Tuesday,

September 5, 2000

Part II

Department of
Education
34 CFR Part 303
Early Intervention Program for Infants
and Toddlers With Disabilities; Proposed
Rule

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53808 Federal Register / Vol. 65, No. 172 / Tuesday, September 5, 2000 / Proposed Rules

DEPARTMENT OF EDUCATION (1) Natural environments (i.e., providers, and the general public to
proposed § 303.341, and changes to review the changes within the context of
34 CFR Part 303 §§ 303.12(b), 303.18, 303.167(c); and the existing regulations.
RIN 1820–AB53 303.344(d), and other changes identified In providing this accommodation,
in the discussion of changes on natural however, we are asking that comments
Early Intervention Program for Infants environments later in this preamble); submitted on this NPRM be limited only
and Toddlers With Disabilities (2) State financing of early to the provisions in the existing
intervention services and the use of regulations to which we are proposing
AGENCY: Office of Special Education and insurance (i.e., proposed § 303.519, and to make substantive changes, including
Rehabilitative Services, Department of changes to §§ 303.520 and 303.521); and the provisions identified earlier in this
Education. (3) Other areas, including— preamble.
ACTION: Notice of proposed rulemaking. • The provisions on service To ensure that comments have the
coordination (i.e., §§ 303.12(d)(11), maximum effect in developing the final
SUMMARY: The Secretary proposes to 303.23, and a new 303.302); regulations, we encourage you to
amend the regulations governing the • The two-day timeline provision in identify clearly the specific subpart,
Early Intervention Program for Infants the child find requirements (i.e., section, and paragraph of the proposed
and Toddlers With Disabilities under § 303.321(d)(2)(ii)); regulations that each comment
Part C of the Individuals with • Individualized family service plans addresses, and to arrange the comments
Disabilities Education Act (IDEA). These (IFSPs), to—(1) include under proposed in the same order that the proposed
amendments are needed to provide § 303.342(a)(2), a provision on special changes appear in the text of this
clarification and guidance regarding the considerations (similar to the Part B NPRM.
provision of early intervention services requirement in 34 CFR 300.346(a)(2)); We also invite you to assist us in
in ‘‘natural environments;’’ to revise the and (2) to further clarify (under complying with the specific
provisions on State financing of early 303.343(a)(2)) how evaluation results requirements of Executive Order 12866
intervention services (including adding will be interpreted at an IFSP meeting and its overall requirement of reducing
provisions to address the use of public if the person or persons conducting the regulatory burden that might result from
and private insurance by States); and to evaluations and assessments is unable these proposed regulatory changes.
make other changes designed to to be present at the meeting; Please let us know of any further
improve the understanding and • The ‘‘pendency’’ provision under opportunities we should take to reduce
implementation of the regulations under § 303.425, to clarify that the provision potential costs or increase potential
this part. does not apply if a child is transitioning benefits while preserving the effective
DATES: We must receive your comments from Part C services to preschool or and efficient administration of the
on or before December 4, 2000. other services; and program. Again, however, please limit
ADDRESSES: Address all comments about • Transition to preschool or other your comments to the changes we have
these proposed regulations to Thomas B. appropriate services under §§ 303.148 proposed to the existing regulations.
Irvin, Office of Special Education and and 303.344(h), to make clarifying During and after the comment period,
Rehabilitative Services, U.S. Department changes regarding those provisions. you may inspect all public comments
of Education, Room 3090, Mary E. A description of each of these changes about this proposed regulation in Room
Switzer Building, 330 C Street, SW., and other proposed substantive changes 3090, Mary E. Switzer Building, 330 C
Washington, DC 20202–2570. is included later in this preamble. In Street SW., Washington, DC, between
If you prefer to send your comments addition, ‘‘Attachment 1’’ to this NPRM the hours of 8:30 a.m. and 4 p.m.,
through the Internet, use the following includes a consolidated list, by subpart Eastern time, Monday through Friday of
address: [email protected] and section, of the proposed revisions to each week except Federal holidays.
You must use the term ‘‘IDEA—Part C be made to the existing regulations,
regulations’’ in the subject line of your except for minor technical changes (e.g., Assistance to Individuals With
electronic message. correcting typos, making simple word Disabilities in Reviewing the
FOR FURTHER INFORMATION CONTACT: changes, and other similar changes). Rulemaking Record
JoLeta Reynolds or Thomas B. Irvin The majority of the requirements in On request, we will supply an
(202) 205–5507. If you use a part 303 (nearly two-thirds of all appropriate aid, such as a reader or
telecommunication device for the deaf sections in the existing regulations) are print magnifier, to an individual with a
(TDD), you may call the TDD number at not being revised by this NPRM, and disability who needs assistance to
(202) 205–5465. would remain unchanged at the end of review the comments or other
Individuals with disabilities may this rulemaking process. However, documents in the public rulemaking
obtain this document in an alternate although we are proposing to amend a record for this proposed regulation. If
format (e.g., Braille, large print, relatively small number of requirements you want to schedule an appointment
audiotape, or computer diskette) on in these regulations, we are sensitive to for this type of aid, you may call (202)
request to Katie Mincey, Director of the the difficulties readers face if the NPRM 205–8113 or (202) 260–9895. If you use
Alternate Formats Center. Telephone: shows only the amended language and a TDD, you may call the Federal
(202) 205–8113. not the entire regulation. Thus, to Information Relay Service at 1–800–
SUPPLEMENTARY INFORMATION: accommodate readers in understanding 877–8339.
these proposed changes, we have
Invitation to Comment elected to publish the full text of the Background
We invite you to submit comments regulations, as it would be if amended, On April 14, 1998, the Secretary
and recommendations regarding the rather than simply publishing an published in the Federal Register (63
specific provisions in this notice of amendatory document that shows only FR 18290) final regulations governing
proposed rulemaking (NPRM) to which the proposed changes. While this ‘‘Part H’’ of the IDEA, the Early
we are proposing to make changes to the approach increases the length of this Intervention Program for Infants and
existing regulations for part 303, NPRM, it provides a more meaningful Toddlers with Disabilities (34 CFR part
including proposed changes relating to: way for parents, public agencies, service 303). Those final regulations revised

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 Federal Register / Vol. 65, No. 172 / Tuesday, September 5, 2000 / Proposed Rules 53809

part 303 to incorporate the statutory whether additional revisions are needed child, early intervention services must
amendments to Part H that were added to implement the requirements added be provided in natural environments,
by the IDEA Amendments of 1997, by the IDEA Amendments of 1997, and including the home and community
including new provisions relating to on whether to develop new regulations settings in which children without
mediation, natural environments, payor in areas that were not affected by the disabilities participate. Second, a
of last resort, personnel standards, and statutory amendments. On August 14, definition of ‘‘natural environments’’ is
State interagency coordinating councils. 1998, the Secretary published another included in § 303.18 (i.e., the term
These regulations became effective on notice in the Federal Register, ‘‘means settings that are natural or
July 1, 1998, and at that time the Part extending the period for submitting normal for the child’s age peers who
H program was renamed ‘‘Part C,’’ comments until the 30th day following have no disabilities’’).
consistent with the IDEA Amendments publication of the final regulations for Third, the State application
of 1997. Part B of IDEA (i.e., April 12, 1999). requirements on IFSPs in § 303.167 of
On March 12, 1999, with the By the end of the comment period,
the current regulations include, under
publication of final regulations for Part 328 comments were received in
paragraph (c) of that section, a statutory
B of IDEA (34 CFR part 300), the response to the Federal Register notices,
provision that requires policies and
regulations under part 303 were further including letters from parents and
procedures on natural environments.
revised to make conforming grandparents, several State lead
Finally, the ‘‘Content of IFSP’’
amendments to the definition of agencies and interagency coordinating
requirements in § 303.344 require,
‘‘parent’’ in § 303.19, the State councils, early intervention service
complaint procedures in §§ 303.510– under paragraph (d) of that section, that
providers, and parent-advocate and
303.512, and the use of proceeds from the IFSP include a statement of the
professional associations.
public or private insurance in The comments addressed a wide specific early intervention services
§ 303.520(d). range of provisions in the current necessary to meet the unique needs of
Except for those technical and regulations, but focused mainly on the child and the family, including—
conforming amendments made to part natural environments; finance issues, ‘‘(iii) The natural environments, as
303 in 1998 and 1999, these regulations resources, and insurance; described in §§ 303.12(b) and 303.18, in
have not been amended since 1993, individualized family service plans which early intervention services will
when they were revised to implement (IFSPs); personnel standards; procedural be provided, and a justification of the
the IDEA Amendments of 1991 (Pub. L. safeguards; and transition to preschool extent, if any, to which the services will
102–119) and make certain other programs. not be provided in a natural
changes. Moreover, many provisions in The comments submitted in response environment.’’
part 303 have remained in effect since to the two Federal Register notices were Based on the public comments we
the initial regulations for the ‘‘Part H carefully reviewed and considered in received about natural environments, as
program’’ were published in 1989. developing this NPRM. We appreciate well as other concerns and questions
In many respects, the regulations for the thoughtful attention of the raised with the Department in recent
the Part C program have provided, over commenters in responding to these years, it is clear that there is some
an extended period of time, an effective notices. misunderstanding about the meaning of
blueprint for States to follow in Taken as a whole, the comments ‘‘natural environments,’’ and how those
developing and maintaining a statewide validated the need for the Department to provisions are to be implemented.
system of early intervention services for publish a notice of proposed rulemaking The changes that we are proposing to
infants and toddlers with disabilities (NPRM) on selected provisions in the make to the natural environment
and their families. However, based on Part C regulations. provisions do not impose major new
the Department’s experience in The following describes the proposed substantive requirements. Instead, in
administering the Part C program, changes to the regulations on natural contrast to the current regulations, they
especially in recent years, it has become environments, followed by a description focus more fully on a basic theme
clear that changes are needed in certain of other proposed regulatory changes by inherent in the Part C program—the
key requirements in part 303, as subpart and section, including proposed individualization of decisions, through
described earlier in this preamble under changes regarding the financing of early the IFSP process, in determining—(1)
the ‘‘Invitation to Comment.’’ intervention services, described under
The need for making the proposed what specific early intervention services
§§ 303.519–303.521 of Subpart F. a child needs, and (2) the setting or
changes in this NPRM has become
increasingly apparent in recent years, Natural Environments settings in which those services will be
based on (1) the kinds of questions we We are proposing to make clarifying provided. Virtually all major changes on
have received from parents and public changes to the provisions on ‘‘natural natural environments that are proposed
agency staff about problems they are environments’’ in the existing in this NPRM are directed at giving
facing with the Part C program; (2) the regulations, in order to more accurately greater emphasis to that theme than the
policy guidance we have provided to reflect the Department’s long-standing current regulations reflect.
States; and (3) the findings we have policy interpretation regarding these The concept of individualization
made in monitoring State provisions, and to provide more through the IFSP process is consistent
implementation of the Part C program. definitive guidance on their with the Part C regulatory history on
In addition, as a follow-up to the implementation than is included in the natural environments. For example, the
Department’s recognized need to amend current regulations. concept was addressed in the ‘‘Analysis
selected provisions in the existing The provisions on natural of Comments and Changes’’ in the 1993
regulations for part 303, the Secretary environments are included in four final Part H regulations, in which
published (in the same April 14, 1998 sections of the current regulations, as commenters had requested clarification
issue of the Federal Register (63 FR follows: First, in the definition of early and examples of when a child must be
18297) described earlier in this intervention services under § 303.12(b), served in a natural environment. The
preamble) a notice soliciting advice and which states that, to the maximum response to those comments is included
recommendations from the public as to extent appropriate to the needs of the in the following paragraph:

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53810 Federal Register / Vol. 65, No. 172 / Tuesday, September 5, 2000 / Proposed Rules

Discussion: The Secretary believes that no Thus, while ‘‘natural environments’’ Section 303.167(c) (which contains
further guidance is appropriate at this time. are the legally preferred settings for the State application requirement on
Decisions on the early intervention services providing early intervention services, it natural environments from section
to a child and his or her family, including would be appropriate, under Part C of 635(a)(16) of the Act) would be
decisions on the location of service delivery,
are made in the development of the the Act and these regulations, for a amended by—(1) moving the substance
individualized family service plan described given child to receive one or more of the of that requirement to a new
in §§ 303.340–303.346. The Secretary early intervention services in another § 303.341(a); and (2) revising the
contemplates that the range of available setting, if the child’s IFSP team, after language in § 303.167(c) to clarify that
options will be reviewed at the IFSP meeting reviewing the relevant information each application must include ‘‘Policies
described in § 303.342, in which the parents about the child, makes that and procedures on natural
are full participants. With respect to the determination. environments that meet the
comment on center-based services, the requirements of §§ 303.341 and
Secretary emphasizes that decisions on the Proposed Changes to Natural
303.344(d)(3).’’
location of service delivery must be made on Environments Provisions These proposed changes to the IFSP
an individualized basis in accordance with The following are changes that we are
the needs of the child and the family. See
definition, together with the new
§ 303.344(d). (58 FR 40982, July 30, 1993).
proposing to make to the natural provisions in proposed § 303.341,
environments provisions in the current highlight the crucial role that the IFSP
The basic thrust of the natural regulations: team (including the parents) plays in
environments provisions in the statute We are proposing to amend the implementing the natural environments
and regulations is that, to the maximum definition of ‘‘natural environments’’ in provisions, but does so without
extent appropriate, early intervention § 303.18, by—(1) making technical imposing any additional burden on IFSP
services are provided in the home of changes, including designating the teams. However, these changes would
each eligible child, or in community current definition as § 303.18(a), and (2) address a problem that the Department
settings in which children without incorporating, as new § 303.18(b), the has found in monitoring States’
disabilities participate. The basic substance of the provision on natural implementation of the Part C program.
principle underlying this requirement is environments from § 303.12(b) of the In some States, the decisions as to the
that being in integrated settings with existing regulations. This proposed settings for providing services either (1)
their nondisabled peers will enhance change would include, in one place, the have been made without the benefit of
the development of eligible children full text of the definition of ‘‘natural the full IFSP team’s involvement; or (2)
under this part. It also prepares the environments’’ rather than having the have been dictated by external
child and family, if the child is ‘‘Part provisions divided among two separate circumstances, such as funding sources
B—eligible,’’ for the experience of sections under Subpart A of the current or personnel, without regard to the
receiving services in the least restrictive regulations (i.e., §§ 303.12(b) and needs of the particular child.
environment. For a child who is not 303.18). Proposed § 303.341(a) would
eligible for Part B services and may In addition, consistent with the Part C incorporate the substance of
automatically be integrated in school theme of individualized decisions by § 303.167(c) (described earlier), and
and in life with nondisabled peers, the IFSP teams, we are proposing to amend would be amended to clarify the role of
child and family would likewise be the corresponding regulations on the IFSP team. It is the IFSP team that
prepared. Thus, this provision ensures natural environments to include, under determines whether early intervention
that eligible children under this part the IFSP requirements in Subpart D, all can be achieved satisfactorily in a
will be in community settings with their substantive provisions related to natural natural environment, based on the
nondisabled peers—including receiving environments—first, by revising the evaluation and assessment required in
early intervention services in those definition of ‘‘IFSP’’ in proposed § 303.322 and the information required
settings—to the extent appropriate. § 303.340(a), to affirmatively state that in § 303.344(a)–(c) (i.e., the child’s
However, the IDEA Amendments of each child’s IFSP is developed by the present status, the family information,
1997 added the following new IFSP team; second, by placing all and the desired outcomes).
provisions, which make it clear that substantive ‘‘process’’ requirements A new § 303.341(b) would be added to
exceptions are anticipated, and that the regarding natural environments in a clarify that the policies and procedures
provision of services in settings other new § 303.341 (‘‘Policies and described in paragraph (a) of this
than natural environments may be procedures on natural environments’’), section must ensure that—(1) the IFSP
necessary under certain conditions: including the State application team determines, for each service to be
• Section 635(a)(16)(B) requires each requirements from § 303.167(c); and provided, whether the child’s needs can
State to have policies and procedures to third, by revising the ‘‘Content of IFSP’’ be met in a natural environment; and (2)
ensure that—‘‘The provision of early requirements in § 303.344, to make if the team determines that a specific
intervention services for any infant or clarifying and technical changes on service for the child must be provided
toddler occurs in a setting other than a natural environments. in a different setting (for example, in a
natural environment only if early The revised definition of ‘‘IFSP’’ in center-based program that serves
intervention cannot be achieved § 303.340(a) makes it clear that, among children with disabilities, or another
satisfactorily for the infant or toddler in its various duties and responsibilities, setting appropriate to the age and needs
a natural environment;’’ (Emphasis the IFSP team is directly responsible of the child), a justification is included
added). for—(1) determining the specific early in the child’s IFSP.
• Section 635(d)(5) provides that the intervention services necessary to meet Proposed § 303.341(b) also would not
IFSP must include a statement of ‘‘The the unique needs of the child and the add any new burden. However, it would
natural environments * * * in which family, consistent with § 303.344(d)(1); emphasize that the IFSP team’s
early intervention services will be and (2) implementing the provisions on decisions on settings are separate for
provided, and a justification of the natural environments in § 303.344(d)(3), each service to be provided. While some
extent, if any, to which the services will including determining the specific services for a given child may be
not be provided in a natural locations or settings where each service appropriately provided in the child’s
environment.’’ (Emphasis added) will be provided. home, other services may be more

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appropriate in a group setting (e.g., if a The statutory requirement that the training sessions will take place should
service is designed to meet a IFSP include a justification of the be part of the overall discussion in the
socialization goal, the team may choose extent, if any, to which a child will not development of the IFSP.
a child care, day care, or playgroup receive services in a natural Many early intervention centers that
setting). In addition, this provision environment is a safeguard to ensure once served only children with
would emphasize that the order of that the IFSP team, including the parent, disabilities have expanded to serve
decision-making is, first, to determine, has concluded—only after carefully nondisabled children. Thus, many
for each service in the child’s IFSP, if reviewing all relevant information about opportunities exist for parents of
the needs of the child can be met in a the child—that one or more of the children with disabilities to interact;
natural environment; and, then, only if services in the child’s IFSP must be and a parent’s need for time with other
the team determines that, for a given provided in a setting other than a parents of children with disabilities may
service, the child’s needs cannot be met natural environment. The justification, be successfully accommodated in either
in a natural environment would other itself, does not have to be long or the natural environments where the
settings be considered. burdensome; it could include a simple child receives services, or in other
A provision requiring that the IFSP statement, based on the IFSP team’s settings.
include a justification of the extent, if discussion and conclusions, that However, the parent’s need cannot be
any, to which early intervention describes why the team determined that used as a justification for not providing
services will not be provided in a a particular service for the child needs services to the child in a natural
natural environment is set out in the to be provided in a different setting. environment. With respect to requiring
‘‘Content of IFSP’’ requirements in It is important, however, that the a justification of the extent, if any, to
§ 303.344; and the procedures that the conclusions of the IFSP team, as well as which the services will not be provided
IFSP team follows in implementing that the justification, be based on the needs in a natural environment, the focus of
provision are contained in § 303.341(c). of the child, and not for other reasons that requirement is on the child. Thus,
These provisions are described in the such as administrative convenience, or any justification for the child’s services
following paragraphs. the State’s fiscal or personnel to take place in a setting other than a
The provisions on natural limitations. natural environment must relate to the
environments and location of services in The provision in proposed child’s individual needs.
existing § 303.344(d)(1) would be § 303.341(c)(3) that concerns the ‘‘nature In fact, the settings for parent support,
amended, first, by moving those of the service’’ to meet the unique needs training, and counseling are not affected
provisions, in modified form, to a new of the child to support a justification, is by the natural environments provisions.
§ 303.344(d)(3), entitled ‘‘Natural meant to address the unique types of This matter is addressed in proposed
environments—location of services,’’ services for certain types of disabilities § 303.341(d), which would provide that
and deleting existing paragraphs that must be provided in a specialized the provisions on natural environments
(d)(1)(ii) and (d)(1)(iii); and, second, by setting to be effective. For example, in this part do not apply to services in
revising new § 303.344(d)(3) to—(1) add some auditory services for deaf children the IFSP that are intended to meet the
a reference to the ‘‘process’’ need to be provided in a quiet, needs of the parents or other family
requirements on natural environments controlled setting without noise members and not the needs of the child
in § 303.341; and (2) clarify that the distractions; and services for medically (e.g., participation of a parent in a
decision on natural environments, and fragile children may need to be parent-support program). However, if a
any justification needed, is made provided in a sterile environment. specific service listed in the IFSP is
separately for each service to be However, it is expected that this intended to help the parent to enhance
provided to the child. justification would be used only in the development of the child (e.g., to
Proposed § 303.341(c) would provide those extraordinary circumstances in train the parent to work directly with
that the justification required in which the child’s unique needs and the the child in implementing an exercise
§ 303.341(b) (and in § 303.344(d)(3)(ii)) unique nature of the service require the recommended by a physical therapist),
must—(1) include a statement service to be provided in a specialized the service must be provided in a
describing the basis of the IFSP team’s setting. Thus, as stated in the preceding natural environment, to the maximum
decision to provide a specific early paragraph, the use of this justification extent appropriate; and the natural
intervention service for the child in a would not be acceptable for any of the environments provisions would apply.
setting other than a natural reasons described earlier, such as The definition of ‘‘location’’ in
environment; (2) be based on the administrative convenience, funding, or § 303.344(d)(3) (and the separate
identified needs of the child, and the personnel limitations. provision on ‘‘[t]he location of the
projected outcomes, as determined by Some commenters expressed concern services,’’ previously described under
the evaluation and assessment required about losing the parent-to-parent § 303.344(d)(1)(iii)) would be deleted.
in § 303.322 and the information interactions in early intervention These provisions are no longer needed,
required in § 303.344(a) through (c); and centers. Parent networking, support, and based on the evolution of the natural
(3) if appropriate, be based on the nature training, however, are important family environment provisions since the
of the service required to meet the needs that should be addressed by the original Part H regulations were
unique needs of the child. IFSP team as part of developing a published in 1989.
From the comments and questions we child’s IFSP. The identification of
have received, it appears that ‘‘natural parent support, training, or counseling, Other Proposed Regulatory Changes
environments’’ is being interpreted by as a needed early intervention service, As previously indicated, in addition
some to mean that, without exception, may be provided directly through Part to the provisions on natural
early intervention services must be C, or by referral to an organization that environments and the proposed changes
provided only in the child’s home, or in offers these services (e.g., a Parent to the provisions on ‘‘Policies and
a community setting in which children Training and Information Center, a Procedures Related to Financial
without disabilities participate. Clearly, Parent-to-Parent program, or other Matters’’ (see description of proposed
this limitation is not intended under family support organizations). The § 303.519, and proposed changes to
either the statute or these regulations. settings in which these meetings or §§ 303.520–303.521), we are proposing

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to make changes to certain other of the current regulations that contains provision would prohibit the use of Part
requirements in the existing regulations, a note. C funds for costs of a party in either due
including updating and clarifying those This NPRM includes a number of process hearings or any resulting court
requirements, and to make other technical, structural, and organizational proceedings, and related matters,
technical and organizational changes changes that are proposed for the including costs for depositions, expert
designed to improve the understanding purpose of improving the readability witnesses, settlements, and other related
and implementation of the regulations and understanding of certain costs. For example, under this
for the Part C program. requirements in the regulations under provision, the lead agency would not be
We also are proposing to address the this part. These technical, structural, able to use Part C funds to pay for its
disposition of some of the explanatory and organizational changes, which are legal representation in a due process
notes that follow selected sections of the described in the following paragraphs hearing or resulting court proceeding. It
current regulations, as follows: (along with the proposed substantive is important to include this prohibition,
First, in a few instances, we are revisions), are not intended in any way to ensure that the limited Federal
proposing to incorporate into the text of to change the substance of the resources under Part C are used to
the regulations the nonregulatory requirements. provide early intervention services for
guidance contained in certain selected The following includes, by subpart, eligible children under this part and
notes, including the substance of the section, and paragraph, a description of their families, and are not used to
notes following §§ 303.23 (Service the proposed changes to the current Part promote litigation of disputes.
coordination; redesignated as proposed C regulations. (See also Attachment 1 to A new § 303.3(b)(2) would be added
§ 303.302); 300.123 (Prohibition against this NPRM—the ‘‘List of Proposed to make it clear that the prohibition in
commingling); 303.301 (Central Changes in IDEA—Part C Regulations,’’ paragraph (b)(1) does not preclude a
directory); and 303.361 (Personnel described earlier in this preamble.) lead agency from using Part C funds for
standards). conducting due process hearings under
Second, we are proposing to amend Subpart A—General
section 639 of the Act (for example,
the note preceding § 303.6, to delete Section 303.3 (Activities that may be paying a hearing officer, providing a
‘‘location’’ from the list of terms defined supported under this part) would be place for conducting a hearing, and
in this part (described earlier in this amended, first, by making technical paying the cost of providing the parent
preamble). We also are proposing to changes (e.g., changing the title of the with a transcription of the hearing). The
amend the note following § 303.12 section to ‘‘Use of Part C Funds’’), and general rule under § 303.3(b)—that
(Early intervention services) to provide restructuring the section, by prohibits the use of Part C funds to pay
additional clarification regarding redesignating the activities in expenses incurred by a party to an
‘‘qualified personnel’’ who provide § 303.3(a)–(e) of the existing regulations action or proceeding, but allows a lead
early intervention services. as paragraphs (a)(1)–(a)(5)). agency, as administrator of the program,
Third, we are proposing to delete Second, § 303.3 would be amended by to use the funds to make due process
Note 1 following § 303.420 (Due process adding a new paragraph (a)(6), to clarify hearings available—is consistent with
procedures) because, with the proposed that funds under this part may be used the way it is expressed in the Part B
changes made to § 303.420 and other to assist families to—(1) understand the regulations.
sections under subpart E of these sources of financing early intervention Section 303.5 (Applicable regulations)
regulations, the note would no longer be services, including public and private would be amended by updating
relevant. (An explanation of the insurance programs, and how to access paragraph (a)(1) of the section to include
proposed changes made to the notes in those sources; and (2) be knowledgeable a reference to other parts of the
this NPRM is included later in this about any potential long-term costs Education Department General
preamble under the discussion of each involved in accessing those sources, and Administrative Regulations (EDGAR)
specific section.) how to minimize those costs. that apply to part 303, including Part 97
With respect to the remaining notes in It is important that families know how (Protection of Human Subjects); Part 98
the current regulations, we are planning to access funding for early intervention (Student Rights in Research,
to remove those notes from the final services and of the consequences of Experimental Programs and Testing);
regulations, either by—(1) incorporating using public or private insurance, so and Part 99 (Family Educational Rights
into the text of the regulations the that they can make informed decisions and Privacy).
substance of any note that should be a about the provision of services for their Section 303.5 would be further
requirement; (2) adding, as part of the eligible children under this part. This amended to clarify, in paragraph (a)(3),
analysis of comments and changes, proposed use of funds would not be that the Part B due process hearing
information from any note that provides mandatory for States. procedures in 34 CFR 300.506–300.512
clarifying information or useful One way that States may assist apply to this part if a State lead agency,
guidance; or (3) deleting any note that families with respect to understanding under § 303.420(a)(1), adopts those
is no longer relevant. Our proposed sources of funding under this provision procedures. This change would make
action with respect to the notes is would be through the service explicitly applicable the translations
consistent with the process followed in coordinator assigned to each child and from Part B to Part C language in
publishing the final Part B regulations. the child’s family. Therefore, we have § 303.5(b). In addition, a technical
We specifically invite public proposed a corresponding change in the change would be made to § 303.5(a)(3)
comment on which notes should be—(1) functions of service coordinators under to change the reference to applicable
made regulatory; (2) included only as new § 303.302. Part B regulations from §§ 303.580–
guidance in the preamble to the final Section 303.3 would be further 303.303.585 to §§ 303.580–303.587.
regulations, or in the ‘‘Analysis of revised by adding a new paragraph The references in § 303.5(b)(4) would
Comments and Changes’’ included in (b)(1), to clarify that ‘‘[f]unds under Part be removed because the provisions cited
those regulations; or (3) deleted. In C of the Act may not be used to pay under that paragraph are not applicable.
order to assist commenters in this effort, costs of a party related to an action or Paragraph (b)(5) of this section would be
we have included, as ‘‘Attachment 2’’ to proceeding under section 639 of the Act redesignated as (b)(4), and the citation
this NPRM, a list showing each section and subpart E of this part.’’ This would be corrected to read, as follows:

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‘‘§ 300.127 (Confidentiality of environments, as defined in § 303.18;’’ from those services. Because the
personally identifiable information).’’ and (3) making other technical changes. placement of the definition of nursing
Finally, § 303.12 would be further services in the existing regulations has
Definitions revised by (1) moving the substance of caused confusion, this change would
The note immediately preceding paragraph (b) (on ‘‘natural clarify the meaning of nursing services
§ 303.6 (which includes a list of the environments’’) to the definition of that under Part C. With the removal of
terms that are defined in specific term in § 303.18; and (2) making other ‘‘Nursing services’’ from the list of early
subparts and sections of the regulations technical changes. intervention services under proposed
for part 303) would be amended by Section 303.12(d)(1) (proposed § 303,12(b), the remaining services in
deleting the definition of ‘‘Location § 303.12(b)(1)) (Assistive technology) that list would be renumbered
(§ 303.344(d)(3))’’ from the list (see would be amended by restructuring the accordingly.
discussion of natural environments introductory paragraph into new Section 303.12(d)(8) (proposed
earlier in this preamble). paragraph (b)(1)(i) (Assistive technology § 303.12(b)(7)) (Occupational therapy)
Section 303.9 (Days) would be device) and paragraph (b)(1)(ii) would be amended by adding language
amended by changing the title to ‘‘Day; (Assistive technology service). The to clarify that the term ‘‘(i) Means
business day;’’ and by clarifying that definition of ‘‘assistive technology services provided by a qualified
‘‘business day’’ would apply only with service’’ would be revised to clarify that occupational therapist.’’
the term means a service ‘‘that directly Section 303.12(d)(11) (‘‘Service
respect to hearing rights under 34 CFR
assists an eligible child or the child’s coordination services’’) would be
300.509, if a State adopts the Part B due
parents in the selection, acquisition, or amended, first, by making technical
process hearing procedures. As used in
use of an assistive technology device for changes (e.g., changing the title to
these proposed regulations and in Part
the child.’’ (Emphasis added) ‘‘Service coordination,’’ and changing
B (34 CFR part 300), ‘‘business day’’ Section 303.12(d)(2) (proposed the citation to § 303.12(b)(10)); and,
means Monday through Friday, except § 303.12(b)(2))(audiology) would be second, by deleting the phrase—’’that
for Federal and State holidays. amended by changing the title to are in addition to the functions and
With respect to States that implement ‘‘audiology services,’’ to conform to the activities included under § 303.23;’’ and
the due process hearing procedures statutory term; and by making other adding language to clarify that ‘‘service
under §§ 303.421–303.425 (in lieu of changes to conform more closely to the coordination’’ is actually comprised of
adopting the Part B procedures), we Part B definition (e.g., replacing those functions and activities. (See
invite comments on whether existing ‘‘auditory impairment’’ with ‘‘hearing discussion that follows.)
§ 303.422(b)(3) (Parent rights in due loss’’ each time it appears; deleting the In addition, because the definition of
process hearings) should be amended by term ‘‘at risk criteria and’’ in paragraph ‘‘Service coordination (case
replacing ‘‘days’’ with ‘‘business days’’ (d)(2)(i); and adding a new paragraph management)’’ in § 303.23 includes
in the following provision: (d)(2)(vii) on ‘‘Counseling and guidance mainly long-standing substantive
(3) Prohibit the introduction of any of children, parents, and teachers requirements, and is not simply a
evidence at the proceeding that has not been regarding hearing loss’’). definition, we are proposing to move the
disclosed to the parent at least five days In response to a suggestion from substance of that definition, without
before the hearing. commenters, § 303.12(d)(3) (proposed change, to a new substantive section of
The use of ‘‘business days’’ in this § 303.12(b)(3))(Family training, the regulations (§ 303.302 under Subpart
counseling, and home visits) would be D), and to delete § 303.23. This
context would in no way reduce a
amended by adding ‘‘special educators’’ proposed change, together with the
parent’s rights under this part, but,
to the types of personnel who may proposed revision to § 303.12(d)(11),
instead, would be beneficial because it
appropriately provide these services. would—(1) resolve the confusion that
would enable the parent to have more
Although the phrase ‘‘and other has existed with two definitions of
time in which to review the evidence.
qualified personnel’’ in the existing service coordination in the regulations
Section 303.12 (Early intervention definition under § 303.12(d)(3) would (i.e., in §§ 303.12(d)(11) and 303.23),
services) would be amended by—(1) encompass special educators as well as and (2) mean that the only definition of
changing the order of the paragraphs in other types of early intervention and service coordination under this part
the definition, including the order of related services providers, special would be the one in § 303.12(d)(11)
specific provisions in paragraph (a), to educators may not ordinarily be (proposed § 303.12(b)(10)). As revised,
conform more closely to the statutory considered under this part as having a proposed § 303.12(b)(10) would state
definition; (2) moving the list of specific role in providing family training, that ‘‘[s]ervice coordination means
early intervention services from counseling, and home visits. assistance and services provided by a
paragraph (d) to paragraph (b); and (3) Section 303.12(d)(6) (Nursing service coordinator to a child eligible
clarifying, in proposed paragraph (a)(5), services) would be moved from the under this part and the child’s family,
that the early intervention services definition of early intervention services in accordance with § 303.302.’’
listed in paragraph (b) are subject to the to the definition of ‘‘Health services’’ as (Emphasis added)
exclusions on health services in a new § 303.13(b)(3), to clarify that Thus, ‘‘service coordination’’ would
§ 303.13(c). nursing services are, in fact, an inherent remain as a listed early intervention
Section 303.12(a) would be further part of ‘‘health services necessary to service in proposed § 303.12(b)(10).
amended by—(1) clarifying, in proposed enable the infant or toddler to benefit However, as clarified in proposed
paragraph (a)(6), that early intervention from the other early intervention § 303.302(b)(2), IFSPs are not required
services are provided ‘‘in a timely services.’’ (IDEA section 632(4)(E)(x)). to include service coordination as one of
manner’’ by the qualified personnel Nursing services, like the other health the child’s early intervention services
listed in paragraph (e) (proposed services listed in § 303.13, may be under § 303.344(d)(1), because service
paragraph (c)); (2) specifying, in provided through Part C during the time coordination—(1) is a basic entitlement
proposed paragraph (a)(8), that, to the a child is receiving the other early of every eligible child under this part,
maximum extent appropriate, the intervention services described in and (2) is an on-going, coordinative
services are provided ‘‘in natural § 303.12, to enable the child to benefit process that is designed to facilitate and

