FR Doc 07-2140
[Federal Register: May 9, 2007 (Volume 72, Number 89)]
[Proposed Rules]
[Page 26455-26531]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09my07-20]
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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
[Docket ID ED-2007-OSERS-131]
RIN 1820-AB59
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 (NPRM).
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SUMMARY: The Secretary proposes to amend the regulations governing the
Early Intervention Program for Infants and Toddlers with Disabilities.
The proposed regulations would implement changes made to the
Individuals with Disabilities Education Act by the Individuals with
Disabilities Education Improvement Act of 2004.
DATES: We must receive your comments on or before July 23, 2007.
We will hold public meetings about this NPRM. The dates, times, and
places of the meetings will be published in a separate notice in the
Federal Register.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments by fax or by e-mail. Please submit your comments only
one time, in order to ensure that we do not receive duplicate copies.
In addition, please include the Docket ID at the top of your comments.
Federal eRulemaking Portal: Go to http://www.regulations.gov
, select ``Department of Education'' from the agency
drop-down menu, then click ``Submit.'' In the Docket ID column, select
ED-2007-OSERS-131 to add or view public comments and to view supporting
and related materials available electronically. Information on using
Regulations.gov, including instructions for submitting comments,
accessing documents, and viewing the docket after the close of the
comment period, is available through the site's ``User Tips'' link.
Postal Mail, Commercial Delivery, or Hand Delivery. If you
mail or deliver your comments about these proposed regulations, address
them to Alexa Posny, U.S. Department of Education, 400 Maryland Avenue,
SW., room 4109, Potomac Center Plaza, Washington, DC 20202-2600.
Privacy Note: The Department's policy for comments received from
members of the public (including those comments submitted by mail,
commercial delivery, or hand delivery) is to make these submissions
available for public viewing on the Federal eRulemaking Portal at
http://www.regulations.gov. All submissions will be posted to the
Federal eRulemaking Portal without change, including personal
identifiers and contact information.
FOR FURTHER INFORMATION CONTACT: Alexa Posny, U.S. Department of
Education, 400 Maryland Avenue, SW., room 4109, Potomac Center Plaza,
Washington, DC 20202-2600. Telephone: (202) 245-7459, extension 3.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) upon request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Invitation to Comment
We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have maximum effect in
developing the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the proposed regulations.
We 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
regulations. Please let us know of any further opportunities we should
provide to reduce the potential costs or increase potential benefits
while preserving the effective and efficient administration of the
program.
During and after the comment period, you may inspect all public
comments about these proposed regulations by accessing Regulations.gov.
You may also inspect the comments, in person, in room 4165, Potomac
Center Plaza, 550 12th 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 these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.
Public Meetings
We will hold public meetings about this NPRM. Each meeting will
take place from 4 p.m. to 7:30 p.m. We will be providing more specific
information on meeting dates and locations in a separate notice
published in the Federal Register.
Assistance to Individuals With Disabilities at the Public Meetings
The meeting sites will be accessible to individuals with
disabilities and sign language interpreters will be available. If you
need an auxiliary aid or service other than a sign language interpreter
to participate in the meeting (e.g., interpreting service such as oral,
cued speech, or tactile interpreter; assisted listening device; or
materials in alternate format), notify the contact person listed under
FOR FURTHER INFORMATION CONTACT at least two weeks before the scheduled
meeting date. Although we will attempt to meet a request we receive
after this date, we may not be able to make available the requested
auxiliary aid or service because of insufficient time to arrange it.
Background
On December 3, 2004, the Individuals with Disabilities Education
Improvement Act of 2004 was enacted into law as Public Law 108-446.
This statute, as passed by Congress and signed by the President,
reauthorizes and makes significant changes to the Individuals with
Disabilities Education Act.
Part C of the Individuals with Disabilities Education Act, as
amended by the Individuals with Disabilities Education Improvement Act
of 2004 (Act or IDEA), provides Federal funds to States to make
available early intervention services for infants and toddlers with
disabilities (from birth to age three) and their families. In 2004, the
Act was revised to--(1) Emphasize child find for underserved
populations of infants and toddlers; (2) increase accountability for
the success of early intervention services; (3) ensure a seamless
transition for children and families when they exit from the Part C
program to other appropriate programs; (4) provide States with
flexibility to provide early intervention services to children with
disabilities who are age three and older; (5) provide States with
alternatives to dispute resolution under
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Part C's procedural safeguards; (6) clarify certain definitions
including specific early intervention services, qualified personnel,
and natural environments; and (7) streamline Part C grant application
requirements.
Changes to the current Part C regulations (34 CFR part 303) are
necessary in order for the Department to appropriately and effectively
address the provisions of the law and to assist State lead agencies and
early intervention service programs and providers in implementing their
responsibilities under the law.
On December 29, 2004, the Secretary published a notice in the
Federal Register requesting advice and recommendations from the public
on regulatory issues under the Act, and announcing a series of seven
public meetings during January and February of 2005 to seek further
input and suggestions for developing regulations based on the new
statute.
Over 6000 public comments were received in response to the Federal
Register notice and the seven public meetings, including letters from
parents, public agency personnel, early intervention personnel, and
parent-advocate and professional organizations. The comments addressed
the major provisions of the law. These comments were reviewed and
considered in developing this NPRM. The Secretary appreciates the
interest and thoughtful attention of the commenters responding to the
December 29, 2004 notice and participating in the seven public
meetings.
General Proposed Regulatory Plan and Structure
In developing this NPRM, we have elected to prepare one
comprehensive document that incorporates the majority of the
requirements from the law along with the applicable regulations, rather
than publishing a regulation that does not include statutory
provisions. The rationale for doing this is to create a single
reference document for parents, State lead agencies, early intervention
service programs and providers, State Interagency Coordinating
Councils, and others to use, so there is no need to shift between one
document for regulations and a separate document for the statute.
Although this approach will result in longer regulations, it is our
impression that there is support for this practice.
We have reorganized the regulations by following the general order,
substance, and structure of provisions in the statute, rather than
using the arrangement of the current regulations. We believe this
change will be helpful to parents, State lead agencies, early
intervention service providers and the public both in reading the
regulations, and in finding the direct link between a given statutory
requirement and the regulation related to that requirement.
The proposed regulations contain Part C statutory provisions (even
where those provisions are not in the current regulations but were in
the statute prior to 2004). For example, proposed Sec. 303.104
(Acquisition of equipment and construction or alteration of facilities)
contains new regulatory language that incorporates the longstanding
statutory language in section 605 of the Act, which was unchanged by
the 2004 amendments to the Act. Because these changes in the proposed
regulations do not involve new substantive requirements, but rather
incorporate longstanding statutory requirements, they are not
identified in this preamble as substantive changes. The changes in
these proposed regulations are identified in the appropriate locations
in the preamble.
In general, the requirements related to a given statutory section
will be included in one location and in the same general order as in
the statute, rather than being spread throughout several subparts, as
the statutory sections are in the current regulations. One exception to
this approach is that the regulations implementing section 638 of the
Act (Uses of funds), are combined with the regulations implementing
section 632 (System of payments) and section 640 of the Act (Payor of
last resort) in proposed subpart F, because both relate to financial
and interagency matters.
As restructured in this NPRM, these proposed regulations are
divided into eight major subparts, each of which is directly linked to,
and comports with, the general order of provisions in a specific
section of the Act. For example, we have revised subpart H in the
proposed regulations to include all provisions regarding the allocation
of Part C funds (from section 643 of the Act), rather than having those
provisions dispersed among several different subparts, as in the
current Part C regulations.
In addition, these proposed regulations do not contain notes
following the regulatory text as in the current regulations. Where
necessary and relevant, language from the notes in the current
regulations has been incorporated into the proposed regulations.
Finally, these proposed regulations incorporate, where practicable,
applicable Part B regulations in order to align the two systems,
minimize administrative costs (particularly for lead agencies that are
also State educational agencies (SEAs) responsible for administering
both Parts B and C of the Act in a State), and promote a seamless
system of services for infants, toddlers, children, and youth with
disabilities birth through 21 years of age.
Significant Proposed Regulations
We discuss substantive issues under the sections of the proposed
regulations to which they pertain. Generally, we do not address
proposed regulatory provisions that are technical or otherwise minor in
effect.
Subpart A--General
Proposed subpart A would incorporate the provisions in sections
601, 602, 631, and 632 of the Act regarding the purpose of and
definitions under Part C of the Act.
Purpose and Applicable Regulations
Proposed Sec. 303.1(a) through (d) (Purpose) would be
substantively unchanged and would incorporate sections 601(d)(2) and
631(a)(5) and (b)(1) through (3) of the Act regarding the purposes of
Part C of the Act. Proposed Sec. 303.1(e), regarding expanding
opportunities for children under three who would be at risk of
developmental delay, would be added to incorporate the language from
section 631(b)(4) of the Act.
Proposed Sec. 303.2, regarding eligible recipients under Part C of
the Act would remain substantively unchanged from current Sec. 303.2,
and would be consistent with the definition of State in section 602(31)
of the Act and in proposed Sec. 303.34.
Current Sec. 303.3, regarding use of funds for activities
supported under Part C of the Act, would be incorporated into proposed
Sec. 303.501 regarding permissive use of funds by the lead agency in
subpart F of these proposed regulations. Current Sec. 303.4 regarding
the limitation on eligible children would be removed because the
definitions of child and infant or toddler with a disability in
proposed Sec. Sec. 303.6 and 303.21, respectively, make clear that
part 303 applies to infants and toddlers with disabilities who are
under the age of three and therefore does not apply to children with
disabilities ages three and older who may be entitled to receive a free
appropriate public education under Part B of the Act.
Proposed Sec. 303.3, regarding applicable regulations, would
incorporate the provisions from current Sec. 303.5. Proposed Sec.
303.3(a)(1) would incorporate the language from current
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Sec. 303.5(a)(2). Proposed Sec. 303.3(a)(2) would include the
references from the Education Department General Administrative
Regulations (EDGAR) in current Sec. 303.5(a)(1). The references to the
Part B regulations in current Sec. 303.3(a)(3) would be removed
because all applicable provisions from the Part B regulations would be
included in these proposed regulations. For example, the provisions in
the Part B regulations regarding confidentiality and the procedures for
the Secretary's determination of State eligibility to receive a grant,
which are cross-referenced in current Sec. 303.5(a)(3), would appear,
respectively, in proposed Sec. Sec. 303.402 through 303.417 and
proposed Sec. Sec. 303.231 through 303.236.
Proposed Sec. 303.3(b) would incorporate the language from current
Sec. 303.5(b)(1), regarding the meaning of State educational agency,
to indicate that any reference to the term State educational agency
means the lead agency under this part.
Current Sec. 303.5(b)(2) through (b)(5) regarding the meaning of
terms and cross-references from the Part B regulations as applied to
the Part C regulations would be removed as unnecessary because we would
incorporate applicable definitions and provisions from the Part B
regulations in these proposed regulations.
Definitions Used in This Part
Proposed Sec. 303.4 (Act) would incorporate the statutory
definition of Act from section 601(a) of the Act and current Sec.
303.6, and would further clarify that the Act has been amended.
Proposed Sec. 303.5 (At-risk infant or toddler) would incorporate
the statutory definition from section 632(1) of the Act. This section
would also include the examples of biological and environmental at-risk
factors listed in Note 2 following current Sec. 303.16 as follows: Low
birth weight, respiratory distress as a newborn, lack of oxygen, brain
hemorrhage, infection, nutritional deprivation, and history of abuse or
neglect. With this change, Note 2 following current Sec. 303.16 would
be removed from the regulations. Proposed Sec. 303.5 would also
include as an example of at-risk infants and toddlers whom the State
may elect to serve those infants and toddlers directly affected by
illegal substance abuse or withdrawal symptoms resulting from prenatal
drug exposure to reflect the new provisions described in section
637(a)(6)(B) of the Act.
Proposed Sec. 303.6 (Child) would modify the definition of child
in current Sec. 303.7 to mean an individual under age six and would be
consistent with the State option outlined in proposed Sec. 303.211 to
serve children ages three and older.
Proposed Sec. 303.7 (Consent) would incorporate the provisions of
current Sec. 303.401(a), except that proposed Sec. 303.7(c)(2) would
add that if the parent revokes consent, that revocation is not
retroactive (i.e., it does not apply to an action that has occurred
before the consent was revoked), consistent with the Part B regulations
in 34 CFR 300.9 (71 FR 46757).
