FR Doc 03-28174
[Federal Register: November 10, 2003 (Volume 68, Number 217)]
[Notices]
[Page 63931-63971]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10no03-103]
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Part IV
Department of Education
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South Carolina Department of Health and Environmental Control; Written
Findings and Compliance Agreement Under the Infants and Toddlers With
Disabilities Program--Part C of the Individuals With Disabilities
Education Act; Notice
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DEPARTMENT OF EDUCATION
South Carolina Department of Health and Environmental Control;
Written Findings and Compliance Agreement Under the Infants and
Toddlers With Disabilities Program--Part C of the Individuals With
Disabilities Education Act
AGENCY: Office of Special Education Programs, Office of Special
Education and Rehabilitative Services, Department of Education.
ACTION: Notice of written findings and compliance agreement.
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SUMMARY: Section 457 of the General Education Provisions Act (GEPA)
authorizes the U.S. Department of Education (Department) to enter into
a compliance agreement with a recipient that is failing to comply
substantially with Federal program requirements. In order to enter into
a compliance agreement, the Department must determine, in written
findings, that the recipient cannot comply until a future date with the
applicable program requirements and that a compliance agreement is a
viable means of bringing about such compliance. On September 9, 2003,
the Department entered into a compliance agreement with the South
Carolina Department of Health and Environmental Control (DHEC). Under
section 457(b)(2) of GEPA, the written findings and compliance
agreement must be published in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Jacquelyn Twining-Martin, U.S.
Department of Education, Office of Special Education Programs, 330 C
Street, NW., room 3316, Washington, DC 20202. Telephone (202) 205-8258.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: Under Part C of the Individuals with
Disabilities Education Act (Part C), the Department provides funds to
States to, and the State must then, ``maintain and implement a
statewide, comprehensive, coordinated, multidisciplinary, interagency
system to provide early intervention services for infants and toddlers
with disabilities and their families.'' 20 U.S.C. 1433, 1435(a)(2),
1437(a)(3)(A); 34 CFR 303.1 and 303.160. Early intervention services
are services that are, among other things, ``designed to meet the
developmental needs of an infant or toddler with a disability in any
one or more of the following areas--(i) physical development; (ii)
cognitive development; (iii) communication development; (iv) social or
emotional development; or (v) adaptive development''; ``are provided by
qualified personnel''; ``to the maximum extent appropriate, are
provided in natural environments, including the home, and community
settings in which children without disabilities participate''; and
``are provided in conformity with an individualized family service plan
adopted in accordance with section 1436 of this title.'' 20 U.S.C.
1432(4)(C), (F), (G) and (H).
On January 6, 2003, following an on-site monitoring visit to South
Carolina (SC) in February 2002 by the Department's Office of Special
Education Programs (OSEP), OSEP issued a final monitoring report that
documented non-compliance by the SC DHEC with Part C. The monitoring
report identified DHEC's failure to meet its responsibilities under
Part C. Specifically, the monitoring report identified DHEC's failure
to:
(1) Meet its general supervision responsibilities and monitor for
compliance with regard to all requirements of Part C;
(2) Ensure that a coordinated child find and public awareness
system results in the identification of all eligible infants and
toddlers with disabilities;
(3) Ensure that all infants and toddlers referred to Part C receive
timely and comprehensive evaluations in all five developmental areas
such that evaluations and assessments are completed within 45 days of
referral to enable the initial Individualized Family Service Plan
(IFSP) team meeting to be convened in that time period;
(4) Ensure that all early intervention services needed by an
eligible infant or toddler with a disability and the child's family are
identified on the IFSP and provided in a timely manner; and
(5) Conduct timely and content-appropriate transition planning
including transition meetings for children who are transitioning from
Part C.
On April 19, 2002, DHEC requested to enter into a compliance
agreement with the Department. The purpose of a compliance agreement is
``to bring the recipient into full compliance with the applicable
requirements of law as soon as feasible and not to excuse or remedy
past violations of such requirements.'' 20 U.S.C. 1234f(a). Before
entering into a compliance agreement, the Department must hold a
hearing at which the recipient, individuals affected by any potential
compliance agreement, including infants and toddlers with disabilities
and their families or other representatives, and other interested
parties are invited to participate. In that hearing, the recipient has
the burden of persuading the Department that full compliance with the
applicable requirements of law is not feasible until a future date and
that a compliance agreement is a viable means for bringing about such
compliance in no more than three years. 20 U.S.C. 1234f(b)(1), (c). If,
on the basis of all the evidence available to it, the Secretary
determines that the recipient has met that burden, the Secretary is to
make written findings to that effect and publish those findings,
together with the substance of the compliance agreement, in the Federal
Register. 20 U.S.C. 1234f(b)(2).
At a May 1, 2003 hearing conducted by Department officials,
witnesses representing DHEC, families of infants and toddlers with
disabilities, and other concerned organizations (including State
agencies and other stakeholders) testified on the question of whether
the Department should grant DHEC's request to enter into a compliance
agreement. Additional written testimony was submitted to the Department
by families of infants and toddlers with disabilities and children with
disabilities and concerned organizations both prior to and after the
public hearing. On September 9, 2003, the Department, after reviewing
all oral and written testimony submitted and other relevant materials,
issued the attached Written Findings and Decision (Decision) of the
Secretary as required under 20 U.S.C. 1234f(b)(2). As noted in the
Decision, the Department has determined that DHEC has met its burden of
establishing the following: (1) That compliance by DHEC with Part C is
not feasible until a future date, and (2) that DHEC will be able to
carry out the terms and conditions of the compliance agreement it has
signed (Compliance Agreement) and will come into full compliance with
Part C within three years of the date of the Decision. During the
effective period of the Compliance Agreement, which expires three years
from the date of the Decision, DHEC will be eligible to receive Part C
funds as long as it complies with all the terms and conditions of the
Compliance Agreement.
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As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2),
the text of the Secretary's Decision is set forth as Appendix A and the
Compliance Agreement is set forth as Appendix B of this notice.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in Text or Adobe
Portable Document Format (PDF), on the Internet at the following site:
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To use PDF, you must have Adobe Acrobat Reader, which is available
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Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register is available on GPO access
at: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.gpoaccess.gov/nara/index.html.