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enhance the delivery of early early intervention services also may the State if the child is a ward of the
intervention services. On the other include augmentative communication State.’’). This phrase, which would
hand, IFSPs must include the name of specialists, and technology specialists. conform the definition of ‘‘parent’’ to
the service coordinator, as currently Section 303.13 (Health services) the Part B definition, was inadvertently
required in § 303.344(g) (proposed would be amended by revising omitted in the March 12, 1999 final
§ 303.344(h)). paragraph (b), to clarify that the covered regulations for Part C of IDEA (see 64 FR
Because of the crucial role that service health services under that paragraph 12535).
coordinators play in facilitating the (e.g., clean intermittent catherization Section 303.20 (Policies) would be
evaluation of an eligible child under and other health services listed in amended by revising paragraph (b)(3),
this part, and in the development and paragraph (b)(1), and consultation by due to the proposed changes to the
implementation of the child’s IFSP, it is physicians, described in paragraph sections on State finance and systems of
appropriate that the functions and (b)(2)) are subject to the limitations payments, to clarify that State policies
activities of the service coordinator be included under paragraph (c) (related to include policies concerning the State’s
moved to proposed § 303.302, so that surgical procedures and other medical- system of payments, if any, and the
they are closely linked to the child- health services and devices that are not State’s financing of early intervention
centered requirements in Subpart D. A included under ‘‘health services’’). services, in accordance with
technical change would be made in the Section 303.13(b) would be further §§ 303.519–303.521.
introduction to proposed new § 303.302 revised by adding, as a new paragraph Section 303.22 (Qualified) would be
to make it clear that ‘‘service (b)(3), the definition of ‘‘nursing amended by changing the title of the
coordination (case management)’’ is a services’’ previously included under section to read ‘‘Qualified personnel,’’
substantive requirement and not a ‘‘early intervention services’’ (discussed and amending the definition to conform
definition. earlier in this preamble under to the definition of that term in the Part
Section 303.12(d)(13) (proposed § 303.12(d)(6).) B regulations (34 CFR 300.23).
§ 303.12(b)(12)) (Special instruction) In addition, § 303.13(c) would be Section 303.23 (Service coordination
would be amended by deleting, in amended by including additional (case management)) would be deleted,
paragraph (d)(13)(i), the phrase ‘‘in a examples of services and devices that and the substance of the definition
variety of developmental areas, are not covered under ‘‘health services,’’ would be moved to a new § 303.302 (see
including cognitive processes and social as follows: (1) services that are surgical earlier discussion under
interaction,’’ and replacing it with ‘‘in in nature (i.e., the installation of devices § 303.12(d)(13)). The remaining sections
the following developmental areas: such as pacemakers, cochlear implants, in Subpart A would be renumbered
cognitive; physical; communication; or prostheses); and (2) devices necessary accordingly.
social or emotional; and adaptive.’’ This to control or treat a medical or other
condition (e.g., pacemakers, cochlear Subpart B—State Application for a
proposed change more closely tracks the
implants, prostheses, or shunts). Grant
developmental areas described in the
Section 303.14 (IFSP) would be
statute and in §§ 303.16 and 303.300. General Requirements
The definition of ‘‘special amended by—(1) changing the title to
‘‘IFSP; IFSP team;’’ (2) designating the Section 303.100 (Conditions of
instruction’’ would be further amended assistance) would be amended by (1)
existing definition as paragraph (a); and
by revising paragraph (d)(13)(ii) to read making technical changes designed to
(3) adding a new paragraph (b) to
as follows: improve the readability of the section,
specify that the term ‘‘IFSP team means
Planning that lead to achieving the the group of participants described in including adding headings to each
outcomes in the child’s IFSP, including § 303.343 that is responsible for paragraph in the section; and (2) adding
curriculum planning, the planned interaction developing, reviewing, and, if a new paragraph (a)(1)(ii)(B), to clarify
of personnel, and planning with respect to
appropriate, revising an IFSP for an that the information in a State’s
the appropriate use of time, space, and
materials. eligible child under this part.’’ Although approved application that is on file with
parents, public agencies, and service the Secretary must contain ‘‘Copies of
This change would more accurately providers have traditionally used ‘‘IFSP all applicable State statutes, regulations,
reflect ‘‘special instruction’’ as an early team’’ when referring to the and other State documents that show
intervention service, and would ‘‘Participants in IFSP meetings’’ in the basis of that information.’’ This is
improve the readability and § 303.343, the term has never been consistent with the Part B requirements
understanding of the definition. included in the Part C regulations. We in § 300.110(b)(2) and with Part C
Section 303.12(d)(14) (proposed believe that using the term in the text of policy.
§ 303.12(b)(13)) (Speech-language the regulations when describing the
pathology) would be amended by—(1) Statement of Assurances
‘‘IFSP team’s’’ role in implementing
adding ‘‘services’’ to the title, to specific Part C requirements improves Section 303.123 (Prohibition against
conform to the statutory term; (2) the clarity and readability of the commingling) would be amended by
replacing ‘‘oropharyngeal’’ with regulations. deleting the note following that section,
‘‘swallowing’’ each place it appears, to Section 303.18 (definition of ‘‘natural and incorporating the substance of the
more accurately and clearly describe the environments’’) would be revised by note into the text of the regulations.
term used by speech-language incorporating into that definition the This change would strengthen and give
pathologists; and (3) adding a new substance of the provision on natural more explicit meaning to the ‘‘non-
paragraph (b)(13)(iv), related to environments from § 303.12(b) of the commingling’’ requirement.
‘‘Counseling and guidance of parents, existing regulation (discussed earlier in Section 303.124 would be revised by
children, and teachers regarding speech this preamble). adding a new paragraph (c). This
and language impairments,’’ to conform Section 303.19 (Parent) would be provision would codify existing
to the Part B definition. amended by making a technical and Department policy interpreting the test
The note following § 303.12 would be conforming change to the definition in § 303.124(b) regarding the
revised by adding language to clarify (i.e., by adding, after ‘‘A guardian’’ in supplement-not-supplant provision.
that ‘‘qualified personnel’’ who provide paragraph (a)(2), the phrase ‘‘, but not Under paragraph (b), a State must

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‘‘budget,’’ for early intervention The introductory paragraph in the paragraph (c)(2)(ii) clarifies that the
services, at least the same amount of existing § 303.148 would be designated ‘‘records’’ required in this section
State funds that it spent the previous as paragraph (a) (General), and would be include any personally identifiable
year. This is part of an application amended to clarify that the description information about the child, including
requirement, and the Department of policies and procedures to be used to evaluation and assessment information
examines, as part of its application ensure a smooth transition must meet required in § 303.322, and copies of
review, whether the State plans to specified requirements in proposed IFSPs that have been developed and
spend the same amount that it did the paragraphs (b) through (f) of this implemented in accordance with
previous year, on early intervention section. §§ 303.340–303.346. It is important for
services. Paragraph (c) would clarify The substance of existing paragraphs this requirement to be as comprehensive
that, if a State does not, in fact, spend (a) and (b)(1) would be incorporated, as possible with respect to the transfer
the amount it had spent in the previous with minor clarifying changes, into a of information about a child from the
year, a violation of § 303.124 occurs, new paragraph (b), entitled ‘‘Family lead agency to the LEA or other affected
unless one of the exceptions in involvement; notification of local agencies, so that there is no
paragraph (b) applies. educational agency.’’ This new misinterpretation of what must be
We invite comment on whether the paragraph would require that a State’s transmitted, and where consent would
Department should broaden the existing application describe (1) how the be required.
exception to the nonsupplanting families of children served under this The substance of existing paragraphs
requirement in § 303.124(b)(2)(ii) part will be included in transition plans (b)(2)(i) and (ii) would be incorporated,
concerning the uses of funds for which for the children; and (2) how the lead essentially unchanged, under a new
allowance may be made, in order to agency will notify the LEA for the area § 303.148(d), entitled ‘‘Conference to
enable States to use funds to carry out in which an eligible child resides that discuss services.’’
other purposes in the Part C system the child will shortly reach the age of Proposed paragraph (d)(1) would
eligibility for preschool services under describe the procedures for the lead
beyond the construction or equipment
Part B of the Act, as determined in agency to follow to convene a
currently covered.
accordance with State law. conference for the purpose of planning
General Requirements for a State A proposed new paragraph (c) for preschool services for a child eligible
Application (Transmittal of records; parental under this part, and paragraph (d)(2)
consent) would be added, by (1) would describe the steps to be followed
Section 303.140 (General) would be
requiring that the State’s application for a child who may not be eligible for
amended by deleting, in paragraph (a),
under this part include a description of preschool services under Part B of the
the phrase ‘‘in this part,’’ and replacing
the policies and procedures to be used Act.
it with ‘‘in § 303.160’’ (i.e., ‘‘The Existing § 303.148(b)(3) and (4) would
for transmitting records about a child to
statewide system of early intervention be incorporated, essentially unchanged,
an LEA, or any other agency, for the
services described in § 303.160 is in under proposed paragraph (e), entitled
purposes of facilitating the child’s
effect.’’). This change would more transition to preschool or other services, ‘‘Program options; transition plan.’’
explicitly describe what a State must do and ensuring continuity of services for Existing § 303.148(c) would be
to meet the application requirements in the child; and (2) incorporating, with redesignated as new § 303.148(f)
Subpart B. certain clarifications, the provision from (‘‘Interagency agreement’’), and the
Section 303.148 (Transition to the IFSP requirements in § 344(h)(2)(iii) substance of the provision would be
preschool programs) would be regarding the transmission of incorporated, with clarifying changes,
amended, first, by changing the title of information about a child, with parental into the new paragraph. As in the
the section to ‘‘Transition to preschool consent, to an LEA to support the existing regulations, this provision
or other appropriate services,’’ and child’s transition. makes it clear that if the State
making other similar changes to clarify A new § 303.182(c)(2) would be added educational agency (SEA) and the lead
that some children who receive early to clarify that such consent is not agency under this part are not the same,
intervention services under this part required before submitting to an LEA the policies and procedures required
may not receive preschool services directory information about a child (e.g., under § 303.148(a) must provide for the
under Part B of the IDEA; and second, the child’s name, address, telephone establishment of an interagency
by restructuring the section for clarity, number, and age), if the information is agreement between the lead agency and
accuracy, and completeness, including provided for the specific purpose of the SEA, to ensure appropriate
adding, in proposed § 303.148(c), assisting the LEA to implement the Part coordination on transition matters.
provisions from § 303.344(h) that B child find requirements under 34 CFR Section 303.167 (Individualized
require parental consent for the transfer 300.125. This reflects existing family service plans) would be amended
of records for the purpose of a child’s Department policy—that consent is not by—(1) moving the substance of
transition to preschool or other services. required if the transmittal is for child paragraph (c) (on natural environments)
These proposed changes to § 303.148 find purposes. to a new § 303.341(a), and (2) revising
(as described in the following The requirement in § 303.148(a) and the language to clarify that each
paragraphs) have consolidated in one (c) for ‘‘a description’’ of the policies application must include ‘‘Policies and
section all process requirements and procedures on transition to procedures on natural environments
regarding the transition of a child from preschool or other programs would be that meet the requirements of §§ 303.341
the early intervention program under satisfied by submitting the actual and 303.344(d)(3).’’ (See discussion on
this part to preschool or other policies and procedures. (In any event, natural environments included earlier
appropriate services. This restructuring submission of the actual documents is in this preamble.)
of the requirements on transition should required under proposed Section 303.173 (Policies and
be helpful to parents and public agency § 303.100((a)(1)(ii)(B).) procedures related to financial matters)
staff in understanding the requirements, Proposed § 303.148(c)(1) and (c)(2)(i) would be amended by clarifying, in
and should facilitate implementation of use the term ‘‘records’’ in this paragraph (b), the kinds of information
the provisions. requirement. However, proposed about funding resources required in

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§ 303.522 that must be included in each 1993, we included the parenthetical proposed function should be required or
application (i.e., (1) the name of each term ‘‘case management’’ as a left to the discretion of each State.
State agency that provides early transitional term, and to ensure that the
Identification and Evaluation
intervention services, or funding, for change to ‘‘service coordination’’ would
children eligible under Part C, even if not affect services provided under Section 303.320 (Public awareness)
the agency does not receive Part C Medicaid. However, at this point in would be amended by making technical
funds; (2) the specific funds used by the implementing Part C, it is no longer changes to improve the clarity and
agency for early intervention services, necessary to make any reference to readability of the section, and to more
such as State Medicaid or State special ‘‘case management.’’ The Senate Report closely track the statutory language.
education funds; and (3) the intended on Pub. L. 102–119 stated that the term Section 303.321 (Comprehensive
use of those funds). These proposed ‘‘service coordination’’ had been child find system) would be amended
changes are intended to strengthen the adopted in lieu of ‘‘case management,’’ by revising paragraph (b), first, to
regulatory requirements on interagency and added— rename the paragraph ‘‘Policies and
cooperation (see discussion under The committee decided to change the
procedures;’’ and, second, to clarify in
§ 303.523 in this preamble). references in other sections in the legislation paragraph (b)(1), that the requirement to
Subpart D—Program and Service because it agrees with parents that they are ensure that all infants and toddlers who
Components of a Statewide System of not cases and do not need to be managed. are eligible for services under this part
Early Intervention Services The intent of this provision is not to change are identified, located, and evaluated
the policy set out in the current definition of includes ‘‘(i) traditionally underserved
Section 303.300 (State eligibility ‘‘case management’’ in the regulations and groups, including minority, low-income,
criteria and procedures) would be not to affect in any way the authority to seek inner-city, and rural families; and (ii)
amended, as follows: first, by making reimbursement for services provided under highly mobile groups (such as migrant
technical changes, e.g., (1) changing the Medicaid or any other legislation that makes
reference to ‘‘case management’’ services. (S.
and homeless families).’’
title of the section to ‘‘Child eligibility— Section 303.321 would be further
criteria and procedures;’’ (2) making Rep. No. 102–84, p. 19 (1991))
amended by deleting the ‘‘two-day’’
other technical changes to improve the Proposed § 303.302 also would timeline in paragraph (d)(2)(ii), and
readability of the section, including include, as a new § 303.302(a)(2), the revising the provision to read as follows:
adding paragraph headings (e.g., substance of the note following § 303.23, ‘‘Ensure that referrals are made as soon
‘‘General,’’ ‘‘State definition of to clarify that—(1) if a State has an as reasonably possible after a child has
developmental delay,’’ ‘‘Diagnosed existing service coordination system, been identified.’’ In administering the
condition,’’ and ‘‘Children who are at the State may use or adapt that system, Part C program over an extended period
risk’’); and (3) clarifying, in a new so long as it is consistent with the of time, the Department has found that
paragraph (a)(1)(ii), that the State’s requirements of this part; and (2) a it is unreasonable and impractical for
eligibility criteria must meet the public agency’s use of the term service referral sources to be expected to make
requirements in paragraphs (b)–(d) of coordination is not intended to affect referrals in this short of a time. The
§ 303.300. the agency’s authority to seek timeline needs to be sufficiently flexible
Second, § 303.300 would be further reimbursement for services provided to allow for some variation, on a case-
revised by adding a new paragraph under Medicaid or any other legislation by-case basis, for making referrals.
(a)(2) to clarify that the State’s criteria that makes reference to case The introduction of such a tight
and procedures related to child management services. (The note timeline in the 1989 regulations was
eligibility must be on file in the State, following § 303.23 would be deleted.) included to convey the sense of urgency
and be available for public review.
Section 303.301 (Central directory) Proposed § 303.302(d)(8) would in which referral sources should act
would be amended by (1) adding, as a include a new function for service when they identify a child who is
parenthetical statement in paragraph coordinators that involves assisting suspected of having a disability. The
(a)(3), the substance of the note families in—(1) understanding the analysis of the comments to those
following the section (regarding sources of financing early intervention regulations states that—
examples of professional and other services and how to access those Because of the rapidly changing needs of
groups), and (2) deleting the note. sources, and (2) being knowledgeable infants and toddlers, the Secretary believes
A new § 303.302, entitled ‘‘Service about any potential long-term costs to that it is important to establish very short
coordination’’ would be added that families in accessing those sources. This timelines for referring a child for evaluation
would incorporate the substance of the provision, which is similar to the or services. (54 FR 26337, June 22, 1989).
definition of ‘‘Service coordination (case proposed provision under § 303.3(a)(6), Although the two-day timeline proved
management)’’ from § 303.23 (described is important because, as previously to be impracticable, the sense of urgency
earlier in this preamble under stated, families need to know how to conveyed in the initial Part H
§ 303.12(d)(11)). Although the title of access funding for early intervention regulations is still critical. Establishing
current § 303.23 includes the services, and of the consequences of any timeline (e.g., 5 days) may not
parenthetical term ‘‘(case using public or private insurance, so provide a reasonable standard for a
management),’’ we are proposing to that they can make informed decisions referral source to follow in making a
omit that term from the title of proposed about the provision of services for their timely referral; in some cases an earlier
§ 303.302 because it is no longer eligible children under this part. referral may be reasonable, and in other
relevant under this part. The term ‘‘case (Similar language is also included in cases, a later one. Therefore, the concept
management’’ was used in the original current Note 3 following § 303.344.) of ‘‘as soon as reasonably possible’’
‘‘Part H’’ statute and regulations. We have included language in retains the necessary sense of urgency
However, the term was replaced with proposed § 303.302(d)(8) to clarify that without imposing unrealistic and
‘‘service coordination’’ by the IDEA States have the discretion of deciding if unreasonable timelines.
Amendments of 1991 (Pub. L. 102–119). this new service coordination function In monitoring implementation of this
When the regulations implementing is one that must be carried out. We provision, the Department would look at
Pub. L. 102–119 were published in invite comments on whether this a general pattern of referrals in the State.

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Referrals made within a range of two to of the section to more accurately reflect amended by revising the provisions in
five days or even somewhat longer what may happen in both the periodic paragraph (a)(2) on how the evaluation
would be acceptable. However, a review meetings and the annual results would be appropriately
referral pattern that is significantly evaluations of the IFSP. For example, addressed if the person or persons
longer would not meet the spirit of this § 303.342(c) of the current regulation, directly involved in conducting the
requirement, nor would it be in the best which is unchanged in this NPRM, evaluations and assessments is unable
interests of the children served. states that ‘‘A meeting must be to attend the IFSP meeting. The existing
We specifically invite comments on conducted on at least an annual basis to regulations provide three options to
whether the proposed change to the evaluate the IFSP * * *. and, as ensure such a person’s involvement: (1)
referral timeline in this NPRM (i.e., appropriate, to revise its provisions.’’ Participation in a telephone conference
‘‘Ensure that referrals are made as soon (Emphasis added) call; (2) having a knowledgeable
as reasonably possible after a child has Second, § 303.342 would be further authorized representative attend the
been identified’’) is appropriate, or on amended by adding a new substantive meeting; or (3) making pertinent records
what would be a reasonable timeline. provision in paragraph (a)(2) available at the meeting.
Section 303.322 (Evaluation and (Consideration of special factors), as Although options 1 and 2 provide an
assessment) would be amended by adapted from the Part B statute and effective means of addressing the
revising paragraph (a)(1)(ii) to clarify regulations. Several commenters contingency described in the preceding
that the family-directed identification of recommended that the special paragraph, the Department, in its
the needs of each child’s family meets considerations provision from Part B (34 monitoring of this provision, has found
the ‘‘Family assessment’’ requirements CFR 300.346(a)(2)), as adapted, be that option 3 does not, by itself, serve
in paragraph (d). In implementing included in the regulations under this as an effective substitute, because there
§ 303.322, it is important that lead part. In developing each child’s IFSP, it is no assurance that the members
agencies recognize that there is a direct is important that the IFSP team consider present at the IFSP meeting are
link between the requirements in all factors relating to the child’s sufficiently knowledgeable about the
proposed paragraphs (a)(1)(ii) and (d). development and to the services that are evaluation results to appropriately
Individualized Family Services Plans required to meet the identified needs of interpret those records at the meeting.
the child. Although many IFSP teams Thus, § 303.343(a)(2) would be
(IFSPs)
may routinely make these amended by restructuring and revising
Section 303.340 (General) would be considerations in developing a child’s the provision to distinguish between
amended by changing the title of the IFSP, this provision helps to ensure that ensuring either—(1) the person’s
section to ‘‘Definition of IFSP; lead these basic factors will be addressed, as involvement through other means (e.g.,
agency responsibility,’’ and making appropriate, in all cases. through participating in a telephone
other changes, as follows: First, the Because the special considerations conference call); or (2) that the results
existing definition of IFSP in provision under Part B is targeted on of the evaluations and assessments are
§ 303.340(b) would be redesignated as preschool and school-aged children, appropriately interpreted at the meeting,
proposed § 303.340(a) (‘‘Definition of some of the items under that provision by making pertinent records available at
IFSP’’), and would be revised to may not seem to be directly relevant to the meeting, and having a person attend
affirmatively state that each child’s IFSP infants and toddlers with disabilities. the meeting who is qualified to interpret
team is responsible for developing the However, each provision has been the evaluation results and their service
child’s IFSP, as well as determining the adapted, to the extent necessary, to implications. This provision is further
information that is included in the IFSP. apply to children eligible under Part C. revised to make it clear that the person
Second, the provision on lead agency For example, although Braille, as such, who is qualified to interpret the results
responsibility in current § 303.340(c) would not be taught to infants or may be one of the participants described
would be redesignated as proposed toddlers who are blind or visually in § 303.343(a)(1)(i)–(a)(1)(vi).
§ 303.340(b), and would be revised by impaired, there are appropriate pre- These proposed changes would help
adding an introductory clause (‘‘The literacy or readiness activities related to to ensure that the evaluation records are
lead agency in each State must ensure the use of Braille (e.g., the use of tactile appropriately interpreted, and, in most
that—’’). Finally, current § 303.340(a) stimulation and ‘‘raised’’ picture books) cases, without added burden. The
(regarding policies and procedures on that could enhance the child’s ability to proposed change in paragraph (a)(2)(ii)
IFSPs) would be redesignated as learn, and to use, Braille at the would permit, as in the Part B
proposed § 303.340(b)(1), and would be appropriate time in his or her school regulations (34 CFR 300.344(a)(5)), the
revised by replacing ‘‘includes’’ with years. person qualified to interpret the
‘‘has in effect.’’ In all of the factors included under evaluation results to be someone who is
A new § 303.341 (Policies and § 303.342(a)(2), the IFSP team, which already a member of the IFSP team. The
procedures on natural environments) includes the parents, would make operative term in the proposed
would be added. (A description of that individualized determinations, as requirement is a person who is
proposed provision, and the changes appropriate, about the implications of ‘‘qualified to interpret’’ the evaluation
made to the definition of IFSP that affect any one, or more than one, of the factors results. Thus, it is possible that any of
the natural environment provisions, is with respect to the specific early the members of the IFSP team,
included earlier in this preamble.) intervention services that the child is to including the parents, could have the
Section 303.342 (Procedures for IFSP receive. necessary training and experience to be
development, review, and evaluation) Section 303.343 (Participants in IFSP able to perform this function.
would be amended, first, by making meetings and periodic reviews) would In the event that none of the other
technical changes (e.g., changing the be amended, first, by changing the title members of the team is qualified to
title to ‘‘Development, review, and to ‘‘IFSP team—meetings and periodic effectively interpret the evaluation
revision of IFSPs’’, and adding titles to reviews.’’ (See earlier discussion under results, it would be necessary to arrange
paragraphs (a), (a)(1), and (b)). We are § 303.14 regarding the proposed use of for an appropriately qualified person to
proposing to replace the term ‘‘IFSP team’’ in these regulations.) be present, at least for a portion of the
‘‘evaluation’’ with ‘‘revision’’ in the title Second, § 303.343 would be further meeting, or provide other ways to

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ensure that the team is appropriately to the child, if direct services had been the child’s parents that are necessary to
informed of the results of the determined necessary by the IFSP team. support the transition of the child,
evaluations and their service A new § 303.344(e) would be added to whereas the provisions in § 303.148
implications, in order to enable the team clarify that, except as provided in include the administrative functions
to develop a meaningful IFSP. § 303.345, evaluations and assessments and processes that a lead agency must
Section 303.344 (Content of IFSP) required under § 303.322 (including the carry out to ensure effective
would be amended by—(1) adding a functions relating to evaluations and implementation of the transition
new paragraph (b)(2) to specify that the assessments described in the individual requirements.
statement on family information must early intervention services definitions
be based on the family assessment under § 303.12(d) of the current Personnel Training and Standards
required under § 303.322(d); and (2) regulations) must be completed prior to, Section 303.360 (Comprehensive
revising paragraph (c) to clarify that the and in preparation for, conducting an system of personnel development
outcomes must be based on the IFSP meeting for each eligible child (CSPD)) would be amended by making
evaluations and assessments conducted under this part. In monitoring technical changes for improved clarity
under § 303.322(c) and (d). implementation of the IFSP and readability, including restructuring
Although IFSPs for children eligible requirements, the Department has the section and adding paragraph
under this part are required to be based identified instances, as a common headings.
on the evaluations and assessments in practice, in which IFSP meetings were No other changes would be made to
§ 303.322(c) and (d), experience has conducted before a child had been the CSPD requirements at this time.
shown that this does not always occur. evaluated, and the IFSP would list the However, we specifically invite
Thus, it would be appropriate to make basic evaluations and assessments to be comments on the extent to which the
this proposed change in the existing conducted as IFSP services. CSPD requirements under this part
regulations, so that parents and public Section 303.344(e), therefore, should be the same as the CSPD
agencies will be aware of this provides that evaluations and requirements under Part B, especially
requirement. It is important, however, to assessments must be conducted prior to
with respect to ensuring an adequate
recognize that this new provision does the IFSP meeting, to assist the IFSP
supply of qualified personnel. There is
not add an additional burden. team in determining the outcomes and
Section 303.344(d) (Content of IFSP- a defined statutory link between the
services for the child. There, of course,
Early intervention services) would be CSPD requirements in the Part B and
may be situations following the initial
amended, first, by restructuring the Part C programs. However, the specific
evaluation and assessment of a child in
paragraph for clarity and to improve its requirements under each part are
which the IFSP team determines that
readability, including adding headings different in both the statute and the
further evaluations or assessments will
to each redesignated paragraph within implementing regulations.
be necessary during the period in which
that provision (i.e., ‘‘Statement of the child’s IFSP is in effect, in order for Section 635(a)(8) of the IDEA provides
services;’’ ‘‘Frequency, intensity, and the team to make an informed decision that each statewide system of early
method;’’ ‘‘Natural environments— about possible modifications in the intervention services must include a
location of services;’’ and ‘‘Payment services the child is receiving. In such comprehensive system of personnel
arrangements’’). Second, § 303.344(d) situations, a statement to that effect development that meets certain
would be further revised by—(1) would be included in the child’s IFSP, specified requirements and ‘‘that is
clarifying that the IFSP must specify, for and the additional evaluations or consistent with the comprehensive
each service, the frequency, intensity, assessments would be documented by system of personnel development
and method of delivering the service; (2) the IFSP team. In addition, proposed [under Part B of the Act] described in
replacing the substance of the provision § 303.344(e) includes a reference to section 612(a)(14) * * *’’. A
on natural environments with more existing § 303.345, which permits early corresponding requirement on CSPD is
definitive clarifying language; (3) intervention services to be provided included under the Part B requirements
deleting the provision regarding the before the evaluations and assessments in section 612(a)(14) of the Act, which
location of services in paragraph are completed, but sets very specific provides that—
(d)(1)(iii), and the definition of conditions for implementing that The State has in effect, consistent with the
‘‘location’’ in paragraph (a)(3); and (4) provision. purposes of this Act and with section
making other technical changes. (A Section 303.344(h) (Transition from 635(a)(8), a comprehensive system of
description of the changes on natural Part C services), would be redesignated personnel development that is designed to
environments and location of services is as paragraph (i), and would be amended ensure an adequate supply of qualified
included earlier in this preamble in the by moving the substance of special education and related services
personnel that meets the requirements for a
discussion on ‘‘natural environments.’’) § 303.344(h)(2)(iii) (regarding the
State improvement plan relating to personnel
With respect to including a statement transmission of information about the development in subsections (b)(2)(B) and
of early intervention services in a child to an LEA or other relevant agency (c)(3)(D) of section 653.
child’s IFSP, it is appropriate to to § 303.148 (described earlier in this
describe any specific training to be preamble), but making a reference to Thus, in submitting comments
provided to the parents to assist them in that step and the conference step. regarding whether changes are needed
working with their child Proposed § 303.344(i) would be further in the CSPD requirements under this
(§ 303.344(d)(1)). However, the training revised by adding a new paragraph part, some of the questions to be
may not take the place of providing (i)(2)(iv), to provide that the IFSP addressed would be:
direct service to the child, if the IFSP include ‘‘Other activities that the IFSP • Is there a need to amend the CSPD
team determines that direct services are team determines are necessary to requirements under these Part C
needed. For example, a State could not support the transition of the child.’’ regulations?
have a practice of having an The changes that are proposed to the • Is there a shortage of qualified early
occupational therapist train the parents transition provisions in § 303.344(i) intervention personnel that needs to be
to work with their child as an help to clarify that the steps required in addressed through the CSPD
alternative to providing direct services the IFSP are activities for a child and requirements in this part?

