[Federal Register Volume 72, Number 89 (Wednesday, May 9, 2007)]
[Proposed Rules]
[Pages 26456-26531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2140]
[[Page 26455]]
-----------------------------------------------------------------------
Part II
Department of Education
-----------------------------------------------------------------------
34 CFR Part 303
Early Intervention Program for Infants and Toddlers With Disabilities;
Proposed Rule
Federal Register / Vol. 72, No. 89 / Wednesday, May 9, 2007 /
Proposed Rules
[[Page 26456]]
-----------------------------------------------------------------------
DEPARTMENT OF EDUCATION
34 CFR Part 303
[Docket ID ED-2007-OSERS-131]
RIN 1820-AB59
Early Intervention Program for Infants and Toddlers With
Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: The Secretary proposes to amend the regulations governing the
Early Intervention Program for Infants and Toddlers with Disabilities.
The proposed regulations would implement changes made to the
Individuals with Disabilities Education Act by the Individuals with
Disabilities Education Improvement Act of 2004.
DATES: We must receive your comments on or before July 23, 2007.
We will hold public meetings about this NPRM. The dates, times, and
places of the meetings will be published in a separate notice in the
Federal Register.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments by fax or by e-mail. Please submit your comments only
one time, in order to ensure that we do not receive duplicate copies.
In addition, please include the Docket ID at the top of your comments.
Federal eRulemaking Portal: Go to http://www.regulations.gov, select ``Department of Education'' from the agency
drop-down menu, then click ``Submit.'' In the Docket ID column, select
ED-2007-OSERS-131 to add or view public comments and to view supporting
and related materials available electronically. Information on using
Regulations.gov, including instructions for submitting comments,
accessing documents, and viewing the docket after the close of the
comment period, is available through the site's ``User Tips'' link.
Postal Mail, Commercial Delivery, or Hand Delivery. If you
mail or deliver your comments about these proposed regulations, address
them to Alexa Posny, U.S. Department of Education, 400 Maryland Avenue,
SW., room 4109, Potomac Center Plaza, Washington, DC 20202-2600.
Privacy Note: The Department's policy for comments received from
members of the public (including those comments submitted by mail,
commercial delivery, or hand delivery) is to make these submissions
available for public viewing on the Federal eRulemaking Portal at
http://www.regulations.gov. All submissions will be posted to the
Federal eRulemaking Portal without change, including personal
identifiers and contact information.
FOR FURTHER INFORMATION CONTACT: Alexa Posny, U.S. Department of
Education, 400 Maryland Avenue, SW., room 4109, Potomac Center Plaza,
Washington, DC 20202-2600. Telephone: (202) 245-7459, extension 3.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) upon request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Invitation to Comment
We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have maximum effect in
developing the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these proposed
regulations. Please let us know of any further opportunities we should
provide to reduce the potential costs or increase potential benefits
while preserving the effective and efficient administration of the
program.
During and after the comment period, you may inspect all public
comments about these proposed regulations by accessing Regulations.gov.
You may also inspect the comments, in person, in room 4165, Potomac
Center Plaza, 550 12th Street, SW., Washington, DC, between the hours
of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each
week except Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.
Public Meetings
We will hold public meetings about this NPRM. Each meeting will
take place from 4 p.m. to 7:30 p.m. We will be providing more specific
information on meeting dates and locations in a separate notice
published in the Federal Register.
Assistance to Individuals With Disabilities at the Public Meetings
The meeting sites will be accessible to individuals with
disabilities and sign language interpreters will be available. If you
need an auxiliary aid or service other than a sign language interpreter
to participate in the meeting (e.g., interpreting service such as oral,
cued speech, or tactile interpreter; assisted listening device; or
materials in alternate format), notify the contact person listed under
FOR FURTHER INFORMATION CONTACT at least two weeks before the scheduled
meeting date. Although we will attempt to meet a request we receive
after this date, we may not be able to make available the requested
auxiliary aid or service because of insufficient time to arrange it.
Background
On December 3, 2004, the Individuals with Disabilities Education
Improvement Act of 2004 was enacted into law as Public Law 108-446.
This statute, as passed by Congress and signed by the President,
reauthorizes and makes significant changes to the Individuals with
Disabilities Education Act.
Part C of the Individuals with Disabilities Education Act, as
amended by the Individuals with Disabilities Education Improvement Act
of 2004 (Act or IDEA), provides Federal funds to States to make
available early intervention services for infants and toddlers with
disabilities (from birth to age three) and their families. In 2004, the
Act was revised to--(1) Emphasize child find for underserved
populations of infants and toddlers; (2) increase accountability for
the success of early intervention services; (3) ensure a seamless
transition for children and families when they exit from the Part C
program to other appropriate programs; (4) provide States with
flexibility to provide early intervention services to children with
disabilities who are age three and older; (5) provide States with
alternatives to dispute resolution under
[[Page 26457]]
Part C's procedural safeguards; (6) clarify certain definitions
including specific early intervention services, qualified personnel,
and natural environments; and (7) streamline Part C grant application
requirements.
Changes to the current Part C regulations (34 CFR part 303) are
necessary in order for the Department to appropriately and effectively
address the provisions of the law and to assist State lead agencies and
early intervention service programs and providers in implementing their
responsibilities under the law.
On December 29, 2004, the Secretary published a notice in the
Federal Register requesting advice and recommendations from the public
on regulatory issues under the Act, and announcing a series of seven
public meetings during January and February of 2005 to seek further
input and suggestions for developing regulations based on the new
statute.
Over 6000 public comments were received in response to the Federal
Register notice and the seven public meetings, including letters from
parents, public agency personnel, early intervention personnel, and
parent-advocate and professional organizations. The comments addressed
the major provisions of the law. These comments were reviewed and
considered in developing this NPRM. The Secretary appreciates the
interest and thoughtful attention of the commenters responding to the
December 29, 2004 notice and participating in the seven public
meetings.
General Proposed Regulatory Plan and Structure
In developing this NPRM, we have elected to prepare one
comprehensive document that incorporates the majority of the
requirements from the law along with the applicable regulations, rather
than publishing a regulation that does not include statutory
provisions. The rationale for doing this is to create a single
reference document for parents, State lead agencies, early intervention
service programs and providers, State Interagency Coordinating
Councils, and others to use, so there is no need to shift between one
document for regulations and a separate document for the statute.
Although this approach will result in longer regulations, it is our
impression that there is support for this practice.
We have reorganized the regulations by following the general order,
substance, and structure of provisions in the statute, rather than
using the arrangement of the current regulations. We believe this
change will be helpful to parents, State lead agencies, early
intervention service providers and the public both in reading the
regulations, and in finding the direct link between a given statutory
requirement and the regulation related to that requirement.
The proposed regulations contain Part C statutory provisions (even
where those provisions are not in the current regulations but were in
the statute prior to 2004). For example, proposed Sec. 303.104
(Acquisition of equipment and construction or alteration of facilities)
contains new regulatory language that incorporates the longstanding
statutory language in section 605 of the Act, which was unchanged by
the 2004 amendments to the Act. Because these changes in the proposed
regulations do not involve new substantive requirements, but rather
incorporate longstanding statutory requirements, they are not
identified in this preamble as substantive changes. The changes in
these proposed regulations are identified in the appropriate locations
in the preamble.
In general, the requirements related to a given statutory section
will be included in one location and in the same general order as in
the statute, rather than being spread throughout several subparts, as
the statutory sections are in the current regulations. One exception to
this approach is that the regulations implementing section 638 of the
Act (Uses of funds), are combined with the regulations implementing
section 632 (System of payments) and section 640 of the Act (Payor of
last resort) in proposed subpart F, because both relate to financial
and interagency matters.
As restructured in this NPRM, these proposed regulations are
divided into eight major subparts, each of which is directly linked to,
and comports with, the general order of provisions in a specific
section of the Act. For example, we have revised subpart H in the
proposed regulations to include all provisions regarding the allocation
of Part C funds (from section 643 of the Act), rather than having those
provisions dispersed among several different subparts, as in the
current Part C regulations.
In addition, these proposed regulations do not contain notes
following the regulatory text as in the current regulations. Where
necessary and relevant, language from the notes in the current
regulations has been incorporated into the proposed regulations.
Finally, these proposed regulations incorporate, where practicable,
applicable Part B regulations in order to align the two systems,
minimize administrative costs (particularly for lead agencies that are
also State educational agencies (SEAs) responsible for administering
both Parts B and C of the Act in a State), and promote a seamless
system of services for infants, toddlers, children, and youth with
disabilities birth through 21 years of age.
Significant Proposed Regulations
We discuss substantive issues under the sections of the proposed
regulations to which they pertain. Generally, we do not address
proposed regulatory provisions that are technical or otherwise minor in
effect.
Subpart A--General
Proposed subpart A would incorporate the provisions in sections
601, 602, 631, and 632 of the Act regarding the purpose of and
definitions under Part C of the Act.
Purpose and Applicable Regulations
Proposed Sec. 303.1(a) through (d) (Purpose) would be
substantively unchanged and would incorporate sections 601(d)(2) and
631(a)(5) and (b)(1) through (3) of the Act regarding the purposes of
Part C of the Act. Proposed Sec. 303.1(e), regarding expanding
opportunities for children under three who would be at risk of
developmental delay, would be added to incorporate the language from
section 631(b)(4) of the Act.
Proposed Sec. 303.2, regarding eligible recipients under Part C of
the Act would remain substantively unchanged from current Sec. 303.2,
and would be consistent with the definition of State in section 602(31)
of the Act and in proposed Sec. 303.34.
Current Sec. 303.3, regarding use of funds for activities
supported under Part C of the Act, would be incorporated into proposed
Sec. 303.501 regarding permissive use of funds by the lead agency in
subpart F of these proposed regulations. Current Sec. 303.4 regarding
the limitation on eligible children would be removed because the
definitions of child and infant or toddler with a disability in
proposed Sec. Sec. 303.6 and 303.21, respectively, make clear that
part 303 applies to infants and toddlers with disabilities who are
under the age of three and therefore does not apply to children with
disabilities ages three and older who may be entitled to receive a free
appropriate public education under Part B of the Act.
Proposed Sec. 303.3, regarding applicable regulations, would
incorporate the provisions from current Sec. 303.5. Proposed Sec.
303.3(a)(1) would incorporate the language from current
[[Page 26458]]
Sec. 303.5(a)(2). Proposed Sec. 303.3(a)(2) would include the
references from the Education Department General Administrative
Regulations (EDGAR) in current Sec. 303.5(a)(1). The references to the
Part B regulations in current Sec. 303.3(a)(3) would be removed
because all applicable provisions from the Part B regulations would be
included in these proposed regulations. For example, the provisions in
the Part B regulations regarding confidentiality and the procedures for
the Secretary's determination of State eligibility to receive a grant,
which are cross-referenced in current Sec. 303.5(a)(3), would appear,
respectively, in proposed Sec. Sec. 303.402 through 303.417 and
proposed Sec. Sec. 303.231 through 303.236.
Proposed Sec. 303.3(b) would incorporate the language from current
Sec. 303.5(b)(1), regarding the meaning of State educational agency,
to indicate that any reference to the term State educational agency
means the lead agency under this part.
Current Sec. 303.5(b)(2) through (b)(5) regarding the meaning of
terms and cross-references from the Part B regulations as applied to
the Part C regulations would be removed as unnecessary because we would
incorporate applicable definitions and provisions from the Part B
regulations in these proposed regulations.
Definitions Used in This Part
Proposed Sec. 303.4 (Act) would incorporate the statutory
definition of Act from section 601(a) of the Act and current Sec.
303.6, and would further clarify that the Act has been amended.
Proposed Sec. 303.5 (At-risk infant or toddler) would incorporate
the statutory definition from section 632(1) of the Act. This section
would also include the examples of biological and environmental at-risk
factors listed in Note 2 following current Sec. 303.16 as follows: Low
birth weight, respiratory distress as a newborn, lack of oxygen, brain
hemorrhage, infection, nutritional deprivation, and history of abuse or
neglect. With this change, Note 2 following current Sec. 303.16 would
be removed from the regulations. Proposed Sec. 303.5 would also
include as an example of at-risk infants and toddlers whom the State
may elect to serve those infants and toddlers directly affected by
illegal substance abuse or withdrawal symptoms resulting from prenatal
drug exposure to reflect the new provisions described in section
637(a)(6)(B) of the Act.
Proposed Sec. 303.6 (Child) would modify the definition of child
in current Sec. 303.7 to mean an individual under age six and would be
consistent with the State option outlined in proposed Sec. 303.211 to
serve children ages three and older.
Proposed Sec. 303.7 (Consent) would incorporate the provisions of
current Sec. 303.401(a), except that proposed Sec. 303.7(c)(2) would
add that if the parent revokes consent, that revocation is not
retroactive (i.e., it does not apply to an action that has occurred
before the consent was revoked), consistent with the Part B regulations
in 34 CFR 300.9 (71 FR 46757).
Proposed Sec. 303.8 (Council) would remain substantively unchanged
from current Sec. 303.8 and would reflect the statutory definition in
section 632(2) of the Act.
Proposed Sec. 303.9 (Day) would remain substantively unchanged
from current Sec. 303.9.
Proposed Sec. 303.10 (Developmental delay) would remain
substantively unchanged from current Sec. 303.10 and would cross-
reference proposed Sec. 303.111 regarding the State definition of
developmental delay and proposed Sec. 303.203(c) regarding the
requirement that the State must include its rigorous definition of
developmental delay in its application to the Department.
Proposed Sec. 303.11 (Early intervention service program or EIS
program) would replace current Sec. 303.11 and would clarify that the
EIS program is an entity designated by the lead agency for reporting
under sections 616(b)(2)(C) and 642 of the Act and proposed Sec. Sec.
303.700 through 303.702.
Proposed Sec. 303.12(a) (Early intervention service provider or
EIS provider) would clarify that an EIS provider can be an entity
(whether public, private, or nonprofit) or an individual that provides
early intervention services under Part C of the Act in the State
whether or not the entity or individual receives Federal funds under
Part C of the Act and may include the lead agency and a public agency
under Part C of the Act, where appropriate. For example, an EIS
provider may include the lead agency, a public agency, or individuals
if these entities or individuals are responsible for conducting
evaluations and assessments, providing service coordination, or other
Part C services.
Proposed Sec. 303.12(b) would be similar to current Sec.
303.12(c) in that it would continue to clarify that the EIS provider is
responsible for: participating in the multidisciplinary team's
assessment of an infant or toddler to develop integrated goals and
outcomes for the individualized family service plan (IFSP); and
providing early intervention services in accordance with the infant's
or toddler's IFSP because States must ensure EIS providers are
providing direct services to eligible children in addition to their
other roles. However, proposed Sec. 303.12(b) would further identify
that the EIS provider would be responsible for consulting with and
training parents and others regarding the provision of the early
intervention services described in the infant's or toddler's IFSP.
Proposed Sec. 303.13, regarding the definition of early
intervention services, would replace current Sec. 303.12(a) and (b)
and would incorporate the provisions of the definition of this term in
section 632(4) of the Act. In addition, proposed Sec. 303.13(a)(2)
would retain the language in current Sec. 303.12(a)(2) to clarify that
the early intervention services are selected in collaboration with
parents. Proposed Sec. 303.13(a)(4) would clarify that early
intervention services are designed to meet the developmental needs of
an infant or toddler with a disability, and as requested by the family,
the needs of the family to assist appropriately in the infant's or
toddler's development, as identified by the IFSP team. Proposed Sec.
303.13(a)(8) would clarify that early intervention services, to the
maximum extent appropriate, are provided in natural environments, as
defined in proposed Sec. 303.26 and consistent with proposed Sec.
303.126.
Proposed Sec. 303.13(b) regarding types of early intervention
services would substantively incorporate the provisions of current
Sec. 303.12(d) but would not include the references from current Sec.
303.12(d)(6) and (d)(7) to nursing services and nutrition services,
which are not specifically listed in section 632(4)(E) of the Act. Only
those types of services identified in section 602(4)(E) of the Act
would be retained. The list of services identified in this proposed
section is not intended to comprise an exhaustive list of the types of
services that may be provided to an infant or toddler with a disability
as an early intervention service. Nursing services or nutrition
services could be deemed early intervention services if they are
provided by qualified personnel and otherwise meet the definition of
early intervention services.
Proposed Sec. 303.13(b)(1)(i) (Assistive technology device) and
(b)(1)(ii) (Assistive technology service) would reflect the statutory
definition of these terms in section 602(1) and 602(2) of the Act. The
definition of assistive technology device as well as the definition of
health services in proposed Sec. 303.16(c)(1)(iii) (Health services)
would exclude, as a covered service under Part C of the Act, a medical
device that is surgically implanted,
[[Page 26459]]
including cochlear implants, or the optimization or maintenance or
replacement of such a device, consistent with section 602(1)(B) of the
Act and 34 CFR 300.34(b) of the Part B regulations (71 FR 46760).
Optimization or ``mapping'' of a cochlear implant means the
adjustment or fine tuning of the electrical stimulation levels provided
by the cochlear implant. These adjustments are required as an infant or
toddler learns to discriminate signals to a finer degree. Optimization
services are generally provided at specialized clinics by specially
trained professionals. These mapping or remapping services are not the
responsibility of the lead agency under Part C of the Act.
Although mapping is not an early intervention service, the need for
it and the use of a cochlear implant by an infant or toddler with a
disability may indicate a need for services, some of which would be
considered early intervention services such as speech therapy,
assistive listening devices and auditory training. In addition, for a
child who has been receiving Part C services, the implantation of a
device may require a reevaluation of the child's level of functioning
and review and, if appropriate, revision of the child's IFSP.
Nothing in proposed Sec. 303.13(b)(1)(i) (Assistive technology
device), proposed Sec. 303.13(b)(1)(ii) (Assistive technology
service), and proposed Sec. 303.16(c)(1)(iii) (Health services) would
limit the right of an infant or toddler with a disability with a
surgically implanted device (such as a cochlear implant) and the
child's family to receive the early intervention services that are
determined by the IFSP team to be necessary to meet the unique
developmental needs of the infant or toddler. Thus, although a cochlear
implant is expressly excluded from being an assistive technology device
under Part C of the Act, funds under Part C of the Act may under
certain circumstances be used to pay for a hearing aid. A hearing aid
in general is not covered because it is considered a personal device
used for daily purposes. However, if the hearing aid is identified as a
needed assistive technology device by the infant's or toddler's IFSP
team in order to meet the specific developmental outcomes of the infant
or toddler with a disability, funds under Part C of the Act may be used
to provide this early intervention service.
Proposed Sec. 303.13(b)(2) (Audiology services) would be
substantively unchanged from current Sec. 303.12(d)(2), except that
the term in current Sec. 303.12(d)(2) would be changed from audiology
to audiology services because the section outlines specific audiology
services provided.
Proposed Sec. 303.13(b)(3) (Family training, counseling, and home
visits) would be substantively unchanged from current Sec.
303.12(d)(3).
Proposed Sec. 303.13(b)(4) (Health services) would reference the
definition of health services in proposed Sec. 303.16, consistent with
the reference to the definition of health services in current Sec.
303.12(d)(4).
Proposed Sec. 303.13(b)(5) (Medical services) would be
substantively unchanged from current Sec. 303.12(d)(5) (Medical
services only for diagnostic or evaluation). Proposed Sec.
303.13(b)(5) would clarify that the term medical services means
services provided by a licensed physician for diagnostic or evaluation
purposes to determine a child's developmental status and need for early
intervention services.
Proposed Sec. 303.13(b)(6) (Occupational therapy) would be
substantively unchanged from current Sec. 303.12(d)(8).
Proposed Sec. 303.13(b)(7) (Physical therapy) would be
substantively unchanged from current Sec. 303.12(d)(9).
Proposed Sec. 303.13(b)(8) (Psychological services) would be
substantively unchanged from current Sec. 303.12(d)(10).
Proposed Sec. 303.13(b)(9) (Service coordination services) would
cross-reference the definition of service coordination services in
proposed Sec. 303.33, which substantively includes the language in
current Sec. 303.12(d)(11) regarding the meaning of service
coordination services.
Proposed Sec. 303.13(b)(10) (Social work services) would be
substantively unchanged from current Sec. 303.12(d)(12).
Proposed Sec. 303.13(b)(11) (Special instruction) would be
substantively unchanged from current Sec. 303.12(d)(13).
Proposed Sec. 303.13(b)(12) (Speech-language pathology services)
would reflect the definition of speech-language pathology in current
Sec. 303.12(d)(14) and the language from section 632(4)(E)(iii) of the
Act, which includes sign language and cued language services, such as
speech-language pathology services, as early intervention services. The
definition also would clarify that interpreting or transliteration
services include oral transliteration (such as amplification) services.
The definition would also add that auditory/oral language services
would be used with respect to infants and toddlers with disabilities
who are hearing impaired, which would include services to the infant or
toddler with a disability and the family to teach auditory/oral
language.
Proposed Sec. 303.13(b)(13) (Transportation and related costs)
would be substantively unchanged from current Sec. 303.12(d)(15)
except that we would remove taxi from among the examples because
transportation via taxi is less common than transportation via the
other examples such as common carriers. Proposed Sec. 303.13(b)(14)
(Vision services) would be substantively unchanged from current Sec.
303.12(d)(16).
Proposed Sec. 303.13(c) (Qualified personnel) would be similar to
current Sec. 303.12(e) except for the following changes. As previously
described in the discussion related to proposed Sec. 303.13(b)
regarding the types of early intervention services, registered
dieticians would be included in the list of types of qualified
personnel to reflect the provisions of section 632(4)(F)(viii) of the
Act. The reference to nutritionists in current Sec. 303.12(e)(4) would
not be included in proposed Sec. 303.13(c) consistent with section
632(4) of the Act.
Proposed Sec. 303.13(c)(11) also would provide that teachers of
infants or toddlers with hearing impairments (including deafness) and
teachers of the visually impaired (including blindness) are special
educators. As stated in note 284 of the U.S. House of Representatives
Conference Report No. 108-779 (Conf. Rpt.), the ``Conferees commend the
Office of Special Education and Rehabilitative Services for developing
updated early intervention materials that set out the full range of
options for families with deaf and hard of hearing children who now
have the potential to develop age appropriate language in whatever
modality their parents choose.'' Note 285 in the Conf. Rpt. further
states that ``[t]he conferees intend that the term `special educators'
include `teachers of the deaf'.'' We propose to use the term ``teachers
of the hearing impaired'' rather than the term ``teachers of the deaf''
because the former includes teachers of the deaf, and provides States
with broader flexibility to provide teachers to meet the language and
communication needs of infants or toddlers who are hearing impaired,
including infants and toddlers who are deaf. It is the intent of the
Department and these proposed regulations to continue to ensure that
such qualified personnel are available for infants and toddlers with
hearing impairments including deafness.
The Department requests comment on whether it is necessary to
classify teachers of the visually impaired as special educators as we
have proposed in proposed Sec. 303.13(c)(11). We believe that such
classification in the regulations is necessary to ensure that
[[Page 26460]]
qualified personnel are available for infants and toddlers with visual
impairments, including blindness. Additionally, to conform to section
632(4)(F) of the Act, proposed Sec. 303.13(c)(13) would include vision
specialists, ophthalmologists, and optometrists to meet the service and
sensory needs of infants and toddlers who are visually impaired,
including infants and toddlers who are blind.
The note following current Sec. 303.12 would be removed because
the substance of the note would be reflected in proposed Sec.
303.13(d). Proposed Sec. 303.13(d) would clarify that the lists of
early intervention services and personnel in proposed Sec. 303.13(b)
and (c) are not exhaustive. The list does not preclude the provision of
other early intervention services for an infant or toddler with a
disability and the child's family to enhance the developmental needs of
the child. Such Part C services can include, for example, respite care
if the IFSP team identifies it as a service necessary to enable the
parent of an infant or toddler with a disability to participate in or
receive other early intervention services in order to meet the
developmental outcomes identified on the child's IFSP. In addition,
persons other than those identified in proposed Sec. 303.13(c) could
provide early intervention services provided that the services
otherwise met the requirements of this part.
Proposed Sec. 303.14 (Elementary school) would incorporate the
definition of this term from section 602(6) of the Act. We propose to
add this definition here because Part C of the Act now includes
references to elementary schools in the discussion of a State's option
to make early intervention services under Part C of the Act available
to children ages three and older under sections 632 and 635(c) of the
Act.
Proposed Sec. 303.15 (Free appropriate public education or (FAPE))
would be added to incorporate the definition of FAPE from section
602(9) of the Act, given the State's option to make early intervention
services available to children in lieu of receiving FAPE under sections
632(5)(B)(ii) and 635(c) of the Act.
Proposed Sec. 303.16 (Health services) would be substantively
unchanged from current Sec. 303.13 except that, consistent with the
language in section 602(1) of the Act, the term would not include
optimization (e.g., mapping), maintenance or replacement of surgically
implanted medical devices, including cochlear implants. We have
provided further clarification on the issue of cochlear implants
elsewhere in this preamble in the discussion of the definition of
assistive technology device.
Additionally, proposed Sec. 303.16(c)(1)(iii) would clarify that
an infant or toddler with a surgically implanted device, such as a
cochlear implant, is entitled to receive early intervention services
that are identified on the child's IFSP as being needed to meet the
child's developmental needs, and that nothing under Part C of the Act
prevents the EIS provider from routinely checking either a hearing aid
or external components of a surgically implanted device of an infant or
toddler with a disability to determine whether they are functioning
properly. This clarification in proposed Sec. 303.16(c)(1)(iii) would
be similar to the provision in 34 CFR 300.34(b)(2) of the Part B
regulations (71 FR 46760).
Proposed Sec. 303.16(c)(2), regarding devices necessary to control
or treat a medical condition would be clarified by adding the following
examples of devices that are necessary to control or treat a medical
condition: heart monitors, respirators and oxygen, and gastrointestinal
feeding tubes and pumps.
The note following current Sec. 303.13 would be removed as
unnecessary. The statement in the note regarding the distinction
between health services required under Part C of the Act and services
that are not required under Part C of the Act would be reflected in
proposed Sec. 303.16. The discussion regarding medical and other
services the child needs or is receiving through other sources that are
neither required nor funded under Part C of the Act would be included
in the child's IFSP and addressed in proposed Sec. 303.344(e).
Proposed Sec. 303.17 (Homeless children) would incorporate the
definition of homeless children from section 602(11) of the Act and
would clarify that, for purposes of Part C of the Act, references to
homeless children include only homeless children under the age of
three.
Proposed Sec. 303.18 (Include; including) would remain
substantively unchanged from current Sec. 303.15.
Proposed Sec. 303.19(a) and (b), which provides the definitions of
Indian and Indian tribe, respectively, would incorporate the
definitions of these terms in section 602(12) and 602(13) of the Act.
In addition, proposed Sec. 303.19(c) would clarify that the Bureau of
Indian Affairs (BIA) in the U.S. Department of the Interior, which is
only authorized to provide funding to Federally Recognized tribes, is
not required to provide funding to a State Indian tribe for which the
BIA is not responsible.
Section 602(13) of the Act defines Indian tribe to include ``any
Federal or State Indian tribe'' and does not exclude State Indian
tribes that are not Federally Recognized tribes. The list of Indian
entities recognized as eligible to receive services from the United
States is published in the Federal Register, pursuant to section 104 of
the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a-
1. The Federal government does not maintain a list of other State
Indian tribes. Under section 634(1) of the Act, the lead agency in the
State is responsible for ensuring that early intervention services are
available to all infants and toddlers with disabilities in the State
and their families, including Indian infants and toddlers with
disabilities and their families residing on a reservation
geographically located in the State.
Proposed Sec. 303.20 (Individualized family service plan or IFSP)
would incorporate the language from current Sec. 303.340(b) and would
clarify, consistent with the Act, that the IFSP must be implemented as
soon as possible once parental consent to the early intervention
services on the IFSP is obtained consistent with proposed Sec.
303.420. The definition of IFSP also would provide that an IFSP is
based on the evaluation and assessment described in proposed Sec.
303.320, that it would include the content in proposed Sec. 303.344,
and that it would be developed under the IFSP procedures in proposed
Sec. Sec. 303.342, 303.343, and 303.345.
Proposed Sec. 303.21(a) and (b) (Infant or toddler with a
disability) would remain substantively unchanged from current Sec.
303.16 and would reflect the statutory definition of the term in
section 632(5) of the Act. In addition, the following examples of
diagnosed conditions, listed in Note 1 following current Sec. 303.16,
would be included in proposed Sec. 303.21(a)(2)(ii) as follows:
chromosomal abnormalities, genetic or congenital disorders, severe
sensory impairments, inborn errors of metabolism, disorders reflecting
disturbance of the development of the nervous system, and disorders
secondary to exposure to toxic substances, including fetal alcohol
syndrome. With this change, Note 1 following current Sec. 303.16 would
be removed from the regulations. Note 2 following current Sec. 303.16
would also be removed as the examples of at-risk infants or toddlers
with disabilities would be incorporated into proposed Sec. 303.5, the
definition of at-risk infant or toddler.
Proposed Sec. 303.21(b) would be substantively the same as current
[[Page 26461]]
Sec. 303.16(b), and would cross-reference the definition of an at-risk
infant or toddler in proposed Sec. 303.5.
Proposed Sec. 303.21(c) would incorporate the language from
section 632(5)(B) of the Act that an infant or toddler with a
disability may include, at the State's discretion, children with
disabilities who are ages three and older who are eligible for services
under section 619 of the Act and who previously received Part C
services.
Proposed Sec. 303.22 (Lead agency) would be added to make clear
that the lead agency is the State agency designated by the Governor to
administer Part C of the Act in the State and would incorporate
language from section 635(a)(10) of the Act.
Proposed Sec. 303.23 (Local educational agency or LEA) would be
added to incorporate the definitions of LEA and educational service
agency under sections 602(19) and 602(5) of the Act, respectively. We
would include these definitions because these terms are relevant to the
State option to make early intervention services available to children
ages three and older under sections 632 and 635(c) of the Act. In
addition we would incorporate the applicable 1997 definition of the
intermediate educational unit (IEU) in order to create a freestanding
document and assist those lead agencies that are not SEAs.
Proposed Sec. 303.24 (Multidisciplinary) would modify the
definition in current Sec. 303.17 to clarify that the term
multidisciplinary is used with respect to an evaluation and assessment
of a child, an IFSP team, or IFSP development, and means the
involvement of two or more individuals from separate disciplines or
professions, or one individual who is qualified in more than one
discipline or profession.
Proposed Sec. 303.25(a)(1) (Native language) would incorporate the
definition of native language from section 602(20) of the Act and
current Sec. 303.401(b). Proposed Sec. 303.25(a)(2) would provide
that in all direct contact with the child, the native language is that
normally used by the child in the home or the learning environment.
This addition would be consistent with the definition of this term in
34 CFR 300.29 of the Part B regulations (71 FR 46759-46760) and is
appropriate here because it would clarify the language an EIS provider
must use when providing services to the child. Proposed Sec. 303.25(b)
would reflect the requirements in current Sec. 303.403(c)(3) and would
clarify that, when used in connection with an individual with deafness
or blindness or with no written language, ``native language'' refers to
the mode of communication that is normally used by that individual,
such as sign language, Braille, or oral communication.
Proposed Sec. 303.26 (Natural environments) would remain
substantively unchanged from current Sec. 303.18, and would add that
the natural environment may include the home, and must be consistent
with proposed Sec. 303.126.
Proposed Sec. 303.27 (Parent) would modify the regulatory
definition of that term in current Sec. 303.19 to reflect the revised
statutory definition of parent in section 602(23) of the Act, and to be
consistent with the definition of parent in 34 CFR 300.30 of the Part B
regulations (71 FR 46760). Proposed Sec. 303.27(a)(2) would recognize
that State law may prohibit a foster parent from being considered a
parent, but also would recognize that similar restrictions may exist in
State regulations or in contractual agreements between a State or local
entity and the foster parent, and should be accorded similar deference.
Proposed Sec. 303.27(b)(1) would provide that the biological or
adoptive parent would be presumed to be the parent for purposes of the
regulations. If the biological or adoptive parent were attempting to
act as the parent under proposed Sec. 303.27 and more than one person
is qualified to act as a parent under Part C of the Act, the biological
or adoptive parent would be presumed to be the parent unless that
person does not have legal authority to make decisions for the infant
or toddler regarding early intervention services, or there is a
judicial order or decree specifying some other person to act as the
parent under Part C of the Act. Proposed Sec. 303.27(b)(2) would
provide that if a judicial order or decree specifies a person or
persons to act as the parent, that person would be the parent under
Part C of the Act. Proposed Sec. 303.27(b)(2), however, would exclude
an agency involved in providing early intervention services or care of
the infant or toddler from serving as a parent, consistent with the
statutory prohibition that applies to surrogate parents in section
639(a)(5) of the Act. The provisions in proposed Sec. 303.27(b) are
intended to assist EIS providers and public agencies in identifying the
appropriate person to serve as the parent under Part C of the Act,
especially in those difficult situations in which more than one
caretaker is available to provide consent for evaluation or the
provision of early intervention services and to make other decisions
under Part C of the Act.
Proposed Sec. 303.28 (Parent training and information center)
would provide that a parent training and information center means a
center assisted under section 671 or 672 of the Act, in accordance with
the statutory definition in section 602(25) of the Act.
Proposed Sec. 303.29 (Personally identifiable) would remain
substantively unchanged from current Sec. 303.401(c).
Proposed Sec. 303.30 (Public agency) would remain substantively
unchanged from current Sec. 303.21.
Proposed Sec. 303.31 (Qualified personnel) would remain
substantively unchanged from the definition of qualified in current
Sec. 303.22. In addition, the note following current Sec. 303.22
would be removed because the content of that note would be addressed in
proposed Sec. 303.13(c) regarding the types of qualified personnel who
provide early intervention services and proposed Sec. 303.119
regarding the requirement that statewide systems have policies and
procedures in place relating to personnel standards.
Proposed Sec. 303.32 (Secretary) would incorporate the definition
of Secretary from section 602(28) of the Act.
Proposed Sec. 303.33 (Service coordination services (case
management)) would replace current Sec. 303.23. Proposed Sec.
303.33(a) would provide a definition of service coordination services
and explain that these services include, consistent with current Sec.
303.23(a), coordinating all services required under Part C of the Act
across agency lines (i.e., coordinating Part C services provided by
agencies other than the lead agency). Proposed Sec. 303.33(a)(2) would
clarify that: service coordinators must assist parents of infants and
toddlers with disabilities in gaining access to and coordinating the
provision of early intervention services and coordinating other
services not provided under Part C of the Act that are needed by the
infant or toddler with a disability and that child's family and that
are identified on the IFSP in accordance with proposed Sec.
303.344(e). Proposed Sec. 303.33 would not require service
coordinators to be responsible for identifying funding sources for
those services not covered under Part C of the Act and identified as
``other services'' on the IFSP under proposed Sec. 303.344(e).
Proposed Sec. 303.33(a)(3) and (b) would continue to reflect that
service coordinators are responsible for serving as the single point of
contact for carrying out the responsibilities under proposed Sec.
303.33(b). Proposed Sec. 303.33(b) would require service coordinators
to be responsible for coordinating the performance of evaluations and
assessments, facilitating
[[Page 26462]]
and participating in the development of IFSPs, assisting families in
identifying available Part C services, coordinating and monitoring the
delivery of early intervention services required under Part C of the
Act, informing families of their rights and procedural safeguards and
related resources, coordinating the funding sources for early
intervention services, and facilitating the development of a transition
plan from the Part C program to other services. Proposed Sec.
303.33(c) would incorporate the language from Note 2 following current
Sec. 303.23 to clarify that the lead agency's or an EIS provider's use
of the term service coordination or service coordination services does
not preclude characterization of the services as case management or any
other service that is covered by another payor (including Medicaid),
for purposes of claims in compliance with the requirements of proposed
Sec. 303.510 regarding the payor of last resort. With this
clarification, Note 2 following current Sec. 303.23 would be removed.
Current Sec. 303.23(c) (Employment and assignment of service
coordinators) and (d) (Qualification of service coordinators) would not
be included in proposed Sec. 303.33 because, under proposed Sec.
303.13(a)(7), service coordination services must be provided by
qualified personnel as that term is defined in proposed Sec. 303.31.
Under the definition of qualified personnel, personnel are qualified if
they have met State approved or recognized certification, licensing,
registration, or other comparable requirements that apply to the area
in which the individuals are providing early intervention services.
Some States, for example, have developed qualified personnel criteria
under Part C of the Act for an ``early interventionist'' who is able to
provide service coordination services and other Part C services.
Consistent with the content of Note 1 following current Sec. 303.23,
and as addressed elsewhere in this preamble in the discussion related
to proposed Sec. 303.119, the requirements for a service coordination
system that includes the qualifications, employment, and assignment of
service coordinators is best left to the States to decide. With this
clarification Note 1 would be removed.
Proposed Sec. 303.34 (State) would remain substantively unchanged
from current Sec. 303.24, and would reflect the definition of this
term in section 602(32) of the Act.
Proposed Sec. 303.35 (State educational agency or SEA) would be
defined to distinguish it clearly as the State agency that receives
funds under Part B of the Act and that is responsible for administering
Part B of the Act (in contrast to the lead agency which may or may not
be the SEA and which is responsible for implementing Part C of the Act
in the State).
Proposed Sec. 303.36 (Ward of the State) would be added to these
regulations to reflect the definition in section 602(36) of the Act.
Proposed Sec. 303.36(b), regarding an exception to the ward of the
State, would be added to clarify that a ward of the State does not
include a foster child who has a foster parent who meets the definition
of a parent in proposed Sec. 303.27.
Current Sec. 303.20, which provides the definition of policies,
would be removed because the requirements for State policies are
contained in the State application requirements for a grant under Part
C of the Act and proposed Sec. Sec. 303.201 through 303.212.
Subpart B--State Eligibility for a Grant and Requirements for a
Statewide System
Proposed subpart B would incorporate the Secretary's general
authority to make grants to States under section 633 of the Act, the
State eligibility provisions under section 634 of the Act, and the
requirements for a statewide system under section 635 of the Act.
Section 633 of the Act gives the Secretary the authority to make grants
to States. In order to be eligible for a grant under this subpart,
section 634(1) of the Act requires a State to provide assurances that
it has adopted a policy that appropriate early intervention services
are available to all infants and toddlers with disabilities in the
State and their families. Section 634 of the Act requires a State to
provide assurances that its statewide system includes the components
listed in section 635 of the Act; section 634 of the Act no longer
requires States to submit to the Department policies and procedures
that demonstrate each of the components. Other specific State
application requirements (policies, procedures, certifications,
descriptions, and assurances) in section 637 of the Act would be
incorporated into subpart C of these regulations.
General Authority and Eligibility
Proposed Sec. 303.100 would incorporate the language of section
633 of the Act, providing for the Secretary's authority to make grants
to States to maintain and implement a statewide system to provide early
intervention services for infants and toddlers with disabilities and
their families.
Proposed Sec. 303.101 would identify the conditions that States
must meet to be eligible for a grant under Part C of the Act and would
replace current Sec. Sec. 303.100 and 303.140. Proposed Sec.
303.101(a)(1) would incorporate the language from section 634 of the
Act, which requires each State receiving funds under Part C of the Act
to assure that the State has adopted a policy that early intervention
services are available to all infants and toddlers with disabilities in
the State and their families, including Indian infants and toddlers on
reservations in the State, and infants and toddlers who are homeless
and their families, and infant and toddlers who are wards of the State.
Proposed Sec. 303.101(a)(2) would modify current Sec. 303.100(a)(2)
and require each State to assure that the State has in effect a
statewide system of early intervention services that meets the
requirements of section 635 of the Act, including, at a minimum, the
components required in proposed Sec. Sec. 303.111 through 303.126.
The requirement in current Sec. 303.100(b) that States have
policies or procedures on file with the Secretary would be removed
consistent with section 634 of the Act, which requires that States
submit assurances regarding the statewide system requirements under
section 635 of the Act. Consistent with this approach, all other
provisions in current subpart B that require the policies and
procedures to be on file with the Secretary would be removed.
Proposed Sec. 303.101(b) would identify other information and
assurances that States would be required to provide to the Secretary,
consistent with section 637 of the Act, to demonstrate that the State
meets the State application requirements in proposed Sec. Sec. 303.200
through 303.212.
Current Sec. 303.101, regarding how the Secretary disapproves a
State's application, would be substantively included in proposed Sec.
303.230.
Current Sec. Sec. 303.110 and 303.111, regarding requirements and
timelines for public participation and notice of public hearings and
opportunity to comment, respectively, would be substantively included
in proposed Sec. 303.208.
Current Sec. 303.112, regarding public hearings, would be
substantively included in proposed Sec. 303.208(a)(1).
Current Sec. 303.113, regarding the review of public comments by
the lead agency prior to adopting the State's application, would be
removed because it is not specifically addressed in section 637 of the
Act.
Current Sec. 303.120(b) and (c) would be removed because the
application requirements under Part C of the Act, including the
assurances that meet the
[[Page 26463]]
requirements in section 637(b) of the Act, are referenced in proposed
Sec. 303.101(b). The assurance requirements in section 637(b) of the
Act would be reflected in proposed Sec. Sec. 303.221 through 303.227.
State Conformity With Part C of the Act and Abrogation of State
Sovereign Immunity
Proposed Sec. 303.102, consistent with section 608(a)(1) of the
Act, would require each State that receives funds under Part C of the
Act to ensure that any State rules, regulations, and policies relating
to this part conform to the purposes and requirements of the part.
Proposed Sec. 303.103 would incorporate the provisions of section
604 of the Act regarding abrogation of State immunity. Proposed Sec.
303.103(a) would provide that a State is not immune under the 11th
amendment of the Constitution of the United States from suit in Federal
court for a violation of Part C of the Act. This is the longstanding
position of the Department and is consistent with section 604 of the
Act and Federal Circuit Courts' decisions interpreting this language.
See, e.g., Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir.,
2005), cert. denied, 126 S.Ct. 416 (2005); M.A. ex rel E.S. v State-
Operated Sch. Dist., 344 F.3d 335 (3rd Cir. 2003); Little Rock Sch.
Dist. v. Mauney, 183 F.3d 816 (8th Cir. 1999); Marie O. v. Edgar, 131
F.3d 610 (7th Cir. 1997).
Proposed Sec. 303.103(b) would incorporate the requirements of
section 604(b) of the Act regarding remedies in a suit against a State
for a violation.
Proposed Sec. 303.103(c), which incorporates section 604(c) of the
Act, would provide that proposed Sec. 303.103(a) and (b) applies to
violations that occur in whole or in part after October 1990.
Equipment and Construction
Proposed Sec. 303.104 would incorporate language from section 605
of the Act, relating to the acquisition of equipment, construction or
alteration of facilities. This section would provide guidance to lead
agencies regarding the use of funds for facility construction impacted
by Part C of the Act.
Positive Efforts To Employ and Advance Qualified Individuals With
Disabilities
We are proposing to add new section Sec. 303.105 to reflect the
provisions in section 606 of the Act, which require the Secretary to
ensure that each grant recipient under IDEA make positive efforts to
employ and advance in employment, qualified individuals with
disabilities in programs assisted under IDEA.
Minimum Components of a Statewide System
Proposed Sec. 303.110 would be substantively the same as current
Sec. 303.160, which refers to the minimum components of a statewide
system, and would specifically reference the requirements in proposed
Sec. Sec. 303.111 through 303.126, which align with section 635(a)(1)
through (16) of the Act.
Proposed Sec. 303.111 would align with section 635(a)(1) of the
Act and would replace current Sec. Sec. 303.161 and 303.300. Proposed
Sec. 303.111 would require the statewide system to include a rigorous
definition of developmental delay in order to appropriately identify
infants and toddlers with disabilities who need early intervention
services, consistent with section 635(a)(1) of the Act and proposed
Sec. Sec. 303.10 and 303.203(c).
Proposed Sec. 303.111(a) would generally retain current Sec.
303.300(a)(1) and would require the State to include in its definition
of developmental delay the evaluation and assessment procedures that
would be used to measure an infant's or toddler's development.
References to informed clinical opinion as one of the procedures used
to measure an infant's or toddler's development in current Sec.
303.300(a)(1) would be moved to proposed Sec. 303.320(b)(2).
Proposed Sec. 303.111(b) would generally retain the requirements
of current Sec. 303.300(a)(2) and would require the State to describe
the level of developmental delay in functioning or other comparable
criteria that could constitute a developmental delay.
Current Sec. 303.300(c) requires States that serve at-risk infants
and toddlers to describe the criteria and procedures used to identify
those infants and toddlers. Current Sec. 303.300(c) would be removed
because proposed Sec. 303.320(b)(2) would clarify that qualified
personnel must use their informed clinical opinion to evaluate a
child's present level of functioning in each of the developmental areas
identified in proposed Sec. 303.21(a)(1) and that informed clinical
opinion may be used by qualified personnel to establish a child's
eligibility for services under Part C of the Act even when other
instruments do not establish eligibility.
The note following current Sec. 303.300(c), regarding the required
use of informed clinical opinion to determine an infant's or toddler's
eligibility for services, would be moved to proposed Sec. 303.320
regarding evaluation requirements and is addressed in the discussion of
subpart D of these regulations.
Proposed Sec. 303.112 would be added to incorporate the language
from section 635(a)(2) of the Act and would require each statewide
system to have a State policy in effect that ensures that early
intervention services are based on scientifically based research, to
the extent practicable, and are available to all infants and toddlers
with disabilities and their families, including Indian infants and
toddlers with disabilities and their families residing on a reservation
geographically located in the State, and infants and toddlers with
disabilities and their families who are homeless.
Proposed Sec. 303.113, which would align with section 635(a)(3) of
the Act, would replace current Sec. 303.166, and would require each
statewide system to ensure a timely, comprehensive, multidisciplinary
evaluation of each infant or toddler with a disability in the State,
and a family-directed identification of the needs of each infant's or
toddler's family to assist appropriately in the development of the
infant or toddler. Proposed Sec. 303.113(b) would cross-reference the
provisions in proposed Sec. 303.320. These cross-references are
necessary because the specific requirements for evaluations would be
included in proposed Sec. 303.320.
Proposed Sec. 303.114 would generally retain the provisions in
current Sec. 303.167(a) and (b) and would require each statewide
system to develop an IFSP for each infant or toddler with a disability
in the State, consistent with section 635(a)(4) of the Act. Current
Sec. 303.167(c) would be removed because the requirements regarding
IFSPs and natural environments would be included in proposed Sec. Sec.
303.13(a)(8), 303.26, and 303.344(d)(1)(ii).
Proposed Sec. 303.115, regarding a comprehensive child find
system, would align with section 635(a)(5) of the Act and would replace
current Sec. 303.165. The provisions in current Sec. 303.321
regarding a comprehensive child find system would be incorporated in
proposed Sec. Sec. 303.301 through 303.303, which would be cross-
referenced in proposed Sec. 303.115. Proposed Sec. 303.115 would
require each statewide system to have a comprehensive child find system
that meets the requirements in proposed Sec. Sec. 303.301 through
303.303; these requirements include that a State's comprehensive child
find system be consistent with Part B of the Act and that it ensures
rigorous standards to identify infants and toddlers with disabilities
for services under Part C of the Act that will reduce the need for
future services.
[[Page 26464]]
Proposed Sec. 303.116, regarding public awareness, would align
with section 635(a)(6) of the Act and would replace current Sec.
303.164. Proposed Sec. 303.116, consistent with section 635(a)(6) of
the Act, would set forth the requirements for the statewide system's
public awareness program, which would focus on early identification of
infants and toddlers with disabilities and provide information to
parents of infants and toddlers through primary referral sources.
Proposed Sec. 303.117, regarding the requirements for a central
directory, would align with section 635(a)(7) of the Act and would
combine the requirements of current Sec. Sec. 303.162 and 303.301(a).
The provisions in current Sec. 303.301(c) requiring the central
directory to be up-to-date and accessible to the general public
generally would be included in the introductory text of proposed Sec.
303.117. Proposed Sec. 303.117, however, would also clarify that the
lead agency must ensure that the central directory is accessible
through the lead agency's Web site and other appropriate means as the
requirement in current Sec. 303.301(d) that the lead agency arrange
for copies of the directory to be available in each geographic region
of the State is no longer necessary, as the vast majority of States
maintain the directory on their Web sites. Current Sec. 303.301(b),
which includes the details of the content of the central directory and
current Sec. 303.301(d), which includes the locations and manners of
accessibility, would be removed. Most States now maintain this
information on their Web site and can easily update it more quickly
than is required under current Sec. 303.301.
The note following current Sec. 303.301, which gives examples of
appropriate groups that provide assistance to infants and toddlers with
disabilities and families, would be removed as unnecessary. Proposed
Sec. 303.117 would include language regarding appropriate groups that
would provide assistance to infants and toddlers with disabilities and
their families, including public and private early intervention
services, resources and experts available in the State, and parent
support and training and information centers such as those funded under
the Act.
Proposed Sec. 303.118, regarding the comprehensive system of
personnel development (CSPD), would replace current Sec. Sec. 303.168
and 303.360 to parallel the requirements and order of section 635(a)(8)
of the Act. The introductory paragraph of proposed Sec. 303.118 would
combine the provisions in current Sec. 303.360(b)(3) and (4), and
would require each statewide system to include a CSPD that addresses
the training of paraprofessionals and primary referral sources with
respect to the basic components of early intervention services in the
State.
Proposed Sec. 303.118(a) would replace current Sec.
303.360(c)(1), (2), and (4), and would, consistent with section
635(a)(8)(A) of the Act, list the training that now must be included in
the CSPD. Proposed Sec. 303.118(a)(1) would retain the language in
current Sec. 303.360(c)(1) regarding training on innovative strategies
to recruit and retain EIS providers. Proposed Sec. 303.118(a)(2) would
retain the language in current Sec. 303.360(c)(2) regarding promoting
the preparation of EIS providers who are fully and appropriately
qualified. Under current Sec. 303.360(c)(1) and (2), including this
training in the CSPD was permissive. Consistent with section
635(a)(8)(A) of the Act, however, the training in proposed Sec.
303.118(a)(1) and (2) would be required to be included in the CSPD.
Proposed Sec. 303.118(a)(3), regarding training personnel to
coordinate transition services, would generally retain the language in
current Sec. 303.360(c)(4) and would reference a preschool program
under Part B of the Act, Head Start, Early Head Start, and an
elementary school under Part B of the Act as programs to which children
receiving services under Part C of the Act may transition to,
consistent with sections 635(a)(8)(A)(iii) and 637(a)(10) of the Act.
Consistent with sections 635(a)(8)(A) and (c) and 637(a)(10) of the
Act, including this training in the CSPD would now be mandatory.
Proposed Sec. 303.118(b)(1) would retain current Sec.
303.360(c)(3) and would allow (but not specifically require, consistent
with section 635(a)(8)(B)(i) of the Act) training for personnel to work
in rural and inner-city areas. Proposed Sec. 303.118(b)(2) would
replace current Sec. 303.360(b)(4)(ii) and would allow training of
personnel in the emotional and social development of infants and
toddlers, consistent with section 635(a)(8)(B)(ii) of the Act. Proposed
Sec. 303.118(b)(3) would replace current Sec. 303.360(b)(4)(iii) and
would clarify that States may train personnel to support families to
participate fully in the development and implementation of their
child's IFSP.
References in current Sec. 303.360(b)(3) and (c)(2) to training a
variety of personnel needed to meet the requirements of the
regulations, including the training of service coordinators, would be
removed as redundant. Proposed Sec. 303.119(a) requires States to have
policies and procedures to ensure that personnel necessary to carry out
the purposes of this part are appropriately and adequately prepared and
trained.
Current Sec. 303.360(b)(1), regarding consistency with the CSPD
under Part B of the Act, would be removed because Part B of the Act was
revised to eliminate references to a CSPD. Current Sec. 303.360(b)(2),
requiring that preservice and inservice training be conducted on an
interdisciplinary basis, to the extent appropriate, would be removed
because whether to conduct preservice and inservice training that
includes an interdisciplinary methodology or other methodology, is a
decision best left to the States because each State determines the
qualifications needed for personnel providing services under Part C of
the Act.
Proposed Sec. 303.119, regarding personnel standards, would
combine current Sec. 303.169 and relevant provisions in current Sec.
303.361 to parallel the requirements of section 635(a)(9) of the Act.
Proposed Sec. 303.119(a) would substantively retain language from
current Sec. 303.361(b)(1) to clarify that each system must include
policies and procedures relating to the establishment and maintenance
of qualification standards to ensure that personnel are appropriately
and adequately trained.
Consistent with section 635(a) of the Act and current Sec.
303.361(b)(2), proposed Sec. 303.119(b) would require the
establishment and maintenance of qualification standards, to be
consistent with any State-approved or State-recognized certification,
licensing, registration, or other comparable requirements, and to apply
to the profession, discipline, or area in which personnel are providing
early intervention services.
Current Sec. 303.361(a), (c), (d), and (e) would be removed,
consistent with statutory changes that removed the requirement that
State's policies and procedures include the steps for retraining or
hiring personnel when the State's personnel standards are not based on
the State's requirements for these personnel.
Proposed Sec. 303.119(c), allowing the use of appropriately
trained and supervised paraprofessionals and assistants to assist in
the provision of early intervention services, would replace and
substantively be the same as current Sec. 303.361(f).
