Sept. 28, 2011 (76 FR 60140)
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Sept. 28, 2011 (76 FR 60140)
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Sept. 28, 2011 (76 FR 60140)
Vol. 76 Wednesday,
No. 188 September 28, 2011
Part II
Department of Education
34 CFR Parts 300 and 303
Early Intervention Program for Infants and Toddlers With Disabilities;
Assistance to States for the Education of Children With Disabilities; Fi
nal
Rule and Proposed Rule
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60140 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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
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60141 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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
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60142 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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
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60143 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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
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60144 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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.
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60145 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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
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60146 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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
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60147 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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
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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
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60149 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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
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60150 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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.
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60151 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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
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60152 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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.
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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
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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
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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
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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
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60157 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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
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60158 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
1Lead 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).
regulations. 1In 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. 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
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60159 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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
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60160 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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.’’
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60161 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
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 most immediately relevant to
the needs of the child or family. Discussion: Section 303.13(a)(7)
requires that service coordination
services must be provided by qualified
personnel as defined in § 303.31. The
definition of qualified personnel in
§ 303.31 states that personnel are
qualified if they meet State-approved or
State-recognized certification, licensing,
registration, or other comparable
requirements that apply to the area in
which the individuals are providing
early intervention services.
Additionally, § 303.344(g), which
provides that an IFSP contain
information about the service
coordinator, requires that the service
coordinator be selected from the
profession most immediately relevant to
the child’s or family’s needs or be a
person who is otherwise qualified to
carry out all applicable responsibilities
under part C of the Act. Thus, repeating
these criteria in new § 303.34 (proposed
§ 303.33) is not necessary. Changes: None.
Comment: Some commenters
suggested that the regulations could be
read to require parents to coordinate
early intervention services. Two
commenters expressed concern that, as
proposed, the regulation could be read
to mean that more than one person may
fill the role of a service coordinator for
a particular infant or toddler and,
thereby compromise consistency and
quality of services. Discussion: Nothing in these
regulations requires a parent to
coordinate early intervention services.
Section 303.34(a)(2)(i) (proposed
§ 303.33(a)(3)) specifies that the service
coordinator, or case manager, is
responsible for coordinating all services
required under part 303 across agency
lines. Section 303.34(a)(2)(ii) (proposed
§ 303.33(a)(3)) stipulates that a service
coordinator, or case manager, serves as
the single point of contact for the
family. This provision means that only
one person may serve as the service
coordinator or case manager for a
particular family at a given time.
However, the regulations do not
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60162 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
prohibit more than one person from
serving as the service coordinator or
case manager over the entire period that
the eligible infant or toddler is receiving
early intervention services under part C
of the Act, provided that only one
service coordinator or case manager is
assigned to an infant or toddler at a
given time to ensure that parents and
EIS providers for a particular child have
a single point of contact.
Changes: None.
Comment: One commenter requested
that the Department clarify the
statement in proposed § 303.33(c) that
the lead agency’s or an EIS provider’s
use of the term service coordination or
service coordination services does not
preclude characterization of the services
as case management or any other service
that is covered by another payor of last
resort. Discussion: The legislative history of
the 1991 amendments to the Act
indicates that use of the term ‘‘service
coordination’’ is not intended to affect
authority to seek reimbursement for
services provided under Medicaid or
any other legislation that makes
reference to ‘‘case management’’
services. See H.R. Rep. No. 198, 102d
Cong., 1st Sess. 12 (1991); S. Rep. No.
84, 102d Cong., 1st Sess. 20 (1991).
Accordingly, this paragraph is intended
to reflect the intent of Congress. For the
same reason, we added the parenthetical
reference to case management in the
title of this section. Changes: None.
Comment: One commenter requested
that the definition of service
coordination services (case
management) be amended to include
those services that are not directly early
intervention services, but that are
essential to the well-being of the child
and the family, in accordance with
§ 303.344(e). Section 303.344(e)
provides that a child’s IFSP must
identify medical and other services that
the child or family member needs or is
receiving through other sources, but that
are neither required nor funded under
part C of the Act. Discussion: The commenters’ concern
is addressed sufficiently by the
requirements in new § 303.34(a)(3)(ii)
(proposed § 303.33(a)(2)), which
provides that service coordination
involves coordinating the other services
identified in the IFSP under § 303.344(e)
that are needed or are being provided to
the infant or toddler with a disability
and that child’s family. Changes: None.
Comment: One commenter
recommended that proposed
§ 303.33(a)(2), which provides that a
service coordinator or case manager must assist parents of infants and
toddlers with disabilities to coordinate
early intervention services and other
services identified in the IFSP that are
needed or are being provided to the
infant or toddler with a disability, be
revised to state that a service
coordinator or case manager must
coordinate early intervention and other
services identified in the IFSP for ‘‘other
family members’’ in addition to
‘‘parents.’’
Discussion: Including a reference to
‘‘other family members’’ in this section
would be inconsistent with sections
636(e) and 639(a)(3) of the Act, which
provide that a parent, and not ‘‘other
family members,’’ has the authority to
consent to the eligible child and family
member’s receipt of any early
intervention services identified in the
IFSP by the IFSP Team. Changes: None.
Subpart B—State Eligibility for a Grant
and Requirements for a Statewide
System
State Eligibility—Requirements for a
Grant Under This Part (§ 303.101) Comment: A few commenters
recommended adding the phrase
‘‘Native American’’ before the words
‘‘Indian infants and toddler’’ in
§ 303.101(a)(1)(i). A few commenters
suggested that in addition to referencing
‘‘wards of the State,’’ the regulations,
including § 303.101(a)(1)(iii), should
also refer to ‘‘children in foster care.’’ Discussion: Section 303.101(a)(1)(i)
provides that, as a grant condition, a
State must assure that it has adopted a
policy that appropriate early
intervention services are available to all
infants and toddlers with disabilities in
the State and their families, including
Indian infants and toddlers with
disabilities and their families residing
on a reservation geographically located
in the State. Adding the phrase ‘‘Native
American’’ before the words ‘‘Indian
infants and toddlers’’ in
§ 303.101(a)(1)(i) is not appropriate
because the language in
§ 303.101(a)(1)(i) reflects the language in
section 634(1) of the Act, which does
not use the term ‘‘Native American’’ in
referring to Indian infants and toddlers.
Additionally, it is not appropriate to
add the phrase ‘‘Native American’’
before the words ‘‘Indian infants and
toddlers’’ in § 303.101(a)(1)(i) because
the term Indian is specifically defined
in section 602(12) of the Act and
§ 303.19(a) of these regulations. Given
that Indian is a defined term in these
regulations, it could cause confusion to
refer to ‘‘Native American’’ Indian
infants and toddlers in this section. Similarly, adding the phrase
‘‘children in foster care’’ each time the
regulations refer to ‘‘wards of the State’’
is unnecessary because the definition of
wards of the State in § 303.37 makes
clear that a foster child is a ward of the
State unless that child has a foster
parent who meets the definition of
parent in § 303.27. Therefore, adding
the phrase ‘‘children in foster care’’ to
§ 303.101(a)(1)(iii) would be redundant. Changes: None.
Comment: None.
Discussion: To incorporate the long-
standing requirement that States have in
place policies and procedures that
address each of the components of the
part C statewide system, we have
clarified in § 303.101(a)(2) that the
State’s application must include an
assurance that the State has in effect
policies and procedures that address
each of the components required in
§§ 303.111 through 303.126. Changes: We have added to
§ 303.101(a)(2) the words ‘‘policies and
procedures that address’’ after the word
‘‘including’’ and before the words ‘‘at a
minimum.’’ Comment: None.
Discussion: Based on further review,
we have determined that it is more
appropriate to describe in subpart B—
rather than subpart C—of these
regulations the State’s obligation to
obtain prior Secretarial approval of
those policies and procedures that are
required to be submitted with the State’s
application. For this reason, we have
moved proposed § 303.208(b) to new
§ 303.101(c), and further specified in
§ 303.101(c), those policies and
procedures that are required to be
submitted as part of the State’s
application. Changes: We have added a new
§ 303.101(c), based on proposed
§ 303.208(b), to describe the State’s
obligation to obtain approval by the
Secretary before implementing any
policy or procedure that is required to
be submitted as part of its application
under §§ 303.203, 303.204, 303.206,
303.207, 303.208, 303.209, and 303.211.
Acquisition of Equipment and
Construction or Alteration of Facilities
(§ 303.104)
Comment: None.
Discussion: The word ‘‘Act’’ was
inadvertently omitted from the title
‘‘Americans with Disabilities
Accessibility Guidelines for Buildings
and Facilities’’ in § 303.104(b)(1). We
have revised this section to reflect the
correct title of the guidelines. Changes: We have added the word
‘‘Act’’ following the words ‘‘Americans
with Disabilities.’’
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60163 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
Positive Efforts To Employ and Advance
Qualified Individuals With Disabilities
(§ 303.105)
Comment: Some commenters
requested that this section be amended
to include positive efforts to employ and
advance parents of individuals with
disabilities because such efforts would
benefit the part C system by encouraging
parent leadership at all levels. A few
commenters indicated general support
for the language in this section, but
requested that the regulations require
States to report to the Office of Special
Education Programs (OSEP) on their
plan and efforts to employ qualified
individuals with disabilities. Discussion: We agree with the
commenter that positive efforts to
employ and advance parents of
individuals with disabilities would
encourage parent participation in State
part C programs. However, the language
in § 303.105 reflects the requirement in
section 606 of the Act, concerning the
employment and advancement of
qualified individuals with disabilities
themselves, and, therefore, we do not
believe that it is appropriate to expand
this requirement to include the parents
of individuals with disabilities, as
suggested by the commenters. Nothing
in the Act precludes a State from
making positive efforts to employ and
advance in employment parents of
individuals with disabilities if such a
policy is consistent with State statute,
regulation, and policy. Additionally,
section 606 of the Act does not require
that States report to OSEP on their
efforts to employ and advance qualified
individuals with disabilities. In carrying
out its monitoring function, OSEP may
review, as appropriate, State plans and
efforts to employ and advance qualified
individuals with disabilities, but the
Department’s position is that it would
not be useful to require States to report
this information to OSEP because State
hiring and retention plans and efforts
vary based on the individual
employment needs of each State as do
the State laws, regulations, or written
policies that govern the certification,
licensing, and registration of qualified
personnel providing early intervention
services in each State part C program. Changes: None.
State Definition of Developmental Delay
(§ 303.111) Comment: Some commenters strongly
supported the flexibility afforded States
through the regulatory language in
§ 303.111, regarding a State’s definition
of developmental delay. Other
commenters requested that the
Department define the term ‘‘rigorous’’ in § 303.111. One commenter requested
that the regulations clarify that a
‘‘rigorous’’ definition of developmental
delay
does not necessarily mean that
States must change their definitions to
make them more rigorous than they
were before the enactment of the 2004
amendments to the Act. The same
commenter expressed concern that any
definition of developmental delay under
§ 303.111 would exclude certain
children who are eligible under the
State’s existing definition of
developmental delay. Another commenter suggested that
§ 303.111 be amended to include
‘‘children’’ with delays, and not only
‘‘infants and toddlers,’’ because of a
State’s option to make part C services
available to children ages three and
older pursuant to § 303.211. Discussion: The definition of
developmental delay in § 303.111,
which is aligned with section 635(a)(1)
of the Act, replaces the definition of
developmental delay in current
§§ 303.161 and 303.300. Consistent with
§ 303.203(c), a State’s definition of
developmental delay is considered to be
rigorous under part C of the Act if the
definition meets the requirements in
§ 303.111(a) and (b), and, was
established in accordance with the
public participation requirements in
new § 303.208(b). As required in § 303.111, a State’s
definition of developmental delay must
include: (1) Consistent with § 303.321, a
description of the evaluation and
assessment procedures that will be used
to measure a child’s development; and
(2) a description of the specific level of
developmental delay in functioning or
other comparable criteria that constitute
a developmental delay in one or more
of the developmental areas identified in
§ 303.21(a)(1). Additionally, in order to
be ‘‘rigorous’’, each State’s definition of
developmental delay must be
established in accordance with the
public participation requirements in
new § 303.208(b) to enable parents, EIS
providers, Council members and other
stakeholders and members of the public
to comment on the State’s definition.
Section 303.111 does not require a State
to revise, or preclude a State from using,
its existing definition of developmental
delay as long as the definition meets the
requirements in § 303.111 and was
established in accordance with the
public participation requirements that
are set forth in new § 303.208(b) after
December 2004. We decline to replace the phrase
‘‘infants and toddlers,’’ as used in
§ 303.111, with the term ‘‘child,’’ as one
commenter requested, because this
change is unnecessary. The definition of ‘‘infant or toddler with a disability’’ in
§ 303.21(c) includes any child to whom
the State elects to offer part C services
under section 635(c) of the Act and
§ 303.211.
Changes: None.
Availability of Early Intervention
Services (§ 303.112) Comment: Several commenters
requested that specific terms in this
section be defined or clarified. Many
commenters requested that these
regulations define the term
‘‘scientifically based’’ and that the
definition of the term be aligned, similar
to part B of the Act, with the definition
in Title I of ESEA. A few commenters
recommended replacing the phrase
‘‘scientifically based’’ with ‘‘peer-
reviewed’’ (or vice versa) to provide for
consistency throughout the regulations.
One commenter requested that the
Department clarify that ‘‘scientifically
based research’’ and ‘‘peer-reviewed
research’’ are two distinct terms, that
they cannot be used interchangeably,
and that the terms apply to both lead
agencies and IFSP Teams. Finally, one
commenter requested that the
regulations define the term
‘‘practicable.’’ Discussion: We agree with the
commenters that the definitions of
‘‘scientifically based research’’ under
parts B and C of the Act should be
aligned with and explicitly cross-
reference the definition of
‘‘scientifically based research’’ from
section 9101(37) of the ESEA. We have
added a cross-reference to this
definition in new § 303.32. We also agree that the term
‘‘scientifically based research’’ is not
interchangeable with ‘‘peer-reviewed
research.’’ The definition of
scientifically based research is broader
and includes the concept of peer-
reviewed research. Peer-reviewed
research generally refers to research that
is reviewed by qualified and
independent reviewers to ensure that
the quality of the information meets the
standards of the field before the research
is published. However, there is no
single definition of ‘‘peer-reviewed
research’’ because the review process
varies depending on the type of
information being reviewed. We do not agree with the commenter,
however, that the terms ‘‘scientifically
based research’’ and ‘‘peer-reviewed
research’’ apply to both lead agencies
and IFSP Teams because these terms are
used in different sections of the
regulations for different purposes. Use of the term ‘‘scientifically based
research’’ in § 303.112 reflects the
requirement in section 635(a)(2) of the
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60164 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
Act that a lead agency must include as
a part of its part C statewide system a
policy that ensures that appropriate
early intervention services based on
scientifically based research, to the
extent practicable, are available to all
infants and toddlers with disabilities
and their families. The use of the term
peer-reviewed research, on the other
hand, reflects the requirement in section
636(d)(4) of the Act, which provides
that an IFSP must include a statement
of the specific early intervention
services, based on peer-reviewed
research (to the extent practicable), that
are necessary to meet the unique needs
of the child and the family to achieve
the results or outcomes as required by
these regulations. Finally, with regard to
the comment requesting that the
Department define the term
‘‘practicable’’ in both §§ 303.112 and
303.344(d)(1), it is the Department’s
position that this change is not
necessary. In the context of these
regulations, the term has its plain
meaning (i.e., feasible and possible). As
used in § 303.112, ensuring that
‘‘appropriate early intervention services
are based on scientifically based
research, to the extent practicable’’
means that services and supports should
be based on scientifically based research
to the extent that it is feasible or
possible, given the availability of
scientifically based research concerning
a particular early intervention service. Changes: None.
Comment: Some commenters
suggested revising § 303.112 to require
States to ensure that early intervention
services are not only available, but also
accessible, to all infants and toddlers
with disabilities and their families,
including families in rural areas. Discussion: Section 303.112 reflects
the language of, and requirements in,
section 635(a)(2) of the Act that each
part C statewide system must have in
effect a State policy that ensures that
appropriate early intervention services,
based on scientifically based research,
to the extent practicable, are available to
all infants and toddlers with disabilities
and their families, including Indian
infants and toddlers with disabilities
and their families residing on a
reservation geographically located in the
State, and infants and toddlers with
disabilities who are homeless children
and their families. Children living in
rural areas are a historically
underrepresented population and as
stated in § 303.1(d), one of the purposes
of this program is to enhance the
capacity of State and local agencies and
service providers to identify, evaluate,
and meet the needs of rural children.
Additionally, under § 303.227(a), States must ensure that policies and practices
have been adopted to ensure that
traditionally underserved groups,
including minority, low-income,
homeless, and rural families and
children with disabilities who are wards
of the State, are meaningfully involved
in the planning and implementation of
all the requirements of this part. Given
these requirements, we expect that
accessibility issues, such as
transportation, that may be specific to
these groups will be addressed by the
lead agency.
Lead agencies must comply with the
requirements in Title II of the
Americans with Disabilities Act of 1990
(ADA), which apply to public entities
(i.e., State and local governments), and
the requirements in section 504 of the
Rehabilitation Act of 1973 (Section 504),
which apply to recipients of Federal
financial assistance. Both Title II of the
ADA and Section 504 prohibit
discrimination on the basis of disability,
including exclusion from participation
in, and the denial of the benefits of, any
program or activity of a lead agency.
Both of these laws and their
implementing regulations generally
require appropriate auxiliary aids and
services be made available where
necessary to afford a qualified
individual with a disability an equal
opportunity to participate in, and enjoy
the benefits of, any program or activity
conducted by a lead agency that
receives a grant under part C of the Act.
Thus, lead agencies are required to
ensure that early intervention services
are accessible under Title II of the ADA
and Section 504, as appropriate. It
would be redundant for the part C
regulations to include these accessibility
requirements. Changes: None.
Comment: Two commenters
recommended that we specifically
reference, in § 303.112, children who
have experienced or have been exposed
to abuse, neglect, or family violence. Discussion: Section 303.112 of these
regulations reflects the requirement in
section 635(a)(2) of the Act that a State’s
system include a policy that ensures
that early intervention services are
available to all infants and toddlers with
disabilities and their families, including
Indian children with disabilities and
their families residing on a reservation
geographically located in the State and
homeless children with disabilities and
their families. We define the word
including in § 303.18 of subpart A of
these regulations to mean that the items
named are not all the possible items that
are covered, whether like or unlike the
ones named. The use of the term
‘‘including’’ in § 303.112 is meant to make clear that the list of groups (i.e.,
Indian children and homeless children)
is not exhaustive. We also note that
provisions regarding the identification
of infants and toddlers with disabilities
who have experienced or have been
exposed to abuse, neglect, or family
violence (and other subpopulations that
were specifically added in the 2004
Amendments to the Act) are reflected in
§ 303.302(c) of these regulations, which
address the scope and coordination of
the State’s child find system. Thus,
revising § 303.112 to specifically
identify additional subgroups of infants
and toddlers with disabilities and their
families is not necessary.
Changes: None.
Evaluation, Assessment, and
Nondiscriminatory Procedures
(§ 303.113) Comment: Two commenters
recommended adding the word
‘‘voluntary’’ before ‘‘family-directed
identification of the needs of the
family’’ in paragraph (a)(2) of this
section to clarify that the part C program
is voluntary and that the assessment
cannot take place unless and until
parents agree to the assessment. Discussion: We agree that the family-
directed identification of the needs of
the family referenced in § 303.113(a)(2)
is voluntary on the part of the family.
However, it is not necessary to revise
§ 303.113 because, in § 303.113(b), we
make clear that the family assessment
must meet the requirements in
§ 303.321. Section 303.321(c)(2), in turn,
provides that the family assessment
must be voluntary on the part of the
family. We decline to make the
requested change because it would be
redundant to repeat the family
assessment requirements in § 303.113. Changes: None.
Individualized Family Service Plans
(IFSPs) (§ 303.114) Comment: One commenter
recommended adding the words ‘‘and
his/her family’’ after the term
‘‘disability’’ in this section. Discussion: We agree that the IFSP is
designed to address the needs of both
the infant and toddler with a disability
and the child’s family. Accordingly, we
have revised § 303.114 to make clear
that the State’s system must provide an
IFSP for each infant or toddler with a
disability and the child’s family in the
State. Additionally, we have reworded
§ 303.114, without changing the
substantive meaning. Changes: We have (a) added the
words ‘‘and his or her family’’ following
the phrase ‘‘each infant or toddler with
a disability’’ in § 303.114, (b) replaced
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60165 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
the word ‘‘include’’ with the word
‘‘ensure,’’ and (c) clarified that the IFSP
developed and implemented for a child
must meet the requirements in
§§ 303.340 through 303.346 and include
service coordination services.
Comprehensive Child Find System
(§ 303.115)
Comment: One commenter
recommended that language be included
in this section to explicitly require
States to seek out and serve all infants
and toddlers under the age of three,
regardless of when they were referred to
the lead agency for early intervention
services. The commenter expressed the
belief that many children referred to the
part C program after age two are not
served. Discussion: We do not believe that the
requested change is appropriate or
necessary because § 303.115 provides
that the State’s comprehensive child
find system must meet the requirements
in §§ 303.301 through 303.303. Section
303.302(b)(1) expressly requires a lead
agency to ensure that all infants and
toddlers with disabilities in the State
who are eligible for services under part
C of the Act are identified, located, and
evaluated. Additionally, the definition
of an infant or toddler with a disability
in § 303.21 expressly includes any
eligible child until that child reaches
the age of three. Thus, even if a child is referred to the
part C program after the age of two, the
lead agency, with parental consent,
must conduct an evaluation under
§ 303.321 or provide the parent with
notice (under § 303.421(b)) explaining
why an evaluation is not being
conducted (i.e., the child is not
suspected of having a disability).
Additionally, if the parent consents to
an evaluation, new § 303.310(b) requires
that the initial evaluation and the initial
assessment of the child and the initial
IFSP meeting must be conducted within
45 days of the child’s referral to the part
C program. (However, as provided
under § 303.209(b)(1)(iii), if a child is
referred less than 45 days prior to his or
her third birthday, the lead agency is
not required to evaluate the child;
instead, if the child may be eligible for
services under part B of the Act, the
lead agency, with parental consent, is
required to refer the child to the part B
program.) Section 303.342(e) requires that when
a child is determined eligible for part C
services and the parent consents to the
provision of part C services identified
on the child’s IFSP, the lead agency
must ensure that those early
intervention services are available and
provided to the child. Changes:
None.
Central Directory (§ 303.117) Comment: Some commenters objected
to proposed § 303.117, regarding the
central directory being published on the
lead agency’s Web site because many
families may not have access to a
computer. The commenters
recommended that we require lead
agencies to disseminate printed central
directories. Two of these commenters
requested that we specify the means,
other than through a Web site, by which
lead agencies may disseminate the
central directory. Another commenter
stated that a Web-only directory could
be easily updated and could provide
greater access to all parents. A few commenters requested that the
regulations require that material placed
on the Web site be accessible to and
usable by individuals with disabilities
and for non-English speaking families.
One commenter requested that the
Department require that the central
directory be made available in the main
languages spoken in the State. Discussion: Section 303.117 specifies
that each system’s central directory
must be accessible to the general public
through publication on the lead
agency’s Web site and ‘‘other
appropriate means.’’ This section does
not permit the lead agency to make the
central directory accessible and
available only through its Web site. The
lead agency must make the central
directory available through other
appropriate means. ‘‘Other appropriate means’’ may
include providing printed copies of the
central directory at locations, such as
libraries, and offices of key primary
referral sources. Given that needs vary
from State to State, each State is in the
best position to determine the
additional, appropriate means that the
lead agency will use to make its central
directory accessible. Thus, it would not
be constructive to include in § 303.117
an exhaustive list of the methods a lead
agency could use to make its central
directory accessible to the general
public. In response to commenters’ concerns
about the ability of individuals with
disabilities to access the central
directory, accessibility to the central
directory requires not only the ability of
the general public to obtain a copy of
the directory, but also the ability to
access the contents in the directory.
Lead agencies must comply with the
requirements in the ADA, which apply
to public entities (i.e., State and local
governments), and the requirements in
Section 504, which apply to recipients
of Federal financial assistance. Both of these statutes and their implementing
regulations generally require that
communications with individuals with
disabilities be as effective as
communications with individuals
without disabilities, and that
appropriate auxiliary aids and services
be made available where necessary to
afford a qualified individual with a
disability an equal opportunity to
participate in, and enjoy the benefits of,
any program or activity conducted by a
lead agency that receives a grant under
part C of the Act. Further clarification
in § 303.117 is not necessary because
the lead agency is already responsible in
§ 303.117 for ensuring that the central
directory is accessible and is also
subject to the requirements of these
other Federal laws.
Regarding access to the central
directory by non-English speaking
families, recipients of Federal funds,
including lead agencies, must take
reasonable steps to ensure that persons
of limited English proficiency (LEP)
have meaningful access to programs and
activities funded by the Federal
government under Title VI of the Civil
Rights Act of 1964 and implementing
regulations (42 U.S.C. 2000d et seq. and
34 CFR 100.1 et seq.). Because the lead
agency is responsible for ensuring that
the central directory is accessible in
§ 303.117 and such accessibility
includes providing LEP persons with
meaningful access under Title VI of the
Civil Rights Act of 1964, we decline to
make the changes requested by the
commenters. Changes: None.
Comment: One commenter requested
that the Department revise § 303.117 to
include more guidance on the actual
contents of the central directory. A few
commenters recommended that lead
agencies be required to update the
central directory at least annually. Discussion: Section 635(a)(7) of the
Act requires that the central directory
include information on early
intervention services, resources, and
experts available in the State and
research and demonstration projects
being conducted in the State. To the
extent consistent with this statutory
requirement, § 303.117 provides more
detail on the information that must be
included in the directory. Section
303.117 requires the central directory to
include information about: public and
private early intervention services,
resources, and experts available in the
State; professional and other groups that
provide assistance to infants and
toddlers with disabilities eligible under
part C of the Act and their families; and
research and demonstration projects
being conducted in the State relating to
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60166 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
infants and toddlers with disabilities.
Section 303.117 identifies the minimal
information that the directory must
include for the directory to be useful to
the general public. Nothing in the Act
or these regulations prohibits a State
from including other relevant
information that it deems appropriate.
Section 303.117 requires that the
central directory contain accurate and
up-to-date information. To comply with
the requirement that the information be
accurate and up-to-date, States likely
may update their central directories
more often than annually. Thus,
including a requirement that the
directory be updated at least annually
might be interpreted as setting a lower
standard than the requirement in
§ 303.117 that States maintain an
accurate and up-to-date directory. Changes: None.
Comprehensive System of Personnel
Development (CSPD) (§ 303.118) Comment: Some commenters
requested that this section require a
State’s CSPD to include training that is
targeted to particular groups of service
providers or training on techniques and
services that address the specific needs
of particular groups of infants and
toddlers. For example, one commenter
requested that the CSPD provide
training specific to serving children who
are homeless and children who have
been exposed to, or have experienced,
violence or trauma. Another commenter
requested that training for occupational
therapists be explicitly included. Other
commenters requested that the
regulations require that all training
available under the CSPD be mandatory. Discussion: The requirements for a
CSPD in § 303.118 incorporate the
requirements in section 635(a)(8) of the
Act. With respect to the request that a
State’s CSPD specifically require
training that is targeted to address the
early intervention service needs of
infants and toddlers with disabilities
who are homeless or who have been
exposed to or experienced violence or
trauma, we do not believe that it is
appropriate for the Department to
require that a State’s CSPD mandate
particular types of training or training
targeted to specific populations. Each
State is in the best position to evaluate
the training needs of personnel
providing early intervention services in
that State and to design the CSPD to
meet those needs. Similarly, it is the
Department’s position that it is not
necessary to list in the regulations
occupational therapy or other specific
fields in which training must be
provided, particularly given that
§ 303.13(a)(7) requires that qualified personnel provide all early intervention
services, including occupational
therapy. Moreover, § 303.119(a), which
requires that a State’s system include
policies and procedures relating to the
establishment and maintenance of
qualification standards to ensure that
personnel are appropriately and
adequately prepared and trained, is
sufficiently broad to ensure that each
State will address, as appropriate, the
needs of its specific subpopulations and
identify any providers or personnel that
may need more specific training.
We disagree that the regulations
should require a State’s CSPD to
mandate all training, including the
training described in § 303.118(b). As
noted in the preceding paragraph, we
want to provide each State with
flexibility to create a CSPD with the
appropriate components to meet that
State’s unique training and personnel
development needs.
Changes: None.
Comment: One commenter stated that
lead agencies do not have authority over
higher education systems and
curriculum and recommended that
§ 303.118 be revised to only require that
the lead agency make efforts to work
with higher education systems and
other training providers, including
national associations, to ensure that
training programs have adequate space
and an updated curriculum to train the
necessary early intervention services
personnel.
Discussion: Section 303.118 does not
imply that lead agencies have authority
over institutions of higher education
(IHEs) and IHE curricula. Nothing in
§ 303.118 prescribes IHE curricula;
rather, § 303.118(a)(2) requires only that
a CSPD promote the preparation of EIS
providers who are fully and
appropriately qualified to provide early
intervention services under part C of the
Act. For this reason, we do not believe
that the requested change is necessary.
Changes: None.
Comment: Some commenters
suggested that the Department retain the
language from current
§ 303.360(b)(4)(iii), which requires the
CSPD to include training related to
assisting families in enhancing the
development of their children, and in
participating fully in the development
and implementation of IFSPs. The
commenters stated that, if such training
is included in the regulations, it should
be required and not optional. One
commenter recommended that this
section include training for parents
concerning their rights, identifying
functional outcomes, and IFSP
processes. Discussion:
The 2004 amendments of
the Act revised section 635(a)(8) of the
Act to mandate that each State’s CSPD
include three specific personnel training
components. In the NPRM, we added as
an optional training component in
§ 303.118(b)(3) the training of personnel
to support families in participating fully
in the development and implementation
of the child’s IFSP because it was
important to retain this component from
current § 303.360(b)(4)(iii). However, we
recognize that the Act identifies only
three mandatory components and
believe that States should have the
flexibility to identify appropriate
personnel training components of their
CSPD. In reviewing the introduction
and paragraph (a) of this section, we
have made additional edits for
clarification that are not substantive.
Changes: We have made technical
edits to the introductory paragraph and
paragraph (a)(1) of this section to clarify
the subject of the training in the CSPD
and to clarify that the items listed in
this paragraph are training
requirements.
Comment: None.
Discussion: In the Improving Head
Start for School Readiness Act of 2007
(Head Start Act, 42 U.S.C. 9801 et seq.),
Congress authorized the Governor of
each State to designate or establish a
State Advisory Council on Early
Childhood Education and Care for
children from birth to school entry
(referred to as the State Advisory
Council). The overall responsibility of
each State Advisory Council on Early
Childhood Education and Care is to lead
the development or enhancement of a
high-quality, comprehensive system of
early childhood development and care
that ensures statewide coordination and
collaboration among the wide range of
early childhood programs and services
in the State, including child care, Head
Start, the IDEA programs (including the
IDEA program under part C of the Act,
and the preschool program under
section 619 of part B of the Act), and
pre-kindergarten programs and services.
Under the Head Start Act, the State
Advisory Council is required to conduct
periodic statewide needs assessments
on the quality and availability of
programs and services for children from
birth to school entry, identify
opportunities for and barriers to
coordination and collaboration among
existing Federal and State-funded early
childhood programs, and develop
recommendations for a statewide
professional development system and
career ladder for early childhood
educators and high-quality State early
learning standards.
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Another activity of the State Advisory
Council under the Head Start Act is to
assess the capacity and effectiveness of
institutions of higher education in the
State to support the development of
early childhood educators. The
Department strongly encourages lead
agencies to assist the State Advisory
Council in strengthening State-level
coordination and collaboration among
the various sectors and settings of early
childhood programs in the State to
support professional development,
recruitment, and retention initiatives for
early childhood educators. Regarding
personnel standards, nothing would
prevent a State from adopting or
recommending more rigorous personnel
standards under part C than those
developed or recommended by the State
Advisory Council. Because this requirement regarding
State Advisory Councils on Early
Childhood Education and Care was
established after the proposed part C
regulations were published, in final
§ 303.118 we have added coordination
with these State Advisory Councils as
an authorized activity of the CSPD. This
change will not impose an additional
burden on the CSPD because it is an
optional duty under § 303.118(b) and
not a required duty under § 303.118(a). Changes: New § 303.118(b)(4) has
been added to allow the CSPD to
include training personnel who provide
services under this part, using standards
that are consistent with early learning
personnel development standards
funded under the State Advisory
Council on Early Childhood Education
and Care established under the Head
Start Act, if applicable.
Personnel Standards (§ 303.119)
Comment: Some commenters
disagreed with our proposal to remove
the provision in current § 303.361(a)(2),
which requires State education
personnel standards to meet the highest
requirement for a profession or
discipline. The commenters asserted
that the removal of this provision, while
perhaps deemed necessary to alleviate
an immediate personnel shortage crisis
and serve children who are currently
eligible, could undermine the quality of
early intervention programs. The
commenters expressed concern that not
requiring State education personnel
standards to meet the highest
requirement for a profession or
discipline will promote a two-tiered
system in which infants and toddlers
with disabilities served in natural
settings receive services provided by
personnel who are less qualified than
personnel providing services in other
settings, such as hospitals and private clinics. One commenter recommended
that the Department revise this section
to require lead agencies to ensure that
early intervention services providers
who deliver services in their discipline
or profession have not had certification
or licensure requirements waived on an
emergency, temporary, or provisional
basis.
Discussion: Section 303.119, which is
consistent with section 635(a)(9) of the
Act, does not contain the provision in
current § 303.361(a)(2), requiring State
EIS personnel standards to be based on
the highest State requirement for a
profession or discipline, because this
requirement was removed from section
635(a)(9) in the 2004 amendments to the
Act. Section 303.119(b) requires that all
qualification standards for EIS providers
under part C of the Act must meet State-
approved or State-recognized
certification, licensing, registration, or
other comparable requirements that
apply to the profession, discipline, or
area those personnel are providing early
intervention services. This requirement
applies equally to EIS providers
regardless of the setting in which they
provide part C services. Concerning the comment requesting
that the Department prohibit EIS
providers from providing services if
their certification or licensure
requirements are waived on an
emergency, temporary, or provisional
basis, nothing in the Act prohibits early
intervention service providers from
receiving a waiver or other type of
emergency credential to provide early
intervention services so long as the
provision of early intervention services
by such providers is consistent with
State law, regulation, or other policy
governing certification and licensure.
Under section 635(b) of the Act, a State
may adopt a policy that includes
making ongoing good-faith efforts to
recruit and hire appropriately and
adequately trained personnel to provide
early intervention services to infants
and toddlers, including, in a geographic
area of the State where there is a
shortage of such personnel, the most
qualified individuals available who are
making satisfactory progress toward
completing applicable course work
necessary to meet the standards
previously described. Changes: None.
Qualification Standards (§ 303.119(b)) Comment: One commenter
recommended that the Department
revise this section to require that
qualification standards be consistent
with professional scope of practice
provisions in State practice laws (i.e., State statutes that govern the practices
of specific professions).
Discussion: Section 303.119 requires
the State to establish and maintain
qualification standards that are
consistent with State-approved
professional standards. To maintain
State flexibility in updating State
qualification standards for part C
personnel, we will continue to require
that these standards be consistent with
the requirements of any State-approved
or State-recognized certification,
licensing, registration, or other
comparable requirements that apply to
the profession, discipline, or area that
personnel are providing early
intervention services. Changes: None.
Use of Paraprofessionals and Assistants
(§ 303.119(c)) Comment: Two commenters requested
that paraprofessionals and assistants be
required to meet the same State
licensure requirements as early
intervention service providers and that,
in the absence of such a policy, States
not be allowed to create ‘‘State-certified
paraprofessionals’’ or ‘‘State-certified’’
assistants who might encroach upon the
practice of certified early intervention
service providers. Two other
commenters requested that this section
clarify that States must comply with
State laws governing the practices of
specific professions and the appropriate
supervision of assistants as well as the
professional codes of ethics for the
different disciplines. One commenter
requested that this section be revised to
require the supervision of
paraprofessionals and assistants. A few
commenters recommended that
additional guidance be provided on the
definitions of the terms
‘‘paraprofessional,’’ ‘‘assistant,’’ and
‘‘supervision,’’ and that the regulations
require States to file with the
Department their regulations regarding
the scope of work performed by
paraprofessionals and assistants and the
supervision provided them. Discussion: Nothing in the Act
requires paraprofessionals and
assistants who assist in the provision of
early intervention services under part C
of the Act to meet State licensure
requirements for early intervention
service providers. However, consistent
with section 635(a)(9) of the Act,
§ 303.119(c) requires that
paraprofessionals and assistants who
assist in the provision of early
intervention services be appropriately
trained and supervised in accordance
with State law, regulation, or written
policy. We decline to require, in these
regulations, that paraprofessionals and
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assistants providing early intervention
services meet State licensure
requirements for EIS providers. We
believe that section 635(a)(9) of the Act
and § 303.119(c) are, in conjunction
with State law or policy, sufficiently
adequate to ensure that
paraprofessionals and assistants are
appropriately trained to assist in the
provision of early intervention services
made available under part C of the Act.
Neither the Act nor the regulations
prohibit a State from establishing a State
certification for paraprofessionals or
assistants who assist in the provision of
early intervention services, so long as
the requirements in § 303.119(c) are
met. The Department’s position is that
it would not be appropriate to preclude
a State from establishing a State
certification for paraprofessionals or
assistants who assist in the provision of
early intervention services because
specific certification and licensure
requirements are best left to a State to
determine. For the purposes of part C of the Act,
paraprofessionals and assistants are
individuals who assist in the provision
of early intervention services to infants
and toddlers with disabilities. We do
not believe it is necessary to define
these terms with greater specificity
because defining these terms is best left
to individual States based on their laws,
regulations, and written policies.
Further, it is most appropriate for States
to develop, if needed, a definition of
supervision. Concerning commenters’
requests that States file with the
Department their regulations on
paraprofessionals and assistants, section
634 of the Act requires States to assure
but not necessarily demonstrate their
compliance with the requirements in
section 635 of the Act, including section
635(a)(9). Therefore, we decline to
include definitions of these terms or a
filing requirement in these regulations. Changes: None.
Policy To Address Shortage of Personnel
(§ 303.119(d)) Comment: One commenter requested
that we include definitions of the terms
‘‘geographic area of the State,’’
‘‘geographic area where there is a
shortage,’’ ‘‘good-faith effort,’’ and
‘‘most qualified individuals available’’
in this section of the regulations. Discussion: Section 303.119(d)
provides that a State may adopt a policy
to address a shortage of personnel,
including efforts to recruit and hire
appropriately and adequately trained
personnel in a geographic area of the
State where there is a shortage of
personnel. The Department’s position is
that the phrases ‘‘geographic area of the State’’ and ‘‘geographic area where there
is a shortage,’’ as used, in this section
are best left to the State to define.
The Department’s position is that the
term ‘‘good faith effort’’ reflects the
common understanding of the term and
that States will make the reasonable
efforts necessary to enable the State to
recruit, hire, and retain appropriately
and adequately prepared and trained
personnel to provide early intervention
services to infants and toddlers with
disabilities. Thus, defining the term in
these regulations is not necessary. Finally, States can best determine
how to define the term ‘‘most qualified
individual available,’’ provided that the
State’s definition is consistent with the
provisions in § 303.119(a) and (b). This
approach gives States the flexibility they
need to determine which individuals
would be considered the ‘‘most
qualified individual available’’ in light
of unique State personnel needs. Changes: None.
Lead Agency Role in Supervision,
Monitoring, Funding, Interagency
Coordination, and Other
Responsibilities (§ 303.120) Comment: None.
Discussion: Based on further review of
§ 303.120, we have determined it is
appropriate to add references to EIS
providers in paragraphs (a)(2)(i) and (d)
of this section to clarify that a lead
agency’s responsibilities include
monitoring EIS providers as well as
agencies, institutions, and organizations
used by the State to carry out part C of
the Act and to ensure the timely
provision of early intervention services
to infants and toddlers with disabilities
and their families under part C of the
Act, pending reimbursement disputes
between public agencies and EIS
providers. We also have made
§ 303.120(a) internally consistent by
adding references where needed in
paragraphs (a)(1), (a)(2), and (a)(2)(i) to
make clear that the lead agency’s
monitoring responsibility extends to
‘‘agencies, institutions, organizations,
and EIS providers’’ that are receiving
financial assistance under part C of the
Act. Changes: We have added references to
EIS providers in § 303.120(a)(2)(i) and
(d) and appropriate references to
‘‘agencies, institutions, organizations,
and EIS providers’’ in paragraphs (a)(1),
(a)(2), and (a)(2)(i) of this section. Comment: One commenter
recommended that § 303.120(a)(2)(iv),
regarding the lead agency’s monitoring
of part C programs, include an
additional provision requiring States to
demonstrate ‘‘improvements that will
result in the delivery of quality services to reach compliance within one year of
identification.’’
Discussion: To ensure compliance
with the requirements in
§ 303.120(a)(2)(iv), States must
demonstrate improvement in the
implementation of their part C
programs; under §§ 303.700 through
303.702, each lead agency reports in its
APR on its improvement efforts under
the SPP. For example, by correcting
noncompliance in accordance with
§ 303.120(a)(2)(iv) a State might require
an EIS program or EIS provider to revise
any noncompliant policies, procedures,
and practices to be consistent with the
requirements of part C of the Act.
Additionally, in order to comply with
§ 303.120(a)(2)(iv), a State might
demonstrate improvement through, for
example, follow-up review of data, other
appropriate documentation, or through
interviews showing that the
noncompliant policies, procedures, and
practices were corrected and are
consistent with part C requirements.
Demonstration of improvement is an
integral part of § 303.120(a)(2)(iv) and
the State’s SPP/APR reporting; for this
reason, we decline to make the
requested change to § 303.120(a)(2)(iv).
Changes: None.
Comment: One commenter
recommended that the regulations
expressly require all EIS providers,
including those who do not receive
Federal part C funds from the lead
agency, to comply with the
requirements of the Act and these
regulations.
Discussion: The changes
recommended by the commenter are not
necessary because the Act and the
regulations already require, under
section 635(a)(10)(A) of the Act and
§ 303.120(a)(2), that the lead agency
monitor EIS providers as defined in
§ 303.12(a), regardless of whether such
EIS providers receive Federal part C
funds. Under the definition of EIS
provider in § 303.12(a), the EIS provider
must provide services in compliance
with part C of the Act, even if the EIS
provider does not receive Federal part C
funds. Therefore, no further changes are
required.
Changes: None.
Comment: A few commenters
disagreed with the one-year timeline to
correct noncompliance in
§ 303.120(a)(2)(iv) because, according to
these commenters, one year is too long
and not in the best interests of children
and families. Another commenter
recommended, instead, that we revise
§ 303.120(a)(2)(iv) to provide that a lead
agency have three years to demonstrate
correction of noncompliance.
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60169 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
One commenter recommended that
the Department require in
§ 303.120(a)(2)(iv) that lead agencies
report to the public the correction of
noncompliance in order to ensure that
parents and others are informed of the
correction of the noncompliance.
Discussion: Correcting
noncompliance as soon as possible but
not later than one year from
identification is a critical responsibility
of lead agencies and it is the
Department’s position that one year, and
not three years—as one commenter
suggested—is a reasonable timeframe for
an EIS provider to correct
noncompliance identified by the lead
agency and for the lead agency to verify
that the EIS provider is complying with
part C of the Act and its implementing
regulations.
The Department’s position is that a
shorter timeframe (e.g., 90 days from
identification) is not appropriate
because, in many cases, it would not
provide sufficient time to correct
noncompliance. For example, a lead
agency may determine that an EIS
provider is not in compliance with
requirements relating to making
decisions about the settings where
infants or toddlers with disabilities
receive early intervention services. To
take corrective action and verify the
correction in a case such as this would
likely take more than 90 days.
Therefore, we continue to believe that
an outside timeframe of one year will
provide lead agencies adequate time to
correct noncompliance identified
through monitoring while at the same
time ensuring that lead agencies timely
correct noncompliance.
Concerning commenters’ requests to
have lead agencies publicly report on
timely correction, subpart H of these
regulations identifies the specific
reporting requirements, including
timelines for reporting the correction of
noncompliance. Pursuant to
§ 303.702(b)(1)(i)(A), a lead agency is
required to report annually to the public
on the performance of each EIS program
on the targets in the SPP. Additionally,
every State is required to report on the
timely correction of noncompliance in
its APR. We decline to add a reporting
requirement to § 303.120(a)(2)(iv)
because the SPP/APR reporting
requirements regarding timely
correction of noncompliance are
adequate to ensure that the public and
the Department are informed about a
lead agency’s performance in correcting
noncompliance under § 303.120(a)(2).
Changes: None. Data Collection (§ 303.124)
Comment: One commenter opposed
the requirement in § 303.124(b) that
statewide data systems include a
description of the State’s sampling
methods, if sampling is used, for
reporting certain data required by the
Secretary. The commenter opposed this
requirement stating that sampling is not
supported by the Act. Discussion: We disagree with the
commenter that sampling is not
supported by the Act. Section 635(a)(14)
of the Act provides that the part C
statewide system include a system for
compiling data requested by the
Secretary under section 618 of the Act
that relates to part C of the Act, and
section 618(b)(2) of the Act specifically
states that the Secretary may permit
States and the Secretary of the Interior
to obtain data through sampling. Changes: None.
State Interagency Coordinating Council
(§ 303.125) Comment: One commenter
recommended that this section require
the establishment and maintenance of a
Federal interagency coordinating
council that also meets the requirements
of subpart G of these regulations. Discussion: The 2004 amendments to
the Act eliminated the authority for a
Federal interagency coordinating
council. Therefore, it would be
inconsistent with the Act and the intent
of Congress to require the establishment
and maintenance of a Federal
interagency coordinating council.
Changes: None.
Early Intervention Services in Natural
Environments (§ 303.126) Comment: A few commenters
requested that § 303.126, regarding the
provision of early intervention services
in the natural environment, include the
phrase ‘‘necessary to meet the unique
needs of the infant or toddler with a
disability and the family’’ when
referring to early intervention services. Discussion: Section 303.126 cross-
references § 303.344(d)(1), which
requires the child’s IFSP to include a
statement of the specific early
intervention services that are necessary
to meet the unique needs of the child
and the family to achieve the
measurable results or outcomes
identified in the IFSP. Section
303.344(d)(1) requires that early
intervention services be individualized
according to the child’s needs.
Therefore, it is not necessary to repeat
this requirement in § 303.126 in
connection with a statewide system that
includes policies and procedures to ensure that early intervention service
settings, to the maximum extent
appropriate, are provided in natural
environments.
Changes: None.
Comment: Many commenters stated
that the language in § 303.126(b) should
incorporate the language in section
635(a)(16) of the Act and requested that
the phrase ‘‘provided satisfactorily’’ be
replaced with the statutory phrase
‘‘achieved satisfactorily.’’ Discussion: Our use of the phrase
‘‘provided satisfactorily’’ in proposed
§ 303.126(b) was not intended to be a
substantive change from section
635(a)(16) of the Act or current practice.
We agree that the language in this
section should incorporate the language
in section 635(a)(16) of the Act. Changes: We have replaced the word
‘‘provided’’ in § 303.126(b) with the
word ‘‘achieved.’’ Comment: Several commenters
requested that § 303.126(b) be reworded
to clarify that parents are members of
the IFSP Team. Discussion: It is certainly true that,
under section 636(a)(3) of the Act and
§ 303.343(a)(1)(i) of these regulations,
parents are required members of a
child’s IFSP Team. However, we decline
to make the requested change because
§ 303.126(b), which is taken directly
from section 635(a)(16)(b) of the Act,
underscores the important role parents
have in deciding, together with the rest
of the members of the IFSP Team,
whether early intervention services will
be provided in settings other than the
child’s natural environment. Given that
other provisions in the regulations and
the Act make clear that the child’s
parents are required members of a
child’s IFSP Team, we do not believe it
is necessary to revise § 303.126(b) as
requested by the commenters. Changes: None.
Subpart C—State Application and
Assurances
General Comment: A few commenters
requested clarification about State
application requirements regarding how
States ensure the coordination of all
available resources and whether
interagency agreements, State laws or
regulations, or other methods were
required. Discussion: Each State must have
policies and procedures to ensure the
coordination of all available resources
in the State and to implement the payor
of last resort requirements in § 303.511.
Section 303.511(b) requires the State to
use one or more of the following
methods to implement part C’s payor of
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last resort requirements: State law or
regulation, interagency agreements, or
other appropriate written methods that
are approved by the Secretary.
We have added a new § 303.203(b)(2)
to clarify that the State must include in
its application, those methods used by
the State to implement the payor of last
resort requirements in § 303.511(b)(2)
and (b)(3), such as interagency
agreements and other appropriate
written methods. We require submission
of the methods referenced in
§ 303.511(b)(2) and (b)(3) in the State’s
application because these methods must
be approved by the Secretary before
implementation.
Changes: We added in new
§ 303.203(b)(2), regarding State
application requirements, that States
must submit ‘‘methods used by the State
to implement the requirements in
§ 303.511(b)(2) and (b)(3).’’
Comment: Some commenters
requested that the Department define
‘‘rigorous’’ as that term is used in the
phrase ‘‘rigorous definition of
developmental delay’’ in § 303.203(c).
One commenter expressed concern that
some State definitions of developmental
delay exclude infants and toddlers with
mild developmental delays from part C
eligibility. The commenter requested
that the Department clarify that a State’s
definition of developmental delay
should include mild developmental
delays.
Discussion: Within each State,
eligibility for part C services turns, in
part, on how the State defines
developmental delay. We interpret the
term ‘‘rigorous’’ in the phrase ‘‘rigorous
definition of developmental delay’’ in
§ 303.203(c) to mean that the State has
obtained public input on its definition
pursuant to § 303.208 (because the
definition constitutes a State policy),
and that its definition meets the
requirements in § 303.111(a) and (b).
Under § 303.111(a) and (b), the State’s
definition of developmental delay must
include: (1) A description of the
evaluation and assessment procedures
that will be used, consistent with
§ 303.321, to measure a child’s
development; and (2) a description of
the specific level of developmental
functioning or other comparable criteria
that constitute a developmental delay in
one or more of the developmental areas
identified in § 303.21(a)(1). Under
§ 303.208, the State must receive, and
respond to, public comments (including
comments from parents, EIS providers,
members of the Council and other
stakeholders) and conduct public
hearings on its definition of
developmental delay. Requiring public scrutiny of the
definition of developmental delay in
each State before the State adopts it
helps ensure that the definition
ultimately adopted by the State is
appropriate for that State. As noted in
the preamble discussion for § 303.111 of
subpart B of these regulations, a State is
not required to change its definition of
developmental delay in order for it to be
‘‘rigorous’’ provided that the definition
(regardless of the level of developmental
delay it covers) meets the requirements
in § 303.111(a) and (b) and met the
public participation requirements in
§ 303.208(b) since the Act was amended
in December 2004.
Given that section 635(a)(1) of the Act
provides each State with the flexibility
to define the term developmental delay,
as it is used in the State’s part C
program, the requirements in §§ 303.111
and 303.208 address the public’s desire
to ensure appropriate identification of
all infants and toddlers with disabilities
while providing each State the
continued flexibility to develop its
definition.
Changes: None.
Application’s Definition of At-Risk
Infants and Toddlers and Description of
Services (§ 303.204) Comment: One commenter supported
the requirements of this section and the
definition of the term at-risk infant or
toddler in § 303.5, but expressed
concern that serving at-risk infants and
toddlers would be an additional fiscal
burden on States.
Discussion: Serving at-risk infants or
toddlers is a State option under section
632(5)(B)(i) of the Act. Section 303.204
incorporates the requirement from
section 637(a)(4) of the Act that the
State describe the services to be
provided to at-risk infants and toddlers
through the part C statewide system
only if the State chooses to make ‘‘at-
risk infants and toddlers’’ eligible for
part C services in the State.
If a State elects to provide services to
at-risk infants and toddlers with
disabilities, the State must include the
definition of at-risk infants and toddlers
with disabilities in its application. A
State also must include in its
application a description of the early
intervention services to be provided to
at-risk infants and toddlers with
disabilities. Section 303.204 does not
require a State to provide services to at-
risk infants and toddlers; therefore,
these requirements and the financial
responsibilities associated with their
implementation are applicable only to
those States that choose to include ‘‘at-
risk infants and toddlers’’ in their definition of infant or toddler with a
disability under § 303.21(b).
Changes: None.
Comment: One commenter
recommended adding language in
§ 303.204(a) to encourage States to
examine closely the percentage of
premature infants who eventually
receive part C services and to use this
information to develop presumptive
eligibility criteria for at-risk infants and
toddlers to receive part C services. Discussion: The Act does not require
States to develop presumptive eligibility
criteria for at-risk infants and toddlers.
Sections 632(1), 632(5)(B)(i), and
637(a)(4) of the Act provide States with
the option to make at-risk infants and
toddlers eligible under part C of the Act,
and further to determine the part C
services that will be made available to
these children. This flexibility enables
each State to determine the eligibility
criteria for at-risk infants and toddlers
that are most appropriate in the State.
Examining data on premature infants
who eventually receive part C services
is one method a State could use to help
determine its eligibility criteria for at-
risk infants or toddlers, but there are
other methods that might be more
appropriate for other States. For
example, a State with a large number of
homeless infants and toddlers who have
high rates of developmental delay could
determine that such children should be
presumptively included in its definition
of at-risk infants and toddlers. Therefore, while a State could
certainly use data on premature infants
who eventually receive part C services
to inform its decision on the eligibility
criteria the State will use for at-risk
infants or toddlers, it is not appropriate
to require all States to do so. Changes: None.
Availability of Resources (§ 303.207) Comment: A few commenters
recommended replacing the word
‘‘resources’’ in § 303.207 with the term
‘‘services’’ because the term ‘‘resources’’
is not defined in the regulations or the
Act. Discussion: Section 303.207
incorporates the language (including the
term ‘‘resources’’) from section 637(a)(7)
of the Act. We decline to make the
requested change because we interpret
the term ‘‘resources,’’ as used in section
637(a)(7) of the Act and § 303.207, to be
broader than the term ‘‘services.’’ We
interpret ‘‘resources’’ to include not
only services but also funding,
personnel, and other materials. This
regulatory provision ensures that
resources—not just services—are
available in all geographic areas within
a State.
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60171 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
Changes: None.
Public Participation Policies and
Procedures (§ 303.208) Comment: Commenters requested that
the Department clarify when the public
participation requirements in § 303.208
apply. Some commenters requested that
the public participation requirements in
current § 303.110(a)(1), including a 30-
day comment period, be retained. A
number of commenters, including
parents of infants and toddlers with
disabilities, service providers, and
national disability rights organizations,
requested that the 30-day timeline for
notice of public hearings from current
§ 303.110(a)(3) be retained in § 303.208
to ensure meaningful public
participation at public hearings. These
commenters stated that the phrase
‘‘adequate notice’’ as used in proposed
§ 303.208(a)(1) is too vague. A few commenters opposed the
public participation requirements in
proposed § 303.208. One commenter
suggested that States use their State
Administrative Procedure Act (APA)
procedures instead of the procedures in
§ 303.208. Another commenter stated
that the State’s part C application
should not be subject to any public
participation requirements if the
application does not include policies or
procedures that affect direct services to
eligible infants and toddlers and their
families. Another commenter stated that
it would be too burdensome to require
public hearings when States amend
their policies and procedures. Finally, a few other commenters
recommended that the public
participation requirements expressly
identify foster parents and other
caregivers of infants and toddlers with
disabilities as stakeholders in the public
participation process. Discussion: The purpose of § 303.208
is to require each State to engage the
public in the development of its part C
application and to include, in its
application, information on its public
participation policies and procedures.
Section 303.208 is based, in part, on
section 637(a)(8) of the Act, which
requires each State’s application to
include a description of State policies
and procedures that ensure that, prior to
the adoption by the State of any other
policy or procedure necessary to meet
the requirements of part C of the Act,
there are public hearings, adequate
notice of the hearings, and an
opportunity for comment available to
the general public, including
individuals with disabilities and parents
of infants and toddlers with disabilities. We have restructured this section in
response to comments requesting clarification on the applicability of the
public participation requirements. As
restructured, paragraph (a) of this
section describes the applicability of the
public participation requirements to the
part C application itself. Section
303.208(b) describes the applicability of
the public participation requirements to
any new policy or procedure (including
any revision to an existing policy or
procedure) needed to comply with part
C of the Act and these regulations.
The requirements in § 303.208(a) that
States publish their part C applications
for 60 days and obtain public comments
during a 30-day period within that 60-
day period are consistent with the
requirements in current § 303.110(a)(1)
and section 441 of the General
Education Provisions Act (GEPA) (20
U.S.C. 1232d(b)(7)(B)). Under
§ 303.208(b), a State is required to
conduct public hearings when the State
is adopting or revising a policy or
procedure that is necessary to meet the
requirements of part C of the Act and
these regulations. This public hearing
requirement is intended to ensure that
States obtain, consistent with section
637(a)(8) and (b)(7) of the Act,
meaningful involvement from the public
(including underrepresented
populations) on the State’s policies and
procedures necessary to carry out the
requirements of part C of the Act prior
to implementing those policies and
procedures. Restructuring § 303.208 in this
manner addresses requests by
commenters to retain language from
current §§ 303.110(a)(1) and (a)(3).
Specifically, § 303.208(a) ensures that
the public has at least 30 days to
comment on a State’s part C application
before the State submits the application
to the Department. Additionally, we
agree with commenters that specifying a
minimum timeline for notice of public
hearings is preferable to simply
requiring that States provide ‘‘adequate
notice’’ of the hearings. It is the
Department’s position that 30 days prior
notice is the minimum notice needed to
ensure meaningful public participation
at public hearings. For this reason, in
§ 303.208(b)(2), we have added the
requirement from current § 303.110(a)
that States must provide notice of public
hearings at least 30 days prior to the
hearing. Regarding the comments
opposing the public participation
requirements in § 303.208, we
appreciate the concern about the
potential burden these requirements
place on States and lead agencies;
however, we strongly believe that the
benefits of public input outweigh any
potential burden because States have
flexibility under part C of the Act in many areas (e.g.,
developing their
definition of developmental delay,
serving at-risk infants and toddlers,
serving children beyond age three, using
part B or C due process procedures, and
system of payments), and the part C
policies and procedures in these and
other areas affect the fundamental rights
of infants and toddlers with disabilities
and their families. For this reason, it is
critical that the public have an
opportunity to weigh in on a State’s
policies and procedures, regardless of
whether they are new or revised or if
they involve direct part C services. In response to the comment
recommending that States be permitted
to use their State APA procedures to
ensure public participation in
connection with part C policies and
procedures, we decline to make any
changes to § 303.208. State APA
procedures vary from State to State, and
because the Department views
meaningful public participation as
critical for the part C program, it is
appropriate to establish in § 303.208 the
minimum steps States must take to
ensure meaningful public participation.
This will ensure that all States
participating in the part C program have
procedures that are consistent at least
with the requirements in § 303.208. Finally, when referring to the ‘‘general
public,’’ § 303.208 specifically lists
‘‘parents of infants and toddlers with
disabilities.’’ The definition of the term
parent, as used in these regulations,
includes foster parents, guardians
authorized to act as a child’s parent,
caregivers who are individuals acting in
the place of a biological parent with
whom the child is living, or surrogate
parents who have been appointed in
accordance with § 303.422. Therefore,
adding a reference to foster parents and
caregivers in this section is not
necessary. Changes: We have restructured
§ 303.208 to clarify the applicability of
the public participation requirements to
(a) the State’s part C application, and (b)
the State’s policies and procedures
(including any revision to an existing
policy or procedure) that are necessary
to comply with part C of the Act. Finally, as described in the discussion
of new § 303.101(c) earlier in this
preamble, we have moved the
requirement that States obtain approval
by the Secretary before implementing
any policy, procedure, method, or
budget information that is required in
§§ 303.200 through 303.212 to be
submitted as part of the States’
application. This requirement was
reflected in proposed § 303.208(b). We
did deviate from the language in
proposed § 303.208(b) by referring to
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policies, procedures, methods and
budget information required in
§§ 303.203, 303.204, 303.206, 303.207,
303.208, 303.209, and 303.211—rather
than those required in §§ 303.200
through 303.212, more generally.
Comment: A few commenters
recommended that the Department add
the word ‘‘shall’’ to the end of
§ 303.208(a)(2). Discussion: As noted elsewhere in
this discussion, we have restructured
§ 303.208 to clarify the entire section.
Given the revisions made to this section,
the commenters’ requested change is no
longer applicable. Changes: None.
Comment: One commenter expressed
concern that requiring States to seek
approval of the Secretary before
implementing policies, procedures, and
methods that are subject to the public
participation requirements in proposed
§ 303.208(b) (new § 303.101(c)) will
impede a State’s ability to respond in a
timely way to the local needs of eligible
children, families, and early
intervention programs. Discussion: Section 637(a) of the Act
requires each State that seeks part C
funding to submit an application to the
Secretary for approval. This section of
the Act also describes the information
that must be included in the State
application. Pursuant to section
637(a)(3)(A) of the Act, each State must
submit as part of its application
‘‘information demonstrating to the
Secretary’s satisfaction that the State has
in effect the statewide system required
by section 633’’ of the Act. Pursuant to section 637(a)(3)(A) of the
Act, we continue to require each State
to submit in its application the policies,
procedures, methods and budgetary and
other information required in §§ 303.201
through 303.212, though, for the sake of
clarity, we list the specific regulatory
sections (i.e., §§ 303.203, 303.204,
303.206, 303.207, 303.208, 303.209, and
303.211). This requirement ensures that
a State’s application includes, for
example, its policies regarding its
system of payments (i.e., financial
sources such as insurance or family fees
to pay for part C services) and its
definition of developmental delay.
These policies and procedures, among
others required in §§ 303.203, 303.204,
303.206, 303.207, 303.208, 303.209, and
303.211, are critical to understanding a
State’s implementation of part C of the
Act, such as the individuals whom the
State is serving and the funding sources
used to pay for the provision of early
intervention services. We have retained in § 303.101(c) the
long-standing Departmental policy of
requiring a State to obtain approval of policies and procedures that must be
submitted to the Secretary prior to
implementation. The purpose of the
Secretary’s review is to ensure that State
policies and procedures are consistent
with the Act, thereby ensuring that the
rights of infants and toddlers with
disabilities and their families are
protected and the responsibilities of
lead agencies, EIS providers, and
parents are explicitly defined.
Changes: None.
Transition to Preschool and Other
Programs (§ 303.209)
Application Requirements (§ 303.209(a)) Comment: None.
Discussion: Upon further review of
§ 303.209, we determined that it would
be helpful to clarify that the transition
requirements in § 303.209 apply to all
toddlers with disabilities before those
toddlers turn three years old, including
those toddlers with disabilities served
by States that elect to provide services
pursuant to § 303.211. To distinguish the transition
requirements in § 303.211(b)(6), which
apply to toddlers receiving services
under the part C extension option in
§ 303.211, who by definition are age
three or older, we have revised
§ 303.209(a) to state that the transition
policies and procedures it must describe
relate to the transition of infants and
toddlers with disabilities under the age
of three and their families. As further
discussed elsewhere in this Analysis of
Comments and Changes section, we
have made corresponding changes to
§ 303.211 to clarify that the transition
requirements in § 303.209 apply to all
infants and toddlers under the age of
three who are transitioning from the
part C program (as described in
§ 303.211(b)(6)(i)) and that the transition
requirements described in
§ 303.211(b)(6)(ii) apply to children age
three and older who are transitioning
from services provided pursuant to
§ 303.211. Changes: We have deleted in new
§ 303.209(a)(1) (proposed
§ 303.209(a)(1)(i)) the parenthetical
‘‘(including toddlers receiving services
under § 303.211).’’ We also have revised
§ 303.209(a)(1) to clarify that each State
must describe in its application, the
policies and procedures it will use to
ensure a smooth transition for infants
and toddlers with disabilities under the
age of three and their families from
receiving early intervention services to
(i) preschool or other appropriate
services (for toddlers with disabilities)
or (ii) exiting the program (for infants
and toddlers with disabilities). We have
addressed separately in new § 303.211(b)(6)(ii) the substance of
proposed § 303.209(b)(2)(i) and (b)(2)(ii)
regarding transition from services under
§ 303.211.
Comment: Some commenters opposed
§ 303.209(a)(3)(i)(B), which requires a
State whose lead agency is the SEA to
include in its application an intra-
agency agreement between the program
within the SEA that administers part C
of the Act and the program within the
SEA that administers section 619 of the
Act. These commenters stated that
requiring two programs within one SEA
to have an agreement with each other is
unnecessary and would create an undue
paperwork burden. A few other
commenters expressed concern that the
requirement would be particularly
burdensome for States with seamless
‘‘Birth to Five’’ programs. Discussion: Section 303.209(a)(3)(i)
requires all States, including those in
which the SEA is the lead agency, to
establish an interagency or an intra-
agency agreement between the early
intervention program under part C of
the Act and the preschool program
under section 619 of part B of the Act.
We included the requirement for intra-
agency agreements because, through the
Continuous Improvement Focused
Monitoring System (CIFMS) process and
State reporting under the SPP/APRs, the
Department has identified
noncompliance with transition
requirements under both part C of the
Act (e.g., noncompliance with section
637(a)(9) of the Act, regarding
notification of the LEA and conducting
transition conferences, and, with
sections 636(a)(3) and (d)(8) and
637(a)(9) of the Act, regarding the
transition steps and services in the
IFSP) and part B of the Act (e.g.,
noncompliance with section 612(a)(9) of
the Act, regarding development and
implementation of an IEP by a child’s
third birthday). Given this
noncompliance and the need for States
to have clearly defined transition
coordination policies and procedures
between the early intervention program
under part C of the Act and the
preschool program under part B of the
Act, requiring an intra-agency
agreement will be a useful tool to
enhance coordination and
communication between the part C and
part B preschool programs. Developing interagency or intra-
agency agreements should not be a
significant burden for States because
approximately two-thirds of lead
agencies already have interagency
agreements and the remaining third,
where the lead agency is also the SEA,
currently are required to have transition
policies and procedures that address the
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60173 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
transition of toddlers from early
intervention to preschool services under
parts B and C of the Act. For lead
agencies that are also SEAs, the
Department’s position is that the
benefits associated with requiring intra-
agency agreements pursuant to
§ 303.209(a)(3)(i)(B) outweigh the
minimal burden associated with this
requirement. An intra-agency agreement
serves the useful purpose of ensuring
that there is an appropriate level of
coordination and communication across
the early intervention and preschool
programs in a lead agency that is also an
SEA. The burden of developing this
agreement is minimal because the
requirement does not involve the
development of new transition policies
and procedures—these policies and
procedures are already required
pursuant to § 303.209(a). Moreover, the
Council often serves to advise the lead
agency when it develops these
agreements; in fact, the Council is
specifically required under section
641(e)(1)(C) of the Act to advise and
assist the SEA (which in this case would
be the lead agency) regarding the
transition of toddlers with disabilities to
preschool and other appropriate
services.
There are only a few States that have
adopted ‘‘Birth to Five’’ programs (i.e.,
programs in which the SEA and LEA
provide both preschool services under
part B of the Act and early intervention
services under part C of the Act to
children from ages birth to five). In
these States, the same State and local
agencies administer part C of the Act
and section 619 of the Act. Therefore,
States with these programs must include
one or more intra-agency agreements to
satisfy the requirement in
§ 303.209(a)(3)(i)(B). As stated in the
preceding two paragraphs, the benefits
associated with intra-agency agreements
pursuant to § 303.209(a)(3)(i)(B)
outweigh the minimal burden
associated with the requirement. Changes: None.
Comment: None.
Discussion: Based on further review of
§ 303.209(a)(3)(ii), we have determined
that additional clarification is needed
with regard to the required transition-
related content of the interagency and
intra-agency agreements under
§ 303.209(a)(3)(i). To clarify that these
agreements must address how the lead
agency and the SEA will meet the
confidentiality requirements in
§ 303.401(d) and (e), we have added
specific references to those provisions
in § 303.209(a)(3)(ii). Additionally, we
have specified that the agreements
required pursuant to § 303.209(a)(3)(i)
must address how the agency and the SEA will meet, for all children
transitioning from part C services to part
B services, the requirements in 34 CFR
300.101(b)—that is, how the lead agency
and the SEA will ensure that FAPE is
made available to each eligible child
residing in the State no later than the
child’s third birthday.
Changes: We have added the words
‘‘including any policies adopted by the
lead agency under § 303.401(d) and (e)’’
as well as a reference to 34 CFR
300.101(b) to § 303.209(a)(3)(ii).
Notification to the SEA and Appropriate
LEA (§ 303.209(b))
Comment: None.
Discussion: Upon further
consideration of this section of the
regulations, we have determined that
the requirement in proposed
§ 303.209(b)(1) that each family member
of a toddler with a disability receiving
part C services be included in the
development of the transition plan is
better addressed under the transition
plan requirements in § 303.209(d) and
not with the SEA and LEA notification
requirements in § 303.209(b). This
change does not reflect a substantive
change to the regulations. Changes: We moved the text from
proposed § 303.209(b)(1) to new
§ 303.209(d)(1)(ii). Comment: Some commenters
supported the requirement, reflected in
new § 303.209(b)(1)(i) (proposed
§ 303.209(b)(2)), that the lead agency
notify the LEA, at least nine months
before the third birthday of a toddler
who resides in the area served by the
LEA, that the toddler will reach the age
of eligibility for preschool services
under part B of the Act. Other
commenters opposed this nine-month
timeline stating that it would be an
undue burden and inconsistent with the
Act. Several of these commenters
recommended alternative timelines ( i.e.,
timelines ranging from 10 days to 3 or
6 months before a child’s third
birthday). One commenter
recommended aligning the timeline
requirement for LEA notification in new
§ 303.209(b)(1)(i) (proposed
§ 303.209(b)(2)(i)) with the 90-day
timeline for transition plans in
§ 303.209(d)(2). Discussion: Establishing a timeline
within which a lead agency must notify
the appropriate LEA that a child is
about to transition from part C services
and may be eligible for services under
part B of the Act is challenging. The
timeline must allow sufficient time for
both the lead agency to fulfill its
transition responsibilities under
sections 636(a)(3) and (d)(8) and
637(a)(9) of the Act and the SEA and LEA to meet their respective child find
and early childhood transition
responsibilities under sections 612(a)(3),
612(a)(9), 612(a)(10)(A)(ii), and
614(d)(2)(B) of the Act and 34 CFR
300.124.
For the reasons outlined in the
following paragraphs, we agree with the
commenter who recommended aligning
the LEA notification requirement with
the 90-day timeline for transition plans
in § 303.209(d)(2). We have revised new
§ 303.209(b)(1)(i) (proposed
§ 303.209(b)(2)(i)) to require that LEA
notification occur no fewer than 90 days
prior to the toddler with a disability’s
third birthday. This ‘‘not fewer than 90
days’’ timeline for LEA notification
aligns with the date by which: (1) A
transition conference must be
conducted for a toddler with a disability
who may be eligible for services under
part B of the Act (as required in section
637(a)(9)(A)(ii)(II) of the Act and
§ 303.209(c)(1)); and (2) a transition plan
must be in place for all toddlers with
disabilities (as required in
§ 303.209(d)(2)). We also are making this change in
order to provide SEAs and LEAs with
enough time to carry out their
responsibilities in implementing part B
of the Act. These responsibilities
include, under section 612(a)(9) of the
Act and 34 CFR 300.124(c) of the part
B regulations, participation by a
representative from the LEA where the
toddler with a disability resides in the
transition conference that the lead
agency is required to conduct under
section 637(a)(9)(A)(ii)(II) of the Act and
§ 303.209(c)(1). In addition, when the
LEA receives notice from the lead
agency or an EIS provider that a specific
toddler with a disability who has been
receiving services under part C of the
Act is potentially eligible for services
under part B of the Act, the LEA must
treat this as a referral and provide
parents with the procedural safeguards
notice under 34 CFR 300.504(a)(1) and
determine if an evaluation for eligibility
must be conducted under part B of the
Act. Further, if the parent consents to the
initial evaluation under part B of the
Act, the LEA must conduct the
evaluation within 60 days of receiving
parental consent or pursuant to a State-
established timeline as required in
section 614(a)(1)(C) of the Act and 34
CFR 300.301(c)(1) of the part B
regulations. If the child is determined
eligible under part B of the Act, the LEA
must conduct, pursuant to 34 CFR
300.323(c)(1) of the part B regulations,
a meeting to develop an IEP for the
child with a disability within 30 days of
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60174 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
the eligibility determination. For
toddlers with disabilities who are
referred from the part C program to the
part B program, this 60-day evaluation
timeline (reflected in 34 CFR
300.301(c)(1) of the part B regulations)
and the 30-day IEP meeting timeline
(reflected in 34 CFR 300.323(c)(1) of the
part B regulations) are subject to the
requirement in section 612(a)(9) and 34
CFR 300.101(b) and 300.124(b) of the
part B regulations that the SEA and LEA
ensure that, for a child who transitions
from services under part C of the Act to
part B of the Act, an IEP is developed
and implemented for the child by the
time the child reaches age three. Thus,
the 90-day period prior to the toddler’s
third birthday is the minimal time
period necessary for an LEA to meet its
responsibilities to ensure that an IEP is
developed and implemented by the
child’s third birthday.