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• Should the Part C CSPD be Because of the interest in having a initiated.’’ (62 FR 55045, October 22,
amended to more specifically address seamless system of services from birth 1997). Consistent with section 639(a)(8)
the issue of ensuring an adequate through the early childhood years, and of the Act (which provides that the
supply of qualified early intervention the close link between the types of procedural safeguards under Part C
services personnel? And, if yes, should personnel under both the Part B and must include ‘‘the right of parents to use
the provisions in the Part B regulations Part C programs, having the same mediation in accordance with section
(34 CFR 300.381) be adapted, or should personnel standards requirements under 615(e) * * *’’), the Part B provision in
separate provisions be added? both programs would increase the § 300.507(a)(2) should be added to the
• Should other areas be addressed, likelihood of having a more effective Part C regulations.
similar to the improvement strategies in and efficient mechanism to help ensure This proposed provision on mediation
34 CFR 300.382? that personnel necessary to carry out the simply expands on the language in
Attachment 3 to this NPRM includes purposes of each part are appropriately § 303.419(a)(1), which provides that
the CSPD requirements under the Part B and adequately prepared and trained. mediation ‘‘at a minimum, must be
regulations, to assist commenters in Subpart E—Procedural Safeguards available whenever a hearing is
responding to the questions listed in the requested under § 303.420.’’ Therefore,
preceding paragraphs. Section 303.401(a) (Definition of proposed § 303.420(b) does not add an
Section 303.361 (Personnel standards) consent) would be amended by adding additional burden, but simply makes
would be amended by making changes a new paragraph (a)(3)(ii) to provide that clear, within the context of the required
necessary to ensure that the personnel if a parent revokes consent, that ‘‘due process procedures’’ in § 303.420,
standards requirements under this part revocation is not retroactive (i.e., it does that the lead agency has a responsibility
fully conform to those requirements in not negate an action that has occurred to inform parents about the availability
the Part B regulations (34 CFR 300.136). after the consent was given and before of mediation at the time the parents
Several commenters in responding to the consent was revoked). request a hearing.
This provision was adopted from the
the 1998 notices recommended that Section 303.420 would be further
definition of consent in the Part B final
these changes be made, and the amended by replacing the term
regulations (34 CFR 300.500). If parental
Department believes that it is ‘‘complaint’’ (or ‘‘individual child
consent is required for a service or
appropriate for these requirements to be activity, it would be impractical to complaints’’) with ‘‘due process hearing
the same under both parts. Therefore, allow a parent to retroactively revoke or hearings’’ throughout this section.
the following changes would be made: that consent. Thus, once the parents of Similar changes would be made in
• Paragraph headings would be added a child consent to a decision (e.g., for an § 303.402, and in §§ 303.421–303.425, as
to parallel the paragraph titles under evaluation or provision of services), any reflected in the descriptions included
Part B, and for improved readability. revocation of their consent once the later in this preamble.
• The substance of the note following action to which they consented has been It is important to make this change
§ 303.361 would be added to the text of carried out will not affect the validity of because the use of the single word
the regulations as policies and the action. The analysis of comments to ‘‘complaint’’ to refer to two different
procedures under a new paragraph the final Part B regulations state that types of administrative proceedings
(b)(2) and (b)(3). Proposed paragraph ‘‘Since the non-retroactivity of a under this part has often created
(b)(2) would provide that each State parent’s revocation is based on the confusion for both parents and public
may determine the specific occupational Department’s interpretation of the agencies. We believes that it would be
categories required for early statute, and is important to make clear helpful in resolving this confusion if the
intervention services, and revise or to all parties, it should be set forth in term ‘‘complaint’’ would be used only
expand those categories as needed. the regulation itself.’’ (64 FR 12606, with respect to the State complaint
• Proposed paragraph (b)(3) would March 12, 1999). procedures required under §§ 303.510–
state—‘‘Nothing in this part requires a Section 303.420 (Due process 303.512, and that the term ‘‘due process
State to establish a specified training procedures) would be amended, first, by hearing’’ would be used for parents who
standard (e.g., a masters degree) for redesignating existing paragraph (a) are requesting a hearing under
personnel who provide early (adopting the Part B due process §§ 303.420–303.425.
intervention services under Part C of the procedures) and paragraph (b) The prior notice provisions under
Act.’’ (developing specific Part C due process § 303.403(b) require that when a public
• A provision from the policies and procedures for this part) as paragraphs agency gives written notice to the
procedures in the Part B regulations (34 (a)(1) and (2); and, second, by adding a parents of any action it is proposing or
CFR 300.136(b)(4)) would be new paragraph (b) (on mediation), refusing to take, the agency must inform
incorporated, without change, as a new which provides that if a parent initiates the parents about both—(1) the due
paragraph (b)(4) under the policies and a hearing under paragraph (a)(1) or process hearing procedures in
procedures for this part. That provision (a)(2), the lead agency must inform the §§ 303.420–303.425, and (2) the State
clarifies that— parent of the availability of mediation. complaint procedures under
(4) A State with only one entry-level This proposed provision on mediation §§ 303.510–303.512. The parents would
academic degree for employment of would be added to conform to a then be able to determine which method
personnel in a specific profession or corresponding provision on mediation or methods of redress they might pursue
discipline may modify that standard, as in § 300.507(a)(2) of the Part B if there is a dispute about any of the
necessary, to ensure the provision of early regulations. The preamble to the 1997 matters in § 303.403(a) (regarding the
intervention services without violating the Part B NPRM stated that ‘‘the Secretary identification, evaluation, or placement
requirements of this section. of an eligible child, or the provision of
would interpret the requirement of
Section 303.361(g) (Policy to address section 615(e)(1) that mediation be appropriate early intervention services
shortage of personnel) would be available whenever a hearing is to the child and the child’s family).
amended by adding, as a new paragraph requested, as requiring that parents be The note following § 303.420, which
(g)(2), provisions from Part B regulations notified of the availability of mediation describes the differences between two
(34 CFR 300.136(g)(2) and (3)). whenever a due process hearing is types of administrative complaints,

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would be removed because it would no In proposed § 303.519, the those State funds are treated the same as
longer be relevant. introduction from current § 303.520(a) is all other State funding sources for
Section 303.421 (Appointment of an incorporated as new § 303.519(a); new purposes of the supplanting test, i.e.,
impartial person) would be amended paragraphs (a)(1)(i) and (a)(1)(ii) would they must be counted as part of total
by—(1) changing the title to ‘‘Impartial reference the applicable provisions for State and local spending for early
hearing officer;’’ (2) replacing States’ policies on payment for services, intervention. Income from family fees,
‘‘complaint’’ with ‘‘dispute’’ in depending on whether or not the State on the other hand, would not be part of
paragraph (a)(2); and (3) replacing, in has a system of payments. Section State and local spending for purposes of
paragraph (b)(1), ‘‘the person appointed 303.519(a)(1)(ii) would also require that § 303.124.
to implement the complaint resolution a State without a system of payments Finally, this proposed regulation adds
process’’ with ‘‘a person who serves as have a policy stating that all services are § 303.519(d), governing the use of Part B
a hearing officer in accordance with this at no cost to parents. Proposed funds for infants and toddlers. This
section.’’ paragraph (a)(1) contains the provision proposed paragraph would require a
Section 303.422 (Parent rights in regarding interagency agreements from State policy in order to use Part B funds
administrative proceedings) would be current § 303.520(a)(2). to serve infants and toddlers. Currently
amended by changing the title to IDEA section 632(4)(B) provides that several States do use Part B funds, in
‘‘Parent rights in due process hearings;’’ services must be ‘‘provided at no cost, addition to their Part C funds, to serve
and by replacing ‘‘administrative except where Federal or State law infants and toddlers. Without a policy,
proceedings’’ with ‘‘due process provides for a system of payments by however, as to which children will be
hearings’’ in the text. families, including a schedule of sliding served with Part B funds, it is
Section 303.423 (Convenience of fees.’’ Thus, if there is a payment system impossible for the Department to
proceedings; timelines) would be under either State law or Federal law, monitor (or for the State to monitor at
amended by replacing ‘‘proceedings’’ services need not be ‘‘at no cost.’’ Under the local level) whether infants and
with ‘‘hearings’’ in the title; and proposed §§ 303.519 and 303.520, the toddlers for whom Part B section 611
replacing ‘‘complaint or ‘‘complaint State must affirmatively designate in its funds are spent in fact are receiving
resolution process’’ with ‘‘due process policies whether it is including, in its everything they are entitled to under
hearing.’’ ‘‘system of payments,’’ various existing both Part B (including a free appropriate
Section 303.424 (Civil action) would payment systems that families may be public education) and Part C, as
be amended to make it clear that the subject to. This will provide more required.
section only applies if a party is clarity for families, policy-makers, and In proposed § 303.519(d), the State
aggrieved by the findings and decision Federal monitors, as to which fees, if policy would need to—(1) assure that
in a due process hearing. any, families must pay under the State’s infants and toddlers receiving services
Section 303.425 (Status of child early intervention system. paid for with Part B funds receive a free
during proceedings) would be amended Under this proposed regulation, appropriate public education in
by—(1) replacing, in paragraph (a), current paragraphs (c) and (d) of accordance with all Part B requirements;
‘‘complaint under this subpart’’ with § 303.520 become paragraphs (b) and (c) and (2) specify what category, age
‘‘administrative or judicial proceeding of § 303.519. The only change to current group, or other segment of all eligible
involving a request for a due process paragraph (c) is a technical one, deleting infants and toddlers will be served with
hearing under 303.420;’’ (2) replacing the reference to a State’s fifth year of Part B funds and therefore receive
‘‘complaint’’ with ‘‘proceeding’’ in participation. New § 303.519(c)(2) FAPE. Under this second requirement
paragraph (b); and (3) adding a new provides that, although income (in proposed § 303.519(d)(2)), it would
paragraph (c) to provide, consistent with generated from fees under a system of not be acceptable, for example, for a
existing Department policy, that the payments, such as fees from a sliding State to submit a number indicating
pendency provisions of this section do fee scale, do constitute program income how many children would be served,
not apply if a child is transitioning from under 34 CFR 80.25, States are based on the amount of Part B section
early intervention services under Part C authorized to add such income to their 611 funds available; States must
to preschool services under Part B. grant, rather than being required to designate a specific identifiable
Subpart F—State Administration deduct such program income from the subgroup of eligible children (e.g., all
allowable costs of the grant. States are two-year-olds, or all two-year-olds with
General encouraged to use the fee income to deaf-blindness). In the case of section
Section 303.501 (Supervision and augment their Part C grant. 619 funds, the State would identify
monitoring of programs) would be Current § 303.520(d)(2) would be whether all two-year-olds who turn
amended by changing the title of revised, in proposed § 303.519(c)(3), to three during the school year will be
paragraph (b) from ‘‘Methods of clarify that, in addition to served, or which group will be served if
administering programs’’ to ‘‘Methods of reimbursements from Federal funds, if a it is to be fewer than all.
ensuring compliance,’’ and by making a State receives and spends payments Proposed § 303.519(d)(1)(ii) and (iii)
similar change in the text. from private insurance plans, those reflect statutory requirements and
funds are not considered ‘‘State and longstanding Department policy. First,
Policies and Procedures Related to local funds’’ for purposes of the whenever funds received under IDEA
Financial Matters nonsupplanting requirements in section 611 are used for infants and
These regulations would add a new § 303.124. Although not reflected in the toddlers, requirements of both Parts B
§ 303.519, containing much of previous parallel Part B regulation and C apply with respect to serving
§ 303.520 (Policies related to payment (§ 300.142(h)(2)), this policy applies those children. While Part B applies
for services). Proposed § 303.520 would equally to insurance payments received because of the use of Part B funds, Part
address States that have a system of by a State under both Parts B and C. C applies for all States that apply for
payments, and proposed § 303.521 If a State, however, uses State funds and receive Part C funds, because all
would address the use of public or from a State public insurance source, eligible infants and toddlers are covered
private insurance in financing early such as the State share of Medicaid by Part C, regardless of the funding
intervention services. costs, for early intervention services, sources used for a particular child,

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except if IDEA section 619 funds are Thus the responsibility for oversight of that is unable to pay the fee (current
used. Second, if funds under section fees, whether local or State-imposed, § 303.521(b)(3)(ii), proposed
619 are used, which is permissible rests with the lead agency. § 303.520(c)(2)), or for a service that
under the statute for two-year-olds who Under proposed § 303.520(b), a must be at no cost, such as service
will turn three during the school year, system of payments may contain one or coordination (current § 303.520(b),
the statute requires that only Part B both of the two types of applicable proposed § 303.520(c)(1)).
applies, and not Part C (IDEA section fees—(1) fees established under State In addition, under this proposed
619(h)). law specifically for early intervention regulation, it is entirely optional for a
A related provision regarding the use services, such as sliding fee scales; and State to include public insurance access
of Part B funds is added in proposed (2) cost participation fees (e.g., co-pay or fees in its system of payments; under
§ 303.520(c)(3). (See discussion later in deductible amounts) required under proposed § 303.521(e), States may
this preamble). existing State or Federal law to access choose to use Part C funds to pay such
Proposed § 303.519(e) adopts the State or Federal insurance programs in co-pay or deductible amounts for
‘‘construction’’ phrase from the Part B which the family is enrolled. families, as an incentive for families to
regulations, 34 CFR 300.142(i). The first type of fee is one established agree to access their insurance for early
for the early intervention system, as intervention purposes. Such use of Part
System of Payments Provisions
opposed to fees that are broader in C funds does not violate the ‘‘payor of
Proposed § 303.520 describes a system scope, such as Medicaid fees. This first last resort’’ requirement under Part C of
of family payments used by a State to type of fee includes the sliding fee IDEA.
finance early intervention services, and scales based on family income that are Proposed § 303.520(b)(2) applies not
the requirements of the corresponding currently in use in many States. only to Federal public insurance
State policy. A system of payments is a Although a sliding fee is more equitable programs (such as Medicaid), but to
written State policy that—(1) meets the than a flat fee (which penalizes lower- State-funded, non-Federal insurance
requirements of proposed § 303.520, and income families more heavily), States plans as well, as long as the payments
(2) describes the fees or costs that will have discretion, under this proposed are required by State law. Again, while
be borne by families who receive regulation, as to the type of fee they there is no requirement that the exact
services under the State’s early implement. dollar amount be specified in a State or
intervention system. The statute, however, specifically Federal statute, proposed § 303.520(b)(2)
A system of payments may not states that a system of payments is to be covers programs for which State or
include payments by an insurance plan, established under ‘‘Federal or State Federal law authorizes or requires
whether public or private, as opposed to law * * *’’ To be established under family payments.
payments by a family to access the ‘‘State law,’’ the system must be Proposed § 303.520(c) requires
benefits of the plan. Parties in some codified in State statute or otherwise (through § 303.520(d)(1) and § 303.173)
States have argued that a State can have the force of law; a policy that is a State with a system of payments to
include, as part of a system of payments, included with a State’s Part C submit an assurance that no fees will be
actual benefits paid by an insurance application but not codified does not charged in three different situations.
plan (and require families to assign qualify. The actual dollar amounts need This paragraph contains provisions
benefits to the State). The statute, not be codified, as that can change, but taken from current §§ 303.520,
however, specifies a ‘‘system of the basic payment system must be 303.521(b), and 303.521(c), collecting in
payments by families,’’ which does not authorized or enacted by State law. one place the circumstances under
include an insurance plan payment to a Thus, a State may already have in which States may not charge any fees
State. existence a sliding fee scale for early for services. It would also clarify that
Thus, in a State with a system of intervention services; if part of State those situations overrule the existence
payments, e.g., a sliding fee scale, while law, that fee scale would fall under the of a system of payments. For example,
parents can meet their State fee description in § 303.520(b)(1), and be in a State with a system of payments, if
obligation in any way they choose, part of a State’s system of payments. a family is unable to pay the fee, or if
including using their insurance to pay The State would need to ensure, a service must be at no cost to parents,
the fee, a State could not, under this however, that its written policies such as service coordination, the State
proposed regulation, require parents to include the information required in may not apply its fees in that situation.
access their insurance plan (i.e., require proposed § 303.520(c) and (d). Proposed § 303.520(c)(1) contains the
parents to assign benefits to the State or Under ‘‘Federal law,’’ some public exact language as current § 303.521(b),
provider) as part of its ‘‘system of insurance programs such as Medicaid, with the title ‘‘Functions not subject to
payments.’’ Although insurance benefits CHIP, and TRICARE, may include fees’’ changed to ‘‘Functions at public
paid by a plan can not be considered various forms of family cost expense.’’ This provision lists the State
part of a system of payments, they are participation, such as co-payments or functions that, under longstanding Part
an important source of funding for early deductible amounts. Under C regulations, must always be at no cost
intervention services, as recognized by § 303.520(b)(2), if a State wants to access to the family: Child find, evaluation and
this proposed regulation. the benefits of public insurance assessment, service coordination, IFSP
Proposed § 303.520(a)(2) states that it programs for covered families needing development, and implementation of
is the lead agency’s duty to ensure early intervention services under Part C, the statewide system, including
compliance with the State system of and wants families to pay the applicable procedural safeguards.
payments. Under Part C, unlike Part B, co-pay or deductible amounts, the State Proposed § 303.520(c)(2) contains the
the lead agency is the grantee as well as could designate, as part of its system of rule from current § 303.520(b)(3)(ii)
the program administrator; there are no payments, those required fees as part of concerning a family’s inability to pay.
subgrants. Although the lead agency its system of payments. Proposed § 303.520(c)(3) is derived from
may enter into contracts or make other As proposed § 303.520(c)(2) makes current 303.521(c), and clarifies it.
arrangements for providing services, it clear, however, such fees, even though Under this provision, ‘‘birth-mandate
retains all of its responsibilities as included by a State in its system of States’’ may not charge fees, unless the
grantee (see §§ 303.500 and 303.501). payments, can not be applied to a family fees are for services that are not part of

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FAPE. For example, if a State has a law the eligible child’s disability. In other would apply to the determination of a
guaranteeing FAPE from birth, and a words, family income would be family’s position on a sliding fee scale.
particular child’s IFSP contains discounted by the family’s expenses for Proposed § 303.520(e) discusses
additional, non-FAPE services such as the child, that are due to the disability. procedural safeguards regarding
respite care, the family could be charged States are free, however, to use payments by families. States with a
under a sliding fee scale only for those criteria that deduct more expenses from system of payments must give families
non-FAPE early intervention services. income. For example, for reasons of written notice of their applicable
The use of Part B funds is also convenience, a State may choose to use policies on the matters covered in
addressed in proposed § 303.520(c)(3), families’ Federal income tax returns and § 303.520, which includes the services
in response to many commenters’ judge all families by ‘‘taxable income,’’ that must be at no cost, the types of fees
requests to address the use of Part B from which medical expenses have in the State’s system, and the State’s
funds for early intervention services. already been deducted. States may also guidelines for ‘‘inability to pay,’’ so that
These commenters requested that States use other methods of judging income, families are aware of their rights.
be permitted to establish sliding fee such as using families’ existing The notice required by proposed
scales, even though the State uses Part documentation from other aid programs. § 303.520(e) may be incorporated into
B funds to pay for some early As a general rule, the same standard the notice given to the families under
intervention services. Proposed should be used for all families § 303.403, or the State may create a
§ 303.520(c)(3) therefore applies to a throughout the State, although a State separate notice for this purpose. The
State that uses Part B section 611 funds may choose to take into consideration notice must be given, however, before
for infants and toddlers in accordance extraordinary circumstances (for services begin, and cannot delay the
with proposed § 303.519(d) (State policy example, a family whose house just provision of services.
regarding use of Part B funds). A State burned down may not have the ‘‘ability Proposed § 303.520(e)(3) clarifies a
may still establish a State system of to pay’’ that appears on paper). family’s options for contesting a fee
payments, even if it uses Part B section After analyzing the family’s finances, imposed, or contesting a State’s
611 funds to pay for some services for the State may apply a threshold amount, determination of the family’s ability to
infants and toddlers. However, the State for example, 150% of the poverty level, pay. Families have the right in these
may not charge fees for any service that below which families are deemed circumstances to file for a due process
is part of a child’s free appropriate ‘‘unable to pay.’’ We invite comments hearing, agree to mediation, or file a
public education, which is required on how States would implement this State complaint.
whenever Part B funds are used. All of Some States have offered parents an
proposed regulatory requirement in a
the requirements of Part B, including ‘‘at additional option, designed by the State,
practicable way, and how it compares to
no cost,’’ apply whenever Part B funds in order to resolve more quickly these
current practice in States with fee
are used. A State, therefore, would need financial issues. Because the State-
scales. We also invite comment on
to distinguish between those services designed options are often less formal,
whether the scope of this provision is
that are part of a child’s FAPE, to which less time-consuming, and less expensive
appropriate, or whether it should be
the fee scale would not apply, and other than the existing options under this
more limited in the scope of family
services. If a State uses funds under part, States are encouraged to offer their
expenses that are taken into account (for
section 619 for two-year-olds who will own process. However, State remedies
example, whether expenses should be
turn three during the school year, no may not delay or deny a parent’s
fees are permitted because only Part B, limited to those that result from the
procedural rights under Part C and its
and not Part C applies. eligible child’s disability).
implementing regulations. Thus, a State
Proposed § 303.520(d) contains the Proposed § 303.520(d)(5) applies to
could not require parents to use its own
requirements for State policies in States States that have a fee scale specifically
process as a precondition before filing a
that have a system of payments. States for early intervention services (as
State complaint or requesting a due
have always been required to submit, described in proposed § 303.520(b)(1)).
process hearing. The State must include
with their applications, policies Proposed § 303.520(d)(5)(ii)(A) states
these redress rights in its notice to
regarding funding of services, including that a fee scale established by a State for
parents.
any fee system (§§ 303.173 and early intervention services can not take Section 303.521 (Fees) would be
303.520). Proposed § 303.520(d), into account whether or not a family has amended by deleting the section in its
however, would add clarity and detail insurance. Apparently some States with entirety, and replacing it with a
to those required policies, for those sliding fee scales have been placing proposed new § 303.521, entitled, ‘‘Use
States that do not include this detail families on the top of the fee scale if of insurance,’’ as described in the
currently, to ensure that the public is they have private insurance, without following paragraphs:
fully aware of and understands the regard to family income. This practice
State’s system of payments by families. penalizes the family for having Use of Insurance
Several of the requirements in insurance, while the family may not in Proposed new § 303.521 addresses a
proposed paragraph (d) are in existing fact have the resources to pay such a State’s use of families’ public and
§ 303.520. Proposed paragraph (d)(4) high fee, or may not wish to use their private insurance in funding Part C
adds a requirement that the State insurance because of the associated services. Under this proposed
include in its policies its criteria for long-term costs. To enable the family to regulation, States would have the
judging ‘‘inability to pay.’’ Although the have an actual choice between a State following options:
basis for that determination is left to the fee and using their insurance (see (1) Having no system of payments and
States, this provision would require that proposed § 303.521(b)), States must set providing services at no cost to parents.
the State take into consideration their fees without regard to what a States would need parental consent for
applicable family expenses, using the family’s insurance might pay. use of private insurance or for use of
best available data. We expect that In proposed § 303.520(d)(5)(ii)(B), the public insurance where there is a cost
‘‘applicable’’ expenses would include, same requirement of taking into account to the family.
at a minimum, the family’s documented family expenses as in proposed (2) Having a system of payments and,
and unreimbursed expenses related to § 303.520(d)(4) (‘‘inability to pay’’) if it includes a sliding fee scale, giving

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parents the option of paying the pointed out what they perceive to be a Medicaid and the parents refused, this
applicable fee or fees or using their conflict between the ‘‘payor of last would effectively add an additional
private insurance. resort’’ requirement and the ‘‘no cost’’ eligibility test for the child that is not
The Department had proposed requirement. In States where there is no justified by the statute. For families
provisions on the use of private system of payments, for example, and already enrolled, however, or who
insurance in its October 22, 1997, the use of a family’s private insurance voluntarily enroll in public insurance
Notice of Proposed Rulemaking (NPRM) would entail costs for the family, then programs, States may access that
(see 62 FR 55026–55123, 34 CFR to require use of that insurance would insurance to finance early intervention
303.520(d)). In that NPRM, the violate the ‘‘no cost’’ requirement, while services, as provided in proposed
Department requested comments on the to use Part C funds and not the § 303.521(b).
proposed provision and on the related insurance would appear to violate the Proposed § 303.521(b) addresses a
issue of public insurance proceeds. The ‘‘payor of last resort’’ requirement. State’s use of a family’s public
final regulations published on March (Under Departmental policy, however, a insurance. Many commenters suggested
12, 1999 did not contain the insurance State does not violate ‘‘payor of last that, in States that ensure services at no
provision. Instead, the preamble noted resort’’ if it uses Part C funds after cost to families (or without a system of
that ‘‘the policy will not be finalized making all reasonable attempts to secure payments), States be prohibited from
until more thorough examination of the other funding, including when parents requiring parents to use public or
issues can be done through the process decline to use insurance.) private insurance. This policy does not
initiated by the April 14 and August 14, The history and purpose of Part C permit States, however, to optimize
1998 solicitations for comments, and in (then Part H) provides support for the resources and use Part C funds as
light of the specific Part C statutory Department’s attempt to balance these ‘‘payor of last resort’’ where there is no
language and framework.’’ (64 FR two policies; while the statute provides cost to the family, as may be the case
12655, March 12, 1999). for a system of payments, the legislative with public insurance. As many other
During that review process, many history shows that Congress was also commenters noted, if deprived of the
groups and individuals submitted concerned that parents be protected ability to access these insurance
comments regarding the use of from costs. See Sen. Rep. 99–315 at 11 resources, States could find it difficult
insurance by States’ early intervention (99th Cong. 2nd Sess. (1986)). financially to continue in the Part C
programs. In addition, in the Clearly, Congress intended that the program.
Department’s administration and funding of early intervention services Proposed § 303.521(b) applies in
monitoring of Part C, it has found through private and public insurance States with or without a system of
confusion and inconsistency would continue when it enacted Part C. family payments. It provides that States
surrounding issues of State financing of What apparently was not envisioned, can require that families access their
early intervention services, particularly however, was the type of catastrophic public insurance, whether it be Federal
regarding the use of sliding fee scales financial losses that some families have or State, as long as there is no cost to
and use of families’ insurance. There is suffered through use of private the family.
a great need for guidelines and clarity as insurance for early intervention Under proposed § 303.521(b)(1)(ii), a
to the legal limits in this area. The services, such as reaching lifetime caps State that wishes to access a family’s
provisions in proposed § 303.521, when a child is still young, with no public insurance proceeds may require
therefore, are the result of examining the further insurance coverage available for the parents to incur out-of-pocket costs
recommendations of commenters; of the child. such as co-payments and deductibles
weighing the costs and benefits to The goal of these proposed under those public insurance programs,
families and to States of the various regulations, therefore, is to assist States only if such costs are included in a
possible interpretations of the statute; in their responsibility to maximize system of payments under
and of determining the most sound various financial resources, using § 303.520(b)(2). Even in those States in
policy consistent with the language and Federal Part C dollars only as a last which such payments are included,
purposes of the Part C statute. resort, while protecting parents from however, parents are still protected from
The Department’s past policy with overly burdensome costs that can make such costs if they are unable to pay
regard to States’ use of insurance is early intervention services prohibitive (which may be likely for many Medicaid
reflected in several Part C policy letters for families. families), or under any of the other
as well as in the October 22, 1997 Proposed § 303.521(a) contains the circumstances listed in § 303.520(c).
NPRM provision. Under that policy, same prohibition as in Part B against The State may also choose to use Part
States were not permitted to access a forcing families to enroll in a public C funds to pay the co-pay or deductible
family’s private insurance without insurance program, such as Medicaid, as amounts, as provided in proposed
consent if such use would entail costs a condition of receiving services. The § 303.521(e), as an incentive for families
to the family. Department received comments both to agree to access their insurance for
As pointed out by many of the supporting and opposing this policy for early intervention purposes. For parents
commenters, the statutory language for Part C. Although it is true, as stated by choosing the option of using their
Part C is different from Part B’s ‘‘at no several commenters, that if States are private insurance (proposed
cost’’ requirement. Under Part C, prevented from requiring families to § 303.521(c)), and for parents with
services must be ‘‘provided at no cost, enroll in Medicaid, they lose a potential private insurance in a State with no
except where Federal or State law funding source, that source was not a system of payments, this may help the
provides for a system of payments by preexisting one for that family, and State in obtaining parent consent to use
families, including a schedule of sliding some families have reasons (cultural, the insurance.
fees.’’ IDEA section 632(4)(B). privacy etc.) for not wanting to enroll in In proposed § 303.521(b)(1)(iii), the
The statute also makes clear that Part such public insurance programs. Department proposes the same criteria
C funds are to be ‘‘payor of last resort;’’ Moreover, if a child, otherwise deemed for a ‘‘cost’’ to families as in the Part B
all other available funds from public or eligible for Part C services by the State, provision on public insurance (34 CFR
private sources are to be used first. See were denied services because the State 300.142(e)(2)(iii)). We particularly invite
IDEA section 640(a). Many commenters wanted the parents to enroll in comment on whether these criteria are

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53824 Federal Register / Vol. 65, No. 172 / Tuesday, September 5, 2000 / Proposed Rules

equally applicable to families with system charges a family a fee equal to protections in § 303.520(c) apply. Thus
infants and toddlers. one-third the cost of the service, the a family that has private insurance may
In the majority of cases, use of State can only bill the Medicaid or other be ‘‘unable to pay,’’ under the State’s
Federal, State, or local public insurance public insurance for the remaining two- definition of that term, and the option
programs by a State to provide or pay thirds. would not apply to that family. Services
for a service to a child will not result in For private insurance, many would then be at no cost to the family
a current or foreseeable future cost to commenters suggested, as a way to and the State would need consent to
the family or child. For example, under balance the competing interests of the access the family’s private insurance
the Early Periodic Screening, Diagnosis State’s ‘‘payor of last resort’’ (under proposed § 303.521(d)).
and Treatment (EPSDT) program of responsibility and the ‘‘at no cost’’ Proposed § 303.521(c) would require
Medicaid, potentially available benefits provision of the statute, that in States States to give parents this option for
are only limited based on what the with a system of payments, States ‘‘each service’’ for which the State
Medicaid agency determines to be should first determine what the family charges fees, rather than for each
medically necessary for the child and has to pay, then let the parents decide incidence of a service. Thus, when the
are not otherwise limited or capped. whether to use their private insurance IFSP is first written, and thereafter for
Many infants and toddlers with or pay the fee. This policy of parental any change in the frequency or type of
disabilities who are eligible for public choice, which is consistent with the service, the State would need to give the
insurance programs are eligible for Department’s past Part C policy on parents this option. If the parent’s
services under the EPSDT program. private insurance, has been adopted and insurance does not cover a particular
Where there is no cost to the family or proposed as § 303.521(c) for those States IFSP service, the family pays the
the child, States are encouraged to use that have, under State law, fees applicable fee for that service.
the public insurance benefits to the specifically for early intervention The policy that families cannot be
extent possible. services, as described in proposed forced to use their private insurance, in
The language in proposed § 303.520(b)(1). States with no system of payments, has
§ 303.521(b)(1)(iii)(D) has been changed For such States, proposed § 303.521(c) been adopted in proposed § 303.521(d).
from the corresponding Part B would govern their treatment of all This provision also applies in States
provision, to read ‘‘risk loss of eligibility families who have private insurance. with a system of payments, for
for, or decrease in benefits under, home Under this provision, the State gives the situations covered under § 303.520(c)
and community-based waivers * * *’’ family the option of accessing the (when fees may not be charged), and in
to more accurately reflect the common insurance or paying the applicable fee States whose system of payments
problem for families of children who are directly. Some families with private includes only public insurance co-pays
covered under such waivers, that was insurance, want to avoid long-term or deductibles (fees described in
intended to be addressed by the Part B negative consequences of using that § 303.520(b)(2)). This provision
language. with private insurance, such as therefore applies in all circumstances
Proposed § 303.521(b)(2) further exceeding a lifetime cap or risking except that of a State with a system of
provides that, if any of the listed costs cancellation of insurance; these families payments that includes fees described
apply, the State may still access the may prefer to pay the applicable fee in § 303.521(b)(1), such as a sliding fee
family’s public insurance if it first without using their insurance. Other scale.
obtains written consent under the families may not have such extreme Under this provision, if a State has no
provisions in § 303.401. risks from using insurance, or are able system of payments (and in the other
Proposed § 303.521(b)(3) addresses to negotiate with their insurance applicable circumstances), the State is
the relatively small number of families company and determine an amount the prohibited from using a family’s private
who are covered by both public and company will pay that will avoid these insurance without the parent’s consent.
private insurance. Under this provision, risks. The State can assist families with The provisions governing this consent
in States without a system of payments, this process, either by giving the duty to are the same as the parallel provision in
in order to access the family’s private service coordinators, under proposed Part B, § 300.142(f). The Part B
insurance the State must follow the § 303.302(d)(8), or by otherwise provision requires parental consent for
consent requirements in proposed providing for such assistance under the any use of private insurance, because all
§ 303.521(d). Thus, if a Medicaid- proposed revision to § 303.3 (‘‘Use of services must be at no cost to the family,
enrolled child also is covered by private Funds’’). and use of private insurance entails
insurance, the State without a system of If a family opts to pay the fee, the costs. Similarly, for Part C in a State
payments must choose one of two State cannot then also access the without a system of payments, services
options—either obtain the parent’s family’s insurance to cover the are at no cost and the State must obtain
consent to use the private insurance, or remaining cost of the service, unless the consent to use private insurance.
not use Medicaid to provide the service. family gives consent. Similarly, if a Under proposed § 303.521(d), a State
One way the State might be able to family opts to use its insurance but the needs parental consent for using the
obtain that consent would be to offer to insurance does not cover the entire cost family’s private insurance for each
cover the costs that would normally, of a service, the State could only require separate service in a child’s IFSP. For
under Medicaid, be assessed against the the family to pay the uncovered portion example, if at an IFSP meeting the State
private insurer. Part C funds can be used up to but not exceeding the amount of wants to access the family’s insurance
for this purpose. (See proposed the State fee. Families with no for only the child’s physical therapy,
§ 303.521(e)). insurance would be required to pay the which is to be provided twice a week,
Proposed § 303.52l(b)(4) provides exact amount of the applicable fee the State obtains parental consent for
that, for States with fee scales, the State (subject to the ‘‘ability to pay’’ that use. If, at a subsequent IFSP review,
cannot bill a family’s public insurance requirement), and States could not the physical therapy service is changed
for more than the cost of the service, apply a different standard or different to three times per week, the State must
and can not bill for any amounts for fee scale for families with insurance. obtain new written consent from the
which the parents are responsible under When giving parents the option parents; they need not obtain consent
the fee scale. Thus, if a State’s fee described in proposed § 303.521(c), the for every session of each service. This