Proposed Sec. 303.119(d), which allows a State to adopt a policy
to hire the most qualified individuals available who are making
satisfactory progress toward completing applicable coursework necessary
to meet the State's personnel standards, would be the same as current
[[Page 26465]]
Sec. 303.361(g), except that the requirement that those persons work
to complete the necessary course work in three years would be removed
because of the removal of this three-year requirement from section
635(a)(9) of the Act.
The note following current Sec. 303.361 would be removed because
the first paragraph in the note addresses the requirement that
personnel standards be based on the State's highest standard, which was
removed from the Act. The second paragraph in the note following
current Sec. 303.361, regarding a State's ability to establish
standards, would be removed as unnecessary because the licensure and
other standards for occupational categories have always been subject to
State, not Federal, standards, and States have always had the
flexibility to establish standards higher than Federal standards in
this area.
Proposed Sec. 303.120, regarding supervision, monitoring, funding,
interagency coordination, and other lead agency responsibilities would
combine current Sec. Sec. 303.171, 303.500, and 303.501 to parallel
the organization and content of section 635(a)(10) of the Act.
The introductory paragraph in proposed Sec. 303.120 would
incorporate the requirement in section 635(a)(10) of the Act and
current Sec. 303.500 that each statewide system include a single line
of responsibility in a lead agency designated or established by the
Governor.
Proposed Sec. 303.120(a)(1) through (a)(2)(iv) would remain
substantively unchanged from current Sec. 303.501(a) and (b)(1)
through (b)(4), except that proposed Sec. 303.120(a)(2)(iv), regarding
the correction of noncompliance identified through monitoring, would
add that the correction must be made as soon as possible and in no case
later than one year after the lead agency's identification of the
noncompliance. We are proposing that the correction be made as soon as
possible and in no case later than one year after the lead agency's
identification of the noncompliance because, based on our monitoring
activities, we have determined that correction of noncompliance does
not always occur in a timely manner. Proposed Sec. 303.120(a)(2)(iv)
would align with proposed Sec. 303.700(e) to clarify expectations
regarding the timely correction of noncompliance. It is important to
correct noncompliance in a timely manner to ensure that infants and
toddlers with disabilities and their families receive appropriate early
intervention services. Correction of noncompliance means that the State
required the EIS program or EIS provider to revise any noncompliant
policies, procedures and/or practices and the State has verified
through follow-up review of data, other documentation and/or interviews
that the noncompliant policies, procedures and/or practices have been
revised and the noncompliance has been corrected. We believe that one
year is a reasonable amount of time for the State to verify the
correction of policies, procedures and/or practices.
Proposed Sec. 303.120(a)(2)(v), regarding the activities related
to monitoring agencies, would reference the monitoring and enforcement
requirements in proposed Sec. Sec. 303.700 through 303.707 that the
lead agency must meet in implementing the requirements of proposed
Sec. 303.120(a)(2)(i) through (iv).
Proposed Sec. Sec. 303.700 through 303.706 would align with 34 CFR
300.600 through 300.606 of the Part B regulations (71 FR 46800-46802).
Proposed Sec. 303.707 would reference the authority under GEPA for
monitoring and enforcement, including the imposition of special
conditions in 34 CFR Sec. 80.12. Proposed Sec. 303.708 would clarify
continued State flexibility to use other available authorities to
monitor and enforce the requirements of Part C of the Act.
Proposed Sec. 303.120(b), which would require the lead agency to
identify and coordinate all available resources for early intervention
services in the State, would incorporate the language in section
635(a)(10)(B) of the Act and would be the same as current Sec.
303.522(a)(1). Proposed Sec. 303.120(c) through (f) would reference
requirements in proposed subpart F regarding use of funds and would be
added to conform to section 635(a)(10)(C) through (F) of the Act.
Proposed Sec. 303.120(f) would indicate that in addition to formal
interagency agreements, there may be other written methods of
establishing financial responsibility consistent with proposed Sec.
303.511 because proposed Sec. 303.511(a)(3) would clarify that
appropriate written methods may be used for establishing financial
responsibility, as determined by the Governor of the State, or the
Governor's designee, and approved by the Secretary through the review
and approval of the State's application.
Proposed Sec. 303.121, regarding contracting or otherwise
arranging for services, would replace the requirements in current
Sec. Sec. 303.175 and 303.526, consistent with section 635(a)(11) of
the Act. Proposed Sec. 303.121 would require each statewide system to
include a policy for contracting or making other arrangements with
public or private providers for services. Proposed Sec. 303.121(a)
would incorporate the provision in current Sec. 303.526(a) regarding
the State policy including a requirement that all early intervention
services meet State standards and be consistent with Part C of the Act.
Proposed Sec. 303.121(b) would add a reference to the requirements
found in part 80 of the Education Department General Administrative
Regulations (EDGAR). This is not a new requirement because current
Sec. 303.5 already provides that EDGAR requirements, including part
80, apply to grant recipients under Part C of the Act. Current Sec.
303.526(b) and (c) would be removed as redundant because these
requirements are found in EDGAR provisions in 34 CFR part 80, and
compliance with 34 CFR part 80 would be required by proposed Sec.
303.121.
The note following current Sec. 303.526, regarding the option to
continue using public and private personnel who meet the requirements
of Part C of the Act as service providers, would be removed because
proposed Sec. 303.12 (the definition of EIS provider) would clarify
that States may use public or private entities or individuals to
provide early intervention services. The content of the note following
current Sec. 303.526 would not provide additional information or
clarity to proposed Sec. 303.12.
Proposed Sec. 303.122, regarding reimbursement procedures, would
incorporate language from section 635(a)(12) of the Act and would
remain substantively unchanged from current Sec. 303.528, with cross-
references updated.
Proposed Sec. 303.123, which would incorporate language from
section 635(a)(13) of the Act, would replace current Sec. 303.170 and
would require each statewide system to meet the procedural safeguard
requirements in subpart E of these proposed regulations.
Proposed Sec. 303.124, regarding data collection procedures, would
incorporate the requirements of section 635(a)(14) of the Act and would
adopt by reference the Part C data requirements in sections 616 and 618
of the Act that are reflected in proposed Sec. Sec. 303.700 through
303.702 and proposed Sec. Sec. 303.720 through 303.724. Proposed Sec.
303.124 would require States to adopt data systems for reporting the
data to the Secretary and would generally include the language in
current Sec. Sec. 303.176 and 303.540.
Consistent with the reporting requirements in sections 616 and 618
of the Act, proposed Sec. 303.124(a) would
[[Page 26466]]
include language indicating that the statewide system must compile and
report data that are timely and accurate to align with the reporting
requirements in Sec. Sec. 303.700 through 303.702 and 303.720 through
303.724. The references to timely and accurate reporting on State data
in proposed Sec. 303.124(a) are necessary for the Department to
implement section 616 of the Act. The requirements regarding
disproportionality in section 618(d) of the Act do not apply to Part C
of the Act because the findings in section 601(c)(12) of the Act make
clear that these provisions were enacted to reflect concerns under Part
B of the Act, not Part C of the Act.
Proposed Sec. 303.124(b) would require the data collection process
to include a description of the sampling methods, if used by the State
to collect data in accordance with proposed Sec. Sec. 303.701(c)(2)
and 303.722(b).
Proposed Sec. 303.125, regarding the Council, would incorporate
the language in section 635(a)(15) of the Act and current Sec. 303.141
and would require the statewide system to include a Council. This
section also would cross-reference subpart G of these proposed
regulations, which would contain the specific requirements for the
Council.
Proposed Sec. 303.126, regarding the provision of early
intervention services in natural environments to the maximum extent
appropriate, would align with section 635(a)(16) of the Act and would
generally remain substantively unchanged from current Sec. Sec.
303.12(b) and 303.344(d)(1)(ii).
Proposed Sec. 303.126(b) would add language from section
635(a)(16) of the Act requiring that, when early intervention cannot be
achieved satisfactorily in a natural environment, it must be provided
in a setting that is most appropriate, as determined by the parent and
the IFSP team. Proposed Sec. 303.126 would not change the longstanding
requirements regarding the provision of early intervention services in
an infant's or toddler's natural environment and would be read in
conjunction with proposed Sec. 303.344(d)(1)(ii)(B), which would
clarify that any justification for providing an early intervention
service in a setting other than the infant's or toddler's natural
environment must be based on the child's outcomes identified by the
IFSP team in the infant's or toddler's IFSP.
Subpart C--State Application and Assurances
Proposed subpart C would contain the specific State application
content requirements that are reflected in section 637 of the Act.
Proposed Sec. 303.200(a) would require each application to contain
the specific requirements in proposed Sec. Sec. 303.201 through
303.212, which would incorporate, respectively, the requirements in
section 637(a)(1) through (11) of the Act. Proposed Sec. 303.200(b)
would require each application to contain assurances that the State has
met the requirements under proposed Sec. Sec. 303.220 through 303.227,
which would incorporate, respectively, the assurance requirements in
section 637(b)(1) through (7) of the Act.
Application Requirements
Proposed Sec. 303.201 would require each application to include a
designation of the lead agency in the State responsible for the
administration of funds. The proposed regulation would be the same as
current Sec. 303.142, consistent with section 637(a)(1) of the Act.
Proposed Sec. 303.202 would require each application to include a
certification that the arrangements to establish financial
responsibility for the provision of services under Part C of the Act
among appropriate public agencies under proposed Sec. 303.511 and the
lead agency's contracts with EIS providers regarding financial
responsibility for the provision of Part C services meet the
requirements in proposed Sec. Sec. 303.500 through 303.521 and are
current as of the date of submission of the certification. Proposed
Sec. 303.202 would replace current Sec. 303.143, consistent with
section 637(a)(2) of the Act. Proposed Sec. 303.202 cross-references
proposed Sec. Sec. 303.500 through 303.521 and requires the
arrangements to establish financial responsibility for the provision of
Part C services to be current as of the date of the certification,
consistent with a change to section 637(a)(2) of the Act.
Proposed Sec. 303.203 would require each application to include:
(a) A description of the services to be provided; (b) the State's
policies on funding sources (including any system of payments); and (c)
the State's rigorous definition of developmental delay, as required
under proposed Sec. Sec. 303.10 and 303.111 and section 637(a)(3)(A)
of the Act. These three elements are key variables in State Part C
systems and the Department needs this information in the application to
understand each State's Part C system and interpret data from each
State under sections 616, 618, and 642 of the Act.
Proposed Sec. 303.204, which aligns with section 637(a)(4) of the
Act, would require each State that provides services to at-risk infants
and toddlers with disabilities to include the State's definition of at-
risk infants and toddlers with disabilities in its State application.
This information is necessary to appropriately interpret child find and
other data required to be reported by States under sections 616, 618,
and 642 of the Act. Proposed Sec. 303.204(b) would require each
application to include, consistent with section 637(a)(4) of the Act, a
description of the early intervention services to be provided to at-
risk infants and toddlers with disabilities if the State elects to
serve such children.
Proposed Sec. 303.205(a) would be substantively the same as
current Sec. 303.145(a) and would continue to require each application
to include a description of the use of funds, presented separately for
the lead agency and the Council.
Proposed Sec. 303.205(b) would require lead agencies, other than
SEAs, to identify the total amount the lead agency will retain for
State administration. Additionally, proposed Sec. 303.205(b) would
require those lead agencies, other than SEAs, to include the total
number of full time equivalent administrative positions and the total
salaries, including benefits, for these positions, rather than
position-specific descriptions and detailed itemized salary information
as in current Sec. 303.145(b). SEAs are excluded from this requirement
because the Department is the cognizant Federal agency for SEAs for
purposes of determining the State's restricted indirect cost rate under
Parts B and C of IDEA. However for lead agencies that are not SEAs, the
Department often does not obtain any other information about the lead
agency's administrative expenses. This proposed change to report on
aggregated administrative expenses would reduce the burden on States
when reporting costs, positions, and salaries for State administration.
Proposed Sec. 303.205(c) would generally be the same as current
Sec. 303.145(c) and would require each application to include a
description of each major activity and the funds to be spent on each
activity, consistent with proposed Sec. 303.501. Proposed Sec.
303.205(d) would generally be the same as current Sec. 303.145(d)(1)
and (2)(ii), with updated cross-references, and would require each
State application to include a description of any direct services the
State expects to provide using Federal Part C funds and the approximate
amount of funds to be used for the provision of each direct service.
[[Page 26467]]
Proposed Sec. 303.205(e) would be the same as current Sec.
303.145(f) and would require the application to include information on
other agencies expected to receive funds under this part. This
information is required in the application because of interagency
funding provisions and the interagency coordination provisions in
sections 635(a)(10)(B) and (F), and 637(a)(3) and (5) of the Act.
Proposed Sec. 303.206 would be added to align with section
637(a)(6) of the Act. Proposed Sec. 303.206 would require each
application to include the State's policies and procedures that require
the referral for early intervention services of a child under the age
of three who is involved in a substantiated case of child abuse or
neglect or is identified as affected by illegal substance abuse, or
withdrawal symptoms resulting from prenatal drug exposure, consistent
with proposed Sec. 303.302. This requirement has applied to State
agencies receiving funds under the Child Abuse Prevention and Treatment
Act (CAPTA) in 42 U.S.C. 5106a since June 2003. A comparable
requirement was added to section 637(a)(6) of the Act for Part C lead
agencies, effective July 1, 2005.
Proposed Sec. 303.207, which would align with section 637(a)(7) of
the Act, would require that each application include a description of
the procedure used to ensure that resources are available for all
geographic areas within the State and would be substantively the same
as current Sec. 303.147.
Proposed Sec. 303.208 would incorporate language from section
637(a)(8) of the Act and would combine requirements in current
Sec. Sec. 303.110, 303.112, 303.113(b), and 303.146. Proposed Sec.
303.208(a)(1) would generally be the same as current Sec. 303.110 and
would require public hearings, adequate notice of hearings, and an
opportunity for comment to the general public, including individuals
with disabilities and parents of infants and toddlers with
disabilities, prior to the State's adoption of any new or revised
policy or procedure under Part C of the Act.
Proposed Sec. 303.208(b) would clarify that policies, procedures,
and methods that are subject to the public participation requirements
in proposed Sec. 303.208 and are required to be submitted to the
Secretary under subparts B and C of these proposed regulations must be
approved by the Secretary prior to implementation.
The remaining specific requirements in current Sec. Sec. 303.111
through 303.113 would be eliminated because States are required to
comply with the public participation requirements of proposed Sec.
303.208(a) and GEPA and obtain approval by the Secretary for specific
application requirements that are subject to the public participation
requirements in proposed Sec. 303.208. These requirements provide
sufficient opportunities for public comment.
Proposed Sec. 303.209, regarding the transition of children from
services under Part C of the Act to preschool and other programs, would
incorporate language from section 637(a)(9) of the Act, and would be
similar to current Sec. 303.148. The note following current Sec.
303.148, regarding matters that should be considered in developing
policies and procedures to ensure a smooth transition of children from
one program to the other, would be removed because it is covered by
proposed Sec. 303.209 and section 637(a)(9) of the Act, which identify
the specific early childhood transition requirements.
Proposed Sec. 303.209(a)(1) would require each State application
to include a description of the policies and procedures the State will
use to ensure a smooth transition for toddlers with disabilities
leaving the early intervention program to attend preschool, school, or
other appropriate services, or exit the program, and their families.
Proposed Sec. 303.209(a)(1) would add language to ensure a smooth
transition from the early intervention program to preschool, school, or
other appropriate services for toddlers receiving services as a result
of the State's election to make available early intervention services
to children with disabilities ages three and older in accordance with
proposed Sec. 303.211.
Proposed Sec. 303.209(a)(2) would add language requiring States to
describe how they would meet each of the requirements related to
toddlers transitioning from services under Part C of the Act to
preschool and other programs in proposed Sec. 303.209(b) through (d).
Proposed Sec. 303.209(a)(3)(i) would revise the language in
current Sec. 303.148(c) to require all States (not just those in which
the SEA is not the lead agency) to establish an interagency or intra-
agency agreement between the programs under Part C and Part B of the
Act.
Proposed Sec. 303.209(a)(3)(ii) would clarify that the agreement
must contain provisions for how the lead agency and the SEA will meet
the requirements of Part C of the Act in proposed Sec. 303.209(b)
through (d), regarding LEA notification and transition conferences and
plans. In addition, the agreement must contain provisions for how the
lead agency and the SEA will meet the requirements in proposed Sec.
303.344(h), regarding IFSP content and transition steps and services,
and the following Part B regulations: 34 CFR 300.124 (Transition of
children from the Part C program to preschool programs) (71 FR 46766),
34 CFR 300.321(f) (Initial IEP Team meeting for child under Part C) (71
FR 46788), and 34 CFR 300.323(b) (IEP or IFSP for children aged three
through five) (71 FR 46789).
Proposed Sec. 303.209(a)(3)(ii) would also require a State to have
an interagency agreement to ensure a seamless transition between
services under Part C of the Act to services under Part B of the Act.
Proposed Sec. 303.209(a)(4) would require that the State
application must include any policy adopted by the State under proposed
Sec. 303.401(e).
Proposed Sec. 303.209(b)(1) would include the requirement in
current Sec. 303.148(a) that each application include a description of
how families will be included in the transition plan.
Proposed Sec. 303.209(b)(2) would be similar to current Sec.
303.148(b)(1) but would clarify, consistent with section
637(a)(9)(A)(ii)(II) of the Act, the timeline applicable to transition
requirements. Proposed Sec. 303.209(b)(2)(i) would require that each
State include in its application a description of how the lead agency
will notify, at least nine months before the toddler's third birthday,
the LEA for the area in which the toddler resides--or, if appropriate,
the SEA--that the toddler on his or her third birthday will reach the
age of eligibility for preschool or school services under Part B of the
Act.
Proposed Sec. 303.209(b)(2)(ii) would also clarify that, if a
toddler is referred for early intervention services under Part C of the
Act within the nine-month period before the toddler's third birthday,
the lead agency, as soon as possible after determining the child's
eligibility, will notify the LEA for the area in which the toddler
resides--or, if appropriate, the SEA--that the toddler on his or her
third birthday will reach the age of eligibility for preschool or
school services under Part B of the Act. Proposed Sec. 303.209(b)(3)
would clarify that if a State adopts a policy under proposed Sec.
303.401(e), the lead agency's notification obligations under proposed
Sec. 303.209(b)(2)(i) and (ii) must be consistent with the policy.
Proposed Sec. 303.401(e) are discussed in subpart E of this preamble.
Proposed Sec. 303.209(c) would retain the requirement in current
Sec. 303.148(b)(2)(i) that the State lead agency convene, with the
approval of the family, a conference among the lead agency, the family,
and the LEA to discuss any services under Part B of the
[[Page 26468]]
Act that the toddler with a disability may receive.
Proposed Sec. 303.209(c)(1), similar to current Sec.
303.148(b)(2)(i) would require that, for a toddler with a disability
who is potentially eligible under Part B of the Act, the transition
conference is to be convened not fewer than 90 days before the
toddler's third birthday. Current Sec. 303.148(b)(2)(i) allows the
conference, at the discretion of the parties, to be held up to six
months before the child is eligible for preschool services. Proposed
Sec. 303.209(c)(1) would change this time period to not more than nine
months before the toddler's third birthday, consistent with changes in
section 637(a)(9) of the Act.
Proposed Sec. 303.209(c)(2) would substantively be the same as
current Sec. 303.148(b)(2)(ii) and would require the lead agency, for
the toddler with a disability who may not be eligible for services
under Part B of the Act, to make reasonable efforts to convene a
conference with the lead agency, the family, and providers of other
appropriate services to discuss services the toddler may receive.
Proposed Sec. 303.209(d)(1) would substantively include the
provisions in current Sec. 303.148(b)(3) and would require a review of
the toddler with a disability's program options for the period from the
toddler's third birthday through the remainder of the school year.
Proposed Sec. 303.209(d)(2) would require the lead agency to
establish a transition plan, as in current Sec. 303.148(b)(4).
Proposed Sec. 303.209(d)(2) would also clarify that the transition
plan be established in the IFSP not fewer than 90 days (and at the
discretion of all parties, not more than nine months) before the
toddler's third birthday to align with the LEA notification and
transition conference timelines.
Proposed Sec. 303.209(d)(3) would add a requirement that the
transition plan include steps for the toddler with a disability and his
or her family to exit from the program, consistent with section
637(a)(9) of the Act, and also specify that the transition plan must
include any transition services needed, consistent with section
636(a)(3) of the Act.
Proposed Sec. 303.210 would be added to require each application
to describe State efforts to promote collaboration among Early Head
Start programs, early education and child care programs, and early
intervention services, consistent with section 637(a)(10) of the Act
and would also reference Head Start in the list of early education
programs.
Proposed Sec. 303.211 would incorporate the language in section
635(c) of the Act providing States the option to make early
intervention services available to children beginning at three years of
age until the children enter, or are eligible under State law to enter,
kindergarten or elementary school. Proposed Sec. 303.211(a)(1) would
allow a State to elect to include in its Part C application, a State
policy developed jointly by the lead agency and the SEA, to make early
intervention services available to certain children with disabilities.
If a State elects to include such a policy, children who are eligible
for services under section 619 of the Act, and who were previously
receiving early intervention services under Part C of the Act, would
continue to receive early intervention services, if their parents
choose to continue those services.
Proposed Sec. 303.211(a)(2) would clarify that States may choose
to serve a subset of children between age three and the age at which
the children enter, or are eligible to enter, kindergarten or
elementary school. This provision would take into consideration States
that have preschool programs for many or all children starting at age
four, and would give those States the flexibility to provide early
intervention services until the beginning of the school year following
the child's third, fourth or fifth birthday. Although proposed Sec.
303.211(a)(2) would allow States to serve a subset of children between
age three and the age at which children enter, or are eligible to
enter, kindergarten or elementary school, the option would not extend
to serving only a specific disability group.
Proposed Sec. 303.211(b)(1) would require States that choose to
provide early intervention services to children under this proposed
section to ensure, consistent with section 635(c)(2)(A)(i) and (ii) of
the Act, that the parents of children with disabilities served under
this option would be provided with an annual notice that includes: a
description of the rights of the parents to elect to receive early
intervention services under Part C of the Act or preschool services
under Part B of the Act; an explanation of the differences between
early intervention services provided under Part C of the Act and
preschool services provided under Part B of the Act, including the
types of services and the locations at which the services are provided;
the procedural safeguards that apply; and possible costs, if any, to
parents of infants or toddlers with disabilities receiving early
intervention services. Proposed Sec. 303.211(b)(2) would incorporate
the requirement in section 635(c)(2)(B) of the Act that early
intervention services provided to children with disabilities under this
proposed section include an educational component that promotes school
readiness and incorporates preliteracy, language, and numeracy skills.
Proposed Sec. 303.211(b)(3) would incorporate section 635(c)(2)(C)
of the Act and would require the statewide system to ensure that the
State policy would not affect the right of any child to receive FAPE
under Part B of the Act instead of early intervention services under
Part C of the Act.
Proposed Sec. 303.211(b)(4) would require, consistent with section
635(c)(2)(D) of the Act, that all early intervention services outlined
in the child's IFSP be continued while any eligibility determination is
being made for services under proposed Sec. 303.211, and clarify that
this provision is subject to the pendency provision in proposed Sec.
303.430(e).
Proposed Sec. 303.211(b)(5) would incorporate the requirement in
section 635(c)(2)(E) of the Act that the State obtain informed consent
from the parents of any child to receive early intervention services,
where practicable, before the child reaches three years of age.
Proposed Sec. 303.211(b)(6) would provide, consistent with section
635(c)(2)(F) of the Act, that the transition timeline requirements in
proposed Sec. 303.209(c)(1) and (d)(2) regarding the transition
conference and plan do not apply with respect to a child who is
receiving early intervention services under proposed Sec. 303.211
until not fewer than 90 days--and, at the discretion of the parties to
the conference, not more than nine months--before the time the child is
expected to no longer receive early intervention services. The
transition conference and plan would occur between the time that the
child is three years old and the time the child enters, or is eligible
to enter, kindergarten, depending on how long the State made those
services available under proposed Sec. 303.211.
Proposed Sec. 303.211(b)(7) would require a referral for
evaluation for early intervention services of a child under the age of
three who experiences a substantiated case of trauma due to exposure to
family violence, as defined in section 320 of the Family Violence
Prevention and Services Act, consistent with section 635(c)(2)(G) of
the Act. Proposed Sec. 303.211(b)(7) would clarify that such referral
is dependent upon parental consent. Parental consent would be required
to balance the need to protect the safety needs of the parent
[[Page 26469]]
seeking shelter because of family violence, as defined in section 320
of the Family Violence Prevention and Services Act, 42 U.S.C. 10401 et
seq., with the child find mandate under Part C of the Act.
Proposed Sec. 303.211(c) would incorporate language from section
635(c)(3) of the Act and would require each State that provides early
intervention services to children ages three and older to report to the
Secretary the number and percentage of children who are eligible for
services under section 619 of the Act, but whose parents choose to
continue early intervention services for their child. Consistent with
section 635(c)(4) of the Act, proposed Sec. 303.211(d) would require
States that choose to provide early intervention services to children
ages three and older to describe the funds that will be used to ensure
that this option is available to eligible children and families who
provide consent. The description must include the Federal, State, or
local funds that will be used and the fees, if any, to be charged to
families with public or private insurance under a State's system of
payments adopted under section 632(4)(B) of the Act and proposed
Sec. Sec. 303.520 and 303.521.
Proposed Sec. 303.211(e)(1) would incorporate the language in
section 635(c)(5)(A) of the Act that provides that when a statewide
system includes a policy to provide early intervention services to a
child with a disability who is eligible for services under section 619
of the Act, it is not required to provide the child FAPE under Part B
of the Act for the period of time during which the child is receiving
early intervention services.
Proposed Sec. 303.211(e)(2) would incorporate the language in
section 635(c)(5)(B) of the Act that clarifies that a provider of early
intervention services is not required to provide a child receiving
early intervention services with FAPE.
Proposed Sec. 303.212, which requires each application to include
any other information and assurances that the Secretary may reasonably
require, would be added to incorporate the provisions in section
637(a)(11) of the Act. This regulation would provide for the Secretary
to require the States to submit other reasonable information and
assurances in the State's application for funds under Part C of the
Act, and would be enforced as any other requirement in this part in
order for a State to receive a grant under section 633 of the Act.
Assurances
The assurances in proposed Sec. Sec. 303.221 through 303.227 would
follow the order of the assurance requirements in section 637(b) of the
Act.
Proposed Sec. 303.220 would specify that each State application
must include the assurances required in proposed Sec. Sec. 303.221
through 303.227, which would reflect the requirements in section
637(b)(1) through (7) of the Act.
Proposed Sec. 303.221, regarding the expenditure of funds, would
reflect section 637(b)(1) of the Act and would retain the substance of
current Sec. 303.127, with cross-references updated.
Proposed Sec. 303.222, requiring the State to comply with the
payor of last resort requirements in subpart F of these proposed
regulations, would replace current Sec. 303.126. Current Sec.
303.126(a) and (b), which reference the requirements on non-
substitution of funds and non-reduction of other benefits, would now be
incorporated into proposed Sec. 303.510.
Proposed Sec. 303.223, regarding control of funds and property, is
generally the same as and would replace current Sec. 303.122 and
incorporate the statutory provision in section 637(b)(3) of the Act.
Proposed Sec. 303.224, regarding reports and records, would
substantively include the language in current Sec. 303.121.
Proposed Sec. 303.225, regarding the prohibition against
commingling and supplanting, would combine current Sec. Sec. 303.123
and 303.124 and the requirements in section 637(b)(5) of the Act.
Proposed Sec. 303.225(a) would replace current Sec. 303.123 to
require that a State ensure that funds under Part C of the Act are not
commingled with State funds, and would add the definition of commingle
from the note following current Sec. 303.123. The remainder of the
current note, regarding a clear audit trail for each source, would be
removed because it is redundant of requirements under the Single Audit
Act (31 U.S.C. 7501 et seq.), which applies to Part C of the Act.
Proposed Sec. 303.225(b)(1) would substantively include the
language in current Sec. 303.124(a) and (b). Proposed Sec.
303.225(b)(1)(i) would require that Federal funds be used to
supplement, and, in no case, supplant State and local funds. Proposed
Sec. 303.225(b)(1)(ii) would require that the total amount of State
and local funds budgeted for expenditures in the current fiscal year
for early intervention services for infants and toddlers with
disabilities and their families must be at least equal to the total
amount of State and local funds actually expended in the most recent
preceding fiscal year for those services.
Proposed Sec. 303.225(b)(2)(i) through (iv) would incorporate the
language in 34 CFR 300.204(a) through (d) of the Part B regulations (71
FR 46780), regarding exceptions to maintenance of effort; and would
allow a Part C lead agency's maintenance of effort to be temporarily
reduced in an individual year due to: a decrease in the number of
infants and toddlers who are eligible to receive early intervention
services; the termination of costly expenditures for long-term
purchases, such as the acquisition of equipment and cost of
construction of facilities; the departure of personnel either
voluntarily or for just cause; and the termination of the obligation to
make early intervention services available to an exceptionally costly
IFSP program for a particular infant or toddler with a disability.
Proposed Sec. 303.225(c) would incorporate the indirect cost
requirements under Part C of the Act and under 34 CFR part 76.
Proposed Sec. 303.226, which requires certain fiscal control and
fund accounting procedures, would replace and substantively include the
language in current Sec. 303.125. Proposed Sec. 303.227, which
requires policies and practices to ensure that traditionally
underserved groups are meaningfully involved in the planning and
implementation of the requirements under Part C of the Act, would
include the language in current Sec. 303.128, except that children
with disabilities who are wards of the State would be added to the list
of traditionally underserved groups, consistent with section 637(b)(7)
of the Act.
Subsequent Applications and Modifications, Eligibility Determinations,
and Standard of Disapproval
Proposed Sec. 303.228 would incorporate the language in section
637(d), (e), and (f) of the Act and is substantively the same as
current Sec. 303.100(b), (c), and (d). Proposed Sec. 303.229 would
add a provision that the Secretary notify the State if the Secretary
determines a State is eligible to receive a grant under section 637 of
the Act. Proposed Sec. 303.230 regarding the standard for disapproval
of an application, would replace current Sec. 303.101, and would
provide, consistent with section 637(c) of the Act, that the Secretary
does not disapprove an application under this part unless the Secretary
determines, through the notice and opportunity for hearing procedures
in proposed
[[Page 26470]]
Sec. Sec. 303.231 through 303.236, that an application fails to comply
with the requirements of this part.
Department Procedures
Proposed Sec. Sec. 303.231 through 303.236 would set forth the
specific notice and hearing procedures that would apply before the
Secretary determines a State is not eligible to receive a grant under
this part. These proposed regulations would incorporate the language in
34 CFR 300.179 through 300.184 of the Part B regulations (71 FR 46776-
46778). We propose to adopt these regulations in order to encourage
greater consistency between Part B and Part C program operations.
Subpart D--Child Find, Evaluations and Assessments, and Individualized
Family Service Plans
Proposed subpart D would incorporate the requirements from section
636 of the Act regarding evaluations and assessments and IFSPs.
Proposed subpart D of these proposed regulations would also incorporate
the comprehensive child find system requirements because they overlap
with evaluation requirements and because the new statutory child find
requirements are contained in sections 612, 631, 632, 634, 635, 637 and
641 of the Act, which do not readily relate to a corresponding subpart
in these proposed regulations.
Public awareness, child find, referral and screening procedures
would be in proposed Sec. Sec. 303.300 through 303.303. Evaluation and
assessment requirements would be combined in proposed Sec. 303.320 to
incorporate the relevant provisions in section 636(a)(1) and (2) of the
Act.
IFSP provisions would be primarily unchanged in proposed Sec. Sec.
303.340 through 303.345. Section 636(e) of the Act, regarding parental
consent for IFSPs, would not be addressed in subpart D of these
proposed regulations. It would instead be included with other parental
consent provisions in proposed Sec. 303.420, to align with section 639
of the Act regarding procedural safeguards.
Identification--Public Awareness, Child Find, and Referral
Proposed Sec. 303.300(a) and (b), regarding a public awareness
program, would incorporate language from current Sec. 303.320 that
requires a public awareness program that provides for information to be
prepared and disseminated to primary referral sources to inform parents
of infants and toddlers about the child find system, central directory,
and the availability of preschool services under section 619 of the
Act. Proposed Sec. 303.300(a) would also cross-reference proposed
Sec. 303.116, which would require a statewide system to have a public
awareness program consistent with the provisions in proposed Sec.
303.300. Consistent with section 635(a)(6) of the Act, proposed Sec.
303.300(a)(1)(ii) would add a specific reference to parents of
premature infants, or infants with other physical risk factors
associated with learning or developmental complications.
Proposed Sec. 303.300(a)(2) would add a requirement that the
statewide system have procedures for assisting primary referral sources
to disseminate information to parents of infants and toddlers with
disabilities, consistent with section 635(a)(6) of the Act. This
proposed provision would replace current Sec. 303.321(d)(2)(iii),
which was removed, consistent with section 635(a)(6) of the Act.
Proposed Sec. 303.300(a)(2) would cross-reference proposed Sec.
303.302(c) which defines the term primary referral sources for the
purposes of subpart C. Notes 1 and 2 following current Sec. 303.320,
which include the components for an effective public awareness program,
would be removed, as they do not reflect regulatory requirements and
are therefore not necessary.
Proposed Sec. 303.301, regarding a comprehensive child find
system, would incorporate the requirements from current Sec. 303.321
and would also emphasize the applicability of the child find system for
the specific subpopulations referred to in many sections of the Act.
Proposed Sec. 303.301(a)(1) and (2) would incorporate language from
section 635(a)(5) of the Act, which requires a system for making
referrals to service providers that includes timelines and provides for
participation by primary referral sources. Proposed Sec. 303.301(a)(3)
would incorporate statutory language from section 635(a)(5) of the Act
that requires rigorous standards for appropriately identifying infants
and toddlers with disabilities for early intervention services under
Part C of the Act that would reduce the need for future services.
Proposed Sec. 303.301(a)(4) would require the comprehensive child find
system to meet the requirements in paragraphs (b) and (c) of this
section and proposed Sec. 303.302, regarding referral procedures, and
proposed Sec. 303.303, regarding screening procedures.
Proposed Sec. 303.301(b) would address the scope of child find by
identifying specific subpopulations of children that were added in the
2004 amendments to Part C of the Act. Current Sec. 303.321(a)(2) would
be removed as redundant with proposed Sec. 303.301(b) and (c),
regarding the lead agency's responsibilities for administering the
child find system under Part C of the Act, and proposed Sec.
303.604(a)(3), regarding the Council's advisory role.
Proposed Sec. 303.301(b) would incorporate current Sec.
303.321(a)(2), which identifies the lead agency as the agency
responsible for implementing a comprehensive child find system.
Proposed Sec. 303.301(b)(1)(i) and (ii) would add references to
children who are residing on a reservation located in a State,
homeless, in foster care, and wards of the State to incorporate
sections 612(a)(3)(A), 634(1) and 635(a)(2) of the Act and to align
with the child find provisions in 34 CFR 300.111 of the Part B
regulations (71 FR 46764). Proposed Sec. 303.301(b)(1) would cross-
reference the provisions in proposed Sec. 303.731(e)(1)) to ensure
coordination by lead agencies with tribes, tribal organization, and
consortia located in the State to ensure the timely identification of
Indian infants and toddlers with disabilities.
Proposed Sec. 303.301(b)(2) would replace current Sec.
303.321(b)(2) and would clarify that child find includes methods for
determining which children are in need of early intervention services
and which children are not in need of those services.
Proposed Sec. 303.301(c) would incorporate the requirements of
current Sec. 303.321(c) and would add language requiring child find
coordination with the following programs and agencies, to align with
sections 634(1), 635(c)(2)(G), and 637(a)(6) and (10) of the Act: early
education programs in the State, including Head Start and Early Head
Start programs under section 645A of the Head Start Act; child
protection programs including the foster care program and the State
agency responsible for administering the Child Abuse Prevention and
Treatment Act (CAPTA); child care programs in the State; and the
programs that provide services under the Family Violence Prevention and
Services Act for States electing to make available early intervention
services to children with disabilities, in accordance with section
635(c) of the Act and proposed Sec. 303.211.
Proposed Sec. 303.302, regarding referral procedures, would
require that the referral of a child under proposed Sec.
303.302(a)(2)(i) be as soon as possible after the child has been
identified. This is a change from the requirement in current Sec.
303.321(d)(2)(ii), which requires the referral to occur within two
[[Page 26471]]
working days. The 2004 Amendments require lead agencies to conduct
child find for additional subpopulations, which has substantially
increased the number of referrals, making the two-day period
impractical. A change in referral timeline is needed because we have
found that the two-day referral is often not practical when some
primary referral sources of these additional subpopulations are working
with the lead agency and reviewing all information available about the
child in order to determine whether the child may be suspected of
having a disability and may need referral for evaluation under Part C
of the Act. In addition, the Department has limited ability to enforce
such a timeline given that primary referral sources include private
physicians and other individuals and entities that are not EIS
providers. Recognizing the importance of referring and identifying
children potentially eligible for early intervention services as soon
as possible, we are seeking comment on the proposed change in proposed
Sec. 303.302(a)(2)(i), specifically, regarding whether a different
timeframe or approach is more appropriate.
Proposed Sec. 303.302(b), regarding referral of specific at-risk
children, would incorporate language from section 637(a)(6) of the Act,
which requires States to have policies and procedures for the referral
of early intervention services under Part C of the Act for an infant or
toddler under the age of three who is involved in a substantiated case
of child abuse or neglect; or is identified as affected by illegal
substance abuse, or withdrawal symptoms resulting from prenatal drug
exposure.
Proposed Sec. 303.302(b)(1) would require the referral of a child
under the age of three who is involved in a substantiated case of child
abuse or neglect. This provision is consistent with CAPTA, which was
amended in June 2003 to require States receiving CAPTA funds to have
policies regarding the referral to the Part C program of children under
the age of three who were involved in a substantiated case of abuse or
neglect. In coordinating with the U.S. Department of Health and Human
Services, which administers CAPTA, the Department has confirmed that
neither Part C of the Act nor CAPTA requires the referral of a child
other than the child who is the subject of a proceeding resulting in
substantiation. Therefore, proposed Sec. 303.302(b)(1) would not
require a sibling to be referred or screened unless that sibling is a
child under the age of three who has been the subject of a
substantiation proceeding.
Proposed Sec. 303.302(c) would incorporate the definition of
``primary referral sources'' in current Sec. 303.321(d)(3), but would
add to the definition: schools, clinics, public agencies and staff in
the child welfare system including child protective service and foster
care, homeless family shelters, and domestic violence shelters and
agencies for States electing to make services under Part C of the Act
available to children after the age of three in accordance with section
635(c)(2)(G) of the Act and proposed Sec. 303.211. This would
implement the intent of Congress, as expressed in note 290 of the Conf.
Rpt., to ensure that the comprehensive child find system ``includes a
broad range of referral sources such as homeless family shelters,
clinics and other health service related offices, public schools and
officials and staff in the child welfare system.'' The timelines for
public agencies to act on referrals in current Sec. 303.321(e) would
be replaced by those in proposed Sec. 303.320(e). The Note following
current Sec. 303.321 would be removed as it does not reflect a
regulatory requirement and is therefore not necessary.
Proposed Sec. 303.303 would clarify the responsibilities of the
lead agency regarding when screening may be used once a child is
referred for early intervention services under Part C of the Act. These
screening provisions would be added because we have determined them to
be necessary. Although section 639(a)(4) of the Act has always
referenced ``screening,'' the new child find provisions in the Act
require lead agencies and primary referral sources to determine how
best to efficiently identify, from the increased number of potential
referrals, those children experiencing developmental delays or
potentially eligible for early intervention services under Part C of
the Act. Many States have already adopted screening procedures to
accomplish this.
Proposed Sec. 303.303(a)(1) would expressly permit States to have
procedures for the screening of a child, when appropriate, to determine
if the child is suspected of having a disability, and would clarify
that if the State lead agency elects to adopt screening procedures to
determine if a child is suspected of having a disability, those
screening procedures must meet the requirements of proposed Sec.
303.303. States would not be required to adopt screening procedures,
but if States adopt such procedures, those procedures would have to
meet the requirements in proposed Sec. 303.303.
Proposed Sec. 303.303(a)(2) would clarify that, if the screening
indicates that the child is suspected of having a disability, the lead
agency must conduct an evaluation under proposed Sec. 303.320 to
determine the eligibility of the child. This provision would be added
because, if the lead agency were to conduct a screening that indicated
the child is suspected of having a disability, such screening results
would provide the lead agency with information that the infant or
toddler may be experiencing developmental delays. If the lead agency
believes, based on the screening and other available information, that
a child is not suspected of having a disability, then proposed Sec.
303.303(a)(3), consistent with current Sec. 303.403, would require the
lead agency to provide the parent with notice under proposed Sec.
303.421 that it is declining to conduct an evaluation. The notice
requirement in proposed Sec. 303.303(a)(3) would be added because it
is the Department's experience that many States were not aware of the
need to provide notice under these circumstances.
Proposed Sec. 303.303(a)(4) would require the lead agency to
conduct an evaluation if a parent requests an evaluation after the lead
agency determines a child is not suspected of having a disability after
completing a screening. These proposed regulations provide this
clarification because most States that have adopted screening
procedures after the June 2003 CAPTA amendments and the IDEA 2004
amendments have found that permitting the parent to request an
evaluation is necessary to ensure appropriate identification of
eligible children. In addition, the Department's experience indicates
that parents often can identify or suspect developmental delays in
their children that may not be identified through a screening. Further,
research in the early childhood community demonstrates that parents are
often in the best position to observe and know their infant's or
toddler's developmental status.
Proposed Sec. 303.303(b)(1) would define screening procedures as
activities that are carried out by a public agency, EIS provider, or
designated primary referral source (except for parents) to identify
infants and toddlers suspected of having a disability and in need of
early intervention services at the earliest possible age. Proposed
Sec. 303.303(b)(2) would clarify that the screening procedures include
the administration of appropriate instruments by qualified personnel
that can assist in making the identification described in proposed
Sec. 303.303(a)(1).
[[Page 26472]]
Proposed Sec. 303.303(c) would clarify that for every child who is
referred to the Part C program or receives a screening, the lead agency
is not required to provide an evaluation and assessment of a child,
unless the child is suspected of having a disability or the parent
requests an evaluation under proposed Sec. 303.303(a)(4). This
clarification is consistent with note 303 of the Conf. Rpt., which
provides that every child who is referred for early intervention
services under Part C of the Act, or who is screened is not required to
receive an evaluation unless the child is suspected of having a
disability and is not required to receive early intervention services
under Part C of the Act unless that child is eligible.
The Department notes that screening has long been part of States'
child find and public awareness systems under Part C of the Act. The
proposed regulations on screening would not apply to screenings
conducted: (1) prior to a child's referral for services under Part C of
the Act; (2) when a child's eligibility has already been determined; or
(3) to siblings of children in substantiated cases of abuse or neglect.
As part of the child find and public awareness systems, primary
referral sources and other community agencies often conduct routine
agency screenings of infants and toddlers and other children. The
proposed Part C regulations would not apply to screenings that are
routinely conducted by primary referral sources and are not used by the
lead agency to determine whether a child is suspected of having a
disability.
In addition, children already determined to be eligible (such as a
child with a diagnosed condition who has medical records that the lead
agency can use to establish eligibility) would not need to be screened,
because the purpose of screening is to determine whether a child is
suspected of having a disability.
Finally, neither Part C of the Act nor CAPTA requires the referral
or screening of siblings of a child, other than the child who is the
subject of the proceeding resulting in substantiated abuse or neglect
or who is identified as affected by illegal substance abuse or
withdrawal symptoms resulting from prenatal drug exposure, unless that
sibling is under the age of three and has also been the subject of a
substantiation proceeding. However, under Part C of the Act, States may
establish broader policies to permit or require the referral or
screening of these siblings.
Evaluation and Assessment of the Child and Family and Assessment of
Service Needs
Proposed Sec. 303.320 would combine the requirements from current
Sec. Sec. 303.300(b), 303.322, and 303.323 and section 636(a)(1) and
(2) of the Act. Proposed Sec. 303.320(a)(1) would require the lead
agency to ensure that a timely, comprehensive, and multidisciplinary
evaluation and an assessment are performed for each child under three
who is referred for an evaluation and is suspected of having a
disability. Proposed Sec. 303.320(a)(2)(i) would clarify that an
evaluation is the method used to review the assessments of the child
and the family to determine a child's initial and continuing
eligibility consistent with the definition of infant or toddler with a
disability in proposed Sec. 303.21. Proposed Sec. 303.320(a)(2)(ii)
would clarify that in conducting an evaluation, no single procedure may
be used as the sole criterion for determining the child's eligibility
for Part C services. Proposed Sec. 303.320(a)(2)(iii) would clarify
that the use of a child's medical and other records may be used to
establish eligibility (without conducting an assessment of the child
and the family) if those records contain information, required under
proposed Sec. 303.320, regarding the child's level of functioning in
the developmental areas identified in proposed Sec. 303.21(a)(1). The
nondiscriminatory procedures in current Sec. 303.323 would be
incorporated into proposed Sec. 303.320(a)(3).
Proposed Sec. 303.320(b)(1) would incorporate the procedures for
the assessment of a child found in current Sec. Sec. 303.322(b)(2),
303.322(c)(2), and 303.323(c). Proposed Sec. 303.320(b)(1) would
clarify that an assessment of a child means reviewing the child's
pertinent records that relate to the child's current health status and
medical history and conducting personal observation and assessment of
the child to identify the child's unique strengths and needs and
present level of developmental functioning. This clarification is
necessary because States have not consistently required that the
assessment of a child's need for early intervention services be based
on personal observation and assessment of the child by qualified
personnel. Proposed Sec. 303.320(b)(1) and (2) would clarify that the
assessment of the child's unique strengths and needs includes an
identification of the child's level of functioning in each of the
following developmental areas: Cognitive development; physical
development, including vision and hearing; communication development;
social or emotional development; and adaptive development based on
objective criteria, which include informed clinical opinion.
Proposed Sec. 303.320(b)(2) would expressly require that the lead
agency allow qualified personnel to use their informed clinical opinion
to assess a child's present level of functioning in each of the
developmental areas identified in proposed Sec. 303.21(a)(1) and to
establish a child's eligibility, even when other instruments fail to
establish eligibility. This is consistent with the Department's
monitoring experience, which has indicated confusion in States that do
not expressly allow the use of informed clinical opinion as a separate
basis to establish eligibility. This is necessary because instruments
may not adequately capture the extent of the developmental delay. Thus,
informed clinical opinion may be used to establish a child's
eligibility under this part even when other instruments do not
establish eligibility. However, under proposed Sec. 303.320(b)(2),
informed clinical opinion cannot be used to negate eligibility
established through the use of other appropriate assessment
instruments.
As provided in the note following current Sec. 303.300, the use of
informed clinical opinion in establishing eligibility for early
intervention services under Part C of the Act is especially important
when standardized instruments are unavailable, unreliable or
inappropriate for use in measuring developmental delay (as they often
are for children under the age of three) or for evaluating a diagnosed
condition such as autism spectrum disorder or pervasive developmental
delay. Although the language of the note would be removed by these
proposed regulations, the use of informed clinical opinion in
establishing eligibility continues to be necessary and would therefore
be included in proposed Sec. 303.320(b)(2) as previously discussed.
With respect to the procedures for the assessment of a family,
proposed Sec. 303.320(c) would combine the requirements of section
636(a)(2) of the Act and current Sec. Sec. 303.322(b)(2)(ii) and
303.322(d), and would require that family information be assessed not
just through the use of an assessment tool, but through a voluntary
personal interview with the family. In addition to the parent, the
family assessment can include other family members for the purposes of
identifying the child's needs. This proposed language would permit
States to avoid unnecessary, time-consuming, and costly evaluations,
[[Page 26473]]
if existing records contain reliable information, and establish
eligibility for services under Part C of the Act.
Proposed Sec. 303.320(d) would clarify, consistent with section
636(a)(1) of the Act and current Sec. 303.322(c)(3)(iii), that the
assessment of service needs must identify the early intervention
services needed to meet the unique strengths and needs of each infant
or toddler with a disability. The service needs of the family under
current Sec. 303.322(d) and sections 635(a)(3) and 636(a)(2) and
(d)(2) of the Act have been longstanding requirements, which have
clarified that family assessments must be family directed and designed
to determine the resources, priorities and concerns of the family and
the identification of supports and services to meet the developmental
needs of the child. Under proposed Sec. 303.320(d), the assessment of
the service needs of each infant or toddler with a disability and that
child's family must include a review of the evaluation (including the
assessment of the child and family) and available pertinent records and
conducting personal observation and assessment of the infant or toddler
with a disability in order to identify the early intervention services
appropriate to meet the child's unique needs in each of the five
developmental areas identified in proposed Sec. 303.320(b)(1).
Current Sec. Sec. 303.321(a) and 303.321(e)(1) and (2), require
that a child's evaluation, assessment, and initial IFSP meeting occur
within 45 days from the date the public agency receives the referral.
The Department believes this imposes an unnecessary burden on Part C
agencies. Because the public agency cannot initiate these actions
without parental consent, a refusal or late consent may drastically
reduce the time available for the agency to perform evaluations and
prepare for the IFSP meeting. Proposed Sec. 303.320(e)(1) would retain
the 45-day timeline requirement, but the timeline would start with the
date the public agency obtained parental consent for the evaluation,
not the date the public agency receives the referral.
This change in how the 45-day timeline is calculated may result in
some delays in the evaluation process, since the public agency may be
less motivated to obtain timely consent. However, there are situations
in which the lead agency is unable to obtain the requisite consent in a
timely manner because the parents do not respond. In those cases, the
delays in obtaining parental consent affect the State's ability to
conduct evaluations, assessments, and the initial IFSP meetings within
the 45-day period; potentially increase costs due to the need to pay
overtime to staff; and make the State vulnerable to due process
complaints based on its not complying with the 45-day timeline
requirement.
The Department believes the change in starting date for the 45 days
to when parental consent is obtained would provide a more realistic
start time for conducting evaluations, assessments and the initial IFSP
meeting and improve the ability of States to manage the development of
IFSPs. This proposed change also would eliminate the possibility that
States will be penalized for a lack of timeliness in due process
complaints in which parents were responsible for delays because they
did not provide timely consent or did not respond. The timeline change
reflected in proposed Sec. 303.320(e) is consistent with section
636(c) of the Act, which requires that the IFSP be developed within a
reasonable time after the assessment is completed.
The Department is seeking comment on whether the proposed change to
the starting date for evaluation, assessment, and initial IFSP in
proposed Sec. 303.320(e) is reasonable and necessary. Another option
to consider is for the starting date to remain the same with an
increase in the length of time to complete evaluations, assessments,
and holding the initial IFSP meeting.
Individualized Family Service Plans (IFSPs)
The definition of IFSP in current Sec. 303.340 would be
incorporated into the definition of IFSP in proposed Sec. 303.20.
Proposed Sec. 303.340 would cross-reference the definition in proposed
Sec. 303.20 and would require that the IFSP for an infant or toddler
with a disability meet the requirements in proposed Sec. Sec. 303.342
through 303.345.
Proposed Sec. 303.342(a) through (d), regarding procedures for
IFSP development, review, and evaluation would be substantively
unchanged from current Sec. 303.342(a) through (d), with the cross-
references updated. Proposed Sec. 303.342(e) would be substantively
unchanged from current Sec. 303.342(e), except that the substantive
requirements regarding a parent's ability to consent or decline consent
at any time would be addressed in proposed Sec. 303.420. The note
following current Sec. 303.342 would be removed as it does not reflect
a regulatory requirement and is therefore not necessary.
Proposed Sec. 303.343, regarding IFSP team meetings and periodic
reviews, would be substantively unchanged from current Sec. 303.343
except that the title of the section would be changed. IFSP
participants would be referred to as the ``IFSP team'' to align with
the reference to a ``multidisciplinary team'' in section 636(a)(3) of
the Act. Proposed Sec. 303.343(a)(1)(iv) would remove, as unnecessary,
language defining which service coordinators must participate in the
initial and annual IFSP meetings. The change would be made to alleviate
burden on the State to have additional people at the IFSP meeting. In
most States, the service coordinator at the time of the IFSP meeting is
the service coordinator who is most knowledgeable about the child and
family and this service coordinator generally attends the IFSP meeting.
Proposed Sec. 303.344(a), regarding content of an IFSP, would be
substantively unchanged from current Sec. 303.344(a), except that
proposed Sec. 303.344(a) would clarify that the IFSP content regarding
present levels of functioning in each developmental area must be based
on the child's evaluation and assessment under proposed Sec. 303.320,
to align with section 636(d)(1) of the Act, which requires that the
child's present levels of development be based on objective criteria.
Accordingly, current Sec. 303.344(a)(2), which refers to
professionally acceptable objective criteria, would be removed.
Proposed Sec. 303.320 would require that objective criteria be used to
determine the infant or toddler's present levels of functioning in the
developmental areas identified.
