Early Intervention Program for Infants and Toddlers With Disabilities
Federal RegisterMay 9, 2007
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DEPARTMENT OF EDUCATION
34 CFR Part 303
[Docket ID ED-2007-OSERS-131]
RIN 1820-AB59
Early Intervention Program for Infants and Toddlers With Disabilities
AGENCY:
Office of Special Education and Rehabilitative Services, Department of Education.
ACTION:
Notice of proposed rulemaking (NPRM).
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
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 § 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 § 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 § 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 § 303.2, regarding eligible recipients under Part C of the Act would remain substantively unchanged from current § 303.2, and would be consistent with the definition of
State
in section 602(31) of the Act and in proposed § 303.34.
Current § 303.3, regarding use of funds for activities supported under Part C of the Act, would be incorporated into proposed § 303.501 regarding permissive use of funds by the lead agency in subpart F of these proposed regulations. Current § 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 §§ 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 § 303.3, regarding applicable regulations, would incorporate the provisions from current § 303.5. Proposed § 303.3(a)(1) would incorporate the language from current
§ 303.5(a)(2). Proposed § 303.3(a)(2) would include the references from the Education Department General Administrative Regulations (EDGAR) in current § 303.5(a)(1). The references to the Part B regulations in current § 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 § 303.5(a)(3), would appear, respectively, in proposed §§ 303.402 through 303.417 and proposed §§ 303.231 through 303.236.
Proposed § 303.3(b) would incorporate the language from current § 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 § 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 § 303.4 (
Act
) would incorporate the statutory definition of
Act
from section 601(a) of the Act and current § 303.6, and would further clarify that the Act has been amended.
Proposed § 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 § 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 § 303.16 would be removed from the regulations. Proposed § 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 § 303.6 (
Child
) would modify the definition of
child
in current § 303.7 to mean an individual under age six and would be consistent with the State option outlined in proposed § 303.211 to serve children ages three and older.
Proposed § 303.7 (
Consent
) would incorporate the provisions of current § 303.401(a), except that proposed § 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 § 303.8 (
Council
) would remain substantively unchanged from current § 303.8 and would reflect the statutory definition in section 632(2) of the Act.
Proposed § 303.9 (
Day
) would remain substantively unchanged from current § 303.9.
Proposed § 303.10 (
Developmental delay
) would remain substantively unchanged from current § 303.10 and would cross-reference proposed § 303.111 regarding the State definition of developmental delay and proposed § 303.203(c) regarding the requirement that the State must include its rigorous definition of developmental delay in its application to the Department.
Proposed § 303.11 (
Early intervention service program
or
EIS program
) would replace current § 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 §§ 303.700 through 303.702.
Proposed § 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 § 303.12(b) would be similar to current § 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 § 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 § 303.13, regarding the definition of
early intervention services
, would replace current § 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 § 303.13(a)(2) would retain the language in current § 303.12(a)(2) to clarify that the early intervention services are selected in collaboration with parents. Proposed § 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 § 303.13(a)(8) would clarify that early intervention services, to the maximum extent appropriate, are provided in natural environments, as defined in proposed § 303.26 and consistent with proposed § 303.126.
Proposed § 303.13(b) regarding types of early intervention services would substantively incorporate the provisions of current § 303.12(d) but would not include the references from current § 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 § 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 § 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,
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 § 303.13(b)(1)(i) (
Assistive technology device
), proposed § 303.13(b)(1)(ii) (
Assistive technology service
), and proposed § 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 § 303.13(b)(2) (
Audiology services
) would be substantively unchanged from current § 303.12(d)(2), except that the term in current § 303.12(d)(2) would be changed from
audiology
to
audiology services
because the section outlines specific audiology services provided.
Proposed § 303.13(b)(3) (
Family training, counseling, and home visits
) would be substantively unchanged from current § 303.12(d)(3).
Proposed § 303.13(b)(4) (
Health services
) would reference the definition of
health services
in proposed § 303.16, consistent with the reference to the definition of health services in current § 303.12(d)(4).
