both part C of the Act (e.g., noncompliance with
section 637(a)(9) of the Act, regarding notification of the LEA and
conducting transition conferences, and, with sections 636(a)(3) and
(d)(8) and 637(a)(9) of the Act, regarding the transition steps and
services in the IFSP) and part B of the Act (e.g., noncompliance with
section 612(a)(9) of the Act, regarding development and implementation
of an IEP by a child's third birthday). Given this noncompliance and
the need for States to have clearly defined transition coordination
policies and procedures between the early intervention program under
part C of the Act and the preschool program under part B of the Act,
requiring an intra-agency agreement will be a useful tool to enhance
coordination and communication between the part C and part B preschool
programs.
Developing interagency or intra-agency agreements should not be a
significant burden for States because approximately two-thirds of lead
agencies already have interagency agreements and the remaining third,
where the lead agency is also the SEA, currently are required to have
transition policies and procedures that address the
[[Page 60173]]
transition of toddlers from early intervention to preschool services
under parts B and C of the Act. For lead agencies that are also SEAs,
the Department's position is that the benefits associated with
requiring intra-agency agreements pursuant to Sec. 303.209(a)(3)(i)(B)
outweigh the minimal burden associated with this requirement. An intra-
agency agreement serves the useful purpose of ensuring that there is an
appropriate level of coordination and communication across the early
intervention and preschool programs in a lead agency that is also an
SEA. The burden of developing this agreement is minimal because the
requirement does not involve the development of new transition policies
and procedures--these policies and procedures are already required
pursuant to Sec. 303.209(a). Moreover, the Council often serves to
advise the lead agency when it develops these agreements; in fact, the
Council is specifically required under section 641(e)(1)(C) of the Act
to advise and assist the SEA (which in this case would be the lead
agency) regarding the transition of toddlers with disabilities to
preschool and other appropriate services.
There are only a few States that have adopted ``Birth to Five''
programs (i.e., programs in which the SEA and LEA provide both
preschool services under part B of the Act and early intervention
services under part C of the Act to children from ages birth to five).
In these States, the same State and local agencies administer part C of
the Act and section 619 of the Act. Therefore, States with these
programs must include one or more intra-agency agreements to satisfy
the requirement in Sec. 303.209(a)(3)(i)(B). As stated in the
preceding two paragraphs, the benefits associated with intra-agency
agreements pursuant to Sec. 303.209(a)(3)(i)(B) outweigh the minimal
burden associated with the requirement.
Changes: None.
Comment: None.
Discussion: Based on further review of Sec. 303.209(a)(3)(ii), we
have determined that additional clarification is needed with regard to
the required transition-related content of the interagency and intra-
agency agreements under Sec. 303.209(a)(3)(i). To clarify that these
agreements must address how the lead agency and the SEA will meet the
confidentiality requirements in Sec. 303.401(d) and (e), we have added
specific references to those provisions in Sec. 303.209(a)(3)(ii).
Additionally, we have specified that the agreements required pursuant
to Sec. 303.209(a)(3)(i) must address how the agency and the SEA will
meet, for all children transitioning from part C services to part B
services, the requirements in 34 CFR 300.101(b)--that is, how the lead
agency and the SEA will ensure that FAPE is made available to each
eligible child residing in the State no later than the child's third
birthday.
Changes: We have added the words ``including any policies adopted
by the lead agency under Sec. 303.401(d) and (e)'' as well as a
reference to 34 CFR 300.101(b) to Sec. 303.209(a)(3)(ii).
Notification to the SEA and Appropriate LEA (Sec. 303.209(b))
Comment: None.
Discussion: Upon further consideration of this section of the
regulations, we have determined that the requirement in proposed Sec.
303.209(b)(1) that each family member of a toddler with a disability
receiving part C services be included in the development of the
transition plan is better addressed under the transition plan
requirements in Sec. 303.209(d) and not with the SEA and LEA
notification requirements in Sec. 303.209(b). This change does not
reflect a substantive change to the regulations.
Changes: We moved the text from proposed Sec. 303.209(b)(1) to new
Sec. 303.209(d)(1)(ii).
Comment: Some commenters supported the requirement, reflected in
new Sec. 303.209(b)(1)(i) (proposed Sec. 303.209(b)(2)), that the
lead agency notify the LEA, at least nine months before the third
birthday of a toddler who resides in the area served by the LEA, that
the toddler will reach the age of eligibility for preschool services
under part B of the Act. Other commenters opposed this nine-month
timeline stating that it would be an undue burden and inconsistent with
the Act. Several of these commenters recommended alternative timelines
(i.e., timelines ranging from 10 days to 3 or 6 months before a child's
third birthday). One commenter recommended aligning the timeline
requirement for LEA notification in new Sec. 303.209(b)(1)(i)
(proposed Sec. 303.209(b)(2)(i)) with the 90-day timeline for
transition plans in Sec. 303.209(d)(2).
Discussion: Establishing a timeline within which a lead agency must
notify the appropriate LEA that a child is about to transition from
part C services and may be eligible for services under part B of the
Act is challenging. The timeline must allow sufficient time for both
the lead agency to fulfill its transition responsibilities under
sections 636(a)(3) and (d)(8) and 637(a)(9) of the Act and the SEA and
LEA to meet their respective child find and early childhood transition
responsibilities under sections 612(a)(3), 612(a)(9),
612(a)(10)(A)(ii), and 614(d)(2)(B) of the Act and 34 CFR 300.124.
For the reasons outlined in the following paragraphs, we agree with
the commenter who recommended aligning the LEA notification requirement
with the 90-day timeline for transition plans in Sec. 303.209(d)(2).
We have revised new Sec. 303.209(b)(1)(i) (proposed Sec.
303.209(b)(2)(i)) to require that LEA notification occur no fewer than
90 days prior to the toddler with a disability's third birthday. This
``not fewer than 90 days'' timeline for LEA notification aligns with
the date by which: (1) A transition conference must be conducted for a
toddler with a disability who may be eligible for services under part B
of the Act (as required in section 637(a)(9)(A)(ii)(II) of the Act and
Sec. 303.209(c)(1)); and (2) a transition plan must be in place for
all toddlers with disabilities (as required in Sec. 303.209(d)(2)).
We also are making this change in order to provide SEAs and LEAs
with enough time to carry out their responsibilities in implementing
part B of the Act. These responsibilities include, under section
612(a)(9) of the Act and 34 CFR 300.124(c) of the part B regulations,
participation by a representative from the LEA where the toddler with a
disability resides in the transition conference that the lead agency is
required to conduct under section 637(a)(9)(A)(ii)(II) of the Act and
Sec. 303.209(c)(1). In addition, when the LEA receives notice from the
lead agency or an EIS provider that a specific toddler with a
disability who has been receiving services under part C of the Act is
potentially eligible for services under part B of the Act, the LEA must
treat this as a referral and provide parents with the procedural
safeguards notice under 34 CFR 300.504(a)(1) and determine if an
evaluation for eligibility must be conducted under part B of the Act.
Further, if the parent consents to the initial evaluation under
part B of the Act, the LEA must conduct the evaluation within 60 days
of receiving parental consent or pursuant to a State-established
timeline as required in section 614(a)(1)(C) of the Act and 34 CFR
300.301(c)(1) of the part B regulations. If the child is determined
eligible under part B of the Act, the LEA must conduct, pursuant to 34
CFR 300.323(c)(1) of the part B regulations, a meeting to develop an
IEP for the child with a disability within 30 days of
[[Page 60174]]
the eligibility determination. For toddlers with disabilities who are
referred from the part C program to the part B program, this 60-day
evaluation timeline (reflected in 34 CFR 300.301(c)(1) of the part B
regulations) and the 30-day IEP meeting timeline (reflected in 34 CFR
300.323(c)(1) of the part B regulations) are subject to the requirement
in section 612(a)(9) and 34 CFR 300.101(b) and 300.124(b) of the part B
regulations that the SEA and LEA ensure that, for a child who
transitions from services under part C of the Act to part B of the Act,
an IEP is developed and implemented for the child by the time the child
reaches age three. Thus, the 90-day period prior to the toddler's third
birthday is the minimal time period necessary for an LEA to meet its
responsibilities to ensure that an IEP is developed and implemented by
the child's third birthday.
We recognize that some States may have a State-established timeline
for conducting an evaluation under part B of the Act that is different
than the 60-day timeline in 34 CFR 300.301(c)(1). Even if a State
adopts a longer part B evaluation timeline under 34 CFR 300.301(c)(1)
of the part B regulations, each SEA and LEA must ensure that an IEP is
developed and implemented for a toddler with a disability transitioning
from part C to part B of the Act by the time the toddler reaches age
three. This requirement is reflected in section 612(a)(9) of the Act
and 34 CFR 300.101(b) and 300.124(b) of the part B regulations. Thus,
it is the Department's position that the 90-day notification timeline
provides the minimum amount of time necessary for an SEA and LEA to
meet their respective early childhood transition responsibilities under
part B of the Act.
Finally, in reviewing Sec. 303.209, we have determined that it is
not appropriate to refer to ``other services'' under part B of the Act
because this section addresses only the transition that must occur
before an infant or toddler with a disability turns three years old.
References to other services, such as elementary school, are now more
appropriately addressed in Sec. 303.211(b)(6) regarding the transition
requirements of children who are three and older and receiving services
under Sec. 303.211.
Changes: We have revised new Sec. 303.209(b)(1)(i) (proposed Sec.
303.209(b)(2)(i)) to require the lead agency to notify the SEA and the
LEA for the area in which the toddler resides ``not fewer than 90
days'' before the third birthday of the toddler with a disability if
that toddler may be eligible for preschool services under part B of the
Act.
Comment: A few commenters recommended that we clarify that the lead
agency must notify the LEA under Sec. 303.209(b) only for those
children who are potentially eligible for services under part B of the
Act.
Discussion: We agree and have revised Sec. 303.209(b) to clarify
that the LEA notification requirement applies only to toddlers with
disabilities who may be eligible for preschool services under part B of
the Act and not to all toddlers with disabilities.
The part C lead agency establishes the State's policy regarding
which children may be eligible for preschool services under part B of
the Act. In establishing this policy, the lead agency should review
carefully, ideally in collaboration with the SEA, the eligibility
definitions under parts B and C of the Act, including the State's
definitions of developmental delay under both parts B and C of the Act.
The determination of whether a toddler with a disability is
``potentially eligible'' for services under part B of the Act is
critical under both parts C and B of the Act. It is the first step in
ensuring a smooth transition for that toddler and family to services
under part B of the Act. When the LEA receives notice from the lead
agency or an EIS provider that a specific toddler with a disability who
has been receiving services under part C of the Act may be eligible for
services under part B of the Act, the LEA must treat this as a referral
and provide parents with the procedural safeguards notice under 34 CFR
300.504(a)(1) and determine if an evaluation for eligibility must be
conducted under part B of the Act.
There are several reasons for limiting LEA notification to children
who may be eligible for preschool services under part B of the Act.
First, the limitation is consistent with section 637(a)(9)(A)(ii)(II)
of the Act, which requires that, with the approval of the family of the
child, the lead agency convene a transition conference among the lead
agency, the family, and the LEA representative only for those children
potentially eligible for preschool services under part B of the Act.
Second, limiting LEA notification to cover only toddlers
potentially eligible for preschool services under part B of the Act is
critical to ensuring that the SEA and LEA where the toddler resides
have adequate time to meet their respective child find and early
childhood transition responsibilities under sections 612(a)(3),
612(a)(9), 612(a)(10)(A)(ii), and 614(d)(2)(B) of part B of the Act,
and in particular to develop and implement an IEP by the child's third
birthday as required by section 612(a)(9) of the Act and 34 CFR
300.124(b). These provisions require that children who participate in
the early intervention programs under part C of the Act and children
who will participate in the preschool services under part B of the Act
experience a smooth and effective transition to those preschool
programs in a manner consistent with section 637(a)(9) of the Act.
Third, LEA notification should not be required for toddlers with
disabilities who are not potentially eligible for part B services under
the Act given that the lead agency has other responsibilities for these
children, which we believe are sufficient to meet their transition
needs. For these children, the lead agency must: (1) Ensure that a
transition plan is developed pursuant to section 637(a)(9)(C) of the
Act and Sec. 303.209(d); and (2) make reasonable efforts, pursuant to
section 637(a)(9)(A)(ii)(III) of the Act and Sec. 303.209(c)(2), to
convene a transition conference with the family of the toddler and
providers of other appropriate services. The transition plan for
toddlers with disabilities who are not potentially eligible for part B
services under the Act must identify the appropriate steps for the
toddler with disabilities and his or her family to exit from the part C
program, include services, such as Head Start, that the IFSP team
identifies as needed by that toddler and his or her family.
Finally, we are clarifying that the LEA notification requirement in
Sec. 303.209(b)(1)(i) only applies to toddlers who may be eligible for
part B services because, if the requirement applied to all toddlers who
are nearing age three, it would result in the unnecessary disclosure of
personally identifiable information and place an undue burden on lead
agencies, without any significant benefit. Ordinarily, to meet the LEA
notification requirement, the lead agency must inform the LEA where the
child resides and provide the LEA with the information referenced in
Sec. 303.401(d)(1) (i.e., the child's name, date of birth, and parent
contact information, including the parents' names, addresses, and
telephone numbers), unless the State has adopted an opt-out policy
under Sec. 303.401(e). Requiring the lead agency to disclose this
personally identifiable information for limited child find purposes to
the LEA or even the SEA for children who are not potentially eligible
for part B would be unnecessary and burdensome.
Changes: We have revised new Sec. 303.209(b) (proposed Sec.
303.209(b)(2)(i)
[[Page 60175]]
and (b)(2)(ii)) to clarify that a lead agency must notify the LEA under
Sec. 303.209(b) only for those children who may be eligible for
services under part B of the Act.
Comment: Some commenters recommended that the LEA notification
requirement in new Sec. 303.209(b)(1)(i) (proposed Sec.
303.209(b)(2)) apply to both the SEA and the LEA where the child
resides.
Discussion: We have revised the LEA notification requirement in
Sec. 303.209(b)(1)(i) to require that the lead agency notify the SEA
in addition to the LEA where the child resides. This change is intended
to help lead agencies and SEAs coordinate to ensure a smooth and
effective early childhood transition pursuant to sections 612(a)(9) and
637(a)(9)(A) of the Act. Moreover, this change will assist SEAs in
carrying out their responsibilities under part B of the Act. For
example, under section 612(a)(9) of the Act and 34 CFR 300.101(b) and
300.124(b) of the part B regulations, an SEA must ensure that FAPE is
made available to an eligible child with a disability no later than
that child's third birthday for all toddlers with disabilities who were
referred for part B services by the lead agency and are eligible for
services under part B of the Act. Also, an SEA must report annually in
its SPP/APR on the percent of children referred by the part C program
prior to the age of three who are found eligible for part B services
and have an IEP developed and implemented by the third birthday.
Requiring lead agencies to notify SEAs when a child may be eligible for
part C services will help SEAs fulfill this obligation. Providing this
information to SEAs will add very little burden to lead agencies
because they are already required to provide the information to LEAs.
Changes: We have revised new Sec. 303.209(b)(1)(i) through
(b)(1)(iii) (proposed Sec. 303.209(b)(1) and (b)(2)) to specify that
the lead agency must notify the SEA and the LEA where the child resides
in the case of a toddler who may be eligible for preschool services
under part B of the Act.
Comment: A few commenters requested clarification in Sec. 303.209
of the lead agency's transition responsibilities when a child is
referred ``late'' to the part C program (i.e., less than 45 or 90 days
prior to the child's third birthday). A few commenters expressed
concern that the reference to a child's ``third birthday'' in the LEA
notification provision in proposed Sec. 303.209(b)(2)(i) may interfere
with State-established transition policies and may disrupt many
existing options that have been carefully crafted by States and local
communities to ensure seamless transitions from the part C program to
the part B program.
Discussion: We agree that it is important to clarify the transition
requirements that apply when a child is referred to or determined
eligible for the part C program fewer than 90 days before the child's
third birthday. Given the 45-day timeline requirement in new Sec.
303.310, we have added paragraphs (b)(1)(i) and (b)(1)(ii) to new Sec.
303.209 to address the commenters' concerns.
Specifically, new Sec. 303.209(b)(1)(ii) clarifies that if a child
is referred and determined eligible for services under part C of the
Act between 90 and 45 days before the child's third birthday, LEA
notification must occur as soon as possible after the child is
determined eligible for early intervention services under part C of the
Act. For these children, although the lead agency is not able to
conduct a transition conference and develop a transition plan within
the timelines in Sec. 303.209(b)(1)(i) and (d)(2), we encourage States
to discuss transition at the child's initial IFSP meeting.
New Sec. 303.209(b)(1)(iii) clarifies that if a child is referred
to the lead agency fewer than 45 days before that child's third
birthday, the lead agency is not required to conduct an evaluation,
assessment or an initial IFSP meeting. We believe that the referral of
a child fewer than 45 days before a child's third birthday would not
allow a lead agency sufficient time to conduct the evaluation,
assessment and initial IFSP meeting. Additionally, a lead agency would
not have sufficient time to conduct a transition conference to discuss
steps and services. Thus, we have clarified in new Sec.
303.209(b)(1)(iii) that, for a child who is referred to the lead agency
fewer than 45 days before the child's third birthday, if the lead
agency has received information in its referral that the child may be
eligible for preschool services or other services under part B of the
Act, the lead agency, with the parental consent required under Sec.
303.414, must refer the toddler to the SEA and the LEA for the area in
which the toddler resides.
Concerning commenters' requests not to use the child's ``third
birthday'' in calculating timelines for LEA notification, the third
birthday is significant under part C of the Act because eligibility for
services for the toddler with a disability ends once that toddler turns
three, with two exceptions. A lead agency may provide services to a
child who has turned three years old if a State elects either to (a)
offer services under the option to make part C services available
beyond age three pursuant to Sec. 303.211 and the parent consents to
services under that section, or (b) provide services to a child who is
eligible under part B of the Act from that child's third birthday to
the beginning of the following school year under section 638(3) of the
Act and Sec. 303.501(c)(1), provided that those services constitute
FAPE for that child. In both circumstances, the child, upon turning age
three, must be eligible as a child with a disability under section 619
of the Act. With the exception of these two circumstances, part C
services end at the child's third birthday; therefore, the Department's
position is that the use of the phrase ``third birthday'' with regard
to the LEA notification provision is appropriate.
Changes: We have added new Sec. 303.209(b)(1)(ii) to clarify that
if the lead agency determines, between 90 and 45 days prior to a
child's third birthday that the child is eligible for early
intervention services under part C of the Act, the lead agency must
notify the SEA and the LEA for the area in which the toddler resides as
soon as possible after the eligibility determination, that the toddler
on his or her third birthday will reach the age of eligibility for
services under part B of the Act, as determined in accordance with
State law. Additionally, we have added paragraph (b)(3) to Sec.
303.209 to provide that if a toddler is referred to the lead agency
fewer than 45 days before that toddler's third birthday, the lead
agency is not required to conduct an evaluation, assessment or an
initial IFSP meeting, and if that toddler may be eligible for preschool
services or other services under part B of the Act, the lead agency,
with parental consent required under Sec. 303.414, must refer the
toddler to the SEA and the LEA for the area in which the toddler
resides.
Conference To Discuss Services (Sec. 303.209(c))
Comment: A few commenters recommended clarifying the required
attendees, timelines, and procedures for the transition conference
required in Sec. 303.209(c). One commenter asked why a child's service
coordinator is not included in the list of required attendees for the
transition conference. Other commenters requested that the regulations
specifically require an LEA or SEA representative to participate in the
transition conference; these commenters argued that this requirement
would make the part C regulations consistent with 34 CFR 300.124(c) of
the part B regulations.
Discussion: We agree that it would be helpful to clarify the
required attendees
[[Page 60176]]
for a transition conference. For this reason, we have added a new
paragraph (e) to Sec. 303.209, which references Sec. 303.343(a) and
the required members of the IFSP Team, to ensure that the attendees
required for periodic IFSP review meetings under Sec. 303.343(b),
including the service coordinator, also are required to attend the
transition conference required under Sec. 303.209(c) and the meeting
to develop the transition plan pursuant to Sec. 303.209(d).
It is the Department's position that requiring participation by an
LEA representative under this part is not appropriate but we note that,
as part of its responsibilities under section 637(a)(9)(A)(ii)(II) of
the Act and Sec. 303.209(c)(1) of these regulations, the lead agency
must invite the LEA representative to the transition conference. Under
34 CFR 300.124(c) of the part B regulations, each LEA must participate
in the transition conference arranged by the lead agency under section
637(a)(9)(A)(ii)(II) of the Act and Sec. 303.209(c). Thus, the
requirements under parts B and C of the Act provide adequately for the
participation of the LEA in the transition conference.
Changes: We have added a new Sec. 303.209(e) to require that the
transition conference conducted under paragraph (c) of this section or
the meeting to develop the transition plan under paragraph (d) of this
section (which conference and meeting may be combined into one meeting)
must meet the IFSP meeting and participant requirements in Sec. Sec.
303.342(d) and (e) and 303.343(a).
Program Options and Transition Plan (Sec. 303.209(d))
Comment: One commenter recommended that the regulations clarify
that a child transitioning from part C services to part B services must
not have a gap in services during the summer months.
Discussion: Once a toddler with a disability who received services
under part C of the Act turns three and is eligible for part B
preschool services under section 619 of the Act, that toddler may
receive services that are provided as either: (1) Part C services by
the lead agency under Sec. 303.211 (if the State has elected to offer
early intervention services to children after age three, and the
toddler's parent consents to receipt of services under this option), or
(2) services that constitute FAPE either under section 619 of the Act
(if the IEP Team determines such services are needed) or under section
638(3) of the Act (if the lead agency elects to offer such services). A
State may provide services under sections 619, 635(c) or 638(3) of the
Act regardless of whether the child turns age three during the summer
months. However, if the child with a disability receives services under
section 619 of the Act, any summer services (i.e., extended school year
(ESY) services pursuant to 34 CFR 300.106 of the part B regulations)
must be provided, through an appropriate IEP, if the child's IEP Team
determines that those ESY services are necessary for FAPE to be
provided to that child.
Changes: None.
Comment: One commenter expressed concern that limiting transition
planning to no more than nine months prior to the child's third
birthday does not offer enough time to ensure a seamless transition for
all children. The commenter recommended that the standard ``not fewer
than 90 days'' be adopted if a timeline must be established at all.
Discussion: Section 303.209(d) requires that a transition plan be
established in a child's IFSP not fewer than 90 days (and at the
discretion of all parties, not more than 9 months) before a toddler's
third birthday. The ``not fewer than 90 days'' component of this
requirement aligns the timeline for transition planning with the
timeline for the SEA and LEA notification requirements in Sec.
303.209(b) and with the timeline for the transition conference for
toddlers with disabilities potentially eligible for part B services in
Sec. 303.209(c), pursuant to section 637(a)(9)(A)(ii)(II) of the Act.
The outer limit of this timeline (i.e., ``not more than 9 months''
before the toddler's third birthday) is intended to protect toddlers,
whose needs change frequently at this age. The Department's position is
that if transition planning occurs more than nine months prior to a
toddler's third birthday, this planning may not accurately reflect the
needs of the child at the time of transition. For this reason, the
regulations only allow the parties to establish a transition plan for a
child not earlier than nine months prior to the child's third birthday.
Changes: None.
Comment: One commenter recommended deleting ``as appropriate'' from
Sec. 303.209(d)(3), which requires, consistent with Sec. 303.344(h),
that the transition plan in the IFSP include, as appropriate, steps for
the toddler with a disability and his or her family to exit from the
program. The commenter stated that IFSP Teams should not have the
discretion to determine which elements of a transition plan are
appropriate.
Discussion: The phrase ``as appropriate'' is included in section
637(a)(9)(C) of the Act, the statutory authority for Sec.
303.209(d)(3). Section 303.209(d)(3)(i) requires the transition plan to
include certain steps for the toddler with a disability and his or her
family to exit from the part C program. Section 636(a)(3) of the Act,
regarding IFSP content requirements, was modified in 2004 to require
that the IFSP identify the appropriate transition services for an
infant or toddler. Section 303.209(d)(3) clarifies that the
requirements in that section must be read in conjunction with Sec.
303.344(h), which requires the IFSP to include steps to support the
transition to one of the following: Preschool services under part B of
the Act; elementary school or preschool services for children
participating under a State's option in Sec. 303.211 to provide early
intervention services to children ages three and older; early
education, Head Start, and Early Head Start or child care programs; or
other appropriate services. The transition steps appropriate for a
toddler with a disability will differ depending upon which program
listed in Sec. 303.344(h) the IFSP Team selects. The transition plan
is part of the IFSP and must meet the content requirements in Sec.
303.344. The IFSP Team must identify in the IFSP appropriate steps for
the toddler and his or her family to exit the program and any
transition services. Therefore, the phrase ``as appropriate'' gives the
IFSP Team the flexibility to make an individualized determination as to
what (not whether) transition steps and services are appropriate for
each toddler with a disability.
Changes: None.
Comment: None.
Discussion: Based on further review of Sec. 303.209(d)(2), we have
determined that it is appropriate to clarify that a transition plan
referred to in this section is actually a part of an IFSP and not a
separate document. Consistent with section 636(a) of the Act, the IFSP
must include a description of the appropriate transition services for
the infant or toddler.
Changes: We have added the phrase ``in the IFSP'' following the
words ``transition plan'' in Sec. 303.209(d)(2). We also have added
section 636(a)(3) of the Act (20 U.S.C. 1436(a)(3)) to the authority
citation for this section.
Comment: A few commenters requested that the term ``transition
services,'' as used in Sec. 303.209(d)(3)(ii), be defined in the
regulations.
Discussion: Transition services are those services that assist a
toddler with a disability and his or her family to experience a smooth
and effective transition from an early intervention program under part
C of the Act to the
[[Page 60177]]
child's next program or other appropriate services, including services
that may be identified for a child who is no longer eligible to receive
part C or part B services. The IFSP Team, which includes the parent,
determines the appropriate transition services for each toddler exiting
the part C program. Given that transition services are based on the
unique needs of the child and the family, States require flexibility to
provide appropriate and individualized transition services for each
child. Therefore, it is the Department's position that to further
define the term transition services is not appropriate.
Changes: None.
Comment: Some commenters requested that a rule of construction be
added to Sec. 303.209 to indicate that part C programs would not be
held responsible for ensuring that required transition timelines are
met if referral for part C services occurs less than 45 days prior to
the date that the transition conference must occur.
Discussion: It is the Department's position that adding a rule of
construction to the regulations is not necessary because a State can
use its inter or intra-agency agreements, or other methods, to clarify
transition procedures and develop a process for unique circumstances,
such as the referral of a child less than 45 days prior to the date
that the transition conference must occur. The lead agency may not be
able to meet the transition conference and transition plan timelines in
Sec. 303.209(c)(1) and (d) if the lead agency receives a referral for
that child less than 45 days prior to the date that the transition
conference must occur (i.e., more than 90 days but less than 135 days
(that is, 45 days plus 90 days) prior to the child's third birthday).
However, we encourage States in these instances to discuss transition
at the initial IFSP meeting for a toddler with a disability who is
referred within 135 days of that toddler's third birthday.
Additionally, the lead agency remains responsible under Sec.
303.310 for meeting the 45-day timeline for conducting the initial
evaluation, assessments and IFSP meeting and, under Sec. Sec.
303.342(e) and 303.344(f)(1), for implementing the IFSP services that
are consented to by the parent as soon as possible. While we recognize
that the lead agency may not be able to meet the transition conference
and transition plan timelines in Sec. 303.209(c) and (d) for children
referred 135 days prior to their third birthday, pursuant to Sec.
303.209(b)(1)(ii), the lead agency must still refer the toddler with a
disability, as soon as possible, to the SEA and the LEA where the
toddler resides if that toddler is potentially eligible for preschool
services under part B of the Act.
Changes: None.
Comment: One commenter requested clarification as to whether the
IFSP meeting requirements, including accessibility of meetings, apply
to transition conferences in Sec. 303.209.
Discussion: In response to this comment, we have added new Sec.
303.209(e) to clarify that transition conferences conducted under Sec.
303.209(c) must meet the accessibility and parental consent
requirements in Sec. 303.342(d) and (e) and the meeting participant
requirements in Sec. 303.343(a). Additionally, because the meeting to
develop the transition plan under Sec. 303.209(d) can, but may not,
occur at the time of the annual or periodic IFSP review, we also have
clarified that the meeting to develop the transition plan under Sec.
303.209(d) must meet the accessibility and parental consent
requirements in Sec. 303.342(d) and (e) and the meeting participant
requirements in Sec. 303.343(a).
States may choose, but are not required, to combine the transition
conference with the meeting to develop the transition plan. It may make
sense in many States to combine the transition conference and IFSP
transition plan meeting, particularly for children potentially eligible
for services under part B of the Act, given that: (1) The LEA
representative must attend the transition conference (under section
612(a)(9) of the Act and 34 CFR 300.124(c) of the part B regulations);
and (2) the SEA and LEA must ensure that an IEP is developed and
implemented by age three for children with disabilities transitioning
from part C to part B of the Act (under section 612(a)(9) of the Act
and 34 CFR 300.101(b) and 300.124(b) of the part B regulations). We do
not require that the transition conference and meeting to develop the
transition plan be combined because transition practices vary both
between States and within States and it may not be appropriate for
children not potentially eligible for services under part B of the Act.
Changes: We have added new Sec. 303.209(e) to clarify that any
conference conducted under paragraph (c) of this section or the meeting
to develop the transition plan under paragraph (d) of this section must
meet the requirements in Sec. Sec. 303.342(d) and (e) and 303.343(a).
We also have included a parenthetical in this new section confirming
that this conference and meeting may be combined into one meeting.
Comment: A few commenters sought guidance on how the transition
requirements in Sec. 303.209 apply, including how to implement the
transition timeline requirements in Sec. Sec. 303.209(c)(1) and
303.209(d)(2) for children served under Sec. 303.211.
Discussion: We have added new Sec. 303.209(f) to clarify that the
transition requirements under Sec. 303.209 apply to all toddlers with
disabilities before they turn three years old and to identify the
separate, additional transition requirements that apply to toddlers
with disabilities in a State that offers services under Sec. 303.211.
Thus, new Sec. 303.209(f)(1) sets forth the requirement that the lead
agency must ensure the transition requirements in Sec. 303.209 apply
to all toddlers with disabilities (including toddlers with disabilities
in a State that offers services under Sec. 303.211) before they turn
three years old.
For toddlers with disabilities in a State that offers services
under Sec. 303.211, we also have clarified in new Sec. 303.209(f)(2)
the additional requirements that apply at the transition conference.
Under new Sec. 303.209(f)(2), at the transition conference, the
parents of a toddler with a disability must receive: (1) An
explanation, consistent with Sec. 303.211(b)(1)(ii), of the toddler's
options to continue to receive early intervention services under this
part or preschool services under section 619 of the Act; and (2) the
initial annual notice referenced in Sec. 303.211(b)(1). We have added
these requirements in Sec. 303.209(f)(2) to ensure that the initial
annual notice required in Sec. 303.211(b)(1) is provided at the
transition conference when the IFSP Team, which includes the parent of
a toddler with a disability, is required to consider transition
options, steps and services. The annual notice requirement in Sec.
303.209(f)(2) is not new as it is required under Sec. 303.211(b)(1).
Requiring the initial annual notice to be provided at the transition
conference is critical because the annual notice must contain an
explanation of the differences between services provided under Sec.
303.211 and preschool services under section 619 of the Act.
In new Sec. 303.209(f)(3), we clarify that the transition
requirements in new Sec. 303.211(b)(6)(ii), which relate to transition
from services under Sec. 303.211 to preschool, kindergarten or
elementary school, apply to children age three and older when those
children are receiving services under Sec. 303.211. We also discuss
these transition requirements further in the discussion relating to new
Sec. 303.211(b)(6) later in this Analysis of Comments and Changes
section of the preamble.
[[Page 60178]]
Changes: We removed from new Sec. 303.209(a)(1) (proposed Sec.
303.209(a)(1)(i)) references to children receiving services under Sec.
303.211. We have added new paragraphs (f)(1), (f)(2), and (f)(3) to
Sec. 303.209 to clarify the applicability of transition requirements
under Sec. 303.209. New Sec. 303.209(f)(1) provides that the
transition requirements in paragraphs (b)(1) and (b)(2), (c)(1), and
(d) of this section apply to all toddlers with disabilities receiving
services under this part before those toddlers turn age three. New
Sec. 303.209(f)(2) states that ``In a State that offers services under
Sec. 303.211, for toddlers with disabilities identified in paragraph
(b)(1) of this section, the parent must be provided at the transition
conference conducted under paragraph (c)(1) of this section: (i) An
explanation, consistent with Sec. 303.211(b)(1)(ii), of the toddler's
options to continue to receive early intervention services under this
part or preschool services under section 619 of the Act and (ii) The
initial annual notice referenced in Sec. 303.211(b)(1).'' Finally, in
new Sec. 303.209(f)(3), we clarify that the transition requirements
for children with disabilities age three and older receiving services
under Sec. 303.211 are set forth in Sec. 303.211(b)(6)(ii).
Coordination With Head Start and Early Head Start, Early Education, and
Child Care Programs (Sec. 303.210)
Comment: One commenter stated that Sec. 303.210 is redundant
because Head Start and Early Head Start are required members of the
State Interagency Coordinating Council (Council) under Sec.
303.601(a)(8).
Discussion: We do not agree that the inclusion of Head Start and
Early Head Start in Sec. 303.210 repeats the requirement in Sec.
303.601(a)(8), which requires at least one member of the Council to be
from a Head Start or Early Head Start agency or program in the State.
Section 303.210 implements section 637(a)(10) of the Act, which
requires each State application to contain a description of State
efforts to promote collaboration among Early Head Start programs under
section 645A of the Head Start Act, early education and child care
programs, and services under part C of the Act. This is different from
the requirement in section 641(b)(1)(H) of the Act, and implemented
through Sec. 303.601(a)(8), which specifies that at least one member
of the Council must be from a Head Start or Early Head Start agency or
program in the State.
Changes: None.
Comment: None.
Discussion: As discussed under Sec. 303.118, section 642B of the
Head Start Act of 2007 now requires the Governor of each State to
designate or establish a council to serve as the State Advisory Council
on Early Childhood Education and Care (referred to as State Advisory
Councils). 42 U.S.C. 9837b(b)(1)(A)(i). Section 642B(b)(1)(C)(viii) of
the Head Start Act states that the members of the State Advisory
Council shall include, to the maximum extent possible a representative
of the State agency responsible for programs under section 619 or part
C of the IDEA. Because this requirement regarding State Advisory
Councils was established after the proposed part C regulations were
published, in final Sec. 303.210 we have added that the State lead
agency must participate as a representative on the State Advisory
Council, if applicable. This provision mirrors the provision in the
Head Start Act and will increase coordination among early childhood
programs in the State.
Changes: Proposed Sec. 303.210 has been redesignated as Sec.
303.210(a) and we have added new Sec. 303.210(b) to require that the
State lead agency participate as a representative, under section
642B(b)(1)(C)(viii) of the Head Start Act, on the State Advisory
Council on Early Childhood Education and Care established under the
Head Start Act, if applicable.
State Option To Make Services Under This Part Available to Children
Ages Three and Older (Sec. 303.211)
Comment: A significant number of commenters opposed including a
State option to make services under this part available to children
ages three and older. Several commenters reported that States will not
make part C services available to children ages three and older
pursuant to this section. Most commenters stated that States do not
have adequate funding to implement this option. Another commenter
expressed concern that this option creates an additional program with
its own regulations, but no additional funding.
Discussion: Section 303.211 reflects the language from section
635(c) of the Act, which provides States with 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. If a State elects to offer this
option, children who are eligible for services under part B of the Act
and who previously received early intervention services under part C of
the Act would continue to receive early intervention services if their
parents choose to continue the services under this option. The
Department has no authority to eliminate this provision because it is
statutory.
Providing part C services to children who (a) are three years of
age and older, (b) are eligible for services under section 619 of the
Act, and (c) previously received early intervention services is an
option each State can consider. If a State chooses to offer part C
services to this group of children, it is ultimately the parent's
decision as to whether his or her eligible child, upon turning three
years of age, will continue to receive early intervention services
rather than part B services. Nothing in Sec. 303.211 or in section
635(c) of the Act requires a State to provide this option or parents to
elect to receive part C services for their child if their State makes
this option available.
Concerning the comments about funding for this option, it is the
Congress that decides whether to appropriate funds for this program.
Changes: None.
Comment: A few commenters stated that implementing the provisions
in Sec. 303.211 would be confusing for parents and LEAs given that
early intervention services are an entitlement while services under
part B of the Act are a mandate. These same commenters stated that
simply extending an entitlement via flexibility provisions could
jeopardize services to children with disabilities at a critical time in
their development.
Discussion: The Department recognizes the difference between parts
B and C of the Act; part B of the Act authorizes a program that
requires States to provide FAPE, defined as special education and
related services designed to meet the unique needs of a child with a
disability, and part C of the Act authorizes States to offer early
intervention services that are designed to meet the developmental needs
of infants and toddlers with disabilities at no cost to parents, except
where Federal or State law provides for a system of payments, including
a schedule of sliding fees. We do not agree with the commenters that
the implementation of the provisions in Sec. 303.211 would jeopardize
services to children with disabilities. Section 303.211 incorporates
the language from section 635(c) of the Act, regarding the flexibility
to serve children three years of age until entrance, or eligibility for
entrance, into kindergarten or elementary school. States that choose to
implement the option in Sec. 303.211 to provide part C services to
children three
[[Page 60179]]
years of age and older must provide, pursuant to Sec. 303.211(b)(2),
the parents of children with disabilities who are eligible for services
under section 619 of the Act and previously received early intervention
services with an annual notice that includes the following: 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 that 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. This annual notice will help to ensure that
parents of a child eligible for services under Sec. 303.211 understand
that they have the right to choose between early intervention services
under part C of the Act and preschool services under part B of the Act
and that they are fully informed of the differences between these two
options.
Moreover, with regard to the commenter's concern that the
provisions in Sec. 303.211 could jeopardize services to children with
disabilities at a critical time in their development, Sec.
303.211(b)(3) requires that States offering this option have a policy
in place that ensures that any child served pursuant to Sec. 303.211
has the right to receive, at any time, FAPE under part B of the Act
instead of early intervention services under part C of the Act.
Changes: None.
Comment: One commenter recommended that each State have the
flexibility to provide the Sec. 303.211 option to a subset of eligible
children based on age range and consistent with State-established
policies and procedures.
Discussion: Section 303.211, consistent with section 635(c) of the
Act, allows each State to develop and implement a policy under which
parents of children who are receiving early intervention services and
who are eligible to receive services under section 619 of the Act can
choose for these children to continue receiving early intervention
services under part C of the Act. Section 635(c) of the Act expressly
identifies (and limits) the age range through which these services may
be provided; that is, early intervention services could be available to
these children until they enter, or are eligible under State law to
enter, kindergarten. Section 303.211(a)(2) is specifically intended to
provide flexibility to a State that chooses to allow for the
continuation of early intervention services pursuant to Sec. 303.211
to provide services under the option to one of three subsets of
eligible children within this age range (i.e., eligible children from
age three until the beginning of the school year following the child's
third birthday, eligible children from age three until the beginning of
the school year following the child's fourth birthday and eligible
children from age three until the beginning of the school year
following the child's fifth birthday).
Changes: We have revised paragraph (a)(2) of Sec. 303.211 to
clarify the subsets of age ranges States can select to provide services
under the option in Sec. 303.211. We also have added new (a)(3) to
highlight the statutory requirement from section 635(c)(1) of the Act
that a State may provide services under Sec. 303.211 only until the
child enters, or is eligible under State law to enter, kindergarten or
elementary school in the State.
Requirements (Sec. 303.211(b))
Annual Notice Requirements (Sec. 303.211(b)(1))
Comment: A few commenters recommended that the Department clarify
what it means to give parents adequate information concerning the
differences between the part C and part B procedural safeguards as
required in Sec. 303.211(b)(1)(ii)(B).
Discussion: We agree clarification is needed regarding when, under
Sec. 303.211(b)(1), parents whose children are receiving services
under Sec. 303.211 must be provided an annual notice of procedural
safeguards. As discussed in the Analysis of Comments and Changes
section for new Sec. 303.209(f)(2), we have clarified that the first
annual notice must be provided at the transition conference when the
parent is presented the initial option for the child to receive
services under Sec. 303.211 or under section 619 of the Act.
Additionally, for consistency, we have revised reference to
children being served under Sec. 303.211 to children who are eligible
for services under section 619 of the Act and who previously received
early intervention services because when the first annual notice is
provided, children generally would not yet be served under Sec.
303.211.
Regarding what information must be included in the annual notice,
States choosing to offer early intervention services under Sec.
303.211 must provide parents of these children with disabilities with
an annual notice that includes, among other things, 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.
Section 303.211(b)(1)(ii)(B) requires the explanation to include a
description of the differences in procedural safeguards that apply to
parents who decide to continue receiving early intervention services
under part C of the Act compared with the procedural safeguards that
apply to parents who decide their child should receive preschool
services under part B of the Act. The notice required under Sec.
303.211(b)(1) must identify procedural safeguards that apply, which
identification requirement can be met by including the content
requirements from Sec. 303.421(b)(3) and 34 CFR 300.504(c) and an
explanation of the major differences between the procedural safeguards
available under the separate programs.
Changes: We have deleted in Sec. 303.211(b)(1) ``served pursuant
to this section'' and added the phrase ``eligible for services under
section 619 of the Act and who previously received early intervention
services under this part will be'' before ``provided annual notice.''
Educational Component (Sec. 303.211(b)(2))
Comment: One commenter recommended including the words ``social and
health'' in Sec. 303.211(b)(2) to reinforce that the part C program
promotes education, social, and health therapies.
Discussion: It is not necessary to include the words ``social and
health'' in Sec. 303.211(b)(2) because the part C requirements apply
to children receiving services under Sec. 303.211 in the same manner
as they do to all other children receiving services under part C of the
Act, which may require, depending on an individual child's needs,
providing health services and social or emotional services under Sec.
303.13.
Changes: None.
FAPE (Sec. 303.211(b)(3))
Comment: One commenter expressed concern regarding the potential
loss of FAPE for children age three and older who continue to receive
early intervention services pursuant to Sec. 303.211. One commenter
recommended amending Sec. 303.211(b)(3) to clarify that parents whose
child is receiving services under part C of the Act past the age of
three pursuant to Sec. 303.211 have the right, at any time, to opt out
of these early intervention services and, instead, to obtain FAPE,
[[Page 60180]]
which includes preschool services, under part B of the Act.
Discussion: We agree with the commenter that parents must retain
the right to opt out at any time after choosing part C services past
the age of three. Therefore, we have added the phrase ``at any time''
to Sec. 303.211(b)(3) to clarify that parents whose child is receiving
services under part C of the Act past the age of three pursuant to
Sec. 303.211 retain the right, at any time, to opt out of these early
intervention services pursuant to Sec. 303.211 and, instead, to obtain
FAPE under part B of the Act for their child.
Changes: We have revised Sec. 303.211(b)(3) to require that the
part C statewide system ensures that any child served under Sec.
303.211 has the right, at any time, to receive FAPE under part B of the
Act instead of early intervention services under part C of the Act.
Services During Eligibility Determination (Sec. 303.211(b)(4))
Comment: Some commenters stated that the language in proposed Sec.
303.430(e)(3) relates not to pendency, but to the requirement in
section 635(c)(2)(D) of the Act and Sec. 303.211(b)(4), that IFSP
services continue to be provided to a toddler with a disability until a
part B eligibility determination is made for that child in a State that
elects to make part C services available beyond age three under Sec.
303.211. A few commenters suggested clarifying that this requirement
only applies in a State that has opted to make early intervention
services available to children ages three and older.
Another commenter opposed the requirement in Sec. 303.211(b)(4)
and proposed Sec. 303.430(e)(3) stating that it could create
disincentives for LEAs to make timely part B eligibility
determinations, impede a child's timely access to FAPE, and require a
lead agency to provide part C services to a child who is not eligible
under part B of the Act for a significant period beyond the child's
third birthday.
A few commenters indicated that proposed Sec. 303.430(e)(3)
conflicts with sections 607(a) and (b) and 615(j) of the Act and the
Third Circuit decision in Pardini v. Allegheny Intermediate Unit, 420
F.3d 181 (3d Cir. 2005), cert. denied, 126 S.Ct. 1646 (2006). One
commenter recommended referencing part B eligibility as well as
ineligibility in proposed Sec. 303.430(e)(3)(ii).
Discussion: We agree with commenters who noted that the requirement
in proposed Sec. 303.430(e)(3) applies only to States that elect to
offer services under Sec. 303.211 and is not a pendency provision and,
thus, we have moved the substance of proposed Sec. 303.430(e)(3) to
Sec. 303.211(b)(4). For clarification, we have added that it is the
lead agency that must continue to provide all early intervention
services identified in the toddler with a disability's IFSP under Sec.
303.344 (and consented to by the parent under Sec. 303.342(e)) beyond
age three until that toddler's initial eligibility under part B of the
Act is determined under 34 CFR 300.306.
Regarding commenters' concerns about delaying part B eligibility
determinations and potentially requiring a lead agency to provide
services for an unlimited time period, we have clarified that this
provision does not apply if the LEA has requested parental consent for
the initial evaluation under 34 CFR 300.300(a) and the parent has not
provided that consent.
We disagree with commenters' suggestion that this requirement in
Sec. 303.211(b)(4) creates disincentives for LEAs to make a timely
part B eligibility determination for a toddler with a disability who is
not yet age three and is transitioning from the part C program at age
three to either the part B preschool program under section 619 of the
Act or to the part C extension option under section 635(c) of the Act
and Sec. 303.211. In order for the toddler with a disability to be
eligible either for part B preschool services or for services under
Sec. 303.211, the child must be determined to be eligible under
section 619 of the Act and the LEA is required to make this eligibility
determination.
Under Sec. 303.209(c) and 34 CFR 300.124(c), a lead agency
representative and an LEA representative must attend the transition
conference under part C of the Act for a child potentially eligible for
part B services (with approval of the family) and this conference must
occur at least 90 days (and at the discretion of all parties not more
than 9 months) prior to the child's third birthday. It is at this
conference that the LEA and lead agency must coordinate the
determination of eligibility of a child for services under section 619
of the Act and offering the parent any services under the part C
extension option under Sec. 303.211.
The parent must consent to an evaluation to determine eligibility
under section 619 of the Act. Once a parent consents to the initial
evaluation under part B of the Act, the LEA must conduct the evaluation
under 34 CFR 300.301(b) of the part B regulations within 60 days or a
State-determined timeline. Additionally, under section 612(a)(9) of the
Act and 34 CFR 300.124(b) of the part B regulations, the SEA and LEA
must ensure that an IEP has been developed and is being implemented by
age three for a toddler with a disability who transitions from part C
of the Act to part B of the Act regardless of whether the State has
established a timeline different from the 60-day evaluation timeline in
34 CFR 300.301(c)(1) of the part B regulations.
Thus, the eligibility determination must be made by the LEA in
sufficient time to enable the LEA to offer FAPE to that child who is
transitioning from the part C program by age three (if that child is
eligible as a child with a disability under part B of the Act), as
required by section 612(a)(9) of the Act and 34 CFR 300.124(b) of the
part B regulations.
In response to commenters' reference to section 615(j) of the Act
and the Third Circuit decision in Pardini, the part B pendency
provisions in section 615 of the Act and 34 CFR 300.518(c) do not
otherwise require public agencies under part B of the Act to provide
part B services when a child transitions from part C to part B of the
Act. Additionally, unless the State elects to offer services under
Sec. 303.211, the lead agency or EIS provider under part C of the Act
is not required to provide part C services once the child turns three.
Changes: We have revised Sec. 303.211(b)(4) to clarify that the
lead agency must continue to provide all early intervention services
identified in the toddler with a disability's IFSP under Sec. 303.344
(and consented to by the parent under Sec. 303.342(e)) beyond age
three until that toddler's initial eligibility determination under part
B of the Act is made under 34 CFR Sec. 300.306. This requirement does
not apply if the LEA has requested parental consent for the initial
evaluation under Sec. 300.300(a) and the parent has not provided that
consent.
Informed Consent (Sec. 303.211(b)(5))
Comment: One commenter recommended deleting the words ``where
practicable'' in Sec. 303.211(b)(5), which relates to the requirement
that the lead agency obtain informed consent from parents before the
child reaches three years of age. The commenter also recommended adding
language to Sec. 303.211(b)(5) to require lead agencies to obtain
verification from parents that they fully understand the benefits of
both the program implemented under part B of the Act and the program
implemented under part C of the Act before allowing the parents to
decide whether to place their child in a part B or part C program at
age three pursuant to Sec. 303.211.
[[Page 60181]]
Discussion: Section 303.211(b)(5) requires States to ensure that
informed consent is obtained from the parent of any child to be served
under Sec. 303.211. The phrase ``where practicable'' was not intended
to mean that parental consent was optional. To be clear, the lead
agency must obtain informed consent for all children served under Sec.
303.211. The ``where practicable'' language was intended to modify the
requirement that lead agencies obtain consent before--rather than
after--the child turns three years of age. We included the ``where
practicable'' language because we recognize that it may not always be
possible or practicable for lead agencies to obtain consent before the
child's third birthday, for example, when a child is ill or there is a
family emergency. We have revised Sec. 303.211(b)(5) to clarify our
intended meaning for this provision.
Requiring in Sec. 303.211(b)(5) that lead agencies verify that
parents fully understand the benefits of both the part B and part C
programs is not necessary for two reasons. First, Sec. 303.211(b)(1)
requires that States provide an annual notice that includes 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 to parents of children with disabilities who are
eligible under section 619 of the Act and who previously received early
intervention services. Second, Sec. 303.211(b)(5) further provides
that informed consent must be obtained from parents for the
continuation of early intervention services pursuant to Sec. 303.211
for their child.
Consent, as defined in Sec. 303.7, means 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. This definition of consent in Sec. 303.7 also requires
that the parent understand and agree in writing to the activity for
which the parent's consent is sought.
Thus, Sec. Sec. 303.211(b)(1) and 303.211(b)(5), when read
together, make clear that States are required to obtain written consent
from parents of children with disabilities eligible under section 619
of the Act who previously received early intervention services and that
this written consent must state that the parents fully understand the
differences between early intervention services provided under part C
of the Act and preschool services provided under part B of the Act.
Repeating this requirement, as recommended by the commenter, is not
necessary.
Changes: We have modified Sec. 303.211(b)(5) by separating the
language into two sentences. The first sentence clarifies that a
statewide system of a State offering the option under Sec. 303.211
must ensure that the lead agency obtain informed consent from the
parents of any child to be served under this section for the
continuation of early intervention services pursuant to Sec. 303.211.
We have moved the phrase ``where practicable'' to the end of a new
second sentence to clarify that it modifies the requirement that
consent be obtained before the child reaches three years of age.
Applicability of Transition Timelines (Sec. 303.211(b)(6))
Comment: One commenter recommended revising Sec. 303.211(b)(6) to
provide States with explicit guidance on how to implement the
transition timeline requirements in Sec. Sec. 303.209(c)(1) and
303.209(d)(2).
Discussion: We agree that the transition timelines for children
served under Sec. 303.211 were not clear in proposed Sec. Sec.
303.209 and 303.211. Thus, we have revised Sec. 303.211(b)(6) to
identify the transition requirements (i.e., requirements relating to
the transition from receiving services under Sec. 303.211 to
preschool, kindergarten or elementary school) that apply to children
age three and older who are receiving services under Sec. 303.211.
Specifically, we have added new Sec. 303.211(b)(6)(i), (b)(6)(ii), and
(b)(6)(iii) to clarify that the lead agency must notify the SEA and
appropriate LEA, conduct a transition conference, and develop a
transition plan in the IFSP not fewer than 90 days before the child
will no longer be eligible under Sec. 303.211(a)(2) to receive or will
no longer receive early intervention services under Sec. 303.211.
These transition requirements, which parallel the requirements in Sec.
303.209(b)(1)(i), (c)(1), and (d), are intended to occur after the
child is receiving, but soon to exit from, services under Sec.
303.211. These transition requirements do not affect the transition
requirements under Sec. 303.209, which apply to all infants and
toddlers under the age of three, including those in a State that elects
to provide services under Sec. 303.211.
As noted earlier under new Sec. 303.209(f) of this Analysis of
Comments and Changes section of the preamble, we have clarified in new
Sec. 303.211(b)(6) that the transition requirements concerning SEA and
LEA notification, transition conference, and transition plan in
Sec. Sec. 303.209(b)(1)(i) and (b)(1)(ii), (c)(1), and (d),
respectively, apply to toddlers with disabilities under the age of
three in a State that elects to offer services under Sec. 303.211. We
have clarified these requirements because ensuring a seamless
transition for children receiving services under Sec. 303.211 is
important and the lead agency and LEA must coordinate transition
planning (including part B eligibility determination and timely IEP
development) for toddlers who may continue to receive part C services
under Sec. 303.211.
Finally, we have identified the appropriate timeline as ``not fewer
than 90 days before the child will no longer be eligible to receive, or
will no longer receive, early intervention services under Sec.
303.211.'' We recognize that, in limited instances, parents may not
notify the lead agency more than 90 days prior to requesting that their
child no longer receive services under Sec. 303.211 and, in those
instances, it would not be possible for the lead agency to meet the
requirements in Sec. 303.211(b)(6). In these instances, we encourage
lead agencies and SEAs and LEAs to coordinate, to the extent feasible,
the transition of these children from early intervention services under
Sec. 303.211.
Changes: We have revised new Sec. 303.211(b)(6) to clarify that
toddlers with disabilities in a State that offers services under this
section are subject to the transition requirements in Sec.
303.209(b)(1)(i) and (b)(1)(ii), (c)(1), and (d). We also have revised
Sec. 303.211(b)(6) to describe the lead agency's obligations to ensure
a smooth transition for children age three and older who are receiving
services under Sec. 303.211 (i.e., transition from Sec. 303.211
services to preschool, kindergarten, or elementary school). Under new
Sec. 303.211(b)(6)(ii)(A), the lead agency must notify the SEA and the
LEA where the child resides not fewer than 90 days before the child
will no longer be eligible to receive, or will no longer receive, early
intervention services under Sec. 303.211. In new Sec.
303.211(b)(6)(ii)(B), the lead agency must, with the approval of the
parents of the child, convene a transition conference, among the lead
agency, the parents, and the LEA, not fewer than 90 days--and, at the
discretion of all of the parties, not more than 9 months--before the
child will no longer be eligible to receive, or will no longer receive,
Sec. 303.211 services, to discuss any services that child may receive
under part B of the Act. Finally, we have added Sec.
303.211(b)(6)(i)(C) to require lead agencies to establish a transition
plan in the IFSP not fewer than 90 days--and, at the discretion of all
of the parties, not more than 9 months--before the child will no longer
be eligible to
[[Page 60182]]
receive, or no longer will receive, Sec. 303.211 services.
Referral Based on Trauma Due to Exposure to Family Violence (Sec.
303.211(b)(7))
Comment: Some commenters recommended amending Sec. 303.211(b)(7)
to specifically reference infants and toddlers, not just children over
the age of three, who experience trauma because the regulatory language
in this section is not consistent with the explanation for the
regulation provided by the Department in the preamble of the NPRM.
Another commenter stated that there is no principled reason for
restricting the required referral under this section to children over
the age of three in States where these children remain eligible for
early intervention services, while another commenter questioned whether
the requirement to refer children under the age of three based on
trauma due to exposure to family violence only applies to children in
States implementing the birth to kindergarten option.
Discussion: It appears that the commenters may have misunderstood
Sec. 303.211(b)(7). Section 303.211(b)(7), consistent with section
635(c)(2)(G) of the Act, requires, for States that adopt policies under
Sec. 303.211, 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. This requirement only applies to children under the age of three
because children age three and older are not eligible to be referred
for early intervention services under any provision in part C of the
Act. Children age three and older will either continue to receive early
intervention services for which they were already referred or would be
referred to the part B system. Referrals to the part B system are
addressed under part B of the Act; it would not be appropriate to
address them under this part.
Section 303.211(b)(7) clarifies that a referral for evaluation for
early intervention services applies only to children under the age of
three who experience a substantiated case of trauma due to exposure to
family violence, and only in States implementing the State option in
Sec. 303.211 to make part C services available to children ages three
and older. An example of a child who may be referred under Sec.
303.211(b)(7) would be a child under the age of three who has
experienced a substantiated case of trauma due to exposure to family
violence and who is a sibling of a child already receiving early
intervention services under the option described in Sec. 303.211.
We have not amended Sec. 303.211(b)(7) as requested by the
commenters; however, we have removed the parenthetical in new Sec.
303.302(c)(1)(ii)(A) (proposed Sec. 303.301(c)(1)(ii)(A)) and new
Sec. 303.303(c)(11) (proposed Sec. 303.302(c)(11)). The parenthetical
in Sec. 303.302(c)(1)(ii)(A) (proposed Sec. 303.301(c)(1)(ii)(A))
limits coordination of the child find system with programs that provide
services under the Family Violence and Prevention Act to States that
elect to make services available under this part to children after the
age of three. The parenthetical in new Sec. 303.303(c)(11) (proposed
Sec. 303.302(c)(11)) limits the scope of domestic violence shelters
and agencies as primary referral sources to ``domestic violence
shelters and agencies in States that elect to make services available
under this part to children after the age of three.''
The Department's position is that domestic violence shelters and
agencies should be considered primary referral sources regardless of
whether the State that they are located in elects to make services
available under this part to children after the age of three. It is the
Department's position that it is not appropriate to limit either
coordination or referrals in this manner and, thus, we have removed
each parenthetical in new Sec. 303.302(c)(1)(ii)(A) (proposed Sec.
303.301(c)(1)(ii)(A)) and new Sec. 303.303(c)(11) (proposed Sec.
303.302(c)(11)).
Changes: We have removed the parenthetical ``(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)'' from Sec.
303.302(c)(1)(ii)(A) (proposed Sec. 303.301(c)(1)(ii)(A)) and new
Sec. 303.303(c)(11) (proposed Sec. 303.302(c)(11)).
Comment: One commenter requested that the Department clarify in
Sec. 303.211(b)(7), or elsewhere in Sec. 303.211, the parental
consent requirements for children receiving services under Sec.
303.211. Specifically, the commenter questioned whether the definition
of parent in Sec. 303.27 and general consent for evaluation
requirements in Sec. 303.420(a)(2) apply to this section. The
commenter also expressed concern that parental consent may be difficult
to obtain for the children referenced in Sec. 303.211(b)(7),
especially for children who are under the jurisdiction of a child
protective services agency.
Discussion: If a State elects to offer services under Sec.
303.211, the lead agency must obtain parental consent as required under
Sec. 303.211(b)(5) before making those services available. The
Department's position is that Sec. 303.211(b)(5) is sufficiently clear
with regard to parental consent and, thus, we have not revised Sec.
303.211(b)(5) as requested by the commenter. The definition of parent
under part C of the Act in Sec. 303.27 applies to the parental consent
requirement in Sec. 303.211(b)(7). A parent, as defined in Sec.
303.27, can be a biological or adoptive parent, foster parent (unless
State law, regulation, or contractual obligation prohibits the foster
parent from acting as a parent), 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), an individual acting in
the place of a biological or adoptive parent (including a grandparent,
stepparent or other relative with whom the child lives), an individual
legally responsible for the child's welfare, or a surrogate parent
appointed in accordance with Sec. 303.422 or section 639(a)(5) of the
Act.
The lead agency's process for obtaining parental consent under
Sec. 303.211 is the same as its process for obtaining parental consent
under Sec. 303.420(a), whether parental consent is needed to conduct
an evaluation under part C of the Act or to provide part C services.
While we appreciate the commenter's concern about obtaining
parental consent when a child is placed with a child protective
services agency, the Department's position is that the regulations in
this part provide sufficient clarity and information about how to
proceed in this situation. First, Sec. 303.27 identifies who can serve
as the parent under part C of the Act and whether a surrogate parent
needs to be appointed. Further, Sec. 303.27(b)(1) explains that if
more than one individual meets the definition of a parent, the
biological or adoptive parent must be presumed to be the parent unless
that parent's authority is circumscribed as set forth in that section.
