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Subpart A—General
Definitions
- The definition of multidisciplinary in § 303.24 has been revised with respect to the individualized family service plan (IFSP) Team composition to require the parent and two or more individuals from separate disciplines or professions with one of these individuals being the service coordinator.
- Revised § 303.25(a) and new § 303.321(a)(5) and (a)(6) clarify that in the case of a child who is limited English proficient, native language means the language normally used by the parents of the child except that when conducting evaluations and assessments of the child, qualified personnel determine whether it is developmentally appropriate to use the language normally used by the child. Additionally, we have removed the requirement in proposed § 303.25(a)(2) that the native language of the parents be used in all direct contact with the child.
- We have revised the definition of personally identifiable information in § 303.29 to cross-reference, with appropriate modifications, the definition of that same term contained in the regulations under the Family Educational Rights and Privacy Act (FERPA) in 34 CFR 99.3, as amended.
- New § 303.32 adds to these regulations a definition of scientifically based research, which cross-references, with appropriate modifications, the definition of the same term contained in section 9101(37) of the Elementary and Secondary Education Act of 1965, as amended (ESEA).
Subpart C—State Application and Assurances
Application Requirements
- Section 303.203(b)(2) clarifies that the State's application must include, as part of coordination of all resources, those methods the State uses to implement the payor of last resort requirements in § 303.511.
- Revised § 303.208(b), regarding public participation policies and procedures, requires lead agencies to hold public hearings, provide at least 30 days' prior notice for the hearings, and provide a public comment period of at least 30 days before adopting any new or revised part C policies or procedures.
- Revised § 303.209(b)(1)(i) (proposed § 303.209(b)(2)(i)) requires that, for toddlers with disabilities who may be eligible for preschool services under part B of the Act, the lead agency notify (consistent with any opt-out policy adopted by the State under § 303.401(e)), not only the local educational agency (LEA) where the toddler resides, but also the State educational agency (SEA), and revise the timeline for the notification to occur not fewer than 90 days before the toddler's third birthday.
- New § 303.209(b)(1)(ii) clarifies that if the lead agency determines a child to be eligible for part C services between 45 and 90 days prior to the toddler's third birthday, the lead agency must notify (consistent with any opt-out policy adopted by the State under § 303.401(e)), not only the LEA where the toddler resides, but also the SEA, as soon as possible after the toddler's eligibility determination.
- New § 303.209(b)(1)(iii) provides that if a child is referred to the lead agency fewer than 45 days before that toddler's third birthday, the lead agency is not required to conduct the initial evaluation, assessment, or IFSP meeting, and if that child may be eligible for preschool services or other services under part B of the Act, the lead agency, with the parental consent required under § 303.414, must refer the toddler to the SEA and appropriate LEA.
- Revised § 303.209(d)(2) clarifies that the transition plan is not a separate document, but is included in the IFSP.
- New § 303.209(e) clarifies that a transition conference under § 303.209(c) or meeting to develop the transition plan under § 303.209(d) must meet the IFSP meeting requirements in §§ 303.342(d) and (e) and 303.343(a) and that this conference and meeting may be combined.
- New § 303.209(f) clarifies when and what transition requirements in § 303.209 apply to toddlers with disabilities, including toddlers in a State that elects to offer part C services beyond age three under § 303.211.
- Revised § 303.211(b)(6) clarifies the transition requirements that apply to children receiving services under § 303.211 as they transition to preschool, kindergarten or elementary school.
- Proposed § 303.225 has been revised to include the MOE requirements in current § 303.124. The Department intends to issue an NPRM on the MOE provisions and provide an opportunity for the public to comment on the proposed rule.
Subpart D—Child Find, Evaluations and Assessments, and Individualized Family Service Plans
General
- New § 303.300 identifies the major components of the statewide comprehensive, coordinated, multidisciplinary interagency system by specifically distinguishing between pre-referral activities (public awareness and child find), referral, and post-referral IFSP activities (including screening, evaluations, assessments, and IFSP development, review, and implementation).
Pre-Referral Procedures
- Revised § 303.301(c) (proposed § 303.300(c)) requires each lead agency, as part of its public awareness obligation, to provide for informing parents of toddlers about preschool programs under section 619 of the Act not fewer than 90 days prior to the toddler's third birthday.
- Revised new § 303.302(c)(1)(ii) (proposed § 303.301(c)(1)(ii)) adds the following two programs to the list of programs with which the lead agency must coordinate its child find efforts: (1) The Children's Health Insurance Program (CHIP) and (2) the State Early Hearing Detection and Intervention (EHDI) system. Since the publication of the May 2007 NPRM, the name of the State Children's Health Insurance Program (S-Chip) was changed to the “Children's Health Insurance Program (CHIP).” This change is reflected in these final regulations.
- Revised § 303.303(a)(2)(i) requires primary referral sources to refer a child to the part C program “as soon as possible but in no case more than seven days” after identification.
