Early Intervention Program for Infants and Toddlers With Disabilities

DEPARTMENT OF EDUCATION

34 CFR Part 303

RIN 1820-AB59

Early Intervention Program for Infants and Toddlers With Disabilities

AGENCY:

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

ACTION:

Final regulations.

SUMMARY:

The Secretary issues final regulations governing the Early Intervention Program for Infants and Toddlers with Disabilities. These regulations are needed to reflect changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 (Act or IDEA).

DATES:

These regulations are effective on October 28, 2011.

FOR FURTHER INFORMATION CONTACT:

Alexa Posny, U.S. Department of Education, 550 12th Street, SW., Potomac Center Plaza, room 5107, Washington, DC 20202-2641.

Telephone:

(202) 245-7605. If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay System (FRS) at 1-800-877-8339. Individuals with disabilities may obtain this document in an alternative format (

e.g.,

braille, large print, audiotape, or computer diskette) upon request to the contact person listed under

FOR FURTHER INFORMATION CONTACT

.

SUPPLEMENTARY INFORMATION:

These regulations implement changes in the regulations governing the Early Intervention Program for Infants and Toddlers with Disabilities necessitated by the reauthorization of the IDEA.

On May 9, 2007, the U.S. Department of Education (the Department) published a notice of proposed rulemaking in the

Federal Register

(72 FR 26456) (NPRM) to amend the regulations governing the Early Intervention Program for Infants and Toddlers with Disabilities. In the preamble to the NPRM, the Secretary discussed, on pages 26456 through 26496, the changes proposed to the regulations for this program, which regulations are set forth in 34 CFR part 303.

In these regulations, the Department is amending and finalizing the regulations proposed in the May 2007 NPRM, except in the maintenance of effort (MOE) provisions (proposed § 303.225) (which implement part C's supplement not supplant requirements). The Department plans to obtain additional public input and conduct further rulemaking in this area.

Due to the economic changes that many States have experienced since the publication of the NPRM in May 2007, the Department has received many informal inquiries requesting guidance on the MOE provisions in the part C regulations (which implement the supplement not supplant requirements under part C of the Act). States also have expressed concern about their ability to meet the MOE requirements and their continued participation in the part C program. In response to these concerns, the Department intends to issue a separate NPRM and seek input from the public on the MOE provisions. Accordingly, these final regulations continue in § 303.225 the MOE requirements in current § 303.124.

Major Changes in the Regulations

The following is a summary of the major changes in these final regulations from the regulations proposed in the NPRM (the rationale for each of these changes is discussed in the

Analysis of Comments and Changes

section of this preamble):

Subpart A—General

Definitions

• The definition of

multidisciplinary

in § 303.24 has been revised with respect to the individualized family service plan (IFSP) Team composition to require the parent and two or more individuals from separate disciplines or professions with one of these individuals being the service coordinator.

• Revised § 303.25(a) and new § 303.321(a)(5) and (a)(6) clarify that in the case of a child who is limited English proficient,

native language

means the language normally used by the parents of the child except that when conducting evaluations and assessments of the child, qualified personnel determine whether it is developmentally appropriate to use the language normally used by the child. Additionally, we have removed the requirement in proposed § 303.25(a)(2) that the native language of the parents be used in all direct contact with the child.

• We have revised the definition of

personally identifiable information

in § 303.29 to cross-reference, with appropriate modifications, the definition of that same term contained in the regulations under the Family Educational Rights and Privacy Act (FERPA) in 34 CFR 99.3, as amended.

• New § 303.32 adds to these regulations a definition of

scientifically based research,

which cross-references, with appropriate modifications, the definition of the same term contained in section 9101(37) of the Elementary and Secondary Education Act of 1965, as amended (ESEA).

Subpart C—State Application and Assurances

Application Requirements

• Section 303.203(b)(2) clarifies that the State's application must include, as part of coordination of all resources, those methods the State uses to implement the payor of last resort requirements in § 303.511.

• Revised § 303.208(b), regarding public participation policies and procedures, requires lead agencies to hold public hearings, provide at least 30 days' prior notice for the hearings, and provide a public comment period of at least 30 days before adopting any new or revised part C policies or procedures.

• Revised § 303.209(b)(1)(i) (proposed § 303.209(b)(2)(i)) requires that, for toddlers with disabilities who may be eligible for preschool services under part B of the Act, the lead agency notify (consistent with any opt-out policy adopted by the State under § 303.401(e)), not only the local educational agency (LEA) where the toddler resides, but also the State educational agency (SEA), and revise the timeline for the notification to occur not fewer than 90 days before the toddler's third birthday.

• New § 303.209(b)(1)(ii) clarifies that if the lead agency determines a child to be eligible for part C services between 45 and 90 days prior to the toddler's third birthday, the lead agency must notify (consistent with any opt-out policy adopted by the State under § 303.401(e)), not only the LEA where the toddler resides, but also the SEA, as soon as possible after the toddler's eligibility determination.

• New § 303.209(b)(1)(iii) provides that if a child is referred to the lead agency fewer than 45 days before that toddler's third birthday, the lead agency is not required to conduct the initial evaluation, assessment, or IFSP meeting, and if that child may be eligible for preschool services or other services under part B of the Act, the lead agency, with the parental consent required under § 303.414, must refer the toddler to the SEA and appropriate LEA.

• Revised § 303.209(d)(2) clarifies that the transition plan is not a separate document, but is included in the IFSP.

• New § 303.209(e) clarifies that a transition conference under § 303.209(c) or meeting to develop the transition plan under § 303.209(d) must meet the

IFSP meeting requirements in §§ 303.342(d) and (e) and 303.343(a) and that this conference and meeting may be combined.

• New § 303.209(f) clarifies when and what transition requirements in § 303.209 apply to toddlers with disabilities, including toddlers in a State that elects to offer part C services beyond age three under § 303.211.

• Revised § 303.211(b)(6) clarifies the transition requirements that apply to children receiving services under § 303.211 as they transition to preschool, kindergarten or elementary school.

• Proposed § 303.225 has been revised to include the MOE requirements in current § 303.124. The Department intends to issue an NPRM on the MOE provisions and provide an opportunity for the public to comment on the proposed rule.

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

General

• New § 303.300 identifies the major components of the statewide comprehensive, coordinated, multidisciplinary interagency system by specifically distinguishing between pre-referral activities (public awareness and child find), referral, and post-referral IFSP activities (including screening, evaluations, assessments, and IFSP development, review, and implementation).

Pre-Referral Procedures

• Revised § 303.301(c) (proposed § 303.300(c)) requires each lead agency, as part of its public awareness obligation, to provide for informing parents of toddlers about preschool programs under section 619 of the Act not fewer than 90 days prior to the toddler's third birthday.

• Revised new § 303.302(c)(1)(ii) (proposed § 303.301(c)(1)(ii)) adds the following two programs to the list of programs with which the lead agency must coordinate its child find efforts: (1) The Children's Health Insurance Program (CHIP) and (2) the State Early Hearing Detection and Intervention (EHDI) system. Since the publication of the May 2007 NPRM, the name of the State Children's Health Insurance Program (S-Chip) was changed to the “Children's Health Insurance Program (CHIP).” This change is reflected in these final regulations.

• Revised § 303.303(a)(2)(i) requires primary referral sources to refer a child to the part C program “as soon as possible but in no case more than seven days” after identification.

Post-Referral Procedures

• New § 303.310 (proposed § 303.320(e)(1)) requires that, within 45 days after the lead agency or early intervention service (EIS) provider receives a referral of a child, the screening (if applicable), initial evaluation, initial assessments (of the child and family), and the initial IFSP meeting for that child must be completed (45-day timeline).

• New § 303.310(b)(2) adds an exception to the 45-day timeline if the parent has not provided consent to the initial screening, evaluation, or assessment of the child, despite documented, repeated attempts to obtain parental consent. Revised § 303.310(c) (proposed § 303.320(e)(2)) requires the lead agency to ensure completion of the initial evaluation, assessments, and IFSP meeting as soon as possible after parental consent is provided.

• Revised § 303.320 (proposed § 303.303) requires the lead agency to provide notice to parents of its intent to screen and clarifies that, at any time during the screening process, a parent may request an evaluation.

• Revised § 303.321(a)(2)(i) (proposed § 303.320) clarifies that (1) the term

initial evaluation

refers to the evaluation of a child that is used to determine his or her initial eligibility under part C of the Act and (2) the term

initial assessments

refers to the assessment of the child and the family assessment that are conducted prior to the child's first IFSP meeting.

• New § 303.322 clarifies that the prior written notice requirements in § 303.421 apply when the lead agency determines, after conducting an evaluation, that a child is not an infant or toddler with a disability.

• Revised § 303.342(e) requires early intervention services to be provided as soon as possible after parental consent.

Subpart E—Procedural Safeguards

Confidentiality of Personally Identifiable Information and Early Intervention Records

• New § 303.404(d) requires that the general notice provided to parents by the lead agency specify the extent to which that notice is provided in the native languages of the various population groups in the State.

• Section 303.405(a), regarding a parent's rights to inspect and review any early intervention records and the timeline the lead agency must follow any time a parent makes such a request, is revised to require that the participating agency must comply with a parent's request without unnecessary delay and in no case more than 10 days after the parent makes the request to inspect and review records.

• New § 303.409(c) requires the participating agency to provide at no cost to the parent, a copy of each evaluation, assessment of the child, family assessment, and IFSP as soon as possible after each IFSP meeting.

• Section 303.414(b) sets forth the specific exceptions to the parental consent required before a participating agency may disclose personally identifiable information under these regulations.

• Proposed § 303.414(d), regarding limited disclosures of personally identifiable information in early intervention records that may be sought by Protection and Advocacy (P&A) agencies, has been removed.

Parental Consent and Surrogate Parents

• Section 303.420(c) is revised to indicate that a lead agency may not use the due process hearing procedures under this part or under part B of the Act to challenge a parent's refusal to provide any consent required under § 303.420(a), which includes consent for evaluations and assessments.

• New § 303.422(g), concerning lead agency responsibility concerning surrogate parents, adds a 30-day timeline requirement regarding the lead agency's obligation to make reasonable efforts to ensure the assignment of a surrogate parent after a public agency determines that the child needs a surrogate parent.

Dispute Resolution Options

• New § 303.437(c) permits the due process hearing officer, in a State that elects to adopt the part C due process hearing procedures under § 303.430(d)(1), to grant specific extensions of time beyond the 30-day timeline at the request of either party.

• Section 303.446 is revised to permit, but not require, the lead agency to establish procedures that would allow any party aggrieved by the findings and decision in the due process hearing to appeal to, or request reconsideration of the decision by, the lead agency.

Subpart F—Use of Funds and Payor of Last Resort

• Section 303.520(a) establishes three new requirements that are designed to provide important protections for parents of infants and toddlers with disabilities balanced against the need for States to have access to public benefits and public insurance to finance part C services while implementing the system of payments, coordination of

funding sources, and payor of last resort requirements under part C of the Act. Under this section, a State must obtain a parent's consent prior to requiring a parent to enroll in a public benefits or insurance program or if the use of funds from a public benefits or insurance program imposes certain costs on the parent. This section also requires a State to provide written notice to parents of applicable confidentiality and no-cost protections if the State lead agency or EIS provider or program uses public benefits or insurance to pay for part C services.

• Section 303.521(a) is revised to provide that the State's system of payments policies must include the State's definition of ability to pay and indicate when and how the agency makes its determination regarding the parent's ability or inability to pay.

• A new § 303.521(e) is added to address a parent's procedural safeguard rights under a State's system of payments.

Subpart G—State Interagency Coordinating Council

• Proposed § 303.601(a), which states that a parent member on the Council may not be an employee of a public or private agency involved in providing early intervention services, has been removed.

• New § 303.605(c) permits the Council to coordinate and collaborate with the State Advisory Council on Early Childhood Education and Care, which is required to be established by States under the Improving Head Start for School Readiness Act of 2007.

Subpart H—Federal and State Monitoring and Enforcement; Reporting; and Allocation of Funds

• Section 303.702(b) has been revised to indicate that the State annual reporting to the public, on the performance of each EIS program in relation to the State's Annual Performance Report (APR) targets must be “as soon as practicable but no later than 120 days” following the State's APR submission to the Secretary.

These final regulations contain additional changes from the NPRM that we explain in the following

Analysis of Comments and Changes.

Analysis of Comments and Changes

Introduction

In response to the invitation in the NPRM, more than 600 parties submitted comments on the proposed regulations. An analysis of the comments and of the changes in the regulations since publication of the NPRM immediately follows this introduction. The perspectives of parents, individuals with disabilities, early intervention providers, State and local officials, members of Congress, and others were useful in helping identify where changes to the proposed regulations should be made, and in formulating many of the changes. In light of the comments received, a number of significant changes are reflected in these final regulations.

Substantive issues are discussed under their corresponding subpart. References to subparts in this analysis are to those contained in the final regulations. The analysis generally does not address—

(a) Minor changes, including technical changes made to the language published in the NPRM;

(b) Suggested changes the Secretary is not legally authorized to make under applicable statutory authority; and

(c) Comments that express concerns of a general nature about the Department or other matters that are not directly relevant to these regulations, including requests for information about innovative early intervention methods or matters that are within the purview of State and local decision-makers.

Subpart A—General

Purpose and Applicable Regulations

Purpose of the Early Intervention Program for Infants and Toddlers With Disabilities (§ 303.1)

Comment:

A few commenters recommended revising the title of § 303.1 to replace “early intervention program” with “early intervention system.” These commenters stated that the word “system” is consistent with the language in the Act, other recent regulatory changes, and the intent of coordinated interagency efforts.

Discussion:

The title of this section refers to the overall purposes of the Federal early intervention program that the Department administers under part C of the Act and is being implemented through these regulations. The term is not intended to refer to the early intervention systems that States must develop and implement under part C of the Act. Therefore, the title of this section has not been changed.

Changes:

None.

Purpose of the Early Intervention Program for Infants and Toddlers With Disabilities (§ 303.1(d))

Comment:

One commenter suggested that the list of historically underrepresented populations in § 303.1(d) be revised to include infants and toddlers with disabilities who are wards of the State and homeless children. Other commenters recommended that we include infants and toddlers in foster care in this list.

Discussion:

The historically underrepresented populations listed in § 303.1(d) are the same as those listed in section 631(a)(5) of the Act, which refers to the need to enhance capacity to identify, evaluate, and meet the needs of all children, including historically underrepresented populations, particularly minority, low-income, inner-city, and rural children, and infants and toddlers in foster care.