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 Federal Register / Vol. 65, No. 172 / Tuesday, September 5, 2000 / Proposed Rules 53825

policy is consistent with the intended several ways. First, the language in The third topic, child find, is
meaning of the corresponding Part B § 303.523(a) would be clarified to proposed as optional for the lead agency
provision, § 300.142(f)(2), but because require the lead agency to enter into an to include in its interagency agreements,
its wording (‘‘Each time the public interagency agreement with any other although States are encouraged to do so.
agency proposes to access * * *’’) has State-level agency involved in the Child find may be an appropriate issue
caused confusion, we propose more State’s early intervention program, to include in agreements between the
detailed language in this Part C whether that involvement is through lead agency and most other relevant
provision. provision of services or through funding State agencies.
This proposed treatment of private to entities that use those funds for early The proposed changes to §§ 303.173
insurance should not lead to a intervention purposes. and 303.523 are intended to strengthen
burdensome change in existing practice Second, the substance of the note the regulatory requirements on
among the States. The Department’s past following § 303.523 would be added to interagency cooperation. The Secretary
policy required, for all States, consent the text of the regulations as proposed has found, through monitoring, that
when there is a cost to the family (and new § 303.523(c)(2), and the note would many States’ early intervention systems
in practice there appears to be virtually be deleted. The substance of the note suffer from a lack of interagency
always some cost). Under the proposed clarifies that, with respect to resolving cooperation, to the detriment of infants
rule, only States without fees such as intra-agency and interagency disputes, a and toddlers with disabilities and their
sliding fees would be required to obtain State may meet the requirement in any families. The interagency requirements
consent; States with a system of way permitted under State law, of Part C are crucial to implementing an
payments that includes sliding fees including (1) providing for a third party actual statewide system that pulls
would give families the option (e.g., an administrative law judge) to together the various existing efforts in
described in proposed § 303.521(b). review the dispute and render a the State.
States are encouraged, however, to decision; (2) assignment of the The Secretary has found, in some
access all available sources of funding, responsibility by the Governor to the States, that political or ‘‘turf-war’’
using Part C funds as a last resort. To lead agency or Council; or (3) having the differences keep agencies from working
this end, some States have worked to final decision made by the Governor. together or even communicating; in
increase the amount of funding by This change would strengthen the others, it is only the lead agency’s lack
public and private insurers, by taking provision regarding dispute resolution of effort that keeps agencies from
steps such as negotiating for changes in in paragraph (c)). coordinating. Although the Department
their State’s Medicaid plan, passing Finally, paragraph (d) of § 303.523, is aware that the existence of a written
State legislation governing private regarding additional components of agreement between agencies does not
insurers, and working with families to agreements, would be revised to ensure that it will be implemented, the
negotiate with, or clarify the limitations reference three specific topics that fact that specific elements would be
of, private insurance coverage. should be addressed if appropriate and required in the agreement should cause
This regulation would make clear, in relevant to the two agencies: transition, the necessary discussions to take place,
proposed § 303.521(e), ‘‘Use of Part C policies on payment for services, and greatly increasing the chances of actual
funds,’’ that a State is able to use Part child find. Regarding transition, current cooperation.
C funds to pay the cost that would § 303.148(c) (proposed § 303.148(f))
otherwise be covered by a third party Subpart G—State Interagency
requires a lead agency that is not the
payer, in order to access the family’s Coordinating Council
State educational agency (SEA) to have
insurance. Proposed § 303.521(e) an interagency agreement with the SEA Section 303.653 (Transitional
contains language taken from the Part B that ensures coordination on the services) would be amended by making
regulations at § 300.142(g). If the State transition of eligible children to Part B technical changes to improve the clarity
fails to obtain parental consent for use services; proposed § 303.523(d) should and readability of the section,
of private insurance (or public reference that requirement. including—(1) changing the title of the
insurance where costs are involved), the Similarly, proposed § 303.523(d)(2) section to ‘‘Transition services;’’ (2)
State may use Part C funds for the would reference the requirement in replacing ‘‘toddlers with disabilities’’
service. In such a situation the State current § 303.520 (proposed with ‘‘eligible children under this part;’’
does not violate the ‘‘payor of last § 303.519(a)(2)) that policies related to and (3) adding ‘‘preschool’’ before
resort’’ provision because it has first payment for services must be reflected ‘‘services under Part B.’’
taken all reasonable steps to secure in the appropriate interagency Executive Order 12866
alternate funding sources. This agreements. This includes both policies
provision also would provide, as in Part on family payments, and payments by 1. Potential cost and benefits
B, that to make it easier for parents to other agencies, as specified in Under Executive Order 12866, we
consent to private insurance use (or to §§ 303.173 and 303.522. Thus, if a State have assessed the potential costs and
choose to use public insurance), a State adopts a system of payments that benefits of this regulatory action.
may use Part C funds to pay co-pay or involves Medicaid co-payments, that The potential costs associated with
deductible amounts. This practice can policy must be in the interagency the proposed regulations are those
also assist States in situations in which agreement with the State Medicaid resulting from statutory requirements
services must be at no cost to the family, agency. The use of funds or the and those we have determined as
due to any of the circumstances provision of services would be relevant necessary for administering this
described in proposed § 303.520(c); by topics for an interagency agreement program effectively and efficiently.
using Part C funds to pay the family’s between the lead agency and any other In assessing the potential costs and
required co-pay or deductible amount, State agency that provides either benefits—both quantitative and
the State avoids a cost to the family. funding or services for early qualitative—of this regulatory action,
intervention purposes (e.g., a Health or we have determined that the benefits
Other Changes to Subpart F developmental disabilities agency, or a would justify the costs.
Section 303.523 (Interagency State Department of Education We have also determined that this
agreements) would be amended in providing Part B funds). regulatory action would not unduly

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53826 Federal Register / Vol. 65, No. 172 / Tuesday, September 5, 2000 / Proposed Rules

interfere with State, local, private, and settings other than the natural appropriate public education. Since
tribal governments in the exercise of environment if the IFSP team States have the discretion to decide
their governmental functions. determines that this is necessary to meet whether to use Part B funds for this
the needs of the child. purpose, this provision will not result in
Summary of Potential Costs and
increased program costs. The provision
Benefits Section 303.519(a)—Policies Related to
may impose a short-term administrative
These regulations have been reviewed Payment for Services
burden on States that choose to use Part
in accordance with Executive Order Section 303.519(a) clarifies that a B funds for infants and toddlers with
12866. Under the terms of the order, the State without a system of payments disabilities and do not currently have a
Secretary has assessed the potential must have a policy stating that all written policy on the use of these funds
costs and benefits of this regulatory services are at no cost to parents. Office for this purpose. However, we believe
action. of Special Education Programs (OSEP) that most States would develop a
monitoring activities indicate that some written policy for administrative
Benefits and Costs of Statutory Changes
States, local agencies, and local reasons, regardless of the existence of
Following is an analysis of the costs programs are charging for services, even this requirement. In addition, the short-
and benefits of the most significant though the State has not adopted a term burden of developing a written
changes in the regulations for the Grants system of payments. Current IDEA policy is offset by the long-term positive
for Infants and Families program (Part section 632(4)(B), which is the same as benefit derived from having a written
C). In conducting this analysis, the prior section 672(2)(B), provides that policy. A clear policy will help reduce
Department examined the extent to services must be ‘‘provided at no cost, confusion among State and local
which changes made by these proposed except where Federal or State law education agencies as to which children
regulations add to or reduce the costs provides for a system of payments by will be served with Part B funds, and
for State lead agencies and others as families, including a schedule of sliding reduces the potential for costly audit
compared to the costs of implementing fees.’’ Because this change in the findings regarding the proper use of Part
Part C under the previously published regulations is a clarification of, rather B funds. States, at their discretion, may
regulations. Variation in practice from than a change in the law, no cost impact also use Part B Preschool Grants
State to State makes it hard to predict is assigned to this requirement. program funds to provide a free
the effect of these changes. However, appropriate public education to two-
based on this analysis, the Secretary has Section 303.519(c)—Nonsupplanting
Requirement year-olds who will turn 3 during the
concluded that the changes included in school year. IDEA, section 619(h)
these regulations will not, on net, Under proposed § 303.519(c)(3), the provides that, if a State uses Part B
impose significant costs in any one year. provisions of current § 303.520(d)(2) Preschool Grants funds for two-year-
An analysis of specific provisions would be revised to clarify that, in olds in this instance, only Part B
follows: addition to reimbursements from applies. According to a May, 1999
Federal funds, if a State receives and ‘‘section 619 Profile’’ study by the
Section 303.341—Policies and
spends payments from private insurance National Early Childhood Technical
Procedures on Natural Environments
plan, those funds are not considered Assistance System (NECTAS), as of
Section 303.341 of the proposed ‘‘State and local funds’’ for purposes of fiscal year 1999, approximately 22
regulations clarifies that decisions on the nonsupplanting requirements in States had developed or were
natural environments, and any § 303.124. This provision provides a developing policies on the use of
justifications needed, are made by the benefit to States by alleviating them of Preschool Grant funds for these
IFSP team and are made separately for the requirement to align State funding children.
each service to be provided to the child. with reimbursements for services
It also clarifies that services may be rendered from private insurance that Section 303.520(b)—Establishment of a
provided in a setting other than a will fluctuate from year to year System of Payments in State Law or
natural environment, such as a center- depending on factors such as the Regulation
based program or other setting number of parents who have private Proposed § 303.520(b) specifies that a
appropriate to the age and needs of the insurance, whether the particular system of payments may contain either
child, if appropriately justified based on services provided are eligible for fees established specifically for early
the child’s needs. Over 200 of the 328 reimbursement, and variation in intervention or participation fees
comments received by the Department reimbursement rates. Those factors are required to access State or Federal
on the Part C regulations expressed not under the control of the State agency insurance programs. This proposed
concern about the provisions related to and are not budgeted items. paragraph further provides that the
natural environments. Questions raised system of payments must be established
by many of these commenters indicated Section 303.519(d)—Use of Part B under State law and the participation
that there is confusion as to what is Funds fees authorized or enacted by State or
required and that the provisions were Section 303.519(d) would require Federal law. This provision is being
being misinterpreted to mean that States proposing to use funds under Part added to the regulations to ensure that
services could only be provided in the B to serve infants and toddlers to have States are aware of and have fully
home of an eligible child or in a written policy regarding the use of considered policies that will have cost
community settings in which children Part B funds that identifies the age range implications for State agencies and
without disabilities participate. No cost or other characteristics of the groups to consumers, reduce the potential for
impact is assigned to this clarification be served. A written policy is necessary arbitrary changes in policy, and improve
since the provisions do not represent a in order for OSEP to monitor the States the ability of the Federal Government to
change in policy or impose new and the States to monitor at the local monitor compliance. It will also provide
substantive requirements. However, the level to ensure that children for whom more clarity for families, and policy
proposed clarification should benefit Part B funds are spent are receiving makers as to which fees, if any, families
both families and providers by making everything they are entitled to under must pay under the State’s early
it clear that services may be provided in both Part C and Part B, including a free intervention system and reduces

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potential confusion over which policies include their criteria for judging Intervention Longitudinal Study
must be authorized by State statute or ‘‘inability to pay’’ in their policies (NEILS) indicates that approximately 57
regulations versus those that can be submitted to OSEP. Most of the percent of the families participating in
issued administratively. To date, a total approximately 18 States that have Part C have some form of private
of 49 of the 56 Part C lead agencies systems of payment do not currently insurance, this provision could result in
reported information for fiscal year 2000 include their guidelines for judging a shift of costs from families to the
on the status of their systems of ‘‘inability to pay’’ in their policies States to the extent that States are
payment. This data indicates that 18 of submitted to OSEP. We believe these currently taking insurance into account
these States have policies related to criteria should be part of the official, in determining a family’s ability to pay.
systems of payment. Of these States, 16 public policies of the States to ensure While we anticipate that there will be
had policies established under State law that the criteria are administered no net change in the cost to society, we
or regulations. Currently it appears that uniformly, parents know what criteria particularly invite comments on the
only two States would be affected by are being used to determine their ability impact of this provision.
this change. We believe that the benefits to pay, and the requirement is
Section 303.520(e)(3)—Procedural
described above will offset any burden efficiently administered and monitored.
Safeguards
associated with establishing these The resultant burden to the State in
policies in State law or regulations that developing or submitting criteria for Proposed § 303.520(e)(3) sets out the
may be experienced by these two States judging inability to pay is minimal procedures for redress if a parent wishes
or other States deciding to adopt compared to the anticipated benefit of to contest the imposition of a fee.
systems of payment in the future. The having clear guidelines for families and Families have always had the right to
requirement also will result in providers affected by this provision. seek mediation, file for a due process
consistent practice among all the States. hearing, and file a State complaint.
Sections 303.520(d)(4) and However, the Department is concerned
Section 303.520(c)(3)—States That 303.520(d)(5)(ii)(B)—Consideration of that some Part C families may not be
Provide FAPE to Infants and Toddlers Applicable Family Expenses aware that these rights apply to the
With Disabilities Proposed § 303.520(d)(4) on judging imposition of a fee or a State’s
Currently, eleven of the 56 States and ability to pay, and § 303.520(d)(5)(ii)(B) determination of a family’s ability to
Outlying Areas have legislation on sliding fee scales would require that pay. This section clarifies that these
requiring that FAPE be provided to States take into consideration applicable rights apply to this situation. Since the
some or all children with disabilities family expenses, using the best available procedural safeguards under Subpart E
beginning at birth, and an additional data. The cost to States of this change (or the Part B hearing procedures if the
State requires that FAPE be provided to is indeterminate because States will State has adopted them) already apply,
children with disabilities beginning at have flexibility to determine how they we are not ascribing a cost impact to
age 2. Section 303.521(c) of the current will address this requirement, including this provision.
regulations provides that States with the extent to which expenses would be
Section 303.521—Prohibition Against
mandates to serve children from birth considered in determining the family’s
Mandatory Enrollment in Public
may not charge parents for any service ability to pay. While we expect that
Insurance Programs
required under that law that are there may be some cost to States, the
provided to children under Part C. New Department believes that there is a Proposed § 303.521(a) provides that
§ 303.520(c)(3) replaces § 303.521(c) and direct offsetting benefit to society by no State may require parents to sign up
modifies that provision to clarify that ensuring that families are not unduly for or enroll in a public insurance
the State may establish a system of burdened or that children with program in order for their child to
payments for other services that are not disabilities are not denied services receive early intervention services.
a part of FAPE. Similarly, this new because extraordinary expenses were OSEP is aware that a small number of
provision also specifies that, if a State not considered in the calculation of States have required families to apply
uses Part B section 611 funds to pay for whether the family has the ability to for third-party resources such as
some services for infants and toddlers, pay. We further believe that this benefit Medicaid. The increased cost to States
the State may still establish a system of to families outweighs any potential that may result from the proposed
payments for services that are not part administrative burden or cost to the change is outweighed by the benefits of
of a child’s free appropriate public State derived from the incorporation of protecting the privacy and autonomy of
education. These changes clarify a this provision. the family. A family’s decision to enroll
State’s ability to charge for services that in public insurance programs may be
Section 303.520(d)(5)(ii)(A)—Family affected by religious concerns, the
are not required to be provided free of
Insurance and the Calculation of perceived stigma of public insurance,
charge under the FAPE requirements.
Position on the State Fee Scale and considerations related to family
Because most Part C services would also
be FAPE services, these changes should Section 303.520(d)(5)(ii)(A) provides finances. However, nothing in this
result in very little shifting of costs that, for States with fees for early provision precludes a State from
between State agencies and families. intervention services that have providing information on and
implemented a fee scale, the calculation promoting public insurance programs,
Section 303.520(d)(4)—Criteria for of a family’s position on the scale may assisting families with application
Judging Inability To Pay not take into account the existence of a forms, or using combined enrollment
The current regulations at family’s insurance. Inclusion of the forms. We believe that most families
§ 303.520(a)(3)(ii) specify that, ‘‘The family’s insurance in the calculation can will want to enroll in these programs to
inability of the parents of an eligible result in these families being placed at obtain medical coverage for the entire
child to pay for services will not result the top of the fee scale, even if those family. However, we do not have data
in the denial of services to the child or families intend to cover the fees on the number or percentage of eligible
the child’s family.’’ Proposed themselves. Most of the States with a families participating in this program
§ 303.520(d)(4) adds a requirement that system of payments have implemented that refuse to enroll in public insurance
States with a system of payments must fee scales. Since the National Early programs. We invite commenters to

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provide this information, if it is However, any loss of access is offset by program for infants and toddlers with
available on the State or local level. the benefits to families of increasing disabilities.
parental choice and may increase the • Could the description of the
Section 303.521(b)(1)(iii)—State Access proposed regulations in the
likelihood that children with disabilities
to Public Insurance Benefits SUPPLEMENTARY INFORMATION section of
will get the services they need.
The NEILS indicates that this preamble be more helpful in
approximately 44 percent of the families Section 303.521(d)—Parental making the proposed regulation easier
participating in the Part C program Permission To Access Private Insurance to understand? If so, how?
participate in a government-assisted Benefits • What else could we do to make the
health insurance program such as Section 303.521(d) provides that, in proposed regulations easier to
Medicaid or the SCHIP. For families States with no system of payments, the understand?
already enrolled or who voluntarily State needs parental consent for using a Send any comments that concern how
enroll in public insurance programs, family’s private insurance. This is a the Department could make this
State agencies are currently accessing slight variation on past practice, which proposed regulation easier to
that insurance to finance early required consent when there is a cost to understand to the person listed in the
intervention services. Proposed the family. As there is virtually always ADDRESSES section of the preamble.
§ 303.521(b)(1)(iii) provides that a State some cost, this provision does not Regulatory Flexibility Act Certification
may not use a child’s benefits under a represent a change in practice and
public insurance program without should not result in increased costs for The Secretary certifies that this
obtaining parental consent if that use States with no system of payments. For regulatory document will not have a
would result in a negative outcome for States that do have a system of significant economic impact on a
the family such as a decrease in payments, the provision described at substantial number of small entities.
available lifetime coverage or any other § 303.521(c) precludes the need for These regulations govern States in their
insured benefit, the family paying for formal consent. implementation of the IDEA Part C
services that would otherwise be program. States are not small entities
covered by the insurance program, an Section 303.521(e)—Use of Part C Funds under the Regulatory Flexibility Act.
increase in premiums, or the Under proposed § 303.521(e), States Part C does not authorize subgrants, and
discontinuation of insurance. The may choose to use Part C funds to pay thus there are no small entities directly
proposed regulations adopts the same co-pay or deductible amounts for affected by these regulations. The small
criteria regarding parental consent as in families in order to access public or entities that would be indirectly affected
the Part B regulations (see § 300.142(e)). private insurance that would otherwise are local entities that enter into
We expect this to have a limited effect. not be available. States may be unable contracts with the State to provide Part
In most cases, use of Federal, State, or to obtain parental consent to use a C services. However, the regulations
local public insurance programs by a family’s insurance if the parents would would not have a significant economic
State to provide or pay for a service will be required to pay co-pay or deductible impact on these small entities because
not result in a current or foreseeable amounts. This section may help States the regulations would not impose
future cost to the family or child, and to access additional funds. In States excessive regulatory burdens or require
States will not be required to get with a system of payments, the State unnecessary Federal supervision. The
consent. In the limited number of cases could pay the co-pay amount as an regulations would impose minimal
where a State might need to obtain incentive for parents to choose the requirements, concerning the issue of
consent, the burden to States is insurance option, thus benefiting both providing services in natural
outweighed by the benefit to families of the State and the family. We foresee no environments, and the issue of use of
having this protection. negative consequence for the family. insurance, to ensure the proper
expenditure of program funds.
Section 303.521(c)—Parental Payment 2. Clarity of the Regulations
Option Paperwork Reduction Act of 1995
Executive Order 12866 and the
According to preliminary data President’s Memorandum of June 1, Sections 303.100, 303.121, 303.122,
obtained from the NEILS, approximately 1998 on ‘‘Plain Language in Government 303.123, 303.124, 303.125, 303.126,
95 percent of children participating in Writing’’ require each agency to write 303.127, 303.128, 303.141, 303.142,
Part C are covered by some form of regulations that are easy to understand. 303.143, 303.144, 303.145, 303.146,
insurance. For States with a fee scale for We invite comments on how to make 303.148, 303.160, 303.161, 303.162,
early intervention services, proposed these proposed regulations easier to 303.164, 303.165, 303.166, 303.167,
section 303.521(c) gives parents the understand, including answers to 303.168, 303.169, 303.170, 303.171,
option of using their public or private questions such as the following: 303.172, 303.173, 303.174, 303.175,
insurance or paying the applicable fee • Are the requirements in the 303.176, 303.180, 303.300, 303.301,
for each service. This provision will proposed regulations clearly stated? 303.320, 303.321, 303.322, 303.323,
provide a direct benefit to some • Do the proposed regulations contain 303.340, 303.341, 303.342, 303.343,
families. While it clearly places the technical terms or other wording that 303.344, 303.345, 303.346, 303.360,
locus of responsibility for payments interferes with their clarity? 303.361, 303.420, 303.421, 303.422,
with the family, it provides the family • Does the format of the proposed 303.423, 303.424, 303.425, 303.460,
with options as to how it will fulfill that regulations (use of headings, 303.500, 303.501, 303.519, 303.520,
responsibility. For example, a family paragraphing, etc.) aid or reduce their 303.522, 303.523, 303.524, 303.525,
may choose to pay the fee rather than clarity? 303.526, 303.527, 303.528, 303.540,
jeopardize future benefits or eligibility • Would the proposed regulations be 303.600, 303.601, 303.602, 303.603,
under a private insurance policy. This easier to understand if we divided them 303.604, 303.650, 303.651, 303.652,
provision may diminish State access to into more (but shorter) sections? (A 303.653, and 303.654 contain
insurance if more parents in States with ‘‘section’’ is preceded by the symbol ‘‘§’’ information collection requirements. As
systems of payments, when given a clear and a numbered heading; for example, required by the Paperwork Reduction
choice, opt to pay the applicable fees. § 303.1 Purpose of the early intervention Act of 1995 (44 U.S.C. 3507(d)), the

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 Federal Register / Vol. 65, No. 172 / Tuesday, September 5, 2000 / Proposed Rules 53829

Department of Education has submitted State financing of early intervention L. 105–17), the new or revised State
a copy of these sections to the Office of services, included earlier in this policies and procedures required by this
Management and Budget (OMB) for its preamble). NPRM must be submitted only one time
review. The second category includes sections to the Secretary, and remain in effect
For purposes of addressing the that are currently approved by OMB, but unless amended. Therefore, States will
Paperwork Reduction Act requirements, are being revised by this NPRM. This have a one-time paperwork burden in
we have divided the sections listed in category includes §§ 303.124, 303.128, complying with these proposed
the preceding paragraph into three 303.148, 303.165, 303.167, 303.169, changes, and not an annual burden.
categories, as follows: 303.173, 303.174, 303.321, 303.340, The one-time burden for meeting the
The first category includes three 303.344, 303.361, and 300.523. application requirements described in
sections that contain, for the first time, The third category contains sections
the preceding paragraphs is estimated to
information collection requirements that currently approved by OMB that either
average 8 hours for 56 respondents,
have been added by this NPRM, are not affected by the NPRM or do not
including reviewing instructions,
including §§ 303.100, 303.341, and contain any new information collection
303.519. However, in large part, these requirements. This category includes searching existing data sources,
provisions do not add new paperwork §§ 303.122, 303.123, 303.125, 303.126, gathering and maintaining the data
burden, as described in the following 303.127, 303.141, 303.142, 303.143, needed and completing and reviewing
paragraphs: 303.144, 303.145, 303.146, 303.160, the collection of information. Thus, the
First, we have included § 303.100 in 303.161, 303.162, 303.165, 303.166, total burden for this one-time collection
the list of new information collection 303.168, 303.170, 303.171, 303.172, is estimated to be 448 hours.
requirements to clarify, within the 303.174, 303.175, 303.176, 303.180, Organizations and individuals
general application requirements in 303.301, 303.302, 303.322, 303.323, desiring to submit comments on the
subpart B of this part, that the 303.342, 303.343, 303.345, 303.346, information collection requirements
information contained in a State’s 303.360, 303.420, 303.421, 303.422, should direct them to the Office of
application must include ‘‘copies of all 303.423, 303.424, 303.425, 303.460, Information and Regulatory Affairs,
applicable State statutes, regulations, 303.500, 303.501, 303.522, 303.524, OMB, room 10235, New Executive
and other State documents that show 303.525, 303.526, 303.527, 303.528, Office Building, Washington, DC 20503;
the basis of that information.’’ This 303.540, 303.600, 303.601, 303.602, Attention: Desk Officer for U.S.
proposed change, which conforms to the 303.603, 303.604, 303.650, 303.651, Department of Education.
final Part B regulations (34 CFR 303.652, 303.653, and 303.654. The Department considers comments
300.110(b)(2)), does not add a new The new or revised sections with by the public on these proposed
burden, but merely clarifies and gives paperwork requirements that are collections of information in—
added emphasis to existing State described under categories 1 and 2 in
application requirements in the Part C the preceding paragraphs contain • Evaluating whether the proposed
regulations. (The Department and the information collection provisions that collections of information are necessary
States have appropriately interpreted affect a State’s application for a grant for the proper performance of the
the existing definition of ‘‘policies’’ in under this part, including the sections functions of the Department, including
§ 303.20 to ensure that if a State policy with specific application requirements whether the information will have
is found in a State statute or regulation, in subpart B of this NPRM, and the practical utility;
the Part C application must include that substantive sections to which they refer • Evaluating the accuracy of the
document.) in subparts D and F. A description of Department’s estimate of the burden of
Second, although we have included this information collection is included the proposed collections of information,
§ 303.341 in the list of new information in the following paragraphs. including the validity of the
requirements, States have traditionally methodology and assumptions used;
been required to submit policies and Collection of Information: Early
Intervention Program for Infants and • Enhancing the quality, usefulness,
procedures on natural environments. and clarity of the information to be
New section 303.341 includes, in Toddlers With Disabilities
collected; and
modified form, the requirements for State Application for a Grant,
policies and procedures on natural §§ 303.100, 303.124, 303.128, 303.148, • Minimizing the burden of the
environments that are currently 303.165, 303.167, 303.169, 303.173, collection of information on those who
included in 303.167(c) of the existing 303.174, 303.321, 303.340, 303.341, are to respond, including through the
regulations. Current § 303.167(c) would 303.344, 303.361, 303.519, 303.523. In use of appropriate automated,
be amended by this NPRM, by removing order to receive funds under this part electronic, mechanical, or other
the substance on natural environments for any fiscal year, a State must have on technological collection techniques or
to new § 303.341(a), and further revising file with the Secretary a statement of other forms of information technology;
the language in § 303.167(c) to clarify assurances and an approved application e.g., permitting electronic submission of
that each application must include that meets specified requirements under responses.
‘‘Policies and procedures on natural subpart B of these regulations. All States OMB is required to make a decision
environments that meet the have approved applications on file with concerning the collections of
requirements of §§ 303.341 and the Secretary that meet the requirements information contained in these
303.344.’’ under the current regulations. proposed regulations between 30 and 60
Finally, new § 303.519 has been In all of the sections listed in the days after publication of this document
included under category 1, even though preceding paragraph, States are not in the Federal Register. Therefore, a
many of the information collection required to submit any information that comment to OMB is best assured of
requirements in that section were is currently on file with the Secretary, having its full effect if OMB receives it
moved from current § 303.520, as part of but are only required to submit new within 30 days of publication. This does
an effort to improve the readability and information that would be added by this not affect the deadline for the public to
clarity of those provisions. (See NPRM. Consistent with changes made comment to the Department on the
description of the proposed changes to by the IDEA Amendments of 1997 (Pub. proposed regulations.

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Intergovernmental Review http://www.ed.gov/news.html Subpart B—State Application for a Grant

This program is subject to Executive To use the PDF you must have Adobe General Requirements
Order 12372 and the regulations in 34 Acrobat Reader, which is available free 303.100 Conditions of assistance.
CFR part 79. One of the objectives of the at either of the previous sites. If you 303.101 How the Secretary disapproves a
Executive order is to foster an have questions about using the PDF, call State’s application statement of
intergovernmental partnership and a assurances.
the U.S. Government Printing Office
strengthened federalism. The Executive Public Participation
(GPO), toll free, at 1–800–293–6498; or
order relies on processes developed by
in the Washington, D.C. area, at (202) 303.110 General requirements and
State and local governments for
512–1530. timelines for public participation.
coordination and review of proposed 303.111 Notice of public hearings and
Note: The official version of a document is
Federal financial assistance. opportunity to comment.
This document provides early the document published in the Federal
Register. Free Internet access to the official 303.112 Public hearings.
notification of our specific plans and edition of the Federal Register and the Code 303.113 Reviewing public comments
actions for this program. of Federal Regulations is available on GPO received.
Assessment of Educational Impact Access at: http://www.access.gpo.gov/nara/ Statement of Assurances
index.html
The Secretary particularly requests 303.120 General.
comments on whether these proposed (Catalog of Federal Domestic Assistance 303.121 Reports and records.
regulations would require transmission Number: 84–181 Early Intervention Program 303.122 Control of funds and property.
for Infants and Toddlers with Disabilities) 303.123 Prohibition against commingling.
of information that any other agency or
303.124 Prohibition against supplanting.
authority of the United States gathers or List of Subjects in 34 CFR Part 303 303.125 Fiscal control.
makes available. 303.126 Payor of last resort.
Education of individuals with 303.127 Assurance regarding expenditure of
Federalism disabilities, Grant programs—education, funds.
Executive Order 13132 requires us to Infants and toddlers, Reporting and 303.128 Traditionally underserved groups.
ensure meaningful and timely input by recordkeeping requirements.
State and local elected officials in the General Requirements for a State
Dated: August 23, 2000. Application
development of regulatory policies that Richard W. Riley,
have federalism implications. 303.140 General.
Secretary of Education. 303.141 Information about the Council.
‘‘Federalism implications’’ means
For the reasons discussed in the 303.142 Designation of lead agency.
substantial direct effects on the States,
303.143 Designation regarding financial
on the relationship between the preamble, the Secretary proposes to responsibility.
National Government and the States, or amend title 34 of the Code of Federal 303.144 Assurance regarding use of funds.
on the distribution of power and Regulations by revising part 303 to read 303.145 Description of use of funds.
responsibilities among the various as follows: 303.146 Information about public
levels of government. Among other participation.
requirements, the Executive order PART 303—EARLY INTERVENTION 303.147 Service to all geographic areas.
requires us to consult with State and PROGRAM FOR INFANTS AND 303.148 Transition to preschool or other
local elected officials respecting any TODDLERS WITH DISABILITIES appropriate services .
regulations that have federalism Subpart A—General Components of a Statewide System—
implications and either preempt State Application Requirements
law or impose substantial direct Purpose, Eligibility, and Other General 303.160 Minimum components of a
compliance costs on State and local Provisions statewide system.
governments, and are not required by Sec. 303.161 State definition of developmental
statute, unless the Federal government 303.1 Purpose of the early intervention delay.
provides the funds for those costs. program for infants and toddlers with 303.162 Central directory.
Although we do not believe that these disabilities. 303.163 [Reserved]
proposed regulations have federalism 303.2 Eligible recipients of an award. 303.164 Public awareness program.
303.3 Use of Part C funds. 303.165 Comprehensive child find system.
implications as defined in Executive 303.4 Limitation on eligible children. 303.166 Evaluation, assessment, and non-
Order 13132, we encourage State and 303.5 Applicable regulations. discriminatory procedures.
local elected officials to review them 303.167 Individualized family service
and to comment specifically on whether Definitions plans.
they may impose substantial direct 303.6 Act. 303.168 Comprehensive system of
compliance costs on State and local 303.7 Children. personnel development (CSPD).
governments without reimbursement of 303.8 Council. 303.169 Personnel standards.
303.9 Day; business day. 303.170 Procedural safeguards.
those costs by the Federal government. 303.10 Developmental delay. 303.171 Supervision and monitoring of
Also, though we do not intend to 303.11 Early intervention program. programs.
preempt State law, we are asking for 303.12 Early intervention services. 303.172 Lead agency procedures for
comments as to whether these proposed 303.13 Health services. resolving complaints.
regulations would result in any 303.14 IFSP; IFSP team. 303.173 Policies and procedures related to
unintended preemption of State law. 303.15 Include; including. financial matters.
303.16 Infants and toddlers with 303.174 Interagency agreements; resolution
Electronic Access to this Document disabilities. of individual disputes.
You may view this document, as well as 303.17 Multidisciplinary. 303.175 Policy for contracting or otherwise
all other Department of Education 303.18 Natural environments. arranging for services.
documents published in the Federal 303.19 Parent. 303.176 Data collection.
303.20 Policies.
Register, in text or Adobe Portable 303.21 Public agency. Participation by the Secretary of the Interior
Document Format (PDF) on the Internet 303.22 Qualified personnel. 303.180 Payments to the Secretary of the
at either of the following sites: 303.23 State. Interior for Indian tribes and tribal
http://ocfo.ed.gov/fedreg.htm 303.24 EDGAR definitions that apply. organizations.