Proposed Sec. 303.8 (Council) would remain substantively unchanged
from current Sec. 303.8 and would reflect the statutory definition in
section 632(2) of the Act.
Proposed Sec. 303.9 (Day) would remain substantively unchanged
from current Sec. 303.9.
Proposed Sec. 303.10 (Developmental delay) would remain
substantively unchanged from current Sec. 303.10 and would cross-
reference proposed Sec. 303.111 regarding the State definition of
developmental delay and proposed Sec. 303.203(c) regarding the
requirement that the State must include its rigorous definition of
developmental delay in its application to the Department.
Proposed Sec. 303.11 (Early intervention service program or EIS
program) would replace current Sec. 303.11 and would clarify that the
EIS program is an entity designated by the lead agency for reporting
under sections 616(b)(2)(C) and 642 of the Act and proposed Sec. Sec.
303.700 through 303.702.
Proposed Sec. 303.12(a) (Early intervention service provider or
EIS provider) would clarify that an EIS provider can be an entity
(whether public, private, or nonprofit) or an individual that provides
early intervention services under Part C of the Act in the State
whether or not the entity or individual receives Federal funds under
Part C of the Act and may include the lead agency and a public agency
under Part C of the Act, where appropriate. For example, an EIS
provider may include the lead agency, a public agency, or individuals
if these entities or individuals are responsible for conducting
evaluations and assessments, providing service coordination, or other
Part C services.
Proposed Sec. 303.12(b) would be similar to current Sec.
303.12(c) in that it would continue to clarify that the EIS provider is
responsible for: participating in the multidisciplinary team's
assessment of an infant or toddler to develop integrated goals and
outcomes for the individualized family service plan (IFSP); and
providing early intervention services in accordance with the infant's
or toddler's IFSP because States must ensure EIS providers are
providing direct services to eligible children in addition to their
other roles. However, proposed Sec. 303.12(b) would further identify
that the EIS provider would be responsible for consulting with and
training parents and others regarding the provision of the early
intervention services described in the infant's or toddler's IFSP.
Proposed Sec. 303.13, regarding the definition of early
intervention services, would replace current Sec. 303.12(a) and (b)
and would incorporate the provisions of the definition of this term in
section 632(4) of the Act. In addition, proposed Sec. 303.13(a)(2)
would retain the language in current Sec. 303.12(a)(2) to clarify that
the early intervention services are selected in collaboration with
parents. Proposed Sec. 303.13(a)(4) would clarify that early
intervention services are designed to meet the developmental needs of
an infant or toddler with a disability, and as requested by the family,
the needs of the family to assist appropriately in the infant's or
toddler's development, as identified by the IFSP team. Proposed Sec.
303.13(a)(8) would clarify that early intervention services, to the
maximum extent appropriate, are provided in natural environments, as
defined in proposed Sec. 303.26 and consistent with proposed Sec.
303.126.
Proposed Sec. 303.13(b) regarding types of early intervention
services would substantively incorporate the provisions of current
Sec. 303.12(d) but would not include the references from current Sec.
303.12(d)(6) and (d)(7) to nursing services and nutrition services,
which are not specifically listed in section 632(4)(E) of the Act. Only
those types of services identified in section 602(4)(E) of the Act
would be retained. The list of services identified in this proposed
section is not intended to comprise an exhaustive list of the types of
services that may be provided to an infant or toddler with a disability
as an early intervention service. Nursing services or nutrition
services could be deemed early intervention services if they are
provided by qualified personnel and otherwise meet the definition of
early intervention services.
Proposed Sec. 303.13(b)(1)(i) (Assistive technology device) and
(b)(1)(ii) (Assistive technology service) would reflect the statutory
definition of these terms in section 602(1) and 602(2) of the Act. The
definition of assistive technology device as well as the definition of
health services in proposed Sec. 303.16(c)(1)(iii) (Health services)
would exclude, as a covered service under Part C of the Act, a medical
device that is surgically implanted,
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including cochlear implants, or the optimization or maintenance or
replacement of such a device, consistent with section 602(1)(B) of the
Act and 34 CFR 300.34(b) of the Part B regulations (71 FR 46760).
Optimization or ``mapping'' of a cochlear implant means the
adjustment or fine tuning of the electrical stimulation levels provided
by the cochlear implant. These adjustments are required as an infant or
toddler learns to discriminate signals to a finer degree. Optimization
services are generally provided at specialized clinics by specially
trained professionals. These mapping or remapping services are not the
responsibility of the lead agency under Part C of the Act.
Although mapping is not an early intervention service, the need for
it and the use of a cochlear implant by an infant or toddler with a
disability may indicate a need for services, some of which would be
considered early intervention services such as speech therapy,
assistive listening devices and auditory training. In addition, for a
child who has been receiving Part C services, the implantation of a
device may require a reevaluation of the child's level of functioning
and review and, if appropriate, revision of the child's IFSP.
Nothing in proposed Sec. 303.13(b)(1)(i) (Assistive technology
device), proposed Sec. 303.13(b)(1)(ii) (Assistive technology
service), and proposed Sec. 303.16(c)(1)(iii) (Health services) would
limit the right of an infant or toddler with a disability with a
surgically implanted device (such as a cochlear implant) and the
child's family to receive the early intervention services that are
determined by the IFSP team to be necessary to meet the unique
developmental needs of the infant or toddler. Thus, although a cochlear
implant is expressly excluded from being an assistive technology device
under Part C of the Act, funds under Part C of the Act may under
certain circumstances be used to pay for a hearing aid. A hearing aid
in general is not covered because it is considered a personal device
used for daily purposes. However, if the hearing aid is identified as a
needed assistive technology device by the infant's or toddler's IFSP
team in order to meet the specific developmental outcomes of the infant
or toddler with a disability, funds under Part C of the Act may be used
to provide this early intervention service.
Proposed Sec. 303.13(b)(2) (Audiology services) would be
substantively unchanged from current Sec. 303.12(d)(2), except that
the term in current Sec. 303.12(d)(2) would be changed from audiology
to audiology services because the section outlines specific audiology
services provided.
Proposed Sec. 303.13(b)(3) (Family training, counseling, and home
visits) would be substantively unchanged from current Sec.
303.12(d)(3).
Proposed Sec. 303.13(b)(4) (Health services) would reference the
definition of health services in proposed Sec. 303.16, consistent with
the reference to the definition of health services in current Sec.
303.12(d)(4).
Proposed Sec. 303.13(b)(5) (Medical services) would be
substantively unchanged from current Sec. 303.12(d)(5) (Medical
services only for diagnostic or evaluation). Proposed Sec.
303.13(b)(5) would clarify that the term medical services means
services provided by a licensed physician for diagnostic or evaluation
purposes to determine a child's developmental status and need for early
intervention services.
Proposed Sec. 303.13(b)(6) (Occupational therapy) would be
substantively unchanged from current Sec. 303.12(d)(8).
Proposed Sec. 303.13(b)(7) (Physical therapy) would be
substantively unchanged from current Sec. 303.12(d)(9).
Proposed Sec. 303.13(b)(8) (Psychological services) would be
substantively unchanged from current Sec. 303.12(d)(10).
Proposed Sec. 303.13(b)(9) (Service coordination services) would
cross-reference the definition of service coordination services in
proposed Sec. 303.33, which substantively includes the language in
current Sec. 303.12(d)(11) regarding the meaning of service
coordination services.
Proposed Sec. 303.13(b)(10) (Social work services) would be
substantively unchanged from current Sec. 303.12(d)(12).
Proposed Sec. 303.13(b)(11) (Special instruction) would be
substantively unchanged from current Sec. 303.12(d)(13).
Proposed Sec. 303.13(b)(12) (Speech-language pathology services)
would reflect the definition of speech-language pathology in current
Sec. 303.12(d)(14) and the language from section 632(4)(E)(iii) of the
Act, which includes sign language and cued language services, such as
speech-language pathology services, as early intervention services. The
definition also would clarify that interpreting or transliteration
services include oral transliteration (such as amplification) services.
The definition would also add that auditory/oral language services
would be used with respect to infants and toddlers with disabilities
who are hearing impaired, which would include services to the infant or
toddler with a disability and the family to teach auditory/oral
language.
Proposed Sec. 303.13(b)(13) (Transportation and related costs)
would be substantively unchanged from current Sec. 303.12(d)(15)
except that we would remove taxi from among the examples because
transportation via taxi is less common than transportation via the
other examples such as common carriers. Proposed Sec. 303.13(b)(14)
(Vision services) would be substantively unchanged from current Sec.
303.12(d)(16).
Proposed Sec. 303.13(c) (Qualified personnel) would be similar to
current Sec. 303.12(e) except for the following changes. As previously
described in the discussion related to proposed Sec. 303.13(b)
regarding the types of early intervention services, registered
dieticians would be included in the list of types of qualified
personnel to reflect the provisions of section 632(4)(F)(viii) of the
Act. The reference to nutritionists in current Sec. 303.12(e)(4) would
not be included in proposed Sec. 303.13(c) consistent with section
632(4) of the Act.
Proposed Sec. 303.13(c)(11) also would provide that teachers of
infants or toddlers with hearing impairments (including deafness) and
teachers of the visually impaired (including blindness) are special
educators. As stated in note 284 of the U.S. House of Representatives
Conference Report No. 108-779 (Conf. Rpt.), the ``Conferees commend the
Office of Special Education and Rehabilitative Services for developing
updated early intervention materials that set out the full range of
options for families with deaf and hard of hearing children who now
have the potential to develop age appropriate language in whatever
modality their parents choose.'' Note 285 in the Conf. Rpt. further
states that ``[t]he conferees intend that the term `special educators'
include `teachers of the deaf'.'' We propose to use the term ``teachers
of the hearing impaired'' rather than the term ``teachers of the deaf''
because the former includes teachers of the deaf, and provides States
with broader flexibility to provide teachers to meet the language and
communication needs of infants or toddlers who are hearing impaired,
including infants and toddlers who are deaf. It is the intent of the
Department and these proposed regulations to continue to ensure that
such qualified personnel are available for infants and toddlers with
hearing impairments including deafness.
The Department requests comment on whether it is necessary to
classify teachers of the visually impaired as special educators as we
have proposed in proposed Sec. 303.13(c)(11). We believe that such
classification in the regulations is necessary to ensure that
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qualified personnel are available for infants and toddlers with visual
impairments, including blindness. Additionally, to conform to section
632(4)(F) of the Act, proposed Sec. 303.13(c)(13) would include vision
specialists, ophthalmologists, and optometrists to meet the service and
sensory needs of infants and toddlers who are visually impaired,
including infants and toddlers who are blind.
The note following current Sec. 303.12 would be removed because
the substance of the note would be reflected in proposed Sec.
303.13(d). Proposed Sec. 303.13(d) would clarify that the lists of
early intervention services and personnel in proposed Sec. 303.13(b)
and (c) are not exhaustive. The list does not preclude the provision of
other early intervention services for an infant or toddler with a
disability and the child's family to enhance the developmental needs of
the child. Such Part C services can include, for example, respite care
if the IFSP team identifies it as a service necessary to enable the
parent of an infant or toddler with a disability to participate in or
receive other early intervention services in order to meet the
developmental outcomes identified on the child's IFSP. In addition,
persons other than those identified in proposed Sec. 303.13(c) could
provide early intervention services provided that the services
otherwise met the requirements of this part.
Proposed Sec. 303.14 (Elementary school) would incorporate the
definition of this term from section 602(6) of the Act. We propose to
add this definition here because Part C of the Act now includes
references to elementary schools in the discussion of a State's option
to make early intervention services under Part C of the Act available
to children ages three and older under sections 632 and 635(c) of the
Act.
Proposed Sec. 303.15 (Free appropriate public education or (FAPE))
would be added to incorporate the definition of FAPE from section
602(9) of the Act, given the State's option to make early intervention
services available to children in lieu of receiving FAPE under sections
632(5)(B)(ii) and 635(c) of the Act.
Proposed Sec. 303.16 (Health services) would be substantively
unchanged from current Sec. 303.13 except that, consistent with the
language in section 602(1) of the Act, the term would not include
optimization (e.g., mapping), maintenance or replacement of surgically
implanted medical devices, including cochlear implants. We have
provided further clarification on the issue of cochlear implants
elsewhere in this preamble in the discussion of the definition of
assistive technology device.