Proposed Sec. 303.344(b) would be substantively unchanged from
current Sec. 303.344(b). Proposed Sec. 303.344(c) would incorporate
language from section 636(d)(3) of the Act, which requires the IFSP to
contain a statement of the ``measurable results or outcomes expected to
be achieved for the infant or toddler and the family, including pre-
literacy and language skills, as developmentally appropriate for the
child.'' Because the term ``measurable'' modifies both ``results'' and
``outcomes,'' proposed Sec. 303.344(c) would clarify that the IFSP
must contain measurable results or measurable outcomes. In addition to
being required by the statute, including pre-literacy and language
skills as examples of measurable results or measurable outcomes is
consistent with the current practices of most States for including on
the IFSP, communication or social and emotional developmental goals.
These goals would meet the requisite pre-literacy and language skills
that are developmentally appropriate for infants and toddlers with
disabilities.
Proposed Sec. 303.344(d)(1) would incorporate language from
section 636(d)(4) of the Act, which requires that
[[Page 26474]]
specific early intervention services contained in the IFSP be based on
peer-reviewed research, to the extent practicable. This requirement is
not intended to impose any additional recordkeeping or IFSP content
burden but rather to ensure that each early intervention service is
based on the child's developmental needs and reflects current standards
of research-based practices.
Proposed Sec. 303.344(d)(1)(i) would be consistent with section
636(d)(4) and (6) of the Act, and would require the IFSP to contain a
statement of the frequency, intensity, length, duration, and method of
delivery of services.
Proposed Sec. 303.344(d)(1)(ii)(A), concerning natural
environments, would be amended to align with sections 635(a)(16)(A) and
636(d)(5) of the Act. Proposed Sec. 303.344(d)(1)(ii)(B), regarding
the determination of the appropriate setting for providing early
intervention services, would align with section 635(a)(16)(B) of the
Act.
Proposed Sec. 303.344(d)(1)(ii)(B) would specify that if a
particular early intervention service cannot be provided satisfactorily
in a natural environment, a justification that describes the setting in
which the service will be provided and an explanation that supports the
decision as to how the setting will assist the infant or toddler
achieve the IFSP outcomes is required on the IFSP. This incorporates a
longstanding Department policy that a justification for not providing
early intervention services in a natural environment should be based on
the child's IFSP outcomes. Note 295a of the Conf. Rpt. states ``that
there may be instances when a child's Individualized Family Service
Plan cannot be implemented satisfactorily in the natural environment.
The Conferees intend that in these instances, the child's parents and
other members of the individualized family service plan team will
together make this determination and then identify the most appropriate
setting in which early intervention services can be provided.''
In addition, proposed Sec. 303.344(d)(2) would define the terms
frequency and intensity, method, length, and duration for purposes of
proposed Sec. 303.344(d)(1)(i). Proposed Sec. 303.303(d)(2)(i)
regarding the definition of frequency and intensity would be
substantively the same as current Sec. 303.344(d)(2)(i) except that
proposed Sec. 303.344(d)(2)(iii) would include a definition of length,
consistent with section 636(d)(6) of the Act. Proposed Sec.
303.303(d)(2)(ii), regarding the definition of method, would
incorporate current Sec. 303.344(d)(2)(ii). Proposed Sec.
303.344(d)(2)(iv), regarding the definition of duration, would clarify
that duration means projecting when a given service will no longer be
provided (such as when the child is expected to achieve the results or
outcomes in his or her IFSP).
Proposed Sec. 303.344(d)(3), regarding the definition of location,
would incorporate the language in current Sec. 303.344(d)(3).
Proposed Sec. 303.344(d)(4) would add a new requirement that IFSPs
include, for children who are at least three years of age, an
educational component that promotes school readiness and incorporates
pre-literacy, language, and numeracy skills to align with sections
632(5)(B)(ii) and 635(c) of the Act, and 34 CFR 300.323(b) of the Part
B regulations (71 FR 46789), regarding the allowable use of IFSPs under
section 619 of the Act.
Proposed Sec. 303.344(e) would remove the requirement in current
Sec. 303.344(e)(1)(ii) that the IFSP identify funding sources for the
medical and other services not required by Part C of the Act. Current
Sec. 303.344(e)(1)(ii) would be removed, as it is overly burdensome to
require IFSP teams, including service coordinators, to identify funding
for services not required under Part C of the Act, because service
coordinators may have limited knowledge about funding for services that
are provided by other programs. In addition, proposed Sec. 303.344(e)
would incorporate current Sec. 303.344(e)(i) regarding the requirement
that other services needed or received by the child or family also be
identified on the IFSP. Identifying these other services ensures that
the IFSP identifies all of the services available to the child and
family, and would avoid duplicative services and enhance coordination
among the various agencies and organizations that are providing or may
provide such services, and would ensure that Part C funds are not being
used to pay for duplicate services. As indicated in Note 3 following
current Sec. 303.344, while listing the non-required services in the
IFSP does not mean that those services must be provided, their
identification is helpful to the child's family, the service
coordinator, and EIS providers because the IFSP provides a
comprehensive picture of the child's total service needs (including
medical and health services), as well as early intervention services
(including transition services).
Current Sec. 303.344(e)(2) would be removed as unnecessary. The
substance of current Sec. 303.344(e)(2) would be included in proposed
Sec. 303.16(c)(3), in the definition of health services. Proposed
Sec. 303.344(f) would be substantively unchanged from current Sec.
303.344(f) and would require the IFSP team to include on the IFSP, the
projected date for initiation of each service, which date must be as
soon as possible after the IFSP meeting, and the anticipated duration
of each service.
Current Sec. 303.344(g)(1) and (3) would be retained in proposed
Sec. 303.344(g). Proposed Sec. 303.344(g)(1) is intended to provide
guidance to the State in the identification of the service coordinator
on the IFSP. Current Sec. 303.344(g)(2) would be removed, to align
proposed Sec. 303.344(g) with section 636(d)(7) of the Act, and to
reduce the burden on States. Although the service coordinator must
serve as the single point of contact under current Sec. 303.23 and
proposed Sec. 303.33(a)(3), there is not a requirement that the
service coordinator be the same individual throughout the child's
participation in the Part C system. Current Sec. 303.344(g)(3) would
be renumbered as proposed Sec. 303.344(g)(2).
Proposed Sec. 303.344(h)(1), regarding the IFSP identifying the
programs to which children may transition from services under Part C of
the Act, would be substantively unchanged, except that subsections (ii)
and (iii) would be added to expressly identify the following additional
programs: (1) elementary school or preschool services (for children
participating under proposed Sec. 303.211); and (2) early education,
Head Start and Early Head Start or child care programs to incorporate
the coordination provisions in section 637(a)(10) of the Act.
Proposed Sec. 303.344(h)(2)(iv) would incorporate the provisions
in section 636(a)(3) of the Act to add a reference to transition
services and would remain substantively unchanged from current Sec.
303.344(h). The remainder of current Sec. 303.344(h) would be amended
and renumbered consistent with section 636 of the Act. The notes
following current Sec. 303.344 would be removed, as they do not
reflect regulatory requirements, but are explanatory or provide
examples, and are therefore not necessary, except for Note 3, which
would be incorporated into proposed Sec. 303.344(e).
Proposed Sec. 303.345 would be substantively unchanged from
current Sec. 303.345, with cross-references updated. The first part of
the note after current Sec. 303.345 regarding the purpose of interim
IFSPs would be removed as unnecessary because it provides only one
example of when interim IFSPs may be used, namely when a child's
eligibility under Part C of the Act is clear (i.e. due to a diagnosed
condition such as cerebral palsy). However, interim IFSPs are available
whenever an immediate need for an early
[[Page 26475]]
intervention service is identified for an infant or toddler with a
disability and the other conditions of proposed Sec. 303.345 are met,
regardless of how a child is eligible under Part C of the Act. In
addition, the second part of this note, regarding the applicability of
the 45-day timeline, would be removed, because proposed Sec.
303.345(c) would continue to apply the 45-day timeline for the timely
completion of evaluations and assessments, even when an interim IFSP is
used.
Proposed Sec. 303.346 would retain current Sec. 303.346,
regarding the responsibility and accountability of agencies and persons
who have a direct role in the provision of early intervention services.
Personnel training and standards in current Sec. Sec. 303.360 and
303.361 would be moved to subpart B of the proposed regulations in
Sec. Sec. 303.118 and 303.119 to align with section 635 of the Act.
The note following current Sec. 303.361, regarding State flexibility
to identify specific occupation categories, would be removed as
unnecessary, because proposed Sec. Sec. 303.118 and 303.119 would
adequately clarify that State personnel standards would continue to be
determined by States.
Subpart E--Procedural Safeguards
Proposed subpart E would incorporate the procedural safeguard
provisions from sections 615 and 639 of the Act.
General
Proposed Sec. 303.400(a) would substantially retain the language
in current Sec. 303.400(a), but would identify the major components of
procedural safeguard requirements in proposed subpart E, including:
confidentiality; parental consent and notice; surrogate parents;
mediation; dispute resolution options; and due process hearing
procedures under sections 639 and 615 of the Act. Proposed Sec.
303.400(b) would be substantially the same as current Sec. 303.400(b),
and would indicate that the lead agency is responsible for ensuring the
effective implementation of the safeguards by each EIS provider in the
State that is involved in the provision of early intervention services.
The confidentiality provisions in proposed Sec. Sec. 303.401
through 303.417, would implement sections 617(c) and 639(a)(2) and (4)
of the Act and would primarily incorporate the language of the
confidentiality protections under 34 CFR 300.610 through 300.627 of the
Part B regulations (71 FR 46802-46804), and the Family Educational
Rights and Privacy Act (FERPA) in 20 U.S.C. 1232g and its implementing
regulations in 34 CFR part 99.
The parental consent, notice, and surrogate parent provisions in
proposed Sec. Sec. 303.420 through 303.422, would implement section
639(a)(3), (5), (6), and (7) of the Act, regarding parental consent,
parental notice, and surrogate parent provisions and would replace
current Sec. Sec. 303.403 through 303.406.
The dispute resolution options in proposed Sec. Sec. 303.430
through 303.439, would implement section 639(a)(1) and (8), and 639(b)
of the Act. To make these regulations a freestanding document, the due
process hearing procedures for resolving individual child complaints in
proposed Sec. Sec. 303.440 through 303.449 would include language from
section 615(b)(6) and (7), (c)(2), (e)(2)(F), (f), (h), (i), (l), and
(o) of the Act.
Confidentiality
Proposed Sec. 303.401 would combine current Sec. Sec. 303.402 and
303.460 to clarify when the confidentiality provisions in Part C of the
Act apply, to mandate very limited disclosure between specific agencies
for purposes of child find activities, to make other changes to conform
to the Act, and to allow a lead agency to establish procedures that
would inform parents of a potential referral and provide an opportunity
to object prior to the disclosure. The note following current Sec.
303.460 regarding the confidentiality requirements and the provisions
of FERPA, would be removed because the substance of the applicable
language is included in proposed Sec. Sec. 303.401 and 303.402.
Proposed Sec. 303.401(b) would remain substantively unchanged from
current Sec. 303.402, except that, instead of referencing the
confidentiality provisions from Part B of the Act, proposed Sec.
303.401(b) references proposed Sec. Sec. 303.402 through 303.417,
which would include the language of these requirements as modified to
apply to lead agencies and EIS providers under Part C of the Act.
Proposed Sec. 303.401(b)(1) would clarify that the Part C
confidentiality provisions are consistent with, but broader than, the
provisions under FERPA.
Proposed Sec. 303.401(c) would clarify that the Part C
confidentiality provisions apply, when the child is referred for early
intervention services under Part C of the Act and continue to apply
until the time when the lead agency, public agency or EIS provider is
no longer required to maintain or maintains such information under
applicable Federal and State laws. The proposed provisions would
clarify that as long as the lead agency, public agency or EIS provider
is required to maintain, or maintains such records under Part C of the
Act, the confidentiality provisions would apply to ensure appropriate
privacy of Part C early intervention records.
Proposed Sec. 303.401(d) would be added to incorporate the child
find requirements from sections 612(a), 635(a)(6), and 637(a)(9) of the
Act and require the very limited disclosure of personally-identifiable
information during child find activities. This provision incorporates
existing Department policy.
Proposed Sec. 303.401(e) would permit States to adopt a policy to
require any public agency or EIS provider, prior to the limited
disclosure, to inform the parent of the intended disclosure required
under proposed Sec. Sec. 303.401(d) and 303.209(b)(2), and would allow
the parent an opportunity to object to the disclosure in writing.
Permitting States to adopt this policy would balance the privacy
interests of parents of children receiving services under Part C of the
Act, with the lead agency's and SEA's responsibilities to identify
children potentially eligible for services under IDEA. Consistent with
proposed Sec. 303.209, if the State adopted such an ``opt-out''
policy, that policy must be on file with the Secretary as part of the
State's application under Part C of the Act.
Additional Confidentiality Requirements
Proposed Sec. Sec. 303.402 through 303.417 would be added in order
to create freestanding regulations that can be easily used by parents,
lead and public agencies, and EIS providers and that would include the
confidentiality requirements from 34 CFR 300.610 through 300.627 of the
Part B regulations (71 FR 46802-46804) that apply to Part C of the Act
under current Sec. Sec. 303.402 and 303.460. These confidentiality
requirements would be amended, where appropriate, to apply to Part C
lead agencies and EIS providers to ensure confidentiality of Part C
records but would not be substantively changed from the corresponding
provisions in the Part B regulations. For example, proposed Sec.
303.405(a), regarding access rights, requires the agency to comply with
a request no more than 20 days after a request has been made, whereas
the corresponding requirement in 34 CFR 300.613(a) of the Part B
regulations (71 FR 46803) requires a response no more than 45 days
after the request. The variance in the timelines is to accommodate the
30-day timeline for due process hearings under Part C of the Act, as
opposed to the 45-day timeline in Part B of the Act.
[[Page 26476]]
In addition, proposed Sec. 303.414(d) would codify an express
exception to the general parental consent requirement for release of
personally identifiable information in early intervention records to
reflect the role of Protection and Advocacy (P&A) systems under the
Developmental Disabilities Assistance and Bill of Rights Act of 2000
(DD Act). Under the DD Act, which is administered by the Department of
Health and Human Services, a P&A system may need access to early
intervention records in specific circumstances.
Proposed Sec. 303.414(d)(1) would cross-reference the requirement
in section 143(a)(2)(I)(iii)(III) of the DD Act, that authorizes P&A
systems under the DD Act to obtain access to contact information
(including the name, address and telephone number) of the parent or
legal guardian or representative of an infant or toddler with a
disability in cases where they have probable cause to believe that such
a child is an individual with a developmental disability who has been
subject to abuse or neglect. 42 U.S.C. 15043(a)(2)(I)(iii). Proposed
Sec. 303.414(d)(1) would enable the lead agency or participating
agency to disclose to the P&A system this contact information that
would otherwise be considered personally identifiable information under
Part C of the Act when the P&A system expressly requests this
information under section 143(a)(2)(I)(iii) of the DD Act.
Proposed Sec. 303.414(d)(2) would expressly also permit the lead
agency or participating agency to disclose personally identifiable
information in early intervention records in order to provide the P&A
system access to the early intervention record of an infant or toddler
with a disability when the P&A system requests access under either
section 143(a)(2)(I)(iii) or section 143(a)(2)(J) of the DD Act. Under
section 143(a)(2)(I)(iii) of the DD Act, the P&A system is authorized
to have access where the P&A system has probable cause to believe that
an individual with a developmental disability has been subject to abuse
or neglect, it has contacted the parents to offer assistance, and the
parents have refused to act. Under Section 143(a)(2)(J)(ii) of the DD
Act, the P&A system is authorized to have immediate access to the early
intervention records of an infant or toddler with a disability who is
an individual with a developmental disability without that child's
parental consent in a case where a P&A system has probable cause to
believe that the health and safety of that individual are in serious
and immediate jeopardy.
Parental Consent and Notice
Proposed Sec. 303.420(a) and (b), regarding parental consent and
notice, would be substantively unchanged from current Sec. 303.404 and
would add ``and ability to decline service'' in the heading to better
align the regulation with section 639(a)(3) of the Act. Proposed Sec.
303.420(a) would specifically indicate that the lead agency must ensure
that parental consent is obtained before an evaluation and assessment
of a child would be conducted under proposed Sec. 303.320, before the
provision of early intervention services, prior to the use of the
parent's public or private insurance under proposed Sec. 303.520, and
prior to the exchange of personally identifiable information consistent
with proposed Sec. 303.401.
The term ``initial'' in current Sec. 303.404(a)(1) would not be
included in proposed Sec. 303.420(a)(1) in order to clarify,
consistent with Part B in section 614(c)(3) of the Act and the practice
in the vast majority of Part C State early intervention programs, that
parental consent is required not only for the initial evaluation but
also for reevaluation of a child under Part C of the Act. Because the
Part C parental consent provisions in section 639(a)(3) of the Act are
broader (and more appropriate for the parents of infants and toddlers
with disabilities) than the consent provisions under Part B in section
614(c) of the Act, the exceptions to requiring the public agency to
obtain parental consent in section 614(c)(3) of the Act and 34 CFR
300.300(c) of the Part B regulations (71 FR 46784) do not apply to Part
C of the Act.
Proposed Sec. 303.420(b) would be unchanged from current Sec.
303.404(b) regarding the lead agency's responsibilities if the parent
does not provide consent.
Proposed Sec. 303.420(c) would be added to include the language of
Note 2 following current Sec. 303.404 to clarify that a lead agency
may, but is not required to, use the due process hearing procedures to
challenge the parent's refusal to consent to an evaluation and
assessment of the child. The term ``initial'' in Note 2 would not be
incorporated into proposed Sec. 303.420(c) because the lead agency
may, but is not required to, use due process hearing procedures to
override parental refusal to provide consent for any evaluation, not
just the initial evaluation. The substance of Note 1, regarding
parental consent, following current Sec. 303.404 would be included
where applicable in proposed Sec. 303.420; and the substance of Note
1, regarding personably identifiable information, would be included in
proposed Sec. 303.401(c).
Proposed Sec. 303.420(d) would incorporate the requirements in
section 639(a)(3) of the Act and current Sec. 303.405, and clarify the
parent's right to accept or decline any early intervention service at
any time.
Proposed Sec. 303.421, regarding prior written notice, would be
substantively unchanged from current Sec. 303.403 and would
incorporate section 639(a)(6) and (7) of the Act. Proposed Sec.
303.421(c) would be substantively unchanged from current Sec.
303.403(c) except that the provisions in current Sec. 303.403(c)(3)
would be moved to the definition of native language in proposed Sec.
303.25.
Surrogate Parents
Proposed Sec. 303.422, regarding surrogate parents, would be
substantively unchanged from current Sec. 303.406, except proposed
Sec. Sec. 303.422(b)(2), 303.422(c)(2)(i) and 303.422(e), would
contain new language. Additionally, we used the statutory word
``locate'' in proposed Sec. 303.422(a)(2), rather than the term
``discover the whereabouts'' used in current Sec. 303.406(a)(2).
``Locate'' as used in proposed Sec. 303.422(a)(2), regarding a lead
agency's efforts to locate the child's parent, means that a lead agency
makes reasonable efforts to discover the whereabouts of a parent, as
defined in proposed Sec. 303.27, before assigning a surrogate parent.
Proposed Sec. 303.422(b)(2) would clarify that in implementing the
provisions for determining when a surrogate parent is needed and
assigning one for an infant or toddler who is a ward of the State or
placed in foster care, the lead agency must consult with the public
agency to which care of the infant or toddler has been assigned. This
provision would be added due to the potential increase in the number of
infant or toddler referrals under CAPTA and from child protective
service agencies, recognizing that lead agencies may not have current
updated data on families. However, this consulting requirement is not
intended to be a burden, and consultation can occur by telephone, e-
mail, or other means established by the lead agency and consistent with
the interagency confidentiality requirements.
Proposed Sec. 303.422(c)(2)(i) would incorporate the language from
section 639(a)(5) of the Act, and would prohibit the assignment of a
surrogate parent who is an employee of the lead agency or any other
public agency or EIS provider that provides early intervention or other
services to the child or any family member of the child.
[[Page 26477]]
Current Sec. 303.406(d)(1) would be removed because it would be
redundant with proposed Sec. 303.422(c)(2)(i). Proposed Sec.
303.422(e) would be substantively unchanged from current Sec.
303.406(e), and would clarify that the surrogate parent has the same
rights as a parent for all purposes under this part.
Dispute Resolution Options
Proposed Sec. 303.430(a) would require each State system to make
available dispute resolution options under Part C of the Act that would
include mediation, due process hearing procedures, and State complaint
procedures in current Sec. Sec. 303.419, 303.420 through 303.425, and
303.510 through 512, respectively.
Proposed Sec. 303.430(b) would clarify that each lead agency must
make mediation available as required in proposed Sec. 303.431, and
would incorporate language from sections 615(e) and 639(a)(8) of the
Act and current Sec. 303.419.
Proposed Sec. 303.430(c) would be aligned with the Part B
administrative complaint procedures in 34 CFR 300.151 through 300.153
of the Part B regulations (71 FR 46770-46771) and would continue to
require, as set forth in current Sec. 303.510, that each lead agency
adopt written State complaint procedures that meet the requirements in
proposed Sec. Sec. 303.432 through 303.434 to resolve any complaints
filed by any party regarding any violation of this part.
Proposed Sec. 303.430(d) would continue to allow lead agencies the
option of using the Part C due process hearing procedures under
proposed Sec. Sec. 303.435 through 303.439, or the Part B due process
hearing procedures under proposed Sec. Sec. 303.440 through 303.449
(with the option of adopting either a 30-day or 45-day timeline).
Proposed Sec. 303.430(e)(1) and (2) would incorporate the pendency
language in section 639(b) of the Act and current Sec. 303.425
regarding the services that must be provided during the pendency of a
due process complaint. Proposed Sec. 303.430(e)(1) would further
clarify that the child must continue to receive those early
intervention services that are identified on the IFSP to which the
parent has provided consent and in the settings identified on the IFSP,
unless the lead agency and parent otherwise agree.
Proposed Sec. 303.430(e)(3)(i) would clarify that if a child turns
three and the child's eligibility under Part B of the Act has not yet
been determined in a State that has adopted the option to provide Part
C services beyond age three, then the lead agency must continue to
provide Part C services to that child under proposed Sec.
303.211(b)(4). Proposed Sec. 303.430(e)(3)(ii) would clarify that once
a child turns three and has been determined ineligible for services
under Part B of the Act and proposed Sec. 303.211, Part C pendency
does not apply and the lead agency is not required to provide Part C
services to that child during the pendency of any due process hearing
procedure challenging the determination of ineligibility.
Mediation
Proposed Sec. 303.431, regarding mediation, would remain
substantively unchanged from the current Sec. 303.419 but would
include several mediation provisions based on revisions in section
615(e) of the Act, which applies to Part C through section 639(a)(8) of
the Act. Each lead agency must ensure that procedures are established
and implemented to allow parties to disputes involving any matter under
this part, including matters arising prior to the filing of a due
process complaint, to resolve disputes through a mediation process, as
indicated in proposed Sec. 303.431(a). Proposed Sec. 303.431(b) would
include the requirements in current Sec. 303.419(b).
Additionally, proposed Sec. 303.431(b)(5) and (b)(6) would
incorporate the requirements in sections 615(e) and 639(a)(8) of the
Act and require that if mediation results in resolution of a complaint,
the parties must execute a legally binding agreement that describes the
resolution of the matter and states that discussions that occurred
during mediation shall be confidential and not used as evidence in any
subsequent due process hearing or civil proceeding. The proposed
regulation would require that the agreement be signed by the parent and
a lead agency representative who has authority to bind the agency, and
state that the agreement would be enforceable in any State court of
competent jurisdiction or in a district court of the United States.
Proposed Sec. 303.431(c) would provide requirements for the
impartiality of the mediator consistent with sections 615(e)(2) and
639(a)(8) of the Act. Proposed Sec. 303.431(d), regarding a meeting to
encourage mediation, would incorporate the language in current Sec.
303.419(c). Current Sec. 303.419(b)(6), regarding the requirement that
parties sign a confidentiality pledge, would be removed to align with
section 615(e) of the Act.
State Complaint Procedures
Proposed Sec. 303.432, regarding the requirement for the lead
agency to adopt written State complaint procedures, would be
substantively unchanged from current Sec. 303.510 except that the
provision in current Sec. 303.510(a)(1)(ii), regarding the option for
a local public agency to resolve a complaint, would be removed. This
provision would be removed because, under Part C of the Act, (unlike
Part B of the Act) virtually all States utilize only the lead agency
for the resolution of complaints. In addition, because relatively few
State complaints are filed under Part C of the Act eliminating this
option would not create any additional burden for States. During
Federal fiscal year 2004 the average number of State complaints filed
under Part C of the Act was less than 2.0 per State.
Proposed Sec. 303.433, regarding the requirements for minimum
State complaint procedures, would remain substantively unchanged from
current Sec. 303.512.
Proposed Sec. 303.433(a)(3) would clarify that a lead agency's
State complaint procedures must provide the lead agency, public agency,
or EIS provider with an opportunity to respond to a complaint filed
under proposed Sec. 303.430(c), including, at a minimum, an
opportunity for a parent who has filed a complaint and the lead agency,
public agency, or EIS provider to voluntarily engage in mediation,
consistent with proposed Sec. 303.430(b). Proposed Sec.
303.433(b)(1)(ii) regarding time extensions for filing a State
complaint, would clarify that it would be permissible to extend the 60-
day timeline if the parent (or individual or organization, if mediation
is available to the individual or organization under State procedures)
and the lead agency, public agency or EIS provider agree to engage in
mediation, consistent with proposed Sec. 303.433(a)(3)(ii). Proposed
Sec. 303.433(c)(3) would incorporate the provisions in current Sec.
303.512(c)(3).
Proposed Sec. 303.434, regarding filing a complaint, would remain
substantively unchanged from current Sec. 303.511 except proposed
Sec. 303.434(b)(3) and (4) would require a parent filing a State
complaint to provide the lead agency, public agency, or EIS provider
with information about the child who is the subject of the complaint,
which may allow the lead agency, public agency, or EIS provider to
attempt to resolve the complaint at the earliest opportunity. In
addition, proposed Sec. 303.434(c) would amend the language in current
Sec. 303.511(b) to require that the complaint must allege that a
violation
[[Page 26478]]
occurred not more than one year prior to the date the complaint is
received, and would remove references to longer periods for continuing
violations to ensure expedited resolution for public agencies and
children.
Proposed Sec. 303.434(d) would require that the party filing a
complaint forward a copy of the complaint to the public agency or EIS
provider serving the child at the same time the party files the
complaint with the lead agency. This provision would ensure that the
public agency or EIS provider involved has knowledge of the issues, and
an opportunity to resolve them directly with the complaining party.
States That Choose To Adopt the Part C Due Process Hearing Procedures
Under Section 639 of the Act
Proposed Sec. Sec. 303.435 through 303.439, regarding due process
hearing procedures under Part C of the Act, would remain substantively
unchanged from current Sec. Sec. 303.420 through 303.425, except that
the references to ``impartial procedures'' would be replaced with ``due
process hearing'' to distinguish these procedures from the State
administrative complaint procedures in proposed Sec. Sec. 303.432
through 303.434 and in proposed Sec. 303.430(c). Note 1 following
current Sec. 303.420, regarding the adoption of Part C impartial
procedures for resolving individual child complaints, would be removed
because it is substantively incorporated into proposed Sec. Sec.
303.435 through 303.439. Also, the complaint procedures in Note 1
following current Sec. 303.420 would be substantively incorporated
into proposed Sec. Sec. 303.432 through 303.434. Note 2 following
current Sec. 303.420, indicating that the administrative procedures
developed by a State should be designed to result in speedy resolution
of complaints, because an infant's or toddler's development is so rapid
that undue delay could be potentially harmful, would not be included in
these proposed regulations because the process for the resolution of
due process hearing procedures, including timelines, is addressed in
proposed Sec. Sec. 303.435 through 303.449.
Proposed Sec. 303.435, regarding appointment of an impartial due
process hearing officer, would remain substantively unchanged from the
current Sec. 303.421.
Proposed Sec. 303.436, regarding parental rights in due process
hearing procedures, would remain substantively unchanged from the
current Sec. 303.422.
Proposed Sec. 303.437, regarding convenience of hearings and
timelines, would remain substantively unchanged from the current Sec.
303.423.
Proposed Sec. 303.438, regarding civil actions, would remain
substantively unchanged from current Sec. 303.424.
States That Choose To Adopt the Part B Due Process Hearing Procedures
Under Section 615 of the Act
Proposed Sec. Sec. 303.440 through 303.448 would incorporate the
due process hearing procedures for resolving individual child
complaints under section 615 of the Act and 34 CFR 300.507, 300.508,
and 300.510 through 300.516 of the Part B regulations (71 FR 46793-
46796), and proposed Sec. 303.449 would align with section
615(e)(2)(F) of the Act. These regulations are included to make these
proposed Part C regulations a freestanding document to assist families,
EIS providers, and lead agencies in accessing the provisions of the
Part B due process hearing procedures under section 615 of the Act,
which a Part C lead agency may choose to adopt under proposed Sec.
303.430(d).
The note following current Sec. 303.423 would not be included in
the proposed regulations because the procedures for resolving Part B
due process complaints under section 615 of the Act would be
substantively included in proposed Sec. Sec. 303.440 through 303.449,
except that the portion of the note regarding the State being
encouraged (but not required) to accelerate the timeline for the due
process hearing because the needs of children in the birth-through-two
age range change rapidly, would be removed because the process for the
resolution of impartial individual child complaints, including
timelines, is addressed in proposed Sec. Sec. 303.440 through 303.449.
Proposed Sec. 303.440(a) would reflect the change in 34 CFR
300.507(a) of the Part B regulations (71 FR 46793), regarding
initiating a due process hearing on matters regarding the
identification, evaluation, or placement of a child, or the provision
of appropriate early intervention services, to specify that a party
could ``file a due process complaint,'' as opposed to ``initiate,'' a
hearing on these matters.
Proposed Sec. 303.440(a)(2) would reflect the requirement in
section 615(b)(6)(B) of the Act concerning the time period for filing a
request for a due process hearing after the alleged violation has
occurred. Proposed Sec. 303.440(b), consistent with the revision to 34
CFR 300.507(b) of the Part B regulations (71 FR 46793), would include
information regarding the responsibility of the lead agency, under
certain circumstances, to provide information about available free or
low-cost legal or other relevant services to parents.
Proposed Sec. 303.440(c) would clarify that the lead agency may
adopt a 30- or a 45-day timeline, subject to proposed Sec. 303.447(a),
for the resolution of due process complaints and must specify in its
written policies and procedures under proposed Sec. 303.123 and in its
prior written notice under proposed Sec. 303.421, the specific
timeline that it has adopted.
Proposed Sec. 303.441 would substantively include language from 34
CFR 300.508 of the Part B regulations (71 FR 46793-46794) regarding due
process complaints. Additionally, proposed Sec. 303.441(a), (b), and
(c) would incorporate new language from section 615(b)(7) of the Act.
Proposed Sec. 303.441 would include language concerning the obligation
to provide a due process complaint to the other party, the required
content of the complaint notice, and the requirement that a due process
hearing may not be held until the party, or the attorney representing
the party, files the due process complaint. These changes should help
clarify that the complaint and complaint notice would be the same
document, which should aid in smooth implementation of these new
provisions.
Proposed Sec. 303.441(a)(2) would require the party requesting the
hearing to forward a copy of the due process complaint to the lead
agency to align with section 615(b)(7)(A)(i) of the Act. Proposed Sec.
303.441(b) would address the contents of the due process complaint and
would align with section 615(b)(7)(A)(ii) of the Act. Proposed Sec.
303.441(c), regarding the notice required before a hearing on a due
process complaint, would include language from section 615(b)(7)(B) of
the Act. Proposed Sec. 303.441(d) and (e) would incorporate the new
language from section 615(c)(2) of the Act concerning due process
complaint sufficiency and response to a due process complaint. Proposed
Sec. 303.441(e) would address the lead agency's or EIS provider's
responsibility to send a parent a response to the due process complaint
if the lead agency had not sent a prior written notice to the parent
regarding the subject matter contained in the parent's due process
complaint. Proposed Sec. 303.441(e)(1) would outline what information
must be contained in the response.
Proposed Sec. 303.442 would substantively include language from 34
CFR 300.510 of the Part B regulations (71 FR 46794) regarding the
resolution process. Additionally, proposed Sec. 303.442(a)(4) would be
added to
[[Page 26479]]
include the substance of note 212 of the Conf. Rpt. that the parent and
the lead agency must determine the relevant members of the IFSP team to
attend the resolution meeting. Proposed Sec. 303.442(b)(2) would
clarify that the regulatory timeline for issuing a final due process
hearing decision begins at the end of the 30-day resolution period that
starts when the due process complaint is received. This provision is
based on the language in section 615(f)(1)(B)(ii) of the Act stating
that the applicable timelines for a due process hearing commence at the
end of this 30-day period. Proposed Sec. 303.442(b)(3) would provide,
however, that the resolution process and due process hearing would be
delayed until the resolution meeting is held if a parent filing a due
process complaint fails to participate in the resolution meeting.
Proposed Sec. 303.442(b)(3) is based on H. Rep. No. 108-77, p. 114
that provides: ``[If] the parent and the State or lead agency mutually
agree that the meeting does not need to occur, the resolution session
meeting does not need to take place. However, unless such an agreement
is reached, the failure of the party bringing the complaint to
participate in the meeting will delay the timeline for convening a due
process hearing until the meeting is held.''
Proposed Sec. 303.442(c) would incorporate the requirement from
section 615(f)(1)(B) of the Act, regarding the conducting of resolution
meetings, unless waived by joint agreement of the parties prior to the
opportunity for an impartial due process hearing. Proposed Sec.
303.442(d) includes language from section 615(f)(1)(B)(iii) of the Act
regarding the contents of a legally binding written settlement
agreement. Proposed Sec. 303.442(e) includes language from section
615(f)(1)(B)(iv) of the Act regarding the ability of a party who
executed a settlement agreement to void the agreement within three
business days.
Proposed Sec. 303.443 would substantively include language from 34
CFR 300.511 of the Part B regulations (71 FR 46794-46795) regarding
impartial due process hearings. Additionally, proposed Sec. 303.443(a)
and (b) would incorporate the language from section 615(f)(1)(A) of the
Act regarding impartial due process hearings. Proposed Sec. 303.443(b)
would include the language from section 615(f)(1)(A) of the Act, and
would indicate that the lead agency directly responsible for the early
intervention services of the infant or toddler, as determined under
State statute, be responsible for conducting the due process hearing.
Proposed Sec. 303.443(c)(1) would include the language regarding
qualifications of hearing officers from section 615(f)(3)(A) of the
Act. Proposed Sec. 303.443(c) would incorporate the regulatory
language in 34 CFR 300.511(c) of the Part B regulations (71 FR 46795)
regarding the non-employee status of the hearing officer and the
requirement for the public agency to keep a list of hearing officers
and their qualifications. Proposed Sec. 303.443(d), (e), and (f) would
include the requirements in section 615(f)(3)(B), (C), and (D) of the
Act concerning the subject matter of the due process hearings,
timelines for requesting hearings and exceptions to the timelines,
respectively.
Proposed Sec. 303.444(a), (b), and (c) would incorporate the due
process hearing rights addressed in section 615(f)(2) and (h) of the
Act and in 34 CFR 300.512 of the Part B regulations (71 FR 46795). In
addition, proposed Sec. 303.444(a)(4) and (5) would include the
language from section 615(h)(3) and (4) of the Act indicating that
parents would have a right to obtain copies of a written, or, at the
option of the parents, electronic, verbatim record of the hearing and
copies of findings of fact and decisions, and public agencies would
remain responsible for ensuring that these rights are effectively
implemented. The language in 34 CFR 300.512(c)(3) of the Part B
regulations (71 FR 46795) concerning providing the record of the
hearing and decision at no cost to the parents is included in proposed
Sec. 303.444(c)(3).
Proposed Sec. 303.445 would substantively include language from 34
CFR 300.513 of the Part B regulations (71 FR 46795) regarding hearing
decisions. Proposed Sec. 303.445(a) would include the language in
section 615(f)(3)(E) of the Act concerning the nature of hearing
officer decisions, including the requirement that decisions be made on
substantive grounds, and the standards for when procedural violations
can be found to deny appropriate identification, evaluation, placement,
or provision of early intervention services, and would clarify that a
hearing officer can order an EIS provider to comply with procedural
requirements.
Proposed Sec. 303.445(b) would incorporate the construction clause
from section 615(f)(3)(F) of the Act. In addition, proposed Sec.
303.445(b) would clarify language in note 225 of the Conf. Rpt., which
indicates that the statutory reference to a complaint was intended to
address a State-level administrative appeal process, if available in
that State.
Proposed Sec. 303.445(c) would incorporate the requirement from
section 615(o) of the Act that nothing prevents a parent from filing a
separate due process complaint on an issue separate from the due
process complaint that has already been filed. However, note 220 of the
Conf. Rpt. states that: ``the Conferees intend to encourage the
consolidation of multiple issues into a single complaint where such
issues are known at the time of the filing of the initial complaint.''
Proposed Sec. 303.445(d) would include the language from section
615(h)(4)(A) of the Act concerning the availability of hearing
decisions to the public. This is also consistent with the requirements
of section 617(b) of the Act relating to the confidentiality of data.
Proposed Sec. 303.446, on finality of decision, appeal, and
impartial review, and proposed Sec. 303.447, regarding timelines and
convenience of hearings and reviews, would substantively include 34 CFR
300.514 and 300.515, respectively, of the Part B regulations (71 FR
46795-46796), with cross-references updated to include the proposed
regulations under Part C of the Act.
Proposed Sec. 303.447(a) also would be revised to start the 45-day
timeline from the expiration of the 30-day period for resolution under
proposed Sec. 303.442, rather than from the date when the agency
receives a due process complaint. This change is based on revised
language in section 615(f)(1)(B)(ii) of the Act providing that the
timelines for a due process hearing commence at the expiration of the
resolution period.
Proposed Sec. 303.448(a) through (e), regarding civil actions,
incorporates the language from section 615(i)(2), (i)(3)(A), and (l) of
the Act and would substantively include language in 34 CFR 300.516 of
the Part B regulations (71 FR 46796). Additionally, the requirement in
section 615(i)(2)(B) of the Act is included in proposed Sec.
303.448(b), which provides for a time limit of 90 days from the date of
the final State administrative decision to file a civil action, or if
the State has an explicit time limitation for bringing a civil action
under Part C of the Act, in the time allowed by that State law.
Proposed Sec. 303.449 would include language from section 615(e)(2)(F)
and (f)(1)(B) of the Act regarding the State's use of other mechanisms
to enforce mediation.
Subpart F--Use of Funds and Payor of Last Resort
Proposed subpart F would incorporate provisions in sections 632,
635, 638, and 640 of the Act regarding use of Part
[[Page 26480]]
C funds, payor of last resort provisions, and system of payments
requirements.
General
Proposed Sec. 303.500 would require each statewide system to have
written policies and procedures that meet the fiscal and interagency
requirements set forth in the system of payments, interagency, use of
funds, confidentiality, and payor of last resort provisions in sections
632(4)(B), 635(a)(10), 635(a)(12), 638, 639(a)(2), and 640 of the Act.
Proposed Sec. 303.500 would clarify that a State's written policies
and procedures must include the identification and coordination of
funding resources for, and the provision of, early intervention
services under Part C of the Act within the State and would incorporate
the requirements in current Sec. Sec. 303.173 and 303.174 and in
sections 634, 635 and 640 of the Act.
Use of Funds
Proposed Sec. 303.501, regarding permissive use of funds by the
lead agency would incorporate the provisions in section 638 of the Act
and the provisions in current Sec. Sec. 303.3 and 303.560, modified to
reflect statutory changes. The major substantive change from the
current regulations is in proposed Sec. 303.501(d). Proposed Sec.
303.501(d) would incorporate the language from section 638(4) of the
Act regarding the permissive use of Part C funds to make early
intervention services available to children ages three and older
consistent with proposed Sec. 303.211.
Payor of Last Resort
Proposed Sec. 303.510, regarding payor of last resort
requirements, reflects the provisions in section 640(a) and (c) of the
Act, and would remain substantially unchanged from the provisions in
current Sec. 303.527. Proposed Sec. 303.510(b), regarding interim
payments when reimbursement is delayed, would be substantively the same
as the language in current Sec. 303.527(b)(2)(i) through (iii) and
(b)(3).
Proposed Sec. 303.511, regarding establishing financial
responsibility for and methods of ensuring services, would combine many
of the provisions in current Sec. Sec. 303.520 through 303.528 with
modifications to reflect the statutory provisions in section 640(b) of
the Act. Section 640(b) of the Act provides that a State may meet
certain fiscal and interagency coordination requirements regarding
provision of services under Part C of the Act by using one of three
methods: (1) State law or regulations, (2) interagency or intra-agency
agreements that identify the responsibilities of each agency, or (3)
other appropriate written methods (once approved by the Secretary).
Proposed Sec. 303.511(a)(1) through (3) would identify these three
options.
Proposed Sec. 303.511(b) would require, consistent with section
640(b)(1)(A) of the Act and current Sec. 303.523, that each method
define the financial responsibility of each agency for paying for early
intervention services or other functions authorized under Part C of the
Act, including child find and evaluations and assessments, consistent
with State law and the requirements of Part C of the Act.
Proposed Sec. 303.511(c)(1) would require, consistent with section
640(b)(1)(A)(ii) of the Act and current Sec. Sec. 303.523(c) and
303.528, that each method must include procedures for achieving a
timely resolution of intra-agency and interagency disputes about
payments for a given service, or disputes about other matters related
to the State's early intervention service program. Those proposed
procedures would require a mechanism for resolution of intra-agency
disputes within agencies and for the Governor, Governor's designee, or
the lead agency to make a final determination for interagency disputes,
which determination must be binding upon the agencies involved.
Proposed Sec. 303.511(c)(2) would clarify that the method must
permit the agency to resolve its own internal disputes (based on the
agency's procedures that are included in the agreement), so long as the
agency acts in a timely manner; and include the process that the lead
agency will follow in achieving resolution of intra-agency disputes, if
a given agency is unable to resolve its own internal disputes in a
timely manner.
Proposed Sec. 303.511(c)(3) would incorporate the Note following
current Sec. 303.523 regarding interagency dispute resolution to
require that if, during the lead agency's resolution of the dispute,
the Governor, Governor's designee, or lead agency determines that the
assignment of financial responsibility under proposed Sec. 303.511 was
inappropriately made, the Governor, Governor's designee or lead agency
must reassign the responsibility to the appropriate agency; and the
lead agency must make arrangements for reimbursement of any
expenditures incurred by the agency originally assigned responsibility.
Proposed Sec. 303.511(d), regarding the delivery of services in a
timely manner, would incorporate these requirements from current Sec.
303.525 and require that the methods adopted by the State under
proposed Sec. 303.511 must include a mechanism to ensure that no
services that a child is entitled to receive under Part C of the Act
are delayed or denied because of disputes between agencies regarding
financial or other responsibilities; and must be consistent with the
written funding policies adopted by the State under proposed Sec.
303.511.
Proposed Sec. 303.511(e) would require that each method must
include any additional components necessary to ensure effective
cooperation and coordination among, and the lead agency's general
supervision (including monitoring) of, all public agencies and early
intervention service providers involved in the State's early
intervention service programs.
Use of Insurance, Benefits, Systems of Payment, and Fees
Proposed Sec. 303.520, regarding policies related to use of
insurance for payment for services, and proposed Sec. 303.521,
regarding a system of payments and fees, would incorporate certain
requirements in current Sec. Sec. 303.520 and 303.521.
Public Insurance and Benefits and Private Insurance
Proposed Sec. 303.520(a) and (b), regarding policies related to
use of public insurance or benefits and private insurance for payment
for services, would clarify when public insurance or benefits and
private insurance may be used to pay for services pursuant to sections
632(4)(B), 635(a)(10), and 640 of the Act.
Proposed Sec. 303.520(a)(1)(i), consistent with sections 632(4)(B)
and 639(a)(2) of the Act, would allow a State to access a parent's
public insurance or benefits when the parent is already enrolled if the
parent provides consent to disclose personally identifiable information
in accordance with proposed Sec. 303.414.
Proposed Sec. 303.520(a)(1)(ii) would clarify that a lead agency
may use public insurance or benefits, without first obtaining parental
consent under proposed Sec. Sec. 303.7, 303.414, and 303.420(a)(3),
for children in foster care when these children are eligible under the
State's Medicaid plan. This provision was added because the Act places
significant emphasis on finding children in foster care, and it is
important to clarify for lead agencies the circumstances under which
they may access public insurance or benefits for these children.
Moreover, the provisions in existing laws deem virtually all children
receiving foster care assistance under section 472 of the Social
Security Act to be automatically eligible for
[[Page 26481]]
Medicaid under Title XIX of the Social Security Act.
Proposed Sec. 303.520(a)(1)(iii) would clarify that a State may
access a parent's public insurance or benefits program when the parent
is not already enrolled in a public insurance or benefits program if
the parent provides consent under proposed Sec. Sec. 303.7, 303.414,
and 303.420(a)(3), to enroll in such a program. This provision would be
added to clarify existing confidentiality requirements. This provision
also is necessary to ensure parents are aware of the opportunity to
enroll, and provide informed consent prior to enrollment, in a public
insurance or benefits program because enrollment in a public insurance
or benefits program can potentially have significant negative impact on
an individual's insurability, credit rating, immigration status, and
status under other Federal assistance programs.
Proposed Sec. 303.520(a)(2) would clarify that, if a State
requires parents to pay the costs incurred as a result of participating
in a public insurance or benefits program (such as co-payments,
premiums or deductibles or the required use of private insurance as the
primary insurance), these costs must be identified in the State's
policies regarding its system of payments under proposed Sec. 303.521.
Proposed Sec. 303.520(a)(3) would clarify that when obtaining
parental consent under proposed Sec. 303.520(a), the lead agency must
provide parents with a copy of the State's system of payments policies
that identify potential costs that the parent may incur while enrolled
in a public insurance or benefits program and to ensure that the
consent is informed. Proposed Sec. 303.520(a)(3) is being added to
ensure that parents would be informed of those costs as part of
consenting to the use of public insurance or benefits to pay for early
intervention services.
Proposed Sec. 303.520(b)(1)(i) would permit States to use private
insurance to pay for early intervention services if the State obtains
parental consent as defined in proposed Sec. 303.7 and in accordance
with proposed Sec. Sec. 303.414 and 303.420(a)(3) prior to accessing
the parent's private insurance.
Proposed Sec. 303.520(b)(1)(ii) would require that any types of
costs (including co-payments, premiums or deductibles) that may be
charged to the parent as a result of using the parent's private
insurance be identified in the State's system of payments policies
under proposed Sec. 303.521. Proposed Sec. 303.520(b)(1)(iii) would
require that a copy of this policy be provided to parents when
obtaining consent.
Proposed Sec. 303.520(b)(1)(iv) would incorporate requirements in
current Sec. 303.520(b)(3) that, if a parent or family is determined
unable to pay under the State's definition of inability to pay that is
required in proposed Sec. 303.521(a)(3) and does not provide consent
under proposed Sec. 303.520(b)(1)(i), the lack of consent may not be
used to delay or deny any Part C services to the child or family.
Proposed Sec. 303.520(b)(2) would provide a specific exception to
the parental consent requirements in proposed Sec. 303.520(b)(1) for
those States that have adopted specific statutes requiring private
insurance companies and other entities to provide coverage for Part C
early intervention services. This exception would only apply if the
State statute ensures that--(1) lifetime coverage caps for the infant
or toddler with a disability and parents are not triggered by the use
of health insurance benefits to pay for Part C early intervention
services; (2) the health insurance coverage of the infant or toddler
with a disability and his or her family may not be discontinued due to
the use of the health insurance to pay for Part C services; and (3)
health insurance premiums and costs for the infant or toddler with a
disability or his or her family may not be increased solely due to use
of the health insurance to pay for Part C services.
Proposed Sec. 303.520(b)(3) would clarify that if a State has
enacted a State statute regarding private health insurance coverage
that meets the requirements in proposed Sec. 303.520(b)(2) for early
intervention services under Part C of the Act that ensures that the use
of private health insurance to pay for Part C services, the State may
reestablish, for nonsupplanting purposes, in the next Federal fiscal
year following the effective date of the statute, a new baseline of
State and local expenditures under proposed Sec. 303.225(b). This
provision would be added to ensure that States that enacted protective
statutes as part of the State's system of payments to ensure funding
for Part C services would be able to factor in the change in funding
sources for nonsupplanting purposes under Part C of the Act.
Proposed Sec. 303.520(c)(1) and (2), regarding the treatment of
public and private insurance proceeds and reimbursements from public
benefits under 34 CFR 80.25, would remain substantively unchanged from
current Sec. 303.520(d). However, given the Federal interest in
ensuring the use of overall Federal funds (including Part C and
Medicaid funds) to increase the availability of services to children
with disabilities, the Department seeks comment on whether funds from
public benefits (such as Medicaid reimbursements) should continue to be
excluded from treatment as program income under 34 CFR 80.25.
Specifically, the Department invites comment on the potential estimated
cost to States in characterizing these funds as program income (and the
concomitant requirement that such funds be used for Part C purposes) as
well as the potential estimated benefits to the Federal program and
children served under Part C.
Proposed Sec. 303.520(c)(3) would add that if the State spends
funds from a State public insurance or benefits program or the State
portion of a Federal public benefits program (such as the State portion
of Medicaid costs) for services under this part, those funds may, but
are not required to, be considered State or local funds under proposed
Sec. 303.225(b). This proposed provision would also add however that,
if a State has elected to include such funds for purposes of
nonsupplanting provisions in proposed Sec. 303.225(b), it must
continue to aggregate such amounts for all future years. Proposed Sec.
303.520(c)(4) would add that if the State spends funds from private
insurance for services under this part, those funds are considered
neither State nor local funds for nonsupplanting purposes under
proposed Sec. 303.225.
Proposed Sec. 303.520(d)(1) and (2) would clarify that funds
received from a parent or family under a State's system of payments are
``program income'' under 34 CFR 80.25, would not need to be deducted
from the total allowable costs charged under Part C of the Act, and
must be used for the State's Part C early intervention services
program, consistent with 34 CFR 80.25(g)(1) and (2). Proposed Sec.
303.520(d)(3) would clarify that these funds would not be considered
either State or local funds for non-supplanting purposes under proposed
Sec. 303.225(b).
System of Payments and Fees
Proposed Sec. 303.521(a), regarding a State's system of payments
and fees, would incorporate language from current Sec. 303.521(a)
regarding a schedule of sliding fees and would further require States
to identify in their system of payments policies: (1) Any cost
participation fees (such as co-pays or deductible amounts) required to
be paid under Federal, State, local or private insurance or benefits
programs for which the infant or toddler with a disability or family is
enrolled, that meet the requirements of proposed Sec. Sec. 303.520 and
303.521; and (2) which
[[Page 26482]]
functions or services will be subject to the system of payments,
including any fees charged to the family as a result of using the
family's public or private insurance.
Proposed Sec. 303.521(a)(3) would require a State to include in
its system of payments policies the State's definition of inability to
pay (including its definition of income and family expenses). Proposed
Sec. 303.521(a)(4) would be substantively unchanged from current Sec.
303.520(b)(3) except that proposed Sec. 303.521(a)(4)(iii) would
require States to assure that families will not be charged more than
the actual cost of the services and families with public insurance or
benefits or private insurance will not be charged disproportionately
more than families who do not have public insurance or benefits or
private insurance.
Thus, when read together, under proposed Sec. Sec. 303.520(b) and
303.521, a Part C lead agency would continue to be able to require
parents either to pay the costs of providing early intervention
services or to provide their consent for use of their public insurance
or benefits or private insurance. Parents would have the option under
proposed Sec. 303.520(a) and (b) to allow the State to use their
public insurance or benefits or private insurance or to pay the fees
established by the State according to any system of payments
established by the State under proposed Sec. Sec. 303.520 and 303.521.
Proposed Sec. 303.521(a)(5) would specify that a State's system of
payments policies must include provisions that failure to provide the
requisite income information and documentation may result in a charge
of a fee and specify the fee that may be charged to the parent.
Proposed Sec. 303.521(a)(6) would clarify that the system of payments
policies must include provisions that a lead agency may, but is not
required to, use Part C funds or other funds to pay for costs or fees
to be paid by a parent under proposed Sec. Sec. 303.521(a)(1) and
303.520(a)(2) (use of public insurance or benefits) or (b)(1)(ii) (use
of private insurance). However, for a parent determined unable to pay
under proposed Sec. 303.521(a)(4)(ii), proposed Sec. 303.521(a)(6)
would clarify that, consistent with current requirements, the lead
agency must use Part C funds or other funds to cover the costs for the
Part C services provided to the child of the parent.
Proposed Sec. 303.521(b), regarding functions not subject to fees,
would remain unchanged from current Sec. 303.521(b). Proposed Sec.
303.521(c) regarding States with FAPE mandates, or that use Part B
funds to serve infants or toddlers with disabilities under age three,
would incorporate the longstanding requirements in current Sec.
303.521(c) that if a State is required by law to provide FAPE to
infants or toddlers with a disability under the age of three, those
services that constitute FAPE must be provided at no cost and must
comport with the requirements of Parts B and C of the Act.