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Subpart C—Procedures for Making Grants Subpart F—State Administration from Federal, State, local, and private
to States sources (including public and private
General
303.200 Formula for State allocations. insurance coverage);
303.500 Lead agency establishment or
303.201 Distribution of allotments from designation. (c) Enhance the States’ capacity to
non-participating States. 303.501 Supervision and monitoring of provide quality early intervention
303.202 Minimum grant that a State may programs. services and expand and improve
receive. existing early intervention services
303.203 Payments to the Secretary of the Lead Agency Procedures for Resolving
Complaints being provided to infants and toddlers
Interior. with disabilities and their families; and
303.204 Payments to the jurisdictions. 303.510 Adopting complaint procedures.
303.511 An organization or individual may
(d) Enhance the capacity of State and
Subpart D—Program and Service file a complaint. local agencies and service providers to
Components of a Statewide System of Early 303.512 Minimum State complaint identify, evaluate, and meet the needs of
Intervention Services procedures. historically underrepresented
General populations, particularly minority, low-
Policies and Procedures Related to Financial
Matters income, inner-city, and rural
303.300 Child eligibility—criteria and
procedures.
populations.
303.519 Policies related to payment for
303.301 Central directory. services. (Authority: 20 U.S.C. 1431)
303.302 Service coordination. 303.520 System of payments.
303.521 Use of insurance. § 303.2 Eligible recipients of an award.
Identification and Evaluation 303.522 Identification and coordination of Eligible recipients include the 50
303.320 Public awareness program. resources. States, the Commonwealth of Puerto
303.321 Comprehensive child find system. 303.523 Interagency agreements. Rico, the District of Columbia, the
303.322 Evaluation and assessment. 303.524 Resolution of disputes. Secretary of the Interior, and the
303.323 Non-discriminatory procedures. 303.525 Delivery of services in a timely
manner. following jurisdictions: Guam,
Individualized Family Service Plans (IFSPs) 303.526 Policy for contracting or otherwise American Samoa, the Virgin Islands, the
303.340 Definition of IFSP; lead agency arranging for services. Commonwealth of the Northern Mariana
responsibility. 303.527 Payor of last resort. Islands.
303.341 Policies and procedures on natural 303.528 Reimbursement procedure.
(Authority: 20 U.S.C. 1401(27), 1443)
environments. Reporting Requirements
303.342 Development, review, and revision § 303.3 Use of Part C funds.
303.540 Data collection.
of IFSPs. (a) Funds under Part C of the Act may
303.343 IFSP team—meetings and periodic Use of Funds for State Administration be used for the following activities:
reviews. 303.560 Use of funds for administration. (1) To maintain and implement a
303.344 Content of IFSP. statewide system of early intervention
303.345 Provision of services before Subpart G—State Interagency Coordinating
Council services for children eligible under this
evaluation and assessment are
completed.
part and their families.
General
303.346 Responsibility and accountability. (2) For direct services for eligible
303.600 Establishment of Council. children and their families that are not
Personnel Training and Standards 303.601 Composition. otherwise provided from other public or
303.602 Use of funds by the Council.
303.360 Comprehensive system of 303.603 Meetings. private sources.
personnel development (CSPD). 303.604 Conflict of interest. (3) To expand and improve on
303.361 Personnel standards. services for eligible children and their
Functions of the Council families that are otherwise available,
Subpart E—Procedural Safeguards
303.650 General. consistent with § 303.527.
General 303.651 Advising and assisting the lead (4) To provide a free appropriate
agency in its administrative duties.
303.400 General responsibility of lead public education, in accordance with
303.652 Applications.
agency for procedural safeguards. part B of the Act, to children with
303.653 Transition services.
303.401 Definitions of consent, native 303.654 Annual report to the Secretary. disabilities from their third birthday to
language, and personally identifiable the beginning of the following school
information. Authority: 20 U.S.C. 1431–1445, unless
otherwise noted. year.
303.402 Opportunity to examine records. (5) To strengthen the statewide system
303.403 Prior notice; native language.
Subpart A—General by initiating, expanding, or improving
303.404 Parent consent.
303.405 Parent right to decline service.
collaborative efforts related to at-risk
Purpose, Eligibility, and Other General infants and toddlers, including
303.406 Surrogate parents. Provisions establishing linkages with appropriate
Mediation and Due Process Procedures for public or private community-based
Parents and Children § 303.1 Purpose of the early intervention
program for infants and toddlers with organizations, services, and personnel
303.419 Mediation. disabilities. for the purpose of—
303.420 Due process procedures. The purpose of this part is to provide (i) Identifying and evaluating at-risk
303.421 Impartial hearing officer. infants and toddlers;
financial assistance to States to—
303.422 Parent rights in due process (ii) Making referrals of the infants and
(a) Maintain and implement a
hearings. toddlers identified and evaluated under
statewide, comprehensive, coordinated,
303.423 Convenience of hearings; timelines.
multidisciplinary, interagency system of paragraph (a)(5)(i) of this section; and
303.424 Civil action.
303.425 Status of a child during early intervention services for infants (iii) Conducting periodic follow-up on
proceedings. and toddlers with disabilities and their each referral under paragraph (a)(5)(ii)
families; of this section to determine if the status
Confidentiality (b) Facilitate the coordination of of the infant or toddler involved has
303.460 Confidentiality of information. payment for early intervention services changed with respect to the eligibility of

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the infant or toddler for services under (ix) Part 98 (Student Rights in Special definition of ‘‘infants and
this part. Research, Experimental Programs and toddlers’’ (§ 303.200(b)(2))
(6) To assist families— Testing; and Special definition of ‘‘State’’
(i) To understand the sources of (x) Part 99 (Family Educational Rights (§ 303.200(b)(3))
financing early intervention services, and Privacy). State approved or recognized
including public and private insurance (2) The regulations in this part 303. certification, licensing, registration, or
programs, and how to access those (3) The following regulations in 34 other comparable requirements
sources; and CFR part 300 (Assistance to States for (§ 303.361(a)(4))
(ii) To be knowledgeable about any the Education of Children with
Disabilities Program): §§ 300.506– § 303.6 Act.
potential long-term costs involved in
300.512 (Part B due process hearing As used in this part, the term Act
accessing the sources described in
procedures), if the lead agency adopts means the Individuals with Disabilities
paragraph (a)(6)(i) of this section, and
these provisions under § 303.420(a)(1); Education Act.
how to minimize those costs.
(b)(1) Funds under Part C of the Act §§ 300.560–300.577 (Confidentiality of (Authority: 20 U.S.C. 1400)
may not be used to pay costs of a party information); and §§ 300.580–300.587
(Department procedures for determining § 303.7 Children.
related to an action or proceeding under
a State’s eligibility under Part C of the As used in this part, the term children
section 639 of the Act and subpart E of
Act). means infants and toddlers with
this part.
(b) In applying the regulations cited in disabilities as that term is defined in
(2) Paragraph (b)(1) of this section
paragraphs (a)(1) and (a)(3) of this § 303.16.
does not preclude a lead agency from
using funds under Part C of the Act for section, any reference to— (Authority: 20 U.S.C. 1432(5))
conducting due process hearings under (1) State educational agency means
the lead agency under this part; § 303.8 Council.
section 639 of the Act (for example,
(2) Special education, related As used in this part, the term Council
paying a hearing officer, providing a
services, free appropriate public means the State Interagency
place for conducting a hearing, and
education, free public education, or Coordinating Council.
paying the cost of providing the parent
education means ‘‘early intervention (Authority: 20 U.S.C. 1432(2))
with a transcription of the hearing).
services’’ under this part;
(Authority: 20 U.S.C. 1433 and 1438) (3) Participating agency, when used in § 303.9 Day; business day.
§ 303.4 Limitation on eligible children. reference to a local educational agency (a) As used in this part, the term day
or an intermediate educational agency, means calendar day, unless otherwise
This part 303 does not apply to any means a local service provider under indicated as business day in accordance
child with disabilities receiving a free this part; and with paragraph (b) of this section.
appropriate public education, in (4) Section 300.127 (confidentiality of (b)(1) If a State, under § 303.420(a)(1),
accordance with 34 CFR part 300, with personally identifiable information) adopts the Part B due process hearing
funds received under 34 CFR part 301. means § 303.460. procedures in 34 CFR part 300, the term
(Authority: 20 U.S.C. 1419(h)) (Authority: 20 U.S.C. 1401, 1416, 1417, 1442) business day is used with respect to
§ 303.5 Applicable regulations.
hearing rights in 34 CFR 300.509.
Definitions (2) Business day means Monday
(a) The following regulations apply to through Friday, except for Federal and
this part: Note to §§ 303.6—303.23: Sections 303.6–
303.23 contain definitions, including a State holidays.
(1) The Education Department
definition of ‘‘natural environments’’ in (Authority: 20 U.S.C. 1431–1445)
General Administrative Regulations § 303.18, that are used throughout these
(EDGAR), including— regulations. Other terms are defined in the § 303.10 Developmental delay.
(i) Part 76 (State Administered specific subparts in which they are used. The As used in this part, the term
Programs), except for § 76.103; following is a list of those terms and the developmental delay, when used with
(ii) Part 77 (Definitions that Apply to specific sections in which they are defined: respect to a child residing in a State, has
Department Regulations); the meaning given to that term under
Appropriate professional requirements
(iii) Part 79 (Intergovernmental in the State (§ 303.361(a)(1)) § 303.300(b).
Review of Department of Education Assessment (§ 303.322(b)(2)) (Authority: 20 U.S.C. 1432(3))
Programs and Activities); Consent (§ 303.401(a))
(iv) Part 80 (Uniform Administrative Evaluation (§ 303.322(b)(1)) § 303.11 Early intervention program.
Requirements for Grants and Frequency and intensity As used in this part, the term early
Cooperative Agreements to State and (§ 303.344(d)(2)(i)) intervention program means the total
Local Governments); Highest requirements in the State effort in a State that is directed at
(v) Part 81 (Grants and Cooperative applicable to a profession or meeting the needs of children eligible
Agreements under the General discipline (§ 303.361)(a)(2)) under this part and their families.
Education Provisions Act— Individualized family service plan and (Authority: 20 U.S.C. 1431–1445)
Enforcement); IFSP (§ 303.340(b))
(vi) Part 82 (New Restrictions on Impartial (§ 303.421(b)) § 303.12 Early intervention services.
Lobbying); Method (§ 303.344(d)(2)(ii)) (a) General. As used in this part, the
(vii) Part 85 (Governmentwide Native language (§ 303.401(b)) term early intervention services means
Debarment and Suspension Personally identifiable (§ 303.401(c)) developmental services that—
(Nonprocurement) and Primary referral sources (1) Are provided—
Governmentwide Requirements for (§ 303.321(d)(3)) (i) Under public supervision; and
Drug-Free Work Place (Grants)); Profession or discipline (§ 303.361(a)(3)) (ii) At no cost, unless, subject to
(viii) Part 97 (Protection of Human Special definition of ‘‘aggregate § 303.520(b)(3), Federal or State law
Subjects); amount’’ (§ 303.200(b)(1)) provides for a system of payments by

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families, including a schedule of sliding other individuals who provide services adaptive development, adaptive
fees; to or are otherwise substantially behavior and play, and sensory, motor,
(2) Are designed to meet— involved in the major life functions of and postural development. These
(i) The developmental needs of each individuals with disabilities. services are designed to improve the
child eligible under this part in one or (2) Audiology services includes— child’s functional ability to perform
more of the areas listed in § 303.16(a)(1); (i) Identification of children with tasks in home, school, and community
and hearing loss, using appropriate settings, and include—
(ii) The needs of the family related to audiologic screening techniques; (A) Identification, assessment, and
enhancing the child’s development; (ii) Determination of the range, nature, intervention;
(3) Are selected in collaboration with and degree of hearing loss and (B) Adaptation of the environment,
the parents; communication functions, by use of and selection, design, and fabrication of
(4) Meet the standards of the State, audiological evaluation procedures; assistive and orthotic devices to
including the requirements of this part; (iii) Referral for medical and other facilitate development and promote the
(5) Subject to the exclusions on health services necessary for the habilitation or acquisition of functional skills; and
services in § 303.13(c), include the rehabilitation of children with hearing (C) Prevention or minimization of the
services listed in paragraph (b) of this loss; impact of initial or future impairment,
section; (iv) Provision of auditory training, delay in development, or loss of
(6) Are provided in a timely manner aural rehabilitation, speech reading and functional ability.
by qualified personnel, as defined in listening device orientation and (8) Physical therapy includes services
§ 303.22, including the types of training, and other services; to address the promotion of
personnel listed in paragraph (c) of this (v) Provision of services for sensorimotor function through
section; prevention of hearing loss; and enhancement of musculoskeletal status,
(7) Are provided in conformity with (vi) Determination of the child’s need neurobehavioral organization,
an individualized family service plan for individual amplification, including perceptual and motor development,
(IFSP); and selecting, fitting, and dispensing cardiopulmonary status, and effective
(8) To the maximum extent appropriate listening and vibrotactile environmental adaptation. These
appropriate to the needs of the child, are devices, and evaluating the effectiveness services include—
provided in natural environments, as of those devices; and (i) Screening, evaluation, and
defined in § 303.18. (vii) Counseling and guidance of assessment of infants and toddlers to
(b) Types of services; definitions. The children, parents, and teachers identify movement dysfunction;
term early intervention services includes regarding hearing loss. (ii) Obtaining, interpreting, and
the following: (3) Family training, counseling, and integrating information appropriate to
(1)(i) Assistive technology device home visits means services provided, as program planning to prevent, alleviate,
means any item, piece of equipment, or appropriate, by social workers, or compensate for movement
product system, whether acquired psychologists, special educators, and dysfunction and related functional
commercially off the shelf, modified, or other qualified personnel to assist the problems; and
customized, that is used to increase, family of a child eligible under this part (iii) Providing individual and group
maintain, or improve the functional in understanding the special needs of services or treatment to prevent,
capabilities of children with disabilities. the child and enhancing the child’s alleviate, or compensate for movement
(ii) Assistive technology service means development. dysfunction and related functional
a service that directly assists an eligible (4) Health services (See § 303.13). problems.
child or the child’s parents in the (5) Medical services only for (9) Psychological services includes—
diagnostic or evaluation purposes (i) Administering psychological and
selection, acquisition, or use of an
means services provided by a licensed developmental tests and other
assistive technology device for the
physician to determine a child’s assessment procedures;
child. The term includes— (ii) Interpreting assessment results;
(A) The evaluation of the needs of a developmental status and need for early
intervention services. (iii) Obtaining, integrating, and
child with a disability, including a interpreting information about child
functional evaluation of the child in the (6) Nutrition services includes—
(i) Conducting individual assessments behavior, and child and family
child’s customary environment; conditions related to learning, mental
(B) Purchasing, leasing, or otherwise in—
(A) Nutritional history and dietary health, and development; and
providing for the acquisition of assistive (iv) Planning and managing a program
intake;
technology devices by children with (B) Anthropometric, biochemical, and of psychological services, including
disabilities; clinical variables; psychological counseling for children
(C) Selecting, designing, fitting, (C) Feeding skills and feeding and parents, family counseling,
customizing, adapting, applying, problems; and consultation on child development,
maintaining, repairing, or replacing (D) Food habits and food preferences; parent training, and education
assistive technology devices; (ii) Developing and monitoring programs.
(D) Coordinating and using other appropriate plans to address the (10) Service coordination means
therapies, interventions, or services nutritional needs of children eligible assistance and services provided by a
with assistive technology devices, such under this part, based on the findings in service coordinator to a child eligible
as those associated with existing paragraph (d)(7)(i) of this section; and under this part and the child’s family,
education and rehabilitation plans and (iii) Making referrals to appropriate in accordance with § 303.302.
programs; community resources to carry out (11) Social work services includes—
(E) Training or technical assistance for nutrition goals. (i) Making home visits to evaluate a
a child with disabilities or, if (7) Occupational therapy— child’s living conditions and patterns of
appropriate, that child’s family; and (i) Means services provided by a parent-child interaction;
(F) Training or technical assistance for qualified occupational therapist; and (ii) Preparing a social or emotional
professionals (including individuals (ii) Includes services to address the developmental assessment of the child
providing early intervention services) or functional needs of a child related to within the family context;

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(iii) Providing individual and family- (15) Vision services means— necessary to enable a child to benefit
group counseling with parents and other (i) Evaluation and assessment of from the other early intervention
family members, and appropriate social visual functioning, including the services under this part during the time
skill-building activities with the child diagnosis and appraisal of specific that the child is receiving the other early
and parents; visual disorders, delays, and abilities; intervention services.
(iv) Working with those problems in (ii) Referral for medical or other (b) Subject to paragraph (c) of this
a child’s and family’s living situation professional services necessary for the section, the term includes—
(home, community, and any center habilitation or rehabilitation of visual (1) Such services as clean intermittent
where early intervention services are functioning disorders, or both; and catheterization, tracheostomy care, tube
provided) that affect the child’s (iii) Communication skills training, feeding, the changing of dressings or
maximum utilization of early orientation and mobility training for all colostomy collection bags, and other
intervention services; and environments, visual training, health services;
(v) Identifying, mobilizing, and independent living skills training, and (2) Consultation by physicians with
coordinating community resources and additional training necessary to activate other service providers concerning the
services to enable the child and family visual motor abilities. special health care needs of eligible
to receive maximum benefit from early (c) Qualified personnel. Qualified children that will need to be addressed
intervention services. personnel providing early intervention in the course of providing other early
(12) Special instruction includes the services under this part include— intervention services; and
following: (1) Audiologists; (3) Nursing services, including—
(i) The design of learning (2) Family therapists; (i) The assessment of health status for
environments and activities that (3) Nurses; the purpose of providing nursing care,
promote the child’s acquisition of skills (4) Nutritionists; including the identification of patterns
in the following developmental areas: (5) Occupational therapists; of human response to actual or potential
cognitive; physical; communication; (6) Orientation and mobility health problems;
social or emotional; and adaptive. specialists; (ii) Provision of nursing care to
(ii) Planning that leads to achieving (7) Pediatricians and other physicians; prevent health problems, restore or
the outcomes in the child’s IFSP, (8) Physical therapists; improve functioning, and promote
including curriculum planning, the (9) Psychologists; optimal health and development; and
planned interaction of personnel, and (10) Social workers; (iii) Administration of medications,
planning with respect to the appropriate (11) Special educators; and treatments, and regimens prescribed by
use of time, space, and materials. (12) Speech and language a licensed physician.
(iii) Providing families with pathologists. (c) The term does not include the
information, skills, and support related (d) General role of service providers. following:
to enhancing the skill development of To the extent appropriate, service (1) Services that are—
the child. providers in each area of early (i) Surgical in nature (such as cleft
(iv) Working with the child to intervention services included in palate surgery, surgery for club foot, the
enhance the child’s development. paragraph (d) of this section are shunting of hydrocephalus, or the
(13) Speech-language pathology responsible for— installation of devices such as
services includes— (1) Consulting with parents, other
(i) Identification of children with pacemakers, cochlear implants, or
service providers, and representatives of prostheses); or
communicative or swallowing disorders appropriate community agencies to
and delays in development of (ii) Purely medical in nature (such as
ensure the effective provision of hospitalization for management of
communication skills, including the services in that area;
diagnosis and appraisal of specific congenital heart ailments, or the
(2) Training parents and others
disorders and delays in those skills; prescribing of medicine or drugs for any
regarding the provision of those
(ii) Referral for medical or other purpose).
services; and
professional services necessary for the (2) Devices necessary to control or
(3) Participating in the
habilitation or rehabilitation of children treat a medical or other condition (such
multidisciplinary team’s assessment of a
with communicative or swallowing as pacemakers, cochlear implants,
child and the child’s family, and in the
disorders and delays in development of prostheses, or shunts).
development of integrated goals and
communication skills; (3) Medical-health services (such as
outcomes for the individualized family
(iii) Provision of services for the immunizations and regular ‘‘well-baby’’
service plan.
habilitation, rehabilitation, or care) that are routinely recommended
(Authority: 20 U.S.C. 1401(1) and (2); for all children.
prevention of communicative or 1432(4))
swallowing disorders and delays in (Authority: 20 U.S.C. 1432(4))
development of communication skills; Note to § 303.12: The lists of services in
paragraph (b) and qualified personnel in Note to § 303.13: The definition in this
and section distinguishes between the health
paragraph (c) of this section are not
(iv) Counseling and guidance of services that are required under this part and
exhaustive. Early intervention services may
parents, children, and teachers include such services as the provision of the medical-health services that are not
regarding speech and language respite and other family support services. required. The IFSP requirements in subpart
impairments. Qualified personnel may include such D of this part provide that, to the extent
(14) Transportation and related costs personnel as vision specialists, appropriate, these other medical-health
includes the cost of travel (e.g., mileage, paraprofessionals, parent-to-parent support services are to be included in the IFSP, along
or travel by taxi, common carrier, or personnel, augmentative communication with the funding sources to be used in paying
specialists, and technology specialists. for the services or the steps that will be taken
other means) and other costs (e.g., tolls to secure the services through public or
and parking expenses) that are private sources. Identifying these services in
necessary to enable a child eligible § 303.13 Health services. the IFSP does not impose an obligation to
under this part and the child’s family to (a) As used in this part, the term provide the services if they are otherwise not
receive early intervention services. health services means services required to be provided under this part. (See

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§ 303.344 (f) and note 3 following that are at risk may be eligible under this part if (i) Has an ongoing, long-term parental
section.) a State elects to extend services to that relationship with the child;
population, even though they have not been (ii) Is willing to make the decisions
§ 303.14 IFSP; IFSP team. identified as disabled. required of parents under the Act; and
Under this provision, States have the (iii) Has no interest that would
As used in this part, the term—
authority to define who would be ‘‘at risk of
(a) IFSP means the individualized having substantial developmental delays if
conflict with the interests of the child.
family service plan, as that term is early intervention services are not provided.’’ (Authority: 20 U.S.C. 1401(19), 1431–1445)
defined in § 303.340(a); and In defining the ‘‘at risk’’ population, States
(b) IFSP team means the group of may include well-known biological and § 303.20 Policies.
participants described in § 303.343 that environmental factors that can be identified (a) As used in this part, the term
is responsible for developing, reviewing, and that place infants and toddlers ‘‘at risk’’ policies means State statutes,
and, if appropriate, revising an IFSP for for developmental delay. Commonly cited regulations, Governor’s orders,
an eligible child under this part. factors include low birth weight, respiratory directives by the lead agency, or other
distress as a newborn, lack of oxygen, brain
(Authority: 20 U.S.C. 1221e–3; 1436) written documents that represent the
hemorrhage, infection, nutritional
deprivation, and a history of abuse or neglect. State’s position concerning any matter
§ 303.15 Include; including. covered under this part.
It should be noted that ‘‘at risk’’ factors do
As used in this part, the term include not predict the presence of a barrier to (b) State policies include—
or including means that the items development, but they may indicate children (1) A State’s commitment to maintain
named are not all of the possible items who are at higher risk of developmental the statewide system (see § 303.140);
that are covered whether like or unlike delay than children without these problems. (2) A State’s eligibility criteria and
the ones named. procedures (see § 303.300);
§ 303.17 Multidisciplinary. (3) Policies concerning the State’s
(Authority: 20 U.S.C. 1431–1445)
As used in this part, the term system of payments, if any, and the
§ 303.16 Infants and toddlers with multidisciplinary means the State’s financing of early intervention
disabilities. involvement of two or more disciplines services, in accordance with §§ 303.519
(a) As used in this part, the term or professions in the provision of through 303.521.
infants and toddlers with disabilities integrated and coordinated services, (4) A State’s standards for personnel
means individuals from birth through including evaluation and assessment who provide services to children
age two who need early intervention activities in § 303.322 and development eligible under this part (see § 303.361);
services because they— of the IFSP in § 303.342. (5) A State’s position and procedures
(1) Are experiencing developmental related to contracting or making other
(Authority: 20 U.S.C. 1435(a)(3), 1436(a)) arrangements with service providers
delays, as measured by appropriate
diagnostic instruments and procedures, § 303.18 Natural environments. under subpart F of this part; and
in one or more of the following areas: (6) Other positions that the State has
As used in this part, the term natural adopted related to implementing any of
(i) Cognitive development. environments—
(ii) Physical development, including the other requirements under this part.
(a) Means settings that are natural or
vision and hearing. normal for an eligible child’s age peers (Authority: 20 U.S.C. 1431–1445)
(iii) Communication development. who have no disabilities; and
(iv) Social or emotional development. § 303.21 Public agency.
(b) Includes—
(v) Adaptive development; or As used in this part, the term public
(2) Have a diagnosed physical or (1) The home; and
agency includes the lead agency and
mental condition that has a high (2) Community settings in which
any other political subdivision of the
probability of resulting in children without disabilities participate.
State that is responsible for providing
developmental delay. (Authority: 20 U.S.C. 1435 and 1436) early intervention services to children
(b) The term may also include, at a eligible under this part and their
§ 303.19 Parent.
State’s discretion, children from birth families.
through age two who are at risk of (a) General. As used in this part, the
term parent means— (Authority: 20 U.S.C. 1431–1445)
having substantial developmental
delays if early intervention services are (1) A natural or adoptive parent of a § 303.22 Qualified personnel.
not provided. child; As used in this part, the term
(2) A guardian, but not the State if the qualified personnel means personnel
(Authority: 20 U.S.C. 1432(5)) child is a ward of the State; who have met State-approved or State-
Note 1 to § 303.16: The phrase ‘‘a (3) A person acting in the place of a
diagnosed physical or mental condition that
recognized certification, licensing,
parent (such as a grandparent or registration, or other comparable
has a high probability of resulting in stepparent with whom the child lives,
developmental delay,’’ as used in paragraph requirements that apply to the area in
or a person who is legally responsible which the individuals are providing
(a)(2) of this section, applies to a condition
if it typically results in developmental delay.
for the child’s welfare); or early intervention services.
Examples of these conditions include (4) A surrogate parent who has been
assigned in accordance with § 303.406. (Authority: 20 U.S.C. 1432(4))
chromosomal abnormalities; genetic or
congenital disorders; severe sensory (b) Foster parent. Unless State law Note to § 303.22: These regulations contain
impairments, including hearing and vision; prohibits a foster parent from acting as the following provisions relating to a State’s
inborn errors of metabolism; disorders a parent, a State may allow a foster responsibility to ensure that personnel are
reflecting disturbance of the development of parent to act as a parent under Part C qualified to provide early intervention
the nervous system; congenital infections; of the Act if— services:
disorders secondary to exposure to toxic Section 303.12(a)(4) provides that early
(1) The natural parents’ authority to intervention services must meet State
substances, including fetal alcohol syndrome;
and severe attachment disorders.
make the decisions required of parents standards. This provision implements a
under the Act has been extinguished requirement that is similar to a longstanding
Note 2 to § 303.16: With respect to under State law; and provision under part B of the Act (i.e., that
paragraph (b) of this section, children who (2) The foster parent— the State educational agency establish

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standards and ensure that those standards are policy or procedure filed under this part § 303.111 Notice of public hearings and
currently met for all programs providing before July 1, 1998, that meets such a opportunity to comment.
special education and related services). requirement, the Secretary considers the The notice required in § 303.110(a)(3)
Section 303.12(a)(6) provides that early State to have met that requirement for must—
intervention services must be provided by
purposes of receiving a grant under this (a) Be published in newspapers or
qualified personnel.
Section 303.361(b) requires statewide part. announced in other media, or both, with
systems to have policies and procedures (c) Amendments to a State’s coverage adequate to notify the general
relating to personnel standards. application. The Secretary may require public, including individuals with
a State to modify its application under disabilities and parents of infants and
§ 303.23 State. this part to the extent necessary to toddlers with disabilities, throughout
Except as provided in § 303.200(b)(3), ensure the State’s compliance with this the State about the hearings and
the term State means each of the 50 part if— opportunity to comment on the
States, the Commonwealth of Puerto (1) An amendment is made to the Act, application or policy; and
Rico, the District of Columbia, and the or to the regulations under this part; (b) Be in sufficient detail to inform the
jurisdictions of Guam, American Samoa, public about—
(2) A new interpretation of the Act is
the Virgin Islands, the Commonwealth (1) The purpose and scope of the State
made by a Federal court or the State’s
of the Northern Mariana Islands. application or policy, and its
highest court; or
relationship to part C of the Act;
(Authority: 20 U.S.C. 1401(27)) (3) An official finding of (2) The length of the comment period
noncompliance with Federal law or and the date, time, and location of each
§ 303.24 EDGAR definitions that apply. regulations is made with respect to the hearing; and
The following terms used in this part State. (3) The procedures for providing oral
are defined in 34 CFR 77.1:
(Authority: 20 U.S.C. 1434 and 1437) comments or submitting written
Applicant comments.
Award § 303.101 How the Secretary disapproves
Contract a State’s application or statement of (Authority: 20 U.S.C. 1437(a)(7))
Department assurances.
§ 303.112 Public hearings.
EDGAR The Secretary follows the procedures
Fiscal year Each State must hold public hearings
in 34 CFR 300.581-300.586 before in a sufficient number and at times and
Grant disapproving a State’s application or
Grantee places that afford interested parties
statement of assurances submitted throughout the State a reasonable
Grant period under this part.
Private opportunity to participate.
Public (Authority: 20 U.S.C. 1437) (Authority: 20 U.S.C. 1437(a)(7))
Secretary Public Participation § 303.113 Reviewing public comments
(Authority: 20 U.S.C. 1431–1445) received.
§ 303.110 General requirements and
Subpart B—State Application for a timelines for public participation. (a) Review of comments. Before
Grant (a) Before submitting to the Secretary adopting its application, and before the
its application under this part, and adoption of a new or revised policy not
General Requirements in the application, the lead agency
before adopting a new or revised policy
that is not in its current application, a must—
§ 303.100 Conditions of assistance.
State must— (1) Review and consider all public
(a) General. (1) In order to receive comments; and
funds under this part for any fiscal year, (1) Publish the application or policy (2) Make any modifications it deems
a State must have on file with the in a manner that will ensure circulation necessary in the application or policy.
Secretary— throughout the State for at least a 60-day (b) Submission to the Secretary. In
(i) A statement of assurances that period, with an opportunity for submitting the State’s application or
meets the requirements of §§ 303.120 comment on the application or policy policy to the Secretary, the lead agency
through 303.128; and for at least 30 days during that period; must include copies of news releases,
(ii) An approved application that (2) Hold public hearings on the advertisements, and announcements
contains— application or policy during the 60-day used to provide notice to the general
(A) The information required in period required in paragraph (a)(1) of public, including individuals with
§§ 303.140–303.148 and 303.161 this section; and disabilities and parents of infants and
through 303.176; and (3) Provide adequate notice of the toddlers with disabilities.
(B) Copies of all applicable State hearings required in paragraph (a)(2) of
statutes, regulations, and other State (Authority: 20 U.S.C. 1437(a)(7))
this section at least 30 days before the
documents that show the basis of that dates that the hearings are conducted. Statement of Assurances
information. (b) A State may request the Secretary
(2) An application that meets the § 303.120 General.
to waive compliance with the timelines
requirements of this part remains in in paragraph (a) of this section. The (a) A State’s statement of assurances
effect until the State submits to the Secretary grants the request if the State must contain the information required
Secretary modifications of that demonstrates that— in §§ 303.121 through 303.128.
application. (b) Unless otherwise required by the
(b) Exception for prior State policies (1) There are circumstances that
Secretary, the statement is submitted
on file with the Secretary. If a State has would warrant such an exception; and
only once, and remains in effect
on file with the Secretary a policy, (2) The timelines that will be followed throughout the term of a State’s
procedure, or assurance that provide an adequate opportunity for participation under this part.
demonstrates that the State meets an public participation and comment. (c) A State may submit a revised
application requirement, including any (Authority: 20 U.S.C. 1437(a)(3)) statement of assurances if the statement