We recognize that some States may
have a State-established timeline for
conducting an evaluation under part B
of the Act that is different than the 60-
day timeline in 34 CFR 300.301(c)(1).
Even if a State adopts a longer part B
evaluation timeline under 34 CFR
300.301(c)(1) of the part B regulations,
each SEA and LEA must ensure that an
IEP is developed and implemented for
a toddler with a disability transitioning
from part C to part B of the Act by the
time the toddler reaches age three. This
requirement is reflected in section
612(a)(9) of the Act and 34 CFR
300.101(b) and 300.124(b) of the part B
regulations. Thus, it is the Department’s
position that the 90-day notification
timeline provides the minimum amount
of time necessary for an SEA and LEA
to meet their respective early childhood
transition responsibilities under part B
of the Act.
Finally, in reviewing § 303.209, we
have determined that it is not
appropriate to refer to ‘‘other services’’
under part B of the Act because this
section addresses only the transition
that must occur before an infant or
toddler with a disability turns three
years old. References to other services,
such as elementary school, are now
more appropriately addressed in
§ 303.211(b)(6) regarding the transition
requirements of children who are three
and older and receiving services under
§ 303.211.
Changes: We have revised new
§ 303.209(b)(1)(i) (proposed
§ 303.209(b)(2)(i)) to require the lead
agency to notify the SEA and the LEA
for the area in which the toddler resides
‘‘not fewer than 90 days’’ before the
third birthday of the toddler with a
disability if that toddler may be eligible for preschool services under part B of
the Act.
Comment: A few commenters
recommended that we clarify that the
lead agency must notify the LEA under
§ 303.209(b) only for those children who
are potentially eligible for services
under part B of the Act. Discussion: We agree and have
revised § 303.209(b) to clarify that the
LEA notification requirement applies
only to toddlers with disabilities who
may be eligible for preschool services
under part B of the Act and not to all
toddlers with disabilities. The part C lead agency establishes the
State’s policy regarding which children
may be eligible for preschool services
under part B of the Act. In establishing
this policy, the lead agency should
review carefully, ideally in
collaboration with the SEA, the
eligibility definitions under parts B and
C of the Act, including the State’s
definitions of developmental delay
under both parts B and C of the Act. The determination of whether a
toddler with a disability is ‘‘potentially
eligible’’ for services under part B of the
Act is critical under both parts C and B
of the Act. It is the first step in ensuring
a smooth transition for that toddler and
family to services under part B of the
Act. When the LEA receives notice from
the lead agency or an EIS provider that
a specific toddler with a disability who
has been receiving services under part C
of the Act may be eligible for services
under part B of the Act, the LEA must
treat this as a referral and provide
parents with the procedural safeguards
notice under 34 CFR 300.504(a)(1) and
determine if an evaluation for eligibility
must be conducted under part B of the
Act. There are several reasons for limiting
LEA notification to children who may
be eligible for preschool services under
part B of the Act. First, the limitation is
consistent with section
637(a)(9)(A)(ii)(II) of the Act, which
requires that, with the approval of the
family of the child, the lead agency
convene a transition conference among
the lead agency, the family, and the LEA
representative only for those children
potentially eligible for preschool
services under part B of the Act. Second, limiting LEA notification to
cover only toddlers potentially eligible
for preschool services under part B of
the Act is critical to ensuring that the
SEA and LEA where the toddler resides
have adequate time to meet their
respective child find and early
childhood transition responsibilities
under sections 612(a)(3), 612(a)(9),
612(a)(10)(A)(ii), and 614(d)(2)(B) of
part B of the Act, and in particular to develop and implement an IEP by the
child’s third birthday as required by
section 612(a)(9) of the Act and 34 CFR
300.124(b). These provisions require
that children who participate in the
early intervention programs under part
C of the Act and children who will
participate in the preschool services
under part B of the Act experience a
smooth and effective transition to those
preschool programs in a manner
consistent with section 637(a)(9) of the
Act.
Third, LEA notification should not be
required for toddlers with disabilities
who are not potentially eligible for part
B services under the Act given that the
lead agency has other responsibilities
for these children, which we believe are
sufficient to meet their transition needs.
For these children, the lead agency
must: (1) Ensure that a transition plan
is developed pursuant to section
637(a)(9)(C) of the Act and § 303.209(d);
and (2) make reasonable efforts,
pursuant to section 637(a)(9)(A)(ii)(III)
of the Act and § 303.209(c)(2), to
convene a transition conference with
the family of the toddler and providers
of other appropriate services. The
transition plan for toddlers with
disabilities who are not potentially
eligible for part B services under the Act
must identify the appropriate steps for
the toddler with disabilities and his or
her family to exit from the part C
program, include services, such as Head
Start, that the IFSP team identifies as
needed by that toddler and his or her
family. Finally, we are clarifying that the LEA
notification requirement in
§ 303.209(b)(1)(i) only applies to
toddlers who may be eligible for part B
services because, if the requirement
applied to all toddlers who are nearing
age three, it would result in the
unnecessary disclosure of personally
identifiable information and place an
undue burden on lead agencies, without
any significant benefit. Ordinarily, to
meet the LEA notification requirement,
the lead agency must inform the LEA
where the child resides and provide the
LEA with the information referenced in
§ 303.401(d)(1) (i.e., the child’s name,
date of birth, and parent contact
information, including the parents’
names, addresses, and telephone
numbers), unless the State has adopted
an opt-out policy under § 303.401(e).
Requiring the lead agency to disclose
this personally identifiable information
for limited child find purposes to the
LEA or even the SEA for children who
are not potentially eligible for part B
would be unnecessary and burdensome. Changes: We have revised new
§ 303.209(b) (proposed § 303.209(b)(2)(i)
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and (b)(2)(ii)) to clarify that a lead
agency must notify the LEA under
§ 303.209(b) only for those children who
may be eligible for services under part
B of the Act.
Comment: Some commenters
recommended that the LEA notification
requirement in new § 303.209(b)(1)(i)
(proposed § 303.209(b)(2)) apply to both
the SEA and the LEA where the child
resides. Discussion: We have revised the LEA
notification requirement in
§ 303.209(b)(1)(i) to require that the lead
agency notify the SEA in addition to the
LEA where the child resides. This
change is intended to help lead agencies
and SEAs coordinate to ensure a smooth
and effective early childhood transition
pursuant to sections 612(a)(9) and
637(a)(9)(A) of the Act. Moreover, this
change will assist SEAs in carrying out
their responsibilities under part B of the
Act. For example, under section
612(a)(9) of the Act and 34 CFR
300.101(b) and 300.124(b) of the part B
regulations, an SEA must ensure that
FAPE is made available to an eligible
child with a disability no later than that
child’s third birthday for all toddlers
with disabilities who were referred for
part B services by the lead agency and
are eligible for services under part B of
the Act. Also, an SEA must report
annually in its SPP/APR on the percent
of children referred by the part C
program prior to the age of three who
are found eligible for part B services and
have an IEP developed and
implemented by the third birthday.
Requiring lead agencies to notify SEAs
when a child may be eligible for part C
services will help SEAs fulfill this
obligation. Providing this information to
SEAs will add very little burden to lead
agencies because they are already
required to provide the information to
LEAs. Changes: We have revised new
§ 303.209(b)(1)(i) through (b)(1)(iii)
(proposed § 303.209(b)(1) and (b)(2)) to
specify that the lead agency must notify
the SEA and the LEA where the child
resides in the case of a toddler who may
be eligible for preschool services under
part B of the Act. Comment: A few commenters
requested clarification in § 303.209 of
the lead agency’s transition
responsibilities when a child is referred
‘‘late’’ to the part C program (i.e., less
than 45 or 90 days prior to the child’s
third birthday). A few commenters
expressed concern that the reference to
a child’s ‘‘third birthday’’ in the LEA
notification provision in proposed
§ 303.209(b)(2)(i) may interfere with
State-established transition policies and
may disrupt many existing options that have been carefully crafted by States
and local communities to ensure
seamless transitions from the part C
program to the part B program.
Discussion: We agree that it is
important to clarify the transition
requirements that apply when a child is
referred to or determined eligible for the
part C program fewer than 90 days
before the child’s third birthday. Given
the 45-day timeline requirement in new
§ 303.310, we have added paragraphs
(b)(1)(i) and (b)(1)(ii) to new § 303.209 to
address the commenters’ concerns. Specifically, new § 303.209(b)(1)(ii)
clarifies that if a child is referred and
determined eligible for services under
part C of the Act between 90 and 45
days before the child’s third birthday,
LEA notification must occur as soon as
possible after the child is determined
eligible for early intervention services
under part C of the Act. For these
children, although the lead agency is
not able to conduct a transition
conference and develop a transition
plan within the timelines in
§ 303.209(b)(1)(i) and (d)(2), we
encourage States to discuss transition at
the child’s initial IFSP meeting. New § 303.209(b)(1)(iii) clarifies that
if a child is referred to the lead agency
fewer than 45 days before that child’s
third birthday, the lead agency is not
required to conduct an evaluation,
assessment or an initial IFSP meeting.
We believe that the referral of a child
fewer than 45 days before a child’s third
birthday would not allow a lead agency
sufficient time to conduct the
evaluation, assessment and initial IFSP
meeting. Additionally, a lead agency
would not have sufficient time to
conduct a transition conference to
discuss steps and services. Thus, we
have clarified in new § 303.209(b)(1)(iii)
that, for a child who is referred to the
lead agency fewer than 45 days before
the child’s third birthday, if the lead
agency has received information in its
referral that the child may be eligible for
preschool services or other services
under part B of the Act, the lead agency,
with the parental consent required
under § 303.414, must refer the toddler
to the SEA and the LEA for the area in
which the toddler resides. Concerning commenters’ requests not
to use the child’s ‘‘third birthday’’ in
calculating timelines for LEA
notification, the third birthday is
significant under part C of the Act
because eligibility for services for the
toddler with a disability ends once that
toddler turns three, with two
exceptions. A lead agency may provide
services to a child who has turned three
years old if a State elects either to (a)
offer services under the option to make part C services available beyond age
three pursuant to § 303.211 and the
parent consents to services under that
section, or (b) provide services to a child
who is eligible under part B of the Act
from that child’s third birthday to the
beginning of the following school year
under section 638(3) of the Act and
§ 303.501(c)(1), provided that those
services constitute FAPE for that child.
In both circumstances, the child, upon
turning age three, must be eligible as a
child with a disability under section 619
of the Act. With the exception of these
two circumstances, part C services end
at the child’s third birthday; therefore,
the Department’s position is that the use
of the phrase ‘‘third birthday’’ with
regard to the LEA notification provision
is appropriate.
Changes: We have added new
§ 303.209(b)(1)(ii) to clarify that if the
lead agency determines, between 90 and
45 days prior to a child’s third birthday
that the child is eligible for early
intervention services under part C of the
Act, the lead agency must notify the
SEA and the LEA for the area in which
the toddler resides as soon as possible
after the eligibility determination, that
the toddler on his or her third birthday
will reach the age of eligibility for
services under part B of the Act, as
determined in accordance with State
law. Additionally, we have added
paragraph (b)(3) to § 303.209 to provide
that if a toddler is referred to the lead
agency fewer than 45 days before that
toddler’s third birthday, the lead agency
is not required to conduct an evaluation,
assessment or an initial IFSP meeting,
and if that toddler may be eligible for
preschool services or other services
under part B of the Act, the lead agency,
with parental consent required under
§ 303.414, must refer the toddler to the
SEA and the LEA for the area in which
the toddler resides.
Conference To Discuss Services
(§ 303.209(c))
Comment: A few commenters
recommended clarifying the required
attendees, timelines, and procedures for
the transition conference required in
§ 303.209(c). One commenter asked why
a child’s service coordinator is not
included in the list of required
attendees for the transition conference.
Other commenters requested that the
regulations specifically require an LEA
or SEA representative to participate in
the transition conference; these
commenters argued that this
requirement would make the part C
regulations consistent with 34 CFR
300.124(c) of the part B regulations. Discussion: We agree that it would be
helpful to clarify the required attendees
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60176 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
for a transition conference. For this
reason, we have added a new paragraph
(e) to § 303.209, which references
§ 303.343(a) and the required members
of the IFSP Team, to ensure that the
attendees required for periodic IFSP
review meetings under § 303.343(b),
including the service coordinator, also
are required to attend the transition
conference required under § 303.209(c)
and the meeting to develop the
transition plan pursuant to § 303.209(d).
It is the Department’s position that
requiring participation by an LEA
representative under this part is not
appropriate but we note that, as part of
its responsibilities under section
637(a)(9)(A)(ii)(II) of the Act and
§ 303.209(c)(1) of these regulations, the
lead agency must invite the LEA
representative to the transition
conference. Under 34 CFR 300.124(c) of
the part B regulations, each LEA must
participate in the transition conference
arranged by the lead agency under
section 637(a)(9)(A)(ii)(II) of the Act and
§ 303.209(c). Thus, the requirements
under parts B and C of the Act provide
adequately for the participation of the
LEA in the transition conference. Changes: We have added a new
§ 303.209(e) to require that the
transition conference conducted under
paragraph (c) of this section or the
meeting to develop the transition plan
under paragraph (d) of this section
(which conference and meeting may be
combined into one meeting) must meet
the IFSP meeting and participant
requirements in §§ 303.342(d) and (e)
and 303.343(a).
Program Options and Transition Plan
(§ 303.209(d))
Comment: One commenter
recommended that the regulations
clarify that a child transitioning from
part C services to part B services must
not have a gap in services during the
summer months. Discussion: Once a toddler with a
disability who received services under
part C of the Act turns three and is
eligible for part B preschool services
under section 619 of the Act, that
toddler may receive services that are
provided as either: (1) Part C services by
the lead agency under § 303.211 (if the
State has elected to offer early
intervention services to children after
age three, and the toddler’s parent
consents to receipt of services under
this option), or (2) services that
constitute FAPE either under section
619 of the Act (if the IEP Team
determines such services are needed) or
under section 638(3) of the Act (if the
lead agency elects to offer such
services). A State may provide services under sections 619, 635(c) or 638(3) of
the Act regardless of whether the child
turns age three during the summer
months. However, if the child with a
disability receives services under
section 619 of the Act, any summer
services (i.e.,
extended school year
(ESY) services pursuant to 34 CFR
300.106 of the part B regulations) must
be provided, through an appropriate
IEP, if the child’s IEP Team determines
that those ESY services are necessary for
FAPE to be provided to that child. Changes: None.
Comment: One commenter expressed
concern that limiting transition
planning to no more than nine months
prior to the child’s third birthday does
not offer enough time to ensure a
seamless transition for all children. The
commenter recommended that the
standard ‘‘not fewer than 90 days’’ be
adopted if a timeline must be
established at all. Discussion: Section 303.209(d)
requires that a transition plan be
established in a child’s IFSP not fewer
than 90 days (and at the discretion of all
parties, not more than 9 months) before
a toddler’s third birthday. The ‘‘not
fewer than 90 days’’ component of this
requirement aligns the timeline for
transition planning with the timeline for
the SEA and LEA notification
requirements in § 303.209(b) and with
the timeline for the transition
conference for toddlers with disabilities
potentially eligible for part B services in
§ 303.209(c), pursuant to section
637(a)(9)(A)(ii)(II) of the Act. The outer limit of this timeline (i.e.,
‘‘not more than 9 months’’ before the
toddler’s third birthday) is intended to
protect toddlers, whose needs change
frequently at this age. The Department’s
position is that if transition planning
occurs more than nine months prior to
a toddler’s third birthday, this planning
may not accurately reflect the needs of
the child at the time of transition. For
this reason, the regulations only allow
the parties to establish a transition plan
for a child not earlier than nine months
prior to the child’s third birthday. Changes: None.
Comment: One commenter
recommended deleting ‘‘as appropriate’’
from § 303.209(d)(3), which requires,
consistent with § 303.344(h), that the
transition plan in the IFSP include, as
appropriate, steps for the toddler with a
disability and his or her family to exit
from the program. The commenter
stated that IFSP Teams should not have
the discretion to determine which
elements of a transition plan are
appropriate. Discussion: The phrase ‘‘as
appropriate’’ is included in section 637(a)(9)(C) of the Act, the statutory
authority for § 303.209(d)(3). Section
303.209(d)(3)(i) requires the transition
plan to include certain steps for the
toddler with a disability and his or her
family to exit from the part C program.
Section 636(a)(3) of the Act, regarding
IFSP content requirements, was
modified in 2004 to require that the
IFSP identify the appropriate transition
services for an infant or toddler. Section
303.209(d)(3) clarifies that the
requirements in that section must be
read in conjunction with § 303.344(h),
which requires the IFSP to include steps
to support the transition to one of the
following: Preschool services under part
B of the Act; elementary school or
preschool services for children
participating under a State’s option in
§ 303.211 to provide early intervention
services to children ages three and
older; early education, Head Start, and
Early Head Start or child care programs;
or other appropriate services. The
transition steps appropriate for a toddler
with a disability will differ depending
upon which program listed in
§ 303.344(h) the IFSP Team selects. The
transition plan is part of the IFSP and
must meet the content requirements in
§ 303.344. The IFSP Team must identify
in the IFSP appropriate steps for the
toddler and his or her family to exit the
program and any transition services.
Therefore, the phrase ‘‘as appropriate’’
gives the IFSP Team the flexibility to
make an individualized determination
as to what (not whether) transition steps
and services are appropriate for each
toddler with a disability.
Changes: None.
Comment: None.
Discussion: Based on further review of
§ 303.209(d)(2), we have determined
that it is appropriate to clarify that a
transition plan referred to in this section
is actually a part of an IFSP and not a
separate document. Consistent with
section 636(a) of the Act, the IFSP must
include a description of the appropriate
transition services for the infant or
toddler. Changes: We have added the phrase
‘‘in the IFSP’’ following the words
‘‘transition plan’’ in § 303.209(d)(2). We
also have added section 636(a)(3) of the
Act (20 U.S.C. 1436(a)(3)) to the
authority citation for this section. Comment: A few commenters
requested that the term ‘‘transition
services,’’ as used in § 303.209(d)(3)(ii),
be defined in the regulations. Discussion: Transition services are
those services that assist a toddler with
a disability and his or her family to
experience a smooth and effective
transition from an early intervention
program under part C of the Act to the
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60177 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
child’s next program or other
appropriate services, including services
that may be identified for a child who
is no longer eligible to receive part C or
part B services. The IFSP Team, which
includes the parent, determines the
appropriate transition services for each
toddler exiting the part C program.
Given that transition services are based
on the unique needs of the child and the
family, States require flexibility to
provide appropriate and individualized
transition services for each child.
Therefore, it is the Department’s
position that to further define the term
transition services is not appropriate.
Changes: None.
Comment: Some commenters
requested that a rule of construction be
added to § 303.209 to indicate that part
C programs would not be held
responsible for ensuring that required
transition timelines are met if referral
for part C services occurs less than 45
days prior to the date that the transition
conference must occur. Discussion: It is the Department’s
position that adding a rule of
construction to the regulations is not
necessary because a State can use its
inter or intra-agency agreements, or
other methods, to clarify transition
procedures and develop a process for
unique circumstances, such as the
referral of a child less than 45 days prior
to the date that the transition conference
must occur. The lead agency may not be
able to meet the transition conference
and transition plan timelines in
§ 303.209(c)(1) and (d) if the lead agency
receives a referral for that child less
than 45 days prior to the date that the
transition conference must occur (i.e.,
more than 90 days but less than 135
days (that is, 45 days plus 90 days) prior
to the child’s third birthday). However,
we encourage States in these instances
to discuss transition at the initial IFSP
meeting for a toddler with a disability
who is referred within 135 days of that
toddler’s third birthday. Additionally, the lead agency remains
responsible under § 303.310 for meeting
the 45-day timeline for conducting the
initial evaluation, assessments and IFSP
meeting and, under §§ 303.342(e) and
303.344(f)(1), for implementing the IFSP
services that are consented to by the
parent as soon as possible. While we
recognize that the lead agency may not
be able to meet the transition conference
and transition plan timelines in
§ 303.209(c) and (d) for children referred
135 days prior to their third birthday,
pursuant to § 303.209(b)(1)(ii), the lead
agency must still refer the toddler with
a disability, as soon as possible, to the
SEA and the LEA where the toddler
resides if that toddler is potentially eligible for preschool services under
part B of the Act.
Changes: None.
Comment: One commenter requested
clarification as to whether the IFSP
meeting requirements, including
accessibility of meetings, apply to
transition conferences in § 303.209. Discussion: In response to this
comment, we have added new
§ 303.209(e) to clarify that transition
conferences conducted under
§ 303.209(c) must meet the accessibility
and parental consent requirements in
§ 303.342(d) and (e) and the meeting
participant requirements in § 303.343(a).
Additionally, because the meeting to
develop the transition plan under
§ 303.209(d) can, but may not, occur at
the time of the annual or periodic IFSP
review, we also have clarified that the
meeting to develop the transition plan
under § 303.209(d) must meet the
accessibility and parental consent
requirements in § 303.342(d) and (e) and
the meeting participant requirements in
§ 303.343(a). States may choose, but are not
required, to combine the transition
conference with the meeting to develop
the transition plan. It may make sense
in many States to combine the transition
conference and IFSP transition plan
meeting, particularly for children
potentially eligible for services under
part B of the Act, given that: (1) The
LEA representative must attend the
transition conference (under section
612(a)(9) of the Act and 34 CFR
300.124(c) of the part B regulations);
and (2) the SEA and LEA must ensure
that an IEP is developed and
implemented by age three for children
with disabilities transitioning from part
C to part B of the Act (under section
612(a)(9) of the Act and 34 CFR
300.101(b) and 300.124(b) of the part B
regulations). We do not require that the
transition conference and meeting to
develop the transition plan be combined
because transition practices vary both
between States and within States and it
may not be appropriate for children not
potentially eligible for services under
part B of the Act. Changes: We have added new
§ 303.209(e) to clarify that any
conference conducted under paragraph
(c) of this section or the meeting to
develop the transition plan under
paragraph (d) of this section must meet
the requirements in §§ 303.342(d) and
(e) and 303.343(a). We also have
included a parenthetical in this new
section confirming that this conference
and meeting may be combined into one
meeting. Comment: A few commenters sought
guidance on how the transition requirements in § 303.209 apply,
including how to implement the
transition timeline requirements in
§§ 303.209(c)(1) and 303.209(d)(2) for
children served under § 303.211.
Discussion: We have added new
§ 303.209(f) to clarify that the transition
requirements under § 303.209 apply to
all toddlers with disabilities before they
turn three years old and to identify the
separate, additional transition
requirements that apply to toddlers with
disabilities in a State that offers services
under § 303.211. Thus, new
§ 303.209(f)(1) sets forth the requirement
that the lead agency must ensure the
transition requirements in § 303.209
apply to all toddlers with disabilities
(including toddlers with disabilities in a
State that offers services under
§ 303.211) before they turn three years
old.
For toddlers with disabilities in a
State that offers services under
§ 303.211, we also have clarified in new
§ 303.209(f)(2) the additional
requirements that apply at the transition
conference. Under new § 303.209(f)(2),
at the transition conference, the parents
of a toddler with a disability must
receive: (1) An explanation, consistent
with § 303.211(b)(1)(ii), of the toddler’s
options to continue to receive early
intervention services under this part or
preschool services under section 619 of
the Act; and (2) the initial annual notice
referenced in § 303.211(b)(1). We have
added these requirements in
§ 303.209(f)(2) to ensure that the initial
annual notice required in
§ 303.211(b)(1) is provided at the
transition conference when the IFSP
Team, which includes the parent of a
toddler with a disability, is required to
consider transition options, steps and
services. The annual notice requirement
in § 303.209(f)(2) is not new as it is
required under § 303.211(b)(1).
Requiring the initial annual notice to be
provided at the transition conference is
critical because the annual notice must
contain an explanation of the
differences between services provided
under § 303.211 and preschool services
under section 619 of the Act.
In new § 303.209(f)(3), we clarify that
the transition requirements in new
§ 303.211(b)(6)(ii), which relate to
transition from services under § 303.211
to preschool, kindergarten or elementary
school, apply to children age three and
older when those children are receiving
services under § 303.211. We also
discuss these transition requirements
further in the discussion relating to new
§ 303.211(b)(6) later in this Analysis of
Comments and Changes section of the
preamble.
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60178 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
Changes: We removed from new
§ 303.209(a)(1) (proposed
§ 303.209(a)(1)(i)) references to children
receiving services under § 303.211. We
have added new paragraphs (f)(1), (f)(2),
and (f)(3) to § 303.209 to clarify the
applicability of transition requirements
under § 303.209. New § 303.209(f)(1)
provides that the transition
requirements in paragraphs (b)(1) and
(b)(2), (c)(1), and (d) of this section
apply to all toddlers with disabilities
receiving services under this part before
those toddlers turn age three. New
§ 303.209(f)(2) states that ‘‘In a State that
offers services under § 303.211, for
toddlers with disabilities identified in
paragraph (b)(1) of this section, the
parent must be provided at the
transition conference conducted under
paragraph (c)(1) of this section: (i) An
explanation, consistent with
§ 303.211(b)(1)(ii), of the toddler’s
options to continue to receive early
intervention services under this part or
preschool services under section 619 of
the Act and (ii) The initial annual notice
referenced in § 303.211(b)(1).’’ Finally,
in new § 303.209(f)(3), we clarify that
the transition requirements for children
with disabilities age three and older
receiving services under § 303.211 are
set forth in § 303.211(b)(6)(ii).
Coordination With Head Start and Early
Head Start, Early Education, and Child
Care Programs (§ 303.210)
Comment: One commenter stated that
§ 303.210 is redundant because Head
Start and Early Head Start are required
members of the State Interagency
Coordinating Council (Council) under
§ 303.601(a)(8).
Discussion: We do not agree that the
inclusion of Head Start and Early Head
Start in § 303.210 repeats the
requirement in § 303.601(a)(8), which
requires at least one member of the
Council to be from a Head Start or Early
Head Start agency or program in the
State. Section 303.210 implements
section 637(a)(10) of the Act, which
requires each State application to
contain a description of State efforts to
promote collaboration among Early
Head Start programs under section 645A
of the Head Start Act, early education
and child care programs, and services
under part C of the Act. This is different
from the requirement in section
641(b)(1)(H) of the Act, and
implemented through § 303.601(a)(8),
which specifies that at least one member
of the Council must be from a Head
Start or Early Head Start agency or
program in the State.
Changes: None.
Comment: None. Discussion:
As discussed under
§ 303.118, section 642B of the Head
Start Act of 2007 now requires the
Governor of each State to designate or
establish a council to serve as the State
Advisory Council on Early Childhood
Education and Care (referred to as State
Advisory Councils). 42 U.S.C.
9837b(b)(1)(A)(i). Section
642B(b)(1)(C)(viii) of the Head Start Act
states that the members of the State
Advisory Council shall include, to the
maximum extent possible a
representative of the State agency
responsible for programs under section
619 or part C of the IDEA. Because this
requirement regarding State Advisory
Councils was established after the
proposed part C regulations were
published, in final § 303.210 we have
added that the State lead agency must
participate as a representative on the
State Advisory Council, if applicable.
This provision mirrors the provision in
the Head Start Act and will increase
coordination among early childhood
programs in the State. Changes: Proposed § 303.210 has been
redesignated as § 303.210(a) and we
have added new § 303.210(b) to require
that the State lead agency participate as
a representative, under section
642B(b)(1)(C)(viii) of the Head Start Act,
on the State Advisory Council on Early
Childhood Education and Care
established under the Head Start Act, if
applicable.
State Option To Make Services Under
This Part Available to Children Ages
Three and Older (§ 303.211)
Comment: A significant number of
commenters opposed including a State
option to make services under this part
available to children ages three and
older. Several commenters reported that
States will not make part C services
available to children ages three and
older pursuant to this section. Most
commenters stated that States do not
have adequate funding to implement
this option. Another commenter
expressed concern that this option
creates an additional program with its
own regulations, but no additional
funding. Discussion: Section 303.211 reflects
the language from section 635(c) of the
Act, which provides States with the
option to make early intervention
services available to children beginning
at three years of age until the children
enter, or are eligible under State law to
enter, kindergarten or elementary
school. If a State elects to offer this
option, children who are eligible for
services under part B of the Act and
who previously received early
intervention services under part C of the Act would continue to receive early
intervention services if their parents
choose to continue the services under
this option. The Department has no
authority to eliminate this provision
because it is statutory.
Providing part C services to children
who (a) are three years of age and older,
(b) are eligible for services under section
619 of the Act, and (c) previously
received early intervention services is
an option each State can consider. If a
State chooses to offer part C services to
this group of children, it is ultimately
the parent’s decision as to whether his
or her eligible child, upon turning three
years of age, will continue to receive
early intervention services rather than
part B services. Nothing in § 303.211 or
in section 635(c) of the Act requires a
State to provide this option or parents
to elect to receive part C services for
their child if their State makes this
option available. Concerning the comments about
funding for this option, it is the
Congress that decides whether to
appropriate funds for this program. Changes: None.
Comment: A few commenters stated
that implementing the provisions in
§ 303.211 would be confusing for
parents and LEAs given that early
intervention services are an entitlement
while services under part B of the Act
are a mandate. These same commenters
stated that simply extending an
entitlement via flexibility provisions
could jeopardize services to children
with disabilities at a critical time in
their development. Discussion: The Department
recognizes the difference between parts
B and C of the Act; part B of the Act
authorizes a program that requires
States to provide FAPE, defined as
special education and related services
designed to meet the unique needs of a
child with a disability, and part C of the
Act authorizes States to offer early
intervention services that are designed
to meet the developmental needs of
infants and toddlers with disabilities at
no cost to parents, except where Federal
or State law provides for a system of
payments, including a schedule of
sliding fees. We do not agree with the
commenters that the implementation of
the provisions in § 303.211 would
jeopardize services to children with
disabilities. Section 303.211
incorporates the language from section
635(c) of the Act, regarding the
flexibility to serve children three years
of age until entrance, or eligibility for
entrance, into kindergarten or
elementary school. States that choose to
implement the option in § 303.211 to
provide part C services to children three
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60179 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
years of age and older must provide,
pursuant to § 303.211(b)(2), the parents
of children with disabilities who are
eligible for services under section 619 of
the Act and previously received early
intervention services with an annual
notice that includes the following: a
description of the rights of the parents
to elect to receive early intervention
services under part C of the Act or
preschool services under part B of the
Act; an explanation of the differences
between early intervention services
provided under part C of the Act and
preschool services provided under part
B of the Act, including the types of
services and the locations that the
services are provided; the procedural
safeguards that apply; and possible
costs, if any, to parents of infants or
toddlers with disabilities receiving early
intervention services. This annual
notice will help to ensure that parents
of a child eligible for services under
§ 303.211 understand that they have the
right to choose between early
intervention services under part C of the
Act and preschool services under part B
of the Act and that they are fully
informed of the differences between
these two options.
Moreover, with regard to the
commenter’s concern that the
provisions in § 303.211 could jeopardize
services to children with disabilities at
a critical time in their development,
§ 303.211(b)(3) requires that States
offering this option have a policy in
place that ensures that any child served
pursuant to § 303.211 has the right to
receive, at any time, FAPE under part B
of the Act instead of early intervention
services under part C of the Act. Changes: None.
Comment: One commenter
recommended that each State have the
flexibility to provide the § 303.211
option to a subset of eligible children
based on age range and consistent with
State-established policies and
procedures. Discussion: Section 303.211,
consistent with section 635(c) of the
Act, allows each State to develop and
implement a policy under which
parents of children who are receiving
early intervention services and who are
eligible to receive services under section
619 of the Act can choose for these
children to continue receiving early
intervention services under part C of the
Act. Section 635(c) of the Act expressly
identifies (and limits) the age range
through which these services may be
provided; that is, early intervention
services could be available to these
children until they enter, or are eligible
under State law to enter, kindergarten.
Section 303.211(a)(2) is specifically intended to provide flexibility to a State
that chooses to allow for the
continuation of early intervention
services pursuant to § 303.211 to
provide services under the option to one
of three subsets of eligible children
within this age range (i.e.,
eligible
children from age three until the
beginning of the school year following
the child’s third birthday, eligible
children from age three until the
beginning of the school year following
the child’s fourth birthday and eligible
children from age three until the
beginning of the school year following
the child’s fifth birthday). Changes: We have revised paragraph
(a)(2) of § 303.211 to clarify the subsets
of age ranges States can select to provide
services under the option in § 303.211.
We also have added new (a)(3) to
highlight the statutory requirement from
section 635(c)(1) of the Act that a State
may provide services under § 303.211
only until the child enters, or is eligible
under State law to enter, kindergarten or
elementary school in the State.
Requirements (§ 303.211(b))
Annual Notice Requirements
(§ 303.211(b)(1))
Comment: A few commenters
recommended that the Department
clarify what it means to give parents
adequate information concerning the
differences between the part C and part
B procedural safeguards as required in
§ 303.211(b)(1)(ii)(B). Discussion: We agree clarification is
needed regarding when, under
§ 303.211(b)(1), parents whose children
are receiving services under § 303.211
must be provided an annual notice of
procedural safeguards. As discussed in
the Analysis of Comments and Changes
section for new § 303.209(f)(2), we have
clarified that the first annual notice
must be provided at the transition
conference when the parent is presented
the initial option for the child to receive
services under § 303.211 or under
section 619 of the Act. Additionally, for consistency, we
have revised reference to children being
served under § 303.211 to children who
are eligible for services under section
619 of the Act and who previously
received early intervention services
because when the first annual notice is
provided, children generally would not
yet be served under § 303.211. Regarding what information must be
included in the annual notice, States
choosing to offer early intervention
services under § 303.211 must provide
parents of these children with
disabilities with an annual notice that
includes, among other things, an explanation of the differences between
early intervention services provided
under part C of the Act and preschool
services provided under part B of the
Act. Section 303.211(b)(1)(ii)(B) requires
the explanation to include a description
of the differences in procedural
safeguards that apply to parents who
decide to continue receiving early
intervention services under part C of the
Act compared with the procedural
safeguards that apply to parents who
decide their child should receive
preschool services under part B of the
Act. The notice required under
§ 303.211(b)(1) must identify procedural
safeguards that apply, which
identification requirement can be met
by including the content requirements
from § 303.421(b)(3) and 34 CFR
300.504(c) and an explanation of the
major differences between the
procedural safeguards available under
the separate programs.
Changes: We have deleted in
§ 303.211(b)(1) ‘‘served pursuant to this
section’’ and added the phrase ‘‘eligible
for services under section 619 of the Act
and who previously received early
intervention services under this part
will be’’ before ‘‘provided annual
notice.’’
Educational Component
(§ 303.211(b)(2))
Comment: One commenter
recommended including the words
‘‘social and health’’ in § 303.211(b)(2) to
reinforce that the part C program
promotes education, social, and health
therapies. Discussion: It is not necessary to
include the words ‘‘social and health’’
in § 303.211(b)(2) because the part C
requirements apply to children
receiving services under § 303.211 in
the same manner as they do to all other
children receiving services under part C
of the Act, which may require,
depending on an individual child’s
needs, providing health services and
social or emotional services under
§ 303.13. Changes: None.
FAPE (§ 303.211(b)(3)) Comment: One commenter expressed
concern regarding the potential loss of
FAPE for children age three and older
who continue to receive early
intervention services pursuant to
§ 303.211. One commenter
recommended amending § 303.211(b)(3)
to clarify that parents whose child is
receiving services under part C of the
Act past the age of three pursuant to
§ 303.211 have the right, at any time, to
opt out of these early intervention
services and, instead, to obtain FAPE,
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60180 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
which includes preschool services,
under part B of the Act.
Discussion: We agree with the
commenter that parents must retain the
right to opt out at any time after
choosing part C services past the age of
three. Therefore, we have added the
phrase ‘‘at any time’’ to § 303.211(b)(3)
to clarify that parents whose child is
receiving services under part C of the
Act past the age of three pursuant to
§ 303.211 retain the right, at any time,
to opt out of these early intervention
services pursuant to § 303.211 and,
instead, to obtain FAPE under part B of
the Act for their child. Changes: We have revised
§ 303.211(b)(3) to require that the part C
statewide system ensures that any child
served under § 303.211 has the right, at
any time, to receive FAPE under part B
of the Act instead of early intervention
services under part C of the Act.
Services During Eligibility
Determination (§ 303.211(b)(4))
Comment: Some commenters stated
that the language in proposed
§ 303.430(e)(3) relates not to pendency,
but to the requirement in section
635(c)(2)(D) of the Act and
§ 303.211(b)(4), that IFSP services
continue to be provided to a toddler
with a disability until a part B eligibility
determination is made for that child in
a State that elects to make part C
services available beyond age three
under § 303.211. A few commenters
suggested clarifying that this
requirement only applies in a State that
has opted to make early intervention
services available to children ages three
and older. Another commenter opposed the
requirement in § 303.211(b)(4) and
proposed § 303.430(e)(3) stating that it
could create disincentives for LEAs to
make timely part B eligibility
determinations, impede a child’s timely
access to FAPE, and require a lead
agency to provide part C services to a
child who is not eligible under part B
of the Act for a significant period
beyond the child’s third birthday. A few commenters indicated that
proposed § 303.430(e)(3) conflicts with
sections 607(a) and (b) and 615(j) of the
Act and the Third Circuit decision in
Pardini v. Allegheny Intermediate Unit,
420 F.3d 181 (3d Cir. 2005), cert.
denied, 126 S.Ct. 1646 (2006). One
commenter recommended referencing
part B eligibility as well as ineligibility
in proposed § 303.430(e)(3)(ii). Discussion: We agree with
commenters who noted that the
requirement in proposed § 303.430(e)(3)
applies only to States that elect to offer
services under § 303.211 and is not a pendency provision and, thus, we have
moved the substance of proposed
§ 303.430(e)(3) to § 303.211(b)(4). For
clarification, we have added that it is
the lead agency that must continue to
provide all early intervention services
identified in the toddler with a
disability’s IFSP under § 303.344 (and
consented to by the parent under
§ 303.342(e)) beyond age three until that
toddler’s initial eligibility under part B
of the Act is determined under 34 CFR
300.306.
Regarding commenters’ concerns
about delaying part B eligibility
determinations and potentially
requiring a lead agency to provide
services for an unlimited time period,
we have clarified that this provision
does not apply if the LEA has requested
parental consent for the initial
evaluation under 34 CFR 300.300(a) and
the parent has not provided that
consent. We disagree with commenters’
suggestion that this requirement in
§ 303.211(b)(4) creates disincentives for
LEAs to make a timely part B eligibility
determination for a toddler with a
disability who is not yet age three and
is transitioning from the part C program
at age three to either the part B
preschool program under section 619 of
the Act or to the part C extension option
under section 635(c) of the Act and
§ 303.211. In order for the toddler with
a disability to be eligible either for part
B preschool services or for services
under § 303.211, the child must be
determined to be eligible under section
619 of the Act and the LEA is required
to make this eligibility determination. Under § 303.209(c) and 34 CFR
300.124(c), a lead agency representative
and an LEA representative must attend
the transition conference under part C of
the Act for a child potentially eligible
for part B services (with approval of the
family) and this conference must occur
at least 90 days (and at the discretion of
all parties not more than 9 months)
prior to the child’s third birthday. It is
at this conference that the LEA and lead
agency must coordinate the
determination of eligibility of a child for
services under section 619 of the Act
and offering the parent any services
under the part C extension option under
§ 303.211. The parent must consent to an
evaluation to determine eligibility under
section 619 of the Act. Once a parent
consents to the initial evaluation under
part B of the Act, the LEA must conduct
the evaluation under 34 CFR 300.301(b)
of the part B regulations within 60 days
or a State-determined timeline.
Additionally, under section 612(a)(9) of
the Act and 34 CFR 300.124(b) of the part B regulations, the SEA and LEA
must ensure that an IEP has been
developed and is being implemented by
age three for a toddler with a disability
who transitions from part C of the Act
to part B of the Act regardless of
whether the State has established a
timeline different from the 60-day
evaluation timeline in 34 CFR
300.301(c)(1) of the part B regulations.
Thus, the eligibility determination
must be made by the LEA in sufficient
time to enable the LEA to offer FAPE to
that child who is transitioning from the
part C program by age three (if that child
is eligible as a child with a disability
under part B of the Act), as required by
section 612(a)(9) of the Act and 34 CFR
300.124(b) of the part B regulations.
In response to commenters’ reference
to section 615(j) of the Act and the
Third Circuit decision in Pardini, the
part B pendency provisions in section
615 of the Act and 34 CFR 300.518(c) do
not otherwise require public agencies
under part B of the Act to provide part
B services when a child transitions from
part C to part B of the Act. Additionally,
unless the State elects to offer services
under § 303.211, the lead agency or EIS
provider under part C of the Act is not
required to provide part C services once
the child turns three.
Changes: We have revised
§ 303.211(b)(4) to clarify that the lead
agency must continue to provide all
early intervention services identified in
the toddler with a disability’s IFSP
under § 303.344 (and consented to by
the parent under § 303.342(e)) beyond
age three until that toddler’s initial
eligibility determination under part B of
the Act is made under 34 CFR § 300.306.
This requirement does not apply if the
LEA has requested parental consent for
the initial evaluation under § 300.300(a)
and the parent has not provided that
consent.
Informed Consent (§ 303.211(b)(5))
Comment: One commenter
recommended deleting the words
‘‘where practicable’’ in § 303.211(b)(5),
which relates to the requirement that
the lead agency obtain informed consent
from parents before the child reaches
three years of age. The commenter also
recommended adding language to
§ 303.211(b)(5) to require lead agencies
to obtain verification from parents that
they fully understand the benefits of
both the program implemented under
part B of the Act and the program
implemented under part C of the Act
before allowing the parents to decide
whether to place their child in a part B
or part C program at age three pursuant
to § 303.211.
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60181 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
Discussion: Section 303.211(b)(5)
requires States to ensure that informed
consent is obtained from the parent of
any child to be served under § 303.211.
The phrase ‘‘where practicable’’ was not
intended to mean that parental consent
was optional. To be clear, the lead
agency must obtain informed consent
for all children served under § 303.211.
The ‘‘where practicable’’ language was
intended to modify the requirement that
lead agencies obtain consent before—
rather than after—the child turns three
years of age. We included the ‘‘where
practicable’’ language because we
recognize that it may not always be
possible or practicable for lead agencies
to obtain consent before the child’s third
birthday, for example, when a child is
ill or there is a family emergency. We
have revised § 303.211(b)(5) to clarify
our intended meaning for this provision. Requiring in § 303.211(b)(5) that lead
agencies verify that parents fully
understand the benefits of both the part
B and part C programs is not necessary
for two reasons. First, § 303.211(b)(1)
requires that States provide an annual
notice that includes an explanation of
the differences between early
intervention services provided under
part C of the Act and preschool services
provided under part B of the Act to
parents of children with disabilities
who are eligible under section 619 of
the Act and who previously received
early intervention services. Second,
§ 303.211(b)(5) further provides that
informed consent must be obtained from
parents for the continuation of early
intervention services pursuant to
§ 303.211 for their child. Consent, as defined in § 303.7, means
the parent has been fully informed of all
information relevant to the activity for
which consent is sought in the parent’s
native language or other mode of
communication. This definition of
consent in § 303.7 also requires that the
parent understand and agree in writing
to the activity for which the parent’s
consent is sought. Thus, §§ 303.211(b)(1) and
303.211(b)(5), when read together, make
clear that States are required to obtain
written consent from parents of children
with disabilities eligible under section
619 of the Act who previously received
early intervention services and that this
written consent must state that the
parents fully understand the differences
between early intervention services
provided under part C of the Act and
preschool services provided under part
B of the Act. Repeating this
requirement, as recommended by the
commenter, is not necessary. Changes: We have modified
§ 303.211(b)(5) by separating the language into two sentences. The first
sentence clarifies that a statewide
system of a State offering the option
under § 303.211 must ensure that the
lead agency obtain informed consent
from the parents of any child to be
served under this section for the
continuation of early intervention
services pursuant to § 303.211. We have
moved the phrase ‘‘where practicable’’
to the end of a new second sentence to
clarify that it modifies the requirement
that consent be obtained before the
child reaches three years of age.
Applicability of Transition Timelines
(§ 303.211(b)(6))
Comment: One commenter
recommended revising § 303.211(b)(6)
to provide States with explicit guidance
on how to implement the transition
timeline requirements in
§§ 303.209(c)(1) and 303.209(d)(2). Discussion: We agree that the
transition timelines for children served
under § 303.211 were not clear in
proposed §§ 303.209 and 303.211. Thus,
we have revised § 303.211(b)(6) to
identify the transition requirements ( i.e.,
requirements relating to the transition
from receiving services under § 303.211
to preschool, kindergarten or elementary
school) that apply to children age three
and older who are receiving services
under § 303.211. Specifically, we have
added new § 303.211(b)(6)(i), (b)(6)(ii),
and (b)(6)(iii) to clarify that the lead
agency must notify the SEA and
appropriate LEA, conduct a transition
conference, and develop a transition
plan in the IFSP not fewer than 90 days
before the child will no longer be
eligible under § 303.211(a)(2) to receive
or will no longer receive early
intervention services under § 303.211.
These transition requirements, which
parallel the requirements in
§ 303.209(b)(1)(i), (c)(1), and (d), are
intended to occur after the child is
receiving, but soon to exit from, services
under § 303.211. These transition
requirements do not affect the transition
requirements under § 303.209, which
apply to all infants and toddlers under
the age of three, including those in a
State that elects to provide services
under § 303.211. As noted earlier under new
§ 303.209(f) of this Analysis of
Comments and Changes section of the
preamble, we have clarified in new
§ 303.211(b)(6) that the transition
requirements concerning SEA and LEA
notification, transition conference, and
transition plan in §§ 303.209(b)(1)(i) and
(b)(1)(ii), (c)(1), and (d), respectively,
apply to toddlers with disabilities under
the age of three in a State that elects to
offer services under § 303.211. We have clarified these requirements because
ensuring a seamless transition for
children receiving services under
§ 303.211 is important and the lead
agency and LEA must coordinate
transition planning (including part B
eligibility determination and timely IEP
development) for toddlers who may
continue to receive part C services
under § 303.211.
Finally, we have identified the
appropriate timeline as ‘‘not fewer than
90 days before the child will no longer
be eligible to receive, or will no longer
receive, early intervention services
under § 303.211.’’ We recognize that, in
limited instances, parents may not
notify the lead agency more than 90
days prior to requesting that their child
no longer receive services under
§ 303.211 and, in those instances, it
would not be possible for the lead
agency to meet the requirements in
§ 303.211(b)(6). In these instances, we
encourage lead agencies and SEAs and
LEAs to coordinate, to the extent
feasible, the transition of these children
from early intervention services under
§ 303.211.
Changes: We have revised new
§ 303.211(b)(6) to clarify that toddlers
with disabilities in a State that offers
services under this section are subject to
the transition requirements in
§ 303.209(b)(1)(i) and (b)(1)(ii), (c)(1),
and (d). We also have revised
§ 303.211(b)(6) to describe the lead
agency’s obligations to ensure a smooth
transition for children age three and
older who are receiving services under
§ 303.211 (i.e., transition from § 303.211
services to preschool, kindergarten, or
elementary school). Under new
§ 303.211(b)(6)(ii)(A), the lead agency
must notify the SEA and the LEA where
the child resides not fewer than 90 days
before the child will no longer be
eligible to receive, or will no longer
receive, early intervention services
under § 303.211. In new
§ 303.211(b)(6)(ii)(B), the lead agency
must, with the approval of the parents
of the child, convene a transition
conference, among the lead agency, the
parents, and the LEA, not fewer than 90
days—and, at the discretion of all of the
parties, not more than 9 months—before
the child will no longer be eligible to
receive, or will no longer receive,
§ 303.211 services, to discuss any
services that child may receive under
part B of the Act. Finally, we have
added § 303.211(b)(6)(i)(C) to require
lead agencies to establish a transition
plan in the IFSP not fewer than 90
days—and, at the discretion of all of the
parties, not more than 9 months—before
the child will no longer be eligible to
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60182 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
receive, or no longer will receive,
§ 303.211 services.
Referral Based on Trauma Due to
Exposure to Family Violence
(§ 303.211(b)(7))
Comment: Some commenters
recommended amending § 303.211(b)(7)
to specifically reference infants and
toddlers, not just children over the age
of three, who experience trauma
because the regulatory language in this
section is not consistent with the
explanation for the regulation provided
by the Department in the preamble of
the NPRM. Another commenter stated
that there is no principled reason for
restricting the required referral under
this section to children over the age of
three in States where these children
remain eligible for early intervention
services, while another commenter
questioned whether the requirement to
refer children under the age of three
based on trauma due to exposure to
family violence only applies to children
in States implementing the birth to
kindergarten option. Discussion: It appears that the
commenters may have misunderstood
§ 303.211(b)(7). Section 303.211(b)(7),
consistent with section 635(c)(2)(G) of
the Act, requires, for States that adopt
policies under § 303.211, a referral for
evaluation for early intervention
services of a child under the age of three
who experiences a substantiated case of
trauma due to exposure to family
violence, as defined in section 320 of
the Family Violence Prevention and
Services Act. This requirement only
applies to children under the age of
three because children age three and
older are not eligible to be referred for
early intervention services under any
provision in part C of the Act. Children
age three and older will either continue
to receive early intervention services for
which they were already referred or
would be referred to the part B system.
Referrals to the part B system are
addressed under part B of the Act; it
would not be appropriate to address
them under this part. Section 303.211(b)(7) clarifies that a
referral for evaluation for early
intervention services applies only to
children under the age of three who
experience a substantiated case of
trauma due to exposure to family
violence, and only in States
implementing the State option in
§ 303.211 to make part C services
available to children ages three and
older. An example of a child who may
be referred under § 303.211(b)(7) would
be a child under the age of three who
has experienced a substantiated case of
trauma due to exposure to family violence and who is a sibling of a child
already receiving early intervention
services under the option described in
§ 303.211.
We have not amended § 303.211(b)(7)
as requested by the commenters;
however, we have removed the
parenthetical in new
§ 303.302(c)(1)(ii)(A) (proposed
§ 303.301(c)(1)(ii)(A)) and new
§ 303.303(c)(11) (proposed
§ 303.302(c)(11)). The parenthetical in
§ 303.302(c)(1)(ii)(A) (proposed
§ 303.301(c)(1)(ii)(A)) limits
coordination of the child find system
with programs that provide services
under the Family Violence and
Prevention Act to States that elect to
make services available under this part
to children after the age of three. The
parenthetical in new § 303.303(c)(11)
(proposed § 303.302(c)(11)) limits the
scope of domestic violence shelters and
agencies as primary referral sources to
‘‘domestic violence shelters and
agencies in States that elect to make
services available under this part to
children after the age of three.’’
The Department’s position is that
domestic violence shelters and agencies
should be considered primary referral
sources regardless of whether the State
that they are located in elects to make
services available under this part to
children after the age of three. It is the
Department’s position that it is not
appropriate to limit either coordination
or referrals in this manner and, thus, we
have removed each parenthetical in new
§ 303.302(c)(1)(ii)(A) (proposed
§ 303.301(c)(1)(ii)(A)) and new
§ 303.303(c)(11) (proposed
§ 303.302(c)(11)).
Changes: We have removed the
parenthetical ‘‘(for States electing to
make available services under this part
to children with disabilities after the age
of three in accordance with section
635(c)(2)(G) of the Act and § 303.211)’’
from § 303.302(c)(1)(ii)(A) (proposed
§ 303.301(c)(1)(ii)(A)) and new
§ 303.303(c)(11) (proposed
§ 303.302(c)(11)).
Comment: One commenter requested
that the Department clarify in
§ 303.211(b)(7), or elsewhere in
§ 303.211, the parental consent
requirements for children receiving
services under § 303.211. Specifically,
the commenter questioned whether the
definition of parent in § 303.27 and
general consent for evaluation
requirements in § 303.420(a)(2) apply to
this section. The commenter also
expressed concern that parental consent
may be difficult to obtain for the
children referenced in § 303.211(b)(7),
especially for children who are under the jurisdiction of a child protective
services agency.
Discussion: If a State elects to offer
services under § 303.211, the lead
agency must obtain parental consent as
required under § 303.211(b)(5) before
making those services available. The
Department’s position is that
§ 303.211(b)(5) is sufficiently clear with
regard to parental consent and, thus, we
have not revised § 303.211(b)(5) as
requested by the commenter. The
definition of parent under part C of the
Act in § 303.27 applies to the parental
consent requirement in § 303.211(b)(7).
A parent, as defined in § 303.27, can be
a biological or adoptive parent, foster
parent (unless State law, regulation, or
contractual obligation prohibits the
foster parent from acting as a parent), a
guardian generally authorized to act as
the child’s parent (or authorized to
make early intervention, educational,
health, or developmental decisions for
the child, but not the State if the child
is a ward of the State), an individual
acting in the place of a biological or
adoptive parent (including a
grandparent, stepparent or other relative
with whom the child lives), an
individual legally responsible for the
child’s welfare, or a surrogate parent
appointed in accordance with § 303.422
or section 639(a)(5) of the Act. The lead agency’s process for
obtaining parental consent under
§ 303.211 is the same as its process for
obtaining parental consent under
§ 303.420(a), whether parental consent
is needed to conduct an evaluation
under part C of the Act or to provide
part C services. While we appreciate the commenter’s
concern about obtaining parental
consent when a child is placed with a
child protective services agency, the
Department’s position is that the
regulations in this part provide
sufficient clarity and information about
how to proceed in this situation. First,
§ 303.27 identifies who can serve as the
parent under part C of the Act and
whether a surrogate parent needs to be
appointed. Further, § 303.27(b)(1)
explains that if more than one
individual meets the definition of a
parent, the biological or adoptive parent
must be presumed to be the parent
unless that parent’s authority is
circumscribed as set forth in that
section. Second, § 303.420 specifies
when the lead agency must obtain
consent from a parent. Parental consent
must be obtained before early
intervention services are provided to the
child. Third, § 303.421 provides
information about important aspects of
the consent process, prior written
notice, and procedural safeguards.
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Fourth, § 303.420 sets forth the
requirements and options if parental
consent is not obtained. Given these
other regulatory requirements, the
Department’s position is that the issue
of obtaining parental consent for the
children referenced in § 303.211(b)(7) is
addressed appropriately and
sufficiently.
Changes: None.
Rules of Construction (§ 303.211(e)) Comment: A few commenters
expressed concern about the rules of
construction provision in § 303.211(e).
One commenter stated that these
provisions may contradict a parent’s
option to select part B services if a State
offers a ‘‘Birth to Five’’ program.
Another commenter requested that the
Department expand the rules of
construction to include a provision that
a lead agency will not be held
responsible for meeting transition
timelines when a child is referred for
part C services less than 45 days prior
to the time that the transition
conference is due to be held. Discussion: States are not required to
implement the provisions in § 303.211.
This section simply provides States
with an option to make services under
part C of the Act available to children
ages three and older. If a State decides
to offer this option, parents may choose
for their children to receive early
intervention services, rather than part B
services, beyond the age of three.
Nothing in § 303.211 or section 635(c) of
the Act affects a parent’s right to choose
services under part B of the Act at any
time once the child is eligible to receive
part B services. Additionally, nothing in
§ 303.211 or section 635(c) of the Act
requires a State to use the option
described in § 303.211 in order to
implement policies and procedures for
transition to preschool and other
programs included in § 303.209. Finally, the commenter requested that
we amend the rules of construction to
state that a lead agency will not be held
responsible for meeting transition
timelines when a child is referred for
part C services less than 45 days prior
to the time that the transition
conference is required to be held under
§ 303.209. The rules of construction in
§ 303.211(e) only apply to § 303.211 and
thus only apply to children over the age
of three who were previously eligible for
and received early intervention services
under part C of the Act. A child over the
age of three who was previously eligible
for and already received early
intervention services under part C of the
Act would never need to be referred for
part C services and, therefore, the
transition timeline requirements in § 303.209 do not apply to these
children. For this reason, we decline to
make the change requested by the
commenter.
Changes: None.
Additional Information and Assurances
(§ 303.212) Comment: None.
Discussion: To create a freestanding
document in these regulations, we have
added as new § 303.212(a), regarding
additional information and assurances
that must be included in each State’s
part C application, a provision that
incorporates the application content
requirements under section 427(b) of
GEPA. This provision of GEPA requires
a State application to include a
description of the steps that the State is
taking to ensure equitable access to, and
equitable participation in, the programs
that will be conducted by the State
using Federal funds (in this case,
Federal funds for the part C program).
This provision also requires the State to
develop and describe in its application
the steps the State is taking to address
the special needs of program
beneficiaries (in this case, infants and
toddlers with disabilities and their
families) in order to overcome barriers
to equitable participation, including
barriers based on gender, race, color,
national origin, disability, and age. Changes: We have added a new
paragraph (a) to § 303.212 to clarify that
a State’s part C application must
include: ‘‘A description of the steps the
State is taking to ensure equitable access
to, and equitable participation in, the
part C statewide system as required by
section 427(b) of GEPA.’’
Reports and Records (§ 303.224)
Comment: A few commenters
expressed concern with the
requirements in § 303.224. One
commenter stated that this section
grants the Secretary broad authority
over State recordkeeping without
providing appropriate notice to States
about the content they are required to
maintain in the records. Another
commenter expressed concern that
States may not have the data to respond
to requests from the Secretary and
recommended that, if adopted, the
requirement should be modified to
indicate that data requests from the
Secretary cannot be unreasonable or
place an undue burden on States. One
commenter requested that the
Department include in § 303.224 a
reference to the Single Audit Act. Discussion: This section tracks the
language from section 637(b)(4) of the
Act, which requires States both to
ensure that reports are in the form and contain the information that the
Secretary may require to carry out the
functions under part C of the Act and to
keep such reports and afford such
access to the reports as the Secretary
may find necessary to ensure the
correctness and verification of those
reports and proper disbursement of
Federal funds under part C of the Act.
The purpose of this section is for the
Secretary to have access to the proper
records to ensure compliance with the
part C requirements. The requirements
in this section do not reflect any new
requirements or an additional burden on
States.
Regarding the request to add a
reference to the Single Audit Act in this
section, it would be redundant to
identify all of the provisions in other
authorities such as GEPA, Education
Department General Administrative
Regulations (EDGAR), and the Single
Audit Act that require the lead agency
to maintain fiscal accounting records.
Thus, we decline to add this reference
as requested by the commenter.
Changes: None.
Prohibition Against Supplanting;
Indirect Costs (§ 303.225) Comment: The Department received
several comments on proposed
§ 303.225 in the following areas: the
Single Audit Act, the phrase ‘‘and
increase’’ in proposed § 303.225(b)(1)(i),
and whether States must certify and
verify that they have maintained fiscal
effort from year to year.
Discussion: Since the publication of
the NPRM in May 2007, the Department
has received many informal inquiries
requesting guidance on MOE
requirements (which implement the
supplement not supplant requirements
under part C of the Act). States also
have expressed concern about their
ability to meet the MOE requirements
and their continued participation in the
part C program. So that we can seek
further input on the MOE requirements,
the Department intends to issue an
NPRM on the MOE requirements.
Therefore, we are not finalizing
proposed § 303.225 and instead are
incorporating into § 303.225(a) the
provisions in section 637(b)(5) of the
Act, which prohibit the commingling of
Federal funds with State funds and
supplanting State and local funds with
Federal funds. We also are incorporating
into § 303.225(b) the MOE requirements
in current § 303.124 and are retaining
the indirect cost provisions in proposed
§ 303.225(c).
Changes: We have revised proposed
§ 303.225(a) to include language from
section 637(b)(5) of the Act and replaced
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proposed § 303.225(b) with current
§ 303.124.
Traditionally Underserved Groups
(§ 303.227)
Comment: A few commenters
supported the requirement in § 303.227
that ensures policies and practices be
adopted so that traditionally
underserved groups, including minority
low-income, homeless, rural families,
and children with disabilities who are
wards of the State are meaningfully
involved in the planning and
implementation of services. However,
the commenters suggested that all
families, not just those identified in this
section, should have access to culturally
competent services. Another commenter
recommended including explicit
language requiring a State to ensure that
its service providers have an
understanding of the communication
norms and family customs of
traditionally underserved groups as a
part of the cultural competence
mentioned in § 303.227(b). Discussion: Early intervention
services, as defined in § 303.13, must be
designed to meet the needs of an infant
or toddler with a disability, and as
requested by the family, the needs of the
family to assist appropriately in the
infant’s or toddler’s development. Thus,
all families of an infant or toddler with
a disability must be provided with
access to culturally competent services
when those services are necessary to
meet the needs of their child. Section
303.227(b) does not limit this
requirement in any way; it simply
focuses on the access of traditionally
underserved groups to culturally
competent services, consistent with the
provisions in current § 303.128 and
section 637(b)(7) of the Act, which
require a State to provide, in its
application, policies and procedures
that ensure meaningful involvement of
underserved groups in the planning and
implementation of all the requirements
of this part. Thus, the Department’s
position is that the regulations in this
part adequately address the
commenter’s concern about families’
access to culturally competent services. We do not define the term cultural
competence in these regulations because
it is the Department’s position that
States are in the best position to
determine the parameters of ‘‘culturally
competent services’’ to meet the unique
needs of their populations. Changes: None.
Comment: A few commenters
requested that § 303.227 require States
to identify and address barriers faced by
homeless children and other
traditionally underserved populations when attempting to participate in part C
programs.
Discussion: We appreciate the
commenter’s concerns regarding barriers
faced by homeless children and other
traditionally underserved populations
when attempting to participate in part C
programs, but it is the Department’s
position that it is unnecessary and
inappropriate to add language to these
regulations to require States to identify
and address those barriers. This subject
is more appropriately addressed through
technical assistance and guidance so
that the Department can work
collaboratively with States to assist each
State to identify the traditionally
underserved populations that are
specific to the State, meet the needs of
homeless children and the infants and
toddlers with disabilities in the
identified populations, and address the
barriers to service for homeless children
and infants and toddlers with
disabilities in the identified
populations. Additionally, the
McKinney-Vento Act offers a number of
protections to homeless children,
including homeless infants and toddlers
with disabilities, and it is the
Department’s position that it is not
necessary to duplicate the requirements
of the McKinney-Vento Act in these
regulations. The Department is
committed to providing technical
assistance to States in order to assist
States in their ability to ensure access to
early intervention services by homeless
children and other traditionally
underserved populations. Changes: None.
Notice and hearing before
determining that a State is not eligible
(§ 303.231(a)(1)(i)). Comment: One commenter
recommended that § 303.231(a)(1)(i) be
amended to ensure that a State receive
at least 90 days notice—not just
‘‘reasonable notice’’—prior to the
Secretary making a final determination
that the State is ineligible to receive its
part C grant award. Discussion: Section 637(c) of the Act
provides that the Secretary may not
disapprove an application for a part C
grant award unless the Secretary
determines, after notice and opportunity
for a hearing, that the application fails
to comply with the requirements under
part C of the Act. Both parts B and C of
the Act in current § 303.101 (which
references 34 CFR 300.581 through
300.586 of the part B regulations in
effect prior to October 13, 2006) and 34
CFR 300.179 of the current part B
regulations require the Secretary to
provide a State with reasonable notice
before making a final determination that
the State is ineligible to receive a grant award. Section 303.231(a)(1)(i)
incorporates this long-standing
reasonable notice requirement and thus
provides both the Department and
States with the flexibility to address
circumstances on a case-by-case basis.
Therefore, it is the Department’s
position that it is not necessary to add
a 90-day timeline as requested by the
commenter.
Changes: None.
Subpart D—Child Find, Evaluations
and Assessments, and Individualized
Family Service Plans
General (New § 303.300)
Comment: We received a number of
comments concerning subpart D of these
regulations; many of these comments
suggested that there is some confusion
in the field about the implementation of
the child find, screening, evaluation,
assessment, and IFSP provisions in the
proposed regulations.
Discussion: Given the number of
comments we received on this subpart,
we have provided an overview of how
subpart D is organized and how the
components described in this subpart
relate to one another. We have added a
new § 303.300 to identify and
distinguish the following required
components of the part C statewide
early intervention system: (a) Pre-
referral (public awareness and child
find) policies and procedures, (b)
referral policies and procedures, and (c)
post-referral policies and procedures.
Accordingly, we have renumbered the
public awareness program provisions as
new § 303.301 and the child find
provisions as new § 303.302.
In order for the part C statewide
system to identify, locate, evaluate, and
serve all infants and toddlers with
disabilities effectively, the system must
be both comprehensive and
coordinated. As clarified in this subpart,
this means establishing policies and
procedures for (a) pre-referral activities
(i.e., to make the public aware of the
availability of early intervention
services and to coordinate with other
programs to identify and locate infants
and toddlers with disabilities), (b) the
referral of children under the age of
three to the part C program, and (c) post-
referral activities (i.e., the screening, if
applicable, of children under the age of
three who have been referred to the part
C program under new § 303.320
(proposed § 303.303); the evaluation and
assessment of the child and the child’s
family under new § 303.321 (proposed
§ 303.320); and the development,
review, and implementation of the IFSP,
under §§ 303.342 through 303.346).
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Subpart D follows the general
chronological order of the pre-referral,
referral, and post-referral components of
the part C statewide system.
Specifically, this subpart begins by
describing the required public
awareness program (part of the pre-
referral process) and ends with a
requirement that public agencies and
EIS providers that are directly
responsible for providing early
intervention services to a child make
good faith efforts to assist that child in
achieving the outcomes in the child’s
IFSP (part of the post-referral process).
In this way, we intend subpart D of
these regulations to provide the
framework for effectively identifying,
locating, and providing early
intervention services to all eligible
infants and toddlers with disabilities. Changes: We have added new
§ 303.300 to identify and distinguish
between the pre-referral, referral, and
post-referral components of a statewide
early intervention system. Section
303.300 states that the statewide
comprehensive, coordinated,
multidisciplinary interagency system to
provide early intervention services for
infants and toddlers with disabilities
and their families required in § 303.1
must include the following components:
(a) Pre-referral policies and procedures
that include a public awareness program
as described in new § 303.301 (proposed
§ 303.300) and a comprehensive child
find system as described in new
§ 303.302 (proposed § 303.301); (b)
Referral policies and procedures as
described in new § 303.303 (proposed
§ 303.302); and (c) Post-referral policies
and procedures to ensure compliance
with the timeline requirements in new
§ 303.310 and that include screening, if
applicable, as described in new
§ 303.320 (proposed § 303.303);
evaluations and assessments as
described in new § 303.321 (proposed
§ 303.320); and development, review,
and implementation of IFSPs as
described in §§ 303.342 through
303.346.
Public Awareness Program—
Information for Parents (New § 303.301)
(Proposed § 303.300)
Comment: A few commenters
supported proposed § 303.300(a)(1)(ii),
which specifically included parents
with premature infants or infants with
other physical risk factors associated
with learning or developmental
complications among those parents to
whom information about early
intervention services must be
disseminated. These commenters
requested that we add a requirement
that child find activities be conducted in collaboration with parent advocacy
groups or other community agencies
that are available to answer questions
and provide support to these families as
they access services.
Discussion: The regulations track the
language in section 635(a)(6) of the Act,
which describes the required public
awareness program. Although
collaboration with parent advocacy
groups or other community agencies
regarding public awareness is not
specifically mentioned in the Act or
these regulations, there is nothing in the
Act or these regulations that prevents a
State from collaborating with other
community resources to disseminate
public awareness materials beyond
primary referral sources. We do not
mandate that public awareness
materials be distributed to all parent
advocacy groups or community agencies
in these regulations because each State
needs the flexibility to tailor its public
awareness programs to the population of
infants and toddlers with disabilities
who may be eligible in that State (e.g.,
a State that serves at-risk infants and
toddlers may target specific agencies).
This approach will allow States to
create and implement a public
awareness program that includes the
appropriate and necessary components
to effectively meet State-specific needs. Changes: None.
Comment: Some commenters
recommended including the notes from
current § 303.320, regarding a system’s
public awareness program, in new
§ 303.301 (proposed § 303.300) because
these notes provided clarity to lead
agencies. Discussion: New § 303.301 (proposed
§ 303.300) is consistent with section
635(a)(6) of the Act, which describes the
requirements of a public awareness
program. Notes 1 and 2 following
current § 303.320 describe the
components of an effective public
awareness program and provide
examples of methods for informing the
general public about the provisions of
this part. We do not wish to make the
substance of these notes regulatory
requirements because we do not want to
limit State flexibility to create a public
awareness program that meets State-
specific needs. While we have not incorporated the
notes as requirements in the regulations,
we continue to believe that an effective
public awareness system is one that
involves an ongoing effort that is in
effect throughout a State, including
rural areas; provides for the
involvement of, and communication
with, major organizations throughout a
State that have a direct interest in this
part, including public agencies at the State and local level, private providers,
professional associations, parent groups,
advocate associations, and other
organizations; has coverage broad
enough to reach the general public,
including those who have disabilities;
and includes a variety of methods for
informing the public about the
provisions of this part. Methods for
informing the public continue to
include the use of printed materials,
television, radio, and the Internet, but
may also include other appropriate
methods in a particular State. For these
reasons, we decline to revise new
§ 303.301 (proposed § 303.300) as
requested by the commenter.
Changes: None.
Comment: One commenter
recommended adding a reference to
other family members after each
mention of parents in this section.
Discussion: New § 303.301 (proposed
§ 303.300) tracks the language in section
635(a)(6) of the Act, regarding
disseminating information about
available early intervention services to
parents of infants and toddlers with
disabilities. While family members—
other than parents—may voluntarily
participate in a family assessment, may
be invited by a parent to participate in
IFSP meetings, and may be included
when early intervention services are
provided, the parent of an infant or
toddler is ultimately responsible for
making decisions under these
regulations. The term parent is broad
enough to encompass not just the
biological or adoptive parent but other
individuals who meet the definition in
§ 303.27. Additionally, nothing in these
regulations prevents the lead agency
from disseminating its public awareness
materials through primary referral
sources to other family members.
Therefore, it is the Department’s
position that not extending this
requirement to other family members of
infants and toddlers with disabilities is
appropriate.
Changes: None.
Comment: Two commenters requested
clarification of new § 303.301(c)
(proposed § 303.300(b)(4)), which
required the lead agency to provide
parents of toddlers who are nearing
transition age with a description of the
availability of services under section
619 of the Act. These commenters
questioned when this description must
be provided and whether providing it
when a toddler is two years and four
months of age would meet the
requirement to provide information at
least nine months prior to a child’s third
birthday in new § 303.301(c) (proposed
§ 303.300(b)(4)).
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One commenter stated that the public
awareness requirement in new
§ 303.301(c) (proposed § 303.300(b)(4))
should be the responsibility of public
agencies responsible for implementing
part B of the Act and should be a
collaborative effort between the State
part B and C agencies and local part B
programs to ensure that all parents and
families are fully informed of the
availability of services under section
619 of the Act. Discussion: We agree that, as written,
proposed § 303.300(b)(4) did not
provide sufficient clarification regarding
when, and to whom, a description of the
availability of services under section
619 of the Act must be provided.
Accordingly, we have revised new
§ 303.301(c) (proposed § 303.300(b)(4))
to specify that each public awareness
program must include a requirement
that the lead agency provide for
informing parents of toddlers with
disabilities of the availability of
preschool services under section 619 of
the Act not fewer than 90 days prior to
the child’s third birthday. We have
removed the reference to ‘‘toddlers with
disabilities nearing transition age’’ and
instead clarified the timeline by which
the information must be provided. We
have revised this timeline so that it is
consistent with the timelines for LEA
notification and other transition
requirements in § 303.209. In response to the specific comment
asking whether providing public
awareness under new § 303.301(c)
(proposed § 303.300(b)(4)) to parents
when their toddler reaches two years
and four months of age would be in
compliance with this requirement, it
would be in compliance under the
revised requirement because each lead
agency must ensure that information
about preschool services under section
619 of the Act is provided to parents of
toddlers with disabilities not fewer than
90 days prior to the toddler’s third
birthday. Concerning the comment that the
public awareness requirement should be
the responsibility of the part B State or
local public agencies, section 635(a)(6)
of the Act was revised in 2004 to require
that the lead agency prepare and
disseminate information about
preschool services under section 619 of
the Act. SEAs and LEAs have child find
responsibilities as defined in sections
612 and 619 under part B of the Act.
