[Federal Register: September 5, 2000 (Volume 65, Number 172)]
[Proposed Rules]
[Page 53807-53869]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05se00-51]
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Part II
Department of Education
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34 CFR Part 303
Early Intervention Program for Infants and Toddlers With Disabilities;
Proposed Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 303
RIN 1820-AB53
Early Intervention Program for Infants and Toddlers With
Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend the regulations governing the
Early Intervention Program for Infants and Toddlers With Disabilities
under Part C of the Individuals with Disabilities Education Act (IDEA).
These amendments are needed to provide clarification and guidance
regarding the provision of early intervention services in ``natural
environments;'' to revise the provisions on State financing of early
intervention services (including adding provisions to address the use
of public and private insurance by States); and to make other changes
designed to improve the understanding and implementation of the
regulations under this part.
DATES: We must receive your comments on or before December 4, 2000.
ADDRESSES: Address all comments about these proposed regulations to
Thomas B. Irvin, Office of Special Education and Rehabilitative
Services, U.S. Department of Education, Room 3090, Mary E. Switzer
Building, 330 C Street, SW., Washington, DC 20202-2570.
If you prefer to send your comments through the Internet, use the
following address: Comments@ed.gov
You must use the term ``IDEA--Part C regulations'' in the subject
line of your electronic message.
FOR FURTHER INFORMATION CONTACT: JoLeta Reynolds or Thomas B. Irvin
(202) 205-5507. If you use a telecommunication device for the deaf
(TDD), you may call the TDD number at (202) 205-5465.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to Katie Mincey, Director of the Alternate Formats
Center. Telephone: (202) 205-8113.
SUPPLEMENTARY INFORMATION:
Invitation to Comment
We invite you to submit comments and recommendations regarding the
specific provisions in this notice of proposed rulemaking (NPRM) to
which we are proposing to make changes to the existing regulations for
part 303, including proposed changes relating to:
(1) Natural environments (i.e., proposed Sec. 303.341, and changes
to Secs. 303.12(b), 303.18, 303.167(c); and 303.344(d), and other
changes identified in the discussion of changes on natural environments
later in this preamble);
(2) State financing of early intervention services and the use of
insurance (i.e., proposed Sec. 303.519, and changes to Secs. 303.520
and 303.521); and
(3) Other areas, including--
* The provisions on service coordination (i.e.,
Secs. 303.12(d)(11), 303.23, and a new 303.302);
* The two-day timeline provision in the child find
requirements (i.e., Sec. 303.321(d)(2)(ii));
* Individualized family service plans (IFSPs), to--(1)
include under proposed Sec. 303.342(a)(2), a provision on special
considerations (similar to the Part B requirement in 34 CFR
300.346(a)(2)); and (2) to further clarify (under 303.343(a)(2)) how
evaluation results will be interpreted at an IFSP meeting if the person
or persons conducting the evaluations and assessments is unable to be
present at the meeting;
* The ``pendency'' provision under Sec. 303.425, to clarify
that the provision does not apply if a child is transitioning from Part
C services to preschool or other services; and
* Transition to preschool or other appropriate services
under Secs. 303.148 and 303.344(h), to make clarifying changes
regarding those provisions.
A description of each of these changes and other proposed
substantive changes is included later in this preamble. In addition,
``Attachment 1'' to this NPRM includes a consolidated list, by subpart
and section, of the proposed revisions to be made to the existing
regulations, except for minor technical changes (e.g., correcting
typos, making simple word changes, and other similar changes).
The majority of the requirements in part 303 (nearly two-thirds of
all sections in the existing regulations) are not being revised by this
NPRM, and would remain unchanged at the end of this rulemaking process.
However, although we are proposing to amend a relatively small number
of requirements in these regulations, we are sensitive to the
difficulties readers face if the NPRM shows only the amended language
and not the entire regulation. Thus, to accommodate readers in
understanding these proposed changes, we have elected to publish the
full text of the regulations, as it would be if amended, rather than
simply publishing an amendatory document that shows only the proposed
changes. While this approach increases the length of this NPRM, it
provides a more meaningful way for parents, public agencies, service
providers, and the general public to review the changes within the
context of the existing regulations.
In providing this accommodation, however, we are asking that
comments submitted on this NPRM be limited only to the provisions in
the existing regulations to which we are proposing to make substantive
changes, including the provisions identified earlier in this preamble.
To ensure that comments have the maximum effect in developing the
final regulations, we encourage you to identify clearly the specific
subpart, section, and paragraph of the proposed regulations that each
comment addresses, and to arrange the comments in the same order that
the proposed changes appear in the text of this NPRM.
We also invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these proposed
regulatory changes. Please let us know of any further opportunities we
should take to reduce potential costs or increase potential benefits
while preserving the effective and efficient administration of the
program. Again, however, please limit your comments to the changes we
have proposed to the existing regulations.
During and after the comment period, you may inspect all public
comments about this proposed regulation in Room 3090, Mary E. Switzer
Building, 330 C Street SW., Washington, DC, between the hours of 8:30
a.m. and 4 p.m., Eastern time, Monday through Friday of each week
except Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for this proposed regulation. If you want to schedule
an appointment for this type of aid, you may call (202) 205-8113 or
(202) 260-9895. If you use a TDD, you may call the Federal Information
Relay Service at 1-800-877-8339.
Background
On April 14, 1998, the Secretary published in the Federal Register
(63 FR 18290) final regulations governing ``Part H'' of the IDEA, the
Early Intervention Program for Infants and Toddlers with Disabilities
(34 CFR part 303). Those final regulations revised
[[Page 53809]]
part 303 to incorporate the statutory amendments to Part H that were
added by the IDEA Amendments of 1997, including new provisions relating
to mediation, natural environments, payor of last resort, personnel
standards, and State interagency coordinating councils. These
regulations became effective on July 1, 1998, and at that time the Part
H program was renamed ``Part C,'' consistent with the IDEA Amendments
of 1997.
On March 12, 1999, with the publication of final regulations for
Part B of IDEA (34 CFR part 300), the regulations under part 303 were
further revised to make conforming amendments to the definition of
``parent'' in Sec. 303.19, the State complaint procedures in
Secs. 303.510-303.512, and the use of proceeds from public or private
insurance in Sec. 303.520(d).
Except for those technical and conforming amendments made to part
303 in 1998 and 1999, these regulations have not been amended since
1993, when they were revised to implement the IDEA Amendments of 1991
(Pub. L. 102-119) and make certain other changes. Moreover, many
provisions in part 303 have remained in effect since the initial
regulations for the ``Part H program'' were published in 1989.
In many respects, the regulations for the Part C program have
provided, over an extended period of time, an effective blueprint for
States to follow in developing and maintaining a statewide system of
early intervention services for infants and toddlers with disabilities
and their families. However, based on the Department's experience in
administering the Part C program, especially in recent years, it has
become clear that changes are needed in certain key requirements in
part 303, as described earlier in this preamble under the ``Invitation
to Comment.''
The need for making the proposed changes in this NPRM has become
increasingly apparent in recent years, based on (1) the kinds of
questions we have received from parents and public agency staff about
problems they are facing with the Part C program; (2) the policy
guidance we have provided to States; and (3) the findings we have made
in monitoring State implementation of the Part C program.
In addition, as a follow-up to the Department's recognized need to
amend selected provisions in the existing regulations for part 303, the
Secretary published (in the same April 14, 1998 issue of the Federal
Register (63 FR 18297) described earlier in this preamble) a notice
soliciting advice and recommendations from the public as to whether
additional revisions are needed to implement the requirements added by
the IDEA Amendments of 1997, and on whether to develop new regulations
in areas that were not affected by the statutory amendments. On August
14, 1998, the Secretary published another notice in the Federal
Register, extending the period for submitting comments until the 30th
day following publication of the final regulations for Part B of IDEA
(i.e., April 12, 1999).
By the end of the comment period, 328 comments were received in
response to the Federal Register notices, including letters from
parents and grandparents, several State lead agencies and interagency
coordinating councils, early intervention service providers, and
parent-advocate and professional associations.
The comments addressed a wide range of provisions in the current
regulations, but focused mainly on natural environments; finance
issues, resources, and insurance; individualized family service plans
(IFSPs); personnel standards; procedural safeguards; and transition to
preschool programs.
The comments submitted in response to the two Federal Register
notices were carefully reviewed and considered in developing this NPRM.
We appreciate the thoughtful attention of the commenters in responding
to these notices.
Taken as a whole, the comments validated the need for the
Department to publish a notice of proposed rulemaking (NPRM) on
selected provisions in the Part C regulations.
The following describes the proposed changes to the regulations on
natural environments, followed by a description of other proposed
regulatory changes by subpart and section, including proposed changes
regarding the financing of early intervention services, described under
Secs. 303.519-303.521 of Subpart F.
Natural Environments
We are proposing to make clarifying changes to the provisions on
``natural environments'' in the existing regulations, in order to more
accurately reflect the Department's long-standing policy interpretation
regarding these provisions, and to provide more definitive guidance on
their implementation than is included in the current regulations.
The provisions on natural environments are included in four
sections of the current regulations, as follows: First, in the
definition of early intervention services under Sec. 303.12(b), which
states that, to the maximum extent appropriate to the needs of the
child, early intervention services must be provided in natural
environments, including the home and community settings in which
children without disabilities participate. Second, a definition of
``natural environments'' is included in Sec. 303.18 (i.e., the term
``means settings that are natural or normal for the child's age peers
who have no disabilities'').
Third, the State application requirements on IFSPs in Sec. 303.167
of the current regulations include, under paragraph (c) of that
section, a statutory provision that requires policies and procedures on
natural environments. Finally, the ``Content of IFSP'' requirements in
Sec. 303.344 require, under paragraph (d) of that section, that the
IFSP include a statement of the specific early intervention services
necessary to meet the unique needs of the child and the family,
including-- ``(iii) The natural environments, as described in
Secs. 303.12(b) and 303.18, in which early intervention services will
be provided, and a justification of the extent, if any, to which the
services will not be provided in a natural environment.''
Based on the public comments we received about natural
environments, as well as other concerns and questions raised with the
Department in recent years, it is clear that there is some
misunderstanding about the meaning of ``natural environments,'' and how
those provisions are to be implemented.
The changes that we are proposing to make to the natural
environment provisions do not impose major new substantive
requirements. Instead, in contrast to the current regulations, they
focus more fully on a basic theme inherent in the Part C program--the
individualization of decisions, through the IFSP process, in
determining--(1) what specific early intervention services a child
needs, and (2) the setting or settings in which those services will be
provided. Virtually all major changes on natural environments that are
proposed in this NPRM are directed at giving greater emphasis to that
theme than the current regulations reflect.
The concept of individualization through the IFSP process is
consistent with the Part C regulatory history on natural environments.
For example, the concept was addressed in the ``Analysis of Comments
and Changes'' in the 1993 final Part H regulations, in which commenters
had requested clarification and examples of when a child must be served
in a natural environment. The response to those comments is included in
the following paragraph:
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Discussion: The Secretary believes that no further guidance is
appropriate at this time. Decisions on the early intervention
services to a child and his or her family, including decisions on
the location of service delivery, are made in the development of the
individualized family service plan described in Secs. 303.340-
303.346. The Secretary contemplates that the range of available
options will be reviewed at the IFSP meeting described in
Sec. 303.342, in which the parents are full participants. With
respect to the comment on center-based services, the Secretary
emphasizes that decisions on the location of service delivery must
be made on an individualized basis in accordance with the needs of
the child and the family. See Sec. 303.344(d). (58 FR 40982, July
30, 1993).
The basic thrust of the natural environments provisions in the
statute and regulations is that, to the maximum extent appropriate,
early intervention services are provided in the home of each eligible
child, or in community settings in which children without disabilities
participate. The basic principle underlying this requirement is that
being in integrated settings with their nondisabled peers will enhance
the development of eligible children under this part. It also prepares
the child and family, if the child is ``Part B--eligible,'' for the
experience of receiving services in the least restrictive environment.
For a child who is not eligible for Part B services and may
automatically be integrated in school and in life with nondisabled
peers, the child and family would likewise be prepared. Thus, this
provision ensures that eligible children under this part will be in
community settings with their nondisabled peers--including receiving
early intervention services in those settings--to the extent
appropriate.
However, the IDEA Amendments of 1997 added the following new
provisions, which make it clear that exceptions are anticipated, and
that the provision of services in settings other than natural
environments may be necessary under certain conditions:
* Section 635(a)(16)(B) requires each State to have policies
and procedures to ensure that--``The provision of early intervention
services for any infant or toddler occurs in a setting other than a
natural environment only if early intervention cannot be achieved
satisfactorily for the infant or toddler in a natural environment;''
(Emphasis added).
* Section 635(d)(5) provides that the IFSP must include a
statement of ``The natural environments * * * in which early
intervention services will be provided, and a justification of the
extent, if any, to which the services will not be provided in a natural
environment.'' (Emphasis added)
Thus, while ``natural environments'' are the legally preferred
settings for providing early intervention services, it would be
appropriate, under Part C of the Act and these regulations, for a given
child to receive one or more of the early intervention services in
another setting, if the child's IFSP team, after reviewing the relevant
information about the child, makes that determination.
Proposed Changes to Natural Environments Provisions
The following are changes that we are proposing to make to the
natural environments provisions in the current regulations:
We are proposing to amend the definition of ``natural
environments'' in Sec. 303.18, by--(1) making technical changes,
including designating the current definition as Sec. 303.18(a), and (2)
incorporating, as new Sec. 303.18(b), the substance of the provision on
natural environments from Sec. 303.12(b) of the existing regulations.
This proposed change would include, in one place, the full text of the
definition of ``natural environments'' rather than having the
provisions divided among two separate sections under Subpart A of the
current regulations (i.e., Secs. 303.12(b) and 303.18).
In addition, consistent with the Part C theme of individualized
decisions by IFSP teams, we are proposing to amend the corresponding
regulations on natural environments to include, under the IFSP
requirements in Subpart D, all substantive provisions related to
natural environments--first, by revising the definition of ``IFSP'' in
proposed Sec. 303.340(a), to affirmatively state that each child's IFSP
is developed by the IFSP team; second, by placing all substantive
``process'' requirements regarding natural environments in a new
Sec. 303.341 (``Policies and procedures on natural environments''),
including the State application requirements from Sec. 303.167(c); and
third, by revising the ``Content of IFSP'' requirements in
Sec. 303.344, to make clarifying and technical changes on natural
environments.
The revised definition of ``IFSP'' in Sec. 303.340(a) makes it
clear that, among its various duties and responsibilities, the IFSP
team is directly responsible for--(1) determining the specific early
intervention services necessary to meet the unique needs of the child
and the family, consistent with Sec. 303.344(d)(1); and (2)
implementing the provisions on natural environments in
Sec. 303.344(d)(3), including determining the specific locations or
settings where each service will be provided.
Section 303.167(c) (which contains the State application
requirement on natural environments from section 635(a)(16) of the Act)
would be amended by--(1) moving the substance of that requirement to a
new Sec. 303.341(a); and (2) revising the language in Sec. 303.167(c)
to clarify that each application must include ``Policies and procedures
on natural environments that meet the requirements of Secs. 303.341 and
303.344(d)(3).''
These proposed changes to the IFSP definition, together with the
new provisions in proposed Sec. 303.341, highlight the crucial role
that the IFSP team (including the parents) plays in implementing the
natural environments provisions, but does so without imposing any
additional burden on IFSP teams. However, these changes would address a
problem that the Department has found in monitoring States'
implementation of the Part C program. In some States, the decisions as
to the settings for providing services either (1) have been made
without the benefit of the full IFSP team's involvement; or (2) have
been dictated by external circumstances, such as funding sources or
personnel, without regard to the needs of the particular child.
Proposed Sec. 303.341(a) would incorporate the substance of
Sec. 303.167(c) (described earlier), and would be amended to clarify
the role of the IFSP team. It is the IFSP team that determines whether
early intervention can be achieved satisfactorily in a natural
environment, based on the evaluation and assessment required in
Sec. 303.322 and the information required in Sec. 303.344(a)-(c) (i.e.,
the child's present status, the family information, and the desired
outcomes).
A new Sec. 303.341(b) would be added to clarify that the policies
and procedures described in paragraph (a) of this section must ensure
that--(1) the IFSP team determines, for each service to be provided,
whether the child's needs can be met in a natural environment; and (2)
if the team determines that a specific service for the child must be
provided in a different setting (for example, in a center-based program
that serves children with disabilities, or another setting appropriate
to the age and needs of the child), a justification is included in the
child's IFSP.
Proposed Sec. 303.341(b) also would not add any new burden.
However, it would emphasize that the IFSP team's decisions on settings
are separate for each service to be provided. While some services for a
given child may be appropriately provided in the child's home, other
services may be more
[[Page 53811]]
appropriate in a group setting (e.g., if a service is designed to meet
a socialization goal, the team may choose a child care, day care, or
playgroup setting). In addition, this provision would emphasize that
the order of decision-making is, first, to determine, for each service
in the child's IFSP, if the needs of the child can be met in a natural
environment; and, then, only if the team determines that, for a given
service, the child's needs cannot be met in a natural environment would
other settings be considered.
A provision requiring that the IFSP include a justification of the
extent, if any, to which early intervention services will not be
provided in a natural environment is set out in the ``Content of IFSP''
requirements in Sec. 303.344; and the procedures that the IFSP team
follows in implementing that provision are contained in
Sec. 303.341(c). These provisions are described in the following
paragraphs.
The provisions on natural environments and location of services in
existing Sec. 303.344(d)(1) would be amended, first, by moving those
provisions, in modified form, to a new Sec. 303.344(d)(3), entitled
``Natural environments--location of services,'' and deleting existing
paragraphs (d)(1)(ii) and (d)(1)(iii); and, second, by revising new
Sec. 303.344(d)(3) to--(1) add a reference to the ``process''
requirements on natural environments in Sec. 303.341; and (2) clarify
that the decision on natural environments, and any justification
needed, is made separately for each service to be provided to the
child.
Proposed Sec. 303.341(c) would provide that the justification
required in Sec. 303.341(b) (and in Sec. 303.344(d)(3)(ii)) must--(1)
include a statement describing the basis of the IFSP team's decision to
provide a specific early intervention service for the child in a
setting other than a natural environment; (2) be based on the
identified needs of the child, and the projected outcomes, as
determined by the evaluation and assessment required in Sec. 303.322
and the information required in Sec. 303.344(a) through (c); and (3) if
appropriate, be based on the nature of the service required to meet the
unique needs of the child.
From the comments and questions we have received, it appears that
``natural environments'' is being interpreted by some to mean that,
without exception, early intervention services must be provided only in
the child's home, or in a community setting in which children without
disabilities participate. Clearly, this limitation is not intended
under either the statute or these regulations.
The statutory requirement that the IFSP include a justification of
the extent, if any, to which a child will not receive services in a
natural environment is a safeguard to ensure that the IFSP team,
including the parent, has concluded--only after carefully reviewing all
relevant information about the child--that one or more of the services
in the child's IFSP must be provided in a setting other than a natural
environment. The justification, itself, does not have to be long or
burdensome; it could include a simple statement, based on the IFSP
team's discussion and conclusions, that describes why the team
determined that a particular service for the child needs to be provided
in a different setting.
It is important, however, that the conclusions of the IFSP team, as
well as the justification, be based on the needs of the child, and not
for other reasons such as administrative convenience, or the State's
fiscal or personnel limitations.
The provision in proposed Sec. 303.341(c)(3) that concerns the
``nature of the service'' to meet the unique needs of the child to
support a justification, is meant to address the unique types of
services for certain types of disabilities that must be provided in a
specialized setting to be effective. For example, some auditory
services for deaf children need to be provided in a quiet, controlled
setting without noise distractions; and services for medically fragile
children may need to be provided in a sterile environment. However, it
is expected that this justification would be used only in those
extraordinary circumstances in which the child's unique needs and the
unique nature of the service require the service to be provided in a
specialized setting. Thus, as stated in the preceding paragraph, the
use of this justification would not be acceptable for any of the
reasons described earlier, such as administrative convenience, funding,
or personnel limitations.
Some commenters expressed concern about losing the parent-to-parent
interactions in early intervention centers. Parent networking, support,
and training, however, are important family needs that should be
addressed by the IFSP team as part of developing a child's IFSP. The
identification of parent support, training, or counseling, as a needed
early intervention service, may be provided directly through Part C, or
by referral to an organization that offers these services (e.g., a
Parent Training and Information Center, a Parent-to-Parent program, or
other family support organizations). The settings in which these
meetings or training sessions will take place should be part of the
overall discussion in the development of the IFSP.
Many early intervention centers that once served only children with
disabilities have expanded to serve nondisabled children. Thus, many
opportunities exist for parents of children with disabilities to
interact; and a parent's need for time with other parents of children
with disabilities may be successfully accommodated in either the
natural environments where the child receives services, or in other
settings.
However, the parent's need cannot be used as a justification for
not providing services to the child in a natural environment. With
respect to requiring a justification of the extent, if any, to which
the services will not be provided in a natural environment, the focus
of that requirement is on the child. Thus, any justification for the
child's services to take place in a setting other than a natural
environment must relate to the child's individual needs.
In fact, the settings for parent support, training, and counseling
are not affected by the natural environments provisions. This matter is
addressed in proposed Sec. 303.341(d), which would provide that the
provisions on natural environments in this part do not apply to
services in the IFSP that are intended to meet the needs of the parents
or other family members and not the needs of the child (e.g.,
participation of a parent in a parent-support program). However, if a
specific service listed in the IFSP is intended to help the parent to
enhance the development of the child (e.g., to train the parent to work
directly with the child in implementing an exercise recommended by a
physical therapist), the service must be provided in a natural
environment, to the maximum extent appropriate; and the natural
environments provisions would apply.
The definition of ``location'' in Sec. 303.344(d)(3) (and the
separate provision on ``[t]he location of the services,'' previously
described under Sec. 303.344(d)(1)(iii)) would be deleted. These
provisions are no longer needed, based on the evolution of the natural
environment provisions since the original Part H regulations were
published in 1989.
Other Proposed Regulatory Changes
As previously indicated, in addition to the provisions on natural
environments and the proposed changes to the provisions on ``Policies
and Procedures Related to Financial Matters'' (see description of
proposed Sec. 303.519, and proposed changes to Secs. 303.520-303.521),
we are proposing
[[Page 53812]]
to make changes to certain other requirements in the existing
regulations, including updating and clarifying those requirements, and
to make other technical and organizational changes designed to improve
the understanding and implementation of the regulations for the Part C
program.
We also are proposing to address the disposition of some of the
explanatory notes that follow selected sections of the current
regulations, as follows:
First, in a few instances, we are proposing to incorporate into the
text of the regulations the nonregulatory guidance contained in certain
selected notes, including the substance of the notes following
Secs. 303.23 (Service coordination; redesignated as proposed
Sec. 303.302); 300.123 (Prohibition against commingling); 303.301
(Central directory); and 303.361 (Personnel standards).
Second, we are proposing to amend the note preceding Sec. 303.6, to
delete ``location'' from the list of terms defined in this part
(described earlier in this preamble). We also are proposing to amend
the note following Sec. 303.12 (Early intervention services) to provide
additional clarification regarding ``qualified personnel'' who provide
early intervention services.
Third, we are proposing to delete Note 1 following Sec. 303.420
(Due process procedures) because, with the proposed changes made to
Sec. 303.420 and other sections under subpart E of these regulations,
the note would no longer be relevant. (An explanation of the proposed
changes made to the notes in this NPRM is included later in this
preamble under the discussion of each specific section.)
With respect to the remaining notes in the current regulations, we
are planning to remove those notes from the final regulations, either
by--(1) incorporating into the text of the regulations the substance of
any note that should be a requirement; (2) adding, as part of the
analysis of comments and changes, information from any note that
provides clarifying information or useful guidance; or (3) deleting any
note that is no longer relevant. Our proposed action with respect to
the notes is consistent with the process followed in publishing the
final Part B regulations.
We specifically invite public comment on which notes should be--(1)
made regulatory; (2) included only as guidance in the preamble to the
final regulations, or in the ``Analysis of Comments and Changes''
included in those regulations; or (3) deleted. In order to assist
commenters in this effort, we have included, as ``Attachment 2'' to
this NPRM, a list showing each section of the current regulations that
contains a note.
This NPRM includes a number of technical, structural, and
organizational changes that are proposed for the purpose of improving
the readability and understanding of certain requirements in the
regulations under this part. These technical, structural, and
organizational changes, which are described in the following paragraphs
(along with the proposed substantive revisions), are not intended in
any way to change the substance of the requirements.
The following includes, by subpart, section, and paragraph, a
description of the proposed changes to the current Part C regulations.
(See also Attachment 1 to this NPRM--the ``List of Proposed Changes in
IDEA--Part C Regulations,'' described earlier in this preamble.)
Subpart A--General
Section 303.3 (Activities that may be supported under this part)
would be amended, first, by making technical changes (e.g., changing
the title of the section to ``Use of Part C Funds''), and restructuring
the section, by redesignating the activities in Sec. 303.3(a)-(e) of
the existing regulations as paragraphs (a)(1)-(a)(5)).
Second, Sec. 303.3 would be amended by adding a new paragraph
(a)(6), to clarify that funds under this part may be used to assist
families to--(1) understand the sources of financing early intervention
services, including public and private insurance programs, and how to
access those sources; and (2) be knowledgeable about any potential
long-term costs involved in accessing those sources, and how to
minimize those costs.
It is important that families know how to access funding for early
intervention services and of the consequences of using public or
private insurance, so that they can make informed decisions about the
provision of services for their eligible children under this part. This
proposed use of funds would not be mandatory for States.
One way that States may assist families with respect to
understanding sources of funding under this provision would be through
the service coordinator assigned to each child and the child's family.
Therefore, we have proposed a corresponding change in the functions of
service coordinators under new Sec. 303.302.
Section 303.3 would be further revised by adding a new paragraph
(b)(1), to clarify that ``[f]unds under Part C of the Act may not be
used to pay costs of a party related to an action or proceeding under
section 639 of the Act and subpart E of this part.'' This provision
would prohibit the use of Part C funds for costs of a party in either
due process hearings or any resulting court proceedings, and related
matters, including costs for depositions, expert witnesses,
settlements, and other related costs. For example, under this
provision, the lead agency would not be able to use Part C funds to pay
for its legal representation in a due process hearing or resulting
court proceeding. It is important to include this prohibition, to
ensure that the limited Federal resources under Part C are used to
provide early intervention services for eligible children under this
part and their families, and are not used to promote litigation of
disputes.
A new Sec. 303.3(b)(2) would be added to make it clear that the
prohibition in paragraph (b)(1) does not preclude a lead agency from
using Part C funds for conducting due process hearings under section
639 of the Act (for example, paying a hearing officer, providing a
place for conducting a hearing, and paying the cost of providing the
parent with a transcription of the hearing). The general rule under
Sec. 303.3(b)--that prohibits the use of Part C funds to pay expenses
incurred by a party to an action or proceeding, but allows a lead
agency, as administrator of the program, to use the funds to make due
process hearings available--is consistent with the way it is expressed
in the Part B regulations.
Section 303.5 (Applicable regulations) would be amended by updating
paragraph (a)(1) of the section to include a reference to other parts
of the Education Department General Administrative Regulations (EDGAR)
that apply to part 303, including Part 97 (Protection of Human
Subjects); Part 98 (Student Rights in Research, Experimental Programs
and Testing); and Part 99 (Family Educational Rights and Privacy).
Section 303.5 would be further amended to clarify, in paragraph
(a)(3), that the Part B due process hearing procedures in 34 CFR
300.506-300.512 apply to this part if a State lead agency, under
Sec. 303.420(a)(1), adopts those procedures. This change would make
explicitly applicable the translations from Part B to Part C language
in Sec. 303.5(b). In addition, a technical change would be made to
Sec. 303.5(a)(3) to change the reference to applicable Part B
regulations from Secs. 303.580-303.303.585 to Secs. 303.580-303.587.
The references in Sec. 303.5(b)(4) would be removed because the
provisions cited under that paragraph are not applicable. Paragraph
(b)(5) of this section would be redesignated as (b)(4), and the
citation would be corrected to read, as follows:
[[Page 53813]]
``Sec. 300.127 (Confidentiality of personally identifiable
information).''
Definitions
The note immediately preceding Sec. 303.6 (which includes a list of
the terms that are defined in specific subparts and sections of the
regulations for part 303) would be amended by deleting the definition
of ``Location (Sec. 303.344(d)(3))'' from the list (see discussion of
natural environments earlier in this preamble).
Section 303.9 (Days) would be amended by changing the title to
``Day; business day;'' and by clarifying that ``business day'' would
apply only with respect to hearing rights under 34 CFR 300.509, if a
State adopts the Part B due process hearing procedures. As used in
these proposed regulations and in Part B (34 CFR part 300), ``business
day'' means Monday through Friday, except for Federal and State
holidays.
With respect to States that implement the due process hearing
procedures under Secs. 303.421-303.425 (in lieu of adopting the Part B
procedures), we invite comments on whether existing Sec. 303.422(b)(3)
(Parent rights in due process hearings) should be amended by replacing
``days'' with ``business days'' in the following provision:
(3) Prohibit the introduction of any evidence at the proceeding
that has not been disclosed to the parent at least five days before
the hearing.
The use of ``business days'' in this context would in no way reduce
a parent's rights under this part, but, instead, would be beneficial
because it would enable the parent to have more time in which to review
the evidence.
Section 303.12 (Early intervention services) would be amended by--
(1) changing the order of the paragraphs in the definition, including
the order of specific provisions in paragraph (a), to conform more
closely to the statutory definition; (2) moving the list of specific
early intervention services from paragraph (d) to paragraph (b); and
(3) clarifying, in proposed paragraph (a)(5), that the early
intervention services listed in paragraph (b) are subject to the
exclusions on health services in Sec. 303.13(c).
Section 303.12(a) would be further amended by--(1) clarifying, in
proposed paragraph (a)(6), that early intervention services are
provided ``in a timely manner'' by the qualified personnel listed in
paragraph (e) (proposed paragraph (c)); (2) specifying, in proposed
paragraph (a)(8), that, to the maximum extent appropriate, the services
are provided ``in natural environments, as defined in Sec. 303.18;''
and (3) making other technical changes.
Finally, Sec. 303.12 would be further revised by (1) moving the
substance of paragraph (b) (on ``natural environments'') to the
definition of that term in Sec. 303.18; and (2) making other technical
changes.
Section 303.12(d)(1) (proposed Sec. 303.12(b)(1)) (Assistive
technology) would be amended by restructuring the introductory
paragraph into new paragraph (b)(1)(i) (Assistive technology device)
and paragraph (b)(1)(ii) (Assistive technology service). The definition
of ``assistive technology service'' would be revised to clarify that
the term means a service ``that directly assists an eligible child or
the child's parents in the selection, acquisition, or use of an
assistive technology device for the child.'' (Emphasis added)
Section 303.12(d)(2) (proposed Sec. 303.12(b)(2))(audiology) would
be amended by changing the title to ``audiology services,'' to conform
to the statutory term; and by making other changes to conform more
closely to the Part B definition (e.g., replacing ``auditory
impairment'' with ``hearing loss'' each time it appears; deleting the
term ``at risk criteria and'' in paragraph (d)(2)(i); and adding a new
paragraph (d)(2)(vii) on ``Counseling and guidance of children,
parents, and teachers regarding hearing loss'').
In response to a suggestion from commenters, Sec. 303.12(d)(3)
(proposed Sec. 303.12(b)(3))(Family training, counseling, and home
visits) would be amended by adding ``special educators'' to the types
of personnel who may appropriately provide these services. Although the
phrase ``and other qualified personnel'' in the existing definition
under Sec. 303.12(d)(3) would encompass special educators as well as
other types of early intervention and related services providers,
special educators may not ordinarily be considered under this part as
having a role in providing family training, counseling, and home
visits.
Section 303.12(d)(6) (Nursing services) would be moved from the
definition of early intervention services to the definition of ``Health
services'' as a new Sec. 303.13(b)(3), to clarify that nursing services
are, in fact, an inherent part of ``health services necessary to enable
the infant or toddler to benefit from the other early intervention
services.'' (IDEA section 632(4)(E)(x)). Nursing services, like the
other health services listed in Sec. 303.13, may be provided through
Part C during the time a child is receiving the other early
intervention services described in Sec. 303.12, to enable the child to
benefit from those services. Because the placement of the definition of
nursing services in the existing regulations has caused confusion, this
change would clarify the meaning of nursing services under Part C. With
the removal of ``Nursing services'' from the list of early intervention
services under proposed Sec. 303,12(b), the remaining services in that
list would be renumbered accordingly.