Proposed § 303.13(b)(5) (
Medical services
) would be substantively unchanged from current § 303.12(d)(5) (Medical services only for diagnostic or evaluation). Proposed § 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 § 303.13(b)(6) (
Occupational therapy
) would be substantively unchanged from current § 303.12(d)(8).
Proposed § 303.13(b)(7) (
Physical therapy
) would be substantively unchanged from current § 303.12(d)(9).
Proposed § 303.13(b)(8) (
Psychological services
) would be substantively unchanged from current § 303.12(d)(10).
Proposed § 303.13(b)(9) (
Service coordination services
) would cross-reference the definition of service coordination services in proposed § 303.33, which substantively includes the language in current § 303.12(d)(11) regarding the meaning of service coordination services.
Proposed § 303.13(b)(10) (
Social work services
) would be substantively unchanged from current § 303.12(d)(12).
Proposed § 303.13(b)(11) (
Special instruction
) would be substantively unchanged from current § 303.12(d)(13).
Proposed § 303.13(b)(12) (
Speech-language pathology services
) would reflect the definition of speech-language pathology in current § 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 § 303.13(b)(13) (
Transportation and related costs
) would be substantively unchanged from current § 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 § 303.13(b)(14) (
Vision services
) would be substantively unchanged from current § 303.12(d)(16).
Proposed § 303.13(c) (
Qualified personnel
) would be similar to current § 303.12(e) except for the following changes. As previously described in the discussion related to proposed § 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 § 303.12(e)(4) would not be included in proposed § 303.13(c) consistent with section 632(4) of the Act.
Proposed § 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 § 303.13(c)(11). We believe that such classification in the regulations is necessary to ensure that
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 § 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 § 303.12 would be removed because the substance of the note would be reflected in proposed § 303.13(d). Proposed § 303.13(d) would clarify that the lists of early intervention services and personnel in proposed § 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 § 303.13(c) could provide early intervention services provided that the services otherwise met the requirements of this part.
Proposed § 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 § 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 § 303.16 (
Health services
) would be substantively unchanged from current § 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 § 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 § 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 § 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 § 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 § 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 § 303.344(e).
Proposed § 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 § 303.18 (
Include; including
) would remain substantively unchanged from current § 303.15.
Proposed § 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 § 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 § 303.20 (
Individualized family service plan
or
IFSP
) would incorporate the language from current § 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 § 303.420. The definition of
IFSP
also would provide that an IFSP is based on the evaluation and assessment described in proposed § 303.320, that it would include the content in proposed § 303.344, and that it would be developed under the IFSP procedures in proposed §§ 303.342, 303.343, and 303.345.
Proposed § 303.21(a) and (b) (
Infant or toddler with a disability
) would remain substantively unchanged from current § 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 § 303.16, would be included in proposed § 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 § 303.16 would be removed from the regulations. Note 2 following current § 303.16 would also be removed as the examples of at-risk infants or toddlers with disabilities would be incorporated into proposed § 303.5, the definition of
at-risk infant or toddler
.
Proposed § 303.21(b) would be substantively the same as current
§ 303.16(b), and would cross-reference the definition of an
at-risk infant or toddler
in proposed § 303.5.
Proposed § 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 § 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 § 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 § 303.24 (
Multidisciplinary
) would modify the definition in current § 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 § 303.25(a)(1) (
Native language
) would incorporate the definition of native language from section 602(20) of the Act and current § 303.401(b). Proposed § 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 § 303.25(b) would reflect the requirements in current § 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 § 303.26 (
Natural environments
) would remain substantively unchanged from current § 303.18, and would add that the natural environment may include the home, and must be consistent with proposed § 303.126.
Proposed § 303.27 (
Parent
) would modify the regulatory definition of that term in current § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 303.29 (
Personally identifiable
) would remain substantively unchanged from current § 303.401(c).
Proposed § 303.30 (
Public agency
) would remain substantively unchanged from current § 303.21.
Proposed § 303.31 (
Qualified personnel
) would remain substantively unchanged from the definition of
qualified
in current § 303.22. In addition, the note following current § 303.22 would be removed because the content of that note would be addressed in proposed § 303.13(c) regarding the types of qualified personnel who provide early intervention services and proposed § 303.119 regarding the requirement that statewide systems have policies and procedures in place relating to personnel standards.