(Authority: 20 U.S.C. 1234c, 1234f, 1431 through 1445)
Dated: October 22, 2003.
Troy R. Justesen,
Acting Assistant Secretary for Special Education and, Rehabilitative
Services.
Appendix A--Text of the Written Findings and Decision of the Secretary
of Education
I. Introduction
The United States Department of Education (Department) has
determined, pursuant to 20 U.S.C. 1234c, that the South Carolina
Department of Health and Environmental Control (DHEC) has failed to
comply substantially with the requirements of Part C of the Individuals
with Disabilities Education Act (Part C or IDEA), 20 U.S.C. 1401,
14311-1445.\1\ On January 6, 2003, the Department issued a final
monitoring report for South Carolina (SC) that documented DHEC's
failure to comply with Part C in its provision of early intervention
services to infants and toddler with disabilities and their families.
Specifically, DHEC has failed to:
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\1\ Under the Department of Education Organization Act (DEOA),
Congress transferred the administration of the IDEA from the
Commissioner of Education to the Secretary of Education. 20 U.S.C.
3441(a)(1) and (a)(2)(H). Section 207 of the DEOA, 20 U.S.C. 3417,
in turn delegates responsibility for IDEA to the Assistant Secretary
for Special Education and Rehabilitative Services. The Office of
Special Education Programs (OSEP), which is part of the Office of
Special Education and Rehabilitative Services, is the office within
the Department that is primarily responsible for administering Part
C of the IDEA. 20 U.S.C. 1402(a).
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(1) Meet its general supervision responsibilities and monitor for
compliance with regard to all requirements of Part C, including
appropriately administering the Part C program, monitoring State
agencies, institutions, organizations and private providers that are
part of the Part C system, and enforcing obligations against and
providing training and technical assistance to all such entities and
individuals, when identified as part of a required improvement
strategy;
(2) Ensure that a coordinated child find system results in the
identification of all eligible infants and toddlers with disabilities
and that public awareness materials about the infants and toddlers with
disabilities program are made available to the public, including rural,
minority and underrepresented populations;
(3) Ensure that all infants and toddlers referred to Part C receive
timely and comprehensive evaluations in all five developmental areas
such that evaluations and assessments are completed within 45 days of
referral to enable the initial Individualized Family Service Plan
(IFSP) team meeting to be convened in that time period;
(4) Ensure that all early intervention services needed by an
eligible infant or toddler with a disability and the child's family are
identified on the IFSP and provided in a timely manner; and
(5) Conduct timely and content-appropriate transition planning
including transition meetings for children who are transitioning from
Part C.
As a consequence, the Department concluded, pursuant to the General
Education Provisions Act (GEPA) at 20 U.S.C. 1234c, that DHEC is not
complying with Part C.
On April 19, 2002, DHEC requested the Department enter into a
compliance agreement with DHEC as a means of ensuring a continued flow
of Part C funds to South Carolina while a structured plan to come into
full compliance with Part C is implemented. On May 1, 2003, Department
officials conducted a public hearing in South Carolina in accordance
with the GEPA requirements of 20 U.S.C. 1234f(b), at which oral and
written testimony were received. Witnesses representing DHEC, affected
families of infants and toddlers with disabilities, and other concerned
organizations (including State stakeholders) testified at this hearing
on the question of whether the Department should grant DHEC's request
to enter into a Compliance Agreement. Additional written testimony was
submitted to the Department by affected families, and concerned
organizations both prior to and after the public hearing. The
Department has reviewed all oral and written testimony submitted, the
Compliance Agreement DHEC has signed, and other relevant materials.\2\
On the basis of this evidence, the Department concludes, and issues
these written findings as required by 20 U.S.C. 1234f(b)(2), that DHEC
has met its burden of establishing the following: (1) That compliance
by DHEC with Part C is not feasible until a future date, and (2) that
DHEC will be able to carry out the terms and conditions of the
Compliance Agreement it has signed and will come into full compliance
with Part C within three years of the date of this decision. During the
effective period of the Compliance Agreement, which expires three years
from the date of this decision, DHEC will be eligible to receive Part C
funds as long as it complies with all the terms and conditions of the
Agreement.
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\2\ A copy of the Compliance Agreement is appended to, and
incorporated into, this decision as Attachment A.
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II. Legal Basis for Compliance Agreement: Requirements Under Part C and
Under GEPA
A. Part C of the Individual With Disabilities Education Act
Part C was passed in response to Congress' finding that ``there is
an urgent and substantial need to enhance the development of infants
and toddlers with disabilities and to minimize their potential for
developmental delay.'' 20 U.S.C. 1431(a)(1). Congress established Part
C ``to provide financial assistance to States to develop and implement
a statewide, comprehensive, coordinated, multidisciplinary, interagency
system that provides early intervention services for infants and
toddlers with disabilities and their families.''\3\ 20 U.S.C.
1441(b)(1). Early intervention services are defined as ``developmental
services that'':
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\3\ An ``infant or toddler with a disability'' ``(A) means an
individual under 3 years of age who needs early intervention
services because the individual (i) is experiencing developmental
delays, as measured by appropriate diagnostic instruments and
procedures in one or more of the areas of cognitive development,
physical development, communication development, social or emotional
development, and adaptive development; or (ii) has a diagnosed
physical or mental condition which has a high probability of
resulting in developmental delay; and (B) may also include, at a
State's discretion, at-risk infants and toddlers.'' 20 U.S.C.
1432(5).
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(A) Are provided under public supervision;
(B) Are provided at no cost except where Federal or State law
provides for
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a system of payments by families, including a schedule of sliding fees;
(C) Are designed to meet the developmental needs of an infant or
toddler with a disability in any one or more of the following areas--
(i) physical development; (ii) cognitive development; (iii)
communication development; (iv) social or emotional development; or (v)
adaptive development;
(D) Meet the standards of the State in which they are provided,
including the requirements of this part;
(E) Include [a list of early intervention services];
(F) Are provided by qualified personnel';
(G) To the maximum extent appropriate, are provided in natural
environments, including the home, and community settings in which
children without disabilities participate; and
(H) Are provided in conformity with an individualized family
service plan (IFSP) adopted in accordance with section 636 (20 U.S.C.