Specific sections of the Act permit States to use Part B funds for
infants or toddlers with a disability under Part C of the Act and do
not require the provision of FAPE. These are:
--Section 611(e)(2)(C)(i), which allows States to use Part B funds for
direct and support services (which can include child find for children
with disabilities under Part B of the Act);
--Section 611(e)(1)(D), which allows States to use State administrative
set-aside funds under section 611 of the Act for Part C administration
if the SEA is the lead agency;
--Section 619(f)(1), which allows States to use Part B section 619
funds for support services (including mediation) for children under
three and above five if the services primarily benefit three through
five year olds;
--Section 619(f)(6), which allows Part B section 619 funds to be used
to provide service coordination or case management for families
receiving services under Part C of the Act; and
--Sections 611(e)(7) (regarding the ability to use funds available
under Part B of the Act in sections 611(e)(1)(A), 619(f)(5), and 643(e)
(regarding funds under Part C of the Act), which provisions allow the
use of specific Part B and Part C funds for providing Part C services
to children in States that elect to serve children under section 635(c)
of the Act and proposed Sec. 303.211.
In addition, section 619(a)(2) of the Act provides that Part B
section 619 funds can be used to pay for the provision of special
education and related services for two year olds who will turn three
during the school year. However, these special education and related
services (that constitute FAPE for the two-year old) would be required
to be provided at no cost to the family, consistent with the
requirements of Part B of the Act.
Proposed Sec. 303.521(d)(1) would clarify that family fees
collected under a State's system of payments are considered program
income under EDGAR, 34 CFR 80.25. Under this provision, a State would
be permitted to add these fees to its Part C grant funds rather than
deducting the program income from the State's Part C grant (which the
Department has the discretion to authorize under 34 CFR 80.25). Under
this provision, any family fees collected must be used by the State for
the purposes of the Part C grant. Proposed Sec. 303.521(d)(2) would
clarify that, under EDGAR, family fees collected under a State's system
of payments would be considered neither State nor local funds under
proposed Sec. 303.225(b).
Subpart G--State Interagency Coordinating Council
Proposed subpart G would incorporate the provisions of section 641
of the Act, regarding the State Interagency Coordinating Council
(Council), which are in current subpart G.
Proposed Sec. 303.600 would retain the provisions in current Sec.
303.600 regarding the establishment of the Council.
Proposed Sec. 303.601(a)(1)(i) and (ii) would retain the
requirements in current Sec. 303.601(a)(1)(i) and (ii) regarding
parent membership on the Council. Proposed Sec. 303.601(a)(1)(iii)
would incorporate the first paragraph in the note following current
Sec. 303.600 to require that, to avoid a potential conflict of
interest, a parent member may not be an employee of a public or private
agency involved in providing early intervention services. The second
paragraph in the note following current Sec. 303.600, suggesting that
consideration be given to maintaining an appropriate balance between
the urban and rural communities of the State, would be removed as
duplicative of proposed Sec. 303.600(b).
Proposed Sec. 303.601(a)(2) through (6) regarding the composition
of the Council would reflect the statutory provisions in section
641(b)(1)(A) through (F) of the Act and would remain substantively
unchanged from current Sec. 303.601(a)(2) through (6). Proposed Sec.
303.601(a)(7) and (11) through (13) would reflect the provisions in
section 641(b)(1)(G) and (K) through (M) of the Act, which provide for
additional members to be included on the Council. Proposed Sec.
303.601(a)(7) would provide for at least one member to be from the
agency responsible for the State Medicaid program in accordance with
section 641(b)(1)(G) of the Act. Proposed Sec. 303.601(a)(8) and (9),
regarding members from Head Start or Early Head Start and the State
agency responsible for child care, would reflect the statutory
provisions in section 641(b)(1)(H) and (I) of the Act and would be
substantively unchanged from
[[Page 26483]]
current Sec. 303.601(a)(8) and (9). Proposed Sec. 303.601(a)(10),
regarding the member from the agency responsible for the State
regulation of health insurance, would remain essentially the same as
current Sec. 303.601(a)(7) except that ``State governance'' would be
replaced with ``State regulation'' to incorporate the language in
section 641(b)(1)(J) of the Act. Proposed Sec. 303.601(a)(11) would
provide for at least one member to be from the Office of the
Coordination of Education of Homeless Children and Youth, consistent
with section 641(b)(1)(K) of the Act. Proposed Sec. 303.601(a)(12)
would provide for the Council to include a member from the State child
welfare agency responsible for foster care, consistent with section
641(b)(1)(L) of the Act and proposed Sec. 303.601(a)(13) would provide
that at least one member be from the agency responsible for children's
mental health, consistent with section 641(b)(1)(M) of the Act.
Proposed Sec. 303.601(b) would be added to clarify that the
Governor may appoint one member to represent more than one agency
listed under proposed Sec. 303.601(a)(7) through (a)(13). Proposed
Sec. Sec. 303.601(c) and (d) would retain the provisions in current
Sec. Sec. 303.601(b) and 303.604, respectively, and reflect the
requirements of section 641(b)(2) and (f) of the Act, respectively.
Proposed Sec. 303.601(d) would also incorporate the language in
section 641(f) of the Act that no member may cast a vote on any matter
that would provide direct financial benefit to the member or otherwise
give the appearance of a conflict of interest under State law.
Proposed Sec. 303.602, regarding Council meetings, would revise
current Sec. 303.603 to incorporate minor wording changes in section
641(c) of the Act. Proposed Sec. 303.602(a) would revise current Sec.
303.603(a) to be consistent with the language in section 641(c) of the
Act, including clarifying that the Council must meet, at a minimum, on
a quarterly basis. Proposed Sec. 303.602(b)(3) would remain
substantively unchanged from current Sec. 303.603(c) requiring
meetings to have interpreters, as needed, and permitting the use of
Part C funds for interpreter services at those meetings.
Proposed Sec. 303.602(b)(1), requiring that Council meetings be
announced in advance, would substantively be the same as current Sec.
303.603(b)(1). Additionally, proposed Sec. 303.602(b)(2) is
substantively unchanged from current Sec. 303.603(b)(2), requiring
that, to the extent appropriate, meetings be open and accessible to the
general public.
Proposed Sec. 303.603, regarding how the Council may use Part C
funds, would incorporate the provisions of current Sec. 303.602 and
the provisions in section 641(d) of the Act. Proposed Sec. 303.603(a)
and (b) would retain the provisions in current Sec. 303.602(a)(1)
through (5) regarding the use of funds and in current Sec. 303.602(b)
regarding the requirement that Council members must serve without
compensation from funds available under Part C of the Act, except as
provided in proposed Sec. 303.603(a).
Proposed Sec. 303.604 regarding the functions of the Council,
would combine and revise current Sec. Sec. 303.650 through 303.653,
consistent with the requirements in section 641(e) of the Act. Proposed
Sec. 303.604(a) would retain the provisions in current Sec. Sec.
303.651 and 303.652 except that proposed Sec. 303.604(a)(3) would
remove references to interagency agreements and refer instead to
``methods'' (which can include interagency agreements) as specified in
section 640(b)(3) of the Act. Proposed Sec. 303.604(a)(3) also
specifically references the proposed regulatory sections that require
interagency coordination and collaboration regarding child find,
monitoring, transition, financial responsibility, and provision of
early intervention services. Proposed Sec. 303.604(a)(4) would retain
the provisions of current Sec. 303.652 regarding the Council's
function to assist the lead agency in the preparation of applications
and amendments to those applications.
Proposed Sec. 303.604(b) would include the language from current
Sec. 303.653 that the Council must also advise and assist the lead
agency regarding transition of toddlers with disabilities to preschool
and other appropriate services.
Proposed Sec. 303.604(c)(1), in accordance with section
641(e)(1)(D) of the Act, would retain the provisions in current Sec.
303.654(a) regarding the Council's responsibility to annually report to
the Governor and to the Secretary on the status of early intervention
programs operated within the State. Proposed Sec. 303.604(c)(2) would
also retain the provision in current Sec. 303.654(b), that each annual
report must contain the information required by the Secretary for the
year for which the report is made.
Proposed Sec. 303.605(a) would reflect the provisions in current
Sec. Sec. 303.650(b) permitting the Council to advise and assist the
lead agency and SEA in the provision of appropriate services for
children with disabilities from birth through age five including the
transition from services under Part C of the Act to other appropriate
services.
Proposed Sec. 303.605(b) would incorporate current language from
current Sec. 303.650(c) permitting the Council to advise appropriate
agencies in the State with respect to the integration of services for
infants and toddlers with disabilities and at-risk infants and toddlers
and their families, regardless of whether at-risk infants and toddlers
are eligible for early intervention services in the State.
Subpart H--Federal Administration and Allocation of Funds
Proposed subpart H would incorporate provisions from sections 642
and 643 of the Act. Section 642 of the Act provides that the
requirements in section 616 of the Act regarding monitoring and
enforcement and the requirements in section 618 of the Act regarding
data collection are applicable to Part C of the Act.
The requirements in section 616 of the Act would be reflected in
proposed Sec. Sec. 303.700 through 303.708 and the requirements in
section 618 of the Act would be reflected in proposed Sec. Sec.
303.720 through 303.724. The provisions in section 643 of the Act
regarding procedures for allocating grant funds to States would be
reflected in proposed Sec. Sec. 303.730 through 303.734.
Monitoring, Technical Assistance, and Enforcement
Proposed Sec. Sec. 303.700 through 303.708 regarding monitoring
and enforcement would incorporate the statutory requirements under
section 616 of the Act, which apply to Part C of the Act under section
642 of the Act. The proposed regulatory requirements adopt the
statutory language with appropriate modifications to include the
provisions of Part C of the Act.
Proposed Sec. 303.700(a) would include the new provisions in
section 616(a)(1)(C) of the Act, which sets forth the responsibility of
States to monitor, enforce, and annually report on the implementation
of the Part C program by EIS programs, as defined in proposed Sec.
303.11. In addition, proposed Sec. 303.700(a) would require the lead
agency to make determinations annually about the performance of each
EIS program using the categories identified in proposed Sec. 303.703.
Also, proposed Sec. 303.700(a) would require the State to report
annually on the performance of the State under the State's performance
plan as provided in proposed Sec. 303.702.
Proposed Sec. 303.700(b) would reflect the new statutory
requirement in section 616(a)(2) of the Act that the primary focus of
monitoring is on improving early intervention results and functional
[[Page 26484]]
outcomes for infants and toddlers with disabilities.
Proposed Sec. 303.700(c) would reflect new requirements in section
616(a)(3) of the Act that States measure performance in monitoring
priority areas using quantifiable indicators and such qualitative
indicators as are needed to adequately measure performance. Proposed
Sec. 303.700(c) would clarify that these indicators are established by
the Secretary in the context of informing States of the requirements
under the State's performance plan.
Proposed Sec. 303.700(d) lists the priority areas States must
monitor under Part C of the Act. These areas are early intervention
services in natural environments and State exercise of general
supervision.
Proposed Sec. 303.700(e) would clarify that the State, in
exercising its monitoring responsibilities under proposed Sec.
303.700(d), must ensure that when it identifies noncompliance with the
requirements of Part C of the Act by EIS programs and EIS providers,
the noncompliance is corrected as soon as possible and in no case later
than one year after the State's identification. The language in this
section would align with the addition of the language in proposed Sec.
303.120(a)(2)(iv).
We propose to add Sec. 303.700(e) because, based on our monitoring
activities, we have determined that correction of noncompliance does
not always occur in a timely manner. Proposed Sec. 303.700(e) would
clarify expectations regarding the timely correction of noncompliance.
It is important to correct noncompliance in a timely manner to ensure
that infants and toddlers with disabilities and their families receive
appropriate early intervention services. Correction of noncompliance
means that the State required the EIS program or EIS provider to revise
any noncompliant policies, procedures and/or practices and the State
has verified through follow-up review of data, other documentation and/
or interviews that the noncompliant policies, procedures and/or
practices have been revised and the noncompliance has been corrected.
We believe that one year is a reasonable amount of time for the LEA to
correct noncompliant policies, procedures and/or practices and for the
State to verify the correction.
Proposed Sec. 303.701 would reflect new statutory language in
section 616(b) of the Act requiring States to have a performance plan
that evaluates their efforts to implement the requirements and purposes
of Part C of the Act and describes how the State will improve
implementation. Under proposed Sec. 303.701(a) the plan must establish
measurable and rigorous targets for the indicators established by the
Secretary under the priority areas described in proposed Sec.
303.700(d). Consistent with the new statutory language, proposed Sec.
303.701(b) would require States to review their performance plans at
least once every six years and submit any amendments to the Secretary.
Proposed Sec. 303.701(c)(1) would require, consistent with section
616(b) of the Act, that each State collect valid and reliable
information on all the indicators in the performance plan to include in
the State's annual report to the Secretary. Proposed Sec.
303.701(c)(2) would clarify that States may use, if the Secretary
permits it for a particular indicator, the option to collect data
through State monitoring or sampling. Proposed Sec. 303.701(c)(2)
would further clarify that, if the State collects data for a particular
indicator through State monitoring or sampling, the State must collect
and report data on those indicators for each EIS program at least once
during the six-year period of the State performance plan. The use of
monitoring or sampling data, if valid and reliable, can be an effective
means of data collection, reducing burden on State lead agencies, while
providing meaningful information on the performance of EIS programs.
Proposed Sec. 303.702(b)(1)(ii) also would align with 34 CFR
300.602(b)(1)(ii) of the Part B regulations (71 FR 46801).
Proposed Sec. 303.701(c)(3) would also incorporate the statutory
requirements from section 616(b)(2)(B)(ii) of the Act regarding data
collection and specify that nothing in the Act or the regulations
authorizes the development of a nationwide database of personally
identifiable information on individuals involved in studies or other
data collections.
Proposed Sec. 303.702(a) would reflect the statutory language in
section 616(b)(2)(C) of the Act requiring States to use the targets
established in their performance plans and the priority areas in
proposed Sec. 303.700(d) to analyze the performance of each EIS
program in the State. Under proposed Sec. 303.702(b), which would
largely incorporate the language in section 616(b)(2)(C) of the Act,
States would be required to report annually to the public on the
performance of each EIS program in the State on the targets in the
State performance plan and make the State performance plan available to
the public. Notes 253 through 258 of the Conf. Rpt. explain that the
expectation is that the State performance plans, indicators and targets
are to be developed with broad stakeholder input and public
dissemination. To ensure that EIS program performance reports are
disseminated in a timely manner, proposed Sec. 303.702(b)(1)(i)(A)
would require that EIS program performance be reported to the public no
later than 60 days following the State's submission of its annual
performance report to the Secretary and would prescribe the minimal
methods for that public dissemination.
Proposed Sec. 303.702(b)(1)(i)(B) would include the statutory
requirements from section 616(b)(2)(C) of the Act that a State make its
performance plan publicly available. In addition, to ensure that the
State's annual performance reports and the reports on the performance
of each EIS program in the State are widely disseminated, proposed
Sec. 303.702(b)(1)(i)(B) would require that States make these reports
available through public means, including posting the reports on the
Web site of the lead agency and distributing them to the media and to
EIS programs.
Proposed Sec. 303.702(b)(1)(ii) would add that, if the State, in
meeting the requirements of proposed Sec. 303.702(b)(1)(i), collects
performance data through State monitoring or sampling, the State must
include the most recently available performance data on each EIS
program and the date the data were obtained in its report on the
performance of EIS programs.
Proposed Sec. 303.702(b)(2) would reflect the language in section
616(b)(2)(C) of the Act requiring each State to report annually to the
Secretary on the performance of the State under its performance plan.
Under proposed Sec. 303.702(b)(3), however, the State would not be
required to report to the public or the Secretary any information on
performance that would disclose personally identifiable information
about individual children or any data if the available data are
insufficient to yield statistically reliable information.
Proposed Sec. 303.703(a) and (b)(1) would reflect new language in
section 616(d) of the Act requiring the Secretary to review annually
the State's annual performance report and, based on information in the
annual performance report, or information obtained through monitoring
visits or other public information, determine if the State: (1) meets
the requirements and purposes of Part C of the Act, (2) needs
assistance in implementing the requirements of Part C of the Act, (3)
needs intervention in implementing the requirements of Part C of the
Act, or (4) needs substantial intervention in implementing the
requirements of Part C of the Act.
Proposed Sec. 303.703(b)(2) would reflect the language from
section
[[Page 26485]]
616(d)(2)(B) of the Act that provides States with notice and an
opportunity for a hearing for determinations under proposed Sec.
303.703(b)(1)(iii) and (b)(1)(iv). Proposed Sec. 303.703(b)(2)(ii)
would clarify that the hearing would consist of an opportunity to meet
with the Assistant Secretary for the Special Education and
Rehabilitative Services to demonstrate why the Department should not
make the determination. We propose this provision to meet the hearing
requirement because the Department has determined that this type of
hearing would provide the appropriate amount of process due a State
prior to one of these determinations. Should specific enforcement
action subsequently be contemplated, as provided for in section 616(e)
of the Act, other hearing procedures may be applicable, as provided for
in proposed Sec. Sec. 303.705, 303.231 through 303.236, and in the
General Education Provisions Act as amended, 20 U.S.C. 1221 et seq.
(GEPA).
Proposed Sec. 303.704, regarding enforcement, would reflect new
requirements in section 616(e) of the Act that set forth the various
actions the Secretary may take with respect to each State's level of
compliance as determined by the Secretary's review of the State's
annual performance report under proposed Sec. 303.703. Thus, proposed
Sec. 303.704 would identify, consistent with section 616(e) of the
Act, the specific enforcement actions that the Secretary may take if
the Secretary determines that a State needs assistance, needs
intervention, or needs substantial intervention.
For example, if it is determined that a State needs substantial
intervention, the Secretary would take one or more of the actions
described in proposed Sec. 303.704(c), including recovering funds
under section 452 of GEPA, withholding in whole or in part any further
payments to the State under Part C of the Act, referring the case to
the Office of Inspector General at the Department, or referring the
matter for appropriate enforcement action, which may include referral
to the Department of Justice.
Under proposed Sec. 303.704(d), the Secretary would be required to
report to appropriate congressional committees within 30 days of taking
an enforcement action against a State under proposed Sec. 303.704,
including in the report a description of the specific action that was
taken, and the reasons why it was taken.
Proposed Sec. 303.705(a) would reflect the language in section
616(e)(4)(A) of the Act regarding reasonable notice and the opportunity
for a hearing prior to withholding of any Part C funds.
Proposed Sec. 303.705(b) would reflect new language from section
616(e)(4)(B) of the Act that, pending the outcome of any hearing to
withhold payments, the Secretary may do one or both of the following:
Suspend payments to a recipient or suspend the recipient's authority to
obligate funds under Part C of the Act provided that the recipient has
been given reasonable notice and an opportunity to show cause why
future payments or the authority to obligate Part C funds should not be
suspended. Proposed Sec. 303.705(c) regarding the nature of
withholding actions would reflect the language in section 616(e)(6) of
the Act.
Proposed Sec. 303.706 reflects the language in section 616(e)(7)
of the Act. Whenever a State receives notice that the Secretary is
proposing to take or is taking an enforcement action pursuant to
proposed Sec. 303.704, the State must, by means of a public notice,
take such measures as may be necessary to bring the pendency of an
action pursuant to section 616(e) of the Act and proposed Sec. 303.704
to the attention of the public within the State, including posting such
notice on the Web site of the lead agency and distributing the notice
to the media and to the EIS programs.
Consistent with the statutory provisions in section 616(g) of the
Act, proposed Sec. 303.707 would provide that nothing in subpart H
restricts the Secretary from utilizing any authority under GEPA and
EDGAR to monitor and enforce the requirements under Part C of the Act.
Proposed Sec. 303.708 would be added to clarify that States have the
flexibility to use other mechanisms to bring about compliance, just as
section 616(g) of the Act and proposed Sec. 303.707 recognize that the
Department needs the flexibility to use the authority in GEPA and EDGAR
to monitor and enforce the Act in addition to the enforcement program
described in section 616(e) of the Act.
Reports--Program Information
Proposed Sec. Sec. 303.720 through 303.724 regarding data
collection by States would incorporate the applicable statutory
requirements under section 618 of the Act, which apply to Part C
through section 642 of the Act. These statutory requirements were
substantively unchanged by the 2004 amendments to the Act except for
the requirement that data reported under Part C of the Act be
disaggregated by gender and the requirement that States electing under
proposed Sec. 303.211 to make early intervention services available to
children ages three and older, report data on those children.
Proposed Sec. 303.720(a) would reflect the statutory provisions in
section 618(a) of the Act that require each State to report data each
year to the Secretary and to the public. Proposed Sec. 303.720(b)
would state that the data be submitted in the manner prescribed by the
Secretary.
Proposed Sec. 303.721(a) would specify that lead agencies must
count the number of infants and toddlers with disabilities receiving
early intervention services on any date between October 1 and December
1 of each year and include in this count any children reported to them
by tribes, tribal organization, and consortia under proposed Sec.
303.731(e)(1)). Current practices require the infant and toddler count
to occur on December 1. The proposed provision would broaden the window
for States and would be consistent with the Part B regulations in 34
CFR 300.641(a) (71 FR 46804). Proposed Sec. 303.721(a)(1), (2), and
(3) would reflect data collection and reporting requirements described
in section 618(a) of the Act.
Proposed Sec. 303.721(b) would reflect the statutory provisions in
section 635(c)(3) of the Act. These provisions require that if a State
adopts the option under section 635(c) of the Act and proposed Sec.
303.211 to make early intervention services available to children ages
three through five, the State must report data on the number and
percentage of children with disabilities who are eligible to receive
services under section 619 of the Act but whose parents choose to
continue to receive early intervention services.
Proposed Sec. 303.721(c) would reflect the statutory provisions in
section 618(a)(1)(F) and (H) of the Act. This provision would require
the State to report the number of due process complaints filed under
section 615 of the Act, the number of hearings conducted and the number
of mediations held and the number of settlement agreements reached
through such mediations.
Proposed Sec. 303.722(a) would reflect the new provisions in
section 618(b)(1) of the Act requiring each State to report data in a
manner that does not result in disclosure of personally identifiable
information.
Proposed Sec. 303.722(b) regarding sampling, reflects the language
in section 618(b)(2) of the Act.
Proposed Sec. 303.723 regarding certification of the annual report
of infants and toddlers served, would require that an authorized
official of the lead agency certify the accuracy of the data being
submitted. This requirement is to ensure that data submitted to the
[[Page 26486]]
Secretary are an accurate representation of the infants and toddlers
with disabilities in the State.
Proposed Sec. 303.724, regarding other responsibilities of the
lead agency related to the annual report of infants and toddlers
served, would provide more detail to the provision in current Sec.
303.540(a)(1)(i) that requires the lead agency to include a process for
collecting data from various agencies and service providers. To ensure
the collection of accurate data in a timely manner, proposed Sec.
303.724 would provide specific steps and procedures for lead agencies
to follow in collecting the data to be reported to the Secretary.
Allocation of Funds
Proposed Sec. Sec. 303.730 through 303.734 would incorporate the
provisions in section 643 of the Act regarding allocation of funds
under Part C of the Act to States, outlying areas and the Secretary of
the Interior. Proposed Sec. 303.730 regarding reservation of funds for
the outlying areas would remain substantively unchanged from current
Sec. 303.204 except for minor changes to the language in order to
conform to section 643(a) of the Act.
Proposed Sec. 303.731 would implement section 643(b)(1) of the Act
regarding allocation of funds under Part C of the Act to the Secretary
of the Interior. Proposed Sec. 303.731(a) would retain the provisions
regarding payment and distribution of funds to tribes and tribal
organizations in current Sec. Sec. 303.180(a), 303.180(b) and 303.203.
Proposed Sec. 303.731(b) would be added to incorporate the
provision in section 643(b)(2) of the Act requiring the Secretary of
the Interior to distribute amounts to each tribe, tribal organization,
or consortium based on the number of infants and toddlers residing on
the reservation divided by the total of those children served by all
tribes, tribal organizations, or consortia.
Proposed Sec. 303.731(c) would be added to incorporate the
provision in section 643(b)(3) of the Act, which clarifies that, in
order to receive payment under this section, the tribe, tribal
organization, or consortium must submit to the Secretary of the
Interior information to determine the amounts to be distributed.
Proposed Sec. 303.731(d) would be added to incorporate section
643(b)(4) of the Act and would state the required and permissible uses
of funds under this section.
Proposed Sec. 303.731(e)(1) and (2) would be added to incorporate
the provision in section 643(b)(5) of the Act regarding the requirement
to submit a biennial report to the Secretary of the Interior in order
to be eligible to receive funds. Proposed Sec. 303.731(e)(1) would
require that to be eligible to receive a payment under proposed Sec.
303.731(b), a tribe, tribal organization, or consortium must make a
biennial report to the Secretary of the Interior of activities
undertaken under proposed Sec. 303.731, including the number of
contracts and cooperative agreements entered into, the number of
infants and toddlers contacted and receiving services for each year,
and the estimated number of infants and toddlers needing services
during the two years following the year in which the report is made.
This report would require tribes, tribal organization and consortia to
include an assurance that the tribe, tribal organization, or consortium
has provided the lead agency in the State child find information
(including the names and dates of birth and parent contact information)
for infants or toddlers with disabilities who are included in the
report in order to meet the child find coordination and child count
requirements in sections 618 and 643 of the Act.
Proposed Sec. 303.731(e)(2) would require the Secretary of the
Interior to provide the Secretary with a summary of that information on
a biennial basis, including confirmation that each tribe, tribal
organization, or consortium has provided to it the assurance required
under proposed Sec. 303.731(e)(1), along with such other information
required of the Secretary of the Interior under Part B or C of the Act.
In addition proposed Sec. 303.731(e)(2) would clarify, consistent with
section 643(b)(5) of the Act, that the Secretary may require any
additional information from the Secretary of the Interior.
Proposed Sec. 303.731(e)(3), regarding reports to the Secretary on
payments disbursed under this section, would retain the language in
current Sec. 303.180(c).
Proposed Sec. 303.731(f) would mirror section 643(b)(6) of the
Act, and would clarify that Part C funds may not be used by the
Secretary of the Interior for administrative purposes or the provision
of technical assistance.
Proposed Sec. 303.732, regarding the allotment and distribution of
funds to the States under this part, generally would retain the
language in current Sec. Sec. 303.200 and 303.202 but would also
incorporate additional provisions from section 643(c) of the Act, and
track the organization of the Act. Proposed Sec. 303.732(a) would be
the same as current Sec. 303.200(a). Proposed Sec. 303.732(b) also
would retain the minimum allocation provision in current Sec. 303.202,
but would revise current language to clarify that no State may receive
less than 0.5 percent of the aggregate amount available under this
section or $500,000, whichever is greater.
Proposed Sec. 303.732(c) would incorporate provisions in section
643(c)(3)(A) and (B) of the Act regarding the ratable reduction of
allotments to States. Proposed Sec. 303.732(d) would retain the
definitions of aggregate amount, infants and toddlers, and State in
current Sec. 303.200(b).
Proposed Sec. 303.733, regarding reallotment of funds if a State
elects not to receive its allotment reflects the provisions in section
643(d) of the Act and would retain the provisions in current Sec.
303.201.
Proposed Sec. 303.734 would reflect new statutory provisions from
section 643(e) of the Act regarding the allocation of Part C funds for
incentive grants for States electing to implement the provisions of
section 635(c) of the Act and proposed Sec. 303.211 to make Part C
services available to children ages three through five. This clarifies
that when the appropriations under Part C of the Act exceed
$460,000,000, fifteen percent of the amount that exceeds $460,000,000
must be available for allocation under section 643(e) of the Act and
proposed Sec. 303.734 for States that elect to serve children under
section 635(c) of the Act and proposed Sec. 303.211.
Executive Order 12866
1. Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action. The potential costs associated
with the proposed regulations are those resulting from statutory
requirements and those we have determined as necessary for
administering this program effectively and efficiently. In assessing
the potential costs and benefits--both quantitative and qualitative--of
this regulatory action, we have determined that the benefits would
justify the costs.
We have also determined that this regulatory action would not
unduly interfere with State, local, private, and tribal governments in
the exercise of their governmental functions.
Following is an analysis of the costs and benefits of the most
significant changes in the regulations implementing Part C of the Act
governing the Early Intervention Program for Infants and Toddlers with
Disabilities. In conducting this analysis, the Department examined the
extent to which changes made by these proposed regulations add to, or
reduce the costs
[[Page 26487]]
for, State lead agencies and others as compared to the costs of
implementing the Part C program under the current regulations.
Variation in practice from State to State makes it difficult to predict
the effect of these changes. However, based on the following analysis,
the Secretary has concluded that the changes reflected in the proposed
regulations will not impose significant net costs on the States.
Section 303.211--State Option To Make Part C Services Available to
Children Ages Three and Older
Proposed Sec. 303.211, which would incorporate the provisions of
section 635(c) of the Act, would allow States to continue to serve
children with disabilities ages 3 through 5 under Part C of the Act if
those children previously received services under Part C of the Act and
would otherwise be eligible for services under section 619 of the Act.
Making these services available under Part C of the Act would be a
State option, and if the State chooses not to serve children with
disabilities ages 3 through 5 under Part C of the Act or to discontinue
offering this option, it would still be required to make services to
these children available through existing Part B programs.
If a State elects to exercise the option to serve 3 through 5 year
olds under Part C of the Act, the lead agency would be responsible for
the costs of providing the direct Part C services to children whose
families elect to continue services under Part C. In addition, we
believe that the State's Part C lead agency could incur some transition
costs in implementing this option. For example, if the Part C lead
agency is not the SEA, it would need to develop the capacity to serve
older children. The intensity and type of services and settings needed
for 3 through 5 year olds may be different from children ages birth
through 2 and would need to include an educational component. The Part
C lead agency may also have to establish relationships with different
providers or, at the very least, amend agreements or contracts with
existing providers.
Educational agencies responsible for providing services under Part
B of the Act would serve fewer children ages 3 through 5 if the State
elects to provide services under Part C to children ages 3 through 5,
and families elect to continue services under Part C of the Act. A
reduction in the number of children to be served under Part B of the
Act would result in both administrative and direct service cost savings
for the educational agencies responsible for serving these children.
However, the State would still be required to maintain its Section 619
preschool system to serve children with disabilities who are 3 through
5 years old. The Part C extension only applies to children who are
already receiving services under Part C of the Act and wish to
continue, not to children newly entering the system. In addition,
parents can choose between Part C or B services.
We have very little information on the number of States that may
choose to exercise the voluntary Part C option and the additional costs
of implementing this option for States that elect to do so. We are
requesting comments from the public on these costs and will address
this issue in the final regulations. Specifically, we are interested in
information related to the following: Initial costs related to
establishing or enhancing the infrastructure in the Part C lead
agencies necessary to serve children ages 3 through 5; differences in
the costs of providing the services required by IDEA to children with
disabilities ages 3 through 5 under Part C of the Act versus Part B of
the Act; the benefits to parents and children of receiving continued
services under Part C of the Act rather than under Part B of the Act;
the extent to which States expect families to choose continuation of
Part C services beyond age 2; the extent to which States may choose to
exercise the option of serving children with disabilities ages 3
through 5 under Part C of the Act; and possible sources of funding for
providing Part C services to these children.
Sections 303.300 Through 303.303--Public Awareness, Comprehensive Child
Find System, Referrals, and Screening
Proposed Sec. Sec. 303.300 through 303.303 would combine the child
find and public awareness requirements from section 635(a)(5) and
(a)(6) of the Act and incorporate the Act's increased emphasis on
specific subpopulations of infants and toddlers with disabilities who
may potentially be eligible for and need early intervention services
under Part C of the Act. Proposed Sec. 303.301 would require States,
consistent with the Act, to identify, locate, and evaluate all eligible
infants and toddlers with disabilities, including children who are
covered by CAPTA, homeless, in foster care, or wards of the State. The
proposed regulations would require the State to have referral
procedures to be used by specified primary referral sources and would
require such procedures to provide for the referral of certain children
covered by CAPTA. This change is consistent with the CAPTA provision
that became effective in June 2003, which requires that States
receiving CAPTA funds adopt policies providing for the referral to the
Part C program of children under the age of 3 who are involved in a
substantiated case of child abuse or neglect.
The proposed regulations would also add a requirement for a public
awareness program about the availability of early intervention services
and specifically require the dissemination of such information to
parents with premature infants or infants with other physical risk
factors associated with learning or developmental complications.
Since States have been required under the Act to conduct child find
activities to identify all infants and toddlers with disabilities since
the program began in 1989, and the CAPTA requirements have been in
place since June 2003, we are not estimating any increase in costs as a
result of these changes. Part C lead agencies should already have the
infrastructure needed to meet all of the IDEA child find requirements,
including those added relating to children covered by CAPTA and those
who are homeless, in foster care, or wards of the State.
In addition, proposed Sec. 303.303 would allow the lead agency to
use screening to determine whether a child is suspected of having a
disability. The use of screening as a vehicle to identify children
potentially eligible for Part C services may reduce the number of
evaluations and assessments that would otherwise need to be conducted
and, thus, reduce potential evaluation and assessment costs for the
State. Proposed Sec. 303.303 also would allow State lead agencies to
determine how primary referral sources would work with the lead
agencies to administer screenings.
Sections 303.320(e)(1) and 303.342(a)--Timelines
Current Sec. Sec. 303.321(e)(2), 303.322(e)(1), and 303.342(a)
require that a child's evaluation, assessment, and initial IFSP meeting
occur within 45 days from the date the public agency receives the
referral. Proposed Sec. 303.320(e)(1) would retain the 45-day timeline
requirement, but the timeline would not begin until the public agency
has obtained parental consent for the evaluation, thereby increasing
the amount of time available to the agency for completing these
actions.
Allowing the agency additional time to complete a child's
evaluation, assessment, and initial IFSP meeting could reduce costs
associated with trying to meet the 45-day deadline, such as paying
overtime to staff, while improving the ability of States to manage the
workflow of their service coordinators. In addition, lack of compliance
with the 45-day timeline in
[[Page 26488]]
current Sec. Sec. 303.321(e)(2), 303.322(e)(1), and 303.342(a)
resulted in nine States having either special conditions or compliance
agreements attached to their Part C grants during fiscal year 2006. To
the extent that any of the findings of noncompliance with the 45-day
timeline requirement involved cases where the parents did not provide
consent or provide consent in a timely manner, the change would assist
States to avoid future findings of noncompliance with the IDEA. This
change could also reduce the number of complaints related to missed
deadlines; however, any savings associated with the resolution of due
process complaints are likely to be negligible since there are few
requests for due process hearings filed under Part C--only 22 in fiscal
year 2003 and 186 in fiscal year 2004'and a missed deadline is not
likely to be the sole or primary basis for a complaint.
Since the 45-day deadline would no longer encompass the period
between the referral and obtaining parental consent for the initial
evaluation, the agencies could take more time in contacting parents for
their consent to evaluate the child, particularly in cases where the
parents are not aware of the initial referral, and, thereby, delay the
evaluation process. While undue delays could be harmful to the child,
we have no basis for assuming that agencies will take more time than is
needed to contact the parents for consent, based on our experience
under the Part B regulations. In most cases, parents will be aware of
the referral and will readily provide their consent if they want the
child to be evaluated.
Section 303.344(e)--Content of the IFSP
The current regulations in Sec. 303.344(e) require service
coordinators to identify on the IFSP those medical and other services
that the child needs, but are not required by Part C of the Act, and
the funding sources to be used in paying for those services, or the
steps that will be taken to secure those services through public or
private sources. Proposed Sec. 303.344(e)(2) would retain the
requirements for service coordinators to identify on the IFSP medical
and other services that the child needs, but are not required by Part C
of the Act, and the steps that will be taken to secure those services
through public or private sources. However, service coordinators would
no longer be required to identify and coordinate funding sources for
these services.
Eliminating the requirement that IFSPs identify the funding sources
for services not required by Part C of the Act will reduce the burden
on service coordinators and will save IFSP teams, including the service
coordinator, time during meetings and time preparing the IFSP. The
requirement to identify funding for other services is overly
burdensome, given that there may be many other services that infants
and toddlers with disabilities and their families receive (e.g., foster
care, services through individualized safe plans of care, and medical
and other services), and service coordinators have limited knowledge
about, and ability to coordinate funding for, these services.
While we do not have any data on the number of hours service
coordinators spend on this activity, we do know that many children
served under Part C of the Act have significant health care needs and
that it could take several hours or more to identify and coordinate
funding for medical services needed by these children. For purposes of
this analysis, we assume that service coordinators spend, on average, a
minimum of two hours per year per child identifying and coordinating
funding for services not required by IDEA and describing it in the
IFSP. Based on an analysis of salaries for early intervention service
coordinators employed by public and private agencies and organizations
for 7 States \1\ and Bureau of Labor Statistics data for fringe
benefits costs for health care and social assistance personnel,\2\ we
estimate average compensation for service coordinators to be
approximately $22 per hour. Pursuant to section 637(b)(4) of the Act,
each State submits an annual count to the Department of the number of
children with disabilities ages birth through 2 served in the State. An
analysis of trends in the annual count and in census data for this age
range indicates that the States will serve approximately 313,100
children under Part C of the Act in fiscal year 2007. Based on these
estimates, we expect savings of approximately $14 million from this
change.
---------------------------------------------------------------------------
\1\ Estimate based on an analysis of average salaries for early
intervention service coordinators using information from State job
postings and an analysis of average early intervention specialist
salaries conducted by the PayScale Corporation that looked at median
salaries for early interventionists employed by non-profit
organizations, school districts, private companies, State and local
governments, and colleges and universities.
\2\ Table 4, State and local government, by occupational and
industry group, last modified March 29, 2007, http://www.bls.gov/news.release/ecec.t04.htm.
---------------------------------------------------------------------------
Section 303.520(a)--Policies Related to Use of Public Insurance and
Benefits for Payment for Services
This proposed section would clarify when a State may access funds
from a parent's public insurance or public benefits program. Under
proposed Sec. 303.520(a), States would be able to access public
insurance or benefits to pay for Part C services--(1) If the parent or
child is already enrolled in a public insurance or benefits program and
the parent provides consent as defined under proposed Sec. 303.7 and
provided for under proposed Sec. 303.414; (2) if the child is in
foster care and automatically eligible under the State's Medicaid plan;
or (3) if the parent agrees to enroll in a public insurance or benefits
program and consents to allow the State to use the public insurance or
benefit. Proposed Sec. 303.414 would require consent prior to
disclosure of personally identifiable information, which consent
requirement is reflected in current Sec. Sec. 303.402 and 303.460.
The National Early Intervention Longitudinal Study (NEILS)
indicates that approximately 44 percent of the families participating
in the Part C program participate in a government-assisted health
insurance or public benefits program such as Medicaid or the State
Children's Health Insurance Program (SCHIP) (http://www.sri.com/neils).
In addition, the FY 2002 Part C IDEA Annual Performance Reports (APRs)
required to be submitted by States to the Department on March 31, 2004
indicated that Federal Medicaid funds represent an average of 23.7
percent of the State's overall Part C early intervention program budget
for the 27 States for which Medicaid dollars were reported on a
disaggregated basis. Given this information, we believe that it is
important for the regulations to be clear about when and how States may
access a parent's public insurance or benefits.
The current regulations do not specify the circumstances under
which a State may access a parent's public insurance or benefits to
obtain reimbursement for Part C services. Some States automatically
access reimbursements from public insurance or benefit programs if the
parents are enrolled in these programs. Proposed Sec. 303.520(a)(1)(i)
would clarify that States may use a parent's public insurance or
benefits, if the parent is already enrolled, but only when the parent
provides consent. The Department believes that most parents will
provide the requisite consent if requested. There may be some costs to
obtaining consent; however, they are likely to be minimal because the
[[Page 26489]]
requests are likely to be made during the already existing intake
process, at which time the parents could be asked to sign any consent
forms needed by the State. There would also be some loss of revenue to
States if parents enrolled in public insurance or benefit programs
refuse to provide consent. In this regard, the Department believes that
any increased cost to States that may result from this requirement is
outweighed by the benefits of protecting the privacy and autonomy of
the family and minimizing the potential negative impact on a family's
credit rating, immigration status, insurability, and status under other
programs.
Proposed Sec. 303.520(a)(1)(ii) would provide that a State may use
the public benefits available to a child served under Part C if the
child is in foster care and eligible to participate in the public
insurance or benefits program. Children in foster care may be
automatically eligible for Medicaid under the State's Medicaid plan and
section 472 of the Social Security Act. This proposed provision, which
would clarify that States would not need to obtain parental consent
prior to accessing the public insurance or benefits available to these
children, would facilitate State access to public insurance or benefits
for these children and would eliminate some costs associated with
obtaining consent for the release of personally identifiable
information.
Proposed Sec. 303.520(a)(1)(iii) covers circumstances where the
parent is not currently enrolled in a public insurance or benefits
program. The proposed provision would provide that the State would be
required to obtain parent consent to enroll, and, therefore, would not
be able to require a parent to enroll in a public insurance or benefits
program as a requirement of receiving services. We expect this
clarification to have a very limited effect because very few States
require eligible families to apply for public insurance or benefits in
order to receive Part C services. Data from a survey of the States
conducted by the IDEA Infants and Toddlers Coordinators Association
(ITCA) indicate that only two of the 21 States that responded reported
that they require families to apply for existing third party resources
such as Medicaid, SCHIP, and the Children's Special Health Care Needs
program. (http://www.ideainfanttoddler.org). A review of applications
submitted by States indicates that fewer than 5 States currently have
systems of payments on file with the Department that have express
policies requiring parents to enroll in public insurance or benefits as
a condition of receiving services under Part C of the Act and/or permit
the Part C lead agency to expressly access a parent's public insurance
or benefits without parental consent.
Moreover, we believe that most parents will agree to enroll
voluntarily since it is generally to the family's advantage to obtain
health insurance for all family members.
To the extent that there may be an increased cost to States that
currently require parents to enroll in public insurance or benefits
programs due to a potential loss of revenue, this potential cost is
outweighed by the benefits of protecting the privacy and autonomy of
the family (including minimizing any potential negative impact that use
of public insurance or benefits may have on the family). Enrollment in
public insurance or benefits programs may negatively affect a parent's
immigration status and ability to borrow, or have other legal and
financial repercussions. A parent's decision to enroll in public
insurance or benefit programs also may be affected by religious
concerns, the perceived stigma of public insurance or benefits, and
considerations related to family finances.
Since we do not have data on the number or percentage of eligible
families participating in the Part C program that refuse to enroll in
public insurance or benefits programs or the participation rates in
States that require eligible families to enroll in public insurance or
benefits programs, we invite commenters to provide this information. We
request that commenters identify any relevant research or evidence, if
available.
Section 303.520(b)--Policies Related to Use of Private Insurance for
Payment for Services
Under proposed Sec. 303.520(b), the State would not be able to
access a parent's private insurance to pay for Part C services unless
the parent provides informed consent to do so. Proposed Sec.
303.520(b)(2) would provide that the parental consent requirement does
not apply if the State has enacted a statute regarding private health
insurance coverage for early intervention services under Part C of the
Act that provides specific protections. These protections must include
ensuring that the use of health insurance to pay for Part C services
cannot: (1) Count towards the lifetime coverage caps for the child or
family, (2) negatively impact the availability of health insurance for
the child and family, (3) result in the discontinuation of health
insurance coverage, or (4) be the basis for increasing the child's or
family's premiums. We are aware of a few States that have enacted such
statutes. These few States are the only States that use private
insurance such that it accounts for ten percent or more of their
State's Part C budgets. By adopting specific State statutes that
provide parental protections to the parent, these States would be
exempt from the proposed parent consent requirements.
Under current regulations, Part C services must be provided free of
charge unless the State has established a system of payments. In
addition, under current Sec. Sec. 303.402 and 303.460, the lead agency
must obtain consent prior to disclosing personally identifiable
information. Because the proposed regulations would not represent a
significant change from current requirements relating to consent, the
proposed changes should not result in increased costs for a State. In
addition, we expect the proposed provision in Sec. 303.520(b)(2) to
have a limited effect because private insurance funds represent a very
limited proportion of States' Part C budgets. Twenty-six States
reported in either their fiscal year 2001 or 2002 Part C APRs that they
receive funding from private insurance or family fees. For 21 of the 26
jurisdictions reporting income from private insurance or family fees,
which could be paid, with parental consent, by private insurance, the
average percentage of the State's overall Part C budget that
represented funds from private insurance or family fees was 4.9
percent.
Any loss of revenue to States from not being able to access private
insurance without the consent of the parents would be offset by the
major consequences that use of private insurance might have for
families, including jeopardizing eligibility for private insurance
policies and lifetime caps on benefits or causing increases in premiums
or discontinuation of insurance. In addition, the proposed regulations
provide flexibility to both States and parents. States have the
flexibility either to establish a system of payments under proposed
Sec. 303.521 to recoup the costs of providing early intervention
services or to obtain parental consent for use of private insurance.
Parents have the option to allow the State to use their private
insurance or to pay the fees established by the State according to a
system of payments established under Sec. 303.521.
[[Page 26490]]
Section 303.521(c)--States With FAPE Mandates or That Use Part B Funds
To Provide Services to Infants and Toddlers With Disabilities
This proposed provision would incorporate longstanding policy and
requirements under Part B of the Act that, if a State is required under
State law to provide FAPE for, or uses Part B funds under section 611
of the Act to pay for, services for infants and toddlers with
disabilities or a subset of children with disabilities under the age of
three, the State must ensure that those services that constitute FAPE
are provided at no cost. For example, if a State has established a
system of payments, but has a law extending FAPE down to birth for a
particular disability group such as individuals who are blind, the
State cannot charge for any services that are part of FAPE for that
child or family. Because the proposed change clarifies existing
requirements and practice, this change is not expected to result in any
change in costs for State agencies or families.
2. Clarity of the Regulations
Executive Order 12866 and the Presidential Memorandum on ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
Does the format of the proposed regulations (use of
headings, paragraphing, etc.) aid or reduce their clarity?
Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a number heading; for example,
Sec. 303.209 Transition.)
Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the proposed regulations easier to understand? If so, how?
What else could we do to make the proposed regulations
easier to understand?
Send any comments that concern how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section of the preamble.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities. These proposed regulations would govern only States in their
implementation of the Part C early intervention program and States are
not considered small entities under the Regulatory Flexibility Act of
1980, as amended. In addition, because Part C does not authorize
subgrants no small entities would be directly affected by these
proposed regulations. The small entities that would be indirectly
affected are local entities that enter into contracts with the State to
provide Part C early intervention services. However, the proposed
regulations would not have a significant economic impact on these small
entities because the proposed regulations would not impose excessive
regulatory burdens or require unnecessary Federal supervision. The
proposed regulations would impose minimal requirements, concerning the
potential referral of additional children to the Part C program as well
as the issue of use of insurance and systems of payments to ensure the
proper expenditure of program funds.
Paperwork Reduction Act of 1995
These proposed regulations contain information collection
provisions that are subject to review by OMB under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3520). A description of these
five information collections is given below with an estimate of the
annual recordkeeping burden. Included in the estimate is the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing each
collection of information.
The proposed regulations include five information collection
requirements associated with the following provisions: Proposed
Sec. Sec. 303.21(c)(2), 303.100 through 303.126, 303.200 through
303.227, 303.300, 303.320(e)(2), 303.342(e), 303.431 through 303.449,
303.520(a)(3) and 303.520(b)(1)(iii), 303.701 and 303.702 and 303.720
through 303.724. Under the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the Department has submitted a copy of these sections to OMB
for its review. The Department recognizes that information collection
requests requiring aggregate data on race and ethnicity do not reflect
the 1997 OMB Standards for Data on Race and Ethnicity. The Department
anticipates providing guidance to implement those standards in
forthcoming collections.
Interested persons are requested to send comments regarding the
information collections to the Department of Education within 60 days
after publication of these proposed regulations. This comment period
does not affect the deadline for public comments associated with these
proposed regulations.
Collection of Information: IDEA Part C State Performance Plan (SPP)
and Annual Performance Report (APR), (Information Collection 1820-0578)
for proposed Sec. Sec. 303.124 and 303.701 and 303.702.
Each statewide system must include a system for compiling and
timely reporting accurate data. Each State must have in place, a
performance plan that evaluates the State's efforts to implement the
requirements and purposes of Part C of the Act and describes how the
State will improve implementation. Each State also must report annually
to the public on the performance of each EIS provider in the State on
the targets in the State's performance plan, and the State must report
annually to the Secretary on the performance of the State under the
State's performance plan.
Under 44 CFR 1320.11, we requested that OMB review information
collection 1820-0578. The 60-day Federal Register notice was published
on August 10, 2006, the 30-day Federal Register notice was published on
October 18, 2006, and the information collection was approved by OMB on
December 12, 2006, with the understanding that the Department would
submit this collection for OMB review in conjunction with this NPRM.
Annual reporting and recordkeeping burden for this collection of
information is estimated to be 150 hours annually for each of 56
respondents. The total annual burden to States for this information
collection is estimated to be 8,400 hours. Of the total 150 hours, it
is estimated that 80 hours will be spent planning the report, 40 hours
will be spent writing the report, and 30 hours will be spent typing and
compiling the report. The Council reviews, provides comments on, and
certifies the lead agency's report, and either agrees or disagrees with
the report. The estimated annual burden for the Council is 2 hours to
review, certify, and add comments to each report, as needed.
Collection of information: Annual State Application under Part C of
the Individuals with Disabilities Education Act, as amended.
(Information Collection 1820-0550) Sec. Sec. 303.100 through 303.126
and Sec. Sec. 303.200 through 303.227. Under proposed Sec. 303.101
[[Page 26491]]
States would be required to submit a statement that they have submitted
the new and/or revised State policies, procedures, methods, and
descriptions that meet all requirements found under Part C of the Act.
Information Collection 1820-0550 has been revised to reflect these
proposed regulations.
Under 44 CFR 1320.11, we requested that OMB review Information
Collection 1820-0550. The 60-day Federal Register notice was published
on August 10, 2006, the 30-day Federal Register notice was published on
October 18, 2006, and the information collection was approved by OMB on
December 12, 2006, with the understanding that the Department would
submit this collection for OMB review in conjunction with this NPRM.
There are 56 respondents who are required to submit the Part C
Annual State Application if they seek to receive Federal Part C funds.
The annual data burden for this collection is estimated to average 10
hours per respondent for 56 respondents. Thus, the annual total burden
estimate for this information collection is 560 hours.
Collection of Information: Report of Infants and Toddlers Receiving
Early Intervention Services in Accordance with Part C; Report of
Program Settings Where Early Intervention Services are Provided to
Infants and Toddlers with Disabilities and Their Families in Accordance
with Part C of the Act: Report on Infants and Toddlers Exiting Part C
(Information Collection 1820-0557) was approved by OMB on November 21,
2006 for proposed Sec. Sec. 303.124 and 303.720 through 303.724. Each
lead agency that receives assistance under Part C of the Act must
provide data each year to the Secretary and the public on infants and
toddlers with disabilities. There are 56 respondents who are required
to provide Part C data on infants and toddlers with disabilities. There
are three Tables found in this collection. The estimated burden for
this collection is 101 hours per State agency or 5,656 hours total.
Collection of Information: (Information Collection 1820-0678)
Report of Dispute Resolution Under Part C of the Individuals with
Disabilities Education Act Complaints, Mediations, and Due Process
Hearings was approved by OMB on November 22, 2006 for proposed
Sec. Sec. 303.431 through 303.449. Under the Act the Secretary obtains
data on the dispute resolution processes described in section 615 of
the Act. Each State must report the number of due process complaints,
number of hearings conducted and the number of mediations held and the
number of settlement agreements reached through such mediations. This
collection will replace Attachment 1 of the Part C Annual Performance
Report (OMB number 1820-0578) beginning with the data collection for
the FFY 2005 (2005-2006) period. The data collection form provides
instructions and information for States for submitting their dispute
resolution data.
There are 56 respondents who are required to submit data regarding
the Part C dispute resolution process. The total burden for all States
was calculated by multiplying the average number of hours by 56. For
lead agencies, the estimated average burden is 60 hours per lead
agency, representing a total burden estimate of 3,360 hours. The
required number of hours needed to produce these data is expected to
decline as systems are expanded to collect all required data elements,
personnel are trained on reporting these data, and edits are
implemented to automate data cleaning.
Collection of Information: (Information Collection 1820-NEW) State
and EIS Recordkeeping, Reporting, and Third Party Disclosure
Requirements under Part C. Proposed Sec. Sec. 303.21(c)(2),
303.211(b)(1), 303.224(b), 303.300, 303.320(e)(2), 303.430,
303.431(b)(2)(i), 303.432 through 303.434, 303.440(b), 303.342(e),
303.443(c)(3), 303.520(a)(3) and (b)(1)(iii), and 303.724(c) and (e).
The Act requires State lead agencies and EIS providers to gather,
maintain, report, and disclose various information and data, but the
Act does not require this information and data to be submitted to the
Department. For the purpose of clarity and efficiency, we have combined
these separate collections of information into one collection that
reflects all the recordkeeping, reporting, and disclosure activities
that must be completed by the State or EIS provider, which do not
require reporting to the Department.
Each State lead agency must develop a public awareness program.
State lead agencies are also required to keep records to verify the
proper disbursement of funds. States must develop procedures to
document circumstances when it is impossible to complete the evaluation
and assessment of an infant or toddler with a disability within the 45-
day timeline.