Second, Sec. 303.420 specifies when the lead agency must obtain
consent from a parent. Parental consent must be obtained before early
intervention services are provided to the child. Third, Sec. 303.421
provides information about important aspects of the consent process,
prior written notice, and procedural safeguards.
[[Page 60183]]
Fourth, Sec. 303.420 sets forth the requirements and options if
parental consent is not obtained. Given these other regulatory
requirements, the Department's position is that the issue of obtaining
parental consent for the children referenced in Sec. 303.211(b)(7) is
addressed appropriately and sufficiently.
Changes: None.
Rules of Construction (Sec. 303.211(e))
Comment: A few commenters expressed concern about the rules of
construction provision in Sec. 303.211(e). One commenter stated that
these provisions may contradict a parent's option to select part B
services if a State offers a ``Birth to Five'' program. Another
commenter requested that the Department expand the rules of
construction to include a provision that a lead agency will not be held
responsible for meeting transition timelines when a child is referred
for part C services less than 45 days prior to the time that the
transition conference is due to be held.
Discussion: States are not required to implement the provisions in
Sec. 303.211. This section simply provides States with an option to
make services under part C of the Act available to children ages three
and older. If a State decides to offer this option, parents may choose
for their children to receive early intervention services, rather than
part B services, beyond the age of three. Nothing in Sec. 303.211 or
section 635(c) of the Act affects a parent's right to choose services
under part B of the Act at any time once the child is eligible to
receive part B services. Additionally, nothing in Sec. 303.211 or
section 635(c) of the Act requires a State to use the option described
in Sec. 303.211 in order to implement policies and procedures for
transition to preschool and other programs included in Sec. 303.209.
Finally, the commenter requested that we amend the rules of
construction to state that a lead agency will not be held responsible
for meeting transition timelines when a child is referred for part C
services less than 45 days prior to the time that the transition
conference is required to be held under Sec. 303.209. The rules of
construction in Sec. 303.211(e) only apply to Sec. 303.211 and thus
only apply to children over the age of three who were previously
eligible for and received early intervention services under part C of
the Act. A child over the age of three who was previously eligible for
and already received early intervention services under part C of the
Act would never need to be referred for part C services and, therefore,
the transition timeline requirements in Sec. 303.209 do not apply to
these children. For this reason, we decline to make the change
requested by the commenter.
Changes: None.
Additional Information and Assurances (Sec. 303.212)
Comment: None.
Discussion: To create a freestanding document in these regulations,
we have added as new Sec. 303.212(a), regarding additional information
and assurances that must be included in each State's part C
application, a provision that incorporates the application content
requirements under section 427(b) of GEPA. This provision of GEPA
requires a State application to include a description of the steps that
the State is taking to ensure equitable access to, and equitable
participation in, the programs that will be conducted by the State
using Federal funds (in this case, Federal funds for the part C
program). This provision also requires the State to develop and
describe in its application the steps the State is taking to address
the special needs of program beneficiaries (in this case, infants and
toddlers with disabilities and their families) in order to overcome
barriers to equitable participation, including barriers based on
gender, race, color, national origin, disability, and age.
Changes: We have added a new paragraph (a) to Sec. 303.212 to
clarify that a State's part C application must include: ``A description
of the steps the State is taking to ensure equitable access to, and
equitable participation in, the part C statewide system as required by
section 427(b) of GEPA.''
Reports and Records (Sec. 303.224)
Comment: A few commenters expressed concern with the requirements
in Sec. 303.224. One commenter stated that this section grants the
Secretary broad authority over State recordkeeping without providing
appropriate notice to States about the content they are required to
maintain in the records. Another commenter expressed concern that
States may not have the data to respond to requests from the Secretary
and recommended that, if adopted, the requirement should be modified to
indicate that data requests from the Secretary cannot be unreasonable
or place an undue burden on States. One commenter requested that the
Department include in Sec. 303.224 a reference to the Single Audit
Act.
Discussion: This section tracks the language from section 637(b)(4)
of the Act, which requires States both to ensure that reports are in
the form and contain the information that the Secretary may require to
carry out the functions under part C of the Act and to keep such
reports and afford such access to the reports as the Secretary may find
necessary to ensure the correctness and verification of those reports
and proper disbursement of Federal funds under part C of the Act. The
purpose of this section is for the Secretary to have access to the
proper records to ensure compliance with the part C requirements. The
requirements in this section do not reflect any new requirements or an
additional burden on States.
Regarding the request to add a reference to the Single Audit Act in
this section, it would be redundant to identify all of the provisions
in other authorities such as GEPA, Education Department General
Administrative Regulations (EDGAR), and the Single Audit Act that
require the lead agency to maintain fiscal accounting records. Thus, we
decline to add this reference as requested by the commenter.
Changes: None.
Prohibition Against Supplanting; Indirect Costs (Sec. 303.225)
Comment: The Department received several comments on proposed Sec.
303.225 in the following areas: the Single Audit Act, the phrase ``and
increase'' in proposed Sec. 303.225(b)(1)(i), and whether States must
certify and verify that they have maintained fiscal effort from year to
year.
Discussion: Since the publication of the NPRM in May 2007, the
Department has received many informal inquiries requesting guidance on
MOE requirements (which implement the supplement not supplant
requirements under part C of the Act). States also have expressed
concern about their ability to meet the MOE requirements and their
continued participation in the part C program. So that we can seek
further input on the MOE requirements, the Department intends to issue
an NPRM on the MOE requirements. Therefore, we are not finalizing
proposed Sec. 303.225 and instead are incorporating into Sec.
303.225(a) the provisions in section 637(b)(5) of the Act, which
prohibit the commingling of Federal funds with State funds and
supplanting State and local funds with Federal funds. We also are
incorporating into Sec. 303.225(b) the MOE requirements in current
Sec. 303.124 and are retaining the indirect cost provisions in
proposed Sec. 303.225(c).
Changes: We have revised proposed Sec. 303.225(a) to include
language from section 637(b)(5) of the Act and replaced
[[Page 60184]]
proposed Sec. 303.225(b) with current Sec. 303.124.
Traditionally Underserved Groups (Sec. 303.227)
Comment: A few commenters supported the requirement in Sec.
303.227 that ensures policies and practices be adopted so that
traditionally underserved groups, including minority low-income,
homeless, rural families, and children with disabilities who are wards
of the State are meaningfully involved in the planning and
implementation of services. However, the commenters suggested that all
families, not just those identified in this section, should have access
to culturally competent services. Another commenter recommended
including explicit language requiring a State to ensure that its
service providers have an understanding of the communication norms and
family customs of traditionally underserved groups as a part of the
cultural competence mentioned in Sec. 303.227(b).
Discussion: Early intervention services, as defined in Sec.
303.13, must be designed to meet the 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. Thus,
all families of an infant or toddler with a disability must be provided
with access to culturally competent services when those services are
necessary to meet the needs of their child. Section 303.227(b) does not
limit this requirement in any way; it simply focuses on the access of
traditionally underserved groups to culturally competent services,
consistent with the provisions in current Sec. 303.128 and section
637(b)(7) of the Act, which require a State to provide, in its
application, policies and procedures that ensure meaningful involvement
of underserved groups in the planning and implementation of all the
requirements of this part. Thus, the Department's position is that the
regulations in this part adequately address the commenter's concern
about families' access to culturally competent services.
We do not define the term cultural competence in these regulations
because it is the Department's position that States are in the best
position to determine the parameters of ``culturally competent
services'' to meet the unique needs of their populations.
Changes: None.
Comment: A few commenters requested that Sec. 303.227 require
States to identify and address barriers faced by homeless children and
other traditionally underserved populations when attempting to
participate in part C programs.
Discussion: We appreciate the commenter's concerns regarding
barriers faced by homeless children and other traditionally underserved
populations when attempting to participate in part C programs, but it
is the Department's position that it is unnecessary and inappropriate
to add language to these regulations to require States to identify and
address those barriers. This subject is more appropriately addressed
through technical assistance and guidance so that the Department can
work collaboratively with States to assist each State to identify the
traditionally underserved populations that are specific to the State,
meet the needs of homeless children and the infants and toddlers with
disabilities in the identified populations, and address the barriers to
service for homeless children and infants and toddlers with
disabilities in the identified populations. Additionally, the McKinney-
Vento Act offers a number of protections to homeless children,
including homeless infants and toddlers with disabilities, and it is
the Department's position that it is not necessary to duplicate the
requirements of the McKinney-Vento Act in these regulations. The
Department is committed to providing technical assistance to States in
order to assist States in their ability to ensure access to early
intervention services by homeless children and other traditionally
underserved populations.
Changes: None.
Notice and hearing before determining that a State is not eligible
(Sec. 303.231(a)(1)(i)).
Comment: One commenter recommended that Sec. 303.231(a)(1)(i) be
amended to ensure that a State receive at least 90 days notice--not
just ``reasonable notice''--prior to the Secretary making a final
determination that the State is ineligible to receive its part C grant
award.
Discussion: Section 637(c) of the Act provides that the Secretary
may not disapprove an application for a part C grant award unless the
Secretary determines, after notice and opportunity for a hearing, that
the application fails to comply with the requirements under part C of
the Act. Both parts B and C of the Act in current Sec. 303.101 (which
references 34 CFR 300.581 through 300.586 of the part B regulations in
effect prior to October 13, 2006) and 34 CFR 300.179 of the current
part B regulations require the Secretary to provide a State with
reasonable notice before making a final determination that the State is
ineligible to receive a grant award. Section 303.231(a)(1)(i)
incorporates this long-standing reasonable notice requirement and thus
provides both the Department and States with the flexibility to address
circumstances on a case-by-case basis. Therefore, it is the
Department's position that it is not necessary to add a 90-day timeline
as requested by the commenter.
Changes: None.
Subpart D--Child Find, Evaluations and Assessments, and Individualized
Family Service Plans
General (New Sec. 303.300)
Comment: We received a number of comments concerning subpart D of
these regulations; many of these comments suggested that there is some
confusion in the field about the implementation of the child find,
screening, evaluation, assessment, and IFSP provisions in the proposed
regulations.
Discussion: Given the number of comments we received on this
subpart, we have provided an overview of how subpart D is organized and
how the components described in this subpart relate to one another. We
have added a new Sec. 303.300 to identify and distinguish the
following required components of the part C statewide early
intervention system: (a) Pre-referral (public awareness and child find)
policies and procedures, (b) referral policies and procedures, and (c)
post-referral policies and procedures. Accordingly, we have renumbered
the public awareness program provisions as new Sec. 303.301 and the
child find provisions as new Sec. 303.302.
In order for the part C statewide system to identify, locate,
evaluate, and serve all infants and toddlers with disabilities
effectively, the system must be both comprehensive and coordinated. As
clarified in this subpart, this means establishing policies and
procedures for (a) pre-referral activities (i.e., to make the public
aware of the availability of early intervention services and to
coordinate with other programs to identify and locate infants and
toddlers with disabilities), (b) the referral of children under the age
of three to the part C program, and (c) post-referral activities (i.e.,
the screening, if applicable, of children under the age of three who
have been referred to the part C program under new Sec. 303.320
(proposed Sec. 303.303); the evaluation and assessment of the child
and the child's family under new Sec. 303.321 (proposed Sec.
303.320); and the development, review, and implementation of the IFSP,
under Sec. Sec. 303.342 through 303.346).
[[Page 60185]]
Subpart D follows the general chronological order of the pre-
referral, referral, and post-referral components of the part C
statewide system. Specifically, this subpart begins by describing the
required public awareness program (part of the pre-referral process)
and ends with a requirement that public agencies and EIS providers that
are directly responsible for providing early intervention services to a
child make good faith efforts to assist that child in achieving the
outcomes in the child's IFSP (part of the post-referral process). In
this way, we intend subpart D of these regulations to provide the
framework for effectively identifying, locating, and providing early
intervention services to all eligible infants and toddlers with
disabilities.
Changes: We have added new Sec. 303.300 to identify and
distinguish between the pre-referral, referral, and post-referral
components of a statewide early intervention system. Section 303.300
states that the statewide comprehensive, coordinated, multidisciplinary
interagency system to provide early intervention services for infants
and toddlers with disabilities and their families required in Sec.
303.1 must include the following components: (a) Pre-referral policies
and procedures that include a public awareness program as described in
new Sec. 303.301 (proposed Sec. 303.300) and a comprehensive child
find system as described in new Sec. 303.302 (proposed Sec. 303.301);
(b) Referral policies and procedures as described in new Sec. 303.303
(proposed Sec. 303.302); and (c) Post-referral policies and procedures
to ensure compliance with the timeline requirements in new Sec.
303.310 and that include screening, if applicable, as described in new
Sec. 303.320 (proposed Sec. 303.303); evaluations and assessments as
described in new Sec. 303.321 (proposed Sec. 303.320); and
development, review, and implementation of IFSPs as described in
Sec. Sec. 303.342 through 303.346.
Public Awareness Program--Information for Parents (New Sec. 303.301)
(Proposed Sec. 303.300)
Comment: A few commenters supported proposed Sec.
303.300(a)(1)(ii), which specifically included parents with premature
infants or infants with other physical risk factors associated with
learning or developmental complications among those parents to whom
information about early intervention services must be disseminated.
These commenters requested that we add a requirement that child find
activities be conducted in collaboration with parent advocacy groups or
other community agencies that are available to answer questions and
provide support to these families as they access services.
Discussion: The regulations track the language in section 635(a)(6)
of the Act, which describes the required public awareness program.
Although collaboration with parent advocacy groups or other community
agencies regarding public awareness is not specifically mentioned in
the Act or these regulations, there is nothing in the Act or these
regulations that prevents a State from collaborating with other
community resources to disseminate public awareness materials beyond
primary referral sources. We do not mandate that public awareness
materials be distributed to all parent advocacy groups or community
agencies in these regulations because each State needs the flexibility
to tailor its public awareness programs to the population of infants
and toddlers with disabilities who may be eligible in that State (e.g.,
a State that serves at-risk infants and toddlers may target specific
agencies). This approach will allow States to create and implement a
public awareness program that includes the appropriate and necessary
components to effectively meet State-specific needs.
Changes: None.
Comment: Some commenters recommended including the notes from
current Sec. 303.320, regarding a system's public awareness program,
in new Sec. 303.301 (proposed Sec. 303.300) because these notes
provided clarity to lead agencies.
Discussion: New Sec. 303.301 (proposed Sec. 303.300) is
consistent with section 635(a)(6) of the Act, which describes the
requirements of a public awareness program. Notes 1 and 2 following
current Sec. 303.320 describe the components of an effective public
awareness program and provide examples of methods for informing the
general public about the provisions of this part. We do not wish to
make the substance of these notes regulatory requirements because we do
not want to limit State flexibility to create a public awareness
program that meets State-specific needs.
While we have not incorporated the notes as requirements in the
regulations, we continue to believe that an effective public awareness
system is one that involves an ongoing effort that is in effect
throughout a State, including rural areas; provides for the involvement
of, and communication with, major organizations throughout a State that
have a direct interest in this part, including public agencies at the
State and local level, private providers, professional associations,
parent groups, advocate associations, and other organizations; has
coverage broad enough to reach the general public, including those who
have disabilities; and includes a variety of methods for informing the
public about the provisions of this part. Methods for informing the
public continue to include the use of printed materials, television,
radio, and the Internet, but may also include other appropriate methods
in a particular State. For these reasons, we decline to revise new
Sec. 303.301 (proposed Sec. 303.300) as requested by the commenter.
Changes: None.
Comment: One commenter recommended adding a reference to other
family members after each mention of parents in this section.
Discussion: New Sec. 303.301 (proposed Sec. 303.300) tracks the
language in section 635(a)(6) of the Act, regarding disseminating
information about available early intervention services to parents of
infants and toddlers with disabilities. While family members--other
than parents--may voluntarily participate in a family assessment, may
be invited by a parent to participate in IFSP meetings, and may be
included when early intervention services are provided, the parent of
an infant or toddler is ultimately responsible for making decisions
under these regulations. The term parent is broad enough to encompass
not just the biological or adoptive parent but other individuals who
meet the definition in Sec. 303.27. Additionally, nothing in these
regulations prevents the lead agency from disseminating its public
awareness materials through primary referral sources to other family
members. Therefore, it is the Department's position that not extending
this requirement to other family members of infants and toddlers with
disabilities is appropriate.
Changes: None.
Comment: Two commenters requested clarification of new Sec.
303.301(c) (proposed Sec. 303.300(b)(4)), which required the lead
agency to provide parents of toddlers who are nearing transition age
with a description of the availability of services under section 619 of
the Act. These commenters questioned when this description must be
provided and whether providing it when a toddler is two years and four
months of age would meet the requirement to provide information at
least nine months prior to a child's third birthday in new Sec.
303.301(c) (proposed Sec. 303.300(b)(4)).
[[Page 60186]]
One commenter stated that the public awareness requirement in new
Sec. 303.301(c) (proposed Sec. 303.300(b)(4)) should be the
responsibility of public agencies responsible for implementing part B
of the Act and should be a collaborative effort between the State part
B and C agencies and local part B programs to ensure that all parents
and families are fully informed of the availability of services under
section 619 of the Act.
Discussion: We agree that, as written, proposed Sec. 303.300(b)(4)
did not provide sufficient clarification regarding when, and to whom, a
description of the availability of services under section 619 of the
Act must be provided. Accordingly, we have revised new Sec. 303.301(c)
(proposed Sec. 303.300(b)(4)) to specify that each public awareness
program must include a requirement that the lead agency provide for
informing parents of toddlers with disabilities of the availability of
preschool services under section 619 of the Act not fewer than 90 days
prior to the child's third birthday. We have removed the reference to
``toddlers with disabilities nearing transition age'' and instead
clarified the timeline by which the information must be provided. We
have revised this timeline so that it is consistent with the timelines
for LEA notification and other transition requirements in Sec.
303.209.
In response to the specific comment asking whether providing public
awareness under new Sec. 303.301(c) (proposed Sec. 303.300(b)(4)) to
parents when their toddler reaches two years and four months of age
would be in compliance with this requirement, it would be in compliance
under the revised requirement because each lead agency must ensure that
information about preschool services under section 619 of the Act is
provided to parents of toddlers with disabilities not fewer than 90
days prior to the toddler's third birthday.
Concerning the comment that the public awareness requirement should
be the responsibility of the part B State or local public agencies,
section 635(a)(6) of the Act was revised in 2004 to require that the
lead agency prepare and disseminate information about preschool
services under section 619 of the Act. SEAs and LEAs have child find
responsibilities as defined in sections 612 and 619 under part B of the
Act. The requirement in new Sec. 303.301(c) (proposed Sec.
303.300(b)(4)) reflects the lead agency's responsibilities under
sections 635(a)(6) and 637(a)(9) of the Act to ensure that information
about part B preschool services is available to parents of all toddlers
with disabilities exiting the part C program, not just those toddlers
who have been determined by the lead agency to be potentially eligible
under part B of the Act.
Concerning the commenter's request to require collaboration between
the State and local part B and part C agencies, adding this requirement
is unnecessary because, under new Sec. 303.302(c) (proposed Sec.
303.301(c)), the lead agency, with the assistance of the Council, must
ensure that its child find system under part C of the Act is
coordinated with the State's child find efforts under part B of the
Act.
Changes: We have revised new Sec. 303.301(c) (proposed Sec.
303.300(b)(4)) to specify that each public awareness program must
include a requirement that the lead agency provide for informing
parents of toddlers with disabilities of the availability of preschool
services under section 619 of the Act not fewer than 90 days prior to
the child's third birthday. Additionally, because we have clarified
that parents must be provided with this information not fewer than 90
days prior to their toddler's third birthday, we have deleted the
parenthetical ``starting at least nine months prior to the child's
third birthday.''
Comprehensive Child Find System (New Sec. 303.302) (Proposed Sec.
303.301)
Comment: None.
Discussion: To reflect the varied administrative structures of
different part C child find systems and the revised definitions of
public agency and EIS provider in Sec. Sec. 303.30 and 303.12,
respectively, we have replaced the reference to ``public agencies''
with ``lead agencies or EIS providers'' in new Sec. 303.302(a)(2)
(proposed Sec. 303.301(a)(2)), regarding the child find system
including a system for making referrals to lead agencies and EIS
providers.
Changes: We have replaced the reference to ``public agencies,'' in
new Sec. 303.302(a)(2) (proposed Sec. 303.301(a)(2)), with a
reference to ``lead agencies or EIS providers''.
Comment: A few commenters requested that the Department define the
term ``rigorous,'' as that term is used to modify ``standards for
appropriately identifying infants and toddlers with disabilities under
this part that will reduce the need for future services'' in new Sec.
303.302(a)(3) (proposed Sec. 303.301(a)(3)). These commenters asked
the Department to provide specific guidance on how to define this term
to avoid arbitrary and conflicting applications of the standards.
Discussion: New Sec. 303.302(a)(3) (proposed Sec. 303.301(a)(3)),
consistent with section 635(a)(5) of the Act, requires that each
State's part C child find system include rigorous standards for
appropriately identifying infants and toddlers with disabilities for
early intervention services that reduce the need for future services.
We interpret the term ``rigorous'' in this section to mean that the
State has obtained public (including stakeholder) input on its child
find system policies and procedures that are required in Sec. Sec.
303.101(a)(2), 303.115, and 303.116. Requiring public input ensures
that stakeholders who have an interest in the development of a State's
child find system, including parents of infants and toddlers with
disabilities, EIS providers, Council members, and other stakeholders,
have adequate opportunity to comment on, and inform, the decision-
making process regarding a State's child find policies and procedures.
Changes: None.
Comment: A few commenters recommended removing the phrase ``that
will reduce the need for future services'' from new Sec. 303.302(a)(3)
(proposed Sec. 303.301(a)(3)), which requires each State's child find
system to include rigorous standards for appropriately identifying
infants and toddlers with disabilities for early intervention services
that will reduce the need for future services. These commenters stated
that eligible infants and toddlers should have access to necessary
early intervention services regardless of whether the lead agency or
EIS provider expects the early intervention services to reduce a
child's need for future services.
Discussion: New Sec. 303.302(a)(3) (proposed Sec. 303.301(a)(3))
incorporates statutory language from section 635(a)(5) of the Act and
reflects the finding in section 631(a)(2) that there is an urgent and
substantial need to reduce the educational costs to our society,
including our nation's schools, by minimizing the need for special
education and related services after infants and toddlers with
disabilities reach school age. Thus, new Sec. 303.302(a)(3) (proposed
Sec. 303.301(a)(3)) does not require a determination as to whether a
specific infant or toddler with a disability will or will not require
future services, but rather reflects one of the critical findings
underlying part C of the Act.
Changes: None.
Comment: None.
Discussion: We have made a minor change to new Sec.
303.302(b)(1)(i) (proposed Sec. 303.301(b)(1)(i)) to clarify
[[Page 60187]]
that the coordination with tribes, tribal organizations, and consortia
is for the purpose of identifying infants and toddlers with
disabilities in the State based, in part, on the information provided
by these entities to the lead agency under Sec. 303.731(e)(1).
Changes: We have revised the parenthetical in new Sec.
303.302(b)(1)(i) (proposed Sec. 303.301(b)(1)(i)) by adding the words
``to identify infants and toddlers with disabilities in the State
based, in part, on'' before the words ``the information provided.''
Comment: Many commenters supported retaining the requirement from
current Sec. 303.321(b)(2), which requires that an effective method be
developed and implemented to determine which children are receiving
needed early intervention services. However, these commenters strongly
opposed the requirement in proposed Sec. 303.301(b)(2) to have an
effective method to determine which children are not in need of early
intervention services. The commenters argued that this is not a
statutory requirement and would add significant burden to lead
agencies.
Discussion: We agree with the commenters that child find efforts
under part C of the Act should focus on identifying infants and
toddlers with disabilities who are potentially eligible for, or in need
of, early intervention services and not those who are not potentially
eligible for such services. Therefore, we have removed the requirement
that lead agencies must determine which children are not in need of
services in new Sec. 303.302(b)(2) (proposed Sec. 303.301(b)(2)).
Changes: We removed the phrase ``and which children are not in need
of those services'' in new Sec. 303.302(b)(2) (proposed Sec.
303.301(b)(2)).
Comment: None.
Discussion: Proposed Sec. 303.301(c)(1)(ii)(G) identified ``child
protection programs, including programs administered by, and services
provided through, the foster care agency * * *'' as one of the programs
that the lead agency must ensure that it coordinates with when
implementing its child find responsibilities. However, child welfare
programs, such as the foster care system, and child protection programs
are two different programs and in some States are not in the same
system. Therefore, we have clarified in new Sec. 303.302(c)(1)(ii)(G)
(proposed Sec. 303.301(c)(1)(ii)(G)) that lead agencies must
coordinate child find activities with both child protection and child
welfare programs.
Changes: We have added the words ``and child welfare'' after the
words ``child protection'' in new Sec. 303.302(c)(1)(ii)(G) (proposed
Sec. 303.301(c)(1)(ii)(G)).
Comment: None.
Discussion: As previously stated in the Analysis of Comments and
Changes section for subpart C of these regulations, upon further
review, the Department has determined that it is not appropriate to
limit either coordination with, or referrals from, the programs that
provide services under the Family Violence Prevention and Services Act
in new Sec. 303.302(c)(1)(ii)(A) (proposed Sec. 303.301(c)(1)(ii)(I))
and Sec. 303.303(c)(11) (proposed Sec. 303.302(c)(11)). Therefore, we
have removed the following language ``(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.)'' from new Sec. 303.302(c)(1)(ii)(A) (proposed Sec.
303.301(c)(1)(ii)(I)) and Sec. 303.303(c)(11) (proposed Sec.
303.302(c)(11)).
Changes: We have removed the parenthetical referencing section
635(c)(2)(G) of the Act and Sec. 303.211 from new Sec.
303.302(c)(1)(ii)(A) and Sec. 303.303(c)(11).
Comment: Several commenters recommended adding the Children's
Health Insurance Program (CHIP) to the list of programs with which the
lead agency must coordinate its child find activities in new Sec.
303.302(c)(1)(ii) (proposed Sec. 303.301(c)(1)(ii)) because many
children with disabilities participate in CHIP. A few commenters
requested adding State Early Hearing Detection and Intervention (EHDI)
systems to this list as well.
Discussion: We agree with commenters that coordinating with the
CHIP programs and State Early Hearing Detection Intervention (EHDI)
systems can assist the lead agency in its child find responsibilities
to identify infants and toddlers with disabilities. The addition of
these two programs in the child find coordination provision in new
Sec. 303.302(c)(1)(ii) does not mean that these entities are
``participating agencies'' under Sec. 303.403 if they function as
primary referral sources or funding sources, but do not otherwise meet
the definition of participating agency in Sec. 303.403.
CHIP is authorized under Title XXI of the Social Security Act and
each State determines the level of income eligibility and available
health benefits for children. In many States, CHIP benefits are
combined with benefits under Medicaid (Title XIX of the Social Security
Act). Requiring the lead agency to coordinate its child find efforts
with the CHIP program ensures nonduplication of Federal and State funds
and efforts to provide needed health services to eligible children.
Each State has a State EHDI program, which is responsible for
creating a system of newborn hearing screening, follow-up, audiological
diagnosis (for those who do not pass screening), and intervention (for
those who are identified with hearing loss). Recent data indicate that
55 percent of State EHDI programs never or rarely notify the part C
statewide system about infants who have failed their final hearing
screening. (National Center for Hearing Assessment and Management, The
Impact of Privacy Regulations, May 2008, available at http://www.infanthearing.org) By adding the State EHDI program in Sec.
303.302(c)(1)(ii), we acknowledge that coordination between the State
EHDI program and the statewide child find system can play a critical
role in the referral of children from the EHDI program to the part C
program to identify children potentially eligible for part C early
intervention services, including infants and toddlers who are deaf or
hard of hearing. Therefore, we have added CHIP and EHDI to the programs
listed in new Sec. 303.302(c)(1)(ii) (proposed Sec.
303.301(c)(1)(ii)).
Nothing precludes the State lead agency from coordinating with
additional appropriate entities in the State, such as Grant-Supported
Federally Qualified Health Centers (``FQHCs''), which include Community
Health Centers and Healthcare for the Homeless Programs, see 42 U.S.C.
Sec. Sec. 254b(a), 1396a(a)(10)(A), 1396d(a)(2)(C); the Temporary
Assistance for Needy Families (TANF) Program, see 42 U.S.C. Sec. Sec.
601 et seq.; the supplemental nutrition program for Women, Infants and
Children (WIC), see 42 U.S.C. Sec. Sec. 1786 et seq.; and the
Supplemental Nutrition Assistance Program (``SNAP'') (formerly the
Federal Food Stamp program), see 7 U.S.C. 2011 et seq. Some of these
programs may serve as primary referral sources. We note that some
States have adopted a centralized intake center for families for many
State health, social welfare, public assistance, and other programs
that target the health and welfare of children and families and that
the part C early intervention program may be included in such an intake
center.
Changes: We have added new paragraphs (J) and (K) to new Sec.
303.302(c)(1)(ii) to include EHDI and CHIP among the programs with
which the lead agency must coordinate its child find activities.
[[Page 60188]]
Comment: None.
Discussion: To provide consistency between the lead agency's
responsibilities to ensure non-duplication of child find efforts in new
Sec. 303.302(c)(2)(i) (proposed Sec. 303.301(c)(2)(i)) and child find
coordination in new Sec. 303.302(c)(1)(ii) (proposed Sec.
303.301(c)(1)(ii)), we have replaced, in new Sec. 303.302(c)(2)(i)
(proposed Sec. 303.301(c)(2)(i)), the broad reference to various
agencies with a reference to the specific programs identified in new
Sec. 303.302(c)(1)(ii) (proposed Sec. 303.301(c)(1)(ii)), with which
the lead agency must coordinate its child find efforts.
Changes: We have replaced in new Sec. 303.302(c)(1)(ii) (proposed
Sec. 303.301(c)(2)(i)) the phrase ``various agencies involved in the
State's child find system under this part'' with ``programs identified
in paragraph (c)(1)(ii) of this section.''
Comment: One commenter requested clarification on why the reference
to public agency was deleted from new Sec. 303.302(c)(1)(ii) (proposed
Sec. 303.301(c)(2)(ii)), concerning the requirement that the State
make use of each EIS provider in implementing child find in an
effective manner. Another commenter disagreed with the language in
proposed Sec. 303.301(c)(2)(ii) because public agencies that provide
services to young children are critical to the child find system and
these public agencies should be expressly referenced and continue to be
an active part of the child find system. Both commenters recommended
that current Sec. 303.321(c)(2)(ii) be retained.
Discussion: Current Sec. 303.321(c)(2)(ii), regarding coordination
efforts, provides that the lead agency make use of the resources
available through each public agency in the State to implement child
find in an effective manner. We added in new Sec. 303.302(c)(2)(ii)
(proposed Sec. 303.301(c)(2)(ii)) a reference to EIS providers because
of the revised definitions of EIS providers and public agencies. We
agree with the commenters that the reference to public agencies should
be reinstated and also have added that reference.
Changes: We have added the words ``each public agency'' to the
reference to ``EIS provider in the State'' to new Sec.
303.302(c)(2)(ii) (proposed Sec. 303.301(c)(2)(ii)).
Referral Procedures (New Sec. 303.303) (Proposed Sec. 303.302)
Comment: None.
Discussion: We have made a technical edit to new Sec.
303.303(a)(1) (proposed Sec. 303.302(a)(1)) to clarify that the
referral procedures that lead agencies must provide to primary referral
sources are the State's procedures for referring a child under the age
of three to the part C program.
Changes: We have added the word ``State's'' before the word
``procedures'' in Sec. 303.303(a)(1) (proposed Sec. 303.302(a)(1)).
Comment: Many commenters supported removing current Sec.
303.321(d)(2)(ii), which required primary referral sources to refer a
child to the part C program within two working days of the child's
identification. The commenters stated that because the two-day timeline
was not enforceable by lead agencies, they supported the language in
proposed Sec. 303.302(a)(2)(i) that requires referrals be made as soon
as possible. These commenters stated that requiring primary referral
sources to refer identified children as soon as possible would provide
States with the flexibility to establish or maintain more stringent
reporting requirements on primary referral sources, while acknowledging
the difficulties associated with monitoring the adherence of thousands
of primary referral sources to a Federal standard.
A significant number of commenters, however, opposed the language
in proposed Sec. 303.302(a)(2)(i) and recommended retaining the two-
day timeline for referrals in current Sec. 303.321(d)(2)(ii). These
commenters expressed concern that the proposed timeline, i.e., as soon
as possible, threatens to introduce long delays into part C referral,
evaluation, and program implementation processes. Other commenters
proposed that the regulations retain the phrase ``as soon as
possible,'' but qualify it with a maximum timeline. Commenters proposed
a variety of maximum timelines, ranging from three business days to ten
business days.
Discussion: We agree with the commenters who expressed concern that
requiring primary referral sources to refer an identified child to the
part C program ``as soon as possible'' could introduce undue delays
into the part C referral process. Although enforcement of the timeline
in current Sec. 303.321(d)(2)(ii), which requires primary referral
sources to refer a child to the part C system within two working days
of the child's identification, has been a challenge for lead agencies,
requiring referrals to be made ``as soon as possible'' may be more
difficult to enforce than the two-day timeline. We believe it is
appropriate to retain the phrase ``as soon as possible'' because it
conveys a sense of urgency that referrals be made to the part C program
in a timely manner. Therefore, we have retained the ``as soon as
possible'' language and added a maximum timeline to new Sec.
303.303(a)(2)(i) (proposed Sec. 303.302(a)(2)(i)) to require that a
child be referred as soon as possible, but in no case more than seven
days, after the child has been identified. We realize that in some
cases an earlier referral may be reasonable, but establishing a maximum
timeline of seven days provides more flexibility to primary referral
sources for making referrals than the timeline under current Sec.
303.321(d)(2)(ii). Moreover, the new timeline requires primary referral
sources to refer children as soon as possible.
Changes: We have revised new Sec. 303.303(a)(2)(i) (proposed Sec.
303.302(a)(2)(i)) to require primary referral sources to refer a child
to the part C program as soon as possible, but in no case more than
seven calendar days after the child has been identified.
Comment: One commenter opposed the requirement in proposed Sec.
303.302(b) that the lead agency adopt procedures requiring the referral
of specific at-risk children. The commenter stated that this provision
does not reflect congressional intent to ensure that these children are
screened, either by a designated primary referral source or EIS
provider, to determine whether a referral for an evaluation for early
intervention services under part C of the Act is warranted.
Discussion: The language in new Sec. 303.303(b) (proposed Sec.
303.302(b)) is based on the statutory language in section 637(a)(6) of
the Act, regarding the referral of a child under the age of 3 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.
As noted by the commenter, lead agencies may use a variety of
methods to ensure the identification of specific at-risk infants and
toddlers who may be infants and toddlers with disabilities eligible for
services under part C of the Act. Under new Sec. 303.320 (proposed
Sec. 303.303), the lead agency may establish screening procedures for
children under the age of three, including at-risk infants and
toddlers, who have been referred to the part C program. Primary
referral sources also may choose to conduct screenings of at-risk
infants and toddlers prior to referring a child to the part C program
under new Sec. 303.303 (proposed Sec. 303.302). If a primary referral
source conducts a screening under the supervision of the lead agency in
order
[[Page 60189]]
to determine if a child is suspected of having a disability, such
screening procedures must meet the requirements in new Sec. 303.320
(proposed Sec. 303.303).
The lead agency may use interagency agreements or other methods to
coordinate with primary referral sources, such as the State agency that
administers the Child Abuse Prevention and Treatment Act (CAPTA), to
conduct child find and ensure identification of at-risk infants and
toddlers who may be eligible for services under part C of the Act. The
screening procedures in new Sec. 303.320 (proposed Sec. 303.303) are
consistent with section 637(a)(6) of the Act and the policy, reflected
in the legislative history cited by the commenter, that not every child
referred to the part C program must be evaluated. Therefore, we decline
to revise the regulations as requested by the commenter.
Changes: None.
Comment: One commenter requested clarification of the scope of the
phrase ``affected by illegal substance abuse'' in new Sec. 303.303(b)
(proposed Sec. 303.302(b)). Specifically, the commenter asked who must
be referred for early intervention services under this provision.
Discussion: The language ``affected by illegal substance abuse'' in
new Sec. 303.303(b) (proposed Sec. 303.302(b)) is from section
637(a)(6)(B) of the Act, which requires children who are ``affected by
illegal substance abuse'' to be referred to the part C program. The
policy for requiring the referral of children under the age of three
who have been directly affected by illegal substance abuse is that
there is a likelihood that these children may experience developmental
delays and thus be eligible for early intervention services under part
C of the Act. We have clarified the phrase ``affected by illegal
substance abuse'' by adding the term ``directly'' because we agree that
the statutory language is vague. This change is consistent with our
addition of the term ``directly'' in Sec. 303.211(b)(7) regarding
referral of a child under the age of three who directly experiences a
substantiated case of trauma due to exposure to family violence.
Changes: We have added the term ``directly'' before the words
``affected by illegal substance abuse'' in new Sec. 303.303(b)(2)
(proposed Sec. 303.302(b)(2)).
Comment: Some commenters requested that the Department mandate that
child find systems provide for the referrals of children under the age
of three who have been abandoned; affected by alcohol abuse, including
prenatal alcohol exposure; or exposed to family violence or dangerous
levels of lead paint. At a minimum, these commenters recommended that
these regulations include these children as examples of children who
should be referred to the part C program.
Discussion: Section 637(a) of the Act only requires 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. While not required
under the Act, a State may choose to require the referral for
evaluation of the children identified by the commenter (i.e., those who
have been abandoned, affected by alcohol abuse, including prenatal
alcohol exposure; or exposed to family violence or dangerous levels of
lead paint). However, we do not wish to limit a State's flexibility to
assess the unique needs in the State, and identify accordingly, other
subgroups that may be determined to be at-risk and require a referral
for evaluation. Thus, we decline to revise the regulations as requested
by the commenter.
Changes: None.
Comment: A few commenters opposed new Sec. 303.303(b)(1) (proposed
Sec. 303.302(b)(1)), which requires the referral of a child under the
age of three who is involved in a substantiated case of child abuse or
neglect. One commenter stated that this requirement is vague and
inconsistent with the explanation provided in the preamble to the NPRM
that, under this section and consistent with CAPTA requirements, a
referral to the part C program would only be for the child who is the
subject of the substantiated proceeding. The commenters requested that
new Sec. 303.303(b)(1) (proposed Sec. 303.302(b)(1)) clarify that the
referral requirements in that section would not apply, for example, to
a sibling (under the age of three) of a child who had been the subject
of a substantiated case of child abuse or neglect unless that sibling
also had been the subject of a substantiated case of child abuse or
neglect. Another commenter expressed concern that Federal funding is
insufficient to address the potential increase in referrals of children
under CAPTA.
Discussion: We agree with the commenters that the language
``involved in a substantiated case of child abuse or neglect'' in
section 637(a)(6)(A) and new Sec. 303.303(b) (proposed Sec.
303.302(b)(1)) is vague. This provision is consistent with 42 U.S.C.
5106a of 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 the subject
of a substantiated case of child abuse or neglect. The Department
consulted with the U.S. Department of Health and Human Services (HHS),
which administers CAPTA, and determined that our interpretation of this
provision in section 637(a)(6)(A) of the Act is consistent with HHS's
view that neither part C of the Act nor CAPTA requires the referral of
a child other than a child who is the subject of a proceeding resulting
in a substantiated case of child abuse or neglect. For this reason, we
have revised the regulatory language in new Sec. 303.303(b)(1)
(proposed Sec. 303.302(b)(1)) to refer to a child under the age of
three who ``is the subject'' of a substantiated case of child abuse or
neglect. Additionally, we do not interpret the statutory language or
new Sec. 303.303(b)(1) (proposed Sec. 303.302(b)(1)) to require a
sibling (under the age of three) to be referred or screened unless that
sibling is a child under the age of three who also has been the subject
of a substantiated case of child abuse or neglect. Given that we have
narrowed the scope of children to be referred to the part C program
under new Sec. 303.303(b)(1) (proposed Sec. 303.302(b)), the
potential burden is decreased to States, which may currently receive
referrals of all children (such as a sibling or step-sibling) who are
involved in a substantiated case of child abuse or neglect.
Changes: The phrase ``involved in'' in new Sec. 303.303(b)(1)
(proposed Sec. 303.302(b)(1)) has been changed to ``the subject of.''
Comment: One commenter noted, with respect to new Sec.
303.303(b)(2) (proposed Sec. 303.302(b)(2)), that section
106(b)(2)(A)(xxii) of CAPTA does not require referral to part C
services of children under the age of three who are affected by illegal
substance abuse or withdrawal symptoms resulting from prenatal drug
exposure. This commenter requested that the Department clarify this
fact in the preamble to these regulations.
Discussion: Section 303.303(b)(2) reflects the requirement in
section 637(a)(6)(B) of the Act that each State's part C application
include policies and procedures requiring the referral for early
intervention services of a child under the age of three who is
identified as affected by illegal substance abuse or withdrawal
symptoms resulting from prenatal drug exposure. Section
106(b)(2)(A)(xxii) of CAPTA, however, requires that each State that
receives CAPTA funds assure that it has policies and procedures
(including appropriate
[[Page 60190]]
referrals to child protection service systems and for other appropriate
services) to address the needs of infants born and identified as being
affected by illegal substance abuse or withdrawal symptoms resulting
from prenatal drug exposure. Thus, while the language of CAPTA differs
from the language of section 637(a)(6)(B) of the Act, Sec.
303.303(b)(2) reflects the appropriate requirement under the Act.
Changes: None.
Comment: One commenter recommended clarifying that the list of
primary referral sources in new Sec. 303.303(c) (proposed Sec.
303.302(c)) is not an inclusive list and that a lead agency may include
other primary referral sources in its child find system. Additionally,
two commenters recommended adding McKinney-Vento ``local educational
agency liaisons,'' as defined in 42 U.S.C. 11432(g)(6), as primary
referral sources along with LEAs and schools in new Sec. 303.303(c)(5)
(proposed Sec. 303.302(c)(5)).
Discussion: We agree with the commenter that new Sec. 303.303(c)
(proposed Sec. 303.302(c)) is intended to be a non-exhaustive list of
primary referral sources and that a lead agency may include other
primary referral sources in its child find system. The term include, as
defined in Sec. 303.18 and used in the introductory text in new Sec.
303.303(c) (proposed Sec. 303.302(c)), means that the items named are
not all of the possible items that are covered, whether like or unlike
the ones named.
We decline to add McKinney-Vento local educational agency liaisons,
as defined in 42 U.S.C. 11432(g)(6), to new Sec. 303.303(c)(5)
(proposed Sec. 303.302(c)(5)), as requested, because these liaisons
work with LEAs and school-age children--not children under the age of
three--and, therefore, coordination with these liaisons is not required
for programs under part C of the Act. Nothing in the Act or these
regulations would preclude a lead agency from coordinating with the
McKinney-Vento local educational agency liaisons, as defined in 42
U.S.C. 11432(g)(6), if it determines such coordination is appropriate.
Changes: None.
Comment: One commenter recommended changing the reference to day
care programs in new Sec. 303.303(c)(4) (proposed Sec. 303.302(c)(4))
to child care and early learning programs.
Discussion: We agree that day care should be changed to child care
because this term reflects the current terminology of the field. We
also agree that early learning programs should be included in the list
of primary referral sources. While the list in new Sec. 303.303(c)
(proposed Sec. 303.302(c)) includes schools, some early learning
programs, such as Early Head Start, may not always be included in this
category. To ensure all early learning programs are included as
referral sources we have added early learning programs to new Sec.
303.303(c) (proposed Sec. 303.302(c)).
Changes: We have changed the term ``day care programs'' to ``child
care programs'' and added ``early learning programs'' in new Sec.
303.303(c)(4) (proposed Sec. 303.302(c)(4)).
Comment: None.
Discussion: To clarify that primary referral sources may include
not only public health facilities and other social service agencies,
but also public health agencies that are neither public health
facilities nor social service agencies, we have added a reference to
public health agencies in new Sec. 303.303(c)(7) (proposed Sec.
303.302(c)(7)). For example, other public health or social service
agencies may include the Maternal, Infant, and Early Childhood Home
Visiting Program, under Title V of the Social Security Act, as amended,
or the Early Hearing Detection and Intervention (EHDI) systems
administered by the Centers for Disease Control.
Changes: We have added the phrase ``public health or'' before the
words ``social service agencies'' in new Sec. 303.303(c)(7) (proposed
Sec. 303.302(c)(7)).
Forty-Five Day Timelines (New Sec. 303.310) (Proposed Sec.
303.320(e))
Comment: We received a large number of comments, questions, and
recommendations regarding the 45-day timeline requirement in proposed
Sec. 303.320(e) that lead agencies complete the initial evaluation,
the initial assessments, and the initial IFSP meeting within 45 days
from parental consent for the initial evaluation.
Many commenters supported proposed Sec. 303.320(e), which stated
that the evaluation, assessment, and initial IFSP meeting must be
completed within 45 days from the date the lead agency obtains parental
consent for the child's evaluation. These commenters preferred this
timeline to the 45-day timeline in current Sec. 303.322(e), which
commences not on the date the lead agency obtains parental consent, but
rather on the date it receives the referral of the child. These
commenters argued that, given the complexity of the post-referral
process, adding more time to the period between referral and the
initial IFSP meeting was appropriate.
A few commenters recommended that, if the Department adopted
proposed Sec. 303.320(e), the Department should add a separate
timeline for the time period between referral and when the lead agency
must obtain parental consent and suggested timelines for this period
ranging from 2 to 30 days or ``as soon as possible.''
Many other commenters opposed the 45-day timeline in proposed Sec.
303.320(e). These commenters expressed concern that having the 45-day
timeline triggered by the date the lead agency obtains parental
consent, rather than the date the lead agency receives the child's
referral, could result in significant delays in getting infants and
toddlers with disabilities the early intervention services they need.
These commenters argued that proposed Sec. 303.320(e)(ii), which
stated that lead agencies must obtain parental consent as soon as
possible once a child is referred to a lead agency, would be an
inadequate protection if adopted because it would allow an undetermined
and unregulated period of time between the child's referral and
parental consent, and could delay the completion of initial
evaluations, initial assessments, and initial IFSP meetings. These
commenters expressed concern that proposed Sec. 303.320(e) would
result in less accountability for lead agencies because, under that
provision, the lead agencies could control--to a large extent--when
they obtained parental consent for evaluation and thus when the 45-day
timeline would commence.
These commenters further argued that the Department should not
adopt the timeline in proposed Sec. 303.320(e) and that it should
instead retain the timeline reflected in current Sec. 303.322(e),
which requires the public agency to complete the evaluation and
assessment activities and hold an IFSP meeting within 45 days from the
date the public agency receives the child's referral. For these
commenters, beginning the 45-day timeline from the date the public
agency receives the child's referral is preferable because it promotes
accountability for lead agencies; the triggering event for the timeline
is something outside of a lead agency's control. Moreover, commenters
argued that beginning the 45-day timeline from the date of referral
will help ensure that children receive services within a shorter
timeframe. Some of the commenters that supported triggering the
required timeline from the date of referral recommended that the length
of the timeline be changed; they suggested alternative timelines,
ranging from 30 days from referral to 75 days from referral.
Finally, a few commenters recommended that these regulations not
include any timeline. These
[[Page 60191]]
commenters argued that each State should have the flexibility to
establish its own timeline to complete the post-referral activities
through the initial IFSP meeting; they argued that this flexibility
would be similar to the flexibility offered in the evaluation timeline
under 34 CFR 300.301(c)(1)(ii) to conduct an evaluation to determine
eligibility for the part B program.
Discussion: After much review and careful consideration of the many
and divergent opinions on the 45-day timeline, we have determined that
it is appropriate to retain in new Sec. 303.310(a) the 45-day timeline
from the date of the child's referral as reflected in current Sec.
303.321(e), but to provide for limited exceptions when the 45-day
timeline will not apply. Data from Federal fiscal year (FFY) 2006 State
part C SPP/APRs indicate that many States have made significant
progress toward meeting the current 45-day timeline requirement. The
Department's position is that maintaining this standard in new Sec.
303.310(a)--combined with the flexibility offered by the two exceptions
incorporated in new Sec. 303.310(b)--will help States continue to
ensure timely initial evaluations, initial assessments, and initial
IFSP meetings when children are referred to the part C program without
unduly burdening lead agencies and EIS providers.
We believe that having the 45-day timeline in new Sec. 303.310(a)
commence on the date of referral, rather than on the date the lead
agency or EIS provider obtains parental consent for the initial
evaluation, ensures accountability, consistency, and predictability,
and it is easier for States and parents to implement and track. More
importantly, we are persuaded that this timeline will result in fewer
delays in infants and toddlers with disabilities receiving early
intervention services as quickly as possible after being referred. For
these reasons, we have incorporated the 45-day timeline, commencing
from referral, in new Sec. 303.310. For clarity, we have revised the
language in this section to ensure that the timeline applies to both
lead agencies and EIS providers because EIS providers as well as lead
agencies implement these requirements and conduct initial evaluations,
initial assessments, and initial IFSP meetings.
As we noted in the NPRM, however, we fully appreciate that a lead
agency or EIS provider may not be able to comply with the 45-day
timeline because of exceptional family circumstances that are beyond
its control. For example, as we noted in the NPRM, a lead agency or EIS
provider cannot meet the 45-day timeline from the date of referral
without parental consent for initial evaluations and initial
assessments. Moreover, delays in obtaining parental consent may
drastically reduce the time available for the lead agency or EIS
provider to perform the initial evaluation and initial assessments and
prepare for the initial IFSP meeting. Rather than attempting to address
these concerns by commencing the 45-day timeline from the date the lead
agency or EIS provider obtains parental consent, it is more appropriate
to address these concerns by providing for limited exceptions in new
Sec. 303.310(b) to clarify when the 45-day timeline in new Sec.
303.310(a) would not apply.
We have described in new Sec. 303.310(b) two specific
circumstances when the 45-day timeline would not apply. First, as noted
in new Sec. 303.310(b)(1), there may be periods of time when the child
or parent is unavailable to complete the screening, if applicable; the
initial evaluation; the initial assessment of the child; the initial
assessment of the family; or the initial IFSP meeting due to
exceptional family circumstances that are documented in the child's
early intervention records. To clarify that it is only the
unavailability of the child or parent (and not other family members)
that determines the availability of this exception, we have added new
Sec. 303.310(d) to ensure that the family assessment is completed
within the 45-day timeline, if the parent concurs, as long as the
parent is available.
The second exception to the 45-day timeline is set forth in new
Sec. 303.310(b)(2), which provides that if the parent has not provided
consent for the screening (if the State has adopted a policy to conduct
screenings and elects to conduct a screening of that child), initial
evaluation, or initial assessment of the child despite documented,
repeated attempts by the lead agency or EIS provider to obtain parental
consent, then the 45-day timeline would not apply. We have not included
the family assessment or the initial IFSP meeting in this second
exception because, while the family assessment is voluntary on the part
of any family member who participates in it and the initial IFSP
meeting must be scheduled at a time convenient to the family, there are
no express written consent requirements for conducting the family
assessment and initial IFSP meeting.
To ensure that these exceptions are not absolute, we have added a
new requirement in Sec. 303.310(c) to clarify that the lead agency or
EIS provider must complete the screening, if applicable; initial
evaluation; initial assessments; and initial IFSP meeting as soon as
possible after the circumstances described in new Sec. 303.310(b) no
longer exist or parental consent is obtained. We believe that the
availability of the two limited exceptions to the 45-day timeline in
new Sec. 303.310(b) creates flexibility and reduces burdens for lead
agencies and EIS providers. Coupling these exceptions with a 45-day
timeline commencing on the date of the child's referral to the part C
program in new Sec. 303.310(a) creates a clear and enforceable
timeline that ensures accountability for timely identification,
evaluations, assessments, and IFSP meetings for infants and toddlers
with disabilities.
Additionally, to further protect children affected by circumstances
described in new Sec. 303.310(b)(1) and (b)(2), we have added new
Sec. 303.310(c)(3) to clarify that the lead agency must have
procedures to ensure that the lead agency or EIS provider develop and
implement an interim IFSP to the extent appropriate and consistent with
Sec. 303.345 in the event of the circumstances described in Sec.
303.310(b).
With regard to the comments recommending that we lengthen or remove
the 45-day timeline in new Sec. 303.310(a) (proposed Sec.
303.320(e)), we decline to do so because lengthening or removing the
timeline would not create the same level of accountability for ensuring
timely evaluations and assessments and IFSP development for infants and
toddlers with disabilities. Given the rapid developmental changes in
this age group of children, it is essential that lead agencies and EIS
providers evaluate, assess, and provide early intervention services to
those in need as soon as possible. We also decline to shorten the 45-
day timeline, as requested by some commenters, because we are not
convinced that a shortened timeline would be feasible for lead agencies
and EIS providers to carry out their obligations under subpart D of
these regulations.
Finally, regarding the request to incorporate in these regulations
a timeline within which a lead agency or EIS provider must obtain
parental consent following a child's referral to the part C program,
establishing this separate timeline is unnecessary because the
Department has adopted a 45-day timeline that runs from the date of
referral, not the date parental consent is obtained.
Changes: We have redesignated proposed Sec. 303.320(e) as new
Sec. 303.310(a) and revised it to require that, within 45 days after
the lead agency or EIS provider receives a referral, the screening (if
the State has adopted a policy and elects, and the
[[Page 60192]]
parent consents, to conduct a screening of a child), initial
evaluation, initial assessments, and initial IFSP meeting must be
conducted. We have deleted the language from proposed Sec.
303.320(e)(1)(ii) regarding the lead agency obtaining parental consent
as soon as possible after receiving the child's referral.
We have clarified in Sec. 303.310(a) that the 45-day timeline
applies to the screening conducted under new Sec. 303.320, if
applicable; initial evaluation (described in new Sec. 303.321(a)(2)(i)
as the child's evaluation to determine his or her initial eligibility
under this part), initial assessments of the child and family under
Sec. 303.321(a)(2)(ii); and initial IFSP meeting under Sec. 303.342.
We also have added new Sec. 303.310(b) to identify two limited
exceptions to the 45-day timeline. These exceptions cover periods of
time when (i) the child or parent is unavailable to complete the
screening, if applicable; the initial evaluation; the initial
assessments of the child and family; or the initial IFSP meeting due to
exceptional family circumstances that are documented in the child's
early intervention records; or (ii) the parent has not provided consent
for the screening, if applicable, the initial evaluation, or the
initial assessment of the child, despite documented, repeated attempts
by the lead agency or EIS provider to obtain parental consent.
We have added new Sec. 303.310(c) to clarify that the lead agency
must have procedures to ensure that the lead agency or EIS provider:
(1) Documents the exceptional circumstances or repeated attempts by the
lead agency or EIS provider to obtain parental consent, (2) completes
the screening, if applicable, the initial evaluation, the initial
assessments of the child and family, and the initial IFSP meeting as
soon as possible after the documented exceptional family circumstances
no longer exist or parental consent is obtained for the screening, if
applicable, initial evaluation, and initial assessment of the child,
and (3) develop and implement an interim IFSP to the extent appropriate
and consistent with Sec. 303.345.
Finally, we have added new Sec. 303.310(d) to ensure that the
family assessment is completed within the 45-day timeline, if the
parent concurs, as long as the parent is available.
Comment: Two commenters recommended that, rather than changing the
triggering event for the 45-day timeline from referral to parental
consent, the Department should use its authority under section 618 of
the Act to collect information related to the reasons for, and the
scope of problems related to, a lead agency's failure to meet the 45-
day timeline requirement. A few commenters recommended that new Sec.
303.310 (proposed Sec. 303.320(e)) require States to report on the
timelines in new Sec. 303.310 (proposed Sec. 303.320(e)) as part of
the State's application.
Discussion: As previously discussed, we have retained the current
45-day timeline from the date of a child's referral to the part C
program for lead agencies and EIS providers to complete the child's
initial evaluation, initial assessment, and initial IFSP meeting.
Concerning commenters' requests that this timeline be reported in each
State's application, States already report to the Department data on
implementing the 45-day timeline and reasons for any delay in meeting
this timeline. One of the indicators that each State is required to
report on in its SPP/APR is compliance with this 45-day timeline. Each
State reports these data annually to the Department. Pursuant to
sections 616(d) and 642 of the Act, the Department uses these and other
data to determine whether the State is meeting the requirements of part
C of the Act and these regulations. Given that the Department already
collects these data, it is not necessary to incorporate an additional
data collection requirement in the application or elsewhere in these
regulations.
Changes: None.
Comment: Some commenters recommended that a specific provision be
added to new Sec. 303.310(b) (proposed Sec. 303.320(e)) to permit a
lead agency to waive the 45-day timeline requirement if the lead agency
or EIS provider made good faith efforts to conduct the initial
evaluation, initial assessments, and initial IFSP meeting but the child
or family member was unavailable (e.g., due to child or parent illness,
work or family vacation scheduling conflicts, or other parent-requested
considerations) or the lead agency or EIS provider made good faith
efforts to obtain parental consent for the initial evaluation and
initial assessment but was unable to do so within the 45-day timeline.
Discussion: As discussed earlier in this preamble, we agree that
exceptional family circumstances may make it difficult or impossible
for the lead agency or EIS provider to meet the 45-day timeline in new
Sec. 303.310 (proposed Sec. 303.320(e)). However, we do not believe
an absolute waiver of the timeline is appropriate. Instead, to provide
flexibility and ensure accountability, we have adopted, in new Sec.
303.310(b), two limited exceptions to the 45-day timeline, one of which
directly addresses the commenters' concern about exceptional family
circumstances.
Specifically, new Sec. 303.310(b) states that the 45-day timeline
does not apply when: (1) The child or parent is unavailable to complete
the screening, if applicable; the initial evaluation; the initial
assessments of the child and family; or the initial IFSP meeting due to
exceptional family circumstances that are documented in the child's
early intervention records; or (2) the parent has not provided consent
for the screening, if the State has adopted a policy to conduct
screenings and elects to conduct a screening of that child; initial
evaluation; or initial assessment of the child despite documented,
repeated attempts by the lead agency or EIS provider to obtain parental
consent.
To ensure that these exceptions are used appropriately, new Sec.
303.310(c) requires the lead agency to develop procedures to ensure
that exceptional family circumstances or repeated attempts by the lead
agency or EIS provider to obtain parental consent are documented in the
child's early intervention records.
Moreover, to ensure that these exceptions do not result in absolute
waivers of the 45-day timeline, new Sec. 303.310(c)(2) and (c)(3)
require that the lead agency or EIS provider complete the activities as
soon as possible after the basis for the exceptions cease to exist, and
develop and implement an interim IFSP to the extent appropriate and
consistent with Sec. 303.345.
These two limited exceptions provide States needed flexibility
while ensuring that, once parental consent is provided for the
screening, if applicable; initial evaluation; and initial assessment of
the child; or the exceptional family circumstances no longer exist, the
lead agency or EIS provider conduct the screening, if applicable;
initial evaluation; initial assessments; and initial IFSP meeting as
soon as possible to ensure the timely identification and evaluation of
infants and toddlers with disabilities.
Changes: As noted earlier in this preamble, we have added new Sec.
303.310(b) to identify two exceptions to the 45-day timeline and added
Sec. 303.310(c) to clarify that the lead agency must have procedures
to ensure that the lead agency or EIS provider: (i) Documents
exceptional circumstances or repeated attempts by the lead agency or
EIS provider to obtain parental consent, (ii) completes the screening,
if applicable; the initial evaluation; initial assessments; and the
initial IFSP
[[Page 60193]]
meeting as soon as possible after the documented exceptional family
circumstances no longer exist or parental consent is obtained, and
(iii) develop and implement an interim IFSP if appropriate, consistent
with Sec. 303.345.
Screening Procedures (Optional) New Sec. 303.320 (Proposed Sec.
303.303)
Comment: None.