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is consistent with the requirements in this part will be used to supplement the this part will be expended in
§§ 303.121 through 303.128. level of State and local funds expended accordance with the provisions of this
(Authority: 20 U.S.C. 1437(b)) for children eligible under this part and part, including the requirements in
their families and in no case to supplant § 303.3.
§ 303.121 Reports and records. those State and local funds. (Authority: 20 U.S.C. 1437(b)(1))
The statement must provide for— (b)(1) To meet the requirement in
(a) Making reports in such form and paragraph (a) of this section, the total § 303.128 Traditionally underserved
containing such information as the amount of State and local funds groups.
Secretary may require; and budgeted for expenditures in the current The statement must include an
(b) Keeping such records and fiscal year for early intervention services assurance satisfactory to the Secretary
affording access to those records as the for children eligible under this part and that policies and practices have been
Secretary may find necessary to assure their families must be at least equal to adopted to ensure—
compliance with the requirements of the total amount of State and local funds (a) That traditionally underserved
this part, the correctness and actually expended for early intervention groups, including minority, low-income,
verification of reports, and the proper services for these children and their inner-city, and rural families, are
disbursement of funds provided under families in the most recent preceding meaningfully involved in the planning
this part. fiscal year for which the information is and implementation of all the
available. requirements of this part; and
(Authority: 20 U.S.C. 1437(b)(4)) (b) That these families have access to
(2) Allowance may be made for—
§ 303.122 Control of funds and property. (i) Decreases in the number of culturally competent services within
The statement must provide assurance children who are eligible to receive their local geographical areas.
satisfactory to the Secretary that— early intervention services under this (Authority: 20 U.S.C. 1437(b)(7))
(a) The control of funds provided part; and
General Requirements for a State
under this part, and title to property (ii) Unusually large amounts of funds
Application
acquired with those funds, will be in a expended for such long-term purposes
public agency for the uses and purposes as the acquisition of equipment and the § 303.140 General.
provided in this part; and construction of facilities. A State’s application under this part
(b) A public agency will administer (c) For purposes of paragraph (b) of must contain information and
the funds and property. this section, subject to the exceptions in assurances demonstrating to the
(Authority: 20 U.S.C. 1437(b)(3))
paragraph (b)(2) of this section, a State satisfaction of the Secretary that—
must be able to demonstrate, in any (a) The statewide system of early
§ 303.123 Prohibition against fiscal year, that the total amount of State intervention services required in
commingling. and local funds expended for early § 303.160 is in effect; and
(a)(1) The statement must include an intervention services equaled or (b) A State policy is in effect that
assurance satisfactory to the Secretary exceeded the lesser of— ensures that appropriate early
that funds made available under this (1) The budgeted amount that is intervention services are available to all
part will not be commingled with State referenced in paragraph (b) of this infants and toddlers with disabilities in
funds. section, for that same fiscal year; and the State and their families, including
(2) As used in this part, commingle (2) The amount actually expended for Indian infants and toddlers with
means depositing or recording funds in early intervention services in the most disabilities and their families residing
a general account without the ability to recent preceding fiscal year. on a reservation geographically located
identify each specific source of funds (Authority: 20 U.S.C. 1437(b)(5)(B)) in the State.
for any expenditure. (Authority: 20 U.S.C. 1434 and 1435(a)(2))
(b) The assurance in paragraph (a)(1) § 303.125 Fiscal control.
of this section is satisfied by the use of The statement must provide assurance § 303.141 Information about the Council.
an accounting system that includes an satisfactory to the Secretary that fiscal Each application must include
audit trail of the expenditure of funds control and fund accounting procedures information demonstrating that the State
awarded under this part. Separate bank will be adopted to the extent necessary has established a State Interagency
accounts are not required. to ensure proper disbursement of, and Coordinating Council that meets the
(c) To the extent that funds from accounting for, Federal funds paid requirements of subpart G of this part.
Federal, State, local, and private under this part. (Authority: 20 U.S.C. 1437(a)(3))
funding sources can be identified, with (Authority: 20 U.S.C. 1437(b)(6))
a clear audit trail for each source, a § 303.142 Designation of lead agency.
State, at its discretion— § 303.126 Payor of last resort. Each application must include a
(1) May allow those funds to be The statement must include an designation of the lead agency in the
consolidated for carrying out the assurance satisfactory to the Secretary State that will be responsible for the
requirements of this part; and that the State will comply with the administration of funds provided under
(2) May set out a funding plan that provisions in § 303.527, including the this part.
incorporates, and accounts for, all requirements on— (Authority: 20 U.S.C. 1437(a)(1))
sources of funds that can be targeted on (a) Nonsubstitution of funds; and
a given activity or function related to (b) Non-reduction of other benefits. § 303.143 Designation regarding financial
the State’s early intervention program. responsibility.
(Authority: 20 U.S.C. 1437(b)(2))
Each application must include a
(Authority: 20 U.S.C. 1437(b)(5)(A))
§ 303.127 Assurance regarding designation by the State of an individual
§ 303.124 Prohibition against supplanting. expenditure of funds. or entity responsible for assigning
(a) The statement must include an The statement must include an financial responsibility among
assurance satisfactory to the Secretary assurance satisfactory to the Secretary appropriate agencies.
that Federal funds made available under that the funds paid to the State under (Authority: 20 U.S.C. 1437(a)(2))

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§ 303.144 Assurance regarding use of (f) Activities by other agencies. If § 303.401(a), before transmitting any
funds. other agencies are to receive funds records about the child.
Each application must include an under this part, the application must (ii) The records referred to in
assurance that funds received under this include— paragraph (c) of this section include any
part will be used to assist the State to (1) The name of each agency expected personally identifiable information
maintain and implement the statewide to receive funds; about the child, including—
system required under subparts D (2) The approximate amount of funds (A) Evaluation and assessment
through F of this part. each agency will receive; and information required in § 303.322; and
(Authority: 20 U.S.C. 1475, 1437(a)(3))
(3) A summary of the purposes for (B) Copies of IFSPs that have been
which the funds will be used. developed and implemented in
§ 303.145 Description of use of funds. (Authority: 20 U.S.C. 1437(a)(3) and (a)(5)) accordance with §§ 303.340 through
(a) General. Each application must 303.346.
include a description of how a State § 303.146 Information about public (3) Consent is not required before
proposes to use its funds under this part participation. transmitting directory information about
for the fiscal year or years covered by Each application must include the a child to an LEA (e.g., the child’s name,
the application. The description must be information on public participation that address, telephone number, and age), if
presented separately for the lead agency is required in § 303.113(b). the information is provided for the
and the Council, and include the (Authority: 20 U.S.C. 1437(a)(7)) specific purpose of assisting the LEA in
information required in paragraphs (b) implementing the child find
through (e) of this section. § 303.147 Services to all geographic areas. requirements under 34 CFR 300.125.
(b) Administrative positions. Each Each application must include a (d) Conference to discuss services.
application must include— description of the procedure used to The application must describe how the
(1) A list of administrative positions, ensure that resources are made available lead agency will—
with salaries, and a description of the under this part for all geographic areas (1) In the case of a child who may be
duties for each person whose salary is within the State. eligible for preschool services under
paid in whole or in part with funds (Authority: 20 U.S.C. 1437(a)(6)) Part B of the Act, with the approval of
awarded under this part; and the parents of the child, convene a
(2) For each position, the percentage § 303.148 Transition to preschool or other conference among the lead agency, the
of salary paid with those funds. appropriate services. family, and the LEA at least 90 days
(c) Maintenance and implementation (a) General. Each application must (and at the discretion of the parties, up
activities. Each application must include a description of the policies and to 6 months) before the child is eligible
include— procedures to be used to ensure a for the preschool services, to discuss
(1) A description of the nature and smooth transition for children receiving any services that the child may receive;
scope of each major activity to be early intervention services under this or
carried out under this part in part to preschool or other appropriate (2) In the case of a child who may not
maintaining and implementing the services, including the information be eligible for preschool services under
statewide system of early intervention required in paragraphs (b) through (f) of Part B of the Act, with the approval of
services; and this section. the parents of the child, make
(2) The approximate amount of funds (b) Family involvement; notification of reasonable efforts to convene a
to be spent for each activity. local educational agency. The conference among the lead agency, the
(d) Direct services. (1) Each application must describe— family, and providers of other
application must include a description (1) How the families of children appropriate services for children who
of any direct services that the State served under this part will be included are not eligible for preschool services
expects to provide to eligible children in the transition plans for the children; under Part B, to discuss the appropriate
and their families with funds under this and services that the child may receive.
part, including a description of any (2) How the lead agency under this (e) Program options; transition plan.
services provided to at-risk infants and part will notify the local educational The application must include a
toddlers as defined in § 303.16(b), and agency (LEA) for the area in which an description of the policies and
their families, consistent with eligible child resides that the child will procedures to be used—
§§ 303.521 and 303.527; shortly reach the age of eligibility for (1) To review the child’s program
(2) The description must include preschool services under Part B of the options for the period from the child’s
information about each type of service Act, as determined in accordance with third birthday through the remainder of
to be provided, including— State law.
(i) A summary of the methods to be the school year; and
(c) Transmittal of records; parental
used to provide the service (e.g., (2) To establish a transition plan for
consent. (1) The application must
contracts or other arrangements with the child.
include, in accordance with paragraphs
specified public or private (f) Interagency agreement. If the State
(c)(2) and (c)(3) of this section, a
organizations); and educational agency (SEA) (the agency
description of the policies and
(ii) The approximate amount of funds responsible for administering preschool
procedures for transmitting records
under this part to be used for the programs under part B of the Act) is not
about the child to an LEA, or any other
service. the lead agency under this part, the
agency, for the purposes of—
(e) At-risk infants and toddlers. For (i) Facilitating the child’s smooth policies and procedures described in
any State that does not provide direct transition to preschool or other paragraph (a) of this section must
services for at-risk infants and toddlers appropriate services; and provide for the establishment of an
described in paragraph (d)(1) of this (ii) Ensuring continuity of services for interagency agreement between the lead
section, but chooses to use funds as the child. agency and the SEA, to ensure
described in § 303.3(e), each application (2)(i) Subject to paragraph (c)(3) of appropriate coordination on transition
must include a description of how those this section, the lead agency must obtain matters.
funds will be used. parental consent, in accordance with (Authority: 20 U.S.C. 1437(a)(8))

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Note: Among the matters that should be § 303.165 Comprehensive child find § 303.170 Procedural safeguards.
considered in developing policies and system. Each application must include
procedures to ensure a smooth transition of Each application must include— procedural safeguards that—
children from one program to the other are (a) Are consistent with §§ 303.400
(a) The policies and procedures
the following:
required in § 303.321(b); through 303.406, 303.419 through
The financial responsibilities of all
(b) Information demonstrating that the 303.425 and 303.460; and
appropriate agencies.
The responsibility for performing requirements on coordination in (b) Incorporate either—
evaluations of children. § 303.321(c) are met; (1) The due process procedures in 34
The development and implementation of (c) The referral procedures required in CFR 300.506 through 300.512; or
an individualized education program (IEP) or § 303.321(d), and either— (2) The procedures that the State has
an IFSP for each child, consistent with the developed to meet the requirements in
(1) A description of how the referral
requirements of law (see § 303.344(i), section §§ 303.419, 303.420(b), and 303.421
sources are informed about the
612(a)(9) of the Act, and 34 CFR 300.132). through 303.425.
procedures; or
The coordination of communication (Authority: 20 U.S.C. 1435(a)(13))
between agencies and the child’s family.
(2) A copy of any memorandum or
The mechanisms to ensure the other document used by the lead agency § 303.171 Supervision and monitoring of
uninterrupted provision of appropriate to transmit the procedures to the referral programs.
services to the child. sources; and Each application must include
(d) The timelines in § 303.321(e). information to show that the
Components of a Statewide System— (Authority: 20 U.S.C. 1435(a)(5)) requirements in § 303.501 are met.
Application Requirements
§ 303.166 Evaluation, assessment, and (Authority: 20. U.S.C. 1435(a)(10)(A))
§ 303.160 Minimum components of a nondiscriminatory procedures. § 303.172 Lead agency procedures for
statewide system.
Each application must include resolving complaints.
Each application must address the information to demonstrate that the Each application must include
minimum components of a statewide requirements in §§ 303.322 and 303.323 procedures that are consistent with the
system of coordinated, comprehensive, are met. requirements in §§ 303.510 through
multidisciplinary, interagency programs (Authority: 20 U.S.C. 1435(a)(3); 1436(a)(1), 303.512.
providing appropriate early intervention (d)(2), and (d)(3)) (Authority: 20 U.S.C. 1435(a)(10))
services to all infants and toddlers with
disabilities and their families, including § 303.167 Individualized family service § 303.173 Policies and procedures related
Indian infants and toddlers with plans. to financial matters.
disabilities and their families residing Each application must include the Each application must include/the
on a reservation geographically located following: following:
in the State. The minimum components (a) An assurance that a current IFSP (a) Funding policies that meet the
of a statewide system are described in is in effect and implemented for each requirements in § 303.519.
§§ 303.161 through 303.176. eligible child and the child’s family. (b)(1) Information about funding
(Authority: 20 U.S.C. 1435(a), 1437(a)(9)) (b) Information demonstrating that— sources, as required in § 303.522,
(1) The State’s procedures for including the identification of each
§ 303.161 State definition of State agency that provides early
developmental delay. developing, reviewing, and evaluating
IFSPs are consistent with the intervention services, or funding for
Each application must include the requirements in §§ 303.340 through those services, for children eligible
State’s definition of developmental 303.343, and 303.345; and under Part C, even if the agency does
delay, as required in § 303.300(b). (2) The content of IFSPs used in the not receive Part C funds.
State is consistent with the (2) The information required in
(Authority: 20 U.S.C. 1435(a)(1))
requirements in § 303.344. paragraph (b)(1) of this section must
§ 303.162 Central directory. include—
(c) Policies and procedures on natural
environments that meet the (i) The name of the agency; and
Each application must include (ii)(A) The specific funds used by the
information and assurances requirements of §§ 303.341 and
303.344(d)(3). agency for early intervention services
demonstrating to the satisfaction of the (e.g., State Medicaid or State special
Secretary that the State has developed a (Authority: 20 U.S.C. 1435(a)(4), 1436(d)) education funds); and
central directory of information that
§ 303.168 Comprehensive system of (B) The intended use of those funds.
meets the requirements in § 303.301.
personnel development (CSPD). (c) Procedures to ensure the timely
(Authority: 20 U.S.C. 1435(a)(7)) delivery of services, in accordance with
Each application must include
§ 303.525.
§ 303.163 [Reserved] information to show that the
requirements in § 303.360(b) are met. (d) A procedure related to the timely
§ 303.164 Public awareness program. reimbursement of funds under this part,
(Authority: 20 U.S.C. 1435(a)(8)) in accordance with §§ 303.527(b) and
Each application must include 303.528.
information and assurances § 303.169 Personnel standards.
demonstrating to the satisfaction of the Each application must include (Authority: 20 U.S.C. 1435(a)(10) (D) and (E),
1435(a)(12), 1440)
Secretary that the State has established policies and procedures that are
a public awareness program that meets consistent with the requirements in § 303.174 Interagency agreements;
the requirements in § 303.320. § 303.361. resolution of individual disputes.
(Authority: 20 U.S.C. 1435(a)(6)) (Authority: 20 U.S.C. 1435(a)(9)) Each application must include—

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(a) A copy of each interagency under this part for distribution to the Subpart D—Program and Service
agreement that has been developed States, the Secretary allots to each State Components of a Statewide System of
under § 303.523; and an amount that bears the same ratio to Early Intervention Services
(b) Information to show that the the aggregate amount as the number of
requirements in § 303.524 are met. infants and toddlers in the State bears General
(Authority: 20 U.S.C. 1435(a)(10)(E) and (F)) to the number of infants and toddlers in § 303.300 Child eligibility—criteria and
all States. procedures.
§ 303.175 Policy for contracting or
otherwise arranging for services.
(b) For the purpose of allotting funds (a) General. (1) Each statewide system
to the States under paragraph (a) of this of early intervention services (system)
Each application must include a section—
policy that meets the requirements in must include the eligibility criteria and
§ 303.526. (1) Aggregate amount means the procedures, consistent with § 303.16,
amount available for distribution to the that—
(Authority: 20 U.S.C. 1435(a)(11)) States after the Secretary determines the (i) Will be used by the State in
§ 303.176 Data collection. amount of payments to be made to the carrying out programs under this part;
Each application must include Secretary of the Interior under § 303.203 and
procedures that meet the requirements and to the jurisdictions under § 303.204; (ii) Meet the requirements in
in § 303.540. (2) Infants and toddlers means paragraphs (b) through (d) of the
(Authority: 20 U.S.C. 1435(a)(14))
children from birth through age two in section.
the general population, based on the (2) The information required in
Participation by the Secretary of the most recent satisfactory data as paragraph (a)(1) of this section must be
Interior determined by the Secretary; and on file in the State, and be available for
§ 303.180 Payments to the Secretary of the (3) State means each of the 50 States, public review.
Interior for Indian tribes and tribal the District of Columbia, and the (b) State definition of developmental
organizations. Commonwealth of Puerto Rico. delay. The State must define
(a) The Secretary makes payments to (Authority: 20 U.S.C. 1443(c)) developmental delay by—
the Secretary of the Interior for the (1) Describing, for each of the areas
coordination of assistance in the § 303.201 Distribution of allotments from
listed in § 303.16(a)(1), the procedures,
provision of early intervention services non-participating States.
including the use of informed clinical
by the States to infants and toddlers If a State elects not to receive its opinion, that will be used to measure a
with disabilities and their families on allotment, the Secretary reallots those child’s development; and
reservations served by elementary and funds among the remaining States, in (2) Stating the levels of functioning or
secondary schools for Indian children accordance with § 303.200(a). other criteria that constitute a
operated or funded by the Department (Authority: 20 U.S.C. 1443(d)) developmental delay in each of those
of the Interior. areas.
(b)(1) The Secretary of the Interior § 303.202 Minimum grant that a State may
(c) Diagnosed condition. The State
must distribute payments under this receive.
must describe the criteria and
part to tribes or tribal organizations (as No State receives less than 0.5 percent procedures, including the use of
defined under section 4 of the Indian of the aggregate amount available under informed clinical opinion, that will be
Self-Determination and Education § 303.200 or $500,000, whichever is used to determine the existence of a
Assistance Act), or combinations of greater. condition that has a high probability of
those entities, in accordance with resulting in developmental delay under
(Authority: 20 U.S.C. 1443(c)(2))
section 684(b) of the Act. § 303.16(a)(2).
(2) A tribe or tribal organization is § 303.203 Payments to the Secretary of the
eligible to receive a payment under this (d) Children who are at risk. If the
Interior.
section if the tribe is on a reservation State elects to include in its system
that is served by an elementary or The amount of the payment to the children who are at risk under
secondary school operated or funded by Secretary of the Interior under § 303.180 § 303.16(b), the State must describe the
the Bureau of Indian Affairs (BIA). for any fiscal year is 1.25 percent of the criteria and procedures, including the
(c)(1) Within 90 days after the end of aggregate amount available to States use of informed clinical opinion, that
each fiscal year the Secretary of the after the Secretary determines the will be used to identify those children.
Interior must provide the Secretary with amount of payments to be made to the (Authority: 20 U.S.C. 1432(5), 1435(a)(1))
a report on the payments distributed jurisdictions under § 303.204.
Note to § 303.300: Under this section and
under this section. (Authority: 20 U.S.C. 1443(b)) 303.322(c)(2), States are required to ensure
(2) The report must include— that informed clinical opinion is used in
(i) The name of each tribe, tribal § 303.204 Payments to the jurisdictions.
determining a child’s eligibility under this
organization, or combination of those (a) From the sums appropriated to part. Informed clinical opinion is especially
entities that received a payment for the carry out this part for any fiscal year, the important if there are no standardized
fiscal year; Secretary may reserve up to 1 percent measures, or if the standardized procedures
(ii) The amount of each payment; and for payments to the jurisdictions listed are not appropriate for a given age or
(iii) The date of each payment. developmental area. If a given standardized
in § 303.2 in accordance with their
procedure is considered to be appropriate, a
(Authority: 20 U.S.C. 1443(b)) respective needs. State’s criteria could include percentiles or
(b) The provisions of Pub. L. 95–134, percentages of levels of functioning on
Subpart C—Procedures for Making permitting the consolidation of grants to standardized measures.
Grants to States the outlying areas, do not apply to funds
§ 303.200 Formula for State allocations. provided under paragraph (a) of this § 303.301 Central directory.
(a) For each fiscal year, from the section. (a) Each system must include a central
aggregate amount of funds available (Authority: 20 U.S.C. 1443(a)) directory of information about—

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(1) Public and private early coordination is an on-going, designed and implemented to ensure
intervention services, resources, and coordinative process designed to that service coordinators are able to
experts available in the State; facilitate and enhance the delivery of effectively carry out on an interagency
(2) Research and demonstration early intervention services under this basis the functions and services listed
projects being conducted in the State; part. Therefore, service coordination is under paragraphs (a) and (b) of this
and not required to be included in the section.
(3) Professional and other groups statement of services under (f) Qualifications of service
(including parent support groups and § 303.344(d)(1). coordinators. Service coordinators must
advocate associations) that provide (c) Scope of service coordination. be persons who, consistent with
assistance to children eligible under this Service coordination is an active, § 303.344(h), have demonstrated
part and their families. ongoing process that involves— knowledge and understanding about—
(b) The information required in (1) Assisting parents of eligible (1) Infants and toddlers who are
paragraph (a) of this section must be in children in gaining access to the early eligible under this part;
sufficient detail to— intervention services and other services (2) Part C of the Act and the
(1) Ensure that the general public will identified in the individualized family regulations in this part; and
be able to determine the nature and service plan;
scope of the services and assistance (3) The nature and scope of services
(2) Coordinating the provision of early available under the State’s early
available from each of the sources listed intervention services and other services
in the directory; and intervention program, the system of
(such as medical services for other than payments for services in the State, and
(2) Enable the parent of a child diagnostic and evaluation purposes) that
eligible under this part to contact, by other pertinent information.
the child needs or is being provided;
telephone or letter, any of the sources (3) Facilitating the timely delivery of (Authority: 20 U.S.C. 1432(4); 14353(a)(4),
listed in the directory. 1436(d)(7), H.R. Rep. No. 198, 102d Cong.,
available services; and 1st Sess. 12 (1991); S. Rep. No. 84, 102d
(c) The central directory must be— (4) Continuously seeking the
(1) Updated at least annually; and Cong., 1st Sess. 20 (1991).
(2) Accessible to the general public. appropriate services and situations
necessary to benefit the development of Identification and Evaluation
(d) To meet the requirements in
paragraph (c)(2) of this section, the lead each child being served for the duration
§ 303.320 Public awareness program.
agency must arrange for copies of the of the child’s eligibility.
(d) Specific service coordination (a) Each system must include a public
directory to be available— awareness program that—
(1) In each geographic region of the activities. Service coordination
activities include— (1) Focuses on the early identification
State, including rural areas; and
(2) In places and a manner that ensure (1) Coordinating the performance of of children who are eligible to receive
accessibility by persons with evaluations and assessments; early intervention services under this
disabilities. (2) Facilitating and participating in part; and
the development, review, and (2) Includes—
Authority: 20 U.S.C. 1435(a)(7)) (i) The preparation by the lead agency
evaluation of IFSPs;
§ 303.302 Service coordination. (3) Assisting families in identifying of information for parents on the
(a) General. (1) Each system must available service providers; availability of early intervention
ensure that service coordination is (4) Coordinating and monitoring the services under this part, and how to
available to assist and enable a child delivery of available services; access those services; and
eligible under this part and the child’s (5) Informing families of the (ii)(A) The agency’s dissemination of
family to receive the rights, procedural availability of advocacy services; the information to all primary referral
safeguards, and services that are (6) Coordinating with medical and sources identified in § 303.321(d)(3)
authorized to be provided under the health providers; (especially physicians and hospitals) for
State’s early intervention program. (7) Facilitating the development of a their use in providing the information to
(2)(i) If a State has an existing service transition plan to preschool services, if parents of infants and toddlers; and
coordination system, the State may use appropriate; and (B) Procedures for determining the
or adapt that system, so long as it is (8) At the discretion of the State, extent to which the primary referral
consistent with the requirements of this assisting families— sources disseminate the information to
part. (i) To understand the sources of the parents.
(ii) A public agency’s use of the term financing early intervention services, (b) The public awareness program
service coordination is not intended to including public and private insurance must provide for informing the public
affect the agency’s authority to seek programs, and how to access those about—
reimbursement for services provided sources; and (1) The State’s early intervention
under Medicaid or any other legislation (ii) To be knowledgeable about any program;
that makes reference to case potential long-term costs involved in (2) The child find system, including—
management services. accessing the sources described in (i) The purpose and scope of the
(b) Entitlement to service paragraph (d)(8)(i) of this section, and system;
coordination. (1) Each eligible child and how to minimize those costs.
(ii) How to make referrals; and
the child’s family must be provided (e) Employment and assignment of
(iii) How to gain access to a
with one service coordinator who is service coordinators. (1) Service
comprehensive, multidisciplinary
responsible for— coordinators may be employed or
evaluation and other early intervention
(i) Coordinating all services across assigned in any way that is permitted
services; and
agency lines; and under State law, so long as it is
consistent with the requirements of this (3) The central directory.
(ii) Serving as the single point of
contact in helping parents to obtain the part. (Authority: 20 U.S.C. 1435(a)(6))
services and assistance they need. (2) A State’s policies and procedures Note 1 to § 303.320: An effective public
(2) In accordance with paragraphs for implementing the statewide system awareness program is one that does the
(b)(1), (c), and (d) of this section, service of early intervention services must be following:

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Provides a continuous, ongoing effort that (ii) Maternal and Child Health agency receives a referral, it must
is in effect throughout the State, including program under title V of the Social appoint a service coordinator as soon as
rural areas; Security Act; possible.
Provides for the involvement of, and (iii) Early Periodic Screening, (2) Within 45 days after it receives a
communication with, major organizations
Diagnosis and Treatment (EPSDT) referral, the public agency must—
throughout the State that have a direct
interest in this part, including public program under title XIX of the Social (i) Complete the evaluation and
agencies at the State and local level, private Security Act; assessment activities in § 303.322; and
providers, professional associations, parent (iv) Developmental Disabilities (ii) Hold an IFSP meeting, in
groups, advocate associations, and other Assistance and Bill of Rights Act; accordance with § 303.342.
organizations; (v) Head Start Act; and (Authority: 20 U.S.C. 1431(a)(5),
Has coverage broad enough to reach the (vi) Supplemental Security Income 1432(4)(E)(vii), 1435(a)(5))
general public, including those who have program under title XVI of the Social
disabilities; and Note to § 303.321: In developing the child
Security Act. find system under this part, States should
Includes a variety of methods for informing (2) The lead agency, with the advice
the public about the provisions of this part. consider tracking systems based on high-risk
and assistance of the Council, must take conditions at birth, and other activities that
steps to ensure that— are being conducted by various agencies or
Note 2 to § 303.320: Examples of methods
for informing the general public about the
(i) There will not be unnecessary organizations in the State.
provisions of this part include: use of duplication of effort by the various
television, radio, and newspaper releases, agencies involved in the State’s child § 303.322 Evaluation and assessment.
pamphlets and posters displayed in find system under this part; and (a) General. (1) Each system must
physicians’ offices, hospitals, and other (ii) The State will make use of the include the performance of—
appropriate locations, and the use of a toll- resources available through each public (i) A timely, comprehensive,
free telephone service. agency in the State to implement the multidisciplinary evaluation of each
child find system in an effective child, birth through age two, referred for
§ 303.321 Comprehensive child find manner. evaluation; and
system. (d) Referral procedures. (1) The child (ii) A family-directed identification of
(a) General. (1) Each system must find system must include procedures for the needs of each child’s family to
include a comprehensive child find use by primary referral sources for appropriately assist in the development
system that is consistent with part B of referring a child to the appropriate of the child, that meets the requirements
the Act (see 34 CFR 300.125), and meets public agency within the system for— of paragraph (d) of this section.
the requirements of paragraphs (b) (i) Evaluation and assessment, in (2) The lead agency must be
through (e) of this section. accordance with §§ 303.322 and responsible for ensuring that the
(2) The lead agency, with the advice 303.323; or requirements of this section are
and assistance of the Council, must be (ii) As appropriate, the provision of implemented by all affected public
responsible for implementing the child services, in accordance with agencies and service providers in the
find system. § 303.342(a) or § 303.345. State.
(b) Policies and procedures. The child (2) The procedures required in (b) Definitions of evaluation and
find system must include the policies paragraph (b)(1) of this section must— assessment. As used in this part—
and procedures that the State will (i) Provide for an effective method of (1) Evaluation means the procedures
follow to ensure that— making referrals by primary referral used by appropriate qualified personnel
(1) All infants and toddlers in the sources; to determine a child’s initial and
State who are eligible for services under (ii) Ensure that referrals are made as continuing eligibility under this part,
this part are identified, located, and soon as reasonably possible after a child consistent with the definition of
evaluated, including children with has been identified; and ‘‘infants and toddlers with disabilities’’
disabilities from— (iii) Include, in accordance with in § 303.16, including determining the
(i) Traditionally underserved groups, § 303.320(a)(2)(ii)(B), procedures for status of the child in each of the
including minority, low-income, inner- determining the extent to which developmental areas in paragraph
city, and rural families; and primary referral sources, especially (c)(3)(ii) of this section.
(ii) Highly mobile groups (such as hospitals and physicians, disseminate (2) Assessment means the ongoing
migrant and homeless families); and information on the availability of early procedures used by appropriate
(2) An effective method is developed intervention services to parents of qualified personnel throughout the
and implemented to determine which infants and toddlers. period of a child’s eligibility under this
children are receiving needed early (3) As used in paragraph (d)(1) of this part to identify—
intervention services. section, primary referral sources (i) The child’s unique strengths and
(c) Coordination. (1) The lead agency, includes, if appropriate— needs and the services appropriate to
with the assistance of the Council, must (i) Hospitals, including prenatal and meet those needs; and
ensure that the child find system under postnatal care facilities; (ii) The resources, priorities, and
this part is coordinated with all other (ii) Physicians; concerns of the family, and the supports
major efforts to locate and identify (iii) Parents; and services necessary to enhance the
children conducted by other State (iv) Day care and child care programs; family’s capacity to meet the
agencies responsible for administering (v) Local educational agencies; developmental needs of the child.
the various education, health, and social (vi) Public health facilities; (c) Evaluation and assessment of the
service programs relevant to this part, (vii) Other social service agencies; child. The evaluation and assessment of
tribes and tribal organizations that (viii) Other health care providers; and each child must—
receive payments under this part, and (ix) Other Federally funded programs (1) Be conducted by personnel trained
other tribes and tribal organizations as such as Head Start, Early Head Start, to utilize appropriate methods and
appropriate, including efforts in the— and Even Start. procedures;
(i) Program authorized under part B of (e) Timelines for public agencies to (2) Be based on informed clinical
the Act; act on referrals. (1) Once the public opinion; and