1436). 20 U.S.C. 1432(4); 34 CFR 303.12.
In order to ensure that all early intervention services are
provided in compliance with Part C, a State must ensure that the Part C
requirements regarding general supervision (including monitoring),
child find and public awareness, timely evaluations and assessments,
IFSP development, timely provision of early intervention services, and
transition planning are met.
The lead agency's general supervision responsibilities include
monitoring, ensuring correction and enforcement, providing technical
assistance and training and ensuring the provision of procedural
safeguards through the due process and State complaint procedures. 20
U.S.C. 1435(a)(1)(A); 34 CFR 303.500 through 303.512. The lead agency
is required to ensure that all programs and activities used by the
State to carry out Part C, whether or not they receive Part C funds,
are monitored for compliance with Part C requirements and that
interagency agreements are in place to ensure that services are
provided in a timely manner. 20 U.S.C. 1435(a)(1)(A); 34 CFR 303.501
and 303.523 through 303.528. When the lead agency determines that
program providers and other agencies, institutions and organizations
that are part of the Part C system in a State are not in compliance,
Part C requires the lead agency to enforce the requirements of Part C
and correct deficiencies that are identified through monitoring and its
general supervision authority. 20 U.S.C. 1435(a)(1)(A); 34 CFR
303.501(b)(2) and (4). The lead agency is also responsible for
providing technical assistance and training to agencies, institutions
and organizations that administer the Part C program. 20 U.S.C.
1435(a)(1)(A); 34 CFR 303.501(b)(3). Part C requires that there be a
single line of responsibility and clear interagency guidelines to
ensure that one agency, the lead agency, is responsible for
administering Part C in the State. 20 U.S.C. 1435(a)(1)(A); 34 CFR
303.500. General supervision has been a challenge for DHEC due to the
large number of agencies that provide some part of Part C services and
the number of private contractors.
The Part C general supervision requirement must be read in
conjunction with DHEC's responsibility under GEPA at 20 U.S.C.
1232d(b)(3), to adopt and use proper methods of administering the Part
C program, including, among other requirements: (1) Monitoring of
agencies, institutions, and organizations responsible for carrying out
Part C; (2) the enforcement of the obligations imposed on those
agencies, institutions, and organizations under Part C; (3) providing
technical assistance, where necessary, to such agencies, institutions,
and organizations; and (4) the correction of deficiencies in program
operations that are identified through monitoring or evaluation.
Other Part C requirements include ensuring that all infants and
toddlers with disabilities and their families: Are timely referred into
the program, are assigned a single service coordinator, are evaluated
in all five developmental areas, and, if determined eligible, have
IFSPs timely developed that address all content requirements, are
timely provided those early intervention services and receive timely
transition meetings and plans as they exit the program. This system is
intended to be seamless so that an infant and toddler with a disability
and the family receive all appropriate services to support them. DHEC's
failure to ensure the provision of key components of the system have
led to waiting lists for evaluations and assessments and early
intervention services.
B. The Department's Authority To Enter Into a Compliance Agreement
If a State fails to comply substantially with the requirements of
Part C, the IDEA authorizes the Department to withhold funds from that
State or refer the matter to the Department of Justice. 20 U.S.C.
1416(a) and 1442. GEPA provides the Department with additional options
for dealing with a grant recipient that it concludes is ``failing to
comply substantially with any requirements of law applicable to such
funds.'' 20 U.S.C. 1234c. These remedies include issuing a cease and
desist order. 20 U.S.C. 1234c. As an alternative to withholding funds,
issuing a cease and desist order, or referral to the Department of
Justice, the Department may enter into a Compliance Agreement with a
recipient that is failing to comply substantially with specific program
requirements. 20 U.S.C. 1234f. In this instance, and at DHEC's request,
the Department has decided to address DHEC's failure to comply
substantially with the requirements of Part C through a Compliance
Agreement.
The purpose of a Compliance Agreement is ``to bring the recipient
into full compliance with the applicable requirements of the law as
soon as feasible and not to excuse or remedy past violations of such
requirements.'' 20 U.S.C. 1234f(a). Before entering into a Compliance
Agreement, the Department must hold a hearing at which the recipient,
affected infants and toddlers with disabilities and their parents or
their representatives, and other interested parties are invited to
participate. In that hearing, the recipient has the burden of
persuading the Department that full compliance with the applicable
requirements of law is not feasible until a future date and that a
Compliance Agreement is a viable means for bringing about such
compliance in no more than three years. 20 U.S.C. 1234f(b)(1). If, on
the basis of all the evidence available to it, the Secretary determines
that the recipient has met that burden, he is to make written findings
to that effect and publish those findings, together with the substance
of the Compliance Agreement, in the Federal Register. 20 U.S.C.
1234f(b)(2).
A Compliance Agreement must set forth an expiration date not later
than 3 years from the date of the Secretary's written findings under 20
U.S.C. 1234f(b)(2), by which time the recipient must be in full
compliance with all program requirements. In addition, the Compliance
Agreement must contain the terms and conditions with which the
recipient must comply during the period that the Agreement is in
effect. 20 U.S.C. 1234f(c). If the recipient fails to comply with any
of the terms and conditions of the Compliance Agreement, the Department
may consider the Agreement no longer in effect and may take any action
authorized by law, including withholding of funds, issuing of a cease
and desist order, or referring the matter to the Department of Justice.
20 U.S.C. 1234f(d).
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III. Analysis of DHEC'S Ability To Meet the Requirements of the
Compliance Agreement
A. How the Department Determines Whether a Compliance Agreement Is
Appropriate
In determining whether it is appropriate to enter into a Compliance
Agreement with DHEC, the Department must first determine two issues.
First, the Department determines whether compliance by DHEC with Part C
(including the requirements concerning general supervision including
monitoring, child find and public awareness, timely and comprehensive
evaluations, complete IFSP development, timely provision of early
intervention services, and transition from Part C) is not immediately
feasible. 20 U.S.C. 1234f(b). Second, the Department determines whether
DHEC will be able to come into compliance with Part C within a period
of no more than three years. If the Department cannot answer these
questions in the affirmative, then it is inappropriate for the
Department to enter into a Compliance Agreement between the Department
and DHEC under 20 U.S.C. 1234f. In arriving at the terms of the
Compliance Agreement, DHEC must not only come into full compliance by
the end of the effective period of the Compliance Agreement, it must
also make steady and measurable progress toward the Agreement's
objectives while it is in effect.