Section 303.12(d)(8) (proposed Sec. 303.12(b)(7)) (Occupational
therapy) would be amended by adding language to clarify that the term
``(i) Means services provided by a qualified occupational therapist.''
Section 303.12(d)(11) (``Service coordination services'') would be
amended, first, by making technical changes (e.g., changing the title
to ``Service coordination,'' and changing the citation to
Sec. 303.12(b)(10)); and, second, by deleting the phrase--''that are in
addition to the functions and activities included under Sec. 303.23;''
and adding language to clarify that ``service coordination'' is
actually comprised of those functions and activities. (See discussion
that follows.)
In addition, because the definition of ``Service coordination (case
management)'' in Sec. 303.23 includes mainly long-standing substantive
requirements, and is not simply a definition, we are proposing to move
the substance of that definition, without change, to a new substantive
section of the regulations (Sec. 303.302 under Subpart D), and to
delete Sec. 303.23. This proposed change, together with the proposed
revision to Sec. 303.12(d)(11), would--(1) resolve the confusion that
has existed with two definitions of service coordination in the
regulations (i.e., in Secs. 303.12(d)(11) and 303.23), and (2) mean
that the only definition of service coordination under this part would
be the one in Sec. 303.12(d)(11) (proposed Sec. 303.12(b)(10)). As
revised, proposed Sec. 303.12(b)(10) would state that ``[s]ervice
coordination means assistance and services provided by a service
coordinator to a child eligible under this part and the child's family,
in accordance with Sec. 303.302.'' (Emphasis added)
Thus, ``service coordination'' would remain as a listed early
intervention service in proposed Sec. 303.12(b)(10). However, as
clarified in proposed Sec. 303.302(b)(2), IFSPs are not required to
include service coordination as one of the child's early intervention
services under Sec. 303.344(d)(1), because service coordination--(1) is
a basic entitlement of every eligible child under this part, and (2) is
an on-going, coordinative process that is designed to facilitate and
[[Page 53814]]
enhance the delivery of early intervention services. On the other hand,
IFSPs must include the name of the service coordinator, as currently
required in Sec. 303.344(g) (proposed Sec. 303.344(h)).
Because of the crucial role that service coordinators play in
facilitating the evaluation of an eligible child under this part, and
in the development and implementation of the child's IFSP, it is
appropriate that the functions and activities of the service
coordinator be moved to proposed Sec. 303.302, so that they are closely
linked to the child-centered requirements in Subpart D. A technical
change would be made in the introduction to proposed new Sec. 303.302
to make it clear that ``service coordination (case management)'' is a
substantive requirement and not a definition.
Section 303.12(d)(13) (proposed Sec. 303.12(b)(12)) (Special
instruction) would be amended by deleting, in paragraph (d)(13)(i), the
phrase ``in a variety of developmental areas, including cognitive
processes and social interaction,'' and replacing it with ``in the
following developmental areas: cognitive; physical; communication;
social or emotional; and adaptive.'' This proposed change more closely
tracks the developmental areas described in the statute and in
Secs. 303.16 and 303.300.
The definition of ``special instruction'' would be further amended
by revising paragraph (d)(13)(ii) to read as follows:
Planning that lead to achieving the outcomes in the child's
IFSP, including curriculum planning, the planned interaction of
personnel, and planning with respect to the appropriate use of time,
space, and materials.
This change would more accurately reflect ``special instruction'' as an
early intervention service, and would improve the readability and
understanding of the definition.
Section 303.12(d)(14) (proposed Sec. 303.12(b)(13)) (Speech-
language pathology) would be amended by--(1) adding ``services'' to the
title, to conform to the statutory term; (2) replacing
``oropharyngeal'' with ``swallowing'' each place it appears, to more
accurately and clearly describe the term used by speech-language
pathologists; and (3) adding a new paragraph (b)(13)(iv), related to
``Counseling and guidance of parents, children, and teachers regarding
speech and language impairments,'' to conform to the Part B definition.
The note following Sec. 303.12 would be revised by adding language
to clarify that ``qualified personnel'' who provide early intervention
services also may include augmentative communication specialists, and
technology specialists.
Section 303.13 (Health services) would be amended by revising
paragraph (b), to clarify that the covered health services under that
paragraph (e.g., clean intermittent catherization and other health
services listed in paragraph (b)(1), and consultation by physicians,
described in paragraph (b)(2)) are subject to the limitations included
under paragraph (c) (related to surgical procedures and other medical-
health services and devices that are not included under ``health
services''). Section 303.13(b) would be further revised by adding, as a
new paragraph (b)(3), the definition of ``nursing services'' previously
included under ``early intervention services'' (discussed earlier in
this preamble under Sec. 303.12(d)(6).)
In addition, Sec. 303.13(c) would be amended by including
additional examples of services and devices that are not covered under
``health services,'' as follows: (1) services that are surgical in
nature (i.e., the installation of devices such as pacemakers, cochlear
implants, or prostheses); and (2) devices necessary to control or treat
a medical or other condition (e.g., pacemakers, cochlear implants,
prostheses, or shunts).
Section 303.14 (IFSP) would be amended by--(1) changing the title
to ``IFSP; IFSP team;'' (2) designating the existing definition as
paragraph (a); and (3) adding a new paragraph (b) to specify that the
term ``IFSP team means the group of participants described in
Sec. 303.343 that is responsible for developing, reviewing, and, if
appropriate, revising an IFSP for an eligible child under this part.''
Although parents, public agencies, and service providers have
traditionally used ``IFSP team'' when referring to the ``Participants
in IFSP meetings'' in Sec. 303.343, the term has never been included in
the Part C regulations. We believe that using the term in the text of
the regulations when describing the ``IFSP team's'' role in
implementing specific Part C requirements improves the clarity and
readability of the regulations.
Section 303.18 (definition of ``natural environments'') would be
revised by incorporating into that definition the substance of the
provision on natural environments from Sec. 303.12(b) of the existing
regulation (discussed earlier in this preamble).
Section 303.19 (Parent) would be amended by making a technical and
conforming change to the definition (i.e., by adding, after ``A
guardian'' in paragraph (a)(2), the phrase ``, but not the State if the
child is a ward of the State.''). This phrase, which would conform the
definition of ``parent'' to the Part B definition, was inadvertently
omitted in the March 12, 1999 final regulations for Part C of IDEA (see
64 FR 12535).
Section 303.20 (Policies) would be amended by revising paragraph
(b)(3), due to the proposed changes to the sections on State finance
and systems of payments, to clarify that State policies include
policies concerning the State's system of payments, if any, and the
State's financing of early intervention services, in accordance with
Secs. 303.519-303.521.
Section 303.22 (Qualified) would be amended by changing the title
of the section to read ``Qualified personnel,'' and amending the
definition to conform to the definition of that term in the Part B
regulations (34 CFR 300.23).
Section 303.23 (Service coordination (case management)) would be
deleted, and the substance of the definition would be moved to a new
Sec. 303.302 (see earlier discussion under Sec. 303.12(d)(13)). The
remaining sections in Subpart A would be renumbered accordingly.
Subpart B--State Application for a Grant
General Requirements
Section 303.100 (Conditions of assistance) would be amended by (1)
making technical changes designed to improve the readability of the
section, including adding headings to each paragraph in the section;
and (2) adding a new paragraph (a)(1)(ii)(B), to clarify that the
information in a State's approved application that is on file with the
Secretary must contain ``Copies of all applicable State statutes,
regulations, and other State documents that show the basis of that
information.'' This is consistent with the Part B requirements in
Sec. 300.110(b)(2) and with Part C policy.
Statement of Assurances
Section 303.123 (Prohibition against commingling) would be amended
by deleting the note following that section, and incorporating the
substance of the note into the text of the regulations. This change
would strengthen and give more explicit meaning to the ``non-
commingling'' requirement.
Section 303.124 would be revised by adding a new paragraph (c).
This provision would codify existing Department policy interpreting the
test in Sec. 303.124(b) regarding the supplement-not-supplant
provision. Under paragraph (b), a State must
[[Page 53815]]
``budget,'' for early intervention services, at least the same amount
of State funds that it spent the previous year. This is part of an
application requirement, and the Department examines, as part of its
application review, whether the State plans to spend the same amount
that it did the previous year, on early intervention services.
Paragraph (c) would clarify that, if a State does not, in fact, spend
the amount it had spent in the previous year, a violation of
Sec. 303.124 occurs, unless one of the exceptions in paragraph (b)
applies.
We invite comment on whether the Department should broaden the
existing exception to the nonsupplanting requirement in
Sec. 303.124(b)(2)(ii) concerning the uses of funds for which allowance
may be made, in order to enable States to use funds to carry out other
purposes in the Part C system beyond the construction or equipment
currently covered.
General Requirements for a State Application
Section 303.140 (General) would be amended by deleting, in
paragraph (a), the phrase ``in this part,'' and replacing it with ``in
Sec. 303.160'' (i.e., ``The statewide system of early intervention
services described in Sec. 303.160 is in effect.''). This change would
more explicitly describe what a State must do to meet the application
requirements in Subpart B.
Section 303.148 (Transition to preschool programs) would be
amended, first, by changing the title of the section to ``Transition to
preschool or other appropriate services,'' and making other similar
changes to clarify that some children who receive early intervention
services under this part may not receive preschool services under Part
B of the IDEA; and second, by restructuring the section for clarity,
accuracy, and completeness, including adding, in proposed
Sec. 303.148(c), provisions from Sec. 303.344(h) that require parental
consent for the transfer of records for the purpose of a child's
transition to preschool or other services.
These proposed changes to Sec. 303.148 (as described in the
following paragraphs) have consolidated in one section all process
requirements regarding the transition of a child from the early
intervention program under this part to preschool or other appropriate
services. This restructuring of the requirements on transition should
be helpful to parents and public agency staff in understanding the
requirements, and should facilitate implementation of the provisions.
The introductory paragraph in the existing Sec. 303.148 would be
designated as paragraph (a) (General), and would be amended to clarify
that the description of policies and procedures to be used to ensure a
smooth transition must meet specified requirements in proposed
paragraphs (b) through (f) of this section.
The substance of existing paragraphs (a) and (b)(1) would be
incorporated, with minor clarifying changes, into a new paragraph (b),
entitled ``Family involvement; notification of local educational
agency.'' This new paragraph would require that a State's application
describe (1) how the families of children served under this part will
be included in transition plans for the children; and (2) how the lead
agency will notify the LEA for the area in which an eligible child
resides that the child will shortly reach the age of eligibility for
preschool services under Part B of the Act, as determined in accordance
with State law.
A proposed new paragraph (c) (Transmittal of records; parental
consent) would be added, by (1) requiring that the State's application
under this part include a description of the policies and procedures to
be used for transmitting records about a child to an LEA, or any other
agency, for the purposes of facilitating the child's transition to
preschool or other services, and ensuring continuity of services for
the child; and (2) incorporating, with certain clarifications, the
provision from the IFSP requirements in Sec. 344(h)(2)(iii) regarding
the transmission of information about a child, with parental consent,
to an LEA to support the child's transition.
A new Sec. 303.182(c)(2) would be added to clarify that such
consent is not required before submitting to an LEA directory
information about a child (e.g., the child's name, address, telephone
number, and age), if the information is provided for the specific
purpose of assisting the LEA to implement the Part B child find
requirements under 34 CFR 300.125. This reflects existing Department
policy--that consent is not required if the transmittal is for child
find purposes.
The requirement in Sec. 303.148(a) and (c) for ``a description'' of
the policies and procedures on transition to preschool or other
programs would be satisfied by submitting the actual policies and
procedures. (In any event, submission of the actual documents is
required under proposed Sec. 303.100((a)(1)(ii)(B).)
Proposed Sec. 303.148(c)(1) and (c)(2)(i) use the term ``records''
in this requirement. However, proposed paragraph (c)(2)(ii) clarifies
that the ``records'' required in this section include any personally
identifiable information about the child, including evaluation and
assessment information required in Sec. 303.322, and copies of IFSPs
that have been developed and implemented in accordance with
Secs. 303.340-303.346. It is important for this requirement to be as
comprehensive as possible with respect to the transfer of information
about a child from the lead agency to the LEA or other affected
agencies, so that there is no misinterpretation of what must be
transmitted, and where consent would be required.
The substance of existing paragraphs (b)(2)(i) and (ii) would be
incorporated, essentially unchanged, under a new Sec. 303.148(d),
entitled ``Conference to discuss services.''
Proposed paragraph (d)(1) would describe the procedures for the
lead agency to follow to convene a conference for the purpose of
planning for preschool services for a child eligible under this part,
and paragraph (d)(2) would describe the steps to be followed for a
child who may not be eligible for preschool services under Part B of
the Act.
Existing Sec. 303.148(b)(3) and (4) would be incorporated,
essentially unchanged, under proposed paragraph (e), entitled ``Program
options; transition plan.''
Existing Sec. 303.148(c) would be redesignated as new
Sec. 303.148(f) (``Interagency agreement''), and the substance of the
provision would be incorporated, with clarifying changes, into the new
paragraph. As in the existing regulations, this provision makes it
clear that if the State educational agency (SEA) and the lead agency
under this part are not the same, the policies and procedures required
under Sec. 303.148(a) must provide for the establishment of an
interagency agreement between the lead agency and the SEA, to ensure
appropriate coordination on transition matters.
Section 303.167 (Individualized family service plans) would be
amended by--(1) moving the substance of paragraph (c) (on natural
environments) to a new Sec. 303.341(a), and (2) revising the language
to clarify that each application must include ``Policies and procedures
on natural environments that meet the requirements of Secs. 303.341 and
303.344(d)(3).'' (See discussion on natural environments included
earlier in this preamble.)
Section 303.173 (Policies and procedures related to financial
matters) would be amended by clarifying, in paragraph (b), the kinds of
information about funding resources required in
[[Page 53816]]
Sec. 303.522 that must be included in each application (i.e., (1) the
name of each State agency that provides early intervention services, or
funding, for children eligible under Part C, even if the agency does
not receive Part C funds; (2) the specific funds used by the agency for
early intervention services, such as State Medicaid or State special
education funds; and (3) the intended use of those funds). These
proposed changes are intended to strengthen the regulatory requirements
on interagency cooperation (see discussion under Sec. 303.523 in this
preamble).
Subpart D--Program and Service Components of a Statewide System of
Early Intervention Services
Section 303.300 (State eligibility criteria and procedures) would
be amended, as follows: first, by making technical changes, e.g., (1)
changing the title of the section to ``Child eligibility--criteria and
procedures;'' (2) making other technical changes to improve the
readability of the section, including adding paragraph headings (e.g.,
``General,'' ``State definition of developmental delay,'' ``Diagnosed
condition,'' and ``Children who are at risk''); and (3) clarifying, in
a new paragraph (a)(1)(ii), that the State's eligibility criteria must
meet the requirements in paragraphs (b)-(d) of Sec. 303.300.
Second, Sec. 303.300 would be further revised by adding a new
paragraph (a)(2) to clarify that the State's criteria and procedures
related to child eligibility must be on file in the State, and be
available for public review.
Section 303.301 (Central directory) would be amended by (1) adding,
as a parenthetical statement in paragraph (a)(3), the substance of the
note following the section (regarding examples of professional and
other groups), and (2) deleting the note.
A new Sec. 303.302, entitled ``Service coordination'' would be
added that would incorporate the substance of the definition of
``Service coordination (case management)'' from Sec. 303.23 (described
earlier in this preamble under Sec. 303.12(d)(11)). Although the title
of current Sec. 303.23 includes the parenthetical term ``(case
management),'' we are proposing to omit that term from the title of
proposed Sec. 303.302 because it is no longer relevant under this part.
The term ``case management'' was used in the original ``Part H''
statute and regulations. However, the term was replaced with ``service
coordination'' by the IDEA Amendments of 1991 (Pub. L. 102-119). When
the regulations implementing Pub. L. 102-119 were published in 1993, we
included the parenthetical term ``case management'' as a transitional
term, and to ensure that the change to ``service coordination'' would
not affect services provided under Medicaid. However, at this point in
implementing Part C, it is no longer necessary to make any reference to
``case management.'' The Senate Report on Pub. L. 102-119 stated that
the term ``service coordination'' had been adopted in lieu of ``case
management,'' and added--
The committee decided to change the references in other sections
in the legislation because it agrees with parents that they are not
cases and do not need to be managed. The intent of this provision is
not to change the policy set out in the current definition of ``case
management'' in the regulations and not to affect in any way the
authority to seek reimbursement for services provided under Medicaid
or any other legislation that makes reference to ``case management''
services. (S. Rep. No. 102-84, p. 19 (1991))
Proposed Sec. 303.302 also would include, as a new
Sec. 303.302(a)(2), the substance of the note following Sec. 303.23, to
clarify that--(1) if a State has an existing service coordination
system, the State may use or adapt that system, so long as it is
consistent with the requirements of this part; and (2) a public
agency's use of the term service coordination is not intended to affect
the agency's authority to seek reimbursement for services provided
under Medicaid or any other legislation that makes reference to case
management services. (The note following Sec. 303.23 would be deleted.)
Proposed Sec. 303.302(d)(8) would include a new function for
service coordinators that involves assisting families in--(1)
understanding the sources of financing early intervention services and
how to access those sources, and (2) being knowledgeable about any
potential long-term costs to families in accessing those sources. This
provision, which is similar to the proposed provision under
Sec. 303.3(a)(6), is important because, as previously stated, families
need to know how to access funding for early intervention services, and
of the consequences of using public or private insurance, so that they
can make informed decisions about the provision of services for their
eligible children under this part. (Similar language is also included
in current Note 3 following Sec. 303.344.)
We have included language in proposed Sec. 303.302(d)(8) to clarify
that States have the discretion of deciding if this new service
coordination function is one that must be carried out. We invite
comments on whether this proposed function should be required or left
to the discretion of each State.
Identification and Evaluation
Section 303.320 (Public awareness) would be amended by making
technical changes to improve the clarity and readability of the
section, and to more closely track the statutory language.
Section 303.321 (Comprehensive child find system) would be amended
by revising paragraph (b), first, to rename the paragraph ``Policies
and procedures;'' and, second, to clarify in paragraph (b)(1), that the
requirement to ensure that all infants and toddlers who are eligible
for services under this part are identified, located, and evaluated
includes ``(i) traditionally underserved groups, including minority,
low-income, inner-city, and rural families; and (ii) highly mobile
groups (such as migrant and homeless families).''
Section 303.321 would be further amended by deleting the ``two-
day'' timeline in paragraph (d)(2)(ii), and revising the provision to
read as follows: ``Ensure that referrals are made as soon as reasonably
possible after a child has been identified.'' In administering the Part
C program over an extended period of time, the Department has found
that it is unreasonable and impractical for referral sources to be
expected to make referrals in this short of a time. The timeline needs
to be sufficiently flexible to allow for some variation, on a case-by-
case basis, for making referrals.
The introduction of such a tight timeline in the 1989 regulations
was included to convey the sense of urgency in which referral sources
should act when they identify a child who is suspected of having a
disability. The analysis of the comments to those regulations states
that--
Because of the rapidly changing needs of infants and toddlers,
the Secretary believes that it is important to establish very short
timelines for referring a child for evaluation or services. (54 FR
26337, June 22, 1989).
Although the two-day timeline proved to be impracticable, the sense
of urgency conveyed in the initial Part H regulations is still
critical. Establishing any timeline (e.g., 5 days) may not provide a
reasonable standard for a referral source to follow in making a timely
referral; in some cases an earlier referral may be reasonable, and in
other cases, a later one. Therefore, the concept of ``as soon as
reasonably possible'' retains the necessary sense of urgency without
imposing unrealistic and unreasonable timelines.
In monitoring implementation of this provision, the Department
would look at a general pattern of referrals in the State.
[[Page 53817]]
Referrals made within a range of two to five days or even somewhat
longer would be acceptable. However, a referral pattern that is
significantly longer would not meet the spirit of this requirement, nor
would it be in the best interests of the children served.
We specifically invite comments on whether the proposed change to
the referral timeline in this NPRM (i.e., ``Ensure that referrals are
made as soon as reasonably possible after a child has been
identified'') is appropriate, or on what would be a reasonable
timeline.
Section 303.322 (Evaluation and assessment) would be amended by
revising paragraph (a)(1)(ii) to clarify that the family-directed
identification of the needs of each child's family meets the ``Family
assessment'' requirements in paragraph (d). In implementing
Sec. 303.322, it is important that lead agencies recognize that there
is a direct link between the requirements in proposed paragraphs
(a)(1)(ii) and (d).
Individualized Family Services Plans (IFSPs)
Section 303.340 (General) would be amended by changing the title of
the section to ``Definition of IFSP; lead agency responsibility,'' and
making other changes, as follows: First, the existing definition of
IFSP in Sec. 303.340(b) would be redesignated as proposed
Sec. 303.340(a) (``Definition of IFSP''), and would be revised to
affirmatively state that each child's IFSP team is responsible for
developing the child's IFSP, as well as determining the information
that is included in the IFSP. Second, the provision on lead agency
responsibility in current Sec. 303.340(c) would be redesignated as
proposed Sec. 303.340(b), and would be revised by adding an
introductory clause (``The lead agency in each State must ensure that--
''). Finally, current Sec. 303.340(a) (regarding policies and
procedures on IFSPs) would be redesignated as proposed
Sec. 303.340(b)(1), and would be revised by replacing ``includes'' with
``has in effect.''
A new Sec. 303.341 (Policies and procedures on natural
environments) would be added. (A description of that proposed
provision, and the changes made to the definition of IFSP that affect
the natural environment provisions, is included earlier in this
preamble.)
Section 303.342 (Procedures for IFSP development, review, and
evaluation) would be amended, first, by making technical changes (e.g.,
changing the title to ``Development, review, and revision of IFSPs'',
and adding titles to paragraphs (a), (a)(1), and (b)). We are proposing
to replace the term ``evaluation'' with ``revision'' in the title of
the section to more accurately reflect what may happen in both the
periodic review meetings and the annual evaluations of the IFSP. For
example, Sec. 303.342(c) of the current regulation, which is unchanged
in this NPRM, states that ``A meeting must be conducted on at least an
annual basis to evaluate the IFSP * * *. and, as appropriate, to revise
its provisions.'' (Emphasis added)
Second, Sec. 303.342 would be further amended by adding a new
substantive provision in paragraph (a)(2) (Consideration of special
factors), as adapted from the Part B statute and regulations. Several
commenters recommended that the special considerations provision from
Part B (34 CFR 300.346(a)(2)), as adapted, be included in the
regulations under this part. In developing each child's IFSP, it is
important that the IFSP team consider all factors relating to the
child's development and to the services that are required to meet the
identified needs of the child. Although many IFSP teams may routinely
make these considerations in developing a child's IFSP, this provision
helps to ensure that these basic factors will be addressed, as
appropriate, in all cases.
Because the special considerations provision under Part B is
targeted on preschool and school-aged children, some of the items under
that provision may not seem to be directly relevant to infants and
toddlers with disabilities. However, each provision has been adapted,
to the extent necessary, to apply to children eligible under Part C.
For example, although Braille, as such, would not be taught to infants
or toddlers who are blind or visually impaired, there are appropriate
pre-literacy or readiness activities related to the use of Braille
(e.g., the use of tactile stimulation and ``raised'' picture books)
that could enhance the child's ability to learn, and to use, Braille at
the appropriate time in his or her school years.
In all of the factors included under Sec. 303.342(a)(2), the IFSP
team, which includes the parents, would make individualized
determinations, as appropriate, about the implications of any one, or
more than one, of the factors with respect to the specific early
intervention services that the child is to receive.
Section 303.343 (Participants in IFSP meetings and periodic
reviews) would be amended, first, by changing the title to ``IFSP
team--meetings and periodic reviews.'' (See earlier discussion under
Sec. 303.14 regarding the proposed use of ``IFSP team'' in these
regulations.) Second, Sec. 303.343 would be further amended by revising
the provisions in paragraph (a)(2) on how the evaluation results would
be appropriately addressed if the person or persons directly involved
in conducting the evaluations and assessments is unable to attend the
IFSP meeting. The existing regulations provide three options to ensure
such a person's involvement: (1) Participation in a telephone
conference call; (2) having a knowledgeable authorized representative
attend the meeting; or (3) making pertinent records available at the
meeting.
Although options 1 and 2 provide an effective means of addressing
the contingency described in the preceding paragraph, the Department,
in its monitoring of this provision, has found that option 3 does not,
by itself, serve as an effective substitute, because there is no
assurance that the members present at the IFSP meeting are sufficiently
knowledgeable about the evaluation results to appropriately interpret
those records at the meeting.
Thus, Sec. 303.343(a)(2) would be amended by restructuring and
revising the provision to distinguish between ensuring either--(1) the
person's involvement through other means (e.g., through participating
in a telephone conference call); or (2) that the results of the
evaluations and assessments are appropriately interpreted at the
meeting, by making pertinent records available at the meeting, and
having a person attend the meeting who is qualified to interpret the
evaluation results and their service implications. This provision is
further revised to make it clear that the person who is qualified to
interpret the results may be one of the participants described in
Sec. 303.343(a)(1)(i)-(a)(1)(vi).
These proposed changes would help to ensure that the evaluation
records are appropriately interpreted, and, in most cases, without
added burden. The proposed change in paragraph (a)(2)(ii) would permit,
as in the Part B regulations (34 CFR 300.344(a)(5)), the person
qualified to interpret the evaluation results to be someone who is
already a member of the IFSP team. The operative term in the proposed
requirement is a person who is ``qualified to interpret'' the
evaluation results. Thus, it is possible that any of the members of the
IFSP team, including the parents, could have the necessary training and
experience to be able to perform this function.
In the event that none of the other members of the team is
qualified to effectively interpret the evaluation results, it would be
necessary to arrange for an appropriately qualified person to be
present, at least for a portion of the meeting, or provide other ways
to
[[Page 53818]]
ensure that the team is appropriately informed of the results of the
evaluations and their service implications, in order to enable the team
to develop a meaningful IFSP.
Section 303.344 (Content of IFSP) would be amended by--(1) adding a
new paragraph (b)(2) to specify that the statement on family
information must be based on the family assessment required under
Sec. 303.322(d); and (2) revising paragraph (c) to clarify that the
outcomes must be based on the evaluations and assessments conducted
under Sec. 303.322(c) and (d).
Although IFSPs for children eligible under this part are required
to be based on the evaluations and assessments in Sec. 303.322(c) and
(d), experience has shown that this does not always occur. Thus, it
would be appropriate to make this proposed change in the existing
regulations, so that parents and public agencies will be aware of this
requirement. It is important, however, to recognize that this new
provision does not add an additional burden.
Section 303.344(d) (Content of IFSP-Early intervention services)
would be amended, first, by restructuring the paragraph for clarity and
to improve its readability, including adding headings to each
redesignated paragraph within that provision (i.e., ``Statement of
services;'' ``Frequency, intensity, and method;'' ``Natural
environments--location of services;'' and ``Payment arrangements'').
Second, Sec. 303.344(d) would be further revised by--(1) clarifying
that the IFSP must specify, for each service, the frequency, intensity,
and method of delivering the service; (2) replacing the substance of
the provision on natural environments with more definitive clarifying
language; (3) deleting the provision regarding the location of services
in paragraph (d)(1)(iii), and the definition of ``location'' in
paragraph (a)(3); and (4) making other technical changes. (A
description of the changes on natural environments and location of
services is included earlier in this preamble in the discussion on
``natural environments.'')
With respect to including a statement of early intervention
services in a child's IFSP, it is appropriate to describe any specific
training to be provided to the parents to assist them in working with
their child (Sec. 303.344(d)(1)). However, the training may not take
the place of providing direct service to the child, if the IFSP team
determines that direct services are needed. For example, a State could
not have a practice of having an occupational therapist train the
parents to work with their child as an alternative to providing direct
services to the child, if direct services had been determined necessary
by the IFSP team.
A new Sec. 303.344(e) would be added to clarify that, except as
provided in Sec. 303.345, evaluations and assessments required under
Sec. 303.322 (including the functions relating to evaluations and
assessments described in the individual early intervention services
definitions under Sec. 303.12(d) of the current regulations) must be
completed prior to, and in preparation for, conducting an IFSP meeting
for each eligible child under this part. In monitoring implementation
of the IFSP requirements, the Department has identified instances, as a
common practice, in which IFSP meetings were conducted before a child
had been evaluated, and the IFSP would list the basic evaluations and
assessments to be conducted as IFSP services.
Section 303.344(e), therefore, provides that evaluations and
assessments must be conducted prior to the IFSP meeting, to assist the
IFSP team in determining the outcomes and services for the child.
There, of course, may be situations following the initial evaluation
and assessment of a child in which the IFSP team determines that
further evaluations or assessments will be necessary during the period
in which the child's IFSP is in effect, in order for the team to make
an informed decision about possible modifications in the services the
child is receiving. In such situations, a statement to that effect
would be included in the child's IFSP, and the additional evaluations
or assessments would be documented by the IFSP team. In addition,
proposed Sec. 303.344(e) includes a reference to existing Sec. 303.345,
which permits early intervention services to be provided before the
evaluations and assessments are completed, but sets very specific
conditions for implementing that provision.
Section 303.344(h) (Transition from Part C services), would be
redesignated as paragraph (i), and would be amended by moving the
substance of Sec. 303.344(h)(2)(iii) (regarding the transmission of
information about the child to an LEA or other relevant agency to
Sec. 303.148 (described earlier in this preamble), but making a
reference to that step and the conference step. Proposed
Sec. 303.344(i) would be further revised by adding a new paragraph
(i)(2)(iv), to provide that the IFSP include ``Other activities that
the IFSP team determines are necessary to support the transition of the
child.''
The changes that are proposed to the transition provisions in
Sec. 303.344(i) help to clarify that the steps required in the IFSP are
activities for a child and the child's parents that are necessary to
support the transition of the child, whereas the provisions in
Sec. 303.148 include the administrative functions and processes that a
lead agency must carry out to ensure effective implementation of the
transition requirements.
Personnel Training and Standards
Section 303.360 (Comprehensive system of personnel development
(CSPD)) would be amended by making technical changes for improved
clarity and readability, including restructuring the section and adding
paragraph headings.
No other changes would be made to the CSPD requirements at this
time. However, we specifically invite comments on the extent to which
the CSPD requirements under this part should be the same as the CSPD
requirements under Part B, especially with respect to ensuring an
adequate supply of qualified personnel. There is a defined statutory
link between the CSPD requirements in the Part B and Part C programs.
However, the specific requirements under each part are different in
both the statute and the implementing regulations.
Section 635(a)(8) of the IDEA provides that each statewide system
of early intervention services must include a comprehensive system of
personnel development that meets certain specified requirements and
``that is consistent with the comprehensive system of personnel
development [under Part B of the Act] described in section 612(a)(14) *
* *''. A corresponding requirement on CSPD is included under the Part B
requirements in section 612(a)(14) of the Act, which provides that--
The State has in effect, consistent with the purposes of this
Act and with section 635(a)(8), a comprehensive system of personnel
development that is designed to ensure an adequate supply of
qualified special education and related services personnel that
meets the requirements for a State improvement plan relating to
personnel development in subsections (b)(2)(B) and (c)(3)(D) of
section 653.
Thus, in submitting comments regarding whether changes are needed
in the CSPD requirements under this part, some of the questions to be
addressed would be:
* Is there a need to amend the CSPD requirements under these
Part C regulations?
* Is there a shortage of qualified early intervention
personnel that needs to be addressed through the CSPD requirements in
this part?
[[Page 53819]]
* Should the Part C CSPD be amended to more specifically
address the issue of ensuring an adequate supply of qualified early
intervention services personnel? And, if yes, should the provisions in
the Part B regulations (34 CFR 300.381) be adapted, or should separate
provisions be added?
* Should other areas be addressed, similar to the
improvement strategies in 34 CFR 300.382?
Attachment 3 to this NPRM includes the CSPD requirements under the
Part B regulations, to assist commenters in responding to the questions
listed in the preceding paragraphs.
Section 303.361 (Personnel standards) would be amended by making
changes necessary to ensure that the personnel standards requirements
under this part fully conform to those requirements in the Part B
regulations (34 CFR 300.136). Several commenters in responding to the
1998 notices recommended that these changes be made, and the Department
believes that it is appropriate for these requirements to be the same
under both parts. Therefore, the following changes would be made:
* Paragraph headings would be added to parallel the
paragraph titles under Part B, and for improved readability.