The requirement in new § 303.301(c)
(proposed § 303.300(b)(4)) reflects the
lead agency’s responsibilities under
sections 635(a)(6) and 637(a)(9) of the
Act to ensure that information about
part B preschool services is available to
parents of all toddlers with disabilities exiting the part C program, not just
those toddlers who have been
determined by the lead agency to be
potentially eligible under part B of the
Act.
Concerning the commenter’s request
to require collaboration between the
State and local part B and part C
agencies, adding this requirement is
unnecessary because, under new
§ 303.302(c) (proposed § 303.301(c)), the
lead agency, with the assistance of the
Council, must ensure that its child find
system under part C of the Act is
coordinated with the State’s child find
efforts under part B of the Act.
Changes: We have revised new
§ 303.301(c) (proposed § 303.300(b)(4))
to specify that each public awareness
program must include a requirement
that the lead agency provide for
informing parents of toddlers with
disabilities of the availability of
preschool services under section 619 of
the Act not fewer than 90 days prior to
the child’s third birthday. Additionally,
because we have clarified that parents
must be provided with this information
not fewer than 90 days prior to their
toddler’s third birthday, we have
deleted the parenthetical ‘‘starting at
least nine months prior to the child’s
third birthday.’’
Comprehensive Child Find System (New
§ 303.302) (Proposed § 303.301)
Comment: None.
Discussion: To reflect the varied
administrative structures of different
part C child find systems and the
revised definitions of public agency and
EIS provider in §§ 303.30 and 303.12,
respectively, we have replaced the
reference to ‘‘public agencies’’ with
‘‘lead agencies or EIS providers’’ in new
§ 303.302(a)(2) (proposed
§ 303.301(a)(2)), regarding the child find
system including a system for making
referrals to lead agencies and EIS
providers.
Changes: We have replaced the
reference to ‘‘public agencies,’’ in new
§ 303.302(a)(2) (proposed
§ 303.301(a)(2)), with a reference to
‘‘lead agencies or EIS providers’’.
Comment: A few commenters
requested that the Department define
the term ‘‘rigorous,’’ as that term is used
to modify ‘‘standards for appropriately
identifying infants and toddlers with
disabilities under this part that will
reduce the need for future services’’ in
new § 303.302(a)(3) (proposed
§ 303.301(a)(3)). These commenters
asked the Department to provide
specific guidance on how to define this
term to avoid arbitrary and conflicting
applications of the standards. Discussion:
New § 303.302(a)(3)
(proposed § 303.301(a)(3)), consistent
with section 635(a)(5) of the Act,
requires that each State’s part C child
find system include rigorous standards
for appropriately identifying infants and
toddlers with disabilities for early
intervention services that reduce the
need for future services. We interpret
the term ‘‘rigorous’’ in this section to
mean that the State has obtained public
(including stakeholder) input on its
child find system policies and
procedures that are required in
§§ 303.101(a)(2), 303.115, and 303.116.
Requiring public input ensures that
stakeholders who have an interest in the
development of a State’s child find
system, including parents of infants and
toddlers with disabilities, EIS providers,
Council members, and other
stakeholders, have adequate opportunity
to comment on, and inform, the
decision-making process regarding a
State’s child find policies and
procedures. Changes: None.
Comment: A few commenters
recommended removing the phrase
‘‘that will reduce the need for future
services’’ from new § 303.302(a)(3)
(proposed § 303.301(a)(3)), which
requires each State’s child find system
to include rigorous standards for
appropriately identifying infants and
toddlers with disabilities for early
intervention services that will reduce
the need for future services. These
commenters stated that eligible infants
and toddlers should have access to
necessary early intervention services
regardless of whether the lead agency or
EIS provider expects the early
intervention services to reduce a child’s
need for future services. Discussion: New § 303.302(a)(3)
(proposed § 303.301(a)(3)) incorporates
statutory language from section
635(a)(5) of the Act and reflects the
finding in section 631(a)(2) that there is
an urgent and substantial need to reduce
the educational costs to our society,
including our nation’s schools, by
minimizing the need for special
education and related services after
infants and toddlers with disabilities
reach school age. Thus, new
§ 303.302(a)(3) (proposed
§ 303.301(a)(3)) does not require a
determination as to whether a specific
infant or toddler with a disability will
or will not require future services, but
rather reflects one of the critical
findings underlying part C of the Act. Changes: None.
Comment: None.
Discussion: We have made a minor
change to new § 303.302(b)(1)(i)
(proposed § 303.301(b)(1)(i)) to clarify
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60187 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
that the coordination with tribes, tribal
organizations, and consortia is for the
purpose of identifying infants and
toddlers with disabilities in the State
based, in part, on the information
provided by these entities to the lead
agency under § 303.731(e)(1).
Changes: We have revised the
parenthetical in new § 303.302(b)(1)(i)
(proposed § 303.301(b)(1)(i)) by adding
the words ‘‘to identify infants and
toddlers with disabilities in the State
based, in part, on’’ before the words
‘‘the information provided.’’ Comment: Many commenters
supported retaining the requirement
from current § 303.321(b)(2), which
requires that an effective method be
developed and implemented to
determine which children are receiving
needed early intervention services.
However, these commenters strongly
opposed the requirement in proposed
§ 303.301(b)(2) to have an effective
method to determine which children are
not in need of early intervention
services. The commenters argued that
this is not a statutory requirement and
would add significant burden to lead
agencies. Discussion: We agree with the
commenters that child find efforts under
part C of the Act should focus on
identifying infants and toddlers with
disabilities who are potentially eligible
for, or in need of, early intervention
services and not those who are not
potentially eligible for such services.
Therefore, we have removed the
requirement that lead agencies must
determine which children are not in
need of services in new § 303.302(b)(2)
(proposed § 303.301(b)(2)). Changes: We removed the phrase
‘‘and which children are not in need of
those services’’ in new § 303.302(b)(2)
(proposed § 303.301(b)(2)). Comment: None.
Discussion: Proposed
§ 303.301(c)(1)(ii)(G) identified ‘‘child
protection programs, including
programs administered by, and services
provided through, the foster care agency
* * *’’ as one of the programs that the
lead agency must ensure that it
coordinates with when implementing its
child find responsibilities. However,
child welfare programs, such as the
foster care system, and child protection
programs are two different programs
and in some States are not in the same
system. Therefore, we have clarified in
new § 303.302(c)(1)(ii)(G) (proposed
§ 303.301(c)(1)(ii)(G)) that lead agencies
must coordinate child find activities
with both child protection and child
welfare programs. Changes: We have added the words
‘‘and child welfare’’ after the words ‘‘child protection’’ in new
§ 303.302(c)(1)(ii)(G) (proposed
§ 303.301(c)(1)(ii)(G)).
Comment: None.
Discussion: As previously stated in
the Analysis of Comments and Changes
section for subpart C of these
regulations, upon further review, the
Department has determined that it is not
appropriate to limit either coordination
with, or referrals from, the programs
that provide services under the Family
Violence Prevention and Services Act in
new § 303.302(c)(1)(ii)(A) (proposed
§ 303.301(c)(1)(ii)(I)) and
§ 303.303(c)(11) (proposed
§ 303.302(c)(11)). Therefore, we have
removed the following language ‘‘(for
States electing to make available
services under this part to children with
disabilities after the age of three in
accordance with section 635(c)(2)(G) of
the Act and § 303.211.)’’ from new
§ 303.302(c)(1)(ii)(A) (proposed
§ 303.301(c)(1)(ii)(I)) and
§ 303.303(c)(11) (proposed
§ 303.302(c)(11)). Changes: We have removed the
parenthetical referencing section
635(c)(2)(G) of the Act and § 303.211
from new § 303.302(c)(1)(ii)(A) and
§ 303.303(c)(11). Comment: Several commenters
recommended adding the Children’s
Health Insurance Program (CHIP) to the
list of programs with which the lead
agency must coordinate its child find
activities in new § 303.302(c)(1)(ii)
(proposed § 303.301(c)(1)(ii)) because
many children with disabilities
participate in CHIP. A few commenters
requested adding State Early Hearing
Detection and Intervention (EHDI)
systems to this list as well. Discussion: We agree with
commenters that coordinating with the
CHIP programs and State Early Hearing
Detection Intervention (EHDI) systems
can assist the lead agency in its child
find responsibilities to identify infants
and toddlers with disabilities. The
addition of these two programs in the
child find coordination provision in
new § 303.302(c)(1)(ii) does not mean
that these entities are ‘‘participating
agencies’’ under § 303.403 if they
function as primary referral sources or
funding sources, but do not otherwise
meet the definition of participating
agency in § 303.403. CHIP is authorized under Title XXI of
the Social Security Act and each State
determines the level of income
eligibility and available health benefits
for children. In many States, CHIP
benefits are combined with benefits
under Medicaid (Title XIX of the Social
Security Act). Requiring the lead agency
to coordinate its child find efforts with the CHIP program ensures
nonduplication of Federal and State
funds and efforts to provide needed
health services to eligible children.
Each State has a State EHDI program,
which is responsible for creating a
system of newborn hearing screening,
follow-up, audiological diagnosis (for
those who do not pass screening), and
intervention (for those who are
identified with hearing loss). Recent
data indicate that 55 percent of State
EHDI programs never or rarely notify
the part C statewide system about
infants who have failed their final
hearing screening. (National Center for
Hearing Assessment and Management,
The Impact of Privacy Regulations, May
2008, available at http://
www.infanthearing.org) By adding the
State EHDI program in
§ 303.302(c)(1)(ii), we acknowledge that
coordination between the State EHDI
program and the statewide child find
system can play a critical role in the
referral of children from the EHDI
program to the part C program to
identify children potentially eligible for
part C early intervention services,
including infants and toddlers who are
deaf or hard of hearing. Therefore, we
have added CHIP and EHDI to the
programs listed in new
§ 303.302(c)(1)(ii) (proposed
§ 303.301(c)(1)(ii)). Nothing precludes the State lead
agency from coordinating with
additional appropriate entities in the
State, such as Grant-Supported
Federally Qualified Health Centers
(‘‘FQHCs’’), which include Community
Health Centers and Healthcare for the
Homeless Programs, see 42 U.S.C.
§§ 254b(a), 1396a(a)(10)(A),
1396d(a)(2)(C); the Temporary
Assistance for Needy Families (TANF)
Program, see 42 U.S.C. §§ 601 et seq.;
the supplemental nutrition program for
Women, Infants and Children (WIC), see
42 U.S.C. §§ 1786 et seq.; and the
Supplemental Nutrition Assistance
Program (‘‘SNAP’’) (formerly the Federal
Food Stamp program), see 7 U.S.C. 2011
et seq. Some of these programs may
serve as primary referral sources. We
note that some States have adopted a
centralized intake center for families for
many State health, social welfare, public
assistance, and other programs that
target the health and welfare of children
and families and that the part C early
intervention program may be included
in such an intake center. Changes: We have added new
paragraphs (J) and (K) to new
§ 303.302(c)(1)(ii) to include EHDI and
CHIP among the programs with which
the lead agency must coordinate its
child find activities.
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Comment: None.
Discussion: To provide consistency
between the lead agency’s
responsibilities to ensure non-
duplication of child find efforts in new
§ 303.302(c)(2)(i) (proposed
§ 303.301(c)(2)(i)) and child find
coordination in new § 303.302(c)(1)(ii)
(proposed § 303.301(c)(1)(ii)), we have
replaced, in new § 303.302(c)(2)(i)
(proposed § 303.301(c)(2)(i)), the broad
reference to various agencies with a
reference to the specific programs
identified in new § 303.302(c)(1)(ii)
(proposed § 303.301(c)(1)(ii)), with
which the lead agency must coordinate
its child find efforts. Changes: We have replaced in new
§ 303.302(c)(1)(ii) (proposed
§ 303.301(c)(2)(i)) the phrase ‘‘various
agencies involved in the State’s child
find system under this part’’ with
‘‘programs identified in paragraph
(c)(1)(ii) of this section.’’ Comment: One commenter requested
clarification on why the reference to
public agency was deleted from new
§ 303.302(c)(1)(ii) (proposed
§ 303.301(c)(2)(ii)), concerning the
requirement that the State make use of
each EIS provider in implementing
child find in an effective manner.
Another commenter disagreed with the
language in proposed § 303.301(c)(2)(ii)
because public agencies that provide
services to young children are critical to
the child find system and these public
agencies should be expressly referenced
and continue to be an active part of the
child find system. Both commenters
recommended that current
§ 303.321(c)(2)(ii) be retained. Discussion: Current § 303.321(c)(2)(ii),
regarding coordination efforts, provides
that the lead agency make use of the
resources available through each public
agency in the State to implement child
find in an effective manner. We added
in new § 303.302(c)(2)(ii) (proposed
§ 303.301(c)(2)(ii)) a reference to EIS
providers because of the revised
definitions of EIS providers and public
agencies. We agree with the commenters
that the reference to public agencies
should be reinstated and also have
added that reference. Changes: We have added the words
‘‘each public agency’’ to the reference to
‘‘EIS provider in the State’’ to new
§ 303.302(c)(2)(ii) (proposed
§ 303.301(c)(2)(ii)).
Referral Procedures (New § 303.303)
(Proposed § 303.302)
Comment: None.
Discussion: We have made a technical
edit to new § 303.303(a)(1) (proposed
§ 303.302(a)(1)) to clarify that the
referral procedures that lead agencies must provide to primary referral sources
are the State’s procedures for referring a
child under the age of three to the part
C program.
Changes: We have added the word
‘‘State’s’’ before the word ‘‘procedures’’
in § 303.303(a)(1) (proposed
§ 303.302(a)(1)). Comment: Many commenters
supported removing current
§ 303.321(d)(2)(ii), which required
primary referral sources to refer a child
to the part C program within two
working days of the child’s
identification. The commenters stated
that because the two-day timeline was
not enforceable by lead agencies, they
supported the language in proposed
§ 303.302(a)(2)(i) that requires referrals
be made as soon as possible. These
commenters stated that requiring
primary referral sources to refer
identified children as soon as possible
would provide States with the flexibility
to establish or maintain more stringent
reporting requirements on primary
referral sources, while acknowledging
the difficulties associated with
monitoring the adherence of thousands
of primary referral sources to a Federal
standard. A significant number of commenters,
however, opposed the language in
proposed § 303.302(a)(2)(i) and
recommended retaining the two-day
timeline for referrals in current
§ 303.321(d)(2)(ii). These commenters
expressed concern that the proposed
timeline, i.e., as soon as possible,
threatens to introduce long delays into
part C referral, evaluation, and program
implementation processes. Other
commenters proposed that the
regulations retain the phrase ‘‘as soon as
possible,’’ but qualify it with a
maximum timeline. Commenters
proposed a variety of maximum
timelines, ranging from three business
days to ten business days. Discussion: We agree with the
commenters who expressed concern
that requiring primary referral sources
to refer an identified child to the part C
program ‘‘as soon as possible’’ could
introduce undue delays into the part C
referral process. Although enforcement
of the timeline in current
§ 303.321(d)(2)(ii), which requires
primary referral sources to refer a child
to the part C system within two working
days of the child’s identification, has
been a challenge for lead agencies,
requiring referrals to be made ‘‘as soon
as possible’’ may be more difficult to
enforce than the two-day timeline. We
believe it is appropriate to retain the
phrase ‘‘as soon as possible’’ because it
conveys a sense of urgency that referrals
be made to the part C program in a timely manner. Therefore, we have
retained the ‘‘as soon as possible’’
language and added a maximum
timeline to new § 303.303(a)(2)(i)
(proposed § 303.302(a)(2)(i)) to require
that a child be referred as soon as
possible, but in no case more than seven
days, after the child has been identified.
We realize that in some cases an earlier
referral may be reasonable, but
establishing a maximum timeline of
seven days provides more flexibility to
primary referral sources for making
referrals than the timeline under current
§ 303.321(d)(2)(ii). Moreover, the new
timeline requires primary referral
sources to refer children as soon as
possible.
Changes: We have revised new
§ 303.303(a)(2)(i) (proposed
§ 303.302(a)(2)(i)) to require primary
referral sources to refer a child to the
part C program as soon as possible, but
in no case more than seven calendar
days after the child has been identified. Comment: One commenter opposed
the requirement in proposed
§ 303.302(b) that the lead agency adopt
procedures requiring the referral of
specific at-risk children. The commenter
stated that this provision does not
reflect congressional intent to ensure
that these children are screened, either
by a designated primary referral source
or EIS provider, to determine whether a
referral for an evaluation for early
intervention services under part C of the
Act is warranted. Discussion: The language in new
§ 303.303(b) (proposed § 303.302(b)) is
based on the statutory language in
section 637(a)(6) of the Act, regarding
the referral of a child under the age of
3 who is involved in a substantiated
case of child abuse or neglect; or is
identified as affected by illegal
substance abuse, or withdrawal
symptoms resulting from prenatal drug
exposure. As noted by the commenter, lead
agencies may use a variety of methods
to ensure the identification of specific
at-risk infants and toddlers who may be
infants and toddlers with disabilities
eligible for services under part C of the
Act. Under new § 303.320 (proposed
§ 303.303), the lead agency may
establish screening procedures for
children under the age of three,
including at-risk infants and toddlers,
who have been referred to the part C
program. Primary referral sources also
may choose to conduct screenings of at-
risk infants and toddlers prior to
referring a child to the part C program
under new § 303.303 (proposed
§ 303.302). If a primary referral source
conducts a screening under the
supervision of the lead agency in order
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60189 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
to determine if a child is suspected of
having a disability, such screening
procedures must meet the requirements
in new § 303.320 (proposed § 303.303).
The lead agency may use interagency
agreements or other methods to
coordinate with primary referral
sources, such as the State agency that
administers the Child Abuse Prevention
and Treatment Act (CAPTA), to conduct
child find and ensure identification of
at-risk infants and toddlers who may be
eligible for services under part C of the
Act. The screening procedures in new
§ 303.320 (proposed § 303.303) are
consistent with section 637(a)(6) of the
Act and the policy, reflected in the
legislative history cited by the
commenter, that not every child referred
to the part C program must be evaluated.
Therefore, we decline to revise the
regulations as requested by the
commenter. Changes: None.
Comment: One commenter requested
clarification of the scope of the phrase
‘‘affected by illegal substance abuse’’ in
new § 303.303(b) (proposed
§ 303.302(b)). Specifically, the
commenter asked who must be referred
for early intervention services under
this provision. Discussion: The language ‘‘affected by
illegal substance abuse’’ in new
§ 303.303(b) (proposed § 303.302(b)) is
from section 637(a)(6)(B) of the Act,
which requires children who are
‘‘affected by illegal substance abuse’’ to
be referred to the part C program. The
policy for requiring the referral of
children under the age of three who
have been directly affected by illegal
substance abuse is that there is a
likelihood that these children may
experience developmental delays and
thus be eligible for early intervention
services under part C of the Act. We
have clarified the phrase ‘‘affected by
illegal substance abuse’’ by adding the
term ‘‘directly’’ because we agree that
the statutory language is vague. This
change is consistent with our addition
of the term ‘‘directly’’ in § 303.211(b)(7)
regarding referral of a child under the
age of three who directly experiences a
substantiated case of trauma due to
exposure to family violence. Changes: We have added the term
‘‘directly’’ before the words ‘‘affected by
illegal substance abuse’’ in new
§ 303.303(b)(2) (proposed
§ 303.302(b)(2)). Comment: Some commenters
requested that the Department mandate
that child find systems provide for the
referrals of children under the age of
three who have been abandoned;
affected by alcohol abuse, including
prenatal alcohol exposure; or exposed to family violence or dangerous levels of
lead paint. At a minimum, these
commenters recommended that these
regulations include these children as
examples of children who should be
referred to the part C program.
Discussion: Section 637(a) of the Act
only requires the referral for early
intervention services of a child under
the age of three who is involved in a
substantiated case of child abuse or
neglect or is identified as affected by
illegal substance abuse, or withdrawal
symptoms resulting from prenatal drug
exposure. While not required under the
Act, a State may choose to require the
referral for evaluation of the children
identified by the commenter (i.e., those
who have been abandoned, affected by
alcohol abuse, including prenatal
alcohol exposure; or exposed to family
violence or dangerous levels of lead
paint). However, we do not wish to limit
a State’s flexibility to assess the unique
needs in the State, and identify
accordingly, other subgroups that may
be determined to be at-risk and require
a referral for evaluation. Thus, we
decline to revise the regulations as
requested by the commenter. Changes: None.
Comment: A few commenters
opposed new § 303.303(b)(1) (proposed
§ 303.302(b)(1)), which requires the
referral of a child under the age of three
who is involved in a substantiated case
of child abuse or neglect. One
commenter stated that this requirement
is vague and inconsistent with the
explanation provided in the preamble to
the NPRM that, under this section and
consistent with CAPTA requirements, a
referral to the part C program would
only be for the child who is the subject
of the substantiated proceeding. The
commenters requested that new
§ 303.303(b)(1) (proposed
§ 303.302(b)(1)) clarify that the referral
requirements in that section would not
apply, for example, to a sibling (under
the age of three) of a child who had been
the subject of a substantiated case of
child abuse or neglect unless that
sibling also had been the subject of a
substantiated case of child abuse or
neglect. Another commenter expressed
concern that Federal funding is
insufficient to address the potential
increase in referrals of children under
CAPTA. Discussion: We agree with the
commenters that the language ‘‘involved
in a substantiated case of child abuse or
neglect’’ in section 637(a)(6)(A) and new
§ 303.303(b) (proposed § 303.302(b)(1))
is vague. This provision is consistent
with 42 U.S.C. 5106a of CAPTA, which
was amended in June 2003 to require
States receiving CAPTA funds to have policies regarding the referral to the part
C program of children under the age of
three who were the subject of a
substantiated case of child abuse or
neglect. The Department consulted with
the U.S. Department of Health and
Human Services (HHS), which
administers CAPTA, and determined
that our interpretation of this provision
in section 637(a)(6)(A) of the Act is
consistent with HHS’s view that neither
part C of the Act nor CAPTA requires
the referral of a child other than a child
who is the subject of a proceeding
resulting in a substantiated case of child
abuse or neglect. For this reason, we
have revised the regulatory language in
new § 303.303(b)(1) (proposed
§ 303.302(b)(1)) to refer to a child under
the age of three who ‘‘is the subject’’ of
a substantiated case of child abuse or
neglect. Additionally, we do not
interpret the statutory language or new
§ 303.303(b)(1) (proposed
§ 303.302(b)(1)) to require a sibling
(under the age of three) to be referred or
screened unless that sibling is a child
under the age of three who also has been
the subject of a substantiated case of
child abuse or neglect. Given that we
have narrowed the scope of children to
be referred to the part C program under
new § 303.303(b)(1) (proposed
§ 303.302(b)), the potential burden is
decreased to States, which may
currently receive referrals of all children
(such as a sibling or step-sibling) who
are involved in a substantiated case of
child abuse or neglect.
Changes: The phrase ‘‘involved in’’ in
new § 303.303(b)(1) (proposed
§ 303.302(b)(1)) has been changed to
‘‘the subject of.’’ Comment: One commenter noted,
with respect to new § 303.303(b)(2)
(proposed § 303.302(b)(2)), that section
106(b)(2)(A)(xxii) of CAPTA does not
require referral to part C services of
children under the age of three who are
affected by illegal substance abuse or
withdrawal symptoms resulting from
prenatal drug exposure. This commenter
requested that the Department clarify
this fact in the preamble to these
regulations. Discussion: Section 303.303(b)(2)
reflects the requirement in section
637(a)(6)(B) of the Act that each State’s
part C application include policies and
procedures requiring the referral for
early intervention services of a child
under the age of three who is identified
as affected by illegal substance abuse or
withdrawal symptoms resulting from
prenatal drug exposure. Section
106(b)(2)(A)(xxii) of CAPTA, however,
requires that each State that receives
CAPTA funds assure that it has policies
and procedures (including appropriate
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60190 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
referrals to child protection service
systems and for other appropriate
services) to address the needs of infants
born and identified as being affected by
illegal substance abuse or withdrawal
symptoms resulting from prenatal drug
exposure. Thus, while the language of
CAPTA differs from the language of
section 637(a)(6)(B) of the Act,
§ 303.303(b)(2) reflects the appropriate
requirement under the Act.
Changes: None.
Comment: One commenter
recommended clarifying that the list of
primary referral sources in new
§ 303.303(c) (proposed § 303.302(c)) is
not an inclusive list and that a lead
agency may include other primary
referral sources in its child find system.
Additionally, two commenters
recommended adding McKinney-Vento
‘‘local educational agency liaisons,’’ as
defined in 42 U.S.C. 11432(g)(6), as
primary referral sources along with
LEAs and schools in new § 303.303(c)(5)
(proposed § 303.302(c)(5)). Discussion: We agree with the
commenter that new § 303.303(c)
(proposed § 303.302(c)) is intended to be
a non-exhaustive list of primary referral
sources and that a lead agency may
include other primary referral sources in
its child find system. The term include,
as defined in § 303.18 and used in the
introductory text in new § 303.303(c)
(proposed § 303.302(c)), means that the
items named are not all of the possible
items that are covered, whether like or
unlike the ones named. We decline to add McKinney-Vento
local educational agency liaisons, as
defined in 42 U.S.C. 11432(g)(6), to new
§ 303.303(c)(5) (proposed
§ 303.302(c)(5)), as requested, because
these liaisons work with LEAs and
school-age children—not children under
the age of three—and, therefore,
coordination with these liaisons is not
required for programs under part C of
the Act. Nothing in the Act or these
regulations would preclude a lead
agency from coordinating with the
McKinney-Vento local educational
agency liaisons, as defined in 42 U.S.C.
11432(g)(6), if it determines such
coordination is appropriate. Changes: None.
Comment: One commenter
recommended changing the reference to
day care programs in new
§ 303.303(c)(4) (proposed
§ 303.302(c)(4)) to child care and early
learning programs. Discussion: We agree that day care
should be changed to child care because
this term reflects the current
terminology of the field. We also agree
that early learning programs should be
included in the list of primary referral sources. While the list in new
§ 303.303(c) (proposed § 303.302(c))
includes schools, some early learning
programs, such as Early Head Start, may
not always be included in this category.
To ensure all early learning programs
are included as referral sources we have
added early learning programs to new
§ 303.303(c) (proposed § 303.302(c)).
Changes: We have changed the term
‘‘day care programs’’ to ‘‘child care
programs’’ and added ‘‘early learning
programs’’ in new § 303.303(c)(4)
(proposed § 303.302(c)(4)). Comment: None.
Discussion: To clarify that primary
referral sources may include not only
public health facilities and other social
service agencies, but also public health
agencies that are neither public health
facilities nor social service agencies, we
have added a reference to public health
agencies in new § 303.303(c)(7)
(proposed § 303.302(c)(7)). For example,
other public health or social service
agencies may include the Maternal,
Infant, and Early Childhood Home
Visiting Program, under Title V of the
Social Security Act, as amended, or the
Early Hearing Detection and
Intervention (EHDI) systems
administered by the Centers for Disease
Control. Changes: We have added the phrase
‘‘public health or’’ before the words
‘‘social service agencies’’ in new
§ 303.303(c)(7) (proposed
§ 303.302(c)(7)).
Forty-Five Day Timelines (New
§ 303.310) (Proposed § 303.320(e))
Comment: We received a large
number of comments, questions, and
recommendations regarding the 45-day
timeline requirement in proposed
§ 303.320(e) that lead agencies complete
the initial evaluation, the initial
assessments, and the initial IFSP
meeting within 45 days from parental
consent for the initial evaluation. Many commenters supported
proposed § 303.320(e), which stated that
the evaluation, assessment, and initial
IFSP meeting must be completed within
45 days from the date the lead agency
obtains parental consent for the child’s
evaluation. These commenters preferred
this timeline to the 45-day timeline in
current § 303.322(e), which commences
not on the date the lead agency obtains
parental consent, but rather on the date
it receives the referral of the child.
These commenters argued that, given
the complexity of the post-referral
process, adding more time to the period
between referral and the initial IFSP
meeting was appropriate. A few commenters recommended
that, if the Department adopted proposed § 303.320(e), the Department
should add a separate timeline for the
time period between referral and when
the lead agency must obtain parental
consent and suggested timelines for this
period ranging from 2 to 30 days or ‘‘as
soon as possible.’’
Many other commenters opposed the
45-day timeline in proposed
§ 303.320(e). These commenters
expressed concern that having the 45-
day timeline triggered by the date the
lead agency obtains parental consent,
rather than the date the lead agency
receives the child’s referral, could result
in significant delays in getting infants
and toddlers with disabilities the early
intervention services they need. These
commenters argued that proposed
§ 303.320(e)(ii), which stated that lead
agencies must obtain parental consent
as soon as possible once a child is
referred to a lead agency, would be an
inadequate protection if adopted
because it would allow an
undetermined and unregulated period
of time between the child’s referral and
parental consent, and could delay the
completion of initial evaluations, initial
assessments, and initial IFSP meetings.
These commenters expressed concern
that proposed § 303.320(e) would result
in less accountability for lead agencies
because, under that provision, the lead
agencies could control—to a large
extent—when they obtained parental
consent for evaluation and thus when
the 45-day timeline would commence. These commenters further argued that
the Department should not adopt the
timeline in proposed § 303.320(e) and
that it should instead retain the timeline
reflected in current § 303.322(e), which
requires the public agency to complete
the evaluation and assessment activities
and hold an IFSP meeting within 45
days from the date the public agency
receives the child’s referral. For these
commenters, beginning the 45-day
timeline from the date the public agency
receives the child’s referral is preferable
because it promotes accountability for
lead agencies; the triggering event for
the timeline is something outside of a
lead agency’s control. Moreover,
commenters argued that beginning the
45-day timeline from the date of referral
will help ensure that children receive
services within a shorter timeframe.
Some of the commenters that supported
triggering the required timeline from the
date of referral recommended that the
length of the timeline be changed; they
suggested alternative timelines, ranging
from 30 days from referral to 75 days
from referral. Finally, a few commenters
recommended that these regulations not
include any timeline. These
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commenters argued that each State
should have the flexibility to establish
its own timeline to complete the post-
referral activities through the initial
IFSP meeting; they argued that this
flexibility would be similar to the
flexibility offered in the evaluation
timeline under 34 CFR 300.301(c)(1)(ii)
to conduct an evaluation to determine
eligibility for the part B program.
Discussion: After much review and
careful consideration of the many and
divergent opinions on the 45-day
timeline, we have determined that it is
appropriate to retain in new § 303.310(a)
the 45-day timeline from the date of the
child’s referral as reflected in current
§ 303.321(e), but to provide for limited
exceptions when the 45-day timeline
will not apply. Data from Federal fiscal
year (FFY) 2006 State part C SPP/APRs
indicate that many States have made
significant progress toward meeting the
current 45-day timeline requirement.
The Department’s position is that
maintaining this standard in new
§ 303.310(a)—combined with the
flexibility offered by the two exceptions
incorporated in new § 303.310(b)—will
help States continue to ensure timely
initial evaluations, initial assessments,
and initial IFSP meetings when children
are referred to the part C program
without unduly burdening lead agencies
and EIS providers. We believe that having the 45-day
timeline in new § 303.310(a) commence
on the date of referral, rather than on the
date the lead agency or EIS provider
obtains parental consent for the initial
evaluation, ensures accountability,
consistency, and predictability, and it is
easier for States and parents to
implement and track. More importantly,
we are persuaded that this timeline will
result in fewer delays in infants and
toddlers with disabilities receiving early
intervention services as quickly as
possible after being referred. For these
reasons, we have incorporated the 45-
day timeline, commencing from referral,
in new § 303.310. For clarity, we have
revised the language in this section to
ensure that the timeline applies to both
lead agencies and EIS providers because
EIS providers as well as lead agencies
implement these requirements and
conduct initial evaluations, initial
assessments, and initial IFSP meetings. As we noted in the NPRM, however,
we fully appreciate that a lead agency or
EIS provider may not be able to comply
with the 45-day timeline because of
exceptional family circumstances that
are beyond its control. For example, as
we noted in the NPRM, a lead agency or
EIS provider cannot meet the 45-day
timeline from the date of referral
without parental consent for initial evaluations and initial assessments.
Moreover, delays in obtaining parental
consent may drastically reduce the time
available for the lead agency or EIS
provider to perform the initial
evaluation and initial assessments and
prepare for the initial IFSP meeting.
Rather than attempting to address these
concerns by commencing the 45-day
timeline from the date the lead agency
or EIS provider obtains parental
consent, it is more appropriate to
address these concerns by providing for
limited exceptions in new § 303.310(b)
to clarify when the 45-day timeline in
new § 303.310(a) would not apply.
We have described in new
§ 303.310(b) two specific circumstances
when the 45-day timeline would not
apply. First, as noted in new
§ 303.310(b)(1), there may be periods of
time when the child or parent is
unavailable to complete the screening, if
applicable; the initial evaluation; the
initial assessment of the child; the
initial assessment of the family; or the
initial IFSP meeting due to exceptional
family circumstances that are
documented in the child’s early
intervention records. To clarify that it is
only the unavailability of the child or
parent (and not other family members)
that determines the availability of this
exception, we have added new
§ 303.310(d) to ensure that the family
assessment is completed within the 45-
day timeline, if the parent concurs, as
long as the parent is available. The second exception to the 45-day
timeline is set forth in new
§ 303.310(b)(2), which provides that if
the parent has not provided consent for
the screening (if the State has adopted
a policy to conduct screenings and
elects to conduct a screening of that
child), initial evaluation, or initial
assessment of the child despite
documented, repeated attempts by the
lead agency or EIS provider to obtain
parental consent, then the 45-day
timeline would not apply. We have not
included the family assessment or the
initial IFSP meeting in this second
exception because, while the family
assessment is voluntary on the part of
any family member who participates in
it and the initial IFSP meeting must be
scheduled at a time convenient to the
family, there are no express written
consent requirements for conducting the
family assessment and initial IFSP
meeting. To ensure that these exceptions are
not absolute, we have added a new
requirement in § 303.310(c) to clarify
that the lead agency or EIS provider
must complete the screening, if
applicable; initial evaluation; initial
assessments; and initial IFSP meeting as soon as possible after the circumstances
described in new § 303.310(b) no longer
exist or parental consent is obtained. We
believe that the availability of the two
limited exceptions to the 45-day
timeline in new § 303.310(b) creates
flexibility and reduces burdens for lead
agencies and EIS providers. Coupling
these exceptions with a 45-day timeline
commencing on the date of the child’s
referral to the part C program in new
§ 303.310(a) creates a clear and
enforceable timeline that ensures
accountability for timely identification,
evaluations, assessments, and IFSP
meetings for infants and toddlers with
disabilities.
Additionally, to further protect
children affected by circumstances
described in new § 303.310(b)(1) and
(b)(2), we have added new
§ 303.310(c)(3) to clarify that the lead
agency must have procedures to ensure
that the lead agency or EIS provider
develop and implement an interim IFSP
to the extent appropriate and consistent
with § 303.345 in the event of the
circumstances described in § 303.310(b). With regard to the comments
recommending that we lengthen or
remove the 45-day timeline in new
§ 303.310(a) (proposed § 303.320(e)), we
decline to do so because lengthening or
removing the timeline would not create
the same level of accountability for
ensuring timely evaluations and
assessments and IFSP development for
infants and toddlers with disabilities.
Given the rapid developmental changes
in this age group of children, it is
essential that lead agencies and EIS
providers evaluate, assess, and provide
early intervention services to those in
need as soon as possible. We also
decline to shorten the 45-day timeline,
as requested by some commenters,
because we are not convinced that a
shortened timeline would be feasible for
lead agencies and EIS providers to carry
out their obligations under subpart D of
these regulations. Finally, regarding the request to
incorporate in these regulations a
timeline within which a lead agency or
EIS provider must obtain parental
consent following a child’s referral to
the part C program, establishing this
separate timeline is unnecessary
because the Department has adopted a
45-day timeline that runs from the date
of referral, not the date parental consent
is obtained. Changes: We have redesignated
proposed § 303.320(e) as new
§ 303.310(a) and revised it to require
that, within 45 days after the lead
agency or EIS provider receives a
referral, the screening (if the State has
adopted a policy and elects, and the
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parent consents, to conduct a screening
of a child), initial evaluation, initial
assessments, and initial IFSP meeting
must be conducted. We have deleted the
language from proposed
§ 303.320(e)(1)(ii) regarding the lead
agency obtaining parental consent as
soon as possible after receiving the
child’s referral.
We have clarified in § 303.310(a) that
the 45-day timeline applies to the
screening conducted under new
§ 303.320, if applicable; initial
evaluation (described in new
§ 303.321(a)(2)(i) as the child’s
evaluation to determine his or her initial
eligibility under this part), initial
assessments of the child and family
under § 303.321(a)(2)(ii); and initial
IFSP meeting under § 303.342. We also have added new § 303.310(b)
to identify two limited exceptions to the
45-day timeline. These exceptions cover
periods of time when (i) the child or
parent is unavailable to complete the
screening, if applicable; the initial
evaluation; the initial assessments of the
child and family; or the initial IFSP
meeting due to exceptional family
circumstances that are documented in
the child’s early intervention records; or
(ii) the parent has not provided consent
for the screening, if applicable, the
initial evaluation, or the initial
assessment of the child, despite
documented, repeated attempts by the
lead agency or EIS provider to obtain
parental consent. We have added new § 303.310(c) to
clarify that the lead agency must have
procedures to ensure that the lead
agency or EIS provider: (1) Documents
the exceptional circumstances or
repeated attempts by the lead agency or
EIS provider to obtain parental consent,
(2) completes the screening, if
applicable, the initial evaluation, the
initial assessments of the child and
family, and the initial IFSP meeting as
soon as possible after the documented
exceptional family circumstances no
longer exist or parental consent is
obtained for the screening, if applicable,
initial evaluation, and initial assessment
of the child, and (3) develop and
implement an interim IFSP to the extent
appropriate and consistent with
§ 303.345. Finally, we have added new
§ 303.310(d) to ensure that the family
assessment is completed within the 45-
day timeline, if the parent concurs, as
long as the parent is available. Comment: Two commenters
recommended that, rather than changing
the triggering event for the 45-day
timeline from referral to parental
consent, the Department should use its
authority under section 618 of the Act to collect information related to the
reasons for, and the scope of problems
related to, a lead agency’s failure to
meet the 45-day timeline requirement. A
few commenters recommended that new
§ 303.310 (proposed § 303.320(e))
require States to report on the timelines
in new § 303.310 (proposed
§ 303.320(e)) as part of the State’s
application.
Discussion: As previously discussed,
we have retained the current 45-day
timeline from the date of a child’s
referral to the part C program for lead
agencies and EIS providers to complete
the child’s initial evaluation, initial
assessment, and initial IFSP meeting.
Concerning commenters’ requests that
this timeline be reported in each State’s
application, States already report to the
Department data on implementing the
45-day timeline and reasons for any
delay in meeting this timeline. One of
the indicators that each State is required
to report on in its SPP/APR is
compliance with this 45-day timeline.
Each State reports these data annually to
the Department. Pursuant to sections
616(d) and 642 of the Act, the
Department uses these and other data to
determine whether the State is meeting
the requirements of part C of the Act
and these regulations. Given that the
Department already collects these data,
it is not necessary to incorporate an
additional data collection requirement
in the application or elsewhere in these
regulations. Changes: None.
Comment: Some commenters
recommended that a specific provision
be added to new § 303.310(b) (proposed
§ 303.320(e)) to permit a lead agency to
waive the 45-day timeline requirement
if the lead agency or EIS provider made
good faith efforts to conduct the initial
evaluation, initial assessments, and
initial IFSP meeting but the child or
family member was unavailable (e.g.,
due to child or parent illness, work or
family vacation scheduling conflicts, or
other parent-requested considerations)
or the lead agency or EIS provider made
good faith efforts to obtain parental
consent for the initial evaluation and
initial assessment but was unable to do
so within the 45-day timeline. Discussion: As discussed earlier in
this preamble, we agree that exceptional
family circumstances may make it
difficult or impossible for the lead
agency or EIS provider to meet the 45-
day timeline in new § 303.310
(proposed § 303.320(e)). However, we
do not believe an absolute waiver of the
timeline is appropriate. Instead, to
provide flexibility and ensure
accountability, we have adopted, in new
§ 303.310(b), two limited exceptions to the 45-day timeline, one of which
directly addresses the commenters’
concern about exceptional family
circumstances.
Specifically, new § 303.310(b) states
that the 45-day timeline does not apply
when: (1) The child or parent is
unavailable to complete the screening, if
applicable; the initial evaluation; the
initial assessments of the child and
family; or the initial IFSP meeting due
to exceptional family circumstances that
are documented in the child’s early
intervention records; or (2) the parent
has not provided consent for the
screening, if the State has adopted a
policy to conduct screenings and elects
to conduct a screening of that child;
initial evaluation; or initial assessment
of the child despite documented,
repeated attempts by the lead agency or
EIS provider to obtain parental consent. To ensure that these exceptions are
used appropriately, new § 303.310(c)
requires the lead agency to develop
procedures to ensure that exceptional
family circumstances or repeated
attempts by the lead agency or EIS
provider to obtain parental consent are
documented in the child’s early
intervention records. Moreover, to ensure that these
exceptions do not result in absolute
waivers of the 45-day timeline, new
§ 303.310(c)(2) and (c)(3) require that
the lead agency or EIS provider
complete the activities as soon as
possible after the basis for the
exceptions cease to exist, and develop
and implement an interim IFSP to the
extent appropriate and consistent with
§ 303.345. These two limited exceptions provide
States needed flexibility while ensuring
that, once parental consent is provided
for the screening, if applicable; initial
evaluation; and initial assessment of the
child; or the exceptional family
circumstances no longer exist, the lead
agency or EIS provider conduct the
screening, if applicable; initial
evaluation; initial assessments; and
initial IFSP meeting as soon as possible
to ensure the timely identification and
evaluation of infants and toddlers with
disabilities. Changes: As noted earlier in this
preamble, we have added new
§ 303.310(b) to identify two exceptions
to the 45-day timeline and added
§ 303.310(c) to clarify that the lead
agency must have procedures to ensure
that the lead agency or EIS provider: (i)
Documents exceptional circumstances
or repeated attempts by the lead agency
or EIS provider to obtain parental
consent, (ii) completes the screening, if
applicable; the initial evaluation; initial
assessments; and the initial IFSP
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60193 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
meeting as soon as possible after the
documented exceptional family
circumstances no longer exist or
parental consent is obtained, and (iii)
develop and implement an interim IFSP
if appropriate, consistent with
§ 303.345.
Screening Procedures (Optional) New
§ 303.320 (Proposed § 303.303)
Comment: None.
Discussion: Based on further review of
§ 303.320(a)(1) (proposed
§ 303.303(a)(1)), regarding screening
procedures, we have determined that
the words ‘‘when appropriate’’ are
unnecessary and potentially confusing.
Lead agencies always can adopt policies
for screening. If a State elects to adopt
screening policies and procedures, those
policies and procedures must specify
when screening of a particular child is
appropriate.
Changes: We have removed the words
‘‘when appropriate’’ from
§ 303.320(a)(1) (proposed
§ 303.303(a)(1)).
Comment: A significant number of
commenters requested additional
clarification regarding the screening
procedures in proposed § 303.303. Some
commenters opposed including
screening in these regulations stating
that they were concerned that children
for whom part C eligibility is not readily
or easily apparent may be denied an
evaluation and services if screening is
conducted.
Other commenters recommended that
proposed § 303.303(a)(3) be amended to
require that if the lead agency
determines, based on screening and
other available information, that the
child is not suspected of having a
disability, the lead agency must ensure
that notice is provided to the parent
under § 303.421, including notice of the
right to request and receive an
evaluation at any time. Additionally, the
commenters requested that this notice
include a description of the difference
between a ‘‘screening,’’ conducted
pursuant to proposed § 303.303, and an
‘‘evaluation,’’ as required in proposed
§ 303.320.
Other commenters suggested that if
the lead agency decides the child is not
suspected of having a disability, the
lead agency should be required to
present this decision and the reasons for
the decision to a parent in writing, but
should not be required to provide this
information through prior written notice
under § 303.421. These commenters
further recommended that the lead
agency be required to offer an
evaluation only after that decision is
conveyed to the parent, and the parent disagrees with that determination and
requests an evaluation.
One commenter stated that if a parent
disagrees with a decision regarding a
referral for evaluation, the parent should
be entitled to appeal that decision using
the due process procedures in subpart E
of these regulations, but the lead agency
should not be required to evaluate the
child. A few commenters requested that
parents be informed verbally and in
writing, in their native language or
preferred method of communication, of
their right to request a full evaluation of
their child, including their right to
bypass screening and go straight to an
evaluation. Discussion: New § 303.320 (proposed
§ 303.303) has been restructured, and a
few provisions have been added, to
address the commenters’ concerns
regarding screenings and a parent’s right
to request an evaluation. We have added
new § 303.320(a)(1)(i) and (a)(1)(ii),
stating that if the lead agency or EIS
provider proposes to screen a child, it
must provide the parent notice under
§ 303.421 of its intent to screen the child
to determine whether the child is
suspected of having a disability and
obtain parental consent as required in
§ 303.420(a)(1) before administering the
screening. That notice must explain the
parent’s right to request an evaluation
under new § 303.321 (proposed
§ 303.320) at any time during the
screening process. We also have revised new
§ 303.320(a)(2)(ii) (proposed
§ 303.303(a)(3)) to specify that when the
lead agency provides notice to a parent
under § 303.421 that, based on the
screening or other available information,
a child is not suspected of having a
disability, the notice must describe the
parent’s right to request an evaluation. Additionally, in new § 303.320(a)(3),
we have retained the provision in
proposed § 303.303(a)(4) to allow
parents to request and consent to an
evaluation when the lead agency or EIS
provider determines that the child is not
suspected of having a disability. We
have revised this section to specify that
parents may request, and consent to, an
evaluation at any time during the
screening process. This ensures that an
evaluation may still be requested by the
parent of a child for whom part C
eligibility is not readily or easily
apparent. With regard to the comment that the
notice provided to parents when the
child is not suspected of having a
disability should include an explanation
of the differences between screening
and evaluation, it is not necessary to
add that language to new § 303.320(a)(2)(ii) (proposed
§ 303.303(a)(3)) because this section
requires that prior written notice
pursuant to § 303.421 be provided to a
parent when a child is not suspected of
having a disability, and § 303.421(b)
mandates that prior written notice be in
sufficient detail to inform the parents
about the action that is being proposed
or refused. Therefore, we expect that the
procedures involved in screening and
evaluation will be explained to the
parents through the prior written notice.
It is the Department’s position that
presenting a parent with a written
decision that the child is not suspected
of having a disability and the reasons for
the decision in a manner that meets the
prior written notice requirements in
§ 303.421(b) would ensure that parents
are fully informed of their rights. We
believe fully informing parents of their
rights is a critical aspect of enhancing
the capacity of families to meet the
special needs of their infants and
toddlers with disabilities, pursuant to
section 631 of the Act and, thus, we
have required lead agencies to ensure
that parents are provided with prior
written notice of any determination that
their child is not suspected of having a
disability. A parent has the right to request an
evaluation if the screening or other
available information indicates that the
child is not suspected of having a
disability, instead of having to utilize
the due process procedures in subpart E
of these regulations to appeal that
decision. The Department’s experience
indicates that parents often can identify
or suspect developmental delays in their
children that may not be identified
through a screening. For this reason,
parents should be able to request and
receive an evaluation without the
potential delay and expense of a due
process hearing. We believe this
approach facilitates a comprehensive
child find system tasked with
identifying all infants and toddlers with
disabilities. Additionally, because a
child is only eligible for part C services
for a short period of time and providing
services earlier rather than later can
enhance the development of infants and
toddlers with disabilities, time is of the
essence with regard to identifying a
child as an infant or toddler with a
disability. Thus, it is important that
parents retain the right to request an
evaluation at any time during the
screening process. With regard to the comment that
notice of the right to request an
evaluation should be provided to the
parent verbally and in writing, in the
parent’s native language or preferred
method of communication, parental
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60194 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
notice of the right to request an
evaluation must meet all of the
requirements in § 303.421, including the
native language requirement. The
requirements in § 303.421 are discussed
further in the Analysis of Comments
and Changes section for subpart E of
these regulations. We believe that the
requirements in § 303.421 are
comprehensive and sufficient to provide
parents with an understanding of their
rights, specifically with regard to their
right to request an evaluation.
Changes: We have restructured this
section and added language to new
§ 303.320(a) (proposed § 303.303(a)) to
clarify that parents have an ongoing
right to request an evaluation before,
during, or after their child is screened.
Specifically, we have added a new
§ 303.320(a)(1)(i) and (a)(1)(ii), stating
that if the lead agency or EIS provider
proposes to screen a child, it must (i)
provide the parent notice under
§ 303.421 of its intent to screen the child
to identify whether the child is
suspected of having a disability (and
include in the notice a description of
the parent’s right to request an
evaluation under § 303.321 at any time
during the screening process) and (ii)
obtain parental consent as required in
§ 303.420(a)(1) before administering the
screening. We also have revised new
§ 303.320(a)(2)(ii) (proposed
§ 303.303(a)(3)) to specify that when the
lead agency provides notice to a parent
under § 303.421 that, based on the
screening or other available information,
a child is not suspected of having a
disability, the notice must describe the
parent’s right to request an evaluation.
We have added to new § 303.320(a)(3)
(proposed § 303.303(a)(4)) a provision
clarifying that parents may request an
evaluation at any time during the
screening process.
Comment: A few commenters
expressed concern that the amount of
time used for screening could increase
the time between referral and the
initiation of services. The commenters
requested that a timeline be imposed so
that eligibility determinations would
not be delayed. Some commenters
requested clarifying that the 45-day
timeline in new § 303.310 (proposed
§ 303.320(e)) starts prior to the
screening, not after. Additional
commenters expressed concern that
while comprehensive statewide
screening efforts could enhance the
early identification of eligible children,
the regulations do not adequately
emphasize that screening efforts should
not be used to deny or delay an
eligibility determination from the lead
agency. Discussion:
The timeline outlined in
new § 303.310(a) (proposed
§ 303.320(e)) requires that any screening
under § 303.320, if applicable, be
completed within 45 days from the date
the lead agency or EIS provider receives
the referral of the child. Because
screening by the lead agency is optional
and is included in the 45-day timeline,
the use of screening is not expected to
cause a delay in determining a child’s
eligibility for services under part C of
the Act, but rather to assist the lead
agency and parent in determining
whether a child is suspected of having
a disability. With regard to the
commenters’ concern that the
regulations in this part do not
adequately emphasize that screening
efforts should not be used to deny an
eligibility determination, a parent has
the right, under new § 303.320(a)(3)
(proposed § 303.303), to request and
receive an evaluation at any time during
the screening process and must be
notified of this right, under new
§ 303.320(a)(1)(i), at the beginning of the
screening process. Therefore, the
regulations protect parents with regard
to eligibility determinations and
sufficiently address the commenters’
concern. Changes: As previously discussed in
response to comments on new § 303.310
(proposed § 303.320(e)), we have added
a reference to screening as an activity
that is subject to the 45-day timeline in
§ 303.310 (proposed § 303.320(e)). Comment: A few commenters
expressed concern that, under new
§ 303.320 (proposed § 303.303), lead
agencies may use the results of
screening procedures to determine
eligibility for early intervention services
and requested that these regulations
explicitly require a full evaluation be
conducted in order to determine
eligibility for services under part C of
the Act. Discussion: New § 303.320 makes
clear that the purpose of screening is to
determine if a child is suspected of
having a disability. If eligibility is to be
determined, new § 303.321 requires that
an evaluation (not screening) be used to
determine eligibility. We believe these
regulations are clear in their scope and
purpose and decline to make the change
requested by the commenters. Changes: None.
Comment: A significant number of
commenters requested additional
clarification regarding the procedures
that should be used to screen infants
and toddlers. These commenters
recommended that States should be
required to ensure that professionals
conducting the screening meet the
requirements that apply to EIS providers. Some commenters requested
that the regulations set a standard for
personnel conducting the screening.
Other commenters requested that States
be required to use one standardized
screening tool across the State in order
to eliminate differences in screening
procedures across jurisdictions.
Discussion: Proposed § 303.303(b)(2)
provided that screening procedures
include the administration of
appropriate instruments by qualified
personnel, who can assist in making the
identification outlined in new
§ 303.320(a). We have revised that
language, in new § 303.320(b)(2), to
indicate that personnel who conduct
screening of a child must be trained to
administer appropriate screening
instruments. We made this revision to
ensure that personnel, such as
paraprofessionals or other individuals
who are trained to administer a specific
screening instrument, may conduct
screenings. Concerning the request that we
require a State to use one standardized
screening tool across the State, it is the
Department’s position that requiring or
recommending the use of specific
measurement tools, including requiring
that a State use only one measurement
tool throughout the State, is not
appropriate because individual child
differences should be taken into account
when selecting appropriate instruments. Changes: We have deleted the
reference to ‘‘qualified personnel’’ in
new § 303.320(b)(2) (proposed
§ 303.303(b)(2)), and added a reference
to ‘‘personnel trained to administer
those instruments.’’ Comment: A few commenters
requested that language be included in
proposed § 303.303 to stipulate that
screening is not required for infants and
toddlers with established physical or
mental conditions. Discussion: Screening is intended to
be a tool to assist the lead agency and
EIS providers determine whether an
infant or toddler is suspected of having
a disability and is in need of an
evaluation. If a child has a diagnosed
physical or mental condition, an
evaluation or screening may not be
needed to determine eligibility. We
specifically provide in new
§ 303.321(a)(3)(i) that a child’s medical
and other records may be used to
establish eligibility (without conducting
an evaluation of the child) under this
part if those records indicate that the
child is an infant or toddler with a
disability in § 303.21, which includes
children with diagnosed conditions,
developmental delays, and, at the
State’s option, at-risk children. For
children with established diagnosed
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conditions, screening is not needed
because records establish that the child
is not only suspected of having a
disability, but in fact has a disability.
Changes: None.
Comment: A few commenters
requested that proposed § 303.303(a)(2)
be amended to provide that parents be
offered the option of an evaluation in
cases where the results of their child’s
screening indicate that the child is
suspected of having a disability as
opposed to requiring the lead agency to
evaluate the child. Discussion: We understand the
commenters’ concerns and did not
intend this provision to require
evaluations in all cases where the
results of a screening indicate that a
child may have a disability. To clarify
our intent, we have added language to
new § 303.320(a)(2) (proposed
§ 303.303(a)(2)) stating that if a parent
consents to screening and the screening
or other available information indicates
that the child is suspected of having a
disability, after notice is provided under
§ 303.421 and once parental consent is
obtained as required in § 303.420, an
evaluation and assessment of the child
must be conducted under new § 303.321
(proposed § 303.320). Changes: New § 303.320(a)(2)
(proposed § 303.303(a)(2)) has been
restructured to clarify that, after
screening, notice under § 303.421 and
parental consent are required before an
infant or toddler can be evaluated. Comment: A few commenters
recommended adding language to new
§ 303.320(a)(2)(ii) (proposed
§ 303.303(a)(3)) to require notification
by the lead agency to the caregivers of
infants and toddlers and the agencies
assigned to care for them when the lead
agency knows that the infant or toddler
is in foster care or is a ward of the State.
The commenters noted that, in these
situations, it is to the child’s advantage
to have relevant information given to
the caregiver and the agency responsible
for the child. Discussion: The definition of parent
in § 303.27 includes a biological or
adoptive parent of a child; a foster
parent, unless State law, regulations, or
contractual obligations with a State or
local entity prohibit a foster parent from
acting as a parent; a guardian generally
authorized to act as the child’s parent,
or authorized to make early
intervention, educational, health, or
developmental decisions for the child
(but not the State if the child is a ward
of the State); an individual acting in the
place of a biological or adoptive parent
(including a grandparent, stepparent, or
other relative) with whom the child
lives, or an individual who is legally responsible for the child’s welfare; or a
surrogate parent who has been
appointed in accordance with § 303.422
or section 639(a)(5) of the Act.
For a child in foster care who has a
foster parent that meets the definition of
a parent in § 303.27, the child’s foster
parent must be notified, pursuant to
§ 303.421 and new § 303.320(a)(2)(ii)
(proposed § 303.303(a)(3)), if the child is
screened and not suspected of having a
disability.
For a child who is a ward of the State
(which includes a foster child who does
not have a foster parent that meets the
definition of a parent in § 303.27),
protections under § 303.422, regarding
surrogate parents, apply. Specifically,
each lead agency must ensure that the
rights of a child are protected when the
child is a ward of the State. The lead
agency must determine whether a child
needs a surrogate parent and if so,
assign a surrogate parent to the child. If
a ward of the State has a surrogate
parent, this parent must be notified,
pursuant to § 303.421 and new
§ 303.320(a)(2)(ii) (proposed
§ 303.303(a)(3)), if the child is screened
and not suspected of having a disability.
Therefore, it is the Department’s
position that further clarification is
unnecessary because the commenters’
concerns about notification for infants
and toddlers who are in foster care or
wards of the State are adequately
provided for under this part.
Changes: None.
Comment: A few commenters stated
that the requirements in new
§ 303.320(a)(3) (proposed
§ 303.303(a)(4)), which allow a parent to
request an evaluation even after the lead
agency determines, using its screening
procedures, that the child is not
suspected of having a disability, would
diminish the cost effectiveness of
screening.
Discussion: Screening under new
§ 303.320 (proposed § 303.303) is not
required under the Act; rather, it is an
option that a State may choose to
include as a part of its comprehensive
child find system. An evaluation under
new § 303.321 (proposed § 303.320)
entails more extensive requirements
than the screening under § 303.320
(proposed § 303.303) and, thus, could
yield more information about whether a
child is an infant or toddler with a
disability than a screening may. In light
of this and the fact that section 635(a)(5)
of the Act requires that each State’s
child find system ensures rigorous
standards for appropriately identifying
infants and toddlers with disabilities, it
is important that parents have the right
to request an evaluation if screening does not result in their child being
suspected of having a disability.
Changes: None.
Comment: Several commenters
recommended that the regulations
require re-screening every six months
until the age of three if, through the
screening process under new § 303.320
(proposed § 303.303), a child is not
suspected of having a disability. The
commenters noted that children grow
and change dramatically in their first
three years of life and that
developmental delays are often difficult
to recognize at a specific point in time.
Discussion: New § 303.302 (proposed
§ 303.301) provides that each State must
have a comprehensive child find system
that ensures that all infants and toddlers
with disabilities in the State who are
eligible for early intervention services
under this part (including children who
have been screened in the past and
those who have never been screened)
are identified, located, and evaluated.
This section includes specific
requirements to facilitate identification,
location, and evaluation of all of these
children.
For children who are screened and
not suspected of having a disability, all
of the general child find requirements in
new § 303.302 (proposed § 303.301)
apply and, in addition, the lead agency
or EIS provider must ensure that the
parent is provided notice under
§ 303.421, and that, pursuant to new
§ 303.320(a)(2)(ii) (proposed
§ 303.303(a)(3)), the notice describes the
parent’s right to request an evaluation.
These provisions provide sufficient
protection for children who are
screened and not suspected of having a
disability.
Further, a lead agency may adopt
specific screening procedures,
consistent with the requirements in new
§ 303.320 (proposed § 303.303). As part
of these procedures, a State could
mandate re-screening or other
protections for children who have been
screened but are not suspected of having
a disability. It is important for a lead
agency to have some flexibility in
determining how best to implement
screening in its State and, therefore, it
is the Department’s position that
mandating re-screening is not
appropriate.
Changes: None.
Comment: Two commenters requested
clarification as to why the phrase
‘‘except for parents’’ was included in
new § 303.320(b)(1) (proposed
§ 303.303(b)(1)), given that parents are a
vital source of information in
identifying whether a child is suspected
of having a disability.
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60196 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
Discussion: We agree that parents are
a valuable source of information in
determining whether a child is
suspected of having a disability.
Therefore, we have removed the
parenthetical in new § 303.320(b)(1)
(proposed § 303.303(b)(1)). Changes: The phrase ‘‘except for
parents’’ has been removed from new
§ 303.320(b)(1) (proposed
§ 303.303(b)(1)). Comment: None.
Discussion: To clarify that screening
may be conducted by the lead agency or
EIS provider, we have decided to use
the terms ‘‘lead agency’’ or ‘‘EIS
provider’’ in lieu of the reference to
‘‘public agency, early intervention
service provider, and designated
primary source’’ in new § 303.320(b)(1)
(proposed § 303.303(b)(1)). Changes: We have removed the words
‘‘public agency, early intervention
service provider, or designated primary
source’’ from new § 303.320(b)(1)
(proposed § 303.303(b)(1)) and replaced
them with the words ‘‘lead agency or
EIS provider.’’ Comment: A commenter
recommended strengthening the
language under new § 303.320(b)(2)
(proposed § 303.303(b)(2)) to clarify the
meaning of ‘‘appropriate instruments.’’
The commenter recommended that the
screening instruments administered
must have established validity and
reliability to use with children under
the age of three. A few commenters
requested that new § 303.320(b)
(proposed § 303.303(b)) require
screening instruments to be peer-
reviewed and research-based. One
commenter recommended including
reliable and valid parent-report
instruments as examples of screening
instruments in new § 303.320(b)(2)
(proposed § 303.303(b)(2)). Discussion: New § 303.320(b)(2)
(proposed § 303.303(b)(2)) requires the
administration of appropriate
instruments by personnel trained to
administer those instruments. Given
that screening instruments vary by
State—and often even within a State—
and the selection of screening
instruments is based on a variety of
factors, it is the Department’s position
that it is inappropriate for these
regulations to further specify the
screening instruments to be used. States
need the flexibility to identify which
screening instruments are used.
Screening instruments for children
under the age of three rely heavily on
parent reports. Thus, we do not believe
that it is necessary to clarify, or
appropriate to limit, the types of
screening instruments a lead agency
may use. Changes:
None.
Evaluation of the Child and Assessment
of the Child and Family (New § 303.321)
(Proposed § 303.320) Comment: Several commenters noted
that there were significant changes in
proposed § 303.320 that did not appear
to have a basis in the Act. Commenters
stated that changing the definitions of
evaluation and assessment procedures
at this point would have major
implications for State rules, policies,
procedures, professional development,
parent training, data systems, and State
monitoring systems. Discussion: The definitions of
evaluation and assessment in proposed
§ 303.320(a), (b), and (c) were not
substantively different from current
§ 303.322(b)(1) through (b)(2); instead,
the changes made in proposed § 303.320
were intended to clarify the current
requirements. However, because of the
concerns raised by some of the
commenters, we have revised the
definitions in new § 303.321(a)(2)
(proposed § 303.320(a), (b), and (c)) to
provide further clarification.
Specifically, we have clarified that
evaluation means the procedures used
by qualified personnel to determine a
child’s initial and continuing eligibility
under this part, consistent with the
definition of infant or toddler with a
disability in § 303.21. Also, we have
clarified that assessment means the
ongoing procedures used by qualified
personnel to identify a child’s unique
strengths and needs and the early
intervention services appropriate to
meet those needs throughout the period
of a child’s eligibility under this part
and includes the assessment of the
child, consistent with new
§ 303.321(c)(1) (proposed § 303.320(b))
and the assessment of the child’s family,
consistent with new § 303.321(c)(2)
(proposed § 303.320(c)). We have further clarified the
definition of assessments in new
§ 303.321(a)(1)(ii) to incorporate the
language from section 636(a)(1) and
(a)(2) of the Act, which requires each
statewide system to provide for each
eligible child: (1) A multidisciplinary
assessment of the unique strengths and
needs of the infant or toddler and the
identification of services appropriate to
meet those needs; and (2) A family-
directed assessment of the resources,
priorities, and concerns of the family
and the identification of the supports
and services necessary to enhance the
family’s capacity to meet the
developmental needs of the infant or
toddler. In making these revisions to the
definitions of evaluation and assessment,
we determined it was also
appropriate to clarify what is meant by
the terms ‘‘initial evaluation’’ and
‘‘initial assessment.’’ Other sections of
these regulations, particularly in the
context of the 45-day timeline reflected
in new § 303.310 (proposed
§ 303.320(e)), often refer to the initial
evaluation and the initial assessment.
For this reason, we have clarified in
new § 303.321(a)(2)(i) that the term
‘‘initial evaluation’’ refers to the child’s
evaluation to determine his or her initial
eligibility under this part. We have
clarified in new § 303.321(a)(2)(ii) that
the term ‘‘initial assessment’’ refers to
assessments of the child and the family
conducted prior to the child’s initial
IFSP meeting, both of which must be
conducted within the 45-day timeline
described in new § 303.310 (proposed
§ 303.320(e)), even if family members
other than the parent agree to
participate but are unavailable to
complete the family assessment. We do
not believe that these definitions are
new concepts under the part C program;
rather, we view them as clarifying the
terminology used so that the field can
more easily distinguish between
evaluations and assessments that occur
throughout a child’s time in the part C
program and the initial evaluation and
initial assessment that must be
completed, along with the initial IFSP
meeting, within 45 days after the child
is referred to the part C program. Changes: The definitions of
evaluation and assessment in new
§ 303.321(a)(2) (proposed § 303.320(a),
(b), and (c)) have been clarified to reflect
the language in section 636(a)(1) and
(a)(2) of the Act. We also have added
definitions of the terms initial
evaluation and initial assessment to this
section. Comment: A few commenters
requested clarification on the
distinction between an assessment and
an evaluation, as used in new
§ 303.321(a) (proposed § 303.320(a), (b),
and (c)). Discussion: We agree with the
commenters regarding the need for
clarification and, therefore, have revised
new § 303.321 (proposed § 303.320). An
evaluation, as defined in new
§ 303.321(a)(2)(i) (proposed
§ 303.320(a)(2)(i)), means the procedures
used by qualified personnel to
determine a child’s initial and
continuing eligibility under this part,
and can include, pursuant to new
§ 303.321(b) (proposed § 303.320(a)(2)),
activities such as administering an
evaluation instrument; taking the child’s
history (including interviewing the
parent); identifying the child’s level of
functioning in each of the
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60197 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
developmental areas in § 303.21(a)(1);
gathering information from other
sources such as family members, other
care-givers, medical providers, social
workers, and educators, if necessary, to
understand the full scope of the child’s
unique strengths and needs; and
reviewing medical, educational, or other
records.
We recognize that the three separate
references to assessments in proposed
§ 303.320(a) (assessment of the child,
assessment of the family, and
assessment of service needs) may have
caused confusion. To facilitate
understanding, we have defined the
term assessment, in new
§ 303.321(a)(2)(ii), to mean the ongoing
procedures used by qualified personnel
to identify the child’s unique strengths
and needs and the early intervention
services appropriate to meet those needs
throughout the period of a child’s
eligibility under this part and to include
the assessment of the child and the
assessment of the child’s family. We also have removed all general
references to assessment of service
needs as used in the proposed
regulations. These changes are further
discussed in the Analysis of Comments
and Changes section addressing
comments received on proposed
§ 303.320(d). Changes: We have reorganized and
revised new § 303.321(a) (proposed
§ 303.320(a), (b), and (c)) to set out clear
definitions of the terms evaluation and
assessment. Comment: One commenter requested
that the final regulations clarify that the
assessment in new § 303.321(a)(1)(ii)
(proposed § 303.320(a)(1)(ii)) is a
‘‘developmental’’ assessment of the
child. Discussion: The assessment of the
child includes the identification of the
child’s needs in each of the
developmental areas in § 303.21(a)(1),
the definition of an infant or toddler
with a disability; however, the
assessment also includes identifying the
unique strengths and needs of the child
and the early intervention services
appropriate to meet those needs;
reviewing the results of an evaluation;
and conducting personal observations of
the child. Therefore, it is the
Department’s position that limiting the
assessment of the child to a
developmental assessment is not
appropriate. Changes: None.
Comment: Some commenters
expressed concern about the language in
new § 303.321(a)(1)(ii) (proposed
§ 303.320(a)(1)(iii)), regarding the
assessment of the family. One
commenter stated that the requirement to conduct a family assessment before
determining an infant or toddler’s
eligibility presents an undue and
unnecessary burden on State part C
programs. The commenter
recommended that language be added to
the regulations to ensure that family
assessments do not have to be
conducted unless an infant or toddler is
determined to be eligible for early
intervention services. Two commenters
requested that we revise this section to
clarify the assessments that must be
conducted as part of an initial
evaluation of a child referred under this
part.
Discussion: An assessment of a child
and family as defined in new
§ 303.321(a)(1), (a)(2)(ii), (a)(3), (a)(4),
and (c) (proposed § 303.320(a)(1),
(a)(2)(iii), (a)(3)(b), and (c)) is only
required if the child is determined to be
eligible to receive services under this
part. We have added language to new
§ 303.321(a)(1)(ii) (proposed
§ 303.320(a)(1)(ii) and (a)(1)(iii)) to make
this clear. Changes: We have revised the
introduction to new § 303.321(a)(1)(ii)
(proposed § 303.320(a)(1)(ii) and
(a)(1)(iii)) to read ‘‘If the child is
determined eligible as an infant or
toddler with a disability as defined in
§ 303.21.’’ Comment: Several commenters
expressed concern that proposed
§ 303.320(a)(1)(iv) may be inconsistent
with section 636(a) and (d)(4) of the Act
with regard to when service needs are
identified. These commenters were
concerned that determining service
needs prior to the IFSP meeting could
preempt important decisions that need
to be made as part of the IFSP process.
One commenter recommended that the
language in current § 303.322(c)(3)(iii),
which requires the ‘‘assessment of the
unique needs of the child * * *
including the identification of services
appropriate to meet those needs’’ be
retained instead. Several commenters
recommended that we replace the term
‘‘service needs’’ in proposed
§ 303.320(a)(1)(iv) with the phrase
‘‘unique needs in each of the
developmental areas,’’ which is used in
current § 303.322(c)(3)(iii). Other
commenters did not support the
assessment of service needs as part of
the evaluation process, because this
assessment typically is part of the IFSP
process, completed after the IFSP Team
has determined child and family
outcomes. Discussion: Based on commenters’
requests for clarification regarding what
must be included in an assessment, we
have revised new § 303.321(a)(2)(ii) and
(c)(1) (proposed § 303.320(b), (c), and (d)) to provide that an assessment means
the ongoing procedures used by
qualified personnel to identify the
child’s unique strengths and needs and
the early intervention services
appropriate to meet those needs. We
also have clarified that an assessment of
the child must include a review of the
results of the evaluation conducted
under new § 303.321(b) (proposed
§ 303.320(a)(2)), personal observations
of the child, and the identification of the
child’s needs in each of the
developmental areas in § 303.21(a)(1).
Because we have revised new
§ 303.321(a)(2)(ii) and (c)(1) (proposed
§ 303.320(b), (c), and (d)) to state that
the assessment of the child must
include identification of the child’s
unique strengths and needs and the
early intervention services appropriate
to meet those needs, we have removed
the language requiring an assessment of
service needs from new § 303.321(a)(1)
(proposed § 303.320(a)(iv)) and have
removed proposed § 303.320(d) from the
final regulations. The results of the
assessment of the child, together with
the results of the assessment of the
family, are the basis for the IFSP Team’s
determination of which early
intervention services would be
appropriate to meet the needs of the
infant or toddler with a disability and
his or her family.
Regarding commenters’ concern that
using assessments to identify the early
intervention services appropriate for a
child prior to an IFSP meeting is
inconsistent with the Act, section 636(a)
of the Act, provides that a statewide
system must include a multidisciplinary
assessment of the unique strengths and
needs of the infant or toddler and the
identification of services appropriate to
meet such needs. Section 636 of the Act
states that the IFSP shall contain a
statement of specific early intervention
services and §§ 303.343 and 303.344
require the IFSP Team (which includes
the parent) to identify the early
intervention services appropriate to
meet the child’s needs at the IFSP Team
meeting. This requirement is not
replaced by the assessment; rather, the
assessment serves to inform the IFSP
Team process by identifying the
developmental strengths and needs of
the child. We believe that this facilitates
rather than preempts important
decisions that need to be made through
the IFSP process. Changes: The procedures for
assessment of the child have been
changed in new § 303.321(a)(1)(ii) and
(c)(1) (proposed § 303.320(b), (c), and
(d)) to include the identification of the
child’s unique strengths and needs and
the early intervention services
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60198 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
appropriate to meet those needs.
Further, new § 303.321(c)(1) (proposed
§ 303.320(b), (c), and (d)) has been
revised to clarify that an assessment of
the child must include a review of the
results of the evaluation conducted
under new § 303.321(b) (proposed
§ 303.320(a)(2)), personal observations
of the child, and the identification of the
child’s needs in each of the
developmental areas in § 303.21(a)(1).