B. DHEC Cannot Immediately Come Into Compliance With Part C
Requirements
DHEC's failure to comply with the requirements of Part C, as
documented in OSEP's January 6, 2003 monitoring report and acknowledged
by DHEC, is caused by a number of factors including the fact that early
intervention services in South Carolina are provided through complex
interagency and private contractor structures, and, as a result, cannot
be corrected immediately. The witnesses who testified at the public
hearings and the Department's experience in monitoring DHEC's early
intervention program, BabyNet, provide compelling support for this
conclusion.
1. DHEC Cannot Come Into Compliance Immediately With Those Part C
Requirements That Were the Subject of OSEP's Findings
As noted below and confirmed through the testimony of DHEC, parents
and providers, DHEC is not in compliance now, and cannot immediately
come into compliance, with the following specific Part C requirements
that were findings in OSEP's January 6 2003 report:
--Employing proper methods of administering the Part C program,
including monitoring all agencies, institutions, providers, and
organizations used by SC to provide Part C services, enforcing Part C
requirements against these entities and providing training and
technical assistance;
--Ensuring a coordinated child find system and that public awareness
materials are made available to the public;
--Ensuring that all infants and toddlers who are referred to Part C are
evaluated in all five developmental areas within the required time
frame;
--Ensuring that all eligible infants and toddlers with disabilities
have IFSPs that are developed with the required content, the initial
IFSP meeting is convened within 45 days of referral, and early
intervention services listed on the IFSP are provided in a timely
manner; and
--Conducting timely transition planning for all children by preparing a
transition plan, holding a transition meeting and notifying the local
educational agency (LEA) of children approaching the age of transition.
2. DHEC Testified That It Cannot Immediately Come Into Full Compliance
With Part C Requirements Due to Three Major Long-Term Barriers
DHEC acknowledged that it is not complying with Part C and cannot
immediately come into compliance with Part C requirements. In his
power-point presentation and written testimony, DHEC Presentation at
Compliance Agreement Public Hearing, the DHEC BabyNet Director, David
Steele, identified the following three principal barriers to its
ability to come into immediate compliance with Part C: the lack of a
monitoring system and interagency monitoring and cooperation, the lack
of a reliable data system, and the lack of available qualified
personnel. DHEC acknowledged that it does not have a systemic
monitoring system to monitor all agencies, providers and programs that
provide early intervention services in South Carolina and continues to
have infants and toddlers on waiting lists for evaluations and
assessments as well as for early intervention services in more than one
geographic area. The need for interagency cooperation on all aspects of
service delivery under the Part C system is a key challenge.
One major barrier to immediate compliance is DHEC's need to
establish a monitoring system, since South Carolina's statewide system
of early intervention services involves efforts from six different
State agencies as well as numerous private contractors. Six different
agencies (including DHEC) conduct child find, evaluations and
assessments, transition planning and provide service coordination and
early intervention services. During the public hearings, DHEC officials
testified that DHEC does not have a monitoring system to monitor its
interagency partners or its private providers that conduct evaluations
and transition planning and provide service coordination, and early
intervention services. The only efforts DHEC had made to monitor its
BabyNet program failed to identify and require correction of many
important violations of Part C. DHEC also did not have any protocols
for evaluating other agencies nor did it have uniform standards for
training and services that were in compliance with Part C. DHEC is just
now beginning to establish a mechanism for working with each of these
agencies on an ongoing basis to coordinate all Part C activities
including monitoring these agencies' compliance with Part C
requirements and providing joint and collaborative training and
technical assistance.
DHEC cannot immediately address this barrier. The first critical
step will be the development of memoranda of agreements that address
each agency's responsibility in addressing Part C's requirements.
Another critical step will be interagency cooperation to allow DHEC to
monitor how each agency conducts child find, evaluations and
assessments, and transition planning, and provides service coordination
and early intervention services based on Part C standards. Jointly
training agency staff, implementing a monitoring system and identifying
noncompliance issues and developing appropriate corrective action steps
are all necessary to address compliance issues.
A second barrier is the need for DHEC to integrate and verify its
new online web-based data system, which is a critical component of its
monitoring system. DHEC officials testified that ensuring complete and
accurate real-time data reporting that is necessary for program
decision-making and accountability will take time. Securing baseline
data under the new system is critical to DHEC's plan to identifying and
addressing the root causes of the areas of noncompliance identified by
OSEP. At the time of OSEP's monitoring visit, no information was
collected by DHEC regarding private contractors who conducted
evaluations and assessments and who provided early intervention
services. DHEC intends for the new data
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system to capture this information as well as information about the
number of infants and toddlers on waiting lists for evaluations, early
intervention services, and transition planning. Another goal of DHEC
for its data system is to better track (with parent consent when
needed) information about children who transition from Part C to Part B
of the IDEA. Verifying the new data system will take DHEC more than one
year and effectively incorporating the data system into its new
monitoring system to verify both noncompliance areas and corrective
action results will take DHEC longer.
A third major barrier that affects DHEC's ability to comply with
Part C is a lack of enough qualified personnel to conduct evaluations
and assessments and provide early intervention services. DHEC testimony
cited personnel recruitment and development issues as among the top
three challenges for its program. DHEC cannot, acting on its own,
rapidly resolve this personnel shortage. DHEC is unable to find
providers who are willing to travel to some of South Carolina's more
rural areas to provide services in the infant or toddler's home. South
Carolina also is not competitive with its neighboring states in the
remuneration it offers providers. In some professions, South Carolina
is challenged to find qualified personnel and DHEC may need to develop
long-term strategies including working with its higher education
institutions to ensure that personnel are trained. Removing all these
barriers to obtaining needed personnel will require a long-term and
systematic effort on DHEC's part that will involve working with other
organizations in South Carolina to review existing policies and
practices so that effective strategies for training, recruiting and
retaining qualified personnel for early intervention services can be
implemented.