* The substance of the note following Sec. 303.361 would be
added to the text of the regulations as policies and procedures under a
new paragraph (b)(2) and (b)(3). Proposed paragraph (b)(2) would
provide that each State may determine the specific occupational
categories required for early intervention services, and revise or
expand those categories as needed.
* Proposed paragraph (b)(3) would state--``Nothing in this
part requires a State to establish a specified training standard (e.g.,
a masters degree) for personnel who provide early intervention services
under Part C of the Act.''
* A provision from the policies and procedures in the Part B
regulations (34 CFR 300.136(b)(4)) would be incorporated, without
change, as a new paragraph (b)(4) under the policies and procedures for
this part. That provision clarifies that--
(4) A State with only one entry-level academic degree for
employment of personnel in a specific profession or discipline may
modify that standard, as necessary, to ensure the provision of early
intervention services without violating the requirements of this
section.
Section 303.361(g) (Policy to address shortage of personnel) would
be amended by adding, as a new paragraph (g)(2), provisions from Part B
regulations (34 CFR 300.136(g)(2) and (3)).
Because of the interest in having a seamless system of services
from birth through the early childhood years, and the close link
between the types of personnel under both the Part B and Part C
programs, having the same personnel standards requirements under both
programs would increase the likelihood of having a more effective and
efficient mechanism to help ensure that personnel necessary to carry
out the purposes of each part are appropriately and adequately prepared
and trained.
Subpart E--Procedural Safeguards
Section 303.401(a) (Definition of consent) would be amended by
adding a new paragraph (a)(3)(ii) to provide that if a parent revokes
consent, that revocation is not retroactive (i.e., it does not negate
an action that has occurred after the consent was given and before the
consent was revoked).
This provision was adopted from the definition of consent in the
Part B final regulations (34 CFR 300.500). If parental consent is
required for a service or activity, it would be impractical to allow a
parent to retroactively revoke that consent. Thus, once the parents of
a child consent to a decision (e.g., for an evaluation or provision of
services), any revocation of their consent once the action to which
they consented has been carried out will not affect the validity of the
action. The analysis of comments to the final Part B regulations state
that ``Since the non-retroactivity of a parent's revocation is based on
the Department's interpretation of the statute, and is important to
make clear to all parties, it should be set forth in the regulation
itself.'' (64 FR 12606, March 12, 1999).
Section 303.420 (Due process procedures) would be amended, first,
by redesignating existing paragraph (a) (adopting the Part B due
process procedures) and paragraph (b) (developing specific Part C due
process procedures for this part) as paragraphs (a)(1) and (2); and,
second, by adding a new paragraph (b) (on mediation), which provides
that if a parent initiates a hearing under paragraph (a)(1) or (a)(2),
the lead agency must inform the parent of the availability of
mediation.
This proposed provision on mediation would be added to conform to a
corresponding provision on mediation in Sec. 300.507(a)(2) of the Part
B regulations. The preamble to the 1997 Part B NPRM stated that ``the
Secretary would interpret the requirement of section 615(e)(1) that
mediation be available whenever a hearing is requested, as requiring
that parents be notified of the availability of mediation whenever a
due process hearing is initiated.'' (62 FR 55045, October 22, 1997).
Consistent with section 639(a)(8) of the Act (which provides that the
procedural safeguards under Part C must include ``the right of parents
to use mediation in accordance with section 615(e) * * *''), the Part B
provision in Sec. 300.507(a)(2) should be added to the Part C
regulations.
This proposed provision on mediation simply expands on the language
in Sec. 303.419(a)(1), which provides that mediation ``at a minimum,
must be available whenever a hearing is requested under Sec. 303.420.''
Therefore, proposed Sec. 303.420(b) does not add an additional burden,
but simply makes clear, within the context of the required ``due
process procedures'' in Sec. 303.420, that the lead agency has a
responsibility to inform parents about the availability of mediation at
the time the parents request a hearing.
Section 303.420 would be further amended by replacing the term
``complaint'' (or ``individual child complaints'') with ``due process
hearing or hearings'' throughout this section. Similar changes would be
made in Sec. 303.402, and in Secs. 303.421-303.425, as reflected in the
descriptions included later in this preamble.
It is important to make this change because the use of the single
word ``complaint'' to refer to two different types of administrative
proceedings under this part has often created confusion for both
parents and public agencies. We believes that it would be helpful in
resolving this confusion if the term ``complaint'' would be used only
with respect to the State complaint procedures required under
Secs. 303.510-303.512, and that the term ``due process hearing'' would
be used for parents who are requesting a hearing under Secs. 303.420-
303.425.
The prior notice provisions under Sec. 303.403(b) require that when
a public agency gives written notice to the parents of any action it is
proposing or refusing to take, the agency must inform the parents about
both--(1) the due process hearing procedures in Secs. 303.420-303.425,
and (2) the State complaint procedures under Secs. 303.510-303.512. The
parents would then be able to determine which method or methods of
redress they might pursue if there is a dispute about any of the
matters in Sec. 303.403(a) (regarding the identification, evaluation,
or placement of an eligible child, or the provision of appropriate
early intervention services to the child and the child's family).
The note following Sec. 303.420, which describes the differences
between two types of administrative complaints,
[[Page 53820]]
would be removed because it would no longer be relevant.
Section 303.421 (Appointment of an impartial person) would be
amended by--(1) changing the title to ``Impartial hearing officer;''
(2) replacing ``complaint'' with ``dispute'' in paragraph (a)(2); and
(3) replacing, in paragraph (b)(1), ``the person appointed to implement
the complaint resolution process'' with ``a person who serves as a
hearing officer in accordance with this section.''
Section 303.422 (Parent rights in administrative proceedings) would
be amended by changing the title to ``Parent rights in due process
hearings;'' and by replacing ``administrative proceedings'' with ``due
process hearings'' in the text.
Section 303.423 (Convenience of proceedings; timelines) would be
amended by replacing ``proceedings'' with ``hearings'' in the title;
and replacing ``complaint or ``complaint resolution process'' with
``due process hearing.''
Section 303.424 (Civil action) would be amended to make it clear
that the section only applies if a party is aggrieved by the findings
and decision in a due process hearing.
Section 303.425 (Status of child during proceedings) would be
amended by--(1) replacing, in paragraph (a), ``complaint under this
subpart'' with ``administrative or judicial proceeding involving a
request for a due process hearing under 303.420;'' (2) replacing
``complaint'' with ``proceeding'' in paragraph (b); and (3) adding a
new paragraph (c) to provide, consistent with existing Department
policy, that the pendency provisions of this section do not apply if a
child is transitioning from early intervention services under Part C to
preschool services under Part B.
Subpart F--State Administration
General
Section 303.501 (Supervision and monitoring of programs) would be
amended by changing the title of paragraph (b) from ``Methods of
administering programs'' to ``Methods of ensuring compliance,'' and by
making a similar change in the text.
Policies and Procedures Related to Financial Matters
These regulations would add a new Sec. 303.519, containing much of
previous Sec. 303.520 (Policies related to payment for services).
Proposed Sec. 303.520 would address States that have a system of
payments, and proposed Sec. 303.521 would address the use of public or
private insurance in financing early intervention services.
In proposed Sec. 303.519, the introduction from current
Sec. 303.520(a) is incorporated as new Sec. 303.519(a); new paragraphs
(a)(1)(i) and (a)(1)(ii) would reference the applicable provisions for
States' policies on payment for services, depending on whether or not
the State has a system of payments. Section 303.519(a)(1)(ii) would
also require that a State without a system of payments have a policy
stating that all services are at no cost to parents. Proposed paragraph
(a)(1) contains the provision regarding interagency agreements from
current Sec. 303.520(a)(2).
IDEA section 632(4)(B) provides that services must be ``provided at
no cost, except where Federal or State law provides for a system of
payments by families, including a schedule of sliding fees.'' Thus, if
there is a payment system under either State law or Federal law,
services need not be ``at no cost.'' Under proposed Secs. 303.519 and
303.520, the State must affirmatively designate in its policies whether
it is including, in its ``system of payments,'' various existing
payment systems that families may be subject to. This will provide more
clarity for families, policy-makers, and Federal monitors, as to which
fees, if any, families must pay under the State's early intervention
system.
Under this proposed regulation, current paragraphs (c) and (d) of
Sec. 303.520 become paragraphs (b) and (c) of Sec. 303.519. The only
change to current paragraph (c) is a technical one, deleting the
reference to a State's fifth year of participation. New
Sec. 303.519(c)(2) provides that, although income generated from fees
under a system of payments, such as fees from a sliding fee scale, do
constitute program income under 34 CFR 80.25, States are authorized to
add such income to their grant, rather than being required to deduct
such program income from the allowable costs of the grant. States are
encouraged to use the fee income to augment their Part C grant.
Current Sec. 303.520(d)(2) would be revised, in proposed
Sec. 303.519(c)(3), to clarify that, in addition to reimbursements from
Federal funds, if a State receives and spends payments from private
insurance plans, those funds are not considered ``State and local
funds'' for purposes of the nonsupplanting requirements in
Sec. 303.124. Although not reflected in the parallel Part B regulation
(Sec. 300.142(h)(2)), this policy applies equally to insurance payments
received by a State under both Parts B and C.
If a State, however, uses State funds from a State public insurance
source, such as the State share of Medicaid costs, for early
intervention services, those State funds are treated the same as all
other State funding sources for purposes of the supplanting test, i.e.,
they must be counted as part of total State and local spending for
early intervention. Income from family fees, on the other hand, would
not be part of State and local spending for purposes of Sec. 303.124.
Finally, this proposed regulation adds Sec. 303.519(d), governing
the use of Part B funds for infants and toddlers. This proposed
paragraph would require a State policy in order to use Part B funds to
serve infants and toddlers. Currently several States do use Part B
funds, in addition to their Part C funds, to serve infants and
toddlers. Without a policy, however, as to which children will be
served with Part B funds, it is impossible for the Department to
monitor (or for the State to monitor at the local level) whether
infants and toddlers for whom Part B section 611 funds are spent in
fact are receiving everything they are entitled to under both Part B
(including a free appropriate public education) and Part C, as
required.
In proposed Sec. 303.519(d), the State policy would need to--(1)
assure that infants and toddlers receiving services paid for with Part
B funds receive a free appropriate public education in accordance with
all Part B requirements; and (2) specify what category, age group, or
other segment of all eligible infants and toddlers will be served with
Part B funds and therefore receive FAPE. Under this second requirement
(in proposed Sec. 303.519(d)(2)), it would not be acceptable, for
example, for a State to submit a number indicating how many children
would be served, based on the amount of Part B section 611 funds
available; States must designate a specific identifiable subgroup of
eligible children (e.g., all two-year-olds, or all two-year-olds with
deaf-blindness). In the case of section 619 funds, the State would
identify whether all two-year-olds who turn three during the school
year will be served, or which group will be served if it is to be fewer
than all.
Proposed Sec. 303.519(d)(1)(ii) and (iii) reflect statutory
requirements and longstanding Department policy. First, whenever funds
received under IDEA section 611 are used for infants and toddlers,
requirements of both Parts B and C apply with respect to serving those
children. While Part B applies because of the use of Part B funds, Part
C applies for all States that apply for and receive Part C funds,
because all eligible infants and toddlers are covered by Part C,
regardless of the funding sources used for a particular child,
[[Page 53821]]
except if IDEA section 619 funds are used. Second, if funds under
section 619 are used, which is permissible under the statute for two-
year-olds who will turn three during the school year, the statute
requires that only Part B applies, and not Part C (IDEA section
619(h)).
A related provision regarding the use of Part B funds is added in
proposed Sec. 303.520(c)(3). (See discussion later in this preamble).
Proposed Sec. 303.519(e) adopts the ``construction'' phrase from
the Part B regulations, 34 CFR 300.142(i).
System of Payments Provisions
Proposed Sec. 303.520 describes a system of family payments used by
a State to finance early intervention services, and the requirements of
the corresponding State policy. A system of payments is a written State
policy that--(1) meets the requirements of proposed Sec. 303.520, and
(2) describes the fees or costs that will be borne by families who
receive services under the State's early intervention system.
A system of payments may not include payments by an insurance plan,
whether public or private, as opposed to payments by a family to access
the benefits of the plan. Parties in some States have argued that a
State can include, as part of a system of payments, actual benefits
paid by an insurance plan (and require families to assign benefits to
the State). The statute, however, specifies a ``system of payments by
families,'' which does not include an insurance plan payment to a
State.
Thus, in a State with a system of payments, e.g., a sliding fee
scale, while parents can meet their State fee obligation in any way
they choose, including using their insurance to pay the fee, a State
could not, under this proposed regulation, require parents to access
their insurance plan (i.e., require parents to assign benefits to the
State or provider) as part of its ``system of payments.'' Although
insurance benefits paid by a plan can not be considered part of a
system of payments, they are an important source of funding for early
intervention services, as recognized by this proposed regulation.
Proposed Sec. 303.520(a)(2) states that it is the lead agency's
duty to ensure compliance with the State system of payments. Under Part
C, unlike Part B, the lead agency is the grantee as well as the program
administrator; there are no subgrants. Although the lead agency may
enter into contracts or make other arrangements for providing services,
it retains all of its responsibilities as grantee (see Secs. 303.500
and 303.501). Thus the responsibility for oversight of fees, whether
local or State-imposed, rests with the lead agency.
Under proposed Sec. 303.520(b), a system of payments may contain
one or both of the two types of applicable fees--(1) fees established
under State law specifically for early intervention services, such as
sliding fee scales; and (2) cost participation fees (e.g., co-pay or
deductible amounts) required under existing State or Federal law to
access State or Federal insurance programs in which the family is
enrolled.
The first type of fee is one established for the early intervention
system, as opposed to fees that are broader in scope, such as Medicaid
fees. This first type of fee includes the sliding fee scales based on
family income that are currently in use in many States. Although a
sliding fee is more equitable than a flat fee (which penalizes lower-
income families more heavily), States have discretion, under this
proposed regulation, as to the type of fee they implement.
The statute, however, specifically states that a system of payments
is to be established under ``Federal or State law * * *'' To be
established under ``State law,'' the system must be codified in State
statute or otherwise have the force of law; a policy that is included
with a State's Part C application but not codified does not qualify.
The actual dollar amounts need not be codified, as that can change, but
the basic payment system must be authorized or enacted by State law.
Thus, a State may already have in existence a sliding fee scale for
early intervention services; if part of State law, that fee scale would
fall under the description in Sec. 303.520(b)(1), and be part of a
State's system of payments. The State would need to ensure, however,
that its written policies include the information required in proposed
Sec. 303.520(c) and (d).
Under ``Federal law,'' some public insurance programs such as
Medicaid, CHIP, and TRICARE, may include various forms of family cost
participation, such as co-payments or deductible amounts. Under
Sec. 303.520(b)(2), if a State wants to access the benefits of public
insurance programs for covered families needing early intervention
services under Part C, and wants families to pay the applicable co-pay
or deductible amounts, the State could designate, as part of its system
of payments, those required fees as part of its system of payments.
As proposed Sec. 303.520(c)(2) makes clear, however, such fees,
even though included by a State in its system of payments, can not be
applied to a family that is unable to pay the fee (current
Sec. 303.521(b)(3)(ii), proposed Sec. 303.520(c)(2)), or for a service
that must be at no cost, such as service coordination (current
Sec. 303.520(b), proposed Sec. 303.520(c)(1)).
In addition, under this proposed regulation, it is entirely
optional for a State to include public insurance access fees in its
system of payments; under proposed Sec. 303.521(e), States may choose
to use Part C funds to pay such co-pay or deductible amounts for
families, as an incentive for families to agree to access their
insurance for early intervention purposes. Such use of Part C funds
does not violate the ``payor of last resort'' requirement under Part C
of IDEA.
Proposed Sec. 303.520(b)(2) applies not only to Federal public
insurance programs (such as Medicaid), but to State-funded, non-Federal
insurance plans as well, as long as the payments are required by State
law. Again, while there is no requirement that the exact dollar amount
be specified in a State or Federal statute, proposed Sec. 303.520(b)(2)
covers programs for which State or Federal law authorizes or requires
family payments.
Proposed Sec. 303.520(c) requires (through Sec. 303.520(d)(1) and
Sec. 303.173) a State with a system of payments to submit an assurance
that no fees will be charged in three different situations. This
paragraph contains provisions taken from current Secs. 303.520,
303.521(b), and 303.521(c), collecting in one place the circumstances
under which States may not charge any fees for services. It would also
clarify that those situations overrule the existence of a system of
payments. For example, in a State with a system of payments, if a
family is unable to pay the fee, or if a service must be at no cost to
parents, such as service coordination, the State may not apply its fees
in that situation.
Proposed Sec. 303.520(c)(1) contains the exact language as current
Sec. 303.521(b), with the title ``Functions not subject to fees''
changed to ``Functions at public expense.'' This provision lists the
State functions that, under longstanding Part C regulations, must
always be at no cost to the family: Child find, evaluation and
assessment, service coordination, IFSP development, and implementation
of the statewide system, including procedural safeguards.
Proposed Sec. 303.520(c)(2) contains the rule from current
Sec. 303.520(b)(3)(ii) concerning a family's inability to pay. Proposed
Sec. 303.520(c)(3) is derived from current 303.521(c), and clarifies
it. Under this provision, ``birth-mandate States'' may not charge fees,
unless the fees are for services that are not part of
[[Page 53822]]
FAPE. For example, if a State has a law guaranteeing FAPE from birth,
and a particular child's IFSP contains additional, non-FAPE services
such as respite care, the family could be charged under a sliding fee
scale only for those non-FAPE early intervention services.
The use of Part B funds is also addressed in proposed
Sec. 303.520(c)(3), in response to many commenters' requests to address
the use of Part B funds for early intervention services. These
commenters requested that States be permitted to establish sliding fee
scales, even though the State uses Part B funds to pay for some early
intervention services. Proposed Sec. 303.520(c)(3) therefore applies to
a State that uses Part B section 611 funds for infants and toddlers in
accordance with proposed Sec. 303.519(d) (State policy regarding use of
Part B funds). A State may still establish a State system of payments,
even if it uses Part B section 611 funds to pay for some services for
infants and toddlers. However, the State may not charge fees for any
service that is part of a child's free appropriate public education,
which is required whenever Part B funds are used. All of the
requirements of Part B, including ``at no cost,'' apply whenever Part B
funds are used. A State, therefore, would need to distinguish between
those services that are part of a child's FAPE, to which the fee scale
would not apply, and other services. If a State uses funds under
section 619 for two-year-olds who will turn three during the school
year, no fees are permitted because only Part B, and not Part C
applies.
Proposed Sec. 303.520(d) contains the requirements for State
policies in States that have a system of payments. States have always
been required to submit, with their applications, policies regarding
funding of services, including any fee system (Secs. 303.173 and
303.520). Proposed Sec. 303.520(d), however, would add clarity and
detail to those required policies, for those States that do not include
this detail currently, to ensure that the public is fully aware of and
understands the State's system of payments by families.
Several of the requirements in proposed paragraph (d) are in
existing Sec. 303.520. Proposed paragraph (d)(4) adds a requirement
that the State include in its policies its criteria for judging
``inability to pay.'' Although the basis for that determination is left
to the States, this provision would require that the State take into
consideration applicable family expenses, using the best available
data. We expect that ``applicable'' expenses would include, at a
minimum, the family's documented and unreimbursed expenses related to
the eligible child's disability. In other words, family income would be
discounted by the family's expenses for the child, that are due to the
disability.
States are free, however, to use criteria that deduct more expenses
from income. For example, for reasons of convenience, a State may
choose to use families' Federal income tax returns and judge all
families by ``taxable income,'' from which medical expenses have
already been deducted. States may also use other methods of judging
income, such as using families' existing documentation from other aid
programs. As a general rule, the same standard should be used for all
families throughout the State, although a State may choose to take into
consideration extraordinary circumstances (for example, a family whose
house just burned down may not have the ``ability to pay'' that appears
on paper).
After analyzing the family's finances, the State may apply a
threshold amount, for example, 150% of the poverty level, below which
families are deemed ``unable to pay.'' We invite comments on how States
would implement this proposed regulatory requirement in a practicable
way, and how it compares to current practice in States with fee scales.
We also invite comment on whether the scope of this provision is
appropriate, or whether it should be more limited in the scope of
family expenses that are taken into account (for example, whether
expenses should be limited to those that result from the eligible
child's disability).
Proposed Sec. 303.520(d)(5) applies to States that have a fee scale
specifically for early intervention services (as described in proposed
Sec. 303.520(b)(1)). Proposed Sec. 303.520(d)(5)(ii)(A) states that a
fee scale established by a State for early intervention services can
not take into account whether or not a family has insurance. Apparently
some States with sliding fee scales have been placing families on the
top of the fee scale if they have private insurance, without regard to
family income. This practice penalizes the family for having insurance,
while the family may not in fact have the resources to pay such a high
fee, or may not wish to use their insurance because of the associated
long-term costs. To enable the family to have an actual choice between
a State fee and using their insurance (see proposed Sec. 303.521(b)),
States must set their fees without regard to what a family's insurance
might pay.
In proposed Sec. 303.520(d)(5)(ii)(B), the same requirement of
taking into account family expenses as in proposed Sec. 303.520(d)(4)
(``inability to pay'') would apply to the determination of a family's
position on a sliding fee scale.
Proposed Sec. 303.520(e) discusses procedural safeguards regarding
payments by families. States with a system of payments must give
families written notice of their applicable policies on the matters
covered in Sec. 303.520, which includes the services that must be at no
cost, the types of fees in the State's system, and the State's
guidelines for ``inability to pay,'' so that families are aware of
their rights.
The notice required by proposed Sec. 303.520(e) may be incorporated
into the notice given to the families under Sec. 303.403, or the State
may create a separate notice for this purpose. The notice must be
given, however, before services begin, and cannot delay the provision
of services.
Proposed Sec. 303.520(e)(3) clarifies a family's options for
contesting a fee imposed, or contesting a State's determination of the
family's ability to pay. Families have the right in these circumstances
to file for a due process hearing, agree to mediation, or file a State
complaint.
Some States have offered parents an additional option, designed by
the State, in order to resolve more quickly these financial issues.
Because the State-designed options are often less formal, less time-
consuming, and less expensive than the existing options under this
part, States are encouraged to offer their own process. However, State
remedies may not delay or deny a parent's procedural rights under Part
C and its implementing regulations. Thus, a State could not require
parents to use its own process as a precondition before filing a State
complaint or requesting a due process hearing. The State must include
these redress rights in its notice to parents.
Section 303.521 (Fees) would be amended by deleting the section in
its entirety, and replacing it with a proposed new Sec. 303.521,
entitled, ``Use of insurance,'' as described in the following
paragraphs:
Use of Insurance
Proposed new Sec. 303.521 addresses a State's use of families'
public and private insurance in funding Part C services. Under this
proposed regulation, States would have the following options:
(1) Having no system of payments and providing services at no cost
to parents. States would need parental consent for use of private
insurance or for use of public insurance where there is a cost to the
family.
(2) Having a system of payments and, if it includes a sliding fee
scale, giving
[[Page 53823]]
parents the option of paying the applicable fee or fees or using their
private insurance.
The Department had proposed provisions on the use of private
insurance in its October 22, 1997, Notice of Proposed Rulemaking (NPRM)
(see 62 FR 55026-55123, 34 CFR 303.520(d)). In that NPRM, the
Department requested comments on the proposed provision and on the
related issue of public insurance proceeds. The final regulations
published on March 12, 1999 did not contain the insurance provision.
Instead, the preamble noted that ``the policy will not be finalized
until more thorough examination of the issues can be done through the
process initiated by the April 14 and August 14, 1998 solicitations for
comments, and in light of the specific Part C statutory language and
framework.'' (64 FR 12655, March 12, 1999).
During that review process, many groups and individuals submitted
comments regarding the use of insurance by States' early intervention
programs. In addition, in the Department's administration and
monitoring of Part C, it has found confusion and inconsistency
surrounding issues of State financing of early intervention services,
particularly regarding the use of sliding fee scales and use of
families' insurance. There is a great need for guidelines and clarity
as to the legal limits in this area. The provisions in proposed
Sec. 303.521, therefore, are the result of examining the
recommendations of commenters; of weighing the costs and benefits to
families and to States of the various possible interpretations of the
statute; and of determining the most sound policy consistent with the
language and purposes of the Part C statute.
The Department's past policy with regard to States' use of
insurance is reflected in several Part C policy letters as well as in
the October 22, 1997 NPRM provision. Under that policy, States were not
permitted to access a family's private insurance without consent if
such use would entail costs to the family.
As pointed out by many of the commenters, the statutory language
for Part C is different from Part B's ``at no cost'' requirement. Under
Part C, services must be ``provided at no cost, except where Federal or
State law provides for a system of payments by families, including a
schedule of sliding fees.'' IDEA section 632(4)(B).
The statute also makes clear that Part C funds are to be ``payor of
last resort;'' all other available funds from public or private sources
are to be used first. See IDEA section 640(a). Many commenters pointed
out what they perceive to be a conflict between the ``payor of last
resort'' requirement and the ``no cost'' requirement. In States where
there is no system of payments, for example, and the use of a family's
private insurance would entail costs for the family, then to require
use of that insurance would violate the ``no cost'' requirement, while
to use Part C funds and not the insurance would appear to violate the
``payor of last resort'' requirement. (Under Departmental policy,
however, a State does not violate ``payor of last resort'' if it uses
Part C funds after making all reasonable attempts to secure other
funding, including when parents decline to use insurance.)
The history and purpose of Part C (then Part H) provides support
for the Department's attempt to balance these two policies; while the
statute provides for a system of payments, the legislative history
shows that Congress was also concerned that parents be protected from
costs. See Sen. Rep. 99-315 at 11 (99th Cong. 2nd Sess. (1986)).
Clearly, Congress intended that the funding of early intervention
services through private and public insurance would continue when it
enacted Part C. What apparently was not envisioned, however, was the
type of catastrophic financial losses that some families have suffered
through use of private insurance for early intervention services, such
as reaching lifetime caps when a child is still young, with no further
insurance coverage available for the child.
The goal of these proposed regulations, therefore, is to assist
States in their responsibility to maximize various financial resources,
using Federal Part C dollars only as a last resort, while protecting
parents from overly burdensome costs that can make early intervention
services prohibitive for families.
Proposed Sec. 303.521(a) contains the same prohibition as in Part B
against forcing families to enroll in a public insurance program, such
as Medicaid, as a condition of receiving services. The Department
received comments both supporting and opposing this policy for Part C.
Although it is true, as stated by several commenters, that if States
are prevented from requiring families to enroll in Medicaid, they lose
a potential funding source, that source was not a preexisting one for
that family, and some families have reasons (cultural, privacy etc.)
for not wanting to enroll in such public insurance programs. Moreover,
if a child, otherwise deemed eligible for Part C services by the State,
were denied services because the State wanted the parents to enroll in
Medicaid and the parents refused, this would effectively add an
additional eligibility test for the child that is not justified by the
statute. For families already enrolled, however, or who voluntarily
enroll in public insurance programs, States may access that insurance
to finance early intervention services, as provided in proposed
Sec. 303.521(b).
Proposed Sec. 303.521(b) addresses a State's use of a family's
public insurance. Many commenters suggested that, in States that ensure
services at no cost to families (or without a system of payments),
States be prohibited from requiring parents to use public or private
insurance. This policy does not permit States, however, to optimize
resources and use Part C funds as ``payor of last resort'' where there
is no cost to the family, as may be the case with public insurance. As
many other commenters noted, if deprived of the ability to access these
insurance resources, States could find it difficult financially to
continue in the Part C program.
Proposed Sec. 303.521(b) applies in States with or without a system
of family payments. It provides that States can require that families
access their public insurance, whether it be Federal or State, as long
as there is no cost to the family.
Under proposed Sec. 303.521(b)(1)(ii), a State that wishes to
access a family's public insurance proceeds may require the parents to
incur out-of-pocket costs such as co-payments and deductibles under
those public insurance programs, only if such costs are included in a
system of payments under Sec. 303.520(b)(2). Even in those States in
which such payments are included, however, parents are still protected
from such costs if they are unable to pay (which may be likely for many
Medicaid families), or under any of the other circumstances listed in
Sec. 303.520(c).
The State may also choose to use Part C funds to pay the co-pay or
deductible amounts, as provided in proposed Sec. 303.521(e), as an
incentive for families to agree to access their insurance for early
intervention purposes. For parents choosing the option of using their
private insurance (proposed Sec. 303.521(c)), and for parents with
private insurance in a State with no system of payments, this may help
the State in obtaining parent consent to use the insurance.
In proposed Sec. 303.521(b)(1)(iii), the Department proposes the
same criteria for a ``cost'' to families as in the Part B provision on
public insurance (34 CFR 300.142(e)(2)(iii)). We particularly invite
comment on whether these criteria are
[[Page 53824]]
equally applicable to families with infants and toddlers.
In the majority of cases, use of Federal, State, or local public
insurance programs by a State to provide or pay for a service to a
child will not result in a current or foreseeable future cost to the
family or child. For example, under the Early Periodic Screening,
Diagnosis and Treatment (EPSDT) program of Medicaid, potentially
available benefits are only limited based on what the Medicaid agency
determines to be medically necessary for the child and are not
otherwise limited or capped. Many infants and toddlers with
disabilities who are eligible for public insurance programs are
eligible for services under the EPSDT program. Where there is no cost
to the family or the child, States are encouraged to use the public
insurance benefits to the extent possible.
The language in proposed Sec. 303.521(b)(1)(iii)(D) has been
changed from the corresponding Part B provision, to read ``risk loss of
eligibility for, or decrease in benefits under, home and community-
based waivers * * *'' to more accurately reflect the common problem for
families of children who are covered under such waivers, that was
intended to be addressed by the Part B language.
Proposed Sec. 303.521(b)(2) further provides that, if any of the
listed costs apply, the State may still access the family's public
insurance if it first obtains written consent under the provisions in
Sec. 303.401.
Proposed Sec. 303.521(b)(3) addresses the relatively small number
of families who are covered by both public and private insurance. Under
this provision, in States without a system of payments, in order to
access the family's private insurance the State must follow the consent
requirements in proposed Sec. 303.521(d). Thus, if a Medicaid-enrolled
child also is covered by private insurance, the State without a system
of payments must choose one of two options--either obtain the parent's
consent to use the private insurance, or not use Medicaid to provide
the service. One way the State might be able to obtain that consent
would be to offer to cover the costs that would normally, under
Medicaid, be assessed against the private insurer. Part C funds can be
used for this purpose. (See proposed Sec. 303.521(e)).
Proposed Sec. 303.52l(b)(4) provides that, for States with fee
scales, the State cannot bill a family's public insurance for more than
the cost of the service, and can not bill for any amounts for which the
parents are responsible under the fee scale. Thus, if a State's fee
system charges a family a fee equal to one-third the cost of the
service, the State can only bill the Medicaid or other public insurance
for the remaining two-thirds.
For private insurance, many commenters suggested, as a way to
balance the competing interests of the State's ``payor of last resort''
responsibility and the ``at no cost'' provision of the statute, that in
States with a system of payments, States should first determine what
the family has to pay, then let the parents decide whether to use their
private insurance or pay the fee. This policy of parental choice, which
is consistent with the Department's past Part C policy on private
insurance, has been adopted and proposed as Sec. 303.521(c) for those
States that have, under State law, fees specifically for early
intervention services, as described in proposed Sec. 303.520(b)(1).
For such States, proposed Sec. 303.521(c) would govern their
treatment of all families who have private insurance. Under this
provision, the State gives the family the option of accessing the
insurance or paying the applicable fee directly. Some families with
private insurance, want to avoid long-term negative consequences of
using that with private insurance, such as exceeding a lifetime cap or
risking cancellation of insurance; these families may prefer to pay the
applicable fee without using their insurance. Other families may not
have such extreme risks from using insurance, or are able to negotiate
with their insurance company and determine an amount the company will
pay that will avoid these risks. The State can assist families with
this process, either by giving the duty to service coordinators, under
proposed Sec. 303.302(d)(8), or by otherwise providing for such
assistance under the proposed revision to Sec. 303.3 (``Use of
Funds'').