Proposed § 303.32 (
Secretary
) would incorporate the definition of
Secretary
from section 602(28) of the Act.
Proposed § 303.33 (
Service coordination services
(
case management
)) would replace current § 303.23. Proposed § 303.33(a) would provide a definition of
service coordination services
and explain that these services include, consistent with current § 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 § 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 § 303.344(e). Proposed § 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 § 303.344(e).
Proposed § 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 § 303.33(b). Proposed § 303.33(b) would require service coordinators to be responsible for coordinating the performance of evaluations and assessments, facilitating
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 § 303.33(c) would incorporate the language from Note 2 following current § 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 § 303.510 regarding the payor of last resort. With this clarification, Note 2 following current § 303.23 would be removed.
Current § 303.23(c) (Employment and assignment of service coordinators) and (d) (Qualification of service coordinators) would not be included in proposed § 303.33 because, under proposed § 303.13(a)(7), service coordination services must be provided by qualified personnel as that term is defined in proposed § 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 § 303.23, and as addressed elsewhere in this preamble in the discussion related to proposed § 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 § 303.34 (
State
) would remain substantively unchanged from current § 303.24, and would reflect the definition of this term in section 602(32) of the Act.
Proposed § 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 § 303.36 (
Ward of the State
) would be added to these regulations to reflect the definition in section 602(36) of the Act. Proposed § 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 § 303.27.
Current § 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 §§ 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 § 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 § 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 §§ 303.100 and 303.140. Proposed § 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 § 303.101(a)(2) would modify current § 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 §§ 303.111 through 303.126.
The requirement in current § 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 § 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 §§ 303.200 through 303.212.
Current § 303.101, regarding how the Secretary disapproves a State's application, would be substantively included in proposed § 303.230.
Current §§ 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 § 303.208.
Current § 303.112, regarding public hearings, would be substantively included in proposed § 303.208(a)(1).
Current § 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 § 303.120(b) and (c) would be removed because the application requirements under Part C of the Act, including the assurances that meet the
requirements in section 637(b) of the Act, are referenced in proposed § 303.101(b). The assurance requirements in section 637(b) of the Act would be reflected in proposed §§ 303.221 through 303.227.
State Conformity With Part C of the Act and Abrogation of State Sovereign Immunity
Proposed § 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 § 303.103 would incorporate the provisions of section 604 of the Act regarding abrogation of State immunity. Proposed § 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 § 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 § 303.103(c), which incorporates section 604(c) of the Act, would provide that proposed § 303.103(a) and (b) applies to violations that occur in whole or in part after October 1990.
Equipment and Construction
Proposed § 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 § 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 § 303.110 would be substantively the same as current § 303.160, which refers to the minimum components of a statewide system, and would specifically reference the requirements in proposed §§ 303.111 through 303.126, which align with section 635(a)(1) through (16) of the Act.
Proposed § 303.111 would align with section 635(a)(1) of the Act and would replace current §§ 303.161 and 303.300. Proposed § 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 §§ 303.10 and 303.203(c).
Proposed § 303.111(a) would generally retain current § 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 § 303.300(a)(1) would be moved to proposed § 303.320(b)(2).
Proposed § 303.111(b) would generally retain the requirements of current § 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 § 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 § 303.300(c) would be removed because proposed § 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 § 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 § 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 § 303.320 regarding evaluation requirements and is addressed in the discussion of subpart D of these regulations.
Proposed § 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 § 303.113, which would align with section 635(a)(3) of the Act, would replace current § 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 § 303.113(b) would cross-reference the provisions in proposed § 303.320. These cross-references are necessary because the specific requirements for evaluations would be included in proposed § 303.320.
Proposed § 303.114 would generally retain the provisions in current § 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 § 303.167(c) would be removed because the requirements regarding IFSPs and natural environments would be included in proposed §§ 303.13(a)(8), 303.26, and 303.344(d)(1)(ii).
Proposed § 303.115, regarding a comprehensive child find system, would align with section 635(a)(5) of the Act and would replace current § 303.165. The provisions in current § 303.321 regarding a comprehensive child find system would be incorporated in proposed §§ 303.301 through 303.303, which would be cross-referenced in proposed § 303.115. Proposed § 303.115 would require each statewide system to have a comprehensive child find system that meets the requirements in proposed §§ 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.