The list in § 303.1(d) is not exhaustive. Rather, this list provides examples of historically underrepresented populations, for whom State and local agencies and EIS providers need to improve services. For this reason, including children who are wards of the State and homeless children in § 303.1(d) is not necessary. We also note that other sections of the Act and these regulations identify specific child find and other responsibilities of States for identifying, evaluating, and meeting the needs of children who are homeless and wards of the State. For example, § 303.101(a)(1)(ii) through (a)(1)(iii) requires a State, as a condition of receiving part C funds, to provide an assurance that the State has adopted a policy to make appropriate early intervention services available to infants and toddlers with disabilities who are homeless and their families and infants and toddlers with disabilities who are wards of the State.

Concerning the specific comment that infants and toddlers in foster care should be included in the list, we note that the list in § 303.1(d) already includes “infants and toddlers in foster care.”

Changes:

None.

Eligible Recipients of an Award and Applicability of This Part (§ 303.2)

Comment:

One commenter indicated that tribal programs and tribal governments should be included in the list of eligible recipients of an award in § 303.2.

Discussion:

Section 303.2 provides that the Secretary of the Interior is an eligible recipient of funds under part C of the Act. Under section 643(b)(2) of the Act, the Department of Interior, through the Bureau of Indian Education, distributes part C funds to Indian entities that are eligible to receive services and funding from the United States. Under section 643(b)(1) of the Act, the Department must distribute part C funds that are used by tribal programs and governments to the Secretary of the

Interior and not directly to tribal programs and governments. Therefore, it would be inappropriate to list these entities as eligible recipients.

Changes:

None.

Applicable Regulations (§ 303.3)

Comment:

Some commenters expressed concern with and were confused by the multiple terms used to refer to early intervention records across the subparts. The commenters noted, for example, that the proposed regulations use the terms “part C records,” “early intervention records,” “education records,” and “the records.”

Discussion:

We agree that using multiple terms to refer to early intervention records is confusing and, therefore, we have changed all references to “part C records,” “education records,” and “the records” in this part to “early intervention records.” Additionally, we have added paragraph (b)(2) to § 303.3 to indicate that any reference to “records” or “education records” in the applicable regulations means the early intervention records under this part.

Changes:

We have changed all references to “part C records,” “education records,” and “the records” in this part to “early intervention records.” Consequently, the reference to “part C records” in § 303.401(b)(2), regarding confidentiality procedures and the parents' opportunity to inspect and review all part C records, has been changed to “part C early intervention records.” Also, the proposed phrase “education records” has been changed to “early intervention records” in § 303.403(b), regarding the definition of early intervention records; § 303.405(a), regarding parents' right to access such records; § 303.405(b), regarding what the right to inspect and review early intervention records includes; § 303.406, regarding the record of access; § 303.407, regarding records on more than one child; § 303.408, regarding the requirement that agencies must provide parents, upon request, a list of the types and locations of early intervention records collected, maintained, or used by the agency; § 303.410(a), regarding amendment of records at the parents' request; and § 303.411, regarding the opportunity for a hearing to challenge information in early intervention records.

Finally, the references to “the records” in the following regulations have been replaced with “early intervention records”: § 303.7(b), regarding the definition of consent; § 303.310(c)(1), regarding the documentation of exceptional circumstances that may delay the evaluation and initial assessment of a child; § 303.405(b)(1), regarding parents' right to a response to reasonable requests for explanations and interpretations of early intervention records; § 303.405(b)(2), regarding parents' right to request that a participating agency provide copies of early intervention records; § 303.405(b)(3), regarding parents' right to have a representative of the parents inspect and review the early intervention records; § 303.406, regarding the maintenance of a record of parties obtaining access to early intervention records; § 303.412(b), regarding the right of parents to place a statement commenting on information or disagreeing with the decision of the agency following a hearing to challenge information in early intervention records; § 303.412(c), regarding the maintenance of any such explanation in the child's record; § 303.412(c)(1), regarding the length of time any explanation must be maintained as part of the early intervention records; § 303.412(c)(2), regarding the disclosure of any explanation placed in the early intervention records, and § 303.414(b)(2) regarding the modification provisions in applying the exceptions under FERPA to the part C program.

Additionally, we have added § 303.3(b)(2) to indicate that any reference to “education records” in EDGAR means “early intervention records” under this part.

Eligible Recipients of an Award (Proposed § 303.2) and Limitation on Eligible Children (Current § 303.4)

Comment:

Many commenters opposed our proposal to remove current § 303.4, which provides that part 303 does not apply to any child with a disability who is receiving a free appropriate public education (FAPE), in accordance with the part B regulations in 34 CFR part 300. The commenters stated that this long-standing provision was an important component of State EIS systems for children who are transitioning from services under part C of the Act to services under part B of the Act. One commenter suggested retaining current § 303.4 because the regulation helped to clarify that children receiving part C services do not also receive FAPE under part B of the Act. The commenter also indicated that it is important to clarify to whom the part C regulations apply.

Discussion:

We agree with the commenters and have included the language from current § 303.4 in a new paragraph (b) under § 303.2 to clarify that the regulations in part 303 do not apply to a child with a disability who is receiving FAPE under part B of the Act.

We also have modified this provision to identify the entities that must comply with part 303. Part 303 applies to the lead agency and any EIS provider that is part of the part C statewide system of early intervention required of each State in sections 634 and 635 of the Act, regardless of whether the EIS provider receives funds under part C of the Act. part 303 also applies to each child referred to part C, as well as to infants and toddlers with disabilities (

i.e.,

children determined eligible for services under part C of the Act) and the families of these children, consistent with the definitions of

child

in § 303.6 and

infant or toddler with a disability

in § 303.21.

Changes:

We have revised the title of § 303.2 to read “Eligible recipients of an award and applicability of this part.” We have added a new paragraph (b) to provide that the provisions of part 303 apply to the lead agency and any EIS provider that is part of the part C statewide system of early intervention services, regardless of whether that EIS provider receives funds under part C of the Act, and to all children referred to the part C program and infants and toddlers with disabilities and their families. New paragraph (b) also provides that part 303 does not apply to a child with a disability receiving a free appropriate public education or FAPE under 34 CFR part 300.

At-Risk Infant or Toddler (§ 303.5)

Comment:

Two commenters supported the proposed definition of

at-risk infant or toddler

in § 303.5. Other commenters recommended revising the definition to expand the list of factors that could cause an infant or toddler to be considered at-risk. The suggested factors included exposure to lead paint, alcohol abuse, fetal alcohol syndrome, abandonment, post-natal drug exposure, homelessness, and family violence. One commenter suggested the list of factors be preceded by the phrase “including, but not limited to.”

Discussion:

The list of factors that may contribute to an infant or toddler being considered at-risk for a developmental delay included in § 303.5 is not meant to be exhaustive. We have not expanded this list further because § 303.5 provides a sufficient number and range of factors that a State may include in its definition of

at-risk infant or toddler

for each State to understand the scope of the regulation. Further, § 303.5 provides discretion and flexibility for each State to define

at-risk infant or toddler

and determine the factors that may contribute to an infant or toddler being considered at-risk for a

developmental delay in light of the unique needs of the State's at-risk population. Therefore, revising the definition of

at-risk infant or toddler

to expand the list of factors included in the definition is not necessary.

For clarity, we have replaced the phrase “such as,” which precedes the list of factors, with the word “including.” We note that the definitions of

include

and

including

in § 303.18 clarify that the items named in a particular list are not all of the possible items that are covered, whether like or unlike the ones named. This change clarifies that the list of factors is not exhaustive.

Changes:

We have replaced the phrase “such as” with the word “including.”

Comment:

A few commenters expressed concern that Federal funding of part C of the Act is not sufficient to serve at-risk infants and toddlers and that the inclusion of § 303.5 may give parents the impression that early intervention services are available for at-risk infants and toddlers, when these services are not always available.

Discussion:

The statute permits, but does not require, States to offer services to at-risk infants and toddlers. A definition of

at-risk infant or toddler

is necessary to guide implementation by States that choose to provide early intervention services to at-risk infants and toddlers. If a State chooses to provide these services, the State, pursuant to § 303.204(a), must provide a definition of at-risk infant or toddler and a description of the services available to these children in the information the lead agency provides to parents and primary referral sources through the State's public awareness program, as required under § 303.301. For those States that choose to provide part C early intervention services to at-risk infants and toddlers, the definition of

at-risk infant or toddler

in § 303.5, which aligns with the statutory definition, provides the information States need to meet the part C requirements.

Changes:

None.

Comment:

None.

Discussion:

As proposed, the definition of

at-risk infant or toddler

provided that, at the State's discretion, an at-risk infant or toddler may include an infant or toddler who is at risk of experiencing developmental delay because of biological

and

environmental factors, including those listed in the proposed definition. We have determined that this language should be clarified to provide that the term

at-risk infant or toddler

may include an infant or toddler who is at risk of experiencing developmental delays due to biological

or

environmental factors. We have made this change to clarify that States are not required to ensure that an at-risk infant or toddler is at risk due to meeting both types of factors.

Changes:

We have replaced the phrase “biological and environmental” with “biological or environmental” in the definition of

at-risk infant or toddler.

Child (§ 303.6)

Comment:

One commenter expressed concern that the definition of

child

in § 303.6 could be misinterpreted to mean that an infant or toddler under age three would not meet the definition. Another commenter stated that § 303.6 should not be included in the regulations because there is no requirement that early intervention programs serve children over the age of three.

Discussion:

The term

child,

as used in part C of the Act, means an individual under the age of six. This is a broad definition that includes children with or without disabilities under the age of three (including infants and toddlers with disabilities) and children with or without disabilities ages three and older. While the commenter is correct that States are not required to provide early intervention services under part C of the Act to a child over the age of three, a State may elect, under § 303.211, to make early intervention services available to children ages three and older who are eligible for services under section 619 of the Act and previously received early intervention services under § 303.211 until the child enters, or is eligible under State law to enter, kindergarten or elementary school. Nothing in § 303.6 or these regulations requires a State to serve children with disabilities beyond age three under part C of the Act.

Additionally, requirements in these regulations, such as the evaluation and assessment requirements in § 303.321, apply to a child who is referred to the State part C program but is determined not to be eligible as an infant or toddler with a disability. Thus, including a definition of

child

in the regulations is necessary, and this definition is clear in its inclusion of infants and toddlers under the age of three.

Changes:

None.

Developmental Delay (§ 303.10)

Comment:

A few commenters suggested amending the definition of

developmental delay.

One commenter recommended that the definition be revised to specifically reference infants and toddlers with mild disabilities. Another commenter recommended that the regulations clarify that any definition of developmental delay that the State adopts in response to public comments should not exclude from eligibility children who are eligible under the State's pre-existing definition of developmental delay.

Discussion:

These comments are addressed in our discussion of the comments on § 303.111.

Changes:

None.

Early Intervention Service Program (§ 303.11) and Early Intervention Service Provider (§ 303.12)

Comment:

A few commenters expressed concern with the use of the term

early intervention service program

throughout the proposed regulations. One commenter suggested that the terms “early intervention service program” (EIS program) and “early intervention service provider” (EIS provider) were not used consistently throughout the proposed regulations, that the use of these terms was confusing, that the terms were sometimes used incorrectly, and that the terms did not align with the reporting requirements outlined in §§ 303.700 through 303.702. Another commenter recommended changing all references to “EIS” in the regulations to “EI” because “EIS” is a term used in part B of the Act and has a different meaning under the part B regulations.

Discussion:

We do not agree that the terms “early intervention service program” and “early intervention service provider” are used inconsistently or incorrectly throughout the regulations, or that the terms do not align with the reporting requirements outlined in §§ 303.700 through 303.702. An

early intervention service program,

as defined in § 303.11, is the entity designated by the lead agency for reporting purposes under sections 616 and 642 of the Act and under §§ 303.700 through 303.702; whereas an

early intervention service provider,

as defined in § 303.12, is an entity (whether public, private, or nonprofit) or individual that provides early intervention services under part C of the Act, whether or not the entity or individual receives Federal funds under part C of the Act.

Changing the abbreviation “EIS” for purposes of referencing early intervention services is not necessary. “EIS” is the long-standing, commonly accepted abbreviation used in the field of early intervention and we do not anticipate any confusion by the abbreviation's continued use in programs administered under part C of the Act.

Changes:

None.

Early Intervention Service Provider (§ 303.12)

Comment:

One commenter requested that the Department revise the regulations to clarify the distinction between “early intervention service providers” as used in part C of the Act and “related services providers” as used in part B of the Act.

Discussion:

Parts B and C of the Act have different purposes, eligibility criteria, and requirements and the services required by each program are already defined in each part respectively. Part C of the Act requires States to make available to infants and toddlers with disabilities early intervention services to meet their developmental needs. The terms

early intervention services

and

EIS provider

are defined in the part C regulations, respectively, in § 303.13 and § 303.12.

Part B of the Act requires States to make available to children with disabilities a free appropriate public education or FAPE, which includes special education and related services. The term

related services

is defined in the part B regulations in 34 CFR 300.34 as supportive services that are required “to assist a child with a disability to benefit from special education” and includes transportation and developmental, corrective, and other supportive services. The term “related services provider” is not defined in the part B regulations.

While many examples of early intervention services under part C of the Act, including occupational therapy and speech-language pathology services, are the same as the examples of related services under part B of the Act, there are potential differences between related services and early intervention services, based on differing ages of the populations served and purposes of the programs. Therefore, it is the Department's position that the regulations for part B and part C of the Act, and specifically the definitions of

related services, early intervention services,

and

early intervention service provider,

distinguish sufficiently between the roles and functions of a related services provider under part B of the Act and an early intervention service provider under part C of the Act.

Changes:

None.

Early Intervention Services, General (§ 303.13(a))

Comment:

One commenter recommended changing the defined term

early intervention services

to “early intervention” so that readers would not confuse early intervention services under part C of the Act with the early intervening services described in 34 CFR 300.226 of the part B regulations.

Discussion:

The term

early intervention services,

defined in § 303.13(a), mirrors the term “early intervention services” referenced throughout part C of the Act. In order to remain consistent with the statutory language, we have not changed the term

early intervention services

within this part.

Changes:

None.

Comment:

One commenter recommended that we modify the definition of

early intervention services

to reflect the provisions in 34 CFR 300.324(a)(2) of the part B regulations, which require a child's individualized education program (IEP) Team consider special factors when developing a child's IEP.

Discussion:

We address this comment in our discussion of the comments on § 303.342.