Comment: A few commenters
requested that new § 303.321(a)(3)(i)
(proposed § 303.320(a)(2)(iii)) be
clarified to require that a child, prior to
the IFSP meeting, receive an assessment
in accordance with new § 303.321(c)
(proposed § 303.320(b) and (c)) even
when medical records and other
information are adequate to determine
eligibility without an evaluation in
order to inform IFSP members of the
child’s unique strengths and needs. Discussion: We agree that clarification
is needed because we inadvertently
referred in the proposed section to
‘‘assessment’’ instead of ‘‘evaluation’’ in
the parenthetical ‘‘(without conducting
an assessment of the child and the
family).’’ Additionally, regardless of
whether a child’s eligibility is
determined through medical records or
an evaluation, once a child is
determined to be eligible to receive
services under part C of the Act, initial
assessments of the child and family
must be completed. Activities that are the basis of the
initial assessment of the child may
occur with the initial evaluation of the
child. We have added the phrase ‘‘if the
child is determined eligible as an infant
or toddler with a disability as defined in
§ 303.21’’ to new § 303.321(a)(1)(ii)
(proposed § 303.320(a)(1)(ii) and
(a)(1)(iii)) to clarify that an assessment
is required once a child is determined
eligible, regardless of how eligibility is
determined. We also have added a
sentence to new § 303.321(a)(3)(i)
(proposed § 303.320(a)(2)(iii)) to further
explain that, if a child’s part C eligibility
is established through a review of his or
her medical or other records, the lead
agency or EIS provider must conduct
assessments, including the family
assessment, pursuant to new
§ 303.321(c) (proposed § 303.320). Changes: As noted elsewhere, we
have added the phrase ‘‘if the child is
determined eligible as an infant or
toddler with a disability as defined in
§ 303.21’’ to new § 303.321(a)(1)(ii)
(proposed § 303.320(a)(1)(ii) and
(a)(1)(iii)). We also have added a
sentence to new § 303.321(a)(3)(i)
(proposed § 303.320(a)(2)(iii)) to further
explain that, if a child’s part C eligibility
is established under that paragraph, the lead agency or EIS provider must
conduct assessments, including the
family assessment, pursuant to new
§ 303.321(c) (proposed § 303.320).
Comment: One commenter expressed
concern about proposed § 303.320(a)(3),
which required that evaluations and
assessments of the child and family be
conducted in the child’s or family’s
native language, as appropriate. The
commenter stated that the phrase ‘‘as
appropriate’’ weakens the requirement.
Another commenter requested that the
regulations restore the phrase ‘‘unless it
is clearly not feasible to do so’’ from
current § 303.323(a) and, further, that
these regulations use the phrase
consistently when referencing native
language. Two commenters requested
that we add ‘‘or other mode of
communication’’ after ‘‘native language’’
in proposed § 303.320(a)(3) to ensure
that the native language requirement is
not narrowly interpreted to exclude sign
language. One commenter requested that,
because of the family-centered nature of
the part C program, the assessment
should be conducted in the family’s
native language, regardless of whether
the child has or uses a different native
language. Discussion: For clarity and in
response to the comments about
removing the phrase ‘‘as appropriate’’
and adding the phrases ‘‘unless clearly
not feasible to do so’’ and ‘‘other mode
of communication’’ to proposed
§ 303.320(a)(3), regarding conducting
evaluations and assessments of the
child, we have deleted the phrase ‘‘in
the child’s or family’s native language
(as appropriate)’’ from new
§ 303.321(a)(4) (proposed
§ 303.320(a)(3)), and added new
provisions in §§ 303.321(a)(5) and (a)(6). We specify in new § 303.321(a)(5)
that, unless clearly not feasible to do so,
all evaluations and assessments of a
child must be conducted in the native
language of the child, in accordance
with the definition of native language in
§ 303.25. We also specify in new
§ 303.321(a)(6) that, unless clearly not
feasible to do so, family assessments
must be conducted in the native
language of the family members being
assessed, in accordance with the
definition of native language in
§ 303.25. The ‘‘unless clearly not
feasible to do so’’ standard
acknowledges that there may be
instances when conducting evaluations
or assessments in the native language of
the child, parent, or family member is
not possible because, for example,
interpreters for a particular language
cannot be located, despite best efforts. If
on-site interpreters cannot be located for a particular language despite best
efforts, other methods of
communication in the native language,
such as using telephonic interpreters,
should also be explored when an
interpreter is needed and appropriate,
for the evaluation and assessment.
We do not agree with the commenter
that evaluations and assessments of the
child should only be conducted in the
parent’s or family’s native language,
regardless of whether the child has or
uses a different language. Section
303.321(a)(5), together with
§ 303.25(a)(2), recognize that while it
sometimes may be appropriate to
conduct an evaluation or assessment of
an infant or toddler in the language
normally used by the child’s parents, in
other cases it may be determined to be
developmentally appropriate to evaluate
or assess the child in the language
normally used by the child if that
language differs from his or her parents.
For example, evaluations or assessments
of infants are often conducted in the
native language of the parent because
the parents are present and infants are
pre-verbal both in their expressive and
receptive language abilities. In contrast,
many evaluations and assessments of
toddlers (i.e., children who are between
the ages of one and three) are conducted
in the toddler’s native language, rather
than the native language of the parent.
We believe that ultimately the qualified
personnel conducting the evaluation or
assessment is in the best position to
determine which language is
developmentally appropriate—-that of
the child or the parent. Changes: We have removed the
phrase ‘‘in the child’s or family’s native
language (as appropriate)’’ from new
§ 303.321(a)(4) (proposed
§ 303.320(a)(3)), and added new
provisions in §§ 303.321(a)(5) and (a)(6).
We specify in new § 303.321(a)(5) that,
unless clearly not feasible to do so, all
evaluations and assessments of a child
must be conducted in the native
language of the child, in accordance
with the definition of native language in
§ 303.25. We also specify in new § 303.321(a)(6)
that, unless clearly not feasible to do so,
family assessments must be conducted
in the native language of the family
members being assessed, in accordance
with the definition of native language in
§ 303.25. Comment: A few commenters
recommended that subpart D include
provisions that clearly specify that
multidisciplinary evaluations include
the participation of qualified personnel
with knowledge of the disability that
may be indicated, particularly given the
inclusion of informed clinical opinion
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in new § 303.321(a)(3)(ii) (proposed
§ 303.320(b)(1) and (b)(2)). The
commenters stated that for clinical
opinion to be valid, personnel must
have knowledge and experience in the
disability presented by the child. For
infants and toddlers with a known
disability (e.g., visual impairment), the
inclusion of personnel with knowledge
and training in that area of disability
increases the accurate interpretation of
results and is consistent both with the
Act and the part B regulations.
Discussion: The term evaluation is
defined in new § 303.321(a)(2)(i) as
procedures used by qualified personnel
to determine a child’s initial and
continuing eligibility under part C of the
Act, consistent with the definition of
infant or toddler with a disability in
§ 303.21. The definition of qualified
personnel in § 303.31 requires that
personnel meet State-approved or State-
recognized certification, licensing,
registration, or other comparable
requirements that apply to the area in
which the individuals are conducting
evaluations or assessments or providing
early intervention services. We believe
that new § 303.321(a)(2)(i), in
conjunction with the definition of
qualified personnel in subpart A of
these regulations, adequately address
the commenters’ concerns and,
therefore, repeating the definition in
this section is not necessary.
Please note, regarding the
commenters’ concern about clinical
opinion, for an infant or toddler with a
diagnosed physical or mental condition
that has a high probability of resulting
in a developmental delay (i.e., known
disability), clinical opinion may not be
necessary to determine eligibility
because, under new § 303.321(a)(3)(i)
(proposed § 303.320(a)(2)(iii)), the
child’s medical or other records may be
sufficient to establish eligibility. For a
child without a diagnosed physical or
mental condition that has a high
probability of resulting in a
developmental delay, clinical opinion
may be used in evaluating a child to
establish eligibility but it may not be
used to negate eligibility established
through the use of other appropriate
evaluation instruments.
Changes: None.
Procedures for Assessment of the Child
and Family (New § 303.321(c))
(Proposed § 303.320(b) and (c)) Comment: Two commenters
recommended adding language to new
§ 303.321(c) (proposed § 303.320(b) and
(c)) to require the qualified personnel
who perform the assessment of a child
to be from disciplines that relate to the concerns and needs for which the child
was referred for part C services.
Discussion: As defined in
§ 303.321(a)(2)(ii), the term assessment
means the ongoing procedures used by
qualified personnel to identify the
child’s unique strengths and needs and
the early intervention services
appropriate to meet these needs
throughout the period of the child’s
eligibility under this part. These
qualified personnel must review the
results of the evaluation conducted
under new § 303.321(b) (proposed
§ 303.320(a)(2)); observe the child; and
identify the child’s needs in each of the
developmental areas in § 303.21(a)(1).
Qualified personnel, as defined in
§ 303.31, means personnel who have
met State-approved or State-recognized
certification, licensing, registration, or
other comparable requirements that
apply to the area in which the
individuals are conducting evaluations
or assessments, or providing early
intervention services. Given that the
term assessment encompasses the
assessment of the areas of concern and
need for which a child was referred to
part C services, and that personnel must
be qualified, under § 303.31, in the areas
in which they are providing an
assessment, the regulations sufficiently
address the commenters’ concern. For
this reason, we have not made the
requested change. Changes: None.
Comment: One commenter requested
clarification as to whether informed
clinical opinion in new
§ 303.321(a)(3)(ii) (proposed
§ 303.320(b)(2)) was an objective
criterion or an assessment strategy
separate from other objective criteria.
Some commenters suggested that a more
detailed description of informed clinical
opinion than the one used in new
§ 303.321(a)(3)(ii) (proposed
§ 303.320(b)(2)) is needed. These
commenters recommended that the
Department adopt the definition of
informed clinical opinion used by the
National Early Childhood Technical
Assistance Center (NECTAC). NECTAC
describes informed clinical opinion as
the fusion of the assessment team’s
knowledge and experience with all the
information collected during an
assessment, including informal
measures, such as interviews with
parents or observation of the child, and
standardized measures such as test
scores. Another commenter
recommended that States be allowed to
define informed clinical opinion based
on the definition of developmental
delay for the State. Lastly, a few commenters requested
clarification of the last phrase of new § 303.321(a)(3)(ii) (proposed
§ 303.320(b)(2)), which states that
informed clinical opinion may not
negate the results of assessment
instruments used to establish eligibility.
Discussion: As set forth in new
§ 303.321(a)(3)(ii), qualified personnel
must use their informed clinical opinion
when conducting an evaluation or an
assessment of a child. The use of
informed clinical opinion by qualified
personnel is neither an objective
criterion nor a separate assessment
strategy. Rather, informed clinical
opinion is the way in which qualified
personnel utilize their cumulative
knowledge and experience in evaluating
and assessing a child and in interpreting
the results of evaluation and assessment
instruments.
With regard to allowing States to
define informed clinical opinion based
on that State’s definition of
developmental delay, we note that all
States must allow qualified personnel,
when conducting evaluations, to use
their informed clinical opinion to
determine whether the child meets the
State’s definition of developmental
delay. Given the Department’s
monitoring experience in States where
qualified personnel are not permitted to
use their informed clinical opinion as a
separate basis to establish eligibility, we
have set forth in new § 303.321(a)(3)(ii)
that such personnel must be able to use
informed clinical opinion as an
alternate basis for establishing
eligibility. Permitting informed clinical
opinion to serve as a separate basis to
establish a child’s eligibility under part
C of the Act is important given that
standardized instruments may not
capture the extent of a child’s delay.
The purpose of new § 303.321(a)(3)(ii) is
to alleviate the confusion and to
expressly permit qualified personnel to
use their informed clinical opinion to
establish a child’s eligibility for early
intervention services under part C of the
Act, even when other instruments fail to
identify or confirm the level of
developmental delay to establish part C
eligibility.
Finally, we agree with the commenter
that clarification is needed regarding the
last phrase of new § 303.321(a)(3)(ii)
(proposed § 303.320(b)(2)), which states
that informed clinical opinion may not
negate the results of assessment
instruments used to establish eligibility.
We inadvertently referred to
‘‘assessment’’ instruments instead of
‘‘evaluation’’ instruments in proposed
§ 303.320(b)(2)). We have corrected this
in new § 303.321(a)(3)(ii) to state that in
no case may informed clinical opinion
be used to negate the results of
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evaluation instruments used to establish
eligibility.
Changes: We have clarified in new
§ 303.321(a)(3)(ii) (proposed
§ 303.320(b)(2)) that qualified personnel
must use their informed clinical opinion
when conducting an evaluation or
assessment of the child and replaced the
phrase ‘‘assessment instruments’’ with
the phrase ‘‘evaluation instruments.’’ Comment: One commenter
recommended that it should remain a
State option to determine when a low
test score for a child, in a domain such
as adaptive behavior, is due to cultural
preferences rather than a true delay. Discussion: All evaluations and
assessments of a child and family under
new § 303.321(a)(4) must be selected
and administered so as not to be racially
or culturally discriminatory. In
conducting an evaluation and
assessment, the lead agency must ensure
that they are not culturally
discriminatory and must permit
qualified personnel to use informed
clinical opinion in interpreting the
results of evaluation and assessment
instruments. Changes: None.
Procedures for Assessment of the
Family (New § 303.321(c)) (Proposed
§ 303.320(c)) Comment: A number of commenters
stated that the language in proposed
§ 303.320(c) regarding voluntary family
assessments appeared to be something
that is done ‘‘to’’ families and not
‘‘with’’ families. The commenters
encouraged the Department to consider
the term ‘‘family-directed assessment’’
in the regulations when referring to a
family assessment in order to make it
clear that the family is a primary partner
in the process. One commenter suggested that the
family assessment in new
§ 303.321(c)(2) (proposed § 303.320(c))
be based on information obtained
through the use of assessment tools,
voluntary personal interviews, or other
appropriate methods. Another
commenter recommended that language
be added to new § 303.321(c)(2))
(proposed § 303.320(c)) to ensure
culturally competent services, including
an awareness and respect of cultural
differences in family values and child
rearing practices. Discussion: We have restructured new
§ 303.321(c)(2) (proposed § 303.320(c))
to identify both the purpose and the
requirements of the family assessment,
which requirements are set forth in new
§ 303.321(c)(2)(i) through (c)(2)(iii). We
agree with commenters and have added
the term ‘‘family-directed assessment’’
from section 636(a)(2) of the Act to new § 303.321(c)(2) to ensure that the
identification of a family’s resources,
priorities, and concerns are family-
directed.
Concerning the commenter’s request
to add ‘‘other appropriate methods,’’
new § 303.321(c)(2)(ii) (proposed
§ 303.320(c)) requires family
assessments to be based on information
obtained through an assessment tool
and also on information provided by the
family through a personal interview.
Nothing in this provision would
preclude the use of additional
appropriate methods provided that the
family assessment includes the use of an
assessment tool and personal interview
pursuant to new § 303.321(c)(2)(ii)
(proposed § 303.320(c)). We do not
believe it is appropriate to require all
family assessments to use ‘‘other
appropriate methods.’’
Concerning the comment on
culturally competent services, the
requirements in § 303.321(c)(2)(i)
through (c)(2)(iii) ensure that each
family is involved and has the
opportunity to meet with a lead agency
or EIS provider to identify their
priorities and concerns regarding the
development of the child (i.e., by
participating in the assessment, by
providing information in response to the
assessment tool and personal interview,
and by providing a description of its
resources, priorities, and concerns
related to enhancing the child’s
development). We believe family
involvement can help ensure that
services that are identified in the IFSP
are relevant and culturally competent.
Changes: We have restructured new
§ 303.321(c)(2)(i) through (c)(2)(iii)
(proposed § 303.320(c)) to list the
requirements of a family assessment as
follows: (1) Be voluntary on the part of
each family member participating in the
assessment; (2) Be based on information
obtained through an assessment tool
and also through an interview with
those family members who elect to
participate in the assessment; and (3)
Include the family’s description of its
resources, priorities, and concerns
related to enhancing the child’s
development.
Comment: Two commenters requested
that we emphasize the important role of
siblings by including them in new
§ 303.321(c)(2) (proposed § 303.320(c)).
Other commenters agreed and, in
addition to siblings, requested that new
§ 303.321(c)(2) (proposed § 303.320(c))
include a reference to grandparents,
other family members, and others who
take on roles, responsibilities, or
functions traditionally taken on by
family members. Discussion:
New § 303.321(c)(2)
(proposed § 303.320(c)) is based on
section 636(a)(2) of the Act, which
requires a family-directed assessment of
the resources, priorities, and concerns of
the family. Including a reference to
siblings or other individuals who take
on the roles, responsibilities, or
functions traditionally performed by
family members is not necessary. The
term ‘‘family’’ is not exclusive and,
therefore, this term, as it is used in new
§ 303.321(c)(2) (proposed § 303.320(c)),
would cover any of the individuals
mentioned by the commenters, such as
siblings. Not defining this term will
allow individual families to define the
term in a manner that best meets the
unique needs of the child involved. Changes: None.
Determination That a Child Is Not
Eligible (New § 303.322) Comment: None.
Discussion: New § 303.320(a)(2)(ii)
(proposed § 303.303(a)(3)) outlines the
process a lead agency must follow if,
through screening, the lead agency
determines that a child is not suspected
of having a disability under this part.
The proposed regulations did not
specify the procedures a lead agency
must follow if it determines, through an
evaluation, that a child is not a child
with a disability. We have added a new
§ 303.322 to clarify the procedures a
lead agency must follow if, after an
evaluation is conducted under new
§ 303.321 (proposed § 303.320), it
determines that a child is not eligible for
services under this part. Specifically, a
lead agency must provide the parent
with prior written notice required by
§ 303.421, and include in the notice
information about the parent’s right to
dispute the eligibility determination
through dispute resolution mechanisms,
such as requesting a due process hearing
or mediation or filing a State complaint. Changes: New § 303.322 has been
added to identify the procedures the
lead agency must follow if, after
conducting an evaluation, it determines
that a child is not eligible for services
under this part.
Individualized Family Service Plans—
General (§ 303.340)
Comment: Many commenters
expressed concern about the definition
of multidisciplinary in proposed
§ 303.24 because they believed this
definition, used in the context of
multidisciplinary IFSP Teams, could
result in an IFSP Team being comprised
of only one member other than the
parent. These commenters argued that
such a result is neither consistent with
best practices nor the requirements in
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section 636(a)(3) of the Act regarding a
multidisciplinary team developing the
IFSP.
Discussion: As noted in the Analysis
of Comments and Changes section for
§ 303.24, we agree with commenters
regarding the definition of
multidisciplinary as it applies to IFSP
Teams and have added in § 303.340,
concerning the development, review,
and implementation of an IFSP, a
reference to the ‘‘multidisciplinary
team, which includes the parents’’ to
reflect the requirements in section
636(a)(3) of the Act. The IFSP
participant requirements in § 303.343,
together with §§ 303.24(b) and 303.340,
clarify that the multidisciplinary IFSP
Team requires the involvement of the
parent and two or more individuals
from separate disciplines or professions,
one of whom must be the service
coordinator. Changes: We have added after the
reference to ‘‘IFSP’’ in § 303.340 the
following phrase ‘‘developed by a
multidisciplinary team, which includes
the parents’’ from section 636(a)(3) of
the Act.
Procedures for IFSP Development,
Review, and Evaluation (§ 303.342)
Comment: None.
Discussion: Based upon further
review of § 303.342(a), we have
determined that it is not entirely
accurate to refer to children who have
‘‘been evaluated for the first time and
determined to be eligible under this
part’’ in the lead-in to this section
because, as stated in new
§ 303.321(a)(3)(i) (proposed
§ 303.320(a)(2)(iii)), a child’s part C
eligibility can be established through a
review of his or her medical or other
records, without the child being
evaluated. Changes: We have deleted the phrase
‘‘for a child who has been evaluated for
the first time and determined to be
eligible under this part’’ from
§ 303.342(a) and have inserted, in its
place, ‘‘for a child referred to the part C
program and determined to be eligible
under this part as an infant or toddler
with a disability.’’ Comment: Some commenters
recommended that § 303.342 be revised
to require IFSP Teams, in developing
the IFSP of an infant or toddler with a
disability, to consider the same special
factors that IEP Teams must consider
under 34 CFR 300.324(a)(2) of the part
B regulations. These commenters
suggested requiring every IFSP Team to
consider strategies to address the
following: (1) Specific behaviors of an
infant or toddler with a disability whose
behavior impedes his or her development or the development of
other infants or toddlers with
disabilities; (2) the language needs of an
infant or toddler with a disability who
has limited English proficiency; (3) the
need for instruction in braille for an
infant or toddler who is blind or
visually impaired; (4) the
communication needs of an infant or
toddler who is deaf or hard of hearing,
including instruction in his or her
language and communication mode; and
(5) whether the infant or toddler with a
disability needs assistive technology
devices and services to ensure that
infants and toddlers with disabilities in
these groups receive appropriate
services to meet their language, literacy,
and other needs.
Discussion: The commenters
referenced the special factors in 34 CFR
300.324(a)(2) of the part B regulations,
which are from 614(d)(3)(B) of the Act.
Part C of the Act does not contain
similar specific language regarding
special factors that must be considered
by the IFSP Team. However, it is the
Department’s position that the
regulations, as written, adequately
address the commenters’ concerns.
Section 303.344(d)(1) requires that each
IFSP include a statement of the specific
early intervention services that are
necessary to meet the unique needs of
the child and the family to achieve the
results or outcomes identified in the
IFSP. Therefore, each IFSP Team must
explore any factor (including, as
applicable and appropriate, the factors
included in 34 CFR 300.342(a)(2)) that
are relevant to an infant or toddler with
a disability achieving the results or
outcomes identified in his or her IFSP. Changes: None.
Comment: None.
Discussion: For clarification, we have
added the words ‘‘results or’’ before
‘‘outcomes’’ and added ‘‘identified in
the IFSP’’ after the reference to
‘‘outcomes’’ and ‘‘services’’ in
§ 303.342(b)(1)(i) and (b)(1)(ii). Changes: We have added the words
‘‘identified in the IFSP’’ after the word
‘‘outcomes’’ and the word ‘‘services,’’ in
§ 303.342(b)(1)(i) and (b)(1)(ii),
respectively. Comment: One commenter
recommended that the regulations retain
Note 2 following current § 303.344. This
note recognizes the importance of the
variety of roles that family members
play in enhancing a child’s
development throughout the IFSP
process, the importance of addressing
the needs of the family in the IFSP
process in a collaborative manner, and
the parents’ retention of the ultimate
decision in determining whether they,
their child, or other family members will accept or decline services under
this part.
Discussion: Including Note 2 from
current § 303.344 is not necessary
because part of the note (regarding a
parent’s right to accept or decline
services) is reflected in § 303.342(e) and
the remainder of the note does not
reflect regulatory requirements but,
instead, is explanatory. As reflected in
§ 303.342(e), parents make the ultimate
decision as to whether they, their child,
or other family members will accept or
decline services under this part. Removal of the note does not in any
way change the policy of the
Department. We continue to believe that
best practice dictates that throughout
the process of developing and
implementing IFSPs for an infant or
toddler with a disability, the lead
agency, service coordinators, and EIS
providers need to recognize the variety
of roles that family members play in
enhancing a child’s development.
Additionally, addressing the needs of
the family in the IFSP process is crucial
and should be determined in a
collaborative manner with the full
agreement and participation of the
parent of the infant or toddler. Changes: None.
Comment: Several commenters
expressed opposition to replacing the
term ‘‘ongoing assessment of child and
family’’ in current § 303.342(c) with the
term ‘‘assessment of service needs’’ in
proposed § 303.342(c) and requested
clarification of the meaning of the term
‘‘service needs’’ in this section. Discussion: The term ‘‘service needs’’
was included in the proposed
regulations to be consistent with the use
of that term in new § 303.321 (proposed
§ 303.320). However, as discussed
earlier in this preamble in the Analysis
of Comments and Changes section in
response to comments on the use of the
term ‘‘service needs’’ in proposed
§ 303.320, we no longer use the term in
new § 303.321 (proposed § 303.320) or
any other section of these regulations.
We, therefore, have removed the phrase
from § 303.342(c) and replaced it with
the phrase ‘‘the child and family’’ to be
consistent with new § 303.321
(proposed § 303.320). Changes: The phrase ‘‘service needs’’
has been removed from § 303.342(c) and
replaced with the words ‘‘the child and
family.’’ Comment: One commenter
recommended amending
§ 303.342(d)(1)(ii) to require a lead
agency to exhaust all possible options
for conducting IFSP meetings in the
native language of the family because
part C of the Act makes clear that
involvement of the family in the IFSP
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process is critical. The commenter was
concerned that the current regulatory
language allows too much room for a
lead agency to claim that it is ‘‘not
feasible’’ to conduct the IFSP meeting in
a family’s native language. The
commenter stated that, given the
availability of resources such as
bilingual staff, interpreters, and
telephonic interpreter service, it should
be feasible to ensure that IFSP meetings
are conducted in the family’s native
language.
Discussion: Section 303.342(d)(1)(ii)
requires that IFSP meetings be
conducted in the native language of the
family or other mode of communication
used by the family unless it is clearly
not feasible to do so. Thus, lead
agencies should consider the
availability of native language resources,
such as those listed by the commenter,
when determining whether it is feasible
to conduct the IFSP meeting in the
native language of the family. However,
given that the U.S. Census Bureau
recognizes over 300 languages used in
the United States (not including
dialects), it may not be feasible, in every
instance, to provide interpreter services
with respect to a particular native
language because an interpreter of that
language may not be available. Changes: None.
Comment: One commenter suggested
that the lead agency should be allowed
to provide notice to the child’s family
and other participants of the IFSP Team
meeting under § 303.342(d)(2) by
electronic mail (e-mail) or
documentation of a phone call arranging
the meeting, and not only by providing
written notice. The commenter further
stated that parents should be given the
option to waive receiving written
notification of the meeting in favor of
another method of notification. Discussion: The IFSP written notice
requirement in § 303.342(d)(2) is
substantively unchanged from current
§ 303.342(d)(2). Nothing in the
regulations prohibits States from
providing additional notice of the IFSP
meeting by, for example, electronic mail
or phone call, but, at a minimum, it
must provide written notice to the
family and other participants to ensure
that they can attend the IFSP meetings. Changes: None.
Comment: Two commenters suggested
that the requirements in § 303.342(e),
regarding informed parental consent for
services, are similar to those in
§ 303.420(d), regarding parental consent
and the ability to decline services, and
stated that the two sections should be
merged or cross-referenced. Another
commenter requested that the term
‘‘parental consent’’ as used in § 303.342(e) should be further defined.
Specifically, the commenter expressed
concern that § 303.342(e) requires the
lead agency only to obtain informed
consent prior to the provision of early
intervention services, and not informed
written consent as required by the Act.
Discussion: Section 303.342(e) is
consistent with § 303.420(a)(3) and (d)
regarding parental consent. The term
‘‘parental consent’’ in § 303.342(e) is
consistent with the statutory language in
section 636(e) of the Act (which refers
both to ‘‘parental consent’’ and
‘‘informed written consent from the
parents’’) and the definition of consent
in § 303.7. The term parental consent, as
used in § 303.342(e), must meet the
definition of consent in § 303.7. (In this
case, the word ‘‘parental’’ modifies the
term ‘‘consent,’’ which has a specific
definition in these regulations under
§ 303.7.) To further clarify, we have
added cross-references to § 303.7, which
requires that the parent understand and
agree in writing when giving consent,
and § 303.420(a)(3), which requires the
lead agency to ensure that parental
consent is obtained prior to providing
early intervention services to a child.
Also, in the interest of clarity and
tracking statutory language, we have
added the word ‘‘written’’ to the phrase
‘‘informed consent.’’
Changes: We have added in
§ 303.342(e) cross-references to §§ 303.7
and 303.420(a)(3) and revised the phrase
‘‘informed consent’’ to include the word
‘‘written.’’
Comment: In response to the 45-day
timeline in new § 303.310 (proposed
§ 303.320(e)) and the language in
§ 303.344(f)(1), regarding the timeline by
which services identified in a child’s
IFSP must be initiated, a few
commenters requested that the
regulations identify a timeline for the
provision of services.
Discussion: We have clarified in
§§ 303.342(e) and 303.344(f)(1) that
early intervention services must be
provided as soon as possible after
obtaining parental consent. We believe
that it is important for the timeline to
run from the date of parental consent
and not from the initiation date
identified at the IFSP meeting, as is
provided for in current § 303.344(f)(1).
A State may only provide a service
identified in the IFSP if a parent
provides consent under § 303.420. In
some instances, even if the IFSP is
developed with a service initiation date,
a parent may not have provided consent
to the service and, therefore, the service
may not be provided. Thus, we have
revised the time period to commence
from the date of parental consent. Currently, most States have adopted a
30-day timeline that commences from
the date of parental consent to the date
the services in the IFSP are provided
with some States adopting a shorter
timeline and only a few States adopting
a slightly longer timeline (e.g., 45 days),
which timeline also commences from
the date of parental consent to the date
the services in the IFSP are provided.
We do not believe it is appropriate to
adopt a time period more specific than
‘‘as soon as possible’’ for the provision
of all early intervention services
identified in an IFSP. While each State
must ensure that services in an IFSP are
provided as soon as possible after
receiving parental consent, we believe
that ‘‘as soon as possible’’ may vary
depending on a number of factors, such
as the availability of qualified personnel
in a State, the number of children to be
served, and the location of those
children. While we give States some
flexibility in implementing this
provision, we also monitor, through the
SPP/APR, data on when each State
initiates services for each child. Thus,
we decline to adopt in §§ 303.342(e) and
303.344(f)(1) a timeline more specific
than ‘‘as soon as possible.’’ Changes: We have clarified in
§§ 303.342(e) and 303.344(f)(1) that
early intervention services must be
provided as soon as possible after
parental consent is obtained.
IFSP Team Meetings and Periodic
Reviews (§ 303.343)
Comment: A few commenters
recommended amending
§ 303.343(a)(1)(v) to require that the
individual or individuals directly
involved in conducting the evaluations
and assessments in new § 303.321
(proposed § 303.320) must have
knowledge and training related to the
infant’s or toddler’s disability. Discussion: The requested change is
not necessary because, as we explained
in the Analysis of Comments and
Changes in response to comments
received on new § 303.321(a), the
individuals responsible for conducting
evaluations and assessments under new
§ 303.321(a)(2)(i) and (a)(2)(ii) (proposed
§ 303.320(a)(3)) must be qualified
personnel. Qualified personnel, under § 303.31,
are individuals who meet State-
approved or State-recognized
certification, licensing, registration, or
other comparable requirements that
apply to the developmental area in
which the individuals are conducting an
evaluation or assessments or providing
early intervention services. Given the
definition of qualified personnel in
§ 303.31, it is unnecessary to amend
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§ 303.343(a)(1)(v) as requested by the
commenter.
Changes: None.
Comment: Some commenters
expressed concern that the required
participants for the periodic review of
the IFSP in § 303.343(b) do not include
the individuals (such as the individuals
who conducted the evaluations and
assessments, unless conditions warrant)
who are required to participate in the
initial and annual IFSP review under
§ 303.343(a). Specifically, the
commenters stated that the regulations
limit the ability of parents under
§ 303.343(a)(1)(i) and (ii) to include
participants of their choosing in the
periodic review of the IFSP. Discussion: Section 303.343(b) makes
clear that individuals: (1) Who are
directly involved in conducting
evaluations and assessments or (2) who
provide early intervention services are
not required to be invited or attend the
IFSP periodic review meeting unless
‘‘conditions warrant.’’ An example of a
condition under § 303.342(b) that may
warrant the attendance of the qualified
personnel who conducted an evaluation
at the IFSP periodic review meeting is
if that individual conducted a
reevaluation of an infant or toddler with
a disability and the results of that
evaluation will be discussed at the
periodic review. Additionally,
reviewing the child’s progress in a
particular developmental area may
require the participation of the EIS
provider(s) in those areas. In such
instances, the lead agency must ensure
the participation of those individuals. However, while the issues at an IFSP
periodic review meeting vary, the
periodic reviews are usually limited to
reviewing the child’s progress towards
the measurable results or outcomes. The
periodic review is less formal than the
initial or annual IFSP meeting and may
be done through a teleconference, a
face-to-face meeting or other means
acceptable to the parents and other
participants. Requiring the attendance
of individuals referenced in
§ 303.343(a)(1)(v) and (a)(1)(vi) at every
IFSP periodic review meeting would be
burdensome and unnecessary and thus
we refrain from making the change
requested by the commenter. The commenter correctly notes that a
parent may invite advocates or
individuals outside of the family to
periodic reviews under
§ 303.343(a)(1)(ii). However, that
provision may not be used to override
the lead agency’s determination of when
conditions warrant the attendance of
individuals directly involved in
conducting evaluations and assessments
or who are EIS providers. Changes:
None.
Content of an IFSP (§ 303.344)
Results or Outcomes (§ 303.344(c)) Comment: A few commenters
requested that the parenthetical phrase
referencing the inclusion of pre-literacy
and language skills as developmentally
appropriate for the child be deleted
from § 303.344(c). One commenter
stated that adding this parenthetical
phrase to this section, which requires
that a child’s IFSP include a statement
of the measurable results or measurable
outcomes expected to be achieved by
the child, creates confusion between
part C and part B responsibilities. The
commenter recommended replacing the
proposed language in the parenthetical
with ‘‘communication or social and
emotional developmental goals.’’ Discussion: Under § 303.344(c), the
IFSP must include, among other things,
a statement of the measurable results or
measurable outcomes expected to be
achieved for the child (including pre-
literacy and language skills, as
developmentally appropriate for the
child) and family. The phrase
‘‘including pre-literacy and language
skills as developmentally appropriate
for the child’’ is from section 636(d)(3)
of the Act. Thus, it would not be
appropriate to delete this language and
replace it with other language.
Concerning the confusion between part
C and part B responsibility, pre-literacy
and language skills emerge during
infancy and, therefore, should be a
measurable result or measurable
outcome that is developmentally
appropriate for a child served under the
part C program. Changes: None.
Comment: A few commenters
requested that we provide definitions
for the terms ‘‘measurable results’’ and
‘‘measurable outcomes,’’ as those terms
are used in § 303.344(c). These
commenters also questioned whether it
was necessary for this section to include
both terms. Discussion: Section 303.344(c)
incorporates language from section
636(d)(3) of the Act, which requires that
the IFSP contain a statement of the
‘‘measurable results or outcomes
expected to be achieved for the infant or
toddler and the family.’’ The
Department interprets the word
‘‘measurable’’ in this section of the Act
to modify both the words ‘‘results’’ and
‘‘outcomes.’’ For this reason, it is
appropriate to clarify, in § 303.344(c),
that the IFSP must contain measurable
results or measurable outcomes. Further
clarification is not necessary given that
there is little material difference, for IFSP content purposes, between the
meaning of the terms ‘‘results’’ and
‘‘outcomes’’ and we use these terms in
the regulation because they are both
referenced in the section 636 of the Act.
Changes: None.
Comment: Two commenters
recommended that the word
‘‘functional’’ be inserted before every
use of the word ‘‘outcomes’’ in these
regulations. Two other commenters
requested that, for clarity, the word
‘‘expected’’ be inserted before the words
‘‘results, outcomes, or early intervention
services’’ in § 303.344(c)(2). Discussion: We agree with the
commenters who recommended we add
the term ‘‘expected’’ before the words
‘‘results, outcomes, or early intervention
services are necessary’’ in
§ 303.344(c)(2). Therefore, we have
made the requested change. We decline to add the adjective
‘‘functional’’ every time the word
‘‘outcomes’’ is used in these regulations
because not all outcomes are functional;
for example, for children receiving
services under § 303.211, outcomes may
be educational. Changes: We have added the term
‘‘expected’’ before the words ‘‘results,
outcomes, or early intervention services
are necessary’’ in § 303.344(c)(2).
Early Intervention Services
(§ 303.344(d))
Comment: Some commenters
requested that the term ‘‘peer-reviewed
research’’ in § 303.344(d)(1) be defined
or removed. Most of the commenters
recommended that we use a definition
that is consistent with the National
Research Council’s use of the term. Two
commenters were concerned about a
potential conflict between the use of the
term ‘‘peer-reviewed research’’ in this
section and the use of ‘‘scientifically
based research’’ in § 303.112, regarding
the availability of early intervention
services. Another commenter stated that
the term ‘‘peer-reviewed’’ is not used in
the Act, and argued that because the
term ‘‘scientifically based research’’ is
used in the Act it should be used in this
section, rather than the term ‘‘peer-
reviewed.’’ Discussion: In the Analysis of
Comments and Changes section for
§ 303.112, we discuss the definition of
the term ‘‘peer-reviewed research.’’ We
also address in that section the
differences in meaning between the
term ‘‘scientifically based research,’’ as
used in section 635(a)(2) of the Act and
§ 303.112 of these regulations, and ‘‘peer
reviewed research,’’ as used in section
636(d)(4) of the Act and § 303.344(d) of
these regulations. We disagree with the
commenter who stated that the term
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‘‘peer-reviewed research’’ is not used in
the Act; as noted elsewhere in this
discussion, section 636(d)(4) of the Act,
which is the statutory basis for
§ 303.344(d), refers to peer-reviewed
research, not scientifically based
research.
Changes: None.
Comment: One commenter requested
that the regulations define the phrase
‘‘to the extent practicable’’ as used in
§ 303.344(d)(1). Discussion: As noted in § 303.112 of
the Analysis of Comments and Change,
defining the phrase ‘‘to the extent
practicable’’ is not needed. In the
context of these regulations, the term
has its plain meaning (i.e., feasible or
possible). As it is used to modify the
extent to which early intervention
services in a child’s IFSP are based on
peer-reviewed research in
§ 303.344(d)(1), we note that this phrase
is from section 636(d)(4) of the Act. As
used in this context, the phrase
generally means that specific early
intervention services should be based
on peer-reviewed research to the extent
that it is feasible or possible, given the
availability of peer-reviewed research
on the early intervention services
determined to be most appropriate to
respond to the child’s needs and
strengths identified pursuant to
information from the child’s evaluations
and assessments under § 303.321. Changes: None.
Comment: A few commenters
requested that § 303.344(d)(1) be
amended to require IFSP Teams to
consider the same special factors that
IEP Teams must consider under 34 CFR
300.324(a)(2) of the part B regulations. Discussion: These comments are
addressed in the Analysis of Comments
and Changes for subpart D in response
to the comments on § 303.342. Changes: None.
Comment: Some commenters
expressed concern that the terms
‘‘frequency,’’ ‘‘intensity,’’ ‘‘method,’
’
‘‘length,’’ and ‘‘duration’’ in
§ 303.344(d)(1)(i) do not reflect the
language in the Act and would require
significant revisions to forms and
training for staff. The commenters
requested that the terms and their
definitions be removed from the
regulations. Discussion: All of the terms
mentioned by the commenters are taken
directly from the Act. Section 636(d)(4)
of the Act requires the IFSP to include
a statement of the specific early
intervention services based on peer-
reviewed research, to the extent
practicable, necessary to meet the
unique needs of the infant or toddler
and the family, including the frequency, intensity, and method of delivering
those services. Additionally, section
636(d)(6) of the Act requires the IFSP to
include the anticipated length, duration,
and frequency of the early intervention
services identified in the IFSP.
Changes: None.
Comment: One commenter
recommended expanding the
requirements in § 303.344(d)(1)(ii)(B) to
require that, in the case of an infant or
toddler who is deaf or hard of hearing,
the IFSP Team must: (a) Consider home,
community, and program settings that
provide full support for language and
communication development for the
child and family; (b) base
recommendations for the appropriate
setting for providing services on a
comprehensive assessment of the child
and the family’s priorities, resources,
and concerns; (c) provide families with
comprehensive information about all
programs and providers; (d) encourage
families to visit all programs providing
services to young children; (e) support
families in selecting the programs,
providers, settings, and services that
best meet the needs of the child and
family; and (f) recommend programs
and services that employ qualified
providers who are fluent users of the
language(s) and modes of
communication of the child.
Discussion: An IFSP Team may
conclude that it is appropriate to
address the factors presented by the
commenter, as well as any other factors
that the IFSP Team, which includes the
child’s parent, considers relevant to a
determination concerning the
appropriate setting for the provision of
an early intervention service that meets
the child’s unique strengths and needs,
including those of infants or toddlers
who are deaf or hard of hearing. Thus,
it would be impracticable to identify all
potential factors concerning service
settings because such factors are guided
by the measurable outcomes or
measurable results expected to be
achieved for the infant or toddler with
a disability.
Changes: None.
Comment: Some commenters
requested clarification of the phrase ‘‘if
applicable’’ in § 303.344(d)(1)(ii)(A)
regarding the justification needed if a
service is not provided in the natural
environment. The commenters
expressed concern that some
individuals may interpret the language
to mean that a justification is not always
required for services that are not
provided in the natural environment
and may prompt lead agencies and EIS
programs to provide services in settings
other than the natural environment even though that setting may not necessarily
be appropriate.
Discussion: Pursuant to section
636(d)(5) of the Act, justification is
required when the IFSP Team (not the
lead agency or EIS program) determines
that early intervention services will be
provided in a setting other than the
natural environment. We did not intend
for the phrase ‘‘if applicable’’ to modify
this requirement. Thus, we have
removed the phrase ‘‘if applicable’’ to
alleviate potential confusion. Additionally, we have revised
§ 303.344(d)(1)(ii)(A) to require that the
IFSP include a statement that each early
intervention service is provided in the
natural environment to the maximum
extent appropriate or, a justification as
to why an early intervention service will
not be provided in the natural
environment. We believe that these
changes make clear that a justification is
always required when early intervention
services are not provided in the natural
environment for the child or service. Changes: We have removed the
phrase ‘‘if applicable’’ from
§ 303.344(d)(1)(ii)(A). Additionally, we
have revised § 303.344(d)(1)(ii)(A) to
require the IFSP to include (i) a
statement that each early intervention
service is provided in the natural
environment for that child or service to
the maximum extent appropriate,
consistent with §§ 303.13(a)(8), 303.26
and 303.126, or, subject to
§ 303.344(d)(1)(ii)(B), and (ii) a
justification as to why an early
intervention service will not be
provided in the natural environment. Comment: Many commenters
requested clarification on when early
intervention services may be provided
in the natural environment and when it
is appropriate to provide a service in a
setting that is not considered the natural
environment. A few commenters
recommended that § 303.126 be
amended to allow parents to unilaterally
decide where their infant or toddler
with a disability will receive early
intervention services. Another
commenter recommended that § 303.126
allow other family members to be
involved in determining the natural
environments in which early
intervention services will be provided.
Two commenters recommended
clarifying that an infant or toddler with
a disability may receive services in a
setting that is not the natural
environment when the IFSP Team,
which includes the parent, agrees that
services should not be delivered in the
natural environment. One commenter
requested that the Department
emphasize that selection of the natural
environment for a particular infant or
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toddler with a disability must be an
individualized decision and that the
State must monitor EIS providers to
ensure that all natural environment
decisions are individualized for each
child by the child’s IFSP Team.
Discussion: Section 303.344(d)(1)(ii),
when read together with § 303.126,
regarding early intervention services in
natural environments, clarifies that the
selection of the early intervention
service setting for an infant or toddler
with a disability is an individualized
decision. Additionally, § 303.700(a)(1),
regarding State monitoring and
enforcement, clarifies that the lead
agency must monitor the
implementation of this part. Early
intervention in the natural environment
has been the subject of the Department’s
focused monitoring. We do not believe
that any additional emphasis is
necessary. Nevertheless, we recognize that it may
not always be practicable or appropriate
for an infant or toddler with a disability
to receive an early intervention service
in the natural environment based either
on the nature of the service or the
child’s specific outcomes. For example,
the IFSP Team may determine that an
eligible child needs to receive speech
services in a clinical setting that serves
only children with disabilities in order
to meet a specific IFSP outcome. When
the natural environment is not chosen
with regard to an early intervention
service, the IFSP Team must provide, in
the IFSP, an appropriate justification for
that decision. Consistent with section 635(a)(16)(B)
of the Act and under § 303.344(d)(ii)(B),
the setting for the provision of early
intervention services under part C of the
Act is made by the IFSP Team. It is the
responsibility of the IFSP Team (which
includes the parent and may include
other family members who are invited
by the parent under § 303.343) to
determine the most appropriate setting
where each early intervention service
will be provided for an infant or toddler
with a disability based on the child’s
unique needs and outcomes. Under § 303.343(a), family members
may attend an IFSP meeting if requested
by the parent, and if feasible to do so.
Thus, we decline to revise § 303.126 to
include family members, as suggested
by one of the commenters, because a
parent—not the lead agency—
determines whether to invite additional
family members to IFSP meetings. Concerning the commenter who
suggested that early intervention
services could not be provided in a
setting other than the natural
environment and the commenters who
conversely requested that the regulations clarify that early
intervention services may be provided
in a setting other than the natural
environment, sections 635(a)(16)(B) and
636(d)(5) of the Act recognize that there
may be situations in which an early
intervention service cannot be provided
in the natural environment. Section
303.344(d)(1)(ii), consistent with section
636(d)(5) of the Act, requires that the
IFSP include a justification of the
extent, if any, that an early intervention
service will not be provided in the
natural environment. In these instances,
the IFSP Team (which includes the
child’s parents and other family
members, at the parent’s request) must
identify whether the service can be
provided in the natural environment
and if it cannot, then the IFSP Team
must document in the IFSP the
justification for why that service is not
provided in the natural environment
(i.e.,
why the alternative service setting
is needed for the child to meet the
developmental outcomes identified for
the child in his or her IFSP).
Changes: None.
Comment: One commenter requested
that the word ‘‘functional’’ be included
to define outcomes as used in
§ 303.344(d)(1)(ii)(B)(3).
Discussion: We address this comment
in the Analysis of Comments and
Changes section on § 303.344(c).
Changes: None.
Comment: Some commenters
recommended that natural environment
settings be determined based on a
child’s needs rather than on outcomes,
as required by § 303.344(d)(1)(ii)(B)(3).
Discussion: We believe that the
commenters’ concerns are addressed
because when developing outcomes for
the IFSP, the IFSP Team must consider
the needs of the child based on the
results of the evaluation and
assessments of the child and the family
pursuant to § 303.344(a) and (b). Once
the outcomes are developed, the IFSP
Team, including the parent, determines
which early intervention services are
necessary to achieve the expected
outcomes and the setting(s) in which
those services will be provided.
Changes: None.
Comment: Two commenters
expressed concern that
§ 303.344(d)(2)(iv) would require an
IFSP Team to project when a given
service will no longer be provided. The
commenters stated that some infants
and toddlers with disabilities may
require a particular early intervention
service for the duration of their
participation in the part C program and
it would be inappropriate for an IFSP
Team to project that far into the future. Discussion:
The purpose of the
language in § 303.344(d)(2)(iv) is to help
ensure accountability by requiring IFSP
Teams to consider and periodically
review the duration of a given service
during the period in which a child is
eligible to receive early intervention
services and to anticipate when the
child is expected to achieve certain
results or outcomes associated with the
receipt of the service. The duration of a
service must be discussed and, if
necessary, amended annually at the
IFSP meeting.
We appreciate that the IFSP Team
will not always know how long a
particular service will be needed to
achieve the measurable outcomes or
results in the child’s IFSP. What is
critical is that the IFSP Team evaluates
and re-evaluates whether the expected
outcomes are being achieved at the
appropriate pace. If the IFSP Team
miscalculates how long a particular
service will be provided, it can amend
the IFSP during a periodic review. Due
to the rapidly changing needs of infants
and toddlers and the need for
accountability in making sure the
appropriate services are provided, it is
important for families to participate in
periodic and annual reviews in order to
help make decisions about
modifications to the IFSP based on the
child’s present level of development.
Changes: None.
Comment: A few commenters
expressed concern about the
requirement in § 303.344(d)(4) that the
IFSP include an educational component
that promotes school readiness and
incorporates pre-literacy, language, and
numeracy skills for children who are at
least three years of age. The commenters
stated that this requirement seemed to
apply to any preschooler that has an
IFSP and stated that the requirement
was inconsistent with several provisions
in the part B regulations in 34 CFR part
300. Specifically, the commenters stated
that § 303.344(d)(4) was inconsistent
with 34 CFR 300.323(b), regarding when
an IFSP may serve as the IEP for
children with disabilities aged three
through five. Additionally, the
commenters stated that § 300.320 does
not explicitly require that the IEPs of
children with disabilities in preschool
include these IFSP content components.
Another commenter stated that
requiring an educational component in
every IFSP of a child aged three through
five is inappropriate because IFSP
Teams must determine the individual
needs of a child with a disability. One
commenter requested that the
Department clarify that the
requirements in § 303.344(d)(4) only
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apply to States that elect to serve
children past age three.
Discussion: The requirement in
§ 303.344(d)(4) that IFSPs include, for
children who are at least three years of
age, an educational component that
promotes school readiness and
incorporates pre-literacy, language, and
numeracy skills is directly from section
632(5)(B)(ii) of the Act. Section
303.344(d)(4) is consistent with 34 CFR
300.323(b) of the part B regulations. It
is not necessary under part B of the Act
to require an educational component for
children with disabilities who receive
preschool services under IEPs because
the definition of an IEP in 34 CFR
300.112 of the part B regulations
identifies by cross-reference the many
educational components of the IEP. Section 303.344(d)(4) and 34 CFR
300.323(b) of the part B regulations both
require all IFSPs for children age three
and older to include an educational
component that promotes school
readiness, and to incorporate pre-
literacy, language, and numeracy skills.
Children age three and older who have
IFSPs under part C of the Act would be
those children receiving services in
States that have elected to serve
children under the option in §§ 303.211
and 303.501(d) or under the option to
provide services to children beyond age
three until the beginning of the school
year in § 303.501(c)(1). Both the Act and
these regulations are clear and need no
further clarification. Changes: None.
Other Services (§ 303.344(e)) Comment: Some commenters
requested that this paragraph be
amended to explicitly include childcare
as an ‘‘other service.’’ Discussion: Section 303.344(e) states
that the IFSP must, to the extent
appropriate, identify medical and other
services that the child or family needs
or is receiving through other sources,
but that are neither required nor funded
under this part. While childcare is not
specifically included in paragraph (e) of
this section, an IFSP Team may decide,
when appropriate, to identify childcare
as an ‘‘other service’’ that is not required
under part C of the Act. We decline to
revise the regulations as requested by
the commenter because listing every
service that may be considered as an
‘‘other service’’ would be impractical. Changes: None.
Comment: Some commenters agreed
with removing the requirement in
current § 303.344(e)(1)(ii) that the IFSP
identify funding sources for the medical
and other services not required by part
C of the Act, stating that the
requirement was both beyond the scope of part C services and an additional
burden on lead agencies. However,
other commenters disagreed, arguing
that, absent such information in the
IFSP, children might not receive the
additional services that they need,
which would defeat the purposes of the
Act to ensure that early intervention
services are provided in order to reduce
the need for services as the child
matures.
Discussion: Section 303.344(e)(2)
requires that, if a child or family needs
medical and other services and these
services are not currently being
provided, the IFSP must include a
description of the steps the service
coordinator or family may take to assist
the child and family in securing those
services. The regulations no longer
require the IFSP Team to identify, and
service coordinators to coordinate,
funding sources for these services (those
not required under part C). We believe
that § 303.344(e)(2), with this change,
will help families receive additional
services, without unduly burdening
IFSP Teams and service coordinators
who may have limited knowledge about
funding for services provided by other
programs. Changes: None.
Dates and Duration of Service
(§ 303.344(f)) Comment: None.
Discussion: We have made technical
edits to § 303.344(f)(1) to cross-reference
the consent provisions applicable to this
section—that is, paragraph (e) of
§ 303.342 (parental consent) and
§ 303.420(a)(3) (consent for early
intervention services). For clarity and
consistency with these regulations, we
also have inserted the words ‘‘early
intervention’’ before the word ‘‘service.’’
As noted in the Analysis of Comments
and Changes section discussing
§ 303.342(e), we have revised, in
§ 303.344(f)(1), the timeline that services
begin ‘‘as soon as possible’’ after
parental consent (instead of ‘‘as soon as
possible’’ after the initiation date
identified in the IFSP in current
§ 303.344(f)(1)). Changes: We have replaced, in
§ 303.344(f)(1), after the words ‘‘as soon
as possible’’ the phrase ‘‘after the IFSP
meetings described in § 303.342’’ with
the words ‘‘after the parent consents to
the service, as required.’’ We also have
added references to § 303.342(e) and
§ 303.420(a)(3). Additionally, we have
inserted the words ‘‘early intervention’’
before the word ‘‘service.’’
Service Coordinator (§ 303.344(g))
Comment: One commenter requested
that the regulations require service coordinators to be responsible for
facilitating the full implementation of
the IFSP. The commenter also requested
that the regulations stipulate that the
service coordinator for a particular
infant or toddler with a disability may
not be an EIS provider providing early
intervention services to that particular
infant or toddler with a disability.
Discussion: Section 303.344(g), when
read together with § 303.33, the
definition of service coordination
services (case management), clarifies
that the service coordinator is
responsible for implementing the early
intervention services identified in a
child’s IFSP. We do not agree with the
commenter that the service coordinator
for a particular infant or toddler with a
disability cannot be an EIS provider for
that particular infant or toddler with a
disability, because the model of service
coordination can vary from one State to
another as well as among local
communities because of such
distinguishing factors as population size
and economic, social, or cultural
differences. Regardless of the model
chosen by a State, we expect service
coordination services to remain family
centered. Changes: None.
Transition From Part C Services
(§ 303.344(h)) Comment: None.
Discussion: For consistency with
section 636(a)(3) of the Act and
§ 303.344(h)(2)(iv), we have clarified
that the IFSP must include not only
transition steps but transition services
needed to support the smooth transition
of a child who is exiting the part C
program. Changes: We have added the phrase
‘‘and services’’ after the word ‘‘steps’’ to
§ 303.344(h)(1). Comment: One commenter supported
the requirement in § 303.344(h)(2)(iii) to
obtain parental consent before
transmitting additional information
about a child to the LEA and requested
clarification of the basic information
that must be provided to the LEA
representative at the transition
conference or IFSP meeting to develop
the transition plan. Another commenter
noted that careful documentation will
be needed to ensure that parental
consent is obtained. Discussion: To clarify the relationship
between §§ 303.344(h) and 303.209
regarding transition, we have added the
words ‘‘smooth’’ and ‘‘from part C
services’’ in § 303.344(h)(1). We also
have revised § 303.344(h)(2)(iii) to
clarify that the transition steps and
services in the IFSP must include
confirmation that child find information
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was transmitted to the LEA or other
relevant agency.
With regard to the comments
regarding parental consent in
§ 303.344(h)(2)(iii), we have clarified
that parental consent must be obtained
if personally identifiable information is
disclosed as required under § 303.414.
Given that personally identifiable
information is discussed at the IFSP
meeting to develop a transition plan, if
the LEA representative is from an LEA
that is not a participating agency under
§ 303.403(c) or if attendance is required
of other individuals who are not
employees or representatives of
participating agencies, parental consent
is required under § 303.414 for the lead
agency to be able to disclose personally
identifiable information to these
individuals at the meeting. We also have clarified that the
additional information to be provided to
the LEA to ensure continuity of services
includes a copy of the most recent
evaluation and assessments of the child
and family and the most recent IFSP. Changes: We have added the words
‘‘smooth’’ and ‘‘from part C services’’ in
§ 303.344(h)(1). We also have added the
words ‘‘confirmation that’’ to precede
the words ‘‘child find information’’ and
‘‘if required under § 303.414’’ to follow
the phrase ‘‘parental consent’’ in
§ 303.344(h)(2)(iii). We also have
clarified that the additional information
in § 303.344(h)(2)(iii) includes a copy of
the most recent evaluation and
assessments of the child and family and
the most recent IFSP. Comment: One commenter stated that
the requirement in proposed
§ 303.344(h)(1)(iii) that an IFSP include
the steps that must be taken to support
the transition of the child to early
education, Head Start and Early Head
Start, or child care programs is
inappropriate because it is not required
in the Act. This commenter requested
that the requirement be removed from
the regulations. Discussion: We agree with the
commenter that requiring transition to
specific educational or child care
programs may not be appropriate for
every child and the phrase ‘‘other
appropriate services’’ covers such
programs. The programs identified in
proposed § 303.344(h)(1)(iii) were
intended to be examples of programs
into which children may transition from
part C services. However, early
education, Head Start, Early Head Start,
or child care programs are covered
through the reference to other
appropriate services in proposed
§ 303.344(h)(1)(iv), which stated that the
IFSP must include the steps to be taken
to support the transition of the child, in accordance with § 303.209, from part C
services to other appropriate services.
Therefore, to eliminate duplication, we
have removed proposed
§ 303.344(h)(1)(iii). We also note that
the reference in § 303.344(h)(1)(i) to
elementary school or preschool was
incorrect and are revising
§ 303.344(h)(1)(ii) to refer to ‘‘part C
services under § 303.211.’’
Changes: We have removed proposed
§ 303.344(h)(1)(iii) and redesignated
proposed § 303.344(h)(1)(iv) as
§ 303.344(h)(1)(iii). We have revised
§ 303.344(h)(1)(ii) to refer to ‘‘part C
services under § 303.211.’’
Interim IFSPs—Provision of Services
Before Evaluations and Assessments
Are Completed (§ 303.345)
Comment: None.
Discussion: To improve clarity, we
have added ‘‘interim IFSPs’’ to the title
of this section. Changes: We have added ‘‘Interim
IFSPs’’ to the title of § 303.345.
Responsibility and Accountability
(§ 303.346)
Comment: None.
Discussion: For consistency
throughout the regulations, we have
clarified that the agency referenced in
§ 303.346 is the public agency (defined
in § 303.30) and the person referenced
in this section is an EIS provider
(defined in § 303.12). Changes: We have revised § 303.346
so that it refers to a public agency and
an EIS provider, rather than an agency
and person.
Subpart E—Procedural Safeguards
General
Confidentiality and Opportunity To
Examine Records (§ 303.401)
Comment: A few commenters
recommended retaining as much of
current § 303.402, concerning the
opportunity to examine records, and
§ 303.460, concerning confidentiality of
information, as is consistent with the
Act. Discussion: The confidentiality rights
and protections contained in current
§§ 303.402 and 303.460 have been
retained in § 303.401(b) and have been
explicitly referenced in both
§§ 303.401(b) and 303.402 of these
regulations, consistent with sections
617(c), 639(a)(2), and 642 of the Act.
Provisions concerning parents’ rights to
inspect and review their children’s
records in current § 303.402 are
incorporated in § 303.401(b)(2). The
substance of the note following current
§ 303.460, which concerns the
applicable confidentiality rights and protections afforded under sections
617(c) and 642 of the Act, is now in
§§ 303.401(b) and 303.402.
We have added language in
§ 303.401(b) clarifying that, as required
under sections 617(c) and 642 of the
Act, the regulations in §§ 303.401
through 303.417 ensure the protection
of the confidentiality of any personally
identifiable data, information, and
records collected or maintained
pursuant to this part by the Secretary
and by participating agencies, including
the State lead agency and EIS providers,
in accordance with the Family
Educational Rights and Privacy Act
(FERPA) in 20 U.S.C. 1232g and 34 CFR
part 99. Changes: We have deleted in
§ 303.401(b) the parenthetical ‘‘(which
contain confidentiality provisions under
FERPA in 20 U.S.C. 1232g and its
regulations in 34 CFR part 99)’’ and
added in §§ 303.401(b) and 303.402
language regarding the implementation
of the regulations in §§ 303.401 through
303.417 under sections 617(c) and 642
of the Act to ensure the protection of the
confidentiality of any personally
identifiable data, information, and
records collected or maintained
pursuant to this part, in accordance
with FERPA in 20 U.S.C. 1232g and 34
CFR part 99. Comment: A few commenters
recommended that the rights and
protections afforded to parents
concerning confidentiality and access to
records be extended to foster families
and agencies responsible for infants and
toddlers who reside in out-of-home care. Discussion: The confidentiality rights
and protections in §§ 303.401 through
303.417 are available to an individual
who meets the definition of a parent in
§ 303.27, which expressly includes
foster parents, and any individual
appointed as a surrogate parent under
§ 303.422. However, § 303.422(d)(2)
excludes from serving as a surrogate
parent for a child, an employee of the
lead agency or any other public agency
or EIS provider that provides any
services to the child or a family member
of that child. Thus, the confidentiality
rights and protections available to
parents under §§ 303.401 through
303.417 would not be available to
agencies responsible for the care of
infants and toddlers not residing at
home or to the employees of such
agencies. Changes: None.
Comment: One commenter requested
that we clarify the word ‘‘broader’’ as
used in proposed § 303.401(b)(1),
regarding confidentiality procedures. Discussion: Proposed § 303.401(b)(1)
stated that the part C confidentiality
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procedures are consistent with, but
broader than, those under FERPA. In
some instances the part C
confidentiality procedures differ from
the requirements under FERPA (for
example, part C uses the term
‘‘participating agency’’ and permits
States to adopt an opt-out policy in
§ 303.401(e)). We agree that the phrase
‘‘that are consistent with, but broader
than those under’’ is not clear; therefore,
we have removed the phrase.
Additionally, we have removed the last
phrase of the parenthetical ‘‘and include
additional part C requirements’’ because
it is redundant.
Changes: The phrase ‘‘that are
consistent with, but broader than those
under’’ and the last phrase of the
parenthetical ‘‘and include additional
part C requirements’’ have been
removed. Comment: One commenter requested
that the Department clarify whether it
violates part C confidentiality
regulations to accept a referral without
parental consent. Discussion: Section 303.401(c)(2)
provides that the part C confidentiality
procedures apply from the point in time
when the child is referred for early
intervention services, and thus, do not
apply prior to a referral. Under
§ 303.401(c)(2), the confidentiality
provisions under part C of the Act do
not apply to primary referral sources.
Thus, part C does not prohibit the lead
agency or an EIS provider from
accepting a referral of a child to the
State part C system from a primary
referral source. However, the primary
referral source may be required to obtain
parental consent prior to making a
referral under other applicable laws
(such as HIPAA, CAPTA, or State laws). Changes: None.
Comment: None.
Discussion: Given that we reference
‘‘participating agencies’’ in §§ 303.405
through 303.417, we have changed the
reference in § 303.401(c)(2) from ‘‘lead
agency and EIS provider’’ to
‘‘participating agency.’’ We also have
clarified that the confidentiality
procedures apply until the later of when
the participating agency is no longer
required to maintain or no longer
maintains, under applicable Federal and
State laws, the personally identifiable
information of a child and the child’s
family that is contained in early
intervention records collected, used, or
maintained under this part by the lead
agency. Changes: We have replaced the phrase
‘‘lead agency or EIS provider’’ with the
phrase ‘‘participating agency’’ in
§ 303.401(c)(2). We also have replaced
the phrase ‘‘required to maintain or maintains’’ with the phrase ‘‘required to
maintain or no longer maintains’’ in
§ 303.401(c)(2).
Disclosure of Information (§ 303.401(d))
Comment: One commenter stated that
it is unnecessary for the lead agency to
disclose the information identified in
§ 303.401(d) to the LEA where the child
resides or to the SEA and that such
disclosure may potentially breach the
right to confidentiality of personally
identifiable information. Discussion: Section 637(a)(9)(A)(ii)(I)
of the Act, concerning preschool
transition, requires the lead agency to
notify the LEA where the toddler resides
that the toddler will shortly reach the
age of eligibility for preschool services
under part B of the Act. We believe that
notifying the LEA where the child
resides and the SEA of the toddler’s
name, date of birth, and the parent
contact information (including parents’
names, addresses, and telephone
numbers) is necessary to implement the
requirements in section
637(a)(9)(A)(ii)(I) of the Act and to
ensure that children exiting part C
services experience a smooth and
seamless transition to part B services. Changes: None.
Comment: One commenter stated that
the terms ‘‘State Lead Agency (SLA)’’
and ‘‘Local Lead Agency (LLA)’’ should
be used in the regulations instead of the
terms ‘‘SEA’’ and ‘‘LEA’’ because SEAs
and LEAs are only two of the many
types of lead agencies. The commenter
also stated that using the terms ‘‘SEA’’
and ‘‘LEA’’ in the part C regulations is
confusing. Discussion: Part C of the Act uses the
term ‘‘lead agency’’ to refer to the State
agency designated by the State’s
Governor under section 635(a)(10) of the
Act to administer the Federal part C
funds the State receives under section
643 of the Act and to be responsible for
implementing the statewide early
intervention system. We recognize that
while a few States have part C statewide
systems that refer to EIS providers as
‘‘local lead agencies’’ this is not the
general practice among most States.
Additionally, many EIS providers are
not public agencies and, therefore, we
decline to revise these regulations to
include that term and have continued to
use the term ‘‘EIS provider’’ when
referring to entities other than the lead
agency who are responsible for assisting
the State in implementing the part C
statewide early intervention system. Regarding use of the terms
participating agency, LEA, and SEA in
these regulations, these terms are
defined in §§ 303.404(c), 303.23, and
303.36, respectively, and are terms used throughout these regulations and
specifically in § 303.401(b) through
(d)(1). Thus, we decline to make the
change requested by the commenter.
Changes: None.
Comment: Several commenters
supported § 303.401(e) while many
other commenters opposed it stating
that it diminishes a family’s right to
confidentiality and decision-making
about their child. These commenters
urged the Department to require a lead
agency to obtain parental consent prior
to disclosing to an LEA or SEA the
information identified in § 303.401(d)(1)
as it is personally identifiable
information. Similarly, one commenter
requested that the opt-out requirement
in § 303.401(e) be changed to an ‘‘opt-
in’’ policy. Discussion: Section 303.401(e)
permits a lead agency to adopt an opt-
out policy under section 637(a)(9) of the
Act and § 303.209(b)(1)(ii). An opt-out
policy requires the lead agency and EIS
providers, prior to disclosing the limited
information identified in § 303.401(d)(1)
to the LEA where the child resides or to
the SEA, to inform the child’s parent
about the impending disclosure and
provide the parent with a specific time
period in which the parent may confirm
his or her decision to decline, or opt-out
of, the disclosure of such information
about his or her child. Permitting States to adopt an opt-out
policy, rather than opt-in policy, which
would require the lead agency to obtain
affirmative parental consent before
disclosure of the limited information
identified in § 303.401(d)(1) to the LEA
or SEA, allows States the flexibility to
balance the privacy interests of parents
of children receiving part C services and
the lead agency’s, SEA’s, and LEA’s
respective responsibilities to identify
children potentially eligible for services
under part B of the Act, and to ensure
a smooth transition from the State’s part
C program to its part B program.
Parents, as well as other stakeholders
and members of the public have an
opportunity to provide input when the
State circulates its LEA notification
policies for public participation as
required in § 303.208(b). Changes: None.
Definitions (§ 303.403) Comment: Two commenters requested
that the term education records be
changed to the term early intervention
records because use of the term
‘‘education’’ is not consistent with part
C of the Act and could be interpreted
incorrectly by insurance companies and
Medicaid concerning payment for
services. One commenter also expressed
concern that the term education records
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is used inconsistently throughout the
regulations (see §§ 303.405(a) and (b),
303.406, 303.407, 303.408, 303.410, and
303.411).
Discussion: We agree that the term
early intervention records should
replace the term education records in
§ 303.403 and have revised references to
education records to read early
intervention records in these
regulations. Changes: We have revised
§ 303.403(b) to define early intervention
records instead of education records
and clarified that the term includes all
records regarding a child that are
required to be collected, maintained, or
used under part C of the Act and the
regulations in this part. Comment: One commenter expressed
concerns that the definitions in
§ 303.403, while applicable to programs
under part B of the Act, may not be
appropriate for programs under part C of
the Act. Discussion: We agree that the
definitions of education records and
participating agency in § 303.403 could
be amended to more appropriately
apply to part C of the Act. As noted
previously, we have removed the term
education records in § 303.403(b) and
replaced it with the term early
intervention records. Additionally, we have amended the
definition of participating agency in
§ 303.403(c) to mean any individual,
agency, entity, or institution that
collects, maintains, or uses personally
identifiable information to implement
the requirements in part C of the Act
and the regulations in this part with
respect to a particular child. Participating agency specifically
includes the lead agency and EIS
providers that provide any part C
services, including service coordination,
evaluations and assessments, and other
part C services. We are adding this
provision to distinguish between those
primary referral sources that perform
primarily a child find function and
those entities that serve as funding
sources only. We have clarified that this
term does not include primary referral
sources (unless they are also EIS
providers), or public agencies (such as
the State Medicaid or CHIP program), or
private entities (such as private
insurance companies) that act solely as
funding sources for part C services. Changes: We have revised the
definition of participating agency in
§ 303.403(c) to provide that this term
also includes an entity that collects,
maintains, or uses personally
identifiable information and that this
information is collected, maintained, or
used ‘‘to implement the requirements in part C of the Act and the regulations in
this part.’’ We have added a provision
that an EIS provider includes a provider
of part C services, including service
coordination, evaluations, and
assessments, and other part C services.
Additionally, we have added a
provision specifically stating that
primary referral sources, or public
agencies (such as the State Medicaid or
CHIP program) or private entities (such
as private insurance companies) that act
solely as funding sources for part C
services are not considered a
participating agency.
Notice to Parents (§ 303.404)
Comment: Some commenters
requested that the confidentiality
requirements in these regulations reflect
the parallel requirements in the part B
regulations, where appropriate. One
commenter requested clarification as to
when the general notice and
confidentiality requirements under part
C of the Act apply. One commenter
recommended adding a requirement
that the notice to parents in § 303.404 be
provided in the native language of the
parent. Discussion: We agree that it would be
helpful for lead agencies under part C of
the Act to know when the general notice
requirement applies. Requiring the lead
agency to provide parents with notice of
its general confidentiality policies and
procedures, including document
retention and destruction procedures,
when a child is referred under part C of
the Act ensures that parents are aware
of the nature and scope of their rights
under these policies and procedures.
States may choose to provide this
general notice at additional appropriate
times, such as annual IFSP meetings,
but we have not required that it be
provided at each such meeting because
of the burden this would place on the
State and because the prior written
notice requirements in § 303.421 already
require a summary of each of the
procedural safeguards. Additionally, the content of the notice
should include a description of the
extent that the notice is available in the
native languages of the various
population groups in a State. We have
added language to § 303.404 that reflects
that requirement, which is also in 34
CFR 300.612 of the part B regulations.
The prior written notice and procedural
safeguards notice requirements in
§ 303.421(c)(1)(ii) require that the child-
specific notice be in the parent’s native
language or other mode of
communication used by the parent,
unless it is clearly not feasible to do so,
and that the notice include a description
of the procedural safeguards, including confidentiality requirements under
subpart C of this part.
Changes: We have added the phrase
‘‘when a child is referred under part C
of the Act’’ in the introductory text in
§ 303.404. We also have added a new
paragraph (d) to § 303.404 requiring that
the notice to parents include a
description of the extent that the notice
is given in the native languages of the
various population groups in the State. Comment: A few commenters
recommended revising § 303.404(a) to
require the notice to parents, concerning
the confidentiality provisions under the
Act, to be more applicable to part C of
the Act. Discussion: Section 303.404(a)
provides that the notice include a
description of the children on whom
personally identifiable information is
maintained, the types of information
sought, the methods the State intends to
use in gathering the information
(including the sources from which the
information is gathered), and the uses to
be made of the information. For
example, children on whom personally
identifiable information is maintained
include children with developmental
delays or diagnosed conditions, or, if
applicable, children at risk for
developmental delays. The types of
information sought include
developmental, medical, educational,
and other information. The specific
sources from which information is
gathered would include primary referral
sources in the State, and the uses to be
made of the information would include
the identification, evaluation, and
provision of early intervention services
to infants and toddlers with disabilities.
Thus, § 303.404(a) sufficiently relates to
the personally identifiable information
maintained, collected, and used under
part C of the Act. Changes: None.
Access Rights (§ 303.405) Comment: Commenters from several
lead agencies recommended requiring
lead agencies to respond to parents’
requests to inspect and review their
child’s early intervention records within
10 calendar days of the request, instead
of 20 days, because it is important for
parents to have these records available
in the event there is a pending due
process hearing (that must be resolved
within a 30-day timeline as required in
§ 303.430(d)(1)). Discussion: We agree that a 10-day
deadline would be more appropriate to
ensure access to early intervention
records when parents have filed a
request for a due process hearing. We
have changed the timeline for agency
compliance with a parent’s request to
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inspect and review records to 10
calendar days after the parent makes the
request. (The term day is defined as
‘‘calendar day unless otherwise
indicated’’ in § 303.9.) Changes: We have changed
§ 303.405(a) to reflect that an agency
must comply with a parent’s request to
inspect and review records in no case
more than 10 days after the request has
been made. Comment: One commenter
recommended that the ‘‘shall presume’’
language in § 303.405(c) be revised to
align with the analogous part B
requirement in 34 CFR 300.613(c),
which provides that an agency ‘‘may
presume’’ that a parent has the authority
to inspect and review his or her child’s
records. Discussion: We agree with the
commenter and have changed
§ 303.405(c) to be consistent with 34
CFR 300.613(c) in the part B regulations. Changes: The word ‘‘shall’’ has been
removed and replaced with the word
‘‘may’’ in § 303.405(c).