3. Testimony From Other SC Agency Representatives, Providers and
Parents All Confirms DHEC Cannot Immediately Come Into Compliance
Testimony from other individuals also confirmed that DHEC cannot
come into full compliance with Part C immediately. Representatives from
other South Carolina agencies that provide early intervention services,
parents and individual providers of Part C services all testified that
DHEC will need additional time to achieve full compliance.
At least three witnesses at the hearing (from other South Carolina
agencies) confirmed that DHEC needs more time to ensure interagency
coordination among the six agencies that are part of the early
intervention system in South Carolina. Susan Durrant, Director in the
SC Department of Education (Division of Exceptional Children) cited the
need for interagency coordination in the following areas in particular
between the SC Department of Education and DHEC: (1) Making policies
and procedures ``congruent''; (2) joint collaboration on child find;
and (3) developing ``seamless services'' particularly as children
transition from Part C to Part B. A representative of the Department of
Disabilities Special Needs, who is a parent, testified about the need
for her agency's joint collaboration on training with DHEC and the
monitoring standards.
A representative of the School for the Deaf and Blind identified
one challenge unique to South Carolina, namely the ability to find
available private contractors to address the needs of eligible infants
and toddlers with disabilities who live in rural areas, since many
providers are unwilling to travel to rural areas and remuneration for
providers in these areas is not competitive. She stressed that
coordination between BabyNet and the School for the Deaf and Blind must
be on all issues (from general supervision to child find to evaluations
to delivery of services and transition) since the School for the Deaf
and Blind conducts all aspects of Part C (from evaluating infants and
toddlers with disabilities and providing services to transition) and
receives funding and training from DHEC and shares other resources with
it. She noted that a key coordination challenge will be the use of both
agencies' quality assurance staff to ensure that monitoring for
compliance with Federal Part C requirements is conducted appropriately,
using the correct standards, trained staff, with follow-up if
noncompliance is identified.
Other witnesses, including parents and providers, confirmed that
DHEC continues to face long-term challenges in complying with Part C,
including availability of qualified personnel to provide evaluations
and assessments and early intervention services. Some parents who
submitted testimony indicated they were frustrated with waiting lists
for services, including speech and other therapy services, and noted
that some services were not even available or offered. One parent of a
recently diagnosed child with autism indicated there were waiting lists
and that there was a problem with service providers being available for
services such that he was forced to pay for private services himself.
Another parent noted that child find in the Catawba Nation was a
challenge for DHEC and ongoing transition training needs were
necessary. Another parent noted that ``many systemic changes need to
take place'' and that transition for children from Part C is an issue.
Parents in oral and written testimony stated that the availability of
services and waiting lists continue to be problems (Hearing 7,
13). Michael Jameson, Vice-Chair of the State Interagency
Coordinating Council (SICC) and a parent, testified that DHEC needed
more time due to its need to develop a monitoring system that monitored
all six agencies that provide Part C services and the numerous private
contractors.
Providers, including speech language pathologists, occupational
therapists and physical therapists, also submitted testimony noting
that timely provision of services was a problem due to ``limited
availability of services, especially in the home environment.'' They
noted that although BabyNet is in transition, the verification and
integration of a new web-based data system and recruitment of short-
term and long-term qualified personnel to conduct evaluations and
provide early intervention services were not quick fixes and would
require more than one year, perhaps as many as three years. Providers
stated that some of the changes made (development of a new policy and
procedure manual, new IFSP form, and other training materials) as well
as developing long-term personnel recruitment and retention policies
and incentives would take at least two to three years to develop and
fully implement. DHEC also acknowledged that monitoring to ensure that
the new policies, forms and manuals were being effectively used would
require the full three years.
The evidence gathered by the Department at the public hearings and
through its monitoring of DHEC's early intervention program establishes
an extensive failure to meet the requirements of Part C. These problems
are not isolated examples of non-compliance that can be quickly or
easily corrected, but the outgrowth of systemic failures, for which
systemic change is needed. The Department, therefore, concludes that
DHEC cannot come into immediate compliance with the requirements of
Part C.
C. DHEC Can Come Into Full Compliance With Part C Within Three Years
The Department has concluded that DHEC can meet the terms and
conditions of the attached Compliance Agreement and come into full
[[Page 63937]]
compliance with Part C within three years. The Compliance Agreement
sets forth clear goals, outcomes and objectives, specific activities to
reach those results, and timelines including target completion dates.
Testimony at the hearing supports the conclusion that DHEC is committed
to making the necessary changes to come into compliance with Part C.
For example, the SICC Vice-Chair noted that DHEC had demonstrated its
good faith and willingness to change by taking the few steps that were
in its direct control immediately after OSEP's initial on-site
monitoring visit. These steps included the development of brochures in
English and Spanish and revision of the IFSP form. Providers also
acknowledged that DHEC has demonstrated a commitment to change (``they
have made many changes'' (Cree M. Lause, PT); ``it (DHEC) has been
working steadily to correct the problems cited from OSEP's data
collection visit (in February 2002).'' (Mary Gene H. White, SLP)). To
ensure that DHEC remedies its noncompliance as soon as possible, the
Compliance Agreement sets forth realistic and specific timelines for
accomplishing each objective. DHEC officials testified that it has
already implemented the following actions to address OSEP's findings of
noncompliance:
--Development of an intra- and interagency policy/procedure manual;
--Detailed contracts for private contractor providers;
--Restructuring training for all six agency personnel on Part C
requirements and compliance issues;
--Development and dissemination of new public awareness materials in
English and Spanish;
--Development of model IFSP form to include all federally required
elements including present levels of functioning;
--Completion of IFSP form use training by all service coordinators;
--Automatic referrals by SSI to DHEC; and
--Development of interagency transition policies and conducting follow-
up transition training.
The actions that remain are long-term strategies to address the
three principal barriers to DHEC's successful implementation of Part C.
Thus, the Compliance Agreement contains specific plans to develop
effective interagency monitoring and cooperation mechanisms. It also
requires completion of a verifiable online web-based data system that
will be used and integrated by DHEC as it monitors specific BabyNet
Coordination Team compliance to ensure that timely evaluations and
assessments, IFSP completion and provision of early intervention
services and transition planning are occurring. Finally, it requires
long-term personnel recruitment and development policies to be
developed.