Changes:

None.

Comment:

Two commenters recommended that, when describing the purpose of early intervention services in general, we retain the language that these services must be designed to serve “the needs of the family related to enhancing the child's development” that is in current § 303.12(a)(1). The commenter stated that meeting family needs is a key component of an early intervention system and should be addressed routinely in IFSP development, rather than only upon family request.

Discussion:

Proposed § 303.13(a)(4) provided that early intervention services are developmental services that are designed to meet the developmental needs of an infant or toddler with a disability, and, “as requested by the family, the needs of the family.” We agree with the commenters that our inclusion of the language “as requested by the family” could be interpreted to mean that addressing the needs of a family of an infant or toddler with a disability is not an essential component of early intervention services under part C of the Act. This was not our intention in proposing this language. Therefore, for clarity we have removed this phrase from § 303.13(a)(4).

Changes:

We have removed the phrase “as requested by the family” from § 303.13(a)(4).

Comment:

A few commenters recommended adding the word “language” in § 303.13(a)(4)(iii) regarding communication development because communication and language have separate meanings and the regulations should make that distinction.

Discussion:

The list of developmental areas in § 303.13(a)(4) reflects the requirements in section 632(4)(C) of the Act. The Department's position is that communication is a broader developmental area than language but that it includes language, and thus no further change is necessary.

Changes:

None.

Comment:

One commenter recommended clarifying in § 303.13(a)(4)(iv), which identifies social or emotional development as an area in which early intervention services may be provided, the differences between the terms social development and emotional development because they are separate developmental processes. Another commenter recommended adding “social skills” to the list of developmental areas in § 303.13(a)(4).

Discussion:

Social and emotional development are two distinct developmental areas. Therefore, section 632(4)(C)(iv) of the Act and § 303.13(a)(4)(iv) use the term “or” to make clear that early intervention services may address a child's needs in either developmental area. Consequently, we do not agree that further clarification of these areas is necessary. Concerning the request to add social skills to § 303.13(a)(4), the term social or emotional development includes the acquisition of developmental skills, such as social skills. Thus, adding “social skills” to the developmental areas identified in § 303.13(a)(4) is not necessary.

Changes:

None.

Comment:

None.

Discussion:

We realize that the term “early intervention” should have been included before the word “services” in § 303.13(a)(5), which provides that developmental services must meet the standards of the State in which the services are provided, including the requirements of part C of the Act. We have added the phrase “early intervention” before the word “services.”

Changes:

We have revised § 303.13(a)(5) to include the phrase “early intervention” before the word “services.” Where appropriate, we have made similar changes throughout the regulations.

Comment:

One commenter requested that the Department amend § 303.13(a)(8) to require that specific services and methods be provided in natural environments to the maximum extent appropriate. Additionally, the commenter suggested that we add the phrase “and based on the child's developmental needs and chronological

age” to § 303.13(a)(8) after the word “appropriate.”

Discussion:

Section 303.13(a)(8) references the definition of natural environment in § 303.26, which provides that

natural environments

are settings that are natural or typical for a same-aged infant or toddler without a disability and may include the home, community, or other settings that are typical for an infant or toddler without a disability. Additional natural environment requirements are in §§ 303.126 and 303.344(d)(1)(ii) and we have added, in § 303.13(a)(8), a cross-reference to both of these regulations. Section 303.126 requires that each State's system include policies and procedures to ensure that early intervention services are provided in natural environments to the maximum extent appropriate. Section 303.344(d)(1)(ii), regarding IFSP content, requires that the IFSP Team include on the child's IFSP a statement that each early intervention service is provided in the natural environment for that child or service to the maximum extent appropriate or a justification, based on the child's outcomes, when an early intervention service is not provided in the natural environment for that child. In light of these other regulatory provisions, amending the language regarding natural environments in § 303.13(a)(8) to reference specific early intervention services or methods of delivering early intervention services is not necessary.

With regard to the commenter's suggestion that we add the phrase “and based on the child's developmental needs” to § 303.13(a)(8) after the word “appropriate,” § 303.13(a)(4) already provides that early intervention services must be designed to meet the developmental needs of an infant or toddler with a disability. Therefore, adding “and based on the child's developmental needs” would be repetitive and thus not necessary. Adding the phrase “and based on the child's chronological age” to § 303.13(a)(8) also is not necessary because the definition of

natural environments

in § 303.26 includes environments that are “natural or typical for a same-aged infant or toddler without a disability.” This definition takes into account the comparability to same-aged peers as well as the chronological age of the child in the context of natural environments. The Secretary believes that the natural environments provisions in these regulations address sufficiently and appropriately the issues raised by the commenter.

Changes:

We have added in § 303.13(a)(8) a cross-reference to § 303.344(d).

Comment:

One commenter requested that we clarify in the definition of

early intervention services

that EIS providers who work with infants and toddlers with disabilities and their families should focus their services on ensuring that family members and children have the tools needed to continue developing the skills identified in the IFSP whenever a learning opportunity presents itself even when a teacher or therapist is not present.

Discussion:

Section 303.344(d) requires the IFSP to include the early intervention services that are necessary to meet the unique needs of the child and family to achieve the results or outcomes identified in the IFSP. If the IFSP Team determines that a child or family needs services to help the child learn when a teacher or therapist is not present, then that outcome, and services to meet that outcome, must be included in the IFSP. This individualized approach, in which appropriate outcomes and services are determined by the IFSP Team in light of each child's unique needs, is appropriate and is addressed sufficiently under this part. Therefore, clarifying the definition of early intervention services, as requested by the commenter, is not necessary.

Concerning the comment about providing family members with the necessary tools to help an infant or toddler with a disability learn even when a teacher or therapist is not present, we agree that EIS providers should work with the parents of an infant or toddler with a disability so that the parents can continue to assist the child whenever a learning opportunity occurs. However, in addition to the reasons stated, adding language to § 303.13 as requested is not necessary because the definition of

EIS provider

in § 303.12(b)(3) specifies that such providers are responsible for consulting with and training parents and others concerning the provision of early intervention services described in the IFSP of the infant or toddler with a disability. Additionally, this consultation and training will provide family members with the tools to facilitate a child's development even when a teacher or therapist is not present.

Changes:

None.

Types of Early Intervention Services (§ 303.13(b))

Comment:

One commenter supported our proposal to remove nutrition services and nursing services from the types of early intervention services identified in § 303.13(b) (current § 303.12(d)(6) through (d)(7)), stating that these services are medical in nature and not consistent with the definition of early intervention as a developmental program.

However, many commenters opposed removing nutrition services from the types of early intervention services identified and requested that nutrition services be specifically included as one of the types of early intervention services identified in the final regulations.

Numerous commenters also opposed the removal of nursing services from the definition of

early intervention services

and requested that these services be specifically included in that definition in the final regulations. Other commenters stated that although they recognized that the Act did not include a specific reference to nursing services, these services could nonetheless be provided, where appropriate, pursuant to § 303.13(d), which recognizes that services other than those listed in the definition may constitute early intervention services under certain circumstances.

Additionally, many commenters requested that music therapy be included in the definition of

early intervention services.

Other commenters requested that respite care be specifically included in the definition of

early intervention services.

One commenter requested that we include parent-to-parent support as a type of early intervention service because of its value and importance.

Discussion:

The specific early intervention services that are listed in § 303.13(b) are those identified in section 632(4)(E) of the Act. While nursing services and nutrition services are not specifically mentioned in the Act, they historically have been included in the definition of early intervention services. For clarity, we have included the previous definitions of nursing services and nutritional services from current § 303.12(d)(6) and (7) in new § 303.13(b)(6) and (b)(7). However, as noted in the preamble to the NPRM and in the definition of

early intervention services

in the regulations, this list is not exhaustive. Specifically, § 303.13(d) states that “(t)he services and personnel identified and defined in paragraphs (b) and (c) of this section do not comprise exhaustive lists of the types of services that may constitute early intervention services or the types of qualified personnel that may provide early intervention services.” Further, § 303.13(d) states that “[n]othing in this section prohibits the identification in the IFSP of another type of service as an

early intervention service provided that the service meets the criteria identified in paragraph (a) of this section.”

Section 303.13(d) clearly conveys that the early intervention services identified in § 303.13(b) are not an exhaustive list and may include other developmental, corrective, or supportive services that meet the needs of a child as determined by the IFSP Team, provided that the services meet the criteria identified in § 303.13(a) and the applicable State's definition of early intervention services. We added the previous definitions of nursing services and nutritional services to these final regulations because these definitions are defined in the current regulations and relied upon by the field. However, adding new definitions of additional services identified by the commenters, such as music therapy and respite care, is not necessary.

Changes:

We have added new § 303.13(b)(6) to define nursing services to include the assessment of health status for the purpose of providing nursing care, including the identification of patterns of human response to actual or potential health problems; the provision of nursing care to prevent health problems, restore or improve functioning, and promote optimal health and development; and the administration of medications, treatments, and regimens prescribed by a licensed physician.

We have also added new § 303.13(b)(7) to define nutrition services to include: (i) Conducting individual assessments in nutritional history and dietary intake; anthropometric, biochemical, and clinical variables; feeding skills and feeding problems; and food habits and food preferences; (ii) developing and monitoring appropriate plans to address the nutritional needs of children eligible under this part, based on the findings in paragraph (b)(7)(i) of this section; and (iii) making referrals to appropriate community resources to carry out nutrition goals. Subsequent definitions have been renumbered accordingly.

Types of Early Intervention Services—Assistive Technology Device and Service (§ 303.13(b)(1))

Comment:

Two commenters recommended that we modify the definition of

assistive technology device

to include the language from the preamble of the NPRM that, under certain circumstances, part C funds may be used to pay for a hearing aid.

Another commenter requested that the Department explicitly state in the regulations or in a memorandum or policy letter issued to part C lead agencies that hearing aids and appropriate related audiological services may be considered, under certain circumstances, an appropriate early intervention service and an assistive technology device.

Discussion:

The definition of

assistive technology device

does not identify specific devices; including an exhaustive list of assistive technology devices in the definition would not be practical. Whether a hearing aid or an appropriate related audiological service is considered an assistive technology device or an early intervention service, respectively, for an infant or toddler with a disability depends on whether the device or service is used to increase, maintain, or improve the functional capabilities of the child and whether the IFSP Team determines that the infant or toddler needs the device or service in order to meet his or her specific developmental outcomes. Therefore, we have not revised this definition.

Changes:

None.

Comment:

Several commenters requested further clarification of the definition of

assistive technology device and service

in § 303.13(b)(1). These commenters stated that the definition should be revised to specifically exclude prosthetic limbs because these are personal devices for daily use.

Discussion:

The definition of

assistive technology device and service

in § 303.13(b)(1) aligns with the definitions of those terms in section 602(1) and (2) of the Act and 34 CFR 300.5 and 300.6 of the part B regulations. These definitions provide sufficient clarity about what types of devices or technologies are included in the definition and, therefore, indicating that a specific device or technology is excluded is unnecessary. Additionally, we note that, while part C lead agencies are not responsible for providing personal devices meant for daily or personal use, such as eyeglasses, hearing aids, or prosthetic limbs, to an infant or toddler with a disability, these devices may be an early intervention service if the device is not surgically implanted (§ 303.13(b)(1)(i) specifically excludes medical devices that are surgically implanted), and the IFSP Team determines that the infant or toddler with a disability requires such a personal device to meet the unique developmental needs of that infant or toddler.

Changes:

None.

Comment:

One commenter recommended that we modify the definition of

assistive technology device and service

to be consistent with the Assistive Technology Act (Pub. L. 105-394).

Discussion:

The definitions of

assistive technology device and service

in § 303.13(b)(1) align with section 602(1) and (2) of the Act. The definitions in section 602(1)(A) and (2) of the Act are substantially similar to the definitions of assistive technology device and assistive technology service in section 3(3) and (4) of the Assistive Technology Act of 1998 (Pub. L. 105-394) (AT Act), but the language in section 602 of the Act is more specific to the needs of children with disabilities. Furthermore, unlike the AT Act, section 602(1)(B) of the Act expressly excludes from the definition of assistive technology device those medical devices that are surgically implanted or the replacement of such devices. Thus, while the definitions are similar, it is not appropriate to include in these regulations the specific language from the AT Act.

Changes:

None.

Comment:

A few commenters supported our clarification in the preamble to the NPRM that the optimization (

e.g.,

mapping) of surgically implanted medical devices is not the responsibility of the lead agency or the EIS program.

Many commenters, however, opposed our proposal to exclude optimization (

e.g.,

mapping) of surgically implanted medical devices, including cochlear implants, from the definition of

assistive technology device.

Commenters stated that excluding optimization (

e.g.,

mapping) of surgically implanted medical devices, including cochlear implants, from the types of early intervention services that could be provided under the Act contradicts the intent of Congress. Many of these commenters also stated that excluding optimization (

e.g.,

mapping) services from the definition of

assistive technology device

would preclude funding of these services under this part and thus some infants and toddlers with cochlear implants would not receive mapping services, ultimately jeopardizing their ability to hear and learn. Another commenter suggested that setting and evaluating a surgically implanted medical device, particularly a cochlear implant, is the same as setting a listening device, which is a covered service.

Discussion:

The term “mapping” refers to the optimization of a cochlear implant, and more specifically, to adjusting the electrical stimulation levels provided by the cochlear implant that are necessary for long-term post-surgical follow-up of a cochlear implant. Although the cochlear implant must be mapped properly for the child to hear well while receiving early intervention

services, the mapping does not have to be done while the child is receiving early intervention services in order for the mapping of the device to be effective.

We maintain that excluding optimization (

e.g.,

mapping) of a cochlear implant from the definition of

early intervention services

is consistent with the Act. Section 632 of the Act defines

early intervention services

and specifies categories of these services. The categories of early intervention services that relate to optimization (

e.g.,

mapping) are assistive technology devices and assistive technology services.

Section 602(1)(B) of the Act excludes from the definition of an

assistive technology device

“a medical device that is surgically implanted, or the replacement of such device.” Section 602(2) of the Act states that

assistive technology service

“means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device.” A cochlear implant, as a surgically implanted medical device, is excluded from being an assistive technology device under section 602(1)(B) and, therefore, optimization (

e.g.,

mapping) of a cochlear implant cannot directly assist an infant or toddler with a disability with regard to an assistive technology device that is covered under the Act. Thus, optimization (

e.g.,

mapping) is not an assistive technology service and excluding optimization from the definition of

early intervention service

is consistent with the Act.