Additionally, proposed Sec. 303.16(c)(1)(iii) would clarify that
an infant or toddler with a surgically implanted device, such as a
cochlear implant, is entitled to receive early intervention services
that are identified on the child's IFSP as being needed to meet the
child's developmental needs, and that nothing under Part C of the Act
prevents the EIS provider from routinely checking either a hearing aid
or external components of a surgically implanted device of an infant or
toddler with a disability to determine whether they are functioning
properly. This clarification in proposed Sec. 303.16(c)(1)(iii) would
be similar to the provision in 34 CFR 300.34(b)(2) of the Part B
regulations (71 FR 46760).
Proposed Sec. 303.16(c)(2), regarding devices necessary to control
or treat a medical condition would be clarified by adding the following
examples of devices that are necessary to control or treat a medical
condition: heart monitors, respirators and oxygen, and gastrointestinal
feeding tubes and pumps.
The note following current Sec. 303.13 would be removed as
unnecessary. The statement in the note regarding the distinction
between health services required under Part C of the Act and services
that are not required under Part C of the Act would be reflected in
proposed Sec. 303.16. The discussion regarding medical and other
services the child needs or is receiving through other sources that are
neither required nor funded under Part C of the Act would be included
in the child's IFSP and addressed in proposed Sec. 303.344(e).
Proposed Sec. 303.17 (Homeless children) would incorporate the
definition of homeless children from section 602(11) of the Act and
would clarify that, for purposes of Part C of the Act, references to
homeless children include only homeless children under the age of
three.
Proposed Sec. 303.18 (Include; including) would remain
substantively unchanged from current Sec. 303.15.
Proposed Sec. 303.19(a) and (b), which provides the definitions of
Indian and Indian tribe, respectively, would incorporate the
definitions of these terms in section 602(12) and 602(13) of the Act.
In addition, proposed Sec. 303.19(c) would clarify that the Bureau of
Indian Affairs (BIA) in the U.S. Department of the Interior, which is
only authorized to provide funding to Federally Recognized tribes, is
not required to provide funding to a State Indian tribe for which the
BIA is not responsible.
Section 602(13) of the Act defines Indian tribe to include ``any
Federal or State Indian tribe'' and does not exclude State Indian
tribes that are not Federally Recognized tribes. The list of Indian
entities recognized as eligible to receive services from the United
States is published in the Federal Register, pursuant to section 104 of
the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a-
1. The Federal government does not maintain a list of other State
Indian tribes. Under section 634(1) of the Act, the lead agency in the
State is responsible for ensuring that 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.
Proposed Sec. 303.20 (Individualized family service plan or IFSP)
would incorporate the language from current Sec. 303.340(b) and would
clarify, consistent with the Act, that the IFSP must be implemented as
soon as possible once parental consent to the early intervention
services on the IFSP is obtained consistent with proposed Sec.
303.420. The definition of IFSP also would provide that an IFSP is
based on the evaluation and assessment described in proposed Sec.
303.320, that it would include the content in proposed Sec. 303.344,
and that it would be developed under the IFSP procedures in proposed
Sec. Sec. 303.342, 303.343, and 303.345.
Proposed Sec. 303.21(a) and (b) (Infant or toddler with a
disability) would remain substantively unchanged from current Sec.
303.16 and would reflect the statutory definition of the term in
section 632(5) of the Act. In addition, the following examples of
diagnosed conditions, listed in Note 1 following current Sec. 303.16,
would be included in proposed Sec. 303.21(a)(2)(ii) as follows:
chromosomal abnormalities, genetic or congenital disorders, severe
sensory impairments, inborn errors of metabolism, disorders reflecting
disturbance of the development of the nervous system, and disorders
secondary to exposure to toxic substances, including fetal alcohol
syndrome. With this change, Note 1 following current Sec. 303.16 would
be removed from the regulations. Note 2 following current Sec. 303.16
would also be removed as the examples of at-risk infants or toddlers
with disabilities would be incorporated into proposed Sec. 303.5, the
definition of at-risk infant or toddler.
Proposed Sec. 303.21(b) would be substantively the same as current
[[Page 26461]]
Sec. 303.16(b), and would cross-reference the definition of an at-risk
infant or toddler in proposed Sec. 303.5.
Proposed Sec. 303.21(c) would incorporate the language from
section 632(5)(B) of the Act that an infant or toddler with a
disability may include, at the State's discretion, children with
disabilities who are ages three and older who are eligible for services
under section 619 of the Act and who previously received Part C
services.
Proposed Sec. 303.22 (Lead agency) would be added to make clear
that the lead agency is the State agency designated by the Governor to
administer Part C of the Act in the State and would incorporate
language from section 635(a)(10) of the Act.
Proposed Sec. 303.23 (Local educational agency or LEA) would be
added to incorporate the definitions of LEA and educational service
agency under sections 602(19) and 602(5) of the Act, respectively. We
would include these definitions because these terms are relevant to the
State option to make early intervention services available to children
ages three and older under sections 632 and 635(c) of the Act. In
addition we would incorporate the applicable 1997 definition of the
intermediate educational unit (IEU) in order to create a freestanding
document and assist those lead agencies that are not SEAs.
Proposed Sec. 303.24 (Multidisciplinary) would modify the
definition in current Sec. 303.17 to clarify that the term
multidisciplinary is used with respect to an evaluation and assessment
of a child, an IFSP team, or IFSP development, and means the
involvement of two or more individuals from separate disciplines or
professions, or one individual who is qualified in more than one
discipline or profession.
Proposed Sec. 303.25(a)(1) (Native language) would incorporate the
definition of native language from section 602(20) of the Act and
current Sec. 303.401(b). Proposed Sec. 303.25(a)(2) would provide
that in all direct contact with the child, the native language is that
normally used by the child in the home or the learning environment.
This addition would be consistent with the definition of this term in
34 CFR 300.29 of the Part B regulations (71 FR 46759-46760) and is
appropriate here because it would clarify the language an EIS provider
must use when providing services to the child. Proposed Sec. 303.25(b)
would reflect the requirements in current Sec. 303.403(c)(3) and would
clarify that, when used in connection with an individual with deafness
or blindness or with no written language, ``native language'' refers to
the mode of communication that is normally used by that individual,
such as sign language, Braille, or oral communication.
Proposed Sec. 303.26 (Natural environments) would remain
substantively unchanged from current Sec. 303.18, and would add that
the natural environment may include the home, and must be consistent
with proposed Sec. 303.126.
Proposed Sec. 303.27 (Parent) would modify the regulatory
definition of that term in current Sec. 303.19 to reflect the revised
statutory definition of parent in section 602(23) of the Act, and to be
consistent with the definition of parent in 34 CFR 300.30 of the Part B
regulations (71 FR 46760). Proposed Sec. 303.27(a)(2) would recognize
that State law may prohibit a foster parent from being considered a
parent, but also would recognize that similar restrictions may exist in
State regulations or in contractual agreements between a State or local
entity and the foster parent, and should be accorded similar deference.
Proposed Sec. 303.27(b)(1) would provide that the biological or
adoptive parent would be presumed to be the parent for purposes of the
regulations. If the biological or adoptive parent were attempting to
act as the parent under proposed Sec. 303.27 and more than one person
is qualified to act as a parent under Part C of the Act, the biological
or adoptive parent would be presumed to be the parent unless that
person does not have legal authority to make decisions for the infant
or toddler regarding early intervention services, or there is a
judicial order or decree specifying some other person to act as the
parent under Part C of the Act. Proposed Sec. 303.27(b)(2) would
provide that if a judicial order or decree specifies a person or
persons to act as the parent, that person would be the parent under
Part C of the Act. Proposed Sec. 303.27(b)(2), however, would exclude
an agency involved in providing early intervention services or care of
the infant or toddler from serving as a parent, consistent with the
statutory prohibition that applies to surrogate parents in section
639(a)(5) of the Act. The provisions in proposed Sec. 303.27(b) are
intended to assist EIS providers and public agencies in identifying the
appropriate person to serve as the parent under Part C of the Act,
especially in those difficult situations in which more than one
caretaker is available to provide consent for evaluation or the
provision of early intervention services and to make other decisions
under Part C of the Act.
Proposed Sec. 303.28 (Parent training and information center)
would provide that a parent training and information center means a
center assisted under section 671 or 672 of the Act, in accordance with
the statutory definition in section 602(25) of the Act.
Proposed Sec. 303.29 (Personally identifiable) would remain
substantively unchanged from current Sec. 303.401(c).
Proposed Sec. 303.30 (Public agency) would remain substantively
unchanged from current Sec. 303.21.
Proposed Sec. 303.31 (Qualified personnel) would remain
substantively unchanged from the definition of qualified in current
Sec. 303.22. In addition, the note following current Sec. 303.22
would be removed because the content of that note would be addressed in
proposed Sec. 303.13(c) regarding the types of qualified personnel who
provide early intervention services and proposed Sec. 303.119
regarding the requirement that statewide systems have policies and
procedures in place relating to personnel standards.
Proposed Sec. 303.32 (Secretary) would incorporate the definition
of Secretary from section 602(28) of the Act.
Proposed Sec. 303.33 (Service coordination services (case
management)) would replace current Sec. 303.23. Proposed Sec.
303.33(a) would provide a definition of service coordination services
and explain that these services include, consistent with current Sec.
303.23(a), coordinating all services required under Part C of the Act
across agency lines (i.e., coordinating Part C services provided by
agencies other than the lead agency). Proposed Sec. 303.33(a)(2) would
clarify that: service coordinators must assist parents of infants and
toddlers with disabilities in gaining access to and coordinating the
provision of early intervention services and coordinating other
services not provided under Part C of the Act that are needed by the
infant or toddler with a disability and that child's family and that
are identified on the IFSP in accordance with proposed Sec.
303.344(e). Proposed Sec. 303.33 would not require service
coordinators to be responsible for identifying funding sources for
those services not covered under Part C of the Act and identified as
``other services'' on the IFSP under proposed Sec. 303.344(e).
Proposed Sec. 303.33(a)(3) and (b) would continue to reflect that
service coordinators are responsible for serving as the single point of
contact for carrying out the responsibilities under proposed Sec.
303.33(b). Proposed Sec. 303.33(b) would require service coordinators
to be responsible for coordinating the performance of evaluations and
assessments, facilitating
[[Page 26462]]
and participating in the development of IFSPs, assisting families in
identifying available Part C services, coordinating and monitoring the
delivery of early intervention services required under Part C of the
Act, informing families of their rights and procedural safeguards and
related resources, coordinating the funding sources for early
intervention services, and facilitating the development of a transition
plan from the Part C program to other services. Proposed Sec.
303.33(c) would incorporate the language from Note 2 following current
Sec. 303.23 to clarify that the lead agency's or an EIS provider's use
of the term service coordination or service coordination services does
not preclude characterization of the services as case management or any
other service that is covered by another payor (including Medicaid),
for purposes of claims in compliance with the requirements of proposed
Sec. 303.510 regarding the payor of last resort. With this
clarification, Note 2 following current Sec. 303.23 would be removed.
Current Sec. 303.23(c) (Employment and assignment of service
coordinators) and (d) (Qualification of service coordinators) would not
be included in proposed Sec. 303.33 because, under proposed Sec.
303.13(a)(7), service coordination services must be provided by
qualified personnel as that term is defined in proposed Sec. 303.31.
Under the definition of qualified personnel, personnel are qualified if
they have met State approved or recognized certification, licensing,
registration, or other comparable requirements that apply to the area
in which the individuals are providing early intervention services.
Some States, for example, have developed qualified personnel criteria
under Part C of the Act for an ``early interventionist'' who is able to
provide service coordination services and other Part C services.
Consistent with the content of Note 1 following current Sec. 303.23,
and as addressed elsewhere in this preamble in the discussion related
to proposed Sec. 303.119, the requirements for a service coordination
system that includes the qualifications, employment, and assignment of
service coordinators is best left to the States to decide. With this
clarification Note 1 would be removed.
Proposed Sec. 303.34 (State) would remain substantively unchanged
from current Sec. 303.24, and would reflect the definition of this
term in section 602(32) of the Act.
Proposed Sec. 303.35 (State educational agency or SEA) would be
defined to distinguish it clearly as the State agency that receives
funds under Part B of the Act and that is responsible for administering
Part B of the Act (in contrast to the lead agency which may or may not
be the SEA and which is responsible for implementing Part C of the Act
in the State).
Proposed Sec. 303.36 (Ward of the State) would be added to these
regulations to reflect the definition in section 602(36) of the Act.
Proposed Sec. 303.36(b), regarding an exception to the ward of the
State, would be added to clarify that a ward of the State does not
include a foster child who has a foster parent who meets the definition
of a parent in proposed Sec. 303.27.