The Compliance Agreement also establishes realistic goals and
systemic strategies--which will be monitored by the Department--for
bringing DHEC into compliance with Part C. The Compliance Agreement
addresses the five major areas of DHEC's non-compliance with Part C,
namely: (1) General Supervision, (2) Child Find/Public Awareness, (3)
Timely and Comprehensive Child Evaluation and Assessments, (4) Timely
IFSP Development and Provision of Early Intervention Services, and (5)
Transition. Under each of these Compliance Agreement areas, DHEC sets
out objectives as well as specific steps that it will take to achieve
its objectives and address the non-compliance areas that are at issue
in OSEP's monitoring report. The Compliance Agreement also identifies
the key parties (including DHEC, other State agencies and stakeholder
groups including the SICC), who will take responsibility for carrying
out each of the strategies. Thus, specific parties can be held
accountable if an activity delineated in the Compliance Agreement is
not properly implemented.
In addition to specifying overall compliance goals, a plan for
meeting them, and the party responsible for implementing the specific
actions steps, the Compliance Agreement also sets out interim
objectives that DHEC must meet during the next three years in attaining
compliance with Part C. DHEC is committed not only to being in full
compliance with Part C within three years, but also has a plan to
address each objective in as timely a manner as possible. The
Compliance Agreement sets forth the data collection and reporting
procedures that DHEC will follow. These provisions will enable the
Department to determine whether or not DHEC is meeting each of its
commitments under the Compliance Agreement. The Compliance Agreement,
because of the obligations it imposes on DHEC, will provide the
Department with the information and authority it needs to protect the
Part C rights of South Carolina infants and toddlers with disabilities.
DHEC has developed a comprehensive plan to address the underlying
causes of its failure to comply with Part C. For these reasons, the
Department concludes that DHEC can meet all the terms and conditions of
the Compliance Agreement and come into full compliance with Part C no
later than three years from the date of the Agreement.
IV. Conclusion
For the foregoing reasons, the Department finds that: (1) Full
compliance by DHEC with the requirements of Part C is not feasible
until a future date, and (2) DHEC can meet the terms and conditions of
the attached Compliance Agreement and come into full compliance with
the requirements of Part C within three years of the date of this
decision. Therefore, the Department determines that it is appropriate
for this agency to enter into a Compliance Agreement with DHEC. Under
the terms of 20 U.S.C. 1234f, this Compliance Agreement becomes
effective on the date of this decision.
Dated: September 9, 2003.
Roderick Paige,
Secretary, U.S. Department of Education.
Attachment: South Carolina Compliance Agreement
Appendix B--Text of the Binding Provisions of the Compliance Agreement;
Compliance Agreement Under Part C of the Individuals with Disabilities
Education Act, the Infants and Toddlers with Disabilities Program,
Between the U.S. Department of Education and the South Carolina
Department of Health and Environmental Control
I. Introduction
On January 6, 2003, pursuant to an on-site monitoring visit to
South Carolina (SC) in February 2002 by the Office of Special Education
Programs (OSEP) of the U.S. Department of Education (Department), OSEP
issued a final monitoring report that documented non-compliance by the
South Carolina Department of Health and Environmental Control (DHEC)
with Part C of the Individuals with Disabilities Education Act (Part C
of the IDEA). On May 1, 2003, pursuant to a DHEC request to enter into
a compliance agreement, OSEP conducted a public hearing regarding
DHEC's ability to comply with Part C. The hearing and testimony from
representatives of other South Carolina agencies, Part C providers,
parents and other individuals confirmed that, under 20 U.S.C. 1234c,
full compliance with Part C by DHEC is not feasible until a future
date, but that DHEC is able to come into compliance with Part C in no
more than three years. Testimony at the hearing and written testimony
submitted further supported the development of a compliance
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agreement in order to bring DHEC into compliance with Part C as soon as
feasible and to allow continuation of Part C funds to South Carolina
during this process. As indicated in the Secretary's Written Findings
and Decision, the Department agrees that a compliance agreement is
appropriate to address DHEC's noncompliance with Part C.
II. Areas of Identified Non-Compliance
Pursuant to this Compliance Agreement under 20 U.S.C. 1234f, DHEC
must be in full compliance with the requirements of Part C no later
than three years from the effective date of this Agreement, which is
the date the Secretary's Written Findings of Fact and Decision are
issued and when the Compliance Agreement is signed by both DHEC and the
Department. Specifically, DHEC \4\ must ensure and document that no
later than three years from the effective date of this Agreement, the
following compliance goals are achieved within each of the following
five major areas:
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\4\ DHEC's Part C program is called the BabyNet program. The
Compliance Agreement uses the terms BabyNet and DHEC
interchangeably. The monitoring system designed by DHEC includes the
use of BabyNet Coordination Teams or BNCTs.
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1. General Supervision: DHEC must meet its general supervision
responsibilities and monitor for compliance with all requirements of
Part C, including employing appropriate methods of administering the
Part C program, including monitoring State agencies, institutions,
organizations and private providers that are part of the Part C system,
and enforcing obligations against and providing training and technical
assistance to all such entities and individuals, when identified as
part of a required improvement strategy.
2. Child Find/Public Awareness: DHEC must ensure that a coordinated
child find system results in the identification of all eligible infants
and toddlers with disabilities and that public awareness materials
about the infants and toddlers with disabilities program are made
available to the public, including rural, minority and underrepresented
populations.
3. Timely/Comprehensive Evaluations: DHEC must ensure that all
infants and toddlers referred to Part C receive timely and
comprehensive evaluations in all five developmental areas, such that
evaluations and assessments are completed within 45 days of referral to
enable the initial Individualized Family Service Plan (IFSP) team
meeting to be convened in that time period. DHEC must ensure there are
adequate personnel in all geographic areas to enable evaluations and
assessments to be completed within the 45-day timeline and to eliminate
waiting lists for evaluations and assessments.
4. Identification and Timely Provision of All Early Intervention
Services on IFSPs: DHEC must ensure that all early intervention
services needed by an eligible infant or toddler with a disability and
the child's family are identified on the IFSP, including any family
training, counseling and home visits. DHEC must ensure that all early
intervention services identified by the IFSP team are provided in a
timely manner to infants and toddlers with disabilities and their
families. DHEC must ensure that the present level of functioning for
each developmental area is identified on each IFSP.