Discussion: Based on further review of Sec. 303.320(a)(1)
(proposed Sec. 303.303(a)(1)), regarding screening procedures, we have
determined that the words ``when appropriate'' are unnecessary and
potentially confusing. Lead agencies always can adopt policies for
screening. If a State elects to adopt screening policies and
procedures, those policies and procedures must specify when screening
of a particular child is appropriate.
Changes: We have removed the words ``when appropriate'' from Sec.
303.320(a)(1) (proposed Sec. 303.303(a)(1)).
Comment: A significant number of commenters requested additional
clarification regarding the screening procedures in proposed Sec.
303.303. Some commenters opposed including screening in these
regulations stating that they were concerned that children for whom
part C eligibility is not readily or easily apparent may be denied an
evaluation and services if screening is conducted.
Other commenters recommended that proposed Sec. 303.303(a)(3) be
amended to require that if the lead agency determines, 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, including notice
of the right to request and receive an evaluation at any time.
Additionally, the commenters requested that this notice include a
description of the difference between a ``screening,'' conducted
pursuant to proposed Sec. 303.303, and an ``evaluation,'' as required
in proposed Sec. 303.320.
Other commenters suggested that if the lead agency decides the
child is not suspected of having a disability, the lead agency should
be required to present this decision and the reasons for the decision
to a parent in writing, but should not be required to provide this
information through prior written notice under Sec. 303.421. These
commenters further recommended that the lead agency be required to
offer an evaluation only after that decision is conveyed to the parent,
and the parent disagrees with that determination and requests an
evaluation.
One commenter stated that if a parent disagrees with a decision
regarding a referral for evaluation, the parent should be entitled to
appeal that decision using the due process procedures in subpart E of
these regulations, but the lead agency should not be required to
evaluate the child.
A few commenters requested that parents be informed verbally and in
writing, in their native language or preferred method of communication,
of their right to request a full evaluation of their child, including
their right to bypass screening and go straight to an evaluation.
Discussion: New Sec. 303.320 (proposed Sec. 303.303) has been
restructured, and a few provisions have been added, to address the
commenters' concerns regarding screenings and a parent's right to
request an evaluation. We have added new Sec. 303.320(a)(1)(i) and
(a)(1)(ii), stating that if the lead agency or EIS provider proposes to
screen a child, it must provide the parent notice under Sec. 303.421
of its intent to screen the child to determine whether the child is
suspected of having a disability and obtain parental consent as
required in Sec. 303.420(a)(1) before administering the screening.
That notice must explain the parent's right to request an evaluation
under new Sec. 303.321 (proposed Sec. 303.320) at any time during the
screening process.
We also have revised new Sec. 303.320(a)(2)(ii) (proposed Sec.
303.303(a)(3)) to specify that when the lead agency provides notice to
a parent under Sec. 303.421 that, based on the screening or other
available information, a child is not suspected of having a disability,
the notice must describe the parent's right to request an evaluation.
Additionally, in new Sec. 303.320(a)(3), we have retained the
provision in proposed Sec. 303.303(a)(4) to allow parents to request
and consent to an evaluation when the lead agency or EIS provider
determines that the child is not suspected of having a disability. We
have revised this section to specify that parents may request, and
consent to, an evaluation at any time during the screening process.
This ensures that an evaluation may still be requested by the parent of
a child for whom part C eligibility is not readily or easily apparent.
With regard to the comment that the notice provided to parents when
the child is not suspected of having a disability should include an
explanation of the differences between screening and evaluation, it is
not necessary to add that language to new Sec. 303.320(a)(2)(ii)
(proposed Sec. 303.303(a)(3)) because this section requires that prior
written notice pursuant to Sec. 303.421 be provided to a parent when a
child is not suspected of having a disability, and Sec. 303.421(b)
mandates that prior written notice be in sufficient detail to inform
the parents about the action that is being proposed or refused.
Therefore, we expect that the procedures involved in screening and
evaluation will be explained to the parents through the prior written
notice.
It is the Department's position that presenting a parent with a
written decision that the child is not suspected of having a disability
and the reasons for the decision in a manner that meets the prior
written notice requirements in Sec. 303.421(b) would ensure that
parents are fully informed of their rights. We believe fully informing
parents of their rights is a critical aspect of enhancing the capacity
of families to meet the special needs of their infants and toddlers
with disabilities, pursuant to section 631 of the Act and, thus, we
have required lead agencies to ensure that parents are provided with
prior written notice of any determination that their child is not
suspected of having a disability.
A parent has the right to request an evaluation if the screening or
other available information indicates that the child is not suspected
of having a disability, instead of having to utilize the due process
procedures in subpart E of these regulations to appeal that decision.
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. For this reason, parents should be able
to request and receive an evaluation without the potential delay and
expense of a due process hearing. We believe this approach facilitates
a comprehensive child find system tasked with identifying all infants
and toddlers with disabilities. Additionally, because a child is only
eligible for part C services for a short period of time and providing
services earlier rather than later can enhance the development of
infants and toddlers with disabilities, time is of the essence with
regard to identifying a child as an infant or toddler with a
disability. Thus, it is important that parents retain the right to
request an evaluation at any time during the screening process.
With regard to the comment that notice of the right to request an
evaluation should be provided to the parent verbally and in writing, in
the parent's native language or preferred method of communication,
parental
[[Page 60194]]
notice of the right to request an evaluation must meet all of the
requirements in Sec. 303.421, including the native language
requirement. The requirements in Sec. 303.421 are discussed further in
the Analysis of Comments and Changes section for subpart E of these
regulations. We believe that the requirements in Sec. 303.421 are
comprehensive and sufficient to provide parents with an understanding
of their rights, specifically with regard to their right to request an
evaluation.
Changes: We have restructured this section and added language to
new Sec. 303.320(a) (proposed Sec. 303.303(a)) to clarify that
parents have an ongoing right to request an evaluation before, during,
or after their child is screened. Specifically, we have added a new
Sec. 303.320(a)(1)(i) and (a)(1)(ii), stating that if the lead agency
or EIS provider proposes to screen a child, it must (i) provide the
parent notice under Sec. 303.421 of its intent to screen the child to
identify whether the child is suspected of having a disability (and
include in the notice a description of the parent's right to request an
evaluation under Sec. 303.321 at any time during the screening
process) and (ii) obtain parental consent as required in Sec.
303.420(a)(1) before administering the screening. We also have revised
new Sec. 303.320(a)(2)(ii) (proposed Sec. 303.303(a)(3)) to specify
that when the lead agency provides notice to a parent under Sec.
303.421 that, based on the screening or other available information, a
child is not suspected of having a disability, the notice must describe
the parent's right to request an evaluation.
We have added to new Sec. 303.320(a)(3) (proposed Sec.
303.303(a)(4)) a provision clarifying that parents may request an
evaluation at any time during the screening process.
Comment: A few commenters expressed concern that the amount of time
used for screening could increase the time between referral and the
initiation of services. The commenters requested that a timeline be
imposed so that eligibility determinations would not be delayed. Some
commenters requested clarifying that the 45-day timeline in new Sec.
303.310 (proposed Sec. 303.320(e)) starts prior to the screening, not
after. Additional commenters expressed concern that while comprehensive
statewide screening efforts could enhance the early identification of
eligible children, the regulations do not adequately emphasize that
screening efforts should not be used to deny or delay an eligibility
determination from the lead agency.
Discussion: The timeline outlined in new Sec. 303.310(a) (proposed
Sec. 303.320(e)) requires that any screening under Sec. 303.320, if
applicable, be completed within 45 days from the date the lead agency
or EIS provider receives the referral of the child. Because screening
by the lead agency is optional and is included in the 45-day timeline,
the use of screening is not expected to cause a delay in determining a
child's eligibility for services under part C of the Act, but rather to
assist the lead agency and parent in determining whether a child is
suspected of having a disability. With regard to the commenters'
concern that the regulations in this part do not adequately emphasize
that screening efforts should not be used to deny an eligibility
determination, a parent has the right, under new Sec. 303.320(a)(3)
(proposed Sec. 303.303), to request and receive an evaluation at any
time during the screening process and must be notified of this right,
under new Sec. 303.320(a)(1)(i), at the beginning of the screening
process. Therefore, the regulations protect parents with regard to
eligibility determinations and sufficiently address the commenters'
concern.
Changes: As previously discussed in response to comments on new
Sec. 303.310 (proposed Sec. 303.320(e)), we have added a reference to
screening as an activity that is subject to the 45-day timeline in
Sec. 303.310 (proposed Sec. 303.320(e)).
Comment: A few commenters expressed concern that, under new Sec.
303.320 (proposed Sec. 303.303), lead agencies may use the results of
screening procedures to determine eligibility for early intervention
services and requested that these regulations explicitly require a full
evaluation be conducted in order to determine eligibility for services
under part C of the Act.
Discussion: New Sec. 303.320 makes clear that the purpose of
screening is to determine if a child is suspected of having a
disability. If eligibility is to be determined, new Sec. 303.321
requires that an evaluation (not screening) be used to determine
eligibility. We believe these regulations are clear in their scope and
purpose and decline to make the change requested by the commenters.
Changes: None.
Comment: A significant number of commenters requested additional
clarification regarding the procedures that should be used to screen
infants and toddlers. These commenters recommended that States should
be required to ensure that professionals conducting the screening meet
the requirements that apply to EIS providers. Some commenters requested
that the regulations set a standard for personnel conducting the
screening. Other commenters requested that States be required to use
one standardized screening tool across the State in order to eliminate
differences in screening procedures across jurisdictions.
Discussion: Proposed Sec. 303.303(b)(2) provided that screening
procedures include the administration of appropriate instruments by
qualified personnel, who can assist in making the identification
outlined in new Sec. 303.320(a). We have revised that language, in new
Sec. 303.320(b)(2), to indicate that personnel who conduct screening
of a child must be trained to administer appropriate screening
instruments. We made this revision to ensure that personnel, such as
paraprofessionals or other individuals who are trained to administer a
specific screening instrument, may conduct screenings.
Concerning the request that we require a State to use one
standardized screening tool across the State, it is the Department's
position that requiring or recommending the use of specific measurement
tools, including requiring that a State use only one measurement tool
throughout the State, is not appropriate because individual child
differences should be taken into account when selecting appropriate
instruments.
Changes: We have deleted the reference to ``qualified personnel''
in new Sec. 303.320(b)(2) (proposed Sec. 303.303(b)(2)), and added a
reference to ``personnel trained to administer those instruments.''
Comment: A few commenters requested that language be included in
proposed Sec. 303.303 to stipulate that screening is not required for
infants and toddlers with established physical or mental conditions.
Discussion: Screening is intended to be a tool to assist the lead
agency and EIS providers determine whether an infant or toddler is
suspected of having a disability and is in need of an evaluation. If a
child has a diagnosed physical or mental condition, an evaluation or
screening may not be needed to determine eligibility. We specifically
provide in new Sec. 303.321(a)(3)(i) that a child's medical and other
records may be used to establish eligibility (without conducting an
evaluation of the child) under this part if those records indicate that
the child is an infant or toddler with a disability in Sec. 303.21,
which includes children with diagnosed conditions, developmental
delays, and, at the State's option, at-risk children. For children with
established diagnosed
[[Page 60195]]
conditions, screening is not needed because records establish that the
child is not only suspected of having a disability, but in fact has a
disability.
Changes: None.
Comment: A few commenters requested that proposed Sec.
303.303(a)(2) be amended to provide that parents be offered the option
of an evaluation in cases where the results of their child's screening
indicate that the child is suspected of having a disability as opposed
to requiring the lead agency to evaluate the child.
Discussion: We understand the commenters' concerns and did not
intend this provision to require evaluations in all cases where the
results of a screening indicate that a child may have a disability. To
clarify our intent, we have added language to new Sec. 303.320(a)(2)
(proposed Sec. 303.303(a)(2)) stating that if a parent consents to
screening and the screening or other available information indicates
that the child is suspected of having a disability, after notice is
provided under Sec. 303.421 and once parental consent is obtained as
required in Sec. 303.420, an evaluation and assessment of the child
must be conducted under new Sec. 303.321 (proposed Sec. 303.320).
Changes: New Sec. 303.320(a)(2) (proposed Sec. 303.303(a)(2)) has
been restructured to clarify that, after screening, notice under Sec.
303.421 and parental consent are required before an infant or toddler
can be evaluated.
Comment: A few commenters recommended adding language to new Sec.
303.320(a)(2)(ii) (proposed Sec. 303.303(a)(3)) to require
notification by the lead agency to the caregivers of infants and
toddlers and the agencies assigned to care for them when the lead
agency knows that the infant or toddler is in foster care or is a ward
of the State. The commenters noted that, in these situations, it is to
the child's advantage to have relevant information given to the
caregiver and the agency responsible for the child.
Discussion: The definition of parent in Sec. 303.27 includes a
biological or adoptive parent of a child; 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; 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); 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 a surrogate parent who has been
appointed in accordance with Sec. 303.422 or section 639(a)(5) of the
Act.
For a child in foster care who has a foster parent that meets the
definition of a parent in Sec. 303.27, the child's foster parent must
be notified, pursuant to Sec. 303.421 and new Sec. 303.320(a)(2)(ii)
(proposed Sec. 303.303(a)(3)), if the child is screened and not
suspected of having a disability.
For a child who is a ward of the State (which includes a foster
child who does not have a foster parent that meets the definition of a
parent in Sec. 303.27), protections under Sec. 303.422, regarding
surrogate parents, apply. Specifically, each lead agency must ensure
that the rights of a child are protected when the child is a ward of
the State. The lead agency must determine whether a child needs a
surrogate parent and if so, assign a surrogate parent to the child. If
a ward of the State has a surrogate parent, this parent must be
notified, pursuant to Sec. 303.421 and new Sec. 303.320(a)(2)(ii)
(proposed Sec. 303.303(a)(3)), if the child is screened and not
suspected of having a disability. Therefore, it is the Department's
position that further clarification is unnecessary because the
commenters' concerns about notification for infants and toddlers who
are in foster care or wards of the State are adequately provided for
under this part.
Changes: None.
Comment: A few commenters stated that the requirements in new Sec.
303.320(a)(3) (proposed Sec. 303.303(a)(4)), which allow a parent to
request an evaluation even after the lead agency determines, using its
screening procedures, that the child is not suspected of having a
disability, would diminish the cost effectiveness of screening.
Discussion: Screening under new Sec. 303.320 (proposed Sec.
303.303) is not required under the Act; rather, it is an option that a
State may choose to include as a part of its comprehensive child find
system. An evaluation under new Sec. 303.321 (proposed Sec. 303.320)
entails more extensive requirements than the screening under Sec.
303.320 (proposed Sec. 303.303) and, thus, could yield more
information about whether a child is an infant or toddler with a
disability than a screening may. In light of this and the fact that
section 635(a)(5) of the Act requires that each State's child find
system ensures rigorous standards for appropriately identifying infants
and toddlers with disabilities, it is important that parents have the
right to request an evaluation if screening does not result in their
child being suspected of having a disability.
Changes: None.
Comment: Several commenters recommended that the regulations
require re-screening every six months until the age of three if,
through the screening process under new Sec. 303.320 (proposed Sec.
303.303), a child is not suspected of having a disability. The
commenters noted that children grow and change dramatically in their
first three years of life and that developmental delays are often
difficult to recognize at a specific point in time.
Discussion: New Sec. 303.302 (proposed Sec. 303.301) provides
that each State must have a comprehensive child find system that
ensures that all infants and toddlers with disabilities in the State
who are eligible for early intervention services under this part
(including children who have been screened in the past and those who
have never been screened) are identified, located, and evaluated. This
section includes specific requirements to facilitate identification,
location, and evaluation of all of these children.
For children who are screened and not suspected of having a
disability, all of the general child find requirements in new Sec.
303.302 (proposed Sec. 303.301) apply and, in addition, the lead
agency or EIS provider must ensure that the parent is provided notice
under Sec. 303.421, and that, pursuant to new Sec. 303.320(a)(2)(ii)
(proposed Sec. 303.303(a)(3)), the notice describes the parent's right
to request an evaluation. These provisions provide sufficient
protection for children who are screened and not suspected of having a
disability.
Further, a lead agency may adopt specific screening procedures,
consistent with the requirements in new Sec. 303.320 (proposed Sec.
303.303). As part of these procedures, a State could mandate re-
screening or other protections for children who have been screened but
are not suspected of having a disability. It is important for a lead
agency to have some flexibility in determining how best to implement
screening in its State and, therefore, it is the Department's position
that mandating re-screening is not appropriate.
Changes: None.
Comment: Two commenters requested clarification as to why the
phrase ``except for parents'' was included in new Sec. 303.320(b)(1)
(proposed Sec. 303.303(b)(1)), given that parents are a vital source
of information in identifying whether a child is suspected of having a
disability.
[[Page 60196]]
Discussion: We agree that parents are a valuable source of
information in determining whether a child is suspected of having a
disability. Therefore, we have removed the parenthetical in new Sec.
303.320(b)(1) (proposed Sec. 303.303(b)(1)).
Changes: The phrase ``except for parents'' has been removed from
new Sec. 303.320(b)(1) (proposed Sec. 303.303(b)(1)).
Comment: None.
Discussion: To clarify that screening may be conducted by the lead
agency or EIS provider, we have decided to use the terms ``lead
agency'' or ``EIS provider'' in lieu of the reference to ``public
agency, early intervention service provider, and designated primary
source'' in new Sec. 303.320(b)(1) (proposed Sec. 303.303(b)(1)).
Changes: We have removed the words ``public agency, early
intervention service provider, or designated primary source'' from new
Sec. 303.320(b)(1) (proposed Sec. 303.303(b)(1)) and replaced them
with the words ``lead agency or EIS provider.''
Comment: A commenter recommended strengthening the language under
new Sec. 303.320(b)(2) (proposed Sec. 303.303(b)(2)) to clarify the
meaning of ``appropriate instruments.'' The commenter recommended that
the screening instruments administered must have established validity
and reliability to use with children under the age of three. A few
commenters requested that new Sec. 303.320(b) (proposed Sec.
303.303(b)) require screening instruments to be peer-reviewed and
research-based. One commenter recommended including reliable and valid
parent-report instruments as examples of screening instruments in new
Sec. 303.320(b)(2) (proposed Sec. 303.303(b)(2)).
Discussion: New Sec. 303.320(b)(2) (proposed Sec. 303.303(b)(2))
requires the administration of appropriate instruments by personnel
trained to administer those instruments. Given that screening
instruments vary by State--and often even within a State--and the
selection of screening instruments is based on a variety of factors, it
is the Department's position that it is inappropriate for these
regulations to further specify the screening instruments to be used.
States need the flexibility to identify which screening instruments are
used. Screening instruments for children under the age of three rely
heavily on parent reports. Thus, we do not believe that it is necessary
to clarify, or appropriate to limit, the types of screening instruments
a lead agency may use.
Changes: None.
Evaluation of the Child and Assessment of the Child and Family (New
Sec. 303.321) (Proposed Sec. 303.320)
Comment: Several commenters noted that there were significant
changes in proposed Sec. 303.320 that did not appear to have a basis
in the Act. Commenters stated that changing the definitions of
evaluation and assessment procedures at this point would have major
implications for State rules, policies, procedures, professional
development, parent training, data systems, and State monitoring
systems.
Discussion: The definitions of evaluation and assessment in
proposed Sec. 303.320(a), (b), and (c) were not substantively
different from current Sec. 303.322(b)(1) through (b)(2); instead, the
changes made in proposed Sec. 303.320 were intended to clarify the
current requirements. However, because of the concerns raised by some
of the commenters, we have revised the definitions in new Sec.
303.321(a)(2) (proposed Sec. 303.320(a), (b), and (c)) to provide
further clarification. Specifically, we have clarified that evaluation
means the procedures used by qualified personnel 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.
Also, we have clarified that assessment means the ongoing procedures
used by qualified personnel to identify a child's unique strengths and
needs and the early intervention services appropriate to meet those
needs throughout the period of a child's eligibility under this part
and includes the assessment of the child, consistent with new Sec.
303.321(c)(1) (proposed Sec. 303.320(b)) and the assessment of the
child's family, consistent with new Sec. 303.321(c)(2) (proposed Sec.
303.320(c)).
We have further clarified the definition of assessments in new
Sec. 303.321(a)(1)(ii) to incorporate the language from section
636(a)(1) and (a)(2) of the Act, which requires each statewide system
to provide for each eligible child: (1) A multidisciplinary assessment
of the unique strengths and needs of the infant or toddler and the
identification of services appropriate to meet those needs; and (2) A
family-directed assessment of the resources, priorities, and concerns
of the family and the identification of the supports and services
necessary to enhance the family's capacity to meet the developmental
needs of the infant or toddler.
In making these revisions to the definitions of evaluation and
assessment, we determined it was also appropriate to clarify what is
meant by the terms ``initial evaluation'' and ``initial assessment.''
Other sections of these regulations, particularly in the context of the
45-day timeline reflected in new Sec. 303.310 (proposed Sec.
303.320(e)), often refer to the initial evaluation and the initial
assessment. For this reason, we have clarified in new Sec.
303.321(a)(2)(i) that the term ``initial evaluation'' refers to the
child's evaluation to determine his or her initial eligibility under
this part. We have clarified in new Sec. 303.321(a)(2)(ii) that the
term ``initial assessment'' refers to assessments of the child and the
family conducted prior to the child's initial IFSP meeting, both of
which must be conducted within the 45-day timeline described in new
Sec. 303.310 (proposed Sec. 303.320(e)), even if family members other
than the parent agree to participate but are unavailable to complete
the family assessment. We do not believe that these definitions are new
concepts under the part C program; rather, we view them as clarifying
the terminology used so that the field can more easily distinguish
between evaluations and assessments that occur throughout a child's
time in the part C program and the initial evaluation and initial
assessment that must be completed, along with the initial IFSP meeting,
within 45 days after the child is referred to the part C program.
Changes: The definitions of evaluation and assessment in new Sec.
303.321(a)(2) (proposed Sec. 303.320(a), (b), and (c)) have been
clarified to reflect the language in section 636(a)(1) and (a)(2) of
the Act. We also have added definitions of the terms initial evaluation
and initial assessment to this section.
Comment: A few commenters requested clarification on the
distinction between an assessment and an evaluation, as used in new
Sec. 303.321(a) (proposed Sec. 303.320(a), (b), and (c)).
Discussion: We agree with the commenters regarding the need for
clarification and, therefore, have revised new Sec. 303.321 (proposed
Sec. 303.320). An evaluation, as defined in new Sec. 303.321(a)(2)(i)
(proposed Sec. 303.320(a)(2)(i)), means the procedures used by
qualified personnel to determine a child's initial and continuing
eligibility under this part, and can include, pursuant to new Sec.
303.321(b) (proposed Sec. 303.320(a)(2)), activities such as
administering an evaluation instrument; taking the child's history
(including interviewing the parent); identifying the child's level of
functioning in each of the
[[Page 60197]]
developmental areas in Sec. 303.21(a)(1); gathering information from
other sources such as family members, other care-givers, medical
providers, social workers, and educators, if necessary, to understand
the full scope of the child's unique strengths and needs; and reviewing
medical, educational, or other records.
We recognize that the three separate references to assessments in
proposed Sec. 303.320(a) (assessment of the child, assessment of the
family, and assessment of service needs) may have caused confusion. To
facilitate understanding, we have defined the term assessment, in new
Sec. 303.321(a)(2)(ii), to mean the ongoing procedures used by
qualified personnel to identify the child's unique strengths and needs
and the early intervention services appropriate to meet those needs
throughout the period of a child's eligibility under this part and to
include the assessment of the child and the assessment of the child's
family.
We also have removed all general references to assessment of
service needs as used in the proposed regulations. These changes are
further discussed in the Analysis of Comments and Changes section
addressing comments received on proposed Sec. 303.320(d).
Changes: We have reorganized and revised new Sec. 303.321(a)
(proposed Sec. 303.320(a), (b), and (c)) to set out clear definitions
of the terms evaluation and assessment.
Comment: One commenter requested that the final regulations clarify
that the assessment in new Sec. 303.321(a)(1)(ii) (proposed Sec.
303.320(a)(1)(ii)) is a ``developmental'' assessment of the child.
Discussion: The assessment of the child includes the identification
of the child's needs in each of the developmental areas in Sec.
303.21(a)(1), the definition of an infant or toddler with a disability;
however, the assessment also includes identifying the unique strengths
and needs of the child and the early intervention services appropriate
to meet those needs; reviewing the results of an evaluation; and
conducting personal observations of the child. Therefore, it is the
Department's position that limiting the assessment of the child to a
developmental assessment is not appropriate.
Changes: None.
Comment: Some commenters expressed concern about the language in
new Sec. 303.321(a)(1)(ii) (proposed Sec. 303.320(a)(1)(iii)),
regarding the assessment of the family. One commenter stated that the
requirement to conduct a family assessment before determining an infant
or toddler's eligibility presents an undue and unnecessary burden on
State part C programs. The commenter recommended that language be added
to the regulations to ensure that family assessments do not have to be
conducted unless an infant or toddler is determined to be eligible for
early intervention services. Two commenters requested that we revise
this section to clarify the assessments that must be conducted as part
of an initial evaluation of a child referred under this part.
Discussion: An assessment of a child and family as defined in new
Sec. 303.321(a)(1), (a)(2)(ii), (a)(3), (a)(4), and (c) (proposed
Sec. 303.320(a)(1), (a)(2)(iii), (a)(3)(b), and (c)) is only required
if the child is determined to be eligible to receive services under
this part. We have added language to new Sec. 303.321(a)(1)(ii)
(proposed Sec. 303.320(a)(1)(ii) and (a)(1)(iii)) to make this clear.
Changes: We have revised the introduction to new Sec.
303.321(a)(1)(ii) (proposed Sec. 303.320(a)(1)(ii) and (a)(1)(iii)) to
read ``If the child is determined eligible as an infant or toddler with
a disability as defined in Sec. 303.21.''
Comment: Several commenters expressed concern that proposed Sec.
303.320(a)(1)(iv) may be inconsistent with section 636(a) and (d)(4) of
the Act with regard to when service needs are identified. These
commenters were concerned that determining service needs prior to the
IFSP meeting could preempt important decisions that need to be made as
part of the IFSP process. One commenter recommended that the language
in current Sec. 303.322(c)(3)(iii), which requires the ``assessment of
the unique needs of the child * * * including the identification of
services appropriate to meet those needs'' be retained instead. Several
commenters recommended that we replace the term ``service needs'' in
proposed Sec. 303.320(a)(1)(iv) with the phrase ``unique needs in each
of the developmental areas,'' which is used in current Sec.
303.322(c)(3)(iii). Other commenters did not support the assessment of
service needs as part of the evaluation process, because this
assessment typically is part of the IFSP process, completed after the
IFSP Team has determined child and family outcomes.
Discussion: Based on commenters' requests for clarification
regarding what must be included in an assessment, we have revised new
Sec. 303.321(a)(2)(ii) and (c)(1) (proposed Sec. 303.320(b), (c), and
(d)) to provide that an assessment means the ongoing procedures used by
qualified personnel to identify the child's unique strengths and needs
and the early intervention services appropriate to meet those needs. We
also have clarified that an assessment of the child must include a
review of the results of the evaluation conducted under new Sec.
303.321(b) (proposed Sec. 303.320(a)(2)), personal observations of the
child, and the identification of the child's needs in each of the
developmental areas in Sec. 303.21(a)(1). Because we have revised new
Sec. 303.321(a)(2)(ii) and (c)(1) (proposed Sec. 303.320(b), (c), and
(d)) to state that the assessment of the child must include
identification of the child's unique strengths and needs and the early
intervention services appropriate to meet those needs, we have removed
the language requiring an assessment of service needs from new Sec.
303.321(a)(1) (proposed Sec. 303.320(a)(iv)) and have removed proposed
Sec. 303.320(d) from the final regulations. The results of the
assessment of the child, together with the results of the assessment of
the family, are the basis for the IFSP Team's determination of which
early intervention services would be appropriate to meet the needs of
the infant or toddler with a disability and his or her family.
Regarding commenters' concern that using assessments to identify
the early intervention services appropriate for a child prior to an
IFSP meeting is inconsistent with the Act, section 636(a) of the Act,
provides that a statewide system must include a multidisciplinary
assessment of the unique strengths and needs of the infant or toddler
and the identification of services appropriate to meet such needs.
Section 636 of the Act states that the IFSP shall contain a statement
of specific early intervention services and Sec. Sec. 303.343 and
303.344 require the IFSP Team (which includes the parent) to identify
the early intervention services appropriate to meet the child's needs
at the IFSP Team meeting. This requirement is not replaced by the
assessment; rather, the assessment serves to inform the IFSP Team
process by identifying the developmental strengths and needs of the
child. We believe that this facilitates rather than preempts important
decisions that need to be made through the IFSP process.
Changes: The procedures for assessment of the child have been
changed in new Sec. 303.321(a)(1)(ii) and (c)(1) (proposed Sec.
303.320(b), (c), and (d)) to include the identification of the child's
unique strengths and needs and the early intervention services
[[Page 60198]]
appropriate to meet those needs. Further, new Sec. 303.321(c)(1)
(proposed Sec. 303.320(b), (c), and (d)) has been revised to clarify
that an assessment of the child must include a review of the results of
the evaluation conducted under new Sec. 303.321(b) (proposed Sec.
303.320(a)(2)), personal observations of the child, and the
identification of the child's needs in each of the developmental areas
in Sec. 303.21(a)(1).
Comment: A few commenters requested that new Sec. 303.321(a)(3)(i)
(proposed Sec. 303.320(a)(2)(iii)) be clarified to require that a
child, prior to the IFSP meeting, receive an assessment in accordance
with new Sec. 303.321(c) (proposed Sec. 303.320(b) and (c)) even when
medical records and other information are adequate to determine
eligibility without an evaluation in order to inform IFSP members of
the child's unique strengths and needs.
Discussion: We agree that clarification is needed because we
inadvertently referred in the proposed section to ``assessment''
instead of ``evaluation'' in the parenthetical ``(without conducting an
assessment of the child and the family).'' Additionally, regardless of
whether a child's eligibility is determined through medical records or
an evaluation, once a child is determined to be eligible to receive
services under part C of the Act, initial assessments of the child and
family must be completed.
Activities that are the basis of the initial assessment of the
child may occur with the initial evaluation of the child. We have added
the phrase ``if the child is determined eligible as an infant or
toddler with a disability as defined in Sec. 303.21'' to new Sec.
303.321(a)(1)(ii) (proposed Sec. 303.320(a)(1)(ii) and (a)(1)(iii)) to
clarify that an assessment is required once a child is determined
eligible, regardless of how eligibility is determined. We also have
added a sentence to new Sec. 303.321(a)(3)(i) (proposed Sec.
303.320(a)(2)(iii)) to further explain that, if a child's part C
eligibility is established through a review of his or her medical or
other records, the lead agency or EIS provider must conduct
assessments, including the family assessment, pursuant to new Sec.
303.321(c) (proposed Sec. 303.320).
Changes: As noted elsewhere, we have added the phrase ``if the
child is determined eligible as an infant or toddler with a disability
as defined in Sec. 303.21'' to new Sec. 303.321(a)(1)(ii) (proposed
Sec. 303.320(a)(1)(ii) and (a)(1)(iii)). We also have added a sentence
to new Sec. 303.321(a)(3)(i) (proposed Sec. 303.320(a)(2)(iii)) to
further explain that, if a child's part C eligibility is established
under that paragraph, the lead agency or EIS provider must conduct
assessments, including the family assessment, pursuant to new Sec.
303.321(c) (proposed Sec. 303.320).
Comment: One commenter expressed concern about proposed Sec.
303.320(a)(3), which required that evaluations and assessments of the
child and family be conducted in the child's or family's native
language, as appropriate. The commenter stated that the phrase ``as
appropriate'' weakens the requirement. Another commenter requested that
the regulations restore the phrase ``unless it is clearly not feasible
to do so'' from current Sec. 303.323(a) and, further, that these
regulations use the phrase consistently when referencing native
language. Two commenters requested that we add ``or other mode of
communication'' after ``native language'' in proposed Sec.
303.320(a)(3) to ensure that the native language requirement is not
narrowly interpreted to exclude sign language.
One commenter requested that, because of the family-centered nature
of the part C program, the assessment should be conducted in the
family's native language, regardless of whether the child has or uses a
different native language.
Discussion: For clarity and in response to the comments about
removing the phrase ``as appropriate'' and adding the phrases ``unless
clearly not feasible to do so'' and ``other mode of communication'' to
proposed Sec. 303.320(a)(3), regarding conducting evaluations and
assessments of the child, we have deleted the phrase ``in the child's
or family's native language (as appropriate)'' from new Sec.
303.321(a)(4) (proposed Sec. 303.320(a)(3)), and added new provisions
in Sec. Sec. 303.321(a)(5) and (a)(6).
We specify in new Sec. 303.321(a)(5) that, unless clearly not
feasible to do so, all evaluations and assessments of a child must be
conducted in the native language of the child, in accordance with the
definition of native language in Sec. 303.25. We also specify in new
Sec. 303.321(a)(6) that, unless clearly not feasible to do so, family
assessments must be conducted in the native language of the family
members being assessed, in accordance with the definition of native
language in Sec. 303.25. The ``unless clearly not feasible to do so''
standard acknowledges that there may be instances when conducting
evaluations or assessments in the native language of the child, parent,
or family member is not possible because, for example, interpreters for
a particular language cannot be located, despite best efforts. If on-
site interpreters cannot be located for a particular language despite
best efforts, other methods of communication in the native language,
such as using telephonic interpreters, should also be explored when an
interpreter is needed and appropriate, for the evaluation and
assessment.
We do not agree with the commenter that evaluations and assessments
of the child should only be conducted in the parent's or family's
native language, regardless of whether the child has or uses a
different language. Section 303.321(a)(5), together with Sec.
303.25(a)(2), recognize that while it sometimes may be appropriate to
conduct an evaluation or assessment of an infant or toddler in the
language normally used by the child's parents, in other cases it may be
determined to be developmentally appropriate to evaluate or assess the
child in the language normally used by the child if that language
differs from his or her parents. For example, evaluations or
assessments of infants are often conducted in the native language of
the parent because the parents are present and infants are pre-verbal
both in their expressive and receptive language abilities. In contrast,
many evaluations and assessments of toddlers (i.e., children who are
between the ages of one and three) are conducted in the toddler's
native language, rather than the native language of the parent. We
believe that ultimately the qualified personnel conducting the
evaluation or assessment is in the best position to determine which
language is developmentally appropriate---that of the child or the
parent.
Changes: We have removed the phrase ``in the child's or family's
native language (as appropriate)'' from new Sec. 303.321(a)(4)
(proposed Sec. 303.320(a)(3)), and added new provisions in Sec. Sec.
303.321(a)(5) and (a)(6). We specify in new Sec. 303.321(a)(5) that,
unless clearly not feasible to do so, all evaluations and assessments
of a child must be conducted in the native language of the child, in
accordance with the definition of native language in Sec. 303.25.
We also specify in new Sec. 303.321(a)(6) that, unless clearly not
feasible to do so, family assessments must be conducted in the native
language of the family members being assessed, in accordance with the
definition of native language in Sec. 303.25.
Comment: A few commenters recommended that subpart D include
provisions that clearly specify that multidisciplinary evaluations
include the participation of qualified personnel with knowledge of the
disability that may be indicated, particularly given the inclusion of
informed clinical opinion
[[Page 60199]]
in new Sec. 303.321(a)(3)(ii) (proposed Sec. 303.320(b)(1) and
(b)(2)). The commenters stated that for clinical opinion to be valid,
personnel must have knowledge and experience in the disability
presented by the child. For infants and toddlers with a known
disability (e.g., visual impairment), the inclusion of personnel with
knowledge and training in that area of disability increases the
accurate interpretation of results and is consistent both with the Act
and the part B regulations.
Discussion: The term evaluation is defined in new Sec.
303.321(a)(2)(i) as procedures used by qualified personnel to determine
a child's initial and continuing eligibility under part C of the Act,
consistent with the definition of infant or toddler with a disability
in Sec. 303.21. The definition of qualified personnel in Sec. 303.31
requires that personnel meet State-approved or State-recognized
certification, licensing, registration, or other comparable
requirements that apply to the area in which the individuals are
conducting evaluations or assessments or providing early intervention
services. We believe that new Sec. 303.321(a)(2)(i), in conjunction
with the definition of qualified personnel in subpart A of these
regulations, adequately address the commenters' concerns and,
therefore, repeating the definition in this section is not necessary.
Please note, regarding the commenters' concern about clinical
opinion, for an infant or toddler with a diagnosed physical or mental
condition that has a high probability of resulting in a developmental
delay (i.e., known disability), clinical opinion may not be necessary
to determine eligibility because, under new Sec. 303.321(a)(3)(i)
(proposed Sec. 303.320(a)(2)(iii)), the child's medical or other
records may be sufficient to establish eligibility. For a child without
a diagnosed physical or mental condition that has a high probability of
resulting in a developmental delay, clinical opinion may be used in
evaluating a child to establish eligibility but it may not be used to
negate eligibility established through the use of other appropriate
evaluation instruments.
Changes: None.
Procedures for Assessment of the Child and Family (New Sec.
303.321(c)) (Proposed Sec. 303.320(b) and (c))
Comment: Two commenters recommended adding language to new Sec.
303.321(c) (proposed Sec. 303.320(b) and (c)) to require the qualified
personnel who perform the assessment of a child to be from disciplines
that relate to the concerns and needs for which the child was referred
for part C services.
Discussion: As defined in Sec. 303.321(a)(2)(ii), the term
assessment means the ongoing procedures used by qualified personnel to
identify the child's unique strengths and needs and the early
intervention services appropriate to meet these needs throughout the
period of the child's eligibility under this part. These qualified
personnel must review the results of the evaluation conducted under new
Sec. 303.321(b) (proposed Sec. 303.320(a)(2)); observe the child; and
identify the child's needs in each of the developmental areas in Sec.
303.21(a)(1). Qualified personnel, as defined in Sec. 303.31, means
personnel who have met State-approved or State-recognized
certification, licensing, registration, or other comparable
requirements that apply to the area in which the individuals are
conducting evaluations or assessments, or providing early intervention
services. Given that the term assessment encompasses the assessment of
the areas of concern and need for which a child was referred to part C
services, and that personnel must be qualified, under Sec. 303.31, in
the areas in which they are providing an assessment, the regulations
sufficiently address the commenters' concern. For this reason, we have
not made the requested change.
Changes: None.
Comment: One commenter requested clarification as to whether
informed clinical opinion in new Sec. 303.321(a)(3)(ii) (proposed
Sec. 303.320(b)(2)) was an objective criterion or an assessment
strategy separate from other objective criteria. Some commenters
suggested that a more detailed description of informed clinical opinion
than the one used in new Sec. 303.321(a)(3)(ii) (proposed Sec.
303.320(b)(2)) is needed. These commenters recommended that the
Department adopt the definition of informed clinical opinion used by
the National Early Childhood Technical Assistance Center (NECTAC).
NECTAC describes informed clinical opinion as the fusion of the
assessment team's knowledge and experience with all the information
collected during an assessment, including informal measures, such as
interviews with parents or observation of the child, and standardized
measures such as test scores. Another commenter recommended that States
be allowed to define informed clinical opinion based on the definition
of developmental delay for the State.
Lastly, a few commenters requested clarification of the last phrase
of new Sec. 303.321(a)(3)(ii) (proposed Sec. 303.320(b)(2)), which
states that informed clinical opinion may not negate the results of
assessment instruments used to establish eligibility.
Discussion: As set forth in new Sec. 303.321(a)(3)(ii), qualified
personnel must use their informed clinical opinion when conducting an
evaluation or an assessment of a child. The use of informed clinical
opinion by qualified personnel is neither an objective criterion nor a
separate assessment strategy. Rather, informed clinical opinion is the
way in which qualified personnel utilize their cumulative knowledge and
experience in evaluating and assessing a child and in interpreting the
results of evaluation and assessment instruments.
With regard to allowing States to define informed clinical opinion
based on that State's definition of developmental delay, we note that
all States must allow qualified personnel, when conducting evaluations,
to use their informed clinical opinion to determine whether the child
meets the State's definition of developmental delay. Given the
Department's monitoring experience in States where qualified personnel
are not permitted to use their informed clinical opinion as a separate
basis to establish eligibility, we have set forth in new Sec.
303.321(a)(3)(ii) that such personnel must be able to use informed
clinical opinion as an alternate basis for establishing eligibility.
Permitting informed clinical opinion to serve as a separate basis to
establish a child's eligibility under part C of the Act is important
given that standardized instruments may not capture the extent of a
child's delay. The purpose of new Sec. 303.321(a)(3)(ii) is to
alleviate the confusion and to expressly permit qualified personnel to
use their informed clinical opinion to establish a child's eligibility
for early intervention services under part C of the Act, even when
other instruments fail to identify or confirm the level of
developmental delay to establish part C eligibility.
Finally, we agree with the commenter that clarification is needed
regarding the last phrase of new Sec. 303.321(a)(3)(ii) (proposed
Sec. 303.320(b)(2)), which states that informed clinical opinion may
not negate the results of assessment instruments used to establish
eligibility. We inadvertently referred to ``assessment'' instruments
instead of ``evaluation'' instruments in proposed Sec. 303.320(b)(2)).
We have corrected this in new Sec. 303.321(a)(3)(ii) to state that in
no case may informed clinical opinion be used to negate the results of
[[Page 60200]]
evaluation instruments used to establish eligibility.
Changes: We have clarified in new Sec. 303.321(a)(3)(ii) (proposed
Sec. 303.320(b)(2)) that qualified personnel must use their informed
clinical opinion when conducting an evaluation or assessment of the
child and replaced the phrase ``assessment instruments'' with the
phrase ``evaluation instruments.''
Comment: One commenter recommended that it should remain a State
option to determine when a low test score for a child, in a domain such
as adaptive behavior, is due to cultural preferences rather than a true
delay.
Discussion: All evaluations and assessments of a child and family
under new Sec. 303.321(a)(4) must be selected and administered so as
not to be racially or culturally discriminatory. In conducting an
evaluation and assessment, the lead agency must ensure that they are
not culturally discriminatory and must permit qualified personnel to
use informed clinical opinion in interpreting the results of evaluation
and assessment instruments.
Changes: None.
Procedures for Assessment of the Family (New Sec. 303.321(c))
(Proposed Sec. 303.320(c))
Comment: A number of commenters stated that the language in
proposed Sec. 303.320(c) regarding voluntary family assessments
appeared to be something that is done ``to'' families and not ``with''
families. The commenters encouraged the Department to consider the term
``family-directed assessment'' in the regulations when referring to a
family assessment in order to make it clear that the family is a
primary partner in the process.
One commenter suggested that the family assessment in new Sec.
303.321(c)(2) (proposed Sec. 303.320(c)) be based on information
obtained through the use of assessment tools, voluntary personal
interviews, or other appropriate methods. Another commenter recommended
that language be added to new Sec. 303.321(c)(2)) (proposed Sec.
303.320(c)) to ensure culturally competent services, including an
awareness and respect of cultural differences in family values and
child rearing practices.
Discussion: We have restructured new Sec. 303.321(c)(2) (proposed
Sec. 303.320(c)) to identify both the purpose and the requirements of
the family assessment, which requirements are set forth in new Sec.
303.321(c)(2)(i) through (c)(2)(iii). We agree with commenters and have
added the term ``family-directed assessment'' from section 636(a)(2) of
the Act to new Sec. 303.321(c)(2) to ensure that the identification of
a family's resources, priorities, and concerns are family-directed.
Concerning the commenter's request to add ``other appropriate
methods,'' new Sec. 303.321(c)(2)(ii) (proposed Sec. 303.320(c))
requires family assessments to be based on information obtained through
an assessment tool and also on information provided by the family
through a personal interview. Nothing in this provision would preclude
the use of additional appropriate methods provided that the family
assessment includes the use of an assessment tool and personal
interview pursuant to new Sec. 303.321(c)(2)(ii) (proposed Sec.
303.320(c)). We do not believe it is appropriate to require all family
assessments to use ``other appropriate methods.''
Concerning the comment on culturally competent services, the
requirements in Sec. 303.321(c)(2)(i) through (c)(2)(iii) ensure that
each family is involved and has the opportunity to meet with a lead
agency or EIS provider to identify their priorities and concerns
regarding the development of the child (i.e., by participating in the
assessment, by providing information in response to the assessment tool
and personal interview, and by providing a description of its
resources, priorities, and concerns related to enhancing the child's
development). We believe family involvement can help ensure that
services that are identified in the IFSP are relevant and culturally
competent.
Changes: We have restructured new Sec. 303.321(c)(2)(i) through
(c)(2)(iii) (proposed Sec. 303.320(c)) to list the requirements of a
family assessment as follows: (1) Be voluntary on the part of each
family member participating in the assessment; (2) Be based on
information obtained through an assessment tool and also through an
interview with those family members who elect to participate in the
assessment; and (3) Include the family's description of its resources,
priorities, and concerns related to enhancing the child's development.
Comment: Two commenters requested that we emphasize the important
role of siblings by including them in new Sec. 303.321(c)(2) (proposed
Sec. 303.320(c)). Other commenters agreed and, in addition to
siblings, requested that new Sec. 303.321(c)(2) (proposed Sec.
303.320(c)) include a reference to grandparents, other family members,
and others who take on roles, responsibilities, or functions
traditionally taken on by family members.
Discussion: New Sec. 303.321(c)(2) (proposed Sec. 303.320(c)) is
based on section 636(a)(2) of the Act, which requires a family-directed
assessment of the resources, priorities, and concerns of the family.
Including a reference to siblings or other individuals who take on the
roles, responsibilities, or functions traditionally performed by family
members is not necessary. The term ``family'' is not exclusive and,
therefore, this term, as it is used in new Sec. 303.321(c)(2)
(proposed Sec. 303.320(c)), would cover any of the individuals
mentioned by the commenters, such as siblings. Not defining this term
will allow individual families to define the term in a manner that best
meets the unique needs of the child involved.
Changes: None.
Determination That a Child Is Not Eligible (New Sec. 303.322)
Comment: None.
Discussion: New Sec. 303.320(a)(2)(ii) (proposed Sec.
303.303(a)(3)) outlines the process a lead agency must follow if,
through screening, the lead agency determines that a child is not
suspected of having a disability under this part. The proposed
regulations did not specify the procedures a lead agency must follow if
it determines, through an evaluation, that a child is not a child with
a disability. We have added a new Sec. 303.322 to clarify the
procedures a lead agency must follow if, after an evaluation is
conducted under new Sec. 303.321 (proposed Sec. 303.320), it
determines that a child is not eligible for services under this part.
Specifically, a lead agency must provide the parent with prior written
notice required by Sec. 303.421, and include in the notice information
about the parent's right to dispute the eligibility determination
through dispute resolution mechanisms, such as requesting a due process
hearing or mediation or filing a State complaint.
Changes: New Sec. 303.322 has been added to identify the
procedures the lead agency must follow if, after conducting an
evaluation, it determines that a child is not eligible for services
under this part.
Individualized Family Service Plans--General (Sec. 303.340)
Comment: Many commenters expressed concern about the definition of
multidisciplinary in proposed Sec. 303.24 because they believed this
definition, used in the context of multidisciplinary IFSP Teams, could
result in an IFSP Team being comprised of only one member other than
the parent. These commenters argued that such a result is neither
consistent with best practices nor the requirements in
[[Page 60201]]
section 636(a)(3) of the Act regarding a multidisciplinary team
developing the IFSP.
Discussion: As noted in the Analysis of Comments and Changes
section for Sec. 303.24, we agree with commenters regarding the
definition of multidisciplinary as it applies to IFSP Teams and have
added in Sec. 303.340, concerning the development, review, and
implementation of an IFSP, a reference to the ``multidisciplinary team,
which includes the parents'' to reflect the requirements in section
636(a)(3) of the Act. The IFSP participant requirements in Sec.
303.343, together with Sec. Sec. 303.24(b) and 303.340, clarify that
the multidisciplinary IFSP Team requires the involvement of the parent
and two or more individuals from separate disciplines or professions,
one of whom must be the service coordinator.
Changes: We have added after the reference to ``IFSP'' in Sec.
303.340 the following phrase ``developed by a multidisciplinary team,
which includes the parents'' from section 636(a)(3) of the Act.
Procedures for IFSP Development, Review, and Evaluation (Sec. 303.342)
Comment: None.
Discussion: Based upon further review of Sec. 303.342(a), we have
determined that it is not entirely accurate to refer to children who
have ``been evaluated for the first time and determined to be eligible
under this part'' in the lead-in to this section because, as stated in
new Sec. 303.321(a)(3)(i) (proposed Sec. 303.320(a)(2)(iii)), a
child's part C eligibility can be established through a review of his
or her medical or other records, without the child being evaluated.
Changes: We have deleted the phrase ``for a child who has been
evaluated for the first time and determined to be eligible under this
part'' from Sec. 303.342(a) and have inserted, in its place, ``for a
child referred to the part C program and determined to be eligible
under this part as an infant or toddler with a disability.''
Comment: Some commenters recommended that Sec. 303.342 be revised
to require IFSP Teams, in developing the IFSP of an infant or toddler
with a disability, to consider the same special factors that IEP Teams
must consider under 34 CFR 300.324(a)(2) of the part B regulations.
These commenters suggested requiring every IFSP Team to consider
strategies to address the following: (1) Specific behaviors of an
infant or toddler with a disability whose behavior impedes his or her
development or the development of other infants or toddlers with
disabilities; (2) the language needs of an infant or toddler with a
disability who has limited English proficiency; (3) the need for
instruction in braille for an infant or toddler who is blind or
visually impaired; (4) the communication needs of an infant or toddler
who is deaf or hard of hearing, including instruction in his or her
language and communication mode; and (5) whether the infant or toddler
with a disability needs assistive technology devices and services to
ensure that infants and toddlers with disabilities in these groups
receive appropriate services to meet their language, literacy, and
other needs.
Discussion: The commenters referenced the special factors in 34 CFR
300.324(a)(2) of the part B regulations, which are from 614(d)(3)(B) of
the Act. Part C of the Act does not contain similar specific language
regarding special factors that must be considered by the IFSP Team.
However, it is the Department's position that the regulations, as
written, adequately address the commenters' concerns. Section
303.344(d)(1) requires that each IFSP include a statement of the
specific early intervention services that are necessary to meet the
unique needs of the child and the family to achieve the results or
outcomes identified in the IFSP. Therefore, each IFSP Team must explore
any factor (including, as applicable and appropriate, the factors
included in 34 CFR 300.342(a)(2)) that are relevant to an infant or
toddler with a disability achieving the results or outcomes identified
in his or her IFSP.
Changes: None.
Comment: None.
Discussion: For clarification, we have added the words ``results
or'' before ``outcomes'' and added ``identified in the IFSP'' after the
reference to ``outcomes'' and ``services'' in Sec. 303.342(b)(1)(i)
and (b)(1)(ii).
Changes: We have added the words ``identified in the IFSP'' after
the word ``outcomes'' and the word ``services,'' in Sec.
303.342(b)(1)(i) and (b)(1)(ii), respectively.
Comment: One commenter recommended that the regulations retain Note
2 following current Sec. 303.344. This note recognizes the importance
of the variety of roles that family members play in enhancing a child's
development throughout the IFSP process, the importance of addressing
the needs of the family in the IFSP process in a collaborative manner,
and the parents' retention of the ultimate decision in determining
whether they, their child, or other family members will accept or
decline services under this part.
Discussion: Including Note 2 from current Sec. 303.344 is not
necessary because part of the note (regarding a parent's right to
accept or decline services) is reflected in Sec. 303.342(e) and the
remainder of the note does not reflect regulatory requirements but,
instead, is explanatory. As reflected in Sec. 303.342(e), parents make
the ultimate decision as to whether they, their child, or other family
members will accept or decline services under this part.
Removal of the note does not in any way change the policy of the
Department. We continue to believe that best practice dictates that
throughout the process of developing and implementing IFSPs for an
infant or toddler with a disability, the lead agency, service
coordinators, and EIS providers need to recognize the variety of roles
that family members play in enhancing a child's development.
Additionally, addressing the needs of the family in the IFSP process is
crucial and should be determined in a collaborative manner with the
full agreement and participation of the parent of the infant or
toddler.
Changes: None.
Comment: Several commenters expressed opposition to replacing the
term ``ongoing assessment of child and family'' in current Sec.
303.342(c) with the term ``assessment of service needs'' in proposed
Sec. 303.342(c) and requested clarification of the meaning of the term
``service needs'' in this section.
Discussion: The term ``service needs'' was included in the proposed
regulations to be consistent with the use of that term in new Sec.
303.321 (proposed Sec. 303.320). However, as discussed earlier in this
preamble in the Analysis of Comments and Changes section in response to
comments on the use of the term ``service needs'' in proposed Sec.
303.320, we no longer use the term in new Sec. 303.321 (proposed Sec.
303.320) or any other section of these regulations. We, therefore, have
removed the phrase from Sec. 303.342(c) and replaced it with the
phrase ``the child and family'' to be consistent with new Sec. 303.321
(proposed Sec. 303.320).
Changes: The phrase ``service needs'' has been removed from Sec.
303.342(c) and replaced with the words ``the child and family.''
Comment: One commenter recommended amending Sec. 303.342(d)(1)(ii)
to require a lead agency to exhaust all possible options for conducting
IFSP meetings in the native language of the family because part C of
the Act makes clear that involvement of the family in the IFSP
[[Page 60202]]
process is critical. The commenter was concerned that the current
regulatory language allows too much room for a lead agency to claim
that it is ``not feasible'' to conduct the IFSP meeting in a family's
native language. The commenter stated that, given the availability of
resources such as bilingual staff, interpreters, and telephonic
interpreter service, it should be feasible to ensure that IFSP meetings
are conducted in the family's native language.
Discussion: Section 303.342(d)(1)(ii) requires that IFSP meetings
be conducted 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. Thus, lead agencies should consider the availability of native
language resources, such as those listed by the commenter, when
determining whether it is feasible to conduct the IFSP meeting in the
native language of the family. However, given that the U.S. Census
Bureau recognizes over 300 languages used in the United States (not
including dialects), it may not be feasible, in every instance, to
provide interpreter services with respect to a particular native
language because an interpreter of that language may not be available.
Changes: None.
Comment: One commenter suggested that the lead agency should be
allowed to provide notice to the child's family and other participants
of the IFSP Team meeting under Sec. 303.342(d)(2) by electronic mail
(e-mail) or documentation of a phone call arranging the meeting, and
not only by providing written notice. The commenter further stated that
parents should be given the option to waive receiving written
notification of the meeting in favor of another method of notification.
Discussion: The IFSP written notice requirement in Sec.
303.342(d)(2) is substantively unchanged from current Sec.
303.342(d)(2). Nothing in the regulations prohibits States from
providing additional notice of the IFSP meeting by, for example,
electronic mail or phone call, but, at a minimum, it must provide
written notice to the family and other participants to ensure that they
can attend the IFSP meetings.
Changes: None.
Comment: Two commenters suggested that the requirements in Sec.
303.342(e), regarding informed parental consent for services, are
similar to those in Sec. 303.420(d), regarding parental consent and
the ability to decline services, and stated that the two sections
should be merged or cross-referenced. Another commenter requested that
the term ``parental consent'' as used in Sec. 303.342(e) should be
further defined. Specifically, the commenter expressed concern that
Sec. 303.342(e) requires the lead agency only to obtain informed
consent prior to the provision of early intervention services, and not
informed written consent as required by the Act.
Discussion: Section 303.342(e) is consistent with Sec.
303.420(a)(3) and (d) regarding parental consent. The term ``parental
consent'' in Sec. 303.342(e) is consistent with the statutory language
in section 636(e) of the Act (which refers both to ``parental consent''
and ``informed written consent from the parents'') and the definition
of consent in Sec. 303.7. The term parental consent, as used in Sec.
303.342(e), must meet the definition of consent in Sec. 303.7. (In
this case, the word ``parental'' modifies the term ``consent,'' which
has a specific definition in these regulations under Sec. 303.7.) To
further clarify, we have added cross-references to Sec. 303.7, which
requires that the parent understand and agree in writing when giving
consent, and Sec. 303.420(a)(3), which requires the lead agency to
ensure that parental consent is obtained prior to providing early
intervention services to a child. Also, in the interest of clarity and
tracking statutory language, we have added the word ``written'' to the
phrase ``informed consent.''
Changes: We have added in Sec. 303.342(e) cross-references to
Sec. Sec. 303.7 and 303.420(a)(3) and revised the phrase ``informed
consent'' to include the word ``written.''
Comment: In response to the 45-day timeline in new Sec. 303.310
(proposed Sec. 303.320(e)) and the language in Sec. 303.344(f)(1),
regarding the timeline by which services identified in a child's IFSP
must be initiated, a few commenters requested that the regulations
identify a timeline for the provision of services.
Discussion: We have clarified in Sec. Sec. 303.342(e) and
303.344(f)(1) that early intervention services must be provided as soon
as possible after obtaining parental consent. We believe that it is
important for the timeline to run from the date of parental consent and
not from the initiation date identified at the IFSP meeting, as is
provided for in current Sec. 303.344(f)(1). A State may only provide a
service identified in the IFSP if a parent provides consent under Sec.
303.420. In some instances, even if the IFSP is developed with a
service initiation date, a parent may not have provided consent to the
service and, therefore, the service may not be provided. Thus, we have
revised the time period to commence from the date of parental consent.
Currently, most States have adopted a 30-day timeline that
commences from the date of parental consent to the date the services in
the IFSP are provided with some States adopting a shorter timeline and
only a few States adopting a slightly longer timeline (e.g., 45 days),
which timeline also commences from the date of parental consent to the
date the services in the IFSP are provided. We do not believe it is
appropriate to adopt a time period more specific than ``as soon as
possible'' for the provision of all early intervention services
identified in an IFSP. While each State must ensure that services in an
IFSP are provided as soon as possible after receiving parental consent,
we believe that ``as soon as possible'' may vary depending on a number
of factors, such as the availability of qualified personnel in a State,
the number of children to be served, and the location of those
children. While we give States some flexibility in implementing this
provision, we also monitor, through the SPP/APR, data on when each
State initiates services for each child. Thus, we decline to adopt in
Sec. Sec. 303.342(e) and 303.344(f)(1) a timeline more specific than
``as soon as possible.''
Changes: We have clarified in Sec. Sec. 303.342(e) and
303.344(f)(1) that early intervention services must be provided as soon
as possible after parental consent is obtained.
IFSP Team Meetings and Periodic Reviews (Sec. 303.343)
Comment: A few commenters recommended amending Sec.
303.343(a)(1)(v) to require that the individual or individuals directly
involved in conducting the evaluations and assessments in new Sec.
303.321 (proposed Sec. 303.320) must have knowledge and training
related to the infant's or toddler's disability.
Discussion: The requested change is not necessary because, as we
explained in the Analysis of Comments and Changes in response to
comments received on new Sec. 303.321(a), the individuals responsible
for conducting evaluations and assessments under new Sec.
303.321(a)(2)(i) and (a)(2)(ii) (proposed Sec. 303.320(a)(3)) must be
qualified personnel.
Qualified personnel, under Sec. 303.31, are individuals who meet
State-approved or State-recognized certification, licensing,
registration, or other comparable requirements that apply to the
developmental area in which the individuals are conducting an
evaluation or assessments or providing early intervention services.
Given the definition of qualified personnel in Sec. 303.31, it is
unnecessary to amend
[[Page 60203]]
Sec. 303.343(a)(1)(v) as requested by the commenter.
Changes: None.
Comment: Some commenters expressed concern that the required
participants for the periodic review of the IFSP in Sec. 303.343(b) do
not include the individuals (such as the individuals who conducted the
evaluations and assessments, unless conditions warrant) who are
required to participate in the initial and annual IFSP review under
Sec. 303.343(a). Specifically, the commenters stated that the
regulations limit the ability of parents under Sec. 303.343(a)(1)(i)
and (ii) to include participants of their choosing in the periodic
review of the IFSP.