Proposed § 303.116, regarding public awareness, would align with section 635(a)(6) of the Act and would replace current § 303.164. Proposed § 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 § 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 §§ 303.162 and 303.301(a). The provisions in current § 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 § 303.117. Proposed § 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 § 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 § 303.301(b), which includes the details of the content of the central directory and current § 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 § 303.301.
The note following current § 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 § 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 § 303.118, regarding the comprehensive system of personnel development (CSPD), would replace current §§ 303.168 and 303.360 to parallel the requirements and order of section 635(a)(8) of the Act. The introductory paragraph of proposed § 303.118 would combine the provisions in current § 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 § 303.118(a) would replace current § 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 § 303.118(a)(1) would retain the language in current § 303.360(c)(1) regarding training on innovative strategies to recruit and retain EIS providers. Proposed § 303.118(a)(2) would retain the language in current § 303.360(c)(2) regarding promoting the preparation of EIS providers who are fully and appropriately qualified. Under current § 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 § 303.118(a)(1) and (2) would be required to be included in the CSPD.
Proposed § 303.118(a)(3), regarding training personnel to coordinate transition services, would generally retain the language in current § 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 § 303.118(b)(1) would retain current § 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 § 303.118(b)(2) would replace current § 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 § 303.118(b)(3) would replace current § 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 § 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 § 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 § 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 § 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 § 303.119, regarding personnel standards, would combine current § 303.169 and relevant provisions in current § 303.361 to parallel the requirements of section 635(a)(9) of the Act.
Proposed § 303.119(a) would substantively retain language from current § 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 § 303.361(b)(2), proposed § 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 § 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 § 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 § 303.361(f).
Proposed § 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
§ 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 § 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 § 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 § 303.120, regarding supervision, monitoring, funding, interagency coordination, and other lead agency responsibilities would combine current §§ 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 § 303.120 would incorporate the requirement in section 635(a)(10) of the Act and current § 303.500 that each statewide system include a single line of responsibility in a lead agency designated or established by the Governor.
Proposed § 303.120(a)(1) through (a)(2)(iv) would remain substantively unchanged from current § 303.501(a) and (b)(1) through (b)(4), except that proposed § 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 § 303.120(a)(2)(iv) would align with proposed § 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 § 303.120(a)(2)(v), regarding the activities related to monitoring agencies, would reference the monitoring and enforcement requirements in proposed §§ 303.700 through 303.707 that the lead agency must meet in implementing the requirements of proposed § 303.120(a)(2)(i) through (iv).
Proposed §§ 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 § 303.707 would reference the authority under GEPA for monitoring and enforcement, including the imposition of special conditions in 34 CFR § 80.12. Proposed § 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 § 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 § 303.522(a)(1). Proposed § 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 § 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 § 303.511 because proposed § 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 § 303.121, regarding contracting or otherwise arranging for services, would replace the requirements in current §§ 303.175 and 303.526, consistent with section 635(a)(11) of the Act. Proposed § 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 § 303.121(a) would incorporate the provision in current § 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 § 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 § 303.5 already provides that EDGAR requirements, including part 80, apply to grant recipients under Part C of the Act. Current § 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 § 303.121.
The note following current § 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 § 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 § 303.526 would not provide additional information or clarity to proposed § 303.12.
Proposed § 303.122, regarding reimbursement procedures, would incorporate language from section 635(a)(12) of the Act and would remain substantively unchanged from current § 303.528, with cross-references updated.
Proposed § 303.123, which would incorporate language from section 635(a)(13) of the Act, would replace current § 303.170 and would require each statewide system to meet the procedural safeguard requirements in subpart E of these proposed regulations.
Proposed § 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 §§ 303.700 through 303.702 and proposed §§ 303.720 through 303.724. Proposed § 303.124 would require States to adopt data systems for reporting the data to the Secretary and would generally include the language in current §§ 303.176 and 303.540.