Current Sec. 303.20, which provides the definition of policies,
would be removed because the requirements for State policies are
contained in the State application requirements for a grant under Part
C of the Act and proposed Sec. Sec. 303.201 through 303.212.
Subpart B--State Eligibility for a Grant and Requirements for a
Statewide System
Proposed subpart B would incorporate the Secretary's general
authority to make grants to States under section 633 of the Act, the
State eligibility provisions under section 634 of the Act, and the
requirements for a statewide system under section 635 of the Act.
Section 633 of the Act gives the Secretary the authority to make grants
to States. In order to be eligible for a grant under this subpart,
section 634(1) of the Act requires a State to provide assurances that
it has adopted a policy that appropriate early intervention services
are available to all infants and toddlers with disabilities in the
State and their families. Section 634 of the Act requires a State to
provide assurances that its statewide system includes the components
listed in section 635 of the Act; section 634 of the Act no longer
requires States to submit to the Department policies and procedures
that demonstrate each of the components. Other specific State
application requirements (policies, procedures, certifications,
descriptions, and assurances) in section 637 of the Act would be
incorporated into subpart C of these regulations.
General Authority and Eligibility
Proposed Sec. 303.100 would incorporate the language of section
633 of the Act, providing for the Secretary's authority to make grants
to States to maintain and implement a statewide system to provide early
intervention services for infants and toddlers with disabilities and
their families.
Proposed Sec. 303.101 would identify the conditions that States
must meet to be eligible for a grant under Part C of the Act and would
replace current Sec. Sec. 303.100 and 303.140. Proposed Sec.
303.101(a)(1) would incorporate the language from section 634 of the
Act, which requires each State receiving funds under Part C of the Act
to assure that the State has adopted a policy that early intervention
services are available to all infants and toddlers with disabilities in
the State and their families, including Indian infants and toddlers on
reservations in the State, and infants and toddlers who are homeless
and their families, and infant and toddlers who are wards of the State.
Proposed Sec. 303.101(a)(2) would modify current Sec. 303.100(a)(2)
and require each State to assure that the State has in effect a
statewide system of early intervention services that meets the
requirements of section 635 of the Act, including, at a minimum, the
components required in proposed Sec. Sec. 303.111 through 303.126.
The requirement in current Sec. 303.100(b) that States have
policies or procedures on file with the Secretary would be removed
consistent with section 634 of the Act, which requires that States
submit assurances regarding the statewide system requirements under
section 635 of the Act. Consistent with this approach, all other
provisions in current subpart B that require the policies and
procedures to be on file with the Secretary would be removed.
Proposed Sec. 303.101(b) would identify other information and
assurances that States would be required to provide to the Secretary,
consistent with section 637 of the Act, to demonstrate that the State
meets the State application requirements in proposed Sec. Sec. 303.200
through 303.212.
Current Sec. 303.101, regarding how the Secretary disapproves a
State's application, would be substantively included in proposed Sec.
303.230.
Current Sec. Sec. 303.110 and 303.111, regarding requirements and
timelines for public participation and notice of public hearings and
opportunity to comment, respectively, would be substantively included
in proposed Sec. 303.208.
Current Sec. 303.112, regarding public hearings, would be
substantively included in proposed Sec. 303.208(a)(1).
Current Sec. 303.113, regarding the review of public comments by
the lead agency prior to adopting the State's application, would be
removed because it is not specifically addressed in section 637 of the
Act.
Current Sec. 303.120(b) and (c) would be removed because the
application requirements under Part C of the Act, including the
assurances that meet the
[[Page 26463]]
requirements in section 637(b) of the Act, are referenced in proposed
Sec. 303.101(b). The assurance requirements in section 637(b) of the
Act would be reflected in proposed Sec. Sec. 303.221 through 303.227.
State Conformity With Part C of the Act and Abrogation of State
Sovereign Immunity
Proposed Sec. 303.102, consistent with section 608(a)(1) of the
Act, would require each State that receives funds under Part C of the
Act to ensure that any State rules, regulations, and policies relating
to this part conform to the purposes and requirements of the part.
Proposed Sec. 303.103 would incorporate the provisions of section
604 of the Act regarding abrogation of State immunity. Proposed Sec.
303.103(a) would provide that a State is not immune under the 11th
amendment of the Constitution of the United States from suit in Federal
court for a violation of Part C of the Act. This is the longstanding
position of the Department and is consistent with section 604 of the
Act and Federal Circuit Courts' decisions interpreting this language.
See, e.g., Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir.,
2005), cert. denied, 126 S.Ct. 416 (2005); M.A. ex rel E.S. v State-
Operated Sch. Dist., 344 F.3d 335 (3rd Cir. 2003); Little Rock Sch.
Dist. v. Mauney, 183 F.3d 816 (8th Cir. 1999); Marie O. v. Edgar, 131
F.3d 610 (7th Cir. 1997).
Proposed Sec. 303.103(b) would incorporate the requirements of
section 604(b) of the Act regarding remedies in a suit against a State
for a violation.
Proposed Sec. 303.103(c), which incorporates section 604(c) of the
Act, would provide that proposed Sec. 303.103(a) and (b) applies to
violations that occur in whole or in part after October 1990.
Equipment and Construction
Proposed Sec. 303.104 would incorporate language from section 605
of the Act, relating to the acquisition of equipment, construction or
alteration of facilities. This section would provide guidance to lead
agencies regarding the use of funds for facility construction impacted
by Part C of the Act.
Positive Efforts To Employ and Advance Qualified Individuals With
Disabilities
We are proposing to add new section Sec. 303.105 to reflect the
provisions in section 606 of the Act, which require the Secretary to
ensure that each grant recipient under IDEA make positive efforts to
employ and advance in employment, qualified individuals with
disabilities in programs assisted under IDEA.
Minimum Components of a Statewide System
Proposed Sec. 303.110 would be substantively the same as current
Sec. 303.160, which refers to the minimum components of a statewide
system, and would specifically reference the requirements in proposed
Sec. Sec. 303.111 through 303.126, which align with section 635(a)(1)
through (16) of the Act.
Proposed Sec. 303.111 would align with section 635(a)(1) of the
Act and would replace current Sec. Sec. 303.161 and 303.300. Proposed
Sec. 303.111 would require the statewide system to include a rigorous
definition of developmental delay in order to appropriately identify
infants and toddlers with disabilities who need early intervention
services, consistent with section 635(a)(1) of the Act and proposed
Sec. Sec. 303.10 and 303.203(c).
Proposed Sec. 303.111(a) would generally retain current Sec.
303.300(a)(1) and would require the State to include in its definition
of developmental delay the evaluation and assessment procedures that
would be used to measure an infant's or toddler's development.
References to informed clinical opinion as one of the procedures used
to measure an infant's or toddler's development in current Sec.
303.300(a)(1) would be moved to proposed Sec. 303.320(b)(2).
Proposed Sec. 303.111(b) would generally retain the requirements
of current Sec. 303.300(a)(2) and would require the State to describe
the level of developmental delay in functioning or other comparable
criteria that could constitute a developmental delay.
Current Sec. 303.300(c) requires States that serve at-risk infants
and toddlers to describe the criteria and procedures used to identify
those infants and toddlers. Current Sec. 303.300(c) would be removed
because proposed Sec. 303.320(b)(2) would clarify that qualified
personnel must use their informed clinical opinion to evaluate a
child's present level of functioning in each of the developmental areas
identified in proposed Sec. 303.21(a)(1) and that informed clinical
opinion may be used by qualified personnel to establish a child's
eligibility for services under Part C of the Act even when other
instruments do not establish eligibility.
The note following current Sec. 303.300(c), regarding the required
use of informed clinical opinion to determine an infant's or toddler's
eligibility for services, would be moved to proposed Sec. 303.320
regarding evaluation requirements and is addressed in the discussion of
subpart D of these regulations.
Proposed Sec. 303.112 would be added to incorporate the language
from section 635(a)(2) of the Act and would require each statewide
system to have a State policy in effect that ensures that early
intervention services are based on scientifically based research, to
the extent practicable, and are available to all infants and toddlers
with disabilities and their families, including Indian infants and
toddlers with disabilities and their families residing on a reservation
geographically located in the State, and infants and toddlers with
disabilities and their families who are homeless.
Proposed Sec. 303.113, which would align with section 635(a)(3) of
the Act, would replace current Sec. 303.166, and would require each
statewide system to ensure a timely, comprehensive, multidisciplinary
evaluation of each infant or toddler with a disability in the State,
and a family-directed identification of the needs of each infant's or
toddler's family to assist appropriately in the development of the
infant or toddler. Proposed Sec. 303.113(b) would cross-reference the
provisions in proposed Sec. 303.320. These cross-references are
necessary because the specific requirements for evaluations would be
included in proposed Sec. 303.320.
Proposed Sec. 303.114 would generally retain the provisions in
current Sec. 303.167(a) and (b) and would require each statewide
system to develop an IFSP for each infant or toddler with a disability
in the State, consistent with section 635(a)(4) of the Act. Current
Sec. 303.167(c) would be removed because the requirements regarding
IFSPs and natural environments would be included in proposed Sec. Sec.
303.13(a)(8), 303.26, and 303.344(d)(1)(ii).
Proposed Sec. 303.115, regarding a comprehensive child find
system, would align with section 635(a)(5) of the Act and would replace
current Sec. 303.165. The provisions in current Sec. 303.321
regarding a comprehensive child find system would be incorporated in
proposed Sec. Sec. 303.301 through 303.303, which would be cross-
referenced in proposed Sec. 303.115. Proposed Sec. 303.115 would
require each statewide system to have a comprehensive child find system
that meets the requirements in proposed Sec. Sec. 303.301 through
303.303; these requirements include that a State's comprehensive child
find system be consistent with Part B of the Act and that it ensures
rigorous standards to identify infants and toddlers with disabilities
for services under Part C of the Act that will reduce the need for
future services.
[[Page 26464]]
Proposed Sec. 303.116, regarding public awareness, would align
with section 635(a)(6) of the Act and would replace current Sec.
303.164. Proposed Sec. 303.116, consistent with section 635(a)(6) of
the Act, would set forth the requirements for the statewide system's
public awareness program, which would focus on early identification of
infants and toddlers with disabilities and provide information to
parents of infants and toddlers through primary referral sources.
Proposed Sec. 303.117, regarding the requirements for a central
directory, would align with section 635(a)(7) of the Act and would
combine the requirements of current Sec. Sec. 303.162 and 303.301(a).
The provisions in current Sec. 303.301(c) requiring the central
directory to be up-to-date and accessible to the general public
generally would be included in the introductory text of proposed Sec.
303.117. Proposed Sec. 303.117, however, would also clarify that the
lead agency must ensure that the central directory is accessible
through the lead agency's Web site and other appropriate means as the
requirement in current Sec. 303.301(d) that the lead agency arrange
for copies of the directory to be available in each geographic region
of the State is no longer necessary, as the vast majority of States
maintain the directory on their Web sites. Current Sec. 303.301(b),
which includes the details of the content of the central directory and
current Sec. 303.301(d), which includes the locations and manners of
accessibility, would be removed. Most States now maintain this
information on their Web site and can easily update it more quickly
than is required under current Sec. 303.301.
The note following current Sec. 303.301, which gives examples of
appropriate groups that provide assistance to infants and toddlers with
disabilities and families, would be removed as unnecessary. Proposed
Sec. 303.117 would include language regarding appropriate groups that
would provide assistance to infants and toddlers with disabilities and
their families, including public and private early intervention
services, resources and experts available in the State, and parent
support and training and information centers such as those funded under
the Act.
Proposed Sec. 303.118, regarding the comprehensive system of
personnel development (CSPD), would replace current Sec. Sec. 303.168
and 303.360 to parallel the requirements and order of section 635(a)(8)
of the Act. The introductory paragraph of proposed Sec. 303.118 would
combine the provisions in current Sec. 303.360(b)(3) and (4), and
would require each statewide system to include a CSPD that addresses
the training of paraprofessionals and primary referral sources with
respect to the basic components of early intervention services in the
State.
Proposed Sec. 303.118(a) would replace current Sec.
303.360(c)(1), (2), and (4), and would, consistent with section
635(a)(8)(A) of the Act, list the training that now must be included in
the CSPD. Proposed Sec. 303.118(a)(1) would retain the language in
current Sec. 303.360(c)(1) regarding training on innovative strategies
to recruit and retain EIS providers. Proposed Sec. 303.118(a)(2) would
retain the language in current Sec. 303.360(c)(2) regarding promoting
the preparation of EIS providers who are fully and appropriately
qualified. Under current Sec. 303.360(c)(1) and (2), including this
training in the CSPD was permissive. Consistent with section
635(a)(8)(A) of the Act, however, the training in proposed Sec.
