Need for Clarifying the Provision on "Developmental Delay."
The IDEA Amendments of 1997 made two changes related to the provision on "developmental delay" under prior law, as follows:

1. the age range for children covered by the term was expanded from "ages 3 through 5" to "ages 3 through 9"; and
   
2. the decision on whether to use "developmental delay" was changed from being at the sole discretion of the state to being at the discretion of both the state and the LEA.

These changes were addressed in proposed §300.7(a)(2) and in Note 2 following that section in the NPRM.

Public comments indicated the need for further clarification.
Public comments received on the NPRM raised numerous questions and concerns about

1. the application of the term "developmental delay" and the respective roles of the state and LEAs in implementing the provision;
   
2. the need for defining the term consistently under both Part B and the early intervention program under Part C of the Act; and
   
3. the impact that the term would have for children with sensory disabilities or significant cognitive disabilities.

Revising Conditions to Address Public Comments.
The proposed definition of "developmental delay" under §300.7(a)(2)) has been redesignated as §300.7(b) (children aged 3 through 9 experiencing developmental delays), and revised to include a reference to a new §300.313 that sets out the provisions related to using the term, as follows:

1. CONDITIONS FOR USING "DEVELOPMENTAL DELAYS."
   New §300.313(a) specifies that --
   
   1. A state that adopts the term "developmental delays" may not require an LEA to use it;
      
   2. If an LEA elects to use the term, the LEA must conform to the state's definition and age range (ages 3 through 9, or a subset of that range); and
      
   3. If a state does not adopt the term, an LEA may not independently use it as the basis for establishing a child's eligibility.
2. USING SPECIFIED DISABILITY CATEGORIES, as appropriate.
   New §300.313(b) clarifies that a state or LEA that elects to use "developmental delay" also may use one or more of the disability categories described in §300.7 for any child aged 3 through 9 who has been determined (through the evaluation procedures in §§300.531-300.536) to have a disability and who, by reason thereof, needs special education. Thus, if a child has an identified disability (e.g., deafness), it would be appropriate to use the term with that child, even if the state or LEA is using "developmental delay" for other children aged 3 through 9, or a subset of that age range (e.g., ages 3 through 5).

3. COMMON DEFINITION OF "DEVELOPMENTAL DELAY."
   New §300.313(c) makes clear that a state may adopt a common definition of "developmental delay" under Parts B and C of the Act.

* On October 22, 1997, a Notice of Proposed Rulemaking (NPRM) was published in the Federal Register to amend the regulations under Part B of the Individuals with Disabilities Education Act (IDEA). The purposes of the NPRM were to implement changes made by the IDEA Amendments of 1997, and make other changes that facilitate the implementation of Part B. The changes made since the NPRM are based mainly on public comments received.