If a family opts to pay the fee, the State cannot then also access
the family's insurance to cover the remaining cost of the service,
unless the family gives consent. Similarly, if a family opts to use its
insurance but the insurance does not cover the entire cost of a
service, the State could only require the family to pay the uncovered
portion up to but not exceeding the amount of the State fee. Families
with no insurance would be required to pay the exact amount of the
applicable fee (subject to the ``ability to pay'' requirement), and
States could not apply a different standard or different fee scale for
families with insurance.
When giving parents the option described in proposed
Sec. 303.521(c), the protections in Sec. 303.520(c) apply. Thus a
family that has private insurance may be ``unable to pay,'' under the
State's definition of that term, and the option would not apply to that
family. Services would then be at no cost to the family and the State
would need consent to access the family's private insurance (under
proposed Sec. 303.521(d)).
Proposed Sec. 303.521(c) would require States to give parents this
option for ``each service'' for which the State charges fees, rather
than for each incidence of a service. Thus, when the IFSP is first
written, and thereafter for any change in the frequency or type of
service, the State would need to give the parents this option. If the
parent's insurance does not cover a particular IFSP service, the family
pays the applicable fee for that service.
The policy that families cannot be forced to use their private
insurance, in States with no system of payments, has been adopted in
proposed Sec. 303.521(d). This provision also applies in States with a
system of payments, for situations covered under Sec. 303.520(c) (when
fees may not be charged), and in States whose system of payments
includes only public insurance co-pays or deductibles (fees described
in Sec. 303.520(b)(2)). This provision therefore applies in all
circumstances except that of a State with a system of payments that
includes fees described in Sec. 303.521(b)(1), such as a sliding fee
scale.
Under this provision, if a State has no system of payments (and in
the other applicable circumstances), the State is prohibited from using
a family's private insurance without the parent's consent. The
provisions governing this consent are the same as the parallel
provision in Part B, Sec. 300.142(f). The Part B provision requires
parental consent for any use of private insurance, because all services
must be at no cost to the family, and use of private insurance entails
costs. Similarly, for Part C in a State without a system of payments,
services are at no cost and the State must obtain consent to use
private insurance.
Under proposed Sec. 303.521(d), a State needs parental consent for
using the family's private insurance for each separate service in a
child's IFSP. For example, if at an IFSP meeting the State wants to
access the family's insurance for only the child's physical therapy,
which is to be provided twice a week, the State obtains parental
consent for that use. If, at a subsequent IFSP review, the physical
therapy service is changed to three times per week, the State must
obtain new written consent from the parents; they need not obtain
consent for every session of each service. This
[[Page 53825]]
policy is consistent with the intended meaning of the corresponding
Part B provision, Sec. 300.142(f)(2), but because its wording (``Each
time the public agency proposes to access * * *'') has caused
confusion, we propose more detailed language in this Part C provision.
This proposed treatment of private insurance should not lead to a
burdensome change in existing practice among the States. The
Department's past policy required, for all States, consent when there
is a cost to the family (and in practice there appears to be virtually
always some cost). Under the proposed rule, only States without fees
such as sliding fees would be required to obtain consent; States with a
system of payments that includes sliding fees would give families the
option described in proposed Sec. 303.521(b).
States are encouraged, however, to access all available sources of
funding, using Part C funds as a last resort. To this end, some States
have worked to increase the amount of funding by public and private
insurers, by taking steps such as negotiating for changes in their
State's Medicaid plan, passing State legislation governing private
insurers, and working with families to negotiate with, or clarify the
limitations of, private insurance coverage.
This regulation would make clear, in proposed Sec. 303.521(e),
``Use of Part C funds,'' that a State is able to use Part C funds to
pay the cost that would otherwise be covered by a third party payer, in
order to access the family's insurance. Proposed Sec. 303.521(e)
contains language taken from the Part B regulations at Sec. 300.142(g).
If the State fails to obtain parental consent for use of private
insurance (or public insurance where costs are involved), the State may
use Part C funds for the service. In such a situation the State does
not violate the ``payor of last resort'' provision because it has first
taken all reasonable steps to secure alternate funding sources. This
provision also would provide, as in Part B, that to make it easier for
parents to consent to private insurance use (or to choose to use public
insurance), a State may use Part C funds to pay co-pay or deductible
amounts. This practice can also assist States in situations in which
services must be at no cost to the family, due to any of the
circumstances described in proposed Sec. 303.520(c); by using Part C
funds to pay the family's required co-pay or deductible amount, the
State avoids a cost to the family.
Other Changes to Subpart F
Section 303.523 (Interagency agreements) would be amended in
several ways. First, the language in Sec. 303.523(a) would be clarified
to require the lead agency to enter into an interagency agreement with
any other State-level agency involved in the State's early intervention
program, whether that involvement is through provision of services or
through funding to entities that use those funds for early intervention
purposes.
Second, the substance of the note following Sec. 303.523 would be
added to the text of the regulations as proposed new
Sec. 303.523(c)(2), and the note would be deleted. The substance of the
note clarifies that, with respect to resolving intra-agency and
interagency disputes, a State may meet the requirement in any way
permitted under State law, including (1) providing for a third party
(e.g., an administrative law judge) to review the dispute and render a
decision; (2) assignment of the responsibility by the Governor to the
lead agency or Council; or (3) having the final decision made by the
Governor. This change would strengthen the provision regarding dispute
resolution in paragraph (c)).
Finally, paragraph (d) of Sec. 303.523, regarding additional
components of agreements, would be revised to reference three specific
topics that should be addressed if appropriate and relevant to the two
agencies: transition, policies on payment for services, and child find.
Regarding transition, current Sec. 303.148(c) (proposed
Sec. 303.148(f)) requires a lead agency that is not the State
educational agency (SEA) to have an interagency agreement with the SEA
that ensures coordination on the transition of eligible children to
Part B services; proposed Sec. 303.523(d) should reference that
requirement.
Similarly, proposed Sec. 303.523(d)(2) would reference the
requirement in current Sec. 303.520 (proposed Sec. 303.519(a)(2)) that
policies related to payment for services must be reflected in the
appropriate interagency agreements. This includes both policies on
family payments, and payments by other agencies, as specified in
Secs. 303.173 and 303.522. Thus, if a State adopts a system of payments
that involves Medicaid co-payments, that policy must be in the
interagency agreement with the State Medicaid agency. The use of funds
or the provision of services would be relevant topics for an
interagency agreement between the lead agency and any other State
agency that provides either funding or services for early intervention
purposes (e.g., a Health or developmental disabilities agency, or a
State Department of Education providing Part B funds).
The third topic, child find, is proposed as optional for the lead
agency to include in its interagency agreements, although States are
encouraged to do so. Child find may be an appropriate issue to include
in agreements between the lead agency and most other relevant State
agencies.
The proposed changes to Secs. 303.173 and 303.523 are intended to
strengthen the regulatory requirements on interagency cooperation. The
Secretary has found, through monitoring, that many States' early
intervention systems suffer from a lack of interagency cooperation, to
the detriment of infants and toddlers with disabilities and their
families. The interagency requirements of Part C are crucial to
implementing an actual statewide system that pulls together the various
existing efforts in the State.
The Secretary has found, in some States, that political or ``turf-
war'' differences keep agencies from working together or even
communicating; in others, it is only the lead agency's lack of effort
that keeps agencies from coordinating. Although the Department is aware
that the existence of a written agreement between agencies does not
ensure that it will be implemented, the fact that specific elements
would be required in the agreement should cause the necessary
discussions to take place, greatly increasing the chances of actual
cooperation.
Subpart G--State Interagency Coordinating Council
Section 303.653 (Transitional services) would be amended by making
technical changes to improve the clarity and readability of the
section, including--(1) changing the title of the section to
``Transition services;'' (2) replacing ``toddlers with disabilities''
with ``eligible children under this part;'' and (3) adding
``preschool'' before ``services under Part B.''
Executive Order 12866
1. Potential cost and benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those we have
determined as necessary for administering this program effectively and
efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of this regulatory action, we have determined that the
benefits would justify the costs.
We have also determined that this regulatory action would not
unduly
[[Page 53826]]
interfere with State, local, private, and tribal governments in the
exercise of their governmental functions.
Summary of Potential Costs and Benefits
These regulations have been reviewed in accordance with Executive
Order 12866. Under the terms of the order, the Secretary has assessed
the potential costs and benefits of this regulatory action.
Benefits and Costs of Statutory Changes
Following is an analysis of the costs and benefits of the most
significant changes in the regulations for the Grants for Infants and
Families program (Part C). In conducting this analysis, the Department
examined the extent to which changes made by these proposed regulations
add to or reduce the costs for State lead agencies and others as
compared to the costs of implementing Part C under the previously
published regulations. Variation in practice from State to State makes
it hard to predict the effect of these changes. However, based on this
analysis, the Secretary has concluded that the changes included in
these regulations will not, on net, impose significant costs in any one
year. An analysis of specific provisions follows:
Section 303.341--Policies and Procedures on Natural Environments
Section 303.341 of the proposed regulations clarifies that
decisions on natural environments, and any justifications needed, are
made by the IFSP team and are made separately for each service to be
provided to the child. It also clarifies that services may be provided
in a setting other than a natural environment, such as a center-based
program or other setting appropriate to the age and needs of the child,
if appropriately justified based on the child's needs. Over 200 of the
328 comments received by the Department on the Part C regulations
expressed concern about the provisions related to natural environments.
Questions raised by many of these commenters indicated that there is
confusion as to what is required and that the provisions were being
misinterpreted to mean that services could only be provided in the home
of an eligible child or in community settings in which children without
disabilities participate. No cost impact is assigned to this
clarification since the provisions do not represent a change in policy
or impose new substantive requirements. However, the proposed
clarification should benefit both families and providers by making it
clear that services may be provided in settings other than the natural
environment if the IFSP team determines that this is necessary to meet
the needs of the child.
Section 303.519(a)--Policies Related to Payment for Services
Section 303.519(a) clarifies that a State without a system of
payments must have a policy stating that all services are at no cost to
parents. Office of Special Education Programs (OSEP) monitoring
activities indicate that some States, local agencies, and local
programs are charging for services, even though the State has not
adopted a system of payments. Current IDEA section 632(4)(B), which is
the same as prior section 672(2)(B), provides that services must be
``provided at no cost, except where Federal or State law provides for a
system of payments by families, including a schedule of sliding fees.''
Because this change in the regulations is a clarification of, rather
than a change in the law, no cost impact is assigned to this
requirement.
Section 303.519(c)--Nonsupplanting Requirement
Under proposed Sec. 303.519(c)(3), the provisions of current
Sec. 303.520(d)(2) would be revised to clarify that, in addition to
reimbursements from Federal funds, if a State receives and spends
payments from private insurance plan, those funds are not considered
``State and local funds'' for purposes of the nonsupplanting
requirements in Sec. 303.124. This provision provides a benefit to
States by alleviating them of the requirement to align State funding
with reimbursements for services rendered from private insurance that
will fluctuate from year to year depending on factors such as the
number of parents who have private insurance, whether the particular
services provided are eligible for reimbursement, and variation in
reimbursement rates. Those factors are not under the control of the
State agency and are not budgeted items.
Section 303.519(d)--Use of Part B Funds
Section 303.519(d) would require States proposing to use funds
under Part B to serve infants and toddlers to have a written policy
regarding the use of Part B funds that identifies the age range or
other characteristics of the groups to be served. A written policy is
necessary in order for OSEP to monitor the States and the States to
monitor at the local level to ensure that children for whom Part B
funds are spent are receiving everything they are entitled to under
both Part C and Part B, including a free appropriate public education.
Since States have the discretion to decide whether to use Part B funds
for this purpose, this provision will not result in increased program
costs. The provision may impose a short-term administrative burden on
States that choose to use Part B funds for infants and toddlers with
disabilities and do not currently have a written policy on the use of
these funds for this purpose. However, we believe that most States
would develop a written policy for administrative reasons, regardless
of the existence of this requirement. In addition, the short-term
burden of developing a written policy is offset by the long-term
positive benefit derived from having a written policy. A clear policy
will help reduce confusion among State and local education agencies as
to which children will be served with Part B funds, and reduces the
potential for costly audit findings regarding the proper use of Part B
funds. States, at their discretion, may also use Part B Preschool
Grants program funds to provide a free appropriate public education to
two-year-olds who will turn 3 during the school year. IDEA, section
619(h) provides that, if a State uses Part B Preschool Grants funds for
two-year-olds in this instance, only Part B applies. According to a
May, 1999 ``section 619 Profile'' study by the National Early Childhood
Technical Assistance System (NECTAS), as of fiscal year 1999,
approximately 22 States had developed or were developing policies on
the use of Preschool Grant funds for these children.
Section 303.520(b)--Establishment of a System of Payments in State Law
or Regulation
Proposed Sec. 303.520(b) specifies that a system of payments may
contain either fees established specifically for early intervention or
participation fees required to access State or Federal insurance
programs. This proposed paragraph further provides that the system of
payments must be established under State law and the participation fees
authorized or enacted by State or Federal law. This provision is being
added to the regulations to ensure that States are aware of and have
fully considered policies that will have cost implications for State
agencies and consumers, reduce the potential for arbitrary changes in
policy, and improve the ability of the Federal Government to monitor
compliance. It will also provide more clarity for families, and policy
makers as to which fees, if any, families must pay under the State's
early intervention system and reduces
[[Page 53827]]
potential confusion over which policies must be authorized by State
statute or regulations versus those that can be issued
administratively. To date, a total of 49 of the 56 Part C lead agencies
reported information for fiscal year 2000 on the status of their
systems of payment. This data indicates that 18 of these States have
policies related to systems of payment. Of these States, 16 had
policies established under State law or regulations. Currently it
appears that only two States would be affected by this change. We
believe that the benefits described above will offset any burden
associated with establishing these policies in State law or regulations
that may be experienced by these two States or other States deciding to
adopt systems of payment in the future. The requirement also will
result in consistent practice among all the States.
Section 303.520(c)(3)--States That Provide FAPE to Infants and Toddlers
With Disabilities
Currently, eleven of the 56 States and Outlying Areas have
legislation requiring that FAPE be provided to some or all children
with disabilities beginning at birth, and an additional State requires
that FAPE be provided to children with disabilities beginning at age 2.
Section 303.521(c) of the current regulations provides that States with
mandates to serve children from birth may not charge parents for any
service required under that law that are provided to children under
Part C. New Sec. 303.520(c)(3) replaces Sec. 303.521(c) and modifies
that provision to clarify that the State may establish a system of
payments for other services that are not a part of FAPE. Similarly,
this new provision also specifies that, if a State uses Part B section
611 funds to pay for some services for infants and toddlers, the State
may still establish a system of payments for services that are not part
of a child's free appropriate public education. These changes clarify a
State's ability to charge for services that are not required to be
provided free of charge under the FAPE requirements. Because most Part
C services would also be FAPE services, these changes should result in
very little shifting of costs between State agencies and families.
Section 303.520(d)(4)--Criteria for Judging Inability To Pay
The current regulations at Sec. 303.520(a)(3)(ii) specify that,
``The inability of the parents of an eligible child to pay for services
will not result in the denial of services to the child or the child's
family.'' Proposed Sec. 303.520(d)(4) adds a requirement that States
with a system of payments must include their criteria for judging
``inability to pay'' in their policies submitted to OSEP. Most of the
approximately 18 States that have systems of payment do not currently
include their guidelines for judging ``inability to pay'' in their
policies submitted to OSEP. We believe these criteria should be part of
the official, public policies of the States to ensure that the criteria
are administered uniformly, parents know what criteria are being used
to determine their ability to pay, and the requirement is efficiently
administered and monitored. The resultant burden to the State in
developing or submitting criteria for judging inability to pay is
minimal compared to the anticipated benefit of having clear guidelines
for families and providers affected by this provision.
Sections 303.520(d)(4) and 303.520(d)(5)(ii)(B)--Consideration of
Applicable Family Expenses
Proposed Sec. 303.520(d)(4) on judging ability to pay, and
Sec. 303.520(d)(5)(ii)(B) on sliding fee scales would require that
States take into consideration applicable family expenses, using the
best available data. The cost to States of this change is indeterminate
because States will have flexibility to determine how they will address
this requirement, including the extent to which expenses would be
considered in determining the family's ability to pay. While we expect
that there may be some cost to States, the Department believes that
there is a direct offsetting benefit to society by ensuring that
families are not unduly burdened or that children with disabilities are
not denied services because extraordinary expenses were not considered
in the calculation of whether the family has the ability to pay. We
further believe that this benefit to families outweighs any potential
administrative burden or cost to the State derived from the
incorporation of this provision.
Section 303.520(d)(5)(ii)(A)--Family Insurance and the Calculation of
Position on the State Fee Scale
Section 303.520(d)(5)(ii)(A) provides that, for States with fees
for early intervention services that have implemented a fee scale, the
calculation of a family's position on the scale may not take into
account the existence of a family's insurance. Inclusion of the
family's insurance in the calculation can result in these families
being placed at the top of the fee scale, even if those families intend
to cover the fees themselves. Most of the States with a system of
payments have implemented fee scales. Since the National Early
Intervention Longitudinal Study (NEILS) indicates that approximately 57
percent of the families participating in Part C have some form of
private insurance, this provision could result in a shift of costs from
families to the States to the extent that States are currently taking
insurance into account in determining a family's ability to pay. While
we anticipate that there will be no net change in the cost to society,
we particularly invite comments on the impact of this provision.
Section 303.520(e)(3)--Procedural Safeguards
Proposed Sec. 303.520(e)(3) sets out the procedures for redress if
a parent wishes to contest the imposition of a fee. Families have
always had the right to seek mediation, file for a due process hearing,
and file a State complaint. However, the Department is concerned that
some Part C families may not be aware that these rights apply to the
imposition of a fee or a State's determination of a family's ability to
pay. This section clarifies that these rights apply to this situation.
Since the procedural safeguards under Subpart E (or the Part B hearing
procedures if the State has adopted them) already apply, we are not
ascribing a cost impact to this provision.
Section 303.521--Prohibition Against Mandatory Enrollment in Public
Insurance Programs
Proposed Sec. 303.521(a) provides that no State may require parents
to sign up for or enroll in a public insurance program in order for
their child to receive early intervention services. OSEP is aware that
a small number of States have required families to apply for third-
party resources such as Medicaid. The increased cost to States that may
result from the proposed change is outweighed by the benefits of
protecting the privacy and autonomy of the family. A family's decision
to enroll in public insurance programs may be affected by religious
concerns, the perceived stigma of public insurance, and considerations
related to family finances. However, nothing in this provision
precludes a State from providing information on and promoting public
insurance programs, assisting families with application forms, or using
combined enrollment forms. We believe that most families will want to
enroll in these programs to obtain medical coverage for the entire
family. However, we do not have data on the number or percentage of
eligible families participating in this program that refuse to enroll
in public insurance programs. We invite commenters to
[[Page 53828]]
provide this information, if it is available on the State or local
level.
Section 303.521(b)(1)(iii)--State Access to Public Insurance Benefits
The NEILS indicates that approximately 44 percent of the families
participating in the Part C program participate in a government-
assisted health insurance program such as Medicaid or the SCHIP. For
families already enrolled or who voluntarily enroll in public insurance
programs, State agencies are currently accessing that insurance to
finance early intervention services. Proposed Sec. 303.521(b)(1)(iii)
provides that a State may not use a child's benefits under a public
insurance program without obtaining parental consent if that use would
result in a negative outcome for the family such as a decrease in
available lifetime coverage or any other insured benefit, the family
paying for services that would otherwise be covered by the insurance
program, an increase in premiums, or the discontinuation of insurance.
The proposed regulations adopts the same criteria regarding parental
consent as in the Part B regulations (see Sec. 300.142(e)). We expect
this to have a limited effect. In most cases, use of Federal, State, or
local public insurance programs by a State to provide or pay for a
service will not result in a current or foreseeable future cost to the
family or child, and States will not be required to get consent. In the
limited number of cases where a State might need to obtain consent, the
burden to States is outweighed by the benefit to families of having
this protection.
Section 303.521(c)--Parental Payment Option
According to preliminary data obtained from the NEILS,
approximately 95 percent of children participating in Part C are
covered by some form of insurance. For States with a fee scale for
early intervention services, proposed section 303.521(c) gives parents
the option of using their public or private insurance or paying the
applicable fee for each service. This provision will provide a direct
benefit to some families. While it clearly places the locus of
responsibility for payments with the family, it provides the family
with options as to how it will fulfill that responsibility. For
example, a family may choose to pay the fee rather than jeopardize
future benefits or eligibility under a private insurance policy. This
provision may diminish State access to insurance if more parents in
States with systems of payments, when given a clear choice, opt to pay
the applicable fees. However, any loss of access is offset by the
benefits to families of increasing parental choice and may increase the
likelihood that children with disabilities will get the services they
need.
Section 303.521(d)--Parental Permission To Access Private Insurance
Benefits
Section 303.521(d) provides that, in States with no system of
payments, the State needs parental consent for using a family's private
insurance. This is a slight variation on past practice, which required
consent when there is a cost to the family. As there is virtually
always some cost, this provision does not represent a change in
practice and should not result in increased costs for States with no
system of payments. For States that do have a system of payments, the
provision described at Sec. 303.521(c) precludes the need for formal
consent.
Section 303.521(e)--Use of Part C Funds
Under proposed Sec. 303.521(e), States may choose to use Part C
funds to pay co-pay or deductible amounts for families in order to
access public or private insurance that would otherwise not be
available. States may be unable to obtain parental consent to use a
family's insurance if the parents would be required to pay co-pay or
deductible amounts. This section may help States to access additional
funds. In States with a system of payments, the State could pay the co-
pay amount as an incentive for parents to choose the insurance option,
thus benefiting both the State and the family. We foresee no negative
consequence for the family.
2. Clarity of the Regulations
Executive Order 12866 and the President's Memorandum of June 1,
1998 on ``Plain Language in Government Writing'' require each agency to
write regulations that are easy to understand. We invite comments on
how to make these proposed regulations easier to understand, including
answers to questions such as the following:
* Are the requirements in the proposed regulations clearly
stated?
* Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
* Does the format of the proposed regulations (use of
headings, paragraphing, etc.) aid or reduce their clarity?
* Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 303.1 Purpose of the early intervention program for infants and
toddlers with disabilities.
* Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the proposed regulation easier to understand? If so, how?
* What else could we do to make the proposed regulations
easier to understand?
Send any comments that concern how the Department could make this
proposed regulation easier to understand to the person listed in the
ADDRESSES section of the preamble.
Regulatory Flexibility Act Certification
The Secretary certifies that this regulatory document will not have
a significant economic impact on a substantial number of small
entities. These regulations govern States in their implementation of
the IDEA Part C program. States are not small entities under the
Regulatory Flexibility Act. Part C does not authorize subgrants, and
thus there are no small entities directly affected by these
regulations. The small entities that would be indirectly affected are
local entities that enter into contracts with the State to provide Part
C services. However, the regulations would not have a significant
economic impact on these small entities because the regulations would
not impose excessive regulatory burdens or require unnecessary Federal
supervision. The regulations would impose minimal requirements,
concerning the issue of providing services in natural environments, and
the issue of use of insurance, to ensure the proper expenditure of
program funds.
Paperwork Reduction Act of 1995
Sections 303.100, 303.121, 303.122, 303.123, 303.124, 303.125,
303.126, 303.127, 303.128, 303.141, 303.142, 303.143, 303.144, 303.145,
303.146, 303.148, 303.160, 303.161, 303.162, 303.164, 303.165, 303.166,
303.167, 303.168, 303.169, 303.170, 303.171, 303.172, 303.173, 303.174,
303.175, 303.176, 303.180, 303.300, 303.301, 303.320, 303.321, 303.322,
303.323, 303.340, 303.341, 303.342, 303.343, 303.344, 303.345, 303.346,
303.360, 303.361, 303.420, 303.421, 303.422, 303.423, 303.424, 303.425,
303.460, 303.500, 303.501, 303.519, 303.520, 303.522, 303.523, 303.524,
303.525, 303.526, 303.527, 303.528, 303.540, 303.600, 303.601, 303.602,
303.603, 303.604, 303.650, 303.651, 303.652, 303.653, and 303.654
contain information collection requirements. As required by the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the
[[Page 53829]]
Department of Education has submitted a copy of these sections to the
Office of Management and Budget (OMB) for its review.
For purposes of addressing the Paperwork Reduction Act
requirements, we have divided the sections listed in the preceding
paragraph into three categories, as follows:
The first category includes three sections that contain, for the
first time, information collection requirements that have been added by
this NPRM, including Secs. 303.100, 303.341, and 303.519. However, in
large part, these provisions do not add new paperwork burden, as
described in the following paragraphs:
First, we have included Sec. 303.100 in the list of new information
collection requirements to clarify, within the general application
requirements in subpart B of this part, that the information contained
in a State's application must include ``copies of all applicable State
statutes, regulations, and other State documents that show the basis of
that information.'' This proposed change, which conforms to the final
Part B regulations (34 CFR 300.110(b)(2)), does not add a new burden,
but merely clarifies and gives added emphasis to existing State
application requirements in the Part C regulations. (The Department and
the States have appropriately interpreted the existing definition of
``policies'' in Sec. 303.20 to ensure that if a State policy is found
in a State statute or regulation, the Part C application must include
that document.)
Second, although we have included Sec. 303.341 in the list of new
information requirements, States have traditionally been required to
submit policies and procedures on natural environments. New section
303.341 includes, in modified form, the requirements for policies and
procedures on natural environments that are currently included in
303.167(c) of the existing regulations. Current Sec. 303.167(c) would
be amended by this NPRM, by removing the substance on natural
environments to new Sec. 303.341(a), and further revising the language
in Sec. 303.167(c) to clarify that each application must include
``Policies and procedures on natural environments that meet the
requirements of Secs. 303.341 and 303.344.''
Finally, new Sec. 303.519 has been included under category 1, even
though many of the information collection requirements in that section
were moved from current Sec. 303.520, as part of an effort to improve
the readability and clarity of those provisions. (See description of
the proposed changes to State financing of early intervention services,
included earlier in this preamble).
The second category includes sections that are currently approved
by OMB, but are being revised by this NPRM. This category includes
Secs. 303.124, 303.128, 303.148, 303.165, 303.167, 303.169, 303.173,
303.174, 303.321, 303.340, 303.344, 303.361, and 300.523.
The third category contains sections currently approved by OMB that
either are not affected by the NPRM or do not contain any new
information collection requirements. This category includes
Secs. 303.122, 303.123, 303.125, 303.126, 303.127, 303.141, 303.142,
303.143, 303.144, 303.145, 303.146, 303.160, 303.161, 303.162, 303.165,
303.166, 303.168, 303.170, 303.171, 303.172, 303.174, 303.175, 303.176,
303.180, 303.301, 303.302, 303.322, 303.323, 303.342, 303.343, 303.345,
303.346, 303.360, 303.420, 303.421, 303.422, 303.423, 303.424, 303.425,
303.460, 303.500, 303.501, 303.522, 303.524, 303.525, 303.526, 303.527,
303.528, 303.540, 303.600, 303.601, 303.602, 303.603, 303.604, 303.650,
303.651, 303.652, 303.653, and 303.654.
The new or revised sections with paperwork requirements that are
described under categories 1 and 2 in the preceding paragraphs contain
information collection provisions that affect a State's application for
a grant under this part, including the sections with specific
application requirements in subpart B of this NPRM, and the substantive
sections to which they refer in subparts D and F. A description of this
information collection is included in the following paragraphs.
Collection of Information: Early Intervention Program for Infants and
Toddlers With Disabilities
State Application for a Grant, Secs. 303.100, 303.124, 303.128,
303.148, 303.165, 303.167, 303.169, 303.173, 303.174, 303.321, 303.340,
303.341, 303.344, 303.361, 303.519, 303.523. In order to receive funds
under this part for any fiscal year, a State must have on file with the
Secretary a statement of assurances and an approved application that
meets specified requirements under subpart B of these regulations. All
States have approved applications on file with the Secretary that meet
the requirements under the current regulations.
In all of the sections listed in the preceding paragraph, States
are not required to submit any information that is currently on file
with the Secretary, but are only required to submit new information
that would be added by this NPRM. Consistent with changes made by the
IDEA Amendments of 1997 (Pub. L. 105-17), the new or revised State
policies and procedures required by this NPRM must be submitted only
one time to the Secretary, and remain in effect unless amended.
Therefore, States will have a one-time paperwork burden in complying
with these proposed changes, and not an annual burden.
The one-time burden for meeting the application requirements
described in the preceding paragraphs is estimated to average 8 hours
for 56 respondents, including reviewing instructions, searching
existing data sources, gathering and maintaining the data needed and
completing and reviewing the collection of information. Thus, the total
burden for this one-time collection is estimated to be 448 hours.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, room 10235, New Executive
Office Building, Washington, DC 20503; Attention: Desk Officer for U.S.
Department of Education.
The Department considers comments by the public on these proposed
collections of information in--
* Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
* Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
* Enhancing the quality, usefulness, and clarity of the
information to be collected; and
* Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology; e.g., permitting
electronic submission of responses.
OMB is required to make a decision concerning the collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment to the Department on the
proposed regulations.
[[Page 53830]]
Intergovernmental Review
This program is subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
order is to foster an intergovernmental partnership and a strengthened
federalism. The Executive order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of our specific plans and
actions for this program.
Assessment of Educational Impact
The Secretary particularly requests comments on whether these proposed
regulations would require transmission of information that any other
agency or authority of the United States gathers or makes available.
Federalism
Executive Order 13132 requires us to ensure meaningful and timely input
by State and local elected officials in the development of regulatory
policies that have federalism implications. ``Federalism implications''
means substantial direct effects on the States, on the relationship
between the National Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Among other requirements, the Executive order requires us to consult
with State and local elected officials respecting any regulations that
have federalism implications and either preempt State law or impose
substantial direct compliance costs on State and local governments, and
are not required by statute, unless the Federal government provides the
funds for those costs.
Although we do not believe that these proposed regulations have
federalism implications as defined in Executive Order 13132, we
encourage State and local elected officials to review them and to
comment specifically on whether they may impose substantial direct
compliance costs on State and local governments without reimbursement
of those costs by the Federal government. Also, though we do not intend
to preempt State law, we are asking for comments as to whether these
proposed regulations would result in any unintended preemption of State
law.
Electronic Access to this Document
You may view this document, as well as all other Department of
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(Catalog of Federal Domestic Assistance Number: 84-181 Early
Intervention Program for Infants and Toddlers with Disabilities)
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 23, 2000.
Richard W. Riley,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend 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, Eligibility, and Other General Provisions
Sec.
303.1 Purpose of the early intervention program for infants and
toddlers with disabilities.
303.2 Eligible recipients of an award.
303.3 Use of Part C funds.
303.4 Limitation on eligible children.
303.5 Applicable regulations.
Definitions
303.6 Act.
303.7 Children.
303.8 Council.
303.9 Day; business day.
303.10 Developmental delay.
303.11 Early intervention program.
303.12 Early intervention services.
303.13 Health services.
303.14 IFSP; IFSP team.
303.15 Include; including.
303.16 Infants and toddlers with disabilities.
303.17 Multidisciplinary.
303.18 Natural environments.
303.19 Parent.
303.20 Policies.
303.21 Public agency.
303.22 Qualified personnel.
303.23 State.
303.24 EDGAR definitions that apply.
Subpart B--State Application for a Grant
General Requirements
303.100 Conditions of assistance.
303.101 How the Secretary disapproves a State's application
statement of assurances.
Public Participation
303.110 General requirements and timelines for public
participation.
303.111 Notice of public hearings and opportunity to comment.
303.112 Public hearings.
303.113 Reviewing public comments received.
Statement of Assurances
303.120 General.
303.121 Reports and records.
303.122 Control of funds and property.
303.123 Prohibition against commingling.
303.124 Prohibition against supplanting.
303.125 Fiscal control.
303.126 Payor of last resort.
303.127 Assurance regarding expenditure of funds.
303.128 Traditionally underserved groups.
General Requirements for a State Application
303.140 General.
303.141 Information about the Council.
303.142 Designation of lead agency.
303.143 Designation regarding financial responsibility.
303.144 Assurance regarding use of funds.
303.145 Description of use of funds.
303.146 Information about public participation.
303.147 Service to all geographic areas.
303.148 Transition to preschool or other appropriate services .
Components of a Statewide System--Application Requirements
303.160 Minimum components of a statewide system.
303.161 State definition of developmental delay.
303.162 Central directory.
303.163 [Reserved]
303.164 Public awareness program.
303.165 Comprehensive child find system.
303.166 Evaluation, assessment, and non-discriminatory procedures.
303.167 Individualized family service plans.
303.168 Comprehensive system of personnel development (CSPD).
303.169 Personnel standards.
303.170 Procedural safeguards.
303.171 Supervision and monitoring of programs.
303.172 Lead agency procedures for resolving complaints.
303.173 Policies and procedures related to financial matters.
303.174 Interagency agreements; resolution of individual disputes.
303.175 Policy for contracting or otherwise arranging for services.
303.176 Data collection.
Participation by the Secretary of the Interior
303.180 Payments to the Secretary of the Interior for Indian tribes
and tribal organizations.