5. Transition Planning: DHEC must conduct timely and content-
appropriate transition plans and transition meetings for children who
are transitioning from Part C to Part B of IDEA. For families
transitioning to other programs, DHEC will develop content-appropriate
transition plans and make reasonable efforts to convene a transition
conference.
During the period that this Compliance Agreement is in effect, DHEC
is eligible to receive Part C funds if it complies with the terms and
conditions of this Agreement and all other provisions of Part C not
addressed by this Agreement. Specifically, the Compliance Agreement
sets forth goals and timetables that are necessary for DHEC to come
into compliance with its Part C obligations. In addition, DHEC is
required to submit documentation concerning its compliance with these
goals and timetables. Included in the Compliance Agreement are five
individual Work Plans which address specific topic areas of DHEC's non-
compliance with Part C, and include outcomes, goals, objectives,
activities to achieve results, verification, and target completion
dates for DHEC's progress toward full compliance over the three-year
Agreement. Since some of the compliance goal areas are interrelated,
some activities and outcomes are repeated in more than one area. With
prior written approval from OSEP, amendments to the Activities to Reach
Results column listed in the tables may be made when necessary to
support achievement of compliance outcomes within the required
timelines. The Activities to Reach Results will be evaluated every six
months to determine their effectiveness and any need for change. Any
requests for changes in the activities or any other amendments to the
Agreement shall be submitted in writing to OSEP.
III. Current Status, Goals and Measurable Outcomes and Verification for
Five Areas of Non-Compliance
1. Area 1: General Supervision
Current Status: The Department's January 6, 2003 monitoring report
found that: DHEC did not have a method to identify local noncompliance
with Part C requirements, that Part C private providers were not
following Part C regulations (including provisions that require early
intervention services to be provided in the natural environment), DHEC
did not monitor other agencies, institutions, organizations and
providers used by the State to carry out Part C, DHEC did not enforce
all obligations under Part C and DHEC had not adopted and used proper
methods of administering each program, including providing technical
assistance and training. DHEC's self-assessment data and BabyTrac Data
support these findings.
Outcome: DHEC will ensure that all eligible infants and toddlers
and their families have available appropriate early intervention
services in accordance with Part C requirements through the development
and implementation of an interagency comprehensive monitoring and
general supervision system that includes a continuous improvement and
focused monitoring process.
Measurable Goals and Verification: DHEC has identified the
following goals and will either provide or make available verification
to the Department for each goal.
Goal 1: Monitoring policies, procedures, and instruments will
identify compliance deficiencies and ensure these are corrected in a
timely manner.
Goal 2: Ongoing technical assistance and training to public and
private providers, administrators, paraprofessionals, and special
instructors will be provided to ensure compliant provision of services
to infants and toddlers with disabilities and their families.
Goal 3: Appropriate sanctions will be used when necessary to
enforce correction of deficiencies.
Verification: In its quarterly report to OSEP, DHEC shall provide
summaries of the status of each of the above goals (consistent with the
General Supervision Compliance Work Plan) and shall provide a narrative
of how DHEC has analyzed and responded to the data provided by each
BNCT. DHEC shall also provide in its quarterly reports, summaries of
progress in
[[Page 63939]]
meeting the target completion dates for each of the activities
identified under general supervision, including (1) the identification
and correction of any barriers, legislative or other, to ensure
compliance with Part C, (2) an interagency memorandum of agreement that
focuses on monitoring of all State agencies that provide Part C
services, and (3) procedures for enforcing or correcting identified
non-compliance, including use of appropriate sanctions. In addition,
DHEC will submit the verification data and/or documentation listed in
the attached General Supervision Compliance Work Plan on the dates the
quarterly reports are due to OSEP.
2. Area 2: Child Find/Public Awareness
Current Status: OSEP's monitoring report reflected that: public
awareness activities were not effective in informing parents of infants
and toddlers with disabilities of underrepresented populations; there
was a lack of coordination for child find and public awareness among
relevant agencies (including child care, migrant Head Start, SSI);
physician referrals were problematic including ``wait and see''
attitude and misperception that BabyNet addresses child health instead
of development; there was a lack of public awareness materials in
daycare centers, pediatric offices or developmental centers; and public
awareness materials were not distributed or available in Spanish.
DHEC's self-assessment data and BabyTrac Data support these findings.
Outcome: DHEC will ensure the development and implementation of a
comprehensive, coordinated public awareness/child find system that
results in the identification, evaluation, and assessment of all
eligible infants and toddlers.
Measurable Goals and Verification: DHEC has identified the
following goals and will either provide or make available verification
to the Department for each goal.
Goal 1: DHEC shall ensure that the child find system is coordinated
with all major efforts to locate and identify eligible children
conducted by other State agencies.
Goal 2: DHEC will ensure that the child find system is coordinated
with all other major efforts to locate and identify children conducted
by other State agencies, programs, and organizations, and DHEC shall
conduct outreach to these entities including private entities such as
pediatric practices and day care centers.
Goal 3: Families will have access to public awareness materials (to
ensure identification of all eligible infants and toddlers and to
enable access to culturally competent services) that inform and promote
referral of eligible infants and toddlers to the Part C system.
Verification: Within the first week of each month and each month
thereafter, each BNCT will prepare a report regarding the Child Find
verification data listed in the Child Find Compliance Work Plan. In its
quarterly report to OSEP, DHEC shall provide monthly data summaries, by
each BNCT, and shall provide a narrative of how DHEC has analyzed and
responded to the data provided by each BNCT.
3. Area 3: Timely/Comprehensive Evaluations
Current Status: OSEP's monitoring report reflected that:
Evaluations and assessments were not completed in all five
developmental areas; content on initial IFSPs was limited to future
referrals for further evaluation and assessment; infants and toddlers
were not evaluated in the areas of vision and hearing; evaluations and
assessments were often not completed within the 45-day timeline; there
are waiting lists for evaluations and assessments; and shortages of
providers in some areas impacted completion of evaluations and
assessments in a timely manner.
Outcome: DHEC will ensure that infants and toddlers receive timely
comprehensive evaluations in all five developmental areas to enable the
initial IFSP team meeting to be convened within 45 calendar days from
referral.