Discussion: Section 303.343(b) makes clear that individuals: (1)
Who are directly involved in conducting evaluations and assessments or
(2) who provide early intervention services are not required to be
invited or attend the IFSP periodic review meeting unless ``conditions
warrant.'' An example of a condition under Sec. 303.342(b) that may
warrant the attendance of the qualified personnel who conducted an
evaluation at the IFSP periodic review meeting is if that individual
conducted a reevaluation of an infant or toddler with a disability and
the results of that evaluation will be discussed at the periodic
review. Additionally, reviewing the child's progress in a particular
developmental area may require the participation of the EIS provider(s)
in those areas. In such instances, the lead agency must ensure the
participation of those individuals.
However, while the issues at an IFSP periodic review meeting vary,
the periodic reviews are usually limited to reviewing the child's
progress towards the measurable results or outcomes. The periodic
review is less formal than the initial or annual IFSP meeting and may
be done through a teleconference, a face-to-face meeting or other means
acceptable to the parents and other participants. Requiring the
attendance of individuals referenced in Sec. 303.343(a)(1)(v) and
(a)(1)(vi) at every IFSP periodic review meeting would be burdensome
and unnecessary and thus we refrain from making the change requested by
the commenter.
The commenter correctly notes that a parent may invite advocates or
individuals outside of the family to periodic reviews under Sec.
303.343(a)(1)(ii). However, that provision may not be used to override
the lead agency's determination of when conditions warrant the
attendance of individuals directly involved in conducting evaluations
and assessments or who are EIS providers.
Changes: None.
Content of an IFSP (Sec. 303.344)
Results or Outcomes (Sec. 303.344(c))
Comment: A few commenters requested that the parenthetical phrase
referencing the inclusion of pre-literacy and language skills as
developmentally appropriate for the child be deleted from Sec.
303.344(c). One commenter stated that adding this parenthetical phrase
to this section, which requires that a child's IFSP include a statement
of the measurable results or measurable outcomes expected to be
achieved by the child, creates confusion between part C and part B
responsibilities. The commenter recommended replacing the proposed
language in the parenthetical with ``communication or social and
emotional developmental goals.''
Discussion: Under Sec. 303.344(c), the IFSP must include, among
other things, 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. The phrase ``including pre-literacy and language skills as
developmentally appropriate for the child'' is from section 636(d)(3)
of the Act. Thus, it would not be appropriate to delete this language
and replace it with other language. Concerning the confusion between
part C and part B responsibility, pre-literacy and language skills
emerge during infancy and, therefore, should be a measurable result or
measurable outcome that is developmentally appropriate for a child
served under the part C program.
Changes: None.
Comment: A few commenters requested that we provide definitions for
the terms ``measurable results'' and ``measurable outcomes,'' as those
terms are used in Sec. 303.344(c). These commenters also questioned
whether it was necessary for this section to include both terms.
Discussion: Section 303.344(c) incorporates language from section
636(d)(3) of the Act, which requires that the IFSP contain a statement
of the ``measurable results or outcomes expected to be achieved for the
infant or toddler and the family.'' The Department interprets the word
``measurable'' in this section of the Act to modify both the words
``results'' and ``outcomes.'' For this reason, it is appropriate to
clarify, in Sec. 303.344(c), that the IFSP must contain measurable
results or measurable outcomes. Further clarification is not necessary
given that there is little material difference, for IFSP content
purposes, between the meaning of the terms ``results'' and ``outcomes''
and we use these terms in the regulation because they are both
referenced in the section 636 of the Act.
Changes: None.
Comment: Two commenters recommended that the word ``functional'' be
inserted before every use of the word ``outcomes'' in these
regulations. Two other commenters requested that, for clarity, the word
``expected'' be inserted before the words ``results, outcomes, or early
intervention services'' in Sec. 303.344(c)(2).
Discussion: We agree with the commenters who recommended we add the
term ``expected'' before the words ``results, outcomes, or early
intervention services are necessary'' in Sec. 303.344(c)(2).
Therefore, we have made the requested change.
We decline to add the adjective ``functional'' every time the word
``outcomes'' is used in these regulations because not all outcomes are
functional; for example, for children receiving services under Sec.
303.211, outcomes may be educational.
Changes: We have added the term ``expected'' before the words
``results, outcomes, or early intervention services are necessary'' in
Sec. 303.344(c)(2).
Early Intervention Services (Sec. 303.344(d))
Comment: Some commenters requested that the term ``peer-reviewed
research'' in Sec. 303.344(d)(1) be defined or removed. Most of the
commenters recommended that we use a definition that is consistent with
the National Research Council's use of the term. Two commenters were
concerned about a potential conflict between the use of the term
``peer-reviewed research'' in this section and the use of
``scientifically based research'' in Sec. 303.112, regarding the
availability of early intervention services. Another commenter stated
that the term ``peer-reviewed'' is not used in the Act, and argued that
because the term ``scientifically based research'' is used in the Act
it should be used in this section, rather than the term ``peer-
reviewed.''
Discussion: In the Analysis of Comments and Changes section for
Sec. 303.112, we discuss the definition of the term ``peer-reviewed
research.'' We also address in that section the differences in meaning
between the term ``scientifically based research,'' as used in section
635(a)(2) of the Act and Sec. 303.112 of these regulations, and ``peer
reviewed research,'' as used in section 636(d)(4) of the Act and Sec.
303.344(d) of these regulations. We disagree with the commenter who
stated that the term
[[Page 60204]]
``peer-reviewed research'' is not used in the Act; as noted elsewhere
in this discussion, section 636(d)(4) of the Act, which is the
statutory basis for Sec. 303.344(d), refers to peer-reviewed research,
not scientifically based research.
Changes: None.
Comment: One commenter requested that the regulations define the
phrase ``to the extent practicable'' as used in Sec. 303.344(d)(1).
Discussion: As noted in Sec. 303.112 of the Analysis of Comments
and Change, defining the phrase ``to the extent practicable'' is not
needed. In the context of these regulations, the term has its plain
meaning (i.e., feasible or possible). As it is used to modify the
extent to which early intervention services in a child's IFSP are based
on peer-reviewed research in Sec. 303.344(d)(1), we note that this
phrase is from section 636(d)(4) of the Act. As used in this context,
the phrase generally means that specific early intervention services
should be based on peer-reviewed research to the extent that it is
feasible or possible, given the availability of peer-reviewed research
on the early intervention services determined to be most appropriate to
respond to the child's needs and strengths identified pursuant to
information from the child's evaluations and assessments under Sec.
303.321.
Changes: None.
Comment: A few commenters requested that Sec. 303.344(d)(1) be
amended to require IFSP Teams to consider the same special factors that
IEP Teams must consider under 34 CFR 300.324(a)(2) of the part B
regulations.
Discussion: These comments are addressed in the Analysis of
Comments and Changes for subpart D in response to the comments on Sec.
303.342.
Changes: None.
Comment: Some commenters expressed concern that the terms
``frequency,'' ``intensity,'' ``method,'' ``length,'' and ``duration''
in Sec. 303.344(d)(1)(i) do not reflect the language in the Act and
would require significant revisions to forms and training for staff.
The commenters requested that the terms and their definitions be
removed from the regulations.
Discussion: All of the terms mentioned by the commenters are taken
directly from the Act. Section 636(d)(4) of the Act requires the IFSP
to include a statement of the specific early intervention services
based on peer-reviewed research, to the extent practicable, necessary
to meet the unique needs of the infant or toddler and the family,
including the frequency, intensity, and method of delivering those
services. Additionally, section 636(d)(6) of the Act requires the IFSP
to include the anticipated length, duration, and frequency of the early
intervention services identified in the IFSP.
Changes: None.
Comment: One commenter recommended expanding the requirements in
Sec. 303.344(d)(1)(ii)(B) to require that, in the case of an infant or
toddler who is deaf or hard of hearing, the IFSP Team must: (a)
Consider home, community, and program settings that provide full
support for language and communication development for the child and
family; (b) base recommendations for the appropriate setting for
providing services on a comprehensive assessment of the child and the
family's priorities, resources, and concerns; (c) provide families with
comprehensive information about all programs and providers; (d)
encourage families to visit all programs providing services to young
children; (e) support families in selecting the programs, providers,
settings, and services that best meet the needs of the child and
family; and (f) recommend programs and services that employ qualified
providers who are fluent users of the language(s) and modes of
communication of the child.
Discussion: An IFSP Team may conclude that it is appropriate to
address the factors presented by the commenter, as well as any other
factors that the IFSP Team, which includes the child's parent,
considers relevant to a determination concerning the appropriate
setting for the provision of an early intervention service that meets
the child's unique strengths and needs, including those of infants or
toddlers who are deaf or hard of hearing. Thus, it would be
impracticable to identify all potential factors concerning service
settings because such factors are guided by the measurable outcomes or
measurable results expected to be achieved for the infant or toddler
with a disability.
Changes: None.
Comment: Some commenters requested clarification of the phrase ``if
applicable'' in Sec. 303.344(d)(1)(ii)(A) regarding the justification
needed if a service is not provided in the natural environment. The
commenters expressed concern that some individuals may interpret the
language to mean that a justification is not always required for
services that are not provided in the natural environment and may
prompt lead agencies and EIS programs to provide services in settings
other than the natural environment even though that setting may not
necessarily be appropriate.
Discussion: Pursuant to section 636(d)(5) of the Act, justification
is required when the IFSP Team (not the lead agency or EIS program)
determines that early intervention services will be provided in a
setting other than the natural environment. We did not intend for the
phrase ``if applicable'' to modify this requirement. Thus, we have
removed the phrase ``if applicable'' to alleviate potential confusion.
Additionally, we have revised Sec. 303.344(d)(1)(ii)(A) to require
that the IFSP include a statement that each early intervention service
is provided in the natural environment to the maximum extent
appropriate or, a justification as to why an early intervention service
will not be provided in the natural environment. We believe that these
changes make clear that a justification is always required when early
intervention services are not provided in the natural environment for
the child or service.
Changes: We have removed the phrase ``if applicable'' from Sec.
303.344(d)(1)(ii)(A). Additionally, we have revised Sec.
303.344(d)(1)(ii)(A) to require the IFSP to include (i) a statement
that each early intervention service is provided in the natural
environment for that child or service to the maximum extent
appropriate, consistent with Sec. Sec. 303.13(a)(8), 303.26 and
303.126, or, subject to Sec. 303.344(d)(1)(ii)(B), and (ii) a
justification as to why an early intervention service will not be
provided in the natural environment.
Comment: Many commenters requested clarification on when early
intervention services may be provided in the natural environment and
when it is appropriate to provide a service in a setting that is not
considered the natural environment. A few commenters recommended that
Sec. 303.126 be amended to allow parents to unilaterally decide where
their infant or toddler with a disability will receive early
intervention services. Another commenter recommended that Sec. 303.126
allow other family members to be involved in determining the natural
environments in which early intervention services will be provided. Two
commenters recommended clarifying that an infant or toddler with a
disability may receive services in a setting that is not the natural
environment when the IFSP Team, which includes the parent, agrees that
services should not be delivered in the natural environment. One
commenter requested that the Department emphasize that selection of the
natural environment for a particular infant or
[[Page 60205]]
toddler with a disability must be an individualized decision and that
the State must monitor EIS providers to ensure that all natural
environment decisions are individualized for each child by the child's
IFSP Team.
Discussion: Section 303.344(d)(1)(ii), when read together with
Sec. 303.126, regarding early intervention services in natural
environments, clarifies that the selection of the early intervention
service setting for an infant or toddler with a disability is an
individualized decision. Additionally, Sec. 303.700(a)(1), regarding
State monitoring and enforcement, clarifies that the lead agency must
monitor the implementation of this part. Early intervention in the
natural environment has been the subject of the Department's focused
monitoring. We do not believe that any additional emphasis is
necessary.
Nevertheless, we recognize that it may not always be practicable or
appropriate for an infant or toddler with a disability to receive an
early intervention service in the natural environment based either on
the nature of the service or the child's specific outcomes. For
example, the IFSP Team may determine that an eligible child needs to
receive speech services in a clinical setting that serves only children
with disabilities in order to meet a specific IFSP outcome. When the
natural environment is not chosen with regard to an early intervention
service, the IFSP Team must provide, in the IFSP, an appropriate
justification for that decision.
Consistent with section 635(a)(16)(B) of the Act and under Sec.
303.344(d)(ii)(B), the setting for the provision of early intervention
services under part C of the Act is made by the IFSP Team. It is the
responsibility of the IFSP Team (which includes the parent and may
include other family members who are invited by the parent under Sec.
303.343) to determine the most appropriate setting where each early
intervention service will be provided for an infant or toddler with a
disability based on the child's unique needs and outcomes.
Under Sec. 303.343(a), family members may attend an IFSP meeting
if requested by the parent, and if feasible to do so. Thus, we decline
to revise Sec. 303.126 to include family members, as suggested by one
of the commenters, because a parent--not the lead agency--determines
whether to invite additional family members to IFSP meetings.
Concerning the commenter who suggested that early intervention
services could not be provided in a setting other than the natural
environment and the commenters who conversely requested that the
regulations clarify that early intervention services may be provided in
a setting other than the natural environment, sections 635(a)(16)(B)
and 636(d)(5) of the Act recognize that there may be situations in
which an early intervention service cannot be provided in the natural
environment. Section 303.344(d)(1)(ii), consistent with section
636(d)(5) of the Act, requires that the IFSP include a justification of
the extent, if any, that an early intervention service will not be
provided in the natural environment. In these instances, the IFSP Team
(which includes the child's parents and other family members, at the
parent's request) must identify whether the service can be provided in
the natural environment and if it cannot, then the IFSP Team must
document in the IFSP the justification for why that service is not
provided in the natural environment (i.e., why the alternative service
setting is needed for the child to meet the developmental outcomes
identified for the child in his or her IFSP).
Changes: None.
Comment: One commenter requested that the word ``functional'' be
included to define outcomes as used in Sec. 303.344(d)(1)(ii)(B)(3).
Discussion: We address this comment in the Analysis of Comments and
Changes section on Sec. 303.344(c).
Changes: None.
Comment: Some commenters recommended that natural environment
settings be determined based on a child's needs rather than on
outcomes, as required by Sec. 303.344(d)(1)(ii)(B)(3).
Discussion: We believe that the commenters' concerns are addressed
because when developing outcomes for the IFSP, the IFSP Team must
consider the needs of the child based on the results of the evaluation
and assessments of the child and the family pursuant to Sec.
303.344(a) and (b). Once the outcomes are developed, the IFSP Team,
including the parent, determines which early intervention services are
necessary to achieve the expected outcomes and the setting(s) in which
those services will be provided.
Changes: None.
Comment: Two commenters expressed concern that Sec.
303.344(d)(2)(iv) would require an IFSP Team to project when a given
service will no longer be provided. The commenters stated that some
infants and toddlers with disabilities may require a particular early
intervention service for the duration of their participation in the
part C program and it would be inappropriate for an IFSP Team to
project that far into the future.
Discussion: The purpose of the language in Sec. 303.344(d)(2)(iv)
is to help ensure accountability by requiring IFSP Teams to consider
and periodically review the duration of a given service during the
period in which a child is eligible to receive early intervention
services and to anticipate when the child is expected to achieve
certain results or outcomes associated with the receipt of the service.
The duration of a service must be discussed and, if necessary, amended
annually at the IFSP meeting.
We appreciate that the IFSP Team will not always know how long a
particular service will be needed to achieve the measurable outcomes or
results in the child's IFSP. What is critical is that the IFSP Team
evaluates and re-evaluates whether the expected outcomes are being
achieved at the appropriate pace. If the IFSP Team miscalculates how
long a particular service will be provided, it can amend the IFSP
during a periodic review. Due to the rapidly changing needs of infants
and toddlers and the need for accountability in making sure the
appropriate services are provided, it is important for families to
participate in periodic and annual reviews in order to help make
decisions about modifications to the IFSP based on the child's present
level of development.
Changes: None.
Comment: A few commenters expressed concern about the requirement
in Sec. 303.344(d)(4) that the IFSP include an educational component
that promotes school readiness and incorporates pre-literacy, language,
and numeracy skills for children who are at least three years of age.
The commenters stated that this requirement seemed to apply to any
preschooler that has an IFSP and stated that the requirement was
inconsistent with several provisions in the part B regulations in 34
CFR part 300. Specifically, the commenters stated that Sec.
303.344(d)(4) was inconsistent with 34 CFR 300.323(b), regarding when
an IFSP may serve as the IEP for children with disabilities aged three
through five. Additionally, the commenters stated that Sec. 300.320
does not explicitly require that the IEPs of children with disabilities
in preschool include these IFSP content components. Another commenter
stated that requiring an educational component in every IFSP of a child
aged three through five is inappropriate because IFSP Teams must
determine the individual needs of a child with a disability. One
commenter requested that the Department clarify that the requirements
in Sec. 303.344(d)(4) only
[[Page 60206]]
apply to States that elect to serve children past age three.
Discussion: The requirement in Sec. 303.344(d)(4) 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 is directly from section
632(5)(B)(ii) of the Act. Section 303.344(d)(4) is consistent with 34
CFR 300.323(b) of the part B regulations. It is not necessary under
part B of the Act to require an educational component for children with
disabilities who receive preschool services under IEPs because the
definition of an IEP in 34 CFR 300.112 of the part B regulations
identifies by cross-reference the many educational components of the
IEP.
Section 303.344(d)(4) and 34 CFR 300.323(b) of the part B
regulations both require all IFSPs for children age three and older to
include an educational component that promotes school readiness, and to
incorporate pre-literacy, language, and numeracy skills. Children age
three and older who have IFSPs under part C of the Act would be those
children receiving services in States that have elected to serve
children under the option in Sec. Sec. 303.211 and 303.501(d) or under
the option to provide services to children beyond age three until the
beginning of the school year in Sec. 303.501(c)(1). Both the Act and
these regulations are clear and need no further clarification.
Changes: None.
Other Services (Sec. 303.344(e))
Comment: Some commenters requested that this paragraph be amended
to explicitly include childcare as an ``other service.''
Discussion: Section 303.344(e) states that the IFSP must, to the
extent appropriate, 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. While childcare is not
specifically included in paragraph (e) of this section, an IFSP Team
may decide, when appropriate, to identify childcare as an ``other
service'' that is not required under part C of the Act. We decline to
revise the regulations as requested by the commenter because listing
every service that may be considered as an ``other service'' would be
impractical.
Changes: None.
Comment: Some commenters agreed with removing 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,
stating that the requirement was both beyond the scope of part C
services and an additional burden on lead agencies. However, other
commenters disagreed, arguing that, absent such information in the
IFSP, children might not receive the additional services that they
need, which would defeat the purposes of the Act to ensure that early
intervention services are provided in order to reduce the need for
services as the child matures.
Discussion: Section 303.344(e)(2) requires that, if a child or
family needs medical and other services and these services are not
currently being provided, the IFSP must include a description of the
steps the service coordinator or family may take to assist the child
and family in securing those services. The regulations no longer
require the IFSP Team to identify, and service coordinators to
coordinate, funding sources for these services (those not required
under part C). We believe that Sec. 303.344(e)(2), with this change,
will help families receive additional services, without unduly
burdening IFSP Teams and service coordinators who may have limited
knowledge about funding for services provided by other programs.
Changes: None.
Dates and Duration of Service (Sec. 303.344(f))
Comment: None.
Discussion: We have made technical edits to Sec. 303.344(f)(1) to
cross-reference the consent provisions applicable to this section--that
is, paragraph (e) of Sec. 303.342 (parental consent) and Sec.
303.420(a)(3) (consent for early intervention services). For clarity
and consistency with these regulations, we also have inserted the words
``early intervention'' before the word ``service.'' As noted in the
Analysis of Comments and Changes section discussing Sec. 303.342(e),
we have revised, in Sec. 303.344(f)(1), the timeline that services
begin ``as soon as possible'' after parental consent (instead of ``as
soon as possible'' after the initiation date identified in the IFSP in
current Sec. 303.344(f)(1)).
Changes: We have replaced, in Sec. 303.344(f)(1), after the words
``as soon as possible'' the phrase ``after the IFSP meetings described
in Sec. 303.342'' with the words ``after the parent consents to the
service, as required.'' We also have added references to Sec.
303.342(e) and Sec. 303.420(a)(3). Additionally, we have inserted the
words ``early intervention'' before the word ``service.''
Service Coordinator (Sec. 303.344(g))
Comment: One commenter requested that the regulations require
service coordinators to be responsible for facilitating the full
implementation of the IFSP. The commenter also requested that the
regulations stipulate that the service coordinator for a particular
infant or toddler with a disability may not be an EIS provider
providing early intervention services to that particular infant or
toddler with a disability.
Discussion: Section 303.344(g), when read together with Sec.
303.33, the definition of service coordination services (case
management), clarifies that the service coordinator is responsible for
implementing the early intervention services identified in a child's
IFSP. We do not agree with the commenter that the service coordinator
for a particular infant or toddler with a disability cannot be an EIS
provider for that particular infant or toddler with a disability,
because the model of service coordination can vary from one State to
another as well as among local communities because of such
distinguishing factors as population size and economic, social, or
cultural differences. Regardless of the model chosen by a State, we
expect service coordination services to remain family centered.
Changes: None.
Transition From Part C Services (Sec. 303.344(h))
Comment: None.
Discussion: For consistency with section 636(a)(3) of the Act and
Sec. 303.344(h)(2)(iv), we have clarified that the IFSP must include
not only transition steps but transition services needed to support the
smooth transition of a child who is exiting the part C program.
Changes: We have added the phrase ``and services'' after the word
``steps'' to Sec. 303.344(h)(1).
Comment: One commenter supported the requirement in Sec.
303.344(h)(2)(iii) to obtain parental consent before transmitting
additional information about a child to the LEA and requested
clarification of the basic information that must be provided to the LEA
representative at the transition conference or IFSP meeting to develop
the transition plan. Another commenter noted that careful documentation
will be needed to ensure that parental consent is obtained.
Discussion: To clarify the relationship between Sec. Sec.
303.344(h) and 303.209 regarding transition, we have added the words
``smooth'' and ``from part C services'' in Sec. 303.344(h)(1). We also
have revised Sec. 303.344(h)(2)(iii) to clarify that the transition
steps and services in the IFSP must include confirmation that child
find information
[[Page 60207]]
was transmitted to the LEA or other relevant agency.
With regard to the comments regarding parental consent in Sec.
303.344(h)(2)(iii), we have clarified that parental consent must be
obtained if personally identifiable information is disclosed as
required under Sec. 303.414. Given that personally identifiable
information is discussed at the IFSP meeting to develop a transition
plan, if the LEA representative is from an LEA that is not a
participating agency under Sec. 303.403(c) or if attendance is
required of other individuals who are not employees or representatives
of participating agencies, parental consent is required under Sec.
303.414 for the lead agency to be able to disclose personally
identifiable information to these individuals at the meeting.
We also have clarified that the additional information to be
provided to the LEA to ensure continuity of services includes a copy of
the most recent evaluation and assessments of the child and family and
the most recent IFSP.
Changes: We have added the words ``smooth'' and ``from part C
services'' in Sec. 303.344(h)(1). We also have added the words
``confirmation that'' to precede the words ``child find information''
and ``if required under Sec. 303.414'' to follow the phrase ``parental
consent'' in Sec. 303.344(h)(2)(iii). We also have clarified that the
additional information in Sec. 303.344(h)(2)(iii) includes a copy of
the most recent evaluation and assessments of the child and family and
the most recent IFSP.
Comment: One commenter stated that the requirement in proposed
Sec. 303.344(h)(1)(iii) that an IFSP include the steps that must be
taken to support the transition of the child to early education, Head
Start and Early Head Start, or child care programs is inappropriate
because it is not required in the Act. This commenter requested that
the requirement be removed from the regulations.
Discussion: We agree with the commenter that requiring transition
to specific educational or child care programs may not be appropriate
for every child and the phrase ``other appropriate services'' covers
such programs. The programs identified in proposed Sec.
303.344(h)(1)(iii) were intended to be examples of programs into which
children may transition from part C services. However, early education,
Head Start, Early Head Start, or child care programs are covered
through the reference to other appropriate services in proposed Sec.
303.344(h)(1)(iv), which stated that the IFSP must include the steps to
be taken to support the transition of the child, in accordance with
Sec. 303.209, from part C services to other appropriate services.
Therefore, to eliminate duplication, we have removed proposed Sec.
303.344(h)(1)(iii). We also note that the reference in Sec.
303.344(h)(1)(i) to elementary school or preschool was incorrect and
are revising Sec. 303.344(h)(1)(ii) to refer to ``part C services
under Sec. 303.211.''
Changes: We have removed proposed Sec. 303.344(h)(1)(iii) and
redesignated proposed Sec. 303.344(h)(1)(iv) as Sec.
303.344(h)(1)(iii). We have revised Sec. 303.344(h)(1)(ii) to refer to
``part C services under Sec. 303.211.''
Interim IFSPs--Provision of Services Before Evaluations and Assessments
Are Completed (Sec. 303.345)
Comment: None.
Discussion: To improve clarity, we have added ``interim IFSPs'' to
the title of this section.
Changes: We have added ``Interim IFSPs'' to the title of Sec.
303.345.
Responsibility and Accountability (Sec. 303.346)
Comment: None.
Discussion: For consistency throughout the regulations, we have
clarified that the agency referenced in Sec. 303.346 is the public
agency (defined in Sec. 303.30) and the person referenced in this
section is an EIS provider (defined in Sec. 303.12).
Changes: We have revised Sec. 303.346 so that it refers to a
public agency and an EIS provider, rather than an agency and person.
Subpart E--Procedural Safeguards
General
Confidentiality and Opportunity To Examine Records (Sec. 303.401)
Comment: A few commenters recommended retaining as much of current
Sec. 303.402, concerning the opportunity to examine records, and Sec.
303.460, concerning confidentiality of information, as is consistent
with the Act.
Discussion: The confidentiality rights and protections contained in
current Sec. Sec. 303.402 and 303.460 have been retained in Sec.
303.401(b) and have been explicitly referenced in both Sec. Sec.
303.401(b) and 303.402 of these regulations, consistent with sections
617(c), 639(a)(2), and 642 of the Act. Provisions concerning parents'
rights to inspect and review their children's records in current Sec.
303.402 are incorporated in Sec. 303.401(b)(2). The substance of the
note following current Sec. 303.460, which concerns the applicable
confidentiality rights and protections afforded under sections 617(c)
and 642 of the Act, is now in Sec. Sec. 303.401(b) and 303.402.
We have added language in Sec. 303.401(b) clarifying that, as
required under sections 617(c) and 642 of the Act, the regulations in
Sec. Sec. 303.401 through 303.417 ensure the protection of the
confidentiality of any personally identifiable data, information, and
records collected or maintained pursuant to this part by the Secretary
and by participating agencies, including the State lead agency and EIS
providers, in accordance with the Family Educational Rights and Privacy
Act (FERPA) in 20 U.S.C. 1232g and 34 CFR part 99.
Changes: We have deleted in Sec. 303.401(b) the parenthetical
``(which contain confidentiality provisions under FERPA in 20 U.S.C.
1232g and its regulations in 34 CFR part 99)'' and added in Sec. Sec.
303.401(b) and 303.402 language regarding the implementation of the
regulations in Sec. Sec. 303.401 through 303.417 under sections 617(c)
and 642 of the Act to ensure the protection of the confidentiality of
any personally identifiable data, information, and records collected or
maintained pursuant to this part, in accordance with FERPA in 20 U.S.C.
1232g and 34 CFR part 99.
Comment: A few commenters recommended that the rights and
protections afforded to parents concerning confidentiality and access
to records be extended to foster families and agencies responsible for
infants and toddlers who reside in out-of-home care.
Discussion: The confidentiality rights and protections in
Sec. Sec. 303.401 through 303.417 are available to an individual who
meets the definition of a parent in Sec. 303.27, which expressly
includes foster parents, and any individual appointed as a surrogate
parent under Sec. 303.422. However, Sec. 303.422(d)(2) excludes from
serving as a surrogate parent for a child, an employee of the lead
agency or any other public agency or EIS provider that provides any
services to the child or a family member of that child. Thus, the
confidentiality rights and protections available to parents under
Sec. Sec. 303.401 through 303.417 would not be available to agencies
responsible for the care of infants and toddlers not residing at home
or to the employees of such agencies.
Changes: None.
Comment: One commenter requested that we clarify the word
``broader'' as used in proposed Sec. 303.401(b)(1), regarding
confidentiality procedures.
Discussion: Proposed Sec. 303.401(b)(1) stated that the part C
confidentiality
[[Page 60208]]
procedures are consistent with, but broader than, those under FERPA. In
some instances the part C confidentiality procedures differ from the
requirements under FERPA (for example, part C uses the term
``participating agency'' and permits States to adopt an opt-out policy
in Sec. 303.401(e)). We agree that the phrase ``that are consistent
with, but broader than those under'' is not clear; therefore, we have
removed the phrase. Additionally, we have removed the last phrase of
the parenthetical ``and include additional part C requirements''
because it is redundant.
Changes: The phrase ``that are consistent with, but broader than
those under'' and the last phrase of the parenthetical ``and include
additional part C requirements'' have been removed.
Comment: One commenter requested that the Department clarify
whether it violates part C confidentiality regulations to accept a
referral without parental consent.
Discussion: Section 303.401(c)(2) provides that the part C
confidentiality procedures apply from the point in time when the child
is referred for early intervention services, and thus, do not apply
prior to a referral. Under Sec. 303.401(c)(2), the confidentiality
provisions under part C of the Act do not apply to primary referral
sources. Thus, part C does not prohibit the lead agency or an EIS
provider from accepting a referral of a child to the State part C
system from a primary referral source. However, the primary referral
source may be required to obtain parental consent prior to making a
referral under other applicable laws (such as HIPAA, CAPTA, or State
laws).
Changes: None.
Comment: None.
Discussion: Given that we reference ``participating agencies'' in
Sec. Sec. 303.405 through 303.417, we have changed the reference in
Sec. 303.401(c)(2) from ``lead agency and EIS provider'' to
``participating agency.'' We also have clarified that the
confidentiality procedures apply until the later of when the
participating agency is no longer required to maintain or no longer
maintains, under applicable Federal and State laws, the personally
identifiable information of a child and the child's family that is
contained in early intervention records collected, used, or maintained
under this part by the lead agency.
Changes: We have replaced the phrase ``lead agency or EIS
provider'' with the phrase ``participating agency'' in Sec.
303.401(c)(2). We also have replaced the phrase ``required to maintain
or maintains'' with the phrase ``required to maintain or no longer
maintains'' in Sec. 303.401(c)(2).
Disclosure of Information (Sec. 303.401(d))
Comment: One commenter stated that it is unnecessary for the lead
agency to disclose the information identified in Sec. 303.401(d) to
the LEA where the child resides or to the SEA and that such disclosure
may potentially breach the right to confidentiality of personally
identifiable information.
Discussion: Section 637(a)(9)(A)(ii)(I) of the Act, concerning
preschool transition, requires the lead agency to notify the LEA where
the toddler resides that the toddler will shortly reach the age of
eligibility for preschool services under part B of the Act. We believe
that notifying the LEA where the child resides and the SEA of the
toddler's name, date of birth, and the parent contact information
(including parents' names, addresses, and telephone numbers) is
necessary to implement the requirements in section 637(a)(9)(A)(ii)(I)
of the Act and to ensure that children exiting part C services
experience a smooth and seamless transition to part B services.
Changes: None.
Comment: One commenter stated that the terms ``State Lead Agency
(SLA)'' and ``Local Lead Agency (LLA)'' should be used in the
regulations instead of the terms ``SEA'' and ``LEA'' because SEAs and
LEAs are only two of the many types of lead agencies. The commenter
also stated that using the terms ``SEA'' and ``LEA'' in the part C
regulations is confusing.
Discussion: Part C of the Act uses the term ``lead agency'' to
refer to the State agency designated by the State's Governor under
section 635(a)(10) of the Act to administer the Federal part C funds
the State receives under section 643 of the Act and to be responsible
for implementing the statewide early intervention system. We recognize
that while a few States have part C statewide systems that refer to EIS
providers as ``local lead agencies'' this is not the general practice
among most States. Additionally, many EIS providers are not public
agencies and, therefore, we decline to revise these regulations to
include that term and have continued to use the term ``EIS provider''
when referring to entities other than the lead agency who are
responsible for assisting the State in implementing the part C
statewide early intervention system.
Regarding use of the terms participating agency, LEA, and SEA in
these regulations, these terms are defined in Sec. Sec. 303.404(c),
303.23, and 303.36, respectively, and are terms used throughout these
regulations and specifically in Sec. 303.401(b) through (d)(1). Thus,
we decline to make the change requested by the commenter.
Changes: None.
Comment: Several commenters supported Sec. 303.401(e) while many
other commenters opposed it stating that it diminishes a family's right
to confidentiality and decision-making about their child. These
commenters urged the Department to require a lead agency to obtain
parental consent prior to disclosing to an LEA or SEA the information
identified in Sec. 303.401(d)(1) as it is personally identifiable
information. Similarly, one commenter requested that the opt-out
requirement in Sec. 303.401(e) be changed to an ``opt-in'' policy.
Discussion: Section 303.401(e) permits a lead agency to adopt an
opt-out policy under section 637(a)(9) of the Act and Sec.
303.209(b)(1)(ii). An opt-out policy requires the lead agency and EIS
providers, prior to disclosing the limited information identified in
Sec. 303.401(d)(1) to the LEA where the child resides or to the SEA,
to inform the child's parent about the impending disclosure and provide
the parent with a specific time period in which the parent may confirm
his or her decision to decline, or opt-out of, the disclosure of such
information about his or her child.
Permitting States to adopt an opt-out policy, rather than opt-in
policy, which would require the lead agency to obtain affirmative
parental consent before disclosure of the limited information
identified in Sec. 303.401(d)(1) to the LEA or SEA, allows States the
flexibility to balance the privacy interests of parents of children
receiving part C services and the lead agency's, SEA's, and LEA's
respective responsibilities to identify children potentially eligible
for services under part B of the Act, and to ensure a smooth transition
from the State's part C program to its part B program. Parents, as well
as other stakeholders and members of the public have an opportunity to
provide input when the State circulates its LEA notification policies
for public participation as required in Sec. 303.208(b).
Changes: None.
Definitions (Sec. 303.403)
Comment: Two commenters requested that the term education records
be changed to the term early intervention records because use of the
term ``education'' is not consistent with part C of the Act and could
be interpreted incorrectly by insurance companies and Medicaid
concerning payment for services. One commenter also expressed concern
that the term education records
[[Page 60209]]
is used inconsistently throughout the regulations (see Sec. Sec.
303.405(a) and (b), 303.406, 303.407, 303.408, 303.410, and 303.411).
Discussion: We agree that the term early intervention records
should replace the term education records in Sec. 303.403 and have
revised references to education records to read early intervention
records in these regulations.
Changes: We have revised Sec. 303.403(b) to define early
intervention records instead of education records and clarified that
the term includes all records regarding a child that are required to be
collected, maintained, or used under part C of the Act and the
regulations in this part.
Comment: One commenter expressed concerns that the definitions in
Sec. 303.403, while applicable to programs under part B of the Act,
may not be appropriate for programs under part C of the Act.
Discussion: We agree that the definitions of education records and
participating agency in Sec. 303.403 could be amended to more
appropriately apply to part C of the Act. As noted previously, we have
removed the term education records in Sec. 303.403(b) and replaced it
with the term early intervention records.
Additionally, we have amended the definition of participating
agency in Sec. 303.403(c) to mean any individual, agency, entity, or
institution that collects, maintains, or uses personally identifiable
information to implement the requirements in part C of the Act and the
regulations in this part with respect to a particular child.
Participating agency specifically includes the lead agency and EIS
providers that provide any part C services, including service
coordination, evaluations and assessments, and other part C services.
We are adding this provision to distinguish between those primary
referral sources that perform primarily a child find function and those
entities that serve as funding sources only. We have clarified that
this term does not include primary referral sources (unless they are
also EIS providers), or public agencies (such as the State Medicaid or
CHIP program), or private entities (such as private insurance
companies) that act solely as funding sources for part C services.
Changes: We have revised the definition of participating agency in
Sec. 303.403(c) to provide that this term also includes an entity that
collects, maintains, or uses personally identifiable information and
that this information is collected, maintained, or used ``to implement
the requirements in part C of the Act and the regulations in this
part.'' We have added a provision that an EIS provider includes a
provider of part C services, including service coordination,
evaluations, and assessments, and other part C services. Additionally,
we have added a provision specifically stating that primary referral
sources, or public agencies (such as the State Medicaid or CHIP
program) or private entities (such as private insurance companies) that
act solely as funding sources for part C services are not considered a
participating agency.
Notice to Parents (Sec. 303.404)
Comment: Some commenters requested that the confidentiality
requirements in these regulations reflect the parallel requirements in
the part B regulations, where appropriate. One commenter requested
clarification as to when the general notice and confidentiality
requirements under part C of the Act apply. One commenter recommended
adding a requirement that the notice to parents in Sec. 303.404 be
provided in the native language of the parent.
Discussion: We agree that it would be helpful for lead agencies
under part C of the Act to know when the general notice requirement
applies. Requiring the lead agency to provide parents with notice of
its general confidentiality policies and procedures, including document
retention and destruction procedures, when a child is referred under
part C of the Act ensures that parents are aware of the nature and
scope of their rights under these policies and procedures. States may
choose to provide this general notice at additional appropriate times,
such as annual IFSP meetings, but we have not required that it be
provided at each such meeting because of the burden this would place on
the State and because the prior written notice requirements in Sec.
303.421 already require a summary of each of the procedural safeguards.
Additionally, the content of the notice should include a
description of the extent that the notice is available in the native
languages of the various population groups in a State. We have added
language to Sec. 303.404 that reflects that requirement, which is also
in 34 CFR 300.612 of the part B regulations. The prior written notice
and procedural safeguards notice requirements in Sec.
303.421(c)(1)(ii) require that the child-specific notice be in the
parent's native language or other mode of communication used by the
parent, unless it is clearly not feasible to do so, and that the notice
include a description of the procedural safeguards, including
confidentiality requirements under subpart C of this part.
Changes: We have added the phrase ``when a child is referred under
part C of the Act'' in the introductory text in Sec. 303.404. We also
have added a new paragraph (d) to Sec. 303.404 requiring that the
notice to parents include a description of the extent that the notice
is given in the native languages of the various population groups in
the State.
Comment: A few commenters recommended revising Sec. 303.404(a) to
require the notice to parents, concerning the confidentiality
provisions under the Act, to be more applicable to part C of the Act.
Discussion: Section 303.404(a) provides that the notice include 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
which the information is gathered), and the uses to be made of the
information. For example, children on whom personally identifiable
information is maintained include children with developmental delays or
diagnosed conditions, or, if applicable, children at risk for
developmental delays. The types of information sought include
developmental, medical, educational, and other information. The
specific sources from which information is gathered would include
primary referral sources in the State, and the uses to be made of the
information would include the identification, evaluation, and provision
of early intervention services to infants and toddlers with
disabilities. Thus, Sec. 303.404(a) sufficiently relates to the
personally identifiable information maintained, collected, and used
under part C of the Act.
Changes: None.
Access Rights (Sec. 303.405)
Comment: Commenters from several lead agencies recommended
requiring lead agencies to respond to parents' requests to inspect and
review their child's early intervention records within 10 calendar days
of the request, instead of 20 days, because it is important for parents
to have these records available in the event there is a pending due
process hearing (that must be resolved within a 30-day timeline as
required in Sec. 303.430(d)(1)).
Discussion: We agree that a 10-day deadline would be more
appropriate to ensure access to early intervention records when parents
have filed a request for a due process hearing. We have changed the
timeline for agency compliance with a parent's request to
[[Page 60210]]
inspect and review records to 10 calendar days after the parent makes
the request. (The term day is defined as ``calendar day unless
otherwise indicated'' in Sec. 303.9.)
Changes: We have changed Sec. 303.405(a) to reflect that an agency
must comply with a parent's request to inspect and review records in no
case more than 10 days after the request has been made.
Comment: One commenter recommended that the ``shall presume''
language in Sec. 303.405(c) be revised to align with the analogous
part B requirement in 34 CFR 300.613(c), which provides that an agency
``may presume'' that a parent has the authority to inspect and review
his or her child's records.
Discussion: We agree with the commenter and have changed Sec.
303.405(c) to be consistent with 34 CFR 300.613(c) in the part B
regulations.
Changes: The word ``shall'' has been removed and replaced with the
word ``may'' in Sec. 303.405(c).
Fees for Records (Sec. 303.409)
Comment: One commenter recommended including in Sec. 303.409 a
provision to allow parents to receive a copy of their child's records
upon request, thereby facilitating the role of parents as full and
equal participants in the IFSP process. Another commenter expressed
concern about the length of time that may lapse between a child's IFSP
meeting and the time that the parent actually receives a copy of the
child's IFSP. This commenter requested that the regulations require
that the parent be given a copy of his or her child's IFSP at the
conclusion of every IFSP meeting.
Discussion: We agree with commenters that in order to help parents
to be full and equal participants in the IFSP process parents must
receive a copy of their child's evaluation, assessments, and IFSP.
Thus, we have added in new Sec. 303.409(c) that each evaluation,
assessment, and IFSP must be provided to the parent.
Additionally, under Sec. 303.521(b), the lead agency must ensure
that specific activities, including conducting evaluations and
assessments, developing and reviewing IFSPs, and implementing
procedural safeguards, are provided at no cost to parents. Thus, we
have added in new Sec. 303.409(c) the requirement that these records
be provided to parents at no cost. Requiring States to provide a copy
of evaluations, assessments, and IFSPs to parents, from the child's
early intervention record, should not be a burden to States. As a
standard practice, most States already provide these documents at no
cost to parents. The requirement in new Sec. 303.409(c) is comparable
to the evaluation and IEP documents that must be provided to parents at
no cost under the provisions in 34 CFR 300.306(a)(2) and 300.322(f) of
the part B regulations.
Concerning the request that the IFSP be provided at the conclusion
of the IFSP meeting, we decline to add this specific timeline but agree
that it is important to specify when these documents must be provided.
Thus, we also have added in new Sec. 303.409(c) that a copy of each
evaluation, assessment of the child, family assessment, and IFSP must
be provided to the parent as soon as possible after each IFSP meeting.
Changes: We have added new Sec. 303.409(c), which requires that a
participating agency must provide at no cost to the parent, a copy of
each evaluation and assessment of the child, family assessment, and
IFSP as soon as possible after each IFSP meeting. We also have revised
the heading of Sec. 303.409 to add ``for records'' after ``Fees'', and
added a clause to Sec. 303.409(a) explaining that the right to charge
fees does not apply to documents that must be provided and are
mentioned in Sec. 303.409(c).
Amendment of Early Intervention Records Under Sec. Sec. 303.410,
303.411, and 303.412
Comment: One commenter recommended adding references to the family,
in addition to the child, in Sec. Sec. 303.410 and 303.412(a),
regarding a parent's right to amend information in a child's early
intervention record if it is inaccurate, misleading, or violates the
privacy or other rights of the child.
Discussion: We agree that the protections in Sec. Sec. 303.410(a)
and 303.412(a) and (b) should apply to information about the parent as
well as the child, but do not agree that the right to amend a record
extends to information about other family members. This is because the
definition of personally identifiable information in Sec. 303.29(d)
includes a list of personal characteristics or other information that
would make the child's or parent's identity easily traceable.
Therefore, we have added the reference to the parent, but not to the
family. For the same reasons, we have added this reference to the
parent in Sec. 303.411.
Changes: We have added a reference to the parent in Sec. Sec.
303.410(a), 303.411, and 303.412(a) and (b).
Opportunity for a Hearing (Sec. 303.411)
Comment: A few commenters stated that the requirements in Sec.
303.411 are inconsistent with both the hearing procedures in Sec.
303.413 and the relevant part B requirements in 34 CFR 300.619, which
require a hearing to challenge information in a child's record to be
conducted in accordance with the procedures under FERPA.
Discussion: We have clarified Sec. 303.411 by providing that the
parent may request a due process hearing if a State has adopted the
part C due process hearing procedures that are referenced in Sec.
303.430(d)(1), provided that such procedures meet the requirements of
the hearing procedures in Sec. 303.413 that comply with the FERPA
regulations in 34 CFR 99.22. Thus, as suggested by the commenter, the
procedural options available to parents would be consistent with 34 CFR
300.619 of the part B regulations. We believe permitting this option to
parents provides parents with the benefits of the 30-day timeline if
the State has adopted part C due process hearings under Sec.
303.430(d) without imposing an additional burden on States that already
have such procedures in place.
Changes: We have added to Sec. 303.411 a reference to Sec.
303.413 and a parenthetical regarding the hearing requirements under
the FERPA regulations in 34 CFR 99.22.
Consent Prior to Disclosure or Use (Sec. 303.414)
Comment: A few commenters recommended retaining as much of current
Sec. 303.460, regarding confidentiality of information, as is
consistent with the Act.
Discussion: Current Sec. 303.460 references the confidentiality
provisions in the part B regulations that were in effect prior to the
publication of the amended part B regulations published in August 14,
2006; the Note following current Sec. 303.460 indicates that because
the part B regulations incorporate the FERPA regulations, FERPA also
applies to the part C regulations. Consistent with the commenters'
requests, we have removed the general citation to the part B
regulations and FERPA and added in Sec. 303.414(b)(2) the exceptions
to the FERPA consent requirement in 34 CFR 99.31(a) as specific
exceptions (where applicable to part C) to the parental consent
requirement in these part C regulations. We have also added a provision
requiring compliance with the additional pertinent conditions in 34 CFR
99.32 through 99.39.
Changes: We have incorporated as specific exceptions to the
parental consent requirement in Sec. 303.414(b)(2) of these part C
regulations the specific exceptions to the written parental consent
requirement in 34 CFR 99.31(a)
[[Page 60211]]
of the FERPA regulations (where applicable to part C), reference to the
pertinent conditions in 34 CFR 99.32 through 99.39, and added
appropriate modification provisions in Sec. 303.414(b)(2)(i) through
(b)(2)(vii).
Comment: One commenter expressed concern that sometimes service
providers do not disclose information that parents have given consent
to disclose, and suggested that service providers should be required to
disclose documents or information when parents have consented to the
disclosure.
Discussion: It is unclear what types of documents or information
the commenter is referencing or the circumstances under which an EIS
provider might not disclose the information for which a parent has
given consent. However, there may be circumstances when the lead agency
or an EIS provider may not have the authority to provide documents in
the child's early intervention record to a third party, even after
receiving parental consent for disclosure of personally identifiable
information. For example, a lead agency or EIS provider may not have
the authority to disclose third-party medical records. In these cases,
the lead agency or EIS provider would instruct the parent to make such
a request to the third party for the document or information.
Changes: None.
Comment: A few commenters recommended that the regulations clarify
the exception that applies to Protection and Advocacy (P&A) agencies
seeking access to information pursuant to their authority under the
Protection and Advocacy for Individuals with Mental Illness Act (42
U.S.C. 10801, et seq.). Other commenters opposed disclosing information
to P&A agencies and questioned why only this requirement is included in
these regulations when other statutory authorities also may apply to
part C records and why this provision is not in the part B regulations.
One commenter stated that this requirement conflicts with the FERPA and
HIPAA confidentiality provisions.
Discussion: We agree with the commenters that it would not be
appropriate to include language in the part C regulations concerning
the issue of limited disclosures of personally identifiable information
in early intervention records that may be sought by P&A agencies and
have removed Sec. 303.414(d).
As the commenters stated, there are a number of statutory
authorities that may apply to part C records. Given the variety of
factual circumstances to be considered--including the uncertainty as to
what personally identifiable information will be sought about infants
and toddlers with disabilities and the varying context and purposes
under which the information may be sought-- regulating could not
address the specific circumstances in each particular case.
Changes: We have removed Sec. 303.414(d).
Comment: A commenter requested that the Department define in Sec.
303.414 the term participating agency.
Discussion: The term participating agency as used in Sec. 303.414
is defined in Sec. 303.403(c).
Changes: None.
Safeguards (Sec. 303.415)
Comment: One commenter agreed with the provisions in Sec.
303.415(a) (regarding the protection of personally identifiable
information at the collection, maintenance, use, storage, disclosure,
and destruction stages), (b) (requiring an official to be responsible
for ensuring the confidentiality of personally identifiable
information), and (c) (training for persons collecting and using
personally identifiable information), but suggested that the
requirements in these paragraphs may be inconsistent with Sec.
303.415(d).
Discussion: Section 303.415(d) requires that each participating
agency maintain a current listing of the names and positions of agency
employees who may have access to personally identifiable information
and reflects current, long-standing Department policy and regulations.
Paragraphs (a) through (c) of this section are consistent with
paragraph (d) because paragraph (d) applies to the individuals listed
in paragraph (c) of this section. Paragraph (d) of this section further
safeguards the confidentiality of these records by preventing access to
the records by those individuals not listed.
Changes: None.
Comment: One commenter suggested that Sec. 303.415(d) is
unnecessary because records are generally maintained electronically in
order to be consistent with the FERPA and HIPAA requirements.
Discussion: This requirement is necessary because the public has a
right to know who may have access to personally identifiable
information about their child and family. The method a participating
agency uses to implement the provisions in Sec. 303.415(d) is best
left to the participating agency to determine. The 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, regardless of whether such
information is maintained electronically or as a written record.
Changes: None.
Destruction of Information (Sec. 303.416)
Comment: None.
Discussion: For consistency within the confidentiality regulations
that apply to participating agencies in Sec. Sec. 303.402 through
303.417, we have replaced the reference to ``public agency'' in Sec.
303.416(a) with the term ``participating agency.''
Changes: We have replaced the reference to ``public agency'' with
``participating agency'' in Sec. 303.416(a).
Comment: A few commenters expressed concern that we have included
statutory references to GEPA in Sec. 303.416(a), but these references
are not included in the corresponding part B provisions in 34 CFR
300.624. The commenters requested that for consistency these citations
be removed from Sec. 303.416(a) or be added to the regulations under
part B of the Act.
Discussion: SEAs are aware of the applicability of GEPA to the part
B program. Therefore, it is not necessary to add these references to
the part B regulations. However, there may be lead agencies that are
unaware of the applicability of GEPA to the part C program;
accordingly, it is important that Sec. 303.416(a) identify the
specific citations to those GEPA and EDGAR provisions concerning the
maintenance, use, disclosure, and destruction of records. Thus, we have
revised the citation to GEPA provisions to refer to 20 U.S.C. 1232f,
which contains fiscal recordkeeping requirements. Lead agencies that
are not SEAs may be similarly unfamiliar with the provisions in parts
76 and 80 of EDGAR that apply to the early intervention records,
including, for example, the recordkeeping requirements in 34 CFR
80.42(b).
Changes: We have revised the citation to GEPA provisions in Sec.
303.416 to refer to 20 U.S.C. 1232f.
Enforcement (Sec. 303.417)
Comment: One commenter recommended revising the language in Sec.
303.417 because the proposed phrasing was awkward.
Discussion: We agree that Sec. 303.417 should be clarified. We
have amended Sec. 303.417 to clarify that the enforcement policies and
procedures that a State must have in effect are consistent with
Sec. Sec. 303.401 through 303.417, and include sanctions and the right
to file a State complaint under Sec. Sec. 303.432 through 303.434.
[[Page 60212]]
Changes: We have amended Sec. 303.417 to indicate that the lead
agency must have in effect the policies and procedures, including
sanctions and the right to file a complaint under Sec. Sec. 303.432
through 303.434, that a State uses to ensure that its policies and
procedures, consistent with Sec. Sec. 303.401 through 303.417, are
followed and that the requirements of the Act and the regulations in
this part are met.
Parental Consent and Ability To Decline Services (Sec. 303.420)
Comment: Some commenters requested that the Office of Special
Education and Rehabilitative Services (OSERS) provide clarification
regarding parental consent for the assessments used to report on child
outcomes in the SPP/APR. One commenter requested that the OSERS
September 2006 (revised October 2007) frequently asked questions (FAQ)
document located at http://www.rrfcnetwork.org/content/view/409/47/#cfiscal be used as a reference point for clarification regarding
parental consent for the assessments used to report child outcomes.
Discussion: If the lead agency collects, uses, or maintains
information about an eligible child to meet the SPP/APR reporting
requirements of the Department under part C of the Act, including the
required reporting on child outcomes (which information is reported
based on aggregate numbers of children, and not by individual child),
generally, the information is not personally identifiable provided that
the State has addressed any confidentiality constraints as a result of
small data cells and, thus, prior written parental consent would not be
required. However, as noted in the FAQ document referenced by the
commenter, prior written parental consent is required under Sec.
303.420 if the collection of outcome information is a part of the lead
agency's evaluation to determine initial or continuing eligibility of a
child in the part C program. In this circumstance, States must provide
prior written notice to the parents under Sec. 303.421 and, if
applicable, obtain parental consent for evaluation as required in Sec.
303.420.
Changes: None.
Comment: One commenter stated that requiring parental consent in
Sec. 303.420 to administer screening procedures in Sec. 303.320 may
dissuade some parents from allowing a developmental screening to be
conducted.
Discussion: It is important for parents to be able to determine
whether their child should receive a developmental screening. We have
added in Sec. 303.420(a)(1), regarding parental consent for screening,
a reference to the screening provisions in Sec. 303.320.
Changes: We added, in Sec. 303.420(a)(1), a reference to Sec.
303.320.
Comment: A few commenters requested that the word ``initial'' in
current Sec. 303.404 be reinserted into Sec. 303.420(a)(2) before the
words ``evaluation and assessment.''
Discussion: Consistent with section 639(a)(3) of the Act and the
current policies and practice in the vast majority of States, the
Department's position is that parental consent is required for all
evaluations, including an initial evaluation and assessment of a child
and all subsequent evaluations and assessments of a child. To clarify
this point, we have amended the regulations to indicate that the
consent provisions in Sec. 303.420(a)(2) apply to all evaluations and
assessments of a child.
Changes: We have added the word ``all'' to Sec. 303.420(a)(2).
Comment: None.
Discussion: The Department received a large number of comments on
proposed Sec. 303.420(a)(4) as it relates to the lead agency obtaining
parental consent prior to accessing public benefits or insurance. We
have addressed those comments in the Analysis of Comments and Changes
for subpart F of this part.
Changes: We have revised Sec. 303.420(a)(4) to clarify that the
lead agency must ensure that parental consent is obtained before public
benefits or insurance or private insurance is used if such consent is
required under Sec. 303.520.
Comment: One commenter recommended that Sec. 303.420, regarding
parental consent and declining services, be amended to specifically
reflect the language in part C of the Act. The commenter stated that
there are inherent differences between part C and part B of the Act and
that the part B requirements in 34 CFR 300.300(a)(3)(i) should not be
adopted without revision. Specifically, the commenter pointed out that
Sec. 303.420(c)(1), which permits a lead agency to use the due process
hearing procedures to challenge a parent's refusal to consent to an
initial evaluation and assessments of a child for early intervention
services, should not apply to part C because participation in early
intervention services is voluntary. The commenter recommended removing
this paragraph.
Discussion: We agree with the commenter that the participation of
infants and toddlers with disabilities and their families in the part C
program is voluntary and a parent may refuse an initial evaluation or
assessment without the lead agency being able to use the due process
hearing procedures under this part or under the regulations under part
B of the Act to challenge the parent's refusal.
Additionally, because the lead agency may not use due process
hearing procedures to challenge a parent's refusal to provide consent
required under this part, we have added in new Sec. 303.420(c) that
such due process hearing procedures may not be used to challenge the
parent's refusal to provide any consent that is required under
paragraph (a) of this section. Therefore, we have amended Sec.
303.420(c) accordingly.
Changes: We have amended Sec. 303.420(c) to indicate that a lead
agency may not use the due process hearing procedures under this part
or part B of the Act to challenge a parent's refusal to provide any
consent that is required under paragraph (a) of this section.
Comment: None.
Discussion: For consistency with Sec. 303.414 and internal
consistency within Sec. 303.420, we refer to the confidentiality
exceptions in Sec. 303.414 instead of referring to the exchange of
personally identifiable information in Sec. 303.401.
Changes: We have revised Sec. 303.420(a)(5) to read ``Disclosure
of personally identifiable information consistent with Sec. 303.414.''
Prior Written Notice and Procedural Safeguards Notice (Sec. 303.421)
Comment: A few commenters objected to the phrase ``reasonable
time'' in Sec. 303.421, which requires that prior written notice be
given to parents a reasonable time before the lead agency under part C
of the Act or an EIS provider proposes, or refuses, to take certain
actions concerning their child. One commenter requested that
``reasonable time'' be replaced with a specific timeframe, for example,
five days.
Discussion: Quantifying the phrase ``reasonable time'' in Sec.
303.421(a) would be inappropriate because what constitutes a reasonable
time may vary based on the individual circumstances of each case.
However, we would expect a lead agency to provide notice under Sec.
303.421 within a timeframe that allows the parent time to respond to
the notice before the lead agency takes, or refuses to take, the
actions listed in Sec. 303.421(a).
Changes: None.
Comment: One commenter recommended adding language to Sec.
303.421(c) to require that the prior written notice and procedural
safeguards notice be provided in braille
[[Page 60213]]
to individuals who are blind or visually impaired.
Discussion: The commenter's concerns are addressed in Sec.
303.421(c)(1)(ii), which requires that the notice be provided in the
native language of the parent as the term native language is defined in
Sec. 303.25. Section 303.25(b) requires that for an individual who is
blind or visually impaired the term native language means the mode of
communication that is normally used by the individual (such as sign
language, braille, or oral communication). Therefore, we decline to
revise the regulation as requested by the commenter.
Changes: None.
Surrogate Parents (Sec. 303.422)
Comment: A few commenters recommended amending the language in
Sec. 303.422, concerning surrogate parents, to align the language with
the parallel provisions in 34 CFR 300.519 of the part B regulations.
Discussion: Section 303.422, concerning surrogate parents, is
primarily aligned with the requirements in sections 639(a)(5) of the
Act and reflects many of the parallel provisions regarding surrogate
parents in section 615(b)(2) of the Act and 34 CFR 300.519 of the part
B regulations. Section 303.422 does not include the language from 34
CFR 300.519(a)(4) and (f) of the part B regulations because these
provisions are not applicable to the part C program. Specifically, the
language in the part B regulations references an unaccompanied homeless
youth under the McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a(6)). The language from 34 CFR 300.519(c) of the part B
regulations, although slightly modified for clarity, is applicable to
the part C program. We have amended Sec. 303.422 to add a new
paragraph (c) to state that ``in the case of a child who is a ward of
the State, the surrogate parent, instead of being appointed by the lead
agency under paragraph (b)(1) of this section, may be appointed by the
judge overseeing the infant or toddler's case provided that the
surrogate parent meets the requirements in paragraphs (d)(2)(i) and (e)
of this section.''
Changes: We have added new paragraph (c) and renumbered the
subsequent paragraphs accordingly.
Comment: A few commenters requested that the Department clarify the
phrase ``cannot locate a parent'' in Sec. 303.422(a)(2), which
requires each lead agency or other public agency to ensure that the
rights of a child are protected when no parent can be located. One
commenter pointed out that the language in Sec. 303.422(a)(2) is
different from the language in current Sec. 303.406(a)(2), which
states that each lead agency must ensure that the rights of a child are
protected when the public agency cannot discover the whereabouts of a
parent. The commenter asked whether there is a distinction between the
current requirements and those in Sec. 303.422(a)(2) and whether the
Department is changing its position.
Discussion: Section 303.422(a)(2) is substantively unchanged from
current Sec. 303.406(a)(2). Although we used the simpler term ``locate
a parent'' in place of the term ``discover the whereabouts of a
parent,'' we have not changed the meaning of the regulations, and the
regulations continue to require that the lead agency make reasonable
efforts to discover the whereabouts of a parent before assigning a
surrogate parent, consistent with sections 615(b)(2)(A) and 639(a)(5)
of the Act.
Changes: None.
Comment: A few commenters recommended expanding the requirement in
Sec. 303.422(b)(2) to require that for children who are wards of the
State or placed in foster care, a lead agency must consult with all
individuals involved with the care of the child, including but not
limited to, the child's care giver, appointed guardian, social worker,
and attorney, when appointing a surrogate parent. The commenters stated
this would ensure a fully informed decision when appointing a surrogate
parent for children who are wards of the State or placed in foster
care.