Consistent with the reporting requirements in sections 616 and 618 of the Act, proposed § 303.124(a) would
include language indicating that the statewide system must compile and report data that are timely and accurate to align with the reporting requirements in §§ 303.700 through 303.702 and 303.720 through 303.724. The references to timely and accurate reporting on State data in proposed § 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 § 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 §§ 303.701(c)(2) and 303.722(b).
Proposed § 303.125, regarding the Council, would incorporate the language in section 635(a)(15) of the Act and current § 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 § 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 §§ 303.12(b) and 303.344(d)(1)(ii).
Proposed § 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 § 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 § 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 § 303.200(a) would require each application to contain the specific requirements in proposed §§ 303.201 through 303.212, which would incorporate, respectively, the requirements in section 637(a)(1) through (11) of the Act. Proposed § 303.200(b) would require each application to contain assurances that the State has met the requirements under proposed §§ 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 § 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 § 303.142, consistent with section 637(a)(1) of the Act.
Proposed § 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 § 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 §§ 303.500 through 303.521 and are current as of the date of submission of the certification. Proposed § 303.202 would replace current § 303.143, consistent with section 637(a)(2) of the Act. Proposed § 303.202 cross-references proposed §§ 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 § 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 §§ 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 § 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 § 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 § 303.205(a) would be substantively the same as current § 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 § 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 § 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 § 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 § 303.205(c) would generally be the same as current § 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 § 303.501. Proposed § 303.205(d) would generally be the same as current § 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.
Proposed § 303.205(e) would be the same as current § 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 § 303.206 would be added to align with section 637(a)(6) of the Act. Proposed § 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 § 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 § 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 § 303.147.
Proposed § 303.208 would incorporate language from section 637(a)(8) of the Act and would combine requirements in current §§ 303.110, 303.112, 303.113(b), and 303.146. Proposed § 303.208(a)(1) would generally be the same as current § 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 § 303.208(b) would clarify that policies, procedures, and methods that are subject to the public participation requirements in proposed § 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 §§ 303.111 through 303.113 would be eliminated because States are required to comply with the public participation requirements of proposed § 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 § 303.208. These requirements provide sufficient opportunities for public comment.
Proposed § 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 § 303.148. The note following current § 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 § 303.209 and section 637(a)(9) of the Act, which identify the specific early childhood transition requirements.
Proposed § 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 § 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 § 303.211.
Proposed § 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 § 303.209(b) through (d).
Proposed § 303.209(a)(3)(i) would revise the language in current § 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 § 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 § 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 § 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 § 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 § 303.209(a)(4) would require that the State application must include any policy adopted by the State under proposed § 303.401(e).
Proposed § 303.209(b)(1) would include the requirement in current § 303.148(a) that each application include a description of how families will be included in the transition plan.
Proposed § 303.209(b)(2) would be similar to current § 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 § 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 § 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 § 303.209(b)(3) would clarify that if a State adopts a policy under proposed § 303.401(e), the lead agency's notification obligations under proposed § 303.209(b)(2)(i) and (ii) must be consistent with the policy. Proposed § 303.401(e) are discussed in subpart E of this preamble.
Proposed § 303.209(c) would retain the requirement in current § 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
Act that the toddler with a disability may receive.
Proposed § 303.209(c)(1), similar to current § 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 § 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 § 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 § 303.209(c)(2) would substantively be the same as current § 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 § 303.209(d)(1) would substantively include the provisions in current § 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 § 303.209(d)(2) would require the lead agency to establish a transition plan, as in current § 303.148(b)(4). Proposed § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 303.211, and clarify that this provision is subject to the pendency provision in proposed § 303.430(e).
Proposed § 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 § 303.211(b)(6) would provide, consistent with section 635(c)(2)(F) of the Act, that the transition timeline requirements in proposed § 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 § 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 § 303.211.
Proposed § 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 § 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
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 § 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 § 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 §§ 303.520 and 303.521.
Proposed § 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 § 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 § 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 §§ 303.221 through 303.227 would follow the order of the assurance requirements in section 637(b) of the Act.
Proposed § 303.220 would specify that each State application must include the assurances required in proposed §§ 303.221 through 303.227, which would reflect the requirements in section 637(b)(1) through (7) of the Act.