State lead agencies must also maintain documentation to verify the
accuracy of their child count data. The proposed regulations also
require the State lead agency to obtain certification from each EIS
provider regarding the accuracy of the EIS provider's child count.
Each State lead agency must have on file a list of mediators and
the State complaint procedures. If the State lead agency adopts Part B
due process hearing procedures, then the public agencies must have on
file a list of hearing officers and low-cost legal services
information.
Annual reporting and recordkeeping burden for this collection of
information is estimated to be approximately 112 hours for 56
respondents (State lead agencies) for a total of 6,272 hours.
With respect to EIS providers, the proposed regulations require
that EIS providers make the following disclosures to parents:
1. Written notification of their rights and responsibilities in
determining whether their child will continue to receive services under
Part C of the Act or participate in preschool programs under section
619 of the Act.
2. If a State decides to make EI services available to children
ages three and older, annual notice that contains a description of the
rights of parents to elect to receive services under Sec. 303.211 or
services under Part B of the Act and an explanation of the differences
between these services.
3. A copy of the system of payments policies that identify
potential costs that parents may incur while enrolled in a public
insurance program or private insurance program.
The proposed regulations also require that EIS providers obtain
informed consent from parents prior to the provision of EI services.
Annual reporting and recordkeeping burden for this collection of
information is estimated to be approximately 17,392 hours. This burden
was calculated by multiplying the number of children (298,150) served
by the estimated amount of time to carry out these activities (3 to 4
minutes).
Consistent with the discussion above, the following chart describes
the sections of the proposed regulations involving information
collections, the information being collected, and the collections the
Department will submit to the Office of Management and Budget for
approval and public comment under the Paperwork Reduction Act.
[[Page 26492]]
----------------------------------------------------------------------------------------------------------------
Regulatory section Collection information Collection
----------------------------------------------------------------------------------------------------------------
Third Party Disclosure
----------------------------------------------------------------------------------------------------------------
Sec. 303.21(c)(2)......................................... Requires that parents Information collection
receive a written 1820-NEW ``State and
notification of their EIS Recordkeeping,
rights and Reporting, and Third
responsibilities in Party Disclosure
determining whether Requirements.''
their child will
continue to receive
services under Part C
or participate in
preschool programs
under section 619 of
the Act.
Sec. 303.211(b)(1)........................................ Requires that if a State Information collection
adopts this policy, 1820-NEW ``State and
parents are provided an EIS Recordkeeping,
annual notice that Reporting, and Third
contains a description Party Disclosure
of the rights of Requirements.''
parents to elect
toreceive services
pursuant to Sec.
303.211 or under Part B
and an explanation of
the differences between
services provided under
Sec. 303.211 and
under Part B.
Sec. 303.300.............................................. Requires the lead agency Information collection
to develop a public 1820-NEW ``State and
awareness program. EIS Recordkeeping,
Reporting, and Third
Party Disclosure
Requirements.''
Sec. 303.520(a)(3) and Sec. 303.520(b)(1)(iii).......... Requires the State to Information collection
provide parents with a 1820-NEW ``State and
copy of the State's EIS Recordkeeping,
system of payments Reporting, and Third
policies that identify Party Disclosure
potential costs that Requirements.''
the parent may incur
while enrolled in a
public insurance
program or private
insurance program.
----------------------------------------------------------------------------------------------------------------
Recordkeeping Requirements
----------------------------------------------------------------------------------------------------------------
Sec. 303.224(b)........................................... Requires the State to Information collection
keep records and afford 1820-NEW ``State and
access as the Secretary EIS Recordkeeping,
may find necessary to Reporting, and Third
ensure compliance, Party Disclosure
correctness and Requirements.''
verification of
reports, and proper
disbursement of funds.
Sec. 303.320(e)(2)........................................ Requires the State to Information collection
develop procedures to 1820-NEW ``State and
document circumstances EIS Recordkeeping,
when it is impossible Reporting, and Third
to complete the Party Disclosure
evaluation and Requirements.''
assessment within the
45-day timeline.
Sec. 303.724(e)........................................... Requires the lead agency Information collection
to maintain 1820-NEW ``State and
documentation to enable EIS Recordkeeping,
the State and the Reporting, and Third
Secretary to audit the Party Disclosure
accuracy of the child Requirements.''
count data.
----------------------------------------------------------------------------------------------------------------
Other Information Collection Requirements
----------------------------------------------------------------------------------------------------------------
Sec. 303.342(e)........................................... Requires that informed Information collection
consent be obtained 1820-NEW ``State and
from the parents prior EIS Recordkeeping,
to the provision of EI Reporting, and Third
services, as described Party Disclosure
in the IFSP. Requirements.''
Sec. 303.724(c)........................................... Requires the lead agency Information collection
to obtain certification 1820-NEW ``State and
from each EIS provider EIS Recordkeeping,
that is unduplicated Reporting, and Third
and accurate regarding Party Disclosure
their count of children Requirements.''
served.
Sec. 303.430.............................................. Requires the State to Information collection
develop written 1820-NEW ``State and
procedures for the EIS Recordkeeping,
timely administrative Reporting, and Third
resolution of Party Disclosure
complaints. Requirements.''
Sec. 303.431(b)(2)(i)..................................... Requires the State to Information collection
maintain a list of 1820-NEW ``State and
qualified mediators. EIS Recordkeeping,
Reporting, and Third
Party Disclosure
Requirements.''
Sec. Sec. 303.432 through 303.434........................ Requires the State to Information collection
develop procedures for 1820-NEW ``State and
resolving complaints, EIS Recordkeeping,
including the minimum Reporting, and Third
State complaint Party Disclosure
procedures and the Requirements.''
procedures for filing a
complaint.
Sec. 303.440(b)........................................... Requires the lead agency Information collection
to inform parents of 1820-NEW ``State and
any free or low-cost EIS Recordkeeping,
legal and other Reporting, and Third
relevant services Party Disclosure
available. Requirements.''
Sec. 303.443(c)(3)........................................ Requires the State to Information collection
maintain a list of 1820-NEW ``State and
hearing officers. EIS Recordkeeping,
Reporting, and Third
Party Disclosure
Requirements.''
Sec. 303.124.............................................. Requires the State to Information collection
develop a statewide 1820-0557 ``Report on
system for compiling Infants and Toddlers
and reporting timely Exiting Part C.''
and accurate data.
Sec. Sec. 303.720 through 303.724........................ Requires the State to Information collection
annually report to the 1820-0557 ``Report on
Secretary and the Infants and Toddlers
public on the Exiting Part C.''
information required by
section 618 of the Act.
Requires the annual
reporting of children
served, protection of
identifiable data and
certification of the
report.
[[Page 26493]]
Sec. Sec. 303.100 through 303.126........................ Eligibility requirements Information collection
for a grant and 1820-0550 ``Annual
requirements for a State Application under
statewide system for Part C of the IDEA.''
implementing Part C.
Sec. 303.200 through 303.227.............................. Requirements for each Information collection
State application and 1820-0550 ``Annual
required assurances. State Application under
Part C of the IDEA.''
Sec. 303.124.............................................. Requirements for a Information collection
statewide system that 1820-0578 ``IDEA Part C
includes a system for State Performance Plan
compiling and reporting (SPP) and Annual
timely and accurate Performance Report
data. (APR).''
Sec. 303.701.............................................. Requirements for data Information collection
collection to report 1820-0578 ``IDEA Part C
annually to the State Performance Plan
Secretary on the (SPP) and Annual
indicators established Performance Report
by the Secretary for (APR).''
the State Performance
Plan.
Sec. 303.702.............................................. Requirements to report Information collection
annually to the public 1820-0578 ``IDEA Part C
on the performance of State Performance Plan
each EIS program in the (SPP) and Annual
State on the targets in Performance Report
the State's performance (APR).''
plan; and the
requirements to make
the State's performance
plan, annual
performance report and
reports on the
performance of each EIS
program available
through public means.
Sec. Sec. 303.431 through 303.449........................ Requires the State to Information collection
annually report to the 1820-0678 ``Report of
Secretary and the Dispute Resolution
public on information under Part C of the
required by section 618 Individuals with
of the Act. Requires Disabilities Education
the annual reporting of Act.''
the number of due
process complaints, the
number of hearings
conducted, and the
number of mediations
held, and the number of
settlement agreements
reached through such
mediations.
----------------------------------------------------------------------------------------------------------------
If you want to comment on the proposed information collection
requirements, please send your comments to the Office of Information
and Regulatory Affairs, OMB, Attention: Desk Officer for U.S.
Department of Education. Send these comments by e-mail to [email protected] or by fax to (202) 395-6974. Commenters need only
submit comments via one submission medium. You may also send a copy of
these comments to the Department contact named in the ADDRESSES section
of this preamble.
We consider your comments on these proposed collections of
information in--
Deciding whether the proposed collections are necessary
for the proper performance of our functions, including whether the
information will have practical use;
Evaluating the accuracy of our estimate of the burden of
the proposed collections, including the validity of our methodology and
assumptions;
Enhancing the quality, usefulness, and clarity of the
information we collect; and
Minimizing the burden on those who must respond. This
includes exploring the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology; e.g., permitting electronic submission of
responses.
OMB is required to make a decision concerning the collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, to ensure that OMB gives your comments full consideration,
it is important that OMB receives the comments within 30 days of
publication. This does not affect the deadline for your comments to us
on the proposed regulations.
Requests for copies of the submission for OMB review may be
accessed from http//edicsweb.ed.gov by selecting the ``Browse Pending
Collections'' link. When you access the information collection, click
on ``Download Attachments'' to view. Written requests for information
should be addressed to U.S. Department of Education, 400 Maryland
Avenue, SW., Potomac Center, 9th Floor, Washington, DC 20202-4700.
Request may also be electronically mailed to the Internet address [email protected] or faxed to (202) 245-6621.
If you want to comment on the information collection requirements,
please send your comments to Alexa Posny, U.S. Department of Education,
400 Maryland Avenue, SW., Potomac Center Plaza, room 4109, Washington,
DC 20202-2641.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR part 79. One of the objectives of
the Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of the Department's
specific plans and actions for this program.
Assessment of Educational Impact
The Secretary particularly requests comments on whether the
proposed regulations would require transmission of information that any
other agency or authority of the United States gathers or makes
available.
Electronic Access to this Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) at the following site: http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO) toll free at 1-800-293-4922; or in the
Washington, DC area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.
(Catalog of Federal Domestic Assistance Number 84.181)
[[Page 26494]]
Redesignation Table Showing Each Current Regulatory Section in 34 CFR
Part 303 and the Corresponding Section in This NPRM \3\
------------------------------------------------------------------------
B. Corresponding section
A. Current regulatory section number in NPRM
------------------------------------------------------------------------
Subpart A--General
------------------------------------------------------------------------
303.1 Purpose of the early intervention 303.1.
program for infants and toddlers with
disabilities.
303.2 Eligible recipients of an award.. 303.2.
303.3 Activities that may be supported 03.501(a)-(e).
under this part.
303.4 Limitation on eligible children.. Removed.
303.5 Applicable regulations........... 303.3.
Definitions:
Note................................... Removed.
303.6 Act.............................. 303.4.
303.7 Children......................... 303.6.
303.8 Council.......................... 303.8.
303.9 Days............................. 303.9.
303.10 Developmental delay............. 303.10.
303.11 Early intervention program...... 303.11.
303.12 Early intervention services..... 303.13.
Note to 303.12......................... 303.13(d).
303.13 Health services................. 303.16.
Note to 303.13......................... Removed.
303.14 IFSP............................ 303.20.
303.15 Include; including.............. 303.18.
303.16 Infants and toddlers with 303.21.
disabilities.
Note 1 to 303.16....................... 303.21(a)(2).
Note 2 to 303.16....................... 303.5.
303.17 Multidisciplinary............... 303.24.
303.18 Natural environments............ 303.26.
303.19 Parent.......................... 303.27.
303.20 Policies........................ Removed.
303.21 Public agency................... 303.30.
303.22 Qualified....................... 303.31.
303.23 Service coordination (case 303.33.
management).
Note 1 to 303.23....................... Removed.
Note 2 to 303.23....................... 303.33(c).
303.24 State........................... 303.34.
303.25 EDGAR definitions that apply.... 303.3.
------------------------------------------------------------------------
Subpart B--Eligibility and Requirements for a Statewide System
------------------------------------------------------------------------
General Requirements:
303.100 Conditions of assistance....... 303.100, 303.101, 303.228.
303.101 How the Secretary disapproves a 303.230.
State's application or statement of
assurances.
Public Participation:
303.110 General requirements and 303.208.
timelines for public participation.
303.111 Notice of public hearings and 303.208(a).
opportunity to comment.
303.112 Public hearings................ 303.208(a).
303.113 Reviewing public comments 303.208.
received.
Statement of Assurances:
303.120 General........................ 303.220.
303.121 Reports and records............ 303.224.
303.122 Control of funds and property.. 303.223.
303.123 Prohibition against commingling 303.225(a).
303.124 Prohibition against supplanting 303.225(b).
303.125 Fiscal control................. 303.226.
303.126 Payor of last resort........... 303.222.
303.127 Assurance regarding expenditure 303.221.
of funds.
303.128 Traditionally underserved 303.227.
groups.
General Requirements for a State
Application:
303.140 General........................ 303.101 and 303.203(a).
303.141 Information about the Council.. 303.125.
303.142 Designation of lead agency..... 303.201.
303.143 Designation regarding financial 303.202.
responsibility.
303.144 Assurance regarding use of 303.221.
funds.
303.145 Description of use of funds.... 303.205.
303.146 Information about public 303.208.
participation.
303.147 Services to all geographic 303.207.
areas.
303.148 Transition to preschool 303.209.
programs.
Note 1 to 303.148...................... 303.209.
Components of a Statewide System--
Application Requirements:
303.160 Minimum components of a 303.110.
statewide system.
303.161 State definition of 303.111.
developmental delay.
[[Page 26495]]
303.162 Central directory.............. 303.117.
303.164 Public awareness program....... 303.116.
303.165 Comprehensive child find system 303.115.
303.166 Evaluation, assessment, and 303.113.
nondiscriminatory procedures.
303.167 Individualized family service 303.114.
plans.
303.168 Comprehensive system of 303.118.
personnel development (CSPD).
303.169 Personnel standards............ 303.119.
303.170 Procedural safeguards.......... 303.123.
303.171 Supervision and monitoring of 303.120.
programs.
303.172 Lead agency procedures for 303.430(c).
resolving complaints.
303.173 Policies and procedures related 303.511.
to financial matters.
303.174 Interagency agreements; 303.120(e) and (f) 303.511.
resolution of individual and disputes.
303.175 Policy for contracting or 303.121.
otherwise arranging for services.
303.176 Data collection................ 303.124.
Participation by the Secretary of the
Interior:
303.180 Payments to the Secretary of 303.731.
the Interior for Indian tribes and
tribal organizations.
------------------------------------------------------------------------
Subpart C--Procedures for Making Grants to States
------------------------------------------------------------------------
303.200 Formula for State allocations.. 303.732.
303.201 Distribution of allotments from 303.733.
non-participating States.
303.202 Minimum grant that a State may 303.732(b).
receive.
303.203 Payments to the Secretary of 303.731.
the Interior.
303.204 Payments to the jurisdictions.. 303.730.
Program and Service Components of a
Statewide System of Early Intervention
Services:
303.300 State eligibility criteria and 303.111, 303.203(c),
procedures. 303.204, 303.205(c), and
303.320(b)(1).
Note to 303.300........................ 303.320(b)(2).
303.301(a), (c) and Note to 303.301.... Removed.
303.301(b), (d) Central Directory...... 303.117.
Identification and Evaluation:
303.320 Public awareness program....... 303.116, 303.300.
303.321 Comprehensive child find system 303.301, 303.302.
303.322 Evaluation and assessment...... 303.320.
303.323 Nondiscriminatory procedures... 303.320(a)(3).
Individualized Family Service Plans
(IFSPs):
303.340 General........................ 303.340.
303.342 Procedures for IFSP 303.342.
development, review, and evaluation.
303.343 Participants in IFSP meetings 303.343.
and periodic reviews.
303.344 Content of IFSP................ 303.344.
303.345 Provision of services before 303.345.
evaluation and assessment are
completed.
303.346 Responsibility and 303.346.
accountability.
Personnel Training and Standards:
303.360 Comprehensive system of 303.118.
personnel development.
303.361 Personnel standards............ 303.119.
------------------------------------------------------------------------
Subpart E--Procedural Safeguards
------------------------------------------------------------------------
General:
303.400 General responsibility of lead 303.400.
agency for procedural safeguards.
303.401 Definitions of consent, native 303.24, 303.25, 303.29,
language, and personally identifiable 303.401, 303.420, and
information. 303.421.
303.402 Opportunity to examine records. 303.401.
303.403 Prior notice; native language.. 303.421.
303.404 Parent consent................. 303.420.
Note 1 to 303.404...................... 303.401.
Note 2 to 303.404...................... 303.420(c).
303.405 Parent right to decline service 303.420(d).
303.406 Surrogate parents.............. 303.422.
Mediation and Due Process Hearing
Procedures for Parents and Children:
303.419 Mediation...................... 303.430(b); 303.431.
303.420 Due process hearing procedures. 303.430(d) and 303.435-
303.449.
Note 1 to 303.420...................... 303.435-303.439.
Note 2 to 303.420...................... 303.435-303.439.
303.421 Appointment of an impartial 303.435.
person.
303.422 Parent rights in administrative 303.436.
proceedings.
303.423 Convenience of proceedings; 303.437.
timelines.
303.424 Civil action................... 303.438.
303.425 Status of a child during 303.430(e).
proceedings.
Confidentiality:
[[Page 26496]]
303.460 Confidentiality of information. 303.401-303.417.
------------------------------------------------------------------------
Subpart F--State Administration
------------------------------------------------------------------------
General:
303.500 Lead agency establishment or 303.201.
designation.
303.501 Supervision and monitoring of 303.120.
programs.
Lead Agency Procedures for Resolving
Complaints:
303.510 Adopting complaint procedures.. 303.432.
303.511 An organization or individual 303.434(a).
may file a complaint.
303.512 Minimum State complaint 303.433.
procedures.
Policies and Procedures Related to
Financial Matters:
303.520 Policies related to payment for 303.511.
services.
303.521 Fees........................... 303.521.
303.522 Identification and coordination 303.511.
of resources.
303.523 Interagency agreements......... 303.120(f) and 303.511.
303.524 Resolution of disputes......... 303.120(e) and 303.511.
303.525 Delivery of services in a 303.511(d).
timely manner.
303.526 Policy for contracting or 303.121.
otherwise arranging for services.
303.527 Payor of last resort........... 303.510.
303.528 Reimbursement procedures....... 303.122, 303.510(b).
Reporting Requirements:
303.540 Data collection................ 303.124.
Use of funds for State Administration:
303.560 Use of funds by the Lead Agency 303.501.
------------------------------------------------------------------------
Subpart G--State Interagency Coordination Council
------------------------------------------------------------------------
General:
303.600 Establishment of Council....... 303.600.
Note to 303.600 (Paragraph 1).......... 303.601(a)(1)(iii).
Note to 303.600 (Paragraph 2).......... Removed.
303.601 Composition.................... 303.601.
303.602 Use of funds by the Council.... 303.603.
303.603 Meetings....................... 303.602.
303.604 Conflict of interest........... 303.601(d).
Functions of the Council:
303.650 General........................ 303.605.
303.651 Advising and assisting the lead 303.604(a).
agency in its administrative duties.
303.652 Applications................... 303.604(a).
303.653 Transitional services.......... 303.604(a).
303.654 Annual report to the Secretary. 303.604(c).
------------------------------------------------------------------------
\3\ See explanation at the end of this table.
.Explanation of Table: The purpose of this table is to help readers
find where a given section number in the current regulations (column A
of Table) is located in this NPRM, as shown under column B. In general,
the table does not include any new requirements added by Pub. L. 108-
446, or any proposed new regulations that would be added. In the Table,
if a specific section of the current regulations would be removed by
the NPRM (e.g., ``Early intervention program'' under current Sec.
303.11), it would be shown as ``Removed'' under column B.
List of Subjects in 34 CFR Part 303
Education of individuals with disabilities, Grant programs--
education, Infants and toddlers, Reporting and recordkeeping
requirements.
Dated: April 27, 2007.
Margaret Spellings,
Secretary of Education.
For the reasons discussed in this preamble, the Secretary proposes
to amend Title 34 of the Code of Federal Regulations by revising part
303 as follows:
PART 303--EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH
DISABILITIES
Subpart A--General
Purpose and Applicable Regulations
Sec.
303.1 Purpose of the early intervention program for infants and
toddlers with disabilities.
303.2 Eligible recipients of an award.
303.3 Applicable regulations.
Definitions Used in This Part
303.4 Act.
303.5 At-risk infant or toddler.
303.6 Child.
303.7 Consent.
303.8 Council.
303.9 Day.
303.10 Developmental delay.
303.11 Early intervention service program.
303.12 Early intervention service provider.
303.13 Early intervention services.
303.14 Elementary school.
303.15 Free appropriate public education.
303.16 Health services.
303.17 Homeless children.
303.18 Include; including.
303.19 Indian; Indian tribe.
303.20 Individualized family service plan.
303.21 Infant or toddler with a disability.
303.22 Lead agency.
303.23 Local educational agency.
303.24 Multidisciplinary.
303.25 Native language.
303.26 Natural environments.
[[Page 26497]]
303.27 Parent.
303.28 Parent training and information center.
303.29 Personally identifiable.
303.30 Public agency.
303.31 Qualified personnel.
303.32 Secretary.
303.33 Service coordination services (case management).
303.34 State.
303.35 State educational agency.
303.36 Ward of the State.
Subpart B--State Eligibility for a Grant and Requirements for a
Statewide System
General Authority and Eligibility
303.100 General authority.
303.101 State eligibility--requirements for a grant under this part.
State Conformity with Part C of the Act and Abrogation of State
Sovereign Immunity
303.102 State conformity with Part C of the Act.
303.103 Abrogation of State sovereign immunity.
Equipment and Construction
303.104 Acquisition of equipment and construction or alteration of
facilities.
Positive Efforts To Employ and Advance Qualified Individuals with
Disabilities
303.105 Positive efforts to employ and advance qualified individuals
with disabilities.
Minimum Components of a Statewide System
303.110 Minimum components of a statewide system.
303.111 State definition of developmental delay.
303.112 Availability of early intervention services.
303.113 Evaluation, assessment, and nondiscriminatory procedures.
303.114 Individualized family service plans (IFSPs).
303.115 Comprehensive child find system.
303.116 Public awareness program.
303.117 Central directory.
303.118 Comprehensive system of personnel development (CSPD).
303.119 Personnel standards.
303.120 Lead agency role in supervision, monitoring, funding,
interagency coordination, and other responsibilities.
303.121 Policy for contracting or otherwise arranging for services.
303.122 Reimbursement procedures.
303.123 Procedural safeguards.
303.124 Data collection.
303.125 State interagency coordinating council.
303.126 Early intervention services in natural environments.
Subpart C--State Application and Assurances
General
303.200 State application and assurances.
Application Requirements
303.201 Designation of lead agency.
303.202 Certification regarding financial responsibility.
303.203 Statewide system and description of services.
303.204 Application's definition of at-risk infants and toddlers and
description of services.
303.205 Description of use of funds.
303.206 Referral policies for specific children.
303.207 Availability of resources.
303.208 Public participation policies and procedures.
303.209 Transition to preschool and other programs.
303.210 Coordination with Head Start and Early Head Start, early
education, and child care programs.
303.211 State option to make services under this part available to
children ages three and older.
303.212 Additional information and assurances.
Assurances
303.220 Assurances satisfactory to the Secretary.
303.221 Expenditure of funds.
303.222 Payor of last resort.
303.223 Control of funds and property.
303.224 Reports and records.
303.225 Prohibition against commingling and supplanting; indirect
costs.
303.226 Fiscal control.
303.227 Traditionally underserved groups.
Subsequent Applications and Modifications, Eligibility Determinations,
and Standard of Disapproval
303.228 Subsequent State application and modifications of
application.
303.229 Determination by the Secretary that a State is eligible.
303.230 Standard for disapproval of an application.
Department Procedures
303.231 Notice and hearing before determining that a State is not
eligible.
303.232 Hearing Official or Panel.
303.233 Hearing procedures.
303.234 Initial decision; final decision.
303.235 Filing requirements.
303.236 Judicial review.
Subpart D--Child Find, Evaluations and Assessments, and Individualized
Family Service Plans
Identification--Public Awareness, Child Find, and Referral
303.300 Public awareness program--information for parents.
303.301 Comprehensive child find system.
303.302 Referral procedures.
303.303 Screening procedures.
Evaluation and Assessment of the Child and Family and Assessment of
Service Needs
303.320 Evaluation and assessment of the child and family and
assessment of service needs.
Individualized Family Service Plans (IFSPs)
303.340 Individualized family service plans--general.
303.341 [Reserved]
303.342 Procedures for IFSP development, review, and evaluation.
303.343 IFSP team meetings and periodic reviews.
303.344 Content of an IFSP.
303.345 Provision of services before evaluations and assessments are
completed.
303.346 Responsibility and accountability.
Subpart E--Procedural Safeguards General
303.400 General responsibility of lead agency for procedural
safeguards.
Confidentiality
303.401 Confidentiality and opportunity to examine records.
Additional Confidentiality Requirements
303.402 Confidentiality.
303.403 Definitions.
303.404 Notice to parents.
303.405 Access rights.
303.406 Record of access.
303.407 Records on more than one child.
303.408 List of types and locations of information.
303.409 Fees.
303.410 Amendment of records at parent's request.
303.411 Opportunity for a hearing.
303.412 Result of hearing.
303.413 Hearing procedures.
303.414 Consent prior to disclosure or use.
303.415 Safeguards.
303.416 Destruction of information.
303.417 Enforcement.
Parental Consent and Notice
303.420 Parental consent and ability to decline service.
303.421 Prior written notice and procedural safeguards notice.
Surrogate Parents
303.422 Surrogate parents.
Dispute Resolution Options
303.430 State dispute resolution options.
Mediation
303.431 Mediation.
State Complaint Procedures
303.432 Adoption of State complaint procedures.
303.433 Minimum State complaint procedures.
303.434 Filing a complaint.
States That Choose To Adopt the Part C Due Process Hearing Procedures
Under Section 639 of the Act
303.435 Appointment of an impartial due process hearing officer.
303.436 Parental rights in due process hearing proceedings.
303.437 Convenience of hearings and timelines.
303.438 Civil action.
States That Choose To Adopt the Part B Due Process Hearing Procedures
Under Section 615 of the Act
303.440 Filing a due process complaint.
303.441 Due process complaint.
303.442 Resolution process.
[[Page 26498]]
303.443 Impartial due process hearing.
303.444 Hearing rights.
303.445 Hearing decisions.
303.446 Finality of decision; appeal; impartial review.
303.447 Timelines and convenience of hearings and reviews.
303.448 Civil action.
303.449 State enforcement mechanisms.
Subpart F--Use of Funds and Payor of Last Resort
General
303.500 Use of funds and payor of last resort.
Use of Funds
303.501 Permissive use of funds by the lead agency.
Payor of Last Resort
303.510 Payor of last resort.
303.511 Establishing financial responsibility for, and methods of,
ensuring services.
Use of Insurance, Benefits, Systems of Payments, and Fees
303.520 Policies related to use of public insurance or benefits and
private insurance for payment for services.
303.521 System of payments and fees.
Subpart G--State Interagency Coordinating Council
303.600 Establishment of Council.
303.601 Composition.
303.602 Meetings.
303.603 Use of funds by the Council.
303.604 Functions of the Council--required duties.
303.605 Authorized activities by the Council.
Subpart H--Federal Administration and Allocation of Funds Monitoring,
Technical Assistance, and Enforcement
303.700 State monitoring and enforcement.
303.701 State performance plans and data collection.
303.702 State use of targets and reporting.
303.703 Secretary's review and determination regarding State
performance.
303.704 Enforcement.
303.705 Withholding funds.
303.706 Public attention.
303.707 Rule of construction.
303.708 State enforcement.
Reports--Program Information
303.720 Data requirements--general.
303.721 Annual report of children served--report requirement.
303.722 Data reporting.
303.723 Annual report of children served--certification.
303.724 Annual report of children served--other responsibilities of
the lead agency.
Allocation of Funds
303.730 Formula for State allocations.
303.731 Payments to Indians.
303.732 State allotments.
303.733 Reallotment of funds.
303.734 Reservation for State incentive grants.
Authority: 20 U.S.C. 1431 through 1445, unless otherwise noted.
Subpart A--General
Purpose and Applicable Regulations
Sec. 303.1 Purpose of the early intervention program for infants and
toddlers with disabilities.
The purpose of this part is to provide financial assistance to
States to--
(a) Develop and implement a statewide, comprehensive, coordinated,
multidisciplinary, interagency system that provides early intervention
services for infants and toddlers with disabilities and their families;
(b) Facilitate the coordination of payment for early intervention
services from Federal, State, local, and private sources (including
public and private insurance coverage);
(c) Enhance State capacity to provide quality early intervention
services and expand and improve existing early intervention services
being provided to infants and toddlers with disabilities and their
families;
(d) Enhance the capacity of State and local agencies and service
providers to identify, evaluate, and meet the needs of all children,
including historically underrepresented populations, particularly
minority, low-income, inner-city, and rural children, and infants and
toddlers in foster care; and
(e) Encourage States to expand opportunities for children under
three years of age who would be at risk of having substantial
developmental delay if they did not receive early intervention
services.
(Authority: 20 U.S.C. 1400(d)(2), 1431(a)(5), 1435(b))
Sec. 303.2 Eligible recipients of an award.
Eligible recipients include the 50 States, the Commonwealth of
Puerto Rico, the District of Columbia, the Secretary of the Interior,
and the following jurisdictions: Guam, American Samoa, the United
States Virgin Islands, and the Commonwealth of the Northern Mariana
Islands.
(Authority: 20 U.S.C. 1401(31), 1434)
Sec. 303.3 Applicable regulations.
(a) The following regulations apply to this part:
(1) The regulations in this part 303; and
(2) The Education Department General Administrative Regulations
(EDGAR), including 34 CFR parts 76 (except for Sec. 76.103), 77, 79,
80, 81, 82, 84, 85, and 86.
(b) In applying the regulations cited in paragraph (a)(2) of this
section, any reference to State educational agency means the lead
agency under this part.
(Authority: 20 U.S.C. 1221e-3)
Definitions Used in This Part
Sec. 303.4 Act.
Act means the Individuals with Disabilities Education Act, as
amended.
(Authority: 20 U.S.C. 1400(a))
Sec. 303.5 At-risk infant or toddler.
At-risk infant or toddler means an individual under three years of
age who would be at risk of experiencing a substantial developmental
delay if early intervention services were not provided to the
individual. At the State's discretion, at-risk infant or toddler may
include an infant or toddler who is at risk of experiencing
developmental delays because of biological and environmental factors
that can be identified such as low birth weight, respiratory distress
as a newborn, lack of oxygen, brain hemorrhage, infection, nutritional
deprivation, and a history of abuse or neglect, being directly affected
by illegal substance abuse or withdrawal symptoms resulting from
prenatal drug exposure.
(Authority: 20 U.S.C. 1432(1) and 1437(a)(6))
Sec. 303.6 Child.
Child means an individual under the age of six and may include an
infant or toddler with a disability, as that term is defined in Sec.
303.21.
(Authority: 20 U.S.C. 1432(5))
Sec. 303.7 Consent.
Consent means that--
(a) The parent has been fully informed of all information relevant
to the activity for which consent is sought, in the parent's native
language, or other mode of communication;
(b) The parent understands and agrees in writing to the carrying
out of the activity for which the parent's consent is sought, and the
consent describes that activity and lists the records (if any) that
will be released and to whom; and
(c)(1) The parent understands that the granting of consent is
voluntary on the part of the parent and may be revoked at anytime.
(2) If a parent revokes consent, that revocation is not retroactive
(i.e., it does not apply to an action that has occurred before the
consent was revoked).
(Authority: 20 U.S.C. 1439)
Sec. 303.8 Council.
Council means the State Interagency Coordinating Council that meets
the requirements of subpart G of this part.
(Authority: 20 U.S.C. 1432(2))
[[Page 26499]]
Sec. 303.9 Day.
Day means calendar day, unless otherwise indicated.
(Authority: 20 U.S.C. 1221e-3)
Sec. 303.10 Developmental delay.
Developmental delay, when used with respect to a child residing in
a State, has the meaning given that term by the State under Sec.
303.111.
(Authority: 20 U.S.C. 1432(3))
Sec. 303.11 Early intervention service program.
Early intervention service program or EIS program means an entity
designated by the lead agency for reporting under Sec. Sec. 303.700
through 303.702.
(Authority: 20 U.S.C. 1416, 1431-1444)
Sec. 303.12 Early intervention service provider.
(a) Early intervention service provider or EIS provider means an
entity (whether public, private, or nonprofit) or an individual that
provides early intervention services under Part C of the Act, whether
or not the entity or individual receives Federal funds under Part C of
the Act, and may include, where appropriate, the lead agency and a
public agency responsible for providing early intervention services to
infants and toddlers with disabilities in the State under Part C of the
Act.
(b) An EIS provider is responsible for--
(1) Participating in the multidisciplinary team's assessment of an
infant or toddler with a disability and a family-directed assessment of
the resources, priorities, and concerns of the infant's or toddler's
family, as related to the needs of the infant or toddler, in the
development of integrated goals and outcomes for the individualized
family service plan (IFSP);
(2) Providing early intervention services in accordance with the
IFSP of the infant or toddler with a disability; and
(3) Consulting with and training parents and others regarding the
provision of the early intervention services described in the IFSP of
the infant or toddler with a disability.
(Authority: 20 U.S.C. 1431-1444)
Sec. 303.13 Early intervention services.
(a) General. Early intervention services means developmental
services that--
(1) Are provided under public supervision;
(2) Are selected in collaboration with the parents;
(3) Are provided at no cost, except, subject to Sec. Sec. 303.520
and 303.521, where Federal or State law provides for a system of
payments by families, including a schedule of sliding fees;
(4) Are designed to meet the developmental needs of an infant or
toddler with a disability and as requested by the family, the needs of
the family to assist appropriately in the infant's or toddler's
development, as identified by the individualized family service plan
team, in any one or more of the following areas, including--
(i) Physical development;
(ii) Cognitive development;
(iii) Communication development;
(iv) Social or emotional development; or
(v) Adaptive development;
(5) Meet the standards of the State in which the services are
provided, including the requirements of Part C of the Act;
(6) Include services identified under paragraph (b) of this
section;
(7) Are provided by qualified personnel (as that term is defined in
Sec. 303.31), including the types of personnel listed in paragraph (c)
of this section;
(8) To the maximum extent appropriate, are provided in natural
environments, as defined in Sec. 303.26 and consistent with Sec.
303.126; and
(9) Are provided in conformity with an individualized family
service plan adopted in accordance with section 636 of the Act and
Sec. 303.20.
(b) Types of early intervention services. Subject to paragraph (d)
of this section, early intervention services include the following
services defined in this paragraph:
(1) Assistive technology devices and services are defined as
follows:
(i) Assistive technology device means any item, piece of equipment,
or product system, whether acquired commercially off the shelf,
modified, or customized, that is used to increase, maintain, or improve
the functional capabilities of an infant or toddler with a disability.
The term does not include a medical device that is surgically
implanted, including cochlear implants, or the optimization (e.g.,
mapping) or the maintenance or replacement of that device.
(ii) Assistive technology service means any service that directly
assists an infant or toddler with a disability in the selection,
acquisition, or use of an assistive technology device. The term
includes--
(A) The evaluation of the needs of an infant or toddler with a
disability, including a functional evaluation of the infant or toddler
with a disability in the child's customary environment;
(B) Purchasing, leasing, or otherwise providing for the acquisition
of assistive technology devices by infants or toddlers with
disabilities;
(C) Selecting, designing, fitting, customizing, adapting, applying,
maintaining, repairing, or replacing assistive technology devices;
(D) Coordinating and using other therapies, interventions, or
services with assistive technology devices, such as those associated
with existing education and rehabilitation plans and programs;
(E) Training or technical assistance for an infant or toddler with
a disability or, if appropriate, that child's family; and
(F) Training or technical assistance for professionals (including
individuals providing education or rehabilitation services) or other
individuals who provide services to, or are otherwise substantially
involved in the major life functions of, infants and toddlers with
disabilities.
(2) Audiology services includes--
(i) Identification of children with auditory impairment, using at
risk criteria and appropriate audiologic screening techniques;
(ii) Determination of the range, nature, and degree of hearing loss
and communication functions, by use of audiological evaluation
procedures;
(iii) Referral for medical and other services necessary for the
habilitation or rehabilitation of an infant or toddler with a
disability who has an auditory impairment;
(iv) Provision of auditory training, aural rehabilitation, speech
reading and listening devices, orientation and training, and other
services;
(v) Provision of services for prevention of hearing loss; and
(vi) Determination of the child's need for individual
amplification, including selecting, fitting, and dispensing appropriate
listening and vibrotactile devices, and evaluating the effectiveness of
those devices.
(3) Family training, counseling, and home visits means services
provided, as appropriate, by social workers, psychologists, and other
qualified personnel to assist the family of an infant or toddler with a
disability in understanding the special needs of the child and
enhancing the child's development.
(4) Health services has the meaning given the term in Sec. 303.16.
(5) Medical services means services provided by a licensed
physician for diagnostic or evaluation purposes to determine a child's
developmental status and need for early intervention services.
(6) Occupational therapy includes services to address the
functional needs of an infant or toddler with a disability
[[Page 26500]]
related to adaptive development, adaptive behavior and play, and
sensory, motor, and postural development. These services are designed
to improve the child's functional ability to perform tasks in home,
school, and community settings, and include--
(i) Identification, assessment, and intervention;
(ii) Adaptation of the environment, and selection, design, and
fabrication of assistive and orthotic devices to facilitate development
and promote the acquisition of functional skills; and
(iii) Prevention or minimization of the impact of initial or future
impairment, delay in development, or loss of functional ability.
(7) Physical therapy includes services to address the promotion of
sensorimotor function through enhancement of musculoskeletal status,
neurobehavioral organization, perceptual and motor development,
cardiopulmonary status, and effective environmental adaptation. These
services include--
(i) Screening, evaluation, and assessment of children to identify
movement dysfunction;
(ii) Obtaining, interpreting, and integrating information
appropriate to program planning to prevent, alleviate, or compensate
for movement dysfunction and related functional problems; and
(iii) Providing individual and group services or treatment to
prevent, alleviate, or compensate for, movement dysfunction and related
functional problems.
(8) Psychological services includes--
(i) Administering psychological and developmental tests and other
assessment procedures;
(ii) Interpreting assessment results;
(iii) Obtaining, integrating, and interpreting information about
child behavior and child and family conditions related to learning,
mental health, and development; and
(iv) Planning and managing a program of psychological services,
including psychological counseling for children and parents, family
counseling, consultation on child development, parent training, and
education programs.
(9) Service coordination services has the meaning given the term in
Sec. 303.33.
(10) Social work services includes--
(i) Making home visits to evaluate a child's living conditions and
patterns of parent-child interaction;
(ii) Preparing a social or emotional developmental assessment of
the infant or toddler within the family context;
(iii) Providing individual and family-group counseling with parents
and other family members, and appropriate social skill-building
activities with the infant or toddler and parents;
(iv) Working with those problems in the living situation (home,
community, and any center where early intervention services are
provided) of an infant or toddler with a disability and the family of
that child that affect the child's maximum utilization of early
intervention services; and
(v) Identifying, mobilizing, and coordinating community resources
and services to enable the infant or toddler with a disability and the
family to receive maximum benefit from early intervention services.
(11) Special instruction includes--
(i) The design of learning environments and activities that promote
the infant's or toddler's acquisition of skills in a variety of
developmental areas, including cognitive processes and social
interaction;
(ii) Curriculum planning, including the planned interaction of
personnel, materials, and time and space, that leads to achieving the
outcomes in the individualized family service plan for the infant or
toddler with a disability;
(iii) Providing families with information, skills, and support
related to enhancing the skill development of the child; and
(iv) Working with the infant or toddler with a disability to
enhance the child's development.
(12) Speech-language pathology services includes--
(i) Identification of children with communication or language
disorders and delays in development of communication skills, including
the diagnosis and appraisal of specific disorders and delays in those
skills;
(ii) Referral for medical or other professional services necessary
for the habilitation or rehabilitation of children with communicative
or language disorders and delays in development of communication
skills;
(iii) Provision of services for the habilitation, rehabilitation,
or prevention of communicative or language disorders and delays in
development of communication skills; and
(iv) Provision of sign language, cued language, and auditory/oral
language services, which, as used with respect to infants and toddlers
with disabilities who are hearing impaired, includes services to the
infant or toddler with a disability and the family to teach sign
language, cued language, and auditory/oral language, as well as to
provide oral transliteration services, sign language, and cued language
interpreting services.
(13) Transportation and related costs includes the cost of travel
(e.g., mileage, or travel by common carrier or other means) and other
costs (e.g., tolls and parking expenses) that are necessary to enable
an infant or toddler with a disability and the child's family to
receive early intervention services.
(14) Vision services means--
(i) Evaluation and assessment of visual functioning, including the
diagnosis and appraisal of specific visual disorders, delays, and
abilities;
(ii) Referral for medical or other professional services necessary
for the habilitation or rehabilitation of visual functioning disorders,
or both; and
(iii) Communication skills training, orientation and mobility
training for all environments, visual training, independent living
skills training, and additional training necessary to activate visual
motor abilities.
(c) Qualified personnel. The following are the types of qualified
personnel who provide early intervention services under this part:
(1) Audiologists.
(2) Family therapists.
(3) Nurses.
(4) Occupational therapists.
(5) Orientation and mobility specialists.
(6) Pediatricians and other physicians for diagnostic and
evaluation purposes.
(7) Physical therapists.
(8) Psychologists.
(9) Registered dieticians.
(10) Social workers.
(11) Special educators, including teachers of children with hearing
impairments (including deafness) and teachers of children with visual
impairments (including blindness).
(12) Speech and language pathologists.
(13) Vision specialists, including ophthalmologists and
optometrists.
(d) Other services. The services and personnel identified and
defined in paragraphs (b) and (c) of this section do not comprise
exhaustive lists of the types of services that may constitute early
intervention services or the types of qualified personnel that may
provide early intervention services. Nothing in this section prohibits
the identification on the IFSP of another type of service as an early
intervention service provided that the service meets the criteria
identified in paragraph (a) of this section or of another type of
personnel that may provide early intervention services in accordance
with this part, provided such personnel meet the requirements in Sec.
303.31.
(Authority: 20 U.S.C. 1432(4))
[[Page 26501]]
Sec. 303.14 Elementary school.
Elementary school means a nonprofit institutional day or
residential school, including a public elementary charter school that
provides elementary education, as determined under State law.
(Authority: 20 U.S.C. 1401(6))
Sec. 303.15 Free appropriate public education.
Free appropriate public education or FAPE means special education
and related services that--
(a) Are provided at public expense, under public supervision and
direction, and without charge;
(b) Meet the standards of the State educational agency (SEA),
including the requirements of Part B of the Act;
(c) Include an appropriate preschool, elementary school, or
secondary school education in the State involved; and
(d) Are provided in conformity with an individualized education
program (IEP) that meets the requirements of 34 CFR 300.320 through
300.324.
(Authority: 20 U.S.C. 1401(9))
Sec. 303.16 Health services.
(a) Health services means services necessary to enable a child to
benefit from the other early intervention services under this part
during the time that the child is eligible to receive other early
intervention services.
(b) The term includes--
(1) Such services as clean intermittent catheterization,
tracheostomy care, tube feeding, the changing of dressings or colostomy
collection bags, and other health services; and
(2) Consultation by physicians with other service providers
concerning the special health care needs of infants and toddlers with
disabilities that will need to be addressed in the course of providing
other early intervention services.
(c) The term does not include--
(1) Services that are--
(i) Surgical in nature (such as cleft palate surgery, surgery for
club foot, or the shunting of hydrocephalus);
(ii) Purely medical in nature (such as hospitalization for
management of congenital heart ailments, or the prescribing of medicine
or drugs for any purpose); or
(iii) Related to the implementation, optimization (e.g., mapping),
maintenance, or replacement of a medical device that is surgically
implanted, including cochlear implants.
(A) Nothing in this part limits the right of an infant or toddler
with a disability with a surgically implanted device (e.g. cochlear
implant) to receive the early intervention services that are identified
on the child's IFSP as being needed to meet the child's developmental
outcomes.
(B) Nothing in this part prevents the EIS provider from routinely
checking that either the hearing aid or the external components of a
surgically implanted device (e.g., cochlear implant) of an infant or
toddler with a disability are functioning properly.
(2) Devices (such as heart monitors, respirators and oxygen, and
gastrointestinal feeding tubes and pumps) necessary to control or treat
a medical condition.
(3) Medical-health services (such as immunizations and regular
``well-baby'' care) that are routinely recommended for all children.
(Authority: 20 U.S.C. 1432(4))
Sec. 303.17 Homeless children.
Homeless children means children under the age of three years who
meet the definition given the term homeless children and youths in
section 725 (42 U.S.C. 11434a) of the McKinney-Vento Homeless
Assistance Act, as amended, 42 U.S.C. 11431 et seq.
(Authority: 20 U.S.C. 1401(11))
Sec. 303.18 Include; including.
Include; including means that the items named are not all of the
possible items that are covered, whether like or unlike the ones named.
(Authority: 20 U.S.C. 1221e-3)
Sec. 303.19 Indian; Indian tribe.
(a) Indian means an individual who is a member of an Indian tribe.
(b) Indian tribe means any Federal or State Indian tribe, band,
rancheria, pueblo, colony, or community, including any Alaska Native
village or regional village corporation (as defined in or established
under the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq.).
(c) Nothing in this definition is intended to indicate that the
Secretary of the Interior is required to provide services or funding to
a State Indian Tribe that is not listed in the Federal Register list of
Indian entities recognized as eligible to receive services from the
United States, published pursuant to section 104 of the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a-1.
(Authority: 20 U.S.C. 1401(12)-(13))
Sec. 303.20 Individualized family service plan.
Individualized family service plan or IFSP means a written plan for
providing early intervention services to an infant or toddler with a
disability under this part and the infant's or toddler's family that--
(a) Is based on the evaluation and assessment described in Sec.
303.320;
(b) Includes the content specified in Sec. 303.344;
(c) Is implemented as soon as possible once parental consent to
early intervention services on the IFSP is obtained (consistent with
Sec. 303.420); and
(d) Is developed in accordance with the IFSP procedures in
Sec. Sec. 303.342, 303.343, and 303.345.
(Authority: 20 U.S.C. 1401(15), 1435(a)(4), 1436)
Sec. 303.21 Infant or toddler with a disability.
(a) Infant or toddler with a disability means an individual under
three years of age who needs early intervention services because the
individual--
(1) Is experiencing a developmental delay, as measured by
appropriate diagnostic instruments and procedures, in one or more of
the following areas:
(i) Cognitive development.
(ii) Physical development, including vision and hearing.
(iii) Communication development.
(iv) Social or emotional development.
(v) Adaptive development; or
(2) Has a diagnosed physical or mental condition that--
(i) Has a high probability of resulting in developmental delay; and
(ii) Includes conditions such as chromosomal abnormalities; genetic
or congenital disorders; severe sensory impairments; inborn errors of
metabolism; disorders reflecting disturbance of the development of the
nervous system; congenital infections; and disorders secondary to
exposure to toxic substances, including fetal alcohol syndrome.
(b) Infant or toddler with a disability also may include, at a
State's discretion, an at-risk infant or toddler (as defined in Sec.
303.5).
(c) Infant or toddler with a disability also may include, at a
State's discretion, a child with a disability who is eligible for
services under section 619 of the Act and who previously received
services under this part until the child enters, or is eligible under
State law to enter, kindergarten or elementary school, as appropriate,
provided that any programs under this part serving the child must
include--
(1) An educational component that promotes school readiness and
incorporates pre-literacy, language, and numeracy skills; and
(2) A written notification to parents of their rights and
responsibilities in determining whether their child will continue to
receive services under this
[[Page 26502]]
part or participate in preschool programs under section 619 of the Act.
(Authority: 20 U.S.C. 1401(16), 1432(5))
Sec. 303.22 Lead agency.
Lead agency means the agency designated by the State's Governor
under section 635(a)(10) of the Act and Sec. 303.120 that receives
funds under section 643 of the Act to administer the State's
responsibilities under Part C of the Act.
(Authority: 20 U.S.C. 1435(a)(10))
Sec. 303.23 Local educational agency.
(a) General. Local educational agency or LEA means a public board
of education or other public authority legally constituted within a
State for either administrative control or direction of, or to perform
a service function for, public elementary schools or secondary schools
in a city, county, township, school district, or other political
subdivision of a State, or for a combination of school districts or
counties as are recognized in a State as an administrative agency for
its public elementary schools or secondary schools.
(b) Educational service agencies and other public institutions or
agencies. The term includes the following:
(1) Educational service agency, defined as a regional public
multiservice agency--
(i) Authorized by State law to develop, manage, and provide
services or programs to LEAs; and
(ii) Recognized as an administrative agency for purposes of the
provision of special education and related services provided within
public elementary schools and secondary schools of the State.
(2) Any other public institution or agency having administrative
control and direction of a public elementary school or secondary
school, including a public charter school that is established as an LEA
under State law.
(3) Entities that meet the definition of intermediate educational
unit or IEU in section 602(23) of the Act, as in effect prior to June
4, 1997. Under that definition an intermediate educational unit or IEU
means any public authority other than an LEA that--
(i) Is under the general supervision of a State educational agency;
(ii) Is established by State law for the purpose of providing free
appropriate public education on a regional basis; and
(iii) Provides special education and related services to children
with disabilities within the State.
(c) BIA funded schools. The term includes an elementary school or
secondary school funded by the Bureau of Indian Affairs, and not
subject to the jurisdiction of any SEA other than the Bureau of Indian
Affairs, but only to the extent that the inclusion makes the school
eligible for programs for which specific eligibility is not provided to
the school in another provision of law and the school does not have a
student population that is smaller than the student population of the
LEA receiving assistance under the Act with the smallest student
population.
(Authority: 20 U.S.C. 1401(5), 1401(19))
Sec. 303.24 Multidisciplinary.
Multidisciplinary, with respect to evaluation and assessment of a
child, an IFSP team, or IFSP development under subpart D of this part,
means the involvement of two or more individuals from separate
disciplines or professions or one individual who is qualified in more
than one discipline or profession.
(Authority: 20 U.S.C. 1221e-3, 1435(a)(3), 1436(a)(1), 1436(a)(3))
Sec. 303.25 Native language.
(a) Native language, when used with respect to an individual who is
limited English proficient, means the following:
(1) The language or mode of communication normally used by that
individual, or, in the case of a child, the language or mode of
communication normally used by the parents of the child, except as
provided in paragraph (a)(2) of this section.
(2) In all direct contact with a child (including evaluation of the
child), the language or mode of communication normally used by the
child in the home or learning environment.
(b) For an individual with deafness or blindness, or for an
individual with no written language, the term native language means the
mode of communication that is normally used by the individual (such as
sign language, Braille, or oral communication).
(Authority: 20 U.S.C. 1401(20))
Sec. 303.26 Natural environments.
Natural environments means settings that are natural or normal for
an infant or toddler without a disability, may include the home, and
must be consistent with the provisions of Sec. 303.126.
(Authority: 20 U.S.C. 1435, 1436)
Sec. 303.27 Parent.
(a) Parent means--
(1) A biological or adoptive parent of a child;
(2) A foster parent, unless State law, regulations, or contractual
obligations with a State or local entity prohibit a foster parent from
acting as a parent;
(3) A guardian generally authorized to act as the child's parent,
or authorized to make early intervention, educational, health or
developmental decisions for the child (but not the State if the child
is a ward of the State);
(4) An individual acting in the place of a biological or adoptive
parent (including a grandparent, stepparent, or other relative) with
whom the child lives, or an individual who is legally responsible for
the child's welfare; or
(5) A surrogate parent who has been appointed in accordance with
Sec. 303.422 or section 639(a)(5) of the Act.
(b)(1) Except as provided in paragraph (b)(2) of this section, the
biological or adoptive parent, when attempting to act as the parent
under this part and when more than one party is qualified under
paragraph (a) of this section to act as a parent, must be presumed to
be the parent for purposes of this section unless the biological or
adoptive parent does not have legal authority to make health,
educational or early intervention services decisions for the child.
(2) If a judicial decree or order identifies a specific person or
persons under paragraphs (a)(1) through (a)(4) of this section to act
as the ``parent'' of a child or to make health, educational, or early
intervention service decisions on behalf of a child, then the person or
persons must be determined to be the ``parent'' for purposes of Part C
of the Act, except that an EIS provider or public agency that provides
early intervention or other services to a child or any family member of
that child may not act as the parent.
(Authority: 20 U.S.C. 1401(23), 1439(a)(5))
Sec. 303.28 Parent training and information center.
Parent training and information center means a center assisted
under section 671 or 672 of the Act.
(Authority: 20 U.S.C. 1401(25))
Sec. 303.29 Personally identifiable.