303.118(a)(1) and (2) would be required to be included in the CSPD.
Proposed Sec. 303.118(a)(3), regarding training personnel to
coordinate transition services, would generally retain the language in
current Sec. 303.360(c)(4) and would reference a preschool program
under Part B of the Act, Head Start, Early Head Start, and an
elementary school under Part B of the Act as programs to which children
receiving services under Part C of the Act may transition to,
consistent with sections 635(a)(8)(A)(iii) and 637(a)(10) of the Act.
Consistent with sections 635(a)(8)(A) and (c) and 637(a)(10) of the
Act, including this training in the CSPD would now be mandatory.
Proposed Sec. 303.118(b)(1) would retain current Sec.
303.360(c)(3) and would allow (but not specifically require, consistent
with section 635(a)(8)(B)(i) of the Act) training for personnel to work
in rural and inner-city areas. Proposed Sec. 303.118(b)(2) would
replace current Sec. 303.360(b)(4)(ii) and would allow training of
personnel in the emotional and social development of infants and
toddlers, consistent with section 635(a)(8)(B)(ii) of the Act. Proposed
Sec. 303.118(b)(3) would replace current Sec. 303.360(b)(4)(iii) and
would clarify that States may train personnel to support families to
participate fully in the development and implementation of their
child's IFSP.
References in current Sec. 303.360(b)(3) and (c)(2) to training a
variety of personnel needed to meet the requirements of the
regulations, including the training of service coordinators, would be
removed as redundant. Proposed Sec. 303.119(a) requires States to have
policies and procedures to ensure that personnel necessary to carry out
the purposes of this part are appropriately and adequately prepared and
trained.
Current Sec. 303.360(b)(1), regarding consistency with the CSPD
under Part B of the Act, would be removed because Part B of the Act was
revised to eliminate references to a CSPD. Current Sec. 303.360(b)(2),
requiring that preservice and inservice training be conducted on an
interdisciplinary basis, to the extent appropriate, would be removed
because whether to conduct preservice and inservice training that
includes an interdisciplinary methodology or other methodology, is a
decision best left to the States because each State determines the
qualifications needed for personnel providing services under Part C of
the Act.
Proposed Sec. 303.119, regarding personnel standards, would
combine current Sec. 303.169 and relevant provisions in current Sec.
303.361 to parallel the requirements of section 635(a)(9) of the Act.
Proposed Sec. 303.119(a) would substantively retain language from
current Sec. 303.361(b)(1) to clarify that each system must include
policies and procedures relating to the establishment and maintenance
of qualification standards to ensure that personnel are appropriately
and adequately trained.
Consistent with section 635(a) of the Act and current Sec.
303.361(b)(2), proposed Sec. 303.119(b) would require the
establishment and maintenance of qualification standards, to be
consistent with any State-approved or State-recognized certification,
licensing, registration, or other comparable requirements, and to apply
to the profession, discipline, or area in which personnel are providing
early intervention services.
Current Sec. 303.361(a), (c), (d), and (e) would be removed,
consistent with statutory changes that removed the requirement that
State's policies and procedures include the steps for retraining or
hiring personnel when the State's personnel standards are not based on
the State's requirements for these personnel.
Proposed Sec. 303.119(c), allowing the use of appropriately
trained and supervised paraprofessionals and assistants to assist in
the provision of early intervention services, would replace and
substantively be the same as current Sec. 303.361(f).
Proposed Sec. 303.119(d), which allows a State to adopt a policy
to hire the most qualified individuals available who are making
satisfactory progress toward completing applicable coursework necessary
to meet the State's personnel standards, would be the same as current
[[Page 26465]]
Sec. 303.361(g), except that the requirement that those persons work
to complete the necessary course work in three years would be removed
because of the removal of this three-year requirement from section
635(a)(9) of the Act.
The note following current Sec. 303.361 would be removed because
the first paragraph in the note addresses the requirement that
personnel standards be based on the State's highest standard, which was
removed from the Act. The second paragraph in the note following
current Sec. 303.361, regarding a State's ability to establish
standards, would be removed as unnecessary because the licensure and
other standards for occupational categories have always been subject to
State, not Federal, standards, and States have always had the
flexibility to establish standards higher than Federal standards in
this area.
Proposed Sec. 303.120, regarding supervision, monitoring, funding,
interagency coordination, and other lead agency responsibilities would
combine current Sec. Sec. 303.171, 303.500, and 303.501 to parallel
the organization and content of section 635(a)(10) of the Act.
The introductory paragraph in proposed Sec. 303.120 would
incorporate the requirement in section 635(a)(10) of the Act and
current Sec. 303.500 that each statewide system include a single line
of responsibility in a lead agency designated or established by the
Governor.
Proposed Sec. 303.120(a)(1) through (a)(2)(iv) would remain
substantively unchanged from current Sec. 303.501(a) and (b)(1)
through (b)(4), except that proposed Sec. 303.120(a)(2)(iv), regarding
the correction of noncompliance identified through monitoring, would
add that the correction must be made as soon as possible and in no case
later than one year after the lead agency's identification of the
noncompliance. We are proposing that the correction be made as soon as
possible and in no case later than one year after the lead agency's
identification of the noncompliance because, based on our monitoring
activities, we have determined that correction of noncompliance does
not always occur in a timely manner. Proposed Sec. 303.120(a)(2)(iv)
would align with proposed Sec. 303.700(e) to clarify expectations
regarding the timely correction of noncompliance. It is important to
correct noncompliance in a timely manner to ensure that infants and
toddlers with disabilities and their families receive appropriate early
intervention services. Correction of noncompliance means that the State
required the EIS program or EIS provider to revise any noncompliant
policies, procedures and/or practices and the State has verified
through follow-up review of data, other documentation and/or interviews
that the noncompliant policies, procedures and/or practices have been
revised and the noncompliance has been corrected. We believe that one
year is a reasonable amount of time for the State to verify the
correction of policies, procedures and/or practices.
Proposed Sec. 303.120(a)(2)(v), regarding the activities related
to monitoring agencies, would reference the monitoring and enforcement
requirements in proposed Sec. Sec. 303.700 through 303.707 that the
lead agency must meet in implementing the requirements of proposed
Sec. 303.120(a)(2)(i) through (iv).
Proposed Sec. Sec. 303.700 through 303.706 would align with 34 CFR
300.600 through 300.606 of the Part B regulations (71 FR 46800-46802).
Proposed Sec. 303.707 would reference the authority under GEPA for
monitoring and enforcement, including the imposition of special
conditions in 34 CFR Sec. 80.12. Proposed Sec. 303.708 would clarify
continued State flexibility to use other available authorities to
monitor and enforce the requirements of Part C of the Act.
Proposed Sec. 303.120(b), which would require the lead agency to
identify and coordinate all available resources for early intervention
services in the State, would incorporate the language in section
635(a)(10)(B) of the Act and would be the same as current Sec.
303.522(a)(1). Proposed Sec. 303.120(c) through (f) would reference
requirements in proposed subpart F regarding use of funds and would be
added to conform to section 635(a)(10)(C) through (F) of the Act.
Proposed Sec. 303.120(f) would indicate that in addition to formal
interagency agreements, there may be other written methods of
establishing financial responsibility consistent with proposed Sec.
303.511 because proposed Sec. 303.511(a)(3) would clarify that
appropriate written methods may be used for establishing financial
responsibility, as determined by the Governor of the State, or the
Governor's designee, and approved by the Secretary through the review
and approval of the State's application.
Proposed Sec. 303.121, regarding contracting or otherwise
arranging for services, would replace the requirements in current
Sec. Sec. 303.175 and 303.526, consistent with section 635(a)(11) of
the Act. Proposed Sec. 303.121 would require each statewide system to
include a policy for contracting or making other arrangements with
public or private providers for services. Proposed Sec. 303.121(a)
would incorporate the provision in current Sec. 303.526(a) regarding
the State policy including a requirement that all early intervention
services meet State standards and be consistent with Part C of the Act.
Proposed Sec. 303.121(b) would add a reference to the requirements
found in part 80 of the Education Department General Administrative
Regulations (EDGAR). This is not a new requirement because current
Sec. 303.5 already provides that EDGAR requirements, including part
80, apply to grant recipients under Part C of the Act. Current Sec.
303.526(b) and (c) would be removed as redundant because these
requirements are found in EDGAR provisions in 34 CFR part 80, and
compliance with 34 CFR part 80 would be required by proposed Sec.
303.121.
The note following current Sec. 303.526, regarding the option to
continue using public and private personnel who meet the requirements
of Part C of the Act as service providers, would be removed because
proposed Sec. 303.12 (the definition of EIS provider) would clarify
that States may use public or private entities or individuals to
provide early intervention services. The content of the note following
current Sec. 303.526 would not provide additional information or
clarity to proposed Sec. 303.12.
Proposed Sec. 303.122, regarding reimbursement procedures, would
incorporate language from section 635(a)(12) of the Act and would
remain substantively unchanged from current Sec. 303.528, with cross-
references updated.
Proposed Sec. 303.123, which would incorporate language from
section 635(a)(13) of the Act, would replace current Sec. 303.170 and
would require each statewide system to meet the procedural safeguard
requirements in subpart E of these proposed regulations.
Proposed Sec. 303.124, regarding data collection procedures, would
incorporate the requirements of section 635(a)(14) of the Act and would
adopt by reference the Part C data requirements in sections 616 and 618
of the Act that are reflected in proposed Sec. Sec. 303.700 through
303.702 and proposed Sec. Sec. 303.720 through 303.724. Proposed Sec.
303.124 would require States to adopt data systems for reporting the
data to the Secretary and would generally include the language in
current Sec. Sec. 303.176 and 303.540.
Consistent with the reporting requirements in sections 616 and 618
of the Act, proposed Sec. 303.124(a) would
[[Page 26466]]
include language indicating that the statewide system must compile and
report data that are timely and accurate to align with the reporting
requirements in Sec. Sec. 303.700 through 303.702 and 303.720 through
303.724. The references to timely and accurate reporting on State data
in proposed Sec. 303.124(a) are necessary for the Department to
implement section 616 of the Act. The requirements regarding
disproportionality in section 618(d) of the Act do not apply to Part C
of the Act because the findings in section 601(c)(12) of the Act make
clear that these provisions were enacted to reflect concerns under Part
B of the Act, not Part C of the Act.
Proposed Sec. 303.124(b) would require the data collection process
to include a description of the sampling methods, if used by the State
to collect data in accordance with proposed Sec. Sec. 303.701(c)(2)
and 303.722(b).
Proposed Sec. 303.125, regarding the Council, would incorporate
the language in section 635(a)(15) of the Act and current Sec. 303.141
and would require the statewide system to include a Council. This
section also would cross-reference subpart G of these proposed
regulations, which would contain the specific requirements for the
Council.
Proposed Sec. 303.126, regarding the provision of early
intervention services in natural environments to the maximum extent
appropriate, would align with section 635(a)(16) of the Act and would
generally remain substantively unchanged from current Sec. Sec.
303.12(b) and 303.344(d)(1)(ii).
Proposed Sec. 303.126(b) would add language from section
635(a)(16) of the Act requiring that, when early intervention cannot be
achieved satisfactorily in a natural environment, it must be provided
in a setting that is most appropriate, as determined by the parent and
the IFSP team. Proposed Sec. 303.126 would not change the longstanding
requirements regarding the provision of early intervention services in
an infant's or toddler's natural environment and would be read in
conjunction with proposed Sec. 303.344(d)(1)(ii)(B), which would
clarify that any justification for providing an early intervention
service in a setting other than the infant's or toddler's natural
environment must be based on the child's outcomes identified by the
IFSP team in the infant's or toddler's IFSP.
Subpart C--State Application and Assurances
Proposed subpart C would contain the specific State application
content requirements that are reflected in section 637 of the Act.
Proposed Sec. 303.200(a) would require each application to contain
the specific requirements in proposed Sec. Sec. 303.201 through
303.212, which would incorporate, respectively, the requirements in
section 637(a)(1) through (11) of the Act. Proposed Sec. 303.200(b)
would require each application to contain assurances that the State has
met the requirements under proposed Sec. Sec. 303.220 through 303.227,
which would incorporate, respectively, the assurance requirements in
section 637(b)(1) through (7) of the Act.