Proposed § 303.221, regarding the expenditure of funds, would reflect section 637(b)(1) of the Act and would retain the substance of current § 303.127, with cross-references updated.
Proposed § 303.222, requiring the State to comply with the payor of last resort requirements in subpart F of these proposed regulations, would replace current § 303.126. Current § 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 § 303.510.
Proposed § 303.223, regarding control of funds and property, is generally the same as and would replace current § 303.122 and incorporate the statutory provision in section 637(b)(3) of the Act. Proposed § 303.224, regarding reports and records, would substantively include the language in current § 303.121.
Proposed § 303.225, regarding the prohibition against commingling and supplanting, would combine current §§ 303.123 and 303.124 and the requirements in section 637(b)(5) of the Act. Proposed § 303.225(a) would replace current § 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 § 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 § 303.225(b)(1) would substantively include the language in current § 303.124(a) and (b). Proposed § 303.225(b)(1)(i) would require that Federal funds be used to supplement, and, in no case, supplant State and local funds. Proposed § 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 § 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 § 303.225(c) would incorporate the indirect cost requirements under Part C of the Act and under 34 CFR part 76.
Proposed § 303.226, which requires certain fiscal control and fund accounting procedures, would replace and substantively include the language in current § 303.125. Proposed § 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 § 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 § 303.228 would incorporate the language in section 637(d), (e), and (f) of the Act and is substantively the same as current § 303.100(b), (c), and (d). Proposed § 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 § 303.230 regarding the standard for disapproval of an application, would replace current § 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
§§ 303.231 through 303.236, that an application fails to comply with the requirements of this part.
Department Procedures
Proposed §§ 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 §§ 303.300 through 303.303. Evaluation and assessment requirements would be combined in proposed § 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 §§ 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 § 303.420, to align with section 639 of the Act regarding procedural safeguards.
Identification—Public Awareness, Child Find, and Referral
Proposed § 303.300(a) and (b), regarding a public awareness program, would incorporate language from current § 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 § 303.300(a) would also cross-reference proposed § 303.116, which would require a statewide system to have a public awareness program consistent with the provisions in proposed § 303.300. Consistent with section 635(a)(6) of the Act, proposed § 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 § 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 § 303.321(d)(2)(iii), which was removed, consistent with section 635(a)(6) of the Act. Proposed § 303.300(a)(2) would cross-reference proposed § 303.302(c) which defines the term
primary referral sources
for the purposes of subpart C. Notes 1 and 2 following current § 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 § 303.301, regarding a comprehensive child find system, would incorporate the requirements from current § 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 § 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 § 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 § 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 § 303.302, regarding referral procedures, and proposed § 303.303, regarding screening procedures.
Proposed § 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 § 303.321(a)(2) would be removed as redundant with proposed § 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 § 303.604(a)(3), regarding the Council's advisory role.
Proposed § 303.301(b) would incorporate current § 303.321(a)(2), which identifies the lead agency as the agency responsible for implementing a comprehensive child find system. Proposed § 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 § 303.301(b)(1) would cross-reference the provisions in proposed § 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 § 303.301(b)(2) would replace current § 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 § 303.301(c) would incorporate the requirements of current § 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 § 303.211.
Proposed § 303.302, regarding referral procedures, would require that the referral of a child under proposed § 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 § 303.321(d)(2)(ii), which requires the referral to occur within two
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 § 303.302(a)(2)(i), specifically, regarding whether a different timeframe or approach is more appropriate.
Proposed § 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 § 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 § 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 § 303.302(c) would incorporate the definition of “primary referral sources” in current § 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 § 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 § 303.321(e) would be replaced by those in proposed § 303.320(e). The Note following current § 303.321 would be removed as it does not reflect a regulatory requirement and is therefore not necessary.
Proposed § 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 § 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 § 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 § 303.303.
Proposed § 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 § 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 § 303.303(a)(3), consistent with current § 303.403, would require the lead agency to provide the parent with notice under proposed § 303.421 that it is declining to conduct an evaluation. The notice requirement in proposed § 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 § 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 § 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 § 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 § 303.303(a)(1).