We also note that the exclusion of mapping does not prevent the appropriate early intervention service provider from checking to ensure the device is working.

We do not agree that optimization of a cochlear implant is the same as setting a listening device. Unlike a cochlear implant, a listening device is not a surgically implanted device. The Act excludes surgically implanted devices, such as cochlear implants, from the definition of

assistive technology device

but does not exclude listening devices. Therefore, we have not revised § 303.13(b)(1) as requested by the commenters.

Changes:

None.

Comment:

One commenter recommended that the definition of

assistive technology device

include the phrase “all related and necessary components of the system” to make clear that the individual components needed to develop a customized device (

e.g.,

ear mold for an FM system or a light pointer for an augmentative and alternative communication device) would be considered an assistive technology device and, therefore, a covered early intervention service under part C of the Act. The commenter also recommended adding the phrase “specially fit” to the definition of

assistive technology device.

Another commenter requested that low-tech assistive technology devices, for example, items that can be purchased at a department store, be expressly included in the definition.

Discussion:

The definition of

assistive technology device

adequately addresses the commenters' concerns and is not amended. Section 303.13(b)(1)(i) provides that an assistive technology device includes equipment or product systems that may need to be modified or customized to meet the specific needs of a particular infant or toddler with a disability. A customized assistive technology device would include devices that are “specially fit” as well as all components needed to modify or customize that device for an infant or toddler with a disability.

The definition of

assistive technology device

in § 303.13(b)(1)(i) states that an assistive technology device means any “item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized.” The language “acquired commercially off the shelf” in the definition adequately addresses the commenter's request that low-tech assistive technology devices be included in the definition of

assistive technology device.

Changes:

None.

Comment:

One commenter did not agree with the language in § 303.13(b)(1)(ii)(E), which provides that an assistive technology service includes training or technical assistance for an infant or toddler with a disability or, if appropriate, that child's family. The commenter specifically requested that the phrase “if appropriate” be removed because, according to the commenter, it is always appropriate to provide training and technical assistance to the family of an infant or toddler with a disability who receives assistive technology services.

Discussion:

The language referenced by the commenter in § 303.13(b)(1)(ii)(E) is substantively unchanged from language in current § 303.12(d)(1)(v). We do not agree that providing training to a family of an infant or toddler with a disability who is receiving an assistive technology service will always be appropriate. For example, if training already has been provided to a family about an assistive technology device and the family is familiar with its use, the IFSP Team may determine that it is not necessary to train family members again. As part of the family-directed assessment under § 303.321, the IFSP Team (which includes the parent) determines whether training is necessary. The family assessment identifies the resources, priorities, and concerns and the supports and services necessary to enhance a family's capacity to meet the developmental needs of the infant or toddler with a disability, including whether training of family members regarding assistive technology services is appropriate or necessary.

Changes:

None.

Types of Early Intervention Services—Family Training, Counseling, and Home Visits (§ 303.13(b)(3))

Comment:

A few commenters requested that we clarify the definition of

family training, counseling, and home visits

in § 303.13(b)(3). One commenter recommended deleting the reference to “home visits” in the title of this paragraph because the commenter considered home visits to be a method of providing a service rather than a service in and of itself. The commenter acknowledged that the Department may not be able to make this change, however, because the term home visits is used in the Act. One commenter expressed concern that this definition could be misinterpreted to mean that family training must occur in the home and must include counseling.

Discussion:

Section 632(4)(E)(i) of the Act expressly states that early intervention services include family training, counseling, and home visits. Thus, removing the reference to home visits from § 303.13(b)(3) would be inconsistent with the Act.

The language in § 303.13(b)(3) does not mean that family training must occur in the home or include counseling. Section 303.13(b)(3) merely defines three separate early intervention services -- family training, counseling, and home visits—that may be provided to assist the family of an infant or toddler with a disability in understanding the special needs of the child and enhancing the child's development.

Changes:

None.

Comment:

One commenter questioned how the family training services referenced in § 303.13(b)(3) differ from the parent training referenced in the definition of

psychological services

in § 303.13(b)(10)(iv).

Discussion:

The term family training, as used in § 303.13(b)(3), is an example of an early intervention service identified in section 632(4)(E) of the Act and parent training is referenced in § 303.13(b)(10)(iv) as an example of one

component of a program of psychological services for an infant or toddler with a disability. While there may be some overlap in these services, the purposes and providers of the trainings may differ. “Family training” as used in § 303.13(b)(3) is broader than “parent training” in § 303.13(b)(10)(iv). For example, family training in § 303.13(b)(3) may include training in any area related to the special needs of the infant or toddler with a disability (such as the use of specialized equipment or feeding techniques); whereas, parent training as used in § 303.13(b)(10)(iv) only encompasses training with respect to the child's psychological condition and the psychological services the child is receiving.

Changes:

None.

Comment:

One commenter recommended adding “support of the parent-child relationship” as an area that would be covered by the definition of

family training, counseling, and home visits

in § 303.13(b)(3).

Discussion:

Supporting the parent-child relationship may be one of any number of early intervention services provided to assist a family of an infant or toddler with a disability in understanding the special needs of the child and enhancing that child's development. Including specific types of services in § 303.13(b)(3) is not necessary because a wide range of services could fall under the definition of

family training, counseling, and home visits.

Indeed, including such a list could be interpreted to limit the types of services that would be considered family training, counseling, and home visits. We want to ensure that the regulations provide the flexibility for each IFSP Team to determine appropriate early intervention services based on the unique needs of an infant or toddler with a disability and his or her family. Leaving this definition more general will provide IFSP Teams with that flexibility.

Changes:

None.

Comment:

One commenter recommended adding references to “family training and home visits” in the definitions of all other services that are critical components of early intervention service delivery.

Discussion:

Adding references to “family training and home visits” throughout the regulations is not necessary because § 303.13(b)(3) makes clear that family training, counseling, and home visits are an early intervention service that may be provided under part C of the Act. However, the determination of whether these particular services are provided to a family is made by the IFSP Team in accordance with the provisions in §§ 303.340 through 303.346. Accordingly, adding references to family training and home visits or other specific early intervention services in other sections of the regulations would not be appropriate.

Changes:

None.

Comment:

One commenter recommended adding language to § 303.13(b)(3) to provide that any training must be provided to all family members.

Discussion:

The use of the word “family” in this definition is broad enough to encompass all family members if the IFSP Team determines that it is appropriate to provide training to all family members. Further, the decision about whether a family member receives training must be made by the IFSP Team in accordance with section 636(d)(4) of the Act and § 303.344(d)(1) of these regulations. We cannot mandate in these regulations that family training or any other specific early intervention service be provided to an infant or toddler with a disability or that child's family.

Changes:

None.

Types of Early Intervention Services—Occupational Therapy (New § 303.13(b)(8)) (Proposed § 303.13(b)(6))

Comment:

Several commenters supported our proposed definition of

occupational therapy

in new § 303.13(b)(8) (proposed § 303.13(b)(6)), but suggested that the Department modify the definition to require that such services be provided by qualified occupational therapists as required in 34 CFR 300.34(c)(6) of the part B regulations.

One commenter requested that we clarify the definition to state that an occupational therapy assistant working under the direct supervision of an occupational therapist could provide occupational therapy services.

A few commenters recommended that this definition identify the specific functional domains that occupational therapists facilitate and promote such as physical, cognitive, communication, social, emotional, and adaptive skills.

Discussion:

Specifying that occupational therapy must be provided by a qualified occupational therapist, as required in the part B regulations, is not necessary because occupational therapists are identified in § 303.13(c)(4) as a type of qualified personnel who provide the early intervention services listed in § 303.13(b). Additionally, § 303.119(c) provides that paraprofessionals and assistants who are appropriately trained and supervised in accordance with State law, regulation, or written policy, may assist in the provision of early intervention services under part C of the Act. Repeating this language from §§ 303.13(c) and 303.119(c) in new § 303.13(b)(8) is not necessary.

The functional skill domains that the commenter requested be listed in new § 303.13(b)(8) are already listed in § 303.13(a)(4). Thus, under these regulations, occupational therapy services could focus on one or more of these functional skill domains, and the specific occupational therapy services provided to a child would be based on the occupational therapy outcomes in the child's IFSP.

Changes:

None.

Types of Early Intervention Services—Special Instruction (New § 303.13(b)(14)) (Proposed § 303.13(b)(11))

Comment:

One commenter recommended changing the title of the definition of

special instruction

in new § 303.13(b)(14) (proposed § 303.13(b)(11)) to “developmental instruction” because “special instruction” services may not be covered by public or private insurance.

Discussion:

Section 632(4)(E)(ii) of the Act references “special instruction” as an example of an early intervention service. The definition of

special instruction

has not changed substantively from the definition of

special instruction

in current § 303.12(d)(13) and specifically includes developmental instruction. States may refer to this early intervention service as “developmental instruction” or use another term, provided that it meets the definition of

special instruction

in § 303.13(b). Moreover, many States currently use the term “special instruction” and, thus, revisions to the title of this definition are not necessary.

Changes:

None.

Types of Early Intervention Services—Speech-Language Pathology Services (New § 303.13(b)(15)) (Proposed § 303.13(b)(12))

Comment:

Some commenters recommended that sign language, cued language, auditory/oral language, and transliteration services be defined separately from, and not included in, the definition of speech-language pathology services because they are different types of services. One commenter supported their inclusion in the definition. A few commenters suggested that separate definitions would reflect that speech-language pathologists and interpreters receive different preparatory training, are

licensed by different boards, and are subject to different professional regulations.

Other commenters noted that sign language, cued language, auditory/oral language, and transliteration services are provided by qualified professionals, such as audiologists, teachers of children who are deaf and hard of hearing, and interpreters, and that speech-language pathologists may not necessarily be qualified to provide these services. Finally, one commenter recommended that, at a minimum, we change the title of this definition to reference sign language and cued language services to be consistent with the list of types of early intervention services specified in section 632(4)(E)(iii) of the Act.

Discussion:

We agree that establishing a separate definition of

sign language and cued language services,

which includes auditory/oral language and transliteration services, is consistent with section 632(4)(E)(iii) of the Act. Therefore, we have included in new § 303.13(b)(12) a definition of the term that incorporates the language from proposed § 303.13(b)(12)(iv).

Changes:

We have moved proposed § 303.13(b)(12)(iv) to new § 303.13(b)(12). Due to the addition of this separate definition of

sign language and cued language services

in § 303.13(b)(12), the definitions in § 303.13(b) (types of early intervention services), beginning with the definition of

social work services,

have been renumbered.

Comment:

A significant number of commenters requested that the Department clarify that sign language and cued language services may be provided not only to children who are deaf or hard of hearing but also to an eligible child who is not deaf or hard of hearing whose IFSP Team has identified such services as appropriate to meet that child's developmental needs.

Discussion:

We agree with the commenters and have not included the reference to infants and toddlers with a disability who are deaf or hard of hearing from proposed § 303.13(b)(12)(iv) in the new definition of

sign language and cued language services

in new § 303.13(b)(12).

Changes:

The phrase “as used with respect to infants and toddlers with disabilities who are hearing impaired” has not been included in the definition of

sign language and cued language services

in new § 303.13(b)(12).

Comment:

One commenter suggested that the description of sign language and cued language services, which is now in new § 303.13(b)(12) (proposed § 303.13(b)(12)(iv)), was confusing because of the use of the word “and” between “cued language” and “auditory/oral language services.” The commenter recommended that this phrase be changed to “cued language or auditory/oral language services” because the word “and” implied that either all services in the list must be provided or none of the services can be provided.

Discussion:

In reviewing new § 303.13(b)(12) (proposed § 303.13(b)(12)(iv)), we determined it was necessary to clarify and distinguish between services that focus on teaching and interpretation. Thus, we have clarified that sign language and cued language services include teaching sign language, cued language, and auditory/oral language, providing oral transliteration services (such as amplification), and providing sign and cued language interpretation.

Regarding the commenter's concern about the use of the term “and”, this use does not mean that all of the services listed must be identified in the IFSP or provided. The definition of

sign language and cued language services

in new § 303.12(b)(12) provides that sign language and cued language services “include” certain services and § 303.18, in turn, defines the term

include

to mean “that the items named are not all of the possible items that are covered, whether like or unlike the ones named.” Accordingly, revising the reference to “and” in the definition of

sign language and cued language services

is not necessary.

Changes:

We have revised new § 303.13(b)(12) to define

sign language and cued language services

to include “teaching sign language, cued language, and auditory/oral language, providing oral transliteration services (such as amplification), and providing sign and cued language interpretation.”

Comment:

One commenter requested that the Department add a parenthetical “such as amplification” to the phrase “oral transliteration” in new § 303.13(b)(12) (proposed § 303.13(b)(12)(iv)) and distinguish between “translation” and “transliteration.” Another commenter recommended moving the reference to cued language interpreting and transliteration services from the definition of

early intervention services

in new § 303.13(b)(12) (proposed § 303.13(b)(12)(iv)) to the definition of

native language

in § 303.25(b) because, for children who are deaf, native language is defined as the mode of communication normally used by the individual (including sign language).

Discussion:

Transliteration, in new § 303.13(b)(12) (proposed § 303.13(b)(12)(iv)), refers to the rendering of one language or mode of communication into another by sound such as voicing over difficult-to-understand speech in order to clarify the sounds, not the meaning. We agree that including amplification as an example of transliteration is appropriate and have added amplification as an example in the definition. However, because the regulations do not use the term “translation” (

i.e.,

rendering one language into another by its meaning), there is no need to define that term. Additionally, we decline to adopt the commenter's suggestion that we move the reference to cued language interpreting and transliteration services to the definition of

native language

in § 303.25(b). These services are types of early intervention services that the IFSP Team may identify as needed by the eligible child and family and therefore including them under the definition of

early intervention services

in new § 303.13(b)(12) (proposed § 303.13(b)(12)(iv)) is appropriate. Further, including the reference recommended by the commenter in § 303.25(b) is not necessary because we believe the examples in paragraph (b) of that definition, regarding mode of communication that is normally used by an individual who is deaf or hard of hearing, blind or visually impaired, or for an individual with no written language, are appropriate and further examples are not needed to understand the meaning of the term

native language.

Changes:

We have added the parenthetical “(such as amplification)” as an example of transliteration services in new § 303.13(b)(12).

Comment:

Several commenters recommended adding such services as auditory habilitation and rehabilitation, dysphagia, auditory-verbal therapy, oropharyngeal, or feeding and swallowing services to the definition of

speech-language pathology services

in new § 303.13(b)(15) (proposed § 303.13(b)(12)).