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(3) Include the following: must provide that public agencies § 303.341 Policies and procedures on
(i) A review of pertinent records responsible for the evaluation and natural environments.
related to the child’s current health assessment of children and families (a) General. Each system must have in
status and medical history. under this part must ensure, at a effect, in accordance with paragraphs (b)
(ii) An evaluation of the child’s level minimum, that— through (d) of this section, policies and
of functioning in each of the following (a) Tests and other evaluation procedures to ensure that—
developmental areas: materials and procedures are (1) To the maximum extent
(A) Cognitive development. administered in the native language of appropriate, early intervention services
(B) Physical development, including the parents or other mode of are provided in natural environments;
vision and hearing. communication, unless it is clearly not and
(C) Communication development. feasible to do so; (2) The provision of early intervention
(D) Social or emotional development. (b) Any assessment and evaluation services for each eligible child occurs in
(E) Adaptive development. procedures and materials that are used a setting other than a natural
(iii) An assessment of the unique are selected and administered so as not environment only if the IFSP team,
needs of the child in terms of each of to be racially or culturally based on the evaluation and assessment
the developmental areas in paragraph discriminatory; required in § 303.322 and the
(c)(3)(ii) of this section, including the (c) No single procedure is used as the information required in § 303.344(a)
identification of services appropriate to sole criterion for determining a child’s through (c), determines that early
meet those needs. eligibility under this part; and intervention cannot be achieved
(d) Family assessment. (1) Family (d) Evaluations and assessments are satisfactorily for the child in a natural
assessments under this part must be conducted by qualified personnel. environment.
family-directed and designed to (b) Determination of natural
(Authority: 20 U.S.C. 1435(a)(3); 1436(a)(1),
determine the resources, priorities, and (d)(2), and (d)(3)) environment for each IFSP service. (1)
concerns of the family and the The IFSP team for each eligible child
identification of the supports and Individualized Family Service Plans under this part must determine, for each
services necessary to enhance the (IFSPs) early intervention service to be provided
family’s capacity to meet the § 303.340 Definition of IFSP; lead agency
to the child, if the child’s needs can be
developmental needs of the child. responsibility. met in a natural environment.
(2) Any assessment that is conducted (2) If, after making the determinations
(a) Definition of IFSP. As used in this
must be voluntary on the part of the required by paragraph (b)(1) of this
part, individualized family service plan
family. section, the team determines that a
and IFSP mean a written plan for
(3) If an assessment of the family is specific service for the child must be
providing early intervention services to
carried out, the assessment must— provided in a setting other than a
a child eligible under this part and the
(i) Be conducted by personnel trained natural environment (such as in a
child’s family that—
to utilize appropriate methods and (1) Is developed by the child’s IFSP center-based program that serves
procedures; team, in accordance with §§ 303.341 children with disabilities, or another
(ii) Be based on information provided through 303.343; setting appropriate to the age and needs
by the family through a personal (2) Is based on the evaluation and of the child), a justification that meets
interview; and assessment described in § 303.322; and the requirements of paragraph (c) of this
(iii) Incorporate the family’s (3) Includes the information required section must be included in the child’s
description of its resources, priorities, in § 303.344, as determined by the IFSP IFSP.
and concerns related to enhancing the team. (c) Justification. The justification
child’s development. (b) Lead agency responsibility. The required in paragraph (b)(2) of this
(e) Timelines. (1) Except as provided lead agency in each State must ensure section must—
in paragraph (e)(2) of this section, the that— (1) Include a statement describing the
evaluation and initial assessment of (1) The State’s early intervention basis of the IFSP team’s decision to
each child (including the family system under this part has in effect provide a specific early intervention
assessment) must be completed within policies and procedures on IFSPs that service for the child in a setting other
the 45-day time period required in meet the requirements of this section than a natural environment;
§ 303.321(e). and §§ 303.341 through 303.346; and (2) Be based on the identified needs
(2) The lead agency must develop (2)(i) An IFSP is developed and of the child and the projected outcomes,
procedures to ensure that in the event implemented for each eligible child, in as determined by the evaluation and
of exceptional circumstances that make accordance with the requirements of assessment required in § 303.322 and
it impossible to complete the evaluation this part. the information required in § 303.344(a)
and assessment within 45 days (e.g., if (ii) If there is a dispute between through (c); and
a child is ill), public agencies will— agencies as to who has responsibility for (3) If appropriate, be based on the
(i) Document those circumstances; developing or implementing an IFSP, nature of the service required to meet
and the lead agency must resolve the dispute the unique needs of the child.
(ii) Develop and implement an or assign responsibility. (d) Services to parents or other family
interim IFSP, to the extent appropriate members. The provisions on natural
(Authority: 20 U.S.C. 1436) environments in this part do not apply
and consistent with § 303.345(b)(1) and
(b)(2). Note to § 303.340: In instances where an to services listed in an IFSP that are
eligible child must have both an IFSP and an intended to meet the needs of the
(Authority: 20 U.S.C. 1435(a)(3); 1436(a)(1), individualized service plan under another
(a)(2), (d)(1), and (d)(2))
parents or other family members and
Federal program, it may be possible to not the needs of the child (e.g.,
develop a single consolidated document,
§ 303.323 Nondiscriminatory procedures. participation of a parent in a parent-
provided that it contains all of the required
Each lead agency must adopt information in § 303.344, and is developed in support program).
nondiscriminatory evaluation and accordance with the requirements of this (Authority: 20 U.S.C. 1435(a)(4), (a)(16),
assessment procedures. The procedures part. 1436(d)(5))

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§ 303.342 Development, review, and (2) The results of any current (v) A person or persons directly
revision of IFSPs. evaluations conducted under involved in conducting the evaluations
(a) Development of IFSP. (1) General. § 303.322(c), and other information and assessments in § 303.322.
For a child who has been evaluated for available from the ongoing assessment (vi) As appropriate, persons who will
the first time and determined to be of the child and family, are used at the be providing services to the child or
eligible, a meeting to develop the initial meeting in determining what services family.
IFSP for the child must be conducted are needed and will be provided. (2) If a person listed in paragraph
within the 45-day time period required (d) Accessibility and convenience of (a)(1)(v) of this section (who has been
in § 303.321(e). meetings. (1) IFSP meetings must be directly involved in conducting
(2) Consideration of special factors. In conducted— evaluations or assessments) is unable to
developing each child’s IFSP, the IFSP (i) In settings and at times that are
attend an IFSP meeting, the public
team must— convenient to families; and
agency must take steps to ensure—
(i) In the case of a child whose (ii) In the native language of the
family or other mode of communication (i) The person’s involvement through
behavior impedes his or her
used by the family, unless it is clearly other means (e.g., participating in a
development, consider, if appropriate,
not feasible to do so; and telephone conference call); or
strategies, including positive behavioral
interventions, strategies, and supports to (2) Meeting arrangements are made (ii) That the results of the evaluations
address that behavior; with, and written notice provided to, and assessments are appropriately
(ii) In the case of a child of a family the family and other participants early interpreted at the meeting, by making
with limited English proficiency, enough before the meeting date to pertinent records available at the
consider the language needs of the child ensure that they will be able to attend. meeting, and having a person attend the
and the family as those needs relate to (e) Parental consent before providing meeting who is qualified to interpret the
the child’s IFSP; services. The contents of the IFSP must evaluation and assessment results and
(iii) In the case of a child who is blind be fully explained to the parents and their service implications (who may be
or visually impaired, if appropriate, informed written consent from the one of the participants described in
provide for exposing the child to pre- parents must be obtained prior to the paragraphs (a)(1)(i) through (a)(1)(vi) of
literacy or readiness activities related to provision of early intervention services this section).
the use of Braille (e.g., through tactile described in the plan. If the parents do (b) Periodic reviews. Each periodic
stimulation and the use of ‘‘raised’’ not provide consent with respect to a review must provide for the
picture books); particular early intervention service or participation of persons in paragraphs
(iv) Consider the communication withdraw consent after first providing (a)(1)(i) through (a)(1)(iv) of this section.
needs of the child, and, in the case of it, that service may not be provided. The If conditions warrant, provisions must
a child who is deaf or hard of hearing, early intervention services to which be made for the participation of other
consider— parental consent is obtained must be representatives identified in paragraph
(A) The appropriateness of oral provided. (a) of this section.
stimulation and language-development (Authority: 20 U.S.C. 1436) (Authority: 20 U.S.C. 1436(b))
activities; and
Note to § 303.342: The requirement for the § 303.344 Content of IFSP.
(B) Opportunities for direct annual evaluation incorporates the periodic
communication with peers, professional review process. Therefore, it is necessary to (a) Information about child’s status.
personnel, and deaf adults in the child’s have only one separate periodic review each (1) The IFSP must include a statement
language and communication mode, year (i.e., six months after the initial and of the child’s present levels of physical
consistent with the developmental level subsequent annual IFSP meetings), unless development (including vision, hearing,
of the child; and conditions warrant otherwise. and health status), cognitive
(v) Consider whether the child Because the needs of infants and toddlers
change so rapidly during the course of a year, development, communication
requires assistive technology devices development, social or emotional
certain evaluation or assessment procedures
and services. may need to be repeated before conducting development, and adaptive
(b) Periodic review. (1) A review of the the periodic reviews and annual evaluation development.
IFSP for each eligible child and the meetings in paragraphs (b) and (c) of this (2) The statement required in
child’s family must be conducted every section. paragraph (a)(1) of this section must be
six months, or more frequently if based on professionally acceptable
conditions warrant or if the family § 303.343 IFSP team—meetings and objective criteria.
requests a review. periodic reviews.
(2) The purpose of the periodic review (b) Family information. (1) With the
(a) Initial and annual IFSP meetings.
is to determine— concurrence of the family, the IFSP
(1) Each initial meeting and each annual
(i) The degree to which progress must include a statement of the family’s
meeting to evaluate the IFSP must
toward achieving the outcomes is being resources, priorities, and concerns
include the following participants:
made; and related to enhancing the development of
(i) The parent or parents of the child.
(ii) Whether modification or revision (ii) Other family members, as the child.
of the outcomes or services is necessary. requested by the parent, if feasible to do (2) The statement required in
(3) The review may be carried out in so. paragraph (b)(1) of this section must be
a meeting or by another means that is (iii) An advocate or person outside of based on the family assessment
acceptable to the parents and other the family, if the parent requests that the conducted under § 303.322(d).
participants. person participate. (c) Outcomes. The IFSP must include
(c) Annual meeting to evaluate the (iv) The service coordinator who has a statement of the major outcomes
IFSP. (1) A meeting must be conducted been working with the family since the expected to be achieved for the child
on at least an annual basis to evaluate initial referral of the child for and family (based on the evaluation and
the IFSP for each eligible child and the evaluation, or who has been designated assessments required in § 303.322(c)
child’s family, and, as appropriate, to by the public agency to be responsible and (d)), and the criteria, procedures,
revise its provisions. for implementation of the IFSP. and timelines used to determine—

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(1) The degree to which progress that will be taken to secure those (iv) Other activities that the IFSP team
toward achieving the outcomes is being services through public or private determines are necessary to support the
made; and sources. transition of the child.
(2) Whether modifications or (2) The requirement in paragraph (Authority: 20 U.S.C. 1436(d))
revisions of the outcomes or services are (e)(1) of this section does not apply to
necessary. routine medical services (e.g., Note 1 to § 303.344: With respect to the
(d) Early intervention services. (1) immunizations and ‘‘well-baby’’ and requirements in paragraph (e) of this section,
the appropriate location of services for some
Statement of services. The IFSP must care), unless a child needs those
infants and toddlers might be a hospital
include a statement of the specific early services and the services are not setting—during the period in which they
intervention services necessary to meet otherwise available or being provided. require extensive medical intervention.
the unique needs of the child and the (g) Dates; duration of services. The However, for these and other eligible
family to achieve the outcomes IFSP must include— children, early intervention services must be
identified in paragraph (c) of this (1) The projected dates for initiation provided in natural environments (e.g., the
section. The statement must include the of the services in paragraph (d)(1) of this home, childcare centers, or other community
information required in paragraphs section as soon as possible after the settings) to the maximum extent appropriate
(d)(2) through (d)(4) of this section. IFSP meetings described in § 303.342; to the needs of the child.
(2) Frequency, intensity, and method. and
(i) The IFSP must specify the frequency, (2) The anticipated duration of those Note 2 to § 303.344: Throughout the
intensity, and method of delivering each services. process of developing and implementing
(h) Service coordinator. (1) The IFSP IFSPs for an eligible child and the child’s
early intervention service.
must include the name of the service family, it is important for agencies to
(ii) As used in paragraph (d)(2)(i) of recognize the variety of roles that family
this section— coordinator from the profession most
immediately relevant to the child’s or members play in enhancing the child’s
(A) Frequency and intensity mean the development. It also is important that the
number of days or sessions that a family’s needs (or who is otherwise
degree to which the needs of the family are
service will be provided, the length of qualified to carry out all applicable addressed in the IFSP process is determined
time the service is provided during each responsibilities under this part), who in a collaborative manner with the full
session, and whether the service is will be responsible for the agreement and participation of the parents of
provided on an individual or group implementation of the IFSP and the child. Parents retain the ultimate decision
basis; and coordination with other agencies and in determining whether they, their child, or
(B) Method means how a service is persons. other family members will accept or decline
provided. (2) In meeting the requirements in services under this part.
(3) Natural environments—location of paragraph (h)(1) of this section, the
services. In accordance with § 303.341, public agency may— Note 3 to § 303.344: The early intervention
(i) Assign the same service services in paragraph (d) of this section are
the IFSP must— those services that a State is required to
(i) Specify the natural environments coordinator who was appointed at the
time that the child was initially referred provide to a child in accordance with
(locations or settings) where each early § 303.12. However, the ‘‘other services’’ in
intervention service will be provided; for evaluation to be responsible for
paragraph (e) of this section are services that
and implementing a child’s and family’s
a child or family needs, but that are neither
(ii) Include a justification of the IFSP; or required nor covered under this part. While
extent, if any, to which each service will (ii) Appoint a new service listing the non-required services in the IFSP
not be provided in a natural coordinator. does not mean that those services must be
(3) As used in paragraph (h)(1) of this provided, their identification can be helpful
environment.
section, the term profession includes to both the child’s family and the service
(4) Payment arrangements. The IFSP
‘‘service coordination.’’ coordinator, for the following reasons: First,
must include a statement of the
(i) Transition from Part C services. (1) the IFSP would provide a comprehensive
payment arrangements, if any, for each The IFSP must include the steps to be picture of the child’s total service needs
early intervention service. taken to support the transition of the (including the need for medical and health
(e) Evaluations and assessments. services, as well as early intervention
child, in accordance with § 303.148,
Except as provided in paragraph services). Second, it is appropriate for the
to—
§ 303.345, evaluations and assessments (i) Preschool services under Part B of service coordinator to assist the family in
required under § 303.322 (including the Act, to the extent that those services securing the non-required services (e.g., by
evaluations in each of the determining if there is a public agency that
are appropriate; or could provide financial assistance, if needed,
developmental areas in (ii) Other services that may be
§ 303.322(c)(3)(ii), and those described assisting in the preparation of eligibility
available, if appropriate. claims or insurance claims, if needed, and
under the applicable early intervention (2) The steps required in paragraph assisting the family in seeking out and
services definitions in § 303.12(b)) must (i)(1) of this section include— arranging for the child to receive the needed
be completed prior to, and in (i) Discussions with, and training of, medical-health services).
preparation for, conducting the IFSP parents, as appropriate, regarding future Thus, to the extent appropriate, it is
meeting for an eligible child under this placements and other matters related to important for a State’s procedures under this
part. Therefore, conducting those the child’s transition; part to provide for ensuring that other needs
evaluations and assessments may not be (ii) Procedures to prepare the child for of the child, and of the family related to
listed as an early intervention service in changes in service delivery, including enhancing the development of the child,
the IFSP. steps to help the child adjust to, and such as medical and health needs, are
(f) Other services. (1) To the extent considered and addressed, including
function in, a new setting; determining who will provide each service,
appropriate, the IFSP must include— (iii)(A) The transmission of and when, where, and how it will be
(i) Medical and other services that the information about the child to the LEA provided, and how the service will be paid
child needs, but that are not required or other relevant agency, in accordance for (e.g., through private insurance, an
under this part; and with § 303.148(c); and existing Federal-State funding source, such
(ii) The funding sources to be used in (B) The holding of the conference in as Medicaid or EPSDT, or some other funding
paying for those services or the steps accordance with § 303.148(d); and arrangement).

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Note 4 to § 303.344: Although the IFSP Personnel Training and Standards (1) Appropriate professional
must include information about each of the requirements in the State means entry
items in paragraphs (b) through (h) of this § 303.360 Comprehensive system of
level requirements that—
section, this does not mean that the IFSP personnel development (CSPD).
(i) Are based on the highest
must be a detailed, lengthy document. It (a) General CSPD requirements. Each requirements in the State applicable to
might be a brief outline, with appropriate system must include a comprehensive the profession or discipline in which a
attachments that address each of the points system of personnel development that— person is providing early intervention
in the paragraphs under this section. It is (1) Is consistent with the services; and
important for the IFSP itself to be clear about comprehensive system of personnel (ii) Establish suitable qualifications
what services are to be provided, the actions development required under Part B of for personnel providing early
that are to be taken by the service coordinator the Act and its implementing intervention services under this part to
in initiating those services, and what actions regulations (section 612(a)(14), and 34 eligible children and their families who
will be taken by the parents. CFR 300.380 through 300.382); and are served by State, local, and private
(2) Meets the requirements in agencies.
§ 303.345 Provision of services before paragraphs (b) and (c) of this section. (2) Highest requirements in the State
evaluation and assessment are completed. (b) Scope of training. The applicable to a specific profession or
Early intervention services for an comprehensive system of personnel discipline means the highest entry-level
eligible child and the child’s family may development under this part must— academic degree needed for any State
commence before the completion of the (1) Provide for preservice and approved or recognized certification,
evaluation and assessment in § 303.322, inservice training to be conducted on an licensing, registration, or other
if the following conditions are met: interdisciplinary basis, to the extent comparable requirements that apply to
appropriate; that profession or discipline.
(a) Parental consent is obtained. (2) Provide for the training of a variety (3) Profession or discipline means a
(b) An interim IFSP is developed that of personnel needed to meet the specific occupational category that—
includes— requirements of this part, including (i) Provides early intervention
(1) The name of the service public and private providers, primary services to children eligible under this
coordinator who will be responsible, referral sources, paraprofessionals, and part and their families;
persons who will serve as service (ii) Has been established or designated
consistent with § 303.344 (h), for
coordinators; and by the State; and
implementation of the interim IFSP and
(3) Ensure that the training provided (iii) Has a required scope of
coordination with other agencies and
relates specifically to— responsibility and degree of
persons; and
(i) Understanding the basic supervision.
(2) The early intervention services (4) State approved or recognized
components of early intervention
that have been determined to be needed certification, licensing, registration, or
services available in the State;
immediately by the child and the child’s other comparable requirements means
(ii) Meeting the interrelated social or
family. the requirements that a State legislature
emotional, health, developmental, and
(c) The evaluation and assessment are educational needs of eligible children either has enacted or has authorized a
completed within the time period under this part; and State agency to promulgate through
required in § 303.322(e), except under rules to establish the entry-level
(iii) Assisting families in enhancing
exceptional circumstances as provided standards for employment in a specific
the development of their children, and
in § 303.322(e)(2). profession or discipline in that State.
in participating fully in the
(b) Policies and procedures. (1)(i)
(Authority: 20 U.S.C. 1436(c)) development and implementation of
Each system must have policies and
IFSPs.
Note to § 303.345: This section is intended procedures relating to the establishment
(c) Authorized activities. A personnel
to accomplish two specific purposes: to and maintenance of standards to ensure
development system under this part
facilitate the provision of services in the that personnel necessary to carry out the
may include—
event that a child has obvious immediate purposes of this part are appropriately
needs that are identified, even at the time of
(1) Implementing innovative strategies and adequately prepared and trained.
referral (e.g., a physician recommends that a
and activities for the recruitment and (ii) The policies and procedures
child with cerebral palsy begin receiving retention of early intervention service required in paragraph (b)(1) of this
physical therapy as soon as possible), and to providers; section must provide for the
ensure that the requirements for the timely (2) Promoting the preparation of early establishment and maintenance of
evaluation and assessment are not intervention providers who are fully standards that are consistent with any
circumvented. and appropriately qualified to provide State-approved or State-recognized
early intervention services under this certification, licensing, registration, or
§ 303.346 Responsibility and part; other comparable requirements that
accountability. (3) Training personnel to work in apply to the profession or discipline in
rural and inner-city areas; and which a person is providing early
Each agency or person who has a (4) Training personnel to coordinate
direct role in the provision of early intervention services.
transition services for infants and (2) Each State may—
intervention services is responsible for toddlers with disabilities from an early (i) Determine the specific
making a good faith effort to assist each intervention program under this part to occupational categories required to
eligible child in achieving the outcomes a preschool program under part B of the provide early intervention services
in the child’s IFSP. However, part C of Act, or to other preschool or other within the State; and
the Act does not require that any agency appropriate services. (ii) Revise or expand those categories
or person be held accountable if an as needed.
(Authority: 20 U.S.C. 1435(a)(8))
eligible child does not achieve the (3) Nothing in this part requires a
growth projected in the child’s IFSP. § 303.361 Personnel standards. State to establish a specified training
(Authority: 20 U.S.C. 1436) (a) Definitions. As used in this part— standard (e.g., a masters degree) for

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personnel who provide early provide early intervention services to (3)(i) The parent understands that the
intervention services under Part C of the eligible children, including, in a granting of consent is voluntary on the
Act. geographic area of the State where there part of the parent and may be revoked
(4) A State with only one entry-level is a shortage of personnel that meet at any time.
academic degree for employment of these qualifications, the most qualified (ii) If a parent revokes consent, that
personnel in a specific profession or individuals available who are making revocation is not retroactive (i.e., it does
discipline may modify that standard, as satisfactory progress toward completing not negate an action that has occurred
necessary, to ensure the provision of applicable course work necessary to after the consent was given and before
early intervention services without meet the standards described in the consent was revoked);
violating the requirements of this paragraph (b)(2) of this section, (b) Native language, if used with
section. consistent with State law, within three reference to persons of limited English
(c) Steps for retraining or hiring years. proficiency, means the language or
personnel. To the extent that a State’s (2) If a State has reached its mode of communication normally used
standards for a profession or discipline, established timelines in paragraph (c) of by the parent of a child eligible under
including standards for temporary or this section, the State may still exercise this part; and
emergency certification, are not based the option under paragraph (g)(1) of this (c) Personally identifiable means that
on the highest requirements in the State section for training or hiring all information includes—
applicable to a specific profession or personnel in a specific profession or (1) The name of the child, the child’s
discipline, the State’s application for discipline to meet appropriate parent, or other family member;
assistance under this part must professional requirements in the State. (2) The address of the child;
include— (3)(i) Each State must have a (3) A personal identifier, such as the
(1) The steps the State is taking; mechanism for serving eligible children child’s or parent’s social security
(2) The procedures for notifying under this part if the need for early number; or
public agencies and personnel of those intervention services exceeds (4) A list of personal characteristics or
steps; and appropriate professional requirements other information that would make it
(3) The timelines it has established for in the State for a specific profession or possible to identify the child with
the retraining or hiring of personnel that discipline. reasonable certainty.
meet appropriate professional (ii) A State that continues to
requirements in the State. (Authority: 20 U.S.C. 1439)
experience shortages of qualified
(d) Status of personnel standards in personnel must address those shortages § 303.402 Opportunity to examine records.
the State. (1) In meeting the in its comprehensive system of
requirements in paragraphs (b) and (c) In accordance with the confidentiality
personnel development under procedures in the regulations under part
of this section, a determination must be § 303.361.
made about the status of personnel B of the Act (34 CFR 300.560 through
standards in the State. That (Authority: 20 U.S.C. 1435(a)(9)) 300.576), the parents of a child eligible
determination must be based on current under this part must be afforded the
information that accurately describes, Subpart E—Procedural Safeguards opportunity to inspect and review
for each profession or discipline in records relating to evaluations and
General assessments, eligibility determinations,
which personnel are providing early
intervention services, whether the § 303.400 General responsibility of lead development and implementation of
applicable standards are consistent with agency for procedural safeguards. IFSPs, due process hearings, and any
the highest requirements in the State for Each lead agency must be responsible other area under this part involving
that profession or discipline. for— records about the child and the child’s
(2) The information required in (a) Establishing or adopting family.
paragraph (d)(1) of this section must be procedural safeguards that meet the (Authority: 20 U.S.C. 1439(a)(4))
on file in the lead agency, and available requirements of this subpart; and
(b) Ensuring effective implementation § 303.403 Prior notice; native language.
to the public.
(e) Applicability of State statutes and of the safeguards by each public agency (a) General. Written prior notice must
agency rules. In identifying the ‘‘highest in the State that is involved in the be given to the parents of a child eligible
requirements in the State’’ for purposes provision of early intervention services under this part a reasonable time before
of this section, the requirements of all under this part. a public agency or service provider
State statutes and the rules of all State (Authority: 20 U.S.C. 1439)
proposes, or refuses, to initiate or
agencies applicable to serving children change the identification, evaluation, or
eligible under this part and their § 303.401 Definitions of consent, native placement of the child, or the provision
families must be considered. language, and personally identifiable of appropriate early intervention
(f) Use of paraprofessionals and information. services to the child and the child’s
assistants. A State may allow As used in this subpart— family.
paraprofessionals and assistants who are (a) Consent means that— (b) Content of notice. The notice must
appropriately trained and supervised, in (1) The parent has been fully be in sufficient detail to inform the
accordance with State law, regulations, informed of all information relevant to parents about—
or written policy, to assist in the the activity for which consent is sought, (1) The action that is being proposed
provision of early intervention services in the parent’s native language or other or refused;
to eligible children under this part. mode of communication; (2) The reasons for taking the action;
(g) Policy to address shortage of (2) The parent understands and agrees (3) All procedural safeguards that are
personnel. (1) In implementing this in writing to the carrying out of the available under §§ 303.401 through
section, a State may adopt a policy that activity for which consent is sought, and 303.460 of this part; and
includes making ongoing good-faith the consent describes that activity and (4) The State complaint procedures
efforts to recruit and hire appropriately lists the records (if any) that will be under §§ 303.510–303.512, including a
and adequately trained personnel to released and to whom; and description of how to file a complaint

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and the timelines under those children with disabilities in a State, (1) The evaluation and assessment of
procedures. including infants and toddlers. the child;
(c) Native language. (1) The notice (2) Development and implementation
must be— § 303.405 Parent right to decline service. of the child’s IFSPs, including annual
(i) Written in language The parents of a child eligible under evaluations and periodic reviews;
understandable to the general public; this part— (3) The ongoing provision of early
and (a) May determine whether they, their intervention services to the child; and
(ii) Provided in the native language of child, or other family members will (4) Any other rights established under
the parents, unless it is clearly not accept or decline any early intervention this part.
feasible to do so. service under this part in accordance
(Authority: 20 U.S.C. 1439(a)(5))
(2) If the native language or other with State law; and
mode of communication of the parent is (b) May decline such a service after Mediation and Due Process Procedures
not a written language, the public first accepting it, without jeopardizing for Parents and Children
agency, or designated service provider, other early intervention services under
this part. § 303.419 Mediation.
must take steps to ensure that—
(i) The notice is translated orally or by (Authority: 20 U.S.C. 1439(a)(3))
(a) General. (1) Each State must
other means to the parent in the parent’s ensure that procedures are established
native language or other mode of § 303.406 Surrogate parents. and implemented to allow parties to
communication; (a) General. Each lead agency must disputes involving any matter described
(ii) The parent understands the notice; ensure that the rights of children in § 303.403(a) to resolve the disputes
and eligible under this part are protected through a mediation process that, at a
(iii) There is written evidence that the if— minimum, must be available whenever
requirements of this paragraph have (1) No parent (as defined in § 303.19) a hearing is requested under § 303.420.
been met. can be identified; (2) The lead agency may either use the
(3) If a parent is deaf or blind, or has (2) The public agency, after mediation system established under Part
no written language, the mode of reasonable efforts, cannot discover the B of the Act or establish its own system.
communication must be that normally whereabouts of a parent; or (b) Requirements. The procedures
used by the parent (such as sign (3) The child is a ward of the State must meet the following requirements:
language, braille, or oral under the laws of that State. (1) The procedures must ensure that
communication). (b) Duty of lead agency and other the mediation process—
public agencies. The duty of the lead (i) Is voluntary on the part of the
(Authority: 20 U.S.C. 1439(a)(6) and (7)) agency, or other public agency under parties;
§ 303.404 Parent consent. paragraph (a) of this section, includes (ii) Is not used to deny or delay a
(a) Written parental consent must be the assignment of an individual to act as parent’s right to a due process hearing
obtained before— a surrogate for the parent. This must under § 303.420, or to deny any other
(1) Conducting the initial evaluation include a method for— rights afforded under Part C of the Act;
and assessment of a child under (1) Determining whether a child needs and
§ 303.322; and a surrogate parent; and (iii) Is conducted by a qualified and
(2) Assigning a surrogate parent to the impartial mediator who is trained in
(2) Initiating the provision of early
child. effective mediation techniques.
intervention services (see § 303.342(e)).
(c) Criteria for selecting surrogates. (1) (2) The State must maintain a list of
(b) If consent is not given, the public
The lead agency or other public agency individuals who are qualified mediators
agency must make reasonable efforts to
may select a surrogate parent in any way and knowledgeable in laws and
ensure that the parent—
permitted under State law. regulations relating to the provision of
(1) Is fully aware of the nature of the (2) Public agencies must ensure that a
evaluation and assessment or the special education and related services.
person selected as a surrogate parent—
services that would be available; and (i) Has no interest that conflicts with (3) The State must bear the cost of the
(2) Understands that the child will not the interests of the child he or she mediation process, including the costs
be able to receive the evaluation and represents; and of meetings described in paragraph (c)
assessment or services unless consent is (ii) Has knowledge and skills that of this section.
given. ensure adequate representation of the (4) Each session in the mediation
(Authority: 20 U.S.C. 1439) child. process must be scheduled in a timely
(d) Non-employee requirement; manner and must be held in a location
Note 1 to § 303.404: In addition to the that is convenient to the parties to the
consent requirements in this section, other compensation. (1) A person assigned as
consent requirements are included in a surrogate parent may not be— dispute.
§ 303.460(a), regarding the exchange of (i) An employee of any State agency; (5) An agreement reached by the
personally identifiable information among or parties to the dispute in the mediation
agencies, and the confidentiality provisions (ii) A person or an employee of a process must be set forth in a written
in the regulations under part B of the Act (34 person providing early intervention mediation agreement.
CFR 300.571) and 34 CFR part 99 (Family services to the child or to any family (6) Discussions that occur during the
Educational Rights and Privacy), both of member of the child. mediation process must be confidential
which apply to this part. (2) A person who otherwise qualifies and may not be used as evidence in any
to be a surrogate parent under paragraph subsequent due process hearings or civil
Note 2 to § 303.404: Under § 300.505(b) of (d)(1) of this section is not an employee proceedings, and the parties to the
the Part B regulations, a public agency may
solely because he or she is paid by a mediation process may be required to
initiate procedures to challenge a parent’s
refusal to consent to the initial evaluation of public agency to serve as a surrogate sign a confidentiality pledge prior to the
the parent’s child and, if successful, obtain parent. commencement of the process.
the evaluation. This provision applies to (e) Responsibilities. A surrogate (c) Meeting to encourage mediation. A
eligible children under this part, since the parent may represent a child in all State may establish procedures to
part B evaluation requirement applies to all matters related to— require parents who elect not to use the