Proposed § 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 § 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 § 303.320 would combine the requirements from current §§ 303.300(b), 303.322, and 303.323 and section 636(a)(1) and (2) of the Act. Proposed § 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 § 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 § 303.21. Proposed § 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 § 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 § 303.320, regarding the child's level of functioning in the developmental areas identified in proposed § 303.21(a)(1). The nondiscriminatory procedures in current § 303.323 would be incorporated into proposed § 303.320(a)(3).
Proposed § 303.320(b)(1) would incorporate the procedures for the assessment of a child found in current §§ 303.322(b)(2), 303.322(c)(2), and 303.323(c). Proposed § 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 § 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 § 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 § 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 § 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 § 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 § 303.320(b)(2) as previously discussed.
With respect to the procedures for the assessment of a family, proposed § 303.320(c) would combine the requirements of section 636(a)(2) of the Act and current §§ 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,
if existing records contain reliable information, and establish eligibility for services under Part C of the Act.
Proposed § 303.320(d) would clarify, consistent with section 636(a)(1) of the Act and current § 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 § 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 § 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 § 303.320(b)(1).
Current §§ 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 § 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 § 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 § 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 § 303.340 would be incorporated into the definition of IFSP in proposed § 303.20. Proposed § 303.340 would cross-reference the definition in proposed § 303.20 and would require that the IFSP for an infant or toddler with a disability meet the requirements in proposed §§ 303.342 through 303.345.
Proposed § 303.342(a) through (d), regarding procedures for IFSP development, review, and evaluation would be substantively unchanged from current § 303.342(a) through (d), with the cross-references updated. Proposed § 303.342(e) would be substantively unchanged from current § 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 § 303.420. The note following current § 303.342 would be removed as it does not reflect a regulatory requirement and is therefore not necessary.
Proposed § 303.343, regarding IFSP team meetings and periodic reviews, would be substantively unchanged from current § 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 § 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 § 303.344(a), regarding content of an IFSP, would be substantively unchanged from current § 303.344(a), except that proposed § 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 § 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 § 303.344(a)(2), which refers to professionally acceptable objective criteria, would be removed. Proposed § 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 § 303.344(b) would be substantively unchanged from current § 303.344(b). Proposed § 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 § 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 § 303.344(d)(1) would incorporate language from section 636(d)(4) of the Act, which requires that
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 § 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 § 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 § 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 § 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 § 303.344(d)(2) would define the terms
frequency and intensity, method, length,
and
duration
for purposes of proposed § 303.344(d)(1)(i). Proposed § 303.303(d)(2)(i) regarding the definition of
frequency and intensity
would be substantively the same as current § 303.344(d)(2)(i) except that proposed § 303.344(d)(2)(iii) would include a definition of
length,
consistent with section 636(d)(6) of the Act. Proposed § 303.303(d)(2)(ii), regarding the definition of
method,
would incorporate current § 303.344(d)(2)(ii). Proposed § 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 § 303.344(d)(3), regarding the definition of
location,
would incorporate the language in current § 303.344(d)(3).
Proposed § 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 § 303.344(e) would remove the requirement in current § 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 § 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 § 303.344(e) would incorporate current § 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 § 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 § 303.344(e)(2) would be removed as unnecessary. The substance of current § 303.344(e)(2) would be included in proposed § 303.16(c)(3), in the definition of
health services.
Proposed § 303.344(f) would be substantively unchanged from current § 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 § 303.344(g)(1) and (3) would be retained in proposed § 303.344(g). Proposed § 303.344(g)(1) is intended to provide guidance to the State in the identification of the service coordinator on the IFSP. Current § 303.344(g)(2) would be removed, to align proposed § 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 § 303.23 and proposed § 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 § 303.344(g)(3) would be renumbered as proposed § 303.344(g)(2).
Proposed § 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 § 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 § 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 § 303.344(h). The remainder of current § 303.344(h) would be amended and renumbered consistent with section 636 of the Act. The notes following current § 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 § 303.344(e).