[[Page 53831]]
Subpart C--Procedures for Making Grants to States
303.200 Formula for State allocations.
303.201 Distribution of allotments from non-participating States.
303.202 Minimum grant that a State may receive.
303.203 Payments to the Secretary of the Interior.
303.204 Payments to the jurisdictions.
Subpart D--Program and Service Components of a Statewide System of
Early Intervention Services
General
303.300 Child eligibility--criteria and procedures.
303.301 Central directory.
303.302 Service coordination.
Identification and Evaluation
303.320 Public awareness program.
303.321 Comprehensive child find system.
303.322 Evaluation and assessment.
303.323 Non-discriminatory procedures.
Individualized Family Service Plans (IFSPs)
303.340 Definition of IFSP; lead agency responsibility.
303.341 Policies and procedures on natural environments.
303.342 Development, review, and revision of IFSPs.
303.343 IFSP team--meetings and periodic reviews.
303.344 Content of IFSP.
303.345 Provision of services before evaluation and assessment are
completed.
303.346 Responsibility and accountability.
Personnel Training and Standards
303.360 Comprehensive system of personnel development (CSPD).
303.361 Personnel standards.
Subpart E--Procedural Safeguards
General
303.400 General responsibility of lead agency for procedural
safeguards.
303.401 Definitions of consent, native language, and personally
identifiable information.
303.402 Opportunity to examine records.
303.403 Prior notice; native language.
303.404 Parent consent.
303.405 Parent right to decline service.
303.406 Surrogate parents.
Mediation and Due Process Procedures for Parents and Children
303.419 Mediation.
303.420 Due process procedures.
303.421 Impartial hearing officer.
303.422 Parent rights in due process hearings.
303.423 Convenience of hearings; timelines.
303.424 Civil action.
303.425 Status of a child during proceedings.
Confidentiality
303.460 Confidentiality of information.
Subpart F--State Administration
General
303.500 Lead agency establishment or designation.
303.501 Supervision and monitoring of programs.
Lead Agency Procedures for Resolving Complaints
303.510 Adopting complaint procedures.
303.511 An organization or individual may file a complaint.
303.512 Minimum State complaint procedures.
Policies and Procedures Related to Financial Matters
303.519 Policies related to payment for services.
303.520 System of payments.
303.521 Use of insurance.
303.522 Identification and coordination of resources.
303.523 Interagency agreements.
303.524 Resolution of disputes.
303.525 Delivery of services in a timely manner.
303.526 Policy for contracting or otherwise arranging for services.
303.527 Payor of last resort.
303.528 Reimbursement procedure.
Reporting Requirements
303.540 Data collection.
Use of Funds for State Administration
303.560 Use of funds for administration.
Subpart G--State Interagency Coordinating Council
General
303.600 Establishment of Council.
303.601 Composition.
303.602 Use of funds by the Council.
303.603 Meetings.
303.604 Conflict of interest.
Functions of the Council
303.650 General.
303.651 Advising and assisting the lead agency in its
administrative duties.
303.652 Applications.
303.653 Transition services.
303.654 Annual report to the Secretary.
Authority: 20 U.S.C. 1431-1445, unless otherwise noted.
Subpart A--General
Purpose, Eligibility, and Other General Provisions
Sec. 303.1 Purpose of the early intervention program for infants and
toddlers with disabilities.
The purpose of this part is to provide financial assistance to
States to--
(a) Maintain and implement a statewide, comprehensive, coordinated,
multidisciplinary, interagency system of 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 the States' 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; and
(d) Enhance the capacity of State and local agencies and service
providers to identify, evaluate, and meet the needs of historically
underrepresented populations, particularly minority, low-income, inner-
city, and rural populations.
(Authority: 20 U.S.C. 1431)
Sec. 303.2 Eligible recipients of an award.
Eligible recipients include the 50 States, the Commonwealth of
Puerto Rico, the District of Columbia, the Secretary of the Interior,
and the following jurisdictions: Guam, American Samoa, the Virgin
Islands, the Commonwealth of the Northern Mariana Islands.
(Authority: 20 U.S.C. 1401(27), 1443)
Sec. 303.3 Use of Part C funds.
(a) Funds under Part C of the Act may be used for the following
activities:
(1) To maintain and implement a statewide system of early
intervention services for children eligible under this part and their
families.
(2) For direct services for eligible children and their families
that are not otherwise provided from other public or private sources.
(3) To expand and improve on services for eligible children and
their families that are otherwise available, consistent with
Sec. 303.527.
(4) To provide a free appropriate public education, in accordance
with part B of the Act, to children with disabilities from their third
birthday to the beginning of the following school year.
(5) To strengthen the statewide system by initiating, expanding, or
improving collaborative efforts related to at-risk infants and
toddlers, including establishing linkages with appropriate public or
private community-based organizations, services, and personnel for the
purpose of--
(i) Identifying and evaluating at-risk infants and toddlers;
(ii) Making referrals of the infants and toddlers identified and
evaluated under paragraph (a)(5)(i) of this section; and
(iii) Conducting periodic follow-up on each referral under
paragraph (a)(5)(ii) of this section to determine if the status of the
infant or toddler involved has changed with respect to the eligibility
of
[[Page 53832]]
the infant or toddler for services under this part.
(6) To assist families--
(i) To understand the sources of financing early intervention
services, including public and private insurance programs, and how to
access those sources; and
(ii) To be knowledgeable about any potential long-term costs
involved in accessing the sources described in paragraph (a)(6)(i) of
this section, and how to minimize those costs.
(b)(1) Funds under Part C of the Act may not be used to pay costs
of a party related to an action or proceeding under section 639 of the
Act and subpart E of this part.
(2) Paragraph (b)(1) of this section does not preclude a lead
agency from using funds under Part C of the Act for conducting due
process hearings under section 639 of the Act (for example, paying a
hearing officer, providing a place for conducting a hearing, and paying
the cost of providing the parent with a transcription of the hearing).
(Authority: 20 U.S.C. 1433 and 1438)
Sec. 303.4 Limitation on eligible children.
This part 303 does not apply to any child with disabilities
receiving a free appropriate public education, in accordance with 34
CFR part 300, with funds received under 34 CFR part 301.
(Authority: 20 U.S.C. 1419(h))
Sec. 303.5 Applicable regulations.
(a) The following regulations apply to this part:
(1) The Education Department General Administrative Regulations
(EDGAR), including--
(i) Part 76 (State Administered Programs), except for Sec. 76.103;
(ii) Part 77 (Definitions that Apply to Department Regulations);
(iii) Part 79 (Intergovernmental Review of Department of Education
Programs and Activities);
(iv) Part 80 (Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments);
(v) Part 81 (Grants and Cooperative Agreements under the General
Education Provisions Act--Enforcement);
(vi) Part 82 (New Restrictions on Lobbying);
(vii) Part 85 (Governmentwide Debarment and Suspension
(Nonprocurement) and Governmentwide Requirements for Drug-Free Work
Place (Grants));
(viii) Part 97 (Protection of Human Subjects);
(ix) Part 98 (Student Rights in Research, Experimental Programs and
Testing; and
(x) Part 99 (Family Educational Rights and Privacy).
(2) The regulations in this part 303.
(3) The following regulations in 34 CFR part 300 (Assistance to
States for the Education of Children with Disabilities Program):
Secs. 300.506-300.512 (Part B due process hearing procedures), if the
lead agency adopts these provisions under Sec. 303.420(a)(1);
Secs. 300.560-300.577 (Confidentiality of information); and
Secs. 300.580-300.587 (Department procedures for determining a State's
eligibility under Part C of the Act).
(b) In applying the regulations cited in paragraphs (a)(1) and
(a)(3) of this section, any reference to--
(1) State educational agency means the lead agency under this part;
(2) Special education, related services, free appropriate public
education, free public education, or education means ``early
intervention services'' under this part;
(3) Participating agency, when used in reference to a local
educational agency or an intermediate educational agency, means a local
service provider under this part; and
(4) Section 300.127 (confidentiality of personally identifiable
information) means Sec. 303.460.
(Authority: 20 U.S.C. 1401, 1416, 1417, 1442)
Definitions
Note to Secs. 303.6--303.23: Sections 303.6-303.23 contain
definitions, including a definition of ``natural environments'' in
Sec. 303.18, that are used throughout these regulations. Other terms
are defined in the specific subparts in which they are used. The
following is a list of those terms and the specific sections in
which they are defined:
Appropriate professional requirements in the State (Sec. 303.361(a)(1))
Assessment (Sec. 303.322(b)(2))
Consent (Sec. 303.401(a))
Evaluation (Sec. 303.322(b)(1))
Frequency and intensity (Sec. 303.344(d)(2)(i))
Highest requirements in the State applicable to a profession or
discipline (Sec. 303.361)(a)(2))
Individualized family service plan and IFSP (Sec. 303.340(b))
Impartial (Sec. 303.421(b))
Method (Sec. 303.344(d)(2)(ii))
Native language (Sec. 303.401(b))
Personally identifiable (Sec. 303.401(c))
Primary referral sources (Sec. 303.321(d)(3))
Profession or discipline (Sec. 303.361(a)(3))
Special definition of ``aggregate amount'' (Sec. 303.200(b)(1))
Special definition of ``infants and toddlers'' (Sec. 303.200(b)(2))
Special definition of ``State'' (Sec. 303.200(b)(3))
State approved or recognized certification, licensing, registration, or
other comparable requirements (Sec. 303.361(a)(4))
Sec. 303.6 Act.
As used in this part, the term Act means the Individuals with
Disabilities Education Act.
(Authority: 20 U.S.C. 1400)
Sec. 303.7 Children.
As used in this part, the term children means infants and toddlers
with disabilities as that term is defined in Sec. 303.16.
(Authority: 20 U.S.C. 1432(5))
Sec. 303.8 Council.
As used in this part, the term Council means the State Interagency
Coordinating Council.
(Authority: 20 U.S.C. 1432(2))
Sec. 303.9 Day; business day.
(a) As used in this part, the term day means calendar day, unless
otherwise indicated as business day in accordance with paragraph (b) of
this section.
(b)(1) If a State, under Sec. 303.420(a)(1), adopts the Part B due
process hearing procedures in 34 CFR part 300, the term business day is
used with respect to hearing rights in 34 CFR 300.509.
(2) Business day means Monday through Friday, except for Federal
and State holidays.
(Authority: 20 U.S.C. 1431-1445)
Sec. 303.10 Developmental delay.
As used in this part, the term developmental delay, when used with
respect to a child residing in a State, has the meaning given to that
term under Sec. 303.300(b).
(Authority: 20 U.S.C. 1432(3))
Sec. 303.11 Early intervention program.
As used in this part, the term early intervention program means the
total effort in a State that is directed at meeting the needs of
children eligible under this part and their families.
(Authority: 20 U.S.C. 1431-1445)
Sec. 303.12 Early intervention services.
(a) General. As used in this part, the term early intervention
services means developmental services that--
(1) Are provided--
(i) Under public supervision; and
(ii) At no cost, unless, subject to Sec. 303.520(b)(3), Federal or
State law provides for a system of payments by
[[Page 53833]]
families, including a schedule of sliding fees;
(2) Are designed to meet--
(i) The developmental needs of each child eligible under this part
in one or more of the areas listed in Sec. 303.16(a)(1); and
(ii) The needs of the family related to enhancing the child's
development;
(3) Are selected in collaboration with the parents;
(4) Meet the standards of the State, including the requirements of
this part;
(5) Subject to the exclusions on health services in Sec. 303.13(c),
include the services listed in paragraph (b) of this section;
(6) Are provided in a timely manner by qualified personnel, as
defined in Sec. 303.22, including the types of personnel listed in
paragraph (c) of this section;
(7) Are provided in conformity with an individualized family
service plan (IFSP); and
(8) To the maximum extent appropriate to the needs of the child,
are provided in natural environments, as defined in Sec. 303.18.
(b) Types of services; definitions. The term early intervention
services includes the following:
(1)(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 children with disabilities.
(ii) Assistive technology service means a service that directly
assists an eligible child or the child's parents in the selection,
acquisition, or use of an assistive technology device for the child.
The term includes--
(A) The evaluation of the needs of a child with a disability,
including a functional evaluation of the child in the child's customary
environment;
(B) Purchasing, leasing, or otherwise providing for the acquisition
of assistive technology devices by children 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 a child with disabilities
or, if appropriate, that child's family; and
(F) Training or technical assistance for professionals (including
individuals providing early intervention services) or other individuals
who provide services to or are otherwise substantially involved in the
major life functions of individuals with disabilities.
(2) Audiology services includes--
(i) Identification of children with hearing loss, using appropriate
audiologic screening techniques;
(ii) Determination of the range, nature, and degree of hearing loss
and communication functions, by use of audiological evaluation
procedures;
(iii) Referral for medical and other services necessary for the
habilitation or rehabilitation of children with hearing loss;
(iv) Provision of auditory training, aural rehabilitation, speech
reading and listening device orientation and training, and other
services;
(v) Provision of services for prevention of hearing loss; and
(vi) Determination of the child's need for individual
amplification, including selecting, fitting, and dispensing appropriate
listening and vibrotactile devices, and evaluating the effectiveness of
those devices; and
(vii) Counseling and guidance of children, parents, and teachers
regarding hearing loss.
(3) Family training, counseling, and home visits means services
provided, as appropriate, by social workers, psychologists, special
educators, and other qualified personnel to assist the family of a
child eligible under this part in understanding the special needs of
the child and enhancing the child's development.
(4) Health services (See Sec. 303.13).
(5) Medical services only for diagnostic or evaluation purposes
means services provided by a licensed physician to determine a child's
developmental status and need for early intervention services.
(6) Nutrition services includes--
(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 (d)(7)(i) of this section; and
(iii) Making referrals to appropriate community resources to carry
out nutrition goals.
(7) Occupational therapy--
(i) Means services provided by a qualified occupational therapist;
and
(ii) Includes services to address the functional needs of a child
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--
(A) Identification, assessment, and intervention;
(B) 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
(C) Prevention or minimization of the impact of initial or future
impairment, delay in development, or loss of functional ability.
(8) 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 infants and toddlers
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.
(9) Psychological services includes--
(i) Administering psychological and developmental tests and other
assessment procedures;
(ii) Interpreting assessment results;
(iii) Obtaining, integrating, and interpreting information about
child behavior, and child and family conditions related to learning,
mental health, and development; and
(iv) Planning and managing a program of psychological services,
including psychological counseling for children and parents, family
counseling, consultation on child development, parent training, and
education programs.
(10) Service coordination means assistance and services provided by
a service coordinator to a child eligible under this part and the
child's family, in accordance with Sec. 303.302.
(11) Social work services includes--
(i) Making home visits to evaluate a child's living conditions and
patterns of parent-child interaction;
(ii) Preparing a social or emotional developmental assessment of
the child within the family context;
[[Page 53834]]
(iii) Providing individual and family-group counseling with parents
and other family members, and appropriate social skill-building
activities with the child and parents;
(iv) Working with those problems in a child's and family's living
situation (home, community, and any center where early intervention
services are provided) that affect the child's maximum utilization of
early intervention services; and
(v) Identifying, mobilizing, and coordinating community resources
and services to enable the child and family to receive maximum benefit
from early intervention services.
(12) Special instruction includes the following:
(i) The design of learning environments and activities that promote
the child's acquisition of skills in the following developmental areas:
cognitive; physical; communication; social or emotional; and adaptive.
(ii) Planning that leads to achieving the outcomes in the child's
IFSP, including curriculum planning, the planned interaction of
personnel, and planning with respect to the appropriate use of time,
space, and materials.
(iii) Providing families with information, skills, and support
related to enhancing the skill development of the child.
(iv) Working with the child to enhance the child's development.
(13) Speech-language pathology services includes--
(i) Identification of children with communicative or swallowing
disorders and delays in development of communication skills, including
the diagnosis and appraisal of specific disorders and delays in those
skills;
(ii) Referral for medical or other professional services necessary
for the habilitation or rehabilitation of children with communicative
or swallowing disorders and delays in development of communication
skills;
(iii) Provision of services for the habilitation, rehabilitation,
or prevention of communicative or swallowing disorders and delays in
development of communication skills; and
(iv) Counseling and guidance of parents, children, and teachers
regarding speech and language impairments.
(14) Transportation and related costs includes the cost of travel
(e.g., mileage, or travel by taxi, common carrier, or other means) and
other costs (e.g., tolls and parking expenses) that are necessary to
enable a child eligible under this part and the child's family to
receive early intervention services.
(15) Vision services means--
(i) Evaluation and assessment of visual functioning, including the
diagnosis and appraisal of specific visual disorders, delays, and
abilities;
(ii) Referral for medical or other professional services necessary
for the habilitation or rehabilitation of visual functioning disorders,
or both; and
(iii) Communication skills training, orientation and mobility
training for all environments, visual training, independent living
skills training, and additional training necessary to activate visual
motor abilities.
(c) Qualified personnel. Qualified personnel providing early
intervention services under this part include--
(1) Audiologists;
(2) Family therapists;
(3) Nurses;
(4) Nutritionists;
(5) Occupational therapists;
(6) Orientation and mobility specialists;
(7) Pediatricians and other physicians;
(8) Physical therapists;
(9) Psychologists;
(10) Social workers;
(11) Special educators; and
(12) Speech and language pathologists.
(d) General role of service providers. To the extent appropriate,
service providers in each area of early intervention services included
in paragraph (d) of this section are responsible for--
(1) Consulting with parents, other service providers, and
representatives of appropriate community agencies to ensure the
effective provision of services in that area;
(2) Training parents and others regarding the provision of those
services; and
(3) Participating in the multidisciplinary team's assessment of a
child and the child's family, and in the development of integrated
goals and outcomes for the individualized family service plan.
(Authority: 20 U.S.C. 1401(1) and (2); 1432(4))
Note to Sec. 303.12: The lists of services in paragraph (b) and
qualified personnel in paragraph (c) of this section are not
exhaustive. Early intervention services may include such services as
the provision of respite and other family support services.
Qualified personnel may include such personnel as vision
specialists, paraprofessionals, parent-to-parent support personnel,
augmentative communication specialists, and technology specialists.
Sec. 303.13 Health services.
(a) As used in this part, the term health services means services
necessary to enable a child to benefit from the other early
intervention services under this part during the time that the child is
receiving the other early intervention services.
(b) Subject to paragraph (c) of this section, 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;
(2) Consultation by physicians with other service providers
concerning the special health care needs of eligible children that will
need to be addressed in the course of providing other early
intervention services; and
(3) Nursing services, including--
(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) Provision of nursing care to prevent health problems, restore
or improve functioning, and promote optimal health and development; and
(iii) Administration of medications, treatments, and regimens
prescribed by a licensed physician.
(c) The term does not include the following:
(1) Services that are--
(i) Surgical in nature (such as cleft palate surgery, surgery for
club foot, the shunting of hydrocephalus, or the installation of
devices such as pacemakers, cochlear implants, or prostheses); or
(ii) Purely medical in nature (such as hospitalization for
management of congenital heart ailments, or the prescribing of medicine
or drugs for any purpose).
(2) Devices necessary to control or treat a medical or other
condition (such as pacemakers, cochlear implants, prostheses, or
shunts).
(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))
Note to Sec. 303.13: The definition in this section
distinguishes between the health services that are required under
this part and the medical-health services that are not required. The
IFSP requirements in subpart D of this part provide that, to the
extent appropriate, these other medical-health services are to be
included in the IFSP, along with the funding sources to be used in
paying for the services or the steps that will be taken to secure
the services through public or private sources. Identifying these
services in the IFSP does not impose an obligation to provide the
services if they are otherwise not required to be provided under
this part. (See
[[Page 53835]]
Sec. 303.344 (f) and note 3 following that section.)
Sec. 303.14 IFSP; IFSP team.
As used in this part, the term--
(a) IFSP means the individualized family service plan, as that term
is defined in Sec. 303.340(a); and
(b) IFSP team means the group of participants described in
Sec. 303.343 that is responsible for developing, reviewing, and, if
appropriate, revising an IFSP for an eligible child under this part.
(Authority: 20 U.S.C. 1221e-3; 1436)
Sec. 303.15 Include; including.
As used in this part, the term 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. 1431-1445)
Sec. 303.16 Infants and toddlers with disabilities.
(a) As used in this part, the term infants and toddlers with
disabilities means individuals from birth through age two who need
early intervention services because they--
(1) Are experiencing developmental delays, 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) Have a diagnosed physical or mental condition that has a high
probability of resulting in developmental delay.
(b) The term may also include, at a State's discretion, children
from birth through age two who are at risk of having substantial
developmental delays if early intervention services are not provided.
(Authority: 20 U.S.C. 1432(5))
Note 1 to Sec. 303.16: The phrase ``a diagnosed physical or
mental condition that has a high probability of resulting in
developmental delay,'' as used in paragraph (a)(2) of this section,
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.
Note 2 to Sec. 303.16: With respect to paragraph (b) of this
section, children who are at risk may be eligible under this part if
a State elects to extend services to that population, even though
they have not been identified as disabled.
Under this provision, States have the authority to define who
would be ``at risk of having substantial developmental delays if
early intervention services are not provided.'' In defining the ``at
risk'' population, States may include well-known biological and
environmental factors that can be identified and that place infants
and toddlers ``at risk'' for developmental delay. Commonly cited
factors include low birth weight, respiratory distress as a newborn,
lack of oxygen, brain hemorrhage, infection, nutritional
deprivation, and a history of abuse or neglect. It should be noted
that ``at risk'' factors do not predict the presence of a barrier to
development, but they may indicate children who are at higher risk
of developmental delay than children without these problems.
Sec. 303.17 Multidisciplinary.
As used in this part, the term multidisciplinary means the
involvement of two or more disciplines or professions in the provision
of integrated and coordinated services, including evaluation and
assessment activities in Sec. 303.322 and development of the IFSP in
Sec. 303.342.
(Authority: 20 U.S.C. 1435(a)(3), 1436(a))
Sec. 303.18 Natural environments.
As used in this part, the term natural environments--
(a) Means settings that are natural or normal for an eligible
child's age peers who have no disabilities; and
(b) Includes--
(1) The home; and
(2) Community settings in which children without disabilities
participate.
(Authority: 20 U.S.C. 1435 and 1436)
Sec. 303.19 Parent.
(a) General. As used in this part, the term parent means--
(1) A natural or adoptive parent of a child;
(2) A guardian, but not the State if the child is a ward of the
State;
(3) A person acting in the place of a parent (such as a grandparent
or stepparent with whom the child lives, or a person who is legally
responsible for the child's welfare); or
(4) A surrogate parent who has been assigned in accordance with
Sec. 303.406.
(b) Foster parent. Unless State law prohibits a foster parent from
acting as a parent, a State may allow a foster parent to act as a
parent under Part C of the Act if--
(1) The natural parents' authority to make the decisions required
of parents under the Act has been extinguished under State law; and
(2) The foster parent--
(i) Has an ongoing, long-term parental relationship with the child;
(ii) Is willing to make the decisions required of parents under the
Act; and
(iii) Has no interest that would conflict with the interests of the
child.
(Authority: 20 U.S.C. 1401(19), 1431-1445)
Sec. 303.20 Policies.
(a) As used in this part, the term policies means State statutes,
regulations, Governor's orders, directives by the lead agency, or other
written documents that represent the State's position concerning any
matter covered under this part.
(b) State policies include--
(1) A State's commitment to maintain the statewide system (see
Sec. 303.140);
(2) A State's eligibility criteria and procedures (see
Sec. 303.300);
(3) Policies concerning the State's system of payments, if any, and
the State's financing of early intervention services, in accordance
with Secs. 303.519 through 303.521.
(4) A State's standards for personnel who provide services to
children eligible under this part (see Sec. 303.361);
(5) A State's position and procedures related to contracting or
making other arrangements with service providers under subpart F of
this part; and
(6) Other positions that the State has adopted related to
implementing any of the other requirements under this part.
(Authority: 20 U.S.C. 1431-1445)
Sec. 303.21 Public agency.
As used in this part, the term public agency includes the lead
agency and any other political subdivision of the State that is
responsible for providing early intervention services to children
eligible under this part and their families.
(Authority: 20 U.S.C. 1431-1445)
Sec. 303.22 Qualified personnel.
As used in this part, the term qualified personnel 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 providing early intervention
services.
(Authority: 20 U.S.C. 1432(4))
Note to Sec. 303.22: These regulations contain the following
provisions relating to a State's responsibility to ensure that
personnel are qualified to provide early intervention services:
Section 303.12(a)(4) provides that early intervention services
must meet State standards. This provision implements a requirement
that is similar to a longstanding provision under part B of the Act
(i.e., that the State educational agency establish
[[Page 53836]]
standards and ensure that those standards are currently met for all
programs providing special education and related services).
Section 303.12(a)(6) provides that early intervention services
must be provided by qualified personnel.
Section 303.361(b) requires statewide systems to have policies
and procedures relating to personnel standards.
Sec. 303.23 State.
Except as provided in Sec. 303.200(b)(3), the term State means each
of the 50 States, the Commonwealth of Puerto Rico, the District of
Columbia, and the jurisdictions of Guam, American Samoa, the Virgin
Islands, the Commonwealth of the Northern Mariana Islands.
(Authority: 20 U.S.C. 1401(27))
Sec. 303.24 EDGAR definitions that apply.
The following terms used in this part are defined in 34 CFR 77.1:
Applicant
Award
Contract
Department
EDGAR
Fiscal year
Grant
Grantee
Grant period
Private
Public
Secretary
(Authority: 20 U.S.C. 1431-1445)
Subpart B--State Application for a Grant
General Requirements
Sec. 303.100 Conditions of assistance.
(a) General. (1) In order to receive funds under this part for any
fiscal year, a State must have on file with the Secretary--
(i) A statement of assurances that meets the requirements of
Secs. 303.120 through 303.128; and
(ii) An approved application that contains--
(A) The information required in Secs. 303.140-303.148 and 303.161
through 303.176; and
(B) Copies of all applicable State statutes, regulations, and other
State documents that show the basis of that information.
(2) An application that meets the requirements of this part remains
in effect until the State submits to the Secretary modifications of
that application.
(b) Exception for prior State policies on file with the Secretary.
If a State has on file with the Secretary a policy, procedure, or
assurance that demonstrates that the State meets an application
requirement, including any policy or procedure filed under this part
before July 1, 1998, that meets such a requirement, the Secretary
considers the State to have met that requirement for purposes of
receiving a grant under this part.
(c) Amendments to a State's application. 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 the regulations under
this part;
(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. 1434 and 1437)
Sec. 303.101 How the Secretary disapproves a State's application or
statement of assurances.
The Secretary follows the procedures in 34 CFR 300.581-300.586
before disapproving a State's application or statement of assurances
submitted under this part.
(Authority: 20 U.S.C. 1437)
Public Participation
Sec. 303.110 General requirements and timelines for public
participation.
(a) Before submitting to the Secretary its application under this
part, and before adopting a new or revised policy that is not in its
current application, a State must--
(1) Publish the application or policy in a manner that will ensure
circulation throughout the State for at least a 60-day period, with an
opportunity for comment on the application or policy for at least 30
days during that period;
(2) Hold public hearings on the application or policy during the
60-day period required in paragraph (a)(1) of this section; and
(3) Provide adequate notice of the hearings required in paragraph
(a)(2) of this section at least 30 days before the dates that the
hearings are conducted.
(b) A State may request the Secretary to waive compliance with the
timelines in paragraph (a) of this section. The Secretary grants the
request if the State demonstrates that--
(1) There are circumstances that would warrant such an exception;
and
(2) The timelines that will be followed provide an adequate
opportunity for public participation and comment.
(Authority: 20 U.S.C. 1437(a)(3))
Sec. 303.111 Notice of public hearings and opportunity to comment.
The notice required in Sec. 303.110(a)(3) must--
(a) Be published in newspapers or announced in other media, or
both, with coverage adequate to notify the general public, including
individuals with disabilities and parents of infants and toddlers with
disabilities, throughout the State about the hearings and opportunity
to comment on the application or policy; and
(b) Be in sufficient detail to inform the public about--
(1) The purpose and scope of the State application or policy, and
its relationship to part C of the Act;
(2) The length of the comment period and the date, time, and
location of each hearing; and
(3) The procedures for providing oral comments or submitting
written comments.
(Authority: 20 U.S.C. 1437(a)(7))
Sec. 303.112 Public hearings.
Each State must hold public hearings in a sufficient number and at
times and places that afford interested parties throughout the State a
reasonable opportunity to participate.
(Authority: 20 U.S.C. 1437(a)(7))
Sec. 303.113 Reviewing public comments received.
(a) Review of comments. Before adopting its application, and before
the adoption of a new or revised policy not in the application, the
lead agency must--
(1) Review and consider all public comments; and
(2) Make any modifications it deems necessary in the application or
policy.
(b) Submission to the Secretary. In submitting the State's
application or policy to the Secretary, the lead agency must include
copies of news releases, advertisements, and announcements used to
provide notice to the general public, including individuals with
disabilities and parents of infants and toddlers with disabilities.
(Authority: 20 U.S.C. 1437(a)(7))
Statement of Assurances
Sec. 303.120 General.
(a) A State's statement of assurances must contain the information
required in Secs. 303.121 through 303.128.
(b) Unless otherwise required by the Secretary, the statement is
submitted only once, and remains in effect throughout the term of a
State's participation under this part.
(c) A State may submit a revised statement of assurances if the
statement
[[Page 53837]]
is consistent with the requirements in Secs. 303.121 through 303.128.
(Authority: 20 U.S.C. 1437(b))
Sec. 303.121 Reports and records.
The statement must provide for--
(a) Making reports in such form and containing such information as
the Secretary may require; and
(b) Keeping such records and affording access to those records as
the Secretary may find necessary to assure compliance with the
requirements of this part, the correctness and verification of reports,
and the proper disbursement of funds provided under this part.
(Authority: 20 U.S.C. 1437(b)(4))
Sec. 303.122 Control of funds and property.
The statement must provide assurance satisfactory to the Secretary
that--
(a) The control of funds provided under this part, and title to
property acquired with those funds, will be in a public agency for the
uses and purposes provided in this part; and
(b) A public agency will administer the funds and property.
(Authority: 20 U.S.C. 1437(b)(3))
Sec. 303.123 Prohibition against commingling.
(a)(1) The statement must include an assurance satisfactory to the
Secretary that funds made available under this part will not be
commingled with State funds.
(2) As used in this part, commingle means depositing or recording
funds in a general account without the ability to identify each
specific source of funds for any expenditure.
(b) The assurance in paragraph (a)(1) of this section is satisfied
by the use of an accounting system that includes an audit trail of the
expenditure of funds awarded under this part. Separate bank accounts
are not required.
(c) To the extent that funds from Federal, State, local, and
private funding sources can be identified, with a clear audit trail for
each source, a State, at its discretion--
(1) May allow those funds to be consolidated for carrying out the
requirements of this part; and
(2) May set out a funding plan that incorporates, and accounts for,
all sources of funds that can be targeted on a given activity or
function related to the State's early intervention program.
(Authority: 20 U.S.C. 1437(b)(5)(A))
Sec. 303.124 Prohibition against supplanting.
(a) The statement must include an assurance satisfactory to the
Secretary that Federal funds made available under this part will be
used to supplement the level of State and local funds expended for
children eligible under this part and their families and in no case to
supplant those State and local funds.
(b)(1) 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.
(2) Allowance may be made for--
(i) Decreases in the number of children who are eligible to receive
early intervention services under this part; and
(ii) Unusually large amounts of funds expended for such long-term
purposes as the acquisition of equipment and the construction of
facilities.
(c) For purposes of paragraph (b) of this section, subject to the
exceptions in paragraph (b)(2) of this section, a State must be able to
demonstrate, in any fiscal year, that the total amount of State and
local funds expended for early intervention services equaled or
exceeded the lesser of--
(1) The budgeted amount that is referenced in paragraph (b) of this
section, for that same fiscal year; and
(2) The amount actually expended for early intervention services in
the most recent preceding fiscal year.