Discussion: Section 303.422(b)(2) requires the lead agency, when
determining whether and who to appoint as a surrogate parent for
children who are wards of the State or placed in foster care, to
consult with the public agency with whom care of the child has been
assigned. The individuals involved in implementing the provisions in
Sec. 303.422 for children who are wards of the State or placed in
foster care will vary on a case-by-case basis. The regulations as
written provide the flexibility necessary for a lead agency and the
public agency, as part of the consultation process in Sec. 303.422, to
decide who should be involved in implementing the requirements of this
section.
Changes: None.
Comment: One commenter stated that a lead agency should not consult
with a child welfare agency with regard to assigning a surrogate
parent, as required in Sec. 303.422(b)(2), because the foster parent
is the parent and can make decisions.
Discussion: The surrogate parent provisions in Sec. 303.422 are
only relevant if a parent is unavailable. If a foster parent meets the
definition of parent in Sec. 303.27 there would be no need for a
surrogate parent to be assigned and the consultation provision in Sec.
303.422(b)(2) would not apply.
Changes: None.
Comment: A few commenters recommended adding language specifying
that a surrogate parent cannot be a person involved in the education or
care of the child.
Discussion: We agree that this additional language would provide
useful clarification and have amended the regulations to add language
to Sec. 303.422(d)(2)(i) clarifying that an employee of a public
agency that provides education or care to a child or any family member
of the child cannot be a surrogate parent.
Changes: We have amended Sec. 303.422(d)(2)(i) to expressly
prohibit any employee of the lead agency or any other public agency or
EIS provider that provides early intervention services, education,
care, or other services to a child or any family member of the child
from serving as a surrogate parent for that child.
Comment: One commenter recommended adding language to Sec. 303.422
to indicate that a lead agency may not remove a surrogate parent based
upon a disagreement with a surrogate parent or because a surrogate
parent refuses to consent to the provision of early intervention
services.
Discussion: The Act is silent on when or how a surrogate parent can
be removed. However, a lead agency has a responsibility to ensure that
a surrogate parent is carrying out his or her responsibilities;
therefore, there are some circumstances when removal may be
appropriate. A mere disagreement with the decisions of a surrogate
parent about appropriate services or placements for a child, however,
generally would not be sufficient to give rise to a removal, as the
role of a surrogate parent is to represent the interests of the child,
which may not be the same as the interests of the public agency. We do
not think a regulation is necessary because these circumstances may be
resolved under State law. Additionally, the rights of an infant or
toddler with a disability are adequately protected by Titles II and VI
of the ADA, which prohibit retaliation or coercion against any
individual who exercises their rights under Federal law for the purpose
of assisting children with disabilities, to protect the child's rights
under this statute.
Changes: None.
Comment: A few commenters recommended that we establish a
[[Page 60214]]
timeline, such as 30 days, for the lead agency or other public agency
to identify and assign a surrogate parent. Other commenters expressed
concern that significant delays will result in cases where a surrogate
parent must be appointed in order to provide consent.
Discussion: We agree that a timeline to assign a surrogate parent
should be included in these regulations and have changed Sec. 303.422
to require a lead agency to make reasonable efforts to ensure that a
surrogate parent is assigned not more than 30 days after the public
agency determines that a child needs a surrogate parent. Given that the
development of infants and toddlers quickly changes, identifying a
surrogate parent in a timely manner is important to a child, prevents
undue delays, and aids the effective implementation of the requirements
of this part. Additionally, a 30-day time frame to identify a surrogate
parent is consistent with 34 CFR 300.519(h) of the part B regulations
and establishes a timeframe in which a surrogate parent must be
appointed, thus preventing undue delays. We have revised Sec. 303.422
accordingly.
Changes: We have added paragraph Sec. 303.422(g) to require that
the lead agency make reasonable efforts to ensure that a surrogate
parent is assigned not more than 30 days after a public agency
determines that the child needs a surrogate parent.
State Dispute Resolution Options (Sec. 303.430)
Comment: One commenter requested that we retain Note 2 from current
Sec. 303.420, concerning the importance of establishing State
administrative procedures that result in speedy resolution of
complaints because an infant's or toddler's development is so rapid
that undue delay could be potentially harmful.
Discussion: We agree with the commenter that Note 2, following
current Sec. 303.420, is important and have included the substance of
that note in the timelines in these regulations. For States that choose
to adopt part C due process procedures, Sec. 303.437(b) requires each
lead agency to ensure that, not later than 30 days after the receipt of
a parent's due process complaint, the due process hearing is completed
and a written decision is mailed to each of the parties. For States
that choose to adopt part B due process procedures, Sec. 303.440(c)
requires the lead agency to adopt either a 30- or 45-day timeline,
subject to Sec. 303.447(a), for the resolution of due process
complaints. Additionally, the requirements for State complaint
procedures in Sec. 303.433(a), provide that, within 60 days after a
complaint is filed, the lead agency must resolve the complaint.
Therefore, it is not necessary to retain in Sec. 303.430 verbatim the
language of note 2 in current Sec. 303.420.
Changes: None.
Comment: Several commenters expressed concerns with the dispute
resolution options in Sec. 303.430. A few commenters stated that the
options do not fit into the part C program because the child's time in
the program is limited. The commenters stated that the 30-day timeline
for the resolution period and the 45-day timeline for the due process
hearing in States that choose to adopt part B due process procedures
under section 615 of the Act are too long.
Discussion: Section 303.430 requires each statewide system to
include procedures to resolve complaints through mediation, State
complaint procedures, and due process procedures. The concerns about
the timelines for the resolution period and the due process hearing in
States that choose to adopt part B due process procedures under section
615 of the Act, are more fully addressed in the Analysis of Comments
and Changes in response to the comments received on Sec. 303.440.
Changes: None.
Comment: None.
Discussion: We have revised the introductory text of Sec.
303.430(d) to remove the phrase ``in addition to adopting the
procedures in paragraphs (b) and (c) of this section'' because these
requirements do not need to be referenced in paragraph (d) and to do so
would be redundant with the requirements already cited in paragraphs
(b) and (c) of Sec. 303.430.
Changes: We have removed from Sec. 303.430(d) the phrase ``in
addition to adopting the procedures in paragraphs (b) and (c) of this
section.''
Comment: Many commenters expressed concern that the language in
proposed Sec. 303.430(e)(3) relates not to pendency, but to the
requirement in section 635(c)(2)(D) of the Act and Sec. 303.211(b)(4)
that IFSP services continue to be provided to a toddler with a
disability until a part B eligibility determination is made for that
child in a State that elects to make part C services available beyond
age three under Sec. 303.211. A few other commenters indicated that
proposed Sec. 303.430(e)(3) conflicts with sections 607(a) and (b) and
615(j) of the Act and the Third Circuit decision in Pardini v.
Allegheny Intermediate Unit, 420 F.3d 181 (3d Cir. 2005), cert. denied,
126 S.Ct. 1646 (2006). One commenter, recommended referencing part B
eligibility as well as ineligibility in proposed Sec. 303.430(e)(1).
Discussion: We agree with commenters who noted that the requirement
in proposed Sec. 303.430(e)(3) applies only to those States that elect
to offer services under Sec. 303.211 and is not a pendency provision
and, thus, we have moved the substance of proposed Sec. 303.430(e)(3)
to Sec. 303.211(b)(4). These comments and the resulting changes are
fully addressed in the Analysis of Comments and Changes for Sec.
303.211(b)(4) in subpart C of this part.
Changes: We have moved the substance in Sec. 303.430(e)(3) to
Sec. 303.211(b)(4).
Mediation (Sec. 303.431)
Comment: One commenter requested that the Department clarify the
phrase ``including matters arising prior to the filing of a due process
complaint'' as used in Sec. 303.431(a) to make clear when mediation
may be used by parties.
Discussion: We agree that Sec. 303.431(a) needs clarification
regarding when mediation is available. Section 303.431 incorporates
sections 639(a)(8) and 615(e)(1) of the Act, and requires lead agencies
to ensure that procedures are established and implemented to allow
parties to resolve disputes involving any matter under part C of the
Act through a mediation process, including matters arising prior to the
filing of a due process complaint. Thus, under Sec. 303.431 parties to
disputes may request mediation at any time to resolve any matter
arising under this part, regardless of whether a due process complaint
or a State complaint is filed. We have amended Sec. 303.431 to
expressly provide that mediation may be used ``at any time.''
Changes: We have added the phrase ``at any time'' to the end of
Sec. 303.431(a).
Comment: One commenter requested that the phrase ``parent's right
to a due process hearing'' in current Sec. 303.419(b)(1)(ii) be
maintained in Sec. 303.431(b)(1)(ii).
Discussion: We agree with the commenter; the language ``parent's
right to a due process hearing'' aligns with section 615(e)(2)(A)(ii)
of the Act and should be used in these regulations.
Changes: We have replaced the phrase ``hearing on the parent's due
process complaint'' with the phrase ``due process hearing'' in Sec.
303.431(b)(1)(ii).
Adoption of State Complaint Procedures (Sec. 303.432)
Comment: None.
Discussion: We have moved in Sec. 303.432(b)(1) the modifying
phrase ``who is the subject of the complaint'' to follow the phrase
``the infant or toddler
[[Page 60215]]
with a disability'' to clarify that it is the infant or toddler with
the disability who is the subject of the complaint.
Changes: We have moved in Sec. 303.432(b)(1) the phrase ``who is
the subject of the complaint'' to follow the phrase ``the infant or
toddler with a disability.''
Comment: A few commenters requested that Sec. 303.432 explicitly
state that monetary reimbursement and compensatory education are
potential remedies for State complaints.
Discussion: The lead agency is responsible for ensuring that all
public agencies within its jurisdiction meet the requirements of the
Act and its implementing regulations. In light of the lead agency's
general supervisory authority under sections 634 and 635 of the Act,
the lead agency should have the flexibility to determine the
appropriate remedies or corrective actions necessary to resolve a
complaint in which it has determined that a public agency has failed to
provide appropriate services to an infant or toddler with a disability,
including the award of compensatory services or monetary reimbursement.
To make this clear, we have changed Sec. 303.432(b)(1) to include
compensatory services and monetary reimbursement as examples of
corrective actions that may be appropriate to address the needs of an
infant or toddler with a disability who is the subject of a complaint
and the infant's or toddler's family.
Changes: We have added in Sec. 303.432(b)(1) the parenthetical
``(such as compensatory services or monetary reimbursement).''
Minimum State Complaint Procedures (Sec. 303.433)
Comment: One commenter requested that Sec. 303.433 be amended to
indicate that either party may request an extension of the 60-day time
limit in Sec. 303.433 when there are legitimate reasons for such a
request.
Discussion: Section 303.433 provides that each lead agency must
include in its State complaint procedures a time limit of 60 days after
a State complaint is filed to complete its review of the complaint and
issue a written decision to the complainant that addresses each
allegation in the complaint and that contains findings of fact and
conclusions and the reasons for the lead agency's final decision.
Section 303.433(b)(1) further provides that State complaint procedures
must permit an extension of the 60-day time limit only if exceptional
circumstances exist with respect to a particular complaint or the
parties to the complaint agree to extend the time in order to engage in
mediation pursuant to Sec. 303.433(a)(3)(ii).
The lead agency determines when there are exceptional circumstances
with respect to a particular complaint that would justify an extension
of the 60-day time limit in that complaint. A lead agency may extend
the 60-day time limit due to exceptional circumstances, such as a
governmentwide shutdown, if the lead agency needs additional
information under Sec. 303.433(a)(2) or (a)(3) and the relevant party
is unavailable due to hospitalization, or if a parent complainant is
unavailable due to illness and cannot provide the additional
information under Sec. 303.433(a)(2). Thus, we decline to add the
provision suggested by the commenter.
Changes: None.
Comment: One commenter stated that setting aside any part of a
State complaint as provided in Sec. 303.433(c) may not be possible
because the information that was set aside may be needed to complete
the fact finding in that complaint.
Discussion: Section 303.433(c) provides that if a State 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 a due process hearing, the State must set aside any part of the
complaint that is being addressed in the due process hearing until the
conclusion of that hearing. Although Sec. 303.433(c) requires that
matters raised in both a State complaint and a due process hearing be
resolved only through the due process hearing procedures, that does not
preclude fact finding in relation to an issue in a State complaint that
is different from the matters covered by the due process hearing, even
though the facts may be related to the subject of, or another issue in,
a due process proceeding, because Sec. 303.433(c) also provides that
any issue in the State complaint that is not a part of the due process
hearing must be resolved through the State complaint procedures.
Changes: None.
Comment: One commenter recommended that we not adopt Sec.
303.433(c)(3), which requires that the lead agency resolve a complaint
alleging that a lead agency or EIS provider failed to implement a due
process hearing. The commenter stated that this requirement could limit
a lead agency's ability to contract with a third party for State
dispute resolution services because third party contractors are often
given the authority to enforce due process hearing decisions.
Discussion: Nothing in the Act prohibits the lead agency from
contracting with a third party for State dispute resolution services
and Sec. 303.433(c)(3) would not interfere with a lead agency's
ability to enter into such contracts. We note, however, in accepting
funds under this part, the lead agency is responsible for the
administration of part C in the State and the use of part C funds under
sections 635(a)(10) and 637(a)(1) of the Act. Therefore, the lead
agency retains the responsibility for full implementation of the
requirements of this part, including the ultimate responsibility for
the implementation of State dispute resolution decisions even if the
services are being carried out by a third party under contract with the
lead agency.
Changes: None.
Comment: None.
Discussion: To be consistent within Sec. 303.433, we have added
the term ``public agency'' to Sec. 303.433(b)(1)(ii) and (c)(3).
Changes: We have added the term ``public agency'' to Sec.
303.433(b)(1)(ii) and (c)(3).
Filing a Complaint (Sec. 303.434)
Comment: Several commenters supported the requirement in Sec.
303.434(c) that a State complaint must allege a violation that occurred
not more than one year prior to the date that the complaint is
received. However, one commenter recommended retaining the requirement
in current Sec. 303.511(b)(1) providing that the one-year timeline for
filing a State complaint may be extended if the allegation that forms
the basis of the complaint is continuing or recurring.
Discussion: A one-year timeline is reasonable and will assist lead
agencies in ensuring the effective implementation of State complaint
procedures and State part C programs. Limiting a State complaint to an
allegation of a violation that occurred not more than one year prior to
the date the lead agency receives the complaint will ensure that
problems regarding a State's part C program are raised and addressed
promptly. For these reasons, we decline to revise Sec. 303.434(c) as
requested by the commenter.
Changes: None.
Comment: Several commenters expressed concern that Sec.
303.434(d), which requires the party filing the complaint to forward a
copy of the complaint to the public agency or EIS provider, breaches
parent confidentiality, may deter parents from filing complaints and,
at a minimum, creates an additional barrier to filing a State
complaint. One commenter recommended that Sec. 303.434 specify the
action that would be taken if a
[[Page 60216]]
complainant sends its State complaint only to the lead agency.
Discussion: Section 303.434(d) provides that the party filing the
State 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. Requiring the complaint to be
forwarded to the public agency or EIS provider serving the child at the
same time the party files the complaint with the lead agency enables
the public agency or EIS provider to be informed of the issues in the
State complaint in order to provide an opportunity for the voluntary
resolution of the complaint as set forth in Sec. 303.433(a)(3).
We believe that providing the public agency or EIS provider with
information about the complaint enables the parties to have the
opportunity to resolve disputes directly at the earliest possible time
and that this benefit outweighs the minimal burden placed on the
complainant. Concerning the commenters' confidentiality concerns, the
information that is provided by the complainant generally is
information that should already be available to the public agency or
EIS provider who is responsible for providing services to a particular
child. In addition, the public agency or EIS provider needs to know the
identity of the complainant and relevant allegations in the complaint
(consistent with Sec. 303.434) in order to propose a resolution of the
issues.
Regarding the commenter's request that Sec. 303.434(d) specify the
consequences for failure by the complainant to forward a copy of the
complaint to the public agency or EIS provider, we do not believe we
need to require specific consequences for complainants for two reasons.
First, parents file few State complaints under part C of the Act.
States reported an average of fewer than two State complaints received
by each lead agency in FFY 2006. Second, under Sec. 303.433(a)(3), the
lead agency must provide the public agency or EIS provider an
opportunity to respond to the complaint, thereby implicitly requiring
the lead agency to inform the public agency or EIS provider of the
relevant allegations in the complaint. Thus, we decline to regulate as
requested by the commenter.
Changes: None.
Appointment of an Impartial Due Process Hearing Officer (Sec. 303.435)
Comment: One commenter requested that Sec. 303.435 include the
relevant part B requirements in 34 CFR 300.511(c), concerning the
specific qualifications required for due process hearing officers.
Discussion: Section 303.435 addresses the qualifications for due
process hearing officers in States that choose to adopt the part C due
process procedures under section 639 of the Act. These qualifications
are substantively the same as those in 34 CFR 300.511(c) of the part B
regulations and the qualifications in Sec. 303.443(c) for States that
choose to adopt the part B due process procedures under section 615 of
the Act. While the language in Sec. 303.435 and 34 CFR 300.511(c) is
not identical, both sections require a due process hearing officer to
have specific knowledge about the Act and the proper conduct of legal
proceedings. Additionally, Sec. 303.435 and 34 CFR 300.511(c) both
require that the due process hearing officer be impartial using similar
criteria regarding personal and professional conflicts of interest and
employment status. Since there is no substantive difference between
Sec. 303.435 and 34 CFR 300.511(c), it is not necessary to amend Sec.
303.435 as requested.
Changes: None.
Comment: One commenter requested that the Department clarify Sec.
303.435(b)(2). Specifically, the commenter asked whether Sec.
303.435(b)(2) would permit an employee of a lead agency who is an
administrative law judge, to act as a hearing officer if that
employee's job is to adjudicate disputes such as presiding over due
process hearings under the Act and that employee is operating under a
system of mandates pursuant to a State executive order designed to
ensure his or her independence and impartiality.
Discussion: Section 303.435(b)(1) provides that a hearing officer
may not be an employee of the lead agency or an EIS provider involved
in the provision of early intervention services or care of the child,
and the hearing officer may not have a personal or professional
interest that would conflict with his or her objectivity in
implementing due process hearing procedures. Section 303.435(b)(2)
provides that a person who otherwise qualifies under paragraph (b)(1)
of this section is not an employee of an agency for purposes of the
prohibition in Sec. 303.435(b)(1) solely because the person is paid by
the agency to implement the due process hearing procedures. Under Sec.
303.435(b)(2), the sole fact that an administrative law judge is an
employee does not trigger the prohibition in Sec. 303.435(b)(1) if
that employee's job as an administrative law judge is to preside over
due process hearings under the Act and is operating under a system of
mandates pursuant to a State executive order designed to ensure his or
her independence and impartiality.
Changes: None.
Parental Rights in Due Process Hearing Proceedings (Sec. 303.436)
Comment: A few commenters requested that Sec. 303.436 stipulate
that parents who pursue a due process hearing are entitled to due
process hearing records, findings, and conclusions at no cost to the
parent.
Discussion: We agree that a parent involved in a due process
hearing should receive a copy of the transcription of the hearing
(i.e., a record of the hearing), the findings of fact, and the
decisions at no cost.
Changes: Section 303.436(b)(4) and (b)(5) has been changed to
specify that a parent involved in a due process hearing has the right
to receive a written or electronic verbatim transcription of the
hearing and a copy of the written findings of fact and decisions at no
cost to the parent.
Convenience of Hearings and Timelines (Sec. 303.437)
Comment: Several commenters recommended that Sec. 303.437, like 34
CFR 300.515(c) of the part B regulations, allow hearing officers to
grant specific extensions of time beyond the period set out in 34 CFR
300.515 of the part B regulations at the request of either party.
Discussion: Sections 303.435 through 303.438 are substantively
unchanged from current Sec. Sec. 303.420 through 303.423, which
prescribe a 30-day timeline for due process proceedings in States that
adopt part C due process procedures under section 639 of the Act.
However, we agree with the commenters that extensions to the 30-day
timeline in Sec. 303.437(b) may be necessary under certain
circumstances (such as, unavailability of witnesses, exceptional child
and family circumstances, and pending evaluations and assessments).
Therefore, we have added a new paragraph (c) to this section providing
that a hearing officer may grant specific extensions of time beyond the
periods set out in paragraph (b) of this section at the request of
either party.
Changes: We have added a new Sec. 303.437(c), which provides that
a hearing officer may grant specific extensions of time beyond the
period set out in paragraph (b) of this section at the request of
either party.
States That Choose To Adopt the Part B Due Process Procedures Under
Section 615 of the Act (Sec. Sec. 303.440 Through 303.447)
Comment: A few commenters recommended that the final regulations
[[Page 60217]]
clarify that the requirements in Sec. Sec. 303.440 through 303.447
apply only to States that choose to adopt the part B due process
procedures. Another commenter stated that the designated heading is
confusing and may lead States to believe that they must adopt part B
due process procedures.
Discussion: Grouping the requirements for due process procedures
under two designated headings in this subpart, ``States That Choose To
Adopt the part C Due Process Procedures under Section 639 of the Act''
and ``States That Choose to Adopt the part B Due Process Procedures
under Section 615 of the Act'' clarifies that a lead agency may elect
to adopt for the State either part C or part B procedures. The
regulations clearly specify which due process procedures apply when the
lead agency has made its choice under Sec. 303.430(d).
Changes: None.
Comment: One commenter suggested that the regulations should
encourage States to be innovative and create a due process hearing
system that is specifically designed for part C of the Act, rather than
adopt the part B due process hearing procedures. Another commenter
suggested that allowing lead agencies to adopt the part B due process
hearing procedures may not be consistent with the Act.
Discussion: We believe that providing States the option of adopting
the part B due process procedures in lieu of using the part C due
process hearing procedures is consistent with the Act. States were
provided this option under the original part C regulations promulgated
in 1989 to implement the Education of the Handicapped Act amendments of
1986 (Pub. L. 99-457), which established the early intervention program
for infants and toddlers with disabilities.
We have maintained this option in these regulations because there
are advantages and disadvantages for particular States to use the due
process procedures under part C as opposed to part B of the Act. The
vast majority of States use, and will likely continue to use, the part
C due process procedures in Sec. Sec. 303.435 through 303.438 instead
of exercising the option to use the part B due process procedures to
resolve disputes under part C of the Act. This is in part because the
part B due process procedures in Sec. Sec. 303.440 through 303.447
contain additional steps and procedures. Finally, even in the
approximately 25 percent of States that have adopted the part B due
process procedures, each State must update its State policies and
procedures to reflect the requirements in Sec. Sec. 303.440 through
303.447 and subject its updated policies and procedures to the public
participation requirements in Sec. 303.208(b).
In FFY 2006, approximately 15 States reported exercising the option
to adopt the part B due process procedures while the remaining 41
States (which include the territories and outlying areas) reported
adopting the part C due process procedures. In some of the 15 States
that reported using the part B due process procedures, the lead agency
is the SEA and administers both parts B and C of the Act. In a few
other States that reported adopting the part B due process procedures,
children receiving services under part C of the Act are also entitled
to receive, under State law, FAPE, and thus, these States must provide
parents with procedural protections under both parts B and C of the
Act.
For these reasons, we will continue to allow States the option to
adopt the due process procedures (with applicable public and
stakeholder input) that are most appropriate for that State.
Changes: None.
Filing a Due Process Complaint (Sec. 303.440)
Comment: One commenter requested that the Department clarify the
phrase ``or should have known'' as used in Sec. 303.440(a)(2),
regarding an alleged violation that forms the basis of a due process
complaint.
Discussion: As provided in Sec. 303.440(a)(2), in States that
choose to adopt the part B due process procedures under section 615 of
the Act, a due process complaint must allege a violation that occurred
not more than two years before the date the parent 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 filing a due process complaint, in the time allowed
by that State law. Whether a parent or public agency ``should have
known'' about the action cited as the basis of the complaint is a
determination that a due process hearing officer must make based on the
individual facts of each case. Thus, further clarification of the term
is not necessary or appropriate.
Changes: None.
Comment: One commenter expressed concern that Sec. 303.440(c)
allows States to choose either a 30- or 45-day timeline to resolve a
due process complaint. The commenter stated that 30 days is sufficient
and should be mandated, particularly given the short amount of time
that infants and toddlers are eligible for part C services.
Discussion: The option in Sec. 303.440(c) that allows lead
agencies to adopt either a 30- or 45-day timeline to resolve a due
process complaint is specific to States that choose to adopt part B due
process procedures under section 615 of the Act. The part B regulations
in 34 CFR 300.515(a) provide for a 45-day timeline for the due process
hearing. Section 303.440(c) incorporates the 45-day timeline under the
part B procedures, but also allows States that choose to adopt the part
B procedures, to elect the shorter 30-day timeline provided under the
part C due process procedures. This gives States that choose to adopt
the part B due process procedures the flexibility to put in place a
timeline shorter than that required under the part B due process
procedures. Therefore, we do not believe it is appropriate to revise
the regulation as requested by the commenter.
Changes: None.
Due Process Complaint (Sec. 303.441)
Comment: One commenter requested that the Department clarify
whether the 15 days referred to in Sec. 303.441(d)(1) are calendar
days or working days.
Discussion: The 15 days are calendar days. As defined in Sec.
303.9, a day means calendar day, unless otherwise indicated.
Changes: None.
Comment: One commenter recommended amending Sec. 303.441(b) to
reflect the part B provisions in 34 CFR 300.153(b)(4), which recognize
that a homeless family may not have an address to list when filing a
complaint.
Discussion: The commenter's concern is addressed in Sec.
303.441(b)(4), which requires, in the case of a homeless child (within
the meaning of section 725(2) of the McKinney-Vento Homeless Assistance
Act), that the due process complaint include available contact
information for the child and the name of the EIS provider serving the
child.
Changes: None.
Comment: One commenter requested that Sec. 303.441(d) specify that
hearing officers must allow parties to amend their due process
complaint notices unless doing so would prejudice the other party. The
commenter stated that generally, parents may not understand fully the
due process procedures and should be allowed to modify their due
process complaint without having to file a new complaint and begin the
process again.
Discussion: Section 303.441(d)(3)(i), consistent with section
615(c)(2)(E) of the Act, provides that a party may amend its due
process complaint only if the other party consents in writing to the
amendment and is given the
[[Page 60218]]
opportunity to resolve the due process complaint through a meeting; or,
as provided in Sec. 303.441(d)(3)(ii), the hearing officer grants
permission to amend the complaint, except that the hearing officer may
only grant permission to amend the complaint at any time not later than
five days before the due process hearing begins. We further note that a
party may withdraw its complaint, and re-file it. The regulation aligns
with the Act and, therefore, we decline to revise the regulation as
requested by the commenter.
Changes: None.
Comment: One commenter recommended extending the time when a party
receiving a due process complaint must send a response that
specifically addresses the issues raised in the due process complaint.
The commenter stated that the 10 days provided in Sec. 303.441(f) is
not enough time to research and develop an appropriate response.
Discussion: Section 303.441(f) incorporates the requirements in
section 615(c)(2)(B)(ii) of the Act, which provides that the receiving
party must provide the party that filed the complaint a response to the
complaint within 10 days of receiving the complaint. We do not have the
authority to extend this time period.
Changes: None.
Resolution Process (Sec. 303.442)
Comment: One commenter requested that the Department revise the
paragraph heading of Sec. 303.442(a), ``Resolution meeting'' to read
``Meeting to obtain facts and details.''
Discussion: Section 303.442(a)(2) states that the purpose of the
resolution 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. ``Resolution meeting'' is thus, the appropriate paragraph
heading for Sec. 303.442(a).
Changes: None.
Comment: A few commenters stated that there is no statutory basis
for the 30-day resolution timeline in Sec. 303.442 and that the
timeline is too long for a time-sensitive program like part C of the
Act.
Discussion: Section 303.442, regarding the resolution process, only
applies in cases where a State has chosen to adopt the part B due
process procedures under section 615 of the Act. Section 303.442(b)(1)
incorporates the 30-day resolution timeline specified in section
615(f)(1)(B)(ii) of the Act.
Changes: None.
Comment: A few commenters requested that Sec. 303.442(b)(4)
include a definition of the term ``reasonable effort.''
Discussion: Section 303.442(b)(4) provides that, 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 the hearing officer dismiss the parent's due
process complaint. We would expect that throughout the 30-day
resolution period the lead agency would make those efforts necessary,
as dictated by the individual circumstances of each particular case, to
encourage the parent to participate in the resolution meeting. If the
lead agency requests the hearing officer to dismiss the parent's due
process complaint pursuant to Sec. 303.442(b)(4), it would be up to
the hearing officer to determine whether the lead agency has made
reasonable efforts to obtain the participation of the parent in the
resolution meeting. Thus, specifying activities that would constitute
reasonable efforts under Sec. 303.442(b)(4) in all cases is not
appropriate.
Changes: None.
Comment: Several commenters suggested that Sec. 303.442(b)(4) is
incompatible with the nature of the part C program because dismissing a
case when a parent does not agree to participate in a resolution
session may establish an adversarial relationship between the parents
and the lead agency.
Discussion: Section 303.442(b)(4) provides that when a parent does
not participate in the resolution meeting, despite the lead agency's
reasonable efforts to persuade the parent to participate (which efforts
must be documented), the lead agency may request that the hearing
officer dismiss the due process complaint. Although this section
provides the lead agency with the option to request dismissal, the lead
agency is not required to request a dismissal and may agree instead to
an extension of the time to conduct a resolution meeting in order for
the parties to continue mediation efforts. Additionally, it is the due
process hearing officer who determines whether dismissal of the due
process complaint is warranted, based not only on the lead agency's
request, if one is made, but also based on any parent's response. The
availability of both the lead agency's option to request dismissal and
the impartial hearing officer's determination ensures that dismissal of
a due process complaint is based on case-specific circumstances.
Changes: None.
Comment: One commenter recommended that Sec. 303.442(b) be amended
to require the lead agency to present the requirements in this section
to a parent verbally or in the parent's primary mode of communication,
in order to ensure that a parent understands these requirements.
Discussion: Section 303.421(b)(3), regarding the content of the
prior written notice and procedural safeguards notice, provides that
the notice must be in sufficient detail to inform the parents about,
among other things, how to file a due process complaint in the due
process procedures the State has adopted pursuant to Sec. 303.430(d),
and any timelines under those procedures. Further, Sec.
303.421(c)(1)(ii) requires that the notice be 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. Thus, the regulations already address the commenter's concern
regarding providing the notice in a parent's primary mode of
communication and we do not believe that it is appropriate to amend the
regulations to require verbal reading of the notice. We would expect
that the notice would be read to a parent if the parent requested this
assistance.
Changes: None.
Hearing Rights (Sec. 303.444)
Comment: One commenter questioned whether it is appropriate to have
an infant or toddler at a due process hearing.
Discussion: While parents always have the right to determine
whether their infant or toddler is present at a hearing, we do not
believe it is necessary to specify this right in Sec. 303.444(c)(1)
because, in general, infants and toddlers with disabilities do not need
to be present to either serve as witnesses at, or required participants
in, a due process hearing. However, we note that under either the part
B or part C due process hearing procedures, a parent is in the best
position to decide whether an infant or toddler will attend the due
process hearing.
Changes: We have removed Sec. 303.444(c)(1) and renumbered
paragraphs (c)(2) and (c)(3) as paragraphs (c)(1) and (c)(2) of this
section.
Hearing Decisions (Sec. 303.445)
Comment: One commenter recommended eliminating the
[[Page 60219]]
provisions distinguishing between substantive and procedural violations
of part C of the Act in Sec. 303.445, stating that it is not
appropriate to make this distinction in the part C regulations.
According to the commenter, this regulation violates section 607(a) of
the Act.
Discussion: Section 303.445 applies to States that choose to adopt
the part B due process procedures under section 615 of the Act. Thus,
it is appropriate to include language in Sec. 303.445 that is parallel
to 34 CFR 300.513, which reflects section 615(f)(3)(E) of the Act
concerning the nature of hearing officer decisions, including the
requirement that decisions be based on substantive grounds, and to
include the standards under which a hearing officer may find that a
child was denied appropriate identification, evaluation, placement, or
provision of early intervention services based on procedural
inadequacies. Section 303.445(a) is based on the requirements specified
in section 615(f)(3)(E) of the Act and thus, is consistent with section
607(a) of the Act, which requires the Secretary to issue regulations
that are necessary to ensure that there is compliance with the specific
requirements of the Act.
Changes: None.
Comment: One commenter recommended that the heading of Sec.
303.445(a) be amended to reflect the standard that a hearing officer
must use to make decisions--which is whether the infant or toddler with
a disability and his or her family were provided appropriate early
intervention services.
Discussion: Section 303.445(a) incorporates section 615(f)(3)(E) of
the Act, which provides the substantive and procedural grounds upon
which the decision of a due process hearing officer may be based; these
substantive and procedural grounds are broader than the standard
suggested by the commenter. Therefore, we decline to amend the heading
of this paragraph.
Changes: None.
Comment: None.
Discussion: In order to make Sec. 303.446(b) consistent with Sec.
303.443(b), which requires the lead agency to conduct the due process
hearing, and section 635(a)(10) of the Act, which requires the lead
agency to have a single line of responsibility, we have removed in
Sec. 303.446(b) the authority for a public agency (other than the lead
agency) to conduct due process hearings when a State adopts under Sec.
303.430(d) the part B due process procedures. However, we have retained
the authority for the lead agency to establish procedures that would
allow any party aggrieved by the findings and decision in the due
process hearing to appeal to, or request reconsideration of the
decision by, the lead agency. If the lead agency establishes such
procedures, those procedures must meet the same requirements in Sec.
303.446(b), (c), and (d).
Changes: We have removed the authority for public agencies (other
than the lead agency) to conduct due process hearings in Sec.
303.446(b), consistent with Sec. 303.443(b), which requires the lead
agency to conduct the due process hearing. We amended Sec. 303.446(b)
to permit the lead agency to establish procedures that would allow any
party aggrieved by the findings and decision in the due process hearing
to appeal to, or request reconsideration of the decision by, the lead
agency.
Timelines and Convenience of Hearings and Reviews (Sec. 303.447)
Comment: One commenter requested that the word ``child'' as used in
Sec. 303.447(d), concerning the requirement that each hearing and each
review involving oral arguments be conducted at a time and place that
is reasonably convenient to the parents and child involved, be defined
or removed.
Discussion: Section 303.6 defines the term child as it is used
throughout this part.
Changes: None.
Civil Action (Sec. 303.448)
Comment: A few commenters recommended that Sec. 303.448 stipulate
that courts have subject-matter jurisdiction over actions brought under
sections 615 and 639 of the Act, concerning procedural safeguards.
Discussion: Section 303.448 incorporates sections 615(i)(2),
615(i)(3)(A), 615(l), and 639 of the Act, which provide for the right
of an aggrieved party to bring a civil action to appeal the findings
and final decision of a due process hearing. Concerning the commenter's
request to clarify subject-matter jurisdiction of courts to hear such a
civil action, section 615(i)(2)(A) of the Act states that a civil
action to appeal a due process decision may be brought in a district
court of the United States without regard to the amount in controversy.
These sections of the Act set forth the requisite subject-matter
jurisdiction for Federal and State courts to hear such civil actions.
Thus, it is not necessary to clarify subject-matter jurisdictional
grounds beyond those identified in sections 615(i)(2), 615(i)(3)(A),
615(l), and 639 of the Act.
Changes: None.
Subpart F--Use of Funds and Payor of Last Resort
Use of funds, payor of Last Resort, and System of Payments (Sec.
303.500)
Comment: None.
Discussion: Given that the provisions in Sec. 303.500 address the
general requirements for each State's fiscal policies, we have moved
the provision in proposed Sec. 303.521(a), concerning the general
option that a State may establish a system of payments (i.e., financial
sources such as insurance or family fees to pay for part C services),
to Sec. 303.500(b) and renumbered the other provisions in Sec.
303.521 accordingly. We have added the term ``premiums'' to the
examples of cost participation fees for clarity in Sec. 303.500(b).
Changes: We have renumbered proposed Sec. 303.500 as Sec.
303.500(a) and moved the general requirement in the introductory text
of proposed Sec. 303.521(a) to Sec. 303.500(b). We also added the
phrase ``system of payments'' to the heading of Sec. 303.500 and the
word ``premiums'' to Sec. 303.500(b).
Permissive Use of Funds by the Lead Agency (Sec. 303.501)
Comment: None.
Discussion: To ensure that the use of funds requirements in Sec.
303.501 are also subject to other fiscal application requirements in
Sec. Sec. 303.120 through 303.122 and Sec. Sec. 303.220 through
303.226 (concerning fiscal assurances each State must include in its
application for funds), we have added references to these other fiscal
provisions in Sec. Sec. 303.120 through 303.122 and Sec. Sec. 303.220
through 303.226.
Changes: We have added in the introductory text of Sec. 303.501
references to Sec. Sec. 303.120 through 303.122 and Sec. Sec. 303.220
through 303.226.
Comment: One commenter requested clarification on the
implementation of the requirement in Sec. 303.501(a) that part C funds
be used for direct early intervention services ``that are not otherwise
funded through other public or private sources.'' This commenter also
noted that funding sources might vary by child, which is difficult for
a State to monitor.
Discussion: The purpose of Sec. 303.501(a) is to ensure that
Federal funds are used to supplement or increase the level of resources
available in a State for the provision of early intervention services
and are not used to replace existing resources. Section 303.501(a)
incorporates the language in section 638(1) of the Act that permits,
but does not require, States to use part C funds for direct early
intervention services when there are no other public
[[Page 60220]]
or private sources available to pay for these services, subject to the
requirements in Sec. Sec. 303.510 through 303.521. In a State that
uses part C funds to pay for direct early intervention services, the
State must ensure implementation of the payor of last resort provisions
in section 640 of the Act and in Sec. Sec. 303.510 through 303.521.
With respect to the commenter's concern about identifying and
monitoring funding sources to pay for a service for a particular child,
under Sec. 303.344(d)(1)(iv), the child's IFSP Team must identify in
the IFSP the payment arrangements, which include identifying the
funding source(s) that will be used to pay for each early intervention
service identified in the IFSP. Consistent with Sec. 303.33(b)(9), the
role of a service coordinator includes coordinating the funding sources
for early intervention services specified in the IFSP. States may
monitor and implement the payor of last resort requirements in Sec.
303.501(a) in a variety of ways. For example, a State may provide IFSP
Teams with a list of resources that may be available to pay for a
specific IFSP early intervention service in that State. A State may
require service coordinators to review with parents available funding
sources to pay for a specific IFSP service based on family-specific
circumstances (e.g., military families or children already enrolled in
Title V or other programs) in order to implement the payor of last
resort provisions in Sec. 303.501(a). Given the parallel requirements
in Sec. Sec. 303.33(b)(9) and 303.344(d)(1)(iv) and the variety of
ways in which States may implement the requirements in Sec.
303.501(a), it is not feasible to further clarify how this provision
might be implemented.
Changes: None.
Comment: Many commenters opposed the provision in Sec. 303.501(d),
which allows the use of part C funds to serve children over the age of
three, because existing appropriations for part C are not sufficient to
cover the cost of providing early intervention services to eligible
infants and toddlers under age three and their families. Some
commenters requested that the Department clarify that Sec. 303.501(d)
should not take effect until sufficient appropriations are available to
trigger incentive funding under section 643(e) of the Act. One
commenter supported Sec. 303.501(e), which allows 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.
Discussion: The provisions in Sec. 303.501(d) and (e), concerning
a State's option to make available early intervention services in lieu
of FAPE to children with disabilities beyond age three and
strengthening the statewide system, directly reflect the language in
section 638(4) and (5) of the Act. Under sections 632(5)(B)(ii) and
635(c) of the Act and Sec. 303.211, States have the option, but are
not required, to make part C services available to eligible children
over the age of three. While the provision in section 643(e) of the Act
requires the Department, in any fiscal year for which the appropriation
for the part C program exceeds $460,000,000, to reserve a portion of
the funds as incentive funds for States to serve children three years
of age until entrance into elementary school, nothing in the Act
(including sections 632(5)(B)(ii) and 635(c)) links the availability of
the option to make part C services available to eligible children over
the age of three to the availability of funding under section 643(e) of
the Act.
Changes: None.
Payor of Last Resort (Sec. 303.510)
Comment: Several commenters requested that the language from the
note following current Sec. 303.527 (concerning the intent of Congress
that other funding sources continue for services that would be
available to eligible children but for the existence of programs under
part C of the Act) be incorporated in the payor of last resort
requirements in Sec. 303.510. These commenters noted that the language
in the note supports congressional intent for an interagency structure
to finance early intervention services and is an important statement
supporting States' efforts to develop the necessary partnerships to
fund the part C system.
Discussion: The substance of the note that follows current Sec.
303.527 is included in Sec. 303.510(c) as a rule of construction. The
rule of construction, which references funding sources under the Social
Security Act, 42 U.S.C. 701, et seq. (SSA), clarifies that nothing in
part C of the Act may be construed to permit a State (including the
lead agency and other agencies in the State) to withdraw funding for
services that currently are or would be made available to eligible
children but for the existence of part C of the Act. Thus, funding from
other sources would continue to be available to support services that
are included in the IFSP. To make this clearer, we have amended Sec.
303.510(c) to include a reference to section 1903(a) of the SSA, the
specific section of the SSA regarding medical assistance for services
and have clarified that nothing in this part may be construed to permit
a State to reduce medical or other assistance available in the State.
Changes: We have amended Sec. 303.510(c) by removing the final
phrase ``within the State'' and including the phrases: (1) ``in the
State'' and (2) ``including section 1903(a) of the SSA regarding
medical assistance for services furnished to an infant or toddler with
a disability when those services are included in the child's IFSP
adopted pursuant to part C of the Act.''
Comment: One commenter opposed referencing Sec. 303.520, regarding
use of insurance for payment of services, in Sec. 303.510(a),
regarding payor of last resort. The commenter noted that in light of
part C's payor of last resort requirements parental consent should not
be required for the use of private insurance in Sec. 303.520 because
the requirement to obtain parental consent diminishes the lead agency's
capacity to implement a consistent payor of last resort policy. The
commenter requested that the Department clarify, amend, or remove the
reference to Sec. 303.520 in Sec. 303.510(a).
Discussion: The requirement in Sec. 303.510(a) directly
incorporates the long-standing payor of last resort requirements in
section 640(a) of the Act (and reflected in current Sec. 303.527(a)
and (b)). The reference to Sec. 303.520 in Sec. 303.510(a) was added
to ensure that States do not interpret part C payor of last resort
provisions to override the requirements in Sec. Sec. 303.520 and
303.521, concerning use of insurance and systems of payments.
As discussed in response to comments on Sec. 303.520, the
Department has determined that funds from public health insurance or
benefits (e.g., Medicaid or CHIP) or private insurance are not
considered available funding sources under part C's payor of last
resort provisions, unless a parent has provided the consent required
under Sec. 303.520(a)(1) and (b)(1), concerning parental consent for
use of public benefits or insurance or private insurance, or one of the
exceptions under Sec. 303.520(a)(2) or (b)(2) applies. When other
public funds are available to pay for part C services, such as funds
from the Department of Defense's TRI-CARE medical assistance program or
TANF, part C funds are the payor of last resort.
Changes: None.
Comment: Several commenters recommended adding a reference to the
Children's Health Insurance Program
[[Page 60221]]
(CHIP) in Sec. 303.510(c), which requires that nothing in this part be
construed to permit a State to reduce medical or other available
assistance or to alter eligibility under Title V of the SSA or Title
XIX of the SSA, within the State, because CHIP is a potential Federal
funding source for early intervention services.
Discussion: Section 303.510(c) directly incorporates the payor of
last resort provisions in section 640 of the Act, which only expressly
reference Titles V and XIX of the SSA (which are the statutory
authorities respectively for the Maternal and Child Health and Medicaid
public benefits programs). No other statutory authorities are cited. We
believe it would be inappropriate to add a reference to CHIP without
also adding statutory authorities for all other funding sources.
Changes: None.
Methods To Ensure the Provision of, and Financial Responsibility for,
Part C Services (Sec. 303.511)
Comment: None.
Discussion: We have changed the title of Sec. 303.511 to better
align with the title of section 640(b)(1) of the Act, which addresses
methods of ensuring and establishing financial responsibility for part
C services.
Changes: We have changed the title of Sec. 303.511 to ``Methods to
ensure the provision of, and financial responsibility for, Part C
services''.
Comment: One commenter requested that Sec. 303.511(a) be clarified
to require States to have in place methods for establishing financial
responsibility and for providing early intervention services using one
of the three methods listed in Sec. 303.511(a). The commenter stated
that, as proposed, Sec. 303.511(a) appeared to require that States (a)
establish financial responsibility in State law or regulation, (b) sign
interagency and intra-agency agreements, and (c) have other written
methods determined by the Governor, or the Governor's designee, and
approved by the Secretary as part of the State's application.
Discussion: We agree that clarification of this provision is
necessary and have amended proposed Sec. 303.511(a) and removed
proposed Sec. 303.511(b). New Sec. 303.511(a) has been added to track
the language of section 640(b)(1)(A) of the Act, requiring each State
to ensure that has in place methods for State interagency coordination
such that the Chief Executive Officer of a State or designee of the
Chief Executive Officer shall ensure that the interagency agreement or
other method for interagency coordination is in effect between each
State public agency and the designated lead agency. New Sec.
303.511(a)(1) incorporates proposed Sec. 303.511(b), providing that
the interagency coordination must ensure the provision of, and
financial responsibility for, early intervention services provided
under this part. New Sec. 303.511(a)(2) requires that such services be
consistent with the requirements of section 635 of the Act and the
State's application under section 637 of the Act, including the
provision of such services during the pendency of any dispute between
the State agencies.
Proposed Sec. 303.511(a) has been redesignated as Sec. 303.511(b)
and has been revised to indicate that States must meet the requirements
of this section using one of the three methods listed.
Changes: We have added new paragraph Sec. 303.511(a), removed
proposed Sec. 303.511(b), and redesignated proposed paragraph (a) as
new paragraph (b). We revised Sec. 303.511(b) by adding the phrase
``in one of the following''.
Comment: Two commenters supported the addition of proposed Sec.
303.511(a)(2), redesignated Sec. 303.511(b)(2), permitting States to
use signed interagency and intra-agency agreements to establish
financial responsibility and provide early intervention services. Other
commenters requested that the Department require States to report to
the Secretary the dollar amounts that flow into the system based on the
use of interagency and intra-agency agreements.
Discussion: The Department does not require States to submit data
to the Secretary on the amount of funding obtained for part C services
through interagency or intra-agency agreements because the Department
does not have a programmatic or regulatory need to collect such
information at this time and we do not want to place an additional data
collection burden on States. However, States may choose to collect such
data and may need these data to track the amount of funds expended and
budgeted for the provision of early intervention services in order to
meet part C's nonsupplanting requirements in Sec. 303.225.
Changes: None.
Comment: One commenter requested, for clarity, that the word
``method'' in proposed Sec. 303.511(b), regarding methods for
establishing financial responsibility and providing early intervention
services, be replaced with ``formal interagency agreement or other
written method.''
Discussion: Proposed Sec. 303.511(b), redesignated Sec.
303.511(a)(1), directly incorporates the language in section 640(b) of
the Act concerning obligations to ensure, and methods of ensuring,
services. Section 640(b) of the Act and Sec. 303.511(a)(1) make clear
that ``method'' refers to the manner in which a State ensures the
fiscal responsibility of each agency for paying for part C services,
which could include a State law, regulation, signed interagency or
intra-agency agreement, or other appropriate written method. Adding the
phrase ``formal interagency agreement or other written method'' to the
regulation could appear to limit the options a State has for meeting
these requirements or indicate a preference for the method to be used.
Changes: None.
Comments: None.
Discussion: As part of the State's responsibility to have methods
in place for establishing financial responsibility, it is critical that
not only should such methods be consistent with the State's funding
policies adopted under Subpart F (including the system of payments) but
such methods must expressly include any provisions the State has
adopted under Sec. 303.520 regarding the use of insurance to pay for
part C services. Many of the provisions in Sec. 303.520 regarding use
of public benefits or insurance or use of private insurance can only be
implemented with one of the express methods identified in section 640
of the Act and in Sec. 303.511 (such as an interagency agreement,
State statute, or Medicaid State plan) and the State must include its
provisions regarding use of insurance in one of these methods to ensure
adherence to these requirements.
Changes: We have added to the end of Sec. 303.511(d)(2) the phrase
``and include any provisions the State has adopted under Sec. 303.520
regarding the use of insurance to pay for part C services.''
Policies Related To Use of Insurance To Pay for Part C Services (Sec.
303.520)
Use of Public Benefits or Insurance To Pay for Part C Services (Sec.
303.520(a))
Comment: We received many comments on the use of public benefits or
insurance to pay for part C services. Most commenters, including
parents, parent advocacy groups, State lead agencies, and EIS
providers, supported proposed Sec. 303.520(a)(1)(iii), which would
have required parental consent for enrollment in a public benefits or
insurance program when a parent is eligible under, but not already
enrolled in, such a program. These commenters maintained that a State
should not be able to require a parent to enroll in a public benefits
or insurance program,
[[Page 60222]]
such as Medicaid, as a condition of receiving IDEA part C services
because the act of enrollment could impose costs on parents and
families, affect their rights under other Federal programs, and have an
impact on a parent's credit rating.
However, the vast majority of commenters, including parents, parent
advocacy groups, State lead agencies, and EIS providers, opposed
proposed Sec. 303.520(a)(1)(i) that would have required parental
consent for using a child's or parent's public benefits or insurance to
pay for part C services when the child or parent is already enrolled in
such a program. Several commenters, including a State Interagency
Coordinating Council and a parent advocacy group, recommended that
States be required to provide notice to parents in lieu of obtaining
parental consent when the child or parent is already enrolled in such a
program, particularly if the child or parent does not incur specified
costs.
Commenters gave the following reasons for opposing the parental
consent requirement in proposed Sec. 303.520(a)(1)(i) when a child or
parent is already enrolled in a public benefits or insurance program:
(1) The use of public benefits or insurance is an important funding
source for IDEA part C services, (2) there may be an administrative
burden on State lead agencies and EIS providers in obtaining parental
consent that could result in a delay in providing services to children
and families, (3) IDEA statutory provisions, including sections
635(a)(10) and 640, require State lead agencies to coordinate all
funding sources and to use IDEA part C funds as a payor of last resort,
respectively; (4) Federal IDEA part C funds are designed to be the
``glue money,'' and not the primary funding source and thus only to be
used when other Federal, State, and local funds are not available to
pay for IDEA part C services; and (5) when a child or parent is already
enrolled in a public benefits or insurance program, a consent
requirement does nothing to protect privacy given that the agency
responsible for the administration of public insurance or public
benefits already has personal information about the child and family
and that other concerns, such as avoiding the potential negative impact
on a parent's credit rating, do not apply when a child or parent is
already enrolled in a public insurance or benefits program.
Additionally, two commenters who opposed the parental consent
requirement when a child or parent is already enrolled in a public
benefits or insurance program noted that parents already have the right
under part C of the Act to consent to each and every part C service on
the IFSP and that a separate consent provision provided parents with no
additional protections.
A minority of commenters supported proposed Sec. 303.520(a)(1)(i).
The primary reasons cited by commenters for supporting a parental
consent requirement when a child or family is already enrolled in a
public benefits or insurance program were that: (1) Parents should be
informed of all potential costs regarding use of their benefits; (2)
parents should understand any potential limitations in coverage or
future negative consequences and consent ensures accountability; (3)
the IDEA part C consent regulations should align with the IDEA part B
consent regulations; and (4) the consent provisions for public and
private insurance should be aligned.
The commenters who expressed concern regarding the potential costs
for parents of using public benefits or insurance to pay for IDEA part
C services cited costs such as decreasing available lifetime coverage
for a child or parent; paying for services that would otherwise be
covered by the public benefits or insurance program; increasing
premiums or discontinuing public benefits or insurance for that child
or parent as a result of such use; and risking loss of eligibility for
Medicaid home and community-based waivers based on overall health
expenses.
Discussion: We are restructuring and revising Sec. 303.520(a)
regarding the use of public benefits or insurance to pay for part C
services in response to commenters' concerns. As described in the
following paragraphs, we believe this approach is consistent with the
statutory framework and the provisions in sections 632(4)(B),
635(a)(10), 639(a)(2), and 640 of the Act.
Statutory framework. Section 632(4)(B) of IDEA, which defines early
intervention services, includes in the definition a requirement that
such services must be provided at no cost, except where Federal or
State law provides for a system of payments by families, which can
include costs such as charging parents a sliding scale fee for part C
services. Section 635(a)(10)(B) requires the State lead agency to
identify and coordinate all available resources in the State from
Federal, State, local, and private sources. Section 639(a)(2) of the
Act requires the State to ensure the confidentiality of personally
identifiable information, including the right of parents to written
notice of and written consent to the exchange of such information among
agencies consistent with Federal and State law. Section 640 of IDEA
requires the State lead agency to use Federal IDEA part C funds as a
payor of last resort; requires State interagency mechanisms to ensure
the timely provision of, and payment for, early intervention services;
and explicitly references the use of other public funding sources, such
as Medicaid, to pay for part C services. Read together, these IDEA part
C statutory provisions require States to use public benefits or
insurance (when available) to pay for part C services instead of using
Federal IDEA part C funds, and also require States to protect the
privacy rights of parents and their children.
Consent to enroll in a public benefits or insurance program. We
appreciate the commenters' concerns that the act of enrolling in a
public benefits or insurance program may impose costs on parents and
families, affect parents' and families' rights under other Federal
programs, or have an effect on a parent's credit rating. The act of
enrollment involves disclosure of personally identifiable information
regarding the child and family. Therefore, we are retaining the
provision in proposed Sec. 303.520(a)(1)(iii) in new paragraph
(a)(2)(i) of Sec. 303.520. This provision specifies that a State may
not require a parent to sign up for or enroll in public benefits or
insurance programs as a condition of receiving part C services and must
obtain parental consent prior to requiring enrollment. A consent
requirement for enrollment protects parents' financial interests by
allowing them to consider the costs they may incur by enrolling in a
public benefits or insurance program. Additionally, a consent
requirement for enrollment protects parents' rights regarding the
disclosure of personally identifiable information.
Children and parents who are already enrolled in a public benefits
or insurance program. We are persuaded by commenters who opposed the
requirement in proposed Sec. 303.520(a)(1)(i) to obtain parental
consent when a child or parent is already enrolled in a public benefits
or insurance program. The commenters argued that requiring consent
could affect the timely provision of part C services to children and
families and that requiring parental consent when a child or parent is
already enrolled in a public benefits or insurance program would not
provide additional privacy protections given that the public benefits
or insurance program already has personal information about the child
or parent. We also note that the consent provisions in Sec. 303.414
[[Page 60223]]
regarding the confidentiality of personally identifiable information
(where applicable) already provide parents with privacy protections.
Additionally, we recognize the importance of public benefits or
insurance as a funding source for part C services and the provisions in
sections 632(4)(B), 635(a)(10), and 640 of the Act, which include a
reference to State systems of payments, require States to coordinate
all resources, and require States to use part C funds as a payor of
last resort, respectively. Therefore, we are replacing proposed Sec.
303.520(a)(1)(i) with Sec. 303.520(a)(3) regarding written
notification to parents.
No-cost protections. We agree with commenters who noted that
parents must understand the implications of using their public benefits
or insurance to pay for part C services and the importance of parents
understanding their confidentiality rights. We also agree with
commenters who expressed concern that the State should not use a
child's or parent's public benefits or insurance if the parent would
incur specific costs as a result of the use of those benefits or
insurance. Thus, we are making the following changes in these final
regulations:
(1) Adding new Sec. 303.520(a)(1) explicitly stating that the
State may not use the public benefits or insurance of a child or parent
to pay for part C services unless the State both provides parents with
written notification about the IDEA part C no-cost protections and
applicable confidentiality provisions and meets the additional specific
no-cost protections identified in new Sec. 303.520(a)(2);
(2) Adding new Sec. 303.520(a)(2)(ii) stating that parental
consent must be obtained if use of a child's or parent's public
benefits or insurance would result in the following specified costs:
(a) A decrease in the available lifetime coverage for a child or
parent; (b) payment for services that would otherwise be covered by the
public benefits or insurance program; (c) increases in premiums or
discontinuation of public benefits or insurance for that child or the
parents as a result of such use; or (d) a risk of loss of eligibility
for the child or the parents for Medicaid home and community-based
waivers based on aggregate health expenses.
(3) Adding new Sec. 303.520(a)(2)(iii) stating that if a parent
does not provide consent under new Sec. 303.520(a)(2)(ii), the State
must still make available those part C services in the IFSP to which
the parent has provided consent.
Written notification to parents. As noted previously, we agree that
parents must be informed regarding the implications of a public agency
using their public benefits or insurance. Therefore, we are adding in
new Sec. 303.520(a)(3) that, prior to using a child's or parent's
public benefits or insurance to pay for part C services, the State must
provide written notification to the child's parents. This notification
may be provided at any time but in no case later than when the State
seeks to use the public benefits or insurance to pay for part C
services; without providing the notice, the State may not use such
funds to pay for part C services. The written notification must include
the following four important pieces of information.
First, the notice must include a statement that parental consent
must be obtained under Sec. 303.414, if that provision applies, before
the State lead agency or EIS provider discloses, for billing purposes,
a child's personally identifiable information to the State public
agency responsible for the administration of the State's public
benefits or insurance program (e.g., Medicaid) at any time. The consent
provision in Sec. 303.414 applies in States where the State lead
agency is not the State Medicaid or public benefits or insurance agency
or if the State lead agency chooses to adopt a consent provision even
if it is the State Medicaid or public benefits or insurance agency.
Second, the notice must include a statement of the no-cost
protection provisions in new Sec. 303.520(a)(2) (i.e., that parents
cannot be required to enroll in public insurance or benefits programs
and consent must be obtained if use of such insurance or benefits would
result in specified costs) and that if the parent does not provide the
consent under Sec. 303.520(a)(2), the State lead agency must still
make available those part C services in the IFSP for which the parent
has provided consent.
Third, the notice must include a statement that parents have the
right under Sec. 303.414, if that provision applies, to withdraw their
consent to disclosure of personally identifiable information to the
State public agency responsible for the administration of the State's
public benefits or insurance program (e.g., Medicaid) at any time.
Fourth, the notice must include a statement of the general
categories of costs that the parent could incur as a result of
participating in a public benefits or insurance program (such as co-
payments or deductibles). We believe it is important to include this
last element in the written notice to ensure that parents are informed
of the general potential costs that may result from using their public
benefits or insurance to pay for part C services. Additionally, we are
adding this last element in response to the many comments we received
about the need to make parents aware of these general costs.
Finally, we note that, under Title VI of the Civil Rights Act of
1964 and implementing regulations (42 U.S.C. 2000d et seq. and 34 CFR
100.1 et seq.), State lead agencies, as recipients of Federal funds,
must take reasonable steps to ensure that persons of limited English
proficiency (LEP) have meaningful access to programs and activities
funded by the Federal government, including part C services and any
notices required under these regulations and part C of the Act.
Providing meaningful access may require the State lead agency to ensure
that the notice is provided in a language other than English either
through oral or written translation.
Consent provisions under Part C and Part B of the Act and alignment
between public and private insurance. In response to commenters'
concerns about other part C consent provisions and alignment between
parts B and C of IDEA, we note that under section 639(a)(3) of the Act
and Sec. 303.420, parents have a separate right to consent to part C
services in the IFSP and to any changes in the frequency or intensity
of services in the IFSP and the right to decline at any time the
receipt of a particular part C service without jeopardizing the right
to any other part C service in the IFSP. Thus, while we appreciate the
commenters' desire to align the provisions related to the use of public
insurance under parts B and C of the Act, the differences in how these
two programs treat costs to families, the responsibility for funding,
and the consent for services, as well as the administrative structure
of part C programs argue against treating this issue in precisely the
same manner in both programs.
We have aligned where practicable the consent provisions for the
use of public and private insurance to pay for part C services, partly
in response to commenters. Specifically, for a State to use private
insurance or to use public benefits or insurance to pay for part C
services, the State may use such funding sources without obtaining
parental consent when the State ensures that parents do not incur
specific costs (as set forth in Sec. Sec. 303.520(a)(2) and
303.520(b)(2)), but must obtain parental consent when such costs are
incurred as a result of using such funding sources. We also place
continued importance on informing parents of the potential costs
through the notification provisions in Sec. Sec. 303.520(a)(3) and
(a)(4) for public
[[Page 60224]]
benefits or insurance and ensuring that States provide parents with a
copy of the State's system of payments policies under Sec.