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mediation process to meet, at a time and (iv) Provides a record of the receipt of a request for a hearing, a decision
location convenient to the parents, with proceedings, including a written is reached and a copy of the decision is
a disinterested party— decision. mailed to each of the parties). (See 34 CFR
(b) Definition of impartial. (1) As used 300.512.) Thus, if a State, in meeting the
(1) Who is under contract with a requirements of § 303.420, elects to adopt the
parent training and information center in this section, impartial means that a due process procedures under part B, that
or community parent resource center in person who serves as a hearing officer State would also have 45 days for hearings.
the State established under sections 682 in accordance with this section— However, any State in that situation is
or 683 of the Act, or an appropriate (i) Is not an employee of any agency encouraged (but not required) to accelerate
alternative dispute resolution entity; or other entity involved in the provision the timeline for the due process hearing for
and of early intervention services or care of children who are eligible under this part—
(2) Who would explain the benefits of the child; and from 45 days to the 30-day timeline in this
(ii) Does not have a personal or section. Because the needs of children in the
the mediation process and encourage
professional interest that would conflict birth-through-two-age range change so
the parents to use the process. rapidly, quick resolution of complaints is
with his or her objectivity in important.
(Authority: 20 U.S.C. 1415(e) and 1439(a)(8))
implementing the process.
§ 303.420 Due process procedures. (2) A person who otherwise qualifies § 303.424 Civil action.
(a) Each system must include written under paragraph (b)(1) of this section is
not an employee of an agency solely Any party aggrieved by the findings
procedures for the timely administrative and decision made under § 303.420 has
resolution of requests for due process because the person is paid by the agency
to implement the complaint resolution the right to bring a civil action in State
hearings filed by the parents of eligible or Federal court under section 639(a)(1)
children under this part concerning any process.
of the Act.
of the matters described in § 303.403(a). (Authority: 20 U.S.C. 1439(a)(1))
(Authority: 20 U.S.C. 1439(a)(1))
A State may meet this requirement by—
§ 303.422 Parent rights in due process
(1)(i) Adopting the mediation and due hearings. § 303.425 Status of a child during
process procedures in 34 CFR 300.506– proceedings.
300.512; and (a) General. Each lead agency must
ensure that the parents of children (a) During the pendency of any
(ii) Developing procedures that meet administrative or judicial proceeding
the requirements of § 303.425; or eligible under this part are afforded the
rights in paragraph (b) of this section in involving a request for a due process
(2) Developing procedures that— hearing under § 303.420, unless the
any due process hearing carried out
(i) Meet the mediation and due under § 303.420. public agency and parents of a child
process requirements in § 303.419 and (b) Rights. Any parent involved in a otherwise agree, the child must
§§ 303.421–303.425; and due process hearing has the right to— continue to receive the appropriate early
(ii) Provide parents an appropriate (1) Be accompanied and advised by intervention services currently being
means of filing a request for a due counsel and by individuals with special provided.
process hearing. knowledge or training with respect to (b) If the proceeding involves an
(b) If a parent initiates a hearing under early intervention services for children application for initial services under
paragraph (a)(1) or (a)(2) of this section, eligible under this part; this part, the child must receive those
the lead agency must inform the parent (2) Present evidence and confront, services that are not in dispute.
of the availability of mediation (c) This section does not apply if a
cross-examine, and compel the
described in § 303.419. child is transitioning from early
attendance of witnesses;
(Authority: 20 U.S.C. 1439(a)(1), (8)) (3) Prohibit the introduction of any intervention services under this part to
evidence at the proceeding that has not preschool services under Part B of the
Note to § 303.420: It is important that the Act.
administrative procedures developed by a been disclosed to the parent at least five
State be designed to result in speedy days before the proceeding; (Authority: 20 U.S.C. 1439(a)(7))
resolution of complaints. An infant’s or (4) Obtain a written or electronic Confidentiality
toddler’s development is so rapid that undue verbatim transcription of the
delay could be potentially harmful. proceeding; and § 303.460 Confidentiality of information.
(5) Obtain written findings of fact and (a) Each State must adopt or develop
§ 303.421 Impartial hearing officer. decisions. policies and procedures that the State
(a) Qualifications and duties. Each (Authority: 20 U.S.C. 1439) will follow in order to ensure the
lead agency must ensure that any due protection of any personally identifiable
process hearings carried out under § 303.423 Convenience of hearings; information collected, used, or
section 639 of the Act and subpart E of timelines. Each lead agency must ensure maintained under this part, including
this part are conducted by an impartial that—
the right of parents to written notice of
hearing officer who— (a) Any due process hearing and written consent to the exchange of
(1) Has knowledge about the conducted under this part is carried out this information among agencies
provisions of this part and the needs of, at a time and place that is reasonably consistent with Federal and State law.
and services available for, eligible convenient to the parents; and (b) These policies and procedures
children and their families; and (b) Not later than 30 days after the must meet the requirements in 34 CFR
(2) Performs the following duties: receipt of a parent’s request for a due 300.560–300.576, with the
(i) Listens to the presentation of process hearing, the hearing is modifications specified in § 303.5(b).
relevant viewpoints about the dispute conducted and a written decision is
(Authority: 20 U.S.C. 1439(a)(2), 1442)
that is the subject of the hearing. mailed to each of the parties.
Note to § 303.460: With the modifications
(ii) Examines all information relevant (Authority: 20 U.S.C. 1439(a)(1)) referred to in paragraph (b) of this section,
to the issues. Note: Under part B of the Act, States are the confidentiality requirements in the
(iii) Seeks to reach a timely resolution allowed 45 days to conduct an impartial due regulations implementing part B of the Act
of the dispute. process hearing (i.e., within 45 days after the (34 CFR 300.560 through 300.576) are to be

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used by public agencies to meet the (i) Providing for the filing of a determines that such an investigation is
confidentiality requirements under part C of complaint with the lead agency; and necessary;
the Act and this section (§ 303.460). (ii) At the lead agency’s discretion, (2) Give the complainant the
The part B provisions incorporate by
providing for the filing of a complaint opportunity to submit additional
reference the regulations in 34 CFR part 99
(Family Educational Rights and Privacy); with a public agency and the right to information, either orally or in writing,
therefore, those regulations also apply to this have the lead agency review the public about the allegations in the complaint;
part. agency’s decision on the complaint; and (3) Review all relevant information
(2) Widely disseminating to parents and make an independent
Subpart F—State Administration and other interested individuals, determination as to whether the public
including parent training centers, agency is violating a requirement of Part
General protection and advocacy agencies, C of the Act or of this Part; and
independent living centers, and other (4) Issue a written decision to the
§ 303.500 Lead agency establishment or
appropriate entities, the State’s complainant that addresses each
designation.
procedures under §§ 303.510 through allegation in the complaint and
Each system must include a single 303.512. contains—
line of responsibility in a lead agency (b) Remedies for denial of appropriate (i) Findings of fact and conclusions;
that— services. In resolving a complaint in
(a) Is established or designated by the and
which it finds a failure to provide (ii) The reasons for the lead agency’s
Governor; and appropriate services, a lead agency,
(b) Is responsible for the final decision.
pursuant to its general supervisory (b) Time extension; final decisions;
administration of the system, in authority under Part C of the Act, must
accordance with the requirements of implementation. The lead agency’s
address: procedures described in paragraph (a) of
this part. (1) How to remediate the denial of this section also must—
(Authority: 20 U.S.C. 1435(a)(10)) those services, including, as (1) Permit an extension of the time
appropriate, the awarding of monetary limit under paragraph (a) of this section
§ 303.501 Supervision and monitoring of
programs. reimbursement or other corrective only if exceptional circumstances exist
action appropriate to the needs of the with respect to a particular complaint;
(a) General. Each lead agency is child and the child’s family; and
responsible for— and
(2) Appropriate future provision of (2) Include procedures for effective
(1) The general administration and services for all infants and toddlers with
supervision of programs and activities implementation of the lead agency’s
disabilities and their families. final decision, if needed, including—
receiving assistance under this part; and
(2) The monitoring of programs and (Authority: 20 U.S.C. 1435(a)(10)) (i) Technical assistance activities;
activities used by the State to carry out § 303.511 An organization or individual
(ii) Negotiations; and
this part, whether or not these programs may file a complaint. (iii) Corrective actions to achieve
or activities are receiving assistance compliance.
(a) General. An individual or
under this part, to ensure that the State (c) Complaints filed under this
organization may file a written signed
complies with this part. section, and due process hearings under
complaint under § 303.510. The
(b) Methods of ensuring compliance. § 303.420. (1) If a written complaint is
complaint must include—
In meeting the requirement in paragraph received that is also the subject of a due
(1) A statement that the State has
(a) of this section, the lead agency must process hearing under § 303.420, or
violated a requirement of Part C of the
adopt and use proper methods of contains multiple issues, of which one
Act or the regulations in this part; and
ensuring compliance, including— or more are part of that hearing, the
(2) The facts on which the complaint
(1) Monitoring agencies, institutions, State must set aside any part of the
is based.
and organizations used by the State to complaint that is being addressed in the
(b) Limitations. The alleged violation
carry out this part; due process hearing until the
must have occurred not more than one
(2) Enforcing any obligations imposed conclusion of the hearing. However, any
year before the date that the complaint
on those agencies under part C of the issue in the complaint that is not a part
is received by the public agency, unless
Act and these regulations; of the due process action must be
(3) Providing technical assistance, if a longer period is reasonable because—
resolved within the 60-calendar-day
necessary, to those agencies, (1) The alleged violation continues for
timeline using the complaint procedures
institutions, and organizations; and that child or other children; or
described in paragraphs (a) and (b) of
(4) Correcting deficiencies that are (2) The complainant is requesting
this section.
identified through monitoring. reimbursement or corrective action for a
violation that occurred not more than (2) If an issue is raised in a complaint
(Authority: 20 U.S.C. 1435(a)(10)(A)) three years before the date on which the filed under this section that has
complaint is received by the public previously been decided in a due
Lead Agency Procedures for Resolving process hearing involving the same
Complaints agency.
parties—
(Authority: 20 U.S.C. 1435(a)(10)) (i) The hearing decision is binding;
§ 303.510 Adopting complaint procedures.
(a) General. Each lead agency must § 303.512 Minimum State complaint and
adopt written procedures for— procedures. (ii) The lead agency must inform the
(1) Resolving any complaint, (a) Time limit—minimum procedures. complainant to that effect.
including a complaint filed by an Each lead agency must include in its (3) A complaint alleging a public
organization or individual from another complaint procedures a time limit of 60 agency’s or private service provider’s
State, that any public agency or private calendar days after a complaint is filed failure to implement a due process
service provider is violating a under § 303.510(a) to— decision must be resolved by the lead
requirement of Part C of the Act or this (1) Carry out an independent on-site agency.
part by— investigation, if the lead agency (Authority: 20 U.S.C. 1435(a)(10))

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Policies and Procedures Related to (ii) If the State uses funds received functions related to evaluation and
Financial Matters under section 611 of IDEA to provide assessment in § 303.12.
services to eligible infants and toddlers, (iii) Service coordination, as included
§ 303.519 Policies related to payment for the State will meet the requirements of in §§ 303.302 and 303.344(h).
services. (iv) Administrative and coordinative
both Parts B and C of the Act and their
(a) General. (1) Each lead agency is implementing regulations for those activities related to—
responsible for establishing State children; and (A) The development, review, and
policies related to how services to (iii) If the State uses funds received evaluation of IFSPs in §§ 303.340
children eligible under this part and under section 619 of IDEA to provide through 303.346;
their families will be paid for under the services to two-year-olds who will turn (B) Implementation of the procedural
State’s early intervention program. three during the school year, the State safeguards in subpart E of this part; and
(i) For a State that has adopted a will meet the requirements of Part B for (C) The other components of the
system of payments, the policies must those children, and is not required to statewide system of early intervention
meet the requirements in §§ 303.519 comply with Part C. services in subparts D and F of this part.
through 303.522. (2) Specifies what category, age group, (2) Inability to pay. The inability of
(ii) For a State that has not adopted a the parents of an eligible child to pay for
or other segment of the eligible infant
system of payments, the policies must— services will not result in the denial of
and toddler population will receive
(A) Include a statement that all early services to the child or the child’s
services with funds under Part B of the
intervention services will be at no cost family.
Act, and, therefore, are entitled to a free (3) Free appropriate public education
to parents; and appropriate public education.
(B) Meet the requirements of this and the use of Part B funds. If a State
(e) Construction. Nothing in this part
section and § 303.522. has in effect a State policy that requires
should be construed to alter the
(2) The policies required in paragraph the provision of a free appropriate
requirements imposed on a State
(a)(1) of this section must be reflected in public education to children below age
Medicaid agency, or any other agency
the appropriate interagency agreements three, or uses Part B section 611 funds
administering a public insurance to provide early intervention services to
required in § 303.523. program by Federal statute, regulations,
(b) Procedures to ensure the timely eligible children below age three in
or policy under title XIX, or title XXI of accordance with § 303.519(d), the
provision of services. The State must the Social Security Act, or any other
implement a mechanism to ensure that State—
Federal insurance program. (i) May not charge parents for any
no services that a child is entitled to
receive are delayed or denied because of (Authority: 20 U.S.C. 1411, 1419(a), (h), services that are part of free appropriate
disputes between agencies regarding 1432(4)(B), 1435(a)(10)) public education, as defined in 34 CFR
financial or other responsibilities. 300.13, for the child; and
§ 303.520 System of payments.
(c) Proceeds from public or private (ii) May, under a system of payments,
(a) General. (1) A system of payments charge parents for other services that are
insurance. (1) Proceeds from public or is a written State policy that—
private insurance are not treated as not covered under paragraph (c)(3)(i) of
(i) Meets the requirements of this this section.
program income for purposes of 34 CFR section; and (d) System of payments: State
80.25. (ii) Describes the fees or costs that
(2) A State may add fees collected policies. The policies of a State with a
will be borne by families who receive system of payments must—
under a system of payments, which are services under the early intervention (1) Include the assurance described in
program income under 34 CFR 80.25, to system. paragraph (c) of this section regarding
its Part C grant funds. The fee income (2) The lead agency is responsible for the circumstances under which no fees
must be used for the purposes and ensuring compliance with the system of may be charged;
under the conditions of the grant payments. (2) Specify which early intervention
agreement. (b) Types of fees. A system of services are subject to the system of
(3) If a public agency spends payments may include either or both of payments;
reimbursements from Federal funds the following: (3) Specify which types of fees or
(e.g., Medicaid), or uses private (1) A fee system of payments by payments described in paragraph (b) of
insurance payments for services under families established under State law this section are included;
this part, those funds are not considered specifically for early intervention (4) Include the State’s criteria for
State or local funds for purposes of the services, such as a schedule of sliding judging inability to pay, provided that,
provisions contained in § 303.124 fees based on family income. in considering a family’s ability to pay,
(Prohibition against supplanting). (2) Cost participation fees (e.g., co-pay the State uses criteria that take into
(d) State policy relating to the use of or deductible amounts) required under consideration applicable family
Part B funds. A State lead agency that existing State or Federal law to access expenses, using the best available data;
proposes to use funds under Part B of State or Federal insurance programs in and
the Act to provide services to any which the child or family is enrolled. (5) For States whose system includes
children eligible under this part must do (c) System of payments—assurance. A fees for early intervention services as
so in accordance with a State policy that State with a system of payments must described in paragraph (b)(1) of this
is in effect and meets the following assure that no fees will be charged to section, include—
requirements: parents in the following circumstances: (i) The schedule of fees that will be
(1) Assures that— (1) Functions and services at no cost. used, including the basis for and
(i) Any eligible child under this part The State must carry out the following amount of fees; and
who receives services using Part B funds functions and services at public (ii) The basis for determining a
will be provided a free appropriate expense: family’s position on the fee scale, if
public education in accordance with the (i) Implementing the child find applicable, provided that the State—
requirements of Part B of the Act and its requirements in § 303.321. (A) Does not take into account the
implementing regulations (34 CFR Part (ii) Evaluation and assessment, as existence of a family’s public or private
300); required in § 303.322, and including the insurance; and

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(B) Uses criteria that take into (iii) The State may not use a child’s (2) The State may access a parent’s
consideration applicable family benefits under a public insurance private insurance only if the parent
expenses, using the best available data. program without obtaining parental provides informed consent in
(e) Procedural safeguards—(1) Notice. consent, if that use would— accordance with § 303.401(a), following
In States with a system of payments, the (A) Decrease available lifetime the procedures in paragraph (d)(3) of
State must give written notice to parents coverage or any other insured benefit; this section.
of the information required in this (B) Result in the family paying for (3) For each service in the initial IFSP
section. services that would otherwise be and each subsequent change to a service
(2) How to give notice. In order to give covered by the public insurance (including a change in the frequency
the notice required in paragraph (e)(1) of program if not for the provision of and intensity of delivering the service),
this section, a State may— services under this part; in order to access a family’s private
(i) Include the information in the (C) Increase premiums or lead to the insurance to fund that service, the State
notice the State gives the family under discontinuation of insurance; or must—
§ 303.403; or (D) Risk loss of eligibility for, or (i) Obtain parental consent, in
(ii) Create a separate notice for this decrease in benefits under, home and accordance with § 303.401(a); and
information, and provide the notice to community-based waivers, based on
families prior to commencement of early (ii) Inform the parents that their
aggregate health-related expenditures. refusal to permit the State to access their
intervention services for their child. (2) If any of the circumstances listed
(3) Redress by parents. If a parent private insurance does not relieve the
in paragraph (b)(1)(iii) of this section State of its responsibility to ensure that
wishes to contest the imposition of a apply, the State may use the child’s
fee, or the State’s determination of the all required services are provided at no
benefits, if it obtains the parent’s written cost to the parents.
family’s ability to pay, the parent may consent in accordance with § 303.401(a).
do the following: (e) Use of Part C funds. (1) If a State
(3) If a family’s public insurance is unable to obtain parental consent to
(i) Participate in mediation in
program requires access to the family’s use the parent’s private insurance to pay
accordance with § 303.419.
(ii) Request a due process hearing private insurance as a precondition— for a service under this part, or public
under § 303.420. (i) The State may not require families insurance if the parent would incur a
(iii) File a State complaint under to access their private insurance; and cost for the service under paragraph
§ 303.510. (ii) The State may access the private (c)(4) of this section, the State may use
(iv) Use any other procedure insurance if parents give consent in its Part C funds to pay for the service.
established by the State for speedy accordance with paragraph (d) of this
(2) To avoid financial cost to parents,
resolution of financial claims, provided section, or choose to use private
a State may use its Part C funds to pay
that such use does not delay or deny the insurance under the provisions of
the cost the parents otherwise would
parent’s procedural rights under this paragraph (c) of this section.
have to pay to use their public or private
part, including the right to pursue, in a (4) In a State with a system of
insurance (e.g., the deductible or co-pay
timely manner, the redress options payments that includes fees as
amounts).
described in paragraphs (e)(3)(i) through described in § 303.520(b)(1), the State
may not bill the family’s public (Authority: 20 U.S.C. 1432(4)(B), 1440)
(iii) of this section.
insurance for an amount greater than the § 303.522 Identification and coordination
(Authority: 20 U.S.C. 1432(4)(B), 1439((a)(1),
(a)(8))
cost of the service, after subtracting any of resources.
applicable fee amount owed or paid by
§ 303.521 Use of insurance. the family. (a) Each lead agency is responsible
(c) Use of private insurance—States for—
(a) Public insurance—No mandatory
enrollment. A State may not require with a fee scale for early intervention (1) The identification and
parents to sign up for or enroll in a services. In a State with a system of coordination of all available resources
public insurance program in order for payments, if the system of payments for early intervention services within
their child to receive early intervention includes fees as described in the State, including those from Federal,
services. § 303.520(b)(1), the State must— State, local, and private sources; and
(b) Use of public insurance. (1)(i) A (1) First determine the applicable (2) Updating the information on the
State may use the Medicaid or other family fee for each service, in funding sources in paragraph (a)(1) of
public insurance benefits in which a accordance with § 303.520(d)(5)(ii); and this section, if a legislative or policy
child participates to provide or pay for (2) Give parents the option of using change is made under any of those
services required under this part, as their private insurance, if any, or paying sources.
permitted under the public insurance the applicable fee, for each service. (b) The Federal funding sources in
program, except as provided in (d) Use of private insurance—States paragraph (a)(1) of this section
paragraphs (b)(1)(ii) and (b)(1)(iii) of this with no system of payments. (1)(i) include—
section. Subject to paragraph (d)(1)(ii) of this (1) Title V of the Social Security Act
(ii) The State may not require parents section, the provisions in this paragraph (relating to Maternal and Child Health);
to incur an out-of-pocket expense such apply in all States except a State with (2) Title XIX of the Social Security
as the payment of a deductible or co-pay a system of payments that includes fees Act (relating to the general Medicaid
amount incurred in filing a public as described in § 303.520(b)(1), such as Program, and EPSDT);
insurance claim for services provided a sliding fee scale. (3) The Head Start Act;
pursuant to this part, unless those (ii) The provisions of this paragraph
(4) Parts B and C of the Act;
expenses are included in a system of also apply to a State with a system of
payments as described in payments that includes fees as (5) The Developmental Disabilities
§ 303.520(b)(2); but pursuant to described in § 303.520(b)(1), such as a Assistance and Bill of Rights Act (Pub.
paragraph (e) of this section, the State sliding fee scale, if any of the L. 94–103); and
may pay the cost that the parent circumstances in § 303.520(c) are (6) Other Federal programs.
otherwise would be required to pay. present (when no fees can be charged). (Authority: 20 U.S.C. 1435(a)(10)(B))

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§ 303.523 Interagency agreements. (3) At the State’s discretion, child standards and be consistent with the
(a) General. Each lead agency is find, consistent with § 303.321(c). provisions of this part;
responsible for entering into formal (Authority: 20 U.S.C. 1435(a)(10)(C) and (b) The mechanisms that the lead
interagency agreements with other (a)(10)(F)) agency will use in arranging for these
State-level agencies involved, whether services, including the process by which
by providing services or funding, in the § 303.524 Resolution of disputes. awards or other arrangements are made;
State’s early intervention program. Each (a) Each lead agency is responsible for and
agreement must meet the requirements resolving individual disputes, in (c) The basic requirements that must
in paragraphs (b) through (d) of this accordance with the procedures in be met by any individual or
section. § 303.523(c)(2)(ii). organization seeking to provide these
(b) Financial responsibility. Each (b)(1) During a dispute, the individual services for the lead agency.
agreement must define the financial or entity responsible for assigning (Authority: 20 U.S.C. 1435(a)(11))
responsibility, in accordance with financial responsibility among
appropriate agencies under § 303.143 Note to § 303.526: In implementing the
§§ 303.143 and 303.173, of the agency statewide system, States may elect to
for paying for or providing early (i.e., the financial designee) must assign
continue using agencies and individuals in
intervention services (in accordance financial responsibility to— both the public and private sectors that have
with State law and the requirements of (i) An agency, subject to the previously been involved in providing early
this part). provisions in paragraph (b)(2) of this intervention services, so long as those
(c) Procedures for resolving disputes. section; or agencies and individuals meet the
(1) Each agreement must include (ii) The lead agency, in accordance requirements of this part.
procedures for achieving a timely with the payor of last resort provisions
resolution of intra-agency and in § 303.527. § 303.527 Payor of last resort.
interagency disputes about payments for (2) If, during the lead agency’s (a) Nonsubstitution of funds. Except
a given service, or disputes about other resolution of the dispute, the financial as provided in paragraph (b)(1) of this
matters related to the State’s early designee determines that the assignment section, funds under this part may not
intervention program. Those procedures of financial responsibility under be used to satisfy a financial
must include a mechanism for making paragraph (b)(1)(i) of this section was commitment for services that would
a final determination that is binding inappropriately made— otherwise have been paid for from
(i) The financial designee must
upon the agencies involved. another public or private source,
reassign the responsibility to the
(2) A State may meet the requirement including any medical program
appropriate agency; and
in paragraph (c)(1) of this section in any administered by the Secretary of
(ii) The lead agency must make
way permitted under State law, Defense, but for the enactment of part C
arrangements for reimbursement of any
including— of the Act. Therefore, funds under this
expenditures incurred by the agency
(i) Providing for a third party (e.g.,) an part may be used only for early
originally assigned responsibility.
administrative law judge) to review a (c) To the extent necessary to ensure intervention services that an eligible
dispute and render a decision; compliance with its action in paragraph child needs but is not currently entitled
(ii) Assignment of the responsibility (b)(2) of this section, the lead agency to under any other Federal, State, local,
by the Governor to the lead agency or must— or private source.
Council; or (1) Refer the dispute to the Council or (b) Interim payments—
(iii) Having the final decision made the Governor; and reimbursement. (1) If necessary to
directly by the Governor. (2) Implement the procedures to prevent a delay in the timely provision
(3) The agreement with each agency ensure the delivery of services in a of services to an eligible child or the
must— timely manner in accordance with child’s family, funds under this part
(i) Permit the agency to resolve its § 303.525. may be used to pay the provider of
own internal disputes (based on the services, pending reimbursement from
(Authority: 20 U.S.C. 1435(a)(10)(C) and the agency or entity that has ultimate
agency’s procedures that are included in
(a)(10)(E))
the agreement), so long as the agency responsibility for the payment.
acts in a timely manner; and § 303.525 Delivery of services in a timely (2) Payments under paragraph (b)(1)
(ii) Include the process that the lead manner. of this section may be made for—
agency will follow in achieving Each lead agency is responsible for (i) Early intervention services, as
resolution of intra-agency disputes, if a the development of procedures to described in § 303.12;
given agency is unable to resolve its ensure that services are provided to (ii) Eligible health services (see
own internal disputes in a timely eligible children and their families in a § 303.13); and
manner. timely manner, pending the resolution (iii) Other functions and services
(d) Additional components. Each of disputes among public agencies or authorized under this part, including
agreement must include any additional service providers. child find and evaluation and
components necessary to ensure (Authority: 20 U.S.C. 1435(a)(10)(D))
assessment.
effective cooperation and coordination (3) The provisions of paragraph (b)(1)
among all agencies involved in the § 303.526 Policy for contracting or of this section do not apply to medical
State’s early intervention program, otherwise arranging for services. services or ‘‘well-baby’’ health care (see
including provisions on— Each system must include a policy § 303.13(c)(1)).
(1) Transition from Part C services, in pertaining to contracting or making (c) Non-reduction of benefits. Nothing
accordance with § 303.148(c); other arrangements with public or in this part may be construed to permit
(2) Applicable policies regarding private service providers to provide a State to reduce medical or other
payments by families, and the use of early intervention services. The policy assistance available or to alter eligibility
funds from other State agencies, in must include— under title V of the Social Security Act
accordance with §§ 303.173, 303.519(a), (a) A requirement that all early (SSA) (relating to maternal and child
and 303.522; and intervention services must meet State health) or title XIX of the SSA (relating

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to Medicaid for children eligible under (Authority: 20 U.S.C. 1433, 1435(a)(10)) (i) Be from the State educational
this part) within the State. agency responsible for preschool
Subpart G—State Interagency services to children with disabilities;
(Authority: 20 U.S.C. 1440)
Coordinating Council and
Note to § 303.527: The Congress intended
General (ii) Have sufficient authority to engage
that the enactment of part C not be construed
as a license to any agency (including the lead in policy planning and implementation
agency and other agencies in the State) to § 303.600 Establishment of Council. on behalf of that agency.
withdraw funding for services that currently (a) A State that desires to receive (7) At least one member must be from
are or would be made available to eligible financial assistance under this part must the agency responsible for the State
children but for the existence of the program establish a State Interagency governance of health insurance.
under this part. Thus, the Congress intended Coordinating Council. (8) At least one member must be from
that other funding sources would continue, (b) The Council must be appointed by a Head Start agency or program in the
and that there would be greater coordination
the Governor. The Governor must State.
among agencies regarding the payment of
costs. ensure that the membership of the (9) At least one member must be from
The Congress further clarified its intent Council reasonably represents the a State agency responsible for child
concerning payments under Medicaid by population of the State. care.
including in section 411(k)(13) of the (c)(1) Subject to paragraph (c)(2) of (b) The Council may include other
Medicare Catastrophic Coverage Act of 1988 this section, the Governor must members selected by the Governor,
(Pub. L. 100–360) an amendment to title XIX designate a member of the Council to including a representative from the BIA
of the Social Security Act. That amendment serve as the chairperson of the Council or, if there is no school operated or
states, in effect, that nothing in this title must or require the Council to do so. funded by the BIA, from the Indian
be construed as prohibiting or restricting, or (2) Any member of the Council who
authorizing the Secretary of Health and Health Service or the tribe or tribal
Human Services to prohibit or restrict, is a representative of the lead agency council.
payment under subsection (a) of section 1903 designated under § 303.500 may not (Authority: 20 U.S.C. 1441(b))
of the Social Security Act for medical serve as the chairperson of the Council.
assistance for covered services furnished to (Authority: 20 U.S.C. 1441(a)) § 303.602 Use of funds by the Council.
an infant or toddler with a disability because (a) General. Subject to the approval of
those services are included in the child’s Note to § 303.600: To avoid a potential
conflict of interest, it is recommended that the Governor, the Council may use
IFSP adopted pursuant to part C of the Act.
parent representatives who are selected to funds under this part—
serve on the Council not be employees of any (1) To conduct hearings and forums;
§ 303.528 Reimbursement procedure.
agency involved in providing early (2) To reimburse members of the
Each system must include a intervention services. Council for reasonable and necessary
procedure for securing the timely It is suggested that consideration be given expenses for attending Council meetings
reimbursement of funds used under this to maintaining an appropriate balance and performing Council duties
part, in accordance with § 303.527(b). between the urban and rural communities of
(including child care for parent
the State.
(Authority: 20 U.S.C. 1435(a)(12)) representatives);
Reporting Requirements (3) To pay compensation to a member
§ 303.601 Composition.
of the Council if the member is not
§ 303.540 Data collection. (a) The Council must be composed as employed or must forfeit wages from
follows: other employment when performing
(a) Each system must include the (1)(i) At least 20 percent of the
procedures that the State uses to official Council business;
members must be parents, including
compile data on the statewide system. (4) To hire staff; and
minority parents, of infants or toddlers
The procedures must— (5) To obtain the services of
with disabilities or children with
(1) Include a process for— professional, technical, and clerical
(i) Collecting data from various disabilities aged 12 or younger, with
personnel, as may be necessary to carry
agencies and service providers in the knowledge of, or experience with,
out the performance of its functions
State; programs for infants and toddlers with
under this part.
(ii) Making use of appropriate disabilities.
(b) Compensation and expenses of
sampling methods, if sampling is (ii) At least one member must be a
Council members. Except as provided in
permitted; and parent of an infant or toddler with a
paragraph (a) of this section, Council
(iii) Describing the sampling methods disability or a child with a disability
members must serve without
used, if reporting to the Secretary; and aged six or younger.
(2) At least 20 percent of the members compensation from funds available
(2) Provide for reporting data required under this part.
under section 618 of the Act that relates must be public or private providers of
to this part. early intervention services. (Authority: 20 U.S.C. 1438, 1441 (c) and (d))
(b) The information required in (3) At least one member must be from
§ 303.603 Meetings.
paragraph (a)(2) of this section must be the State legislature.
(4) At least one member must be (a) The Council must meet at least
provided at the time and in the manner
involved in personnel preparation. quarterly and in such places as it deems
specified by the Secretary.
(5) At least one member must— necessary.
(Authority: 20 U.S.C. 1435(a)(14)) (i) Be from each of the State agencies (b) The meetings must—
Use of Funds for State Administration involved in the provisions of, or (1) Be publicly announced sufficiently
payment for, early intervention services in advance of the dates they are to be
§ 303.560 Use of funds for administration. to infants and toddlers with disabilities held to ensure that all interested parties
A lead agency may use funds under and their families; and have an opportunity to attend; and
this part that are reasonable and (ii) Have sufficient authority to engage (2) To the extent appropriate, be open
necessary for administering the State’s in policy planning and implementation and accessible to the general public.
early intervention program for infants on behalf of these agencies. (c) Interpreters for persons who are
and toddlers with disabilities. (6) At least one member must— deaf and other necessary services must

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be provided at Council meetings, both (ii) Taking steps to ensure that any (Authority: 20 U.S.C. 1441(e)(1)(A))
for Council members and participants. policy problems identified under
§ 303.652 Applications.
The Council may use funds under this paragraph (a)(3)(i) of this section are
part to pay for those services. resolved; and Each Council must advise and assist
(4) To the extent appropriate, assist the lead agency in the preparation of
(Authority: 20 U.S.C. 1441 (c) and (d))
the lead agency in the resolution of applications under this part and
§ 303.604 Conflict of interest. disputes. amendments to those applications.
No member of the Council may cast (b) Each Council may advise and (Authority: 20 U.S.C. 1441(e)(1)(B))
a vote on any matter that would provide assist the lead agency and the State
§ 303.653 Transition services.
direct financial benefit to that member educational agency regarding the
or otherwise give the appearance of a provision of appropriate services for Each Council must advise and assist
conflict of interest. children aged birth to five, inclusive. the State educational agency regarding
(Authority: 20 U.S.C. 1441(f)) (c) Each Council may advise the transition of eligible children under
appropriate agencies in the State with this part to preschool services under
Functions of the Council respect to the integration of services for part B of the Act or other appropriate
infants and toddlers with disabilities services.
§ 303.650 General.
(a) Each Council must— and at-risk infants and toddlers and (Authority: 20 U.S.C. 1441(e)(1)(C))
(1) Advise and assist the lead agency their families, regardless of whether at-
§ 303.654 Annual report to the Secretary.
in the development and implementation risk infants and toddlers are eligible for
early intervention services in the State. (a) Each Council must—
of the policies that constitute the
statewide system; (Authority: 20 U.S.C. 1441(e)(1)(A) and (e)(2)) (1) Prepare an annual report to the
Governor and to the Secretary on the
(2) Assist the lead agency in achieving
§ 303.651 Advising and assisting the lead status of early intervention programs
the full participation, coordination, and agency in its administrative duties. operated within the State for children
cooperation of all appropriate public
Each Council must advise and assist eligible under this part and their
agencies in the State;
the lead agency in the— families; and
(3) Assist the lead agency in the
effective implementation of the (a) Identification of sources of fiscal (2) Submit the report to the Secretary
statewide system, by establishing a and other support for services for early by a date that the Secretary establishes.
process that includes— intervention programs under this part; (b) Each annual report must contain
(i) Seeking information from service (b) Assignment of financial the information required by the
providers, service coordinators, parents, responsibility to the appropriate agency; Secretary for the year for which the
and others about any Federal, State, or and report is made.
local policies that impede timely service (c) Promotion of the interagency (Authority: 20 U.S.C. 1441(e)(1)(D))
delivery; and agreements under § 303.523. BILLING CODE 4000–01–U

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[FR Doc. 00–21969 Filed 9–1–00; 8:45 am]

BILLING CODE 4000–01–C

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