Application Requirements
Proposed Sec. 303.201 would require each application to include a
designation of the lead agency in the State responsible for the
administration of funds. The proposed regulation would be the same as
current Sec. 303.142, consistent with section 637(a)(1) of the Act.
Proposed Sec. 303.202 would require each application to include a
certification that the arrangements to establish financial
responsibility for the provision of services under Part C of the Act
among appropriate public agencies under proposed Sec. 303.511 and the
lead agency's contracts with EIS providers regarding financial
responsibility for the provision of Part C services meet the
requirements in proposed Sec. Sec. 303.500 through 303.521 and are
current as of the date of submission of the certification. Proposed
Sec. 303.202 would replace current Sec. 303.143, consistent with
section 637(a)(2) of the Act. Proposed Sec. 303.202 cross-references
proposed Sec. Sec. 303.500 through 303.521 and requires the
arrangements to establish financial responsibility for the provision of
Part C services to be current as of the date of the certification,
consistent with a change to section 637(a)(2) of the Act.
Proposed Sec. 303.203 would require each application to include:
(a) A description of the services to be provided; (b) the State's
policies on funding sources (including any system of payments); and (c)
the State's rigorous definition of developmental delay, as required
under proposed Sec. Sec. 303.10 and 303.111 and section 637(a)(3)(A)
of the Act. These three elements are key variables in State Part C
systems and the Department needs this information in the application to
understand each State's Part C system and interpret data from each
State under sections 616, 618, and 642 of the Act.
Proposed Sec. 303.204, which aligns with section 637(a)(4) of the
Act, would require each State that provides services to at-risk infants
and toddlers with disabilities to include the State's definition of at-
risk infants and toddlers with disabilities in its State application.
This information is necessary to appropriately interpret child find and
other data required to be reported by States under sections 616, 618,
and 642 of the Act. Proposed Sec. 303.204(b) would require each
application to include, consistent with section 637(a)(4) of the Act, a
description of the early intervention services to be provided to at-
risk infants and toddlers with disabilities if the State elects to
serve such children.
Proposed Sec. 303.205(a) would be substantively the same as
current Sec. 303.145(a) and would continue to require each application
to include a description of the use of funds, presented separately for
the lead agency and the Council.
Proposed Sec. 303.205(b) would require lead agencies, other than
SEAs, to identify the total amount the lead agency will retain for
State administration. Additionally, proposed Sec. 303.205(b) would
require those lead agencies, other than SEAs, to include the total
number of full time equivalent administrative positions and the total
salaries, including benefits, for these positions, rather than
position-specific descriptions and detailed itemized salary information
as in current Sec. 303.145(b). SEAs are excluded from this requirement
because the Department is the cognizant Federal agency for SEAs for
purposes of determining the State's restricted indirect cost rate under
Parts B and C of IDEA. However for lead agencies that are not SEAs, the
Department often does not obtain any other information about the lead
agency's administrative expenses. This proposed change to report on
aggregated administrative expenses would reduce the burden on States
when reporting costs, positions, and salaries for State administration.
Proposed Sec. 303.205(c) would generally be the same as current
Sec. 303.145(c) and would require each application to include a
description of each major activity and the funds to be spent on each
activity, consistent with proposed Sec. 303.501. Proposed Sec.
303.205(d) would generally be the same as current Sec. 303.145(d)(1)
and (2)(ii), with updated cross-references, and would require each
State application to include a description of any direct services the
State expects to provide using Federal Part C funds and the approximate
amount of funds to be used for the provision of each direct service.
[[Page 26467]]
Proposed Sec. 303.205(e) would be the same as current Sec.
303.145(f) and would require the application to include information on
other agencies expected to receive funds under this part. This
information is required in the application because of interagency
funding provisions and the interagency coordination provisions in
sections 635(a)(10)(B) and (F), and 637(a)(3) and (5) of the Act.
Proposed Sec. 303.206 would be added to align with section
637(a)(6) of the Act. Proposed Sec. 303.206 would require each
application to include the State's policies and procedures that require
the referral for early intervention services of a child under the age
of three who is involved in a substantiated case of child abuse or
neglect or is identified as affected by illegal substance abuse, or
withdrawal symptoms resulting from prenatal drug exposure, consistent
with proposed Sec. 303.302. This requirement has applied to State
agencies receiving funds under the Child Abuse Prevention and Treatment
Act (CAPTA) in 42 U.S.C. 5106a since June 2003. A comparable
requirement was added to section 637(a)(6) of the Act for Part C lead
agencies, effective July 1, 2005.
Proposed Sec. 303.207, which would align with section 637(a)(7) of
the Act, would require that each application include a description of
the procedure used to ensure that resources are available for all
geographic areas within the State and would be substantively the same
as current Sec. 303.147.
Proposed Sec. 303.208 would incorporate language from section
637(a)(8) of the Act and would combine requirements in current
Sec. Sec. 303.110, 303.112, 303.113(b), and 303.146. Proposed Sec.
303.208(a)(1) would generally be the same as current Sec. 303.110 and
would require public hearings, adequate notice of hearings, and an
opportunity for comment to the general public, including individuals
with disabilities and parents of infants and toddlers with
disabilities, prior to the State's adoption of any new or revised
policy or procedure under Part C of the Act.
Proposed Sec. 303.208(b) would clarify that policies, procedures,
and methods that are subject to the public participation requirements
in proposed Sec. 303.208 and are required to be submitted to the
Secretary under subparts B and C of these proposed regulations must be
approved by the Secretary prior to implementation.
The remaining specific requirements in current Sec. Sec. 303.111
through 303.113 would be eliminated because States are required to
comply with the public participation requirements of proposed Sec.
303.208(a) and GEPA and obtain approval by the Secretary for specific
application requirements that are subject to the public participation
requirements in proposed Sec. 303.208. These requirements provide
sufficient opportunities for public comment.
Proposed Sec. 303.209, regarding the transition of children from
services under Part C of the Act to preschool and other programs, would
incorporate language from section 637(a)(9) of the Act, and would be
similar to current Sec. 303.148. The note following current Sec.
303.148, regarding matters that should be considered in developing
policies and procedures to ensure a smooth transition of children from
one program to the other, would be removed because it is covered by
proposed Sec. 303.209 and section 637(a)(9) of the Act, which identify
the specific early childhood transition requirements.
Proposed Sec. 303.209(a)(1) would require each State application
to include a description of the policies and procedures the State will
use to ensure a smooth transition for toddlers with disabilities
leaving the early intervention program to attend preschool, school, or
other appropriate services, or exit the program, and their families.
Proposed Sec. 303.209(a)(1) would add language to ensure a smooth
transition from the early intervention program to preschool, school, or
other appropriate services for toddlers receiving services as a result
of the State's election to make available early intervention services
to children with disabilities ages three and older in accordance with
proposed Sec. 303.211.
Proposed Sec. 303.209(a)(2) would add language requiring States to
describe how they would meet each of the requirements related to
toddlers transitioning from services under Part C of the Act to
preschool and other programs in proposed Sec. 303.209(b) through (d).
Proposed Sec. 303.209(a)(3)(i) would revise the language in
current Sec. 303.148(c) to require all States (not just those in which
the SEA is not the lead agency) to establish an interagency or intra-
agency agreement between the programs under Part C and Part B of the
Act.
Proposed Sec. 303.209(a)(3)(ii) would clarify that the agreement
must contain provisions for how the lead agency and the SEA will meet
the requirements of Part C of the Act in proposed Sec. 303.209(b)
through (d), regarding LEA notification and transition conferences and
plans. In addition, the agreement must contain provisions for how the
lead agency and the SEA will meet the requirements in proposed Sec.
303.344(h), regarding IFSP content and transition steps and services,
and the following Part B regulations: 34 CFR 300.124 (Transition of
children from the Part C program to preschool programs) (71 FR 46766),
34 CFR 300.321(f) (Initial IEP Team meeting for child under Part C) (71
FR 46788), and 34 CFR 300.323(b) (IEP or IFSP for children aged three
through five) (71 FR 46789).
Proposed Sec. 303.209(a)(3)(ii) would also require a State to have
an interagency agreement to ensure a seamless transition between
services under Part C of the Act to services under Part B of the Act.
Proposed Sec. 303.209(a)(4) would require that the State
application must include any policy adopted by the State under proposed
Sec. 303.401(e).
Proposed Sec. 303.209(b)(1) would include the requirement in
current Sec. 303.148(a) that each application include a description of
how families will be included in the transition plan.
Proposed Sec. 303.209(b)(2) would be similar to current Sec.
303.148(b)(1) but would clarify, consistent with section
637(a)(9)(A)(ii)(II) of the Act, the timeline applicable to transition
requirements. Proposed Sec. 303.209(b)(2)(i) would require that each
State include in its application a description of how the lead agency
will notify, at least nine months before the toddler's third birthday,
the LEA for the area in which the toddler resides--or, if appropriate,
the SEA--that the toddler on his or her third birthday will reach the
age of eligibility for preschool or school services under Part B of the
Act.
Proposed Sec. 303.209(b)(2)(ii) would also clarify that, if a
toddler is referred for early intervention services under Part C of the
Act within the nine-month period before the toddler's third birthday,
the lead agency, as soon as possible after determining the child's
eligibility, will notify the LEA for the area in which the toddler
resides--or, if appropriate, the SEA--that the toddler on his or her
third birthday will reach the age of eligibility for preschool or
school services under Part B of the Act. Proposed Sec. 303.209(b)(3)
would clarify that if a State adopts a policy under proposed Sec.
303.401(e), the lead agency's notification obligations under proposed
Sec. 303.209(b)(2)(i) and (ii) must be consistent with the policy.
Proposed Sec. 303.401(e) are discussed in subpart E of this preamble.
Proposed Sec. 303.209(c) would retain the requirement in current
Sec. 303.148(b)(2)(i) that the State lead agency convene, with the
approval of the family, a conference among the lead agency, the family,
and the LEA to discuss any services under Part B of the
[[Page 26468]]
Act that the toddler with a disability may receive.
Proposed Sec. 303.209(c)(1), similar to current Sec.
303.148(b)(2)(i) would require that, for a toddler with a disability
who is potentially eligible under Part B of the Act, the transition
conference is to be convened not fewer than 90 days before the
toddler's third birthday. Current Sec. 303.148(b)(2)(i) allows the
conference, at the discretion of the parties, to be held up to six
months before the child is eligible for preschool services. Proposed
Sec. 303.209(c)(1) would change this time period to not more than nine
months before the toddler's third birthday, consistent with changes in
section 637(a)(9) of the Act.
Proposed Sec. 303.209(c)(2) would substantively be the same as
current Sec. 303.148(b)(2)(ii) and would require the lead agency, for
the toddler with a disability who may not be eligible for services
under Part B of the Act, to make reasonable efforts to convene a
conference with the lead agency, the family, and providers of other
appropriate services to discuss services the toddler may receive.
Proposed Sec. 303.209(d)(1) would substantively include the
provisions in current Sec. 303.148(b)(3) and would require a review of
the toddler with a disability's program options for the period from the
toddler's third birthday through the remainder of the school year.
Proposed Sec. 303.209(d)(2) would require the lead agency to
establish a transition plan, as in current Sec. 303.148(b)(4).
Proposed Sec. 303.209(d)(2) would also clarify that the transition
plan be established in the IFSP not fewer than 90 days (and at the
discretion of all parties, not more than nine months) before the
toddler's third birthday to align with the LEA notification and
transition conference timelines.
Proposed Sec. 303.209(d)(3) would add a requirement that the
transition plan include steps for the toddler with a disability and his
or her family to exit from the program, consistent with section
637(a)(9) of the Act, and also specify that the transition plan must
include any transition services needed, consistent with section
636(a)(3) of the Act.
Proposed Sec. 303.210 would be added to require each application
to describe State efforts to promote collaboration among Early Head
Start programs, early education and child care programs, and early
intervention services, consistent with section 637(a)(10) of the Act
and would also reference Head Start in the list of early education
programs.
Proposed Sec. 303.211 would incorporate the language in section
635(c) of the Act providing States the option to make early
intervention services available to children beginning at three years of
age until the children enter, or are eligible under State law to enter,
kindergarten or elementary school. Proposed Sec. 303.211(a)(1) would
allow a State to elect to include in its Part C application, a State
policy developed jointly by the lead agency and the SEA, to make early
intervention services available to certain children with disabilities.