303.520(b)(1)(iii) for private insurance. The one unique scenario for
public benefits or insurance is the initial act of enrollment for which
there is no parallel for private insurance and we are maintaining a
parent consent requirement in new Sec. 303.520(a)(2)(i) for this
circumstance for the reasons described earlier.
Costs associated with using public benefits or insurance. We are
retaining in new Sec. 303.520(a)(4) the provisions in proposed Sec.
303.520(a)(2), which require the State to identify in its system of
payments policies under Sec. 303.521 any costs that the parent would
incur as a result of a State using a child's or parent's public
benefits or insurance to pay for part C services (such as co-payments
or deductibles, or the required use of private insurance as the primary
insurance). New Sec. 303.520(a)(4) also specifies that the written
notification provided under new Sec. 303.520(a)(3) must identify these
costs. The State must comply with both of these requirements in order
to use the child's or parent's public benefits or insurance for part C
services. The Secretary believes the notification provision is vital to
parents being informed about these potential costs and the system of
payments policies requirement ensures that as the State's system of
payments policies are being developed and subject to public
participation, these potential costs are identified as part of the
overall costs in the State's system of payments for part C services.
Changes: We have restructured Sec. 303.520 to add a new paragraph
(a)(1) that requires the State to provide parents with written
notification of the no-cost and confidentiality provisions in paragraph
(a)(3) and to meet the no-cost protections identified in paragraph
(a)(2) before it may use the public benefits or insurance of a child or
parent to pay for part C services.
New Sec. 303.520(a)(2)(i) provides that with regard to using the
public benefits or insurance of a child or parent to pay for part C
services, a State may not require a parent to enroll in a public
benefits or insurance program as a condition of receiving part C
services, and clarifies that the State must obtain parental consent
prior to using those benefits or insurance if the child or parent is
not already enrolled in a public benefits or insurance program.
We have added in new Sec. 303.520(a)(2)(ii) the requirement that,
in addition to providing the parent the written notification, a State
must obtain parental consent if use of a child's or parent's public
benefits or insurance would result in the following specified costs: A
decrease in the available lifetime coverage or any other insured
benefit for a child or parent; payment for services that would
otherwise be covered by the public benefits or insurance program;
increases in premiums or discontinuation of public insurance or
benefits for that child or parent as a result of such use; or a risk of
loss of eligibility for the child or the parent for Medicaid home and
community-based waivers based on aggregate health expenses.
We have added, in new Sec. 303.520(a)(2)(iii), a provision
clarifying that if a parent does not provide consent under new Sec.
303.520(a)(2)(ii), the State must still make available those part C
services in the IFSP to which the parent has provided consent.
The contents of the written notification are specified in Sec.
303.520(a)(3). Specifically, the notification must include: (1) A
statement that parental consent must be obtained under Sec. 303.414,
if that provision applies, before the State lead agency or EIS provider
discloses, for billing purposes, a child's personally identifiable
information to the State public agency responsible for the
administration of the State's public benefits or insurance program
(e.g., Medicaid); (2) a statement of the no-cost protection provisions
in new Sec. 303.520(a)(2) and that if the parent does not provide the
consent under Sec. 303.520(a)(2), the State lead agency must still
make available those part C services in the IFSP for which the parent
has provided consent; (3) a statement that the parents have the right
under Sec. 303.414, if that provision applies, to withdraw consent to
disclose a child's personally identifiable information at any time; and
(4) a statement of the general categories of costs that the parent
would incur as a result of participating in a public benefits or
insurance program (such as co-payments or deductibles, or the required
use of private insurance as the primary insurance).
Finally, new Sec. 303.520(a)(4) requires the State to identify
both, in its system of payments policies under Sec. 303.521 and the
written notification provided under new Sec. 303.520(a)(3), any costs
that the parent would incur as a result of the State's using a child's
or parent's public benefits or insurance to pay for part C services
(such as co-payments or deductibles, or the required use of private
insurance as the primary insurance).
Comment: One commenter supported proposed Sec. 303.520(a)(1)(ii),
which would allow a public agency to use public insurance or benefits
for Medicaid-eligible children in foster care without parental consent.
Two commenters suggested that this section should specifically refer to
both children in ``foster care'' and ``wards of the State.''
Discussion: We are removing proposed Sec. 303.520(a)(1)(ii)
because there is no cost for the use of Medicaid for children who are
automatically considered eligible and enrolled under Medicaid because
of their status in foster care under section 472 in Title XIX of the
Social Security Act (SSA). We also do not need to explicitly add a
reference to ``wards of the State'' because section 472 of the SSA
applies to children who are ``wards of the State;'' therefore, there
would be no consent requirement for such children.
Changes: We have removed proposed Sec. 303.520(a)(1)(ii).
Use of Private Insurance To Pay for Part C Services (Sec. 303.520(b))
Comment: Most commenters, including lead agencies, parent groups,
professional organizations, EIS providers, national organizations, a
State interagency coordinating council, and individuals, supported the
requirement in proposed Sec. 303.520(b)(1)(i) that a State may access
a parent's private insurance to pay for part C services only if it
obtains consent from the parent. Commenters supported the requirement
that consent be provided in accordance with the definition of this term
in Sec. 303.7, which requires that the parent be informed of all
relevant information and that the consent be in writing.
Several commenters opposed requiring parental consent before
accessing private insurance stating that requiring consent would result
in a loss of funding for States. A few of these commenters recognized
the need to protect a family's confidential information, but encouraged
the Department to consider other means to protect personally
identifiable information that may not adversely affect funding for
early intervention services under part C of the Act. One commenter
opposed the parental consent requirement in proposed Sec. 303.520(b)
because the commenter noted that the State already must obtain parental
consent for services under Sec. 303.420 and questioned how the State
could bill private insurance without parental knowledge.
Discussion: The Department agrees with the majority of commenters
that a
[[Page 60225]]
State must obtain parental consent before accessing a parent's private
insurance because of the potential costs that can be incurred by a
family with a privately insured child or parent as a direct result of
using such insurance, as well as the other potential negative effects
on the availability of private insurance for other family medical
expenses, including services needed by the child that are not covered
by part C. The Department believes that parental consent must be
required when the lead agency or EIS provider seeks to use private
insurance to pay for the initial provision of any early intervention
service in the IFSP and each time consent for services is required due
to an increase in the provision of services in the child's IFSP.
With regard to the potential loss of funds to a State, the
Department believes that the potential costs to parents outweigh the
need to make private insurance funds available to lead agencies unless
the cost protections in proposed Sec. 303.520(b)(2) are adopted by the
State. We disagree with the commenter who opposed the requirement for
separate parental consent for the use of private insurance. We believe
separate consent is needed because States implement the IFSP provisions
in a variety of ways and may not have identified all funding sources
for each service when they obtain consent for that service under Sec.
303.420.
Changes: We have added new Sec. 303.520(b)(1)(i) to specify that
parental consent is required when the lead agency or EIS provider seeks
to use private insurance to pay for the initial provision of any early
intervention service in the IFSP and each time consent for services is
required due to an increase in the provision of services in the child's
IFSP.
Comment: Some commenters requested clarification on when consent is
required if a State wishes to use insurance or benefits for a parent
who is determined unable to pay. Some commenters expressed concerns
that parents who had been determined unable to pay would still incur
costs as a result of using their insurance or benefits for part C
services.
Discussion: We agree that the requirements in this section could be
more clearly presented. We have restructured Sec. 303.520(b) for
clarity. Paragraph (b)(1) of this section sets forth the general
parental consent requirement and paragraph (b)(2) of this section sets
forth the specific exceptions to parental consent. We have reworded the
heading for this section to make clear that this section applies to any
State that uses private insurance to pay for part C services. We also
have moved the substance of proposed Sec. 303.520(b)(1)(iv) concerning
a parent's inability to pay and a State's obligation to provide part C
services, to new Sec. 303.520(c).
Regarding commenters' concerns that parents who had been determined
unable to pay would still incur costs as a result of using their
insurance or benefits for part C services, Sec. 303.521(a)(6) requires
the lead agency to pay for costs such as co-payments or deductibles if
a parent is determined unable to pay.
Changes: We have revised the language in paragraph (b), and added a
new paragraph (c).
Comment: Some commenters expressed concern that the use of private
insurance under Sec. 303.520(b) for part C services could make private
insurance benefits unavailable for additional medical or other services
that are not covered by part C of the Act. One commenter recommended
that exemptions be available to families if using their private
insurance to pay for early intervention services reduces the benefits
they receive through private providers. The commenter stated that
families should not be penalized for allowing a State to use their
insurance to pay for early intervention services.
Discussion: It is the Department's position that including an
exception to parental consent is not necessary because consent is
voluntary. A parent may always decline a request from the lead agency
or EIS provider to consent to the use of the parent's private insurance
for all or any specific part C service.
In those very few States that have adopted statutory protections
concerning private health insurance coverage for early intervention
services under part C of the Act that meet the requirements in Sec.
303.520(b)(2) we agree that is important for a parent to be informed of
potential costs if a State were to use a parent's private insurance.
Thus, we have added a provision in new Sec. 303.520(b)(1)(iii) that
requires a State to provide parents with a copy of its system of
payments policies when using the parent's private insurance to pay for
part C services. Moreover, the parent may elect to decline services at
any time under Sec. 303.420(a)(3).
Changes: We have added the phrase ``or initially using benefits
under a child or parent's private insurance policy to pay for an early
intervention service under paragraph (b)(2) of this section'' in Sec.
303.520(b)(1)(iii).
Comment: None.
Discussion: For consistency with Sec. 303.520(b)(1)(iii), we have
added ``premiums'' as an example of a potential cost in Sec.
303.520(b)(1)(ii), which requires a State to identify in its system of
payments policies the potential costs that parents would incur if the
State uses their private insurance policy to pay for part C services.
Changes: We have added a reference to premiums in Sec.
303.520(b)(1)(ii).
Comment: Commenters supported the requirement in proposed Sec.
303.520(b)(1)(iii) that a State provide a copy of its system of
payments policies when obtaining consent to use the parent's private
insurance and some commenters requested that the regulation clarify
that this copy be provided to the parent because it is the parent who
needs to be informed of potential costs as a result of the use of the
parent's private insurance to pay for early intervention services. One
commenter requested that a State include in its system of payments
policies specific information about any potential effect the use of
private insurance could have on the parent's annual or lifetime caps
under the parent's private insurance.
Discussion: Section 303.520(b)(1)(iii), as proposed, specifically
stated that the lead agency, when obtaining consent, must provide
parents with a copy of the State's system of payments policies that
identify the potential costs that the parent may incur as a result of
the use of the parent's insurance to pay for part C early intervention
services. We agree that notifying parents of potential costs under
Sec. 303.520(b)(1)(iii) requires States to identify out-of-pocket
costs such as co-payments, premiums, or deductibles as well as other
long-term costs such as loss of benefits due to annual or lifetime
insurance caps.
We also have revised Sec. 303.520(b)(1)(iii) to clarify that the
State system of payments policies must identify the potential costs
that parents may incur when their private insurance is used to pay for
early intervention services under this part.
Changes: We have revised proposed Sec. 303.520(b)(1)(iii) to add a
reference to parents and to clarify that potential costs identified in
the policies may include other long-term costs such as loss of benefits
resulting from annual or lifetime insurance caps under a private
insurance policy. We also have replaced the phrase ``while enrolled in
a private insurance program'' with the phrase ``when their private
insurance is used to pay for early intervention services under this
part.''
Comment: Some commenters supported proposed Sec. 303.520(b)(2),
which does not require the lead agency to obtain parental consent when
a State
[[Page 60226]]
has enacted specific statutory cost protections. These commenters
stated that Sec. 303.520(b)(2) would protect families while balancing
the need to make private insurance funds available to pay for part C
services. A few commenters requested clarification of Sec.
303.520(b)(2).
Some commenters opposed this exception to the parental consent
requirement because it: (1) Would result in litigation; (2) lacks
statutory authority; (3) is inconsistent with the part B regulations in
34 CFR 300.154(e) concerning accessing private insurance to pay for
services under part B of the Act; (4) is inconsistent with
confidentiality protections under the Act and HIPAA and also with the
Employee Retirement Income Security Act of 1974 (ERISA); and (5) could
not be uniformly applied because not all private insurance policies are
subject to State statutes.
Discussion: The purpose of the exception in Sec. 303.520(b)(2) is
to enable the lead agency in a State that has adopted specific
statutory cost protections to use private insurance to pay for part C
services. In those States that have adopted such protections, private
insurance funds are used to pay for part C services (e.g., occupational
or speech therapy) that are considered medically necessary for an
infant or toddler with a disability. We have clarified proposed Sec.
303.520(b)(2) to make clear that the exception to parental consent
applies only if the State's statutory protections expressly provide
that for the protections listed in new Sec. 303.520(b)(2)(i),
(b)(2)(ii), and (b)(2)(iii).
The implementation of such State statutory protections is
consistent with sections 632(4)(B) and 640 of the Act. Section
632(4)(B) of the Act requires early intervention services to be
provided at no cost except where a State has enacted a system of
payments. Section 640 of the Act requires Federal part C funds to be
used as the payor of last resort. Providing an exception to parental
consent when a State statute expressly provides specific cost
protections is consistent with sections 632(4)(B) and 640 of the Act.
These statutory cost protections include providing that: (1) A
child or parent would not experience a loss of benefits because of
annual or lifetime caps under a policy when private insurance is used
to pay for part C services; (2) a child, parent, or family member's
health insurance cannot be discontinued because the coverage was used
to pay for early intervention services; and (3) health insurance
premiums cannot be increased due to use of the health insurance to pay
for part C services.
We understand the commenters' concerns about potential litigation
by families and the commenters' question about whether all private
insurance policies in a State are subject to that State's statutory
protections. The exceptions to parental consent identified in proposed
Sec. 303.520(b)(2) apply only to the extent that the State statute
provides the protections in that section for private insurance policies
in the State. Additionally, several State statutes that fall under this
exception have been in place for years without any litigation.
We recognize that this exception to parental consent for use of
private insurance to pay for services differs from the implementing
regulations of part B of the Act, which do not contain a similar
exception. However, part B of the Act requires FAPE be provided at no
cost. In contrast, part C of the Act explicitly authorizes States to
establish a system of payments that may result in a parent incurring
some costs. The exception in proposed Sec. 303.520(b)(2) ensures that
parents are afforded needed protections while providing the lead agency
with the ability to use private insurance to pay for part C services in
those States, maximize funding sources, and use part C funds as a payor
of last resort.
The Secretary believes these part C regulations protect parents in
all States by providing them with information about the State's system
of payments, including (if applicable) the relevant use of private
insurance and exceptions regarding specific statutory no-cost
protections. Additionally, parents ultimately retain the right to
decline or revoke consent for any particular part C service in the IFSP
for their child if they do not wish to have their private insurance
used for a particular service.
Concerning the commenter's concern that personally identifiable
information would be disclosed to private insurers without consent, we
recognize that the filing of claims for early intervention services may
reveal limited personally identifiable information not already
disclosed to the insurer, but on balance, it is the Department's
position that this disclosure is necessary in this limited circumstance
to implement the requirements of sections 632(4)(B) and 640 of the Act.
Changes: We have clarified Sec. 303.520(b)(2) by moving the phrase
``the use of private health insurance to pay for part C services
cannot'' to each of Sec. 303.520(b)(2)(i), (b)(2)(ii), and
(b)(2)(iii). We also have replaced the word ``or'' that appears at the
end of Sec. 303.520(b)(2)(ii) with the word ``and''. Finally, we have
added the phrase ``expressly provides'' to the introductory text of
Sec. 303.520(b)(2).
Inability to Pay (Sec. 303.520(c))
Comment: None.
Discussion: Proposed Sec. 303.520(b)(1)(iv) should have applied to
both the use of public insurance and benefits and private insurance for
payment for services. We have removed proposed Sec. 303.520(b)(1)(iv),
and added a new Sec. 303.520(c) to reflect the requirement that the
inability to pay provisions in this section apply to both the use of
public insurance and benefits and private insurance.
Changes: We have removed proposed Sec. 303.520(b)(1)(iv) and added
new Sec. 303.520(c).
Proceeds or Funds From Public Insurance or Benefits or From Private
Insurance (Sec. 303.520(c), Redesignated Sec. 303.520(d))
Comment: Some commenters requested clarification on proposed Sec.
303.520(c)(3), which provided that States could exclude from the
calculation of State and local expenditures under proposed Sec.
303.225 (prohibition against supplanting), the State portion of funds
from a Federal public benefits program such as Medicaid. Some
commenters objected to the provision because they viewed it as
administratively burdensome and stated it would create significant
challenges with data collection and reporting.
Discussion: As discussed in the Analysis of Comments and Changes
section accompanying Sec. 303.225, since the publication of the IDEA
part C NPRM in May 2007, part C State lead agencies have raised a
number of issues regarding the MOE provisions in the part C regulations
(which implement part C's supplement not supplant requirements).
Therefore, we are removing proposed Sec. 303.520(c)(3) and intend to
issue an NPRM addressing MOE requirements under part C of the Act.
Changes: We have removed proposed paragraph (c)(3) and renumbered
the paragraphs in this section accordingly.
Comment: Several commenters, including a few lead agencies,
supported proposed Sec. 303.520(c), redesignated Sec. 303.520(d),
which provided that proceeds or funds from public insurance or benefits
or private insurance are not treated as program income for purposes of
34 CFR 80.25, the EDGAR provision regarding program income. However,
some commenters, including most lead agencies under part C of the Act,
opposed this provision
[[Page 60227]]
stating that lead agencies under part C of the Act generally do not
have a mechanism to track or account for the use of funds from public
insurance or benefits or private insurance or the ability to direct how
these funds will be used.
Discussion: The commenters have misinterpreted proposed Sec.
303.520(c)(1), redesignated Sec. 303.520(d)(1). Proposed Sec.
303.520(c)(1), redesignated Sec. 303.520(d)(1), states that for
purposes of 34 CFR 80.25, proceeds or funds from public insurance or
benefits or from private insurance are not treated as program income.
Therefore, States do not need to maintain data on these funds for
program income purposes.
Changes: None.
Comment: A few commenters recommended that under section 618 of the
Act, the Department require States to collect and report to the
Secretary data on the costs assessed to parents and the payments
obtained from public and private insurance for early intervention
services. These commenters recommended that the Department conduct a
study to determine how the regulations concerning the use of private
insurance in Sec. 303.520 and the States' systems of payments and fees
in Sec. 303.521 affect family participation in part C of the Act.
Discussion: Section 618 of the Act does not require States to
report data on their use of insurance or a system of payments, and we
do not want to place this added data collection and paperwork burden on
States. The Department has long required each State that adopts a
system of payments (including the use of insurance or family fees to
pay for part C services) to submit its policies and procedures as part
of the State's part C grant application. This requirement is reflected
in Sec. 303.203(b). Data from FY 2009 indicate that approximately 23
States have a system of payments that includes express authority to
charge parents for some part C services. Data from the last few years
indicate an increase in the number of States that have adopted a system
of payments and an increase in the fees parents are charged for part C
services in those States that have the authority to charge a parent a
fee for part C services. Through the application process, the
Department will continue to obtain information on whether and how a
State is implementing a system of payments (including the use of
insurance).
Each State is unique and its system of payments policies and
procedures are subject to the public participation requirements in
Sec. 303.208. Through the public participation process, all
stakeholders, including parents of infants and toddlers with
disabilities, have an opportunity to comment on whether and what
policies and procedures should be adopted by the State. The decision of
whether the Department needs to conduct a study on the impact of a
system of payments (including the use of insurance) on a family's
decision to participate in part C of the Act is a policy decision that
is best left to the Department and should not be a subject of these
regulations.
Changes: None.
System of Payments and Fees (Sec. 303.521)
Comment: Commenters requested that we define the term, ``actual
cost of the part C services'' in proposed Sec. 303.521, which stated
that a State's system of payments policies must include an assurance
that families will not be charged any more than the actual cost of the
part C service. Two commenters requested that this provision expressly
specify that a State can bill both insurance and parents for early
intervention services as long as the combination of the two does not
exceed the actual cost of services. One commenter asked whether family
fees can exceed the actual cost of services.
Discussion: Subject to any consent requirements in Sec. Sec.
304.420 and 303.520, the lead agency may use, as part of its system of
payments, funds from multiple sources (e.g., public insurance or
benefits, private insurance, and family fees) to pay for each part C
service in an IFSP. However, the lead agency may not receive funds
(whether from one or a variety of sources, such as family fees or
insurance, to pay for a particular service) that exceed the actual cost
of providing the service. Under a State's system of payments, the State
may not charge a family an amount that exceeds the actual cost of
providing a particular part C service. Nor may the State charge a
family for amounts received by the State from other funding sources for
that service. Also, families may not be charged for the cost of
services specified in Sec. 303.521(b)(2), including evaluations and
assessments.
The actual cost for a part C early intervention service may vary by
State and, therefore, it is not appropriate to define the term ``actual
costs of service.''
Proposed Sec. 303.521(a)(4)(iii) included two distinct
requirements relating to families not being charged more than the
actual cost of service and families with insurance not being charged
disproportionately more than those without insurance. We have clarified
this section by separating the two requirements into paragraphs
(a)(4)(iii) and (a)(4)(iv) of this section, respectively. The language
in new Sec. 303.521(a)(4)(iv) is the same as proposed Sec.
303.521(a)(4)(iii), regarding the prohibition that families with public
insurance or benefits or private insurance not be charged
disproportionately more than families who do not have public insurance
or benefits or private insurance. In Sec. 303.521(a)(4)(iii), we have
further clarified in a parenthetical that a family may not be charged
any more than the actual cost of the part C service (factoring in any
amount received from other sources for payment for that service).
Changes: We have added the following parenthetical ``(factoring in
any amount received from other sources for payment for that service)''
to revised Sec. 303.521(a)(4)(iii), regarding the requirement that the
lead agency cannot charge a family more than the actual cost of a
service. We have moved the language from proposed Sec.
303.521(a)(4)(iii) to a new Sec. 303.521(a)(4)(iv) regarding the
provision that 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.
Comment: One commenter recommended that the ``or'' in Sec.
303.521(a) should be ``and/or.''
Discussion: We agree with the commenter that the language in the
second parenthetical in the introductory text of Sec. 303.521(a)
should be amended to make clear that the fees charged to a family under
a State system of payments can include one or more of the following
funding sources: A child's or parent's public insurance, public
benefits, or private insurance. Therefore, we have amended Sec.
303.521(a) accordingly.
Changes: We have amended the second parenthetical in the
introductory text of Sec. 303.521(a) to say ``(including any fees
charged to the family as a result of using one or more of the family's
public insurance, public benefits, or private insurance).''
Comment: One commenter requested that the regulations in Sec.
303.521(a) specify how and how often a State must evaluate a family's
ability or inability to pay.
Discussion: A State is not required to reevaluate a parent's
ability or inability to pay. Therefore, it is the Department's position
that it is not appropriate to add such a provision to Sec. 303.521(a)
because some States may not wish to reevaluate a parent's ability to
pay given that a
[[Page 60228]]
child may receive services at most for three years and many children do
not enter the part C program until they are at least 18 months of age.
However, if a State requires that a lead agency's determination of
a parent's ability or inability to pay be reevaluated on an annual or
other basis, the State must include such a provision in its system of
payments policies that is provided to parents under Sec. 303.521(e) in
order for parents to be informed of when and how they may be required
to provide financial information. We are adding language requiring the
policies to specify when and how the State makes its determination of
the ability or inability to pay.
Upon further review of proposed Sec. 303.521(a)(3), we realized
that the State's policies must define not only a parent's inability to
pay but also a parent's ability to pay. We have added ``ability to
pay'' to the definitional requirement. Additionally, we are clarifying
that in defining a parent's ability to pay, the State must include
consideration of family expenses such as extraordinary medical expenses
as many families with infants and toddlers with disabilities have
unusually high medical expenses.
Changes: We have revised Sec. 303.521(a)(3) to provide that the
State's system of payments policies must indicate when and how the
State makes its determination regarding a parent's ability or inability
to pay, and, in defining the ability to pay, include extraordinary
medical expenses as an example of family expenses.
Comment: One commenter requested that the final regulations provide
further guidance on developing a State system of payments. The
commenter recommended that, to ensure that a system of payments does
not discourage families from participating in early intervention
programs, the Department should develop regulations that set a maximum
contribution limit by families.
Discussion: Section 632(4)(B) of the Act, concerning the definition
of ``early intervention services,'' and Sec. 303.521, concerning a
system of payments and fees, provide States with the option to
establish a system of payments that sets forth policies specifying the
amount of fees (including any fees charged to the family as a result of
using one or more of the family's public insurance, public benefits, or
private insurance) that are subject to the State's system of payments.
While we appreciate the commenter's request that the regulations
identify maximum fiscal contributions for parents, the Department's
position is that States must have flexibility in determining the system
of payments, including any fee structure.
However, the State's fee structure is subject to the requirements
in Sec. 303.521(a), which requires that families not be charged more
than the actual cost of the part C service and that a parent's
inability to pay will not result in a delay or denial of services under
this part. We also expect to provide additional technical assistance
and guidance to States on State system of payments.
Changes: None.
Comment: Two commenters recommended that we revise Sec. 303.521(a)
to require that States provide families with an explanation of each
item that is billed to them or to their insurance to ensure that the
parents can confirm that the charges match the level or amount of
service provided to children and their families.
Discussion: Part C of the Act does not address the methods that
States must use to bill parents for part C services. However, many lead
agencies have developed policies and procedures regarding billing
parents for part C services. With regard to insurance billing, lead
agencies may, but are not required under part C of the Act to, develop
methods or a process to inform a parent of each item billed to the
insurance of the parent or the amount of insurance proceeds received
for payment of early intervention services for their infant or toddler
with a disability and the child's family. The Department's position is
that including such provisions in the regulations is not necessary
because it is best left to States to determine which billing methods
are most compatible with established State policies and procedures.
Changes: None.
Comment: One commenter recommended requiring States to provide an
assurance that the quality of part C services will be maintained
regardless of the financial situation of the child or family.
Discussion: Consistent with section 635(a)(4) of the Act, regarding
requirements for a statewide system, and Sec. 303.340, regarding
IFSPs, each lead agency under part C must ensure, for each infant or
toddler with a disability, regardless of financial situation, the
development, review, and implementation of an IFSP that is consistent
with the definition of that term in Sec. 303.20, and meets the
requirements in Sec. Sec. 303.342 through 303.345. The lead agency
under part C of the Act also must ensure the provision of the early
intervention services identified in the child's IFSP, regardless of the
financial situation of the child or family. Given these provisions, the
Department's position is that requiring States to provide the
additional assurance suggested by the commenter is not necessary.
Changes: None.
Comment: One commenter opposed the language in Sec. 303.521(a)(6)
that permits the lead agency to use part C or other funds to pay the
parent's share in a State with a system of payments with family fees,
when the parent is determined able to pay. According to the commenter,
this provision could be read to permit an agency to obligate part C
funds for costs or fees that a parent might otherwise be required to
pay. The commenter requested that this paragraph be clarified or that
part C funds be increased to fund this requirement.
Discussion: Section 303.521(a)(6) provides States with a system of
payments the option of using part C funds to pay for those costs, such
as co-payments, that would be incurred by the parent based on the use
of the child's or parent's public benefits or insurance or private
insurance to pay for part C services. By permitting, but not requiring,
lead agencies to use part C funds to pay for a parent's out-of-pocket
costs even when the parent is able to pay, the lead agency may be able
to neutralize the financial impact on a parent and thus encourage the
parent to provide any consent needed under Sec. 303.520. We also have
revised this section to further clarify that if a parent is determined
unable to pay, the lead agency must use part C or other funds to pay
for the costs identified in Sec. 303.520(b)(2) or the fees charged to
the parent under Sec. 303.521(a)(1).
Changes: We have revised Sec. 303.521(a)(6) to clarify that the
lead agency may use part C funds to pay for costs such as premiums,
deductibles, or copayments identified in Sec. 303.520(b)(2) that it
must use part C or other funds to pay for the costs identified in Sec.
303.520(b)(2) or the fees charged to the parent under Sec.
303.521(a)(1) for a parent determined unable to pay.
Comment: One commenter recommended that a State with a system of
payments that requires a family cost share or private insurance
component should not be allowed to charge families for services that
must be provided to a child in order for the child to receive FAPE
under part B of the Act, particularly once a child turns three and
services are provided at no cost to parents.
Discussion: If a child is eligible at or before age three under
part B of the Act to receive FAPE and the service is
[[Page 60229]]
identified on the child's IEP as part of FAPE for that child, then,
under 34 CFR 300.17(a), that service must be provided at no cost to the
parent. If a State elects to continue to provide part C services for
children age three and older who were receiving part C services, and a
parent provides consent for such services, the part C provisions apply,
including those relating to a State system of payments.
Changes: None.
Comment: One commenter asked, with respect to Sec. 303.521(c),
whether a State that has a FAPE mandate for children under the age of
three or a State that uses funds under part B of the Act to serve
children under age three can have a system of payments to provide part
C services to children from age three until kindergarten.
Discussion: A State that elects to offer services under Sec.
303.211 and has a State law mandating FAPE for children with
disabilities for particular ages (such as ages three through five) must
ensure that services that are a part of FAPE for an eligible child in
that age range are provided at no cost. If there are part C services
that are available to a child with a disability under Sec. 303.211
that are not part of FAPE for that child, the State may adopt a system
of payments for such services.
Changes: None.
Comment: One commenter requested clarification on Sec. 303.521(b),
concerning mandatory public agency functions that are not subject to
fees that public agencies must perform. The commenter expressed concern
that requiring these functions ``to be carried out at public expense by
a State'' prohibits local early intervention programs from using local
funds to pay for these functions.
Discussion: The requirement in Sec. 303.521(b) does not prohibit
local early intervention programs from using local funds to pay for
these functions. For clarity, we have removed the phrase ``by a
State.''
Changes: We have removed the phrase ``by a State'' from Sec.
303.521(b).
Comment: Several commenters recommended that we require a State to
include in its system of payments policies information on the family's
procedural safeguards.
Discussion: We agree with commenters that States must inform
parents about procedural safeguards when the State determines a
parent's ability to pay or imposes a fee on parents. We have added in
new Sec. 303.521(e) the requirement that States establish written
policies as part of their system of payments to inform parents about
the availability of procedural safeguards.
We have clarified that the State must inform parents of the
availability of existing dispute resolution procedures, including
participating in mediation in accordance with Sec. 303.431, requesting
a due process hearing under Sec. 303.436 or Sec. 303.441, whichever
is applicable, or filing a State complaint under Sec. 303.434.
Additionally, we have provided States with the flexibility to use any
other procedure established by the State for speedy resolution of
financial claims, provided that such use does not delay or deny a
parent's procedural rights under this part. If a State uses such other
procedures, it must inform parents of those procedures.
We also have clarified that a State may inform parents of these
procedural safeguard options by either providing parents with a copy of
the State's system of payments policies when obtaining consent for the
provision of early intervention services under Sec. 303.420(a)(3) or
including this information with the notice provided to parents in Sec.
303.421.
Changes: We have added a new Sec. 303.521(e).
Subpart G--State Interagency Coordinating Council
Composition (Sec. 303.601)
Comment: One commenter requested that the Department require a
State representative of the child protective services agency to serve
as a member of the State Interagency Coordinating Council (Council).
Discussion: Neither section 641(b) of the Act nor Sec. 303.601
requires the Governor to appoint, nor prohibits the Governor from
appointing, to the Council a State representative from the agency
responsible for child protective services. Under section 641(b)(1)(L)
of the Act and Sec. 303.601(a)(12), the Governor must appoint a
representative from the State child welfare agency that is responsible
for foster care in that State (i.e., the State agency that is
responsible for administering Title IV-E of the SSA in the State). In
many States, this State child welfare agency is also the State child
protective services agency that is responsible for administering CAPTA.
Section 641(b)(2) of the Act and Sec. 303.601(c) permit the
Governor to appoint to the Council members other than those specified
by the Act. The Governor may appoint to the Council a representative
from the State agency responsible for administering CAPTA if the
Governor determines it is appropriate in that particular State.
Responsibilities of this State agency also may include coordinating
child find efforts or implementing section 637(a)(6) of the Act, which
requires the State to have referral policies for a child under the age
of three who is involved in a substantiated case of child abuse or
neglect or who is identified as affected by either illegal substance
abuse or withdrawal symptoms resulting from prenatal drug exposure.
Additionally, nothing in the Act would prevent the Governor from
appointing a representative from the State agency responsible for
implementing other early childhood programs such as the Maternal,
Infant, and Early Childhood Home Visiting Program passed on March 23,
2010, amending Title V of the Social Security Act or a representative
from the State's EHDI system.
Given that the decision to appoint any other members to the Council
(other than those specified in section 641(b)(1) of the Act) is at the
discretion of the Governor of the State according to the needs of that
State, we decline to include in Sec. 303.601 the appointment suggested
by the commenter.
Changes: None.
Comment: A few commenters supported proposed Sec.
303.601(a)(1)(iii), which stated that a parent could not be appointed
as a member of the Council if he or she was an employee of a public or
private agency involved in providing early intervention services
because, in their view, including parents who are also EIS providers on
the Council would be a conflict of interest. However, the majority of
commenters opposed this proposal because, in their view, parents who
are also EIS providers may bring a valuable perspective to the Council
in terms of understanding issues from different standpoints and may be
able to anticipate the impact of a given policy or procedure in unique
ways. Some commenters questioned whether preventing parents from
serving on the Council somehow suggests that the contribution and
comments of parents of children with disabilities who are not also
employed by EIS providers are more valuable than parents who are
employed by EIS providers. One commenter recommended that these
regulations require that the Council's bylaws or State law stipulate
that no member, including parents who are EIS providers, may vote on an
issue that may represent a conflict of interest.
Discussion: We agree that the appointment to the Council of parents
of children with disabilities who are also employed by EIS providers
could bring a unique perspective to the work of the Council. For this
reason, we have removed proposed Sec. 303.601(a)(1)(iii), which would
have prohibited an employee of a public or private agency
[[Page 60230]]
involved in providing early intervention services from being appointed
and serving as a parent member of the Council. The language in proposed
Sec. 303.601(a)(1)(iii) reflected the Department's recommendation in
the note to current Sec. 303.600 that parents selected to serve on the
Council not be employees of any agency involved in providing early
intervention services. With the removal of proposed Sec.
303.601(a)(1)(iii), parents who are employees of a public or private
agency involved in providing early intervention services could serve as
parent members of the Council in accordance with the requirements that
at least 20 percent of the Council be comprised of parent members of
children with disabilities aged 12 or younger and at least one parent
member be the parent of an infant or toddler with a disability or a
child with a disability aged six years or younger. Finally, like all
Council members, pursuant to Sec. 303.601(d), a parent member of the
Council who is an employee of a public or private agency involved in
providing early intervention services may not 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.
Changes: We have removed proposed Sec. 303.601(a)(1)(iii), which
stated that a parent member on the Council may not be an employee of a
public or private agency involved in providing early intervention
services.
Comment: Section 303.601(b), which permits a Governor to appoint a
member of the Council to represent more than one program or agency from
the list in section 641(b) of the Act, drew a number of comments. Most
commenters objected to this provision due primarily to concerns that an
individual representing more than one program or agency on the Council
may have potential conflicts of interest in carrying out his or her
duties.
Discussion: Section 641(b) of the Act is silent on the issue of
whether the Governor must appoint separate individuals to represent
each of the constituencies that must be represented on the Council. The
Department's position is that it is a reasonable interpretation to
allow one individual to serve more than one required Council member
role because, in some States, a single agency performs multiple
functions that coincide with the Council representation requirements in
section 641(b) of the Act. Additionally, allowing a member of the
Council to represent more than one program or agency would not result
in actual or apparent conflicts of interest because, pursuant to Sec.
303.601(d), no member of the Council may cast a vote (and, thus, would
need to recuse himself or herself from the 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.
Changes: None.
Use of Funds by the Council (Sec. 303.603)
Comment: One commenter requested clarification on when or why the
Council, which is an advisory body, would conduct hearings pursuant to
Sec. 303.603(a)(1). The commenter stated that while the Council may
participate in hearings, given its advisory nature, it would not be
appropriate for the Council to hold hearings.
Discussion: Section 641(d) of the Act specifically allows the
Council, subject to the approval of the Governor, to prepare and
approve a budget using part C funds to conduct hearings and forums as
may be necessary to carry out its functions under part C of the Act.
The Act does not specify the circumstances under which the Council may
convene a hearing or forum. It is not appropriate for the Department to
stipulate such circumstances, as that decision is best left to the
Council.
Changes: None.
Comment: One commenter requested that the Department revise the
regulations to provide compensation for parents who serve on the
Council. A few commenters recommended that parent members of the
Council receive compensation regardless of their employment status.
Discussion: Providing compensation for parents who serve on the
Council is specifically addressed in Sec. 303.603(a)(2) and (a)(3),
which is consistent with section 641(d) of the Act. Section
303.603(a)(2) and (a)(3) provides that all Council members, including
parents, may be reimbursed for reasonable and necessary expenses for
attending Council meetings and performing Council duties (including
child care for parent members) and may receive compensation if not
employed or if required to forfeit wages from other employment when
performing official Council business.
Changes: None.
Functions of the Council--Required Duties (Sec. 303.604)
Comment: One commenter recommended that the final regulations
expressly state that the Council may continue to work with the lead
agency on preparing the mandatory annual report that the Council must
submit to the Governor and to the Secretary, and that if the Council
concurs with the State's APR that is prepared by the lead agency, the
Council may elect to sign a statement indicating its concurrence with
the lead agency's APR in lieu of the Council preparing its own separate
annual performance report.
Discussion: Section 303.604(c), regarding the requirement that the
Council annually report to the Governor and 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, remains
substantively unchanged from current Sec. 303.654 and is consistent
with section 641(e)(1)(D) of the Act. Section 303.604(c)(2) expressly
provides that the Council's annual report must contain the information
required by the Secretary.
Under current Departmental policy, the Council may choose to
prepare and submit its own annual report to meet the requirements in
section 641(e)(1)(D) of the Act (current Sec. 303.654 and new Sec.
303.604(c)), or certify its concurrence with the APR submitted by the
lead agency under Sec. 303.702(b)(2). Therefore, it is the
Department's position that adding language regarding how the Council
may meet its annual reporting requirement is not necessary.
Changes: None.
Comment: A few commenters recommended that Sec. 303.604(a)(3),
regarding the promotion of methods for intra-agency and interagency
collaboration on child find, monitoring, financial responsibility, and
the provision of early intervention services and transition, be deleted
because, according to these commenters, the language in this section is
not aligned with section 641(e) of the Act. Specifically, the
commenters suggested that section 641(e) of the Act does not include or
imply that the functions of the Council include promoting methods for
interagency collaboration regarding child find, monitoring, financial
responsibility, provision of early intervention services, and
transition. Another commenter requested that the Department clarify the
meaning of the term ``methods,'' as it is used in Sec. 303.604(a)(3).
Discussion: Under section 641(e) of the Act, the functions of the
Council include, among other duties, advising and assisting the lead
agency in carrying out its single line of responsibility for the
State's part C statewide system under 635(a)(10) of the Act. The single
line of responsibility covers, in part, general supervision and
monitoring; coordination of Federal, State, local and private
resources; assignment of financial responsibility to the appropriate
agency; development of
[[Page 60231]]
procedures that ensure timely service provision; resolution of intra-
agency and interagency disputes; and entry into interagency agreements
that define each agency's financial responsibility for early
intervention services and that include all additional components
necessary for ensuring cooperation and coordination between agencies.
One of the Council's roles under section 641(e)(1)(C) of the Act is to
advise the lead agency and the SEA on early childhood transition
policies. The Department has found that noncompliance with part C
requirements can be due to barriers identified by lead agencies in
intra-agency and interagency coordination that correspond to the areas
under the lead agency's single line of responsibility (i.e., child
find, monitoring, financial responsibility, provision of early
intervention services, and transition).
Thus, the Department's position is that the language in Sec.
303.604(a)(3) is consistent with section 641(e) of the Act. Section
303.604(a)(3) ensures that the Council advises the lead agency in
exercising its authority under section 635(a)(10) of the Act to ensure
that there is a single line of responsibility for the State's part C
statewide system.
Additionally, although section 641(e)(1)(A) of the Act only refers
to interagency agreements, we have included in Sec. 303.604(a)(3), the
Council's role in promoting intra-agency agreements. We have included
the reference to intra-agency agreements because within many lead
agencies that are also SEAs, separate offices administer the early
intervention service program under part C of the Act and the preschool
program under part B of the Act. To facilitate the identification of,
and the provision of early intervention services to, infants and
toddlers with disabilities and their families, many SEA lead agencies
have developed intra-agency memoranda or agreements to meet the lead
agency's general supervision responsibilities under section 635(a)(10)
of the Act (including specifically the areas of child find, monitoring,
financial responsibility, provision of early intervention services, and
transition).
In Sec. 303.604(a)(3), we have intentionally used the word
``methods'' rather than ``interagency agreements.'' The term
``methods'' is intended to be broader than ``interagency agreements''
and to include entering into interagency agreements; this use of the
term ``methods'' aligns Sec. 303.604(a)(3) with the reference in
section 640(b) of the Act to methods of ensuring services (which may
include an interagency agreement or other mechanism for interagency
coordination). We believe that further clarification of the term
``method'' is not needed.
Changes: None.
Comment: One commenter recommended revising the reporting period
for the annual report to the Governor and to the Secretary in Sec.
303.604(c)(2). The commenter stated that the reporting period is
inconsistent with section 641(e)(1)(D) of the Act.
Discussion: Section 641(e)(1)(D) of the Act does not specify the
reporting period; rather, it requires the Council to prepare and submit
to the Governor and to the Secretary an annual report on the status of
early intervention programs for infants and toddlers with disabilities
and their families in the State. The language in Sec. 303.604(c)(2) is
consistent with this requirement and clarifies that the information in
the report be ``for the year for which the report is made.'' Thus, if
the Council submits a report to the Governor and Secretary for FFY
2006, Sec. 303.604(c)(2) simply requires that the information in that
report be from the FFY 2006 reporting period (i.e., July 1, 2006
through June 30, 2007).
Changes: None.
Comment: A few commenters expressed concern that the regulations no
longer stipulate that the Council must advise and assist the lead
agency in the development and implementation of the policies that
constitute the statewide system and suggested that the omission of this
requirement would diminish the authority of the Council.
Discussion: Sections 303.604 and 303.605 incorporate the
requirements in section 641(e)(1) and (e)(2) of the Act, regarding the
functions, duties, and authorized activities of the Council. Section
641(e)(1)(B) and Sec. 303.604(a)(4) continue to require the Council to
advise and assist the lead agency in preparing the State's part C
application and any amendments thereto. The requirement in current
Sec. 303.650(a)(1) that the Council advise and assist the lead agency
in the development and implementation of the policies that constitute
the part C statewide system was based on the requirement in section
641(e)(1)(B) of the Act that the Council advise and assist the lead
agency in preparing its State's part C application. Prior to the 2004
amendments, the Act required each State to submit, as part of its part
C application, the State's policies that constituted its part C
statewide system.
However, in 2004, section 634 of the Act was revised to no longer
require each State to submit, as part of its part C application, all of
the State's policies for the statewide system identified in section 635
of the Act; instead only those policies, procedures, descriptions,
methods, certifications, and other items that are identified or
referenced in, or the Department determines are needed under, section
637(a) of the Act and subpart C of these regulation must be included in
a State's grant application. Thus, the function of the Council in
advising and assisting the lead agency in the preparation of its part C
application, would include advice and assistance concerning any
policies the lead agency developed to meet the requirements in section
637(a) of the Act. The Council also has an opportunity to comment on
other State part C policies when the lead agency adopts or revises its
policies that are part of the State's part C statewide system because
the lead agency must make those policies available for public comment
and hearing based on the requirements in Sec. 303.208(b).
Changes: None.
Authorized Activities by the Council (Sec. 303.605)
Comment: None.
Discussion: With The Improving Head Start for School Readiness Act
of 2007, Congress amended the Head Start Act. Section 642B of the Head
Start Act now requires the Governor of each State to designate or
establish a council to serve as the State Advisory Council on Early
Childhood Education and Care (referred to as State Advisory Councils).
42 U.S.C. 9837b(b)(1)(A)(i). The overall responsibility of each State
Advisory Council on Early Childhood Education and Care is to lead the
development or enhancement of a high-quality, comprehensive system of
early childhood development and care that ensures statewide
coordination and collaboration among the wide range of early childhood
programs and services in the State, including child care, Head Start,
the IDEA programs (including the IDEA program under part C of the Act
and the preschool program under section 619 and part B of the Act), and
pre-kindergarten programs and services. Because this requirement
regarding State Advisory Councils on Early Childhood Education and Care
was established after the proposed part C regulations were published,
in final Sec. 303.605 we have added coordination with these State
Advisory Councils as an authorized activity of the SICC. Such
coordination may allow States to offer joint professional development
opportunities for EIS professionals with other early learning
professionals including those who work in child care, Head Start and
Early Head Start, State funded preschool, 619 programs, and
[[Page 60232]]
early elementary education to address such issues as school readiness
across all the major domains of early learning and transition to
elementary school. This change will not impose an additional burden on
the SICC because it is an optional duty under Sec. 303.605 and not a
required duty under Sec. 303.604.
Changes: New Sec. 303.605(c) has been added to allow the SICC to
coordinate and collaborate with the State Advisory Council on Early
Childhood Education and Care, as described in section 642B(b)(1)(A)(i)
of the Head Start Act, 42 U.S.C. 9837b(b)(1)(A)(i).
Subpart H--Federal and State Monitoring and Enforcement; Reporting; and
Allocation of Funds
Comment: None.
Discussion: We have revised the heading of subpart H to reflect the
titles and sequence of the sections in this subpart.
Changes: We have changed the title of subpart H by removing the
terms ``administration'' and ``technical assistance'' and adding the
term ``reporting.'' We also have reordered the words in the title to
better reflect the order of the sections in this subpart.
State Monitoring and Enforcement (Sec. 303.700)
Comment: One commenter recommended that Sec. 303.700(a)(2), which
requires lead agencies to make determinations annually about the
performance of EIS programs using the categories in Sec. 303.703(b),
be deleted because the requirements have no statutory authority.
Discussion: We disagree with the commenter. Section 303.700(a)(2)
requires lead agencies to make annual determinations about the
performance of EIS programs. This requirement is consistent with
sections 616(a)(1)(C), (a)(3), (b)(2)(C)(i), (b)(2)(C)(ii)(I), and (e)
and 642 of the Act.
Sections 616(a)(1)(C) and 642 of the Act require the Secretary to
require States (and the designated lead agencies charged with
implementing part C of the Act in the State under section 635(a)(10) of
the Act) to monitor and enforce part C of the Act in accordance with
the monitoring priorities established by the Secretary under section
616(a)(3) of the Act (as modified by section 642 of the Act) and the
statutory enforcement options identified in section 616(e) of the Act.
Sections 616(a)(3) and 642 of the Act require the Secretary to
require States to monitor EIS providers located in the State using
quantifiable indicators in each of the priority areas specified in
section 616(a)(3) of the Act (as modified by section 642 of the Act),
as well as any qualitative indicators that are needed to measure
performance in those priority areas, except the State exercise of its
general supervisory responsibility because ``State general supervisory
responsibility'' applies only to States. Section 616(a)(1)(C)(ii) of
the Act requires each State to enforce part C of the Act in accordance
with sections 616(e) and 642 of the Act. Section 616(e) of the Act
describes the enforcement actions the Secretary must take if the
Secretary determines, based on the information provided by the State in
its APR, information obtained through monitoring visits, and any other
publicly available information, that the State needs assistance, needs
intervention, or needs substantial intervention in implementing the
requirements of part C of the Act.
These statutory provisions must be read in conjunction with
sections 616(b)(2)(C) and 642 of the Act, which require State lead
agencies to: (1) Publicly report on the performance of each EIS program
using the State's targets established in its SPP under the priority
areas described in section 616(a)(3) of the Act, and (2) report
annually to the Secretary through the APR on the performance of the
State in meeting the State's targets in the SPP.
Thus, lead agencies must make annual determinations about the
performance of each EIS program using the categories in section
616(d)(2) and (e) of the Act and Sec. 303.703(b). This requirement
stems from the statutory requirement that lead agencies must monitor
EIS providers located in the State using quantifiable and qualitative
indicators as specified in section 616(a)(3) of the Act (as modified by
section 642 of the Act), enforce part C of the Act in accordance with
section 616(e) of the Act (which refers to the requirement that the
Secretary make annual determinations about the performance of each
State using these same determination categories), and from sections
616(b)(2)(C)(i) and (b)(2)(C)(ii)(I) and 642 of the Act, which require
lead agencies to analyze and publicly report on the performance of each
EIS program on an annual basis.
Changes: None.
Comment: One commenter expressed concern that the Department uses
the terms ``program'' and ``provider'' inconsistently throughout these
regulations and that the reference in Sec. 303.700(a)(3) to EIS
program should instead or also include a reference to an EIS provider.
Discussion: We recognize that clarification is needed in the use of
the term EIS program in Sec. 303.700(a)(3), regarding the available
appropriate enforcement mechanisms identified in Sec. Sec.
303.700(a)(3) and 303.704(a)(2) that the lead agency must use if it
determines (for two consecutive years) that an EIS program needs
assistance. If the lead agency determines for two consecutive years
that an EIS program needs assistance, it must take one of two actions:
(1) Advise the EIS program of available sources of technical assistance
that may help the EIS program or (2) impose conditions on the funds it
provides to the EIS program, or if the lead agency provides funds to an
EIS provider (that is part of the EIS program) that is partially the
reason the EIS program is in need of assistance for two years, then the
EIS provider. If the lead agency provides part C funds to an EIS
provider, it may be appropriate for the lead agency to impose
conditions on the part C funds that the lead agency provides to the EIS
provider. The lead agency may impose conditions on its funding of an
EIS program or EIS provider in lieu of, or in addition to, providing
technical assistance under Sec. 303.700(a)(3).
Changes: We have added the phrase ``or, if the lead agency does not
provide part C funds to the EIS program, an EIS provider'' to the
parenthetical in Sec. 303.700(a)(3).
Comment: One commenter recommended that Sec. 303.700(a)(4) be
revised to require the lead agency to report ``frequently,'' and not
``annually,'' on the performance of its State and each EIS program
located in its State.
Discussion: Section 303.700(a)(4) reflects the requirements in
sections 616(b)(2)(C)(ii)(I) and 642 of the Act, which require State
lead agencies to report annually to the public on the performance of
each EIS program located in the State in relation to the State's SPP
targets. While a lead agency may elect to report more frequently to the
public on the performance of its EIS programs, we do not believe that
these regulations should require a lead agency to do so.
Changes: None.
Comment: One commenter stated that the proposed language in Sec.
303.700(b), while placing particular emphasis on requirements that are
most closely related to improving early intervention results for
infants and toddlers with disabilities and their families, was
excessive and may not result in better services. The commenter further
recommended that every effort be made to clarify and minimize the words
in this paragraph to better focus on direct services, child and family
outcomes,
[[Page 60233]]
and the IFSP process and service implementation.
Discussion: Section 303.700(b) incorporates the language from
section 616(a)(2) of the Act (as modified by section 642 of the Act),
regarding the primary focus of Federal and State monitoring. State
monitoring requirements are addressed in more detail, including the
areas mentioned by the commenter, through the SPP/APR process. For
example, as part of the SPP/APR process, the Secretary has established
monitoring priorities and indicators for States that reflect the goals
of improving early intervention results and functional outcomes for
infants and toddlers with disabilities while ensuring that EIS programs
comply with key part C requirements, including those relating to the
timely provision of early intervention services, child outcomes, family
capacity, timely evaluations, assessments, initial IFSP development,
and transition. Thus, the revisions to Sec. 303.700(b) recommended by
the commenter are not necessary.
Changes: None.
Comment: A few commenters recommended adding child find, public
awareness, eligibility, and service provision to Sec. 303.700(d),
which lists the areas on which the State must annually collect and
report data. One commenter recommended that we include in these
regulations the Department's SPP indicator that requires States to
evaluate the effectiveness of their part C program as it relates to
family outcomes. Another commenter recommended that these regulations
require States to report to the Secretary on family outcomes. The
commenter also recommended that, if States are required to report on
family outcomes, the regulations should clarify the definition of
family supports and services that are identified through the family
assessment.
Discussion: Section 616(a) of the Act (as modified by section 642
of the Act) requires States to focus their monitoring activities on
improving early intervention results and functional outcomes for
infants and toddlers with disabilities and meeting the program
requirements in part C of the Act. Section 616 of the Act further
requires that the Secretary establish indicators to adequately measure
performance in several priority areas.
The Secretary has established 14 such indicators under part C of
the Act for State reporting in the SPP/APR, and, through the OMB public
review process for information collections, has solicited public
comments on these indicators several times since the 2004 amendments to
the Act. These indicators address critical, substantive requirements of
part C of the Act, including those relating to child find for children
ages birth to one year and birth to three years; provision of early
intervention services in natural environments; early intervention child
outcomes; family capacity; timely initial evaluations, assessments and
IFSP development; timely service provision; and transition services.
While not specifically included as an SPP/APR indicator, the
Department's position is that public awareness is covered under the two
child find indicators. For example, a State must have an effective
public awareness program to ensure that eligible infants and toddlers
are identified for early intervention services.
Finally, issues related to family outcomes are adequately addressed
by the SPP/APR indicator that measures family capacity because that
indicator is designed to evaluate whether families know their rights,
can effectively communicate their needs, and can assist their children
to develop and learn. Moreover, we believe that it is not appropriate
to include in these regulations any specific SPP/APR indicator because
the Secretary must retain flexibility to revise indicators as
necessary.
Changes: None.
Comment: One commenter objected to the language in Sec. 303.700(e)
that requires a State, when it identifies noncompliance with the
requirements of part C of the Act by EIS programs and EIS providers, to
ensure that the noncompliance is corrected as soon as possible and in
no case later than one year after the State's identification of the
noncompliance. The commenter suggested that a one-year timeline for
correction is unreasonable. In contrast, a few commenters recommended
that Sec. 303.700(e) be revised to require that all identified
noncompliance be corrected as soon as possible, but no later than 90
days after identification.
Discussion: Correcting noncompliance as soon as possible is a
critical responsibility of lead agencies and EIS providers, and, as
discussed in the preamble of subpart B of these regulations, the
Department's position is that correction as soon as possible but no
later than one year is a reasonable timeframe for an EIS provider to
correct noncompliant policies, procedures, or practices and for the
lead agency to verify that the EIS program or EIS provider is complying
with the requirements of part C of the Act.
The Department's position is that a 90-day period from the
identification of noncompliance would not be workable because it is
unlikely that all instances of noncompliance could be corrected in that
timeframe. For example, if a lead agency identified an EIS provider as
noncompliant in making individualized decisions concerning the settings
in which infants or toddlers with disabilities receive early
intervention services, the lead agency would need to determine the
potential causes of the noncompliance and appropriate corrective
actions, which might include training service coordinators, reviewing
IFSP Team guidelines, or examining other policies, procedures or
practices, to ensure that the EIS provider had corrected any
noncompliant policies, procedures, or practices, and that the IFSP
Teams, subsequent to those corrections, were making EIS setting
determinations consistent with part C requirements. To take corrective
action and verify correction in a case such as this would likely
require more than 90 days to complete.
Through our monitoring experience, we have observed that, in most
cases, when a lead agency makes a good faith effort, the needed
corrective actions can be accomplished and their effectiveness verified
within one year from identification of the noncompliance. Timely
correction of noncompliance is critical to ensure proper and effective
implementation of part C of the Act. Therefore, it is the Department's
position that correction as soon as possible, but not later than one
year from identification, is appropriate.
Changes: None.
State Performance Plans and Data Collection (Sec. 303.701)
Comment: One commenter supported the requirement in Sec.
303.701(a) that each State include in its SPP a description of how the
State will improve its implementation of part C requirements. Another
commenter supported the requirement in Sec. 303.701(c) that each State
collect valid and reliable information on all SPP indicators. This
commenter requested that the regulations also require each State to
document the process used to verify the validity and reliability of the
data provided on the SPP indicators.
Discussion: As noted elsewhere in this preamble, the Secretary has
established 14 indicators in the SPP for part C of the Act. One of
these indicators (Indicator 14) requires each State to demonstrate that
it reports timely and accurate data under the reporting requirements in
section 618 of the Act and in the SPP and APR. Further, to ensure valid
and reliable data for each SPP/APR indicator, States must report data
in their SPP/APR
[[Page 60234]]
submissions according to required measurements and from specified data
sources. In addition to the percentages required in the indicators,
lead agencies are required to provide the actual numbers used in their
calculations. The Department's position is that these SPP/APR
requirements address the commenter's concern that States document how
they verify the validity and reliability of the data they report under
the indicators in their APRs.
Changes: None.
Comment: One commenter recommended that the Secretary not be
permitted to impose additional data collection requirements on States
unless existing data collection elements are eliminated.
Discussion: The majority of the information collected by the
Secretary under part C of the Act is required by sections 616 and 618
of the Act (as those sections are modified by section 642 of the Act).
Restricting the Secretary's ability to collect information, as
requested by the commenter, is not appropriate because the Secretary
needs the flexibility to collect information necessary to ensure the
effective operation and implementation of the part C program. This
responsibility comes not only from the Act, but also from the
Department's inherent authority to ensure that the laws it is charged
with implementing are carried out. Additionally, as discussed elsewhere
in this preamble, the Department is required to solicit public comments
through the OMB public review process whenever it intends to remove or
add information collections.
Changes: None.
State Use of Targets and Reporting (Sec. 303.702)
Comment: One commenter recommended that Sec. 303.702(a), which
requires each State to use the targets established in the SPP to
analyze the performance of each EIS program in implementing part C of
the Act, be amended to require each lead agency to define
geographically the local lead agency or EIS program.
Discussion: There is no local lead agency under part C of the Act,
but rather a State lead agency that is designated by the Governor in
accordance with section 635(a)(10) of the Act to be responsible for
implementing part C of the Act in the State. The lead agency implements
the requirements of a statewide system under part C of the Act either
by using its own personnel, through contracts with EIS providers or
through other arrangements, such as interagency agreements, with State
public agencies.
Section 303.12 defines EIS providers as entities or individuals
that provide early intervention services under part C of the Act. As
clarified in section 642(2) of the Act, EIS providers often serve a
comparable role under part C of the Act that LEAs serve under part B of
the Act. The definition of an EIS program, in contrast, is an entity
designated by the lead agency to be responsible for performance
reporting to the Secretary and the public under Sec. Sec. 303.700
through 303.702 (see the definition of EIS program in Sec. 303.11).
Although we expect, in most cases, that the lead agency will designate
its EIS programs on a geographic basis (e.g., counties, parishes, and
health or school districts), it is not always feasible to do so.
Therefore, it is the Department's position that it is not necessary to
require States to make EIS program designations by geographic areas.
States currently administer their part C programs through a variety of
administrative structures. For example, multiple EIS providers may
provide services in one or more overlapping geographic areas.
Therefore, States cannot be expected to revise their existing
administrative structures for the sole purpose of reporting performance
data by geographic areas within a State.
Changes: None.
Comment: Section 303.702(b)(1)(i)(A) requires that the lead agency
report annually to the public on the performance of each EIS program
located in the State in relation to the targets in its SPP no later
than 60 days following the State's submission of its APR to the
Secretary. One commenter supported this 60-day timeline. Another
commenter disagreed, stating that the 60-day reporting timeline is not
realistic. This commenter recommended that the lead agency be required
to report to the public as soon as practicable, but not later than the
end of the calendar year in which the State's APR is due to the
Secretary.