Personally identifiable means information that contains--
(a) The name of the child, the child's parent, or other family
member;
(b) The address of the child or child's family;
(c) A personal identifier, such as the child's or parent's social
security number or student number; or
(d) A list of personal characteristics or other information that
would make the child's or parent's identity easily traceable.
(Authority: 20 U.S.C. 1415, 1439)
Sec. 303.30 Public agency.
Public agency includes the lead agency and any other agency or
political
[[Page 26503]]
subdivision of the State that is responsible for providing early
intervention services to infants and toddlers with disabilities under
this part and their families.
(Authority: 20 U.S.C. 1435(a)(10))
Sec. 303.31 Qualified personnel.
Qualified personnel means personnel who have met State approved or
recognized certification, licensing, registration, or other comparable
requirements that apply to the area in which the individuals are
providing early intervention services.
(Authority: 20 U.S.C. 1432(4))
Sec. 303.32 Secretary.
Secretary means the Secretary of Education.
(Authority: 20 U.S.C. 1401(28))
Sec. 303.33 Service coordination services (case management).
(a) Service coordination services means services provided by a
service coordinator to assist and enable an infant or toddler with a
disability and the child's family to receive the rights, procedural
safeguards, and services that are authorized to be provided under Part
C of the Act, including--
(1) Coordinating all services required under this part across
agency lines;
(2) Assisting parents of infants and toddlers with disabilities in
gaining access to and coordinating the provision of the early
intervention services and coordinating other services identified in the
IFSP under Sec. 303.344(e) that are needed or are being provided to
the infant or toddler with a disability and that child's family; and
(3) Serving as the single point of contact for carrying out the
activities described in paragraph (b) of this section.
(b) The term includes--
(1) Coordinating the performance of evaluations and assessments;
(2) Facilitating and participating in the development, review, and
evaluation of IFSPs;
(3) Assisting families in identifying available EIS providers;
(4) Coordinating and monitoring the delivery of services required
under this part;
(5) Informing families of their rights and procedural safeguards,
as set forth in subpart E of this part and related resources;
(6) Coordinating the funding sources for services required under
this part; and
(7) Facilitating the development of a transition plan to preschool,
school, or other services, if appropriate.
(c) The lead agency's or an EIS provider's use of the term service
coordination or service coordination services does not preclude
characterization of the services as case management or any other
service that is covered by another payor of last resort (including
Medicaid), for purposes of claims in compliance with the requirements
of proposed Sec. 303.501 (Payor of last resort).
(Authority: 20 U.S.C. 1432(4), 1435(a)(4), 1436(d)(7))
Sec. 303.34 State.
Except as provided in Sec. 303.732(d)(3) (regarding State
allotments under this part), State means each of the 50 States, the
Commonwealth of Puerto Rico, the District of Columbia, and the
jurisdictions of Guam, American Samoa, the United States Virgin
Islands, and the Commonwealth of the Northern Mariana Islands.
(Authority: 20 U.S.C. 1401(31))
Sec. 303.35 State educational agency.
(a) State educational agency or SEA means the State board of
education or other agency or officer primarily responsible for the
State supervision of public elementary schools and secondary schools,
or, if there is no such officer or agency, an officer or agency
designated by the Governor or by State law.
(b) The term includes the agency that receives funds under sections
611 and 619 of the Act to administer the State's responsibilities under
Part B of the Act.
(Authority: 20 U.S.C. 1401(32))
Sec. 303.36 Ward of the State.
(a) General. Subject to paragraph (b) of this section, ward of the
State means a child who, as determined by the State where the child
resides, is--
(1) A foster child;
(2) A ward of the State; or
(3) In the custody of a public child welfare agency.
(b) Exception. Ward of the State does not include a foster child
who has a foster parent who meets the definition of a parent in Sec.
303.27.
(Authority: 20 U.S.C. 1401(36))
Subpart B--State Eligibility for a Grant and Requirements for a
Statewide System
General Authority and Eligibility
Sec. 303.100 General authority.
The Secretary, in accordance with Part C of the Act, makes grants
to States (from their allotments under section 643 of the Act) to
assist each State to maintain and implement a statewide, comprehensive,
coordinated, multidisciplinary, interagency system to provide early
intervention services for infants and toddlers with disabilities and
their families.
(Authority: 20 U.S.C. 1433)
Sec. 303.101 State eligibility--requirements for a grant under this
part.
In order to be eligible for a grant under Part C of the Act for any
fiscal year, a State must meet the following conditions:
(a) Assurances regarding early intervention services and a
statewide system. The State must provide assurances to the Secretary
that--
(1) The State has adopted a policy that appropriate early
intervention services are available to all infants and toddlers with
disabilities in the State and their families, including--
(i) Indian infants and toddlers with disabilities and their
families residing on a reservation geographically located in the State;
(ii) Infants and toddlers with disabilities who are homeless
children and their families; and
(iii) Infants and toddlers with disabilities who are wards of the
State; and
(2) The State has in effect a statewide system of early
intervention services that meets the requirements of section 635 of the
Act, including, at a minimum, the components required in Sec. Sec.
303.111 through 303.126.
(b) State application and assurances. The State must provide
information and assurances to the Secretary, in accordance with subpart
C of this part, including--
(1) Information that shows that the State meets the State
application requirements in Sec. Sec. 303.200 through 303.212; and
(2) Assurances that the State also meets the requirements in
Sec. Sec. 303.221 through 303.227.
(Authority: 20 U.S.C. 1434, 1435, 1437)
State Conformity With Part C of the Act and Abrogation of State
Sovereign Immunity
Sec. 303.102 State conformity with Part C of the Act.
Each State that receives funds under Part C of the Act must ensure
that any State rules, regulations, and policies relating to this part
conform to the purposes and requirements of this part.
(Authority: 20 U.S.C. 1407(a)(1))
Sec. 303.103 Abrogation of State sovereign immunity.
(a) General. A State is not immune under the 11th amendment of the
[[Page 26504]]
Constitution of the United States from suit in Federal court for a
violation of Part C of the Act.
(b) Remedies. In a suit against a State for a violation of Part C
of the Act, remedies (including remedies both at law and in equity) are
available for such a violation to the same extent as those remedies are
available for such a violation in the suit against any public entity
other than a State.
(c) Effective date. Paragraphs (a) and (b) of this section apply
with respect to violations that occur in whole or part after October
30, 1990, the date of enactment of the Education of the Handicapped Act
Amendments of 1990.
(Authority: 20 U.S.C. 1403)
Equipment and Construction
Sec. 303.104 Acquisition of equipment and construction or alteration
of facilities.
(a) General. If the Secretary determines that a program authorized
under Part C of the Act will be improved by permitting program funds to
be used to acquire appropriate equipment, or to construct new
facilities or alter existing facilities, the Secretary may allow the
use of those funds for those purposes.
(b) Compliance with certain regulations. Any construction of new
facilities or alteration of existing facilities under paragraph (a) of
this section must comply with the requirements of--
(1) Appendix A of part 36 of title 28, Code of Federal Regulations
(commonly known as the ``Americans with Disabilities Accessibility
Guidelines for Buildings and Facilities''); or
(2) Appendix A of subpart 101-19.6 of title 41, Code of Federal
Regulations (commonly known as the ``Uniform Federal Accessibility
Standards'').
(Authority: 20 U.S.C. 1404)
Positive Efforts to Employ and Advance Qualified Individuals with
Disabilities
Sec. 303.105 Positive efforts to employ and advance qualified
individuals with disabilities.
Each recipient of assistance under Part C of the Act must make
positive efforts to employ and advance in employment, qualified
individuals with disabilities in programs assisted under Part C of the
Act.
(Authority: 20 U.S.C. 1405)
Minimum Components of a Statewide System
Sec. 303.110 Minimum components of a statewide system.
Each statewide system (system) must include, at a minimum, the
components described in Sec. Sec. 303.111 through 303.126.
(Authority: 20 U.S.C. 1435(a))
Sec. 303.111 State definition of developmental delay.
Each system must include the State's rigorous definition of
developmental delay, consistent with Sec. Sec. 303.10 and 303.203(c),
that will be used by the State in carrying out programs under Part C of
the Act in order to appropriately identify infants and toddlers with
disabilities who are in need of services under Part C of the Act. The
definition must--
(a) Describe, for each of the areas listed in Sec. 303.18(a)(1),
the evaluation and assessment procedures, consistent with Sec.
303.320, that will be used to measure a child's development; and
(b) Specify the level of developmental delay in functioning or
other comparable criteria that constitute a developmental delay in one
or more of the developmental areas identified in Sec. 303.21(a)(1).
(Authority: 20 U.S.C. 1435(a)(1))
Sec. 303.112 Availability of early intervention services.
Each system must include a State policy that is in effect and that
ensures that appropriate early intervention services are based on
scientifically based research, to the extent practicable, and are
available to all infants and toddlers with disabilities and their
families, including--
(a) Indian infants and toddlers with disabilities and their
families residing on a reservation geographically located in the State;
and
(b) Infants and toddlers with disabilities who are homeless
children and their families.
(Authority: 20 U.S.C. 1435(a)(2))
Sec. 303.113 Evaluation, assessment, and nondiscriminatory
procedures.
(a) Subject to paragraph (b) of this section, each system must
ensure the performance of--
(1) A timely, comprehensive, multidisciplinary evaluation of the
functioning of each infant or toddler with a disability in the State;
and
(2) A family-directed identification of the needs of the family of
the infant or toddler, to assist appropriately in the development of
the infant or toddler.
(b) The evaluation and family-directed identification required in
paragraph (a) of this section must meet the requirements of Sec.
303.320.
(Authority: 20 U.S.C. 1435(a)(3))
Sec. 303.114 Individualized family service plans (IFSPs).
Each system must include, for each infant or toddler with a
disability in the State, an IFSP that meets the requirements of
Sec. Sec. 303.340 through 303.345, including service coordination
services in accordance with the IFSP.
(Authority: 20 U.S.C. 1435(a)(4))
Sec. 303.115 Comprehensive child find system.
Each system must include a comprehensive child find system that
meets the requirements in Sec. Sec. 303.301 through 303.303.
(Authority: 20 U.S.C. 1435(a)(5))
Sec. 303.116 Public awareness program.
Each system must include a public awareness program that--
(a) Focuses on early identification of infants and toddlers with
disabilities; and
(b) Provides information to parents of infants and toddlers through
primary referral sources in accordance with Sec. 303.300.
(Authority: 20 U.S.C. 1435(a)(6))
Sec. 303.117 Central directory.
Each system must include a central directory that is accessible to
the general public (i.e., through the lead agency's Web site and other
appropriate means) and includes accurate, up-to-date information
about--
(a) Public and private early intervention services, resources, and
experts available in the State;
(b) Professional and other groups (including parent support and
training and information centers, such as those funded under the Act)
that provide assistance to infants and toddlers with disabilities
eligible under Part C of the Act and their families; and
(c) Research and demonstration projects being conducted in the
State relating to infants and toddlers with disabilities.
(Authority: 20 U.S.C. 1435(a)(7))
Sec. 303.118 Comprehensive system of personnel development (CSPD).
Each system must include a comprehensive system of personnel
development, including the training of paraprofessionals and the
training of primary referral sources with respect to the basic
components of early intervention services available in the State,
that--
(a) Must include--
(1) Implementing innovative strategies and activities for the
recruitment and retention of EIS providers;
(2) Promoting the preparation of EIS providers who are fully and
[[Page 26505]]
appropriately qualified to provide early intervention services under
this part; and
(3) Training personnel to coordinate transition services for
infants and toddlers with disabilities who are transitioning from an
early intervention services program under Part C of the Act to a
preschool program under section 619 of the Act, Head Start, Early Head
Start, an elementary school program under Part B of the Act or another
appropriate program; and
(b) May include--
(1) Training personnel to work in rural and inner-city areas;
(2) Training personnel in the emotional and social development of
young children; and
(3) Training personnel to support families in participating fully
in the development and implementation of the child's IFSP.
(Authority: 20 U.S.C. 1435(a)(8))
Sec. 303.119 Personnel standards.
(a) General. Each system must include policies and procedures
relating to the establishment and maintenance of qualification
standards to ensure that personnel necessary to carry out the purposes
of this part are appropriately and adequately prepared and trained.
(b) Qualification standards. The policies and procedures required
in paragraph (a) of this section must provide for the establishment and
maintenance of qualification standards that are consistent with any
State-approved or State-recognized certification, licensing,
registration, or other comparable requirements that apply to the
profession, discipline, or area in which personnel are providing early
intervention services.
(c) Use of paraprofessionals and assistants. Nothing in Part C of
the Act may be construed to prohibit the use of paraprofessionals and
assistants who are appropriately trained and supervised in accordance
with State law, regulation, or written policy, to assist in the
provision of early intervention services under Part C of the Act to
infants and toddlers with disabilities.
(d) Policy to address shortage of personnel. A State may adopt a
policy that includes making ongoing good-faith efforts to recruit and
hire appropriately and adequately trained personnel to provide early
intervention services to infants and toddlers with disabilities,
including, in a geographic area of the State where there is a shortage
of such personnel, the most qualified individuals available who are
making satisfactory progress toward completing applicable course work
necessary to meet the standards described in paragraphs (a) and (b) of
this section.
(Authority: 20 U.S.C. 1435(a)(9), 1435(b))
Sec. 303.120 Lead agency role in supervision, monitoring, funding,
interagency coordination, and other responsibilities.
Each system must include a single line of responsibility in a lead
agency designated or established by the Governor that is responsible
for the following:
(a)(1) The general administration and supervision of programs and
activities receiving assistance under Part C of the Act; and
(2) The monitoring of programs and activities used by the State to
carry out Part C of the Act (whether or not the programs or activities
are receiving assistance under Part C of the Act), to ensure that the
State complies with Part C of the Act, including--
(i) Monitoring agencies, institutions, and organizations used by
the State to carry out Part C of the Act;
(ii) Enforcing any obligations imposed on those agencies under Part
C of the Act and these regulations;
(iii) Providing technical assistance, if necessary, to those
agencies, institutions, and organizations;
(iv) Correcting any noncompliance identified through monitoring as
soon as possible and in no case later than one year after the lead
agency's identification of the noncompliance; and
(v) Conducting the activities in paragraphs (a)(2)(i) through
(a)(2)(iv) of this section, consistent with Sec. Sec. 303.700 through
303.707, and any other activities required by the State under those
sections.
(b) The identification and coordination of all available resources
for early intervention services within the State, including those from
Federal, State, local, and private sources, consistent with subpart F
of this part.
(c) The assignment of financial responsibility in accordance with
subpart F of this part.
(d) The development of procedures in accordance with subpart F of
these regulations to ensure that early intervention services are
provided to infants and toddlers with disabilities and their families
under Part C of the Act in a timely manner, pending the resolution of
any disputes among public agencies or service providers.
(e) The resolution of intra- and interagency disputes in accordance
with subpart F of this part.
(f) The entry into formal interagency agreements or other written
methods of establishing financial responsibility, consistent with Sec.
303.511, that define the financial responsibility of each agency for
paying for early intervention services (consistent with State law) and
procedures for resolving disputes and that include all additional
components necessary to ensure meaningful cooperation and coordination
as set forth in subpart F of this part.
(Authority: 20 U.S.C. 1416, 1435(a)(10), 1442)
Sec. 303.121 Policy for contracting or otherwise arranging for
services.
Each system must include a policy pertaining to the contracting or
making of other arrangements with public or private individual or
agency service providers to provide early intervention services in the
State, consistent with the provisions of Part C of the Act, including
the contents of the application, and the conditions of the contract or
other arrangements. The policy must--
(a) Include a requirement that all early intervention services must
meet State standards and be consistent with the provisions of this
part; and
(b) Be consistent with The Education Department General
Administrative Regulations in 34 CFR part 80.
(Authority: 20 U.S.C. 1435(a)(11))
Sec. 303.122 Reimbursement procedures.
Each system must include procedures for securing the timely
reimbursement of funds used under Part C of the Act, in accordance with
subpart F of this part.
(Authority: 20 U.S.C. 1435(a)(12), 1440(a))
Sec. 303.123 Procedural safeguards.
Each system must include procedural safeguards that meet the
requirements of subpart E of this part.
(Authority: 20 U.S.C. 1435(a)(13), 1439)
Sec. 303.124 Data collection.
(a) Each statewide system must include a system for compiling and
reporting timely and accurate data that meets the requirements of
paragraph (b) of this section and Sec. Sec. 303.700 through 303.702
and 303.720 through 303.724.
(b) The data system required in paragraph (a) of this section must
include a description of the process that the State uses, or will use,
to compile data on infants or toddlers with disabilities receiving
early intervention services under this part, including a description of
the State's sampling methods, if sampling is used, for reporting the
data required by the Secretary under sections 616 and 618 of the Act
and Sec. Sec. 303.700 through 303.707 and 303.720 through 303.724.
(Authority: 20 U.S.C. 1416, 1418(a)-(c), 1435(a)(14), 1442)
[[Page 26506]]
Sec. 303.125 State interagency coordinating council.
Each system must include a State Interagency Coordinating Council
(Council) that meets the requirements of subpart G of this part.
(Authority: 20 U.S.C. 1435(a)(15))
Sec. 303.126 Early intervention services in natural environments.
Each system must include policies and procedures to ensure,
consistent with Sec. Sec. 303.13(a)(8) (early intervention services),
303.26 (natural environments), and 303.344(d)(1)(ii) (content of an
IFSP), that early intervention services for infants and toddlers with
disabilities are provided--
(a) To the maximum extent appropriate, in natural environments; and
(b) In settings other than the natural environment that are most
appropriate, as determined by the parent and the IFSP team, only when
early intervention services cannot be provided satisfactorily in a
natural environment.
(Authority: 20 U.S.C. 1435(a)(16))
Subpart C--State Application and Assurances
General
Sec. 303.200 State application and assurances.
Each application must contain--
(a) The specific State application requirements (including
certifications, descriptions, methods, and policies and procedures)
required in Sec. Sec. 303.201 through 303.212; and
(b) The assurances required in Sec. Sec. 303.220 through 303.227.
(Authority: 20 U.S.C. 1437)
Application Requirements
Sec. 303.201 Designation of lead agency.
Each application must include a designation of the lead agency in
the State that will be responsible for the administration of funds
provided under this part.
(Authority: 20 U.S.C. 1437(a)(1))
Sec. 303.202 Certification regarding financial responsibility.
Each application must include a certification to the Secretary that
the arrangements to establish financial responsibility for the
provision of Part C services among appropriate public agencies under
Sec. 303.511 and the lead agency's contracts with EIS providers
regarding financial responsibility for the provision of Part C services
both meet the requirements in subpart F of this part (Sec. Sec.
303.500 through 303.521) and are current as of the date of submission
of the certification.
(Authority: 20 U.S.C. 1437(a)(2))
Sec. 303.203 Statewide system and description of services.
Each application must include--
(a) A description of services to be provided under this part to
infants and toddlers with disabilities and their families through the
State's system;
(b) The State's policies and procedures regarding the
identification and coordination of all available resources within the
State from Federal, State, local, and private sources (including any
system of payments regarding the use of public insurance or benefits,
private insurance, or family costs or fees) as required under subpart F
of this part; and
(c) The State's rigorous definition of developmental delay as
required under Sec. Sec. 303.10 and 303.111.
(Authority: 20 U.S.C. 1432(3), 1432(4)(B), 1432(4)(C), 1435(a)(1),
1435(a)(10)(B), 1437(a)(3)(A) and (B), 1440)
Sec. 303.204 Application's definition of at-risk infants and toddlers
and description of services.
If the State provides services under this part to at-risk infants
and toddlers through the statewide system, the application must
include--
(a) The State's definition of at-risk infants and toddlers with
disabilities who are eligible in the State for services under Part C of
the Act (consistent with Sec. Sec. 303.5 and 303.21(b)); and
(b) A description of the early intervention services provided under
this part to at-risk infants and toddlers with disabilities who meet
the State's definition described in paragraph (a) of this section.
(Authority: 20 U.S.C. 1437(a)(4))
Sec. 303.205 Description of use of funds.
(a) General. Each State application must include a description of
the uses for funds under this part for the fiscal year or years covered
by the application. The description must be presented separately for
the lead agency and the Council, and include the information required
in paragraphs (b) through (e) of this section.
(b) State administration funds including administrative positions.
For lead agencies other than State educational agencies (SEAs), each
application must include the total--
(1) Amount of funds retained by the lead agency for administration
purposes, including the amount in paragraph (b)(2) of this section; and
(2) Number of full-time equivalent administrative positions to be
used to implement Part C of the Act, and the total amount of salaries
(including benefits) for those positions.
(c) Maintenance and implementation activities. Each application
must include a description of the nature and scope of each major
activity to be carried out under this part, consistent with Sec.
303.501, and the approximate amount of funds to be spent for each
activity.
(d) Direct services. Each application must include a description of
any direct services that the State expects to provide to infants and
toddlers with disabilities and their families with funds under this
part, consistent with Sec. 303.501, and the approximate amount of
funds under this part to be used for the provision of each direct
service.
(e) Activities by other agencies. If other agencies are to receive
funds under this part, the application must include--
(1) The name of each agency expected to receive funds;
(2) The approximate amount of funds each agency will receive; and
(3) A summary of the purposes for which the funds will be used.
(Authority: 20 U.S.C. 1435(a)(10)(B), 1435(a)(10)(F), 1437(a)(3),
1437(a)(5))
Sec. 303.206 Referral policies for specific children.
Each application must include the State's policies and procedures
that require the referral for early intervention services under this
part of specific children under the age of three, as described in Sec.
303.302(b).
(Authority: 20 U.S.C. 1437(a)(6))
Sec. 303.207 Availability of resources.
Each application must include a description of the procedure used
by the State to ensure that resources are made available under this
part for all geographic areas within the State.
(Authority: 20 U.S.C. 1437(a)(7))
Sec. 303.208 Public participation policies and procedures.
(a) Each application must include a description of the State's
policies and procedures that ensure that--
(1) Before adopting any new or revised policies and procedures
needed to comply with Part C of the Act (including any amendments to
those policies and procedures), the lead agency holds public hearings,
gives adequate notice of the hearings, and provides an opportunity for
comment by the general public, including individuals with disabilities
and parents of infants and toddlers with disabilities;
(2) Before submitting a State application under this part
(including
[[Page 26507]]
any policies, procedures, descriptions, methods, certifications and
assurances required in subparts B and C of this part), the State--
(i) Complies with the public participation requirements in
paragraph (a) of this section; and
(ii) Publishes each proposed application, policy or procedure to--
(A) Ensure circulation throughout the State, at least 60 days
before the date on which the application, policy or procedure is
submitted to the Secretary; and
(B) Provide an opportunity for public comment for at least 30 days
during that 60-day period.
(b) Before implementing any policies, procedures, and methods that
are subject to the public participation requirements in this section
and required to be submitted to the Secretary under subparts B and C of
this part, the State must have approval by the Secretary.
(Authority: 20 U.S.C. 1437(a)(8))
Sec. 303.209 Transition to preschool and other programs.
(a) Application requirements. Each State must include the following
in its application:
(1) A description of the policies and procedures it will use to
ensure a smooth transition for toddlers with disabilities and their
families--
(i) From receiving early intervention services under this part
(including toddlers receiving services under Sec. 303.211) to
preschool, school, or other appropriate services; or
(ii) To exit the program.
(2) A description of how the State will meet each of the
requirements in paragraphs (b) through (d) of this section.
(3)(i)(A) If the lead agency is not the SEA, an interagency
agreement between the lead agency and the SEA; or
(B) If the lead agency is the SEA, an intra-agency agreement
between the program within that agency that administers Part C of the
Act and the program within the agency that administers section 619 of
the Act.
(ii) To ensure a seamless transition between services under this
part and under Part B of the Act, an interagency agreement under
paragraph (a)(3)(i)(A) of this section or an intra-agency agreement
under paragraph (a)(3)(i)(B) of this section must include provisions
for how the lead agency and the SEA will meet the requirements of Sec.
303.209(b) through (d) and Sec. 303.344(h), and 34 CFR 300.124,
300.321(f) and 300.323(b).
(4) Any policy the lead agency has adopted under Sec. 303.401(e).
(b) Family involvement and notification of the LEA. The State lead
agency must ensure that--
(1) Each family of a toddler with a disability who is served under
this part will be included in the transition plan required under this
section and Sec. 303.344(h);
(2)(i) Except as provided in paragraph (b)(3) of this section, at
least nine months before the third birthday of the toddler with a
disability, the lead agency will notify the LEA for the area in which
the toddler resides--or, if appropriate, the SEA--that the toddler on
his or her third birthday will reach the age of eligibility for
preschool or school services under Part B of the Act, as determined in
accordance with State law; or
(ii) Except as provided in paragraph (b)(3) of this section, if the
lead agency determines within the nine-month period before the third
birthday of a toddler with a disability the initial eligibility of the
toddler for early intervention services under Part C of the Act, the
lead agency, as soon as possible after determining the child's
eligibility, will notify the LEA for the area in which the toddler with
a disability resides--or, if appropriate, the SEA--that the toddler on
his or her third birthday will reach the age of eligibility for
preschool or school services under Part B of the Act, as determined in
accordance with State law; and
(3) If the State has adopted, under Sec. 303.401(e), a policy
permitting a parent to object to disclosure of personally identifiable
information, the notification requirement in paragraphs (b)(2)(i) and
(ii) of this section must be consistent with this policy.
(c) Conference to discuss services. The State lead agency must
ensure the following:
(1) If a toddler with a disability may be eligible for preschool
services or other services under Part B of the Act, the lead agency,
with the approval of the family of the toddler, will convene a
conference among the lead agency, the family, and the LEA not fewer
than 90 days--and, at the discretion of all of the parties, not more
than nine months--before the toddler's third birthday to discuss any
services the toddler may receive under Part B of the Act.
(2) If a toddler with a disability may not be eligible for
preschool or other services under Part B of the Act, the lead agency,
with the approval of the family of the toddler, will make reasonable
efforts to convene a conference among the lead agency, the family, and
providers of other appropriate services for this toddler to discuss
appropriate services that the toddler may receive.
(d) Program options and transition plan. The State lead agency must
ensure that--
(1) It will review the program options for the toddler with a
disability for the period from the toddler's third birthday through the
remainder of the school year;
(2) It will establish a transition plan not fewer than 90 days--
and, at the discretion of all of the parties, not more than nine
months--before the toddler's third birthday; and
(3) The plan will include, consistent with Sec. 303.344(h), as
appropriate--
(i) Steps for the toddler with a disability and his or her family
to exit from the program; and
(ii) Any transition services needed by that toddler and his or her
family.
(Authority: 20 U.S.C. 1437(a)(9))
Sec. 303.210 Coordination with Head Start and Early Head Start, early
education, and child care programs.
Each application must contain a description of State efforts to
promote collaboration among Head Start and Early Head Start programs
under the Head Start Act (42 U.S.C. 9801 et seq.), early education and
child care programs, and services under this part.
(Authority: 20 U.S.C. 1437(a)(10))
Sec. 303.211 State option to make services under this part available
to children ages three and older.
(a) General. (1) Subject to paragraphs (a)(2) and (b) of this
section, a State may elect to include in its application for a grant
under this part a State policy, developed and implemented jointly by
the lead agency and the SEA, under which parents of children with
disabilities who are eligible for services under section 619 of the Act
and who previously received early intervention services under this
part, may choose the continuation of early intervention services under
this part for their children ages three and older until the children
enter, or are eligible under State law to enter, kindergarten or
elementary school.
(2) A State that adopts the policy described in paragraph (a)(1) of
this section may determine whether it applies to children with
disabilities ages three through five inclusive, or to one of the
following three subsets of that age range:
(i) From age three until the beginning of the school year following
the child's third birthday.
(ii) From age three until the beginning of the school year
following the child's fourth birthday.
[[Page 26508]]
(iii) From age three until the beginning of the school year
following the child's fifth birthday.
(b) Requirements. If a State's application for a grant under this
part includes the State policy described in paragraph (a) of this
section, the system must ensure the following:
(1) Parents of children with disabilities served pursuant to this
section are provided annual notice that contains--
(i) A description of the rights of the parents to elect to receive
services pursuant to this section or under Part B of the Act; and
(ii) An explanation of the differences between services provided
pursuant to this section and services provided under Part B of the Act,
including--
(A) The types of services and the locations at which the services
are provided;
(B) The procedural safeguards that apply; and
(C) Possible costs (including the costs or fees to be charged to
families as described in Sec. Sec. 303.520 and 303.521), if any, to
parents of children eligible under this part.
(2) Consistent with Sec. 303.344(d), services provided pursuant to
this section will include an educational component that promotes school
readiness and incorporates preliteracy, language, and numeracy skills.
(3) The State policy will not affect the right of any child served
pursuant to this section to receive FAPE (as that term is defined at
Sec. 303.15) under Part B of the Act instead of early intervention
services under Part C of the Act.
(4) Subject to Sec. 303.430(e), all early intervention services
outlined in the child's IFSP under Sec. 303.344 will be continued
while any eligibility determination is being made for services under
this section.
(5) Informed consent must be obtained from the parents of any child
to be served under this section, where practicable, before the child
reaches three years of age, as to whether the parents intend to choose
the continuation of early intervention services pursuant to this
section for their child.
(6) The transition timeline requirements under Sec. 303.209(c)(1)
and (d)(2) do not apply with respect to a child who is receiving
services under this section until not fewer than 90 days--and, at the
discretion of all of the parties, not more than nine months--before the
time the child is expected to no longer receive services under this
section.
(7) In States that adopt the option to make services under this
part available to children ages three and older, there will be a
referral to the Part C system, dependent upon parental consent, of a
child under the age of three who directly experiences a substantiated
case of trauma due to exposure to family violence (as defined in
section 320 of the Family Violence Prevention and Services Act, 42
U.S.C. 10401 et seq.).
(c) Reporting requirement. If a State includes in its application a
State policy described in paragraph (a) of this section, the State must
submit to the Secretary, in the State's report under Sec. 303.124, the
number and percentage of children with disabilities who are eligible
for services under section 619 of the Act but whose parents choose for
their children to continue to receive early intervention services under
this part.
(d) Available funds. The State policy described in paragraph (a) of
this section must describe the funds (including an identification as
Federal, State, or local funds) that will be used to ensure that the
option described in paragraph (a) of this section is available to
eligible children and families who provide the consent described in
paragraph (b)(5) of this section, including fees (if any) to be charged
to families as described in Sec. Sec. 303.520 and 303.521.
(e) Rules of construction. (1) If a statewide system includes a
State policy described in paragraph (a) of this section, a State that
provides services in accordance with this section to a child with a
disability who is eligible for services under section 619 of the Act
will not be required to provide the child FAPE under Part B of the Act
for the period of time in which the child is receiving services under
this part.
(2) Nothing in this section may be construed to require a provider
of services under this part to provide a child served under this part
with FAPE.
(Authority: 20 U.S.C. 1435(c), 1437(a)(11))
Sec. 303.212 Additional information and assurances.
Each application must contain other information and assurances as
the Secretary may reasonably require.
(Authority: 20 U.S.C. 1437(a)(11))
Assurances
Sec. 303.220 Assurances satisfactory to the Secretary.
Each application must contain assurances satisfactory to the
Secretary that the State has met the requirements of Sec. Sec. 303.221
through 303.227.
(Authority: 20 U.S.C. 1437(b))
Sec. 303.221 Expenditure of funds.
The State must ensure that Federal funds made available to the
State under section 643 of the Act will be expended in accordance with
the provisions of this part, including Sec. 303.501.
(Authority: 20 U.S.C. 1437(b)(1))
Sec. 303.222 Payor of last resort.
The State must ensure that it will comply with the requirements in
Sec. Sec. 303.501 through 303.521 in subpart F of this part.
(Authority: 20 U.S.C. 1437(b)(2))
Sec. 303.223 Control of funds and property.
The State must ensure that--
(a) The control of funds provided under this part, and title to
property acquired with those funds, will be in a public agency for the
uses and purposes provided in this part; and
(b) A public agency will administer the funds and property.
(Authority: 20 U.S.C. 1437(b)(3))
Sec. 303.224 Reports and records.
The State must ensure that it will--
(a) Make reports in the form and containing the information that
the Secretary may require; and
(b) Keep records and afford access to those records as the
Secretary may find necessary to ensure compliance with the requirements
of this part, the correctness and verification of reports, and the
proper disbursement of funds provided under this part.
(Authority: 20 U.S.C. 1437(b)(4))
Sec. 303.225 Prohibition against commingling and supplanting;
indirect costs.
(a) Prohibition against commingling. (1) The State must ensure that
funds made available under this part will not be commingled with State
funds.
(2) Commingle means depositing or recording funds in a general
account without the ability to identify each specific source of funds
for any expenditure.
(b) Requirement to supplement and not supplant State funds. (1)(i)
The State must ensure that Federal funds made available under this part
will be used to supplement and increase the level of State and local
funds expended for infants and toddlers with disabilities and their
families and in no case to supplant those State and local funds.
(ii) To meet the requirement in paragraph (b)(1)(i) of this
section, the total amount of State and local funds budgeted for
expenditures in the current fiscal year for early intervention services
for infants and toddlers with disabilities and their families must be
at least equal to the total amount of State and local
[[Page 26509]]
funds actually expended for early intervention services for these
infants and toddlers and their families in the most recent preceding
fiscal year for which the information is available.
(2) The State may reduce the level of expenditures under Part C of
the Act below the level of those expenditures for the preceding fiscal
year if the reduction is attributable to any of the following:
(i) A decrease in the number of infants and toddlers who are
eligible to receive early intervention services under this part.
(ii) The termination of costly expenditures for long-term
purchases, such as the acquisition of equipment and the construction of
facilities.
(iii) The voluntary departure, by retirement or otherwise, or
departure for just cause, of personnel under Part C of the Act.
(iv) The termination of the obligation of the lead agency,
consistent with this part, to make available early intervention
services to a particular infant or toddler with a disability that are
exceptionally costly, as determined by the lead agency, because the
infant or toddler--
(A) Has left the State;
(B) Has reached the age at which the obligation of the lead agency
to make available early intervention services has terminated; or
(C) No longer needs early intervention services.
(c) Requirement regarding indirect costs. (1) Except as provided in
paragraph (c)(2) of this section, a lead agency under this part may not
charge indirect costs to its Part C grant.
(2) If approved by the lead agency's cognizant Federal agency or by
the Secretary, the lead agency must charge indirect costs through
either--
(i) A restricted indirect cost rate that meets the requirements in
34 CFR 76.560 through 76.569; or
(ii) A cost allocation plan that meets the non-supplanting
requirements in paragraph (b) of this section and 34 CFR part 76 of
EDGAR.
(3) In charging indirect costs under paragraphs (c)(2)(i) and (ii)
of this section, the lead agency may not charge rent, occupancy, or
space maintenance costs directly to the Part C grant, unless those
costs are specifically approved in advance by the Secretary.
(Authority: 20 U.S.C. 1437(b)(5))
Sec. 303.226 Fiscal control.
The State must ensure that fiscal control and fund accounting
procedures will be adopted as may be necessary to ensure proper
disbursement of, and accounting for, Federal funds paid under this
part.
(Authority: 20 U.S.C. 1437(b)(6))
Sec. 303.227 Traditionally underserved groups.
The State must ensure that policies and practices have been adopted
to ensure--
(a) That traditionally underserved groups, including minority, low-
income, homeless, and rural families and children with disabilities who
are wards of the State, are meaningfully involved in the planning and
implementation of all the requirements of this part; and
(b) That these families have access to culturally competent
services within their local geographical areas.
(Authority: 20 U.S.C. 1437(b)(7))
Subsequent Applications and Modifications, Eligibility Determinations,
and Standard of Disapproval
Sec. 303.228 Subsequent State application and modifications of
application.
(a) Subsequent State application. If a State has on file with the
Secretary a policy, procedure, method, or assurance that demonstrates
that the State meets an application requirement in this part, including
any policy, procedure, or method filed under this part (as in effect
before the date of enactment of the Act, December 3, 2004), the
Secretary considers the State to have met that requirement for purposes
of receiving a grant under this part.
(b) Modification of application. An application submitted by a
State that meets the requirements of this part remains in effect until
the State submits to the Secretary such modifications as the State
determines necessary. The provisions of this section apply to a
modification of an application to the same extent and in the same
manner as this paragraph applies to the original application.
(c) Modifications required by the Secretary. The Secretary may
require a State to modify its application under this part to the extent
necessary to ensure the State's compliance with this part if--
(1) An amendment is made to the Act, or to a Federal regulation
issued under the Act;
(2) A new interpretation of the Act is made by a Federal court or
the State's highest court; or
(3) An official finding of noncompliance with Federal law or
regulations is made with respect to the State.
(Authority: 20 U.S.C. 1437(d)-(f))
Sec. 303.229 Determination by the Secretary that a State is eligible.
If the Secretary determines that a State is eligible to receive a
grant under Part C of the Act, the Secretary notifies the State of that
determination.
(Authority: 20 U.S.C. 1437)
Sec. 303.230 Standard for disapproval of an application.
The Secretary does not disapprove an application under this part
unless the Secretary determines, after notice and opportunity for a
hearing in accordance with the procedures in Sec. Sec. 303.231 through
303.236, that the application fails to comply with the requirements of
this part.
(Authority: 20 U.S.C. 1437(c))
Department Procedures
Sec. 303.231 Notice and hearing before determining that a State is
not eligible.
(a) General. (1) The Secretary does not make a final determination
that a State is not eligible to receive a grant under Part C of the Act
until providing the State--
(i) With reasonable notice; and
(ii) With an opportunity for a hearing.
(2) In implementing paragraph (a)(1)(i) of this section, the
Secretary sends a written notice to the lead agency by certified mail
with a return receipt requested.
(b) Content of notice. In the written notice described in paragraph
(a)(2) of this section, the Secretary--
(1) States the basis on which the Secretary proposes to make a
final determination that the State is not eligible;
(2) May describe possible options for resolving the issues;
(3) Advises the lead agency that it may request a hearing and that
the request for a hearing must be made not later than 30 days after it
receives the notice of the proposed final determination that the State
is not eligible; and
(4) Provides the lead agency with information about the hearing
procedures that will be followed.
(Authority: 20 U.S.C. 1437(c))
Sec. 303.232 Hearing Official or Panel.
(a) If the lead agency requests a hearing, the Secretary designates
one or more individuals, either from the Department or elsewhere, not
responsible for or connected with the administration of this program,
to conduct a hearing.
(b) If more than one individual is designated, the Secretary
designates one of those individuals as the Chief Hearing Official of
the Hearing Panel. If
[[Page 26510]]
one individual is designated, that individual is the Hearing Official.
(Authority: 20 U.S.C. 1437(c))
Sec. 303.233 Hearing procedures.
(a) As used in Sec. Sec. 303.231 through 303.236 the term party or
parties means any of the following:
(1) A lead agency that requests a hearing regarding the proposed
disapproval of the State's eligibility under this part.
(2) The Department official who administers the program of
financial assistance under this part.
(3) A person, group, or agency with an interest in and having
relevant information about the case that has applied for and been
granted leave to intervene by the Hearing Official or Hearing Panel.
(b) Within 15 days after receiving a request for a hearing, the
Secretary designates a Hearing Official or Hearing Panel and notifies
the parties.
(c) The Hearing Official or Hearing Panel may regulate the course
of proceedings and the conduct of the parties during the proceedings.
The Hearing Official or Panel takes all steps necessary to conduct a
fair and impartial proceeding, to avoid delay, and to maintain order,
including the following:
(1) The Hearing Official or Hearing Panel may hold conferences or
other types of appropriate proceedings to clarify, simplify, or define
the issues or to consider other matters that may aid in the disposition
of the case.
(2) The Hearing Official or Hearing Panel may schedule a prehearing
conference with the Hearing Official or Hearing Panel and the parties.
(3) Any party may request the Hearing Official or Hearing Panel to
schedule a prehearing or other conference. The Hearing Official or
Hearing Panel decides whether a conference is necessary and notifies
all parties.
(4) At a prehearing or other conference, the Hearing Official or
Hearing Panel and the parties may consider subjects such as--
(i) Narrowing and clarifying issues;
(ii) Assisting the parties in reaching agreements and stipulations;
(iii) Clarifying the positions of the parties;
(iv) Determining whether an evidentiary hearing or oral argument
should be held; and
(v) Setting dates for--
(A) The exchange of written documents;
(B) The receipt of comments from the parties on the need for oral
argument or an evidentiary hearing;
(C) Further proceedings before the Hearing Official or Hearing
Panel (including an evidentiary hearing or oral argument, if either is
scheduled);
(D) Requesting the names of witnesses each party wishes to present
at an evidentiary hearing and estimation of time for each presentation;
and
(E) Completion of the review and the initial decision of the
Hearing Official or Hearing Panel.
(5) A prehearing or other conference held under paragraph (c)(4) of
this section may be conducted by telephone conference call.
(6) At a prehearing or other conference, the parties must be
prepared to discuss the subjects listed in paragraph (c)(4) of this
section.
(7) Following a prehearing or other conference the Hearing Official
or Hearing Panel may issue a written statement describing the issues
raised, the action taken, and the stipulations and agreements reached
by the parties.
(d) The Hearing Official or Hearing Panel may require parties to
state their positions and to provide all or part of their evidence in
writing.
(e) The Hearing Official or Hearing Panel may require parties to
present testimony through affidavits and to conduct cross-examination
through interrogatories.
(f) The Hearing Official or Hearing Panel may direct the parties to
exchange relevant documents or information and lists of witnesses, and
to send copies to the Hearing Official or Hearing Panel.
(g) The Hearing Official or Hearing Panel may receive, rule on,
exclude, or limit evidence at any stage of the proceedings.
(h) The Hearing Official or Hearing Panel may rule on motions and
other issues at any stage of the proceedings.
(i) The Hearing Official or Hearing Panel may examine witnesses.
(j) The Hearing Official or Hearing Panel may set reasonable time
limits for submission of written documents.
(k) The Hearing Official or Hearing Panel may refuse to consider
documents or other submissions if they are not submitted in a timely
manner unless good cause is shown.
(l) The Hearing Official or Hearing Panel may interpret applicable
statutes and regulations but may not waive them or rule on their
validity.
(m)(1) The parties must present their positions through briefs and
the submission of other documents and may request an oral argument or
evidentiary hearing. The Hearing Official or Hearing Panel must
determine whether an oral argument or an evidentiary hearing is needed
to clarify the positions of the parties.
(2) The Hearing Official or Hearing Panel gives each party an
opportunity to be represented by counsel.
(n) If the Hearing Official or Hearing Panel determines that an
evidentiary hearing would materially assist the resolution of the
matter, the Hearing Official or Hearing Panel gives each party, in
addition to the opportunity to be represented by counsel--
(1) An opportunity to present witnesses on the party's behalf; and
(2) An opportunity to cross-examine witnesses either orally or with
written questions.
(o) The Hearing Official or Hearing Panel accepts any evidence that
it finds is relevant and material to the proceedings and is not unduly
repetitious.
(p)(1) The Hearing Official or Hearing Panel--
(i) Arranges for the preparation of a transcript of each hearing;
(ii) Retains the original transcript as part of the record of the
hearing; and
(iii) Provides one copy of the transcript to each party.
(2) Additional copies of the transcript are available on request
and with payment of the reproduction fee.
(q) Each party must file with the Hearing Official or Hearing Panel
all written motions, briefs, and other documents and must at the same
time provide a copy to the other parties to the proceedings.
(Authority: 20 U.S.C. 1437(c))
Sec. 303.234 Initial decision; final decision.
(a) The Hearing Official or Hearing Panel prepares an initial
written decision that addresses each of the points in the notice sent
by the Secretary to the lead agency under Sec. 303.231, including any
amendments to or further clarification of the issues under Sec.
303.233(c).
(b) The initial decision of a Hearing Panel is made by a majority
of Hearing Panel members.
(c) The Hearing Official or Hearing Panel mails, by certified mail
with return receipt requested, a copy of the initial decision to each
party (or to the party's counsel) and to the Secretary, with a notice
stating that each party has an opportunity to submit written comments
regarding the decision to the Secretary.
(d) Each party may file comments and recommendations on the initial
decision with the Hearing Official or Hearing Panel within 15 days of
the date the party receives the Panel's decision.
(e) The Hearing Official or Hearing Panel sends a copy of a party's
initial comments and recommendations to the other parties by certified
mail with return receipt requested. Each party may file responsive
comments and recommendations with the Hearing
[[Page 26511]]
Official or Hearing Panel within seven days of the date the party
receives the initial comments and recommendations.
(f) The Hearing Official or Hearing Panel forwards the parties'
initial and responsive comments on the initial decision to the
Secretary who reviews the initial decision and issues a final decision.
(g) The initial decision of the Hearing Official or Hearing Panel
becomes the final decision of the Secretary unless, within 25 days
after the end of the time for receipt of written comments, the
Secretary informs the Hearing Official or Hearing Panel and the parties
to a hearing in writing that the decision is being further reviewed for
possible modification.
(h) The Secretary rejects or modifies the initial decision of the
Hearing Official or Hearing Panel if the Secretary finds that it is
clearly erroneous.
(i) The Secretary conducts the review based on the initial
decision, the written record, the transcript of the Hearing Official's
or Hearing Panel's proceedings, and written comments.
(j) The Secretary may remand the matter to the Hearing Official or
Hearing Panel for further proceedings.
(k) Unless the Secretary remands the matter as provided in
paragraph (j) of this section, the Secretary issues the final decision,
with any necessary modifications, within 30 days after notifying the
Hearing Official or Hearing Panel that the initial decision is being
further reviewed.
(Authority: 20 U.S.C. 1437(c))
Sec. 303.235 Filing requirements.
(a) Any written submission by a party under Sec. Sec. 303.230
through 303.236 must be filed with the Secretary by hand-delivery, by
mail, or by facsimile transmission. The Secretary discourages the use
of facsimile transmission for documents longer than five pages.
(b) The filing date under paragraph (a) of this section is the date
the document is--
(1) Hand-delivered;
(2) Mailed; or
(3) Sent by facsimile transmission.
(c) A party filing by facsimile transmission is responsible for
confirming that a complete and legible copy of the document was
received by the Department.
(d) If a document is filed by facsimile transmission, the
Secretary, the Hearing Official, or the Panel, as applicable, may
require the filing of a follow-up hard copy by hand-delivery or by mail
within a reasonable period of time.
(e) If agreed upon by the parties, service of a document may be
made upon the other party by facsimile transmission.
(Authority: 20 U.S.C. 1437(c))
Sec. 303.236 Judicial review.
If a State is dissatisfied with the Secretary's final decision with
respect to the eligibility of the State under Part C of the Act, the
State may, not later than 60 days after notice of that decision, file
with the United States Court of Appeals for the circuit in which that
State is located a petition for review of that decision. A copy of the
petition must be transmitted by the clerk of the court to the
Secretary. The Secretary then files in the court the record of the
proceedings upon which the Secretary's action was based, as provided in
28 U.S.C. 2112.
(Authority: 20 U.S.C. 1437(c))
Subpart D--Child Find, Evaluations and Assessments, and
Individualized Family Service Plans
Identification--Public Awareness, Child Find, and Referral
Sec. 303.300 Public awareness program--information for parents.
(a) Preparation and dissemination. In accordance with Sec.
303.116, each system must include a public awareness program that
provides for--
(1)(i) The lead agency's preparation of information on the
availability of early intervention services under this part, and other
services, as described in paragraph (b) of this section; and
(ii) Dissemination to all primary referral sources (especially
hospitals and physicians) of the information to be given to parents of
infants and toddlers, including especially parents with premature
infants, or infants with other physical risk factors associated with
learning or developmental complications; and
(2) Procedures for assisting the primary referral sources described
in Sec. 303.302(c) in disseminating the information to parents of
infants and toddlers with disabilities.
(b) Information to be provided. The information required in
paragraph (a) of this section must include--
(1) A description of the availability of early intervention
services under this part;
(2) A description of the child find system and how to refer a child
for an evaluation or early intervention services;
(3) The central directory; and
(4) For parents with toddlers with disabilities who are nearing
transition age (e.g. starting at least nine months prior to the child's
third birthday), a description of the availability of services under
section 619 of the Act.
(Authority: 20 U.S.C. 1435(a)(6), 1437(a)(9))
Sec. 303.301 Comprehensive child find system.
(a) General. Each system must include a comprehensive child find
system that--
(1) Is consistent with Part B of the Act (see 34 CFR Sec.
300.115);
(2) Includes a system for making referrals to public agencies under
this part that--
(i) Includes timelines; and
(ii) Provides for participation by the primary referral sources
described in Sec. 303.302(c);
(3) Ensures rigorous standards for appropriately identifying
infants and toddlers with disabilities for services under this part
that will reduce the need for future services; and
(4) Meets the requirements in paragraphs (b) and (c) of this
section and Sec. Sec. 303.302 and 303.303.
(b) Scope of child find. The lead agency, as part of the child find
system, must ensure that--
(1) All infants and toddlers with disabilities in the State who are
eligible for services under this part are identified, located, and
evaluated, including--
(i) Indian infants and toddlers with disabilities residing on a
reservation geographically located in the State (including
coordination, as necessary, with tribes, tribal organization, and
consortia to identify the information provided by them to the lead
agency under Sec. 303.731(e)(1)); and
(ii) Infants and toddlers with disabilities who are homeless, in
foster care, and wards of the State; and
(2) An effective method is developed and implemented to determine
which children are in need of early intervention services, and which
children are not in need of those services.
(c) Coordination. (1) The lead agency, with the assistance of the
Council, as defined in Sec. 303.8, must ensure that the child find
system under this part--
(i) Is coordinated with all other major efforts to locate and
identify children conducted by other State agencies responsible for
administering the various education, health, and social service
programs relevant to this part, including Indian tribes that receive
payments under this part, and other Indian tribes, as appropriate; and
(ii) Is coordinated with the efforts of the--(A) Program authorized
under Part B of the Act;
(B) Maternal and Child Health program under Title V of the Social
Security Act (42 U.S.C. 701(a));
(C) Early Periodic Screening, Diagnosis and Treatment (EPSDT) under
[[Page 26512]]
Title XIX of the Social Security Act (42 U.S.C. 1396(a)(43) and
1396(a)(4)(B));
(D) Programs under the Developmental Disabilities Assistance and
Bill of Rights Act of 2000 (42 U.S.C. 15001 et seq.);
(E) Head Start Act (including Early Head Start programs under
section 645A of the Head Start Act) (42 U.S.C. 9801 et seq.);
(F) Supplemental Security Income program under Title XVI of the
Social Security Act (42 U.S.C. 1381);
(G) Child protection programs, including programs administered by,
and services provided through, the foster care agency and the State
agency responsible for administering the Child Abuse Prevention and
Treatment Act (CAPTA) (42 U.S.C. 5106(a));
(H) Child care programs in the State; and
(I) The programs that provide services under the Family Violence
Prevention and Services Act (42 U.S.C. 10401 et seq.) (for States
electing to make available services under this part to children with
disabilities after the age of three in accordance with section
635(c)(2)(G) of the Act and Sec. 303.211.
(2) The lead agency, with the advice and assistance of the Council,
must take steps to ensure that--
(i) There will not be unnecessary duplication of effort by the
various agencies involved in the State's child find system under this
part; and
(ii) The State will make use of the resources available through
each early intervention service provider in the State to implement the
child find system in an effective manner.
(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 1434(1), 1435(a)(2),
1435(a)(5), 1435(c)(2)(G), 1437(a)(6), 1437(a)(10) and 1441)
Sec. 303.302 Referral procedures.
(a) General. (1) The child find system described in Sec. 303.301
must include procedures for use by primary referral sources for
referring a child to the Part C system for--
(i) Evaluation and assessment, in accordance with Sec. 303.320;
and
(ii) As appropriate, the provision of early intervention services,
in accordance with Sec. Sec. 303.342 through 303.345.
(2) The procedures required in paragraph (a)(1) of this section
must--
(i) Provide for referring a child as soon as possible after the
child has been identified; and
(ii) Include procedures that meet the requirements in paragraphs
(b) and (c) of this section.
(b) Referral of specific at-risk children. The procedures required
in paragraph (a) of this section must provide for requiring the
referral of a child under the age of three who--
(1) Is involved in a substantiated case of abuse or neglect; or
(2) Is identified as affected by illegal substance abuse, or
withdrawal symptoms resulting from prenatal drug exposure.
(c) Primary referral sources. As used in this subpart, primary
referral sources include--
(1) Hospitals, including prenatal and postnatal care facilities;
(2) Physicians;
(3) Parents, including parents of infants and toddlers;
(4) Day care programs;
(5) LEAs and schools;
(6) Public health facilities;
(7) Other social service agencies;
(8) Other clinics and health care providers;
(9) Public agencies and staff in the child welfare system including
child protective service and foster care;
(10) Homeless family shelters; and
(11) Domestic violence shelters and agencies (for States electing
to make services available under this part to children after the age of
three in accordance with section 635(c)(2)(G) of the Act and Sec.
303.211).
(Authority: 20 U.S.C. 1412(a)(3)(A), 1431, 1434(1), 1435(a)(2),
1435(a)(5), 1435(a)(6), 1435(c)(2)(G), 1437(a)(6), 1437(a)(10),
1441)
Sec. 303.303 Screening procedures.