Fees for Records (§ 303.409)
Comment: One commenter
recommended including in § 303.409 a
provision to allow parents to receive a
copy of their child’s records upon
request, thereby facilitating the role of
parents as full and equal participants in
the IFSP process. Another commenter
expressed concern about the length of
time that may lapse between a child’s
IFSP meeting and the time that the
parent actually receives a copy of the
child’s IFSP. This commenter requested
that the regulations require that the
parent be given a copy of his or her
child’s IFSP at the conclusion of every
IFSP meeting. Discussion: We agree with
commenters that in order to help
parents to be full and equal participants
in the IFSP process parents must receive
a copy of their child’s evaluation,
assessments, and IFSP. Thus, we have
added in new § 303.409(c) that each
evaluation, assessment, and IFSP must
be provided to the parent. Additionally, under § 303.521(b), the
lead agency must ensure that specific
activities, including conducting
evaluations and assessments,
developing and reviewing IFSPs, and
implementing procedural safeguards,
are provided at no cost to parents. Thus,
we have added in new § 303.409(c) the
requirement that these records be
provided to parents at no cost.
Requiring States to provide a copy of
evaluations, assessments, and IFSPs to
parents, from the child’s early
intervention record, should not be a
burden to States. As a standard practice, most States already provide these
documents at no cost to parents. The
requirement in new § 303.409(c) is
comparable to the evaluation and IEP
documents that must be provided to
parents at no cost under the provisions
in 34 CFR 300.306(a)(2) and 300.322(f)
of the part B regulations.
Concerning the request that the IFSP
be provided at the conclusion of the
IFSP meeting, we decline to add this
specific timeline but agree that it is
important to specify when these
documents must be provided. Thus, we
also have added in new § 303.409(c) that
a copy of each evaluation, assessment of
the child, family assessment, and IFSP
must be provided to the parent as soon
as possible after each IFSP meeting. Changes: We have added new
§ 303.409(c), which requires that a
participating agency must provide at no
cost to the parent, a copy of each
evaluation and assessment of the child,
family assessment, and IFSP as soon as
possible after each IFSP meeting. We
also have revised the heading of
§ 303.409 to add ‘‘for records’’ after
‘‘Fees’’, and added a clause to
§ 303.409(a) explaining that the right to
charge fees does not apply to documents
that must be provided and are
mentioned in § 303.409(c).
Amendment of Early Intervention
Records Under §§ 303.410, 303.411, and
303.412
Comment: One commenter
recommended adding references to the
family, in addition to the child, in
§§ 303.410 and 303.412(a), regarding a
parent’s right to amend information in
a child’s early intervention record if it
is inaccurate, misleading, or violates the
privacy or other rights of the child. Discussion: We agree that the
protections in §§ 303.410(a) and
303.412(a) and (b) should apply to
information about the parent as well as
the child, but do not agree that the right
to amend a record extends to
information about other family
members. This is because the definition
of personally identifiable information in
§ 303.29(d) includes a list of personal
characteristics or other information that
would make the child’s or parent’s
identity easily traceable. Therefore, we
have added the reference to the parent,
but not to the family. For the same
reasons, we have added this reference to
the parent in § 303.411. Changes: We have added a reference
to the parent in §§ 303.410(a), 303.411,
and 303.412(a) and (b).
Opportunity for a Hearing (§ 303.411)
Comment: A few commenters stated
that the requirements in § 303.411 are inconsistent with both the hearing
procedures in § 303.413 and the relevant
part B requirements in 34 CFR 300.619,
which require a hearing to challenge
information in a child’s record to be
conducted in accordance with the
procedures under FERPA.
Discussion: We have clarified
§ 303.411 by providing that the parent
may request a due process hearing if a
State has adopted the part C due process
hearing procedures that are referenced
in § 303.430(d)(1), provided that such
procedures meet the requirements of the
hearing procedures in § 303.413 that
comply with the FERPA regulations in
34 CFR 99.22. Thus, as suggested by the
commenter, the procedural options
available to parents would be consistent
with 34 CFR 300.619 of the part B
regulations. We believe permitting this
option to parents provides parents with
the benefits of the 30-day timeline if the
State has adopted part C due process
hearings under § 303.430(d) without
imposing an additional burden on States
that already have such procedures in
place. Changes: We have added to § 303.411
a reference to § 303.413 and a
parenthetical regarding the hearing
requirements under the FERPA
regulations in 34 CFR 99.22.
Consent Prior to Disclosure or Use
(§ 303.414)
Comment: A few commenters
recommended retaining as much of
current § 303.460, regarding
confidentiality of information, as is
consistent with the Act. Discussion: Current § 303.460
references the confidentiality provisions
in the part B regulations that were in
effect prior to the publication of the
amended part B regulations published
in August 14, 2006; the Note following
current § 303.460 indicates that because
the part B regulations incorporate the
FERPA regulations, FERPA also applies
to the part C regulations. Consistent
with the commenters’ requests, we have
removed the general citation to the part
B regulations and FERPA and added in
§ 303.414(b)(2) the exceptions to the
FERPA consent requirement in 34 CFR
99.31(a) as specific exceptions (where
applicable to part C) to the parental
consent requirement in these part C
regulations. We have also added a
provision requiring compliance with the
additional pertinent conditions in 34
CFR 99.32 through 99.39. Changes: We have incorporated as
specific exceptions to the parental
consent requirement in § 303.414(b)(2)
of these part C regulations the specific
exceptions to the written parental
consent requirement in 34 CFR 99.31(a)
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of the FERPA regulations (where
applicable to part C), reference to the
pertinent conditions in 34 CFR 99.32
through 99.39, and added appropriate
modification provisions in
§ 303.414(b)(2)(i) through (b)(2)(vii).
Comment: One commenter expressed
concern that sometimes service
providers do not disclose information
that parents have given consent to
disclose, and suggested that service
providers should be required to disclose
documents or information when parents
have consented to the disclosure. Discussion: It is unclear what types of
documents or information the
commenter is referencing or the
circumstances under which an EIS
provider might not disclose the
information for which a parent has
given consent. However, there may be
circumstances when the lead agency or
an EIS provider may not have the
authority to provide documents in the
child’s early intervention record to a
third party, even after receiving parental
consent for disclosure of personally
identifiable information. For example, a
lead agency or EIS provider may not
have the authority to disclose third-
party medical records. In these cases,
the lead agency or EIS provider would
instruct the parent to make such a
request to the third party for the
document or information. Changes: None.
Comment: A few commenters
recommended that the regulations
clarify the exception that applies to
Protection and Advocacy (P&A)
agencies seeking access to information
pursuant to their authority under the
Protection and Advocacy for Individuals
with Mental Illness Act (42 U.S.C.
10801, et seq.). Other commenters
opposed disclosing information to P&A
agencies and questioned why only this
requirement is included in these
regulations when other statutory
authorities also may apply to part C
records and why this provision is not in
the part B regulations. One commenter
stated that this requirement conflicts
with the FERPA and HIPAA
confidentiality provisions. Discussion: We agree with the
commenters that it would not be
appropriate to include language in the
part C regulations concerning the issue
of limited disclosures of personally
identifiable information in early
intervention records that may be sought
by P&A agencies and have removed
§ 303.414(d). As the commenters stated, there are a
number of statutory authorities that may
apply to part C records. Given the
variety of factual circumstances to be
considered—including the uncertainty as to what personally identifiable
information will be sought about infants
and toddlers with disabilities and the
varying context and purposes under
which the information may be sought—
regulating could not address the specific
circumstances in each particular case.
Changes: We have removed
§ 303.414(d). Comment: A commenter requested
that the Department define in § 303.414
the term participating agency. Discussion: The term participating
agency as used in § 303.414 is defined
in § 303.403(c). Changes: None.
Safeguards (§ 303.415) Comment: One commenter agreed
with the provisions in § 303.415(a)
(regarding the protection of personally
identifiable information at the
collection, maintenance, use, storage,
disclosure, and destruction stages), (b)
(requiring an official to be responsible
for ensuring the confidentiality of
personally identifiable information),
and (c) (training for persons collecting
and using personally identifiable
information), but suggested that the
requirements in these paragraphs may
be inconsistent with § 303.415(d). Discussion: Section 303.415(d)
requires that each participating agency
maintain a current listing of the names
and positions of agency employees who
may have access to personally
identifiable information and reflects
current, long-standing Department
policy and regulations. Paragraphs (a)
through (c) of this section are consistent
with paragraph (d) because paragraph
(d) applies to the individuals listed in
paragraph (c) of this section. Paragraph
(d) of this section further safeguards the
confidentiality of these records by
preventing access to the records by
those individuals not listed. Changes: None.
Comment: One commenter suggested
that § 303.415(d) is unnecessary because
records are generally maintained
electronically in order to be consistent
with the FERPA and HIPAA
requirements. Discussion: This requirement is
necessary because the public has a right
to know who may have access to
personally identifiable information
about their child and family. The
method a participating agency uses to
implement the provisions in
§ 303.415(d) is best left to the
participating agency to determine. The
agency must maintain, for public
inspection, a current listing of the
names and positions of those employees
within the agency who may have access
to personally identifiable information, regardless of whether such information
is maintained electronically or as a
written record.
Changes: None.
Destruction of Information (§ 303.416) Comment: None.
Discussion: For consistency within
the confidentiality regulations that
apply to participating agencies in
§§ 303.402 through 303.417, we have
replaced the reference to ‘‘public
agency’’ in § 303.416(a) with the term
‘‘participating agency.’’
Changes: We have replaced the
reference to ‘‘public agency’’ with
‘‘participating agency’’ in § 303.416(a).
Comment: A few commenters
expressed concern that we have
included statutory references to GEPA
in § 303.416(a), but these references are
not included in the corresponding part
B provisions in 34 CFR 300.624. The
commenters requested that for
consistency these citations be removed
from § 303.416(a) or be added to the
regulations under part B of the Act.
Discussion: SEAs are aware of the
applicability of GEPA to the part B
program. Therefore, it is not necessary
to add these references to the part B
regulations. However, there may be lead
agencies that are unaware of the
applicability of GEPA to the part C
program; accordingly, it is important
that § 303.416(a) identify the specific
citations to those GEPA and EDGAR
provisions concerning the maintenance,
use, disclosure, and destruction of
records. Thus, we have revised the
citation to GEPA provisions to refer to
20 U.S.C. 1232f, which contains fiscal
recordkeeping requirements. Lead
agencies that are not SEAs may be
similarly unfamiliar with the provisions
in parts 76 and 80 of EDGAR that apply
to the early intervention records,
including, for example, the
recordkeeping requirements in 34 CFR
80.42(b).
Changes: We have revised the citation
to GEPA provisions in § 303.416 to refer
to 20 U.S.C. 1232f.
Enforcement (§ 303.417)
Comment: One commenter
recommended revising the language in
§ 303.417 because the proposed
phrasing was awkward.
Discussion: We agree that § 303.417
should be clarified. We have amended
§ 303.417 to clarify that the enforcement
policies and procedures that a State
must have in effect are consistent with
§§ 303.401 through 303.417, and
include sanctions and the right to file a
State complaint under §§ 303.432
through 303.434.
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Changes: We have amended § 303.417
to indicate that the lead agency must
have in effect the policies and
procedures, including sanctions and the
right to file a complaint under
§§ 303.432 through 303.434, that a State
uses to ensure that its policies and
procedures, consistent with §§ 303.401
through 303.417, are followed and that
the requirements of the Act and the
regulations in this part are met.
Parental Consent and Ability To Decline
Services (§ 303.420)
Comment: Some commenters
requested that the Office of Special
Education and Rehabilitative Services
(OSERS) provide clarification regarding
parental consent for the assessments
used to report on child outcomes in the
SPP/APR. One commenter requested
that the OSERS September 2006 (revised
October 2007) frequently asked
questions (FAQ) document located at
http://www.rrfcnetwork.org/content/
view/409/47/#cfiscal be used as a
reference point for clarification
regarding parental consent for the
assessments used to report child
outcomes. Discussion: If the lead agency collects,
uses, or maintains information about an
eligible child to meet the SPP/APR
reporting requirements of the
Department under part C of the Act,
including the required reporting on
child outcomes (which information is
reported based on aggregate numbers of
children, and not by individual child),
generally, the information is not
personally identifiable provided that the
State has addressed any confidentiality
constraints as a result of small data cells
and, thus, prior written parental consent
would not be required. However, as
noted in the FAQ document referenced
by the commenter, prior written
parental consent is required under
§ 303.420 if the collection of outcome
information is a part of the lead agency’s
evaluation to determine initial or
continuing eligibility of a child in the
part C program. In this circumstance,
States must provide prior written notice
to the parents under § 303.421 and, if
applicable, obtain parental consent for
evaluation as required in § 303.420. Changes: None.
Comment: One commenter stated that
requiring parental consent in § 303.420
to administer screening procedures in
§ 303.320 may dissuade some parents
from allowing a developmental
screening to be conducted. Discussion: It is important for parents
to be able to determine whether their
child should receive a developmental
screening. We have added in
§ 303.420(a)(1), regarding parental consent for screening, a reference to the
screening provisions in § 303.320.
Changes: We added, in
§ 303.420(a)(1), a reference to § 303.320. Comment: A few commenters
requested that the word ‘‘initial’’ in
current § 303.404 be reinserted into
§ 303.420(a)(2) before the words
‘‘evaluation and assessment.’’ Discussion: Consistent with section
639(a)(3) of the Act and the current
policies and practice in the vast
majority of States, the Department’s
position is that parental consent is
required for all evaluations, including
an initial evaluation and assessment of
a child and all subsequent evaluations
and assessments of a child. To clarify
this point, we have amended the
regulations to indicate that the consent
provisions in § 303.420(a)(2) apply to all
evaluations and assessments of a child. Changes: We have added the word
‘‘all’’ to § 303.420(a)(2). Comment: None.
Discussion: The Department received
a large number of comments on
proposed § 303.420(a)(4) as it relates to
the lead agency obtaining parental
consent prior to accessing public
benefits or insurance. We have
addressed those comments in the
Analysis of Comments and Changes for
subpart F of this part. Changes: We have revised
§ 303.420(a)(4) to clarify that the lead
agency must ensure that parental
consent is obtained before public
benefits or insurance or private
insurance is used if such consent is
required under § 303.520. Comment: One commenter
recommended that § 303.420, regarding
parental consent and declining services,
be amended to specifically reflect the
language in part C of the Act. The
commenter stated that there are inherent
differences between part C and part B of
the Act and that the part B requirements
in 34 CFR 300.300(a)(3)(i) should not be
adopted without revision. Specifically,
the commenter pointed out that
§ 303.420(c)(1), which permits a lead
agency to use the due process hearing
procedures to challenge a parent’s
refusal to consent to an initial
evaluation and assessments of a child
for early intervention services, should
not apply to part C because
participation in early intervention
services is voluntary. The commenter
recommended removing this paragraph. Discussion: We agree with the
commenter that the participation of
infants and toddlers with disabilities
and their families in the part C program
is voluntary and a parent may refuse an
initial evaluation or assessment without
the lead agency being able to use the due process hearing procedures under
this part or under the regulations under
part B of the Act to challenge the
parent’s refusal.
Additionally, because the lead agency
may not use due process hearing
procedures to challenge a parent’s
refusal to provide consent required
under this part, we have added in new
§ 303.420(c) that such due process
hearing procedures may not be used to
challenge the parent’s refusal to provide
any consent that is required under
paragraph (a) of this section. Therefore,
we have amended § 303.420(c)
accordingly. Changes: We have amended
§ 303.420(c) to indicate that a lead
agency may not use the due process
hearing procedures under this part or
part B of the Act to challenge a parent’s
refusal to provide any consent that is
required under paragraph (a) of this
section. Comment: None.
Discussion: For consistency with
§ 303.414 and internal consistency
within § 303.420, we refer to the
confidentiality exceptions in § 303.414
instead of referring to the exchange of
personally identifiable information in
§ 303.401. Changes: We have revised
§ 303.420(a)(5) to read ‘‘Disclosure of
personally identifiable information
consistent with § 303.414.’’
Prior Written Notice and Procedural
Safeguards Notice (§ 303.421)
Comment: A few commenters
objected to the phrase ‘‘reasonable time’’
in § 303.421, which requires that prior
written notice be given to parents a
reasonable time before the lead agency
under part C of the Act or an EIS
provider proposes, or refuses, to take
certain actions concerning their child.
One commenter requested that
‘‘reasonable time’’ be replaced with a
specific timeframe, for example, five
days. Discussion: Quantifying the phrase
‘‘reasonable time’’ in § 303.421(a) would
be inappropriate because what
constitutes a reasonable time may vary
based on the individual circumstances
of each case. However, we would expect
a lead agency to provide notice under
§ 303.421 within a timeframe that
allows the parent time to respond to the
notice before the lead agency takes, or
refuses to take, the actions listed in
§ 303.421(a). Changes: None.
Comment: One commenter
recommended adding language to
§ 303.421(c) to require that the prior
written notice and procedural
safeguards notice be provided in braille
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to individuals who are blind or visually
impaired.
Discussion: The commenter’s
concerns are addressed in
§ 303.421(c)(1)(ii), which requires that
the notice be provided in the native
language of the parent as the term native
language is defined in § 303.25. Section
303.25(b) requires that for an individual
who is blind or visually impaired the
term native language means the mode of
communication that is normally used by
the individual (such as sign language,
braille, or oral communication).
Therefore, we decline to revise the
regulation as requested by the
commenter. Changes: None.
Surrogate Parents (§ 303.422) Comment: A few commenters
recommended amending the language in
§ 303.422, concerning surrogate parents,
to align the language with the parallel
provisions in 34 CFR 300.519 of the part
B regulations. Discussion: Section 303.422,
concerning surrogate parents, is
primarily aligned with the requirements
in sections 639(a)(5) of the Act and
reflects many of the parallel provisions
regarding surrogate parents in section
615(b)(2) of the Act and 34 CFR 300.519
of the part B regulations. Section
303.422 does not include the language
from 34 CFR 300.519(a)(4) and (f) of the
part B regulations because these
provisions are not applicable to the part
C program. Specifically, the language in
the part B regulations references an
unaccompanied homeless youth under
the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11434a(6)).
The language from 34 CFR 300.519(c) of
the part B regulations, although slightly
modified for clarity, is applicable to the
part C program. We have amended
§ 303.422 to add a new paragraph (c) to
state that ‘‘in the case of a child who is
a ward of the State, the surrogate parent,
instead of being appointed by the lead
agency under paragraph (b)(1) of this
section, may be appointed by the judge
overseeing the infant or toddler’s case
provided that the surrogate parent meets
the requirements in paragraphs (d)(2)(i)
and (e) of this section.’’ Changes: We have added new
paragraph (c) and renumbered the
subsequent paragraphs accordingly. Comment: A few commenters
requested that the Department clarify
the phrase ‘‘cannot locate a parent’’ in
§ 303.422(a)(2), which requires each
lead agency or other public agency to
ensure that the rights of a child are
protected when no parent can be
located. One commenter pointed out
that the language in § 303.422(a)(2) is different from the language in current
§ 303.406(a)(2), which states that each
lead agency must ensure that the rights
of a child are protected when the public
agency cannot discover the whereabouts
of a parent. The commenter asked
whether there is a distinction between
the current requirements and those in
§ 303.422(a)(2) and whether the
Department is changing its position.
Discussion: Section 303.422(a)(2) is
substantively unchanged from current
§ 303.406(a)(2). Although we used the
simpler term ‘‘locate a parent’’ in place
of the term ‘‘discover the whereabouts
of a parent,’’ we have not changed the
meaning of the regulations, and the
regulations continue to require that the
lead agency make reasonable efforts to
discover the whereabouts of a parent
before assigning a surrogate parent,
consistent with sections 615(b)(2)(A)
and 639(a)(5) of the Act. Changes: None.
Comment: A few commenters
recommended expanding the
requirement in § 303.422(b)(2) to require
that for children who are wards of the
State or placed in foster care, a lead
agency must consult with all
individuals involved with the care of
the child, including but not limited to,
the child’s care giver, appointed
guardian, social worker, and attorney,
when appointing a surrogate parent. The
commenters stated this would ensure a
fully informed decision when
appointing a surrogate parent for
children who are wards of the State or
placed in foster care. Discussion: Section 303.422(b)(2)
requires the lead agency, when
determining whether and who to
appoint as a surrogate parent for
children who are wards of the State or
placed in foster care, to consult with the
public agency with whom care of the
child has been assigned. The
individuals involved in implementing
the provisions in § 303.422 for children
who are wards of the State or placed in
foster care will vary on a case-by-case
basis. The regulations as written provide
the flexibility necessary for a lead
agency and the public agency, as part of
the consultation process in § 303.422, to
decide who should be involved in
implementing the requirements of this
section. Changes: None.
Comment: One commenter stated that
a lead agency should not consult with
a child welfare agency with regard to
assigning a surrogate parent, as required
in § 303.422(b)(2), because the foster
parent is the parent and can make
decisions. Discussion: The surrogate parent
provisions in § 303.422 are only relevant if a parent is unavailable. If a foster
parent meets the definition of parent
in
§ 303.27 there would be no need for a
surrogate parent to be assigned and the
consultation provision in § 303.422(b)(2)
would not apply. Changes: None.
Comment: A few commenters
recommended adding language
specifying that a surrogate parent cannot
be a person involved in the education or
care of the child. Discussion: We agree that this
additional language would provide
useful clarification and have amended
the regulations to add language to
§ 303.422(d)(2)(i) clarifying that an
employee of a public agency that
provides education or care to a child or
any family member of the child cannot
be a surrogate parent. Changes: We have amended
§ 303.422(d)(2)(i) to expressly prohibit
any employee of the lead agency or any
other public agency or EIS provider that
provides early intervention services,
education, care, or other services to a
child or any family member of the child
from serving as a surrogate parent for
that child. Comment: One commenter
recommended adding language to
§ 303.422 to indicate that a lead agency
may not remove a surrogate parent
based upon a disagreement with a
surrogate parent or because a surrogate
parent refuses to consent to the
provision of early intervention services. Discussion: The Act is silent on when
or how a surrogate parent can be
removed. However, a lead agency has a
responsibility to ensure that a surrogate
parent is carrying out his or her
responsibilities; therefore, there are
some circumstances when removal may
be appropriate. A mere disagreement
with the decisions of a surrogate parent
about appropriate services or
placements for a child, however,
generally would not be sufficient to give
rise to a removal, as the role of a
surrogate parent is to represent the
interests of the child, which may not be
the same as the interests of the public
agency. We do not think a regulation is
necessary because these circumstances
may be resolved under State law.
Additionally, the rights of an infant or
toddler with a disability are adequately
protected by Titles II and VI of the ADA,
which prohibit retaliation or coercion
against any individual who exercises
their rights under Federal law for the
purpose of assisting children with
disabilities, to protect the child’s rights
under this statute. Changes: None.
Comment: A few commenters
recommended that we establish a
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timeline, such as 30 days, for the lead
agency or other public agency to
identify and assign a surrogate parent.
Other commenters expressed concern
that significant delays will result in
cases where a surrogate parent must be
appointed in order to provide consent.
Discussion: We agree that a timeline
to assign a surrogate parent should be
included in these regulations and have
changed § 303.422 to require a lead
agency to make reasonable efforts to
ensure that a surrogate parent is
assigned not more than 30 days after the
public agency determines that a child
needs a surrogate parent. Given that the
development of infants and toddlers
quickly changes, identifying a surrogate
parent in a timely manner is important
to a child, prevents undue delays, and
aids the effective implementation of the
requirements of this part. Additionally,
a 30-day time frame to identify a
surrogate parent is consistent with 34
CFR 300.519(h) of the part B regulations
and establishes a timeframe in which a
surrogate parent must be appointed,
thus preventing undue delays. We have
revised § 303.422 accordingly. Changes: We have added paragraph
§ 303.422(g) to require that the lead
agency make reasonable efforts to
ensure that a surrogate parent is
assigned not more than 30 days after a
public agency determines that the child
needs a surrogate parent.
State Dispute Resolution Options
(§ 303.430)
Comment: One commenter requested
that we retain Note 2 from current
§ 303.420, concerning the importance of
establishing State administrative
procedures that result in speedy
resolution of complaints because an
infant’s or toddler’s development is so
rapid that undue delay could be
potentially harmful. Discussion: We agree with the
commenter that Note 2, following
current § 303.420, is important and have
included the substance of that note in
the timelines in these regulations. For
States that choose to adopt part C due
process procedures, § 303.437(b)
requires each lead agency to ensure that,
not later than 30 days after the receipt
of a parent’s due process complaint, the
due process hearing is completed and a
written decision is mailed to each of the
parties. For States that choose to adopt
part B due process procedures,
§ 303.440(c) requires the lead agency to
adopt either a 30- or 45-day timeline,
subject to § 303.447(a), for the resolution
of due process complaints.
Additionally, the requirements for State
complaint procedures in § 303.433(a),
provide that, within 60 days after a complaint is filed, the lead agency must
resolve the complaint. Therefore, it is
not necessary to retain in § 303.430
verbatim the language of note 2 in
current § 303.420.
Changes: None.
Comment: Several commenters
expressed concerns with the dispute
resolution options in § 303.430. A few
commenters stated that the options do
not fit into the part C program because
the child’s time in the program is
limited. The commenters stated that the
30-day timeline for the resolution
period and the 45-day timeline for the
due process hearing in States that
choose to adopt part B due process
procedures under section 615 of the Act
are too long.
Discussion: Section 303.430 requires
each statewide system to include
procedures to resolve complaints
through mediation, State complaint
procedures, and due process
procedures. The concerns about the
timelines for the resolution period and
the due process hearing in States that
choose to adopt part B due process
procedures under section 615 of the Act,
are more fully addressed in the Analysis
of Comments and Changes in response
to the comments received on § 303.440.
Changes: None.
Comment: None.
Discussion: We have revised the
introductory text of § 303.430(d) to
remove the phrase ‘‘in addition to
adopting the procedures in paragraphs
(b) and (c) of this section’’ because these
requirements do not need to be
referenced in paragraph (d) and to do so
would be redundant with the
requirements already cited in
paragraphs (b) and (c) of § 303.430.
Changes: We have removed from
§ 303.430(d) the phrase ‘‘in addition to
adopting the procedures in paragraphs
(b) and (c) of this section.’’
Comment: Many commenters
expressed concern that the language in
proposed § 303.430(e)(3) relates not to
pendency, but to the requirement in
section 635(c)(2)(D) of the Act and
§ 303.211(b)(4) that IFSP services
continue to be provided to a toddler
with a disability until a part B eligibility
determination is made for that child in
a State that elects to make part C
services available beyond age three
under § 303.211. A few other
commenters indicated that proposed
§ 303.430(e)(3) conflicts with sections
607(a) and (b) and 615(j) of the Act and
the Third Circuit decision in Pardini v.
Allegheny Intermediate Unit, 420 F.3d
181 (3d Cir. 2005), cert. denied, 126
S.Ct. 1646 (2006). One commenter,
recommended referencing part B eligibility as well as ineligibility in
proposed § 303.430(e)(1).
Discussion: We agree with
commenters who noted that the
requirement in proposed § 303.430(e)(3)
applies only to those States that elect to
offer services under § 303.211 and is not
a pendency provision and, thus, we
have moved the substance of proposed
§ 303.430(e)(3) to § 303.211(b)(4). These
comments and the resulting changes are
fully addressed in the Analysis of
Comments and Changes for
§ 303.211(b)(4) in subpart C of this part. Changes: We have moved the
substance in § 303.430(e)(3) to
§ 303.211(b)(4).
Mediation (§ 303.431)
Comment: One commenter requested
that the Department clarify the phrase
‘‘including matters arising prior to the
filing of a due process complaint’’ as
used in § 303.431(a) to make clear when
mediation may be used by parties. Discussion: We agree that § 303.431(a)
needs clarification regarding when
mediation is available. Section 303.431
incorporates sections 639(a)(8) and
615(e)(1) of the Act, and requires lead
agencies to ensure that procedures are
established and implemented to allow
parties to resolve disputes involving any
matter under part C of the Act through
a mediation process, including matters
arising prior to the filing of a due
process complaint. Thus, under
§ 303.431 parties to disputes may
request mediation at any time to resolve
any matter arising under this part,
regardless of whether a due process
complaint or a State complaint is filed.
We have amended § 303.431 to
expressly provide that mediation may
be used ‘‘at any time.’’ Changes: We have added the phrase
‘‘at any time’’ to the end of § 303.431(a). Comment: One commenter requested
that the phrase ‘‘parent’s right to a due
process hearing’’ in current
§ 303.419(b)(1)(ii) be maintained in
§ 303.431(b)(1)(ii). Discussion: We agree with the
commenter; the language ‘‘parent’s right
to a due process hearing’’ aligns with
section 615(e)(2)(A)(ii) of the Act and
should be used in these regulations. Changes: We have replaced the phrase
‘‘hearing on the parent’s due process
complaint’’ with the phrase ‘‘due
process hearing’’ in § 303.431(b)(1)(ii).
Adoption of State Complaint Procedures
(§ 303.432)
Comment: None.
Discussion: We have moved in
§ 303.432(b)(1) the modifying phrase
‘‘who is the subject of the complaint’’ to
follow the phrase ‘‘the infant or toddler
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with a disability’’ to clarify that it is the
infant or toddler with the disability who
is the subject of the complaint.
Changes: We have moved in
§ 303.432(b)(1) the phrase ‘‘who is the
subject of the complaint’’ to follow the
phrase ‘‘the infant or toddler with a
disability.’’ Comment: A few commenters
requested that § 303.432 explicitly state
that monetary reimbursement and
compensatory education are potential
remedies for State complaints. Discussion: The lead agency is
responsible for ensuring that all public
agencies within its jurisdiction meet the
requirements of the Act and its
implementing regulations. In light of the
lead agency’s general supervisory
authority under sections 634 and 635 of
the Act, the lead agency should have the
flexibility to determine the appropriate
remedies or corrective actions necessary
to resolve a complaint in which it has
determined that a public agency has
failed to provide appropriate services to
an infant or toddler with a disability,
including the award of compensatory
services or monetary reimbursement. To
make this clear, we have changed
§ 303.432(b)(1) to include compensatory
services and monetary reimbursement
as examples of corrective actions that
may be appropriate to address the needs
of an infant or toddler with a disability
who is the subject of a complaint and
the infant’s or toddler’s family. Changes: We have added in
§ 303.432(b)(1) the parenthetical ‘‘(such
as compensatory services or monetary
reimbursement).’’
Minimum State Complaint Procedures
(§ 303.433)
Comment: One commenter requested
that § 303.433 be amended to indicate
that either party may request an
extension of the 60-day time limit in
§ 303.433 when there are legitimate
reasons for such a request. Discussion: Section 303.433 provides
that each lead agency must include in
its State complaint procedures a time
limit of 60 days after a State complaint
is filed to complete its review of the
complaint and issue a written decision
to the complainant that addresses each
allegation in the complaint and that
contains findings of fact and
conclusions and the reasons for the lead
agency’s final decision. Section
303.433(b)(1) further provides that State
complaint procedures must permit an
extension of the 60-day time limit only
if exceptional circumstances exist with
respect to a particular complaint or the
parties to the complaint agree to extend
the time in order to engage in mediation
pursuant to § 303.433(a)(3)(ii). The lead agency determines when
there are exceptional circumstances
with respect to a particular complaint
that would justify an extension of the
60-day time limit in that complaint. A
lead agency may extend the 60-day time
limit due to exceptional circumstances,
such as a governmentwide shutdown, if
the lead agency needs additional
information under § 303.433(a)(2) or
(a)(3) and the relevant party is
unavailable due to hospitalization, or if
a parent complainant is unavailable due
to illness and cannot provide the
additional information under
§ 303.433(a)(2). Thus, we decline to add
the provision suggested by the
commenter. Changes: None.
Comment: One commenter stated that
setting aside any part of a State
complaint as provided in § 303.433(c)
may not be possible because the
information that was set aside may be
needed to complete the fact finding in
that complaint. Discussion: Section 303.433(c)
provides that if a State complaint is
received that is also the subject of a due
process hearing under § 303.430(d), or
contains multiple issues of which one or
more are part of a due process hearing,
the State must set aside any part of the
complaint that is being addressed in the
due process hearing until the
conclusion of that hearing. Although
§ 303.433(c) requires that matters raised
in both a State complaint and a due
process hearing be resolved only
through the due process hearing
procedures, that does not preclude fact
finding in relation to an issue in a State
complaint that is different from the
matters covered by the due process
hearing, even though the facts may be
related to the subject of, or another issue
in, a due process proceeding, because
§ 303.433(c) also provides that any issue
in the State complaint that is not a part
of the due process hearing must be
resolved through the State complaint
procedures. Changes: None.
Comment: One commenter
recommended that we not adopt
§ 303.433(c)(3), which requires that the
lead agency resolve a complaint alleging
that a lead agency or EIS provider failed
to implement a due process hearing.
The commenter stated that this
requirement could limit a lead agency’s
ability to contract with a third party for
State dispute resolution services
because third party contractors are often
given the authority to enforce due
process hearing decisions. Discussion: Nothing in the Act
prohibits the lead agency from
contracting with a third party for State dispute resolution services and
§ 303.433(c)(3) would not interfere with
a lead agency’s ability to enter into such
contracts. We note, however, in
accepting funds under this part, the lead
agency is responsible for the
administration of part C in the State and
the use of part C funds under sections
635(a)(10) and 637(a)(1) of the Act.
Therefore, the lead agency retains the
responsibility for full implementation of
the requirements of this part, including
the ultimate responsibility for the
implementation of State dispute
resolution decisions even if the services
are being carried out by a third party
under contract with the lead agency.
Changes: None.
Comment: None.
Discussion: To be consistent within
§ 303.433, we have added the term
‘‘public agency’’ to § 303.433(b)(1)(ii)
and (c)(3).
Changes: We have added the term
‘‘public agency’’ to § 303.433(b)(1)(ii)
and (c)(3).
Filing a Complaint (§ 303.434)
Comment: Several commenters
supported the requirement in
§ 303.434(c) that a State complaint must
allege a violation that occurred not more
than one year prior to the date that the
complaint is received. However, one
commenter recommended retaining the
requirement in current § 303.511(b)(1)
providing that the one-year timeline for
filing a State complaint may be
extended if the allegation that forms the
basis of the complaint is continuing or
recurring.
Discussion: A one-year timeline is
reasonable and will assist lead agencies
in ensuring the effective
implementation of State complaint
procedures and State part C programs.
Limiting a State complaint to an
allegation of a violation that occurred
not more than one year prior to the date
the lead agency receives the complaint
will ensure that problems regarding a
State’s part C program are raised and
addressed promptly. For these reasons,
we decline to revise § 303.434(c) as
requested by the commenter.
Changes: None.
Comment: Several commenters
expressed concern that § 303.434(d),
which requires the party filing the
complaint to forward a copy of the
complaint to the public agency or EIS
provider, breaches parent
confidentiality, may deter parents from
filing complaints and, at a minimum,
creates an additional barrier to filing a
State complaint. One commenter
recommended that § 303.434 specify the
action that would be taken if a
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complainant sends its State complaint
only to the lead agency.
Discussion: Section 303.434(d)
provides that the party filing the State
complaint must forward a copy of the
complaint to the public agency or EIS
provider serving the child at the same
time the party files the complaint with
the lead agency. Requiring the
complaint to be forwarded to the public
agency or EIS provider serving the child
at the same time the party files the
complaint with the lead agency enables
the public agency or EIS provider to be
informed of the issues in the State
complaint in order to provide an
opportunity for the voluntary resolution
of the complaint as set forth in
§ 303.433(a)(3). We believe that providing the public
agency or EIS provider with information
about the complaint enables the parties
to have the opportunity to resolve
disputes directly at the earliest possible
time and that this benefit outweighs the
minimal burden placed on the
complainant. Concerning the
commenters’ confidentiality concerns,
the information that is provided by the
complainant generally is information
that should already be available to the
public agency or EIS provider who is
responsible for providing services to a
particular child. In addition, the public
agency or EIS provider needs to know
the identity of the complainant and
relevant allegations in the complaint
(consistent with § 303.434) in order to
propose a resolution of the issues. Regarding the commenter’s request
that § 303.434(d) specify the
consequences for failure by the
complainant to forward a copy of the
complaint to the public agency or EIS
provider, we do not believe we need to
require specific consequences for
complainants for two reasons. First,
parents file few State complaints under
part C of the Act. States reported an
average of fewer than two State
complaints received by each lead
agency in FFY 2006. Second, under
§ 303.433(a)(3), the lead agency must
provide the public agency or EIS
provider an opportunity to respond to
the complaint, thereby implicitly
requiring the lead agency to inform the
public agency or EIS provider of the
relevant allegations in the complaint.
Thus, we decline to regulate as
requested by the commenter. Changes: None.
Appointment of an Impartial Due
Process Hearing Officer (§ 303.435) Comment: One commenter requested
that § 303.435 include the relevant part
B requirements in 34 CFR 300.511(c),
concerning the specific qualifications required for due process hearing
officers.
Discussion: Section 303.435 addresses
the qualifications for due process
hearing officers in States that choose to
adopt the part C due process procedures
under section 639 of the Act. These
qualifications are substantively the same
as those in 34 CFR 300.511(c) of the part
B regulations and the qualifications in
§ 303.443(c) for States that choose to
adopt the part B due process procedures
under section 615 of the Act. While the
language in § 303.435 and 34 CFR
300.511(c) is not identical, both sections
require a due process hearing officer to
have specific knowledge about the Act
and the proper conduct of legal
proceedings. Additionally, § 303.435
and 34 CFR 300.511(c) both require that
the due process hearing officer be
impartial using similar criteria regarding
personal and professional conflicts of
interest and employment status. Since
there is no substantive difference
between § 303.435 and 34 CFR
300.511(c), it is not necessary to amend
§ 303.435 as requested. Changes: None.
Comment: One commenter requested
that the Department clarify
§ 303.435(b)(2). Specifically, the
commenter asked whether
§ 303.435(b)(2) would permit an
employee of a lead agency who is an
administrative law judge, to act as a
hearing officer if that employee’s job is
to adjudicate disputes such as presiding
over due process hearings under the Act
and that employee is operating under a
system of mandates pursuant to a State
executive order designed to ensure his
or her independence and impartiality. Discussion: Section 303.435(b)(1)
provides that a hearing officer may not
be an employee of the lead agency or an
EIS provider involved in the provision
of early intervention services or care of
the child, and the hearing officer may
not have a personal or professional
interest that would conflict with his or
her objectivity in implementing due
process hearing procedures. Section
303.435(b)(2) provides that a person
who otherwise qualifies under
paragraph (b)(1) of this section is not an
employee of an agency for purposes of
the prohibition in § 303.435(b)(1) solely
because the person is paid by the agency
to implement the due process hearing
procedures. Under § 303.435(b)(2), the
sole fact that an administrative law
judge is an employee does not trigger
the prohibition in § 303.435(b)(1) if that
employee’s job as an administrative law
judge is to preside over due process
hearings under the Act and is operating
under a system of mandates pursuant to
a State executive order designed to ensure his or her independence and
impartiality.
Changes: None.
Parental Rights in Due Process Hearing
Proceedings (§ 303.436) Comment: A few commenters
requested that § 303.436 stipulate that
parents who pursue a due process
hearing are entitled to due process
hearing records, findings, and
conclusions at no cost to the parent. Discussion: We agree that a parent
involved in a due process hearing
should receive a copy of the
transcription of the hearing (i.e., a
record of the hearing), the findings of
fact, and the decisions at no cost. Changes: Section 303.436(b)(4) and
(b)(5) has been changed to specify that
a parent involved in a due process
hearing has the right to receive a written
or electronic verbatim transcription of
the hearing and a copy of the written
findings of fact and decisions at no cost
to the parent.
Convenience of Hearings and Timelines
(§ 303.437)
Comment: Several commenters
recommended that § 303.437, like 34
CFR 300.515(c) of the part B regulations,
allow hearing officers to grant specific
extensions of time beyond the period set
out in 34 CFR 300.515 of the part B
regulations at the request of either party. Discussion: Sections 303.435 through
303.438 are substantively unchanged
from current §§ 303.420 through
303.423, which prescribe a 30-day
timeline for due process proceedings in
States that adopt part C due process
procedures under section 639 of the Act.
However, we agree with the commenters
that extensions to the 30-day timeline in
§ 303.437(b) may be necessary under
certain circumstances (such as,
unavailability of witnesses, exceptional
child and family circumstances, and
pending evaluations and assessments).
Therefore, we have added a new
paragraph (c) to this section providing
that a hearing officer may grant specific
extensions of time beyond the periods
set out in paragraph (b) of this section
at the request of either party. Changes: We have added a new
§ 303.437(c), which provides that a
hearing officer may grant specific
extensions of time beyond the period set
out in paragraph (b) of this section at the
request of either party.
States That Choose To Adopt the Part B
Due Process Procedures Under Section
615 of the Act (§§ 303.440 Through
303.447)
Comment: A few commenters
recommended that the final regulations
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clarify that the requirements in
§§ 303.440 through 303.447 apply only
to States that choose to adopt the part
B due process procedures. Another
commenter stated that the designated
heading is confusing and may lead
States to believe that they must adopt
part B due process procedures.
Discussion: Grouping the
requirements for due process
procedures under two designated
headings in this subpart, ‘‘States That
Choose To Adopt the part C Due Process
Procedures under Section 639 of the
Act’’ and ‘‘States That Choose to Adopt
the part B Due Process Procedures
under Section 615 of the Act’’ clarifies
that a lead agency may elect to adopt for
the State either part C or part B
procedures. The regulations clearly
specify which due process procedures
apply when the lead agency has made
its choice under § 303.430(d). Changes: None.
Comment: One commenter suggested
that the regulations should encourage
States to be innovative and create a due
process hearing system that is
specifically designed for part C of the
Act, rather than adopt the part B due
process hearing procedures. Another
commenter suggested that allowing lead
agencies to adopt the part B due process
hearing procedures may not be
consistent with the Act. Discussion: We believe that providing
States the option of adopting the part B
due process procedures in lieu of using
the part C due process hearing
procedures is consistent with the Act.
States were provided this option under
the original part C regulations
promulgated in 1989 to implement the
Education of the Handicapped Act
amendments of 1986 (Pub. L. 99–457),
which established the early intervention
program for infants and toddlers with
disabilities. We have maintained this option in
these regulations because there are
advantages and disadvantages for
particular States to use the due process
procedures under part C as opposed to
part B of the Act. The vast majority of
States use, and will likely continue to
use, the part C due process procedures
in §§ 303.435 through 303.438 instead of
exercising the option to use the part B
due process procedures to resolve
disputes under part C of the Act. This
is in part because the part B due process
procedures in §§ 303.440 through
303.447 contain additional steps and
procedures. Finally, even in the
approximately 25 percent of States that
have adopted the part B due process
procedures, each State must update its
State policies and procedures to reflect
the requirements in §§ 303.440 through 303.447 and subject its updated policies
and procedures to the public
participation requirements in
§ 303.208(b).
In FFY 2006, approximately 15 States
reported exercising the option to adopt
the part B due process procedures while
the remaining 41 States (which include
the territories and outlying areas)
reported adopting the part C due
process procedures. In some of the 15
States that reported using the part B due
process procedures, the lead agency is
the SEA and administers both parts B
and C of the Act. In a few other States
that reported adopting the part B due
process procedures, children receiving
services under part C of the Act are also
entitled to receive, under State law,
FAPE, and thus, these States must
provide parents with procedural
protections under both parts B and C of
the Act. For these reasons, we will continue to
allow States the option to adopt the due
process procedures (with applicable
public and stakeholder input) that are
most appropriate for that State. Changes: None.
Filing a Due Process Complaint
(§ 303.440) Comment: One commenter requested
that the Department clarify the phrase
‘‘or should have known’’ as used in
§ 303.440(a)(2), regarding an alleged
violation that forms the basis of a due
process complaint. Discussion: As provided in
§ 303.440(a)(2), in States that choose to
adopt the part B due process procedures
under section 615 of the Act, a due
process complaint must allege a
violation that occurred not more than
two years before the date the parent or
EIS provider knew, or should have
known, about the alleged action that
forms the basis of the due process
complaint, or, if the State has an explicit
time limitation for filing a due process
complaint, in the time allowed by that
State law. Whether a parent or public
agency ‘‘should have known’’ about the
action cited as the basis of the
complaint is a determination that a due
process hearing officer must make based
on the individual facts of each case.
Thus, further clarification of the term is
not necessary or appropriate. Changes: None.
Comment: One commenter expressed
concern that § 303.440(c) allows States
to choose either a 30- or 45-day timeline
to resolve a due process complaint. The
commenter stated that 30 days is
sufficient and should be mandated,
particularly given the short amount of
time that infants and toddlers are
eligible for part C services. Discussion:
The option in § 303.440(c)
that allows lead agencies to adopt either
a 30- or 45-day timeline to resolve a due
process complaint is specific to States
that choose to adopt part B due process
procedures under section 615 of the Act.
The part B regulations in 34 CFR
300.515(a) provide for a 45-day timeline
for the due process hearing. Section
303.440(c) incorporates the 45-day
timeline under the part B procedures,
but also allows States that choose to
adopt the part B procedures, to elect the
shorter 30-day timeline provided under
the part C due process procedures. This
gives States that choose to adopt the
part B due process procedures the
flexibility to put in place a timeline
shorter than that required under the part
B due process procedures. Therefore, we
do not believe it is appropriate to revise
the regulation as requested by the
commenter. Changes: None.
Due Process Complaint (§ 303.441) Comment: One commenter requested
that the Department clarify whether the
15 days referred to in § 303.441(d)(1) are
calendar days or working days. Discussion: The 15 days are calendar
days. As defined in § 303.9, a day means
calendar day, unless otherwise
indicated. Changes: None.
Comment: One commenter
recommended amending § 303.441(b) to
reflect the part B provisions in 34 CFR
300.153(b)(4), which recognize that a
homeless family may not have an
address to list when filing a complaint. Discussion: The commenter’s concern
is addressed in § 303.441(b)(4), which
requires, in the case of a homeless child
(within the meaning of section 725(2) of
the McKinney-Vento Homeless
Assistance Act), that the due process
complaint include available contact
information for the child and the name
of the EIS provider serving the child. Changes: None.
Comment: One commenter requested
that § 303.441(d) specify that hearing
officers must allow parties to amend
their due process complaint notices
unless doing so would prejudice the
other party. The commenter stated that
generally, parents may not understand
fully the due process procedures and
should be allowed to modify their due
process complaint without having to file
a new complaint and begin the process
again. Discussion: Section 303.441(d)(3)(i),
consistent with section 615(c)(2)(E) of
the Act, provides that a party may
amend its due process complaint only if
the other party consents in writing to
the amendment and is given the
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opportunity to resolve the due process
complaint through a meeting; or, as
provided in § 303.441(d)(3)(ii), the
hearing officer grants permission to
amend the complaint, except that the
hearing officer may only grant
permission to amend the complaint at
any time not later than five days before
the due process hearing begins. We
further note that a party may withdraw
its complaint, and re-file it. The
regulation aligns with the Act and,
therefore, we decline to revise the
regulation as requested by the
commenter.
Changes: None.
Comment: One commenter
recommended extending the time when
a party receiving a due process
complaint must send a response that
specifically addresses the issues raised
in the due process complaint. The
commenter stated that the 10 days
provided in § 303.441(f) is not enough
time to research and develop an
appropriate response. Discussion: Section 303.441(f)
incorporates the requirements in section
615(c)(2)(B)(ii) of the Act, which
provides that the receiving party must
provide the party that filed the
complaint a response to the complaint
within 10 days of receiving the
complaint. We do not have the authority
to extend this time period. Changes: None.
Resolution Process (§ 303.442) Comment: One commenter requested
that the Department revise the
paragraph heading of § 303.442(a),
‘‘Resolution meeting’’ to read ‘‘Meeting
to obtain facts and details.’’ Discussion: Section 303.442(a)(2)
states that the purpose of the resolution
meeting is for the parent of the child to
discuss the due process complaint and
the facts that form the basis of the due
process complaint, so that the lead
agency has the opportunity to resolve
the dispute. ‘‘Resolution meeting’’ is
thus, the appropriate paragraph heading
for § 303.442(a). Changes: None.
Comment: A few commenters stated
that there is no statutory basis for the
30-day resolution timeline in § 303.442
and that the timeline is too long for a
time-sensitive program like part C of the
Act. Discussion: Section 303.442,
regarding the resolution process, only
applies in cases where a State has
chosen to adopt the part B due process
procedures under section 615 of the Act.
Section 303.442(b)(1) incorporates the
30-day resolution timeline specified in
section 615(f)(1)(B)(ii) of the Act. Changes: None. Comment:
A few commenters
requested that § 303.442(b)(4) include a
definition of the term ‘‘reasonable
effort.’’
Discussion: Section 303.442(b)(4)
provides that, if the lead agency is
unable to obtain the participation of the
parent in the resolution meeting after
reasonable efforts have been made,
including documenting its efforts, the
lead agency may, at the conclusion of
the 30-day period, request that the
hearing officer dismiss the parent’s due
process complaint. We would expect
that throughout the 30-day resolution
period the lead agency would make
those efforts necessary, as dictated by
the individual circumstances of each
particular case, to encourage the parent
to participate in the resolution meeting.
If the lead agency requests the hearing
officer to dismiss the parent’s due
process complaint pursuant to
§ 303.442(b)(4), it would be up to the
hearing officer to determine whether the
lead agency has made reasonable efforts
to obtain the participation of the parent
in the resolution meeting. Thus,
specifying activities that would
constitute reasonable efforts under
§ 303.442(b)(4) in all cases is not
appropriate.
Changes: None.
Comment: Several commenters
suggested that § 303.442(b)(4) is
incompatible with the nature of the part
C program because dismissing a case
when a parent does not agree to
participate in a resolution session may
establish an adversarial relationship
between the parents and the lead
agency.
Discussion: Section 303.442(b)(4)
provides that when a parent does not
participate in the resolution meeting,
despite the lead agency’s reasonable
efforts to persuade the parent to
participate (which efforts must be
documented), the lead agency may
request that the hearing officer dismiss
the due process complaint. Although
this section provides the lead agency
with the option to request dismissal, the
lead agency is not required to request a
dismissal and may agree instead to an
extension of the time to conduct a
resolution meeting in order for the
parties to continue mediation efforts.
Additionally, it is the due process
hearing officer who determines whether
dismissal of the due process complaint
is warranted, based not only on the lead
agency’s request, if one is made, but also
based on any parent’s response. The
availability of both the lead agency’s
option to request dismissal and the
impartial hearing officer’s determination
ensures that dismissal of a due process complaint is based on case-specific
circumstances.
Changes: None.
Comment: One commenter
recommended that § 303.442(b) be
amended to require the lead agency to
present the requirements in this section
to a parent verbally or in the parent’s
primary mode of communication, in
order to ensure that a parent
understands these requirements. Discussion: Section 303.421(b)(3),
regarding the content of the prior
written notice and procedural
safeguards notice, provides that the
notice must be in sufficient detail to
inform the parents about, among other
things, how to file a due process
complaint in the due process
procedures the State has adopted
pursuant to § 303.430(d), and any
timelines under those procedures.
Further, § 303.421(c)(1)(ii) requires that
the notice be provided in the native
language, as defined in § 303.25, of the
parent or other mode of communication
used by the parent, unless it is clearly
not feasible to do so. Thus, the
regulations already address the
commenter’s concern regarding
providing the notice in a parent’s
primary mode of communication and
we do not believe that it is appropriate
to amend the regulations to require
verbal reading of the notice. We would
expect that the notice would be read to
a parent if the parent requested this
assistance. Changes: None.
Hearing Rights (§ 303.444) Comment: One commenter questioned
whether it is appropriate to have an
infant or toddler at a due process
hearing. Discussion: While parents always
have the right to determine whether
their infant or toddler is present at a
hearing, we do not believe it is
necessary to specify this right in
§ 303.444(c)(1) because, in general,
infants and toddlers with disabilities do
not need to be present to either serve as
witnesses at, or required participants in,
a due process hearing. However, we
note that under either the part B or part
C due process hearing procedures, a
parent is in the best position to decide
whether an infant or toddler will attend
the due process hearing. Changes: We have removed
§ 303.444(c)(1) and renumbered
paragraphs (c)(2) and (c)(3) as
paragraphs (c)(1) and (c)(2) of this
section.
Hearing Decisions (§ 303.445)
Comment: One commenter
recommended eliminating the
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provisions distinguishing between
substantive and procedural violations of
part C of the Act in § 303.445, stating
that it is not appropriate to make this
distinction in the part C regulations.
According to the commenter, this
regulation violates section 607(a) of the
Act.
Discussion: Section 303.445 applies to
States that choose to adopt the part B
due process procedures under section
615 of the Act. Thus, it is appropriate
to include language in § 303.445 that is
parallel to 34 CFR 300.513, which
reflects section 615(f)(3)(E) of the Act
concerning the nature of hearing officer
decisions, including the requirement
that decisions be based on substantive
grounds, and to include the standards
under which a hearing officer may find
that a child was denied appropriate
identification, evaluation, placement, or
provision of early intervention services
based on procedural inadequacies.
Section 303.445(a) is based on the
requirements specified in section
615(f)(3)(E) of the Act and thus, is
consistent with section 607(a) of the
Act, which requires the Secretary to
issue regulations that are necessary to
ensure that there is compliance with the
specific requirements of the Act. Changes: None.
Comment: One commenter
recommended that the heading of
§ 303.445(a) be amended to reflect the
standard that a hearing officer must use
to make decisions—which is whether
the infant or toddler with a disability
and his or her family were provided
appropriate early intervention services. Discussion: Section 303.445(a)
incorporates section 615(f)(3)(E) of the
Act, which provides the substantive and
procedural grounds upon which the
decision of a due process hearing officer
may be based; these substantive and
procedural grounds are broader than the
standard suggested by the commenter.
Therefore, we decline to amend the
heading of this paragraph. Changes: None.
Comment: None.
Discussion: In order to make
§ 303.446(b) consistent with
§ 303.443(b), which requires the lead
agency to conduct the due process
hearing, and section 635(a)(10) of the
Act, which requires the lead agency to
have a single line of responsibility, we
have removed in § 303.446(b) the
authority for a public agency (other than
the lead agency) to conduct due process
hearings when a State adopts under
§ 303.430(d) the part B due process
procedures. However, we have retained
the authority for the lead agency to
establish procedures that would allow
any party aggrieved by the findings and decision in the due process hearing to
appeal to, or request reconsideration of
the decision by, the lead agency. If the
lead agency establishes such
procedures, those procedures must meet
the same requirements in § 303.446(b),
(c), and (d).
Changes: We have removed the
authority for public agencies (other than
the lead agency) to conduct due process
hearings in § 303.446(b), consistent with
§ 303.443(b), which requires the lead
agency to conduct the due process
hearing. We amended § 303.446(b) to
permit the lead agency to establish
procedures that would allow any party
aggrieved by the findings and decision
in the due process hearing to appeal to,
or request reconsideration of the
decision by, the lead agency.
Timelines and Convenience of Hearings
and Reviews (§ 303.447)
Comment: One commenter requested
that the word ‘‘child’’ as used in
§ 303.447(d), concerning the
requirement that each hearing and each
review involving oral arguments be
conducted at a time and place that is
reasonably convenient to the parents
and child involved, be defined or
removed.
Discussion: Section 303.6 defines the
term child as it is used throughout this
part.
Changes: None.
Civil Action (§ 303.448)
Comment: A few commenters
recommended that § 303.448 stipulate
that courts have subject-matter
jurisdiction over actions brought under
sections 615 and 639 of the Act,
concerning procedural safeguards.
Discussion: Section 303.448
incorporates sections 615(i)(2),
615(i)(3)(A), 615(l), and 639 of the Act,
which provide for the right of an
aggrieved party to bring a civil action to
appeal the findings and final decision of
a due process hearing. Concerning the
commenter’s request to clarify subject-
matter jurisdiction of courts to hear
such a civil action, section 615(i)(2)(A)
of the Act states that a civil action to
appeal a due process decision may be
brought in a district court of the United
States without regard to the amount in
controversy. These sections of the Act
set forth the requisite subject-matter
jurisdiction for Federal and State courts
to hear such civil actions. Thus, it is not
necessary to clarify subject-matter
jurisdictional grounds beyond those
identified in sections 615(i)(2),
615(i)(3)(A), 615(l), and 639 of the Act.
Changes: None. Subpart F—Use of Funds and Payor of
Last Resort
Use of funds, payor of Last Resort, and
System of Payments (§ 303.500)
Comment: None.
Discussion: Given that the provisions
in § 303.500 address the general
requirements for each State’s fiscal
policies, we have moved the provision
in proposed § 303.521(a), concerning the
general option that a State may establish
a system of payments (i.e., financial
sources such as insurance or family fees
to pay for part C services), to
§ 303.500(b) and renumbered the other
provisions in § 303.521 accordingly. We
have added the term ‘‘premiums’’ to the
examples of cost participation fees for
clarity in § 303.500(b). Changes: We have renumbered
proposed § 303.500 as § 303.500(a) and
moved the general requirement in the
introductory text of proposed
§ 303.521(a) to § 303.500(b). We also
added the phrase ‘‘system of payments’’
to the heading of § 303.500 and the
word ‘‘premiums’’ to § 303.500(b).
Permissive Use of Funds by the Lead
Agency (§ 303.501)
Comment: None.
Discussion: To ensure that the use of
funds requirements in § 303.501 are also
subject to other fiscal application
requirements in §§ 303.120 through
303.122 and §§ 303.220 through 303.226
(concerning fiscal assurances each State
must include in its application for
funds), we have added references to
these other fiscal provisions in
§§ 303.120 through 303.122 and
§§ 303.220 through 303.226. Changes: We have added in the
introductory text of § 303.501 references
to §§ 303.120 through 303.122 and
§§ 303.220 through 303.226. Comment: One commenter requested
clarification on the implementation of
the requirement in § 303.501(a) that part
C funds be used for direct early
intervention services ‘‘that are not
otherwise funded through other public
or private sources.’’ This commenter
also noted that funding sources might
vary by child, which is difficult for a
State to monitor. Discussion: The purpose of
§ 303.501(a) is to ensure that Federal
funds are used to supplement or
increase the level of resources available
in a State for the provision of early
intervention services and are not used to
replace existing resources. Section
303.501(a) incorporates the language in
section 638(1) of the Act that permits,
but does not require, States to use part
C funds for direct early intervention
services when there are no other public
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60220 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
or private sources available to pay for
these services, subject to the
requirements in §§ 303.510 through
303.521. In a State that uses part C
funds to pay for direct early
intervention services, the State must
ensure implementation of the payor of
last resort provisions in section 640 of
the Act and in §§ 303.510 through
303.521.
With respect to the commenter’s
concern about identifying and
monitoring funding sources to pay for a
service for a particular child, under
§ 303.344(d)(1)(iv), the child’s IFSP
Team must identify in the IFSP the
payment arrangements, which include
identifying the funding source(s) that
will be used to pay for each early
intervention service identified in the
IFSP. Consistent with § 303.33(b)(9), the
role of a service coordinator includes
coordinating the funding sources for
early intervention services specified in
the IFSP. States may monitor and
implement the payor of last resort
requirements in § 303.501(a) in a variety
of ways. For example, a State may
provide IFSP Teams with a list of
resources that may be available to pay
for a specific IFSP early intervention
service in that State. A State may
require service coordinators to review
with parents available funding sources
to pay for a specific IFSP service based
on family-specific circumstances ( e.g.,
military families or children already
enrolled in Title V or other programs) in
order to implement the payor of last
resort provisions in § 303.501(a). Given
the parallel requirements in
§§ 303.33(b)(9) and 303.344(d)(1)(iv)
and the variety of ways in which States
may implement the requirements in
§ 303.501(a), it is not feasible to further
clarify how this provision might be
implemented. Changes: None.
Comment: Many commenters opposed
the provision in § 303.501(d), which
allows the use of part C funds to serve
children over the age of three, because
existing appropriations for part C are
not sufficient to cover the cost of
providing early intervention services to
eligible infants and toddlers under age
three and their families. Some
commenters requested that the
Department clarify that § 303.501(d)
should not take effect until sufficient
appropriations are available to trigger
incentive funding under section 643(e)
of the Act. One commenter supported
§ 303.501(e), which allows any State
that does not provide services under
§ 303.204 for at-risk infants and
toddlers, as defined in § 303.5, to
strengthen the statewide system by
initiating, expanding, or improving collaborative efforts related to at-risk
infants and toddlers.
Discussion: The provisions in
§ 303.501(d) and (e), concerning a
State’s option to make available early
intervention services in lieu of FAPE to
children with disabilities beyond age
three and strengthening the statewide
system, directly reflect the language in
section 638(4) and (5) of the Act. Under
sections 632(5)(B)(ii) and 635(c) of the
Act and § 303.211, States have the
option, but are not required, to make
part C services available to eligible
children over the age of three. While the
provision in section 643(e) of the Act
requires the Department, in any fiscal
year for which the appropriation for the
part C program exceeds $460,000,000, to
reserve a portion of the funds as
incentive funds for States to serve
children three years of age until
entrance into elementary school,
nothing in the Act (including sections
632(5)(B)(ii) and 635(c)) links the
availability of the option to make part C
services available to eligible children
over the age of three to the availability
of funding under section 643(e) of the
Act. Changes: None.
Payor of Last Resort (§ 303.510) Comment: Several commenters
requested that the language from the
note following current § 303.527
(concerning the intent of Congress that
other funding sources continue for
services that would be available to
eligible children but for the existence of
programs under part C of the Act) be
incorporated in the payor of last resort
requirements in § 303.510. These
commenters noted that the language in
the note supports congressional intent
for an interagency structure to finance
early intervention services and is an
important statement supporting States’
efforts to develop the necessary
partnerships to fund the part C system. Discussion: The substance of the note
that follows current § 303.527 is
included in § 303.510(c) as a rule of
construction. The rule of construction,
which references funding sources under
the Social Security Act, 42 U.S.C. 701,
et seq. (SSA), clarifies that nothing in
part C of the Act may be construed to
permit a State (including the lead
agency and other agencies in the State)
to withdraw funding for services that
currently are or would be made
available to eligible children but for the
existence of part C of the Act. Thus,
funding from other sources would
continue to be available to support
services that are included in the IFSP.
To make this clearer, we have amended
§ 303.510(c) to include a reference to section 1903(a) of the SSA, the specific
section of the SSA regarding medical
assistance for services and have clarified
that nothing in this part may be
construed to permit a State to reduce
medical or other assistance available in
the State.
Changes: We have amended
§ 303.510(c) by removing the final
phrase ‘‘within the State’’ and including
the phrases: (1) ‘‘in the State’’ and (2)
‘‘including section 1903(a) of the SSA
regarding medical assistance for services
furnished to an infant or toddler with a
disability when those services are
included in the child’s IFSP adopted
pursuant to part C of the Act.’’ Comment: One commenter opposed
referencing § 303.520, regarding use of
insurance for payment of services, in
§ 303.510(a), regarding payor of last
resort. The commenter noted that in
light of part C’s payor of last resort
requirements parental consent should
not be required for the use of private
insurance in § 303.520 because the
requirement to obtain parental consent
diminishes the lead agency’s capacity to
implement a consistent payor of last
resort policy. The commenter requested
that the Department clarify, amend, or
remove the reference to § 303.520 in
§ 303.510(a). Discussion: The requirement in
§ 303.510(a) directly incorporates the
long-standing payor of last resort
requirements in section 640(a) of the
Act (and reflected in current
§ 303.527(a) and (b)). The reference to
§ 303.520 in § 303.510(a) was added to
ensure that States do not interpret part
C payor of last resort provisions to
override the requirements in §§ 303.520
and 303.521, concerning use of
insurance and systems of payments. As discussed in response to
comments on § 303.520, the Department
has determined that funds from public
health insurance or benefits (e.g.,
Medicaid or CHIP) or private insurance
are not considered available funding
sources under part C’s payor of last
resort provisions, unless a parent has
provided the consent required under
§ 303.520(a)(1) and (b)(1), concerning
parental consent for use of public
benefits or insurance or private
insurance, or one of the exceptions
under § 303.520(a)(2) or (b)(2) applies.
When other public funds are available
to pay for part C services, such as funds
from the Department of Defense’s TRI–
CARE medical assistance program or
TANF, part C funds are the payor of last
resort. Changes: None.
Comment: Several commenters
recommended adding a reference to the
Children’s Health Insurance Program
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60221 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
(CHIP) in § 303.510(c), which requires
that nothing in this part be construed to
permit a State to reduce medical or
other available assistance or to alter
eligibility under Title V of the SSA or
Title XIX of the SSA, within the State,
because CHIP is a potential Federal
funding source for early intervention
services.
Discussion: Section 303.510(c)
directly incorporates the payor of last
resort provisions in section 640 of the
Act, which only expressly reference
Titles V and XIX of the SSA (which are
the statutory authorities respectively for
the Maternal and Child Health and
Medicaid public benefits programs). No
other statutory authorities are cited. We
believe it would be inappropriate to add
a reference to CHIP without also adding
statutory authorities for all other
funding sources. Changes: None.
Methods To Ensure the Provision of,
and Financial Responsibility for, Part C
Services (§ 303.511) Comment: None.
Discussion: We have changed the title
of § 303.511 to better align with the title
of section 640(b)(1) of the Act, which
addresses methods of ensuring and
establishing financial responsibility for
part C services. Changes: We have changed the title of
§ 303.511 to ‘‘Methods to ensure the
provision of, and financial
responsibility for, Part C services’’. Comment: One commenter requested
that § 303.511(a) be clarified to require
States to have in place methods for
establishing financial responsibility and
for providing early intervention services
using one of the three methods listed in
§ 303.511(a). The commenter stated that,
as proposed, § 303.511(a) appeared to
require that States (a) establish financial
responsibility in State law or regulation,
(b) sign interagency and intra-agency
agreements, and (c) have other written
methods determined by the Governor, or
the Governor’s designee, and approved
by the Secretary as part of the State’s
application. Discussion: We agree that clarification
of this provision is necessary and have
amended proposed § 303.511(a) and
removed proposed § 303.511(b). New
§ 303.511(a) has been added to track the
language of section 640(b)(1)(A) of the
Act, requiring each State to ensure that
has in place methods for State
interagency coordination such that the
Chief Executive Officer of a State or
designee of the Chief Executive Officer
shall ensure that the interagency
agreement or other method for
interagency coordination is in effect
between each State public agency and the designated lead agency. New
§ 303.511(a)(1) incorporates proposed
§ 303.511(b), providing that the
interagency coordination must ensure
the provision of, and financial
responsibility for, early intervention
services provided under this part. New
§ 303.511(a)(2) requires that such
services be consistent with the
requirements of section 635 of the Act
and the State’s application under
section 637 of the Act, including the
provision of such services during the
pendency of any dispute between the
State agencies.
Proposed § 303.511(a) has been
redesignated as § 303.511(b) and has
been revised to indicate that States must
meet the requirements of this section
using one of the three methods listed. Changes: We have added new
paragraph § 303.511(a), removed
proposed § 303.511(b), and redesignated
proposed paragraph (a) as new
paragraph (b). We revised § 303.511(b)
by adding the phrase ‘‘in one of the
following’’. Comment: Two commenters
supported the addition of proposed
§ 303.511(a)(2), redesignated
§ 303.511(b)(2), permitting States to use
signed interagency and intra-agency
agreements to establish financial
responsibility and provide early
intervention services. Other commenters
requested that the Department require
States to report to the Secretary the
dollar amounts that flow into the system
based on the use of interagency and
intra-agency agreements. Discussion: The Department does not
require States to submit data to the
Secretary on the amount of funding
obtained for part C services through
interagency or intra-agency agreements
because the Department does not have
a programmatic or regulatory need to
collect such information at this time and
we do not want to place an additional
data collection burden on States.
However, States may choose to collect
such data and may need these data to
track the amount of funds expended and
budgeted for the provision of early
intervention services in order to meet
part C’s nonsupplanting requirements in
§ 303.225. Changes: None.
Comment: One commenter requested,
for clarity, that the word ‘‘method’’ in
proposed § 303.511(b), regarding
methods for establishing financial
responsibility and providing early
intervention services, be replaced with
‘‘formal interagency agreement or other
written method.’’ Discussion: Proposed § 303.511(b),
redesignated § 303.511(a)(1), directly
incorporates the language in section 640(b) of the Act concerning obligations
to ensure, and methods of ensuring,
services. Section 640(b) of the Act and
§ 303.511(a)(1) make clear that
‘‘method’’ refers to the manner in which
a State ensures the fiscal responsibility
of each agency for paying for part C
services, which could include a State
law, regulation, signed interagency or
intra-agency agreement, or other
appropriate written method. Adding the
phrase ‘‘formal interagency agreement
or other written method’’ to the
regulation could appear to limit the
options a State has for meeting these
requirements or indicate a preference
for the method to be used.
Changes: None.
Comments: None.
Discussion: As part of the State’s
responsibility to have methods in place
for establishing financial responsibility,
it is critical that not only should such
methods be consistent with the State’s
funding policies adopted under Subpart
F (including the system of payments)
but such methods must expressly
include any provisions the State has
adopted under § 303.520 regarding the
use of insurance to pay for part C
services. Many of the provisions in
§ 303.520 regarding use of public
benefits or insurance or use of private
insurance can only be implemented
with one of the express methods
identified in section 640 of the Act and
in § 303.511 (such as an interagency
agreement, State statute, or Medicaid
State plan) and the State must include
its provisions regarding use of insurance
in one of these methods to ensure
adherence to these requirements. Changes: We have added to the end
of § 303.511(d)(2) the phrase ‘‘and
include any provisions the State has
adopted under § 303.520 regarding the
use of insurance to pay for part C
services.’’
Policies Related To Use of Insurance To
Pay for Part C Services (§ 303.520)
Use of Public Benefits or Insurance To
Pay for Part C Services (§ 303.520(a))
Comment: We received many
comments on the use of public benefits
or insurance to pay for part C services.
Most commenters, including parents,
parent advocacy groups, State lead
agencies, and EIS providers, supported
proposed § 303.520(a)(1)(iii), which
would have required parental consent
for enrollment in a public benefits or
insurance program when a parent is
eligible under, but not already enrolled
in, such a program. These commenters
maintained that a State should not be
able to require a parent to enroll in a
public benefits or insurance program,
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such as Medicaid, as a condition of
receiving IDEA part C services because
the act of enrollment could impose costs
on parents and families, affect their
rights under other Federal programs,
and have an impact on a parent’s credit
rating.
However, the vast majority of
commenters, including parents, parent
advocacy groups, State lead agencies,
and EIS providers, opposed proposed
§ 303.520(a)(1)(i) that would have
required parental consent for using a
child’s or parent’s public benefits or
insurance to pay for part C services
when the child or parent is already
enrolled in such a program. Several
commenters, including a State
Interagency Coordinating Council and a
parent advocacy group, recommended
that States be required to provide notice
to parents in lieu of obtaining parental
consent when the child or parent is
already enrolled in such a program,
particularly if the child or parent does
not incur specified costs. Commenters gave the following
reasons for opposing the parental
consent requirement in proposed
§ 303.520(a)(1)(i) when a child or parent
is already enrolled in a public benefits
or insurance program: (1) The use of
public benefits or insurance is an
important funding source for IDEA part
C services, (2) there may be an
administrative burden on State lead
agencies and EIS providers in obtaining
parental consent that could result in a
delay in providing services to children
and families, (3) IDEA statutory
provisions, including sections
635(a)(10) and 640, require State lead
agencies to coordinate all funding
sources and to use IDEA part C funds as
a payor of last resort, respectively; (4)
Federal IDEA part C funds are designed
to be the ‘‘glue money,’’ and not the
primary funding source and thus only to
be used when other Federal, State, and
local funds are not available to pay for
IDEA part C services; and (5) when a
child or parent is already enrolled in a
public benefits or insurance program, a
consent requirement does nothing to
protect privacy given that the agency
responsible for the administration of
public insurance or public benefits
already has personal information about
the child and family and that other
concerns, such as avoiding the potential
negative impact on a parent’s credit
rating, do not apply when a child or
parent is already enrolled in a public
insurance or benefits program.
Additionally, two commenters who
opposed the parental consent
requirement when a child or parent is
already enrolled in a public benefits or
insurance program noted that parents already have the right under part C of
the Act to consent to each and every
part C service on the IFSP and that a
separate consent provision provided
parents with no additional protections.