Discussion: We believe that it is important for the public to be
informed in a timely manner regarding the performance of each EIS
program in meeting the targets in the State's SPP. States are generally
required to submit their APRs to the Secretary by February 1st
following the end of the Federal fiscal reporting period. For example,
the FFY 2006 APR, which requires data to be reported for the period
July 1, 2006 to June 30, 2007 for the FFY 2006 reporting year, was due
February 1, 2008. Some data reported in the February 2008 APR
submission were collected by States in the fall of 2006. To ensure the
usefulness of these data, we agree with the commenter that States must
make the data publicly available as soon as practicable.
We also agree with the commenter that additional time may be needed
beyond the 60 days from the date the State submits its APR. We consider
120 days to be an appropriate timeframe for States to develop and make
public the reports on the performance of EIS programs on the targets in
the SPP and have made this change in the regulations. With this change,
a State will have four months before the State reports its APR data by
EIS program to the public. Given that States will have reported to the
public on this information at least two times prior to the effective
date of these regulations, the Department's position is that States
will already have effective and efficient systems in place to report
within the 120-day timeframe.
Changes: We have revised the timeline in Sec. 303.702(b) for the
State to 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 to be ``as soon as practicable but no later than 120 days''
following the State's APR submission.
Enforcement (Sec. 303.704)
Comment: One commenter stated that Sec. 303.704, regarding
enforcement under part C of the Act, requires significant
clarification. For example, the commenter questioned whether the
Department would impose sanctions if it determined that a State needed
assistance one year and the following year determined that the State
needed intervention.
Another commenter argued that the two consecutive year and three
consecutive year timeframes in Sec. 303.704(a) and (b) are unrealistic
and that these timeframes, which relate to the Secretary's annual
determinations regarding State performance under part C of the Act,
should refer to program years, not consecutive years.
Discussion: Section 303.704 incorporates the language in section
616(e)(1) through (e)(3) of the Act, which provides the minimum
enforcement actions the Secretary must take to ensure compliance with
the Act when the Secretary determines that a State needs assistance for
two consecutive years in implementing the requirements of part C of the
Act, or is in need of intervention in implementing the requirements of
part C for three consecutive years, or any time the Secretary
determines that a State needs substantial intervention in implementing
the requirements of part C of the Act. It is expected that under
[[Page 60235]]
most circumstances, the Department will follow the procedures specified
in section 616(e)(1) through (e)(3) of the Act and Sec. 303.707 in
enforcing part C of the Act. However, sections 616(g) and 642 of the
Act make clear that the Secretary has the authority to use enforcement
mechanisms, including sanctions under GEPA and EDGAR, to monitor and
enforce the implementation of part C of the Act.
In instances where the determinations for a State are different in
consecutive years (e.g., ``needs assistance'' in year one and ``needs
intervention'' in the following year), the Department may use the
enforcement mechanisms under GEPA and EDGAR in addition to those
identified in the Act and Sec. 303.707. Whether the Department will
need to use additional enforcement mechanisms will depend on the unique
facts of the situation. Thus, it is not possible for the Department to
identify in these regulations all situations in which the use of those
enforcement mechanisms may be appropriate.
Finally, we decline to change the references in this section from
``consecutive years'' to ``program years'' because section 616(e) of
the Act, which is the statutory authority for Sec. 303.704, refers to
consecutive years.
Changes: None.
Comment: None.
Discussion: To be consistent with section 642(3) of the Act, the
terms ``instructional'' and ``instruction'' in Sec. 303.704(a)(1)(ii)
have been revised to refer to ``early intervention service provision.''
Changes: The terms ``instructional'' and ``instruction'' in Sec.
303.704(a)(1)(ii) have been revised to refer to ``early intervention
service provision.''
Withholding Funds (Sec. 303.705)
Comment: One commenter requested that the phrase ``minimum
reasonable notice,'' as used in this section, be explicitly defined.
Discussion: The term ``minimum reasonable notice'' is not in Sec.
303.705(a), which incorporates the requirement in section 616(e)(4) of
the Act that the Secretary must provide reasonable notice and an
opportunity for a hearing to a State prior to the withholding of any
funds under the Act to that State. We believe that ``reasonable
notice'' as used in Sec. 303.705(a) reflects the common understanding
of the term--that the notice should be sufficiently informative and
timely given the circumstances. Thus, we do not believe that it would
be appropriate to further clarify ``reasonable notice'' as used in
Sec. 303.705(a) because what constitutes reasonable notice will, by
necessity, depend on the nature of the details in each particular
situation.
Changes: None.
Comment: One commenter expressed concern that the terms ``program''
and ``provider'' are used inconsistently throughout these regulations.
The commenter specifically suggested that the term ``EIS program'' be
added to Sec. 303.705(c)(1)(ii), as an entity subject to the lead
agency's suspension of further payments of part C funds when the
Secretary withholds those funds to the State.
Discussion: We agree with the commenter that the term EIS programs
should be added to Sec. 303.705(c)(1)(ii) in addition to the existing
reference to EIS providers because the terms have different
definitions.
Under Sec. 303.12, EIS providers are entities or individuals that
provide early intervention services under part C of the Act, regardless
of whether they receive part C Federal funds, and may include, where
appropriate, the lead agency and other public agencies responsible for
providing early intervention services to infants and toddlers with
disabilities in the State. EIS programs are different; under Sec.
303.11, an EIS program is an entity designated by the lead agency for
reporting under sections 616 and 642 of the Act and Sec. Sec. 303.700
through 303.702.
Lead agencies do not always provide part C funds directly to an EIS
provider, but instead may provide part C funds to an EIS program. Thus,
it would be appropriate to clarify in Sec. 303.705(c)(1)(ii) that the
lead agency must not make further payments of funds under part C of the
Act to specified State agencies, EIS programs or, if the lead agency
does not provide part C funds to the EIS program, EIS providers that
caused or were involved in the Secretary's determination under Sec.
303.703(b)(1).
Changes: We have added to Sec. 303.705(c)(1)(ii) a reference to
``EIS programs'' and the phrase ``if the lead agency does not provide
part C funds to the EIS program,''.
Public Attention (Sec. 303.706)
Comment: A few commenters stated that Sec. 303.706 should not
specify the methods of public notification that States must use, and
that the public notification language in Sec. 303.706 should be the
same as the language in the corresponding part B regulation, which
allows the State to determine the methods of notification to the
public.
Discussion: The public notification requirement in Sec. 303.706 is
consistent with other public reporting requirements in subpart H of
these regulations, specifically the public reporting requirements
relating to the SPP and APRs and public reporting on EIS program
performance in Sec. 303.702(b)(1)(i)(B). The Department's position is
that it is important for States to provide information to the public
related to its monitoring and enforcement actions in a consistent
manner. Therefore, we decline to revise Sec. 303.706 as requested by
the commenters.
Changes: None.
Reports--Program Information
Annual Report of Children Served--Report Requirement (Sec. 303.721)
Comment: One commenter asked the Department to clarify the child
count reporting requirements in Sec. 303.721. Specifically, the
commenter asked for clarification on whether States are required to
pick one date between October 1st and December 1st and report the count
for that date or report cumulatively on every child served between
those two dates. Two other commenters stated that the data reported to
Congress should not be based on point-in-time counts, but on cumulative
counts of all infants and toddlers served during the entire program
fiscal year.
One commenter recommended that the Department establish a single
due date for all reports that are required to be submitted annually
under section 618 of the Act and Sec. 303.721. Another commenter
supported the language in this section because it provides flexibility
for States.
Discussion: Section 303.721 describes the annual report of children
served under part C of the Act that is required by section 618 of the
Act (as modified by section 642 of the Act). Section 303.721 provides
States with the flexibility to determine the specific date between
October 1st and December 1st on which to collect the State's child
count and service settings data under part C of the Act. States must
choose a date between October 1st and December 1st of each year and
collect point-in-time child count and settings data on that date. To
ensure consistency, States are encouraged to use the same date from
year to year. We believe it is appropriate to continue to require
States to report point-in-time data on child count and settings because
the Department has required point-in-time data under part C of the Act
since 1992. Revising this standard would impose burdens on States as
they would need to redesign their data collection systems, and it also
would affect the Department's ability to compare data from multiple
years and develop trend
[[Page 60236]]
data. While States are not required to submit cumulative child count
data, they may provide such additional information in the child count
data information collection form (Table 1--Report of Children Receiving
Early Intervention Services in Accordance with part C).
Concerning combining due dates for State submissions required under
section 618 of the Act and Sec. 303.721, States currently have two
submission dates, one for child count data and service setting data and
a second for child exit and dispute resolution data. The child count
and service setting data are point-in-time collections taken on a date
between October 1 and December 1 and due the following February 1st.
The child exit and dispute resolution data are collected throughout the
year and due the November 1st following the end of the reporting year
(July 1 through June 30). Combining the due dates for these collections
is not appropriate since they are different types of collections.
Regulating on the due dates of these data requirements is not necessary
because these data collections are reviewed through the OMB data
collection process. Nothing prevents a State from collecting child
count and service setting data at the same point in time for a
particular reporting period if that reduces the State's burden in the
data collection process.
Changes: None.
Comment: One commenter recommended that data elements for the
annual report of children served be merged and condensed. One commenter
requested that lead agencies be required to track: (1) Premature
infants who, at a later date, receive early intervention services but
could have been served earlier if the State had presumptive eligibility
criteria; and (2) families who decline services due to cost-sharing
requirements.
Discussion: Following the amendments to the Act in 2004, the
Department examined all of the then-existing part C data collection
requirements under section 618 of the Act. Based on that examination,
the Department eliminated two collections (reporting on numbers of
service personnel and types of early intervention services) for the
section 618 data collection. It is not appropriate to condense or merge
additional data elements at this time because the data currently
collected are either (1) required by section 618 of the Act, or (2)
expressly authorized under the Act and necessary for the Secretary to
ensure proper implementation of the part C program and to measure
program performance under the Government Performance and Results Act of
1993.
We decline to add, as requested by the commenter, data collection
requirements for the part C program in these regulations at this time
because we are sensitive to the concerns of States and local entities
about increasing data collection burden. We believe that the data
States must collect under the regulations will enable the Secretary to
effectively monitor and measure the implementation of the part C
program. We are not convinced that the benefits associated with
collecting additional data, including that data suggested by the
commenter, would outweigh the burden on States and local entities
required to collect the data.
Changes: None.
Comment: One commenter recommended that Sec. 303.721(b) be deleted
because the tracking and reporting requirements in the section relate
to children ages three and older who are eligible for services under
section 619 of part B of the Act and should be the responsibility of
the part B program.
Discussion: Section 303.721(b) provides that if a State adopts the
option under section 635(c) of the Act and Sec. 303.211 to make early
intervention services under part C of the Act available to children
ages three and older, the lead agency must 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 such children
to continue to receive early intervention services. Therefore, because
these children are being served under part C of the Act, it is
appropriate for the State part C program, and not the State part B
program, to be responsible for reporting these data under section
618(a)(1)(B) and 635(c)(3) of the Act and Sec. 303.721(b).
Changes: None.
Annual Report of Children Served--Certification (Sec. 303.723)
Comment: One commenter expressed support for the requirement in
Sec. 303.723 that the lead agency certify the accuracy of the data
submitted under Sec. 303.721. Two other commenters recommended
deleting this section in its entirety. One commenter stated that any
count based on sampling cannot be ``accurate and unduplicated.'' The
other commenter stated that accurate and unduplicated counts should not
require extra certification.
Discussion: It is critical that data reported by States be
accurate. One way to ensure accuracy of that data is to require lead
agency officials to submit a certification attesting to the data's
accuracy, as is required by Sec. 303.723. Concerning the accuracy of
data collected through sampling, when a State uses sampling as a
methodology to obtain its child count data, the State must first, in
accordance with OMB-approved information collection requirements, have
its sampling plan approved by the Department. Prior to receiving
approval of a sampling plan, the State must demonstrate that its
proposed sampling plan will result in the collection of valid,
reliable, and accurate data. Currently no State has elected to use
sampling when collecting the data required under section 618 of the Act
and Sec. 303.721. For these reasons, we decline to delete Sec.
303.723 as requested by the commenters.
Changes: None.
Annual Report of Children Served--Other Responsibilities of the Lead
Agency (Sec. 303.724)
Comment: One commenter expressed support for Sec. 303.724, citing
the importance of having States establish procedures to verify the
accuracy of the data they collect and report. One commenter recommended
that this section be amended to be consistent with section 618(b)(2) of
the Act, which provides that the Secretary may permit States to obtain
the data required under section 618 of the Act through sampling, to
avoid a duplication of effort in States that sample to obtain section
618 data. Several commenters suggested that complying with the
requirements in Sec. 303.724 would place a significant burden on
States and their data collection contractors. One commenter stated that
some States use electronic systems to collect and track part C data and
that these systems do not necessarily rely on EIS providers to submit
child counts to the lead agency, and thus, an EIS provider could not be
expected to certify child count data. The commenter recommended that
EIS provider certification only be required when applicable to a
State's procedures for reporting unduplicated and accurate child
counts.
Discussion: Collection of accurate, unduplicated data begins at the
EIS provider level. Therefore, requiring the lead agency to establish
procedures that must be implemented by EIS providers, including
certifications about the accuracy of the data and the dates by which
EIS providers must report that data to the lead agency, is reasonable
and necessary. The Department's position is that Sec. 303.724 is
consistent with the requirement in section 618 of the Act that allows
States to use sampling when collecting section 618
[[Page 60237]]
data because, pursuant to the OMB-approved information collection forms
for section 618 State-reported data, States are required to ensure
collection of accurate data when they use sampling and have a plan
approved by the Department prior to collecting data through sampling.
We agree with commenters that in some States with electronic
systems for collecting and maintaining data, the State lead agency does
not use EIS providers to collect State child count data. However, in
those States where EIS providers still play a key role in collecting
State child count data, it is appropriate for each EIS provider to
certify that the data it reports to the lead agency are unduplicated
and accurate. Therefore, we have revised Sec. 303.724 to only require
that, as one of the commenters suggested, the EIS provider certify the
accuracy and nonduplication of data that the EIS provider is required
to collect and report to the lead agency.
Changes: We have added to the lead-in to Sec. 303.724 the
following language ``conduct its own child count or use EIS providers
to complete its child count. If the lead agency uses EIS providers to
complete its child count, then the lead agency must:''
Allocation of Funds
Payments to Indians (Sec. 303.731)
Comment: One commenter requested that the Department clarify how
the 1.25 percent amount in Sec. 303.731, regarding part C funds
provided by the Department to the Secretary of the Interior, is
calculated or from where this percent is derived. The commenter
suggested that the funding for tribes should be determined by the same
funding formula that is used for States.
A few commenters suggested revising this section to require tribes
and States to continue to collaborate and coordinate services and also
to describe the role of the Secretary of the Interior related to the
funding of all tribes that wish to participate as partners in the part
C program. The commenters further recommended adding a non-supplanting
clause to this section. One commenter recommended that the title of
this section be revised to read: ``Payments to Indian Tribes, Tribal
Organizations, or Consortia'' because the current heading is misleading
and may be offensive to some.
Discussion: Section 303.731(a) provides that the Secretary will
make payments to the Secretary of the Interior in the amount of 1.25
percent of the aggregate amount available to all States under part C of
the Act so that the Secretary of the Interior can distribute funds to
tribes, tribal organizations, and consortia to coordinate assistance in
providing early intervention services by States to infants and toddlers
with disabilities and their families on reservations served by
elementary and secondary schools operated or funded by the Secretary of
the Interior. The 1.25 percent payment by the Department of Education
to the Secretary of the Interior is required by section 643(b)(1) of
the Act, which provides that this percentage be taken from the
aggregate amount of part C funds available to all States.
Section 643(b)(1) of the Act and Sec. 303.731(a)(1) clearly state
that funds provided under this section are to be used 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 schools and secondary
schools for Indian children operated or funded by the Department of the
Interior. Under section 634(1), the lead agency is responsible for
ensuring that early intervention services are available to all infants
and toddlers with disabilities and their families, including Indian
infants and toddlers residing on a reservation geographically located
in the State. Under section 643(b)(4), Indian tribes, tribal
organizations, and consortia that receive funds from the Secretary of
the Interior must coordinate with the State, through the lead agency
responsible for providing early intervention services under part C of
the Act in that State. This coordination is to ensure that eligible
Indian infants and toddlers with disabilities under the age of three in
the State are identified, evaluated, and provided early intervention
services. Including a requirement for additional coordination may be
unnecessarily restrictive as States, through their lead agencies, and
Indian tribes, tribal organizations, and consortia currently use a
variety of mechanisms through their child find efforts, interagency
agreements, and other methods to meet their respective responsibilities
under part C of the Act.
It is not appropriate to add a nonsupplanting clause to this
section because there is no statutory provision that requires Indian
tribes, tribal organizations, and consortia to meet a nonsupplanting
requirement. Rather, it is the State, under section 637(b)(5)(B) of the
Act that must ensure that Federal funds made available under section
643 of the Act will be used to supplement not supplant the levels of
State and local funds expended for infants and toddlers with
disabilities and their families.
The U.S. Department of Interior performs two roles under section
643 of the Act. First, section 643(b) of the Act requires the Secretary
of the Interior to distribute the entirety of part C funds received
from the Secretary of Education to tribes, tribal organizations, or
consortia of those entities for the coordination of assistance and
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. Second, the Secretary of the
Interior, in accordance with section 643(b)(5) of the Act, must submit
to the Secretary of Education on a biennial basis a report that
includes a summary of the information that tribes, tribal
organizations, or consortia that receive part C funds must submit to
the Secretary of the Interior under this section.
Finally, in order to avoid confusion and to ensure consistency
between the language in the Act and the language in the regulations, we
have maintained the heading of this regulatory section to be the same
as the corresponding section in the Act (the heading ``Payments to
Indians'' is taken directly from the Act).
Changes: None.
Comment: None.
Discussion: To be consistent with section 643(b)(1) of the Act, we
have deleted the words ``after the Secretary determines the amount of
payments to be made to the jurisdictions under Sec. 303.730(a)'' from
Sec. 303.731(a)(3).
Changes: We have deleted the words ``after the Secretary determines
the amount of payments to be made to the jurisdictions under Sec.
303.730(a)'' from Sec. 303.731(a)(3).
State Allotments (Sec. 303.732)
Comment: One commenter stated that the Federal part C funding
formula is not sound and should be modified. Several commenters
recommended revising Sec. 303.732, regarding State allotments of funds
available under part C of the Act, to give States at least 120 days
notice of their actual allocation for the next fiscal year. One
commenter recommended defining the phrase ``ratably reduce'' as used in
paragraph (c) of this section. Another commenter requested that the
Department define the phrase ``most recent satisfactory data'' as used
in paragraph (d)(2) of this section.
Discussion: Section 643 of the Act sets forth the statutory funding
formula for distributing part C funds to States and the formula in
Sec. 303.732 is taken directly from section 643(c) of the Act.
[[Page 60238]]
This formula requires data on the number of children under the age of
three in each State. The phrase ``ratably reduce'' in section 643(c)(3)
of the Act, and reflected in Sec. 303.732(c)(1), has the plain meaning
that any reduction in the appropriation for part C of the Act will be
proportionately reflected in the allotment for each State. Further
clarification is not necessary.
Additionally, it is not necessary to define ``most recent
satisfactory data'' because this phrase also has a plain meaning--that
is, it refers to the most recent population data on the number of
infants and toddlers in States that are available to the Department at
the time the Department calculates State allocations under part C of
the Act. For the purpose of these allocations, the Department uses the
most recent data provided by the United States Bureau of the Census
(U.S. Census Bureau) as the ``most recent satisfactory data.''
It is the Department's position that the regulations should not
require the Secretary to inform States of their allocations 120 days
prior to making the funds available to the States because the
Department believes that the final allocations should be based on the
most recent U.S. Census Bureau data available at the time the
Department issues part C grants, and that data could, in some years,
result in changes in the estimated allocations within 120 days of
making awards.
Changes: None.
Comment: None.
Discussion: To be consistent with section 643(c)(1) of the Act, we
have added the words ``and any amount to be reserved for State
incentive grants under Sec. 303.734'' to Sec. 303.732(d)(1).
Changes: We have added ``and any amount to be reserved for State
incentive grants under Sec. 303.734'' to Sec. 303.732(d)(1).
Reservation for State Incentive Grants (Sec. 303.734)
Comment: A few commenters supported Sec. 303.734(a), which
requires the Secretary to reserve 15 percent of the appropriated amount
exceeding $460,000,000 to make available State incentive grants to
States that implement the option to continue to provide early
intervention services to children age three and older. However, many
commenters objected to the set-aside for States that are carrying out a
policy under section 635(c) of the Act stating that the overall funding
levels for the part C program are inadequate to serve the current
population of children ages birth to age three, let alone the
population of children age three and older. Another commenter expressed
concern that this set-aside provision takes away funds from States that
do not adopt a policy under section 635(a) of the Act. Other commenters
requested that Sec. 303.734(a) not be implemented until the part C
program is fully funded.
Discussion: Consistent with section 643 of the Act and under the
provisions in Sec. 303.734, the Secretary is required, in any fiscal
year that the appropriation exceeds $460,000,000, to reserve 15 percent
of the appropriated amount exceeding $460,000,000 to make available
State incentive grants (SIG) to States that choose the option to make
services available to children ages three and older under Sec.
303.211. We do not agree that the provisions in Sec. 303.734 take
funds away from States that do not adopt a policy under section 635(a)
of the Act and Sec. 303.211. Any State has the option to make IDEA
part C services available to eligible children with disabilities ages
three and older under Sec. 303.211. States have the option under Sec.
303.211 to make IDEA part C services available to eligible children
with disabilities beyond age three regardless of whether funds are
available and granted under section 643(e) of the Act and Sec.
303.734. However, the State incentive grant funds available and granted
undersection 643(e) of the Act and Sec. 303.734 must be used to
facilitate the implementation of the provisions in Sec. 303.211.
Changes: None.
Comment: One commenter recommended that Sec. 303.734(a) be revised
to clarify that a State is eligible to receive part C funds under this
section even if the State elects to make part C services available only
to a subset of children from the age of three to when the child enters,
or is eligible under State law to enter, kindergarten or elementary
school in the State, instead of children throughout the entire age
range. Another commenter recommended defining the method the Department
will use to distribute funds under Sec. 303.734(a).
Discussion: We agree that Sec. 303.734(a) should clarify that a
State that elects to make part C services available to a subset of
children specified in Sec. 303.211(a)(2) is eligible for any part C
funds that are available under section 643(e) of the Act, and we have
made this change. With regard to clarifying the method of distributing
funds under this section, section 643(e) of the Act provides that for
any fiscal year for which the amount appropriated under section 644 of
the Act exceeds $460,000,000, the Secretary shall reserve 15 percent of
such appropriated amount to provide grants to States that elect, under
section 635(c) of the Act, to serve children beyond age three. In FY
2009, the appropriation exceeded $460,000,000 due to the enactment of
ARRA and the Department reserved funding for SIG grants under section
643(c) of the Act. The Department received applications from, and made
SIG grants to, two States that submitted policies under section 635(c)
of the Act to serve children beyond age three and four. No States
applied to implement section 635(c) of the Act in FY 2005 through FY
2008 or FY 2010, which the Department believes can be explained by the
lack of funding in those years for the SIG grants.
Changes: We have added language to Sec. 303.734(a) to clarify that
a State that makes part C services available according to a subset of
children specified in Sec. 303.211(a)(2) would be eligible for any
funds available pursuant to section 643(e) of the Act.
Executive Order 12866
Regulatory Impact Analysis
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action. The potential costs associated
with these final regulations are those resulting from statutory
requirements and those we have determined to be necessary for
administering this program effectively and efficiently.
The Department has also reviewed these regulations pursuant to
Executive Order 13563, published on January 21, 2011 (76 FR 3821).
Executive Order 13563 is supplemental to and explicitly reaffirms the
principles, structures, and definitions governing regulatory review
established in Executive Order 12866. To the extent permitted by law,
agencies are required by Executive Order 13563 to: (1) Propose or adopt
regulations only upon a reasoned determination that their benefits
justify their costs (recognizing that some benefits and costs are
difficult to quantify); (2) tailor their regulations to impose the
least burden on society, consistent with obtaining regulatory
objectives, taking into account, among other things, and to the extent
practicable, the costs of cumulative regulations; (3) select, in
choosing among alternative regulatory approaches, those approaches that
maximize net benefits (including potential economic, environmental,
public health and safety, and other advantages; distributive impacts;
and equity); (4) the extent feasible, specify performance objectives,
rather than specifying the behavior or manner of compliance that
regulated entities must adopt; and (5) identify and assess available
alternatives to direct
[[Page 60239]]
regulation, including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or providing
information upon which choices can be made by the public.
We emphasize as well that Executive Order 13563 requires agencies
``to use the best available techniques to quantify anticipated present
and future benefits and costs as accurately as possible.'' In its
February 2, 2011, memorandum (M-11-10) on Executive Order 13563,
improving regulation and regulatory review, the Office of Information
and Regulatory Affairs has emphasized that such techniques may include
``identifying changing future compliance costs that might result from
technological innovation or anticipated behavioral changes.''
We are issuing these regulations only upon a reasoned determination
that their benefits justify their costs and we selected, in choosing
among alternative regulatory approaches, those approaches that maximize
net benefits. Based on the analysis below, the Department believes that
these final regulations are consistent with the principles in Executive
Order 13563.
We also have determined that this regulatory action would not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Potential Costs and Benefits
This analysis does not attempt to cover every change in the
regulations implementing part C of the Act governing the Early
Intervention Program for Infants and Toddlers with Disabilities. We
have included an analysis of the costs and benefits of the most
significant changes. In conducting this analysis, the Department
examined the extent to which changes made by these regulations add to
or reduce the costs for State lead agencies and others, as compared to
the costs of implementing the part C program under the previously
existing regulations. Based on the following analysis, the Secretary
has concluded that the changes reflected in the final regulations will
not impose significant costs on the States.
Section 303.211--State Option To Make Part C Services Available to
Children Ages Three and Older
Section 303.211 incorporates the provisions of section 635(c) of
the Act, which allow States to continue to serve children with
disabilities ages three through five under part C of the Act if those
children previously received services under part C of the Act and are
eligible for services under section 619 of part B of the Act. Offering
services under part C of the Act is a State option. In addition, Sec.
303.211(a)(2) clarifies that a State may choose to serve a subset of
this age range.
In the NPRM, we requested comments from the public on initial costs
related to establishing or enhancing the infrastructure of the part C
lead agencies necessary to serve children ages three through five;
differences in the costs of providing the services required by the Act
to children with disabilities ages three through five years old 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 two; the
extent to which States may choose to exercise the option of serving
children with disabilities ages three through five years old under part
C of the Act; and possible sources of funding for providing part C
services to these children. However, we did not receive comments on
possible costs related to these changes.
If a State elects to exercise the option to serve three through
five year olds under part C of the Act, the lead agency is responsible
for the costs of providing the direct part C services to children whose
families elect to continue services under part C. In addition, 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 three
through five year olds would be different from those that are
appropriate for children ages birth through two, and the program would
need to include an educational component, which is not required for
preschool children being served under part B of the Act. 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. On the other hand, part C of the Act provides for
establishment of a system of payments, which might reduce the cost to
the State of providing services to children ages three through five
served under part C of the Act.
The SEA is the lead agency in 14 of the 56 State agencies. In these
States, extending the age range of children served by the part C
program would primarily involve a shifting of costs among programs
within the same agency. The State may incur some transition costs
related to training and administration. However, these costs would not
be significant.
If a State elects to provide services under part C to children ages
three through five, and the lead agency is not the SEA, the SEA and
LEAs in that State would experience savings because they would be
responsible for providing services under part B of the Act to fewer
children ages three through five, but this is not likely to result in
overall savings for the State because the lead agency would incur
higher costs, and the SEA and LEAs would still be required to maintain
their Section 619 preschool programs to serve children with
disabilities ages three through five years old who are not served under
this option because parents have the right to choose between part C or
part B services.
If a State elects to make part C services available to children
ages three and older, Sec. 303.209(f)(2) requires the State to make
the annual notice required under Sec. 303.211(b)(1) available to
parents at the transition conference when the parent is presented with
the initial option for the child to receive services under Sec.
303.211 or under section 619 of the Act. Although this requirement adds
to the cost of implementing the State option, we estimate that the
costs would be insignificant, even if all States elected to exercise
the option and proposed to make services available to children until
their 5th birthday.
Based on the experience of the two States that have already opted
to make part C services available to children three and older, we
estimate that the annual notice would be approximately five pages long.
We further estimate that it would cost approximately $.25 to photocopy
a single notice and that approximately 220,000 notices would be needed,
based on the number of three and four year old children we would expect
to be eligible to continue to receive services under part C, for an
annual cost of $55,000. This estimate would represent a lower-bound
insofar as it assumes the notice would be limited to addressing the
specific requirements of the Act and these regulations. In order to
ensure that all families of eligible children are aware of the
potential benefits of continuing to receive services under the part C
programs, States may opt to develop brochures and other materials to
publicize this option. For example, the two States that received State
incentive grants in FY 2009 each requested approximately $30,000 to
support the development and printing of brochures about the part C
option. If all States
[[Page 60240]]
opted to extend part C services to eligible children beyond their third
birthday and developed and printed similar materials, we estimate that
States could spend as much as $1.6 million to provide information on
the part C option to eligible children.
Sections 303.301 Through 303.320--Public Awareness, Comprehensive Child
Find System, Referrals, and Screening
Sections 303.301 and 303.302 combine the child find and public
awareness requirements from section 635(a)(5) and (a)(6) of the Act and
reflect 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.
Section 303.302 requires 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. Section 303.303 requires the State
to have referral procedures to be used by specified primary referral
sources and requires such procedures to provide for the referral of
certain children covered by CAPTA. Section 303.303(b) clarifies that
referral of children covered by CAPTA is limited to children under the
age of three who are the subject of a substantiated case of child abuse
or neglect or who are identified as directly affected by illegal
substance abuse or withdrawal symptoms resulting from prenatal drug
exposure. This change is consistent with the CAPTA provision in 43
U.S.C. 5106a(b)(2)(A)(xxi) that became effective in June 2003, which
requires States receiving CAPTA funds to adopt policies providing for
children under the age of three who are involved in a substantiated
case of child abuse or neglect to be referred to the part C program.
Section 303.301 also provides that, under a State's public awareness
program, the lead agency must prepare information on the availability
of early intervention services and disseminate such information to all
primary referral sources so that these sources may give the information
to parents of infants and toddlers, especially 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 part C 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 requirements relating to children covered
by CAPTA and those who are homeless, in foster care, or wards of the
State.
In addition, Sec. 303.320 allows the lead agency to adopt
procedures for 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. As discussed previously in the Analysis of Comments and
Changes, some commenters suggested that Sec. 303.320(a)(3), which
allows a parent to request an evaluation even after the lead agency
determines--using its screening procedures--that the child is not
suspected of having a disability, would diminish the cost-effectiveness
of screening. However, we believe that parents are in a unique position
to observe their child's development and may notice things which
suggest a developmental delay or disability that could be missed by a
screening. For this reason, it is the Department's position that this
parental right to request an evaluation--along with other regulations
in this part--provide for a rigorous child find system, which ensures
that infants and toddlers with disabilities will receive the early
intervention services they need. This is cost-effective because
providing these services may reduce the need for special education and
related services for these children when they reach school age.
Section 303.344(e)--Content of an IFSP
The current regulations in Sec. 303.344(e) require the IFSP to
include, to the extent appropriate, 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. Section 303.344(e) of the final regulations retains
the requirement for the IFSP Team to identify in the IFSP, to the
extent appropriate, medical and other services that the child or family
needs or is receiving, but that are not required by part C of the Act,
and, if those services are not currently being provided, the steps that
will be taken to assist the family in securing those services through
public or private sources. However, the IFSP Teams are no longer
required to identify 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 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 IFSP Teams may have
limited knowledge about funding for these services.
The service coordinator typically would be responsible for
obtaining this information. 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 it could take several hours or more to identify 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 funding for
services not required by IDEA and describing this information in the
IFSP. Based on employee compensation costs for health care and social
assistance personnel calculated by the Bureau of Labor Statistics
(BLS),\2\ we estimate average compensation for service coordinators to
be approximately $34.99 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 two 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
352,000 children under part C of the Act in fiscal year 2011. Based on
these estimates, we estimate that savings from this change could be as
much as $24.6 million.
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\2\ U.S. Department of Labor, Bureau of Labor Statistics, Table
4, State and local government, by occupational and industry group,
last modified September 8, 2010, http://www.bls.gov/news.release/ecec.t04.htm.
---------------------------------------------------------------------------
Since the BLS health care and social assistance personnel category
is broad and may overestimate salaries for service coordinators, we
also examined available data on wages and salaries for early
intervention specialists employed by non-profit organizations, school
districts, private companies, State and
[[Page 60241]]
local governments, and colleges and universities to derive a lower-
bound estimate for these savings based on an hourly wage of $14.60.\3\
Using the BLS estimate of fringe benefit costs for health care and
social assistance personnel of $12.67 per hour, the lower-bound
estimate of the savings from this change would be $19.2 million per
year.
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\3\ Estimate based on an analysis of early intervention
specialist salaries conducted by the PayScale Corporation and
updated on November 12, 2010 (http://www.payscale.com/research/US/Job=Early_Intervention_Specialist/Salary).
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Section 303.409(c)--Fees for Records
Section 303.409(c) requires the lead agency to provide parents with
a copy of each evaluation, assessment, and IFSP pertaining to their
child at no cost to the parents as soon as possible after the IFSP
meeting. We do not anticipate that requiring States to provide a copy
of evaluations, assessments, and IFSPs to parents, from the child's
early intervention record, would result in a significant cost burden to
States. Assuming that these documents, in total, would average no more
than 100 pages, the cost of providing a copy to parents for the
estimated 352,000 children served under the part C program in 2011
would be $3.8 million, at a cost of $0.05 per photocopied page and no
more than 10 minutes of a service coordinator's time using the previous
compensation estimate of $34.99 per hour. As a standard practice, most
States already provide these documents at no cost to parents, so the
effective cost of this change would be minimal.
Section 303.436(b)--Parental Rights in Due Process Hearing Proceedings
Section 303.436(b)(4) and (b)(5) has been changed to specify that a
parent involved in a due process hearing has the right to receive a
written or electronic verbatim transcription of the hearing and a copy
of the written findings of fact and decisions at no cost to the parent.
The cost impact of this requirement is likely to be minimal because
there are very few due process hearings under the part C program.
According to APR data submitted by States for FY 2008 (2008-09
reporting period), only 18 due process hearings were held during this
period. If a typical due process hearing lasts no more than 16 hours
and an hour of testimony results in roughly 40 pages of printed text,
the cost to a State of providing an additional copy of the hearing
transcript at $0.50 per page would be $320.00. Assuming that there
could be as many as 20 due process hearings, the annual cost of this
requirement would be no more than $6,400.
Section 303.520(a)--Policies Related to the Use of Public Benefits or
Insurance To Pay for Part C Services
This section addresses the use of public benefits or insurance to
pay for part C services, which is not addressed in the current
regulations. Section 303.520(a) establishes three new requirements that
are designed to provide important protections for parents of infants
and toddlers with disabilities balanced against the need for States to
have access to public benefits and public insurance to finance part C
services while implementing the system of payments, coordination of
funding sources, and payor of last resort requirements under sections
632(4), 635(a)(10)(B) and 640 of the Act.
Section 303.520(a)(2)(i) prohibits a State from requiring a parent
to enroll in a public benefits or insurance program as a condition of
receiving part C services. Under this section, a State may seek to
enroll a parent in a public benefits or insurance program, but a parent
can decline to enroll without affecting any right to receive part C
services. The purpose of this provision is to protect the parent's
right to confidentiality of personally identifiable information (where
the lead agency is the same State agency that administers the public
benefits or insurance program, such as Medicaid) and to protect the
parents from incurring costs involuntarily. We expect this
clarification to affect a limited number of States as the majority of
States with systems of payments on file with the Department in FFY 2009
that address the use of public benefits or insurance to pay for part C
services do not require families to enroll in those programs in order
to receive part C services. Moreover, we believe that most parents will
agree to enroll their infants and toddlers in programs like Medicaid
voluntarily since it is generally to the family's advantage to obtain
health insurance for all family members to pay for general medical
care, including well baby visits and routine immunizations.
However, the few States that currently require parents to enroll in
public benefits or insurance programs in order to receive part C
services could potentially lose revenue if eligible parents decline to
enroll in these programs. However, this potential loss of public
benefits or insurance funds is outweighed by the benefits of protecting
the privacy and autonomy of parents (including minimizing any potential
negative financial impact that use of public benefits or insurance may
have on parents). Moreover, the loss of public benefits or insurance
does not increase the cost of early intervention services; it shifts
the cost of those services to another revenue source.
Section 303.520(a)(2)(ii) requires the State to obtain consent to
use a child's or parent's public benefits or insurance to pay for part
C services if such use would have a cost impact on the family,
specifically if that use would decrease available lifetime coverage or
any other insured benefit of the child or parent, result in the parents
paying for services that would otherwise be covered by the program,
result in any increase in premiums or discontinuation of benefits or
insurance, or risk loss of eligibility for the child or parents for
home and community-based waivers based on aggregate health-related
expenditures.
We would expect that there would be few instances in which parental
consent would be required under this provision because Medicaid is the
primary source of public insurance for part C services and Medicaid
generally does not have limitations on lifetime coverage, pose any risk
of increased premiums, or present any risk of loss of eligibility or
discontinuation of benefits or insurance that would trigger the consent
requirement. However, in those instances where there was a risk of
increased premiums or out-of-pocket costs, States may create incentives
for parents to provide consent by ensuring that the State's system of
payments ensures that no out-of-pocket costs (including premium costs)
are incurred by those parents eligible for Medicaid (currently 133% of
the Federal poverty level).
Finally, Sec. 303.520(a)(1) permits the State to access a child's
or parent's public benefits or insurance if the State provides written
notification to the child's parents and so long as the parent would not
incur the specified costs identified above as a result of the use of
those benefits, unless the parent had provided consent to use of such
benefits for those services.
Section 303.520(a)(3) specifies that this written notification must
include: (1) A statement that parental consent must be obtained under
Sec. 303.414 (where applicable) before the public agency discloses,
for billing purposes, their child's personally identifiable information
to the agency responsible for the administration of the State's public
benefits or insurance program; (2) a statement of the no cost
provisions in new Sec. 303.520(a)(2) and that if the parent does not
provide the consent under Sec. 303.520(a)(2), the State lead agency
must still make available those part C services in the IFSP for which
the
[[Page 60242]]
parent has provided consent; (3) a statement that the parents have the
right under Sec. 303.414, if that provision applies, to withdraw their
consent to disclosure of personally identifiable information to the
State public agency responsible for the administration of the State's
public benefits or insurance program at any time; and (4) a statement
of the general categories of costs that the parent could incur as a
result of participating in a public benefits or insurance program (such
as co-payments or deductibles, or the required use of private insurance
as the primary insurance).
Although the specific format and content may vary by State, we
estimate that it would take no more than 10 hours per State to draft a
written notice that complied with these requirements and that the
notice would not exceed 4 pages in length.
According to the National Compensation Survey from the Bureau of
Labor Statistics, the median hourly wage for lawyers employed full-time
in State or local government is $38.46.\4\ With benefit costs of
approximately 35 percent, we estimate that the cost per State of
drafting and translating this notice into other languages, if
applicable, would be no more than $520, for a national cost of $29,120.
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\4\ http://www.bls.gov/ncs/ocs/sp/nctb1479.pdf.
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We also expect that providing this notification to parents will not
have a significant cost impact because the timing of the written
notification is left to the discretion of the State lead agency. In
many instances, States would have an opportunity to provide this
notification, either by mail or in person, in conjunction with the
prior written notice already required under Sec. 303.421 or other
required documentation (such as a copy of the IFSP) or at the IFSP
meeting or periodic review and would incur only the additional cost of
photocopying the notification.
The National Early Intervention Longitudinal Study (NEILS)
collected data on a representative sample of 3,338 children who entered
the part C program for the first time between September 1997 and
November 1998 and at various points until the children entered
Kindergarten. These data indicate that 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 Children's Health Insurance Program (CHIP).\5\ Although we do
not have the benefit of more recent data, we assume that the percentage
of part C families enrolled in public benefits or insurance programs
has remained fairly constant and that approximately 155,000 of the
353,028 infants and toddlers served under part C in the fall of 2009
are in families that also participate in public benefits or insurance
programs. For the reasons already described, we assume for this
analysis that virtually all of the families participating in a public
benefits or insurance program would be covered by the notification
requirements and not the consent requirements that apply if use of the
parent's insurance is expected to result in certain specified costs.
---------------------------------------------------------------------------
\5\ Unpublished analysis of NEILS data by SRI, International,
for the U.S. Department of Education. Additional information on the
NEILS, including access to a public use dataset, is available on the
study Web site (http://www.sri.com/neils).
---------------------------------------------------------------------------
We estimate that the cost of producing this notification for the
estimated 155,000 infants and toddlers who participate in both the part
C program and a public benefits or insurance program would be at most
$341,000 per year for all States, if each 4-page notice cost 20 cents
to photocopy and required 5 minutes of administrative personnel
time.\6\
---------------------------------------------------------------------------
\6\ Calculated using the median hourly wage for secretaries and
administrative assistants employed full-time by State or local
governments of $17.75 (http://www.bls.gov/ncs/ocs/sp/nctb1479.pdf)
with benefit costs of 35 percent.
---------------------------------------------------------------------------
In some instances, States would be unable to provide this written
notification at the initial or other IFSP meeting in person during a
service visit, or in conjunction with other mailings, and may need to
provide written notification by mail separately. Assuming that sending
written notification by mail is required for one quarter of the
eligible infants and toddlers and would require 44 cents in postage and
10 cents for an envelope, the additional cost of mailing these
notifications would be an estimated $20,925 annually.
We believe that the potential cost to States of implementing this
required notification is very minor and would be offset by the benefits
of ensuring that parents are aware that their child's personally
identifiable information will be disclosed to the State agency
responsible for the State's public benefits or insurance program, that
this disclosure and billing cannot result in specified costs to them,
that they have the right under Sec. 303.414 (where applicable) to
withdraw consent for this disclosure at any time, and that refusal to
provide consent or withdrawal of this consent will not jeopardize their
child's access to services under the part C program.
Section 303.520(b)--Policies Related to Use of Private Insurance To Pay
for Part C Services
Under Sec. 303.520(b), a State may not access a parent's private
insurance to pay for part C services unless the parent provides consent
to do so, except in States that have enacted legislation that provides
certain no-cost protections. Overall, we do not believe the final
regulations will have a significant effect on States because private
insurance funds represent a more limited proportion of States' part C
budgets than funds from public benefits or insurance programs. Twenty-
six States reported in either their FFY 2001 or 2002 part C APRs that
they used funds from private insurance and/or family fees to pay for
part C services.\7\ For 21 of these 26 jurisdictions, the average
percentage of the State's overall part C budget that represented funds
from private insurance and/or family fees was 4.9 percent. Notably,
those few States for which private insurance represents a relatively
larger share of their budget (i.e., more than 10 percent) are States
that would not be subject to the general consent requirement because
they have enacted State statutes providing the requisite protections.
That is, as required by Sec. 303.520(b), the State legislation ensures
that the use of private health insurance to pay for part C services
would not: (1) Count towards or result in a loss of benefits due to the
annual or lifetime health insurance coverage caps for the infant or
toddler with a disability or family, (2) negatively affect 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 private insurance premiums for the child or
family. In States without these statutes, it is unlikely that these
States are accessing private insurance to any significant extent
without parental consent.
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\7\ The 2002 Part C APR was the last APR in which State lead
agencies were required to report data on funding sources.
---------------------------------------------------------------------------
Part C services must be provided free of charge unless the State
has established a system of payments. States wishing to use a parent's
or child's private insurance funds to pay for part C services should
have already included this option in a system of payments, especially
in cases where the use of private insurance involves co-payments and
deductibles. Even in cases where the State might be willing to cover
the up-front costs (e.g., the co-payment) in order to obtain parental
consent to use private insurance, the State could not
[[Page 60243]]
have done so without access to personally identifiable information that
could not be obtained without consent. As such, the requirement to
obtain parental consent to use private insurance is not a change in
practice. Any potential loss of revenue to States from not being able
to access private insurance because parents will not provide consent
would be offset by the benefits of protecting the autonomy of the
family and the benefits of ensuring that they are not unknowingly
incurring costs.
Section 303.521(c)--States With FAPE Mandates or That Use Part B Funds
To Provide Services to Infants and Toddlers With Disabilities
This provision incorporates long-standing policy and requirements
under part B of the Act that, if a State is required under State law to
provide FAPE for, or uses funds under part B 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
under part C of the Act, but under State law mandates FAPE for a
particular subgroup of children under the age of three (either by age
and/or 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 Sec. 303.521(c) clarifies current requirements and
practice, this change is not expected to result in any change in costs
for State agencies, early intervention service providers, or families.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 does not require you to respond
to a collection of information unless it displays a valid OMB control
number. We display the valid OMB control numbers assigned to the
collections of information in these final regulations at the end of
each of the affected sections of the regulations.
These final regulations include the following five information
collection requirements associated with the following provisions:
Sec. Sec. 303.101, 303.111 through 303.126, 303.200 through 303.227,
303.301, 303.430, 303.431(a)(2)(i), 303.432 through 303.434,
303.440(b), 303.443(c)(3), 303.520(a), 303.701, 303.702, and 303.720
through 303.724.
A description of these provisions 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.
Collection of information: IDEA part C State Performance Plan (SPP)
and Annual Performance Report (APR), (Information Collection 1820-
0578). Affected regulation sections for this information collection are
Sec. Sec. 303.124, 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.
Annual reporting and recordkeeping burden for this collection of
information is estimated to be 180 hours annually for maintaining the
SPP and 1800 hours completing the APR, for each of 56 respondents. The
total annual burden to States for maintaining the SPP is estimated to
be 10,080 hours. Of the total 180 hours, it is estimated that 100 hours
will be spent planning the report, 50 hours will be spent writing the
report, and 30 hours will be spent typing and compiling the report. Of
the estimated 1800 hours for completing the APR, it is estimated that
1720 hours will be spent planning (i.e., setting up data collection
processes, reporting data, cleaning and analyzing the data, etc.) the
report, 40 hours will be spent writing the report, and 40 hours will be
spent typing and compiling the report. The total annual burden to
States for completing the APR is estimated to be 100,800. 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 two 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) Affected regulation sections for
this information collection are Sec. Sec. 303.101, 303.111 through
303.126, and 303.200 through 303.227. Under Sec. 303.101, States are
required to submit in the grant application new and/or revised State
policies, procedures, methods, certifications, and descriptions that
are described in Sec. Sec. 303.201 through 303.212 of subpart C of
these regulations and assurances for the application requirements in
Sec. Sec. 303.111 through 303.126 and 303.221 through 303.227.
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. Thus, the annual total burden estimate for this
information collection is 560 hours. No changes are expected to the
version of Information Collection 1820-0550 that is approved by OMB
through December 31, 2010.
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: (Information Collection 1820-0557) Affected
regulation sections for this information collection are 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 107 hours per State agency or
5,987 hours total.
Collection of Information: Report of Dispute Resolution Under part
C of the Individuals With Disabilities Education Act Complaints,
Mediations, and Due Process Hearings (Information Collection 1820-0678)
The affected regulation section for this information collection is
Sec. 303.430. Under sections 616(a)(3)(B), 618(a)(1)(F), (a)(1)(H),
and (a)(3), 639(a)(1), and 642 of the Act, the Secretary requires
States to report data on the dispute resolution procedures the State is
required to maintain under Sec. 303.430. Each State must report the
number of due process complaints, number of due process hearings
conducted and the number of mediations held and the number of
settlement agreements reached through such mediations. Additionally, if
the State has adopted under Sec. 303.430(d)(2) the part B due process
hearing procedures, the State must report on the number of dispute
resolution sessions and the number of settlement
[[Page 60244]]
agreements reached through such resolution sessions. 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: State and EIS Record Keeping,
Notification, Reporting, and Third Party Disclosure Requirements under
part C (Information Collection 1820-0682). Affected regulation sections
for this information collection are Sec. Sec. 303.430(c) and (d)(2),
303.431(b)(2)(i), 303.432 through 303.434, 303.440(b), 303.443(c)(3),
and 303.520(a). 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.
Each State lead agency must have on file a list of mediators and
procedures to ensure the timely resolution of State complaints. There
are 56 State-level record keepers who must maintain a list of
mediators. It is estimated to take approximately three hours annually
for record keepers to update and maintain the lists, representing a
total burden of 168 hours. Each of the 56 State lead agencies process
on average three complaints annually. It takes approximately 24 hours
for a State lead agency to issue a written decision to a complaint,
representing a total burden of 4032 hours. If the State lead agency
adopts part B due process hearing procedures, then the lead agency must
also have on file a list of hearing officers and must provide parents
information on low-cost legal and other services under specific
circumstances. There are approximately 45 State due process complaints
annually, and the data burden is expected to require an average of 30
minutes per hearing request to inform parents of the availability of
low-cost legal services, representing a total burden of 22.5 hours.
Approximately 15 States have adopted part B due process procedures for
part C. It is estimated to take approximately three hours annually for
record keepers to update and maintain the lists, representing a total
burden of 45 hours. Additionally, each State lead agency must provide a
written notification to parents prior to accessing a child's or
parent's public benefits or insurance. For each State lead agency, it
takes an average of about 10 hours to draft the notice, representing a
total burden of 560 hours. As discussed in the supporting statement,
other requirements identified in the NPRM as potential information
collections, were not specific collections but rather affirmative
responsibilities of lead agencies and EIS providers regarding fiscal
and programmatic requirements.
The estimated average burden is 86 hours per lead agency. Annual
reporting, notification, and recordkeeping burden for this collection
of information is estimated to be approximately 4827.5 hours for 56
respondents (State lead agencies).
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR part 79. The objective 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.
In accordance with this order, we intend this document to provide
early notification of the Department's specific plans and actions for
this program.
Assessment of Educational Impact
In the NPRM published in the Federal Register on May 9, 2007, and
in accordance with section 441 of the General Education Provisions Act,
20 U.S.C. 1221e-4, we requested 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.
Based on the response to the NPRM and on our own review, we have
determined that these final regulations do not 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 document published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register 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)
List of Subjects in 34 CFR Part 303
Education of individuals with disabilities, Grant programs--
education, Infants and toddlers, Reporting and recordkeeping
requirements.
Dated: August 31, 2011.
Arne Duncan,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary amends
title 34 of the Code of Federal Regulations by revising part 303 to
read 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 and applicability of this
part.
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.
303.27 Parent.
303.28 Parent training and information center.
303.29 Personally identifiable information.
[[Page 60245]]
303.30 Public agency.
303.31 Qualified personnel.
303.32 Scientifically based research.
303.33 Secretary.
303.34 Service coordination services (case management).
303.35 State.
303.36 State educational agency.
303.37 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 plan (IFSP).
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 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
General
303.300 General.
Pre-Referral Procedures--Public Awareness Program and Child Find System
303.301 Public awareness program--information for parents.
303.302 Comprehensive child find system.
Referral Procedures
303.303 Referral procedures.
303.304-303.309 [Reserved]
Post-Referral Procedures--Screenings, Evaluations, and Assessments
303.310 Post-referral timeline (45 days).
303.311-303.319 [Reserved]
303.320 Screening procedures (optional).
303.321 Evaluation of the child and assessment of the child and
family.
303.322 Determination that a child is not eligible.
Individualized Family Service Plan (IFSP)
303.340 Individualized family service plan--general.
303.341 [Reserved]
303.342 Procedures for IFSP development, review, and evaluation.
303.343 IFSP Team meeting and periodic review.
303.344 Content of an IFSP.
303.345 Interim IFSPs--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 of Personally Identifiable Information and Early
Intervention Records
303.401 Confidentiality and opportunity to examine records.
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 for Records.
303.410 Amendment of records at a 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 services.
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.
[[Page 60246]]
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.
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, payor of last resort and system of payments.
Use of Funds
303.501 Permissive use of funds by the lead agency.
Payor of Last Resort--General Provisions
303.510 Payor of last resort.
303.511 Methods to ensure the provision of, and financial
responsibility for, Part C services.
Payor of Last Resort & System of Payments Provisions--Use of Insurance,
Benefits, Systems of Payments, and Fees
303.520 Policies related to use of insurance to pay for Part C
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---State Monitoring and Enforcement; Federal Monitoring and
Enforcement; Reporting; and Allocation of Funds
Federal and State Monitoring 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.
Appendix A to Part 303--Index for IDEA Part C Regulations
Authority: 20 U.S.C. 1431 through 1444, 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), 1431(b))
Sec. 303.2 Eligible recipients of an award and applicability of this
part.
(a) 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.
(b) Applicability of this part.
(1) The provisions of this part apply to--
(i) The State lead agency and any EIS provider that is part of the
statewide system of early intervention, regardless of whether that EIS
provider receives funds under part C of the Act; and
(ii) All children referred to the part C program, including infants
and toddlers with disabilities consistent with the definitions in
Sec. Sec. 303.6 and 303.21, and their families.
(2) The provisions of this part do not apply to any child with a
disability receiving a free appropriate public education or FAPE under
34 CFR part 300.
(Authority: 20 U.S.C. 1401(31), 1434, 1435(a)(10)(A))
Sec. 303.3 Applicable regulations.
(a) The following regulations apply to this part:
(1) The regulations in this part 303.
(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--
(1) State educational agency means the lead agency under this part;
and
(2) Education records or records means early intervention records.
(Authority: 20 U.S.C. 1221(b), 1221e-3, 1431-1444)
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 or environmental factors
that can be identified (including low birth weight, respiratory
distress as a newborn, lack of oxygen, brain hemorrhage, infection,
nutritional deprivation, a history of abuse or neglect, and being
directly affected by illegal substance abuse or withdrawal symptoms
resulting from prenatal drug exposure).
(Authority: 20 U.S.C. 1432(1), 1432(5)(B)(i) and 1437(a)(6))
[[Page 60247]]
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, as defined in Sec. 303.25;
(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 form describes that activity and lists the early intervention
records (if any) that will be released and to whom they will be
released; and
(c)(1) The parent understands that the granting of consent is
voluntary on the part of the parent and may be revoked at any time.
(2) If a parent revokes consent, that revocation is not retroactive
(i.e., it does not apply to an action that 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))
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 individualized family
service plan (IFSP) Team's ongoing 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 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 the needs of the family to assist
appropriately in the infant's or toddler's development, as identified
by the IFSP 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 early intervention
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. Sec.
303.126 and 303.344(d); and
(9) Are provided in conformity with an IFSP 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 device and service 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 a cochlear implant, or the optimization (e.g.,
mapping), 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 include--
(i) Identification of children with auditory impairments, using at-
risk criteria and appropriate audiologic screening techniques;
(ii) Determination of the range, nature, and degree of hearing loss
and
[[Page 60248]]
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 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) Nursing services include--
(i) The assessment of health status for the purpose of providing
nursing care, including the identification of patterns of human
response to actual or potential health problems;
(ii) The provision of nursing care to prevent health problems,
restore or improve functioning, and promote optimal health and
development; and
(iii) The administration of medications, treatments, and regimens
prescribed by a licensed physician.
(7) Nutrition services include--
(i) Conducting individual assessments in--
(A) Nutritional history and dietary intake;
(B) Anthropometric, biochemical, and clinical variables;
(C) Feeding skills and feeding problems; and
(D) Food habits and food preferences;
(ii) Developing and monitoring appropriate plans to address the
nutritional needs of children eligible under this part, based on the
findings in paragraph (b)(7)(i) of this section; and
(iii) Making referrals to appropriate community resources to carry
out nutrition goals.
(8) Occupational therapy includes services to address the
functional needs of an infant or toddler with a disability 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.
(9) 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.
(10) Psychological services include--
(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.
(11) Service coordination services has the meaning given the term
in Sec. 303.34.
(12) Sign language and cued language services include teaching sign
language, cued language, and auditory/oral language, providing oral
transliteration services (such as amplification), and providing sign
and cued language interpretation.
(13) Social work services include--
(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.
(14) 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 IFSP 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.
(15) Speech-language pathology services include--
(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 communication
or language disorders and delays in development of communication
skills; and
(iii) Provision of services for the habilitation, rehabilitation,
or prevention of communication or language disorders and delays in
development of communication skills.
(16) Transportation and related costs include the cost of travel
and other costs that are necessary to enable an infant or
[[Page 60249]]
toddler with a disability and the child's family to receive early
intervention services.
(17) Vision services mean--
(i) Evaluation and assessment of visual functioning, including the
diagnosis and appraisal of specific visual disorders, delays, and
abilities that affect early childhood development;
(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, 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 in 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))
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, as used in Sec. Sec.
303.211, 303.501, and 303.521, 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 mean services necessary to enable an otherwise
eligible child to benefit from the other early intervention services
under this part during the time that the child is eligible to receive
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 a cochlear implant.
(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
in 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; and
(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 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 or 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.
303.321;
(b) Includes the content specified in Sec. 303.344;
(c) Is implemented as soon as possible once parental consent for
the early
[[Page 60250]]
intervention services in 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; sensory impairments; inborn errors of
metabolism; disorders reflecting disturbance of the development of the
nervous system; congenital infections; severe attachment disorders; and
disorders secondary to exposure to toxic substances, including fetal
alcohol syndrome.
(b) Infant or toddler with a disability 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 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 must include--
(1) An educational component that promotes school readiness and
incorporates pre-literacy, language, and numeracy skills for children
ages three and older who receive part C services pursuant to Sec.
303.211; and
(2) A written notification to parents of a child with a disability
who is eligible for services under section 619 of the Act and who
previously received services under this part of their rights and
responsibilities in determining whether their child will continue to
receive services under this 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 FAPE
on a regional basis; and
(iii) Provides special education and related services to children
with disabilities within the State.
(c) BIE-funded schools. The term includes an elementary school or
secondary school funded by the Bureau of Indian Education, and not
subject to the jurisdiction of any SEA other than the Bureau of Indian
Education, 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 means the involvement of two or more separate
disciplines or professions and with respect to--
(a) Evaluation of the child in Sec. Sec. 303.113 and
303.321(a)(1)(i) and assessments of the child and family in Sec.
303.321(a)(1)(ii), may include one individual who is qualified in more
than one discipline or profession; and
(b) The IFSP Team in Sec. 303.340 must include the involvement of
the parent and two or more individuals from separate disciplines or
professions and one of these individuals must be the service
coordinator (consistent with Sec. 303.343(a)(1)(iv)).
(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 or LEP (as that term is defined in section
602(18) of the Act), means--
(1) The language normally used by that individual, or, in the case
of a child, the language normally used by the parents of the child,
except as provided in paragraph (a)(2) of this section; and
(2) For evaluations and assessments conducted pursuant to Sec.
303.321(a)(5) and (a)(6), the language normally used by the child, if
determined developmentally appropriate for the child by qualified
personnel conducting the evaluation or assessment.
(b) Native language, when used with respect to an individual who is
deaf or hard of hearing, blind or visually impaired, or for an
individual with no written 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 typical for
a same-aged infant or toddler without a disability, may include the
home or
[[Page 60251]]
community settings, and must be consistent with the provisions of Sec.
303.126.
(Authority: 20 U.S.C. 1432, 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 educational or
early intervention service 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 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 if an EIS provider or a public agency provides
any services to a child or any family member of that child, that EIS
provider or public agency may not act as the parent for that child.
(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 information.
Personally identifiable information means personally identifiable
information as defined in 34 CFR 99.3, as amended, except that the term
``student'' in the definition of personally identifiable information in
34 CFR 99.3 means ``child'' as used in this part and any reference to
``school'' means ``EIS provider'' as used in this part.
(Authority: 20 U.S.C. 1415, 1439)
Sec. 303.30 Public agency.
As used in this part, public agency means the lead agency and any
other agency or political subdivision of the State.
(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 areas in which the individuals are
conducting evaluations or assessments or providing early intervention
services.
(Authority: 20 U.S.C. 1432(4)(F))
Sec. 303.32 Scientifically based research.
Scientifically based research has the meaning given the term in
section 9101(37) of the Elementary and Secondary Education Act of 1965,
as amended (ESEA). In applying the ESEA to the regulations under part C
of the Act, any reference to ``education activities and programs''
refers to ``early intervention services.''