If a State elects to include such a policy, children who are eligible
for services under section 619 of the Act, and who were previously
receiving early intervention services under Part C of the Act, would
continue to receive early intervention services, if their parents
choose to continue those services.
Proposed Sec. 303.211(a)(2) would clarify that States may choose
to serve a subset of children between age three and the age at which
the children enter, or are eligible to enter, kindergarten or
elementary school. This provision would take into consideration States
that have preschool programs for many or all children starting at age
four, and would give those States the flexibility to provide early
intervention services until the beginning of the school year following
the child's third, fourth or fifth birthday. Although proposed Sec.
303.211(a)(2) would allow States to serve a subset of children between
age three and the age at which children enter, or are eligible to
enter, kindergarten or elementary school, the option would not extend
to serving only a specific disability group.
Proposed Sec. 303.211(b)(1) would require States that choose to
provide early intervention services to children under this proposed
section to ensure, consistent with section 635(c)(2)(A)(i) and (ii) of
the Act, that the parents of children with disabilities served under
this option would be provided with an annual notice that includes: a
description of the rights of the parents to elect to receive early
intervention services under Part C of the Act or preschool services
under Part B of the Act; an explanation of the differences between
early intervention services provided under Part C of the Act and
preschool services provided under Part B of the Act, including the
types of services and the locations at which the services are provided;
the procedural safeguards that apply; and possible costs, if any, to
parents of infants or toddlers with disabilities receiving early
intervention services. Proposed Sec. 303.211(b)(2) would incorporate
the requirement in section 635(c)(2)(B) of the Act that early
intervention services provided to children with disabilities under this
proposed section include an educational component that promotes school
readiness and incorporates preliteracy, language, and numeracy skills.
Proposed Sec. 303.211(b)(3) would incorporate section 635(c)(2)(C)
of the Act and would require the statewide system to ensure that the
State policy would not affect the right of any child to receive FAPE
under Part B of the Act instead of early intervention services under
Part C of the Act.
Proposed Sec. 303.211(b)(4) would require, consistent with section
635(c)(2)(D) of the Act, that all early intervention services outlined
in the child's IFSP be continued while any eligibility determination is
being made for services under proposed Sec. 303.211, and clarify that
this provision is subject to the pendency provision in proposed Sec.
303.430(e).
Proposed Sec. 303.211(b)(5) would incorporate the requirement in
section 635(c)(2)(E) of the Act that the State obtain informed consent
from the parents of any child to receive early intervention services,
where practicable, before the child reaches three years of age.
Proposed Sec. 303.211(b)(6) would provide, consistent with section
635(c)(2)(F) of the Act, that the transition timeline requirements in
proposed Sec. 303.209(c)(1) and (d)(2) regarding the transition
conference and plan do not apply with respect to a child who is
receiving early intervention services under proposed Sec. 303.211
until not fewer than 90 days--and, at the discretion of the parties to
the conference, not more than nine months--before the time the child is
expected to no longer receive early intervention services. The
transition conference and plan would occur between the time that the
child is three years old and the time the child enters, or is eligible
to enter, kindergarten, depending on how long the State made those
services available under proposed Sec. 303.211.
Proposed Sec. 303.211(b)(7) would require a referral for
evaluation for early intervention services of a child under the age of
three who experiences a substantiated case of trauma due to exposure to
family violence, as defined in section 320 of the Family Violence
Prevention and Services Act, consistent with section 635(c)(2)(G) of
the Act. Proposed Sec. 303.211(b)(7) would clarify that such referral
is dependent upon parental consent. Parental consent would be required
to balance the need to protect the safety needs of the parent
[[Page 26469]]
seeking shelter because of family violence, as defined in section 320
of the Family Violence Prevention and Services Act, 42 U.S.C. 10401 et
seq., with the child find mandate under Part C of the Act.
Proposed Sec. 303.211(c) would incorporate language from section
635(c)(3) of the Act and would require each State that provides early
intervention services to children ages three and older to report to the
Secretary the number and percentage of children who are eligible for
services under section 619 of the Act, but whose parents choose to
continue early intervention services for their child. Consistent with
section 635(c)(4) of the Act, proposed Sec. 303.211(d) would require
States that choose to provide early intervention services to children
ages three and older to describe the funds that will be used to ensure
that this option is available to eligible children and families who
provide consent. The description must include the Federal, State, or
local funds that will be used and the fees, if any, to be charged to
families with public or private insurance under a State's system of
payments adopted under section 632(4)(B) of the Act and proposed
Sec. Sec. 303.520 and 303.521.
Proposed Sec. 303.211(e)(1) would incorporate the language in
section 635(c)(5)(A) of the Act that provides that when a statewide
system includes a policy to provide early intervention services to a
child with a disability who is eligible for services under section 619
of the Act, it is not required to provide the child FAPE under Part B
of the Act for the period of time during which the child is receiving
early intervention services.
Proposed Sec. 303.211(e)(2) would incorporate the language in
section 635(c)(5)(B) of the Act that clarifies that a provider of early
intervention services is not required to provide a child receiving
early intervention services with FAPE.
Proposed Sec. 303.212, which requires each application to include
any other information and assurances that the Secretary may reasonably
require, would be added to incorporate the provisions in section
637(a)(11) of the Act. This regulation would provide for the Secretary
to require the States to submit other reasonable information and
assurances in the State's application for funds under Part C of the
Act, and would be enforced as any other requirement in this part in
order for a State to receive a grant under section 633 of the Act.
Assurances
The assurances in proposed Sec. Sec. 303.221 through 303.227 would
follow the order of the assurance requirements in section 637(b) of the
Act.
Proposed Sec. 303.220 would specify that each State application
must include the assurances required in proposed Sec. Sec. 303.221
through 303.227, which would reflect the requirements in section
637(b)(1) through (7) of the Act.
Proposed Sec. 303.221, regarding the expenditure of funds, would
reflect section 637(b)(1) of the Act and would retain the substance of
current Sec. 303.127, with cross-references updated.
Proposed Sec. 303.222, requiring the State to comply with the
payor of last resort requirements in subpart F of these proposed
regulations, would replace current Sec. 303.126. Current Sec.
303.126(a) and (b), which reference the requirements on non-
substitution of funds and non-reduction of other benefits, would now be
incorporated into proposed Sec. 303.510.
Proposed Sec. 303.223, regarding control of funds and property, is
generally the same as and would replace current Sec. 303.122 and
incorporate the statutory provision in section 637(b)(3) of the Act.
Proposed Sec. 303.224, regarding reports and records, would
substantively include the language in current Sec. 303.121.
Proposed Sec. 303.225, regarding the prohibition against
commingling and supplanting, would combine current Sec. Sec. 303.123
and 303.124 and the requirements in section 637(b)(5) of the Act.
Proposed Sec. 303.225(a) would replace current Sec. 303.123 to
require that a State ensure that funds under Part C of the Act are not
commingled with State funds, and would add the definition of commingle
from the note following current Sec. 303.123. The remainder of the
current note, regarding a clear audit trail for each source, would be
removed because it is redundant of requirements under the Single Audit
Act (31 U.S.C. 7501 et seq.), which applies to Part C of the Act.
Proposed Sec. 303.225(b)(1) would substantively include the
language in current Sec. 303.124(a) and (b). Proposed Sec.
303.225(b)(1)(i) would require that Federal funds be used to
supplement, and, in no case, supplant State and local funds. Proposed
Sec. 303.225(b)(1)(ii) would require that the total amount of State
and local funds budgeted for expenditures in the current fiscal year
for early intervention services for infants and toddlers with
disabilities and their families must be at least equal to the total
amount of State and local funds actually expended in the most recent
preceding fiscal year for those services.
Proposed Sec. 303.225(b)(2)(i) through (iv) would incorporate the
language in 34 CFR 300.204(a) through (d) of the Part B regulations (71
FR 46780), regarding exceptions to maintenance of effort; and would
allow a Part C lead agency's maintenance of effort to be temporarily
reduced in an individual year due to: a decrease in the number of
infants and toddlers who are eligible to receive early intervention
services; the termination of costly expenditures for long-term
purchases, such as the acquisition of equipment and cost of
construction of facilities; the departure of personnel either
voluntarily or for just cause; and the termination of the obligation to
make early intervention services available to an exceptionally costly
IFSP program for a particular infant or toddler with a disability.
Proposed Sec. 303.225(c) would incorporate the indirect cost
requirements under Part C of the Act and under 34 CFR part 76.
Proposed Sec. 303.226, which requires certain fiscal control and
fund accounting procedures, would replace and substantively include the
language in current Sec. 303.125. Proposed Sec. 303.227, which
requires policies and practices to ensure that traditionally
underserved groups are meaningfully involved in the planning and
implementation of the requirements under Part C of the Act, would
include the language in current Sec. 303.128, except that children
with disabilities who are wards of the State would be added to the list
of traditionally underserved groups, consistent with section 637(b)(7)
of the Act.
Subsequent Applications and Modifications, Eligibility Determinations,
and Standard of Disapproval
Proposed Sec. 303.228 would incorporate the language in section
637(d), (e), and (f) of the Act and is substantively the same as
current Sec. 303.100(b), (c), and (d). Proposed Sec. 303.229 would
add a provision that the Secretary notify the State if the Secretary
determines a State is eligible to receive a grant under section 637 of
the Act. Proposed Sec. 303.230 regarding the standard for disapproval
of an application, would replace current Sec. 303.101, and would
provide, consistent with section 637(c) of the Act, that the Secretary
does not disapprove an application under this part unless the Secretary
determines, through the notice and opportunity for hearing procedures
in proposed
[[Page 26470]]
Sec. Sec. 303.231 through 303.236, that an application fails to comply
with the requirements of this part.
Department Procedures
Proposed Sec. Sec. 303.231 through 303.236 would set forth the
specific notice and hearing procedures that would apply before the
Secretary determines a State is not eligible to receive a grant under
this part. These proposed regulations would incorporate the language in
34 CFR 300.179 through 300.184 of the Part B regulations (71 FR 46776-
46778). We propose to adopt these regulations in order to encourage
greater consistency between Part B and Part C program operations.
Subpart D--Child Find, Evaluations and Assessments, and Individualized
Family Service Plans
Proposed subpart D would incorporate the requirements from section
636 of the Act regarding evaluations and assessments and IFSPs.
Proposed subpart D of these proposed regulations would also incorporate
the comprehensive child find system requirements because they overlap
with evaluation requirements and because the new statutory child find
requirements are contained in sections 612, 631, 632, 634, 635, 637 and
641 of the Act, which do not readily relate to a corresponding subpart
in these proposed regulations.
Public awareness, child find, referral and screening procedures
would be in proposed Sec. Sec. 303.300 through 303.303. Evaluation and
assessment requirements would be combined in proposed Sec. 303.320 to
incorporate the relevant provisions in section 636(a)(1) and (2) of the
Act.
IFSP provisions would be primarily unchanged in proposed Sec. Sec.
303.340 through 303.345. Section 636(e) of the Act, regarding parental
consent for IFSPs, would not be addressed in subpart D of these
proposed regulations. It would instead be included with other parental
consent provisions in proposed Sec. 303.420, to align with section 639
of the Act regarding procedural safeguards.
Identification--Public Awareness, Child Find, and Referral
Proposed Sec. 303.300(a) and (b), regarding a public awareness
program, would incorporate language from current Sec. 303.320 that
requires a public awareness program that provides for information to be
prepared and disseminated to primary referral sources to inform parents
of infants and toddlers about the child find system, central directory,
and the availability of preschool services under section 619 of the
Act. Proposed Sec. 303.300(a) would also cross-reference proposed
Sec. 303.116, which would require a statewide system to have a public
awareness program consistent with the provisions in proposed Sec.
303.300. Consistent with section 635(a)(6) of the Act, proposed Sec.
303.300(a)(1)(ii) would add a specific reference to parents of
premature infants, or infants with other physical risk factors
associated with learning or developmental complications.
Proposed Sec. 303.300(a)(2) would add a requirement that the
statewide system have procedures for assisting primary referral sources
to disseminate information to parents of infants and toddlers with
disabilities, consistent with section 635(a)(6) of the Act. This
proposed provision would replace current Sec. 303.321(d)(2)(iii),
which was removed, consistent with section 635(a)(6) of the Act.
Proposed Sec. 303.300(a)(2) would cross-reference proposed Sec.
303.302(c) which defines the term primary referral sources for the
purposes of subpart C. Notes 1 and 2 following current Sec. 303.320,
which include the components for an effective public awareness program,
would be removed, as they do not reflect regulatory requirements and
are therefore not necessary.