A minority of commenters supported
proposed § 303.520(a)(1)(i). The primary
reasons cited by commenters for
supporting a parental consent
requirement when a child or family is
already enrolled in a public benefits or
insurance program were that: (1) Parents
should be informed of all potential costs
regarding use of their benefits; (2)
parents should understand any potential
limitations in coverage or future
negative consequences and consent
ensures accountability; (3) the IDEA part
C consent regulations should align with
the IDEA part B consent regulations;
and (4) the consent provisions for public
and private insurance should be
aligned. The commenters who expressed
concern regarding the potential costs for
parents of using public benefits or
insurance to pay for IDEA part C
services cited costs such as decreasing
available lifetime coverage for a child or
parent; paying for services that would
otherwise be covered by the public
benefits or insurance program;
increasing premiums or discontinuing
public benefits or insurance for that
child or parent as a result of such use;
and risking loss of eligibility for
Medicaid home and community-based
waivers based on overall health
expenses. Discussion: We are restructuring and
revising § 303.520(a) regarding the use
of public benefits or insurance to pay for
part C services in response to
commenters’ concerns. As described in
the following paragraphs, we believe
this approach is consistent with the
statutory framework and the provisions
in sections 632(4)(B), 635(a)(10),
639(a)(2), and 640 of the Act. Statutory framework. Section
632(4)(B) of IDEA, which defines early
intervention services, includes in the
definition a requirement that such
services must be provided at no cost,
except where Federal or State law
provides for a system of payments by
families, which can include costs such
as charging parents a sliding scale fee
for part C services. Section 635(a)(10)(B)
requires the State lead agency to
identify and coordinate all available
resources in the State from Federal,
State, local, and private sources. Section
639(a)(2) of the Act requires the State to
ensure the confidentiality of personally
identifiable information, including the
right of parents to written notice of and
written consent to the exchange of such
information among agencies consistent with Federal and State law. Section 640
of IDEA requires the State lead agency
to use Federal IDEA part C funds as a
payor of last resort; requires State
interagency mechanisms to ensure the
timely provision of, and payment for,
early intervention services; and
explicitly references the use of other
public funding sources, such as
Medicaid, to pay for part C services.
Read together, these IDEA part C
statutory provisions require States to
use public benefits or insurance (when
available) to pay for part C services
instead of using Federal IDEA part C
funds, and also require States to protect
the privacy rights of parents and their
children.
Consent to enroll in a public benefits
or insurance program. We appreciate
the commenters’ concerns that the act of
enrolling in a public benefits or
insurance program may impose costs on
parents and families, affect parents’ and
families’ rights under other Federal
programs, or have an effect on a parent’s
credit rating. The act of enrollment
involves disclosure of personally
identifiable information regarding the
child and family. Therefore, we are
retaining the provision in proposed
§ 303.520(a)(1)(iii) in new paragraph
(a)(2)(i) of § 303.520. This provision
specifies that a State may not require a
parent to sign up for or enroll in public
benefits or insurance programs as a
condition of receiving part C services
and must obtain parental consent prior
to requiring enrollment. A consent
requirement for enrollment protects
parents’ financial interests by allowing
them to consider the costs they may
incur by enrolling in a public benefits
or insurance program. Additionally, a
consent requirement for enrollment
protects parents’ rights regarding the
disclosure of personally identifiable
information. Children and parents who are already
enrolled in a public benefits or
insurance program. We are persuaded
by commenters who opposed the
requirement in proposed
§ 303.520(a)(1)(i) to obtain parental
consent when a child or parent is
already enrolled in a public benefits or
insurance program. The commenters
argued that requiring consent could
affect the timely provision of part C
services to children and families and
that requiring parental consent when a
child or parent is already enrolled in a
public benefits or insurance program
would not provide additional privacy
protections given that the public
benefits or insurance program already
has personal information about the
child or parent. We also note that the
consent provisions in § 303.414
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regarding the confidentiality of
personally identifiable information
(where applicable) already provide
parents with privacy protections.
Additionally, we recognize the
importance of public benefits or
insurance as a funding source for part C
services and the provisions in sections
632(4)(B), 635(a)(10), and 640 of the Act,
which include a reference to State
systems of payments, require States to
coordinate all resources, and require
States to use part C funds as a payor of
last resort, respectively. Therefore, we
are replacing proposed § 303.520(a)(1)(i)
with § 303.520(a)(3) regarding written
notification to parents.
No-cost protections. We agree with
commenters who noted that parents
must understand the implications of
using their public benefits or insurance
to pay for part C services and the
importance of parents understanding
their confidentiality rights. We also
agree with commenters who expressed
concern that the State should not use a
child’s or parent’s public benefits or
insurance if the parent would incur
specific costs as a result of the use of
those benefits or insurance. Thus, we
are making the following changes in
these final regulations: (1) Adding new § 303.520(a)(1)
explicitly stating that the State may not
use the public benefits or insurance of
a child or parent to pay for part C
services unless the State both provides
parents with written notification about
the IDEA part C no-cost protections and
applicable confidentiality provisions
and meets the additional specific no-
cost protections identified in new
§ 303.520(a)(2); (2) Adding new § 303.520(a)(2)(ii)
stating that parental consent must be
obtained if use of a child’s or parent’s
public benefits or insurance would
result in the following specified costs:
(a) A decrease in the available lifetime
coverage for a child or parent; (b)
payment for services that would
otherwise be covered by the public
benefits or insurance program; (c)
increases in premiums or
discontinuation of public benefits or
insurance for that child or the parents
as a result of such use; or (d) a risk of
loss of eligibility for the child or the
parents for Medicaid home and
community-based waivers based on
aggregate health expenses. (3) Adding new § 303.520(a)(2)(iii)
stating that if a parent does not provide
consent under new § 303.520(a)(2)(ii),
the State must still make available those
part C services in the IFSP to which the
parent has provided consent. Written notification to parents. As
noted previously, we agree that parents must be informed regarding the
implications of a public agency using
their public benefits or insurance.
Therefore, we are adding in new
§ 303.520(a)(3) that, prior to using a
child’s or parent’s public benefits or
insurance to pay for part C services, the
State must provide written notification
to the child’s parents. This notification
may be provided at any time but in no
case later than when the State seeks to
use the public benefits or insurance to
pay for part C services; without
providing the notice, the State may not
use such funds to pay for part C
services. The written notification must
include the following four important
pieces of information.
First, the notice must include a
statement that parental consent must be
obtained under § 303.414, if that
provision applies, before the State lead
agency or EIS provider discloses, for
billing purposes, a child’s personally
identifiable information to the State
public agency responsible for the
administration of the State’s public
benefits or insurance program (e.g.,
Medicaid) at any time. The consent
provision in § 303.414 applies in States
where the State lead agency is not the
State Medicaid or public benefits or
insurance agency or if the State lead
agency chooses to adopt a consent
provision even if it is the State Medicaid
or public benefits or insurance agency. Second, the notice must include a
statement of the no-cost protection
provisions in new § 303.520(a)(2)
(i.e., that parents cannot be required to
enroll in public insurance or benefits
programs and consent must be obtained
if use of such insurance or benefits
would result in specified costs) and that
if the parent does not provide the
consent under § 303.520(a)(2), the State
lead agency must still make available
those part C services in the IFSP for
which the parent has provided consent. Third, the notice must include a
statement that parents have the right
under § 303.414, if that provision
applies, to withdraw their consent to
disclosure of personally identifiable
information to the State public agency
responsible for the administration of the
State’s public benefits or insurance
program (e.g., Medicaid) at any time.
Fourth, the notice must include a
statement of the general categories of
costs that the parent could incur as a
result of participating in a public
benefits or insurance program (such as
co-payments or deductibles). We believe
it is important to include this last
element in the written notice to ensure
that parents are informed of the general
potential costs that may result from
using their public benefits or insurance to pay for part C services. Additionally,
we are adding this last element in
response to the many comments we
received about the need to make parents
aware of these general costs.
Finally, we note that, under Title VI
of the Civil Rights Act of 1964 and
implementing regulations (42 U.S.C.
2000d et seq. and 34 CFR 100.1 et seq.),
State lead agencies, as recipients of
Federal funds, must take reasonable
steps to ensure that persons of limited
English proficiency (LEP) have
meaningful access to programs and
activities funded by the Federal
government, including part C services
and any notices required under these
regulations and part C of the Act.
Providing meaningful access may
require the State lead agency to ensure
that the notice is provided in a language
other than English either through oral or
written translation. Consent provisions under Part C and
Part B of the Act and alignment between
public and private insurance. In
response to commenters’ concerns about
other part C consent provisions and
alignment between parts B and C of
IDEA, we note that under section
639(a)(3) of the Act and § 303.420,
parents have a separate right to consent
to part C services in the IFSP and to any
changes in the frequency or intensity of
services in the IFSP and the right to
decline at any time the receipt of a
particular part C service without
jeopardizing the right to any other part
C service in the IFSP. Thus, while we
appreciate the commenters’ desire to
align the provisions related to the use of
public insurance under parts B and C of
the Act, the differences in how these
two programs treat costs to families, the
responsibility for funding, and the
consent for services, as well as the
administrative structure of part C
programs argue against treating this
issue in precisely the same manner in
both programs. We have aligned where practicable
the consent provisions for the use of
public and private insurance to pay for
part C services, partly in response to
commenters. Specifically, for a State to
use private insurance or to use public
benefits or insurance to pay for part C
services, the State may use such funding
sources without obtaining parental
consent when the State ensures that
parents do not incur specific costs (as
set forth in §§ 303.520(a)(2) and
303.520(b)(2)), but must obtain parental
consent when such costs are incurred as
a result of using such funding sources.
We also place continued importance on
informing parents of the potential costs
through the notification provisions in
§§ 303.520(a)(3) and (a)(4) for public
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60224 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
benefits or insurance and ensuring that
States provide parents with a copy of
the State’s system of payments policies
under § 303.520(b)(1)(iii) for private
insurance. The one unique scenario for
public benefits or insurance is the initial
act of enrollment for which there is no
parallel for private insurance and we are
maintaining a parent consent
requirement in new § 303.520(a)(2)(i) for
this circumstance for the reasons
described earlier.
Costs associated with using public
benefits or insurance. We are retaining
in new § 303.520(a)(4) the provisions in
proposed § 303.520(a)(2), which require
the State to identify in its system of
payments policies under § 303.521 any
costs that the parent would incur as a
result of a State using a child’s or
parent’s public benefits or insurance to
pay for part C services (such as co-
payments or deductibles, or the required
use of private insurance as the primary
insurance). New § 303.520(a)(4) also
specifies that the written notification
provided under new § 303.520(a)(3)
must identify these costs. The State
must comply with both of these
requirements in order to use the child’s
or parent’s public benefits or insurance
for part C services. The Secretary
believes the notification provision is
vital to parents being informed about
these potential costs and the system of
payments policies requirement ensures
that as the State’s system of payments
policies are being developed and subject
to public participation, these potential
costs are identified as part of the overall
costs in the State’s system of payments
for part C services. Changes: We have restructured
§ 303.520 to add a new paragraph (a)(1)
that requires the State to provide
parents with written notification of the
no-cost and confidentiality provisions
in paragraph (a)(3) and to meet the no-
cost protections identified in paragraph
(a)(2) before it may use the public
benefits or insurance of a child or parent
to pay for part C services. New § 303.520(a)(2)(i) provides that
with regard to using the public benefits
or insurance of a child or parent to pay
for part C services, a State may not
require a parent to enroll in a public
benefits or insurance program as a
condition of receiving part C services,
and clarifies that the State must obtain
parental consent prior to using those
benefits or insurance if the child or
parent is not already enrolled in a
public benefits or insurance program. We have added in new
§ 303.520(a)(2)(ii) the requirement that,
in addition to providing the parent the
written notification, a State must obtain
parental consent if use of a child’s or parent’s public benefits or insurance
would result in the following specified
costs: A decrease in the available
lifetime coverage or any other insured
benefit for a child or parent; payment
for services that would otherwise be
covered by the public benefits or
insurance program; increases in
premiums or discontinuation of public
insurance or benefits for that child or
parent as a result of such use; or a risk
of loss of eligibility for the child or the
parent for Medicaid home and
community-based waivers based on
aggregate health expenses.
We have added, in new
§ 303.520(a)(2)(iii), a provision
clarifying that if a parent does not
provide consent under new
§ 303.520(a)(2)(ii), the State must still
make available those part C services in
the IFSP to which the parent has
provided consent.
The contents of the written
notification are specified in
§ 303.520(a)(3). Specifically, the
notification must include: (1) A
statement that parental consent must be
obtained under § 303.414, if that
provision applies, before the State lead
agency or EIS provider discloses, for
billing purposes, a child’s personally
identifiable information to the State
public agency responsible for the
administration of the State’s public
benefits or insurance program (e.g.,
Medicaid); (2) a statement of the no-cost
protection provisions in new
§ 303.520(a)(2) and that if the parent
does not provide the consent under
§ 303.520(a)(2), the State lead agency
must still make available those part C
services in the IFSP for which the
parent has provided consent; (3) a
statement that the parents have the right
under § 303.414, if that provision
applies, to withdraw consent to disclose
a child’s personally identifiable
information at any time; and (4) a
statement of the general categories of
costs that the parent would incur as a
result of participating in a public
benefits or insurance program (such as
co-payments or deductibles, or the
required use of private insurance as the
primary insurance).
Finally, new § 303.520(a)(4) requires
the State to identify both, in its system
of payments policies under § 303.521
and the written notification provided
under new § 303.520(a)(3), any costs
that the parent would incur as a result
of the State’s using a child’s or parent’s
public benefits or insurance to pay for
part C services (such as co-payments or
deductibles, or the required use of
private insurance as the primary
insurance). Comment:
One commenter supported
proposed § 303.520(a)(1)(ii), which
would allow a public agency to use
public insurance or benefits for
Medicaid-eligible children in foster care
without parental consent. Two
commenters suggested that this section
should specifically refer to both
children in ‘‘foster care’’ and ‘‘wards of
the State.’’ Discussion: We are removing
proposed § 303.520(a)(1)(ii) because
there is no cost for the use of Medicaid
for children who are automatically
considered eligible and enrolled under
Medicaid because of their status in
foster care under section 472 in Title
XIX of the Social Security Act (SSA).
We also do not need to explicitly add
a reference to ‘‘wards of the State’’
because section 472 of the SSA applies
to children who are ‘‘wards of the
State;’’ therefore, there would be no
consent requirement for such children. Changes: We have removed proposed
§ 303.520(a)(1)(ii).
Use of Private Insurance To Pay for Part
C Services (§ 303.520(b))
Comment: Most commenters,
including lead agencies, parent groups,
professional organizations, EIS
providers, national organizations, a
State interagency coordinating council,
and individuals, supported the
requirement in proposed
§ 303.520(b)(1)(i) that a State may access
a parent’s private insurance to pay for
part C services only if it obtains consent
from the parent. Commenters supported
the requirement that consent be
provided in accordance with the
definition of this term in § 303.7, which
requires that the parent be informed of
all relevant information and that the
consent be in writing. Several commenters opposed
requiring parental consent before
accessing private insurance stating that
requiring consent would result in a loss
of funding for States. A few of these
commenters recognized the need to
protect a family’s confidential
information, but encouraged the
Department to consider other means to
protect personally identifiable
information that may not adversely
affect funding for early intervention
services under part C of the Act. One
commenter opposed the parental
consent requirement in proposed
§ 303.520(b) because the commenter
noted that the State already must obtain
parental consent for services under
§ 303.420 and questioned how the State
could bill private insurance without
parental knowledge. Discussion: The Department agrees
with the majority of commenters that a
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60225 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
State must obtain parental consent
before accessing a parent’s private
insurance because of the potential costs
that can be incurred by a family with a
privately insured child or parent as a
direct result of using such insurance, as
well as the other potential negative
effects on the availability of private
insurance for other family medical
expenses, including services needed by
the child that are not covered by part C.
The Department believes that parental
consent must be required when the lead
agency or EIS provider seeks to use
private insurance to pay for the initial
provision of any early intervention
service in the IFSP and each time
consent for services is required due to
an increase in the provision of services
in the child’s IFSP.
With regard to the potential loss of
funds to a State, the Department
believes that the potential costs to
parents outweigh the need to make
private insurance funds available to lead
agencies unless the cost protections in
proposed § 303.520(b)(2) are adopted by
the State. We disagree with the
commenter who opposed the
requirement for separate parental
consent for the use of private insurance.
We believe separate consent is needed
because States implement the IFSP
provisions in a variety of ways and may
not have identified all funding sources
for each service when they obtain
consent for that service under § 303.420. Changes: We have added new
§ 303.520(b)(1)(i) to specify that parental
consent is required when the lead
agency or EIS provider seeks to use
private insurance to pay for the initial
provision of any early intervention
service in the IFSP and each time
consent for services is required due to
an increase in the provision of services
in the child’s IFSP. Comment: Some commenters
requested clarification on when consent
is required if a State wishes to use
insurance or benefits for a parent who
is determined unable to pay. Some
commenters expressed concerns that
parents who had been determined
unable to pay would still incur costs as
a result of using their insurance or
benefits for part C services. Discussion: We agree that the
requirements in this section could be
more clearly presented. We have
restructured § 303.520(b) for clarity.
Paragraph (b)(1) of this section sets forth
the general parental consent
requirement and paragraph (b)(2) of this
section sets forth the specific exceptions
to parental consent. We have reworded
the heading for this section to make
clear that this section applies to any
State that uses private insurance to pay for part C services. We also have moved
the substance of proposed
§ 303.520(b)(1)(iv) concerning a parent’s
inability to pay and a State’s obligation
to provide part C services, to new
§ 303.520(c).
Regarding commenters’ concerns that
parents who had been determined
unable to pay would still incur costs as
a result of using their insurance or
benefits for part C services,
§ 303.521(a)(6) requires the lead agency
to pay for costs such as co-payments or
deductibles if a parent is determined
unable to pay. Changes: We have revised the
language in paragraph (b), and added a
new paragraph (c). Comment: Some commenters
expressed concern that the use of
private insurance under § 303.520(b) for
part C services could make private
insurance benefits unavailable for
additional medical or other services that
are not covered by part C of the Act.
One commenter recommended that
exemptions be available to families if
using their private insurance to pay for
early intervention services reduces the
benefits they receive through private
providers. The commenter stated that
families should not be penalized for
allowing a State to use their insurance
to pay for early intervention services. Discussion: It is the Department’s
position that including an exception to
parental consent is not necessary
because consent is voluntary. A parent
may always decline a request from the
lead agency or EIS provider to consent
to the use of the parent’s private
insurance for all or any specific part C
service. In those very few States that have
adopted statutory protections
concerning private health insurance
coverage for early intervention services
under part C of the Act that meet the
requirements in § 303.520(b)(2) we agree
that is important for a parent to be
informed of potential costs if a State
were to use a parent’s private insurance.
Thus, we have added a provision in new
§ 303.520(b)(1)(iii) that requires a State
to provide parents with a copy of its
system of payments policies when using
the parent’s private insurance to pay for
part C services. Moreover, the parent
may elect to decline services at any time
under § 303.420(a)(3). Changes: We have added the phrase
‘‘or initially using benefits under a child
or parent’s private insurance policy to
pay for an early intervention service
under paragraph (b)(2) of this section’’
in § 303.520(b)(1)(iii). Comment: None.
Discussion: For consistency with
§ 303.520(b)(1)(iii), we have added ‘‘premiums’’ as an example of a
potential cost in § 303.520(b)(1)(ii),
which requires a State to identify in its
system of payments policies the
potential costs that parents would incur
if the State uses their private insurance
policy to pay for part C services.
Changes: We have added a reference
to premiums in § 303.520(b)(1)(ii). Comment: Commenters supported the
requirement in proposed
§ 303.520(b)(1)(iii) that a State provide a
copy of its system of payments policies
when obtaining consent to use the
parent’s private insurance and some
commenters requested that the
regulation clarify that this copy be
provided to the parent because it is the
parent who needs to be informed of
potential costs as a result of the use of
the parent’s private insurance to pay for
early intervention services. One
commenter requested that a State
include in its system of payments
policies specific information about any
potential effect the use of private
insurance could have on the parent’s
annual or lifetime caps under the
parent’s private insurance. Discussion: Section 303.520(b)(1)(iii),
as proposed, specifically stated that the
lead agency, when obtaining consent,
must provide parents with a copy of the
State’s system of payments policies that
identify the potential costs that the
parent may incur as a result of the use
of the parent’s insurance to pay for part
C early intervention services. We agree
that notifying parents of potential costs
under § 303.520(b)(1)(iii) requires States
to identify out-of-pocket costs such as
co-payments, premiums, or deductibles
as well as other long-term costs such as
loss of benefits due to annual or lifetime
insurance caps. We also have revised
§ 303.520(b)(1)(iii) to clarify that the
State system of payments policies must
identify the potential costs that parents
may incur when their private insurance
is used to pay for early intervention
services under this part. Changes: We have revised proposed
§ 303.520(b)(1)(iii) to add a reference to
parents and to clarify that potential
costs identified in the policies may
include other long-term costs such as
loss of benefits resulting from annual or
lifetime insurance caps under a private
insurance policy. We also have replaced
the phrase ‘‘while enrolled in a private
insurance program’’ with the phrase
‘‘when their private insurance is used to
pay for early intervention services under
this part.’’ Comment: Some commenters
supported proposed § 303.520(b)(2),
which does not require the lead agency
to obtain parental consent when a State
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60226 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
has enacted specific statutory cost
protections. These commenters stated
that § 303.520(b)(2) would protect
families while balancing the need to
make private insurance funds available
to pay for part C services. A few
commenters requested clarification of
§ 303.520(b)(2).
Some commenters opposed this
exception to the parental consent
requirement because it: (1) Would result
in litigation; (2) lacks statutory
authority; (3) is inconsistent with the
part B regulations in 34 CFR 300.154(e)
concerning accessing private insurance
to pay for services under part B of the
Act; (4) is inconsistent with
confidentiality protections under the
Act and HIPAA and also with the
Employee Retirement Income Security
Act of 1974 (ERISA); and (5) could not
be uniformly applied because not all
private insurance policies are subject to
State statutes. Discussion: The purpose of the
exception in § 303.520(b)(2) is to enable
the lead agency in a State that has
adopted specific statutory cost
protections to use private insurance to
pay for part C services. In those States
that have adopted such protections,
private insurance funds are used to pay
for part C services (e.g., occupational or
speech therapy) that are considered
medically necessary for an infant or
toddler with a disability. We have
clarified proposed § 303.520(b)(2) to
make clear that the exception to
parental consent applies only if the
State’s statutory protections expressly
provide that for the protections listed in
new § 303.520(b)(2)(i), (b)(2)(ii), and
(b)(2)(iii). The implementation of such State
statutory protections is consistent with
sections 632(4)(B) and 640 of the Act.
Section 632(4)(B) of the Act requires
early intervention services to be
provided at no cost except where a State
has enacted a system of payments.
Section 640 of the Act requires Federal
part C funds to be used as the payor of
last resort. Providing an exception to
parental consent when a State statute
expressly provides specific cost
protections is consistent with sections
632(4)(B) and 640 of the Act. These statutory cost protections
include providing that: (1) A child or
parent would not experience a loss of
benefits because of annual or lifetime
caps under a policy when private
insurance is used to pay for part C
services; (2) a child, parent, or family
member’s health insurance cannot be
discontinued because the coverage was
used to pay for early intervention
services; and (3) health insurance
premiums cannot be increased due to use of the health insurance to pay for
part C services.
We understand the commenters’
concerns about potential litigation by
families and the commenters’ question
about whether all private insurance
policies in a State are subject to that
State’s statutory protections. The
exceptions to parental consent
identified in proposed § 303.520(b)(2)
apply only to the extent that the State
statute provides the protections in that
section for private insurance policies in
the State. Additionally, several State
statutes that fall under this exception
have been in place for years without any
litigation. We recognize that this exception to
parental consent for use of private
insurance to pay for services differs
from the implementing regulations of
part B of the Act, which do not contain
a similar exception. However, part B of
the Act requires FAPE be provided at no
cost. In contrast, part C of the Act
explicitly authorizes States to establish
a system of payments that may result in
a parent incurring some costs. The
exception in proposed § 303.520(b)(2)
ensures that parents are afforded needed
protections while providing the lead
agency with the ability to use private
insurance to pay for part C services in
those States, maximize funding sources,
and use part C funds as a payor of last
resort. The Secretary believes these part C
regulations protect parents in all States
by providing them with information
about the State’s system of payments,
including (if applicable) the relevant use
of private insurance and exceptions
regarding specific statutory no-cost
protections. Additionally, parents
ultimately retain the right to decline or
revoke consent for any particular part C
service in the IFSP for their child if they
do not wish to have their private
insurance used for a particular service. Concerning the commenter’s concern
that personally identifiable information
would be disclosed to private insurers
without consent, we recognize that the
filing of claims for early intervention
services may reveal limited personally
identifiable information not already
disclosed to the insurer, but on balance,
it is the Department’s position that this
disclosure is necessary in this limited
circumstance to implement the
requirements of sections 632(4)(B) and
640 of the Act. Changes: We have clarified
§ 303.520(b)(2) by moving the phrase
‘‘the use of private health insurance to
pay for part C services cannot’’ to each
of § 303.520(b)(2)(i), (b)(2)(ii), and
(b)(2)(iii). We also have replaced the
word ‘‘or’’ that appears at the end of § 303.520(b)(2)(ii) with the word ‘‘and’’.
Finally, we have added the phrase
‘‘expressly provides’’ to the introductory
text of § 303.520(b)(2).
Inability to Pay (§ 303.520(c))
Comment: None.
Discussion: Proposed
§ 303.520(b)(1)(iv) should have applied
to both the use of public insurance and
benefits and private insurance for
payment for services. We have removed
proposed § 303.520(b)(1)(iv), and added
a new § 303.520(c) to reflect the
requirement that the inability to pay
provisions in this section apply to both
the use of public insurance and benefits
and private insurance. Changes: We have removed proposed
§ 303.520(b)(1)(iv) and added new
§ 303.520(c).
Proceeds or Funds From Public
Insurance or Benefits or From Private
Insurance (§ 303.520(c), Redesignated
§ 303.520(d))
Comment: Some commenters
requested clarification on proposed
§ 303.520(c)(3), which provided that
States could exclude from the
calculation of State and local
expenditures under proposed § 303.225
(prohibition against supplanting), the
State portion of funds from a Federal
public benefits program such as
Medicaid. Some commenters objected to
the provision because they viewed it as
administratively burdensome and stated
it would create significant challenges
with data collection and reporting. Discussion: As discussed in the
Analysis of Comments and Changes
section accompanying § 303.225, since
the publication of the IDEA part C
NPRM in May 2007, part C State lead
agencies have raised a number of issues
regarding the MOE provisions in the
part C regulations (which implement
part C’s supplement not supplant
requirements). Therefore, we are
removing proposed § 303.520(c)(3) and
intend to issue an NPRM addressing
MOE requirements under part C of the
Act. Changes: We have removed proposed
paragraph (c)(3) and renumbered the
paragraphs in this section accordingly. Comment: Several commenters,
including a few lead agencies,
supported proposed § 303.520(c),
redesignated § 303.520(d), which
provided that proceeds or funds from
public insurance or benefits or private
insurance are not treated as program
income for purposes of 34 CFR 80.25,
the EDGAR provision regarding program
income. However, some commenters,
including most lead agencies under part
C of the Act, opposed this provision
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60227 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
stating that lead agencies under part C
of the Act generally do not have a
mechanism to track or account for the
use of funds from public insurance or
benefits or private insurance or the
ability to direct how these funds will be
used.
Discussion: The commenters have
misinterpreted proposed § 303.520(c)(1),
redesignated § 303.520(d)(1). Proposed
§ 303.520(c)(1), redesignated
§ 303.520(d)(1), states that for purposes
of 34 CFR 80.25, proceeds or funds from
public insurance or benefits or from
private insurance are not treated as
program income. Therefore, States do
not need to maintain data on these
funds for program income purposes. Changes: None.
Comment: A few commenters
recommended that under section 618 of
the Act, the Department require States
to collect and report to the Secretary
data on the costs assessed to parents and
the payments obtained from public and
private insurance for early intervention
services. These commenters
recommended that the Department
conduct a study to determine how the
regulations concerning the use of
private insurance in § 303.520 and the
States’ systems of payments and fees in
§ 303.521 affect family participation in
part C of the Act. Discussion: Section 618 of the Act
does not require States to report data on
their use of insurance or a system of
payments, and we do not want to place
this added data collection and
paperwork burden on States. The
Department has long required each State
that adopts a system of payments
(including the use of insurance or
family fees to pay for part C services) to
submit its policies and procedures as
part of the State’s part C grant
application. This requirement is
reflected in § 303.203(b). Data from FY
2009 indicate that approximately 23
States have a system of payments that
includes express authority to charge
parents for some part C services. Data
from the last few years indicate an
increase in the number of States that
have adopted a system of payments and
an increase in the fees parents are
charged for part C services in those
States that have the authority to charge
a parent a fee for part C services.
Through the application process, the
Department will continue to obtain
information on whether and how a State
is implementing a system of payments
(including the use of insurance). Each State is unique and its system of
payments policies and procedures are
subject to the public participation
requirements in § 303.208. Through the
public participation process, all stakeholders, including parents of
infants and toddlers with disabilities,
have an opportunity to comment on
whether and what policies and
procedures should be adopted by the
State. The decision of whether the
Department needs to conduct a study on
the impact of a system of payments
(including the use of insurance) on a
family’s decision to participate in part C
of the Act is a policy decision that is
best left to the Department and should
not be a subject of these regulations.
Changes: None.
System of Payments and Fees
(§ 303.521) Comment: Commenters requested that
we define the term, ‘‘actual cost of the
part C services’’ in proposed § 303.521,
which stated that a State’s system of
payments policies must include an
assurance that families will not be
charged any more than the actual cost
of the part C service. Two commenters
requested that this provision expressly
specify that a State can bill both
insurance and parents for early
intervention services as long as the
combination of the two does not exceed
the actual cost of services. One
commenter asked whether family fees
can exceed the actual cost of services. Discussion: Subject to any consent
requirements in §§ 304.420 and 303.520,
the lead agency may use, as part of its
system of payments, funds from
multiple sources (e.g., public insurance
or benefits, private insurance, and
family fees) to pay for each part C
service in an IFSP. However, the lead
agency may not receive funds (whether
from one or a variety of sources, such
as family fees or insurance, to pay for
a particular service) that exceed the
actual cost of providing the service.
Under a State’s system of payments, the
State may not charge a family an
amount that exceeds the actual cost of
providing a particular part C service.
Nor may the State charge a family for
amounts received by the State from
other funding sources for that service.
Also, families may not be charged for
the cost of services specified in
§ 303.521(b)(2), including evaluations
and assessments. The actual cost for a part C early
intervention service may vary by State
and, therefore, it is not appropriate to
define the term ‘‘actual costs of service.’’ Proposed § 303.521(a)(4)(iii) included
two distinct requirements relating to
families not being charged more than
the actual cost of service and families
with insurance not being charged
disproportionately more than those
without insurance. We have clarified
this section by separating the two requirements into paragraphs (a)(4)(iii)
and (a)(4)(iv) of this section,
respectively. The language in new
§ 303.521(a)(4)(iv) is the same as
proposed § 303.521(a)(4)(iii), regarding
the prohibition that families with public
insurance or benefits or private
insurance not be charged
disproportionately more than families
who do not have public insurance or
benefits or private insurance. In
§ 303.521(a)(4)(iii), we have further
clarified in a parenthetical that a family
may not be charged any more than the
actual cost of the part C service
(factoring in any amount received from
other sources for payment for that
service).
Changes: We have added the
following parenthetical ‘‘(factoring in
any amount received from other sources
for payment for that service)’’ to revised
§ 303.521(a)(4)(iii), regarding the
requirement that the lead agency cannot
charge a family more than the actual
cost of a service. We have moved the
language from proposed
§ 303.521(a)(4)(iii) to a new
§ 303.521(a)(4)(iv) regarding the
provision that families with public
insurance or benefits or private
insurance will not be charged
disproportionately more than families
who do not have public insurance or
benefits or private insurance. Comment: One commenter
recommended that the ‘‘or’’ in
§ 303.521(a) should be ‘‘and/or.’’ Discussion: We agree with the
commenter that the language in the
second parenthetical in the introductory
text of § 303.521(a) should be amended
to make clear that the fees charged to a
family under a State system of payments
can include one or more of the
following funding sources: A child’s or
parent’s public insurance, public
benefits, or private insurance. Therefore,
we have amended § 303.521(a)
accordingly. Changes: We have amended the
second parenthetical in the introductory
text of § 303.521(a) to say ‘‘(including
any fees charged to the family as a result
of using one or more of the family’s
public insurance, public benefits, or
private insurance).’’ Comment: One commenter requested
that the regulations in § 303.521(a)
specify how and how often a State must
evaluate a family’s ability or inability to
pay. Discussion: A State is not required to
reevaluate a parent’s ability or inability
to pay. Therefore, it is the Department’s
position that it is not appropriate to add
such a provision to § 303.521(a) because
some States may not wish to reevaluate
a parent’s ability to pay given that a
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child may receive services at most for
three years and many children do not
enter the part C program until they are
at least 18 months of age.
However, if a State requires that a
lead agency’s determination of a
parent’s ability or inability to pay be
reevaluated on an annual or other basis,
the State must include such a provision
in its system of payments policies that
is provided to parents under
§ 303.521(e) in order for parents to be
informed of when and how they may be
required to provide financial
information. We are adding language
requiring the policies to specify when
and how the State makes its
determination of the ability or inability
to pay. Upon further review of proposed
§ 303.521(a)(3), we realized that the
State’s policies must define not only a
parent’s inability to pay but also a
parent’s ability to pay. We have added
‘‘ability to pay’’ to the definitional
requirement. Additionally, we are
clarifying that in defining a parent’s
ability to pay, the State must include
consideration of family expenses such
as extraordinary medical expenses as
many families with infants and toddlers
with disabilities have unusually high
medical expenses. Changes: We have revised
§ 303.521(a)(3) to provide that the
State’s system of payments policies
must indicate when and how the State
makes its determination regarding a
parent’s ability or inability to pay, and,
in defining the ability to pay, include
extraordinary medical expenses as an
example of family expenses. Comment: One commenter requested
that the final regulations provide further
guidance on developing a State system
of payments. The commenter
recommended that, to ensure that a
system of payments does not discourage
families from participating in early
intervention programs, the Department
should develop regulations that set a
maximum contribution limit by
families. Discussion: Section 632(4)(B) of the
Act, concerning the definition of ‘‘early
intervention services,’’ and § 303.521,
concerning a system of payments and
fees, provide States with the option to
establish a system of payments that sets
forth policies specifying the amount of
fees (including any fees charged to the
family as a result of using one or more
of the family’s public insurance, public
benefits, or private insurance) that are
subject to the State’s system of
payments. While we appreciate the
commenter’s request that the regulations
identify maximum fiscal contributions
for parents, the Department’s position is that States must have flexibility in
determining the system of payments,
including any fee structure.
However, the State’s fee structure is
subject to the requirements in
§ 303.521(a), which requires that
families not be charged more than the
actual cost of the part C service and that
a parent’s inability to pay will not result
in a delay or denial of services under
this part. We also expect to provide
additional technical assistance and
guidance to States on State system of
payments. Changes: None.
Comment: Two commenters
recommended that we revise
§ 303.521(a) to require that States
provide families with an explanation of
each item that is billed to them or to
their insurance to ensure that the
parents can confirm that the charges
match the level or amount of service
provided to children and their families. Discussion: Part C of the Act does not
address the methods that States must
use to bill parents for part C services.
However, many lead agencies have
developed policies and procedures
regarding billing parents for part C
services. With regard to insurance
billing, lead agencies may, but are not
required under part C of the Act to,
develop methods or a process to inform
a parent of each item billed to the
insurance of the parent or the amount of
insurance proceeds received for
payment of early intervention services
for their infant or toddler with a
disability and the child’s family. The
Department’s position is that including
such provisions in the regulations is not
necessary because it is best left to States
to determine which billing methods are
most compatible with established State
policies and procedures. Changes: None.
Comment: One commenter
recommended requiring States to
provide an assurance that the quality of
part C services will be maintained
regardless of the financial situation of
the child or family. Discussion: Consistent with section
635(a)(4) of the Act, regarding
requirements for a statewide system,
and § 303.340, regarding IFSPs, each
lead agency under part C must ensure,
for each infant or toddler with a
disability, regardless of financial
situation, the development, review, and
implementation of an IFSP that is
consistent with the definition of that
term in § 303.20, and meets the
requirements in §§ 303.342 through
303.345. The lead agency under part C
of the Act also must ensure the
provision of the early intervention
services identified in the child’s IFSP, regardless of the financial situation of
the child or family. Given these
provisions, the Department’s position is
that requiring States to provide the
additional assurance suggested by the
commenter is not necessary.
Changes: None.
Comment: One commenter opposed
the language in § 303.521(a)(6) that
permits the lead agency to use part C or
other funds to pay the parent’s share in
a State with a system of payments with
family fees, when the parent is
determined able to pay. According to
the commenter, this provision could be
read to permit an agency to obligate part
C funds for costs or fees that a parent
might otherwise be required to pay. The
commenter requested that this
paragraph be clarified or that part C
funds be increased to fund this
requirement. Discussion: Section 303.521(a)(6)
provides States with a system of
payments the option of using part C
funds to pay for those costs, such as co-
payments, that would be incurred by the
parent based on the use of the child’s or
parent’s public benefits or insurance or
private insurance to pay for part C
services. By permitting, but not
requiring, lead agencies to use part C
funds to pay for a parent’s out-of-pocket
costs even when the parent is able to
pay, the lead agency may be able to
neutralize the financial impact on a
parent and thus encourage the parent to
provide any consent needed under
§ 303.520. We also have revised this
section to further clarify that if a parent
is determined unable to pay, the lead
agency must use part C or other funds
to pay for the costs identified in
§ 303.520(b)(2) or the fees charged to the
parent under § 303.521(a)(1). Changes: We have revised
§ 303.521(a)(6) to clarify that the lead
agency may use part C funds to pay for
costs such as premiums, deductibles, or
copayments identified in § 303.520(b)(2)
that it must use part C or other funds to
pay for the costs identified in
§ 303.520(b)(2) or the fees charged to the
parent under § 303.521(a)(1) for a parent
determined unable to pay. Comment: One commenter
recommended that a State with a system
of payments that requires a family cost
share or private insurance component
should not be allowed to charge families
for services that must be provided to a
child in order for the child to receive
FAPE under part B of the Act,
particularly once a child turns three and
services are provided at no cost to
parents. Discussion: If a child is eligible at or
before age three under part B of the Act
to receive FAPE and the service is
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60229 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
identified on the child’s IEP as part of
FAPE for that child, then, under 34 CFR
300.17(a), that service must be provided
at no cost to the parent. If a State elects
to continue to provide part C services
for children age three and older who
were receiving part C services, and a
parent provides consent for such
services, the part C provisions apply,
including those relating to a State
system of payments.
Changes: None.
Comment: One commenter asked,
with respect to § 303.521(c), whether a
State that has a FAPE mandate for
children under the age of three or a
State that uses funds under part B of the
Act to serve children under age three
can have a system of payments to
provide part C services to children from
age three until kindergarten. Discussion: A State that elects to offer
services under § 303.211 and has a State
law mandating FAPE for children with
disabilities for particular ages (such as
ages three through five) must ensure
that services that are a part of FAPE for
an eligible child in that age range are
provided at no cost. If there are part C
services that are available to a child
with a disability under § 303.211 that
are not part of FAPE for that child, the
State may adopt a system of payments
for such services. Changes: None.
Comment: One commenter requested
clarification on § 303.521(b), concerning
mandatory public agency functions that
are not subject to fees that public
agencies must perform. The commenter
expressed concern that requiring these
functions ‘‘to be carried out at public
expense by a State’’ prohibits local early
intervention programs from using local
funds to pay for these functions. Discussion: The requirement in
§ 303.521(b) does not prohibit local
early intervention programs from using
local funds to pay for these functions.
For clarity, we have removed the phrase
‘‘by a State.’’ Changes: We have removed the
phrase ‘‘by a State’’ from § 303.521(b). Comment: Several commenters
recommended that we require a State to
include in its system of payments
policies information on the family’s
procedural safeguards. Discussion: We agree with
commenters that States must inform
parents about procedural safeguards
when the State determines a parent’s
ability to pay or imposes a fee on
parents. We have added in new
§ 303.521(e) the requirement that States
establish written policies as part of their
system of payments to inform parents
about the availability of procedural
safeguards. We have clarified that the State must
inform parents of the availability of
existing dispute resolution procedures,
including participating in mediation in
accordance with § 303.431, requesting a
due process hearing under § 303.436 or
§ 303.441, whichever is applicable, or
filing a State complaint under § 303.434.
Additionally, we have provided States
with the flexibility to use any other
procedure established by the State for
speedy resolution of financial claims,
provided that such use does not delay
or deny a parent’s procedural rights
under this part. If a State uses such
other procedures, it must inform parents
of those procedures. We also have clarified that a State
may inform parents of these procedural
safeguard options by either providing
parents with a copy of the State’s system
of payments policies when obtaining
consent for the provision of early
intervention services under
§ 303.420(a)(3) or including this
information with the notice provided to
parents in § 303.421. Changes: We have added a new
§ 303.521(e).
Subpart G—State Interagency
Coordinating Council
Composition (§ 303.601)
Comment: One commenter requested
that the Department require a State
representative of the child protective
services agency to serve as a member of
the State Interagency Coordinating
Council (Council). Discussion: Neither section 641(b) of
the Act nor § 303.601 requires the
Governor to appoint, nor prohibits the
Governor from appointing, to the
Council a State representative from the
agency responsible for child protective
services. Under section 641(b)(1)(L) of
the Act and § 303.601(a)(12), the
Governor must appoint a representative
from the State child welfare agency that
is responsible for foster care in that
State (i.e., the State agency that is
responsible for administering Title
IV–E of the SSA in the State). In many
States, this State child welfare agency is
also the State child protective services
agency that is responsible for
administering CAPTA. Section 641(b)(2) of the Act and
§ 303.601(c) permit the Governor to
appoint to the Council members other
than those specified by the Act. The
Governor may appoint to the Council a
representative from the State agency
responsible for administering CAPTA if
the Governor determines it is
appropriate in that particular State.
Responsibilities of this State agency also
may include coordinating child find efforts or implementing section
637(a)(6) of the Act, which requires the
State to have referral policies for a child
under the age of three who is involved
in a substantiated case of child abuse or
neglect or who is identified as affected
by either illegal substance abuse or
withdrawal symptoms resulting from
prenatal drug exposure. Additionally,
nothing in the Act would prevent the
Governor from appointing a
representative from the State agency
responsible for implementing other
early childhood programs such as the
Maternal, Infant, and Early Childhood
Home Visiting Program passed on
March 23, 2010, amending Title V of the
Social Security Act or a representative
from the State’s EHDI system.
Given that the decision to appoint any
other members to the Council (other
than those specified in section 641(b)(1)
of the Act) is at the discretion of the
Governor of the State according to the
needs of that State, we decline to
include in § 303.601 the appointment
suggested by the commenter. Changes: None.
Comment: A few commenters
supported proposed § 303.601(a)(1)(iii),
which stated that a parent could not be
appointed as a member of the Council
if he or she was an employee of a public
or private agency involved in providing
early intervention services because, in
their view, including parents who are
also EIS providers on the Council would
be a conflict of interest. However, the
majority of commenters opposed this
proposal because, in their view, parents
who are also EIS providers may bring a
valuable perspective to the Council in
terms of understanding issues from
different standpoints and may be able to
anticipate the impact of a given policy
or procedure in unique ways. Some
commenters questioned whether
preventing parents from serving on the
Council somehow suggests that the
contribution and comments of parents
of children with disabilities who are not
also employed by EIS providers are
more valuable than parents who are
employed by EIS providers. One
commenter recommended that these
regulations require that the Council’s
bylaws or State law stipulate that no
member, including parents who are EIS
providers, may vote on an issue that
may represent a conflict of interest. Discussion: We agree that the
appointment to the Council of parents of
children with disabilities who are also
employed by EIS providers could bring
a unique perspective to the work of the
Council. For this reason, we have
removed proposed § 303.601(a)(1)(iii),
which would have prohibited an
employee of a public or private agency
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involved in providing early intervention
services from being appointed and
serving as a parent member of the
Council. The language in proposed
§ 303.601(a)(1)(iii) reflected the
Department’s recommendation in the
note to current § 303.600 that parents
selected to serve on the Council not be
employees of any agency involved in
providing early intervention services.
With the removal of proposed
§ 303.601(a)(1)(iii), parents who are
employees of a public or private agency
involved in providing early intervention
services could serve as parent members
of the Council in accordance with the
requirements that at least 20 percent of
the Council be comprised of parent
members of children with disabilities
aged 12 or younger and at least one
parent member be the parent of an
infant or toddler with a disability or a
child with a disability aged six years or
younger. Finally, like all Council
members, pursuant to § 303.601(d), a
parent member of the Council who is an
employee of a public or private agency
involved in providing early intervention
services may not cast a vote on any
matter that would provide direct
financial benefit to that member or
otherwise give the appearance of a
conflict of interest under State law.
Changes: We have removed proposed
§ 303.601(a)(1)(iii), which stated that a
parent member on the Council may not
be an employee of a public or private
agency involved in providing early
intervention services. Comment: Section 303.601(b), which
permits a Governor to appoint a member
of the Council to represent more than
one program or agency from the list in
section 641(b) of the Act, drew a
number of comments. Most commenters
objected to this provision due primarily
to concerns that an individual
representing more than one program or
agency on the Council may have
potential conflicts of interest in carrying
out his or her duties. Discussion: Section 641(b) of the Act
is silent on the issue of whether the
Governor must appoint separate
individuals to represent each of the
constituencies that must be represented
on the Council. The Department’s
position is that it is a reasonable
interpretation to allow one individual to
serve more than one required Council
member role because, in some States, a
single agency performs multiple
functions that coincide with the Council
representation requirements in section
641(b) of the Act. Additionally, allowing
a member of the Council to represent
more than one program or agency would
not result in actual or apparent conflicts
of interest because, pursuant to § 303.601(d), no member of the Council
may cast a vote (and, thus, would need
to recuse himself or herself from the
vote) on any matter that would provide
direct financial benefit to that member
or otherwise give the appearance of a
conflict of interest under State law.
Changes: None.
Use of Funds by the Council (§ 303.603) Comment: One commenter requested
clarification on when or why the
Council, which is an advisory body,
would conduct hearings pursuant to
§ 303.603(a)(1). The commenter stated
that while the Council may participate
in hearings, given its advisory nature, it
would not be appropriate for the
Council to hold hearings. Discussion: Section 641(d) of the Act
specifically allows the Council, subject
to the approval of the Governor, to
prepare and approve a budget using part
C funds to conduct hearings and forums
as may be necessary to carry out its
functions under part C of the Act. The
Act does not specify the circumstances
under which the Council may convene
a hearing or forum. It is not appropriate
for the Department to stipulate such
circumstances, as that decision is best
left to the Council. Changes: None.
Comment: One commenter requested
that the Department revise the
regulations to provide compensation for
parents who serve on the Council. A few
commenters recommended that parent
members of the Council receive
compensation regardless of their
employment status. Discussion: Providing compensation
for parents who serve on the Council is
specifically addressed in § 303.603(a)(2)
and (a)(3), which is consistent with
section 641(d) of the Act. Section
303.603(a)(2) and (a)(3) provides that all
Council members, including parents,
may be reimbursed for reasonable and
necessary expenses for attending
Council meetings and performing
Council duties (including child care for
parent members) and may receive
compensation if not employed or if
required to forfeit wages from other
employment when performing official
Council business. Changes: None.
Functions of the Council—Required
Duties (§ 303.604) Comment: One commenter
recommended that the final regulations
expressly state that the Council may
continue to work with the lead agency
on preparing the mandatory annual
report that the Council must submit to
the Governor and to the Secretary, and
that if the Council concurs with the State’s APR that is prepared by the lead
agency, the Council may elect to sign a
statement indicating its concurrence
with the lead agency’s APR in lieu of
the Council preparing its own separate
annual performance report.
Discussion: Section 303.604(c),
regarding the requirement that the
Council annually report to the Governor
and the Secretary on the status of early
intervention service programs for
infants and toddlers with disabilities
and their families under part C of the
Act, remains substantively unchanged
from current § 303.654 and is consistent
with section 641(e)(1)(D) of the Act.
Section 303.604(c)(2) expressly provides
that the Council’s annual report must
contain the information required by the
Secretary. Under current Departmental policy,
the Council may choose to prepare and
submit its own annual report to meet
the requirements in section 641(e)(1)(D)
of the Act (current § 303.654 and new
§ 303.604(c)), or certify its concurrence
with the APR submitted by the lead
agency under § 303.702(b)(2). Therefore,
it is the Department’s position that
adding language regarding how the
Council may meet its annual reporting
requirement is not necessary. Changes: None.
Comment: A few commenters
recommended that § 303.604(a)(3),
regarding the promotion of methods for
intra-agency and interagency
collaboration on child find, monitoring,
financial responsibility, and the
provision of early intervention services
and transition, be deleted because,
according to these commenters, the
language in this section is not aligned
with section 641(e) of the Act.
Specifically, the commenters suggested
that section 641(e) of the Act does not
include or imply that the functions of
the Council include promoting methods
for interagency collaboration regarding
child find, monitoring, financial
responsibility, provision of early
intervention services, and transition.
Another commenter requested that the
Department clarify the meaning of the
term ‘‘methods,’’ as it is used in
§ 303.604(a)(3). Discussion: Under section 641(e) of
the Act, the functions of the Council
include, among other duties, advising
and assisting the lead agency in carrying
out its single line of responsibility for
the State’s part C statewide system
under 635(a)(10) of the Act. The single
line of responsibility covers, in part,
general supervision and monitoring;
coordination of Federal, State, local and
private resources; assignment of
financial responsibility to the
appropriate agency; development of
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60231 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
procedures that ensure timely service
provision; resolution of intra-agency
and interagency disputes; and entry into
interagency agreements that define each
agency’s financial responsibility for
early intervention services and that
include all additional components
necessary for ensuring cooperation and
coordination between agencies. One of
the Council’s roles under section
641(e)(1)(C) of the Act is to advise the
lead agency and the SEA on early
childhood transition policies. The
Department has found that
noncompliance with part C
requirements can be due to barriers
identified by lead agencies in intra-
agency and interagency coordination
that correspond to the areas under the
lead agency’s single line of
responsibility (i.e., child find,
monitoring, financial responsibility,
provision of early intervention services,
and transition). Thus, the Department’s position is
that the language in § 303.604(a)(3) is
consistent with section 641(e) of the
Act. Section 303.604(a)(3) ensures that
the Council advises the lead agency in
exercising its authority under section
635(a)(10) of the Act to ensure that there
is a single line of responsibility for the
State’s part C statewide system. Additionally, although section
641(e)(1)(A) of the Act only refers to
interagency agreements, we have
included in § 303.604(a)(3), the
Council’s role in promoting intra-agency
agreements. We have included the
reference to intra-agency agreements
because within many lead agencies that
are also SEAs, separate offices
administer the early intervention service
program under part C of the Act and the
preschool program under part B of the
Act. To facilitate the identification of,
and the provision of early intervention
services to, infants and toddlers with
disabilities and their families, many
SEA lead agencies have developed intra-
agency memoranda or agreements to
meet the lead agency’s general
supervision responsibilities under
section 635(a)(10) of the Act (including
specifically the areas of child find,
monitoring, financial responsibility,
provision of early intervention services,
and transition). In § 303.604(a)(3), we have
intentionally used the word ‘‘methods’’
rather than ‘‘interagency agreements.’’
The term ‘‘methods’’ is intended to be
broader than ‘‘interagency agreements’’
and to include entering into interagency
agreements; this use of the term
‘‘methods’’ aligns § 303.604(a)(3) with
the reference in section 640(b) of the Act
to methods of ensuring services (which
may include an interagency agreement or other mechanism for interagency
coordination). We believe that further
clarification of the term ‘‘method’’ is not
needed.
Changes: None.
Comment: One commenter
recommended revising the reporting
period for the annual report to the
Governor and to the Secretary in
§ 303.604(c)(2). The commenter stated
that the reporting period is inconsistent
with section 641(e)(1)(D) of the Act. Discussion: Section 641(e)(1)(D) of the
Act does not specify the reporting
period; rather, it requires the Council to
prepare and submit to the Governor and
to the Secretary an annual report on the
status of early intervention programs for
infants and toddlers with disabilities
and their families in the State. The
language in § 303.604(c)(2) is consistent
with this requirement and clarifies that
the information in the report be ‘‘for the
year for which the report is made.’’
Thus, if the Council submits a report to
the Governor and Secretary for FFY
2006, § 303.604(c)(2) simply requires
that the information in that report be
from the FFY 2006 reporting period (i.e.,
July 1, 2006 through June 30, 2007). Changes: None.
Comment: A few commenters
expressed concern that the regulations
no longer stipulate that the Council
must advise and assist the lead agency
in the development and implementation
of the policies that constitute the
statewide system and suggested that the
omission of this requirement would
diminish the authority of the Council. Discussion: Sections 303.604 and
303.605 incorporate the requirements in
section 641(e)(1) and (e)(2) of the Act,
regarding the functions, duties, and
authorized activities of the Council.
Section 641(e)(1)(B) and § 303.604(a)(4)
continue to require the Council to
advise and assist the lead agency in
preparing the State’s part C application
and any amendments thereto. The
requirement in current § 303.650(a)(1)
that the Council advise and assist the
lead agency in the development and
implementation of the policies that
constitute the part C statewide system
was based on the requirement in section
641(e)(1)(B) of the Act that the Council
advise and assist the lead agency in
preparing its State’s part C application.
Prior to the 2004 amendments, the Act
required each State to submit, as part of
its part C application, the State’s
policies that constituted its part C
statewide system. However, in 2004, section 634 of the
Act was revised to no longer require
each State to submit, as part of its part
C application, all of the State’s policies
for the statewide system identified in section 635 of the Act; instead only
those policies, procedures, descriptions,
methods, certifications, and other items
that are identified or referenced in, or
the Department determines are needed
under, section 637(a) of the Act and
subpart C of these regulation must be
included in a State’s grant application.
Thus, the function of the Council in
advising and assisting the lead agency
in the preparation of its part C
application, would include advice and
assistance concerning any policies the
lead agency developed to meet the
requirements in section 637(a) of the
Act. The Council also has an
opportunity to comment on other State
part C policies when the lead agency
adopts or revises its policies that are
part of the State’s part C statewide
system because the lead agency must
make those policies available for public
comment and hearing based on the
requirements in § 303.208(b).
Changes: None.
Authorized Activities by the Council
(§ 303.605) Comment: None.
Discussion: With The Improving Head
Start for School Readiness Act of 2007,
Congress amended the Head Start Act.
Section 642B of the Head Start Act now
requires the Governor of each State to
designate or establish a council to serve
as the State Advisory Council on Early
Childhood Education and Care (referred
to as State Advisory Councils). 42 U.S.C.
9837b(b)(1)(A)(i). The overall
responsibility of each State Advisory
Council on Early Childhood Education
and Care is to lead the development or
enhancement of a high-quality,
comprehensive system of early
childhood development and care that
ensures statewide coordination and
collaboration among the wide range of
early childhood programs and services
in the State, including child care, Head
Start, the IDEA programs (including the
IDEA program under part C of the Act
and the preschool program under
section 619 and part B of the Act), and
pre-kindergarten programs and services.
Because this requirement regarding
State Advisory Councils on Early
Childhood Education and Care was
established after the proposed part C
regulations were published, in final
§ 303.605 we have added coordination
with these State Advisory Councils as
an authorized activity of the SICC. Such
coordination may allow States to offer
joint professional development
opportunities for EIS professionals with
other early learning professionals
including those who work in child care,
Head Start and Early Head Start, State
funded preschool, 619 programs, and
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60232 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
early elementary education to address
such issues as school readiness across
all the major domains of early learning
and transition to elementary school.
This change will not impose an
additional burden on the SICC because
it is an optional duty under § 303.605
and not a required duty under
§ 303.604.
Changes: New § 303.605(c) has been
added to allow the SICC to coordinate
and collaborate with the State Advisory
Council on Early Childhood Education
and Care, as described in section
642B(b)(1)(A)(i) of the Head Start Act,
42 U.S.C. 9837b(b)(1)(A)(i).
Subpart H—Federal and State
Monitoring and Enforcement;
Reporting; and Allocation of Funds
Comment: None.
Discussion: We have revised the
heading of subpart H to reflect the titles
and sequence of the sections in this
subpart. Changes: We have changed the title of
subpart H by removing the terms
‘‘administration’’ and ‘‘technical
assistance’’ and adding the term
‘‘reporting.’’ We also have reordered the
words in the title to better reflect the
order of the sections in this subpart.
State Monitoring and Enforcement
(§ 303.700)
Comment: One commenter
recommended that § 303.700(a)(2),
which requires lead agencies to make
determinations annually about the
performance of EIS programs using the
categories in § 303.703(b), be deleted
because the requirements have no
statutory authority. Discussion: We disagree with the
commenter. Section 303.700(a)(2)
requires lead agencies to make annual
determinations about the performance
of EIS programs. This requirement is
consistent with sections 616(a)(1)(C),
(a)(3), (b)(2)(C)(i), (b)(2)(C)(ii)(I), and (e)
and 642 of the Act. Sections 616(a)(1)(C) and 642 of the
Act require the Secretary to require
States (and the designated lead agencies
charged with implementing part C of the
Act in the State under section 635(a)(10)
of the Act) to monitor and enforce part
C of the Act in accordance with the
monitoring priorities established by the
Secretary under section 616(a)(3) of the
Act (as modified by section 642 of the
Act) and the statutory enforcement
options identified in section 616(e) of
the Act. Sections 616(a)(3) and 642 of the Act
require the Secretary to require States to
monitor EIS providers located in the
State using quantifiable indicators in
each of the priority areas specified in section 616(a)(3) of the Act (as modified
by section 642 of the Act), as well as any
qualitative indicators that are needed to
measure performance in those priority
areas, except the State exercise of its
general supervisory responsibility
because ‘‘State general supervisory
responsibility’’ applies only to States.
Section 616(a)(1)(C)(ii) of the Act
requires each State to enforce part C of
the Act in accordance with sections
616(e) and 642 of the Act. Section 616(e)
of the Act describes the enforcement
actions the Secretary must take if the
Secretary determines, based on the
information provided by the State in its
APR, information obtained through
monitoring visits, and any other
publicly available information, that the
State needs assistance, needs
intervention, or needs substantial
intervention in implementing the
requirements of part C of the Act.
These statutory provisions must be
read in conjunction with sections
616(b)(2)(C) and 642 of the Act, which
require State lead agencies to: (1)
Publicly report on the performance of
each EIS program using the State’s
targets established in its SPP under the
priority areas described in section
616(a)(3) of the Act, and (2) report
annually to the Secretary through the
APR on the performance of the State in
meeting the State’s targets in the SPP. Thus, lead agencies must make
annual determinations about the
performance of each EIS program using
the categories in section 616(d)(2) and
(e) of the Act and § 303.703(b). This
requirement stems from the statutory
requirement that lead agencies must
monitor EIS providers located in the
State using quantifiable and qualitative
indicators as specified in section
616(a)(3) of the Act (as modified by
section 642 of the Act), enforce part C
of the Act in accordance with section
616(e) of the Act (which refers to the
requirement that the Secretary make
annual determinations about the
performance of each State using these
same determination categories), and
from sections 616(b)(2)(C)(i) and
(b)(2)(C)(ii)(I) and 642 of the Act, which
require lead agencies to analyze and
publicly report on the performance of
each EIS program on an annual basis. Changes: None.
Comment: One commenter expressed
concern that the Department uses the
terms ‘‘program’’ and ‘‘provider’’
inconsistently throughout these
regulations and that the reference in
§ 303.700(a)(3) to EIS program should
instead or also include a reference to an
EIS provider. Discussion: We recognize that
clarification is needed in the use of the term EIS program in § 303.700(a)(3),
regarding the available appropriate
enforcement mechanisms identified in
§§ 303.700(a)(3) and 303.704(a)(2) that
the lead agency must use if it
determines (for two consecutive years)
that an EIS program needs assistance. If
the lead agency determines for two
consecutive years that an EIS program
needs assistance, it must take one of two
actions: (1) Advise the EIS program of
available sources of technical assistance
that may help the EIS program or (2)
impose conditions on the funds it
provides to the EIS program, or if the
lead agency provides funds to an EIS
provider (that is part of the EIS program)
that is partially the reason the EIS
program is in need of assistance for two
years, then the EIS provider. If the lead
agency provides part C funds to an EIS
provider, it may be appropriate for the
lead agency to impose conditions on the
part C funds that the lead agency
provides to the EIS provider. The lead
agency may impose conditions on its
funding of an EIS program or EIS
provider in lieu of, or in addition to,
providing technical assistance under
§ 303.700(a)(3).
Changes: We have added the phrase
‘‘or, if the lead agency does not provide
part C funds to the EIS program, an EIS
provider’’ to the parenthetical in
§ 303.700(a)(3).
Comment: One commenter
recommended that § 303.700(a)(4) be
revised to require the lead agency to
report ‘‘frequently,’’ and not ‘‘annually,’’
on the performance of its State and each
EIS program located in its State.
Discussion: Section 303.700(a)(4)
reflects the requirements in sections
616(b)(2)(C)(ii)(I) and 642 of the Act,
which require State lead agencies to
report annually to the public on the
performance of each EIS program
located in the State in relation to the
State’s SPP targets. While a lead agency
may elect to report more frequently to
the public on the performance of its EIS
programs, we do not believe that these
regulations should require a lead agency
to do so.
Changes: None.
Comment: One commenter stated that
the proposed language in § 303.700(b),
while placing particular emphasis on
requirements that are most closely
related to improving early intervention
results for infants and toddlers with
disabilities and their families, was
excessive and may not result in better
services. The commenter further
recommended that every effort be made
to clarify and minimize the words in
this paragraph to better focus on direct
services, child and family outcomes,
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and the IFSP process and service
implementation.
Discussion: Section 303.700(b)
incorporates the language from section
616(a)(2) of the Act (as modified by
section 642 of the Act), regarding the
primary focus of Federal and State
monitoring. State monitoring
requirements are addressed in more
detail, including the areas mentioned by
the commenter, through the SPP/APR
process. For example, as part of the
SPP/APR process, the Secretary has
established monitoring priorities and
indicators for States that reflect the
goals of improving early intervention
results and functional outcomes for
infants and toddlers with disabilities
while ensuring that EIS programs
comply with key part C requirements,
including those relating to the timely
provision of early intervention services,
child outcomes, family capacity, timely
evaluations, assessments, initial IFSP
development, and transition. Thus, the
revisions to § 303.700(b) recommended
by the commenter are not necessary. Changes: None.
Comment: A few commenters
recommended adding child find, public
awareness, eligibility, and service
provision to § 303.700(d), which lists
the areas on which the State must
annually collect and report data. One
commenter recommended that we
include in these regulations the
Department’s SPP indicator that
requires States to evaluate the
effectiveness of their part C program as
it relates to family outcomes. Another
commenter recommended that these
regulations require States to report to
the Secretary on family outcomes. The
commenter also recommended that, if
States are required to report on family
outcomes, the regulations should clarify
the definition of family supports and
services that are identified through the
family assessment. Discussion: Section 616(a) of the Act
(as modified by section 642 of the Act)
requires States to focus their monitoring
activities on improving early
intervention results and functional
outcomes for infants and toddlers with
disabilities and meeting the program
requirements in part C of the Act.
Section 616 of the Act further requires
that the Secretary establish indicators to
adequately measure performance in
several priority areas. The Secretary has established 14 such
indicators under part C of the Act for
State reporting in the SPP/APR, and,
through the OMB public review process
for information collections, has solicited
public comments on these indicators
several times since the 2004
amendments to the Act. These indicators address critical, substantive
requirements of part C of the Act,
including those relating to child find for
children ages birth to one year and birth
to three years; provision of early
intervention services in natural
environments; early intervention child
outcomes; family capacity; timely initial
evaluations, assessments and IFSP
development; timely service provision;
and transition services. While not
specifically included as an SPP/APR
indicator, the Department’s position is
that public awareness is covered under
the two child find indicators. For
example, a State must have an effective
public awareness program to ensure that
eligible infants and toddlers are
identified for early intervention
services.
Finally, issues related to family
outcomes are adequately addressed by
the SPP/APR indicator that measures
family capacity because that indicator is
designed to evaluate whether families
know their rights, can effectively
communicate their needs, and can assist
their children to develop and learn.
Moreover, we believe that it is not
appropriate to include in these
regulations any specific SPP/APR
indicator because the Secretary must
retain flexibility to revise indicators as
necessary. Changes: None.
Comment: One commenter objected to
the language in § 303.700(e) that
requires a State, when it identifies
noncompliance with the requirements
of part C of the Act by EIS programs and
EIS providers, to ensure that the
noncompliance is corrected as soon as
possible and in no case later than one
year after the State’s identification of the
noncompliance. The commenter
suggested that a one-year timeline for
correction is unreasonable. In contrast,
a few commenters recommended that
§ 303.700(e) be revised to require that all
identified noncompliance be corrected
as soon as possible, but no later than 90
days after identification. Discussion: Correcting
noncompliance as soon as possible is a
critical responsibility of lead agencies
and EIS providers, and, as discussed in
the preamble of subpart B of these
regulations, the Department’s position is
that correction as soon as possible but
no later than one year is a reasonable
timeframe for an EIS provider to correct
noncompliant policies, procedures, or
practices and for the lead agency to
verify that the EIS program or EIS
provider is complying with the
requirements of part C of the Act. The Department’s position is that a
90-day period from the identification of
noncompliance would not be workable because it is unlikely that all instances
of noncompliance could be corrected in
that timeframe. For example, if a lead
agency identified an EIS provider as
noncompliant in making individualized
decisions concerning the settings in
which infants or toddlers with
disabilities receive early intervention
services, the lead agency would need to
determine the potential causes of the
noncompliance and appropriate
corrective actions, which might include
training service coordinators, reviewing
IFSP Team guidelines, or examining
other policies, procedures or practices,
to ensure that the EIS provider had
corrected any noncompliant policies,
procedures, or practices, and that the
IFSP Teams, subsequent to those
corrections, were making EIS setting
determinations consistent with part C
requirements. To take corrective action
and verify correction in a case such as
this would likely require more than 90
days to complete.
Through our monitoring experience,
we have observed that, in most cases,
when a lead agency makes a good faith
effort, the needed corrective actions can
be accomplished and their effectiveness
verified within one year from
identification of the noncompliance.
Timely correction of noncompliance is
critical to ensure proper and effective
implementation of part C of the Act.
Therefore, it is the Department’s
position that correction as soon as
possible, but not later than one year
from identification, is appropriate. Changes: None.
State Performance Plans and Data
Collection (§ 303.701) Comment: One commenter supported
the requirement in § 303.701(a) that
each State include in its SPP a
description of how the State will
improve its implementation of part C
requirements. Another commenter
supported the requirement in
§ 303.701(c) that each State collect valid
and reliable information on all SPP
indicators. This commenter requested
that the regulations also require each
State to document the process used to
verify the validity and reliability of the
data provided on the SPP indicators. Discussion: As noted elsewhere in
this preamble, the Secretary has
established 14 indicators in the SPP for
part C of the Act. One of these
indicators (Indicator 14) requires each
State to demonstrate that it reports
timely and accurate data under the
reporting requirements in section 618 of
the Act and in the SPP and APR.
Further, to ensure valid and reliable
data for each SPP/APR indicator, States
must report data in their SPP/APR
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submissions according to required
measurements and from specified data
sources. In addition to the percentages
required in the indicators, lead agencies
are required to provide the actual
numbers used in their calculations. The
Department’s position is that these SPP/
APR requirements address the
commenter’s concern that States
document how they verify the validity
and reliability of the data they report
under the indicators in their APRs.
Changes: None.
Comment: One commenter
recommended that the Secretary not be
permitted to impose additional data
collection requirements on States unless
existing data collection elements are
eliminated. Discussion: The majority of the
information collected by the Secretary
under part C of the Act is required by
sections 616 and 618 of the Act (as those
sections are modified by section 642 of
the Act). Restricting the Secretary’s
ability to collect information, as
requested by the commenter, is not
appropriate because the Secretary needs
the flexibility to collect information
necessary to ensure the effective
operation and implementation of the
part C program. This responsibility
comes not only from the Act, but also
from the Department’s inherent
authority to ensure that the laws it is
charged with implementing are carried
out. Additionally, as discussed
elsewhere in this preamble, the
Department is required to solicit public
comments through the OMB public
review process whenever it intends to
remove or add information collections. Changes: None.
State Use of Targets and Reporting
(§ 303.702) Comment: One commenter
recommended that § 303.702(a), which
requires each State to use the targets
established in the SPP to analyze the
performance of each EIS program in
implementing part C of the Act, be
amended to require each lead agency to
define geographically the local lead
agency or EIS program. Discussion: There is no local lead
agency under part C of the Act, but
rather a State lead agency that is
designated by the Governor in
accordance with section 635(a)(10) of
the Act to be responsible for
implementing part C of the Act in the
State. The lead agency implements the
requirements of a statewide system
under part C of the Act either by using
its own personnel, through contracts
with EIS providers or through other
arrangements, such as interagency
agreements, with State public agencies. Section 303.12 defines EIS providers
as entities or individuals that provide
early intervention services under part C
of the Act. As clarified in section 642(2)
of the Act, EIS providers often serve a
comparable role under part C of the Act
that LEAs serve under part B of the Act.
The definition of an EIS program, in
contrast, is an entity designated by the
lead agency to be responsible for
performance reporting to the Secretary
and the public under §§ 303.700
through 303.702 (see the definition of
EIS program in § 303.11). Although we
expect, in most cases, that the lead
agency will designate its EIS programs
on a geographic basis (e.g., counties,
parishes, and health or school districts),
it is not always feasible to do so.
Therefore, it is the Department’s
position that it is not necessary to
require States to make EIS program
designations by geographic areas. States
currently administer their part C
programs through a variety of
administrative structures. For example,
multiple EIS providers may provide
services in one or more overlapping
geographic areas. Therefore, States
cannot be expected to revise their
existing administrative structures for the
sole purpose of reporting performance
data by geographic areas within a State. Changes: None.
Comment: Section 303.702(b)(1)(i)(A)
requires that the lead agency report
annually to the public on the
performance of each EIS program
located in the State in relation to the
targets in its SPP no later than 60 days
following the State’s submission of its
APR to the Secretary. One commenter
supported this 60-day timeline. Another
commenter disagreed, stating that the
60-day reporting timeline is not
realistic. This commenter recommended
that the lead agency be required to
report to the public as soon as
practicable, but not later than the end of
the calendar year in which the State’s
APR is due to the Secretary. Discussion: We believe that it is
important for the public to be informed
in a timely manner regarding the
performance of each EIS program in
meeting the targets in the State’s SPP.
States are generally required to submit
their APRs to the Secretary by February
1st following the end of the Federal
fiscal reporting period. For example, the
FFY 2006 APR, which requires data to
be reported for the period July 1, 2006
to June 30, 2007 for the FFY 2006
reporting year, was due February 1,
2008. Some data reported in the
February 2008 APR submission were
collected by States in the fall of 2006.
To ensure the usefulness of these data,
we agree with the commenter that States must make the data publicly available as
soon as practicable.
We also agree with the commenter
that additional time may be needed
beyond the 60 days from the date the
State submits its APR. We consider 120
days to be an appropriate timeframe for
States to develop and make public the
reports on the performance of EIS
programs on the targets in the SPP and
have made this change in the
regulations. With this change, a State
will have four months before the State
reports its APR data by EIS program to
the public. Given that States will have
reported to the public on this
information at least two times prior to
the effective date of these regulations,
the Department’s position is that States
will already have effective and efficient
systems in place to report within the
120-day timeframe. Changes: We have revised the
timeline in § 303.702(b) for the State to
report annually to the public on the
performance of each EIS program
located in the State on the targets in the
State’s performance plan to be ‘‘as soon
as practicable but no later than 120
days’’ following the State’s APR
submission.
Enforcement (§ 303.704)
Comment: One commenter stated that
§ 303.704, regarding enforcement under
part C of the Act, requires significant
clarification. For example, the
commenter questioned whether the
Department would impose sanctions if
it determined that a State needed
assistance one year and the following
year determined that the State needed
intervention. Another commenter argued that the
two consecutive year and three
consecutive year timeframes in
§ 303.704(a) and (b) are unrealistic and
that these timeframes, which relate to
the Secretary’s annual determinations
regarding State performance under part
C of the Act, should refer to program
years, not consecutive years. Discussion: Section 303.704
incorporates the language in section
616(e)(1) through (e)(3) of the Act,
which provides the minimum
enforcement actions the Secretary must
take to ensure compliance with the Act
when the Secretary determines that a
State needs assistance for two
consecutive years in implementing the
requirements of part C of the Act, or is
in need of intervention in implementing
the requirements of part C for three
consecutive years, or any time the
Secretary determines that a State needs
substantial intervention in
implementing the requirements of part
C of the Act. It is expected that under
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most circumstances, the Department
will follow the procedures specified in
section 616(e)(1) through (e)(3) of the
Act and § 303.707 in enforcing part C of
the Act. However, sections 616(g) and
642 of the Act make clear that the
Secretary has the authority to use
enforcement mechanisms, including
sanctions under GEPA and EDGAR, to
monitor and enforce the implementation
of part C of the Act.