(Authority: 20 U.S.C. 1435(a)(2))
Sec. 303.33 Secretary.
Secretary means the Secretary of Education.
(Authority: 20 U.S.C. 1401(28))
Sec. 303.34 Service coordination services (case management).
(a) General. (1) As used in this part, service coordination
services mean 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 services and rights, including procedural safeguards,
required under this part.
(2) Each infant or toddler with a disability and the child's family
must be provided with one service coordinator who is responsible for--
(i) Coordinating all services required under this part across
agency lines; and
(ii) Serving as the single point of contact for carrying out the
activities described in paragraphs (a)(3) and (b) of this section.
(3) Service coordination is an active, ongoing process that
involves--
(i) Assisting parents of infants and toddlers with disabilities in
gaining access to, and coordinating the provision of, the early
intervention services required under this part; and
(ii) Coordinating the other services identified in the IFSP under
Sec. 303.344(e) that are needed by, or are being provided to, the
infant or toddler with a disability and that child's family.
(b) Specific service coordination services. Service coordination
services include--
(1) Assisting parents of infants and toddlers with disabilities in
obtaining access to needed early intervention services and other
services identified in the IFSP, including making referrals to
providers for needed services and scheduling appointments for infants
and toddlers with disabilities and their families;
(2) Coordinating the provision of early intervention services and
other services (such as educational, social, and medical services that
are not provided for diagnostic or evaluative purposes) that the child
needs or is being provided;
(3) Coordinating evaluations and assessments;
(4) Facilitating and participating in the development, review, and
evaluation of IFSPs;
(5) Conducting referral and other activities to assist families in
identifying available EIS providers;
(6) Coordinating, facilitating, and monitoring the delivery of
services required under this part to ensure that the services are
provided in a timely manner;
(7) Conducting follow-up activities to determine that appropriate
part C services are being provided;
(8) Informing families of their rights and procedural safeguards,
as set forth in subpart E of this part and related resources;
(9) Coordinating the funding sources for services required under
this part; and
(10) Facilitating the development of a transition plan to
preschool, school, or, if appropriate, to other services.
(c) Use of the term service coordination or service coordination
services. 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
Title XIX of the Social Security Act--Medicaid), for purposes of claims
in compliance with the requirements of Sec. Sec. 303.501 through
303.521 (Payor of last resort provisions).
(Authority: 20 U.S.C. 1432(4), 1435(a)(4), 1436(d)(7), 1440)
[[Page 60252]]
Sec. 303.35 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 four
outlying areas and 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. 303.36 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. 303.37 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, as defined in Sec. 303.13, 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 policies and procedures that address, 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.
(c) Approval before implementation. The State must obtain approval
by the Secretary before implementing any policy or procedure required
to be submitted as part of the State's application in Sec. Sec.
303.203, 303.204, 303.206, 303.207, 303.208, 303.209, and 303.211.
(Approved by Office of Management and Budget under control number
1820-0550)
(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
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 a 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 Act 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
[[Page 60253]]
described in Sec. Sec. 303.111 through 303.126.
(Approved by Office of Management and Budget under control number
1820-0550)
(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. 303.21(a)(1),
the evaluation and assessment procedures, consistent with Sec.
303.321, 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).
(Approved by Office of Management and Budget under control number
1820-0550)
(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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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.
303.321.
(Approved by Office of Management and Budget under control number
1820-0550)
(Authority: 20 U.S.C. 1435(a)(3))
Sec. 303.114 Individualized family service plan (IFSP).
Each system must ensure, for each infant or toddler with a
disability and his or her family in the State, that an IFSP, as defined
in Sec. 303.20, is developed and implemented that meets the
requirements of Sec. Sec. 303.340 through 303.345, and that includes
service coordination services, as defined in Sec. 303.34.
(Approved by Office of Management and Budget under control number
1820-0550)
(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. 303.302 and 303.303.
(Approved by Office of Management and Budget under control number
1820-0550)
(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 the 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. 303.301.
(Approved by Office of Management and Budget under control number
1820-0550)
(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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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. A
comprehensive system of personnel development--
(a) Must include--
(1) Training personnel to implement innovative strategies and
activities for the recruitment and retention of EIS providers;
(2) Promoting the preparation of EIS providers who are fully and
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 service 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.
(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; and
(4) Training personnel who provide services under this part using
standards that are consistent with early learning personnel development
standards funded under the State Advisory Council on Early Childhood
Education and Care established under the Head Start Act, if applicable.
(Approved by Office of Management and Budget under control number
1820-0550)
(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-
[[Page 60254]]
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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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 administered by agencies, institutions, organizations, and
EIS providers receiving assistance under part C of the Act.
(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 administered by agencies, institutions, organizations, and EIS
providers that 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, organizations, and EIS
providers used by the State to carry out part C of the Act;
(ii) Enforcing any obligations imposed on those agencies,
institutions, organizations, and EIS providers under part C of the Act
and these regulations;
(iii) Providing technical assistance, if necessary, to those
agencies, institutions, organizations, and EIS providers;
(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
this part 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 EIS 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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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 individuals 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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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 in
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.
(Approved by Office of Management and Budget under control number
1820-0550, 1820-0557 and 1820-0578)
(Authority: 20 U.S.C. 1416, 1418(a)-(c), 1435(a)(14), 1442)
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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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)
[[Page 60255]]
(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 achieved satisfactorily in a
natural environment.
(Approved by Office of Management and Budget under control number
1820-0550)
(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. 303.221 through 303.227.
(Approved by Office of Management and Budget under control number
1820-0550)
(Authority: 20 U.S.C. 1437)
Application Requirements
Sec. 303.201 Designation of lead agency.
Each application must include the name of the State lead agency, as
designated under Sec. 303.120, that will be responsible for the
administration of funds provided under this part.
(Approved by Office of Management and Budget under control number
1820-0550)
(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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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 as required under
subpart F of this part and including--
(1) Policies or procedures adopted by the State as its system of
payments that meet the requirements in Sec. Sec. 303.510, 303.520 and
303.521 (regarding the use of public insurance or benefits, private
insurance, or family costs or fees); and
(2) Methods used by the State to implement the requirements in
Sec. 303.511(b)(2) and (b)(3); and
(c) The State's rigorous definition of developmental delay as
required under Sec. Sec. 303.10 and 303.111.
(Approved by Office of Management and Budget under control number
1820-0550)
(Authority: 20 U.S.C. 1432(3), 1432(4)(B), 1432(4)(C), 1435(a)(1),
1435(a)(10)(B), 1437(a)(3), 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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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 public agencies. If other public 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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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.
303.303(b).
(Approved by Office of Management and Budget under control number
1820-0550)
(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), 1441)
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.
(Approved by Office of Management and Budget under control number
1820-0550)
(Authority: 20 U.S.C. 1437(a)(7))
Sec. 303.208 Public participation policies and procedures.
(a) Application. At least 60 days prior to being submitted to the
Department,
[[Page 60256]]
each application for funds under this part (including any policies,
procedures, descriptions, methods, certifications, assurances and other
information required in the application) must be published in a manner
that will ensure circulation throughout the State for at least a 60-day
period, with an opportunity for public comment on the application for
at least 30 days during that period.
(b) State Policies and Procedures. Each application must include a
description of the policies and procedures used by the State to ensure
that, before adopting any new policy or procedure (including any
revision to an existing policy or procedure) needed to comply with part
C of the Act and these regulations, the lead agency--
(1) Holds public hearings on the new policy or procedure (including
any revision to an existing policy or procedure);
(2) Provides notice of the hearings held in accordance with
paragraph (b)(1) of this section at least 30 days before the hearings
are conducted to enable public participation; and
(3) Provides an opportunity for the general public, including
individuals with disabilities, parents of infants and toddlers with
disabilities, EIS providers, and the members of the Council, to comment
for at least 30 days on the new policy or procedure (including any
revision to an existing policy or procedure) needed to comply with part
C of the Act and these regulations.
(Approved by Office of Management and Budget under control number
1820-0550)
(Authority: 20 U.S.C. 1231d, 1221e-3, 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 infants and toddlers with disabilities
under the age of three and their families from receiving early
intervention services under this part to--
(i) Preschool or other appropriate services (for toddlers with
disabilities); or
(ii) Exiting the program for infants and toddlers with
disabilities.
(2) A description of how the State will meet each of the
requirements in paragraphs (b) through (f) 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 address how the lead
agency and the SEA will meet the requirements of paragraphs (b) through
(f) of this section (including any policies adopted by the lead agency
under Sec. 303.401(d) and (e)), Sec. 303.344(h), and 34 CFR
300.101(b), 300.124, 300.321(f), and 300.323(b).
(4) Any policy the lead agency has adopted under Sec. 303.401(d)
and (e).
(b) Notification to the SEA and appropriate LEA. (1) The State lead
agency must ensure that--
(i) Subject to paragraph (b)(2) of this section, not fewer than 90
days before the third birthday of the toddler with a disability if that
toddler may be eligible for preschool services under part B of the Act,
the lead agency notifies the SEA and the LEA for the area in which the
toddler resides that the toddler on his or her third birthday will
reach the age of eligibility for services under part B of the Act, as
determined in accordance with State law;
(ii) Subject to paragraph (b)(2) of this section, if the lead
agency determines that the toddler is eligible for early intervention
services under part C of the Act more than 45 but less than 90 days
before that toddler's third birthday and if that toddler may be
eligible for preschool services under part B of the Act, the lead
agency, as soon as possible after determining the child's eligibility,
notifies the SEA and the LEA for the area in which the toddler with a
disability resides that the toddler on his or her third birthday will
reach the age of eligibility for services under part B of the Act, as
determined in accordance with State law; or
(iii) Subject to paragraph (b)(2) of this section, if a toddler is
referred to the lead agency fewer than 45 days before that toddler's
third birthday and that toddler may be eligible for preschool services
under part B of the Act, the lead agency, with parental consent
required under Sec. 303.414, refers the toddler to the SEA and the LEA
for the area in which the toddler resides; but, the lead agency is not
required to conduct an evaluation, assessment, or an initial IFSP
meeting under these circumstances.
(2) The State must ensure that the notification required under
paragraphs (b)(1)(i) and (b)(1)(ii) of this section is consistent with
any policy that the State has adopted, under Sec. 303.401(e),
permitting a parent to object to disclosure of personally identifiable
information.
(c) Conference to discuss services. The State lead agency must
ensure that--
(1) If a toddler with a disability may be eligible for preschool
services under part B of the Act, the lead agency, with the approval of
the family of the toddler, convenes a conference, among the lead
agency, the family, and the LEA not fewer than 90 days--and, at the
discretion of all parties, not more than 9 months--before the toddler's
third birthday to discuss any services the toddler may receive under
part B of the Act; and.
(2) If the lead agency determines that a toddler with a disability
is not potentially eligible for preschool services under part B of the
Act, the lead agency, with the approval of the family of that toddler,
makes reasonable efforts to convene a conference among the lead agency,
the family, and providers of other appropriate services for the toddler
to discuss appropriate services that the toddler may receive.
(d) Transition plan. The State lead agency must ensure that for all
toddlers with disabilities--
(1)(i) It reviews 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; and
(ii) Each family of a toddler with a disability who is served under
this part is included in the development of the transition plan
required under this section and Sec. 303.344(h);
(2) It establishes a transition plan in the IFSP not fewer than 90
days--and, at the discretion of all parties, not more than 9 months--
before the toddler's third birthday; and
(3) The transition plan in the IFSP includes, 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 part C program; and
(ii) Any transition services that the IFSP Team identifies as
needed by that toddler and his or her family.
(e) Transition conference and meeting to develop transition plan.
Any conference conducted under paragraph (c) of this section or meeting
to develop the transition plan under paragraph (d) of this section
(which conference and meeting may be combined into one meeting) must
meet the requirements in Sec. Sec. 303.342(d) and (e) and 303.343(a).
[[Page 60257]]
(f) Applicability of transition requirements. (1) The transition
requirements in paragraphs (b)(1)(i) and (b)(1)(ii), (c)(1), and (d) of
this section apply to all toddlers with disabilities receiving services
under this part before those toddlers turn age three, including any
toddler with a disability under the age of three who is served by a
State that offers services under Sec. 303.211.
(2) In a State that offers services under Sec. 303.211, for
toddlers with disabilities identified in Sec. 303.209(b)(1)(i), the
parent must be provided at the transition conference conducted under
paragraph (c)(1) of this section:
(i) An explanation, consistent with Sec. 303.211(b)(1)(ii), of the
toddler's options to continue to receive early intervention services
under this part or preschool services under section 619 of the Act.
(ii) The initial annual notice referenced in Sec. 303.211(b)(1).
(3) For children with disabilities age three and older who receive
services pursuant to Sec. 303.211, the State must ensure that it
satisfies the separate transition requirements in Sec.
303.211(b)(6)(ii).
(Approved by Office of Management and Budget under control number
1820-0550)
(Authority: 20 U.S.C. 1412(a)(3) and (a)(9), 1436(a)(3), 1437(a)(9))
Sec. 303.210 Coordination with Head Start and Early Head Start, early
education, and child care programs.
(a) 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., as amended), early
education and child care programs, and services under this part.
(Approved by Office of Management and Budget under control number
1820-0550)
(b) The State lead agency must participate, consistent with section
642B(b)(1)(C)(viii) of the Head Start Act, on the State Advisory
Council on Early Childhood Education and Care established under the
Head Start Act.
(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 a parent of a child with a
disability who is eligible for preschool 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 his or her child after the child turns three until
the child enters, or is 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--
(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; or
(iii) From age three until the beginning of the school year
following the child's fifth birthday.
(3) In no case may a State provide services under this section
beyond the age at which the child actually enters, or is eligible under
State law to enter, kindergarten or elementary school in the State.
(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 who are eligible for
services under section 619 of the Act and who previously received early
intervention services under this part will be provided an 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 ensures that any child served pursuant to this
section has the right, at any time, 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) The lead agency must continue to provide all early intervention
services identified in the toddler with a disability's IFSP under Sec.
303.344 (and consented to by the parent under Sec. 303.342(e)) beyond
age three until that toddler's initial eligibility determination under
part B of the Act is made under 34 CFR 300.306. This provision does not
apply if the LEA has requested parental consent for the initial
evaluation under 34 CFR 300.300(a) and the parent has not provided that
consent.
(5) The lead agency must obtain informed consent from the parent of
any child with a disability for the continuation of early intervention
services pursuant to this section for that child. Consent must be
obtained before the child reaches three years of age, where
practicable.
(6)(i) For toddlers with disabilities under the age of three in a
State that offers services under this section, the lead agency ensures
that the transition requirements in Sec. 303.209(b)(1)(i) and
(b)(1)(ii), (c)(1), and (d) are met.
(ii) For toddlers with disabilities age three and older in a State
that offers services under this section, the lead agency ensures a
smooth transition from services under this section to preschool,
kindergarten or elementary school by--
(A) Providing the SEA and LEA where the child resides, consistent
with any State policy adopted under Sec. 303.401(e), the information
listed in Sec. 303.401(d)(1) not fewer than 90 days before the child
will no longer be eligible under paragraph (a)(2) of this section to
receive, or will no longer receive, early intervention services under
this section;
(B) With the approval of the parents of the child, convening a
transition conference, among the lead agency, the parents, and the LEA,
not fewer than 90 days--and, at the discretion of all parties, not more
than 9 months--before the child will no longer be eligible under
paragraph (a)(2) of this section to receive, or no longer receives,
early intervention services under this section, to discuss any services
that the child may receive under part B of the Act; and
(C) Establishing a transition plan in the IFSP not fewer than 90
days--and, at the discretion of all parties, not more than 9 months--
before the child will no longer be eligible under paragraph (a)(2) of
this section to receive, or no longer receives, early intervention
services under this section.
(7) In States that adopt the option to make services under this
part available to children ages three and older pursuant to this
section, there will be a referral to the part C system, dependent upon
parental consent, of a child under the age of three who directly
[[Page 60258]]
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.
(Approved by Office of Management and Budget under control number
1820-0550)
(Authority: 20 U.S.C. 1435(c), 1437(a)(11))
Sec. 303.212 Additional information and assurances.
Each application must contain--
(a) A description of the steps the State is taking to ensure
equitable access to, and equitable participation in, the part C
statewide system as required by section 427(b) of GEPA; and
(b) Other information and assurances as the Secretary may
reasonably require.
(Approved by Office of Management and Budget under control number
1820-0550)
(Authority: 20 U.S.C. 1228a(b), 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 in Sec. Sec. 303.221
through 303.227.
(Approved by Office of Management and Budget under control number
1820-0550)
(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. Sec. 303.500 and 303.501.
(Approved by Office of Management and Budget under control number
1820-0550)
(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. 303.510 and 303.511 in subpart F of this part.
(Approved by Office of Management and Budget under control number
1820-0550)
(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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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.
(Approved by Office of Management and Budget under control number
1820-0550)
(Authority: 20 U.S.C. 1437(b)(4))
Sec. 303.225 Prohibition against supplanting; indirect costs.
(a) Each application must provide satisfactory assurance that the
Federal funds made available under section 643 of the Act to the State:
(1) Will not be commingled with State funds; and
(2) Will be used so as to supplement 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.
(b) To meet the requirement in paragraph (a) of this section, the
total amount of State and local funds budgeted for expenditures in the
current fiscal year for early intervention services for children
eligible under this part and their families must be at least equal to
the total amount of State and local funds actually expended for early
intervention services for these children and their families in the most
recent preceding fiscal year for which the information is available.
Allowance may be made for--
(1) A decrease in the number of infants and toddlers who are
eligible to receive early intervention services under this part; and
(2)) Unusually large amounts of funds expended for such long-term
purposes as the acquisition of equipment and the construction of
facilities.
(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 paragraph (c)(2)(i) and
(c)(2)(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.
(Approved by Office of Management and Budget under control number
1820-0550)
(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 necessary to ensure proper disbursement
of, and accounting for, Federal funds paid under this part.
(Approved by Office of Management and Budget under control number
1820-0550)
(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
[[Page 60259]]
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.
(Approved by Office of Management and Budget under control number
1820-0550)
(Authority: 20 U.S.C. 1231d, 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, method, or assurance 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. This section applies 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) Reasonable notice; and
(ii) 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 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 303.235, 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 an estimation of time for each
presentation; and
[[Page 60260]]
(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 the 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 the 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, 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 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))
[[Page 60261]]
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
Sec. 303.300 General.
The statewide comprehensive, coordinated, multidisciplinary
interagency system to provide early intervention services for infants
and toddlers with disabilities and their families referenced in Sec.
303.100 must include the following components:
(a) Pre-referral policies and procedures that include--
(1) A public awareness program as described in Sec. 303.301; and
(2) A comprehensive child find system as described in Sec.
303.302.
(b) Referral policies and procedures as described in Sec. 303.303.
(c) Post-referral policies and procedures that ensure compliance
with the timeline requirements in Sec. 303.310 and include--
(1) Screening, if applicable, as described in Sec. 303.320;
(2) Evaluations and assessments as described in Sec. Sec. 303.321
and 303.322; and
(3) Development, review, and implementation of IFSPs as described
in Sec. Sec. 303.340 through 303.346.
Pre-Referral Procedures--Public Awareness Program and Child Find System
Sec. 303.301 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
requires the lead agency to--
(1)(i) Prepare information on the availability of early
intervention services under this part, and other services, as described
in paragraph (b) of this section; and
(ii) Disseminate to all primary referral sources (especially
hospitals and physicians) the information to be given to parents of
infants and toddlers, especially parents with premature infants or
infants with other physical risk factors associated with learning or
developmental complications; and
(2) Adopt procedures for assisting the primary referral sources
described in Sec. 303.303(c) in disseminating the information
described in paragraph (b) of this section to parents of infants and
toddlers with disabilities.
(b) Information to be provided. The information required to be
prepared and disseminated under 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
under the age of three for an evaluation or early intervention
services; and
(3) A central directory, as described in Sec. 303.117.
(c) Information specific to toddlers with disabilities. Each public
awareness program also must include a requirement that the lead agency
provide for informing parents of toddlers with disabilities of the
availability of services under section 619 of the Act not fewer than 90
days prior to the toddler's third birthday.
(Authority: 20 U.S.C. 1435(a)(6), 1437(a)(9))
Sec. 303.302 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 300.111);
(2) Includes a system for making referrals to lead agencies or EIS
providers under this part that--
(i) Includes timelines; and
(ii) Provides for participation by the primary referral sources
described in Sec. 303.303(c);
(3) Ensures rigorous standards for appropriately identifying
infants and toddlers with disabilities for early intervention 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. 303.303, 303.310, 303.320, and 303.321.
(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 early intervention 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 organizations, and
consortia to identify infants and toddlers with disabilities in the
State based, in part, on 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
(iii) Infants and toddlers with disabilities that are referenced in
Sec. 303.303(b); and
(2) An effective method is developed and implemented to identify
children who are in need of early intervention 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 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, including the Maternal,
Infant, and Early Childhood Home Visiting Program, under Title V of the
Social Security Act, as amended, (MCHB or Title V) (42 U.S.C. 701(a));
(C) Early Periodic Screening, Diagnosis, and Treatment (EPSDT)
under 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 and child welfare 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;
(I) The programs that provide services under the Family Violence
Prevention
[[Page 60262]]
and Services Act (42 U.S.C. 10401 et seq.);
(J) Early Hearing Detection and Intervention (EHDI) systems (42
U.S.C. 280g-1) administered by the Centers for Disease Control (CDC);
and
(K) Children's Health Insurance Program (CHIP) authorized under
Title XXI of the Social Security Act (42 U.S.C. 1397aa et seq.).
(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
programs identified in paragraph (c)(1)(ii) of this section; and
(ii) The State will make use of the resources available through
each public agency and EIS 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), 1441)
Referral Procedures
Sec. 303.303 Referral procedures.
(a) General. (1) The lead agency's child find system described in
Sec. 303.302 must include the State's procedures for use by primary
referral sources for referring a child under the age of three to the
part C program.
(2) The procedures required in paragraph (a)(1) of this section
must--
(i) Provide for referring a child as soon as possible, but in no
case more than seven days, after the child has been identified; and
(ii) Meet the requirements in paragraphs (b) and (c) of this
section.
(b) Referral of specific at-risk infants and toddlers. 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 the subject of a substantiated case of child abuse or
neglect; or
(2) Is identified as directly 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) Child care programs and early learning programs;
(5) LEAs and schools;
(6) Public health facilities;
(7) Other public health or 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.
(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. Sec. 303.304-303.309 [Reserved]
Post-Referral Procedures--Screenings, Evaluations, and Assessments
Sec. 303.310 Post-referral timeline (45 days).
(a) Except as provided in paragraph (b) of this section, any
screening under Sec. 303.320 (if the State has adopted a policy and
elects, and the parent consents, to conduct a screening of a child);
the initial evaluation and the initial assessments of the child and
family under Sec. 303.321; and the initial IFSP meeting under Sec.
303.342 must be completed within 45 days from the date the lead agency
or EIS provider receives the referral of the child.
(b) Subject to paragraph (c) of this section, the 45-day timeline
described in paragraph (a) of this section does not apply for any
period when--
(1) The child or parent is unavailable to complete the screening
(if applicable), the initial evaluation, the initial assessments of the
child and family, or the initial IFSP meeting due to exceptional family
circumstances that are documented in the child's early intervention
records; or
(2) The parent has not provided consent for the screening (if
applicable), the initial evaluation, or the initial assessment of the
child, despite documented, repeated attempts by the lead agency or EIS
provider to obtain parental consent.
(c) The lead agency must develop procedures to ensure that in the
event the circumstances described in (b)(1) or (b)(2) of this section
exist, the lead agency or EIS provider must--
(1) Document in the child's early intervention records the
exceptional family circumstances or repeated attempts by the lead
agency or EIS provider to obtain parental consent;
(2) Complete the screening (if applicable), the initial evaluation,
the initial assessments (of the child and family), and the initial IFSP
meeting as soon as possible after the documented exceptional family
circumstances described in paragraph (b)(1) of this section no longer
exist or parental consent is obtained for the screening (if
applicable), the initial evaluation, and the initial assessment of the
child; and
(3) Develop and implement an interim IFSP, to the extent
appropriate and consistent with Sec. 303.345.
(d) The initial family assessment must be conducted within the 45-
day timeline in paragraph (a) of this section if the parent concurs and
even if other family members are unavailable.
(Authority: 20 U.S.C. 1433, 1435(a), 1436(c))
Sec. Sec. 303.311-303.319 [Reserved]
Sec. 303.320 Screening procedures (optional).
(a) General. (1) The lead agency may adopt procedures, consistent
with the requirements of this section, to screen children under the age
of three who have been referred to the part C program to determine
whether they are suspected of having a disability under this part. If
the lead agency or EIS provider proposes to screen a child, it must--
(i) Provide the parent notice under Sec. 303.421 of its intent to
screen the child to identify whether the child is suspected of having a
disability and include in that notice a description of the parent's
right to request an evaluation under Sec. 303.321 at any time during
the screening process; and
(ii) Obtain parental consent as required in Sec. 303.420(a)(1)
before conducting the screening procedures.
(2) If the parent consents to the screening and the screening or
other available information indicates that the child is--
(i) Suspected of having a disability, after notice is provided
under Sec. 303.421 and once parental consent is obtained as required
in Sec. 303.420, an evaluation and assessment of the child must be
conducted under Sec. 303.321; or
(ii) Not suspected of having a disability, the lead agency or EIS
provider must ensure that notice of that determination is provided to
the parent under Sec. 303.421, and that the notice describes the
parent's right to request an evaluation.
(3) If the parent of the child requests and consents to an
evaluation at any time during the screening process, evaluation of the
child must be conducted under Sec. 303.321, even if the lead agency or
EIS provider has determined under paragraph (a)(2)(ii) of this section
that the child is not suspected of having a disability.
(b) Definition of screening procedures. Screening procedures--
(1) Means activities under paragraphs (a)(1) and (a)(2) of this
section that are carried out by, or under the supervision of, the lead
agency or EIS provider to identify, at the earliest possible age,
infants and toddlers suspected of having a disability and in need of
early intervention services; and
[[Page 60263]]
(2) Includes the administration of appropriate instruments by
personnel trained to administer those instruments.
(c) Condition for evaluation or early intervention services. For
every child under the age of three 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 of the child under Sec. 303.321 unless
the child is suspected of having a disability or the parent requests an
evaluation under paragraph (a)(3) of this section; or
(2) Make early intervention services available under this part to
the child unless a determination is made that the child meets the
definition of infant or toddler with a disability under Sec. 303.21.
(Authority: 20 U.S.C. 1432(4)(E)(ix), 1434(1), 1435(a)(2),
1435(a)(5) and (a)(6), 1435(c)(2)(G), 1437(a)(6), 1439(a)(6))
Sec. 303.321 Evaluation of the child and assessment of the child and
family.
(a) General. (1) The lead agency must ensure that, subject to
obtaining parental consent in accordance with Sec. 303.420(a)(2), each
child under the age of three who is referred for evaluation or early
intervention services under this part and suspected of having a
disability, receives--
(i) A timely, comprehensive, multidisciplinary evaluation of the
child in accordance with paragraph (b) of this section unless
eligibility is established under paragraph (a)(3)(i) of this section;
and
(ii) If the child is determined eligible as an infant or toddler
with a disability as defined in Sec. 303.21--
(A) A multidisciplinary assessment of the unique strengths and
needs of that infant or toddler and the identification of services
appropriate to meet those needs;
(B) A family-directed assessment of the resources, priorities, and
concerns of the family and the identification of the supports and
services necessary to enhance the family's capacity to meet the
developmental needs of that infant or toddler. The assessments of the
child and family are described in paragraph (c) of this section and
these assessments may occur simultaneously with the evaluation,
provided that the requirements of paragraph (b) of this section are
met.
(2) As used in this part--
(i) Evaluation means the procedures used by qualified personnel 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. An initial evaluation refers to the child's evaluation
to determine his or her initial eligibility under this part;
(ii) Assessment means the ongoing procedures used by qualified
personnel to identify the child's unique strengths and needs and the
early intervention services appropriate to meet those needs throughout
the period of the child's eligibility under this part and includes the
assessment of the child, consistent with paragraph (c)(1) of this
section and the assessment of the child's family, consistent with
paragraph (c)(2) of this section; and
(iii) Initial assessment refers to the assessment of the child and
the family assessment conducted prior to the child's first IFSP
meeting.
(3)(i) A child's medical and other records may be used to establish
eligibility (without conducting an evaluation of the child) under this
part if those records indicate that the child's level of functioning in
one or more of the developmental areas identified in Sec. 303.21(a)(1)
constitutes a developmental delay or that the child otherwise meets the
criteria for an infant or toddler with a disability under Sec. 303.21.
If the child's part C eligibility is established under this paragraph,
the lead agency or EIS provider must conduct assessments of the child
and family in accordance with paragraph (c) of this section.
(ii) Qualified personnel must use informed clinical opinion when
conducting an evaluation and assessment of the child. In addition, the
lead agency must ensure that informed clinical opinion may be used as
an independent basis to establish a child's eligibility under this part
even when other instruments do not establish eligibility; however, in
no event may informed clinical opinion be used to negate the results of
evaluation instruments used to establish eligibility under paragraph
(b) of this section.
(4) All evaluations and assessments of the child and family must be
conducted by qualified personnel, in a nondiscriminatory manner, and
selected and administered so as not to be racially or culturally
discriminatory.
(5) Unless clearly not feasible to do so, all evaluations and
assessments of a child must be conducted in the native language of the
child, in accordance with the definition of native language in Sec.
303.25.
(6) Unless clearly not feasible to do so, family assessments must
be conducted in the native language of the family members being
assessed, in accordance with the definition of native language in Sec.
303.25.
(b) Procedures for evaluation of the child. In conducting an
evaluation, no single procedure may be used as the sole criterion for
determining a child's eligibility under this part. Procedures must
include--
(1) Administering an evaluation instrument;
(2) Taking the child's history (including interviewing the parent);
(3) Identifying the child's level of functioning in each of the
developmental areas in Sec. 303.21(a)(1);
(4) Gathering information from other sources such as family
members, other care-givers, medical providers, social workers, and
educators, if necessary, to understand the full scope of the child's
unique strengths and needs; and
(5) Reviewing medical, educational, or other records.
(c) Procedures for assessment of the child and family. (1) An
assessment of each infant or toddler with a disability must be
conducted by qualified personnel in order to identify the child's
unique strengths and needs and the early intervention services
appropriate to meet those needs. The assessment of the child must
include the following--
(i) A review of the results of the evaluation conducted under
paragraph (b) of this section;
(ii) Personal observations of the child; and
(iii) The identification of the child's needs in each of the
developmental areas in Sec. 303.21(a)(1).
(2) A family-directed assessment must be conducted by qualified
personnel in order to identify 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. The family-directed assessment
must--
(i) Be voluntary on the part of each family member participating in
the assessment;
(ii) Be based on information obtained through an assessment tool
and also through an interview with those family members who elect to
participate in the assessment; and
(iii) Include the family's description of its resources,
priorities, and concerns related to enhancing the child's development.
(Authority: 20 U.S.C. 1435(a)(3), 1435(a)(5), 1436(a)(1)-(2))
Sec. 303.322 Determination that a child is not eligible.
If, based on the evaluation conducted under Sec. 303.321, the lead
agency determines that a child is not eligible under this part, the
lead agency must provide the parent with prior written notice required
in Sec. 303.421, and include in the notice information about
[[Page 60264]]
the parent's right to dispute the eligibility determination through
dispute resolution mechanisms under Sec. 303.430, such as requesting a
due process hearing or mediation or filing a State complaint.
(Authority: 20 U.S.C. 1439(a)(6))
Individualized Family Service Plan (IFSP)
Sec. 303.340 Individualized family service plan--general.
For each infant or toddler with a disability, the lead agency must
ensure the development, review, and implementation of an individualized
family service plan or IFSP developed by a multidisciplinary team,
which includes the parent, 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 303.346 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
referred to the part C program and determined to be eligible under this
part as an infant or toddler with a disability, a meeting to develop
the initial IFSP must be conducted within the 45-day time period
described in Sec. 303.310.
(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 results or
outcomes identified in the IFSP is being made; and
(ii) Whether modification or revision of the results, outcomes, or
early intervention services identified in the IFSP 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 and revise, as
appropriate, the IFSP for a child and the child's family. The results
of any current evaluations and other information available from the
assessments of the child and family conducted under Sec. 303.321 must
be used in determining the early intervention services that 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 for the family;
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 written consent, as described in
Sec. 303.7, must be obtained, as required in Sec. 303.420(a)(3),
prior to the provision of early intervention services described in the
IFSP. Each early intervention service must be provided as soon as
possible after the parent provides consent for that service, as
required in Sec. 303.344(f)(1).
(Authority: 20 U.S.C. 1435(a)(4), 1436)
Sec. 303.343 IFSP Team meeting and periodic review.
(a) Initial and annual IFSP Team meeting. (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.
(iv) The service coordinator designated by the public agency to be
responsible for implementing the IFSP.
(v) A person or persons directly involved in conducting the
evaluations and assessments in Sec. 303.321.
(vi) As appropriate, persons who will be providing early
intervention 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 under Sec. 303.342(b)
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. 1435(a)(4), 1436)
Sec. 303.344 Content of an IFSP.
(a) Information about the child's status. The IFSP must include a
statement of the infant or toddler with a disability'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
that child's evaluation and assessments conducted under Sec. 303.321.
(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.
303.321(c)(2).
(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 timelines used to determine--
(1) The degree to which progress toward achieving the results or
outcomes identified in the IFSP is being made; and
(2) Whether modifications or revisions of the expected results or
outcomes, or early intervention services identified in the IFSP 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 early intervention services;
(ii)(A) A statement that each early intervention service is
provided in the natural environment for that child or service to the
maximum extent appropriate, consistent with Sec. Sec. 303.13(a)(8),
303.26 and 303.126, or, subject to paragraph (d)(1)(ii)(B) of this
section, a justification as to why an early intervention service will
not be provided in the natural environment.
(B) The determination of the appropriate setting for providing
early intervention services to an infant or
[[Page 60265]]
toddler with a disability, including any justification for not
providing a particular early intervention service in the natural
environment for that infant or toddler with a disability 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),
303.26, and 303.126; and
(3) Based on the child's outcomes that are identified by the IFSP
Team in paragraph (c) of this section;
(iii) The location of the early intervention 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 early
intervention service in paragraph (d)(1) of this section, which date
must be as soon as possible after the parent consents to the service,
as required in Sec. Sec. 303.342(e) and 303.420(a)(3); 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 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 implementing 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 and services to be taken to support the smooth transition of the
child, in accordance with Sec. Sec. 303.209 and 303.211(b)(6), from
part C services to--
(i) Preschool services under part B of the Act, to the extent that
those services are appropriate;
(ii) Part C services under Sec. 303.211; or
(iii) 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) Confirmation that child find information about the child has
been transmitted to the LEA or other relevant agency, in accordance
with Sec. 303.209(b) (and any policy adopted by the State under Sec.
303.401(e)) and, with parental consent if required under Sec. 303.414,
transmission of additional information needed by the LEA to ensure
continuity of services from the part C program to the part B program,
including a copy of the most recent evaluation and assessments of the
child and the family and most recent IFSP developed 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(a)(3),
1436(d), 1437(a)(9)-(10), 1440)
Sec. 303.345 Interim IFSPs--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 and
assessments in Sec. 303.321, 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 implementing the interim IFSP and
coordinating 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. 303.310.
(Authority: 20 U.S.C. 1436(c))
Sec. 303.346 Responsibility and accountability.
Each public agency or EIS provider 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 public agency or EIS provider 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.
Subject to paragraph (c) of this section, each lead agency must--
(a) Establish or adopt the procedural safeguards that meet the
requirements of this subpart, including the provisions on
confidentiality in Sec. Sec. 303.401 through 303.417, parental consent
and notice in Sec. Sec. 303.420 and 303.421, surrogate parents in
Sec. 303.422, and dispute resolution procedures in Sec. 303.430;
(b) Ensure the effective implementation of the safeguards by each
participating agency (including the lead agency and EIS providers) in
the statewide system that is involved in the provision of early
intervention services under this part; and
(c) Make available to parents an initial copy of the child's early
intervention record, at no cost to the parents.
(Authority: 20 U.S.C. 1439(a))
[[Page 60266]]
Confidentiality of Personally Identifiable Information and Early
Intervention Records
Sec. 303.401 Confidentiality and opportunity to examine records.
(a) General. Each State must ensure that the parents of a child
referred under this part are 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. As required under sections 617(c)
and 642 of the Act, the regulations in Sec. Sec. 303.401 through
303.417 ensure the protection of the confidentiality of any personally
identifiable data, information, and records collected or maintained
pursuant to this part by the Secretary and by participating agencies,
including the State lead agency and EIS providers, in accordance with
the protections under the Family Educational Rights and Privacy Act
(FERPA) in 20 U.S.C. 1232g and 34 CFR part 99. Each State must have
procedures in effect to ensure that--
(1) Participating agencies (including the lead agency and EIS
providers) comply with the part C confidentiality procedures in
Sec. Sec. 303.401 through 303.417; 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 early intervention 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
participating agency is no longer required to maintain or no longer
maintains that information under applicable Federal and State laws.
(d) Disclosure of information. (1) Subject to paragraph (e) of this
section, the lead agency must disclose to the SEA and the LEA where the
child resides, in accordance with Sec. 303.209(b)(1)(i) and
(b)(1)(ii), the following 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 Sec. 303.211 and part B of the Act.
(e) Option to inform a parent about intended disclosure. (1) A lead
agency, through its policies and procedures, may require EIS providers,
prior to making the limited disclosure described in paragraph (d)(1) of
this section, to inform parents of a toddler with a disability of the
intended disclosure and allow the parents 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 and EIS provider are not
permitted to make such a disclosure under paragraph (d) of this section
and Sec. 303.209(b)(1)(i) and (b)(1)(ii).
(Authority: 20 U.S.C. 1412(a)(8), 1412(a)(9), 1417(c), 1435(a)(5),
1437(a)(9), 1439(a)(2), 1439(a)(4), 1439(a)(6), 1442)
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.
303.401 through 303.417. The regulations in Sec. Sec. 303.401 through
303.417 ensure the protection of the confidentiality of any personally
identifiable data, information, and records collected or maintained
pursuant to this part by the Secretary and by participating agencies,
including the State lead agency and EIS providers, in accordance with
the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g,
and 34 CFR part 99.
(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 in addition to the definition of personally identifiable
information in Sec. 303.29 and disclosure in 34 CFR 99.3:
(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) Early intervention records mean all records regarding a child
that are required to be collected, maintained, or used under part C of
the Act and the regulations in this part.
(c) Participating agency means any individual, agency, entity, or
institution that collects, maintains, or uses personally identifiable
information to implement the requirements in part C of the Act and the
regulations in this part with respect to a particular child. A
participating agency includes the lead agency and EIS providers and any
individual or entity that provides any part C services (including
service coordination, evaluations and assessments, and other part C
services), but does not include primary referral sources, or public
agencies (such as the State Medicaid or CHIP program) or private
entities (such as private insurance companies) that act solely as
funding sources for part C services.
(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 when a child is referred under
part C of the Act that is adequate to fully inform parents about the
requirements in 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;
(c) A description of all the rights of parents and children
regarding this information, including their rights under the part C
confidentiality provisions in Sec. Sec. 303.401 through 303.417; and
(d) A description of the extent that the notice is provided in the
native languages of the various population groups in the State.
[[Page 60267]]
(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 early intervention records relating to their children that
are collected, maintained, or used by the agency under this part. The
agency must comply with a parent's request to inspect and review
records 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 10 days after the request has
been made.
(b) The right to inspect and review early intervention records
under this section includes--
(1) The right to a response from the participating agency to
reasonable requests for explanations and interpretations of the early
intervention records;
(2) The right to request that the participating agency provide
copies of the early intervention 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 early intervention records.
(c) An agency may 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 early intervention 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 early intervention 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 early intervention 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 early intervention 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 for records.
(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, except as provided in paragraph (c) of this
section.
(b) A participating agency may not charge a fee to search for or to
retrieve information under this part.
(c) A participating agency must provide at no cost to parents, a
copy of each evaluation, assessment of the child, family assessment,
and IFSP as soon as possible after each IFSP meeting.
(Authority: 20 U.S.C. 1417(c), 1432(4)(B), 1439(a)(2), 1439(a)(4),
1442)
Sec. 303.410 Amendment of records at a parent's request.
(a) A parent who believes that information in the early
intervention records collected, maintained, or used under this part is
inaccurate, misleading, or violates the privacy or other rights of the
child or parent 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 refuses 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 parents with the
opportunity for a hearing to challenge information in their child's
early intervention records to ensure that it is not inaccurate,
misleading, or otherwise in violation of the privacy or other rights of
the child or parents. A parent may request a due process hearing under
the procedures in Sec. 303.430(d)(1) provided that such hearing
procedures meet the requirements of the hearing procedures in Sec.
303.413 or may request a hearing directly under the State's procedures
in Sec. 303.413 (i.e., procedures that are consistent with the FERPA
hearing requirements in 34 CFR 99.22).
(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 or parent, 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 or parent, it must inform the
parent of the right to place in the early intervention 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 early intervention records of the
child under this section must--
(1) Be maintained by the agency as part of the early intervention
records of the child as long as the record or contested portion is
maintained by the agency; and
(2) If the early intervention records of the child or the contested
portion are 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) Except as provided in paragraph (b) of this section, prior
parental consent must be obtained before personally identifiable
information is--
(1) Disclosed to anyone other than authorized representatives,
officials, or 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.
[[Page 60268]]
(b) A lead agency or other participating agency may not disclose
personally identifiable information, as defined in Sec. 303.29, to any
party except participating agencies (including 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--
(1) Sections 303.401(d), 303.209(b)(1)(i) and (b)(1)(ii), and
303.211(b)(6)(ii)(A); or
(2) One of the exceptions enumerated in 34 CFR 99.31 (where
applicable to part C), which are expressly adopted to apply to part C
through this reference. In applying the exceptions in 34 CFR 99.31 to
this part, participating agencies must also comply with the pertinent
conditions in 34 CFR 99.32, 99.33, 99.34, 99.35, 99.36, 99.38, and
99.39; in applying these provisions in 34 CFR part 99 to part C, the
reference to--
(i) 34 CFR 99.30 means Sec. 303.414(a);
(ii) ``Education records'' means early intervention records under
Sec. 303.403(b);
(iii) ``Educational'' means early intervention under this part;
(iv) ``Educational agency or institution'' means the participating
agency under Sec. 303.404(c);
(v) ``School officials and officials of another school or school
system'' means qualified personnel or service coordinators under this
part;
(vi) ``State and local educational authorities'' means the lead
agency under Sec. 303.22; and
(vii) ``Student'' means child under this part.
(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.
(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)
Sec. 303.415 Safeguards.
(a) Each participating agency must protect the confidentiality of
personally identifiable information at the 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 participating 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 of
the Act, the GEPA provisions in 20 U.S.C. 1232f, 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 the policies and procedures,
including sanctions and the right to file a complaint under Sec. Sec.
303.432 through 303.434, that the State uses to ensure that its
policies and procedures, consistent with Sec. Sec. 303.401 through
303.417, are followed and that the requirements of the Act and the
regulations in this part are met.
(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 services.
(a) The lead agency must ensure parental consent is obtained
before--
(1) Administering screening procedures under Sec. 303.320 that are
used to determine whether a child is suspected of having a disability;
(2) All evaluations and assessments of a child are conducted under
Sec. 303.321;
(3) Early intervention services are provided to the child under
this part;
(4) Public benefits or insurance or private insurance is used if
such consent is required under Sec. 303.520; and
(5) Disclosure of personally identifiable information consistent
with Sec. 303.414.
(b) If a parent does not give consent under paragraph (a)(1),
(a)(2), or (a)(3) of this section, the lead agency must make reasonable
efforts to ensure that the parent--
(1) Is fully aware of the nature of the evaluation and assessment
of the child or early intervention services that would be available;
and
(2) Understands that the child will not be able to receive the
evaluation, assessment, or early intervention service unless consent is
given.
(c) The lead agency may not use the due process hearing procedures
under this part or part B of the Act to challenge a parent's refusal to
provide any consent that is required under paragraph (a) of this
section.
(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 provided to parents a
reasonable time before the lead agency or an EIS provider proposes, or
refuses, to initiate or change the identification, evaluation, or
placement of their infant or toddler, 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 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--
(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.
[[Page 60269]]
(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 must 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 parent. 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 that has been assigned care of the
child.
(c) Wards of the State. In the case of a child who is a ward of the
State, the surrogate parent, instead of being appointed by the lead
agency under paragraph (b)(1) of this section, may be appointed by the
judge overseeing the infant or toddler's case provided that the
surrogate parent meets the requirements in paragraphs (d)(2)(i) and (e)
of this section.
(d) 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,
education, care, 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.
(e) Non-employee requirement; compensation. A person who is
otherwise qualified to be a surrogate parent under paragraph (d) 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.
(f) Surrogate parent responsibilities. The surrogate parent has the
same rights as a parent for all purposes under this part.
(g) Lead agency responsibility. The lead agency must make
reasonable efforts to ensure the assignment of a surrogate parent not
more than 30 days after a public agency determines that the child needs
a surrogate parent.
(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 in 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. Each 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.
(Approved by Office of Management and Budget under control number
1820-0678 and 1820-NEW)
(Authority: 20 U.S.C. 1415(e), 1415(f)(1)(A), 1415(f)(3)(A)-(D),
1439)
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 at any time.
(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 due process
hearing, 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 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--
[[Page 60270]]
(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 lead
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 services 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.
(Approved by Office of Management and Budget under control number
1820-NEW)
(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 in 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 (P&A) 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, the 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 actions appropriate to address the needs of the infant or
toddler with a disability who is the subject of the complaint and the
infant's or toddler's family (such as compensatory services or monetary
reimbursement); and
(2) Appropriate future provision of services for all infants and
toddlers with disabilities and their families.
(Approved by Office of Management and Budget under control number
1820-NEW)
(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 an
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, public 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, public agency, or EIS
provider's failure to implement a due process hearing decision must be
resolved by the lead agency.
(Approved by Office of Management and Budget under control number
1820-NEW)
(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--
[[Page 60271]]
(1) A statement that the lead agency, public agency, or EIS
provider has violated a requirement of part C of the Act;
(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.
(Approved by Office of Management and Budget under control number
1820-NEW)
(Authority: 20 U.S.C. 1439(a)(1))
States That Choose To Adopt the Part C Due Process Hearing 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 at no cost to the parent; and
(5) Receive a written copy of the findings of fact and decisions at
no cost to the parent.
(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.
(c) A hearing officer may grant specific extensions of time beyond
the period set out in paragraph (b) of this section at the request of
either party.
(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 Hearing 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, or the provision of early intervention services to the infant
or toddler with a disability and his or her family under part C of the
Act.
(2) The due process complaint must allege a violation that occurred
not more than two years before the date the parent 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 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.
(Approved by Office of Management and Budget under control number
1820-NEW)
(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;
[[Page 60272]]
(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)), 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 in 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 or EIS provider 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 or EIS provider 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 or EIS provider's proposed or refused action.
(2) A response by the lead agency under paragraph (e)(1) of this
section does not 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 resolution 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 paragraphs (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 (b)(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 the 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.
[[Page 60273]]
(d) Written settlement agreement. If a resolution to the dispute is
reached at the meeting described in paragraphs (a)(1) and (a)(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 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 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 lead 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.
(Approved by Office of Management and Budget under control number
1820-NEW)
(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--
(1) Be given the right to open the hearing to the public; and
(2) Receive a copy of the record of the hearing and the findings of
fact and decisions described in paragraphs (a)(4) and (a)(5) of this
section at no cost.
(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's determination of whether an infant or
toddler was appropriately identified, evaluated, or placed, 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, must be based on substantive grounds.
(2) In matters alleging a procedural violation, a hearing officer
may find that a child was not appropriately identified, evaluated,
placed, or provided early intervention services 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 parent's 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 precludes a hearing
officer from ordering the lead agency or EIS provider to comply with
procedural requirements under Sec. Sec. 303.400 through 303.449.
[[Page 60274]]
(b) Construction clause. Nothing in Sec. Sec. 303.440 through
303.445 affects the right of a parent to file an appeal of the due
process hearing decision with the lead agency under Sec. 303.446(b),
if the lead agency level appeal is available.
(c) Separate due process complaint. Nothing in Sec. Sec. 303.440
through 303.449 precludes 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) The lead agency may
provide for procedures to allow any party aggrieved by the findings and
decision in the hearing to 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 has 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, payor of last resort, and system of
payments.
(a) Statewide system. Each statewide system must include written
policies and procedures that meet the requirements of the--
(1) Use of funds provisions in Sec. 303.501; and
(2) 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).
(b) System of Payments. 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
[[Page 60275]]
of sliding fees or cost participation fees (such as co-payments,
premiums, or deductibles) 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 the child's family is enrolled,
that meets the requirements of Sec. Sec. 303.520 and 303.521.
(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10)-(12), 1437(b), 1438,
1439(a), 1440)
Use of Funds
Sec. 303.501 Permissive use of funds by the lead agency.
Consistent with Sec. Sec. 303.120 through 303.122 and Sec. Sec.
303.220 through 303.226, a lead agency may use funds under this part
for activities or expenses that 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 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)-(12), 1437(b), 1438)
Payor of Last Resort--General Provisions
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), functions of the child find
system described in Sec. Sec. 303.115 through 303.117 and Sec. Sec.
303.301 through 303.320, and evaluations and assessments in Sec.
303.321), 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 in the State 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), including section 1903(a) of the SSA regarding medical
assistance for services furnished to an infant or toddler with a
disability when those services are included in the child's IFSP adopted
pursuant to part C of the Act.
(Authority: 20 U.S.C. 1435(a)(10)(B), 1437(a)(2), 1440(a), 1440(c))
Sec. 303.511 Methods to ensure the provision of, and financial
responsibility for, Part C services.
(a) General. Each State must ensure that it has in place methods
for State interagency coordination. Under these methods, the Chief
Executive Officer of a State or designee of the Officer must ensure
that the interagency agreement or other method for interagency
coordination is in effect between each State public agency and the
designated lead agency in order to ensure--
(1) The provision of, and establishing financial responsibility
for, early intervention services provided under this part; and
(2) Such services are consistent with the requirement in section
635 of the Act and the State's application under section 637 of the
Act, including the provision of such services during the pendency of
any dispute between State agencies.
(b) The methods in paragraph (a) of this section must meet all
requirements in this section and be set forth in one of the following:
(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.
(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
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.
[[Page 60276]]
(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 financial responsibility to the appropriate agency; and
(ii) The lead agency must make arrangements for reimbursement of
any expenditures incurred by the agency originally assigned financial
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 and include any provisions the State has
adopted under Sec. 303.520 regarding the use of insurance to pay for
part C services.
(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, EIS providers (including all public agencies) involved in the
State's early intervention service programs.
(Authority: 20 U.S.C. 1435(a)(10), 1437(a)(2), 1440(b))
Payor of Last Resort & System of Payments Provisions--Use of Insurance,
Benefits, Systems of Payments, and Fees
Sec. 303.520 Policies related to use of public benefits or insurance
or private insurance to pay for Part C services.
(a) Use of public benefits or public insurance to pay for Part C
services.
(1) A State may not use the public benefits or insurance of a child
or parent to pay for part C services unless the State provides written
notification, consistent with Sec. 303.520(a)(3), to the child's
parents, and the State meets the no-cost protections identified in
paragraph (a)(2) of this section.
(2) With regard to using the public benefits or insurance of a
child or parent to pay for part C services, the State--
(i) May not require a parent to sign up for or enroll in public
benefits or insurance programs as a condition of receiving part C
services and must obtain consent prior to using the public benefits or
insurance of a child or parent if that child or parent is not already
enrolled in such a program;
(ii) Must obtain consent, consistent with Sec. Sec. 303.7 and
303.420(a)(4), to use a child's or parent's public benefits or
insurance to pay for part C services if that use would--
(A) Decrease available lifetime coverage or any other insured
benefit for that child or parent under that program;
(B) Result in the child's parents paying for services that would
otherwise be covered by the public benefits or insurance program;
(C) Result in any increase in premiums or discontinuation of public
benefits or insurance for that child or that child's parents; or
(D) Risk loss of eligibility for the child or that child's parents
for home and community-based waivers based on aggregate health-related
expenditures.
(iii) If the parent does not provide consent under paragraphs
(a)(2)(i) or (a)(2)(ii) of this section, the State must still make
available those part C services on the IFSP to which the parent has
provided consent.
(3) Prior to using a child's or parent's public benefits or
insurance to pay for part C services, the State must provide written
notification to the child's parents. The notification must include--
(i) A statement that parental consent must be obtained under Sec.
303.414, if that provision applies, before the State lead agency or EIS
provider discloses, for billing purposes, a child's personally
identifiable information to the State public agency responsible for the
administration of the State's public benefits or insurance program
(e.g., Medicaid);
(ii) A statement of the no-cost protection provisions in Sec.
303.520(a)(2) and that if the parent does not provide the consent under
Sec. 303.520(a)(2), the State lead agency must still make available
those part C services on the IFSP for which the parent has provided
consent;
(iii) A statement that the parents have the right under Sec.
303.414, if that provision applies, to withdraw their consent to
disclosure of personally identifiable information to the State public
agency responsible for the administration of the State's public
benefits or insurance program (e.g., Medicaid) at any time; and
(iv) A statement of the general categories of costs that the parent
would incur as a result of participating in a public benefits or
insurance program (such as co-payments or deductibles, or the required
use of private insurance as the primary insurance).
(4) If a State requires a parent to pay any costs that the parent
would incur as a result of the State's using a child's or parent's
public benefits or insurance to pay for part C services (such as co-
payments or deductibles, or the required use of private insurance as
the primary insurance), those costs must be identified in the State's
system of payments policies under Sec. 303.521 and included in the
notification provided to the parent under paragraph (a)(3) of this
section; otherwise, the State cannot charge those costs to the parent.
(b) Use of private insurance to pay for Part C services. (1)(i) The
State may not use the private insurance of a parent of an infant or
toddler with a disability to pay for part C services unless the parent
provides parental consent, consistent with Sec. Sec. 303.7 and
303.420(a)(4), to use private insurance to pay for part C services for
his or her child or the State meets one of the exceptions in paragraph
(b)(2) of this section. This includes the use of private insurance when
such use is a prerequisite for the use of public benefits or insurance.
Parental consent must be obtained--
(A) When the lead agency or EIS provider seeks to use the parent's
private insurance or benefits to pay for the initial provision of an
early intervention service in the IFSP; and
(B) Each time consent for services is required under Sec.
303.420(a)(3) due to an increase (in frequency, length, duration, or
intensity) in the provision of services in the child's IFSP.
(ii) If a State requires a parent to pay any costs that the parent
would incur as a result of the State's use of private insurance to pay
for early intervention services (such as co-payments, premiums, or
deductibles), those costs must be identified in the State's system of
payments policies under Sec. 303.521; otherwise, the State may not
charge those costs to the parent.
(iii) When obtaining parental consent required under paragraph
(b)(1)(i) of this section or initially using benefits under a child or
parent's private insurance policy to pay for an early intervention
service under paragraph (b)(2) of this section, the State must provide
to the parent a copy of the State's system of payments policies that
identifies the potential costs that the parent may incur when their
private insurance is used to pay for early intervention services under
this part (such as co-payments, premiums, or deductibles or other long-
term costs such as the loss of benefits because of annual or lifetime
health insurance coverage caps under the insurance policy).
(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
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insurance coverage for early intervention services under part C of the
Act, that expressly provides that--
(i) The use of private health insurance to pay for part C services
cannot count towards or result in a loss of benefits due to the annual
or lifetime health insurance coverage caps for the infant or toddler
with a disability, the parent, or the child's family members who are
covered under that health insurance policy;
(ii) The use of private health insurance to pay for part C services
cannot negatively affect the availability of health insurance to the
infant or toddler with a disability, the parent, or the child's family
members who are covered under that health insurance policy, and health
insurance coverage may not be discontinued for these individuals due to
the use of the health insurance to pay for services under part C of the
Act; and
(iii) The use of private health insurance to pay for part C
services cannot be the basis for increasing the health insurance
premiums of the infant or toddler with a disability, the parent, or the
child's family members covered under that health insurance policy.
(3) If a State has enacted a State statute that meets the
requirements in paragraph (b)(2) of this section, regarding the use of
private health insurance coverage to pay for early intervention
services under part C of the Act, the State may reestablish a new
baseline of State and local expenditures under Sec. 303.225(b) in the
next Federal fiscal year following the effective date of the statute.
(c) Inability to pay. If a parent or family of an infant or toddler
with a disability 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), the lack of consent may not be
used to delay or deny any services under this part to that child or
family.
(d) Proceeds or funds from public insurance or benefits or from
private insurance. (1) Proceeds or funds from public insurance or
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 private insurance for services
under this part, those funds are considered neither State nor local
funds under Sec. 303.225.
(e) Funds received from a parent or family member under a State's
system of payments. Funds received by the State from a parent or family
member under the State's system of payments established under Sec.
303.521 are considered program income under 34 CFR 80.25. These funds--
(1) Are not 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))
Sec. 303.521 System of payments and fees.
(a) General. If a State elects to adopt a system of payments in
Sec. 303.500(b), the State's system of payments policies must be in
writing and specify which functions or services, if any, are subject to
the system of payments (including any fees charged to the family as a
result of using one or more of the family's public insurance or
benefits or private insurance), and include--
(1) The payment system and schedule of sliding or cost
participation fees that 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 ability to pay (including its
definition of income and family expenses, such as extraordinary medical
expenses), its definition of inability to pay, and when and how the
State makes its determination of the ability or inability to pay;
(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.
(iii) Families will not be charged any more than the actual cost of
the part C service (factoring in any amount received from other sources
for payment for that service); and
(iv) 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 permit, but do not require, the lead agency to
use part C or other funds to pay for costs such as the premiums,
deductibles, or co-payments.
(b) Functions not subject to fees. The following are required
functions that must be carried out at public expense, 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 the functions related to evaluation and assessment in Sec.
303.13(b).
(3) Service coordination services, as defined in Sec. Sec.
303.13(b)(11) 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 of this part 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 the child's 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.
[[Page 60278]]
(2) Fees collected under a system of payments are considered
neither State nor local funds under Sec. 303.225(b).
(e) Procedural Safeguards. (1) Each State system of payments must
include written policies to inform parents that a parent who wishes to
contest the imposition of a fee, or the State's determination of the
parent's ability to pay, may do one of the following:
(i) Participate in mediation in accordance with Sec. 303.431.
(ii) Request a due process hearing under Sec. 303.436 or 303.441,
whichever is applicable.
(iii) File a State complaint under Sec. 303.434.
(iv) Use any other procedure established by the State for speedy
resolution of financial claims, provided that such use does not delay
or deny the parent's procedural rights under this part, including the
right to pursue, in a timely manner, the redress options described in
paragraphs (e)(2)(i) through (e)(2)(iii) of this section.
(2) A State must inform parents of these procedural safeguard
options by either--
(i) Providing parents with a copy of the State's system of payments
policies when obtaining consent for provision of early intervention
services under Sec. 303.420(a)(3); or
(ii) Including this information with the notice provided to parents
under Sec. 303.421.
(Authority: 20 U.S.C. 1432(4)(B), 1439(a), 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.
(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 and CHIP 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 private 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 Bureau of Indian Education (BIE)
or, where there is no school operated or funded by the BIE in the
State, 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. 1231d, 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 to--
(1) Conduct hearings and forums;
(2) 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) 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) Hire staff; and
(5) 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;
[[Page 60279]]
(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 303.302, 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.
(c) Coordinate and collaborate with the State Advisory Council on
Early Childhood Education and Care for children, as described in
section 642B(b)(1)(A)(i) of the Head Start Act, 42 U.S.C.
9837b(b)(1)(A)(i), if applicable, and other State interagency early
learning initiatives, as appropriate.
(Authority: 20 U.S.C. 1435(a)(10), 1441(e)(2))
Subpart H--State Monitoring and Enforcem