Proposed § 303.345 would be substantively unchanged from current § 303.345, with cross-references updated. The first part of the note after current § 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
intervention service is identified for an infant or toddler with a disability and the other conditions of proposed § 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 § 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 § 303.346 would retain current § 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 §§ 303.360 and 303.361 would be moved to subpart B of the proposed regulations in §§ 303.118 and 303.119 to align with section 635 of the Act. The note following current § 303.361, regarding State flexibility to identify specific occupation categories, would be removed as unnecessary, because proposed §§ 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 § 303.400(a) would substantially retain the language in current § 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 § 303.400(b) would be substantially the same as current § 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 §§ 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 §§ 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 §§ 303.403 through 303.406.
The dispute resolution options in proposed §§ 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 §§ 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 § 303.401 would combine current §§ 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 § 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 §§ 303.401 and 303.402.
Proposed § 303.401(b) would remain substantively unchanged from current § 303.402, except that, instead of referencing the confidentiality provisions from Part B of the Act, proposed § 303.401(b) references proposed §§ 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 § 303.401(b)(1) would clarify that the Part C confidentiality provisions are consistent with, but broader than, the provisions under FERPA.
Proposed § 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 § 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 § 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 §§ 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 § 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 §§ 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 §§ 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 § 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.
In addition, proposed § 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 § 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 § 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 § 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 § 303.420(a) and (b), regarding parental consent and notice, would be substantively unchanged from current § 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 § 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 § 303.320, before the provision of early intervention services, prior to the use of the parent's public or private insurance under proposed § 303.520, and prior to the exchange of personally identifiable information consistent with proposed § 303.401.
The term “initial” in current § 303.404(a)(1) would not be included in proposed § 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 § 303.420(b) would be unchanged from current § 303.404(b) regarding the lead agency's responsibilities if the parent does not provide consent.
Proposed § 303.420(c) would be added to include the language of Note 2 following current § 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 § 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 § 303.404 would be included where applicable in proposed § 303.420; and the substance of Note 1, regarding personably identifiable information, would be included in proposed § 303.401(c).
Proposed § 303.420(d) would incorporate the requirements in section 639(a)(3) of the Act and current § 303.405, and clarify the parent's right to accept or decline any early intervention service at any time.
Proposed § 303.421, regarding prior written notice, would be substantively unchanged from current § 303.403 and would incorporate section 639(a)(6) and (7) of the Act. Proposed § 303.421(c) would be substantively unchanged from current § 303.403(c) except that the provisions in current § 303.403(c)(3) would be moved to the definition of
native language
in proposed § 303.25.
Surrogate Parents
Proposed § 303.422, regarding surrogate parents, would be substantively unchanged from current § 303.406, except proposed §§ 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 § 303.422(a)(2), rather than the term “discover the whereabouts” used in current § 303.406(a)(2). “Locate” as used in proposed § 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 § 303.27, before assigning a surrogate parent.
Proposed § 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 § 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.
Current § 303.406(d)(1) would be removed because it would be redundant with proposed § 303.422(c)(2)(i). Proposed § 303.422(e) would be substantively unchanged from current § 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 § 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 §§ 303.419, 303.420 through 303.425, and 303.510 through 512, respectively.
Proposed § 303.430(b) would clarify that each lead agency must make mediation available as required in proposed § 303.431, and would incorporate language from sections 615(e) and 639(a)(8) of the Act and current § 303.419.
Proposed § 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 § 303.510, that each lead agency adopt written State complaint procedures that meet the requirements in proposed §§ 303.432 through 303.434 to resolve any complaints filed by any party regarding any violation of this part.
Proposed § 303.430(d) would continue to allow lead agencies the option of using the Part C due process hearing procedures under proposed §§ 303.435 through 303.439, or the Part B due process hearing procedures under proposed §§ 303.440 through 303.449 (with the option of adopting either a 30-day or 45-day timeline).
Proposed § 303.430(e)(1) and (2) would incorporate the pendency language in section 639(b) of the Act and current § 303.425 regarding the services that must be provided during the pendency of a due process complaint. Proposed § 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 § 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 § 303.211(b)(4). Proposed § 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 § 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 § 303.431, regarding mediation, would remain substantively unchanged from the current § 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 § 303.431(a). Proposed § 303.431(b) would include the requirements in current § 303.419(b).
Additionally, proposed § 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 agree
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