In instances where the determinations
for a State are different in consecutive
years (e.g., ‘‘needs assistance’’ in year
one and ‘‘needs intervention’’ in the
following year), the Department may use
the enforcement mechanisms under
GEPA and EDGAR in addition to those
identified in the Act and § 303.707.
Whether the Department will need to
use additional enforcement mechanisms
will depend on the unique facts of the
situation. Thus, it is not possible for the
Department to identify in these
regulations all situations in which the
use of those enforcement mechanisms
may be appropriate. Finally, we decline to change the
references in this section from
‘‘consecutive years’’ to ‘‘program years’’
because section 616(e) of the Act, which
is the statutory authority for § 303.704,
refers to consecutive years. Changes: None.
Comment: None.
Discussion: To be consistent with
section 642(3) of the Act, the terms
‘‘instructional’’ and ‘‘instruction’’ in
§ 303.704(a)(1)(ii) have been revised to
refer to ‘‘early intervention service
provision.’’ Changes: The terms ‘‘instructional’’
and ‘‘instruction’’ in § 303.704(a)(1)(ii)
have been revised to refer to ‘‘early
intervention service provision.’’
Withholding Funds (§ 303.705)
Comment: One commenter requested
that the phrase ‘‘minimum reasonable
notice,’’ as used in this section, be
explicitly defined. Discussion: The term ‘‘minimum
reasonable notice’’ is not in § 303.705(a),
which incorporates the requirement in
section 616(e)(4) of the Act that the
Secretary must provide reasonable
notice and an opportunity for a hearing
to a State prior to the withholding of
any funds under the Act to that State.
We believe that ‘‘reasonable notice’’ as
used in § 303.705(a) reflects the
common understanding of the term—
that the notice should be sufficiently
informative and timely given the
circumstances. Thus, we do not believe
that it would be appropriate to further
clarify ‘‘reasonable notice’’ as used in
§ 303.705(a) because what constitutes
reasonable notice will, by necessity, depend on the nature of the details in
each particular situation.
Changes: None.
Comment: One commenter expressed
concern that the terms ‘‘program’’ and
‘‘provider’’ are used inconsistently
throughout these regulations. The
commenter specifically suggested that
the term ‘‘EIS program’’ be added to
§ 303.705(c)(1)(ii), as an entity subject to
the lead agency’s suspension of further
payments of part C funds when the
Secretary withholds those funds to the
State. Discussion: We agree with the
commenter that the term EIS programs
should be added to § 303.705(c)(1)(ii) in
addition to the existing reference to EIS
providers because the terms have
different definitions. Under § 303.12, EIS providers are
entities or individuals that provide early
intervention services under part C of the
Act, regardless of whether they receive
part C Federal funds, and may include,
where appropriate, the lead agency and
other public agencies responsible for
providing early intervention services to
infants and toddlers with disabilities in
the State. EIS programs are different;
under § 303.11, an EIS program is an
entity designated by the lead agency for
reporting under sections 616 and 642 of
the Act and §§ 303.700 through 303.702. Lead agencies do not always provide
part C funds directly to an EIS provider,
but instead may provide part C funds to
an EIS program. Thus, it would be
appropriate to clarify in
§ 303.705(c)(1)(ii) that the lead agency
must not make further payments of
funds under part C of the Act to
specified State agencies, EIS programs
or, if the lead agency does not provide
part C funds to the EIS program, EIS
providers that caused or were involved
in the Secretary’s determination under
§ 303.703(b)(1). Changes: We have added to
§ 303.705(c)(1)(ii) a reference to ‘‘EIS
programs’’ and the phrase ‘‘if the lead
agency does not provide part C funds to
the EIS program,’’.
Public Attention (§ 303.706)
Comment: A few commenters stated
that § 303.706 should not specify the
methods of public notification that
States must use, and that the public
notification language in § 303.706
should be the same as the language in
the corresponding part B regulation,
which allows the State to determine the
methods of notification to the public. Discussion: The public notification
requirement in § 303.706 is consistent
with other public reporting
requirements in subpart H of these
regulations, specifically the public reporting requirements relating to the
SPP and APRs and public reporting on
EIS program performance in
§ 303.702(b)(1)(i)(B). The Department’s
position is that it is important for States
to provide information to the public
related to its monitoring and
enforcement actions in a consistent
manner. Therefore, we decline to revise
§ 303.706 as requested by the
commenters.
Changes: None.
Reports—Program Information
Annual Report of Children Served—
Report Requirement (§ 303.721) Comment: One commenter asked the
Department to clarify the child count
reporting requirements in § 303.721.
Specifically, the commenter asked for
clarification on whether States are
required to pick one date between
October 1st and December 1st and
report the count for that date or report
cumulatively on every child served
between those two dates. Two other
commenters stated that the data
reported to Congress should not be
based on point-in-time counts, but on
cumulative counts of all infants and
toddlers served during the entire
program fiscal year. One commenter recommended that
the Department establish a single due
date for all reports that are required to
be submitted annually under section
618 of the Act and § 303.721. Another
commenter supported the language in
this section because it provides
flexibility for States. Discussion: Section 303.721 describes
the annual report of children served
under part C of the Act that is required
by section 618 of the Act (as modified
by section 642 of the Act). Section
303.721 provides States with the
flexibility to determine the specific date
between October 1st and December 1st
on which to collect the State’s child
count and service settings data under
part C of the Act. States must choose a
date between October 1st and December
1st of each year and collect point-in-
time child count and settings data on
that date. To ensure consistency, States
are encouraged to use the same date
from year to year. We believe it is
appropriate to continue to require States
to report point-in-time data on child
count and settings because the
Department has required point-in-time
data under part C of the Act since 1992.
Revising this standard would impose
burdens on States as they would need
to redesign their data collection
systems, and it also would affect the
Department’s ability to compare data
from multiple years and develop trend
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data. While States are not required to
submit cumulative child count data,
they may provide such additional
information in the child count data
information collection form (Table 1—
Report of Children Receiving Early
Intervention Services in Accordance
with part C).
Concerning combining due dates for
State submissions required under
section 618 of the Act and § 303.721,
States currently have two submission
dates, one for child count data and
service setting data and a second for
child exit and dispute resolution data.
The child count and service setting data
are point-in-time collections taken on a
date between October 1 and December
1 and due the following February 1st.
The child exit and dispute resolution
data are collected throughout the year
and due the November 1st following the
end of the reporting year (July 1 through
June 30). Combining the due dates for
these collections is not appropriate
since they are different types of
collections. Regulating on the due dates
of these data requirements is not
necessary because these data collections
are reviewed through the OMB data
collection process. Nothing prevents a
State from collecting child count and
service setting data at the same point in
time for a particular reporting period if
that reduces the State’s burden in the
data collection process.
Changes: None.
Comment: One commenter
recommended that data elements for the
annual report of children served be
merged and condensed. One commenter
requested that lead agencies be required
to track: (1) Premature infants who, at a
later date, receive early intervention
services but could have been served
earlier if the State had presumptive
eligibility criteria; and (2) families who
decline services due to cost-sharing
requirements.
Discussion: Following the
amendments to the Act in 2004, the
Department examined all of the then-
existing part C data collection
requirements under section 618 of the
Act. Based on that examination, the
Department eliminated two collections
(reporting on numbers of service
personnel and types of early
intervention services) for the section
618 data collection. It is not appropriate
to condense or merge additional data
elements at this time because the data
currently collected are either (1)
required by section 618 of the Act, or (2)
expressly authorized under the Act and
necessary for the Secretary to ensure
proper implementation of the part C
program and to measure program performance under the Government
Performance and Results Act of 1993.
We decline to add, as requested by the
commenter, data collection
requirements for the part C program in
these regulations at this time because
we are sensitive to the concerns of
States and local entities about
increasing data collection burden. We
believe that the data States must collect
under the regulations will enable the
Secretary to effectively monitor and
measure the implementation of the part
C program. We are not convinced that
the benefits associated with collecting
additional data, including that data
suggested by the commenter, would
outweigh the burden on States and local
entities required to collect the data. Changes: None.
Comment: One commenter
recommended that § 303.721(b) be
deleted because the tracking and
reporting requirements in the section
relate to children ages three and older
who are eligible for services under
section 619 of part B of the Act and
should be the responsibility of the
part B program. Discussion: Section 303.721(b)
provides that if a State adopts the option
under section 635(c) of the Act and
§ 303.211 to make early intervention
services under part C of the Act
available to children ages three and
older, the lead agency must report on
the number and percentage of children
with disabilities who are eligible for
services under section 619 of the Act
but whose parents choose for such
children to continue to receive early
intervention services. Therefore,
because these children are being served
under part C of the Act, it is appropriate
for the State part C program, and not the
State part B program, to be responsible
for reporting these data under section
618(a)(1)(B) and 635(c)(3) of the Act and
§ 303.721(b). Changes: None.
Annual Report of Children Served—
Certification (§ 303.723) Comment: One commenter expressed
support for the requirement in § 303.723
that the lead agency certify the accuracy
of the data submitted under § 303.721.
Two other commenters recommended
deleting this section in its entirety. One
commenter stated that any count based
on sampling cannot be ‘‘accurate and
unduplicated.’’ The other commenter
stated that accurate and unduplicated
counts should not require extra
certification. Discussion: It is critical that data
reported by States be accurate. One way
to ensure accuracy of that data is to
require lead agency officials to submit a certification attesting to the data’s
accuracy, as is required by § 303.723.
Concerning the accuracy of data
collected through sampling, when a
State uses sampling as a methodology to
obtain its child count data, the State
must first, in accordance with OMB-
approved information collection
requirements, have its sampling plan
approved by the Department. Prior to
receiving approval of a sampling plan,
the State must demonstrate that its
proposed sampling plan will result in
the collection of valid, reliable, and
accurate data. Currently no State has
elected to use sampling when collecting
the data required under section 618 of
the Act and § 303.721. For these
reasons, we decline to delete § 303.723
as requested by the commenters.
Changes: None.
Annual Report of Children Served—
Other Responsibilities of the Lead
Agency (§ 303.724) Comment: One commenter expressed
support for § 303.724, citing the
importance of having States establish
procedures to verify the accuracy of the
data they collect and report. One
commenter recommended that this
section be amended to be consistent
with section 618(b)(2) of the Act, which
provides that the Secretary may permit
States to obtain the data required under
section 618 of the Act through sampling,
to avoid a duplication of effort in States
that sample to obtain section 618 data.
Several commenters suggested that
complying with the requirements in
§ 303.724 would place a significant
burden on States and their data
collection contractors. One commenter
stated that some States use electronic
systems to collect and track part C data
and that these systems do not
necessarily rely on EIS providers to
submit child counts to the lead agency,
and thus, an EIS provider could not be
expected to certify child count data. The
commenter recommended that EIS
provider certification only be required
when applicable to a State’s procedures
for reporting unduplicated and accurate
child counts. Discussion: Collection of accurate,
unduplicated data begins at the EIS
provider level. Therefore, requiring the
lead agency to establish procedures that
must be implemented by EIS providers,
including certifications about the
accuracy of the data and the dates by
which EIS providers must report that
data to the lead agency, is reasonable
and necessary. The Department’s
position is that § 303.724 is consistent
with the requirement in section 618 of
the Act that allows States to use
sampling when collecting section 618
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data because, pursuant to the OMB-
approved information collection forms
for section 618 State-reported data,
States are required to ensure collection
of accurate data when they use sampling
and have a plan approved by the
Department prior to collecting data
through sampling.
We agree with commenters that in
some States with electronic systems for
collecting and maintaining data, the
State lead agency does not use EIS
providers to collect State child count
data. However, in those States where
EIS providers still play a key role in
collecting State child count data, it is
appropriate for each EIS provider to
certify that the data it reports to the lead
agency are unduplicated and accurate.
Therefore, we have revised § 303.724 to
only require that, as one of the
commenters suggested, the EIS provider
certify the accuracy and nonduplication
of data that the EIS provider is required
to collect and report to the lead agency. Changes: We have added to the lead-
in to § 303.724 the following language
‘‘conduct its own child count or use EIS
providers to complete its child count. If
the lead agency uses EIS providers to
complete its child count, then the lead
agency must:’’
Allocation of Funds
Payments to Indians (§ 303.731)
Comment: One commenter requested
that the Department clarify how the 1.25
percent amount in § 303.731, regarding
part C funds provided by the
Department to the Secretary of the
Interior, is calculated or from where this
percent is derived. The commenter
suggested that the funding for tribes
should be determined by the same
funding formula that is used for States. A few commenters suggested revising
this section to require tribes and States
to continue to collaborate and
coordinate services and also to describe
the role of the Secretary of the Interior
related to the funding of all tribes that
wish to participate as partners in the
part C program. The commenters further
recommended adding a non-supplanting
clause to this section. One commenter
recommended that the title of this
section be revised to read: ‘‘Payments to
Indian Tribes, Tribal Organizations, or
Consortia’’ because the current heading
is misleading and may be offensive to
some. Discussion: Section 303.731(a)
provides that the Secretary will make
payments to the Secretary of the Interior
in the amount of 1.25 percent of the
aggregate amount available to all States
under part C of the Act so that the
Secretary of the Interior can distribute funds to tribes, tribal organizations, and
consortia to coordinate assistance in
providing early intervention services by
States to infants and toddlers with
disabilities and their families on
reservations served by elementary and
secondary schools operated or funded
by the Secretary of the Interior. The 1.25
percent payment by the Department of
Education to the Secretary of the
Interior is required by section 643(b)(1)
of the Act, which provides that this
percentage be taken from the aggregate
amount of part C funds available to all
States.
Section 643(b)(1) of the Act and
§ 303.731(a)(1) clearly state that funds
provided under this section are to be
used for the coordination of assistance
in the provision of early intervention
services by States to infants and
toddlers with disabilities and their
families on reservations served by
elementary schools and secondary
schools for Indian children operated or
funded by the Department of the
Interior. Under section 634(1), the lead
agency is responsible for ensuring that
early intervention services are available
to all infants and toddlers with
disabilities and their families, including
Indian infants and toddlers residing on
a reservation geographically located in
the State. Under section 643(b)(4),
Indian tribes, tribal organizations, and
consortia that receive funds from the
Secretary of the Interior must coordinate
with the State, through the lead agency
responsible for providing early
intervention services under part C of the
Act in that State. This coordination is to
ensure that eligible Indian infants and
toddlers with disabilities under the age
of three in the State are identified,
evaluated, and provided early
intervention services. Including a
requirement for additional coordination
may be unnecessarily restrictive as
States, through their lead agencies, and
Indian tribes, tribal organizations, and
consortia currently use a variety of
mechanisms through their child find
efforts, interagency agreements, and
other methods to meet their respective
responsibilities under part C of the Act. It is not appropriate to add a
nonsupplanting clause to this section
because there is no statutory provision
that requires Indian tribes, tribal
organizations, and consortia to meet a
nonsupplanting requirement. Rather, it
is the State, under section 637(b)(5)(B)
of the Act that must ensure that Federal
funds made available under section 643
of the Act will be used to supplement
not supplant the levels of State and
local funds expended for infants and
toddlers with disabilities and their
families. The U.S. Department of Interior
performs two roles under section 643 of
the Act. First, section 643(b) of the Act
requires the Secretary of the Interior to
distribute the entirety of part C funds
received from the Secretary of
Education to tribes, tribal organizations,
or consortia of those entities for the
coordination of assistance and provision
of early intervention services by States
to infants and toddlers with disabilities
and their families on reservations served
by elementary and secondary schools
for Indian children operated or funded
by the Secretary of the Interior. Second,
the Secretary of the Interior, in
accordance with section 643(b)(5) of the
Act, must submit to the Secretary of
Education on a biennial basis a report
that includes a summary of the
information that tribes, tribal
organizations, or consortia that receive
part C funds must submit to the
Secretary of the Interior under this
section. Finally, in order to avoid confusion
and to ensure consistency between the
language in the Act and the language in
the regulations, we have maintained the
heading of this regulatory section to be
the same as the corresponding section in
the Act (the heading ‘‘Payments to
Indians’’ is taken directly from the Act). Changes: None.
Comment: None.
Discussion: To be consistent with
section 643(b)(1) of the Act, we have
deleted the words ‘‘after the Secretary
determines the amount of payments to
be made to the jurisdictions under
§ 303.730(a)’’ from § 303.731(a)(3). Changes: We have deleted the words
‘‘after the Secretary determines the
amount of payments to be made to the
jurisdictions under § 303.730(a)’’ from
§ 303.731(a)(3).
State Allotments (§ 303.732)
Comment: One commenter stated that
the Federal part C funding formula is
not sound and should be modified.
Several commenters recommended
revising § 303.732, regarding State
allotments of funds available under part
C of the Act, to give States at least 120
days notice of their actual allocation for
the next fiscal year. One commenter
recommended defining the phrase
‘‘ratably reduce’’ as used in paragraph
(c) of this section. Another commenter
requested that the Department define
the phrase ‘‘most recent satisfactory
data’’ as used in paragraph (d)(2) of this
section. Discussion: Section 643 of the Act sets
forth the statutory funding formula for
distributing part C funds to States and
the formula in § 303.732 is taken
directly from section 643(c) of the Act.
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This formula requires data on the
number of children under the age of
three in each State. The phrase ‘‘ratably
reduce’’ in section 643(c)(3) of the Act,
and reflected in § 303.732(c)(1), has the
plain meaning that any reduction in the
appropriation for part C of the Act will
be proportionately reflected in the
allotment for each State. Further
clarification is not necessary.
Additionally, it is not necessary to
define ‘‘most recent satisfactory data’’
because this phrase also has a plain
meaning—that is, it refers to the most
recent population data on the number of
infants and toddlers in States that are
available to the Department at the time
the Department calculates State
allocations under part C of the Act. For
the purpose of these allocations, the
Department uses the most recent data
provided by the United States Bureau of
the Census (U.S. Census Bureau) as the
‘‘most recent satisfactory data.’’ It is the Department’s position that the
regulations should not require the
Secretary to inform States of their
allocations 120 days prior to making the
funds available to the States because the
Department believes that the final
allocations should be based on the most
recent U.S. Census Bureau data
available at the time the Department
issues part C grants, and that data could,
in some years, result in changes in the
estimated allocations within 120 days of
making awards. Changes: None.
Comment: None.
Discussion: To be consistent with
section 643(c)(1) of the Act, we have
added the words ‘‘and any amount to be
reserved for State incentive grants under
§ 303.734’’ to § 303.732(d)(1). Changes: We have added ‘‘and any
amount to be reserved for State
incentive grants under § 303.734’’ to
§ 303.732(d)(1).
Reservation for State Incentive Grants
(§ 303.734)
Comment: A few commenters
supported § 303.734(a), which requires
the Secretary to reserve 15 percent of
the appropriated amount exceeding
$460,000,000 to make available State
incentive grants to States that
implement the option to continue to
provide early intervention services to
children age three and older. However,
many commenters objected to the set-
aside for States that are carrying out a
policy under section 635(c) of the Act
stating that the overall funding levels for
the part C program are inadequate to
serve the current population of children
ages birth to age three, let alone the
population of children age three and
older. Another commenter expressed concern that this set-aside provision
takes away funds from States that do not
adopt a policy under section 635(a) of
the Act. Other commenters requested
that § 303.734(a) not be implemented
until the part C program is fully funded.
Discussion: Consistent with section
643 of the Act and under the provisions
in § 303.734, the Secretary is required,
in any fiscal year that the appropriation
exceeds $460,000,000, to reserve 15
percent of the appropriated amount
exceeding $460,000,000 to make
available State incentive grants (SIG) to
States that choose the option to make
services available to children ages three
and older under § 303.211. We do not
agree that the provisions in § 303.734
take funds away from States that do not
adopt a policy under section 635(a) of
the Act and § 303.211. Any State has the
option to make IDEA part C services
available to eligible children with
disabilities ages three and older under
§ 303.211. States have the option under
§ 303.211 to make IDEA part C services
available to eligible children with
disabilities beyond age three regardless
of whether funds are available and
granted under section 643(e) of the Act
and § 303.734. However, the State
incentive grant funds available and
granted undersection 643(e) of the Act
and § 303.734 must be used to facilitate
the implementation of the provisions in
§ 303.211. Changes: None.
Comment: One commenter
recommended that § 303.734(a) be
revised to clarify that a State is eligible
to receive part C funds under this
section even if the State elects to make
part C services available only to a subset
of children from the age of three to
when the child enters, or is eligible
under State law to enter, kindergarten or
elementary school in the State, instead
of children throughout the entire age
range. Another commenter
recommended defining the method the
Department will use to distribute funds
under § 303.734(a). Discussion: We agree that § 303.734(a)
should clarify that a State that elects to
make part C services available to a
subset of children specified in
§ 303.211(a)(2) is eligible for any part C
funds that are available under section
643(e) of the Act, and we have made
this change. With regard to clarifying
the method of distributing funds under
this section, section 643(e) of the Act
provides that for any fiscal year for
which the amount appropriated under
section 644 of the Act exceeds
$460,000,000, the Secretary shall
reserve 15 percent of such appropriated
amount to provide grants to States that
elect, under section 635(c) of the Act, to serve children beyond age three. In FY
2009, the appropriation exceeded
$460,000,000 due to the enactment of
ARRA and the Department reserved
funding for SIG grants under section
643(c) of the Act. The Department
received applications from, and made
SIG grants to, two States that submitted
policies under section 635(c) of the Act
to serve children beyond age three and
four. No States applied to implement
section 635(c) of the Act in FY 2005
through FY 2008 or FY 2010, which the
Department believes can be explained
by the lack of funding in those years for
the SIG grants.
Changes: We have added language to
§ 303.734(a) to clarify that a State that
makes part C services available
according to a subset of children
specified in § 303.211(a)(2) would be
eligible for any funds available pursuant
to section 643(e) of the Act.
Executive Order 12866
Regulatory Impact Analysis
Under Executive Order 12866, we
have assessed the potential costs and
benefits of this regulatory action. The
potential costs associated with these
final regulations are those resulting from
statutory requirements and those we
have determined to be necessary for
administering this program effectively
and efficiently. The Department has also reviewed
these regulations pursuant to Executive
Order 13563, published on January 21,
2011 (76 FR 3821). Executive Order
13563 is supplemental to and explicitly
reaffirms the principles, structures, and
definitions governing regulatory review
established in Executive Order 12866.
To the extent permitted by law, agencies
are required by Executive Order 13563
to: (1) Propose or adopt regulations only
upon a reasoned determination that
their benefits justify their costs
(recognizing that some benefits and
costs are difficult to quantify); (2) tailor
their regulations to impose the least
burden on society, consistent with
obtaining regulatory objectives, taking
into account, among other things, and to
the extent practicable, the costs of
cumulative regulations; (3) select, in
choosing among alternative regulatory
approaches, those approaches that
maximize net benefits (including
potential economic, environmental,
public health and safety, and other
advantages; distributive impacts; and
equity); (4) the extent feasible, specify
performance objectives, rather than
specifying the behavior or manner of
compliance that regulated entities must
adopt; and (5) identify and assess
available alternatives to direct
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regulation, including providing
economic incentives to encourage the
desired behavior, such as user fees or
marketable permits, or providing
information upon which choices can be
made by the public.
We emphasize as well that Executive
Order 13563 requires agencies ‘‘to use
the best available techniques to quantify
anticipated present and future benefits
and costs as accurately as possible.’’ In
its February 2, 2011, memorandum (M–
11–10) on Executive Order 13563,
improving regulation and regulatory
review, the Office of Information and
Regulatory Affairs has emphasized that
such techniques may include
‘‘identifying changing future
compliance costs that might result from
technological innovation or anticipated
behavioral changes.’’ We are issuing these regulations only
upon a reasoned determination that
their benefits justify their costs and we
selected, in choosing among alternative
regulatory approaches, those approaches
that maximize net benefits. Based on the
analysis below, the Department believes
that these final regulations are
consistent with the principles in
Executive Order 13563. We also have determined that this
regulatory action would not unduly
interfere with State, local, and tribal
governments in the exercise of their
governmental functions.
Potential Costs and Benefits
This analysis does not attempt to
cover every change in the regulations
implementing part C of the Act
governing the Early Intervention
Program for Infants and Toddlers with
Disabilities. We have included an
analysis of the costs and benefits of the
most significant changes. In conducting
this analysis, the Department examined
the extent to which changes made by
these regulations add to or reduce the
costs for State lead agencies and others,
as compared to the costs of
implementing the part C program under
the previously existing regulations.
Based on the following analysis, the
Secretary has concluded that the
changes reflected in the final regulations
will not impose significant costs on the
States.
Section 303.211—State Option To Make
Part C Services Available to Children
Ages Three and Older
Section 303.211 incorporates the
provisions of section 635(c) of the Act,
which allow States to continue to serve
children with disabilities ages three
through five under part C of the Act if
those children previously received
services under part C of the Act and are eligible for services under section 619 of
part B of the Act. Offering services
under part C of the Act is a State option.
In addition, § 303.211(a)(2) clarifies that
a State may choose to serve a subset of
this age range.
In the NPRM, we requested comments
from the public on initial costs related
to establishing or enhancing the
infrastructure of the part C lead agencies
necessary to serve children ages three
through five; differences in the costs of
providing the services required by the
Act to children with disabilities ages
three through five years old under part
C of the Act versus part B of the Act;
the benefits to parents and children of
receiving continued services under part
C of the Act rather than under part B of
the Act; the extent to which States
expect families to choose continuation
of part C services beyond age two; the
extent to which States may choose to
exercise the option of serving children
with disabilities ages three through five
years old under part C of the Act; and
possible sources of funding for
providing part C services to these
children. However, we did not receive
comments on possible costs related to
these changes. If a State elects to exercise the option
to serve three through five year olds
under part C of the Act, the lead agency
is responsible for the costs of providing
the direct part C services to children
whose families elect to continue
services under part C. In addition, the
State’s part C lead agency could incur
some transition costs in implementing
this option. For example, if the part C
lead agency is not the SEA, it would
need to develop the capacity to serve
older children. The intensity and type of
services and settings needed for three
through five year olds would be
different from those that are appropriate
for children ages birth through two, and
the program would need to include an
educational component, which is not
required for preschool children being
served under part B of the Act. The part
C lead agency may also have to establish
relationships with different providers
or, at the very least, amend agreements
or contracts with existing providers. On
the other hand, part C of the Act
provides for establishment of a system
of payments, which might reduce the
cost to the State of providing services to
children ages three through five served
under part C of the Act. The SEA is the lead agency in 14 of
the 56 State agencies. In these States,
extending the age range of children
served by the part C program would
primarily involve a shifting of costs
among programs within the same
agency. The State may incur some transition costs related to training and
administration. However, these costs
would not be significant.
If a State elects to provide services
under part C to children ages three
through five, and the lead agency is not
the SEA, the SEA and LEAs in that State
would experience savings because they
would be responsible for providing
services under part B of the Act to fewer
children ages three through five, but this
is not likely to result in overall savings
for the State because the lead agency
would incur higher costs, and the SEA
and LEAs would still be required to
maintain their Section 619 preschool
programs to serve children with
disabilities ages three through five years
old who are not served under this
option because parents have the right to
choose between part C or part B
services. If a State elects to make part C
services available to children ages three
and older, § 303.209(f)(2) requires the
State to make the annual notice required
under § 303.211(b)(1) available to
parents at the transition conference
when the parent is presented with the
initial option for the child to receive
services under § 303.211 or under
section 619 of the Act. Although this
requirement adds to the cost of
implementing the State option, we
estimate that the costs would be
insignificant, even if all States elected to
exercise the option and proposed to
make services available to children until
their 5th birthday. Based on the experience of the two
States that have already opted to make
part C services available to children
three and older, we estimate that the
annual notice would be approximately
five pages long. We further estimate that
it would cost approximately $.25 to
photocopy a single notice and that
approximately 220,000 notices would be
needed, based on the number of three
and four year old children we would
expect to be eligible to continue to
receive services under part C, for an
annual cost of $55,000. This estimate
would represent a lower-bound insofar
as it assumes the notice would be
limited to addressing the specific
requirements of the Act and these
regulations. In order to ensure that all
families of eligible children are aware of
the potential benefits of continuing to
receive services under the part C
programs, States may opt to develop
brochures and other materials to
publicize this option. For example, the
two States that received State incentive
grants in FY 2009 each requested
approximately $30,000 to support the
development and printing of brochures
about the part C option. If all States
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2U.S. Department of Labor, Bureau of Labor
Statistics, Table 4, State and local government, by
occupational and industry group, last modified
September 8, 2010, http://www.bls.gov/
news.release/ecec.t04.htm.
opted to extend part C services to
eligible children beyond their third
birthday and developed and printed
similar materials, we estimate that
States could spend as much as $1.6
million to provide information on the
part C option to eligible children.
Sections 303.301 Through 303.320—
Public Awareness, Comprehensive
Child Find System, Referrals, and
Screening
Sections 303.301 and 303.302
combine the child find and public
awareness requirements from section
635(a)(5) and (a)(6) of the Act and reflect
the Act’s increased emphasis on specific
subpopulations of infants and toddlers
with disabilities who may potentially be
eligible for and need early intervention
services under part C of the Act. Section
303.302 requires States, consistent with
the Act, to identify, locate, and evaluate
all eligible infants and toddlers with
disabilities, including children who are
covered by CAPTA, homeless, in foster
care, or wards of the State. Section
303.303 requires the State to have
referral procedures to be used by
specified primary referral sources and
requires such procedures to provide for
the referral of certain children covered
by CAPTA. Section 303.303(b) clarifies
that referral of children covered by
CAPTA is limited to children under the
age of three who are the subject of a
substantiated case of child abuse or
neglect or who are identified as directly
affected by illegal substance abuse or
withdrawal symptoms resulting from
prenatal drug exposure. This change is
consistent with the CAPTA provision in
43 U.S.C. 5106a(b)(2)(A)(xxi) that
became effective in June 2003, which
requires States receiving CAPTA funds
to adopt policies providing for children
under the age of three who are involved
in a substantiated case of child abuse or
neglect to be referred to the part C
program. Section 303.301 also provides
that, under a State’s public awareness
program, the lead agency must prepare
information on the availability of early
intervention services and disseminate
such information to all primary referral
sources so that these sources may give
the information to parents of infants and
toddlers, especially parents with
premature infants or infants with other
physical risk factors associated with
learning or developmental
complications. Since States have been required under
the Act to conduct child find activities
to identify all infants and toddlers with
disabilities since the part C program
began in 1989, and the CAPTA
requirements have been in place since
June 2003, we are not estimating any increase in costs as a result of these
changes. Part C lead agencies should
already have the infrastructure needed
to meet all of the IDEA child find
requirements, including those
requirements relating to children
covered by CAPTA and those who are
homeless, in foster care, or wards of the
State.
In addition, § 303.320 allows the lead
agency to adopt procedures for
screening to determine whether a child
is suspected of having a disability. The
use of screening as a vehicle to identify
children potentially eligible for part C
services may reduce the number of
evaluations and assessments that would
otherwise need to be conducted and,
thus, reduce potential evaluation and
assessment costs for the State. As
discussed previously in the Analysis of
Comments and Changes, some
commenters suggested that
§ 303.320(a)(3), which allows a parent to
request an evaluation even after the lead
agency determines—using its screening
procedures—that the child is not
suspected of having a disability, would
diminish the cost-effectiveness of
screening. However, we believe that
parents are in a unique position to
observe their child’s development and
may notice things which suggest a
developmental delay or disability that
could be missed by a screening. For this
reason, it is the Department’s position
that this parental right to request an
evaluation—along with other
regulations in this part—provide for a
rigorous child find system, which
ensures that infants and toddlers with
disabilities will receive the early
intervention services they need. This is
cost-effective because providing these
services may reduce the need for special
education and related services for these
children when they reach school age.
Section 303.344(e)—Content of an IFSP
The current regulations in
§ 303.344(e) require the IFSP to include,
to the extent appropriate, those medical
and other services that the child needs,
but are not required by part C of the Act,
and the funding sources to be used in
paying for those services or the steps
that will be taken to secure those
services through public or private
sources. Section 303.344(e) of the final
regulations retains the requirement for
the IFSP Team to identify in the IFSP,
to the extent appropriate, medical and
other services that the child or family
needs or is receiving, but that are not
required by part C of the Act, and, if
those services are not currently being
provided, the steps that will be taken to
assist the family in securing those
services through public or private sources. However, the IFSP Teams are
no longer required to identify funding
sources for these services.
Eliminating the requirement that
IFSPs identify the funding sources for
services not required by part C of the
Act will reduce the burden on service
coordinators and will save IFSP Teams
time during meetings and time
preparing the IFSP. The requirement to
identify funding for other services is
overly burdensome, given that there
may be many other services that infants
and toddlers with disabilities and their
families receive (e.g., foster care,
services through individualized safe
plans of care, and medical and other
services), and IFSP Teams may have
limited knowledge about funding for
these services. The service coordinator typically
would be responsible for obtaining this
information. While we do not have any
data on the number of hours service
coordinators spend on this activity, we
do know that many children served
under part C of the Act have significant
health care needs, and it could take
several hours or more to identify
funding for medical services needed by
these children. For purposes of this
analysis, we assume that service
coordinators spend, on average, a
minimum of two hours per year per
child identifying funding for services
not required by IDEA and describing
this information in the IFSP. Based on
employee compensation costs for health
care and social assistance personnel
calculated by the Bureau of Labor
Statistics (BLS),
2we estimate average
compensation for service coordinators
to be approximately $34.99 per hour.
Pursuant to section 637(b)(4) of the Act,
each State submits an annual count to
the Department of the number of
children with disabilities ages birth
through two served in the State. An
analysis of trends in the annual count
and in census data for this age range
indicates that the States will serve
approximately 352,000 children under
part C of the Act in fiscal year 2011.
Based on these estimates, we estimate
that savings from this change could be
as much as $24.6 million. Since the BLS health care and social
assistance personnel category is broad
and may overestimate salaries for
service coordinators, we also examined
available data on wages and salaries for
early intervention specialists employed
by non-profit organizations, school
districts, private companies, State and
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3Estimate based on an analysis of early
intervention specialist salaries conducted by the
PayScale Corporation and updated on November
12, 2010 (http://www.payscale.com/research/US/
Job=Early_Intervention_Specialist/Salary).
local governments, and colleges and
universities to derive a lower-bound
estimate for these savings based on an
hourly wage of $14.60.
3Using the BLS
estimate of fringe benefit costs for health
care and social assistance personnel of
$12.67 per hour, the lower-bound
estimate of the savings from this change
would be $19.2 million per year.
Section 303.409(c)—Fees for Records
Section 303.409(c) requires the lead
agency to provide parents with a copy
of each evaluation, assessment, and
IFSP pertaining to their child at no cost
to the parents as soon as possible after
the IFSP meeting. We do not anticipate
that requiring States to provide a copy
of evaluations, assessments, and IFSPs
to parents, from the child’s early
intervention record, would result in a
significant cost burden to States.
Assuming that these documents, in
total, would average no more than 100
pages, the cost of providing a copy to
parents for the estimated 352,000
children served under the part C
program in 2011 would be $3.8 million,
at a cost of $0.05 per photocopied page
and no more than 10 minutes of a
service coordinator’s time using the
previous compensation estimate of
$34.99 per hour. As a standard practice,
most States already provide these
documents at no cost to parents, so the
effective cost of this change would be
minimal.
Section 303.436(b)—Parental Rights in
Due Process Hearing Proceedings
Section 303.436(b)(4) and (b)(5) has
been changed to specify that a parent
involved in a due process hearing has
the right to receive a written or
electronic verbatim transcription of the
hearing and a copy of the written
findings of fact and decisions at no cost
to the parent. The cost impact of this
requirement is likely to be minimal
because there are very few due process
hearings under the part C program.
According to APR data submitted by
States for FY 2008 (2008–09 reporting
period), only 18 due process hearings
were held during this period. If a typical
due process hearing lasts no more than
16 hours and an hour of testimony
results in roughly 40 pages of printed
text, the cost to a State of providing an
additional copy of the hearing transcript
at $0.50 per page would be $320.00.
Assuming that there could be as many
as 20 due process hearings, the annual cost of this requirement would be no
more than $6,400.
Section 303.520(a)—Policies Related to
the Use of Public Benefits or Insurance
To Pay for Part C Services
This section addresses the use of
public benefits or insurance to pay for
part C services, which is not addressed
in the current regulations. Section
303.520(a) establishes three new
requirements that are designed to
provide important protections for
parents of infants and toddlers with
disabilities balanced against the need
for States to have access to public
benefits and public insurance to finance
part C services while implementing the
system of payments, coordination of
funding sources, and payor of last resort
requirements under sections 632(4),
635(a)(10)(B) and 640 of the Act. Section 303.520(a)(2)(i) prohibits a
State from requiring a parent to enroll
in a public benefits or insurance
program as a condition of receiving part
C services. Under this section, a State
may seek to enroll a parent in a public
benefits or insurance program, but a
parent can decline to enroll without
affecting any right to receive part C
services. The purpose of this provision
is to protect the parent’s right to
confidentiality of personally identifiable
information (where the lead agency is
the same State agency that administers
the public benefits or insurance
program, such as Medicaid) and to
protect the parents from incurring costs
involuntarily. We expect this
clarification to affect a limited number
of States as the majority of States with
systems of payments on file with the
Department in FFY 2009 that address
the use of public benefits or insurance
to pay for part C services do not require
families to enroll in those programs in
order to receive part C services.
Moreover, we believe that most parents
will agree to enroll their infants and
toddlers in programs like Medicaid
voluntarily since it is generally to the
family’s advantage to obtain health
insurance for all family members to pay
for general medical care, including well
baby visits and routine immunizations. However, the few States that currently
require parents to enroll in public
benefits or insurance programs in order
to receive part C services could
potentially lose revenue if eligible
parents decline to enroll in these
programs. However, this potential loss
of public benefits or insurance funds is
outweighed by the benefits of protecting
the privacy and autonomy of parents
(including minimizing any potential
negative financial impact that use of
public benefits or insurance may have on parents). Moreover, the loss of public
benefits or insurance does not increase
the cost of early intervention services; it
shifts the cost of those services to
another revenue source.
Section 303.520(a)(2)(ii) requires the
State to obtain consent to use a child’s
or parent’s public benefits or insurance
to pay for part C services if such use
would have a cost impact on the family,
specifically if that use would decrease
available lifetime coverage or any other
insured benefit of the child or parent,
result in the parents paying for services
that would otherwise be covered by the
program, result in any increase in
premiums or discontinuation of benefits
or insurance, or risk loss of eligibility
for the child or parents for home and
community-based waivers based on
aggregate health-related expenditures. We would expect that there would be
few instances in which parental consent
would be required under this provision
because Medicaid is the primary source
of public insurance for part C services
and Medicaid generally does not have
limitations on lifetime coverage, pose
any risk of increased premiums, or
present any risk of loss of eligibility or
discontinuation of benefits or insurance
that would trigger the consent
requirement. However, in those
instances where there was a risk of
increased premiums or out-of-pocket
costs, States may create incentives for
parents to provide consent by ensuring
that the State’s system of payments
ensures that no out-of-pocket costs
(including premium costs) are incurred
by those parents eligible for Medicaid
(currently 133% of the Federal poverty
level). Finally, § 303.520(a)(1) permits the
State to access a child’s or parent’s
public benefits or insurance if the State
provides written notification to the
child’s parents and so long as the parent
would not incur the specified costs
identified above as a result of the use of
those benefits, unless the parent had
provided consent to use of such benefits
for those services. Section 303.520(a)(3) specifies that
this written notification must include:
(1) A statement that parental consent
must be obtained under § 303.414
(where applicable) before the public
agency discloses, for billing purposes,
their child’s personally identifiable
information to the agency responsible
for the administration of the State’s
public benefits or insurance program;
(2) a statement of the no cost provisions
in new § 303.520(a)(2) and that if the
parent does not provide the consent
under § 303.520(a)(2), the State lead
agency must still make available those
part C services in the IFSP for which the
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4http://www.bls.gov/ncs/ocs/sp/nctb1479.pdf. 5Unpublished analysis of NEILS data by SRI,
International, for the U.S. Department of Education.
Additional information on the NEILS, including
access to a public use dataset, is available on the
study Web site (http://www.sri.com/neils ).
6Calculated using the median hourly wage for
secretaries and administrative assistants employed
full-time by State or local governments of $17.75
(http://www.bls.gov/ncs/ocs/sp/nctb1479.pdf ) with
benefit costs of 35 percent.
7The 2002 Part C APR was the last APR in which
State lead agencies were required to report data on
funding sources.
parent has provided consent; (3) a
statement that the parents have the right
under § 303.414, if that provision
applies, to withdraw their consent to
disclosure of personally identifiable
information to the State public agency
responsible for the administration of the
State’s public benefits or insurance
program at any time; and (4) a statement
of the general categories of costs that the
parent could incur as a result of
participating in a public benefits or
insurance program (such as co-
payments or deductibles, or the required
use of private insurance as the primary
insurance). Although the specific format and
content may vary by State, we estimate
that it would take no more than 10
hours per State to draft a written notice
that complied with these requirements
and that the notice would not exceed 4
pages in length. According to the National
Compensation Survey from the Bureau
of Labor Statistics, the median hourly
wage for lawyers employed full-time in
State or local government is $38.46.
4
With benefit costs of approximately 35
percent, we estimate that the cost per
State of drafting and translating this
notice into other languages, if
applicable, would be no more than
$520, for a national cost of $29,120. We also expect that providing this
notification to parents will not have a
significant cost impact because the
timing of the written notification is left
to the discretion of the State lead
agency. In many instances, States would
have an opportunity to provide this
notification, either by mail or in person,
in conjunction with the prior written
notice already required under § 303.421
or other required documentation (such
as a copy of the IFSP) or at the IFSP
meeting or periodic review and would
incur only the additional cost of
photocopying the notification. The National Early Intervention
Longitudinal Study (NEILS) collected
data on a representative sample of 3,338
children who entered the part C
program for the first time between
September 1997 and November 1998
and at various points until the children
entered Kindergarten. These data
indicate that 44 percent of the families
participating in the part C program
participate in a government-assisted
health insurance or public benefits
program such as Medicaid or the
Children’s Health Insurance Program
(CHIP).
5Although we do not have the benefit of more recent data, we assume
that the percentage of part C families
enrolled in public benefits or insurance
programs has remained fairly constant
and that approximately 155,000 of the
353,028 infants and toddlers served
under part C in the fall of 2009 are in
families that also participate in public
benefits or insurance programs. For the
reasons already described, we assume
for this analysis that virtually all of the
families participating in a public
benefits or insurance program would be
covered by the notification requirements
and not the consent requirements that
apply if use of the parent’s insurance is
expected to result in certain specified
costs.
We estimate that the cost of producing
this notification for the estimated
155,000 infants and toddlers who
participate in both the part C program
and a public benefits or insurance
program would be at most $341,000 per
year for all States, if each 4-page notice
cost 20 cents to photocopy and required
5 minutes of administrative personnel
time.
6
In some instances, States would be
unable to provide this written
notification at the initial or other IFSP
meeting in person during a service visit,
or in conjunction with other mailings,
and may need to provide written
notification by mail separately.
Assuming that sending written
notification by mail is required for one
quarter of the eligible infants and
toddlers and would require 44 cents in
postage and 10 cents for an envelope,
the additional cost of mailing these
notifications would be an estimated
$20,925 annually.
We believe that the potential cost to
States of implementing this required
notification is very minor and would be
offset by the benefits of ensuring that
parents are aware that their child’s
personally identifiable information will
be disclosed to the State agency
responsible for the State’s public
benefits or insurance program, that this
disclosure and billing cannot result in
specified costs to them, that they have
the right under § 303.414 (where
applicable) to withdraw consent for this
disclosure at any time, and that refusal
to provide consent or withdrawal of this
consent will not jeopardize their child’s
access to services under the part C
program. Section 303.520(b)—Policies Related to
Use of Private Insurance To Pay for
Part C Services
Under § 303.520(b), a State may not
access a parent’s private insurance to
pay for part C services unless the parent
provides consent to do so, except in
States that have enacted legislation that
provides certain no-cost protections.
Overall, we do not believe the final
regulations will have a significant effect
on States because private insurance
funds represent a more limited
proportion of States’ part C budgets than
funds from public benefits or insurance
programs. Twenty-six States reported in
either their FFY 2001 or 2002 part C
APRs that they used funds from private
insurance and/or family fees to pay for
part C services.
7For 21 of these 26
jurisdictions, the average percentage of
the State’s overall part C budget that
represented funds from private
insurance and/or family fees was 4.9
percent. Notably, those few States for
which private insurance represents a
relatively larger share of their budget
(i.e., more than 10 percent) are States
that would not be subject to the general
consent requirement because they have
enacted State statutes providing the
requisite protections. That is, as
required by § 303.520(b), the State
legislation ensures that the use of
private health insurance to pay for part
C services would not: (1) Count towards
or result in a loss of benefits due to the
annual or lifetime health insurance
coverage caps for the infant or toddler
with a disability or family,
(2) negatively affect the availability of
health insurance for the child and
family, (3) result in the discontinuation
of health insurance coverage, or (4) be
the basis for increasing the private
insurance premiums for the child or
family. In States without these statutes,
it is unlikely that these States are
accessing private insurance to any
significant extent without parental
consent. Part C services must be provided free
of charge unless the State has
established a system of payments. States
wishing to use a parent’s or child’s
private insurance funds to pay for part
C services should have already included
this option in a system of payments,
especially in cases where the use of
private insurance involves co-payments
and deductibles. Even in cases where
the State might be willing to cover the
up-front costs (e.g., the co-payment) in
order to obtain parental consent to use
private insurance, the State could not
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have done so without access to
personally identifiable information that
could not be obtained without consent.
As such, the requirement to obtain
parental consent to use private
insurance is not a change in practice.
Any potential loss of revenue to States
from not being able to access private
insurance because parents will not
provide consent would be offset by the
benefits of protecting the autonomy of
the family and the benefits of ensuring
that they are not unknowingly incurring
costs.
Section 303.521(c)—States With FAPE
Mandates or That Use Part B Funds To
Provide Services to Infants and
Toddlers With Disabilities
This provision incorporates long-
standing policy and requirements under
part B of the Act that, if a State is
required under State law to provide
FAPE for, or uses funds under part B of
the Act to pay for, services for infants
and toddlers with disabilities or a subset
of children with disabilities under the
age of three, the State must ensure that
those services that constitute FAPE are
provided at no cost. For example, if a
State has established a system of
payments under part C of the Act, but
under State law mandates FAPE for a
particular subgroup of children under
the age of three (either by age and/or
disability group, such as individuals
who are blind), the State cannot charge
for any services that are part of FAPE for
that child or family. Because
§ 303.521(c) clarifies current
requirements and practice, this change
is not expected to result in any change
in costs for State agencies, early
intervention service providers, or
families.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995
does not require you to respond to a
collection of information unless it
displays a valid OMB control number.
We display the valid OMB control
numbers assigned to the collections of
information in these final regulations at
the end of each of the affected sections
of the regulations. These final regulations include the
following five information collection
requirements associated with the
following provisions: §§ 303.101,
303.111 through 303.126, 303.200
through 303.227, 303.301, 303.430,
303.431(a)(2)(i), 303.432 through
303.434, 303.440(b), 303.443(c)(3),
303.520(a), 303.701, 303.702, and
303.720 through 303.724. A description of these provisions is
given below with an estimate of the
annual recordkeeping burden. Included in the estimate is the time for reviewing
instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing each collection of
information.
Collection of information: IDEA part C
State Performance Plan (SPP) and
Annual Performance Report (APR),
(Information Collection 1820–0578).
Affected regulation sections for this
information collection are §§ 303.124,
303.701 and 303.702. Each statewide system must include a
system for compiling and timely
reporting accurate data. Each State must
have in place, a performance plan that
evaluates the State’s efforts to
implement the requirements and
purposes of part C of the Act and
describes how the State will improve
implementation. Each State also must
report annually to the public on the
performance of each EIS provider in the
State on the targets in the State’s
performance plan, and the State must
report annually to the Secretary on the
performance of the State under the
State’s performance plan. Annual reporting and recordkeeping
burden for this collection of information
is estimated to be 180 hours annually
for maintaining the SPP and 1800 hours
completing the APR, for each of 56
respondents. The total annual burden to
States for maintaining the SPP is
estimated to be 10,080 hours. Of the
total 180 hours, it is estimated that 100
hours will be spent planning the report,
50 hours will be spent writing the
report, and 30 hours will be spent
typing and compiling the report. Of the
estimated 1800 hours for completing the
APR, it is estimated that 1720 hours will
be spent planning (i.e., setting up data
collection processes, reporting data,
cleaning and analyzing the data, etc.)
the report, 40 hours will be spent
writing the report, and 40 hours will be
spent typing and compiling the report.
The total annual burden to States for
completing the APR is estimated to be
100,800. The Council reviews, provides
comments on, and certifies the lead
agency’s report, and either agrees or
disagrees with the report. The estimated
annual burden for the Council is two
hours to review, certify, and add
comments to each report, as needed. Collection of information: Annual
State Application under part C of the
Individuals with Disabilities Education
Act, as amended. (Information
Collection 1820–0550) Affected
regulation sections for this information
collection are §§ 303.101, 303.111
through 303.126, and 303.200 through
303.227. Under § 303.101, States are
required to submit in the grant application new and/or revised State
policies, procedures, methods,
certifications, and descriptions that are
described in §§ 303.201 through 303.212
of subpart C of these regulations and
assurances for the application
requirements in §§ 303.111 through
303.126 and 303.221 through 303.227.
There are 56 respondents who are
required to submit the part C Annual
State Application if they seek to receive
Federal part C funds. The annual data
burden for this collection is estimated to
average 10 hours per respondent. Thus,
the annual total burden estimate for this
information collection is 560 hours. No
changes are expected to the version of
Information Collection 1820–0550 that
is approved by OMB through December
31, 2010. Collection of information: Report of
Infants and Toddlers Receiving Early
Intervention Services in Accordance
with part C; Report of Program Settings
Where Early Intervention Services are
Provided to Infants and Toddlers with
Disabilities and Their Families in
Accordance with part C of the Act:
(Information Collection 1820–0557)
Affected regulation sections for this
information collection are §§ 303.124
and 303.720 through 303.724. Each lead agency that receives
assistance under part C of the Act must
provide data each year to the Secretary
and the public on infants and toddlers
with disabilities. There are 56
respondents who are required to
provide part C data on infants and
toddlers with disabilities. There are
three Tables found in this collection.
The estimated burden for this collection
is 107 hours per State agency or 5,987
hours total. Collection of Information: Report of
Dispute Resolution Under part C of the
Individuals With Disabilities Education
Act Complaints, Mediations, and Due
Process Hearings (Information
Collection 1820–0678) The affected
regulation section for this information
collection is § 303.430. Under sections
616(a)(3)(B), 618(a)(1)(F), (a)(1)(H), and
(a)(3), 639(a)(1), and 642 of the Act, the
Secretary requires States to report data
on the dispute resolution procedures the
State is required to maintain under
§ 303.430. Each State must report the
number of due process complaints,
number of due process hearings
conducted and the number of
mediations held and the number of
settlement agreements reached through
such mediations. Additionally, if the
State has adopted under § 303.430(d)(2)
the part B due process hearing
procedures, the State must report on the
number of dispute resolution sessions
and the number of settlement
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60244 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
agreements reached through such
resolution sessions. The data collection
form provides instructions and
information for States for submitting
their dispute resolution data.
There are 56 respondents who are
required to submit data regarding the
part C dispute resolution process. The
total burden for all States was calculated
by multiplying the average number of
hours by 56. For lead agencies, the
estimated average burden is 60 hours
per lead agency, representing a total
burden estimate of 3,360 hours. The
required number of hours needed to
produce these data is expected to
decline as systems are expanded to
collect all required data elements,
personnel are trained on reporting these
data, and edits are implemented to
automate data cleaning. Collection of Information: State and
EIS Record Keeping, Notification,
Reporting, and Third Party Disclosure
Requirements under part C (Information
Collection 1820–0682). Affected
regulation sections for this information
collection are §§ 303.430(c) and (d)(2),
303.431(b)(2)(i), 303.432 through
303.434, 303.440(b), 303.443(c)(3), and
303.520(a). The Act requires State lead
agencies and EIS providers to gather,
maintain, report, and disclose various
information and data, but the Act does
not require this information and data to
be submitted to the Department. Each State lead agency must have on
file a list of mediators and procedures
to ensure the timely resolution of State
complaints. There are 56 State-level
record keepers who must maintain a list
of mediators. It is estimated to take
approximately three hours annually for
record keepers to update and maintain
the lists, representing a total burden of
168 hours. Each of the 56 State lead
agencies process on average three
complaints annually. It takes
approximately 24 hours for a State lead
agency to issue a written decision to a
complaint, representing a total burden
of 4032 hours. If the State lead agency
adopts part B due process hearing
procedures, then the lead agency must
also have on file a list of hearing officers
and must provide parents information
on low-cost legal and other services
under specific circumstances. There are
approximately 45 State due process
complaints annually, and the data
burden is expected to require an average
of 30 minutes per hearing request to
inform parents of the availability of low-
cost legal services, representing a total
burden of 22.5 hours. Approximately 15
States have adopted part B due process
procedures for part C. It is estimated to
take approximately three hours annually
for record keepers to update and maintain the lists, representing a total
burden of 45 hours. Additionally, each
State lead agency must provide a
written notification to parents prior to
accessing a child’s or parent’s public
benefits or insurance. For each State
lead agency, it takes an average of about
10 hours to draft the notice,
representing a total burden of 560 hours.
As discussed in the supporting
statement, other requirements identified
in the NPRM as potential information
collections, were not specific collections
but rather affirmative responsibilities of
lead agencies and EIS providers
regarding fiscal and programmatic
requirements.
The estimated average burden is
86 hours per lead agency. Annual
reporting, notification, and
recordkeeping burden for this collection
of information is estimated to be
approximately 4827.5 hours for 56
respondents (State lead agencies).
Intergovernmental Review
This program is subject to the
requirements of Executive Order 12372
and the regulations in 34 CFR part 79.
The objective of the Executive order is
to foster an intergovernmental
partnership and a strengthened
federalism by relying on processes
developed by State and local
governments for coordination and
review of proposed Federal financial
assistance.
In accordance with this order, we
intend this document to provide early
notification of the Department’s specific
plans and actions for this program.
Assessment of Educational Impact
In the NPRM published in the Federal
Register on May 9, 2007, and in
accordance with section 441 of the
General Education Provisions Act, 20
U.S.C. 1221e–4, we requested comments
on whether the proposed regulations
would require transmission of
information that any other agency or
authority of the United States gathers or
makes available. Based on the response
to the NPRM and on our own review,
we have determined that these final
regulations do not require transmission
of information that any other agency or
authority of the United States gathers or
makes available.
Electronic Access to This Document
You may view this document, as well
as all other Department of Education
document published in the Federal
Register, in text or Adobe Portable
Document Format (PDF) on the Internet
at the following site: http://www.ed.gov/
news/fedregister. To use PDF you must have Adobe
Acrobat Reader, which is available free
at this site. If you have questions about
using PDF, call the U.S. Government
Printing Office (GPO), toll free, at 1–
888–293–6498; or in the Washington,
DC, area at (202) 512–1530.
Note: The official version of this document
is the document published in the Federal
Register. Free Internet access to the official
edition of the Federal Register and the Code
of Federal Regulations is available on GPO
Access at: http://www.gpoaccess.gov/nara/
index.html.
(Catalog of Federal Domestic Assistance
Number 84.181)
List of Subjects in 34 CFR Part 303
Education of individuals with
disabilities, Grant programs—education,
Infants and toddlers, Reporting and
recordkeeping requirements.
Dated: August 31, 2011.
Arne Duncan,
Secretary of Education.
For the reasons discussed in the
preamble, the Secretary amends title 34
of the Code of Federal Regulations by
revising part 303 to read as follows:
PART 303—EARLY INTERVENTION
PROGRAM FOR INFANTS AND
TODDLERS WITH DISABILITIES
Subpart A—General
Purpose and Applicable Regulations
Sec.
303.1 Purpose of the early intervention
program for infants and toddlers with
disabilities.
303.2 Eligible recipients of an award and applicability of this part.
303.3 Applicable regulations.
Definitions Used in This Part
303.4 Act.
303.5 At-risk infant or toddler.
303.6 Child.
303.7 Consent.
303.8 Council.
303.9 Day.
303.10 Developmental delay.
303.11 Early intervention service program.
303.12 Early intervention service provider.
303.13 Early intervention services.
303.14 Elementary school.
303.15 Free appropriate public education.
303.16 Health services.
303.17 Homeless children.
303.18 Include; including.
303.19 Indian; Indian tribe.
303.20 Individualized family service plan.
303.21 Infant or toddler with a disability.
303.22 Lead agency.
303.23 Local educational agency.
303.24 Multidisciplinary.
303.25 Native language.
303.26 Natural environments.
303.27 Parent.
303.28 Parent training and information center.
303.29 Personally identifiable information.
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303.30 Public agency.
303.31 Qualified personnel.
303.32 Scientifically based research.
303.33 Secretary.
303.34 Service coordination services (case
management).
303.35 State.
303.36 State educational agency.
303.37 Ward of the State.
Subpart B—State Eligibility for a Grant and
Requirements for a Statewide System
General Authority and Eligibility
303.100 General authority.
303.101 State eligibility—requirements for a grant under this part.
State Conformity With Part C of the Act and
Abrogation of State Sovereign Immunity
303.102 State conformity with Part C of the Act.
303.103 Abrogation of State sovereign immunity.
Equipment and Construction
303.104 Acquisition of equipment and construction or alteration of facilities.
Positive Efforts To Employ and Advance
Qualified Individuals With Disabilities
303.105 Positive efforts to employ and advance qualified individuals with
disabilities.
Minimum Components of a Statewide
System
303.110 Minimum components of a statewide system.
303.111 State definition of developmental delay.
303.112 Availability of early intervention services.
303.113 Evaluation, assessment, and nondiscriminatory procedures.
303.114 Individualized family service plan (IFSP).
303.115 Comprehensive child find system.
303.116 Public awareness program.
303.117 Central directory.
303.118 Comprehensive system of personnel development (CSPD).
303.119 Personnel standards.
303.120 Lead agency role in supervision, monitoring, funding, interagency
coordination, and other responsibilities.
303.121 Policy for contracting or otherwise arranging for services.
303.122 Reimbursement procedures.
303.123 Procedural safeguards.
303.124 Data collection.
303.125 State interagency coordinating
council.
303.126 Early intervention services in natural environments.
Subpart C—State Application and
Assurances
General
303.200 State application and assurances.
Application Requirements
303.201 Designation of lead agency.
303.202 Certification regarding financial responsibility.
303.203 Statewide system and description of services. 303.204 Application’s definition of at-risk
infants and toddlers and description of
services.
303.205 Description of use of funds.
303.206 Referral policies for specific children.
303.207 Availability of resources.
303.208 Public participation policies and procedures.
303.209 Transition to preschool and other programs.
303.210 Coordination with Head Start and Early Head Start, early education, and
child care programs.
303.211 State option to make services under this part available to children ages three
and older.
303.212 Additional information and assurances.
Assurances
303.220 Assurances satisfactory to the Secretary.
303.221 Expenditure of funds.
303.222 Payor of last resort.
303.223 Control of funds and property.
303.224 Reports and records.
303.225 Prohibition against supplanting; indirect costs.
303.226 Fiscal control.
303.227 Traditionally underserved groups.
Subsequent Applications and Modifications,
Eligibility Determinations, and Standard of
Disapproval
303.228 Subsequent State application and modifications of application.
303.229 Determination by the Secretary that a State is eligible.
303.230 Standard for disapproval of an application.
Department Procedures
303.231 Notice and hearing before determining that a State is not eligible.
303.232 Hearing Official or Panel.
303.233 Hearing procedures.
303.234 Initial decision; final decision.
303.235 Filing requirements.
303.236 Judicial review.
Subpart D—Child Find, Evaluations and
Assessments, and Individualized Family
Service Plans
General
303.300 General.
Pre-Referral Procedures—Public Awareness
Program and Child Find System
303.301 Public awareness program— information for parents.
303.302 Comprehensive child find system.
Referral Procedures
303.303 Referral procedures.
303.304–303.309 [Reserved]
Post-Referral Procedures—Screenings,
Evaluations, and Assessments
303.310
Post-referral timeline (45 days).
303.311–303.319 [Reserved]
303.320 Screening procedures (optional).
303.321 Evaluation of the child and assessment of the child and family.
303.322 Determination that a child is not eligible. Individualized Family Service Plan (IFSP)
303.340 Individualized family service
plan—general.
303.341 [Reserved]
303.342 Procedures for IFSP development, review, and evaluation.
303.343 IFSP Team meeting and periodic review.
303.344 Content of an IFSP.
303.345 Interim IFSPs—provision of services before evaluations and
assessments are completed.
303.346 Responsibility and accountability.
Subpart E—Procedural Safeguards
General
303.400 General responsibility of lead agency for procedural safeguards.
Confidentiality of Personally Identifiable
Information and Early Intervention Records
303.401 Confidentiality and opportunity to examine records.
303.402 Confidentiality.
303.403 Definitions.
303.404 Notice to parents.
303.405 Access rights.
303.406 Record of access.
303.407 Records on more than one child.
303.408 List of types and locations of information.
303.409 Fees for Records.
303.410 Amendment of records at a parent’s request.
303.411 Opportunity for a hearing.
303.412 Result of hearing.
303.413 Hearing procedures.
303.414 Consent prior to disclosure or use.
303.415 Safeguards.
303.416 Destruction of information.
303.417 Enforcement.
Parental Consent and Notice
303.420 Parental consent and ability to decline services.
303.421 Prior written notice and procedural safeguards notice.
Surrogate Parents
303.422 Surrogate parents.
Dispute Resolution Options
303.430 State dispute resolution options.
Mediation
303.431 Mediation.
State Complaint Procedures
303.432 Adoption of State complaint procedures.
303.433 Minimum State complaint procedures.
303.434 Filing a complaint.
States That Choose To Adopt the Part C Due
Process Hearing Procedures Under Section
639 of the Act
303.435 Appointment of an impartial due process hearing officer.
303.436 Parental rights in due process hearing proceedings.
303.437 Convenience of hearings and timelines.
303.438 Civil action.
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States That Choose To Adopt the Part B Due
Process Hearing Procedures Under Section
615 of the Act
303.440 Filing a due process complaint.
303.441 Due process complaint.
303.442 Resolution process.
303.443 Impartial due process hearing.
303.444 Hearing rights.
303.445 Hearing decisions.
303.446 Finality of decision; appeal;
impartial review.
303.447 Timelines and convenience of hearings and reviews.
303.448 Civil action.
303.449 State enforcement mechanisms.
Subpart F—Use of Funds and Payor of Last
Resort
General
303.500 Use of funds, payor of last resort and system of payments.
Use of Funds
303.501 Permissive use of funds by the lead agency.
Payor of Last Resort—General Provisions
303.510 Payor of last resort.
303.511 Methods to ensure the provision of, and financial responsibility for, Part
C services.
Payor of Last Resort & System of Payments
Provisions—Use of Insurance, Benefits,
Systems of Payments, and Fees
303.520 Policies related to use of insurance to pay for Part C services.
303.521 System of payments and fees.
Subpart G—State Interagency Coordinating
Council
303.600 Establishment of Council.
303.601 Composition.
303.602 Meetings.
303.603 Use of funds by the Council.
303.604 Functions of the Council— required duties.
303.605 Authorized activities by the Council.
Subpart H—-State Monitoring and
Enforcement; Federal Monitoring and
Enforcement; Reporting; and Allocation of
Funds
Federal and State Monitoring and
Enforcement
303.700 State monitoring and enforcement.
303.701 State performance plans and data collection.
303.702 State use of targets and reporting.
303.703 Secretary’s review and determination regarding State
performance.
303.704 Enforcement.
303.705 Withholding funds.
303.706 Public attention.
303.707 Rule of construction.
303.708 State enforcement.
Reports—Program Information
303.720 Data requirements—general.
303.721 Annual report of children served— report requirement.
303.722 Data reporting.
303.723 Annual report of children served— certification. 303.724 Annual report of children served—
other responsibilities of the lead agency.
Allocation of Funds
303.730 Formula for State allocations.
303.731 Payments to Indians.
303.732 State allotments.
303.733 Reallotment of funds.
303.734 Reservation for State incentive grants.
Appendix A to Part 303—Index for IDEA Part C Regulations
Authority: 20 U.S.C. 1431 through 1444,
unless otherwise noted.
Subpart A—General
Purpose and Applicable Regulations
§ 303.1 Purpose of the early intervention
program for infants and toddlers with
disabilities.
The purpose of this part is to provide
financial assistance to States to—
(a) Develop and implement a
statewide, comprehensive, coordinated,
multidisciplinary, interagency system
that provides early intervention services
for infants and toddlers with disabilities
and their families;
(b) Facilitate the coordination of
payment for early intervention services
from Federal, State, local, and private
sources (including public and private
insurance coverage);
(c) Enhance State capacity to provide
quality early intervention services and
expand and improve existing early
intervention services being provided to
infants and toddlers with disabilities
and their families;
(d) Enhance the capacity of State and
local agencies and service providers to
identify, evaluate, and meet the needs of
all children, including historically
underrepresented populations,
particularly minority, low-income,
inner-city, and rural children, and
infants and toddlers in foster care; and
(e) Encourage States to expand
opportunities for children under three
years of age who would be at risk of
having substantial developmental delay
if they did not receive early intervention
services.
(Authority: 20 U.S.C. 1400(d)(2), 1431(a)(5),
1431(b))
§ 303.2 Eligible recipients of an award and
applicability of this part.
(a) Eligible recipients of an award.
Eligible recipients include the 50 States,
the Commonwealth of Puerto Rico, the
District of Columbia, the Secretary of
the Interior, and the following
jurisdictions: Guam, American Samoa,
the United States Virgin Islands, and the
Commonwealth of the Northern Mariana
Islands.
(b) Applicability of this part. (1) The provisions of this part apply
to—
(i) The State lead agency and any EIS
provider that is part of the statewide
system of early intervention, regardless
of whether that EIS provider receives
funds under part C of the Act; and
(ii) All children referred to the part C
program, including infants and toddlers
with disabilities consistent with the
definitions in §§ 303.6 and 303.21, and
their families.
(2) The provisions of this part do not
apply to any child with a disability
receiving a free appropriate public
education or FAPE under 34 CFR part
300.
(Authority: 20 U.S.C. 1401(31), 1434,
1435(a)(10)(A))
§ 303.3 Applicable regulations.
(a) The following regulations apply to
this part:
(1) The regulations in this part 303.
(2) The Education Department
General Administrative Regulations
(EDGAR), including 34 CFR parts 76
(except for § 76.103), 77, 79, 80, 81, 82,
84, 85, and 86.
(b) In applying the regulations cited in
paragraph (a)(2) of this section, any
reference to—
(1) State educational agency means
the lead agency under this part; and
(2) Education records or records
means early intervention records.
(Authority: 20 U.S.C. 1221(b), 1221e–3,
1431–1444)
Definitions Used in This Part
§ 303.4 Act.
Act means the Individuals with
Disabilities Education Act, as amended.
(Authority: 20 U.S.C. 1400(a))
§ 303.5 At-risk infant or toddler.
At-risk infant or toddler means an
individual under three years of age who
would be at risk of experiencing a
substantial developmental delay if early
intervention services were not provided
to the individual. At the State’s
discretion, at-risk infant or toddler may
include an infant or toddler who is at
risk of experiencing developmental
delays because of biological or
environmental factors that can be
identified (including low birth weight,
respiratory distress as a newborn, lack
of oxygen, brain hemorrhage, infection,
nutritional deprivation, a history of
abuse or neglect, and being directly
affected by illegal substance abuse or
withdrawal symptoms resulting from
prenatal drug exposure).
(Authority: 20 U.S.C. 1432(1), 1432(5)(B)(i)
and 1437(a)(6))
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§ 303.6 Child.
Child means an individual under the
age of six and may include an infant or
toddler with a disability, as that term is
defined in § 303.21.
(Authority: 20 U.S.C. 1432(5))
§ 303.7 Consent.
Consent means that—
(a) The parent has been fully informed
of all information relevant to the activity
for which consent is sought, in the
parent’s native language, as defined in
§ 303.25; (b) The parent understands and agrees
in writing to the carrying out of the
activity for which the parent’s consent
is sought, and the consent form
describes that activity and lists the early
intervention records (if any) that will be
released and to whom they will be
released; and (c)(1) The parent understands that the
granting of consent is voluntary on the
part of the parent and may be revoked
at any time. (2) If a parent revokes consent, that
revocation is not retroactive (i.e., it does
not apply to an action that occurred
before the consent was revoked).
(Authority: 20 U.S.C. 1439)
§ 303.8 Council.
Council means the State Interagency
Coordinating Council that meets the
requirements of subpart G of this part.
(Authority: 20 U.S.C. 1432(2))
§ 303.9 Day.
Day means calendar day, unless
otherwise indicated.
(Authority: 20 U.S.C. 1221e–3)
§ 303.10 Developmental delay.
Developmental delay, when used with
respect to a child residing in a State, has
the meaning given that term by the State
under § 303.111.
(Authority: 20 U.S.C. 1432(3))
§ 303.11 Early intervention service
program.
Early intervention service program or
EIS program means an entity designated
by the lead agency for reporting under
§§ 303.700 through 303.702.
(Authority: 20 U.S.C. 1416, 1431–1444)
§ 303.12 Early intervention service
provider.
(a) Early intervention service provider
or EIS provider means an entity
(whether public, private, or nonprofit)
or an individual that provides early
intervention services under part C of the
Act, whether or not the entity or
individual receives Federal funds under
part C of the Act, and may include, where appropriate, the lead agency and
a public agency responsible for
providing early intervention services to
infants and toddlers with disabilities in
the State under part C of the Act.
(b) An EIS provider is responsible
for— (1) Participating in the
multidisciplinary individualized family
service plan (IFSP) Team’s ongoing
assessment of an infant or toddler with
a disability and a family-directed
assessment of the resources, priorities,
and concerns of the infant’s or toddler’s
family, as related to the needs of the
infant or toddler, in the development of
integrated goals and outcomes for the
IFSP; (2) Providing early intervention
services in accordance with the IFSP of
the infant or toddler with a disability;
and (3) Consulting with and training
parents and others regarding the
provision of the early intervention
services described in the IFSP of the
infant or toddler with a disability.
(Authority: 20 U.S.C. 1431–1444)
§ 303.13 Early intervention services.