Discussion:

The services identified in the definition of

speech-language pathology services

in new § 303.13(b)(15) (proposed § 303.13(b)(12)) are not intended to be exhaustive. Section 303.13(b)(15) (proposed § 303.13(b)(12)) does not preclude an IFSP Team from determining that an infant or toddler with a disability is in need of any of the services suggested by the commenters if the services are necessary to meet the outcomes identified for that child in the child's IFSP.

Changes:

None.

Types of Early Intervention Services—Transportation and Related Costs (New § 303.13(b)(16)) (Proposed § 303.13(b)(13))

Comment:

Many commenters opposed the proposal to remove expenses for travel by taxi from the costs included in the definition of

transportation and related costs.

The commenters stated that omitting this type of transportation cost could be problematic for families who do not have access to private transportation or reliable public transportation or who live in large urban areas and rely on taxis to transport their child to an EIS provider.

Discussion:

We did not include expenses for travel by taxi in the examples of transportation costs included in the definition of

transportation and related costs

because our understanding is that transportation via taxi for the purpose of traveling to an EIS provider is less common than the other examples we included in the proposed regulations such as transportation via common carriers. We did not intend to exclude such expenses specifically from the definition. Indeed, section 632(4)(E)(xiv) of the Act does not list any specific types of transportation and related costs. Accordingly, we have revised new § 303.13(b)(16) (proposed § 303.13(b)(13)) to remove the references to specific types of transportation costs.

Changes:

We have revised new § 303.13(b)(16) (proposed § 303.13(b)(13)) to align more closely with the language in section 632(4)(E)(xiv) of the Act. Specifically, we have removed the parenthetical examples of travel and other costs that were in the proposed regulation.

Types of Early Intervention Services—Vision Services (New § 303.13(b)(17)) (Proposed § 303.13(b)(14))

Comment:

Some commenters requested that the Department clarify the definition of

vision services

in new § 303.13(b)(17)(iii) (proposed § 303.13(b)(14)(iii)). A few commenters noted that the definition focused on older children and did not include the full scope of instruction available to young children and their families. One commenter expressed concern that the definition of

vision services

in new § 303.13(b)(17) (proposed § 303.13(b)(14)) described an outdated medical model that promotes skills training, rather than developmental adjustments that accommodate vision loss. A few commenters recommended that we add to this definition training and services in the following areas: tactile awareness, sensory utilization and preferences, emergent literacy, precane skills, environmental orientation, environmental adaptations, and modifications and conceptual understanding where visual impairment (including blindness) precludes typical access to early intervention.

One commenter suggested that the services listed could be included instead in the definition of

special instruction

in new § 303.13(b)(14) (proposed § 303.13(b)(11)) and requested guidance about who is qualified to provide these services.

Discussion:

We have clarified in the definition of

vision services

in new § 303.13(b)(17) that evaluations and assessments of visual functioning include the diagnosis and appraisal of specific visual disorders, delays, and abilities that affect early childhood development. We also agree that reference to independent living applies to older children and have deleted the reference, which was in proposed § 303.13(b)(14)(iii), to “independent living skills training.”

Regarding commenters' concerns that vision services are limited to “training” services and not skills, we note that the purpose of providing training to a child in specific vision areas is to improve the child's skills in those areas. The definition of

vision services

provides discretion and flexibility for each IFSP Team to identify those vision services necessary to meet the unique needs of an infant or toddler with a disability and the child's family. Therefore, we have not made the changes recommended by the commenter.

Maintaining separate definitions for

special instruction

and

vision services

aligns with sections 632(4)(E)(ii) and (4)(E)(xii) of the Act, regarding the types of services that are included as early intervention services. Vision services should not be included in the definition of

special instruction

because some of the examples of vision services would not be appropriate as examples of special instruction. For example, referral for medical or other professional services necessary for the habilitation or rehabilitation of visual functioning disorders, or both, would not fall under the definition of

special instruction.

The types of qualified personnel who may provide vision services are listed in § 303.13(c). This list includes optometrists and ophthalmologists and is not exhaustive. Thus, providing additional guidance about who is qualified to provide vision services is not necessary.

Changes:

We have added the words “that affect early childhood development” after the words “specific visual disorders, delays, and abilities.” We also have removed the phrase “independent living skills” from proposed § 303.13(b)(14)(iii).

Qualified Personnel (§ 303.13(c))

Comment:

Several commenters supported our proposal to include in the definition of

qualified personnel

in § 303.13(c) types of personnel that are not included in the current part C regulations. Commenters specifically supported the inclusion of “registered dieticians,” “optometrists,” “teachers of children with hearing impairments,” and “teachers of children with visual impairments” in the list of qualified personnel.

A few commenters objected to the inclusion of “registered dieticians” and “vision specialists, including ophthalmologists and optometrists.” The commenters suggested that the inclusion of medical professionals,

i.e.,

ophthalmologists, might cause confusion about whether diagnostic services provided by ophthalmologists would qualify as early intervention services. Other commenters requested that the Department provide separate guidance about the use of and distinction between “ophthalmologists and optometrists.” One commenter requested clarification about whether a lead agency was responsible only for referring families to these specialists or if they also would be responsible for paying for diagnostic services.

One commenter requested that nutritionists be added to the list of qualified personnel because a nutritionist might be available when a registered dietician is not.

Discussion:

We appreciate the commenters' support for the proposed definition of qualified personnel in § 303.13(c). We included registered dieticians and vision specialists, including ophthalmologists and optometrists, in the proposed regulations to conform with the language in section 632(4)(F)(viii) and (4)(F)(x) of the Act, which lists these specialists as qualified personnel who provide early intervention services. Any of the personnel listed under this section could perform diagnostic services as part of the ongoing assessment of an infant or toddler or provide direct services to an infant or toddler with a disability and these services would qualify as early intervention services.

Concerning the comment about a lead agency's payment and referral responsibility, the lead agency would be responsible for referring families to ophthalmologists or optometrists and also would be responsible for paying for

diagnostic services, as required under § 303.13(b)(5).

We did not include the term nutritionist in the examples of qualified personnel in § 303.13(c) because this term was not included in section 632(4)(F)(viii) and (4)(F)(x) of the Act. However, nothing precludes lead agencies from utilizing services from a nutritionist if a nutritionist, instead of a registered dietician, can provide the nutrition or other services identified in the child's IFSP.

Changes:

None.

Comment:

A few commenters recommended listing “teachers of children with hearing impairments” and “teachers of children with visual impairments” in separate paragraphs in the definition of

qualified personnel

because these teachers are from two distinct disciplines. Another commenter stated that classifying teachers of the visually impaired as special educators is not necessary and suggested that doing so would have no impact on the availability of qualified personnel.

Discussion:

We agree with the commenter that teachers of children with hearing impairments and teachers of children with visual impairments are two distinct professions. The list of qualified personnel in § 303.13(c) who provide early intervention services under this part includes special educators. The term “special educators” consists of many distinct professions including teachers of children with hearing impairments and teachers of children with visual impairments. Therefore, including teachers of children with hearing impairments and teachers of children with visual impairments as examples of special educators in § 303.13(c)(11) is appropriate and listing these terms separately is not necessary.

Concerning the comment that classifying teachers of the visually impaired as special educators is not necessary, the Department recognizes that there are some special educators that receive their training and certification in visual impairments and hearing impairments. Therefore, teachers of children with hearing impairments and teachers of children with visual impairments remain as examples of special educators in the list of qualified personnel who provide early intervention services under this part to ensure that these teachers are considered qualified personnel to provide early intervention services.

Changes:

None.

Comment:

A few commenters requested that, in identifying the types of qualified personnel who provide early intervention services, the reference to “teachers of children with hearing impairments” be revised to refer to “teachers of deaf and hard of hearing children.” Another commenter stated that the appropriate reference to teachers who instruct children who are deaf or hard of hearing is “teachers of the hearing impaired.” Commenters who recommended using “teachers of deaf and hard of hearing children” opposed the word “impairment” as outdated, value-laden, and inconsistent with the language in the part B regulations.

Discussion:

The types of qualified personnel listed in § 303.13(c)(11) include “teachers of children with hearing impairments (including deafness).” This language is consistent with the part B regulations in 34 CFR 300.8(a)(1), which defines a child with a disability to mean a child as having a “hearing impairment (including deafness).” The terms hearing impairment, deafness, hearing impaired, and hard of hearing are all used in the field. For purposes of consistency among the regulations under the Act, we have continued to refer to these teachers as teachers of children with hearing impairments (including deafness).

Changes:

None.

Comment:

One commenter recommended adding “low vision specialist” to the list of qualified personnel because this addition would clarify that not all vision specialists are qualified to work with pediatric populations and that low vision is a subspecialty of optometry and ophthalmology.

Discussion:

Section 632(4)(F)(x) of the Act identifies vision specialists, including ophthalmologists and optometrists, as qualified personnel who provide early intervention services. Usually an optometrist or ophthalmologist would make the referral to a low vision specialist if such a referral is warranted. The list of qualified personnel identified in the Act and § 303.13(c) is not exhaustive; accordingly, nothing precludes the lead agency's use of a low vision specialist, if such a referral is made, to provide appropriate early intervention services to an infant or toddler with a disability.

Changes:

None.

Other Services (§ 303.13(d))

Comment:

One commenter supported proposed § 303.13(d), which provides that the services and personnel identified in § 303.13(b) and (c) do not comprise exhaustive lists of early intervention services and qualified personnel and that IFSP Teams and families also may consider other services that may be appropriate for infants and toddlers with disabilities.

Another commenter requested that the Department revise the language in this paragraph to indicate that any other services identified in the IFSP of an infant or toddler with a disability be based on proven methods or evidence-based practices.

Discussion:

We do not agree that requiring services identified in an IFSP to be based on proven methods or evidence-based practices is appropriate. Section 636(d)(4) of the Act provides that the IFSP include a statement of the specific early intervention services, based on peer-reviewed research, to the extent practicable, that are necessary to meet the unique needs of the infant or toddler with a disability and the family. Mirroring this standard, § 303.344(d)(1) requires that each IFSP include a statement of the specific early intervention services based on peer-reviewed research (to the extent practicable) that are necessary to meet the unique needs for the child and the family to achieve the measurable results or outcomes identified in the IFSP. Using the standard recommended by the commenter could limit the breadth of early intervention service options in a manner inconsistent with these provisions. Thus, we have not revised the language in § 303.13(d) as requested by the commenter.

Changes:

None.

Comment:

One commenter requested that the Department add language to § 303.13(d) to provide that families have the option to identify in the IFSP medical and other services that the child or family needs or is receiving through other sources, but that are neither required nor funded under part C of the Act.

Discussion:

Section 303.344(e) provides for the IFSP Team to identify in the IFSP medical and other services that the child or family needs or is receiving through other sources, but that are neither required nor funded under part C of the Act. Thus, making the change requested by the commenter is not necessary.

Changes:

None.

Free Appropriate Public Education (§ 303.15)

Comment:

One commenter recommended clarifying that the requirement to provide FAPE under part C of the Act only applies when a State chooses to make services under part C available to children ages three and older under the provisions in § 303.211 and is not applicable to the provision of part C services to children ages birth to three years of age.

Discussion:

The term FAPE is used in §§ 303.211, 303.501, and 303.521 of these regulations. Section 303.211 provides that a State may elect to offer services under part C of the Act to a child age three or older; however, if a State elects to offer these services and a parent chooses part C services instead of part B services for a child, the State is not required under this part to provide FAPE for the child.

Section 303.501 provides that States may use part C funds to provide FAPE to a child from the child's third birthday until the beginning of the school year following that birthday. Section 303.521 addresses situations in which State law mandates the provision of FAPE for children under the age of three.

To clarify the applicability of the FAPE requirements to these regulations, we have revised § 303.15 to provide that the definition of FAPE is included for purposes of the use of this term in §§ 303.211, 303.501 and 303.521.

Changes:

We have added references in § 303.15 to §§ 303.211, 303.501 and 303.521.

Health Services (§ 303.16)

Comment:

The comments we received on the proposed definition of

health services

in § 303.16 indicated there was some confusion concerning the conditions under which a child may receive health services under part C of the Act. Some commenters stated that the definition of

health services

was vague and could be read to mean that: (1) Infants and toddlers with disabilities are eligible to receive health services under part C of the Act even when those infants and toddlers are otherwise not eligible to receive early intervention services under part C of the Act and (2) funding of these health services under part C of the Act was required when no other payor was available.

Discussion:

The Department's position is that § 303.16 clearly states that a lead agency is only required to fund health services that meet the definition of

health services

in § 303.16 during the time that the child is eligible to receive early intervention services under part C of the Act and regardless of the availability of other payors. However, to avoid confusion, we have added language in § 303.16 clarifying that requirement.

Changes:

We have modified the definition of

health services

in § 303.16(a) to add the words “otherwise eligible” before the word “child” in order to clarify that a child must be eligible to receive early intervention services under this part in order to also receive

health services

as defined in § 303.16.

Comment:

A few commenters expressed concern that the definition of

health services

in § 303.16 would broaden the responsibilities of part C lead agencies and result in an increased fiscal burden on States. Another commenter suggested that the definition of

health services

in § 303.16 would make it difficult to differentiate between developmental services and medical services.

Discussion:

The only substantive difference between the definition of

health services

in current § 303.13 and the proposed definition of

health services

in § 303.16 is the addition of § 303.16(c)(1)(iii), which states that the definition of

health services

does not include services that are related to the implementation, optimization (

e.g.,

mapping), maintenance, or replacement of a medical device that is surgically implanted, including cochlear implants. This one substantive change limits, rather than expands, the responsibilities of part C lead agencies.

Therefore, the Secretary believes that the definition of health services does not broaden the responsibilities of lead agencies and thus, we do not anticipate that this definition will lead to an increased fiscal burden on States.

We do not agree with the commenter that the definition of

health services

in § 303.16 makes differentiating between developmental services and medical services difficult. Section 303.16(c) provides specific examples of services that are purely medical in nature and, therefore, not included in the definition of

health services.

These examples are sufficient to distinguish medical services from developmental services.

Changes:

None.

Comment:

Commenters had differing views concerning the Department's proposal to exclude from the definition of

health services

those services related to the implementation, optimization (

e.g.,

mapping), maintenance, or replacement of a medical device that is surgically implanted, including cochlear implants. One commenter supported excluding services related to the optimization (

e.g.,

mapping) of surgically implanted devices. A few commenters opposed the exclusion of services related to the optimization (

e.g.,

mapping) of surgically implanted medical devices, including cochlear implants. One commenter suggested that excluding this service from the definition of

health services

is not consistent with the intent of Congress and would effectively deny eligible infants and toddlers a service necessary for the child to benefit from other part C services.