Proposed Sec. 303.301, regarding a comprehensive child find
system, would incorporate the requirements from current Sec. 303.321
and would also emphasize the applicability of the child find system for
the specific subpopulations referred to in many sections of the Act.
Proposed Sec. 303.301(a)(1) and (2) would incorporate language from
section 635(a)(5) of the Act, which requires a system for making
referrals to service providers that includes timelines and provides for
participation by primary referral sources. Proposed Sec. 303.301(a)(3)
would incorporate statutory language from section 635(a)(5) of the Act
that requires rigorous standards for appropriately identifying infants
and toddlers with disabilities for early intervention services under
Part C of the Act that would reduce the need for future services.
Proposed Sec. 303.301(a)(4) would require the comprehensive child find
system to meet the requirements in paragraphs (b) and (c) of this
section and proposed Sec. 303.302, regarding referral procedures, and
proposed Sec. 303.303, regarding screening procedures.
Proposed Sec. 303.301(b) would address the scope of child find by
identifying specific subpopulations of children that were added in the
2004 amendments to Part C of the Act. Current Sec. 303.321(a)(2) would
be removed as redundant with proposed Sec. 303.301(b) and (c),
regarding the lead agency's responsibilities for administering the
child find system under Part C of the Act, and proposed Sec.
303.604(a)(3), regarding the Council's advisory role.
Proposed Sec. 303.301(b) would incorporate current Sec.
303.321(a)(2), which identifies the lead agency as the agency
responsible for implementing a comprehensive child find system.
Proposed Sec. 303.301(b)(1)(i) and (ii) would add references to
children who are residing on a reservation located in a State,
homeless, in foster care, and wards of the State to incorporate
sections 612(a)(3)(A), 634(1) and 635(a)(2) of the Act and to align
with the child find provisions in 34 CFR 300.111 of the Part B
regulations (71 FR 46764). Proposed Sec. 303.301(b)(1) would cross-
reference the provisions in proposed Sec. 303.731(e)(1)) to ensure
coordination by lead agencies with tribes, tribal organization, and
consortia located in the State to ensure the timely identification of
Indian infants and toddlers with disabilities.
Proposed Sec. 303.301(b)(2) would replace current Sec.
303.321(b)(2) and would clarify that child find includes methods for
determining which children are in need of early intervention services
and which children are not in need of those services.
Proposed Sec. 303.301(c) would incorporate the requirements of
current Sec. 303.321(c) and would add language requiring child find
coordination with the following programs and agencies, to align with
sections 634(1), 635(c)(2)(G), and 637(a)(6) and (10) of the Act: early
education programs in the State, including Head Start and Early Head
Start programs under section 645A of the Head Start Act; child
protection programs including the foster care program and the State
agency responsible for administering the Child Abuse Prevention and
Treatment Act (CAPTA); child care programs in the State; and the
programs that provide services under the Family Violence Prevention and
Services Act for States electing to make available early intervention
services to children with disabilities, in accordance with section
635(c) of the Act and proposed Sec. 303.211.
Proposed Sec. 303.302, regarding referral procedures, would
require that the referral of a child under proposed Sec.
303.302(a)(2)(i) be as soon as possible after the child has been
identified. This is a change from the requirement in current Sec.
303.321(d)(2)(ii), which requires the referral to occur within two
[[Page 26471]]
working days. The 2004 Amendments require lead agencies to conduct
child find for additional subpopulations, which has substantially
increased the number of referrals, making the two-day period
impractical. A change in referral timeline is needed because we have
found that the two-day referral is often not practical when some
primary referral sources of these additional subpopulations are working
with the lead agency and reviewing all information available about the
child in order to determine whether the child may be suspected of
having a disability and may need referral for evaluation under Part C
of the Act. In addition, the Department has limited ability to enforce
such a timeline given that primary referral sources include private
physicians and other individuals and entities that are not EIS
providers. Recognizing the importance of referring and identifying
children potentially eligible for early intervention services as soon
as possible, we are seeking comment on the proposed change in proposed
Sec. 303.302(a)(2)(i), specifically, regarding whether a different
timeframe or approach is more appropriate.
Proposed Sec. 303.302(b), regarding referral of specific at-risk
children, would incorporate language from section 637(a)(6) of the Act,
which requires States to have policies and procedures for the referral
of early intervention services under Part C of the Act for an infant or
toddler under the age of three who is involved in a substantiated case
of child abuse or neglect; or is identified as affected by illegal
substance abuse, or withdrawal symptoms resulting from prenatal drug
exposure.
Proposed Sec. 303.302(b)(1) would require the referral of a child
under the age of three who is involved in a substantiated case of child
abuse or neglect. This provision is consistent with CAPTA, which was
amended in June 2003 to require States receiving CAPTA funds to have
policies regarding the referral to the Part C program of children under
the age of three who were involved in a substantiated case of abuse or
neglect. In coordinating with the U.S. Department of Health and Human
Services, which administers CAPTA, the Department has confirmed that
neither Part C of the Act nor CAPTA requires the referral of a child
other than the child who is the subject of a proceeding resulting in
substantiation. Therefore, proposed Sec. 303.302(b)(1) would not
require a sibling to be referred or screened unless that sibling is a
child under the age of three who has been the subject of a
substantiation proceeding.
Proposed Sec. 303.302(c) would incorporate the definition of
``primary referral sources'' in current Sec. 303.321(d)(3), but would
add to the definition: schools, clinics, public agencies and staff in
the child welfare system including child protective service and foster
care, homeless family shelters, and domestic violence shelters and
agencies for States electing to make services under Part C of the Act
available to children after the age of three in accordance with section
635(c)(2)(G) of the Act and proposed Sec. 303.211. This would
implement the intent of Congress, as expressed in note 290 of the Conf.
Rpt., to ensure that the comprehensive child find system ``includes a
broad range of referral sources such as homeless family shelters,
clinics and other health service related offices, public schools and
officials and staff in the child welfare system.'' The timelines for
public agencies to act on referrals in current Sec. 303.321(e) would
be replaced by those in proposed Sec. 303.320(e). The Note following
current Sec. 303.321 would be removed as it does not reflect a
regulatory requirement and is therefore not necessary.
Proposed Sec. 303.303 would clarify the responsibilities of the
lead agency regarding when screening may be used once a child is
referred for early intervention services under Part C of the Act. These
screening provisions would be added because we have determined them to
be necessary. Although section 639(a)(4) of the Act has always
referenced ``screening,'' the new child find provisions in the Act
require lead agencies and primary referral sources to determine how
best to efficiently identify, from the increased number of potential
referrals, those children experiencing developmental delays or
potentially eligible for early intervention services under Part C of
the Act. Many States have already adopted screening procedures to
accomplish this.
Proposed Sec. 303.303(a)(1) would expressly permit States to have
procedures for the screening of a child, when appropriate, to determine
if the child is suspected of having a disability, and would clarify
that if the State lead agency elects to adopt screening procedures to
determine if a child is suspected of having a disability, those
screening procedures must meet the requirements of proposed Sec.
303.303. States would not be required to adopt screening procedures,
but if States adopt such procedures, those procedures would have to
meet the requirements in proposed Sec. 303.303.
Proposed Sec. 303.303(a)(2) would clarify that, if the screening
indicates that the child is suspected of having a disability, the lead
agency must conduct an evaluation under proposed Sec. 303.320 to
determine the eligibility of the child. This provision would be added
because, if the lead agency were to conduct a screening that indicated
the child is suspected of having a disability, such screening results
would provide the lead agency with information that the infant or
toddler may be experiencing developmental delays. If the lead agency
believes, based on the screening and other available information, that
a child is not suspected of having a disability, then proposed Sec.
303.303(a)(3), consistent with current Sec. 303.403, would require the
lead agency to provide the parent with notice under proposed Sec.
303.421 that it is declining to conduct an evaluation. The notice
requirement in proposed Sec. 303.303(a)(3) would be added because it
is the Department's experience that many States were not aware of the
need to provide notice under these circumstances.
Proposed Sec. 303.303(a)(4) would require the lead agency to
conduct an evaluation if a parent requests an evaluation after the lead
agency determines a child is not suspected of having a disability after
completing a screening. These proposed regulations provide this
clarification because most States that have adopted screening
procedures after the June 2003 CAPTA amendments and the IDEA 2004
amendments have found that permitting the parent to request an
evaluation is necessary to ensure appropriate identification of
eligible children. In addition, the Department's experience indicates
that parents often can identify or suspect developmental delays in
their children that may not be identified through a screening. Further,
research in the early childhood community demonstrates that parents are
often in the best position to observe and know their infant's or
toddler's developmental status.
Proposed Sec. 303.303(b)(1) would define screening procedures as
activities that are carried out by a public agency, EIS provider, or
designated primary referral source (except for parents) to identify
infants and toddlers suspected of having a disability and in need of
early intervention services at the earliest possible age. Proposed
Sec. 303.303(b)(2) would clarify that the screening procedures include
the administration of appropriate instruments by qualified personnel
that can assist in making the identification described in proposed
Sec. 303.303(a)(1).
[[Page 26472]]
Proposed Sec. 303.303(c) would clarify that for every child who is
referred to the Part C program or receives a screening, the lead agency
is not required to provide an evaluation and assessment of a child,
unless the child is suspected of having a disability or the parent
requests an evaluation under proposed Sec. 303.303(a)(4). This
clarification is consistent with note 303 of the Conf. Rpt., which
provides that every child who is referred for early intervention
services under Part C of the Act, or who is screened is not required to
receive an evaluation unless the child is suspected of having a
disability and is not required to receive early intervention services
under Part C of the Act unless that child is eligible.
The Department notes that screening has long been part of States'
child find and public awareness systems under Part C of the Act. The
proposed regulations on screening would not apply to screenings
conducted: (1) prior to a child's referral for services under Part C of
the Act; (2) when a child's eligibility has already been determined; or
(3) to siblings of children in substantiated cases of abuse or neglect.
As part of the child find and public awareness systems, primary
referral sources and other community agencies often conduct routine
agency screenings of infants and toddlers and other children. The
proposed Part C regulations would not apply to screenings that are
routinely conducted by primary referral sources and are not used by the
lead agency to determine whether a child is suspected of having a
disability.
In addition, children already determined to be eligible (such as a
child with a diagnosed condition who has medical records that the lead
agency can use to establish eligibility) would not need to be screened,
because the purpose of screening is to determine whether a child is
suspected of having a disability.
Finally, neither Part C of the Act nor CAPTA requires the referral
or screening of siblings of a child, other than the child who is the
subject of the proceeding resulting in substantiated abuse or neglect
or who is identified as affected by illegal substance abuse or
withdrawal symptoms resulting from prenatal drug exposure, unless that
sibling is under the age of three and has also been the subject of a
substantiation proceeding. However, under Part C of the Act, States may
establish broader policies to permit or require the referral or
screening of these siblings.
Evaluation and Assessment of the Child and Family and Assessment of
Service Needs
Proposed Sec. 303.320 would combine the requirements from current
Sec. Sec. 303.300(b), 303.322, and 303.323 and section 636(a)(1) and
(2) of the Act. Proposed Sec. 303.320(a)(1) would require the lead
agency to ensure that a timely, comprehensive, and multidisciplinary
evaluation and an assessment are performed for each child under three
who is referred for an evaluation and is suspected of having a
disability. Proposed Sec. 303.320(a)(2)(i) would clarify that an
evaluation is the method used to review the assessments of the child
and the family to determine a child's initial and continuing
eligibility consistent with the definition of infant or toddler with a
disability in proposed Sec. 303.21. Proposed Sec. 303.320(a)(2)(ii)
would clarify that in conducting an evaluation, no single procedure may
be used as the sole criterion for determining the child's eligibility
for Part C services. Proposed Sec. 303.320(a)(2)(iii) would clarify
that the use of a child's medical and other records may be used to
establish eligibility (without conducting an assessment of the child
and the family) if those records contain information, required under
proposed Sec. 303.320, regarding the child's level of functioning in
the developmental areas identified in proposed Sec. 303.21(a)(1). The
nondiscriminatory procedures in current Sec. 303.323 would be
incorporated into proposed Sec. 303.320(a)(3).
Proposed Sec. 303.320(b)(1) would incorporate the procedures for
the assessment of a child found in current Sec. Sec. 303.322(b)(2),
303.322(c)(2), and 303.323(c). Proposed Sec. 303.320(b)(1) would
clarify that an assessment of