Post-Referral Procedures
- New § 303.310 (proposed § 303.320(e)(1)) requires that, within 45 days after the lead agency or early intervention service (EIS) provider receives a referral of a child, the screening (if applicable), initial evaluation, initial assessments (of the child and family), and the initial IFSP meeting for that child must be completed (45-day timeline).
- New § 303.310(b)(2) adds an exception to the 45-day timeline if the parent has not provided consent to the initial screening, evaluation, or assessment of the child, despite documented, repeated attempts to obtain parental consent. Revised § 303.310(c) (proposed § 303.320(e)(2)) requires the lead agency to ensure completion of the initial evaluation, assessments, and IFSP meeting as soon as possible after parental consent is provided.
- Revised § 303.320 (proposed § 303.303) requires the lead agency to provide notice to parents of its intent to screen and clarifies that, at any time during the screening process, a parent may request an evaluation.
- Revised § 303.321(a)(2)(i) (proposed § 303.320) clarifies that (1) the term initial evaluation refers to the evaluation of a child that is used to determine his or her initial eligibility under part C of the Act and (2) the term initial assessments refers to the assessment of the child and the family assessment that are conducted prior to the child's first IFSP meeting.
- New § 303.322 clarifies that the prior written notice requirements in § 303.421 apply when the lead agency determines, after conducting an evaluation, that a child is not an infant or toddler with a disability.
- Revised § 303.342(e) requires early intervention services to be provided as soon as possible after parental consent.
Subpart E—Procedural Safeguards
Confidentiality of Personally Identifiable Information and Early Intervention Records
- New § 303.404(d) requires that the general notice provided to parents by the lead agency specify the extent to which that notice is provided in the native languages of the various population groups in the State.
- Section 303.405(a), regarding a parent's rights to inspect and review any early intervention records and the timeline the lead agency must follow any time a parent makes such a request, is revised to require that the participating agency must comply with a parent's request without unnecessary delay and in no case more than 10 days after the parent makes the request to inspect and review records.
- New § 303.409(c) requires the participating agency to provide at no cost to the parent, a copy of each evaluation, assessment of the child, family assessment, and IFSP as soon as possible after each IFSP meeting.
- Section 303.414(b) sets forth the specific exceptions to the parental consent required before a participating agency may disclose personally identifiable information under these regulations.
- Proposed § 303.414(d), regarding limited disclosures of personally identifiable information in early intervention records that may be sought by Protection and Advocacy (P&A) agencies, has been removed.
Parental Consent and Surrogate Parents
- Section 303.420(c) is revised to indicate that a lead agency may not use the due process hearing procedures under this part or under part B of the Act to challenge a parent's refusal to provide any consent required under § 303.420(a), which includes consent for evaluations and assessments.
- New § 303.422(g), concerning lead agency responsibility concerning surrogate parents, adds a 30-day timeline requirement regarding the lead agency's obligation to make reasonable efforts to ensure the assignment of a surrogate parent after a public agency determines that the child needs a surrogate parent.
Dispute Resolution Options
- New § 303.437(c) permits the due process hearing officer, in a State that elects to adopt the part C due process hearing procedures under § 303.430(d)(1), to grant specific extensions of time beyond the 30-day timeline at the request of either party.
- Section 303.446 is revised to permit, but not require, the lead agency to establish procedures that would allow any party aggrieved by the findings and decision in the due process hearing to appeal to, or request reconsideration of the decision by, the lead agency.
Subpart F—Use of Funds and Payor of Last Resort
- Section 303.520(a) establishes three new requirements that are designed to provide important protections for parents of infants and toddlers with disabilities balanced against the need for States to have access to public benefits and public insurance to finance part C services while implementing the system of payments, coordination of funding sources, and payor of last resort requirements under part C of the Act. Under this section, a State must obtain a parent's consent prior to requiring a parent to enroll in a public benefits or insurance program or if the use of funds from a public benefits or insurance program imposes certain costs on the parent. This section also requires a State to provide written notice to parents of applicable confidentiality and no-cost protections if the State lead agency or EIS provider or program uses public benefits or insurance to pay for part C services.
- Section 303.521(a) is revised to provide that the State's system of payments policies must include the State's definition of ability to pay and indicate when and how the agency makes its determination regarding the parent's ability or inability to pay.
- A new § 303.521(e) is added to address a parent's procedural safeguard rights under a State's system of payments.
Subpart G—State Interagency Coordinating Council
- Proposed § 303.601(a), which states that a parent member on the Council may not be an employee of a public or private agency involved in providing early intervention services, has been removed.
- New § 303.605(c) permits the Council to coordinate and collaborate with the State Advisory Council on Early Childhood Education and Care, which is required to be established by States under the Improving Head Start for School Readiness Act of 2007.
Subpart H—Federal and State Monitoring and Enforcement; Reporting; and Allocation of Funds
- Section 303.702(b) has been revised to indicate that the State annual reporting to the public, on the performance of each EIS program in relation to the State's Annual Performance Report (APR) targets must be “as soon as practicable but no later than 120 days” following the State's APR submission to the Secretary.[4]
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