(a) General. (1) The child find system described in Sec. 303.301
may include procedures for the screening of children who have been
referred to Part C, when appropriate, to determine whether they are
suspected of having a disability under this part. If the State lead
agency elects to adopt screening procedures to determine if a child is
suspected of having a disability, those procedures must meet the
requirements of this section.
(2) If the screening carried out under paragraph (a) of this
section or other available information indicates that the child is
suspected of having a disability, the child must be evaluated under
Sec. 303.320.
(3) If the lead agency believes, based on screening and other
available information, that the child is not suspected of having a
disability, the lead agency must ensure that notice is provided to the
parent under Sec. 303.421.
(4) If, under paragraph (a)(3) of this section, the lead agency
determines that the child is not suspected of having a disability, but
the parent of the child requests an evaluation, the child must be
evaluated under Sec. 303.320.
(b) Definition of screening procedures. Screening procedures--
(1) Means activities under paragraph (a)(1) of this section that
are carried out by a public agency, early intervention service
provider, or designated primary referral source (except for parents) to
identify infants and toddlers suspected of having a disability and in
need of early intervention services at the earliest possible age; and
(2) Includes the administration of appropriate instruments by
qualified personnel that can assist in making the identification
described in paragraph (a)(1) of this section.
(c) Condition for evaluation or services. For every child who is
referred to the Part C program or screened in accordance with paragraph
(a) of this section, the lead agency is not required to--
(1) Provide an evaluation and assessment of the child under Sec.
303.320 unless the child is suspected of having a disability or the
parent requests an evaluation under paragraph (a)(4) of this section;
or
(2) Provide early intervention services under this part unless a
determination is made, after the evaluation and assessment conducted
under Sec. 303.320, that the child meets the definition of infant or
toddler with a disability under Sec. 303.21.
(Authority: 20 U.S.C. 1434(1), 1435(a)(2), 1435(a)(5) and (a)(6),
1435(c)(2)(G), 1437(a)(6), 1439(a)(6))
Evaluation and Assessment of the Child and Family and Assessment of
Service Needs
Sec. 303.320 Evaluation and assessment of the child and family and
assessment of service needs.
(a) General. (1) Each lead agency must ensure, for each child under
the age of three who is referred for evaluation or services under this
part and suspected of having a disability, the performance of--
(i) A timely, comprehensive, multidisciplinary evaluation of the
child;
(ii) An assessment of the child;
(iii) An assessment of the family as described in paragraph (c) of
this section, if the parent and family concur; and
(iv) An assessment of service needs, as described in paragraph (d)
of this section, if the child is determined to meet the definition of
an infant or toddler with a disability in Sec. 303.21.
(2)(i) An evaluation is the method used to review the assessments
of the child and the family to determine a child's initial and
continuing eligibility under this part, consistent with the definition
of infant or toddler with a disability in Sec. 303.21.
[[Page 26513]]
(ii) In conducting an evaluation, no single procedure may be used
as the sole criterion for determining a child's eligibility under this
part.
(iii) A child's medical and other records may be used to establish
eligibility (without conducting an assessment of the child and the
family) if those records contain information required under this
section regarding the child's level of functioning in the developmental
areas identified in Sec. 303.21(a)(1).
(3) All evaluations and assessments of the child and family must be
conducted by qualified personnel, in a nondiscriminatory manner, in the
child's or family's native language (as appropriate), and selected and
administered so as not to be racially or culturally discriminatory.
(b) Procedures for assessment of the child--(1) Assessment of the
child means reviewing available pertinent records that relate to the
child's current health status and medical history and conducting
personal observation and assessment of the child in order to identify
the child's unique strengths and needs, including an identification of
the child's level of functioning in each of the following developmental
areas: cognitive development; physical development, including vision
and hearing; communication development; social or emotional
development; and adaptive development based on objective criteria,
which must include informed clinical opinion.
(2) Qualified personnel must use their informed clinical opinion to
assess a child's present level of functioning in each of the
developmental areas identified in Sec. 303.21(a)(1) and the lead
agency must ensure that informed clinical opinion may be used by
qualified personnel to establish a child's eligibility under this part
even when other instruments do not establish eligibility, but informed
clinical opinion may not negate the results of assessment instruments
used under paragraph (b)(1) of this section to establish eligibility.
(c) Procedures for assessment of the family. Assessment of the
family means identification of the family's resources, priorities, and
concerns, and the supports and services necessary to enhance the
family's capacity to meet the developmental needs of the family's
infant or toddler with a disability, as determined not just through the
use of an assessment tool, but through a voluntary personal interview
with the family.
(d) Assessment of service needs. If the child meets the definition
of infant or toddler with a disability in Sec. 303.21, an assessment
of the service needs of the infant or toddler with a disability and the
child's family must include a review of the evaluation (including the
assessment of the child and family) and available pertinent records and
conducting personal observation and assessment of the infant or toddler
with a disability in order to identify the early intervention services
appropriate to meet the child's unique needs in each of the
developmental areas identified in paragraph (b)(1) of this section.
(e) Timelines. (1)(i) Except as provided in paragraph (e)(2) of
this section, the evaluation of the child (including any assessments of
the child and family) and assessment of service needs, as well as the
initial IFSP meeting, must be completed within 45 days from the date
the lead agency obtains parental consent to conduct an evaluation of
the child.
(ii) Lead agencies must ensure that parental consent to conduct an
evaluation under Sec. 303.420(a) is obtained as soon as possible once
a child is referred for evaluation under this part.
(2) The lead agency must develop procedures to ensure that in the
event of exceptional circumstances that make it impossible to complete
the evaluation (including any assessments of the child and family) and
assessment of service needs within 45 days (e.g., if a child is ill)
from receiving parental consent, public agencies will--
(i) Document those circumstances; and
(ii) Develop and implement an interim IFSP, to the extent
appropriate and consistent with Sec. 303.345.
(Authority: 20 U.S.C. 1435(a)(3), 1435(a)(5), 1436(a)(1)-(2),
1436(c), 1436(d)(1)-(2))
Individualized Family Service Plans (IFSPs)
Sec. 303.340 Individualized family service plans--general.
Each lead agency must ensure, for each infant or toddler with a
disability, the development, review, and implementation of an
individualized family service plan or IFSP that--
(a) Is consistent with the definition of that term in Sec. 303.20;
and
(b) Meets the requirements in Sec. Sec. 303.342 through 303.345 of
this subpart.
(Authority: 20 U.S.C. 1435(a)(4), 1436)
Sec. 303.341 [Reserved]
Sec. 303.342 Procedures for IFSP development, review, and evaluation.
(a) Meeting to develop initial IFSP-timelines. For a child who has
been evaluated for the first time and determined to be eligible under
this part, a meeting to develop the initial IFSP must be conducted
within the 45-day time period in Sec. 303.320(e).
(b) Periodic review. (1) A review of the IFSP for a child and the
child's family must be conducted every six months, or more frequently
if conditions warrant, or if the family requests such a review. The
purpose of the periodic review is to determine--
(i) The degree to which progress toward achieving the outcomes is
being made; and
(ii) Whether modification or revision of the outcomes or services
is necessary.
(2) The review may be carried out by a meeting or by another means
that is acceptable to the parents and other participants.
(c) Annual meeting to evaluate the IFSP. A meeting must be
conducted on at least an annual basis to evaluate the IFSP for a child
and the child's family, and, as appropriate, to revise its provisions.
The results of any current evaluations conducted under Sec. 303.320,
and other information available from the assessment of service needs
must be used in determining what services are needed and will be
provided.
(d) Accessibility and convenience of meetings. (1) IFSP meetings
must be conducted--
(i) In settings and at times that are convenient to families; and
(ii) In the native language of the family or other mode of
communication used by the family, unless it is clearly not feasible to
do so.
(2) Meeting arrangements must be made with, and written notice
provided to, the family and other participants early enough before the
meeting date to ensure that they will be able to attend.
(e) Parental consent. The contents of the IFSP must be fully
explained to the parents and informed consent must be obtained prior to
the provision of early intervention services described in the IFSP. The
early intervention services for which parental consent is obtained must
be provided.
(Authority: 20 U.S.C. 1436)
Sec. 303.343 IFSP team meetings and periodic reviews.
(a) Initial and annual IFSP team meetings. (1) Each initial meeting
and each annual IFSP team meeting to evaluate the IFSP must include the
following participants:
(i) The parent or parents of the child.
(ii) Other family members, as requested by the parent, if feasible
to do so.
(iii) An advocate or person outside of the family, if the parent
requests that the person participate.
[[Page 26514]]
(iv) The service coordinator designated by the public agency to be
responsible for implementation of the IFSP.
(v) A person or persons directly involved in conducting the
evaluations and assessments in Sec. 303.320.
(vi) As appropriate, persons who will be providing services under
this part to the child or family.
(2) If a person listed in paragraph (a)(1)(v) of this section is
unable to attend a meeting, arrangements must be made for the person's
involvement through other means, including one of the following:
(i) Participating in a telephone conference call.
(ii) Having a knowledgeable authorized representative attend the
meeting.
(iii) Making pertinent records available at the meeting.
(b) Periodic review. Each periodic review must provide for the
participation of persons in paragraphs (a)(1)(i) through (a)(1)(iv) of
this section. If conditions warrant, provisions must be made for the
participation of other representatives identified in paragraph (a) of
this section.
(Authority: 20 U.S.C. 1436(b))
Sec. 303.344 Content of an IFSP.
(a) Information about the child's status. The IFSP must include a
statement of the child's present levels of physical development
(including vision, hearing, and health status), cognitive development,
communication development, social or emotional development, and
adaptive development based on the information from the child's
evaluation and assessments conducted under Sec. 303.320.
(b) Family information. With the concurrence of the family, the
IFSP must include a statement of the family's resources, priorities,
and concerns related to enhancing the development of the child as
identified through the assessment of the family under Sec. 303.320(c).
(c) Results or outcomes. The IFSP must include a statement of the
measurable results or measurable outcomes expected to be achieved for
the child (including pre-literacy and language skills, as
developmentally appropriate for the child) and family, and the
criteria, procedures, and timeliness used to determine--
(1) The degree to which progress toward achieving the results or
outcomes is being made; and
(2) Whether modifications or revisions of the results, outcomes or
services are necessary.
(d) Early intervention services. (1) The IFSP must include a
statement of the specific early intervention services, based on peer-
reviewed research (to the extent practicable), that are necessary to
meet the unique needs of the child and the family to achieve the
results or outcomes identified in paragraph (c) of this section,
including--
(i) The length, duration, frequency, intensity, and method of
delivering the services;
(ii)(A) The natural environment setting in which early intervention
services will be provided (subject to paragraph (d)(1)(ii)(B) of this
section), including, if applicable, a justification of the extent, if
any, to which an early intervention service will not be provided in a
natural environment.
(B) The determination of the appropriate setting for providing
early intervention services to an infant or toddler with a disability,
including any justification for not providing a particular early
intervention service in the natural environment for that child and
service, must be--
(1) Made by the IFSP team (which includes the parent and other team
members);
(2) Consistent with the provisions in Sec. Sec. 303.13(a)(8),
303.25, and 303.126; and
(3) Based on the child's outcomes that are identified by the IFSP
team in paragraph (c)).
(iii) The location of the services; and
(iv) The payment arrangements, if any.
(2) As used in paragraph (d)(1)(i) of this section--
(i) Frequency and intensity mean the number of days or sessions
that a service will be provided, and whether the service is provided on
an individual or group basis;
(ii) Method means how a service is provided;
(iii) Length means the length of time the service is provided
during each session of that service (such as an hour or other specified
time period); and
(iv) Duration means projecting when a given service will no longer
be provided (such as when the child is expected to achieve the results
or outcomes in his or her IFSP).
(3) As used in paragraph (d)(1)(iii) of this section, location
means the actual place or places where a service will be provided.
(4) For children who are at least three years of age, the IFSP must
include an educational component that promotes school readiness and
incorporates pre-literacy, language, and numeracy skills.
(e) Other services. To the extent appropriate, the IFSP also must--
(1) Identify medical and other services that the child or family
needs or is receiving through other sources, but that are neither
required nor funded under this part; and
(2) If those services are not currently being provided, include a
description of the steps the service coordinator or family may take to
assist the child and family in securing those other services.
(f) Dates and duration of services. The IFSP must include--
(1) The projected date for the initiation of each service in
paragraph (d)(1) of this section, which date must be as soon as
possible after the IFSP meetings described in Sec. 303.342; and
(2) The anticipated duration of each service.
(g) Service coordinator. (1) The IFSP must include the name of the
service coordinator from the profession most immediately relevant to
the child's or family's needs (or who is otherwise qualified to carry
out all applicable responsibilities under this part), who will be
responsible for the implementation of the early intervention services
identified in a child's IFSP, including transition services, and
coordination with other agencies and persons.
(2) In meeting the requirements in paragraph (g)(1) of this
section, the term ``profession'' includes ``service coordination.''
(h) Transition from Part C services. (1) The IFSP must include the
steps to be taken to support the transition of the child, in accordance
with Sec. 303.209, to--
(i) Preschool services under Part B of the Act, to the extent that
those services are appropriate;
(ii) Elementary school or preschool services (for children
participating under Sec. 303.211);
(iii) Early education, Head Start and Early Head Start or child
care programs; or
(iv) Other appropriate services.
(2) The steps required in paragraph (h)(1) of this section must
include--
(i) Discussions with, and training of, parents, as appropriate,
regarding future placements and other matters related to the child's
transition;
(ii) Procedures to prepare the child for changes in service
delivery, including steps to help the child adjust to, and function in,
a new setting;
(iii) The transmission of child find information about the child to
the LEA or other relevant agency, in accordance with Sec. 303.209(b)
and, with parental consent, transmission of additional information to
the LEA to ensure continuity of services, including evaluation and
assessment information
[[Page 26515]]
required in Sec. 303.320 and copies of IFSPs that have been developed
and implemented in accordance with Sec. Sec. 303.340 through 303.345;
and
(iv) Identification of transition services and other activities
that the IFSP team determines are necessary to support the transition
of the child.
(Authority: 20 U.S.C. 1435(a)(10)(B), 1435(a)(16), 1436(d),
1437(a)(9)-(10), 1440)
Sec. 303.345 Provision of services before evaluations and assessments
are completed.
Early intervention services for an eligible child and the child's
family may commence before the completion of the evaluation (including
the assessment of the child and family) and assessment of service needs
in Sec. 303.320, if the following conditions are met:
(a) Parental consent is obtained.
(b) An interim IFSP is developed that includes--
(1) The name of the service coordinator who will be responsible,
consistent with Sec. 303.344(g), for implementation of the interim
IFSP and coordination with other agencies and persons; and
(2) The early intervention services that have been determined to be
needed immediately by the child and the child's family.
(c) Evaluations and assessments are completed within the 45-day
timeline in Sec. 303.320(e).
(Authority: 20 U.S.C. 1436(c))
Sec. 303.346 Responsibility and accountability.
Each agency or person who has a direct role in the provision of
early intervention services is responsible for making a good faith
effort to assist each eligible child in achieving the outcomes in the
child's IFSP. However, Part C of the Act does not require that any
agency or person be held accountable if an eligible child does not
achieve the growth projected in the child's IFSP.
(Authority: 20 U.S.C. 1436)
Subpart E--Procedural Safeguards
General
Sec. 303.400 General responsibility of lead agency for procedural
safeguards.
Each lead agency must--
(a) Establish or adopt the procedural safeguards that meet the
requirements of this subpart, including the provisions on
confidentiality, parental consent and notice, surrogate parents, and
dispute resolution; and
(b) Ensure the effective implementation of the safeguards by each
EIS provider in the State that is involved in the provision of early
intervention services under this part.
(Authority: 20 U.S.C. 1439(a))
Confidentiality
Sec. 303.401 Confidentiality and opportunity to examine records.
(a) General. Each State must ensure that the parent of a child
referred under this part is afforded the right to confidentiality of
personally identifiable information, including the right to written
notice of, and written consent to, the exchange of that information
among agencies, consistent with Federal and State laws.
(b) Confidentiality procedures. Each State must have procedures in
effect to ensure that--
(1) EIS providers comply with the Part C confidentiality procedures
in Sec. Sec. 303.402 through 303.417 (which contain confidentiality
provisions that are consistent with, but broader than those under, the
Family Educational Rights and Privacy Act (FERPA) in 20 U.S.C. 1232g
and its regulations in 34 CFR part 99, and include additional Part C
requirements); and
(2) The parents of infants or toddlers who are referred to, or
receive services under, this part are afforded the opportunity to
inspect and review all Part C records about the child and the child's
family that are collected, maintained, or used under this part,
including records related to evaluations and assessments, screening,
eligibility determinations, development and implementation of IFSPs,
provision of early intervention services, individual complaints
involving the child, or any part of the child's early intervention
record under this part.
(c) Applicability and timeframe of procedures. The confidentiality
procedures described in paragraph (b) of this section apply to the
personally identifiable information of a child and the child's family
that--
(1) Is contained in early intervention records collected, used, or
maintained under this part by the lead agency or an EIS provider; and
(2) Applies from the point in time when the child is referred for
early intervention services under this part until the later of when the
lead agency or EIS provider is no longer required to maintain or
maintains that information under applicable Federal and State laws.
(d) Disclosure of information. (1) Subject to paragraph (e) of this
section and Sec. 303.209(b)(3), the lead agency must disclose to the
LEA where the child resides or to the SEA, in accordance with Sec.
303.209(b)(2), the following limited information that would otherwise
be determined to be personally identifiable information under the Act:
(i) A child's name.
(ii) A child's date of birth.
(iii) Parent contact information (including parents' names,
addresses, and telephone numbers).
(2) The information described in paragraph (d)(1) of this section
is needed to enable the lead agency, as well as LEAs and SEAs under
Part B of the Act, to identify all children potentially eligible for
services under this part and Part B of the Act.
(e) Option to inform a parent about intended disclosure. (1) A
State lead agency, through its policies and procedures, may require
public agencies and EIS providers, prior to making the limited
disclosure described in paragraph (d)(1) of this section, to inform the
parent of the intended disclosure and allow the parent a specified time
period to object to the disclosure in writing.
(2) If a parent (in a State that has adopted the policy described
in paragraph (e)(1) of this section) objects during the time period
provided by the State, the lead agency is not permitted to make such a
disclosure under paragraph (d) of this section and Sec. 303.209(b)(2).
(Authority: 20 U.S.C. 1412(a)(9), 1417(c), 1435(a)(5), 1439(a)(6),
1437(a)(9), 1439(a)(2), 1439(a)(4), 1442)
Additional Confidentiality Requirements
Sec. 303.402 Confidentiality.
The Secretary takes appropriate action, in accordance with section
444 of GEPA, to ensure the protection of the confidentiality of any
personally identifiable data, information, and records collected,
maintained or used by the Secretary and by lead agencies and EIS
providers pursuant to Part C of the Act, and consistent with Sec. Sec.
303.403 through 303.417.
(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1442)
Sec. 303.403 Definitions.
The following definitions apply to Sec. Sec. 303.402 through
303.417:
(a) Destruction means physical destruction of the record or
ensuring that personal identifiers are removed from a record so that
the record is no longer personally identifiable under Sec. 303.29.
(b) Education records includes all early intervention records
required to be collected, maintained, or used under Part C of the Act
and the regulations in this part.
[[Page 26516]]
(c) Participating agency means any individual, agency, or
institution that collects, maintains, or uses personally identifiable
information and includes the lead agency and EIS providers.
(Authority: 20 U.S.C. 1221e-3, 1417(c), 1435(a)(5), 1439(a)(2),
1442)
Sec. 303.404 Notice to parents.
The lead agency must give notice that is adequate to fully inform
parents about the requirements of Sec. 303.402, including--
(a) A description of the children on whom personally identifiable
information is maintained, the types of information sought, the methods
the State intends to use in gathering the information (including the
sources from whom information is gathered), and the uses to be made of
the information;
(b) A summary of the policies and procedures that participating
agencies must follow regarding storage, disclosure to third parties,
retention, and destruction of personally identifiable information; and
(c) A description of all of the rights of parents and children
regarding this information, including the rights under the Part C
confidentiality provisions in Sec. Sec. 303.401 through 303.417.
(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1442)
Sec. 303.405 Access rights.
(a) Each participating agency must permit parents to inspect and
review any education records relating to their children that are
collected, maintained, or used by the agency under this part. The
agency must comply with a request without unnecessary delay and before
any meeting regarding an IFSP, or any hearing pursuant to Sec. Sec.
303.430(d) and 303.435 through 303.439, and in no case more than 20
days after the request has been made.
(b) The right to inspect and review education records under this
section includes--
(1) The right to a response from the participating agency to
reasonable requests for explanations and interpretations of the
records;
(2) The right to request that the participating agency provide
copies of the records containing the information if failure to provide
those copies would effectively prevent the parent from exercising the
right to inspect and review the records; and
(3) The right to have a representative of the parent inspect and
review the records.
(c) An agency shall presume that the parent has authority to
inspect and review records relating to his or her child unless the
agency has been provided documentation that the parent does not have
the authority under applicable State laws governing such matters as
custody, foster care, guardianship, separation, and divorce.
(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)
Sec. 303.406 Record of access.
Each participating agency must keep a record of parties obtaining
access to education records collected, maintained, or used under Part C
of the Act (except access by parents and authorized representatives and
employees of the participating agency), including the name of the
party, the date access was given, and the purpose for which the party
is authorized to use the records.
(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4),
1442)
Sec. 303.407 Records on more than one child.
If any education record includes information on more than one
child, the parents of those children have the right to inspect and
review only the information relating to their child or to be informed
of that specific information.
(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)
Sec. 303.408 List of types and locations of information.
Each participating agency must provide parents on request a list of
the types and locations of education records collected, maintained, or
used by the agency.
(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)
Sec. 303.409 Fees.
(a) Each participating agency may charge a fee for copies of
records that are made for parents under this part if the fee does not
effectively prevent the parents from exercising their right to inspect
and review those records.
(b) A participating agency may not charge a fee to search for or to
retrieve information under this part.
(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)
Sec. 303.410 Amendment of records at parent's request.
(a) A parent who believes that information in the education records
collected, maintained, or used under this part is inaccurate,
misleading, or violates the privacy or other rights of the child may
request that the participating agency that maintains the information
amend the information.
(b) The participating agency must decide whether to amend the
information in accordance with the request within a reasonable period
of time of receipt of the request.
(c) If the participating agency decides to refuse to amend the
information in accordance with the request, it must inform the parent
of the refusal and advise the parent of the right to a hearing under
Sec. 303.411.
(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)
Sec. 303.411 Opportunity for a hearing.
The participating agency must, on request, provide a parent with an
opportunity for a hearing under Sec. 303.430(d) to challenge
information in education records to ensure that it is not inaccurate,
misleading, or otherwise in violation of the privacy or other rights of
the child.
(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)
Sec. 303.412 Result of hearing.
(a) If, as a result of the hearing, the participating agency
decides that the information is inaccurate, misleading or in violation
of the privacy or other rights of the child, it must amend the
information accordingly and so inform the parent in writing.
(b) If, as a result of the hearing, the agency decides that the
information is not inaccurate, misleading, or in violation of the
privacy or other rights of the child, it must inform the parent of the
right to place in the records it maintains on the child a statement
commenting on the information or setting forth any reasons for
disagreeing with the decision of the agency.
(c) Any explanation placed in the records of the child under this
section must--
(1) Be maintained by the agency as part of the records of the child
as long as the record or contested portion is maintained by the agency;
and
(2) If the records of the child or the contested portion is
disclosed by the agency to any party, the explanation must also be
disclosed to the party.
(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)
Sec. 303.413 Hearing procedures.
A hearing held under Sec. 303.411 must be conducted according to
the procedures under 34 CFR 99.22.
(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442)
Sec. 303.414 Consent prior to disclosure or use.
(a) Prior parental consent must be obtained before personally
identifiable information is--
(1) Disclosed to anyone other than authorized representatives,
officials, or
[[Page 26517]]
employees of participating agencies collecting, maintaining, or using
the information under this part, subject to paragraph (b) of this
section; or
(2) Used for any purpose other than meeting a requirement of this
part.
(b) A lead agency or participating agency may not disclose
personally identifiable information, as defined in Sec. 303.29, to any
party except the lead agency and EIS providers that are part of the
State's Part C system without parental consent unless authorized to do
so under paragraphs (c) and (d) of this section, Sec. 303.401, or the
exceptions enumerated in 34 CFR part 99, which are adopted to apply to
Part C through this reference.
(c) The lead agency must provide policies and procedures to be used
when a parent refuses to provide consent under this section (such as a
meeting to explain to parents how their failure to consent affects the
ability of their child to receive services under this part), provided
that those procedures do not override a parent's right to refuse
consent under Sec. 303.420.
(d) The lead agency or participating agency may disclose to a
protection and advocacy (P&A) system authorized under section 143 of
the Developmental Disabilities Assistance and Bill of Rights Act of
2000 (DD Act)--
(1) Contact information (including name, address, and telephone
number) for the parent or legal guardian or representative of an infant
or toddler with a disability when the P&A system requests this
information under section 143(a)(2)(I)(iii)(III) of the DD Act when
requested by the P&A system; or
(2) Personally identifiable information in the early intervention
records of an infant or toddler with a disability in order to provide
the P&A system access to the early intervention records when the P&A
system requests access under either section 143(a)(2)(I)(iii) or
section 143(a)(2)(J) of the DD Act.
(Authority: 20 U.S.C. 1417(c), 1439(a)(2), 1439(a)(4), 1442 and 42
U.S.C. 15043(a)(2)(I), 15043(a)(2)(J))
Sec. 303.415 Safeguards.
(a) Each participating agency must protect the confidentiality of
personally identifiable information at collection, maintenance, use,
storage, disclosure, and destruction stages.
(b) One official at each participating agency must assume
responsibility for ensuring the confidentiality of any personally
identifiable information.
(c) All persons collecting or using personally identifiable
information must receive training or instruction regarding the State's
policies and procedures under Sec. Sec. 303.401 through 303.417 and 34
CFR part 99.
(d) Each participating agency must maintain, for public inspection,
a current listing of the names and positions of those employees within
the agency who may have access to personally identifiable information.
(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4),
1442)
Sec. 303.416 Destruction of information.
(a) The public agency must inform parents when personally
identifiable information collected, maintained, or used under this part
is no longer needed to provide services to the child under Part C,
GEPA, 20 U.S.C. 1230 through 1234i, and EDGAR, 34 CFR parts 76 and 80.
(b) Subject to paragraph (a) of this section, the information must
be destroyed at the request of the parents. However, a permanent record
of a child's name, date of birth, parent contact information (including
address, and phone number), names of service coordinator(s) and EIS
provider(s), and exit data (including year and age upon exit, and any
programs entered into upon exiting) may be maintained without time
limitation.
(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4),
1442)
Sec. 303.417 Enforcement.
The lead agency must have in effect policies and procedures that
the State uses to ensure that its policies and procedures are followed
and that the requirements of the Act and the regulations in this part
are met including the sanctions and right to file a State complaint
under Sec. Sec. 303.432 through 303.434 for failure to comply with
Sec. Sec. 303.401 through 303.417.
(Authority: 20 U.S.C. 1417(c), 1435(a)(5), 1439(a)(2), 1439(a)(4),
1442)
Parental Consent and Notice
Sec. 303.420 Parental consent and ability to decline service.
(a) The lead agency must ensure parental consent is obtained
before--
(1) Administering screening procedures that are used either to
determine:
(i) Whether a child is suspected of having a disability; or
(ii) A child's eligibility under this part;
(2) An evaluation and assessment of a child is conducted under
Sec. 303.320;
(3) Early intervention services are provided to the child under
this part;
(4) Public or private insurance is used consistent with Sec.
303.520; and
(5) Exchange of personally identifiable information among agencies
consistent with Sec. 303.401.
(b) If the parent does not give consent, the lead agency must make
reasonable efforts to ensure that the parent--
(1) Is fully aware of the nature of the evaluation and assessment
or the services that would be available; and
(2) Understands that the child will not be able to receive the
evaluation and assessment or services unless consent is given.
(c)(1) Subject to paragraph (c)(2) of this section, the lead agency
may, but is not required to, use the due process hearing procedures
under this part to challenge the parent's refusal to consent to an
evaluation and assessment of the child for early intervention services.
(2) The lead agency may not use the procedures described in
paragraph (c)(1) of this section to challenge the parent's refusal to
consent to the provision of an early intervention service or the use of
insurance.
(d) The parents of an infant or toddler with a disability--
(1) Determine whether they, their infant or toddler with a
disability, or other family members will accept or decline any early
intervention service under this part at any time, in accordance with
State law; and
(2) May decline a service after first accepting it, without
jeopardizing other early intervention services under this part.
(Authority: 20 U.S.C. 1436(e), 1439(a)(3))
Sec. 303.421 Prior written notice and procedural safeguards notice.
(a) General. Prior written notice must be given to the parents of a
child a reasonable time before the lead agency or an EIS provider
proposes, or refuses, to initiate or change the identification,
evaluation, or placement of the child, or the provision of early
intervention services to the infant or toddler with a disability and
that infant's or toddler's family.
(b) Content of notice. The notice must be in sufficient detail to
inform the parents about--
(1) The action that is being proposed or refused;
(2) The reasons for taking the action; and
(3) All procedural safeguards that are available under this
subpart, including a description of mediation in Sec. 303.431, how to
file a State complaint in Sec. Sec. 303.432 through 303.434 and a due
process complaint in the provisions adopted under Sec. 303.430(d), and
any timelines under those procedures.
(c) Native language. (1) The notice must be--
[[Page 26518]]
(i) Written in language understandable to the general public; and
(ii) Provided in the native language, as defined in Sec. 303.25,
of the parent or other mode of communication used by the parent, unless
it is clearly not feasible to do so.
(2) If the native language or other mode of communication of the
parent is not a written language, the public agency or designated EIS
provider shall take steps to ensure that--
(i) The notice is translated orally or by other means to the parent
in the parent's native language or other mode of communication;
(ii) The parent understands the notice; and
(iii) There is written evidence that the requirements of this
paragraph have been met.
(Authority: 20 U.S.C. 1439(a)(6)-(7))
Surrogate Parents
Sec. 303.422 Surrogate parents.
(a) General. Each lead agency or other public agency must ensure
that the rights of a child are protected when--
(1) No parent (as defined in Sec. 303.27) can be identified;
(2) The lead agency, or other public agency, after reasonable
efforts, cannot locate a parent; or
(3) The child is a ward of the State under the laws of that State.
(b) Duty of lead agency and other public agencies.
(1) The duty of the lead agency, or other public agency under
paragraph (a) of this section, includes the assignment of an individual
to act as a surrogate for the parents. This assignment process must
include a method for--
(i) Determining whether a child needs a surrogate parent; and
(ii) Assigning a surrogate parent to the child.
(2) In implementing the provisions under this section for children
who are wards of the State or placed in foster care, the lead agency
must consult with the public agency with whom care of the child has
been assigned.
(c) Criteria for selection of surrogate parents. (1) The lead
agency or other public agency may select a surrogate parent in any way
permitted under State law.
(2) Public agencies must ensure that a person selected as a
surrogate parent--
(i) Is not an employee of the lead agency or any other public
agency or EIS provider that provides early intervention services or
other services to the child or any family member of the child;
(ii) Has no personal or professional interest that conflicts with
the interest of the child he or she represents; and
(iii) Has knowledge and skills that ensure adequate representation
of the child.
(d) Non-employee requirement; compensation. A person who is
otherwise qualified to be a surrogate parent under paragraph (c) of
this section is not an employee of the agency solely because he or she
is paid by the agency to serve as a surrogate parent.
(e) Surrogate parent responsibilities. The surrogate parent has the
same rights as a parent for all purposes under this part.
(Authority: 20 U.S.C. 1439(a)(5))
Dispute Resolution Options
Sec. 303.430 State dispute resolution options.
(a) General. Each statewide system must include written procedures
for the timely administrative resolution of complaints through
mediation, State complaint procedures, and due process hearing
procedures, described in paragraphs (b) through (e) of this section.
(b) Mediation. Each lead agency must make available to parties to
disputes involving any matter under this part the opportunity for
mediation that meets the requirements of Sec. 303.431.
(c) State complaint procedures. Each lead agency must adopt written
State complaint procedures to resolve any State complaints filed by any
party regarding any violation of this part that meet the requirements
in Sec. Sec. 303.432 through 303.434.
(d) Due process hearing procedures. In addition to adopting the
procedures in paragraphs (b) and (c) of this section, the lead agency
must adopt written due process hearing procedures to resolve complaints
with respect to a particular child regarding any matter identified in
Sec. 303.421(a), by either adopting--
(1) The Part C due process hearing procedures under section 639 of
the Act that--
(i) Meet the requirements in Sec. Sec. 303.435 through 303.438;
and
(ii) Provide a means of filing a due process complaint regarding
any matter listed in Sec. 303.421(a); or
(2) The Part B due process hearing procedures under section 615 of
the Act and Sec. Sec. 303.440 through 303.449 (with either a 30-day or
45-day timeline for resolving due process complaints, as provided in
Sec. 303.440(c)).
(e) Status of a child during the pendency of a due process
complaint. (1) During the pendency of any proceeding involving a due
process complaint under paragraph (d) of this section, unless the lead
agency and parents of an infant or toddler with a disability otherwise
agree, the child must continue to receive the appropriate early
intervention services in the setting identified in the IFSP that is
consented to by the parents.
(2) If the due process complaint under paragraph (d) of this
section involves an application for initial services under Part C of
the Act, the child must receive those services that are not in dispute.
(3)(i) Except as provided in paragraph (e)(3)(ii) of this section,
if a child turns three and the child's eligibility under Sec. 303.211
has not yet been determined, then the child must continue to receive
Part C services under Sec. 303.211(b)(4).
(ii) Once a child turns three and has been determined ineligible
for services under Part B and Sec. 303.211, the provisions of
paragraph (e)(1) of this section do not apply and the lead agency is
not required to provide Part C services to that child during the
pendency of any due process complaint proceeding challenging the
determination of ineligibility.
(Authority: 20 U.S.C. 1415(e), 1415(f)(1)(A), 1415(f)(3)(A)-(D),
1439(a)(8), 1439(b))
Mediation
Sec. 303.431 Mediation.
(a) General. Each lead agency must ensure that procedures are
established and implemented to allow parties to disputes involving any
matter under this part, including matters arising prior to the filing
of a due process complaint, to resolve disputes through a mediation
process.
(b) Requirements. The procedures must meet the following
requirements:
(1) The procedures must ensure that the mediation process--
(i) Is voluntary on the part of the parties;
(ii) Is not used to deny or delay a parent's right to a hearing on
the parent's due process complaint, or to deny any other rights
afforded under Part C of the Act; and
(iii) Is conducted by a qualified and impartial mediator who is
trained in effective mediation techniques.
(2)(i) The State must maintain a list of individuals who are
qualified mediators and knowledgeable in laws and regulations relating
to the provision of early intervention services.
(ii) The lead agency must select mediators on a random, rotational,
or other impartial basis.
(3) The State must bear the cost of the mediation process,
including the costs of meetings described in paragraph (d) of this
section.
(4) Each session in the mediation process must be scheduled in a
timely
[[Page 26519]]
manner and must be held in a location that is convenient to the parties
to the dispute.
(5) If the parties resolve a dispute through the mediation process,
the parties must execute a legally binding agreement that sets forth
that resolution and that--
(i) States that all discussions that occurred during the mediation
process will remain confidential and may not be used as evidence in any
subsequent due process hearing or civil proceeding; and
(ii) Is signed by both the parent and a representative of the
agency who has the authority to bind such agency.
(6) A written, signed mediation agreement under this paragraph is
enforceable in any State court of competent jurisdiction or in a
district court of the United States.
(7) Discussions that occur during the mediation process must be
confidential and may not be used as evidence in any subsequent due
process hearing or civil proceeding of any Federal court or State court
of a State receiving assistance under this part.
(c) Impartiality of mediator. (1) An individual who serves as a
mediator under this part--
(i) May not be an employee of the lead agency or an EIS provider
that is involved in the provision of early intervention or other
services to the child; and
(ii) Must not have a personal or professional interest that
conflicts with the person's objectivity.
(2) A person who otherwise qualifies as a mediator is not an
employee of a lead agency or an early intervention provider solely
because he or she is paid by the agency or provider to serve as a
mediator.
(d) Meeting to encourage mediation. A lead agency may establish
procedures to offer to parents and EIS providers that choose not to use
the mediation process, an opportunity to meet, at a time and location
convenient to the parents, with a disinterested party--
(1) Who is under contract with an appropriate alternative dispute
resolution entity, or a parent training and information center or
community parent resource center in the State established under section
671 or 672 of the Act; and
(2) Who would explain the benefits of, and encourage the use of,
the mediation process to the parents.
(Authority: 20 U.S.C. 1415(e), 1439(a)(8))
State Complaint Procedures
Sec. 303.432 Adoption of State complaint procedures.
(a) General. Each lead agency must adopt written procedures for--
(1) Resolving any complaint, including a complaint filed by an
organization or individual from another State, that meets the
requirements of Sec. 303.434 by providing for the filing of a
complaint with the lead agency; and
(2) Widely disseminating to parents and other interested
individuals, including parent training and information centers,
protection and advocacy agencies and other appropriate entities, the
State procedures under Sec. Sec. 303.432 through 303.434.
(b) Remedies for denial of appropriate services. In resolving a
complaint in which the lead agency has found a failure to provide
appropriate services, a lead agency pursuant to its general supervisory
authority under Part C of the Act, must address--
(1) The failure to provide appropriate services, including
corrective action appropriate to address the needs of the infant or
toddler with a disability and the infant's or toddler's family who is
the subject of the complaint; and
(2) Appropriate future provision of services for all infants and
toddlers with disabilities and their families.
(Authority: 20 U.S.C. 1439(a)(1))
Sec. 303.433 Minimum State complaint procedures.
(a) Time limit; minimum procedures. Each lead agency must include
in its complaint procedures a time limit of 60 days after a complaint
is filed under Sec. 303.434 to--
(1) Carry out an independent on-site investigation, if the lead
agency determines that an investigation is necessary;
(2) Give the complainant the opportunity to submit additional
information, either orally or in writing, about the allegations in the
complaint;
(3) Provide the lead agency, public agency, or EIS provider with
the opportunity to respond to the complaint, including, at a minimum--
(i) At the discretion of the lead agency, a proposal to resolve the
complaint; and
(ii) An opportunity for a parent who has filed a complaint and the
lead agency, public agency, or EIS provider to voluntarily engage in
mediation, consistent with Sec. Sec. 303.430(b) and 303.431;
(4) Review all relevant information and make an independent
determination as to whether the lead agency, public agency, or EIS
provider is violating a requirement of Part C of the Act or of this
part; and
(5) Issue a written decision to the complainant that addresses each
allegation in the complaint and contains--
(i) Findings of fact and conclusions; and
(ii) The reasons for the lead agency's final decision.
(b) Time extension; final decision; implementation. The lead
agency's procedures described in paragraph (a) of this section also
must--
(1) Permit an extension of the time limit under paragraph (a) of
this section only if--
(i) Exceptional circumstances exist with respect to a particular
complaint; or
(ii) The parent (or individual or organization, if mediation is
available to the individual or organization under State procedures) and
the lead agency or EIS provider involved agree to extend the time to
engage in mediation pursuant to paragraph (a)(3)(ii) of this section;
and
(2) Include procedures for effective implementation of the lead
agency's final decision, if needed, including--
(i) Technical assistance activities;
(ii) Negotiations; and
(iii) Corrective actions to achieve compliance.
(c) Complaints filed under this section and due process hearings
under Sec. 303.430(d). (1) If a written complaint is received that is
also the subject of a due process hearing under Sec. 303.430(d), or
contains multiple issues of which one or more are part of that hearing,
the State must set aside any part of the complaint that is being
addressed in the due process hearing until the conclusion of the
hearing. However, any issue in the complaint that is not a part of the
due process hearing must be resolved using the time limit and
procedures described in paragraphs (a) and (b) of this section.
(2) If an issue raised in a complaint filed under this section has
previously been decided in a due process hearing involving the same
parties--
(i) The due process hearing decision is binding on that issue; and
(ii) The lead agency must inform the complainant to that effect.
(3) A complaint alleging a lead agency or EIS provider's failure to
implement a due process hearing decision must be resolved by the lead
agency.
(Authority: 20 U.S.C. 1439(a)(1))
Sec. 303.434 Filing a complaint.
(a) An organization or individual may file a signed written
complaint under the procedures described in Sec. Sec. 303.432 and
303.433.
(b) The complaint must include--
(1) A statement that the lead agency, public agency, or EIS
provider has
[[Page 26520]]
violated a requirement of Part C of the Act or of this part;
(2) The facts on which the statement is based;
(3) The signature and contact information for the complainant; and
(4) If alleging violations with respect to a specific child--
(i) The name and address of the residence of the child;
(ii) The name of the EIS provider serving the child;
(iii) A description of the nature of the problem of the child,
including facts relating to the problem; and
(iv) A proposed resolution of the problem to the extent known and
available to the party at the time the complaint is filed.
(c) The complaint must allege a violation that occurred not more
than one year prior to the date that the complaint is received in
accordance with Sec. 303.432.
(d) The party filing the complaint must forward a copy of the
complaint to the public agency or EIS provider serving the child at the
same time the party files the complaint with the lead agency.
(Authority: 20 U.S.C. 1439(a)(1))
States That Choose To Adopt the Part C Due Process Procedures Under
Section 639 of the Act
Sec. 303.435 Appointment of an impartial due process hearing officer.
(a) Qualifications and duties. Whenever a due process complaint is
received under Sec. 303.430(d), a due process hearing officer must be
appointed to implement the complaint resolution process in this
subpart. The person must--
(1) Have knowledge about the provisions of this part and the needs
of, and early intervention services available for, infants and toddlers
with disabilities and their families; and
(2) Perform the following duties:
(i)(A) Listen to the presentation of relevant viewpoints about the
due process complaint.
(B) Examine all information relevant to the issues.
(C) Seek to reach a timely resolution of the due process complaint.
(ii) Provide a record of the proceedings, including a written
decision.
(b) Definition of impartial. (1) Impartial means that the due
process hearing officer appointed to implement the due process hearing
under this part--
(i) Is not an employee of the lead agency or an EIS provider
involved in the provision of early intervention services or care of the
child; and
(ii) Does not have a personal or professional interest that would
conflict with his or her objectivity in implementing the process.
(2) A person who otherwise qualifies under paragraph (b)(1) of this
section is not an employee of an agency solely because the person is
paid by the agency to implement the due process hearing procedures or
mediation procedures under this part.
(Authority: 20 U.S.C. 1439(a)(1))
Sec. 303.436 Parental rights in due process hearing proceedings.
(a) General. Each lead agency must ensure that the parents of a
child referred to Part C are afforded the rights in paragraph (b) of
this section in the due process hearing carried out under Sec.
303.430(d).
(b) Rights. Any parent involved in a due process hearing has the
right to--
(1) Be accompanied and advised by counsel and by individuals with
special knowledge or training with respect to early intervention
services for infants and toddlers with disabilities;
(2) Present evidence and confront, cross-examine, and compel the
attendance of witnesses;
(3) Prohibit the introduction of any evidence at the hearing that
has not been disclosed to the parent at least five days before the
hearing;
(4) Obtain a written or electronic verbatim transcription of the
hearing; and
(5) Obtain written findings of fact and decisions.
(Authority: 20 U.S.C. 1439(a))
Sec. 303.437 Convenience of hearings and timelines.
(a) Any due process hearing conducted under this subpart must be
carried out at a time and place that is reasonably convenient to the
parents.
(b) Each lead agency must ensure that, not later than 30 days after
the receipt of a parent's due process complaint, the due process
hearing required under this subpart is completed and a written decision
mailed to each of the parties.
(Authority: 20 U.S.C. 1439(a)(1))
Sec. 303.438 Civil action.
Any party aggrieved by the findings and decision issued pursuant to
a due process complaint has the right to bring a civil action in State
or Federal court under section 639(a)(1) of the Act.
(Authority: 20 U.S.C. 1439(a)(1))
States That Choose To Adopt the Part B Due Process Procedures Under
Section 615 of the Act
Sec. 303.440 Filing a due process complaint.
(a) General. (1) A parent, EIS provider, or a lead agency may file
a due process complaint on any of the matters described in Sec.
303.421(a) (relating to the identification, evaluation or placement of
a child under Part C of the Act, or the provision of early intervention
services to the infant or toddler with a disability and his or her
family).
(2) The due process complaint must allege a violation that occurred
not more than two years before the date the parent or public agency
knew or should have known about the alleged action that forms the basis
of the due process complaint, or, if the State has an explicit time
limitation for filing a due process complaint under this part, in the
time allowed by that State law, except that the exceptions to the
timeline described in Sec. 303.443(f) apply to the timeline in this
section.
(b) Information for parents. The lead agency must inform the parent
of any free or low-cost legal and other relevant services available in
the area if--
(1) The parent requests the information; or
(2) The parent or EIS provider files a due process complaint under
this section.
(c) Timeline for Resolution. The lead agency may adopt a 30- or 45-
day timeline, subject to Sec. 303.447(a), for the resolution of due
process complaints and must specify in its written policies and
procedures under Sec. 303.123 and in its prior written notice under
Sec. 303.421, the specific timeline it has adopted.
(Authority: 20 U.S.C. 1415(b)(6), 1439)
Sec. 303.441 Due process complaint.
(a) General. (1) The lead agency must have procedures that require
either party, or the attorney representing a party, to provide to the
other party a due process complaint (which must remain confidential).
(2) The party filing a due process complaint must forward a copy of
the due process complaint to the lead agency.
(b) Content of complaint. The due process complaint required in
paragraph (a)(1) of this section must include--
(1) The name of the child;
(2) The address of the residence of the child;
(3) The name of the EIS provider serving the child;
(4) In the case of a homeless child (within the meaning of section
725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a(2)),
[[Page 26521]]
available contact information for the child, and the name of the EIS
provider serving the child;
(5) A description of the nature of the problem of the child
relating to the proposed or refused initiation or change, including
facts relating to the problem; and
(6) A proposed resolution of the problem to the extent known and
available to the party at the time.
(c) Notice required before a hearing on a due process complaint. A
party may not have a hearing on a due process complaint until the
party, or the attorney representing the party, files a due process
complaint that meets the requirements of paragraph (b) of this section.
(d) Sufficiency of complaint. (1) The due process complaint
required by this section must be deemed sufficient unless the party
receiving the due process complaint notifies the hearing officer and
the other party in writing, within 15 days of receipt of the due
process complaint, that the receiving party believes the due process
complaint does not meet the requirements in paragraph (b) of this
section.
(2) Within five days of receipt of notification under paragraph
(d)(1) of this section, the hearing officer must make a determination
on the face of the due process complaint of whether the due process
complaint meets the requirements of paragraph (b) of this section, and
must immediately notify the parties in writing of that determination.
(3) A party may amend its due process complaint only if--
(i) The other party consents in writing to the amendment and is
given the opportunity to resolve the due process complaint through a
meeting held pursuant to Sec. 303.442; or
(ii) The hearing officer grants permission, except that the hearing
officer may only grant permission to amend at any time not later than
five days before the due process hearing begins.
(4) If a party files an amended due process complaint, the
timelines for the resolution meeting in Sec. 303.442(a) and the time
period to resolve in Sec. 303.442(b) begin again with the filing of
the amended due process complaint.
(e) Lead agency response to a due process complaint. (1) If the
lead agency has not sent a prior written notice under Sec. 303.421 to
the parent regarding the subject matter contained in the parent's due
process complaint, the lead agency or EIS provider must, within 10 days
of receiving the due process complaint, send to the parent a response
that includes--
(i) An explanation of why the lead agency proposed or refused to
take the action raised in the due process complaint;
(ii) A description of other options that the IFSP team considered
and the reasons why those options were rejected;
(iii) A description of each evaluation procedure, assessment,
record, or report the lead agency used as the basis for the proposed or
refused action; and
(iv) A description of the other factors that are relevant to the
agency's proposed or refused action.
(2) A response by the lead agency under paragraph (e)(1) of this
section shall not be construed to preclude the lead agency from
asserting that the parent's due process complaint was insufficient,
where appropriate.
(f) Other party response to a due process complaint. Except as
provided in paragraph (e) of this section, the party receiving a due
process complaint must, within 10 days of receiving the due process
complaint, send to the other party a response that specifically
addresses the issues raised in the due process complaint.
(Authority: 20 U.S.C. 1415(b)(7), 1415(c)(2), 1439)
Sec. 303.442 Resolution process.
(a) Resolution meeting. (1) Within 15 days of receiving notice of
the parent's due process complaint, and prior to the initiation of a
due process hearing under Sec. 303.443, the lead agency must convene a
meeting with the parent and the relevant member or members of the IFSP
team who have specific knowledge of the facts identified in the due
process complaint that--
(i) Includes a representative of the lead agency who has decision-
making authority on behalf of that agency; and
(ii) May not include an attorney of the lead agency unless the
parent is accompanied by an attorney.
(2) The purpose of the meeting is for the parent of the child to
discuss the due process complaint, and the facts that form the basis of
the due process complaint, so that the lead agency has the opportunity
to resolve the dispute that is the basis for the due process complaint.
(3) The meeting described in paragraph (a)(1) and (a)(2) of this
section need not be held if--
(i) The parent and lead agency agree in writing to waive the
meeting; or
(ii) The parent and lead agency agree to use the mediation process
described in Sec. 303.431.
(4) The parent and the lead agency must determine the relevant
members of the IFSP team to attend the meeting.
(b) Resolution period. (1) If the lead agency has not resolved the
due process complaint to the satisfaction of the parties within 30 days
of the receipt of the due process complaint, the due process hearing
may occur.
(2) Except as provided in paragraph (c) of this section, the
timeline for issuing a final decision under Sec. 303.447 begins at the
expiration of the 30-day period in paragraph (b)(1) of this section.
(3) Except where the parties have jointly agreed to waive the
resolution process or to use mediation, notwithstanding paragraphs
(b)(1) and (2) of this section, the failure of the parent filing a due
process complaint to participate in the resolution meeting will delay
the timelines for the resolution process and due process hearing until
the meeting is held.
(4) If the lead agency is unable to obtain the participation of the
parent in the resolution meeting after reasonable efforts have been
made, including documenting its efforts, the lead agency, may at the
conclusion of the 30-day period, request that a hearing officer dismiss
the parent's due process complaint.
(5) If the lead agency fails to hold the resolution meeting
specified in paragraph (a) of this section within 15 days of receiving
notice of a parent's due process complaint or fails to participate in
the resolution meeting, the parent may seek the intervention of a
hearing officer to begin the due process hearing timeline.
(c) Adjustments to 30-day resolution period. The 30- or 45-day
timeline adopted by the lead agency under Sec. 303.440(c) for the due
process hearing described in Sec. 303.447(a) starts the day after one
of the following events:
(1) Both parties agree in writing to waive the resolution meeting.
(2) After either the mediation or resolution meeting starts but
before the end of the 30-day period, the parties agree in writing that
no agreement is possible.
(3) If both parties agree in writing to continue the mediation at
the end of the 30-day resolution period, but later, the parent or lead
agency withdraws from the mediation process.
(d) Written settlement agreement. If a resolution to the dispute is
reached at the meeting described in paragraph (a)(1) and (2) of this
section, the parties must execute a legally binding agreement that is--
(1) Signed by both the parent and a representative of the lead
agency who
[[Page 26522]]
has the authority to bind the agency; and
(2) Enforceable in any State court of competent jurisdiction or in
a district court of the United States, or, by the lead agency, if the
State has other mechanisms or procedures that permit parties to seek
enforcement of resolution agreements pursuant to this section.
(e) Agreement review period. If the parties execute an agreement
pursuant to paragraph (d) of this section, a party may void the
agreement within three business days of the agreement's execution.
(Authority: 20 U.S.C. 1415(f)(1)(B), 1439)
Sec. 303.443 Impartial due process hearing.
(a) General. Whenever a due process complaint is received
consistent with Sec. 303.440, the parents or the EIS provider involved
in the dispute must have an opportunity for an impartial due process
hearing, consistent with the procedures in Sec. Sec. 303.440 through
303.442.
(b) Agency responsible for conducting the due process hearing. The
hearing described in paragraph (a) of this section must be conducted by
the lead agency directly responsible for the early intervention
services of the infant or toddler, as determined under State statute,
State regulation, or a written policy of the lead agency.
(c) Impartial hearing officer. (1) At a minimum, a hearing
officer--
(i) Must not be--
(A) An employee of the State, lead agency, or the EIS provider that
is involved in the early intervention services or care of the infant or
toddler; or
(B) A person having a personal or professional interest that
conflicts with the person's objectivity in the hearing;
(ii) Must possess knowledge of, and the ability to understand, the
provisions of the Act, Federal and State regulations pertaining to the
Act, and legal interpretations of the Act by Federal and State courts;
(iii) Must possess the knowledge and ability to conduct hearings in
accordance with appropriate, standard legal practice; and
(iv) Must possess the knowledge and ability to render and write
decisions in accordance with appropriate, standard legal practice.
(2) A person who otherwise qualifies to conduct a hearing under
paragraph (c)(1) of this section is not an employee of the agency
solely because he or she is paid by the agency to serve as a hearing
officer.
(3) Each public agency must keep a list of the persons who serve as
hearing officers. The list must include a statement of the
qualifications of each of those persons.