(a) General. Early intervention
services means developmental services
that— (1) Are provided under public
supervision; (2) Are selected in collaboration with
the parents; (3) Are provided at no cost, except,
subject to §§ 303.520 and 303.521,
where Federal or State law provides for
a system of payments by families,
including a schedule of sliding fees; (4) Are designed to meet the
developmental needs of an infant or
toddler with a disability and the needs
of the family to assist appropriately in
the infant’s or toddler’s development, as
identified by the IFSP Team, in any one
or more of the following areas,
including— (i) Physical development;
(ii) Cognitive development;
(iii) Communication development;
(iv) Social or emotional development;
or (v) Adaptive development;
(5) Meet the standards of the State in
which the early intervention services
are provided, including the
requirements of part C of the Act; (6) Include services identified under
paragraph (b) of this section; (7) Are provided by qualified
personnel (as that term is defined in
§ 303.31), including the types of
personnel listed in paragraph (c) of this
section; (8) To the maximum extent
appropriate, are provided in natural environments, as defined in § 303.26
and consistent with §§ 303.126 and
303.344(d); and
(9) Are provided in conformity with
an IFSP adopted in accordance with
section 636 of the Act and § 303.20. (b) Types of early intervention
services. Subject to paragraph (d) of this
section, early intervention services
include the following services defined
in this paragraph: (1) Assistive technology device and
service are defined as follows:
(i) Assistive technology device means
any item, piece of equipment, or
product system, whether acquired
commercially off the shelf, modified, or
customized, that is used to increase,
maintain, or improve the functional
capabilities of an infant or toddler with
a disability. The term does not include
a medical device that is surgically
implanted, including a cochlear
implant, or the optimization (e.g.,
mapping), maintenance, or replacement
of that device. (ii) Assistive technology service means
any service that directly assists an infant
or toddler with a disability in the
selection, acquisition, or use of an
assistive technology device. The term
includes— (A) The evaluation of the needs of an
infant or toddler with a disability,
including a functional evaluation of the
infant or toddler with a disability in the
child’s customary environment; (B) Purchasing, leasing, or otherwise
providing for the acquisition of assistive
technology devices by infants or
toddlers with disabilities; (C) Selecting, designing, fitting,
customizing, adapting, applying,
maintaining, repairing, or replacing
assistive technology devices; (D) Coordinating and using other
therapies, interventions, or services
with assistive technology devices, such
as those associated with existing
education and rehabilitation plans and
programs; (E) Training or technical assistance for
an infant or toddler with a disability or,
if appropriate, that child’s family; and (F) Training or technical assistance for
professionals (including individuals
providing education or rehabilitation
services) or other individuals who
provide services to, or are otherwise
substantially involved in the major life
functions of, infants and toddlers with
disabilities. (2) Audiology services include—
(i) Identification of children with
auditory impairments, using at-risk
criteria and appropriate audiologic
screening techniques; (ii) Determination of the range, nature,
and degree of hearing loss and
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communication functions, by use of
audiological evaluation procedures;
(iii) Referral for medical and other
services necessary for the habilitation or
rehabilitation of an infant or toddler
with a disability who has an auditory
impairment; (iv) Provision of auditory training,
aural rehabilitation, speech reading and
listening devices, orientation and
training, and other services; (v) Provision of services for
prevention of hearing loss; and (vi) Determination of the child’s
individual amplification, including
selecting, fitting, and dispensing
appropriate listening and vibrotactile
devices, and evaluating the effectiveness
of those devices. (3) Family training, counseling, and
home visits means services provided, as
appropriate, by social workers,
psychologists, and other qualified
personnel to assist the family of an
infant or toddler with a disability in
understanding the special needs of the
child and enhancing the child’s
development. (4) Health services has the meaning
given the term in § 303.16. (5) Medical services means services
provided by a licensed physician for
diagnostic or evaluation purposes to
determine a child’s developmental
status and need for early intervention
services. (6) Nursing services include—
(i) The assessment of health status for
the purpose of providing nursing care,
including the identification of patterns
of human response to actual or potential
health problems; (ii) The provision of nursing care to
prevent health problems, restore or
improve functioning, and promote
optimal health and development; and (iii) The administration of
medications, treatments, and regimens
prescribed by a licensed physician. (7) Nutrition services include—
(i) Conducting individual assessments
in— (A) Nutritional history and dietary
intake; (B) Anthropometric, biochemical, and
clinical variables; (C) Feeding skills and feeding
problems; and (D) Food habits and food preferences;
(ii) Developing and monitoring
appropriate plans to address the
nutritional needs of children eligible
under this part, based on the findings in
paragraph (b)(7)(i) of this section; and (iii) Making referrals to appropriate
community resources to carry out
nutrition goals. (8) Occupational therapy includes
services to address the functional needs of an infant or toddler with a disability
related to adaptive development,
adaptive behavior, and play, and
sensory, motor, and postural
development. These services are
designed to improve the child’s
functional ability to perform tasks in
home, school, and community settings,
and include—
(i) Identification, assessment, and
intervention; (ii) Adaptation of the environment,
and selection, design, and fabrication of
assistive and orthotic devices to
facilitate development and promote the
acquisition of functional skills; and (iii) Prevention or minimization of the
impact of initial or future impairment,
delay in development, or loss of
functional ability. (9) Physical therapy includes services
to address the promotion of
sensorimotor function through
enhancement of musculoskeletal status,
neurobehavioral organization,
perceptual and motor development,
cardiopulmonary status, and effective
environmental adaptation. These
services include— (i) Screening, evaluation, and
assessment of children to identify
movement dysfunction; (ii) Obtaining, interpreting, and
integrating information appropriate to
program planning to prevent, alleviate,
or compensate for movement
dysfunction and related functional
problems; and (iii) Providing individual and group
services or treatment to prevent,
alleviate, or compensate for, movement
dysfunction and related functional
problems. (10) Psychological services include—
(i) Administering psychological and
developmental tests and other
assessment procedures; (ii) Interpreting assessment results;
(iii) Obtaining, integrating, and
interpreting information about child
behavior and child and family
conditions related to learning, mental
health, and development; and (iv) Planning and managing a program
of psychological services, including
psychological counseling for children
and parents, family counseling,
consultation on child development,
parent training, and education
programs. (11) Service coordination services has
the meaning given the term in § 303.34. (12) Sign language and cued language
services include teaching sign language,
cued language, and auditory/oral
language, providing oral transliteration
services (such as amplification), and
providing sign and cued language
interpretation. (13)
Social work services include—
(i) Making home visits to evaluate a
child’s living conditions and patterns of
parent-child interaction; (ii) Preparing a social or emotional
developmental assessment of the infant
or toddler within the family context; (iii) Providing individual and family-
group counseling with parents and other
family members, and appropriate social
skill-building activities with the infant
or toddler and parents; (iv) Working with those problems in
the living situation (home, community,
and any center where early intervention
services are provided) of an infant or
toddler with a disability and the family
of that child that affect the child’s
maximum utilization of early
intervention services; and (v) Identifying, mobilizing, and
coordinating community resources and
services to enable the infant or toddler
with a disability and the family to
receive maximum benefit from early
intervention services. (14) Special instruction includes—
(i) The design of learning
environments and activities that
promote the infant’s or toddler’s
acquisition of skills in a variety of
developmental areas, including
cognitive processes and social
interaction; (ii) Curriculum planning, including
the planned interaction of personnel,
materials, and time and space, that leads
to achieving the outcomes in the IFSP
for the infant or toddler with a
disability; (iii) Providing families with
information, skills, and support related
to enhancing the skill development of
the child; and (iv) Working with the infant or
toddler with a disability to enhance the
child’s development. (15) Speech-language pathology
services include—
(i) Identification of children with
communication or language disorders
and delays in development of
communication skills, including the
diagnosis and appraisal of specific
disorders and delays in those skills; (ii) Referral for medical or other
professional services necessary for the
habilitation or rehabilitation of children
with communication or language
disorders and delays in development of
communication skills; and (iii) Provision of services for the
habilitation, rehabilitation, or
prevention of communication or
language disorders and delays in
development of communication skills. (16) Transportation and related costs
include the cost of travel and other costs
that are necessary to enable an infant or
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toddler with a disability and the child’s
family to receive early intervention
services.
(17) Vision services mean—
(i) Evaluation and assessment of
visual functioning, including the
diagnosis and appraisal of specific
visual disorders, delays, and abilities
that affect early childhood development; (ii) Referral for medical or other
professional services necessary for the
habilitation or rehabilitation of visual
functioning disorders, or both; and (iii) Communication skills training,
orientation and mobility training for all
environments, visual training, and
additional training necessary to activate
visual motor abilities. (c) Qualified personnel. The following
are the types of qualified personnel who
provide early intervention services
under this part: (1) Audiologists.
(2) Family therapists.
(3) Nurses.
(4) Occupational therapists.
(5) Orientation and mobility
specialists. (6) Pediatricians and other physicians
for diagnostic and evaluation purposes. (7) Physical therapists.
(8) Psychologists.
(9) Registered dieticians.
(10) Social workers.
(11) Special educators, including
teachers of children with hearing
impairments (including deafness) and
teachers of children with visual
impairments (including blindness). (12) Speech and language
pathologists. (13) Vision specialists, including
ophthalmologists and optometrists. (d) Other services. The services and
personnel identified and defined in
paragraphs (b) and (c) of this section do
not comprise exhaustive lists of the
types of services that may constitute
early intervention services or the types
of qualified personnel that may provide
early intervention services. Nothing in
this section prohibits the identification
in the IFSP of another type of service as
an early intervention service provided
that the service meets the criteria
identified in paragraph (a) of this
section or of another type of personnel
that may provide early intervention
services in accordance with this part,
provided such personnel meet the
requirements in § 303.31.
(Authority: 20 U.S.C. 1432(4))
§ 303.14 Elementary school.
Elementary school means a nonprofit
institutional day or residential school,
including a public elementary charter
school, that provides elementary
education, as determined under State
law.
(Authority: 20 U.S.C. 1401(6))
§ 303.15 Free appropriate public
education.
Free appropriate public education or
FAPE, as used in §§ 303.211, 303.501,
and 303.521, means special education
and related services that— (a) Are provided at public expense,
under public supervision and direction,
and without charge; (b) Meet the standards of the State
educational agency (SEA), including the
requirements of part B of the Act; (c) Include an appropriate preschool,
elementary school, or secondary school
education in the State involved; and (d) Are provided in conformity with
an individualized education program
(IEP) that meets the requirements of 34
CFR 300.320 through 300.324.
(Authority: 20 U.S.C. 1401(9))
§ 303.16 Health services.
(a) Health services mean services
necessary to enable an otherwise
eligible child to benefit from the other
early intervention services under this
part during the time that the child is
eligible to receive early intervention
services. (b) The term includes—
(1) Such services as clean intermittent
catheterization, tracheostomy care, tube
feeding, the changing of dressings or
colostomy collection bags, and other
health services; and (2) Consultation by physicians with
other service providers concerning the
special health care needs of infants and
toddlers with disabilities that will need
to be addressed in the course of
providing other early intervention
services. (c) The term does not include—
(1) Services that are—
(i) Surgical in nature (such as cleft
palate surgery, surgery for club foot, or
the shunting of hydrocephalus); (ii) Purely medical in nature (such as
hospitalization for management of
congenital heart ailments, or the
prescribing of medicine or drugs for any
purpose); or (iii) Related to the implementation,
optimization (e.g., mapping),
maintenance, or replacement of a
medical device that is surgically
implanted, including a cochlear
implant. (A) Nothing in this part limits the
right of an infant or toddler with a
disability with a surgically implanted
device (e.g., cochlear implant) to receive
the early intervention services that are
identified in the child’s IFSP as being
needed to meet the child’s
developmental outcomes. (B) Nothing in this part prevents the
EIS provider from routinely checking that either the hearing aid or the
external components of a surgically
implanted device (e.g.,
cochlear
implant) of an infant or toddler with a
disability are functioning properly; (2) Devices (such as heart monitors,
respirators and oxygen, and
gastrointestinal feeding tubes and
pumps) necessary to control or treat a
medical condition; and (3) Medical-health services (such as
immunizations and regular ‘‘well-baby’’
care) that are routinely recommended
for all children.
(Authority: 20 U.S.C. 1432(4))
§ 303.17 Homeless children.
Homeless children means children
who meet the definition given the term
homeless children and youths in section
725 (42 U.S.C. 11434a) of the
McKinney-Vento Homeless Assistance
Act, as amended, 42 U.S.C. 11431 et seq.
(Authority: 20 U.S.C. 1401(11))
§ 303.18 Include; including.
Include or including means that the
items named are not all of the possible
items that are covered, whether like or
unlike the ones named.
(Authority: 20 U.S.C. 1221e–3)
§ 303.19 Indian; Indian tribe.
(a) Indian means an individual who is
a member of an Indian tribe. (b) Indian tribe means any Federal or
State Indian tribe, band, rancheria,
pueblo, colony, or community,
including any Alaska Native village or
regional village corporation (as defined
in or established under the Alaska
Native Claims Settlement Act, 43 U.S.C.
1601 et seq.).
(c) Nothing in this definition is
intended to indicate that the Secretary
of the Interior is required to provide
services or funding to a State Indian
Tribe that is not listed in the Federal
Register list of Indian entities
recognized as eligible to receive services
from the United States, published
pursuant to section 104 of the Federally
Recognized Indian Tribe List Act of
1994, 25 U.S.C. 479a–1.
(Authority: 20 U.S.C. 1401(12)–(13))
§ 303.20 Individualized family service plan.
Individualized family service plan or
IFSP means a written plan for providing
early intervention services to an infant
or toddler with a disability under this
part and the infant’s or toddler’s family
that— (a) Is based on the evaluation and
assessment described in § 303.321; (b) Includes the content specified in
§ 303.344; (c) Is implemented as soon as possible
once parental consent for the early
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intervention services in the IFSP is
obtained (consistent with § 303.420);
and
(d) Is developed in accordance with
the IFSP procedures in §§ 303.342,
303.343, and 303.345.
(Authority: 20 U.S.C. 1401(15), 1435(a)(4),
1436)
§ 303.21 Infant or toddler with a disability.
(a) Infant or toddler with a disability
means an individual under three years
of age who needs early intervention
services because the individual— (1) Is experiencing a developmental
delay, as measured by appropriate
diagnostic instruments and procedures,
in one or more of the following areas: (i) Cognitive development.
(ii) Physical development, including
vision and hearing. (iii) Communication development.
(iv) Social or emotional development.
(v) Adaptive development; or
(2) Has a diagnosed physical or
mental condition that— (i) Has a high probability of resulting
in developmental delay; and (ii) Includes conditions such as
chromosomal abnormalities; genetic or
congenital disorders; sensory
impairments; inborn errors of
metabolism; disorders reflecting
disturbance of the development of the
nervous system; congenital infections;
severe attachment disorders; and
disorders secondary to exposure to toxic
substances, including fetal alcohol
syndrome. (b) Infant or toddler with a disability
may include, at a State’s discretion, an
at-risk infant or toddler (as defined in
§ 303.5). (c) Infant or toddler with a disability
may include, at a State’s discretion, a
child with a disability who is eligible
for services under section 619 of the Act
and who previously received services
under this part until the child enters, or
is eligible under State law to enter,
kindergarten or elementary school, as
appropriate, provided that any programs
under this part must include— (1) An educational component that
promotes school readiness and
incorporates pre-literacy, language, and
numeracy skills for children ages three
and older who receive part C services
pursuant to § 303.211; and (2) A written notification to parents of
a child with a disability who is eligible
for services under section 619 of the Act
and who previously received services
under this part of their rights and
responsibilities in determining whether
their child will continue to receive
services under this part or participate in
preschool programs under section 619
of the Act.
(Authority: 20 U.S.C. 1401(16), 1432(5))
§ 303.22 Lead agency.
Lead agency means the agency
designated by the State’s Governor
under section 635(a)(10) of the Act and
§ 303.120 that receives funds under
section 643 of the Act to administer the
State’s responsibilities under part C of
the Act.
(Authority: 20 U.S.C. 1435(a)(10))
§ 303.23 Local educational agency.
(a) General. Local educational agency
or LEA means a public board of
education or other public authority
legally constituted within a State for
either administrative control or
direction of, or to perform a service
function for, public elementary schools
or secondary schools in a city, county,
township, school district, or other
political subdivision of a State, or for a
combination of school districts or
counties as are recognized in a State as
an administrative agency for its public
elementary schools or secondary
schools. (b) Educational service agencies and
other public institutions or agencies.
The term includes the following: (1) Educational service agency,
defined as a regional public
multiservice agency— (i) Authorized by State law to
develop, manage, and provide services
or programs to LEAs; and (ii) Recognized as an administrative
agency for purposes of the provision of
special education and related services
provided within public elementary
schools and secondary schools of the
State. (2) Any other public institution or
agency having administrative control
and direction of a public elementary
school or secondary school, including a
public charter school that is established
as an LEA under State law. (3) Entities that meet the definition of
intermediate educational unit or IEU in
section 602(23) of the Act, as in effect
prior to June 4, 1997. Under that
definition an intermediate educational
unit or IEU means any public authority
other than an LEA that— (i) Is under the general supervision of
a State educational agency; (ii) Is established by State law for the
purpose of providing FAPE on a
regional basis; and (iii) Provides special education and
related services to children with
disabilities within the State. (c) BIE-funded schools. The term
includes an elementary school or
secondary school funded by the Bureau
of Indian Education, and not subject to
the jurisdiction of any SEA other than the Bureau of Indian Education, but
only to the extent that the inclusion
makes the school eligible for programs
for which specific eligibility is not
provided to the school in another
provision of law and the school does not
have a student population that is
smaller than the student population of
the LEA receiving assistance under the
Act with the smallest student
population.
(Authority: 20 U.S.C. 1401(5), 1401(19))
§ 303.24 Multidisciplinary.
Multidisciplinary
means the
involvement of two or more separate
disciplines or professions and with
respect to— (a) Evaluation of the child in
§§ 303.113 and 303.321(a)(1)(i) and
assessments of the child and family in
§ 303.321(a)(1)(ii), may include one
individual who is qualified in more
than one discipline or profession; and (b) The IFSP Team in § 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)).
(Authority: 20 U.S.C. 1221e–3, 1435(a)(3),
1436(a)(1), 1436(a)(3))
§ 303.25 Native language.
(a) Native language, when used with
respect to an individual who is limited
English proficient or LEP (as that term
is defined in section 602(18) of the Act),
means— (1) The language normally used by
that individual, or, in the case of a
child, the language normally used by
the parents of the child, except as
provided in paragraph (a)(2) of this
section; and (2) For evaluations and assessments
conducted pursuant to § 303.321(a)(5)
and (a)(6), the language normally used
by the child, if determined
developmentally appropriate for the
child by qualified personnel conducting
the evaluation or assessment. (b) Native language, when used with
respect to an individual who is deaf or
hard of hearing, blind or visually
impaired, or for an individual with no
written language, means the mode of
communication that is normally used by
the individual (such as sign language,
braille, or oral communication).
(Authority: 20 U.S.C. 1401(20))
§ 303.26 Natural environments.
Natural environments means settings
that are natural or typical for a same-
aged infant or toddler without a
disability, may include the home or
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community settings, and must be
consistent with the provisions of
§ 303.126.
(Authority: 20 U.S.C. 1432, 1435, 1436)
§ 303.27 Parent.
(a) Parent means—
(1) A biological or adoptive parent of
a child; (2) A foster parent, unless State law,
regulations, or contractual obligations
with a State or local entity prohibit a
foster parent from acting as a parent; (3) A guardian generally authorized to
act as the child’s parent, or authorized
to make early intervention, educational,
health or developmental decisions for
the child (but not the State if the child
is a ward of the State); (4) An individual acting in the place
of a biological or adoptive parent
(including a grandparent, stepparent, or
other relative) with whom the child
lives, or an individual who is legally
responsible for the child’s welfare; or (5) A surrogate parent who has been
appointed in accordance with § 303.422
or section 639(a)(5) of the Act. (b)(1) Except as provided in paragraph
(b)(2) of this section, the biological or
adoptive parent, when attempting to act
as the parent under this part and when
more than one party is qualified under
paragraph (a) of this section to act as a
parent, must be presumed to be the
parent for purposes of this section
unless the biological or adoptive parent
does not have legal authority to make
educational or early intervention service
decisions for the child. (2) If a judicial decree or order
identifies a specific person or persons
under paragraphs (a)(1) through (a)(4) of
this section to act as the ‘‘parent’’ of a
child or to make educational or early
intervention service decisions on behalf
of a child, then the person or persons
must be determined to be the ‘‘parent’’
for purposes of part C of the Act, except
that if an EIS provider or a public
agency provides any services to a child
or any family member of that child, that
EIS provider or public agency may not
act as the parent for that child.
(Authority: 20 U.S.C. 1401(23), 1439(a)(5))
§ 303.28 Parent training and information
center.
Parent training and information
center means a center assisted under
section 671 or 672 of the Act.
(Authority: 20 U.S.C. 1401(25))
§ 303.29 Personally identifiable
information.
Personally identifiable information
means personally identifiable
information as defined in 34 CFR 99.3,
as amended, except that the term ‘‘student’’ in the definition of personally
identifiable information in 34 CFR 99.3
means ‘‘child’’ as used in this part and
any reference to ‘‘school’’ means ‘‘EIS
provider’’ as used in this part.
(Authority: 20 U.S.C. 1415, 1439)
§ 303.30 Public agency.
As used in this part, public agency
means the lead agency and any other
agency or political subdivision of the
State.
(Authority: 20 U.S.C. 1435(a)(10))
§ 303.31 Qualified personnel.
Qualified personnel means personnel
who have met State approved or
recognized certification, licensing,
registration, or other comparable
requirements that apply to the areas in
which the individuals are conducting
evaluations or assessments or providing
early intervention services.
(Authority: 20 U.S.C. 1432(4)(F))
§ 303.32 Scientifically based research.
Scientifically based research has the
meaning given the term in section
9101(37) of the Elementary and
Secondary Education Act of 1965, as
amended (ESEA). In applying the ESEA
to the regulations under part C of the
Act, any reference to ‘‘education
activities and programs’’ refers to ‘‘early
intervention services.’’
(Authority: 20 U.S.C. 1435(a)(2))
§ 303.33 Secretary.
Secretary means the Secretary of
Education.
(Authority: 20 U.S.C. 1401(28))
§ 303.34 Service coordination services
(case management).
(a) General. (1) As used in this part,
service coordination services mean
services provided by a service
coordinator to assist and enable an
infant or toddler with a disability and
the child’s family to receive the services
and rights, including procedural
safeguards, required under this part. (2) Each infant or toddler with a
disability and the child’s family must be
provided with one service coordinator
who is responsible for— (i) Coordinating all services required
under this part across agency lines; and (ii) Serving as the single point of
contact for carrying out the activities
described in paragraphs (a)(3) and (b) of
this section. (3) Service coordination is an active,
ongoing process that involves— (i) Assisting parents of infants and
toddlers with disabilities in gaining
access to, and coordinating the
provision of, the early intervention
services required under this part; and (ii) Coordinating the other services
identified in the IFSP under § 303.344(e)
that are needed by, or are being
provided to, the infant or toddler with
a disability and that child’s family.
(b) Specific service coordination
services. Service coordination services
include—
(1) Assisting parents of infants and
toddlers with disabilities in obtaining
access to needed early intervention
services and other services identified in
the IFSP, including making referrals to
providers for needed services and
scheduling appointments for infants and
toddlers with disabilities and their
families;
(2) Coordinating the provision of early
intervention services and other services
(such as educational, social, and
medical services that are not provided
for diagnostic or evaluative purposes)
that the child needs or is being
provided;
(3) Coordinating evaluations and
assessments;
(4) Facilitating and participating in
the development, review, and
evaluation of IFSPs;
(5) Conducting referral and other
activities to assist families in identifying
available EIS providers;
(6) Coordinating, facilitating, and
monitoring the delivery of services
required under this part to ensure that
the services are provided in a timely
manner;
(7) Conducting follow-up activities to
determine that appropriate part C
services are being provided;
(8) Informing families of their rights
and procedural safeguards, as set forth
in subpart E of this part and related
resources;
(9) Coordinating the funding sources
for services required under this part;
and
(10) Facilitating the development of a
transition plan to preschool, school, or,
if appropriate, to other services.
(c) Use of the term service
coordination or service coordination
services. The lead agency’s or an EIS
provider’s use of the term service
coordination or service coordination
services does not preclude
characterization of the services as case
management or any other service that is
covered by another payor of last resort
(including Title XIX of the Social
Security Act—Medicaid), for purposes
of claims in compliance with the
requirements of §§ 303.501 through
303.521 (Payor of last resort provisions).
(Authority: 20 U.S.C. 1432(4), 1435(a)(4),
1436(d)(7), 1440)
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§ 303.35 State.
Except as provided in § 303.732(d)(3)
(regarding State allotments under this
part), State means each of the 50 States,
the Commonwealth of Puerto Rico, the
District of Columbia, and the four
outlying areas and jurisdictions of
Guam, American Samoa, the United
States Virgin Islands, and the
Commonwealth of the Northern Mariana
Islands.
(Authority: 20 U.S.C. 1401(31))
§ 303.36 State educational agency.
(a) State educational agency or SEA
means the State board of education or
other agency or officer primarily
responsible for the State supervision of
public elementary schools and
secondary schools, or, if there is no such
officer or agency, an officer or agency
designated by the Governor or by State
law. (b) The term includes the agency that
receives funds under sections 611 and
619 of the Act to administer the State’s
responsibilities under part B of the Act.
(Authority: 20 U.S.C. 1401(32))
§ 303.37 Ward of the State.
(a) General. Subject to paragraph (b)
of this section, ward of the State means
a child who, as determined by the State
where the child resides, is— (1) A foster child;
(2) A ward of the State; or
(3) In the custody of a public child
welfare agency. (b) Exception. Ward of the State does
not include a foster child who has a
foster parent who meets the definition
of a parent in § 303.27.
(Authority: 20 U.S.C. 1401(36))
Subpart B—State Eligibility for a Grant
and Requirements for a Statewide
System
General Authority and Eligibility
§ 303.100 General authority.
The Secretary, in accordance with
part C of the Act, makes grants to States
(from their allotments under section 643
of the Act) to assist each State to
maintain and implement a statewide,
comprehensive, coordinated,
multidisciplinary, interagency system to
provide early intervention services for
infants and toddlers with disabilities
and their families.
(Authority: 20 U.S.C. 1433)
§ 303.101 State eligibility—requirements
for a grant under this part.
In order to be eligible for a grant
under part C of the Act for any fiscal
year, a State must meet the following
conditions: (a)
Assurances regarding early
intervention services and a statewide
system. The State must provide
assurances to the Secretary that— (1) The State has adopted a policy that
appropriate early intervention services,
as defined in § 303.13, are available to
all infants and toddlers with disabilities
in the State and their families,
including— (i) Indian infants and toddlers with
disabilities and their families residing
on a reservation geographically located
in the State; (ii) Infants and toddlers with
disabilities who are homeless children
and their families; and (iii) Infants and toddlers with
disabilities who are wards of the State;
and (2) The State has in effect a statewide
system of early intervention services
that meets the requirements of section
635 of the Act, including policies and
procedures that address, at a minimum,
the components required in §§ 303.111
through 303.126. (b) State application and assurances.
The State must provide information and
assurances to the Secretary, in
accordance with subpart C of this part,
including— (1) Information that shows that the
State meets the State application
requirements in §§ 303.200 through
303.212; and (2) Assurances that the State also
meets the requirements in §§ 303.221
through 303.227. (c) Approval before implementation.
The State must obtain approval by the
Secretary before implementing any
policy or procedure required to be
submitted as part of the State’s
application in §§ 303.203, 303.204,
303.206, 303.207, 303.208, 303.209, and
303.211.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1434, 1435, 1437)
State Conformity With Part C of the Act
and Abrogation of State Sovereign
Immunity
§ 303.102 State conformity with Part C of
the Act.
Each State that receives funds under
part C of the Act must ensure that any
State rules, regulations, and policies
relating to this part conform to the
purposes and requirements of this part.
(Authority: 20 U.S.C. 1407(a)(1))
§ 303.103 Abrogation of State sovereign
immunity.
(a) General. A State is not immune
under the 11th amendment of the
Constitution of the United States from suit in Federal court for a violation of
part C of the Act.
(b) Remedies. In a suit against a State
for a violation of part C of the Act,
remedies (including remedies both at
law and in equity) are available for such
a violation to the same extent as those
remedies are available for such a
violation in a suit against any public
entity other than a State. (c) Effective date. Paragraphs (a) and
(b) of this section apply with respect to
violations that occur in whole or part
after October 30, 1990, the date of
enactment of the Education of the
Handicapped Act Amendments of 1990.
(Authority: 20 U.S.C. 1403)
Equipment and Construction
§ 303.104 Acquisition of equipment and
construction or alteration of facilities.
(a) General. If the Secretary
determines that a program authorized
under part C of the Act will be
improved by permitting program funds
to be used to acquire appropriate
equipment or to construct new facilities
or alter existing facilities, the Secretary
may allow the use of those funds for
those purposes. (b) Compliance with certain
regulations. Any construction of new
facilities or alteration of existing
facilities under paragraph (a) of this
section must comply with the
requirements of— (1) Appendix A of part 36 of title 28,
Code of Federal Regulations (commonly
known as the ‘‘Americans with
Disabilities Act Accessibility Guidelines
for Buildings and Facilities’’); or (2) Appendix A of subpart 101–19.6 of
title 41, Code of Federal Regulations
(commonly known as the ‘‘Uniform
Federal Accessibility Standards’’).
(Authority: 20 U.S.C. 1404)
Positive Efforts To Employ and
Advance Qualified Individuals With
Disabilities
§ 303.105 Positive efforts to employ and
advance qualified individuals with
disabilities.
Each recipient of assistance under
part C of the Act must make positive
efforts to employ and advance in
employment, qualified individuals with
disabilities in programs assisted under
part C of the Act.
(Authority: 20 U.S.C. 1405)
Minimum Components of a Statewide
System
§ 303.110 Minimum components of a
statewide system.
Each statewide system (system) must
include, at a minimum, the components
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described in §§ 303.111 through
303.126.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a))
§ 303.111 State definition of
developmental delay.
Each system must include the State’s
rigorous definition of developmental
delay, consistent with §§ 303.10 and
303.203(c), that will be used by the State
in carrying out programs under part C
of the Act in order to appropriately
identify infants and toddlers with
disabilities who are in need of services
under part C of the Act. The definition
must— (a) Describe, for each of the areas
listed in § 303.21(a)(1), the evaluation
and assessment procedures, consistent
with § 303.321, that will be used to
measure a child’s development; and (b) Specify the level of developmental
delay in functioning or other
comparable criteria that constitute a
developmental delay in one or more of
the developmental areas identified in
§ 303.21(a)(1).
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(1))
§ 303.112 Availability of early intervention
services.
Each system must include a State
policy that is in effect and that ensures
that appropriate early intervention
services are based on scientifically
based research, to the extent practicable,
and are available to all infants and
toddlers with disabilities and their
families, including— (a) Indian infants and toddlers with
disabilities and their families residing
on a reservation geographically located
in the State; and (b) Infants and toddlers with
disabilities who are homeless children
and their families.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(2))
§ 303.113 Evaluation, assessment, and
nondiscriminatory procedures.
(a) Subject to paragraph (b) of this
section, each system must ensure the
performance of— (1) A timely, comprehensive,
multidisciplinary evaluation of the
functioning of each infant or toddler
with a disability in the State; and (2) A family-directed identification of
the needs of the family of the infant or
toddler to assist appropriately in the
development of the infant or toddler. (b) The evaluation and family-
directed identification required in paragraph (a) of this section must meet
the requirements of § 303.321.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(3))
§ 303.114 Individualized family service
plan (IFSP).
Each system must ensure, for each
infant or toddler with a disability and
his or her family in the State, that an
IFSP, as defined in § 303.20, is
developed and implemented that meets
the requirements of §§ 303.340 through
303.345, and that includes service
coordination services, as defined in
§ 303.34.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(4))
§ 303.115 Comprehensive child find
system.
Each system must include a
comprehensive child find system that
meets the requirements in §§ 303.302
and 303.303.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(5))
§ 303.116 Public awareness program.
Each system must include a public
awareness program that— (a) Focuses on the early identification
of infants and toddlers with disabilities;
and (b) Provides information to parents of
infants and toddlers through primary
referral sources in accordance with
§ 303.301.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(6))
§ 303.117 Central directory.
Each system must include a central
directory that is accessible to the general
public (i.e., through the lead agency’s
Web site and other appropriate means)
and includes accurate, up-to-date
information about— (a) Public and private early
intervention services, resources, and
experts available in the State; (b) Professional and other groups
(including parent support, and training
and information centers, such as those
funded under the Act) that provide
assistance to infants and toddlers with
disabilities eligible under part C of the
Act and their families; and (c) Research and demonstration
projects being conducted in the State
relating to infants and toddlers with
disabilities.
(Approved by Office of Management and
Budget under control number 1820–0550) (Authority: 20 U.S.C. 1435(a)(7))
§ 303.118 Comprehensive system of
personnel development (CSPD).
Each system must include a
comprehensive system of personnel
development, including the training of
paraprofessionals and the training of
primary referral sources with respect to
the basic components of early
intervention services available in the
State. A comprehensive system of
personnel development— (a) Must include—
(1) Training personnel to implement
innovative strategies and activities for
the recruitment and retention of EIS
providers; (2) Promoting the preparation of EIS
providers who are fully and
appropriately qualified to provide early
intervention services under this part;
and (3) Training personnel to coordinate
transition services for infants and
toddlers with disabilities who are
transitioning from an early intervention
service program under part C of the Act
to a preschool program under section
619 of the Act, Head Start, Early Head
Start, an elementary school program
under part B of the Act, or another
appropriate program. (b) May include—
(1) Training personnel to work in
rural and inner-city areas; (2) Training personnel in the
emotional and social development of
young children; and (3) Training personnel to support
families in participating fully in the
development and implementation of the
child’s IFSP; and (4) Training personnel who provide
services under this part using standards
that are consistent with early learning
personnel development standards
funded under the State Advisory
Council on Early Childhood Education
and Care established under the Head
Start Act, if applicable.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(8))
§ 303.119 Personnel standards.
(a) General. Each system must include
policies and procedures relating to the
establishment and maintenance of
qualification standards to ensure that
personnel necessary to carry out the
purposes of this part are appropriately
and adequately prepared and trained. (b) Qualification standards. The
policies and procedures required in
paragraph (a) of this section must
provide for the establishment and
maintenance of qualification standards
that are consistent with any State-
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60254 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
approved or State-recognized
certification, licensing, registration, or
other comparable requirements that
apply to the profession, discipline, or
area in which personnel are providing
early intervention services.
(c) Use of paraprofessionals and
assistants. Nothing in part C of the Act
may be construed to prohibit the use of
paraprofessionals and assistants who are
appropriately trained and supervised in
accordance with State law, regulation,
or written policy to assist in the
provision of early intervention services
under part C of the Act to infants and
toddlers with disabilities.
(d) Policy to address shortage of
personnel. A State may adopt a policy
that includes making ongoing good-faith
efforts to recruit and hire appropriately
and adequately trained personnel to
provide early intervention services to
infants and toddlers with disabilities,
including, in a geographic area of the
State where there is a shortage of such
personnel, the most qualified
individuals available who are making
satisfactory progress toward completing
applicable course work necessary to
meet the standards described in
paragraphs (a) and (b) of this section.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(9), 1435(b))
§ 303.120 Lead agency role in supervision,
monitoring, funding, interagency
coordination, and other responsibilities.
Each system must include a single
line of responsibility in a lead agency
designated or established by the
Governor that is responsible for the
following:
(a)(1) The general administration and
supervision of programs and activities
administered by agencies, institutions,
organizations, and EIS providers
receiving assistance under part C of the
Act.
(2) The monitoring of programs and
activities used by the State to carry out
part C of the Act (whether or not the
programs or activities are administered
by agencies, institutions, organizations,
and EIS providers that are receiving
assistance under part C of the Act), to
ensure that the State complies with part
C of the Act, including—
(i) Monitoring agencies, institutions,
organizations, and EIS providers used
by the State to carry out part C of the
Act;
(ii) Enforcing any obligations imposed
on those agencies, institutions,
organizations, and EIS providers under
part C of the Act and these regulations;
(iii) Providing technical assistance, if
necessary, to those agencies, institutions, organizations, and EIS
providers;
(iv) Correcting any noncompliance
identified through monitoring as soon as
possible and in no case later than one
year after the lead agency’s
identification of the noncompliance;
and (v) Conducting the activities in
paragraphs (a)(2)(i) through (a)(2)(iv) of
this section, consistent with §§ 303.700
through 303.707, and any other
activities required by the State under
those sections. (b) The identification and
coordination of all available resources
for early intervention services within
the State, including those from Federal,
State, local, and private sources,
consistent with subpart F of this part. (c) The assignment of financial
responsibility in accordance with
subpart F of this part. (d) The development of procedures in
accordance with subpart F of this part
to ensure that early intervention
services are provided to infants and
toddlers with disabilities and their
families under part C of the Act in a
timely manner, pending the resolution
of any disputes among public agencies
or EIS providers. (e) The resolution of intra- and
interagency disputes in accordance with
subpart F of this part. (f) The entry into formal interagency
agreements or other written methods of
establishing financial responsibility,
consistent with § 303.511, that define
the financial responsibility of each
agency for paying for early intervention
services (consistent with State law) and
procedures for resolving disputes and
that include all additional components
necessary to ensure meaningful
cooperation and coordination as set
forth in subpart F of this part.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1416, 1435(a)(10), 1442)
§ 303.121 Policy for contracting or
otherwise arranging for services.
Each system must include a policy
pertaining to the contracting or making
of other arrangements with public or
private individuals or agency service
providers to provide early intervention
services in the State, consistent with the
provisions of part C of the Act,
including the contents of the
application, and the conditions of the
contract or other arrangements. The
policy must— (a) Include a requirement that all early
intervention services must meet State
standards and be consistent with the
provisions of this part; and (b) Be consistent with the Education
Department General Administrative
Regulations in 34 CFR part 80.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(11))
§ 303.122 Reimbursement procedures.
Each system must include procedures
for securing the timely reimbursement
of funds used under part C of the Act,
in accordance with subpart F of this
part.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(12), 1440(a))
§ 303.123 Procedural safeguards.
Each system must include procedural
safeguards that meet the requirements of
subpart E of this part.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(13), 1439)
§ 303.124 Data collection.
(a) Each statewide system must
include a system for compiling and
reporting timely and accurate data that
meets the requirements in paragraph (b)
of this section and §§ 303.700 through
303.702 and 303.720 through 303.724. (b) The data system required in
paragraph (a) of this section must
include a description of the process that
the State uses, or will use, to compile
data on infants or toddlers with
disabilities receiving early intervention
services under this part, including a
description of the State’s sampling
methods, if sampling is used, for
reporting the data required by the
Secretary under sections 616 and 618 of
the Act and §§ 303.700 through 303.707
and 303.720 through 303.724.
(Approved by Office of Management and
Budget under control number 1820–0550,
1820–0557 and 1820–0578)
(Authority: 20 U.S.C. 1416, 1418(a)-(c),
1435(a)(14), 1442)
§ 303.125 State interagency coordinating
council.
Each system must include a State
Interagency Coordinating Council
(Council) that meets the requirements of
subpart G of this part.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(15))
§ 303.126 Early intervention services in
natural environments.
Each system must include policies
and procedures to ensure, consistent
with §§ 303.13(a)(8) (early intervention
services), 303.26 (natural
environments), and 303.344(d)(1)(ii)
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(content of an IFSP), that early
intervention services for infants and
toddlers with disabilities are provided—
(a) To the maximum extent
appropriate, in natural environments;
and
(b) In settings other than the natural
environment that are most appropriate,
as determined by the parent and the
IFSP Team, only when early
intervention services cannot be
achieved satisfactorily in a natural
environment.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(16))
Subpart C—State Application and
Assurances
General
§ 303.200 State application and
assurances.
Each application must contain—
(a) The specific State application
requirements (including certifications,
descriptions, methods, and policies and
procedures) required in §§ 303.201
through 303.212; and
(b) The assurances required in
§§ 303.221 through 303.227.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1437)
Application Requirements
§ 303.201 Designation of lead agency.
Each application must include the
name of the State lead agency, as
designated under § 303.120, that will be
responsible for the administration of
funds provided under this part.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1437(a)(1))
§ 303.202 Certification regarding financial
responsibility.
Each application must include a
certification to the Secretary that the
arrangements to establish financial
responsibility for the provision of part C
services among appropriate public
agencies under § 303.511 and the lead
agency’s contracts with EIS providers
regarding financial responsibility for the
provision of part C services both meet
the requirements in subpart F of this
part (§§ 303.500 through 303.521) and
are current as of the date of submission
of the certification.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1437(a)(2)) § 303.203 Statewide system and
description of services.
Each application must include —
(a) A description of services to be
provided under this part to infants and
toddlers with disabilities and their
families through the State’s system; (b) The State’s policies and
procedures regarding the identification
and coordination of all available
resources within the State from Federal,
State, local, and private sources as
required under subpart F of this part
and including— (1) Policies or procedures adopted by
the State as its system of payments that
meet the requirements in §§ 303.510,
303.520 and 303.521 (regarding the use
of public insurance or benefits, private
insurance, or family costs or fees); and (2) Methods used by the State to
implement the requirements in
§ 303.511(b)(2) and (b)(3); and (c) The State’s rigorous definition of
developmental delay as required under
§§ 303.10 and 303.111.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1432(3), 1432(4)(B),
1432(4)(C), 1435(a)(1), 1435(a)(10)(B),
1437(a)(3), 1440)
§ 303.204 Application’s definition of at-risk
infants and toddlers and description of
services.
If the State provides services under
this part to at-risk infants and toddlers
through the statewide system, the
application must include— (a) The State’s definition of at-risk
infants and toddlers with disabilities
who are eligible in the State for services
under part C of the Act (consistent with
§§ 303.5 and 303.21(b)); and (b) A description of the early
intervention services provided under
this part to at-risk infants and toddlers
with disabilities who meet the State’s
definition described in paragraph (a) of
this section.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1437(a)(4))
§ 303.205 Description of use of funds.
(a) General. Each State application
must include a description of the uses
for funds under this part for the fiscal
year or years covered by the application.
The description must be presented
separately for the lead agency and the
Council and include the information
required in paragraphs (b) through (e) of
this section. (b) State administration funds
including administrative positions. For
lead agencies other than State
educational agencies (SEAs), each
application must include the total— (1) Amount of funds retained by the
lead agency for administration
purposes, including the amount in
paragraph (b)(2) of this section; and (2) Number of full-time equivalent
administrative positions to be used to
implement part C of the Act, and the
total amount of salaries (including
benefits) for those positions. (c) Maintenance and implementation
activities. Each application must
include a description of the nature and
scope of each major activity to be
carried out under this part, consistent
with § 303.501, and the approximate
amount of funds to be spent for each
activity. (d) Direct services. Each application
must include a description of any direct
services that the State expects to
provide to infants and toddlers with
disabilities and their families with
funds under this part, consistent with
§ 303.501, and the approximate amount
of funds under this part to be used for
the provision of each direct service. (e) Activities by other public agencies.
If other public agencies are to receive
funds under this part, the application
must include— (1) The name of each agency expected
to receive funds; (2) The approximate amount of funds
each agency will receive; and (3) A summary of the purposes for
which the funds will be used.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(a)(10)(B),
1435(a)(10)(F), 1437(a)(3), 1437(a)(5))
§ 303.206 Referral policies for specific
children.
Each application must include the
State’s policies and procedures that
require the referral for early intervention
services under this part of specific
children under the age of three, as
described in § 303.303(b).
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1412(a)(3)(A), 1431,
1434(1), 1435(a)(2), 1435(a)(5), 1435(c)(2)(G),
1437(a)(6), 1437(a)(10), 1441)
§ 303.207 Availability of resources.
Each application must include a
description of the procedure used by the
State to ensure that resources are made
available under this part for all
geographic areas within the State.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1437(a)(7))
§ 303.208 Public participation policies and
procedures.
(a) Application. At least 60 days prior
to being submitted to the Department,
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each application for funds under this
part (including any policies, procedures,
descriptions, methods, certifications,
assurances and other information
required in the application) must be
published in a manner that will ensure
circulation throughout the State for at
least a 60-day period, with an
opportunity for public comment on the
application for at least 30 days during
that period.
(b) State Policies and Procedures.
Each application must include a
description of the policies and
procedures used by the State to ensure
that, before adopting any new policy or
procedure (including any revision to an
existing policy or procedure) needed to
comply with part C of the Act and these
regulations, the lead agency—
(1) Holds public hearings on the new
policy or procedure (including any
revision to an existing policy or
procedure);
(2) Provides notice of the hearings
held in accordance with paragraph
(b)(1) of this section at least 30 days
before the hearings are conducted to
enable public participation; and
(3) Provides an opportunity for the
general public, including individuals
with disabilities, parents of infants and
toddlers with disabilities, EIS providers,
and the members of the Council, to
comment for at least 30 days on the new
policy or procedure (including any
revision to an existing policy or
procedure) needed to comply with part
C of the Act and these regulations.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1231d, 1221e–3,
1437(a)(8))
§ 303.209 Transition to preschool and
other programs.
(a) Application requirements. Each
State must include the following in its
application:
(1) A description of the policies and
procedures it will use to ensure a
smooth transition for infants and
toddlers with disabilities under the age
of three and their families from
receiving early intervention services
under this part to—
(i) Preschool or other appropriate
services (for toddlers with disabilities);
or
(ii) Exiting the program for infants
and toddlers with disabilities.
(2) A description of how the State will
meet each of the requirements in
paragraphs (b) through (f) of this
section.
(3)(i)(A) If the lead agency is not the
SEA, an interagency agreement between
the lead agency and the SEA; or (B) If the lead agency is the SEA, an
intra-agency agreement between the
program within that agency that
administers part C of the Act and the
program within the agency that
administers section 619 of the Act.
(ii) To ensure a seamless transition
between services under this part and
under part B of the Act, an interagency
agreement under paragraph (a)(3)(i)(A)
of this section or an intra-agency
agreement under paragraph (a)(3)(i)(B)
of this section must address how the
lead agency and the SEA will meet the
requirements of paragraphs (b) through
(f) of this section (including any policies
adopted by the lead agency under
§ 303.401(d) and (e)), § 303.344(h), and
34 CFR 300.101(b), 300.124, 300.321(f),
and 300.323(b).
(4) Any policy the lead agency has
adopted under § 303.401(d) and (e).
(b) Notification to the SEA and
appropriate LEA. (1) The State lead
agency must ensure that—
(i) Subject to paragraph (b)(2) of this
section, not fewer than 90 days before
the third birthday of the toddler with a
disability if that toddler may be eligible
for preschool services under part B of
the Act, the lead agency notifies the
SEA and the LEA for the area in which
the toddler resides that the toddler on
his or her third birthday will reach the
age of eligibility for services under part
B of the Act, as determined in
accordance with State law;
(ii) Subject to paragraph (b)(2) of this
section, if the lead agency determines
that the toddler is eligible for early
intervention services under part C of the
Act more than 45 but less than 90 days
before that toddler’s third birthday and
if that toddler may be eligible for
preschool services under part B of the
Act, the lead agency, as soon as possible
after determining the child’s eligibility,
notifies the SEA and the LEA for the
area in which the toddler with a
disability resides that the toddler on his
or her third birthday will reach the age
of eligibility for services under part B of
the Act, as determined in accordance
with State law; or
(iii) Subject to paragraph (b)(2) of this
section, if a toddler is referred to the
lead agency fewer than 45 days before
that toddler’s third birthday and that
toddler may be eligible for preschool
services under part B of the Act, the
lead agency, with parental consent
required under § 303.414, refers the
toddler to the SEA and the LEA for the
area in which the toddler resides; but,
the lead agency is not required to
conduct an evaluation, assessment, or
an initial IFSP meeting under these
circumstances. (2) The State must ensure that the
notification required under paragraphs
(b)(1)(i) and (b)(1)(ii) of this section is
consistent with any policy that the State
has adopted, under § 303.401(e),
permitting a parent to object to
disclosure of personally identifiable
information. (c) Conference to discuss services. The
State lead agency must ensure that— (1) If a toddler with a disability may
be eligible for preschool services under
part B of the Act, the lead agency, with
the approval of the family of the toddler,
convenes a conference, among the lead
agency, the family, and the LEA not
fewer than 90 days—and, at the
discretion of all parties, not more than
9 months—before the toddler’s third
birthday to discuss any services the
toddler may receive under part B of the
Act; and. (2) If the lead agency determines that
a toddler with a disability is not
potentially eligible for preschool
services under part B of the Act, the
lead agency, with the approval of the
family of that toddler, makes reasonable
efforts to convene a conference among
the lead agency, the family, and
providers of other appropriate services
for the toddler to discuss appropriate
services that the toddler may receive. (d) Transition plan. The State lead
agency must ensure that for all toddlers
with disabilities— (1)(i) It reviews the program options
for the toddler with a disability for the
period from the toddler’s third birthday
through the remainder of the school
year; and (ii) Each family of a toddler with a
disability who is served under this part
is included in the development of the
transition plan required under this
section and § 303.344(h); (2) It establishes a transition plan in
the IFSP not fewer than 90 days—and,
at the discretion of all parties, not more
than 9 months—before the toddler’s
third birthday; and (3) The transition plan in the IFSP
includes, consistent with § 303.344(h),
as appropriate— (i) Steps for the toddler with a
disability and his or her family to exit
from the part C program; and (ii) Any transition services that the
IFSP Team identifies as needed by that
toddler and his or her family. (e) Transition conference and meeting
to develop transition plan. Any
conference conducted under paragraph
(c) of this section or meeting to develop
the transition plan under paragraph (d)
of this section (which conference and
meeting may be combined into one
meeting) must meet the requirements in
§§ 303.342(d) and (e) and 303.343(a).
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(f) Applicability of transition
requirements. (1) The transition
requirements in paragraphs (b)(1)(i) and
(b)(1)(ii), (c)(1), and (d) of this section
apply to all toddlers with disabilities
receiving services under this part before
those toddlers turn age three, including
any toddler with a disability under the
age of three who is served by a State that
offers services under § 303.211. (2) In a State that offers services under
§ 303.211, for toddlers with disabilities
identified in § 303.209(b)(1)(i), the
parent must be provided at the
transition conference conducted under
paragraph (c)(1) of this section: (i) An explanation, consistent with
§ 303.211(b)(1)(ii), of the toddler’s
options to continue to receive early
intervention services under this part or
preschool services under section 619 of
the Act. (ii) The initial annual notice
referenced in § 303.211(b)(1). (3) For children with disabilities age
three and older who receive services
pursuant to § 303.211, the State must
ensure that it satisfies the separate
transition requirements in
§ 303.211(b)(6)(ii).
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1412(a)(3) and (a)(9),
1436(a)(3), 1437(a)(9))
§ 303.210 Coordination with Head Start
and Early Head Start, early education, and
child care programs.
(a) Each application must contain a
description of State efforts to promote
collaboration among Head Start and
Early Head Start programs under the
Head Start Act (42 U.S.C. 9801, et seq.,
as amended), early education and child
care programs, and services under this
part.
(Approved by Office of Management and
Budget under control number 1820–0550)
(b) The State lead agency must
participate, consistent with section
642B(b)(1)(C)(viii) of the Head Start Act,
on the State Advisory Council on Early
Childhood Education and Care
established under the Head Start Act.
(Authority: 20 U.S.C. 1437(a)(10))
§ 303.211 State option to make services
under this part available to children ages
three and older.
(a) General. (1) Subject to paragraphs
(a)(2) and (b) of this section, a State may
elect to include in its application for a
grant under this part a State policy,
developed and implemented jointly by
the lead agency and the SEA, under
which a parent of a child with a
disability who is eligible for preschool
services under section 619 of the Act and who previously received early
intervention services under this part,
may choose the continuation of early
intervention services under this part for
his or her child after the child turns
three until the child enters, or is eligible
under State law to enter, kindergarten or
elementary school.
(2) A State that adopts the policy
described in paragraph (a)(1) of this
section may determine whether it
applies to children with disabilities— (i) From age three until the beginning
of the school year following the child’s
third birthday; (ii) From age three until the beginning
of the school year following the child’s
fourth birthday; or (iii) From age three until the
beginning of the school year following
the child’s fifth birthday. (3) In no case may a State provide
services under this section beyond the
age at which the child actually enters,
or is eligible under State law to enter,
kindergarten or elementary school in the
State. (b) Requirements. If a State’s
application for a grant under this part
includes the State policy described in
paragraph (a) of this section, the system
must ensure the following: (1) Parents of children with
disabilities who are eligible for services
under section 619 of the Act and who
previously received early intervention
services under this part will be provided
an annual notice that contains— (i) A description of the rights of the
parents to elect to receive services
pursuant to this section or under part B
of the Act; and (ii) An explanation of the differences
between services provided pursuant to
this section and services provided under
part B of the Act, including— (A) The types of services and the
locations at which the services are
provided; (B) The procedural safeguards that
apply; and (C) Possible costs (including the costs
or fees to be charged to families as
described in §§ 303.520 and 303.521), if
any, to parents of children eligible
under this part. (2) Consistent with § 303.344(d),
services provided pursuant to this
section will include an educational
component that promotes school
readiness and incorporates preliteracy,
language, and numeracy skills. (3) The State policy ensures that any
child served pursuant to this section has
the right, at any time, to receive FAPE
(as that term is defined at § 303.15)
under part B of the Act instead of early
intervention services under part C of the
Act. (4) The lead agency must continue to
provide all early intervention services
identified in the toddler with a
disability’s IFSP under § 303.344 (and
consented to by the parent under
§ 303.342(e)) beyond age three until that
toddler’s initial eligibility determination
under part B of the Act is made under
34 CFR 300.306. This provision does not
apply if the LEA has requested parental
consent for the initial evaluation under
34 CFR 300.300(a) and the parent has
not provided that consent. (5) The lead agency must obtain
informed consent from the parent of any
child with a disability for the
continuation of early intervention
services pursuant to this section for that
child. Consent must be obtained before
the child reaches three years of age,
where practicable. (6)(i) For toddlers with disabilities
under the age of three in a State that
offers services under this section, the
lead agency ensures that the transition
requirements in § 303.209(b)(1)(i) and
(b)(1)(ii), (c)(1), and (d) are met. (ii) For toddlers with disabilities age
three and older in a State that offers
services under this section, the lead
agency ensures a smooth transition from
services under this section to preschool,
kindergarten or elementary school by— (A) Providing the SEA and LEA where
the child resides, consistent with any
State policy adopted under § 303.401(e),
the information listed in § 303.401(d)(1)
not fewer than 90 days before the child
will no longer be eligible under
paragraph (a)(2) of this section to
receive, or will no longer receive, early
intervention services under this section; (B) With the approval of the parents
of the child, convening a transition
conference, among the lead agency, the
parents, and the LEA, not fewer than
90 days—and, at the discretion of all
parties, not more than 9 months—before
the child will no longer be eligible
under paragraph (a)(2) of this section to
receive, or no longer receives, early
intervention services under this section,
to discuss any services that the child
may receive under part B of the Act; and (C) Establishing a transition plan in
the IFSP not fewer than 90 days—and,
at the discretion of all parties, not more
than 9 months—before the child will no
longer be eligible under paragraph (a)(2)
of this section to receive, or no longer
receives, early intervention services
under this section. (7) In States that adopt the option to
make services under this part available
to children ages three and older
pursuant to this section, there will be a
referral to the part C system, dependent
upon parental consent, of a child under
the age of three who directly
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experiences a substantiated case of
trauma due to exposure to family
violence, as defined in section 320 of
the Family Violence Prevention and
Services Act, 42 U.S.C. 10401, et seq.
(c) Reporting requirement. If a State
includes in its application a State policy
described in paragraph (a) of this
section, the State must submit to the
Secretary, in the State’s report under
§ 303.124, the number and percentage of
children with disabilities who are
eligible for services under section 619 of
the Act but whose parents choose for
their children to continue to receive
early intervention services under this
part. (d) Available funds. The State policy
described in paragraph (a) of this
section must describe the funds—
including an identification as Federal,
State, or local funds—that will be used
to ensure that the option described in
paragraph (a) of this section is available
to eligible children and families who
provide the consent described in
paragraph (b)(5) of this section,
including fees, if any, to be charged to
families as described in §§ 303.520 and
303.521. (e) Rules of construction. (1) If a
statewide system includes a State policy
described in paragraph (a) of this
section, a State that provides services in
accordance with this section to a child
with a disability who is eligible for
services under section 619 of the Act
will not be required to provide the child
FAPE under part B of the Act for the
period of time in which the child is
receiving services under this part. (2) Nothing in this section may be
construed to require a provider of
services under this part to provide a
child served under this part with FAPE.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1435(c), 1437(a)(11))
§ 303.212 Additional information and
assurances.
Each application must contain—
(a) A description of the steps the State
is taking to ensure equitable access to,
and equitable participation in, the part
C statewide system as required by
section 427(b) of GEPA; and (b) Other information and assurances
as the Secretary may reasonably require.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1228a(b), 1437(a)(11))
Assurances
§ 303.220 Assurances satisfactory to the
Secretary.
Each application must contain
assurances satisfactory to the Secretary that the State has met the requirements
in §§ 303.221 through 303.227.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1437(b))
§ 303.221 Expenditure of funds.
The State must ensure that Federal
funds made available to the State under
section 643 of the Act will be expended
in accordance with the provisions of
this part, including §§ 303.500 and
303.501.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1437(b)(1))
§ 303.222 Payor of last resort.
The State must ensure that it will
comply with the requirements in
§§ 303.510 and 303.511 in subpart F of
this part.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1437(b)(2))
§ 303.223 Control of funds and property.
The State must ensure that—
(a) The control of funds provided
under this part, and title to property
acquired with those funds, will be in a
public agency for the uses and purposes
provided in this part; and
(b) A public agency will administer
the funds and property.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1437(b)(3))
§ 303.224 Reports and records.
The State must ensure that it will—
(a) Make reports in the form and
containing the information that the
Secretary may require; and
(b) Keep records and afford access to
those records as the Secretary may find
necessary to ensure compliance with the
requirements of this part, the
correctness and verification of reports,
and the proper disbursement of funds
provided under this part.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1437(b)(4))
§ 303.225 Prohibition against supplanting;
indirect costs.
(a) Each application must provide
satisfactory assurance that the Federal
funds made available under section 643
of the Act to the State:
(1) Will not be commingled with State
funds; and
(2) Will be used so as to supplement
the level of State and local funds
expended for infants and toddlers with
disabilities and their families and in no case to supplant those State and local
funds.
(b) To meet the requirement in
paragraph (a) of this section, the total
amount of State and local funds
budgeted for expenditures in the current
fiscal year for early intervention services
for children eligible under this part and
their families must be at least equal to
the total amount of State and local funds
actually expended for early intervention
services for these children and their
families in the most recent preceding
fiscal year for which the information is
available. Allowance may be made for— (1) A decrease in the number of
infants and toddlers who are eligible to
receive early intervention services
under this part; and (2)) Unusually large amounts of funds
expended for such long-term purposes
as the acquisition of equipment and the
construction of facilities. (c) Requirement regarding indirect
costs. (1) Except as provided in
paragraph (c)(2) of this section, a lead
agency under this part may not charge
indirect costs to its part C grant. (2) If approved by the lead agency’s
cognizant Federal agency or by the
Secretary, the lead agency must charge
indirect costs through either— (i) A restricted indirect cost rate that
meets the requirements in 34 CFR
76.560 through 76.569; or (ii) A cost allocation plan that meets
the non-supplanting requirements in
paragraph (b) of this section and 34 CFR
part 76 of EDGAR. (3) In charging indirect costs under
paragraph (c)(2)(i) and (c)(2)(ii) of this
section, the lead agency may not charge
rent, occupancy, or space maintenance
costs directly to the part C grant, unless
those costs are specifically approved in
advance by the Secretary.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1437(b)(5))
§ 303.226 Fiscal control.
The State must ensure that fiscal
control and fund accounting procedures
will be adopted as necessary to ensure
proper disbursement of, and accounting
for, Federal funds paid under this part.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1437(b)(6))
§ 303.227 Traditionally underserved
groups.
The State must ensure that policies
and practices have been adopted to
ensure— (a) That traditionally underserved
groups, including minority, low-income,
homeless, and rural families and
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children with disabilities who are wards
of the State, are meaningfully involved
in the planning and implementation of
all the requirements of this part; and
(b) That these families have access to
culturally competent services within
their local geographical areas.
(Approved by Office of Management and
Budget under control number 1820–0550)
(Authority: 20 U.S.C. 1231d, 1437(b)(7))
Subsequent Applications and
Modifications, Eligibility
Determinations, and Standard of
Disapproval
§ 303.228 Subsequent State application
and modifications of application.
(a) Subsequent State application. If a
State has on file with the Secretary a
policy, procedure, method, or assurance
that demonstrates that the State meets
an application requirement in this part,
including any policy, procedure,
method, or assurance filed under this
part (as in effect before the date of
enactment of the Act, December 3,
2004), the Secretary considers the State
to have met that requirement for
purposes of receiving a grant under this
part.
(b) Modification of application. An
application submitted by a State that
meets the requirements of this part
remains in effect until the State submits
to the Secretary such modifications as
the State determines necessary. This
section applies to a modification of an
application to the same extent and in
the same manner as this paragraph
applies to the original application.
(c) Modifications required by the
Secretary. The Secretary may require a
State to modify its application under
this part to the extent necessary to
ensure the State’s compliance with this
part if—
(1) An amendment is made to the Act
or to a Federal regulation issued under
the Act;
(2) A new interpretation of the Act is
made by a Federal court or the State’s
highest court; or
(3) An official finding of
noncompliance with Federal law or
regulations is made with respect to the
State.
(Authority: 20 U.S.C. 1437(d)–(f))
§ 303.229 Determination by the Secretary
that a State is eligible.
If the Secretary determines that a
State is eligible to receive a grant under
part C of the Act, the Secretary notifies
the State of that determination.
(Authority: 20 U.S.C. 1437) § 303.230 Standard for disapproval of an
application.
The Secretary does not disapprove an
application under this part unless the
Secretary determines, after notice and
opportunity for a hearing in accordance
with the procedures in §§ 303.231
through 303.236, that the application
fails to comply with the requirements of
this part.
(Authority: 20 U.S.C. 1437(c))
Department Procedures
§ 303.231 Notice and hearing before
determining that a State is not eligible.
(a) General. (1) The Secretary does not
make a final determination that a State
is not eligible to receive a grant under
part C of the Act until providing the
State— (i) Reasonable notice; and
(ii) An opportunity for a hearing.
(2) In implementing paragraph
(a)(1)(i) of this section, the Secretary
sends a written notice to the lead agency
by certified mail with a return receipt
requested. (b) Content of notice. In the written
notice described in paragraph (a)(2) of
this section, the Secretary— (1) States the basis on which the
Secretary proposes to make a final
determination that the State is not
eligible; (2) May describe possible options for
resolving the issues; (3) Advises the lead agency that it
may request a hearing and that the
request for a hearing must be made not
later than 30 days after it receives the
notice of the proposed final
determination that the State is not
eligible; and (4) Provides the lead agency with
information about the hearing
procedures that will be followed.
(Authority: 20 U.S.C. 1437(c))
§ 303.232 Hearing Official or Panel.
(a) If the lead agency requests a
hearing, the Secretary designates one or
more individuals, either from the
Department or elsewhere, not
responsible for or connected with the
administration of this program, to
conduct a hearing. (b) If more than one individual is
designated, the Secretary designates one
of those individuals as the Chief
Hearing Official of the Hearing Panel. If
one individual is designated, that
individual is the Hearing Official.
(Authority: 20 U.S.C. 1437(c))
§ 303.233 Hearing procedures.
(a) As used in §§ 303.231 through
303.235, the term party or parties means
any of the following: (1) A lead agency that requests a
hearing regarding the proposed
disapproval of the State’s eligibility
under this part.
(2) The Department official who
administers the program of financial
assistance under this part.
(3) A person, group, or agency with an
interest in, and having relevant
information about, the case that has
applied for and been granted leave to
intervene by the Hearing Official or
Hearing Panel.
(b) Within 15 days after receiving a
request for a hearing, the Secretary
designates a Hearing Official or Hearing
Panel and notifies the parties.
(c) The Hearing Official or Hearing
Panel may regulate the course of
proceedings and the conduct of the
parties during the proceedings. The
Hearing Official or Panel takes all steps
necessary to conduct a fair and
impartial proceeding, to avoid delay,
and to maintain order, including the
following:
(1) The Hearing Official or Hearing
Panel may hold conferences or other
types of appropriate proceedings to
clarify, simplify, or define the issues or
to consider other matters that may aid
in the disposition of the case.
(2) The Hearing Official or Hearing
Panel may schedule a prehearing
conference with the Hearing Official or
Hearing Panel and the parties.
(3) Any party may request the Hearing
Official or Hearing Panel to schedule a
prehearing or other conference. The
Hearing Official or Hearing Panel
decides whether a conference is
necessary and notifies all parties.
(4) At a prehearing or other
conference, the Hearing Official or
Hearing Panel and the parties may
consider subjects such as—
(i) Narrowing and clarifying issues;
(ii) Assisting the parties in reaching
agreements and stipulations;
(iii) Clarifying the positions of the
parties;
(iv) Determining whether an
evidentiary hearing or oral argument
should be held; and
(v) Setting dates for—
(A) The exchange of written
documents;
(B) The receipt of comments from the
parties on the need for oral argument or
an evidentiary hearing;
(C) Further proceedings before the
Hearing Official or Hearing Panel,
including an evidentiary hearing or oral
argument, if either is scheduled;
(D) Requesting the names of witnesses
each party wishes to present at an
evidentiary hearing and an estimation of
time for each presentation; and
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(E) Completion of the review and the
initial decision of the Hearing Official or
Hearing Panel. (5) A prehearing or other conference
held under paragraph (c)(4) of this
section may be conducted by telephone
conference call. (6) At a prehearing or other
conference, the parties must be prepared
to discuss the subjects listed in
paragraph (c)(4) of this section. (7) Following a prehearing or other
conference, the Hearing Official or
Hearing Panel may issue a written
statement describing the issues raised,
the action taken, and the stipulations
and agreements reached by the parties. (d) The Hearing Official or Hearing
Panel may require the parties to state
their positions and to provide all or part
of their evidence in writing. (e) The Hearing Official or Hearing
Panel may require the parties to present
testimony through affidavits and to
conduct cross-examination through
interrogatories. (f) The Hearing Official or Hearing
Panel may direct the parties to exchange
relevant documents, information, and
lists of witnesses, and to send copies to
the Hearing Official or Hearing Panel. (g) The Hearing Official or Hearing
Panel may receive, rule on, exclude, or
limit evidence at any stage of the
proceedings. (h) The Hearing Official or Hearing
Panel may rule on motions and other
issues at any stage of the proceedings. (i) The Hearing Official or Hearing
Panel may examine witnesses. (j) The Hearing Official or Hearing
Panel may set reasonable time limits for
submission of written documents. (k) The Hearing Official or Hearing
Panel may refuse to consider documents
or other submissions if they are not
submitted in a timely manner unless
good cause is shown. (l) The Hearing Official or Hearing
Panel may interpret applicable statutes
and regulations but may not waive them
or rule on their validity. (m)(1) The parties must present their
positions through briefs and the
submission of other documents and may
request an oral argument or evidentiary
hearing. The Hearing Official or Hearing
Panel must determine whether an oral
argument or an evidentiary hearing is
needed to clarify the positions of the
parties. (2) The Hearing Official or Hearing
Panel gives each party an opportunity to
be represented by counsel. (n) If the Hearing Official or Hearing
Panel determines that an evidentiary
hearing would materially assist the
resolution of the matter, the Hearing
Official or Hearing Panel gives each party, in addition to the opportunity to
be represented by counsel—
(1) An opportunity to present
witnesses on the party’s behalf; and (2) An opportunity to cross-examine
witnesses either orally or with written
questions. (o) The Hearing Official or Hearing
Panel accepts any evidence that it finds
is relevant and material to the
proceedings and is not unduly
repetitious. (p)(1) The Hearing Official or Hearing
Panel— (i) Arranges for the preparation of a
transcript of each hearing; (ii) Retains the original transcript as
part of the record of the hearing; and (iii) Provides one copy of the
transcript to each party. (2) Additional copies of the transcript
are available on request and with
payment of the reproduction fee. (q) Each party must file with the
Hearing Official or Hearing Panel all
written motions, briefs, and other
documents and must at the same time
provide a copy to the other parties to the
proceedings.
(Authority: 20 U.S.C. 1437(c))
§ 303.234 Initial decision; final decision.
(a) The Hearing Official or Hearing
Panel prepares an initial written
decision that addresses each of the
points in the notice sent by the
Secretary to the lead agency under
§ 303.231, including any amendments to
or further clarification of the issues
under § 303.233(c). (b) The initial decision of a Hearing
Panel is made by a majority of Hearing
Panel members. (c) The Hearing Official or Hearing
Panel mails, by certified mail with
return receipt requested, a copy of the
initial decision to each party (or to the
party’s counsel) and to the Secretary,
with a notice stating that each party has
an opportunity to submit written
comments regarding the decision to the
Secretary. (d) Each party may file comments and
recommendations on the initial decision
with the Hearing Official or Hearing
Panel within 15 days of the date the
party receives the Panel’s decision. (e) The Hearing Official or Hearing
Panel sends a copy of a party’s initial
comments and recommendations to the
other parties by certified mail with
return receipt requested. Each party may
file responsive comments and
recommendations with the Hearing
Official or Hearing Panel within seven
days of the date the party receives the
initial comments and recommendations. (f) The Hearing Official or Hearing
Panel forwards the parties’ initial and responsive comments on the initial
decision to the Secretary who reviews
the initial decision and issues a final
decision.
(g) The initial decision of the Hearing
Official or Hearing Panel becomes the
final decision of the Secretary unless,
within 25 days after the end of the time
for receipt of written comments, the
Secretary informs the Hearing Official or
Hearing Panel and the parties to a
hearing in writing that the decision is
being further reviewed for possible
modification.
(h) The Secretary rejects or modifies
the initial decision of the Hearing
Official or Hearing Panel if the Secretary
finds that it is clearly erroneous.
(i) The Secretary conducts the review
based on the initial decision, the written
record, the transcript of the Hearing
Official’s or Hearing Panel’s
proceedings, and written comments.
(j) The Secretary may remand the
matter to the Hearing Official or Hearing
Panel for further proceedings.
(k) Unless the Secretary remands the
matter as provided in paragraph (j) of
this section, the Secretary issues the
final decision, with any necessary
modifications, within 30 days after
notifying the Hearing Official or Hearing
Panel that the initial decision is being
further reviewed.
(Authority: 20 U.S.C. 1437(c))
§ 303.235 Filing requirements.
(a) Any written submission by a party
under §§ 303.230 through 303.236 must
be filed with the Secretary by hand-
delivery, by mail, or by facsimile
transmission. The Secretary discourages
the use of facsimile transmission for
documents longer than five pages.
(b) The filing date under paragraph (a)
of this section is the date the document
is—
(1) Hand-delivered;
(2) Mailed; or
(3) Sent by facsimile transmission.
(c) A party filing by facsimile
transmission is responsible for
confirming that a complete and legible
copy of the document was received by
the Department.
(d) If a document is filed by facsimile
transmission, the Secretary, the Hearing
Official, or the Panel, as applicable, may
require the filing of a follow-up hard
copy by hand-delivery or by mail within
a reasonable period of time.
(e) If agreed upon by the parties,
service of a document may be made
upon the other party by facsimile
transmission.
(Authority: 20 U.S.C. 1437(c))
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60261 Federal Register/ Vol. 76, No. 188 / Wednesday, September 28, 2011 / Rules and Regulations
§ 303.236 Judicial review.
If a State is dissatisfied with the
Secretary’s final decision with respect to
the eligibility of the State under part C
of the Act, the State may, not later than
60 days after notice of that decision, file
with the United States Court of Appeals
for the circuit in which that State is
located a petition for review of that
decision. A copy of the petition must be
transmitted by the clerk of the court to
the Secretary. The Secretary then files in
the court the record of the proceedings
upon which the Secretary’s action was
based, as provided in 28 U.S.C. 2112.
(Authority: 20 U.S.C. 1437(c))
Subpart D—Child Find, Evaluations
and Assessments, and Individualized
Family Service Plans
§ 303.300 General.
The statewide comprehensive,
coordinated, multidisciplinary
interagency system to provide early
intervention services for infants and
toddlers with disabilities and their
families referenced in § 303.100 must
include the following components: (a) Pre-referral policies and
procedures that include— (1) A public awareness program as
described in § 303.301; and (2) A comprehensive child find
system as described in § 303.302. (b) Referral policies and procedures as
described in § 303.303. (c) Post-referral policies and
procedures that ensure compliance with
the timeline requirements in § 303.310
and include— (1) Screening, if applicable, as
described in § 303.320; (2) Evaluations and assessments as
described in §§ 303.321 and 303.322;
and (3) Development, review, and
implementation of IFSPs as described in
§§ 303.340 through 303.346.
Pre-Referral Procedures—Public
Awareness Program and Child Find
System
§ 303.301 Public awareness program—
information for parents.
(a) Preparation and dissemination. In
accordance with § 303.116, each system
must include a public awareness
program that requires the lead agency
to— (1)(i) Prepare information on the
availability of early intervention
services under this part, and other
services, as described in paragraph (b) of
this section; and (ii) Disseminate to all primary referral
sources (especially hospitals and
physicians) the information to be given to parents of infants and toddlers,
especially parents with premature
infants or infants with other physical
risk factors associated with learning or
developmental complications; and
(2) Adopt procedures for assisting the
primary referral sources described in
§ 303.303(c) in disseminating the
information described in paragraph (b)
of this section to parents of infants and
toddlers with disabilities. (b) Information to be provided. The
information required to be prepared and
disseminated under paragraph (a) of this
section must include— (1) A description of the availability of
early intervention services under this
part; (2) A description of the child find
system and how to refer a child under
the age of three for an evaluation or
early intervention services; and (3) A central directory, as described in
§ 303.117. (c) Information specific to toddlers
with disabilities. Each public awareness
program also must include a
requirement that the lead agency
provide for informing parents of
toddlers with disabilities of the
availability of services under section
619 of the Act not fewer than 90 days
prior to the toddler’s third birthday.
(Authority: 20 U.S.C. 1435(a)(6), 1437(a)(9))
§ 303.302 Comprehensive child find
system.
(a) General. Each system must include
a comprehensive child find system
that— (1) Is consistent with part B of the Act
(see 34 CFR 300.111); (2) Includes a system for making
referrals to lead agencies or EIS
providers under this part that— (i) Includes timelines; and
(ii) Provides for participation by the
primary referral sources described in
§ 303.303(c); (3) Ensures rig