Discussion:

Excluding services related to the optimization (

e.g.,

mapping) of a medical device that is surgically implanted, including cochlear implants, from the definition of

health services

in § 303.16, is consistent with section 602(1)(B) of the Act, which provides that the term

assistive technology device

does not include a medical device that is surgically implanted, or the replacement of such device. Further, this exclusion is consistent with the definition of

related services

in 34 CFR 300.34(b) of the part B regulations, which provides that related services do not include a surgically implanted device, including a cochlear implant or a medical device that is surgically implanted, the optimization of that device's functioning (

e.g.,

mapping of a cochlear implant), maintenance of that device, or the replacement of that device.

The term “mapping” refers to the optimization of a cochlear implant and is not included in the definition of

health services

in § 303.16. Specifically, “mapping” and “optimization” refer to adjusting the electrical stimulation levels provided by the cochlear implant that is necessary for long-term post-surgical follow-up of a cochlear implant. The maintenance and monitoring of surgically implanted devices such as cochlear implants require the expertise of a licensed physician or an individual with specialized expertise beyond that typically available from early intervention service providers. While the cochlear implant must be mapped properly in order for an infant or toddler with a disability to hear well while receiving early intervention services, the mapping does not have to be done as a part of early intervention service delivery in order for it to be effective.

Particularly with young children, EIS providers are frequently the first to notice changes in an infant's or toddler's ability to perceive sounds. A decrease in an infant's or toddler's ability to perceive sounds may manifest itself as decreased attention or understanding on the part of the infant or toddler or increased frustration in communicating. Such changes may indicate a need for remapping, and we would expect that EIS providers would communicate with the child's parents about their observations. To the extent that adjustments to the devices are required, a specially trained professional would provide the remapping, but this is not the responsibility of the lead agency or EIS provider.

While providing mapping as an early intervention service is neither required nor permitted by part C of the Act, § 303.16(c)(1)(iii)(B) makes clear that

nothing in part C of the Act or these regulations prevents an early intervention service provider from routinely checking that the external components of a cochlear implant of an infant or toddler with a disability are functioning properly. Trained lay individuals can routinely check an externally worn processor connected to the cochlear implant to determine if the batteries are charged and the external processor is operating. For example, EIS providers can be trained to check the externally worn speech processor to ensure that it is turned on, the volume and sensitivity settings are correct, and the cable is connected.

The exclusion of mapping as a health service is not intended to deny an infant or toddler with a disability access to any early intervention service. Each infant's or toddler's IFSP Team, which includes the child's parent, determines the early intervention services, and the level of those services, required by an eligible infant or toddler.

Finally, as discussed in our response to comments received on § 303.13(b)(1), it is the Department's position that the exclusion of services related to the optimization (

e.g.,

mapping) of surgically implanted medical devices, such as cochlear implants, from the definition of health services is consistent with the Act.

Changes:

None.

Comment:

One commenter requested that the Department clarify the difference between medical devices referenced in the definition of

health services

in § 303.16(c)(2) and the medical devices referenced in the definition of

assistive technology device

in § 303.13(b)(1)(i).

Discussion:

Both §§ 303.16(c)(2) and 303.13(b)(1)(i) provide examples of devices that are medical in nature and, therefore, not included under this part. Section 303.16(c)(2) states that devices necessary to control or treat a medical condition are not included under the definition of

health services

and provides examples of these devices. Section 303.13(b)(1) states that medical devices that are surgically implanted are not included in the definition of

assistive technology devices and services

or the umbrella term

types of early intervention services

and provides cochlear implants as an example of these medical devices.

Changes:

None.

Homeless Children (§ 303.17)

Comment:

Commenters generally were supportive of the proposed definition of

homeless children

in § 303.17. One commenter supported including the definition of

homeless children

in the regulations and another appreciated the focus on a traditionally underserved population.

One commenter expressed concern that the definition of

homeless children

may be broader than a State's definition. The commenter requested that we clarify in the regulations that a State is not required to serve children, even if they are homeless, who do not meet the State's eligibility definition.

One commenter recommended that we clarify the definition to provide that

homeless children

also include children over the age of three if a State chooses to implement the provisions of § 303.211, under which a State has the option to make services under part C of the Act available to children ages three and older.

Discussion:

We do not agree that the definition of

homeless children

in § 303.17 is broader than any valid State definition of children served. The definition of

homeless children

in § 303.17 is consistent with the definition in section 602(11) of the Act and section 725 (42 U.S.C. 11434a) of the McKinney-Vento Homeless Assistance Act (McKinney-Vento Act), as amended, 42 U.S.C. 11431

et seq.

A State may choose to promulgate a definition of homeless children that is broader than the definition in the McKinney-Vento Act, as amended, but a State may not promulgate a definition that is narrower in scope than the Federal definition.

We agree with the commenter and have clarified the definition to include children over the age of three, specifically in cases where States choose to implement § 303.211 and make services under part C of the Act available to children ages three and older.

Changes:

We have removed the phrase “under the age of three” from the definition of

homeless children

to make the definition consistent with section 635(c) of the Act, which provides States with the flexibility to serve children three years of age and older until entrance into elementary school, and § 303.211, under which a State may make services under part C of the Act available to children ages three and older.

Individualized Family Service Plan (§ 303.20)

Comment:

One commenter supported the provision in the definition of

individualized family service plan

that provides that the plan must be implemented as soon as possible after obtaining parental consent for early intervention services.

One commenter recommended adding a requirement that services begin as soon as possible, but no later than 10 days after receiving parental consent for early intervention services.

Discussion:

We address these comments in our discussion of the comments on § 303.342.

Changes:

None.

Infant or Toddler With a Disability (§ 303.21)

Comment:

Several commenters supported our proposed definition of

infant or toddler with a disability.

Commenters specifically supported the definition in § 303.21(a)(2) regarding eligibility for children with conditions that have a high probability of resulting in a child's developmental delay. One commenter supported the inclusion of “chromosomal abnormalities” in the examples of conditions in § 303.21(a)(2)(ii) that have a high probability of resulting in a child's developmental delay.

A few commenters requested clarification of the list of examples of these conditions in § 303.21(a)(2)(ii). One commenter requested that “severe attachment disorders” be added as an example in § 303.21(a)(2)(ii). Another commenter requested that the qualifier “severe” be deleted from the reference to “sensory impairments” in § 303.21(a)(2)(ii) because mild hearing losses can result in developmental delays. One commenter suggested that we clarify that the definition of

infant or toddler with a disability

in § 303.21(a)(2) does not require that the infant or toddler with a disability have a severe or chronic condition and that the definition includes at-risk infants and toddlers.

Another commenter requested that we revise § 303.21 to provide that a State's definition of

infant or toddler with a disability

can include, at the State's discretion, children with disabilities who are eligible for services under section 619 of the Act and previously were served under part C of the Act until such children enter, or are eligible to enter, kindergarten. Another commenter was concerned that services will be denied to children transitioning between part C of the Act and part B of the Act during the summer months despite the requirements in § 303.21(c) and the definition of

child

in § 303.6.

Discussion:

The examples of diagnosed conditions that have a high probability of resulting in developmental delay listed in § 303.21(a)(2)(ii) were taken from Note 1 following current § 303.16, which states:

The phrase `a diagnosed physical or mental condition that has a high probability of

resulting in developmental delay,' * * * applies to a condition if it typically results in developmental delay. Examples of these conditions include chromosomal abnormalities; genetic or congenital disorders; severe sensory impairments, including hearing and vision; inborn errors of metabolism; disorders reflecting disturbance of the development of the nervous system; congenital infections; disorders secondary to exposure to toxic substances, including fetal alcohol syndrome; and severe attachment disorders.

The reference to “severe attachment disorders,” which was included in Note 1, was inadvertently omitted from proposed § 303.21(a)(2)(ii) and we have added it to § 303.21(a)(2)(ii) as an example of a diagnosed condition that has a high probability of resulting in developmental delay.

Concerning the commenter's request that the qualifier “severe” be deleted from the phrase “sensory impairments,” in § 303.21(a)(2)(ii), we agree with the commenter that even a mild sensory impairment may result in developmental delay and have revised the definition accordingly.

Concerning the commenter's request that we clarify that the definition of

infant or toddler with a disability

does not require that the infant or toddler with a disability have a severe or chronic condition, § 303.21 includes various groups of children such as an infant or toddler who is experiencing a developmental delay, or who has a diagnosed physical or mental condition that has a high probability of resulting in developmental delay and in no way limits eligibility to infants or toddlers with severe or chronic conditions. Thus, the clarification recommended by the commenter is not necessary.

With respect to the commenter's request that the definition of

infant or toddler with a disability

in § 303.21 include at-risk infants and toddlers, § 303.21(b) provides that the definition of

infant or toddler with a disability

may include, at a State's discretion, an at-risk infant or toddler, as defined in § 303.5. It is the Department's position that each State must be provided discretion to develop a definition of infant or toddler with a disability that meets the unique needs of its population. The definition of

infant or toddler with a disability

addresses sufficiently and appropriately the issue of at-risk infants and toddlers and, therefore, we have not revised the definition as requested.

Concerning the request to revise the definition of

infant or toddler with a disability

to include children who are eligible for services under section 619 of the Act and were previously served under part 303, § 303.21(c) already makes clear that the definition of

infant or toddler with a disability

may include, at a State's discretion, a child with a disability who is eligible for services under section 619 of the Act and who previously received services under part 303 until the child enters, or is eligible under State law to enter, kindergarten or elementary school.

Summer services should not be denied to a child transitioning from early intervention services under part C of the Act to programs under part B of the Act simply because that child transitions during the summer months. Once a child is determined eligible for part B services, an IEP, or if consistent with 34 CFR 300.323(b) of the part B regulations, an IFSP, must be developed. If a child's IEP Team determines that extended school year services are necessary for the child to receive FAPE, the child must receive those services in accordance with the IEP (or IFSP under 34 CFR 300.323(b) of the part B regulations). Issues relating to transition of infants and toddlers from part C to part B services are discussed in more detail in the

Analysis of Comments and Changes

for subpart C in response to comments received on § 303.209.

Changes:

We have revised § 303.21(a)(2)(ii) to add “severe attachment disorders” to the list of diagnosed conditions that have a high probability of resulting in developmental delay. Additionally, we have removed the word “severe” as a qualifier to the term “sensory impairments” in § 303.21(a)(2)(ii).

Lead Agency (§ 303.22)

Comment:

One commenter requested that the Department provide its opinion on whether a State statute that designates the State agency that will serve as the lead agency in that State is consistent with the Act and these regulations.

Discussion:

Section 303.22, regarding the designation of the lead agency by the State's Governor, incorporates the requirement in section 635(a)(10) of the Act that the Governor designate the lead agency that is responsible for administering part C of the Act in the State. If a State statute signed into law by the Governor designates the lead agency, such designation would be consistent with this requirement.

Changes:

None.

Local Educational Agency (§ 303.23(c))

Comment:

None.

Discussion:

The proposed definition of local educational agency included a definition for BIA-funded schools, which referred to an elementary or secondary school funded by the Bureau of Indian Affairs (BIA). The Bureau of Indian Affairs is now called the Bureau of Indian Education or BIE and we have updated our references in § 303.23(c) accordingly.

Changes:

We have replaced, in § 303.23(c), references to the Bureau of Indian Affairs with the Bureau of Indian Education.

Multidisciplinary (§ 303.24)

Comment:

We received a significant number of comments concerning the definition of

multidisciplinary.

Multidisciplinary was defined in proposed § 303.24, with respect to evaluation and assessment of a child, an IFSP Team, and IFSP development under subpart D of this part, as the involvement of two or more individuals from separate disciplines or professions or one individual who is qualified in more than one discipline or profession. Some commenters supported this definition because it would help States allocate personnel and resources and may be less overwhelming for some families.

However, the vast majority of commenters opposed this proposed definition with respect to its reference to the IFSP Team. Specifically, these commenters stated that permitting one individual, even if that individual is qualified in more than one discipline or profession, to serve as the sole member of the IFSP Team (other than the parent), does not reflect best practice. One commenter suggested that the definition of

multidisciplinary

reflect the language in the definition of IEP Team in 34 CFR 300.23 of the part B regulations, which defines the IEP Team as a “group” of individuals. Additional commenters interpreted the definition of

multidisciplinary

to mean that one person could represent the entire IFSP Team and expressed concern that the definition, as written, would remove necessary checks and balances and may lead to potential conflicts of interest or decisions based on biased opinions. Additionally, commenters noted that changing this long-standing definition might create confusion for both families and service providers. Commenters requested that the definition be modified to ensure that multiple perspectives are included on each IFSP Team and adequate representation is not hampered or constrained on any given IFSP Team by an individual who is qualified in more than one discipline or profession. A few other commenters requested that the definition of

multidisciplinary

in current § 303.17 be retained.

Some commenters were concerned that multidisciplinary teams are the

only types of teams referenced in the regulations and that the regulations do not acknowledge that other types of teams, including but not limited to transdisciplinary and interdisciplinary teams, are routinely used in determining services under part C of the Act. The commenters suggested that all of these models should be included in the final regulatory definition to give teams the flexibility to choose the type of team model that best meets the needs of the individual situation.

Discussion:

We agree with commenters' concerns about the definition of

multidisciplinary

in relation to the IFSP Team as it is important to ensure the involvement of the parent and two or more individuals, one of whom must be the service coordinator (consistent with § 303.343(a)(1)(iv)), from separate disciplines or professions on the IFSP Team and have made this change. With respect to IFSP Team meetings, we believe it is important for the parent to be able to meet not only with the service coordinator (who may have conducted the evaluation and assessments), but also with another individual (whether that person is the service provider or another evaluator) to obtain input from two or more individuals representing at least two disciplines and have revised § 303.24 accordingly. We also have added a reference to multidisciplinary in § 303.340, regarding the general provisions that apply to IFSP development, review, and implementation. Thus, with these changes in §§ 303.24 and 303.340, the term multidisciplinary IFSP Team requires the involvement of two or more individuals from separate disciplines or professions, one of whom must be the service coordinator (consistent with § 303.343(a)(1)(iv)).