(d) Subject matter of due process hearings. The party requesting
the due process hearing may not raise issues at the due process hearing
that were not raised in the due process complaint filed under Sec.
303.441(b), unless the other party agrees otherwise.
(e) Timeline for requesting a hearing. A parent, lead agency, or
EIS provider must request an impartial hearing on their due process
complaint within two years of the date the parent, lead agency, or EIS
provider knew or should have known about the alleged action that forms
the basis of the due process complaint, or if the State has an explicit
time limitation for requesting such a due process hearing under this
part, in the time allowed by that State law.
(f) Exceptions to the timeline. The timeline described in paragraph
(e) of this section does not apply to a parent if the parent was
prevented from filing a due process complaint due to--
(1) Specific misrepresentations by the lead agency or EIS provider
that it had resolved the problem forming the basis of the due process
complaint; or
(2) The lead agency's or EIS provider's failure to provide the
parent information that was required under this part to be provided to
the parent.
(Authority: 20 U.S.C. 1415(f)(1)(A), 1415(f)(3)(A)-(D), 1439)
Sec. 303.444 Hearing rights.
(a) General. Any party to a hearing conducted pursuant to
Sec. Sec. 303.440 through 303.445, or an appeal conducted pursuant to
Sec. 303.446, has the right to--
(1) Be accompanied and advised by counsel and by individuals with
special knowledge or training with respect to the problems of infants
or toddlers with disabilities;
(2) Present evidence and confront, cross-examine, and compel the
attendance of witnesses;
(3) Prohibit the introduction of any evidence at the hearing that
has not been disclosed to that party at least five business days before
the hearing;
(4) Obtain a written, or, at the option of the parents, electronic,
verbatim record of the hearing; and
(5) Obtain written, or, at the option of the parents, electronic
findings of fact and decisions.
(b) Additional disclosure of information. (1) At least five
business days prior to a hearing conducted pursuant to Sec.
303.443(a), each party must disclose to all other parties all
evaluations completed by that date and recommendations based on the
offering party's evaluations that the party intends to use at the
hearing.
(2) A hearing officer may bar any party that fails to comply with
paragraph (b)(1) of this section from introducing the relevant
evaluation or recommendation at the hearing without the consent of the
other party.
(c) Parental rights at hearings. Parents involved in hearings must
be given the right to--
(1) Have the child who is the subject of the hearing present;
(2) Open the hearing to the public; and
(3) Have the record of the hearing and the findings of fact and
decisions described in paragraphs (a)(4) and (a)(5) of this section
provided at no cost to parents.
(Authority: 20 U.S.C. 1415(f)(2), 1415(h), 1439)
Sec. 303.445 Hearing decisions.
(a) Decision of hearing officer. (1) Subject to paragraph (a)(2) of
this section, a hearing officer must make a determination, based on
substantive grounds, of whether the child was appropriately identified,
placed, or evaluated, or whether the infant or toddler with a
disability and his or her family were appropriately provided early
intervention services under Part C of the Act.
(2) In matters alleging a procedural violation, a hearing officer
may find that a child did not receive appropriate identification,
evaluation, placement, or provision of early intervention services for
the child and that child's family under Part C of the Act only if the
procedural inadequacies--
(i) Impeded the child's right to identification, evaluation, and
placement or provision of early intervention services for the child and
that child's family under Part C of the Act;
(ii) Significantly impeded the parents' opportunity to participate
in the decision-making process regarding identification, evaluation,
placement or provision of early intervention services for the child and
that child's family under Part C of the Act; or
(iii) Caused a deprivation of educational or developmental benefit.
(3) Nothing in paragraph (a) of this section shall be construed to
preclude a hearing officer from ordering the lead agency or EIS
provider to comply with procedural requirements under Sec. Sec.
303.400 through 303.449.
(b) Construction clause. Nothing in Sec. Sec. 303.440 through
303.445 shall be construed to affect the right of a parent to file an
appeal of the due process hearing decision with the lead agency
[[Page 26523]]
under Sec. 303.446(b), if a lead agency level appeal is available.
(c) Separate due process complaint. Nothing in Sec. Sec. 303.440
through 303.449 shall be construed to preclude a parent from filing a
separate due process complaint on an issue separate from a due process
complaint already filed.
(d) Findings and decisions to general public. The lead agency,
after deleting any personally identifiable information, must make the
findings and decisions available to the public.
(Authority: 20 U.S.C. 1415(f)(3)(E)-(F), 1415(h)(4), 1415(o), 1439)
Sec. 303.446 Finality of decision; appeal; impartial review.
(a) Finality of hearing decision. A decision made in a hearing
conducted pursuant to Sec. Sec. 303.440 through 303.445 is final,
except that any party involved in the hearing may appeal the decision
under the provisions of paragraph (b) of this section and Sec.
303.448.
(b) Appeal of decisions; impartial review. (1) If the hearing
required by Sec. 303.443 is conducted by a public agency other than
the lead agency, any party aggrieved by the findings and decision in
the hearing may appeal to the lead agency.
(2) If there is an appeal, the lead agency must conduct an
impartial review of the findings and decision appealed. The official
conducting the review must--
(i) Examine the entire hearing record;
(ii) Ensure that the procedures at the hearing were consistent with
the requirements of due process;
(iii) Seek additional evidence if necessary. If a hearing is held
to receive additional evidence, the rights in Sec. 303.444 apply;
(iv) Afford the parties an opportunity for oral or written
argument, or both, at the discretion of the reviewing official;
(v) Make an independent decision on completion of the review; and
(vi) Give a copy of the written, or, at the option of the parents,
electronic findings of fact and decisions to the parties.
(c) Findings of fact and decision to the general public. The lead
agency, after deleting any personally identifiable information, must
make the findings of fact and decisions described in paragraph
(b)(2)(vi) of this section available to the general public.
(d) Finality of review decision. The decision made by the reviewing
official is final unless a party brings a civil action under Sec.
303.448.
(Authority: 20 U.S.C. 1415(g), 1415(h)(4), 1415(i)(1)(A),
1415(i)(2), 1439)
Sec. 303.447 Timelines and convenience of hearings and reviews.
(a) The lead agency must ensure that not later than either 30 days
or 45 days (consistent with the lead agency's written policies and
procedures adopted under Sec. 303.440(c)) after the expiration of the
30-day period in Sec. 303.442(b), or the adjusted 30-day time periods
described in Sec. 303.442(c)--
(1) A final decision is reached in the hearing; and
(2) A copy of the decision is mailed to each of the parties.
(b) The lead agency must ensure that not later than 30 days after
the receipt of a request for a review--
(1) A final decision is reached in the review; and
(2) A copy of the decision is mailed to each of the parties.
(c) A hearing or reviewing officer may grant specific extensions of
time beyond the periods set out in paragraphs (a) and (b) of this
section at the request of either party.
(d) Each hearing and each review involving oral arguments must be
conducted at a time and place that is reasonably convenient to the
parents and child involved.
(Authority: 20 U.S.C. 1415(f)(1)(B)(ii), 1415(g), 1415(i)(1), 1439)
Sec. 303.448 Civil action.
(a) General. Any party aggrieved by the findings and decision made
under Sec. Sec. 303.440 through 303.445 who does not have the right to
an appeal under Sec. 303.446(b), and any party aggrieved by the
findings and decision under Sec. 303.446(b), has the right to bring a
civil action with respect to the due process complaint under Sec.
303.440. The action may be brought in any State court of competent
jurisdiction or in a district court of the United States without regard
to the amount in controversy.
(b) Time limitation. The party bringing the action shall have 90
days from the date of the decision of the hearing officer or, if
applicable, the decision of the State review official, to file a civil
action, or, if the State has an explicit time limitation for bringing
civil actions under Part C of the Act, in the time allowed by that
State law.
(c) Additional requirements. In any action brought under paragraph
(a) of this section, the court--
(1) Receives the records of the administrative proceedings;
(2) Hears additional evidence at the request of a party; and
(3) Basing its decision on the preponderance of the evidence,
grants the relief that the court determines to be appropriate.
(d) Jurisdiction of district courts. The district courts of the
United States have jurisdiction of actions brought under section 615 of
the Act without regard to the amount in controversy.
(e) Rule of construction. Nothing in this part restricts or limits
the rights, procedures, and remedies available under the Constitution,
the Americans with Disabilities Act of 1990, title V of the
Rehabilitation Act of 1973, or other Federal laws protecting the rights
of children with disabilities, except that before the filing of a civil
action under these laws seeking relief that is also available under
section 615 of the Act, the procedures under Sec. Sec. 303.440 and
303.446 must be exhausted to the same extent as would be required had
the action been brought under section 615 of the Act.
(Authority: 20 U.S.C. 1415(i)(2), 1415(i)(3)(A), 1415(l), 1439)
Sec. 303.449 State enforcement mechanisms.
Notwithstanding Sec. Sec. 303.431(b)(6) and 303.442(d)(2), which
provide for judicial enforcement of a written agreement reached as a
result of a mediation or a resolution meeting, there is nothing in this
part that would prevent the State from using other mechanisms to seek
enforcement of that agreement, provided that use of those mechanisms is
not mandatory and does not delay or deny a party the right to seek
enforcement of the written agreement in a State court or competent
jurisdiction or in a district court of the United States.
(Authority: 20 U.S.C. 1415(e)(2)(F), 1415(f)(1)(B), 1439)
Subpart F--Use of Funds and Payor of Last Resort
General
Sec. 303.500 Use of funds and payor of last resort.
Each Statewide system must include written policies and procedures
that meet the requirements of the--
(a) Use of funds provisions in Sec. 303.501; and
(b) Payor of last resort provisions in Sec. Sec. 303.510 through
303.521 (regarding the identification and coordination of funding
resources for, and the provision of, early intervention services under
Part C of the Act within the State).
(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10), 1435(a)(12), 1438,
1439(a)(2), 1440)
Use of Funds
Sec. 303.501 Permissive use of funds by the lead agency.
A lead agency may use funds under this part for activities or
expenses that
[[Page 26524]]
are reasonable and necessary for implementing the State's early
intervention program for infants and toddlers with disabilities
including funds--
(a) For direct early intervention services for infants and toddlers
with disabilities and their families under this part that are not
otherwise funded through other public or private sources (subject to
Sec. Sec. 303.510 through 303.521);
(b) To expand and improve on services for infants and toddlers with
disabilities and their families under this part that are otherwise
available;
(c)(1) To provide FAPE as that term is defined in Sec. 303.15, in
accordance with Part B of the Act, to children with disabilities from
their third birthday to the beginning of the following school year;
(2) The provision of FAPE under paragraph (c)(1) of this section
does not apply to children who continue to receive early intervention
services under this part in accordance with paragraph (d) of this
section and Sec. 303.211;
(d) With the written consent of the parents, to continue to provide
early intervention services under this part, in lieu of FAPE provided
in accordance with Part B of the Act, to children with disabilities
from their third birthday (pursuant to Sec. 303.211) until those
children enter, or are eligible under State law to enter, kindergarten;
and
(e) In any State that does not provide services under Sec. 303.204
for at-risk infants and toddlers as defined in Sec. 303.5, to
strengthen the statewide system by initiating, expanding, or improving
collaborative efforts related to at-risk infants and toddlers,
including establishing linkages with appropriate public and private
community-based organizations, services, and personnel for the purposes
of--
(1) Identifying and evaluating at-risk infants and toddlers;
(2) Making referrals for the infants and toddlers identified and
evaluated under paragraph (e)(1) of this section; and
(3) Conducting periodic follow-up on each referral, to determine if
the status of the infant or toddler involved has changed with respect
to the eligibility of the infant or toddler for services under this
part.
(Authority: 20 U.S.C. 1435(a)(10), 1438)
Payor of Last Resort
Sec. 303.510 Payor of last resort.
(a) Nonsubstitution of funds. Except as provided in paragraph (b)
of this section, funds under this part may not be used to satisfy a
financial commitment for services that would otherwise have been paid
for from another public or private source, including any medical
program administered by the Department of Defense, but for the
enactment of Part C of the Act. Therefore, funds under this part may be
used only for early intervention services that an infant or toddler
with a disability needs but is not currently entitled to receive or
have payment made from any other Federal, State, local, or private
source (subject to Sec. Sec. 303.520 and 303.521).
(b) Interim payments--reimbursement. If necessary to prevent a
delay in the timely provision of appropriate early intervention
services to a child or the child's family, funds under this part may be
used to pay the provider of services (for services and functions
authorized under this part, including health services as defined in
Sec. 303.16 (but not medical services), child find functions described
in Sec. Sec. 303.115 through 303.117 and Sec. Sec. 303.300 through
303.303, and evaluations and assessments in Sec. 303.320), pending
reimbursement from the agency or entity that has ultimate
responsibility for the payment.
(c) Non-reduction of benefits. Nothing in this part may be
construed to permit a State to reduce medical or other assistance
available or to alter eligibility under Title V of the Social Security
Act, 42 U.S.C. 701 et seq., (SSA) (relating to maternal and child
health) or Title XIX of the SSA, 42 U.S.C. 1396 (relating to Medicaid),
within the State.
(Authority: 20 U.S.C. 1440(a), 1440(c))
Sec. 303.511 Establishing financial responsibility for, and methods
of, ensuring services.
(a) General. Each State must ensure that it has in place methods
for establishing financial responsibility (consistent with the methods
adopted under Part B of the Act, where appropriate) and providing early
intervention services under this part. The methods must meet the
requirements of this subpart, and be set forth in--
(1) State law or regulation;
(2) Signed interagency and intra-agency agreements between
respective agency officials that clearly identify the financial and
service provision responsibilities of each agency (or entity within the
agency); or
(3) Other appropriate written methods determined by the Governor of
the State, or the Governor's designee, and approved by the Secretary
through the review and approval of the State's application.
(b) Financial responsibility. Each method must define the financial
responsibility of each agency for paying for early intervention
services or other functions authorized under this part including child
find and evaluations and assessments (consistent with State law and the
requirements of this part).
(c) Procedures for resolving disputes. (1) Each method must include
procedures for achieving a timely resolution of intra-agency and
interagency disputes about payments for a given service, or disputes
about other matters related to the State's early intervention service
program. Those procedures must include a mechanism for resolution of
intra-agency disputes within agencies and for the Governor, Governor's
designee, or the lead agency to make a final determination for
interagency disputes, which determination must be binding upon the
agencies involved.
(2) The method must--
(i) Permit the agency to resolve its own internal disputes (based
on the agency's procedures that are included in the agreement), so long
as the agency acts in a timely manner; and
(ii) Include the process that the lead agency will follow in
achieving resolution of intra-agency disputes, if a given agency is
unable to resolve its own internal disputes in a timely manner.
(3) If, during the lead agency's resolution of the dispute, the
Governor, Governor's designee, or lead agency determines that the
assignment of financial responsibility under this section was
inappropriately made--
(i) The Governor, Governor's designee or lead agency must reassign
the responsibility to the appropriate agency; and
(ii) The lead agency must make arrangements for reimbursement of
any expenditures incurred by the agency originally assigned
responsibility.
(d) Delivery of services in a timely manner. The methods adopted by
the State under this section must--
(1) Include a mechanism to ensure that no services that a child is
entitled to receive under this part are delayed or denied because of
disputes between agencies regarding financial or other
responsibilities; and
(2) Be consistent with the written funding policies adopted by the
State under this subpart.
(e) Additional components. Each method must include any additional
components necessary to ensure effective cooperation and coordination
among, and the lead agency's general supervision (including monitoring)
of, all public agencies and early
[[Page 26525]]
intervention service providers involved in the State's early
intervention service programs.
(Authority: 20 U.S.C. 1435(a)(10), 1440(b))
Use of Insurance, Benefits, Systems of Payments, and Fees
Sec. 303.520 Policies related to use of insurance or public benefits
for payment for services.
(a) Public insurance and benefits. (1) The State may use the public
insurance or benefits program of a parent or infant or toddler with a
disability under this part (consistent with the program requirements of
the public insurance or benefits program), if--
(i) The parent or the infant or toddler with a disability is
already enrolled or participating in a public insurance or benefits
program, provided that the parent provides consent as defined in Sec.
303.7 to disclose personally identifiable information if required under
Sec. 303.414;
(ii) The parent has not provided consent under Sec. Sec. 303.7,
303.414, or 303.420(a)(3), but the infant or toddler with a disability
is in foster care and eligible to participate in the public insurance
or benefits program; or
(iii) The parent is not enrolled in a public insurance or benefits
program but agrees to enroll and provides consent to enroll in a public
insurance or benefits program in accordance with Sec. Sec. 303.7,
303.414, and 303.420(a)(3).
(2) If the State requires a parent to pay any types of costs that
the parent may incur as a result of participating in a public insurance
or benefits program (such as co-payments, premiums or deductibles or
the required use of private insurance as the primary insurance), those
types of costs must be identified in the State's policies regarding its
system of payments under Sec. 303.521; otherwise, the State will not
be allowed to charge those costs to the parent.
(3) In obtaining parental consent required under this section, the
lead agency must provide a copy of the State's system of payments
policies that identify potential costs that the parent may incur while
enrolled in a public insurance or benefits program (such as co-
payments, premiums or deductibles or the required use of private
insurance as the primary insurance by the public insurance or public
benefits program).
(b) Private insurance. (1)(i) Except as provided in paragraph
(b)(2) of this section, the State may use the private insurance of a
parent to pay for services under this part only if the parent provides
consent to do so in accordance with Sec. Sec. 303.7, 303.414, and
303.420(a)(3).
(ii) If the State requires a parent to pay any types of costs that
the parent may incur as a result of the State's use of private
insurance to pay for early intervention services, those types of costs
(such as deductibles or co-payments) must be identified in the State's
system of payments policies under Sec. 303.521; otherwise, the State
will not be allowed to charge those costs to the parent.
(iii) In obtaining parental consent required under this section,
the lead agency must provide a copy of the State's system of payments
policies that identify the potential types of costs that the parent may
incur while enrolled in a private insurance program (such as co-
payments, premiums or deductibles).
(iv) If a parent or family is determined unable to pay under the
State's definition of inability to pay under Sec. 303.521(a)(3) and
does not provide consent under paragraph (b)(1)(i) of this section, the
lack of consent may not be used to delay or deny any services under
this part to a child or the family.
(2) The parental consent requirements in paragraph (b)(1) of this
section do not apply if the State has enacted a State statute regarding
private health insurance coverage for early intervention services under
Part C of the Act that ensures that the use of private health insurance
to pay for Part C services cannot--
(i) Count towards the lifetime coverage caps for the infant or
toddler with a disability and parents under their health insurance;
(ii) Negatively affect the availability of health insurance to the
infant or toddler with a disability and family, and health insurance
coverage may not be discontinued due to the use of the health insurance
to pay for services under Part C of the Act; or
(iii) Be the basis for increasing the health insurance premiums of
the infant or toddler with a disability or the child's family.
(3) If a State has enacted a State statute that meets the
requirements in paragraph (b)(2) of this section regarding private
health insurance coverage to pay for early intervention services under
Part C of the Act, the State may reestablish in the next Federal fiscal
year following the effective date of the statute, a new baseline of
State and local expenditures under Sec. 303.225(b).
(c) Proceeds or funds from public insurance or benefits or from
private insurance. (1) Proceeds or funds from public insurance or
public benefits or from private insurance are not treated as program
income for purposes of 34 CFR 80.25.
(2) If the State receives reimbursements from Federal funds (e.g.,
Medicaid reimbursements attributable directly to Federal funds) for
services under Part C of the Act, those funds are considered neither
State nor local funds under Sec. 303.225(b).
(3) If the State spends funds from a State public insurance or
benefits program or the State portion of a Federal public benefits
program (such as the State portion of Medicaid costs) for services
under this part, those funds may be considered State or local funds
under Sec. 303.225(b); however, if a State elects to include such
funds for purposes of nonsupplanting provisions in Sec. 303.225(b), it
must continue to aggregate such amounts for all future years.
(4) If the State spends funds from private insurance for services
under this part, those funds are considered neither State nor local
funds under Sec. 303.225.
(d) Funds received under a State's system of payments. Funds
received by the State from a parent or family under the State's system
of payments established under Sec. 303.521 are considered program
income under 34 CFR 80.25. These funds--
(1) Do not need to be deducted from the total allowable costs
charged under Part C of the Act (as set forth in 34 CFR 80.25(g)(1));
(2) Must be used for the State's Part C early intervention services
program, consistent with 34 CFR 80.25(g)(2); and
(3) Are considered neither State nor local funds under Sec.
303.225(b).
(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10), 1439(a)(2))
Sec. 303.521 System of payments and fees.
(a) General. A State may establish, consistent with Sec. Sec.
303.13(a)(3) and 303.203(b), a system of payments for early
intervention services under Part C of the Act, including a schedule of
sliding fees or cost participation fees (such as co-pays or deductible
amounts) required to be paid under Federal, State, local, or private
programs of insurance or benefits for which the infant or toddler with
a disability or family is enrolled, that meets the requirements of
Sec. Sec. 303.520 and 303.521. The State's system of payments policies
must be in writing and specify which functions or services, if any,
will be subject to a system of payments (including any fees charged to
the family as a result of using the family's public or private
insurance), and include--
(1) The payment system and schedule of sliding or cost
participation fees that
[[Page 26526]]
may be charged to the parent for early intervention services under this
part;
(2) The basis and amount of payments or fees;
(3) The State's definition of inability to pay (including its
definition of income and family expenses); and
(4) An assurance that--
(i) Fees will not be charged to parents for the services that a
child is otherwise entitled to receive at no cost (including those
services identified under paragraphs (a)(4)(ii), (b), and (c) of this
section);
(ii) The inability of the parents of an infant or toddler with a
disability to pay for services will not result in a delay or denial of
services under this part to the child or the child's family such that,
if the parent or family meets the State's definition of inability to
pay, the infant or toddler with a disability must be provided all Part
C services at no cost including any costs to the family under this
section and Sec. 303.520(a)(2) and (b)(1)(ii); and
(iii) Families will not be charged any more than the actual cost of
the Part C service, and families with public insurance or benefits or
private insurance will not be charged disproportionately more than
families who do not have public insurance or benefits or private
insurance;
(5) Provisions stating that the failure to provide the requisite
income information and documentation may result in a charge of a fee on
the fee schedule and specify the fee to be charged; and
(6) Provisions that allow but do not require the lead agency to use
Part C or other funds to pay for any costs or fees to be paid by a
parent under paragraph (a)(1) of this section, or Sec. 303.520(a)(2)
or (b)(1)(ii). However, for a parent determined unable to pay under
Sec. 303.521(a)(4)(ii), the lead agency must use Part C or other funds
to cover the costs for the parent.
(b) Functions not subject to fees. The following are required
functions that must be carried out at public expense by a State, and
for which no fees may be charged to parents:
(1) Implementing the child find requirements in Sec. Sec. 303.301
through 303.303.
(2) Evaluation and assessment, in accordance with Sec. 303.320,
and including the functions related to evaluation and assessment in
Sec. 303.13(b).
(3) Service coordination services, as defined in Sec. Sec.
303.13(b)(9) and 303.33.
(4) Administrative and coordinative activities related to--
(i) The development, review, and evaluation of IFSPs and interim
IFSPs in accordance with Sec. Sec. 303.342 through 303.345; and
(ii) Implementation of the procedural safeguards in subpart E of
this part and the other components of the statewide system of early
intervention services in subpart D and this subpart.
(c) States with FAPE mandates, or that use funds under Part B of
the Act to serve children under age three. If a State has in effect a
State law requiring the provision of FAPE for, or uses Part B funds to
serve, an infant or toddler with a disability under the age of three
(or any subset of infants and toddlers with disabilities under the age
of three), the State may not charge the parents of the infant or
toddler with a disability for any services (e.g., physical or
occupational therapy) under this part that are part of FAPE for that
infant or toddler and family, and those FAPE services must meet the
requirements of both Parts B and C of the Act.
(d) Family fees. (1) Fees or costs collected from a parent or the
child's family to pay for early intervention services under a State's
system of payments are program income under 34 CFR 80.25. A State may
add this program income to its Part C grant funds, rather than
deducting the program income from the amount of the State's Part C
grant. Any fees collected must be used for the purposes of the grant
under Part C of the Act.
(2) Fees collected under a system of payments are considered
neither State nor local funds under Sec. 303.225(b).
(Authority: 20 U.S.C. 1432(4)(B), 1440)
Subpart G--State Interagency Coordinating Council
Sec. 303.600 Establishment of Council.
(a) A State that desires to receive financial assistance under Part
C of the Act must establish a State Interagency Coordinating Council
(Council) as defined in Sec. 303.8.
(b) The Council must be appointed by the Governor. The Governor
must ensure that the membership of the Council reasonably represents
the population of the State.
(c) The Governor must designate a member of the Council to serve as
the chairperson of the Council or require the Council to do so. Any
member of the Council who is a representative of the lead agency
designated under Sec. 303.201 may not serve as the chairperson of the
Council.
(Authority: 20 U.S.C. 1441(a))
Sec. 303.601 Composition.
(a) The Council must be composed as follows:
(1)(i) At least 20 percent of the members must be parents,
including minority parents, of infants or toddlers with disabilities or
children with disabilities aged 12 years or younger, with knowledge of,
or experience with, programs for infants and toddlers with
disabilities.
(ii) At least one parent member must be a parent of an infant or
toddler with a disability or a child with a disability aged six years
or younger.
(iii) A parent member may not be an employee of a public or private
agency involved in providing early intervention services.
(2) At least 20 percent of the members must be public or private
providers of early intervention services.
(3) At least one member must be from the State legislature.
(4) At least one member must be involved in personnel preparation.
(5) At least one member must--
(i) Be from each of the State agencies involved in the provision
of, or payment for, early intervention services to infants and toddlers
with disabilities and their families; and
(ii) Have sufficient authority to engage in policy planning and
implementation on behalf of these agencies.
(6) At least one member must--
(i) Be from the SEA responsible for preschool services to children
with disabilities; and
(ii) Have sufficient authority to engage in policy planning and
implementation on behalf of the SEA.
(7) At least one member must be from the agency responsible for the
State Medicaid program.
(8) At least one member must be from a Head Start or Early Head
Start agency or program in the State.
(9) At least one member must be from a State agency responsible for
child care.
(10) At least one member must be from the agency responsible for
the State regulation of health insurance.
(11) At least one member must be a representative designated by the
Office of the Coordination of Education of Homeless Children and Youth.
(12) At least one member must be a representative from the State
child welfare agency responsible for foster care.
(13) At least one member must be from the State agency responsible
for children's mental health.
(b) The Governor may appoint one member to represent more than one
program or agency listed in paragraphs (a)(7) through (a)(13) of this
section.
(c) The Council may include other members selected by the Governor,
including a representative from the
[[Page 26527]]
Bureau of Indian Affairs (BIA) or, where there is no school operated or
funded by the BIA, from the Indian Health Service or the tribe or
tribal council.
(d) No member of the Council may cast a vote on any matter that
would provide direct financial benefit to that member or otherwise give
the appearance of a conflict of interest under State law.
(Authority: 20 U.S.C. 1441(b), 1441(f))
Sec. 303.602 Meetings.
(a) The Council must meet, at a minimum, on a quarterly basis, and
in such places as it determines necessary.
(b) The meetings must--
(1) Be publicly announced, sufficiently in advance of the dates
they are to be held to ensure that all interested parties have an
opportunity to attend;
(2) To the extent appropriate, be open and accessible to the
general public; and
(3) As needed, provide for interpreters for persons who are deaf
and other necessary services for Council members and participants. The
Council may use funds under this part to pay for those services.
(Authority: 20 U.S.C. 1441(c))
Sec. 303.603 Use of funds by the Council.
(a) Subject to the approval by the Governor, the Council may use
funds under this part--
(1) To conduct hearings and forums;
(2) To reimburse members of the Council for reasonable and
necessary expenses for attending Council meetings and performing
Council duties (including child care for parent representatives);
(3) To pay compensation to a member of the Council if the member is
not employed or must forfeit wages from other employment when
performing official Council business;
(4) To hire staff; and
(5) To obtain the services of professional, technical, and clerical
personnel, as may be necessary to carry out the performance of its
functions under Part C of the Act.
(b) Except as provided in paragraph (a) of this section, Council
members must serve without compensation from funds available under Part
C of the Act.
(Authority: 20 U.S.C. 1441(d))
Sec. 303.604 Functions of the Council--required duties.
(a) Advising and assisting the lead agency. The Council must advise
and assist the lead agency in the performance of its responsibilities
in section 635(a)(10) of the Act, including--
(1) Identification of sources of fiscal and other support for
services for early intervention service programs under Part C of the
Act;
(2) Assignment of financial responsibility to the appropriate
agency;
(3) Promotion of methods (including use of intra-agency and
interagency agreements) for intra-agency and interagency collaboration
regarding child find under Sec. Sec. 303.115 and 303.301, monitoring
under Sec. 303.120 and Sec. Sec. 303.700 through 303.708, financial
responsibility and provision of early intervention services under
Sec. Sec. 303.202 and 303.511, and transition under Sec. 303.209; and
(4) Preparation of applications under this part and amendments to
those applications.
(b) Advising and assisting on transition. The Council must advise
and assist the SEA and the lead agency regarding the transition of
toddlers with disabilities to preschool and other appropriate services.
(c) Annual report to the Governor and to the Secretary. (1) The
Council must--
(i) Prepare and submit an annual report to the Governor and to the
Secretary on the status of early intervention service programs for
infants and toddlers with disabilities and their families under Part C
of the Act operated within the State; and
(ii) Submit the report to the Secretary by a date that the
Secretary establishes.
(2) Each annual report must contain the information required by the
Secretary for the year for which the report is made.
(Authority: 20 U.S.C. 1441(e)(1))
Sec. 303.605 Authorized activities by the Council.
The Council may carry out the following activities:
(a) Advise and assist the lead agency and the SEA regarding the
provision of appropriate services for children with disabilities from
birth through age five.
(b) Advise appropriate agencies in the State with respect to the
integration of services for infants and toddlers with disabilities and
at-risk infants and toddlers and their families, regardless of whether
at-risk infants and toddlers are eligible for early intervention
services in the State.
(Authority: 20 U.S.C. 1441(e)(2))
Subpart H--Federal Administration and Allocation of Funds
Monitoring, Technical Assistance, and Enforcement
Sec. 303.700 State monitoring and enforcement.
(a) The lead agency must--
(1) Monitor the implementation of this part;
(2) Make determinations annually about the performance of each EIS
program using the categories identified in Sec. Sec. 303.703(b);
(3) Enforce this part consistent with Sec. 303.704, using
appropriate enforcement mechanisms, which must include, if applicable,
the enforcement mechanisms identified in Sec. 303.704(a)(1) (technical
assistance) and (a)(2) (conditions on the lead agency's funding of EIS
programs), (b)(2)(i) (corrective action or improvement plan) and
(b)(2)(iv) (withholding of funds, in whole or in part by the lead
agency), and (c)(2) (withholding of funds, in whole or in part by the
lead agency); and
(4) Report annually on the performance of the State and of each EIS
program under this part as provided in Sec. 303.702.
(b) The primary focus of the State's monitoring activities must be
on--
(1) Improving early intervention results and functional outcomes
for all infants and toddlers with disabilities; and
(2) Ensuring that EIS programs meet the program requirements under
Part C of the Act, with a particular emphasis on those requirements
that are most closely related to improving early intervention results
for infants and toddlers with disabilities.
(c) As a part of its responsibilities under paragraph (a) of this
section, the State must use quantifiable indicators and such
qualitative indicators as are needed to adequately measure performance
in the priority areas identified in paragraph (d) of this section, and
the indicators established by the Secretary for the State performance
plans.
(d) The lead agency must monitor each EIS program located in the
State, using quantifiable indicators in each of the following priority
areas, and using such qualitative indicators as are needed to
adequately measure performance in those areas:
(1) Early intervention services in natural environments.
(2) State exercise of general supervision, including child find,
effective monitoring, the use of resolution sessions (if the State
adopts Part B due process hearing procedures under Sec.
303.430(d)(2)), mediation, and a system of transition services as
defined in section 637(a)(9) of the Act.
(e) In exercising its monitoring responsibilities under paragraph
(d) of this section, the State must ensure that when it identifies
noncompliance with the requirements of this part by EIS
[[Page 26528]]
programs and providers, the noncompliance is corrected as soon as
possible and in no case later than one year after the State's
identification.
(Authority: 20 U.S.C. 1416(a), 1442)
Sec. 303.701 State performance plans and data collection.
(a) General. Each State must have in place the performance plan
that meets the requirements described in section 616 of the Act, is
approved by the Secretary, includes an evaluation of the State's
efforts to implement the requirements and purposes of Part C of the Act
and a description of how the State will improve implementation, and
includes measurable and rigorous targets for the indicators established
by the Secretary under the priority areas described in Sec.
303.700(d).
(b) Each State must review its State performance plan at least once
every six years and submit any amendments to the Secretary.
(c) Data collection. (1) Each State must collect valid and reliable
information as needed to report annually to the Secretary under Sec.
303.702(b)(2) on the indicators established by the Secretary for the
State performance plans.
(2) If the Secretary permits States to collect data on specific
indicators through State monitoring or sampling, and the State collects
data for a particular indicator through State monitoring or sampling,
the State must collect and report data on those indicators for each EIS
program at least once during the six-year period of the State
performance plan.
(3) Nothing in Part C of the Act or these regulations may be
construed to authorize the development of a nationwide database of
personally identifiable information on individuals involved in studies
or other collections of data under Part C of the Act.
(Authority: 20 U.S.C. 1416(b), 1442)
Sec. 303.702 State use of targets and reporting.
(a) General. Each State must use the targets established in the
State's performance plan under Sec. 303.701 and the priority areas
described in Sec. 303.700(d) to analyze the performance of each EIS
program in implementing Part C of the Act.
(b) Public reporting and privacy --(1) Public report. (i) Subject
to paragraph (b)(1)(ii) of this section, the State must--
(A) Report annually to the public on the performance of each EIS
program located in the State on the targets in the State's performance
plan no later than 60 days following the State's submission of its
annual performance report to the Secretary under paragraph (b)(2) of
this section; and
(B) Make the State's performance plan under Sec. 303.701(a),
annual performance reports under paragraph (b)(2) of this section, and
the State's annual reports on the performance of each EIS program under
paragraph (b)(1)(i)(A) of this section available through public means,
including by posting on the Web site of the lead agency, distribution
to the media, and distribution to EIS programs.
(ii) If the State, in meeting the requirements of paragraph
(b)(1)(i)(A) of this section, collects data through State monitoring or
sampling, the State must include in its public report on EIS programs
under paragraph (b)(1)(i)(A) of this section the most recently
available performance data on each EIS program and the date the data
were collected.
(2) State performance report. The State must report annually to the
Secretary on the performance of the State under the State's performance
plan.
(3) Privacy. The State must not report to the public or the
Secretary any information on performance that would result in the
disclosure of personally identifiable information about individual
children, or where the available data are insufficient to yield
statistically reliable information.
(Authority: 20 U.S.C. 1416(b)(2)(B)-(C), 1442)
Sec. 303.703 Secretary's review and determination regarding State
performance.
(a) Review. The Secretary annually reviews the State's performance
report submitted pursuant to Sec. 303.702(b)(2).
(b) Determination--(1) General. Based on the information provided
by the State in the State's annual performance report, information
obtained through monitoring visits, and any other public information
made available, the Secretary determines if the State--
(i) Meets the requirements and purposes of Part C of the Act;
(ii) Needs assistance in implementing the requirements of Part C of
the Act;
(iii) Needs intervention in implementing the requirements of Part C
of the Act; or
(iv) Needs substantial intervention in implementing the
requirements of Part C of the Act.
(2) Notice and opportunity for a hearing. (i) For determinations
made under paragraphs (b)(1)(iii) and (b)(1)(iv) of this section, the
Secretary provides reasonable notice and an opportunity for a hearing
on those determinations.
(ii) The hearing described in paragraph (b)(2) of this section
consists of an opportunity to meet with the Assistant Secretary for
Special Education and Rehabilitative Services to demonstrate why the
Secretary should not make the determination described in paragraph
(b)(1)(iii) or (iv) of this section.
(Authority: 20 U.S.C. 1416(d), 1442)
Sec. 303.704 Enforcement.
(a) Needs assistance. If the Secretary determines, for two
consecutive years, that a State needs assistance under Sec.
303.703(b)(1)(ii) in implementing the requirements of Part C of the
Act, the Secretary takes one or more of the following actions:
(1) Advises the State of available sources of technical assistance
that may help the State address the areas in which the State needs
assistance, which may include assistance from the Office of Special
Education Programs, other offices of the Department of Education, other
Federal agencies, technical assistance providers approved by the
Secretary, and other federally funded nonprofit agencies, and require
the State to work with appropriate entities. This technical assistance
may include--
(i) The provision of advice by experts to address the areas in
which the State needs assistance, including explicit plans for
addressing the areas of concern within a specified period of time;
(ii) Assistance in identifying and implementing professional
development, instructional strategies, and methods of instruction that
are based on scientifically based research;
(iii) Designating and using administrators, service coordinators,
service providers, and other personnel from the EIS program to provide
advice, technical assistance, and support; and
(iv) Devising additional approaches to providing technical
assistance, such as collaborating with institutions of higher
education, educational service agencies, national centers of technical
assistance supported under Part D of the Act, and private providers of
scientifically based technical assistance.
(2) Identifies the State as a high-risk grantee and imposes special
conditions on the State's grant under Part C of the Act.
(b) Needs intervention. If the Secretary determines, for three or
more consecutive years, that a State needs intervention under Sec.
303.703(b)(1)(iii) in implementing the requirements of Part C of the
Act, the following apply:
(1) The Secretary may take any of the actions described in
paragraph (a) of this section.
(2) The Secretary takes one or more of the following actions:
(i) Requires the State to prepare a corrective action plan or
improvement
[[Page 26529]]
plan if the Secretary determines that the State should be able to
correct the problem within one year.
(ii) Requires the State to enter into a compliance agreement under
section 457 of the General Education Provisions Act, as amended, 20
U.S.C. 1234f (GEPA), if the Secretary has reason to believe that the
State cannot correct the problem within one year.
(iii) Seeks to recover funds under section 452 of GEPA, 20 U.S.C.
1234a.
(iv) Withholds, in whole or in part, any further payments to the
State under Part C of the Act.
(v) Refers the matter for appropriate enforcement action, which may
include referral to the Department of Justice.
(c) Needs substantial intervention. Notwithstanding paragraph (a)
or (b) of this section, at any time that the Secretary determines that
a State needs substantial intervention in implementing the requirements
of Part C of the Act or that there is a substantial failure to comply
with any requirement under Part C of the Act by the lead agency or an
EIS program in the State, the Secretary takes one or more of the
following actions:
(1) Recovers funds under section 452 of GEPA, 20 U.S.C. 1234a.
(2) Withholds, in whole or in part, any further payments to the
State under Part C of the Act.
(3) Refers the case to the Office of Inspector General at the
Department of Education.
(4) Refers the matter for appropriate enforcement action, which may
include referral to the Department of Justice.
(d) Report to Congress. The Secretary reports to the Committee on
Education and Labor of the House of Representatives and the Committee
on Health, Education, Labor, and Pensions of the Senate within 30 days
of taking enforcement action pursuant to paragraph (a), (b), or (c) of
this section, on the specific action taken and the reasons why
enforcement action was taken.
(Authority: 20 U.S.C. 1416(e)(1)-(3), 1416(e)(5), 1442)
Sec. 303.705 Withholding funds.
(a) Opportunity for hearing. Prior to withholding any funds under
Part C of the Act, the Secretary provides reasonable notice and an
opportunity for a hearing to the lead agency involved, pursuant to the
procedures in Sec. Sec. 303.231 through 303.236.
(b) Suspension. Pending the outcome of any hearing to withhold
payments under paragraph (a) of this section, the Secretary may suspend
payments to a recipient, suspend the authority of the recipient to
obligate funds under Part C of the Act, or both, after the recipient
has been given reasonable notice and an opportunity to show cause why
future payments or authority to obligate funds under Part C of the Act
should not be suspended.
(c) Nature of withholding--(1) Limitation. If the Secretary
determines that it is appropriate to withhold further payments under
section 616(e)(2) or (e)(3) of the Act, the Secretary may determine--
(i) That such withholding will be limited to programs or projects,
or portions of programs or projects, that affected the Secretary's
determination under Sec. 303.703(b)(1); or
(ii) That the lead agency must not make further payments under Part
C of the Act to specified State agencies or EIS providers that caused
or were involved in the Secretary's determination under Sec.
303.703(b)(1).
(2) Withholding until rectified. Until the Secretary is satisfied
that the condition that caused the initial withholding has been
substantially rectified--
(i) Payments to the State under Part C of the Act must be withheld
in whole or in part; and
(ii) Payments by the lead agency under Part C of the Act must be
limited to State agencies and EIS providers whose actions did not cause
or were not involved in the Secretary's determination under Sec.
303.703(b)(1).
(Authority: 20 U.S.C. 1416(e)(4), 1416(e)(6), 1442)
Sec. 303.706 Public attention.
Whenever a State receives notice that the Secretary is proposing to
take or is taking an enforcement action pursuant to Sec. 303.704 the
State must, by means of a public notice, take such measures as may be
necessary to bring the pendency of an action pursuant to section 616(e)
and Sec. 303.704 of the Act to the attention of the public within the
State, including by posting the notice on the Web site of the lead
agency and distributing the notice to the media and to EIS programs.
(Authority: 20 U.S.C. 1416(e)(7), 1442)
Sec. 303.707 Rule of construction.
Nothing in this subpart may be construed to restrict the Secretary
from utilizing any authority under GEPA, 20 U.S.C. 1221 et seq., and
its regulations in 34 CFR parts 76, 77, 80 and 81, including the
imposition of special conditions under 34 CFR 80.12, to monitor and
enforce the requirements of the Act.
(Authority: 20 U.S.C. 1416(g), 1442)
Sec. 303.708 State enforcement.
Nothing in this subpart may be construed to restrict a State from
utilizing any other authority available to it to monitor and enforce
the requirements of the Act.
(Authority: 20 U.S.C. 1416(a)(1)(C), 1442)
Reports--Program Information
Sec. 303.720 Data requirements--general.
(a) The lead agency must annually report to the Secretary and to
the public on the information required by section 618 of the Act at the
times specified by the Secretary.
(b) The lead agency must submit the report to the Secretary in the
manner prescribed by the Secretary.
(Authority: 20 U.S.C. 1418, 1435(a)(14), 1442)
Sec. 303.721 Annual report of children served--report requirement.
(a) For the purposes of the annual report required by section 618
of the Act and Sec. 303.720, the lead agency must count and report the
number of infants and toddlers receiving early intervention services on
any date between October 1 and December 1 of each year. The report must
include--
(1) The number and percentage of infants and toddlers with
disabilities in the State, by race, gender, and ethnicity, who are
receiving early intervention services (and include in this number any
children reported to it by tribes, tribal organization, and consortia
under Sec. 303.731(e)(1));
(2) The number and percentage of infants and toddlers with
disabilities, by race, gender, and ethnicity, who, from birth through
age 2, stopped receiving early intervention services because of program
completion or for other reasons; and
(3) The number and percentage of at-risk infants and toddlers (as
defined in section 632(1) of the Act) by race and ethnicity and who are
receiving early intervention services under Part C of the Act.
(b) If a State adopts the option under section 635(c) of the Act
and Sec. 303.211 to make services under this part available to
children ages three and older, the State must submit to the Secretary a
report on the number and percentage of children with disabilities who
are eligible for services under section 619 of the Act but whose
parents choose for those children to continue to receive early
intervention services.
(c) The number of due process complaints filed under section 615 of
the Act, the number of hearings conducted and the number of mediations
held, and the number of
[[Page 26530]]
settlement agreements reached through such mediations.
(Authority: 20 U.S.C. 1418(a)(1)(F) and (H), 1435(a)(14),
1435(c)(3), 1442)
Sec. 303.722 Data reporting.
(a) Protection of identifiable data. The data described in section
618(a) of the Act and in Sec. 303.721 must be publicly reported by
each State in a manner that does not result in disclosure of data
identifiable to individual children.
(b) Sampling. The Secretary may permit States and outlying areas to
obtain data in section 618(a) of the Act through sampling.
(Authority: 20 U.S.C. 1418(b), 1435(a)(14), 1442)
Sec. 303.723 Annual report of children served--certification.
The lead agency must include in its report a certification signed
by an authorized official of the agency that the information provided
under Sec. 303.721 is an accurate and unduplicated count of infants
and toddlers with disabilities receiving early intervention services.
(Authority: 20 U.S.C. 1418(a)(3), 1435(a)(14), 1442)
Sec. 303.724 Annual report of children served--other responsibilities
of the lead agency.
In addition to meeting the requirements of Sec. Sec. 303.721
through 303.723, the lead agency must--
(a) Establish procedures to be used by EIS providers in counting
the number of children with disabilities receiving early intervention
services;
(b) Establish dates by which those EIS providers must report to the
lead agency to ensure that the State complies with Sec. 303.721(a);
(c) Obtain certification from each EIS provider that an
unduplicated and accurate count has been made;
(d) Aggregate the data from the count obtained from each EIS
provider, and prepare the reports required under Sec. Sec. 303.721
through 303.723; and
(e) Ensure that documentation is maintained to enable the State and
the Secretary to audit the accuracy of the count.
(Authority: 20 U.S.C. 1418(a), 1435(a)(14), 1442)
Allocation of Funds
Sec. 303.730 Formula for State allocations.
(a) Reservation of funds for outlying areas. From the sums
appropriated to carry out Part C of the Act for any fiscal year, the
Secretary may reserve not more than one percent for payments to
American Samoa, the Commonwealth of the Northern Mariana Islands, Guam,
and the United States Virgin Islands in accordance with their
respective needs for assistance under Part C of the Act.
(b) Consolidation of funds. The provisions of the Omnibus
Territories Act of 1977, Pub. L. 95-134, permitting the consolidation
of grants to the outlying areas, do not apply to the funds provided
under Part C of the Act.
(Authority: 20 U.S.C. 1443(a))
Sec. 303.731 Payments to Indians.
(a) General. (1) The Secretary makes payments to the Secretary of
the Interior under Part C of the Act, which the Secretary of the
Interior must distribute to tribes or tribal organizations (as defined
under section 4 of the Indian Self-Determination and Education
Assistance Act, as amended, 25 U.S.C. 450b), or consortia of those
entities, for the coordination of assistance in the provision of early
intervention services by States to infants and toddlers with
disabilities and their families on reservations served by elementary
and secondary schools for Indian children operated or funded by the
Secretary of the Interior.
(2) A tribe, tribal organization or consortium of those entities is
eligible to receive a payment under this section if the tribe, tribal
organization or consortium of those entities is on a reservation that
is served by an elementary or secondary school operated or funded by
the Secretary of the Interior.
(3) The amount of the payment to the Secretary of the Interior
under this section for any fiscal year is 1.25 percent of the aggregate
amount available to all States under Part C of the Act after the
Secretary determines the amount of payments to be made to the
jurisdictions under Sec. 303.730(a).
(b) Allocation. For each fiscal year, the Secretary of the Interior
must distribute the entire payment received under paragraph (a)(1) of
this section by providing to each tribe, tribal organization, or
consortium an amount based on the number of infants and toddlers
residing on the reservation, as determined annually, divided by the
total of those children served by all tribes, tribal organizations, or
consortia.
(c) Information. To receive a payment under this section, the
tribe, tribal organization, or consortium must submit the appropriate
information to the Secretary of the Interior to determine the amounts
to be distributed under paragraph (b) of this section.
(d) Use of funds. (1) The funds received by a tribe, tribal
organization, or consortium must be used to assist States in child
find, screening, and other procedures for the early identification of
Indian children under three years of age and for parent training. The
funds also may be used to provide early intervention services in
accordance with Part C of the Act. These activities may be carried out
directly or through contracts or cooperative agreements with the Bureau
of Indian Affairs, local educational agencies, and other public or
private nonprofit organizations. The tribe, tribal organization, or
consortium is encouraged to involve Indian parents in the development
and implementation of these activities.
(2) The tribe, tribal organization, or consortium must, as
appropriate, make referrals to local, State, or Federal entities for
the provision of services or further diagnosis.
(e) Reports. (1) To be eligible to receive a payment under
paragraph (b) of this section, a tribe, tribal organization, or
consortium must make a biennial report to the Secretary of the Interior
of activities undertaken under this section, including the number of
contracts and cooperative agreements entered into, the number of
infants and toddlers contacted and receiving services for each year,
and the estimated number of infants and toddlers needing services
during the two years following the year in which the report is made.
This report must include an assurance that the tribe, tribal
organization, or consortium has provided the lead agency in the State
child find information (including the names and dates of birth and
parent contact information) for infants or toddlers with disabilities
who are included in the report in order to meet the child find
coordination and child count requirements in sections 618 and 643 of
the Act.
(2) The Secretary of the Interior must include a summary of this
information (including confirmation that each tribe, tribal
organization, or consortium has provided to the Secretary of the
Interior the assurance required under paragraph (e)(1) of this section)
on a biennial basis to the Secretary along with such other information
as required of the Secretary of the Interior under Part C of the Act.
The Secretary may require any additional information from the Secretary
of the Interior.
(3) Within 90 days after the end of each fiscal year the Secretary
of the Interior must provide the Secretary with a report on the
payments distributed under this section. The report must include--
(i) The name of each tribe, tribal organization, or combination of
those entities that received a payment for the fiscal year;
(ii) The amount of each payment; and
[[Page 26531]]
(iii) The date of each payment.
(f) Prohibited uses of funds. None of the funds under this section
may be used by the Secretary of the Interior for administrative
purposes, including child count and the provision of technical
assistance.
(Authority: 20 U.S.C. 1443(b))
Sec. 303.732 State allotments.
(a) General. Except as provided in paragraphs (b) and (c) of this
section, for each fiscal year, from the aggregate amount of funds
available under Part C of the Act for distribution to the States, the
Secretary allots to each State an amount that bears the same ratio to
the aggregate amount as the number of infants and toddlers in the State
bears to the number of infants and toddlers in all States.
(b) Minimum allocations. Except as provided in paragraph (c) of
this section, no State may receive less than 0.5 percent of the
aggregate amount available under this section or $500,000, whichever is
greater.
(c) Ratable reduction--(1) General. If the sums made available
under Part C of the Act for any fiscal year are insufficient to pay the
full amount that all States are eligible to receive under this section
for that year, the Secretary ratably reduces the allotments to those
States for such year.
(2) Additional funds. If additional funds become available for
making payments under this section, allotments that were reduced under
paragraph (c)(1) of this section will be increased on the same basis
the allotments were reduced.
(d) Definitions. For the purpose of allotting funds to the States
under this section--
(1) Aggregate amount means the amount available for distribution to
the States after the Secretary determines the amount of payments to be
made to the Secretary of the Interior under Sec. 303.731 and to the
outlying areas under Sec. 303.730;
(2) Infants and toddlers means children from birth through age two
in the general population, based on the most recent satisfactory data
as determined by the Secretary; and
(3) State means each of the 50 States, the District of Columbia,
and the Commonwealth of Puerto Rico.
(Authority: 20 U.S.C. 1443(c))
Sec. 303.733 Reallotment of funds.
If a State (as defined in Sec. 303.33) elects not to receive its
allotment, the Secretary reallots those funds among the remaining
States (as defined in Sec. 303.732(d)(3)), in accordance with Sec.
303.732(c)(2).
(Authority: 20 U.S.C. 1443(d))
Sec. 303.734 Reservation for State incentive grants.
(a) General. For any fiscal year for which the amount appropriated
pursuant to the authorization of appropriations under section 644 of
the Act exceeds $460,000,000, the Secretary reserves 15 percent of the
appropriated amount exceeding $460,000,000 to provide grants to States
that are carrying out the policy described in section 635(c) of the Act
and in Sec. 303.211, in order to facilitate the implementation of that
policy.
(b) Amount of grant--(1) General. Notwithstanding section 643(c)(2)
and (c)(3) of the Act, the Secretary provides a grant to each State
under this section in an amount that bears the same ratio to the amount
reserved under paragraph (a) of this section as the number of infants
and toddlers in the State bears to the number of infants and toddlers
in all States receiving grants under paragraph (a) of this section.
(2) Maximum amount. No State may receive a grant under paragraph
(a) for any fiscal year in an amount that is greater than 20 percent of
the amount reserved under that paragraph for the fiscal year.
(c) Carryover of amounts pursuant to section 643(e)(3) of the Act--
(1) First succeeding fiscal year. Pursuant to section 421(b) of GEPA,
20 U.S.C. 1221 et seq., amounts under a grant provided under paragraph
(a) of this section that are not obligated and expended prior to the
beginning of the first fiscal year succeeding the fiscal year for which
those amounts were appropriated must remain available for obligation
and expenditure during the first succeeding fiscal year.
(2) Second succeeding fiscal year. Amounts under a grant provided
under paragraph (a) of this section that are not obligated and expended
prior to the beginning of the second fiscal year succeeding the fiscal
year for which those amounts were appropriated must be returned to the
Secretary and used to make grants to States under section 633 of the
Act (from their allotments identified in Sec. Sec. 303.731 through
303.733) during the second succeeding fiscal year.
(Authority: 20 U.S.C. 1443)
[FR Doc. 07-2140 Filed 5-4-07; 8:45 am]
BILLING CODE 4000-01-P