(Authority: 20 U.S.C. 1437(b)(5)(B))
Sec. 303.125 Fiscal control.
The statement must provide assurance satisfactory to the Secretary
that fiscal control and fund accounting procedures will be adopted to
the extent necessary to ensure proper disbursement of, and accounting
for, Federal funds paid under this part.
(Authority: 20 U.S.C. 1437(b)(6))
Sec. 303.126 Payor of last resort.
The statement must include an assurance satisfactory to the
Secretary that the State will comply with the provisions in
Sec. 303.527, including the requirements on--
(a) Nonsubstitution of funds; and
(b) Non-reduction of other benefits.
(Authority: 20 U.S.C. 1437(b)(2))
Sec. 303.127 Assurance regarding expenditure of funds.
The statement must include an assurance satisfactory to the
Secretary that the funds paid to the State under this part will be
expended in accordance with the provisions of this part, including the
requirements in Sec. 303.3.
(Authority: 20 U.S.C. 1437(b)(1))
Sec. 303.128 Traditionally underserved groups.
The statement must include an assurance satisfactory to the
Secretary that policies and practices have been adopted to ensure--
(a) That traditionally underserved groups, including minority, low-
income, inner-city, and rural families, are meaningfully involved in
the planning and implementation of all the requirements of this part;
and
(b) That these families have access to culturally competent
services within their local geographical areas.
(Authority: 20 U.S.C. 1437(b)(7))
General Requirements for a State Application
Sec. 303.140 General.
A State's application under this part must contain information and
assurances demonstrating to the satisfaction of the Secretary that--
(a) The statewide system of early intervention services required in
Sec. 303.160 is in effect; and
(b) A State policy is in effect that ensures 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.
(Authority: 20 U.S.C. 1434 and 1435(a)(2))
Sec. 303.141 Information about the Council.
Each application must include information demonstrating that the
State has established a State Interagency Coordinating Council that
meets the requirements of subpart G of this part.
(Authority: 20 U.S.C. 1437(a)(3))
Sec. 303.142 Designation of lead agency.
Each application must include a designation of the lead agency in
the State that will be responsible for the administration of funds
provided under this part.
(Authority: 20 U.S.C. 1437(a)(1))
Sec. 303.143 Designation regarding financial responsibility.
Each application must include a designation by the State of an
individual or entity responsible for assigning financial responsibility
among appropriate agencies.
(Authority: 20 U.S.C. 1437(a)(2))
[[Page 53838]]
Sec. 303.144 Assurance regarding use of funds.
Each application must include an assurance that funds received
under this part will be used to assist the State to maintain and
implement the statewide system required under subparts D through F of
this part.
(Authority: 20 U.S.C. 1475, 1437(a)(3))
Sec. 303.145 Description of use of funds.
(a) General. Each application must include a description of how a
State proposes to use its 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) Administrative positions. Each application must include--
(1) A list of administrative positions, with salaries, and a
description of the duties for each person whose salary is paid in whole
or in part with funds awarded under this part; and
(2) For each position, the percentage of salary paid with those
funds.
(c) Maintenance and implementation activities. Each application
must include--
(1) A description of the nature and scope of each major activity to
be carried out under this part in maintaining and implementing the
statewide system of early intervention services; and
(2) The approximate amount of funds to be spent for each activity.
(d) Direct services. (1) Each application must include a
description of any direct services that the State expects to provide to
eligible children and their families with funds under this part,
including a description of any services provided to at-risk infants and
toddlers as defined in Sec. 303.16(b), and their families, consistent
with Secs. 303.521 and 303.527;
(2) The description must include information about each type of
service to be provided, including--
(i) A summary of the methods to be used to provide the service
(e.g., contracts or other arrangements with specified public or private
organizations); and
(ii) The approximate amount of funds under this part to be used for
the service.
(e) At-risk infants and toddlers. For any State that does not
provide direct services for at-risk infants and toddlers described in
paragraph (d)(1) of this section, but chooses to use funds as described
in Sec. 303.3(e), each application must include a description of how
those funds will be used.
(f) Activities by other agencies. If other agencies are to receive
funds under this part, the application must include--
(1) The name of each agency expected to receive funds;
(2) The approximate amount of funds each agency will receive; and
(3) A summary of the purposes for which the funds will be used.
(Authority: 20 U.S.C. 1437(a)(3) and (a)(5))
Sec. 303.146 Information about public participation.
Each application must include the information on public
participation that is required in Sec. 303.113(b).
(Authority: 20 U.S.C. 1437(a)(7))
Sec. 303.147 Services to all geographic areas.
Each application must include a description of the procedure used
to ensure that resources are made available under this part for all
geographic areas within the State.
(Authority: 20 U.S.C. 1437(a)(6))
Sec. 303.148 Transition to preschool or other appropriate services.
(a) General. Each application must include a description of the
policies and procedures to be used to ensure a smooth transition for
children receiving early intervention services under this part to
preschool or other appropriate services, including the information
required in paragraphs (b) through (f) of this section.
(b) Family involvement; notification of local educational agency.
The application must describe--
(1) How the families of children served under this part will be
included in the transition plans for the children; and
(2) How the lead agency under this part will notify the local
educational agency (LEA) for the area in which an eligible child
resides that the child will shortly reach the age of eligibility for
preschool services under Part B of the Act, as determined in accordance
with State law.
(c) Transmittal of records; parental consent. (1) The application
must include, in accordance with paragraphs (c)(2) and (c)(3) of this
section, a description of the policies and procedures for transmitting
records about the child to an LEA, or any other agency, for the
purposes of--
(i) Facilitating the child's smooth transition to preschool or
other appropriate services; and
(ii) Ensuring continuity of services for the child.
(2)(i) Subject to paragraph (c)(3) of this section, the lead agency
must obtain parental consent, in accordance with Sec. 303.401(a),
before transmitting any records about the child.
(ii) The records referred to in paragraph (c) of this section
include any personally identifiable information about the child,
including--
(A) Evaluation and assessment information required in Sec. 303.322;
and
(B) Copies of IFSPs that have been developed and implemented in
accordance with Secs. 303.340 through 303.346.
(3) Consent is not required before transmitting directory
information about a child to an LEA (e.g., the child's name, address,
telephone number, and age), if the information is provided for the
specific purpose of assisting the LEA in implementing the child find
requirements under 34 CFR 300.125.
(d) Conference to discuss services. The application must describe
how the lead agency will--
(1) In the case of a child who may be eligible for preschool
services under Part B of the Act, with the approval of the parents of
the child, convene a conference among the lead agency, the family, and
the LEA at least 90 days (and at the discretion of the parties, up to 6
months) before the child is eligible for the preschool services, to
discuss any services that the child may receive; or
(2) In the case of a child who may not be eligible for preschool
services under Part B of the Act, with the approval of the parents of
the child, make reasonable efforts to convene a conference among the
lead agency, the family, and providers of other appropriate services
for children who are not eligible for preschool services under Part B,
to discuss the appropriate services that the child may receive.
(e) Program options; transition plan. The application must include
a description of the policies and procedures to be used--
(1) To review the child's program options for the period from the
child's third birthday through the remainder of the school year; and
(2) To establish a transition plan for the child.
(f) Interagency agreement. If the State educational agency (SEA)
(the agency responsible for administering preschool programs under part
B of the Act) is not the lead agency under this part, the policies and
procedures described in paragraph (a) of this section must provide for
the establishment of an interagency agreement between the lead agency
and the SEA, to ensure appropriate coordination on transition matters.
(Authority: 20 U.S.C. 1437(a)(8))
[[Page 53839]]
Note: Among the matters that should be considered in developing
policies and procedures to ensure a smooth transition of children
from one program to the other are the following:
The financial responsibilities of all appropriate agencies.
The responsibility for performing evaluations of children.
The development and implementation of an individualized
education program (IEP) or an IFSP for each child, consistent with
the requirements of law (see Sec. 303.344(i), section 612(a)(9) of
the Act, and 34 CFR 300.132).
The coordination of communication between agencies and the
child's family.
The mechanisms to ensure the uninterrupted provision of
appropriate services to the child.
Components of a Statewide System--Application Requirements
Sec. 303.160 Minimum components of a statewide system.
Each application must address the minimum components of a statewide
system of coordinated, comprehensive, multidisciplinary, interagency
programs providing appropriate early intervention services 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. The
minimum components of a statewide system are described in Secs. 303.161
through 303.176.
(Authority: 20 U.S.C. 1435(a), 1437(a)(9))
Sec. 303.161 State definition of developmental delay.
Each application must include the State's definition of
developmental delay, as required in Sec. 303.300(b).
(Authority: 20 U.S.C. 1435(a)(1))
Sec. 303.162 Central directory.
Each application must include information and assurances
demonstrating to the satisfaction of the Secretary that the State has
developed a central directory of information that meets the
requirements in Sec. 303.301.
(Authority: 20 U.S.C. 1435(a)(7))
Sec. 303.163 [Reserved]
Sec. 303.164 Public awareness program.
Each application must include information and assurances
demonstrating to the satisfaction of the Secretary that the State has
established a public awareness program that meets the requirements in
Sec. 303.320.
(Authority: 20 U.S.C. 1435(a)(6))
Sec. 303.165 Comprehensive child find system.
Each application must include--
(a) The policies and procedures required in Sec. 303.321(b);
(b) Information demonstrating that the requirements on coordination
in Sec. 303.321(c) are met;
(c) The referral procedures required in Sec. 303.321(d), and
either--
(1) A description of how the referral sources are informed about
the procedures; or
(2) A copy of any memorandum or other document used by the lead
agency to transmit the procedures to the referral sources; and
(d) The timelines in Sec. 303.321(e).
(Authority: 20 U.S.C. 1435(a)(5))
Sec. 303.166 Evaluation, assessment, and nondiscriminatory procedures.
Each application must include information to demonstrate that the
requirements in Secs. 303.322 and 303.323 are met.
(Authority: 20 U.S.C. 1435(a)(3); 1436(a)(1), (d)(2), and (d)(3))
Sec. 303.167 Individualized family service plans.
Each application must include the following:
(a) An assurance that a current IFSP is in effect and implemented
for each eligible child and the child's family.
(b) Information demonstrating that--
(1) The State's procedures for developing, reviewing, and
evaluating IFSPs are consistent with the requirements in Secs. 303.340
through 303.343, and 303.345; and
(2) The content of IFSPs used in the State is consistent with the
requirements in Sec. 303.344.
(c) Policies and procedures on natural environments that meet the
requirements of Secs. 303.341 and 303.344(d)(3).
(Authority: 20 U.S.C. 1435(a)(4), 1436(d))
Sec. 303.168 Comprehensive system of personnel development (CSPD).
Each application must include information to show that the
requirements in Sec. 303.360(b) are met.
(Authority: 20 U.S.C. 1435(a)(8))
Sec. 303.169 Personnel standards.
Each application must include policies and procedures that are
consistent with the requirements in Sec. 303.361.
(Authority: 20 U.S.C. 1435(a)(9))
Sec. 303.170 Procedural safeguards.
Each application must include procedural safeguards that--
(a) Are consistent with Secs. 303.400 through 303.406, 303.419
through 303.425 and 303.460; and
(b) Incorporate either--
(1) The due process procedures in 34 CFR 300.506 through 300.512;
or
(2) The procedures that the State has developed to meet the
requirements in Secs. 303.419, 303.420(b), and 303.421 through 303.425.
(Authority: 20 U.S.C. 1435(a)(13))
Sec. 303.171 Supervision and monitoring of programs.
Each application must include information to show that the
requirements in Sec. 303.501 are met.
(Authority: 20. U.S.C. 1435(a)(10)(A))
Sec. 303.172 Lead agency procedures for resolving complaints.
Each application must include procedures that are consistent with
the requirements in Secs. 303.510 through 303.512.
(Authority: 20 U.S.C. 1435(a)(10))
Sec. 303.173 Policies and procedures related to financial matters.
Each application must include/the following:
(a) Funding policies that meet the requirements in Sec. 303.519.
(b)(1) Information about funding sources, as required in
Sec. 303.522, including the identification of each State agency that
provides early intervention services, or funding for those services,
for children eligible under Part C, even if the agency does not receive
Part C funds.
(2) The information required in paragraph (b)(1) of this section
must include--
(i) The name of the agency; and
(ii)(A) The specific funds used by the agency for early
intervention services (e.g., State Medicaid or State special education
funds); and
(B) The intended use of those funds.
(c) Procedures to ensure the timely delivery of services, in
accordance with Sec. 303.525.
(d) A procedure related to the timely reimbursement of funds under
this part, in accordance with Secs. 303.527(b) and 303.528.
(Authority: 20 U.S.C. 1435(a)(10) (D) and (E), 1435(a)(12), 1440)
Sec. 303.174 Interagency agreements; resolution of individual
disputes.
Each application must include--
[[Page 53840]]
(a) A copy of each interagency agreement that has been developed
under Sec. 303.523; and
(b) Information to show that the requirements in Sec. 303.524 are
met.
(Authority: 20 U.S.C. 1435(a)(10)(E) and (F))
Sec. 303.175 Policy for contracting or otherwise arranging for
services.
Each application must include a policy that meets the requirements
in Sec. 303.526.
(Authority: 20 U.S.C. 1435(a)(11))
Sec. 303.176 Data collection.
Each application must include procedures that meet the requirements
in Sec. 303.540.
(Authority: 20 U.S.C. 1435(a)(14))
Participation by the Secretary of the Interior
Sec. 303.180 Payments to the Secretary of the Interior for Indian
tribes and tribal organizations.
(a) The Secretary makes payments to the Secretary of the Interior
for the coordination of assistance in the provision of early
intervention services by the 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
Department of the Interior.
(b)(1) The Secretary of the Interior must distribute payments under
this part to tribes or tribal organizations (as defined under section 4
of the Indian Self-Determination and Education Assistance Act), or
combinations of those entities, in accordance with section 684(b) of
the Act.
(2) A tribe or tribal organization is eligible to receive a payment
under this section if the tribe is on a reservation that is served by
an elementary or secondary school operated or funded by the Bureau of
Indian Affairs (BIA).
(c)(1) Within 90 days after the end of each fiscal year the
Secretary of the Interior must provide the Secretary with a report on
the payments distributed under this section.
(2) The report must include--
(i) The name of each tribe, tribal organization, or combination of
those entities that received a payment for the fiscal year;
(ii) The amount of each payment; and
(iii) The date of each payment.
(Authority: 20 U.S.C. 1443(b))
Subpart C--Procedures for Making Grants to States
Sec. 303.200 Formula for State allocations.
(a) For each fiscal year, from the aggregate amount of funds
available under this part for distribution to the States, the Secretary
allots to each State an amount that bears the same ratio to the
aggregate amount as the number of infants and toddlers in the State
bears to the number of infants and toddlers in all States.
(b) For the purpose of allotting funds to the States under
paragraph (a) of this section--
(1) Aggregate amount means the amount available for distribution to
the States after the Secretary determines the amount of payments to be
made to the Secretary of the Interior under Sec. 303.203 and to the
jurisdictions under Sec. 303.204;
(2) Infants and toddlers means children from birth through age two
in the general population, based on the most recent satisfactory data
as determined by the Secretary; and
(3) State means each of the 50 States, the District of Columbia,
and the Commonwealth of Puerto Rico.
(Authority: 20 U.S.C. 1443(c))
Sec. 303.201 Distribution of allotments from non-participating States.
If a State elects not to receive its allotment, the Secretary
reallots those funds among the remaining States, in accordance with
Sec. 303.200(a).
(Authority: 20 U.S.C. 1443(d))
Sec. 303.202 Minimum grant that a State may receive.
No State receives less than 0.5 percent of the aggregate amount
available under Sec. 303.200 or $500,000, whichever is greater.
(Authority: 20 U.S.C. 1443(c)(2))
Sec. 303.203 Payments to the Secretary of the Interior.
The amount of the payment to the Secretary of the Interior under
Sec. 303.180 for any fiscal year is 1.25 percent of the aggregate
amount available to States after the Secretary determines the amount of
payments to be made to the jurisdictions under Sec. 303.204.
(Authority: 20 U.S.C. 1443(b))
Sec. 303.204 Payments to the jurisdictions.
(a) From the sums appropriated to carry out this part for any
fiscal year, the Secretary may reserve up to 1 percent for payments to
the jurisdictions listed in Sec. 303.2 in accordance with their
respective needs.
(b) The provisions of Pub. L. 95-134, permitting the consolidation
of grants to the outlying areas, do not apply to funds provided under
paragraph (a) of this section.
(Authority: 20 U.S.C. 1443(a))
Subpart D--Program and Service Components of a Statewide System of
Early Intervention Services
General
Sec. 303.300 Child eligibility--criteria and procedures.
(a) General. (1) Each statewide system of early intervention
services (system) must include the eligibility criteria and procedures,
consistent with Sec. 303.16, that--
(i) Will be used by the State in carrying out programs under this
part; and
(ii) Meet the requirements in paragraphs (b) through (d) of the
section.
(2) The information required in paragraph (a)(1) of this section
must be on file in the State, and be available for public review.
(b) State definition of developmental delay. The State must define
developmental delay by--
(1) Describing, for each of the areas listed in Sec. 303.16(a)(1),
the procedures, including the use of informed clinical opinion, that
will be used to measure a child's development; and
(2) Stating the levels of functioning or other criteria that
constitute a developmental delay in each of those areas.
(c) Diagnosed condition. The State must describe the criteria and
procedures, including the use of informed clinical opinion, that will
be used to determine the existence of a condition that has a high
probability of resulting in developmental delay under
Sec. 303.16(a)(2).
(d) Children who are at risk. If the State elects to include in its
system children who are at risk under Sec. 303.16(b), the State must
describe the criteria and procedures, including the use of informed
clinical opinion, that will be used to identify those children.
(Authority: 20 U.S.C. 1432(5), 1435(a)(1))
Note to Sec. 303.300: Under this section and 303.322(c)(2),
States are required to ensure that informed clinical opinion is used
in determining a child's eligibility under this part. Informed
clinical opinion is especially important if there are no
standardized measures, or if the standardized procedures are not
appropriate for a given age or developmental area. If a given
standardized procedure is considered to be appropriate, a State's
criteria could include percentiles or percentages of levels of
functioning on standardized measures.
Sec. 303.301 Central directory.
(a) Each system must include a central directory of information
about--
[[Page 53841]]
(1) Public and private early intervention services, resources, and
experts available in the State;
(2) Research and demonstration projects being conducted in the
State; and
(3) Professional and other groups (including parent support groups
and advocate associations) that provide assistance to children eligible
under this part and their families.
(b) The information required in paragraph (a) of this section must
be in sufficient detail to--
(1) Ensure that the general public will be able to determine the
nature and scope of the services and assistance available from each of
the sources listed in the directory; and
(2) Enable the parent of a child eligible under this part to
contact, by telephone or letter, any of the sources listed in the
directory.
(c) The central directory must be--
(1) Updated at least annually; and
(2) Accessible to the general public.
(d) To meet the requirements in paragraph (c)(2) of this section,
the lead agency must arrange for copies of the directory to be
available--
(1) In each geographic region of the State, including rural areas;
and
(2) In places and a manner that ensure accessibility by persons
with disabilities.
Authority: 20 U.S.C. 1435(a)(7))
Sec. 303.302 Service coordination.
(a) General. (1) Each system must ensure that service coordination
is available to assist and enable a child eligible under this part and
the child's family to receive the rights, procedural safeguards, and
services that are authorized to be provided under the State's early
intervention program.
(2)(i) If a State has an existing service coordination system, the
State may use or adapt that system, so long as it is consistent with
the requirements of this part.
(ii) A public agency's use of the term service coordination is not
intended to affect the agency's authority to seek reimbursement for
services provided under Medicaid or any other legislation that makes
reference to case management services.
(b) Entitlement to service coordination. (1) Each eligible child
and the child's family must be provided with one service coordinator
who is responsible for--
(i) Coordinating all services across agency lines; and
(ii) Serving as the single point of contact in helping parents to
obtain the services and assistance they need.
(2) In accordance with paragraphs (b)(1), (c), and (d) of this
section, service coordination is an on-going, coordinative process
designed to facilitate and enhance the delivery of early intervention
services under this part. Therefore, service coordination is not
required to be included in the statement of services under
Sec. 303.344(d)(1).
(c) Scope of service coordination. Service coordination is an
active, ongoing process that involves--
(1) Assisting parents of eligible children in gaining access to the
early intervention services and other services identified in the
individualized family service plan;
(2) Coordinating the provision of early intervention services and
other services (such as medical services for other than diagnostic and
evaluation purposes) that the child needs or is being provided;
(3) Facilitating the timely delivery of available services; and
(4) Continuously seeking the appropriate services and situations
necessary to benefit the development of each child being served for the
duration of the child's eligibility.
(d) Specific service coordination activities. Service coordination
activities include--
(1) Coordinating the performance of evaluations and assessments;
(2) Facilitating and participating in the development, review, and
evaluation of IFSPs;
(3) Assisting families in identifying available service providers;
(4) Coordinating and monitoring the delivery of available services;
(5) Informing families of the availability of advocacy services;
(6) Coordinating with medical and health providers;
(7) Facilitating the development of a transition plan to preschool
services, if appropriate; and
(8) At the discretion of the State, assisting families--
(i) To understand the sources of financing early intervention
services, including public and private insurance programs, and how to
access those sources; and
(ii) To be knowledgeable about any potential long-term costs
involved in accessing the sources described in paragraph (d)(8)(i) of
this section, and how to minimize those costs.
(e) Employment and assignment of service coordinators. (1) Service
coordinators may be employed or assigned in any way that is permitted
under State law, so long as it is consistent with the requirements of
this part.
(2) A State's policies and procedures for implementing the
statewide system of early intervention services must be designed and
implemented to ensure that service coordinators are able to effectively
carry out on an interagency basis the functions and services listed
under paragraphs (a) and (b) of this section.
(f) Qualifications of service coordinators. Service coordinators
must be persons who, consistent with Sec. 303.344(h), have demonstrated
knowledge and understanding about--
(1) Infants and toddlers who are eligible under this part;
(2) Part C of the Act and the regulations in this part; and
(3) The nature and scope of services available under the State's
early intervention program, the system of payments for services in the
State, and other pertinent information.
(Authority: 20 U.S.C. 1432(4); 14353(a)(4), 1436(d)(7), H.R. Rep.
No. 198, 102d Cong., 1st Sess. 12 (1991); S. Rep. No. 84, 102d
Cong., 1st Sess. 20 (1991).
Identification and Evaluation
Sec. 303.320 Public awareness program.
(a) Each system must include a public awareness program that--
(1) Focuses on the early identification of children who are
eligible to receive early intervention services under this part; and
(2) Includes--
(i) The preparation by the lead agency of information for parents
on the availability of early intervention services under this part, and
how to access those services; and
(ii)(A) The agency's dissemination of the information to all
primary referral sources identified in Sec. 303.321(d)(3) (especially
physicians and hospitals) for their use in providing the information to
parents of infants and toddlers; and
(B) Procedures for determining the extent to which the primary
referral sources disseminate the information to the parents.
(b) The public awareness program must provide for informing the
public about--
(1) The State's early intervention program;
(2) The child find system, including--
(i) The purpose and scope of the system;
(ii) How to make referrals; and
(iii) How to gain access to a comprehensive, multidisciplinary
evaluation and other early intervention services; and
(3) The central directory.
(Authority: 20 U.S.C. 1435(a)(6))
Note 1 to Sec. 303.320: An effective public awareness program is
one that does the following:
[[Page 53842]]
Provides a continuous, ongoing effort that is in effect
throughout the State, including rural areas;
Provides for the involvement of, and communication with, major
organizations throughout the 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.
Note 2 to Sec. 303.320: Examples of methods for informing the
general public about the provisions of this part include: use of
television, radio, and newspaper releases, pamphlets and posters
displayed in physicians' offices, hospitals, and other appropriate
locations, and the use of a toll-free telephone service.
Sec. 303.321 Comprehensive child find system.
(a) General. (1) Each system must include a comprehensive child
find system that is consistent with part B of the Act (see 34 CFR
300.125), and meets the requirements of paragraphs (b) through (e) of
this section.
(2) The lead agency, with the advice and assistance of the Council,
must be responsible for implementing the child find system.
(b) Policies and procedures. The child find system must include the
policies and procedures that the State will follow to ensure that--
(1) All infants and toddlers in the State who are eligible for
services under this part are identified, located, and evaluated,
including children with disabilities from--
(i) Traditionally underserved groups, including minority, low-
income, inner-city, and rural families; and
(ii) Highly mobile groups (such as migrant and homeless families);
and
(2) An effective method is developed and implemented to determine
which children are receiving needed early intervention services.
(c) Coordination. (1) The lead agency, with the assistance of the
Council, must ensure that the child find system under this part is
coordinated with all other major efforts to locate and identify
children conducted by other State agencies responsible for
administering the various education, health, and social service
programs relevant to this part, tribes and tribal organizations that
receive payments under this part, and other tribes and tribal
organizations as appropriate, including efforts in the--
(i) Program authorized under part B of the Act;
(ii) Maternal and Child Health program under title V of the Social
Security Act;
(iii) Early Periodic Screening, Diagnosis and Treatment (EPSDT)
program under title XIX of the Social Security Act;
(iv) Developmental Disabilities Assistance and Bill of Rights Act;
(v) Head Start Act; and
(vi) Supplemental Security Income program under title XVI of the
Social Security Act.
(2) The lead agency, with the advice and assistance of the Council,
must take steps to ensure that--
(i) There will not be unnecessary duplication of effort by the
various agencies involved in the State's child find system under this
part; and
(ii) The State will make use of the resources available through
each public agency in the State to implement the child find system in
an effective manner.
(d) Referral procedures. (1) The child find system must include
procedures for use by primary referral sources for referring a child to
the appropriate public agency within the system for--
(i) Evaluation and assessment, in accordance with Secs. 303.322 and
303.323; or
(ii) As appropriate, the provision of services, in accordance with
Sec. 303.342(a) or Sec. 303.345.
(2) The procedures required in paragraph (b)(1) of this section
must--
(i) Provide for an effective method of making referrals by primary
referral sources;
(ii) Ensure that referrals are made as soon as reasonably possible
after a child has been identified; and
(iii) Include, in accordance with Sec. 303.320(a)(2)(ii)(B),
procedures for determining the extent to which primary referral
sources, especially hospitals and physicians, disseminate information
on the availability of early intervention services to parents of
infants and toddlers.
(3) As used in paragraph (d)(1) of this section, primary referral
sources includes, if appropriate--
(i) Hospitals, including prenatal and postnatal care facilities;
(ii) Physicians;
(iii) Parents;
(iv) Day care and child care programs;
(v) Local educational agencies;
(vi) Public health facilities;
(vii) Other social service agencies;
(viii) Other health care providers; and
(ix) Other Federally funded programs such as Head Start, Early Head
Start, and Even Start.
(e) Timelines for public agencies to act on referrals. (1) Once the
public agency receives a referral, it must appoint a service
coordinator as soon as possible.
(2) Within 45 days after it receives a referral, the public agency
must--
(i) Complete the evaluation and assessment activities in
Sec. 303.322; and
(ii) Hold an IFSP meeting, in accordance with Sec. 303.342.
(Authority: 20 U.S.C. 1431(a)(5), 1432(4)(E)(vii), 1435(a)(5))
Note to Sec. 303.321: In developing the child find system under
this part, States should consider tracking systems based on high-
risk conditions at birth, and other activities that are being
conducted by various agencies or organizations in the State.
Sec. 303.322 Evaluation and assessment.
(a) General. (1) Each system must include the performance of--
(i) A timely, comprehensive, multidisciplinary evaluation of each
child, birth through age two, referred for evaluation; and
(ii) A family-directed identification of the needs of each child's
family to appropriately assist in the development of the child, that
meets the requirements of paragraph (d) of this section.
(2) The lead agency must be responsible for ensuring that the
requirements of this section are implemented by all affected public
agencies and service providers in the State.
(b) Definitions of evaluation and assessment. As used in this
part--
(1) Evaluation means the procedures used by appropriate qualified
personnel to determine a child's initial and continuing eligibility
under this part, consistent with the definition of ``infants and
toddlers with disabilities'' in Sec. 303.16, including determining the
status of the child in each of the developmental areas in paragraph
(c)(3)(ii) of this section.
(2) Assessment means the ongoing procedures used by appropriate
qualified personnel throughout the period of a child's eligibility
under this part to identify--
(i) The child's unique strengths and needs and the services
appropriate to meet those needs; and
(ii) The resources, priorities, and concerns of the family, and the
supports and services necessary to enhance the family's capacity to
meet the developmental needs of the child.
(c) Evaluation and assessment of the child. The evaluation and
assessment of each child must--
(1) Be conducted by personnel trained to utilize appropriate
methods and procedures;
(2) Be based on informed clinical opinion; and
[[Page 53843]]
(3) Include the following:
(i) A review of pertinent records related to the child's current
health status and medical history.
(ii) An evaluation of the child's level of functioning in each of
the following developmental areas:
(A) Cognitive development.
(B) Physical development, including vision and hearing.
(C) Communication development.
(D) Social or emotional development.
(E) Adaptive development.
(iii) An assessment of the unique needs of the child in terms of
each of the developmental areas in paragraph (c)(3)(ii) of this
section, including the identification of services appropriate to meet
those needs.
(d) Family assessment. (1) Family assessments under this part must
be family-directed and designed to determine 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 child.
(2) Any assessment that is conducted must be voluntary on the part
of the family.
(3) If an assessment of the family is carried out, the assessment
must--
(i) Be conducted by personnel trained to utilize appropriate
methods and procedures;
(ii) Be based on information provided by the family through a
personal interview; and
(iii) Incorporate the family's description of its resources,
priorities, and concerns related to enhancing the child's development.
(e) Timelines. (1) Except as provided in paragraph (e)(2) of this
section, the evaluation and initial assessment of each child (including
the family assessment) must be completed within the 45-day time period
required in Sec. 303.321(e).
(2) The lead agency must develop procedures to ensure that in the
event of exceptional circumstances that make it impossible to complete
the evaluation and assessment within 45 days (e.g., if a child is ill),
public agencies will--
(i) Document those circumstances; and
(ii) Develop and implement an interim IFSP, to the extent
appropriate and consistent with Sec. 303.345(b)(1) and (b)(2).
(Authority: 20 U.S.C. 1435(a)(3); 1436(a)(1), (a)(2), (d)(1), and
(d)(2))
Sec. 303.323 Nondiscriminatory procedures.
Each lead agency must adopt nondiscriminatory evaluation and
assessment procedures. The procedures must provide that public agencies
responsible for the evaluation and assessment of children and families
under this part must ensure, at a minimum, that--
(a) Tests and other evaluation materials and procedures are
administered in the native language of the parents or other mode of
communication, unless it is clearly not feasible to do so;
(b) Any assessment and evaluation procedures and materials that are
used are selected and administered so as not to be racially or
culturally discriminatory;
(c) No single procedure is used as the sole criterion for
determining a child's eligibility under this part; and
(d) Evaluations and assessments are conducted by qualified
personnel.
(Authority: 20 U.S.C. 1435(a)(3); 1436(a)(1), (d)(2), and (d)(3))
Individualized Family Service Plans (IFSPs)
Sec. 303.340 Definition of IFSP; lead agency responsibility.
(a) Definition of IFSP. As used in this part, individualized family
service plan and IFSP mean a written plan for providing early
intervention services to a child eligible under this part and the
child's family that--
(1) Is developed by the child's IFSP team, in accordance with
Secs. 303.341 through 303.343;
(2) Is based on the evaluation and assessment described in
Sec. 303.322; and
(3) Includes the information required in Sec. 303.344, as
determined by the IFSP team.
(b) Lead agency responsibility. The lead agency in each State must
ensure that--
(1) The State's early intervention system under this part has in
effect policies and procedures on IFSPs that meet the requirements of
this section and Secs. 303.341 through 303.346; and
(2)(i) An IFSP is developed and implemented for each eligible
child, in accordance with the requirements of this part.
(ii) If there is a dispute between agencies as to who has
responsibility for developing or implementing an IFSP, the lead agency
must resolve the dispute or assign responsibility.