With respect to evaluation of the child and assessments of the child and family, § 303.321(a) requires that all evaluations and assessments be conducted by qualified personnel. Qualified personnel, as defined in § 303.31, means personnel who have met State approved or recognized certification, licensing, registration, or other comparable requirements that apply to the areas in which the individuals are conducting evaluations or assessments or providing early intervention services. Therefore, if one individual completes an evaluation while representing two or more separate disciplines or professions, that individual would have to meet the definition of qualified personnel in each area in which the individual is conducting the evaluation or assessment. Given these standards and requirements, we have retained the proposed definition to indicate that

multidisciplinary

means the involvement of two or more separate disciplines or professions and may include one individual who is qualified in more than one discipline or profession.

Finally, for clarity, we have added cross-references to the use of the term multidisciplinary, where appropriate, in §§ 303.113, 303.321, and 303.340 regarding multidisciplinary evaluations, assessments, and IFSP Teams.

Concerning adding a reference to transdisciplinary or interdisciplinary, the term multidisciplinary is consistent with section 635(a)(3) of the Act, regarding the requirement that the part C statewide system must include a timely, comprehensive, multidisciplinary evaluation of the functioning of each infant or toddler with a disability in the State. Transdisciplinary and interdisciplinary are specific team models. Multidisciplinary teams could be based on these models as long as the team meets the State's definition of

multidisciplinary

and the State's definition meets both statutory and regulatory requirements in this part. Thus, referencing specific team models in the regulatory definition of

multidisciplinary

is not necessary.

Changes:

We have revised the definition of

multidisciplinary

in § 303.24 to add paragraphs (a) and (b) and clarified in paragraph (b) that the IFSP Team in § 303.340, must include the involvement of the parent and two or more individuals from separate disciplines or professions and one of these individuals must be the service coordinator (consistent with § 303.343(a)(1)(iv)). We also have added cross-references in § 303.24(a) and (b) to §§ 303.113, 303.321, and 303.340 regarding multidisciplinary evaluations, assessments, and the IFSP Team.

Native Language (§ 303.25)

Comment:

We received a number of comments on proposed § 303.25(a)(2). Most commenters opposed the proposed requirement that the native language be used in all direct contact with the child. The commenters stated that such a requirement would be nearly impossible to implement in States where many different languages are spoken and would impose undue fiscal and personnel burdens on States where implementation is feasible.

Additionally, these commenters indicated that the proposed requirement would be inconsistent with section 602(20) of the Act, regarding the definition of

native language,

and section 607 of the Act, regarding requirements for prescribing regulations. One commenter expressed concern that proposed § 303.25(a)(2) would prohibit the delivery of services in English in situations where the child is in either a multilingual living or learning environment, even if the parent wanted the services delivered in English, or would prohibit the parent from serving as a translator for the EIS provider.

Several other commenters requested clarification regarding the applicability of proposed § 303.25(a)(2) in rural areas or areas that suffer from shortages of EIS providers. Other commenters asked what language should be used when conducting evaluations of newborns or young infants. Commenters also requested clarification as to whether and in what manner interpreters could be used when providing services.

A number of commenters supported proposed § 303.25(a)(2) stating that the provision would allow EIS providers to better communicate with families and infants and toddlers with disabilities, and would be consistent with 34 CFR 300.29 of the part B regulations, regarding the definition of

native language,

and section 607(a) of the Act.

Discussion:

We agree with commenters that requiring the native language to be used in all direct contact with a child, especially in providing early intervention services to an infant or toddler with a disability, may not be necessary or feasible in all circumstances. For example, a child may not require the use of native language when part C services are directly provided to the child when the child's receptive or expressive language has not yet developed to indicate a clear spoken language preference. Thus, we have not included in these final regulations the requirement in proposed § 303.25(a)(2) that native language be used in all direct contact with the child. However, as recipients of Federal financial assistance, part C lead agencies must comply with the requirements in Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin in programs or activities receiving Federal financial assistance.

Changes:

We have removed proposed § 303.25(a)(2).

Comment:

None.

Discussion:

To better align the definition of

native language

in these part C regulations with the definition of this term in section 602(2) of the Act and in 34 CFR 300.29 of the part B regulations and to ensure internal consistency between the

native language

definition in § 303.25(b) and the requirement in § 303.321 to use

native language when conducting evaluations and assessments, we have made the following changes.

First, we added to § 303.25(a) the definition of

native language

for individuals with limited English proficiency (LEP) that is in 34 CFR 300.29(a) of the part B regulations and we cross-referenced the statutory definition of LEP that is in section 602(18) of the Act. With this revision, § 303.25(a)(1) provides that the native language of an individual with limited English proficiency is the language normally used by that individual, or in the case of a child, the language normally used by the parents of the child, except as provided in § 303.25(a)(2). We added new § 303.25(a)(2) to provide that, for evaluations and assessments of a child, the native language of a child with limited English proficiency is the language normally used by the child if qualified personnel conducting the evaluation or assessment determine that this language is developmentally appropriate for the child given the child's age and communication skills.

These changes do not change the long-standing native language requirements in § 303.342, concerning IFSP meetings, § 303.420, concerning obtaining parental consent, and § 303.421, concerning prior written notice and procedural safeguards. As discussed in the

Analysis of Comments and Changes

for subpart E of this part, we have added a native language requirement in § 303.404, concerning the general notice of confidentiality procedures provided to parents.

Changes:

We have revised § 303.25(a)(1) to state that, when used with respect to an individual who is limited English proficient (LEP) as that term is defined in section 602(18) of IDEA, the term

native language

means—(1) The language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child, except as provided in § 303.25(a)(2). We also added a new paragraph (a)(2) to this section to provide that the native language for an individual who is limited English proficient means, for evaluations and assessments conducted pursuant to § 303.321(a)(5) and (a)(6), the language normally used by the child if determined developmentally appropriate for the child by qualified personnel conducting the evaluation or assessment.

Natural Environments (§ 303.26)

Comment:

Many commenters suggested changes to the proposed definition of

natural environments

in § 303.26. A few commenters recommended adding the phrase “community settings where children without disabilities participate” to make the definition consistent with section 632(4)(G) of the Act. Other commenters recommended retaining the reference to the “child's age peers” in current § 303.18. Some commenters recommended replacing the word “normal” with “typical” because the term “normal” is value-laden, vague, and open to interpretation.

One commenter recommended providing a list of natural environments in which an infant or toddler with a disability may receive services. Several commenters, some in response to § 303.26 and others in response to § 303.126, recommended adding specific examples of settings to § 303.26, including Early Head Start or child care programs, day care, play groups, churches, grocery stores, parks, public libraries, community settings, and settings where parents with infants and toddlers with similar disabilities gather.

Two other commenters recommended the definition indicate that a clinical setting could be the natural environment, particularly when the service requires the use of specialized equipment that cannot be transported to the child's home. One commenter expressed concern that mandating services to be provided in settings where non-disabled children are present may suggest that the alternative is less than acceptable. Another commenter recommended that the definition of

natural environments

require that services be provided within family routines and activities and opposed identifying specific settings.

Discussion:

Three sections of these regulations describe natural environments requirements that apply to States receiving funds under part C of the Act: §§ 303.26, 303.126, and 303.344(d)(1). We address comments that relate to § 303.26, regarding the definition of

natural environments,

in this discussion section. We address comments that relate to § 303.126, regarding the requirements related to natural environments in State applications, in the

Analysis of Comments and Changes

for subpart B. Finally, we address comments that relate to § 303.344(d)(1), regarding the requirements related to natural environments for IFSPs and IFSP Team decision-making processes concerning appropriate service settings, in the

Analysis of Comments and Changes

for subpart D.

The definition of

natural environments

in § 303.26 remains substantively unchanged from current § 303.18 and is consistent with the language in section 632(4)(G) of the Act, as well as the following statutory sections:

Section 635(a)(16) of the Act, which is reflected in § 303.126 and requires that the part C statewide system include policies and procedures to ensure that, consistent with section 636(d)(5) of the Act, to the maximum extent appropriate, early intervention services are provided in natural environments and the provision of early intervention services for any infant or toddler with a disability occurs in a setting other than the natural environment that is most appropriate, as determined by the parent and IFSP Team, only when early intervention cannot be achieved satisfactorily for the infant or toddler in the natural environment.

Section 636(d)(5) of the Act, which is reflected in § 303.344(d)(1)(ii) and which requires that an IFSP contain a statement of the natural environments in which early intervention services will be provided appropriately, including a justification of the extent, if any, to which the services will not be provided in the natural environment. Section 632(4)(G) of the Act provides that natural environments may include home and community settings. However, the reference to community settings was not included in the proposed regulations. We have added a reference to “community settings” in § 303.26 to ensure greater conformity with the statutory language, to address commenters' concerns, and to clarify that the term natural environments includes not only the home but community settings in which one finds same-aged children who do not have disabilities (diagnosed conditions, developmental delays, or, at the State's option, at-risk children).

The term “normal” was introduced into the regulations implementing the Individuals with Disabilities Education Act Amendments of 1991 and at that time, “normal” was commonly used and accepted. However, we agree with commenters that “normal” is less commonly used today and have replaced the word “normal” with the word “typical” in the definition of

natural environments

in § 303.26.

Concerning commenters' requests to add a list of settings or examples of community settings, it would not be appropriate or practicable to include a list of every setting that may be the natural environment for a particular child or those settings that may not be natural environments in these

regulations.

1

In some circumstances, a setting that is natural for one eligible child based on that child's outcomes, family routines, or the nature of the service may not be natural for another child. As further discussed in § 303.344(d)(1) of the

Analysis of Comments and Changes

for subpart D, the decision about whether an environment is the natural environment is an individualized decision made by an infant's or toddler's IFSP Team, which includes the parent. Additionally, a variety of community settings exist that may be natural environments, and we do not wish to limit the types of service settings that the IFSP Team may consider appropriate. Thus, we have not added a list of settings or specific community-based settings as requested by commenters.

1

Lead agencies currently provide data on service settings under Information Collection 1820-0578. Examples of community settings identified in response to this information collection include: child care centers (including family day care), preschools, regular nursery schools, early childhood centers, libraries, grocery stores, parks, restaurants, and community centers (

e.g.,

YMCA, Boys and Girls Clubs).

We appreciate the commenters' requests for clarification as to whether clinics, hospitals, or a service provider's office may be considered the natural environment in cases when specialized instrumentation or equipment that cannot be transported to the home is needed. Natural environments mean settings that are natural or typical for an infant or toddler without a disability. Section 635(a)(16) of the Act and § 303.126 require services be provided, to the maximum extent appropriate, to infants and toddlers with disabilities in natural environments (including the home and community settings). We do not believe that a clinic, hospital or service provider's office is a natural environment for an infant or toddler without a disability; therefore, such a setting would not be natural for an infant or toddler with a disability.

However, § 303.344(d)(1) requires that the identification of the early intervention service needed, as well as the appropriate setting for providing each service to an infant or toddler with a disability, be individualized decisions made by the IFSP Team based on that child's unique needs, family routines, and developmental outcomes. If a determination is made by the IFSP Team that, based on a review of all relevant information regarding the unique needs of the child, the child cannot satisfactorily achieve the identified early intervention outcomes in natural environments, then services could be provided in another environment (

e.g.

clinic, hospital, service provider's office). In such cases, a justification must be included in the IFSP, pursuant to § 303.344(d)(1)(ii)(A).

Concerning the comment to add a reference to family routines and activities to the definition of

natural environments,

§ 303.26 allows for and supports providing services within family routines and activities.

Changes:

We have added in the definition of

natural environments

in § 303.26 the phrase “or community settings” after “home” and the phrase “same-aged” before the phrase “infant or toddler without a disability.” We also have replaced the reference to “normal” with “typical.”

Parent (§ 303.27)

Comment:

While a few commenters supported the changes to the definition of

parent,

a majority of commenters did not support the proposed changes and recommended that the definition of

parent

in § 303.27 be amended. One commenter requested that “non-relative caregivers” be included in the definition of parent.

Discussion:

The definition of

parent

in § 303.27 reflects section 602(23) of the Act and is consistent with the definition of

parent

in 34 CFR 300.30 of the part B regulations. Adding “non-relative caregivers” to these regulations is not necessary because when the child lives with a non-relative caregiver, that individual is considered a parent under the provisions in § 303.27(a)(4). Further, including non-relative caregivers with whom the child does not reside in the definition of

parent

would not be consistent with section 602(23)(c) of the Act.

Changes:

None.

Comment:

A few commenters suggested that the definition of

parent

include a specific reference to foster child, in addition to the current reference to ward of the State.

Discussion:

The definition of

ward of the State

in § 303.37 includes foster children. Therefore, adding “foster child” to “ward of the State” in the definition of

parent

would be redundant.

Changes:

None.

Comment:

One commenter recommended that the Department clarify the definition of

parent

to provide that foster parents, absent custody or other legal right, do not have the right to consent to or deny early intervention services. Another commenter requested clarification concerning the role of the foster parent when the biological parent is available, as well as when the whereabouts of the biological parent are unknown or when the biological parent is incarcerated. The commenter also requested guidance on how assertively the State should seek out the biological parent to obtain consent.

Discussion:

Section 602(23) of the Act provides that a foster parent may act as the parent for the purposes of part C of the Act, unless the foster parent is prohibited from acting as the parent by State law. Thus, it would be inconsistent with the Act to require that a foster parent have custody of the child, or other legal right, to act on the child's behalf in matters of early intervention services if, under State law, the foster parent is not precluded from serving as the parent for that child.

When more than one individual seeks to act as the parent, § 303.27 provides that the biological parent attempting to act as the parent is presumed to be the parent unless that person does not have legal authority to make decisions for the infant or toddler concerning early intervention service matters, or there is a judicial order or decree specifying another individual to act as the parent under part C of the Act. Thus, when the whereabouts of the biological parent are unknown (

e.g.,

cases in which the parent is concerned about revealing his or her location due to safety concerns) or the biological parent is incarcerated, but the parent is attempting to act as the parent, the biological parent would be presumed to be the parent. However, when the whereabouts of the biological parent are unknown or the parent is incarcerated, and the biological parent is not attempting to act as the parent, an individual identified in § 303.27, including the foster parent would be presumed to be the parent unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent.

The Act and the regulations are silent on how assertively a State, for purposes of obtaining consent, should seek out the biological parent of an infant or toddler who is undergoing an eligibility determination or who has been determined eligible to receive early intervention services under part C of the Act. It is the Department's position that these regulations should not prescribe the efforts, including specific procedures or timelines, that a State must make in its attempts to contact the biological parent(s). The procedures and timelines will vary depending on numerous factors, including how judicial orders or decrees are routinely handled in a State or locality, and are best left to the State and local officials

to determine in light of State law and policy.