Measurable Goals and Verification: DHEC has identified the
following goals and will either provide or make available verification
to the Department for each goal.
Goal 1: DHEC will ensure that evaluations and assessments are
completed in all five developmental areas--cognitive development,
physical development, including vision and hearing, communication
development, social and emotional development and adaptive development.
Goal 2: DHEC will ensure that infants and toddlers receive timely
evaluations and assessments in order to enable the initial IFSP team
meeting to be convened within 45 calendar days from referral and
eliminate waiting lists for evaluations and assessments.
Verification: Each BNCT will demonstrate continuous improvement in
ensuring all infants and toddlers receive timely evaluations and
assessments, including vision and hearing within the 45-day timeline.
Quarterly benchmarks will be established for each BNCT and incorporated
in the BNCT Compliance Plan. Benchmarks will take the BNCT from their
specific baseline in this area and ensure continuous substantial
progress until all infants and toddlers with disabilities receive
timely evaluations and assessments in all developmental areas,
including vision and hearing, within the 45-day timeline. DHEC will
monitor each BNCT to ensure that benchmarks are met and will intervene
directly with individual BNCTs, as necessary. In its quarterly report
to OSEP, DHEC shall provide monthly summaries, by each BNCT and shall
provide a narrative of how DHEC has analyzed and responded to the data
provided by each BNCT.
4. Area 4: Proper Development of, and Timely Provision of Early
Intervention Services on, Individualized Family Service Plan (IFSP)
Current Status: OSEP's monitoring report reflected that: Present
levels of functioning were written in some developmental areas, but
were frequently omitted for the physical and communication
developmental areas; all needed services, including family support
services, were not listed on the IFSP; providers reported that it was
difficult to obtain counseling services and parenting classes; the
provision of early intervention services was delayed; for some infants
and toddlers with disabilities and families, EI services were not
provided; and waiting lists existed for early intervention services.
Outcome: DHEC will ensure the development and implementation of
complete IFSPs for all eligible infants and toddlers with disabilities
and their families and ensure that all infants and toddlers with
disabilities and their families are provided early intervention
services in a timely manner.
Measurable Goals and Verification: DHEC has identified the
following goals and will either provide or make available verification
to the Department for each goal.
Goal 1: All IFSPs will contain the required components in
accordance with Part C.
Goal 2: All infants and toddlers with disabilities and their
families will receive all early intervention services identified on
their IFSP in a timely manner and waiting lists for all early
intervention services will be eliminated.
Verification: Each BNCT will demonstrate continuous improvement in
eliminating waiting lists for receipt of early intervention services on
the IFSP each quarter. Quarterly benchmarks will be established for
each BNCT and incorporated in the BNCT's Compliance Plan. Benchmarks
will take the BNCT
[[Page 63940]]
from their specific baseline in this area and ensure continuous
substantial progress until there are no infants and toddlers on waiting
lists for evaluation and assessment. DHEC will monitor each BNCT to
ensure that benchmarks are met and will intervene directly with
individual BNCTs, as necessary. In its quarterly report to OSEP, DHEC
shall provide monthly summaries by each BNCT and shall provide a
narrative of how DHEC has analyzed and responded to the data provided
by each BNCT.
5. Area 5: Timely Transition Planning and Conferences
Current Status: OSEP's monitoring report reflected that: School
districts were not being notified of BabyNet eligible children
approaching age three; transition meetings were not being held in
accordance with Part C requirements; and transition plans were not
being developed and implemented in accordance with Part C requirements.
Outcome: DHEC will ensure that timely transition notices are
provided and transition meetings are held and that transition plans are
developed to assist all eligible children and their families as they
exit Part C.
Measurable Goals and Verification: DHEC has identified the
following goals and will either provide or make available verification
to the Department for each goal.
Goal 1: DHEC will ensure that the local education agency is
notified of children who are approaching the age for transition at
least 90 days prior to the child turning three in accordance with Part
C.
Goal 2: DHEC will ensure that a transition meeting is held in
accordance with the requirements of Part C of IDEA.
Goal 3: DHEC will ensure that transition plans are developed and
implemented in accordance with the requirements under Part C.
Verification: Each BNCT will demonstrate continuous improvement in
reducing the number of eligible children who have not received required
Part C Transition planning in a timely manner when exiting BabyNet.
Quarterly benchmarks will be established for each BNCT and incorporated
in the BNCT's Compliance Plan. Benchmarks will take the BNCT from their
specific baseline in this area and ensure continuous substantial
progress until all eligible children receive required Part C Transition
planning in a timely manner when exiting BabyNet. DHEC will monitor
each BNCT to ensure that benchmarks are met and will intervene directly
with individual BNCTs, as necessary. In its quarterly report to OSEP,
DHEC shall provide monthly summaries, by each BNCT and shall provide a
narrative of how DHEC has analyzed and responded to the data provided
by each BNCT.
Other Conditions: DHEC agrees that its continued eligibility to
receive Part C funds is predicated upon compliance with statutory and
regulatory requirements of that program, which includes requirements
not addressed specifically by this Agreement. Any failure by DHEC to
comply with the goals, objectives, timetables, verification or other
provisions of the Compliance Agreement, including the reporting
requirements, will authorize the Department to consider the agreement
no longer in effect. If DHEC fails to comply with the terms of the
Agreement, the Department may take any actions authorized under the
General Education Provisions Act (GEPA at 20 U.S.C. 1200 et seq.) and
the IDEA at 20 U.S.C. 1401 et seq. and 1443-1445. Such actions may
include, under 20 U.S.C. 1234c, the withholding of Part C funds from
the State (consistent with the procedures set forth in the IDEA or at
20 U.S.C. 1234d).
Signed for the South Carolina Department of Health and
Environmental Control:
Dated: August 20, 2003.
C. Earl Hunter,
Commissioner.
Signed for the U.S. Department of Education:
Dated: September 9, 2003.
Roderick Paige,
Secretary.
Date this Compliance Agreement Becomes Effective: September 9,
2003. (Date on which Written Findings of Fact are Issued).
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[FR Doc. 03-28174 Filed 11-7-03; 8:45 am]
BILLING CODE 4000-01-C