(Authority: 20 U.S.C. 1436)
Note to Sec. 303.340: In instances where an eligible child must
have both an IFSP and an individualized service plan under another
Federal program, it may be possible to develop a single consolidated
document, provided that it contains all of the required information
in Sec. 303.344, and is developed in accordance with the
requirements of this part.
Sec. 303.341 Policies and procedures on natural environments.
(a) General. Each system must have in effect, in accordance with
paragraphs (b) through (d) of this section, policies and procedures to
ensure that--
(1) To the maximum extent appropriate, early intervention services
are provided in natural environments; and
(2) The provision of early intervention services for each eligible
child occurs in a setting other than a natural environment only if the
IFSP team, based on the evaluation and assessment required in
Sec. 303.322 and the information required in Sec. 303.344(a) through
(c), determines that early intervention cannot be achieved
satisfactorily for the child in a natural environment.
(b) Determination of natural environment for each IFSP service. (1)
The IFSP team for each eligible child under this part must determine,
for each early intervention service to be provided to the child, if the
child's needs can be met in a natural environment.
(2) If, after making the determinations required by paragraph
(b)(1) of this section, the team determines that a specific service for
the child must be provided in a setting other than a natural
environment (such as in a center-based program that serves children
with disabilities, or another setting appropriate to the age and needs
of the child), a justification that meets the requirements of paragraph
(c) of this section must be included in the child's IFSP.
(c) Justification. The justification required in paragraph (b)(2)
of this section must--
(1) Include a statement describing the basis of the IFSP team's
decision to provide a specific early intervention service for the child
in a setting other than a natural environment;
(2) Be based on the identified needs of the child and the projected
outcomes, as determined by the evaluation and assessment required in
Sec. 303.322 and the information required in Sec. 303.344(a) through
(c); and
(3) If appropriate, be based on the nature of the service required
to meet the unique needs of the child.
(d) Services to parents or other family members. The provisions on
natural environments in this part do not apply to services listed in an
IFSP that are intended to meet the needs of the parents or other family
members and not the needs of the child (e.g., participation of a parent
in a parent-support program).
(Authority: 20 U.S.C. 1435(a)(4), (a)(16), 1436(d)(5))
[[Page 53844]]
Sec. 303.342 Development, review, and revision of IFSPs.
(a) Development of IFSP. (1) General. For a child who has been
evaluated for the first time and determined to be eligible, a meeting
to develop the initial IFSP for the child must be conducted within the
45-day time period required in Sec. 303.321(e).
(2) Consideration of special factors. In developing each child's
IFSP, the IFSP team must--
(i) In the case of a child whose behavior impedes his or her
development, consider, if appropriate, strategies, including positive
behavioral interventions, strategies, and supports to address that
behavior;
(ii) In the case of a child of a family with limited English
proficiency, consider the language needs of the child and the family as
those needs relate to the child's IFSP;
(iii) In the case of a child who is blind or visually impaired, if
appropriate, provide for exposing the child to pre-literacy or
readiness activities related to the use of Braille (e.g., through
tactile stimulation and the use of ``raised'' picture books);
(iv) Consider the communication needs of the child, and, in the
case of a child who is deaf or hard of hearing, consider--
(A) The appropriateness of oral stimulation and language-
development activities; and
(B) Opportunities for direct communication with peers, professional
personnel, and deaf adults in the child's language and communication
mode, consistent with the developmental level of the child; and
(v) Consider whether the child requires assistive technology
devices and services.
(b) Periodic review. (1) A review of the IFSP for each eligible
child and the child's family must be conducted every six months, or
more frequently if conditions warrant or if the family requests a
review.
(2) The purpose of the periodic review is to determine--
(i) The degree to which progress toward achieving the outcomes is
being made; and
(ii) Whether modification or revision of the outcomes or services
is necessary.
(3) The review may be carried out in a meeting or by another means
that is acceptable to the parents and other participants.
(c) Annual meeting to evaluate the IFSP. (1) A meeting must be
conducted on at least an annual basis to evaluate the IFSP for each
eligible child and the child's family, and, as appropriate, to revise
its provisions.
(2) The results of any current evaluations conducted under
Sec. 303.322(c), and other information available from the ongoing
assessment of the child and family, are used at the meeting in
determining what services are needed and will be provided.
(d) Accessibility and convenience of meetings. (1) IFSP meetings
must be conducted--
(i) In settings and at times that are convenient to families; and
(ii) In the native language of the family or other mode of
communication used by the family, unless it is clearly not feasible to
do so; and
(2) Meeting arrangements are made with, and written notice provided
to, the family and other participants early enough before the meeting
date to ensure that they will be able to attend.
(e) Parental consent before providing services. The contents of the
IFSP must be fully explained to the parents and informed written
consent from the parents must be obtained prior to the provision of
early intervention services described in the plan. If the parents do
not provide consent with respect to a particular early intervention
service or withdraw consent after first providing it, that service may
not be provided. The early intervention services to which parental
consent is obtained must be provided.
(Authority: 20 U.S.C. 1436)
Note to Sec. 303.342: The requirement for the annual evaluation
incorporates the periodic review process. Therefore, it is necessary
to have only one separate periodic review each year (i.e., six
months after the initial and subsequent annual IFSP meetings),
unless conditions warrant otherwise.
Because the needs of infants and toddlers change so rapidly
during the course of a year, certain evaluation or assessment
procedures may need to be repeated before conducting the periodic
reviews and annual evaluation meetings in paragraphs (b) and (c) of
this section.
Sec. 303.343 IFSP team--meetings and periodic reviews.
(a) Initial and annual IFSP meetings. (1) Each initial meeting and
each annual meeting to evaluate the IFSP must include the following
participants:
(i) The parent or parents of the child.
(ii) Other family members, as requested by the parent, if feasible
to do so.
(iii) An advocate or person outside of the family, if the parent
requests that the person participate.
(iv) The service coordinator who has been working with the family
since the initial referral of the child for evaluation, or who has been
designated by the public agency to be responsible for implementation of
the IFSP.
(v) A person or persons directly involved in conducting the
evaluations and assessments in Sec. 303.322.
(vi) As appropriate, persons who will be providing services to the
child or family.
(2) If a person listed in paragraph (a)(1)(v) of this section (who
has been directly involved in conducting evaluations or assessments) is
unable to attend an IFSP meeting, the public agency must take steps to
ensure--
(i) The person's involvement through other means (e.g.,
participating in a telephone conference call); or
(ii) That the results of the evaluations and assessments are
appropriately interpreted at the meeting, by making pertinent records
available at the meeting, and having a person attend the meeting who is
qualified to interpret the evaluation and assessment results and their
service implications (who may be one of the participants described in
paragraphs (a)(1)(i) through (a)(1)(vi) of this section).
(b) Periodic reviews. Each periodic review must provide for the
participation of persons in paragraphs (a)(1)(i) through (a)(1)(iv) of
this section. If conditions warrant, provisions must be made for the
participation of other representatives identified in paragraph (a) of
this section.
(Authority: 20 U.S.C. 1436(b))
Sec. 303.344 Content of IFSP.
(a) Information about child's status. (1) The IFSP must include a
statement of the child's present levels of physical development
(including vision, hearing, and health status), cognitive development,
communication development, social or emotional development, and
adaptive development.
(2) The statement required in paragraph (a)(1) of this section must
be based on professionally acceptable objective criteria.
(b) Family information. (1) With the concurrence of the family, the
IFSP must include a statement of the family's resources, priorities,
and concerns related to enhancing the development of the child.
(2) The statement required in paragraph (b)(1) of this section must
be based on the family assessment conducted under Sec. 303.322(d).
(c) Outcomes. The IFSP must include a statement of the major
outcomes expected to be achieved for the child and family (based on the
evaluation and assessments required in Sec. 303.322(c) and (d)), and
the criteria, procedures, and timelines used to determine--
[[Page 53845]]
(1) The degree to which progress toward achieving the outcomes is
being made; and
(2) Whether modifications or revisions of the outcomes or services
are necessary.
(d) Early intervention services. (1) Statement of services. The
IFSP must include a statement of the specific early intervention
services necessary to meet the unique needs of the child and the family
to achieve the outcomes identified in paragraph (c) of this section.
The statement must include the information required in paragraphs
(d)(2) through (d)(4) of this section.
(2) Frequency, intensity, and method. (i) The IFSP must specify the
frequency, intensity, and method of delivering each early intervention
service.
(ii) As used in paragraph (d)(2)(i) of this section--
(A) Frequency and intensity mean the number of days or sessions
that a service will be provided, the length of time the service is
provided during each session, and whether the service is provided on an
individual or group basis; and
(B) Method means how a service is provided.
(3) Natural environments--location of services. In accordance with
Sec. 303.341, the IFSP must--
(i) Specify the natural environments (locations or settings) where
each early intervention service will be provided; and
(ii) Include a justification of the extent, if any, to which each
service will not be provided in a natural environment.
(4) Payment arrangements. The IFSP must include a statement of the
payment arrangements, if any, for each early intervention service.
(e) Evaluations and assessments. Except as provided in paragraph
Sec. 303.345, evaluations and assessments required under Sec. 303.322
(including evaluations in each of the developmental areas in
Sec. 303.322(c)(3)(ii), and those described under the applicable early
intervention services definitions in Sec. 303.12(b)) must be completed
prior to, and in preparation for, conducting the IFSP meeting for an
eligible child under this part. Therefore, conducting those evaluations
and assessments may not be listed as an early intervention service in
the IFSP.
(f) Other services. (1) To the extent appropriate, the IFSP must
include--
(i) Medical and other services that the child needs, but that are
not required under this part; and
(ii) 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.
(2) The requirement in paragraph (e)(1) of this section does not
apply to routine medical services (e.g., immunizations and ``well-
baby'' and care), unless a child needs those services and the services
are not otherwise available or being provided.
(g) Dates; duration of services. The IFSP must include--
(1) The projected dates for initiation of the services in paragraph
(d)(1) of this section as soon as possible after the IFSP meetings
described in Sec. 303.342; and
(2) The anticipated duration of those services.
(h) Service coordinator. (1) The IFSP must include the name of the
service coordinator from the profession most immediately relevant to
the child's or family's needs (or who is otherwise qualified to carry
out all applicable responsibilities under this part), who will be
responsible for the implementation of the IFSP and coordination with
other agencies and persons.
(2) In meeting the requirements in paragraph (h)(1) of this
section, the public agency may--
(i) Assign the same service coordinator who was appointed at the
time that the child was initially referred for evaluation to be
responsible for implementing a child's and family's IFSP; or
(ii) Appoint a new service coordinator.
(3) As used in paragraph (h)(1) of this section, the term
profession includes ``service coordination.''
(i) Transition from Part C services. (1) The IFSP must include the
steps to be taken to support the transition of the child, in accordance
with Sec. 303.148, to--
(i) Preschool services under Part B of the Act, to the extent that
those services are appropriate; or
(ii) Other services that may be available, if appropriate.
(2) The steps required in paragraph (i)(1) of this section
include--
(i) Discussions with, and training of, parents, as appropriate,
regarding future placements and other matters related to the child's
transition;
(ii) Procedures to prepare the child for changes in service
delivery, including steps to help the child adjust to, and function in,
a new setting;
(iii)(A) The transmission of information about the child to the LEA
or other relevant agency, in accordance with Sec. 303.148(c); and
(B) The holding of the conference in accordance with
Sec. 303.148(d); and
(iv) Other activities that the IFSP team determines are necessary
to support the transition of the child.
(Authority: 20 U.S.C. 1436(d))
Note 1 to Sec. 303.344: With respect to the requirements in
paragraph (e) of this section, the appropriate location of services
for some infants and toddlers might be a hospital setting--during
the period in which they require extensive medical intervention.
However, for these and other eligible children, early intervention
services must be provided in natural environments (e.g., the home,
childcare centers, or other community settings) to the maximum
extent appropriate to the needs of the child.
Note 2 to Sec. 303.344: Throughout the process of developing and
implementing IFSPs for an eligible child and the child's family, it
is important for agencies to recognize the variety of roles that
family members play in enhancing the child's development. It also is
important that the degree to which the needs of the family are
addressed in the IFSP process is determined in a collaborative
manner with the full agreement and participation of the parents of
the child. Parents retain the ultimate decision in determining
whether they, their child, or other family members will accept or
decline services under this part.
Note 3 to Sec. 303.344: The early intervention services in
paragraph (d) of this section are those services that a State is
required to provide to a child in accordance with Sec. 303.12.
However, the ``other services'' in paragraph (e) of this section are
services that a child or family needs, but that are neither required
nor covered under this part. While listing the non-required services
in the IFSP does not mean that those services must be provided,
their identification can be helpful to both the child's family and
the service coordinator, for the following reasons: First, the IFSP
would provide a comprehensive picture of the child's total service
needs (including the need for medical and health services, as well
as early intervention services). Second, it is appropriate for the
service coordinator to assist the family in securing the non-
required services (e.g., by determining if there is a public agency
that could provide financial assistance, if needed, assisting in the
preparation of eligibility claims or insurance claims, if needed,
and assisting the family in seeking out and arranging for the child
to receive the needed medical-health services).
Thus, to the extent appropriate, it is important for a State's
procedures under this part to provide for ensuring that other needs
of the child, and of the family related to enhancing the development
of the child, such as medical and health needs, are considered and
addressed, including determining who will provide each service, and
when, where, and how it will be provided, and how the service will
be paid for (e.g., through private insurance, an existing Federal-
State funding source, such as Medicaid or EPSDT, or some other
funding arrangement).
[[Page 53846]]
Note 4 to Sec. 303.344: Although the IFSP must include
information about each of the items in paragraphs (b) through (h) of
this section, this does not mean that the IFSP must be a detailed,
lengthy document. It might be a brief outline, with appropriate
attachments that address each of the points in the paragraphs under
this section. It is important for the IFSP itself to be clear about
what services are to be provided, the actions that are to be taken
by the service coordinator in initiating those services, and what
actions will be taken by the parents.
Sec. 303.345 Provision of services before evaluation and assessment
are completed.
Early intervention services for an eligible child and the child's
family may commence before the completion of the evaluation and
assessment in Sec. 303.322, if the following conditions are met:
(a) Parental consent is obtained.
(b) An interim IFSP is developed that includes--
(1) The name of the service coordinator who will be responsible,
consistent with Sec. 303.344 (h), for implementation of the interim
IFSP and coordination with other agencies and persons; and
(2) The early intervention services that have been determined to be
needed immediately by the child and the child's family.
(c) The evaluation and assessment are completed within the time
period required in Sec. 303.322(e), except under exceptional
circumstances as provided in Sec. 303.322(e)(2).
(Authority: 20 U.S.C. 1436(c))
Note to Sec. 303.345: This section is intended to accomplish two
specific purposes: to facilitate the provision of services in the
event that a child has obvious immediate needs that are identified,
even at the time of referral (e.g., a physician recommends that a
child with cerebral palsy begin receiving physical therapy as soon
as possible), and to ensure that the requirements for the timely
evaluation and assessment are not circumvented.
Sec. 303.346 Responsibility and accountability.
Each agency or person who has a direct role in the provision of
early intervention services is responsible for making a good faith
effort to assist each eligible child in achieving the outcomes in the
child's IFSP. However, part C of the Act does not require that any
agency or person be held accountable if an eligible child does not
achieve the growth projected in the child's IFSP.
(Authority: 20 U.S.C. 1436)
Personnel Training and Standards
Sec. 303.360 Comprehensive system of personnel development (CSPD).
(a) General CSPD requirements. Each system must include a
comprehensive system of personnel development that--
(1) Is consistent with the comprehensive system of personnel
development required under Part B of the Act and its implementing
regulations (section 612(a)(14), and 34 CFR 300.380 through 300.382);
and
(2) Meets the requirements in paragraphs (b) and (c) of this
section.
(b) Scope of training. The comprehensive system of personnel
development under this part must--
(1) Provide for preservice and inservice training to be conducted
on an interdisciplinary basis, to the extent appropriate;
(2) Provide for the training of a variety of personnel needed to
meet the requirements of this part, including public and private
providers, primary referral sources, paraprofessionals, and persons who
will serve as service coordinators; and
(3) Ensure that the training provided relates specifically to--
(i) Understanding the basic components of early intervention
services available in the State;
(ii) Meeting the interrelated social or emotional, health,
developmental, and educational needs of eligible children under this
part; and
(iii) Assisting families in enhancing the development of their
children, and in participating fully in the development and
implementation of IFSPs.
(c) Authorized activities. A personnel development system under
this part may include--
(1) Implementing innovative strategies and activities for the
recruitment and retention of early intervention service providers;
(2) Promoting the preparation of early intervention providers who
are fully and appropriately qualified to provide early intervention
services under this part;
(3) Training personnel to work in rural and inner-city areas; and
(4) Training personnel to coordinate transition services for
infants and toddlers with disabilities from an early intervention
program under this part to a preschool program under part B of the Act,
or to other preschool or other appropriate services.
(Authority: 20 U.S.C. 1435(a)(8))
Sec. 303.361 Personnel standards.
(a) Definitions. As used in this part--
(1) Appropriate professional requirements in the State means entry
level requirements that--
(i) Are based on the highest requirements in the State applicable
to the profession or discipline in which a person is providing early
intervention services; and
(ii) Establish suitable qualifications for personnel providing
early intervention services under this part to eligible children and
their families who are served by State, local, and private agencies.
(2) Highest requirements in the State applicable to a specific
profession or discipline means the highest entry-level academic degree
needed for any State approved or recognized certification, licensing,
registration, or other comparable requirements that apply to that
profession or discipline.
(3) Profession or discipline means a specific occupational category
that--
(i) Provides early intervention services to children eligible under
this part and their families;
(ii) Has been established or designated by the State; and
(iii) Has a required scope of responsibility and degree of
supervision.
(4) State approved or recognized certification, licensing,
registration, or other comparable requirements means the requirements
that a State legislature either has enacted or has authorized a State
agency to promulgate through rules to establish the entry-level
standards for employment in a specific profession or discipline in that
State.
(b) Policies and procedures. (1)(i) Each system must have policies
and procedures relating to the establishment and maintenance of
standards to ensure that personnel necessary to carry out the purposes
of this part are appropriately and adequately prepared and trained.
(ii) The policies and procedures required in paragraph (b)(1) of
this section must provide for the establishment and maintenance of
standards that are consistent with any State-approved or State-
recognized certification, licensing, registration, or other comparable
requirements that apply to the profession or discipline in which a
person is providing early intervention services.
(2) Each State may--
(i) Determine the specific occupational categories required to
provide early intervention services within the State; and
(ii) Revise or expand those categories as needed.
(3) Nothing in this part requires a State to establish a specified
training standard (e.g., a masters degree) for
[[Page 53847]]
personnel who provide early intervention services under Part C of the
Act.
(4) A State with only one entry-level academic degree for
employment of personnel in a specific profession or discipline may
modify that standard, as necessary, to ensure the provision of early
intervention services without violating the requirements of this
section.
(c) Steps for retraining or hiring personnel. To the extent that a
State's standards for a profession or discipline, including standards
for temporary or emergency certification, are not based on the highest
requirements in the State applicable to a specific profession or
discipline, the State's application for assistance under this part must
include--
(1) The steps the State is taking;
(2) The procedures for notifying public agencies and personnel of
those steps; and
(3) The timelines it has established for the retraining or hiring
of personnel that meet appropriate professional requirements in the
State.
(d) Status of personnel standards in the State. (1) In meeting the
requirements in paragraphs (b) and (c) of this section, a determination
must be made about the status of personnel standards in the State. That
determination must be based on current information that accurately
describes, for each profession or discipline in which personnel are
providing early intervention services, whether the applicable standards
are consistent with the highest requirements in the State for that
profession or discipline.
(2) The information required in paragraph (d)(1) of this section
must be on file in the lead agency, and available to the public.
(e) Applicability of State statutes and agency rules. In
identifying the ``highest requirements in the State'' for purposes of
this section, the requirements of all State statutes and the rules of
all State agencies applicable to serving children eligible under this
part and their families must be considered.
(f) Use of paraprofessionals and assistants. A State may allow
paraprofessionals and assistants who are appropriately trained and
supervised, in accordance with State law, regulations, or written
policy, to assist in the provision of early intervention services to
eligible children under this part.
(g) Policy to address shortage of personnel. (1) In implementing
this section, 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 eligible
children, including, in a geographic area of the State where there is a
shortage of personnel that meet these qualifications, the most
qualified individuals available who are making satisfactory progress
toward completing applicable course work necessary to meet the
standards described in paragraph (b)(2) of this section, consistent
with State law, within three years.
(2) If a State has reached its established timelines in paragraph
(c) of this section, the State may still exercise the option under
paragraph (g)(1) of this section for training or hiring all personnel
in a specific profession or discipline to meet appropriate professional
requirements in the State.
(3)(i) Each State must have a mechanism for serving eligible
children under this part if the need for early intervention services
exceeds appropriate professional requirements in the State for a
specific profession or discipline.
(ii) A State that continues to experience shortages of qualified
personnel must address those shortages in its comprehensive system of
personnel development under Sec. 303.361.
(Authority: 20 U.S.C. 1435(a)(9))
Subpart E--Procedural Safeguards
General
Sec. 303.400 General responsibility of lead agency for procedural
safeguards.
Each lead agency must be responsible for--
(a) Establishing or adopting procedural safeguards that meet the
requirements of this subpart; and
(b) Ensuring effective implementation of the safeguards by each
public agency in the State that is involved in the provision of early
intervention services under this part.
(Authority: 20 U.S.C. 1439)
Sec. 303.401 Definitions of consent, native language, and personally
identifiable information.
As used in this subpart--
(a) Consent means that--
(1) 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;
(2) The parent understands and agrees in writing to the carrying
out of the activity for which consent is sought, and the consent
describes that activity and lists the records (if any) that will be
released and to whom; and
(3)(i) The parent understands that the granting of consent is
voluntary on the part of the parent and may be revoked at any time.
(ii) If a parent revokes consent, that revocation is not
retroactive (i.e., it does not negate an action that has occurred after
the consent was given and before the consent was revoked);
(b) Native language, if used with reference to persons of limited
English proficiency, means the language or mode of communication
normally used by the parent of a child eligible under this part; and
(c) Personally identifiable means that information includes--
(1) The name of the child, the child's parent, or other family
member;
(2) The address of the child;
(3) A personal identifier, such as the child's or parent's social
security number; or
(4) A list of personal characteristics or other information that
would make it possible to identify the child with reasonable certainty.
(Authority: 20 U.S.C. 1439)
Sec. 303.402 Opportunity to examine records.
In accordance with the confidentiality procedures in the
regulations under part B of the Act (34 CFR 300.560 through 300.576),
the parents of a child eligible under this part must be afforded the
opportunity to inspect and review records relating to evaluations and
assessments, eligibility determinations, development and implementation
of IFSPs, due process hearings, and any other area under this part
involving records about the child and the child's family.
(Authority: 20 U.S.C. 1439(a)(4))
Sec. 303.403 Prior notice; native language.
(a) General. Written prior notice must be given to the parents of a
child eligible under this part a reasonable time before a public agency
or service provider proposes, or refuses, to initiate or change the
identification, evaluation, or placement of the child, or the provision
of appropriate early intervention services to the child and the child's
family.
(b) Content of notice. The notice must be in sufficient detail to
inform the parents about--
(1) The action that is being proposed or refused;
(2) The reasons for taking the action;
(3) All procedural safeguards that are available under
Secs. 303.401 through 303.460 of this part; and
(4) The State complaint procedures under Secs. 303.510-303.512,
including a description of how to file a complaint
[[Page 53848]]
and the timelines under those procedures.
(c) Native language. (1) The notice must be--
(i) Written in language understandable to the general public; and
(ii) Provided in the native language of the parents, unless it is
clearly not feasible to do so.
(2) If the native language or other mode of communication of the
parent is not a written language, the public agency, or designated
service provider, must take steps to ensure that--
(i) The notice is translated orally or by other means to the parent
in the parent's native language or other mode of communication;
(ii) The parent understands the notice; and
(iii) There is written evidence that the requirements of this
paragraph have been met.
(3) If a parent is deaf or blind, or has no written language, the
mode of communication must be that normally used by the parent (such as
sign language, braille, or oral communication).
(Authority: 20 U.S.C. 1439(a)(6) and (7))
Sec. 303.404 Parent consent.
(a) Written parental consent must be obtained before--
(1) Conducting the initial evaluation and assessment of a child
under Sec. 303.322; and
(2) Initiating the provision of early intervention services (see
Sec. 303.342(e)).
(b) If consent is not given, the public agency must make reasonable
efforts to ensure that the parent--
(1) Is fully aware of the nature of the evaluation and assessment
or the services that would be available; and
(2) Understands that the child will not be able to receive the
evaluation and assessment or services unless consent is given.
(Authority: 20 U.S.C. 1439)
Note 1 to Sec. 303.404: In addition to the consent requirements
in this section, other consent requirements are included in
Sec. 303.460(a), regarding the exchange of personally identifiable
information among agencies, and the confidentiality provisions in
the regulations under part B of the Act (34 CFR 300.571) and 34 CFR
part 99 (Family Educational Rights and Privacy), both of which apply
to this part.
Note 2 to Sec. 303.404: Under Sec. 300.505(b) of the Part B
regulations, a public agency may initiate procedures to challenge a
parent's refusal to consent to the initial evaluation of the
parent's child and, if successful, obtain the evaluation. This
provision applies to eligible children under this part, since the
part B evaluation requirement applies to all children with
disabilities in a State, including infants and toddlers.
Sec. 303.405 Parent right to decline service.
The parents of a child eligible under this part--
(a) May determine whether they, their child, or other family
members will accept or decline any early intervention service under
this part in accordance with State law; and
(b) May decline such a service after first accepting it, without
jeopardizing other early intervention services under this part.
(Authority: 20 U.S.C. 1439(a)(3))
Sec. 303.406 Surrogate parents.
(a) General. Each lead agency must ensure that the rights of
children eligible under this part are protected if--
(1) No parent (as defined in Sec. 303.19) can be identified;
(2) The public agency, after reasonable efforts, cannot discover
the whereabouts of a parent; or
(3) The child is a ward of the State under the laws of that State.
(b) Duty of lead agency and other public agencies. The duty of the
lead agency, or other public agency under paragraph (a) of this
section, includes the assignment of an individual to act as a surrogate
for the parent. This must include a method for--
(1) Determining whether a child needs a surrogate parent; and
(2) Assigning a surrogate parent to the child.
(c) Criteria for selecting surrogates. (1) The lead agency or other
public agency may select a surrogate parent in any way permitted under
State law.
(2) Public agencies must ensure that a person selected as a
surrogate parent--
(i) Has no interest that conflicts with the interests of the child
he or she represents; and
(ii) Has knowledge and skills that ensure adequate representation
of the child.
(d) Non-employee requirement; compensation. (1) A person assigned
as a surrogate parent may not be--
(i) An employee of any State agency; or
(ii) A person or an employee of a person providing early
intervention services to the child or to any family member of the
child.
(2) A person who otherwise qualifies to be a surrogate parent under
paragraph (d)(1) of this section is not an employee solely because he
or she is paid by a public agency to serve as a surrogate parent.
(e) Responsibilities. A surrogate parent may represent a child in
all matters related to--
(1) The evaluation and assessment of the child;
(2) Development and implementation of the child's IFSPs, including
annual evaluations and periodic reviews;
(3) The ongoing provision of early intervention services to the
child; and
(4) Any other rights established under this part.
(Authority: 20 U.S.C. 1439(a)(5))
Mediation and Due Process Procedures for Parents and Children
Sec. 303.419 Mediation.
(a) General. (1) Each State must ensure that procedures are
established and implemented to allow parties to disputes involving any
matter described in Sec. 303.403(a) to resolve the disputes through a
mediation process that, at a minimum, must be available whenever a
hearing is requested under Sec. 303.420.
(2) The lead agency may either use the mediation system established
under Part B of the Act or establish its own system.
(b) Requirements. The procedures must meet the following
requirements:
(1) The procedures must ensure that the mediation process--
(i) Is voluntary on the part of the parties;
(ii) Is not used to deny or delay a parent's right to a due process
hearing under Sec. 303.420, or to deny any other rights afforded under
Part C of the Act; and
(iii) Is conducted by a qualified and impartial mediator who is
trained in effective mediation techniques.
(2) The State must maintain a list of individuals who are qualified
mediators and knowledgeable in laws and regulations relating to the
provision of special education and related services.
(3) The State must bear the cost of the mediation process,
including the costs of meetings described in paragraph (c) of this
section.
(4) Each session in the mediation process must be scheduled in a
timely manner and must be held in a location that is convenient to the
parties to the dispute.
(5) An agreement reached by the parties to the dispute in the
mediation process must be set forth in a written mediation agreement.
(6) Discussions that occur during the mediation process must be
confidential and may not be used as evidence in any subsequent due
process hearings or civil proceedings, and the parties to the mediation
process may be required to sign a confidentiality pledge prior to the
commencement of the process.
(c) Meeting to encourage mediation. A State may establish
procedures to require parents who elect not to use the
[[Page 53849]]
mediation process to meet, at a time and location convenient to the
parents, with a disinterested party--
(1) Who is under contract with a parent training and information
center or community parent resource center in the State established
under sections 682 or 683 of the Act, or an appropriate alternative
dispute resolution entity; and
(2) Who would explain the benefits of the mediation process and
encourage the parents to use the process.
(Authority: 20 U.S.C. 1415(e) and 1439(a)(8))
Sec. 303.420 Due process procedures.
(a) Each system must include written procedures for the timely
administrative resolution of requests for due process hearings filed by
the parents of eligible children under this part concerning any of the
matters described in Sec. 303.403(a). A State may meet this requirement
by--
(1)(i) Adopting the mediation and due process procedures in 34 CFR
300.506-300.512; and
(ii) Developing procedures that meet the requirements of
Sec. 303.425; or
(2) Developing procedures that--
(i) Meet the mediation and due process requirements in Sec. 303.419
and Secs. 303.421-303.425; and
(ii) Provide parents an appropriate means of filing a request for a
due process hearing.
(b) If a parent initiates a hearing under paragraph (a)(1) or
(a)(2) of this section, the lead agency must inform the parent of the
availability of mediation described in Sec. 303.419.
(Authority: 20 U.S.C. 1439(a)(1), (8))
Note to Sec. 303.420: It is important that the administrative
procedures developed by a State be designed to result in speedy
resolution of complaints. An infant's or toddler's development is so
rapid that undue delay could be potentially harmful.
Sec. 303.421 Impartial hearing officer.
(a) Qualifications and duties. Each lead agency must ensure that
any due process hearings carried out under section 639 of the Act and
subpart E of this part are conducted by an impartial hearing officer
who--
(1) Has knowledge about the provisions of this part and the needs
of, and services available for, eligible children and their families;
and
(2) Performs the following duties:
(i) Listens to the presentation of relevant viewpoints about the
dispute that is the subject of the hearing.
(ii) Examines all information relevant to the issues.
(iii) Seeks to reach a timely resolution of the dispute.
(iv) Provides a record of the proceedings, including a written
decision.
(b) Definition of impartial. (1) As used in this section, impartial
means that a person who serves as a hearing officer in accordance with
this section--
(i) Is not an employee of any agency or other entity involved in
the provision of early intervention services or care of the child; and
(ii) Does not have a personal or professional interest that would
conflict with his or her objectivity in implementing the process.
(2) A person who otherwise qualifies under paragraph (b)(1) of this
section is not an employee of an agency solely because the person is
paid by the agency to implement the complaint resolution process.
(Authority: 20 U.S.C. 1439(a)(1))
Sec. 303.422 Parent rights in due process hearings.
(a) General. Each lead agency must ensure that the parents of
children eligible under this part are afforded the rights in paragraph
(b) of this section in any due process hearing carried out under
Sec. 303.420.
(b) Rights. Any parent involved in a due process hearing has the
right to--
(1) Be accompanied and advised by counsel and by individuals with
special knowledge or training with respect to early intervention
services for children eligible under this part;
(2) Present evidence and confront, cross-examine, and compel the
attendance of witnesses;
(3) Prohibit the introduction of any evidence at the proceeding
that has not been disclosed to the parent at least five days before the
proceeding;
(4) Obtain a written or electronic verbatim transcription of the
proceeding; and
(5) Obtain written findings of fact and decisions.
(Authority: 20 U.S.C. 1439)
Sec. 303.423 Convenience of hearings; timelines. Each lead agency must
ensure that--
(a) Any due process hearing conducted under this part is carried
out at a time and place that is reasonably convenient to the parents;
and
(b) Not later than 30 days after the receipt of a parent's request
for a due process hearing, the hearing is conducted and a written
decision is mailed to each of the parties.