Changes:

None.

Comment:

Some commenters asked that we clarify the phrase “when attempting to act as the parent” as used in § 303.27(b)(1) to describe the situation when a biological or adoptive parent attempts to act as the parent and more than one party is qualified under the regulations to act as a parent. One commenter noted that keeping the biological parent involved in decisions concerning the child is always important because the child may return to the care of the biological parent.

A few commenters suggested that the determination of whether a parent is “attempting to act” as the parent must be based on a comprehensive assessment of whether the parent is attempting to perform her or his role as a participant and decision-maker in the early intervention process and not on whether a parent misses a meeting. One commenter requested that the phrase “attempting to act as a parent” be deleted if specific clarification is not offered. Another commenter raised concerns that lead agencies will misinterpret this paragraph to mean that biological or adoptive parents must affirmatively assert their rights or take action in order to be presumed to be the parent for the purposes of this section. Another commenter requested that the regulations reinforce the affirmative obligation under these regulations to provide notice to, and accommodate the schedules of, biological and adoptive parents when scheduling IFSP meetings.

Discussion:

Section 303.27(b) was added to assist lead agencies and EIS providers in determining the appropriate individuals who may act as a “parent” under part C of the Act in those difficult situations when more than one individual is attempting to act as a parent under these regulations. This definition recognizes that the biological or adoptive parent is presumed to be the parent for purposes of making decisions for a child unless those rights have been legally terminated or modified.

The phrase “attempting to act as a parent” refers to situations when an individual attempts to assume the rights and responsibilities of a parent under the Act and these regulations. An individual may “attempt to act as a parent” under the Act in many situations, such as providing consent for an evaluation and assessment, attending an IFSP Team meeting, and filing a complaint. Identifying all of the circumstances under which an individual may “attempt to act as a parent” would be difficult and is unnecessary.

The biological or adoptive parent would be presumed to be the parent under these regulations, unless a question is raised about their legal authority. There is nothing in the Act that requires the biological or adoptive parent to affirmatively assert their rights to be presumed to be the parent.

Pursuant to § 303.27(b), unless a judicial order or decree identifies a specific person or persons to act as the parent of an infant or toddler, the biological or adoptive parent, when attempting to act as a parent, must be determined to be the “parent” for purposes of part C of the Act and thus retains all the rights and responsibilities of a parent under the Act, including the right to receive written notice and attend meetings.

Changes:

None.

Comment:

One commenter requested that the Department remove the reference to “health” decisions in proposed § 303.27(b)(1) and (b)(2), regarding individuals that may act as the parent of an infant or toddler with a disability for purposes of making health, educational, or early intervention services decisions for the child. The commenter stated that decisions concerning a child's health could cover a broad range of issues and a judicial decision to appoint a decision-maker to make health decisions for an eligible infant or toddler in place of the child's biological or adoptive parent should not necessarily have an impact on a biological or adoptive parent's authority to make early intervention and educational decisions.

Discussion:

We agree with the commenter that a judge may appoint a person to make health-related decisions for an eligible infant or toddler without intending to limit the biological parent's or adoptive parent's role in early intervention decision-making. Therefore, we have revised paragraphs (b)(1) and (b)(2) to remove the reference to “health” decisions.

Changes:

We have removed the word “health” from § 303.27(b)(1) and (b)(2).

Comment:

One commenter recommended that the Department clarify that a judicial appointment of a parent for the purposes of part C of the Act may be a temporary or permanent appointment.

Discussion:

The length of a judicial appointment of a parent for the purposes of part C of the Act is at the discretion of the judge issuing the appointment, is subject to State law, and is often decided on a case-by-case basis. State law or the judge issuing the appointment would determine whether an appointment is temporary or permanent and the length of any appointment. Therefore, we have not revised the definition as requested.

Changes:

None.

Comment:

None.

Discussion:

For clarity and to eliminate redundancy, we have revised the definition of

parent

in § 303.27(b)(2) to state that if an EIS provider or a public agency provides any services to a child or any family member of that child, that EIS provider or public agency may not act as the parent for that child. We have replaced “early intervention services or other services” in proposed § 303.27(b)(2) with “any services” in new § 303.27(b)(2). This change is necessary to make clear that if a public agency provides services other than early intervention services to a family member of the child, that public agency may not serve as the parent for that child.

This change strengthens protections against potential conflicts of interest by providing that a public agency that provides services to a child or any family member of that child cannot act as the parent under these regulations.

Changes:

We have replaced in § 303.27(b)(2) the phrase “an EIS provider or public agency that provides early intervention or other services to a child or any family member of that child may not act as the parent” with “if an EIS provider or a public agency provides any services to a child or any family member of that child, that EIS provider or public agency may not act as the parent for that child.”

Comment:

Some commenters requested that the phrase “other services” as used in proposed § 303.27(b)(2) be replaced with “child welfare services.” Another commenter asked if law guardians and child welfare case managers appointed by a judge would meet the definition of

parent

because neither “law guardian” nor “child welfare case manager” meets the definition of

public agency

in § 303.30. One commenter requested that private agencies be added to the list of entities that are excluded from acting as a parent in § 303.27(b)(2) because private agencies should not have the option to serve in the place of a parent.

Discussion:

As discussed previously, we have revised the definition of

parent

to state that if an EIS provider or a public agency provides any services to a child or any family member of that child, that EIS provider or public agency may not act as the parent for that child, which would preclude a public agency that provides child welfare services (including a child welfare case manager) to the child or any family member of the

child from acting as the parent for that child.

The meaning of the term “law guardians” referred to in the comments is unclear. However, a guardian with a limited appointment that does not authorize the guardian to act as a parent of the child generally, or does not authorize the guardian to make early intervention services decisions for the child, is not a

parent

within the meaning of these regulations. The legal authority that the judicial order grants to the individual is the controlling factor, not the term used to identify that individual. Whether a person appointed as a financial guardian, guardian

ad litem,

or other guardian (

e.g.,

a law guardian) has the requisite authority to be considered a

parent

under this section depends on State law and the nature of the person's appointment.

Adding a reference to private agencies in § 303.27(b)(2), regarding entities that are prohibited from acting as a parent, is unnecessary because the language in § 303.27(b)(2) expressly references an EIS provider and the definition of

EIS provider

in § 303.12 includes any entity, whether public, private, or non-profit, or an individual that provides early intervention services under part C of the Act, whether or not that entity receives Federal funds under part C of the Act. Therefore, a private agency that provides early intervention services to a child cannot serve as the parent for that child.

Changes:

None.

Parent Training and Information Center (§ 303.28)

Comment:

One commenter recommended adding language to this definition to require that the parent training and information centers provide training that is targeted to all family members.

Discussion:

Making the change suggested by the commenter is not appropriate because § 303.28 defines

parent training and information centers

solely by reference to sections 671 and 672 of the Act, which provide the substantive definitions of

parent training and information centers

and

community parent resource centers

and identify the responsibilities and activities of these centers. We cannot include in these regulations changes that would alter the statutory requirements for these centers under the Act.

Changes:

None.

Personally Identifiable Information (§ 303.29)

Comment:

Some commenters requested clarification of the confidentiality provisions. One commenter requested that the information protected under the part C confidentiality provisions align with the information that is protected under FERPA.

Discussion:

We agree it is important to align the definition of personally identifiable information in these regulations with the definition of that same term in 34 CFR 99.3 under the Family Educational Rights and Privacy Act (FERPA) (in section 444 of the General Education Provisions Act). Examples of data that would be considered personally identifiable information under both the FERPA regulations in 34 CFR 99.3, as well as under part C of the Act, include the child's or parent's name and social security number, date and place of birth, race, ethnicity, gender, physical description, and disability or level of developmental delay, because some of this information can also indirectly identify an individual depending on the combination of factors and level of detail released.

The definition of personally identifiable information in 34 CFR 99.3 was the subject of the Department's December 9, 2008 Final Regulations under FERPA in the

Federal Register

(73 FR 74805). Given that the confidentiality provisions in §§ 303.401 through 303.417 reference other specific FERPA provisions, we believe it is appropriate to add in § 303.29 a cross-reference to the FERPA definition, as amended, rather than separately revising the definition in these regulations. Thus, we adopt by reference in § 303.29, with appropriate modifications, the FERPA definition in § 99.3, as amended.

Changes:

We have revised the definition of personally identifiable information in § 303.29 to cross-reference the definition in 34 CFR 99.3, as amended, except that the terms “student” and “school” mean “child” and “EIS providers” respectively as used in this part.

Public Agency (§ 303.30)

Comment:

None.

Discussion:

We use the term public agency in this part to refer to public agencies that provide early intervention services as well as public agencies that provide other services or are sources of funding for early intervention services. Therefore, we have revised the definition of

public agency

in § 303.30 to make clear that the term includes the lead agency and any other agency or political subdivision of the State. We also have clarified, in § 303.12, that a public agency that is responsible for providing early intervention services to infants and toddlers with disabilities under this part and their families is an

EIS provider

under § 303.12.

Changes:

We have removed the phrase “that is responsible for providing early intervention services to infants and toddlers with disabilities under this part and their families” from § 303.30.

Qualified Personnel (§ 303.31)

Comment:

One commenter requested that the word “area” in the definition of

qualified personnel

in § 303.31 be changed to “type of early intervention services.” The commenter expressed concern that an individual could provide services in the “area” of occupational therapy, but not be a licensed or qualified occupational therapist. Another commenter requested clarification of the role of qualified personnel in conducting evaluations.

Discussion:

States have the authority to establish standards for licensure or certification and to determine on a case-by-case basis personnel who meet those standards. Therefore, an individual could only provide services in the area of occupational therapy if that individual meets State approved or recognized certification, licensing, registration or other comparable requirements that apply to the area in which the individual is providing early intervention services. Paraprofessionals or assistants could assist in the provision of occupational therapy if they are appropriately trained and supervised in accordance with State law, regulation, or written policy to assist in the provision of early intervention services under part C of the Act to infants and toddlers with disabilities pursuant to § 303.119(c).

The term “area” as used in § 303.31 refers to the specific domain in which the individual has qualified through State certification, licensing, registration, or other comparable requirements to provide early intervention services. Thus, revising § 303.31 as suggested by this commenter is not necessary.

We agree with the commenter's request to clarify the role of qualified personnel in conducting evaluations. Thus, we have added in § 303.31 a reference to conducting evaluations or assessments to reflect the long-standing requirement in current § 303.322 and new § 303.321 (proposed § 303.320) that evaluations and assessments must be conducted by qualified personnel.

Changes:

We have added “conducting evaluations or assessments or” before “providing early intervention services.”

Scientifically Based Research (§ 303.32)

Comment:

None.

Discussion:

We determined that adding a definition for

scientifically based research

to subpart A would be helpful because the definition will provide clarity and understanding when the term scientifically based research is used in this part. Thus, we have added the defined term

scientifically based research

and provided that the term has the same meaning as in section 9101(37) of the Elementary and Secondary Education Act of 1965, as amended (ESEA). When applying this definition to the regulations under part C of the Act, any reference to “education activities and programs” refers to “early intervention services.”

Change:

A cross-reference to the definition of

scientifically based research

in section 9101(37) of the ESEA has been added as new § 303.32. Subsequent definitions have been renumbered accordingly.

Service Coordination Services (Case Management) (Proposed § 303.33) (New § 303.34)

Comment:

Numerous commenters expressed a need for clarification of this section. A substantial number of commenters stated that the regulations should have included the language from the definition of

service coordination (case management)

in current § 303.23(a)(2)(ii), which provides that the service coordinator is responsible for “serving as the single point of contact in helping parents to obtain the services and assistance they need.” The commenters suggested that only requiring the service coordinator to assist parents in “gaining access to * * * services,” in proposed § 303.33(a)(2), would decrease the level of assistance and limit the types of services that families will receive.

Discussion:

We agree that the proposed language and structure of this section may cause confusion and, therefore, we have made several structural and organizational revisions to improve clarity and readability. Additionally, while the proposed language in this section was not meant to limit or decrease the level of assistance that a service coordinator would provide to an infant or toddler with a disability and his or her family, we recognize that removing the phrase “serving as the single point of contact in helping parents to obtain the services and assistance they need” from the regulations has caused concern and confusion. Therefore, we have clarified in these final regulations that the service coordinator is responsible for assisting parents of infants and toddlers with disabilities in obtaining access to needed early intervention services and other services identified in the IFSP. Additionally, for clarity, we have provided examples of activities that the service coordinator may engage in when assisting parents in obtaining access to needed early intervention services and other services identified in the IFSP.

We have further clarified that service coordination services assist and enable an infant or toddler with a disability and the child's family to receive the services and rights, including procedural safeguards, required under part C of the Act. Such activities include: (1) The coordination of early intervention services and other services that the child needs or is being provided; (2) conducting referral and other activities; (3) ensuring the timely provision of services; and (4) conducting follow-up activities to determine that appropriate part C services are being provided.

Changes:

We have reorganized paragraph (a) of new § 303.34 (proposed § 303.33(a)) as follows: Paragraph (a)(1) defines

service coordination services;

paragraph (a)(2) provides that each infant or toddler with a disability and the child's family must be provided a service coordinator and describes the responsibilities of the service coordinator; and paragraph (a)(3) describes the activities involved in service coordination. Section 303.34(b) (proposed § 303.33(b)) has been revised to indicate in § 303.34(b)(1) that service coordination services include assisting parents of infants and toddlers with disabilities in obtaining access to needed early intervention services and other services identified in the IFSP. Section 303.34(b)(2) has been added to indicate that service coordination services include coordinating the provision of early intervention services and other services (such as educational, social, and medical services that are not provided for diagnostic or evaluative purposes) that the child needs or is being provided. We have modified § 303.34(b)(5) (proposed § 303.33(b)(3)) to add the phrase “conducting referral and other activities” as an example of activities that may assist families in identifying available EIS providers. We also have revised § 303.34(b)(6) (proposed § 303.33(b)(4)) to add the phrase “to ensure that the services are provided in a timely manner.” Finally, we have added § 303.34(b)(7) to clarify that service coordination services also include conducting follow-up activities to determine that appropriate part C services are being provided.

Comment:

Several commenters expressed concern that the proposed regulation was unclear about who could serve in the capacity of a service coordinator, and some commenters requested that the regulations specify exactly who may serve as a service coordinator. Other commenters expressed concern that the qualifications for service coordinators may have been eliminated. One commenter recommended modifying the definition to require that a service coordinator be selected from the profession m

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