(Authority: 20 U.S.C. 1439(a)(1))
Note: Under part B of the Act, States are allowed 45 days to
conduct an impartial due process hearing (i.e., within 45 days after
the receipt of a request for a hearing, a decision is reached and a
copy of the decision is mailed to each of the parties). (See 34 CFR
300.512.) Thus, if a State, in meeting the requirements of
Sec. 303.420, elects to adopt the due process procedures under part
B, that State would also have 45 days for hearings. However, any
State in that situation is encouraged (but not required) to
accelerate the timeline for the due process hearing for children who
are eligible under this part--from 45 days to the 30-day timeline in
this section. Because the needs of children in the birth-through-
two-age range change so rapidly, quick resolution of complaints is
important.
Sec. 303.424 Civil action.
Any party aggrieved by the findings and decision made under
Sec. 303.420 has the right to bring a civil action in State or Federal
court under section 639(a)(1) of the Act.
(Authority: 20 U.S.C. 1439(a)(1))
Sec. 303.425 Status of a child during proceedings.
(a) During the pendency of any administrative or judicial
proceeding involving a request for a due process hearing under
Sec. 303.420, unless the public agency and parents of a child otherwise
agree, the child must continue to receive the appropriate early
intervention services currently being provided.
(b) If the proceeding involves an application for initial services
under this part, the child must receive those services that are not in
dispute.
(c) This section does not apply if a child is transitioning from
early intervention services under this part to preschool services under
Part B of the Act.
(Authority: 20 U.S.C. 1439(a)(7))
Confidentiality
Sec. 303.460 Confidentiality of information.
(a) Each State must adopt or develop policies and procedures that
the State will follow in order to ensure the protection of any
personally identifiable information collected, used, or maintained
under this part, including the right of parents to written notice of
and written consent to the exchange of this information among agencies
consistent with Federal and State law.
(b) These policies and procedures must meet the requirements in 34
CFR 300.560-300.576, with the modifications specified in Sec. 303.5(b).
(Authority: 20 U.S.C. 1439(a)(2), 1442)
Note to Sec. 303.460: With the modifications referred to in
paragraph (b) of this section, the confidentiality requirements in
the regulations implementing part B of the Act (34 CFR 300.560
through 300.576) are to be
[[Page 53850]]
used by public agencies to meet the confidentiality requirements
under part C of the Act and this section (Sec. 303.460).
The part B provisions incorporate by reference the regulations
in 34 CFR part 99 (Family Educational Rights and Privacy);
therefore, those regulations also apply to this part.
Subpart F--State Administration
General
Sec. 303.500 Lead agency establishment or designation.
Each system must include a single line of responsibility in a lead
agency that--
(a) Is established or designated by the Governor; and
(b) Is responsible for the administration of the system, in
accordance with the requirements of this part.
(Authority: 20 U.S.C. 1435(a)(10))
Sec. 303.501 Supervision and monitoring of programs.
(a) General. Each lead agency is responsible for--
(1) The general administration and supervision of programs and
activities receiving assistance under this part; and
(2) The monitoring of programs and activities used by the State to
carry out this part, whether or not these programs or activities are
receiving assistance under this part, to ensure that the State complies
with this part.
(b) Methods of ensuring compliance. In meeting the requirement in
paragraph (a) of this section, the lead agency must adopt and use
proper methods of ensuring compliance, including--
(1) Monitoring agencies, institutions, and organizations used by
the State to carry out this part;
(2) Enforcing any obligations imposed on those agencies under part
C of the Act and these regulations;
(3) Providing technical assistance, if necessary, to those
agencies, institutions, and organizations; and
(4) Correcting deficiencies that are identified through monitoring.
(Authority: 20 U.S.C. 1435(a)(10)(A))
Lead Agency Procedures for Resolving Complaints
Sec. 303.510 Adopting complaint procedures.
(a) General. Each lead agency must adopt written procedures for--
(1) Resolving any complaint, including a complaint filed by an
organization or individual from another State, that any public agency
or private service provider is violating a requirement of Part C of the
Act or this part by--
(i) Providing for the filing of a complaint with the lead agency;
and
(ii) At the lead agency's discretion, providing for the filing of a
complaint with a public agency and the right to have the lead agency
review the public agency's decision on the complaint; and
(2) Widely disseminating to parents and other interested
individuals, including parent training centers, protection and advocacy
agencies, independent living centers, and other appropriate entities,
the State's procedures under Secs. 303.510 through 303.512.
(b) Remedies for denial of appropriate services. In resolving a
complaint in which it finds a failure to provide appropriate services,
a lead agency, pursuant to its general supervisory authority under Part
C of the Act, must address:
(1) How to remediate the denial of those services, including, as
appropriate, the awarding of monetary reimbursement or other corrective
action appropriate to the needs of the child and the child's family;
and
(2) Appropriate future provision of services for all infants and
toddlers with disabilities and their families.
(Authority: 20 U.S.C. 1435(a)(10))
Sec. 303.511 An organization or individual may file a complaint.
(a) General. An individual or organization may file a written
signed complaint under Sec. 303.510. The complaint must include--
(1) A statement that the State has violated a requirement of Part C
of the Act or the regulations in this part; and
(2) The facts on which the complaint is based.
(b) Limitations. The alleged violation must have occurred not more
than one year before the date that the complaint is received by the
public agency, unless a longer period is reasonable because--
(1) The alleged violation continues for that child or other
children; or
(2) The complainant is requesting reimbursement or corrective
action for a violation that occurred not more than three years before
the date on which the complaint is received by the public agency.
(Authority: 20 U.S.C. 1435(a)(10))
Sec. 303.512 Minimum State complaint procedures.
(a) Time limit--minimum procedures. Each lead agency must include
in its complaint procedures a time limit of 60 calendar days after a
complaint is filed under Sec. 303.510(a) to--
(1) Carry out an independent on-site investigation, if the lead
agency determines that such an investigation is necessary;
(2) Give the complainant the opportunity to submit additional
information, either orally or in writing, about the allegations in the
complaint;
(3) Review all relevant information and make an independent
determination as to whether the public agency is violating a
requirement of Part C of the Act or of this Part; and
(4) Issue a written decision to the complainant that addresses each
allegation in the complaint and contains--
(i) Findings of fact and conclusions; and
(ii) The reasons for the lead agency's final decision.
(b) Time extension; final decisions; implementation. The lead
agency's procedures described in paragraph (a) of this section also
must--
(1) Permit an extension of the time limit under paragraph (a) of
this section only if exceptional circumstances exist with respect to a
particular complaint; and
(2) Include procedures for effective implementation of the lead
agency's final decision, if needed, including--
(i) Technical assistance activities;
(ii) Negotiations; and
(iii) Corrective actions to achieve compliance.
(c) Complaints filed under this section, and due process hearings
under Sec. 303.420. (1) If a written complaint is received that is also
the subject of a due process hearing under Sec. 303.420, or contains
multiple issues, of which one or more are part of that hearing, the
State must set aside any part of the complaint that is being addressed
in the due process hearing until the conclusion of the hearing.
However, any issue in the complaint that is not a part of the due
process action must be resolved within the 60-calendar-day timeline
using the complaint procedures described in paragraphs (a) and (b) of
this section.
(2) If an issue is raised in a complaint filed under this section
that has previously been decided in a due process hearing involving the
same parties--
(i) The hearing decision is binding; and
(ii) The lead agency must inform the complainant to that effect.
(3) A complaint alleging a public agency's or private service
provider's failure to implement a due process decision must be resolved
by the lead agency.
(Authority: 20 U.S.C. 1435(a)(10))
[[Page 53851]]
Policies and Procedures Related to Financial Matters
Sec. 303.519 Policies related to payment for services.
(a) General. (1) Each lead agency is responsible for establishing
State policies related to how services to children eligible under this
part and their families will be paid for under the State's early
intervention program.
(i) For a State that has adopted a system of payments, the policies
must meet the requirements in Secs. 303.519 through 303.522.
(ii) For a State that has not adopted a system of payments, the
policies must--
(A) Include a statement that all early intervention services will
be at no cost to parents; and
(B) Meet the requirements of this section and Sec. 303.522.
(2) The policies required in paragraph (a)(1) of this section must
be reflected in the appropriate interagency agreements required in
Sec. 303.523.
(b) Procedures to ensure the timely provision of services. The
State must implement a mechanism to ensure that no services that a
child is entitled to receive are delayed or denied because of disputes
between agencies regarding financial or other responsibilities.
(c) Proceeds from public or private insurance. (1) Proceeds from
public or private insurance are not treated as program income for
purposes of 34 CFR 80.25.
(2) A State may add fees collected under a system of payments,
which are program income under 34 CFR 80.25, to its Part C grant funds.
The fee income must be used for the purposes and under the conditions
of the grant agreement.
(3) If a public agency spends reimbursements from Federal funds
(e.g., Medicaid), or uses private insurance payments for services under
this part, those funds are not considered State or local funds for
purposes of the provisions contained in Sec. 303.124 (Prohibition
against supplanting).
(d) State policy relating to the use of Part B funds. A State lead
agency that proposes to use funds under Part B of the Act to provide
services to any children eligible under this part must do so in
accordance with a State policy that is in effect and meets the
following requirements:
(1) Assures that--
(i) Any eligible child under this part who receives services using
Part B funds will be provided a free appropriate public education in
accordance with the requirements of Part B of the Act and its
implementing regulations (34 CFR Part 300);
(ii) If the State uses funds received under section 611 of IDEA to
provide services to eligible infants and toddlers, the State will meet
the requirements of both Parts B and C of the Act and their
implementing regulations for those children; and
(iii) If the State uses funds received under section 619 of IDEA to
provide services to two-year-olds who will turn three during the school
year, the State will meet the requirements of Part B for those
children, and is not required to comply with Part C.
(2) Specifies what category, age group, or other segment of the
eligible infant and toddler population will receive services with funds
under Part B of the Act, and, therefore, are entitled to a free
appropriate public education.
(e) Construction. Nothing in this part should be construed to alter
the requirements imposed on a State Medicaid agency, or any other
agency administering a public insurance program by Federal statute,
regulations, or policy under title XIX, or title XXI of the Social
Security Act, or any other Federal insurance program.
(Authority: 20 U.S.C. 1411, 1419(a), (h), 1432(4)(B), 1435(a)(10))
Sec. 303.520 System of payments.
(a) General. (1) A system of payments is a written State policy
that--
(i) Meets the requirements of this section; and
(ii) Describes the fees or costs that will be borne by families who
receive services under the early intervention system.
(2) The lead agency is responsible for ensuring compliance with the
system of payments.
(b) Types of fees. A system of payments may include either or both
of the following:
(1) A fee system of payments by families established under State
law specifically for early intervention services, such as a schedule of
sliding fees based on family income.
(2) Cost participation fees (e.g., co-pay or deductible amounts)
required under existing State or Federal law to access State or Federal
insurance programs in which the child or family is enrolled.
(c) System of payments--assurance. A State with a system of
payments must assure that no fees will be charged to parents in the
following circumstances:
(1) Functions and services at no cost. The State must carry out the
following functions and services at public expense:
(i) Implementing the child find requirements in Sec. 303.321.
(ii) Evaluation and assessment, as required in Sec. 303.322, and
including the functions related to evaluation and assessment in
Sec. 303.12.
(iii) Service coordination, as included in Secs. 303.302 and
303.344(h).
(iv) Administrative and coordinative activities related to--
(A) The development, review, and evaluation of IFSPs in
Secs. 303.340 through 303.346;
(B) Implementation of the procedural safeguards in subpart E of
this part; and
(C) The other components of the statewide system of early
intervention services in subparts D and F of this part.
(2) Inability to pay. The inability of the parents of an eligible
child to pay for services will not result in the denial of services to
the child or the child's family.
(3) Free appropriate public education and the use of Part B funds.
If a State has in effect a State policy that requires the provision of
a free appropriate public education to children below age three, or
uses Part B section 611 funds to provide early intervention services to
eligible children below age three in accordance with Sec. 303.519(d),
the State--
(i) May not charge parents for any services that are part of free
appropriate public education, as defined in 34 CFR 300.13, for the
child; and
(ii) May, under a system of payments, charge parents for other
services that are not covered under paragraph (c)(3)(i) of this
section.
(d) System of payments: State policies. The policies of a State
with a system of payments must--
(1) Include the assurance described in paragraph (c) of this
section regarding the circumstances under which no fees may be charged;
(2) Specify which early intervention services are subject to the
system of payments;
(3) Specify which types of fees or payments described in paragraph
(b) of this section are included;
(4) Include the State's criteria for judging inability to pay,
provided that, in considering a family's ability to pay, the State uses
criteria that take into consideration applicable family expenses, using
the best available data; and
(5) For States whose system includes fees for early intervention
services as described in paragraph (b)(1) of this section, include--
(i) The schedule of fees that will be used, including the basis for
and amount of fees; and
(ii) The basis for determining a family's position on the fee
scale, if applicable, provided that the State--
(A) Does not take into account the existence of a family's public
or private insurance; and
[[Page 53852]]
(B) Uses criteria that take into consideration applicable family
expenses, using the best available data.
(e) Procedural safeguards--(1) Notice. In States with a system of
payments, the State must give written notice to parents of the
information required in this section.
(2) How to give notice. In order to give the notice required in
paragraph (e)(1) of this section, a State may--
(i) Include the information in the notice the State gives the
family under Sec. 303.403; or
(ii) Create a separate notice for this information, and provide the
notice to families prior to commencement of early intervention services
for their child.
(3) Redress by parents. If a parent wishes to contest the
imposition of a fee, or the State's determination of the family's
ability to pay, the parent may do the following:
(i) Participate in mediation in accordance with Sec. 303.419.
(ii) Request a due process hearing under Sec. 303.420.
(iii) File a State complaint under Sec. 303.510.
(iv) Use any other procedure established by the State for speedy
resolution of financial claims, provided that such use does not delay
or deny the parent's procedural rights under this part, including the
right to pursue, in a timely manner, the redress options described in
paragraphs (e)(3)(i) through (iii) of this section.
(Authority: 20 U.S.C. 1432(4)(B), 1439((a)(1), (a)(8))
Sec. 303.521 Use of insurance.
(a) Public insurance--No mandatory enrollment. A State may not
require parents to sign up for or enroll in a public insurance program
in order for their child to receive early intervention services.
(b) Use of public insurance. (1)(i) A State may use the Medicaid or
other public insurance benefits in which a child participates to
provide or pay for services required under this part, as permitted
under the public insurance program, except as provided in paragraphs
(b)(1)(ii) and (b)(1)(iii) of this section.
(ii) The State may not require parents to incur an out-of-pocket
expense such as the payment of a deductible or co-pay amount incurred
in filing a public insurance claim for services provided pursuant to
this part, unless those expenses are included in a system of payments
as described in Sec. 303.520(b)(2); but pursuant to paragraph (e) of
this section, the State may pay the cost that the parent otherwise
would be required to pay.
(iii) The State may not use a child's benefits under a public
insurance program without obtaining parental consent, if that use
would--
(A) Decrease available lifetime coverage or any other insured
benefit;
(B) Result in the family paying for services that would otherwise
be covered by the public insurance program if not for the provision of
services under this part;
(C) Increase premiums or lead to the discontinuation of insurance;
or
(D) Risk loss of eligibility for, or decrease in benefits under,
home and community-based waivers, based on aggregate health-related
expenditures.
(2) If any of the circumstances listed in paragraph (b)(1)(iii) of
this section apply, the State may use the child's benefits, if it
obtains the parent's written consent in accordance with
Sec. 303.401(a).
(3) If a family's public insurance program requires access to the
family's private insurance as a precondition--
(i) The State may not require families to access their private
insurance; and
(ii) The State may access the private insurance if parents give
consent in accordance with paragraph (d) of this section, or choose to
use private insurance under the provisions of paragraph (c) of this
section.
(4) In a State with a system of payments that includes fees as
described in Sec. 303.520(b)(1), the State may not bill the family's
public insurance for an amount greater than the cost of the service,
after subtracting any applicable fee amount owed or paid by the family.
(c) Use of private insurance--States with a fee scale for early
intervention services. In a State with a system of payments, if the
system of payments includes fees as described in Sec. 303.520(b)(1),
the State must--
(1) First determine the applicable family fee for each service, in
accordance with Sec. 303.520(d)(5)(ii); and
(2) Give parents the option of using their private insurance, if
any, or paying the applicable fee, for each service.
(d) Use of private insurance--States with no system of payments.
(1)(i) Subject to paragraph (d)(1)(ii) of this section, the provisions
in this paragraph apply in all States except a State with a system of
payments that includes fees as described in Sec. 303.520(b)(1), such as
a sliding fee scale.
(ii) The provisions of this paragraph also apply to a State with a
system of payments that includes fees as described in
Sec. 303.520(b)(1), such as a sliding fee scale, if any of the
circumstances in Sec. 303.520(c) are present (when no fees can be
charged).
(2) The State may access a parent's private insurance only if the
parent provides informed consent in accordance with Sec. 303.401(a),
following the procedures in paragraph (d)(3) of this section.
(3) For each service in the initial IFSP and each subsequent change
to a service (including a change in the frequency and intensity of
delivering the service), in order to access a family's private
insurance to fund that service, the State must--
(i) Obtain parental consent, in accordance with Sec. 303.401(a);
and
(ii) Inform the parents that their refusal to permit the State to
access their private insurance does not relieve the State of its
responsibility to ensure that all required services are provided at no
cost to the parents.
(e) Use of Part C funds. (1) If a State is unable to obtain
parental consent to use the parent's private insurance to pay for a
service under this part, or public insurance if the parent would incur
a cost for the service under paragraph (c)(4) of this section, the
State may use its Part C funds to pay for the service.
(2) To avoid financial cost to parents, a State may use its Part C
funds to pay the cost the parents otherwise would have to pay to use
their public or private insurance (e.g., the deductible or co-pay
amounts).
(Authority: 20 U.S.C. 1432(4)(B), 1440)
Sec. 303.522 Identification and coordination of resources.
(a) Each lead agency is responsible for--
(1) The identification and coordination of all available resources
for early intervention services within the State, including those from
Federal, State, local, and private sources; and
(2) Updating the information on the funding sources in paragraph
(a)(1) of this section, if a legislative or policy change is made under
any of those sources.
(b) The Federal funding sources in paragraph (a)(1) of this section
include--
(1) Title V of the Social Security Act (relating to Maternal and
Child Health);
(2) Title XIX of the Social Security Act (relating to the general
Medicaid Program, and EPSDT);
(3) The Head Start Act;
(4) Parts B and C of the Act;
(5) The Developmental Disabilities Assistance and Bill of Rights
Act (Pub. L. 94-103); and
(6) Other Federal programs.
(Authority: 20 U.S.C. 1435(a)(10)(B))
[[Page 53853]]
Sec. 303.523 Interagency agreements.
(a) General. Each lead agency is responsible for entering into
formal interagency agreements with other State-level agencies involved,
whether by providing services or funding, in the State's early
intervention program. Each agreement must meet the requirements in
paragraphs (b) through (d) of this section.
(b) Financial responsibility. Each agreement must define the
financial responsibility, in accordance with Secs. 303.143 and 303.173,
of the agency for paying for or providing early intervention services
(in accordance with State law and the requirements of this part).
(c) Procedures for resolving disputes. (1) Each agreement must
include procedures for achieving a timely resolution of intra-agency
and interagency disputes about payments for a given service, or
disputes about other matters related to the State's early intervention
program. Those procedures must include a mechanism for making a final
determination that is binding upon the agencies involved.
(2) A State may meet the requirement in paragraph (c)(1) of this
section in any way permitted under State law, including--
(i) Providing for a third party (e.g.,) an administrative law
judge) to review a dispute and render a decision;
(ii) Assignment of the responsibility by the Governor to the lead
agency or Council; or
(iii) Having the final decision made directly by the Governor.
(3) The agreement with each agency must--
(i) Permit the agency to resolve its own internal disputes (based
on the agency's procedures that are included in the agreement), so long
as the agency acts in a timely manner; and
(ii) Include the process that the lead agency will follow in
achieving resolution of intra-agency disputes, if a given agency is
unable to resolve its own internal disputes in a timely manner.
(d) Additional components. Each agreement must include any
additional components necessary to ensure effective cooperation and
coordination among all agencies involved in the State's early
intervention program, including provisions on--
(1) Transition from Part C services, in accordance with
Sec. 303.148(c);
(2) Applicable policies regarding payments by families, and the use
of funds from other State agencies, in accordance with Secs. 303.173,
303.519(a), and 303.522; and
(3) At the State's discretion, child find, consistent with
Sec. 303.321(c).
(Authority: 20 U.S.C. 1435(a)(10)(C) and (a)(10)(F))
Sec. 303.524 Resolution of disputes.
(a) Each lead agency is responsible for resolving individual
disputes, in accordance with the procedures in Sec. 303.523(c)(2)(ii).
(b)(1) During a dispute, the individual or entity responsible for
assigning financial responsibility among appropriate agencies under
Sec. 303.143 (i.e., the financial designee) must assign financial
responsibility to--
(i) An agency, subject to the provisions in paragraph (b)(2) of
this section; or
(ii) The lead agency, in accordance with the payor of last resort
provisions in Sec. 303.527.
(2) If, during the lead agency's resolution of the dispute, the
financial designee determines that the assignment of financial
responsibility under paragraph (b)(1)(i) of this section was
inappropriately made--
(i) The financial designee must reassign the responsibility to the
appropriate agency; and
(ii) The lead agency must make arrangements for reimbursement of
any expenditures incurred by the agency originally assigned
responsibility.
(c) To the extent necessary to ensure compliance with its action in
paragraph (b)(2) of this section, the lead agency must--
(1) Refer the dispute to the Council or the Governor; and
(2) Implement the procedures to ensure the delivery of services in
a timely manner in accordance with Sec. 303.525.
(Authority: 20 U.S.C. 1435(a)(10)(C) and (a)(10)(E))
Sec. 303.525 Delivery of services in a timely manner.
Each lead agency is responsible for the development of procedures
to ensure that services are provided to eligible children and their
families in a timely manner, pending the resolution of disputes among
public agencies or service providers.
(Authority: 20 U.S.C. 1435(a)(10)(D))
Sec. 303.526 Policy for contracting or otherwise arranging for
services.
Each system must include a policy pertaining to contracting or
making other arrangements with public or private service providers to
provide early intervention services. The policy must include--
(a) A requirement that all early intervention services must meet
State standards and be consistent with the provisions of this part;
(b) The mechanisms that the lead agency will use in arranging for
these services, including the process by which awards or other
arrangements are made; and
(c) The basic requirements that must be met by any individual or
organization seeking to provide these services for the lead agency.
(Authority: 20 U.S.C. 1435(a)(11))
Note to Sec. 303.526: In implementing the statewide system,
States may elect to continue using agencies and individuals in both
the public and private sectors that have previously been involved in
providing early intervention services, so long as those agencies and
individuals meet the requirements of this part.
Sec. 303.527 Payor of last resort.
(a) Nonsubstitution of funds. Except as provided in paragraph
(b)(1) of this section, funds under this part may not be used to
satisfy a financial commitment for services that would otherwise have
been paid for from another public or private source, including any
medical program administered by the Secretary of Defense, but for the
enactment of part C of the Act. Therefore, funds under this part may be
used only for early intervention services that an eligible child needs
but is not currently entitled to under any other Federal, State, local,
or private source.
(b) Interim payments--reimbursement. (1) If necessary to prevent a
delay in the timely provision of services to an eligible child or the
child's family, funds under this part may be used to pay the provider
of services, pending reimbursement from the agency or entity that has
ultimate responsibility for the payment.
(2) Payments under paragraph (b)(1) of this section may be made
for--
(i) Early intervention services, as described in Sec. 303.12;
(ii) Eligible health services (see Sec. 303.13); and
(iii) Other functions and services authorized under this part,
including child find and evaluation and assessment.
(3) The provisions of paragraph (b)(1) of this section do not apply
to medical services or ``well-baby'' health care (see
Sec. 303.13(c)(1)).
(c) Non-reduction of benefits. Nothing in this part may be
construed to permit a State to reduce medical or other assistance
available or to alter eligibility under title V of the Social Security
Act (SSA) (relating to maternal and child health) or title XIX of the
SSA (relating
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to Medicaid for children eligible under this part) within the State.
(Authority: 20 U.S.C. 1440)
Note to Sec. 303.527: The Congress intended that the enactment
of part C not be construed as a license to any agency (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 the program under this part. Thus,
the Congress intended that other funding sources would continue, and
that there would be greater coordination among agencies regarding
the payment of costs.
The Congress further clarified its intent concerning payments
under Medicaid by including in section 411(k)(13) of the Medicare
Catastrophic Coverage Act of 1988 (Pub. L. 100-360) an amendment to
title XIX of the Social Security Act. That amendment states, in
effect, that nothing in this title must be construed as prohibiting
or restricting, or authorizing the Secretary of Health and Human
Services to prohibit or restrict, payment under subsection (a) of
section 1903 of the Social Security Act for medical assistance for
covered services furnished to an infant or toddler with a disability
because those services are included in the child's IFSP adopted
pursuant to part C of the Act.
Sec. 303.528 Reimbursement procedure.
Each system must include a procedure for securing the timely
reimbursement of funds used under this part, in accordance with
Sec. 303.527(b).
(Authority: 20 U.S.C. 1435(a)(12))
Reporting Requirements
Sec. 303.540 Data collection.
(a) Each system must include the procedures that the State uses to
compile data on the statewide system. The procedures must--
(1) Include a process for--
(i) Collecting data from various agencies and service providers in
the State;
(ii) Making use of appropriate sampling methods, if sampling is
permitted; and
(iii) Describing the sampling methods used, if reporting to the
Secretary; and
(2) Provide for reporting data required under section 618 of the
Act that relates to this part.
(b) The information required in paragraph (a)(2) of this section
must be provided at the time and in the manner specified by the
Secretary.
(Authority: 20 U.S.C. 1435(a)(14))
Use of Funds for State Administration
Sec. 303.560 Use of funds for administration.
A lead agency may use funds under this part that are reasonable and
necessary for administering the State's early intervention program for
infants and toddlers with disabilities.
(Authority: 20 U.S.C. 1433, 1435(a)(10))
Subpart G--State Interagency Coordinating Council
General
Sec. 303.600 Establishment of Council.
(a) A State that desires to receive financial assistance under this
part must establish a State Interagency Coordinating Council.
(b) The Council must be appointed by the Governor. The Governor
must ensure that the membership of the Council reasonably represents
the population of the State.
(c)(1) Subject to paragraph (c)(2) of this section, the Governor
must designate a member of the Council to serve as the chairperson of
the Council or require the Council to do so.
(2) Any member of the Council who is a representative of the lead
agency designated under Sec. 303.500 may not serve as the chairperson
of the Council.
(Authority: 20 U.S.C. 1441(a))
Note to Sec. 303.600: To avoid a potential conflict of interest,
it is recommended that parent representatives who are selected to
serve on the Council not be employees of any agency involved in
providing early intervention services.
It is suggested that consideration be given to maintaining an
appropriate balance between the urban and rural communities of the
State.
Sec. 303.601 Composition.
(a) The Council must be composed as follows:
(1)(i) At least 20 percent of the members must be parents,
including minority parents, of infants or toddlers with disabilities or
children with disabilities aged 12 or younger, with knowledge of, or
experience with, programs for infants and toddlers with disabilities.
(ii) At least one member must be a parent of an infant or toddler
with a disability or a child with a disability aged six or younger.
(2) At least 20 percent of the members must be public or private
providers of early intervention services.
(3) At least one member must be from the State legislature.
(4) At least one member must be involved in personnel preparation.
(5) At least one member must--
(i) Be from each of the State agencies involved in the provisions
of, or payment for, early intervention services to infants and toddlers
with disabilities and their families; and
(ii) Have sufficient authority to engage in policy planning and
implementation on behalf of these agencies.
(6) At least one member must--
(i) Be from the State educational agency responsible for preschool
services to children with disabilities; and
(ii) Have sufficient authority to engage in policy planning and
implementation on behalf of that agency.
(7) At least one member must be from the agency responsible for the
State governance of health insurance.
(8) At least one member must be from a Head Start agency or program
in the State.
(9) At least one member must be from a State agency responsible for
child care.
(b) The Council may include other members selected by the Governor,
including a representative from the BIA or, if there is no school
operated or funded by the BIA, from the Indian Health Service or the
tribe or tribal council.
(Authority: 20 U.S.C. 1441(b))
Sec. 303.602 Use of funds by the Council.
(a) General. Subject to the approval of the Governor, the Council
may use funds under this part--
(1) To conduct hearings and forums;
(2) To reimburse members of the Council for reasonable and
necessary expenses for attending Council meetings and performing
Council duties (including child care for parent representatives);
(3) To pay compensation to a member of the Council if the member is
not employed or must forfeit wages from other employment when
performing official Council business;
(4) To hire staff; and
(5) To obtain the services of professional, technical, and clerical
personnel, as may be necessary to carry out the performance of its
functions under this part.
(b) Compensation and expenses of Council members. Except as
provided in paragraph (a) of this section, Council members must serve
without compensation from funds available under this part.
(Authority: 20 U.S.C. 1438, 1441 (c) and (d))
Sec. 303.603 Meetings.
(a) The Council must meet at least quarterly and in such places as
it deems necessary.
(b) The meetings must--
(1) Be publicly announced sufficiently in advance of the dates they
are to be held to ensure that all interested parties have an
opportunity to attend; and
(2) To the extent appropriate, be open and accessible to the
general public.
(c) Interpreters for persons who are deaf and other necessary
services must
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be provided at Council meetings, both for Council members and
participants. The Council may use funds under this part to pay for
those services.
(Authority: 20 U.S.C. 1441 (c) and (d))
Sec. 303.604 Conflict of interest.
No member of the Council may cast a vote on any matter that would
provide direct financial benefit to that member or otherwise give the
appearance of a conflict of interest.
(Authority: 20 U.S.C. 1441(f))
Functions of the Council
Sec. 303.650 General.
(a) Each Council must--
(1) Advise and assist the lead agency in the development and
implementation of the policies that constitute the statewide system;
(2) Assist the lead agency in achieving the full participation,
coordination, and cooperation of all appropriate public agencies in the
State;
(3) Assist the lead agency in the effective implementation of the
statewide system, by establishing a process that includes--
(i) Seeking information from service providers, service
coordinators, parents, and others about any Federal, State, or local
policies that impede timely service delivery; and
(ii) Taking steps to ensure that any policy problems identified
under paragraph (a)(3)(i) of this section are resolved; and
(4) To the extent appropriate, assist the lead agency in the
resolution of disputes.
(b) Each Council may advise and assist the lead agency and the
State educational agency regarding the provision of appropriate
services for children aged birth to five, inclusive.
(c) Each Council may advise appropriate agencies in the State with
respect to the integration of services for infants and toddlers with
disabilities and at-risk infants and toddlers and their families,
regardless of whether at-risk infants and toddlers are eligible for
early intervention services in the State.
(Authority: 20 U.S.C. 1441(e)(1)(A) and (e)(2))
Sec. 303.651 Advising and assisting the lead agency in its
administrative duties.
Each Council must advise and assist the lead agency in the--
(a) Identification of sources of fiscal and other support for
services for early intervention programs under this part;
(b) Assignment of financial responsibility to the appropriate
agency; and
(c) Promotion of the interagency agreements under Sec. 303.523.
(Authority: 20 U.S.C. 1441(e)(1)(A))
Sec. 303.652 Applications.
Each Council must advise and assist the lead agency in the
preparation of applications under this part and amendments to those
applications.
(Authority: 20 U.S.C. 1441(e)(1)(B))
Sec. 303.653 Transition services.
Each Council must advise and assist the State educational agency
regarding the transition of eligible children under this part to
preschool services under part B of the Act or other appropriate
services.
(Authority: 20 U.S.C. 1441(e)(1)(C))
Sec. 303.654 Annual report to the Secretary.
(a) Each Council must--
(1) Prepare an annual report to the Governor and to the Secretary
on the status of early intervention programs operated within the State
for children eligible under this part and their families; and
(2) Submit the report to the Secretary by a date that the Secretary
establishes.
(b) Each annual report must contain the information required by the
Secretary for the year for which the report is made.
(Authority: 20 U.S.C. 1441(e)(1)(D))
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[FR Doc. 00-21969 Filed 9-1-00; 8:45 am]
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